Definition
Before
discussing in detail, let us appreciate some of the important definitions that will
provide lucidity while understanding the concept of Delegated Legislation.
Black’s Law
Dictionary defines ‘Delegation’ as ‘the act of entrusting another
with authority or empowering another to act as an agent or representative’.
E.g. Delegation of Contractual Duties.
The Dictionary
further defines ‘Doctrine of Delegation’ as:
“The
Principle (based on the Separation of Powers Concept) limiting Legislature’s
ability to transfer its legislative power to another Governmental Branch,
especially the Executive Branch.”
‘Subordinate
Legislation’ has been defined as:
“Legislation
that derives from any authority other than the Sovereign Power in a state and
that depends for its continued existence and validity on some superior or
supreme authority.”
The Principle of
Delegated Legislation has been defined as[1]:
“This
principle which has been well-established is that the legislature must lay down
the guidelines, the principles of policy for the authority to whom power to
make subordinate legislation is entrusted.”
Usage and
Terminology
In India, ‘Rule’
and ‘Order’ are by far the most common names under which Delegated
Legislation is permitted.
Section 3
(51) of the General Clauses Act defines ‘Rule’ as “Rule shall mean a
rule made in exercise of a power conferred by any enactment and shall
include a regulation made under any enactment”.
Thus as
suggested by this definition, a ‘regulation’ may be made as a ‘rule’
and then it partakes the character of a rule[2]. However, a certain amount
of caution needs to be exercised while using these words. The expression ‘regulation’
should be used to describe the instrument by which the power to make the substantive
is exercised and the expression ‘rule’ to describe the instrument by
which the power to make law about procedure is exercised. But, this is
merely an indicative guideline to keep things clear and unambiguous.
We also use
various expressions and words to signify Delegated Legislation such as Order,
Directions, Schemes, Circulars, notification, bye-laws
and Instructions etc.
Limitations
on Delegated Legislation
1. The
Legislature cannot delegate Essential Legislative Functions which
consist in the determination or choosing of the Legislative Policy and of
formally enacting that policy into a binding rule of conduct[3].
Justice Cardozo
famously stated that the Legislature cannot delegate ‘uncanalized and
uncontrolled power’, the power delegated must not be unconfined and
vagrant, but must be canalized within banks that keep it from overflowing[4].
2. Thus what is
permitted is the delegation of ancillary or subordinate legislative functions
or a power to fill up the details.
3. Whether any
particular legislation suffers from Excessive Delegation has to be
decided by courts having regard to the subject-matter, the scheme, the
provisions of the statute including its preamble, and the facts and
circumstances in the background of which the statute is enacted[5].
4. Essential
Legislative Functions include the power to repeal or modify a law and cannot be
delegated.
5. In the
absence of an express or implied power to that effect, Delegated
Legislation, be it a rule, bye-law or a notification, cannot have retrospective
operation[6].
6. A power to
Tax or levy any fee cannot be inferred from mere generality of the powers
conferred by the enabling enactment. Such power of imposition of tax or fee by
Delegated Authority must be very specific and there is no scope of
implied authority for imposition of such tax or fee[7].
7. One of the
important conditions prescribed under Section 23 of the General Clauses
Act, 1897 is that the authority having power to make the rules or bye-laws
shall, before making them, must publish a draft of the proposed rules or
bye-laws for the information of person likely to be affected thereby.
8. Where the
delegating statute itself is ultra vires to the Constitution of India,
the rules made under such statute are also unconstitutional.
9. The power to
modify the parent statute is limited to bringing about consequential changes
and cannot be exercised to subvert the policy laid down by the legislature. No
radical changes in the enacted law is permitted[8].
10. The
legislature is the master of policy and if the delegate is free to switch
policy it may be usurpation of legislative power itself[9].
11. Delegated
Legislation may also be declared invalid on the following grounds:
A. Violation of
the Constitution of the India.
Difference
between Conditional Legislation and Delegated Legislation
Conditional
Legislation – Such Legislation is usually complete in itself but its
operation is made to depend on fulfilment of certain conditions and what is
delegated to an outside authority, is the power to determine according to its
own judgment whether those conditions are fulfilled.
Thus Conditional
Legislation contains no element of delegation of legislative power and is,
therefore, not open to attack on the ground of Excessive Delegation.
Delegated
Legislation – In such cases, some portion of the Legislative Power of the
Legislature is delegated to the outside authority in that, the Legislature,
though competent to perform both the Essential and Ancillary Legislative
Functions, performs only the former and parts with the latter.
Thus Delegated
Legislation confers some legislative power on some legislative authority and is
therefore open to attack on the ground of Excessive Delegation.
However, even
though Conditional Legislation is distinguishable from Delegated Legislation,
still it has been held to be a subset of Delegated Legislation. The
Court has observed that “it has content howsoever small and restricted of
the law making power itself”[10].
Sub-Delegation
It has been
consistently held by the courts that the delegate on whom the power to make
subordinate legislation is conferred cannot further delegate that power.
This principles finds its origin in the Latin maxim ‘delegatus non potest
delegare’ meaning a delegate cannot himself delegate.
Thus when an Act
prescribes a particular body to exercise a power, it must be exercised by that
body and none else unless the Act by express words or necessary implication
permits such delegation. When a sub-delegation is made, it does not divest
the authority making sub-delegation of his statutory authority.
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[1] Ajoy
Kumar Banerjee & Ors. Etc v. Union of India & Ors., AIR 1984 SC
1130.
[2]
‘Regulation’ and ‘Rule’ are interchangeable words; Parvez Qadir v. Union of
India, AIR 1975 SC 446.
[3] In
re, Article 143, Constitution of India, AIR 1951 SC 332.
[4] Panama
Sugar Refining Co. v. Ryan, 293 US 388.
[5] Bhatnagar
& Co. v. Union of India, AIR 1957 SC 478.
[6] India
Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326.
[7] Ahemdabad
Urban Development Authority v. Sharad Kumar Jayanti Kumar Pasawalla, AIR
1992 SC 1393.
[8] Rajnarain
Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569.
[9] Avinder
Singh v. State of Punjab, AIR 1979 SC 321.
[10] Lachmi
Narain v. Union of India, AIR 1976 SC 714.
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