EXCESSIVE DELEGATION
5.4 Administrative Law
Submitted By -
Divyanshu kumar
UId No. UG17- 35
Academic Year 2019-20
Semester- V
Submitted To –
Dr. V.P. Tiwari, Professor of Law
Maharashtra National Law University, Nagpur
TABLE OF CONTENTS
INTRODUCTION……………………………………………………………………………..1
DELEGATED LEGISLATION……………………………………………………………….2
NEED FOR DELEGATED LEGISLATION……………………………………….2
EXCESSIVE DELEGATION…………………………………………………………………3
ESSENTIAL LEGISLATIVE FUNCTION AND POLICY OF LAW……………..5
CONCLUSION………………………………………………………………………………..8
BIBLIOGRAPHY……………………………………………………………………………..8
INTRODUCTION
The doctrine of separation of powers is one of these ancient gods in the temple of
constitutional liberties. Professor Nathanson1 has said that “When the writer was first
formally exposed to American Administrative Law under the then Professor Frankfurter, we
seemed mainly concerned with the principle of the separation of powers, informed of course
by history and tempered by the judgments of experience. It seemed an obviously misguided
emphasis upon ancient and irrelevant dogma, until dramatic vindication came shortly
thereafter in the Schechter decision2 holding the N. R. A. invalid partly on the ground of
delegation of legislative power, and a good many years later in Youngstown (Youngstown
Sheet & Tube Co. v. Sawyer3, holding President Truman's seizure of the steel mills an
unlawful usurpation of legislative power.”
It was the great truth underlying the above statements that persuaded the first Supreme Court
of India to accept in the case of In re Delhi Laws Act and restate in the case of Raj Narain v.
Chairman, Patna Administration4, that under the Republic, India has parted with Queen v.
Burah5 and adopted the American view that somewhere in the background there is a limit to
the power of the legislature, to delegate law-making to the executive. The recent trend shown
in a few judgments to return to the generally accepted doctrine of Queen v. Burah is so grave
that in the following pages a detailed survey of the jurisprudence built up by the Supreme
Court with great care and labour in this area is attempted.
The main points in Queen v. Burah are:
The Indian legislature has powers expressly limited by the Act of the Imperial Parliament
which created it, and it can, of course, do nothing beyond the limits which circumscribe these
powers. But, when acting within those limits it is not in any sense an agent or delegate of the
Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as
large, and of the same nature, as those of Parliament itself."6
"The Governor-General in Council could not, by any form of enactment, create in India, and
arm with general legislative authority, a new legislative power, not created or authorized by
the Council's Act."7
"In this case the proper Legislature has exercised its judgment as to place, person, laws,
powers; and the result of that judgment has been to legislate conditionally as to al 1 these
things. The conditions having been fulfilled, the legislation, is now absolute... . .. it cannot be
supposed that the Imperial Parliament did not, when constituting the Indian Legislature,
1
Nathanson, American Administrative Law, The Journal of the Society of Public Teachers of Law, Vol. VI, (New
series)
2
A. L. A. Schechter Poultry Corporation v. United States, 295 U. S. 495 (1935)
3
343 U. S. 579 (1952)
4
A.I.R. 1954 S.C. 569 at 574
5
1878) 5 I. A. 178
6
Ibid P.193
7
Ibid P.194
1
contemplate this kind of conditional legislation as within the scope of the legislative powers
which it from time to time conferred. It certainly used no words to exclude it."
The sum total of the three ruling observations in the case given above really do not lay down
anything except permitting conditional legislation and prohibiting general and total legislative
abdication. But on the practically important question of delegating power to make substantive
law to other bodies short of general total self-effacement but without any standard or
safeguard, the privy council did not seem to have expressed any opinion.
DELEGATED LEGISLATION
Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority
or empowering another to act as an agent or representative’.
Delegated legislation has been defined as “the principle which has been well-established is
that the legislature must lay down the guidelines, the principles of policy for the authority to
whom power to make subordinate legislation is entrusted.”
Delegation of powers means the powers passed on by the higher authority to the lower
authority to make laws. Delegated legislation means the powers given by the legislature to
the executive or administration to enact certain laws.
The simple meaning of the expression “delegated expression” may be:
When the function of the legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is known as delegated legislation.
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 .”
Need For Delegated Legislation
a) Pressure upon parliamentary time: The horizons of state activities are expanding. The
bulk of legislation is so great. It is not possible for the legislature to devote sufficient
time to discuss all the matters in detail. Therefore, legislature formulates the general
policy – the skeleton and empowers the executive to fill in the details – thus giving
flesh and blood to the skeleton so that it may live by issuing necessary rules.
b) Technicality: Sometimes, subject matter of legislation is technical in nature. So,
assistance of experts is required. Members of parliament may be the best politicians
but they are not expert to deal with highly technical matters.
These matters are required to be handled by experts. Here, the legislative power may
be conferred on experts to deal with the technical problems. i.e. gas, atomic energy,
drugs, etc.
2
c) Flexibility: Parliament cannot foresee all the contingencies while passing on
enactment. To satisfy these demands of unforeseen situation some provisions are
required to be made. A legislative amendment is a slow and cumbersome process. But
by the device of delegated legislation the executive can meet the situation
expeditiously, e.g. bank rate, police regulations, export and import, foreign exchange
etc. Therefore, in a number of statutes a ‘removal of difficulty’ clause has been added
empowering the administration to overcome such difficulties by exercising delegated
power. This Henry VIII clause confers very wide power son the Government.
d) Experiment: The practice of delegated legislation enables the executive to experiment.
This method permits rapid utilization of experience and implementation of necessary
changes in application of the provisions in the light of such experience. As for
example, in road traffic matters, an experiment may be conducted and in the light of
its application necessary changes could be made. The advantage of such a course is
that it enables the delegate authority to consult interests likely to be affected by a
particular law, make actual experiments when necessary and utilize the result of his
investigation and experiments in the best possible way. 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.
EXCESSIVE DELEGATION
Delegated Legislation is defined as the power given to the executor to make law, rule, bye-
law, order etc by the sovereign(legislature) on his behalf or delegate his own power to make
them. sometime legislature gave them more power without the policy of the law, laying down
the legal principles and standards for the guidance of the delegate to promulgate delegated
legislation that creates a parallel law-making body which is against the doctrine of separation
of powers. To stop this type of practice doctrine of excessive delegation came in the place
which makes the excessive delegation unconstitutional. In this article, I will explain why is
the requirement of this doctrine and how the judiciary using it to limit the delegated
legislation.
Legislature body is not in touch with the public day-to-day matter as the administration are.
So, giving the power of the legislature to executor was good for making policy, law etc. Also,
taking the advice of experts is good for making policy, law etc. But giving excessive power is
not good because it creates a parallel legislature body which is not even representation of
people. Also, by giving excessive delegation, the legislature is basically abdicating his
legislature power. In a democratic system, people choose their representative for making law
and order. If the unselected person making the law then it would be bad for a democratic
system. If no standards are prescribed to limit delegation of power, executor gets a blank
paper to make any rules they like and become the primary legislator. Thus, this doctrine
promotes the democracy in the society.
In other words, the discretion of the delegation is controlled. The doctrine also provides the
courts with a judicial tool to control delegation of legislative power beyond a legitimate
3
degree. Because of that court obligate the legislature to give some attention to frame the
board policies and apply them as a law rather them leave the entire matter to administrative
discretion. In the absence of such restriction, the executive may believe that the legislature
hand over the blank paper in the matter of delegated legislation. In the absence of this
doctrine, the court will be left with no mechanism to control delegation of legislative power.
This doctrine does obligate to the legislature to sate some policies, principles and guidelines
in the Act to guide the exercise of delegated power to some extend and the courts can use this
doctrine to check the instances of delegation. It also helps the judiciary by strengthening the
application of the doctrine of ultra vires to judicially validity of the delegated legislation
itself. Because if a statue has the policy regarding the use of delegated power then it would be
easy for the court to check whether the action of delegated authority is ultra vires or not and
reduce the chance of misuse of power. Because of this reason, I would suggest that this
doctrine should be used to limit the administration power while using delegated legislation
and it promote democracy in the country.
Following propositions were laid down by the Supreme Court In Re The Delhi Laws Act
case8 regarding the delegated legislation:
1) “Separation of powers” is not a part of Indian Constitution.
2) Indian parliament was never considered as an agent of anybody. Therefore doctrine of
delegates non potest delegare is not applicable.
3) Parliament cannot completely abdicate itself by creating a parallel authority.
4) Only ancillary functions can be delegated.
5) There is a limitation on delegation of power. Legislature cannot delegate its essential
functions. Essential functions involve laying down the policy of the law and enacting
that policy into binding rules of conduct.
In Jyoti Pershad v. Administrator, Union Territory of Delhi9, laid down “principle to
determine excessive delegation as follow:
a) Essential legislation functions to make law and to determine legislative policy cannot
be delegated.
b) If the power is conferred on the executive in a manner which is lawful and
permissible, the delegation cannot be held to be excessive merely because the
legislature could have made more detailed provision”
In India, the Court in Gwalior Rayon Co. v. Asst. Commr. Of sales tax10 case Minority
opinion stated that legislature has the power to repeal the delegated provision there should no
need to lay down rule or policy because legislature retains its ultimate control by repeal the
8
1951 AIR 332
9
1961 AIR 1602
10
1974 AIR 1660
4
provision. If that reasoning was supported then there is no restriction on the legislature in the
matter of delegation. Majority opinion rejected that reasoning by stating that “the rule against
excessive delegation of the legislative authority flows from and is a necessary postulate of the
sovereignty of the people. The doctrine of excessive legislation should be regard as very well
established in India which means that the legislation cannot delegated uncanalised and
uncontrolled power. Thus, while delegating legislative power, the legislature should lay down
legislative policy, standards or guidelines for delegate to follow.”
The Supreme court has enunciated the doctrine of excessive delegation in Registrar, Co-
operative Societies v. K. Kunjabmu11 as follow:
“…the power to legislate carries with it the power to delegate. But excessive delegation may
amount to abdication. Delegation unlimited may invite despotism unlimited. So, the theory
has been evolved that the legislature cannot delegate its essential legislative function.
Legislate it must, by laying down policy and principle and delegate it may to fill in detail and
carry out policy…. If guidance there is, wherever it may be found, the delegation is valid.”
Therefore it is clear that the legislature can’t delegate essential legislative function, which is
laying down the policy of the act and enacting it. but the essential legislative function and
policy depends on facts of the case.
Essential Legislative Function and Policy of Law
Regarding the power conferred on the executive to make modifications, the majority seems to
have arrived at an agreement on the point that the power to modify did not mean the power to
make essential changes. This view was accepted by the court in Raj Narain's case12. This
case is a typical example of abuse of delegated power by the delegate. Here section 3(1) of
the Patna Administration Act empowered the state government "to extend to Patna the
provisions of any section" of the Bihar and Orissa Municipalities Act, 1922 "subject to such
restrictions and modifications as the government may think fit." The government picked out
one particular section of the Act and applied it in its modified form to Patna by notification
without adopting the safeguards provided therein. The notification introduced the taxation
section and withheld the provisions for creating representative local body. In other words the
old tyranny of taxation without representation was attempted. Bose J. for a unanimous court
upheld S.3(1) (f) of the Act on the ground that the power to select any section did not effect
any change in policy if the "restrictions and modifications" were taken to have the meaning
adopted by the majority in the Delhi Laws Act13 case i. e., in the restricted sense so as not to
make essential changes in the policy laid down by the legislature. The Court, however,
invalidated the notification which omitted to adopt the safeguards and this effected an
essential change of policy.
11
AIR 1980 SC 350
12
1954 AIR 569
13
1951 AIR 332
5
In Harishankar Bhagla v. State of Madhya Pradesh14 the court considered the scope of the
Delhi Laws Act case and unanimously adopted the principle laid down therein. Explaining
the meaning of essential legislative function as one consisting "in the determination or choice
of the legislative policy and of formally enacting that policy into a binding rule of conduct",
the court upheld the impugned provision by discovering the policy in the preamble of the Act.
Here Ss. 3 and 6 of the Essential Supplies (Temporary powers) Act, 1946 and the Cotton
Textiles (Control of Movement order) 1948, issued thereunder were challenged on the ground
of excessive delegation of legislative powers. Mahajan C. J. speaking for a unanimous court
held that the preamble and the body of the sections sufficiently formulated the legislative
policy viz., the maintenance or increase in supply of essential commodities and of securing
their equitable distribution and availability at fair prices and this accorded sufficient guidance
to the executive in exercising its powers.
The next case where the doctrine progressed a step was Edward Mills v. State of Ajmer15. 19
Here also the attack was that there was no policy to be found in the Act. Here S.27 of the
Minimum Wages Act, 1948 whose object as stated in the preamble was "to provide for fixing
minimum rates of wages in certain employments", authorised the "appropriate government"
to add to the schedule any other employment in respect of which t'it is of opinion that
minimum wages shall be fixed," after giving three month's notice. It was contended that no
policy or standard was laid down for the guidance of the executive for the selection of
employments to be included in the schedule. Mukherjea J. speaking for the court held that
"the legislative policy is apparent on the face of the enactment", the policy being fixation of
minimum wages with a view to obviate the exploitation of labour. The learned judge
observed that it was for carrying out effectively the purpose of the enactment that such a
power was delegated to the executive and as such there was no excessive delegation.
In Hamdard Dawakhana's case16 S. 3 of the Drugs and Magic Remedies (Objectionable
Advertisement) Act, 1954 prohibited the advertisement of drugs for treatment of certain
diseases and disorders specified in the section and "or any other disease or condition which
may be specified in the rules made under the Act." S. 16 of the Act had empowered the
executive to make rules for the purposes of the Act and to specify the conditions or diseases
falling within the mischief o: S. 3. Kapur J. held that the words " or any other disease or
condition which may be specified" in cl. (d) of S. 3. Suffered from the vice of excessive
delegation. The reasoning of the court was that "the words impugned are vague' and the
parliament without prescribing any standard or principle had conferred "uncanalised and
uncontrolled power to the executive," This decision is based on the same principle that the
legislature could not delegate unguided power to a subordinate body.
The reasoning of the learned judge, it is submitted, does not seem to be in consistency with
the ruling in Edward Mill's case which, of course, was not cited in the present case. There is
no material difference in the facts of the two cases. The preamble of the statutes involved in
both the cases are worded on the same lines, and the power conferred on the executive was
14
A.I.R 1954 S. C. 465.
15
A.I.R. 1955 S. C. 25; 1955 S. C. J. 42
16
Haindat d Dawakhana v. Union of India A I R. 1960 S. C. 554.
6
also the same. The court could have upheld the impugned provision on the ground that such a
conferment of power was necessary for carrying out the purpose of the Act effectively. Or
else, the court could have applied the principles of ejusdem generis in validating the Act, for
S. 16 of the Act had specified certain diseases.
D. S. Garewal v State o f Punjah17 is another example where the court identified another area
where a lenient scrutiny of delegated legislation is legitimate, viz., government employment.
Of course what the court said was that they found out the policy from the rules which were in
existence at the commencement of the impugned Act. The case was concerned with the
validity of S. 3 of the All India Services Act, 1951 which empowered the government to
make rules for the regulation of recruitments and conditions of services of persons appointed
to the All India Service. Wanchoo J. held that S. 4 of the Act which provided that "the
existing rules will govern the two All India Services in the matter of regulation of recruitment
and conditions of service" determined the legislative policy and set up a standard for the
central goverment. The learned judge further observed that the requirements to consult the
state governments before making the rules and of laying the same before parliament with
power to modify, provided adequate vigilance and control over the delegate by the
legislation. It is submitted that these built-in safegurads could have been made the articulate
basis of the judgment instead of searching for the dormant policy hidden in the Act and
outside it.
A case in point is H.R. Banthia v. Union of India18. S. 5(2)(b) of the Gold (Control) Act, 1968
empowered the Gold Administrator, so far as it appeared to him to be necessary or expedient
for carrying out the purposes of the Act, to regulate the manufacture, distribution, use,
disposal, consumption, etc., of gold. The Supreme Court declared the provision invalid
because it was very wide and suffered from the vice of “excessive delegation”.
The Supreme Court has stated in Mahe Beach Trading Co. v. Union Territory of
Pondicherry19 that if there is abdication of legislative power, or there is excessive delegation,
or if there is a total surrender or transfer by the Legislature of its legislative functions to
another body, then that is not permissible. There is, however, no abdication, surrender of
legislative functions or excessive delegation so long as the Legislature has expressed its will
on a particular subject matter, indicated its policy and left its effectuation to subordinate
legislation, provided the Legislature has reteamed the control in its hand with reference to it
so that it can act as a check or a standard and prevent or undo the mischief by subordinate
legislation when it chooses to or thinks fit.
In Bhatnagars & Co. v. Union of India 20was involved S. 3(l)(a) of the Imports and Exports
(Control) Act, 1947 authorizing the Central Government to prohibit or restrict the import or
export of goods of any specified description by order. The statute is skeletal and gives no
indication as to what considerations and policies are to be kept in view by the Government in
17
AIR. 1959 S. C. 512,
18
AIR 1970 SC 1453 (para 17, page 1464).
19
(1996) 3 5CC 741, para 13, p. 746.
20
AIR 1957 SC 478, p. 485
7
controlling imports and exports. The whole regulatory process over import and export of
goods has been developed by the Administration through delegated legislation under this
statutory provision. The Supreme Court upheld the statute as valid arguing that the
underlying policy was to be found in the preceding statute, the Defense of India Act, 1939,
whose provisions the statute i question purported to continue.
CONCLUSION
Thus, to draw conclusion it can be said that if the subordinate or delegated legislation goes
beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or
Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated
legislation may be challenged before the Courts on this ground. It is a mechanism to curb
down the exploitation of power by the administrative authority as we all know that “power
corrupts and absolute power corrupts absolutely”. However in this field there is lack of
development and there is no substantial change in the concept all though the changing nature
of the current legislative method has widen the horizon of the power of the authority by
giving them power to act according to the need of the time, even sometimes travelling beyond
the restrictions.
BIBLIOGRAPHY
SCC Online
Heinonline.org
A. T. Markose and M. K. Balachandran, The Problem of Delegation of Legislative Powers in
India, KERALA UNIVERSITY LAW REVIEW, 1971.
