Thus broadly speaking, acts, which are required to be done on the subjective

satisfaction of the administrative authority, are called ‘administrative’ acts,

while acts, which are required to be done on objective satisfaction of the
administrative authority, can be termed as quasi-judicial acts. Administrative
decisions, which are founded on pre-determined standards, are called
objective decisions whereas decisions which involve a choice as there is no
fixed standard to be applied are so called subjective decisions. The former is
quasi-judicial decision while the latter is administrative decision. In case of
the administrative decision there is no legal obligation upon the person
charged with the duty of reaching the decision to consider and weigh,
submissions and arguments or to collate any evidence. The grounds upon
which he acts and the means, which he takes to inform himself before acting,
are left entirely to his discretion. The Supreme Court observed, “It is well
settled that the old distinction between a judicial act and administrative act
has withered away and we have been liberated from the pestilent incantation
of administrative action.
(iv) Ministerial action – A further distillate of administrative action is
ministerial action. Ministerial action is that action of the
administrative agency, which is taken as matter of duty imposed
upon it by the law devoid of any discretion or judgment. Therefore,
a ministerial action involves the performance of a definitive duty in
respect of which there is no choice. Collection of revenue may be
one such ministerial action.

1. Notes and administrative instruction issued in the absence of any

2. If administrative instructions are not referable to any statutory
authority they cannot have the effect of taking away rights vested in
the person governed by the Act.

DELEGATED LEGISLATION

One of the most significant developments of the present century is the growth
in the legislative powers of the executives. The development of the legislative
powers of the administrative authorities in the form of the delegated legislation
occupies very important place in the study of the administrative law. We know
that there is no such general power granted to the executive to make law it
only supplements the law under the authority of legislature. This type of
activity namely, the power to supplement legislation been described as
delegated legislation or subordinate legislation.

Why delegated legislation becomes inevitable The reasons as to why the

Parliament alone cannot perform the jobs of legislation in this changed
context are not far to seek. Apart from other considerations the inability of the
Parliament to supply the necessary quantity and quality legislation to the
society may be attributed to the following reasons :

Module – 1 32
 i) Certain emergency situations may arise which necessitate
special measures. In such cases speedy and appropriate action
is required. The Parliament cannot act quickly because of its
political nature and because of the time required by the
Parliament to enact the law.

ii) The bulk of the business of the Parliament has increased and it
has no time for the consideration of complicated and technical
matters. The Parliament cannot provide the society with the
requisite quality and quantity of legislation because of lack of
time. Most of the time of the Parliament is devoted to political
matters, matters of policy and particularly foreign affairs..

iii) Certain matters covered by delegated legislation are of a

technical nature which require handling by experts. In such
cases it is inevitable that powers to deal with such matters is
given to the appropriate administrative agencies to be exercised
according to the requirements of the subject matter.
"Parliaments" cannot obviously provide for such matters as the
members are at best politicians and not experts in various
spheres of life.

iv) Parliament while deciding upon a certain course of action cannot

foresee the difficulties, which may be encountered in its
execution. Accordingly various statutes contain a 'removal of
difficulty clause' empowering the administration to remove such
difficulties by exercising the powers of making rules and
regulations. These clauses are always so worded that very wide
powers are given to the administration.

iv) The practice of delegated legislation introduces flexibility in the

law. The rules and regulations, if found to be defective, can be
modified quickly. Experiments can be made and experience can
be profitability utilized.

However the attitude of the jurists towards delegated legislation has not been
unanimous. The practice of delegated legislation was considered a factor,
which promoted centralization. Delegated Legislation was considered a
danger to the liberties of the people and a devise to place despotic powers in
few hands. It was said that delegated legislation preserved the outward show
of representative institutions while placing arbitrary and irresponsible power in
new hands. But the tide of delegated legislation was high and these protests
remained futile.

A very strong case was made out against the practice of

Delegated Legislation by Lord Hewart who considered increased
governmental interference in individual activity and considered this practice as
usurpation of legislative power of the executive. He showed the dangers
inherent in the practice and argued that wide powers of legislation entrusted
to the executive lead to tyranny and absolute despotism. The criticism was so

Module – 1 33
strong and the picture painted was so shocking that a high power committee
to inquire into matter was appointed by the Lord Chancellor. This committee
thoroughly inquired into the problem and to the conclusion that delegated
legislation was valuable and indeed inevitable. The committee observed that
with reasonable vigilance and proper precautions there was nothing to be
feared from this practice.

Nature and Scope of delegated legislation Delegated legislation means

legislation by authorities other than the Legislature, the former acting on
express delegated authority and power from the later.

Delegation is considered to be a sound basis for administrative efficiency and

it does not by itself amount to abdication of power if restored to within proper
limits. The delegation should not, in any case, be unguided and uncontrolled.
Parliament and State Legislatures cannot abdicate the legislative power in its
essential aspects which is to be exercised by them. It is only a nonessential
legislative function that can be delegated and the moot point always lies in the
line of demarcation between the essential and nonessential legislative
functions.

The essential legislative functions consist in making a law. It is to the

legislature to formulate the legislative policy and delegate the formulation of
details in implementing that policy. Discretion as to the formulation of the
legislative policy is prerogative and function the legislature and it cannot be
delegated to the executive. Discretion to make notifications and alterations in
an Act while extending it and to effect amendments or repeals in the existing
laws is subject to the condition precedent that essential legislative functions
cannot be delegated authority cannot be precisely defined and each case has
to be considered in its setting.

In order to avoid the dangers, the scope of delegation is strictly circumscribed

by the Legislature by providing for adequate safeguards, controls and
appeals against the executive orders and decisions.

The power delegated to the Executive to modify any provisions of an Act by

an order must be within the framework of the Act giving such power. The
power to make such a modification no doubt, implies certain amount of
discretion but it is a power to be exercised in aid of the legislative policy of the
Act and cannot

i) travel beyond it, or

ii) run counter to it, or
iii) certainly change the essential features, the identity, structure or
the policy of the Act.

Under the constitution of India, articles 245 and 246 provide that the
legislative powers shall be discharged by the Parliament and State legislature.
The delegation of legislative power was conceived to be inevitable and
therefore it was not prohibited in the constitution. Further, Articles 13(3)(a) of

Module – 1 34
the Constitution of India lays down that law includes any ordinances, order by-
law, rule regulation, notification, etc. Which if found inviolation of fundamental
rights would be void. Besides, there are number of judicial pronouncements
by the courts where they have justified delegated legislation. For e.g.

In re Delhi Laws Act case, AIR 1961 Supreme Court 332; Vasantlal Magan Bhaiv.
State of Bombay, air 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR
1977 J&K 4.

While commenting on indispensability of delegated legislation JusticeKrishna

Iyer has rightly observed in the case of Arvinder Singh v. State of Punjab, AIR
A1979 SC 321, that the complexities of modern administration are so bafflingly
intricate and bristle with details, urgencies, difficulties and need for flexibility
that our massive legislature may not get off to a start if they must directly and
comprehensively handle legislative business in their plentitude, proliferation
and particularization Delegation of some part of legislative power becomes a
compulsive necessity for viability.

A provision in a statute which gives an express power to the Executive to

amend or repeal any existing law is described in England as Henry viii
Clause because the King came to exercise power to repeal Parliamentary
laws. The said clause has fallen into disuse in England, but in India some
traces of it are found here and there, for example, Article 372 of the
Constitution authorizes the president of India to adopt pro Constitutional laws,
and if necessary, to make such adaptations and modifications, (whether by
way of repeal or amendment) so as to bring them in accord with the
provisions of the Constitution. The State Reorganization Act, 1956 and some
other Acts similar thereto also contain such a provision. So long as the
modification of a provision of statute by the Executive is innocuous and
immaterial and does not effect any essential change in the matter.

Types of delegation of legislative power in India There are various types of

delegation of legislative power.

1. Skeleton delegation In this type of delegation of legislative power, the

enabling statutes set out broad principles and empowers the executive
authority to make rules for carrying out the purposes of the Act.
A typical example of this kind is the Mines and Minerals (Regulation
and Development) Act, 1948.

2. Machinery type This is the most common type of delegation of

legislative power, in which the Act is supplemented by machinery provisions,
that is, the power is conferred on the concerned department of the
Government to prescribe –

i) The kind of forms

ii) The method of publication

Module – 1 35
 iii) The manner of making returns, and
v) Such other administrative details

In the case of this normal type of delegated legislation, the limits of the
delegated power are clearly defined in the enabling statute and they do not
include such exceptional powers as the power to legislate on matters of
principle or to impose taxation or to amend an act of legislature. The
exceptional type covers cases where –

i) the powers mentioned above are given , or

ii) the power given is so vast that its limits are almost impossible of
definition, or
iii) while limits are imposed, the control of the courts is ousted.
Such type of delegation is commonly known as the Henry VIII Clause.

An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912
by which the Provincial Government was authorized to extend, with
restrictions and modifications as it thought fit any enactment in force in any
part of India to the Province of Delhi. This is the most extreme type of
delegation, which was impugned in the Supreme Court in the Delhi Laws Act
case. A.I.R. 1951 S.C.332. It was held that the delegation of this type was invalid if
the administrative authorities materially interfered with the policy of the Act, by
the powers of amendment or restriction but the delegation was valid if it did
not effect any essential change in the body or the policy of the Act.

That takes us to a term "bye-law" whether it can be declared ultra vires

? if so when ? Generally under local laws and regulations the term bye-law is
used such as

i) public bodies of municipal kind

ii) public bodies concerned with government, or
iii) corporations, or
iv) societies formed for commercial or other purposes.

The bodies are empowered under the Act to frame bye-laws and regulations
for carrying on their administration.
There are five main grounds on which any bye-law may be struck down as
ultra vires. They are :

a) That is not made and published in the manner specified by the

Act, which authorises the making thereof;
b) That is repugnant of the laws of the land;
c) That is repugnant to the Act under which it is framed;

Module – 1 36
 d) That it is uncertain ; and
e) That it is unreasonable.

Modes of control over delegated legislation The practice of conferring legislative

powers upon administrative authorities though beneficial and necessary is
also dangerous because of the possibility of abuse of powers and other
attendant evils. There is consensus of opinion that proper precautions must
be taken for ensuring proper exercise of such powers. Wider discretion is
most likely to result in arbitrariness. The exercise of delegated legislative
powers must be properly circumscribed and vigilantly scrutinized by the Court
and Legislature is not by itself enough to ensure the advantage of the practice
or to avoid the danger of its misuse. For the reason, there are certain other
methods of control emerging in this field.

The control of delegated legislation may be one or more of the

following types: -
1) Procedural;
2) Parliamentary; and
3) Judicial

Judicial control can be divided into the following two classes: -

i) Doctrine of ultra vires and
vi) Use of prerogative writs.

Procedural Control Over Delegated Legislation

(A Prior consultation of interests likely to be affected by proposed delegated
Legislation From the citizen's post of view the must beneficial safeguard
against the dangers of the misuse of delegated Legislation is the development
of a procedure to be followed by the delegates while formulating rules and
regulations. In England as in America the Legislature while delegating powers
abstains from laying down elaborate procedure to be followed by the
delegates. But certain acts do however provide for the consultation of
interested bodies. and sometimes of certain Advisory Committees which must
be consulted before the formulation and application of rules and regulations.
This method has largely been developed by the administration independent of
statute or requirements. The object is to ensure the participation of affected
interests so as to avoid various possible hardships. The method of
consultation has the dual merits of providing as opportunity to the affected
interests to present their own case and to enable the administration to have a
first-hand idea of the problems and conditions of the field in which delegated
legislation is being contemplated.

(B) Prior publicity of proposed rules and regulations Another method is

antecedent publicity of statutory rules to inform those likely to be affected by
the proposed rules and regulations so as to enable them to make
representation for consideration of the rule-making authority. The rules of

Module – 1 37
Publication Act, 1893, S.I. provided for the use of this method. The Act
provided that notice of proposed 'statutory rules' is given and the
representations of suggestions by interested bodies be considered and acted
upon if proper. But the Statutory Instruments Act, 1946 omitted this practice in
spite of the omission, the Committee on Ministers Powers 1932, emphasized
the advantages of such a practice.

(c) Publication of Delegated Legislation - Adequate publicity of delegated

legislation is absolutely necessary to ensure that law may be ascertained with
reasonable certainty by the affected persons. Further the rules and
regulations should not come as a surprise and should not consequently bring
hardships which would naturally result from such practice. If the law is not
known a person cannot regulate his affiars to avoid a conflict with them and to
avoid losses. The importance of these laws is realised in all countries and
legislative enactments provide for adequate publicity.

(d) Parliamentary control in India over delegation In India, the question of

control on rule-making power engaged the attention of the Parliament. Under
the Rule of Procedure and Conduct of Business of the House of the People
provision has been made for a Committee which is called 'Committee on
Subordinate Legislation'.

The First Committee was constituted on Ist December, 1953 for

i) Examining the delegated legislation, and
ii) Pointing out whether it has-
a) Exceeded or departed from the original intentions of the
Parliament, or
b) Effected any basic changes.

Originally, the committee consisted to 10 members of the House and its

strength was later raise to 13 members. It is usually presided over by a
member of the Opposition. The Committee

i) scrutinizes the statutory rules, orders. Bye-laws, etc. made by

any-making authority, and
ii) report to the House whether the delegated power is being
properly exercised within the limits of the delegated authority,
whether under the Constitution or an Act of Parliament.
It further examines whether
i) The Subordinate legislation is in accord with the general objects
of the Constitution or the Act pursuant to which it is made;
ii) it contains matter which should more properly be dealt within an
Act of Parliament;
iii) it contains imposition of any tax;

Module – 1 38
 iv) it, directly or indirectly, ousts the jurisdiction of the courts of law;
v) it gives retrospective effect to any of the provisions in respect of
which the Constitution or the Act does not expressly confer any
such power;
vi) It is constitutional and valid;
vii) it involves expenditure from the Consolidated Fund of India or
the Public Revenues;
viii) its form or purpose requires any elucidation for nay reason;
ix) it appears to make some unusual or unexpected use of the
powers conferred by the Constitution or the Act pursuant to
which it is made; and
x) there appears to have been unjustifiable delay in its publication
on its laying before the Parliament.
The Committee of the first House of the People submitted a number of reports
and continues to do useful work. The Committee considered the question of
bringing about uniformity in the provisions of the Acts delegating legislative
powers. It made certain recommendations in its First report (March, 1954)
which it later modified in its Third Report (May, 1955) after noting the existing
divergent legislation in India. The following are the modified recommendations

1. That, in future, the Acts containing provisions for making rules, etc.,
shall lay down that such rules shall be laid on the Table as soon as possible.

2. That all these rules shall be laid on the Table for a uniform and total
period of 30 days before the date of their final publication.

But it is not deemed expedient to lay any rule on the Table before the date of
publication; such rule may be laid as soon as possible after publication. An
Explanatory Note should, however, accompany such rules at the time they are
so laid, explaining why it was not deemed expedient to lay these rules on the
Table of the House before they were published.

3. On the recommendation of the Committee, the bills are generally

accompanied with Memoranda of Delegated Legislation in which; -.
i) full purpose and effect of the delegation of power to the subordinate
authorities,
ii) the points which may be covered by the rules,
iii) the particulars of the subordinate authorities or the persons who are to
exercise the delegated power, and
iv) the manner in which such power has to be exercised, are mentioned.
They point out if the delegation is of normal type or unusual.

Module – 1 39
The usefulness of the Committee lies more in ensuring that the standards of
legislative rule-making are observed that in merely formulating such
standards. It should effectively point out the cases of any unusual or
unexpected use of legislative power by the Executive.

Parliamentary control of delegated legislation is thus exercised by

i) taking the opportunity of examining the provisions providing for
delegation in a Bill, and
ii) getting them scrutinized by parliamentary committee of the
Rules, Regulations, Bye-laws and orders,
When the Bill is debated,----
i) the issue of necessity of delegation, and
ii) the contents of the provisions providing for delegation, can be
taken up.
After delegation is sanctioned in an Act, the exercise of this power by the
authority concerned should receive the attention of the House of the
Parliament. Indeed, it is this later stage of parliamentary scrutiny of the
delegated authority and the rules as framed in its exercise that is more
important. In a formal sense, this is sought to be provided by making it
necessary that the rules, etc., shall be laid on the Table of the House. The
members are informed of such laying in the daily agenda of the House. The
advantage of this procedure is that members of both the Houses have such
chances as parliamentary procedure –

i) the modification or the repeal of the enactment under which

obnoxious rules and orders are made, or
ii) revoking rules and orders themselves.

The matter may be discussed in the House during the debates or on special
motions.
The provisions for laying the rule, etc., are being made now practically
in every Act which contains a rule making provision. Such provisions are
enacted in the following form: -

(1) The Government may by notification in the official Gazette,

make rules for carrying out all or any of the purposes of this Act.

(2) Every rule made under this section shall be laid, as soon as may
be, after it is made, before each House of Parliament while it is in session for
a total period of fourteen days which may be comprised in one session or in
the successive session immediately following, both Houses agree in making
any modification in the Rule or in the annulment of the rule. The rule
thereafter have effect only in such modified form or shall stand annulled, as
the case may be, so however that any such modification or annulment shall

Module – 1 40
be without prejudice to the validity of anything previously done under that
rule."
If the Parliamentary control is not effective it becomes necessary to
provide for certain procedural safeguards, which go to make the delegated
legislation ascertainable and accessible.

Control of delegated legislation by procedure---- The following

requirements are made necessary for the exercise of the delegated authority
under different statutes so that procedural safeguards are ensured.

i) The Doctrine of ultra vires---- The chief instrument in the

hands of the judiciary to control delegated legislation is the
"Doctrine of ultra vires."
The doctrine of ultra vires may apply with regard to-
i) procedural provision; and
ii) substantive provisions.
i) Procedural defects The Acts of Parliament delegating legislative
powers to other bodies or authorities often provide certain procedural
requirements to be complied with by such authorities while making rules and
regulations, etc. These formalities may consist of consultation with interested
bodies, publication of draft rules and regulations, hearing of objections,
considerations of representations etc. If these formal requirements are
mandatory in nature and are disregarded by the said authorities then the rules
etc. so made by these authorities would be invalidated by the Judiciary. In
short subordinate legislation in contravention of mandatory procedural
requirements would be invalidated by the court as being ultra vires the parent
statute. Provision in the parent Statute for consulting the interested parties
likely to be affected, may, in such cases, avoid all these inconveniences and
the Railway authorities may not enact such rule after they consult these
interests. A simple provision regarding consultation thus assumes importance.
On the other hand, if the procedural requirements were merely of directory
nature, then a disregard thereof would not affect the validity of subordinate
legislation.

The fact that procedural requirements have far reaching effects, may
be made clear by just one example. Suppose the Railway authorities want to
relieve pressure of work of unloading goods during daytime at a station amidst
a big and brisk business center. The public wants a reduction in the traffic
jams due to heavy traffic because of unloading. The traffic authorities and
Railway authorities decide to tackle the problem effectively by making the rule
that the unloading be done during late hours of night. The railway authorities
make an order to this effect, without consulting interested bodies. Such rule
might cause many hardships e.g. –

i) The conditions of labour are such that unloading of goods during

the night would adversely affect the profit margin as the workers would charge
more if they work in night shifts.

Module – 1 41
 ii) It may not be without risk to carry money from one place to
another during late hours of night. If safety measures are employed, that in
addition to the element of a greater risk, expenses would increase, adversely
affecting the margin of profits.
iii) The banking facilities may not be available freely during night.
iv) Additional staff may be necessary in various concerns for night
duty.
v) This business are loading and unloading during night may cause
inconvenience and disturbance in the locality.
Now infect of these difficulties another alternative which appears to be
desirable is better supervision of unloading and better regulation of traffic by
posting more police officers and stricter enforcement of traffic laws.
Provisions in the parent statute for consulting the interested parties
likely to be affected may, in such cases, avoid all these inconveniences, and
the Railway authorities may not act such a rule after they consult these
interests. A simple provision regarding consultation thus assumes importance.

The question of the effectiveness of the application of the doctrine of ultra

vires, so far as procedure is concerned, would largely depend upon the words
used in the particular statue. If the words are specific and clearly indicate the
bodies to be consulted, then it would be possible to show noncompliance.

But in case where the minister is vested with the discretion to consult these
bodies which he considers to be representative of the interests likely to be
affected or where he is to consult such bodies, if any, it is very difficult to
prove noncompliance with the procedural requirements.

(ii) Substantive Defects In case of delegated legislation, unlike and Act of

the Parliament, the court can inquire into whether it is with in the limits laid
down by the present statute. If a piece of delegated legislation were found to
be beyond such limits, court would declare it to be ultra vires and hence
invalid. (R.V.Minister of Health, (1943), 2 ALL ER591).The administrative
authorities exercising legislative power under the authority of an Act of the
Parliament must do so in accordance with the terms and objects of such
statute. To find out whether administrative authorities have properly exercised
the powers, the court have to construe the parent statute so as to find out the
intention of the legislature. The existence and extent of the powers of
administrative authorities is to be affixed in the light of the provisions of the
parent Act.

Mandatory or directory procedural provision The question whether particular

procedural requirements are mandatory or directory must be examined with
care. In case the statute provided for the effect of noncompliance of such
requirements, then it is to be followed by the courts without difficulty. But
uncertainty creeps in where the statute is silent on the point and decision is to
be made by the judiciary. The courts is determining whether the provisions to
this effect in a particular Statute are mandatory or directory are guided by

Module – 1 42
various factors. They must take into consideration the whole scheme of
legislation and particularly evaluate the position of such provisions in their
relation with the object of legislation. The nature of the subject matter to be
regulated, the object of legislation, and the provisions as placed in the body of
the Act must all be considered carefully, so as to find out as to what was the
intention of the legislature. Much would depend upon the terms and scheme
of a particular legislation, and hence broad generalizations in this matter are
out of place.

Judicial control over delegated legislature Judicial control over delegated

legislature can be exercised at the following two levels :-

1) Delegation may be challenged as unconstitutional; or

2) That the Statutory power has been improperly exercised.

The delegation can be challenged in the courts of law as being

unconstitutional, excessive or arbitrary.

The scope of permissible delegation is fairly wide. Within the wide

limits. Delegation is sustained it does not otherwise, infringe the provisions of
the Constitution. The limitations imposed by the application of the rule of ultra
vires are quite clear. If the Act of the Legislature under which power is
delegated, is ultra vires, the power of the legislature in the delegation can
never be good. No delegated legislation can be inconsistent with the
provisions of the Fundamental Rights. If the Act violates any Fundamental
Rights the rules, regulations and bye-laws framed there under cannot be
better.
Where the Act is good, still the rules and regulations may contravene
any Fundamental Right and have to be struck down.
The validity of the rules may be assailed as the stage in two ways :-
i) That they run counter to the provisions of the Act; and
ii) That they have been made in excess of the authority delegated
by the Legislature.
The method under these sub-heads for the application of the rule of ultra vires
is described as the method of substantive ultra vires. Here the substance of
rules and regulations is gone into and not the procedural requirements of the
rule making that may be prescribed in the statute. The latter is looked into
under the procedural ultra vires rule.

Power of Parliament to repeal law Under the provision to clause (2) of Article
254, Parliament can enact at any time any law with respect to the same
matter including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State,

Ordinarily, the Parliament would not have the power to repeal a law
passed by the State Legislature even though it is a law with respect to one of
the matters enumerated in the Concurrent List. Section 107 of the
Government of India Act, 1935 did not contain any such power. Art. 254 (2) of
the Constitution of India is in substance a reproduction of section 107 of the

Module – 1 43
1935 Act, the concluding portion whereof being incorporated in a proviso with
further additions.

Now, by the proviso to Art. 254 (2), the Indian Constitution has
enlarged the powers of Parliament and, under that proviso, Parliament can do
what the Central Legislature could not do under section 107 of the
Government of India Act, and can enact a law adding to, amending, varying or
repealing a law of the State when it relates to a matter mentioned in the
concurrent List. Therefore the Parliament can, acting under the proviso to Art.
254 (2) repeal a State Law.

While the proviso does confer on Parliament a power to repeal a law passed
by the State Legislature, this power is subject to certain limitations. It is limited
to enacting a law with respect to the same matter adding to, amending,
varying or repealing a law so made by the State Legislature. The law referred
to here is the law mentioned in the body of Art. 254 (2), It is a law made by the
State Legislature with reference to a matter in the Concurrent List containing
provisions repugnant to an earlier law made by Parliament and with the
consent to an earlier law made by Parliament and with the consent of the
President. It is only such a law that can be altered, amended, repealed under
the proviso.

The power of repeal conferred by the proviso can be exercised by

Parliament alone and cannot be delegated to an executive authority.
The repeal of a statute means that the repealed statute must be
regarded as if it had never been on the statute book. It is wiped out from the
statute book.
In the case of Delhi Laws Act, 1951 S.C.R. 747, it was held that to
repeal or abrogate an existing law is the exercise of an essential legislative
power.
Parliament, being supreme, can certainly make a law abrogating or
repealing by implication provisions of any preexisting law and no exception
can be taken on the ground of excessive delegation to the Act of the
Parliament itself.

(a) Limits of permissible delegation When a legislature is given plenary

power to legislate on a particular subject, there must also be an implied power
to make laws incidental to the exercise of such power. It is a fundamental
principle of constitutional law that everything necessary to the exercise of a
power is included in the grant of the power. A legislature cannot certainly strip
itself of its essential functions and vest the same on an extraneous authority.
The primary duty of law making has to be discharged by the legislature itself
but delegation may be reported to as a subsidiary or ancillary measure.
(Edward Mills Co. Ltd. v. State of Ajmer, (1955) 1. S.C.R. 735)

Mahajan C.J. in Hari Shankar Bagla v. State of Madya Pradesh, A.I.R. 1954
S.C. 555 : (1955) 1.S.C.R. 380 at p. 388 observed :

"The Legislature cannot delegate its functions of laying down legislative policy
in respect of a measure and its formulation as a rule of conduct. The

Module – 1 44
legislature must declare the policy of the law and the legal principles which
are to control and given cases and must provide a standard to guide the
officials of the body in power to execute the law".

Therefore the extent to which delegation is permissible is well settled. The

legislature cannot delegate its essential legislative policy and principle and
must afford guidance for carrying out the said policy before it delegates its
delegates its subsidiary powers in that behalf. (Vasant lal Maganbhai
Sanjanwala v. State of Bombay, A.I.R. 1961 S.C. 4)

The guidance may be sufficient if the nature of things to be done and the
purpose for which it is to be done are clearly indicated. The case of Hari
Shankar Bagla v. State of Madhya Pradesh, A.I.R. 1954 S.C. 465: (1955) 1
S.C.R. 380 is an instance of such legislation.
The policy and purpose may be pointed out in the section conferring the
powers and may even be indicated in the preamble or else where in the Act.

(b) Excessive delegation as a ground for invalidity of statute In dealing with

the challenge the vires of any State on the ground of Excessive delegation it
is necessary to enquire whether - The impugned delegation involves the
delegation of an essential legislative functions or power, and In Vasant
lals case (A.I.R. 1961 S.C. 4). Subba Rao, J. observed as follows;

"The constitution confers a power and imposes a duty on the legislature to

make laws. The essential legislative function is the determination of the
legislative policy and its formulation as a rule of conduct. Obviously it cannot
abdicate its functions in favour of another.

But, in view of the multifarious activities of a welfare State, it (the legislature)

cannot presumably work out all the details to sit the varying aspects of
complex situations. It must necessarily delegate the working out of details to
the executive or any other agency. But there is a danger inherent in such a
process of delegation. An overburdened legislature or one controlled by a
powerful executive may unduly overstep the limits of delegation. It may-

a) not lay down any policy at all;

b) declare its policy in vague and general terms;
c) not set down any standard for the guidance of the executive;
d) confer and arbitrary power to the executive on change or
modified the policy laid down by it with out reserving for itself any control over
subordinate legislation.

The self-effacement of legislative power in favour of another agency either in

whole or in part is beyond the permissible limits of delegation.
It is for a Court to hold on a fair, generous and liberal construction of on
impugned statute whether the legislature exceeded such limits.

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