Table of Contents 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 of Laissez faire [Lesser 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 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
Social welfare state The drawback of laissez faire lead faire lead to the growth growth of a political dogma of ‘collectivism’. Collectivism favored state intervention in, and social control of individual en terprise. That is the State started to act in the interest of social justice; it assumed a ‘positive role’. It laid emphasis on the role of the state as a vehicle of socio-economic regeneration and welfare of the people. The emergence of social welfare state has led to State activism i.e. a phenomenal increase in the area of state operations. The functions of the modern state can be broadly placed into five categories:
State as protector State as provider State as entrepreneur State as regulator State as arbiter
State activism has inevitably lead to the State assuming more powers in the quest of improving the physical, moral and economic welfare of the people. This has led to extension in range of
functions for all the branches of the state. The largest extension in depth and range of functions is at the executive-cum-administrative organ. The hegemony of the executive has now become an accepted fact; the administrative organ does a wide range of functions such as:
Legislative: The legislation usually lays down the policy and lets the executive fill in the details, this primarily known as delegated legislation has assumed more importance (qualitatively and quantitatively) than even the legislation enacted by the legislature. Adjudicatory: It has acquired not only the power to adjudicate over not only between itself and private individuals but also between individuals per se, and thus has emerged a plethora of tribunals. Discretionary: It has also assumed a wide range of discretionary powers with regard to licenses, permits etc.
The assignment of such wide range of o f powers has become a necessity n ecessity as most of the contemporary complex socio economic are a re best tackled by the administrative process rather than traditional legal and judicial processes. The Legislative body is best suited for determining the direction of major policy but it would not be suitable for determining minute details primarily due to:
Lack of time Lack of expertise Traditional process would be inflexible to meet contingent or un foreseen circumstances Preventive administrative action is better
Administrative adjudication has been preferred primarily due to:
It could be disposed expeditiously Less formality and technicality Requirement of specialized skills for determination of disputes
Administrative Law Function The modern administrative law, in a welfare state h as been assigned with more and more power due to the reasons we discussed above. abo ve. 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 democ ratic 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 po wer 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 ad ministrative law is to redress this inequality – inequality – to 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. Thou gh 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 o r a totalitarian regime, depending on how it is controlled and effectuated.
Definition Jennings Dicey Wade and Phillip
Principles of Constitutional Law and their impact Constitutional Law and Administrative law There is deep, intimate and abiding ab iding relationship between Constitutional law and Administrative law. The Constitutional law of a country affects the complexion of administrative law. While strict demarcation between Constitutional law and Administrative law is not possible, still there exists an essential difference between the two: -
Constitutional law Deals mainly with the structure organization powers and functions of all three organs of the state
Administrative law Mainly deals with administration visà-vis individual. Concern is more about exercise of statutory power of administrative authority rather than organization They deal with powers and function of government Function of both is to diffuse powers of the state and control them Both are branches of public law and supplement each other
Rule of law Rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to law. Applied to powers of government it requires that every government authority which does something which would otherwise be wrong or infringes
1
Schwartz, Administrative law
a man’s liberty, must be able to justify its action as authorized by law – law – and 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 a rbitrariness 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 of Droit Administratif (Counseil (Counseil d’Etat) d’Etat) prevailing in France. Under that system there were separate ad ministrative 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 French Droit Administratif. The truth is that in many aspects the Droit the Droit Administratif has has been found to be b e 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 b y administrative action. Dicey deprecated administrative law as being inco nsistent with the rule of law, but it has now developed into a fairly well defined system s ystem 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 wid e 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 adm inistrative 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 h as 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 oc curred when the courts conceded that legislative power could be conferred on administrative ad ministrative authorities, and thus the system of delegated legislation came into vogue. But in a bid to reconcile the separation sep aration of powers doctrine with the new institution, the Courts laid down that Congress cannot co nfer 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 adjudicator y powers came to be conferred on the executive and some administrative tribunals. A far more serious dilution occurred when autono mous statutory regulatory commissions endowed with triple functions, legislative administrative and adjudicatory, along with pow ers 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, and, therefore, the more important thing is to have checks and balances. The separation doctrine though not applicable ap plicable in its strict form to contemporary government, nevertheless, is not entirely redundant. Its object is the preservation of safegu ards against capricious exercise of power; and incidentally it la ys down the broad lines of an efficient division of functions. functions. Its logic is the logic of polarity rather than strict classification… the great end of the theory is, b y dispersing in some measure the centres of autho rity to prevent absolutism. USA Administrative Procedure Act, 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 b y 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 ad ministrative 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 b e 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 b e followed by the administration in the making of orders of different kinds. There arise procedural differences depending o n 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 le gislative power, the administration need not follow principles of natural justice, it 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 n arrower 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 ex pression administrative law denotes the law pertaining to administration and denotes the whole gamut of powers ex ercised by administration. It denotes all kinds of bodies participating in the ad ministrative process (other than the legislature and courts) and all kinds of functions discharged wh ether administrative, legislative, quasi-judicial or of any other kind. In a narrow sense, it denotes only a limited category of functions discharged by b y the administration – administration – functions functions in juxtaposition to legislative and quasi-judicial functions
Identification of a legislative order The present day administrative law suffers from conceptual confusion. The terms legislative, and administrative and quasi-judicial are used constantly, but none of these concepts is susceptible of an articulate definition. One of the most difficult problems of administrative law is to identify the nature of a function discharged by b y the administration. There is really no bright line o f distinction between these concepts. Howsoever the definition of any of these con cepts be formulated, it either excludes, or includes, something which ought to be included, or excluded, from the purview of that concept. Whatever test is propounded to identify these concepts, there will always be some exceptional situations falling on the other side of the line. How to distinguish ‘legislative’ from other types of functions? When a statute confers power on the administration to make rules, regulations, bye-laws etc., it is eas y to identify them as delegated legislation. But how to identify delegated legislation when these terms are not used? Are such functions as price-fixing, wage-fixing, fixing tax rates legislative in nature? No articulate norms have been evolved so far to distinguish between legislative and nonlegislative functions. Difficulties in characterisation arises due to:
Many times administrative bodies perform and exercise mixed functions. Statute may give power to administration to make orders for certain purposes. The orders may be legislative or non-legislative.
In the United States, two tests have been propounded to identify legislative functions.
Generality: -One test depends on the element of applicability; i.e. legislative function is normally directed towards the formulation of requirements having a general application to all members of a broadly identifiable class. As against this, an administrative decision is one which applies to a specific individuals o r situations. Similarly power to take specific action is administrative. Power to take general action is legislative. Futurity: -Rule prescribes future patterns, while an administrative decision determines liabilities on the basis of present or past facts.
When applying the generality there could cou ld be a possibility that statements of particular applicability, but having future effect, may be characterised as legislative function. And vice versa. Both these tests are workable in majority of situations, though there may arise some situations where the test may not work. These tests are only a broad test which may not necessarily be true or decisive always, and other considerations may be taken into account by the court to decide the nature of the particular administrative act.3 In England Committee of Minsters Powers evolved a definition which involved both these tests which is ‘legislation is the process of formulating a general rule of conduct, without reference to particular cases, and usually operating in futuro in futuro;; administration is the process of performing particular acts, of issuing particular orders orders or of making decisions which apply general rule to particular cases.’ Administrative act cannot be exactly defined, but it includes the adoption of policy, polic y, the making and issue of specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy expediency or administrative practice. With the help of the above mentioned test it is possible to distinguish between legislative function from any other kind of function in a large number of situations. But there may be cases where the test may breakdown for it may not be easy to distinguish ‘general’ from ‘particular’. The test of generality of an order is not no t very articulate and gives enough enou gh scope for judicial policy to have a play. The Th e distinction between what is general and what is particular in its application is in itself only a matter of degree. The Court has pointed out that a particular difficulty arises in characterising the functions of administrative agencies because their functions do not fall in watertight compartments. This difficulty might be resolved by the court considering whether the agency performs a predominantly legislative or administrative or quasi-judicial function. function. But after analysis of the position the court refused to pronounce a final verdict in the case.4
3 4
K.I. Shephard v. Union of India, India , AIR 1988 SC 686 Express Newspapers Ltd. v. Union of India, 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 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 b e 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 le gislative function.5 It may also be emphasized that even though an order in its final form may ma y seem to be legislative, it may still be preceded b y some kind of adjudicatory process. Certain facts may ha ve to be determined by the th e 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 produc er 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 he aring 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 vo gue today in all democratic countries is that o nly 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 b y Salmond as ‘that which proceeds from any an y 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 haz y borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvio us 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 d elegatee must act within the four corners of the statute. Ru les cannot be made to supplant the provisions of the delegated Act, but to supplement it. What is permitted is the delegation o f 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 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 no tified in 7 the Official Gazette are not statutory rules. An Act is usually preceded by the ‘object and purpose’ clause. Its absence in the regulation or the later amendments introduced in it on ly 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
Reasons for growth of delegated legislation Delegated legislation is a method to economise le gislative time. ‘The truth is truth is if the Parliament were unwilling to delegate law making power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires. The Practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out of practical necessity and pragmatic needs of modern welfare state. The system of delegated legislation is both legitimate and constitutionally desirable for certain purposes, within certain limits, and under certain safeguards.’ safeguards.’10
Pressure on Parliamentary time Delegated legislation has the advantages of flexibility, elasticity, expedition and opportunity for experimentation. Technically complex matters
Need for safeguards In spite of its usefulness and indispensability, delegated legislation suffers from several defects as well. To some extent, it does involve abandonment of its functions by the legislature and enhancement of powers of administration. Power flows from the le gislature to the bureaucracy. The question today is not whether there the re should be delegated legislation, but subject to what safeguards it should be resorted to. The controls o ver delegated legislation operate on two levels:
At the point of delegation of powers. The question here is how much power should the legislature be allowed to delegate Control mechanism operates at the point of exercise o f delegated legislative power by the administrative. The question here is what mechanism should b e put into being so as to minimize the hazards of the technique of delegated legislation.
At both levels the controls are supplementary to each other. The efficacy of control in second stage to a large extent depends upon the first.
7
K.A. Nagamani v. Indian Airlines, (2009) Airlines, (2009) 5 SCC 515 Daicchi Sankyo Company Limited v. Jayaram Chigurupathi, Chigurupathi , (2010) 7 SCC 449 9 Daicchi Sankyo Company Limited v. Jayaram Chigurupathi, Chigurupathi , (2010) 7 SCC 449 (Check) 10 Committee for Ministers Powers Report 8
United Kingdom In the U.K. since the Parliament is sovereign, sove reign, there are no restrictions on the capacity cap acity 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 p owers
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 ex cessive 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 be yond conditional legislation.11 After Independence the question was raised whether the Parliament in indepen dent India should be restricted to this form of delegation, or should it be given greater freedom. The Constitution of India did n ot provide any clear guidance on this point as there is nothing in the Constitution either ex pressly prohibiting or permitting the legislature in 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 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
I n 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 co rresponding 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 modif y the law before extension. And if there was already a law in force in Part C State on the t he 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 a ny 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 a ny 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 onl y 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 selfeffacement.
By a majority a specific section in question que stion 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 app lication 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 o
It legitimized delegation of legislative power by the legislature to administrative organs 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 po wers 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, theor y, 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 bo th in America and India, the doctrine doct rine of excessive delegation is purely a judge-made doctrine emanating eman ating 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 o n 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 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 ex cessive 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 h is 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 appl ying the doctrine to any specific legislation, the Court has diluted its efficacy a great deal d eal and exhibited anxiety anxiet y 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 The Court finds principles and policies within or outside the statute, subject to o 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: 14 the legislative history of the legislation affidavits filed by officers in support of the impugned Act or an y other material o At times the Supreme Court has met the demand d emand 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 Courts uphold the delegation if it has adequate safeguards. The argument is that o with adequate procedural safeguards woven in th e statute, uncontrolled legislative power has not been delegated and it makes the delegation valid. Objective of the Act The Court upholds broad delegation of powers by resorting to the argument that o in socio-economic and welfare legislation seeking to p romote 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 requirement to ward off challenge of excessive 16 delegation. These rulings raise some serious questions, in practice the ‘laying’ requirement does not lead to any an y effective Parliamentary supervision (other than that of the affirmative type). Further, it has become become a standard legislative practice in India to include a standard ‘laying’ formula in each and every statute enacted. en acted. 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 d iscuss 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 d elegation 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 See, Bhatnagars & Co. v. Union of India, India , AIR 1957 SC 478 Delhi Cloth and General Mills Co. Ltd. v. Un ion of India, India, AIR 1983 SC 512 15 Registrar, Co-operative Societies v. K. Kunjabmu, AIR Kunjabmu, AIR 1980 SC 350 16 Lohia Machines Ltd. v. Union of India, India , AIR 1985 SC 512 17 Quarry Owners Association v. State of Bihar , (2000) 8 SCC 655 14
law against the challenge of excessive ex cessive 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 dubb ed 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 an y 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, h as 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 a gainst the challenge of excessive delegation.21 Rules framed under one Act cannot have ha ve overriding effect on the provisions of another Act.22
Page 104-106 104-106 Incomplete Delegator not to revise/review his delegate’s order
Special forms of delegated legislation The classification provided in on the bases on power conferred under several broad heads. These categories are not mutually exclusive.
(a)
Skeletal Legislation
It refers to a statute which delegates legislative power without laying down any principle or policy for guidance of the delegate.23 Ordinarily in India, a skeletal statute ought not to b e valid because of the doctrine of excessive delegation which insists that the legislature lay down a policy. But it is not uncommon to fund skeletal statutes in which the legislature lays down no policies, or lays down the barest of policies, or standards or principles, principles, and the executive is given power not only on matters of detail but even on matters of principles and policies without much
18
K.T. Plantation Pvt. Ltd. v. State of Karnataka, Karnataka, (2006) 12 SCC 753 Registrar, Co-operative Societies v. K. Kunjabmu, AIR Kunjabmu, AIR 1980 SC 350 20 B.R. Enterprises v. State of U.P., AIR U.P., AIR 1999 SC 1867 21 Ramesh Birch v. Union of India, India, AIR 1990 SC 560 22 State of Bihar v. Bal Mukund Sah, Sah , AIR 2000 SC 1296 23 Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR Tax, AIR 1974 SC 1660 19
limitation on power. Example. Essential Supplies (Temporary Powers) Act, 1946.24 (See Page 108)
(b)
Power to include
The statute may clothe the executive with the power to expand the range of its operation by bringing within its scope: individuals, or bodies, or commodities through methods other than formally amending a Schedule. Example Ex ample Essential Commodities Act, 1955, Employees 25 Provident Fund Act, 1952 , Drugs and Magic Remedies (Objectionable Adv ertisement) Act, 195426
(c)
Power to exempt
A statute may grant power to the executive to exempt from its operation any an y person, institution or commodity as the case maybe, and thus restrict the scope of the Act. Thi s is done with the view to introduce some flexibility. Example: Payment of Bonus Act, 196527. The exemption may however be susceptible to challenge under Article 14.
(d)
Power to modify the statute
At times a statute may confer power on the authority to modify the statute itself. Prima facie it is a drastic power as it empowers the executive to modify the legislatures words. But in some situation it is necessary to confer such power for pragmatic considerations. The judicial approach to such conferment is favourable subject to the rider that it cannot use such power po wer so as to 28 change the basic policy underlying the Act.
(e)
Power to amend schedule
A common legislative practice is to confer power on the administration to amend the Schedule Sc hedule annexed to the Act. Usually Usuall y the Act would say that the Act applies to individuals, bodies or commodities mentioned in the Schedule annexed. The executive by amending the Schedule can either expand or constrain the application of the Act. Example: Minimum Wages Act, 194829,
(f)
Territorial extension of statute
Another technique is to confer the power on the executive to extend the statute already in force in one are to another area with such modifications as the executive ma y think fit. This was discussed in the Delhi Laws case. This has also been held valid subject to a rider that it cannot use such power so as to change the basic policy underlying the Act
24
Harishankar Bagla v. State of M.P., AIR M.P., AIR 1954 SC 465 Mohmedalli v. Union of India, AIR India, AIR 1964 SC 980 26 Humdard Dawakhana v. Union of India, India , AIR 1960 SC 554 27 Jalan Trading Co. v. Mill Mazdoor Union, Union , AIR 1967 SC 691 28 Rajnarain v. Chairman PA Committee, Committee, AIR 1954 SC 567 29 Edward Mills Co. v. State of Ajmer , AIR 1955 SC 25 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, S ection 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 tha t power to restrict or modify does not import the power to make essential changes chan ges and it is confined to alterations of a minor mi nor character and no 30 change in principle is involved.
(h)
Henry VIII clause
At times a statute may contain a ‘removal of difficulty’ clause, or which is nicknamed in England as the Henry VIII clause because the King is regarded popularly popu larly as the impersonation of executive autocracy. What is sought to be denoted thereby is that such a clause vests an unlimited power in the executive to change the legislation. Generally, there are two types of such clauses cl auses which can be identified in Indian statutes:
A narrow one under which power to remove difficulties has to be exercised consistent with the provisions of the Act
Under this clause there are three requirements which need to be fulfilled for an order to be be validly made, which is: o o
o
A difficulty has arisen when giving effect to the provisions of the scheme The order to be made appears to the Government to be necessary for the purpose of removing that difficulty The order is not inconsistent with any of the provisions of the scheme. 31
Examples Section 128 of States Reorganisation Act, 1956, Section 45(10) of Banking Regulation Act, 1949.
Broader one under which the government is authorised to modify the parent Act or any other Act in the name of removal of difficulties.
Usually such power is limited in point of time say two or three years from the commencement o f the Act in question. Such a power is usually frowned upon as inconsistent with the principles of parliamentary democracy as it vests an arsenal of power in the executive. Nevertheless, exigencies of modern administrative process demands that such po wer be conferred on the executive when a new and complicated socio-economic measure is bought into force. Such a clause has been held valid on the ground that existence or arising of difficulty d ifficulty is sine qua non or non or condition precedent for exercise of such su ch power conferred by the statute, and therefore
30 31
N.C.J. Mills Co. v. Asst. Collector Central Excises, Excises, AIR 1971 SC 454 State Bank of Travancore v. Goodfield Plantations, 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 canno t 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
(i)
Power of taxation
In a democratic system, levying tax is regarded exclusively as a function of the legislature as this power is a strong weapon at the disposal of the legislature to control the executive. The Supreme Court has been liberal with delegation of power to tax on the ground that power to tax must be a flexible power as it can be used as an instrument of planning and achieving socio-economic goals.34 Several variants have been used: o o
o
Power may be extended to exempt a commodity from purview of tax35 Power to bring additional transactions, commodities or persons within the purview of tax.36 Power may be conferred to fix the tax rates subject to some parameters.37
Charge under a taxing statute can only be under an Act not under the rules. The rule normally provides for procedure to be followed for the realisation of statutory dues.38 Delegation of taxing power to a non-elected body was held valid. (BDA)39
(j)
Delegation to municipal bodies
A liberal judicial approach is discernible in the case -law in the matter of delegation of legislative power to municipal bodies. One reason for this judicial attitude is that these bodies are representative institutions, which are responsible to the people, and this ele ment serves as an inherent restraint on these bodies in the matter of making delegated legislation. Broad delegations have been upheld uph eld with a view to strengthen the institution of local self-gov ernment which is regarded as the primary unit of democracy.
32
M.U. Sinai v. Union of India, India, AIR 1975 SC 797 Krishnadeo Misra v. State, State, AIR 1988 Pat 9 34 S.B. Dayal v. State of U.P., AIR U.P., AIR 1972 SC 1660 35 Orient Weaving Mills v. Union of India, India , AIR 1963 SC 98 36 Babu Ram v. State of Punjab, Punjab , AIR 1979 SC 1475 37 Devi Das v State of Punjab, Punjab , AIR 1967 SC 1895 38 State of Kerala v. Madras Rubber Factory Ltd., AIR Ltd., AIR 1998 SC 723 39 B. Krishna Bhat v. State of Karnataka, Karnataka , AIR 2001 SC 1333 33
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 and prima facie, on 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 sanction of the Government is 41 necessary for imposing such a tax.
Conditional Legislation As pointed out earlier the only form of delegation d elegation 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 o peration 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 con dition 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 da ys when the Privy Council had to draw a kind of compromise between the exigencies ex igencies of administration demanding delegation, and the limited character of the colonial legislature bound as they were by b y 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 ‘con ditional legislation’ was evolved to denote that what was being delegated was some minor legislative power. Conditional legislation can be broadly categorised into three categories:
40
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 ena cted to be uniformly applicable in future to all those covered under the sweep of the Act, the legislature is said to have complete d 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. 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
Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1968 SC 1232 Western India Theatres Ltd. v. Municipal Corporation, AIR 1965 SC 586 42 R.K. Trivedi v. Union of India, India , (1988) SCC 58 41
under the statute are to be denied d enied or extended to particular areas. This exercise is not left to his subjective satisfaction not is it a mere ministerial exercise.
Distinction between Delegated Legislation The capacity of the legislature to delegate having been recognised now, the doctrine of conditional legislation appears to have become redundant because the greater (delegation) would include the lesser (conditional legislation). The Supreme Court has o bserved that no useful purpose is served by calling a power conferred by a statute as conditional legislation instead of delegated legislation. There is no difference between between the two in principle, for ‘conditional legislation’ like delegated legislation has a content (howsoever small and restricted) of law making power itself. And in neither case can the person be entrusted with power p ower to act beyond the limits which circumscribe the power.43 But courts have not ceased making references to doctrine of conditional legislation. In Tulsipur 44 , the , the Supreme Court has stated that conditional c onditional legislation cannot be characterised as subordinate legislation. In Hamdard In Hamdard Dawakhana, Dawakhana, the Supreme Court observed that the distinction between conditional legislation and delegated legislation is this that in the former the delegate’s power is that of determining when a legislative declared rule of co nduct shall become effective, and the latter involves delegation of rule-making power which c onstitutionally may be exercised by administrative agency. Conditional legislation is usually not open for attack on ground of excessive delegation.45
Doctrine of excessive delegation The doctrine of excessive delegation is not a mere empty formalism; the doctrine seeks to:
preserve the traditional role of the elected representatives of the the people to make policies rather than hand over the function to politically unresponsive civil servants.it promotes democracy and curbs bureaucracy. It ensures that the legislature provides the recipient of that power with an intelligible principle to guide the exercise of delegated legislation. It enables judiciary to have some check on delegation of power by the legislature.
The rule against excessive delegation of the legislative authority flows from and is a necessary postulate of the sovereignty of the people.46 Constitutional legitimisation of unlimited power of delegation to the executive by b y the legislature may on critical occasions, be subversive of responsible government and erosive of democratic order.47
43
Lachmi Narain v. Union of India, India , AIR 1976 SC 714 Tulsipur Sugar Co. v. Notified Area Committee, Committee , AIR 1980 SC 882 45 State of Tamil Nadu v. K. Sabanayagam, Sabanayagam , (1998) 1 SCC 318 46 Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR Tax, AIR 1974 SC 1660 47 Avinder Singh v. State of Punjab, Punjab , AIR 1979 SC 312 44
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
Judicial Control over Delegated Legislation
48
Makhan Singh v. State of Punjab, Punjab , AIR 1964 SC 381