FACULTY OF LAW JAMIA MILLIA ISLAMIA

Administrative Law

Delegated Legislation and Causes of Its

Growth

Submitted By:-

ANILESH TEWARIB.A.LL.B(Hons)

3 rd Year/6 th Semester

ACKNOWLEDGEMENT

I would like to thank my teacher Dr Mohammad Asad Malik for being a great teacher and for giving me support and guidance regarding this assignment. . I would also like to thank my friends and peers for their encouragement throughout the making of this assignment.

Anilesh Tewari

INTRODUCTION

It is well known that not all legislation is made by Parliament itself. Traditionally, legislation is

divided between primary legislation enacted by Parliament, and delegated legislation

promulgated by the executive. While primary legislation sets out matters of policy and

substance, the implementation and detail is delegated to the executive. It is the detail and

implementation of the primary legislation that impacts on daily lives. The cost of a driver’s

licence, the daily limit for taking of shellfish, and what substances can safely be included in your

breakfast cereal are all the subject of delegated legislation rather than Acts of Parliament.

DELEGATED LEGISLATION

Delegated legislation (also referred to as secondary legislation or subordinate legislation) is law

made by an executive authority under powers given to them by primary legislation in order to

implement and administer the requirements of that primary legislation. It is law made by a

person or body other than the legislature but with the legislature's authority. Delegated

legislation means permitting bodies beneath parliament to pass their own legislation.

DELEGATED LEGISLATION AND EXECUTIVE LEGISLATION

Delegated legislation is not to be confused with the executive legislation. The former stands for

the laws made by the authorities other than the legislature to whom the legislature delegates its

legislative power. The latter stands for the laws made by the President and the governer

respectively under article 123 and 213 of the constitution. These laws are in the form of

ordinances which have the force of law. Such ordinances are issued by the respective executive

heads and they are required to be ratified by the respective legislature, namely, the parliament

and the state legislature, as the case maybe, after they meet .such an ordinance ceases to have

effect if it is not ratified within six weeks after the assembly of legislature .the source of

delegated legislation is always an act of legislature whereas the source of the executive

legislation is a constitutional provision.

DELEGATION OF POWERS

Meaning

Delegation of powers means those powers, which are given by the higher authorities to the lower

authorities to make certain laws, i.e., powers given by the legislature to administration to enact

laws to perform administration functions. The law legislate by the administration with the

powers given by the legislature is called delegated legislation. Or we can say that when an

instrument of a legislative nature is made by an authority in exercise of power delegated or

conferred by the legislature is called subordinate legislation or delegated legislation. Delegated

legislation, also referred to as secondary legislation, is legislation made by a person or body

other than Parliament. Parliament, through an Act of Parliament, can permit another person or

body to make legislation. An Act of Parliament creates the framework of a particular law and

tends only to contain an outline of the purpose of the Act. By Parliament giving authority for

legislation to be delegated it enables other persons or bodies to provide more detail to an Act of

Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit

others to make law and rules through delegated legislation. The legislation created by delegated

legislation must be made in accordance with the purposes laid down in the Act. The function of

delegated legislation is it allows the Government to amend a law without having to wait for a

new Act of Parliament to be passed. Further, delegated legislation can be used to make technical

changes to the law, such as altering sanctions under a given statute. Also, by way of an example,

a Local Authority have power given to them under certain statutes to allow them to make

delegated legislation and to make law which suits their area. Delegated legislation provides a

very important role in the making of law as there is more delegated legislation enacted each year

than there are Acts of Parliament. In addition, delegated legislation has the same legal standing

as the Act of Parliament from which it was created. Doctrinal of permissible limits Doctrine of

permissible limit basically talks about the powers of a legislature which can be delegated to the

Administrative authorities a legislation cannot delegate all its powers. The legislature has some

limited powers which can be delegated.

Those powers are as follows: Powers which can be delegated:

Commencement

Several statues contain an 'appointed day' clause, which empowers the government to appoint a

day for the act to come into force. In such cases, the operation of the act depends on the decision

of the government e.g. section 3 of the Bombay Rents, hotel and Lodging house rates control act,

1947 provides that the act shall come into operation on such date as the state Government may

by notification in the official gazette appoint in this behalf. Here the act comes into force when

the notification is published in the official gazette. Such a provision is valid for, as Sir Cecil Carr

remarks, "the legislature provides the gun and prescribes the target, but leaves to the executive

the take of pressing the trigger".

Supplying details:

If the legislative policy is formulated by the legislature, the function of supplying details may be

delegated to the executive for giving effect to the policy. What is delegated here is an ancillary

function in aid of the exercise of the legislative function e.g. section 3 of All India Service Act,

1951 authorizes the central government to make rules to regulate conditions of service n All

India Services

Modifications:

Sometimes, provisions are made in the statute authorizing the executive to modify the existing

statute before application. This is really a drastic power as it amounts to an amendment of the

act, which is a legislative act, but sometimes, this flexibility is necessary to deal with the local

conditions. Thus, under the power 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 than

Rs. 500 but that limitation was removed by the government.

Prescribing punishments:

In some cases the legislature delegates to the executive the power to take punitive action e.g.,

under section 37 of the electricity act,1910, the electricity board is empowered to prescribe

punishment for breach of the provision of the act subject to the maximum punishment laid down

in the act. By section 59(7) of the Damodar Valley Act, 1948, the power to prescribe punishment

is delegated to a statutory authority without any maximum limit fixed by the parent act.

According to the Indian Law Institute, this practice is not objectionable, provided two safeguards

are adopted: 1) The legislation must determine the maximum punishment which the rule making

authority may prescribe for breach of regulations; and 2) If such power is delegated to any

authority other than the state or central government, the exercise of the power must be subject to

the previous sanction or subsequent approval of the state or central government. Framing of

rules: A delegation of power to frame rules, bye laws, regulations, etc. is not unconstitutional,

provided that the rules, bye laws and regulations are required to be laid before the legislature

before they come into force and provide further that the legislature has power to amend, modify

or repeal them. Removal of difficulties (Henery VIII clause): Power is sometime conferred on

the government to modify the provisions of the existing statutes for the purpose of removing

difficulties. When the legislature passes an act, it cannot foresee all he difficulties which may

arise in implementing it. The executive is, therefore, empowered to make necessary changes to

remove such difficulties. Such provision is also necessary when the legislature extends a law to a

new area or to an area where the socioeconomic condition are different. Generally, two types of

"removal of difficulties" clauses are found in statutes. A narrow one, which empowers the

executive to exercise the power of removal of difficulties consistent with the provisions of the

parent act; e.g. section 128 of the States Reorganization Act, 1956 reads 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 provision which appears to him to be necessary or expedient

for the purpose of removing the difficulty". Such a provision is not objectionable. By exercising

this power the government cannot modify the parent act nor can it make any modifications which

are not consistent with the parent act. Another type of "a removal of difficulties' clause is very

wide and authorizes the executive in the name of removal of difficulties to modify even the

parent act or any other act. The classic illustration of such a provision is found on the

constitution itself. Usually, such a provision is for a limited period. This provision has been

vehemently criticized by Lord Hewart and other jurists. It is nicknamed as the Henery VIII

clause to indicate executive autocracy. Henery VIII was the king of England in the 16th century

and during his regime he enforced his will and got his difficulties removed by using

instrumentality of a service parliament for the purpose of removing the difficulties that came in

his way. According to the committees of minister' powers, the king is regarded popularly as the

impersonation of executive autocracy and such a clause 'cannot but be regarded as inconsistent

wih the principle of parliamentary government'. In Jalan Trading company v. Mill Majdur Sabha

the supreme court was called upon to decide the legality of such a clause. Section 37 (1) of the

payment of Bonus Act 1965 empowered the central government to make such orders, not

inconsistent with the purpose of the act, is might be necessary or expedient for the removal of

any doubts or difficulties. Section 37 (2) made the order passed by the central government under

sub section (1) final. The court by a majority of 3:2 held section 37 ultra vires on the ground of

excessive delegation in as much as the government was made the sole judge of whether any

difficulty or doubt had arisen, whether it was necessary to remove such doubt or difficulties and

whether the order made was consistent with the provisions of the act. Again, the order passed by

the central government was 'final'. Thus, in substance, legislative power was delegated to

executive authority, which was not permissible.

The minority, however, took a liberal view and held that the functions to be exercised by the

central government was not legislative functions at all but were intended to advance the purpose

which the legislature had in mind. In the words of Hidautllah, J. (as he then was): "parliament

has not attempted to set up legislation. I have stated all that it wished the subject of bonus in the

act. Apprehending, however, that in the application of the new act doubts and difficulty might

arrive and not leaving there solutions to the court with the attendant delays and expense,

parliament have chosen to give power to the central government to remove doubt and difference

by a suitable order." It is submitted that the minority view is correct and after Jalan trading

company, the Supreme Court adopted the liberal approach. In Gammon India Ltd. V. Union of

India a similar provision was held constitutional by the court. Distinguishing Jalan Trading

Company, the court observed: "in the present case, neither finality nor alteration is contemplated

in any order under section 34 of the act. Section 34 is for giving effect to the provisions of the

act. This provision is an application of the internal functioning of the administrative machinery."

It, therefore, becomes clear that after Jalan Trading Company, the court changed its view and

virtually overruled the majority judgment. In Patna University v. Amita Tiwari, the relevant

statute enabled the chancellor to issue the directions to universities "in the administrative and

academic interest." In exercise of that power, the chancellor directed the university to regularize

services of an ineligible teacher "on compassionate grounds." When the action was challenged, it

was sought to be supported on the basis of "removal difficulties" clause. Holding that the

"removal of difficulties" clause had only limited application, the Supreme Court quashed the

order. It is submitted that by using a 'removal of difficulties' clause, the government "may

slightly tinker with the act to round off angularities and smoothen the joint or remove minor

obscurities o make it workable, but it cannot change or disfigure the basic structure of the act. In

no case can it under the guise of removing a difficulty, change the scheme and essential

provision of the act" the committee on ministers' powers rightly opined that it would be

dangerous in practice to permit the executive to change an act of parliament and made the

following recommendations: "the use of the so called Henery VIII clause conferring power on a

minister to modify the power of on a minister to modify the provision of acts of parliament

should be abounded in all but most exceptional cases and should not be permitted by parliament

except upon special grounds stated in a ministerial memorandum to the bill. Henery VIII clause

should never be used except for the sole purpose of bringing the act into operation but subject to

the limitation of one year." Conclusion: - Delegated legislation permits the body beneath

parliament to pass their own legislature. Delegated legislation is the legislation made by person

or bodies other than parliament. That person or body must be permitted by the parliament by an

Act passed by the parliament. An Act of Parliament creates the framework of a particular law

and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for

legislation to be delegated it enables other persons or bodies to provide more detail to an Act of

Parliament. Further, delegated legislation can be used to make technical changes to the law, such

as altering sanctions under a given statute. Also, by way of an example, a Local Authority have

power given to them under certain statutes to allow them to make delegated legislation and to

make law which suits their area. Delegated legislation provides a very important role in the

making of law as there is more delegated legislation enacted each year than there are Acts of

Parliament.

MERITS OF DELEGATED LEGISLATION

In modern time there has been an enormous increase in delegated legislation. The circumstances

favouring delegated legislation are as follows:

Pressure of work parliament is a very busy body.it is overburdened with the legislative work.

Within the short span of its life it has to pass a no of legislation and has to take up such intensive

legislative work that it can hardly enact the provision of law in details. If it devotes its time in

laying down minor and subsidiary detail of every legislation by making all the rules required

under it, whole of its time would be consumed in dealing with a few acts only and it would not

be able to cope with the growing needs of legislation. Thus the pressure of work prevents the

legislature to provide all the required details in an act and compels it to delegate its legislative

powers in a limited sense.

Technicality of subject-matter

The legislature has to pass so many laws in modern times, where their contents are technical in

nature .The legislators not being experts or technician, cannot work out details of such laws. The

legislators at the best, could lay down the policy or the principles leaving the details to be filled

up by the executive which is competent to do so by making the rules of technical nature.

To meet unforeseen contingencies

The need of amplifying the main provision of social legislation to meet unforeseen contingencies

or to facilitate adjustment to new circumstances arises all too frequently, for which the

Parliamentary process involves delay, but delegated legislation offers rapid machinery for

amendment.

Expediency and flexibility

In some cases, such as changes in rationing scheme or imposition of import duty or control of

exchange, public interest requires that the provisions of law should not be made public until the

time fixed for its enforcement becomes ripe. Delegated legislation is the only means to achieve

this objective. Moreover, in the case of delegated legislation changes take place more

conveniently without delay, which is not possible in the case of legislation by the parliament.

To meet emergency

In case of emergency which may often arise on account of war, floods, epidemics, economic

depression and the like, the Executive must be armed with the rule-making power so that the

remedial action may be taken immediately. In a modern state there are many occasions when

sudden need of legislative action is felt. To meet such needs delegated legislation is the only

convenient or even possible remedy.

DEMERITS OF DELEGATED LEGISLATION

It has been suggested that by having delegated legislation to make and amend laws.

It lacks democracy as too much delegated legislation is made by unelected people.

Delegated legislation is subject to less Parliamentary scrutiny than primary legislation.

Parliament therefore has a lack of control over delegated legislation and this can lead to

inconsistencies in laws. Delegated legislation therefore has the potential to be used in

ways which Parliament had not anticipated when it conferred the power through the Act

of Parliament.

Delegated legislation is the lack of publicity surrounding it. When law is made by

statutory instrument the public are not normally notified of it whereas with Acts of

Parliament, on the other hand, they are widely publicized.

One reason for the lack of publicity surrounding delegated legislation is because of the volume

of delegated legislation made and this result in the public not being informed of the changes to

law. There has also been concern expressed that too much law is made through delegated

legislation.

NECESSITY OF DELEGATED LEGISLATION

Delegated legislation is necessary for a number of reasons: parliament does not have time to

contemplate and debate every small detail of complex regulations, as it only has a limited

amount of time to pass legislation, delegating legislation will allow however thoroughly debated

regulations to pass through as well as saving parliamentary time. Delegating legislation allows

law to be made more quickly then parliament, which is vital for times of emergency. Parliament

takes longer as it does not sit all the time and its procedures is generally quite slow and complex

due to the several stages each bill has to pass through. Delegated legislation can also be amended

or revoked relatively easily, so that the law can be kept up to date and so that the law can meet

future needs that arise such as areas concerning welfare benefits, illustrating a great deal of

flexibility in the system. Otherwise statutes can only be amended or revoked by another

complicated and time-consuming statute. MPs do not usually have the technical

knowledge/expertise required in for example drawing up laws on controlling technology,

ensuring environmental safety, and dealing with different industrial problems or operating

complex taxation schemes whereas delegated legislation can use experts who are familiar with

the relevant areas. Jacqueline Martin has suggested instead for parliament to debate the main

principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of

it. Another argument for the need of delegated legislation is that parliament may not always be

the best institution to recognize and deal with the needs of local people. As a result local people

elect councilors from certain districts and it is their responsibility to pass legislation in the form

of by-laws to satisfy local needs.

Article 245 and Necessity of Delegation

The necessity of the legislature's delegating its powers in favour of the executive is a part of

legislative function. It is a constituent element of the legislative power as a whole under Article

245 of the Constitution. Such delegation of power, however, cannot be wide, uncanalised or

unguided. Article 245 of Constitution of India Article 245 {Extent of laws made by Parliament

and by the Legislatures of States} Subject to the provisions of this Constitution, Parliament may

make laws for the whole or any part of the territory of India, and the Legislature of a State may

make laws for the whole or any part of the State. No law made by Parliament shall be deemed to

be invalid on the ground that it would have extra-territorial operation. Legislature to lay down

Guidelines for exercising Delegation. The legislature while delegating such power is required to

lay down the criteria or standard so as to enable the delegatee to act within the framework of the

statute. The principle on which the power of the legislature is to be exercised is required to be

disclosed. It is also trite that essential legislative functions cannot be delegated. The procedural

powers are, therefore, normally left to be exercised by the executive by reason of a delegated

legislation. Delegation to be Reasonable and Not Unlimited In Re: Delhi Laws Act (supra) this

Court in no unmistakable terms stated that the legislature may utilize any outside agency to the

extent it finds necessary for doing things which it is unable to do itself or finds inconvenient to

do which would mean such things which are ancillary to the main enactment and necessary for

the full and effective exercise of its power of legislation. Justice Mukherjii, in his opinion, stated:

"It cannot be said that an unlimited right of delegation is inherent in the legislative power itself.

This is not warranted by the provisions of the Constitution and the legitimacy of delegation

depends entirely upon its being used as an ancillary measure which the legislature considers to

be necessary for the purpose of exercising its legislative powers effectively and completely. The

legislature must retain in its own hands the essential legislative functions which consist in

declaring the legislative policy and laying down the standard which is to be enacted into a rule of

law, and what can be delegated is the task of subordinate legislation which by its very nature is

ancillary to the statute which delegates the power to make it. Provided the legislative policy is

enunciated with sufficient clearness or a standard laid down the Courts cannot and should not

interfere with the discretion that undoubtedly rests with the legislature itself in determining the

extent of delegation necessary in a particular case."

DELEGATE NOT TO MODIFY THE BASIC LEGISLATION

As regard delegated power to "restrict and modify", it was held: "delegation cannot extend to the

altering in essential particulars of laws which are already in force in the area in question." "The

power to 'restrict and modify does not import the power to make essential changes. It is confined

to alterations of a minor character such as are necessary to make an Act intended for one area

applicable to another and to bring it into harmony with laws already in being in the State, or to

delete portions which are meant solely for another area. To alter essential character of an Act or

to change it in material particulars is to legislate, and that, namely the power to legislature, all

authorities are agreed, cannot be delegated by a Legislature which is not unfettered." Vivian

Bose, J., however, speaking for a Constitution Bench of this Court in Rajnarain Singh vs. The

Chairman, Patna Administration Committee, Patna and Another, analysed the opinions of

different learned Judges in Re: Delhi Laws Act (supra) and culled out the majority view thus:

"..That an executive authority can be authorized to modify either existing or future laws but not

in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in

general terms, and there was some divergence of view about this in the former case, but this

much is clear from the opinions set out above: it cannot include a change of policy." Krishna

Mohan (P) Ltd. vs. Municipal Corporation of Delhi and Others. This Court held that vague or

uncanalised or unguided power would render the delegation bad in law. The legal position has

been explained by a Constitution Bench of this Court in Kishan Prakash Sharma and Others vs.

Union of India and Others holding : Uncanalised and Uncontrollable Power not permissible

under delegation "...The legislatures in India have been held to possess wide power of legislation

subject, however, to certain limitations such as the legislature cannot delegate essential

legislative functions which consist in the determination or choosing of the legislative policy and

of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate

uncanalised and uncontrolled power. The legislature must set the limits of the power delegated

by declaring the policy of the law and by laying down standards for guidance of those on whom

the power to execute the law is conferred. Thus the delegation is valid only when the legislative

policy and guidelines to implement it are adequately laid down and the delegate is only

empowered to carry out the policy within the guidelines laid down by the legislature. The

legislature may, after laying down the legislative policy, confer discretion on an administrative

agency as to the execution of the policy and leave it to the agency to work out the details within

the framework of the policy. When the Constitution entrusts the duty of lawmaking to Parliament

and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the

shoulders of some other authority." [See also Ajoy Kumar Banerjee and Others etc. vs. Union of

India & Others, Agricultural Market Committee vs. Shalimar Chemical Works Ltd., State Of

Rajasthan & Ors V. Basant Nahata. One cannot interpret the proviso in such a way as to defeat

its purpose. There cannot be any doubt whatsoever that the court shall not invalidate a legislation

on the ground of delegation of essential legislative function or on the ground of conferring

unguided, uncontrolled and vague powers upon the delegate without taking into account the

preamble of the Act as also other provisions of the statute in the event they provide good means

of finding out the meaning of the offending statute. This aspect of the matter has been considered

in some details in People Union for Civil Liberties and Another vs. Union of India and Others

and Andhra Bank vs. B. Satyanarayana and Others, in which one of us was a member. But

preamble and statement of object and reason can only be looked into when there is vagueness or

ambiguity present in the language of the Act as in Arnit Das vs. State of Bihar wherein this Court

has held: "22. All this exercise would have been avoided if only the legislature would have taken

care not to leave an ambiguity in the definition of "juvenile" and would have clearly specified the

point of time by reference to which the age was to be determined to find a person to be a

juvenile. The ambiguity can be resolved by taking into consideration the Preamble and the

Statement of Objects and Reasons. The Preamble suggests what the Act was intended to deal

with. If the language used by Parliament is ambiguous the court is permitted to look into the

Preamble for construing the provisions of an Act (Burrakur Coal Co. Ltd. v. Union of India). A

Preamble of a statute has been said to be a good means of finding out its meaning and, as it were,

the key of understanding of it, said this Court in A. Thangal Kunju Musaliar v. M.

Venkatachalam Potti. The Preamble is a key to unlock the legislative intent. If the words

employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret

the enactment as to harmonise it with the object which the legislature had in its view." So it is

only when the language is itself capable of more than one meaning, then the preamble or the

statement of objects and reasons can be looked into and not when something is not capable of

given a precise meaning as in case of 'Public policy'. Even if the Statement of Objects and

Reasons is looked into to ascertain its meaning then also there is nothing therein which can be

said to be related to morality or public policy. We have, furthermore, not been shown as to how

the preamble or any other provisions of the Act would provide for any guideline in construing

Section 22-A of the Act. The principal contention raised on behalf of the counsel for the

Appellants, as noticed hereinbefore, is that the terminology 'opposed to public policy' itself

provide for such guidelines. Scope of Delegation to meet the purpose of statute. The scope and

ambit of such delegated authority must be so construed, if possible, as not to make it bad because

of the vice of excessive delegation of legislative power. In order to make the power valid, Act

should be so construed in such manner that it does not suffer from the vice of delegation of

excessive legislative authority. Ajoy Kumar Banerjee Vs.Union of India 1984 Air 1130;

Unlimited right of delegation is not inherent in the legislative power.

Gwalior Rayon Silk Mfg. (Wvg.) v. The Asst.Comm. Sales Tax & Ors.

It was only in the fitness of things that the State Legislature should have left the wide preventive

powers under the sections to the discretion of the State Government, charged with the

maintenance of law and order, or to its delegate, to be exercised on their subjective satisfaction.

Dr. N. B. Khare v. The State of Delhi, (1950). But such discretion was by no means unfettered

and uncontrolled. Where there was any abuse of such powers, therefore, what could be struck

down was the abuse itself but not the statute. [Dwaraka Prasad Laxmi Nayain v. The State of

Uttar Pradesh, held inapplicable. Harishankar Bagla v. The State of Madhya Pradesh, relied

on.as quoted in., VIRENDRAVs.THE STATE OF PUNJAB AND ANOTHER, In Avinder Singh

Vs. State Of Punjab, the Supreme Court observed: "The legislature is responsible and responsive

to the people and its representatives, the delegate may not be and that is why excessive

delegation and legislative hara kiri have been frowned upon by constitutional law. This is a trite

proposition but the complexities of modern administration are so baffling intricate and bristle

with details, urgencies, difficulties and need for flexibility that our massive legislatures may not

get off to a start if they must directly and comprehensively handle legislative business in all their

plentitude, proliferation and particularisation. Delegation of some part of legislative power

becomes a compulsive necessity for viability. If the 500odd parliamentarians are to focus on

every minuscule of legislative detail leaving nothing to subordinate agencies, the annual outpet

may be both unsatisfactory and negligible. The Law making is not a turnkey project, ready-made

in all detail and once this situation is grasped, the dynamics of delegation easily follows. Thus,

we reach the second constitutional rule that the essentials of legislative functions shall not be

delegated but the inessentials, however numerous and significant they be, may well be made over

to appropriate agencies. Of course, every delegate is subject to the authority and control of the

principal and exercise of delegated power can always be directed, corrected or cancelled by the

principal. Therefore, the third principle emerges that even if there be delegation, parliamentary

control over delegated legislation should be a living continuity as a constitutional necessity,

Within these triple principles, Operation Delegation is at once expedient, exigent and even

essential if the legislative process is not to get stuck up or bagged down or come to a grinding

halt with a few complicated bills." Employees' State Insurance Corporation And Ors. vs The

Workmen Of Iti Ltd. And Ors.

ESSENTIAL FUNCTIONS CANNOT BE DELEGATED

The Supreme Court, referring to a decision of the High Court of Australia in BAXTER v. AH.

WAY, (1909) 8 CLR 626 at p.637 (Aus.)(A), observed that when the Legislature is given plenary

power to legislate on a particular subject, there must also be an implied power to make laws

incidental to the exercise of such power. It was further observed that it is a fundamental principle

of constitutional law that everything necessary to the exercise of a power is included in the grant

of the power, that the Legislature cannot certainly strip itself of its essential functions and vest

the same on an extraneous authority, and that the primary duty of law making has to be

discharged by the legislature itself but delegation may be resorted to as a subsidiary or an

ancillary measure. With these observations as the back ground, the Supreme Court proceeded to

observe thus: "The legislative policy is apparent on the face of the present enactment. What it

aims, is the statutory fixation of minimum wages with a view to obviate the chance of

exploitation of labour.

Why is it necessary to have controls over delegated legislation?

There are many important reasons why it is necessary to have controls over delegated legislation.

Currently delegated legislation is made by non-elected bodies away from democratically elected

politicians (parliament) , as a result many people have the power to pass delegated legislation,

which provides a necessity for control, as without controls bodies would pass outrageous

unreasonable legislation which was attempted in the past; in the Strictland V Hayes Borough

Council (1986) where a bylaw prohibiting the singing or reciting of any obscene language

generally, was held to be unreasonable and as a result the passing of this delegated legislation

was rejected. Controls over delegated legislation have been essential in order to avoid authorities

abusing there powers, the particular cases are: R v Secretary of State for Education and

Employment, ex parte National Union of Teachers (2000) and Commissioners of Custom and

Excise v Cure and Deely Ltd (1962). Another issue which occurs making controls over delegated

legislation vital is sub legislation, which is where law making is handed down another level to

people other than those who were given the original power to do so, to implement important

policies. Creating criticism that our law is made by civil servants (who may know hardly

anything about the law) and just rubber stamped by the Minister of that apartment, this requires

law passed by these civil servants to be checked by the scrutiny committee of parliament or the

courts. Finally delegated legislation can share the same issues as Acts of Parliament such as

obscure wording that can lead to difficulty in understanding the law, which again makes controls

necessary as parliament or the courts can stop unclear legislation, which will affect the lives of

hundreds of people from passing.

The controls that exist over delegated legislation and criticisms

Control over delegated legislation is through parliament (via affirmative/ negative resolution

procedures as well as through the scrutiny committee) controls over delegated legislation also

exist through the courts (via judicial review and the doctrine of ultra vires

Essence of delegation as summed up by Supreme Court of India

The unavoidable delegation by the Legislature of working out details to the Executive or any

other agency, in view of the multifarious activities of the welfare State is aptly summed up by the

Supreme Court in DEVI DAS GOPAL Krishnan Vs. THE STATE OF PUNJAB AND OTHERS

while taking an excerpt from VASANTLAL MAGAKBHAI SANJANWALA v. THE STATE

OF BOMBAY (1961)1 SCR 341), though at the same, striking note of caution as to whether the

Legislature has exceeded the limits of delegation. It reads as follows: "The Constitution confers a

power and imposes a duty on the Legislature to make laws. The essential legislative function is

the determination of the legislative policy and its formulation as a rule of conduct. Obviously it

cannot abdicate its functions in favour of another. But in view of the multifarious activities of a

welfare State, it cannot presumably work out all the details to suit the varying aspects of a

complex situation. It must necessarily delegate the working out of details to the executive or any

other agency. But there is a danger inherent in such a process of delegation. An overburdened

Legislature or one controlled by a powerful executive may unduly overstep the limits of

delegation. It may not lay down any policy at all; it may declare its policy in vague and general

terms; it may not set down any standard for the guidance of the executive; it may confer an

arbitrary power on the executive to change or modify the policy laid down by it without

reserving for itself any control over subordinate legislation. This self-effacement of legislative

power in favour of another agency either in whole or in part is beyond the permissible limits of

delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned

statute whether the Legislature exceeded such limits. But the said liberal construction should not

be carried by the Courts to the extent of always trying to discover a dormant or latent legislative

policy to sustain an arbitrary power conferred on executive authorities. It is the duty of the Court

to strike down without any hesitation any arbitrary power conferred on the executive by the

Legislature."

In respect of another provision of the very Act, namely the Employees' State Insurance Act,

1948, i.e. in respect of Section 1(3) thereof, the Supreme Court considered the necessity of the

Legislature resorting to delegation in view of the necessity of existence of several circumstances

in order to bring into force the Act to a particular area. The Supreme Court observed that in the

very nature of things, it would have been impossible for the Legislature to decide in what areas

and in respect of which factories the Employees State Insurance Corporation should be

established and that it was obvious that a Scheme of this kind, though beneficent, could not be

introduced in the whole of the country all at once and that such beneficial measures which need

careful experimentation have some times to be adopted by stages and in different phases, and, so,

inevitably the question of extending the statutory benefits contemplated by the Act has to be left

to the discretion of the appropriate Government. The Supreme Court further observed that the

course adopted by the Legislature in dealing with the welfare schemes has uniformly conformed

to the same pattern and the Legislature evolves a scheme of social and economic welfare, makes

elaborate provision in respect of it and leaves it to the Government concerned to decide when,

how and in what manner the Scheme should be introduced.

BIBLIOGRAPHY

Books Referred

1. Delegation of Legislative Powers by Monica Chawla

2. Administrative law by C. K. Takwani

3. Constitution of India by V. N. Shukla