ENABLING STATUTE AND DELEGATED LEGISLATION: A JUDICIAL

ANALYSIS

-Shivani Khareedi, PRN: 17010324129, Division D, Tutorial III

INTRODUCTION

Separation of powers in India has led to the formation of branches of government as

legislative, executive and judiciary. The judiciary is bestowed with the duty of interpreting
the statutes to render justice as the primary function. The court interprets the statutes and
gives meaning to each and every word in the Act. The purpose of doing so is to understand
the intention of the legislature 1. The legal maxim of “A Verbis legis non est recedendum”
meaning “from the words of law, there must be no departure” 2. This is one of the principles
followed while interpretation. The main aim of interpretation is to understand the meaning of
such legislation, whether such meaning is expressly or impliedly in the language used in such
Act. Interpretation of statutes is necessary in order to understand the true meaning of the law
that the law-makers intended to convey. If such interpretation is not done properly, the true
essence of the law cannot be extracted, which would lead to ambiguity in the process of
administration of justice.

Statutes, the written law passed by the legislation on state or federal level, is classified on the
basis of duration, method and object of such statute. On the basis of duration, it is classified
into 2 types: temporary statutes and permanent statutes. On the basis of method, it is
classified into 2 types: mandatory and directory statutes. On the basis of object, it is classified
into various types, among which few are as follows: declaratory statute, codifying statute,
penal statute, disabling statute and enabling statute. In this particular research, the focus is
upon enabling statutes and its interpretation.

The enabling statute is a statute that “enlarges the common law or it makes something lawful
which is otherwise unlawful”. Such acts concede or stretch out power to carry on the
technique of the demonstration and these guidelines can accommodate a few issues sans the
biased assessment of the current arrangements. Enabling statutes creates, demarcates its
purpose and also gives powers to agency. Such acts, sometimes, give power to another
branch for purpose of carrying out its functions.
1
Mukund Sarda, Important General Rules of Interpretation: A Study, SSRN JOURNAL (2016),
https://www.ssrn.com/abstract=2758062 (last visited Aug 9, 2020).
2
Anurag Deep, INTERPRETATION OF STATUTES 52.
Delegated legislation, also known as secondary legislation, is a legislation that comes into
existence by means of a body, other than from the Parliament. In other words, the parliament
is not the branch of government that formulates the delegated legislation. An already existing
statute gives powers to another body to come up with a law. Such an existing law, delegates
its legislation-making power on another body or individual who further acts on the power
bestowed upon him. The legislation delegating power to another body or individual is known
as enabling act. Such a legislation formulated by the delegated legislation must be made in
accordance with the enabling Act. Laws made in contrast with the enabling act come become
ultra vires and this may be of two kinds: substantive ultra vires and procedural ultra vires.
These two kinds of inconsistencies in the law made by the delegated legislation will be
discussed in detail in the further course of this research.

This research will focus upon the laws formulated by the delegated legislation in relation to
the enabling statute and how if such laws made by the delegated legislation is not in
accordance with the enabling statute, affects the functioning of such a system. It also talks
about the interpretation of enabling statute to further understand its scope and meaning for a
better delegation of power to make laws. The study will not deal with sub-delegation. This
analysis will be majorly done with the help of case laws.

RESEARCH QUESTION

This research deals with interpretation of enabling statutes. To thoroughly understand this
concept, the author would like to throw light upon the concept of delegated legislation and its
effects on the functioning or validity and enforceability of such laws made by the delegated
legislation. To understand such aftermath of the laws made by the delegated legislation, the
author would like to address the following problem through the research at hand:

To decrease the burden of legislation, the concept of delegated legislation is adopted. But
what if the legislation made by the delegated legislative body is ultra vires to the enabling
statute or common law, will the judiciary or the crown abide by the general law or presume
against that general law by following the law made by the delegated legislative body?

RESEARCH PROBLEM

The research methodology opted for this study is doctrinal and qualitative. The author admits
that it was very difficult to explore the research topic and to be straight on the objectivity of
the topic. The data for the present study has been collected from secondary sources which
include journals, articles and books on the topic at hand. Information has also been accessed
from online sources. In this particular scenario, the method of research adopted by the author
has helped to collect and present a unique case.

The present research is essentially library-based project as it seeks to critically analyse the
concept of enabling statutes with the help of the available secondary sources.

ENABLING STATUTE

The democracy enables a nation to have three pillars of governance: legislature, executive
and judiciary. Powers are divided among these three with regard to handling affairs of the
country. The legislature makes laws for the country. The judiciary’s primary function is to
interpret statutes to render justice. One of the duties of the court is to interpret Acts and give
meaning to each and every word in such Act. The maxim, “A verbis legis non est
recedendum” means one must not vary the words of the statute while interpreting it 3. The
most common rule of interpreting statutes is that the words of the statute must not vary and
must be interpreted and understood by reading and construing every single part together and
in a harmonious manner. In the case of Santi Swarup Sarkar V. Pradip Kumar Sarkar and
others4 and in the case of B. Banerjee V. Smt. Anita Pan5, the hon’ble court held that
wherever a statute can be interpreted in two ways, one which validates such statute must be
taken into consideration. Interpretation of the law must not be arbitrary. Based on the
objective of the statute, duration and method the laws are classified for ease of understanding.
In this context, only the relevant part of the classification, i.e., classification on the basis of
objective will be discussed. Classification with reference to objective includes various types
of statutes such as consolidating statute, codifying statute, enabling statute, disabling statute,
explanatory statute and various others. The author will discuss only enabling statute as it is
relevant to the topic at hand.

Enabling statute is such that it broadens the law wherever it is narrow. It defines the scope of
power and also the subjects or areas coming under the jurisdiction of such laws 6. Such
enabling Acts also make something lawful which would otherwise be unlawful 7. Such acts
extends or grants fresh authority to carry forward the objective of this act. The enabling act
3
Enabling Statute: Rules of Interpretation, , http://www.legalservicesindia.com/article/1545/Enabling-Statute:-
Rules-of-Interpretation.html .
4
AIR 1997 Cal 197
5
AIR 1975 SC 1146
6
Legislative Agencies, , JUSTIA (2018), https://www.justia.com/administrative-law/legislative-agencies/ .
7
Nikieta Aggarwal, “Enabling Statute”: A Complete Report with 5 Case Laws, IPLEADERS (2017),
https://blog.ipleaders.in/enabling-statute-5-case-laws/ .
empowers and implicates to perform crucial acts in order to fulfil the objective of the
legislation8. If the enabling act lays down conditions for the benefit of the public at large,
such conditions must be complied with as it is crucial. Such enabling statutes grant authority
or power to formulate rules for the purpose of carrying out and fulfilling the objectives of the
enabling act. This is done by creating agency and defining the powers, authority, limitations
and jurisdiction of such agency. Statutes may comprise of certain words that indicate that it is
an enabling act and such words are to be elucidated as compulsory when and where the
objective of such act is to enforce a legal right. For example, the acts that legalise public
nuisance would be considered as enabling acts. Where the legislature expressly lays down the
method of dealing with particular matters, it is understood that any other mode of dealing
with such matter is excluded save as otherwise mentioned in the legislation. The Latin
maxim, “expressio unius est exclusio alterius” meaning the express mention of things of
particular class means the implied exclusion of others9. When the enabling act confers powers
upon another authority other than the legislature to make laws, it gives such authority
discretionary powers to fulfil the objective of such laws. Such discretionary powers bestows a
duty upon the authority to fulfil or achieve the objective of the act and hence such
discretionary power is absolute, such authority may or may not use such power based on how
the objective of the act is to be achieved 10. The legislature at times uses permissive words in
order to confer discretionary powers upon the courts to define the circumstances when such
powers are to be used as laid down in the legislature 11. Such enabling acts essentially fulfil
the objective of their act by conferring powers upon other authorities. When this happens, the
enabling act is also recognised as a parent act as the power is delegated from the parent act to
the subordinate act.

DELEGATED LEGISLATION

Time crunch often disrupts the efficiency of functioning of the legislature as it cannot
legislate every single detail. To ensure that such legislation is done, the legislature often
delegates its power on an authority of a lower rank or to an authority that is subordinate. This
is possible because of the existence of enabling acts as discussed in the previous section.
Delegating essentially means conferring powers upon an authority to act on behalf of the

8
Bidi, Bidi leaves and Tobacco Merchants’ Association, Gondia and others V. State of Bombay and others, AIR
1962 SC 486
9
Expressio Unius Est Exclusio Alterius Legal Definition | Merriam-Webster Law Dictionary, ,
https://www.merriam-webster.com/legal/expressio%20unius%20est%20exclusio%20alterius .
10
Rani Drig Raj Kuer V. Raja Amar Krishna Narain Singh, AIR 1960 SC 444
11
Re Neath and Brecon Ry. (1874) 9 Ch. App 263
person conferring such power or to act as an agent of such person. The relationship between
an enabling act and delegated legislation can be described as a relationship of agency where
the delegated legislation is the agent of the enabling act, i.e., performing on behalf of the
enabling act. The primary function of the legislature is to formulate laws. Delegated
legislation is when a law or an act is formulated by an authority other than the legislature.
Before the enactment of Constitution of India when the Privy Council was the high appellate
court in the country, in the case of Her Majesty the Queen V. Burah12, with regard to the
question of feasibility of delegation of legislative power in respect of its nature and extent
was discussed and it was held that Councils of Governor-General was the supreme legislature
and has a lot of powers and that they are entitled to transfer such certain powers to provincial
executors13. This was the first case when the question of validity of legislative powers was
raised. Although there is no express mention about the concept of delegated legislation, by
interpreting Art. 312 of the Indian Constitution it can be understood. It provides for the
formation of an All-India Services and gives it power to regulate recruitment and conditions
of service to any such service. The power to delegate is a constituent element of the
legislature. In these developing modern times, tackling socio-economic problems is getting
difficult14. By using the power to delegate, the legislative can confer law-making powers
upon the various other authorities of the country who are competent and give them powers to
formulate laws. This can be beneficial for the smooth functioning of the country and better
discipline and respect towards the law. In the concept of delegated legislation, the concept of
conditional legislation is also to be looked into. This is when the legislation is complete in all
its sense but still, discretion is given to certain outside authorities to take steps with respect to
the law as mentioned.

VALIDITY OR ENFORCABILITY OF LAW MADE BY DELEGATED

LEGISLATION

For the validity of the delegated legislative powers to be valid, certain conditions should be
complied with as follows15:

12
ILR (1879) 4 Cal 172
13
Diva Rai, Delegated Legislation in India : Analysis and Overview, IPLEADERS (2019),
https://blog.ipleaders.in/delegated-legislation-in-india/ .
14
Subordinate or Delegated Lesislation.pdf, ,
http://14.139.60.114:8080/jspui/bitstream/123456789/714/20/Subordinate%20or%20Delegated
%20Lesislation.pdf .
15
P. M. Bakshi, SUBORDINATE LEGISLATION: SCRUTINISING THE VALIDITY, 36 JOURNAL OF THE
INDIAN LAW INSTITUTE 1–7 (1994).
 1. Enabling or parent act must be valid- the parent act can be held as invalid if it violates
the fundamental rights as conferred by the Constitution of India or if it violates any
other Constitutional provisions.
2. Clause that enables the delegation in the enabling act must be valid- decided on the
basis of provisions of the Constitution aided by judicial decisions, the validity of
delegation clause is considered by checking if the essential legislative function is
being delegated or not. The essential function of legislature of making legislative
policies cannot be delegated, the details thereof can be delegated.
3. The statute made by the delegated authority must conform with delegation clause of
the parent act in substance, procedure and form- here, the concept of substantive and
procedural ultra vires comes into picture. A law is said to be ultra vires when it is
performed beyond the limit or powers conferred upon it 16. This will be discussed in
the further parts of the paper.
4. The statute formulated must not violate or change the norms laid down by the judicial
decisions which are of general nature such as jurisdiction of courts or retrospective
effects of statutes
5. The statute formulated by the delegated authority must not be in violation of the
fundamental rights as provided in the Constitution of India17.

While looking into the matter of delegated legislation, the concept of ultra vires definitely
comes into picture. Here, with regard to the delegated legislation, there is possibility of two
kinds of ultra vires:

Substantive ultra vires: this happens when the delegated authority goes beyond the scope of
the power of the parent act18. In the case of Sales Tax Officer V. K.I. Abraham19, the Apex
Court observed that the legislation authorising the prescription of certain particulars was held
not to authorise fixing a time limit for the form 20. The courts further do not allow the
delegated authority to give a retrospective applicability of its rules unless it is expressly
conveyed by the parent act 21. In the case of Chintaman Rao V. State of MP 22, the facts were
such that the enabling act conferred powers upon the Collector to formulate regulations for

16
Enabling Statute: Rules of Interpretation, supra note 3.
17
Narendra Kumar V. Union of India, AIR 1960 SC 430
18
Chapter-IV (110-161).pdf, , http://14.139.60.114:8080/jspui/bitstream/123456789/15518/10/Chapter-IV
%20%28110-161%29.pdf.
19
AIR 1967 SC 1823
20
Bakshi, supra note 15.
21
General S. Shivdev Singh V. State of Punjab, ILR (1959) 2 P&H 1445
22
AIR 1951 SC 118
the purpose of regulating or prohibiting bidi manufacturing during the agricultural season.
The Collector completely prohibited bidi manufacturing with the intention to diverting the
labour force towards the agricultural sector. The Apex Court struck down this rule as it was
violative of the fundamental right of carrying on an occupation, as guaranteed by Indian
Constitution under Article 19(1)(g), by means of unreasonable restriction. An important issue
came in front of the Apex Court that if the enabling provisions of a statute are valid, the rules
made under such provisions cannot be considered as unconstitutional; but the Apex Court
referred to the phrase “in accordance with the provisions of the articles of the Constitution”
and observed that such words are to be read by implication on each and every provision of
each and every statute formulated by the Parliament on any given day after the enactment of
the Constitution of India23. Another important case is the In Re Delhi Laws Act24 case where
the central government was given the powers by the enabling act to repeal the pre-existing
law was declared to be ultra vires by the Court of law.

Procedural ultra vires: it is said that an act is procedural ultra vires when it fails to follow the
procedure laid down by the enabling act. The Federal Court in 1945, in the case of Biswanath
Khemka V. King Emperor25, held that non-compliance with the rules laid in the Government
of India Act, 1935 would not make the appointment made otherwise regularly and validly,
ineffective or inoperative as the rule laid in the Act is directory. This same was followed in
the cases of T.B. Ibrahim V. Regional Transport Authority, Tanjore 26 and in the case of State
of U.P V. Manbodhan Lal Srivastava 27. In the case of Harla V. State of Rajasthan28, the
Supreme Court strongly expressed that the statutory requirement for the publication of
delegated legislation and the rules formed is mandatory in nature and if not done so, it would
be a grave violation of the principles of natural justice. With regard to the failure to lay as a
ground for procedural ultra vires, the Supreme Court in the case of In Re Kerala Education
Bill29, where the Act had a laying clause and the central government changed the laying
clause upon consultation of Committee on Subordinate Legislation, in such a way that the
rules were to be laid before the Parliament and would be operative ab initio upon such laying,

23
Narendra Kumar V. Union of India, AIR 1960 SC 430
24
AIR 1951 SC 332
25
1945 SCC OnLine FC 7
26
AIR 1953 SC 79
27
AIR 1957 SC 912
28
AIR 1951 SC 467
29
1959 S.C.J 321
observed through obiter dicta that certain rules when they are required to be laid before the
Parliament would not be effective until it is laid30.

CONCLUSION

The enabling statute plays a major role in the process of interpreting statutes. The colossal
power held by these kinds of statutes help to reduce the burden of the legislation to a certain
extent without tampering the main function of the legislature. Such enabling acts which
facilitate the process of delegating legislation, enhances the functioning of the democracy.
The interpretation of the enabling statute helps us to understand how the delegated legislation
has effect on the public at large and how the validity of the statute formulated by the
delegated authority can be assessed. Such enabling statutes play a major role in the
functioning of the other two pillars of democracy, the executive and the judiciary and help to
utilise the law to its maximum extent with great efficiency. Through the above discussion, the
author has pointed out the importance of careful interpretation of the enabling statute to
extract its full potential, by looking at this through the eyes of the judiciary. With the help of
various judicial pronouncement, the author has established that the conformity of the laws
made by the delegated authority with the parent act is an essential part of the validity of such
act formulated. The author has also discussed in detail how the doctrine of ultra vires comes
into the picture with the help of various case laws.

SUGGESTIONS

The concept of enabling statute is not properly defined or talked about in any legislation. It is
a little ambiguous and subject to interpretation. All laws are subject to interpretation but
when a concept so powerful such as enabling statute that allows one to delegate and make
laws which would affect the public at large, there needs to be some kind of codification in
order to eliminate the vagueness. To achieve more clarity on the concept, the author would
like to suggest the codification of the concept with regard to the functioning of such enabling
statute, to what extent such statute can give powers to other authorities, holding the delegated
authority accountable in case of occurrence of a problem with regard to the law formulated
by the delegated authority and to what extent is the discretionary power exercisable. The
tremendous power of enabling statute can be used to delegate the law making to the
specialists or experts in that field to ensure that the law formulated is applicable and is

30
038_Delegated Legislation-Undue Delegation under All India Service Rules, 1955 (468-473).pdf, ,
http://14.139.60.114:8080/jspui/bitstream/123456789/14981/1/038_Delegated%20Legislation-Undue
%20Delegation%20under%20All%20India%20Service%20Rules,%201955%20(468-473).pdf .
practically feasible to ensure better respect towards the law, which would also be a step
forward in a stronger legislation for the country.

REFERENCES

Cases

1945 SCC OnLine FC 7.............................................................................................................7

1959 S.C.J 321...........................................................................................................................7
AIR 1951 SC 118.......................................................................................................................6
AIR 1951 SC 332.......................................................................................................................7
AIR 1951 SC 467.......................................................................................................................7
AIR 1953 SC 79.........................................................................................................................7
AIR 1957 SC 912.......................................................................................................................7
AIR 1967 SC 1823.....................................................................................................................6
AIR 1975 SC 1146.....................................................................................................................3
AIR 1997 Cal 197......................................................................................................................3
Bidi, Bidi leaves and Tobacco Merchants’ Association, Gondia and others V. State of
Bombay and others, AIR 1962 SC 486...................................................................................4
General S. Shivdev Singh V. State of Punjab, ILR (1959) 2 P&H 1445...................................6
ILR (1879) 4 Cal 172.................................................................................................................5
Narendra Kumar V. Union of India, AIR 1960 SC 430.........................................................6, 7
Rani Drig Raj Kuer V. Raja Amar Krishna Narain Singh, AIR 1960 SC 444..........................4
Re Neath and Brecon Ry. (1874) 9 Ch. App 263.......................................................................4

Other Authorities

Expressio Unius Est Exclusio Alterius Legal Definition | Merriam-Webster Law Dictionary, ,
https://www.merriam-webster.com/legal/expressio%20unius%20est%20exclusio
%20alterius ............................................................................................................................4

Rules

Anurag Deep, INTERPRETATION OF STATUTES 52..........................................................1

Articles

038_Delegated Legislation-Undue Delegation under All India Service Rules, 1955 (468-
473).pdf, , http://14.139.60.114:8080/jspui/bitstream/123456789/14981/1/038_Delegated
 %20Legislation-Undue%20Delegation%20under%20All%20India%20Service%20Rules,
%201955%20(468-473).pdf ..................................................................................................8
Chapter-IV (110-161).pdf, ,
http://14.139.60.114:8080/jspui/bitstream/123456789/15518/10/Chapter-IV%20%28110-
161%29.pdf.............................................................................................................................6
Diva Rai, Delegated Legislation in India : Analysis and Overview, IPLEADERS (2019),
https://blog.ipleaders.in/delegated-legislation-in-india/ ........................................................5
Enabling Statute: Rules of Interpretation, ,
http://www.legalservicesindia.com/article/1545/Enabling-Statute:-Rules-of-
Interpretation.html .................................................................................................................3
Legislative Agencies, , JUSTIA (2018), https://www.justia.com/administrative-law/legislative-
agencies/ .................................................................................................................................3
Mukund Sarda, Important General Rules of Interpretation: A Study, SSRN Journal (2016),
https://www.ssrn.com/abstract=2758062................................................................................1
Nikieta Aggarwal, “Enabling Statute”: A Complete Report with 5 Case Laws, IPLEADERS
(2017), https://blog.ipleaders.in/enabling-statute-5-case-laws/ .............................................3
P. M. Bakshi, SUBORDINATE LEGISLATION: SCRUTINISING THE VALIDITY, 36
JOURNAL OF THE INDIAN LAW INSTITUTE 1–7 (1994)............................................................5
Subordinate or Delegated Lesislation.pdf, ,
http://14.139.60.114:8080/jspui/bitstream/123456789/714/20/Subordinate%20or
%20Delegated%20Lesislation.pdf .........................................................................................5