INTRODUCTION
One of the advances in the realm
of administrative process made during these days is that apart from 'pure'
administrative function, the executive performs legislative function as well.
Due to a number of reasons, there is rapid growth of administrative
legislation. Garner[1]
rightly observes that "It is perhaps more realistic to say that the
Government secures from Parliament such subordinate legislative powers as it
wishes for itself”. A trend very much in vogue to day in all democratic
countries is that a good deal of legislation takes place in government
departments outside the Houses of Legislature.
This type of activity is known as
"Delegated Legislation". Generally, what happens is that legislature
enacts a law covering only general principles and policies relating to the
subject in question and confers
rule-making power on the government or some other administrative agency. This
is so because the direct legislation of parliament is not complete. The Executive
is given power to supplement the laws made by the Legislature. The result is that the technique of delegated
legislation is so widely used in
modern time as a process of government that there is no
statute passed by the legislature to-day which does not delegate some power of
legislation to the Executive.
Sir Cecil Carr is, therefore right
when he says that "the delegated legislation
is so multitudinous that any statute book will not only be incomplete but even
misleading unless it be read along with the delegated legislation which
amplifies and amends it."[2]
Thus, delegated legislation means
the law made by the executive under the powers delegated to it by the
legislature.
FACTORS LEADING TO THE GROWTH OF DELEGATED LEGISLATION
Delegated legislation is not an
isolated phenomenon. Numerous factors are responsible for its growth. The
traditional theory of 'laissez faire' has been given up by every state
and the old 'police state' has long ceased to regard its role in the social and
economic life of the community as that of a 'glorified policeman' and now has
become a welfare state. Because of such a radical change in the philosophy as to
the role to be played by the state, its functions have tremendously increased
in promoting the welfare of its citizens from cradle to grave. Consequently,
delegated legislation has become indispensable. As stated by the Committee on
Ministers' powers the following factors are responsible for the rapid growth of
delegated legislation at large scale:
(1) Pressure upon Parliamentary time
As there is phenomenal increase
in functions of state, the bulk of legislation is so great that it is not
possible for the legislature to devote sufficient time to discuss all the
matters in detail. Therefore, legislature passes skeleton legislation
containing general policy and empowers the executive to fill in the details,
"thus giving flesh and blood to the skeleton so that it may live"[3] by making necessary rules, regulations,
bye-laws etc. Lawmaking is not a turn key project, readymade in all detail and
once this situation is grasped the dynamics of delegation easily follow.[4] The Committee on Ministers'
Powers has rightly remarked: "The
truth is that if Parliament were not willing to delegate law-making power,
Parliament would be unable to pass the kind and quality of legislation which
modern public opinion requires."
(2) Technicality
Sometimes, the subject-matter of legislation is of a
technical nature and requires consultation of experts. Members of Parliament
may be best politician but they are not experts to deal with highly technical
matters which are required to be handled by experts. In such cases the
legislative power may be delegated to experts to deal with the technical
problems. Legislation concerning atomic energy, nuclear energy, gas, drugs or
electricity may be quoted as illustration of such technicalities.
(3) Flexibility
Parliament does not function continuously. At the time
of passing any legislative enactment, it is not possible to foresee all the
contingencies. Therefore, power is necessarily required to be given to the
Executive to meet the unforeseen contingencies or to adjust new circumstances
arising frequently. While parliamentary process involves delays, delegated
legislation offers rapid machinery for amendment. Police regulations and
certain economic regulations relating to bank rate, import and exports, foreign
exchange etc. are instances of such situations.
(4) Experimentation
Ordinary legislative process suffers from the
limitation of lack of viability and experimentation. Delegated legislation
enables the executive to experiment. The method permits rapid utilisation of
experience and implementation of necessary changes in the application of the
provisions in the light of such experience. If the rules and regulations are
found to be satisfactory, they can be implemented successfully. On the other
hand if they are found to be defective, the defects can be cured immediately.[5]
(5) Emergency
In times of emergency, quick action is required to be
taken. An emergency may rise on account of war, insurrection, floods,
epidemics, economic depression and the like. Legislative process is not
equipped to provide for urgent solution to meet the situation. It is,
therefore, necessary that executive must have power that may be used instantly.
Delegated Legislation is the only convenient remedy.[6]
(6) Confidential matters
In some situations public interest demands that the
law must not be known to any body till it comes into operation. Rationing
schemes or imposition of import duty or exchange control are such matters.
(7) Complexity of modern administration
Owing to the complex structure of society, modern
administration has become complex. It is assuming more and more responsibility
in promoting the welfare of the citizens, supervising their health, education
and employment, regulating trade, industry and commerce; and providing a great
variety of other services. In this way the complexity of modern administration
and the expansion of the functions of state of socio-economic sphere have
rendered it necessary to resort to new forms of legislation and to give wide
powers to various agencies on suitable occasions. It is necessary that
administration should be given ample power to implement socio-economic policies
so that immediate action can be taken. By resorting to traditional legislative
process, the entire object may be frustrated by vested interest and the goal
may not be achieved at all.[7]
Criticism of
the growth of Delegated Legislation
There was a time when the growth
of delegated legislation was criticised as undemocratic.[8] It was described as an
extension of the despotic powers of bureaucracy. But, with change in time, much
of the antipathy has died down. Ideas about it have changed. It is now
considered as the natural reflection in the sphere of constitutional law, of
changes in ideas of government, resulting from changes in political, social,
and economic thinking, and of the changes brought in our lives owing to
scientific discoveries and technological advances.
However, one must not lose sight
of the fact that delegated legislation suffers from several defects as well.
Constitutional legitimation of unlimited power of delegation to the executive
by the legislature may, on occasion, be subversive to responsible government
and erosive of democratic order.[9]
Many a time, the legislature
passes laws in “skeleton" form containing only the barest of general
policies and leaves everything else to the discretion of administrative agency.
Therefore, the administration armed with law-making power threatens to
overwhelm the little man by trampling upon life, liberty land property. The
executive gets a blanket cheque to do whatever it likes.
The system thus becomes
undemocratic giving rise to the danger that the government may misuse its
powers. The result is that there is wide spread suspicion and apprehension that
civil and personal liberties
which are democratic values may be endangered by an unbridled use of the
technique of delegated legislation by the administration. Further-more, if
law-making is taken over by the government it may make its administration by
barrel of the secretariat pen.[10] Therefore, if the technique
of delegated legislation is to serve its laudable task, it is necessary to
devise control and safeguards so that the dangers and risks of abuse inherent
therein may be minimised. Moreover, the question of the desirability of
subordinate legislation is "far more a matter of politics than of
Administrative Law."[11] The question, therefore, is
not about the existence of delegated legislation, but of its control.
Classification of Delegated
Legislation
There are
several ways for classifying delegated legislation-
I. Title
based classification
Parliament does not follow any
particular policy in choosing the forms of delegated legislation. It is
therefore, that delegated legislation appears in several forms viz., rules,
regulations, orders, notification, bye-law, scheme and direction.
The Committee on Minister's
Powers recommended for the simplification of nomenclature. It suggested for
confining the term 'rule' to the statutory instrument regulating procedure, the
term 'regulation' to describe the substantive administrative rule-making and the
term 'order' to be confined to instruments exercising executive and quasi- judicial
decisions. .
II. Nature
based classification
Delegated legislation may also be
classified on basis of the nature and extent of delegation of legislative
power. According to the Committee on Ministers' powers, there are two types of
parliamentary delegation:
1. Normal Delegation
There are two types of normal delegation:
A. Positive delegation.-Where the limits are clearly defined in the Parent
Act, it is called positive delegation.
B.
Negative delegatlon.-Where the delegated
power does not include power to do certain things, it is known as negative
delegation e.g. power to legislate on matters of policy or power to
impose tax.
2. Exceptional Delegation.
Exceptional delegation is also known as Henry VIII
clause. Instances of exceptional delegation may be as follows:
A.Power
to legislate on matters of principle.
B. Power to amend Acts of Parliament.
C. Power giving such a wide discretion that it is almost
impossible to know the limits.
D.Power
to make rules which cannot be challenged in a court of law.
Delegated
Legislation In Britain
(i) Absolute
Delegation
In Britain, there prevails the
principle of sovereignty of Parliament. This doctrine implies that Parliament
is supreme and has unlimited power to make any law. Consequently Courts cannot
question parliamentary law on any ground. In R. v. Halliday[12],
it has been rightly observed, "The British Constitution has entrusted
to the two Houses of Parliament, subject to the assent of the king, an absolute
power untrammelled by any instrument obedience to which may be compelled by
some judicial body." Parliament may accordingly delegate .to any extent
its powers of law-making to an outside authority. The limits of delegated legislation
In the British Constitution, if there are to be any, therefore remain a
question of policy and not a justiciable issue to be decided by the courts of
law. The doctrine of excessive delegation has no application in Britain.
(ii) Remedy in the
hands of Parliament
An important point to note is
that in Britain the remedy lies in the hands of Parliament itself. Parliament
can control the delegation of power by it if it so pleases. There is no
external agency to compel Parliament to do so. It is not necessary for
Parliament to lay down in a delegating statute any standard, policy or norm for
guiding the delegate in exercising the power entrusted to him. The delegate may
be left free to draft delegated legislation in any way he likes. He can evolve
his own policy or standard in exercising delegated power.
However, sovereignty of
Parliament does not mean that there are no principles to which the practice of
delegation must conform. It has been suggested by the Committee on Minister's
Powers: "The precise limits of law-making power which Parliament intends
to confer on a Minister should always be expressly defined in clear language by
the statute which confers it: When discretion is conferred its limits should be
defined with equal clearness." The committee, it should be noted,
expressed a principle basically similar to standard requirement.
Delegated Legislation in U.S.A.
(i) Delegation in Theory
In American Constitution we find
a different principle in operation. The position is different in the sense that
under the Constitution of U.S.A., delegated legislation is not recognised in
theory because of two doctrines:
(a) The doctrine of separation of powers
The U.S. Constitution is based on
the doctrine of separation of powers. By Article 1, legislative power is
expressly conferred on the Congress, and the courts have power to interpret the
Constitution and declare any statute unconstitutional if it does not conform to
their views of the Constitution. In the leading case of Field v. Clark[13]
the American Supreme Court observed:
"The
Congress cannot delegate legislative power to the President is a principle
universally recognised and vital to the integrity and maintenance of the system
of government ordained by the Constitution."[14]
(b) Delegatus non potest delegare : A delegate
cannot further delegate
Besides the doctrine of separation of powers, the U.S.
Supreme Court has also invoked the doctrine of delegatus non potest delegare
against delegation by the Congress. The doctrine means that a delegate
cannot further delegate its powers. As the Congress gets power from the people,
and is a delegate of the people in that sense, it cannot further delegate its
legislative power to the executive or to any other agency, Legislatures stand
in this relation to the people whom they represent. Hence, it is a cardinal
principle of representative government, that legislature cannot delegate the
power to make laws to any other body or authority.[15]
Delegatus non protest delegare is a fundamental
principle of delegation jurisprudence. Clarifying the scope and limit of this
principle, the Court held that the Central Government can delegate any of its
statutory power to the State Government, if permitted by law. However, two
factors would determine its validity: (i) whether subdelegation is authorised by
statute either expressly or impliedly, (ii) whether, excise of sub-delegation
is within the scope and limit of delegation, meaning thereby that even if
statutory power to delegate functions is expressed in wide general terms it
will not necessarily extend to everything. The Court explained that implied
sub-delegation is commonly not the characteristic found in peace time
legislation.[16]
Applying the principle, the Court held that if a guideline for determining inter
se seniority was to be laid down, the State alone could do so in terms of
Article 162 of the Constitution.[17]
(ii)
Delegation in Practice
In theory, it was not possible for the Congress to
delegate its legislative power to the executive. However, strict adherence to
the non-delegation doctrine was not practicable. Due to increase in
governmental functions, it was impossible for the Congress to enact all the
statutes with all particular details. The Supreme Court recognised this reality
and tried to create "a balance between the two conflicting forces:
doctrine of separation of powers barring delegation and the inevitability of
delegation due to the exigencies of the modern government.[18] The most that can
be asked under the separation of powers doctrine is that the Congress lay down
the general policy and standards that animate the law, leaving the agency to
refine those standards, 'fill in the blanks', or apply the standards to
particular cases.[19]
Thus, pragmatic considerations have prevailed over theoretical
objections. With the change in time, the courts have relaxed the rigours
of the doctrine of separation of powers and permitted broad delegation of
powers provided that the Congress itself should lay down policies or standards
for the guidance of delegate. The Congress should not give a blank cheque to
the Executive to make any rules it likes. If this is done, it would amount to
an abdication of functions by the Congress. The point to be noted is that if
Congress transfers to others "the essential legislative functions with
which it is vested" the statute doing so will be held unconstitutional.
The test in the words of Justice Cardozo is : "to
uphold the delegation there is need to discover in terms of the Act a standard
reasonably clear whereby the discretion must be governed.”[20] If the statute
contains no standard to limit delegation of power, it amounts to giving a blank
cheque to make law in the delegated area of authority and, thus, the agency
rather than the Congress becomes primary legislator. The working of this rule
is illustrated with reference to a few cases.
In Panama
Refining Co. v. Ryan,[21]
popularly known as the Hot Oil case, Congress authorised the
President to ban oil in inter-state-commerce when it was produced in excess of quota fixed by each state.
The policy of the Act was "to encourage national industrial recovery"
and "to foster fair competition". The majority of the court held that
''the Congress has declared no policy, has established no standard, has laid
down no rule". Accordingly the delegation in favour of the President was
impermissible and the Act was unconstitutional.
Delegated Legislation in India
(i)
Pre-Constitution Period.
As regards pre-Constitution
period relating to delegated legislation in India, Queen v. Burah[22] is considered to be the
leading authority propounding the doctrine of conditional legislation. In 1869,
the Indian legislature passed an Act purporting to remove the district of Garo
Hills from the jurisdiction of the civil and criminal courts and the law applied
therein, and to vest the administration of civil and criminal justice within
the same district in such officers as the Lieutenant-Governor of Bengal might
appoint for the purpose. By section 9, the Lieutenant-Governor was empowered
from time to time, by notification in the Calcutta Gazette, to extend, mutatis
mutandis, all or any of the provisions contained in the Act to the Jaintia,
Naga and Khasia Hills and to fix the date of application thereof as well. By a
notification dated October 14, 1871, the Lieutenant Governor extended all the
provisions of notification which was challenged by Burah who was convicted of
murder and sentenced to death.
The High Court of Calcutta by a
majority upheld the contention of the appellant and held that section 9 of the Act
was ultra vires the powers of the Indian Legislature. In the opinion of
the Court, the Indian Legislature was a delegate of the Imperial Parliament and
as such further delegation was not permissible.
Thereupon the Government appealed
to the Privy Council. The Act was held valid by the Privy Council. It was held
that the Indian Legislature was not an agency or delegate of Imperial
Parliament and it had plenary powers of legislation as those of Imperial
Parliament. It agreed that the Governor-General in Council could not, by
legislation create a new legislative power in India not created or authorised
by the Council's Act of Imperial Parliament. However, in fact it was not done.
It was a case of only conditional legislation, as the Governor was not empowered
to pass new laws but merely to extend the provisions of the Act already passed
by the competent legislature upon fulfillment of certain conditions. .
The decision of the Privy Council
is open to two different interpretations. One interpretation is that since the
Indian legislature ·is not a delegate of British Parliament, there is no limit
on the delegation of legislative power. But the other interpretation is that
since Privy Council has validated only conditional legislation, therefore,
delegation of legislative power is not permissible.[23]
The question of constitutional
validity of delegation of powers came for consideration before the Federal. Court
in Jatindra Nath Gupta v. Province
of Bihar.[24]
In this case the validity of section 1 (3) of Bihar Maintenance of Public
Order Act, 1948 was challenged on the ground that it empowered the Provincial
Government to extend the life of the Act for one year with such modification as
it may deem fit. The Federal Court held that the power of extension with modification
is not a valid delegation of legislative power because it is an essential
legislative function which cannot be delegated. In this way for the first time
it was ruled that in India Legislative powers cannot be delegated.[25]
(ii)
Post-Constitution Period
(a) Constitutionality of
Delegated Legislation. - As the decision in Jatindra Nath case had created
confusion, the question of permissible limits of delegation of legislative
power became important. Therefore, in order to get the position of law clarified,
the President of India sought the opinion of Supreme Court under Article 143 of
the Constitution. The question of law which was referred to the Supreme Court
was of great Constitutional importance and was first of its kind. The provision
of three Acts, viz.,
(i) Section 7 of the Delhi Laws
Act, 1912;
(ii) Section 2 of the Ajmer-Mewar
(Extension of Laws) Act, 1947; and
(iii) Section 2 of the Part C States (Laws)
Act, 1950, were in issue in Delhi Laws Act Case, Re.[26]
There were a few Part C States. Delhi
was one of them. Part C States were under the direct administration of the
Central Government as they had no legislature of their own. Parliament had to
legislate for these States. It was, therefore, that Parliament passed a law,
the Part C States (Laws) Act, 1950.
The Central Government was
authorised by section 2 of the Part C States (Laws) Act, 1950 to extend to any
Part C State with such modifications and restriction as it thinks fit, any
enactment in force in a Part A State, and while doing so, it could repeal or
amend any corresponding law (other than a central law) which might be in force
in the Part C States. Really, it was a very sweeping kind of delegation.
The Supreme Court was called upon
to determine the constitutionality of this provision. All the seven judges who
participated in the reference gave seven separate judgments "exhibiting a
cleavage of judicial opinions on the question of limits to which the
legislature in India should be permitted to delegate legislative power".[27] By a majority, the specific
provision in question was held valid subject to two limitations:
(1) The executive cannot be
authorised to repeal a law in force and thus, the provision which authorised
the Central Government to repeal a law already in force in the Part C States
was bad; and
(2) by exercising the power of
modification, the legislative policy should not be changed, and thus, before
applying any law to the Part C State the Central Government cannot change the
legislative policy.
(b) Principles laid down in the Reference Case.
In Re Delhi Laws Act may be said
to be "Siddhanatawali" as regards constitutionality of
delegated legislation. The importance of the case cannot be under-estimated
inasmuch 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.[28] In this case it was
propounded:
(a) Parliament cannot abdicate or
efface itself by creating a parallel legislative body.
(b) Power of delegation is
ancillary to the power of legislation.
(c) The limitation upon
delegation of legislative power is that the legislature cannot part with its
essential legislative power that has been expressly vested in it by the
Constitution. Essential legislative power means laying down policy of law and
enacting that policy into a binding rule of conduct.[29]
(d) Power to repeal is
legislative and it cannot be delegated.
The theme of Re Delhi Laws Act
case is that essential legislative function cannot be delegated whereas
non-essential can be delegated.
Forms
of delegation
There are various forms of
delegated legislation. The reason for this is that there is no uniform pattern
of delegation in the delegating legislations. Although there are various forms
of delegation, the parameter for determining the question of validity is the
same, that is, the legislature must lay down the policy of the Act. It is
therefore that the doctrine of excessive delegation has been invoked in a large
number of cases to determine the validity of provisions delegating legislative
power. Some of these cases are discussed here to illustrate the working of the
principle. The cases have been classified from the point of view of the nature
of the power conferred under following broad categories:
(a) Amplification of policy.
(b) Modification.
(c) Removal of difficulties.
(d) Inclusion and Exclusion.
(e) Taxation.
These
categories are not mutually exclusive as they are governed by the same over all
consideration of the principle of "excessive delegation". The truth,
however, remains that due to the compulsions of modern administration, the
Courts have allowed extensive delegations of legislative power specially in the
area of taxation and welfare legislation. This
point will be clear from the following discussion of the cases in which the
validity of delegated legislation has been challenged on the ground of
excessive delegation.
(a) Amplification of policy
It is trite to say
that to some extent, delegated legislation involves abandonment of its function
by the legislature and enhancement of powers of administration. Many a time,
the legislature passes Acts in "skeleton" form containing only the
barest of general principles and leaves to the executive the task of not only
filling in "details" but even that of amplifying policies. The
legislature often uses broad-worded provisions, giving wide powers to the
delegate to make such rules as appear to it to be "necessary" or
"expedient" for carrying out the purposes of the Act without laying
down any standards to guide the discretion of the delegate and the delegate is
in substance given blank cheque to do whatever it likes in the delegated area
of authority. In reality, under the skeleton type of legislation, the flesh and
blood-not to mention the soul-of the scheme of legislative regulation are left
entirely to administrative discretion. The vires-the limits-of the authority
delegated have become so broad as to cover almost all administrative rulemaking
within the particular area of legislation.
A good example of amplification of policy is Section 3
of the Essential Supplies (Temporary Powers) Act, 1946. Section 3 of the Act
reads as follows:
The Central Government, so far as it appears to it to
be necessary or expedient for maintaining or increasing supplies of any
essential commodity, or for securing the equitable distribution and
availability at fair prices, may by notified order provide for regulating or
prohibiting the production, supply and distribution thereof and trade and
commerce therein.
The validity of Section 3 was challenged on the ground
of excessive delegation. Under this provision the executive was authorised to
promulgate delegated legislation not only to fill in details in the statute but
even to decide question of policy. However, in Hari Shanker Bagla v. State of Madhya Pradesh[30],
the Supreme Court upheld the delegation on the ground that the legislature has
laid down the essential principles or policy of the law, namely,
-"maintenance or increase of supply of essential commodities and securing
equitable distribution and availability at fair prices." Delivering the
judgment, Mahajan, C.J., observed:
"The preamble and
the body of sections sufficiently formulate the legislative policy and the
ambit and the character of the Act is such that the details of that policy can
only be worked out by delegating them to a certain authority within the
framework of that policy."[31]
In Bagla case[32]
the validity of Section 6 of the Essential Supplies (Temporary Powers) Act
was also challenged on the ground of excessive delegation of power to the
Executive. Section 6 declares that an order made under section 3 shall have
effect notwithstanding anything contained in, any Act or instrument other than
this Act. It was contended before the Court that the power would have the
effect to repeal by implication any existing law and, therefore such a wide
power could not be delegated on the authority of the Reference case. Rejecting
the contention the Court held that Section 6 does not either expressly or
impliedly repeal any of the provisions of the pre-existing law. The purpose is
simply to bypass them where they are inconsistent with the provision of the
Essential Supplies (Temporary Powers) Act and orders made under it. The Court
pointed out that even if it be
conceded, for the sake of argument, that an existing law stood repealed by the
extents of its repugnancy with the order made under Section 3, by implication,
then the repeal "is not by an act of the delegate" but it is by the
"legislative act of the Parliament itself", because it is Parliament
which has declared in Section 6 that an order made under section 3 "shall
have effect notwithstanding any inconsistency in this order with any enactment
other than this Act." In this way, judicial sanction was given to a very
broad delegation of power.
(b) Modification
Sometimes, a provision is made in the statute
conferring power on the executive to modify the existing statute itself. This
is really a drastic power as it amounts to amendment of the Act which is
legislative Act. In this way it makes the executive supreme even over the
legislature. But sometimes such power is necessary for flexibility of approach
to meet the changing circumstances. In Indian legislative practice the power to
modify statutes has mostly been delegated as sequel to the power of extension
and application of laws. Thus, under the powers conferred by the Delhi Laws
Act, 1912 the Central Government extended the application of the Bombay
Agricultural Debtors' Relief Act, 1947 to Delhi. The Bombay Act was limited in
application to the agriculturists whose annual income was less then Rs. 500 but
that limitation was removed by the Government.
Power of modification has also been given to
administrative authorities in cases which may be characterised as
"legislation by reference".[33] This is a device by which
the power to modify is delegated to make the adopted statute fit into the
adoptive statute. For example, section 21 of Excess Profits Act, 1940 provides
that the provisions of the section of Income Tax Act, 1922 mentioned therein
shall apply with such modifications as may be made by rules.
Varieties of Modification. - ln Hari Shanker Bagla v. State of Madhya Pradesh[34] the
provision was considered and held valid, which laid down that the delegated
legislation made under the enactment would be operative although inconsistent
with some other enactment.
In Banarsi
Das v. State of Madhya Pradesh,[35]
the provision which empowered the delegate to bring in certain sale
transactions under the purview of Sales-Tax Act was upheld against the
challenge of excessive delegation.
In Delhi
Laws Act case[36]
it was held that power may be conferred on the executive to extend
an enactment already in force in one area to other areas with
modification as the executive considers fit. But the power to modify the
underlying policy of Act is an essential legislative function and therefore
delegation of power to modify an Act without any limitation is not valid.
In Lachmi
Narain v. Union of India[37]
the Court has observed that the power to make "restrictions and
modifications" in the enactment sought to be extended is not a separate
and independent power but is an integral constituent of the power of extension.
This power exhausts itself once the enactment is extended, then the power of
modification cannot be exercised again.
The nature and extent of modification has been
clarified by the Supreme Court in N.C.J.
Mills Co. v. Asstt. Collector, Central Excises.[38]
In this case the Court said that the power to modify does not import the
power to make essential changes and that "it is confined to alterations of
a minor character and no change in principle is involved." In this way, if
the changes are not essential in character, the delegation is permissible. In Sri Ram v. State of Bombay[39],
power was given to the government to vary the ceiling area if it was
satisfied that it was expedient to do so in public interest. The Court upheld
such a broad statement of policy as 'public interest' sufficient to upheld the
vires of delegation.
(c) Removal of difficulties-(Henry VIII clause)
Sometimes, power is
conferred on the government to modify the existing statute for the purpose of
removing difficulties so that it may be brought into full operation. When the
legislature passes an Act, it cannot foresee all the difficulties which may
arise in implementing it. Legislature, therefore, introduces in the staturte a
"removal of difficulty" clause envisaging that government may remove
any difficulty that may arise in putting the law into operation.
Generally two types of
"removal of difficulties” clauses are found in the Indian statutes. One, a
narrow one which empowers the executive to exercise the power to remove
difficulties consistent with the provisions of the enabling Act. In such a
case, the Government cannot change any provisions of the statute itself; e.g., Section 128 of the States Re-organisation
Act, 1956 lays down as under:
If any difficulty arises in
giving effect to the provisions of this Act, the President may by order do
anything not inconsistent with such provisions which appears to him to be
necessary or expedient for the purpose of removing difficulty.
If the statute provides so, it is
not objectionable. According to Committee on Minister's Powers[40] the sole purpose of
Parliament in enacting such a provision is "to enable minor adjustments of
its own handiworks to be made for the purpose of fitting its principles into
the fabric of existing legislation, general or local" Sir Cecil Carr's[41] view is that the device is
draftsman's insurance policy in case he has overlooked something. In exercise
of such powers the government cannot modify the Parent Act nor can make any
modification which is not consistent with the Parent Act.[42]
The other type of "removal
of difficulties" clause is very broad and empowers the executive in the
guise of removal of difficulties to modify even Parent Act or any other Act. A
classic illustration of such clause is found in the Constitution, itself which
under Article 392 (1) authorised the President to direct by order that the
Constitution would, during such period, as might be specified have effect
subject to such adaptations, whether by way of modification, addition or
omission, as he might deem to be necessary or expedient. This is nicknamed as
Henry VIII Clause incorporated in the Constitution of India. Similarly, Article
372 of the Constitution conferred power of making adaptations and modifications
in the existing law to bring it in accord with the Indian Constitution.
However, it may be noted that such a provision is usually for a limited period.
(d) Inclusion and Exclusion
As a matter of common
practice, legislature passes law to confer power on the government to bring
individuals, bodies or commodities within, or to exempt them from, the purview
of a statute. In this way, the range of operation of a statute can be expanded
or reduced through the device of delegated legislation.
(i) Range of Inclusion
Sometimes, the legislature after passing the statute
makes it applicable, in the first instance to some areas and class of persons,
but empowers the government to extend the provisions thereof to different
territories, persons, bodies or commodities. The Minimum Wages Act, 1948 has
been passed, as mentioned in the preamble, "to provide for fixing minimum
wages in certain employment". The Act applies to the employments listed in
the schedule, but the government is empowered to add any other employment
thereto .and thus to extend the operation of the Act to that employment. The
legislature has not laid down any norms on which the government may exercise
its power to add any employment to the schedule. Even then, in Edward Mills Co. v. State of
Ajmer[43],
the Supreme Court held that the provision was valid as the policy was
apparent on the face of the Act which was to fix Minimum Wages in order to
avoid exploitation of labour in those industries wages were very low because of
unorganised labour or other causes.
In a number of cases,[44] the power to add to the
schedule has been upheld. The Punjab General Sales Tax Act, 1948 levied a
Purchase Tax on goods except the items mentioned in the schedule annexed. This
meant that if the government added an item to the schedule it became tax
exempt. In Babu Ram v. State
of Punjab[45]
the Supreme Court upheld the provision against challenge on the basis of
excessive delegation.
A statute may empower the executive to expand the
range of its operation through methods other than amending schedule. For
instance, the Essential Commodities Act, 1955 covers certain specified
commodities mentioned in the Act and further gives power to the Central
Government to declare any other commodity as 'essential commodity' and thus
making the Act applicable to it as well. In Mohamed Ali v. Union of India[46]
the Supreme Court upheld a provision of Employees' Provident Funds Act,
1952 empowering the Central Government to bring within the purview of the Act
such establishments as it might specify.
But where the Court does not find any policy for
guidance in the statute the provision is held invalid. Thus, in Hamdard Dawakhana v. Union of
India,[47]
section 3 of the Drugs and Magic Remedies (Objectionable Advertisement)
Act, 1954 was challenged. This provision prohibited an advertisement suggesting
that a medicine could be used for curing any veneral disease or any other
disease specified in the rules. The Court held that no standards or principles
had been laid down in this Act for specifying Many other disease" in the
rules and hence the power delegated to make rules was invalid.
(ii) Range of exclusion.
There are certain statutes which give power to the
govemment to exempt from their operation any persons, institutions or
commodities. Such a provision is invariably upheld. For instance, in Jalan Trading Co. v. Mill Mazdoor
Union,[48]
the Supreme Court held the provision valid, which authorised the Central
Government to exempt any establishment from the range of the operation of the
Act having regard to the financial position and relevant factors.
In Registrar
Co-operative Societies v. K Kunjabmu[49]
the Court upheld the validity of section 60 of the Madras Co-operative
Societies Act, 1932 which was a 'near Henry VIII clause."[50] Section 60 provides as
follows:
The State Government may by general or special order,
exempt any registered society from any of the provisions of this Act or may
direct that such provisions shall apply to such society with such modifications
as may be prescribed in the order.
Such a broad clause was held valid as the Court found
the policy of the Act stated in the preamble, viz., to facilitate the
formation and working of co-operative societies.
(e)
Taxation
Taxing power is an
inherent power of any State. In a democratic system, taxation is exclusively
the function of legislature. The fundamental canon of democracy is "no
taxation without representation." Taxation is, therefore, a strong weapon
in the hand of legislatures to control the executive. However, delegation has
permeated even the tax area. When legislature passes the statute to levy a tax,
it leaves some elements of taxing power to the executive. The doctrine of
excessive delegation is applied by the Court to determine the validity of the
delegation of taxing power. The permissible limits of a valid delegation of
taxing power can be comprehended by analysing the individual cases decided by
the Supreme Court.
Power may be delegated to government to exempt an item
from the purview of tax. In Orient Weaving
Mills v. Union of India,[51]
a provision authorising the Central Government to exempt any excisable
goods from duty was held valid against the plea of excessive delegation.
Power may be given to the Central Government to bring
additional transactions within the purview of a tax. In Banarsi Das v. State of Madhya Pradesh,[52]
delegation of power to the government to bring any goods within the purview
of Sales-tax Law was upheld.
Power to fix the rates to tax may be delegated to the
executive. In Devi Das v. State
of Punjab,[53]
the provision delegating power to the executive to determine the rate
of tax between the minimum and maximum, viz., between 1 % to 2% was held
valid.
Conditional
Legislation
Conditional legislation may be
defined as 'a statute that provides controls but specifies that they are to go
into effect only when a given administrative authority finds the existence of
conditions defined in the statute'.[54]
When conditional legislation is
passed by the legislature, the law is full and complete. No legislative
function is delegated to the executive. However, such Act is not brought into
force. It is left to the executive to bring the Act into operation on
fulfilment of certain conditions and for that reason the legislation is called
'conditional legislation.'
According to Cooley[55]"It is not always
essential that a legislative Act should be a completed statute which must in
any event take effect as law at the time it leaves the hands of legislative
department. A statute may be conditional, and its taking effect may be made to
depend upon some subsequent event."
CONCLUSION AND SUGGESTION
Delegated legislation is not an
isolated phenomenon. Numerous factors are responsible for its growth. The
traditional theory of 'laissez faire' has been given up by every state
and the old 'police state' has long ceased to regard its role in the social and
economic life of the community as that of a 'glorified policeman' and now has
become a welfare state. Because of such a radical change in the philosophy as to
the role to be played by the state, its functions have tremendously increased
in promoting the welfare of its citizens from cradle to grave. Consequently,
delegated legislation has become indispensable. Generally, what happens is that
legislature enacts a law covering only general principles and policies relating
to the subject in question and confers
rule-making power on the government or some other administrative agency. This
is so because the direct legislation of parliament is not complete. The Executive
is given power to supplement the laws made by the Legislature. The result is that the technique of delegated
legislation is so widely used in
modern time as a process of government that there is no
statute passed by the legislature to-day which does not delegate some power of
legislation to the Executive.
One of the advances in the realm
of administrative process made during these days is that apart from 'pure'
administrative function, the executive performs legislative function as well.
Due to a number of reasons, there is rapid growth of administrative
legislation. Garner rightly observes that "It is perhaps more realistic to
say that the Government secures from Parliament such subordinate legislative
powers as it wishes for itself”. A trend very much in vogue to day in all
democratic countries is that a good deal of legislation takes place in
government departments outside the Houses of Legislature. This type of activity
is known as "Delegated Legislation".
Bibliography
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Ø I.P.Massey, “Administrative Law”, 7th
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Ø J.J.R.Upadhaya, “Administrative Law”,
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Ø Basu, Durga Das and Kishore Sharma,
Brij, Introduction To The Constitution Of India, New Delhi : Prentice-Hall of India,
1998.
Ø Basu, Durga
Das, Shorter Constitution of India, 13th edition 2001, 2nd rep. 2002,
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Ø Bhatia, K. L., Federalism And Frictions
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[1] Administrative Law, 1985 p. 48.
[3] Garner, Administrative Law,
1985, p. 49.
[4] Avinder Singh v. State of
Punjab, AIR 1979 SC 321.
[5] Per Fazal Ali, J. in Delhi Act,
1912, Re, AIR 1951 SC 332.
[6] See Sukhdev Singh v. Bhagat Ram,
(1975) 1 SCC 421, 434.
[7] Fazal Ali, J.: Delhi Laws Act, 1912, Re AIR 1951 se 332 ; See also Brij Sunder v. First Additional District Judge, AIR
1989 SC 572.
[8] Lord Hewart, The New Despotism
(1929).
[12] 1917 AC 260.
[13] (1892) 143 US 649.
[14] Ibid, at p. 692 (Per
Hartan, J.), See also Springer v.
Phillipin Islands (1928) 277 US
189 ; Buckley v. Valco, (1976) 424 US 1.
[16] S. Samuel M.D. Harrison Malayalam v. Union of India.
(2004) 1 see 256.
[18] Indian Law Institute: Cases
and Materials on Administrative Law in India, 1966 Vol. 1 pp. 188-89.
[19] Rehniquist, J. in Industrial
Deptt. v. American Petroleum
Institute, (1980) 448 U.S. 607 (675).
[21] Ibid.
[22] (1878) 3 AC 889.
[23] AIR 1949 FC 175.
[24] AIR 1949 FC 175.
[25] Delegated Legislation in India,
p. 81 (1964) : Indian Law Institute, New Delhi, Publication.
[26] AIR 1951 SC 332.
[28] Ibid.
[29]
Indian Law Institute, Cases and materials on Administrative Law in India,
1966, p. 220.
[30] AIR 1954 SC 465.
[31] Ibid.
[32] Ibid.
[34]
Text, supra.
[35] AIR 1958 SC 909.
[36] Text, supra.
[37] AIR 1976 SC 714.
[38] AIR 1971 SC 454.
[39] AIR 1959 SC 459.
[42] Jalan Trafiing Co. v. Mill MazcJoor
Sabhll. AIR 1967 SC 691; Sinai
v. Union of India. AIR 1975 SC 797.
[43] AIR 1955 SC 25.
[44] Banarsi Das v. State
of Madhya Pradesh, AIR 1958 SC 909; Sable Waghire & Co.
v. Union of India. AIR
1975 SC 1172.
[45] AIR 1979 SC 1475.
[46] AIR 1964 SC 980.
[47] AIR 1960 SC 554.
[48] AIR 1967 SC 691.
[49] AIR 1980 SC 350.
[50] Per Chinnappa Raddy, J.
[51] AIR 1963 SC 89.
[52] AIR 1958 SC 909.
[53] AIR 1967 SC 1895.
