You are on page 1of 20

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.

What is 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 ratiffied 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
rattified within six weeks after the assembly of legislature .the source of
delgated 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 socio-
economic 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 n 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 unforseen contingencies


The need of amplifying the main provision of social legislation to meet
unforseen contingencies or to facilitate adjustment to new circumstances
arises all too frquently,for which the Parliamentary process involves
delay,but delegated legislation offfers 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 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 conveiniently 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,econoic 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 recognise and deal with the needs of local people. As a
result local people elect councillors from certain districts and it is their
responsibility to pass legislation in the form of by-laws to satisfy local
needs.

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 Mukherjea, 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."

Delegatee 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 [1955 (1) SCR 290]
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." others
[AIR 1960 SC 554] Krishna Mohan (P) Ltd. vs. Municipal Corporation of
Delhi and Others [(2003) 7 SCC 151]. .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 [(2001)
5 SCC 212] 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 law-
making 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 [(1984) 3 SCC 127], Agricultural Market Committee vs.
Shalimar Chemical Works Ltd. [1997) 5 SCC 516], Krishna Mohan (supra).
[Quoted from: State Of Rajasthan & Ors V. Basant Nahata [2005] RD-SC
474 (7 September 2005) ]

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 [(2004) 2 SCC 476] and Andhra Bank vs. B.
Satyanarayana and Others, [(2004) 2 SCC 657] 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 [(2000) 5 SCC 488] 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; 1984 Scr (3) 252

Unlimited right of delegation is not inherent in the legislative power.


[ Gwalior Rayon Silk Mfg. (Wvg.) v. The Asst.Comm. Sales Tax & Ors.,
[1974] 2 S.C.R. p. 879,]

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) S.C.R.519,referred to]. 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,(1954) S.C.R. 803, held inapplicable. Harishankar Bagla
v. The State of Madhya Pradesh, (1955) 1S.C.R. 380, relied on.as quoted
in., VIRENDRAVs.THE STATE OF PUNJAB AND ANOTHER, 1957 AIR
896,1958 SCR 308]

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 500-
odd 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. ILR 1997 KAR 1433,Karnataka High Court

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.