Delegated legislation


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Permissible and impermissible delegated legislation
Pre constitutional and post constitutional position

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Delegated legislation

  2. 2. Introduction: According to the traditional theory, the function of the executive is to administer the law enacted by the legislature, and in the ideal state the legislative powers must be exercised exclusively by the legislature who are directly responsible to the electorate. Apart from the pure administrative function executive also performs legislative and the judicial function also. In England theoretically it is only parliament, which can make laws. Even in the United States of America where the doctrine of the delegated legislation has not been accepted in principal, in practice the legislature has entrusted legislative powers to the executive. Administrative legislation met with a rapid growth after World War II and in India during 1973 to 1977.
  3. 3. History of Delegation of Powers: Pre – constitutional Position: 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. The of 1833 vested the legislative powers exclusively in Governor – General – in council, which was an executive 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 Ac, 1935 was passed which contained an intensive scheme of delegation. The report of the committee on ministers’ powers was submitted and approved which fully established the case for delegation of powers and delegation of legislation was regarded as inevitable in India
  4. 4. Present Position: Though, our constitution was based on the principal of separation of powers, a complete separation of powers was not possible hence it maintained the sanctity of the doctrine in the modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other hand there are several provisions where the executive has been granted the legislative powers. For example the legislative powers of the president under the Indian Constitution are conspicuous. Under Article 123 the president has the power to promulgate the ordinances and unrestricted power to frame regulations for peace progress and good government of the union territory under Article 240. The Supreme Court of India has also upheld the delegation of legislative powers by the legislative to the legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration Committee.
  6. 6. Permissible Delegated Legislations: This type of delegations include those which Executive may exercise its power to legislate. 1.Supplying Details: If the legislative policy is formulated by the legislature, the function of supplying details may be delegated to the executive for giving effect to the policy. e.g. Section 3 of the All India Services Act, 1951 authorizes the Central Government to make rules to regulate conditions of service in the All India Services. 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. e.g., the Transfer of Property Act, 1882 was made applicable to the whole of India except certain areas, but the Government was authorized to apply the provisions of the Act to those areas also. Exclusion: There are some statutes which empower the Government to exempt from their operation certain persons, territories, commodities, etc. e.g., Section 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. Such provision introduces flexibility in the scheme of the legislation. The Legislature which is burdened with heavy legislative work is unable to find time to consider in detail hardships and difficulties likely to result in enforcing the legislation.
  7. 7. 3.Suspension: Some statutes authorize the Government to suspend or relax the provisions contained therein. e.g. under Section 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. 4.Application of existing laws: Some statutes confer the power on the executive to adopt and apply statutes existing in other States without modifications (with incidental changes) to a new area. There is no unconstitutional delegation in such cases, as the legislative policy is laid down in the statute by the competent legislature. 5.Modification: Sometimes, provision is made in the statute authorizing the executive to modify the existing statute before application. This is really a drastic power as it amounts to an amendment of the Act, which is a legislative function, but sometimes, this flexibility is necessary to deal with local conditions. 6.Framing of Rules: A delegation of power to frame rules, bye-laws, regulations, etc. is not unconstitutional, provided that the rules, bye-laws and regulations are required to be laid before the legislature before they come into force and provided further that the legislature has power to amend, modify or repeal them.
  8. 8. Henry VIII clause (Removal of difficulties): Power is sometimes conferred on the Government to modify the provisions of the existing statutes for the purpose of removing difficulties. When the legislative passes an Act, it cannot foresee all the difficulties which may arise in implementing it. The executive is, therefore, empowered to make necessary changes to remove such difficulties. Such provision is also necessary when the legislature extends a law to a new area or to an area where the socioeconomic conditions are different. It is nicknamed as the Henry VIII clause to indicate executive autocracy. Henry VIII was the King of England in the 16th century and during his regime he enforced his will and got his difficulties removed by using instrumentality of a servile Parliament for the purpose of removing the difficulties that came in his way.
  9. 9. Impermissible Delegated Legislations: The following functions, on the other hand, cannot be delegated by the Legislature to the Executive: 1.Essentiallegislative functions: Even though there is no specific bar in the Constitution of India against the delegation of legislative power by the legislature to the executive, it is now well-settled that essential legislative functions cannot be delegated by the legislature to the executive. In other words, legislative policy must be laid down by the legislature itself and by entrusting this power to the executive, the legislature cannot create a parallel legislature. 2.Repeal of law: Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the executive to repeal a law is excessive delegation and is ultra vires. 3.Modification: Power to modify the Act in its important aspects is an essential legislative function and, therefore, delegation of power to modify an Act without any limitation is not permissible. 4.Exemption: The aforesaid principle applies in case of exemption also, and the legislature cannot delegate the power of exemption to the executive without laying down the norms and policy for the guidance of the latter.
  10. 10. 5.Removal of difficulties: Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a Henry VIII clause and thereby delegate essential legislative functions to the executive, which could not otherwise have been delegated. 6.Retrospective operation: The legislature has plenary power of law making and in India, Parliament can pass any law prospectively or retrospectively subject to the provisions of the Constitution. But this principle cannot be applied in the case of delegated legislation. 7.Future Acts: The legislature can empower the executive to adopt and apply the laws existing in other States, but it cannot delegate the power by which the executive can adopt the laws which may be passed in future, as this is essentially a legislative function. 8.Imposition of Taxes: The power to impose a tax is essentially a legislative function. Under Article 265 of the Constitution no tax can be levied or collected save by authority of law, and here ‘law’ means law enacted by the competent legislature and not made by the executive. 9.Ouster of jurisdiction of courts: The legislature cannot empower the executive by which the jurisdiction of courts may be ousted. This is a pure legislative function. 10.Offences and Penalty: The making of a particular act into an offence and prescribing punishment for it is an essential legislative function and cannot be delegated by the legislature to the executive. However, if the legislature lays down the standards or principles to be followed by the executive in defining an offence and provides the limits of penalties, such delegation is permissible.
  11. 11. The basic criteria for this is* Legislature to lay down Guidelines for exercising DelegationThe legislature while delegating such power is required to lay down the criteria or standard so as to enable the delegatee to act within the framework of the statute. * Delegation to be Reasonable and Not Unlimited Justice Mukherjea, in his opinion, stated:"It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. *Delegatee not to Modify the Basic Legislation As regard delegated power to "restrict and modify", it was held:"delegation cannot extend to the altering in essential particulars of laws which are already in force in the area in question." "The power to 'restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character. *
  12. 12. *Uncanalised and Uncontrollable Power not permissible under delegation The legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. *Essential functions cannot be delegated It was observed that it is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power, that the Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority, and that the primary duty of law making has to bedischarged by the legislature itself but delegation may be resorted to as asubsidiary or an ancillary measure.