Report No. 261

B. Question 2.

2.5.1 This interpretation is supported by a leading treatise, which explains how to construe delegated rule making authority:

"A normal feature of enabling Acts is first to grant the power to make rules etc., in general terms, e.g., 'to carry out the purposes of this Act' and then to say that 'in particular and without prejudice to the generality of the foregoing provisions', such rules etc., may provide for a number of enumerated matters. If power is conferred to make subordinate legislation in general terms, the particularization of topics is construed as merely illustrative and does not limit the scope of the general power."22

22 Justice G.P. Singh, Principles of Statutory Interpretation 1008-09 (12th ed. 2010) (and cases cited therein).

2.5.2 Similarly, discussing the scope of authority delegated by the Industrial Employment (Standing Orders) Act, 1946, the Supreme Court stated, "Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and section 15(2) specifies some of the matters enumerated by clauses (a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the power conferred on the appropriate Government by sub-section (1)..." Rohtak and Hissar Districts Electric Supply Co. v. U.P., (1966) 2 SCR 863.

The Court reiterated this in Afzal Ullah v. Uttar Pradesh, (1964) 4 SCR 991 where it considered the delegation of authority under the United Provinces Municipalities Act. Section 298(1) of the said Act stated that a board was empowered to make any bye-laws "consistent with this Act," while Section 298(2) dealt with bye-laws which can be made in specific situations (e.g., markets, slaughterhouses, sale of food). The Court held that:

"It is now well-settled that the specific provisions such as are contained in the several clauses of section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of powers prescribed by section 298(1)... If the powers specified by section 298(1) are very wide and they take in within their scope bye-laws like the ones with which we are concerned in the present appeal, it cannot be said that the powers enumerated under section 298(2) control the general words used by section 298(1). These latter clauses merely illustrate and do not exhaust all the powers conferred on the Board."

2.5.3 In addition, the Supreme Court has made clear that the express text of a statute is not determinative of the scope of authority it delegates, but rather the purpose (inferred from the statute's text) must also be considered. In Commissioner of Central Excise and Customs v. Venus Castings Ltd., (2000) 4 SCC 206 the Court noted that, "In holding whether a relevant rule to be ultra vires it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto."

Similarly, in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar, (1984) 4 SCC 27 the Court stated that "the question whether a particular piece of delegated legislation is in excess of the power conferred on the delegate has to be determined with reference to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment."

The Court noted that a subsidiary body has the proper authority so long as "the rules or regulations made by it have a rational nexus within the object and purpose of the Statute." (1984) 4 SCC 27; see also General Officer Commanding-in-Chief v. Subhash Chandra Yadav, (1988) 2 SCC 351 (rules "must also come within the scope and purview of the rule making power of the authority framing the rule").

The Court applied a three-pronged test to uphold the regulation in that case: (1) whether the provisions of the regulations fall within the scope and ambit of the power conferred on the delegate; (2) whether the regulations made are to any extent inconsistent with the provisions of the enabling Act; and (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution.28

28 Justice G.P. Singh, Principles of Statutory Interpretation 1012 (12th ed. 2010) (and cases cited therein).

2.5.4 For a delegation of legislative authority to be valid, the legislative policy and principle must be adequately laid down. Tata Iron and Steel Co. Ltd. v. Workmen, (1972) 2 SCC 383; see also Makhan Singh v. State of Punjab, (1964) 4 SCR 797 ("[I]f the legislature lays down its legislative policy in clear and unambiguous terms and leaves it to the delegate to execute that policy by means of making appropriate rules, then such delegation is not impermissible."). But this is not an onerous requirement-the legislative policy can be determined from the text of the statute in question.

In Makhan Singh v. State of Punjab, (1964) 4 SCR 797 ("Not only is the legislative policy broadly indicated in the preamble to the Act, but the relevant provisions of the impugned section itself give such detailed and specific guidance to the rule making authority that it would be idle to contend that the Act has delegated essentially legislative function to the rule making authority."). for example, the Supreme Court looked to both the preamble of The Defence of India Act, 1962 and the list of particular delegated powers in Section 3(2) to determine the legislative policy and uphold the general grant of rule making authority in Section 3(1).

Similarly, in D K Trivedi v. State of Gujarat, 1986 AIR SC 1323 the Court found sufficient guidelines for exercising rule making power under Section 15(1) of the Mines and Minerals (Regulation and Development) Act, 1957 by looking at the object for which the power was conferred and the illustrative matters set forth in other sections.