Delegation of Legislative Authority in India: A Commentary with some Case Laws

 

What is ‘Delegated Authority’?

As per the principle of separation of powers, state authority is divided among three organs- the legislature, executive and judiciary. The task of the legislature is to frame laws. The executive has been entrusted with the task of implementing the laws framed by the legislature and the task of the judiciary is to uphold them.

Though the doctrine of separation of powers is considered the cornerstone of modern constitutional forms of government, in practice this principle is rarely followed strictly. Practical contingencies make some overlap of functions inevitable.

One such instance of one organ performing the task of another is the prevalence of delegation of legislation.

Delegation of legislation entails the transfer of part of the legislature’s authority to frame laws to the administration/executive.

Legally speaking, delegated legislation may be defined as 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”.

In India, such supreme law-making authority is the Parliament for Union subjects and the state legislatures for state subjects. Though the citizens are ultimately the sovereign, our constitution confers the power to frame laws on the Parliament and state legislatures.

However, they do not account for all the legislative output of the government. A major chunk of the legislation is promulgated by the executive/administration and is known as Delegated Legislation.

Usually what happens is that the legislature would pass a law defining just the broad principles and general policies relating to the subject matter in question. The task of framing its precise rules and mode of operation is left for the executive/administration to devise.

Owing to the baffling complexities of real-life situations, it is usually not considered wise for the legislature to define all the intricate rules pertaining to a newly passed law. The task of framing the rules pertaining to its operation and implementation is best left to the administrative apparatus which is better placed to appreciate what requires to be done at the grassroots.

Some jurists have tended to look upon administrative legislation as a necessary evil; a sort of compromise that infringes on the hallowed principle of the separation of the powers of the executive and the legislature. However, it is also possible to look upon it as being complementary to the principle of separation of powers. The very word ‘delegation’ implies that the authority to legislate does not belong to the administration as a matter of right. The legislature is at liberty to take it back if it feels that doing so is leading to abuse of authority or proving to be counterproductive. Delegation of legislative authority has the legal status of a pragmatic measure to facilitate the exercise of legislative power and to ensure close coordination and cooperation between these two organs of the state. It is an accepted position in law that to ‘delegate’ to another is not to denude oneself. As Justice Wills observed in Huth v Clarke, as far back as 1890, “The word delegation in its general sense and as generally used, does not imply, or point out to, a giving up of authority, but rather the conferring of authority upon someone else.” And the word “delegate” means little more than an agent. As an agent of the legislature in this regard, in its legislative capacity, the executive exercises no power of its own but only the powers of its principle.

Now coming to the question of ‘Why Delegated Authority?’

The legislatures in India often delegate broad legislative powers to the Administration. This practice is not new. In fact, it is as old as the tradition of law-making. From its vantage point, a legislative body cannot anticipate the complex issues emanating from the implementation of the law. Therefore, the task of framing the detailed rules of law is best left to the administration/executive. In Registrar, Co-operative Societies v K Kunjabmu (1980) the Court observed that ‘Neither the parliament nor the State Legislatures can visualize 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.’

Need for Safeguards

Its usefulness and indispensability notwithstanding, the delegation of legislative authority needs to be carefully regulated and safeguarded against abuse. Delegation of legislative authority entails the flow of power from the legislature to the bureaucracy. While the legislature is responsible to the electorate, the bureaucracy is not. In a democratic form of government people are the sovereign, therefore, power may legally be borne only by their chosen representatives. What is permitted is the delegation of the ancillary or subordinate legislative function, or what is fictionally called, a power to fill up the details. In modern democracies, the legislature passes Acts in ‘skeleton’ form containing only the barest of general principles and thus leaves to the executive the task of laying down the ‘details.’

Not let’s look at how delegation of Legislative Power is done in England and the USA

In England the Parliament is supreme, meaning that it has unlimited power to make any law. Courts in England cannot question any parliamentary law on any ground. Therefore, there is no restriction on the Parliament’s capacity to delegate legislative power- it may confer law-making power on any authority, and to the extent it wishes. There exists no external agency in England to regulate or prescribe norms or standards for the delegation of legislative authority.

In contrast to this, the position in the USA is substantially different. Unlike the English Parliament, the US Congress is governed by a written constitution that gives the courts the power to interpret the Constitution and declare a congressional statute unconstitutional if it does not conform with their view of the Constitution.

The US courts have traditionally raised two theoretical objections against the delegation of legislative power to the executive. First, on the ground of the doctrine of separation of powers which is deeply embedded within the Constitution of the USA, and second, by evoking the doctrine of delegatus non potest delegare- The doctrine means that a delegate cannot further delegate its authority. The courts have taken the view that Congress, being a delegate of the people, cannot further delegate its law-making functions to any other agency.

These abstract theoretical values have their own symbolic and operative legal purpose, but pragmatic concerns cannot be ignored either. In course of time, the courts have relaxed the rigors of the doctrine of separation of powers and permitted broad delegation of legislative power, subject to the rider that the Congress itself should lay down standards or policies for the guidance of the delegation, that delegation should not be uncontrolled, and that the Congress should not allow a free hand to the executive to make any rules it likes.

Just as in the USA, in India the question of permissible limits of delegation of legislative power has been hotly contested in the courts. A question that came up in re Delhi Law Act, of 1951, before the court was whether the legislature in India is to adopt the British model that gives it unlimited and unrestricted power to delegate legislative authority. In this context, Justice Kania rejected the Attorney General’s plea that the legislature could delegate its legislative function entirely to some executive or administrative body and refrain from defining policy altogether. In the same reference, Justice Fazl Ali observed, that the legislature must normally discharge its primary legislative function itself not through other bodies. 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. He added though that Indian courts do not feel inclined to copy American precedents in this regard. In general, Indian courts are constitutionally obligated to ensure that delegation does not cross the line beyond which delegation amounts to abdication and self-effacement.

This issue again came up for discussion in Gwalior Rayon Silk Manufacturing Company v The Assistant Commissioner of Sales, 1974. In this case, Justice Khanna reiterated that our constitution makers have entrusted the power of legislation to the representatives of the people, so that the said power may be exercised by the people speaking through their representatives. The rule against excessive delegation of the legislative authority flows from and is a necessary postulate of the sovereignty of the people.

As a result of these and other pronouncements, what is referred to as the doctrine of excessive legislation has come into being. Now it is a well-established principle of law in India that while delegating legislative power, the legislature must lay down legislative policy, standards, or guidelines for the delegate to follow.

The American and Indian doctrines though practically similar are based on different theoretical premises- The American doctrine is based on the theory of separation of powers between the legislature and the executive, while the Indian doctrine is based on the theory of constitutional trust in the legislature to uphold the sovereignty of the people.

An example of the invalidation of a law on the ground of excessive delegation of legislation is Harakchand Ratanchand Banthia v Union of India, 1970 case. As per the provisions of the Gold Control Act, of 1968, the Gold Administrator was empowered to regulate the manufacture, distribution, use, disposal, consumption, etc of gold. The Supreme Court characterized the powers conferred on the Gold Administrator as being legislative in nature and declared it invalid for being too wide and extensive.

Barring such blatant instances of ‘excessive delegation’, the Supreme Court has tended to adopt a more tolerant attitude whenever practical exigencies have been involved. In effect, as things stand today, the legislature in India does not seem to be much circumscribed by the judiciary in the matter of delegation. Legislations are rarely invalidated on the ground of excessive delegation. If there is a complete abdication of legislative power or excessive delegation or if there is total surrender or transfer by the legislature of its legislative functions to another body, then that is not permissible. There is no abdication or surrender of legislative power or excessive delegation so long as the legislature has expressed its will on a particular subject matter, indicated its policy and left the effectuation of the policy to the administration.