This article has been written by Oishika Banerji, a student of Amity Law School, Amity university Kolkata.
While we are living in this 21st century it has become easier for us to view the surrounding which is gradually taking the course of being welfare and service provided by nature thereby overtaking it’s nature of individualism. A welfare state welcomes a wide growth in a government’s authority which stands as the essence of any welfare state. Therefore for such an expansion in the authority of the government present, there is a requirement of delegation of powers, function and authority in order to ensure effectiveness in the administration procedure. The task of augmenting the competency of the government to validate it to handle the social and economic issues and reconstruct the same has been accomplished through the methodology of delegation of legislative power to it. The very same delegation of power stands interrogative when it comes to its constitutionality. This question is indeed natural and original in form.
Globally, delegated legislation is welcomed in several countries. In case the Constitution of a specific country is silent regarding the definite limit of the delegated legislation, the responsibility of the same lies on the courts to decide. There is a presence of clear silence on the part of the constitution of countries like the USA, Canada, India, Australia, South Africa in this context. While in the UK large volumes of administrative rule-making is not subject to parliamentary scrutiny but there are statutes to check the permissible limits of the same.
With respect to Australia, it was the case of the Victorian etc. Co. and Meakes v. Digian , where the court rejected the doctrine of separation of powers over delegation of legislative power. Therefore the validity of such power was also subject to scrutiny before its final effect.
While we take a look into the practice of the constitutionality taking into view England, it can be well infer that limits of the delegated legislation is laid down in the statute itself and therefore the executive has to work within the very same permissible limit. This becomes an indispensable element in the United Kingdom’s administration procedure in order to ensure the functioning of Judicial Review.
United States of America
On the contrary when we turn to the United States, it is the principle of Separation of Power that ensures no encroachment among departments of the government and therefore the instance of delegation of legislative power does not arise. It was in the case of Field v. Clark , where the same was decided. Broadly if the concept of Separation of Powers is taken into knowledge, it can be learnt that in the want of the new executive, the doctrine is neither feasible nor welcoming as also held by Marshall CJ who perceived the presence of powers of questionable nature and therefore drew a conclusion that it was within the potential of the legislative to delegate their powers to that of the executive branch.
What appears in the case of Canada is that the only limitation with regard to the delegation of legislative power is the responsibility on the part of Parliament to delegate only those powers which can be recalled by itself when necessary.
For a modern government, one of the essential elements of governance is that of delegated legislation. When there is law-making on the part of the provinces, the requirement of the same is delivering the function with accordance to the parent act. This acts as a role of constitutionality in the case of South Africa’s administration.
In the case of India, the constitutionality of administrative rule-making should be subject to discussion under the umbrella of three different periods ranging from the privy council to that of the present apex court, the Supreme Court of India. The article further deals with the weapon of constitutionality with light to India in depth.
It was the famous R v. Burah , where the word constitutionality was first taken under concern by the privy council. It was rather questionable by nature. Although the decision of the court encountered interpretations, the inference drawn was uncertain by nature. Where one of the interpretations was that as the Indian legislature was not a delegate of the British parliament, permissible limits of delegated legislation therefore does not exist, the other said on the jurisdiction of the privy council. It had limited itself till the extent of conditional legislation and thus delegation of legislative power was not to be entertained. With cases of the same traits climbing the privy council increased, the clear conclusion that could be inferred was the question related to the sanctioned limits of delegations remained debatable.
With the wheels turning towards the Federal court, it was the case of Jatindra Nath Gupta v. Province of Bihar , the validity of section 1(3) of the Bihar Maintenance of Public Order Act, 1948 was tested. This provision was challenged on the grounds that the same vested powers on the provincial government to stretch the life of the Act to that of a year as it may deem fit. The court concluded the case with the decision that the power vested stood unconstitutional for the Act in hand is an essential legislation. The court proceeded declaring that in India there would be no delegation of legislative power.
With this decision, hesitancy was created regarding the limits of delegation of legislative powers which initiated the growth of the Supreme court of India as the highest court of appeal. Clarification on the part of law in question was required to be used in future cases to come therefore it was under Article 143, which lays down the power of the president to consult the Supreme court, the President sought for the opinion of the court on the question of the constitutionality of three different acts covering different time frames which were:
- Section 7 of the Delhi Laws Act, 1912; followed by
- section 2 of the Ajmer-Merwara Act, 1947; and
- section 2 of the Part C States (Laws) Act, 1950.
The fate of these acts were decided in the case of Delhi Laws Act, 1912, Re Delhi case  which was responsible for setting a benchmark in the field of delegated legislation. The Supreme Court in this case considering the views of two extreme thoughts came to the decision that the three different acts were to be held valid. It was only in the case of section 2 of the Part C States (Laws) Act, 1950 that the part which bestowed the power of repeal and modification of legislative policy was held to be invalid on grounds of excessive delegation leaving the rest of the part as valid.
Why is Excessive Delegation Unconstitutional?
To talk about excessive delegated legislation, the factors which are required to be considered are as below:
- The exposition of the law at hand;
- Grounds of application of the statute along with its Preamble;
- Scheme of the law;
- The facts and circumstances serving as a background for the law to be enacted.
These grounds were decided in the case of St. Johns Teachers Training Institute v. National Council for Teacher Education  that helps to decide whether a particular legislation amounts to excessiveness or not. While the previous case laws and the facts clearly indicate that excessive delegation stands unconstitutional by nature itself, the fact that too much power on one hand invites danger cannot be ignored also. When a statute is under the challenge to prove the constitutionality of the same, it should not be arbitrary by nature and function and therefore should also not be violative with any provision of the constitution. The necessary requirement that needs to be abided by is the principle of reasonableness that is Article 14 and Article 19 of the Indian constitution. It is therefore settled that any rule- making function which acts as a prejudice for any person without the authority or rule of law is to be declared invalid by its nature itself.
Grounds to Determine Constitutionality of Administrative Rule-Making
The Supreme Court of India with its decision in several cases have set out norms of jurisprudence which now acts as a guideline for any delegation to fall under the category of either being constitutional or unconstitutional by nature. The inferences drawn from the cases decided by the apex court are as follows:
- It was the case of Indian oil Corporation v. Municipal corporation, Jullundhar where the court decided that any delegated legislation should be consistent with the parent act and therefore should not violate any legislative policies of the same. To be precise the court hinted in saying that a delegate is not supposed to possess more legislative power than that of a delegate.
- It is solely on the legislature to determine the permissible limit of any administrative rule making. The limit is to be applied to any form of delegated legislation.
- For the essential legislative functions which include laying the policy to govern a said act, is not subject to delegation by the legislature. The same statement can be inferred in a different way which would signify that delegation of non–essentials cannot take place, however significant they may be.
- After debates, discussions and thoughts, the courts have decided to take any divergent statement as a suitable policy for the Act in concern which will be necessary for determination of the grounds of constitutionality.
- Unreasonableness is one of the elements necessary for determination of validity of a delegated legislation. The check on abiding of any procedural safeguards if laid down in the main act also comes along with it.
- The Apex court made it clear that the motive behind the delegated legislation is not a valid ground to determine the competence of the authority. Rather the court would take into concern the relevance and the importance of the context and the background in which the rule making power has been used.
- A necessary view of the court regarding the violation of public interest was that it supported the adoption of the doctrine of proportionality for determining the constitutionality of the rule making power.
- It was in Bihar State Govt. Secondary School Teachers Assn. v. Ashok Kumar Sinha , the court held that the decision produced by the court cannot be turned over by any administrative authority by bringing a change in its rules for it would directly amount to contempt of court. This decision hinted that the court would not leave any scope for the establishment of excessive delegated legislation.
The scope of delegated legislation is wide enough to involve several other grounds to determine its constitutionality but the grounds which are already mentioned are firm enough to understand the necessity of permissible limits for any delegated legislative function. Article 245 of the Indian Constitution lays down that the potential of delegation which is it being a constituent ingredient of the legislative power. Therefore the object of constitutionality is not to restrict the functioning and the aim of delegated legislation but to act as a filter to avoid unnecessary conflicts in the administrative mechanisms.
In the case of Kerala Education Bill , the court upheld delegation to government as not to be “unguided” and “unconstitutional” by nature by relying on two grounds which ensures protection:
- Laying down of the preferred rules before the legislature.
- Legislature is required to pass a resolution before the government takes an action which shall indicate that the legislature has not abdicated its role.
Necessity of Constitutional Check on Taxing Power
Taxing power is one of the inherent powers of the State. Determination of the constitutionality of the same power stands essential for the taxing power is one of the essential elements for the regulation of socio – economic and political framework of the entire country. The analysis that can be drawn from the common decisions taken by various courts across the country is that a taxing power being a necessary power of the legislature cannot be delegated further but the power to levy tax subject to the fact that the essential areas will be handled by the legislature itself. India, a democratic country, has an efficient hold in the field of taxation. Providing ways to delegation of this wide power can be seen as a direct instrument to weaken the parliament and therefore it is advisable that there remains a hold on this power supremely in the hands of the legislature.
What can be inferred from the above writings is that the judiciary prefers the mechanism of delegated legislation and therefore to avoid insurrection in the administrative process, the requirement of constitutionality of the rule-making power comes to play. It is true that be it the doctrine of separation of power or the rule of law, both aim at independence of the government organs and therefore delegated legislation becomes unfavorable.But the fact that both these doctrines cannot be implemented without effective mechanism of the rule-making power. In this modern world where there is a growing necessity of technicality, viability, experiments, delegated legislation requires introduction. A method that becomes essential must be implemented with safeguards that is delivered by determining the constitutionality of the same.
 4S C.L.R. 73
 143 U.S. 6^0, 692
 ILR (1879) 4Cal : (1878) LR 3 AC 889
 AIR 1949 FC 175
 AIR 1951 SC 332
 (2003) 3 SCC 321
 (1993) I SCC 333
 (2014) 7SCC 416
 1959 S.C.J. 321
- Image source : https://www.lawnn.com/types-of-legislation/
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