Escolar Documentos
Profissional Documentos
Cultura Documentos
Introduction ..................................................................................................................................... 3
Laissez faire ................................................................................................................................ 3
Drawbacks............................................................................................................................... 3
Social welfare state ..................................................................................................................... 3
Administrative Law .................................................................................................................... 4
Function .................................................................................................................................. 4
Definition ................................................................................................................................ 5
Principles of Constitutional Law and their impact ......................................................................... 5
Constitutional Law and Administrative law ........................................................................... 5
Rule of law .............................................................................................................................. 5
Separation of powers............................................................................................................... 7
Classification of functions .............................................................................................................. 8
Terminological in exactitude .................................................................................................. 9
Identification of a legislative order ......................................................................................... 9
Delegated Legislation ................................................................................................................... 11
Reasons for growth of delegated legislation ............................................................................. 12
Need for safeguards .............................................................................................................. 12
Special forms of delegated legislation ...................................................................................... 18
(a) Skeletal Legislation .................................................................................................... 18
(b) Power to include ......................................................................................................... 19
(c) Power to exempt ......................................................................................................... 19
(d) Power to modify the statute ........................................................................................ 19
(e) Power to amend schedule ........................................................................................... 19
(f) Territorial extension of statute ....................................................................................... 19
(g) Applying provisions from another Act with modifications ........................................ 20
(h) Henry VIII clause ....................................................................................................... 20
(i) Power of taxation ........................................................................................................... 21
(j) Delegation to municipal bodies ...................................................................................... 21
Conditional Legislation ............................................................................................................. 22
Distinction between Delegated Legislation .......................................................................... 23
Doctrine of excessive delegation .............................................................................................. 23
Judicial Control over Delegated Legislation................................................................................. 24
Introduction
Laissez faire
State was initially organized on the basis of Laissez faire [Lesser Control]. They were also called
Law and Order State or Police State. It emphasized on: -
Individualism
Individual enterprise
Self-help.
Such a State was characterized by minimum government action, maximum free enterprise and
contractual freedom.
The role of the State was ‘negative’ in nature. Its functions were limited to: -
Defending the territory from external aggression
Maintenance of law and order within the territory
Dispensation of justice
Collection of taxes for the above mentioned tasks
Management of social and economic life was not considered to be the responsibility of the state.
Drawbacks
The laissez faire doctrine resulted in Human misery. This was due to the reason that: -
Bargaining position of every person is not equal
Uncontrolled contractual freedom led to exploitation of weaker sections
Administrative Law
Function
The modern administrative law, in a welfare state has been assigned with more and more power
due to the reasons we discussed above. This increase in power clothes the administrative organ
with the capacity to impinge on individual rights. It is the demand of prudence that when
sweeping powers are granted on administrative organs, effective control mechanisms be also
evolved so as to ensure that the officers do not use these powers in unwarranted manner.
It is the function of administrative law in a democratic society to draw a fine balance between the
conflicting claims of the individual and the administration. It seeks to readjust the relationship
between public power and individual rights. It balances control and efficiency.
In administrative law, inevitably the private party is confronted by the agency of the government
endowed by all the prestige power and resources enjoyed by the possessor of sovereignty. The
starting point is the basic inequality of parties. The goal of administrative law is to redress this
inequality of the parties. The goal of administrative law is to redress this inequality – to ensure
that, as far as possible, the individual and the state are placed on a plane of equality before the
bar of justice.1
Administrative if not carried out efficiently weaken the government. Though efficiency of
administration though desirable is not the only yardstick, the achievement of efficiency must be
in consistent with attainment of justice to the individual.
Vast powers of administration could either lead to a welfare state or a totalitarian regime,
depending on how it is controlled and effectuated.
Definition
Jennings
Dicey
Wade and Phillip
1
Schwartz, Administrative law
a man’s liberty, must be able to justify its action as authorized by law – and in nearly every case
it will mean authorised directly or indirectly by an Act of Parliament.
Dicey defined Rule of law as ‘the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes the existence of arbitrariness of
prerogative, or even wide discretionary authority on the part of the government.’ Dicey was of
the opinion that wherever there is discretion there is room for arbitrariness which led to
insecurity of legal freedom of the citizens. So according to Dicey the three elements for rule of
law was: -
1
2
3
Dicey vehemently criticised the system of Droit Administratif (Counseil d’Etat) prevailing in
France. Under that system there were separate administrative tribunals for deciding cases
between the government and the citizens, and the officials in their official capacity were
protected from the ordinary law of the land and from the jurisdiction of the ordinary courts, and
were subject to official laws administered by official bodies.
Dicey characterised the French system to be despotic and one designed to protect the guilty
administrative officials. The idea of having separate bodies to deal with disputes in which the
government is concerned, and keeping such matters out of purview of the common courts
asserted Dicey, was utterly unknown to the law of England.
Dicey has been criticised for being factually wrong in his analysis of the position in England as
he ignored the privileges and immunities enjoyed by the Crown, and also ignored many statutes
which conferred discretionary power on the executive which could not be called into question in
ordinary courts. Also, he misunderstood and miscomprehended the real nature of French Droit
Administratif.
The truth is that in many aspects the Droit Administratif has been found to be more effective in
controlling the administration and protecting individual rights. The real test of the legal system is
not whether courts decide all controversies or not, but whether is effectively controls
administrative powers and whether it provides an effective redressal mechanism to the individual
in case he feels aggrieved by administrative action.
Dicey deprecated administrative law as being inconsistent with the rule of law, but it has now
developed into a fairly well defined system in every country. Another defect of Dicean analysis
has been his characterisation of discretionary powers as being incompatible with rule of law.
Dicey insisted on the absence of not only ‘arbitrary’ but even of ‘wide discretionary’ powers. But
exigencies of modern government make wide discretionary power inescapable. If therefore rule
of law negates wide discretionary powers, then no modern democratic society has rule of law.
Rule of law
Administration does not enjoy any power outside the law
Rule of law is associated with the supremacy of courts
Distinction to be drawn between arbitrary powers and discretionary powers
Administrative law seeks to explore limitations on administrative power.
Growth of administrative law Incomplete
Separation of powers
If the rule of law doctrine enunciated by Dicey affected the growth of administrative law in
Britain, the doctrine of separation of powers was a principal barrier to the development of
administrative law in United States. The truth is while doctrine of separation has affected the
character of the American administrative law, the doctrine itself has been effected by the newly
emerging trend in favour of administrative law.
The doctrine of separation of powers is traceable in its modern form to the French political
philosopher Montesquieu, emphasizing the mutual exclusiveness of the three organs of the
government. The main idea is that each of these organs should exercise only one type of function
and there should not be concentration of all the functions in one organ as it will pose a threat to
personal freedom.
Administrative law and separation of powers doctrine are somewhat incompatible, for modern
administrative process envisages mingling of various types of functions at the administrative
level. Administrative process arises because new demands are made on the government to solve
many complex socio-economic problems of the contemporary society. For practical reasons
therefore the doctrine of separation has to be diluted somewhat to accommodate the growth of
administrative process.
The significant breach in the doctrine occurred when the courts conceded that legislative power
could be conferred on administrative authorities, and thus the system of delegated legislation
came into vogue. But in a bid to reconcile the separation of powers doctrine with the new
institution, the Courts laid down that Congress cannot confer an unlimited legislative power on
an administrative authority, that the Congress must not give up its position as primary legislator
and the Congress should therefore lay down the policy which the delegate is to follow while
making rules. This lead to the emergence of doctrine of excessive delegation.
A further encroachment was made in the doctrine of separation of powers when adjudicatory
powers came to be conferred on the executive and some administrative tribunals.
A far more serious dilution occurred when autonomous statutory regulatory commissions
endowed with triple functions, legislative administrative and adjudicatory, along with powers of
investigation and prosecution, were established to regulate new areas of activities.
As Justice Jackson points out, the administrative agencies ‘have become a veritable fourth
branch of government, which has deranged our three branch legal theories much as the concept
of a fourth dimension unsettles out three-dimensional thinking.2
2
Federal Trade Comm. v. Ruderoid Co., 343 U.S. 470 (1952)
So far the vesting of three types of function in one body has not been held to be unconstitutional.
With the emergence of such bodies, the view has come to be advocated that the danger of
tyranny or injustice (which the theory of separation of powers seeks to avoid) lurks in
‘unchecked’ power not in ‘blended’ power and, therefore, the more important thing is to have
checks and balances.
The separation doctrine though not applicable in its strict form to contemporary government,
nevertheless, is not entirely redundant. Its object is the preservation of safeguards against
capricious exercise of power; and incidentally it lays down the broad lines of an efficient
division of functions. Its logic is the logic of polarity rather than strict classification… the great
end of the theory is, by dispersing in some measure the centres of authority to prevent
absolutism.
USA Administrative Procedure Act, 1946. Freedom of Information Act, 1967. Sunshine Act,
1976. Administrative Conference of United States, made by a Congressional Act in 1964.
Droit Administratif
Classification of functions
An administrative lawyer has at times to classify action taken by the Administration into three
categories: -
Legislative
Administrative
Adjudicative or quasi-judicial
There are objections to such classifications as it is usually artificial or too difficult to make such
a classification. But the fact remains that in the present state of administrative law such labelling
exercise, as much of the law relating to executive government is still based on such
classification.
Distinguishing between legislative function on one hand and administrative/quasi-judicial
function on the other hand assumes practical importance for the following reasons: -
Publication: - Usually a legislative order is required to be published in an official
gazette, but not an administrative order. The reason being the former is of a general
nature and applies to many persons and hence should be widely known, but the latter
applies to a specified individual or individuals and therefore is enough if it is served on
the affected persons.
Procedure: -Different procedures may have to be followed by the administration in the
making of orders of different kinds. There arise procedural differences depending on the
nature of the order in question. For making a quasi-judicial order, the administration must
follow the rules of natural justice, even if when the specified statute under which the
action in question is being taken is silent on the point. But, in exercise of legislative
power, the administration need not follow principles of natural justice, it need only
follow the norms as stipulated in the relevant statute, there being no obligatory implied
procedural requirements to be followed in the case.
Judicial Review: - The scope of judicial review is narrower in respect of legislative
function than in the case of administrative or quasi-judicial function. For example, while
mala fides can may be pleaded as a ground for challenging administrative action, it is
doubtful whether the same ground may be invoked to challenge a legislative order.
Sub-delegation: -Difference between legislative and non-legislative functions also may
become meaningful when questions of sub-delegation of powers arise.
Legislative activity whether plenary or subordinate is not subject to the rules of natural justice.
Terminological in exactitude
The term ‘administrative’ is used in two sense: -
On a broad sense the expression administrative law denotes the law pertaining to
administration and denotes the whole gamut of powers exercised by administration. It
denotes all kinds of bodies participating in the administrative process (other than the
legislature and courts) and all kinds of functions discharged whether administrative,
legislative, quasi-judicial or of any other kind.
In a narrow sense, it denotes only a limited category of functions discharged by the
administration – functions in juxtaposition to legislative and quasi-judicial functions
3
K.I. Shephard v. Union of India, AIR 1988 SC 686
4
Express Newspapers Ltd. v. Union of India, AIR 1958 SC 758
The distinction between legislative and administrative is disappearing into an illusion with the
proliferation of delegated legislation and so it is difficult in theory and impossible in practice to
draw a distinct line between legislative and administrative function.
It is however emphasised that the courts should be wary of unduly extending the frontiers of
legislative function, as this concept is often invoked by the administration to deny hearing to
affected persons. The more the concept of legislative function expands the less scope there will
be to invoke procedural safeguards for the affected interests. In this way much of the gains made
by expanding the concept of natural justice will be neutralized correspondingly.
Price fixing has been considered as legislative function.5 It may also be emphasized that even
though an order in its final form may seem to be legislative, it may still be preceded by some
kind of adjudicatory process. Certain facts may have to be determined by the administration
before making the order. For example, it is possible to argue that in price-fixation, two major
considerations are: cost of production to a producer and his margin of profit, both of these seem
to be adjudicative facts and fairness demands that these facts ought not to be decided by the
concerned authority without giving a hearing to the producer as these facts directly pertain to
him. There seems to be no reason to deny application of natural justice to pre-order stage in such
a case.
Delegated Legislation
A trend very much in vogue today in all democratic countries is that only a relatively small part
of the total legislative output emanates directly from the legislature. The bulk of legislation is
promulgated by the executive and is known as delegated legislation.
Delegated legislation has been defined by Salmond as ‘that which proceeds from any authority
other than the sovereign power and is therefore dependent for its existence and validity on some
superior or supreme authority.
Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but
inevitable infringement of separation of powers. But in reality it is no more difficult to justify it
in theory than it is possible to do without it in practice. There only a hazy borderline between
legislation and administration, and the assumption that they are two fundamentally different
forms of power is misleading. There are some obvious general differences. But the idea that a
clean division can be made (as it can more readily be made in the case of judicial power) is a
legacy from an older era of political theory.
A subordinate legislation, when validly framed becomes a part of the principal Act. A delegatee
must act within the four corners of the statute. Rules cannot be made to supplant the provisions
of the delegated Act, but to supplement it. What is permitted is the delegation of ancillary or
subordinate legislative functions, which is fictionally called, a power to fill up details.6
5
Initially was considered to be judicial in nature but judicial view underwent a change in SI. Syndicate Case, AIR
1975 SC 460. For further information refer Pages 58 onwards (Ed.8)
6
St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321
The rules which are not issued under any statutory provision and also are not notified in
the Official Gazette are not statutory rules.7
An Act is usually preceded by the ‘object and purpose’ clause. Its absence in the
regulation or the later amendments introduced in it only adds to the difficulties of the
court in properly construing the provisions of the regulations dealing with complex
issues. It is high time to change the practice and include ‘object and purpose’ clause
before delegated legislation also.8
Deeming or legal fiction can only operate prospectively not retrospectively.9
7
K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515
8
Daicchi Sankyo Company Limited v. Jayaram Chigurupathi, (2010) 7 SCC 449
9
Daicchi Sankyo Company Limited v. Jayaram Chigurupathi, (2010) 7 SCC 449 (Check)
10
Committee for Ministers Powers Report
United Kingdom
In the U.K. since the Parliament is sovereign, there are no restrictions on the capacity of the
Parliament to confer its law making power to an administrative agency.
United States
In the United States the Courts have raised two theoretical objections against delegation of
legislative power to the executive, they are: -
Based on the doctrine of separation of powers
As already discussed the exigencies of modern government make it practically impossible not to
have delegation of legislative power. Hence pragmatic considerations have prevailed over
theoretical objections and in course of time the courts have relaxed the rigours of separation of
powers and permitted broad delegation of legislative power subject to the rider that Congress
itself should lay down standards or policy for guidance and that delegation should not be vagrant
and uncontrolled, and that congress should not give a blank cheque to the executive to make any
rules it likes; for to do so would amount to abdication of its functions by Congress.
To uphold the legislation there is a need to discover in terms of the Act a standard reasonably
clear whereby the discretion must be governed. The principle that authority granted by the
legislature must be restricted by an adequate standard serves the theory of separation of powers
by ensuring that fundamental policy decisions must be made by the legislature and not by
officials. Prescribing legislative policy is regarded as ‘essential legislative function’ and this
function must be discharged by democratically elected legislature itself; it ought not be left to
any politically unresponsive delegate.
Only in three cases of significance has the delegation held to be excessive so far. (Panama,
Schechter Carter Coal Co.)
Based on the doctrine of delegates non potest delegare
The theory has been diluted.
India
The Federal Court under the Government of India Act, 1935 had held that there could be no
delegation of legislative power in India beyond conditional legislation.11 After Independence the
question was raised whether the Parliament in independent India should be restricted to this form
of delegation, or should it be given greater freedom. The Constitution of India did not provide
any clear guidance on this point as there is nothing in the Constitution either expressly
prohibiting or permitting the legislature in the matter of delegation. Therefore, if the Supreme
Court had to find any restriction on the legislature in the matter of delegation it had to be on the
basis of some general theories and principles of constitutional law, but not on the basis of any
specific provision in the Constitution. The Supreme Court was faced with all these questions in
the case In re Delhi Laws Act, and the Court opted for the American Model.
11
Atindra Nath v. Province of Bihar, AIR 1949 FC 175
In Re Delhi Laws Act, 1912 (AIR 1951 SC 332)
There were a few Part C States under the direct administration of the Central Government,
without having a legislature of their own. Parliament had to legislate for these States. As it was
very difficult for Parliament to find the time to do so in view of its other manifold engagements,
Parliament enacted a law, the Part C States (Laws) Act, 1950.
The said Act authorised the Central Government to extend to any Part C State, with such
restrictions and modifications as it thought fit, any amendment in force is a Part A State, and
while doing so it could it could repeal or amend any corresponding law (other than a Central
law) which might be operative at that time in the Part C State.
Undoubtedly it was a sweeping delegation. The Government could extend to a Part C state any
law made by the State Legislature, at any time (not only laws prevailing in 1950 but even those
made subsequently), and even modify the law before extension. And if there was already a law in
force in Part C State on the point, it could either be repealed or modified when the law was
extended.
The Supreme Court was called upon to adjudge the validity of the provisions by a Reference
under Article 143. A Seven Judge Bench of the Supreme Court participated in the decision and
seven opinions were delivered. The Supreme Court concluded that: -
The legislature must normally discharge its primary legislative function itself and not
through others
Once it is established that it has sovereign powers within a certain sphere, it must follow
as a corollary that it is free to legislate within that sphere in any way which appears to it
to be the best way to give effect to its intention and policy making in a particular law, and
it may utilize any outside agency to any extent it finds necessary for doing things which it
is unable to do itself or finds it inconvenient to do. In other words, it can do everything
which is ancillary to and necessary for the full and effective exercise of its power of
legislation.
It cannot abdicate its legislative functions, therefore while entrusting power to an outside
agency, it must see that such agency, acts as a subordinate authority and does not become
a parallel legislature.
The doctrine of separation of powers and the judicial interpretation it has received in
America enables the court to check undue and excessive delegation but the courts of this
country are not committed to that doctrine and cannot apply it in the same way it is
applied in America. Therefore, there are only two main checks in this country on the
power of the legislature to delegate these being its good sense and the principle that it
should not cross the line beyond which delegation amounts to abdication and self-
effacement.
By a majority a specific section in question was held to be valid subject to two riders: -
That the part of it was bad which authorised the government to repeal a law already in
force in Part C state.
The power to effect modifications in state law in its application to a Part C State
envisaged only such modifications as did not change the underlying policy of the law
sought to be extended.
The Delhi Laws Act case achieved two ends: -
o It legitimized delegation of legislative power by the legislature to administrative organs
o It imposed outer limit on delegation by the legislature
The Supreme Court also observed that the two theoretical objections to delegation in United
States do not hold good.
Theory of separation of powers: - The theory of separation of powers does not operate
in the area of legislative executive relationship in our constitutional scheme.
Delegates non potest delegare: - This maxim was rejected by the Judges as being “not a
sound political theory”.
The majority developed an alternative theory, that since the Legislature in India functions under
a written constitution, it cannot enjoy the same freedom as the British Parliament in the matter of
delegation. The result of the approach is that while the legislature can delegate legislative power,
the final say in this respect rests with the courts. If the courts feel that unduly large amount of
legislative power is being conferred on an administrative authority in any specific instance
without adequate checks, it can cry a halt on the process of delegation.
It may be interesting to note that both in America and India, the doctrine of excessive delegation
is purely a judge-made doctrine emanating from some of the basic postulates on which a written
democratic constitution is based. The American and Indian doctrines though practically
congruent are yet based on different postulates. The American doctrine is based on the theory of
separation of powers, while the Indian doctrine is based on the theory of constitutional trust in
the legislature.
Further developments
While the question seemed to be settled in the Delhi Laws Act, and a few subsequent cases, it
was again opened in Gwalior Rayon12. The point of debate in the case was whether the doctrine
of excessive delegation be maintained, modified or given up.
Mathew, J., propounded a theory that so long as Parliament retains the power to repeal the
delegating provision, it retains ultimate control over the delegate and does not abdicate the
legislative function. Therefore, there should be no objection to delegation howsoever broad its
extent. The key to his thinking is to be found in his following observation in his opinion in the
case: “the hunt by court for legislative policy or guidance in the crevices of a statute or the nook
and cranny of its preamble is not am edifying spectacle.
It is thus clear the Mathew, J., was pleading for dilution of doctrine of excessive delegation as he
felt dissatisfied at the flexible way the doctrine had been applied hitherto by the Supreme Court,
12
Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660
for, in order to uphold legislation against argument of excessive delegation the Court had gone to
the farthest limit in some cases to find legislative policy underlying the statute in question. The
whole judiciary thus smacked of artificiality.
But the question is whether this should lead to applying the doctrine in a more meaningful
manner or abolishing the doctrine itself.
The majority of the Court did not agree with Mathew, J., approach. His view would have meant a
complete emasculation of the doctrine of excessive delegation; it would be tantamount to saying
that a legislature can delegate as much legislative power as it desires without any semblance of
restriction, rejecting this view the majority pinpointed dangers which are inherent in this
approach.
The weakness in Mathew. J.’s approach is his lack of appreciation that after Parliament has
delegated power, it cannot, in a practical sense, control it through its power of repealing the law.
Because of party system, to-days legislature passes no law without the initiative and consent of
the executive and it is highly improbable that the executive would ever as the legislature to
repeal a provision delegating legislative power to itself on the ground that delegated power has
been improperly used by the delegate.
Practical application of doctrine of excessive delegation
In innumerable cases broad delegation of legislative power has been upheld. On the whole, the
courts adopt a tolerant, or rather ambivalent, attitude in this matter. The courts do permit a good
deal of latitude to the legislature in the matter of delegation of legislative power, hardly ever
demanding that the legislature lays down policies or standards in the legislation in concrete terms
to guide the delegate in making delegated legislation.
While the Supreme Court invariably reiterates the doctrine that the delegation of legislative
power is valid only if the delegating statute specifies the policies subject to which the delegate is
to exercise its rule-making powers, in actually applying the doctrine to any specific legislation,
the Court has diluted its efficacy a great deal and exhibited anxiety to uphold the legislation
against challenge on the ground of excessive delegation.
To uphold broad delegation against excessive delegation, the Supreme Court adopts several
strategies. Some of them are: -
On Grounds of Policy
o The Court finds principles and policies within or outside the statute, subject to
which delegation is made. Thus, the Court has upheld very broad and general
delegation treating vague statements in the law to amount to adequate policy
statement. The Supreme Court has sought to read policy in: -
the preamble to the Act in question
the delegating provision itself
any other provision of the concerned statute
the scheme or subject matter of the concerned statute
at times even in the previous statute, which the statute in question may
have repealed or replaced.13
o At times the Supreme Court has itself supplied or rationalized the policy when the
same was not discernible from the face of the statute, and to do so has gone into: -
the legislative history of the legislation14
affidavits filed by officers in support of the impugned Act or any other
material
o At times the Supreme Court has met the demand for more definite policy
statement by the argument that the subject-matter of the legislation is such that no
more guidance could possibly be given to the delegate
o At times it treats the purpose for which the delegated legislative power is
delegated as the policy underlying the Act
On Grounds of Procedural Safeguard
o Courts uphold the delegation if it has adequate safeguards. The argument is that
with adequate procedural safeguards woven in the statute, uncontrolled legislative
power has not been delegated and it makes the delegation valid.
Objective of the Act
o The Court upholds broad delegation of powers by resorting to the argument that
in socio-economic and welfare legislation seeking to promote the directive
principles of state policy a generous degree of latitude ought to be permissible to
the legislature in the matter of delegation.15
The Court has also relied on the ‘laying’ requirement to ward off challenge of excessive
delegation.16 These rulings raise some serious questions, in practice the ‘laying’ requirement
does not lead to any effective Parliamentary supervision (other than that of the affirmative type).
Further, it has become a standard legislative practice in India to include a standard ‘laying’
formula in each and every statute enacted. Therefore, if the ‘laying’ procedure comes to be
regarded as an argument to uphold broad delegation of powers, then the doctrine of excessive
delegation will be completely annihilated and all restraints on the Parliament in the matter of
delegation will become inefficacious.
In the case of Quarry Owners Association17 the Supreme Court has observed that where any rule
or notification or rule before the legislature, it comes under the scrutiny of the House, the House
gets the jurisdiction over the same, each member subject to procedure gets the right to discuss
the same. This positive control of the House over the executive makes even mere laying to play a
vital role.
In effect at present the doctrine of excessive delegation has more of symbolic value or is of
formalistic nature. Rarely have legislations been struck down on ground of excessive delegation.
The Supreme Court has observed that even faint glimmering of policy is sufficient to uphold a
13
See, Bhatnagars & Co. v. Union of India, AIR 1957 SC 478
14
Delhi Cloth and General Mills Co. Ltd. v. Union of India, AIR 1983 SC 512
15
Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350
16
Lohia Machines Ltd. v. Union of India, AIR 1985 SC 512
17
Quarry Owners Association v. State of Bihar, (2000) 8 SCC 655
law against the challenge of excessive delegation. Reasons for this permissive and flexible
judicial approach could be that courts realise that they need to apply the doctrine in a pragmatic
manner as opposed to rigid, theoretical and within doctrinaire limits. Courts do not wish to
invalidate socio-economic legislation, lest they should be dubbed reactionary and conservative
and stalling social and economic progress.
An unfortunate result of the permissive judicial attitude has been that the legislature never cares
to formulate principles and policies underlying a legislation with any specificity even when it
may be possible to do so.
Propositions which can be drawn from case laws
The question whether any particular legislation suffered from excessive delegation, has to
be determined by the court having regard to the subject-matter, the scheme, the
provisions of the statute including its preamble and the facts and circumstances and the
background on which the statute is enacted.18
Excessive delegation may amount to abdication and delegation unlimited may invite
despotism uninhibited.19
If the delegation is bereft of guidelines, then it is unsustainable in the eye of law.20
Faint glimmering of policy is sufficient to uphold a law against the challenge of excessive
delegation.21
Rules framed under one Act cannot have overriding effect on the provisions of another
Act.22
Page 104-106 Incomplete Delegator not to revise/review his delegate’s order
18
K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2006) 12 SCC 753
19
Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350
20
B.R. Enterprises v. State of U.P., AIR 1999 SC 1867
21
Ramesh Birch v. Union of India, AIR 1990 SC 560
22
State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296
23
Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660
limitation on power. Example. Essential Supplies (Temporary Powers) Act, 1946.24 (See Page
108)
24
Harishankar Bagla v. State of M.P., AIR 1954 SC 465
25
Mohmedalli v. Union of India, AIR 1964 SC 980
26
Humdard Dawakhana v. Union of India, AIR 1960 SC 554
27
Jalan Trading Co. v. Mill Mazdoor Union, AIR 1967 SC 691
28
Rajnarain v. Chairman PA Committee, AIR 1954 SC 567
29
Edward Mills Co. v. State of Ajmer, AIR 1955 SC 25
(g) Applying provisions from another Act with modifications
A statute may empower the government to apply to certain matters thereunder provisions from
another statute with necessary modifications. For example, Section 43 of LIC Act, 1956
authorises the Central Government to apply provisions of Insurance Act, 1938, with such
modifications and conditions as it thinks fit.
The Supreme Court has reiterated the principle that power to restrict or modify does not import
the power to make essential changes and it is confined to alterations of a minor character and no
change in principle is involved.30
30
N.C.J. Mills Co. v. Asst. Collector Central Excises, AIR 1971 SC 454
31
State Bank of Travancore v. Goodfield Plantations, AIR 1980 SC 650
whether a difficulty has arisen or not is not within the subjective satisfaction of the government
and needs to be established as an objective fact.
It may slightly tinker with the Act, round off angularities, and smoothen the joints or remove
minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic
structure and primary features of the Act. In no case, can it, in the guise of removing a difficulty,
change the scheme and essential provisions of the Act,32
Misuse of the clause.33 (Jalan Trading Companies case also dealt with Henry VIII clause)
Example: Article 392(1) and 372, Section 19A of Provident Fund Act, 1952
32
M.U. Sinai v. Union of India, AIR 1975 SC 797
33
Krishnadeo Misra v. State, AIR 1988 Pat 9
34
S.B. Dayal v. State of U.P., AIR 1972 SC 1660
35
Orient Weaving Mills v. Union of India, AIR 1963 SC 98
36
Babu Ram v. State of Punjab, AIR 1979 SC 1475
37
Devi Das v State of Punjab, AIR 1967 SC 1895
38
State of Kerala v. Madras Rubber Factory Ltd., AIR 1998 SC 723
39
B. Krishna Bhat v. State of Karnataka, AIR 2001 SC 1333
The nature of the body to which delegation is made is also a factor to be taken into consideration
in determining whether there is sufficient guidance in matter of delegation.40
State legislatures without specifying what taxes municipalities may levy, confers them power to
levy any tax which the Legislature itself may levy. This is extremely broad legislation and prima
facie, on general principles it would be invalid on ground of excessive delegation. Nevertheless,
the Supreme Court has upheld such a provision arguing that only such taxes may be levied by a
municipality as are necessary to implement the purposes specified in the statute, and this
provides a sufficient guideline to the municipality. Also, prior sanction of the Government is
necessary for imposing such a tax.41
Conditional Legislation
As pointed out earlier the only form of delegation which was acceptable was conditional
legislation. The idea behind this term is that the legislature makes the law which is complete and
full in all respects, but is not bought into operation immediately. The enforcement of the law is
made dependent upon the fulfilment of a condition, and what is delegated to the outside agency
is the authority to determine, by exercising its own judgement, whether or not the condition has
been fulfilled. Thus in conditional legislation the law is there but its taking effect is made to
depend upon determination of some fact or condition by an outside agency.42
The doctrine of conditional legislation is reminiscent of the colonial days when the Privy Council
had to draw a kind of compromise between the exigencies of administration demanding
delegation, and the limited character of the colonial legislature bound as they were by the statute
of British Parliament. The Privy Council did not like to commit itself to the position that the
subordinate legislatures could delegate legislative power, and the term ‘conditional legislation’
was evolved to denote that what was being delegated was some minor legislative power.
Conditional legislation can be broadly categorised into three categories: -
When the legislation is ready but its future applicability to a given area is left to the
subjective satisfaction of the delegate, who being satisfied about the conditions indicating
the ripe time for applying the machinery of the said Act to a given area, exercising the
power as a delegate of the parent legislative body.
When the Act is complete and is enacted to be uniformly applicable in future to all those
covered under the sweep of the Act, the legislature is said to have completed its task. All
that it leaved to the delegate is to apply the same uniformly to a given area given in the
parent legislature itself but at an appropriate time. This would be an act of pure and
simple conditional legislation.
Legislature fixes up objective conditions for the exercise of power by the delegate to be
applied to past or existing facts and for deciding whether the rights or liabilities created
40
Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1968 SC 1232
41
Western India Theatres Ltd. v. Municipal Corporation, AIR 1965 SC 586
42
R.K. Trivedi v. Union of India, (1988) SCC 58
under the statute are to be denied or extended to particular areas. This exercise is not left
to his subjective satisfaction not is it a mere ministerial exercise.
43
Lachmi Narain v. Union of India, AIR 1976 SC 714
44
Tulsipur Sugar Co. v. Notified Area Committee, AIR 1980 SC 882
45
State of Tamil Nadu v. K. Sabanayagam, (1998) 1 SCC 318
46
Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660
47
Avinder Singh v. State of Punjab, AIR 1979 SC 312
The doctrine of excessive delegation can play a very useful role in curbing executive power
during an Emergency under Article 352 of the Constitution when Fundamental rights are
suspended,48
48
Makhan Singh v. State of Punjab, AIR 1964 SC 381