Prakaash-m.docx

DELEGATED LEGISLATION

CONTENTS INTRODUCTION CLASSIFICATION OF DELEGATED LEGISLATION TYPES OF DELEGATED LEGISLATION NEED FOR DELEGATED LEGISLATION DELEGATED LEGISLATION IS IMPORTANT BECAUSE OF SEVERAL REASONS ADVANTAGES OF DELEGATED LEGISLATION DISADVANTAGES OF DELEGATED LEGISLATION REASONS FOR GROWTH PURPOSE BASED CLASSIFICATION CASE LAWS DELEGATED LEGISLATION IN INDIA CONCLUSION BIBLIOGRAPHY

Introduction The Constitution of Indian empowers Legislature to make laws for the country. One of the significant legislative functions is to determine a legislative policy and to frame it as a rule of conduct. Obviously such powers cannot be conferred on other institutions. But keeping in mind various multifarious activities of a welfare State, it is not possible for the legislature to perform all the functions. In such situation, the delegated legislation comes into the picture. Delegated Legislature is one of the essential elements of administration whereby the executive has to perform certain legislative functions. However, one must not forget the risk associated with the process of delegation. Very often, an overburdened Legislature may unduly exceed the limits of delegation. It may not lay down any policy; may declare any of its policy as vague and may set down any guidelines for the executive thereby conferring wide discretion to the executive to change or modify any policy framed by it without reserving for itself any control over subordinate legislation. Therefore, even though Legislature can delegate some of its functions, it must not lose its control completely over such functions.

Classification of Delegated Legislation There are several ways for classifying delegated legislationI. Title based classification Parliament does not follow any particular policy in choosing the forms of delegated legislation. Delegated legislation may also be classified on basis of the nature and extent of delegation of legislative power. According to the Committee on Ministers' powers, there are two types of parliamentary delegation. The Committee on Minister's Powers recommended for the simplification of nomenclature. It suggested for confining the term 'rule' to the statutory instrument regulating procedure, the term 'regulation' to describe the substantive administrative rule--making and the term 'order' to be confined to instruments exercising executive and quasi- judicial decisions1. . II. Nature based classification 1. Normal Delegation There are two types of normal delegation: A. Positive delegation.-Where the limits are clearly defined in the Parent Act, it is called positive delegation. B. Negative delegatlon.-Where the delegated power does not include power to do certain things, it is known as negative delegation e.g. power to legislate on matters of policy or power to impose tax. 2. Exceptional Delegation.

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Dr.kailash rai-Administrative Law

Exceptional delegation is also known as Henry VIII clause. Instances of exceptional delegation may be as follows: A.Power to legislate on matters of principle. B. Power to amend Acts of Parliament. C. Power giving such a wide discretion that it is almost impossible to know the limits. D.Power to make rules which cannot be challenged in a court of law. therefore that delegated legislation appears in several forms viz., rules, regulations, orders, notification, bye-law, scheme and direction ending as the Act of Parliament from which it was created. Types of delegated legislation Delegated Legislation is a term which covers the vast amount of legislation made by government agencies and the Governor-General under authority of Acts of Parliaments, which delegate this power to agencies. This type of legislation is also known as Subordinate Legislation or, Legislative Instruments. Within the broad area of Delegated Legislation the following more specific terms are sometimes used:

Regulation The most common form of delegated legislation. Used for legislation of general application emanating from a government department. Rule Legislation specifying procedural formalities, e.g court procedures such as the High Court Rules. Ordinance Primary legislation of non self governing territories, made by a federal government department to apply to a particular territory. Also used for the legislation of some State local government bodies. By-law Made by a statutory corporation having effect only within the area of responsibility of the authority. Also used for the legislation of some State local government bodies There is also a range of other delegated legislation which includes: Decisions, Declarations, Determinations, Directions, Orders, etc. Need For Delegated Legislation The process of delegated legislation enables the Government to make a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the authority to modify or alter sanctions under a given statute or make technical changes relating to law. Delegated legislation plays a very important role in the process of making of law as there is more delegated legislation each year than there are Acts of Parliament.2

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M.P.Jain,principles of Administrative Law

Delegated Legislation is important because of several reasons. Delegated Legislation reduces the burden of already overburdened Legislature by enabling the emxecutive to make or alter the law under the authority of Legislature. Thus, this helps the Legislature to concentrate on more important matters and frame policies regarding it. It allows the law to be made by those who have the required knowledge and experience. For instance, a local authority can be permitted to enact laws with respect to their locality taking into account the local needs instead of making law across the board which may not suit their particular area. The process of delegated legislation also plays a significant role in an emergency situation since there is no need to wait for particular Act to be passed through Parliament to resolve the particular situation. Finally, delegated legislation often covers those situations which have not been anticipated by the Parliament during the time of enacting legislation, which makes it flexible and very useful to lawmaking. Delegated legislation is, therefore, able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.

. Advantages of Delegated Legislation: Delegated legislation is both necessity as well as risk because it has certain advantages as well as disadvantages. As regards advantages, its important advantage is that it saves valuable time of Parliament, which is everywhere over worked and has no time to go into the details of the legislative piece being enacted by it. Then its another advantage is since the Parliament is not always in session it is this type of legislation which fills the gap when emergencies like floods, famine, etc., arise. With its help it is possible to experiment with some types of legislative measures, which if proved success, on that comprehensive legislation can be undertaken. It is delegated legislation which ensures flexibility because legislative measure can easily be modified, if local conditions so warrant. This proves of considerable advantage for departments which deal with such matters as labour welfare, social welfare, child and family welfare, etc. It is delegated legislation which enables the government to use fully available talents for law making purposes. The executive can also consult various affected interests by a particular piece of legislation, which means willing compliance of laws, rules and regulations.

Disadvantages of Delegated Legislation: But delegated legislation has its own advantages. There are critics who believe that it poses a threat to the authority of the Parliament and liberties of the people. In delegated legislation the authorities consult only organised interest while great mass of unorganised interests are neither consulted nor can be consulted. Not only this but usually executive tries to legislate on a matter which is easy to implement leaving difficult matters to their own care. Then in practice it has been found that delegated legislation directly or indirectly deprives the citizens of judicial protection. Then executive laws may not be properly publicised and thus the people may not be aware of the very existence of any piece of legislation. Delegated legislation means flexibility in legislation which can result in confusion and uncertainty. About its danger the ex-Chief Justice of England Hewart said, “It is despotism more sinister, but less visible, which was emerging slowly but surely and the liberties’ of the people were very much in danger.”

Reasons for Growth 1. Law making or ever widening modern welfare and service state is not possible. For the nature and quality of work required 365 days – may not be sufficient and if overburdened the parliament can’t give quality legislation. Also it is occupied with important policy matters and rarely finds time to discuss matters of details. 2. Filling in Details of legislation- The executive in consultation with the experts or with its own experience of local conditions can better improvise. Also legislation has become highly technical because of the complexities of a modern govt. 3. Need for flexibility: - Ordinary legislative process suffers from the limitation of lack of experiment. A law can be repeated by parliament itself, if it required adjustment administrative rule making is the only answer between two sessions. 4. Meeting Emergency Situations – it is a cushion against crisis because what if crisis legislation is needed. 5. When Govt. action required discretion – rule making power of administrative agencies is needed when the government needs to have discretion to carry out the policy objectives. 6. Direct participation of those who are governed is mere possible in delegated legislation.

Purpose based classification: 1. Enabling Acts: - Appointed day clause: under this the executive has to appoint a day for the Act to come into operation. 2. Extension and application Acts 3. Dispensing and Suspending Acts: - to make exemption from all or any provision of the Act in a particular case or class of cases or territory, when circumstances warrant it. These are meant to enable the administration to relieve hardship which may be occasioned as a result of uniform enforcement of law. 4. Alteration Acts. : - Technically alteration amounts to amendment, yet it is a wide tern & includes both modification and amendment. Power to modify Acts has mostly been delegated as a sequel to the power to the power of extension and application of laws. The power of modification is limited to consequential changes, but, it overstepped it suffers challenge on the ground that it is not within the legislative intent of modification. In Queen v. BurahThe Privy Council held, that the 9th section of the Act conferring power upon the Lieutenant-Governor to determine whether the Act of any part of it should be applied to a certain district, was a form of conditional legislation and did not amount to delegation of legislative powers3. It is like “removing difficulty” so that the various states may coexist. 5. Power to make rules “ to carry out the purpose of the Act” 6. Classifying and fixing standard Acts: - Power is given to fix standard of purity, quality or fitness for human consumption. 7. “Clarify the provision of the statutes Acts”. To issue interpretation on various provision of the enabling Act.

Case laws In the case of Western Indian theatre, Ltd. v. Cantonment Board Poona Cantonment the different rates of entertainment tax imposed on two different Cinemas was challenged. The court rejected it saying that keeping in mind the Large accommodation, the locality, the no of visitors and overall circumstances the imposition of different rate of tax is justified and is not discriminatory4.

LakshmiNarain v. UOI the Supreme Court clearing the position stated that No useful purpose is served by calling a power conferred by a status as conditional legislation instead of delegated legislation5.

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App case.889 AIR1959 SC 582 5 AIR 1976 SC 714 4

There is no difference between them in principle, for conditional legislation like delegated legislation has “a content howsoever small restricted, of the law making power itself’ – and in neither case can the person be entrusted with the power to beyond the limits which circumcise the power.”

In Inder Singh v. State of Rajasthan the Supreme Court upheld the validity of the Rajasthan Tenant’s Protection Ordinance on the ground that it is conditioned legislation. The Ordinance was promulgated for two years but S.3 had authorized the governor to extend its life by issuing notification if required6.

Tulsipur Sugar Co. Ltd. v. Notified Area Committee was the case where notification issued u/s 3 of U.P. Towner Area Act, 1914 vide which the Limits of Tulsipur town had been extended to the village Shitalpur it was held as conditional legislation. It laid down that conditional legislation cannot be characterized as subordinate legislation. It is strange logic as the latter is a broader term and includes the former7. K. S. E. Board v. Indian aluminum the act governing the regular production, supply of essential articles but what is essential Article was left to executive. The supreme court held it as a conditional legislation8. Devi Das v. State of Punjab wher the court held it valid that the Executive can levy tax at a rate between 1% and 2% but if the Govt. levys sales tax at such rates an it “deem fit' it is invalid9.

S.B. Dayal V/s State of up the apex court meted out the philosophy as “In a modern society taxation is an instrument of planning. It can be used to achieve the economic and social goals of the state for that reason the power to tax must be a flexible power”10.

Delegated Legislation in India (i) Pre-Constitution Period. As regards pre-Constitution period relating to delegated legislation in India, Queen v. Burah[22] is considered to be the leading authority propounding the doctrine of conditional legislation. In 1869, the Indian legislature passed an Act purporting to remove the district of Garo Hills from the jurisdiction of the civil and criminal courts and the law applied therein, and to vest the administration of civil and criminal justice within the same district in such officers as the LieutenantGovernor of Bengal might appoint for the purpose. By section 9, the Lieutenant-Governor was empowered from time to time, by notification in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the provisions contained in the Act to the Jaintia, Naga and Khasia Hills and to fix the

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AIR 1957 SC 510 AIR 1980 SC 882 8 AIR 1976 SC 1031 9 AIR 1967 SC 1895 10 AIR 1972 SC 1168 7

date of application thereof as well. By a notification dated October 14, 1871, the Lieutenant Governor extended all the provisions of notification which was challenged by Burah who was convicted of murder and sentenced to death. The High Court of Calcutta by a majority upheld the contention of the appellant and held that section 9 of the Act was ultra vires the powers of the Indian Legislature. In the opinion of the Court, the Indian Legislature was a delegate of the Imperial Parliament and as such further delegation was not permissible11. Thereupon the Government appealed to the Privy Council. The Act was held valid by the Privy Council. It was held that the Indian Legislature was not an agency or delegate of Imperial Parliament and it had plenary powers of legislation as those of Imperial Parliament. It agreed that the GovernorGeneral in Council could not, by legislation create a new legislative power in India not created or authorised by the Council's Act of Imperial Parliament. However, in fact it was not done. It was a case of only conditional legislation, as the Governor was not empowered to pass new laws but merely to extend the provisions of the Act already passed by the competent legislature upon fulfillment of certain conditions. . The decision of the Privy Council is open to two different interpretations. One interpretation is that since the Indian legislature ·is not a delegate of British Parliament, there is no limit on the delegation of legislative power. But the other interpretation is that since Privy Council has validated only conditional legislation, therefore, delegation of legislative power is not permissible. The question of constitutional validity of delegation of powers came for consideration before the Federal. Court in JatindraNath Gupta v. Province of Bihar. In this case the validity of section 1 (3) of Bihar Maintenance of Public Order Act, 1948 was challenged on the ground that it empowered the Provincial Government to extend the life of the Act for one year with such modification as it may deem fit. The Federal Court held that the power of extension with modification is not a valid delegation of legislative power because it is an essential legislative function which cannot be delegated. In this way for the first time it was ruled that in India Legislative powers cannot be delegated.

(ii) Post-Constitution Period (a) Constitutionality of Delegated Legislation. - As the decision in JatindraNath case had created confusion, the question of permissible limits of delegation of legislative power became important. Therefore, in order to get the position of law clarified, the President of India sought the opinion of Supreme Court under Article 143 of the Constitution. The question of law which was referred to the Supreme Court was of great Constitutional importance and was first of its kind. The provision of three Acts, viz., (i) Section 7 of the Delhi Laws Act, 1912; (ii) Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947; and (iii) Section 2 of the Part C States (Laws) Act, 1950, were in issue in Delhi Laws Act Case

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In Re Delhi Laws Act case may be said to be "Siddhanatawali" as regards constitutionality of delegated legislation. The importance of the case cannot be under-estimated inasmuch as on the one hand, it permitted delegation of legislative power by the legislature to the executive, while on the other hand, it demarcated the extent of such permissible delegation of power by the legislature12. In this case it was propounded: (a) Parliament cannot abdicate or efface itself by creating a parallel legislative body. (b) Power of delegation is ancillary to the power of legislation. (c) The limitation upon delegation of legislative power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the Constitution. Essential legislative power means laying down policy of law and enacting that policy into a binding rule of conduct. (d) Power to repeal is legislative and it cannot be delegated. The theme of Re Delhi Laws Act case is that essential legislative function cannot be delegated whereas non-essential can be delegated.

CONCLUSION In the end we can conclude that the delegated legislation is important in the wake of the rise in the number of legislations and technicalities involved. But at the same time with the rise in delegated legislation, the need to control it also arises because with the increase in the delegation of power also increases the chance of the abuse of power. The judicial control apart from the legislative and procedural control is the way how the delegation of power can be controlled. Thus, the delegated legislation can be questioned on the grounds of substantive ultra vires and on the ground of the constitutionality of the parent act and the delegated legislation.

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Indian law institute,cases and materials on Administrative law in india,1966,p220

BIBLIOGRAPHY BOOK : M.P.JAIN-PRINCIPLES OF ADMINISTRATIVE LAW C.K.TAKWANI AND M.C.THAKKER-LECTURES ON ADMINISTRATIVE LAW Dr.KAILASH RAI- ADMINISTRATIVE LAW

ONLINE DATABASE SOURCES : http://en.m.wikipedia.org.wiki http://indiankanoon.org http://www.lexology.com http://www.supremecoutrcases.com