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Concept Of Excessive Delegation- An Appraisal

INTRODUCTION In all democratic countries, an important segment of administrative process is delegated legislation. The great increase in delegated legislation in modern times is due to several factors.1 Though law-making is the primary function of legislature, yet no country does the legislature monopolise the entire legislative power; it shares the same with executive. No statute has been passed today by a legislature which does not confer some legislative power on the Administration. As the C.M.P has argued in England2, delegated legislation is indispensable in the modern context. The power of delegation is a constituent element of the legislative power as a whole. It is often convenient and necessary to delegate subsidiary and ancillary powers to choose delagates to carry out the policy laid down in the statute. DOCTRINE OF EXCESSIVE DELEGATION While accepting the proposition that delegated legislation is indispensable today, the question of control over this activity of the Administration becomes crucial. The question of control arises arises at two stages. 1. At source, when legislative power is conferred on the Administration by the Legislature. In England, Parliament is regarded as supreme and so the courts cannot control Parliament in the matter of delegation of legislative power. But in USA, the situation is different because of the prevalence of doctrine of separation of power. Therefore the proposition that is followed here is that legislature ought not to delegate unlimited power to an administrative authority. The legislature should itself discharge the essential legislative functions, viz., to make and lay down the policy of statute, and that only the power to lay down details to effectuate that policy may be delegated.3

The principle of excessive delegation has been laid down in Panama and the same principle has been adopted in Indian as well. In Panama Refining Co. v. Ryan4, The Plaintiffs sued to restrain the defendants, who were the federal officials from enforcing the regulations IV, V and VI prescribed by the Secretary of the Interior under Section 9(c) of the National Industrial Recovery Act as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under Commercial Clause. The section purports to authorize the President to pass a prohibitory law. In this case the delegation was held to be invalid since it involved a very sweeping congressional delegation. The Supreme Court declared: In view of the scope of the broad declaration, and of the nature of the few restrictions that are imposed, the discretion of President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country is virtually unfettered. The Court found no standard in the Act. The code-making authority was held to confer an unconstitutional delegation of legislative power.5 2. After delegated legislation has been made by the concerned authority in exercise of the power conferred as in (1.) Delegated legislation has come to stay as an important component of the modern administrative process. The question today lies is not whether there should be delegated legislation or not, but is to ensure that power given to the Administration is exercised properly, under proper controls, so that benefits of the institutions may be minimized. This leads to the important question of Judicial Control of Delegated legislation. Nature and Scope It has been accepted that Parliament does not possess the legislative power as an inherent and original power. That power has been delegated to it by constitution. Parliament thus possesses not a right that it can delegate by its sweet will, but a competence that the Constitution obliges it to exercise itself. It cannot legally delegate its legislative functions to the executive. Such delegation would be unconstitutional.6 It is well settled that essential and primary legislative functions must be performed by the legislature itself and they cannot be delegated to the executive. Essential

legislative functions consist of determination of legislative policy and its formulation as a rule of conduct. In other words, a legislature has to discharge the primary duty entrusted to it. Once the essential legislative powers are exercised by the legislature, all ancillary and incidental functions can be delegated to the executive.7 In Great Britain, excessive delegations of parliamentary powers are political concerns, in United States (and in India), they are primarily judicial. Principles to determine excessive delegation The question whether there is excessive delegation or not, has to be examined in the light of three broad principles: 1. Essential legislative functions to enact laws and to determine legislative policy cannot be delegated. 2. In the context of modern conditions and complexity of situations, it is not possible for the legislature to envisage in detail every possibility and make provisions for them. The legislature, therefore, has to delegate certain functions provided it lays down legislative. 3. If the power is conferred on the executive in a manner which 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 Test to be applied by Courts In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is necessary to enquire whether the impugned delegation involved surrender of essential legislative function and whether the legislature has left enunciation of policy and principle to the delegate. If the reply is in the affirmative, there is excessive delegation but if it is in negative, the challenge must necessarily fail. A statute challenged on the ground of excessive delegation must be subjected to two tests: 1. Whether it delegates essential legislative function; and

2. Whether the legislature has enunciated its policy and principle for the guidance of the executive.9 POSITION IN INDIA In India, in the matter of In re: Delhi Laws Act10 is a seminal case in the area of delegated legislation and majority of judges did play a creative role in evolving doctrine of excessive delegation and was in view that:

It is essential that Parliament (and State Legislatures) should have power to delegate legislative power to the Executive.

No doctrine of Separation of Powers prevails in India. The Indian Parliament working under a written constitution cannot claim an unlimited freedom to delegate legislative power. One view, propounded by Fazl Ali, Das and Sastri, JJ. Was to put the limit at effacement or abdication by the Legislature which means that legislature could delegate to any extent it likes as long as it retains its own legislative power. The other view propounded by majority was that legislature ought not to delegate its essential legislative power to an outside agency.

Mahajan J., took a stricter view, said, Parliament has no power to delegate its essential legislative functions to others, whether State legislature or executive authorities, except, of course, functions which really in their true nature are ministerial. Mukerjee J. took the view that, it cannot be said that an unlimited right of delegation is inherent in the legislative power itself and the legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law. In the matter of, Gwalior Rayon Mills Mfg. (WVG) Co.Ltd. v. Assistant Commissioner of Sales Tax11, Khanna J. stated One of the settled maxims in Constitutional Law is , that the power conferred on legislature to make laws cannot be delegated to any other body or authority. Where the sovereign power of the State has located an authority, there it must remain12 The Constitution confers a power and imposes a duty on the legislature to make laws. 13 It cannot

abdicate its functions in favour of another. But in view of the multifarious activities of a welfare state, it must necessarily delegate the working out of details to suit various aspect of situation. But there is a danger inherent in such delegation such as, it may not set down any standard for the guidance of the executive, it may confer arbitrary power on the executive to change or modify the policy laid down by it, without reserving any control over the subordinate legislation. It is for a Court to hold on a fair, generous and liberal construction of a impugned statute whether a legislature exceeded such limit. Excessive delegation as Abdication Abdication means abandonment of sovereignty. When the legislature does not legislate and entrusts that primary function to the executive or to an outside agency, there is abdication of legislative power. Abdication may be partial or total. The power to delegate is subject to the qualification that the legislature does not abdicate or efface itself by setting up a parallel legislature.14 But the delegation of legislative power need not necessarily amount to abdiction or complete effacement. What constitutes abdication and what class of cases are covered by that expression is always a question of fact and it cannot be defined nor a rule of universal application can be laid down.15 The legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of this essential function would amount to abdication of legislative powers in the eyes of law. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount ot abdication.16 OPERATION OF THE DOCTRINE OF EXCESSIVE DELEGATION Powers and Duties 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.17 At the same time, however, it also cannot be overlooked that in view of multifarious activities of a modern welfare state, the legislature can hardly find time and expertise to enter into matters of detail. Sub-ordinate legislation within a prescribed sphere is a practical necessity and pragmatic need of the day. Delegation of law making power is the dynamo of modern government. If legislative policy is enunciated by the legislature and a standard has been laid down, the Court will not interfere with the discretion to delegate nonessential functions to the executive.18 Courts view on Excessive Delegation Challenge to the validity of enactments on the ground of delegated legislation often enough presents problems which are not easy of solution. The recent history of judicial decisions however shows that, there is a considerable divergence of opinion in the approach to the question dealing with such a challenge. Where the Legislature provides and lays down principles underlying the provisions of a particular statute and also afford guidance for the implementation of the said principles, it is open for the legislature to leave to actual implementation to its chosen delegate.19 In Harishankar Bagla v. The State of Madhya Pradesh20, it was held that if we can find a reasonably clear statement of policy underlying the Provisions of the Act either in the provisions of the Act or in the preamble, then any part of the Act cannot be attacked on the ground of delegated legislation by suggesting that questions of policy have been left to the delegate. In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is, therefore necessary to enquire whether the impugned delegation involves delegation of a essential legislative function and whether the Legislature has enunciated its policy and principle and given guidance to the delegate or not. But noting the dissenting opinion given by Subba Rao, J., who said that the doctrine of excessive delegation must be applied in a meaningful manner and not as a mere

empty formality. The whole purpose of the doctrine of excessive delegation is being frustrated by the courts by the way they have applied it in practice to concrete situations. The real purpose of the doctrine is to provide real guidelines to the rule-making authority so that he may not exercise the power wrongfully. The legislature must lay down the legislative policy and principles and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. 21 In the matter of Ramesh Birch v. UOI22, the conclusions were set out thus, 1. The legislature must normally discharge its primary legislative function itself and not through others. 2. Once it is established that it has sovereign, powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. 3. It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature. 4. The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the, same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to "abdication and self-effacement" C. Patanjali Sastri, J. upheld the validity of all the impugned provisions. His Lordship held that it is as competent for the Indian Legislature to make a law delegating legislative power, both quantitatively and qualitatively, as it is for Parliament to do so provided, of course, it acts within the circumscribed limits. The learned Judge, however, drew a distinction between delegation of legislative authority and the creation of a new legislative power.23

STATUTORY

PROVISIONS

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EXCESSIVE DELEGATION In M/S Devi Das v. State of Punjab24, Section 5 of the Punjab General Sales Tax Act, 1948, was invalidated since an uncontrolled power was conferred on the Provincial Government to levy every year on the tax able turnover of a dealer a tax at such rates as the said Government might direct. Under this Section, legislature practically effaced itself in the matter of fixation of rates and it did not give any guidance either under that Section or under any provisions of the Act. In Harakchand v. UOI25, A clause in Gold Control Act was declared invalid on the ground of excessive delegation. Act empowered Administrator to authorize such person as he thinks fit to also exercise all or any powers exercised by him under the Act and different persons may be authorized to perform different powers. Reviewing the various provisions of the Act 26, the Court found out that the power conferred on the Administrator is legislative in character and extremely wide and suffered from excessive delegation of legislative power. It is now firmly established that excessive delegation of legislative power is unconstitutional. The legislature must first discharge its essential legislative functions (laying down the policy of law and enacting that policy into a binding role of conduct) and then delegate ancillary or subordinate legislative functions which are generally termed power to fill up details. After laying down policy and guidelines, the legislature may confer discretion on administrative agency to execute the legislative policy and to work our details within the framework of policy and guidelines.27 Whether a particular legislation suffers from excessive delegation is a question to be decided with reference to certain factors which may include, 1. Subject matter of the law 2. Provisions of the statute including its preamble, 3. Scheme of law, 4. Factual and circumstantial background in which the law is enacted.28

When the statute is challenged on the ground of excessive delegation, there is a presumption in favour of its vires and if two interpretations are possible, one that makes it constitutional is to be adopted. Courts may also read down and interpret the law in a way as to avoid its being declared unconstitutional.29 This is being done in view of the fact that today delegation of legislative power has become a compulsive necessity.30 It is submitted that the following observations of Subba Rao J. (as he then was) in the leading case of Vasantlal v. State of Bombay31 lay down correct law on the point and, therefore, are worth quoting: The Constitution confers a power and imposes a duty on the legislature to maker laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits. But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities. It is the duty of this Court to strike down without any hesitation any arbitrary power conferred on the executive by the legislature.32 Excessive Delegation and Constitutional objections

Delegation of power to the executive is of two kinds i.e. Legislative and Executive. The grant of legislative power is challenged on the ground that of excessive delegation whereas the grant of executive power may be challenged on the ground of its alleged violation of the right to equality guaranteed by Art. 14 or violation of any rights guaranteed under Art.19.The delegation of power is upheld once it is accordance to the policy and standards laid down by the Courts.33 Excessive delegation of legislative power can be assailed under Article 14 of the Constitution as being capable of being used in a discriminatory manner. When the High Court Judges (Conditions of Service) Act 1954 as amended in 1986 and 1988, which provided for revised pensions for judges, left the discretion to fix the dates on which such amendments were to come in force to the state governments, it was held that conferment of such power could act discriminatorily because every state government might fix a different date for that purpose thus making revised pensions applicable to the judges on different dates depending upon the state in which the High Court was located.34 The Supreme Court struck down the provisions of the Tamil Nadu Private Educational Institutions (Regulation) Act 1966, both on ground of excessive delegation as well as violation of the Art. 14 of the Constitution as it did not contain adequate guidelines to the executive for the exercise of the delegated legislative power.35 Conclusion Entrustment of legislative power without laying down policy is inconsistent with the basic concept on which our constitutional scheme is founded. Our Constitution-makers have entrusted the power to legislate to the elected representatives of the people, so that the power is exercised not only in the name of the people, but by the people. The rule against excessive delegation of legislative authority is a necessary postulate of the sovereignty of the people. It is not claimed to be nor intended to be a panacea against the shortcomings of public administration. Governance of the State in manner determined by the people through their representatives being of the essence of our form of government, the plea that a substitute scheme for governance through

delegates

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more

effective

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destructive

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structure.36

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1 See, Jain, Administrative Law, CH- IV. 2 The committee on Ministers Powers was appointed in 1929. See, Jain, ibid. 3See, Cases and Materials on Indian Administrative Law, 1994, Vol. I, Wadhwa & Company, Nagpur. P. 30. 4 293 U.S. 388 (1935). 5 Same has been also upheld in the matter of A.L.A. Schechter Poultry Corp. v. U.S. , 295 U.S. 495 (1935.) 6 Bonnard cited by Schwartz: French administrative Law and the common law world, 1954, p.93. 7 Delhi Laws Act, Re, AIR 1951 SC 332, Municipal Corporation of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232. 8 Jyoti Pershad v. Administrator, Union Territory of Delhi, AIR 1961 SC 1605. 9 Vasantlal v State of Bombay, AIR 1961 SC 4, Harishankar v. State of M.P., AIR 1954 SC 465. 10 AIR 1951 SC 332 11 AIR 1974 SC 1660 12 Extract from Cooley, Constitutional Limitations At 224 8th Edn. 13 See, Devi Das Gopal Krishnan v. State of Punjab, AIR 1967 SC 1895.

14 Gwalior rayon Silk Mfg. Co. v. Asst. Commissioner, (1974) 4 SCC 98, Mahe Breach Trading Co. v. Union Territiory of Pondicherry, (1996) 3 SCC 741. 15 Ibid. 16 In re Delhi Laws Act, AIR 1951 SC 332., Devi das Gopal Krishnan v. State of Punjab, AIR 1967 SC 1895. 17 Gwalior Rayon Silk Mfg. Co. v. Asstt. Commissioner, (1974) 4 SCC 98. 18 Ibid. pp. 108, 121. 19 Bhatnagars & Co. Ltd. v. UOI, AIR 1957 SC 478I, Gajendragadkar, J., 20 AIR 1954 SC 466. 21 Vasanlal Maganbhai v. State of Bombay, AIR 1961 SC 4. 22 AIR 1990 SC 560. 23 Ibid. 24 AIR 1967 SC 1898. 25 AIR 1970 SC 1456. 26 Ss. 114(1), 8, 11, 21, 31(3), 31(4). 27 Takwani, C.K., Lectures on Administrative Law, 3rd Edition, Eastern Book Company, 28 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321. 29 Ibid., p. 322. 30 Massey, I.P., Administrative Law, 7th Edn, Eastern Book Company. p.103. 31 AIR 1961 SC 4

32 AIR 1961 SC 4, See also Avinder Singh v. State of Punjab. 33 Sathe, S.P., Administrative Law, 7th Edition, Lexis Nexis Butterworths. P . 54. 34 M.L.Jain v. India AIR 1989 SC 669. 35 A.N. Parasuraman v. Tamil Nadu (1989) 4 SCC 683. 36 Municipal Corporation of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232