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.

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

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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

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

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or choosing of legislative policy and

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

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Only ancillary or subordinate legislativefunctions can be delegated.

 

Power of inclusion and exclusion

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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 .

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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

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

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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

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

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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.