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the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." "No legislative body can delegate to another department of the government, or to any other authority, the power, either generally or specially, to enact laws. The reason is found in the very existence of its own powers. This high prerogative has been entrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it."
Furthermore: As far as delegation is concerned the SOP and the common law principle of „the AntiDelegation rule are the well accepted principles of municipal law, which prevents a person upon whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people. The legislature is supposed to be a delegate1 deriving its powers from the “people” who are the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority. The idea is prescribed by the maxim delegatus non potest delegare.
Constitution provides for the separation of the governmental powers into three basic divisions the executive, the legislative, and the judicial and the powers appertaining to each department have been vested in a separate body of public servants. It is considered to be an essential principle underlying the Constitution that powers entrusted to one department should be exercised exclusively by that department without encroaching upon the powers confided to others.
The Founding Fathers of the constitution have entrusted the power of legislation to the representatives of the peoples so that the power may be exercised not only in the name of people but also by the people speaking through their representatives. The rule against excessive delegation thus flows from and is necessary postulate of soverieignity of the people .See Gwalior rayon silk Mfg. Co. v. Asst. Commr. AIR 1974 SC 1660.
As per Cooley, “The different classes of power have been apportioned to different departments; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.” But this ‘Formalistic Approach’, now does not hold good2
Sir Cecil Carr quotes the Report of the Committee on Ministers' Powers, usually referred to as the Donoughmore Committee, said, "The first and by the far smallest part is made by the Crown under what survives of the prerogative. The second and weightiest part is made by the King in Parliament and consists of what we call Acts of Parliament. The third and bulkiest part is made by such persons or bodies as the King in Parliament entrusts with legislative power." Sir Cecil Carr further observes "the truth is that if Parliament were not willing to delegate lawmaking power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires." In England, the practice of delegating legislative power has certainly been facilitated by the close fusion of the legislative and executive power resulting from the development the cabinet system of government in England.
Mr Justice Story said“But when we speak of a separation of the three great departments of Government and maintain that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments: and that such exercise of the whole would subvert the principles of free Constitution.” If We See American Approach: Despite the theory which prohibits delegation of legislative power, one comes across numerous rules and regulations passed by non legislative bodies in
The maxim delegates non potest delegare is sometimes spoken of as laying down a rule of the law of agency; its ambit is certainly wider than that and it is made use of in various fields of law as a doctrine which prohibits a person upon whom a duty or office has developed or trust has been imposed from delegating his duties or powers to other persons. The introduction of this maxim into the constitutional field cannot be said to be altogether unwarranted, though its basis rests upon a doubtful political doctrine. To attract the application of this maxim, it is essential that the authority attempting to delegate its powers must itself be a delegate of some other authority. The legislature, as it exists in India at present day, undoubtedly in the creature of the Indian Constitution, which defines its powers and lays down its duties; and the Constitution itself is a gift of the people of India to themselves. But it is not a sound political theory,that the legislature acts merely as a delegate of the people. This theory once popularised by Locke and eulogized by early American writers is not much in favour in modern times
such legislation is based upon the immemorial Anglo-Saxon practice of leaving to each local community the management and control of local affairs. In fact. The Congress can authorise a public officer to make regulations. while its incapacity to bestow its authority upon an independent body like a board or commission is said to rest on the maxim delegatus non potest delegare. Such legislation is to be made within the framework of the powers so delegated by the legislature and is. the disability of the Congress to delegate its legislative powers to the executive. by its very nature. the legislature. is the legislation made by an authority subordinate to the sovereign authority. There are differences where pieces of subordinate . Nature of subordinate legislation : 'Subordinateness' in subordinate legislation is not merely suggestive of the level of the authority making it but also of the nature of the legislation itself. Meaning Of Delegated Legislation: Delegated/Subordinate legislation. But. and hence it is considered incapable of transferring such powers to any other authority…." Most of the enactment provide for the powers for making rules. known as delegated legislation. which are exercised by specified subordinate authorities. by-laws or other statutory instruments. purports to be based upon the doctrine of separation of powers.exercise of authority bestowed on them by the legislature in some shape or other. replace or modify the parent law nor can it lay down details akin to substantive law.but how is the real quest of delegated legislation As regards the maxim delegatus non potest delegare. dependent for its continued existence and validity on some superior or supreme authority. therefore. According to Sir John Salmond. Delegated legislation under such delegated powers is ancillary and cannot. The legislature has always been deemed competent to create a municipal authority and empower it to make byelaws. for practical purposes. therefore. its origin and theoretical basis are undoubtedly different from those of the doctrine of separation of powers. or the Judges of the court to frame rules of procedure which Ultimately The legislature is supposed to be a delegate deriving its powers from the “people” who are the ultimate repository of all powers. both these doctrines are linked together and are used as arguments against the Congress attempting to invest any other authority with legislative powers. According to Willis. namely. "Subordinate legislation is that which proceeds from any authority other than the sovereign power and is. regulations.
could be made so long as the delegating body retains its own legislative power intact. In the absence of a constitutional inhibition. i. In the latter. however.legislation which tended to replace or modify the provisions of the basic law or attempted to lay down new law by themselves had been struck down as ultra vires.e. a general power in the legislature to delegate legislative powers is not recognised in .e Enabling Statute. by a person or body of persons. delegation of legislative power. to another person or body of persons. remaining in the grantor or delegator. no express provision authorizing delegation is required. the Indian Legislature had no power prior to 1935 to delegate legislative power in its true sense. the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instrumentality of its choice. Apart from the sovereign character of the British Parliament whose powers are absolute and unlimited. but such authority is purely derivative. Delegation may be defined as the entrusting. with complete power of revocation or amendment. every detail for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer. Delegation is not handing over or transference of a power from one person or body of persons to another. The former. While this is also sometimes described as delegation of legislative powers. a positive enabling provision in the constitutional document is required. in essence it is different from delegation of legislative power as this does not involve the delegation of the power to determine the legislative policy and formulation of the same as a rule of conduct. Delegation often involves the granting of discretionary authority to another. And also There is difference between subordinate and sub delegation. While the so called delegation which empowers the making of rules and regulations has been recognised as ancillary to legislative power. delegation. there is no delegation of power to subordinate units but a grant of power to an independent and coordinate body to make laws operative of their own force. The legislature having thus made its laws. The ultimate power always remains in the delegator and is never renounced Delegation of legislative authority is different from the creation of a new legislative power. of the exercise of a power residing in that person or body of persons. however extensive. For the second. For the first i.
and the Constitution itself is a gift of the people of India to themselves. which had the effect of excluding the jurisdiction of the High Court. should apply to a certain district known as Garo Hills. Delegated Legislation The Standing Law in India: Whether there Can Be Delegation At All? The maxim delegatus non potest delegare is sometimes spoken of as laying down a rule of the law of agency. The introduction of this maxim into the constitutional field cannot be said to be altogether unwarranted. The powers of the Indian Legislature under the Constitution Acts of 1935 and 1950 are not different in this respect. as it exists in India at the present day. To attract the application of this maxim. The Act provided that certain special laws. which defines its powers and lays down its duties. In this case the question arose as to the validity of Section 9 of Act 22 of 1869 passed by the Governor-General‟s Legislative Council. This theory once popularised by Locke and eulogized by early American writers is not much in favour in modern times. and Section 9 empowered the Lieutenant-Governor of Bengal to extend the operation of these laws to certain other areas if and when the Lieutenant-Governor. The Legislature. its ambit is certainly wider than that and it is made use of in various fields of law as a doctrine which prohibits a person upon whom a duty or office has devolved or a trust has been imposed from delegating his duties or powers to other persons. But it is not a sound political theory. it is essential that the authority attempting to delegate its powers must itself be a delegate of some other authority. would declare that they should be so applied. that the legislature acts merely as a delegate of the people. though its basis rests upon a doubtful political doctrine.any state. by notification in the Calcutta Gazette. Burah [(1878) 3 AC 889]. undoubtedly is the creature of the Indian Constitution. it was definitely held by the Judicial Committee in the well-known case of Queen v. . With regard to the Indian Legislature as it existed in British days constituted under the Indian Councils Act. that it was in no sense a delegate of the British Parliament.
. but being both “a legislative and a constituent assembly”.The majority of the Judges of the Calcutta High Court upheld the contention of the respondent. It is not present also in the Indian Parliament of the present day which is a creature of the Indian Constitution and has got to exercise its legislative powers within the limits laid down by the Constitution itself. although as an epigrammatic saying it embodies a general principle that it is not irrelevant for our present purpose. it is not in any sense an agent or delegate of the imperial Parliament. in delivering the judgment. Burah. It is to be noted that so far as the British Parliament is concerned. I am unable also to accept his contention that in this respect the authority of the Indian Legislature is as plenary as that of the British Parliament. within any bounds. But even then I am unable to agree with the broad proposition enunciated by the learned Attorney-General that a legislative power per se includes within its ambit a right for the legislative body to delegate the exercise of that power in any manner it likes to another person or authority. even though it had very wide powers of legislation and within the scope of its authority could pass laws as important as those passed by the British Parliament.. “the power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined. and could not be. This sovereign character was not. do nothing beyond the limits which circumscribe these powers.” J... Acting in its ordinary capacity as a legislative . and. The British Parliament can not only legislate on any subject it likes and alter or repeal any law it likes. repealing. too much importance need not also be attached to the maxim delegatus non potest delegare. confirming.. But when acting within those limits. This view was negatived by the Judicial Committee. reviving and expounding of laws. observed as follows: “The Indian Legislature has powers expressly limited by the Act of the imperial Parliament which created it. one of the learned Judges relied inter alia upon the principles of the law of agency. the legislature in India is able to do through an agent anything which it could do itself. Mukherjee Has Said in Delhi Laws Ac Case: I am quite willing to concede that the doctrine of separation of powers cannot be of any assistance to us in the solution of the problems that require consideration in the present case. It hath sovereign and uncontrollable authority in the making. enlarging.. and was intended to have. plenary powers of legislation as large and of the same nature as those of parliament itself. either for causes or persons. but has. In my opinion. and no act of the Parliament can be held to be unconstitutional in a British court of law. abrogating. and it can. In the words of Sir Edward Coke. predicated of the Legislative Council of British India as it was constituted under the Indian Councils Act. provided the subject-matter of legislation is not one outside the field of its legislative competence. and Lord Selborne. it can change and modify the so-called constitutional laws and they can be changed by the same body and in the same manner as ordinary laws. of course. that the authority conferred on the Lieutenant-Governor to extend the Act in this way was in excess of the powers of the Governor-General-in-Council. there is no constitutional limitation upon its authority or power. and in support of this view. this being the place where that absolute despotic power which must in all Governments reside somewhere is entrusted by the constitution of these kingdoms”.
The position simply is this that in England. Extent of executive power of the Union. But the validity or invalidity of a delegation of legislative power by the British Parliament is not and cannot be a constitutional question at all in the United Kingdom. authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not. is included within. to whichever department of the powers exercisable by the British Parliament the right of delegation of legislative authority may be attributed .body. the power of law-making can be exercised by the Union Parliament or a State Legislature which is to be constituted in a particular manner and the process of legislation has been described in detail in various articles 73. Therefore.no objection can be taken to the legality of the exercise of such right. from the mere fact that the British Parliament exercises unfettered rights of delegation in respect of its legislative powers. the question whether the right of delegation. either limited or unlimited. the executive power of the Union shall extend(a) To the matters with respect to which Parliament has power to make laws. (1) Subject to the provisions of this Constitution.and there is no dispute that all the sovereign powers are vested in the Parliament . Constitutional Provisions: We need not for this purpose pay any attention to the American doctrine of separation of powers. for the Parliament being the omnipotent sovereign is legally competent to do anything it likes and no objection to the constitutionality of its acts can be raised in a court of law. . extend in any State 1[***] to matters with respect to which the Legislature of the State has also power to make laws. the right of legislation is a question which must be answered on a proper interpretation of the terms of the Constitution itself. But in India the position even at the present day is different. According to the Indian Constitution. and forms an integral part of. and (b) To the exercise of such rights. There being a written constitution which defines and limits the rights of the legislature. no matter. and in support of his contention he refers to the unrestricted rights of delegation which are exercised by the British Parliament. save as expressly provided in this Constitution or in any law made by Parliament. and its acts can always be questioned in a court of law. the Indian Parliament cannot go beyond the Constitution or touch any of the constitutional or fundamental laws. the conclusion does not follow that such right of delegation is an inseparable adjunct of the legislative power itself. we must look to the express language of our own Constitution and our approach should be to the essential principles underlying the process of law-making which our Constitution envisages. The contention of the learned Attorney-General in substance is that the power of delegation of legislative authority without any limitation as to its extent is implicit in the exercise of the power itself. Consequences of great constitutional importance flow from this difference and they have a material bearing on the question before us.
the Legislature of any State 1[***] also. 29 and Sch. Parliament. a State and any officer or authority of a State may. Subject to the provisions of this Constitution. (1) Notwithstanding anything in clauses (2) and (3). and. s. continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution. 1. notwithstanding anything in this article. the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. 1978. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"). have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). and limited by. subject to clause (1). 245. 246. the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws. Extent of laws made by Parliament and by the Legislatures of States. Parliament may make laws for the whole or any part of the territory of India. Subject-matter of laws made by Parliament and by the Legislatures of States. the executive power of the State shall be subject to. (3) Subject to clauses (1) and (2). and the Legislature of a State may make laws for the whole or any part of the State. the Legislature of any State 1[***] has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List"). (1) Subject to the provisions of this Constitution. (2) Notwithstanding anything in clause (3). Extent of executive power of State. The words and letters "specified in Part A or Part B of the First Schedule" omitted by the Constitutuion (Forty-fourth Amendment) Act. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.(2) Until otherwise provided by Parliament. . 162.
(1) All laws in force in the territory of India immediately before the commencement of this Constitution. custom or usage having in the territory of India the force of law. 1. notification. (3) In this article. (a) "Law" includes any Ordinance. 2. for "in Part A or Part B of the First Schedule". except when both Houses of Parliament are in session. s. Ins. to the extent of the contravention. in so far as they are inconsistent with the provisions of this Part. Subs. 1 [(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368. the President is satisfied that circumstances exist which render it necessary for him to take immediate action. 1971. by the Constitution (Twenty-fourth Amendment) Act. 1956. Laws inconsistent with or in derogation of the fundamental rights. shall.(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2[in a State] notwithstanding that such matter is a matter enumerated in the State List. which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall. rule.2.] 1. by s. 13. s. be void. regulation. (1) If at any time. Power of President to promulgate Ordinances during recess of Parliament. be void. (b) "Laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed. to the extent of such inconsistency. order. he may promulgate such Ordinances as the circumstances appear to him to require. 123. the Constitution (Seventh Amendment) Act. 29 and Sch. The words and letters "specified in Part A or Part B of the First Schedule" omitted by the Constitution (Seventh Amendment) Act. (2) The State shall not make any law. 1956. unless the context otherwise requires. 29 and Sch. bye-law.. . notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
Power of Governor to promulgate Ordinances during recess of Legislature. 16 (w. without instructions from the President. s. 2 (retrospectively) and omitted by the Constitution (Forty-fourth Amendment) Act. the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. having been reserved for the consideration of the President. or (b) He would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President. except when the Legislative Assembly of a State is in session. or. or where there is a Legislative Council in the State. 1975. 1978. 213. s. but every such Ordinance(a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament.f. he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not. before both the Houses. Where the Houses of Parliament are summoned to reassemble on different dates. (1) If at any time. but every such Ordinance(a) Shall be laid before the Legislative Assembly of the State. 1[* * * *] 1. except when both Houses of the Legislature are in session. upon the passing of the second of those resolutions. it shall be void. 20-6-1979). the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action. it had received the assent of the President.(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament. and shall cease to operate at the expiration of six . if before the expiration of that period resolutions disapproving it are passed by both Houses. Cl. (4) was ins. promulgate any such Ordinance if(a) A Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature. and (b) May be withdrawn at any time by the President. or (c) An Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless. by the Constitution (Thirty-eighth Amendment) Act. (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor. (3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact.e. Explanation. or where there is a Legislative Council in a State.
by the Constitution (Thirty-eighth Amendment) Act.R. for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List. s. 27 (w.weeks from the reassembly of the Legislature.f. 1975. 1978. if any. The State of Punjab. Cl. Thakur Bharat Singh 1967 AIR 1170: 1967 SCR (2) 454 Every Act done by the Government or by its officers must. and (b) May be withdrawn at any time by the Governor. In support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken. Rai Sahib Ram Jawaya Kapur v.  2 S. upon the passing of the resolution or. be supported by some legislative authority. P. . if it is to operate to the prejudice of any person. s. Power Of Delegated Legislation on Administrative Agency/Officers State of M. the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council. as the case may be. 3 (retrospectively) and omitted by the Constitution (Forty-fourth Amendment) Act. 225. Explanation. 1. on the resolution being agreed to by the Council. 20-6-1979). Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates.e. (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor. an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him. & Another v. it shall be void: Provided that. (4) was ins.C.
Today.. C. the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. But Art.. One must not take lightly and say that there can be transfer of legislative power under the guise of delegation which would tenta mount to abdication. J.Article 162 provides that subject to the provisions of the Constitution. an unfortunate but inevitable infringement of the separation of powers. that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists. 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other and not with the validity of its exercise. that the Union or the State executive. in the said case are “They do not mean. There is only a hazy borderline between legislation and administration. Delegation by the legislature is necessary in order that the exertion of legislative power does not become a futility. Observations of Mukherjea. The making of law is only a means to achieve a purpose. one must be aware of the practical reality that the parliament cannot go into details of all legislative matters. can proceed to function in respect to them. technical knowledge and a degree of adaptability to changing situations etc. But many topics or subjects of legislation are such that they require expertise. It is easy to see that legislative power is the power to . 162 and Art. which parliament might not possess and. There are some obvious general differences. The legislative process would frequently bog down if a legislature were required to appraise before hand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. It is not a end in itself. the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. while theory still affirms legislative supremacy. as the case may be. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice.” These observations must be read in the light of the facts of the case. On the other hand. But the idea that a clean division can be made (As it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. That end can be attained by the legislature making the law. Delegated Legislation : Whether a Necessary evil? Delegation of 'law making' power is the dynamo of modem government. At the same time. and the assumption that they are two fundamentally different forms of power is misleading. therefore this end is better secured by extensive delegation of legislative power. power floats back increasingly to the Executive. It will be useful to reproduce here a passage from Administrative Law by Wade & Forsyth (Eighth Edition 2000 at page 839): "Administrative legislation is traditionally looked upon as a necessary evil.
. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule.. it may declare its policy in vague and general terms. 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. v. after coming in to force of the Act. Devi Das Gopal Krishnan and Ors. But in view of the multifarious activities of a welfare State. Rules and Regulations made by reason of the specific power . it cannot presumably work out all the details to suit the varying aspects of a complex situation. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statues.. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. whereas administrative power is the power to lay down the law for them. St Johns Teachers Training Institute v Regional Director National Council for Teachers: AIR 2003 SC 1533 The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. The legislature may..lay down the law for people in general. 557: 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." Devi Das Gopal Krishnan and Ors. Obviously it cannot abdicate its functions in favour of another. in some particular situation.. 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 frame work of policy. it may not set down any standard for the guidance of the executive. It must necessarily delegate the working out of details to the executive or any other agency. or. State of Punjab and Ors. what is fictionally called.C. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. is in a better position to adapt the Act to special circumstances. But there is a danger inherent in such a process of delegation. or apply the law to them.  1 S. a power to fill up details. What is permitted is delegation of ancillary or subordinate legislative functions. It may not lay down any policy at all.R.
Delegated legislation fills those needs. Regulations are in aid of enforcement of the provisions of the Statute.' acid to ensure 'equity of status and of opportunity' and 'the dignity of the individual' and the 'unity of the nation'. broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full time expert executive bodies and specialist public servants. Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance. subject to the limitations imposed by the Constitution itself. if validly made. the exaction of taxes and the defence of its frontiers.. faith and worship.conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. That is what the Preamble to our Constitution says and that is what is elaborated in the two vital chapters of the Constitution on Fundamental Rights and Directive Principles of State Policy. Nor can Parliament and the State Legislatures visualise and provide for new. belief. strange. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. That is the raison d'etre for delegated legislation. The Regulations made under power conferred by the Statute are supporting legislation and have the force and affect. The Parliament and the State Legislatures are not bodies of experts or specialists. It has to be and it is as it should be. The Registrar of Co-operative Societies Trivandrum and Anr v. That is what makes delegated legislation inevitable and indispensable. the expectations and the needs. expression. K. to preserve 'liberty of thought. The power to legislate carries with it the power to delegate……. The desire to attain these objectives has necessarily resulted in intense legislative activity touching every aspect of the life of the citizen and the nation. The Indian Parliament an d the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution. Executive activity in the field of delegated or subordinate legislation has increased in direct. They are skilled in the art of discovering the aspirations. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. as the Act passed by the competent legislature.A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same . AIR 1980 SC 350 It is trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace. economic and political justice'. unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. It is now the function of the State to secure to its citizens 'Social. They function best when they concern themselves with general principles. geometric progression. the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent. Kunjabmu and Ors.
1947. by notification in the Official Gazette. 1950 read: “Power to extend enactments to certain Part „C‟ States. under the provisions of the group of statutes known as Indian Councils Acts (1861-1909).. .” (2) Was the Ajmer-Merwara (Extension of Laws) Act. extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof. Is it permissible for the legislature to delegate legislative power to a subordinate authority – limits within which this could be done. 1912. with such restrictions and modifications as it thinks fit. extend to any Part „C‟ State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State. particularly those statutes which are designed to further the Directive Principles of State Policy In re Delhi Laws Act AIR 1951 SC 332( Doctrine of Excessive Delegation Evolved) The Delhi Laws Act. was created a Chief Commissioner‟s Province on that date and on the following date the Governor-General‟s Legislative Council enacted the Delhi Laws Act. extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification.” (3) Is Section 2 of the Part „C‟ States (Laws) Act. 1912. or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act? Section 2 of the Ajmer-Merwara (Extension of Laws) Act. any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part „C‟ State. Reference was made by the President of India under Article 143 of the Constitution asking the Court‟s opinion on three questions: (1) Was Section 7 of the Delhi Laws Act. 1912 read: “The Provincial Government may. by notification in the Official Gazette. 1912 was passed by the Governor-General-in-Council at its legislative meeting that being the legislature constituted for British India at that time. any enactment which is in force in any part of British India at the date of such notification. 1912 which came into force on and from the 1st of October. which up till the 17th of September. 1947 read: “Extension of Enactments to Ajmer-Merwara. 1912.The Central Government may.principle a generous degree of latitude must be permissible in the case of welfare legislation. .” . or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament?” Section 2 of the Part „C‟ States (Laws) Act. was a part of the province of the Punjab.The Central Government may. or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act?” Section 7 of the Delhi Laws Act. 1950. Delhi. by notification in the Official Gazette.
to apply without modification (save incidental changes such as name and place). any restrictions or modifications as it thinks fit. powers. The extent to which such delegation should be made is entirely a matter for consideration by the legislature itself and a court of law has no say in the matter. which passed the respective enactments. mentioned above. . the Central Legislature had empowered an executive authority under its legislative control to apply. as conferment by the legislatures. It is argued that. which are vested in it. at its discretion. and the authority in whose favour the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws. save and except these two limitations as claimed. The second is that if the constitutional document has provided for distribution of powers amongst different legislative bodies. one legislature cannot delegate to another. Summary Delhi Act Case: The Court had before it the following problems. the „doctrine of inhibition of delegation by legislative authority‟ has no place in a Constitution modeled on the English system which does not recognize the principle of separation of powers as obtains in the American system. at its discretion. exclusively under the Constitution. to an outside authority. The contention 1 : In substance was that a legislature which is competent to legislate on a particular subject has the competence also to delegate its legislative powers in respect of that subject to any agent or external authority as it thinks proper. The controversy centres‟ round the point as to whether such delegation was or is within the competency of the particular legislature which passed these enactments. there has been. The variations were as follows : (1) Where the executive authority was permitted. the whole of any Central Act already in existence in any part of India under the legislative sway of the center to the new area : This was upheld by a majority of six to one. what may be described. The contention 2 : In substance was that. there could be. These questions are of great constitutional importance and require careful consideration. In each case. only two possible limitations upon the exercise of such right of delegation by a competent legislative body.It will be noticed that in all the three items of legislation. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. of some of the powers which the legislative bodies themselves could exercise. One is that the legislature cannot abdicate or surrender its powers altogether or bring into existence a new legislative power not authorised by the constitutional instrument. laws to an area which was also under the legislative sway of the center.
" For this reason that was prepared to uphold what he called "conditional" or "subsidiary" or "ancillary" legislation. (6) Where the authorisation was to apply existing laws. (3) Where the executive authority was permitted to select future Central laws and apply them in a similar way : This was upheld by five to two. either Central or Provincial.J. so it will be necessary to analyse what each Judge said. (5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws. whether State Legislatures or executive authorise. it could confer on the delegate all the rights of legislation which it itself possessed (page 1068). and (7) Where the authorisation was to apply future laws under the same conditions : The views of the various members of the Bench were not as clear cut here as in the first five cases. Put briefly his view was that only Parliament can effect modifications in any "essential legislative function" viz. except." . The opinion of Kania C. Central of Provincial. Das J. was of the opinion that so long as Parliament did not abdicate or efface itself and retained control in the sense of retaining the right to recall or destroy or set right or modify anything its delegate did. Patanjali . and for the same reason he excluded the application of all future legislation. (4) Where the authorisation was to select future Provincial laws and apply them as above : This was also upheld by five to two. but this time by a majority of five to two. Chief Justice (Mahajan J. He was prepared to authorise delegation of ancillary or ministerial powers (pages 938 and 946) but except for that he said "Parliament has to no power to delegate its essential legislative functions to other. As against this. functions which really in their true nature are ministerial. three of the Judges were more liberal. will be found at pages 794-797. with or without modification : This was held to be ultra vires by a majority of four to three. but not the application by an executive authority of Provincial Acts to which the Central Legislature had not applied its mind at all (page 801). with alterations and modifications.(2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances : This was also upheld. "the determination of the legislative policy and its formulation as a rule of conduct. as he then was) took an even stricter view. of course..
I do not think that a Court of law has got any say in the matter.. mean or involve any change of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made the Judge.." but that it may "utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do.. did not go as far though he upheld all the Acts which were impugned in that case.." . The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it. Fazl Ali J. (as he then was) took the same extreme view (pages 857. The power to modify certainly involves a discretion to make suitable changes. in my opinion." At pages 1008 and 1009 he explained this further and limited the modifications to "local adjustments or changes of a minor character..... it can do everything which is ancillary to and necessary for the full the effective exercise of its power of legislation... In other words.. does not.." The other two Judges took an intermediate view.." and at page 1000 "With the merits of the legislative policy." He dealt with the power to modify at page 846 and said "The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law.." Dealing with the word "modification" he said at page 1006 "The word 'modification'...Sastri J. the Court of law has no concern.. 858 and 870). It is enough if it is defined with sufficient precision and definiteness so as to furnish sufficient guidance to the Executive Officer who has got to work it out. but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes.. If there is no vagueness or indefiniteness in the formulation of the policy. At page 830 he said that "the Legislature must normally discharge its primary legislative function itself and not through others. said that essential legislative functions cannot be delegated and at pages 982 to 984 he indicated what he meant : "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. Mukherjea J..
To alter the essential character of an Act or to change it in material particulars is to legislate.. cannot be delegated by a Legislature which is not unfettered. . namely the power to legislate." But he added at page 1124 "My answers are. however... Exactly what constitutes an essential feature cannot be enunciated in general terms... and that. 'So long as a policy is laid down and a standard established by statue no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply' In Harishankar Bagla v. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy.... any enactment which is in force in any part of British India at the date of such notification." "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The State of Madhya Pradesh : 1954CriLJ1322 In dealing with the validity of cl.Bose J.. 3 of the Cotton Textile (Control of Movement) Order. subject to this qualification. It was settled by the majority judgment in the Delhi Laws Act case that the essential powers of legislation cannot be delegated... 1946. 3 of the Essential Supplies (Temporary Powers) Act. promulgated by the Central Government under s.. or to delete portions which are meant solely for another area. 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. the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature." In Final opinion. extend with such restriction and modifications as it thinks fit.. all authorities are agreed. contented himself at page 1121 by saying that the delegation cannot extend to the "altering in essential particulars of laws which are already in force in the area in question. but this much is clear from the opinions set out above : it cannot include a change of policy. and there was some divergence of view about this in the former case.... 1948. The following provision was held to be good by a majority of four to three : "The Provincial Government may. The power to 'restrict and modify' does not import the power to make essential changes.
In Sita Ram Bishambhar Dayal State of U. State of Madhya Pradesh 1SCR427 Holding that the fixation of rates of tax not being an essential legislative function.The Chairman. in speaking for the Court. Sales Tax Act. observed : ..The Legislature must declare the policy of the law and the legal principles which are to control any -given cases and must provide a standard to guide the officials or the body in power to execute the law. but observed that when it was left to such a body. J. but it is clear that modification cannot include a change of policy. Exactly what constitutes an essential feature cannot be enunciated in general terms.. could be validly delegated to a non-legislative body. but not in any essential features. Essential legislative function consists in the determination of the legislative policy and its formulation as a binding rule of conduct.P.P. the legislature must provide guidance for such fixation. Taxation: Banarsi Das v. 1948.: 2SCR141 Section 3-D(1) of the U. Modifications which are authorised are limited to local adjustments or changes of minor character and do not mean or involve any change of policy or change in the Act. J. 1SCR290 Bose. and speaking for a unanimous Court observed that an executive authority can be authorised by a statute to modify either existing or future laws.The Court found the guidance in the monetary needs of the Corporation for carrying out the functions entrusted to it under the Act. attempted to summarise the effect of the various opinions expressed in the Delhi Laws Act case: 2SCR747 . had provided for levying taxes at such rates as may be prescribed by the State Government not exceeding the maximum prescribed therein. Hegde. Modification of Statute: In Rajnarain Singh v. Patna and Anr. Patna Administration Committee.
to be granted. 1916. Text book doctrines evolved in the 19th century have become out of date. In Municipal Corporation of Delhi v. the systems of assessment to be adopted and the exemptions.R. motion forces which have made it absolutely necessary for the Legislatures to entrust more and more powers to the executive. it was contended. The majority of the court held the delegation to be valid. was involved. In Municipal Board. if any. under Section 150. Raghuvendra Kripal  1 S. This. 950 The validity of the U. was ultra vires because there was an abdication of essential legislative functions by the legislature with respect to the imposition of tax inasmuch as the State Government was given the power to condone the breaches of the Act and to set at naught the Act itself.However much one might deplore the 'New Despotism' of the executive. This provision. Municipalities Act. the classes of persons and the description of articles and property to be taxed. it is proper to leave to these municipalities the power to impose and collect these taxes. it was contended. The Delhi Municipal Corporation Act (66 of 1957) by Section 113(2) had empowered the Corporation to levy certain optional taxes. there were other safeguards by way of checks and controls by Government which could veto the action of the Board in case it did not carry out the mandate of the legislature. . Hidayatullah.P. J. power was given to the Corporation to define the maximum rate of tax to be levied. said that regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration. the very complexity of the modern society and the demand it makes on its Government have set in. He further said that apart from the fact that the Board was representative body of the local population on whom the tax was levied. prescribed an elaborate procedure for such a levy and also provided for the sanction of the Government.C. The Act had empowered the municipalities to fix the rate of tax and after having enumerated the kinds of taxes to be levied. Section 135(3) of the Act raised a conclusive presumption that the procedure prescribed had been gone through on a certain notification being issued by the Government in that regard. was an indirect exempting or dispensing power. Hapur v. Birla Cotton Spinning and Weaving Mills 3SCR251 The main question was about the Constitutionality of delegation of taxing powers to municipal corporations. speaking for the majority.
Wanchoo. It may also. According to the learned Chief Justice. or it may take the form of providing for consultation with the people of the local area and then fixing the rates after such consultation. (ii) Essential legislative function cannot be delegated by the Legislature. There may be other ways in which guidance may be provided. and (v) The taxing provisions are not exception to these rules. or even partially in respect of a particular topic or matter entrusted by the Constitution to the Legislature. take the form of subjecting the rate to be fixed by the local body to the approval of Government which acts as a watchdog on the actions of the local body in this matter on behalf of the legislature. principles. (iv) Mere authority to legislative on a particular topic does not confer authority to delegate its power to legislate on that topic to another body.J. The power conferred upon the Legislature on a topic is specifically entrusted to that body. The learned Chief Justice observed that statements in certain cases to the effect that the power to fix rates of taxes is not an essential legislative function were too broad and that ''the nature of the body to which delegation is made is also one factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation". Dangers of Delegation: . policy. C. checks and safeguards in the Act which prevented excessive delegation. standard or guidance to another body unless the Constitution expressly permits delegation. Entrustment of power without guidance amounts to excessive delegation of legislative authority. (iii) Power to make subsidiary or ancillary legislation may however be entrusted by the Legislature to another body of its choice. there can be no abdication of legislative function or authority by complete effacement. that is. the fact that delegation was made to an elected body responsible to the people including those who paid taxes provided a great check on the elected councilors imposing unreasonable rates of tax. provided there is enunciation of policy. observed that there were sufficient guidance. He then said :The guidance may take the form of providing maximum rates of tax up to which a local body may be given the discretion to make its choice. On a review of the above cases the following principles appear to be well-settled (i) Under the Constitution the Legislature has plenary powers within its allotted field. or standards either expressly or by implication for the guidance of the delegate in that behalf. and it is a necessary intendment of the constitutional provision which confers that power that is shall not be delegated without laying down principles.
its limits should be defined with equal clearness. An overburdened Legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. it is on the basis of those parliamentary limits alone that the Power of judicial review can be exercised. it may declare its policy in vague and general terms. Laying down of limits in the enabling Acts within which executive action must work is of greater importance to England than to any other country. Clear Policy Necessarily to be Supplied. it may not set down any standard for the guidance of the executive. Gwalior Rayon Case : H. . This self-effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. because in the obscure of any constitutional limitation.R Khanna J. Solution Committees on Ministers Powers observed that “The precise limits of lawmaking power which parliament intends to confer on a minister should always be expressly defined in clear language by the statutes which confers it when discretion is conferred. 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. Simily of Expression: Delhi Laws Act: Whether Delegation permissible? Are there Any Limits? Harishankar Bagla Case : Definition of Essential Function. It may not lay down any policy at all.
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