Constitutionality of Delegated Legislation

Introduction:

Delegated Legislation is one of the most debatable issues in the domain of legal theory as it can be imputed in various ways. The Indian Democracy has relied upon three main pillars, i.e., the legislature, the executive, and the judiciary. Every administrative body has its power as vested by the Statute. The legislature has enormous functions to perform and for that reason sometimes the legislature cannot perform all its liabilities. So, there is a need for delegation of the powers of the legislature to the other authorities or body of persons. This delegation is called ‘secondary legislation’ or ‘subordinate legislation’. There are several contradictory interpretations, views, and definitions given by many eminent scholars and jurists.

According to Cooley[1], “One of the settled maxims in Constitutional Law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.”

Definition of Delegated Legislation

Delegation is defined by Black’s Law Dictionary as an act of entrusting a person or body of persons with the power of empowering him to act on behalf of that person who has given him that power or to act as his agent or representative.

According to Mukherjea J.[2], “Delegated Legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators, and a provocation to the constitutional jurists.”

According to Salmond[3], “Legislation is either supreme or subordinate. Whereas the former proceeds from sovereign or supreme power, the latter flows from any authority other than the sovereign power, and is, therefore, dependent for its existence and continuance on its superior or supreme authority.”

Sir Cecil Carr[4] says, “The delegated legislation is so multitudinous that the statute book would not only be incomplete but misleading unless it be read along with the delegated legislation which amplifies and supplements it.”

A simple meaning of the expression ‘Delegated Legislation’

Delegation is the act of making or commissioning a delegate. Generally, it means distributing its powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself[5].

Parent Act or Primary Act: The statute enacted by the legislature conferring the legislative power upon the executive is known as the Parent Act or primary Act.

Child Legislation or Subordinate Law: The rules, regulations, bye-laws, orders, etc., which are made by the executive in performance of the legislative powers conferred by the legislature are known as Subordinate Laws or Child Legislation.

Forms of Delegated Legislation

Delegated legislation covers a vast area of Legislation made by Government Agencies and the Governor-General under the authority of Acts of Parliaments. Broadly speaking delegated legislation may be classified on the following four principles[6]:

1. Title-based classification: Delegated legislation may be in the forms of rules, regulations, bye-laws, notifications, schemes, orders, ordinances, discretions, etc.
2. Discretion-based classification: A discretion may be conferred on the executive to bring the Act into operation on fulfillment of certain conditions. This legislation is called ‘Conditional’ or ‘Contingent legislation’.
3. Purpose-based classification: This type of classification is based on the nature and the extent of power conferred and the purposes for which such power can be exercised. Thus, the executive can be empowered to fix an appointed day for the act to come into force; to supply details; to extend the provisions of the Act to other areas; to include or to exclude the operation of the Act to certain territories, persons, industries, commodities; and to suspend or to modify the provisions of the Act, etc.
4. Authority-based Classification: A statute may also empower the executive to delegate further powers conferred on it to its subordinate authority. This is known as ‘Sub-delegation’.

Delegated Legislation making Institutions and Authorities

 Some supreme or primary authorities can delegate their power to any other authority which has less power than it. The following are such institutions and authorities which have such powers to delegate:

1. Council of ministers
2. Local Government
3. Public bodies or Corporation
4. State Government and Department
5. Judiciary
6. Governmental departments
7. Legislature etc.

Delegated Legislation in England

In England, Parliament is sovereign and only Parliament has the power to enact laws. But in the 19^th century, as time passed by, many scholars have noticed the development of subordinate legislation. According to C.K. Allen[7], “Nothing is more striking in the legal and social history of 19^th century in England than the development of subordinate legislation.” Maitland has also observed this situation.

In the meantime, protest against the growth of such delegated legislation was noticed in 1929. So, the matter was referred to the Committee on Ministers’ Powers (Donoughmore Committee) and this committee submitted a report[8] which stated that:

“The system of delegated legislation is both legitimate by permissible and constitutionally desirable for certain purposes, within certain limits, and under certain safeguards.”

Delegated Legislation in the USA

In theory

Delegated Legislation is not permitted under the US Constitution because they follow two doctrines:

• Separation of powers
• Delegatus non potest delegare (a delegate cannot further delegate)

In practice

In theory, it was not at all permissible for Congress to delegate its legislative power to the executive, but as the governmental and legislative functions have increased, Congress couldn’t enact all the statutes all by itself. The Supreme Court tried to balance between the two conflicting doctrines: Doctrine of separation of powers restricting delegation and inevitability of delegation due to the exigencies of the modern Government.

We can see in the case of Whiteman v. American Trucking Assn[9]., the legislature delegated legislative power to the Environmental Protection Agency (EPA) to publicize ‘air quality criteria’. The relevant Act also authorized EPA to review such standards and make such revisions as may be appropriate. The provision was challenged on the ground of excessive delegation of legislative power to EPA without providing an intelligible principle. The Supreme Court held the delegation as valid observing that a certain degree of discretion to the Agency could be allowed and that it is not lower or higher than is required to protect public health.

Delegated Legislation in India

This discussion can be divided into two parts:

• Pre-Constitution period
• Post-Constitution period

Pre-Constitutional Period

In the case of R. v. Burah[10], the Calcutta High Court held by a majority that Section 9 of the XXII of 1869 was ultra vires the power of the Indian legislature and that the legislature was a delegate of the Imperial Parliament and therefore, further delegation or sub-delegation was not acceptable.

We can see several cases where the Privy Council as well as many Courts of Justice had denied such delegation of powers to any other authorities.

Post-Constitutional Period

Delhi Laws Act, 1912, re[11] was the first landmark case after enactment of the Constitution where the Supreme Court took a decision on delegated legislation and two limitations were made to make such delegation valid:

1. The executive cannot be authorized to repeal a law that is in force. So, the provision which empowered the Central Government to repeal a law already in force in the part C State was not acceptable.
2. By exercising the power of modification, the legislative policy should remain the same; therefore, before applying any law to the Part C State, the Central Government cannot change the legislative policy.

In Brij Sunder Kapoor v. 1^st Additional District Judge[12], the Court observed that “The delegation of power to extend even future laws of another State will not be bad so long as, in the process and under the guise of alteration and modification, an alteration of the essential character of the law or a change of it in essential particulars is not permitted.”

In Hansraj L. Chulani v. Bar Council of Maharashtra and Goa[13], the State Bar Council set a rule as to ‘right to practice’ legal profession and disqualified persons if they were engaged in any other occupation. The petitioner here was in the medical profession and challenged that it was an excessive delegation of legislative functions by the legislature. Further, it was held that the rule performed the objects and purposes of the Act and provided enough safeguards and guidelines. So, this delegation was held as valid.

Tests

In deciding whether the legislature in enacting a statute has exceeded its limits or not, it is very important to take some measures or tests to conclude. A statute that is challenged on the ground of excessive delegation should go through these two tests:

1. Whether it delegates essential legislative function.
2. Whether the legislature has expressed its policy and principle for the guidance of the executive.

Permissible Delegation

• Commencement
• Supplying details
• Inclusion
• Exclusion
• Suspension
• Application of existing laws
• Modifications
• Prescribing punishments
• Framing of rules
• Removal of difficulties

Impermissible Delegation

• Essential Legislative functions
• Repeal of Law
• Exemption
• Retrospective operation
• Future Acts
• Imposition of tax

Grounds of Constitutionality of Delegated Legislation

Delegated legislation may be held unconstitutional on the ground of substantive ultra vires in the following circumstances:

1. Where Parent Act is unconstitutional
2. Where Parent Act delegates essential legislative functions.
3. Where delegated legislation is inconsistent with Parent Act.
4. Where delegated legislation is inconsistent with General Law.
5. Where delegated legislation is unconstitutional.
6. Where delegated legislation is unreasonable.
7. Where delegated legislation is mala fide.
8. Where delegated legislation further delegates (sub-delegation).
9. Where delegated legislation excludes judicial review.
10. Where delegated legislation is arbitrary.
11. Where delegated legislation operates retrospectively.

Excessive Delegation is Unconstitutional

The doctrine of excessive delegation states that if the legislature delegates its legislative functions excessively, then such delegation of power will be held unconstitutional. The grounds on which such delegation is held unconstitutional are as follows:

1. Primary Functions: If the legislature delegates its essential and primary legislative functions, such delegation would amount to a betrayal of the Constitution and it unacceptable in Law.
2. Scope: The Parliament is delegated power by the Constitution, so it cannot delegate its legislative functions to the executive as per its will, otherwise it would be unconstitutional.
3. Renunciation: Renunciation means the abandonment of sovereignty. When the legislature does not perform its primary duty and endows such functions to other authorities, this will amount to a renunciation of legislative power and it is not permissible.
4. Tests: The question of whether there is excessive delegation or not, has to be tested through three most important tests or principles:
5. Essential legislative functions to enforce laws and to determine legislative policy cannot be delegated.
6. In the present situation, as the legislature is overburdened, it has to delegate certain functions provided it lays down legislative policy.
7. It is observed in the case of Jyoti Pershad v. Administrator[14] that if the power is conferred on the executive in a manner that is lawful and permissible, the delegation cannot be held to be excessive merely on the ground that the legislature could have made more detailed provisions.
8. Controls and powers of courts: The Founding Fathers of the Constitution have entrusted the power of legislation to the representatives of the people so that the power may be exercised not only in the name of the people but also by the people speaking through their representatives. The rule against excessive delegation thus flows from and is a necessary postulate of the sovereignty of the people[15].
   On the contrary, if the legislative policy is enunciated by the legislature and a standard has been laid down, the court will not interfere with the discretion to delegate non-essential functions to the executive.

Criticism

Several jurists and scholars have heavily criticized the delegated legislation. Following are some criticisms of delegated legislation:

1. This practice is contradictory to the doctrine of delegatus non potest delegare (a delegate cannot further delegate).
2. It is against the theory of separation of powers.
3. Delegated legislation lacks proper publication.
4. Delegated legislation overlaps in functioning legislative functions.
5. Though there is judicial control, safeguards, and guidelines for delegated legislation, the huge number of functions makes it difficult for proper scrutiny to take place.
6. As it is created by some unselected persons and not by the Parliament, it is against democracy.

Conclusion

We can clearly state that the judiciary prefers the mechanism of delegated legislation and therefore to avoid uprising in the administrative process, the rule-making power is required. The doctrine of rule of law as well as the doctrine of separation of power cannot be implemented without the effective mechanism of the rule-making power. Delegated legislation should be given importance and must be introduced with certain limitations, safeguards, and guidelines.

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References:

[1] Cooley’s Constitutional Limitations, Volume 1 at page 24

[2] Quoted by Chakravarti, Administrative Law (1970) 166

[3] Salmond on Jurisprudence (12^th Edn.) 116

[4] Sir Cecil Carr, Delegated Legislation (1921) 1

[5] Sidhartha Sarawgi v. Kolkata Port, (2014) 16 SCC

[6] C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, 6^th Ed., 2017, p. 72

[7] C.K. Allen, Constitutional History of England, 501

[8] Report of Committee on Ministers’ Powers (1932) 62

[9] 149 L Ed 2d 714: 488 US 361 (1988)

[10] Empress v. Burah, ILR (1877) 3 Cal 63: 1 CLR 161

[11] AIR 1951 SC 332

[12] AIR 1989 SC 572

[13] AIR 1996 SC 1708

[14] Jyoti Pershad v. Administrator, UT of Delhi, AIR 1961 SC 1602

[15] Gualior Rayon Silk Mfg. Co. Ltd. V. CST, AIR 1974 SC; Vasanlal Maganbhai Sajanwala v. State of Bombay, AIR 1961 SC 4