Author: Suyash Tripathi
If we look around, we can realize that due to shift to welfare state, there has been an increase in the administrative functions of the country. After independence there was a lot of confusion regarding the delegation of legislative power to the executive. To clarify all the doubts: the president of India under Article 143 of the constitution referred the matter to the apex court and it laid down certain guidelines to clarify the position.
The researcher here has focused on the judgement of 7 judges bench wherein every judge had a difference of opinion.
Delegated Legislation, also referred to as secondary legislation or subsidiary legislation, is one of the most unavoidable parts of administration. Along with being most important, it was the most debatable issue in India. According to the traditional theory, the prime function of the executive is to administer the laws enacted by the legislature and in the ideal state the power to legislate must be unanimously dealt with by the legislature. But due to an increase in an administrative function, the executive has to perform certain legislative function.
Legislation by any local body or a body established as a statutory body other than the Legislature, but under the authority of competent legislature is called Delegated Legislation.
Need for Delegated Legislation:
- It is needed as it reduces the workload of the already overburdened Legislature by enabling the executive authorities to create or alter the law under the authority of the legislature. Thus, eventually, it helps the legislature to focus on more important matters and frame policies accordingly.
- It allows the law to be created by those who have adequate knowledge and experience.
- It plays an important role during the time of emergency as we don’t have to wait for the parliament to pass the law.
- Delegated legislation is therefore, able to meet the need of the society and also the situations that parliament has not anticipated when they enacted the Act of Parliament.
Criticism of Delegated Legislation:
- It has been argued that delegated legislation enables the authorities other than the legislature to make and amend the laws as a result of which the functions overlap.
- It is against democratic principles too as the power to legislate is given in the hands of the unelected people.
- It is subject to less scrutiny by Parliament than the primary legislation. Thus, Parliament lacks control over the Delegated Legislation, and this leads to the inconsistencies in the laws. Thus, it has the potential to be used in those ways which have not been anticipated by the Parliament when it conferred the power through the Act of Parliament.
- It suffers from a lack of publicity generally. Since the laws made by the authorities established by the statutes other than the legislature are notified to the public. On the other hand, the laws made by the Parliament are widely publicized.
Status before Constitution:
There are a lot of decisions from the privy council to the Supreme Court which deal with the same issue.
In pre Constitution era, when the highest court of appeal in India was Privy Council, the issue of the constitutionality of delegated legislation came before it in the case of Queen v. Burah. The act in dispute gave Lt Governor power to bring the act in effect, to determine the applicability of laws and power to extend the application of the same act. The question was that whether vesting Lt Governor with the power to extend the application of law can be termed as a delegation of power? Only Conditional Legislation was held valid in the judgement by the council. The administration of civil as well as criminal justice of the territory was to be vested in the hands of those officers who were appointed by the Lt. Governor.
After Constitution: In Re Delhi Laws Act Case:
In order to clarify all the doubts regarding the validity of delegated legislation, the president of the nation under article 143 of the Constitution referred the matter to the apex court and asked for its opinion on the three questions which were:
- Was section 7 of Delhi Laws Act,1912 or any of provisions contained in the act and in what particular ultra vires the Legislature which passed the Act?
Section 7 of Delhi Laws Act,1912 is as follows:
“The Provincial Government may, by notification in the official gazette, extend with such restrictions and modification as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.”
It was held valid by the majority.
- Was section 2 Ajmer-Merwara Act of 1947 or any of provisions contained in the act and in what particular ultra vires the Legislature which passed the Act?
Section 2 of Ajmer-Merwara Act, 1947 is as follows:
“Extension of enactments to Ajmer-Merwara – The Central Government may, by notification in the official gazette, extend to the province, with such restrictions as it thinks fit the enactment which is in force or in any other province at the date of such notification.”
It was also held valid by the majority.
- In section 2 of the Part C States (Laws) Act, 1950, or any of provisions contained in the act and in what particular ultra vires the Legislature which passed the Act?
Section 2 of the Part C States (Laws) Act, 1950 is as follows:
“Power to extend enactments to certain Part C states …”
Part C were the states that were directly under the control of the Union Government without having any legislature of their own and hence, The Parliament had to legislate for them. This act delegated the power to the Union Government.
Section 2 of the Act was held valid but the power to repeal or amend any corresponding law which was for the time being in application to Part C was void and the same was held to be excessive legislation.
Summary of the decision in the case:
- “Separation of powers” is not a part of the Constitution of India.
- Parliament cannot entirely abdicate itself by creating any parallel authority.
- The only ancillary functions could be delegated.
- There is a limitation on delegating the power. Essential functions cannot be delegated by the legislature.
Analysis of Opinion:
The case was presided over by the Seven judges, thus, providing us with 7 totally different opinions.
There were 2 extremist views that were put forth by the counsel:
MC Setalvad took the view that power of delegation comes along with the power to legislate and the same doesn’t result in the abdication of powers.
The other council took the view that there exist separation of powers in the country and India follows the maxim delegates non potest delegare.
Judges differed on the issue that what should be the permissible limits within which the Indian Legislature could delegate its legislative power.
Fazl Ali, J conclusions regarding the case was:
- The legislature must discharge its primary legislative functions itself.
- It cannot abdicate its legislative functions.
- The legislature should not discharge its functions through others.
- It is ancillary to and important for the effective exercise of its power of legislation.
The case has been quoted as the “BIBLE OF DELEGATED LEGISLATION”:
It means that , it is considered as a very comprehensive document on the delegated legislation which has clearly laid down the significance and need of delegation and simultaneously indicates the safeguards needed to ensure there is no excessive legislation.
The case has been successful in achieving two ends:-
- It legitimized delegation of legislative power by the legislature to administrative organs;
- It imposed an outer limit on delegation by the legislature.
Thus, it can be concluded that the legitimacy of delegation is no longer an issue of dispute. The only issue that arises is with respect to the limits imposed upon the delegation of powers. Several years after the case at hand it is safe to mention that this is an ongoing process. As times change and as the need of the society change, various limits will have to be cast upon delegation. The various controls will have to be made more stringent and the leash shortened or let loose as the situation demands.
Eventually, the present case has formed the foundation on which issues concerning the probability and extent of delegation of legislation have commenced to become unambiguous. It has laid down the groundwork and has left it to the judicial system to carry forward and spread this fundamental principle.
The case mainly lays down that the British or the American model cannot be implemented as such in our country India. The Indian system, though it has borrowed widely from various systems round the globe, deserves better. It is humbly submitted by this author that, the position in this case be regarded as the “Indian model on Delegated Legislation” set forth for other countries to consider.