Permissible and impermissible delegated legislation Pre constitutional and post constitutional position

1. DELEGATED LEGISLATION
PRE AND POST CONSTITUTION

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. 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. 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.

5. PERMISSIBLE AND
IMPERMISSIBLE DELEGATED
LEGISLATION

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. 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. 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. 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. 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. 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. *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.