Module 2 Admin Law
Module 2 Admin Law
Module 2 Admin Law
Introduction
Conventionally, the function of the executive is administering the law enacted by legislature and in ideal state
the legislative power must be exclusively dealt by the legislature.
However, due to emergence of concept of welfare state, this does not hold true. Keeping the exigencies of
modern govt. in view, Parliament and state legislatures have to delegate the power in order to deal with
multiple problems prevailing in India, as it is impossible to expect them to come with complete and
comprehensive legislation on all subjects sought to be legislated on.
Meaning
When the function of legislation is entrusted to organs, other than the legislature by the legislature itself, the
legislation made by such organs is called delegated legislation.
Delegated Legislation (subordinate legislation) refers to all law - making which takes place outside the
legislature and is generally expressed as rules, regulations, bye-laws, orders, schemes, directions, or
notifications etc.
In the Indian Constitution, rule-making power or quasi legislative action is not so expressly vested in the
legislature, yet combined effect of Articles 107 to 111 and 196 to 201 is that the law - making power can be
exercised for the Union by Parliament and for the States by the respective Legislatures.
A Delegated legislation is a clause in law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary legislation.
Delegated legislation allows the Government to make changes to a law without needing to push through a
completely new Act of Parliament. Delegated Legislation is law made by a body other than Parliament.
E.g. In India, between 1973 and 1977, Parliament enacted about 302 statues, but total number of statutory
rules and orders reached more than 25,414.
Definition
Prof. Wade and Phillips- In their Book on “Constitutional Law” observed: “The mass of details involved in
the modern administration and the extension of the functions of the State to the economic and social sphere
have rendered it essential for the Parliament to delegate to the Ministers the power to make statutory
instruments.”
Justice Mukherjea, J- “Delegated legislation is an expression which covers a multitude of confusion. It is an
excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists.”
Salmond- “Legislation is either supreme or subordinate. Whereas the former proceeds from sovereign or super
power, the latter flows from any authority other than the sovereign power, and, is, therefore, dependent for its
existence and continuance on superior or supreme authority.”
Sir Cecil Carr- “Delegated legislation is growing child called upon to relieve the parent of the strain of
overwork and capable of attending to minor matters, while the parent manages main business.”
Halsbury’s Laws of England- “When an instrument of legislative nature is made by an authority in exercise
of power delegated or conferred by the legislature it is called Subordinate legislation”.
Jain and Jain- The term “delegated legislation” is used in two senses:
exercise by a subordinate agency of the legislative power delegated to it by the legislature, or
the subsidiary rules themselves which are made by the subordinate authority in pursuance of the power
conferred on it by the legislature
For example:
1. The Minimum Wages Act,1948-
It is to provide for fixing minimum wages in certain employments.
Kinds of Legislation
1. Supreme Legislation-
Salmond- An Act of Legislature proceeds from the supreme power of the State and has no rival in the field. It
also does not derive its authority from any other organ of the State.
Legislature can lay down the policy and purpose of legislation and leave it to the executive for working details
within the framework of the enactment.
2. Delegated Legislation or Subordinate Legislation
Salmond- Subordinate legislation is framed by the executive and owes its existence, continuance and validity
on superior or supreme authority, i.e. legislature. An executive body can make subordinate legislation only if
such power is conferred on it by a competent legislature. Again, a subordinate law-making body is bound by
the terms of its delegated or derive authority.
3. E.g. Section 34 in the Contract Labour (Regulation and Abolition) Act, 1970
Power to remove difficulties- “If any difficulty arises in giving effect to the provisions of this Act, the Central
Government may, by order published in the Official Gazette, make such provisions not inconsistent with the
provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty.”
Power to make rules, etc. to carry out the purpose of the Act: E.g. Sec.30, Securities Contracts (Regulation)
Act, 1956.
The Central Government may, by notification in the Official Gazette, make rules for the purpose of carrying
into effect the objects of this Act. Sec. 133 of the Trade and Merchandise Marks Act, 1958 etc.
The Central Government may, by notification in the Official Gazette and subject to the condition of previous
publication, make rules to carry out the purposes of this Act.
Power to determine the issue as to whether or not conditions required to be fulfilled for operation of the Act,
have been fulfilled: E.g. Sec.79- the Customs Tariff Act, 1975- Power to levy tax or duty.
Authority based classification (sub-delegation)
A statute may also empower the executive to delegate further powers conferred on it to its subordinate
authority. This is known as “sub-delegation”.
Case Law: A.K. Roy v. State of Punjab (1986) 4 SCC 326)- In this case the power to initiate prosecution for
offences under Section 20(1) of the Food Adulteration Act, 1954 had been given to the State Government.
The Act had not authorised sub-delegation of power. Nevertheless, under the Rule 3 of the Prevention of Food
Adulteration (Punjab)Rules, 1958, the power of prosecution was delegated to the Food Inspector. The Court
held the sub-delegation as ultra vires the Parent Act.
Nature based classification
1. Normal delegation
Positive – where limits of delegation are clearly defined in the enabling Act.
Negative – where power delegated does not include power to do certain things, i.e. legislate on matters
of policy.
2. Exceptional delegation (also known as Henry VIII clause to indicate executive autocracy)
Instances of exceptional delegation may be:
Power to legislate on matters of principle policy
Power to amend Acts of Parliament of existing law
Power conferring such a wide discretion that it is almost impossible to know limits
Power to make rules without being challenged in a court of law
Exceptional delegation is also known as Henry VIII Clause to indicate executive autocracy. Henry VIII was
the King of England in the 16th century. He imposed his will through the instrumentality of Parliament, so he
is described as a despot under the forms of law. Under this clause, very wide powers were given to given
administrative agencies to make rules, including the power to amend and repeal.
Henry VIII Clause is found in the Constitution of India. u/A 372(2) of the Indian Constitution, the President
has been delegated the power to adapt, amend and repeal any law in force to bring it in line with the provisions
of the Constitution, and the exercise of the such power has been made immune from the scrutiny of courts.
Excessive Delegation
The essential and primary legislative functions must be performed by the legislature itself and they cannot be
delegated to the executive.
Essential legislative functions consist of determination of legislative policy and its formulation as a rule of
conduct.
The power has been delegated to the legislature by the Constitution.
Abdication (Abandonment of sovereignty)
Principles
The question whether there is excessive delegation or not, has to be examined in the light of three broad
principles:
a) Essential legislative functions to enact laws and to determine legislative policy cannot be delegated.
b) In the context of modern conditions and complexity of situations, the legislature has to delegate certain
functions provided it lays down legislative policy.
c) If the power is conferred on the executive in a manner which is lawful and permissible, the delegation
cannot be held to be excessive merely on the ground that the legislature could have made more detailed
provisions.
Test
A Statute challenged on the ground of excessive delegation must be subjected to two tests.
a) Whether it delegates essential legislative function, and
b) Whether the legislature has enunciated its policy and principle for the guidance of the executive.
Powers and duties of courts
Delegation of law making power is dynamo of modern Government. If legislative policy is enunciated by the
legislature and a standard has been laid down, the Court will not interfere with the discretion to delegate non
– essential functions to the executive.
Quasi Legislation
E.g. directions under Articles 73 & 162.
A quasi-legislative capacity is that in which a public administrative agency or body acts when it makes rules
and regulations.
Administrative agency rules are made only with the permission of elected lawmakers.
Dozens of administrative agencies exist on the federal level, and more exist on the state and local levels.
(environmental matters, department of revenue etc.)
Except where prohibited by statute or judicial precedent, quasi-legislative activity may be challenged in a
court of law.
Another distinctive feature of quasi-legislative activity is the provision of notice and a hearing.
Sub-delegation (Delegatus Non Potest Delegare)- When a statute confers some legislative powers on an
executive authority and the latter further delegates those powers to another sub-ordinate authority or agency,
it is called “Sub-delegation”.
E.g. Sec. 3 of The Essential Commodities Act, 1955 confers power on the Central Govt. Again, Sec.5 of the
same Act empowers the Central Govt. to delegate powers to its own officers, or to the State Governments or
their officers. The State Govt. may itself further sub delegate these powers to its officers or authorities.
“Delegatus Non Potest Delegare”: A delegate cannot further delegate. Sub-delegation of legislative power,
though, generally impermissible, can be permitted either when such power is expressly conferred by the statute
or can be inferred by necessary implication.
Case Law: A.K Roy v. State of Punjab (1986 4 SCC 326). Prevention of Food Adulteration Act, 1954. The SC
held sub-delegation unauthorised and quashed the notification.
b. Conclusive Evidence
Sec 35 of the Companies Act, 1956
Sec 35 treats a certificate of incorporation given by the Registrar of the Joint Stock Companies to be conclusive
evidence that all the requirements of the Act have been complied with.
c. Shall not be called in question
Case Law: India General Navigation & Rly Co. Ltd. v. Workmen (AIR 1960 SC 219)-
In this case an award was made by the Industrial Tribunal, Assam under the ID Act, 1947 and it was published
in accordance with Se. 17-A of the Act.
In the present case, where the appellants, who were carrying on business in water transport service, notified
as a public utility service, dismissed their workmen for joining an illegal strike, on enquiry but without serving
a charge-sheet on each individual workman and the Industrial Tribunal directed their reinstatement, excluding
only those who had been convicted under Sec 143 of the Indian Penal Code but including those convicted
under s. 188 of the Code, with full back wages and allowances.
The SC held, that the decision of the Tribunal to reinstate those who had been convicted under s. 188 of the'
Code must be set aside and the wages and allowances allowed to those reinstated must be reduced by half and
the award modified accordingly.
Section 17(2) of the ID Act, 1947 provided that the award published u/s 17(1) shall be final and shall not be
called in question by any court in any manner whatsoever.
Rejecting the contention, the SC held that, the provisions of the Act must be read subject to the over-riding
provisions of the Constitution(Art.136). Therefore, whatever finality may have claimed under the provisions
of the Act, in respect of the Award, by virtue of Ss. 17&17-A of the Act, it must necessarily be subject to the
result of the determination of the appeal by special leave.
A. Drafting
The Committee on Sub-Ordinate Legislation in India rightly recommended that the language of rules should
be simple and clear and not complicated or ambiguous. The drafting of delegated legislation by an expert
draftsman who is, at the same time, in a position to advise whether the proposed rules and regulations are intra
vires is obviously a valuable safeguard. In the absence of this safeguard, poorly drafted rules, in many
situations, create great hardship for the people by increasing avoidable litigation.
B. Antenatal publicity
In India there is no separate law governing the procedure of administrative rule-making and the Parent Act
may or may not provide for the procedural requirement. However, in some cases the Parents Acts have
provided for antenatal publicity.
Sec 15 of the Central Tea Board Act, 1949
Sec 30(3) of the Chartered Accountants Act, 1949
Sec 43 of the Co-operative Societies Act, 1912 may be cited as examples where it was provided that the rules
must first be published in draft form to give an opportunity to the people to have their say in the rule-making.
C. Consultation with affected persons
a. Official consultation with a named body
E.g. The Banking Companies Act, 1970 provides for prior consultation with RBI before making rules under
the Act.
b. Consultation with administrative boards
E.g. The Mines Act, 1952 sets up Administrative Boards to advise the Govt. and makes obligatory prior
consultation with the Boards before Central Govt. makes the rules under the Act.
c. Consultation with a statutory board in charge of a particular subject
E.g. The Tea Board Act, 1949 makes it obligatory to consult Tea Board before the Govt. can frame the rules
under the Act.
d. Consultation with interested persons
E.g. Amendments to Food Adulteration Rules and Standards, 2004 for food items are similar for drugs and
cosmetics as well as rates of minimum wages call for representations and suggestions from the general public
by publishing the draft rules in the Official Gazette.
e. Preparation of rules by the affected interests
In order to guarantee complete efficacy and acceptability, the Mines Act, 1952 empowers the owners of mines
to draft rules themselves and submit them to the inspector of mines. Such rules become operative on being
approved by the Govt.
D. Postnatal publicity (Post-publication)
Case Laws: State of Maharashtra v. Mayer Hans George (1965) 1 SCR 123-
The respondent, Mayer Hans George, a German smuggler, left Zurich by plane on 27th November 1962 with
34 kilos of gold concealed on his person to be delivered in Manila. The plane arrived at Bombay on 28th of
November. The Customs Authorities, as a part of their duties, inspected to check if any gold was dispatched
by any traveler and looked through George, seized his gold and accused him of the offence under sec 8(10)
and 23(1-A) of the Foreign Exchange Regulation Act. This section of FRTA is read with a notification dated
November 8, 1962, of the RBI which was published in the Gazette of India on 24th of November.
The respondent was convicted by the Magistrate, but acquitted by the High Court, but the further appeal was
made by the state in the court of law.
Issue: Whether the respondent is guilty of bringing gold in India under sec 8(1) and 23(1-A) of the FERA
which was published in the Gazette of India on 24th November 1962?
The SC held that it cannot interfere with the sentenced passed by the lower courts unless they are in violation
of the principle or are illegal. But since this case has some unusual characters therefore George was convicted
but his years of imprisonment was reduced.
a. Publication - Mandatory or Directory
No hard and fast rule of universal application of can be held down as to when a provision to consultation
should be held as mandatory and when it should be regarded as directory.
b. Mode of publication
Even if requirement of publication is held to be mandatory, the mode or manner of publication may be held
to be directory and strict compliance thereof may not be insisted upon.
c. Defect in publication
If delegated legislation is not published at all, the defect goes to the root and makes the instrument non est.,
ineffective and of no consequence. But, if it is not published in a particular manner, it would not necessarily
make the instrument void. Effect to publish in the manner provided by law would be considered by the court.
d. Omnibus curative clause: ’Ganga clause’
Sometimes a statue or an Act provides that no act done or proceeding taken shall be called in question merely
on the ground of any defect or irregularity in such Act or proceeding, not affecting the merits of the case. This
is known as the conclusive evidence clause or omnibus curative clause or Ganga clause.
Parliamentary/ Legislative Control
Modes:
1. Laying on Table and its types
2. Scrutiny Committees
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