Excessive delegation, conditional legislation and sub-delegation

1. The constitutional basis

The Constitution does not expressly permit or forbid delegation. Unlike the United States, India has no theory that the legislature holds power as an agent of the people and so cannot delegate; unlike England, Parliament is not sovereign and cannot do as it likes. The Supreme Court has taken a middle path: delegation is permitted as an incident of legislative power, but the essential legislative function, the determination of policy and its formulation as a binding rule of conduct, cannot be delegated.

2. In re Delhi Laws Act (1951)

In In re Delhi Laws Act, 1912, 1951 INSC 36, AIR 1951 SC 332, a seven-judge Bench answered a Presidential reference on three statutes that allowed the Government to extend to Delhi, Ajmer-Merwara and Part C States any law in force in any Province, with such restrictions and modifications as it thought fit, and (in one of them) to repeal or amend any existing law in force in the area. The judges gave seven separate opinions, but the majority view was:

• the power to extend laws with restrictions and modifications that do not alter their essential policy is valid;
• the power to repeal or amend laws already in force in the area is invalid, because it hands over the essential legislative function;
• the legislature cannot efface itself or create a parallel legislature.

In Rajnarain Singh v. Chairman, Patna Administration Committee, 1954 INSC 69, AIR 1954 SC 569, the same principle struck down a notification that extended a taxing section of the Bihar and Orissa Municipal Act to a new area while stripping out the safeguards that went with it. A “modification” that changes the policy of the Act is beyond the power.

3. Policy and guidelines: the cases

• Harishankar Bagla v. State of Madhya Pradesh, 1954 INSC 65, AIR 1954 SC 465. Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 empowered the Government to regulate supply and distribution of essential commodities. Held valid: the policy (maintaining supplies and equitable distribution) was stated in the Act. Section 6, which gave orders effect despite inconsistent laws, was also upheld; it did not repeal those laws but only bypassed them.
• Hamdard Dawakhana v. Union of India, 1959 INSC 168, AIR 1960 SC 554. Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 let the Central Government add any disease to the list for which advertising was banned, with no criteria. Held excessive delegation and void: the Act gave no guidance on which diseases could be added.
• Devi Das Gopal Krishnan v. State of Punjab, 1967 INSC 100, AIR 1967 SC 1895. The Punjab General Sales Tax Act left the rate of tax to the Government without any limit or guidance. Held excessive delegation. Fixing the rate of a tax is a legislative function unless the Act supplies the policy.
• Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills, 1968 INSC 47, AIR 1968 SC 1232. Leaving the rate of a municipal tax to an elected corporation was upheld by majority: the corporation was a representative body, answerable to its ratepayers, and its needs supplied the limit. The nature of the delegate is relevant.
• Gwalior Rayon Silk Mfg. Co. v. Assistant Commissioner of Sales Tax, 1973 INSC 254, (1974) 4 SCC 98. Section 8(2)(b) of the Central Sales Tax Act, 1956 linked the central rate to the rate under the State law. Upheld. Khanna J. for the majority applied the policy-and-guidelines test. Mathew J., concurring, proposed a different test: there is no abdication so long as the legislature retains the power to repeal the delegating Act and take the power back. The majority did not accept Mathew J.'s test, and the policy test remains the law.

4. Henry VIII clause and power to remove difficulties

A Henry VIII clause allows the executive to modify the parent Act itself, so named after the Statute of Proclamations, 1539. In India, “removal of difficulties” clauses are of two types. One allows the Government to remove difficulties consistently with the Act; that is valid. The other allows it to modify the Act itself to remove difficulties; that is valid only within narrow limits, usually for a short period after commencement and without touching the policy of the Act. A clause permitting the executive to alter the essential features of the statute falls foul of the Delhi Laws Act principle.

5. Conditional legislation

Conditional legislation is different from delegated legislation. The legislature makes a complete law but leaves it to the executive to decide when or where it will apply, on the happening of a condition. The executive applies the law; it does not make it. The idea comes from the Privy Council's decision in The Queen v. Burah (1878), where a power to extend an Act to the Garo Hills was upheld. Examples are notifications bringing an Act into force on an appointed day or extending it to an area. Because nothing legislative is delegated, the test of excessive delegation does not strictly apply; the only question is whether the condition has been satisfied.

6. Sub-delegation

The maxim is delegatus non potest delegare: a delegate cannot further delegate. A power conferred on a named authority must be exercised by that authority unless the statute, expressly or by necessary implication, permits it to be passed on. In Ganapati Singhji v. State of Ajmer, 1954 INSC 117, AIR 1955 SC 188, the parent Act empowered the Chief Commissioner to make rules for a system of conservancy and sanitation at fairs. He made rules that left it to the District Magistrate to frame the actual arrangements. Held: the Act did not authorise this, and the sub-delegation was invalid.

In Sahni Silk Mills (P) Ltd. v. Employees' State Insurance Corporation, 1994 INSC 252, (1994) 5 SCC 346, which concerned the power to levy damages for late payment of contributions under the ESI Act, the Court restated the position: the legislature may permit a statutory authority to delegate its power once the policy is laid down in the statute, but a further delegation by the delegate raises a separate question, and the power to sub-delegate must be found in the statute itself. The more serious the power (a power to impose a penalty, for example), the less readily it will be inferred. Where sub-delegation is permitted, the sub-delegate must stay within the limits of the original delegation and of the parent Act.

7. Problem

The Central Government delegated power to the State Government to take loans from the Asian Development Bank for infrastructure. The State delegated this power to its city and municipal corporations. A city corporation borrowed from the ADB and imposed a self-assessment scheme for house tax within its limits. Citizens challenge the delegation from the State to the corporation. Decide. (June 2025)

Issue. Whether the State, itself a delegate, could pass on the borrowing power to the corporations; and whether the corporation could impose a new tax scheme on that basis.

Law. Delegatus non potest delegare: sub-delegation is valid only if the instrument conferring the power permits it (Ganapati Singhji, Sahni Silk Mills). Taxation needs the authority of law (Article 265); a municipality can levy taxes only as authorised by a State law under Article 243X. An executive delegation cannot be the source of a taxing power.

Application. Nothing in the facts shows that the Central delegation allowed the State to pass the power on. If it did not, the State's delegation to the corporations is invalid and the borrowing rests on no authority. Even if the borrowing was validly authorised, the self-assessment house tax is a different matter: it must rest on the municipal statute, not on a power to borrow. If the municipal law authorises property tax and permits self-assessment, the scheme stands on that law; if not, it is without authority of law.

Conclusion. The challenge succeeds unless the Central delegation expressly or by necessary implication allowed sub-delegation. The tax scheme is valid only if the State municipal law authorises it, and not by virtue of the delegation of the borrowing power.

How this is examined

The June 2025 essay asked candidates to “critically examine the constitutionality of delegated legislation in India with reference to decided cases”: answer with section 1, Delhi Laws Act, Rajnarain Singh, then the policy cases in order, and Mathew J.'s alternative. Sub-delegation is a regular 6-mark note (both 2025 and 2026 papers) and the ADB problem above was set in June 2025.