Beruflich Dokumente
Kultur Dokumente
Part B : -
1. Delegated Legislation in India
2. Forms of Delegated Legislation
3. Requirement of Delegated Legislation
4. Advantages of Delegated Legislation
5. Disadvantages of Delegated Legislation
Part C: -
1. Permissible Delegation
2. Impermissible Delegation
3. Sub- Delegation
4. Conditional Delegation
Part D: -
1. Constitutional Validity of Delegated Legislation in India
PART – A
(Legislature in India)
The piece of
The technique of BOTH ARE KNOWN
legislation made by
delegating AS DELEGATED
the Government or
legislative power administrative LEGISLATION
authority
Usually, what happens is that the legislature enacts a law covering only the general
principles and policies relating to the subject matter & confers rule-making power
on the government or on some administrative authority.
Definition of Delegated Legislation: -
1. According to Salmond: -
“Delegated Legislation is that which proceeds from any authority other than
the sovereign power & is therefore dependent for its continued existence &
validity on some superior or supreme authority.”
“Today the question is not whether delegated legislation is desirable or not, but
what safeguards & controls can be introduced, so that the power delegated is not
misused or misapplied.”
PART - B
Delegated Legislation in India: -
One of the most significant developments in administrative law is growth in the
legislative powers of the executive. In constitutional theory, the law making
function essentially belongs to the legislature as the legislature consists of
representatives of people & legislates on their behalf.
Over the years, however, the centre of gravity of power has shifted from the
legislature to the executive. In India the development of Delegated Legislation can
be classified under two eras: -
1. Pre - Constitutional Era
2. Post - Constitutional Era
2. Technicality: -
Since most of the present day activities of the State relate to socio-economic
matters, legislation tends to be quite technical & complex & therefore expert
knowledge is required to work out the details to fully implement the Act in
view. This can be done better by specialists in the administration rather than by
legislators who are mostly generalists and not experts in these matters.
3. Flexibility and Experimentation: -
The system of delegated legislation has become popular because it has the
advantages of flexibility, elasticity and opportunity for experimentation.
Usually, act present many socio- economic schemes at the legislative stage are
experimental in nature & it is difficult to assume/foresee what problems would
arise in future in working them out in practice. Therefore, the Parliament
frames the broad principles of the Act & delegates legislative power to the
executive for detailing. This detailing is a task of experimentation done by
executive in form of framing rules, regulations, byelaws etc. to fulfill the
objective of Act and making the Act effective for unknown future conditions
without amending the main Act passed by the Parliament.
In other words, it means that the details of the Act need to be constantly
adjusted by the executive for sustaining the utilization of the Act and for
avoiding repetitive amendments in the main Act.
4. Emergency situations: -
Quick action is needed in times of emergencies like war, internal disturbances,
floods, epidemics, strikes, lock outs, bands, terrorist attacks etc. The legislature
cannot meet at short notice & give out legislation immediately. Therefore it is
important to pre-arm the executive with necessary powers to take action at the
movement by framing and imposing needed rules and regulations according to
the situation.
For e.g. – The Defence of India Act, 1971
5. Secrecy: -
In some cases the public interest demands maintaining secrecy (For e.g. –
Demonetization in India) of the schemes or policies and should not be known
until the time fixed for their operation comes.
Other examples are – Rationing schemes etc.
PART – C
Permissible Legislation: -
(Functions which can be delegated)
Obviously, the legislature cannot delegate all its powers and functions to the
executive and administrative authorities. The following are the functions which can
be delegated by the legislature: -
1. Commencement of statute: -
An Act may validly provide that it would come into force on the “appointed
day”, i.e. on a day appointed by the government. As Sir Cecil Carr remarks –
the Legislature provides the gun and prescribes the target, but leaves to the
executive the task of pressing the trigger.1
2. Inclusion: -
Sometimes, the legislature passes an Act and makes it applicable, in the first
instance, to some areas and classes of persons, but empowers the
government to extend the provisions thereof to different territories, persons
or commodities, etc. For e.g. - the Essential Commodities Act, 1955 was
made applicable to certain specified commodities but empowered the
Central Government to declare any other commodity as an “essential
commodity” and to make the Act applicable to such commodity.
3. Exclusion: -
There are some statutes which empower the government to exempt from
their operation certain persons, territories, commodities, etc. For e.g. – S/36
of the Payment of Bonus Act, 1965 empowers the government to exempt
any establishment or a class of establishments from the operation of the
Act.2
4. Modification: -
There are several varieties of the modifying powers delegated are of
following types: -
1
Refer – MPVSA Act, 2000 – Chapter I – Preliminary – S/1(3) – Pg 1 – open note
2
Refer – SEBI Act, 1992 - Power of Exempt – S/28 – with Foot Note 127 – Pg 36 – open note
An Act sometimes contains a provision empowering the executive, in
certain circumstances, to modify some provisions thereof before
applying them to particular territories.
An Act sometimes contains a provision empowering the executive to
modify the schedule to a statute.
An Act may empower the government to apply to certain matters
under it provisions from another statute with necessary modification.3
6. Suspension: -
Some Acts give the government power to suspend or relax the provisions of
the Act in certain circumstances. For e.g. – S/48(1) of the Tea Act, 1953, the
Central Government is empowered under certain circumstances to suspend
the operation of all or any of the provisions of the said Act.
3
Refer – SEBI Act, 1992 – S/28A – modification – Pg 36 – open note
4
Refer – MPVSA Act, 2000 - S/11, 16, 23,35 – rules & regulations – open note;
5
Refer – MPVSA Act, 2000 – S/55& S/56 – Power to make rules & regulations – open note; Refer – SEBI Act, 1992-
S/29, 30 & 31- open note
10.“Removal of Difficulties” Henry VIII clause: -
As seen earlier, when the legislature passes an Act, it cannot foresee all the
practical difficulties which may arise in its implementation. Therefore, often
empower the government to make necessary changes to facilitate its
implementation.6
Impermissible Delegation7: -
(Functions which cannot be delegated)
Although delegation of its functions and powers by the legislature is valid in the
above mentioned circumstances, there are other functions and powers which
cannot be delegated, namely the following: -
2. Repeal of a law: -
The power to repeal a law is an essential legislative function which cannot
be delegated to the executive. Thus, if an Act were to contain a provision
under which the government had the power to repeal the Act, such a
provision would be ultra vires and void.
6
Refer – SEBI Act, 1992 – power to remove difficulties – S/34 – Pg 39 – open note; Refer – MPVSA Act, 2000 –
power to remove difficulties – S/54 – open note
7
Read with Constitutional validity of Delegated Legislation
executive to modify any Act as it pleases, i.e. an unlimited power to modify
a statute (which is an essential legislative function) cannot be delegated.
4. Exemption: -
The legislature cannot delegate an unlimited power on executive to exempt
any person/establishment/commodity whatsoever from the operation of a
statute.8
5. Removal of Difficulties: -
Only a narrow form of “removal difficulties” clause is valid, the same
assumes the proportions of a ‘Henry VIII clause’; it is liable to be struck
down.
6. Retrospective operation: -
Whether or not to give retrospective effect to a statute is a privilege the
legislature – and this essential function cannot be delegated. Thus, the
executive cannot be vested with a power to treat a statute as retrospective if
it deems it fit or expedient to do so.
8. Imposition of tax: -
The power of imposing a tax is necessarily a legislative function. Hence, this
power cannot be delegated to the executive. Under A/265 of the Constitution
of India no tax can be levied or collected except by the authority of law, and
here ‘law’ means – law enacted by competent legislature and not by the
executive.
8
Refer – MPVSA Act, 2000 – exemption – S/16(2) – open note
9. Ousting the jurisdiction of the courts: -
The enactment of a provision laying down that courts shall not have
jurisdiction in a particular matter is a purely legislative function – and
cannot therefore, be delegated to the executive.9
Excessive Delegation: -
It is well settled that essential & primary legislative must be performed by the
legislature itself and they cannot be delegated to the executive. Essential legislative
function consist of – determination of legislative policy and its formulation as a
code of conduct.
Essential function
Determination of Its formulation as a
of Legislature
legislative policy code of conduct
consist of
9
Refer – MPVSA 2000 – S/53 – Bar of jurisdiction – open note; Refer – SEBI Act, 1992 – S/15Y & 20A – jurisdiction –
open note
Chapter I – PRELIMINARY
Chapter II - ESTABLISHMENT OF THE SECURITIES AND
EXCHANGE BOARD OF INDIA
Its formulation as a Chapter III - TRANSFER OF ASSETS, LIABILITIES, ETC., OF THE
code of conduct EXISTING SECURITIES AND EXCHANGE BOARD TO THE BOARD
Chapter IV - POWERS AND FUNCTIONS OF THE BOARD
Chapter V - REGISTRATION CERTIFICATE
Chapter V A - PROHIBITION OF MANIPULATIVE AND DECEPTIVE
DEVICES, INSIDER TRADING AND SUBSTANTIAL ACQUISITION
OF SECURITIES OR CONTROL
Chapter VI - FINANCE, ACCOUNTS AND AUDIT
Chapter VI A - PENALTIES AND ADJUDICATION
Chapter VI B - ESTABLISHMENT, JURISDICTION, AUTHORITY
AND PROCEDURE OF APPELLATE TRIBUNAL
Chapter VII - MISCELLANEOUS
Essential legislative functions mean laying down the policy of the Act and enacting
that policy into a binding rule of conduct. In other words, the legislature must lay
down legislative policy and purpose sufficient to provide a guideline for
administrative rule making. The policy of law can be gathered from the history,
preamble, title, scheme of the Act or object clause.
Essential legislative functions are exercised by the legislature, all ancillary and
incidental functions can be delegated to the executive.
Courts may read down and interpret the disputed statute in a way as to avoid its
being declared unconstitutional. This is being done in view of the facts that today
delegation of legislative power has become a “compulsive necessity”. Delegation
of some part of legislative policy has become compulsive necessity due to the
complexities of modern legislation.
Subordinate Delegation: -
Meaning: -
When a statute confers some legislative powers on an executive and the executive
further delegates those powers to another subordinate authority or agency, it is
called “Sub- delegation”.
Thus in Sub-delegation a delegate delegates further. This process of sub delegation
may go through many stages.
Illustration: -
An important illustration of sub- delegation is found in Securities & Exchange
Board of India Act, 1992.
Section 30 of the Act empowers the SEBI Board to make regulations. This can be
said to be the first stage or “parent” delegation. Section 19 of the Act empowers
SEBI board to delegate its legislative function to any of its official or member.
This can be said to be the second stage or “descendant” delegation (sub –
delegation)10.
Object: -
The necessity of sub-delegation can be supported on the following grounds: -
1. Power of delegation necessarily carries with it the power of further
delegation.
2. Sub-delegation is ancillary to delegated legislation.
3. Any objection to the said process is likely to destabilize the function which
the legislature delegates to the executive.
10
Refer – SEBI Act, 1992 – S/30 & S/19 – Pg 38 & 32 – open note
Delegatus non potest delegare: -
In Barium Chemicals Ltd. vs. Company Law Board AIR 1976 SC 295: -
It was held that the maxim ‘Delegatus non potest delegare’ (a delegate cannot
further delegate) does not embody a rule of law. It merely lays down a rule of
construction of a statute. Hence, keeping in view the facts and circumstances of
each case, construction which would best achieve the purpose and object of the
statute should be adopted.
Express power: -
Where a statute itself authorizes an administrative authority to sub-delegate its
powers, no difficulty arises as to its validity since such sub-delegation is within the
terms of the statute itself.11
Implied Power: -
The question of dispute arises when there is no specific or express provision in the
statute permitting sub- delegation. In this regard, Griffith has rightly stated that – if
the statute is so widely phrased that two or more ‘tiers’ of sub-delegation are
11
Refer – SEBI Act, 1992 – Pg 32 – open note
necessary to reduce it to specialised rules on which action can be based, then it
may be the court who on its discretion decides to imply the power to make the
necessary sub-delegation legislation.”
Criticism: -
The practice of sub-delegation has been heavily criticised by jurists. It is well
established that the maxim delegatus non potest delegare applies in the field of
delegated legislation as it applies in judiciary and sub-delegation of power is not
permissible unless it is either expressed or necessarily implied.
Critics of sub-delegation attack this practice on the basis of the above maxim. As
pointed out by the Supreme Court in Barium Chemicals Ltd. vs. Company Law
Board AIR 1967 SC 295, the fact that a particular delegate was selected indicates
that he possess the necessary skill and enjoys a particular degree of confidence,
thereby creating a presumption that he should perform the act himself and not re-
delegate his authority to another.
Conclusion: -
As observed in Patchett vs. Leathem (1949) 65 LTR 69, ordinary legislation is
twice blessed, as it passes through both the Houses of Parliament. However, sub-
delegation is four times cursed: -
Firstly, it has not been considered by either House of Parliament;
Secondly, it is generally unpublished;
Thirdly, it is a jumble it has not been considered by is a jumble of legislative and
administrative provisions; &
Lastly, it may be expressed that it is not precise language of a statute.
Conditional Legislation12: -
Meaning: -
In Conditional Legislation, legislature makes the law. It is full and complete. No
legislative function is delegated to the executive. But the said Act is not brought
into force and it is left to the executive to bring the Act into operation on
12
Refer – MPVSA Act, 2000 – S/1(3) – open note
fulfillment of certain conditions or contingencies “contingent legislation.” 13 The
executive has to decide whether the necessary conditions required for the law to be
in operation have been satisfied or not & if they have been so, it should issue a
notification bringing the law into operation. This is called conditional legislation.
Categories: -
Conditional legislation may be classified into three categories: -
1. Where the legislation is “full & complete” but leaves its future applicability
to the executive authority.14
2. Where the legislation is enforced but leaves the power to be withdrawn from
operation of the Act in given area or in given situations to the executive
authority.15
3. Where the legislation leaves it to the executive authority to grant benefit of
the Act to one class depriving the rival class of such benefit.16
Illustrative cases: -
1. Field vs. Clark 36 L Ed 294 (1891): -
In this case, the President was empowered to suspend the operation of an
Act permitting free import of certain products in the US on being satisfied
that the taxes imposed upon such products were reciprocally unequal &
unreasonable. The Supreme Court held the Act valid on the ground that the
Act was complete and the President was given mere power to ascertain &
declare the operation of the Act.
13
Refer – Delegated Legislation – Pre Constitutional era
14
Refer – S/1(3)- MPVSA Act, 2000 – open note
15
Refer – Preventive Detention Law – Maintenance of Internal Security Act – where President (Executive head) has
power to withdraw the operation of the Act
16
Refer – the policy of Reservations
the constitutionality of S/9 on the ground that it is merely a conditional
legislation. This delegation is not delegation of legislative powers but a
delegation of power of determining as to whether certain conditions, which
legislature lays down, were fulfilled.
PART – D
17
Refer – Impermissible Delegation – Essential Legislative functions; Refer – Excessive Delegation – Essential
legislative function
18
A/143 – Power of President to consult Supreme Court if any question of law or fact has arisen or may arise,
which is of importance in public interest
19
The Constitution of India made India republic & declared it “Union of States”. The Constitution of India
categorized states into three types – Part A States- former governor’s provinces of British India; Part B States–
Princely State governed by Rajpramukh; Part C States – provinces and princely states governed by Chief
Commissioners; Part D States– governed by Lt. Governor
20
Refer – Permissible Delegation – application of existing laws & modification
21
Refer – Impermissible Delegation – Repeal of law
The importance of the Delhi Laws Act re, 1912 cannot be under estimated
as; on the one hand, it permitted delegation of legislative power by the
legislature to the executive; while on the other hand, it demarcated the extent
of such permissible delegation of power by the legislature.
In regard to this case, Jain & Jain reached to the following conclusion: -
First, keeping the urgent demand of the modern government in view,
Parliament in India need to delegate legislative power if they are to be
able to cope with multitudinous problems facing the country, for it is
neither practicable nor feasible to expect that each of the legislative
bodies could turn out complete & comprehensive legislation on all
subjects that need to be legislated upon.
Second, since the legislatures derive their powers from the written
Constitution which creates them, they could not be allowed the same
freedom as the British Parliament in the matter of delegation; some
limits should be set on their capacity to delegate.
3. Edward Mills Co. Ltd. vs. State of Ajmer AIR 1955 SC 25: -
In this case, the Supreme Court decided an interesting question arising under
the Minimum Wages Act, 1948. This Act contains a list of industries to
which the Act has been made applicable by Parliament, and the “appropriate
government” has been authorised to add any industry to which it would also
apply. The Supreme Court upheld the validity of this delegation, observing
that the legislative policy23 which was to guide in the selection of industries
is clearly indicated in the Act i.e. to fix minimum wages to avoid
exploitation of labour due to unequal bargaining power or other reasons.
22
Refer – Impermissible Delegation – Unlimited power of modification
23
Refer - Impermissible Delegation – Essential legislative Function; Refer – Excessive delegation- Essential
legislative function – Legislative policy
4. Jalan Trading Co. (P) Ltd. vs. Mill Mazdoor Sabha AIR 1967 SC 691: -
With reference to the “removal of difficulties” clause in S/37 of the Payment
of Bonus Act, 1965, which not only empowered the government to remove
the difficulties (by passing an Order), but also made such an Order final. The
Supreme Court held that the clause was invalid on the ground of excessive
delegation. The reasoning of the majority can be summed up as follows –
Firstly, the government was made the sole judge of whether any
difficulty had arisen.
Secondly, it was also the sole judge of whether it was necessary to
remove such a difficulty.
Thirdly, it was also the sole authority to decide whether its order was
consistent whether its order was consistent with the Act.
Lastly, such an order of the government was declared to be “final”.24
But later, the minority view was appreciated and followed.
5. M.P. High Court Bar Association vs. Union of India (2004) 11 SCC 766: -
The Supreme Court declared that under the Constitution, the power to
legislate lies with the legislature. Hence, the power to make laws cannot be
delegated by the legislature to the executive. In other words, a legislature
can neither create a parallel legislature nor destroy its legislative character.
Essential legislative functions must be retained by the legislature. It is
always open to the legislature to delegate executive ancillary power of rule
making.