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CHAPTER 3

DELEGATED LEGISLATION

SYNOPSIS

1. INTRODUCTION

A trend very much in vogue at the present time in all democratic

countries is that only a relatively small part of the total legislative output

emanates directly from the Legislature. The bulk of the legislation is

promulgated by the Executive as a delegate of the Legislature, and this is

known as “delegated legislation”. Salmond denes the expression

‘Delegated legislation’ as “that which proceeds from any authority other

than sovereign power and is therefore dependent for its continued

existence an d Va- lidity on some su perior or supreme authority”.’ 1

Usually, what happens is t hat the Legislaiire en acts a law covering only

the general p rinciples and policies relating to th subject m atter in

1 See Salmond, Jurisprudence, 12th Edn, p. 116.

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question, and confers rule-making power on the Government, or on some

other administrative agency. The delegation of legislative power is

permissible only when the legislative policy is adequately laid down and

the delegate is empowered to carry out the policy within the guidelines

laid down by the legislature. 2

This technique of delegated legis

modem ad- ministrative process that t here is no statute enacted by the

Legislature to-day which does not delegate some power of legislation to

the Executive. Delegated legislation is so multitudinous that the statute

book will not only be incomplete but

along with the delegated legislation which amplies a nd sup- plements

it. 3 In no democratic country does the Legislature monopolise the whole

of the legislative power; it shares this power with the Government and

other a dministrative agencies. It is now well established proposition of

law that the power o f delegation is a constituent element of legislative

power as a whole and that in mod times legislature enacts laws to meet

2 Tata Iron and Steel Co. Ltd. v. Workmen, AIR 1972 SC 1917, para — 1 1, p. 1922 :(1972) 2 5CC 383.

3 See CARR, CONCERNING ENGLISH ADMINISTRATIVE LAW (1941).

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the challenge of socio-economic problems. j Legislature often nds it

convenient an d necessary to delegate subsidiary or ancill powers to

delegates o f their choice for carryi ng out policy laid down in the Act.4

The term “delegated legislat

(a) the exercise by a subordinate agency of the legislative power

delegated to by the Legislature, or

(b) the subsidiary rules themselves which are made by the subordinate

agency pursuance of the power as m entioned in (a).

As administrative lawyers, we are more interes

rather thar the actual rules m ade, and so t he term “delegated legislation”

is u sed here primarily in the rst sense.

In India, quite often the term employed is “subordinate legislation”. This

term con veys the idea that the authority making the legislation is

subordinate to the Legisla ture. The technique of delegated legislation is

very extensively used in

4 Vasanlal Manganbhai v. State of Bombay, AIR 1961 SC 4, para 4 , p. 7 : (1961) 1 SCR341 see al so Agricultural Market Committee v. Shalimar C hemical Works Ltd. (1997) 55CC 516, para 24, p. 524 : AIR 1997 SC 2502.

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(i) The Imports and Exports (Control) Act, 1947 is a sm all piece of

legislation containing eight sect ions. S. 3 authorises the Central

Government to prohibit or restrict the import or exp ort of goods of

any sp ecied description by order.

Under this provision, the Central Government has built up a vast

mechanism of control over imports and exports through delegated

legislation promulgated under the st atute.

(b) Under the Essential Commodities Act, 1955, the Central and State

Govern- ments have promulgated a large number of orders and

rules. The Act i n itself is a small piece of legislation containing only

1 6 sections, but under it the Government carries on the whole

operation of controlling and regulating production, movement,

supply, sale, and prices of a number of commodities ch aracterised

as ‘essential commodities”. 5

5 The crucial provision in this Act is section 3. See the Bagla case, AIR 1954 SC465 : (1955) 1 SCR 380.Also, Indian Law Institute, Administrative Process u nder theEssential Commodities Act, 1955(1964). For an extract from this work see, JAIN, CASES ON ADMINISTRATIVE LAW,I, 1.

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Delegated legislation (in the seco nd sense m entioned above) is d esignated

by 5ev- eral names, such as, rules,

though the term “rules” is more commonly employed. The terms

“regulations” 6 and “bye-laws” 7 are usually used to denote the legislation

framed by statutory corporations under delegated leg- islative power. 8

Generally, in respect of these corporations there are two levels of

delegated legislation: the Government itself has power to promulgate

“rules” and, accordingly, to distinguish the government-made “rules”

from what the corporation itself may make, a different terminology

(regulations) is u sed for t he l atter.

Sometimes, the term ‘orders’ is u sed to denote delegated legislation. An

example of promulgating delegated legislation through “orders” is

provided by the Imports an d Exports (Control) Act, 1947.

6 See, infra, Chap. 7 on Directions a nd the ch apter on Public S ector Undertakings.Chapter 27.

7 The power to m ake b ye-laws by the respective st atutory a uthority is to be found interalia in the following st atutes: the Coir Industry Act, 1953; the Tea Act, 1953; and theDelhi Municipal Corporation Act, 1957.

8 For Pu blic Sector Undertakings,see, Chapter 27.

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At times, a statute may use seve

made iereunder. For instance, in the Income-tax Act, 1 96 1 , the powers

to issue “orders”, “notications” and “rules” are sp read over a n umber of

sections, e.g.:

(i) a general power t o make ru les for sever al matters is conferred on the

Central Board of Direct Taxes b y s.295;

(ii) under sections 121 to 124, distribution and allocation of work to be

per- formed by various tax authorities may be made through

“orders”;

(iii) under S. 80-J(7), the Central Government through a “notication”

in the Official Gazette may take away an exemption granted under

the sect ion from certain newly est ablished undertakings; and

(iv) s. 80-K speaks of the “rules” with reference to tax on dividend from

newly est ablished undertakings or hotels.

The Essential Commodities Act, 1955 uses three terms—order, notied

order and notication—which the Central Government can make in

exercise o f the p owers d elegated to it under the Act.

2. FACTORS LEADING TO THE GROWTH OF

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DELEGATED LEGISLATION

A number of factors have been responsible for

legislation in modern democratic states. The function of State has long

since ceased to be con- ned to preservation of public peace, the

execution of laws and defence of Frontiers. The function of the State is

now to secure to its citizens objectives set out in Chapters III and IV of

the Constitution. The desire to attain these objectives has resulted in

intense legislative activity. The Parliament a nd the State Legislatures

have neither the time nor the expertise to deal with technical and

situational intricacies. The Parliament and the State Legislatures c annot

visualize and provide for new strange, unford unpredi

situations, arising out of complexity of m odern life. This is the raison

d’etre for d elegated legislation. That i s what m akes delegated legislation

inevitable a nd indispensable. 9

The modern State functions on a very wide

day lives of the p eople t o a very large extent. It directs a major p art of the

9 Registrar, Co-operative Societies v. Kunjabmu, AIR 1980 SC 350, para 3 , p. 351:(1980)1 SCC 340.

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socio-economic development in the country. In India, since

independence, the Government is endeavouring to evolve a socialistic

pattern of society through democratic means which in- volve massive

planning and control of various activities, especially private trade and 10

All these circumstances create

become an accepted vehicle of socio-economic change and development

in the d emocratic so cieties.

The demand for law, which is practically i

pressure of work on the Legislature which not only makes laws but also

discharges such other functions as supervising the Government,

discussing and inuencing its policies, discussing proposals for t axation

and expenditure, ventilating people’ S grievances, etc.” 11

During the laissez faire era, when Government discharged only limited

functions, t he Legislature could possibly enact a ll legislation that was

needed, but t o-day it can- n ot cop e with all the legislative work by itself

unaided. A method to economies l eg- islative time is d elegated legislation.

10 Supra, Chap. 1.

11 For a d escription of the functions o f a Legislature i n India see j ain, Indisnconstitutional Law, Chs. II and VII (5 th Edn. Reprint 2006).

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The Legislature connes itself to laying down broad policies and

principles in the legislation it enacts and leaves the task of shaping and

formulating details to the con cerned administrative age ncy.

If the Legislature were to attempt enacting comprehensive laws including

not on ly policies but al l necessary details as well, its work-load would

become so heavy that it may not be able

diverse subjects which the public de mands of it and which only the

Legislature can enact. It is, t herefore, essen tial to free the Legislature

from the burden of formulating details so that it can better d evote its

time to the consideration of the essential principles and policies. Also, if

each piece of legislation enacted by the Legislature were to be complete

with details, the legis

cumbersome, difficult to understand by the common man.

Further, since most of the present day activities of the State relate to

socio economic matters, legislation tends to be quite technical an d

complex a nd expert knowledge is r equired to work out the details to fully

implement the p olicy in view. This ca n be d one b etter by specialists in the

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Administration rather than by lg

not experts in these m atters.

There are also occasions when it

include in the bill all details which may be needed to implement large

and complex schemes of reform and, therefore, the task of evolving the

necessary d etails in this regard has to be left to the Administration. At

times, it may be deemed advisable to hold consul. tation with the

interests affected before a ll details of the policy are worked out and the

Administration may be depended upon to do so before nalizing the

details.’ 12

Apart from the above mentioned factors, the system of delegated

legislation has become popular because it has the advantages of

exibility, elasticity, expedition and opportunity for experimentation.

Usually, many present day socio-economic schemes at the legislative

stage are experimental in nature and it is difficult to foresee what

problems would arise in future in working them out in practice. Many a

time, legislation is ru shed through the Legislature in a hurry in the h ope

12 On Consultative Procedure, see, infra, Ch. 5.

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that through experimentation the executive would be able to nd the

right solutions for problems at h and. This means that d etails of these

schemes n eed to be con stantly adjusted in the light of experience ga ined

in the cou rse of their operation. It would waste m uch time, and increase

pressure on the Legislature, if every t ime n eed is felt to effect adjutment

in a scheme, the m atter i s ref erred to the Legislature.

The technique of delegated legislation provo

constant ad aptation to unknown future conditions, and utilisation of

experience, without the for- m ality of the Legislature enacting amending

legislation from time to time. As Wade and Phillips point out, delegated

legislation fulls the need of modern times “that something less

cumbrous and more expeditious than an Act of Parliament shall be

available to amplify the main provisions, to meet unforeseen

contingencies and to facilitate adjustments that m ay be called for after

the scheme has b een put into operation 13

A modern society is faced many a time with sit

need is felt for legislative action. There may be threats of aggression,

13 WADE AND PHILLIPS; CONSTITUTIONAL LAW 608 (1965).

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breakdown of law and or- der, st

adequately unless the executive has standby powers. The Legislature

cannot meet at s hort notice and turn out legislation on the sp ur of the

moment. It is, therefore, a desirable exp edient to pre-arm the government

with necessary powers so as to enable i

notice by promuulationg the needed rules a nd regulations according to

the needs of the situation the defence on India Act, 1971 is a case in

point.

The supreme Court of India has mentioned the f

as t he dominant reasons for giving power of delegated legislations to the

government: 14

1.The are for which powers are give to make delegated legislation may be

technically complex, so much so, that it may be possible and may even

be difficult to set out al2.The Executive may requite to experiment and to nd out how the

original legislation was operation and therefore to ll up all other

details.

14 See, Agricultureal marketing Committee v. Shalimar Chemical Works Ltd., AIR1997 SC 2502, at 207 1997) 5 SCC 516 See also State of Rajashthan v. BasantNahata, (2005) 12 SCC 77, para 19 A IR2005 SC 3401

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3.it gives an advantage to the Executive, in the sense that a

Government with an onerous Legislative time schedule may feel

tempted, to pass s keleton legislation with the d etails b eing p rovided

by the making of rules and regulations.Because o f these f actors, delegated legislation, as a technique of modern

administrate O , is n ow regarded as useful, inevitable a nd indispesae.’ 15

In St. John’s Teachers Training Institute’ 16 the Supreme Court

emphasized the n eed for d elegated legislation. It was h eld that delegated

legislation i5 framed with care and minute- ness when the statutory

authority after co ming into force of the Act, is in a better p osition to

adapt t he Act t o special circumstances. Delegated legislation permits

utilization of expeffence and consultation with interests affected by

practical operation of statutes. It was further h eld that main justication

for delegated legislation is that legislature being over b urdened and the

needs of modern society being complex, it cannot po ssibly foresee ever y

administrative difficulty that may arise after statute has begun to

operate. Delegated legislation lls those needs. There was a time when

15 Committee o n Ministers’ Powers, at 4, 5,23,51,52,(1932).

16 St. John’s Tea chers Training Institute v. Regional Director, NCTE, (2003) 3 SCC321, para 10, p. 331 : AIR 2003 SC 1533

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delegated legislation was c riticised as u ndemocratic,’ 17 because it is m ade

by the Executive and not the Legisl

despotic powers of the bureaucracy. But, in course of time, much of the

antipathy towards delegated legislation has died down because its

practical administrative n ecessity. It is n ow characterized as t he n atural

reection in the sphere of constitutional law, of changes in our ideas of

Government resulting from changes in political, social, an d economic

thinking and of the changes brought in our lives due to scientic

discoveries a nd technological advances.3. NEED FOR SAFEGUARDS

However, the system of delegated legislation i5 not com pletely blameless

as it suffers from several defects. To some extent, it does involve

abandonment of its legislative function by the Legislature and

enhancement of powers of the Administration. Many a time, the

Legislature passes A cts in “skeleton” form containing only the bar- est of

general principles a nd, thus, leaves to the Executive the t ask of not only

laying down “details” but even that of formulating and determining

policies and principles relating to the subject matter o f legislation.

17 Lord H eart, The despot ism

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The Legislature often uses wide, subjec

power to the delegate to make such rules as appear to him to be

“necessary” or “expedient” for the purposes of the Act without laying

down any standards t o gu ide the discretion of the delegate. This am ounts

to giving a blank cheque to the d elegate to do whatever he likes. The Executive becomes powerful as it secures powers t ffec

liberty and property of individuals without the democratic restraints of a

debate in the Legisla ture as u sually happens when a statute is en acted

through the Legislature. Discussion on a bill in the Legislature secures

publicity; a lot of discussion takes p lace o n the p rinciples u nderlying the

bill both within and outsi

public mood. Legislation thus keeps in harmony with the public

sentiment. But t his salient and democratic safeguard is not avai lable in

the case of delegated legislation which is drafted in Government

chambers by som e anonymous civil servant and mostly promulgated all

of a sudden without much publicity or not ice. No one may come to know

anything about it until it is n otied. There m ay be n o public discussion,

no press cr iticism and no public opinion on it. The system thus becomes

undemocratic giving rise to the danger that the Government may misuse

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its p owers. At any rate, there is widespread suspicion and apprehension

that civil and personal liberties of the people may be en dangered by an

unbridled use of the technique of delegated legislation by the

Administration. Therefore, though the technique of delegated leg

advantages, has become generally acceptable, and the exigencies of

modern Government make its u se necessary, yet the dangers inherent in

its indiscriminate u se ca nnot be lost sight of. Rights o f the p eople ca n be

as vitally affected by delegated legislation as by primary legislation.

Accordingly, becomes necessary to evolve

the feeling of insecurity and distrust generated from an apprehension

that t he Government may misuse its powers of delegated legislation, to

ensure that t he statutory powers are exer cised and statutory functions

performed properly and that the Government is not able to capriciously

injure private rights o f person or p roperty. The basic problem, therefore,

devising su itable controls and safeguards so that t he advantages of the

technique of delegated legislation may be a vailable, while t he d angers an d

risks of abuse inherent therein may be minimized. The focus of the

inquiry thus shifts from the question of desirability of delegated

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legislation to that of its c ontrol and safeguards. Accordingly, the q uestion

to-day is n ot whether there sh ould be delegated legislation, but subject to

what safeguards it should be r

(a) Controls

The controls over delegated legislation operat

(a) At the point of delegation of power by the Legislature.

The question here is: how much power should the Legislature be

permitted to delegate? This is known as pre-natal control. The

question at t his stage is whether t he Legislature should be free to

delegate any amount of legislative power to the Executive, or t he

Legislature sh ould be restrained in this r espect?(b) At the point of exercise of delegated power by the

Administration. The question here is subject to what restraints and safeguards

should the delegate function in exercising the delegated legislative

powers? In short, what control-Mechanism should be put into being so as t o minimize the hazards

of the technique of delegated legislation? This is known as post-

natal control.It m ay be noted that b oth levels of control are supplementary to

each other. The efficacy of the con trol at the secon d stage, to a large

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extent, depends u pon the rst. If the Legislat confers p ower in very

broad terms, its exercise by the delegate cannot be effectively

controlled later. If the Legislature co nfers p ower s ubject t o certain

norms an d standards, then the exercise of the power can be tested

in the light of those standards, and any attempt by the delegate to

ignore those standards may be checked iw voiding the deleted

legislation produced by the delegate by applying the do trine of

ultra vires. 18

An attempt is made below to discuss cont

both the levels il

4. RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER

(a) Britain

Even in the earliest years of British Parliament, broad power t o legislate

by proclamation remained with the Crown. In 1539 Royal Power

proclamation for good order and governance was recognized by T4enry

VIII’ s Statute of

if made by Act of Parliament However the aforesaid statute was replaced

18 For d iscussion on the Doctrine of ultra vires, see, Ch. 4.

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in 1547. Thereafter t he Acts of Parliament delegated power to the crown

to make laws. 19th century saw a great increase in the delegation of

legislative power to Government departments an d other bodies Delegated

legislate ton is an inevitable feature of modem governance for several

reasons like pressures on parliamentary time, technicality of su bject-

matter, the need for exibility and the State of emergency. U.K.

Emergency Power Act, 1920 makes permanent provisions enabling the

Executive to legislate s ubject to parliamentary s afeguards in the even t of

certain emergencies.

In 2006 the Legislative and Regulatory Reform Act was passed, which

gives mm- is ters certain powers to make orders i. e. legislative reform

orders that remove or red uce burden resulting directly or i ndirectly from

legislation.

The validity of statutory ient may be chalai

grounds i.e. the content and substance of the instrument is ultra vires

the parent Act and that t he correct procedure has not been followed in

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making the instrument. 19 However, since 1 998 the scop e for ch allenges t o

the validity of delegated legislation has been signicantly widened. In

1998, the Parliament enacted Human Rights Act, 1998. Section 3(1) of

the Human Rights Act, 1998 casts a duty to interpret the legislation

consistently with the European Convention Rights where it is p ossible to

do so. Thus, the requ irement of a valid subordinate law is t hat it should

be in conformity with European Convention Law. A Northern I

discrimination order made a certicate of the Secretary of State

Conclusive evidence of the ground of dismissal of a woman public officer

which was violate of an European Community Council directi

an effective judicial remedy, in such matters. It was held that di smissed

officer could enforce the remedy in a domestic court. 20 In Bourgeois v.

Ministry of Agriculture 21 a ministerial order was held to be unlawjj on

account of conict with EC treaty.

19 R v. Environment Sec. Exp. Spath Holme Ltd., (2001) 1 All ER 195 : (2001) 2 AC

349. See a lso, Rohinson v. Secretary of Statefor Northern Ireland (Northern Ireland),(2002) UKHL 32.

20 Johnston v. chief Constable, (1986) 3 All ER 135 : (1987) QB 129 (ECJ).

21 (1985) 3 WLR 1027 : (1986) QB 716.

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It is a well settled legal proposition by a catena of decisions that

Parliament not intend delegated powers to be exercised for certain

purposes unless b y express w ords or by necessary implication it clearly

authorizes them. In R. v. Lord Chancel exp. Witham 22 the principle that

no one should be deprived of access to courts except by clear words of

Parliament was recognized. The Water Act 1973 empowered the

authorities to levy such charges as they thought t for services

performed, facilities provided, or rights made available. The House of

Lords in Daymond , Plymouth City Council 23 criticized the provisions of

the Act holding that such wide language must be given limited

construction so that sewage charges could not be imposed on properties

not served by the ci ty co uncil.

In Britain executive has no inherent legislative power. Statutory

Authority is indispensable. The de

immunity from challenge in courts which Acts of Parliament enjoy as

there is a fundamental difference between a sovereign and a subordinate

law making power. House of Lords in Hotel & Catering Industry Training22 (1997) 2 All ER 779 : (1998) QB 575.

23 (1975) 3 WLR 865 : (1976) AC 609.

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Board v. Automobile Ply Ltd. 24 declared invalid an order of Mister of Labor

which would have imposed Industrial Training Levy

not within the Industrial Trai ning Act, 19 64. S imilarly, where Inland

revenue m ade regulations t axing dividends a nd interest paid by building

societies on which tax had already been paid they were declared ultra

vires. 25 A provision of the prison Rules w as d eclared ultra vires b ecause i t

authorized excessive interference with prisoner’ 5 correspondence. 26

Where a building bye-law required an open space

every new building, so that in many cases it became impossible to

construct new buildings, it was held to be unreasonable. 27 But the court

normally construes, bye-laws benevolently and upholds them if

possible. 28

24 (1969) 2 All ER 582 : (1969) 1 WLR 697.

25 R. V. Inland Revenue Commissioner exp. Woolwich Eqitable Building Society, (1991)4 All ER 92: (1990) 1 WLR 1400.

26 R. v. Home Secretary exp. Leech (No. 2), (1994) QB 198 : (1993) 3 WLR 1125.

27 Repton School Governors v. Repton RDC, (1918) 2 KB 133; London Passenger Transport Board v. Summer, (1935) 154 LT 108 ( byelaw pr

fare u nreasonable).

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In R. v. Lord Chancellor exp. Lightfoot, 29 an order by Lord Chancellor

increasing court-fee payable for l itigation and requiring them to be paid

by someone on in- come support was held to deprive that person of

constitutional right of access t o Court.

Courts have declared invalid statutory instruments which have

purported to have retrospective effect in the absence of clear au thority

from Parliament. Court of Session in 1973 declared ultra vires a

regulation made by Secretary of State for Scotland which sought to

remove from qualied teachers the riht to continue education with- ou t

rst registration with a statutory t eaching council. 30

ø principle that d elegates non protest del egate i.e. a person to whom

power has j1egated cannot in turn delegate the power to another, has

also b een recogs b y the cou rts. 31

28 Cinnamond v. British Airport Authority, (1980) 2 All ER 368 : (1980) 1 WLR 582. Also see, Percy v. Hall,

29 (1999) 2 WLR 1 126 : (2000) QB 597.

30 Malloch v. Aberdeen Corp., 1974 SLT 253. Also see, R. v. Secretaryfor the HomeDepartment exp. Mundowa, (1992) 3 All ER 606 CA.

31 Allinghans v. Minister ofAgriculture and FiBlack Pool Corporation V. Locker, (1948) 1 KB 349 CA.

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some Acts have made provisions for consultations of interest. Sections

170 and 174 of the Social Services and Administration Act, 1992

provides for consul- J of interest. Similarly, sections 8 and 9 of the

Tribunals and Enquiries Act, z contain provis

interest. Where there is a duty to consult r because o f statutory d uty or a

consistent practice of consultation, the courts laid down the criteria for

proper con sultation, i.e. the consultation to be u nder-when the proposal

is at formative stage, sufficient reasons must be given for proposal to

enable an informed response to be given, adequate time must be al4 for

the response to proposals and product of consultation must be taken

into account when decision is made. 32

A serious procedural error of

being deader invalid. Where there was duty to consult intended

organizations before regulators were made, it was h eld mere sen ding of a

letter t o an organization didn’t amount to consultation. 33 A ban on oral

32 R. v. North Devon Health Authority exp. Coughian, (2000) 2 WLR 622 : (2000) QB213.

33 Agricultural Training Board v. Aylesbury Mushrooms Ltd., (1972) 1 WLR 190 :(1972) 1 All ER280.

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snuff was h eld illegal, as during consultation process the company was

not given scientic grounds on which the ban was m ade. It was further

held that u nfair consultation process can lead to instrument being

quashed. 34 Where a Department failed to allow sufficient time it was h eld

that there was no effective con sultation. 35

The doctrine of severability has al

delegated leg- isolation. It has been held that where either on the

grounds of substance or procedure an instrument is to some extent

defective this does not mean necessarily that whole instrument is a

nullity. It m ay be operative to its lawful extent or be binding on the

persons not affected by the defect of procedure. 36 The decision of such

severance is permissible only when after deletion the unlawful part of

34 R. v. Secretary ofState, Fxparte U.S. Tobacco International Inc., 1992 QB 53; seealso The North- em Ireland Commission for Children and Young People v. PeterHam, The Secretary of State,(2007) NIQB 52.

35 R. v. Social Services S ecretary ex p. Association of Metropolitan Authorities, (1986)1 WLR 1 (1986) 1 All ER 164.

36 Dunkley V. Evans, (1981) 1 WLR 1522 : (1981) 3 All ER 285.

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substance of provision remains essentially unchanged in purpose and

effect from what had been intended. 37

(b) U.S.A.

In the United States, the position is substantially different from what

prevails in Britain. The U.S. Congress functions under a written

Constitution, and the courts have power to interpret the Constitution

and declare a Congressional statute unconstitutional if it does not

conform with their view of the Constitution. In the celebrated case of

Yongstown & Tube Co. v. Sawyer, 38 the United States Supreme Court

ruled that American Constitution is inconsistent with the notion of

executive law making au thority.

There also prevails the doct

discussed earlier. 39 Besides, the U.S. Supreme Court has a lso invoked the

37 DPP v. Hutchinson, (1990) 3 WLR 196 : (1990) 2 AC 783; R. v. IRC exp. Woolwich

Building Society, (1991) 4 All ER 92.

38 343 U.S. 579, 589 (1952); Baker v. Carr, 369 U.S. 186 (1962; Powell v. McCormack, 395 U.S. 486 (1969).

39 Supra, Ch. i.

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doctrine of delegatus non potest delegare against d elegation by the

Congress. The doctrine means that a delegate cannot further delegate its

powers. The cou rts t hus a rgue that the Congress, being a delegate of the

people, cannot further delegate its law-making functions to any other

agency. 40

In the U.S.A., the question of delegation of legislative powers thus

involves a con- ict of values. On the one hand, the doctrine of

separation insists that the legislative function be kept al oof an d distinct

from the executive function. On the other hand, as already noted, the

exigencies of modern Government make it practically impossible to

concentrate all legislative power in the hands of the Congress which

cannot p ossibly dispose of al l legislative work by itself in the sense of

turning out a comprehensive legislation complete in all details on every

subject i t undertakes to legislate upon. If Congress w ere not willing to

delegate law-making power to some agency then it may be impossible for

it to enact t he kind and quantity of legislation which the country m ay

need.

40 HORST P EHMKE, DELEGATE POTESTAS NOR POTEST DELEGARI—A MAxIM OF AMERICAN CONSTITUTION LAw, 47 Cornell LQ 50 (1961); JAFFE, AN ESSAY ON

DELEGATION OF LEGISLATIVE PowER, 47 Col LR 359 (1947).

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Thus, pragmatic considerations have prevai

and, in course o f time, the courts h ave rel axed the rigors of the doctrine

of separation of powers and permitted broad delegation of power, subject

to the rider that the Con- grass itself should lay down standards or

policies for the guidance of the delegate, that d elegation should not b e

vagrant and uncontrolled, that Congress

to the execu tive to make any rules it likes, for to do so would amount to

an abdication of its functions by the Congress, If Congress transfers to

others “the essential legislative functions with which it is vested”, the

statute d oing so will be u nconstitutional. Therefore, the courts insist that

the Congress sh ould not delegate uncontrolled power to the Executive,

but that the Congress should itself decl

subject-matter of legislation, and only the power t o lay down details to

effectuate that policy m ay b e delegated to the Administration.

The test, in the words of Justice CARDOZO, is that “to uphold the

delegation there is need to discover in the terms of the Act a standard

reasonably clear whereby the discretion must be governed”. 41 ’ The

41 Panama Rening Co. v. Ryan, 293 US 388, 434 (1935). This case is knownpopularly as t he Hot Oil case. See, JAIN, CASES, I. 30.

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principle that authority granted by the Legislature m ust be rest ricted by

an adequate standard serves the theory of “separation” by ensuring that

fundamental policy decisions must be made by the Legislature and not

by officials. If the statute conta

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 the primary legislator.

The working of the rule can be i

two cases.

(i) In Panama Rening Co. v. Ryan, 42 the Congress authorised the

President to ban oil in inter-state commerce when produced in excess of

the quota xed by each State. The majority of the U.S. Supreme Court

held the Act bad, for the Congress declared no policy, established no

standards, and laid down no rule. There was no require- ment, no

denition of circumstances a nd conditions in which the transportation

was to be allowed or prohibit

42 293 US 388, 434 (1935).

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iii) Yakus V. U.S., 43 is a case on the other si de of the line. During World

War II, the office of the Price Administ

The relevant Act declared that the

declared policy of the Act to st abiornmodity prices w ith a view to prevent

wartime ination and its disrupti

prices xed had to be fair and equitable. In xing prices the

Administrator had to give due consider

a designated base-period.

The delegation, though in effect exe

valid by d Supreme Court for the Congress had stated the l

objective and had prejbed the method of achieving that objective—

maximum price-xing—and had laid down the standards to guide the

Administrator’s determination. The Court found a t the standards

prescribed were sufficiently denite an d precise so a s to en able every one

to ascertain whether or n ot the Administrator, in xing the designated

prices h ad conformed to those standards.

43 321 US 414 (1944).

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There are not many examples of the United States Supreme Court

declaring Con- gressional legislation unconstitutional because of

excessive delegation of legislative power. Only in three cases of

signicance has the delegation been held to be excessive 50 far. 44 The

exigencies of modem Government have persuaded the çpurts to relent in

their a ttitude towards delegation. The basic premise still remains that

Con- gress cannot delegate legislative power without prescribing

standards, but whether t his test is satised or n ot in case of a specic

legislation, is a matter on which courts h ave a dopted a liberal attitude.

In many cases, very broad delegations have been upheld and very vague

phrases have been held to be adequate as laying down standards, so

much so that one corn- mentator has remarked that “judicial language

about standards is articial”. 45 But still, 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

44 Besides Pa nama, two other cases ar e : Schechter v. U.S., 295 US 495 (1935); Carter v. Carter Coal Co., 298 US 238 (1936).

45 DAVIS, ADMINISTRATIVE LAW 54 (1951). ALSO, JAFFE, AN ESSAY ONDELEGATION OF LEG- ISLATIVE POWER, 47 Col LR 359 (1947); Lichter v. U.S., 334US 742 (1948).

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broad and indenite. Till that

delegation realising that Legislature to-day has to deal with complex

socio-economic problems and it may not be practical for it to

meticulously lay d own standards for t he d elegate to follow.

Nevertheless, the academic a nd judicial view is in favour of maintaining

the docthne that delegation by Congress should be accompanied by

discernible standards. It is a rgued that the doctrine serves t wo primary

functions.

First, it ensures t hat t he fundamental policy decisions will be made not

by an appointed official but by the body elected by, immediately

responsible to, the people. Formulation of policy is the primary

responsibility of the Legislature which task is entrusted to it by the

electorate.

Second, it prevents judicial review from becoming merely an exercise at

large by providing the courts with some measure against which to judge

the official action that has b een challenged. 46

46 J. SKELLY WRIGHT, BEYOND DISCRETIONARY JUSTICE, 81 Yale U 575 (1972);U.S. v. Robel, 389 US 258 (1967); JUSTICE HARLAN (Joined by JUSTICES DOUGLAS

AND STEWART) in Arizona v. California, 373 US 546 (1963).

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Even though the U.S. Supreme Court has upheld broad delegations

because of the exigencies of ent

always reiterates the doc trine of excessive delegation. The doctrine has

never been repudiated, though in ts practical application the courts

adopt a exible approach. Also, the existence of t doctrine may lead the

court to read the delegating provisions narrowly to avoid co stitutional

problems. 47 In recen t yea rs, there h ave been calls for r evitalization of th

excessive delegation doctrine from many quarters, even from those who

have antipathy towards social legislation. 48 However, justice Frank

Furter49 has aptly warned “the power which must more and more be

lodged in administrative ex perts, like a ll power i s open to a buse u nless i t’

s exerci se i s p roperly circumscribed and zealously scru tinized for w e h ave

greatly widened the eld of administrative discretion and thus opened

the d oors t o arbitrariness.” 49

47 National Cable Television Assn. v. U.S., 415 US 336 (1974).

48 SCHWARTZ, ADMINISTRATIVE LAW—A CASEBOOK 1 19 (1977).

49 FRANK FURTER, the public and its Government, 157 (1930).

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The development of extent of delegated l

been equally striking as in Bri

official study, “The promulgation of general regulations b y the execu tive,

acting under statutory authority has been a normal feature of Federal

administration ever since Government was es tablished.” 50 In U.S.A. for

many years now, the federal register in which delegated legislation is

published is m ore voluminous than the statutes at Large, in which laws

enacted by the congress ar e pu blished. 51 ’

In spite o f the d ilution of the th eory of non-delegation in the U.S.A., there

is a real doctrinal difference between Britain and the U.S.A. on the

question of delegation. Though, in both countries, delegation of legislative

power has come to be established as a technique of legislative and

administrative process, and broad delegations h ave com e to be p ermitted,

yet, while in the U.S.A.

the question as to how much delegation would be permitted in a given

situation, in Britain it rests with Parliament as th ere i s n o constitutional50 See BERNARD SCHWARTz. AN INTRODUCTION TO AMERICAN ADMINISTRATIVELAW SECOND EDITION.

51 Report of the ATTORNEY GENERAL’s COMMITTEE ON ADMIMSTRATIONPROCEDURE 97 (1841)

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limitation to restrain Parliament from assigning power where it likes.

Because of the doctrine of excessive delegation in the U.S.A., the

Congress does seek to lay down some standards in the legislation

delegating legislative power.

(c) India

The question of permissible limits of delg

became important in Independent India.

Just on the eve of independence,

Nath v. Province of Bihar 52 that there co uld be n o delegation of legislative

power in indian beyond “ conditional legislation”-a concept referred to

later. 53 This is a n extremely restrictive form of delegation. But then the

broader question was whether the Legislature in Independent India

should be restricted to this limited form of delegation, or should it be

given a greater f reedom to resort to this t echnique?

If the Legislature were to be permitted a greater freedom, then the next

question was; which of the two models- the British or the American

52 AIR 1949 FC 175.

53 See, Chapter 3 & 6.

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which differ from each other rather fndamentall

Indian?

The courts could hold either

much power as it liked following the B ritish model, or el se th at it, like t he

American congress, àcs could not give

and that it s hould State the l icies subject t o which the delegate is to

function in making legislation.

There are similarities and dissimilarities between the Indian

Constitution, on the ou e hand, and the Constitutions of Britain and the

U.S.A., on the other. India and ‘ftain both have parliamentary formof

Government in which the Executive is also a nart of the Legislature and

can be closely supervised by it. On the other hand, while dia has a

wanton constitution, Britain functions mostly under an unwritten

constriction. The British Parliament is S overeign. One of the h allmarks of

such sovereignty is the right to make or unmake any law which no court

or body or person can seethed or override. The Indian Parliament is a

creature of the C onstitution and its powers privileges and obligations a re

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specied and limited by the Constitution. 54 Also, while India, like the

U.S.A., has t he s ystem of judicial review of legislation, the s ame d oes not

prevail in Britain. This m eans that while t he courts in India can declare

law unconstitutional, such a power is not available to any court in

Britain.

But then, while in the U.S.A., the presidential form of Government is

based on the principle of separat

not follow that principle in the area of Executive-Legislative relationship.

The parliamentary form of Govern- mint is based

separation, but on that of co-operation, rather unison, of the two organs.

Because of these similarities and dissimilarities between the Indian,

British and the American Constitutions, it was open to the Supreme

Court in Independent India to follow either t he English or the American

model on the q uestion of delegation of legislative p ower.

Further, the constitution of India is neutral on this point as there is

nothing in the Indian Constitution either by way of expressly prohibiting,

or permitting the Legislature of delegate its legislative power to the

54 Rajaram Patel v. Hon ‘ble Speaker Lok Sabha, (2007) 3 5CC 184, para 72 0 : (2007)2 JT 1.

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Administration. Therefore, i

the Legislature in the matter of delegation, it had to be on the basis of

some gen eral theories a nd principles of constitutional law and not on the

basis of some henral theories d

on the basis of any specic provision in the constitution. The su preme

Court of India was faced with all these qu estions in the famous ca se of in

re Delhi laws Act. 55

(d) Delhi Laws Act Case

There were a few (Delhi being one of them) Part C Stat

direct administration of the Central Government, without having a

Legislature of their own, Delhi being one of these. Parliament had to

55 AIR 1951 SC 332, para 90 : 1951 SCR 747. Also see Mahmadhusen AbduirahirnKalota Shaikh v.Union ondia, (2009) 2 5CC 1, paras 34, 35 and 36 : (2009) 1 5CC(Cr1) 620; Rajaram Patel v.

Hon ‘ble Speaker Lok Sabha, (2007) 3 5CC 184, para 720; State of Rajasthan v.Basant Nahata,

(2005) 12 5CC 77, para 19 : AIR 2005 SC 3401; Raineshwar Prasad v. Union ondia,(2006) 2

SCC 1 , para 104, 105, 106, 1 17, 154, 196 and 201 : AIR 2006 SC 980; M.P. HighCourt Bar Association v. Union ondia, (2004) 1 1 5CC 766, para 38 : (2005) AIRSCW 3208; People’s Union for

Civil Liberties v. Union of India, (2004) 2 5CC 476, para 3 6, 37 and 39 : AIR 2004 SC1442; B.

Krishna Bhat v. State ofKarnataka, (2001) 4 5CC 227, para 5 : AIR 2001 SC 1885;Kiran Gupta v.

State of UP., (2000) 7 5CC 719, para 12.

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legislate for these S tates. As it was very d ifficult for Parliament to nd the

necessary time to do so in view of its other manifold en- agreements,

Parliament passed a law, the Part C States (Laws) Act, 1950. The Act

authorized the Central Government to extend to any Part C State, with

such restrictions and modicatiolis as it thought t , any enactment in

force in a Part A State. While doing so, the Government could repeal or

amend any corresponding law (other than a Central Law) which might be

operative at the time in the Part C State con cerned.

Undoubtedly, it was a very sweeping kind of delegation. The Government

c extend to a Part C State any law made by a State Legislature (and not

by Parliam at any time (not only

made su bsequently), even modify the law before extension. And if there

was already a law in force in concerned Part

could either be repeated or m odied by Government when the law was

being extended.

The Supreme Court was called upon to adjudge the val

minted provision. Seven Judges participated in the decision and seven

opinions v’ delivered exhibiting a cleavage of judicial views on the

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question of limits subject which the Legislature in India should be

permitted to delegate legislative p ower. ‘j on two points t here w as a unity

of outlook amongst all these op inions.

First, keeping the exigencies of the modern Government in view,

Parliament a well as State Legislatures in India need to delegate the

legislative power if they b e able to face t he m ultitudinous p roblems facing

the country, for it is neither p ractical nor feasible to expect t hat ea ch

legislative body could turn out a complete r com prehensive legislation on

all subjects so ught to be legislated upon.

Two, since the Legislatures derive their powers from the written

constitution which creates them, they could not be allowed the same

freedom as the British Parliament in the matter of delegation, and that

some limits sh ould be set on their capacity to delegate.

The Judges, however, differed on the question

permissi

ble limits within which the Indian Legislature could delegate

legislative power?

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One view propounded was that t he Indian Legislature cou ld delegate its

power t o any extent su bject t o the limit that it di d not efface itself, or

abdicate its powers, which meant that t he Legislature should never give

up its control over the delegate; that it must not destroy its own

legislative power; that i t m ust r etain in its hands the ultimate control

over the authority so as to be able to withdraw the delegation when- ever

the delegate d id something wrong or foolish.

The other view which approximated to the American approach, and

which in the- ory at l

that the Legislature should not d elegate its essential legislative function

which comprised the formulation of poliy

rule of conduct. That means that the Legislature should lay down

standards or policy in the delegating Act and the delegate may be left

with the power to execute the

By a majority, the Court laid down, in the instant case, that the

Legislature should not d elegate its essential legislative function which

comprises t he formulation of policy and enacting it into a binding rule of

conduct. The Supreme Courtropuiided the thesis in the instant case t hat

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the Legislature is the care Ctureorme Constitution, the constitution-

makers have placed their condence in the collective wisdom of the

Legislature, the constitution has chosen to vest l egislative power i n the

elected representatives of the people. It i s inevitable that t he Legislature

should itself discharge the essential legislative function, viz., the

Legislature should itself lay down standards or p olicy in the delegating

Act leaving the delegate with the power ake r

policy laid down by the Legislature. 56

The specic provision involved in te

majority of Judges su bject to two riders:

(1) that part of it was bad which authorised the Government to repeal a

law already in force i n a Part C State;

(2) the power to effect modications in a State law in its application to

a Part C State envisaged only such modications as d id not change

the u nderlying policy of the law sought to be extended.

56 Same proposition is r eiterated in later case. See Krishna Prakash Sharma v. Unionondia, (2001)5CC 212, para 18 : AIR 2001 SC 1493; State ofRajasthan v. BasantNahata, (2005) 12 5CC 77,

paras 19 and 20 : AIR 2005 SC 3401.

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The Delhi Laws Act case achieved two ends:

(1) it legitimized delegation of legislative power by the Legislature to

administrative organs;

(2) it imposed an outer limit on delegation by the Legislature. No

Indian Legislature can delegate unlimited legislative power t o the

Administration. If delegation is too broad, the cour

the sam e as excess ive and hence invalid.

The Court realized that, keeping the exigencies of the modern

Government in view, parliament as well as t he S tate Legislatures i n India

need to delegate the legislative power i f they are to be able to solve the

multitudinous problems facing the country, for it is neither p racticable

nor feasible t o expect that each legislative b ody co uld turn out a complete

and comprehensive legislation on all su bjects sought t o be legislated

upon. The Court was also agreed that s ince the various Legislatures in

India derive their powers from the written constitution which creates

them, they cou ld not enjoy the sam e freedom as t he British Parliament in

the matter o f delegation of legislative power, and that som e restriction

should be set on their cap acity to delegate. Hence, the majority on the

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Bench opted for t he American position that the Legislature itself must set

the ess ential policy, or lay down standards o r policy in the d elegating Act,

and the d elegate w ould then legislate t o further t he legislative p olicy. This

has come to be known as the Doctrine of Excessive Delegation of

Legislative P ower.

In Ramesh Birch V. Union of India, 57 a provision relating to Chandigarh

similar t o the one involved in the Delhi Laws Act case regarding Delhi.

has b een held valid.

5. DOCTRINE OF EXCESSIVE DELEGATION

In course of time, through a series of decisions, the Supreme Court has

conrmed the principle that t he Legislature can delegate its legislative

power su bject to its laying down the p olicy. The Legislature m ust declare

the policy of the law, lay down legal principles a nd provide st andards for

the guidance of the delegate to promulgate delegated legislation,

otherwise t he law will be bad on account of “excessive delegation”.

57 AIR 1990 SC 560 : 1989 Supp(1) 5CC 430; JAIN, CASES, I, 72.

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The Indian Legislature cannot delegate unrestraanal

unqualied legislative power on an administrative body. 58 The Legislature

can delegate legislative power su bject t o the condition of laying down

principles, standards and policy subject t o which the delegate, is to

exercise its d elegated legislative power. In case the Legislature f ails to do

so, the law made by it delegating, legislative power would be

invalid. 59 Delegation is valid only when it is conned to legislative policy

and guidelines. 60 It is equally well settled that a delegatee must exercise

its j urisdiction within the four co rners o f its d elegation. 61 ’

58 Humdard Dawakhana (Wakf) v. Union of India, AIR 1960 SC 554 : (1962) 2 SCR671; KishanPrakash Sharma v. Union ondia, (2001) 5 5CC 212 : AIR 2001 SC1493; Krishna Mohan (P)

Ltd. v. Municipal Corporation ofDelhi, (2003) 7 5CC 15 1 : AIR 2003 SC 2935; State ofRajasthan

V. Basant Nahata, (2005) 12 5CC 77.

59 State ofRajasthan v. Basant Nahata, (2005) 12 5CC 77, para 19 : AIR 2005 SC3401 ; M.P. High Court Bar Association v. Union ondia, (2004) 1 1 5CC 766, para 38 :

AIR 2005 SCW 3208; Un- ion ondia V. Azadi Bachao Andolan, (2004) 10 5CC 1, para69 : AIR 2004 SC 1107.

60 1K. Industries Ltd. v. Union ondia, (2007) 13 5CC 673, para 1 30, 131.

61 LIC ondia v. Retired LIC Officers Assn., (2008) 3 5CC 321, para 17 : AIR 2008 SC1485; Chair- man Indore Vikas Pradhikaran v. Pure Industrial Coke and ChemicalsLtd., (2007) 8 5CC 705, para 99 : AIR 2007 SC 2458.

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It has been held in Sitaram Vishambhar Dayal, 62 whether a power

delegated by the legislature to the exe cutive h as exc eeded the p ermissible

limits in a given case depends on its facts and circumstances. The

question does n ot admit of any general rule. It depends u pon the n ature

of power delegated and the purpose intended to be ach ieved.

In applying th e test of “excessive delegation”, apart from considering the

breadth of the discretion confe

legislation, the courts also examine the procedural safeguards contained

in the Act against misuse of power, as for exa mple, laying of the ruled

before the Legislature, Consultation with the interesffect

completely unlimited blanket power where there is neither any guidance

to the delegate, nor an y procedural safeguards a gainst i9roper exer cise o f

power by the d elegate, can be h eld invalid as exce ssive delegation. 63

62 Sitaram Vishambhar Dayal v. State of UP., AIR 1972 SC 1 168, para 7, p. 1 170 :(1972) 2 SCR141.

63 See Kishan Prakash Sharma v. Union ondia, (2001) 5 5CC 212, para 18 : AIR2001 SC 1493.

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A case in point is H.R. Banthia 64 S. 5(2)(b) of the Gold

(Control) Act, 1968 empowered the Gold Administrator, so far as it

appeared to him to be nec- essary or expedient for carrying out the

purposes of the Act, to regulate the manufacture, distribution, u se,

disposal, consumption, etc., of gold. The Supreme Court declared the

provision invalid because it was very wide and suffered from the vice of

“excessive delegation”. The Court al so took into consideration the fact

that u nder s. 1 14 of the Act, power of delegated legislation was also

conferred on the Central Government. But while the rules made by the

Government were required to be laid before each House of Parliament, 65

there was no such obligation in respect of the rules made by the

Administrator under s. 5(2)(b)e

subject to any procedural safeguard while that of the Government was,

and, thus, the power conferred on the former was even broader than that

conferred on the Government.

64 AIR 1970 SC 1453 (para 17, page 1464) : (1969) 2 5CC 166.

65 See, infra, Ch. 5, for 1aying’ procedure.

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The question sought to be settled in the Delhi Laws Act case and

subsequent cases was again re-opened in Gwalior Rayon 66 after a period

of twenty-four years since the doctrine was laid down in Delhi Laws Act

case. MATHEW, I., in his opinion argued that so long as Parliament

retains the power t o repeal the delegating provision, it does not ab dicate

its legislative function and, t herefore, there should be no objection to

delegation howsoever broad its ext ent.

MATHEW, J., argued that s ince the Legislature can repeal the st atutory

provision delegating power, there sh ould be no need to lay down policy or

standard in the st atute b ecause t hrough its repea l power, the Legislature

retains a n ultimate control over t he delegate; and the Legislature could

never be regarded as abdicating its legislative power. If accepted,

MATHEW, I. ‘5 view would have resulted in a complete emasculation of

the doctrine of excessive delegation, and there would remain no

semblance of restraint on the Legislature in the matter of delegation.

However, the majority of the J udges on the Bench did not agree with this

thesis of MATHEW, J. The m ajority reiterated the proposition that when a

66 Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660 : (1974) 4 5CC98.

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Legislature confers power on an authority to make subordinate

legislation, it must lay down policy, principle or standard for the

guidance of the au thority concerned.

This view of MATHEW, I., would have meant dilution of the doct

excessive delegation leaving no semblance of r çstraiit on the Legislature

to delegate a s m uch legislative power as it may like. The d angers inherent

in such an approach were pin- pointed by the majority thus: Suppose the

crime situation in the country deteriorates. Can Parliament pass a law

saying that henceforth criminal law enforced in the country would be

such as is framed by a designated officer? Although Parliament still has

the power to repeal the provision, yet can such a blanket delegation of

legislative p ower b e a ccepted?

MATHEW, J.’s thesis was full of pitfalls; in effect, it would have led to

uncontrolled delegation like th at in Britain, because no Legislature can

ever part w ith its power to repeal a law enacted by it. Besides after

delegating the power, Parliament cannot, in a practical sense, control its

exercise through its power of repealing the law enacted by it. To-day’ S

Legislature is too much under the control of t he Executive. In a

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parliamentary democracy, the Government of t he day having majority

support in the Leg- islature ca n persuade or p ressurize t he Legislature to

enact an y statute it desires. It is only a myth to suppose that the

Legislature can ever r epeal a law on its o wn initiative if the d elegate d oes

not use t he d elegated powers p roperly; all legislation is sponsored by the

Government; Parliament passes n o law without the initiative and con-

sent of t he Executive and it is highly improbable that t he Executive

would ever ask Parliament to repeal a provisin de

power to itself on the ground that it has misused that power as this

would amount to self-censure by the govement. 67

The majority led by KHANNA, J., refused to accept MATHEW J.’s thesis

and reiterated the doctrine of excessive delegation with persuasive

arguments. In his words:

“The rule against excessi ve delegation of the legislative authority ows

from and is a n ecessary p ostulate of he soverei gnty of the people”.

67 On the qu estion of inter-relationship between the Executive an d the Legislature,see, lAIN, JNDIAN CONSTITUTIONAL LAw, Chs. II, III, VI and VII (5th Edn. Reprint2006).

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KHANNA, J., pinpointed the dangers inherent in MATHEW, J.’s thesis.

Acceptance of this view would lead to start

crime situation in the country very much deteriorates. Can the

legislature p ass a law saying that h enceforth criminal law enacted in the

country would be such as is framed by a designated officer, can such a

blanket delegation of legislativ power be accepted although the

Legislature still keeps within its hands the ultimate control of repealing

the law in question if the designated officer does n ot use h is p ower in a

way approved the Legislature.

Form a practical view, the Legislature ca nnot exercise i ts p ower t o repeal

the delegating law. To-day’ s legislative is very m uch under the thumb of

the Executive. Legislature does not move against the Executive and no

Government is ever going to ask the Legislature to repeal a law because

power conferred thereunder has been misused by t he Executive.

From a practical point of view, the d octrine of excessive d elegation serves

a useful function. Some k ind of a safety valve is n ecessary in the context

of the functioning of modern parliamentary system in a developing

country. In spite of the inadequacy of the doctrine, it does provide to the

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courts with a judicial tool to control delegations beyond a legitimate

degree. In the absence of any such restrictions the Legislature may,

under the p ressure of the Executive, give a blank cheese t o the execu tive.

The doctrine of excessive del

some policies, principles and guidelines in the statutes to control the

delegate to some extent. The courts can use the doctrine to check

extreme instances of delegation. Statement of policies also enables the

courts later to apply the doctrine of ultra vires to the dele gated

legislation in a m ore meaningful manner.

KHANNA, I., explained the theoretical basis of the doctrine of excessive

delegation thus:

“ . . . Our con stitution makers h ave entrusted the power of legislation to

the repre sentatives of the people, so that the said power may be

exercised not only in the name of the people but also by the people

speaking through their representatives. The rule against excessive

delegation of the legislative authority ows from and is a necessary

postulate o f the so vereignty of the p eople. The ru le co ntemplates th at it is

not p ermissible to substitute in the matter o f legislative policy the views

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of the individual officers or other a uthorities, however, competent t hey

may be for t hat of the popular w ill as expressed by the representatives of

the p eople”.68

The Gwalior Rayon majority view has been approved by the Supreme

Court there a fter in a large m ember of cases. 69

As a result of these uncements,

should be regarded as very well established in India which means that

the Legislature cannot delegate uncanalised and uncontrolled power.

Thus, while delegating legis

legislative policy, standards or g uidelines for t he delegate to follow. The

Supreme Court has enunciated the doctrine of excessive delegation in

Kunjabmu 70 a s follows:

68 AIR 1974 SC 1660, 1667 : (1974) 4 5CC 98.

69 See, for instance, K.S.E. Board v. Indian Aluminum, AIR 1976 SC 1031, 1050 :(1976) 1 5CC 466; BR. Enterprises v. State of Uttar Pr adesh, AIR 1999 SC 1867, at1906 : (1999) 9 5CC 700; Agricultural Market Committee v. Shalimar Chemical WorksLtd., AIR 1997 SC 2502, 2507 : (1997) 5 5CC 5 16; Kishan Prakash Sharma v. Stateondia, AIR 2001 SC 1493, 1502 : (2001) 5 5CC 212.

70 Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350, 352 : (1980) 1SCC 340. See a lso, St. Johns Tea chers Trai ning Institute v. Regional Director, NationalCouncilfor Teacher Education, (2003) 3 5CC 321, para 10 & 12 : AIR 2003 SC 1533.

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The power to legislate car

delegation may amount to abdication. Delegation unlimited may invite

despotism Un- limited. So the theory has been evolved that the

Legislature c annot d elegate its essential legislative function. Legislate it

must, by laying down policy and principle and delegate it may to ll in

detail and carry out policy. . . . If guidance there is, wherever i t may be

found, the d elegation is va lid.”

The Supreme Court has stated in Mahe Beach Trading Co. v. Union

Territory of Pondicherry 71 that i f there is abdication of legislative power,

or t here i s excessive delegation, or i f there i s a total surrender o r t ransfer

by the Legislature of

not p ermissible. There i s, however, no abdication, surrender o f legislative

functions o r excessi ve d elegation so long a s t he Legislature h as ex pressed

its will on a particular subject m atter, indicated its policy and left i ts

effectuation to subordinate legislation, p rovided the Legislature has

retamed the co ntrol in its h and with reference t o it so that it can act as a

71 (1996) 3 5CC 741, para 13, p. 746.

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check or a standard and prevent or undo the mischief by subordinate

legislation when it chooses t o or thinks t. 72

The Court has stated in kunjabmu that guidance may be found

anywhere in the statute e.g. in the express provison empowering

delegation , on other provisions of the st atute the preamble the scheme

or even the very subject-matter of the statute. 73 At time the court seeks

to assess the policy underlying the Act not always within the Act itself

but even from factors external

72 (1995) Supp (1) 5CC 642, para 2 3, 24 & 26; Also see, Organon (India) Ltd. v.Collector of Excise,AIR 1994 SC 2489, p. 2505 : 1994 Supp(1) 5CC 53; AgriculturalMarket Committee v. Shalimar

Chemical Works Ltd., AIR 1997 SC 2502, p. 2507 : (1997) 5 5CC 516; BR. Enterprises v. State of

Uttar Prädesh, AIR 1999 SC 1867, p. 1910 : (1999) 9 5CC 700; Kishan PrakashSharma v. Union

ondia, AIR 2001 SC 1493, at 1502 : (2001) 5 5CC 212.

73 In Consumer Action Group v. State of Tamil Nadu, (2002) 7 5CC 425, at 439 : AIR2002 SC 3302, the Supreme Court discerned the policy underlying the Act from the“Preamble” and “Objects an dReasons” of the Act. See also, Ashok Lanka v. RishiDikshit, (2006) 9 5CC 90, para 36 : AIR 2006 SC 2382; Mahendra Babu RaoMahadik v. Subhash Krishna Kanitkar, (2005) 4 5CC 99, para 46:

AIR 2005 SC 1794.

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thus it is clear f rom the above that t he courts adopt a liberal stance in

the m atter of brining out the legislative p olicy and guidelines w ith a view

to uphold delegation of legislative power. But t here is a danger in this

approach. The process of liberal interpretation should not be carried so

far as to always trying to discover “ dormant and t” legislative p olicy and,

thus, su stain an arbitrary power conferred on the Exertive. If this

happens, the d octrine of “excessive delegation” will become effective 4 the

Legislature will be enabled to confer unlimited power of delegated

legislator . 74 Again following the principles laid down in Kunjabmu ‘s

case, the Supreme Gurt in St. John ‘s Teachers Trai ning Institute, 75 held

that question whether a perjurer legislation suffers from the vice of

excessive delegation has to be examined in the context of subject matter,

the scheme, the provisions of statute including its preamble and the

facts and circumstances in the background of which statute is en acted.

74 Kishan Prakash Sharma v. Union ondia, AIR 2001 SC 1493, at 1502 : (2001) 55CC 212.

75 St. John ‘5 Teachers Training Institute v. Regional Director, NCTE, (2003) 3 5CC321, para 1 2, p.332 : AIR 2003 SC 1533. See also, Novva Ads v. Secretary,Department ofMunicipal Administration and Water Supply, (2008) 8 5CC 42, para38 and 40 : AIR 2008 SC 2941 ; State of TN. v. P.

Krishnamurthy, (2006) 4 5CC 517, para 15, 16, 22 & 27 : AIR 2006 SC 1622.

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It was further h eld that there is a presumption in favor of the va lidity of

subordinate Jgislation and if it is open to two constructions, the one

which would make it valid has to be dopt

be read down to avoid its e

Under t he provisions of Central Educational institutions (Reservation in

admission) Act, 2006 power was delegated to the Union Government to

determine as to who shall be the other Backward Class. The challenge

was made to the Act on the ground that it suffers from the vice of

excessive delegation. Repelling the challenge the Supreme Court held

that t here a re sufficient guidelines to determine the backward class and

such delegation is constitutionally valid. 76

Section 73 of the Stamp Act, 1899, as amended by A.P. Act 17 of 1986,

empowered any person authorized in writing by the Collector to have

access to documents in private cu stody or cu stody of a public officer and

to impound the same. It was h eld that section 73 as am ended by A.P. Act

17 of 1986 suffered from the vice of excessive delegation as there a re n ot

guidelines as t o the persons who may be au thorized by the Collector an d

76 Ashoka Kumar Thakur v. Union ondia, (2008) 6 5CC 1, para 212 and 230.

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there is n ot requirement of reasons b eing recorded by Collector or p erson

authorized for h is belief necessitating search and power of impounded

can be exer cised without notice.77

Thus, whenever a statute is challenged on the ground of excessive

delegation, it becomes n ecessary f or t he cou rt to examine the st atute a nd

discern policy or guide lines for the exercise of power of delegated

legislation.

In a large number of cases t he courts have considered the validity of

various dele gating provisi

delegation. Some of these cases are noted below. The cases have been

classied from the point of view of the nature of the power con ferred

under the following broad heads:

(i) skeleton legislation;

(ii) power of inclusion and exclusion;

(iii) power of modication of the st atute; and

(iv) removal of difficulties; (v) power t o impose t ax.

77 District Registrar an d Collector v. Canara B ank, (2005) 1 5CC 496, paras 5 4, 55 : AIR 2005 SC186.

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These categories are not mutually exclusive and have been adopted

because of their most common occurrence and for the sake of

convenience t o facilitate analysis of cases. They a re governed by the sa me

overall principle of “excessive delegation”.

The truth, however, remains that, in practice, difficult

applying the doctrine of excessive delegation to concrete situations and

by and large the judicial cy

legislation. It is only rarely that su ch, a power m ay be struck down on

the ground of “excessive delegation”. This will be- com e clear f rom the

following discussion.

. (a) Skeleton Legislation

In Bagla v. State ofMadhya Pradesh, 78 the following two sections of the

Essential Supplies (Temporary P owers) Act, 1946, were qu estioned on the

ground of excessive d elegation:

S. 3(1)—”The Central Government, so far as it appears to it to be

necessary or expedient for maintaining or increasing supplies of any

78 AIR 1954 SC 465 : (1955) 1 SCR 380. See also, Bhandara District Central Co-operative Bank Ltd.v. State ofMaharashtra, (1993) Supp 3 5CC 259, Para 7 : AIR1993 SC 59.

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essential commodity, or for securing their equitable distribution and

availability at fair prices, m ay by order pro- vide for regulating or

prohibiting the p roduction, supply . . .“; and

S. 6—”Any order made under section 3 shall have effect notwithstanding

anything inconsistent therewith contained in any enactment other than

this Act.”

S. 3 is a n excellent illustration of a provision empowering th e ex ecutive t o

promulgate delegated legislation not only to ll in the details in the

statute but even to decide questions of policy. A whole edice of vast

administrative control over essential commodities has been built up by

the E xecutive t hrough administrative legislation under 5. 3.

The Supreme Court declared both the sections val

had sufficiently formulated the legislative policy, “maintaining or

increasing su pplies et c.”, in S. 3, and gave a clear a nd sufficient guidance

to the Government to exercise its p ower under the Section.

Justifying the broad delegat

character of the Act is such that the details of that policy can only be

worked out by delegating them to a subordinate authoritwi

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framework of that policy.” 79 The effect of S. 6, the Court explained, was

certainly not to repeal or a brogate any pre-existing law. Its object w as

simply to by-pass the law where it was inconsistent with the p rovisions of

the Act in question and the orders m ade u nder it.

The Couft argued further that even if

argument, that an existing law stood repealed to the extent of i ts

repugnancy with the order made under S. 3, by implication, then the

repeal “is not b y an act of the delegate,” but is by the “legislative act of

the Parliament itself,” as Parliament itself has declared in S. 6 that an

order made under section 3 “shall have effect notwithstanding any

inconsistency in this ord er with any enactment other than this Act.” 80 In

this way, the Supreme Court upheld a very broad delegation of power.

79 AIR 1954 SC 465 at 468 : (1955) 1 SCR 380; See also, C. Lingam v. Govt. ondia, AIR 1971 SC474, para 7 : (1970) 3 5CC 768. See also, Agricul

Committee v. Shalimar Chemical Works Ltd., (1997) 5 5CC 516, para 24 & 26 : AIR1997 SC 2502.

80 AIR 1954 SC 465 at 469 : (1955) 1 SCR 380.Similarly in A. V. Nachane v. Unionondia, AIR 1982 SC 1126 : (1982) 1 5CC 205, the Supreme Court upheld astatutory p rovision in the L.I.C. Act, 1956 which provided that the ru les m adeunder the Act shall have effect notwithstanding an ything in the Industrial Disputes

Act or any other law.

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There are a large number of other cases

approach. In Jjhatnagars & Co. v. Union of India, 81 was involved S. 3(l)(a)

of the Imports and Exports (Control) Act, 1947 authorizing the Central

Government to prohibit or restrict the import or exp ort of goods of any

specied description by order. The statute is skeletal an d gives no

indication as to what considerations and policies are to be kept in view

by the Government in controlling imports and exports. The whole

regulatory process over import and export of goods h as been developed

by the Administration through delegated

provision. The Supreme Court upheld the statute as valid arguing that

the underlying policy was to be found in the preceding statute, the

Defense of India Act, 1939, whose provisions the statute i question

purported to continue.

It is, however, not clear a s to how this rel ation between the old and the

new Acts was established by the Court. The only reference made to the

old provision by the Act in question was in S. 4 under which all orders

81 AIR 1957 SC 478, p. 485 : 1957 SCR 701. See also, Kashmir Singh v. Unionondia, (2008) 7 SCC 259; M.P. State Electricity Board v. Union of India, (2006) 105CC 736, para 5 9; Quarry Owner’s Association v. State ofBihar, (2000) 8 5CC 655,para 36, 38 & 42 : AIR 2000 SC 2870.

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made under Rule 84 of the Defense of India Rules, 1939 were to continue

in force so far as n ot inconsistent with the Act. It may also be n oted that

the Defense of India Act was an emergency law and dealt not only with

imports and exports but also with a whole range of matters which

became relevant during the war emergency.

Further, the D efense of India Act w as i tself a skeletal piece o f legislation.

The whole complexion of import and export control has changed in

Independent India and differs very much in details and fundamental

approach from what it was in the 1940’ 5. The con trol policies in the area

of import and export are developed by the Executive from time to time

and for this purpose the Act in question lays down no guidelines.

However, in support of the Court’s decision it may be said that the

subject of import and export control is so variable in the modern world

that p erhaps it is not possible for Parliament to lay down articulate

norms which could be valid for all time to come an d, thus, broad powers

have t o be left in this a rea to the ex ecutive.

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In Makhan Singh v. State of Punjab, 82 the Supreme Court upheld,

against the attack of excessive delegation, S. 3 of the Defense of India

Act, 1962. S. 3 empowered the Central Government to make rules

“appeal expedient” to it, for D efense of India and maintenance of public

order an d safety.

The All India Services Act, 1951 is an exe

sections of which the key provision is S . 3 which authorises t he Central

Government to make rules to regulate conditions of service in the All

India Services. Pending the m aking of the ru les u nder t he Act, the ru les

existing on the date the law was enacted, were to be deemed to be the

rules made under the Act.

Undoubtedly, this was an extremely wide delegation, as the Parliament

had left the matter in the hands of the Government in its entirety

without laying down any policy. Yet the Supreme Court held the Act

valid, arguing strangely

by the Act showed that the poliy

82 AIR 1964 SC 381, p. 400 : (1964) 4 5CC 797.

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contained the p olicy. 83 This m eans t hat the policy of the st atute is found

in the rules made by the Executive. But such an argument is hardly

tenable. It does n ot seem to be co rrect to control the d iscretion conferred

under the Act through the rules made under a prior Act as the rules

could be changed at an y time. Further, to treat t he existing rules as

laying down the policy could result in the further ar gument that t hese

rules could not ever be changed by the rule-making authority because

changing the rules would be tantamount to changing the policy approved

by the Legislature, and i

restricting the ru le-making power. It could certainly not be the intention

of the L egislature t o fossilize or st ratify the existing rules once for a ll. 84

(b) Power of Exclusion and Inclusion

A common legislative practice is

bring mdi- viduals, bodies or commodities within

83 Garewal v. State ofPunjab, AIR 1959 SC 512, p. 517 : 1959 Supp(1) 5CR 792.

84 A few other cases on the point are: Izhar Ahmad v. Union ondia, AIR 1962 SC1052, p. 10671962 Supp(3) 5CC 235; Vasanlal Maganbhai v. Bombay, AIR 1961 SC4 : (1961) 1 SCR 341; Raghubar Dayal v. Union ondia, AIR 1962 SC 263 : (1962) 3SCR 547; State ofNagaland v.

Ratan Singh, AIR 1967 SC 212 : (1966) 3 SCR 830.

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from, the purview of a statute. Several formulae are in vogue for the

purpose. 85

A usual legislative formula i

mentioned in the schçdule annexed but Government has power to alter

the schedule by a dding thereto or r emoving therefrom some items. Thus,

the range of operation of the Act can be expanded or reduced by making

alterations in the sch edule t hrough delegated legislation. To some ex tent,

this provision involves d elegation of power t o modify the parent Act, but

invariably su ch a p rovision has b een upheld as va lid.

The Minimum Wages Act, 1948 has been enacted, as stated in its

preamble, “to provide for xing minimum wages in certain employments”.

The Act applies to employments mentioned in the schedule, but

Government is given power to add any other employment thereto and,

thus, to extend the Act to that employment.

The Act lays down no norms on which Government may exercise its

power to add any employment to the schedule. Nevertheless, in Edward

85 Ashoka Kumar Thakur v. Union ondia, (2008) 6 5CC 1, para 170, 295, 357 & 358;Lohia Ma- chines Ltd. v. Union ondia, (1985) 2 5CC 197, para 26 : AIR 1985 SC 421.

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Mills Co. v. State of Ajmer, 86 the Supreme Court upheld the provision

arguing that the policy was a pparent on the face of the Act which was t o

x minimum wages in order to avoid exploitation of labour in those

industries where wages were very low because of unorganized labour or

other causes.

(c) power to Amend Schedule the

In a number of cases, the power to amend the schedule has been upheld

because the policy to give guidance

from the Act. 87 It i s not u nconstitutional for t he legislature t o leave it t o

the executive to determine details relating to the working of taxation

laws, such as sel ection of persons on whom tax is to be laid, the rates a t

which it is to be chargd 88 goods

86 AIR 1955 SC 25 : (1955) 1 SCR 735.

87 Banarsj Das v. State of Madhya Pradesh, AIR 1958 SC 909, para 1 1 : 1959 SCR427; Sable Waghire & Co. v. Union ondia, AIR 1975 SC 1172, para 17 : (1975) 15CC 763; State of MadhyaPradesh v. Mahalaxmi Fabric Mills Ltd., AIR 1995 SC

2213 : 1995 Supp(1) 5CC 642. See also, J.K. Industries Ltd. v. Union ondia, (2007)13 5CC 673, para 130 131.

88 Banarasidas Bhanot v. State ofMadhya Pradesh, AIR 1958 SC 909 : 1959 SCR 427,see al so, Kishanlal v. State ofRajasthan, 1990 (Suppi) 5CC 42 para 4 : AIR 1990 SC2269.

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and the like. It was h eld in Banaras a s Bhanot 89 that power conferred on

the Section state Government by Section 6(2) of the C.P. and Berar S ales

Tax Act, 1947 to amend the schedule relating to exemption is in

consonance with the accepted legislate t ive p ractice relating to the topic

and is n ot unconstitutional.

The Punjab General Sales Tax Act, 1948 levied

except the ns mentioned in the schedule annexed. The State Government

could add to, or * lete, any item from the schedule after giving three

months’ notice. This meant that 11 the Government added an item to the

schedule, it became tax exempt; if any item S excluded from the

schedule, it became subject to taxation. The Supreme Courted the

provision against challenge on the basis of excessive delegation on two

grounds:

(I) it is com mon to give to the Executive the power to amend schedules

and such power has been upheld in a number of cases;

(2) changes in the schedule could be made after giving three months’

notice. This was