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Introduction
Opening lines are said to be the hallmark of any submission,
whilst mine
is simple. Putting it candidly, delegation of legislative function
or
delegated legislation is indeed formidably an integral and
necessary
aspect for smooth and easy functioning of any country.
We have before us a judgment rendered by the apex Court of India,
through which the momentous of delegated legislation is reflected
and
certain aspects of the same are discussed in great length. The
case
being that of, In re Art. 143, Constitution of India and Delhi
Laws Act
(1912) . The facts of the case being simple wherefore certain
Sections
of (a) Delhi Laws Act (13 of 1912), S.7, (b) Ajmer-Merwara
(Extension of
Laws) Act (52 of 1947), S.2 and (c) Part C States (Laws) Act (30
of
1950), S.2 are scrutinized by the Court for their
constitutionality. The
issue thus being simple, whether they are intra or ulta-vires the
Constitution of India.
The six-judge bench took interesting standpoints where the
constitutionality of the first two Acts under the scanner were
upheld
whereas the second part of Section 2 of the Part C States (Laws)
Act (30
of 1950) was held to be ultra-vires. Most certainly, the judgments
of
Chief Justice Kania, Justice Fazl Ali and Justice Bose can said to
be
perfectly worded and elaborately dealing with the topic.
The importance of delegated legislation or for that matter
sub-delegation is so immense that even in England, which has no
Constitution, this aspect was raised when occasions of conferment
of
powers on Sub-ordinate bodies became frequent and assumed large
scope,
questions about the advisability of that procedure were raised and
a
Committee on the Minister's Powers, what is generally described as
the
Donoughmore Committee was appointed.
The Indian Legislature in 1861 and upto 1915 was a Sub-ordinate
legislature and not a sovereign legislature. Therefore under the
Crown
it was delegated legislative functions. However, the legislations
it
made were reviewed by the Crown. This clearly implicates that
delegation
of legislative function is not a very recent or new phenomenon. It
has
been in existence since time ever on record. The simple reason for
this
being convenience.
Territories being enormous, monitoring and controlling is not
possible
for one administrative or executive body. Therefore it is but
obvious
when certain legislative and executive functions are vested with
other
authorities rather than a sole central authority exercising all
functions. An example of the same being that, in case of emergency
where
the safety of the Union of India is in danger, the President is
given
express power to suspend the Constitution and assume all
legislative
powers. Similarly in the event of the breaking down of the
administrative machinery of a State, the President is given powers
under
Article 257 of the Constitution of India to assume both
legislative and
executive powers in the manner and to the extent found in the
Article.
There can be no doubt that subject to all these limitations and
controls, within the scope of its powers and on the subjects on
which it
is empowered to make laws the Legislature is supreme and its
powers are
plenary.
The Doctrine of Separation of Power is well recognized by all the
civilized nations of the world. In India too such distinction of
powers
of a sovereign are classified under the Legislative, Executive and
Judiciary. This distinction is blurred, as some would contend,
when
powers are delegated or sub-delegated. For example, if the
Executive
were given Legislative powers or vice-versa. However, attention
must be
drawn to the fact that as to this date, such situations very much
exist
under our legal framework. The Executive Magistrate, being a part
of the
Judiciary is vested with certain Executive functions. In a similar
fashion, governmental departments, being a part of the
Administrative
body also exercise quasi-judicial functions, which I must mention
are a
must for their functioning. This clearly supports my argument that
construing strict, inflexible lines is not pragmatic between the
the
Legislative, Executive and the Judiciary.
Our understanding would now further question as to whether there
ought
to be any restrictions on the said delegation of powers and
functions.
As is known, no rule is absolute and there is nothing which is
free of
fallacy, reasonable restrictions are a must. In the aforementioned
case,
the President of India puts forward three tests which define or
limit
the scope of delegated legislation and functions. They being :-
The legislative authority can so delegate its function if the
delegation
can stand three tests,
(1) it must be a delegation in respect of a subject or matter
which is
within the scope of the legislative power of the body making the
delegation,
(2) such power of delegation is not negatived by the instrument by
which
the legislative body is created or established, and
(3) ) it does not create another legislative body having the same
powers
and to discharge the same functions which it itself has, if the
creation
of such a body is prohibited by the instrument which establishes
the
legislative body itself.
The power of delegation is implicit and included in the power of
legislation. This being the touch-stone for not rendering the
respective
Acts ultra-vires. The same authority to which the powers are
delegated
are also subjected to the above-stated tests.
The current global trend is fast changing and responding to the
need of
powers which have to be delegated and further sub-delegated. It
for this
reason the Latin principle ‘delegata potestas non potest delegari’
which n simple terms means that a delegated function or power cannot be
further delegated, is undergoing cynicism and was also disparaged
as
early as 1825 . It is virtually rendered as just a principle which
no
one follows. However, subject to the three tests, this principle
may be
used when prima facie the function under question should have been
carried out by that particular authority itself and should have
not been
delegated due to its urgency and importance, this being my own
submission. Yet one must remain vigilant that the principle is not
absolutely refuted so that it looses its essence.
As observed by Justice Fazl
Ali, The true distinction. . . . . .
is
this : The Legislature cannot delegare its power to make a law ;
but it
can make a law to delegare a power to determine some fact or state
of
things upon which the law makes, or intends to make, its own
action
depend. To deny this would be to stop the wheels of government.
Another limitation is that a delegated legislation should not
attempt to
make another parallel legislation through that delegated
authority.
Justice Ali too observes certain restrictions on delegated
legislations,
although agreeing with the necessity for such kind of delegation.
However, it may be noted that absolute power, as told to me once
by my
teacher, is the greatest rush of fluid a person can incur. Thus to
prevent this these restrictions are enumerated hereunder, which
are
stated in His Lordships own words, and tampering them would take
away
the essence of the same :-
(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. In other words, it can do everything which is
ancillary to and necessary for the full and effective exercise of
its
power of legislation.
(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 delegare these being its good
sense and the principle that it should not cross the line beyond
which delegation amounts to abdication and self-effacement.
Justice Bose at the same time suggests another test which requires
that
the nature of the powers conferred by the superior legislature
upon
other legislatures, be scrutinized and examined. However,
ultimately it
is agreed upon the fact that today delegation of legislative
function
and other functions is a current necessity and cannot be done away
with.
The Parliament does not have enough time to monitor the needs of
the
entire country. Therefore, it must delegate its functions to other
legislatures, although keeping a regulatory control over them.
Justice
Bose may term it as ‘shirking of responsibility’, however, the law
must
respond to the present day needs rather than relying upon archaic
principles of laws and pre-set notions.
To my mind, and my personal views, delegation of powers is a must
with
only one reasonable restriction. The delegation must not be such
that it
takes away the very title of a subordinate authority i.e. the
subordinate authority should not do a particular act which the
superior
authority itself cannot do. This in deeper meaning would support
the
restriction placed upon creation of a parallel legislature. No
problem
therefore arises if delegated acts are done within the scope and
ambit
of the authority the superior authority defines.
Opening lines are paid heed to, yet greater attention is paid to
closing
sentences. Food for thought being that delegation must only be
possible
of what the legislature or for that matter any superior authority
cannot
do, rather than what they can do and delegated to those who are
aware of
what they may do and also what they may not do. Think about it!!"
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The
Power Of Delegation : An Inquiry
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The
author can be reached at: raunakjain@legalserviceindia.com /
