Is holding of Delegated Legislation permissible in India?
Law is the body of principles, recognized and applied by the State for the administration of justice. The principal sources of law are legislation, judicial precedent, customary law and convention. Legislation is the process of making or enacting laws. The foundation of Democracy has been laid on the Three Pillars of the Constitution, i.e. the Legislative, Executive, and the Judiciary, which works on the principle of Separation of Power. Legislative has the power to make laws, but with the increasing legislative activity, the Legislature has much workload and cannot look into every matter.
In order to ensure effectiveness in the administrative process, the work of legislative has been shifted in the hands of executives for the same Legislation has been divided into two different categories. Firstly, Supreme Legislation which means laws made by the parliament and secondly Delegated Legislation, also known as Subordinate Legislation, which is dependent on some superior authority for its validity. Under this law-making power is delegated to the executive through a parent act. Subordinate Legislation is an essential area in administrative law. In the modern concepts of a welfare state, governmental activity has expanded in various walks of law, and the Executive machinery has to issue rules and orders to catch up with the needs of the people. Delegated Legislation in India is generally expressed as statutory rules and orders. In this abstract, we had tried to examine the contribution of Indian Judiciary in upholding permissible delegation, as it is one of the most debatable and burning topics in the country.
HISTORY OF DELEGATED LEGISLATION IN INDIA
India is a democratic country and has a republic form of government, and thus, its primary concern is to ensure the welfare of its citizens. According to Bentham, the goal of the welfare state can be achieved by providing "maximum happiness to a maximum number of people". However, in the present scenario, it is not possible as Legislature need to look into innumerable matters and thus, it is not possible for its look into every issue minutely. So to remove this gap, the Executives stepped into the shoes of the Legislature in order to cover the gap where the Legislature has remained silent. Thus, there came a need for Delegated Legislation.
The legislation is the exercise of the power and function of making laws that have the force of authority under their promulgations by the sovereign State or other organization. Two broad categories of Legislation are supreme Legislation and subordinate Legislation. The Constitution of India has given the power to delegate the power to the Legislature under Article 312 it was first laid down in the case of D. S. Grewal v. State of Punjab[i].as well as Justice K.N. Wanchoo observed "There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the Legislature[ii].
The past of delegation of powers can be drawn from the charter stage of 1833 when the East India Company was recapturing its political influence in India. It vested the legislative powers entirely in Governor-General, which was an administrative body. He was entrusted to make laws and regulations to amend, repeal, or to alter any laws or regulations, which were in charge of all persons irrespective of their nationality. In 1935, an act was passed by the Government of India which contained an intensive scheme of delegation. Though our Constitution was placed on the principle of separation of powers, an entire separation of powers was not desirable; henceforth, it has managed the sanctity of the Doctrine in the modern sense. The Indian Constitution does not forbid the delegation of powers. However, an original query arises on the concept of delegated Legislation, i.e. its constitutionality.
EFFICACY OF ADMINISTRATIVE RULEMAKING IN PRE-INDEPENDENCE AND POST-INDEPENDENCE INDIA
We will study the question of permissible limits within the Constitution, within which delegated Legislation is permissible in three sets of periods. There is a considerable difference in the positions adopted by Privy Council, Federal Court and the Supreme Court in these three sets of periods. Courts have recognized the lawfulness of administrative rulemaking but have several contradictions regarding the permissible extent of delegation. This blog makes a cross-sectional inquiry of the various judgements given by these three supreme courts of appeal in India.
1. PHASE I – PRIVY COUNCIL AS THE HIGHEST COURT OF APPEAL:-
CASE- QUEEN V. BURAH [iii]
The Act under discussion was the Act XXII of 1869 Act of the Council of the Governor-General. It detached Garo hills from the civil and criminal influence of Bengal and located its administration under an official selected by the Lt. Governor. Section 9 of the Act, authorized the Lt. Governor, to extend the provisions of the Act. Burch was tried for murder by the Commissioner of Khasia and Jaintia Hills and was subsequently sentenced. Calcutta HC, depending on the Doctrine of 'delegatus non-protest delegate,’ held that the Indian Legislature, could not further sub-delegate its power under Section 9, as it is itself a delegate of the Imperial Parliament.
On appeal, the judgment was reversed by the Privy Council given by the Calcutta HC. It held that the Council of the Governor-General was a supreme legislature with plenary powers and entitled to transfer certain powers to the Provincial Executive. Laws passed by the subordinate executive authority based on such transfer of power were held to be valid.
2. PHASE II – FEDERAL COURT AS THE HIGHEST COURT OF APPEAL:-
The predecessor of the present Supreme Court, the Federal Court of India, inspected the problem of a delegation of legislative power to external authority in the case of Jatindra Nath Gupta v. the Province of Bihar.
CASE- JATINDRA NATH GUPTA V. PROVINCE OF BIHAR [iv]
In this case, the provincial government was accredited to extend the relevancy of The Bihar Maintenances of Public Order Act, 1948 for one year, under Section 1(3) of the Act. The extension could be done with such alterations as it may deem fit. This was challenged on the grounds of excessive delegation of powers. The Federal Court ruled that the delegation of power of extension with modification is an ultra virus of the Bihar Provincial Legislature as it is a necessary legislative function. J.Faizal Ali delivered a dissenting opinion; wherein, he held that the delegation of power of extension was constitutional as it only amounted to a continuation of the Act.
This pigment marks a shift from the position maintained by the Privy Council in R v. Burah. This decision has great value, as it signifies the acceptance of a rigid theory of separation of powers by the Federal Court.
3. PHASE III – SUPREME COURT AS THE HIGHEST COURT OF APPEAL:-
CASE- IN RE DELHI LAWS ACT [v]
This was a Presidential allusion under Article 143 of the Constitution. Constitutional legality of 3 laws – Section 7 the Delhi Laws Act, 1912, Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and Section 2 of the Part C States (Laws) Act, 1950 were in the investigation.
Section 7, Delhi Laws Act, empowered the Provincial Government to extend to the Province of Delhi, any law in force in any part of British India, with such restrictions and modifications as it deemed fit. Section 2, Extension of Laws Act, empowered the Central government to extend to the Province of Ajmer-Mewar, any law in force in any other province, with such restrictions and modifications as it deemed fit. Under Section 2 of the Part C States Act, the Central government was provided with similar power as in the above two instances. However, additional power to repeal or amend any corresponding law which applied to Part 'C' States was also delegated[vi]. The Delhi Laws Act, Section 7 and Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 were declared to be legal. The Part C States (Laws) Act, 1950 Section 2 was also held accurate.
Sovereign views were given by all the seven judges taking part in the judgement; however, on two points, there was integrity amongst all of them. The first point was that delegation of legislative power by the Legislature to the Executives, i.e. administrative authority was prerequisite. Moreover, in the second place, that there was an essential requirement to inflict an outer limit on delegation of power by. The disagreement between the judges was on the question of permissible limits of delegation. The judges, again and again, laid importance on the point that the Doctrine of separation of powers does not control in the field of legislative-executive correlation in India. None of the organs of the State can divest itself of the essential functions which belong to it under the Constitution. This is based on the Doctrine of Constitutional Trust.
In resolving this case, the Supreme Court had, apart from the general principles, had taken a little guidance from the Constitution. This chef-d’oeuvre of expediency appeared finally in the acknowledgement of delegation of legislative power as such without granting it in Mr Justice Cardozo's words to "run riot" but confining it "within banks that keep it from overflowing".
In India, the three organs, i.e. the Judiciary, is in support of justifying the effectiveness of delegation of legislative power in the relation of many developments like scientific, economic and social developments. The provisions relating to delegation of the legislative power of parent Act are drafted in such a way that the executive should get a final say as far as a policy matter is concerned. It has become the trend that the Legislature passes such essential subjects of the delegating statute without any specific argument in the house of the parliament. The Legislature should, with an idea to invigorate the institution of Democracy, be aware in delegating its power to regulatory agencies.
It is the need of the hour to reform the laws relating to election to constitute the Legislature with legislators of high integrity. The doctrines and principles developed by the Judiciary should be applied following the requirements of the modern age. Moreover, there is no clear outline mentioned in the Constitution of India to allow the delegation of legislative power, the judicial practice observed in respect of delegated legislation is following the intent of founding fathers our Constitution whose main concern was the adaptability of the Constitution with changing needs of the time. There is a need to perform brief research on how much power should be given to the Executives in order to exercise delegation of power while the Legislature is having a watch over the same.
[i] D.S Garewal v. the State of Punjab, 1959 AIR 512, 1959 SCR Supl. (1) 792. [ii] https://indianlegalsolution.com/delegated-legislation/ [iii](1878) 3 AC 889.
[iv]AIR 1949 FC 175.
[v] AIR 1951 SC 332.
ABOUT THE AUTHOR
This blog has been authored by Mishika Patidar who is a 3rd Year B.A., LL.B. (Hons.) student at Dept. of Law, Prestige Institute of Management and Research, Indore.
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