NIVERSITY OF PETROLEUM & ENERGY S UNIVERSITY OF STUDIES COLLEGE OF LEGAL STUDIES
B.A., LL.B. (HONS.) SEMESTER VI ACADEMIC YEAR: 2016 -17
EXCESSIVE LEGISLATIVE FUNCTIONS POLICY OF OLICY OF LAW
AND THE
ADMINISTRATIVE LAW Under the Super!"!#n #$ Dr% A!'(h)n *% P)th)n +TO BE FILLED BY THE STUDENT,
NAME-
PRASHANT SINGH SAP NO-
.///01./2 ROLL NO-
R3./045/1/
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9);0. thank" and a$$!ec#at#on" al"o go to m cla""mate" #n develo$#ng the $!o%ect and $eo$le who have w#ll#ngl hel$ed me o&t w#th the#! a'#l#t#e". I am al"o thank&l to the I2 e$a!tment o 34S and the l#'!a! a" well a" w#tho&t them the mak#ng o th#" $!o%ect wo&ld have 'een ne+t to #m$o""#'le. I am thank&l to and o!t&nate eno&gh to get con"tant enco&!agement, "&$$o!t and g&#dance !om m $a!ent" and !#end" who hel$ed me #n "&cce""&ll com$let#ng th#" $!o%ect.
2a'le o content" 1.)Introduction 2.)Key Issues and Challenges 3.)Case Studies 4.)Conclusion 5.)Bibliography
Int!od&ct#on In attempting to improve policy and implementation it is tempting to rely too much on laws and top-down policymaking. Controls on administrative, fiscal, and personnel systems can become so strict that managers cannot manage and elected officials cannot get their programs implemented. Discretion can be reduced to such a minimum that cases with any unusual aspects take weeks and months to be resolved. The resulting inflexibility wastes resources and opportunities, produces policies that are unresponsive to social realities thus eroding the credibility of good-governance efforts!, and can increase incentives to corruption. There is a need for policies that increase the space for debate and consultation, encourage innovation, and pursue desired outcomes with positive incentives rather than through prohibitions alone. "rocedural controls may generate massive amounts of information, but if it comes in forms that only other officials can understand, or if it is generated predominantly by citi#ens$ giving information to government rather than government opening up to citi#ens, transparency is not aided and people are unlikely to develop a personal stake in reforms. %emember that politics is a part of good governance. The controversy and delay that often accompany open political debate may seem an unaffordable luxury, or indeed a serious problem, in societies seeking to enhance the rule of law. Too many reformers view governance primarily as a set of technical administrative tasks, and public participation as either a pro forma exercise or a process to be orchestrated from above via high-profile, but short-lived, mass campaigns. In either scenario citi#ens have little opportunity or incentive to participate in any long-term wa y, or to link official promises to the problems of their own communities. Civil society, where it exists, can and should help define the ends and means of governance reform, benefit from its successes, and claim part of the credit for initiatives that turn out well. &pen debate airing real differences, while engendering some controversy, can elicit sustained participation' particularly if it has clear-cut effects upon the decisions and policies eventually implemented. In both established and renewed democracies citi#ens will be the final arbiters of what is, and is not, credible governance reform( thus it is important to involve citi#ens and )*&s in the shaping of reform agendas from the start. There is no doubt that governance reform re+uires lasting leadership and commitment from above, and that identifying reform champions is an important early stage in providing such leadership. ut such initiatives cannot be effective if they are confined to blue-ribbon commissions that hand down proclamations, or to a one-man show model of reform. /ven though it takes time, effort, and resources, and even though it will involve sharing the credit for improved governance, it is far better to get out into communities, learn about popular concerns, and build a broad base of support.
5e I""&e" and 6hallenge" Pay close attention to probles and contro!ersies" 0s suggested in the opening paragraph, those issues can mobili#e popular energies and commitment far more effectively than can good ideas alone. 1ithout those sorts of connections, citi#ens will see few links between the rule of law, transparency, and accountability on the one hand, a nd the concrete problems of everyday life, and they will not develop a sense that change for the better re+uires their own support, participation, and compliance. %eform leaders who cannot demonstrate broad-based and deep social support will find it all the more difficult to sway officials and interest groups skeptical about, or openly opposed to, reform. 0ctively corrupt figures will take such a lack of support as evidence that the reform movement will be short-lived'and often, they will be right. &ver time, high-profile efforts that do not succeed will lead to public cynicism, and will make the next round of reform even more challenging. Paying close attention to incenti!es
*overnance reforms often emphasi#e public goods, such as efficiency, honesty, cultural empathy, and the like, to the exclusion of private benefits. &ther kinds of appeals'that better governance would cut taxes, make it easier to find 2obs in a revived economy, protect one$s family and property'receive too little attention, even when the goal is enlisting the participation and support of civil society. 0s a result, good-governance efforts encounter collective action problems3 people decide that if reform improves governance for anyone it will do so for all, and thus that their own efforts are inconse+uential or even unwanted. /xtensive efforts must be made to persuade citi#ens, government functionaries, and political leaders that they stand to benefit from reform'that is, to create the sort of sustaining stake in reform noted above. "ublic opinion matters'in many ways. 0ll of this suggests that even in emerging democracies reformers ignore public opinion at their peril. 4urveys and community meetings to identify what people believe about the current state of affairs and expect of reform are essential. 4o are sustained efforts to educate the public about key problems, the 2ustification for proposed changes, the costs of better governance, and actual results. "ublic education can also change citi#ens$ conduct by encouraging them to resist exploitation by officials or by other citi#ens, to file useful reports of problems, and to obey new laws and procedures. Technical improvements to government operations such as new budgetary and procurement procedures may be impressive. ut if people do not think such measures will give them better police service or cut down on time lost in dealing with bureaucrats, then key sources of support will have been lost. The public$s reform criteria may well be achievable3 better road repairs, a n end to demands for bribes b y the police, and fairer and more e+uitable tax assessments might be examples. 5oreover, success at those levels can win support for more ambitious governance reforms, and the patience and tolerance needed for them to take full effect. ut if reform leaders are not aware of what citi#ens think of when they hear words like reform and good governance, credibility may +uickly be lost.
4trengthen checks and balances. 1hile a measure of coordination among segments of government is essential, it is only part of the picture. *o vernment must also be able to check its own excesses. The 2udiciary is essential to interpreting and enforcing new laws and standards, and if it is not independent of the government of the day it will be ineffective. 4imilarly, executive agencies re+uire oversight, and here legislative scrutiny and credible external watchdogs can enhance effective policy implementation and check abuses. 0n ombudsman system to which citi#ens can make complaints and reports may also be valuable, but citi#ens must be confident that they will not face reprisals and that their reports will be taken seriously. /ven then, in some societies citi#ens will resist filing reports for cultural or historical reasons!. These sorts of oversights and controls must be active, consistent, and sustained( if invoked only in emergencies or in the wake of failures they will be of little benefit. )ever underestimate opposition to reform. 5any governance problems result from a shortage of resources or a lack of state technical and political capacity. ut others persist because someone benefits from them, a fact that reformers cannot ignore. 4erious reforms may encounter increasing resistance within government, or from segments of the public, to the extent that they begin to gain traction( yet it will be at precisely those points that active support from top leadership and from civil society may be most important. Transparency and accountability problems are particularly likely to persist because of vested interests in government and society, and reformers must be aware that at times those resisting enhanced transparency and acco untability will go through the motions' filing reports, producing data, carrying out reviews and assessments'in ways that actually conceal rather than revealing and attacking governance problems. 6ere too, outside monitors' auditors, legislative oversight bodies, investigating 2udges'will be essential. Think in regional terms. )eighboring societies and governments may well be coping with similar problems and constraints, and may be finding ways to adapt rule of law, accountability, and transparency mechanisms to new and complex situations. In addition, few of the problems good governan ce is intended to attack are contained within national boundaries. 4haring ideas, experiences, and resources, coordinating rule-of-law functions on a regional basis, and peer review of governance procedures can all contribute to reforms appropriate to social realities, and can make better use of scarce resources. Stay #ocused on the long ter
Too often governance reform is a short-lived issue. This is particularly th e case following a crisis or scandal( once matters settle down it is easy to conclude that all is well and governance problems have been fixed. "articularly with respect to the rule of law and its social foundations, governance reform will take a generation or more, not 2ust a few months or years. 5uch the same is true of transparency and accountability too, in the sense that agency, political elite, and civil service cultures may need to be changed. 5ore rapid progress may be possible in those areas to the extent that individuals can be replaced and the incentive systems of institutions overhauled. /ven then, however, bureaucrats will need periodic retraining, elected officials will need continuing information on governance problems and continuing incentives to fix them!,
and citi#en support will be re+uired over the long term. 6ere too, public education will be an integral part of any effort to deepen the rule of law, and to improve transparency and accountability.
6a"e St&d#e" In India distinction of powers of a sovereign are classified under the 7egislative, /xecutive and 8udiciary. This distinction is blurred, as some would contend, when powers are delegated or subdelegated. 0fter independence, there was a lot of confusion regarding the concept of delegation i.e. whether it is possible and if so, to wh at extent. To clarify this, the "resident of India referred this +uestion to the apex court under 0rticle 9:; of the Constitution. The court laid d own some principles regarding these +uestions. The re Delhi 7aws 0ct is a landmark 2udgment of the < 8udge ench of the 4upreme Court wherein each 2udge had a difference of opinion. Therefore, an analysis of the same would lead to a better understanding of the applicability of the concep t of delegated legislation in India. During the middle of the 9=st century, 5ontes+uieu said, There would be an end of everything where the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of extracting law, that of executing the public resolutions and of trying the causes of individuals.9 The theory of separation of powers signifies three formulations of structural classifications of governmental powers3 •
The same person should not form part of more than one of the three organs of the *overnment. >or example3 ministers should not sit in "arliament
•
&ne organ of the *overnment should not interfere with any other organ of the *overnment.
•
&ne organ of the *overnment should not exercise the function assigned to any other organ.
The aim of this doctrine is to guard against tyrannical and arbitrary powers of the 4tate. The rationale underlying the doctrine has been that, if all power is concentrated in one and the same organ, there would arise the danger that it may enact tyrannical laws, execute them in a despotic manner, and interpret them in an arbitrary fashion without any external control. Though in the face of the complex socio-economic problems demanding solution in a modern welfare state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasi#ing that it is essential to develop ade+uate checks and balances to prevent administrative arbitrariness. Thus, it has been stated about the doctrine3 Its ob2ective is the preservation of political safeguards against capricious 1 2hakke!.6.5., / Administrative Law” , (18), 4a"te!n Book 6o., $. 91
exercise of power( and incidentally, it lays down lines of an effective division of functions. Its logic is the logic of popularity rather than strict classification?.the great end of the theory is, by dispensing in some measure the centers of authority, to prevent absolutism.@ In India, the doctrine of separation of powers has not been accorded a constitutional status. 0part from the directive principle laid down in 0rticle AB which en2oins separation of 2udiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers.; The 4upreme Court in Ram Jawaya Kapoor v. State of Punjab4 , held, In India, not only is there a functional overlapping but there is personal overlapping also. The 4upreme Court has the power to declare void, the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution of the law passed by the legislature in case of executive actions. /ven the power to amend the Constitution by the "arliament is sub2ect to the scrutiny of the Court. The Court can declare any amendment void if it changed the basic structure of the Constitution.A The president, in whom the executive authority is vested, exercises law making power in the form of ordinance making power and also 2udicial power, by virtue of 0rticle 9B;9! and @9<;!. The legislature besides exercising lawmaking powers exercises 2udicial powers in cases of breach of its privilege, impeachment of the "resident and the removal of the 2udges. Indian Constitution has not indeed recogni#ed the doctrine of separation of powers in its absolute rigidity, but the functions o f the different parts or branches of the *overnment have been sufficiently differentiated and conse+uently, it can be very well said that our Constitution does not conte mplate assumption by one organ or part of the 4tate of functions that essentially belong to another. >rom the above discussion it becomes clear that the doctrine in its classical sense, which is structural rather than functional, cannot be literally applied to a ny modern *overnment because neither can the powers of the *overnments be kept in water tight compartments nor can any *overnment run on strict separation of powers. In the same manner, "rof. 1ade writes that the ob2ection of 5ontes+uieu was against accumulation and monopoly rather than
8 ae and Nathan"on , Administrative Law: Cases and Material, (1;1) at $. 9< 9 3$end!a Ba+# : Developments in Indian Administrative Law, #n /Public Law In India” ( 1<8) (A.=. Noo!an#, 4d.), $. 19; > AI? 1@@ S6 @> @ Keshavananda harati v. !tate o" Kerala, (178) > S66 88@
interaction. 5ontes+uieu himself never used the word separation. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs of the 4tate is the sole of the doctrine of separation of powers. 6ence the doctrine can be better appreciated as a doctrine of checks and balances and in this sense administrative process is not an antithesis of the doctrine of separation of p owers. Thus it reached the state where the legislature could not make the law in full to cope up with the situation due to the interference of the state in the multiple facets of life. 0dmittedly, the legislature in India lacks experience and expertise to make laws taken into account the present and future re+uirement in a developing country. 0 law is made to suppress mischief and to advance a remedy. The remedy should be beneficial for the society in future too. That technical know-how and expertise can be attributed only to the executive wing of the *overnment. Therefore, basically it was decided that by retaining the policy of law making with the legislature, the details, the procedures and the method of implementation can be left to the wisdom of the executive, authori#ing them to supply flesh and blood to the skeletal legislature enacted by the legislature. This transfer of authority to make laws to the executive is generally known as delegation of legislative power and the law thus made by the executive as delegated legislation. ut what are the limits within which the ex ecutive can exercise the authority conferred upon them roadly speaking, it cannot be ultra-vires the Constitution and the parent 0ct made by the legislature. The scope of delegation and the checks and balances to be exerted over the executive was considered in detail by the honorable 4upreme Court of India when such a matter was referred to the same under 0rticle 9:; of the Constitution by the "resident. In the present era, it is abundantly clear that the shift to a welfare state has lead to an increase in the administrative functions of the country. 0fter independence, there has been a lot of confusion regarding the concept of delegation i.e. whether it is possible and if so, to what extent. To clarify this, the "resident of India referred this +uestion to the apex court under 0rticle 9:; of the Constitution. The court laid down some principles regarding these +uestions. The in re Delhi Laws Act 7 is a landmark 2udgment of the < 8udge ench of the 4upreme Court wherein each 2udge had a difference of opinion. $IS%&'( & %$* C+S*
To understand the present case better, we have to divide Indian era into basically three3 the pre independence, post independence and the post constitution. ; ade: Administrative Law, $.8@1
7 AI? 1@1 S6 998
The authority regarding delegated legislation in the pre-indepen dence period was primarily held by ueen v. !urrah"# In this case, the 0ct in +uestion 0ct EEII of 9=F! deals with the *overnor *eneral$s power to bring the 0ct in effect, determine what laws were to be applicable and the power to extend application of provisions of the 0ct. 6ere an 0ct was passed by the Indian legislature t remove *aro 6ills from the civil and criminal 2urisdiction of engal an d vested the powers of civil and criminal administration in an officer appointed by the 7t. *overnor of engal. The 7t. *overnor was further authori#ed by 4.= of the 0ct to extend any provision of this 0ct with incidental changes to Ghasi and 8aintia 6ills. &ne urah was tried for murder by the Commissioner of Ghasi and 8aintia 6ills and was sentenced to death. The +uestion was whether these functions would be categori#ed as delegated legislation. The court held that the above mentioned powers were conferred only on the fulfillment of certain conditions and hence this was conditional legislation, a concept all together different from delegated legislation. The court also stated that It is a gen eral principle of law in India that any substantial delegation of legislative authority by the legislature of the country is void?..F. The case thus lays down that substantive delegation i.e. delegation if the important functions are void in India and that delegation, if at all possible would have to be conditional. The three +uestions primarily dealt with whether a law in existence before the independence, after independence or after the Constitution can be extended to another province or area by a notification by the *overnment without legislative deliberation. 4pecifically, they are3The limits of delegation were however not laid down in the above case. Hnder such circumstances confusion arose in respect of the policy to be followed. India looked into the 0merican system, where unlimited power cannot be delegated as a conse+uence of the doctrine of separation of powers, or the /nglish concept where as much power as necessary can be delegated due to the un+uestioned supremacy of the "arliament. It was left open to the courts to follow either one of the models. Inade+uacies of these models lead the Indians to the Constitution in search of an answer. ut even the Constitution was silent about this concept. It was in this under these circumstances that the "resident of India under 0rticle 9:; of the Constitution asked the courts, opinion on the three +uestions. •
1as section < of the Delhi 7aws 0ct, 9F9@, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the 7egislature which passed the said 0ct
4ection < of the Delhi 7aws 0ct, 9F9@, mentioned in the +uestion runs as follows3
< 1<79 9 A6 << e! a!k', ., 6alc&tta H#gh 6o&!t
The "rovincial *overnment may, by notification in the official ga#ette, extend with such restrictions and modifications as it thinks fit to the "rovince of Delhi or any part thereof, any enactment which is in force in any part of ritish India at the date of such notification •
1as the 02mer 5erwara /xtension of 7aws! 0ct, 9F:<, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the 7egislature which passed the said 0ct
4ection @ of the 02mer-5erwara /xtension of 7aws! 0ct, 9F:<, runs as follows3 /xtension of /nactments to 02mer-5erwara.The Central *overnment may, by notification in the official ga#ette, extend to the "rovince of 02mer-5erwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other "rovince at the date of such notification. •
Is section @ of the "art C 4tates 7aws! 0ct, 9FAB, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the " arliament
"ower to extend enactments to certain "art C 4tates.The Central *overnment may, by notification in the &fficial *a#ette, extend to any "art C 4 tate other than Coorg and the 0ndaman and )icobar Islands! or to any part of such 4tate, with such restrictions and modifications as it thinks fit, any enactment which is in force in a "art 0 4tate at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law other than a Central 0ct! which is for the time being applicable to that "art C 4tate. The learned 2udges while delivering their 2udgment, highlighted instances of delegation in 0merica, /ngland, 0ustralia, Canada and some other countries, whose persuasive influence has to be taken into consideration. 4ome of these instances will be dealt with presently.eing a reference case, it is primarily concerned with the different opinions rendered b y the 2udges. The primary reason for this reference can be traced to Jatin$er %ath v. Pro&ince of !ihar '(the case which holds importance with regard to the post-independence period! , where it was held that in India, there could be no delegated legislation beyond conditional legislation. The court in this case held the proviso to sub-section ;! of section 9 of the ihar 5aintenance of "ublic &rder 0ct, 9F:<, ultra vires the ihar "rovincial 7eg islature, by reason of it amounting to a delegation of its legislative power to an extraneous authority, doubts have arisen regarding the validity of the three legislative provisions. The rule against delegated legislation in 0merica has developed as a corollary to the doctrine of separation of power. This is however not an inevitable corollary. It has on several occasions been
1 (1>) 8 C6? @@
relaxed.99 They further added that the same was applicable in 0ustralia. Though its Constitution is based on the separation of power doctrine, it does not stand in the way of delegation. The ritish position was highlighted through %ew South )ales v.*ommonwealth'+ , It is well known in all ritish communities( yet, except in the Hnited 4tates, nowhere it has been held that by itself forbids delegation of legislative power? 9; The situation in Canada has been highlighted by the 2ustices by means of o$-e v. .he ueen'4. 6ere it was argued that the power conferred by the Imperial "arliament on the local legislature should be exercised in full by that body and by that body alone. The maxim $ele-ates non potest $ele-are was relied upon to support the ob2ection. In the Indian context, to explain the situation in the pre-independence period, they have relied on Dicey$s comments. 0ccording to Dicey, the Indian 7egislatures are in short, within their own sphere, copies of Imperial "arliament, they are within their own sphere sovereign bodies, but their freedom of action is controlled by their subordination to the "arliament of the Hnited Gingdom. The trend has not shown much variation in the post-independence era, except for the fact that once India became a free nation, it was no longer under the control of the parliament of H.G. They further went on to say that in the first place, it seems +uite clear that the "rivy Council never liked to commit themselves to the statement that deleg ated legislation was permissible?.they were at pains to show that the provisions impugned before them were instances of delegation of legislative authority, but they were instances of conditional legislation9A which according to them the 7egislatures were competent to enact. ,-ICI+/ &PI0I&0S , Kania
Chief 8ustice Gania, formed part of the minority along with 5aha2an, 8. The Chief 8ustice declared that, whether sovereign or subordinate, the legislative authority can delegate if it stands the three basic tests3 11 #$%$&ton #r$ ' Co$ v. $!.D 87; 3.S. 9> (18<) 18 (1) 1; 6L? ><8 19 e! ?#cha!d,. #n )ew !outh %ales v. Commonwealth 1> E1<<9F A6 117 1@ A" #n the ca"e o *ueen v. urrah+ (1<7<) @ I.A. 17<
9!It must be a delegation in respect of a sub2ect or matter which is within the scope of the legislative power of the body making the delegation. @! 4uch power of delegation is not negatived by the instrument by which the legislative body is created or established( and ;! It does not create another legislative bod y having the same powers and to discharge the same functions which it has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself. 1ith regard to the three +uestions he stated that3 >irstly, The "rovince of Delhi was carved out of the "rovince of "un2ab and was put under a Chief Commissioner and by section @ of the Delhi 7aws 0ct the laws in force in the "un2ab continued to be operative in the newly created "rovince of Delhi. The "rovince of Delhi had not its legislative body and so far as this Chief Commissioner$s "rovince is concerned it is not disputed that the power to legislate was with the *overnor- *eneral in Council in his legislative capacity. 4ection < of the Delhi 7aws 0ct enables the *overnment executive! to extend by notification with such restrictions and modifications as it thinks fit, to the "rovince of Delhi or any part thereof, any enactment which is in force in any part of ritish India, at the date of such notification, i.e., a law which was in force not necessarily in the "rovince of "un2ab only, from which the "rovince of Delhi was carved out, but any Central or provincial law in force in any "rovince In his opinion, therefore, to the extent section < of the Delhi 7aws 0ct permits the Central executive government to apply any law passed by a "rovincial legislature to the "rovince of Delhi, the same is ultra vires the Central 7egislature. To that extent the Central 7egislature has abdicated its functions and therefore the 0ct to the extent is invalid.6e further relies on the landmark 2udgment of ueen v. !urrah'/ . 6e was of the opinion that as far as extension of the laws passed by the Central 7egislature goes, the 0ct maybe said to be v alid, relying on the above mentioned precedent. . It has however, not considered whether the "rovince of Delhi re+uires the rule of conduct laid down in those 0cts, as necessary or beneficial for the welfare of the people of the "rovince or for its government. They are passed by other "rovincial legislatures according to their needs and circumstances It may be noticed that the power to extend, mutatis mutandis, the laws as contained in sections = and F of 0ct EEII of 9=F brings in the idea of adaptation by modification, but so far only as it is necessary for the purpose. Juestion @ relates to 02mer-5erwara /xtension of 7aws! 0ct. Till the *overnment of India 0ct, 9F9A, there was unitary government in India. y the 0ct of 9F9A, "rovincial legislatures were given powers of legislation but there was no distribution of legislative powers between the Centre and the "rovinces. That was brought about only by the *overnment of India 0ct, 9F;A. 1; S&$!a t. >
4ection F: of that 0ct enumerates the Chief Commissioner$s "rovinces. They include the "rovinces of Delhi and 02mer-5erwara. Hnder sections FF and 9BB there was a distribution of legislative powers between "rovinces and Centre, but the word "rovince did not include a Chief Commissioner$s "rovince and therefore the Central 7egislature was the only law-making authority for the Chief Commissioner$s "rovinces. The 02mer-5erwara 0ct was passed under the *overnment of India 0ct as adapted by the Indian Independence 0ct. 0lthough by that 0ct the control of ritish "arliament over the *overnment of India and the Central 7egislature was removed, the powers of the Central 7egislature were still as those found in the *overnment of India 0ct, 9F;A. The Independence 0ct therefore made no difference on the +uestion whether the power of delegation was contained in the legislative power. The result is that to the extent to which section < of the Delhi 7aws 0ct is held ultra vires, section @ of the 02mer-5erwara 0ct, 9F:<, should also be held ultra vires. >inally, with regard to the third +uestion, he states, 0rticle @: deals with the distribution of legislative powers between the Centre and the 4tates but "art C 4tates are outside its operation. Therefore on any sub2ect affecting "art C 4tates, "arliament is the sole and exclusive legislature until it passes an 0ct creating a legislature or a Council in terms of article @:B. "roceeding on the footing that a power of legislation does not carry with it the power of delegation, the +uestion is whether section @ of the "art C 4tates 7aws! 0ct is valid or not. y that section the "arliament has given power to the Central *overnment by notification to extend to an y part of such 4tate "art C 4tate!, with such restrictions and modifications as it thinks fit, any enactment which is in force in "art 0 4tate at the date of the notification. The chief observed that the section although framed on the lines of the Delhi 7aws 0ct and the 02mer-5erwara 0ct is restricted in its scope as the executive government is empowered to extend only an 0ct which is in force in any of the "art 0 4tates. >or the same reasons he considers certain parts of the two sections covered by Juestions 9 and @ ultra vires, that part of section @ of the "art C 4tates 7aws! 0ct, 9FAB, which empowers the Central *overnment to extend laws passed by any 7egislature of "art 0 4tate, will also be ultra vires. To the extent the Central 7egislature or "arliament has passed 0cts which are applicable to "art 0 4tates, there can be no ob2ection to the Central *overnment extending, if necessary, the operation of those 0cts to the "rovince of Delhi, because the "arliament is the competent legislature for that "rovince. To the extent however the section permits the Central *overnment to extend laws made b y any legislature of "art 0 4tate to the "rovince of Delhi, the section is ultra vires. ahaan ,.
8ustice 5aha2an concurred with the views put forward b y the Chief and along with the Chief delivered the minority view in this particular case. The first +uestion relates to section < of the Delhi 7aws 0ct, 9F9@, and concerns its validity in whole or in part. The section gives a carte blanche to the *overnor *eneral to extend to the newly formed province any enactment in force in any part of ritish India at the date of the
notification and not necessarily any enactment in force in ritish India at the date of the passing of the Delhi 7aws 0ct. )o schedule was annexed to the 0ct of the enactments that were in force in any part in ritish India at the date of the passing of the 0ct. 0s regards the enactments that may be in force in any part of ritish India at the date of any notification, there was no knowing what those laws would be. 7aws that were to be made after 9F9@, their principle and policy could not be known to the legislature that enacted section < of the Delhi 7aws 0ct. 6e was of the view that the legislature could neither have exercised its 2udgment, nor its discretion in respect of those laws. It also conferred on the *overnor-*eneral power of modifying ex isting and future enactments passed by different legislatures in the country. The power of modification implies within it the power of amending those statutes. In the 8ustice$s opinion the section conferred a kind of a vague, wide, vagrant and uncanalised authority on the *overnor- *eneral9<. >rom his analysis, it would thus seem that within the wide charter of delegated power given to the executive by section < of the Delhi 7aws 0ct, it could exercise essential legislative functions and in effect it became the legislature for Delhi. This section therefore, in his opinion, ultra vires the Indian Councils 0ct, 9=9, in the following particulars3 i!In as much as it permits the executive to app ly to Delhi laws enacted by legislatures not competent to make laws for Delhi and which these legislatures may make within their own legislative field, and ii! In as much as it clothes the executive with co-extensive legislative authority in the matter of modification of laws made by legislative bodies in India. 6e was however keen to note that had the 7egislature of the adopting country passed this particular law, then it would be valid. In answering the third +uestion, he has ado pted a similar reasoning. 6e held that in this case express power to repeal or amend laws already applicable in "art C 4tates has been conferred on the Central *overnment. "ower to repeal or amend laws is a power which can only be exercised by an authority that has the power to enact laws. It is a power co-ordinate and co-extensive with the power of the legislature itself. In bestowing on the Central *overnment and clothing it with the same capacity as is possessed by the legislature itself the "arliament has acted unconstitutionally.The second +uestion concerns section @ of the 02mer-5erwara /xtension of 7aws! 0ct, 9F:<, which provides for extension of enactments to 02mer-5erwara. The section does not declare any law but gives the Central *overnment power to declare what the law shall be. The choice to select any enactment in force in any province at the date of such notification clearly shows that the legislature declared no principles or policies as regards the law to be made on any sub2ect. It may be pointed out that under the 0ct of 9F;A9= different provinces had the 17 Ibid$ 1< =ove!nment o Ind#a Act, 19@
exclusive power of laying down their policies in respect to sub2ects within their own legislative field. 1hat policy was to be adopted for Delhi, wh ether that adopted in the province of "un2ab or of ombay, was left to the Central *overnment. The exercise of this power amounts to making a new law by a body which was not in the contemplation of the Constitution and was not authori#ed to enact any laws. . 6e thus answered this +uestion in the negative, because the policy of those laws could never be determined by the law making body entrusted with making laws in the present context for Delhi. 1ith these opinions, he held all three 0cts ultra vires. %he inority !ie in the present case was expressed by the above two 2udges. The minority based its view of the theory of legislative omnipotence of the ritish "arliament, and its reflection in the 0ustralian, the Canadian and the Indian Constitutional systems, which includes power to delegate legislative function, sub2ect to the condition of non-abdication. They were of the view that the Constitution has never per se warranted delegation powers at any stage and agreed on the view that legislature can however, conditionally legislate. In doing so it may, in addition, lay down conditions, or state facts which on being fulfilled or ascertained according to the decision of another body or the execution authority, the legislation may become applicable to a particular area. This was described as conditional legislation. al +li ,.
8ustice >a#l 0li has successfully delivered the most convincing argument in favour of delegation. 0long with the other 2udges, he ws of the opinion that delegation is in fact important, and his 2ustifications were based on the following lines. It is a cardinal principle of our system of government that local affairs shall be managed by local authorities and general affairs by the central authority. 4uch legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, sub2ect, of course, to the interposition of the superior in cases of necessity.9F 6e also noted that the 0ct in +uestion does not enact a new law but merely transplants to the territory concerned, laws operative in other parts. 6e further suggested that some safeguards should be implemented, such as a one year time period during which the effectiveness of the delegated function can be 2udged. 6e was however of the opinion that mere absence of the safeguard will not invalidate the said provision and it is thus intra vires.The power delegated in the first instance, i.e. in the case of the Delhi 7aws 0ct, 9F9@ was ministerial in nature such delegation was neither unwarranted on principle nor without precedent.
1 e! C&lle! . #n !toutenburh v. &ennic-
6e relies on the instance of ueen v. !urrah+(. 6e adapts the language used there and a similar reasoning is employed. In the present 0ct, as originally enacted, the agenc y which was to adapt the laws was the *overnor *eneral. In 9F9@, the *overnor-*eneral exercised 2urisdiction over the whole of the territories the laws of which were to be adapted for Delhi. 6e further stated that, !urrahKs case has been accepted by this Court as having been correctly decided, and we may well say that the impugned 0cts are mere larger editions of 0ct EEII of 9=F which was in +uestion in !urrahKs case. Coming to the second 0ct, namely, the 02mer-5erwara /xtension of 7aws! 0ct, 9F:<, we find that when it was enacted on the ;9st December, 9F:<, the *overnment of India 0ct, 9F;A, as adapted by the India "rovisional Constitution! &rder, 9F:<, issued under the Indian Independence 0ct, 9F:<, was in force. Hnder that 0ct, there were three 7egislative 7ists, called the >ederal, "rovincial and Concurrent 7egislative 7ists. 7ists I and II con tained a list of sub2ects on which the Central 7egislature and the "rovincial 7egislature could respectively legislate, and 7ist III contained sub2ects on which both the Central and the "rovincial 7egislatures could legislate. 4ection 9BB:! of the 0ct provided that the Dominion 7egislature has power to make laws with respect to matters enumerated in the "rovincial 7egislative 7ist except for a "rovince or any part thereof. 4ection : ;! stated that the word "rovince, unless the context otherwise re+uired, meant a *overnor$s "rovince. Therefore, section 9BB :! read with the definition of "rovince, empowered the Dominion 7egislature to make laws with respect to sub2ects mentioned in all the three 7ists for 02mer-5erwara, which was not a *overnor$s "rovince. The Central 7egislature was thus competent to legislate for 02mer-5erwara in regard to any sub2ect, and it had also plenary powers in the entire legislative field allotted to it. >urther, at the time the 0ct in +uestion was passed, the Dominion 7egislature was simultaneously functioning as the Constituent 0ssembly and had the power to frame the Constitution. >inally, as far as the third 0ct is concerned, since it is an 0ct post-Constitution, he has relied on 0rticle @:A of the Constitution which lays down that sub2ect to the provisions of this Constitution, "arliament may make laws from the whole or any part of the territory of India, and the 7egislature of a 4tate may make laws for the whole or any part of the 4tate. %eliance was also placed on Hnder article @: :!, which states3 "arliament has power to make laws with respect to any matter for any part of the territory of India not included in L"art 0 or "art M@9 of the >irst 4chedule notwithstanding that such matter is a matter enu merated in the 4tate 7ist. 0t the time, it was recogni#ed that the "arliament derives power from the Constitution and has the power to legislate with respect the "art C 4tates and even though the country has adopted the doctrine of separation of power, this will still not be a bar to the process of delegation. 6e thus 8 S&$!a t. > 81 S&'"t#t&ted w#th Ea StateF ' the 6on"t#t&t#on (Seventh) Amendment Act, 1@; (w.e.. 1-11-1@;)
concluded by stating that There can be no doubt that the powers which have been granted to the *overnment are very extensive and the three 0cts go farther than any 0ct in /ngland or 0merica, but, in my 2udgment, notwithstanding the somewhat unusual features to which reference has been made, the provisions in +uestion cannot be held to be invalid. 6is conclusions can be summed up as3 The legislature, 9. 5ust normally discharge its primary legislative function itself and not through others. @. Can delegate and this power is ancillary to and necessary for the full and effective exercise of its power of legislation ;. Cannot abdicate its legislative functions, and does not become a parallel legislature u6heree ,.
The learned 2ustice commented that it will be noticed that in all the three items of legislation, mentioned above, there has been, what may be described, as conferment by the legislatures, which passed the respective enactments, to an outside authority, of some of the powers which the legislative bodies themselves could exercise( and the authority in whose favour the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws, any restrictions or modifications as it thinks fit. 0s regards constitutionality of the delegation legislative powers, he commented that the Indian 7egislature cannot be in the same position as the omnipotent ritish "arliament and how far delegation is permissible has to be ascertained in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said tha t an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the constitution and the legitimacy of delegation de pends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. "rovided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. 1ith these observation she said, 4ection < of the Delhi 7aws 0ct, 9F9@, and 4. @ of the 02mer5erwara /xtension of 7aws! 0ct, 9F:<, are wholly intra vires and The first portion of 4. @ of the "art C 4tates 7aws! 0ct, which empowers the Central *overnment to extend to an y "art C
4tate or to any part of such 4tate with such modifications and restrictions as it thinks fit any enactment which is in force in a "art 0 4tate, is intra vires. The latter portion of the said section, which empowers the Central *overnment to make provision in any enactment extended to a "art C 4tate, for repeal or amendment of any law other than a Central 0ct! which is for the time being applicable to that "art C 4tate, is ultra vires. Sastri ,.
The learned 2ustice attempts to answer the first two +uestions together3 4ection < of the Delhi 7aws 0ct, 9F9@, fell within the general scope of the affirmative words of section @@ of the Indian Councils 0ct, 9=9, which conferred the law-making power on the *overnor *eneral in Council and that the provision did not violate any of the clauses by which, negatively, that power was restricted. The same line of approach lead the learned 8ustice to the conclusion that section @ of the 02mer-5erwara /xtension of 7aws! 0ct, 9F:<, was also constitutional and valid. This 0ct was passed by the Dominion 7egislature of India, and the governing constitutional provision was section FF 9! of the *ov ernment of India 0ct, 9F;A. The Indian Independence 0ct, 9F:<, authorised the removal of certain restrictions on the lawmaking powers of the Central 7egislature and section 9B= of the Constitution 0ct was omitted( but the material words in section FF 9! which granted the legislative power remained the same, namely, may make laws for the whole or any part of the Dominion. )o doubt, as between the Dominion and the "rovinces there was a distribution of legislative power according to the 7ists in 4chedule NII, but such distribution did not affect the power of the Dominion 7egislature to make laws for what are known as Chief Commissioners$ "rovinces, of which 02mer-5erwara is one. This was made clear by section 9BB :! read with section :. 4ection @ of the impugned 0ct was, therefore a law which the Dominion 7egislature was competent to make and the restrictive words sub2ect to the provisions of this 0ct had no application to the case, as no provision was brought to their notice which affected the validity of the law. There was also some confusion as to the scope and meaning of the words restrictions and modifications. 6e dismissed these contradictions by stating that, however wide a meaning may be attributed to the expression( it would not affect the constitutionality of the delegating statute. Thirdly, section @ of the "art C 4tates 7aws! 0ct, 9FAB, is framed on the same lines as the other two impugned provisions, save for the addition of a clause empowering repeal or amendment of any corresponding law other than a Central 0ct! which is for the time being in force in the 4tate. This additional clause, however, need not detain us, for, if there is no constitutional inhibition against delegation of legislative power under the present Constitution, delegation can as well extend to the power of repeal as to the power of modification and the Court cannot hold such delegation to be ultra vires. The Constitutional validity of the additional clause thus stands or falls with that of the first part of the section and the only +uestion is3 1hat is the position in regard to delegated legislation under the present Constitution
To answer this, the learned 2ustice relies on the positions in 0merica and H.G and states there is no difference between the /nglish and the 0merican decisions on this point. In both countries it is recogni#ed that the correct way of resolving such problems is to look to the terms of the constitutional instrument, and to find out whether the impugned enactment falls within the ambit of the lawmaking power conferred on the legislature which passed the enactment and, if so, whether it transgresses any restrictions and limitations imposed on such power. If the enactment in +uestion satisfies this double test, then it must be held to be constitutional. 6e relies thus on the Constitution and 2ust as the other 2ustices have done, brings to light, at this the context, 0rticles @:A and @::! of the Constitution. 6e states that the 0ct passed by "arliament was in accordance with the prescribed leg islative procedure, and hence there is no reason why it should not be regarded as a law. >urther there is nothing in these provisions which could possibly attract the wrath of "art III of the Constitution. It should thus be considered valid. 6e also dismissed the argument by the council with respect to the 7atin maxim e0pressiounis est e0clusio alterious# 6e was of the opinion that an express provision was not necessary for the process of delegation. >urther, the maxim is not one of universal application, and it is inconceivable that the framers of the Constitution could hav e intended to deny to the Indian 7egislatures a power which, as we have seen, has been recogni#ed on all hands as a desirable. 1ith these observations, he held all three 0cts in their entirety as valid an intra vires. S-+'( & %$* *CISI&0S
The opinions delivered by the 2udges in the present case went on to shape the way the concept of delegation was viewed in India. The 4upreme Court took the following view and the < opinions were based on the same3 •
4eparation of powers is not a part of Indian Constitution.
•
Indian parliament was never considered as an agent of anybody. Therefore doctrine of $ele-ates non potest $ele-are is not applicable.
•
"arliament cannot completely abdicate itself by creating a parallel authority.
•
&nly ancillary functions can be delegated.
•
There is a limitation on delegation of power. 7egislature cannot delegate its essential functions. /ssential functions involve laying down the policy of the law and enacting that policy into binding rules of conduct.
C'I%IC+/ +0+/(SIS
>rom a study of the above 2udicial opinions it is humbly submitted that there is not much material difference between the ma2ority and minority opinion in the present case. The ma2ority is of the opinion that only non-essential functions, i.e. the power of policy making accompanied with annexation of sanction can be delegated even if there is an explicit mention allowing the delegation, while the minority stands firm on its decision that most functions can be delegated, sub2ect to the condition of non-abdication. It has to be noticed here that, the power of abdication@@ is in fact an essential legislative function. The ma2ority has also expressed its view that the 7egislature cannot create a parallel authority with the same powers and functions that it now en2oys. The case has been +uoted as the Bible o# delegated legislation @;. 1hat it means that, it is considered as a comprehensive document on delegated legislation which has clearly laid down the importance and the necessity of delegation and at the same time indicates the safeguards necessary to ensure there is no excessive delegation. It is also to be noted that the subse+uent to this case, there was still some confusion in the air regarding the limits of delegation. The first of such cases which cleared the air was theGwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax 24. The 4tandard test or the "rinciple and policy test was laid down by Ghanna, 8. Principle and Policy %est"
1hen the legislature confers powers on an au thority to make delegated legislation, it must lay down policy, principle or standard for the guideline for the authority concerned. The dec isions regarding the policy matters still rest with the legislature whereas only ancillary decision making functions are delegated. 0t about the same time 5athew, 8. put forward the 0bdication test. +bdication %est"
0s long as the legislature can repeal the parent act conferring power on the delegate, the legislature does not abdicate its powers. This test was however not accepted. 6e subse+uently 88 ean#ng : the act o !eno&nc#ng o! a'andon#ng $!#v#lege" o! d&t#e" e"$ec#all connected w#th h#gh oGce" Black" Law #ct#ona!, th 4dn., 8
89 I..a""e, / Administrative Law”, 4a"te!n Book 6o. 7th edn.,8< at g18
8> (17>) > S66 <
enforced the same in N..!a"ia# !. $xcise Commissioner 2% . Though at this point it is incorrect to test the validity of these tests, it is trite to say that both have their merits and demerits which can clearly be seen from the 2urisprudence of delegation in the Indian setting. >inally the one issue that this case has however not dealt with is 1ho exactly decid es what the essential functions are Nast powers of delegated legislation have been recognised and affirmed in the case with a principled caveat that the essential features of legislative power identified as the power of policymaking accompanied with annexation of sanctions may not be delegated away. This caveat is seldom brought into play by the 4upreme Court of India@. The 0pex court has time and again stated that it is the policy matters that constitute the important non-delegable functions. 6owever this does not provide a fool-proof guarantee to identify the legislative functions that can be delegated. It remains for the courts to decide, in each case as and when the situation arises, what the essential non-delegable functions are and what are not. eing recogni#ed as the sentinel on the 1ui &i&e and because of the paramount obligation imposed upon it by 0rticle 9:9 of the Constitution, which declares that the law made b y the 4upreme Court is the law of the land, the 0pex court has been vested with this all important duty in the hope that 2ustice should not only done but is manifestly and undoubtedly seen to be done@<. The case has been successful in achieving two ends3•
It legitimi#ed delegation of legislative power by the legislature to administrative organs(
•
It imposed an outer limit on delegation by the legislature.
It is thus submitted that the legitimacy of delegation is no longer a +uestion of dispute. The only issue that arises is with respect to the limits imposed upon the delegation. 4everal years after the case at hand it is safe to say that this is an ongoing process. 0s times change and as the n eed of the society change, different limits will have to be cast upon delegation. The different controls will have to be made more stringent and the leash shortened or let loose a s the situation demands. >inally, the present case has formed the foundation on which issues regarding the possibility and extent of delegation of legislation have started to become unambiguous. It has laid down the groundwork and has left it to the 2udicial system to carry forward this fundamental principle. 8@ (17@) 1 S66 >8 8; 3$end!a Ba+# , / .he M/th And 0ealit/ 1" Indian Administrative Law0 a" an #nt!od&ct#on to I..a""e" / Administrative Law”, 7th 4dn..81 87 e! Lo!d 6h#e &"t#ce Hewa!t #n 0 v. !usse2 #ustices, e2 parte Mc Carth/
The case specifically lays down that the ritish or the 0merican model cannot be implemented as such in India. The Indian system, though it has borrowed extensively from other systems round the world, deserves better. It is humbly submitted by this author that, the position in this case be regarded as the Indian model on Delegated 7egislation set forth for other countries to consider.
6oncl&"#on The governmental power is very much essential for a nation to preserve its$ resources and progress among the competing nations. The source of power is the constitution which the people have given to themselves. It is well established that the concentration of power is detrimental to the welfare of peoples. /ven for the sake of convenience of the administration the power has to be distributed among different organs of the government. The main task of the legislature is to pass the legislation. There is a trend in practice at the present time that only a small part of the total legislation originates from the legislature. The bulk of the legislation is promulgated by the /xecutive as a delegate of the legislature, and this is known as delegated legislation. )ormal practice is that the 7egislature passes a law covering general principles relating to the sub2ect matter and confers rule-making power on the *overnment, or on some other agencies of its$ choice. The delegation of legislative power is permissible only when the legislative policy is ade+uately laid down and the delegate is empowered to carry out the policy within the guidelines laid down by the legislature. 0ccording to the doctrine of separation of powers, the legislature cannot exercise executive or 2udicial power( the executive cannot exercise legislative or 2udicial power( and the 2udiciary cannot exercise the other two powers. The "residential form of *overnment in the H.4.0 is based on the doctrine of separation of powers. ut this doctrine is not strictly applied in the Hnited 4tates, and some exceptions to this doc trine are recogni#ed in the Constitution of Hnited 4tates itself. In India, the parliamentary form of *overnment operates and is based on coordination of the executive and the legislature. The 4upreme Court in %am 8awaya Gapu r v. 4tate of "un2ab, held that the Constitution had not indeed recogni#ed the doctrine of separation of powers in its absolute rigidity but the functions of the different branches of the government had been sufficiently differentiated and conse+uently it could be very well said that our Constitution did not contemplate assumption by one organ of the 4tate of functions that essentially belong to another. >irst attempt was made to reconcile the delegation of legislative power with the doctrine of separation of power by using the word K+uasi$ to name +uasi-legislative power. )o matter, to soften a legal term by a K+uasi$ is a time-honoured lawyer$s device, yet, in the sphere of administrative process it becomes illogical to grant legislative and 2udicial powers to administrative agencies and still to deny the name. Therefore, now it is being increasingly reali#ed that the Kcult of +uasi$ has to move from any theoretical prohibition to a rule against
unrestricted delegation circumscribed by the power of 2udicial review u nder the compulsion of modern government. 5ontes+uieu himself never used the word Kseparation$ in his writing. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs of the state is the soul of the doctrine of separation of powers.
