fulfillsTitle: The Judicial Control of Delegated Legislation in India: A Comprehensive

Analysis

Introduction:

The concept of delegated legislation is also synonymously regarded as subordinate/secondary

legislation. It is the laws passed by people or organizations acting under the authority granted
by a parliamentary act. The legislative process in India also includes the transfer of certain
legislative powers to other authorities, including the executive. The legislative process is not
entirely based on direct enactment. The use of delegated legislation envisaged the necessity
of strong judicial review as well as the possibility of power abuse. The goal of this Article is
to present a thorough analysis of India's judicial review process for delegated legislation by
looking at the country's constitutional framework, review principles, and significant court
rulings.

Constitutional Framework:

Adopted in 1950, the Indian Constitution delineates the framework of governance and
elucidates the authorities and roles of diverse establishments. An essential component of this
framework is the division of powers between the legislative, executive, and judicial
departments as expressed by the Indian Constitution. The central and state legislatures are
only granted legislative powers under Article 245 of the Constitution. However, these powers
may also be delegated under specific circumstances. Article 248 of the Constitution vests the
remaining powers in the Central Government and makes it the highest legislative body.
However, Articles 73 and 162 empower federal and state enforcement agencies to issue
orders and legislate on matters not included in the Concurrent List or the State List,
respectively. This allows for a wide range of delegated legislation, subject to constitutional
limits and principles.

Principles Governing Judicial Control:

The Indian judiciary plays an important role in ensuring that delegated legislation complies
with constitutional principles and does not violate the separation of powers. Some principles
that guide judicial review of delegated legislation:
 1. Ultra Vires Doctrine: This envisages that any subordinate act/law must be in full
compliance with the parent act/law. If any such said subordinate laws exceed the
scope of the parent act itself, Courts of law term them as invalid and void ab initio.
One apt example for the same would be, if any subordinate law/act is considered
unconstitutional; it can we deemed invalid by courts of law citing the doctrine of Ultra
Vires.

2. Reasonableness and Fairness: Legislation that is delegated must be equitable and

proportionate. Courts have consistently ruled that laws and policies cannot be
discriminatory or arbitrary. The principle of proportionality guarantees that the
utilization of authorized powers is not capricious and fulfills a justifiable objective.

3. Procedural Validity: The procedures followed are subject to judicial review when
delegated acts are issued. The delegated Act may be invalidated if it fails to comply
with procedural requirements such as consultation or public participation.

4. Intelligible Guideline: Failure to comply with procedural requirements such as

consultation or public participation may invalidate delegated acts may invalidate the
delegated Acts. Thus, the Acts are subjected to Judicial Review.

5. Non-Delegable Functions: Certain tasks shall be performed by the legislators

themselves and they cannot be delegated as such. Policy matters and fundamental
principles are generally not considered to be delegated, and courts may reject any
attempt to delegate such tasks.1

Important judgments:

Over the years, several landmark judgments have shaped the jurisprudence on judicial review
of delegated legislation in India. These decisions reflect court judgments and#039; duty to
uphold constitutional principles and maintain a delicate balance between legislative power
and the need for effective administration.

1. In Re: Delhi Laws Act, 1912: In this early case, the Privy Council emphasized that
Parliament itself must perform important legislative functions. A delegated act could

1
https://gyansanchay.csjmu.ac.in/wp-content/uploads/2023/03/JUDICIAL-CONTROL-OVER-DELEGATED-
LEGISLATION.pdf
 only be valid if it complied with the principles of fundamental law and did not exceed
the powers granted.2
2. Hamdard Dawakhana Vs. Union of India (1960): In this case, the Supreme Court
emphasized that a fundamental right must be to have policies and guidelines for the
delegation of powers. He said that if law did not speak of politics, delegation would
be excessive and secondary legislation ultra vires. 3
3. Kishan Prakash Sharma Vs. Union of India (2001): This case reiterated the
importance of procedural justice in the drafting of delegated legislation. The Supreme
Court held that failure to consult stakeholders and interest groups before making rules
renders the rules invalid. 4
4. Raja Narain Singh Vs. Chairman, Patna Administrative Committee (1955): The
court emphasized in that case that the parliament itself must perform important
legislative functions such as defining the policy of the law and setting standards. The
mandate could only extend to political implementation.5
5. Deena Dayal Vs. Union of India (1983): This case emphasized the principle of non-
delegated functions and said that the parliament should perform important legislative
functions and delegation should not involve important political matters.6

Challenges and criticisms:

Although judicial review of delegated acts is necessary to maintain the rule of law and
prevent abuse of power, certain challenges and criticisms have been raised:

1. Legal activism vs. limits The scope of judicial review often involves a delicate balance
between activism and moderation. Some argue that excessive legal intervention can
undermine the effective functioning of the executive, while others emphasize that the
judiciary must curb possible abuses of power.

2. Delays in judgments: Legal challenges to delegated acts can cause delays in implementing
laws. The time spent on legal review can prevent urgent matters from being resolved quickly,
which affects the effectiveness of management.

2
https://www.manupatra.com/roundup/333/Articles/In%20re%20Delhi%20Laws%20Act%20Case.pdf
3
1960 AIR 554
4
Writ Petition (civil) 3815-19 of 1978
5
AIR 1953 Pat 117
6
1983 AIR 1155
3. Complexity of delegated actions. Delegated legislation is often complex and technical and
requires specialist knowledge. This complexity challenges judges to fully understand the
implications and make informed decisions.

Global Perspective:

1. U.K. – Similar to that of India; In the UK, judicial review of delegated legislation is a
key mechanism to protect the executive against potential abuses of legislative power.
Through the doctrine of ultra vires, courts have the power to review and invalidate
delegated legislation that exceeds the powers granted by the enabling act. This
principle ensures that secondary legislation meets the scope and purpose set by
Parliament. Furthermore, the courts have the authority to scrutinize the procedural
facets of the legislative process, guaranteeing impartiality, consistency, and
conformity to established legal standards. The legal framework of the United
Kingdom places significant emphasis on the role of judicial review in upholding the
rule of law and averting the misuse of delegated legislative powerthe .7
2. USA - Judicial review of delegated legislation, also known as administrative
regulations or rules, is an essential component of the constitutional framework in the
United States. Federal courts have the authority to interpret the Constitution and
consider whether government actions, including executive orders, are constitutional
under the Madisonian judicial review principle, as demonstrated in the Marbury v.
The courts are crucial in ensuring that executive agencies act within the bounds of the
authority that Congress has granted them when it comes to delegated legislation.
According to the doctrine of non-delegation, judges have the authority to overturn
regulations that go beyond the authority rule's bounds and Congress is unable to
assign its legislative authority to other agencies. Additionally, courts consider whether
regulations align with the goals of legislation and whether the agency's rulemaking
process adhered to the correct protocols. Furthermore, the 1946 Administrative
Procedure Act (APA) provides a framework for judicial review of agency actions and
sets procedural requirements for rulemaking. It gives powers to the courts to set aside
agency orders that are arbitrary, capricious, an abuse of discretion, or otherwise
unlawful. Although the United States relies on the judiciary to control delegated

7
Wharam, Alan. “Judicial Control of Delegated Legislation: The Test of Reasonableness.” The Modern Law
Review, vol. 36, no. 6, 1973, pp. 611–23. JSTOR, http://www.jstor.org/stable/1094500. Accessed 15 Dec. 2023.
 legislation, this process is characterized by a strong emphasis on the separation of
powers and the checks and balances inherent in the American constitutional system.8
3. Germany -In Germany, the constitutional framework includes judicial review of
delegated acts as a fundamental component. Any transfer of legislative authority to
administrative bodies is subject to judicial review because of the Grundgesetz
(Constitution), the legal certainty principle, and the idea of parliamentary reservation.
By determining whether delegated acts are constitutional, the Federal Constitutional
Court contributes significantly to the upholding of the rule of law. The court confirms
that these rules comply with the letter and spirit of the law and do not go beyond its
authority. Such legal supervision encourages accountability, guards against potential
misuse of assigned authority, and maintains the integrity of the German legal system. 9

Proposed Improvements:

Improving delegated legislation in India requires a holistic approach that addresses issues of
transparency, accountability and procedural aspects of the legislative process. Here are
several suggestions to improve India's delegated legislation.

1. Clear and precise delegation: Ensure that the act of authorization clearly articulates
the scope of the delegated authority and provides specific guidelines and limitations
on the powers granted to the executive. This helps prevent overuse and ensures that
delegated acts are consistent with the original legislative intent.
2. Consultation with stakeholders: Allow a process for meaningful consultation with
stakeholders, including affected individuals, industries and civil society organizations,
during the drafting of delegated legislation. It improves the quality of regulation by
bringing together different perspectives and ensures that regulation is informed and
balanced.
3. Parliamentary control: The role of parliamentary committees in monitoring and
reviewing delegated acts must be strengthened. This includes regular reporting by the
executive to the relevant parliamentary committees, enabling a more thorough review
of regulations and their impact.
8
Carr, Cecil T. “Delegated Legislation in the United States.” Journal of Comparative Legislation and International
Law, vol. 25, no. 3/4, 1943, pp. 47–54. JSTOR, http://www.jstor.org/stable/754755. Accessed 15 Dec. 2023.
9
Pünder, Hermann. “Democratic Legitimation of Delegated Legislation: A Comparative View on the American,
British and German Law.” The International and Comparative Law Quarterly, vol. 58, no. 2, 2009, pp. 353–78.
JSTOR, http://www.jstor.org/stable/20488294. Accessed 15 Dec. 2023.
4. Audience Participation: By giving people a chance to comment on proposed
regulations, you can promote public involvement in the legislative process. Public
discussions, online forums, and other tools that support a more inclusive and
transparent decision-making process can help with this.
5. Impact assessment: Establish a robust system to carry out impact assessments before
introducing significant delegated legislation. This includes assessing economic, social
and environmental impacts to ensure that regulations achieve their stated objectives
without causing unintended harm.
6. Sunset Expressions: Insert sunset clauses in delegated legislation that require regular
review and reauthorization of regulations. This helps to avoid unwarranted outdated
regulations and encourages regular reviews of the necessity and effectiveness of
existing regulations.
7. Training for designers: Provide training programs for government officials involved in
the preparation of delegated legislation. This ensures that those responsible for
drafting legislation have a thorough understanding of legal principles, policy
objectives and the potential consequences of their decisions.
8. Digital work environments: Create user-friendly digital platforms to facilitate
delegated legislation. This includes creating centralized databases containing up-to-
date information on all regulations, making it easier for the public, businesses and
lawyers to understand and comply with the law.
9. Statutory Review Mechanism: Maintain a robust and speedy judicial review
mechanism to challenge delegated legislation. This ensures that individuals and
entities affected by regulations can rely on the legality and constitutionality of such
regulations.
10. Regular training and skill development: Invest in ongoing training and capacity
building for judges to better understand the complex legal issues surrounding
delegated legislation and ensure effective and informed judicial oversight.
11. International Best Practices: Study and incorporate international best practices in the
field of delegated legislation, drawing on the experiences of other jurisdictions to
inform reforms and improvements in India. Implementing these recommendations can
contribute to a more transparent, accountable, and effective system of delegated
legislation in India, promoting good governance and upholding the rule of law.
Conclusion:

In India, judicial review of delegated legislation is a crucial component of the constitutional

framework that makes sure the executive branch's powers are used within the legislatively
established parameters. When evaluating the legitimacy of secondary legislation, courts are
guided by the principles of reasonableness, ultra vires, procedural validity, comprehensible
instructions, and non-delegable functions. Strong jurisprudence that strikes a balance between
the preservation of constitutional values and the necessity for effective administration has
been developed as a result of significant decisions. India must find the ideal balance between
administrative autonomy and judicial review to advance a legal system that upholds
accountability, good governance, and the rule of law as the country develops. An ongoing
conversation between the judiciary, To make sure that delegated lawmaking complies with
the constitutional goal of a just and equitable society, the parliament and the executive branch
must define the guiding principles of this process.

However, India's delegated legislation needs a holistic approach to improve transparency,

accountability, and procedural aspects. Key suggestions include clear and precise delegation,
consultation with stakeholders, strengthening parliamentary control, promoting public
participation, impact assessment, sunset clauses, training for designers, creating digital work
environments, maintaining a robust judicial review mechanism, investing in ongoing training
and skill development for judges, and incorporating international best practices. Clear
delegation ensures the scope of authority is clearly defined, consultation with stakeholders
improves regulation quality, and parliamentary control strengthens the role of parliamentary
committees. Public participation through public debates and online platforms promotes a
more inclusive decision-making process. Implementing sunset clauses and training for
designers ensures a thorough understanding of legal principles and policy objectives. A robust
judicial review mechanism and ongoing training for judges are also essential. Further, from
the aforementioned case studies, it can be inferred that there exists some uniformity between
the execution of judicial control over delegated legislation across the globe, the common
principles used by a multitude of nations are; doctrine of Ultra Vires and the doctrine of
Fairness and Reasonability.

References:
 1. “ADMINISTRATIVE LAW.” GyanSanchay,
gyansanchay.csjmu.ac.in/wp-content/uploads/2023/03/JUDICIAL-CONTROL-
OVER-DELEGATED-LEGISLATION.pdf. Accessed 8 Dec. 2023.
2. Agarwal, Chhavi. “IN RE: DELHI LAWS ACT CASE: LANDMARK CONCEPT OF
DELEGATED LEGISLATION IN INDIA.” Manupatra,
www.manupatra.com/roundup/333/Articles/In%20re%20Delhi%20Laws%20Act
%20Case.pdf. Accessed 12 Dec. 2023.
3. Wharam, Alan. “Judicial Control of Delegated Legislation: The Test of
Reasonableness.” The Modern Law Review, vol. 36, no. 6, 1973, pp. 611–23. JSTOR,
http://www.jstor.org/stable/1094500. Accessed 15 Dec. 2023.
4. Carr, Cecil T. “Delegated Legislation in the United States.” Journal of Comparative
Legislation and International Law, vol. 25, no. 3/4, 1943, pp. 47–54. JSTOR,
http://www.jstor.org/stable/754755. Accessed 15 Dec. 2023.
5. Pünder, Hermann. “Democratic Legitimation of Delegated Legislation: A
Comparative View on the American, British and German Law.” The International and
Comparative Law Quarterly, vol. 58, no. 2, 2009, pp. 353–78. JSTOR,
http://www.jstor.org/stable/20488294. Accessed 15 Dec. 2023.

Written by Khushi Gupta from University Law College, Bangalore University.