Delegated Legislation and Constitutional Limits: A Comparative Study of Bangladesh and India

1. Abstract 

This article examines the constitutionality and limits of delegated legislation in Bangladesh and India using a doctrinal and comparative approach. Delegated legislation allows the executive to make detailed rules, regulations, and by-laws under parent Acts, helping implement complex laws efficiently. Judicial review in both countries ensures that delegated powers stay within the enabling Act and the Constitution, addressing substantive ultra vires (exceeding authority) and procedural ultra vires (ignoring required procedures). In India, courts allow broader delegation when the enabling Act clearly sets out legislative policy and principles, as seen in S.R. Bommai v Union of India and Ajoy Kumar Banerjee v Union of India. In Bangladesh, delegated legislation is closely monitored under Article 102 of the Constitution, with courts emphasizing constitutional supremacy, protection of fundamental rights, and limits on executive discretion. The High Court Division regularly reviews rules to ensure they comply with statutory authority and procedural requirements. Both countries face contemporary challenges, including accountability gaps, expanding executive powers, and regulation of digital and emergency governance. The study finds that judicial oversight, procedural safeguards, and legislative control are essential to maintain a balance between efficient governance and democratic accountability. Properly guided delegated legislation ensures that laws are implemented effectively while respecting constitutional limits and protecting citizens’ rights.

2. Keywords

Delegated Legislation; Constitutionality; Ultra Vires; Essential Legislative Function; Judicial Review; Bangladesh; India

3. Introduction

Legislation is traditionally enacted by Parliament as the supreme law-making authority of the state. However, the demands of modern governance have necessitated a departure from this classical model, giving rise to the practice of delegated legislation, whereby legislative power is conferred upon executive or administrative bodies. Such delegation facilitates administrative flexibility, efficiency, and the application of technical expertise in areas where parliamentary law-making alone may prove inadequate. Delegated legislation also referred to as subordinate or secondary legislation—commonly takes the form of by-laws, statutory instruments, rules, regulations, and orders made pursuant to an enabling statute or parent Act. Despite its practical necessity, delegated legislation raises significant constitutional concerns. The delegation of legislative power to non-elected bodies potentially undermines core constitutional principles such as parliamentary supremacy, separation of powers, democratic accountability, and the rule of law. As Salmond observed, legislation may be either supreme or subordinate, with subordinate legislation deriving its authority solely from a superior legislative power and remaining dependent upon it for its validity and continuance. Consequently, delegated legislation must operate strictly within the limits prescribed by the parent statute and the Constitution. In common law jurisdictions such as Bangladesh and India, the Constitution does not expressly define the scope or limits of delegated legislation. Instead, constitutional control has largely evolved through judicial interpretation. Courts in both jurisdictions have developed doctrines such as the essential legislative function, prohibition of excessive delegation, and the ultra vires principle to prevent misuse, overreach, or arbitrary exercise of delegated power. In addition to judicial review, parliamentary oversight mechanisms such as laying procedures and committee scrutiny serve as important safeguards, although their effectiveness varies in practice. This article undertakes a comparative analysis of Bangladesh and India to examine how constitutional limits on delegated legislation are articulated and enforced. It argues that while both jurisdictions recognize delegated legislation as an inevitable feature of modern governance, inconsistencies in judicial standards and weak parliamentary scrutiny particularly in Bangladesh continue to pose challenges to constitutional accountability. By analysing judicial doctrines, constitutional principles, and oversight mechanisms, the article seeks to assess whether existing controls strike an appropriate balance between administrative efficiency and constitutional supremacy.

4. Literature Review

Delegated legislation allows the executive in Bangladesh and India to implement laws efficiently, handling technical and administrative details that the legislature cannot address directly. Scholars emphasize the need for clear legislative guidance and constitutional safeguards to prevent misuse. In Bangladesh, judicial review under Article 102 ensures delegated rules follow the Constitution and protect fundamental rights (Mahmudul Islam 2012). Indian case law, including Ajoy Kumar Banerjee v Union of India (1984) and S.R. Bommai v Union of India (1994), highlights the balance between legislative standards and executive flexibility. Overall, research shows that judicial oversight and procedural safeguards are key to maintaining accountability and upholding democratic principles.

5. Conceptual and Theoretical Framework 

5.1 Meaning

Delegated legislation denotes laws enacted by an authority other than the legislature, pursuant to powers granted by a statute, with legal authority within the confines of the delegated powers. Black’s Law Dictionary defines delegation as the act of entrusting authority to another to act as an agent. According to M.P. Jain, Delegated legislation refers to the exercise of legislative powers by an authority other than the legislature, derived from the legislature and constrained by the enabling Act and the Constitution. In Bangladesh, delegated legislation denotes rules, regulations, or orders issued by executive authorities under powers granted by Parliament via an enabling Act, subject to judicial scrutiny for ultra vires and constitutional validity. Similarly, the Supreme Court of India has defined delegated legislation as the exercise of legislative power by a subordinate authority pursuant to powers conferred by a statute. 

5.2 Nature of Delegated Legislation

Delegation constitutes the assignment of duties and responsibilities to third parties, whereby the delegator confers authority to act, yet remains ultimately liable for the results thereof. It acknowledges that direct oversight of every operational aspect is not requisite for the attainment of successful outcomes. The legislature sets the main policy of a law, while the executive may be given power to make detailed rules for its implementation. However, the legislature cannot transfer its core law-making function to the executive. Delegated powers must be exercised within clear legal limits, and essential legislative functions cannot be delegated. Although some discretion is allowed, such power must support the purpose of the law and cannot change or contradict its fundamental principles or structure. There are three main forms of delegated legislation: statutory instruments, by-laws, and Orders in Council. Statutory instruments are constructed by the Government departments. For example, the Parent Act permits the parliament to determine how legislation can be written and handled. They are also engaged in other Commonwealth countries other than the UK, such as Canada. The Proclamation of the Queen of Canada was brought into impact and introduced the Constitution Act 1982, which is UK is known as the Canada Act 1982. By-laws are created by the local authorities, which have to be approved by the central Government. For example, the smoking ban in public areas in London is a by-law because other local authorities can apply these regulations based on their assessment of public attitudes. Orders in Council are made by the government in an emergency; they are rafted by the concerning Government departments, approved by the Privy Council, and signed by the Queen. It is exceedingly important as it can affect many individuals. Orders in Council could have been used during the seventh of July 2005, London bombings. In Raj Narain Singh v Chairman, Patna Administration Committee, the Bihar and Orissa Act authorised the local administration to apply provisions of the Bengal Municipality Act, 1884 to Patna with necessary modifications. The government extended Section 104 but removed the provision that allowed residents to raise objections before taxes were imposed. The court held that this modification defeated the purpose of the original law and amounted to an abuse of delegated power. As it altered the fundamental policy of the Act, the notification was declared invalid and quashed.

5.3 Constitutional Theories Governing Delegation

The constitutionality of delegated legislation is grounded in several fundamental constitutional theories that seek to balance administrative efficiency with democratic legitimacy and legal accountability. Among the most significant are the doctrines of separation of powers, rule of law, legislative supremacy, and democratic accountability.

1. Separation of Power: The separation of powers doctrine mandates a clear division between the state’s primary organs—the executive, legislature, and judiciary—to protect individual liberties and prevent the concentration of authority that could lead to tyranny. One of the earliest and clearest statements of the separation of powers was given by French social commentator and political thinker Montesquieu in 1748:  ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.’
2. Rule of Law: According to Encyclopedia Britannica, the rule of law is the principle that all citizens are equal before the law and that government power must be exercised according to legal rules, preventing arbitrary action. It serves as a safeguard against despotism, authoritarianism, and totalitarianism, ensuring that even the highest authorities cannot act beyond the constraints of law. The rule of law requires that government authority be exercised according to clear, public laws applied equally to all. Delegated legislation, or secondary legislation, permits Parliament to authorize bodies such as government departments or local authorities to make detailed rules under an enabling Act, enabling efficient management of complex or technical matters. Such subordinate law remains subject to parliamentary oversight and judicial review, ensuring it remains within the powers conferred by the parent statute and conforms to constitutional principles.
3. Legislative Supremacy: Legislative supremacy is the principle that the legislature holds ultimate law-making authority within its constitutional limits, allowing elected representatives to enact laws without interference from the executive or judiciary, thereby maintaining the balance of power and supporting democratic governance. Delegation does not compromise legislative supremacy because the subordinate authorities derive their legitimacy entirely from the legislature. Parliament retains the power to amend, suspend, or revoke any delegated rules and to prescribe conditions and limits on their exercise.² The legislature may also include safeguards, such as requiring that delegated rules be laid before Parliament, subject to negative or affirmative resolution procedures, ensuring that subordinate law-making remains accountable and consistent with the policy objectives set by the legislature.
4. Democratic Accountability: Democratic Accountability is meant loosely as an aspect of the quality of democracy, deriving not so much from the electoral process and from the enjoyment of political rights but from the protection of individual rights in general, the rule of law, and the probity, openness, and performance of the public sector. To preserve democratic legitimacy, constitutional systems impose multiple safeguards. These include parliamentary scrutiny procedures, such as affirmative or negative resolution of delegated rules, public consultation requirements, and judicial review, which enables courts to invalidate rules that exceed statutory authority or violate constitutional principles.

6. Constitutional Basis of Delegated Legislation: A Comparative Overview 

6.1 Bangladesh

Article 65 of the Constitution grants the Parliament of Bangladesh the authority to make laws. Article 65(1) of the Constitution of Bangladesh designates the Parliament as the supreme legislative authority of the Republic and vests it with law-making power, while permitting Parliament to delegate limited rule-making powers to subordinate bodies through legislation. In Bangladesh, delegated legislation refers to the process by which Parliament authorizes executive authorities to formulate rules, regulations, and by-laws under an enabling statute. This mechanism allows the executive to address technical and administrative details of legislation, promoting efficiency and the use of specialized expertise. However, such powers remain subject to judicial review to ensure compliance with the parent Act and constitutional principles. Despite its practical benefits, concerns persist regarding executive overreach, particularly where broad discretionary powers are granted with limited parliamentary scrutiny. Delegated legislative power is exercised by the executive branch, including ministries and government agencies, which are authorized by Parliament to frame rules, regulations, and by-laws under enabling statutes. This system facilitates flexible and technically informed implementation of legislative policies. However, it also raises constitutional concerns regarding excessive delegation and the risk of arbitrary decision-making. These risks are addressed through judicial review by the High Court Division, which ensures that delegated instruments remain within the limits of the parent Act and conform to constitutional requirements.  The absence of an express delegation clause doesn’t automatically forbid delegation, but it’s generally presumed an agent must act personally unless custom or necessity dictates otherwise, as seen in the Contract Act, 1872, while specific statutes like the Foreigners Act, 1946, explicitly allow delegation unless prohibited, highlighting a general tension between personal duty and administrative efficiency, meaning courts look at the nature of the act and intent for implied delegation.

The Supreme Court affirmed in Bangladesh & Others vs. M/S. Eastern Beverage Industries Ltd that under Article 65(1) of the Constitution, Parliament can delegate the power to make rules, regulations, and bye-laws to other bodies. In Bangladesh vs. Kundeswari Aushadhalaya (1977), The Court established that rule-making power granted to a delegated authority cannot be used to enlarge or contradict the substantive meaning of the parent Act. All delegated laws must adhere to the fundamental rights mentioned in Part III of the Bangladesh Constitution. In Sahar Ali vs. A. R. Chowdhury (1983), demonstrated the judiciary’s power to intervene when executive action/delegated legislation infringes upon fundamental rights, particularly during challenging political times. Delegated legislation must not exceed the scope of the authority conferred by the enabling Act. If it goes beyond, it is declared ultra vires. Judicial review in Bangladesh, particularly under Article 102 of the Constitution, ensures that while the executive is empowered to make regulations for smooth administration, they cannot act arbitrarily.

6.2 India

Article 245 of the Constitution governs the territorial scope of legislative powers by providing that Parliament may legislate for the whole or any part of the country, while State Legislatures may make laws applicable to their respective states or any part thereof. Article 245(1) of the Indian Constitution provides that State Legislatures have the authority to enact laws for their respective territorial jurisdictions. However, such legislatures cannot exercise extra-territorial legislative power unless a real and substantial nexus exists between the State and the subject matter of the legislation, even if the object is located outside the State’s physical boundaries. Article 245 (2) of the Indian Constitution states that no law passed by Parliament is invalid because it has extraterritorial application. From a territorial standpoint, Parliament may enact laws that apply to all or part of India. Legislation enacted by Parliament is not void just because it has extraterritorial application. Legislative powers are distributed across three lists in the Seventh Schedule under Article 246:

1. Union List – Parliament has exclusive authority to legislate on matters of national importance, and states cannot make laws on these subjects.
2. State List – States have exclusive power to legislate on local or regional matters, barring Parliament from intervening.
3. Concurrent List – Both Parliament and states may legislate, with Parliament’s law prevailing in case of conflict

Additionally, Article 246(4) grants Parliament the power to legislate for territories not included in any state, even on subjects in the State List.

Article 73 of the Constitution authorizes the executive to make rules and regulations on matters delegated by Parliament, while Article 162 grants similar powers to state governments. This delegation is justified as legislatures may lack the technical expertise required for complex financial or administrative legislation. 

Although the Constitution allows delegation of legislative powers, such delegation is not unlimited. The Supreme Court of India has identified three fundamental restrictions to ensure that delegated legislation remains within lawful and constitutional bounds:

1. Requirement of Clear Guidelines: The enabling or parent Act must clearly specify the scope, purpose, and limits of the delegated authority. Delegation without defined parameters is impermissible.
2. Prohibition on Delegating Core Principles: The parent Act cannot delegate the essential features, fundamental principles, or policy decisions of the legislation itself. Such matters must remain within the exclusive domain of Parliament or the State Legislature.
3. Accountability Mechanisms: Delegated powers must include provisions for oversight, judicial review, or other forms of accountability to prevent arbitrary or abusive exercise of authority.

Indian courts have adopted different approaches to delegated legislation. In Gomati Sugar Mills Co Ltd v State of Uttar Pradesh, the Supreme Court took a strict view, requiring that the parent Act provide clear guidelines for valid delegation. Conversely, in S.R. Bommai v Union of India, the Court allowed a more flexible approach, permitting broad but reasonable limitations on delegated powers.

In Re Delhi Laws Act (1951) A pivotal advisory opinion that legitimized conditional legislation (delegating power to apply laws to areas) but set limits, emphasizing the legislature must retain essential policy-making power, not abdicate it. In Hamdard Dawakhana v. UOI (1960) Held essential legislative functions (laying down policy) cannot be delegated, only ancillary powers; legislature can’t create a parallel legislature. In Air India v. Nargesh Meerza (1981) it invalidated discriminatory service regulations violative of Article 14. 

7. Limits on Delegated Legislation 

7.1 Essential Legislative Function Doctrine

Essential legislative functions are the fundamental law-making tasks that must be carried out solely by the legislature and cannot be delegated to the executive or any subordinate authority. While the legislature can delegate ancillary or procedural functions (e.g., rule-making, regulation framing), it cannot delegate the essential legislative functions, such as:

1. Formulating the policy behind the legislation
2. Deciding on penalties or taxes without guidance
3. Determining the extent of rights or liabilities

In Ajoy Kumar Banerjee v Union of India, the Supreme Court held that executive orders under a parent Act are valid only if the Act provides clear policy and principles. The case reinforced that delegated legislation must be guided by legislative standards, ensuring that the executive does not overstep its authority.

7.2 Excessive Delegation

Delegated legislation enables the executive in Bangladesh and India to frame rules and regulations for implementing parent laws, facilitating efficient governance. However, this power is limited, as courts enforce the Doctrine of Excessive Delegation, which prevents the legislature from transferring its core law-making functions to subordinate authorities. The Indian Supreme Court has established that while delegation is allowed, it must not be “unguided and uncontrolled”. Parliament cannot delegate its fundamental policy-making responsibilities, which encompass establishing the law’s objectives, setting standards, and defining the guiding legal principles for the subordinate authority. As Bangladesh follows the supremacy of the Constitution, secondary (delegated) laws are subject to judicial scrutiny by the High Court Division under Article 102. As Bangladesh follows the supremacy of the Constitution, secondary (delegated) legislation is subject to judicial review by the High Court Division under Article 102. The executive is empowered to make rules for governance, but these are subordinate to the parent Act. Similar to India, the delegation must not be unguided, and the core legislative policy must remain with the legislature. The Supreme Court of Bangladesh can strike down delegated legislation if it violates the Constitution or the parent Act, or if it is deemed to be a “substantive ultra vires” action. Delegated legislation, made by the executive under a Parent Act, must follow clear legislative guidance. Without adequate policy direction, delegation may be excessive and declared ultra vires by the courts.

7.3 Ultra Vires Doctrine

In Bangladesh and India, the doctrine of ultra vires applies when delegated authorities act beyond their legal powers.  

Substantive vs. Procedural

1. Substantive: About what power is used (beyond scope, conflicts with law).
2. Procedural: About how the power is used (missing mandatory steps/notice).

Substantive ultra vires occurs when the content of the law exceeds the scope of the enabling statute or violates constitutional provisions, while procedural ultra vires arises from failure to follow the procedures mandated by the parent Act, such as notice or consultation requirements. Both forms render delegated legislation invalid, with courts reviewing the substance to assess what powers were exercised and the procedure to examine how they were exercised, ensuring authorities remain within their legal limits. 

7.4 Sub-delegation (Delegatus non potest delegare)

“Delegatus non potest delegare” is a Latin legal maxim meaning “a delegate cannot delegate.” It holds that a person granted authority to act on behalf of another (the agent) cannot further delegate that authority to a third party without explicit permission. In other words, a delegate cannot appoint someone else to act in their place. This principle ensures clarity and accountability in legal relationships, as the original delegate remains ultimately responsible for the exercise of the authority entrusted to them.

Sub-delegation is generally prohibited unless expressly permitted by the parent Act. For example, in Ganpati Singhji v State of Ajmer, rules that allowed a District Magistrate to exercise powers granted to the Chief Commissioner were held to be invalid. 

8. Judicial Control over Delegated Legislation

Judicial control of delegated legislation upholds the rule of law by ensuring administrative powers remain within the enabling Act and the Constitution. Through judicial review, courts can strike down ultra vires rules. In India, delegated legislation follows the normal rules of administrative review, though it generally cannot be challenged for violations of natural justice. 

Delegated legislation can be challenged in courts on several grounds:

1. Ultra Vires the Constitution: The enabling Act itself may be unconstitutional if it violates fundamental rights or the constitutional distribution of powers. For example, in Re Delhi Laws Act, the legislature cannot delegate its essential law-making powers.
2. Ultra Vires the Enabling Act: Delegated rules must conform to the parent Act. In Narendra Kumar v Union of India (AIR 1960 SC 430), the court emphasized that delegated legislation cannot authorize anything beyond the statute or anything unconstitutional.
3. Substantive Ultra Vires: Occurs when delegated legislation exceeds the powers granted by the enabling Act or conflicts with it. In Dwarka Nath v Municipal Corp. (AIR 1971 SC 1844), Rule 32 under the Prevention of Food Adulteration Act, 1954, was struck down for going beyond the statutory scope.
4. Procedural Ultra Vires: Delegated legislation may be invalid if mandatory statutory procedures (e.g., consultation, publication, laying before Parliament) are not followed. Courts generally do not invalidate rules for non-compliance with directory or non-mandatory procedures. 

In Bangladesh, judicial control of delegated legislation is exercised mainly through judicial review, with the High Court Division under Article 102 of the Constitution empowered to invalidate rules or regulations that exceed the authority of the parent Act or violate the Constitution. Courts ensure that delegated laws comply with fundamental rights, are reasonable, and follow required procedures. Key grounds for review include substantive ultra vires, such as exceeding the scope of the enabling Act or conflicting with constitutional provisions, and procedural ultra vires, such as failure to follow mandatory consultation, publication, or other prescribed processes.

8.1 Comparative Evaluation

Both Bangladesh and India recognize delegated legislation as a necessary administrative tool, but judicial oversight ensures that the executive does not exceed its lawful authority.

1. Constitutional Basis:

In Bangladesh, judicial review is exercised under Article 102 of the Constitution, empowering the High Court Division to strike down rules or regulations that are ultra vires the Constitution or the enabling Act.

In India, judicial review of delegated legislation is grounded in Articles 245–247 and general principles of administrative law, allowing courts to invalidate rules that violate the Constitution, the enabling Act, or legislative policy.

2. Substantive Control:

In both countries, courts assess whether delegated legislation exceeds the authority conferred by the parent Act (substantive ultra vires).

Bangladesh emphasizes compliance with fundamental rights and reasonableness,⁴ while India scrutinizes whether essential legislative principles or policies have been delegated, as in Ajoy Kumar Banerjee v Union of India and Dwarka Nath v Municipal Corp. 

3. Procedural Control:

Bangladesh requires compliance with mandatory procedures such as consultation, publication, and adherence to statutory methods; non-compliance can render rules invalid.

India distinguishes between mandatory and directory procedures; courts invalidate rules only when mandatory statutory procedures are ignored.

9. Contemporary Challenges and Emerging Concerns 

In both Bangladesh and India, contemporary challenges in delegated legislation arise from expanding executive powers driven by technical, digital, and administrative complexities. Emergency or security regulations, such as digital surveillance, can encroach on civil liberties, while increased administrative discretion often outpaces existing oversight mechanisms. These trends raise concerns about transparency, accountability, and the protection of fundamental rights, as both countries seek to balance efficient governance with democratic principles amid rapid technological and socio-economic change. 

Main Challanges in Delegated Legislation: Bangladesh & India

1. Accountability Gap: Delegated legislation often creates a mismatch between expansive executive powers and limited parliamentary or judicial oversight, particularly in areas like national security and digital governance.
2. Rights vs. Development: There is a persistent tension between pursuing rapid economic growth or national security and protecting fundamental rights and freedoms.
3. Technological Dependence: Regulation of emerging technologies increasingly grants substantial authority to technocratic bodies and administrative regulators, raising concerns about transparency and control.
4. Balancing Governance and Rights: Both Bangladesh and India struggle to modernize governance to address complex 21st-century challenges while ensuring democratic accountability and protecting individual rights, with the expansion of administrative power being a central concern.

10. Conclusion 

Delegated legislation plays a vital role in modern governance in both Bangladesh and India, enabling the executive to implement complex laws efficiently while addressing technical, administrative, and socio-economic challenges. The analysis reveals that both jurisdictions recognize the necessity of delegation but enforce strict limits to protect core legislative functions and uphold constitutional principles. Judicial review remains the primary mechanism for controlling excesses, with courts scrutinizing both substantive and procedural ultra vires actions to ensure compliance with the enabling Act and the Constitution.

Comparatively, India exhibits a more flexible approach, allowing broader delegation provided that enabling statutes contain sufficient policy guidance, as seen in cases like S.R. Bommai v Union of India and Ajoy Kumar Banerjee v Union of India. Bangladesh, by contrast, emphasizes constitutional supremacy and stricter adherence to fundamental rights, reflecting a heightened focus on judicial oversight under Article 102. Both countries, however, face similar contemporary challenges, including expanding executive power in digital governance, emergency regulations, and technocratic administration, which strain parliamentary and judicial oversight.

Ultimately, the study underscores the delicate constitutional balance between governance efficiency and democratic accountability. Delegated legislation, when properly guided and monitored, allows governments to address complex 21st-century challenges without compromising the legislature’s essential law-making powers or citizens’ fundamental rights. Both Bangladesh and India continue to navigate this tension, highlighting the importance of robust safeguards, transparency, and judicial vigilance in preserving the rule of law and constitutional democracy.