DELEGATED LEGISLATION IN INDIA
Delegated legislation is one of the most hotly debated issues in the domain of the legal theory because of its numerous designations. Only after the growth of administrative process in the 20th century only, the delegated legislation has assumed incredible scopes as well as importance.
In this paper various definitions, meanings as well as the reasons behind the need of delegated legislation are discussed.
Delegated legislation is a law made by an executive under the authorities provided by principal legislation i.e, parliament in order to administer and implement the necessities. It refers to those laws made by individuals or bodies to whom parliament has delegated law-making power, Where Acts are made by Parliament, a Principal Act may make provision for Subsidiary Legislation to be made, and will particularly defines who has the power to do so under that Act. All subordinate legislation is subject to come under control of the judiciary in case of the doctrine of ultra vires. These are always interpreted in the light of parent act and thus it is presumed that particular words are used in the similar sense as in that Act.
Further, the paper deals with critical analysis of skeletal delegation which clearly provides- this legislation must not be valid generally because of the principle of excessive delegation, which lays down that legislative body, while delegating a power, must lay down guidelines for the enforcement of the power and delegate must carry out the function within a framework of those guidelines.
Delegated legislation Plays a very vital in the wake of the progress in the number of legislation and technicalities involved. But at the same time with the development in legislation there is a great necessity to control it too.
CHAPTER 1: INTRODUCTION
Delegated legislation is one of the most hotly debated issues in the domain of the legal theory because of its numerous designations. Only after the growth of administrative process in the 20th century only this delegated legislation has assumed incredible scopes as well as importance. Delegated or subordinate legislation is a law made by an executive under the authorities provided by principal legislation i.e, parliament in order to administer and implement the necessities. It is essential because the law can by local body or an expert has better understandings as compare to the legislature. It is also known as secondary legislation. The act which provides supremacies to the executive to do the legislation is often known as the parent act. Maximum of the delegated legislation is governmental and broadly comprises of orders in council as well as instruments of various names like regulations, orders schemes and directions made by ministers. All subordinate legislation is subject to come under control of the judiciary in case of the doctrine of ultra vires. These are always interpreted in the light of parent act and thus it is presumed that particular words are used in the similar sense as in that Act. This regulation is governed by the identical ideologies as those which govern the interpretation of statutes.2
“Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or empowering another to act as an agent or representative”. E.g. Delegation of Contractual Duties
Principle- The principle of the delegated legislation has been stated as the norms which has been recognized is that the legislature essentially offer the guidelines for the authority to whom the supremacy to make legislation is delegated. Simply we can also say that the controls to make laws passed on by higher authority to the lower authority.
According to M.P. Jain,
“the term ‘delegated legislation’ is used in two senses: (a) exercise by a subordinate agency of the legislative power delegated to it by the legislature, or (b) the subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by the legislature”3 The complexities of governing a developing society demand the delegation of some of the legislative functions to the lower authority such as ministers and administrative agencies. 4Due to the ever-increasing volume of the society, it’s quite difficult for the parliament to handle every piece of legislation which is needed in the form of primary one. That resulted into the delegated legislation which is produced by an ‘inferior body’ which nevertheless has force of law.
Tackling the complications of modern administration in an effective manner demands an atmosphere of difficulty. Parliament has to follow stringent legislative procedures to create a single law. Hence, it will be far from being flexible without delegating certain powers to the executive.5
CHAPTER 2: CLASSIFICATION OF DELEGATED LEGISLATION
In India Delegated legislation is usually expressed by the term ‘statutory rules and orders’. Though, this classification is not exhaustive as it appears in other forms too like regulation, bye- laws, notifications, directions etc. Here we will be dealing with five classifications-
DISCRETION BASED DELEGATION
Discretion may be conferred on the executive to bring some act into operation only on the fulfillment of some conditions.6On the basis of this classification administrative rule making can be further divided into –
- Conditional/contingent and
- Subordinate legislation
In the leading case of Field v. Clark7the president is authorised to suspend the operation of an act by the impugned Act which permits him to introduce free products in case he finds that the duties imposed upon the products of the US were reciprocally unequal and unreasonable. The US supreme court upheld the validity of the Act on the ground that president is mere agent of congress to ascertain and affirm the possibility upon which the will of the congress will succeed. Further it was held that the congress cannot delegate its power to make law, but it can make a law to delegate the power to regulate some aspects upon which the law aims to make its own act depend.
Subordinate legislation comprises of the discretionary elaboration of rules and regulations.
In the case King Emperor v. Benoari Lal Sarma8for the first time the Privy Council sustained the validity of the Governor General’s Ordinance of Special Courts. it had delegated the power in the field of extension of duration of ordinance in emergency, on the ground of conditional legislation. It was also observed by the Privy Council that it was a case of conditional legislation as the legislation was itself complete and whatever was delegated was the power to Act only on the fulfillment of certain requirements. In I.T.C Bhadrachalam Paperboards v. Mandal Gajanan Maharaj Sansthan9it was held that power deliberated on government to bring an Act into existence and grant exemption comes under conditional legislation not under delegated legislation.
AUTHORITY-BASED CLASSIFICATION (SUB-DELEGATION)
A statute may also authorize the executive to further delegate the powers conferred on it to its subordinate authority. This is known as ‘Sub-delegation’.10Any rule-making authority cannot delegate its authority unless it exists in the enabling Act. Such authorization can be either by necessary implication or express. 11If the authority further delegates its rule-making to other authority and grasps a universal control of a extensive nature over it, then there is no delegation in this case to entice the principle of ‘delegatus non protest delegare’. So the basic belief behind this maxim is that the discretion provided by the statute must be deliberated by the authority itself unless conflicting seems from scope, object or language of the statute. It is also found that sub-delegation is invalid if it is not authorized by the Parent Act. In A.K Roy v. State of Punjab12power to execute prosecution under Section 20(i) if the Prevention of Food Adulteration Act, 1954 was given to the state government but the act had not authorized the sub-delegation of power to other authority. Under Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 the same power of prosecution was delegated to the Food Inspector. It was held sub-delegation as ultra vires the parent Act.
NATURE-BASED CLASSIFICATION (EXCEPTIONAL DELEGATION)
Classification of rule-making power can be based on the nature as well as extent of delegation. Two types of parliamentary delegation is provided by the committee on ministers; powers:
- Positive- In this restrictions of delegation are clearly mentioned in the qualifying
- Negative- Under this the powers delegated does not contain authority to do some particular
It is also identified as Henry VIII clause. Under this delegation following powers are given- powers to legislate on principle’s matters or to amend as well as impose taxation on the act of Parliament. It also provide with the authority to make rules or regulations which cannot be questioned in a court of law. Also offers the Authority giving such a broad discretion that it is almost impossible to distinguish the boundaries.
For instance- section 7 of the Delhi Laws Act of 1912 under which regional Government was specified the power to spread, with some limitations and alterations as per the requirements any enactment in power in any area of India to the domain of Delhi.
This delegation was impugned in the Delhi Laws Act case13, where Supreme Court upheld that the exceptional delegation was not valid if the administrative authorities immensely restricted with the Rules of the Act and by the restrictions or amendment but the same was binding if did not disturb any vital change in the policy or rule of the Act.14
Administrative rule-making power can also be classified according to the particular purpose for which the power has been delegated. On the aforesaid basis, the classification can be as follows:
In the landmark case of Gwalior Rayon Co. vs. Asst. Commr. Of Sales tax15, the term skeleton legislation was defined as denoting a legislative act delegating the legislative power “without laying down any principle or policy for guiding the delegate.”16 The courts have applied the principle in a very flexible way rendering the validation of much skeleton legislation.
In the landmark case of Harishankar Bagla vs. State of M.P.,17 two sections of Essential Supplies (Temporary Powers) Act, 1946 were challenged. Section 3 of the act is a classic example of skeleton legislation which provides that Central Government may regulate or prohibit the production and supply of any essential commodity based on necessity of maintaining or regulating the supplies or maintaining their equitable distribution and availability at fair prices. However, Hon’ble Supreme Court of India while holding the provision valid, laid down that it is a “sufficiently formulated policy”, giving a “clear and sufficient guidance to the government to exercise its power.”18 It further clarified that nature of the statute is such that such modifications can only be done by a subordinate authority within the framework of the laid down policy.19 A similar provision was upheld by the SC in the case of Bhatnagars and Co. vs. Union of India.20
POWER TO MODIFY OR AMEND THE STATUTE
The legislature can, through delegated legislation confer upon executive to modify or amend the statute. The CMP considers such kind of delegation as an exceptional form of delegation.21Through amending, an act can be expanded or reduced by making alterations in the schedule of the act by the delegate. This has practical necessity so as to give flexibility to legislative approach and there has to be a balance stroked out between the danger of executive misusing its power and the need for delegating the power. However, procedural laws can neither enlarge nor curtail the substantive provisions of an act22 and also cannot change the basic policy underlying the act.23 The power to amend generally includes the power delegated to the executive to amend the schedule of an act so as to include or exempt certain people, institutes, objects, etc.
In the landmark case of Edward Mills and Co. vs. State of Ajmer24, provision of Minimum Wages Act, 1948, which gave power to the Central Government to add any other category of employment within it’s the schedule? The Supreme Court upheld the same and said that the provisions are clearly laid down so as to fix minimum wages so as to avoid the exploitation of labor and that conditions of labour vary from state to state and thus any such addition will be best done by the authority of that particular state.
POWER TO INCLUDE OR EXEMPT
First, the executive may be clothed with the power to increase the extent of operation of a statute by including certain people or commodities or bodies within its scope through methods except for amending the schedule. The classiest example of the same is the Essential Commodities Act, 1955 which vests Central Government with power to include any commodities within its ambit as t may deem fit. This is particularly essential to ensure flexibility of the statute with changing time and doing away with bulky process of amending the act every time a change is required.25 In the landmark case of Mohmedalli vs. Union of India26, a provision of Employees Provident Funds Act, 1952, empowered the Central Government to include any factory engaged in scheduled industry within the ambit of the act. The act thus, gives sufficient framework for execution of the authority. A provision of delegating legislation authorizing inclusion was struck down by the Supreme Court owing to inadequate guidelines provided in the case of Hamdard Dawakhana vs. Union of India.27 Second, the legislature may empower executive machinery to restrict the scope of a statute by exempting certain individuals or commodities from the ambit of its operation. Such delegation particularly have application in bringing flexibility to a statute since there may be difficulty in general applicability of provisions of an act and there occurs a need to restrict the scope of its operation with changing times. In the case of Jalan Trading Co. vs. Mill Mazdoor Union,28 a provision of Payment of Bonus Act, 1965 authorized the Government to exempt a class of establishments from the operation of the act owing to financial condition of the establishment and satisfaction of the government as to application of all or any of the provision of the act. The act has clearly laid down the policies and guidelines to be followed while implementing the aforesaid provision.29
TERRITORIAL EXTENSION OF A STATUTE
Another efficient way to delegate power to an executive authority is by extending operation of an act from e area in which its already operational to another area in which it is not mutatis mutandis. In the landmark case of Lachmi Narain vs. Union of India,30 section 2 of Union Territories Act was challenged which gave uncontrolled power to Government to extend a statute to a Union Territory “with appropriate restrictions and modifications”. The court upheld the provision and laid down several guidelines for executing such provisions31:
- The provision is that of empowering the extension of a statute to another area from an area where it was already in
- Power of “restriction and modification” is inclusive and not exclusive in power of extension and has to be applied with it and not
- This power ends with the termination of the power of
- Only such restrictions and modifications can be done as necessary to bring the statute into force into the Union
- There should be no change in essential feature of the enactment by virtue of such restrictions or
POWER OF TAXATION
The task of levying the taxes, in a democratic setup, is regarded as a legislative function as an essential tool to exercise control over the executive. However, legislature may leave for the executive certain ingredients of the taxation power. Delegation of power in the taxation area can be done in many ways, which are elaborated as follows.
Power to exempt entities from taxation
Legislature may delegate the power to the executive to exempt certain commodities from the purview of a taxation law. A similar provision was discussed in the landmark case of Orient Weaving Mills vs. Union of India32, the Hon’ble Supreme Court of India validated a provision empowering the Central Government to exempt any commodity from whole or part of duty leviable on such goods. The court went on to say that although, legislature cannot delegate the essential feature of a statute, it can confer upon executive the power to decide upon which people or class of people or goods or class of goods, the tax shall be levied. While making the selection of such people or goods, several factors like impact of levy on society, economic consequences, administrative convenience, etc., which vary highly from time to time and region to region.
POWER TO ADD THE ENTITIES ON WHICH TAXATION STATUTE IS APPLICABLE
In the celebrated case of Babu Ram vs. State of Punjab33, a provision of Punjab General Sales
Act, 1948 was challenged while authorized the State Government to include the goods in schedule C of the act, which may be freed from the ambit of the tax under the act. It was challenged on the ground of excessive delegation, which was subsequently upheld by the Hon’ble Supreme Court on the ground that power to executive to amend schedules in taxation matters is valid and has been upheld in a number of cases and moreover, any changes in the schedule can only be done by the government after giving three months’ notice. Prior publicity of the Government’s intention will give enough opportunity to the people to make representations against such a move, thereby acting as a check on any arbitrary exercise of power.
POWER TO FIX RATES OF TAXATION
The legislature can also empower any executive body to quantify the rate of the tax from time to time. In the case of Devi Das vs. State of Punjab34, the law empowering executive to levy tax at any rate not exceeding 2% was held valid because allowing the body a certain area of discretion by a statute is reasonable. However, leaving upon it, a large discretion placing a wide gap between the minimum and maximum rate, may result in an arbitrary exercise of power. However, the permissible limits depend upon the circumstances and the nature of each commodity. In another case, power to impose tax not exceeding 5% was regarded by the court as good.
Such power of delegation in matters of taxation is generally accepted by the courts in ground that proper purposes for which the collected duty is to be utilized are laid down and these purposes are not vague and arbitrary and the maximum rates at which the rates are to be collected are clearly defined.
CHAPTER 3: CRITICAL ANALYSIS OF SKELETAL LEGISLATION
As evident from the definition, in India, a skeleton legislation must not be valid generally because of the principle of excessive delegation, which lays down that legislative body, while delegating a power, must lay down guidelines for the enforcement of the power and delegate must carry out the function within a framework of those guidelines.35
In Harishankar Bagla vs. State of M.P., section 3 of the Essential Supplies (Temporary Powers)
Act, 1946 gave wide and unregulated power to Central Government not only to fill in details but also to decide the questions of policy.36 Apparently, although, the court justified it on the ground that it laid down guidelines i.e., “for maintaining or increasing supplies or securing equitable distribution and availability of essential commodities at fair prices”, however, these guidelines are too broad, ambiguous and vague and do not effectively clarify specific ambit, framework or limitations within which the executive is supposed to give the orders. The executive is virtually free to issue any order and take steps to control the commodities.37 Clearly, no order passed u/s 3 has been held ultra vires by the court because in the opinion of the executive, it is necessary and within the ambit of their discretion u/s 3 of the statute, however unreasonable it may seem.
In another case of Bhatnagars and Co. vs. Union Of India38, the Supreme Court upheld the provision which empowered Central Government to restrict the import or export of goods of any specified description by order on the pretext that the underlying policy is in the preceding statute ie. The Defence of India Act, 1939, which the act purports to continue. However, through the provision, the whole import and export process is to be determined by the administration. Moreover, relation between the preceding and continuing act is not clear and the Defence of India Act was an emergency, colonial law dealing with other matters necessary in the emergency. It was in itself a skeleton legislation and import and export scenario in India has changed drastically since 1940s. The executive issues orders according to its whims and fancies for which legislature issues no guidelines. The reasoning adopted by the court is a very artificial one, being unable to properly justify the validity of delegation. In another case of Makhan Singh vs. State of Punjab,39section 3 of Defence of India Act, 1962 was upheld by the Supreme Court which authorises the executive to make rules as it may seem expedient for defence of India to ensure public order and safety. It was an extremely broad delegation as the matter was left n the hands of executive by the parliament without laying down sufficient policies. Supreme Court gave the strange reasoning that adoption of the existing rules by the act shows sufficient underlying policy as the existing rules contain the policy.40 The reasoning is untenable since the doctrine of excessive delegation clarifies that clear policies are to be laid down by the legislature and not by the executive in the rules, which are sufficiently discretionary and variable at executive’s whims and fancies. Moreover, if these rules are underlying policy, these would not be changed by the body which made them as it would tantamount to executive changing the rules made by legislature. This could not be the intention of the legislature to fossilize or stratify the existing rules once and for all.41
In another judgment i.e, A.V.Nachane vs. Union of India42, a provision of the L.I.C. Act, 1956 was upheld based on the reasoning similar as that adopted in Bagla43 mutatis mutandis. The delegate is given too wide discretionary powers in the case of skeleton legislations and control over the rule making is weakened. Regarding this, CMP suggested:
“The precise limits of the law-making power which the parliament intends to confer on a minister should always be defined in clear language by the statute which confers it; when discretion is conferred, its limits should be defined with equal clearness.”44
To conclude here the delegated legislation is very vital in the wake of the progress in the number of legislations and technicalities involved. But at the same time with the development in legislations there is a great necessity to control it too. And so the delegation of power came into picture. Delegated (or Subordinate or Subsidiary) Legislation refers to those laws made by individuals or bodies to whom parliament has delegated law-making power, Where Acts are made by Parliament, a Principal Act may make provision for Subsidiary Legislation to be made, and will particularly defines who has the power to do so under that Act.
In this paper I have dealt with various definitions as well as meaning of delegated legislation. In addition to this we have also studied the reasons behind the great need of this concept in our society. Also we discussed and analyse the various forms of classification with case laws in great details.
For instance-Purpose based delegation, Nature-based delegation, Authority-based delegation and Discretion-based Delegation. Under purpose legislation we dealt with different purposes considering which the power is served like enabling Act, Extension and Application of Act, Alteration Acts, Taxing Acts, Supplementary Acts etc. the doctrine of excessive delegation of legislative power is also covered which is applicable to the conferment of such power on native authorities as well. In this category the constitutional control to legislate in respect of a specific subject such as local government does not carry with it the control to delegate crucial tasks.
Apart from this, project also deals with critical analysis of skeletal delegation which clearly provides- this legislation must not be valid generally because of the principle of excessive delegation, which lays down that legislative body, while delegating a power, must lay down guidelines for the enforcement of the power and delegate must carry out the function within a framework of those guidelines. With the help of various case laws, we have critically analysed the skeletal Legislation too.
- K Takwani 5th edition Ebc lectures on admin law
- Jain and Jain, Principles of Administrative Law, 6th edn, 2007
- Field Clark
- King Emperor BenoariLalSarma
- T.C Bhadrachalam Paperboards v. MandalGajananMaharajSansthan
- K Roy v. State of Punjab
- Gwalior Rayon vs. Asst. Commr. Of Sales tax
- HarishankarBagla State of M.P.
- Bhatnagars and Co. Union of India
- Mohmedalli vs. Union of India
- HamdardDawakhana Union of India
- Jalan Trading vs. Mill Mazdoor Union
- Orient Weaving Mills vs. Union of India
- Babu Ram State of Punjab
- Devi Das State of Punjab
- Bhatnagars and Co. Union of India
- Makhan Singh State of Punjab
- State of P. vs. Vatsavji Kumara Venkata Krishna Verma
- In re Delhi Laws Act
- LachhmiNarain Union of India
- HarshankarBagla State of M.P
- Tata Iron and Steel vs. Workmen
- Garewal S. vs. State of Punjab
- Izhar Ahmed Union of India
- Edward Mills and vs. State of Ajmer
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- ‘Delegate Legislation Development and Parliamentary control’, Amit Kumar<http://www.legalservicesindia.com/article/2421/Delegated-Legislation- Development-andParliamentary-Control.html> accessed on 21st August 2018
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1 Ankita Rani, LL.M., CNLU Patna
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4 ‘The Nature and Definition Of Delegated Ledislation’, AberhamYohannes and Desta G/Michael
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6 C.K Takwani 5th edition ebc lectures on admin law
7143 US 649.
8(1996) 6 SCC 634.
9AIR 1945 PC 48.
10C.K Takwani 5th edition ebc lectures on Administrative law.
11I.P Massy 8th edition ebc Administrative Law.
12AIR 1986 SC 2160.
13 AIR 1951 SC 332
14‘Delegated Legislation’<http://abhinavkls1.blogspot.com/2014/01/delegated-legislation.html> accessed on 23rd August, 2018.
15AIR 1974 SC 1660.
16Gwalior Rayon Co. vs. Asst. Commr. Of Salestax,AIR 1974 SC 1660.
17 AIR 1954 SC 465 : 1954 CrLJ 1322.
18AIR 1954 SC 465.
19AIR 1954 SC 465, at 468.
20AIR 1957 SC 478.
22State of A.P. vs. Vatsavji Kumara Venkata Krishna Verma, (1999) 2 SCC 297, 304, para 14.
23 In re Delhi Laws Act, AIR 1951 SC 332. See also Lachhmi Narain vs. Union of India, AIR 1976 SC 714.
24AIR 1955 SC 25: 1954 (2) LLJ 686.
25 Jain and Jain, Principles of Administrative Law, 6th edn, 2007, vol 1, page 86. 26AIR 1962 SC 1052. See also Harshankar Bagla vs. State of M.P., AIR 1954 SC 645. 27AIR 1960 SC 554.
28AIR 1967 SC 691.
29AIR 1967 SC 691.
32AIR 1963 SC 98: 1962 Supp (3) SCR 481.
34AIR 1967 SC 1895.
35Tata Iron and Steel Co. vs. Workmen, AIR 1972 SC 1918.
36 Jain and Jain, Principles of Administrative Law, 6th edition, 2007, volume 1, page 84.
38AIR 1957 SC 478.
39AIR 1964 SC 381.
40Garewal D.S. vs. State of Punjab, AIR 1959 SC 512.
41Izhar Ahmed vs. Union of India AIR 1962 SC 1052.
42AIR 1982 SC 1126.
43AIR 1954 SC 645.
44CMP Report, 122.