Delegated Legislation: Cooley's Constitutional Limitations, Volume I at page 224: "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." "No legislative body can delegate to another department of the government, or to any other authority, the power, either generally or specially, to enact laws. The reason is found in the very existence of its own powers. This high prerogative has been entrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it."

Furthermore: As far as delegation is concerned the SOP and the common law principle of the AntiDelegation rule are the well accepted principles of municipal law, which prevents a person upon whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people. The legislature is supposed to be a delegate1 deriving its powers from the people who are the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority. The idea is prescribed by the maxim delegatus non potest delegare.

Constitution provides for the separation of the governmental powers into three basic divisions the executive, the legislative, and the judicial and the powers appertaining to each department have been vested in a separate body of public servants. It is considered to be an essential principle underlying the Constitution that powers entrusted to one department should be exercised exclusively by that department without encroaching upon the powers confided to others.

The Founding Fathers of the constitution have entrusted the power of legislation to the representatives of the peoples so that the power may be exercised not only in the name of people but also by the people speaking through their representatives. The rule against excessive delegation thus flows from and is necessary postulate of soverieignity of the people .See Gwalior rayon silk Mfg. Co. v. Asst. Commr. AIR 1974 SC 1660.

As per Cooley, The different classes of power have been apportioned to different departments; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others. But this Formalistic Approach, now does not hold good2

Sir Cecil Carr quotes the Report of the Committee on Ministers' Powers, usually referred to as the Donoughmore Committee, said, "The first and by the far smallest part is made by the Crown under what survives of the prerogative. The second and weightiest part is made by the King in Parliament and consists of what we call Acts of Parliament. The third and bulkiest part is made by such persons or bodies as the King in Parliament entrusts with legislative power." Sir Cecil Carr further observes "the truth is that if Parliament were not willing to delegate lawmaking power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires." In England, the practice of delegating legislative power has certainly been facilitated by the close fusion of the legislative and executive power resulting from the development the cabinet system of government in England.

Mr Justice Story saidBut when we speak of a separation of the three great departments of Government and maintain that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments: and that such exercise of the whole would subvert the principles of free Constitution. If We See American Approach: Despite the theory which prohibits delegation of legislative power, one comes across numerous rules and regulations passed by non legislative bodies in
2

The maxim delegates non potest delegare is sometimes spoken of as laying down a rule of the law of agency; its ambit is certainly wider than that and it is made use of in various fields of law as a doctrine which prohibits a person upon whom a duty or office has developed or trust has been imposed from delegating his duties or powers to other persons. The introduction of this maxim into the constitutional field cannot be said to be altogether unwarranted, though its basis rests upon a doubtful political doctrine. To attract the application of this maxim, it is essential that the authority attempting to delegate its powers must itself be a delegate of some other authority. The legislature, as it exists in India at present day, undoubtedly in the creature of the Indian Constitution, which defines its powers and lays down its duties; and the Constitution itself is a gift of the people of India to themselves. But it is not a sound political theory,that the legislature acts merely as a delegate of the people. This theory once popularised by Locke and eulogized by early American writers is not much in favour in modern times

exercise of authority bestowed on them by the legislature in some shape or other. The legislature has always been deemed competent to create a municipal authority and empower it to make byelaws. In fact, such legislation is based upon the immemorial Anglo-Saxon practice of leaving to each local community the management and control of local affairs. The Congress can authorise a public officer to make regulations, or the Judges of the court to frame rules of procedure which Ultimately The legislature is supposed to be a delegate deriving its powers from the people who are the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority.but how is the real quest of delegated legislation As regards the maxim delegatus non potest delegare, its origin and theoretical basis are undoubtedly different from those of the doctrine of separation of powers. But, for practical purposes, both these doctrines are linked together and are used as arguments against the Congress attempting to invest any other authority with legislative powers. According to Willis, the disability of the Congress to delegate its legislative powers to the executive, purports to be based upon the doctrine of separation of powers; while its incapacity to bestow its authority upon an independent body like a board or commission is said to rest on the maxim delegatus non potest delegare.

Meaning Of Delegated Legislation:

Delegated/Subordinate legislation, is the legislation made by an authority subordinate to the sovereign authority, namely, the legislature. According to Sir John Salmond, "Subordinate legislation is that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority." Most of the enactment provide for the powers for making rules, regulations, by-laws or other statutory instruments, which are exercised by specified subordinate authorities. Such legislation is to be made within the framework of the powers so delegated by the legislature and is, therefore, known as delegated legislation.

Nature of subordinate legislation : 'Subordinateness' in subordinate legislation is not merely suggestive of the level of the authority making it but also of the nature of the legislation itself. Delegated legislation under such delegated powers is ancillary and cannot, by its very nature, replace or modify the parent law nor can it lay down details akin to substantive law. There are differences where pieces of subordinate

legislation which tended to replace or modify the provisions of the basic law or attempted to lay down new law by themselves had been struck down as ultra vires. Delegation is not handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment, remaining in the grantor or delegator. Delegation often involves the granting of discretionary authority to another, but such authority is purely derivative. The ultimate power always remains in the delegator and is never renounced

Delegation of legislative authority is different from the creation of a new legislative power. And also There is difference between subordinate and sub delegation. The former, the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instrumentality of its choice. In the latter, there is no delegation of power to subordinate units but a grant of power to an independent and coordinate body to make laws operative of their own force. For the first i.e. delegation, no express provision authorizing delegation is required. In the absence of a constitutional inhibition, delegation of legislative power, however extensive, could be made so long as the delegating body retains its own legislative power intact. For the second, however, a positive enabling provision in the constitutional document is required. i.e Enabling Statute. The legislature having thus made its laws, every detail for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer. While this is also sometimes described as delegation of legislative powers, in essence it is different from delegation of legislative power as this does not involve the delegation of the power to determine the legislative policy and formulation of the same as a rule of conduct. While the so called delegation which empowers the making of rules and regulations has been recognised as ancillary to legislative power, the Indian Legislature had no power prior to 1935 to delegate legislative power in its true sense. Apart from the sovereign character of the British Parliament whose powers are absolute and unlimited, a general power in the legislature to delegate legislative powers is not recognised in

any state. The powers of the Indian Legislature under the Constitution Acts of 1935 and 1950 are not different in this respect.

Delegated Legislation The Standing Law in India:

Whether there Can Be Delegation At All?
The maxim delegatus non potest delegare is sometimes spoken of as laying down a rule of the law of agency; its ambit is certainly wider than that and it is made use of in various fields of law as a doctrine which prohibits a person upon whom a duty or office has devolved or a trust has been imposed from delegating his duties or powers to other persons. The introduction of this maxim into the constitutional field cannot be said to be altogether unwarranted, though its basis rests upon a doubtful political doctrine. To attract the application of this maxim, it is essential that the authority attempting to delegate its powers must itself be a delegate of some other authority. The Legislature, as it exists in India at the present day, undoubtedly is the creature of the Indian Constitution, which defines its powers and lays down its duties; and the Constitution itself is a gift of the people of India to themselves. But it is not a sound political theory, that the legislature acts merely as a delegate of the people. This theory once popularised by Locke and eulogized by early American writers is not much in favour in modern times. With regard to the Indian Legislature as it existed in British days constituted under the Indian Councils Act, it was definitely held by the Judicial Committee in the well-known case of Queen v. Burah [(1878) 3 AC 889], that it was in no sense a delegate of the British Parliament. In this case the question arose as to the validity of Section 9 of Act 22 of 1869 passed by the Governor-Generals Legislative Council. The Act provided that certain special laws, which had the effect of excluding the jurisdiction of the High Court, should apply to a certain district known as Garo Hills, and Section 9 empowered the Lieutenant-Governor of Bengal to extend the operation of these laws to certain other areas if and when the Lieutenant-Governor, by notification in the Calcutta Gazette, would declare that they should be so applied.

The majority of the Judges of the Calcutta High Court upheld the contention of the respondent, Burah, that the authority conferred on the Lieutenant-Governor to extend the Act in this way was in excess of the powers of the Governor-General-in-Council, and in support of this view, one of the learned Judges relied inter alia upon the principles of the law of agency. This view was negatived by the Judicial Committee, and Lord Selborne, in delivering the judgment, observed as follows: The Indian Legislature has powers expressly limited by the Act of the imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the imperial Parliament, but has, and was intended to have, plenary powers of legislation as large and of the same nature as those of parliament itself.

J. Mukherjee Has Said in Delhi Laws Ac Case: I am quite willing to concede that the doctrine of separation of powers cannot be of any assistance to us in the solution of the problems that require consideration in the present case. In my opinion, too much importance need not also be attached to the maxim delegatus non potest delegare, although as an epigrammatic saying it embodies a general principle that it is not irrelevant for our present purpose. But even then I am unable to agree with the broad proposition enunciated by the learned Attorney-General that a legislative power per se includes within its ambit a right for the legislative body to delegate the exercise of that power in any manner it likes to another person or authority. I am unable also to accept his contention that in this respect the authority of the Indian Legislature is as plenary as that of the British Parliament, and, provided the subject-matter of legislation is not one outside the field of its legislative competence, the legislature in India is able to do through an agent anything which it could do itself. It is to be noted that so far as the British Parliament is concerned, there is no constitutional limitation upon its authority or power. In the words of Sir Edward Coke, the power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds.... It hath sovereign and uncontrollable authority in the making, confirming, enlarging, abrogating, repealing, reviving and expounding of laws.... this being the place where that absolute despotic power which must in all Governments reside somewhere is entrusted by the constitution of these kingdoms. The British Parliament can not only legislate on any subject it likes and alter or repeal any law it likes, but being both a legislative and a constituent assembly, it can change and modify the so-called constitutional laws and they can be changed by the same body and in the same manner as ordinary laws; and no act of the Parliament can be held to be unconstitutional in a British court of law. This sovereign character was not, and could not be, predicated of the Legislative Council of British India as it was constituted under the Indian Councils Act, even though it had very wide powers of legislation and within the scope of its authority could pass laws as important as those passed by the British Parliament. It is not present also in the Indian Parliament of the present day which is a creature of the Indian Constitution and has got to exercise its legislative powers within the limits laid down by the Constitution itself. Acting in its ordinary capacity as a legislative

body, the Indian Parliament cannot go beyond the Constitution or touch any of the constitutional or fundamental laws, and its acts can always be questioned in a court of law. Consequences of great constitutional importance flow from this difference and they have a material bearing on the question before us. The contention of the learned Attorney-General in substance is that the power of delegation of legislative authority without any limitation as to its extent is implicit in the exercise of the power itself, and in support of his contention he refers to the unrestricted rights of delegation which are exercised by the British Parliament. But the validity or invalidity of a delegation of legislative power by the British Parliament is not and cannot be a constitutional question at all in the United Kingdom, for the Parliament being the omnipotent sovereign is legally competent to do anything it likes and no objection to the constitutionality of its acts can be raised in a court of law. Therefore, from the mere fact that the British Parliament exercises unfettered rights of delegation in respect of its legislative powers, the conclusion does not follow that such right of delegation is an inseparable adjunct of the legislative power itself. The position simply is this that in England, no matter, to whichever department of the powers exercisable by the British Parliament the right of delegation of legislative authority may be attributed - and there is no dispute that all the sovereign powers are vested in the Parliament - no objection can be taken to the legality of the exercise of such right. But in India the position even at the present day is different. There being a written constitution which defines and limits the rights of the legislature, the question whether the right of delegation, either limited or unlimited, is included within, and forms an integral part of, the right of legislation is a question which must be answered on a proper interpretation of the terms of the Constitution itself.

Constitutional Provisions: We need not for this purpose pay any attention to the American doctrine of separation of powers; we must look to the express language of our own Constitution and our approach should be to the essential principles underlying the process of law-making which our Constitution envisages. According to the Indian Constitution, the power of law-making can be exercised by the Union Parliament or a State Legislature which is to be constituted in a particular manner and the process of legislation has been described in detail in various articles 73. Extent of executive power of the Union. (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend(a) To the matters with respect to which Parliament has power to make laws; and (b) To the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State 1[***] to matters with respect to which the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution. 162. Extent of executive power of State. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. 1. The words and letters "specified in Part A or Part B of the First Schedule" omitted by the Constitutuion (Forty-fourth Amendment) Act, 1978, s. 29 and Sch.

245. Extent of laws made by Parliament and by the Legislatures of States. (1) 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. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 246. Subject-matter of laws made by Parliament and by the Legislatures of States. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State 1[***] also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of any State 1[***] has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2[in a State] notwithstanding that such matter is a matter enumerated in the State List. 1. The words and letters "specified in Part A or Part B of the First Schedule" omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. 2. Subs. by s. 29 and Sch., the Constitution (Seventh Amendment) Act, 1956, for "in Part A or Part B of the First Schedule".

13. Laws inconsistent with or in derogation of the fundamental rights. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires, (a) "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "Laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
1

[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.] 1. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s.2.

123. Power of President to promulgate Ordinances during recess of Parliament. (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance(a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) May be withdrawn at any time by the President. Explanation. Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. (3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void. 1[* * * *] 1. Cl. (4) was ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 2 (retrospectively) and omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 16 (w.e.f. 20-6-1979). 213. Power of Governor to promulgate Ordinances during recess of Legislature. (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if(a) A Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or (b) He would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or (c) An Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President. (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance(a) Shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six

weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and (b) May be withdrawn at any time by the Governor. Explanation. Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void: Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him. 1. Cl. (4) was ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 3 (retrospectively) and omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 27 (w.e.f. 20-6-1979).

Power Of Delegated Legislation on Administrative Agency/Officers

State of M. P. & Another v. Thakur Bharat Singh 1967 AIR 1170: 1967 SCR (2) 454 Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.

Rai Sahib Ram Jawaya Kapur v. The State of Punjab, [1955] 2 S.C.R. 225, In support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken.

Article 162 provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. But Art. 162 and Art. 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other and not with the validity of its exercise. Observations of Mukherjea, C. J., in the said case are They do not mean, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. These observations must be read in the light of the facts of the case. Delegated Legislation : Whether a Necessary evil?

Delegation of 'law making' power is the dynamo of modem government. Delegation by the legislature is necessary in order that the exertion of legislative power does not become a futility. Today, while theory still affirms legislative supremacy, power floats back increasingly to the Executive. One must not take lightly and say that there can be transfer of legislative power under the guise of delegation which would tenta mount to abdication. At the same time, one must be aware of the practical reality that the parliament cannot go into details of all legislative matters. The making of law is only a means to achieve a purpose. It is not a end in itself. That end can be attained by the legislature making the law. But many topics or subjects of legislation are such that they require expertise, technical knowledge and a degree of adaptability to changing situations etc., which parliament might not possess and, therefore this end is better secured by extensive delegation of legislative power. The legislative process would frequently bog down if a legislature were required to appraise before hand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation.

It will be useful to reproduce here a passage from Administrative Law by Wade & Forsyth (Eighth Edition 2000 at page 839): "Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (As it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to

lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation. ....."

Devi Das Gopal Krishnan and Ors. Devi Das Gopal Krishnan and Ors. v. State of Punjab and Ors. [1967] 1 S.C.R. 557: The Constitution confers a power and imposes a duty on the legislature to make 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.

St Johns Teachers Training Institute v Regional Director National Council for Teachers: AIR 2003 SC 1533 The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. 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 frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming in to force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statues. Rules and Regulations made by reason of the specific power

conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The Regulations made under power conferred by the Statute are supporting legislation and have the force and affect, if validly made, as the Act passed by the competent legislature.

The Registrar of Co-operative Societies Trivandrum and Anr v. K. Kunjabmu and Ors. AIR 1980 SC 350 It is trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure to its citizens 'Social, economic and political justice', to preserve 'liberty of thought, expression, belief, faith and worship,' acid to ensure 'equity of status and of opportunity' and 'the dignity of the individual' and the 'unity of the nation'. That is what the Preamble to our Constitution says and that is what is elaborated in the two vital chapters of the Constitution on Fundamental Rights and Directive Principles of State Policy. The desire to attain these objectives has necessarily resulted in intense legislative activity touching every aspect of the life of the citizen and the nation. Executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. It has to be and it is as it should be. The Parliament and the State Legislatures are not bodies of experts or specialists. They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent. They function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full time expert executive bodies and specialist public servants. Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance. Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d'etre for delegated legislation. That is what makes delegated legislation inevitable and indispensable. The Indian Parliament an d the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself. The power to legislate carries with it the power to delegate..A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same

principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designed to further the Directive Principles of State Policy In re Delhi Laws Act AIR 1951 SC 332( Doctrine of Excessive Delegation Evolved) The Delhi Laws Act, 1912 was passed by the Governor-General-in-Council at its legislative meeting that being the legislature constituted for British India at that time, under the provisions of the group of statutes known as Indian Councils Acts (1861-1909). Delhi, which up till the 17th of September, 1912, was a part of the province of the Punjab, was created a Chief Commissioners Province on that date and on the following date the Governor-Generals Legislative Council enacted the Delhi Laws Act, 1912 which came into force on and from the 1st of October, 1912. Is it permissible for the legislature to delegate legislative power to a subordinate authority limits within which this could be done.. Reference was made by the President of India under Article 143 of the Constitution asking the Courts opinion on three questions: (1) Was Section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act? Section 7 of the Delhi Laws Act, 1912 read: The Provincial Government may, by notification in the Official Gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification. (2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act? Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 read: Extension of Enactments to Ajmer-Merwara. - The Central Government may, by notification in the Official Gazette, extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification. (3) Is Section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament? Section 2 of the Part C States (Laws) Act, 1950 read: Power to extend enactments to certain Part C States. - The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.

It will be noticed that in all the three items of legislation, mentioned above, there has been, what may be described, as conferment by the legislatures, which passed the respective enactments, to an outside authority, of some of the powers which the legislative bodies themselves could exercise; and the authority in whose favour the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws, any restrictions or modifications as it thinks fit. The controversy centres round the point as to whether such delegation was or is within the competency of the particular legislature which passed these enactments.

The contention 1 : In substance was that a legislature which is competent to legislate on a particular subject has the competence also to delegate its legislative powers in respect of that subject to any agent or external authority as it thinks proper. The extent to which such delegation should be made is entirely a matter for consideration by the legislature itself and a court of law has no say in the matter. The contention 2 : In substance was that, there could be, only two possible limitations upon the exercise of such right of delegation by a competent legislative body. One is that the legislature cannot abdicate or surrender its powers altogether or bring into existence a new legislative power not authorised by the constitutional instrument. The second is that if the constitutional document has provided for distribution of powers amongst different legislative bodies, one legislature cannot delegate to another, powers, which are vested in it, exclusively under the Constitution. It is argued that, save and except these two limitations as claimed, the doctrine of inhibition of delegation by legislative authority has no place in a Constitution modeled on the English system which does not recognize the principle of separation of powers as obtains in the American system. These questions are of great constitutional importance and require careful consideration. Summary Delhi Act Case: The Court had before it the following problems. In each case, the Central Legislature had empowered an executive authority under its legislative control to apply, at its discretion, laws to an area which was also under the legislative sway of the center. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. The variations were as follows : (1) Where the executive authority was permitted, at its discretion, to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the legislative sway of the center to the new area : This was upheld by a majority of six to one.

(2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances : This was also upheld, but this time by a majority of five to two. (3) Where the executive authority was permitted to select future Central laws and apply them in a similar way : This was upheld by five to two. (4) Where the authorisation was to select future Provincial laws and apply them as above : This was also upheld by five to two. (5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws, Central of Provincial, with or without modification : This was held to be ultra vires by a majority of four to three. (6) Where the authorisation was to apply existing laws, either Central or Provincial, with alterations and modifications; and (7) Where the authorisation was to apply future laws under the same conditions : The views of the various members of the Bench were not as clear cut here as in the first five cases, so it will be necessary to analyse what each Judge said. The opinion of Kania C.J. will be found at pages 794-797. Put briefly his view was that only Parliament can effect modifications in any "essential legislative function" viz., "the determination of the legislative policy and its formulation as a rule of conduct." For this reason that was prepared to uphold what he called "conditional" or "subsidiary" or "ancillary" legislation, but not the application by an executive authority of Provincial Acts to which the Central Legislature had not applied its mind at all (page 801); and for the same reason he excluded the application of all future legislation. Chief Justice (Mahajan J. as he then was) took an even stricter view. He was prepared to authorise delegation of ancillary or ministerial powers (pages 938 and 946) but except for that he said "Parliament has to no power to delegate its essential legislative functions to other, whether State Legislatures or executive authorise, except, of course, functions which really in their true nature are ministerial." . As against this, three of the Judges were more liberal. Das J. was of the opinion that so long as Parliament did not abdicate or efface itself and retained control in the sense of retaining the right to recall or destroy or set right or modify anything its delegate did, it could confer on the delegate all the rights of legislation which it itself possessed (page 1068). Patanjali

Sastri J. (as he then was) took the same extreme view (pages 857, 858 and 870). Fazl Ali J. did not go as far though he upheld all the Acts which were impugned in that case. At page 830 he said that "the Legislature must normally discharge its primary legislative function itself and not through others," but that it may "utilise 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. In other words, it can do everything which is ancillary to and necessary for the full the effective exercise of its power of legislation." He dealt with the power to modify at page 846 and said "The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law..... The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes." The other two Judges took an intermediate view. Mukherjea J. said that essential legislative functions cannot be delegated and at pages 982 to 984 he indicated what he meant : "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct." and at page 1000 "With the merits of the legislative policy, the Court of law has no concern. It is enough if it is defined with sufficient precision and definiteness so as to furnish sufficient guidance to the Executive Officer who has got to work it out. If there is no vagueness or indefiniteness in the formulation of the policy, I do not think that a Court of law has got any say in the matter." Dealing with the word "modification" he said at page 1006 "The word 'modification'......... does not, in my opinion, mean or involve any change of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made the Judge........" At pages 1008 and 1009 he explained this further and limited the modifications to "local adjustments or changes of a minor character."

Bose J. contented himself at page 1121 by saying that the delegation cannot extend to the "altering in essential particulars of laws which are already in force in the area in question." But he added at page 1124 "My answers are, however, subject to this qualification. The power to 'restrict and modify' does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislate, all authorities are agreed, cannot be delegated by a Legislature which is not unfettered." In Final opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above : it cannot include a change of policy. The following provision was held to be good by a majority of four to three : "The Provincial Government may........ extend with such restriction and modifications as it thinks fit.......... any enactment which is in force in any part of British India at the date of such notification." "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy. 'So long as a policy is laid down and a standard established by statue no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply'

In Harishankar Bagla v. The State of Madhya Pradesh : 1954CriLJ1322 In dealing with the validity of cl. 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by the Central Government under s. 3 of the Essential Supplies (Temporary Powers) Act, 1946, It was settled by the majority judgment in the Delhi Laws Act case that the essential powers of legislation cannot be delegated.

The Legislature must declare the policy of the law and the legal principles which are to control any -given cases and must provide a standard to guide the officials or the body in power to execute the law.

Modification of Statute: In Rajnarain Singh v.The Chairman, Patna Administration Committee, Patna and Anr. [1955]1SCR290 Bose, J., attempted to summarise the effect of the various opinions expressed in the Delhi Laws Act case: [1951]2SCR747 , and speaking for a unanimous Court observed that an executive authority can be authorised by a statute to modify either existing or future laws, but not in any essential features. Exactly what constitutes an essential feature cannot be enunciated in general terms, but it is clear that modification cannot include a change of policy. Essential legislative function consists in the determination of the legislative policy and its formulation as a binding rule of conduct. Modifications which are authorised are limited to local adjustments or changes of minor character and do not mean or involve any change of policy or change in the Act.

Taxation: Banarsi Das v. State of Madhya Pradesh [1959]1SCR427 Holding that the fixation of rates of tax not being an essential legislative function, could be validly delegated to a non-legislative body, but observed that when it was left to such a body, the legislature must provide guidance for such fixation.The Court found the guidance in the monetary needs of the Corporation for carrying out the functions entrusted to it under the Act.

In Sita Ram Bishambhar Dayal State of U.P.: [1972]2SCR141 Section 3-D(1) of the U.P. Sales Tax Act, 1948, had provided for levying taxes at such rates as may be prescribed by the State Government not exceeding the maximum prescribed therein. Hegde, J.. in speaking for the Court, observed :

However much one might deplore the 'New Despotism' of the executive, the very complexity of the modern society and the demand it makes on its Government have set in. motion forces which have made it absolutely necessary for the Legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th century have become out of date.

In Municipal Board, Hapur v. Raghuvendra Kripal [1966] 1 S.C.R. 950 The validity of the U.P. Municipalities Act, 1916, was involved. The Act had empowered the municipalities to fix the rate of tax and after having enumerated the kinds of taxes to be levied, prescribed an elaborate procedure for such a levy and also provided for the sanction of the Government. Section 135(3) of the Act raised a conclusive presumption that the procedure prescribed had been gone through on a certain notification being issued by the Government in that regard. This provision, it was contended, was ultra vires because there was an abdication of essential legislative functions by the legislature with respect to the imposition of tax inasmuch as the State Government was given the power to condone the breaches of the Act and to set at naught the Act itself. This, it was contended, was an indirect exempting or dispensing power. Hidayatullah, J. speaking for the majority, said that regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is proper to leave to these municipalities the power to impose and collect these taxes. He further said that apart from the fact that the Board was representative body of the local population on whom the tax was levied, there were other safeguards by way of checks and controls by Government which could veto the action of the Board in case it did not carry out the mandate of the legislature.

In Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills [1968]3SCR251 The main question was about the Constitutionality of delegation of taxing powers to municipal corporations. The Delhi Municipal Corporation Act (66 of 1957) by Section 113(2) had empowered the Corporation to levy certain optional taxes. under Section 150, power was given to the Corporation to define the maximum rate of tax to be levied, the classes of persons and the description of articles and property to be taxed, the systems of assessment to be adopted and the exemptions, if any, to be granted. The majority of the court held the delegation to be valid.

Wanchoo, C.J. observed that there were sufficient guidance, checks and safeguards in the Act which prevented excessive delegation. The learned Chief Justice observed that statements in certain cases to the effect that the power to fix rates of taxes is not an essential legislative function were too broad and that ''the nature of the body to which delegation is made is also one factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation". According to the learned Chief Justice, the fact that delegation was made to an elected body responsible to the people including those who paid taxes provided a great check on the elected councilors imposing unreasonable rates of tax. He then said :The guidance may take the form of providing maximum rates of tax up to which a local body may be given the discretion to make its choice, or it may take the form of providing for consultation with the people of the local area and then fixing the rates after such consultation. It may also, take the form of subjecting the rate to be fixed by the local body to the approval of Government which acts as a watchdog on the actions of the local body in this matter on behalf of the legislature. There may be other ways in which guidance may be provided.

On a review of the above cases the following principles appear to be well-settled (i) Under the Constitution the Legislature has plenary powers within its allotted field; (ii) Essential legislative function cannot be delegated by the Legislature, that is, there can be no abdication of legislative function or authority by complete effacement, or even partially in respect of a particular topic or matter entrusted by the Constitution to the Legislature; (iii) Power to make subsidiary or ancillary legislation may however be entrusted by the Legislature to another body of its choice, provided there is enunciation of policy, principles, or standards either expressly or by implication for the guidance of the delegate in that behalf. Entrustment of power without guidance amounts to excessive delegation of legislative authority; (iv) Mere authority to legislative on a particular topic does not confer authority to delegate its power to legislate on that topic to another body. The power conferred upon the Legislature on a topic is specifically entrusted to that body, and it is a necessary intendment of the constitutional provision which confers that power that is shall not be delegated without laying down principles, policy, standard or guidance to another body unless the Constitution expressly permits delegation; and (v) The taxing provisions are not exception to these rules.

Dangers 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.

Solution Committees on Ministers Powers observed that The precise limits of lawmaking power which parliament intends to confer on a minister should always be expressly defined in clear language by the statutes which confers it when discretion is conferred, its limits should be defined with equal clearness. Laying down of limits in the enabling Acts within which executive action must work is of greater importance to England than to any other country, because in the obscure of any constitutional limitation, it is on the basis of those parliamentary limits alone that the Power of judicial review can be exercised. Simily of Expression: Delhi Laws Act: Whether Delegation permissible? Are there Any Limits? Harishankar Bagla Case : Definition of Essential Function. Gwalior Rayon Case : H.R Khanna J. Clear Policy Necessarily to be Supplied.