INTRODUCTION It is well known that not all legislation is made b y Parliament itself. Traditionally, Traditionally, legislation is divided between rimary legislation ena!ted by b y Parliament, and delegated legislation rom"lgated by the e#e!"tive. $hile rimary legislation sets o"t matters matters of oli!y and s"bstan!e, the imlementation and detail is is delegated to the e#e!"tive. It is the detail and imlementation of the rimary legislation that ima!ts on daily lives. The !ost of a driver%s li!en!e, the daily limit for taking of shellfish, and what s"bstan!es !an safely be in!l"ded in yo"r breakfast !ereal are all the s"b&e!t of delegated legislation rather than '!ts of Parliament. Delegated legislation (also referred to as se!ondary legislation or s"bordinate legislation) is law made by an e#e!"tive e#e!" tive a"thority "nder owers given to them by rimary legislation in order to imlement and administer the re*"irements of that rimary legislation. It is law made b y a erson or body other than the legislat"re b"t with the legislat"re+s a"thority.Delegated a"thority.Delegated legislation means ermitting bodies beneath arliament to ass their own legislation. Delegated legislation is not to be !onf"sed with the e#e!"tive legislation.The former stands for the laws made by the a"thorities other than the legislat"re to whom the legislat"re delegates its legislative ower.The latter stands for the laws made by the President and the governer rese!tively "nder arti!le - and - of the !onstit"tion.These laws are in the form of ordinan!es whi!h have the for!e of law.s"!h ordinan!es are iss"ed by the rese!tive e#e!"tive heads and they are re*"ired to be ratiffied by the rese!tive legislat"re,namely,the legislat"re,namely,the arliament and the state legislat"re ,as the !ase maybe,after they meet .s"!h an ordinan!e !eases to have effe!t if it is not rattified within si# weeks after the assembly of legislat"re .the so"r!e of delgated legislation is always an a!t of legislat"re whereas the so"r!e of the e#e!"tive legislation is a !onstit"tional rovision
Delegation of owers /eaning Delegation of owers means those owers, whi!h are given by the higher a"thorities to the lower a"thorities to make !ertain laws, i.e., owers given by the legislat"re to administration to ena!t laws to erform administration f"n!tions.The law legislate by the administration with the owers given by the legislat"re is !alled delegated legislation. Or we !an say that when an instr"ment of a legislative nat"re is made by an a"thority in e#er!ise of ower delegated or !onferred by the legislat"re is !alled s"bordinate legislation or delegated legislation. Delegated legislation, also referred to as se!ondary legislation, is legislation made by a erson or body other than Parliament. Parliament, thro"gh an '!t of Parliament, !an ermit another erson or body to make legislation. 'n '!t of Parliament !reates the framework of a arti!"lar law and tends only to !ontain an o"tline of the "rose of the '!t. 0y Parliament giving a"thority for legislation to be delegated it enables other e rsons or bodies to rovide more detail to an '!t of Parliament. Parliament thereby, thro"gh rimary legislation (i.e. an '!t of Parliament), ermit others to make law and r"les thro"gh delegated legislation. The legislation !reated by delegated legislation m"st be made in a!!ordan!e with the "roses laid down in the '!t. The f"n!tion of delegated legislation is it allows the 1overnment to amend a law witho"t having to wait for a new '!t of Parliament to be assed. 2"rther, delegated legislation !an be "sed to make te!hni!al !hanges to the law, s"!h as altering san!tions "nder a given stat"te. 'lso, by way of an e#amle, a 3o!al '"thority have ower given to them "nder !er tain stat"tes to allow them to make delegated legislation and to make law whi!h s"its their area. Delegated legislation rovides a very imortant role in the making of law as there is more delegated legislation ena!ted ea!h year than there are '!ts of Parliament. In addition, delegated legislation has the same legal standing as the '!t of Parliament from whi!h it was !reated. Do!trinal of ermissible limits Do!trine of ermissible limit basi!ally talks abo"t the owers of a legislat"re whi!h !an be delegated to the 'dministrative a"thorities a legislation !annot delegate all its owers. The legislat"re has some limited owers whi!h !an be delegated. Those owers are as follows4 5
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Commen!ement4-6everal stat"es !ontain an +aointed day+ !la"se, whi!h emowers the government to aoint a day for the a!t to !ome into for!e. In s"!h !ases, the oeration of the a!t deends on the de!ision of the government e.g. se!tion of the 0ombay Rents, hotel and 3odging ho"se rates !ontrol a!t, 789 rovides that the a!t shall !ome into oeration on s"!h date as the state 1overnment may by notifi!ation in the offi!ial ga:ette aoint in this behalf. ;ere the a!t !omes into for!e when the notifi!ation is "b lished in the offi!ial ga:ette. 6"!h a rovision is valid for, as 6ir Ce!il Carr remarks,
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6"lying details4 If the legislative oli!y is form"lated by the legislat"re, the f"n!tion of s"lying details may be delegated to the e#e!"tive for giving effe!t to the oli!y. $hat is delegated here is an an!illary f"n!tion in aid of the e#er!ise of the legislative f"n!tion e.g. se!tion of 'll India 6ervi!e '!t, 7= a"thori:es the !entral government to make r"les to reg"late !onditions of servi!e n 'll India 6ervi!es
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/odifi!ations4 6ometimes, rovisions are made in the stat"te a"thori:ing the e#e!"tive to modify the e#isting stat"te before ali!ation. This is really a drasti! ower as it a mo"nts to an amendment of the a!t, whi!h is a legislative a!t, b"t sometimes, this fle#ibility is ne!essary to deal with the lo!al !onditions. Th"s, "nder the ower !onferred by the delhi laws a!t, 7-, the !entral government e#tended the ali!ation of the 0ombay agri!"lt"ral debtors relief a!t.789 to Delhi. The 0ombay '!t was limited in ali!ation to the agri!"lt"rists whose ann"al in!ome was less than Rs. =>> b"t that limitation was removed by the government.
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Pres!ribing "nishments4 In some !ases the legislat"re delegates to the e#e!"tive the ower to take "nitive a!tion e.g., "nder se!tion 9 of the ele!tri!ity a!t,7>, the ele!tri!ity board is emowered to res!ribe "nishment for brea!h of the rovision of the a!t s"b&e!t to the ma#im"m "nishment laid down in the a!t. 0y se!tion =7(9) of the Damodar ?alley '!t, 78@, the ower to res!ribe "nishment is delegated to a stat"tory a"thority witho"t any ma#im"m limit fi#ed by the arent a!t.
'!!ording to the Indian 3aw Instit"te, this ra!ti!e is not ob&e!tionable, rovided two safeg"ards are adoted4 ) The legislation m"st determine the ma#im"m "nishment whi!h the r"le making a"thority may res!ribe for brea!h of reg"lationsA and -) If s"!h ower is delegated to any a"thority other than the state or !entral government, the e#er!ise of the ower m"st be s"b&e!t to the revio"s san!tion or s"bse*"ent aroval of the state or !entral government. 2raming of r"les 4 ' delegation of ower to frame r"les, bye laws, reg"lations, et!. is not "n!onstit"tional, rovided that the r"les, b ye laws and reg"lations are re*"ired to be laid before the legislat"re before they !ome into for!e and rovide f"rther that the legislat"re has ower to amend, modify or reeal them. Removal of diffi!"lties (;enery ?III !la"se) 4 Power is sometime !onferred on the go vernment to modify the rovisions of the e#isting stat"tes for the "rose of removing diffi!"lties. $hen the legislat"re asses an a!t, it !annot foresee all he diffi!"lties whi!h may arise in imlementing it.
The e#e!"tive is, therefore, emowered to make ne!essary !hanges to remove s"!h diffi!"lties. 6"!h rovision is also ne!essary when the legislat"re e#tends a law to a new area or to an area where the so!io5 e!onomi! !ondition are different. 1enerally, two tyes of
The minority, however, took a liberal view and held that the f"n!tions to be e#er!ised by the !entral government was not legislative f"n!tions at all b"t were intended to advan!e the "rose whi!h the legislat"re had in mind. In the words of ;ida"tllah, . (as he then was)4 <arliament has not attemted to set " legislation. I hav e stated all that it wished n the s"b&e!t of bon"s in
the a!t. 'rehending, however, that in the ali!ation of the new a!t do" bts and diffi!"lty might arrive and not leaving there sol"tions to the !o"rt with the attendant delays and e#ense, arliament have !hosen to give ower to the !entral government to remove do"bt and differen!e by a s"itable order.< It is s"bmitted that the minority view is !orre!t and after alan trading !omany, the 6"reme Co"rt adoted the liberal aroa!h. In 1ammon India 3td. ?. "nion of India a similar rovision was held !onstit"tional by the !o"rt. Disting"ishing alan Trading Comany, the !o"rt observed4
/erits of Delegated legislation In modern time there has been an enormo"s in!rease in delegated legislation.The !ir!"mstan!es favo"ring delegated legislation are as follows4 Press"re of work5 arliament is a very b"sy body.it is overb"rdened with the legislative work.$ithin the short san of its life it has to ass a no of legislation and has to take " s"!h intensive legislative work that it !an hardly ena!t the rovision of law in details.if it devotes its time in laying down minor and s"bsidiary detail of every legislation by making all the r"les re*"ired "nder it ,whole of its time wo"ld be !ons"med in dealing with a few a!ts only and it wo"ld not be able to !oe with the growing needs of legislation.Th"s the ress"re of work revents the legislat"re to rovide all the re*"ired details in an a!t and !omels it to delegate its legislative owers in a limited sense . te!hni!ality of s"b&e!t5matter The legislat"re has to ass so many laws in modern times ,where their !ontents are te!hni!al in nat"re .The legislators not being e#erts or te!hni!ian ,!annot work o"t details of s"!h laws.The legislators at the best , !o"ld lay down the oli!y or the rin!iles leaving the details to be filled " by the e#e!"tive whi!h is !ometent to do so by making the r"les of te!hni!al nat"re. To meet "nforseen !ontingen!ies The need of amlifying the main rovision of so!ial legislation to meet "nforseen !ontingen!ies or to fa!ilitate ad&"stment to new !ir!"mstan!es arises all too fr*"ently,for whi!h the Parliamentary ro!ess involves delay,b"t delegated legislation offfers raid ma!hinery for amendment. #edien!y and fle#ibility In some !ases ,s"!h as !hanges in rationing s!heme or imosition of imort d"ty or !ontrol of e#!hange ,"bli! interest re*"ires that the rovisions of law sho"ld not be made "bli! "ntil the time fi#ed for for its enfor!ement be!omes rie.Delegated legislation is the only means to a!hieve this ob&e!tive. /oreover ,in the !ase of delegated legislation !hanges take la!e more !onveiniently witho"t delay ,whi!h is not ossible in the !ase of legislation by the arliament. To meet emergen!y In !ase of emergen!y whi!h may often arise on a!!o"nt of war,floods,eidemi!s,e!onoi! deression and the like,the #e!"tive m"st be armed with the r"le5making ower so that the remedial a!tion may be taken immediately.In a modern state there are many o!!asions when s"dden need of legislative a!tion is felt . To meet s"!h needs delegated legislation is the only !onvenient or even ossible remedy.
Demerits of delegated legislation
E It has been s"ggested that by having delegated legislation to make and amend laws.
E It la!ks demo!ra!y as too m"!h delegated legislation is made by "nele!ted eole.
E Delegated legislation is s"b&e!t to less Parliamentary s!r"tiny than rimary legislation. Parliament therefore has a la!k of !ontrol over delegated legislation and this !an lead to in!onsisten!ies in laws. Delegated legislation therefore has the otential to be "sed in ways whi!h Parliament had not anti!iated when it !onferred the ower thro"gh the '!t of Parliament.
E Delegated legislation is the la!k of "bli!ity s"rro"nding it. $hen law is made by stat"tory instr"ment the "bli! are not normally notified of it whereas with '!ts of Parliament, on the other hand, they are widely "bli!i:ed.
One reason for the la!k of "bli!ity s"rro"nding delegated legislation is be!a"se of the vol" me of delegated legislation made and this res"lt in the "bli! not being informed of the !hanges to law. There has also been !on!ern e#ressed that too m"!h law is made thro"gh delegated legislation.
Ne!essity of Delegated legislation Delegated legislation is ne!essary for a n"mber of reasons4 arliament does not have time to !ontemlate and debate every small detail of !omle# reg"lations, as it only has a limited amo"nt of time to ass legislation, delegating legislation will allow however thoro"ghly debated reg"lations to ass thro"gh as well as saving arliamentary time. Delegating legislation allows law to be made more *"i!kly then arliament, whi!h is vital for times of emergen!y. Parliament takes longer as it does not sit all the time and its ro!ed"res is generally *"ite slow and !omle# d"e to the several stages ea!h bill has to ass thro"gh. Delegated legislation !an also be amended or revoked relatively easily, so that the law !an be ket " to date and so that the law !an meet f"t"re needs that arise s"!h as areas !on!erning welfare benefits, ill"strating a great deal of fle#ibility in the system. Otherwise stat"tes !an only be amended or revoked by another !omli!ated and time5!ons"ming stat"te. /Ps do not "s"ally have the te!hni!al knowledgeFe#ertise re*"ired in for e#amle drawing " laws on !ontrolling te!hnology, ens"ring environmental safety, and dealing with different ind"strial roblems or oerating !omle# ta#ation s!hemes whereas delegated legislation !an "se e#erts who are familiar with the relevant areas. a!*"eline /artin has s"ggested instead for arliament to debate the main rin!iles thoro"ghly, b"t leave the detail to be filled in by those who have e#ert knowledge of it. 'nother arg"ment for the need of delegated legislation is that arliament may not always be the best instit"tion to re!ognise and deal with the needs of lo!al eole. 's a res"lt lo!al eole ele!t !o"n!illors from !ertain distri!ts and it is their resonsibility to ass legislation in the form of by5laws to satisfy lo!al needs.
'rti!le -8= and Ne!essity of Delegation The ne!essity of the legislat"re+s delegating its owers in favo"r of th e e#e!"tive is a art of legislative f"n!tion. It is a !onstit"ent element of the legislative ower as a whole "nder 'rti!le -8= of the Constit"tion. 6"!h delegation of ower, however, !annot be wide, "n!analised or "ng"ided. 'rti!le -8= of Constit"tion of India 'rti!le -8= G#tent of laws made by Parliament and by the 3egislat"res of 6tatesH 6"b&e!t to the rovisions of this Constit"tion, Parliament may make laws for the whole or any art of the territory of India, and the 3egislat"re of a 6tate may make laws for the whole or any art of the 6tate. No law made by Parliament shall be deemed to be invalid on the gro"nd that it wo"ld have e#tra5 territorial oeration.
3egislat"re to lay down 1"idelines for e#er!ising Delegation The legislat"re while delegating s"!h ower is re*"ired to lay down the !riteria or standard so as to enable the delegatee to a!t within the framework of the stat"te. The rin!ile on whi!h the ower of the legislat"re is to be e#er!ised is re*"ired to be dis!losed. It is also trite that essential legislative f"n!tions !annot be delegated. The ro!ed"ral owers are, therefore, normally left to be e#er!ised by the e#e!"tive by reason of a delegated legislation. Delegation to be Reasonable and Not Unlimited In Re4 Delhi 3aws '!t (s"ra) this Co"rt in no "nmistakable terms stated that the legislat"re may "tili:e any o"tside agen!y to the e#tent it finds ne!essary for doing things whi!h it is "nable to do itself or finds in!onvenient to do whi!h wo"ld mean s"!h things whi!h are an!illary to the main ena!tment and ne!essary for the f"ll and effe!tive e#er!ise of its ower of legislation. "sti!e /"kher&ea, in his oinion, stated4 J analysed the oinions of different learned "dges in Re4 Delhi 3aws '!t (s"ra) and !"lled o"t the ma&ority view th"s4
<..that an e#e!"tive a"thority !an be a"thori:ed to modify either e#isting or f"t"re laws b"t not in any essential feat"re. #a!tly what !onstit"tes an essential feat"re !annot be en"n!iated in general terms, and there was some divergen!e of view abo"t this in the former !ase, b"t this m"!h is !lear from the oinions set o"t above4 it !annot in!l"de a !hange of oli!y.< others 'IR 7B> 6C ==8J Krishna /ohan (P) 3td. vs. /"ni!ial Cororation of Delhi and Others (->>) 9 6CC =J. .This Co"rt held that vag"e or "n!analised or "ng"ided ower wo"ld render the delegation bad in law. The legal osition has been e#lained by a Constit"tion 0en!h of this Co"rt in Kishan Prakash 6harma and Others vs. Union of India and Others (->>) = 6CC --J holding 4 Un!analised and Un!ontrollable Power not ermissible "nder delegation <...The legislat"res in India have been held to ossess wide ower of legislation s"b&e!t, however, to !ertain limitations s"!h as the legislat"re !annot delegate essential legislative f"n!tions whi!h !onsist in the determination or !hoosing of the legislative oli!y and of formally ena!ting that oli!y into a binding r"le of !ond"!t. The legislat"re !annot delegate "n!analised and "n!ontrolled ower. The legislat"re m"st set the limits of the ower delegated by de!laring the oli!y of the law and by laying down standards for g"idan!e of those on whom the ower to e#e!"te the law is !onferred. Th"s the delegation is valid only when the legislative oli!y and g"idelines to imlement it are ade*"ately laid down and the delegate is only emowered to !arry o"t the oli!y within the g"idelines laid down by the legislat"re. The legislat"re may, after laying down the legislative oli!y, !onfer dis!retion on an administrative agen!y as to the e#e!"tion of the oli!y and leave it to the agen!y to work o"t the details within the framework of the oli!y. $hen the Constit"tion entr"sts the d"ty of law5 making to Parliament and the legislat"res of 6tates, it imliedly rohibits them to throw away that resonsibility on the sho"lders of some other a"thority.< 6ee also '&oy K"mar 0aner&ee and Others et!. vs. Union of India L Others (7@8) 6CC -9J, 'gri!"lt"ral /arket Committee vs. 6halimar Chemi!al $orks 3td. 779) = 6CC =BJ, Krishna /ohan (s"ra). M"oted from4 6tate Of Ra&asthan L Ors ?. 0asant Nahata ->>=J RD56C 898 (9 6etember ->>=) J One !annot interret the roviso in s"!h a way as to defeat its "rose. There !annot be any do"bt whatsoever that the !o"rt shall not invalidate a legislation on the gro"nd of delegation of essential legislative f"n!tion or on the gro"nd of !onferring "ng"ided, "n!ontrolled and vag"e owers "on the delegate witho"t taking into a!!o"nt the reamble of the '!t as also other rovisions of the stat"te in the event they rovide good means of finding o"t the meaning of the offending stat"te. This ase!t of the matter has been !onsidered in some details in Peole Union for Civil 3iberties and 'nother vs. Union of India and Others (->>8) - 6CC 89BJ and 'ndhra 0ank vs. 0. 6atyanarayana and Others, (->>8) - 6CC B=9J in whi!h one of "s was a member.
0"t reamble and statement of ob&e!t and reason !an only be looked into when there is vag"eness or ambig"ity resent in the lang"age of the '!t as in 'rnit Das vs. 6tate of 0ihar (->>>) = 6CC 8@@J wherein this Co"rt has held 4 <--. 'll this e#er!ise wo"ld have been avoided if only the legislat"re wo"ld have taken !are not to leave an ambig"ity in the definition of <&"venile< and wo"ld have !learly se!ified the oint of time by referen!e to whi!h the age was to be determined to find a erson to be a &"venile. The ambig"ity !an be resolved by taking into !onsideration the Preamble and the 6tatement of Ob&e!ts and Reasons. The Preamble s"ggests what the '!t was intended to deal with. If the lang"age "sed by Parliament is ambig"o"s the !o"rt is ermitted to look into the Preamble for !onstr"ing the rovisions of an '!t (0"rrak"r Coal Co. 3td. v. Union of India). ' Preamble of a stat"te has been said to be a good means of finding o"t its meaning and, as it were, the key of "nderstanding of it, said this Co"rt in '. Thangal K"n&" /"saliar v. /. ?enkata!halam Potti. The Preamble is a key to "nlo!k the legislative intent. If the words emloyed in an ena!tment may sell a do"bt as to their meaning it wo"ld be "sef"l to so interret the ena!tment as to harmonise it with the ob&e!t whi!h the legislat"re had in its view.< 6o it is only when the lang"age is itself !aable of more than one meaning, then the reamble or the statement of ob&e!ts and reasons !an be looked into and not when something is not !aable of given a re!ise meaning as in !ase of +P"bli! oli!y+. ven if the 6tatement of Ob&e!ts and Reasons is looked into to as!ertain its meaning then also there is nothing therein whi!h !an be said to be related to morality or "bli! oli!y. $e have, f"rthermore, not been shown as to how the reamble or any other rovisions of the '!t wo"ld rovide for any g"ideline in !onstr"ing 6e!tion --5' of the '!t. The rin!ial !ontention raised on behalf of the !o"nsel for the 'ellants, as noti!ed hereinbefore, is that the terminology +oosed to "bli! oli!y+ itself rovide for s"!h g"idelines. Scope of Delegation to meet the purpose of statute The s!oe and ambit of s"!h delegated a"thority m"st be so !onstr"ed, if ossible, as not to make it bad be!a"se of the vi!e of e#!essive delegation of legislative ower. In order to make the ower valid, '!t sho"ld be so !onstr"ed in s"!h manner that it does not s"ffer from the vi!e of delegation of e#!essive legislative a"thority. '&oy K"mar 0aner&ee ?s.Union Of India 7@8 'ir >A 7@8 6!r () -=Unlimited right of delegation is not inherent in the legislative ower. 1walior Rayon 6ilk /fg. ($vg.) v. The 'sst.Comm. 6ales Ta# L Ors., 798J - 6.C.R. . @97,J
It was only in the fitness of things that the 6tate 3egislat"re sho"ld have left the wide reventive owers "nder the se!tions to the dis!retion of the 6tate 1overnment, !harged with the maintenan!e of law and order, or to its delegate, to be e#er!ised on their s"b&e!tive satisfa!tion. Dr. N. 0. Khare v. The 6tate of Delhi, (7=>) 6.C.R.=7,referred toJ. 0"t s"!h dis!retion was by no means "nfettered and "n!ontrolled. $here there was any ab"se of
s"!h owers, therefore, what !o"ld be str"!k down was the ab"se itself b"t not the stat"te. Dwaraka Prasad 3a#mi Nayain v. The 6tate of Uttar Pradesh,(7=8) 6.C.R. @>, held inali!able. ;arishankar 0agla v. The 6tate of /adhya Pradesh, (7==) 6.C.R. @>, relied on.as *"oted in., ?IRNDR'?s.T; 6T'T O2 PUN'0 'ND 'NOT;R, 7=9 'IR @7B,7=@ 6CR >@J In 'vinder 6ingh ?s. 6tate Of P"n&ab , the 6"reme Co"rt observed4 >5odd arliamentarians are to fo!"s on every min"s!"le of legislative detail leaving nothing to s"bordinate agen!ies, the ann"al o"tet may be both "nsatisfa!tory and negligible. The 3aw making is not a t"rnke y ro&e!t, ready5made in all detail and on!e this sit"ation is grased, the dynami!s of delegation easily follows. Th"s, we rea!h the se!ond !onstit"tional r"le that the essentials of legislative f"n!tions shall not be delegated b"t the inessentials, however n"mero"s and signifi!ant they be, may well be made over to aroriate agen!ies. Of !o"rse, every delegate is s"b&e!t to the a"thority and !ontrol of the rin!ial and e#er!ise of delegated ower !an always be dire!ted, !orre!ted or !an!elled by the rin!ial. Therefore, the third rin!ile emerges that even if there be delegation, arliamentary !ontrol over delegated legislation sho"ld be a living !ontin"ity as a !onstit"tional ne!essity, $ithin these trile rin!iles, Oeration Delegation is at on!e e#edient, e# igent and even essential if the legislative ro!ess is not to get st"!k " or bagged down or !ome to a grinding halt with a few !omli!ated bills.< mloyees+ 6tate Ins"ran!e Cororation 'nd Ors. vs The $orkmen Of Iti 3td. 'nd Ors. I3R 779 K'R 8,Karnataka ;igh Co"rt ssential f"n!tions !annot be delegated The 6"reme Co"rt, referring to a de!ision of the ;igh Co"rt of '"stralia in 0'TR v. ';. $', (7>7) @ C3R B-B at .B9 ('"s.)('), observed that when the 3egislat"re is given lenary ower to legislate on a arti!"lar s"b&e!t, there m"st also be an imlied ower to make laws in!idental to the e#er!ise of s"!h ower. It was f"rther observed that it is a f"ndamental rin!ile of !onstit"tional law that everything ne!essary to the e#er!ise of a ower is in!l"ded in the grant of the ower, that the 3egislat"re !annot !ertainly stri itself of its essential f"n!tions and vest the same on an e#traneo"s a"thority, and that the rimary d"ty of law making has to be dis!harged by the legislat"re itself b"t delegation may be resorted to as a s"bsidiary or an an!illary meas"re. $ith these observations as the ba!k gro"nd, the 6"reme Co"rt ro!eeded to observe th"s4
$hy is it ne!essary to have !ontrols over delegated legislation There are many imortant reasons why it is ne! essary to have !ontrols over delegated legislation. C"rrently delegated legislation is made by non5ele!ted bod ies away from demo!rati!ally ele!ted oliti!ians (arliament) , as a res"lt many eole have the ower to ass delegated legislation, whi!h rovides a ne!essity for !ontrol, as witho"t !ontrols bodies wo"ld ass o"trageo"s "nreasonable legislation whi!h was attemted in the astA in the 6tri!tland ? ;ayes 0oro"gh Co"n!il (7@B) where a bylaw rohibiting the singing or re!iting of any obs!ene lang"age generally, was held to be "nreasonable and as a res"lt the a ssing of this delegated legislation was re&e!ted. Controls over delegated legislation have been essential in order to avoid a"thorities ab"sing there owers, the arti!"lar !ases are4 R v 6e!retary of 6tate for d"!ation and mloyment, e# arte National Union of Tea!hers (->>>) and Commissioners of C"stom and #!ise v C"re and Deely 3td (7B-). 'nother iss"e whi!h o!!"rs making !ontrols over delega ted legislation vital is s"b legislation, whi!h is where law making is handed down another level to eole other than those who were given the original ower to do so, to imlement imortant oli!ies. Creating !riti!ism that o"r law is made by !ivil servants (who may know hardly anything abo"t the law) and &"st r"bber stamed by the /inister of that aartment, this re*"ires law assed b y these !ivil servants to be !he!ked by the s!r"tiny !ommittee of arliament or the !o"rts. 2inally delegated legislation !an share the same iss"es as '!ts of Parliament s"!h as obs!"re wording that !an lead to diffi!"lty in "nderstanding the law, whi!h again makes !ontrols ne!essary as arliament or the !o"rts !an sto "n!lear legislation, whi!h will affe!t the lives of h"ndreds of eole from assing. The !ontrols that e#ist over delegated legislation and !riti!isms Control over delegated legislation is thro"gh arliament (via affirmativeF negative resol"tion ro!ed"res as well as thro"gh the s!r"tiny !ommittee) !ontrols over delegated legislation also e#ist thro"gh the !o"rts (via &"di!ial review and the do!trine of "ltra vires
ssen!e of delegation as s"mmed " by 6"reme Co"rt of India The "navoidable delegation by the 3egislat"re of working o"t details to the #e!"tive or any other agen!y, in view of the m"ltifario"s a!tivities of the welfare 6tate is atly s"mmed " by the 6"reme Co"rt in D?I D'6 1OP'3 Krishnan ?s. T; 6T'T O2 PUN'0 'ND OT;R6 while taking an e#!ert from ?'6'NT3'3 /'1'K0;'I 6'N'N$'3' v. T; 6T'T O2 0O/0' (7B) 6CR 8), tho"gh at the same, striking note of !a"tion as to whether the 3egislat"re has e#!eeded the limits of delegation. It reads as follows4 " The Constit"tion !onfers a ower and imoses a d"ty on the 3egislat"re to make laws. The essential legislative f"n!tion is the determination of the legislative oli!y and its form"lation as a r"le of !ond"!t. Obvio"sly it !annot abdi!ate its f"n!tions in favo"r of another. 0"t in view of the m"ltifario"s a!tivities of a welfare 6tate, it !annot res"mably work o"t all the details to s"it the varying ase!ts of a !omle# sit"ation. It m"st ne!essarily delegate the working o"t of details to the e#e!"tive or any other agen!y. 0"t there is a danger inherent in s"!h a ro!ess of delegation. 'n overb"rdened 3egislat"re or one !ontrolled by a owerf"l e#e!"tive may "nd"ly overste the limits of delegation. It may not lay d own any oli!y at allA it may de!lare its oli!y in vag"e and general termsA it may not set down any standard for the g"idan!e of the e#e!"tiveA it may !onfer an arbitrary ower on the e#e!"tive to !hange or modify the oli!y laid down by it witho"t reserving for itself any !ontrol over s"bordinate legislation. This self effa!ement of legislative ower in favo"r of another agen! y either in whole or in art is be yond the ermissible limits of delegation. It is for a Co"rt to hold on a fair, genero"s and liberal !onstr"!tion of an im"gned stat"te whether the 3egislat"re e#!eeded s"!h limits. 0"t the said liberal !onstr"!tion sho"ld not be !arried by the Co"rts to the e#tent of always trying to dis!over a dormant or latent legislative oli!y to s"stain an arbitrary ower !onferred on e#e!"tive a"thorities. It is the d"ty of the Co"rt to strike down witho"t any hesitation any arbitrary ower !onferred on the e#e!"tive by the 3egislat"re.<
In rese!t of another rovision of the very '!t, namely the mloyees+ 6tate Ins"ran!e '!t, 78@, i.e. in rese!t of 6e!tion () thereof, the 6"reme Co"rt !onsidered the ne!essity of the 3egislat"re resorting to delegation in view of the ne!essity of e#isten!e of several !ir!"mstan!es in order to bring into for!e the '!t to a arti!"lar area. The 6"reme Co"rt observed that in the very nat"re of things, it wo"ld have been imossible for the 3egislat"re to de!ide in what areas and in rese!t of whi!h fa!tories the mloyees 6tate Ins"ran!e Cororation sho"ld be established and that it was obvio"s that a 6!heme of this kind, tho"gh benefi!ent, !o"ld not be introd"!ed in the whole of the !o"ntry all at on!e and that s"!h benefi!ial meas"res whi!h need !aref"l e#erimentation have some times to be ad oted by stages and in different hases, and, so, inevitably the *"estion of e#tending the stat"tory benefits !ontemlated by the '!t has to be left to the dis!retion of the aroriate 1overnment. The 6"reme Co"rt f"rther observed that the !o"rse adoted by the 3egislat"re in dealing with the welfare s!hemes has "niformly !onformed
to the same attern and the 3egislat"re evolves a s!heme of so!ial and e!onomi! welfare, makes elaborate rovision in rese!t of it and leaves it to the 1overnment !on!erned to de!ide when, how and in what manner the 6!heme sho"ld be introd"!ed.
