Project Admin Law

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UNIVERSITY OF PETROLEUM & ENERGY STUDIESCOLLEGE OF LEGAL STUDIES

B.A., LL.B. (HONS.)

SEMESTER VI

ACADEMIC YEAR: 2016-17

EXCESSIVE LEGISLATIVE FUNCTIONS AND THEPOLICY OF LAW

ADMINISTRATIVE LAW

Under the Super!"!#n #$ Dr% A!'(h)n *%P)th)n

+TO BE FILLED BY THE STUDENT,

NAME- PRASHANT SINGH

SAP NO-

.///01./2

ROLL NO- R3./045/1/


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Acknowledgement:-

I have taken eo!t" #n th#" $!o%ect. Howeve!, #t wo&ld not have 'een $o""#'le

w#tho&t the k#nd "&$$o!t and hel$ o man #nd#v#d&al" and th#" o!gan#*at#on. I wo&ld

l#ke to e+tend m "#nce!e thank" to all o them. I am h#ghl #nde'ted to !.

A*#mkhan B. athan o! h#" gdance and con"tant "&$e!v#"#on a" well a" o!

$!ov#d#ng nece""a! #no!mat#on !ega!d#ng the $!o%ect al"o o! h#" "&$$o!t #n

com$let#ng m $!o%ect /E67e""!e Le8!"9)t!e Fun7t!#n" )nd The p#9!7: #$

9);0.

thank" and a$$!ec#at#on" al"o go to m cla""mate" #n develo$#ng the $!o%ect and

$eo$le who have w#ll#ngl hel$ed me o&t w#th the#! a'#l#t#e".

I am al"o thank&l to the I2 e$a!tment o 34S and the l#'!a! a" well a" w#tho&t

them the mak#ng o th#" $!o%ect wo&ld have 'een ne+t to #m$o""#'le.

I am thank&l to and o!t&nate eno&gh to get con"tant enco&!agement, "&$$o!t and

gdance !om m $a!ent" and !#end" who hel$ed me #n "&cce""&ll com$let#ng

th#" $!o%ect.


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2a'le o content"1.)Introduction2.)Key Issues and Challenges

3.)Case Studies

4.)Conclusion

5.)Bibliography


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Int!od&ct#on

In attempting to improve policy and implementation it is tempting to rely too much on laws and

top-down policymaking. Controls on administrative, fiscal, and personnel systems can become

so strict that managers cannot manage and elected officials cannot get their programs

implemented. Discretion can be reduced to such a minimum that cases with any unusual aspects

take weeks and months to be resolved. The resulting inflexibility wastes resources and

opportunities, produces policies that are unresponsive to social realities thus eroding the

credibility of good-governance efforts!, and can increase incentives to corruption. There is a need

for policies that increase the space for debate and consultation, encourage innovation, and pursue

desired outcomes with positive incentives rather than through prohibitions alone. "rocedural

controls may generate massive amounts of information, but if it comes in forms that only other

officials can understand, or if it is generated predominantly by citi#ens$ giving information to

government rather than government opening up to citi#ens, transparency is not aided and peopleare unlikely to develop a personal stake in reforms. %emember that politics is a part of good

governance. The controversy and delay that often accompany open political debate may seem an

unaffordable luxury, or indeed a serious problem, in societies seeking to enhance the rule of law.

Too many reformers view governance primarily as a set of technical administrative tasks, and

public participation as either a pro forma exercise or a process to be orchestrated from above via

high-profile, but short-lived, mass campaigns. In either scenario citi#ens have little opportunity

or incentive to participate in any long-term way, or to link official promises to the problems of

their own communities. Civil society, where it exists, can and should help define the ends and

means of governance reform, benefit from its successes, and claim part of the credit for

initiatives that turn out well. &pen debate airing real differences, while engendering some

controversy, can elicit sustained participation' particularly if it has clear-cut effects upon the

decisions and policies eventually implemented. In both established and renewed democracies

citi#ens will be the final arbiters of what is, and is not, credible governance reform( thus it is

important to involve citi#ens and )*&s in the shaping of reform agendas from the start. There is

no doubt that governance reform re+uires lasting leadership and commitment from above, and

that identifying reform champions is an important early stage in providing such leadership. ut

such initiatives cannot be effective if they are confined to blue-ribbon commissions that hand

down proclamations, or to a one-man show model of reform. /ven though it takes time, effort,

and resources, and even though it will involve sharing the credit for improved governance, it isfar better to get out into communities, learn about popular concerns, and build a broad base of

support.


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5e I""&e" and 6hallenge"

Pay close attention to probles and contro!ersies" 0s suggested in the opening paragraph,

those issues can mobili#e popular energies and commitment far more effectively than can good

ideas alone. 1ithout those sorts of connections, citi#ens will see few links between the rule of

law, transparency, and accountability on the one hand, and the concrete problems of everyday

life, and they will not develop a sense that change for the better re+uires their own support,

participation, and compliance. %eform leaders who cannot demonstrate broad-based and deep

social support will find it all the more difficult to sway officials and interest groups skeptical

about, or openly opposed to, reform. 0ctively corrupt figures will take such a lack of support as

evidence that the reform movement will be short-lived'and often, they will be right. &ver time,

high-profile efforts that do not succeed will lead to public cynicism, and will make the next

round of reform even more challenging.

Paying close attention to incenti!es

*overnance reforms often emphasi#e public goods, such as efficiency, honesty, cultural empathy,

and the like, to the exclusion of private benefits. &ther kinds of appeals'that better governance

would cut taxes, make it easier to find 2obs in a revived economy, protect one$s family and

property'receive too little attention, even when the goal is enlisting the participation and

support of civil society. 0s a result, good-governance efforts encounter collective action

problems3 people decide that if reform improves governance for anyone it will do so for all, and

thus that their own efforts are inconse+uential or even unwanted. /xtensive efforts must be made

to persuade citi#ens, government functionaries, and political leaders that they stand to benefit

from reform'that is, to create the sort of sustaining stake in reform noted above. "ublic opinion

matters'in many ways. 0ll of this suggests that even in emerging democracies reformers ignore

public opinion at their peril. 4urveys and community meetings to identify what people believe

about the current state of affairs and expect of reform are essential. 4o are sustained efforts to

educate the public about key problems, the 2ustification for proposed changes, the costs of better

governance, and actual results. "ublic education can also change citi#ens$ conduct by

encouraging them to resist exploitation by officials or by other citi#ens, to file useful reports of

problems, and to obey new laws and procedures. Technical improvements to government

operations such as new budgetary and procurement procedures may be impressive. ut if people

do not think such measures will give them better police service or cut down on time lost indealing with bureaucrats, then key sources of support will have been lost. The public$s reform

criteria may well be achievable3 better road repairs, an end to demands for bribes by the police,

and fairer and more e+uitable tax assessments might be examples. 5oreover, success at those

levels can win support for more ambitious governance reforms, and the patience and tolerance

needed for them to take full effect. ut if reform leaders are not aware of what citi#ens think of

when they hear words like reform and good governance, credibility may +uickly be lost.


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4trengthen checks and balances. 1hile a measure of coordination among segments of

government is essential, it is only part of the picture. *overnment must also be able to check its

own excesses. The 2udiciary is essential to interpreting and enforcing new laws and standards,

and if it is not independent of the government of the day it will be ineffective. 4imilarly,

executive agencies re+uire oversight, and here legislative scrutiny and credible external

watchdogs can enhance effective policy implementation and check abuses. 0n ombudsman

system to which citi#ens can make complaints and reports may also be valuable, but citi#ens

must be confident that they will not face reprisals and that their reports will be taken seriously.

/ven then, in some societies citi#ens will resist filing reports for cultural or historical reasons!.

These sorts of oversights and controls must be active, consistent, and sustained( if invoked only

in emergencies or in the wake of failures they will be of little benefit. )ever underestimate

opposition to reform. 5any governance problems result from a shortage of resources or a lack of

state technical and political capacity. ut others persist because someone benefits from them, a

fact that reformers cannot ignore. 4erious reforms may encounter increasing resistance within

government, or from segments of the public, to the extent that they begin to gain traction( yet itwill be at precisely those points that active support from top leadership and from civil society

may be most important. Transparency and accountability problems are particularly likely to

persist because of vested interests in government and society, and reformers must be aware that

at times those resisting enhanced transparency and accountability will go through the motions'

filing reports, producing data, carrying out reviews and assessments'in ways that actually

conceal rather than revealing and attacking governance problems. 6ere too, outside monitors'

auditors, legislative oversight bodies, investigating 2udges'will be essential. Think in regional

terms. )eighboring societies and governments may well be coping with similar problems and

constraints, and may be finding ways to adapt rule of law, accountability, and transparency

mechanisms to new and complex situations. In addition, few of the problems good governance isintended to attack are contained within national boundaries. 4haring ideas, experiences, and

resources, coordinating rule-of-law functions on a regional basis, and peer review of governance

procedures can all contribute to reforms appropriate to social realities, and can make better use of

scarce resources.

Stay #ocused on the long ter

Too often governance reform is a short-lived issue. This is particularly the case following a crisis

or scandal( once matters settle down it is easy to conclude that all is well and governance

problems have been fixed. "articularly with respect to the rule of law and its social foundations,governance reform will take a generation or more, not 2ust a few months or years. 5uch the

same is true of transparency and accountability too, in the sense that agency, political elite, and

civil service cultures may need to be changed. 5ore rapid progress may be possible in those

areas to the extent that individuals can be replaced and the incentive systems of institutions

overhauled. /ven then, however, bureaucrats will need periodic retraining, elected officials will

need continuing information on governance problems and continuing incentives to fix them!,


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and citi#en support will be re+uired over the long term. 6ere too, public education will be an

integral part of any effort to deepen the rule of law, and to improve transparency and

accountability.


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6a"e St&d#e"

In India distinction of powers of a sovereign are classified under the 7egislative, /xecutive and

8udiciary. This distinction is blurred, as some would contend, when powers are delegated or sub-

delegated. 0fter independence, there was a lot of confusion regarding the concept of delegation

i.e. whether it is possible and if so, to what extent. To clarify this, the "resident of India referred

this +uestion to the apex court under 0rticle 9:; of the Constitution. The court laid down some

principles regarding these +uestions. The re Delhi 7aws 0ct is a landmark 2udgment of the <

8udge ench of the 4upreme Court wherein each 2udge had a difference of opinion. Therefore, an

analysis of the same would lead to a better understanding of the applicability of the concept of

delegated legislation in India.

During the middle of the 9=st century, 5ontes+uieu said,

There would be an end of everything where the same man or the same body, whether of the

nobles or of the people, to exercise those three powers, that of extracting law, that of executing

the public resolutions and of trying the causes of individuals.9

The theory of separation of powers signifies three formulations of structural classifications of

governmental powers3

• The same person should not form part of more than one of the three organs of the

*overnment. >or example3 ministers should not sit in "arliament

• &ne organ of the *overnment should not interfere with any other organ of the

*overnment.

• &ne organ of the *overnment should not exercise the function assigned to any other

organ.

The aim of this doctrine is to guard against tyrannical and arbitrary powers of the 4tate. The

rationale underlying the doctrine has been that, if all power is concentrated in one and the same

organ, there would arise the danger that it may enact tyrannical laws, execute them in a despotic

manner, and interpret them in an arbitrary fashion without any external control. Though in the

face of the complex socio-economic problems demanding solution in a modern welfare state, it

may no longer be possible to apply the separation theory strictly, nevertheless, it has not become

completely redundant and its chief value lies in emphasi#ing that it is essential to develop

ade+uate checks and balances to prevent administrative arbitrariness. Thus, it has been stated

about the doctrine3 Its ob2ective is the preservation of political safeguards against capricious

1 2hakke!.6.5., / Administrative Law” , (18), 4a"te!n Book 6o., $. 91


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exercise of power( and incidentally, it lays down lines of an effective division of functions. Its

logic is the logic of popularity rather than strict classification?.the great end of the theory is, by

dispensing in some measure the centers of authority, to prevent absolutism.@

In India, the doctrine of separation of powers has not been accorded a constitutional status. 0part

from the directive principle laid down in 0rticle AB which en2oins separation of 2udiciary fromthe executive, the constitutional scheme does not embody any formalistic and dogmatic division

of powers.;

The 4upreme Court in Ram Jawaya Kapoor v. State of Punjab4 , held,

In India, not only is there a functional overlapping but there is personal overlapping also. The

4upreme Court has the power to declare void, the laws passed by the legislature and the actions

taken by the executive if they violate any provision of the Constitution of the law passed by the

legislature in case of executive actions. /ven the power to amend the Constitution by the

"arliament is sub2ect to the scrutiny of the Court. The Court can declare any amendment void ifit changed the basic structure of the Constitution.A The president, in whom the executive

authority is vested, exercises law making power in the form of ordinance making power and also

2udicial power, by virtue of 0rticle 9B;9! and @9 S66 88@


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interaction. 5ontes+uieu himself never used the word separation. Therefore, not impassable

barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs

of the 4tate is the sole of the doctrine of separation of powers. 6ence the doctrine can be better

appreciated as a doctrine of checks and balances and in this sense administrative process is not

an antithesis of the doctrine of separation of powers.

Thus it reached the state where the legislature could not make the law in full to cope up with the

situation due to the interference of the state in the multiple facets of life. 0dmittedly, the

legislature in India lacks experience and expertise to make laws taken into account the present

and future re+uirement in a developing country. 0 law is made to suppress mischief and to

advance a remedy. The remedy should be beneficial for the society in future too. That technical

know-how and expertise can be attributed only to the executive wing of the *overnment.

Therefore, basically it was decided that by retaining the policy of law making with the

legislature, the details, the procedures and the method of implementation can be left to the

wisdom of the executive, authori#ing them to supply flesh and blood to the skeletal legislature

enacted by the legislature. This transfer of authority to make laws to the executive is generally

known as delegation of legislative power and the law thus made by the executive as delegated

legislation.

ut what are the limits within which the executive can exercise the authority conferred upon

them roadly speaking, it cannot be ultra-vires the Constitution and the parent 0ct made by the

legislature. The scope of delegation and the checks and balances to be exerted over the executive

was considered in detail by the honorable 4upreme Court of India when such a matter was

referred to the same under 0rticle 9:; of the Constitution by the "resident.

In the present era, it is abundantly clear that the shift to a welfare state has lead to an increase inthe administrative functions of the country. 0fter independence, there has been a lot of confusion

regarding the concept of delegation i.e. whether it is possible and if so, to what extent. To clarify

this, the "resident of India referred this +uestion to the apex court under 0rticle 9:; of the

Constitution. The court laid down some principles regarding these +uestions. The in re Delhi

Laws Act 7 is a landmark 2udgment of the < 8udge ench of the 4upreme Court wherein each

2udge had a difference of opinion.

$IS%&'( & %$* C+S*

To understand the present case better, we have to divide Indian era into basically three3 the preindependence, post independence and the post constitution.

; ade: Administrative Law, $.8@1

7 AI? 1@1 S6 998


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The authority regarding delegated legislation in the pre-independence period was primarily held

by ueen v. !urrah"# In this case, the 0ct in +uestion 0ct EEII of 9=F! deals with the

*overnor *eneral$s power to bring the 0ct in effect, determine what laws were to be applicable

and the power to extend application of provisions of the 0ct. 6ere an 0ct was passed by the

Indian legislature t remove *aro 6ills from the civil and criminal 2urisdiction of engal and

vested the powers of civil and criminal administration in an officer appointed by the 7t.

*overnor of engal. The 7t. *overnor was further authori#ed by 4.= of the 0ct to extend any

provision of this 0ct with incidental changes to Ghasi and 8aintia 6ills. &ne urah was tried for

murder by the Commissioner of Ghasi and 8aintia 6ills and was sentenced to death.

The +uestion was whether these functions would be categori#ed as delegated legislation. The

court held that the above mentioned powers were conferred only on the fulfillment of certain

conditions and hence this was conditional legislation, a concept all together different from

delegated legislation. The court also stated that It is a general principle of law in India that any

substantial delegation of legislative authority by the legislature of the country is void?..F. The

case thus lays down that substantive delegation i.e. delegation if the important functions are void

in India and that delegation, if at all possible would have to be conditional.

The three +uestions primarily dealt with whether a law in existence before the independence,

after independence or after the Constitution can be extended to another province or area by a

notification by the *overnment without legislative deliberation. 4pecifically, they are3The limits

of delegation were however not laid down in the above case. Hnder such circumstances

confusion arose in respect of the policy to be followed. India looked into the 0merican system,

where unlimited power cannot be delegated as a conse+uence of the doctrine of separation of

powers, or the /nglish concept where as much power as necessary can be delegated due to the

un+uestioned supremacy of the "arliament. It was left open to the courts to follow either one of

the models. Inade+uacies of these models lead the Indians to the Constitution in search of an

answer. ut even the Constitution was silent about this concept. It was in this under these

circumstances that the "resident of India under 0rticle 9:; of the Constitution asked the courts,

opinion on the three +uestions.

• 1as section < of the Delhi 7aws 0ct, 9F9@, or any of the provisions thereof and in what

particular or particulars or to what extent ultra vires the 7egislature which passed the said

0ct

4ection < of the Delhi 7aws 0ct, 9F9@, mentioned in the +uestion runs as follows3

< 1


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The "rovincial *overnment may, by notification in the official ga#ette, extend with such

restrictions and modifications as it thinks fit to the "rovince of Delhi or any part thereof, any

enactment which is in force in any part of ritish India at the date of such notification

• 1as the 02mer 5erwara /xtension of 7aws! 0ct, 9F:


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relaxed.99 They further added that the same was applicable in 0ustralia. Though its Constitution

is based on the separation of power doctrine, it does not stand in the way of delegation. The

ritish position was highlighted through %ew South )ales v.*ommonwealth'+ , It is well known

in all ritish communities( yet, except in the Hnited 4tates, nowhere it has been held that by

itself forbids delegation of legislative power?9; The situation in Canada has been highlighted

by the 2ustices by means of o$-e v. .he ueen'4. 6ere it was argued that the power conferred

by the Imperial "arliament on the local legislature should be exercised in full by that body and

by that body alone. The maxim $ele-ates non potest $ele-are was relied upon to support the

ob2ection.

In the Indian context, to explain the situation in the pre-independence period, they have relied on

Dicey$s comments. 0ccording to Dicey, the Indian 7egislatures are in short, within their own

sphere, copies of Imperial "arliament, they are within their own sphere sovereign bodies, but

their freedom of action is controlled by their subordination to the "arliament of the Hnited

Gingdom.

The trend has not shown much variation in the post-independence era, except for the fact that

once India became a free nation, it was no longer under the control of the parliament of H.G.

They further went on to say that in the first place, it seems +uite clear that the "rivy Council

never liked to commit themselves to the statement that delegated legislation was

permissible?.they were at pains to show that the provisions impugned before them were

instances of delegation of legislative authority, but they were instances of conditional

legislation9A which according to them the 7egislatures were competent to enact.

,-ICI+/ &PI0I&0S

, Kania

Chief 8ustice Gania, formed part of the minority along with 5aha2an, 8. The Chief 8ustice

declared that, whether sovereign or subordinate, the legislative authority can delegate if it stands

the three basic tests3

11 #$%$&ampton #r$ ' Co$ v. $!.D 87; 3.S. 9> (18 E1


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9!It must be a delegation in respect of a sub2ect or matter which is within the scope of the

legislative power of the body making the delegation.

@! 4uch power of delegation is not negatived by the instrument by which the legislative body is

created or established( and

;! It does not create another legislative body having the same powers and to discharge the same

functions which it has, if the creation of such a body is prohibited by the instrument which

establishes the legislative body itself.

1ith regard to the three +uestions he stated that3

>irstly, The "rovince of Delhi was carved out of the "rovince of "un2ab and was put under a

Chief Commissioner and by section @ of the Delhi 7aws 0ct the laws in force in the "un2ab

continued to be operative in the newly created "rovince of Delhi. The "rovince of Delhi had not

its legislative body and so far as this Chief Commissioner$s "rovince is concerned it is not

disputed that the power to legislate was with the *overnor- *eneral in Council in his legislative

capacity. 4ection < of the Delhi 7aws 0ct enables the *overnment executive! to extend by

notification with such restrictions and modifications as it thinks fit, to the "rovince of Delhi or

any part thereof, any enactment which is in force in any part of ritish India, at the date of such

notification, i.e., a law which was in force not necessarily in the "rovince of "un2ab only, from

which the "rovince of Delhi was carved out, but any Central or provincial law in force in any

"rovince

In his opinion, therefore, to the extent section < of the Delhi 7aws 0ct permits the Central

executive government to apply any law passed by a "rovincial legislature to the "rovince of

Delhi, the same is ultra vires the Central 7egislature. To that extent the Central 7egislature has

abdicated its functions and therefore the 0ct to the extent is invalid.6e further relies on the

landmark 2udgment of ueen v. !urrah'/ . 6e was of the opinion that as far as extension of the

laws passed by the Central 7egislature goes, the 0ct maybe said to be valid, relying on the above

mentioned precedent. . It has however, not considered whether the "rovince of Delhi re+uires the

rule of conduct laid down in those 0cts, as necessary or beneficial for the welfare of the people

of the "rovince or for its government. They are passed by other "rovincial legislatures according

to their needs and circumstances It may be noticed that the power to extend, mutatis mutandis,

the laws as contained in sections = and F of 0ct EEII of 9=F brings in the idea of adaptation by

modification, but so far only as it is necessary for the purpose.

Juestion @ relates to 02mer-5erwara /xtension of 7aws! 0ct. Till the *overnment of India 0ct,

9F9A, there was unitary government in India. y the 0ct of 9F9A, "rovincial legislatures were

given powers of legislation but there was no distribution of legislative powers between the

Centre and the "rovinces. That was brought about only by the *overnment of India 0ct, 9F;A.

1; S&$!a t. >


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4ection F: of that 0ct enumerates the Chief Commissioner$s "rovinces. They include the

"rovinces of Delhi and 02mer-5erwara. Hnder sections FF and 9BB there was a distribution of

legislative powers between "rovinces and Centre, but the word "rovince did not include a

Chief Commissioner$s "rovince and therefore the Central 7egislature was the only law-making

authority for the Chief Commissioner$s "rovinces. The 02mer-5erwara 0ct was passed under

the *overnment of India 0ct as adapted by the Indian Independence 0ct. 0lthough by that 0ct

the control of ritish "arliament over the *overnment of India and the Central 7egislature was

removed, the powers of the Central 7egislature were still as those found in the *overnment of

India 0ct, 9F;A. The Independence 0ct therefore made no difference on the +uestion whether the

power of delegation was contained in the legislative power. The result is that to the extent to

which section < of the Delhi 7aws 0ct is held ultra vires, section @ of the 02mer-5erwara 0ct,

9F:inally, with regard to the third +uestion, he states, 0rticle @: deals with the distribution of

legislative powers between the Centre and the 4tates but "art C 4tates are outside its operation.

Therefore on any sub2ect affecting "art C 4tates, "arliament is the sole and exclusive legislature

until it passes an 0ct creating a legislature or a Council in terms of article @:B. "roceeding on the

footing that a power of legislation does not carry with it the power of delegation, the +uestion is

whether section @ of the "art C 4tates 7aws! 0ct is valid or not. y that section the "arliament

has given power to the Central *overnment by notification to extend to any part of such 4tate

"art C 4tate!, with such restrictions and modifications as it thinks fit, any enactment which is in

force in "art 0 4tate at the date of the notification. The chief observed that the section although

framed on the lines of the Delhi 7aws 0ct and the 02mer-5erwara 0ct is restricted in its scope as

the executive government is empowered to extend only an 0ct which is in force in any of the

"art 0 4tates. >or the same reasons he considers certain parts of the two sections covered byJuestions 9 and @ ultra vires, that part of section @ of the "art C 4tates 7aws! 0ct, 9FAB, which

empowers the Central *overnment to extend laws passed by any 7egislature of "art 0 4tate, will

also be ultra vires. To the extent the Central 7egislature or "arliament has passed 0cts which are

applicable to "art 0 4tates, there can be no ob2ection to the Central *overnment extending, if

necessary, the operation of those 0cts to the "rovince of Delhi, because the "arliament is the

competent legislature for that "rovince. To the extent however the section permits the Central

*overnment to extend laws made by any legislature of "art 0 4tate to the "rovince of Delhi, the

section is ultra vires.

ahaan ,.

8ustice 5aha2an concurred with the views put forward by the Chief and along with the Chief

delivered the minority view in this particular case.

The first +uestion relates to section < of the Delhi 7aws 0ct, 9F9@, and concerns its validity in

whole or in part. The section gives a carte blanche to the *overnor *eneral to extend to the

newly formed province any enactment in force in any part of ritish India at the date of the


16/25

notification and not necessarily any enactment in force in ritish India at the date of the passing

of the Delhi 7aws 0ct. )o schedule was annexed to the 0ct of the enactments that were in force

in any part in ritish India at the date of the passing of the 0ct. 0s regards the enactments that

may be in force in any part of ritish India at the date of any notification, there was no knowing

what those laws would be. 7aws that were to be made after 9F9@, their principle and policy could

not be known to the legislature that enacted section < of the Delhi 7aws 0ct. 6e was of the view

that the legislature could neither have exercised its 2udgment, nor its discretion in respect of

those laws. It also conferred on the *overnor-*eneral power of modifying existing and future

enactments passed by different legislatures in the country. The power of modification implies

within it the power of amending those statutes. In the 8ustice$s opinion the section conferred a

kind of a vague, wide, vagrant and uncanalised authority on the *overnor- *eneral9rom his

analysis, it would thus seem that within the wide charter of delegated power given to the

executive by section < of the Delhi 7aws 0ct, it could exercise essential legislative functions and

in effect it became the legislature for Delhi. This section therefore, in his opinion, ultra vires the

Indian Councils 0ct, 9=9, in the following particulars3

i!In as much as it permits the executive to apply to Delhi laws enacted by legislatures not

competent to make laws for Delhi and which these legislatures may make within their own

legislative field, and

ii! In as much as it clothes the executive with co-extensive legislative authority in the matter of

modification of laws made by legislative bodies in India.

6e was however keen to note that had the 7egislature of the adopting country passed this

particular law, then it would be valid.

In answering the third +uestion, he has adopted a similar reasoning. 6e held that in this case

express power to repeal or amend laws already applicable in "art C 4tates has been conferred on

the Central *overnment. "ower to repeal or amend laws is a power which can only be exercised

by an authority that has the power to enact laws. It is a power co-ordinate and co-extensive with

the power of the legislature itself. In bestowing on the Central *overnment and clothing it with

the same capacity as is possessed by the legislature itself the "arliament has acted

unconstitutionally.The second +uestion concerns section @ of the 02mer-5erwara /xtension of

7aws! 0ct, 9F:


17/25

exclusive power of laying down their policies in respect to sub2ects within their own legislative

field. 1hat policy was to be adopted for Delhi, whether that adopted in the province of "un2ab or

of ombay, was left to the Central *overnment. The exercise of this power amounts to making a

new law by a body which was not in the contemplation of the Constitution and was not

authori#ed to enact any laws. . 6e thus answered this +uestion in the negative, because the policy

of those laws could never be determined by the law making body entrusted with making laws in

the present context for Delhi.

1ith these opinions, he held all three 0cts ultra vires.

%he inority !ie in the present case was expressed by the above two 2udges. The minority

based its view of the theory of legislative omnipotence of the ritish "arliament, and its

reflection in the 0ustralian, the Canadian and the Indian Constitutional systems, which includes

power to delegate legislative function, sub2ect to the condition of non-abdication. They were of

the view that the Constitution has never per se warranted delegation powers at any stage and

agreed on the view that legislature can however, conditionally legislate. In doing so it may, inaddition, lay down conditions, or state facts which on being fulfilled or ascertained according to

the decision of another body or the execution authority, the legislation may become applicable to

a particular area. This was described as conditional legislation.

al +li ,.

8ustice >a#l 0li has successfully delivered the most convincing argument in favour of delegation.

0long with the other 2udges, he ws of the opinion that delegation is in fact important, and his

2ustifications were based on the following lines.

It is a cardinal principle of our system of government that local affairs shall be managed by local

authorities and general affairs by the central authority. 4uch legislation is not regarded as a

transfer of general legislative power, but rather as the grant of the authority to prescribe local

regulations, according to immemorial practice, sub2ect, of course, to the interposition of the

superior in cases of necessity.9F 6e also noted that the 0ct in +uestion does not enact a new

law but merely transplants to the territory concerned, laws operative in other parts. 6e further

suggested that some safeguards should be implemented, such as a one year time period during

which the effectiveness of the delegated function can be 2udged. 6e was however of the opinion

that mere absence of the safeguard will not invalidate the said provision and it is thus intra

vires.The power delegated in the first instance, i.e. in the case of the Delhi 7aws 0ct, 9F9@ wasministerial in nature such delegation was neither unwarranted on principle nor without precedent.

1 e! C&lle! . #n !toutenburh v. &ennic-


18/25


19/25

concluded by stating that There can be no doubt that the powers which have been granted to the

*overnment are very extensive and the three 0cts go farther than any 0ct in /ngland or

0merica, but, in my 2udgment, notwithstanding the somewhat unusual features to which

reference has been made, the provisions in +uestion cannot be held to be invalid.

6is conclusions can be summed up as3

The legislature,

9. 5ust normally discharge its primary legislative function itself and not through others.

@. Can delegate and this power is ancillary to and necessary for the full and effective

exercise of its power of legislation

;. Cannot abdicate its legislative functions, and does not become a parallel legislature

u6heree ,.

The learned 2ustice commented that it will be noticed that in all the three items of legislation,

mentioned above, there has been, what may be described, as conferment by the legislatures,

which passed the respective enactments, to an outside authority, of some of the powers which the

legislative bodies themselves could exercise( and the authority in whose favour the delegation

has been made has not only been empowered to extend to particular areas the laws which are in

force in other parts of India but has also been given a right to introduce into such laws, any

restrictions or modifications as it thinks fit.

0s regards constitutionality of the delegation legislative powers, he commented that the Indian

7egislature cannot be in the same position as the omnipotent ritish "arliament and how far

delegation is permissible has to be ascertained in India as a matter of construction from the

express provisions of the Indian Constitution. It cannot be said that an unlimited right of

delegation is inherent in the 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. The legislature must retain in its own hands the

essential legislative functions which consist in declaring the legislative policy and laying down

the standard which is to be enacted into a rule of law and what can be delegated is the task of

subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. "rovided the legislative policy is enunciated with sufficient clearness or a

standard is laid down, the courts should not interfere with the discretion that undoubtedly rests

with the legislature itself in determining the extent of delegation necessary in a particular case.

1ith these observation she said, 4ection < of the Delhi 7aws 0ct, 9F9@, and 4. @ of the 02mer-

5erwara /xtension of 7aws! 0ct, 9F:


20/25

4tate or to any part of such 4tate with such modifications and restrictions as it thinks fit any

enactment which is in force in a "art 0 4tate, is intra vires. The latter portion of the said section,

which empowers the Central *overnment to make provision in any enactment extended to a "art

C 4tate, for repeal or amendment of any law other than a Central 0ct! which is for the time

being applicable to that "art C 4tate, is ultra vires.

Sastri ,.

The learned 2ustice attempts to answer the first two +uestions together3

4ection < of the Delhi 7aws 0ct, 9F9@, fell within the general scope of the affirmative words of

section @@ of the Indian Councils 0ct, 9=9, which conferred the law-making power on the

*overnor *eneral in Council and that the provision did not violate any of the clauses by which,

negatively, that power was restricted. The same line of approach lead the learned 8ustice to the

conclusion that section @ of the 02mer-5erwara /xtension of 7aws! 0ct, 9F:


21/25

To answer this, the learned 2ustice relies on the positions in 0merica and H.G and states there is

no difference between the /nglish and the 0merican decisions on this point. In both countries it

is recogni#ed that the correct way of resolving such problems is to look to the terms of the

constitutional instrument, and to find out whether the impugned enactment falls within the ambit

of the lawmaking power conferred on the legislature which passed the enactment and, if so,

whether it transgresses any restrictions and limitations imposed on such power. If the enactment

in +uestion satisfies this double test, then it must be held to be constitutional.

6e relies thus on the Constitution and 2ust as the other 2ustices have done, brings to light, at this

the context, 0rticles @:A and @::! of the Constitution. 6e states that the 0ct passed by

"arliament was in accordance with the prescribed legislative procedure, and hence there is no

reason why it should not be regarded as a law. >urther there is nothing in these provisions which

could possibly attract the wrath of "art III of the Constitution. It should thus be considered valid.

6e also dismissed the argument by the council with respect to the 7atin maxim e0pressiounis est

e0clusio alterious# 6e was of the opinion that an express provision was not necessary for the process of delegation. >urther, the maxim is not one of universal application, and it is

inconceivable that the framers of the Constitution could have intended to deny to the Indian

7egislatures a power which, as we have seen, has been recogni#ed on all hands as a desirable.

1ith these observations, he held all three 0cts in their entirety as valid an intra vires.

S-+'( & %$* *CISI&0S

The opinions delivered by the 2udges in the present case went on to shape the way the concept of

delegation was viewed in India. The 4upreme Court took the following view and the < opinions

were based on the same3

• 4eparation of powers is not a part of Indian Constitution.

• Indian parliament was never considered as an agent of anybody. Therefore doctrine of

$ele-ates non potest $ele-are is not applicable.

• "arliament cannot completely abdicate itself by creating a parallel authority.

• &nly ancillary functions can be delegated.

• There is a limitation on delegation of power. 7egislature cannot delegate its essential

functions. /ssential functions involve laying down the policy of the law and enacting that

policy into binding rules of conduct.

C'I%IC+/ +0+/(SIS


22/25

>rom a study of the above 2udicial opinions it is humbly submitted that there is not much

material difference between the ma2ority and minority opinion in the present case.

The ma2ority is of the opinion that only non-essential functions, i.e. the power of policy making

accompanied with annexation of sanction can be delegated even if there is an explicit mention

allowing the delegation, while the minority stands firm on its decision that most functions can bedelegated, sub2ect to the condition of non-abdication. It has to be noticed here that, the power of

abdication@@ is in fact an essential legislative function. The ma2ority has also expressed its view

that the 7egislature cannot create a parallel authority with the same powers and functions that it

now en2oys.

The case has been +uoted as the Bible o# delegated legislation@;. 1hat it means that, it is

considered as a comprehensive document on delegated legislation which has clearly laid down

the importance and the necessity of delegation and at the same time indicates the safeguards

necessary to ensure there is no excessive delegation.

It is also to be noted that the subse+uent to this case, there was still some confusion in the air

regarding the limits of delegation. The first of such cases which cleared the air was theGwalior

Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax 24. The 4tandard test

or the "rinciple and policy test was laid down by Ghanna, 8.

Principle and Policy %est"

1hen the legislature confers powers on an authority to make delegated legislation, it must lay

down policy, principle or standard for the guideline for the authority concerned. The decisions

regarding the policy matters still rest with the legislature whereas only ancillary decision making

functions are delegated.

0t about the same time 5athew, 8. put forward the 0bdication test.

+bdication %est"

0s long as the legislature can repeal the parent act conferring power on the delegate, the

legislature does not abdicate its powers. This test was however not accepted. 6e subse+uently

88 ean#ng : the act o !eno&nc#ng o! a'andon#ng $!#v#lege" o! d&t#e" e"$ec#all connectedw#th h#gh oGce" Black" Law #ct#ona!, th 4dn., 8

89 I..a""e, / Administrative Law”, 4a"te!n Book 6o. 7th edn.,8< at g18

8> (17>) > S66


23/25

enforced the same in N..!a"ia# !. $xcise Commissioner 2% . Though at this point it is incorrect

to test the validity of these tests, it is trite to say that both have their merits and demerits which

can clearly be seen from the 2urisprudence of delegation in the Indian setting.

>inally the one issue that this case has however not dealt with is 1ho exactly decides what the

essential functions are

Nast powers of delegated legislation have been recognised and affirmed in the case with a

principled caveat that the essential features of legislative power identified as the power of policy-

making accompanied with annexation of sanctions may not be delegated away. This caveat is

seldom brought into play by the 4upreme Court of India@. The 0pex court has time and again

stated that it is the policy matters that constitute the important non-delegable functions. 6owever

this does not provide a fool-proof guarantee to identify the legislative functions that can be

delegated. It remains for the courts to decide, in each case as and when the situation arises, what

the essential non-delegable functions are and what are not. eing recogni#ed as the sentinel on

the 1ui &i&e and because of the paramount obligation imposed upon it by 0rticle 9:9 of theConstitution, which declares that the law made by the 4upreme Court is the law of the land, the

0pex court has been vested with this all important duty in the hope that 2ustice should not only

done but is manifestly and undoubtedly seen to be done@inally, the present case has formed the foundation on which issues regarding the possibility and

extent of delegation of legislation have started to become unambiguous. It has laid down the

groundwork and has left it to the 2udicial system to carry forward this fundamental principle.

8@ (17@) 1 S66 >8

8; 3$end!a Ba+# , / .he M/th And 0ealit/ 1" Indian Administrative Law0 a" an

#nt!od&ct#on to I..a""e" / Administrative Law”, 7th 4dn..81

87 e! Lo!d 6h#e &"t#ce Hewa!t #n 0 v. !usse2 #ustices, e2 parte Mc Carth/


24/25

The case specifically lays down that the ritish or the 0merican model cannot be implemented

as such in India. The Indian system, though it has borrowed extensively from other systems

round the world, deserves better. It is humbly submitted by this author that, the position in this

case be regarded as the Indian model on Delegated 7egislation set forth for other countries to

consider.

6oncl&"#on

The governmental power is very much essential for a nation to preserve its$ resources and

progress among the competing nations. The source of power is the constitution which the people

have given to themselves. It is well established that the concentration of power is detrimental to

the welfare of peoples. /ven for the sake of convenience of the administration the power has to

be distributed among different organs of the government. The main task of the legislature is to

pass the legislation. There is a trend in practice at the present time that only a small part of the

total legislation originates from the legislature. The bulk of the legislation is promulgated by the

/xecutive as a delegate of the legislature, and this is known as delegated legislation. )ormal

practice is that the 7egislature passes a law covering general principles relating to the sub2ect

matter and confers rule-making power on the *overnment, or on some other agencies of its$

choice. The delegation of legislative power is permissible only when the legislative policy is

ade+uately laid down and the delegate is empowered to carry out the policy within the guidelines

laid down by the legislature.

0ccording to the doctrine of separation of powers, the legislature cannot exercise executive or

2udicial power( the executive cannot exercise legislative or 2udicial power( and the 2udiciary

cannot exercise the other two powers. The "residential form of *overnment in the H.4.0 is

based on the doctrine of separation of powers. ut this doctrine is not strictly applied in the

Hnited 4tates, and some exceptions to this doctrine are recogni#ed in the Constitution of Hnited

4tates itself. In India, the parliamentary form of *overnment operates and is based on co-

ordination of the executive and the legislature. The 4upreme Court in %am 8awaya Gapur v. 4tate

of "un2ab, held that the Constitution had not indeed recogni#ed the doctrine of separation of

powers in its absolute rigidity but the functions of the different branches of the government had

been sufficiently differentiated and conse+uently it could be very well said that our Constitution

did not contemplate assumption by one organ of the 4tate of functions that essentially belong to

another. >irst attempt was made to reconcile the delegation of legislative power with thedoctrine of separation of power by using the word K+uasi$ to name +uasi-legislative power.

)o matter, to soften a legal term by a K+uasi$ is a time-honoured lawyer$s device, yet, in the

sphere of administrative process it becomes illogical to grant legislative and 2udicial powers to

administrative agencies and still to deny the name. Therefore, now it is being increasingly

reali#ed that the Kcult of +uasi$ has to move from any theoretical prohibition to a rule against


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unrestricted delegation circumscribed by the power of 2udicial review under the compulsion of

modern government. 5ontes+uieu himself never used the word Kseparation$ in his writing.

Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of

power by the three organs of the state is the soul of the doctrine of separation of powers.

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