CONTENTS Part – I CERTIFICATE ACKNOWLEDGMENT
i ii
CONTENT
iii
INTRODUCTION
1
SIGNIFICANCE OF THE TOPIC
3
AIM AND OBJECT OF THE STUDY
3
REVIEW OF LITERATURE
4
HYPOTHESIS
5
SCOPE OF STUDY
5
SCHEME OF STUDY
6
BODY OF PROJECT
7
BIBLIOGRAPHY
26
Part- II Report on Tutorial Periods A paragraph about each of Tutorial Periods. (The students must maintain the date of tutorial period in which the assignment was give given. n. What What was the the assi assign gnme ment nt-- case case stud study/ y/ case case anal analys ysis is-oral/written. A handwritten: of one to two paragraphs should be given.
1
CERTIFICA TE
This is to certify that the project titled “DELEGATED LEGISLATION vis a vis submi bmitte tted d by Ms. Kristy Kristy Baptis Baptistt in the CONSTITUTIONAL LAW ”– su subj su bjec ectt of Ad Admi mini nist stra rati tive ve Law Law embo embodi dies es inde indepe pend nden entt and and original research work carried out by her under my supervision and guidance. To To the the best best of my know knowle ledg dge e and and beli belief ef,, it is his his ori origina ginall work work subm su bmit itte ted d to fulf fulfil illl the the proj projec ectt assi assign gnme ment nt for for the the Seme Semest ster er End End Examination of seventh semester of B.A.LL.B. Programme during the academic year 2010-11.
Date :
Dr. Tarun Arora Asst. Professor in Law Institute of Law, Nirma University Ahmedabad
2
CERTIFICA TE
This is to certify that the project titled “DELEGATED LEGISLATION vis a vis submi bmitte tted d by Ms. Kristy Kristy Baptis Baptistt in the CONSTITUTIONAL LAW ”– su subj su bjec ectt of Ad Admi mini nist stra rati tive ve Law Law embo embodi dies es inde indepe pend nden entt and and original research work carried out by her under my supervision and guidance. To To the the best best of my know knowle ledg dge e and and beli belief ef,, it is his his ori origina ginall work work subm su bmit itte ted d to fulf fulfil illl the the proj projec ectt assi assign gnme ment nt for for the the Seme Semest ster er End End Examination of seventh semester of B.A.LL.B. Programme during the academic year 2010-11.
Date :
Dr. Tarun Arora Asst. Professor in Law Institute of Law, Nirma University Ahmedabad
2
ACKNOWLEDGEMENT I would like to express my sincere gratitude to Dr.Tarun Arora, Assistant Prof Profes esso sorr in the the Inst Instit itut ute e of Law, Law, Nirm Nirma a Univ Univer ersi sity ty,, Ah Ahem emda dabad bad for for his his constant guidance and support in understanding the depth of the subject matter of this project. Without his help this project would not have been completed. I would also like to thank my parents and my friends who have constantly encouraged and inspired me to prepare this project.
12th October 2010 Kristy Baptist (08BAL005) Institute of Law, Nirma University
3
INTRODUCTION
The three organs of Government are the Legislature, the Executive and the Judiciary. According to the traditional theory, these three organs essentially perform three classes of governmental functions i.e. Legislative, Executive, Judicial. The function of legislature is to enact the law; the executive is to administer the law and the judiciary is to interpret the law. In other words it can be said that the legislative power must be exercised exclusively by the legislators who are directly responsible to the electoral. But with the change in society from a police state to a welfare state, the functions of administrators have increased as a matter of fact the executive performs many legislative and judicial functions also. It has, therefore, been rightly said that the delegated legislation is so multitudinous that a statute book would not only be incomplete but misleading unless it be read along with delegated legislation which amplifies and supplements the law of the land.1 In India, during 1973 to 1977, the parliament enacted about 300 statues, but the total number of statutory rules and orders reached more than 25,000. 2 Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, i.e., powers given by the legislature to administration to enact laws to perform administration functions. The law legislate by the administration with the powers given by the legislature is called delegated legislation. Or we can say that when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature is called subordinate legislation or delegated legislation.
1
Cecil Corr, Delegated Legislation (Greene Street: University of Michigan Library Press)1921 p 1. 2 Avinder Singh v. State of Punjab, (1979) 1 SCC 137 at p. 160
4
Wade
in
his
work,
had
once
stated3:“Administrative
Legislation
is
traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify in theory than it is possible to do without it in practice. There is only a
hazy border line between legislation
and
administration and the
assumption that they are two fundamentally different forms of power is misleading. There are some obvious, general differences. But the idea that a clean division can be made (as it can be more readily in the case of the judicial powers) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them or apply the law to them, in some particular situation.”
3
Wade & Forsyth, Adminiatrative Law (oxford university press) 2005 p 857-58.
5
SIGNIFICANCE OF THE TOPIC
In no democratic society committed to the establishment of a welfare state, the legislature monopolizes the legislative power. It shares the same with the Executive and other administrative organs of the state. Hence it is significant to understand the need of Delegated Legislation and how it helps in maintaining peace and order in our country.
AIMS AND OBJECTIVE
The objective of the project is to analyze and critically evaluate the role of Delegated Legislation in relation to our Indian Constitution. Delegated
legislation is a technique to relieve pressure on legislature’s time so that it can concentrate on principles and formulation of policies. The study has been made with the aim of concluding with the help of major relevant case laws, the real meaning of Delegated Legislation and it’s applicability in the our country under the provisions of Indian Constitution. The objective is to understand the practical application and the imitations of Delegated Legislation in our country by critically evaluating a few landmark cases.
6
REVIEW OF LITERATURE
The research work is a doctrinal in nature. The researcher has gone through a number of books and has collected relevant material. The first step of this research was to identify the problem and then a number of books were referred like ‘The Constitutional Law of India’ by J.N. Pandey, ‘Lectures on Administrative law’ by CK Takwani, ‘Judicial Activism in India’ by S.P Sathe, many other articles and cases were also read. (1) ‘Lectures on Administrative law’ by CK Takwani – in this book,
the author has beautifully dealt with the topic of Delegated Legislation, he has divided the topic into two parts i.e General Principles and Control & Safeguard. He has explained Delegated Legislation in context of Indian Constitution with the help of a few cases of Pre and Post Constitutional period, such as, R. v. Burah and Jatindra Nath Gupta v. Province of Bihar, the Delhi Laws Act,1912 and Edward Mills Co. Ltd. v. State of Ajmer.
(2) ‘The Constitutional Law of India’ by J.N. Pandey – In this book,
the author has explained the topic of Delegated Legislation very briefly. He has basically dealt with the reason behind the need of Delegated Legislation and also explained the two ways by which Delegated Legislation can be controlled. He has mainly explained the topic by giving an overall view of the working of the three organs of the government and their relation with each other.
7
HYPOTHESIS
-
The Constitution in a democratic setup is the yardstick to test the
validity of actions of governmental organs. -
The Delegated Legislation must meet the test of Constitutional
limitations in order to a valid one.
SCOPE OF THE STUDY
The research topic of this project is of a very wide range. But in this project the researcher has confined the study of Delegated Legislation only in the context of Indian Constitution and the main focus is to understand the real meaning of Delegated Legislation in India through it General Principles. The scope of this project has been further restricted to the pre and post constitutional period of India.
8
SCHEME OF STUDY
Introduction
History
Definition
Reason for the growth and development
Delegated Legislation in India
Control mechanism of Delegated Legislation in India
Limitations of Delegated Legislation
General Principles
Conclusion
9
BODY OF THE PROJECT
INTRODUCTION: According to the traditional theory, the function of the executive is to administer the law enacted by the legislature, and in the ideal state the legislative powers must be exercised exclusively by the legislature who are directly responsible to the electorate. Apart from the pure administrative function executive also performs legislative and the judicial function also. In England theoretically it is only parliament, which can make laws. Even in the United States of America where the doctrine of the delegated legislation has not been accepted in principal, in practice the legislature has entrusted legislative powers to the executive. Administrative legislation met with a rapid growth after World War II and in India during 1973 to 1977.4 Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, i.e., powers given by the legislature to administration to enact laws to perform administration functions. The law legislate by the administration with the powers given by the legislature is called delegated legislation. Or we can say that when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature is called subordinate legislation or delegated legislation. 4
Monica Chawla, Delegation Of Legislative Powers, (New Delhi: Deep & Deep Publications Pvt. Ltd) 2007 p 56.
10
HISTORY:
a. Pre – Constitutional Position:
The history of delegation of powers can be traced from the charter stage of 1833 when the East India Company was regaining political influence in India. The Charter of 1833 vested the legislative powers exclusively in Governor General in council, which was an executive body.5 He was empowered to make laws and regulations for repealing, amending or altering any laws or regulations, which were in force for all persons irrespective of their nationality. In 1935 the Government of India Act, 1935 was passed which contained an intensive scheme of delegation. The report of the committee on ministers’ powers was submitted and approved which fully established the case for delegation of powers and delegation of legislation was regarded as inevitable in India.
b.Present Position: Though, our constitution was based on the principal of separation of powers, a complete separation of powers was not possible hence it maintained the sanctity of the doctrine in the modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other hand there are several provisions where the executive has been granted 5
Available at www.indianetzone.com/24/the_charter_act_1833.htm last visited on 0ctotber 12, 2010.
11
the legislative powers. For example the legislative powers of the president under the Indian Constitution are conspicuous. the president has the power to promulgate the ordinances and unrestricted power to frame regulations for peace progress and good government of the union territory. 6 The Supreme Court of India has also upheld the delegation of legislative powers by the legislative to the legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration
Committee 7.
6 7
Article 240 of the Constitution of India AIR 1954 SC 569 : (1955) 1 SCR 290
12
DEFINITION: “It is sometimes said that parliament makes the laws. It is true that parliament makes the laws if by this we mean that parliament has an essential role in the creation of acts; but looking at the whole legislative process, it would perhaps be more realistic to say that the Government makes the laws subject to prior Parliamentary consent .” •
Griffith 8
It means that the authority making the legislation is subordinate to the legislature. The legislative powers are exercised by an authority other than the legislature in exercise of the powers delegated or conferred on them by the legislature itself. This is also known as ‘subordinate legislation’, because the powers of the authority which makes it are limited by the statue which conferred the power and consequently, it is valid only insofar as it keeps within those limits. It includes all the bye-laws, rules, regulations, orders, etc., following are some examples: 9 - The object of the Minimum Wages Act, 1948 is “to provide for fixing
minimum wages in certain employments.” This Act is applied to the employments mentioned in the schedule. But the central Government (executive) is empowered to add any other employment to the Schedule if, ‘in the option of the Government’ the Act should apply. - Similarly, The Essential Commodities Act, 1955 enumerates certain
commodities as ‘essential commodities’ under the Act. But the list given in the statute is not exhaustive and the Central Government is
8 9
C.K.Takwani, Lectures on Administrative Law (Lucknow: Eastern book Company) 2008 p 60 S.P.Sathe, Judicial Activisim In India (New Delhi: Oxford University Press) 2002 p 10.
13
empowered to declare any other commodity’ and to apply the provisions of the Act to it.
The statue enacted by the legislature conferring the legislative power upon the executive is known as the ‘Parent Act’ or ‘Primary Law’ and the rules, regulations, bye-laws, orders, etc… made by the executive in pursuance of the
legislative
powers
conferred
by the
legislature
are
known
as
subordinated laws or subsidiary laws or ‘child legislation.’
‘Delegated
Legislation’
is
an
expression
which
covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists. -Jusice Mukherjee10
10
C.K.Takwani, Lectures on Administrative Law (Lucknow: Eastern book Company) 2008 p 60
14
REASONS FOR GROWTH OF DELEGATED LEGISLATION Many factors are responsible for the speedy growth of delegated legislation in India. The traditional theory of 'laissez faire' has been given up. As earlier India was a 'police State' but now it has become a 'welfare State'. Because of this radical change in the way of life as to the role to be played by the State, its functions have increased. Consequently, delegated legislation has become essential and inevitable. The factors responsible for the growth of delegated legislation are11:
(a) Pressure upon Parliamentary time Due to the expanding horizons of State activity, the vastness of legislation has increases so much that it is not possible for the legislature to give satisfactory time to discuss all the matters in detail. Therefore, legislature formulates the general policy i.e. the framework or the basic outline and empowers the executive to fill in the details by issuing necessary rules, regulations, bye-laws, etc.12 In the words of Sir Cecil Carr 13, delegated legislation is "a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the 11
Delhi Laws Act, 1912, in Re, AIR 1951 se 332: 1951 SCR 747; Municipal Corpn. of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232. 12 Garner, Administrative Law (London: oxford university press ) 1985 p. 4 9 13 Cecil Carr, Delegated Legislation (Greene Street: University of Michigan Library press) 1921 p 2.
15
parent manages the main business". If the 525 parliamentarians are to focus on every minuscule legislative detail leaving nothing to
subordinate agencies
the
annual
output
may be both
unsatisfactory and negligible.14
(b) Technicality Sometimes, the subject-matter on which legislation is required is so technical in nature that the legislator, who is a common man, cannot be expected to make laws in that area, the support and help of experts is then required. For instance, when the problem is related to gas, atomic energy, drugs, electricity, etc. (c) Flexibility
At the time when legislative enactments are done, it is impossible to predict all the contingencies, and some provision is required to be made for these unforeseen situations demanding difficult action. For that purpose, in many statutes, a 'removal of difficulty' clause is found which empowers the administration to overcome difficulties by exercising delegated power. 15
(d) Experiment The practice of delegated legislation enables the executive to experiment. The method permits rapid utilization of experience and implementation of necessary changes.
(e) Emergency
14
Avinder Singh v. State of Punjab, (1979) 1 see 137: A1R 1979Se 321. C.K.Takwani, Lectures on Administrative Law (Lucknow: Eastern book Company) 2008 p 68. 15
16
In the time of emergency, quick and decisive action is required to be taken and at the same time it is to be kept confidential. For example in times of war and other national emergencies, such as aggression, break down of law and order, strike, etc. The legislative process is not equipped to provide for urgent solution to meet the situation. Hence there is need for delegation of power and the executive is delegated the power to make rules to deal with such situations. (f ) Complexity of modern administration
The complexity of modem administration and the spreading out of the functions of the State to the economic and social sphere have made it necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. By resorting to traditional legislative process, the entire object may be frustrated by vested interests and the goal of control and regulation over private trade and business may not be achieved at all. The practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out of practical necessity and pragmatic needs of the modern welfare State.16
16
Ajoy Kumar Banerjee v. Union of India , (1984) 3 see 127: AIR 1984 SC 1130.
17
DELAGATED LEGISLATION IN INDIA The discussion can be divided into two stages(a) pre-Constitution period; (b) post-Constitution period.
Pre-constitution period: •
In the case of
R. v. Burah17, which
is
a
landmark case in this subject, the notification dated October 14, 1871 of the Act 1869
XXII
of was
challenged. This 17
(1878) 3 AC 889: (1878) 5 IA 178: 1LR 4 Cat 172 (PC).
18
notification was challenged by
the
appellants against
the
power exercised
by
the LieutenantGovernor, who extended the
all
provisions
of the Act to the District of Khasi
and
Jaintia
Hills.
According
to
the
Act,
the
area of Garro Hills
was
removed
from
the jurisdiction of
civil
and
criminal courts, and by Section 9,
the
LieutenantGovernor
was
empowered to extend mutatis
mutandis all or any
of
the 19
provisions
of
the
Act
applicable Khasi,
to
Jaintia
and Naga Hills in
the
Garro
Hills and to fix the
date
of
such application. The High Court of Calcutta upheld the contentions of the appellant by majority and held that Section 9 of the Act was Ultra vires the powers of the Indian Legislature. According to the court, the Indian Legislature was a delegate of the imperial Parliament and therefore further delegation was not permissible. Further, the Privy Council on appeal reversed the decision of the Calcutta High Court and held that the Indian Legislature was not an agent or delegate of the Imperial Parliament and it had plenary powers of legislations as those of Imperial Parliament itself. It agreed that the Governor-General in council could not, by legislation, create a new legislative power in India not created or authorized by the council’s act. But infact it was not done. It was only a case of conditional legislation. •
Similarly
Jatindra
in
Nath
Gupta
v.
Province
of
Bihar
18
The
Bihar Maintenance of
18
AIR 1949 FC 175: 1949 FCR 595.
20
Public
Order
Act, 1948 was to
remain
force
for
in one
year. However, the power was conferred the
on
Provincial
Government to extend
the
operation
of
the Act for a further of
period
one
year.
The
Federal
Court,
held
that the power to extend the operation
of
the Act beyond the
period
of
one year was a legislative act, and therefore, could
not
be
delegated. However, in a dissenting judgment, Fazl Ali, J.19 upheld 19
Ibid. at p 194 (AIR).
21
the
provision
as
the
extension
of
the Act, for a further of
period
one
year
could
not
amount to its re-enactment. It
merely
amounted to a continuance of the
Act
which
for the
maximum period
was
contemplated by
the
legislature itself.
Post-Constitution Period •
In the case of Delhi Laws Act, 1 9 1220 which was the first leading case decided by the Supreme Court on delegated legislation after the Constitution came into force. In this case a reference was made to the Supreme Court by the President of India under Article 143 of the Constitution in the following circumstances:
20
AIR 1951 SC 332: 1951 SCR 747
22
The Central Government was authorised by Section 2 of the "Part 'c' States (Laws) Act, 1950" to extend to any "Part 'C' State with such modifications and restrictions as it thinks fit, any enactment in force in a "Part 'A' State";' and while doing so, it could repeal or amend any corresponding law (other than a Central Act) which might be in force in the "Part 'C' State". The main point of contention was whether the legislature in India could be permitted to delegate its legislative power. The provision was held valid but it was subject to two limitations-
(i) The executive cannot be authorised to repeal a law in force and thus, the provision which empowered the Central Government to repeal a law already in force in the Part C State was bad; and
(ii) By exercising the power of modification, the legislative policy should not be changed; and thus, before applying any law to the Part C State, the Central Government cannot change the legislative policy. The importance of the Delhi Laws Act, Re, cannot be under-estimated inasmuch as, on the one hand, it permitted delegation of legislative power by the Legislature to the Executive; while on the other hand, it demarcated the extent of such permissible delegation of power by the Legislature. In this case, the President of India had forward three tests which define or limit the scope of delegated legislation and functions. They are : The legislative authority can so delegate its function if the delegation can stand three tests,21 (1) it must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation. (2) such power of delegation is not negatived by the instrument by which the legislative body is created or established, and 21
Raunak Jain, ‘The Power Of Delegation: An Inquiry’, available at www.legalserviceindia.com/ articles’ visited on October 4, 2010.
23
(3) ) it does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself. The power of delegation is implicit and included in the power of legislation. This being the touch-stone for not rendering the respective Acts ultra-vires. The same authority to which the powers are delegated are also subjected to the above-stated tests.
•
Edward Mills Co. Ltd. v. State of Ajmer 22, in this case the Schedule to
the Minimum Wages Act, 1948, contained a list of industries to which the Act was made applicable by Parliament, but the appropriate Government was authorised to add any other industry to the said Schedule. The matter of application of the provisions of the Act to any industry was left to the 'opinion of the Government' but no norms were laid down for the exercise of such discretion. The Supreme Court, however, upheld the validity of the Act. According to the Court, the legislative policy was apparent on the face of the Act to fix minimum wages to avoid the chance of exploitation of labour. 'The test for selecting industries to be included in the Schedule, which the court propounded, was nowhere mentioned In the Act but was formulated by the Court itself to uphold the Act' .23
•
Hamdard Dawakhana v. Union of India.
24
was is the first case in which
Central Act was held ultra vires on the ground of excessive delegation. The 22
AIR 1955 SC 25: (1955) 1 SCR 735.
23
M.P. Jain, Indian Constitutional Law (Nagpur: LexisNexis Butterworths Wadhwa) 1987 p 78.
24
1960 AIR 554 1960 SCR (2) 671
24
Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 was enacted by parliament to control advertisement of certain drugs. Section 3 laid down a list of diseases for which advertisement was prohibited and authorized the Central Government to include any other disease in the list. The Supreme Court held Section 3 invalid as no criteria, standards or principles had been laid down therein, and the power delegated was unguided and uncontrolled. The view taken by the Supreme Court was erroneous inasmuch as, the legislative policy had been laid down in the Preamble and title of the Act. Certain diseases had been mentioned and the Government was empowered to include and to bring within its purview 'any
other disease'. There was nothing objectionable in such provision and prior to this case as well as in subsequent cases, such a provision had been held valid by the Court in a number of cases.25
25
Edward Mills Co. Ltd.
v.
State of Ajmer, AIR 1955 se 25
25
CONTROL MECHANISM of Delegated Legislation in INDIA: •
Judicial control: the courts have the power to consider whether the delegated legislation is consistent with the provisions of the Parent Act . The validity of the legislation can be challenged on the ground of ultra vires i.e beyond the competence of the legislature. The courts have the power to declare a parent Act as unconstitutional on the ground of Excessive Delegation or if it is against the scheme of distribution of Legislative powers under Art.246 of the constitution 26. Even if the Parent Act is constitutional but if the delegated legislation emanating from it comes in conflict with the provisions of the constitution then is held unconstitutional.
•
Parliamentary control: Every delegate is subject to the authority
and control of the principal and the exercise of delegated power can always be directed, corrected or cancelled by the principal. Hence parliament control over delegated legislation should be living continuity as a constitutional necessity. The fact is that due to the broad delegation of legislative powers and the generalized standard control also being broad, the judicial control has shrunk, raising the desirability and the necessity of parliamentary control. In India the parliamentary control of delegated legislation is implicit as a normal constitutional function because the executive is responsible to the parliament.27
•
Publication of Delegated Legislation: The Supreme Court has held that unless the delegated legislation is published it cannot be enforced.28
26
J.N.Pandey, The Constitutional Law of India (Allahabad: Central La Agency) 2009 p 612.
27
Available at www.lawyersclubindia.com/articles last visted on October 5, 2010.
28
Harla V. State Of Rajasthan, AIR 1951 SC 467
26
.
LIMITATIONS to Delegated Legislation: It is now settled by majority judgments in Delhi Laws Act, 1912, Re, that there is a limit beyond which delegation may not go. The limit is that essential powers of legislation cannot be delegated. The essential legislative power consists of the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature,
therefore,
may
not
delegate
its
function
of
laying
down legislative policy to an outside authority in respect of a measure and its formulation as a rule of conduct. So long as a policy is laid down and a standard or limit established by statue no unconstitutional delegation of legislative power is involved in leaving to the executive the making of subordinate rules within the prescribed limits and the determination of facts to which the legislation is to apply.29 In Edward Mills Co. v. State of Ajmer 30 it was explained where a legislature is given plenary powers to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise on such power. It exercise of a power is included in the grant of power. In Devi Das Gopal Krishnan v. State of Punjab 31, Subba Rao, C.J. provided another justification for delegated legislation that the Constitution confers a power and imposes a duty on the legislature to make laws, but in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit varying aspects of a complex situation. The legislature must necessarily delegate the working out of details to the executive or any other
29 30 31
agency.
Available at www.lawyersclubindia.com/articles last visted on October 5, 2010. AIR 1955 SC 25 : (1955) 1 SCR 735 AIR 1967 SC 1895
27
GENERAL PRINCIPLES From various judgments of the Supreme Court the following general principles regarding delegated legislation emerge: 32 (1)The Constitution confers a power and imposes a duty on the legislature to make laws and the said function cannot be delegated by the legislature to the executive or even to another legislature. It can neither create a parallel legislature nor destroy its legislative power. (2) The legislature must retain in its own hands the essential legislative functions. The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct. (3) Once the essential legislative function is performed by the legislature and the policy has been laid down, it is open to the legislature to delegate to the executive authority ancillary and subordinate powers necessary for carrying out the policy and purposes of the Act as may be necessary to make the legislation effective, useful and complete. (4) The legislative policy may be reflected in as few or in as many words as the legislature thinks fit.
It
may be express or implied. It may be
gathered from the history, preamble, title, scheme, statement of objects and reasons, etc. (5) The authority to which delegation is made is also one of the factors to be considered in determining the validity of such delegation. However, delegation cannot be upheld merely on the basis of status, character or dignity of the delegate. (6) Safeguards against the abuse of delegated power including power to repeal do not make delegation valid if otherwise it is excessive, 32
C.K. Thakker, Administrative Law (Lucknow: Eastern book Company) 1996 p 103
28
impermissible or unwarranted. (7) Delegated legislation must be consistent with the parent Act and cannot travel beyond the legislative policy and standard laid down by the legislature. (8) Whether or not the legislature has performed the essential legislative function and laid down the policy and the delegation is permissible depends upon the facts and circumstances of each case. (9) It is for the court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature has exceeded limits of permissible delegation. It is, however, the duty of the court to strike down without hesitation any arbitrary power conferred on the executive by the legislature. (10) These principles apply to all forms of delegated legislation, such as conditional legislation, subordinate legislation, supplementary legislation, sub-delegation, etc.
CONCLUSION 29
In my personal opinion, Territories being enormous, monitoring and controlling is not possible for one administrative or executive body. Therefore it is but obvious when certain legislative and executive functions are vested with other authorities rather than a sole central authority exercising all functions. An example of the same being that, in case of emergency where the safety of the Union of India is in danger, the President is given express power to suspend the Constitution and assume all legislative powers. Similarly in the event of the breaking down of the administrative machinery of a State, the President is given powers under Article 257 of the Constitution of India to assume both legislative and executive powers in the manner and to the extent found in the Article. There can be no doubt that subject to all these limitations and controls, within the scope of its powers and on the subjects on which it is empowered to make laws the Legislature is supreme and its powers are plenary. Hence I believe that the delegation of powers is a must but only if it is subject to reasonable restriction. The delegation must not be such that it takes away the very title of a subordinate authority i.e. the subordinate authority should not do a particular act which the superior authority itself cannot do. This in deeper meaning would support the restriction placed upon creation of a parallel legislature. No problem therefore arises if delegated acts are done within the scope and ambit of the authority the superior authority defines. The current global trend is fast changing and responding to the need of powers which have to be delegated and further sub-delegated. for this reason the Latin principle ‘delegata potestas non potest delegari’ which in simple terms means that a delegated function or power cannot be further delegated, is undergoing cynicism and was also disparaged as early as 1825 . It is virtually rendered as just a principle which no one follows. However, subject to the three tests given by the president in the Re Delhi Laws Act case. this principle may be used when prima facie the function under question should have been carried out by that particular authority 30
itself and should have not been delegated due to its urgency and importance, this being my own submission. Yet one must remain vigilant that the principle is not absolutely refuted so that it looses its essence.
31
BIBLIOGRAPHY
Cases referred:
•
-
Avinder Singh v. State of Punjab, (1979) 1 see 137: A1R 1979Se 321
-
Ajoy Kumar Banerjee v. Union of India , (1984) 3 see 127: AIR 1984
-
R. v. Burah (1878) 3 AC 889:
- Jatindra Nath Gupta v. Province of Bihar AIR 1949 FC 175: 1949
FCR 595
•
-
Delhi Laws Act, 1 9 1 2 AIR 1951 SC 332
-
Edward Mills Co. Ltd. v. State of Ajmer AIR 1955 SC 25: (1955)
Books referred -
Massey, I. P. Administrative law. (Lucknow: Eastern Book
Company). 2008 -
Pandey, J N. The Constitutional Law of India. (Allahabad:
Central Law Agency). 2008 -
Takwani, CK. Lectures on Administrative law. (Lucknow:
Eastern book Company). 2008 -
Sathe, S. P. Judicial Activism in India. (New Delhi: Oxford
University Press). 2002
•
Articles referred: 32
