ABSTRACT
This paper explores the classification and framework of delegated legislation within the Indian legal context, analyzing its evolution, constitutional validity, and judicial scrutiny. Delegated legislation has emerged as a vital component of contemporary governance, enabling the executive to enact subsidiary rules and regulations under the authority of primary legislation. The study traces its historical development from the pre-Constitution era to the post-Constitution period. The paper classifies delegated legislation based on title, discretion, purpose, and authority, offering a comprehensive understanding of its application and scope. It highlights the driving factors behind its proliferation, including the complexity of modern administration, need for expert involvement, and legislative time constraints. While acknowledging its advantages such as flexibility, administrative efficiency, and responsiveness during emergencies, the paper also critically examines its drawbacks, including potential misuse, erosion of legislative supremacy, and deviation from the doctrine of separation of powers. The role of judicial oversight in maintaining checks and balances is emphasized through an analysis of constitutional principles and case law. The study underscores the importance of maintaining a balance between effective governance and democratic accountability to prevent executive overreach and safeguard the rule of law.
Keywords: Delegated Legislation, Constitutional Validity, Judicial Review, Separation of Powers, Administrative Law, Legislative Delegation.
INTRODUCTION
The evolution of delegated legislation in India can be examined in two distinct phases, which are as follows:
Pre-Constitution Period
In the pre-Constitution era, the concept and practice of delegated legislation were shaped by various legal and judicial developments. One significant case during this period was Queen v. Burah[1].
The controversy arose under the provisions of Act XXII of 1869, which removed the jurisdiction of civil and criminal courts over the Garo Hills. Section 9 of the Act empowered the Lieutenant-Governor to apply, with necessary modifications, any or all provisions of the Act to the Khasi, Jaintia, and Naga Hills within the Garo Hills region. Furthermore, the Lieutenant-Governor was authorized to determine the effective date of such an application. On October 14, 1871, the Lieutenant-Governor issued a notification extending the provisions of the Act to the Khasi and Jaintia Hills.
This notification was challenged by the appellants, who had been convicted of murder and sentenced to death, because Section 9[2] of the Act was beyond the legislative powers of the Indian Legislature. The Calcutta High Court, by a majority, upheld the appellants’ argument and declared Section 9 as ultra vires. The Court reasoned that the Indian Legislature, being a delegate of the British Imperial Parliament, lacked the authority to further delegate its legislative powers.
However, this decision was overturned by the Privy Council on appeal. The Privy Council held that the Indian Legislature was not a mere delegate of the British Parliament but possessed plenary legislative powers equivalent to those of the British Parliament itself. It clarified that the Governor-General in Council could not create new legislative authorities through legislation. Instead, the Act merely involved conditional legislation, where the Lieutenant-Governor was not enacting new laws but merely extending existing ones upon fulfilling specific conditions prescribed by the Act[3].
The Privy Council’s judgment opened the door for two contrasting interpretations. One interpretation suggested that, since the Indian Legislature was not subordinate to the British Parliament, there were no restrictions on its ability to delegate legislative powers. Conversely, the second interpretation emphasized that the case validated only conditional legislation, implying that the delegation of essential legislative functions was not permissible.
Another landmark case regarding the validity of delegated legislation was Jatindra Nath Gupta v. Province of Bihar[4]. In this case, the Federal Court addressed the constitutional validity of Section 1(3) of the Bihar Maintenance of Public Order Act, 1948. This provision authorized the Provincial Government to extend the life of the Act for an additional year with any modifications deemed necessary.
The Federal Court held that empowering the Provincial Government to extend the Act’s duration and make modifications constituted an invalid delegation of legislative power. The Court reasoned that determining the lifespan of a law and making substantive modifications were essential legislative functions, which could not be delegated to the executive. For the first time in India, this decision established the principle that legislative power is non-delegable.
[1] 1878 ILR 3 Cal 64.
[2] Ibid.
[3] Jatindra Nath Gupta v. Province of Bihar, AIR 1949 FC 175
[4] AIR 1949 FC 175