Constitutionality of Administrative Rule Making

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The phrase constitutional validity of administrative rule making means the permissible extent of the
Constitution of any country within which the legislature, which strictly speaking is the sole authority of
law making power, can validly delegate rule making powers to other administrative agencies. In todays
world, there has been a tremendous expansion of the governments authority due to the shift from the
laissez faire regime to a welfare state concept. As a result, the new role of the state can only be fulfilled
through the use of greater power in the hands of the government which is best suited to carry out the
social and economic tasks before the country. The task of increasing the power of the government to
successfully deal with the problems of social and economic reconstruction has been accomplished by
delegating the legislative power to it. This is commonly known as the concept of delegated legislation.
The history of delegation of powers can be traced from the charter stage of 1833 when the East India
Company was regaining political influence in India. It vested the legislative powers exclusively in
Governor General, which was an administrative body. He was empowered to make laws and
regulations for repealing, amending or altering any laws or regulations, which were in force for all
persons irrespective of their nationality. In 1935, the Government of India Act was passed which
contained an intensive scheme of delegation. Though, our constitution was based on the principal of
separation of powers, a complete separation of powers was not possible, hence, it has maintained the
sanctity of the doctrine in the modern sense. The Indian Constitution does not prohibit the delegation of
powers. However, delegated legislation gives rise to a natural question, i.e. its constitutionality.
The major problem associated with constitutional validity of administrative rule-making is regarding the
permissible limit of delegation of powers by legislature. This paper endeavours to elaborate on
following issues:
Is there a difference between jurisprudence related to administrative rule-making between preindependence and post-independence India? If yes, what is it?
What has been the trend of judiciary in determining questions related to constitutionality of
administrative rule-making in the past sixty years?
Hypothesis: There is a considerable difference in the positions adopted by Privy Council, Federal Court
and the Supreme Court. Courts have recognised the legality of administrative rule-making but have
differed on the permissible extent of delegation. Such questions have been settled on a case to case
basis.
Scope: The scope of this study is limited to analysing the Indian position on administrative rule-making
and does not extend beyond it.
Methodology: The researcher has followed a historical and analytical method of research, relying on
primary sources which include case laws and the Constitution of India. Also, secondary sources
including books and articles by eminent scholars have been referred to.

1: Validity of administrative rule making in pre-independence and postindependence India

Three sets of periods describe the question of permissible limits within the Constitution, within which
delegated legislation is permissible. This chapter does a cross sectional analysis judgements by the
three highest courts of appeal in India during these three different periods.

Period I Privy Council as the highest court of appeal.

The nature and extent of legislative power and the possibility of its delegation was considered by the
Privy Council in the case of R. v. Burah.

R v. Burah
The Act under consideration was the Act XXII of 1869 Act of the Council of the Governor-General. It
removed Garo hills from the civil and criminal jurisdiction of Bengal and placed its administration under
an officer appointed by the Lt. Governor. Section 9 of the Act, authorized the Lt. Governor, to extend the
provisions of the Act, to Khasi and Jantia Hills, with incidental changes. Burah was tried for murder by
the Commissioner of Khasi and Jaintia Hills and was subsequently sentenced.
Calcutta HC, relying on the doctrine of delegates non potest delegare, held that the Indian Legislature,
itself being a delegate of the Imperial Parliament, could not further sub-delegate its power under
Section 9.
On appeal, Privy Council reversed the judgment of the Calcutta HC. It held that the Council of the
Governor-General was a supreme legislature with plenary powers and entitled to transfer certain
powers to the Provincial Executive. Laws passed by the subordinate executive authority on the basis of
such transfer of power were held to be valid.
It is, however, characteristic that delegated legislation was carefully termed conditional legislation by
the Privy Council. The Privy Council considered a similar state of affairs in two Canadian cases, in
Russel v. the Queen and in Ilodge v. the Queen, in which powers transferred from a legislature to the
subordinate authority were also called powers of conditional or of ancillary legislation. The same
reluctance to call delegation of legislative power by name may be found in a number of other cases of
Privy Council. Thus, the Privy Council, the highest judicial authority for India, accepted transfer of
legislative power to the executive, though it was not called delegation sensu stricto.

Period II Federal Court as the highest court of appeal.

Federal Court of India, the predecessor of the present Supreme Court, examined the problem of
delegation of legislative power to an extraneous authority in the case of Jatindra Nath Gupta v. the
Province of Bihar.

Jatindra Nath Gupta v. Province of Bihar

In this case, the provincial government was authorized to extend the applicability of The Bihar
Maintenances of Public Order Act, 1948 for one year, under Section 1(3) of the Act. The extension
could be made with such modifications as it may deem fit. This was challenged on the grounds of
excessive delegation.
The Federal Court held that the delegation of power of extension with modification is ultra vires the
Bihar Provincial Legislature as it is an essential legislative function. A dissenting opinion was delivered
by J.Faizal Ali, wherein, he held that the delegation of power of extension was constitutional as it only
amounted to continuation of the Act.
This judgment marks a shift from the position adopted by the Privy Council in R v. Burah. This decision
is of great importance, as it implies the acceptance of a rigid theory of separation of powers by the
Federal Court.

Period III Supreme Court as the highest court of appeal.

In Re Delhi Laws Act

This was a Presidential reference under Article 143 of the Constitution. Constitutional validity of 3 laws
Section 7 the Delhi Laws Act, 1912, Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947,
and Section 2 of the Part C States (Laws) Act, 1950 were in question.
Section 7, Delhi Laws Act, empowered the Provincial Government to extend to the Province of Delhi,
any law in force in any part of British India, with such restrictions and modifications as it deemed fit.
Section 2, Extension of Laws Act, empowered the Central government to extend to the Province of
Ajmer-Mewar, any law in force in any other province, with such restrictions and modifications as it
deemed fit. Under Section 2 of the Part C States Act, the Central government was provided a similar
power as in the above two instances. However, additional power to repeal or amend any
corresponding law which was applicable to Part C States was also delegated.
Section 7 of the Delhi Laws Act, 1912 and Section 2 of the Ajmer-Merwara (Extension of Laws) Act,
1947 were held to be valid. Section 2 of the Part C States (Laws) Act, 1950 was also held valid except
that part of the section which delegated the power of repeal and amend any existing law.
Though, each of the seven participating judges delivered separate opinions, on two points there was
unity of outlook amongst all. Firstly, that delegation of legislative power by the legislature to the
administrative organs was necessary & legitimate and secondly, that there was a need to impose an
outer limit on delegation by the legislature. The disagreement between the judges was on the question
of permissible limits of delegation. The judges repeatedly emphasized that in India, the theory of
separation of powers does not operate in the area of legislative-executive relationship. None of the
organs of the State can divest itself of the essential functions which belong to it under the Constitution.
This is based on the doctrine of Constitutional Trust.
In settling this case, the Supreme Court had, apart from general principles, little guidance from the
Constitution. This advisory opinion constitutes an impressive survey of the history of delegation in
Great Britain and other Commonwealth countries, and in the United States. It shows that by now the
previously distant lines of development of the parliamentary and presidential regimes began at least in
certain respects to run parallel and the court relied on the experience of both systems without
excessive difficulties in reconciling some of the differences which tend to fade on the common
background of democracy. This chef-d'oeuvre of expediency resulted finally in the acceptance of
delegation of legislative power as such without allowing it in Mr. Justice Cardozo's words to run riot
but confining it within banks that keep it from overflowing.

2: Judiciary on constitutionality of administrative law making

After the decision of the In re Delhi Laws case, the primary issue in all the subsequent cases has been
to determine, whether the power delegated was an essential legislative function or not. It includes
inquiry into certain factors such as preamble of the statute, impugned provisions, subject matter of law,
and circumstantial background of enacting the law. Essential legislative power means laying down the
policy of the law and enacting it in a binding rule of conduct.
There is always the presumption of validity of a law in the court and in between two different
interpretations, court chooses the one which makes the law constitutional. This may include reading
down of a law.
The legislative policy has to be ascertained by the court from the provisions of the Act, including its
Preamble, and, where the impugned Act replaces another Act, the court may even look into the
provisions of that Act in order to determine whether the Legislature has conferred unguided power to
the Executive. The very nature of the body to which the power has been delegated , and the context in
which it has been exercised are also some factors to be taken into consideration in determining
whether the guidance offered is sufficient. It is not necessary for legislative policy to be mentioned in
the section providing for delegation of power.

As stated above, the decisions of the court are uniform to the extent of allowing for administrative rulemaking, as long as standards are set by the legislature. They are not uniform as to the adequacy of the
standards that the legislature is constitutionally bound to provide. In the case of Rajnarain Singh v.
Chairman, Patna Administration, it was held that the power to extend laws and modify a section for
application to another area amounts to delegating the power to change the policy of the Act, which is an
essential legislative function, and hence cannot be delegated.
Legislative policy can be found from the purpose of an enactment. In Harishankar Bagla v. State of
MP, the court declared Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 to be intra
vires as it held that the legislative policy has been laid down. It read the policy from the preamble of the
Act. A similar view was adopted in the case of Edward Mills v. State of Ajmer, wherein, power was
delegated to the administrative authority to add any industry within the ambit of the Minimum Wages
Act, 1948. The court held that there is no excessive delegation as the purpose of the Act, which was to
avoid exploitation of labour due to unequal bargaining power, provided sufficient policy guideline for
executive to act. Similarly, in Charan Lal Sahu v. Union of India, legislative policy was read in the
purpose of the Act. The case was related to the Bhopal Gas Disaster (Processing of Claims) Act, 1985,
which was challenged on the ground that government was authorized to enter into compromises
without providing any legislative policy guideline.
However, an exception can be seen in Hamdard Dawakhana v. Union of India, wherein, the apex court
held that the delegation of power to include any disease within the list of diseases for whom
advertisement were banned, to be excessive in nature. The court held that nowhere in the legislation,
any policy has been laid down to guide the conduct of the administrative authorities. It is noticeable that
the preamble of the impugned act stated that the act was to prevent mischief done to patients suffering
from incurable diseases through advertisements claiming magic remedies. This decision of the court is
not in consonance with its earlier position. Title and preamble of the Act could have been read to
determine the legislative policy. Also, certain diseases already mentioned under the act could have
served as a standard for inclusion of other diseases.
In Gammon India Ltd. v. Union of India, Section 34 of the Contract Labour (Regulation and Abolition)
Act, 1970 provided power to the Central government to make provisions to give effect to the provisions
of the Act, as appeared to it to be necessary for removing the difficulty. The Supreme Court held that
there is no excessive delegation under Section 34 as it does not contemplate any alteration in the Act,
but merely provides for its proper implementation.
In Avinder Singh v. State of Punjab, imposition of tax by the State government under Section 90(5) of
the Punjab Municipal Corporation Act, 1976 was challenged on the grounds of excessive delegation. It
was argued that the Act does not provide any policy for fixing of the rate of tax, amounting to abdication
of essential legislative functions by the legislature. The Court took a very liberal view and held that in
light of the limited functions performed by the Municipal Corporation, and language of the section,
collection for the purpose of the Act, to be sufficient policy guideline. This decision is criticised as
going too far to determine legislative policy.
In M/S Devi Das v. State of Punjab, Section 5 of the Punjab General Sales Tax Act, 1948, was
invalidated since an uncontrolled power was conferred on the Provincial Government to levy a tax on
turnover of a dealer at such rates as the said Government might direct. Under this Section, legislature
practically effaced itself in the matter of fixation of rates and it did not give any guidance either under
that Section or under any provisions of the Act.
In Harakchand v. Union of India, a clause in Gold Control Act was declared invalid on the ground of
excessive delegation. The Act empowered Administrator to authorize such person as he thinks fit to
also exercise all or any powers exercised by him under the Act and different persons may be
authorized to perform different powers. Reviewing the various provisions of the Act, the Court found out
that the power conferred on the Administrator is legislative in character and extremely wide and
suffered from excessive delegation of legislative power.

Thus, we can observe that the trend of judiciary is towards validation of delegated legislations. Courts
have held broad general statements to be providing sufficient legislative policy. The legislative policy
may be express or implied and can be inferred from a variety of sources including the title, preamble,
purpose, and nature of the Act.

Conclusion