Delegated legislation: meaning, growth, merits and administrative directions

1. Meaning

Delegated legislation, also called subordinate legislation, is law made by an authority other than the legislature under power conferred by the legislature. Salmond describes it as legislation that proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior authority. Two senses are used:

• the exercise of legislative power by a subordinate authority; and
• the rules themselves, made in exercise of that power.

The essential feature is that it is subordinate: it must conform to the parent Act and to the Constitution, and it can be struck down if it goes beyond either. A statute is not void for unreasonableness, but delegated legislation can be (see the note on Control of delegated legislation).

2. Forms

• Rules, usually made by the Government under a section of the Act (“the Central Government may, by notification, make rules to carry out the purposes of this Act”).
• Regulations, often made by statutory bodies such as the Reserve Bank, SEBI or a university.
• Bye-laws, made by local and autonomous bodies such as municipalities.
• Orders, notifications and schemes, including those bringing an Act into force or extending it to an area (conditional legislation, discussed in the next note).
• Sub-delegated legislation, made by an authority to which the delegate has itself passed on the power.

3. Causes of growth

The January 2026 paper asked for these. Each needs one line of explanation.

• Pressure on parliamentary time. Parliament could not pass the volume of law a modern State needs if it had to enact every detail.
• Technicality. Matters such as drug standards, emission limits or telecommunications need experts; legislators are generalists.
• Flexibility. Rules can be amended quickly as conditions change; a statute needs a Bill passed by both Houses.
• Experiment. A scheme can be tried in one area and modified in the light of experience before it is extended.
• Emergency. War, epidemic or economic crisis requires immediate action. The Epidemic Diseases Act, 1897, for example, empowers the Government to take and prescribe special measures.
• Unforeseen contingencies. The legislature cannot foresee every situation; the executive is given power to deal with them as they arise.
• The welfare State, which has multiplied the activities to be regulated.

In England the Committee on Ministers' Powers (the Donoughmore Committee, 1932) concluded that delegated legislation was inevitable and useful, but needed safeguards. Indian writers adopt the same conclusion.

4. Advantages

• saves the time of the legislature for questions of principle;
• brings expert knowledge to technical matters;
• allows quick action and quick amendment;
• allows consultation with affected interests before rules are made;
• permits local variation, through bye-laws suited to local conditions.

5. Disadvantages and dangers

• Erosion of parliamentary control. Law is made by officials who are not directly accountable to the electorate.
• Excessive delegation. The legislature may hand over its essential function of laying down policy.
• Inadequate publicity. Rules may be made without consultation and published only in the Gazette, which ordinary people do not read.
• Weak scrutiny. Laying before the House is often a formality and committees have limited time.
• Abuse. Clauses that exclude judicial review, or allow the executive to modify the parent Act (Henry VIII clauses), increase the risk of arbitrary rules.

Lord Hewart's The New Despotism (1929) is the classic polemic against delegated legislation; it is worth naming in a sentence.

6. Administrative directions

Administrative directions (also called instructions, circulars, office memoranda or codes) are issued by the executive in exercise of its general executive power under Articles 73 and 162, or by a superior authority to its subordinates, without any specific statutory power to legislate. They differ from delegated legislation in three ways:

• they are not made under a statute and need no publication in the Gazette;
• they generally bind only the officers to whom they are addressed;
• they do not ordinarily create rights enforceable by a private person.

In G.J. Fernandez v. State of Mysore, 1967 INSC 108, AIR 1967 SC 1753, a contractor complained that the Mysore Public Works Department Code had not been followed in accepting a tender. The Court held that the Code was a set of administrative instructions, not statutory rules, and that their breach gave the contractor no enforceable right. In Sant Ram Sharma v. State of Rajasthan, 1967 INSC 167, AIR 1967 SC 1910, the Court held that the Government cannot amend or supersede statutory rules by administrative instructions, but where the rules are silent on a point it may fill the gap by instructions consistent with them. Promotions made on instructions where the rules said nothing were upheld.

Directions can still have legal effect. If the Government holds out a policy in a circular and a person acts on it, the doctrines of promissory estoppel and legitimate expectation may apply (see the note on those doctrines), and arbitrary departure from a published policy may offend Article 14.

How this is examined

As essays: “Examine the causes for the growth of delegated legislation” (January 2026), or “advantages and disadvantages of delegated legislation”. Write the definition, the forms, the causes or merits as a list, the dangers, and finish by saying that the dangers are met by the controls discussed in the next two notes. Administrative directions appear as a 6-mark note; give the three differences from rules and the two cases.