October 31, 2020

Delegated Legislation in India

The truth is that, if parliament were not willing to delegate law making power, parliament would be unable to pass the kind of quality and legislation which modern public requires”

-The Committee on Ministers Powers

Among many functions of the legislature, policy and law making would happen to be its most important one. However, many democratic countries accept that the legislative output barely emanates from such authority, since most of its duties have been delegated and regulated to the Executive[1]. In the words of Salmond, Delegated legislation would be that which proceeds from any authority other than a sovereign power, hence dependent for its continuity and validity on a superior authority.[2] Delegated Legislation is that rule which allows the principle body to dispense certain responsibilities to a lower body to carry out. It is a form of decentralization as it confers duties to lower bodies of the government to carry smoothly.

Delegated legislation is woven deep into administrative procedures and system in such a way that any statue, policy, law or rule created by the legislature is always delegated to certain relevant authorities/bodies. However, it is pertinent to point out that this delegation can only be conferred when the legislative policy that has been properly laid down allows for the same. Also, that the delegate must work within the four corners of the delegation, and if violated can only be held valid if ratified by the delegator[3]. Moreover, a delegatee cannot further delegate the duty that has been given to them by the delegator. This is based on the principle of Delegatus Potest non Delegare.

Indian administrative system also refers to this as “subordinate legislation” since it tries to express that, the authority making legislation is subordinate to the legislature[4]. Article 312 of the Indian Constitution bestows the legislature the power to delegate its duties to other authorities and this also includes formulating policies and laws. This has been clarified in the case of D.S Grewal Vs State of Punjab [5] wherein the Supreme Court was of the view that the Article does not exclude the delegation of power to formulate rules and regulations for the recruitment and other conditions of service of the all-India services[6].

Part III and IV of the Constitution ensures security of citizens, which can be assured through legislative policies. However, this creates a huge burden on the legislature since they also have other governing duties to fulfill. It puts them under pressure since they nor Union have the time nor expertise to formulate specific policies for every welfare matter[7]. This is why delegated legislation plays such an important role in administrative procedures. The Executive here brings in their expertise and inputs to the policies. It also lessens the burden on the legislative since the duty is now distributed with another authority. State functions are wide in nature since they have to ensure the well-being of every citizen. It plays a major role in the socio-economic development of the country. It is therefore pertinent to formulate policies carefully keeping in mind the impact of these policies on their livelihood. Delegated Legislation paves way for such law making, and there must be enforced responsibly.

In the case of Agriculture Marketing Committee Vs Shalimar Chemical Works Ltd[8], the Supreme Court laid down necessary reasons for the legislature to delegate its duties to the government. They made three important arguments-

1. The future is uncertain. Every intricacy and circumstance cannot be easy to set out, hence areas of delegation are very technically complex.

2. The Executive can help fill the gaps in policies by experimenting and understanding the purpose of the legislation before bringing any change

3. Gives an edge to the Executive since it paves way for them to also give valuable inputs to the rules and regulations in addition to the legislature.

Keeping this in mind, the Supreme Court in the case of St. John’s Teachers Training Institute Vs Regional Director, NCTE[9], highlighted the need for delegated legislation. The court reiterated its importance and indispensability by stating its ability to reduce the burden of the legislature, improving the well-being of citizens, its ability to shape the sphere of constitutional law and developing the legal and administrative system of the country.

Subordinate Legislation has been understood under two periods- pre-constitutional and post- constitutional. Pre-Constitutional era can be well understood with the help of two important case laws– R Vs Burah[10] and Jitender Nath Gupta Vs State of Bihar[11]. In the case of Burah, Sections 8 and 9 of a certain Act was challenged on grounds of excessive delegation. The area of Garo hills were removed from civil and criminal jurisdiction and the said sections allowed the Lieutenant Governor to extend said provision to other areas within Garo hills. The High Court of Calcutta held section 9 to be ultra vires under the principle of Delegatus non potest Delegare. They stated that the Indian Legislature was a delegate of the Imperial Parliament and hence couldn’t further delegate its duties. However, the Privy Council overturned this judgement and held that the Indian Legislature had plenary power of legislation and further stated that the authority exercised its power in its capacity and not as that of a delegate of the British Parliament. They didn’t validate delegated legislation, but rather promoted conditional legislation. In the case of Jitendra Nath, the court fell back to the interpretation of Burah stating that there cannot be any other delegated legislation other than conditional legislation. This case created confusion, in terms of understanding the scope of legislative duties and delegated legislation. However, this was clarified in the post constitutional period through the In Re Delhi Laws Act[12] case. The lays down three important tests that must be fulfilled for a legislative authority to delegate duties-

1. Subject matter of delegation must be within the scope of the legislative authority

2. The power of delegation mustn’t negate other instruments created by the legislature (power isn’t ultra vires)

3. Doesn’t create another legislative body having the same duties and functions to discharge (no abdication of legislative powers)

Along with this, three spectrums to delegated legislation has been expressed in the opinion of three presiding judges- Kania J, Fazl Ali J and Mukherjee K. Judge Kania was of the view that delegated legislation must be strictly construed. That the threshold for delegating duties is very high, hence it is the duty of the legislature to fulfill all responsibilities bestowed upon them. Judge Fazl Ali on the other hand interpreted delegated legislation in a wider sense. He opined that every duty of the legislature could be delegated to a lower body so that the responsibility can be distributed and well regulated within government authorities, i.e. must be within the framework of the legislation. Judge Mukherjee’s opinion creates the ideal interpretation of delegated legislation. He reaches a middle ground with regard to Kania and Fazl’s interpretation. He states that the legislature must delegate its duties to the respective authority, however is must not be done loosely. Delegation of legislative authority must be done as an ancillary or in aid to the exercise of law-making powers by the proper legislature. Many construe this to be the most ideal form of delegated legislation. This case helped understand the position of delegation in Indian administrative system.

The Legislature have wide power of delegation, however this does not mean delegation of uncontrolled power. It is important to have safeguards and controls over all forms of delegation. These safeguards create balance within the administrative system and ensure that this responsibility has not been taken advantage of. These measures must be strictly construed and well regulated for smooth running of the government. If well regulated, it creates scope for better enactment of Statutes and laws.

[1] MP Jain & SN Jain, Principles of Administrative Law, Seventh Edition, 2017, Page 47

[2] See Salmond, Jurisprudence, 12th Edition, Page 116

[3] MP Jain & SN Jain, Principles of Administrative Law, Seventh Edition, 2017, Page 48

[4] Ibid.

[5] AIR 1959 SC 512, 516: 1959 Supp (1) SCR 792

[6] Ibid.

[7] MP Jain & SN Jain, Principles of Administrative Law, Seventh Edition, 2017, Page 51

[8] AIR 1997 SC 2502, at 2507; (1997) 5 SCC 516

[9] (2003) 3 SCC 321, Para 10, Page 331 : AIR 2003 SC 1533

[10] (1877-78) LR 3 App Cas 889

[11] AIR 1949 FC 175

[12] 1951 AIR 332, 1951 SCR 747

Author Details: Janavi Venkatesh (OP Jindal Global University)

The views of the author are personal only. (if any)

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