Delegated Legislation: An Analytical Study of Its Nature, Necessity, and Constitutional Control in India

This Article is Written by Yashi Gupta, Student of KCC Institute of Legal and Higher Education.

Abstract

In an era of rapid socio-economic transformation and increasing legislative complexity, the mechanism of delegated legislation has emerged as a pragmatic solution to the limitations of parliamentary law-making. Delegated legislation refers to the process by which the legislature confers law-making powers upon the executive or subordinate bodies, allowing them to formulate rules, regulations, and by-laws necessary for implementing the provisions of a statute. While this practice facilitates flexibility, efficiency, and technical expertise in governance, it also raises constitutional and democratic concerns regarding separation of powers and accountability. This article explores the nature, scope, and rationale of delegated legislation in India, critically evaluates its constitutional validity, examines judicial responses, and suggests reforms for ensuring its balanced application.

Introduction

In modern democratic states, governance is no longer confined to enacting a limited number of general laws. Contemporary legislative functions have grown increasingly complex, technical, and voluminous, necessitating prompt administrative responsiveness and sectoral expertise. Against this backdrop, the doctrine of delegated legislation, which enables legislative bodies to delegate law-making powers to subordinate entities, has become essential to modern public administration.

In the Indian context, delegated legislation occupies a pivotal position in the constitutional scheme, albeit with nuanced judicial control. The Constitution does not explicitly refer to delegated legislation; however, the practice is recognised through statutory authorisation and judicial interpretation. The core issue lies in reconciling the need for administrative convenience with the constitutional principles of rule of law, parliamentary supremacy, and separation of powers. Therefore, the legitimacy of delegated legislation hinges upon the condition that essential legislative functions must remain with the legislature while only ancillary or procedural details may be delegated.

This article critically engages with the legal foundations, necessity, permissible limits, and constitutional safeguards surrounding delegated legislation in India. It also examines judicial decisions that have shaped the doctrine’s development and highlights necessary reforms to prevent the misuse of delegated authority.

Evolution and Historical Background

The concept of delegated legislation is rooted in English administrative law. In the United Kingdom, where parliamentary sovereignty is a central tenet, Parliament frequently enacts statutes with broad policy statements and delegates power to the executive to fill in the details. This practice gained momentum particularly during the two World Wars, when swift executive decisions were necessary.

In India, the colonial administration under the Government of India Acts 1919 and 1935 laid the groundwork for delegated legislation. Post-independence, this practice continued as the Indian Parliament faced the challenge of legislating for a vast and diverse population, often in technical areas requiring detailed regulation. The Constitution of India did not prohibit delegation, which led the courts to interpret its boundaries and limitations.

Nature and Definition of Delegated Legislation

The nature of delegated legislation is that it is subordinate, derivative, and conditional. It originates not from the Constitution or inherent authority, but from a statute enacted by the legislature, which delegates specific law-making powers to a subordinate authority such as the executive, local bodies, or statutory agencies. This delegation is strictly limited to the scope defined by the parent Act, meaning the delegated authority cannot go beyond or contradict the enabling legislation.

Delegated legislation is practical in nature. It exists to manage the technical, procedural, and frequently changing aspects of law that the legislature cannot efficiently handle within its limited time and broader policy focus. It is instrumental in modern governance, ensuring flexibility, adaptability, and administrative efficiency. However, despite its utility, it does not possess independent legislative status and is subject to both judicial and legislative control to prevent abuse or overreach of delegated powers.

Definitions of Delegated Legislation by Eminent Scholars

1. Sir Cecil Carr, a distinguished scholar on administrative law, defines delegated legislation as:

“Delegated legislation is a term which covers a multitude of confusing powers whereby Ministers and other authorities are given power to make rules of law.”

• In the words of Prof. Wade and Forsyth, delegated legislation is:

“Rules of law made under the authority of an Act of Parliament by an inferior body.”
This definition succinctly explains the subordinate nature of delegated legislation and its statutory basis.

• Salmond, in his treatise on jurisprudence, describes delegated legislation as:

“That which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior authority.”

• Keeton explains it as:

“The exercise of legislative power by an authority other than the sovereign, by virtue of powers delegated to it by the sovereign.”

Constitutional Basis of Delegated Legislation in India

Delegated legislation in India finds its constitutional basis primarily in the Indian Constitution, which sets out the structure and powers of the legislature and executive. While the Constitution does not explicitly mention the term “delegated legislation,” it creates a framework that allows for the delegation of legislative powers in specific contexts. Below is a detailed analysis of the constitutional provisions that support the delegation of legislative authority:

1. Article 245: Extent of Laws Made by Parliament and the States

Article 245 of the Indian Constitution provides that Parliament has the authority to make laws for the whole of India, and state legislatures can legislate for their respective states. This article lays the foundation for the delegation of legislative power. While Parliament and state legislatures have the power to enact laws, they often delegate certain aspects of the law-making process to executive authorities through delegated legislation. The delegation must be under the framework of the parent statute, which defines the scope and limits of the powers conferred.

• Article 248: Residuary Powers of Legislation

Article 248 grants Parliament the residuary legislative powers, meaning that Parliament can legislate on matters not enumerated in the Union List, State List, or Concurrent List. In cases where Parliament exercises this residuary power, it may delegate certain legislative functions to other authorities to deal with specific issues that require detailed attention. For example, technical rules and regulations can be made under this residuary power.

• Article 298: Power to Carry on Trade, etc.

Article 298 grants the executive the authority to carry on trade and commerce. In doing so, it can make necessary rules, regulations, and orders for effective implementation. This provision facilitates delegated legislation, particularly in areas like trade, commerce, and industry, where the executive plays an active role in regulation. This delegation is crucial for managing day-to-day administrative functions that the legislature cannot address directly in every instance.

• The Doctrine of Delegated Legislation

The doctrine of delegated legislation is supported by various constitutional provisions that allow the executive to make rules and regulations under the authority of laws passed by the legislature. While the Indian Constitution does not specifically use the term “delegated legislation,” it creates a legal space for such delegation. For example, laws can empower administrative authorities or government ministers to fill in the details of legislative acts through rules and regulations. This delegation is necessary to handle complex and technical matters that require flexibility and expert handling.

• The Doctrine of “Necessary Implication”

Indian courts have consistently upheld the doctrine of necessary implication, which asserts that the Constitution allows for the delegation of certain legislative powers as long as they do not infringe upon the core functions of the legislature. Judicial decisions have emphasized that delegated legislation must align with the purpose of the parent Act and cannot conflict with its core objectives. This principle ensures that the delegation of legislative authority is done within well-defined limits.

• Judicial Review and Control

Although the Constitution provides for delegated legislation, it is not without limits. Judicial review plays a critical role in ensuring that delegated legislation remains within the confines of the parent Act. Courts have the authority to review whether the delegation has exceeded the scope set by the legislature or violated constitutional principles, particularly fundamental rights. The judiciary ensures that the executive does not usurp legislative functions or enact rules that go beyond what was envisaged by the legislature.

Landmark Judicial Precedent:

In Re Delhi Laws Act (1951) In this landmark case, the Supreme Court of India clarified the constitutional limits of delegated legislation. The Court ruled that while delegated legislation is valid, it must not take away or dilute the legislative authority vested in Parliament or state legislatures. This case is often cited to highlight the necessity of clear guidelines and limits on delegated powers.

A.K. Roy v. Union of India (1982) This case reaffirmed that delegated legislation cannot exceed the scope defined by the parent statute. The Supreme Court held that any delegation of legislative power must be controlled and subject to judicial scrutiny, ensuring that such delegation does not violate fundamental rights or undermine the legislative intent.

Classification and Forms

Delegated legislation can take multiple forms depending on the nature and the authority delegated:

Based on the Authority Making the Legislation

• Parliamentary Delegated Legislation: In this form, Parliament or the State Legislature delegates the power to make detailed regulations to the executive. The enabling Act provides broad guidelines, and the executive fills in the details.
  Example: The Motor Vehicles Act, 1988 gives the power to the government to make rules for the regulation of motor vehicles.
• Executive Delegated Legislation: Executive authorities (such as Ministers or government departments) are granted the authority to make rules and regulations. These rules implement or add details to the parent law.
  Example: The Customs Act, 1962, empowers the executive to issue rules related to the import and export of goods.
• Judicial Delegated Legislation: Judicial bodies, like the Supreme Court or High Courts, can be empowered to make rules for judicial procedures or administrative functions.

Example: The Supreme Court Rules that govern the procedures for hearings in the apex court.

Based on the Nature of the Powers Delegated

• Subordinate Legislation The power is delegated to an authority that is subordinate to the legislature, such as government ministries or regulatory bodies. These authorities make rules to provide details on how a parent law should be enforced. Example: The Income Tax Rules, 1962 made under the Income Tax Act, 1961.
• Legislation with Wide Discretion In certain Acts, powers are delegated with significant discretion, allowing the executive to decide on the specifics of regulation or policy within the framework of the Act. This flexibility is necessary for responding to changing circumstances. Example: The Securities and Exchange Board of India (SEBI) regulations created under the Securities and Exchange Board of India Act, 1992 to regulate securities markets.

Based on the Form of Delegated Legislation

• Rules:
  Rules are made by the executive under the authority of a parent Act. They are typically detailed and deal with specific procedures, guidelines, or operational matters.
  Example: The Central Civil Services (Pension) Rules, 1972 made under the Civil Services (Pension) Act.
• Regulations:
  Regulations are often more technical than rules, typically formulated by specialized bodies or agencies. They govern specific industries or sectors and are subject to continuous updates.

Example: Regulations by the Reserve Bank of India (RBI) for regulating financial institutions.

• Orders:
  Orders are used to give effect to specific provisions of a parent Act. They are typically issued by executive authorities and may apply to particular situations or decisions.

Example: Presidential Orders under Article 371 of the Constitution, which provide special provisions for certain states.

• Notifications:
  Notifications are official announcements issued by the government to inform the public about the commencement or implementation of laws or regulatory changes.
  Example: Environmental Notifications issued under the Environment Protection Act, 1986 setting pollution standards.
• By-laws:
  By-laws are made by local authorities (such as municipalities) to manage issues within their jurisdiction, including public health, infrastructure, and local governance.
  Example: By-laws made by municipalities for waste management or city zoning regulations.

This classification based on the authority, the nature of the power delegated, and the form it takes—rules, regulations, orders, notifications, and by-laws—ensures the flexibility, detail, and effectiveness of the law.

Rationale and Necessity

Several compelling reasons necessitate the practice of delegated legislation:

• Detailed Implementation: Primary legislation often outlines broad principles, but delegated legislation provides the technical details and procedures required for effective implementation. Example: The Motor Vehicles Act, 1988 allows detailed rules for road safety and vehicle registration.
• Expertise and Technical Knowledge: Complex or specialized areas, such as finance or health, require expert knowledge to regulate effectively. Delegating power to specialized authorities ensures technical accuracy. Example: The RBI frames regulations for the financial sector under the RBI Act, 1934.
• Flexibility and Adaptability: Delegated legislation allows for quick updates and adjustments to laws based on emerging needs or technological advancements.
  Example: Environmental notifications under the Environment Protection Act, 1986 can be updated to reflect new standards.
• Time Efficiency: It speeds up the law-making process, enabling the executive to implement urgent measures without waiting for parliamentary approval.
  Example: The COVID-19 guidelines were rapidly issued through notifications and orders.
• Local Relevance: Delegation to local bodies allows for region-specific laws, addressing local governance issues more effectively. Example: Municipal by-laws regulating waste management or zoning.
• Ease of Administration: Delegated legislation ensures smooth administration by allowing the executive to issue rules, orders, and regulations without seeking continuous parliamentary approval. Example: The Customs Act, 1962 enables customs orders for efficient enforcement.
• Ensuring Compliance: It reduces ambiguity in the law, ensures better enforcement, and fills gaps in primary legislation. Example: Food Safety Regulations under the Food Safety and Standards Act, 2006.

Judicial Control of Delegated Legislation

Judicial control of delegated legislation is a fundamental aspect of ensuring that the executive’s rule-making power does not exceed constitutional limits. Courts have the authority to review delegated laws for legality, ensuring they align with the parent Act and do not violate constitutional rights. Key principles include ensuring that delegated powers are not exercised arbitrarily or unreasonably, and that they remain within the intent of the legislature. Judicial review also examines whether the delegated authority is properly exercised and adheres to due process. However, the courts typically exercise restraint, acknowledging that policy decisions are better suited to the legislature or executive. The principle of ultra vires is central, whereby any delegated legislation found to exceed the scope of its enabling Act is struck down. Ultimately, judicial control serves to maintain legal accountability, prevent executive overreach, and safeguard democratic governance.

Two key principles govern judicial control:

1. Doctrine of Excessive Delegation: Courts may strike down enabling provisions if they allow unrestrained delegation.

A.K. Roy v. Union of India (AIR 1982 SC 710) held that essential legislative functions cannot be delegated.

• Doctrine of Ultra Vires:
• Substantive Ultra Vires: When the delegated rule exceeds the scope of the enabling Act.
• Procedural Ultra Vires: When the procedure for making rules, as prescribed by the parent Act, is violated.

In Agricultural Market Committee v. Shalimar Chemical Works Ltd. [(1997) 5 SCC 516], the Supreme Court invalidated rules that were inconsistent with the parent legislation.

In Anuradha Bhasin v. Union of India [(2020) 3 SCC 637], the Court held that executive orders affecting fundamental rights must follow the principle of proportionality and procedural transparency.

Legislative and Parliamentary Oversight

Delegated legislation is subject to legislative review, primarily through the “laying procedure”. Under this, the rules or regulations are laid before Parliament or State Legislatures, which may modify or annul them.

In a constitutional democracy, parliamentary oversight of delegated legislation is a safeguard against the dilution of legislative authority. While the executive may draft rules for administrative convenience, it is Parliament that holds the ultimate law-making power. This control is exercised through the laying procedure, where every piece of delegated legislation must be placed before the legislature for review, and through the Committee on Subordinate Legislation, which ensures that such rules do not exceed the limits of the parent Act or violate constitutional principles. These mechanisms reflect the foundational doctrine of separation of powers, ensuring the executive remains within its delegated domain. Yet, despite these checks, practical gaps like non-binding committee findings, legislative backlog, and limited debate often allow rules to pass without scrutiny. Thus, while oversight exists in form, its effectiveness in substance depends on timely review, institutional discipline, and a firm commitment to democratic accountability.

Democratic Concerns and Criticism

While delegated legislation is essential for efficient governance, it often raises serious democratic concerns, particularly in a constitutional setup like India where separation of powers and parliamentary sovereignty are foundational principles.

1. Erosion of Legislative Supremacy

Delegation involves transferring legislative power to the executive, which may dilute the authority of Parliament. When significant rules are framed without legislative debate, the role of elected representatives in shaping the law is undermined, weakening representative democracy.

2. Executive Overreach and Lack of Accountability

Broad or vague enabling provisions often allow the executive to frame rules with minimal checks, leading to concentration of power. Unlike primary legislation, delegated laws escape detailed deliberation, increasing the risk of arbitrary or politically influenced regulations.

3. Absence of Transparency and Public Participation

Many rules and notifications are enacted without public consultation or awareness. This non-transparent process excludes civil society and stakeholders, contradicting democratic ideals of participation and openness in law-making.

4. Inadequate Parliamentary Oversight

While mechanisms like the Committee on Subordinate Legislation exist, their recommendations are not binding. Limited time in Parliament, coupled with the volume of delegated legislation, results in insufficient scrutiny, allowing rules to be enacted without rigorous checks.

5. Potential Infringement of Fundamental Rights

Delegated legislation has, at times, impacted constitutional rights such as freedom of movement, expression, and privacy without adequate legislative scrutiny. This raises serious concerns regarding constitutional accountability and the principle of legality.

Comparative Perspective

United Kingdom: In the United Kingdom, delegated legislation plays a vital role in the functioning of the legal and administrative machinery. Rooted in the doctrine of parliamentary sovereignty, Parliament possesses the authority to delegate legislative powers to the executive and other bodies. The most common forms of delegated legislation include Statutory Instruments (SIs), Orders in Council, and Bylaws, which are typically used to implement details not specified in primary legislation. Parliamentary oversight is exercised through procedures such as the affirmative and negative resolution mechanisms, where instruments are either explicitly approved or automatically enacted unless annulled. Judicial control exists but is comparatively limited, focusing on whether the authority acted ultra vires, i.e., beyond the scope of the powers granted. A significant judicial pronouncement in this context is R v Home Secretary, ex parte Fire Brigades Union [1995] 2 AC 513, where the court invalidated a ministerial act that contradicted parliamentary intent. Additionally, the House of Lords’ Delegated Powers and Regulatory Reform Committee examines bills for inappropriate delegation, ensuring that Parliament does not abdicate its core legislative responsibilities.

United States: In the United States, delegated legislation—often termed administrative rulemaking—operates under a strict framework shaped by the doctrine of separation of powers. The U.S. Constitution vests legislative power solely in Congress, and thus any delegation of such authority must adhere to the principle of providing an “intelligible principle”, as enunciated in J.W. Hampton Jr. & Co. v United States, 276 U.S. 394 (1928). Delegated legislation is governed by the Administrative Procedure Act (APA) of 1946, which outlines the procedures agencies must follow, including notice-and-comment rulemaking. Rules issued may be legislative, interpretive, or procedural in nature. The Chevron deference doctrine, developed in Chevron U.S.A., Inc. v NRDC, 467 U.S. 837 (1984), further establishes that courts should defer to an agency’s reasonable interpretation of a statute it administers. Control mechanisms are robust: Congress retains the power to amend or repeal enabling legislation, the judiciary ensures compliance with constitutional mandates and administrative procedures, and the executive—particularly the President—exercises influence through appointments and oversight via the Office of Management and Budget (OMB). This multi-tiered oversight ensures that administrative agencies remain accountable and act within the legal boundaries set by the legislature.

India: In India, delegated legislation is constitutionally recognized and widely used to address the practical difficulties in implementing legislative schemes across a vast and diverse nation. While the Indian legal system draws from the British parliamentary model, it incorporates strict constitutional limitations under the basic structure doctrine and judicial interpretation. Delegated legislation is permissible as long as essential legislative functions, such as policy formulation and determination of legislative principles, are not delegated. This principle was affirmed in the landmark case In Re: Delhi Laws Act, AIR 1951 SC 332, which held that while Parliament may delegate the task of filling in the details, it must retain core legislative responsibilities. Indian delegated legislation takes the form of rules, regulations, notifications, and orders, framed under the authority of enabling statutes. Legislative control is exercised through the Laying Procedure and scrutiny by the Committee on Subordinate Legislation, which ensures conformity with the parent Act. The judiciary actively enforces limits through the doctrine of ultra vires, as seen in Ajoy Kumar Banerjee v Union of India, AIR 1984 SC 1130, where rules inconsistent with the enabling Act were invalidated. Thus, India maintains a balanced system wherein delegated legislation is encouraged for administrative efficacy but restrained by judicial oversight and legislative review to prevent excessive delegation.

Contemporary Developments and the Need for Reform

In contemporary India, delegated legislation has become a central feature of governance, particularly in domains such as healthcare, environmental regulation, finance, and public safety. This trend reflects the administrative need for speed, expertise, and adaptability. However, it has also raised concerns regarding legislative bypass, democratic accountability, and transparency.

A notable instance of this overreach was witnessed during the COVID-19 pandemic, where executive authorities issued a multitude of rules, guidelines, and notifications regulating movement, healthcare norms, and commercial activity—often without direct legislative backing. While these measures were driven by urgency, they also highlighted the absence of a structured framework for overseeing and regulating delegated law-making. This evolving context underscores the need for systemic reform to ensure that delegated legislation remains within constitutional bounds and respects rule of law principles.

Recommendations for Reform

1. Codification of Administrative Rule-Making (Indian APA Model): India lacks a comprehensive statute governing the process of making delegated legislation. Introducing a law similar to the Administrative Procedure Act (APA) of the United States would help institutionalize transparency, procedural fairness, and accountability. Such a law would mandate prior notice of rule-making, public participation, and judicial review standards, thereby reinforcing democratic legitimacy.
2. Mandatory Public Consultation for Major Rules: Public consultation must be made compulsory for all significant delegated legislation, especially in sectors affecting public rights or involving policy shifts. Inviting stakeholder feedback before finalizing regulations ensures inclusivity, improves quality, and reduces arbitrariness. The Ministry of Law and Justice and NITI Aayog have, in the past, proposed consultation norms, but they remain non-binding.
3. Clear Statutory Limits on Delegation: Enabling Acts should precisely define the scope, purpose, and limits of delegation. Vague or open-ended provisions allow the executive undue flexibility, which risks misuse. Statutes must articulate objectives, guiding principles, and matters reserved exclusively for the legislature, thus preventing excessive delegation and safeguarding legislative supremacy.
4. Strengthening the Role of Parliamentary Committees: Parliamentary oversight over delegated legislation is currently limited and largely advisory. The role of Committees on Subordinate Legislation should be enhanced, with the power to make their recommendations binding. This would ensure robust scrutiny, deter overreach, and maintain constitutional balance between the executive and legislature.
5. Introduction of Sunset Clauses: Delegated legislation should be time-bound unless expressly renewed. Introducing sunset clauses—provisions that automatically expire after a set period—would compel periodic review, ensuring continued relevance and eliminating outdated or redundant regulations. This practice enhances accountability and prevents executive rules from becoming permanent without due legislative process.

Conclusion

Delegated legislation has undeniably become a crucial component of modern legislative practice, enabling the efficient administration of laws, particularly in a complex and fast-evolving society like India. Its flexibility, responsiveness, and the use of expertise in rule-making allow the government to address specific, technical issues that cannot always be foreseen in primary legislation. However, as this power rests largely with the executive, it poses risks of executive excesses and undermining democratic values if left unchecked.

It is imperative that the core legislative functions—which form the bedrock of democratic governance—are not outsourced entirely to the executive. The role of Parliament and the judiciary in maintaining the balance of power is indispensable. Judicial and parliamentary controls, such as judicial review and legislative oversight, must function robustly to ensure that delegated laws align with the parent Act and constitutional principles. These safeguards are essential to preserve the democratic process, protect individual rights, and ensure that the executive does not wield power arbitrarily.

Moreover, the institutionalization of transparency, procedural safeguards, and public participation in the creation and implementation of delegated legislation will ensure that such laws serve the public interest and complement rather than compromise the rule of law. In conclusion, while delegated legislation is a practical necessity for governance, its use must be properly regulated, and mechanisms for oversight and accountability must be strengthened to maintain the integrity of democratic governance in India.

REFERENCES

• Administrative Procedure Act 1946 (US), s 553.
• Agricultural Market Committee v Shalimar Chemical Works Ltd (1997) 5 SCC 516.
• A K Roy v Union of India AIR 1982 SC 710.
• Anuradha Bhasin v Union of India (2020) 3 SCC 637.
• Re Delhi Laws Act AIR 1951 SC 332.
• Jowell J and Oliver D, The Changing Constitution (9th edn, Oxford University Press 2019).
• Justice Gajendragadkar Committee Report (1971) ch 4.
• Law Commission of India, 60th Report on Delegated Legislation (1974).
• Law Commission of India, 183rd Report on Delegated Legislation: A Conceptual Overview (2002).
• Jain MP, Indian Constitutional Law (8th edn, LexisNexis 2018).
• Seervai HM, Constitutional Law of India (4th edn, Universal Law Publishing 2021).
• Salmond J, Jurisprudence (12th edn, Sweet & Maxwell 2010).