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Sunday, August 29, 2010

Constitution of India - Delegated Legislation

Delegated legislation
Growth of Administrative Process bulk of law comes from the administrators.  All law malking which takes place outside the legislature expressed as rules, regulations, bye laws, orders, schemes, directions or notifications etc.

Art. 13 (3) Defines law and it Includes ordinance, order, byelaw, rule, regulation & notification having the force of law.

In Sikkim v. Surendra Sharma (1994) 5 SCC282- ‘All Laws in force’ is sub clause (k) of Art. 371 F includes subordinate legislation.

Salmond defines law as that which proceeds from any authority other than the Sovereign power & is therefore, dependent for its continued existence & validity on some superior or supreme authority.

Central law to central or state or both subject to subject matter (appropriate Govt.)

eg: - Industrial disputer Act, 1947 center power of rule making on the “appropriate Govt.”

Difference between rules, regulation & byelaws:  Generally, the statutes provide for power to make rules where the general policy has been specified in the statute but the details have been left to be specified by the rules.

             Usually, technical or after matters, which do not affect the policy of the legislation, are included in regulations.

            Bye laws are usually matter or local importance, and the power to make byelaws is generally given to the local or self governing authority.

Orders: -         U/s 3 of Essential Commodities Act, 1955 is a general order as distinguished from executive order which is specific.

Order asking a person to evacuate house, is an executive order where as an order laying down prices of commodities is a legislative order.
All the terms are used interchangeably.

Need / Reasons for the growth of  Delegated Legislation: -
It can be traces down to 1539 when Henry VIII given wide power to legislate by proclamations.
Also the Socio- economic reforms and the developing nations made it necessary.
It is a Modern trend as the Parliament passes only a skeletal legislation.
Eg. : - Import & Export (Central) Act., 1947 – only 8 sections.

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.

Committee on Ministers power: - it concluded and recommended that administrative rule making is useful, inevitable & indispensable.
It has been stated in Cooley's Constitutional Limitations, Volume I at page 224 in these words :-
"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 intrusted 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."

The same learned author observes thus in his well-known book on Constitutional Law (4th Edition, page 138) :-
"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 intrusted 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."

Types of Delegated legislation : -
1.                  Power to bring an Act into operation eq: on rule date on the Govt. by notification in the Gazette. Example: on such date as the government by notification in the gazette. Because govt. has better knowledge of the practical exigencies of bringing the law into force.
            The Court Cannot Ask the Govt. to bring the law into force. It was held in A.K. Roy. v. UOI AIR 1982 SC 710 where the constitution of the Advisory Board was in question and the term qualified to be a High Court judge changed to actual or had been a High Court judge. National Security Act. 1980 did not have this provision it was held by the that the court cannot ask the Govt. to implement.

(II)       Conditional Legislation : - The legislation make the law but leaves it to the executive to bring the act into operation when conditions demanding such operation are obtained.
(a)                To bring an act into operation.
(b)               To extend the application of any act in force in one territory.
(c)                To extend or to except from the operation of an Act certain categories of subjects or territories.

Fact finding -   The element of delegation that is present relates not to any legislative function at all, but to the determination of a contingently or event, upon the happening of which the legislative provisions are made to operate.

The law is full & complete when it leaves the legislative chamber, but the operation of the law is made dependent upon the fulfillment of a condition & what is delegated to an outside body is the authority to determine, by the exercise of  its own judgment, whether or not the condition has been fulfilled 

The legislature cannot delegate its power to make a law; but it can make a law to delegate 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." [Locke's Appeal, 1873, 72 Pa. 491].
Queen V Burah 3 App. Cas. 889 laid down and later followed in King v. Benoari Lal Sarma [72 I.A. 57]  that “conditioned legislation is not to be a species of delegated legislation at all. It comes under a separate  category, and if in particular case all the element  of conditional legislation exist, the question does not arise as to    whether  in leaving the took of determining the condition to an outside authority, the legislative acted beyond the scope of its powers.
            The distinction between the two i.e. conditional & subordinate legislation is that of discretion.
Conditional legislation is fact-finding and subordinate legislation is discretionary.
Conditional legislation is a fiction developed by the U.S. Court to get away from the operation of the doctrine of separation of power

Putting it metaphorically by Subordinate Legislation the Gun powder is with the executive and by Conditional legislation Gun & Gun powder both are with the with by legislation & executive to pull the trigger.
Conditioned legislation contains no element of delegation of legislative power & is, therefore, not upon to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority & is, open to attack on the ground of excessive delegation

The case of Lachmi Narain v. UOI AIR1976SC714, 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 legislation.
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 AIR 1957 SC 510; 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 required.

Tulsipur Sugar Co. Ltd. v. Notified Area CommitteeAIR 1980 SC 882 ; 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 former.
K. S. E. Board v. Indian aluminum A.I.R. 1976 SC 1031, 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 legislation.

Delegated Legislation: -A portion of law-making power of the legislative is conferred or bestowed upon a subordinate authority. Rules & regulations which are to be framed by the latter constitutes an integral portion  of the statute itself.
            It is within power of parliament when legislating within its legislative few, to confer suborbital administrative & legislative powers upon some other authority.       
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 enactments provide for the powers for making rules, regulations, by-iaws 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.

Control of legislature on delegated legislation
While in the context of increasing complexity of law-making, subordinate legislation has become an important constituent element of legislation, it is equally important to see how this process of legislation by the executive under delegated powers, can be reconciled with .the democratic principles or
parliamentary control. Legislation is an inherent and inalienable right of Parliament and it has to be seen that this power is not usurped nor transgressed under the guise of what is called subordinate legislation. This has been discussed later under the heading “judicial control of 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. Burah The 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 powers.
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.

The Committee on Ministers Powers distinguished two type of parliamentary delegation, 1932 :

1.         Normal Delegation: -
            a)         Positive : - where the limits of delegation are clearly defined in                                the enabling Ad.
            b)         Negative: - does not include power to do certain thing (these are                 not allowed)
2.         Exceptional Delegation: -
            a)         Power to legislate on matters of principle (policy)
            b)         Power is amend Act of parliament (In re Delhi laws Acts )
                        (Henry VIII clause – indicate executive autocracy)

In  W.B. State Electricity Board v. Desh Bandhu Gosh (1958) 3 SCC 116 it was held that Regulation 34 of the West Bengal State Electricity Regulation which had authorized the Board to terminate the Service of any permanent employer on three months notice or pay in lieu there of. This hire & fire rules of regulation 34 is parallel to Henry VIII clause.

Similar position was held by the court in the case of Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly AIR1986SC1571 wherein rule 9 of the service rules of the CIWTC conferred power to terminate on similar lines as in the case of Desh Bandhu Ghosh the court went on to say that No apter description of Rule 9(i) can be given than to call it "the Henry VIII clause". It confers absolute and arbitrary power upon the Corporation and therefore invalid.

Constitutionality of Delegated Legislation

Position in the USA: -
Two phenomenons operate in the USA these are:
1.                  Separation of Power.
2.                  “Delegatus non potest delegare”.
Since congress was itself a delegate, how can it delegate its power.  
The framers of the American Constitution were imbued with the political theories propagated by John Locke and Montesquieu. Said John Locke, in his Civil Government, article 141 :
"The legislature cannot transfer the power of making laws to any other hands : for it being but a delegated power from the people, they who have it cannot pass it over to others."
According to Locke "the legislature neither must, nor can, transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Civil Government, Article 142). Montesquieu in his Esprit Des Lois developed this doctrine of separation of powers. While after 1688 England definitely departed from the rigid doctrine of separation of powers and has never come back to it, the framers of the American Constitution adopted the doctrine in its full force because, as explained by Professor Wills at page 168, "the fathers undoubtedly were so afraid of despotism and tyranny that they intended to establish a separation of the powers of government in order to prevent the exercise of all the powers of government by any single branch of government." Indeed, forty State Constitutions expressly provided for the separation of powers and it was only the remaining eight State Constitutions that, like the Federal Constitution, did not expressly create a separation of governmental powers, although they "vested" the powers separately in the three departments of government Reference may be made to the following provisions of the Federal Constitution :
Art. 1, section 1. All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.
Art. 2, section 1. The executive power shall be vested in a President of the United States of America.
Art. 3, section 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress many, from time to time, ordain and establish.
n view of this separate enumeration of the three powers and the vesting of each in separate bodies, the United States Supreme Court in Springer v. Government of Phillippine Islands [(1927) 277 U.S. 189; 72 L. Ed. 845] said that the separation of power" is implicit in all, as a conclusion logically following from the separation of the several departments." The correct position, as stated by Professor Willis at p. 134, is "that the doctrine of the separation of governmental powers is an American doctrine and an implied doctrine of the United States Constitution, and of those State Constitutions which do not expressly set it forth."
Alongside this doctrine of separation of powers the American constitutional law had another doctrine which also negatived the delegation of power. In Sutherland's Statutory Construction, 3rd Edn., Vol. 1, p. 56, we read that "incident to the separation-of-powers doctrine was the corollary that legislative power could not be exercised by any agency of the government save the legislature." The application of this corollary is thus explained by Willis at p. 137 :-
"The rule against the delegation of legislative powers, if there is such a rule, is broader than any doctrine of separation of powers. That part of its which forbids the delegation of powers to other branches or the government comes within the doctrine of separation of powers. That part of it which forbids the delegation of powers to independent boards or commissions rests upon the maxim delegata potestas non potest delegare."

In Panama Refining Co. v. Ryan [293 U.S. 388] Chief Justice Hughes very clearly stated "that the Congress manifestly is not permitted to abdicate or transfer to others the essential legislative functions with which it is invested." "In every case," the learned Chief Justice continued, "in which the question has been raised the court has recognised that there are limits of delegation which there is no constitutional authority to transcend..... We think that section 9(c) goes beyond those limits; as to transportation of oil production in excess of state permission the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited." Mr. Justice Cardozo differed from the majority view in this case and held that a reference express or implied to the policy of Congress as declared in section 1 was a sufficient definition of a standard to make the statute valid. "Discretion is not unconfined and vagrant" thus observed the learned Judge. "It is confined within banks that keep it from overflowing." 
            The constitution had never been regarded as denying to congress the necessary resources of flexibility & practicability, which would enable it to perform its function in laying down policies and establishing standard, while laving to administration. the making of subordinate  rules within prescribed limits.
It is interesting to note that in the later case of Schechter Poultry Corporation [295 U.S. 495], where the legislative power was held to be unconstitutionally delegated by the provision of section 3 of the National Industrial Recovery Act of 1933 as no definite standard was set up or indicated by the legislature, Cardozo J. agreed with the opinion of the Court and held that the delegated power of legislation which had found expression in that Code was not canalised within banks but was unconfined and vagrant. "Here in the case before us" thus observed the learned Judge, "is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. This is delegation running riot. No such plenitude of powers is capable of transfer". As said above, these are the only two cases up till now in which the statutes of Congress have been declared invalid because of delegation of essential legislative powers.  
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.

Wayman v. Southend [10 Wheat 1 U.S. 1825] the observations of Marshall C.J. that the line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made and power given to those who are to act under such general provision to fill up details, the author points out that the resulting judicial dilemma, when the American courts finally were squarely confronted with delegation cases, was resolved by the judicious choice of words to describe the word "delegated power". The authority transferred was, in Justice Holmes' felicitous phrase, "softened by a quasi", and the courts were thus able to grant the fact of delegated legislation and still to deny the name. This result is well put in Prof. Cushman's syllogism :
"Major premise : Legislative power cannot be constitutionally delegated by Congress.
Minor premise : It is essential that certain powers be delegated to administrative officers and regulatory commissions.
Conclusions : Therefore the powers thus delegated are not legislative powers. They are instead administrative or quasi-legislative powers."

Position in England   :In England the Parliament is Supreme , unhampered by any constitutional limitations with wide legislative powers on the executive.
Parliament being supreme and it power to legislate being unlimited, there is nothing to prevent Parliament from delegating its legislative power to the executive officers or other subordinate bodies. Sir Cecil Carr in this "Delegated Legislation" quoted in 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."
As observed by Sir Cecil Carr, "the truth is that if Parliament were not willing to delegate law-making 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.
Delegated legislation has been divided in the Donoughmore Committee's Report into two classes, (i) normal and (ii) exceptional. The normal type is said to have two distinguishable characteristics, one positive and the other negative. In the normal type of delegation the "positive characteristic is that the limits of the delegated power are defined so clearly by the enabling Act as to be made plainly known to Parliament, to the executive and to the public and to be readily enforceable by the judiciary." The negative characteristic is that the powers delegated are stated not to include the power to do certain things. The exceptional type of delegation has been classified by the Donoughmore Committee under four heads, namely -
(i) power to legislate on matters of principle and even to impose taxation;
(ii) power to amend Acts of Parliament, either the Act by which the powers are delegated or other Acts (nicknamed as Henry VIII clause);
(iii) power conferring so wide a discretion on a Minister, that it is almost impossible to know what limit Parliament did intend to impose;
(iv) instances where Parliament, without formally abandoning its normal practice of limiting delegated powers, has in effect done so by forbidding control of the Courts.

Committees on Ministers Powers observed that “The precise limits of l aw- making 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.

Position in India

Pre Independence:
Queen v. Burah wherein the Privy Council had validated only Conditional Legislation and therefore as per its reasoning delegated legislation is not permitted. 
the council of the Governor General of India for making laws and regulations was an Act to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Acts passed by any legislature in British India and provided that "no Act hereafter passed by the Council of the Governor-General for making laws and regulations shall be deemed to extend to any part of the said territory unless the same was specifically names therein". The administration of civil and criminal justice within the said territory was vested in such officers as the Lieutenant-Governor may from time to time appoint. Sections 8 and 9 of the said Act provided as follows :-
"Section 8. The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor-General, or of the said Lieutenant-Governor, for making laws and regulations, and may on making such extension direct by whom any powers of duties incident to the provisions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation."
"Section 9. The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India.
Every such notification shall specify the boundaries of the territories to which it applies."
The Lieutenant-Governor of Bengal issued a notification in exercise of the power conferred on him by section 9 and extended the provisions of the said Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the ordinary civil and criminal court. By a majority judgment the Calcutta High Court decided that the said notification had no legal force or effect. In the Calcutta High Court, Mr. Kennedy, counsel for the Crown, boldly claimed for the Indian Legislative Council the power to transfer legislative functions to the Lieutenant-Governor of Bengal and Markby J. framed the question for decision as follows : "Can the Legislature confer on the Lieutenant-Governor legislative power ?" Answer : "It is a general principle of law in India that any substantial delegation of legislative authority by the Legislature of this country is void."
Lord Selbourne after agreeing with the High Court that Act XXII of 1969 was within the legislative power of the Governor-General in Council, considered the limited question whether consistently with that view the 9th section of that Act ought nevertheless to be held void and of no effect. The Board noticed that the majority of the Judges of the Calcutta High Court based their decision on the view that the 9th section was not legislation but was a delegation of legislative power. They noticed that in the leading judgment of Markby J. the principle of agency was relied upon and the Indian Legislature seemed to be regarded an agent delegate, acting under a mandate from the Imperial Parliament. They rejected this view. They observed : "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. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions.
It was held that Indian legislators have plenary powers and it exercised the power in its own right and not as an agent or a delegate of the British parliament.
The privy council laid down that “ seeking of assistance of a subordinate agency in the framing of rules and regulations which are to become a part of the law and conferring on another body the essential legislative functions which under the constitution should be excerised by the legislature itself.  It also stated that the essential legislative function consists in the determination or choosing of the legislative policy and formally enacting that policy into binding rule of conduct. 
Also in King  v. Benoari Lal Sharma Conditional legislation was again applied by the privy council wherein the the validity of an emergency ordinance by the Governor-General of India was challenged inter alia on the ground that it provided for setting up of special criminal courts for particular kinds of offences, but the actual setting up of the courts was left to the Provincial Governments which were authorised to set them up at such time and place as they considered proper. The Judicial Committee held that "this is not delegated legislation at all. It is merely an example of the not uncommon legislative power by which the local application of the provisions of a statute is determined by the judgment of a local administrative body as to its necessity."

The privy council held that “Local application of the provision of a state is determined by the judgment of a local administrative body as to its necessity.”

Also the Federal Court in Jatindra nath v State of Bihar AIR 1949 FC 175 held that power of extension with modification is unconstitutional as legislative power cannot be delegated. Wherein the S. 1 (3) of Bihar maintenance of public order Act, 1948 was challenged – as it gave power of extension of modification to provincial Govt. but this case But created doubts on the limits of delegation.

 Post – Independence
The Delhi Laws Act, 1912, giving power to the Government to extend to Delhi and Ajmer-Marwar with such restrictions and modifications as it thought fit any law in force in any other part of India, was held intra vires- The case also discussed the validity of the law empowering the Government to extend to part C States any law in force in a part A state and to repeal existing laws-- It was held ultra vires
under article 143 of the Constitution asking the Court's opinion on the three questions submitted for its consideration and report. The three questions are as follows :-
"(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 ?"
2. Section 7 of the Delhi Laws Act, mentioned in the question, runs as follows :-
"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 ?"
3. Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows :-
"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 ?"
4. Section 2 of the Part C States (Laws) Act, 1950, runs as follows :-
"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.
The three sections referred to in the three questions are all in respect of what is described as the delegation of legislative power and the three particular Acts are selected to raise the question in respect of the three main stages in the constitutional development of India. The first covers the legislative powers of the Indian Legislature during the period prior to the Government of India Act, 1915. The second is in respect of its legislative power after the Government of India Act, 1935, as amended by the Indian Independence Act of 1947. The last is in respect of the power of the Indian Parliament under the present Constitution of 1950.
As regards constitution of the delegation of legislative powers the Indian Legislature cannot be in the same position as the prominent British Parliament and how far delegation is permissible has got to be ascertained in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said that an unlimited right of delegation is inherent in the legislature power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated in the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard laid down the courts cannot and should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. These, in my opinion, are the limits within which delegated legislation is constitutional provided of course the legislature is competent to deal with and legislate on the particular subject-matter. It is in the light of these principles that I propose to examine the constitutional validity of the three legislative provisions in respect to which the reference has been made.
The conclusion must therefore necessarily be that there is a rule against grant of essential legislative power but the rule was not violated in the present instance.
the word "restriction" the word "modification" has been employed also in a cognate sense and it does not involve any material or substantial alteration. The dictionary meaning of the expression "to modify" is to "tone down" or "to soften the rigidity of the thing" or "to make partial changes without any radical alteration." It would be quire reasonable to hold that the word "modification" in section 7 of the Delhi Laws Act means and signifies changes of such character as are necessary to make the statute which is sought to be extended suitable to the local conditions of the province. I do not think that the executive government is entitled to change the whole nature or policy underlying any particular Act or take different portions from different statutes and prepare what has been described before us as "amalgam" of several laws. The Attorney-General has very fairly admitted before us that these things would be beyond the scope of the section itself and if such changes are made, they would be invalid as contravening the provision of section 7 of the Delhi Law Act, though that is no reason for holding section 7 itself to be invalid on that ground.
The word "modification" occurring in section 7 of the Delhi Laws Act does not mean or involve any change of policy by 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, therefore there is no unwarrantable delegation of legislative powers in section 7 of the Delhi Laws Act.
The court made the following observations:
 Surrender of essential leg. fn would amount to abdication of legislative power in the eye of law
Court interfere if no guidance is discernable or if delegation amount to abdication
Limits of the power of delegation in India would have to be ascertained as a matter of construction from the provisions of the constitution itself.

Then there is the case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569 in which S.3(1)(f) of the Bihar & Orissa Act, Empowered the local administration to extend to Patna the provisions of any sections of the act ( Bengal Municipality Act, 1884) subject to such modification, as it might think fit.
The government picked up section 104 and after modifications applied it to the town of Patna.
One of the essential features of the Act was the provision that no municipality competent to tax could be thrust upon a locality without giving its inhabitants a chance of being heard and of being given as opportunity to object.
The sections which provided for an opportunity to object was excluded from the notification.
It was held as amounting to tamper with the policy of the Act.

In Lachmi Narain v. UOI (1976 2) SCC 95. where the validity of Section 2 of Union Territories (Laws) Act, 1950 and Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be determined. The issue was that whether notification issued by Central Government in purported exercise of its powers under Section 2 ultra vires of Central Government.
In the High Court: the validity of the withdrawal of the exemptions was challenged on these grounds" :
(1) The power given by Section 2 of the Laws Act to the Central Government to extend enactments in force in a State to a Union territory, with such restrictions and modifications, as it thinks fit, could be exercised only to make such modifications in the enactment as were necessary in view of the peculiar local conditions. The modification in Section 6(2) of the Bengal Act made by SRO 3908, dated October 7, 1957, was not necessitated by this reason. It was therefore, ultra vires Section 2 of the Laws Act.
(2) Such a modification could be made only once when the Bengal Act was extended to Delhi in 1951. No modification could be made after such extension.
(3) The modification could not change the policy of the legislature reflected in the Bengal Act. The impugned modification was contrary to it, and
(4) The modifications giving notice to withdrawn the exemptions and the notifications issued pursuant thereto withdrawing the exemptions from sales tax with respect to durries, ghee, (and other items relevant to these petitions) were void as the statutory notice of not less than three months as required by Section 6(2) prior to its modification by the impugned notification of December 7, 1957, had not been given.
28. Finding on all the four grounds in favour of the writ petitioners, the learned Single Judge declared
that the purported modification of Section 6(2) of the Bengal Finance (Sales Tax) Act, 1941, by the Government of India's notification No. SRO 3908, dated December 7, 1957, was ineffective and Section 6(2) continues to be the same as before as if it was not so modified at all.
In consequence, he quashed the government notifications Nos. GSR 964, dated June 16, 1966 and GSR 1061, dated June 29, 1966, because they were not in compliance with the requirement of Section 6(2) of the Bengal Act.
29. The contentions canvassed before the learned Single Judge were repeated before the appellate Bench of the High Court. The Bench did not pointedly examine the scope of the power of modification given to the Central Government by Section 2 of the Laws Act with specific reference to the purpose for which it was conferred and its precise limitations. It did not squarely dispel the reasoning of the learned Single Judge that the power of modification is an integral part of the power of extension and "cannot therefore be exercised except for the purpose of the extension".

In Supreme Court: contends that the power of modification given by Section 2 of the Laws Act, does not exhaust itself on first exercise; it can be exercised even subsequently if through oversight or otherwise, at the time of extension of the enactment, the Central Government fails to adapt or modify certain provisions of the extended enactment for bringing it in accord with local conditions. the reasoning of the appellate Bench of the High Court, that whatever infirmity may have existed in the impugned notification and the modification made thereby in Section 6(2), it was rectified and cured by Parliament when it passed the Amendment Act 20 of 1959. It is urged that the Bengal Act together with the modifications made by notifications, dated April 28, 1951 and December 7, 1957, must have been before Parliament when it considered and passed the Amendment Act of 1959. if in Section 6(2) the requirement as to "not less than three months' notice" was mandatory and a matter of legislative policy, then the exemptions from tax granted to durries, pure silk, etc. after the issue of the impugned notification must be treated non est and void ab initio, inasmuch as the amendments of the Second Schedule whereby those exemptions were granted, were made without complying with the requirement of "not less than three months' notice". It is argued that if this requirement was a since qua non for amendment of the Second Schedule, it could not be treated mandatory in one situation and directory in another. If it was mandatory then compliance with it would be absolutely necessary both for granting an exemption and withdrawing an exemption from tax. In this view of the matter, according to Shri B. Sen, the withdrawal of the exemption through the impugned notification was a mere formality; the notifications simply declared the withdrawal of something which did not exist in the eye of law. Appellants cannot, therefore, have any cause of grievance if the invalid and still-born exemptions were withdrawn by the question notifications.
Held by the SC: in regard to the argument that the power conferred by Section 2 of the Laws Act is a power of conditional legislation and not a power of 'delegated' legislation. In our opinion, no useful purpose will be served to pursue this line or argument because the distinction propounded between the two categories of legislative powers makes no difference, in principle. In either case, the person to whom the power is entrusted can do nothing beyond the limits which circumscribe the power; he has to act - to use the words of Lord Selbourne -"within the general scope of the affirmative words which give the power" and without violating any "express conditions or restrictions by which that power is limited". There is no magic in a name. Whether you call it the power of "conditional legislation" as Privy Council called it in Burah's case it also laid down that modification can be done as-the power does not exhaust itself on 1st exercise.  What it central Govt. fails to adapt or modify at the time of extension.
If at all any defect  crops up it can be cured by the amendment.
It will be clear that the primary power bestowed by the section on the Central Government, is one of extension, that is bringing into operation and effect, in a Union territory, an enactment already in force in a State. The discretion conferred by the section to make 'restrictions and modifications; in the enactment sought to be extended, is not a separate and independent power. It is an integral constituent of the powers of extension. It cannot be exercised apart from the power of extension. This is indubitably clear from the preposition "with" which immediately precedes the phrase 'such restrictions and modifications' and conjoins it to the principal clause of the section which gives the power of extension. According to the Shorter Oxford Dictionary, one meaning of the word "with", (which accords here with the context), is "part of the same whole".
60. The power given by Section 2 exhausts itself on extension of the enactment; it cannot be exercised repeatedly or subsequently to such extension. It can be exercised only once, simultaneously with the extension of the enactment. This is one dimension of the statutory limits which circumscribe the power. The second is that the power cannot be used for a purpose other than that of extension. In the exercise of this power, only such restrictions and modifications can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union territory. "Modifications" which are not necessary for, or ancillary and subservient to the purpose of extension, are not permissible. And, only such "modifications" can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local conditions of the Union territory for carrying it into operation and effect. In the context of the section, the words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature, of the enactment or the legislative policy built into it. This is the third dimension of the limits that circumscribe the power.
61. It is true that the word "such restrictions and modifications as it thinks fit", if construed literally and in isolation, appear to give unfettered power of amending and modifying the enactment sought to be extended. Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power. We must, therefore, confine the scope of the words "restrictions and modifications" to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union territory.
-                      Limits on power of modification.
i)                    At the time of extension only.
ii)                  Modification which is net necessary for extension cannot be done. 
iii)                Modification should not lead to change in the essential features the policy of the parent Act.
Therefore the order of 1957 transgressed the limits in two respects:
i)                    The power has not been exercised at the time of extension.
-                      It changed the essential feature
Brij Sunder v. First Addl. Distt. Judge AIR1989 SC 572 : in this case the the court allowed even the extension of future laws of another state to which the adopting state legislative never had the opportunity to exercise its mind.
5.3 of cantonments(Extension of Rent control Laws) Act, 1957 was challenged. Court stated that "The central Govt. may, be notification in the official Gazette, extend to any cantonment with such restrictions and modification as it think fit, any enactment relating to the control of rent and regulation of house accommodation which is in face on the date of notification which is in face on the date of notification in the state in which the containment is situated."
And as the date of notification-was deleted by the central Act, 1972 with retrospective effect. That makes it possible that by notification ever future enactments would automatically apply to the cantonment area.
SC held that cantonment areas in the state should be subject to the same tenancy legislation as in the other area, it fallows that even future amendments in such state legislative should because effective in cantonment areas as well.  

Abdication test: as developed in the case of Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. V. Asstt. C. S. T AIR 1974 SC 1660. It is that “So long as legislative can repeal the enabling Act, delegating law- making power, it does not abdicates must be considered as valid no matter how so ever Grad and general the delegation may be.
                        J. Mathew applied this test in N.K. Papiah V/s Excise Commr. Air 1975 SC 1007. in this case it was contended for the appellants that the power to fix the rate of excise duty conferred by Section 22 of the Mysore Excise Act of 1965 on the government was bad for the reason that it was an abdication by the State legislature of its essential legislative function. The court, speaking through Mathew, J. upheld the validity of Section 22. We are unable to appreciate that the constituent body can be restrained from doing what a legislature is free to do. We are therefore unable to accept the argument that Section 1(2) confers an uncontrolled power on the executive and is, by its unreasonableness, violative of Articles 14 and 19 of the Constitution

The power to levy tax is and essential legislative  function The constitution u/A 265 says
"No tax shall be livied or collected except by authority of law"
The legislature has to decide that How much to tax  and whom to tax .
The legislature cannot legislate on all aspect of taxation, some delegation in unavoidable
Object for Taxing
Not only to raise revenues for the state but also for regulating the  socio, economic or political structure of the country.
In the case of Avinder Singh v. Stare of Punjab (AIR 1979 SC 321)
Krishna Iyear – J laid down the test for valid delegation. The test goes as:
1-         The legislature cannot efface itself.
2-         It cannot delegable the plenary or the essential legislative functions.
3-         Even if there be delegation, Parliamentary control over delegations should be a living activity as a constitutional necessity.
He also stated that "While what constitute and essential legislative feature cannot be delineated in detail, it certainly cannot include a change of policy. The legislature is the master of legislative policy and if delegation is free to switch policy it may be usurpation of legislative power itself"
In this case Sec 90 (4) of the Punjab Municipal Corporation Act 1976 was under question as it required various municipalities to impose a tax of Re 1 per bottle of foreign liquor.
On the failure of the municipality to take action the govt. of Punjab imposed the same tax, the power to impose tax was challenged on the ground of excessive delegation.
"For the purpose of the Act" :- lay down sufficient guideline for the imposition of tax.
Sub - sec (3)   of S .90 :- rate of levy to be determined by the state Govt.
-           S. Sec (5) :-     State Govt. to notify the tax which the corporation shall levy.
                        These provisions show that the levy of tax shall be only for the purpose of the Act"
-           An expression which sets a ceiling on the total guideline that may be collected
-           And also comanlser the objects for which levies can be spent & :- It provides a sufficient guidelines.

In Darshan Lal Mehra v. UOI AIR 1992 SC 714 I the U.P. Nagar Mahapalika Adhniyam, 1959, S.2 was in question under taxing power was delegated to the Majapalika and it was contended that it is abdication of legislative function.
The court rejected this contention that since the act under which this power is given is having a statutory force as the state government has framed rules and the said rules are paid before the house and the legislature has the power to modify the rules and therefore it is not an abdication of legislative power.

In the case of Western Indian theatre, Ltd.  v. Cantonment Board Poona Cantonment AIR 1959 SC 582 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 discriminatory.

In the case of Delhi Municipal Corporation v. Birla Cotton Spinning Weaving. Mills AIR 1968 SC 1232 the power delegated to the corporation to impose electricity tax without prescribing any maximum limit was upheld on the ground that the corporation is also s representative and responsive   body which stands a guarantee against the misuse of the power. It also held that "The court is generally willing to upheld delegation of fiscal power in favour of elected bodies such as panchayats or municipalities"
The underlying factors were:
i)          Delegation was to a local body which was popularly elected.
ii)         The upper limit of the tax was deducible from the nature of its functions  
iii)        The body was subject to Govt. control.

In J.R.G. Manufactory Association v. UOI AIR 1970 SC 1589  S.12 (2) of the Rubber Act empowered the Rubber Board to levy an excise duty either on the producers of rubber or the infectors of rubber goods.  Which was challenged as excessive delegation of power. It was held that there is no excessive delegation. There are inherent checks on the exercise of such power, namely, the representative character of the Board and the control of the control Govt. 
The Act Provided that tax can be levied only according to the rules made by the Govt. subject to the laying procedure executive may be empowered to fix the rates of fixation :-

Devi Das v. State of Punjab (Air 1967 SC 1895) 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 invalid.

In S.B. Dayal V/s State of up (Air 1972 SC 1168) 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”

Therefore we can conclude that  
-           Taxing power is an essential legislative power.
-           It can be delegated once the legislature lags down the policy- sufficient guideline for the imposition of tax.  
-           it is sufficient guideline if the power is "for the purpose of the Act"
-           Wide expression like above are sufficient policy when power is delegation to a representative authority.

Legislative power can be validity delegated to exempt any item, bring certain item in the ambit of tax, determine the rate within the minimum & the maximum limit, even when limits are not prescribed it should be delegated to a representative body & should be subject to any control and if different rate of tax is imposed for different commodities then it must satisfy the test of reasonable classify.

Therefore we can see the phrase "No taxation without representation" being obliterated as  now vide taxing powers are given to the administrative. authorities.

1 comment:

  1. good comprehensive article...but recent growth after 1991 reforms is not included...stil very well compiled!



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