Delegated legislation: kinds, limits and control

1. Why delegation is unavoidable

Parliamentary time is limited; subjects are technical; conditions change faster than Acts can be amended; emergencies need quick rules; and experimentation is easier by rule than by statute. The Donoughmore Committee on Ministers’ Powers (UK, 1932) accepted delegation as inevitable while urging safeguards. Lord Hewart’s The New Despotism (1929) is the classic warning against it.

2. Kinds of subordinate legislation

A short note on “kinds of subordinate legislation” can be arranged in three ways: by name, by function, and by the authority that makes it.

By name

• Rules — made by the government under a rule-making section, usually to carry out the purposes of the Act.
• Regulations — often made by statutory bodies (SEBI, RBI, UGC) for their own field.
• Bye-laws — made by local and other corporate bodies for their area or members.
• Orders and notifications — applying, extending or exempting under the Act.
• Schemes, directions, circulars — not all have the force of law; the parent Act decides.

By function

• Supplementary or ancillary — filling in detail within the Act’s policy.
• Conditional legislation — the legislature makes the law complete and leaves to the executive only the decision when or where it applies. The distinction from true delegation was drawn in Queen v. Burah (Privy Council, 1878).
• Power to modify or adapt the Act or other laws, including the “Henry VIII clause” permitting amendment of the parent Act to remove difficulties.
• Power to exempt, to fix rates, or to impose a tax within limits.
• Sub-delegation — the delegate delegating further, valid only where the parent Act permits it expressly or by necessary implication.
• Skeleton legislation — an Act that sets only a framework and leaves substance to rules; the most open to challenge.

By authority

Central and State Governments; statutory regulators; local authorities; courts (rules of procedure); and autonomous bodies such as universities.

3. How much can be delegated? The Indian case law

• In re Delhi Laws Act, 1912, 1951 INSC 36, AIR 1951 SC 332. The seven judges gave several opinions, but the agreed core is that the legislature cannot abdicate its essential legislative function — determining the policy and laying it down as a binding rule of conduct. A power to extend laws to a territory with modifications was upheld, but a power to repeal existing laws in force there was struck down.
• Rajnarain Singh v. Chairman, Patna Administration Committee, 1954 INSC 69, AIR 1954 SC 569: a power of “modification” does not allow a change of essential policy.
• Hamdard Dawakhana v. Union of India, 1959 INSC 168, AIR 1960 SC 554: delegation without any policy or guidance in the Act is excessive.
• Devi Das Gopal Krishnan v. State of Punjab, 1967 INSC 100, AIR 1967 SC 1895: an unguided power to fix the rate of sales tax was excessive delegation.
• Gwalior Rayon Silk Mfg. Co. v. Assistant Commissioner of Sales Tax, 1973 INSC 254, (1974) 4 SCC 98: Khanna J. (majority) applied the policy-and-guidelines test; Mathew J. proposed a narrower abdication test, under which delegation is valid so long as the legislature retains the power to repeal or control the delegate. The majority test prevails.

4. Controls

(a) Parliamentary control

• Laying before the House: simple laying; laying subject to negative resolution (annulment or modification within a period); laying subject to affirmative resolution (no effect without approval). Most Indian Acts require rules to be laid and allow modification or annulment.
• Committees on Subordinate Legislation of the Lok Sabha (from 1953) and the Rajya Sabha (from 1964) examine whether rules stay within the Act, impose taxes, exclude courts, operate retrospectively without authority, or are unclear.
• The memorandum regarding delegated legislation that accompanies every Bill tells Parliament what it is delegating.

(b) Procedural control

• Publication in the Official Gazette; a rule not published is not enforceable against the citizen.
• Previous publication and invitation of objections where the parent Act requires it (section 23 of the General Clauses Act, 1897 sets out the procedure).
• Consultation with specified bodies where required.

(c) Judicial control

Subordinate legislation can be challenged on more grounds than an Act. Indian Express Newspapers v. Union of India, 1984 INSC 231, (1985) 1 SCC 641, listed them: lack of legislative competence in the delegate; violation of fundamental rights; violation of any provision of the Constitution; failure to conform to the parent Act; repugnance to any other enactment; and manifest arbitrariness or unreasonableness, in the sense that Parliament could never have intended to give authority to make such a rule. Substantive ultra vires (beyond the Act or the Constitution) and procedural ultra vires (failure to follow mandatory procedure) are the two heads.

5. Comparative position

• United Kingdom: the Statutory Instruments Act 1946; the Joint Committee on Statutory Instruments and the Lords Secondary Legislation Scrutiny Committee; courts review instruments for vires, but Parliament’s power to delegate is unlimited.
• United States: the non-delegation doctrine requires an “intelligible principle” (J.W. Hampton Jr. & Co. v. United States, 1928); statutes were struck down in Schechter Poultry Corp. v. United States (1935). More recently the “major questions” doctrine (West Virginia v. EPA, 2022) requires clear authorisation for rules of vast economic or political significance, and Loper Bright Enterprises v. Raimondo (2024) ended judicial deference to agency interpretations of statutes.
• European Union: Article 290 TFEU allows the legislature to delegate power to the Commission to adopt non-legislative acts that supplement or amend non-essential elements, with the objectives, content, scope and duration of the delegation defined in the legislative act. This is the essential-function principle written into a treaty.

How this is examined

“Kinds of subordinate legislation” was a short note in August 2024 (Q.7(c)); use the three classifications in section 2. A longer question on delegated legislation needs the essential-function cases (Delhi Laws Act to Gwalior Rayon), the three forms of control with Indian Express for the judicial grounds, and the UK, US and EU comparison. If the question links delegation to arbitrariness, connect this note to the note on law-making in Parliament.