Impact on Administrative Law – Recap

• Police (Classical Liberalism) Social Welfare State (New

Liberalism)  Growth/Development of Public Law 5 Functions
of the Executive  Government Accountability  Judicial
Review/Activism.
• Executive performing – Administrative/Quasi-Legislative/Quasi
Judicial Functions.
• Tackling socio-economic issues  Flexibility and Experimentation.
• Rule of Law Doctrine – Law + Equality before Law + Judicial
Intervention – create a balance between societal needs vs.
individual liberty.
• Separation of Power Doctrine – Diluted  diverse powers given the
executive  legislative/judicial  effectively implement policies and
ensure law and order  Backed by the Judiciary.
Executive Law-making 
Delegated Legislation
Module 2
 • Traditional theory (Classical
Liberalism)  Function of the
A Executive  Administer the law
enacted by the legislature.
movement • Social Welfare State  Quantity over
towards Quality.
• Delegated legislation is so
Delegated multitudinous that a statute book
Legislation would not only be incomplete
but misleading unless it be read
. along with delegated legislation
which amplifies and supplements
the law of the land.
 When the function of legislation
Delegated is entrusted to organs other
than the legislature by the
Legislation legislature itself, the
legislation made by such an
organs is called delegated
legislations.
Two Senses of Delegated Legislation
Constitution

Legislature  Statute

The subsidiary rules themselves

which are made by a subordinate
Exercise by a subordinate agency of authority
the legislative power delegated to it
by the legislature.
“Delegated Legislation”
Rules, regulations, bye-laws, order,
“Subordinate Authority”
etc.
 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 – Pre Amendment

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…...]”
Epidemic Diseases Act, 1897 – Post-Amendment

“2A. 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
such measures, as it deems fit and prescribe regulations for the
inspection of any bus or train or goods vehicle or ship or vessel or
aircraft leaving or arriving at any land port or aerodrome, as the
case may be, in the territories to which this Act extends and for
such detention thereof, or of any person intending to travel
therein, or arriving thereby, as may be necessary.”
How did this amendment take place?
 SUPREME LEGISLATION/PARENT
SUBORDINATE LEGISLATION ACT

• Executive or Administrative • Legislature.

Agency. • Does not derive its authority from
• Framed by the executive and any other organ of the State.
owes its existence and
validity to the legislature 
parent act.
Reasons • Pressure upon Parliamentary time.

for Growth •
•
Technicality.
Flexibility.
of • Experiment.
Delegated • Emergency.
• Complexity of Modern
Legislation Administration.
 • Title-Based Classification.
• Discretion-Based
Classification – Conditional
Classificati Legislation.
• Purpose-Based
on of Classification.
Delegated • Nature – Based
Classification (Exceptional
Legislation Delegation).
Title-Based • Rules  rules of procedure/rules of
substantive law.
Classification.
• Regulations  fixing prices/granting
exemptions.
• Order  specific or general
• Bye-laws  established under the acts of
legislature (by an organization or
community).
• Directions  recommendary/mandatory
• Scheme  framework within which
detailed administrative action is to
proceed.

Do these terms imply different

instruments?
Discretion-Based Classification
– Conditional Legislation.

• Discretion vested in the rule-making

authority.
• Provides control but specifies that
they go into effect only when a
given administrative body finds the
existence of conditions defined in
the statute itself.
• Fact-finding in nature (Satisfaction
clause).
• S. 144 CrPC.
Purpose-Based
Classification.

• Nature and extent of

power conferred and
the purpose for
which such power
can be exercised 
power granted for a
specific purpose.
• Power to bring an
act into operation 
what could the
purpose here be?
Roll Call Question
– Is the power to • Yes
bring an Act into • No
operation defying • I don’t know
legislative will?
Nature –Based Such instances include:
Classification (Exceptional • The authority to legislate on the
Delegation). issue of principle.
Henry VIII Clause – Art • The authority to amend an Act of
parliament.
372(2)
• Give broad discretion with almost
impossible to know limits.
• Power to make rules without
being challenged in a court of law.
 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 
Delegated Court of Law doesn’t intervene  ABSOLUTE
DELEGATION.
Legislation in the • Parliament is the only body that can control
UK delegation.
• Committee on Minister's Powers: "The precise
limits of law-making power which Parliament
intends to confer on a Minister should always
be expressly defined in clear 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 
Delegated Doctrinal Barrier.
Legislation in the B. A Delegate cannot further
US legislate (delegatus non
potest delegare)
Congress gets its power from the
people and is a delegate of the
people – cannot further delegate
its legislative powers to the
executive or any other agency.
 II. In Practice  Court
Intervention

Delegated A. Strict adherence to the

Legislation in the separation of powers is not
possible – governmental
US functions have increased.
B. Impossible for the Congress to
enact 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.
 o Legislative or Discretionary Powers?
Field vs. o February 29, 1892,
United States Supreme Court.
by the

Clark – o Issue regarding the

Separation of constitutionality of congressional
Powers 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.
 ‘to suspend by proclamation the free introduction of sugar,
Parent Act - The molasses, coffee, tea and hides when he is satisfied that
Tariff Act of any country producing such articles imposes duties or other
exactions upon the agricultural or other products of the
1890 - section 3 United States which he may deem to be reciprocally
unequal or unreasonable.’
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.
Held

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

Panama Refining Co. v

Ryan, 293 U.S. 388

1935 1943

National Broadcasting Co.,

Inc. v United States, 319
U.S. 190
Panama Refining Co. v Ryan, 293 U.S. 388 (1935)

• Case decided on January 7, 1935, by

the United States Supreme Court.
• the constitutionality of Section 9(c) of Title I of
the National Industrial Recovery Act, 1933,
which had authorized the President to "prohibit
the transportation in interstate and foreign
commerce of petroleum" in excess of state
quotas, and to punish violators with fines and
jail time.
Facts
• 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. 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.
Section 9(C) NIRA Act.

“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 valid regulation or order prescribed 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.”
Was the executive order regulating petroleum
commerce constitutional?

• Section 9(c) of the National Industrial Recovery Act

unconstitutionally delegated legislative power to the
President, which also rendered the executive orders
governing hot oil invalid.
• the validity of the Department of Interior's regulations
rested on the constitutionality of Section 9(c) of the
NIRA, which was the original source of their authority.
• that the allowance or prohibition of transportation of
goods was "obviously one of legislative policy," meaning
that a delegation of power had occurred.
• A.L.A. Schechter Poultry Coup vs. United States 
Section 3 NIRA Act, declared unconstitutional.
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.  Intelligible Principle

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 Co.,
Inc. v United States, • Independent Regulatory
Commission (4th Branch)
319 U.S. 190 (1943)  Federal
Communications
Commission (FCC).
• Established under the
Communications Act,
1934  7-person board.
• 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
interest, convenience, 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 * *
*.'
Facts
• 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 “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
Court’s Opinion
• 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 with each other. But
the Act does not restrict the Commission merely to supervision
of the traffic. It 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.
Contd..
• 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 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.  purpose of the legislation.
• 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
 Pre-Independence  When the Privy Council was the
highest court of appeal.
R vs. Burah (1877-78)
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 the Council of the Governor-General for making laws and
regulations shall be deemed to extend to any part of the said territory unless the
same was specifically named therein."
It removed Garo hills from the civil and criminal jurisdiction of Bengal and placed its
administration under an officer appointed by the Lt. Governor.
Section 9 of the Act, authorized the Lt. Governor, to extend the provisions of the Act, to Khasi
and Jantia Hills, with incidental changes.
Burah was tried for murder by the Commissioner of Khasi and Jaintia Hills and was
subsequently sentenced. Burah, challenged the notification The Calcutta High Court held that
Section 9 was ultra vires the power of the Indian Legislature  Court that the Indian Legislature
was a delegate or an agent of the British Parliament. (Sub-delegation)
 Pre-Independence  When the Privy Council was the
highest court of appeal.

R vs. Burah
 Pre-Independence  When the Privy Council was the
highest court of appeal.

R vs. Burah
Opinion of the Privy Council
• 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 question. He was not given any
power to modify any law.
• 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.
• 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.
Pre-Constitution  When the Federal Court became the
highest court of appeal.

Jatindra Nath Gupta vs. Province of Bihar (Purpose-Based) (1949)

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 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.
Held:
Power to extend the operations of the Act beyond the period of one year was a legislative act
and therefore cannot be delegated.
There could be no delegation of legislative powers beyond conditional legislation – extreme
restrictive.
Dissenting Opinion (Fazl Ali J.):
Upheld the provision as the extension of the Act, for a further period of one year – could not
amount o re-enactment. It merely amounted to a continuance of the Act for which the
maximum period was contemplated by the legislature itself.
Post-Constitution
• 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 sections.
• In Re Delhi Laws Case.
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 – • Was section 7 of the Delhi Laws Act, 1912,
Constitution 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
When the thereof and in what particular or
Supreme Court particulars or to what extent ultra vires
the Legislature which passed the said Act?
became the • Is section 2 of the Part C States (Laws)
highest court Act, 1950, or any of the provisions thereof
and in what particular or particulars or to
of appeal. what extent ultra vires the Parliament?
Principles
to be • Power to Legislate includes the
Power to delegate.
assessed  • The limits of delegation.
What comes • Delegation of Power to make
within the modification and alterations.
• Repeal of Law.
confines of
DL?
 J. Kania - Three Basic Tests

• 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.
 J. Kania - Three Basic Tests

• 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  should be
explicitly mentioned in the rule of law.
(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 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.
 J. Mukherjee
"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 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.”
excessive delegation  when should the courts interfere?
Views were based on
• 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.
• Parliament cannot completely abdicate itself by creating a
parallel authority Only ancillary functions can be delegated 
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.
Take-aways
• 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 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 like in the US.
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 (Weaving)
vs. Asst. Commissioner of Sales Tax and
Others – AIR 1974 SC 1660

Whether the provisions of s. 8(2) (b) of the Central

Sales Tax Act, 1956 (Act 54 of 1956) (hereinafter
referred to as the Act). suffer from the vice of
excessive delegation?
S. 8(2)(b)

Section 8 : Rates of tax on sales in the course of inter-State trade or commerce

(2) The tax payable by any dealer on his turnover in so far as the turnover or any
part thereof relates to the sale of goods in the course of inter-State trade or
commerce not falling within sub-section (1)--

(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.
Gwalior Rayon Silk Manufacturing (Weaving)
vs. Asst. Commissioner of Sales Tax and
Others – AIR 1974 SC 1660

• 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 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.
Gwalior Rayon Silk Manufacturing (Weaving)
vs. Asst. Commissioner of Sales Tax and
Others – AIR 1974 SC 1660

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 delegate.
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.
 B. Shama Rao v. U.T of Pondicherry (1967)

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

Meanwhile, the Madras Act was amended by the Legislative Assembly of Madras. In
March 1966, the central executive came out with a notification that from April, 1966
provisions of Madras General Sales Tax Act shall be applicable in 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 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.
 General Sales Tax Act

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)

Section 2 (1) of the Act provided:

"The Madras General Sales Tax Act, 1959…as 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..."
Whether the notification of the government declaring the operation of the
Madras General Sales Tax Act, 1959 suffers from excessive delegation?

• In Re Delhi Case doesn’t apply  The ‘practical necessity’ ,

that existed due to the lack of a Legislative Assembly doesn’t
apply.
• Pondicherry had an assembly of its own which could have
later applied its mind before blindly adopting the provisions
of Madras Sales Tax Act, 1959  based on an executive order.
• Legislature is not performing its legislative function  seeing
how the law fits into the current territory and applying it
accordingly  rather it let the executive order decide for it.
• Case of excessive delegation  executive notification
is void.
Excessiv • Excessive Delegation is
e unconstitutional.
Delegati • Primary legislative functions
on must be performed by the
legislature.
• Essential functions include
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.
Test - Challenge of the vires of any
statute

Whether it delegates essential legislative

functions?
Whether the legislature has enunciated its
policy and principle for the guidance of the
executive?
 Powers and Duties of the Courts
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 been laid down.

The scheme of the statute including 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.
Facts - provision of impugned Act
Rajnarain Singh empowering Patna Local admn. to
vs. Chairman, select provision of the Bengal
Municipality Act,1884 and apply it to
Patna Patna area with such restriction &
Administration modification deemed fit by govt.
Committee,
Patna and Anr. Held- power to pick out a section of
one Act for application in another
AIR 1954 SC area amounts to delegating the
569 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
Held: The delegation is valid on the ground that
Bagla vs. State Section 3 lays down the legislative policy with
sufficient clarity within which the government
of M.P. – AIR can operate.
“this Court observed that the legislature must
1954 SC 465 declare the policy 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 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….
• Petition under Art. 32 was filed.
• Raised the question of the
Constitutionality of the Drugs and
Magic Remedies (Objectionable
Facts Advertisements) Act.
 Validity was challenged

• 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 impose
arbitrary and excessive restrictions on the
petitioners rights under Art. 19(1) (f) 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.
 History of the 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.
 Sec. 3 read with S. 16.

Section 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—
(a) the procurement of miscarriage in women or prevention of
conception in women; or
(b) the maintenance or improvement of the capacity of human
beings for sexual pleasure; or
(c) the correction of menstrual disorder in women; or
(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 with S. 16.

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."
 Excessive Delegation

• A part of s. 3 was declared unconstitutional on the ground of excessive

delegation of legislative power.
• The section banned publication of any advertisement calculated to the
use of drug for diagnosis, cure, etc. of ant venereal disease or ‘any
other disease or condition which may be specified in rules
made under this Act.’
• 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.
 Excessive Delegation

• 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
into consideration to include a particular condition or
disease.
• Goes beyond the permissible boundaries of valid delegation.
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?” - DY 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?
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.

 Lachmi Narain V. Union Of India & Ors, 1966

• Part C States (Laws) Act, 1950  Union Territories (Laws) Act, 1950
(1956)
• In 1951, the Central Government, in exercise of this power, extended
by a Notification the Bengal Finance (Sales Tax) Act, 1941, to the
then State of Delhi with certain modifications in s. 6.
• 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 words “not less than 3 months' notice” in s. 6(2).
• By various notifications, exemption from sales tax was granted to 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
Ultra the Bengal Act, is beyond the
powers of the Central
Vires the Government, conferred on it, by
The various notifications, in so far
s. 2 of the Union Territories (Laws)
Statute? as they with drew exemptions
Act, 1950.
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
 • 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 not a separate and
Powers independent power, which can be exercised apart from
the power of extension but is an integral constituent of

under the power of extension.

• There are 3 limits on the power given by s. 2. (i) The

Section 2 power 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
Essential legislative function, which could not be delegated to
the Government.
Legislative • Imposition of a new tax of exemption does not
cause dislocation or inconvenience either to the
Feature. dealer or the Revenue.
• 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
1957 the Act by the 1951-
Notification, it amended the
Notificatio sub-section indirectly by
n amending the 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

Powers? permissible. And, 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.

Court Held • The power given by s. 2 of the Laws Act had

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
Ramesh extend, with such restrictions and
modifications as it thought fit, to the
Birch & Union Territory of Chandigarh any enactment
which was in force in a State at the date of the
Ors V. notification
• Section 89 - the Appropriate Government
Union Of may, before the expiration of two years
India & from that day, by order, make such
adaptations and modifications of the law,
Ors whether by way of repeal or amendment,
as may be necessary or expedient, and
[1989] 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.

Facts
• By a notification dated 15th December 1986 in exercise of
its power 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
Court Held enunciating the standards which are to be enacted
into a rule of law. This function cannot be 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
 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
Removal difficulties may arise during the
implementation, a ‘removal of difficulties’
of clause allows the Govt. to remove any
difficulties when putting the law in
Difficulties operation.
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 existing laws.
Nature of
III. Power conferring such wide
Powers 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 Section 37 - If any difficulty or doubt

Mill arises in giving effect to the provisions
of this Act, the Central Government
Mazdoor may, by order published in the Official
Union Gazette, make such provision, not
inconsistent with the purposes of this
(1966) Act 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
Held would amount to exercise of legislative
authority and that 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
Gammon to the excessive delegation.

India Ltd. II. It was an instance of a narrow Henry VIII

Clause because it did not vest in the Central
Etc. Etc Government the power to amend the
provision of the parent statute on the excuse

vs Union of removing doubts and difficulties.

III. Upholding the validity of Section 34, made a
Of India differentiation between the facts of the case
from the case of Jalan Trading, stating that
& Ors. unlike in the former case, Section 34, in this
case, did not:
Etc a) Contain the finality clause.
b) Allow the alterations to be made to the
provisions of the Parent Act.
 34. Power to remove difficulties
Section 34 If any difficulty arises in giving effect
to the provisions of this Act, the
in the Central Government may, by order
Contract published in the Official Gazette,
Labour make such provisions not
inconsistent with the provisions of
(Regulatio this Act, as appears to it to be
n and necessary or expedient for removing
Abolition) the difficulty.
Act, 1970
Different from the Jalan Trading?
Removal Section 37 - If any
difficulty or doubt arises in
Section 34 - If any
difficulty arises in giving
giving effect to the
of provisions of this Act, the
effect to the provisions of
this Act, the Central
Central Government may,
Difficulties by order published in the
Official Gazette, make
Government may, by order
published in the Official
such provision, not Gazette, make such
inconsistent with the provisions not inconsistent
purposes of this Act as with the provisions of this
appears to it to be Act, as appears to it to be
necessary or expedient for necessary or expedient for
the removal of the removing the difficulty.
difficulty or doubt; and the
order of the Central
Government, in such
cases, shall be final.
Gammon India
Jalan Trading Case
 • Broad Henry VIII clause is not
What the invalid.
Court got • Other factors – finality clause  that
make it excessive.
wrong.
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
 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
Court Held State.
• 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.
 • 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
Post the government, whether taken on the advice of the Ministers
or otherwise, must be taken in the name of the LG.

Judgment • Greatly reduce the efficiency and timeliness of the

Delhi 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.