Delegated Legislation
Delegated Legislation
Delegated Legislation
Delegation of powers
Meaning
Delegation of powers means those powers, which are given by the higher
authorities to the lower authorities to make certain laws, i.e., powers given
by the legislature to administration to enact laws to perform administration
functions.The law legislate by the administration with the powers given by
the legislature is called delegated legislation. Or we can say that when an
instrument of a legislative nature is made by an authority in exercise of
power delegated or conferred by the legislature is called subordinate
legislation or delegated legislation. Delegated legislation, also referred to as
secondary legislation, is legislation made by a person or body other than
Parliament. Parliament, through an Act of Parliament, can permit another
person or body to make legislation. An Act of Parliament creates the
framework of a particular law and tends only to contain an outline of the
purpose of the Act. By Parliament giving authority for legislation to be
delegated it enables other persons or bodies to provide more detail to an Act
of Parliament. Parliament thereby, through primary legislation (i.e. an Act of
Parliament), permit others to make law and rules through delegated
legislation. The legislation created by delegated legislation must be made in
accordance with the purposes laid down in the Act. The function of
delegated legislation is it allows the Government to amend a law without
having to wait for a new Act of Parliament to be passed. Further, delegated
legislation can be used to make technical changes to the law, such as altering
sanctions under a given statute. Also, by way of an example, a Local
Authority have power given to them under certain statutes to allow them to
make delegated legislation and to make law which suits their area. Delegated
legislation provides a very important role in the making of law as there is
more delegated legislation enacted each year than there are Acts of
Parliament. In addition, delegated legislation has the same legal standing as
the Act of Parliament from which it was created. Doctrinal of permissible
limits Doctrine of permissible limit basically talks about the powers of a
legislature which can be delegated to the Administrative authorities a
legislation cannot delegate all its powers. The legislature has some limited
powers which can be delegated.
Commencement
Several statues contain an 'appointed day' clause, which empowers the
government to appoint a day for the act to come into force. In such cases, the
operation of the act depends on the decision of the government e.g. section 3
of the Bombay Rents, hotel and Lodging house rates control act, 1947
provides that the act shall come into operation on such date as the state
Government may by notification in the official gazette appoint in this behalf.
Here the act comes into force when the notification is published in the
official gazette. Such a provision is valid for, as Sir Cecil Carr remarks, "the
legislature provides the gun and prescribes the target, but leaves to the
executive the take of pressing the trigger".
Supplying details:
If the legislative policy is formulated by the legislature, the function of
supplying details may be delegated to the executive for giving effect to the
policy. What is delegated here is an ancillary function in aid of the exercise
of the legislative function e.g. section 3 of All India Service Act, 1951
authorizes the central government to make rules to regulate conditions of
service n All India Services
Modifications:
Sometimes, provisions are made in the statute authorizing the executive to
modify the existing statute before application. This is really a drastic power
as it amounts to an amendment of the act, which is a legislative act, but
sometimes, this flexibility is necessary to deal with the local conditions.
Thus, under the power conferred by the delhi laws act, 1912, the central
government extended the application of the Bombay agricultural debtors
relief act.1947 to Delhi. The Bombay Act was limited in application to the
agriculturists whose annual income was less than Rs. 500 but that limitation
was removed by the government.
Prescribing punishments:
In some cases the legislature delegates to the executive the power to take
punitive action e.g., under section 37 of the electricity act,1910, the
electricity board is empowered to prescribe punishment for breach of the
provision of the act subject to the maximum punishment laid down in the
act. By section 59(7) of the Damodar Valley Act, 1948, the power to
prescribe punishment is delegated to a statutory authority without any
maximum limit fixed by the parent act.
1) The legislation must determine the maximum punishment which the rule
making authority may prescribe for breach of regulations; and
2) If such power is delegated to any authority other than the state or central
government, the exercise of the power must be subject to the previous
sanction or subsequent approval of the state or central government. Framing
of rules : A delegation of power to frame rules, bye laws, regulations, etc. is
not unconstitutional, provided that the rules, bye laws and regulations are
required to be laid before the legislature before they come into force and
provide further that the legislature has power to amend, modify or repeal
them. Removal of difficulties (Henery VIII clause) : Power is sometime
conferred on the government to modify the provisions of the existing
statutes for the purpose of removing difficulties. When the legislature passes
an act, it cannot foresee all he difficulties which may arise in implementing
it.
In Jalan Trading company v. Mill Majdur Sabha the supreme court was
called upon to decide the legality of such a clause. Section 37 (1) of the
payment of Bonus Act 1965 empowered the central government to make
such orders, not inconsistent with the purpose of the act, is might be
necessary or expedient for the removal of any doubts or difficulties. Section
37 (2) made the order passed by the central government under sub section
(1) final. The court by a majority of 3:2 held section 37 ultra vires on the
ground of excessive delegation in as much as the government was made the
sole judge of whether any difficulty or doubt had arisen, whether it was
necessary to remove such doubt or difficulties and whether the order made
was consistent with the provisions of the act. Again, the order passed by the
central government was 'final'. Thus, in substance, legislative power was
delegated to executive authority, which was not permissible.
The minority, however, took a liberal view and held that the functions to be
exercised by the central government was not legislative functions at all but
were intended to advance the purpose which the legislature had in mind. In
the words of Hidautllah, J. (as he then was): "parliament has not attempted
to set up legislation. I have stated all that it wished n the subject of bonus in
the act. Apprehending, however, that in the application of the new act doubts
and difficulty might arrive and not leaving there solutions to the court with
the attendant delays and expense, parliament have chosen to give power to
the central government to remove doubt and difference by a suitable order."
It is submitted that the minority view is correct and after Jalan trading
company, the Supreme Court adopted the liberal approach. In Gammon
India Ltd. V. union of India a similar provision was held constitutional by
the court. Distinguishing Jalan Trading Company, the court observed: "in the
present case, neither finality nor alteration is contemplated in any order
under section 34 of the act. Section 34 is for giving effect to the provisions
of the act. This provision is an application of the internal functioning of the
administrative machinery." It, therefore, becomes clear that after Jalan
Trading Company, the court changed its view and virtually overruled the
majority judgment. In Patna University v. Amita Tiwari, the relevant statute
enabled the chancellor to issue the directions to universities "in the
administrative and academic interest."
technicality of subject-matter
The legislature has to pass so many laws in modern times ,where their
contents are technical in nature .The legislators not being experts or
technician ,cannot work out details of such laws.The legislators at the best ,
could lay down the policy or the principles leaving the details to be filled up
by the executive which is competent to do so by making the rules of
technical nature.
Subject to the provisions of this Constitution, Parliament may make laws for
the whole or any part of the territory of India, and the Legislature of a State
may make laws for the whole or any part of the State.
The legislature while delegating such power is required to lay down the
criteria or standard so as to enable the delegatee to act within the framework
of the statute. The principle on which the power of the legislature is to be
exercised is required to be disclosed. It is also trite that essential legislative
functions cannot be delegated. The procedural powers are, therefore,
normally left to be exercised by the executive by reason of a delegated
legislation.
In Re: Delhi Laws Act (supra) this Court in no unmistakable terms stated
that the legislature may utilize any outside agency to the extent it finds
necessary for doing things which it is unable to do itself or finds
inconvenient to do which would mean such things which are ancillary to the
main enactment and necessary for the full and effective exercise of its power
of legislation. Justice Mukherjea, in his opinion, stated:
The legal position has been explained by a Constitution Bench of this Court
in Kishan Prakash Sharma and Others vs. Union of India and Others [(2001)
5 SCC 212] holding :
empowered to carry out the policy within the guidelines laid down by the
legislature. The legislature may, after laying down the legislative policy,
confer discretion on an administrative agency as to the execution of the
policy and leave it to the agency to work out the details within the
framework of the policy. When the Constitution entrusts the duty of law-
making to Parliament and the legislatures of States, it impliedly prohibits
them to throw away that responsibility on the shoulders of some other
authority." [See also Ajoy Kumar Banerjee and Others etc. vs. Union of
India & Others [(1984) 3 SCC 127], Agricultural Market Committee vs.
Shalimar Chemical Works Ltd. [1997) 5 SCC 516], Krishna Mohan (supra).
[Quoted from: State Of Rajasthan & Ors V. Basant Nahata [2005] RD-SC
474 (7 September 2005) ]
One cannot interpret the proviso in such a way as to defeat its purpose.
There cannot be any doubt whatsoever that the court shall not invalidate a
legislation on the ground of delegation of essential legislative function or on
the ground of conferring unguided, uncontrolled and vague powers upon the
delegate without taking into account the preamble of the Act as also other
provisions of the statute in the event they provide good means of finding out
the meaning of the offending statute. This aspect of the matter has been
considered in some details in People Union for Civil Liberties and Another
vs. Union of India and Others [(2004) 2 SCC 476] and Andhra Bank vs. B.
Satyanarayana and Others, [(2004) 2 SCC 657] in which one of us was a
member.
But preamble and statement of object and reason can only be looked into
when there is vagueness or ambiguity present in the language of the Act as
in Arnit Das vs. State of Bihar [(2000) 5 SCC 488] wherein this Court has
held :
"22. All this exercise would have been avoided if only the legislature would
have taken care not to leave an ambiguity in the definition of "juvenile" and
would have clearly specified the point of time by reference to which the age
was to be determined to find a person to be a juvenile. The ambiguity can be
resolved by taking into consideration the Preamble and the Statement of
Objects and Reasons. The Preamble suggests what the Act was intended to
deal with. If the language used by Parliament is ambiguous the court is
permitted to look into the Preamble for construing the provisions of an Act
(Burrakur Coal Co. Ltd. v. Union of India). A Preamble of a statute has been
said to be a good means of finding out its meaning and, as it were, the key of
understanding of it, said this Court in A. Thangal Kunju Musaliar v. M.
Venkatachalam Potti. The Preamble is a key to unlock the legislative intent.
If the words employed in an enactment may spell a doubt as to their meaning
it would be useful to so interpret the enactment as to harmonise it with the
object which the legislature had in its view." So it is only when the language
is itself capable of more than one meaning, then the preamble or the
statement of objects and reasons can be looked into and not when something
is not capable of given a precise meaning as in case of 'Public policy'. Even
if the Statement of Objects and Reasons is looked into to ascertain its
meaning then also there is nothing therein which can be said to be related to
morality or public policy. We have, furthermore, not been shown as to how
the preamble or any other provisions of the Act would provide for any
guideline in construing Section 22-A of the Act. The principal contention
raised on behalf of the counsel for the Appellants, as noticed hereinbefore, is
that the terminology 'opposed to public policy' itself provide for such
guidelines.
It was only in the fitness of things that the State Legislature should have left
the wide preventive powers under the sections to the discretion of
the State Government, charged with the maintenance of law and order, or
to its delegate, to be exercised on their subjective satisfaction. [Dr. N. B.
Khare v. The State of Delhi, (1950) S.C.R.519,referred to]. But such
discretion was by no means unfettered and uncontrolled. Where there was
any abuse of such powers, therefore, what could be struck down was the
abuse itself but not the statute.[ Dwaraka Prasad Laxmi Nayain v. The State
of Uttar Pradesh,(1954) S.C.R. 803, held inapplicable. Harishankar Bagla
v. The State of Madhya Pradesh, (1955) 1S.C.R. 380, relied on.as quoted
in., VIRENDRAVs.THE STATE OF PUNJAB AND ANOTHER, 1957 AIR
896,1958 SCR 308]
Another issue which occurs making controls over delegated legislation vital
is sub legislation, which is where law making is handed down another level
to people other than those who were given the original power to do so, to
implement important policies. Creating criticism that our law is made by
civil servants (who may know hardly anything about the law) and just rubber
stamped by the Minister of that apartment, this requires law passed by these
civil servants to be checked by the scrutiny committee of parliament or the
courts.
Finally delegated legislation can share the same issues as Acts of Parliament
such as obscure wording that can lead to difficulty in understanding the law,
which again makes controls necessary as parliament or the courts can stop
unclear legislation, which will affect the lives of hundreds of people from
passing.
In respect of another provision of the very Act, namely the Employees' State
Insurance Act, 1948, i.e. in respect of Section 1(3) thereof, the Supreme
Court considered the necessity of the Legislature resorting to delegation in
view of the necessity of existence of several circumstances in order to bring
into force the Act to a particular area. The Supreme Court observed that in
the very nature of things, it would have been impossible for the Legislature
to decide in what areas and in respect of which factories the Employees State
Insurance Corporation should be established and that it was obvious that a
Scheme of this kind, though beneficent, could not be introduced in the whole
of the country all at once and that such beneficial measures which need
careful experimentation have some times to be adopted by stages and in
different phases, and, so, inevitably the question of extending the statutory
benefits contemplated by the Act has to be left to the discretion of the
appropriate Government. The Supreme Court further observed that the
course adopted by the Legislature in dealing with the welfare schemes has
uniformly conformed to the same pattern and the Legislature evolves a
scheme of social and economic welfare, makes elaborate provision in respect
of it and leaves it to the Government concerned to decide when, how and in
what manner the Scheme should be introduced.