INTRODUCTION
Salmond defines delegated legislation as “that which emanates from any authority other than the sovereign power and is consequently dependent on some superior or supreme authority for its continuous existence and validity.” Delegated Legislation refers to the significant number of legislations enacted by government and the Governor-General under the Acts of Parliament that delegate this responsibility to agencies. Legislation is said to be “delegated” when it is not passed by an Act of Parliament but rather by a minister of the government or another individual who has been delegated legislative authority. By means of delegated legislation, the legislative branch delegates the power to enact secondary legislation to carry out and administer the requirements of primary legislation to the executive branch. Parliament has delegated jurisdiction to a municipal council, government agency, or other institution to pass additional laws under a given Act, which is why rules and bylaws are instances of delegated legislation. In India, the legislature is vested with broad delegation powers, although these powers are subject to specific restrictions to prevent undue delegation. Administrative intricacies are often best addressed by delegated legislation, which is necessary and often justifiable because of its speed and efficiency, its adaptability in topics prone to regular or rapid change, and its adaptability in other areas, such as those pertaining to technical detail. Legislation that has been delegated is subject to the scrutiny of both Parliament and the courts. Since it takes into consideration the statutory committees that draught laws through bills, Parliament has sway over delegated legislation
RESEARCH OBJECTIVE
- To analyse the concept of excessive delegation in India.
- To analyse role of judiciary in defining excessive delegation.
EXCESSIVE DELEGATION
The delegated legislation is a principle where legislation made by government agencies and superior authority under authority of Acts of Parliaments, delegates power to agencies. The legislature has the power to delegate work to the executives and to delegate the power there are limits defined. Power delegated within these limits is called permissible delegation. However, when this delegated legislation goes beyond the limits of permissible delegation it gives rise to a new doctrine called Excessive delegation.
The doctrine of excessive delegation says that when the legislature delegates its legislative function or power to any authority in way that excessive in nature, such delegation will be held unconstitutional. The doctrine of excessive delegation said that a delegation was unconstitutional if the legislature chose to give too much of its legislative power to another authority. The legislature must set the policy of the law, set the legal principles, and set criteria for the delegate to follow when passing delegated legislation. If they do not comply with it, the law can be contended to be against the democratic principles and constitutionality of law because of excessive delegation. The theory has two goals: it encourages democratic accountability and sets up a clear way for the courts to keep an eye on the system.
The Supreme Court of India in the case of St. Johns Teachers Training Institute v. National Council for Teacher Education, led down the grounds that would assist the court to decide whether the matter fall under the ambit of permissible delegation or amounts to excessiveness. The grounds were:
- The exposition of the law at hand;
- Grounds of application of the statute along with its Preamble;
- Scheme of the law;
- The facts and circumstances serving as a background for the law to be enacted.
The Parliament does not have the power to make laws because it is a fundamental part of its job. It has that power because the Constitution provides it that power. So, Parliament doesn’t have a right that it can give or delegate power at their own will, but it does have a power provided in the Constitution to delegate. So, Parliament doesn’t have a right that it can give or delegate power at their own will, but it does have a power to provide in Constitution to delegate. According to the principle it is against the law for parliament to give the executive its legislative duties. This would be against the Constitution. It is a well-known fact that the legislature must do its own most important and essential functions. These functions cannot be given to the executive. In response to a challenge to the constitutionality of a piece of law that is based on the most important responsibilities of the legislative branch are to formulate rules of conduct based on existing policies as well as to formulate new policies. To put it another way, a legislature is responsible for performing the fundamental functions and duties for which it was entrusted. Once the legislature has used all of its most important powers, it can give the executive all of its other, less important tasks called incidental and ancillary functions. In Great Britain, giving too much power or excessive power to parliament is a political issue, but in the US (and India), it is mostly a judicial issue. Whether or not there is an excessive delegation, it needs to be looked at in light of three big ideas:
- Legislators can’t give away their essential functions, like making laws and setting policy.
- With the way things are today and how complicated things are, it is not possible for the government to think of every possible situation in detail and make plans for it. So, the legislature has to give some jobs to other people as long as it sets laws.
- If the power is given to the executive in a legal and acceptable way, the delegation can’t be called excessive delegation just because the legislature could have made more detailed rules.
The issue of the scope of delegated authority under every legislation is firmly decided by our judicial system. In Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills[1], it was determined that the legislature could not transfer its “essential functions” under any circumstances. Before delegating authority, all it needs do is establish a legislative strategy and its guiding principles and provide counsel to administrative officials. So, the formulation of legislative policy is a legislative duty that cannot be assigned to an administrative entity.
In order to effectively address a challenge to the vires of a piece of legislation based on excessive delegation, it is essential to ascertain whether or not the challenged delegation constituted the surrender of an essential legislative function and whether or not the legislature delegated the formulation of policy and principle. If the response is positive, then there has been an excessive amount of delegation, and if the response is negative, then the challenge must be considered unsuccessful. A piece of law that is being challenged on the grounds of excessive delegation needs to be successful in both of the following tests:
- Does it delegate key legislative functions called essential function?
- Whether the legislature has articulated its policies and guiding principles for the executive branch.
In the case of J.K. Industries v. Union of India[2] , the court had opined that: “A delegated legislation should be within the limits of the Act and should supplement and not supplant it. In other words, the nature of the delegated legislation is to fill up the details and perform ancillary and subordinate legislative functions. And whenever, the Court assesses the vires of a delegated legislation it has to examine the nature, object and the scheme of the legislation as a whole and consider the area over which powers are delegated.”
It was held that the inability of such a law to pass those criteria and conform to the scope of the delegated act leads to excessive delegation. Many judgments and decisions have addressed the idea of excessive delegation, and the courts have ruled that in such a scenario, the stated statute would be invalidated and deemed ultra vires.
The Indian legislature cannot grant to an administrative body unrestricted, uncanonized, and unqualified legislative authority. The legislature may assign legislative authority on the condition that it establishes the principles, rules, and policies by which the delegate must execute the delegated legislative authority. Legitimate delegation is restricted to legislative policy and guidelines. It is also well-established that delegates must exert their authority within the boundaries of their delegation. In the Payment of Bonus Act of 1965, the Supreme Court ruled that whether a legislatively granted power has surpassed legal boundaries in a given case depended on the specific facts and circumstances. It depends on the nature of the assigned authority and the desired outcome. In evaluating whether there is “excessive delegation,” the courts evaluated whether a wholly unrestricted blanket power with no procedural protections against the unlawful exercise of power by the delegate may be deemed excessive delegation and declared illegal. In this regard, H.R. Banthia v. Union of India is illustrative. Section 5(2)(b) of the Gold (Control) Act, 1968 vested the Gold Administrator with the authority to carry out the Act’s aims of controlling the manufacturing, distribution, use, disposal, consumption, etc. of gold. The Supreme Court ruled the clause unconstitutional because it was overly broad and suffered from “excessive delegation.” The concept can be utilised by the Courts to counteract severe cases of delegation. The majority opinion in the Gwalior Rayon case has been upheld by the Supreme Court in a vast number of subsequent decisions. As a result of these proclamations, “the notion of excessive delegation should be regarded as well-established in India,” which indicates that the Legislature cannot delegate uncanalized and uncontrolled power. In Registrar, Co-operative Societies v. K. Kunjabmu, the Supreme Court articulated the theory of excessive delegation in the following manner: ” “The authority to legislate includes the authority to delegate. Yet, excessive delegating might become abdication. Unlimited delegation may encourage dictatorship limitless. It must legislate by establishing policy and principle, and it may delegate to fill in the details and implement policy. If there is direction wherever it may be located, the delegation is genuine.” ” In Mahe Beach Trade Co. v. Union Territory of Pondicherry, the Supreme Court ruled that the Legislature may not abdicate its legislative authority, delegate it excessively, or transfer its legislative powers to another body. The Court has declared in the instance of Kunjabmu that direction may be found anywhere in the act, e.g., in the specific provision empowering delegation, or other sections of the statute, the Preamble, the scheme or even the very subject matters of the statute. Consequently, it is evident that the Courts adopt a liberal posture when interpreting the wording of legislative policy and guidelines in order to protect parliamentary delegation.
Using the criteria established in the Kunjabmu case, the Supreme Court in St. John’s Teachers Training Institute ruled that the issue was “whether a particular legislation suffers from the vice of excessive delegation, whether has to be examined in the context of subject matter, the scheme, the provisions statute including its Preamble and the facts and circumstances in the background of which statute is enacted.” Also, it was determined that there is a presumption in favour of the constitutionality of subordinate legislation, and if it is susceptible to two interpretations, the one that would render it lawful must be accepted, and the legislation can be read down to prevent it from being deemed supra vires.
EXCESSIVE DELEGATION – PERSPECTIVE OF INDIAN COURTS
The doctrine of excessive delegation is important for ensuring due process because it emphasizes the importance of delegation while also highlighting the negative effects of unjustified and excessive delegation of powers exercised by administrative authorities. After understanding Excessive Delegation, it is pretty clear that legislature can delegate legislative power only when the legislature lays down the skeletal structure and limits to which the delegate can exercise the delegated power.
In the United States, the subject of what authorities may be delegated to whom and how much arose in the 19th century. In the case of Wayman v. Southard[3], the US courts differentiated between “important subjects” and “mere details.” They said that “a general provision may be made, and the power given to those who are to act under such general provision, to fill up the details.”[4]
In India, in the case of Queen vs Burah[5], the Privy Council held that the Indian legislature was not an agent nor a delegate, but rather was designed to have full legislative authority.
But soon after Independence, the question which troubled the Indian Courts was whether power can be delegated to other bodies to make substantive law without any structure? The Privy Council was silent on this issue, and hence, the case of In Re Delhi Laws Act [6]is an important pronouncement in the history of excessive delegation in India.
In this case, the court abandoned the English model where extensive power can be delegated and adopted the American model where there are limits to Delegated Legislation. This case elucidated that legislature derives its power from the constitution and hence, it is a delegate itself; a delegate cannot sub-delegate it’s power. The Court, in this case said that there is a limit to delegated Legislation. The legislation is not permitted to delegate its essential functions. Only ancillary functions can be delegated to the executive.
Indian courts, in the past few decades, have established the grounds of excessive delegation through various judicial pronouncement.
In the Re Delhi Laws Act Case[7], since the Enabling Act went beyond the constitutional bounds beyond which the Executive cannot be empowered to operate, the court ruled that the authority delegation was void. An existing law was repealed because the executive was given the authority to do so, a power that was later deemed to be an instance of excessive delegated legislation.
In Hamdard Dawakhana v. Union of India[8], the Supreme Court, while considering the validity of clause (d) of Section 3 of the Drug and Magic Remedies (Objectionable Advertisement) Act, (21 of 1954) observed that Parliament has not established any criteria, standards, or principles for specifying a disease or condition in the Schedule. It was unclear what factors should be considered to include a condition or disease. This in turn, gave uncanalised and unguided power to the Executive. Therefore, it was held that Section 3(d) powers to designate diseases and conditions exceeds valid delegation and hence must be struck down.
Another case was of Harakchand Ratanchand Banthia and Ors v. Union of India[9], which involved a clause(b) sub-section (2) of Section 5 of the Gold (Control) Act, 1968, which gave the Administrator the authority to control the production, shipment, acquisition, possession, disposal, use, and consumption of gold through licenses and other means. This power was eld to be legislative and far too wide and hence, the Supreme Court said that the concerned section is a case of Excessive delegation and must be struck down.
Another notable case is Air India v. Nargesh Meerza and ors.[10], the Managing Director of Air India had the authority to unilaterally extend the retirement of an employee. The court ruled that the provision gives unreasonable discretionary power to authority is unreasonable and violates Article 19(1)(g) of the Constitution.
FINDINGS AND SUGGESTIONS
Every law passed in India must be in line with the requirements of the Constitution, particularly with Chapter III of the Constitution – pertaining to Fundamental Rights.[11] When a law that was made by the Executive is determined to be in conflict with the Constitution or to go beyond the scope of the parent Act, which is the statute from which the power to make laws was derived, the Court will declare the law to be void and unenforceable. In India, the Apex Court and the High Courts have been given the authority to determine whether or not delegated law adheres to constitutional standards.
According to Indian law, delegated legislation is subject to judicial review by both the Supreme Court and the High Courts. This means that delegated legislation cannot circumvent this review. In India, delegated legislation is effectively controlled by the Judiciary, which exerts effective control.
In the recent case of Vivek Narayana Sharma v. Union of India[12], while the Supreme Court held that the demonetization clause is not a case of excessive delegation, it gave a few pointers about the doctrine of excessive delegation in India:
“The question whether excessive delegation has been conferred or not has to be decided on the basis of the scheme, the object and the purpose of the statute under consideration.
The delegation is to the Central Government, i.e. the highest executive body of the country. We have a Parliamentary system in which the Government is responsible to the Parliament. In case the Executive does not act reasonably while exercising its power of delegated legislation, it is responsible to Parliament who are elected representatives of the citizens for whom there exists a democratic method of bringing to book the elected representatives who act unreasonably in such matters.”[13]
CONCLUSION
With reference to the above-mentioned judicial pronouncements and current standing of the doctrine in India, it is evident that excessive delegation has evolved through Indian courts and hence, is very much an established doctrine. Hence, we can conclude that excessive delegation is not a myth of judicial creation.
The existence of delegated legislation is not the problem, it is a significant component of the modern Indian administration. The delegates are doing a considerably adequate job in today’s date. The question which plagues us today is to find ways to ensure that the power delegated to the administrative bodies is exercised within permissible limits and not beyond those.
The legislature must not ignore the supervision of such delegated legislation, it shall be quite parallel to siring a child and rejecting to take any responsibility for that child. The outcome can only be a deeper divide between the governors and the governed[14], as well as a growing belief that the government is unresponsive. Losing such independence is sure to increase popular resentment. Hence, the mantra for delegated legislation must be to give power, absolutely, but not absolute power.
[1] Municipal Corporation of Delhi v Birla Cotton Spinning & Weaving Mills AIR 1968 SC 12
[2] JK Industries v Union of India (2007) 13 SCC 673
[3] Wayman v. Southard, 3 U.S. 1 (1825)
[4] Delegation of Legislative Power, available at: https://law.justia.com/constitution/us/article-1/04-delegation-legislative-power.html (Last Visited on 15th Feb 2023)
[5] Queen v. Burah, (1878) LR 3AC 889
[6] Re Delhi Laws Act Case, AIR 1951 SC 332
[7] Supra note 17
[8] Hamdard Dawakhana v. Union of India, AIR 1960 SC 554
[9] Harakchand Ratanchand banthia and Ors v. Union of India, 1970 AIR 1453
[10] Air India v. Nargesh Meerza and Ors.,AIR 1981 SC 1829
[11] Constitution of India, art. 13
[12] 2023 SCC OnLine SC 1
[13] Vivek Narayan Sharma v. Union of India, 2023 SCC OnLine SC 1
[14] John V. Tuney, The Federal Legislative Process: Misinformation, Reaction and Excessive Delegation, 7 Envtl L 499 (1977)
