Delegated legisltion
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FACULTY OF LAW JAMIA MILLIA ISLAMIA
Administrative Law
Delegated Legislation and Causes of Its
Growth
Submitted By:-
ANILESH TEWARIB.A.LL.B(Hons)
3 rd Year/6 th Semester
ACKNOWLEDGEMENT
I would like to thank my teacher Dr Mohammad Asad Malik for being a great teacher and for giving me support and guidance regarding this assignment. . I would also like to thank my friends and peers for their encouragement throughout the making of this assignment.
Anilesh Tewari
INTRODUCTION
It is well known that not all legislation is made by Parliament itself. Traditionally, legislation is
divided between primary legislation enacted by Parliament, and delegated legislation
promulgated by the executive. While primary legislation sets out matters of policy and
substance, the implementation and detail is delegated to the executive. It is the detail and
implementation of the primary legislation that impacts on daily lives. The cost of a driver’s
licence, the daily limit for taking of shellfish, and what substances can safely be included in your
breakfast cereal are all the subject of delegated legislation rather than Acts of Parliament.
DELEGATED LEGISLATION
Delegated legislation (also referred to as secondary legislation or subordinate legislation) is law
made by an executive authority under powers given to them by primary legislation in order to
implement and administer the requirements of that primary legislation. It is law made by a
person or body other than the legislature but with the legislature's authority. Delegated
legislation means permitting bodies beneath parliament to pass their own legislation.
DELEGATED LEGISLATION AND EXECUTIVE LEGISLATION
Delegated legislation is not to be confused with the executive legislation. The former stands for
the laws made by the authorities other than the legislature to whom the legislature delegates its
legislative power. The latter stands for the laws made by the President and the governer
respectively under article 123 and 213 of the constitution. These laws are in the form of
ordinances which have the force of law. Such ordinances are issued by the respective executive
heads and they are required to be ratified by the respective legislature, namely, the parliament
and the state legislature, as the case maybe, after they meet .such an ordinance ceases to have
effect if it is not ratified within six weeks after the assembly of legislature .the source of
delegated legislation is always an act of legislature whereas the source of the executive
legislation is a constitutional provision.
DELEGATION OF POWERS
Meaning
Delegation of powers means those powers, which are given by the higher authorities to the lower
authorities to make certain laws, i.e., powers given by the legislature to administration to enact
laws to perform administration functions. The law legislate by the administration with the
powers given by the legislature is called delegated legislation. Or we can say that when an
instrument of a legislative nature is made by an authority in exercise of power delegated or
conferred by the legislature is called subordinate legislation or delegated legislation. Delegated
legislation, also referred to as secondary legislation, is legislation made by a person or body
other than Parliament. Parliament, through an Act of Parliament, can permit another person or
body to make legislation. An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit
others to make law and rules through delegated legislation. The legislation created by delegated
legislation must be made in accordance with the purposes laid down in the Act. The function of
delegated legislation is it allows the Government to amend a law without having to wait for a
new Act of Parliament to be passed. Further, delegated legislation can be used to make technical
changes to the law, such as altering sanctions under a given statute. Also, by way of an example,
a Local Authority have power given to them under certain statutes to allow them to make
delegated legislation and to make law which suits their area. Delegated legislation provides a
very important role in the making of law as there is more delegated legislation enacted each year
than there are Acts of Parliament. In addition, delegated legislation has the same legal standing
as the Act of Parliament from which it was created. Doctrinal of permissible limits Doctrine of
permissible limit basically talks about the powers of a legislature which can be delegated to the
Administrative authorities a legislation cannot delegate all its powers. The legislature has some
limited powers which can be delegated.
Those powers are as follows: Powers which can be delegated:
Commencement
Several statues contain an 'appointed day' clause, which empowers the government to appoint a
day for the act to come into force. In such cases, the operation of the act depends on the decision
of the government e.g. section 3 of the Bombay Rents, hotel and Lodging house rates control act,
1947 provides that the act shall come into operation on such date as the state Government may
by notification in the official gazette appoint in this behalf. Here the act comes into force when
the notification is published in the official gazette. Such a provision is valid for, as Sir Cecil Carr
remarks, "the legislature provides the gun and prescribes the target, but leaves to the executive
the take of pressing the trigger".
Supplying details:
If the legislative policy is formulated by the legislature, the function of supplying details may be
delegated to the executive for giving effect to the policy. What is delegated here is an ancillary
function in aid of the exercise of the legislative function e.g. section 3 of All India Service Act,
1951 authorizes the central government to make rules to regulate conditions of service n All
India Services
Modifications:
Sometimes, provisions are made in the statute authorizing the executive to modify the existing
statute before application. This is really a drastic power as it amounts to an amendment of the
act, which is a legislative act, but sometimes, this flexibility is necessary to deal with the local
conditions. Thus, under the power 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 than
Rs. 500 but that limitation was removed by the government.
Prescribing punishments:
In some cases the legislature delegates to the executive the power to take punitive action e.g.,
under section 37 of the electricity act,1910, the electricity board is empowered to prescribe
punishment for breach of the provision of the act subject to the maximum punishment laid down
in the act. By section 59(7) of the Damodar Valley Act, 1948, the power to prescribe punishment
is delegated to a statutory authority without any maximum limit fixed by the parent act.
According to the Indian Law Institute, this practice is not objectionable, provided two safeguards
are adopted: 1) The legislation must determine the maximum punishment which the rule making
authority may prescribe for breach of regulations; and 2) If such power is delegated to any
authority other than the state or central government, the exercise of the power must be subject to
the previous sanction or subsequent approval of the state or central government. Framing of
rules: A delegation of power to frame rules, bye laws, regulations, etc. is not unconstitutional,
provided that the rules, bye laws and regulations are required to be laid before the legislature
before they come into force and provide further that the legislature has power to amend, modify
or repeal them. Removal of difficulties (Henery VIII clause): Power is sometime conferred on
the government to modify the provisions of the existing statutes for the purpose of removing
difficulties. When the legislature passes an act, it cannot foresee all he difficulties which may
arise in implementing it. The executive is, therefore, empowered to make necessary changes to
remove such difficulties. Such provision is also necessary when the legislature extends a law to a
new area or to an area where the socioeconomic condition are different. Generally, two types of
"removal of difficulties" clauses are found in statutes. A narrow one, which empowers the
executive to exercise the power of removal of difficulties consistent with the provisions of the
parent act; e.g. section 128 of the States Reorganization Act, 1956 reads 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 provision which appears to him to be necessary or expedient
for the purpose of removing the difficulty". Such a provision is not objectionable. By exercising
this power the government cannot modify the parent act nor can it make any modifications which
are not consistent with the parent act. Another type of "a removal of difficulties' clause is very
wide and authorizes the executive in the name of removal of difficulties to modify even the
parent act or any other act. The classic illustration of such a provision is found on the
constitution itself. Usually, such a provision is for a limited period. This provision has been
vehemently criticized by Lord Hewart and other jurists. It is nicknamed as the Henery VIII
clause to indicate executive autocracy. Henery VIII was the king of England in the 16th century
and during his regime he enforced his will and got his difficulties removed by using
instrumentality of a service parliament for the purpose of removing the difficulties that came in
his way. According to the committees of minister' powers, the king is regarded popularly as the
impersonation of executive autocracy and such a clause 'cannot but be regarded as inconsistent
wih the principle of parliamentary government'. In Jalan Trading company v. Mill Majdur Sabha
the supreme court was called upon to decide the legality of such a clause. Section 37 (1) of the
payment of Bonus Act 1965 empowered the central government to make such orders, not
inconsistent with the purpose of the act, is might be necessary or expedient for the removal of
any doubts or difficulties. Section 37 (2) made the order passed by the central government under
sub section (1) final. The court by a majority of 3:2 held section 37 ultra vires on the ground of
excessive delegation in as much as the government was made the sole judge of whether any
difficulty or doubt had arisen, whether it was necessary to remove such doubt or difficulties and
whether the order made was consistent with the provisions of the act. Again, the order passed by
the central government was 'final'. Thus, in substance, legislative power was delegated to
executive authority, which was not permissible.
The minority, however, took a liberal view and held that the functions to be exercised by the
central government was not legislative functions at all but were intended to advance the purpose
which the legislature had in mind. In the words of Hidautllah, J. (as he then was): "parliament
has not attempted to set up legislation. I have stated all that it wished the subject of bonus in the
act. Apprehending, however, that in the application of the new act doubts and difficulty might
arrive and not leaving there solutions to the court with the attendant delays and expense,
parliament have chosen to give power to the central government to remove doubt and difference
by a suitable order." It is submitted that the minority view is correct and after Jalan trading
company, the Supreme Court adopted the liberal approach. In Gammon India Ltd. V. Union of
India a similar provision was held constitutional by the court. Distinguishing Jalan Trading
Company, the court observed: "in the present case, neither finality nor alteration is contemplated
in any order under section 34 of the act. Section 34 is for giving effect to the provisions of the
act. This provision is an application of the internal functioning of the administrative machinery."
It, therefore, becomes clear that after Jalan Trading Company, the court changed its view and
virtually overruled the majority judgment. In Patna University v. Amita Tiwari, the relevant
statute enabled the chancellor to issue the directions to universities "in the administrative and
academic interest." In exercise of that power, the chancellor directed the university to regularize
services of an ineligible teacher "on compassionate grounds." When the action was challenged, it
was sought to be supported on the basis of "removal difficulties" clause. Holding that the
"removal of difficulties" clause had only limited application, the Supreme Court quashed the
order. It is submitted that by using a 'removal of difficulties' clause, the government "may
slightly tinker with the act to round off angularities and smoothen the joint or remove minor
obscurities o make it workable, but it cannot change or disfigure the basic structure of the act. In
no case can it under the guise of removing a difficulty, change the scheme and essential
provision of the act" the committee on ministers' powers rightly opined that it would be
dangerous in practice to permit the executive to change an act of parliament and made the
following recommendations: "the use of the so called Henery VIII clause conferring power on a
minister to modify the power of on a minister to modify the provision of acts of parliament
should be abounded 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. Henery VIII clause
should never be used except for the sole purpose of bringing the act into operation but subject to
the limitation of one year." Conclusion: - Delegated legislation permits the body beneath
parliament to pass their own legislature. Delegated legislation is the legislation made by person
or bodies other than parliament. That person or body must be permitted by the parliament by an
Act passed by the parliament. An Act of Parliament creates the framework of a particular law
and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament. Further, delegated legislation can be used to make technical changes to the law, such
as altering sanctions under a given statute. Also, by way of an example, a Local Authority have
power given to them under certain statutes to allow them to make delegated legislation and to
make law which suits their area. Delegated legislation provides a very important role in the
making of law as there is more delegated legislation enacted each year than there are Acts of
Parliament.
MERITS OF DELEGATED LEGISLATION
In modern time there has been an enormous increase in delegated legislation. The circumstances
favouring delegated legislation are as follows:
Pressure of work parliament is a very busy body.it is overburdened with the legislative work.
Within the short span of its life it has to pass a no of legislation and has to take up such intensive
legislative work that it can hardly enact the provision of law in details. If it devotes its time in
laying down minor and subsidiary detail of every legislation by making all the rules required
under it, whole of its time would be consumed in dealing with a few acts only and it would not
be able to cope with the growing needs of legislation. Thus the pressure of work prevents the
legislature to provide all the required details in an act and compels it to delegate its legislative
powers in a limited sense.
Technicality of subject-matter
The legislature has to pass so many laws in modern times, where their contents are technical in
nature .The legislators not being experts or technician, cannot work out details of such laws. The
legislators at the best, could lay down the policy or the principles leaving the details to be filled
up by the executive which is competent to do so by making the rules of technical nature.
To meet unforeseen contingencies
The need of amplifying the main provision of social legislation to meet unforeseen contingencies
or to facilitate adjustment to new circumstances arises all too frequently, for which the
Parliamentary process involves delay, but delegated legislation offers rapid machinery for
amendment.
Expediency and flexibility
In some cases, such as changes in rationing scheme or imposition of import duty or control of
exchange, public interest requires that the provisions of law should not be made public until the
time fixed for its enforcement becomes ripe. Delegated legislation is the only means to achieve
this objective. Moreover, in the case of delegated legislation changes take place more
conveniently without delay, which is not possible in the case of legislation by the parliament.
To meet emergency
In case of emergency which may often arise on account of war, floods, epidemics, economic
depression and the like, the Executive must be armed with the rule-making power so that the
remedial action may be taken immediately. In a modern state there are many occasions when
sudden need of legislative action is felt. To meet such needs delegated legislation is the only
convenient or even possible remedy.
DEMERITS OF DELEGATED LEGISLATION
It has been suggested that by having delegated legislation to make and amend laws.
It lacks democracy as too much delegated legislation is made by unelected people.
Delegated legislation is subject to less Parliamentary scrutiny than primary legislation.
Parliament therefore has a lack of control over delegated legislation and this can lead to
inconsistencies in laws. Delegated legislation therefore has the potential to be used in
ways which Parliament had not anticipated when it conferred the power through the Act
of Parliament.
Delegated legislation is the lack of publicity surrounding it. When law is made by
statutory instrument the public are not normally notified of it whereas with Acts of
Parliament, on the other hand, they are widely publicized.
One reason for the lack of publicity surrounding delegated legislation is because of the volume
of delegated legislation made and this result in the public not being informed of the changes to
law. There has also been concern expressed that too much law is made through delegated
legislation.
NECESSITY OF 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 then 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. Jacqueline Martin has suggested instead for parliament to debate the main
principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of
it. Another argument for the need of delegated legislation is that parliament may not always be
the best institution to recognize and deal with the needs of local people. As a result local people
elect councilors from certain districts and it is their responsibility to pass legislation in the form
of by-laws to satisfy local needs.
Article 245 and Necessity of Delegation
The necessity of the legislature's delegating its powers in favour of the executive is a part of
legislative function. It is a constituent element of the legislative power as a whole under Article
245 of the Constitution. Such delegation of power, however, cannot be wide, uncanalised or
unguided. Article 245 of Constitution of India Article 245 {Extent of laws made by Parliament
and by the Legislatures of States} Subject to the provisions of this Constitution, Parliament may
make laws for the whole or any part of the territory of India, and the Legislature of a State may
make laws for the whole or any part of the State. No law made by Parliament shall be deemed to
be invalid on the ground that it would have extra-territorial operation. Legislature to lay down
Guidelines for exercising Delegation. The legislature while delegating such power is required to
lay down the criteria or standard so as to enable the delegatee to act within the framework of the
statute. The principle on which the power of the legislature is to be exercised is required to be
disclosed. It is also trite that essential legislative functions cannot be delegated. The procedural
powers are, therefore, normally left to be exercised by the executive by reason of a delegated
legislation. Delegation to be Reasonable and Not Unlimited In Re: Delhi Laws Act (supra) this
Court in no unmistakable terms stated that the legislature may utilize any outside agency to the
extent it finds necessary for doing things which it is unable to do itself or finds inconvenient to
do which would mean such things which are ancillary to the main enactment and necessary for
the full and effective exercise of its power of legislation. Justice Mukherjii, in his opinion, stated:
"It cannot be said that an unlimited right of delegation is inherent in the legislative power itself.
This is not warranted by the provisions of the Constitution and the legitimacy of delegation
depends entirely upon its being used as an ancillary measure which the legislature considers to
be necessary for the purpose of exercising its legislative powers effectively and completely. The
legislature must retain in its own hands the essential legislative functions which consist in
declaring the legislative policy and laying down the standard which is to be enacted into a rule of
law, and what can be delegated is the task of subordinate legislation which by its very nature is
ancillary to the statute which delegates the power to make it. Provided the legislative policy is
enunciated with sufficient clearness or a standard laid down the Courts cannot and should not
interfere with the discretion that undoubtedly rests with the legislature itself in determining the
extent of delegation necessary in a particular case."
DELEGATE NOT TO MODIFY THE BASIC LEGISLATION
As regard delegated power to "restrict and modify", it was held: "delegation cannot extend to the
altering in essential particulars of laws which are already in force in the area in question." "The
power to 'restrict and modify does not import the power to make essential changes. It is confined
to alterations of a minor character such as are necessary to make an Act intended for one area
applicable to another and to bring it into harmony with laws already in being in the State, or to
delete portions which are meant solely for another area. To alter essential character of an Act or
to change it in material particulars is to legislate, and that, namely the power to legislature, all
authorities are agreed, cannot be delegated by a Legislature which is not unfettered." Vivian
Bose, J., however, speaking for a Constitution Bench of this Court in Rajnarain Singh vs. The
Chairman, Patna Administration Committee, Patna and Another, analysed the opinions of
different learned Judges in Re: Delhi Laws Act (supra) and culled out the majority view thus:
"..That an executive authority can be authorized to modify either existing or future laws but not
in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in
general terms, and there was some divergence of view about this in the former case, but this
much is clear from the opinions set out above: it cannot include a change of policy." Krishna
Mohan (P) Ltd. vs. Municipal Corporation of Delhi and Others. This Court held that vague or
uncanalised or unguided power would render the delegation bad in law. The legal position has
been explained by a Constitution Bench of this Court in Kishan Prakash Sharma and Others vs.
Union of India and Others holding : Uncanalised and Uncontrollable Power not permissible
under delegation "...The legislatures in India have been held to possess wide power of legislation
subject, however, to certain limitations such as the legislature cannot delegate essential
legislative functions which consist in the determination or choosing of the legislative policy and
of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate
uncanalised and uncontrolled power. The legislature must set the limits of the power delegated
by declaring the policy of the law and by laying down standards for guidance of those on whom
the power to execute the law is conferred. Thus the delegation is valid only when the legislative
policy and guidelines to implement it are adequately laid down and the delegate is only
empowered to carry out the policy within the guidelines laid down by the legislature. The
legislature may, after laying down the legislative policy, confer discretion on an administrative
agency as to the execution of the policy and leave it to the agency to work out the details within
the framework of the policy. When the Constitution entrusts the duty of lawmaking to Parliament
and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the
shoulders of some other authority." [See also Ajoy Kumar Banerjee and Others etc. vs. Union of
India & Others, Agricultural Market Committee vs. Shalimar Chemical Works Ltd., State Of
Rajasthan & Ors V. Basant Nahata. One cannot interpret the proviso in such a way as to defeat
its purpose. There cannot be any doubt whatsoever that the court shall not invalidate a legislation
on the ground of delegation of essential legislative function or on the ground of conferring
unguided, uncontrolled and vague powers upon the delegate without taking into account the
preamble of the Act as also other provisions of the statute in the event they provide good means
of finding out the meaning of the offending statute. This aspect of the matter has been considered
in some details in People Union for Civil Liberties and Another vs. Union of India and Others
and Andhra Bank vs. B. Satyanarayana and Others, in which one of us was a member. But
preamble and statement of object and reason can only be looked into when there is vagueness or
ambiguity present in the language of the Act as in Arnit Das vs. State of Bihar wherein this Court
has held: "22. All this exercise would have been avoided if only the legislature would have taken
care not to leave an ambiguity in the definition of "juvenile" and would have clearly specified the
point of time by reference to which the age was to be determined to find a person to be a
juvenile. The ambiguity can be resolved by taking into consideration the Preamble and the
Statement of Objects and Reasons. The Preamble suggests what the Act was intended to deal
with. If the language used by Parliament is ambiguous the court is permitted to look into the
Preamble for construing the provisions of an Act (Burrakur Coal Co. Ltd. v. Union of India). A
Preamble of a statute has been said to be a good means of finding out its meaning and, as it were,
the key of understanding of it, said this Court in A. Thangal Kunju Musaliar v. M.
Venkatachalam Potti. The Preamble is a key to unlock the legislative intent. If the words
employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret
the enactment as to harmonise it with the object which the legislature had in its view." So it is
only when the language is itself capable of more than one meaning, then the preamble or the
statement of objects and reasons can be looked into and not when something is not capable of
given a precise meaning as in case of 'Public policy'. Even if the Statement of Objects and
Reasons is looked into to ascertain its meaning then also there is nothing therein which can be
said to be related to morality or public policy. We have, furthermore, not been shown as to how
the preamble or any other provisions of the Act would provide for any guideline in construing
Section 22-A of the Act. The principal contention raised on behalf of the counsel for the
Appellants, as noticed hereinbefore, is that the terminology 'opposed to public policy' itself
provide for such guidelines. Scope of Delegation to meet the purpose of statute. The scope and
ambit of such delegated authority must be so construed, if possible, as not to make it bad because
of the vice of excessive delegation of legislative power. In order to make the power valid, Act
should be so construed in such manner that it does not suffer from the vice of delegation of
excessive legislative authority. Ajoy Kumar Banerjee Vs.Union of India 1984 Air 1130;
Unlimited right of delegation is not inherent in the legislative power.
Gwalior Rayon Silk Mfg. (Wvg.) v. The Asst.Comm. Sales Tax & Ors.
It was only in the fitness of things that the State Legislature should have left the wide preventive
powers under the sections to the discretion of the State Government, charged with the
maintenance of law and order, or to its delegate, to be exercised on their subjective satisfaction.
Dr. N. B. Khare v. The State of Delhi, (1950). But such discretion was by no means unfettered
and uncontrolled. Where there was any abuse of such powers, therefore, what could be struck
down was the abuse itself but not the statute. [Dwaraka Prasad Laxmi Nayain v. The State of
Uttar Pradesh, held inapplicable. Harishankar Bagla v. The State of Madhya Pradesh, relied
on.as quoted in., VIRENDRAVs.THE STATE OF PUNJAB AND ANOTHER, In Avinder Singh
Vs. State Of Punjab, the Supreme Court observed: "The legislature is responsible and responsive
to the people and its representatives, the delegate may not be and that is why excessive
delegation and legislative hara kiri have been frowned upon by constitutional law. This is a trite
proposition but the complexities of modern administration are so baffling intricate and bristle
with details, urgencies, difficulties and need for flexibility that our massive legislatures may not
get off to a start if they must directly and comprehensively handle legislative business in all their
plentitude, proliferation and particularisation. Delegation of some part of legislative power
becomes a compulsive necessity for viability. If the 500odd parliamentarians are to focus on
every minuscule of legislative detail leaving nothing to subordinate agencies, the annual outpet
may be both unsatisfactory and negligible. The Law making is not a turnkey project, ready-made
in all detail and once this situation is grasped, the dynamics of delegation easily follows. Thus,
we reach the second constitutional rule that the essentials of legislative functions shall not be
delegated but the inessentials, however numerous and significant they be, may well be made over
to appropriate agencies. Of course, every delegate is subject to the authority and control of the
principal and exercise of delegated power can always be directed, corrected or cancelled by the
principal. Therefore, the third principle emerges that even if there be delegation, parliamentary
control over delegated legislation should be a living continuity as a constitutional necessity,
Within these triple principles, Operation Delegation is at once expedient, exigent and even
essential if the legislative process is not to get stuck up or bagged down or come to a grinding
halt with a few complicated bills." Employees' State Insurance Corporation And Ors. vs The
Workmen Of Iti Ltd. And Ors.
ESSENTIAL FUNCTIONS CANNOT BE DELEGATED
The Supreme Court, referring to a decision of the High Court of Australia in BAXTER v. AH.
WAY, (1909) 8 CLR 626 at p.637 (Aus.)(A), observed that when the Legislature is given plenary
power to legislate on a particular subject, there must also be an implied power to make laws
incidental to the exercise of such power. It was further observed that it is a fundamental principle
of constitutional law that everything necessary to the exercise of a power is included in the grant
of the power, that the Legislature cannot certainly strip itself of its essential functions and vest
the same on an extraneous authority, and that the primary duty of law making has to be
discharged by the legislature itself but delegation may be resorted to as a subsidiary or an
ancillary measure. With these observations as the back ground, the Supreme Court proceeded to
observe thus: "The legislative policy is apparent on the face of the present enactment. What it
aims, is the statutory fixation of minimum wages with a view to obviate the chance of
exploitation of labour.
Why is it necessary to have controls over delegated legislation?
There are many important reasons why it is necessary to have controls over delegated legislation.
Currently delegated legislation is made by non-elected bodies away from democratically elected
politicians (parliament) , as a result many people have the power to pass delegated legislation,
which provides a necessity for control, as without controls bodies would pass outrageous
unreasonable legislation which was attempted in the past; in the Strictland V Hayes Borough
Council (1986) where a bylaw prohibiting the singing or reciting of any obscene language
generally, was held to be unreasonable and as a result the passing of this delegated legislation
was rejected. Controls over delegated legislation have been essential in order to avoid authorities
abusing there powers, the particular cases are: R v Secretary of State for Education and
Employment, ex parte National Union of Teachers (2000) and Commissioners of Custom and
Excise v Cure and Deely Ltd (1962). Another issue which occurs making controls over delegated
legislation vital is sub legislation, which is where law making is handed down another level to
people other than those who were given the original power to do so, to implement important
policies. Creating criticism that our law is made by civil servants (who may know hardly
anything about the law) and just rubber stamped by the Minister of that apartment, this requires
law passed by these civil servants to be checked by the scrutiny committee of parliament or the
courts. Finally delegated legislation can share the same issues as Acts of Parliament such as
obscure wording that can lead to difficulty in understanding the law, which again makes controls
necessary as parliament or the courts can stop unclear legislation, which will affect the lives of
hundreds of people from passing.
The controls that exist over delegated legislation and criticisms
Control over delegated legislation is through parliament (via affirmative/ negative resolution
procedures as well as through the scrutiny committee) controls over delegated legislation also
exist through the courts (via judicial review and the doctrine of ultra vires
Essence of delegation as summed up by Supreme Court of India
The unavoidable delegation by the Legislature of working out details to the Executive or any
other agency, in view of the multifarious activities of the welfare State is aptly summed up by the
Supreme Court in DEVI DAS GOPAL Krishnan Vs. THE STATE OF PUNJAB AND OTHERS
while taking an excerpt from VASANTLAL MAGAKBHAI SANJANWALA v. THE STATE
OF BOMBAY (1961)1 SCR 341), though at the same, striking note of caution as to whether the
Legislature has exceeded the limits of delegation. It reads as follows: "The Constitution confers a
power and imposes a duty on the Legislature to make laws. The essential legislative function is
the determination of the legislative policy and its formulation as a rule of conduct. Obviously it
cannot abdicate its functions in favour of another. But in view of the multifarious activities of a
welfare State, it cannot presumably work out all the details to suit the varying aspects of a
complex situation. It must necessarily delegate the working out of details to the executive or any
other agency. But there is a danger inherent in such a process of delegation. An overburdened
Legislature or one controlled by a powerful executive may unduly overstep the limits of
delegation. It may not lay down any policy at all; it may declare its policy in vague and general
terms; it may not set 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. But the said liberal construction should not
be carried by the Courts to the extent of always trying to discover a dormant or latent legislative
policy to sustain an arbitrary power conferred on executive authorities. It is the duty of the Court
to strike down without any hesitation any arbitrary power conferred on the executive by the
Legislature."
In respect of another provision of the very Act, namely the Employees' State Insurance Act,
1948, i.e. in respect of Section 1(3) thereof, the Supreme Court considered the necessity of the
Legislature resorting to delegation in view of the necessity of existence of several circumstances
in order to bring into force the Act to a particular area. The Supreme Court observed that in the
very nature of things, it would have been impossible for the Legislature to decide in what areas
and in respect of which factories the Employees State Insurance Corporation should be
established and that it was obvious that a Scheme of this kind, though beneficent, could not be
introduced in the whole of the country all at once and that such beneficial measures which need
careful experimentation have some times to be adopted by stages and in different phases, and, so,
inevitably the question of extending the statutory benefits contemplated by the Act has to be left
to the discretion of the appropriate Government. The Supreme Court further observed that the
course adopted by the Legislature in dealing with the welfare schemes has uniformly conformed
to the same pattern and the Legislature evolves a scheme of social and economic welfare, makes
elaborate provision in respect of it and leaves it to the Government concerned to decide when,
how and in what manner the Scheme should be introduced.
BIBLIOGRAPHY
Books Referred
1. Delegation of Legislative Powers by Monica Chawla
2. Administrative law by C. K. Takwani
3. Constitution of India by V. N. Shukla