LIMITS ON EXCESSIVE DELEGATED LEGISLATION MYTH OR REALITY

INTRODUCTION
Delegated Legislation, as the name itself suggests, means the delegation of the power of law making by the legislature to the other organs of the government. In India, there is separation of powers between the organs of the government but this separation is not in water tight compartments. Delegated Legislation in India is seen when the legislature, delegates some of the law making powers to the executive. The aim of the doctrine of separation of powers is to guard against tyrannical and arbitrary powers of the State. The rationale behind the doctrine is that, if all power is concentrated in one and the same organ, it would give rise to the danger that it may enact tyrannical laws, and also execute them in a despotic manner. In the face of the complex socio-economic problems demanding solution in a modern welfare state, it has been agreed by many legal scholars that the strict application of the separation theory is no longer possible to apply the nevertheless, it has not become completely redundant and its chief value lies in emphasizing the fact that it is absolutely essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it has been stated about the doctrine, “Its objective is the preservation of political safeguards against capricious exercise of power; and incidentally, it lays down lines of an effective division of functions. Its logic is the logic of popularity rather than strict classification….the great end of the theory is, by dispensing in some measure the centers of authority, to prevent absolutism.”
There are many reasons for the growth of delegated legislation. Primarily the reasons are that the old police state has now given way to a concept called the Welfare State. Due to this the Parliament faces a shortage a time, considering the huge number of legislations that it has to pass in order to satisfy the aspirations of the people. Also it is seen that the executive is better handled and prepared to look after the technicalities in the legislation. However the concept of delegated legislation is a very controversial subject, because it has been argued that the executive in many cases goes beyond the authority that has been vested to it. That is, the executive encroaches upon the powers of the legislature.
The paper in the following sections will look into the concept of delegated legislation, the landmark cases, the debate whether the concept of limits on excessive delegated legislation is a myth or a reality also the paper will look into the other grounds of challenge to a delegated legislation in brief, then in the Conclusion Part of the paper will deal with the personal opinion about the question raised.
Delegated Legislation : The Indian Context
The concept of Delegated Legislation in India can be broadly divided in two periods, the Pre Independence Era and the Post Constitution Era. The Pre Independence Era had many landmark cases which dealt with the concept of Delegated Legislation. The most important case in this regard is the case of,“R v Burah”. In this case the area of Garo Hills was removed from the jurisdiction of the civil and criminal courts. And by a notification, it was intimated that the Act XXII of 1869, gave the judicial powers to the Lieutenant Governor. This notification was challenged by the appellants in the Calcutta High Court. The Calcutta High Court upheld the contention of the appellants by a majority and observed that , “ Section 9 of the Act was ultra vires the powers of Indian Legislature and that the Indian Legislature was a delegate of the Imperial Parliament and, therefore further delegation was not possible”. This decision of the Calcutta High Court was appealed against and the Imperial Court, reversed its decision. It held that the Indian Legislature was not an agent of the Imperial Parliament and it had plenary powers of legislation as the Imperial Court itself. The imperial court also argued that the governor had no authority to pass new laws but he had the power only to extend the provisions upon the fulfilment of certain conditions, thereby it was only a case of conditional legislation.
Another important case is the case of, “Jatindra Nath Gupta v. Province of Bihar”. This case is important because it created the confusion about the extent of the delegation of legislative power. The confusion was so great that the president of India sought the opinion of the Supreme Court of India under Article 143 of the Constitution. In the case of Jatindra Nath, the issue that was raised was that whether the provincial government was authorised to extend the provisions of a Bihar Maintenance of Public Order Act by One year. The court in its majority opinion said that the function was an essential legislative function and thus it cannot be delegated to the executive. However one of the Judges gave a dissenting opinion, and said that the principle of extension of the act cannot be taken to equate as re enactment and as such, it merely accepted the extension period, which was contemplated by the legislature itself. Interestingly in the case of, “Sardar Inder Singh v. State of Rajasthan” the court upheld a opinion which was similar to the minority opinion of the Jitendra Nath Case. The Constitution of India didn’t provide a clear guidance on the point because there is no express provision in the constitution which would expressly prohibit or permit the delegation of legislative powers to the executive.
The Supreme Court in the case of, “In re Delhi Laws Act” for the first time sat down to discuss this issue of restriction of powers of delegated legislation. This case can be said to be one of the most important cases from the Post Constitution Era. From the very beginning it became clear that the court will have to find the restrictions on the basis of general principles of the constitution, rather than relying upon any specific provision in the constitution. The case was very interesting in the sense that all the seven judges comprising the bench, gave 7 different opinions in the case. However some important similarities emerged from their opinions, firstly, they agreed on the fact that, “keeping the exigencies of the modern government in view, the Parliament and the State Legislature in India need to delegate the legislative power, if they are to face the multitudinous problems facing the country, for it is neither practible nor feasible to expect that all the legislative bodies can turn out complete and comprehensive legislations on all the subjects sought to be legislated upon. Secondly, since the legislatures derive their powers from the constitution, they cannot be allowed the same freedom as the British Parliament in the matters of delegation, some limits have to be set on their capacity to delegate”. The point of difference among the judges arose, on the points of where to draw the line of delegation and what were the permissible contours within which an Indian Legislature could delegate its legislative power. The question of the extent on the limit of power of delegation arose again in further cases, but the case achieved two important ends. Firstly it legitimised the delegation of the legislative powers to the administrative organs, and secondly it very importantly imposed the outer limit on delegation by the legislature.
Excessive Delegation and the Judicial Limits
This is perhaps the most important part of the paper because this section will discuss the limits that have been imposed by the courts on the legislature’s power to delegate excessively. Also this section will also shed light into the question as to whether the limits on excessive delegation are a myth or reality. Hence the concept of excessive delegation will also be covered in the same section. The concept of excessive delegation is simple if the Judiciary feels that the extent of delegation of legislative powers has been violated, then that delegation of power will be held unconstitutional. Thus the Judiciary will play an active role in maintaining a check and balance on both the powers of the legislature to delegate and the power of the executive to legislate on the delegated subject. One of the major cases which dealt with the imposition of limits on excessive delegation is the “Gwalior Rayon” Case. The main issue that was raised in the case was that it was contented that the states legislatures, by not laying down the legislative policy, has abdicated its legislative function. All the five judges upheld the validity of the section but two of the judges gave dissenting opinions. The majority was of the opinion that when the legislature confers the power on an authority to legislate, it has to lay down policy, principle and standard for the guidance of the authority concerned. The test given by J Matthew, is known as the “Abdication Test” which postulates that as long as legislature, can repeal the parent act conferring the power to delegate, the legislature does not abdicate its powers. This postulation was refused to be accepted by the majority. The view of the majority was again reiterated in the case of, “Registrar, Co Operative Societies v K.Kunjabmu” where the court laid down the following theory, “... the legislature cannot delegate its essential legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out the policy.” So the primary test of checking whether the legislature has violated the authority allowed to it is to check whether it has abdicated the essential functions. Abdication in this sense simply means that the abandonment of sovereignty. Abdication thus can be total or partial. This issue was observed in the case of, “Avinder Singh v. State of Punjab”. The three broad principles which govern the question of excessive delegation are, First the Essential Legislative function to enact laws and to determine the legislative policy cannot be delegated. Second the Legislature has to delegate certain functions provided it has laid down legislative policy. And Third if the power has been conferred in a lawful manner, then it cannot be held that delegation is excessive merely on the ground that the legislature could have made more detailed provisions.
These principles are very important because they form the basis of the tests that the courts follow to decide any whether any statute can be challenged on the grounds of excessive delegation.

The two tests are * Whether it delegates essential legislative functions or not * Whether the legislature has enunciated its policy and principle for the guidance of the executive.
Thus these are the criteria to check whether any legislation can be challenged on the grounds of excessive delegation by the legislature.
These tests were applied in a variety of cases. The case of, “Hamdard Dawakhana v. Union of India” was probably the first case in which a central act was held to be unconstitutional on the grounds of excessive delegation. The court mentioned that the guiding principles in the case were unregulated and uncontrolled. In the case of, “B Shama Rao v. UT of Pondicherry” the court held that in by a majority opinion that there was total surrender abdication and effacement of the legislative power by the legislature. “State of Maharashtra v. Indian Medical Association” is a case where the court ruled that the granting of permission to a private management to establish a private medical college was a sovereign function which cannot be delegated to any other authority. “St. Johns Trainin

Grounds of challenge of the Delegated Legislation

This section is important because it discusses some of the other grounds on which delegated legislation can be challenged. That is, it can be not only challenged because it is deemed to be excessive, but also on the different other grounds.
Some Important grounds of challenge are * When the parent act is unconstitutional: This is one of the very important grounds, when it seen that the parent act is itself unconstitutional. Then it is automatically inferred that the delegated legislation will be held unconstitutional. * When the Delegated Legislation is Unconstitutional: This is another important ground on which delegated legislations are challenged. So the parent statute may be constitutional and yet it may happen that the delegated legislation itself may violate some provision of the constitution, in which case the legislation will be struck down. * Where the Delegated Legislation is Arbitrary: In this situation, if it is found that the legislation is Arbitrary, it will be struck down. It comes within Article 14 of the Indian Constitution. So it is checked whether the delegated legislation is violating Article 14 or not to determine its validity. “Air India v. Nergesh Meerza” is a landmark case on this issue.

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[ 1 ]. Jaffe and Nathanson , Administrative Law: Cases and Material, (1961) at p. 38
[ 2 ]. (1878) 3 AC 889: (1878) 5 IA 178(PC)
[ 3 ]. Empress v. Burah, ILR (1875-78) 3 Cal 64
[ 4 ]. AIR 1949 FC 175: 1949 FCR 595
[ 5 ]. AIR 1957 SC 510
[ 6 ]. AIR 1951 SC 332 : 1951 SCR 747
[ 7 ]. MP Jain, Principles Of Administrative Law (6th, Wadhwa and Nagpur, 2007) 64
[ 8 ]. Supra 6
[ 9 ]. (1974) 4 SCC 98 : AIR 1974 SC 1660
[ 10 ]. AIR 1980 SC 351 : 1980 1 SCC 340
[ 11 ]. Ibid
[ 12 ]. AIR 1979 SC 321
[ 13 ]. Harishankar Bagla v State of MP, AIR 1954 SC 465
[ 14 ]. AIR 1960 SC 554
[ 15 ]. AIR 1967 SC 1480
[ 16 ]. AIR 2002 SC 302
[ 17 ]. Chintamanrao v. State of MP, AIR 1951 SC 118
[ 18 ]. Narendra Kumar v. Union of India, AIR 1960 SC 430
[ 19 ]. AIR 1981 SC 1829