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FACULTY OF LAW, JAI NARAIN VYAS UNIVERSITY, JODHPUR
DISSERTATION “DELEGATED LEGISLATION & ITS JUDICIAL CONTROL : AN ANALYTICAL STUDY”
_______________________________________________ ________________________________ _______________ DOCTRINAL RESEARCH SUBMITTED IN LIEU OF PAPER VII DISSERTATION FOR LL.M. FINAL YEAR SESSION 2016-17 _______________________ ___________________________________ ______________________ ______________________ _______________________ ___________________ ________
UNDER SUPERVISION Prof. V.K. Bagoria Assistant Professor Faculty of Law, JNVU
SUBMITTED BY Shubham Modi LL.M. Final Year Administrative law Roll No- 3
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CERTIFICATE This is to Certify that the dissertation entitled “Delegated
Legislation & Its Judicial Control : An Analytical Study” has been prepared by Shubham Modi under my guidance and supervision. I recommend that above dissertation which is being submitted by Shubham Modi be accepted in fulfilment of the required one paper. He has submitted this dissertation in lieu of paper VII for LL.M. Final under Group K i.e. Administrative law of Jai Narain Vyas University, Jodhpur for the session 2016-2017
Place – Jodhpur Date -
Prof. V.K. Bagoria Assistant Professor Faculty of Law J.N.V.U. Jodhpur
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DECLARATION
I hereby declare that this dissertation entitled “Delegated Legislation & Its Judicial Control : An Analytical Study” was carried out by me in lieu of Paper VII dissertation for LL.M. Final year, session 2016-17 under the guidance and supervision of Prof. V.k. Bagoria at faculty of law J.N.V.U. Jodhpur, Rajasthan, India. The interpretations put forth are based on my reading and understanding of the original texts and they are not published anywhere in the form of books, monographs or articles. The other books, articles and websites, which i have made use of are acknowledged at the respective place in the text. For the present dissertation, which I am submitting to the university, no degree, diploma or distinction has been conferred on me before, either in this or in other university.
Place: Jodhpur Date: 30/04/2017
(Shubham Modi) Student
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ACKNOWLEDGMENT As one lamp lights another, so does knowledge kindles form one person to another Prof. V.K. Bagoria, an Assistant Professor of Faculty of Law. Jai Narain Vyas University, Jodhpur has tremendous potentials and his reservoir of knowledge is ever ready to light the lamps of knowledge of his student. I find no words of potency for expression my gratitude to him. It was he who suggested me to present study. I am full of gratitude towards him. I am extremely grateful for his able guidance valuable suggestions, readiness to help, giving proper shape
to
this
dissertation
and
parental
behaviour
which
contributed immensely in completion of this work. Further, I put on record my gratitude to Dr. Chandan Bala, Dean and Head of Law Faculty Jai Narain Vyas University, Jodhpur for permitting me to work on this topic and availing all facilities required in this regard. I express my gratitude to respected teachers of Law Faculty, and particularly to Professor Dr. V.K. Sharma, Associate Professor Dr. Sunil Asopa, Assistant Professor Dr. S.P. Meena, Dr. Nidhi Sandal, Dr. Dalpat Singh, Mr. P.K. Musha, Mr. Kuchata Ram, Mr. V.K.
Meena
for
their
academic
patronage
and
persistent
encouragement extended to me. Thanks are also due to the library staff of Law Faculty, and Office staff of Law Faculty, Jai Narain Vyas University, Jodhpur.
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INDEX S.NO.
PARTICULARS
PAGE NO.
1.
List of cases
7-12
2.
Abbreviation
13
3.
CHAPTER -1 Meaning, Nature, Scope And Development Of Delegated Legislation I. Introduction II. Definitions III. Scope of delegated legislation IV. Types of delegation of legislative power in india V. Essential characteristics of delegated legislation VI. The need for delegated legislation VII. Advantages of delegated legislation VIII. Delegated legislation as distinguished from administrative power IX. Sub-delegation X. Merits of delegated legislation XI. Demerits of delegated legislation
4.
CHAPTER - 2 Causes of Growth of Delegated Legislation I. Pressure upon Parliamentary time II. Technicality
14 - 29
14 17 19 21 23 24 25 25 26 27 28 30 - 33 30 30
III. Flexibility
31
IV. Experimentation
31
V. Emergency VI. Confidential matters VII. Complexity of modern administration
31 32 32
VIII. Confidential matters
32
IX. Complexity of modern administration
32
5.
CHAPTER - 3 TYPES OF DELEGATED LEGISLATION
34 – 41
I.Rule II.Regulation
34 34
III.Bye-Law
36
IV. Order
36
V.Notification
37 Page | 5
VI.Scheme
37
VII.Proclamation VIII.Resolution 6.
37 38
CHAPTER – 4 CONDITIONAL LEGISLATION I. Privy Council and conditional legislation
42 – 49 42
II. Federal Court and Conditional Legislation
43
I I I . Supreme Court and Conditional Legislation
43
IV. Liberalisation of the concept of conditional legislation.
44
V. American Supreme Court and Contingent Legislation.
45
VI. Conditional Legislation Distinction VII. Subordinate Legislation
and
Delegated
Legislation
– 45
VIII. General observations 7.
47
CHAPTER – 5 SUB- DELEGATION I.Object II.Express Power III.Implied Power IV.Concurrent Jurisdiction V. Three Sub-Heads
50 – 59 50 51 52 52 53
VI.Control Of Sub-Delegated VII.Criticism 8.
46
CHAPTER - 6 Restraints On Delegation of Legislative Power I.Excessive Delegation : Permissible Limits II.Classification of Delegated Legislation III.Impermissible Delegation
57 58 59 – 83 59 66 67
a)
Amplification of policy
67
b)
Modification
71
c)
Removal of difficulties
73
d)
Inclusion and Exclusion
77
e) 9.
Taxation CHAPTER – 7
79 84-101
COMPARATIVE ANALYSIS OF DL AMONG ENGLAND, USA AND INDI
I.ENGLAND II.U.S.A. III.INDIA
84 86 94 Page | 6
CHAPTER – 8 Judicial Control over Delegated Legislation
10.
I.Doctrine of ultra vires II.Circumstances I. II. III.
Delegated legislation in conflict with the parent act Delegated legislation in excess of the power conferred by the parent act Where delegated legislation is ultra vires the parent act
IV.
Where delegated legislation is ultra vires the constitution
V. VI.
Where parent act is ultra vires the constitution
VII.
Delegated Legislation in conflict with the procedure of the parent act Malafide : bad faith
III.
Unreasonableness
IX.
Pragmatism
III.Judicial review IV.Procedural irregularities V.Saving clauses VI.Statutory rules, if binding 11.
CHAPTER -9
102-143
104 105 105 107 109 111 115 117 118 119 124 126 131 141 143 144 - 147
Conclusion 12.
Bibliography
148
13.
Website Research
149
14.
NON-DOCTRINAL RESEARCH DELEGATED LEGISLATION & ITS JUDICIAL CONTROL : AN ANALYTICAL STUDY
150-175
a) Views of Senior Advocate and Advocates at Rajasthan High Court with regard to delegated legislation and judicial control. b) Judicial function can be delegated to Administration c) Henry clause applies in autonomous University d) Administrative function of country
151
162 163 166
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LIST OF INDIAN CASES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.
A.K. Roy V. Union Of India A.V. Nachane V. Union Of India Adarsh Industrial Corporation V. Marketing Committee Afzal Ullah V. State Of U.P. Agricultural Market Committee V. Shalimar Chemicals Works, Air India V. Nargesh Meerza Ajaib Singh V. Gurbachan Singh Ajay Hasia V. Khalid Mujib Ajoy Kumar Banerjee V. Union Of India Also Brij Sunder V. First Additional District Judge, Arvinder Singh V. State Of Punjab Asstt. Collector Of Central Excise V. Ramakrishna Babu Ramv. State Of Punjab Balakotiah V. Union Oflndia Bamoari Lai V. State Of Bihar Banarasi Das V. State Of M.P Bangalore W.C. Mills V. Bangalore Corporation Banwarilal Agarwalla Vs The State Of Bihar Bar Council Of India V. Surjeet Singh Barium Chemicals Ltd. V. Company Law Board Basant Kumar V. Eagle Rolling Mills Beni Prasad V. Jabalpur Improvement Trust Bennett Coleman Co. Ltd. V. Union Of India Berar Swedeshi Vanaspati V. Municipal Committee, Skcgaon Bhatnagar & Co. V. Union Of India Bombay Municipal Crpn. V. Thondu Brajendra Kumar V. Union Of India Central Inland Water Transport Corporation V. Brojo Nath Ganguly Central Talkies Ltd. V. Dwarka Prasad Chandra Bali V. R Chief Commissioner V. R.S.Dani Chintaman Rao V. State Of Madhya Pradesh Corporation Of Calcutta V. Liberty Cinema Council Of Legal Aid And Advice V. Bar Council Of India D.S. Mills V. Union Of India D.T.U. V. Hajelay Darshan Lai Mehra V. Union Of India Daya V. Joint Chief Controller Of Imports And Exports Delhi Municipal Corporation V. Birla Cotton Spinning & Wvg. Mills Devi Das Copal Krishan V. State Of Punjab District Collectoi Chittor V. Chittor District Ground Nut Traders Association Page | 8
42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85.
Diwan Sugar Mills V. Union Of India Dwarka Nath V. Municipal Corporation, Dwarka Parsad Laxminarain V. State Of U.P. Edward Mills Co. V. State Of Ajmer Edward Mills V. Stale Of Punjab, Emperor V. Banwari Lal Gammon India Ltd. V. Union Of India Ganapati Singh V. State Of Ajmer General Officer Commanding-In-Chief V. Subhash Chandra Yadav Godavari V. State Of Maharashtra Gullapalli Nageswara Rao V. A.P.S.R.T.C. Gwalior Rayon Gwalior Rayon Silk Mfg. Co. V. Asstt. Commissioner Hamam Singh V. Regional Trt Authority Hamaraov. Union Territory Of Pondicherry Hamdard Dawakhana V. Union Of India Haniraj L. Chulani (Dr.) V. Bar Council Of Maharashtra And Goa. Harakchand v. Unionof India Hari Shankar Bagla V. State Of Madhya Pradesh Harishankar Bagla V. State Of M.P. Himmat V. Commissioner Of Police I.T.W. Signode India Ltd. V. C.C.E., Ibrahim V. Regional Transport Authority Inder Singh V. State Of Rajasthan Indian Express Newspapers (Bombay) Ltd. V. Union Of India Indravadan V. State Of Gujarat Ishwar Singh V. State Of Rajasthan Izhar Ahmad V. Union Of India J. R. G. Manufacturing Association V. Union Of India, J.A. Shodan V. FN Rana, Jalan Trading Co. V. Mill Mazdoor Sabha Jatindra Nath Gupta V. Province Of Bihar K. Panduranga V. State Of Andhra Pradesh K.J. Thomas V. Commissioner Of Income-Tax Kerala State Electricity Board V. Indian Aluminium Kerala State Electricity Board V. Indian Aluminum Company Kunj Behari Lai Butel V. State Of H.P. Labh Chandra V. State Of Bihar Lachmi Narain V. Union Of India Latafat AH Khan V. State Of Uttar Pradesh M.G. Pandke V. Municipal Council,-Hinganghat, Maharashtra Board Of S. H. S. E. V. Paritosh Mahe Beach Trading Company V. Union Territory Of Pondicherry Major Radha Krishan V. Union Of India And Others Page | 9
86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129.
Makhan Singh V. State Of Punjab Manepalli Venkatanarayanav. State Of A.P Marathawad University V. Sheshrao Meenakshi V. University Of Delhi Mittal V. Union Of India Mohamed Ali V. Union Of India Mohammad Faruk V State Of Madhya Pradesh Mohammad Hussain V. State Of A.P., Mohd. Yasin V. Town Area Committee Mohini Jain V. State Of Karnataka Mulchand Gulabchandv. Mukumd S Hivram, Mulchand V. Mukand, Munrta Lai V. H.R. Scott Munsha Singh Dhaman Singh V. State Of Punjab N.K. Papiah V. Excise Commissioner Nagraj V. State Of A. P Narain Iyer V. Union Of India Naraindas V. State Of M.P. Narendra Kumar V. Union Of Lndia Om Prakash V. State Of U.P., Orient Weaving Mills V. Union Of India P.V. Sivarajan V. Union Of India Parasuraman V. State Of Tamil Nadu Parvet Qadir V. Union Of India, Prag Ice And Oil Mills V. Union Of India. Pramod K. Pankaj V. State Of Bihar Quarry Owners Association V. State Of Bihar Radha Krishna V. State Radhakrishan V. State Rai Narain Singh V. Chairman, Patna Administration Committee Raja Buland Sugar Co. V. Rampur Municipality Ram Chandra Kachardas Porwal V. State Of Maharashtra Ram Prasad V. State Ramesh Birch V. Union Of India, Ravulu Subba Rao V. Commissioner Of Income-Tax, Raza Buland Sugar Co. V. Rampur Municipality Re Delhi Laws Act Case, Reghubar Dayal V. Union Of India Registrar Co-Op. Societies V, Kunjabmu Romesh Mehta V. Sanwal Chand Singhvi, S. Avtar Singh V. State Of Jammu And Kashmir S. B. Yadava V. State Of Haryana 'S. Samuel M.D. Harrison Malayalam V. Union Of India Sahni Silk Mills Ltd. V. ESI Corpn. Page | 10
130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164.
Sales Tax Officer V. Abraham Shahabuddin Khan V. State Of U.P. Shama Rao V. Union Territory Of Pondicherry Sinai V. Union Of India Sita Ram Bishambhar Dayal V. State Of Uttar Pradesh Sitapur Municipality V. Prayag Narain Sivarajan V. Union Of Lndia Sri Ram V. State Of Bombay St. Johns Teachers Training Institute V. Regional Director, National Council For Teacher Education State Of A.P. V. Mcdowell And Co State Of Karnataka V. Ganesh Kamathr State Of Maharashtra V. Chandr. Bhan State Of Maharashtra V. Raj Kumar State Of Nagaland V. Ratan Singh State Of Punjab V. Devana Modern Breweries Ltd. State Of T.N. V. Hind Stone State Of T.N. V. K. Sabanayagam Stateof Kerala V. K.G. Abdin Sukhdev Singh V. Bhagat Ram Supreme Court Employees’ Welfare Association V. Union Of India Swadeshi Cotton Mius Ltd. V. State Industrial Tribunal, T.B. Ibrahim V. Regional Transport Authority T.B. Ibrahim V. Regional Transport Authority Tahir Hussain V. District Board Muzaffarnagar Tata Iron And Steel Co. Ltdy. Their Workmen, Trust Mai Lachmi Sialkot Biradri V. Amritsar Improvement Trust Tulsipur Sugar Company V. Notified Area Committee, Tulsipur Union Of India V. Cynamide India Ltd. V. Nagappa V. Iron Ore Mines Cess Commissioner V. Sundeerv. Bar Council Of India Vasanlal Maganbhai V. State Of Bombay Vasin V. Town Area Committee Venkateswara V. Government Of A.P. West Bengal State Electricity Board V. Desh Bandhu Ghosh,' Western India Theatres Ltd. V. Municipal Corporation
LIST OF FOREIGN CASES Kruse v. Johnson 166. F.C.C. v. American Broad Casting Co. 167. Manhattan Gen. Equipment Company v. Commissioner 168. Barnard v. National Dock Labour Board 165.
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169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198.
Blackpool Corpn. V. Locker Cobb v. Kropp Fahey v. Mallonee Federal Energy Amin. v. Algonquin,, Field v. Clark hitcher v. United States Industrial Deptt. v. American Petroleum Institute Institute of Patent Agent v. Lockwoods, Jackson v. Butterworth, Jackson v. Butterworth, Kruse v. Johnson Local Govt. Board v. Arlidge, Me Eldowney v. Forde, Mistretta v. United States Morgan v. U.S. Morgan v. U.S. Murray v. Hoboken, National Broadcasting Co. v. U.S Puckley v. Valeo, Queen v. Burah R. v. Comptroller-General of Patents R. Vs. Burah (1878) 3 AC 889. Runkle v. U.S., Schechter Poultry Corporation v. United States Springer v. Philiphine Islands States v. Baren, White v. Morley Whiteman v. American Trucking Assn. Yakus v. U.S. Youngs Town Sheet and Tube Co. v: Sawyer
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LIST OF ABBREVIATIONS
AC -Appeal Case
ACJ – American Communication Journal
AIR - All India Reporter
All - ALLAHABAD
ALL ER- All England Law Reports
Art- Article
AP- ANDHRA PRADESH
Bom - BOMBAY
Cal - CALCUTTA
Ch- Chapter
Co.-Company
Del - DELHI
Edn-Edition
HL-House of Lords
K.B. - KINGS BENCH
M.P.-Madhya Pradesh
Maha- Maharashtra
p. - PAGE
Para- paragraph
Pat - PATNA
PC - PRIVY COUNCIL
QB –Queen’s Bench
SC-Supreme Court
Pun -PUNJAB AND HARYANA
SCC-Supreme Court Cases
SCR- Supreme Court
U.P. - UTTAR PRADESH
W.L.C. - WESTERN LAW CASES
Page | 13
DELEGATED LEGISLATION & ITS JUDICIAL CONTROL : AN ANALYTICAL STUDY CHAPTER -1 MEANING, NATURE, SCOPE AND DEVELOPMENT OF DELEGATED LEGISLATION
1. INTRODUCTION -
The issue of delegated legislation has been one of the most debated issues in the domain of legal theory because of its various implications. Scholars have consistently presented differing and even contradicting views about delegation of power to legislate and have thus taken different stands on the issue. While Delegated Legislation has been a widespread practice in modern times and is almost an accepted norm, there have been contrary views. For instance Cooley has expressed a staunchly critical view of the power to delegate. He has stated that "One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." Further he has also observed that "No legislative body can delegate to another department of the government, or to any other authority, the power, either generally or specially, to enact laws. The reason is found in Page | 14
the very existence of its own powers. This high prerogative has been entrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it." While such positions do raise the questions about the propriety of delegating the power to legislate by higher legislative bodies to the lower ones, the fact remains that this has been a general practice followed in all modern democratic countries. Hence it is important to understand what is firstly meant by delegated legislation and then analyse its various aspects.
Legislative power of the Administration & Delegated Legislation means the power given to the administrative authority by the Legislature to make rules, regulations, like provisions on certain matters. It may be defined as the law-making power of the Executive or administrative authority. It is briefly known as "delegated legislation". It has also been described as "outsourcing of law-making power".
Subordinate Legislation
"Delegated legislation" is also called "Subordinate Legislation". Distinguishing between "Supreme Legislation" and "Subordinate Legislation",
Salmond1 explains :
“Subordinate legislation is the legislation made by the authority other than the supreme authority in the State, in the exercise of the power delegated to it, by the supreme authority.”
The subordinate legislation, says Salmond, "is dependent on some superior or supreme authority for its continued existence and validity." It thus follows that the authority which makes the legislation (subordinate legislation) in the exercise of the legislative power delegated to it by the Legislature, is subordinate to the Legislature and the power of the 1 Jurisprudence, 12th edn., 116.
Page | 15
authority is limited by the Statute by which the delegation has been made. 2 Thus, the rules, by-laws, regulations, notifications, orders, etc., made by the Executive or other administrative authorities, in the exercise of the powers conferred by the Legislature is known as subordinate legislation. Sir Cecil Carr defines – “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 parent managers the main business. The delegated legislation is so multitudinous that the statute book would not only be incomplete but mi sleading unless it be read along with the delegated legislation which implies and amends it.”
Delegated Legislation — Executive Legislation Delegated legislation may be distinguished from Executive Legislation. The former refers to the legislation made by the authorities other than the Legislature to whom the Legislature delegates its legislative power, while the latter stands for the legislative power conferred on the Executive by the Constitution itself. It thus follows that the legislation made by the Executive in the exercise of power confers on it expressly by the Constitution, is not delegated legislation, but strictly speaking, it is original legislation. For instance, Ordinances promulgated by the President under Article 123 or by the Governor under Article 213 are expressly declared to have the same force and effect as a law enacted by the respective Legislature. 3 It may further be stated that while the source of delegated legislation is always an Act of the Legislature, the source of the Executive Legislation is a provision of the Constitution. Further, that delegated legislation to be constitutionally valid is to comply with the guidelines traced through judicial pronouncements interpreting general principles in this respect while a piece of Executive Legislation is required to be consistent with the provisions of the constitution. 2 Supra ,Jain & Jain 3 See Clause (2) of Article 123 and CI. (2) of Article 213.
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I. DEFINITIONS I.
“Delegated Legislation means the exercise of legislative power by an agency which is subordinate to the legislat ure”
II.
“Delegated legislation is, at times, referred to as Ancillary, Subordinate, Administrative Legislation or as Quasi- Legislation”.
III.
“Delegated legislation is a technique to relieve pressure on legislature’s time so that it can concentrate on principles a nd formulation of policies.” Delegated legislation means legislation by authorities other than the Legislature, the former acting on express delegated authority and power from the later. Delegation is considered to be a sound basis for administrative efficiency and it does not by itself amount to abdication of power if restored to within proper limits. The delegation should not, in any case, be unguided and uncontrolled. Parliament and State Legislatures cannot abdicate the legislative power in its essential aspects which is to be exercised by them. It is only a nonessential legislative function that can be delegated and the moot point always lies in the line of demarcation between the essential and nonessential legislative functions. The essential legislative functions consist in making a law. It is to the legislature to formulate the legislative policy and delegate the formulation of details in implementing that policy. Discretion as to the formulation of the legislative policy is prerogative and function the legislature and it cannot be delegated to the executive. Discretion to make notifications and alterations in an Act while extending it and to effect amendments or repeals in the existing laws is subject to the condition precedent that essential legislative functions cannot be delegated authority cannot be precisely defined and each case has to be considered in its setting. Halsbury's Law of England,
4
explains that when an instrument of a
legislative nature is made by authority other than the Legislature, it is called delegated legislation. To put in simple terms delegated legislation refers to all law-making, which takes place outside the Legislature. It is generally expressed as rules, regulations, orders, by-laws, directions, scheme, notifications, etc. 4 4th Edn., 44, 981-84
Page | 17
Salmond puts delegated legislation 5 as —
“That, which proceeds from any authority other than sovereign power and is therefore, dependent for its continued existence and validity on some superior or supreme authority.” The word 'delegate' is distinguished from the term 'delegation'. While delegate' is stated to mean a person who is appointed, authorized, delegated or commissioned to act in the stead of another, the term "delegation" means instructing another with a general power to act for the good of those who depute him or it means transfer of authority by one person to another. 6 In this sense, delegated legislation means he conferring authority of law-making upon someone else,7 i.e., on administrative authorities. Jain and Jain explained the expression in the following two senses 8 :
The exercise by a subordinate agency of the legislative power, delegated to it by the Legislature;
The subsidiary rules themselves, which are made by the subordinate agency, in pursuance of the power as mentioned in (a). The expression is meant to have both the meanings. It may be stated to be "legislation by the authorities other than the Legislature", which takes place outside the Legislature and is generally expressed as rule, regulation, order by-law, direction, scheme, etc.9 The Supreme Court in Hamdard Dawakhana v. Union of India 10 explains : "When the delegate is given power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the 5 Salmond, Jurisprudence, 12th Edn., 116, quoted in Agricultural Marketing Committee v.Slialimar Chemicals Works, AIR 1997 SC 2502. 6 Black's Law Dictionary, 6th Edn., quoted in Ishwar Singh v. State of Rajasthan, AIR 2005 SC 773. 7 For detailed discussion, see Ishivar Singh v. State of Rajasthan, AIR 2005 SC 773. 8 Principles of Administrative Law, 2008, 42.However when the delegate has exercised the power delegated, there Agricultural Market Committee v. Shalimar Chemicals Works, AIR 1997 SC 2502. 9 Agricultural Market Committee v. Shalimar Chemicals Works, AIR 1997 SC 2502. 10 AIR 1960 SC 554, quoted in State of T.N. v. K. Sabanayagam, AIR 1998 SC 344. Page | 18
legislation, the manner in which the requirements of the Statute are to be met and the rights therein created to be enjoyed, it is an exercise of delegated legislation. The Donoughmore Committee on Ministers' Powers , appointed in England in 1929, to consider, inter alia, the powers exercised by die Ministers by way of "delegated legislation" 11 also explained the expression in the following two senses — 1. The exercise of law-making power by the executive under the authority delegated to it by the Parliament; and
2. The rules, regulations, by-laws, etc., made by the executive in the exercise of the law making power delegated to it by Parliament. Stating in the above way, Jain & Jain say that as administrative lawyers, "we are more interested in the 'technique', rather than the actual rules made, and so the expression 'delegated legislation' is used here primarily in the first sense", i.e., the exercise of legislative power by a subordinate agency. 12
II. In
SCOPE OF DELEGATED LEGISLATION order
to
avoid
the
dangers,
the
scope
of
delegation
is
strictly
circumscribed by the Legislature by providing for adequate safeguards, controls and appeals against the executive orders and decisions. The power delegated to the Executive to modify any provisions of an Act by an order must be within the framework of the Act giving such power. The power to make such a modification no doubt, implies certain amount of discretion but it is a power to be exercised in aid of the legislative policy of the Act and cannot
i)
travel beyond it, or
ii)
run counter to it, or
iii)
Certainly change the essential features, the identity, structure or the
policy of the Act. 11 See P.P. Craig, Administrative Law, 2007, 67. 12 Jain and Jain supra note 5, 42.
Page | 19
Under the constitution of India, articles 245 and 246 provide that the legislative powers shall be discharged by the Parliament and State legislature. The delegation of legislative power was conceived to be inevitable and therefore it was not prohibited in the constitution.
Further, Articles 13(3)(a) of the Constitution of India lays down that law includes any ordinances, order bylaw, rule regulation, notification, etc. Which if found in violation of fundamental rights would be void. Besides, there are number of judicial pronouncements by the courts where they have justified delegated legislation.
For e.g. In re Delhi Laws Act case 13 , Vasantlal Magan Bhaiv vs State of Bombay 14 and S. Avtar Singh v. State of Jammu and Kashmir 15 .
While commenting on indispensability of delegated legislation Justice Krishna Iyer has rightly observed in the case of Arvinder Singh v. State of Punjab16, that the complexities of modern administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislature may not get off to a start if they must directly and comprehensively handle legislative business in their plenitude, proliferation and particularization Delegation of some part of legislative power becomes a compulsive necessity for viability. A provision in a statute which gives an express power to the Executive to amend or repeal any existing law is described in England as Henry viii Clause because the King came to exercise power to repeal Parliamentary laws. The said clause has fallen into disuse in England, but in India some traces of it are found here and there.
Example, Article 372 of the Constitution authorizes the president of India to adopt pro Constitutional laws, and if necessary, to make such adaptations 13 14 15 16
AIR AIR AIR AIR
1961 1961 1977 1979
Supreme Court 332 SC 4 J&K 4 SC 321
Page | 20
and modifications, (whether by way of repeal or amendment) so as to bring them in accord with the provisions of the Constitution. The State Reorganization Act, 1956 and some other Acts similar thereto also contain such a provision. So long as the modification of a provision of statute by the Executive is innocuous and immaterial and does not affect any essential change in the matter.
III.
TYPES OF DELEGATION OF LEGISLATIVE POWER IN INDIA
There are various types of delegation of legislative power.
1. Skeleton delegation In this type of delegation of legislative power, the enabling statutes set out broad principles and empowers the executive authority to make rules for carrying out the purposes of the Act. A typical example
of
this
kind
is
the
Mines
and
Minerals
(Regulation
and
Development) Act, 1948.
2. Machinery type This is the most common type of delegation of legislative power, in which the Act is supplemented by machinery provisions, that is, the power is conferred on the concerned department of the Government to prescribe –
i)
The kind of forms
ii)
The method of publication
iii)
The manner of making returns, and
iv)
Such other administrative details
In the case of this normal type of delegated legislation, the limits of the delegated power are clearly defined in the enabling statute and they do not include such exceptional powers as the power to legislate on matters of principle or to impose taxation or to amend an act of legislature. The exceptional type covers cases where
i)
the powers mentioned above are given , or Page | 21
ii)
the power given is so vast that its limits are almost impossible of definition, or
iii)
while limits are imposed, the control of the courts is ousted.
Such type of delegation is commonly known as the Henry VIII Clause. An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912 by which the Provincial Government was authorized to extend, with restrictions and modifications as it thought fit any enactment in force in any part of India to the Province of Delhi. This is the most extreme type of delegation, which was impugned in the Supreme Court in the Delhi Laws Act case17. It was held that the delegation of this type was invalid if the administrative authorities materially interfered with the policy of the Act, by the powers of amendment or restriction but the delegation was valid if it did not effect any essential change in the body or the policy of the Act. That takes us to a term "bye-law" whether it can be declared ultra vires? if so when?
Generally under local laws and regulations the term bye-law is used such as
i)
public bodies of municipal kind
ii)
public bodies concerned with government, or
iii)
corporations, or
iv)
societies formed for commercial or other purposes.
The bodies are empowered under the Act to frame bye-laws and regulations for carrying on their administration. There are five main grounds on which any bye-law may be struck down as ultra vires. They are :
a) That is not made and published in the manner specified by the Act, which authorises the making thereof; b) That is repugnant of the laws of the land; c) That is repugnant to the Act under which it is framed;
17 . A.I.R. 1951 S.C.332
Page | 22
d) That it is uncertain ; and e) That it is unreasonable.
IV.
Essential characteristics of Delegated Legislation :
1. The rules should contain short titles, explanatory notes, reference to earlier amendments, etc. for clear understanding. 2. No extra-ordinary delay shall occur in making the subordinate legislation. 3. The administrative authority should not travel beyond the powers given in Parent Act. 4. Essential legislative functions cannot be delegated. 5. Sub-delegation (Delegatus non protest delegare) is not encouraged. 6. General rules should not be framed with retrospective operation, unless and until the parent Act instructs to do so. 7. Discriminatory and arbitrary rules should not be framed. 8. Wide and sufficient publicity shall be given so that general public can know it. 9. In appropriate cases, consultation also shall be made for more effectiveness and efficiency. 10. The Sub-ordinate authorities should not use rigid, crux and technical language
while
preparing
the
rules,
which
may
cause
difficulty
to
understand by general public. 11. The final authority of interpretation of the subordinate rules is vested to Parliament
and
Courts.
But
the
administrative
authorities
are
not
empowered and authorised to interpret the statutes. 12. A tax or financial levy should not be imposed by rules. 13. Wherever it is necessary, the explanatory notes shall be given. Page | 23
14. Public interest must be kept in view while delegating the powers, etc. IV.
THE NEED FOR DELEGATED LEGISLATION Delegated legislation is necessary for a number of reasons: parliament
does not have time to contemplate and debate every small detail of complex regulations, as it only has a limited amount of time to pass legislation, delegating legislation will allow however thoroughly debated regulations to pass through as well as saving parliamentary time.
Delegating legislation allows law to be made more quickly than parliament, which is vital for times of emergency. Parliament takes longer as it does not sit all the time and its procedures is generally quite slow and complex due to the several stages each bill has to pass through. Delegated legislation can also be amended or revoked relatively easily, so that the law can be kept up to date and so that the law can meet future needs that arise such as areas concerning welfare benefits, illustrating a great deal of flexibility in the system . Otherwise statutes can only be amended or revoked by another complicated and time-consuming statute. MPs do not usually have the technical knowledge/expertise required in for
example
drawing
up
laws
on
controlling
technology,
ensuring
environmental safety, and dealing with different industrial problems or operating complex taxation schemes whereas delegated legislation can use experts who are familiar with the relevant areas. • Another need of delegated legislation is that parliament may not always be the best institution to recognise and deal with the needs of local people. As a result local people elect councillors from certain districts and it is their responsibility to pass legislation in the form of by-laws to satisfy local needs.
V. •
•
•
ADVANTAGES OF DELEGATED LEGISLATION
Saves limited time in Parliament; Allow rapid change; MP's lack detailed or technical knowledge. E.g. Specific details in Abortion Act , Road Traffic detail Page | 24
•
Quick response to new developments, e.g. Foot and Mouth outbreaks. The Prevention of Terrorism (Temporary Provisions) Act allows the quick addition of new prohibited groups.
•
Enables minor changes to statutes, e.g. Variations in sentences, approval of motor vehicle changes.
•
Judicial review may be sought, by parties with with Locus Standi (i.e. Persons sufficiently affected by the legislation), so time is not wasted by Parliament considering them all.
VI.
DELEGATED LEGISLATION AS DISTINGUISHED FROM ADMINISTRATIVE ADMINISTRATIVE POWER As is usual, the action by the administration is classified into
“administrative,” “Legislative”, “Judicial” or “quasi - - judicial”. judicial”. Although thoughtful scholars decry such a conceptual classification of functions, the fact remains that in the present state of administrative law it is not possible to do away completely with such exercise of labelling. For instance, distinction between administrative, Quasi-judicial, and legislative function is meaningful inter alia because because of the following factors : (i) Publication If an order is legislative in character, it has to be published in a certain manner, but publication is not necessary if it is of an administrative nature. An administrative order refers to a particular individual and in this respect it is required to be served only on the individual concerned. (ii) Principles of natural justice In the case of adjudication, the administration is required to follow the principles of natural justice, while in case of legislation no such requirement is necessary. (iii) Grounds of judicial review. An administrative action may be challenged on the ground of mala fides. fides. But it is unlikely for such a challenge to prevail in case of delegated legislation.
Page | 25
(iv) Duty to give reasons The requirement of duty to give reasons applies to administrative orders but not to legislative legislative orders. (v) Sub-delegation Differences between legislative and administrative actions also may become significant when questions of sub-delegation of powers arise. Only in most exceptional circumstances can legislative powers be sub-delegated, but administrative powers can be sub-delegated. Subject to what has been stated above, according to one test, the extent of applicability of the act should be determined. A power to make rules of general “applicability” is “legislative”, while a power to make orders in specific cases is “administrative". 18 As de Smith 19 observes : “A distinction often made between legislative and administrative acts is that between general and particular.” With the help of this test it is possible to distinguish legislative function from administrative action in a large number of cases, but then there are cases where the test may break down for it is not easy to distinguish “general” from “particular". 20 The difficulty here is that of distinguishing what is ‘general’ from what is ‘particular’, as the difference is only a matter of degree. In India, the courts have proceeded so far on the basis that a power to fix prices is administrative rather than legislative in nature. 21 22 But in Union of India v. India v. Cynamide India Ltd.23 price fixation was held to be legislative action. The power to fix tax rates is treated as legislative. 24 Extension of limits of town area committee is held to be legislative function. 25
18 19 20 21 22 23 24 25
Schwartz, American Administrative Law, 108 (1962). Judicial Review of Administrative Administrative Action, 17 (1980). Griffith and Street, Principle Principle of Administrative Administrative Law, 696 (1977). Dwarka Prasad v. Slate of U.P., AIR 1954 1954 SC 224 Diwan Sugar Mills Mills v. Union of India, India, AIR 1959 SC. 626. AIR 1987 SC 1802. 1802. Corporation of Calcutta Calcutta v. Liberty Cinema, AIR AIR 1965 SC 1107. Tulsipur Sugar Sugar Company V. V. Notified Area Committee, Tulsipur, AIR 1980 SC 883. Page | 26
MERITS OF DELEGATED LEGISLATION 26
a. Mitigates Time- Time- There are many activities in which the government should be concerned about. If every law making authority has been taken by the parliament, it takes a lots time. In such cases parliament delegates the law making power to the executive. This is because of the lack of time or the capacity in making laws for regulation.
Flexibility- Every administration has been created by statutes. Each and b. Flexibility- Every every administration has its own legislation and it is adaptable to various circumstances.
Only
the
administration 16 knows
the
day
to
day
happenings and the new regulation will be made according to it.
Actions- Every administration with required discretion c. Emergency Actions- should be better in dealing with the possible contingencies. If an emergency law is to be created suddenly in the administration the concept of delegated legislation arises.
d. Close Contact with Science and TechnologyTechnology - The development of science and technology has resulted in various functions in the modern state. Due to rapid development of science and technology the legislature cannot be the same. It should be transformed from the legislature to the executive17.
e. Administrative Legislation- The Legislation- The legislation which is been drafted by the administration should be useful and familiar with their own departments. Only when there is proper legislation the workers may work better compared to the lay members comprising the legislature.
26 DELEGATED LEGISLATION S. Varun School School Of Excellence Excellence In Law, Tamil Nadu Dr. Ambedkar Law University, March, 2017 | ISSN: 2394- 5044, The World Journal On Juristic Polity Page | 27
DEMERITS OF DELEGATED LEGISLATION 27
a. Conflict of Sub-Delegation- When the legislative body is not responsible and if it doesn’t deal with the creation of legislation, the problem of subdelegation arises. It means that the law making power goes to the other bodies than the legislature. Finally it results with a conflict 18 that the other parties should not be accountable to the creation of legislation. It can be accountable only when the legislative body authorizes to do so. b. Lack of Publicity- It is not been known by the public, and there is lack of publicity. The secondary legislation should also be noticeable. Every legislation which is been made by the administration should be known to the other members. c. Dependence on the Legislators- The courts are unable to review such delegation. The administration should depend on the person who has created such legislation. It becomes a problem as the court cannot review such legislation. d. Power of High Courts- The term delegated legislation can be influenced by the high courts, when compared to primary legislation. The legislation which is been made by the persons are not elected directly, and this kind of legislation can be quashed 19. This reduces the time of the parliament as the government20 will have a legislative program that should keep the parliament busy. e. Un-democratic- As a result, legislation is undemocratic 21 as most of the rules and regulations22 are been made by the unelected people and civil servants. The local authority bylaws have been laid by the elected councillors.
SOME INSTANCES OF DELEGATED LEGISLATION
1. Advocates Act of 1961:
Preamble
of
Act
provides
for
maintaining
professional ethics and high standard of professional conduct. Bar Council being an administrative body make rules in this regard. 27
Ibid
Page | 28
2. Export & Import Act with only 8 sections in its fold, lays down rules for export & import. Under the Act, Central Government has been given the power to make rules necessary to meet the purpose of the Act.
3. Essential Commodities Act, 1955: The Act governs the maintenance and supply of essential commodities like sugar, rice, wheat etc. Under the Act Central Government has been given the power to implement rules and regulations for the purpose of the Act.
4. Indian Medical Council Act: The preamble of the Act says to maintain high standard and ethics of medical profession. Indian Medical Council makes rules in this regard.
5. Right to Information Act, 2005: Section 27 of the Act empowers appropriate government to make rules to carry out the provisions of the Act.
However, there may be some other form of rule making by the executive where these provisions instead of being delegated by the legislature, they may be conferred by the Constitution itself. Article 77 of the Constitution gives the powers to the President to make rules for more convenient transaction of the business of the Government. Even the ordinance making powers of the President under Article 123, and that of Governor under Article 213 cannot be taken as the delegated legislation as those are the legislative powers in their hands.
Page | 29
CHAPTER -2 CAUSES OF GROWTH OF DELEGATED LEGISLATION Delegated legislation is not an isolated phenomenon. Numerous factors are responsible for its growth. The traditional theory of ‘laissez faire’ has been given up by every state and the old ‘police state’ has long ceased to regard its role in the social and economic life of the community as that of a ‘glorified policeman’ and now has become a welfare state. Because of such a radical change in the philosophy as to the role to be played by the State, its functions have tremendously increased in promoting the welfare of its citizens from cradle to grave. Consequently, delegated legislation has become indispensable. As stated by the Committee on Ministers’ powers the following factors are responsible for the rapid growth of delegated legislation at large scale: Pressure upon Parliamentary time As there is phenomenal increase in functions of state, the bulk of legislation is so great that it is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature passes skeleton legislation containing general policy and empowers the executive to fill in the details, “thus giving flesh and blood to the skeleton so that it may live” 28 by making necessary rules, regulations, bye-laws etc. Lawmaking is not a turnkey project, readymade in all detail and once this situation is grasped the dynamics of delegation easily follows. 29 The Committee on Ministers' Powers has rightly remarked : “The truth is that if Parliament were not willing to delegate law-making power Parliament would be unable to pass the kind and quality of legislation which modern public opinion requires.”
Technicality Sometimes, the subject-matter of legislation is of a technical nature and requires consultation of experts. Members of Parliament may be best 28. Gamer, Administrative Law, 1985, p. 49 29 Avinder Singh v. State of Punjab, AIR 1979 SC 321.
Page | 30
politician but they are no experts to deal with highly technical matters which are required to be handled by experts In such cases the legislative power may be delegated to experts to deal with the technical problems. Legislation concerning atomic energy, nuclear energy, gas, drugs or electricity may be quoted as illustration of such technicalities.
Flexibility Parliament does not function continuously. At the time of passing any legislative enactment, it is not possible to foresee all the contingencies. Therefore, power is necessarily required to be given to the Executive to meet the unforeseen contingencies or to adjust new circumstances arising frequently. While parliamentary process involves delays, delegated legislation offers rapid machinery for amendment. Police regulations and certain economic regulations relating to bank rate, import and exports, foreign exchange etc. are instances of such situations.
Experimentation Ordinary legislative process suffers from the limitation of lack of viability and experimentation. Delegated legislation enables the executive to experiment. The method permits rapid utilisation of experience and implementation of necessary changes in the application of the provisions in the light of such experience. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand if they are found to be defective, the defects can be cured immediately. 30
Emergency In times of emergency, quick action is required to be taken. An emergency may rise on account of war, insurrection, floods, epidemics, economic depression and the like. Legislative process is not equipped to provide for urgent solution to meet the situation. It is, therefore, necessary 30 Per Fazal Ali, J. in Delhi Laws Act, 1912, Re, AIR 1951 SC 332.
Page | 31
that executive must have power that may be used instantly. Delegated Legislation is the only convenient remedy. 31
Confidential matters In some situations public interest demands that the law must not be known to anybody till it comes into operation. Rationing schemes or imposition of import duty or exchange control are such matters.
Complexity of modern administration Owing to the complex structure of society,, modern administration has become complex. It is assuming more and more responsibility in promoting the welfare of the citizens, supervising their health, education and employment, regulating trade, industry and commerce; and providing a great variety of other services. In this way the complexity of modern administration and the expansion of the functions of state of socio-economic sphere have rendered it necessary to resort to new forms of legislation and to give wide powers to various agencies on suitable occasions. It is necessary that administration should be given ample power to implement socio-economic policies so that immediate action can be taken. By resorting to traditional legislative process, the entire object may be frustrated by vested interest and the goal may not be achieved at all. 32
Criticism of the growth of Delegated Legislation
There was a time when the growth of delegated legislation was criticised as undemocratic.33 It was described as an extension of the despotic powers of bureaucracy. But, with change in time, much of the antipathy has died down. Ideas about it have changed. It is now considered as the natural reflection in the sphere of constitutional law, of changes in ideas of government, resulting from changes in political, social, and economic
31 See Sukhdev Singh v. Bhagat Bam, (1975) 1 SCC 421, 434. 32 Fazal Ali . J. : Delhi Laws Act, 1912, Re AiR 1951 SC 332 ; See also Brij Sunder v. First Additional District Judge, AIR 1989 SC 572. 33 Lord Hewart, The New Despotism (1929). Page | 32
thinking, and of the changes brought in our lives owing to scientific discoveries and technological advances. However, one must not lose sight of the fact that delegated legislation suffers from several defects as well. Constitutional legitimation of unlimited power of delegation to the executive by the legislature may, on occasion, be subversive to responsible government and erosive of democratic order. 34 Many a time, the legislature passes laws in “skeleton” form containing only the barest of general policies and leaves everything else to the discretion of administrative agency. Therefore, the administration armed with lawmaking power threatens to overwhelm the little man by trampling upon life, liberty land property. The executive gets a blanket cheque to do whatever it likes. The system thus becomes undemocratic giving rise to the danger that the government may misuse its powers. The result is that there is wide spread suspicion and apprehension that civil and personal liberties which are democratic values may be endangered by an unbridled use of the technique of delegated legislation by the administration. Further-more, if law-making is taken over by the government it may make its administration by barrel of the secretariat pen. 35 Therefore, if the technique of delegated legislation is to serve its laudable task, it is necessary to devise control and safeguards so that the dangers and risks of abuse inherent therein may be minimised. Moreover, the question of the desirability of subordinate legislation is “far more a matter of politics than of Administrative Law.”36 The question, therefore, is not about the existence of delegated legislation, but of its control.
34 Avinder Singh v. State of Punjab, AIR 1979 SC 321. 35 Avinder Singh v. State of Punjab, AIR 1979 SC 351. 36 Griffith and Street, Principles of Administrative Law, 37 (1973).
Page | 33
CHAPTER 3 TYPES OF DELEGATED LEGISLATION In the Indian context, practice of empowering the Government to modify the Act has mostly been delegated as a consequence to the power of extension and application of laws. The delegated power authorizes the making of modifications in an Act to be extended, which may be in enabling Act itself or some other Act. Another occasion for the grant of modification arises, when "Legislation by reference is adopted". It is a device where an Act or part of it is taken to be forming a part of another Act. To make adopted Act fit into framework of the adoptive Act, power is given to the executive to introduce necessary modifications in the former.
1. RULE
The expression "rule" is defined in the General Clauses Act, 1897, as a rule made in exercise of a power conferred by any enactment and will include a regulation made as a rule under any enactment. The Mines Act, 1952, may be cited as an illustration of a case where a regulation may also be regarded as a rule. (See sections 58 and 59). The most common form of delegation of legislative power is to authorize the executive to frame rules for carrying into effect the objects and purposes of the Act. Rules may be defined as minor laws. Invariably the Act also sets out for the guidance of the executive the topics on which such rules may be made, although the lists of topics so set out are not intended to be and may not be exhaustive.
2. REGULATION Regulation (as opposed to laws made in the form of Regulations and falling within the definition of Regulation as contained in the General Clauses Act, 1897), are somewhat inferior to rules in that they are generally made by a subordinate authority like a Board or other statutory body functioning under a statute.37 The draftsman would be well-advised to
37 See A.K v. Board of Secondary Education, 71 CWN 396 (1967) where it is stated that a rule is superior to a regulation. Page | 34
preserve a distinction between rules and regulations. The Indian practice is to confer rule-making powers on the Government itself and where a specified subordinate authority is singled out for regulating any matter, the subsidiary legislation is generally in the form of regulations. Such regulations may be needed only for bind the members of that authority or they may have a wider significance. Rules, on the other hand, have invariably a much wider application. 38
The word 'Regulation' has also been used in Constitution where power to govern certain territories is conferred by making 'Regulation'. The word Regulation is defined in section 3(50) of the General clauses Act in the following words; "Regulation" shall mean a Regulation made by the President under Article 240 of the Constitution; and shall include a Regulation made by the President under Article 243 thereof and; and a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935". This type of Regulation is in the nature of principal legislation and not an instance of subordinate legislation 39. As expressed in the definition of 'rule', a 'regulation' may be made as a rule and then it partakes the character of a rule. 'Regulation' and 'rule' are inter interchangeable words.' A regulation made under statutory powers laying down terms and conditions of service of employees like any other delegated legislation such as rule has the force of law. 40 When power to make delegated legislation is conferred on different authorities by the same Act, the words 'rules' and 'regulations' may be utilized to distinguish the source and to sub-ordinate the latter to former.41 But sometimes the same authority may be authorized to make 'rules' in respect of certain matters and 'regulation' in respect of others. 38 Every exercise of a statutory power by a rule-making authority which is of a legislative and not of an executive character is to be deemed to be a statutory rule within the meaning of the Rules Publication Act, 1893 (56 & 57 Vict., c. 66).
40 Parvet Qadir V. Union of India, AIR 1975 SC 446 at 451. 41 Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331 at 1340.
Page | 35
3. BYE-LAW The expression "bye-law" is generally used when a body like the municipal corporation is authorized to deal with specified matters. For instance, building bye-laws. A bye-law is an ordinance affecting the public or some members of the public. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which but for the bye-law they would be free to do. Further, if validly made, it has the force of law within the sphere of its legitimate operation. 42
4. ORDER While a rule is general in character and indiscriminate in its application, an order, broadly speaking, is specific and may be limited in its application. On the other hand, instances of orders having wide application and standing more or less on the same footing as enactments are not uncommon. Instances of these are orders made under the Defence of India Act, 1971, the Essential Commodities Act, 1965, the Adaptation Orders under the Indian Independence Act, 1947, the Constitution and so on. While an order having the authority of law behind it may be recognized by courts, unless the order prescribes a rule of conduct which persons living in the community have to obey, there can be no question of its enforceability by a court of law or other authority. It is only where the order is enforceable by courts or other authority that it can be said to have the force of law. 43 Quite often, use of the capital
is resorted to by the draftsman to draw a
42 A bye-law can be challenged if it is unreasonable; while a rule cannot be so challenged. Mulchand Gulabchandv. Mukumd S hivram, AIR 1952 Born. 296. The early history of the expression "bye-law" is that when the Danes acquired possession of a shire in England, the township was often called a "by" and as they enacted laws of their own, they were called "by-laws" "town-laws" (Iyer's Law Lexicon; see also the definition in Stroud and Wharton). Also see Kruse v. Johnson, (1898) 2 QB 91at 96. 43 J.A. Shodan v. FN Rana, AIR 1964 SC 648 at 667
Page | 36
distinction between orders enforceable by courts and orders of the strictly limited variety, but such a device has no legal significance.
5. NOTIFICATION "Notify means make known and, in the case of public matters, it generally means that some persons whose duty it is to notify something, gives it in the manner prescribed and to persons entitled to receive it. Quite often, the relevant statutes may define "notification" to mean notification in the Official Gazette. The Burma General Clauses Act contains such a definition. Notifications may be of two kinds. Most Government orders are notified so that the public may know them. All of them do not have the force of law. Only such notifications have the force of law which are a species of subordinate legislation passed by a body having authority to promulgate them and which lay down some rules of conduct for persons in the community to obey. Appointments, postings and transfers of officers which are often notified in the Gazette cannot obviously have the force of law.44
6. SCHEME A "scheme", may be of two kinds. It may embody subordinate legislation containing a body of rules binding on person with whom the rules are concerned and in such a case, if passed by an authority having the necessary power to do so, they will be enforceable in courts of law or by other authorities and will have the force of law. The other kind of scheme may be purely executive in character and does not contain any rules of conduct for any body to follow.45 7. PROCLAMATION A "proclamation" is the act of proclaiming, a declaration or notice by public outcry such as is given by criers or a public notice in writing given by a State or departmental official of some act done by the Government or to be 44 Ibid 45 Ibid
Page | 37
done by the people. It is in the above sense that the word is used in section 26 of the Police Act of 1861 which provides for the disposal of unclaimed property by the police after issuing a proclamation.
On the other hand, legislation in pursuance of some statutory power may also take the form of proclamations. For instance, in case of failure of the
constitutional
machinery
in
any
State,
the
President
may,
by
Proclamation, assume to himself the powers of the State legislature and also make such incidental, or consequential provisions as may be necessary or desirable to give effect to the objects of the Proclamation. (art. 356 of the Constitution). The President may also declare by Proclamation a state of emergency which has the force of law (art. 352).
8. RESOLUTION A "resolution" passed by Parliament is the form in which that body expresses an opinion. It is generally a suggestion or declaration concurred in by both Houses where there are two Houses or passed by one House if there be but one and not submitted to the executive for approval. The Legislature often requires the executive to take action by means of resolution. For implementing such resolutions it may sometimes be necessary to enact legislation. (See for instance, the Commissions of Inquiry Act, 1952 (60 of 1952; The Indian Rubber Control Act, 1934).]
A "resolution passed by Parliament under article 249 or by the Legislature of a State under article 252 is not equivalent to a statute. It is only a declaration and enables some further action, including legislative action, to be taken.
THE NEW DESPOTISM
The tendency to regulate certain matters by subordinate legislation as exemplified in English Parliamentary Legislation, had earlier attracted a Page | 38
great deal of attention and considerable hostile comment. This apparent surrender by Parliament of a large part of its legislative functions to the executive departments of the State was focused in 1929 by Lord Hewart of Bury in the New Despotism (London). Cecil T.Carr in Delegated Legislation (Oxford
University
Press,
(1921)
and
WA.
Robson
in
Justice
and
Administrative Law, Macmillan & Company (1928), had already examined the extent of the growth of the phenomenon, the advantages and disadvantages of the practice, and the nature of the checks on it. The publication of Hewart's book had been preceded by the appointment on the 30'h October, 1929, of a Committee (known as the Doroughence Committee to consider the powers exercised by Ministers of the Crown by way of delegated legislation and to report -:
V.
What
safeguards
are
desirable
or
necessary
to
secure
the
constitutional principles of the sovereignty of Parliament and the supremacy of the law. The report of that Committee published in 1932 by H.M's stationery Office as Cmd. 4060 to a large extent provided the necessary corrective. 46
VI.
"The truth is that if Parliament were not willing to delegate lawmaking power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires." 47 On the ground merely of efficient drafting, Lord Thring, 48 Parliamentary Counsel to the Treasury, had advocated in 1877 that procedure and matters of detail should not be included in an Act, but if possible should be left to be prescribed, and his successors in the Parliamentary Drafting Office of the Treasury have maintained this view. 49
46 47 48 49
Bartley's General Clauses Act, 1897 at 151-152 (1940). Report of the Committee on Minister's Powers, at 23. Thring, Practical Legislation, Chapter II, paragraph 12. For instance, Sir 1 lenery Jenkyns, a Parliamentary Counsel, has recorded the following official minute. "Statutory rules are in themselves of great public advantage because the subject of them can thus be regulated after a Bill passes into an Act with greater care and minuteness, and with better adaptation to local or other special circumstances than they possibly can be in the passage of a Bill through Parliament. Besides, they Page | 39
REPORT OF COMMITTEE ON MINISTERS' POWERS-
The Committee on Ministers' Powers referred to above found the practice
of delegating law-making power justifiable and even
inevitable, because —
(a) (a ) It relieved pressure on Parliamentary time, leaving Parliament to deal with essential principles of legislation. (b) (b ) Parliament cannot effectively deal with technical matters. (c) (c ) Administrative details cannot be worked out in time, nor can the contingencies or local conditions to be provided for be foreseen. (d) (d ) Unknown future conditions demand flexibility. (e) (e ) The need need to experiment and and profit by experience experience cannot cannot otherwise be met, (f) (f ) Sudden emergencies cannot otherwise be handled.
CONSTITUTIONALITY OF DELEGATED LEGISLATION The Privy Council was the highest Court for appeal from India in constitutional matters till 1949. The question of constitutionality came before the Privy Council in the famous case of R. Vs. Burah (1878) 3 AC 889. An 889. An Act was passed in 1869 by the Indian Legislature to remove Goro Hills from the civil and criminal jurisdiction of Bengal and vested the powers of civil and criminal administration in an officer appointed by the Legislative Governor of Bengal.
The Legislative Legislative Governor was further authorized by section 9 of the Act to extend any provision of this Act with incidental changes to Khasi and Jaintia hills. By a notification the Legislative Legislative Governor extended all the provisions of the Act to the districts of Khasi and Jaintia Hills. One Burah was tried for murder by the commissioner of Khasi and Jaintia Hills and mitigate the inelasticity which often otherwise makes an Act non-workable and are susceptible of modifications from time to time by the Government Department at any time of the year as circumstances arise".
Page | 40
was sentenced to death.
The Calcutta High Court declared section 9 as unconstitutional unconstitutional delegation of legislative power by the Indian legislature. The ground was that the Indian Legislature is a delegate of British Parliament, therefore, a delegate cannot further delegate. The Privy Council on appeal reversed the decision of the Calcutta High Court and upheld the constitutionality of section 9 on the ground that it is merely a conditional legislation.
The decision of the Privy Council was interpreted in two different ways.
I . Indian legislature was not delegate of British Parliament, there is no limit on the delegation of legislative functions. I I . Since Privy Council has validated only conditional legislation. Therefore, delegation of legislative power is not permissible.
So, it did not become clear whether full-fledged delegated legislation was allowed or only conditional legislation was allowed.
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CHAPTER - 4 CONDITIONAL LEGISLATION Conditional legislation may be defined as 'a statute that provides controls but specifies that they are to go into effect only when a given administrative authority finds the existence of conditions defined in the statute’.50 When conditional legislation is passed by the legislature, the law is full and complete. No legislative function is delegated to the executive. However, such Act is not brought into force. It is left to the executive to bring the Act into operation on fulfilment of certain conditions and for that reason the legislation is called 'conditional legislation.’ According to Cooley 51 “It is not always essential that a legislative A ct should be a completed statute which must in any event take effect as law at the time it leaves the hands of legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.” The question of permissible permissible limits of delegation delegation of law-making law-making power as conditional legislation can be considered in three different periods for the sake of better comprehension. comprehension.
(I) Privy Council and conditional legislation The doctrine of conditional legislation legislation was laid down by the Privy Council in Queen v. Queen v. Burah52 In this case the view of Privy Council was that where plenary powers of legislation exist as to particular subjects, whether in
50 51 52
Hart, an Introduction to Administrative Law with selected cases, p. 310. A Treatise on the the Constitutional Constitutional Limitations, 8th Ed., Ed., Vol. 1, p. p. 227. 5 I.A. 178 (18T8), for text, See supra.
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an Imperial or in a Provincial Legislature, they may well be exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence is no uncommon thing and, in many circumstances it may be highly convenient. The doctrine of conditional legislation has been applied in a number of cases. In Emperor v. Banwari Lal ,53 an ordinance promulgated by the Governor General provided for setting of Special Courts. But the operation of the ordinance was left to the Provincial Government on being satisfied that emergency had come into existence. The validity of the ordinance was upheld. According to the Privy Council it was a piece of conditional legislation as the legislation was complete and what had been delegated was the power to apply the ordinance on fulfilment of certain conditions. These cases show that the delegation of legislative power was upheld by the Privy Council under the rubric of “conditional legislation.” (II) Federal Court and Conditional Legislation In Jatindra Nath Gupta v. Province of Bihar,54 the Federal Court held that there could be no delegation of legislative power in India beyond “conditional legislation.” The Court took a restrictive view of the concept of conditional legislation. I I I . Supreme Court And Conditional Legislation Federal Court had taken a narrow view with regard to the concept of conditional legislation while the Supreme Court has taken a liberal view. - In
Inder
Singh
v.
State
of
Rajasthan,55 an
ordinance
was
promulgated for two years, but the Governor was empowered to further extend the life of the said ordinance by a notification. The Governor extended the life of the ordinance first by two years and then again by two years. The Supreme Court held, the power to extend the life of ordinance valid as being conditional legislation. This is a provision similar to that involved in Jatindra in which it was decided that the 53 72 I.A. 57 (1949) 53 AIR 1949 F.C. 175; for text, see supra. 55 AIR 1957 SC 51.
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power to extend the operation of an Act was delegated legislation and not conditional legislation and therefore bad and void. In this way, the Supreme Court has broadened the concept of conditional legislation. In applying the doctrine of conditional legislation in the cases coming before it, the Supreme Court has adopted a liberal approach in Basant Kumar v. Eagle Rolling Mills.56
57
Section 1 (3) of the Employees’ State
Insurance Act, 1948 passed by Parliament provided that the "Act shall come into force on such date or dates as the Central Government may by notification in the official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States and for different parts thereof.” The Supreme Court held the provision valid as conditional legislation. In A. K. Roy v. Union of India 58 the Court upheld the validity of a provision in a constitutional amendment giving unfetterred discretion to the executive to bring the amendment into force. IV.Liberalisation of the concept of conditional legislation. The Supreme Court has liberalised the concept of conditional legislation. In Kerala State Electricity Board v. Indian Aluminium,59 a Kerala Act was passed to regulate production, supply and distribution of ‘essential articles’. But the statute provided no list of articles; it left it to the government to notify an article as an “essential article” and bring it within the purview of the Act. The Supreme Court upheld the delegation of power as conditional legislation. A special reference may be made to Tulsipur Sugar Co. Ltd. v. Notified Area Committee.60 In this case, a notification was issued under section 3 of the U.P. Town Areas Act, 1914 extending the limits of Tulsipur Town to village Shitalpur where the sugar factory of the plairtiff was situated. The notification was challenged, inter alia, on the ground that the procedure
56 57 58 59 60
AIR 1964 SC 1260. AIR 1982 SC 710. (1982) 1 SCC 271 AIR 1976 SC 1031. AIR 1980 SC 882.
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under the Act was not followed and hence the subordinate legislation was bad. Rejecting the contention, the Supreme Court held that it was a case of conditional legislation and not of subordinate legislation. Referring to a number of cases, the Supreme Court said that the effect of making the Act applicable to geographical area is in the nature of a conditional legislation and that “it cannot be characterised as a piece of subordinate legislation.” V.American Supreme Court and Contingent Legislation. The doctrine of Contingent legislation has been recognised and applied by the American Supreme Court in the leading case of Field v. Clark.61 In this case, the President was authorised to suspend the operation of an Act permitting free import of certain products in the U.S. on being satisfied that the duties imposed upon such products were reciprocally unequal and unreasonable. The Supreme Court held the Act valid on the ground that the Act was complete and the President was a mere agent of Congress to ascertain and declare the contingency upon which the will of Congress was to take effect. The Court quoted with approval the following classical passage from a Pennsylvanian case.62 “The legislature cannot delegate its powers to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things on which wise and useful legislation must depend which cannot be known to the lawmaking power, and must, therefore, be the subject of inquiry and determination outside the hall of the Legislature.” 63 VI.
Conditional
Legislation
and
Delegated
Legislation
:
Distinction A distinction is made between conditional legislation and delegated legislation on basis of discretion. In conditional legislation, it is the function of executive to apply the law after fact-finding, e.g., to inquire whether the facts requiring operation of the Act exist; but in delegated legislation, it is left 61 143 US 649 (1892). 62 Locke’s Appeal, (1873) 72 Pa. 491. 63 Quoted in Delhi Laws Act case, AIR 1951 SC 332.
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to the discretion of government whether to exercise discretion delegated to it or not. In the case of Hamdard Dawakhana v. Union of India,64 the Supreme Court distinguished the two in the following words : “The
distinction
between
conditional
legislation
and
delegated
legislation is that in the former the delegate’s power is that of determining when a legislative rule of conduct shall become effective
and
the
latter
involves delegation of rule-making power which constitutionally may be exercised by the administrative agent.” 65 66 It is submitted that the discretion based on distinction between conditional legislation and delegated legislation is artificial. The question is : Can it be said that there is total absence of discretion in conditional legislation. In fact, whether emergency exists or not, or whether tariff rates are low or high or whether the application of law is reasonable or unreasonable is a matter of discretion and cannot be decided on mere facts. Moreover, in view of the rapid growth of administrative law and acceptance of the doctrine of delegated legistation, it is not necessary to stick to artificial distinction between ‘delegated legislation’ and ‘conditional legislation’. What is to be noted is that when the Courts were not readily approving or accepting the doctrine of delegated legislation, in the guise of conditional legislation, they were seeking to uphold legislative measures. It must not be forgotten that contingency formula is nothing but a fiction employed by the Supreme Court of United States to get away from the ‘doctrine of separation of powers’. Similarly Privy Council did not like to commit itself to the position that ‘subordinate legislature’ could delegate legislative powers and therefore evolved the doctrine of conditional legislation to indicate that what was being delegated was some minor legislative power. Now that the theory of delegated legislation has been accepted in India, it is not necessary to adhere to the so-called artificial distinction between the two. As a matter of fact, delegated legislation is the wider term which would include the narrower term conditional legislation, inasmuch as, conditional 64 AIR 1960 SC 534. 65 Ibid, at p. 566. 66 Lachmi Narain v. Union of India, AIR 1976 SC 714.
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legislation is a form of ‘delegation’ and a ‘very common instance of delegated legislation’. 67 VII.
Subordinate Legislation :
A provision in the statute for "such inquiry as it may consider necessary" by a. subordinate authority is generally an enabling provision to facilitate the subordinate authority to obtain relevant information from any source and it is not intended to vest any right in any body. While exercising legislative function, unless unreasonableness or arbitrariness is pointed out, the Court cannot interfere. Clarifying the law further, the Court held : (i) the effect of subordinate legislation is the same as that of the parent statute if validly made146; (ii) if the subordinate legislation conflicts with parent Act, then it must give way to the substantive statute and be so read in its context 68; (iii) subordinate legislation must be read in a meaningful manner as to give effect to the provisions of the statute and where two constructions are possible, a construction which would make the provision workable and in consonance with the statutory scheme be preferred 69; (iv) if rules and regulations are to be framed by following a particular procedure given in the statute, burden of proof would lie on the person who challenges such rules and regulations as violative of such procedure. 70
VIII.
GENERAL OBSERVATIONS In the area of delegation of legislative power, the Courts have
recognised and applied the doctrine of excessive delegation. A review of the relevant judgments shows that the Courts do support the thesis, that delegation of legislative power is valid only if the delegating statute declares the policy which the delegate is to execute in exercising rule-making power. In Gwalior Rayon Khanna J. has rightly reiterated the doctrine of excessive 67 68 69 70
State of Punjab v. Devana Modern Breweries Ltd., (2004) 11 SCC 26. I.T.W. Signode India Ltd. v. C.C.E., (2004) 3 SCC 48. Romesh Mehta v. Sanwal Chand Singhvi, (2004) 5 SCC 409. Om Prakash v. State of U.P., (2004) 3 SCC 402.
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delegation with persuasive arguments. In his own words : “The rule a gainst excessive delegation of legislative authority flows from and is a necessary postulate of the sovereignty of people.” A number of general principles which emerge from the various judgments relating to delegation of legislative power are as follows : (1) The Constitution confers law-making power on the Legislature and as such the said function cannot be delegated by the legislature to the Executive. The legislature can neither create a parallel legislature nor destroy its legislative power.
(2) Delegation of legislative power is permissible provided this does not amount to abdication of legislative function and policy is laid down by the legislature.
(3) The legislature cannot delegate essential legislative function. The essential legislative function consists in the determination of the legislative policy and making it a binding rule of conduct.
(4) If the legislature has performed its essential function of laying down the policy of law, there is no constitutional bar against delegation of subsidiary or ancilliary powers in that behalf to the executive for making the legislation effective, useful and complete.
(5) A statute delegating law-making powers to the executive shall be invalid if it lays down no principles and provides no standards for guidance to the rule-making body.
(6) The legislative policy can be formulated as broadly and with as little or much detail as the Legislature thinks fit. It is not necessary that the policy must be express, it may be implied as well. It may be gathered from history, preamble, title, scheme, statement or objects and reasons. Guidance may be found anywhere in the statute.
(7) Power to repeal does not make delegation valid if otherwise it is excessive, Page | 48
impermissible or unwarranted.
(8) When a statute is challenged on the ground of excessive delegation, it must satisfy two tests : (i) whether it delegates essential legislative function or power, and (ii) whether the legislature has enunciated its policy and principle for the guidance of the delegate.
(9) Whether the legislature has performed the essential legislative function and laid down the policy and the delegation is permissible or not depends upon the circumstances of the statute under consideration.
(10) Delegated legislation may take different forms. However, these principles apply to all forms of delegation viz., conditional legislation, subordinate legislation, supplementary legislation, sub-delegation etc.
Delegated legislation in the changed socio-economic complexion has become a constituent element of legislative power as a whole. 71 Broad delegations of legislative power are upheld where they relate to taxation, socio-economic legislation and elected bodies. The doctrine of excessive delegation and legislative policy are safety valve necessary for functioning of Democratic Government in developing Countries
71 Tata Iron and Steel Co. Ltdy. Their Workmen, AIR 1972 SC 1918, 1922.
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CHAPTER 6 SUB-DELEGATION
(Delegatus non potest delegare) ‘When a statute confers some legislative powers on an executive authority and the latter further delegates those powers to another subordinate author or agency, it is called ‘sub-delegation.’ Thus, in sub-delegation, a delegate further delegates. This process of sub-delegation may go through many stages. If we may call the enabling Act the ‘parent’ and the delegated and sub-delegated legislation the ‘children’, the parent, in his own lifetime may beget descendants up to four or five degree. An important illustration of sub-delegation is found in the Essential Commodities Act, 1955. Section 3 of the Act empowers the Central Government to make rules. This can be said to be the first-stage delegation. Under Section 5, the Central Government is empowered to delegate powers to its officers, the State Governments and their officers. Usually under this provision, the powers are delegated to State Governments. This can be said to be the second-stage delegation (subdelegation). When the power is further delegated by State Governments to their officers, it can be said to be the third-stage delegation (sub-subdelegation). Thus, under Section 3 of the Essential Commodities Act, 1955, Page | 50
the Sugar Control Order, 1955 was made by the Central Government (firststage delegation). Under the Order, certain functions and powers are conferred on the Textile Commissioner (second-stage delegation). Clause 10 empowered the Textile Commissioner to authorize any officer to exercise on his behalf all or any of his functions and powers under the Order (third-stage delegation).
I. OBJECT: The necessity of sub-delegation is sought to be supported, inter alia, on the following grounds: 1. Power of delegation necessarily carries with it power of further delegation; and 2. Sub-delegation is ancillary to delegated legislation; and any objection to the said process is likely to subvert the authority which the legislature delegates to the executive. Sub-delegation of legislative power can be permitted either when such power is expressly conferred by the statute or may be inferred by necessary implication.
II. Express Power: Where a statute itself authorizes an administrative authority to subdelegate its powers, no difficulty arises as to its validity since such subdelegation is within the terms of the statute itself. Thus, in Central Talkies Ltd. v. Dwarka Prasad ,72 the U.P. (Temporary) Control of Rent and Eviction Act, 1947 provided that no suit shall be filed for the eviction of a tenant without permission either of a District Magistrate or any officer authorized by him to perform any of his functions under the Act. An order granting permission by the Additional District Magistrate to whom the powers were delegated was held valid.
72 1961 AIR 606, 1961 SCR (3) 495
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On the other hand, in Ganpati Singhji v. State of Ajmer 73, the parent Act empowered the Chief Commissioner to make rules for the establishment of proper system of conservancy and sanitation at fairs. The rules made by the Chief Commissioner, however, empowered the District Magistrate to devise his own system and see that it was observed. The Supreme Court declared the rules ultra vires as the parent Act conferred the power on the Chief Commissioner and not on the District Magistrate and, therefore, the action of the Chief Commissioner sub-delegating that power to the District Magistrate was invalid. Sometimes, a statute permits subdelegation to authorities or officers not below a particular rank or in a particular manner only. As per settled law “if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited.” In other words, ‘where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all’.
III. Implied power: But what would happen if there is no specific or express provision in the statute permitting sub-delegation? The answer is not free from doubt. In Jackson v. Butterworth, Scott, L.J . held that the method (of subdelegating power to issue circulars to local authorities) was convenient and desirable, but the power so to sub-delegate was, unfortunately, absent. The other view, however, is that even if there is no provision in the parent Act about sub-delegation of power by the delegate, the same may be inferred necessary implication. Griffith rightly states, “if the statute is so widely phrased that two or more ‘tiers’ of sub-delegation are necessary to reduce it to specialized rules on which action can be based, then it may be that the courts will imply the power to make the necessary sub-delegated legislation.”
73 1955 AIR 188, 1955 SCR (1)1065
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- In States v. Baren ,74 the parent Act conferred on the President the power to make regulations concerning exports and provided that unless otherwise directed the functions of the President should be performed by the Board of Economic Welfare. The Board subdelegated the power to its Executive Director, who further subdelegated it to his assistant, who in turn delegated it to some officials. The court held all the sub-delegations valid.
IV. Concurrent Jurisdiction: If the authority, on whom power is conferred, validity sub-delegates it, it can even then exercise the power provided that it so wants. In Godavari v. State of Maharashtra 75, the power of detention was conferred on the State Government under the Defence of India Rules but it was sub-delegated to the District Magistrate. It was held the power could be exercised either by the District Magistrate or the State Government. In such a case both principal authority and delegate will have concurrent jurisdiction.
V.
Sub-delegation can be studied under three sub-heads:
(a) Sub-delegation of legislative power. (b) Sub-delegation of judicial power. (c) Sub-delegation of administrative power.
(a)Sub-Delegated Of Legislative Power: The maxim
‘delegatus non potest delegare’ (a delegate cannot further
delegate) applies to legislation also and it is not possible for the delegate to sub-delegate the power conferred on him unless the parent Act authorises him to do so either expressly or by necessary implication. Assuming that the sub-delegation is permissible under the parent Act, what are the limitations and safeguards in this behalf? Here, the following propositions may be laid down:
74 No. 95 – 10369. 10369. September 04, 1996 75 1964 AIR 1128, 1964 SCR (6) 446
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(1) If the parent Act permits sub-delegation to officers or authorities not below a particular rank, then the power can be delegated only to those officers or authorities. Under Section 3 of the Defence of India Act, 1962, the Central Government was empowered to make rules authorising detention of persons by an authority not below the rank of a district magistrate. Section 40 authorised the State Government to delegate its powers to any officer or authority subordinate to it. The Supreme Court held that the power of detention could be sub-delegated to any officer not below the rank of a District Magistrate and the exercise of power to the Additional District Magistrate was illegal. 76 But even if there is no provision in the parent Act that the sub-delegation should be made to an officer or an authority not below a particular rank, the courts have taken the view that the power can be sub- delegated ‘only to competent and responsible persons’. (2) Sub delegate cannot act beyond the power conferred on him by the delegate.
- In Blackpool Corpn. V. Locker 77, under the Defence Regulations, 1939, the Minister was empowered to take possession of land. By issuing circulars, he sub-delegated this power to the Blackpool Corporation, as was within his powers. The circulars contained certain conditions and one of them was that furniture should not be requisitioned. The Corporation requisition and plaintiff’s dwelling house with furniture. The Court of Appeal held the impugned action ultra vires since it went beyond conferred by the Minister on the Corporation.
(3) If some conditions are imposed by the delegate who must be complied with by the sub-delegate before the exercise of power, those conditions must be fulfilled; otherwise exercise of power will be ultra vires. Under Section 4 of the Essential Supplies (Temporary Powers) Act, 1946, certain powers were sub-delegated by the Central Government to the 76 Ajaib Singh v. Gurbachan Singh, AIR 1965 SC 1619: (1965) 2 S CR 845. 77 (1949) 1 KB 349: (1948) 1 All ER 85.
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Provincial Government subject to the condition that before making any order, concurrence of the former must be obtained by the latter. An order was passed by the Provincial Government without obtaining concurrence of the Central Government. The order was held ultra vires as the conditions was not satisfied. 78 Similarly, if sub-delegation can be made through regulations, it could not be affected by passing a resolution. 79 (B)Sub-Delegation of Judicial Power: In England80 and in America81 it is well-established that a judicial or quasi judicial power conferred on a particular authority by a statute must be exercised by that authority and cannot be delegated to anyone unless such delegation is authorised by the statute either expressly or by necessary implication. - In Morgan v. U.S.82 the Supreme Court of America held that the duty to decide cannot be performed by one who has not considered evidence or argument. It is not an impersonal obligation. It is akin to that of a judge. ‘ the the one who decides must hear.’ hear. ’ De Smith83 says: “the maxim (delegates non potest delegare) is applied with the utmost rigour to the proceedings of the ordinary courts, and in the entire process of adjudication a judge must act personally, except insofar as he is expressly expressly absolved from his duty by statute. ‘only in very exceptional circumstances may judicial functions be sub-delegated in the absence of express authorisation.’ authorisation.’ Lord Denning84 rightly states: “while an administrative function can often be delegated, a judicial function rarely can be; no judicial tribunal can
78 Radhakrishan v. State, AIR 1952 Nag 387. 79 Naraindas v. State of M.P., (1974) 4 SCC 788; AI R 1974 SC 1232 80 Halsbur y’s laws of England (4th Edition, volume. volume. 1) at p. p . 34; de smith, Judicial Review of Administrative Action (1995); Local Govt. Board v. Arlidge, 1915 AC 120: 84 LJKB 72; Wade, Administrative law (1994) 81 Runkle v. U.S., (1887) 122 US 593. 82 (1936) 298 US 468. 83 Judicial Review of Administrative Action (1995) 84 Barnard v. National Dock Labour Board, (1953) 1 All ER 113: (1953) 2 QB 18: (1953) 2 WLR 995. Page | 55
delegate its functions unless it is enabled to do expressly or by necessary implication.” The same principle is accepted in India as the basic principle. 85 In the words of Hidayatullah, (as he then was) “it goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it.” 86 In the historic case of Gullapalli Nageswara Rao v. A.P.S.R.T.C.87 under the relevant Act and the Rules the Minister was empowered to hear the parties and to pass the final order, but he delegated his function of hearing to his Secretary, who heard the parties and put up a note before the Minister for final decision and the order was passed by the Minister. Quashing the orders, passed by the Minister, Subba Rao, J. Held that it was not a judicial hearing. “if one person hears and another decides, personal hearing becomes an empty formality.” At the same time, practical difficulties must also be appreciated. It is not possible for all judicial and quasi-judicial authorities to take the entire evidence in all cases, hear the parties and their representatives or advocates, and give decisions. In these circumstances courts have allowed some relaxation and held that it is permissible for judicial or quasi-judicial bodies to delegate certain functions, e.g. holding of inquiries, taking of evidence, hearing of parties and to appoint assistants for the said purposes, provided always that after receiving evidence in the aforesaid manner they give an opportunity to the parties to clarify their stand before a decision is finally arrived at by them. It is submitted that the following observations of Mahajan, in the leading case of Delhi Laws Act, 1912 in re 88, lay down correct law on the point, wherein his Lordship stated: “No public functionary can himself perform all the duties he is privileged to perform, unaided by agents and delegates, but from this circumstance it
85 86 87 88
Sahni Silk Mills Ltd. V. ESI Corpn., (1994) 5 SCC 346 (352). Bombay Municipal Crpn. V. Thondu, AIR 1965 SC 1486: (1965) 2 SCR 929 (932) AIR 1959 SC 308 (327): 1959 Supp (1) SCR 31 9. AIR 1951 SC 332: 1951 SCR 747. Page | 56
does not follow that he can delegate the exercise of his judgment and discretion to others. The judges are not allowed to surrender their judgment to others. The judges are not allowed to surrender their judgment to others. It is they and they alone who are trusted with the decision of a case.” 89
(C)Sub-Delegation of Administrative Power: In certain circumstances and on certain conditions, administrative power can be sub-delegated. - Exclusion of judicial review: The rule of law has always recognised power of judiciary to review legislative and quasi-legislative acts. The validity of a delegated legislation can be challenged in a court of law. As early as 1877 in Empress v. Burah 90, the High Court of Calcutta High Court was reversed by the Privy Council 91, neither before the High Court nor before the Privy Council it was even contended that the court had no power of judicial review and, therefore, cannot decide the validity of the legislation. Sometimes, however, attempts are made by the legislature to limit or exclude judicial review of delegated legislation by providing different modes and methods. Thus, in an Act a provision may be made that rules, regulations, bye;laws, etc. made under it “shall have effect as if enacted in the Act”, ‘shall be final’; “shall be conclusive”, “shall not be called in question in any court”, “shall not be challenged in any legal proceedings whatsoever” and the like. The question is whether in view of these provisions judicial review of delegated legislation is ousted? - Ex: finality clauses
89 Murray v. Hoboken, (1856) HOW 272, 284: “we do not consider Congress can withdraw from judicial cognizance any matter which from its nature, is the subject of a suit at the common law, or in equity, or in admiralty.” 90 ILR 3 Cal 64: 1 CLR 161. 91 R v. Burah, (1878) 3 SC 889: 51A 178: 4 Cal 172. Page | 57
Sometimes, provisions are made in a statute by which the orders passed by administrative tribunals or other authorities are made final. This is known as statutory finality. Such clauses are of two types: (i)
Sometimes no provision is made for filing any appeal, revision or reference to any higher authority against an order passed by the administrative tribunal or authority; and
(ii)
Sometimes an order passed by the administrative authority or tribunal is made final and jurisdiction of civil court is expressly ousted. With regard to the first type of finality, there can be no objection, as no one has an inherent right to appeal. It is merely a statutory right and if the statute does not confer that right on any party and treats the decision of the lower authority as final, no appeal can be filed against that decision. 92
VI.
CONTROL OF SUB-DELEGATED:
All the fundamental principles which apply to the functioning of an administrative authority exercising its powers, whether legislative, judicial or quasi-judicial would apply to control the sub-delegated legislation as well. One basic principle is that a sub-delegate cannot act beyond the scope of power sub-delegated to him. If the sub-delegation is conditional, then it is necessary that sub-delegate must observe the conditions otherwise his action will be ultra vires. VII.
CRITICISM The practice of sub-delegation has been heavily criticized by jurists. It
is well established that the maxim delegatus non potest delegare (a delegate cannot further delegate) applies in the field of delegated legislation also and sub-delegation of power is not permissible unless the said power is conferred either expressly or by necessary implication. de Smith says, “there is strong presumption against construing a grant of delegated legislative power as empowering the delegate to sub-delegate the whole or any substantial part of the law-making power entrusted to it.” Bachawat, J. in the leading case of Barium Chemicals Ltd. v. Company Law Board states: 92 For detailed discussion, as to right of appeal, Thakker, Code of Civil Procedure (2002, Vol.II) Page | 58
“The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot re-delegate his authority.” It is also said, ‘sub-delegation at several stages removed from the source dilutes accountability of the administrative authority and weakens the safeguards granted by the Act. It becomes difficult for the people to know whether the officer is acting within his prescribed sphere of authority. It also transfers power from a higher to a hierarchically lower authority. It is, therefore, necessary to limit in some way the degrees to which subdelegation may proceed.’ Finally, there are serious difficulties about publication of sub-delegated legislation. Such legislation, not being an Act of Legislature, there is no general statutory requirement of publicity. ‘Though casually made by a minor official, sub-delegation creates a rule and sets up a standard of a conduct for all to whom the rule applies. No individual can ignore the rule with impunity. But at the same time the general public must have access to the law and they should be given an opportunity to know the law. In case of such delegated and sub-delegated legislation, proper publication is lacking.
CHAPTER
-6
RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER
As laid down in Delhi Laws Act case restraints on delegation are that legislature should not delegate its essential legislative function which means laying of policy and enacting it into a binding rule of conduct. This means that the legislature should lay down standards or policy in the delegating Act and the delegate may be left free to execute the policy. Thus, in Delhi Laws Act case, the doctrine of excessive delegation was propounded.
I.
Excessive Delegation : Permissible Limits In India, the Courts follow the doctrine of excessive delegation. This
Page | 59
doctrine, borrowed from U.S.A.,93 means that an Indian legislature cannot delegate unlimited legislative power to an administrative authority. The advantage of the doctrine is that the courts can declare too broad delegation of legislative power as excessive and hence invalid. 94 It is now well settled by the majority judgment in In Re Delhi Laws Act, 191295
96
that there is a limit beyond which delegation may not go. As
regards the determination of the limit of delegation, there are two views :. (1)
Legislature can delegate legislative power provided this does not amount to abdication of essential legislative function; and
(2)
Legislature can delegate legislative power provided that it lays down the policy. Courts have determined the validity of delegation of legislative power on basis of these principles. The first principle has been applied by the courts only in few cases. In most of cases the validity of the delegation of legislative power has been examined on basis of legislative policy.
(a)
Legislative policy to be found in Essential Legislative Function In a series of cases the Supreme Court has decided that the legislature
cannot delegate its essential legislative function which comprised the formulation of policy and enacting it into a binding rule of conduct. It means that the legislature must declare the policy of the law, lay down legal principles and provide standards for the guidance of the delegate to promulgate delegated legislation, otherwise the law will be bad on account of “excessive delegation”.
In Raj Narain Singh v. Patna Administration Committee 53 Section 3(1) (f) of the impugned Act empowered the Patna Local Government to apply to Patna any provision of the Bihar and Orissa Municipal Act, 1922 with such modification as it may think fit. The
93 Schwartz, Administrative Law, 34-50 (1976) ; Also, Schwartz, American Administrative Law — A Synoptic Survey, 14 Israel L.R. 413-415. 94 See Federal Energy Amin. v. Algonquin,, SNG. Inc., 426 US 458, 559 (1976) 95 AIR 1951 SC 332, 345, 387, 401. 96 AIR 1954 SC 465. Page | 60
Government picked up one section, modified it and applied it to Patna. The Supreme Court held the delegation invalid on the ground that the power to pick out a section for application to another area amounts to delegating the power to change the policy of the Act which is an essential legislative power and hence cannot be delegated.
In Harishankar Bagla v. State ofM.P.,97 under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 the Central Government was authorised to issue an order for the regulation of production, distribution etc. of essential commodities and in section 6 it was provided that “an order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act. Both the provisions were challenged on the ground of excessive delegation of legislative power. The Supreme Court held section 6 valid on the ground that it was not a delegation of power to repeal or abrogate any existing law but to bypass the same where the provisions thereof were inconsistent with the Essential Supplies (Temporary Powers) Act. The court further said that the legislative policy was laid down in the Act and therefore, there was no question of excessive delegation. It sought to bypass difficulty. In this way very broad delegation was given judicial sanction.
In Edward Mills, v. State of Ajmer 98 the Schedule to the Minimum Wages Act, 1948, contained a list of industries to which the Act was made applicable by Parliament.
However, appropriate Government was empowered to add any other industry in the said schedule. The question of application of the provisions of the Act to any industry was left open to the opinion of the government. Though no norms were laid down for the exercise of such discretion, Supreme Court held the Act valid. According to the Court, the legislative policy was enunciated in the Act, namely, to fix minimum wages to avoid the chance of
97 AIR 1954 SC 465. 98 AIR 1955 SC 25.
Page | 61
exploitation of the labour. But, 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.99
In Hamdard Dawakhana v. Union India,100 facts were that Parliament passed the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 to control the advertisement of certain drugs. Section 3 laid down a list of diseases for which advertisement was prohibited and authorised the Central Government to include in other diseases in the list. The court held section 3 bad as nowhere had the legislature laid down any policy for guidance of the Government in the matter of selection of diseases for being included in the list. After the Delhi Laws Act Case, this is the first case in which a Central Act was held ultra vires on the ground of excessive"delegation.
It is submitted that the view taken in this case is not in line with the approach of the Court because the legislative policy had been laid down in the preamble and title of the Act moreover, the clear mention of certain diseases in the list could have furnished the standard and criteria for the selection of other diseases. Such a provision is held void in a ' number of cases. 101 Recently the Supreme Court has observed in a case that it is not necessary that the legislature should “dot all i's and cross all the t's of its policy.”102 However, in Gwalior Rayon Silk Mfg. Co. v. Asstt. Commissioner,103 the minority judgment differred with the “policy and guidelines” theory. According to Justice K.K. Mathew, this effort on the part of Supreme Court to somehow find the legislative policy from somewhere was undignified for any judicial process. He said that “the hunt by Court for legislative policy or guidance in the crevices of a statute or nook and cranny of its preamble is not an edifying spectacle”. 99 M.P. Jain, Indian Constitutional Law, 1987 p. 78. 100 AIR 1960 SC 554. 101 Edward Mills v. Stale of Punjab, AIR 1955 SC 25 ; Banarasi Das v. State of M.P., AIR 1958 SC 909; Babu Ramv. State of Punjab, AIR 1979 SC 1475, Brij Sunder v. First Add. Dist. Judge, AIR 1989 SC 572. 102 Per Ranganathan, J. in Ramesh Birch v. Union of In dia, AIR 1990 SC 560. 103 AIR 1974 SC 1660. Page | 62
In his concurring judgment Mathew, J. (for himself and Ray C.J.) propounded a new test to determine the validity of delegated legislation. In his opinion, so long as a legislature can repeal the enabling Act delegating law making power, it does not abdicate its legislative function and therefore the delegation must be considered as valid no matter howsoever broad and general the delegation may be. Relying upon the decisions in Queen v. Burah104 and Cobb v. Kropp105 Mathew, J. observed that a legislature cannot be said to abdicate its legislative function if it could at any time repeal the legislation and withdraw the authority it had vested in the delegate. However, the majority led by Justice Khanna did not agree to this “abdication test” and relied on the already well established test of “policy and guidelines.” Khanna, J. (for himself, Alagiriswami and Bhagwati, JJ) reiterated that legislature must lay down a policy, principle or standard for the guidance of delegate. The rule against excessive delegation of legislative authority flows from the sovereignty of people. The rule contemplates that it is not permissible to substitute, in the matter of legislative policy, the view of individual officers or other authorities, however competent they may be, for that of the popular will as expressed by the representatives of the people.
The view of Mathew, J. would have meant dilution of the doctrine of excessive delegation. The dangers inherent in such an approach were pinpointed by the majority m this way : If the Parliament were to enact that as the crime situation in the country has deteriorated, criminal law to be enforced in the country would be such as is framed by an officer mentioned in the enactment, can it be said that there has been no excessive delegation of legislative power ? To say that if the Parliament does not approve the law made by the officer concerned, it can repeal the same or Parent Act is no answer. The reason is that after delegating the power Parliament cannot, in a practical sense, control it through its power of repeal. Nowadays Parliament is too much under the control of the Executive whose leadership is accepted
104 (1878) 3 AC 889. 105 (1967) AC 141.
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by the Parliament. Every law is passed by the Parliament on the initiative of the Executive. It is highly improbable that the Executive would ever ask Parliament to repeal an enactment delegating legislative power to itself because it has misused that power. Nevertheless without referring to the majority in Gwalior Rayon 106 Justice Mathew, applied his own test in
N.
K.
Papiah v. Excise
Commissioned 107 and validated a very broad delegation of legislative power. Mathew, J. speaking for an unanimous Court of 3 Judges 108 observed that since the legislature retains the power to repeal the provision delegating the power, there was no abdication of legislative power. Welcoming this departure, Seervi109 has observed that the unanimous judgment in Papiahs shows that after 25 years of wandering in the legal maize of its own creation, the Supreme Court of India, like the Supreme Court of the United States has come round to the view expressed by the Privy Council in 1878. (b)
Justification of Legislative policy In the face of Gwalior Rayon (5 Judges Bench decision), the authority
of Papiah ruling (3 Judges Bench decision) remains doubtful. It is submitted that the majority opinion given by Khanna, J. in Gwalior Rayon lays down correct law on the point. His Lordship observed, “we are also unable to subscribe to the view that if the Legislature can repeal an enactment, as it normally can,,-it retains enough control over the authority making subordinate legislation and, as such, it is not necessary for the legislature to lay down legislative policy, standard or guidelines in the statute. 110 111 It is interesting to find that once again in Kerala State Electricity Board v. Indian Aluminum Company 68 the Constitution Bench again approved and confirmed the view taken by the majority in
Gwalior
Rayon,112 however, without referring to Papiah.113 The relevant point is
106 107 108 109 110 111 112 113
AIR 1974 SC 1660. AIR 1975 SC 1007. Mathew, Krishna Iyer and Goswami JJ. Constitutional Law of India, 1976 Vol. II pp. 1204-05. Gwalior Rayon case, AIR 1974 SC 1660. AIR 1976 SC 1031. Gwalior Rayon Case, AIR 1974 SC 1660. AIR 1975 SC 1007.
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that Goswami; J. was one of the Judges in Papiah as well as in Kerala State Electricity Board. In these circumstances it can be said that in view of Kerala State Electricity Board, Papiah is impliedly overruled or no longer survives. However, even thereafter, in Kunjabmu 114 also, all the judgments were not considered by the Supreme Court and the issue was left open as the point was not decided finally. The Court observed,-; “We do not wish in this case, to search for the precise principles decided in the Delhi Laws Act case, nor to consider whether N. K. Papiah v. Excise Commissioner 115 beats the final retreat from the earlier position. For the purpose? of this case we are content to accept the ‘policy’ and ‘guidelines’ theory.116 In view of these pronouncements, the doctrine of excessive delegation must be regarded well established in India. Accordingly, it is necessary that while delegating legislative power, the legislature should lay down legislative policy, standards or guidelines for the delegate to follow. In Kujabmu 117 the Supreme Court has stated doctrine of excessive delegation in the following words : “The legislature cannot delegate its essential legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out policy.” 118 the Court held that the “power to legislate carries with it the power to de legate,” but “excessive delegation may amount to abdication” and “delegation unlimited may invite despotism uninhibited.” 119 120
- In a recent case, Parasuraman v. State of Tamil Nadu reiterating these principles and following the ratio laid down in earlier decisions,
the
Supreme
Court
held
in
Tamil
Nadu
Private
Educational Institutions (Regulations) Act, 1966 ultra vires. The
114 115 116 117 118 119 120
Registrar Co-op. Societies v, Kunjabmu, AIR 1980 SC 350 AIR 1975 SC 1007. Ibid, per Reddy, J. Registrar Co-op. Societies v, Kunjabmu, AIR 1980 SC 350 Ibid. Ibid. AIR 1990 SC 40, See also Brij Sunder v. First Addl. Dist. Judge, AIR 1989 SC 572. Page | 65
Supreme Court observed : “It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated. What is permissible is to leave to the delegated authority the task of implementing the object of the Act after the legislature lays adequate guidelines for the exercise of power.”121
- In Quarry Owners Association v. State of Bihar 122 the Apex Court has held that when policy is laid down in the legislation delegating power to the government it cannot be said to be arbitrary or excessive. The Court further added that accountability of the State Government to the state legislature is additional check against arbitrary exercise of power.
Therefore the principle of excessive delegation remains. Delegation of legislative power cannot go beyond permissible limits
e.g., essential
legislative function, determination of legislative policy, and formulation of rule of conduct.
II.
CLASSIFICATION OF DELEGATED LEGISLATION There are several ways for classifying delegated legislation —
Title based classification Parliament does not follow any particular policy in choosing the forms of delegated legislation. It is therefore, that delegated legislation appears in several forms viz., rules, regulations, orders, notification, bye-law, scheme and direction. The Committee on Minister's Powers recommended for the simplification of nomenclature. It suggested for confining the term ‘rule’ - to the statutory 121 Ibid; See also Jackson, R.M. Judicial Review of Legislative Policy, (1955) 18 Mad. L. Rev. 571 122 AIR 2000 SC 2870. Page | 66
instrument regulating procedure, the term ‘regulation’ to describe the substantive administrative rule- making and the term ‘order’ to be confined to instruments exercising executive and quasi- judicial decisions. Nature based classification Delegated legislation may also be classified on basis of the nature and extent of delegation of legislative power. According to the Committee on Ministers* powers, there are two types of parliamentary delegation : 1.
Normal Delegation There are two types of normal delegation : Positive delegation. — where the limits are clearly defined in the Parent Act, it is called positive delegation. Negative delegation. — where the delegated power does not include power to do certain things, it is known as negative delegation e.g. power to legislate on matters of policy or power to impose tax.
2.
Exceptional Delegation. Exceptional delegation is also known as Henry VIII clause. Instances of
exceptional delegation may be as follows : A.
Power to legislate on matters of principle.
B.
Power to amend Acts of Parliament.
C.
Power giving such a wide discretion that it is almost impossible to know the limits.
D.
Power to make rules which cannot be challenged in a court of law.
III.
IMPERMISSIBLE DELEGATION There is no specific bar in our Constitution against the delegation of
legislative power by the legislature to the Executive. However, it is now well settled that essential legislative functions cannot be delegated by the legislature to the executive. 123 It means that the legislative policy must be laid down by the legislature itself and by entrusting this power to the
123 Delhi Laws Act, 1912, Re, AIR 1951 SC 332; Hamdard DawakhanaM. Union of India, AIR 1960 SC 554; Brij Sunder v. First Add/. District Judge, AIR 1939 SC 572, Ramesh Birch v. Union of India, AIR 1990 SC 560. Page | 67
executive, the legislature cannot create a parallel legislature. Delegation of legislative power cannot amount to abdication of essential legislative functions.
FORMS OF DELEGATION There are various forms of delegated legislation. The reason for this is that there is no uniform pattern of delegation in the delegating legislations. Although
there
are
various
forms
of
delegation,
the
parameter
for
determining the question of validity is the same, that is, the legislature must lay down the policy of the Act. It is therefore that the doctrine of excessive delegation has been invoked in a large number of cases to determine the validity of provisions delegating legislative power. Some of these cases are discussed here to illustrate the working of the principle. The cases have been classified from the point of view of the nature of the power conferred under following broad categories : (a)
Amplification of policy.
(b)
Modification.
(c)
Removal of difficulties.
(d)
Inclusion and Exclusion.
(e) Taxation.
These categories are not mutually exclusive as they are governed by the same over all consideration of the principle of “excessive delegation”. The truth,
however,
remains
that
due
to
the
compulsions
of
modern
administration, the Courts have allowed extensive delegations of legislative power specially in the area of taxation and welfare legislation. This point will be clear from the following discussion of the cases in which the validity of delegated legislation has been challenged on the ground of excessive delegation.
I. Amplification of policy It is trite to say that to some extent, delegated legislation involves abandonment of its function by the legislature and enhancement of powers of administration. Many a time, the legislature passes Acts in “skeleton" form Page | 68
containing only the barest of general principles and leaves to the executive the task of not only filling in “details” but even that of amplifying policies. The legislature often uses broad-worded provisions, giving wide powers to the delegate to make such rules as appear to it to be “necessary” or “expedient” for carrying out the purposes of the Act without laying down any standards to guide the discretion of the delegate and the delegate is in substance given blank cheque to do whatever it likes in the delegated area of authority. In reality, under the skeleton type of legislation, the flesh and blood — not to mention the soul — of the scheme of legislative regulation are left entirely to administrative discretion. The vires — the limits — of the authority delegated have become so broad as to cover almost all administrative rule- making within the particular area of legislation. A good example of amplification of policy is Section 3 of the Essential Supplies (Temporary Powers) Act, 1946. Section 3 of the Act reads as follows: The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing the equitable distribution and availability at fair prices, may by notified order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. The validity of Section 3 was challenged on the ground of excessive delegation. Under this provision the executive was authorised to promulgate delegated legislation not only to fill in details in the statute but even to decide question of policy. However, in Hari Shankar Bagla v. State of Madhya Pradesh 124 , the Supreme Court upheld the delegation on the ground that the legislature has laid down the essential principles or policy of the
law,
namely,
“maintenance
or
increase
of
supply
of
essential
commodities and securing equitable distribution and availability at fair prices.” Delivering the judgment, Mahajan, C.J., observed : “The preamble and the body of sections s ufficiently formulate the legislative policy and the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating them to a certain 124 AIR 1954 SC 465.
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authority within the framework of that policy.” 125 In Bagla case 126 the validity of Section 6 of the Essential Supplies (Temporary Powers) Act was also challenged on the ground of excessive delegation of power to the Executive. Section 6 declares that an order made under section 3 shall have effect notwithstanding anything contained in any Act or instrument other than this Act. It was contended before the Court that the power would have the effect to repeal by implication any existing law and, therefore such a wide power could not be delegated on the authority of the Reference case. Rejecting the contention the Court held that Section 6 does not either expressly or impliedly repeal any of the provisions of the preexisting law. The purpose is simply to bypass them where they are inconsistent with the provision of the Essential Supplies (Temporary Powers) Act and orders made under it. The Court pointed out that even if it be conceded, for the sake of argument, that an existing law stood repealed by the extents of its repugnancy with the order made under Section 3, by implication, then the repeal “is not by an act of the delegate” but it is by the “legislative act of the Parliament itself” because it is Parliament which has declared in Section 6 that an order made under section 3 “shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act." In this way, judicial sanction was given to a very broad delegation of power. Similar is the case of A. V. Nachane v. Union of India 127 in which the Supreme
Court
upheld
a
statutory
provision
in
the
Life
Insurance
Corporation Act, 1956 where it was provided that the rules made under the Act shall have effect notwithstanding anything in the Industrial Disputes Act or any other law. However, there are a large number of other cases depicting the same type of judicial approach. In Bhatnagar & Co. v. Union of india128
129 was
involved the validity of section 3 (1)
125 Ibid. 126 Ibid. 1271982 AIR 1126 128 AIR 1982 SC 1126. 129 AIR 1957 SC 478.
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(a) of the Imports and Exports Control Act, 1947 which conferred wide powers on the Government to revoke import or export licence. The facts in this case were that the licence to import soda was revoked on the ground of trafficking in it. The statute is skeletal and gives no indication as to what considerations and policies are to be taken in view by the Government in revoking import licence. The Supreme Court held the delegation valid because it found the ghost of policy in the preceding statute, the Defence of India Act, 1939, the provisions of which the impugned Act purported to continue. For the control of import and export, the policies are developed in the area by the executive from time to time and for this purpose the Act in question gives no guidelines. Thus broad powers are left in this area to the executive.
In Makhan Singh v. State of Punjatb 130 the validity of section 3 of the Defence of India Act, 1962 was challenged on the ground of excessive delegation. Under this Section the Central Government was empowered to make rules, as it “appears expedient” to it for the Defence of India and maintenance of public order and safety. The Supreme Court upheld the delegation. In D. S. Garewal v. State of Punjab,131 the All India Services Act, 1951 is a skeleton statute of 4 sections. Section 3 of the Act authorised Central Government to make rules for regulation of conditions of service in All India Services. In exercise of this power, the government framed All India Services Discipline and Appeal Rules. The Court held the delegation valid and found the policy of the Act for guidance of administrative rule-making in the existing rules on the subject. 132 In a sense, all skeleton legislation involves amplification of policy. When delegation is so broad, however, that the legislative mandate is mere skeleton what are left to delegated legislation are not really only the mere details but most of the essential matters of policy as well. 130 AIR 1964 SC 387. 131 AIR 1959 SC 312. 132 A few other cases relating to amplification of policy are : Izhar Ahmad v. Union of India, AIR 1962 SC 1052; Vasanlal Maganbhai v. State of Bombay, AIR 1961 SC 4; Reghubar Dayal v. Union of India, AIR 1962 SC 263; and State of Nagaland v. Ratan Singh, AIR 1967 S.C. 212. Page | 71
II. Modification Sometimes, a provision is made in the statute conferring power on the executive to modify the existing statute itself. This is really a drastic power as it amounts to amendment of the Act which is legislative Act. In this way it makes the executive supreme even over the legislature. But sometimes such power is necessary for flexibility of approach to meet the changing circumstances. In Indian legislative practice the power to modify statutes has mostly been delegated as sequel to the power ot extension and application of laws. Thus, under the powers conferred by the Delhi Laws Act, 1912 the Central Government extended the application of the Bombay Agricultural Debtors’ Relief Act, 1947 to Delhi. The Bombay Act was limited in application to the agriculturists whose annual income was less then Rs. 500 but that limitation was removed by the Government. Power of modification has-also been given to administrative authorities in cases which may be characterised as “legislation by reference”. 133 This is a device by which the power to modify is delegated to make the adopted statute fit into the adoptive statute. For example, section 21 of Excess Profits Act, 1940 provides that the provisions of the section of Income Tax Act, 1922 mentioned therein shall apply with such modifications as may be made by rules. - Varieties of Modification. — In Hari Shanker Bagla v. State of Madhya Pradesh 134 The provision was considered and held valid, which laid down that the delegated legislation made under the enactment would be operative although inconsistent with some other enactment. In Banarsi Das v. State of Madhya Pradesh,135 the provision which empowered the delegate to bring in certain sale transactions under the purview of Sales-Tax Act was upheld against the challenge of excessive delegation.
133 Allen, Law in.the making p. 51 (7th Ed.); Law and Orders, p. 172 (3rd Ed.) 134 Text, supra. 135 AIR 1956 SC 909.
Page | 72
In Delhi Laws Act case136 it was held that power may be conferred on the executive to extend an enactment already in force in one area to other areas with modification as the executive considers fit. But the power to modify the underlying policy of Act is an essential legislative function and therefore delegation of power to modify an Act without any limitation is not valid.
In
Rai
Narain
Singh v.
Chairman,
Patna
Administration
Committee,137 the government picked a section out of an Act, modified it and applied it to another area. The Court held that the extension of only one section amounted to change in the legislative policy underlying the Act and hence it was invalid. In Lachmi Narain v. Union of India 138 the Court has observed that the power to make “restrictions and modifications” in the enactment sought to be extended is not a separate and independent power but is an integral constituent of the power of extension. This power exhausts itself once the enactment is extended, then the power of modification cannot be exercised again. The nature and extent of modification has been clarified by the Supreme Court in N.C.J. Mills Co. v. Asstt. Collector, Central Excises.139 In this case the Court said that the power to modify does not import the power to make essential changes and that “it is confined to alterations of a minor character and no change in principle is involved.” In this way, if the changes are not essential in character, the delegation is permissible. In Sri Ram v. State of Bomba y140, power was given to the government to vary the ceiling area if it was satisfied that it was expedient to do so in public interest. The Court upheld such a broad statement of policy as ‘public interest’ sufficient to uphold the vires of delegation.
III. Removal of difficulties — (Henry VIII clause) Sometimes, power is conferred on the government to modify the existing statute for the purpose of removing difficulties so that it may be brought into 136 137 138 139 140
Text, supra. Text, supra. AIR 1976 SC 714. AIR 1971 SC 454. AIR 1959 SC 459.
Page | 73
full operation. When the legislature passes an Act, it cannot foresee all the difficulties. Which may arise in implementing it. Legislature, therefore, introduces in the statute a “removal of difficulty” clause envisaging that government may remove any difficulty that may arise in putting the law into operation. Generally two types of “removal of difficulties” clauses are found
in the Indian statutes. 1. One, a narrow one which empowers the executive to exercise the power to remove difficulties consistent with the provisions of the enabling Act. In such a case, the Government cannot change any provisions of the statute itself; e.g., Section 128 of the States Re-organisation Act, 1956 lays down as under: If any difficulty arises in giving effect to the provisions of this Act, the President may by order do anything not inconsistent with such provisions which appears to him to be necessary or expedient for the purpose of removing difficulty. If the statute provides so, it is not objectionable. According to Committee on Minister’s Powers 141 the sole purpose of Parliament in enacting such a provision is “to enable minor adjustments of its own handiworks to be made for the purpose of fitting its principles into the fabric of existing legislation, general or local.” Sir Cecil Carr’s 142 view is that the device is draftsman’s insurance policy in case he has overlooked something. In exercise of such powers the government cannot modify the Parent Act nor can make any modification which is not consistent with the parent Act. 143 2. The other type of “removal of difficulties” clause is very broad and empowers the executive in the guise of removal of difficulties to modify even Parent Act or any other Act. A classic illustration of such clause is found in the Constitution, itself which under Article 392 (1) authorised the President to direct by order that the Constitution would, during such period, as might
141 The Committee on Ministers Powers Report, 1932 p. 36. 142 Concerning English Administrative Law, 1941 p. 44. 143 Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC 691; Sinai v. Union of India, AIR 1975 SC 797 Page | 74
be specified have effect subject to such adaptations, whether by way of modification, addition or omission, as he might deem to be necessary or expedient. This is nicknamed as Henry VIII Clause incorporated in the Constitution of India. Similarly, Article 372 of the Constitution conferred power of making adaptations and modifications in the existing law to bring it in accord with the Indian Constitution. However, it may be noted that such a provision is usually for a limited period. 1. Henry VIII Clause . — This type of delegating clause has acquired the nickname of Henry VIII Clause as personifying "executive autocracy”. Henry VIII was the King of England in the 16th Century. During his regime he enforced his will by-using instrumentality of Parliament for the purpose of removing difficulties which came in his way. The origin of “removal of difficulties” clause is thus linked with the name o f Henry VIII. According to the Committee on Minister’s Powers , “the King is regarded
popularly as impersonation of executive autocracy and such a clause cannot but be regarded as inconsistent with the principle of Parliamentary Government.” 144 2. Legality of the “removal of difficulties” clause. In Jalan Trading Co. v. Mill Mazdoor Sabha,145 the Supreme Court was called upon to consider the legality of such clause. Section 37 (1) of the Payment of Bonus Act, 1965 empowered the Central Government to make such provisions, not inconsistent with the purposes of the Act, as might be necessary or expedient for the removal of any doubts or ^difficulties in implementing the Bonus Act. Section 37 (2) made the order of the Central Government issued under sub-clause (1) final. By a majority of the Court held section 37 bad on the ground of excessive delegation inasmuch as the government was made sole Judge whether any difficulty or doubt had arisen in implementing the Act, whether it was necessary or expedient to remove such doubt or difficulty and whether the order made was consistent with the provisions of the Act. Further the order passed by the government was made ‘final’. In this way essential legislative power was delegated to the executive 144 Report. 1932, p. 61. 145 AIR 1967 SC 691.
Page | 75
which was not permissible. 146 Generally, the Supreme Court takes a liberal view of the "removal of difficulties” clause. In Gammon India Ltd. v. Union of India,147 Section 34 of the Contract Labour (Regulation and Abolition Act, 1970 provided that if any difficulty arises in implementing the provisions of the Act, the Central Government may make such provisions, not inconsistent with the provisions of the Act as appeared to it to be necessary or expedient for removing difficulty. Supreme Court held that section 34 is valid as it does not amount to excessive delegation. It simply authorises the Government for remove! of difficulties which might arise in giving effect to the law.
3. Hire and Fire rule. In West Bengal State Electricity Board v. Desh Bandhu Ghosh,' 148 Regulation 34 of West Bengal State Electricity Regulations was challenged on the ground that it was arbitrary and violative of Article 14 of the Constitution. Under Regulation 34, it was provided: "In case of a permanent employee, his services nfiay be terminated by serving three month’s notice or on payment of salary for the corresponding period in lieu thereof.” Declaring the said Regulation as arbitrary and ultra vires, the Supreme Court said, "on the face of it, the regulation Is totally arbitrary and confers on the Board a power which is capable of vicious discrimination. It is a naked ‘hire and fire' rule, the time for banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII Clause so familiar to administrative lawyers.” Similar is the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly .149 In this case Rule 9 (i) of the Central Inland Water Transport Corpn. Ltd. (Service, Discipline and Appeal) Rules, 1979 was challenged, which provides : (i) the Employment of a permanent employee shall be subject to termination on three months’ notice on either side. The 146 147 148 149
Ibid, p. 703. AIR 1974 SC 960 AIR 1985 SC 722. AIR 1986 SC 1571
Page | 76
notice shall be in writing on either side. The company may pay the equivalent of three months’ basic, pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice. Declaring the provision as ultra vires, arbitrary and unreasonable, the Supreme Court said: “No apter description of Rule 9 (1) can be given than to call it ‘the Henry VIII Clause’. It confers absolute and arbitrary power upon the corporation. It does not even state who on behalf of the corporation is to exercise that power.........There are no guidelines whatever laid down to indicate in what circumstances the power given by Rule 9 (i) is to be exercised by the corporation. No opportunity whatever of a hearing is at all to be afforded to the permanent employee whose service is being terminated in exercise of this power.” It is submitted that the Court, in these circumstances rightly described rule 9 (i) as the “Henry VIII Clause.” 4. Extent of the “Removal of Difficulties Clause”. In Sinai v. Union of India ,150 Sarkaria J. has observed that by using a ‘removal of difficulties’ clause the Government, “may slightly tinker with the Act to round off angularities and smoothen the joints or remove minor obscurities to make it workable but it cannot change features of the Act. In no case-can it, under the guise of removing a difficulty, change the scheme and essentials provisions of the Act." 151 The Committee on Ministers’ Powers has also given a clarion call that it would be dangerous in practice to permit the executive to change an Act of Parliament. It made the following recommendations: 152 “The use of so-called Henry VIII clause conferring power on a Minister to modify the provisions of Acts of Parliament should be abandoned in all but most exceptional cases and should not be permitted by Parliament except upon special grounds stated in a ministerial memorandum to the bill. Henry 150 AIR 1975 SC 797. 151 Ibid. 152 Cited by Mahajar J., In Delhi Laws Act Case, AIR 1951 SC 332 (372).
Page | 77
VIII clause should never be used except for sole purpose of bringing the Act into operation but subject to the limit of one year.” It is submitted that in India, the “removal of difficulties” clause cannot violate the doctrine of excessive delegation as laid down in the Delhi Laws Act case. Accordingly it cannot go beyond the permissible limits of delegation of legislative power.
IV.
Inclusion and Exclusion
As a matter of common practice, legislature passes law to confer power on the government to bring individuals, bodies or commodities within, or to exempt them from, the purview of a statute. In this way, the range of operation of a statute can be expanded or reduced through the device of delegated legislation. (i) Range of inclusion Sometimes, the legislature after passing the statute makes it applicable, in the first instance to some areas and class of persons, but empowers the government to extend the provisions thereof to different territories, persons, bodies or commodities. The Minimum Wages Act, 1948 has been passed, as mentioned in the preamble, “to provide for fixing minimum wages in certain employment”. The Act applies to the employments listed in the schedule, but the government is empowered to add any other employment thereto and thus to extend the operation of the Act to that employment. The legislature has not laid down any norms on which the government may exercise its power to add any employment to the schedule. Even then, in Edward Mills Co. v. State of Ajmer 153 , the Supreme Court held that the provision was valid as the policy was apparent on the face of the Act which was to fix Minimum Wages in order to avoid exploitation of labour in those industries wages were very low because of unorganised labour or other causes. In a number of cases,154 the power to add to the schedule has been upheld. The Punjab General Sales Tax Act, 1948 levied a Purchase Tax on
153 AIR 1955 SC 25. 154 Banarsi Das v. State of Madhya Pradesh, AIR 1958 SC 909; Sable Waghire & Co. v. Union of India AIR 1975 SC 1172. Page | 78
goods except the items mentioned in the schedule annexed. This meant that if the government added an item to the schedule it became tax exempt. In Babu Ram v. State of Punjab 155 the Supreme Court upheld the provision against challenge on the basis of excessive delegation. A statute may empower the executive to expand the range of its operation through methods other than amending schedule. For instance, the Essential Commodities Act, 1955 covers certain specified commodities mentioned in the Act and further gives power to the Central Government to declare any other commodity as ‘essential commodity’ and thus making the Act applicable to it as well. In Mohamed Ali v. Union of India 156 the Supreme Court upheld a provision of Employees’ Provident Funds Act, 1952 empowering the Central Government to bring within the purview of the Act such establishments as it might specify. But where the Court does not find any policy for guidance in the statute the provision is held invalid. Thus, in Hamdard Dawakhana v. Union of India,157 section 3 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 was challenged. This provision prohibited an advertisement suggesting that a medicine could be used for curug any veneral disease or any other disease specified in the rules. The Court held that no standards or principles had been laid down in this Act for specifying “any other disease” in the rules and hence the power delegated to make rules was invalid. (ii) Range of exclusion. There are certain statutes which give power to the government to exempt from their operation any persons, institutions or commodities. Such a provision is invariably upheld. For instance, in Jalan Trading Co. v. Mill Mazdoor Union,158 the Supreme Court held the provision valid, which authorised the Central Government to exempt any establishment from the range of the operation of the Act having regard to the financial position and relevant factors.
155 156 157 158
AIR 1979 SC 1475. AIR 1964 SC 980 AIR 1960 SC 554 AIR 1967 SC 691.
Page | 79
In Registrar Co-operative Societies v. K. Kunjabmu 159 the Court upheld the validity of section 60 of the Madras Co-operative Societies Act, 1932 which was a ‘near Henry VIII clause.” 160 Section 60 provides as follows : The State Government may by general or special order, exempt any registered society from any of the provisions of this Act or may direct that such provisions shall apply to such society with such modifications as may be prescribed in the order. Such a broad clause was held valid as the Court found the policy of the Act stated in the preamble, viz., to facilitate the formation and working of cooperative societies.
V. Taxation Taxing power is an inherent power of any State. In a democratic system, taxation is exclusively the function of legislature. The fundamental canon of democracy is “no taxation without representation.” Taxation is, therefore, a strong weapon in the hand of legislatures to control the executive. However, delegation has permeated even the tax area. When legislature passes the statute to levy a tax, it leaves some elements of taxing power to the executive. The doctrine of excessive delegation is applied by the Court to determine the validity of the delegation of taxing power. The permissible limits of a valid delegation of taxing power can be comprehended by analysing the individual cases decided by the Supreme Court. Power may be delegated to government to exempt an item from the purview of tax. In Orient Weaving Mills v. Union of India,161 a provision authorising the Central Government to exempt any excisable goods from duty was held valid against the plea of excessive delegation. Power may be given to the Central Government to bring additional transactions within the purview of a tax. In Banarsi Das v. State of Madhya Pradesh,162 delegation of power to the government to bring any goods within the purview of Sales-tax Law was upheld. 159 160 161 162
AIR 1980 SC 350. Per Chinnappa Raddy, J AIR 1963 SC 89. AIR 1958 SC 909.
Page | 80
Power to fix the rates to tax may be delegated to the executive. In Devi Das v. State of Punjab,163 the provision delegating power to the executive to determine the rate of tax oetween the minimum and maximum, viz., between 1% to 2% was held valid. The Court stated that it was all right to confer a reasonable area of discretion on the government by a fiscal statute. In Sita Ram Bishambhar Dayal v. State of Uttar Pradesh,164 the delegation of power to impose sale-tax not exceeding 5% was held valid by the Supreme Court as the rate prescribed was a reasonable upper limit. Similar is the case of V. Nagappa v. Iron Ore Mines Cess Commissioner.165 In this case a Central Act empowered the Central Government to levy a cess upto 50 paise per metric ton on iron and spend the money so collected on labour welfare. The delegation was held valid as the policy of the Act was so clearly stated. In Gwalior Rayon Siik Mfg. Co. v. Asstt. Commissioner,166 under section 8 (2) (b) of the Central Sales Tax Act, 1956, the Parliament did not fix the rate of Central Sales Tax but adopted the rate applicable to the sale or purchase of goods within the appropriate state in case such rate exceeds 10 per cent. The validity of the said section was challenged on the ground of excessive delegation because the Parliament in not fixing the rate itself and in adopting the rate applicable within the appropriate state has not laid down any policy under the Act and has, thus, abdicated its legislative function. The validity of the provision in question was upheld by the Supreme Court, holding sufficient guidelines were laid down in the Act by the Parliament. In N.K. Papiah v. Excise Commissioner,167 a provision authorising levy of excise duty “at such rate as the government may prescribe” was held valid, although neither any policy was laid down for guidance, nor any maximum rate was prescribed. For the reasons already given earlier, Papiah
163 164 165 166 167
AIR 1067 SC 1896. (1972) 29 STC 206 (SC). AIR 1973 SC 1374. AIR 1974 SC 1660. AIR 1975 SC 1007.
Page | 81
cannot be regarded as good law. A difficult case is Shama Rao v. Union Territory of Pondicherry.168 In this case Pondicherry legislature passed the Pondicherry General Sales Tax Act, 1965 and adopted the Madras Sales Tax Act, 1959, as in force in the State of Madras immediately before the commencement of the Act and the Government was authorised to issue notification of the commencement of the Act in Pondicherry. The result was that all the amendments to the Madras Act during the period of enactment and commencement of Pondicherry Act automatically became applicable to the Union Territory of Pondicherry. The Supreme Court held that this amounted to abdication of its power by the Pondicherry Legislature in favour of Madras Legislature and therefore Pondicherry Act was void and still born. A liberal judicial approach in the matter of delegation of legislative power is found in respect of municipal bodies. This point is being considered in the following pages. (I) Delegation in favour of municipalities and other taxing bodies. In view of the circumstances that the affairs of such bodies are administered by the elected representatives responsible to the people, broad delegations in their favour have been upheld in order to strengthen the institution of local self government. Thus, in Bangalore W.C. Mills v. Bangalore Corporation 169 a provision authorising a Municipal Corporation to levy octroi duty on commodities other than those mentioned in the Act was held valid. Similarly in Delhi Municipal Corporation v. Birla Cotton Spinning & Wvg. Mills,170 the power delegated to the Corporation to levy Electricity-tax without any limit was upheld valid on the ground of its representative character. In the same way in Corporation of Calcutta v. Liberty Cinema 171 the validity of the delegation of power to the Corporation to levy a licence fee on
168 169 170 171
AIR 1967 SC 1480. AIR 1962 SC 1263. AIR 1968 SC 1232. AIR 1965 SC 1107.
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cinema at such rate as may be resolved by the Corporation was upheld. Legislature may confer on municipal bodies a general power to levy whatever taxes the legislature itself could levy. This is a very broad delegation of power and on general principles such delegation should be invalid on the ground of excessive delegation as the statute lays down no policy to guide the municipalities. However, in Western India Theatres Ltd. v. Municipal Corporation,172 the Supreme Court upheld such a provision on the ground that only such taxes could be levied by the Corporation as were necessary for implementing the purposes specified in the delegating statute. Following the same principle the Supreme Court in Darshan Lai Mehra v. Union of India 173 held, Section 172 (2), U. P. Nagar Mahapalika Adhiniyam, 1959 as constitutional. This section had authorised the municipalities to impose taxes mentioned in the Act “for the purpose of the Act." Court declared that the words “for the purpose of the Act” lay down sufficient policy for the municipalities to impose tax and therefore so long as the tax has reasonable relation to the purpose of the Act the same cannot be held excessive delegation. Similarly in Mahe Beach Trading Company v. Union Territory of Pondicherry 174 the Supreme Court has laid down that if there is abdication of legislative power or there is excessive delegation or if there is total surrender or transfer by the legislature of its legislative functions to another body then that is not permissible. There is, however, no abdication, surrender of legislative functions or excessive delegation so long as the legislature has expressed its will on a particular subject matter, indicated its policy and left the effectuation of the policy to subordinate or subsidiary or ancillary legislation, provided the legislature has retained the control in its hand with reference to it so that it can act as a check or a standard and prevent or undo the mischief by subordinate legislation when it chooses to or thinks fit. In this case an Act passed by legislature had authorised a municipality to levy tax on petrol and diesel oil cold at petrol pump with retrospective effect. Its validity was challenged on ground of excessive
172 AIR 1965 SC 586. 173 (1992) 4 SCC 28. 174 (1996) 3 SCC 743
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delegation. However, its validity was upheld by the court as there was no excessive delegation. According to the Court whatever power was delegated, it was for effectuation of policy laid down by the legislature. In J. R. G. Manufacturing Association v. Union of India,175 the Court further upheld the validity of section 12 (2) of the Rubber Act which authorised the Rubber Board to impose an excise duty either on the producers of rubber or the manufacturers of rubber goods. The Court rejected the challenge of excessive delegation on the ground of representative character of the Board and Control by Central Government. It was provided in the Act that tax can be levied in accordance with the rules framed by the government subject to laying before Parliament. (ii) Imposition of Tax by the Government, on failure of municipalities to Impose Tax. In Avinder Singh v. State of Punjab,176 where a municipality failed to carry out its direction to Impose Sales Tax at the rate of Rs. 10/- per bottle of foreign liquor, the State Government imposed-tax itself for the purposes of the municipality. The Act in question did not prescribe any minima or maxima of the rates of tax. The statutory provisions were held valid. The Court made no difference in principle whether the tax was directly imposed by the municipality or the Government for the purposes of the former and not to replenish its coffers. All these decisions show that very wide delegations of taxing power are permissible to the municipal bodies in view of their representative and responsive character. It may, however, be stated that even in U.S.A. the Courts have made an exception in favour of municipalities on the question of validity of delegated legislation. 177
CHAPTER 7 175 AIR 1970 SC 1589. 176 AIR 1979 SC 321 177 Gellhorn and Byse, Administrative Law : Cases and Comments, 128; Foster, The Delegation of Legislative power to Administrative Officers, 7 III. L.R. 39; 398 (1913). Page | 84
COMPARATIVE ANALYSIS OF DL AMONG ENGLAND, USA AND INDIA
I. ENGLAND In England, Parliament is sovereign. In principle, it is only Parliament which can enact laws. But as observed by C.K. Allen, “Nothing is more striking in the legal and social history of the 19th century in England than the development of subordinate legislation.” 178 Maitland also said:
Year by year the subordinate Government of England is becoming more and more important. The new movement set in with the Reform Bill of 1832: it has gone far already and assuredly it will go farther. We are becoming a much governed nation, governed by all manner of councils and boards and officers, central and local, high and low, exercising the powers which have been committed to them by modern statutes statutes..179 The reasons for growth of delegated delegated legislation legislation in other countries were equally responsible for the development of delegated legislation in England. Parliament had no time to deal with various matters in detail. Complexity, technicality, emergency and expediency compelled Parliament to delegate its “legislative office” to the government. - Traditionally, Traditionally, administrative administrative legislation legislation was looked upon as an evil, but gradually it came to be regarded as justifiable in principle. It was realised that legislation and administration were not two fundamentally different forms
of
power.
Tests
formulated
to
distinguish
legislative
and
administrative functions proved insufficient and inappropriate. 180 But at the same time, administrative law had not been accepted as a developed and recognised branch of law. Taylor, therefore, observed: 178 Law in the Making (1993) Making (1993) 531. 179 Cited by C.K. Allen, Constitutional History of England, 501. 180 Wade & Forsyth, Administrative Law (2009) 731. See, See, for distinction between legislative and administrative functions, Lecture III.
Page | 85
Until August 1914 a sensible law abiding Englishman could pass through life and hardly notice the existence of the State, beyond the post office and the policeman .181 It was during the two World Wars, that there was a tremendous increase in delegated legislation. Massive inroads were made into comparatively personal matters of citizens, e.g. e.g. housing, education, employment, pension, health, planning, production, preservation and distribution of essential.
- I t o b s e r v e d b y A l l e n - We doubt, doubt, whether whether Parliament Parliament itself itself has has fully realised realised how extensive extensive the practice of delegated delegated legislation legislation has become, or the extent to which it has surrendered its own functions in the process, or how easily the practice might be abused. 182 -
The Committee rightly stated:- The system of delegated legislation is both legitimate by permissible and constitutionally desirable for certain purposes, within within certain limits, and under under certain certain safeguards. safeguards. 183
(i)
Absolute Delegation
In Britain, there prevails the principle of sovereignty of Parliament. This doctrine implies that Parliament is supreme and has unlimited power to make any law. Consequently Courts cannot question parliamentary law on any ground. In R. v. R. v. Hallidaj 184, it has been rightly observed, “The British Constitution has entrusted to the two Houses of Parliament, subject to the assent of the king, an absolute power untrammelled by any instrument obedience to which may be compelled by some judicial body.” Parliam ent may accordingly delegate to any extent its powers of law-making to an
181 181 English History (1914-1945) 1; see also, Report of Committee on Ministers’ Powers (1932) 3; See, for See, for detailed discussion. commodities, social security, etc. In the 20th century, Parliament was obliged to delegate extensive law-making power in favour of the government. A hue and cry was raised against the growth of such delegated legislation. The matter was, therefore, therefore , referred to the Committee on Ministers’ Powers (Donoughmore Committee) in 1929. The Committee submitted its report in 1932. 182 Report of Committee on Ministers’ Powers (1932) Powers (1932) 62. 183 Ibid, 51. Ibid, 51. 184 1917 AC 260. Page | 86
outside authority. The limits of delegated legislation in the British Constitution, if there are to be any, therefore remain a question of policy and not a justiciable issue to be decided by the courts of law. The doctrine of excessive delegation has no application in Britain.
(ii) Remedy in the hands of Parliament An important point to note is that in Britain the remedy lies in the hands of Parliament itself. Parliament can control the delegation of power by it if it so pleases. There is no external agency to compel Parliament to do so. It is not necessary for Parliament to lay down in a delegating statute any standard, policy or norm for guiding the delegate in exercising exercising the power entrusted to him. The delegate may be left free to draft delegated legislation in any way he likes. He can evolve his own policy or standard in exercising delegated power. -
However, sovereignty of Parliament does not mean that there are no principles to which the practice of delegation must conform. It has been suggested by the Committee on Minister's Powers : “The precise limits of law-making power which Parliament intends to confer on a Minister should always be expressly defined in clear language by the statute which confers it : When discretion is conferred its limits should be defined with equal clearness.” The committee, it should be noted, exp essed a principle basically similar to standard requirement.
II. U.S.A. -
Delegation in Theory
- The American
rule against non-delegability non-delega bility of legislative power is
primarily based on the doctrine of separation of powers. The framers of the U.S.A. Constitution were greatly dominated by the ideas of Montesquieu and Locke that concentration of powers — legislative, legislative, executive and judicial — — in in the hands of a single organ of the government spelt tyranny. 185 The U.S. does not expressly provide for a separation of
185 Willis, Constitutional Law (1938), 135. Washington thought that consolidation of governmental powers in one body created a 'real despotism' : Washington's Farewell Ad- Page | 87
powers, but it is implied from the division of powers into three categories, the legislative, executive and judicial. 186 "It is considered to be an essential principle underlying the Constitution" observed the Supreme Court in Field v. Clarke, 187 "that powers entrusted to one department should be exercised exclusively by that department without encroaching upon the powers of another." 188 And it was pointed out in that case: "that Congress cannot delegate legislative power to the President is a principle universally recognised as vital to the integrity and maintenance of the system of government ordained by the Constitution. 189 -
In American Constitution we find a different principle in operation. The position is different in the sense that under the Constitution of U.S.A., delegated legislation is not recognised in theory because of two doctrines :
(a) The doctrine of separation of powers The U.S. Constitution is based on the doctrine of separation of powers. By Article 1, legislative power is expressly conferred on the Congress, and Article II states that the executive power shall be vested in a President and under Article III, the judiciary has power to interpret the Constitution and declare any statute unconstitutional if it does not conform to the provisions of the Constitution. In the leading case of Field v. Clark 190 the American Supreme Court observed: -
“The Congress cannot delegate legislative power to the President is a principle
universally
maintenance
of
the
recognised system
and of
vital
to
government
the
integrity
ordained
by
and the
Constitution.” 191 (b) Delegatus non potest delegare : A delegate cannot further delegate dress. John Adams said that tyranny could be checked only by "balancing one of the powers against the other two " : Works, (vol. I, p. 186). 186 Springer v. Philiphine Islands, 277 U.S. 189, 201; Youngs Town Sheet and Tube Co. v: Sawyer, 343 U.S. 579, 589. 187 143 U.S. 649 (1892) 188 Ibid. 189 Schwartz, American Administrative Law, p. 30. 190 (1892) 143 US 649. 191 Ibid, at p. 692 (Per Harlan, J.), See also Springer v. Pnillipine Islands (1928) 277 US 189 ; Puckley v. Valeo, (1976) 424 US 1. Page | 88
Besides the doctrine of separation of powers, the U.S. Supreme Court has also invoked the doctrine of delegatus non potest delegare against delegation by the Congress. The doctrine means that a delegate cannot further delegate its powers. As the Congress gets power from the people, and is a delegate of the people in that sense, it cannot further delegate its legislative power to the executive or to any other agency. Legislatures stand in this relation to the people whom they represent. Hence, it is a cardinal principle of representative government, that legislature cannot delegate the power to make laws to any other body or authority.192 -
Delegatus non protest delegare is a fundamental principle of delegation jurisprudence. Clarifying the scope and limit of this principle, the Court held that the Central Government can delegate any of its statutory power to the State Government, if permitted by law. However, two factors would determine its validity : (i) whether subdelegation is authorised by statute either expressly or impliedly, (ii) whether, excise of sub-delegation is within the scope and limit of delegation, meaning thereby that even if statutory power to delegate functions is expressed in wide general terms it will not necessarily extend to everything. The Court explained that implied sub-delegation is commonly not the characteristic found in peace time legislation. 193 Applying the principle, the Court held that if a guideline for determining inter se seniority was to be laid down, the State alone could do so in terms of Article 162 of the Constitution.194
Delegation in practice In theory, it was not possible for the Congress to delegate its
legislative power to the executive. However, strict adherence to the nondelegation doctrine was not practicable. Due to increase in governmental functions, it was impossible for the Congress to enact all the statutes with all particular details. The Supreme Court recognised this reality and tried to create “a balance between the two conflicting forces : doctrine of
192 Locke's Appeal, (1873) p. 491 (497) cited by Schwartz : Administrative Law, 1984, pp. 35-36. 193 S. Samuel M.D. Harrison Malayalam v. Union of India, (2004) 1 SCC 256. 194 Pramod K. Pankaj v. Stale of Bihar, ( 2004) 3 SCC 723, Page | 89
separation of powers barring delegation and the inevitability of delegation due to the exigencies of the modern government.” 195 The most that can be asked under the separation of powers doctrine is that the Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, ‘fill in the blanks’, or apply the standards to particular cases.196 Thus, pragmatic considerations have prevailed over theoretical objections. With the change in time, the courts have relaxed the rigours of the doctrine of separation of powers and permitted broad delegation of powers provided that the Congress itself should lay down policies or standards for the guidance of delegate. The Congress should not give a blank cheque to the Executive to make any rules it likes. If this is done, it would amount to an abdication of functions by the Congress. The point to be noted is that if Congress transfers to others “the essential legislative functions with which it is vested” the statute doing so will be held unconstitutional. The test in the words of Justice Cardozo is : “to uphold the delegation there is need to discover in terms of the Act a standard reasonably clear whereby the discretion must be governed.” 197 If the statute contains no standard to limit delegation of power, it amounts to giving a blank cheque to make law in the delegated area of authority and, thus, the agency rather than the Congress becomes primary legislator. The working of this rule is illustrated with reference to a few cases. -
In Panama Refining Co. v. Ryan,198 popularly known as the Hot Oil case, Congress authorised the President to ban oil in inter-statecommerce when it was produced in excess of quota fixed by each state. The policy of the Act was “to encourage national industrial recovery” and “to foster fair competition". The majority of the court held that “the
195 Indian Law Institute : Cases and Materials on Administrative Law in India. 1966 Vol. 1 pp. 188-89. 196 Rehniquist, J. in Industrial Deptt. v. American Petroleum Institute, (1980) 448 U.S. 607 (675). 197 Panama Refining Co. v. Ryan, 293 US 338, 434 (1935). 198 Ibid. Page | 90
Congress has declared no policy, has established no standard, has laid down no rule”. Accordingly the delegation in favour of the President was impermissible and the Act was unconstitutional. -
In Schechter Poultry Corporation v. United States199 (sick chicken case), the Supreme Court considered the question of constitutionality of section 3 of the National Industrial Recovery Act, 1933. The President
was
authorised
under
it
to
approve
‘Codes
of
Fair
competition’ for particular trades and industries. Its violation was made punishable. The court held that Section 3 was unconstitutional as no standard was laid down for approving a code for any trade or industry. According to the court it was a case of virtual abdication of legislative powers by the Congress. Since Schechter Case, 200 201 however, the Supreme Court had taken a liberal view and in a number of cases delegation of legislative power has been upheld. Thus,
in
National
Broadcasting
Co.
U.S.202
v.
Federal
Communication Committee was given vast powers to license broadcasting stations under the Communications Act, 1934. The criterion was ‘public interest, convenience or necessity’. Although it was vague and ambiguous the Supreme Court held it to be a valid standard. Similarly, in Yakus v. U.S.,203 under
the
Emergency
Price
Control
Act,
1942,
the
Price
Administrator was given authority, when, in his judgment, commodity prices rose or threatened to rise” to an extent or in a manner inconsistent “with the purpose” of the Act, to establish such maximum price or prices as in his judgment will be generally fair, equitable and will effectuate the purposes of the Act. The court sustained the statute on the ground that sufficiently
precise
standards
were
prescribed
to
confine
the
Administrator's regulations and orders within fixed limits.
199 200 201 202 203
295 U.S. 495 (1935), Ibid. (1943) 319 U.S. 190. 319 U.S. 190 (1943) 321 US 414 (1944).
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-
Cardozo J stated, “This was delegation running riot.”
-
After the two cases mentioned above, however, the Supreme Court took a liberal view and in many cases, upheld delegation of legislative power. Thus, in National Broadcasting Co. v. United States 204, vast
powers were conferred upon the Federal Communication Committee (FCC) to licence broadcasting stations under the Communications Act, 1934. The criterion was “public interest, convenience or necessity”. Though it was vague and ambiguous, the Supreme Court held it to be a valid standard. Similarly, in Yakus v. United States 205206 , under the Emergency Price Control Act, 1942, the Price Administrator was given the power to fix such maximum price which “in his judgment will be generally fair and equitable and will effectuate the purposes of the Act”. The Administrator was required, so far as practicable, to give due consideration to the prices prevailing between 1 October and 15 October 1941, but was allowed to consider a later date if necessary data were not available, and yet the Supreme Court sustained the delegation, holding that the standards were adequate. Roberts J (minority view) rightly observed that by the majority judgment, Sick Chicken case was overruled. In hitcher v. United States 207, the Reorganisation Act, 1942, empow-
-
ered administrative officers to determine whether the prices were excessive and to recover profits which they determined to be excessive. The Supreme Court held the delegation valid observing that the statutory term “excessive profits” was a sufficient expression of legislative policy and standards to render it constitutional. -
Davis208 maintains that the “greatest delegation” was sanctioned by the Supreme Court as the “judicial language about standard was
204 205 206 207 208
319 US 190 (1943). 321 US 414 (1944). (1935) 295 US 495: 79 L Ed 1370. (1947) 334 US 742. Administrative Law (1951) 45-54.
Page | 92
artificial”. According to him, the definition of “excessive profits” was given as excessive means excessive. -
In Fahey v. Mallonee 209 , the relevant Act empowered the Board to issue
regulations
prescribing
terms
and
conditions
on
which
mismanaged loan associations could be taken over. The District Court held that there was no criterion to guide the exercise of authority conferred and the delegation was bad. The Supreme Court accepted that there was no “express legislative standard”, but declared the law valid observing that the provision was regulatory and not penal. A discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowed to authorise creation of new crimes in unchartered fields.
-
In Mistretta v. United States 210 (Mistretta), sentencing guidelines were promulgated by the US Sentencing Commission under the Sentencing Reforms Act, 1984. The guidelines provided range to determinate sentences for categories of offences and offenders according to various factors specified by the Commission. Mistretta, who was indicted for sale of cocaine, challenged the guidelines contending
that
Congress
delegated
excessive
authority
to
the
Commission to structure the guidelines.
The Supreme Court conceded that the contention of the petitioner
that
the
Commission
had
significant
discretion
in
formulating guidelines could not be disputed. It has also power to determine which crimes should be punished leniently or severely. But that did not mean that there was no “policy”. Congress while conferring power on the Commission neither delegated legislative power to the executive nor upset the constitutionally mandated balance of powers among the co-ordinate branches.
209 332 US 245 (1947). 210 488 U.S. 361 (1989)
Page | 93
The Constitution’s structural protection does not prohibit Congress from delegating to an expert body located within the Judicial Branch the intricate task of formulating sentencing guidelines consistent with such significant statutory directions. Critics opine that Mistretta rang “death knell” of the doctrine of nondelegation. In Whiteman v. American Trucking Assn.211, the legislature delegated legislative
power
to
the
Environmental
Protection
Agency
(EPA)
to
promulgate “air quality criteria”. The relevant Act also authorised EPA to review such standard and make “such revisions as may be appropriate”. The provision was challenged on the ground of excessive delegation of legislative power to EPA without providing “intelligible principle”. The Court of Appeal upheld the contention. The Supreme Court, however, held the delegation valid observing that a certain degree of discretion to the Agency could be allowed. Referring to Mistretta, the court stated that to require the EPA “to set quality standards at the level that is ‘requisite’,— that is not lower or higher than is necessary — to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.” Scalia J. rightly commented that wholesale delegations thus became the rule rather than, as they once were, the exception. Conclusion - There are not many cases of the United States Supreme Court declaring congressional legislation unconstitutional because of excessive delegation. The exigencies of modern government have persuaded the courts to take liberal view of delegation. In a large number of cases, very broad delegations have been upheld and very vague phrases have been held as laying down standards. The position is so much so that one commentator has remarked :
211 531 U.S. 457 (2001),
Page | 94
“Judicial language about standards is artificial.” 212 But the basic premise still remains that Congress cannot delegate legislative power without prescribing standards. Whether this test is satisfied or not is a ma.:?r to be determined by the Courts. Legislative prescription of standards is not final. The courts do reserve to themselves the power to declare delegation of legislative power unconstitutional if they feel that in a given case the delegation is too broad and indefinite. Even though in practice the Supreme Court of U.S.A. has upheld broad delegations under the impact of exigencies of government in modern times, the court always reiterates the doctrine of excessive delegation. Due to the continuance of the doctrine of excessive delegation, the Congress does seek to lay down some standards in the Legislation delegating legislative power. -
However, American decisions show that there has been progressive breakdown of the non-delegation theory that legislative power cannot be delegated. Hence Professor Cushman’s Syllogism :
“Major Premiss: Legislative power cannot be constitutionally delegated by Congress. Minor Premiss: It is essential that certain powers be delegated to administrative officers and regulatory commissions. Therefore, the powers thus delegated are not legislative powers.” 213
III. (i)
INDIA
Pre-Constitution Period. That before the Constitution of India came Into force in 1950, Indian
Legislatures were the creatures of law passed by the British Parliament and thus they were characterised as non-sovereign law-making bodies. 2 The question of the validity of delegation of legislative power by an Indian Legislature was raised for the first time in the Burah case decided in 1878 As regards pre-Constitution period relating to delegated legislation in India, Queen
v. Burah214is
considered
to
be
the
leading
authority
212 Davis, Administrative Law, 54 (1951). 213 Schwartz, American Administrative Law, 1984 p. 47. 214 (1878) 3 AC 889.
Page | 95
propounding the doctrine of conditional legislation. In 1869, the Indian legislature passed an Act purporting to remove the district of Garo Hills from the jurisdiction of the civil and criminal courts and the law applied therein, and to vest the administration of civil and criminal justice within the same district in such officers as the Lieutenant-Governor of Bengal might appoint for the purpose. By section 9, the Lieutenant-Governor was empowered from time to time, by notification in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the provisions contained in the Act to the Jaintia, Naga and Khasia Hills and to fix the date of application thereof as well. By a notification dated October 14, 1871, the Lieutenant Governer extended all the provisions of notification which was challenged by Burah who was convicted of murder and sentenced to death. The High Court of Calcutta by a majority upheld the contention of the appellant and held that section 9 of the Act was ultra vires the powers of the Indian Legislature. In the opinion of the Court, the Indian Legislature was a delegate of the Imperial Parliament and as such further delegation was not permissible. Thereupon the Government appealed to the Privy Council. The Act was held valid by the Privy Council. It was held that the Indian Legislature was not an agency or delegate of Imperial Parliament and it had plenary powers of legislation as those of Imperial Parliament. It agreed that the Governor-General in Council could not, by legislation create a new legislative power in India not created or authorised by the Council's Act of Imperial Parliament. However, in fact it was not done. It was a case of only conditional legislation, as the Governor was not empowered to pass new laws but merely to extend the provisions of the Act already passed by the competent legislature upon fulfilment of certain conditions. The decision of
the
Privy Council is
open to
two different
interpretations. One interpretation is that since the Indian legislature is not a delegate of British Parliament, there is no limit on the delegation of legislative power. But the other interpretation is that since Privy Council has validated only conditional legislation, therefore, delegation of legislative Page | 96
power is not permissible. 215 In the Banwarilal’ s case,216 was involved an Ordinance issued by the Govenor-General 2 providing for the setting up of special criminal courts for trial of certain offences. The Ordinance contained provisions regarding the jurisdiction and procedure, etc. of such courts. It did not itself set up any of these courts, but provided that it shall come into force in any province only if the Provincial Government being satisfied of the existence of an emergency.. . . declares it to be in force in the province . . . ." The validity of the Ordinance was challenged on the ground that it amounted to "delegated legislation" in so far as the Governor General sought to pass the decision regarding the existence of an emergency to the provincial government instead of deciding it for himself. The Privy Council held that the Ordinance was not delegated legislation. The Governor-General had not delegated his legislative powers at all. The Ordinance was merely : an example of the, not uncommon legislative arrangement by which the local application of the provision of a Statute is determined by the judgment of a local administrative body as to its necessity. - The question of constitutional validity of delegation of powers came for consideration before the Federal Court in Jatindra Nath Gupta v. Province of Bihar. 217 In this case the validity of section 1(3) of Bihar Maintenance of Public Order Act, 1948 was challenged on the ground that it empowered the Provincial Government to extend the life of the Act for one year with such modification as it may deem fit. The Federal Court held that the power of extension with modification is not a valid delegation of legislative power because it is an essential legislative function which cannot be delegated. In this way for the first time it was ruled that in India Legislative powers cannot be delegated. 218
215 216 217 218
AIR 1949 FC 175. (1949) F.L.R. 225; AIR 1949 P.C. 115. AIR 1949 FC 175. Delegated Legislation in I ndia, p. 81 (1964) ; Indian Law Institute, New Delhi, Publication. Page | 97
(ii) (a)
Post-Constitution Period Constitutionality of Delegated Legislation. — As the decision in
Jatindra Nath ’s case had created confusion, the question of permissible limits of delegation of legislative power became important. Therefore, in order to get the position of law clarified, the President of India sought the opinion of Supreme Court under Article 143 of the Constitution. The question of law which was referred to the Supreme Court was of great Constitutional importance and was first of its kind. The provision of three Acts, viz.,
Section 7 of the Delhi Laws Act, 1912; The Provincial Government may, by notification, in the official Gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.
Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947; and The Centra l Government may, by notification in the official Gazette, extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other province at the date of such notification.
Section 2 of the Part C States (Laws) Act, 1950, were in issue in Delhi Laws Act Case, Re. 219 The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar. Islands) or to any part of such State, with such restrictions and modifications as it think fit, any enactment which is in force in a Part A State at the date of the notffication : And 'provision 219 AIR 1951 SC 332.
Page | 98
may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a central Act) which is for the time being applicable to that Part C State.
- There were a few Part C States. Delhi was one of them. Part C States were under the direct administration of the Central Government as they had no legislature of their own. Parliament had to legislate for these States. It was, therefore, that Parliament passed a law, the Part C States (Laws) Act, 1950. - 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 restriction 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 law) which might be in force in the Part C States. Really, it was a very sweeping kind of delegation. - The Supreme Court was called upon to determine the constitutionality of this provision. All the seven judges who participated in the reference gave seven separate judgments “exhibiting a cleavage of judicial opinions on the question of limits to which the legislature in India should be permitted to delegate legislative power”. 220 By a majority, the specific provision in question was held valid subject to two limitations : (1)
The executive cannot be authorised to repeal a law in force and thus,
the provision which authorised the Central Government to repeal a law already in force in the Part C States was bad; and
(2)
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.
(b)
Principles laid down in the Reference Case.
In Re Delhi Laws Act may be said to be “Siddhanatawali” as regards constitutionality of delegated legislation. The importance of the case cannot 220 M.P. Jain, Principles of Administrative Law, 1986, p. 38.
Page | 99
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. 221 In this case it was propounded : (a) Parliament cannot abdicate or efface itself by creating a parallel legislative body. (b) Power of delegation is ancillary to the power of legislation. (c) The limitation upon delegation of legislative power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the Constitution. Essential legislative power means laying down policy of law and enacting that policy into a binding rule of conduct. 222 (d) Power to repeal is legislative and it cannot be delegated. The theme of Re Delhi Laws Act case is that essential legislative function cannot be delegated whereas non-essential can be delegated.
Subsequent Decisions Clarifying the Delhi Laws Act Case
In Hari Shankar Bagla V. M.
P.
State 223 the Supreme court unani-
mously deduced a binding rule from its earlier decision in the Delhi Laws Act case to the effect that essential powers of legislation could not be delegated. In other words, the legislature could not delegate its function of laying down legislative policy in respect of any measure and its formulation as a rule of conduct. The legislature must declare the policy of the law and the legal principles which were to control any given cases and must provide a standard to guide the officials or the body in power to execute law. The essential legislative function consisted in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. 221 Ibid. 222 Indian Law Institute, Cases and materials on Administrative Law in India, 1966, p. 220. 223 1954 S.C. 465, 468. Page | 100
The Supreme Court in Rajnarain Singh v. Chairman, Patna Administration Committee 224 analysed in detail the Delhi Laws Act case with reference top specific powers delegated therein. The court in that case had the following problems'. In each, case, the Central Legislature had empowered an executive authority under its legislative control to apply, at its discretion, laws to an area which was also under the legislative sway of the Centre. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. The variations were as follows : (1) Where the executive authority was permitted, at its discretion, to apply 'without modification (save inc dental changes such as name and place), the whole of any Central Act already in existence in Any part of India under the legislative sway of the Centre to the new area - This was upheld by a majority of six to one. (2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances : - This was also upheld, but this time by a majority of five to two. (3) Where the executive authority was permitted to select future Central laws and apply them in a similar way : - This wa s up he ld by fi ve to tw o. (4) Where the authorisation was to select future Provincial laws and apply them as above. - This was also, upheld by five to two. (5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws, Central or Provincial, with or without modification : - This was held to be ultra sires by a majority of four to three. 224 A.I.R. 1954 S.C. 569.
Page | 101
(6) Where the authorisation was to apply existing laws, either Central or Provincial, with alterations and modifications : and (7) Where the authorisation was to apply future laws under the same conditions. The view of the various members of the bench were not as clear cut here as in the first five cases. - Their Lordships after looking to the above problems and relying on the majority view given in the Delhi Laws Act case held that an executive authority can be authorised to modify either existing or future laws but not in any essential feature.
Page | 102
CHAPTER - 9 Judicial Control over Delegated Legislation
That due to the complexities and exigencies of intensive form of government, the institution of delegated legislation has come to stay. In almost all the Countries the technique of delegated legislation is used at a large scale and some legislative powers are delegated by the legislature to the executive. Delegation of Legislative Powers to the executive has to be conceded within the permissible limits. However, there is inherent danger of abuse of the legislative power by the executive authorities. - The need, therefore, is that of controlling the delegate in exercising his legislative powers. The Committee on Ministers’ Powers has rightly observed that though the practice of delegated legislation is not bad, “risks of abuse are incidental to it” and there fore safeguards are necessary, “if the country is to continue the advantages of the practice without suffering from its inherent dangers.” Therefore, “today the question is not whether delegated legislation is desirable or not, but it is what controls and safeguards can be introduced so that the power conferred is not misused or misapplied.”225 -
Attention toward the abuse of delegated legislation was drawn by the Committee on Ministers’ Powers in the following words :
“We doubt, however, whether Parliament its elf has fully realised how extensive the practice of delegation has become, or the extent to which it has surrendered its own functions in the process, or how easily the practice might be abused.” 226 - There is need of compromise between two conflicting principles; one permitting very wide powers of delegation for practical reasons while the other that no new legislative bodies should be set up by
225 Committee on Subordinate Legislation (First Lok Sabha), 1954 (3rd Report) p. 16; See also Jain, M.P.,Principles of Administrative Law, 1986, p. 60; Wheare, K.C., Controlling Delegated Legislation; A BritishExperiment, (1949) 11 Jour. Pol. 748. 226 Vasantlal Maganbhai v. State of Bombay, AIR 1961 SC 4 at p. 12. Page | 103
transferring
essential
legislative
functions
to
administrative
authorities.227 I.
According to Krishna Iyer, J., “ The system of law-making and performance auditing needs careful, yet radical restructuring, if participative, pluralist Government by the people is not to be jettisoned”.228
II.
Subba Rao, J.,229 as he then was has rightly observed : “There is danger inherent in such a process of delegation. An overburdened legislature or one controlled by the powerful executive may unduly overstep the limits of delegation. It may not lay down policy at all, it may declare its policy in vague and general terms; it may not lay down any standard for the guidance of the executive, it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits.” 230
The control-mechanism of delegated legislation is exercised at two stages:(i)
At the stage of delegation of legislative power by legislature to the executive. The question here is what should be the limits of delegation of legislative power ? What is required here is that safeguards must be provided when the legislature confers the legislative power on the administration.
(ii)
At the stage of exercise of the delegated power by the executive. The requirement here is that some safeguards must be provided in the case of misuse or abuse of power by the executive. In this chapter, we will
227 228 229 230
Per Bose, J. in Delhi Laws Act case, AIR 1951 SC 332. Avirtdar Singh v. State of Punjab, AIR 1979 SC 321. Devi Das v. State of Punjab, AIR 1967 SC 1895. Ibid, at p. 1901.
Page | 104
consider certain controls and safeguards against the possible abuse of legislature by the executive authorities.
JUDICIAL CONTROL : DOCTRINE OF ULTRA VIRES
In the control-mechanism, judicial control has emerged as the most outstanding controlling measure. Judicial control over delegated legislation is exercised by applying two tests :
1. Substantive ultra vires; and 2. Procedural ultra vires.
Meaning of Ultra Vires
- Ultra vires means beyond powers, when a
subordinate legislation goes beyond the scope of authority conferred on the delegate to enact, it is known as substantive ultra vires. It is a fundamental principle of law that a public authority cannot act outside the powers and if the authority acts, ‘such act becomes ultra vires and, accordingly void’.231 It has been rightly described as ‘the central principle’ and ‘foundation of large part of administrative law’.232 An act which is done in excess of power is ultra vires.
I.
When a subordinate legislation is enacted without complying with the procedural requirements prescribed by the Parent Act or by the general law, it is known as procedural ultra vires. In case of procedural ultra vires, the Courts may or may not quash delegated legislation as it depends upon the circumstances whether the procedure is held to be mandatory or directory.
II.
Judicial control over delegated legislation is exercised by applying the doctrine of ultra vires in a number of circumstances
233 .
Which
are as follows :I.
Delegated legislation in conflict with the Parent Act 231 Basu Administrative Law, 1984, p. 12. 232 Wade, Administrative Law, 1988, p. 39. 233 As per Venkataramiah, J., in Indian Express Newspapers v. Union of India, AIR 1985 SC 515, Page | 105
II.
Delegated Legislation in excess of the power conferred by the Parent Act
III.
Where delegated legislation is ultra vires the Parent Act
IV.
Where delegated legislation is ultra vires the Constitution
V. VI.
Where Parent Act is ultra vires the Constitution Delegated legislation in conflict with the prescribed procedure of the Parent Act-
VII. VIII.
Malafide : Bad Faith Unreasonableness
IX.
Pragmatism
X.
Oppressiveness
I.
Where Parent Act is ultra vires the Constitution The Constitution prescribes the boundaries within which the legislature
can act. If the Parent Act or enabling Act is ultra vires the Constitution the rules and regulations made there under would also be null and void. The Parent Act is declared ultra vires the Constitution, if it violates : (i) Express Constitutional Limits; (ii) Implied Constitutional Limits; and (iii) Constitutional Rights. Express Constitutional Limits Invalidity of the rules and regulations arises if the Parent Act is violative of express limits prescribed by the Constitution. The legislative powers of the Union and the States are distributed in Article 246 of the Constitution. If either legislature encroaches upon the exclusive sphere of the other as demarcated in three Lists : (i) Union list; (ii) State list; and concurrent list, its legislation will be ultra vires. Implied Constitutional Limits Implied Constitutional limits are those which were enunciated in Delhi Laws Act case, 234 viz., laying down policy and enacting that policy into a binding rule of conduct. Legislature cannot delegate 234 AIR 1951 SC 332.
Page | 106
essential legislative function to any other agency and if it so delegates the Parent Act will be ultra vires the Constitution. In Delhi Laws Act case, the Supreme Court declared the later part of clause 2 bad because it conferred power on the administrative agency to repeal a law which, according to the Court, is an essential legislative power. III.
Similarly, in Hamdard Dawakhana v. Union of India, 235 the Court held Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement)
Act
ultra
vires the
Constitution
because
the
legislature had not laid down sufficient guidelines for the exercise of administrative discretion in selecting a disease to be included in the list. IV.
In St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education 236 the Supreme Court has laid down that delegated legislation is based on the assumption that legislature cannot possibly foresee every administrative difficulty that may arise in operation of statute. Delegated legislation is designed to fill those needs and is meant to supplement and not supplant the enabling statute.
Constitutional Rights No legislature has competence to pass a law violative of the provision of commerce clause, right to property under Article 300-A or right to life and personal liberty under Article 21. Moreover, there is another ground on which the validity of Parent Act may be challenged, although the statute is well within the legislative compliance, yet violates the provisions of Part III of the Constitution by imposing what may be called an unreasonable restriction on the enjoyment of fundamental rights. 237
235 AIR 1960 SC 554. 236 AIR 2003 SCW 8014. 237 For detailed discussion, see Jai Jai Ram Upadhyaya, Sociological Theory of Reasonableness, (1968) II SC J 99; Wharm, Alan, Judicial Control of Delegated Legislation: The Test of Reasonableness, 36 Mad L.R. 611 (1973). Page | 107
V.
In Chintaman Rao v. State of Madhya Pradesh 238 the Parent Act conferred power on the Deputy Commissioner to prohibit the manufacture of bidis in notified areas during the agricultural season as fixed by him. The Deputy Commissioner imposed a total ban on the manufacture of bidis. The order passed by the Deputy Commissioner was held ultra vires inasmuch as the Act under which it was made violated the fundamental right to carry on trade, business, profession and occupation guaranteed under Article 19 (1) (g) of the Constitution of India. In the opinion of the Court the order imposed unreasonable restriction on the exercise of fundamental right.
II.
Where delegated legislation is ultra vires the Constitution(i) General
-
Sometimes it may happen that the Parent Act may not be ultra vires the Constitution and delegated legislation may be consistent with the Parent Act, yet the delegated legislation may be held invalid on the ground that it is ultra vires the Constitution. It is precisely this point which the Supreme Court was called upon to consider in Narendra Kumar v. Union of lndia239 In this case the Supreme Court held that even if the Parent Act is Constitutional, the validity of delegated legislation can still be challenged on the ground that the law cannot be presumed to authorise anything which may be in contravention of the Constitution.
-
In Dwarka Prasad v. State of Uttar Pradesh, 240 the U.P. Control Order was made under the Essential Supplies (Temporary Powers) Act, 1946. Although the Parent Act was Constitutional, yet clause 3 (2) (b) of the Order was held ultra vires by the Supreme Court as it violated Article 19 (1) (g) of the Constitution of India by imposing unreasonable restriction on the right to carry on trade and business. Clause 3 (1) of
238 239 240
AIR 1951 SC 118. [1960] 2 SCR 627 1993 Supp 3 SCC 141
Page | 108
the Order provided that no one can carry on business in Coal except under a licence. Clause 3 (2) (b) further laid down that the State Coal Controller can exempt any person from the licence requirement. The Court held that clause 3 (2) (b) was ultra vires Articles 19 (1) (g) as it confers arbitrary powers on the executive in granting exemptions.
(ii) Arbitrary power is ultra vires the Constitution-
In Himmat v. Commissioner of Police,241 Section 33 (1) of-the Bombay Police Act, 1951 had authorised the Commissioner of Police to make rules for regulation of conduct and behaviour of Assemblies and Processions on or along the streets. Rule 7 made thereunder provided that no public meeting will be held without previous permission of the .Commissioner. The rule was held ultra vires on the ground that it conferred arbitrary powers on the Commissioner in granting or refusing permission and as such it imposed unreasonable restriction on the exercise of freedom of speech and expression guaranteed under Article 19 (1) (b) of the Constitution.
-
In K. Panduranga v. State of Andhra Pradesh,242 the Court quashed Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order, 1978 which made it compulsory for hoteliers to sell all the seven eatable items mentioned in the schedule. The Court ruled that any order compelling a person to carry on business against his will was violative of Article 19 (1) (g) of the Constitution.
-
In Labh Chandra v. State of Bihar,243 the impugned rule had restricted the voting rights for the management of Jain temples to persons who are of 21 years, who had donated not less than Rs. 50Q/to the temple and who were residing within the State for the last 1C years. The Patna High Court held the rule to be discriminatory and ultra vires Article 14 of the Constitution.
241 AIR 1973 SC 87. 242 AIR 1985 AP 208. 243 A.I.R. 1975 Pat. 206.
Page | 109
Theory of Derivative Immunity
-
Where the Parent Act cannot be challenged before the Court because it is protected' under Article 31-B of the Constitution on account of its placement in the Ninth Schedule, the question is whether the delegated legislation made there under can be challenged. In Vasanlal Maganbhai v. State of Bombay244 and Latafat AH Khan v. State of Uttar Pradesh245 it was held that if the Parent Act is saved under Article 31-B and cannot be challenged, the delegated legislation also cannot be challenged as being violative of any Fundamental Rights on the ground of derivative protection.
-
However, this theory of derivative immunity was not reiterated in Prag Ice and Oil Mills v. Union of India.246 In this case the constitutional validity of the Mustard Oil (Price Control) Order, 1977 was challenged. The Parent Act (Essential Commodities Act, 1955) was placed in the Ninth Schedule and, therefore, was protected under Article 31 -B. The question before the Supreme Court was whether the orders and notification (child legislation) issued under the Essential Commodities Act, 1955 can still be challenged as violative of Fundamental Rights. The Supreme Court answered the said question in the affirmative. The Court held that even in a case where a Parent Act cannot be challenged before the Court because of protection of Article 31-B of the Constitution on account of its placement in the Ninth Schedule, the delegated legislation promulgated there under can still be challenged if it violates any provision of the Constitution. In this way child legislation does not come under the protective umbrella of the Ninth Schedule.
III.
Where delegated legislation is ultra vires the Parent ActDelegated legislation can be challenged on the ground that it is ultra
244 AIR 1961 SC 4. 245 AIR 1973 SC 2070. 246 AIR 1978 SC 1296.
Page | 110
vires the Parent Act or enabling statute or any general law. 247 It is an accepted principle that the authority of delegated legislation must be exercised within the authority. The delegate cannot make a rule which is not authorised by the Parent Stature or delegating statute. Delegated legislation or subordinate legislation can be declared valid only if it conforms exactly to the power conferred. Rule is always open to challenge on the ground that it is unauthorised. The validity of delegated legislation is a matter if vires, that is, whether or not the power has been exceeded or otherwise wrongfully exercised or is inconsistent with the Parent Act. 248
-
In Additional District Magistrate (Rev.) v. Sri Pam249 the Supreme Court held that the conferment of rule-making power by an Act does not enable the rule- making authority to make a rule which travels beyond the scope of the enabling Act. In this case Delhi Land Revenue Act and Delhi Reforms Act did not empower rule-making authority to classify land or to exclude any area from preparation of record of right and annual register. However, rules made under Act in 1962 classified land into six categories and provided that the name of tenure holder or sub-tenure
holder
occupying
land
in
‘extended
abadi’
and
in
prescribed six categories of land will not be reflected in the record of right and annual register. The Court held that the rules are ultra virus the parent/enabling Act.
-
In Kunj Behari Lai Butel v. State of H.P.250 the Apex Court held that the administrative authority (in this case state) cannot bring within the net of the rules what has been excluded by Act itself. In this case H.P. Ceiling on Land Holdings Act, 1972 had delegated to the State Government the power to make rules for the purpose for carrying out the purposes of this Act.” The Act by Section 5 trade exempted “The
247 Wade, Administrative Law, 1988, p. 863; Halsbury’s Laws of England, 4th Edn. Vol. I, para 21; Garner, Administrative Law, 1985, pp. 66-67. 248 Asstt. Collector of Central Excise v. Ramakrishna, AIR 1989 SC 1829; District Collectoi Chittor v. Chittor District Ground Nut Traders Association, AIR 1989 SC 689 ; Supreme Court Employees’ Welfare Association v. Union of India, AIR 1990 SC 334. 249 (2000) 5 SCC 452. 250 (2000) 3 SCC 40. Page | 111
Estates and land subservient thereto” from the operation of the Act. However, rules framed by the State Government had put embargo on the transfer of land subservient to estates. Accordingly, the rules were held ultra vires the Parent Act being inconsistent and repugnant to it.
IV.
Delegated Legislation in excess of the power conferred by the Parent Act. If the subordinate authority keeps within the powers delegated, the
delegated legislation is upheld valid; but if it does not, the Court will certainly quash it. 251 -
In Dwarka Nath v. Municipal Corporation,252 Prevention of Food Adulteration Act, 1954 empowered the Central Government under section 23 (1) to make rules for restricting the packing and labelling of any article of food with the end in view to preventing the public from being deceived or misled as to quantity and quality of the article. Rule 32 made thereunder by the government stated that there shall be specified
on
every
label
name
and
business
address
of
the
manufacturer, batch number or code number either in Hindi or English. Proceedings started against Mohan Ghee Company for violation of Rule 32 as on Ghee tins only “Mohan Ghee L aboratories, Delhi-5” was written. It was pleaded on behalf of Mohan Ghee Company that the requirement of address under Rule 32 is in excess of the power of the Parent Act which is restricted to “quantity and quality” only. Accepting the contention, the Su preme Court held Rule 32 as ultra vires of the Act as it was beyond the power conferred on the government. -
In Chandra Bali v. R.,253 certain rules framed under the Northern Indian Ferries Act were challenged. The Act authorised the making of rules for the purpose of maintaining order ensuring safety of
251 Vasin v. Town Area Committee, AIR 1952 SC 115, Tahir Hussain v. District Board Muzaffarnagar, AIR 1954 SC 630; Ganapati Singh v. State of Ajmer, AIR 1955 SC 188. 252 AIR 1971 SC 1844. 253 AIR 1952 All. 795. Page | 112
passengers and property. However, the delegate made rules forbidding the establishment of private ferries within the distance of two miles from the boundaries of another ferry. The Court held the rules ultra vires as they were outside the - scope of delegated power.
In the same manner, in Mohd. Yasin v. Town Area Committee,254 the Parent Act had authorised the municipality to charge fee only for the use and occupation of some property of Committee, but the Town Area Committee
made
some
bye-laws
imposing
levy
on
whole
sellers
irrespective of any use or occupation of property by them. The Supreme Court held that the bye-laws were beyond the powers conferred on the Committee and were as such ultra vires. Similarly, in Ibrahim v. Regional
Transport
Authority, 255
under
the
Parent
Act,
the
administrative authority was empowered to frame rules for the control of transport vehicles. But the authority made rules for fixing sites for the bus stand. The Court held the rules ultra vires being in excess of power conferred by the delegating statute. -
In Ajoy Kumar Banerjee v. Union of India 256 under section 16 (2) of the General Insurance Business (Nationalisation) Act, 1972, the government was authorised to make rules for the reorganization of the General insurance whereas the rules so framed provided to fix salary patterns of employees. Declaring the rules ultra vires the Parent Act, the Supreme Court held them invalid. Delegated legislation may be struck down if the Courts find the
same to be against some specific statutory provision or against the general tenor or underlying purpose of the delegating statute. In Sales Tax Officer v. Abraham,257 rule-making power was conferred on the government for carrying out the purpose of the Act whereas the rules were made prescribing the last date for filing declaration forms by dealers in order to get the benefit of concessional rates on inter-State sales. The 254 255 256 257
AIR AIR AIR AIR
1952 SC 115. 1953 SC 79. 1984 SC 1130. 1967 SC 1823.
Page | 113
Court quashed the rules as it found that the statute authorised to make rules only for prescribing what particulars were to be mentioned in the forms and not for prescribing time limit for filing the forms. The Court declared the rules ultra vires the law-making power conferred and quashed them. -
In General Officer Commanding-in-Chief v. Subhash Chandra Yadav,258 the Central Government framed rules in the exercise of powers conferred on it under the Cantonment Act, 1924. Section 280 (2) (C) of the enabling Act empowered the Central Government to make rules providing “the tenure of office, salaries and allowances, provident funds, pensions, gratuities, leave of absence and other conditions of service of the servants of Boards.” In pursuance of the power, the Central Government Promulgated Cantonment Funds Servant Rules, 1937. Rule 5-C was inserted in 1972 providing for transfer of servants from one Cantonment Board to another Board. The Supreme Court held that the rule was ultra vires the Act and therefore void as the Central Government was not given such power.
-
In Major Radha Krishan v. Union of India and others 259 the Supreme Court has held that an administrative action taken in exercise of powers under a rule cannot override the provisions of a statute under which the rule was made. In this case an administrative action which was barred under the provision of the statute was taken under a rule made there under getting over the statutory provision. The Court held the action to be null and void.
-
In a pace-setting judgment the Apex Court in V. Sundeer v. Bar Council of India 260 held that the Bar Council of India Training Rules, 1995 was ultra vires of the parent (enabling Act. Section 49 of the Advocates Act, 1961 as amended in 1973 provided that it shall have power to make rules for discharging its functions under the Act. The
258 AIR 1988 SC 876. 259 1965 SCR (1) 213 260 AIR1999 SC 1167
Page | 114
rules framed for pre-enrolment training and Bar Examination, in fact, did not relate to any of its functions as provided under the Act. The Apex Court quashed the rules and held that rules framed under Section 49(1) of the Act must have a statutory peg on which to hang them. There is no statutory peg and therefore the rule will become stillborn. Therefore, unless the Parliament makes provision for preenvelopment training and examination, the Bar Council of India cannot do it by rule-making power.
In Mohini Jain v. State of Karnataka261 has held that rules framed by
-
the Government under the Educational Institutions (Prohibition of Capitation Fees) Act, 1984 are in violation of the purpose and object of the Act, hence, void. In this case the statute had prohibited capitation fees whereas the rules made there under prescribed a fee which could be charged by private medical colleges and which was not the tuition fee but capitation fee. The rules prescribed a fee of Rs. 2000 for merit students and Rs. 25,000 and 60,000 for non-merit students for Karnataka and non-Karnataka students respectively.
Liberal attitude of the Court
However, liberal judicial attitude towards delegated legislation is typified by the Supreme Court pronouncement in certain cases. In Tata Iron & Steel Co. v. Workmen262 Section s of the Coal Mines Provident Fund and Bonus Scheme Act, 1948 authorised the Central Government to frame Bonus Scheme for Employees. In exercise of the power, the Central Government established a quasi-judicial tribunal to decide certain disputes. It was contended that such a tribunal could only be created by the Legislature and not by an executive fiat. Rejecting the contention, the Supreme Court observed that it was a matter of detail “which is subsidiary or ancilla ry to the main purpose of legislative measure for implementing the scheme”. 263
261 (1996) 3 SCC 507. 262 AIR 1973 SC 1401 263 Ibid
Page | 115
-
Similarly, in State of T.N. v. Hind Stone,264 Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957 authorised the State Government to frame rules for regulating the grant of mining leases. Rule 8-C promulgated by the State Government banned leases for quarrying black granite in favour of private persons. Thus, by delegated legislation private enterprise was abolished in quarrying black granite. It was contended that rule was ultra vires the Parent Act and was, therefore, invalid. Rejecting contention, the Supreme Court observed : “we have no doubt that the prohibiting of leases in certain cases is a part of regulation contemplated by section 15 of the Act.” In this way, the legislature and its delegates are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act.
- The question whether a particular piece of delegated legislation is in excess of the power of subordinate legislation coferred on the delegate has to be determined with reference to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. So long as the rules have a rational nexus with the object and purpose of the statute, it is not within the domain of the Court to determine whether a purpose of a statute can be served better by adopting a policy different from that what has been laid down by the legislature or its delegate. 265 V.
Delegated legislation in conflict with the Parent Act-
The validity of delegated legislation can be challenged on the ground that it is in conflict with any provision of the Parent Act. Thus, in D.T.U. v. Hajelay266 under section 95 of the Delhi Corporation Act, 1957, it was provided that no employee can be dismissed by any authority subordinate to the appointing authority i.e. the General Manager. He delegated that power by making a rule
264 AIR 1981 SC 711. 265 Maharashtra Board of S. H. S. E. v. Paritosh, AIR 1984 SC 1543. 266 AIR 1972 SC 2452.
Page | 116
to the Assistant Manager. It was held that such a rule was in conflict with the Parent Act and therefore it was invalid. -
Similarly in State of Karnataka v. Ganesh Kamathr267, under section 7 of the Motor Vehicles Act, 1939, it was provided that a person who passes a test in driving a heavy motor vehicle is to be deemed to have passed the test in driving any medium motor vehicle also. Rule 5 (2) made under the Act provided that though a person has passed the test for driving heavy motor vehicle, he cannot obtain a licence unless he has already possessed a licence and has two years experience for driving medium motor vehicle. He cannot obtain such a licence unless he has previously passed the test in driving medium motor vehicle. This rule was found to be in direct conflict with section 7 of the Parent Act. The Supreme Court held that the rule travelled beyond the scope of statutory authority and therefore it was inconsistent with the enabling Act. The question, however, is as to when a bye-law or any other
delegated legislation can be said to be inconsistent with or repugnant to the Parent Act or any general law and Therefore, bad. In White v. Morley,268 Channel, L.J. observed, “A bye-law. ... is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful.”269 Similarly, Krishna Iyer, J.270 says, “a law has to be adjudged for its Constitutionality by the generality of cases it covers, not by the frecks and exceptions, it martyrs.” “The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity,
267 268 269 270
AIR 1983 SC 550, 1983 (2) SCC 402; (1899) 1 Q.B34. Ibid, at p. 39. Joshi v. Anant Mills, AIR 1977 SC 2279.
Page | 117
in the sense of being wholly beyond the scope of regulation-making power or its being inconsistent with any of the provisions of the Parent enactment or in violation of any of the limitations imposed by the Constitution." 271 In Supreme Court Employees. Welfare Association v. Union of
-
India,272 the Supreme Court has held that “the validity of the subordinate legislation can be challenged on such grounds as any other legislative acts can be challenged." 273 After referring to a number of leading cases, the Court concluded, “Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the Court has to consider the nature objects and the scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law.” 274 VI. Delegated legislation in conflict with the prescribed procedure of the Parent ActSometimes it happens that the Parent Act lays down procedure which must be followed by the administrative body while exercising law-making power under it. If the procedure is not followed, the delegated legislation may be declared bad. In Banwari Lai Agarwalia v. State of Bihar275 under section 12 of the Mines Act, 1952, the Central Government was required to consult the Mining Board constituted under the Act before framing rules. The Central Government made rules without consulting the Mining Board. - The Supreme Court held that the rules so framed in violation of the statutory provision were invalid being ultra vires the procedure established by the Parent Act. -
In considering the question of validity of delegated legislation on the ground of procedure, the Court looks to the intent rather than the
271 272 273 274 275
Maharashtra Board of S. H. S. E. v. Paritosh, AIR 1984 SC 1543. AIR 1990 SC 334. AIR 1990 SC 334. Ibid. AIR 1970 Pat 377
Page | 118
form of law. In Raza Buland Sugar Co. v. Rampur Municipality,276 it was proviaed under the Municipalities Act, 1916 that the rule in draft form must be published in local Hindi daily. However, the draft rules were published in an Urdu daily. It was contended that the draft rules were invalid on account of violation of the mandatory procedure clause. Rejecting the contention, the Supreme Court held that what was material was the publication and not the Hindi daily. AIR 1989 SC 989.
Delegated legislation is bad on ground of procedure where it is in excess or in contravention of delegated powers. In District Collector, Chittorv. Chittor District Ground Nut Traders Association, 277 while exercising powers under Section 3 of the Essential Commodities Act, 1955, the Central Government authorised the State Government by issuing notification to make orders to provide for the matters mentioned in the said notification. Under clause 2 of the notification it was required that while making the order pertaining to any matters specified in certain clauses including clause (f) of sub-section (2) of section 3 of the Act, the State Government shall obtain prior concurrence of the Central Government. The State Government issued a circular placing restriction on the movement of oil, oil seeds, etc. without obtaining prior concurrence of the Central Government. Holding the order ultra vires, the Supreme Court observed, “A delegate is not entitled to exercise powers in excess or in contravention of the delegated powers. If any order is issued or framed in excess of the powers delegated to the authorities, such order would be illegal and void.” VII.
Malafide : Bad Faith1. England. — Delegated legislation may be challenged on the ground of mala fides or improper motives of the rule-making authority. 278 Whenever legislature confers any legislative power on any administrative authority, the said power must be exercised in good faith by the latter and on proof of bad faith the Court can hold the exercise of power ultra vires.
276 AIR 1965 SC 895. 277 AIR 1961 SC 849. 278 Me Eldowney v. Forde, 1969 1 All E.R. 1039.
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-
In R. v. Comptroller-General of Patents,279 Clauson, J. said : “If on reading the order in Council making the regulation, it seems in fact
that it did not appear to his Majesty to be necessary or expedient for the relevant purposes to make the regulation, I agree that on the face of the order, it would be inoperative.” 280 -
Similarly, from the observations of Lord Russel, C. J. in Kruse v. Johnson,281 it becomes clear that if a bye-law discloses bad faith, it may be held ultra vires.
2. India. — In Narendra Kumar v. Union of India, 282 while deciding the validity of Non- Ferrous Metal Control Order, 1958, the Supreme Court observed, mala fides have not been suggested and we are proceeding on the “
assumption that the Central Government was honestly of the opinion ”283 from these observations it may be inferred that courts may consider the mala fide exercise of power by the statutory authority.
-
In Nagraj v. State of A. P.,284 the Andhra Pradesh Government issued an ordinance reducing the age of superannuation of all Government Employees from 58/years to 55 years. The ordinance was challenged, inter alia, on the ground that it was mala fide exercise of power. Negativing the contention, the Supreme Court held that the ordinance making power was a legislative power and the argument of mala tides was misconceived. It may be submitted that not only a delegated legislation but a statute
passed by competent legislature and even a Constitutional Amendment can be challenged as being mala fide. The point is concluded in the leading case of A.K. Roy v. Union of India. 285 It may, however, be observed that
279 (1941) 2 KB 306. 280 Ibid, at p. 316. 281 (1898) 2 QB 91. 282 AIR 1960 SC 430. 283 Ibid, at p. 433. 284 AIR 1985 SC 551. 285 AIR 1982 SC 710.
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“allegations about mala fides are more easily made than made out.”286 If, however, made out, the delegated legislation may be declared ultra vires.287 VIII.
Unreasonableness (a) England. — The principle in England is that the bye-laws made by
Municipal Corporations are ultra vires on the ground of unreasonableness. This rule is based on the presumption that the legislation never intended to give power to make unreasonable rules and they are therefore ultra vires. As de Smith288 observes, “there is no reason or principle why a manifestly statutory instrument should not be held to be ultra vires on that ground alone .. ” The leading case on unreasonableness of bye-laws is
Kruse v.
Johnson.289 In this case, the Parent Act conferred power on the County Council of Kent to make bye-laws. A bye-law was made “prohibiting any person from playing music or singing in any public place or highway within fifty yards of any dwelling house.” As it was unreasonable, the same was therefore held ultra vires. Deciding the case, Lord Russel, C. J., propounded the test of unreasonableness of delegated legislation as : “If, for instance, they (bye-laws) were found to be partial and unequal in their operation as between different classes, if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, “Parliament never intended to give authority to make such rules, they are unreasonable and ultra vires, In this way, the elements of unreasonableness are : ”
(a)
Partial or unequal operation between different classes.
(b)
Manifestly unjust.
286 Mittal v. Union of India, AIR 1983 SC 1. 287 Dr. V. N. Shukla, Judicial Control of Delegated Legislation, JILI 1959 p. 259. 288 Judicial Review of Administrative Action, (1984), pp. 354-55; Wade, Administrative Law, (1988), p. 354; Garner, Administrative Law, 1985, p. 72. 289 (1898), 2. QB 91. Page | 121
(c) (d)
Bad faith. Oppressive interference with the rights of people that no justification can be found in the minds of reasonable men.
-
Illustration - Arlidge v. Islington Corporation.290 In this case, a corporation made a bye-law requiring the landlord of a lodging house to cause the premises to be cleansed once a year. In case of breach of the said bye-law, penalty was also imposed. The Court held such byelaw ultra vires as being unreasonable, because the premises might have been leased by the land-lord and he might be unable to carry out the work without committing trespass. U.S.A. — In U.S.A. delegated legislation can be challenged as
unreasonable under the due process clause of the Constitution. Schwartz 291 states, “The validity of regulation can be sustained only if it is reasonably related to the purposes of enabling legislation.” Even a rule that deals with the subject matter within agency’s delegated authority may be invalid if it is arbitrary or unreasonable. “Not only must a regulation, in order to be valid, be consistent with the statute, but it must be reasonable also.” 292
India. — The principle is same as accepted in India. In Dwarka Prasad v. State of U.P.,293 the validity of clause 4 (3) of the U.P. Coal Control Order was challenged. Under this clause, the licensing authority was given power to grant, refuse to grant, renew or refuse to renew a licence and to suspend, cancel, revoke or modify any licence granted by him under the order for reasons to be recorded.
-
Holding the provision as arbitrary and unreasonable, the Court observed that “the licensing authority has been given absolute power” in the granting, cancelling etc. of licence. “ No rules have been framed and no directions given on these matters to regulate or guide the
290 (1909) 2 KB 127. 291 Administrative Law, 1984, p. 154. 292 Mourning Family Prod. Services, (1973) 411 US 356; Manhattan Gen. Equipment Company v. Commissioner, (1936) 297 US 129; F.C.C. v. American Broad Casting Co., (1954) 347 US 284. 293 AIR 1954 SC 224. Page | 122
discretion” of the licensing authority. It was argued that a sufficient safeguard was provided against any abuse of power by reason of the fact that the licensing authority was required to give reasons. -
Rejecting this argument, the Court observed, "This safeguard, in our opinion, is hardly effective, for there is no higher authority prescribed in the order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer. The reasons, therefore, which are required to be recorded are only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person”. 294
The ruling in S. B. Yadava v. State of Haryana295 comes very close to the proposition that unreasonable rules are ultra vires. In this case retrospective operation of service rules was not permitted on the ground that law-making power was not properly exercised inasmuch as the respectively reached as long as seven years and the rules changed with every change in the government as if they are ‘play -thing’ in the hands of the government. (i) Basis In India, the doctrine of unreasonableness of delegated legislation has been based on a firm ground, viz., Article 14 of the Constitution. 296 According to the interpretation of Supreme Court, Article 14 which guarantees equality before law can now be used to invalidate any law and action which is arbitrary or unreasonable. In a number of cases the Supreme Court has established that Article 14 contains the principle of reasonableness. 297 It has been held that “the concept
of
reasonableness
and
non-arbitrariness
pervades
the
entire
constitutional scheme and is a golden thread which runs through the whole of fabric of the Constitution. Accordingly, “every state action whether it be the legislature or of the executive or of “an authority under Article 12” shall be struck down by the court if it does not comply with requirement of 294 295 296 297
AIR 1954 SC 224 (227). AIR 1981 SC 561. See M. P. Jain, Administrative Law, XVII ASIL (1981) 468. E. P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, 38.
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reasonableness.” 298 Thus in Council of Legal Aid and Advice v. Bar Council of India299 it was held that the rule framed by the Bar Council of India which debars the persons of being enrolled as advocate who have reached the age of 45 years is arbitrary and therefore unreasonable. On this ground the Court struck down the rule. However, a similar rule was not struck down in Haniraj L. Chulani (Dr.) v. Bar Council of Maharashtra and Goa.300 In this Case Rule 1 of Maharashtra and Goa Council Rules did not allow persons already engaged in any other profession, such as in medical profession to be enrolled as Advocate. The validity of such provision was challenged on ground of excessive delegation. The Supreme Court held that the impugned provision was not vitiated on ground of excessive delegation as it effectuates the object, purpose and scheme of the Act, which lays down a complete code and provides enough guidelines. Hence it falls within the rulemaking power of the State Bar Council. -
In State of A.P. v. Mcdowell and Co. 301 the Supreme Court clarified that mere allegation of arbitrariness by itself is not sufficient ground for striking down an enactment on the basis of Article 14, some constitutional infirmity has to be shown for striking down a legislation. Discrimination is a recognised ground of violation of Article 14 and an Act which is shown to be discriminatory can be said to be arbitrary. A legislation which is arbitrary is unreasonable.
-
In Air India v. Nargesh Meerza,302 the validity of the service regulation framed by Air India providing for the termination of services of an Airhostess on her first pregnancy was challenged. The Supreme Court held the regulation to be extremely arbitrary, unreasonable, abhorrent to the notions of a civilized society and interfering with the ordinary course of human nature. It is “not a disability but one of the natural consequences of marriage and immutable characteristic of
298 299 300 301 302
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722, 741. (1995) 1 SCC 232. (1996) 3 SCC 342 (1996) 3 SCC 709. AIR 1981 SC 1829.
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married life.”303 Similar is the decision in the case of State of Maharashtra v. Chandr. bhan304 in which the validity of Rule 151 (1) (ii) (b) of the Bombay Civil Services Rules, 1939 providing Re. 1 as subsistence allowance after conviction of a government employee even if his appeal is pending was in question. The Supreme Court held it to be “unreasonable and void”. It also ‘stultifies the right of appeal and is unfair and unconstitutional”. In course of his judgment, Chinnappa Reddy observed : “The award of subsistence allowance at the rate of Re 1/- per month can only be characterised as ludicrous.”305 In State of Maharashtra v. Raj Kumar,306 a rule framed by the
-
Government of Maharashtra provided for giving weightage to a candidate who has passed S.S.C. from rural area in government service. The
Supreme
Court
quashed
the
rule
on
the
ground
of
unreasonableness because in the opinion of the Court this had no relevance with the object of the Selection of Candidates having aptitude to work in the rural area. Again, in Central Inland Water Transport Corporation v. Brojo Nath Ganguly307, the rule which provided for termination of services of permanent employee before the age of superannuation was held to be unreasonable, opposed to public policy and Henry VIII Clause. IX.
Pragmatism Judicial approach is not a pedantic and idealistic but a pragmatic
approach
which
must
determine
the
standard
of
reasonableness.
A
responsible administrative authority entrusted with the power of delegated legislation must ordinarily be presumed to know what is necessary,
303 304 305 306 307
A. A. A. A. A.
I. R. 1981 SC 1829. I. B. 1983 SC 803. I. R. 1983 SC 803. I. R. 1982 SC 1301. I. R. 1986 SC 1571.
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reasonable, just and fair. The validity of rules has to be adjudged by the generalities of the cases they cover and not by the stray instances of errors and irregularities discovered. - Therefore, the test of reasonableness should be applied in the context of life’s realities. Such were the observations made by the Supreme Court in Maharashtra State Board of S. H. S. E. v. Paritosh,308 where rule 104 provided : “No candidate shall claim, or be entitled to revaluation of his answers or disclosure or inspection of the answer books or other documents as they were treated as most confidential”. This rule was challenged but the Supreme Court held it valid. Similarly, in Narain Iyer v. Union of India, 309 the Supreme Court washed off its hands from the task of scrutinising the reasonableness of the telephone rates fixed by the government. X.
Oppressiveness Where a rule is manifestly unjust, caparicious, inequitable or partial in
operation it can be invalidated on the ground of unreasonableness. In Indravadan v. State of Gujarat,310 Rule 6 (4) (i) read with 6 (4) (iii) {c) provided that a Civil Judge (Senior Division) after completing 48 years of age will not be eligible for consideration for promotion to the post of Assistant Judge. The Supreme Court held the said provision as arbitrary and unreasonable. Again, in Meenakshi v. University of Delhi,311, for the purpose of getting admission to Medical College in Delhi, a condition of schooling for last two years in any school in Delhi was prescribed. The Supreme Court held this requirement to be arbitrary and unreasonable. - The Supreme Court
propounded :
“Rules are intended to be
reasonable, and should take into account the variety of circumstances in which those whom the rules seek to govern bind themselves. We are of 308 309 310 311
the
opinion
that
the
condition
in
the
prescription
of
the
A. I. R. 1984 SC 1543. A. I. R. 1976 SC 19&6. A. I. R. 1986 SC 1035. A.I.R. 1989 SC 1568.
Page | 126
qualifications for admission to Medical College in Delhi should be construed as not applicable to students who have to leave India with their Parents on the Parent being posted to a Foreign Country by the Government. 312
Ultra vires act : Effect
If an action is declared ultra vires, it is null and void and of no legal effect whatsoever. It has no legal leg to stand on. 313 Once it is declared by the Court that some administrative act is legally a nullity, the situation is as if nothing has happened. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. 314
Concluding Remarks -
Generally speaking, any ground on which judicial review maybe justified can logically be classified as a branch of ultra vires doctrine 315; here we have dealt with straight forward cases where ultra vires was the solitary or principal justification for judicial review.
-
On the whole, judicial review of delegated legislation is more of symbolic value rather than of much practical value as a control mechanism over delegated legislation. To make judicial control more efficacious it is necessary that delegating legislation does not confer power in two broad and generalized language. In such a case the Court may find extremely difficult to hold a rule as falling outside the scope of power delegated. This is what is envisaged by the doctrine of excessive delegation. In that case, delegated legislation will be ultra vires if it goes beyond basic policy underlying the Parent Act passed by
312 Ibid. 313 Wade, Administrative Law, 1988, p. 41. 314 Bar Council of India v. Surjeet Singh, A.I.R. 1980 SC 1612; Marathawad University v. Sheshrao, A.I.R. 1989 SC 1582. 315 Garner, Administrative Law, 125 (3rd Ed.); See also M.G. Pandke v. Municipal Council,-Hinganghat, A.I.R. 1993 SC 142. In this case the doctrine of occupied field has been propounded to determine the validity of delegated legislation. The Court has held that as the legislative field qua retirement age is already occupied by statutorily recognised code, Municipal Council could not make bye-laws contrary thereto for the purpose. Page | 127
the legislature.
III.
JUDICIAL REVIEW
Scope - The delegated legislation does not fall beyond the reach of the judicial review power of the Supreme Court and the High Courts. In fact it can be doubly reviewed. Firstly, to ensure the consistency with the provisions of the Constitution; and, secondly to enforce the compliance with the statutory policy objectives, purposes and limitations.
No rule, order, regulation or notification can contravene and violate any of the constitutional limitations. The rule making power must be "Subject to the provisions of the Constitution", and should be conferred on the Government under a valid law ”. What the Legislature cannot do, it cannot delegate to the Government; and consequently, the Government cannot do. If the Act under which delegated legislation is framed is ultra vires the power of the Legislature, the delegated legislation cannot at all be sustained. When the Act is unconstitutional, the rules cannot be saved. 316
The delegated legislation is void ab initio, if the statutory delegation in the particular case is constitutionally impermissible, and is void on the ground of the excessive delegation for being in violation of the rule against delegation of the essential legislative function, or for subverting the scheme, policy and intendment of the parent law. The raison d' etre for this ground of voidness of delegated legislation is that the rule that limits the competence of the Legislature, limits the competence of the administrative authority as well; and the former cannot delegate, if delegation implies giving away of the essential legislative function and results in the legislative abdication. Subject to the permitted wide limits of the delegation, and the established
316 HarakChandv. Unionof India, AIR 1970 SC 1453; Mohammad Faruk v State of Madhya Pradesh, AIR 1970 SC 93; Shamaraov. Union Territory of Pondicherry, AIR 1967SC 1480; Devi Das Copal Krishan v. State of Punjab AIR 197 SC 1985; Hamdard Dawakhana v. Unionof India, AIR 1960 SC 554; Raj Narain v. Patna Administration Committee, AIR 1954 SC 569. Page | 128
presumption of validity of the statute, the delegated legislation may be assailed on amongst other the following grounds, namely. (i)
That it is ultra vires the statute, or in opposition to the policy and purpose of the statute;
(ii) That, it is void for excessive delegation; (iii) That, it is irregularly framed, and that in framing it the prescribed mandatory conditions are not complied; and, (iv) That, it contravenes any of the constitutional limitations.
ULTRA VIRES RULE :
The rules, regulations and notifications should not be ultra vires the statutorily delegated authority as determined by the judicial interpretation of the relevant provisions of the given statute 317. Neither the scope of the rulemaking power can be extended by the rule-making authority, nor the rules framed after stretching the statutory limits be deemed intra vires the delegated authority. i.
They should be intra vires the objects, purposes and the policy of the enactment.
ii.
They should sub serve, or carry out the statutorily stated purposes.
iii.
They must not falsify the legislative intendment, and must not travel beyond the scope of the statute.
iv.
They must not be inconsistent with the provisions of the Act; should conform to the standards, follow the guidelines laid out by the Legislature, and should strictly carry out the policy of the statute.318
317 Daya v. Joint Chief Controller of Imports and Exports, AIR 1962 SC 1796; Hamdard Dawakhana v. Union of India, supra; Darshan Singh v. State of Punjab, AIR 1954 SC 83; Adarsh Industrial Corporation v. Marketing Committee, AIR 1962 Punjab 426; Venkatanarayna v. State of A.P., AIR 1960 A.P. 171. 318 Venkateswara v. Government ofA.P., AIR 1966 SC 629; D.S. Mills v. Union of India, AIR 1959 SC626; Sivarajanv. Unim of lndia, AIR 1959SC556; Shahabuddin Khanv. Page | 129
v.
They must not transgress the area carved out by the statute, and should not violate its scope and purpose.
vi.
They must provide what the Legislature is required to prescribe; and the rule-making authority should make no serious substantial omission. 319
vii.
No rule should make a provision inconsistent with, or in conflict with
the
statute. 320
Any
conflict
whether
perceptible
or
imperceptible must make a rule void for being ultra vires the statute.321 If the rule is consistent, and not in conflict with the parent Act, but is inconsistent with a law already in force, it is not void.322 viii.
When challenged on the ground of the substantive ultra vires, the court can examine their contents without, of course, looking into the policy and wisdom of their subject-matter, except indirectly, to ensure conformity with the legislative intendment.
ix.
It can see if the statutory instrument in its pith and substance falls within the scope of the delegated power, and within the import of the language and policy of the statute read as one piece. It does not strike a statutory instrument, merely because, it does not mention the particular section of the relevant particular statute if it is justified otherwise.
x.
The non-recital of the relevant section, and the fact that it has been made under the delegated authority does not make it invalid. 323
xi.
If the statutory source of the delegated power is shown to be established, the fact that the statutory instrument inaccurately
State of U.P., AIR1960 All. 373; Munsha Singh Dhaman Singh v. State of Punjab, AIR 1960 Punj. 217. 319 Chief Commissioner of Ajmer v. R.S. Ddni, AIR 1957 SC 304. 320 Manepalli Venkatanarayanav. State of A.P., AIR 1960 AP171;Ram Prasad v. State, AIR 1952 All. 843. 321 Mohammad Hussain v. State of A.P., AIR 1962 97, Adarsh Industrial Corporation v. Market Committee, AIR 1962 Punj. 526. 322 T.B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79. 323 Brajendra Kumar v. Union of India, AIR 1961 Cal. 317. Page | 130
purported to be made under any other provision does not render the delegated legislation inoperative. xii.
Any inaccuracy in the recital in the preamble to the statutory instrument should be ignored, if the competence of the Government or the administrative authority (delegate) is otherwise beyond doubt.324 It is rendered invalid only if it defeats the statutory policy; and reduces the legislative objects and purposes to ad absurdum, or otherwise nullifies their effect. 325
xiii.
The doctrine of severability applies as a practical rule of the judicial review of delegated legislation; and only such of the rules framed in a statutory instrument are deemed void as are shown to be ultra vires the statute. The whole statutory instrument is struck down, if the objectionable rules cannot be severed.
Subject to their basis of validity and given the competence of the rulemaking authority, the rules cannot be found inoperative. Any excessive exercise of discretion by the authority ex facie does not render them bad.
Coir Industry Act, 1953 - Under Section 26(1)
The Central Government can make rules for carrying out the purposes of the Act, subject to the condition of the previous publication. -
Sub-section (2) enumerates the matter in respect of which rules can be made in particulars without prejudice to the generality of the power conferred under Sub-section (1). Among other things rules can be made for registration of the manufacturers of coir products, and articulation of conditions of such registration and the grant and issue of licences, forms of application etc.
- The licensing rules framed under this Act provided that no
324 Afzal Ullah v. State of U.P., AIR 1964 SC 264; Balakotiah v. Union oflndia, AIR 1958 SC 232. 325 Raj Narain v. Patna Administration Committee (supra pp. 247,250-251). Page | 131
person could export coir fibre, yam or coir products without a licence, and a person who in any three preceding years exported not less than 55 tons of coir products (excluding coir ropes) would be entitled to a licence; and, if at all, he could be registered as an exporter "if during the period of twelve months immediately preceding the date of application, a minimum quantity of 25 tons of coir yam had been ranked in a factory owned by the applicant and registered under the Factories Act, 1948". -
It was held that the exercise of the rule-making power was not marked by excessive discretion on the part of the rule-making authority.
-
While attacking the rules it was contended that by prescribing a quantitative test instead of a qualitative test the rule-making authority ousted the small dealers in coir products from the export trade. This created a room for a wide discretion in matters of control and regulation of trade in coir export. It was also pointed out that the contents of the rules went contrary to the recommendations of an Ad Hoc Committee for External Marketing set up by the Coir Board.
- The Court observed that it was not a case of the exercise of excessive discretion by the rule-making authority when it was competent to make rules in the way it did. It could go against the recommendations of the Ad Hoc Committee, because, it was finally for this body to decide which test would meet the requirements of public interest, and which method would be the most expedient in controlling the industry in the national interest. 326
The court has no jurisdiction to question the wisdom of the rule making authority.
The
rules
cannot
be
attacked
on
the
general
plea
of
326 P.V. Sivarajan v. Union of India, AIR 1959 SC 556.
Page | 132
unreasonableness
like
the
bye-laws
framed
by
a
local
body.
The
reasonableness of the rules etc. can be examined only when it is necessary to do so for purposes of Articles 14 and 19 of the Constitution.
IV.
Procedural irregularities - The rule of procedural ultra vires too provides only limited articulated means of judicial control of delegated legislation. It is necessary that the rule-making authority should be exercised in the manner indicated by the Legislature. It is incumbent upon the rule making authority that while framing the rules it should follow the prescribed procedure. Any disregard of a mandatory provision renders
the
rules
nugatory.
Any
non-compliance
with
the
directions, if they are deemed mandatory; and non-existence of the conditions precedent to the rule-making must render a statutory instrument invalid.
- The question whether a statutory provision prescribes a mandatory rule, or is merely directory in character too is a question of law, requiring interpretation of the relevant statutory provisions and assessment
of
their
nature.,
scope,
purpose,
scheme
and
intention 327.
- The purpose for which the provision is made, the nature of the legislation, the legislative intention, the degree of inconvenience or injustice to persons resulting as the provision is read in one way or the other, the relation of the particular provision to other provisions dealing with the same subject, the language of the provision and other relevant considerations e.g. general practice, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory :
327 Sitapur Municipality v. Prayang Narain, AIR 1970 SC 58.
Page | 133
1. The Raza Buland Sugar Co. Case.328 — FACTS - The appellant Co. owned two sugar factories and a number of buildings in respect of which the respondent Municipal Board of Rampur levied a water tax. The company contended that the levy was illegal as the Board had not framed the proposals, and the rules in accordance with the mandatory procedural provisions laid down in the U.P. Municipalities Act, 1916.
ALLEGATIONS - It was alleged that the proposal and the draft rules were not published in the prescribed manner in a local paper published in Hindi as required statutorily, and instead they were published in a local Urdu daily. It was urged that the publication in a local paper published in Urdu was not in accordance with the mandatory provision that the publication "shall...be in a local paper published in Hindi"; and therefore, the tax was not levied according to law, no matter other conditions were complied with.
RESPONDENTS - The respondent contended that the provision in respect of the publication was directory in character, and had been substantively complied with. It was pointed out that there was no local paper regularly published in Hindi.
HELD - The Court held that the appellant's arguments could not be accepted; and ruled that what was mandatory was publication of the rules etc. The provision that the publication would be in a paper published in Hindi was only directory.
- The publication was intended to give previous publicity, and appearance of the proposal of, and rules in the Hindi version in a local Urdu paper was the substantial compliance with the statutory requirement. It fully met the condition of previous publicity; and satisfied the purpose of giving an opportunity to the residents for filing objections, and of being heard. Wanchoo J. in the course of his judgment said : 328 Raja Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895. See also Sitapur Municipality v. Prayag Narain, AIR 1970 SC 58. Page | 134
"The question whether a particular provision of a statute which on the face of it appears mandatory in as much as it uses the word "shall" — as in the present case —o r is merely directory cannot be resolved by laying down any general rule; and depends upon the facts of each case, and for that purpose the object of the statute in making the provision is the determining factor So
long
as
publication is made in substantial compliance with the manner provided therein it would serve the purpose of the mandatory part of the section which provides for publication."
-
The statutory recognition of the substantial compliance with the procedural conditions is often made by providing that after the delegated legislation is formally approved by the Government and published in the gazette it should be the "conclusive evidence" of procedural regularity in making of the rules and the bye-laws framed by the administrative authority, any directory procedural irregularity notwithstanding. 329 This shield is pierced, however, in case the statutory instruments is ultra vires the delegated authority; and the delegated legislation is "in complete lack of jurisdiction." 330 331
2. The Banwarilal's Case .332 — FACTS - The appellant assailed the validity of certain regulations framed by the respondent State under the Mines Act, 1952. The statutory authorisation required that before the regulation was made the draft shall be referred to every Mining Board which is in the opinion of the Central Government concerned with the subject dealt with by the regulation; and the regulation "shall not be published until such Board has had a reasonable opportunity of reporting as to the expediency of making the same and as to the suitability of its provision."
329 Berar Swedeshi Vanaspati v. Municipal Committee, Skcgaon, AIR 1962 SC 425; Beni Prasad v. Jabalpur Improvement Trust, AIR 1978 MP191. 330 Trust Mai Lachmi Sialkot Biradri v. Amritsar Improvement Trust, AIR 1963 SC 976. 331 Bamoari Lai v. State of Bihar, AIR 1961 SC 849. 332 Banwarilal Agarwalla vs The State of Bihar, 1961 AIR 849, 1962 SCR (1) 33 Page | 135
ALLEGATIONS - It was contended that the impugned regulation was made without such prior reference to any Mining Board.
RESPONDENT - The respondent State urged that the reference was not made, because, in fact, no such Board then existed. Nevertheless, it was contended that the regulation was invalid as the condition for reference to the Mining Board was mandatory.
HELD - The Court sustained the regulation, and held it valid. On the question whether a statutory provision was mandatory or directory in character Das Gupta J. observed as follows :
" ..........no general rule can be laid down for deciding whether any particular provision in a statute is mandatory meaning, thereby, that non- observance thereof involves the consequence of invalidity, or only directory, the non-observance of which does not entail the consequence of invalidity —B ut in each case the court has to decide the legislative intent to decide this we have to consider not only the actual words used, but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same."
-
Applying these tests it has been held that the provisions for consultation "with such other authority as it may deem desirable" before an authority made a general order in respect of placing of the bus stands was directory. 333 The condition of laying also seems to be directory.334
-
However,
the
conditions
of
obtaining
concurrence
of
the
Government, 335 and publication of statutory instruments are, on all hands, deemed mandatory in view of express statutory provisions
333 T.B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79. 334 Munrta Lai v. H.R. Scott, AIR 1955 Cal. 451. 335 Radha Krishna v. State, AIR 1952 Nag. 387.
Page | 136
in the General Clauses Act, 1897; and the Harla's Case
336 The
Court can investigate into the contention of non-satisfaction of conditions precedent to the making of a statutory instrument. If the instrument contains a recital that the conditions are satisfied the court will presume that the statutory condition was met, and the order was regularly made.
- The burden to prove that the conditions precedent are not satisfied falls on the person who asserts their non-satisfication. On the other hand, in the absence of such recital the rule-making authority should establish that they are in fact satisfied by making depositions in an affidavit or by other means :
3.
The Swadeshi Cotton Mills Case .337 —
FACTS - The appellant challenged the constitutionality of Section 3 of the U.P. Industrial Disputes Act, 1947; and also two general orders made there under for non-fulfillment of certain conditions precedent to their making. The statutory provision laid down that an order could be made, if in the opinion of the State Government it "is necessary, or expedient so to do for securing the public safety or convenience, or the maintenance of pubic order
or for maintaining employment".
ALLEGATIONS - It was alleged that the State Government had made the order which did not recite that the stated conditions existed. The non-recital would per se mean that the Government formed no opinion, and as such the condition precedent to the making of the orders was not fulfilled. Therefore, the making of the orders was not a valid exercise of the delegated authority.
RESPONDENT - In reply the Government at first filed no affidavit stating their position; but when asked by the Supreme Court deposed that the notifications containing the impugned orders "were issued
336 See also Raja Buland Sugar Co. v. Rampur Municipality (supra pp. 294-295.) 337 Swadeshi Cotton MiUs Ltd. v. State Industrial Tribunal, AIR 1961 SC 1381.
Page | 137
only after all aspects of the matter were fully considered by the State Government, and it had satisfied itself that it was necessary and expedient to issue the same for the purpose of securing, The Court accepted the affidavit.
HELD – It was held that the alleged condition precedent to the making of the orders was in fact satisfied. Answering the objection for the non recital, the Court held that the defect was not fatal to the validity of the orders. Wanchoo J. in the course of his Judgment of the Court declared the law as follows : "It is true that power may have to be exercised subject to certain conditions precedent, but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure which must be followed before a bill becomes a law where certain conditions precedent have to be satisfied before a subordinate authority can pass an order (be it executive, or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise, and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct."
- The subordinate legislation thus does not carry the same degree of immunity which is available with respect to a statute. It may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made.
-
It may further be questioned on the ground that it is contrary to some other statute. It can also be impugned on the ground of arbitrariness, if it is so arbitrary that it could not be said to be in conformity with the statute, or that it offends Article 14 of the Constitution. Nonetheless, all the grounds that may be urged Page | 138
ordinarily cannot be available against a statutory instrument e.g. notification.
-
It can be questioned on the ground that it does not conform to constitutional requirements, or that it offends some constitutional limitation provision. Yet it cannot be questioned in the manner of an administrative action on the ground of violation of principles of natural justice or reasonableness 338. When a quasi -legislative discretionary power is required to be exercised in the public interest, the Court may require the Government to exercise that power in a reasonable manner in accordance with the statute, and in
accord
with
the
spirit
of
the
appropriate
and
relevant
constitutional provision :
4. The Indian Express Newspapers Case : FACTS - The Central Government gave, by issuing a notification, dated 15 July, 1977, total exemption from import duty in respect of news print. Four years later this total exemption was cut short by another notification, dated 1 March, 1981; and a duty at the rate of 15% ad valorem was imposed on imported newsprint for the year 1981 — 1982. Soon thereafter, one other notification was issued in supersession of the earlier '81 notification on 28 February, 1982, and thereby, an auxiliary duty totalling Rs 825 per tonne of newsprint was additionally imposed. The levy of this auxiliary duty on newsprint was hiked further, already high price of newsprint. In consequence the price of newspaper went up and circulation came down.
ALLEGATIONS - The petitioner Express Newspapers and others moved the Supreme Court, by a petition challenging the notification on the ground of infringement of press freedom. The contention was that the administrative
action
notification
was
unconstitutional.
It
was
submitted that the enormous increase in the price of newsprint and 338 Indian Express (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 (542); Ram Chandra Kachardas Porwal v. State of Maharashtra, AIR 1981 SC 1127; Tulsipur Sugar Co. Ltd. v. Notified Area Commissioner, AIR 1980 SC 88. Page | 139
inflationary conditions raised production cost, and thereby, caused loss of capacity of the industry to absorb the increased duty levied under the successive notifications. The Government had not taken into consideration the capacity of the newspaper industry to bear the duty load, and therefore, the levy was unreasonable. It was urged that the duty was violative of the freedom to continue to run the industry under Article 19(l)(g)/(6), and in particular, Article 19(l)(a)/(2) of the constitution.
RESPONDENT - The respondent Government replied the petitioner's contentions; and submitted that the levy of duty was necessitated by the need for augmentation of revenues and in the public interest.
HELD - The Constitution Bench of the Court declared that the impugned notifications were administrative law, even though all the grounds that might be urged against an administrative order could not be available against them. In all circumstances like one before it, the Court directed that the Government at all material times should be conscious of the fact that it is dealing with an activity protected by Article 19(l)(a) of the Constitution, which was vital to our democratic existence. The discretion under the statute [the Customs Act, 1962] was not unfettered; and could only be exercised under reasonable restrictions clause of Art. 19(2). The Government must not be guided by irrelevant considerations.
-
A statutory instrument cannot also be invalidated for its wisdom or lack of the legislative policy. But when that policy is expressed in language of law the same can be reviewed on ground of violation of any constitutional provision.
Void for unconstitutionality — There is no general power of judicial review of delegated legislation. The judicial review can be made on grounds on which it can be undertaken in respect of statutes, namely, (i) want of legislative competence ; due to violation of distribution of Page | 140
powers rule; (ii) contravention of a clause of the Bill of Rights; and, (iii)
Infringement of other constitutional limitations e.g. restrictions
in the interests of inter-State trade, commerce and intercourse. -
What the Legislature cannot do, it cannot authorise its delegate to do. It can delegate the legislative power only in respect of a matter which falls within its legislative competence. If an Act is ultra vires its power, the rules framed there under must also be deemed ultra vires without a separate review for them. But, if a law passes the test of constitutionality the statutory order or other subordinate legislation passed there under, should be reviewed. It is possible that the latter is unconstitutional. 339
- The rules, regulations, orders, notifications are laws covered by the definitional clause of Article 13(3) (a), and therefore, must be void, if they contravene any provision of Part III — the Fundamental Rights Chapter (the Bill of rights) 340. The fetters upon the legislative power must fetter the power of the rule-making. The condition of valid rule-making is non contravention of Clause (2) of Article 13. The guarantees of procedure established by law, and curtailment of freedoms
:
speech
and
expression,
assembly,
association,
movement, and trade and profession, except by laws saved under reasonable restrictions clauses of Article 19(2) - (6), and others are not any the less weak in respect of delegated legislation than in relation to the statutory law. - The rules, regulations, orders or notifications can be reviewed rigorously under the various clauses of the Bill of Rights in the same manner as in relation to any enacted law, nay, perhaps more vigorously The Indian Express Case [supra pp. 294, 297-298].
Other grounds of review — There is, however, no general power of judicial review of delegated legislation on grounds of reasonableness
339 Bennett Coleman Co. Ltd. v. Union of India, A.I.R. 1973 S.C. 106; Dwarka Parsad Laxminarain v. State of U.P., A.I.R. 1954 S.C. 224. 340 Indian F,xpress Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 (544); Narendra Kumar v. Union of India, A.I.R. 1960 S.C. 430; Hamam Singhv. Regional Trt Authority, A.I.R. 1954 S.C. 190; Dwarka Prasad Laxmi Narain v. State of U.P., A.I.R. 1954 S.C. 224 Page | 141
— substantive
or
procedural.
The
statutory
rules
cannot
be
invalidated on a plea of unreasonableness in the manner of the byelaws of a local authority :
The Mulchand's Case 341 —
5.
FACTS - In exercise of the rule-making power in respect of the prescription of the mode of appointing an arbitrator and procedure of arbitration proceedings under the Cooperative Societies Act, the Government of Bombay framed a rule providing, thereby, that no party would be represented by a legal practitioner. The petitioner who was a member of a cooperative bank, and had a dispute involving a large sum asked for a better representation through a lawyer. The request having been rejected by the arbitrator, he objected to the unreasonableness of the rule. The objection was held unsound. HELD - The Bombay High Court held that a provision for not to be heard at all might violate a substantial right, but the right to be represented through a lawyer was a matter of procedure. The denial of this latter right could not be objected to in the absence of a statutory right in this respect.
V.
SAVING CLAUSES :
The challenge at the second level on the ground of an improper exercise of the rule-making power is made relatively difficult, if not impossible by declaring that the rules when made have the effect "as if enacted in the Act." The effect of this attempt at immunity from judicial review of the rules declared to have such effect has occasionally been considered. The Incometax, Act, 1922, declared in Section 59(5) as under : "Rules framed under this section shall be published in the Official Gazette, and shall thereupon have the effect as if enacted in this Act." - The
Supreme
Court
construed
this
clause
in
the
Ravulu
Subbarao's Case342 343, following the Lockwood's decision344 of the 341 Mulchand v. Mukand, A.I.R. 1952 Bom. 296: See also K.J. Thomas v. Commissioner of Income- tax!, A.I.R. 1968 Ker. 6.
Page | 142
British House of Lords. It held that Rule 2 of the Income-tax Rules could not be attacked as being inconsistent with the provisions of the Act, or as being void for having been made in exercise of a power under excessive delegation.
- The challenge on ground of vires could not be made. It was said that the words "as if enacted in the Act" equated the rule with a statutory provision. It could be presumed that the Legislature ratified it, and it became part of the statute. On another occasion in the Karmithravi Tea Estates Case 206 the effect of Rule 24 of the Income-tax Rules was examined. The Rule prescribed that in the case of a tea company 60%, of its income would be deemed agricultural income, and, for that matter, excluded from the total income taxable under the Income-tax Act. The Court held that the proportion so prescribed should be taken to be prescribed by the Act for purposes of definition of agricultural income under Article 366(1) of the Constitution/Section 2(1) Income-tax Act, 1922. Notwithstanding this relative immunity the construction based on the Lockwoods decision cannot be stretched to its illogical limits. Indeed the authority of the English case is doubted, and the rigor of
343 Ravulu Subba Rao v. Commissioner of Income-tax, A.I.R. 1956 S.C. 604-An application for registration of a firm was rejected by the Income-tax Officer on the ground that it was not signed by all the partners themselves, as one of them had gone on a piligrimage and before leaving had authorised another partner to sign it on his behalf under a power of attorney; and the authorised partner had signed for himself and on behalf of the absentee partner. The order of rejection was based on R. 2 of the Income-tax Rules which required that the application should be signed by the partners personally. The Court held that the rule had to be complied with, and any inquiry into its vires was not possible. 344 Institute of Patent Agent v. Lockwoods, 1894 S.C. 347 — Under the Patents, Designs Trade Mark Act the Board of Trade was empowered to pass such general rules as it thought expedient for the purposes of the Act. Such rules were "subject......as hereinafter prescribed," to be of the same effect as if they were contained in the Act, and were required to be judicially noticed. The Board of Trade made certain rules for registration of patent agents which were, a required under the clause "subject as hereinafter prescribed to be laid before Parliament. The rules prescribed that all registered patent agents would pay an annual subscription, and prescribed a penalty for any one who called himself a patent agent but was not registered or had refused to pay the subscription and also for the removal of his name from the register. In an action for a declaration and injunction on the grounds that the rules were ultra vires the statute, the House of Lords held that the rules should be deemed to have been enacted in the Act. This precluded any inquiry into their vires." Page | 143
case in the "as if enacted" clause is already softened in the Yaffe ’s
England. In relation to a "scheme" declared to be something "as if enacted in this Act" the House of Lords observed that it was not - per se embodied in the Act. If found inconsistent with the statutory provision, it was void ab initio having been framed without authority. Closely following this weakening of the Lockwood's authority, it has now been held in this country that a rule declared to have the effect "as if enacted in the Act" is always open to the challenge on the ground that it is unauthorised. 345
- The clause does not preclude judicial review on other grounds. The rules protected by this clause cannot be attacked only on the ground of statutory excessive delegation. They can be challenged as being ultra vires the statute, and on such other grounds on which a legislation can generally be invalidated. It is given its fullest scope in Section 2(4) of the English Emergency Act, 1920. It is provided therein that the regulations framed under the Act should be taken to be free from the requirements of the Statutory Instruments Act, 1946. The provision is as follows :
' The regulations so made shall have effect as if enacted in this Act, but may be added to, altered, or removed by resolutions of both Houses of Parliament, or regulations made in like manner, and subject to the like provision : as the original regulations, and regulations made under this section shall not be deemed to be statutory rules" -
Often specific provisions are enacted prohibiting raising of any issue relating to the validity of the statutory rules and orders. This sort of prohibition can seldom be presumed, and can be justified only on the basis of a specifie statutory provision and the special and exceptional circumstances of an emergency legislation, or on the ground of state necessity. An illustration of such a saving clause was contained of the Defence of India Act, 1962:
"No order made in exercise of any power conferred by, or under
345 Stateof Kerala v. K.G. Abdin, AIR 1965SC It — rulel4A framed under the Madras General Sales Tax Act, 1939; Chief Commissioner v.R.S.Dani, A.I.R. 1957 S.C. 304. Page | 144
this Act shall be called in question in any court."
VI. -
STATUTORY RULES, IF BINDING
Delegated legislation is not executive instruction : and is 'law' passed on authority of the Legislature. It derives sanction from the legislative power vested in the Legislature. When framed properly, it is "law" for purposes of Article 13(2)/(3)(a), and Articles 302, 303 and 304 346. It binds the administration; and an administrative authority having framed the rules cannot refuse to follow them, or modify them for their application to any given case347.
-
Mandamus can be issued for enforcement, or their observance. The framing of the rules for prescribing the procedure for exercise of an executive power ousts the discretion to follow any ad hoc procedure; and the Government should not act, except in accordance with the procedure prescribed by such rules. For instance, if the rules prescribe the manner of a settlement of fisheries after auction by the Government conducted by the commissioner and on submission of a report by him containing his recommendation, the Government
cannot
dispense
with
the
auction
procedure
and
the
commissioner's recommendation, and settle a fishery by order. 348
346 Chinla Lingam v. Government of India, A.I.R. 1971 SC 474 (476); Ouruswami v. State of Mysore, A.I.R. 1954 S.C. 592. 347 Chinta Lingam v. Government of India, A.I.R. 1971 S.C. 474. v. State of Assam v. Keshab,(l953) S.C.R.865. 348 State of Assam v. Keshab, (1953) S.C.R. 865. Page | 145
CHAPTER – 9 CONCLUSION
Delegated or subordinate legislation means rules of law made under the authority of an Act of Parliament. Although law making is the function of legislature, it may, by a statute, delegate its power to other bodies or persons. The statute which delegates such power is known as Enabling Act. By Enabling Act the legislature, lays down the broad guidelines and detailed rules are enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution. It exists in form of bye rules, regulations, orders, bye laws etc.
There are many factors responsible for its increase: Parliament and State Legislature are too busy to deal with the increasing mass of legislations, which are necessary to regulate daily affairs. Modern legislation requires technicality and expertise knowledge of problems of various fields, our legislators, who are politicians are not expected to have such knowledge. Subordinate legislations are more flexible, quickly and easily amendable and revocable than ordinary legislation, in case of failure or defect in its application. When contingencies arise which were not forseeable at the time of making it, subordinate legislation can pass an act quickly to handle them. Quick, effective and confidential decisions are not possible in body of legislatives. So, executives are delegated with power to make rules to deal with such situations. These are the main factors, besides many others, for the fast increase in delegated legislation today. T h e l e g islation which is been done by the state organs other than the legislature is called as delegated legislation, entrusted upon the legislature. In other words delegated legislation means the legislation made by the subordinate agency with the help of legislative power. The separation of powers states that the legislative powers can be exercised only by the legislature in the state. Other than the legislature no other organ of the government can control or interfere the power of legislatures to make laws. The liberty and freedom of the individuals cannot be protected in a free Page | 146
democracy 1. Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern legislation. 2. Essential legislative functions cannot be delegated by the legislature. 3. Essential legislative functions means laying the policy of the Act and enacting that policy into a binding rule of conduct. In other words the legislature must lay down legislative policy and purpose sufficient to provide a guideline for the administrative rule making. 4. After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however numerous and significant they be. 5. In order to determine the constitutionality of the delegation of legislative powers, every case is decided in its special setting. 6. Courts have travelled to the extreme in holding very broad general statements as sufficient policy of the Act to determine the question of constitutionality. 7. There are various forms of administrative rule making. However, the parameter for determining the question of constitutionality is the same, namely, the legislature must lay down the policy of the Act.
A number of general principles which emerge from the various judgments relating to delegation of legislative power are as follows : (1) The Constitution confers law-making power on the Legislature and as such the said function cannot be delegated by the legislature to the Executive. The legislature can neither create a parallel legislature nor destroy its legislative power.
(2) Delegation of legislative power is permissible provided this does not amount to abdication of legislative function and policy is laid down by the Page | 147
legislature.
(3) The legislature cannot delegate essential legislative function. The essential legislative function consists in the determination of the legislative policy and making it a binding rule of conduct.
(4) If the legislature has performed its essential function of laying down the policy of law, there is no constitutional bar against delegation of subsidiary or ancilliary powers in that behalf to the executive for making the legislation effective, useful and complete.
(5) A statute delegating law-making powers to the executive shall be invalid if it lays down no principles and provides no standards for guidance to the rule-making body.
(6) The legislative policy can be formulated as broadly and with as little or much detail as the Legislature thinks fit. It is not necessary that the policy must be express, it may be implied as well. It may be gathered from history, preamble, title, scheme, statement or objects and reasons. Guidance may be found anywhere in the statute.
(7) Power to repeal does not make delegation valid if otherwise it is excessive, impermissible or unwarranted.
(8) When a statute is challenged on the ground of excessive delegation, it must satisfy two tests : (i) whether it delegates essential legislative function or power, and (ii) whether the legislature has enunciated its policy and principle for the guidance of the delegate.
(9) Whether the legislature has performed the essential legislative function and laid down the policy and the delegation is permissible or not depends upon the circumstances of the statute under consideration.
(10) Delegated legislation may take different forms. However, these principles Page | 148
apply to all forms of delegation viz., conditional legislation, subordinate legislation, supplementary legislation, sub-delegation etc.
Delegated legislation in the changed socio-economic complexion has become a constituent element of legislative power as a whole. 349 Broad delegations of legislative power are upheld where they relate to taxation, socio-economic legislation and elected bodies. The doctrine of excessive delegation and legislative policy are safety valve necessary for functioning of Democratic Government in developing Countries
349 Tata Iron and Steel Co. Ltdy. Their Workmen, AIR 1972 SC 1918, 1922.
Page | 149
BIBLIOGRAPHY 1.
Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed., Allahabad Law Agency, Faridabad, 2011.
2.
Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University Press, New Delhi, 2006.
3.
Kesari, U.P.D ; Administrative Law ,15 th Edition Central Law Publications ,Allahabad,2005
4.
D.D. Basu 7th Edition 2006, “Administrative Law”
5.
S.
P.
Sathe,
Administrative
Law,
7 th Edition,
LexisNexis
Buttersworth Wadhwa, Nagpur.
6.
Bharadvaja B (2007 ) Delegated Legislation in India Meenakshi Prakashan
New
Delhi
Takwani
C.K.
(2007)
Lectures
on
Administrative Law. Eastern Book Company, Lucknow.
7.
Delegated Legislation and Exercise of Delegated Powers in India: With Special Reference to Customs and Central Excise Laws : Some Aspects, Somaiya Publishers, Delhi
8.
Chawla P S (2007) Meaning of Delegated Legislation & Judicial Control
of
Delegated
Legislation,
UILS
Punjab
University,
Chandigarh
9.
Kumar, Narender; (2011) Nature and Concepts of Administrative Law, 1st Ed., Allahabad LawAg ency, Faridabad,
Page | 150
10.
Wade, H.W.R. & Forsyth, C.F.; (2007) Administrative Law, 9th Ed., Oxford University Press, NewDelhi, 2006.5. Kesari, U.P. (2005)Ad ministrative Law , 15 th Editi on Central Law Publications ,Allahabad
INTERNET /WEB RESOURCES 1. www.legalservicesindia.com 2.
www.shareyouressays.com
3. www.scribd.com 4. www.lawyersclubindia.com Cases Referred 5. www.Manupatra.com 6. www.indiakanoon.com 7. www.scconline.com 8. www.wikipedia.com
9. www.sscrn.com
10. www.articlesbase.com
11. www.legalquest.in/index.php/students/.../415-sub-delegation.html
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FACULTY OF LAW, JAI NARAIN VYAS UNIVERSITY, JODHPUR
DISSERTATION “DELEGATED LEGISLATION & ITS JUDICIAL CONTROL : AN ANALYTICAL STUDY”
_______________________________________________ NON-DOCTRINAL RESEARCH SUBMITTED IN LIEU OF PAPER VII DISSERTATION FOR LL.M. FINAL YEAR SESSION 2016-17 ____________________________________________________________________________
UNDER SUPERVISION Prof. V.K. Bagoria Assistant Professor Faculty of Law, JNVU
SUBMITTED BY Shubham Modi LL.M. Final Year Administrative law Roll No- 3 Page | 152
1. Views of Senior advocate and Advocates with regard to delegated legislation
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VIPUL DHARNIA ADVOCATE 9413257026
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Delegating law-making powers to the executive Question 1 - Whether a judicial function can be delegated or not ? No, judicial functions can’t be delegated. Recently in 2017 it was held in “Black Pearl Hotels (Pvt) Ltd vs. Planet M Retail Ltd”350, Supreme court held that a judicial functioning has to be done in a
judicial
manner,
observed
the
Supreme
Court
while
holding
that Section 33(2) of the Stamp Act does not empower the judge of the high court to direct the officer of the high court to enquire and to find out to direct the officer of the high court to enquire and to find out the nature and character of the document. A three-judge bench opinion- A three-judge bench headed by Justice Deepak Mishra, In Black Pearl Hotels (Pvt) Ltd vs. Planet M Retail Ltd, observed that the duty of determination of an instrument or, to explicate, to determine when there is a contest a particular document to be of specific nature, the adjudication has to be done by the judge after hearing the counsel for the parties. It is a part of judicial function and hence, the same cannot be delegated.
350
(2017)4SCC498
Page | 164
Question 2 – what is the Henry VIII clause whether any autonomous university have such clause in their Act or not ? Sometimes, power is conferred on the government to modify the existing statute for the purpose of removing difficulties so that it may be brought into full operation. When the legislature passes an Act, it cannot foresee all the difficulties. Which may arise in implementing it. Legislature, therefore, introduces in the statute a “removal of difficulty” clause envisaging that government may remove any difficulty that may arise in putting the law into operation. Henry VIII Clause . — This type of delegating clause has acquired the nickname of Henry VIII Clause as personifying "executive autocracy”. Henry VIII was the King of England in the 16th Century. During his regime he enforced his will by-using instrumentality of Parliament for the purpose of removing difficulties which came in his way. The origin of “removal of difficulties” clause is thus linked with the name of Henry VIII. As it is well settled fact that JNVU is autonomous body and Jai Narain vyas university act having Henry VIII clause for removal of difficulties. Clause envisages that university may remove any difficulty that may arise in future.
*JAI NARAIN VYAS UNIVERSITY, JODHPUR (REMOVAL OF DIFFICULTIES) ORDER, 1963 (See Section 39) Whereas certain difficulties have arisen in giving effect to the provisions of *Jai Narain Vyas University, Jodhpur Act, 1962 (Rajasthan Act 17of 1962); Now, therefore, in exercise of the powers conferred by section 39 of the said Act, the State Government makes the following order. (1) This order may be called *Jai Narain Vyas University, “JODHPUR (REMOVAL OF DIFFICULTIES) ORDER, 1963 ”.
(2) It shall be deemed to have come into force on the 16 111 day of July, 1962, and shall remain in force for a period of two years. 1. In this Order, unless the context otherwise requires —
(1) ’Act’ means *Jai Narain Vyas University, Jodhpur Act, 1962 (Act 17 of 1962); Page | 165
(2) ’Section’ means Section of the Act; (3) 'Special Officer’ means Special Officer appointed under section 37; and (4) 'Vice-Chancellor' means Vice-Chancellor of the University appointed under section 11. 2. Notwithstanding anything contained in sections 4, 8, 13, 22, 24, 27, 28 and 35(1) or any other provisions of the Act, the ViceChancellor may, by an order in writing while this order is in force and until the Statutes or Ordinances, as the case may be, are duly made and brought into force, —
(a) exercise the powers of the University — (i) to institute, subject to the approval of the State Government, professorships, readerships, lecturerships and other teaching posts required by the University;
(ii) to appoint or recognise persons as professors, readers or lecturers or otherwise as teachers of the University; and
(iii)
to appoint officer of the University :
Provided that no person shall be permanently appointed or recognized under parts (ii) and (iii) above until his appointment has been confirmed by the Syndicate; Notification F. (98) Edu./Cell-III/62 dated 29 October 1963. Published in Rajasthan Gazette Extraordinary, Part IV A, dated 29 October 1963. Provided further that the Vice-Chancellor may authorise the Special Officer, for the purpose of subsection (1) of section 35, to execute contracts on behalf of the University and such contracts shall be lodged with the Special Officer;
(iv) to acquire, hold and manage property, movable and immovable, including trusts and endowments for the purpose of the University;
(b)specify the authorities responsible for organising the teaching recognised by the University;
(c) provide for all or any matters specified in clause (c), (g) and (h) of section 21 and associate with or admit any college or institution within the municipal limits of the city of Jodhpur to the privileges of the University under section 5;
(d)provide for all or any matters specified in section 23; (e) maintain or approve and recognise hostels and halls; (f) exercise the powers of the University to establish the University Fund Page | 166
and prescribe the moneys to be credited to the said Fund and the matters to which the said fund shall be applied and appropriated, prepare a statement of financial estimates of the University for the current year, direct the investment and placing of the fund in proper custody and authorise the Special Officer or any other officer or person to operate upon the said fund with such powers of credit and withdrawal therefrom as may be specified. 3. All orders or directions made by the Vice-Chancellor under this Order shall be deemed to have been validly made, and all actions taken in pursuance of such directions or orders shall be deemed to have been lawfully taken, notwithstanding anything inconsistent therewith in the Statutes and Ordinances finally.
Page | 167
QUESTION - 3- Whether due to shift to welfare state, there has been increase in the administrative functions of the country. After independence there was a lot of confusion regarding delegation of legislative power to the executive or not ? Delegated
legislation
is
one
of
the
most
inevitable
parts
of
administration. Along with being most significant, it was one of the most debatable issues in India. According to the traditional theory, the function of the executive is administering the law enacted by legislature and in ideal state the legislative power must be exclusively dealt by the legislature. 351 But due to increase in administrative function and shifting of the concept to welfare state, they have to perform certain legislative functions. 352 STATUS BEFORE CONSTITUTION:
A lot of decisions from privy councils to Supreme Court deal with the same. This discipline can be read into three times - pre independence, Post independence and post constitution. In pre constitution era when Privy Council was the highest court of appeal from India till 1949 question of constitutionality of delegation of legislative power came before it in case of Queen v Burah 353. The act in dispute gave certain powers to Lt Governor namely - the power to bring the act in effect, determine what laws were to be applicable and power to extend the application of the act (Sec. 9). The act was enacted to remove garo hills from the jurisdiction of civil and criminal courts and extend all or any provisions of the Act in Khasi, Jaintia and Naga Hills in Garo Hills. . The question was whether giving Lt Governor power to extend the application of the law is delegation of power? Privy Council 351 352 353
SP Sathe, Administrative Law, p 39 (3rd Edn., Lexis Nexis Butterworths) Takwani, Lectures of Administrative Law p 23 (3rd Edn., Eastern Book Company). 1878 3 AC 889 Page | 168
observed that Indian legislature is not an agent or delegate as against Calcutta High Court 354 but was intended to have plenary powers of legislation, and of the same nature of the parliament itself. It was observed that Indian legislature had exercised its judgment as to the place, person, law, powers and what the governor was required to do was to make it effective upon fulfilment of certain conditions. This is called conditional legislation which was upheld by the court. The question of permissible limits of legislative power became important in Independent India. Just on the eve of independence, the federal court had held in Jatindra Nath v Province of Bihar 355 that there could be no delegated legislation in India beyond conditional legislation. Provincial Govt. could by notification was allowed to extend the time for which the Bihar Maintenance of Public Order Act 1948 was to remain. The court held this power non-delegable. There was a lot of confusion regarding delegated legislation after these cases. 356 The question of moot was whether the legislature of Independent India should be restricted to such rules or should it be given greater freedom? The next step of confusion was whether India should follow American model where unlimited power cannot be delegated or like that of England where as much power can be delegated? It was left open to the courts to follow either of the models because of similarities between the US and UK with India. Further, Indian constitution is silent on the issue whether legislature can delegate or not and hence, such issues could not possible be decided with keeping constitution as the basis. AFTER CONSTITUTION: IN RE DELHI LAWS ACT CASE: ANALYSIS OF FACTS AND JUDGEMENT: In order to remove doubts regarding the validity of a number of laws which contained such delegation, the president of India under article 143 of the Constitution asked the Court's opinion on the three questions submitted for its consideration and report. 357 The three questions are as follows :-
(1) 354 355 356 357
Was section 7 of the Delhi Laws Act, 1912, or any of the
Empress v Burah and Book Singh ILR 3 Cal 64 (1949) 2 FCR 595 Supra Note 1, at 42. Id.
Page | 169
provisions thereof and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act ? Section 7 of the Delhi Laws Act, mentioned in the question, runs as follows "The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification."
This act delegated to the provincial Govt. the power to extend to Delhi area with such restrictions and modification any law in force in any part of British India. This was held valid by the majority.
(2)
Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or
any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act ? Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows :"Extension of Enactments to Ajmer-Merwara. - The Central Government may, by notification in the official gazette, extend to the Province of Ajmer- Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification." This act delegated the power to the Govt to extend to the province with such modification and restriction as it may deem fit. This was also held valid by the court.
(3)
Is section 2 of the Part C States (Laws) Act, 1950, or any of
the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament ? Section 2 of the Part C States (Laws) Act, 1950, runs as follows :Page | 170
"Power to extend enactments to certain Part C States. - The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a part A State 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 Act) which is for the time being applicable to that Part C State.
-
Part C were states directly under the control of the Central
Govt without having a legislature of their own and hence, Parliament had to legislate for them. This act delegated the power to the Central Govt to extend to Part C States with such modification and restriction as it may deem fit any enactment which was in force in any Part A states.
It
also
empowered
the
Govt
to
repeal
or
amend
any
corresponding law which was applicable to Part C States. Sec 2 of the Act was held valid but the power to repeal or amendment of any corresponding law which was for the time being applicable to part C was void and was held to be excessive delegation. ANALYSIS OF OPINION: Seven judges presided over the case providing us with 7 different opinions. The importance of the case cannot be under estimated in as much as, on one hand it permitted delegated legislation while on the other it demarcated the extent of such permissible delegation of power. 358 The question was on the limits to which legislature in India can delegate its legislative power. There were two extremist views put forth by the counsels : M C Setalvad took the view that power of delegation comes along with the power of legislation and the same does not result in abdication of the powers. The other counsel took the view that there exist separation of powers in the country and India follows delegates non potest delegare. Therefore, there is an implied prohibition on delegation of power. As both the views were 358
Supra Note 2, at 70.
Page | 171
extremely extremist, the court took the middle view. The Supreme Court took the following view and the 7 opinions were based on the same:
Separation of power is not a part of Indian Constitution Indian parliament was never considered as an agent of anybody. Therefore doctrine of delegates non potest delegare is not applicable
Parliament completely cannot abdicate itself by creating a parallel authority
Only ancillary functions can be delegated There is a limitation on delegation of power. Legislature cannot delegate its essential functions. Essential function involving laying down the policy of the law and enacting that policy into binding rule of conduct. Based on these views, the Supreme court gave 7 different views. There was unity of outlook on two points: firstly, keeping the exigencies of modern govt in view, Parliament and state legislatures have to delegate the power in order to deal with multiple problems prevailing in India, as it is impossible to expect them to come with complete and comprehensive legislation on all subjects sought to be legislated on. Secondly, since the legislature derives its power from the Constitution, excessive freedom like in the case of British constitution cannot be granted and limitations are required. Judges differed on the question as to what were the permissible limits within which the Indian legislature could delegate its legislative powers. One view propounded that the legislature can delegate to the extent to the limit it does not abdicate its own power and have control over the delegate: that is it must retain in its hands the ultimate control over the authority so as to be able to withdraw the delegation whenever delegate did something wrong. Second view propounded that the legislature cannot delegate its essential functions which comprised the formulation of policy etc. That meant the legislature should lay down the standards or policy in the delegating Act and delegate may be left with power to execute the policy.
Page | 172
Fazl Ali, J conclusions regarding the case was:
(1) The legislature
must normally discharge its primary legislative function
itself and not through others.
(2)
is ancillary to and necessary for the full and effective exercise of its power of legislation.
(3)
It cannot abdicate its legislative functions, and does not become a parallel legislature.
I.
Power to Legislative Includes Power to Delegate
It was concurred upon that the intention that legislation should essentially be enacted by the Legislature is manifested; the Legislature cannot retire and leave the task of law making to any other body or class of bodies. Therefore, delegation in respect of delegating law making authority by one legislature to another is, by necessary implication, forbidden by the Constitution. It was claimed by the Attorney General, M C Setalvad that Parliament could delegate because of the legislative power carried with it is power to delegate which was reject out rightly by
C.J Kania, Mahajan and
Mukherjea J.J opining that 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 Bose J who was in favour of delegated legislation, also concurred with the opinion above. However, Sastri and Das JJ , agreed to the contention and differed from the other judges. Their decision was based on the theory of Parliamentary sovereignty and observed that power to make law comes along with the power to delegate. This case was decided in 1951 and since then things have changed drastically. It is now judicially conceded that power of delegation is Page | 173
constituent element of legislative power; and the power resides in the legislature. 359 This is near to what the attorney general had contended that time.
II.
limits of Delegation
The position is that the legislative function in its true and intrinsic sense cannot be delegated. Therefore what can be delegated are only the non essential functions. Only functions ancillary to the essential functions of the legislature. According to the opinion of J Mukhreaja - if the policy laid down in an Act is in broad terms, the formulation of the details of the policy can generally to be passed to the executive. Mahajan J commented that essential matters cannot be delegated by the legislature . Kania CJ opined that legislature cannot delegate to lay down policy underlying a rule of conduct. Discretion to make modifications and alterations in an Act while extending it to a given area, and to effect consequential amendments or changes in an existing law is again conditioned with the proposition that essential functions can’t be delegated. The question on amount of discretion exercisable by delegated authority cannot be defined and is a moot question.
III.
Delegation of power to make modifications and alterations
The questions stated in this case is already stated above. Most of the judges answered these questions in affirmative. Only Kania C.J and Mahajan J gave answers in negative way. They observed that only legislature has the authority to modify and alter the law in any substantive sense. Fazel Ali J , power to change necessary things is incidental to apply the law. If modifications are done within the framework and does not change the identity or structure no objection could be taken. Mukhreaja J observed that modification does not mean change of policy but it is confined to alterations which keeps the policy intact and introduces changes appropriate to suit the local conditions. Bose J also was of the same opinion. In this way majority felt that the executive authority could be authorised to modify but 359 DS
Garewal v State of Punjab, AIR 1959 SC 512 (517).
Page | 174
not in essential and intrinsic sense.
IV.
Repeal of Law
Power to repeal a law is essentially a legislative power and hence, delegating that to the Govt. is at once ultra vires the power to delegate. Fazl Ali, Das J and Sastri JJ held all the sections to be perfectly valid. The majority based its opinion on the maxim expression unis est exclusion alterious, and ruled that an express provision permitting delegation contained in article 357 would mean uncontrolled legislation was not permitted under the constitution. Essential functions could not be delegated under any condition. The minority based its view of the theory of legislative omnipotence of the British Parliament, and its reflection in the Australian, the Canadian and the Indian Constitutional systems, which include power to delegate legislative function, subject to the condition of non-abdiction. According to me, the variance between the views of the minority and majority was not materially different. To say that legislature should not abdicate its power is similar as to say that the legislature should not delegate its essential powers.
V.
Impact of the in re Delhi Laws Act Case:
After In Re Delhi Laws Act, the question which arose was related to the limits of delegation and the grounds for the same. The first case was Gwalior Rayon Silk Manufacturing Co. v Assistant Commissioner of Sales Tax 10 wherein S 8(2)(b) of Central Sales Tax Act. 1956 authorised levying of sales tax on interstate sales @ 10% or at the rate applicable to sale or purchase of goods in that state whichever is higher. This was challenged as excessive delegation on the grounds that no policy was laid down in the parent act. The Act was upheld to be valid. J Khanna gave the “Standard Test” - when legislature confers powers on an authority to make delegated legislation it must lay down policy, principle or strandard for the guideline for the authority concerned. J Matthew gave the “Abdication Test” - As long as the legislature can repeal the parent act conferring power on the delegate, the legislature does not abdicate its Page | 175
powers. The majority refused to accept this test. J Mathew, in the case of N K Papiah v Excise Commisioner 11 held the legislation valid based on his test. The question was whether the Act which conferred power on the Govt. to fix the rate of excise duty 12 and lay them before the legislature was valid or not. Further in the case of Brij Sunder v First Additional District Judge 13 the court even allowed the extension of future laws of another state to which the adopting state legislature never had an opportunity to exercise its mind. In addition to this, in registrar of Co-operative Societies v K Kanjambu 14 upheld the “Policy and Guideline” test. All these cases upheld the constitutional validity of the delegated legislation. Analysis and Conclusion: The case has materially contributed in the development of the concept of delegated legislation by clarifying certain areas of confusion. One of it was laying
down
that
British
model
of
Delegated
Legislation
cannot
be
implemented in India because of the difference of Constitution. Moreover, it laid down that delegation is possible and necessary due to increase in burden on the legislature and increase in administrative activities. This cleared the confusion of conditional delegation and delegation. This case increased the scope of the delegated legislation to the extent of ancillary powers i.e. non abdication of own power and non-transferring of main and essential functions. Majority judges were in favour of delegated legislation except Mahajan J and Kania CJ who was emphasizing more on the conditional
360 361 362 363 364 delegation.
As the opposite Counsel built on the
argument of Sepration of power and the concept of non potest delegare, the court observed that separation of power is not a part of Indian constitution. Courts are clear on the status of delegated legislation being allowed. 365 The only question in courts regarding such cases is that whether the power
360 361 362 363 364 365
(1974) 4 SCC 98 (1975) 1 SCC 492 S 122 of Karnataka Excise Act (1989) 1 SCC 561 (1980) 1 SCC 492 Agricultural market Committee v Shalimar Chemical Works (1997) 5 SCC 516. Page | 176
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