Interpretation of Delegated Legislation

Most law that governs daily life is not found in Acts but in rules, regulations, notifications and orders made under them. This delegated or subordinate legislation is indispensable, but it is valid only within the limits the parent Act and the Constitution allow, and it must be read with the Act that authorises it. This note sets out the limits on delegation, the grounds on which subordinate legislation can be challenged, the laying requirement, and the rules for its interpretation.

1. Meaning and Need

• Meaning. Law made by an authority other than the legislature, under power conferred by a statute: rules, regulations, bye-laws, notifications, schemes and orders.
• Why. The legislature lacks time and technical expertise for detail; delegation permits flexibility, quick response and adjustment to local conditions.
• Conditional legislation. Distinct from delegation: the legislature makes the law but leaves it to an authority to decide when or where it applies, as upheld in Queen v Burah (1878)

2. Limits on Delegation

Figure 1: Five limits on delegated legislation

• Essential function. In In re Delhi Laws Act (1951) the Supreme Court held that the legislature may delegate power to make subordinate rules but cannot delegate its essential legislative function: determining the legislative policy and laying it down as a binding rule of conduct.
• Excessive delegation. In Hamdard Dawakhana v Union of India (1960) a delegation that left the delegate uncanalised power without policy or standards was held void.
• Within the parent Act. Subordinate legislation must be intra vires the parent Act and cannot amend or override it.
• Sub-delegation. A delegate cannot further delegate unless the statute authorises it, applying delegatus non potest delegare (Topic 16)

3. Grounds of Challenge

Figure 2: When subordinate legislation is invalid

In Indian Express Newspapers v Union of India (1985) the Supreme Court held that subordinate legislation may be challenged on any ground on which plenary legislation is questioned, and additionally on the ground that it does not conform to the statute under which it is made, or that it is manifestly arbitrary. In State of Tamil Nadu v P. Krishnamurthy (2006) the Court summarised the grounds: lack of legislative competence, violation of fundamental rights or other constitutional provisions, failure to conform to the parent statute, repugnancy to the laws of the land, and manifest arbitrariness or unreasonableness. It also held that subordinate legislation carries a presumption of validity.

4. Laying Before the Legislature

• The requirement. Many statutes require rules to be laid before the legislature, which may modify or annul them.
• Atlas Cycle Industries (1979). The Supreme Court held a requirement that an order 'shall be laid' before Parliament to be directory, so failure to lay did not invalidate it, since no consequence of non-laying was provided.
• Laying does not cure. Laying a rule before the legislature does not make an ultra vires rule valid.

5. Rules for Interpretation

• Read with the Act. Rules are construed in harmony with the parent Act and its object; where possible, a rule is read so as to keep it intra vires.
• Act prevails. If a rule conflicts with the Act, the Act prevails and the rule is invalid to that extent.
• Same canons. The ordinary rules of interpretation, literal, harmonious and purposive, apply to subordinate legislation.
• Rules and the Act. Validly made rules have the force of law, but they cannot be used to enlarge the meaning of the parent Act.
• Strict construction. Rules that impose penalties or taxes, or take away rights, are construed strictly (Topics 9, 10)

6. Frequently Asked Questions

What cannot be delegated by the legislature?

The essential legislative function, which consists in determining the legislative policy and laying it down as a binding rule of conduct. The Supreme Court so held in In re Delhi Laws Act (1951). Delegation that confers uncanalised power without any policy or standard is excessive and void, as in Hamdard Dawakhana v Union of India (1960).

On what grounds can subordinate legislation be challenged?

On any ground available against plenary legislation, such as lack of competence or violation of fundamental rights, and additionally on the ground that it does not conform to the parent statute or is manifestly arbitrary. The Supreme Court summarised these grounds in Indian Express Newspapers (1985) and State of Tamil Nadu v P. Krishnamurthy (2006).

Can a rule override the Act under which it is made?

No. Subordinate legislation derives its authority from the parent Act and must conform to it. Where a rule conflicts with the Act, the Act prevails and the rule is invalid to that extent. Courts read rules, where possible, so as to keep them within the Act, but cannot use them to enlarge or alter the Act's meaning.

7. Related Topics

• Topic 24: Statutes Conferring Powers and Imposing Duties. How statutory powers are exercised.
• Topic 16: Other Maxims of Interpretation. Delegatus non potest delegare.