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lawcochin: What is Social Contract Theory? The concept of so...

lawcochin: What is Social Contract Theory?
The concept of so...: What is Social Contract Theory?  The concept of social contract theory is that in the beginning man lived in the state of nature. They had...

What is Social Contract Theory? 
The concept of social contract theory is that in the beginning man lived in the state of nature. They had no government and there was no law to regulate them. There were hardships and oppression on the sections of the society. To overcome from these hardships they entered into two agreements which are:-
1.  “Pactum Unionis”;  and 2.  “Pactum Subjectionis”.
 By the first pact of unionis, people sought protection of their lives and property. As, a result of it a society was formed where people undertook to respect each other and live in peace and harmony. By the second pact of subjectionis, people united together and pledged to obey an authority and surrendered the whole or part of their freedom and rights to an authority. The authority guaranteed everyone protection of life, property and to a certain extent liberty. Thus, they must agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature and they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract. In other words, to ensure their escape from the State of Nature, they must both agree to live together under common laws, and create an enforcement mechanism for the social contract and the laws that constitute it. Thus, the authority or the government or the sovereign or the state came into being because of the two agreements.
Analysis of the theory of Social Contract by Thomas Hobbes
 Thomas Hobbes theory of Social Contract appeared for the first time in Leviathan published in the year 1651 during the Civil War in Britain. Thomas Hobbes’ legal theory is based on “Social contract”. According to him, prior to Social Contract, man lived in the State of Nature. Man’s life in the State of NATURE was one of fear and selfishness. Man lived in chaotic condition of constant fear. Life in the State of Nature was ‘solitary’, ‘poor’, ‘nasty’, ‘brutish’, and ‘short’.  Man has a natural desire for security and order. In order to secure self- protection and self-preservation, and to avoid misery and pain, man entered
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into a contract. This idea of self-preservation and self-protection are inherent in man’s nature and in order to achieve this, they voluntarily surrendered all their rights and freedoms to some authority by this contract who must command obedience. As a result of this contract, the mightiest authority is to protect and preserve their lives and property. This led to the emergence of the institution of the “ruler” or “monarch”, who shall be the absolute head. Subjects had no rights against the absolute authority or the sovereign and he is to be obeyed in all situations however bad or unworthy he might be. However, Hobbes placed moral obligations on the sovereign who shall be bound by natural law.  Hence, it can be deduced that, Hobbes was the supporter of absolutism. In the opinion of Hobbes, “law is dependent upon the sanction of the sovereign and the Government without sword are but words and of no strength to secure a man at all”. He therefore, reiterated that civil law is the real law because it is commanded and enforced by the sovereign. Thus, he upheld the principle of “Might is always Right”.
 Hobbes thus infers from his mechanistic theory of human nature that humans are necessarily and exclusively self-interested. All men pursue only what they perceive to be in their own individually considered best interests. They respond mechanistically by being drawn to that which they desire and repelled by that to which they are averse. In addition to being exclusively self-interested, Hobbes also argues that human beings are reasonable. They have in them the rational capacity to pursue their desires as efficiently and maximally as possible. From these premises of human nature, Hobbes goes on to construct a provocative and compelling argument for which they ought to be willing to submit themselves to political authority. He did this by imagining persons in a situation prior to the establishment of society, the State of Nature.
 Hobbes impels subjects to surrender all their rights and vest all liberties in the sovereign for preservation of peace, life and prosperity of the subjects. It is in this way the natural law became a moral guide or directive to the sovereign for preservation of the natural rights of the subjects. For Hobbes all law is dependent upon the sanction of the sovereign. All real law is civil law, the law commanded and
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enforced by the sovereign and are brought into the world for nothing else but to limit the natural liberty of particular men, in such a manner, as they might not hurt but to assist one another and join together against a common enemy. He advocated for an established order. Hence, Individualism, materialism, utilitarianism and absolutions are inter-woven in the theory of Hobbes.
Analysis of the theory of Social Contract by John Locke
 John Locke theory of Social Contract is different than that of Hobbes. According to him, man lived in the State of Nature, but his concept of the State of Nature is different as contemplated by Hobbesian theory. Locke’s view about the state of nature is not as miserable as that of Hobbes. It was reasonably good and enjoyable, but the property was not secure. He considered State of Nature as a “Golden Age”. It was a state of “peace, goodwill, mutual assistance, and preservation”. In that state of nature, men had all the rights which nature could give them. Locke justifies this by saying that in the State of Nature, the natural condition of mankind was a state of perfect and complete liberty to conduct one’s life as one best sees fit. It was free from the interference of others.  In that state of nature, all were equal and independent. This does not mean, however, that it was a state of license. It was one not free to do anything at all one pleases, or even anything that one judges to be in one’s interest. The State of Nature, although a state wherein there was no civil authority or government to punish people for transgressions against laws, was not a state without morality. The State of Nature was pre-political, but it was not pre- moral. Persons are assumed to be equal to one another in such a state, and therefore equally capable of discovering and being bound by the Law of Nature. So, the State of Nature was a ‘state of liberty’, where persons are free to pursue their own interests and plans, free from interference and, because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively peaceful.
 Property plays an essential role in Locke’s argument for civil government and the contract that establishes it. According to Locke, private property is created when a person mixes his labour with the raw materials of nature. Given the implications of the Law of Nature, there are limits as to how much property one can own: one is not
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allowed to take so more from nature than oneself can use, thereby leaving others without enough for themselves, because nature is given to all of mankind for its common subsistence.  One cannot take more than his own fair share. Property is the linchpin of Locke’s argument for the social contract and civil government because it is the protection of their property, including their property in their own bodies, that men seek when they decide to abandon the State of Nature.
 John Locke considered property in the State of Nature as insecure because of three conditions; they are:-  1. Absence of established law; 2. Absence of impartial Judge; and 3. Absence of natural power to execute natural laws.  Thus, man in the State of Nature felt need to protect their property and for the purpose of protection of their property, men entered into the “Social Contract”. Under the contract, man did not surrender all their rights to one single individual, but they surrendered only the right to preserve / maintain order and enforce the law of nature. The individual retained with them the other rights, i.e., right to life, liberty and estate because these rights were considered natural and inalienable rights of men.
 Having created a political society and government through their consent, men then gained three things which they lacked in the State of Nature: laws, judges to adjudicate laws, and the executive power necessary to enforce these laws. Each man therefore gives over the power to protect himself and punish transgressors of the Law of Nature to the government that he has created through the compact.
 According to Locke, the purpose of the Government and law is to uphold and protect the natural rights of men. So long as the Government fulfils this purpose, the laws given by it are valid and binding but, when it ceases to fulfil it, then the laws would have no validity and the Government can be thrown out of power. In Locke’s view, unlimited sovereignty is contrary to natural law.  Hence, John Locke advocated the principle of -“a state of liberty; not of license”. Locke advocated a state for the general good of people. He pleaded for a constitutionally limited government.
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 Locke, in fact made life, liberty and property, his three cardinal rights, which greatly dominated and influenced the Declaration of American Independence, 1776.
Analysis of the theory of Social Contract by Jean Jacques Rousseau
 Jean Jacques Rousseau was a French philosopher who gave a new interpretation to the theory of Social Contract in his work “The Social Contract” and “ Emile”. According to him, social contract is not a historical fact but a hypothetical construction of reason. Prior to the Social Contract, the life in the State of Nature was happy and there was equality among men. As time passed, however, humanity faced certain changes. As the overall population increased, the means by which people could satisfy their needs had to change. People slowly began to live together in small families, and then in small communities. Divisions of labour were introduced, both within and between families, and discoveries and inventions made life easier, giving rise to leisure time. Such leisure time inevitably led people to make comparisons between themselves and others, resulting in public values, leading to shame and envy, pride and contempt. Most importantly however, according to Rousseau, was the invention of private property, which constituted the pivotal moment in humanity’s evolution out of a simple, pure state into one, characterized by greed, competition, vanity, inequality, and vice. For Rousseau the invention of property constitutes humanity’s ‘fall from grace’ out of the State of Nature. For this purpose, they surrendered their rights not to a single individual but to the community as a whole which Rousseau termed as ‘general will’.
 According to Rousseau, the original ‘freedom, happiness, equality and liberty’ which existed in primitive societies prior to the social contract was lost in the modern civilisation. Through Social Contract, a new form of social organisation- the state was formed to assure and guarantee rights, liberties freedom and equality. The essence of the Rousseau’s theory of General Will is that State and Law were the product of General Will of the people. State and the Laws are made by it and if the government and laws do not conform to ‘general will’, they would be discarded. While the individual parts with his natural rights, in return he gets civil liberties such as freedom of speech, equality, assembly, etc.
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 The “General Will”, therefore, for all purposes, was the will of majority citizens to which blind obedience was to be given. The majority was accepted on the belief that majority view is right than minority view. Each individual is not subject to any other individual but to the ‘general will’ and to obey this is to obey himself. His sovereignty is infallible, indivisible, unrepresentable and illimitable.
 Thus, Rousseau favoured people’s sovereignty. His natural law theory is confined to the freedom and liberty of the individual. For him, State, law, sovereignty, general will, etc. are interchangeable terms. Rousseau’s theory inspired French and American revolutions and given impetus to nationalism. He based his theory of social contract on the principle of “Man is born free, but everywhere he is in chains”.
COMPARISION OF THE THEORY OF SOCIAL CONTRACT OF THOMAS HOBBES, JOHN LOCKE AND JEAN JACQUES ROUSSEAU
1. Hobbes asserts that without subjection to a common power of their rights and freedoms, men are necessarily at war. Locke and Rousseau, on the contrary, set forth the view that the state exists to preserve and protect the natural rights of its citizens. When governments fail in that task, citizens have the right and sometimes the duty to withdraw their support and even to rebel.  2. Hobbes view was that whatever the state does is just. All of society is a direct creation of the state, and a reflection of the will of the ruler. According to Locke, the only important role of the state is to ensure that justice is seen to be done. While Rousseau view is that the State must in all circumstance ensure freedom and liberty of individuals. 3. Hobbes theory of Social Contract supports absolute sovereign without giving any value to individuals, while Locke and Rousseau supports individual than the state or the government. 4. To Hobbes, the sovereign and the government are identical but Rousseau makes a distinction between the two. He rules out a representative form of government. But, Locke does not make any such distinction.
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5. Rousseau’s view of sovereignty was a compromise between the constitutionalism of Locke and absolutism of Hobbes.
CRITICAL APPREHENTION 1. Rousseau propounded that state, law and the government are interchangeable, but this in present senerio is different. Even though government can be overthrown but not the state. A state exists even there is no government. 2. Hobbes concept of absolutism is totally a vague concept in present scenario. Democracy is the need and examples may be taken from Burma and other nations. 3. According to Hobbes, the sovereign should have absolute authority. This is against the rule of law because absolute power in one authority brings arbitrariness. 4. Locke concept of State of nature is vague as any conflict with regard to property always leads to havoc in any society. Hence, there cannot be a society in peace if they have been conflict with regard to property. 5. Locke concept of laissez-faire is not of welfare oriented. Now in present scenario, every state undertake steps to form a welfare state.  

excessive delegation

EXCESSIVE DELIGATED LEGISLATION

INTRODUCTION

 In all democratic countries, an important segment of  administrative  process  is delegated  legislation. The great increase in delegated  legislation  in modern times is due  to several factors.

 Though law-making is the primary function of legislature, yet no country does the legislature monopolise  the entire legislative power; it shares the same with executive. No statute has been passed today by a legislature which does not confer some legislative power on the Administration.

DOCTRINE OF EXCESSIVE DELEGATION

 While accepting the proposition that delegated legislation is indispensable today, the question of control over this activity of the Administration becomes crucial. The question of control arises arises at two stages.

1.

 At source, when legislative  power is conferred on the Administration by the Legislature. In England, Parliament is regarded as supreme and so the courts cannot control Parliament in the matter of delegation of legislative power. But in USA, the situation is different because of the prevalence of doctrine of separation of power. Therefore the proposition that is followed here is that legislature ought not to delegate unlimited power to an administrative authority. The legislature should itself discharge the essential legislative functions, viz., to make and lay down the policy of statute, and that only the power to lay down details to effectuate that policy may be delegated.

he principle of excessive delegation has been laid down in

Panama and the same principle has been adopted in Indian as well.

In Panama Refining Co. v. Rya, The Plaintiffs sued to restrain the defendants, who were the federal officials from enforcing the regulations IV, V and VI prescribed by the Secretary of the Interior under Section 9(c) of the National Industrial Recovery Act as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under Commercial Clause. The section purports to authorize the President to pass a prohibitory law. In this case the delegation was held to be invalid since it

involved a very sweeping congressional delegation. The Supreme Court declared: “

 In view of the scope of the broad declaration, and of the nature of the few restrictions that are imposed, the discretion of President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country is virtually unfettered”.

The Court found no „standard‟ in the Act. The code

-making authority was held to confer an unconstitutionaldelegation of legislative power.

2.

After delegated legislation has been made by the concerned authority in exercise of thepower conferred as in (1.)Delegated legislation has come to stay as an important component of the modern administrativeprocess. The question today lies is not whether there should be delegated legislation or not, but isto ensure that power given to the Administration is exercised properly, under proper controls, sothat benefits of the institutions may be minimized. This leads to the important question of Judicial Control of Delegated legislation.

Nature and Scope

 It has been accepted that Parliament does not possess the legislative power as aninherent and original power. That power has been delegated to it by constitution. Parliament thuspossesses not a right that it can delegate by its sweet will, but a competence that the Constitutionobliges it to exercise itself. It cannot legally delegate its legislative functions to the executive.Such delegation would be unconstitutional. It is well settled that essential and primary legislative functions must be performed by the legislature itself and they cannot be delegated to the executive. Essential legislative functions consist of determination of legislative policy and its formulation as a rule of conduct. In other words, a legislature has to discharge the primary duty entrusted to it. Once theessential legislative powers are exercised by the legislature, all ancillary and incidental functionscan be delegated to the executive.

 In Great Britain, excessive delegations of parliamentarypowers are political concerns, in United States (and in India), they are primarily judicial.

Principles to determine excessive delegation

 The question whether there is excessive delegation or not, has to be examined inthe light of three broad principles:

1.

 Essential legislative functions to enact laws and to determine legislative policy cannot bedelegated

.2.

 In the context of modern conditions and complexity of situations, it is not possible for thelegislature to envisage in detail every possibility and make provisions for them. Thelegislature, therefore, has to delegate certain functions provided it lays down legislative.

3.

 If the power is conferred on the executive in a manner which is lawful and permissible,the delegation cannot be held to be excessive merely on the ground that the legislaturecould have made more detailed provisions.

Test to be applied by Courts

 In dealing with the challenge to the vires of any statute on the ground of excessivedelegation it is necessary to enquire whether the impugned delegation involved surrender of essential legislative function and whether the legislature has left enunciation of policy and principle to the delegate. If the reply is in the affirmative, there is excessive delegation but if it isin negative, the challenge must necessarily fail .A statute challenged on the ground of excessive delegation must be subjected to two tests:

1.Whether it delegates essential legislative function; and

 

2.Whether the legislature has enunciated its policy and principle for the guidance of the executive.

POSITION IN INDIA

 In India, in the matter of 

 In re: Delhi Laws ACT is a seminal case in the area of delegatedlegislation and majority of judges did play a creative role in evolving doctrine of excessive delegation and was in view that:It is essential that Parliament (and State Legislatures) should have power to delegate legislative power to the Executive.No doctrine of Separation of Powers prevails in India.

The Indian Parliament working under a written constitution cannot claim an unlimited freedom to delegate legislative power. One view, propounded by Fazl Ali, Das and Sastri,

JJ. Was to put the limit at “effacement or abdication” by the Legislature whi

ch means thatlegislature could delegate to any extent it likes as long as it retains its own legislativepower. The other view propounded by majority was that legislature ought not to delegate

its “essential legislative power” to an outside agency.

Mahaj

an J., took a stricter view, said, “

Parliament has no power to delegate its essentiallegislative functions to others, whether State legislature or executive authorities, except, of 

course, functions which really in their true nature are ministerial.”

Mukerjee J. took the view that, it cannot be said that an unlimited right of delegation is inherentin the legislative power itself and the legislature must retain in its own hands the essentiallegislative functions which consist in declaring the legislative policy and laying down thestandard which is to be enacted into a rule of law.

 The

Constitution… confers a power and imposes a duty on the legislature to make laws.

 It cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfarestate, it must necessarily delegate the working out of details to suit various aspect of situation.But there is a danger inherent in such delegation such as, it may not set down any standard forthe guidance of the executive, it may confer arbitrary power on the executive to change ormodify the policy laid down by it, without reserving any control over the subordinate legislation.It is for a Court to hold on a fair, generous and liberal construction of a impugned statute whethera legislature exceeded such limit.

Excessive delegation as ‘Abdication’

 Abdication means abandonment of sovereignty. When the legislature does notlegislate and entrusts that primary function to the executive or to an outside agency, there isabdication of legislative power. Abdication may be partial or total. The power to delegate is subject to the qualification that the legislature does not abdicate or efface itself by setting up aparallel legislature.

 But the delegation of legislative power need not necessarily amount to abdiction or complete effacement. What constitutes abdication and what class of cases are covered by that expression is always a question of fact and it cannot be defined nor a rule of universal application can be laid down.

 The legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of this essential function would amount to abdication of legislative powers in the eyes of law. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount of abdication.

OPERATION OF THE DOCTRINE OF EXCESSIVE DELEGATION

Powers and Duties of Courts

 The Founding Fathers of the Constitution have entrusted the power of legislation to the representatives of the people so that the power may be exercised not only in the name of 

 

the people but also by the people speaking through their representatives. The rule against excessive delegation thus flows from and is a necessary postulate of the sovereignty of the people. At the same time, however, it also cannot be overlooked that in view of multifarious activities of a modern welfare state, the legislature can hardly find time andexpertise to enter into matters of detail. Sub-ordinate legislation within a prescribed sphere is apractical necessity and pragmatic need of the day. Delegation of law making power is the dynamo of modern government. If legislative policy is enunciated by the legislature and astandard has been laid down, the Court will not interfere with the discretion to delegate non-essential functions to the executive. 

Court’s view on Excessive Delegation

 Challenge to the validity of enactments on the ground of delegated legislationoften enough presents problems which are not easy of solution. The recent history of judicialdecisions however shows that, there is a considerable divergence of opinion in the approach tothe question dealing with such a challenge. Where the Legislature provides and lays downprinciples underlying the provisions of a particular statute and also afford guidance for theimplementation of the said principles, it is open for the legislature to leave to actualimplementation to its chosen delegate.

 

Excessive Delegation and Constitutional objections

 

Delegation of power to the executive is of two kinds i.e. Legislative andExecutive. The grant of legislative power is challenged on the ground that of excessivedelegation whereas the grant of executive power may be challenged on the ground of its allegedviolation of the right to equality guaranteed by Art. 14 or violation of any rights guaranteedunder Art.19.The delegation of power is upheld once it is accordance to the policy and standardslaid down by the Courts.

 Excessive delegation of legislative power can be assailed under Article 14 of theConstitution as being capable of being used in a discriminatory manner. When the High CourtJudges (Conditions of Service) Act 1954 as amended in 1986 and 1988, which provided forrevised pensions for judges, left the discretion to fix the dates on which such amendments wereto come in force to the state governments, it was held that conferment of such power could actdiscriminatorily because every state government might fix a different date for that purpose thusmaking revised pensions applicable to the judges on different dates depending upon the state inwhich the High Court was located.

 The Supreme Court struck down the provisions of the Tamil Nadu PrivateEducational Institutions (Regulation) Act 1966, both on ground of excessive delegation as wellas violation of the Art. 14 of the Constitution as it did not contain adequate guidelines to theexecutive for the exercise of the delegated legislative power.

Conclusion

 Entrustment of legislative power without laying down policy is inconsistent with the basicconcept on which our constitutional scheme is founded. Our Constitution-makers have entrustedthe power to legislate to the elected representatives of the people, so that the power is exercisednot only in the name of the people, but by the people.

The rule against excessive delegation of legislative authority is a necessary postulate of the sovereignty of the people

. It is not claimed tobe nor intended to be a panacea against the shortcomings of public administration. Governanceof the State in manner determined by the people through their representatives being of theessence of our form of government, the plea that a substitute scheme for governance through

  delegates may be more effective is destructive of our political structure.

 ___________________________________________________________________________

The legislature provides the gun and prescribesthe target , but leaves to the executive the taskof pressing the trigger.



The legislature formulates the policy anddelegates to the executive the task of supplyingthe details. This type of legislation is known asSkelton legislation ,because the legislature makesthe law in the form of Skelton and it is theexecutive which provides flesh and blood to thisSkelton.

 

K

unj Behari Lal Butail v. State of H.P



The S.C held that the essential legislativefunctions , consisting of determination of 



or choosing of legislative policy and



formally enacting the policy into binding rulesof conduct cannot be delegated by thelegislature.



Only ancillary or subordinate legislativefunctions can be delegated.

 

Power of inclusion and exclusion



Some times the legislature makes the law , butthe power to bring the individuals ,institutions, or commodities within thepurview of the statute would be given to thegovernment .



The Act contains the criteria , standard orprinciples for the guidance of thegovernment. Other wise the delegation isliable to be struck down.

 

The power to modify the statute



When the legislature passes an Act, it may notforesee all the difficulties that may arise inimplementing it.



The power is there for given to the executiveto modify a statute to remove difficultieswhich may arise while implementing the Act.

 

I

mpermissible

D

elegation



Power to repeal a law is essentially alegislative function , and there fore, delegationof such power to the executive is excessivedelegation and is ultra vires.



Subject to the provisions of the constitution ,the parliament and the state legislature canenact law prospectively or retrospectively. Butthe power of giving an Act retrospective effectcannot be delegated.

 

delegated legislationin

DELEGATED LEGISLATION

DEFINITION

Delegated legislation means the exercise of legislative power by an agency which is subordinate to the legislative. It is a technique to relieve pressure on legislature's time so that it can concentrate on principle and formulation of policies.

Thus Delegated Legislations or Secondary Legislations, better known as Subordinate Legislations, includes legislations made by a person or a body other than the legislature. The power for creating such statutes are derived by the statute making authority (mostly Executive) from an Act which the Parliament/Legislative Assembly has enacted authorizing the authority to make such by-laws, rules, by-rules, regulations etc in order to help it in effective implementation of a primary legislation made by the Parliament/Legislative Assembly itself.

According to Sir John Salmond, “Subordinate legislation is that which proceeds from any authority other than the sovereign power and is, therefore, dependent continued existence and validity on some superior or supreme authority.”

According to Gordan Hewart, “law is made for establishment and regulation of society by an authority but some time these authorities delegate the decodation of law on an another authority this is known as delegated legislation.”

As stated in the Halsbury’s Laws of England

“When an instrument of legislative nature is made by an authority in exercise of power delegated or conferred by the legislature it is called “Subordinate legislation”.

The Committee on Delegated Legislation had pointed out that the expression ‘delegated legislation’ is used in two senses-

·         In one sense delegated legislation means the exercise of the power of the rule making, delegated to the executive by the legislature.

·         In the second sense, it means the output of the exercises of the power, viz., rules, regulations, orders, ordinances, etc. the expression is used here in both the senses. Where the emphasis is on the limits of constitutionality of exercise of such power, the term is used in the first sense; where the emphasis is on the concrete rules the term is employed in the second sense.

Prof Upendra Bakshi remarked-

“The situation in regard to delegated legislation, the volume of which the volume of which is immensely greater than that of usual legislation, is even more. The Indian parliament enacted from the period 1973 to 1977 a total of 302 laws; as against this total number of statutory orders and rules passed in the same period was approx. 2544.”

Justice P.B Mukherjee very well observed in this respect;

“Delegated legislation is an expression which covers a multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a provocation to the constitutional jurists. It is praised as a necessity and felt as inevitable in our world where social, economic, technological, psychological and administrative speed outstrips the spacious and placid traditional legislative ideals and processes. It is criticized as an abdication of power by legislators and an escape from the duty imposed on them by voters of democracy. In England the king lost the legislative power at Runnymede and parliament lost legislative at stampede that followed since to provide the government for the country through administration and bureaucracy.”

Prof. Wade and Phillips in their Book on Constitutional Law observed:

“The mass of details involved in the modern administration and the extension of the functions of the State to the economic and social sphere have rendered it essential for the Parliament to delegate to the Ministers the power to make statutory instruments.”

According to Prof. Cecill Carr-

“ Necessity of delegated legislation is so multitudinous that the statute book would not only be incomplete but misleading unless it be read along with the delegated legislation which amplifies and amend it.

According to Oxford Dictionary of Politics-

“Delegated (or secondary legislation) is law made by misters under powers given to them by parliamentary Act (primary legislation) in order to implement and administer the requirements of the Act. It has equal effect in Law. Although it can be challenged in courts on the grounds that specific pieces of delegated legislation are not properly based on the powers given by the Acts.”

Origin

The concept of delegated legislation began in England. The history is summed in the following paragraph.

Systematic parliamentary scrutiny of delegated legislation is a relatively modern phenomenon. In the early years of Confederation, parliamentary scrutiny consisted of addresses for papers whereby Parliament obtained the information it desired, and on which it could act if it chose to.  Perhaps this lack of regularized oversight was understandable since, as one expert put it, “with the exception of the wartime period 1914-19 it could not be said that before 1939 the scope of the activities of the federal government was such that Parliament lacked adequate time to act as a watch-dog of the executive.” This is not to say that the quantity of delegated legislation was low. Indeed, the number of regulations and orders was sufficiently large to warrant the publication in 1889 of The Consolidated Orders in Council of Canada, which ran to two volumes and 1,126 pages.  In 1914, Parliament passed the War Measures Act, 1914, one of the most extreme examples of a statute delegating legislative authority to Cabinet. This Act empowered the Governor in Council to proclaim a state of “real or apprehended war, invasion or insurrection” and “to make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection, deem necessary or advisable for the security, defence, peace, order and welfare of Canada”.  At the outbreak of World War II, again the volume of decisions that had to be made in a timely manner was considerable and as a result, Ministers, government departments, boards and crown agencies were given increasing authority to make regulatory decisions. It was during this period that a suggestion was first made that since the role of Parliament was to support and control the executive in order to keep it responsible, Orders in Council having a legislative effect should be regularly tabled in the House and referred to a parliamentary committee for scrutiny. 

The postwar years saw a growth in government and a steady escalation in the use of Orders in Council to regulate public affairs. Although the practice of tabling regulations continued after the War, there was much criticism of “government by Order in Council.” In 1950, Parliament adopted the Regulations Act, which decreed that all “orders, regulations and proclamations made or issued in the exercise of legislative powers delegated by Parliament” would be systematically and uniformly published and tabled in the House. While regulations and orders were then being examined by the Privy Council Office for uniformity and clarity, the Regulations Act did not contain any provision for holding the executive accountable to Parliament for the subordinate laws it had made.

In 1964, the Special Committee on Procedure and Organization recommended the establishment of a parliamentary committee to review regulations made as a result of delegated legislative power and to report to Parliament any regulations or instruments which the Committee believed exceeded the authority delegated by statute. However, no action was taken on this recommendation. In 1968, the Special Committee on Statutory Instruments was mandated to “report on procedures for the review of this House of instruments made in virtue of any statute of the Parliament of Canada”.  After an extensive examination of the Regulations Act and scrutiny procedures in other Commonwealth Parliaments, the Committee presented its Third Report in October 1969.  Reiterating the recommendation that a parliamentary committee be established to scrutinize delegated legislation, it also advocated many amendments to the Regulations Act and new procedures for the drafting and publication of regulations. In 1970, the government announced its proposed course of action to respond to the report: the replacement of the Regulations Act by the Statutory Instruments Act, new Cabinet directives for the drafting and publication of regulations, and amendments to the Standing Orders for the establishment of a scrutiny committee.  

The reasons for growth of delegated legislation

Many factors are responsible for the rapid growth of delegated legislation in every modern democratic state. The traditional theory ‘laissez-faire’ has been given up by every state and the old ‘police state’ has now become a ‘welfare state’. Because this radical change I the philosophy as to the role to be played by the state, its functions have increased. Consequently, delegated legislation has become essential and inventible. As American lawyer and statesman Root remarks- “The old doctrine of prohibiting the delegation of legislative powers has virtually retired from the field and given up the fight”.

According to the committee on ministers’ power the following factors are responsible for the rapid growth of delegated legislation.

(a) Pressure upon parliamentary time: The horizons of state activities are expanding. The bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature formulates the general policy – the skeleton and empowers the executive to fill in the details – thus giving flesh and blood to the skeleton so that it may live- by issuing necessary rules, regulation, bye-laws etc.

In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business. The Committee on Ministers’ powers has rightly observed: “The truth is, that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality and legislation which modern public opinion requires.”

(b) Technicality: Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. These matters are required to be handled by experts. Here, the legislative power may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs, electricity etc.

(c) Flexibility: Parliament cannot foresee all the contingencies while passing on enactment. To satisfy these demands of unforeseen situation some provisions are required to be made. A legislative amendment is a slow and cumbersome process. But by the device of delegated legislation the executive can meet the situation expeditiously, e.g. bank rate, police regulations, export and import, foreign exchange etc. Therefore, in a number of statutes a ‘removal of difficulty’ clause has been added empowering the administration to overcome such difficulties by exercising delegated power. This Henry VIII clause confers very wide powers

on the Government.

(d) Experiment: The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. As for example, in road traffic matters, an experiment may be conducted and in the light of its application necessary changes could be made. The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary and utilize the result of his investigation and experiments in the best possible way. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand, if they are found to be defective, the defects can be cured immediately.

(e) Emergency: In times of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient- indeed the only possible remedy. Therefore, in times of war and other national emergencies, the executive is vested with extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two world wars similarly in cases of epidemics, floods, inflation, economic depression etc. immediate remedial actions are necessary which may not be possible by lengthy legislative process and delegated legislation is the only convenient remedy.

(f) Complexity of modern administration: The complexity of modern administration and the expansion of the functions of the state to the economic and social sphere have rendered it is necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. In a country like Bangladesh, where control and regulation over private trade, business or property may be required to be imposed, it is necessary that the administration should be given ample power to implement such policy so that immediate action can be taken.

Therefore, there has been rapid growth of delegated legislation in all countries and it becomes indispensable in modern administrative era.

FORMS OF DELEGATED LEGISLATION

·         There are 5 forms of subordinate legislation:

1.      Executive – The rule making power under of the Statutes is conferred on the executive (i.e. the branch of the government that executes the laws or runs the administration).

2.      Judicial - The judiciary has powers to frame rules for the regulation of their procedures and administration.

3.      Municipal – Municipal bodies are delegated powers by the Act, which brings them into existence to frame rules, and by-laws for the area under their jurisdiction for carrying on various activities entrusted to them.

4.      Autonomous – The autonomous bodies, like Universities, are given power by the State to make rules and by-laws for their administration.

5.      Colonial – The laws of the countries which are not independent or which are under the control of some other State.

·         In India, Rules, Bye-rules, Regulations, Orders, Notified Orders, Notifications, Bye-laws and other Statutory instruments, all these denote Delegated Legislation.

Ø  Technical or after matters, which do not affect the policy of the legislation, are included in Regulations.

Ø  The general policy of the Act being specified in the primary statute, Rules specify the details of the Act.

Ø  Order asking a person to evacuate house, is an executive order whereas an order laying down prices of commodities is a legislative order.

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

·         We can make another classification of Delegated Legislations based on the purposes they serve as:

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: to specify class of cases or territory to which the Act along with its provisions applies.

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 hardships 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 term & 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, if overstepped it suffers challenge on the ground that it is not within the legislative intent of modification.

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 statute Acts: to issue interpretation      on various provision of the enabling Act.

·         There are certain areas where the Executive cannot exercise legislative authority in any statute enacted by the Legislature. Hence, yet another classification of Delegated Legislation is done as follows:

Permissible Delegated Legislations:

This type of delegations include those which Executive may exercise its power to legislate.

Impermissible Delegated      Legislations:
The following functions, on the other hand, cannot be delegated by the Legislature to the Executive

WHETHER NECESSARY EVIL?

ADVANTAGES

DISADVANTAGES

Saves limited time in Parliament; Allow rapid changes; MPs lack detailed or technical knowledge. E.g. Specific details in Abortion Act, Road Traffic detail Quick response to new developments, e.g. Foot and Mouth outbreaks. The Prevention of Terrorism (Temporary Provisions) Act allows the quick addition of new prohibited groups. Enables minor changes to statutes, e.g. Variations in sentences, approval of motor vehicle changes. Judicial review may be sought, by parties with locus standi, (i.e. Persons sufficiently affected by the legislation), so time is not wasted by Parliament considering them all. Withdrawal or amendment easy.

implies that Parliament has insufficient time to scrutinise it. Parliament is not reviewing legislation properly. Sub-delegation of powers a further problem (although not for EU statutory instruments), which causes complexity and confusion. Sheer volume causes complexity - it is impossible for anyone to keep abreast of all delegated legislation. Lack of publicity that is public participation, not known about by the public (and often lawyers). It is undemocratic as most regulations are made by civil servant or other unelected people, except for local authority bylaws made by elected councillors Henry VIII clauses can give power to delegated legislation or amend or repeal Acts of Parliament

Explanation –

Advantages

1) Relieve the workload of parliament

Within the short span of its life it has to pass a no of legislation and has to take up such intensive legislative work that it can hardly enact the provision of law in details. If it devotes its time in laying down minor and subsidiary detail of every legislation by making all the rules required under it, whole of its time would be consumed in dealing with a few acts only and it would not be able to cope with the growing needs of legislation.
It is expensive, cumbersome and time consuming to operate parliamentary process. The delegated authorities reside by experts are more appropriate to make law to meet the needs of the community as it saves a lot of time in Parliament because it gives the members a chance to create rapid change to small items. Sometimes only minor changes need to be changed to existing legislation, such as further clarification or fixing a typo, and delegated legislation makes minor changes simple.

2) Technical expertise
Modern society has become very complicated and technical, so that it is impossible for members of Parliament to have all knowledge needed to draw up laws on controlling technology, ensuring environmental safety, dealing with various industrial problems or operating complex taxation schemes and parking regulations which need local knowledge. Also, the parliament is not a forum which makes laws on technical and administrative details but is more concerned on social issue and rule of law. Therefore it is thought that it is better for parliament to debate the main principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of it. Thus delegated authorities with skills, experiences, and current knowledge are more appropriate to make law to address the technical and administrative details.

3) De-centralised decision making
 The local councils are more suited to consult with their constituents to devise the laws to meet local needs. Also, Parliament makes legislation to cover the broad principle whereas the delegated legislation body makes regulation to address local details.

4) Emergencies
- Since a bill must passes through 3 readings in parliament, therefore it is hardly for the parliament to make legislation to deal with emergencies. Delegated legislation makes passing a new and necessary law more quickly than traditional methods. In some cases, Parliament will not have the time to accurately develop of piece of legislation, and a quick creation and implementation is required for the safety of a nation. For example, The Prevention of Terrorism Act was created as a delegation legislation in the U.K. and this law made it possible to add new prohibited groups to the Terrorism Act.
 Therefore, it is more appropriate for delegated authorities to make regulation to deal with it.

5) Political purpose
A regulation can be made  without passing through 3 reading stages of parliament .Therefore it is used to evade the scrutiny of parliament, which known as "back-door".

Disadvantages of Delegated legislation

1)Undemocratic making law

Parliament members give unelected civil servants a great amount of power to pass laws on their behalf, and they do not need to disclose all the details of delegated legislation. Thus the approval of delegated legislation often falls on the desk of unelected civil servants that are appointed by people involved with primary legislation in Parliament.

-This allows non-elected people to make law.

-This is acceptable provided there is sufficient control but, as already seen; Parliament’s control is fairly limited.

Hence, it abrogating the democratic responsibility of a government

2) Complexity of the law
- Some of the regulations are made were too complex and were unclear that it lead to difficulty in understanding the law.

3) Accessibility and a lack of community awareness
There is a huge lack of publicity with all delegated legislation. Citizens are simply not told new laws, to the point where some lawyers are not aware of the new laws either. And, people unwittingly, therefore, often break the law. This goes back to the volume of delegated legislation that passes the desks of civil servants and other unelected officials.

4) Another problem is that of sub-delegation.

This means that the law making authority is handed down another level. Sub delegation causes comments that much of our law is made by civil servants and are just ‘rubber stamped’ by the elected Ministers

5)Scrutinized for Quick Decisions

Delegated legislation also has disadvantages. It implies that Parliament does not have enough time to properly review and scrutinize a new piece of legislation and is only approving things to move on with their workload. The sheer volume of delegated legislation is also a concern because laws can get passed without anyone paying much close attention.

Conclusion

·         There are clear advantages, such as saving time, and disadvantages, such as legality and potential abuse of the delegated legislative system. Members of the British Parliament argue that it is a necessary evil to have delegated legislation in order to keep Parliament moving and solving the most pressing problems.

DELEGATED LEGISLATION IN INDIA

PRE AND POST CONSTITUTION

·         Introduction:

According to the traditional theory, the function of the executive is to administer the law enacted by the legislature, and in the ideal state the legislative powers must be exercised exclusively by the legislature who are directly responsible to the electorate. Apart from the pure administrative function executive also performs legislative and the judicial function also. In England theoretically it is only parliament, which can make laws. Even in the United States of America where the doctrine of the delegated legislation has not been accepted in principal, in practice the legislature has entrusted legislative powers to the executive. Administrative legislation met with a rapid growth after World War II and in India during 1973 to 1977.

·         History of Delegation of Powers:

1.      Pre – constitutional Position:

The history of delegation of powers can be traced from the charter stage of 1833 when the East India Company was regaining political influence in India. The of 1833 vested the legislative powers exclusively in Governor – General – in council, which was an executive body. He was empowered to make laws and regulations for repealing, amending or altering any laws or regulations, which were in force for all persons irrespective of their nationality.

In 1935 the Government of India Ac, 1935 was passed which contained an intensive scheme of delegation. The report of the committee on ministers’ powers was submitted and approved which fully established the case for delegation of powers and delegation of legislation was regarded as inevitable in India.

1.      Present Position:

Though, our constitution was based on the principal of separation of powers, a complete separation of powers was not possible hence it maintained the sanctity of the doctrine in the modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other hand there are several provisions where the executive has been granted the legislative powers. For example the legislative powers of the president under the Indian Constitution are conspicuous. Under Article 123 the president has the power to promulgate the ordinances and unrestricted power to frame regulations for peace progress and good government of the union territory under Article 240. The Supreme Court of India has also upheld the delegation of legislative powers by the legislative to the legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration Committee.

·         Delegation of Powers under the Indian Constitution:

The Legislature is quite competent to delegate to other authorities. To frame the rules to carry out the law made by it. In D. S. Gerewal v. The State of Punjab, K.N. Wanchoo, the then justice of the Hon’ble Supreme Court dealt in detail the powers of delegated legislation under the Article 312 of Indian Constitution. He observed:

“there is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature. The words “Parliament may by law provide” in Article 312 should not be read to mean that there is no scope for delegation in law made under Article 312….”

In the England, the parliament being supreme can delegated any amount of powers because ther is no restriction. On the other hand in America, like India, the Congress does nit possess uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Rayans, the supreme court of the United States had held that the Congress can delegate legislative powers to the Executive subject to the condition that it lays down the policies and establishes standards while leaving to the administrative authorities the making of subordinate rules within the prescribed limits.

CONTROLS AND SAFEGUARDS

I.PROCEDURAL CONTROL

Publication and consultation can be said to be the most essential parts of the mechanism of procedural control of delegated legislation. Publication becomes necessary as an incident to the maxim ignorantia juris non excusat.

A.      PUBLICATION

The English practice is to include the requirement of antecedent publication in individual enactment. The Rules Publication Act, 1893 contained provisions for the giving of notice and inviting representations from interested parties.

In India There is no such stature provision requiring publication of delegated legislation.

Section 23 of the General Clauses Act, 1897 requires that rules and bye-laws (in draft form) shall be published in the Gazette, objections and suggestions shall be invited and those objections and suggestions shall be also be taken into consideration by the authority entitled to make such rules and bye-laws The publication in the official gazette of a rule or bye laws purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.

Where the rules are to be published for the benefit of the local public, obviously what is expected is that the language of the notice would be a local language and the mode of publication in a local newspaper.

B.      CONSULTATION

The object of consultation with the parties interested in the subject manner of the delegated legislation is to bestow a democratic process in support of the rule-making. It is also taken as a safety measure against the misuse of legislative power by the executive authorities.

Through the English Statutory Instruments Act, 1946 did not give any provision for consultation various methods of public participation is common in England. The interested groups will be given sufficient opportunities to have their say in the proposed rules and regulations.

The government could avoid many pitfalls arising out of ignorance, through consultation.

The nature of consultation and the persons or bodies to be consulted would vary according to the objects of the enactments and the underlying policy of that legislation.

Prior consultation may also be made with persons or groups interested in the subject matter if the legislation. In the wider perspective the draft rules may be published in the official gazette and representations and suggestions may be invited from the general public. In rules involving specialized areas the suggestions and proposals may be received from those who are actually involved in such subject matter.

Compliance with natural justice:

All rules and bye laws should obey the principles of natural justice.

II.PARLIAMENTARY CONTROL

 The executive is authorized to legislate by virtue of the authority vested upon it by the legislature. Therefore it is the duty of the legislature to see that there is no objectionable, abusive or unwarranted use of the legislative power by the administration.

At the bill state:

 When a bill delegation of legislative power is introduced in the house of legislature, it shall be accompanied by a memorandum explaining such proposals and shoeing their scope. Such a step is required by the rules of procedure, as for instance the Lok Sabha Rules and the Rajya Sabha Rules. This will give the opportunity for the members to discuss the provisions of the bill involving delegation.

The Laying Procedure:

In India there is no general statutory provision requiring laying of the rules in the legislature. It would depend upon particular statutes. The Lok Sabha Committee on Subordinate Legislation has suggested to include provisions requiring laying procedure in all the enactments which do not contain such provisions. However in recent years more and more enactments are containing provisions for such laying before the house of legislature.

For this purpose, the procedure may take three forms

(i)                 Simple laying

(ii)               Subject to negative resolution

(iii)             Subject to affirmative resolution

a)                  Simple Laying: Usually the rules are laid before “each House of the legislature” as soon as may be “. Soon after the procedural requirement is satisfied the rule will come into effect.

b)                  Negative resolution: Another pattern of laying is to lay rules before the legislature and shall come into effect after the expiry of a particular period (usually thirty days) unless the rules are disapproved by a negative resolution.

c)                  Affirmative resolution: In the third pattern the draft rules are placed before the house and they shall have effect only if approved by an affirmative resolution of the House. This is not practiced in India.

III.JUDICIAL CONTROL

A.      PROCEDURAL ULTRA VIRES

When a delegated legislation is attacked as being procedurally ultra vires the courts first examine the statutory provisions prescribing the procedure to see whether it is mandatory or directory. The three most important procedural requirements are publication, consultation and laying before the legislature. Non-observance of a procedural mandate will lead to the rules being ultra vires. In such circumstances it may be called procedural ultra vires. Modern case law shows that courts are more and more inclined to require compliance of the procedural requirements.

B.      SUBSTANTIVE ULTRA VIRES

In a number of situations the validity of the delegated legislation can be tested substantively as distinct from procedural requirements. In some cases the parent legislation itself will be ultra vires and void.

1)      Constitutionality of delegated legislation:

Even if the parent Act is constitutional and valid the validity of delegated legislation under that statute can be tested. Theoretically it is based on the principle that a valid law cannot be expected to confer an unconstitutional – rule – making power upon the administrative agency.

2. Ultra vires the Parent act

The validity of delegated or subordinate legislation can be challenged on a number of grounds such as

(i)                 Exceeding power ; The delegate(administrative authority) has the rule making power by virtue of the enabling legislation .The area of operation is decided by the specific provision in that statute. The scope of the rules will further be guided by the “objects and purposes” of the statute.

(ii)               Conflict with enabling Act:

In theory it is easy to say that any rule made by the executive or administrative authority which is quite contrary to the provisions of the enabling act can be declared ultra vires and thereby invalid. But such cases are very rare.

(iii)             Contrary to the prescribed procedure: In Banwarilal Agarwalla v. State of Bihar( AIR 1961SC 849)  the Supreme Court pointed out that the requirement of consultation with the Mining Boards before framing regulations under the Mines Act was mandatory. Therefore a failure to do that will result in invalidating the regulations, Similarly in Raza  Buland sugar Co v.The Muncipal Board ,Rampur (AIR 1965SC 895)  the rules under the U.P Municipalities  Act were to be published in the draft form in the local Hindi dailies. Such previous publication was held to be mandatory. However it was pointed out that  a mere technical flawin the manner of publication would not render the rules invalid. As the Supreme Court  pointed out in this case, the question whether a particular requirement is mandatory or  merely directory cannot  be resolved by laying down any general rule and depends upon the facts of each case and the objects of the statute  in making the provision.

3. Mala Fides

In principle administrative rule- making can be challenged on the ground of Mala Fides in exercising the power of delegated legislation. But it will be extremely difficult to allege and prove the existence of mala fides.

4. Conflict with General Law

According to the principle of administrative law in England subordinate legislation can be challenged on this ground only when the enabling Act had not granted the power to override statute law. In India also it has been held that a power of repeal or amendment of statute  law cannot be provided  by delegated legislation.

IV.UNREASONABLENESS, ARBITARARINESS AND DISCRIMINATION

Unreasonableness, arbitrariness and discriminations are new grounds which are being developed in recent years for challenging the validity of administrative rule –making power and the rules made thereunder. The presumption of constitutionality, competence and reasonableness attach to delegated legislation also and the petitioner challenging their validity has to prove their absence. As a general rule the House of Lords had held that a ministerial regulation could be held void on the ground of vagueness, ambiguity, arbitrariness, uncertainty, unreasonableness and bad faith.

DELEGATED LEGISLATION IN ENGLAND

In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament (or an Act of the Scottish Parliament, Northern Ireland Assembly or National Assembly for Wales). Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on  Minister or another person or body. Several thousand pieces of delegated legislation are made each year, compared with only a few dozen Acts of Parliament.^[1]

Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow, technical matters (such as fixing the date on which an Act of Parliament will come into force, or setting the level of fees payable for a public service, e.g. the issue of a passport), to filling in the detail of how an Act setting out broad principles will be implemented in practice.

·         Delegated Legislations, in English Legal System, are clearly divided into:

1.         Orders in Council are made by the Queen on the advice of the Privy Council (i.e. the Government). Orders in Council are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance (such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers)

2.         Orders of Council are made by the Lords of the Privy Council in their own right. These most commonly relate to the regulation of professional bodies and the higher education sector, over which the Privy Council exercises a supervisory function.

3.         Ministerial Order made by Ministers of the Crown

4.         Orders are usually made by Ministers. An Order is an exercise of executive powers, for example to create or dissolve a public body. Commencement Orders are used to set the date on which an Act, or part of an Act, comes into force.

5.         Regulations are also usually made by Ministers. Regulations are the means by which substantive and detailed law is made, for example setting out in detail how an Act is to be implemented. Regulations made under the European Communities Act 1972 are the means by which the Government most often implements European law within the United Kingdom.

6.         Rules set out procedures, for example rules governing court procedures, or the way in which the Patent Office deals with applications. Rules may be made by Ministers or, if specified in the parent Act, a senior judge. In Scotland, rules of court are called Acts of Sederunt or Acts of Adjournal.

7.         Schemes: for example, schemes made by the Charity Commission to amended how a charity is governed.

8.         Directions are a means by which Ministers give legally binding instructions to a public body about the way it exercises its functions.

Byelaws are laws of limited application (usually restricted to certain places) made by local authorities or certain other bodies (for example, train operating companies or the National Trust for Places of Historic Interest or Natural Beauty) to control the activities of the people in public spaces, such as in public parks or on board public transport.

Making of delegated legislation

Delegated legislation is usually made by being signed by the person making it (or an authorised delegate of that person, for example a Senior Member of the Civil Service), although in the case of Orders in Council the verbal assent of the Queen is sufficient (however the fact that this has been given is recorded through the signature of the Clerk to the Privy Council).

Most delegated legislation is required (by the parent Act) to be made using a Statutory Instrument. This ensures that the legislation is catalogued and (apart from a few exceptions) published by the Queen's Printer, thereby making it available to the public as a whole.

However where delegated legislation is of only limited application (for example, most Directions and by-laws), and therefore not of general importance, the parent Act may not require that it be made using a Statutory Instrument. Instead, other provisions may be made for publishing the legislation. So, for example, an Order providing for the transfer of contracts from one National Health Service body to another may only be notified to the affected bodies,^[6] and by-laws made by a local council may be publicised through an announcement in local newspapers.^[7]

Layout of delegated legislation

Most delegated legislation will begin with a preamble which sets out who is making the legislation, the authority (precisely which sections of which Acts of Parliament) under which it is passed and, where appropriate, confirming that any pre-conditions required by the parent Act (for example, approval of a draft by each House of Parliament, or consultation with specified organisations) have been met.

What term is used to refer to the individual clauses of delegated legislation will depend on which type it is:

·         in Orders, Orders in Council and Orders of Council, each clause is called an article.

·         in Regulations, each clause is a regulation.

·         in Rules, each clause is a rule.

·         in Directions, and in the Schedules of Orders, Regulations and Rules, each clause is called a paragraph.

Clauses may be grouped under headings and in complex delegated legislation, the document may be divided into Parts. The main body of the delegated legislation may be followed by Schedules setting out even more detailed provisions.

There will also usually be an explanatory note describing, in summary form and using non-legal language, the purpose and scope of the legislation. The explanatory note is for convenience only and has no legal effect.

The Legislative and Regulatory Reform Act 2006

The Legislative and Regulatory Reform Act 2006 is an Act of the Parliament of the United Kingdom. It was enacted to replace the Regulatory Reform Act 2001.The Act was and remains very controversial, because of a perception that it is an Enabling Act substantially removing the ancient British constitutional restriction on the Executive introducing and altering laws without assent or scrutiny by Parliament, and it has been called the "Abolition of Parliament Act".

The Bill for this Act

The bill which became the Act was brought before the House of Commons of the United Kingdom in early 2006. As originally drafted, the Bill was controversial, as it would have granted government ministers wide powers to make secondary legislation that could amend, repeal or replace any primary legislation or secondary legislation (known as a Henry VIII clause). The government proposed numerous amendments to the Bill on 4 May 2006 and 10 May 2006, to address certain criticisms of the Bill's scope and lack of safeguards.

It received royal assent on 8 November 2006.

Part 1: Power to reform legislation.

The first Part of the Bill, entitled "Power to reform legislation", permits a government minister to make Statutory Instruments to reform legislation that is perceived to be "outdated, unnecessary or over-complicated ".

1.      Under clause 1 of the Bill, a minister can only make an order for two purposes: "reforming legislation" or "implementing recommendations" made by the Law Commission, the Scottish Law Commission or the Northern Ireland Law Commission, with or without changes.

2.     Before making an order, clause 3 of the Bill requires the relevant minister to be satisfied that a legislative change is required to secure the policy objective, that the proposed order is "proportionate", "strikes a fair balance" between the public interest and the interests of any persons adversely affected, does not remove any "necessary protection", and does not prevent anyone from exercising rights or freedoms that they "might reasonably expect to continue to exercise".

The Bill contains some express limitations.

1.Clause 5 prevents the Bill being used to "impose or increase taxation";

2. clause 6 prevents orders under the Bill being used to create any new criminal offence that is punishable by imprisonment for more than 2 years;

 3. clause 7 prevents the Bill being used to authorise any forcible entry, search or seizure, or compel the giving of evidence.

4. Clause 8 prevents orders being made in relation to matters within the legislative competence of the Scottish Parliament,

5. Clause 9 prevents orders being made to alter the functions of the Welsh Assembly without its prior consent.

Ministers are required to consult widely before making an order under the Bill, lay a draft of a proposed order before Parliament with an explanatory documents.

Criticism:

1.     Controversially, the order-making powers in the Bill are potentially very wide. Although, for example, the Bill (if it is enacted as drafted) cannot be used to introduce new taxes, there is no restriction on the Bill being used to amend itself; and the tests that a minister must satisfy before making an order are very subjective.

2.      An order would be subject to supervision by the High Court by way of judicial review, but it would be difficult to show that a minister was not "satisfied" that the requirements for making an order were met. In January 2006, the Bill was called "potentially one of the most constitutionally significant Bills that has come before the House for some time" by the House of Commons Select Committee on Regulatory Reform; while supporting the move to cut "red tape", the Committee asked for extra safeguards to avoid potential "abuse" of the powers in the Bill.

3.      The Bill has been criticised heavily in articles and correspondence published in the press. In The Times, journalist Daniel Finkelstein dubbed it the "Bill to End All Bills", and Liberal Democrat Member of ParliamentDavid Howarth called it the "Abolition of Parliament Bill".[4] When the Green Party passed a motion at their conference against the Bill, it was attacked as threatening to shatter the foundations of democracy.

4.      The Bill has also been criticised by legal professionals. The Law Society published a briefing note before its Second Reading, expressing concerns that safeguards were too weak, that secondary legislation should not be able to authorise further subordinate legislation, that the powers of non-Ministers acting under delegated powers were not restricted, and that there was no procedure for Parliament to challenge use of the Bill.

5.     An article in The Guardian compared the Bill to the Civil Contingencies Act 2004, saying that the Bill was presented as modernising measure but actually gave ministers arbitrary powers, taking "another chunk out of our centuries-old democracy".

6.      An article published in The Independent in June 2006 that analysed the last nine years of legal reform attacked the Prime Minister and his Government, claiming that the numerous changes and laws passed since it has been in power have reduced the power of democracy in the UK

{(IF NECESSARY)After the Bill completed its committee stage in the House of Commons, it was reported that the House of Commons Procedure Committee had complained that the Bill "tips the balance between the executive and Parliament too far in the Government's favour".}

{ A second report published by the House of Commons Select Committee on Public Administration on 20 April 2006 stated that, "As currently drafted, the Legislative and Regulatory Reform Bill gives the Government powers which are entirely disproportionate to its stated aims."}

In May 2006, the House of Lords Constitution Select Committee published a report which drew attention to a number of issues.

1.     The report criticised the manner in which the bill was introduced, commenting that the consultative process was "lamentable", that the bill was not debated on the floor of the House of Commons, as is long accepted practice for bills of first class constitutional importance, and that the late amendments, while welcome, were "something of an indictment of the processes of policy-making and legislation".

2.      The report also noted a repetition of the delegation of "unprecedentedly wide power" to ministers, and the further ability for ministers to change legislation to implement recommendations of the Law Commission. The report concluded that the bill, after amendment, was more balanced than before, but remained "over-broad and vaguely drawn", and further safeguards were necessary.

Support:

1.     The government minister responsible, Jim Murphy, said, "I give the House clear undertakings, which I shall repeat in Committee, that the orders will not be used to implement highly controversial reforms",[21] although there is no such restriction in the text of the Bill itself.

2.      Barrister Francis Bennion  wrote that "The Bill opens the door to much-needed reforms in what is called lawyer's law".

3.     In May 2006, a report from the House of Lords Select Committee on Delegated Powers and Regulatory Reform found that clause 1 of the bill was "not far different" from the power granted under the Regulatory Reform Act 2001, and so not inappropriate. While recognising the need for some limits to be imposed, for example, by specifying categories of person (such as local authorities) to whom powers could be delegated.

4.     The report found that the powers of Parliamentary supervision in the amended bill were adequate, but the ability for a minister to change the law to implement recommendations of Law Commission or to consolidate and simplify legislation were thought to be inappropriate, saying that "the statute law should be made by Parliament, not by Ministers".

Part 2: Regulators.

The second Part of the Bill, entitled "Regulators", implements recommendations of a review led by Philip Hampton, entitled "Reducing administrative burdens: effective inspection and enforcement

1.     Clause 19 contains two principles that regulators must have regard to when exercising particular regulatory functions: regulatory activities must be carried out in a way which is "transparent, accountable, proportionate and consistent", and should be targeted only at cases in which action is needed.

2.     Clause 20 and enables a minister to introduce a mandatory Code of Practice for regulators.

Part 3: European Community legislation.

The third Part of the Bill, entitled "Legislation Relating to the European Communities etc", makes provision about legislation relating to the European Communities, to reduce the number of UK Statutory Instruments required to transpose EU legislation into domestic UK law.

Section 33 - Commencement

This section provides that the Act came into force at the end of the period of two months that began on the date on which it was passed. The word "months" means calendar months. The day (that is to say, 8 November 2006) on which the Act was passed (that is to say, received royal assent) is included in the period of two months. This means that the Act came into force on 8 January 2007.

EXCESSIVE DELEGATED LEGISLATION

INTRODUCTION

 In all democratic countries, an important segment of administrative process is delegated legislation. The great increase in delegated legislation in modern times is due to several factors.

 Though law-making is the primary function of legislature, yet no country does the legislature monopolies the entire legislative power; it shares the same with executive. No statute has been passed today by a legislature which does not confer some legislative power on the Administration.

DOCTRINE OF EXCESSIVE DELEGATION

 While accepting the proposition that delegated legislation is indispensable today, the question of control over this activity of the Administration becomes crucial. The question of control arises at two stages.

1.

 At source, when legislative power is conferred on the Administration by the Legislature. In England, Parliament is regarded as supreme and so the courts cannot control Parliament in the matter of delegation of legislative power. But in USA, the situation is different because of the prevalence of doctrine of separation of power. Therefore the proposition that is followed here is that legislature ought not to delegate unlimited power to an administrative authority. The legislature should itself discharge the essential legislative functions, viz., to make and lay down the policy of statute, and that only the power to lay down details to effectuate that policy may be delegated.

The principle of excessive delegation has been laid down in

Panama and the same principle has been adopted in Indian as well.

In Panama Refining Co. v. Rya, The Plaintiffs sued to restrain the defendants, who were the federal officials from enforcing the regulations IV, V and VI prescribed by the Secretary of the Interior under Section 9(c) of the National Industrial Recovery Act as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under Commercial Clause. The section purports to authorize the President to pass a prohibitory law. In this case the delegation was held to be invalid since it involved a very sweeping congressional delegation. The Supreme Court declared: “ In view of the scope of the broad declaration, and of the nature of the few restrictions that are imposed, the discretion of President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country is virtually unfettered”.

The Court found no standard‟ in the Act. The code-making authority was held to confer an unconstitutional delegation of legislative power.

2.

After delegated  legislation has been made by the concerned authority in exercise of the power conferred as in

(1.)Delegated legislation has come to stay as an important component of the modern administrative process. The question today lies is not whether there should be delegated legislation or not, but is to ensure that power given to the Administration is exercised properly, under proper controls, so that benefits of the institutions may be minimized. This leads to the important question of Judicial Control of Delegated legislation.

Nature and Scope

 It has been accepted that Parliament does not possess the legislative power as an inherent and original power. That power has been delegated to it by constitution. Parliament thus possesses not a right that it can delegate by its sweet will, but a competence that the Constitution obliges it to exercise itself. It cannot legally delegate its legislative functions to the executive. Such delegation would be unconstitutional. It is well settled that essential and primary legislative functions must be performed by the legislature itself and they cannot be delegated to the executive. Essential legislative functions consist of determination of legislative policy and its formulation as a rule of conduct. In other words, a legislature has to discharge the primary duty entrusted to it. Once the essential legislative powers are exercised by the legislature, all ancillary and incidental functions can be delegated to the executive.

 In Great Britain, excessive delegations of parliamentary powers are political concerns, in United States (and in India), they are primarily judicial.

Principles to determine excessive delegation

 The question whether there is excessive delegation or not, has to be examined in the light of three broad principles:

1. Essential legislative functions to enact laws and to determine legislative policy cannot be delegated

.2. In the context of modern conditions and complexity of situations, it is not possible for the legislature to envisage in detail every possibility and make provisions for them. The legislature, therefore, has to delegate certain functions provided it lays down legislative.

3. If the power is conferred on the executive in a manner which is lawful and permissible, the delegation cannot be held to be excessive merely on the ground that the legislature could have made more detailed provisions.

Test to be applied by Courts

 In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is necessary to enquire whether the impugned delegation involved surrender of essential legislative function and whether the legislature has left enunciation of policy and principle to the delegate. If the reply is in the affirmative, there is excessive delegation but if it is in negative, the challenge must necessarily fail. A statute challenged on the ground of excessive delegation must be subjected to two tests:

1.Whether it delegates essential legislative function; and

2.Whether the legislature has enunciated its policy and principle for the guidance of the executive.

POSITION IN INDIA

 In India, in the matter of 

 In re: Delhi Laws ACT is a seminal case in the area of delegated legislation and majority of judges did play a creative role in evolving doctrine of excessive delegation and was in view that: It is essential that Parliament (and State Legislatures) should have power to delegate legislative power to the Executive. No doctrine of Separation of Powers prevails in India.

The Indian Parliament working under a written constitution cannot claim an unlimited freedom to delegate legislative power. One view, propounded by Fazl Ali, Das and Sastri. Was to put the limit at “effacement or abdication” by the Legislature which means that legislature could delegate to any extent it likes as long as it retains its own legislative power. The other view propounded by majority was that legislature ought not to delegate its “essential legislative power” to an outside agency.

Mahajan J., took a stricter view, said, “Parliament has no power to delegate its essential legislative functions to others, whether State legislature or executive authorities, except, of 

course, functions which really in their true nature are ministerial.”

Mukerjee J. took the view that, it cannot be said that an unlimited right of delegation is inherent in the legislative power itself and 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.

 The

Constitution… confers a power and imposes a duty on the legislature to make laws.

 It cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare state, it must necessarily delegate the working out of details to suit various aspect of situation.But there is a danger inherent in such delegation such as, it may not set down any standard for the guidance of the executive, it may confer arbitrary power on the executive to change or modify the policy laid down by it, without reserving any control over the subordinate legislation. It is for a Court to hold on a fair, generous and liberal construction of a impugned statute whether a legislature exceeded such limit.

Excessive delegation as ‘Abdication’

 Abdication means abandonment of sovereignty. When the legislature does not legislate and entrusts that primary function to the executive or to an outside agency, there is abdication of legislative power. Abdication may be partial or total. The power to delegate is subject to the qualification that the legislature does not abdicate or efface itself by setting up a parallel legislature.

 But the delegation of legislative power need not necessarily amount to abdiction or complete effacement. What constitutes abdication and what class of cases are covered by that expression is always a question of fact and it cannot be defined nor a rule of universal application can be laid down.

 The legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of this essential function would amount to abdication of legislative powers in the eyes of law. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount of abdication.

OPERATION OF THE DOCTRINE OF EXCESSIVE DELEGATION

Powers and Duties of Courts

 The Founding Fathers of the Constitution have entrusted the power of legislation to the representatives of the people so that the power may be exercised not only in the name of 

 

The people but also by the people speaking through their representatives. The rule against excessive delegation thus flows from and is a necessary postulate of the sovereignty of the people. At the same time, however, it also cannot be overlooked that in view of multifarious activities of a modern welfare state, the legislature can hardly find time and expertise to enter into matters of detail. Sub-ordinate legislation within a prescribed sphere is a practical necessity and pragmatic need of the day. Delegation of law making power is the dynamo of modern government. If legislative policy is enunciated by the legislature and a standard has been laid down, the Court will not interfere with the discretion to delegate non-essential functions to the executive. 

Court’s view on Excessive Delegation

 Challenge to the validity of enactments on the ground of delegated legislation often enough presents problems which are not easy of solution. The recent history of judicial decisions however shows that, there is a considerable divergence of opinion in the approach to the question dealing with such a challenge. Where the Legislature provides and lays down principles underlying the provisions of a particular statute and also afford guidance for the implementation of the said principles, it is open for the legislature to leave to actual implementation to its chosen delegate.

Excessive Delegation and Constitutional objections

 

Delegation of power to the executive is of two kinds i.e. Legislative and Executive. The grant of legislative power is challenged on the ground that of excessive delegation whereas the grant of executive power may be challenged on the ground of its alleged violation of the right to equality guaranteed by Art. 14 or violation of any rights guaranteed under Art.19.The delegation of power is upheld once it is accordance to the policy and standards laid down by the Courts.

 Excessive delegation of legislative power can be assailed under Article 14 of the Constitution as being capable of being used in a discriminatory manner. When the High Court Judges (Conditions of Service) Act 1954 as amended in 1986 and 1988, which provided for revised pensions for judges, left the discretion to fix the dates on which such amendments were to come in force to the state governments, it was held that conferment of such power could act discriminatorily because every state government might fix a different date for that purpose thus making revised pensions applicable to the judges on different dates depending upon the state in which the High Court was located.

 The Supreme Court struck down the provisions of the Tamil Nadu Private Educational Institutions (Regulation) Act 1966, both on ground of excessive delegation as well as violation of the Art. 14 of the Constitution as it did not contain adequate guidelines to the executive for the exercise of the delegated legislative power.

Conclusion

 Entrustment of legislative power without laying down policy is inconsistent with the basic concept on which our constitutional scheme is founded. Our Constitution-makers have entrusted the power to legislate to the elected representatives of the people, so that the power is exercised not only in the name of the people, but by the people.

The rule against excessive delegation of legislative authority is a necessary postulate of the sovereignty of the people

It is not claimed to be nor intended to be a panacea against the shortcomings of public administration. Governance of the State in manner determined by the people through their representatives being of the essence of our form of government, the plea that a substitute scheme for governance through

  delegates may be more effective is destructive of our political structure.

PERMISSIBLE AND IMPERMISSIBLE DELEGATED LEGISLATION

Ø  Permissible Delegated Legislations:

This type of delegations include those which Executive may exercise its power to legislate.

1.      Supplying       Details:
If the legislative policy is formulated by the legislature, the function of supplying details may be delegated to the executive for giving effect to the policy.

e.g. Section 3 of the All India Services Act, 1951 authorizes the Central Government to make rules to regulate conditions of service in the All India Services.

2.      Inclusion:
Sometimes, the legislature passes an Act and makes it applicable, in the first instance, to some areas and classes of persons, but empowers the Government to extend the provisions thereof to different territories, persons or commodities, etc.

e.g., the Transfer of Property Act, 1882 was made applicable to the whole of India except certain areas, but the Government was authorized to apply the provisions of the Act to those areas also.

3.      Exclusion:
There are some statutes which empower the Government to exempt from their operation certain persons, territories, commodities, etc.

e.g., Section 36 of the Payment of Bonus Act,
1965 empowers the Government to exempt any establishment or a class of establishments from the operation of the Act. Such provision introduces flexibility in the scheme of the
legislation. The Legislature which is burdened with heavy legislative work is unable to find time to consider in detail hardships and difficulties likely to result in enforcing the
legislation.

4.      Suspension:
Some statutes authorize the Government to suspend or relax the provisions contained therein.

 e.g. under Section 48(1) of the Tea Act, 1953, the Central Government is empowered under certain circumstances to suspend the operation of all or any of the provisions of the said Act.

5.      Application of existing          laws:
Some statutes confer the power on the executive to adopt and apply statutes existing in other States without modifications (with incidental changes) to a new area. There is no unconstitutional delegation in such cases, as the legislative policy is laid down in the statute by the competent legislature.

6.      Modification:
Sometimes, provision is made in the statute authorizing the executive to modify the existing statute before application. This is really a drastic power as it amounts to an amendment of the Act, which is a legislative function, but sometimes, this flexibility is necessary to deal with local conditions.

7.      Framing of      Rules:
A delegation of power to frame rules, bye-laws, regulations, etc. is not unconstitutional, provided that the rules, bye-laws and regulations are required to be laid before the legislature before they come into force and provided further that the legislature has power to amend, modify or repeal them.

8.      Henry VIII clause (Removal of difficulties):

Power is sometimes conferred on the Government to modify the provisions of the existing statutes for the purpose of removing difficulties. When the legislative passes an
Act, it cannot foresee all the difficulties which may arise in implementing it. The executive is, therefore, empowered to make necessary changes to remove such difficulties. Such provision is also necessary when the legislature extends a law to a new area or to an area where the socio-economic conditions are different.

It is nicknamed as the Henry VIII clause to indicate executive autocracy. Henry VIII was the King of England in the 16th century and during his regime he enforced his will and got his
difficulties removed by using instrumentality of a servile Parliament for the purpose of removing the difficulties that came in his way.

Ø  Impermissible Delegated      Legislations:
The following functions, on the other hand, cannot be delegated by the Legislature to the Executive:

1.      Essential         legislative       functions:
Even though there is no specific bar in the Constitution of India against the delegation of legislative power by the legislature to the executive, it is now well-settled that essential legislative functions cannot be delegated by the legislature to the executive. In other words, legislative policy must be laid down by the legislature itself and by entrusting this power to the executive, the legislature cannot create a parallel legislature.

2.      Repeal of        law:
Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the executive to repeal a law is excessive delegation and is ultra vires.

3.      Modification:
Power to modify the Act in its important aspects is an essential legislative function and, therefore, delegation of power to modify an Act without any limitation is not permissible.

4.      Exemption:
The aforesaid principle applies in case of exemption also, and the legislature cannot delegate the power of exemption to the executive without laying down the norms and policy for the guidance of the latter.

5.      Removal         of         difficulties:
Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a Henry VIII clause and thereby delegate essential legislative functions to the executive, which could not otherwise have been delegated.

6.      Retrospective operation:
The legislature has plenary power of law making and in India, Parliament can pass any law prospectively or retrospectively subject to the provisions of the Constitution. But this
principle cannot be applied in the case of delegated legislation.

7.      Future Acts:
The legislature can empower the executive to adopt and apply the laws existing in other States, but it cannot delegate the power by which the executive can adopt the laws which may be passed in future, as this is essentially a legislative function.

8.      Imposition      of        Taxes:
The power to impose a tax is essentially a legislative function. Under Article 265 of the Constitution no tax can be levied or collected save by authority of law, and here ‘law’ means law enacted by the competent legislature and not made by the executive.

9.      Ouster of         jurisdiction     of         courts:
The legislature cannot empower the executive by which the jurisdiction of courts may be ousted. This is a pure legislative function.

10.     Offences         and      Penalty:
The making of a particular act into an offence and prescribing punishment for it is an essential legislative function and cannot be delegated by the legislature to the executive.
However, if the legislature lays down the standards or principles to be followed by the executive in defining an offence and provides the limits of penalties, such delegation is
permissible.

The basic criteria for this is-

·         Legislature to lay down Guidelines for exercising Delegation-                                          The legislature while delegating such power is required to lay down the criteria or standard so as to enable the delegatee to act within the framework of the statute.

·         Delegation to be Reasonable and Not Unlimited

Justice Mukherjea, in his opinion, stated:"It cannot be said that an unlimited right of delegation is inherent in the legislative 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.

·         Delegatee not to Modify the Basic Legislation

·         As regard delegated power to "restrict and modify", it was held:"delegation cannot extend to the altering in essential particulars of laws which are already in force in the area in question." "The power to 'restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character.

·         Uncanalised and Uncontrollable Power not permissible under delegation

    The legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the       limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature.

·         Essential functions cannot be delegated

It was observed that it is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power, that the Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority, and that the primary duty of law making has to bedischarged by the legislature itself but delegation may be resorted to as asubsidiary or an ancillary measure.