Interpretation of Statutes

TOPIC:- Delegatus non potest delegare

SUBMITTED BY:-Heena Yasmin Shaikh

BBA LLB SEM –6

ROLL NO -18

GUIDED BY:- Mr. Ujal Kumar Mookherjee (Asst. PROF OF LAW )

Indian Institute of Legal Studies

Dagapur, Matigara, Siliguri, Darjeeling, West Bengal 734001

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 ACKNOWLEDGEMENT
With profound gratitude and sense of indebtedness I place on record my sincerest thanks to
Mr. Ujal Kumar Mookherjee, Asst. Prof in Law, Indian Institute of Legal Studies, for his
invaluable guidance, sound advice and affectionate attitude during the course of my studies.

I have no hesitation in saying that he molded raw clay into whatever I am through his incessant
efforts and keen interest shown throughout my academic pursuit. It is due to his patient guidance
that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of information
therein. I also express my regards to the Library staff for cooperating and making available the
books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the
project work.

_____________ Heena yasmin shaikh

Teacher’s Signature Student’s Signature

Date: /0 /2020 Date: /0 /2020

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 TABLE OF CONTENTS

RESEARCH METHODOLOGY………………………………………………………….. …….4

CHAPTER- 1 INTRODUCTION………………………………………………………… …….5

CHAPTER- 2 ……………………………………………….6

CHAPTER- 3 …………………………………………………..7

CHAPTER-4 …………………………………….11

CONCLUSION

BIBLIOGRAPHY

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 Introduction

STATEMENT OF PROBLEM

The statement of problem in this project is to understand delegated legislation

AIMS AND OBJECTIVES

The aims and objectives of this project are to judge and understand the concept of delegatus non
potest delegare.

RESEARCH HYPOTHESIS

Research is commonly referring to a search of knowledge. It is done with the help of study,
observation, comparison and experiment. Thus, the search for knowledge through objective and
systematic method of finding solution to a problem is research. This research work is an attempt
to find out the depth of delegatus non potest delegare in India.

RESEARCH QUESTIONS:

1. What id delegated legislation?

2. Explain the maxim delegatus non potest delegare.

E. METHODOLOGY OF RESEARCH:

“Methodology” does not merely mean the methods used by the researcher to complete his
research work but it also means and implies the concepts and theories which underlie the
methods. The methodology used for the completion of this project is Doctrinal. Doctrinal
research in law field indicates arranging, ordering and analysis of the structure, framework and
laws by extensive surveying of literature but without any field work.

F. SOURCE OF DATA:

Secondary source of data has been used in the completion of this project.

F. MODE OF CITATION

Universal mode of citation is used.

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Chapter: 2

Delegated Legislation

‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a person with
the power or empowering him to act on behalf of that person who has given him that power or to
act as his agent or representative. ‘Delegated legislation’ means exercising of legislative power
by an agent who is lower in rank to the Legislature, or who is subordinate to the Legislature.
Delegated legislation, additionally alluded to as an auxiliary legislation, is an enactment made by
an individual or body other than Parliament. Parliament, through an Act of Parliament, can allow
someone else or some body to make enactment. An Act of Parliament makes the system of a
specific or particular law and tends to contain an outline of the purpose for the Act. By
delegating the legislation by Parliament to the Executive or any subordinate, it empowers
different people or bodies to integrate more details to an Act of Parliament. Parliament along
these lines, through essential enactment (for example an Act of Parliament), licenses others to
make laws and guidelines through delegated legislation. The enactment made by authorize
person must be made as per the reason set down in the Act of Parliament.

Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and

Quasi-Legislation.

Delegated legislation under the Constitution of India

Although the concept of delegated legislation was not mentioned specifically in the Indian
Constitution it can be understood by interpreting Article 312 of the given Constitution. This
Article gives right to the Rajya Sabha to open a new branch of All India Service with a majority
of two-thirds majority vote. This means that some powers of legislation will be delegated to the
new recruiter of All India Service. There are many cases through which delegated legislation
under the constitution of India can be understood. These are:

Panama Refining Co. v. Rayan[4]

Facts: Section 9(c) of the National Industrial Recovery Act, 1933 authorizes the President of the
United States with some powers under which he can make any order and violation of that order
may lead to panel provision. The President issued the prohibition made by the above act through
the executive and authorized the Security of Interior to exercise all the powers vested in the
President under section 9(c) of the Act. The Security of Interior issued a regulation to accomplish
the President’s order(s). The Section mentioned above was challenged on the ground that it was
an unconstitutional delegation of legislative power by the Congress.

Judgment: It was held by the Supreme Court of the United States that delegation of legislative
power given by President is void. The court held that Congress can delegate power to the
Executive only on  two conditions. Firstly, the Statute laid down these policies. Secondly, one

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has to establish the standards and give the administration the power of making the subordinate
rule within the given limit.

Sikkim v. Surendra Sharma[5]

Facts: After Sikkim became the State of the Union Of India, the Directorate of Survey and
Settlement of Government of Sikkim created and advertised for certain temporary posts. Like
other people, the respondent has also applied for the post. They got selected and were appointed
in different capacities. After the survey work got completed some of the employees got
terminated from the job. In 1982, some of the employees, who were ‘not locals’, filed a writ
petition in the High Court of Sikkim challenging the decision of the Government asking why it
has fired the employees from the service on the ground that they were not locals.

Judgment: The judge held that the termination of the employees solely on the ground that he is
not local is impermissible under Article 14 and 16 of the Indian Constitution. It was held that all
rules and legislations created under the power which is granted under sub-clause (k) of the
Article 371F constituted subordinate legislation. This article was added to the Constitution
through the 36th Constitutional Amendment.

Types of Delegated Legislation

Delegated legislation means giving power or authority to someone lower than his rank to make
laws. So there can be many ways in which this excess of power can be given to subsidiary rank
people or an Executive. These types are as follows:

Orders in Councils: This type of Delegated legislation can be given by Queens or the Privy
Councils. This Delegated legislation allows the Parliament to make laws without going through
the Parliamentary proceedings. Today, its main use is that it gives legal effect to European
directives. When the order issued under the privilege of the Queen or the Crown such order is
subject to review by the courts. But order issued by the Parliament may or may not be subject to
review by the courts as it is made within the prescribed limits Act of Parliament. In both the case
the question can arises that if this legislation is the same as the Executive legislative. The answer
to this question is yes, it is equivalent to executive legislative. There is no major difference
between these orders and Executive legislative almost they both are same. The meeting of Privy
council in such case could simply means a meeting of some Privy Councillors which includes
three or four ministers, President, Councils and Clerk of Privy Councils. This shows that this
order is issued by the Executive who exercises powers of the Council. 

Rules of the Supreme Court and the County Courts: The Parliament by statutes bestow some
persons or authority with the power to make laws for a specific purpose. But it is different in
England where a Court has been given wide power to make laws. This task of making law has
been entrusted upon the Rules Committee of the Supreme Court and the County Courts.
Entrusting Judicial branch to control its Procedural law to a great extent has an advantage as it is

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given to that authority who knows better about it than any person. Procedure and cost that are
drawn by Rules Committee of County Courts deals by the County Courts itself. Such rules are
not subject to the control of Parliament. When these rules used to come into force? It comes into
force when the Lord Chancellors with the consent of the Rules Committee of the Supreme Court
confirms it.

Departmental or Executive instructions or regulations: When the power of legislature directly

delegated to the administration such as a Board, Ministers or a Committee, then the exercise of
that given power results in delegation through Departmental or Executional Instructions or
Regulations. Sometimes very wide powers are given to the administration or the delegated
person. But this wide delegation of legislation is not accepted by the judiciary as it is difficult for
them to control administrative action. There is extensive use of this delegated legislation in
today’s world. Nowadays only the broad line of making legislation is in the hands of Parliament
and the rest power is given to the Administrator. 

Delegated legislation by laws: It can be given in two ways, firstly, it can be given by laws of
autonomous bodies, e.g., Corporation and secondly, it can be given by-laws of a local authority.

By-laws of autonomous bodies: These autonomous bodies have got the power to pass by-laws
on matters affecting them and other people in that locality or people residing in a particular area.
For example, they can make laws as public utility authorities for light, water, etc. Usually, these
authorities are given the power to make rules for regulating their working. Such by-laws are
subject to judicial review. It can be reviewed to check that it must not be ultra vires the Parent
Statute. These autonomous bodies have the power to frame rules for themselves. One more
example of this autonomous body is an association of Employers. The rules of these association
are termed as voluntary but this is not so in reality. It is fictitious as in its effect these rules are
binding upon members like other rules such as rules of a professional association, industrial
organisation, etc.

By-laws of the local authority:  Parliament has the power to make new local bodies or it can
alter the existing body. It empowers such body with powers to make by-laws for themselves for
specific purposes. These authority exercises excess power for public health, safety, and for good
rule and governance. These by-laws incur a penalty on its breach.

Advantages of delegated legislation

There are many advantages of delegated legislation as it is essential for a democratic country to
flourish or make laws according to its public. These advantages are as follows:

Reduce the workload of Parliament: The Parliament has to pass several legislation within a short
span of its life. It has to take such type of intensive work that it can hardly enact the law
provisions in detail. If the Parliament devotes its time in laying down minor and subsidiary detail
of each and every legislation by making all the rules required for that legislation then it will take

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too much time and in that time it can only deal with a small amount of Act in detail. It is lengthy,
time consuming process and also it is expensive to operate Parliament process. It cannot cope up
with the growing needs of legislation. So there arises the need to overcome that load and it can
be possible only through delegating ones legislative authority to the subsidiary ones or the
executives. Delegated authorities which an expert resides are more appropriate to make laws and
to meet the needs of the community. It saves ample amount of time of the Parliament because it
gives the members a chance to create or to make rapid changes in small items.

Technical Expertise: Today’s world has become very technical and complicated by the
introduction of modern means and advancement in technology. So it is necessary for the
members of parliament to know each and every field but one cannot be the master of all fields.
Therefore, it is difficult for the members of Parliament to have all knowledge needed for making
laws in various fields like on controlling technology, ensuring environmental safety, dealing with
various industrial problems which need basic knowledge. Also, Parliament is not a forum which
can make laws on administrative and technical details but it is more concerned with social issues
and the rule of law. Therefore, it is thought that it is better for the parliament to debate on the
broad topic or the main topic and leave the rest detail for the fulfilment by the expert of that
particular field. Thus, delegates authorities with extra skills, experience, and knowledge are more
suitable for making law.

Decentralized decision making: The local councils are more suited to make laws for their
constituencies as they better know the condition of their constituencies than any other. These
local bodies can make better laws for their area that a Parliament cannot do so because they
knew their locals need, whats they want? And it is very essential to know a person for whom we
are making laws. The Parliament makes the laws for broad principle while its delegate handles
the local principle. This separation of power helps in the smooth running of the legislature.

Emergencies: Delegated Legislation allows for rapid action in case of an emergency  but

Parliament take too much time in taking any decision. It has to call for a session then the
Parliamentarian discusses the emergency topic. And after that, if they all conclude then only that
act would have passed. In some cases, the Parliament have not enough time to accurately make a
piece of legislation and a quick and safety legislation is required for the safety of a nation. For
example, in the UK, the Prevention of Terrorism Act was created as delegated legislation and
now this act has added a new prohibited group to the terrorism. Therefore, it is more appropriate
for the delegate authorities to make legislation and deal with it.

Enables flexibility: In delegated legislation, Parliament makes law in broader skeletal form and
the executive had to fill the minor details. So these minor details can be changed immediately
without making any amendment in the Parliament. Therefore, it is flexible and the legislation
made by this can be best for the needs of modern public.

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Chapter :3

Delegatus non potest delegare