Enabling Statute- Complete Report

In this blog post, Akshita Rishi, a student pursuing M.A. in Business Laws from NUJS, Kolkata, presents a detailed report on Enabling Statute with 5 Case Laws.

Before we straight away bang on our topic, it is important for us to know the meaning of enabling statute, basis on which it is classified and the process of passing of statute.

The primary function of the judiciary is to render justice by the interpretation of the statute. So, for in-depth and sorted knowledge, classification of statutes play a major role. Classification is done on 3 basis –

  1. With reference to DURATION – Example: Temporary statute, Permanent statute
  2. With reference to METHOD – Example: Mandatory statute, Directory statute
  3. With reference to OBJECT – Example: Codifying Statute, Enabling statute

The statute begins as a bill is proposed by the legislator. It first reaches the legislative committee. After its approval, both houses of the legislature should also provide their assent. The executive officer (president on the federal state or the governor on the state level) after providing the mandate, signs the bill which then becomes Law.

When a bill becomes law, the various provisions in the bill are calledStatute”.

The statute which officially allows what was previously forbidden or introduces new powers is called Enabling Statute.

So, let us discuss enabling statute now.

As per law dictionary and Wikipedia enabling meansto give the meaning or to make anything operational” and statute means “a written law passed by the legislature in the state or federal state”.

It basically puts forward the general propositions which the court can apply during its procedure. Thus, we can conclude that enabling statute means “a statute that permits what was previously prohibited or that creates new powers.” It is a statute which either gives new powers or extends the powers to corporation or public in general.

Enabling Statute

As mentioned above, Enabling Statute means statute which either enlarges common law or makes something lawful which otherwise was unlawful. Instances of enabling statute can be acts authorizing compulsory acquisition of land for public benefit or prohibition of public and private nuisances. Such a statute grants or extends authority to carry on the procedure of the act and these rules can provide for several matters sans the preconceived opinion of the current provisions.
Illustration of this kind is Section 49 A and Section 49-A (2) of the Advocates Act as amended by Act 21 of 1964.

 Purpose & Effects

We are already through with the definitions and the meaning of enabling statute. It is, however, important for us to know that enabling statute creates Agency and defines its purpose and gives power to Agency.

It defines the procedural rules and formalities for all federal agencies and the rule book for administrative agencies. Although powers differ from agency to agency, it is possible to make accurate generalizations about the powers of the typical administrative agency.

One of the principles of law with regards to the effects of an enabling statute is that if the legislature gives the authority of something to be done, it at that same time gives the powers by all the crucial presumptions and information to accomplish every act which is necessary for carrying out the purposes in view.

This general rule under the law is that whenever the legislature gives any power to the public at large to do anything which is public in nature, the legislature also gives all the rights without which the power would be completely isolated. However, all the above-mentioned circumstances cannot be implied in Accidental situations.

How is Enabling Statute Constructed?

It is to be noted that the mentioned words in the statute should be compulsorily considered principally where ‘object of the power’ (which is either increased or introduced) is to put into operation a specified legal right. There have been many acts which have compulsory effects like the acts which authorize the compulsory acquisition of land for public purposes. Also, the acts which deal with public nuisances have the same compulsory effects.

Likewise, by an act of parliament, many other things can be done to an enabling statute which passed down the powers to public bodies to accomplish the acts which are public in nature with the perspective to fulfill the requirements with the power otherwise the powers so given would be meaningless.

Maxim “Expressio unius est excluio alterius” in English means “express enactment shuts the door to further implications”. In the other words, we can say that it expresses a certain rule which states that where the legislature expressly lays down, various terms and modes of dealing with the matter, it excludes any other mode except as specifically authorized.

Under certain cases, the words must be read to cover the case. However, the words so read to cover it by reasonable construction may sometimes point more exactly to another case. These cases are clearly within the mischief. Thus, it is important to provide a cloak to the case rather than make it a casus omissus.

However, the right is gone if the legislation lucidly authorizes that the act to be done should be physically inconsistent with the continuance of an existing right because the act so mentioned cannot be completed sans repealing the right.

Meaning of Discretionary Powers & Related Rules

According to Wikipedia, discretionary powers means the right to decide something based on one’s own judgment.

The statute gives discretionary powers to the authorities to carry out the acts mentioned in the statute in a reasonable and fair manner after consideration of various circumstances and conditions significant to the case. So, the discretionary powers mentioned in the statute gives the right to the donee either to use or devoid oneself from the right at his/her own will or discretion.

Thus, it is not necessary that the intention of the legislature should always be expressed in directory and imperative manner but if the statute gives discretionary power to the person regarding the rights so mentioned then the discretion is absolute. It is the duty of those people to abide by the rules and regulation so mentioned.

However, if such discretion is to be exercised by the court of justice then it must be governed by those rules i.e. it should not be vague and fanciful but should be clear and legal.

Legislature, however grants power to the court to employ permissive words in specific cases and circumstances as mentioned in the statute. It thus becomes the duty of the court to exercise the powers along with the proof according to the circumstances. In such cases, those words of the legislature should be strictly adopted in administration of justice.

  Doctrine of Delegated Legislation

Black’s law dictionary defines it as ‘the principle (based on the separation of powers concept) limiting legislature’s ability to transfer its legislative power to another governmental branch, especially the executive branch’.

Thus, legislation by the executive branch or a statutory branch or local or another body under the authority of the competent legislature is called delegated legislation. So, it is a legislation made by a body or a person other than parliament. Thus, parliament can permit any specified person, class of people or body corporate to frame or extend legislation.

Functions of Delegated Legislation

  1. It enables other people and bodies to provide more details to an act of parliament.
  2.  It allows the government to amend the law which does not mean making of a new law and it includes extension and amendment of powers and also the sanction of powers which were previously prohibited under a given statute.
  3. It provides a crucial role in making of a new law.

Example: Local authority under certain circumstances and statutes have the power which is given to them to make delegated legislation in accordance of their area requirements. However, it is to be noted that delegated legislation must always be in a manner conforming with the purposes laid down in that particular act.

Delegated Legislation: Importance

  • Reduces Burden on Parliament

Acts passed by the parliament comes under “primary legislation”, however, to avoid overburdening, delegation of authority takes place i.e. secondary legislation thus reducing time consumption to amend the statute and specifically on technical matters.

  • Enabling Statute when Delegated is Made with more Experience by Knowledgeable Experts

This can be explained by way of an illustration. A local authority has delegated power to make law with regards to the requirements which are necessary for their particular area. These decisions are based on expert knowledge which is best for the locality and not country as a whole.

  • Delegated legislation very well deals with the ‘Emergency Situations

As it does not require sanction by the parliament and the delegated authority can aptly take a decision according to the situation arisen.

  • Covers situation which is un-anticipated by parliament

Parliament may have prophesied certain situations while enacting the piece of legislation which delegated legislation can easily do thus making it more useful and flexible to law making.

Can Delegated Legislation Be Challenged?

  • If it is Unconstitutional to Enabling Statute

The constitution of India is superior to all others in authority, power or status. Thus, it is always said that the act passed by the legislature should always comply with the constitutional requirement but, the case may arise where there may be a violation of certain constitutional provisions in which the court may declare them as unconstitutional and thus void.

The limits of the constitution of India is of 2 types- Express and Implied

  •  Express limit

Under article 13, 245 and 246, express limit of the constitution is provided.

According to article 13(1), laws which are introduced in India before the commencement of the constitution of India shall be declared as void only if those laws are inconsistent with the provisions of part III i.e fundamental rights.

In case only a part is violating the provisions of constitution of India then only that part will be void and rest of the part will be valid.

According to article 13(2), the state cannot make or extend law which abridges the right as referred in part III or any law made infraction of the above specified clause shall be void. Also, if any part of the newly made or extended law violating the part III then that part shall be void and the rest part shall be valid.

  • Article 245 declares that the parliament can make or extend laws for the whole or any part of India. Also, the state is empowered to make or extend the powers for whole or any specified area of the state. However, any law made or extended by the state having operation outside that specified state shall be declared as invalid but, any law made or extended by parliament cannot be declared as invalid on the ground of extra-territorial operation.

Article 246 makes or extends the provisions with respect to the distribution of powers between parliament and the state legislature.

  • Implied limit

If the enabling act violates the specified limits of the constitution then it will be declared as ultra vires the constitution which further would become Void.

  •  Delegated legislation is Ultra Vires

If the delegated legislation is ultra vires or in excess of the powers conferred by the parent or enabling act then definitely that delegated legislation can be challenged.

  • Delegated legislation conflicts with the Enabling Statute

The delegated legislation can either directly or indirectly conflict with the provisions of enabling act and in this case delegated legislation can be challenged.

  •  The Powers are in excess as given by Enabling Statute

When the enabling statute is framed all the rules, regulations and powers which are extended or made are clearly stated. Any delegated legislation superseding those powers can be challenged.

We can understand the concept of Delegated legislation in detail with the help of following case law

S. Rama Rao & Ors Vs The Jawaharlal Nehru

Date of judgment – 8/08/1977
Equivalent citations – AIR 1978 AP 264
Bench – B.D C.J. , S Rao
Judgment by lakshmaiah, J.

Facts of the case

A total staff of 535 people belongs to various Government engineering colleges like Andhra Pradesh Ministerial service, Andhra Pradesh Technical Education service etc were working on various posts like clerk, hostel manager, upper division clerks, personal assistants etc.

These people were transferred to Jawaharlal Nehru Technological University on October 2, 1972. Out of 535, 45 belonged to ministerial and administrative category and 19 belong to class IV in the government service whose age of superannuation was fixed at 60 per governmental rules. For rest age of superannuation was fixed at 55 years out of them, some are also petitioners. Actually, the 1st respondent made a statute prescribing 60 years of superannuation to 471 people and 55years to rest (ENABLING STATUTE).

Now, the petitioners objected that as all the employees are drawn from the same source then why are different ages of superannuation is given. According to them, it is violative of the equality before law and equal protection of laws clause of Article 14 of the constitution.

Delegated Legislation

Please refer the above mentioned delegated legislation in detail.

Argument of the Case & Conclusion

The principles of interpretation which are applicable to direct legislation are equally applicable to delegated legislation. There is a presumption in favour of the constitutionality of delegated legislation which is in favour of delegated legislation.

Also, the doctrine of substantive ultra vires can be raised whenever the law-making authority works beyond the powers given to them by enabling statute. Moreover, if the object of delegated legislation is in any way related to the object of enabling act then the validity of such delegated legislation cannot be examined in the court of law.

Thus, it was concluded that the age of superannuation fixed is constitutional and Valid and article 14 of the constitution is not violated in any way.

 Is Enabling Statute Ultra Vires The Constitution?

Let us first understand the meaning of ultra and vires. ‘Ultra’ means beyond and ‘vires’ means powers. As per Wikipedia ultra vires means beyond one’s legal powers or authority and as per Black’s law dictionary it means “invalid access of authority or power exercised by an entity”.

Doctrine of ultra vires has been formulated by court to search for guidance for a valid delegation of legislative powers.

In a broader sense, the principle provided that the acts which are outside the scope of object clause of the memorandum or we can say the powers which are outside the powers of the administrative agency.

The agency must adhere to all the regulations and fair procedure so as to pull off all the proper purposes and must act on relevant considerations reasonably.

As per Halsbury law of England  –

“ultra vires in a proper sense denotes some act or transaction on the part of a corporation which although not unlawful or contrary to public policy if done by an individual is yet beyond the legislative powers of the corporations defined by the statute under which it is formed, or the statutes which are applicable to it, or by its character or memorandum of association”.

Relevant case law -> V.M Kurian vs State of Kerala

Delegated legislation originating from the statute will also be unconstitutional in case the legislative power which has been delegated while or in the process of interpretation of the statute is also unconstitutional.

Concept of Unconstitutionality

There are 3 reasons of unconstitutionality-

  1. Excessive Delegation
  2. Breach of Fundamental Right
  3. Breach of any constitutional provision

For Example – There is a clause in the enabling act regarding delegation which includes the curtailment of specified fundamental right then, in that case, it is ultra vires the constitution.
Another Example is– if a state legislature delegates the powers with respect to making of rules which have been specified in the union list then it is ultra vires the powers of state legislature which make it unconstitutional.

Related Case Law – Chintamon Roa Vs State of Madhya Pradesh

Date Of Judgement – 08/11/1950

Bench – Mahajan, Mehr Chand Kania, Hiralal J. (CJ) Mukherjea, B.K Das, Sudhi Ranjan Aiyar , N Chandrasekhara.

Facts of the Case

During the commencement of the constitution of India, the central provinces and Behar regulation of manufacturing of Bidis (Agricultural purposes) act was in force which provided that “ the deputy commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein” and further said that the deputy commissioner can pass a general order specifying the villages in which the order shall be levied to prohibit the manufacture of bidis during the agricultural season.

Thus, an order was issued by the deputy commissioner under the provisions of the above mentioned act to prohibit all people residing in the mentioned villages from engaging themselves in the process of manufacture of bidis during a particular season.

Now, as result of which a bidi manufacturer and an employee in a bidi factory who were residing in one of the mentioned villages applied under article 32 of the constitution for a writ of ‘Mandamus’ with an allegation that the act is prohibiting them from exercising their fundamental right to carry on their trade which was guaranteed to them by clause(1)(g) of Article 19 of the constitution, so the order should be void and held.

  • The object of the statute is to see to it that the measures of supply of adequate labor in bidi manufacture areas for agricultural purpose which could be achieved by restricting employment of agricultural labor in the manufacture of bidis rather than altogether prohibiting manufacture of bidis.
  • The law to the extent may authorize the imposition of restrictions related to agricultural labor which cannot be held valid.

Judgement

Application was submitted under article 32 of the constitution of India for a writ of Mandamus. The point of consideration in these applications was whether the Central Provisions and Berar Act LXIV of 1948 come within the domain of this saving clause or does it exceeds its provision. So, to judge the validity of this argument it is necessary to examine the challenged act and its related provisions.

According to preamble, it is said that it is enacted to provide measures for supply of labor for bidi manufacturing areas which deputy commissioner prohibited and the contravention of which is punishable either with six months of imprisonment or fine or both.

Now the question arises as to whether the statute in appearance of protecting public interests interfering with private business which is to be concluded by showing a reasonable relation between the two.

So, it is to be concluded that in matter of fundamental right, the supreme court has the supreme power to guard the rights mentioned in the constitution. Thus, it has the power to set aside the acts of legislature if it violates the freedom guaranteed under constitution.
Thus, the disputed statute does not stand the test of fairness and therefore Void.

Other Relevant Case Laws of Enabling statute

  • Ramjiban Gurchait Vs State Of West Bengal & ORS.

Date of judgement – 4/08/1953
Equivalent citations – AIR 1954 cal 56, 57 CWN 913
Bench – Sinha J.

Facts of the Case

The petitioner owns agricultural lands at Bhyarapur in the district of Howrah. He is a producer as denned by the order. A notice was served upon him to deliver 769 maunds of paddy to which petitioner filed an appeal against the directive which was dismissed on the technical grounds.

The technical point is unknown and the petitioner has not taken any steps against it.

Mr Gupta appearing on behalf of the petitioner has argued on constitutional point by reason which he claims the order to be ultra vires the constitution. Thus, it becomes unnecessary to go into petition in detail.

According to Mr. Gupta, he assumed that the purposes of this application are that the law applicable is the Essential Supplies Act 1948 on the basis of which decision was given.

Argument of the Case and Conclusion

As far as Essential Supplies act is concerned Section (3)(f) authorizes any person to sell the whole or any part of the stock to such people and in such circumstances as specified in the order.

In ‘Atulya Kumar De’ case, it was clearly pointed out that the essential supplies act is “Enabling Statute” which confers powers upon the government to do certain things by circulating orders. Thus, the existing law is merely an enabling statute conferring power to enact a law or order and such enactment is passed after the constitution. So, it cannot be said that the order passed is exempt from operation of article 31(2) as enabling statute is an existing law.

Thus, it was concluded that the application fails and must be dismissed. All the rules and interim orders passed shall also be discharged. Moreover, Interim injunction would continue for three weeks. A further stay must be obtained after Appeal Court after three weeks’ period gets over.

  • Awadhoot & Ors Vs The State Of Maharashtra & ORS.

Date of judgement – 28/04/1977
Equivalent citations – AIR 1978 Bom 28
Judgement – Dharmadhikari, J.

Facts of the Case

The petitioner is a tenure holder. He has filed a return to the collector which was then forwarded to the Surplus Lands Determination Tribunal (S.L.D.T) who then held a necessary enquiry according to which the petitioner was holding 45.27 acres of land as surplus sand therefore directed to delimitate such land u/s 21 of Maharashtra Agricultural Lands Act, 1961.

The petitioner was dissatisfied hence filed an appeal to Maharashtra Revenue Tribunal complaining that the authorities committed an error while counting the land as it was double counted with his son Umakant’s holding also. Also, Umakant was in possession of such land as a tenant and his son Purushottam was major on appointed date in which the authority committed an error.

Moreover, the petitioner also challenged SLDT on the ground that the order was passed by less than three members and therefore it is not in the jurisdiction of provisions of section 2-A of the act.

Argument of the Case and Conclusion

In this case, it was admitted that the decision was taken by two members as the third member was absent. Thus, it is ultra vires the State government and hence should be set aside. It was said that each tribunal shall consist of not less than three members, one of them should compulsory below the rank of Tahsildar and should not be chairman of the tribunal.

As far as the validity of rule 3 is concerned it is to be noted that the power to make the rule with respect of subordinate legislature is derived from enabling provisions in the act. Also, the delegated legislation should strictly be as per the powers mentioned in the enabling statute.

So, it practically means that though the legislature constituted a tribunal of more than one member for adjudication but this rule is ultra vires the rule making power in the Enabling Statute. It was concluded with the facts that Purushottam was of age of majority (birth certificate). It was also clear that accidently certain fields were shown on his name even though he did partition of his land between his son and grandsons.

  • M.V Elisabeth & Ors Vs Harwan Investment & Trading

Date of judgement – 26/02/1992
Equivalent citations – 1993AIR 1014,1992 SCR (1) 1003

Facts of the case

(Abstracted from Indiankanoon website) High court claims that a vessel was lying in the port of Marmagao which left the port sans documents required by the respondent company for the goods which they shipped like bill of lading etc. The appellant delivered the goods to consignee despite the continuous reminder by the company not to deliver the goods because of buyer’s failure to pay agreed price.

As there is a breach of duty the respondent filed a suit against the appellant invoking the admiralty jurisdiction of Andhra Pradesh High Court. The vessel when entered Vishakhapatnam Port was arrested but later released when owner furnished security by way of bank guarantee to which appellant raised a preliminary objection. According to appellant the suit cannot be proceeded as the foreign company is not having a place of business neither residence in India.

Judgement

Andhra Pradesh High Court succeeded Madras High Court with all original jurisdiction to arrest and detent the ship.

Colonial court of admiralty act 1890 refers to Admiralty Jurisdiction of High Court in England. This is an enabling statute and not a statute of limitation of power, it aids the growth of jurisdiction. Also, according to the international law, the ship becomes part of the jurisdiction in which it enters that is of the foreign state or water.

Thus, the above appeal was heard and was disposed of on the above mentioned merits in the Andhra Pradesh high court.

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