Home case analysis Harishankar Bagla vs. State of Madhya Pradesh (1954)

Harishankar Bagla vs. State of Madhya Pradesh (1954)

July 5, 2024

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This article is written by Shilpi. This article contains a detailed analysis of the findings and decision of the Supreme Court in the case of Harishankar Bagla vs. State of Madhya Pradesh (1954). It sheds light on the concept of essential legislative functions and their delegation by the Legislature to the Executive.

Table of Contents

Introduction

When we look into the descriptive meaning of the term ‘excessive delegation’, we can deduce its meaning from the name itself because of its self-explanatory nature – an authority delegates its functions or part of its authority to another authority in surplus of what is legally permitted.

Understanding it from this perspective of political angle, we can see that the legislative body of the Government is responsible for framing laws while the Executive body of the Government is responsible for implementing the laws and policies adopted by the Legislature. Under the excessive delegation in this scenario, the Legislature delegates its function, that is powers of law making, to the Executive that later delegates the same to the lower authority under it.

It is critical to note that, unlike other countries, India does not represent a single language, culture, people, or faith. While any other country would have considered these differences as bones of contention and fraught with worries, India stood out as the world’s largest democracy finding unity in its diversity. The struggle for independence and the arrival of 15th August 1947 has been a culmination of India’s odyssey from the predominance of the Executive pre-independence to the predominance of the Executive closer to independence and thereafter.

While the Constitution framers designed the Indian constitution with a federal structure in mind, it consists of unitary elements. This dual polity was possible because the Centre granted reasonable autonomy to States and in return they did not consolidate to form a Union like the United States of America. In simpler terms, this form of India existed prior to independence. The Kingdoms, Presidencies, and States merged into one another, and a few renamed themselves. Today, India has 28 States and 8 union territories.

India’s democracy relies on four pillars to stay true to its name – the Legislature, the Executive, the Judiciary and the Press. While the functions of these four pillars are distinctive, they play an imperative role in keeping checks on each other to ensure the true spirit of democracy exists in the country. They all work in tandem to protect India from incidents and occurrences of violence, bureaucracy, corruption, chaos, etc.

Considering the quasi-federal structure of Indian democracy, this article aims to discuss one such landmark case where the Court defined the contours of essential legislative functions and the doctrine of separation of powers to ensure that nobody in the Government can participate in the excessive delegation of essential legislative functions.

Details of the case

The following are the fundamental details of the case:

Court: The Supreme Court of India

Appellants: Harishankar Bagla and Another

Respondent: State of Madhya Pradesh

Case Number: Criminal Appeal No.7 of 1953

Neutral Citation: (1954) 1 SCC 978; AIR 1954 SC 465

Bench: M.C. Mahajan, C.J., B.K. Mukherjee, Vivian Bose, N.H. Bhagwati and T.L. Venkatarama Ayyar, JJ.

Date of decision: 14.05.1954

Relevant Act: Essential Supplies (Temporary Powers) Act, 1946; Cotton Textiles (Control of Movement) Order, 1948.

Relevant Section(s) of the Act: Sections 3, 4, 6 & 7 of the Essential Supplies (Temporary Powers) Act, 1946; Clauses 2, 3, 4, 8 of the Cotton Textiles (Control of Movement) Order, 1948.

Background of the case

The case of Harishankar Bagla and Anr vs. State of Madhya Pradesh (1954) was decided by the Constitutional bench of the Supreme Court on 14.05.1954. This case primarily deals with the concept of essential legislative functions and the extent of its delegation. The case involved the question regarding the validity of the Cotton Textiles (Control of Movement) Order, 1948 (hereinafter referred to as the “impugned Order”) which provided for a permit from the Textile Commissioner for transportation of cloth by any person. It was argued by the party that the impugned Order provides for an unregulated and arbitrary power in order to grant or refuse a permit. However, the Supreme Court upheld the validity of the impugned Order.

It was decided by the Supreme Court that delegated legislation which is intra vires the parent Act can be held as ultra vires if it contravenes the provisions of any other legislation. However, a statute may contain such a provision which can protect the rules made under that statute from being invalid on the grounds of inconsistency with any different statute. This principle was upheld by the Supreme Court in the present case.

Facts of Harishankar Bagla vs. State of Madhya Pradesh (1954)

The appellant and his wife were arrested at Itarsi Railway Station by the Railway Police Force on 29.11.1948 for contravening the provisions of Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 (hereinafter referred to as “the Act”) read with Clause (3) of the impugned Order. The appellant was found in possession of “new cotton cloth” weighing over 6 maunds. It was alleged that the party took the “new cotton cloth” from Bombay to Kanpur without any required permit. The Chalan passed was withdrawn by the High Court as it involved a decision on Constitutional issues.

The High Court vide order dated 15.09.1952 upheld the provisions of Sections 3 & 4 of the Act. Section 6 of the Act was held to be inconsistent with the provisions of the Railway Act, 1989. However, the Court decided that the unconstitutionality of Section 6 would not affect the prosecution in the present case. Directions were given by the High Court to proceed with the prosecution and revert the records to the trial Court to try the matter as per the provisions of the law.

The High Court gave the leave to appeal to both the parties and the required certificates under Articles 132 and 134 of the Indian Constitution. Subsequent to the receiving of certificates, the present appeal was filed.

Relevant provisions and doctrines of the case

Section 3 of the Essential Supplies (Temporary Powers) Act, 1946

Section 3 of the Act deals with the powers to control the production, supply, distribution, etc. of essential commodities.

When the Central Government feels it is necessary or advantageous to maintain or expand supplies of the essential commodities, or to ensure that the supplies are distributed equally to all Sections instead of a selected few and available for sale at fair prices, then the Central Government may release a notification for regulation and prohibition for the manufacture, supply or distribution of the essential commodities, and its trade and commerce as well.
While the Central Government has general powers as per Sub-Section (1) of this provision, the Government can issue an order with respect to –
To regulate the production or manufacture of any essential commodity via permits, licences or any other means.

(d) To regulate the storage, transportation, distribution, disposal, acquisition, usage or consumption of any essential commodity via permits, licences or any other means.

Section 4 of the Essential Supplies (Temporary Powers) Act, 1946

Section 4 of the Act deals with the delegation of powers by the Central Government. The Central Government has the power to notify and direct that the powers enjoyed by it under Section 3 in relation to such matters and pertaining to such conditions may be exercised also by –

An officer or any authority that is subordinate to the Central Government, or
Such State Government or any officer or authority that is subordinate to the State Government, as is described or mentioned in the direction.

Section 6 of the Essential Supplies (Temporary Powers) Act, 1946

Section 6 of the Act talks about the circumstances under which the Orders issued by the Central Government in accordance with Section 3 are inconsistent with other enactments in existence.

Section 6 declares that if there is any inconsistency between an Order made in accordance with Section 3 and the provisions of any other enactment, then despite that inconsistency, the provisions of the Order will prevail over the provisions of the other enactment.

Clause 2 of the Cotton Textiles (Control of Movement) Order, 1948

Clause 2 of the impugned Order defines the following terms:

Apparel – Any garment or other article that is made entirely or mainly from a cloth that is not knitted cloth and used for domestic or personal purposes. It excludes the usage of old or used garments.
Carrier – When railway administration or another person is in the business of moving property from one place to another or place to place by means of air, sea, land, or inland navigation.
Hosiery – It means stockings, vests, drawers or any other item of personal use that has been made from knitted cloth or directly knitted from the yarn.
It states that the meaning of cloth and yarn is the same as the one given in the Cotton Textiles (Control) Order, 1948.
Textile Commissioner – When the Central Government appoints someone to the post of Textile Commissioner, the said person will be deemed a textile commissioner as per the rules of this Order. It also includes any Additional Textile Commissioner, Deputy Textile Commissioner and others appointed by the Central Government.

Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948

Clause 3 of the impugned Order states that no person can transport or play a role in the transportation of any cloth, yarn, or apparel by air, rail, road, sea or inland navigation from one place to another place in India without meeting the following conditions:

(i) Textile Commissioner has to notify about the general permit in the Official Gazette for transporting the aforementioned items from one place in a particular State apart from the Greater Bombay and the City of Ahmedabad areas, by that State’s Government.

(ii) The Textile Commissioner has to issue a special transport permit.

Clause 8 of the Cotton Textiles (Control of Movement) Order, 1948

Clause 8 of the impugned Order states that the Textile Commissioner has the flexibility to release a notification in the Gazette of India to describe the manner in which a person applying for a special permit under this impugned Order can do so. The different forms for application needed to acquire a permit and the circumstances in which the permit can be acquired have been notified by the Central Government.

Essential legislative function

Law-making power is essentially bestowed upon the Legislature, however, in certain circumstances delegation of these legislative functions is allowed subject to certain conditions. Nevertheless, the Legislature cannot delegate its essential legislative functions. In the absence of any absolute definition of essential legislative function, to fill the void, the judiciary has interpreted various acts which will come within the ambit of essential legislative function.

The Supreme Court in the case of In re the Delhi Laws Act, 1932, the Ajmer-Merwara (Extension) vs. The Part C States (Laws) Act, 1950 (1951) held that the essential legislative function involves the determination or choosing of the legislative policy. It also includes formal enactment of policy into a binding rule of conduct. The discretion as to formulating the ambit of the details of the policy vests with the Legislature and, the remaining legislative work can be delegated to the subordinate authority to work out the details while keeping itself within the scope of the policy.

In the case of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Anr. vs. Union of India & Ors. (1959), where the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954 was enacted to ban advertisements claiming to provide a cure for incurable diseases, and, Section 3 of the Act provided the authority to the Government to modify the list containing the names of the diseases. The Supreme Court held the provision to be unconstitutional as the Section failed to provide sufficient guidelines for the same.

In the case of Devi Das Gopal Krishnan & Ors. vs. State of Punjab & Ors. (1967), the Supreme Court observed that in view of the multifarious activities of a welfare State, the State cannot work out all the complexities as per the varying aspects of the disputes. Hence, it is necessary to delegate the act of working out the details to the Executive or any other authority.

In the case of Municipal Corporation of Delhi vs. Birla Cotton, Spinning and Weaving Mills Delhi (1968), the Supreme Court held that the Legislature is not empowered to delegate essential legislative functions. There can be no abdication of legislative function or authority, either completely or partially in respect of a subject matter specifically entrusted to the Legislature by the Indian Constitution.

In the case of Gammon India Ltd. vs. Union of India & Ors. (1974), Section 34 of the Contract Labour (Regulation and Abolition) Act, 1970 empowered the Central Government with rule-making power in order to give effect to the provisions of the Act in case of any difficulty. The Supreme Court held that Section 34 does not provide for excessive delegation because it does not alter the provisions of the Act, rather it provides for ways to properly implement the Act.

It is the responsibility of the Court to decide what is the essential legislative function of the Legislature. It is the obligation of the Court to examine whether or not the impugned delegated legislation is within the purview of the parent legislation. The delegate is not entitled to make Amendments of such nature which has the ability to change the underlying policy of the parent legislation. It is mandatory for the delegate to keep into consideration the essence and substance of the parent legislation while making the modifications.

Doctrine of delegation

The doctrine of delegation refers to the act where through an Act of Parliament, the Legislature can allow another person or body to make legislation on its behalf. The doctrine of delegated legislation is also known as ‘secondary legislation’.

The Parliament creates a framework of any law and determines the contours of the law for the purpose of the Act. Then, the Parliament delegates the authority for law-making to another person or a body to define the laws of the Act in a comprehensive manner. Hence, the mode of primary delegation which is an Act of Parliament, allows another person or body to make rules or laws via delegated legislation. The laws created by the authority to whom the powers of legislation have been delegated must be in accordance with the defined purposes of the Act.

Since the contours of delegation have not been strictly defined, the Judiciary has stepped in time and again to trace the boundaries within which this power of legislation-making can be delegated by the Parliament to ensure that delegation does not amount to excessive delegation in contravention of the powers granted by the Indian Constitution. Let us have a look at them:

In Re: Delhi Laws Act case (1951), then Chief Justice Kania stated that even though the Legislature enjoys the power to delegate rule and regulation-making for the seamless operation of the enactment and to give it effect, it should determine the policy and principles that create the rule of conduct while carrying out this function. Only during the cases of emergency such as war should the legislative body of our country delegate the rule-making power with broad discretion to any non-legislative authority.

In Ajoy Kumar Banerjee vs. Union of India (1984), the Supreme Court observed that the role of declaring the legislative policy and defining the standards of the policy in utmost precision falls in the ambit of essential legislative function and as such cannot be delegated by the legislative body.

In the case Agricultural Market Committee vs. Shalimar Chemical Works Ltd. (1997), the Supreme Court stated that delegation can be exercised by the legislative body strictly for implementation purposes only. This means that the role of subordinate legislation is limited to making the policy functional instead of deliberating about policy choices or creating them from scratch as this would be in contravention to the purposes for which the powers were delegated in the first place by the legislative body to a non-legislative body.

In Gwalior Rayon Silk Mfg. (Wvg.) Co. vs. The Asstt. Commissioner of Sales (1973), the Supreme Court observed that formulating legislative policy is an indispensable part of essential legislative functions. According to the binding rule of conduct, the Legislature does not hold the power to delegate its formulation. Moreover, the Legislature does not have any unfettered right to delegate authority or its powers as per its whims and fancies. It is imperative for the Legislature to reserve the essential legislative functions for sole usage and delegate only those tasks of subordinate legislations that are needed for executing the objects and purposes of any Act. Up to what extent the guidance has been provided and whether it has been provided at all in any given case depends on taking a close look by the Court on the concerned Act, its object, its provisions and its preamble.

In Vasantlal Maganbhai Sanjanwala vs. The State of Bombay And Others (1960), the Apex Court stated that legislative power as a whole is not dissociated with the power of delegation. In other words, the power of delegation by the legislature by the executive is part and parcel of legislative powers bestowed on the legislature. The existing times are such that the Legislature has to work tirelessly to resolve the complications posed by intricate socio-economic problems. In such scenarios, the Legislature finds it easier and critical to delegate ancillary powers of their choice to execute the legislative policy brought about by their Acts. At no cost, the Legislature has the right or liberty to delegate its essential legislative functions. While it can determine the legislative policy and principle, it is the duty of the Legislature to provide support or guidance to the authority or any such person or body to which it is delegating its subsidiary powers for following through the said policy.

The Parliament does not enjoy the inherent power to legislate on any matter. The Constitution of India has delegated this power to the Parliament to make laws, rules, etc on its behalf. Hence, the Parliament cannot exercise the power to delegate capriciously. Instead, the responsibility has been entrusted by the Constitution to the Parliament to exercise this power itself. Any delegation of essential legislative functions is strictly prohibited as per the existing laws and the Constitution and these functions have to be carried out by the Legislature itself instead of delegating these responsibilities to the Executive. However, once the Legislature has fulfilled its primary task of exercising essential legislative powers, it can delegate any or every ancillary function to the Executive.

Issues raised

For adjudication of the dispute between the parties, the following issues came to be decided by the Court:

Whether the provisions of Sections 3 and 4 of the Act and the impugned Order are in contravention of Articles 19(1)(f) and (g) of the Indian Constitution?
Are Sections 3 and 4 of the Act ultra vires the Constitution on the grounds of excessive delegation of legislative powers by the Legislature?
As Section 6 of the Act has been found to be ultra vires, and Section 3 is inextricably connected with Section 6, whether Section 3 should also be declared ultra vires?
Whether the impugned Order is in contravention with Sections 27, 28 and 41 of the Indian Railways Act, 1989 and hence, the impugned Order is void in its entirety?

Arguments made by the parties

Appellant

The appellant made the following contentions before the Apex Court of India:

The provisions of the Act and the impugned Order provide for a requirement of a permit in order to transport by rail cotton textiles. Article 19(1)(f) and (g) of the Indian Constitution provides for the right to practise any profession or carry on any trade. The appellant argued that the requirement of a permit contravenes these fundamental rights of a person who is engaged in the business of purchase and sale of cotton textiles is in contravention to these fundamental rights.
The appellant argued that under Section 3 of the Act, unregulated and arbitrary power has been given to the Textile Commissioner to refuse or to grant a permit. Therefore, Section 3 of the Act is ultra vires of the Legislation owing to the excessive delegation of powers by the latter. Section 4 of the Act was further attacked on the ground that the Central Government is empowered to delegate its own power to make orders under Section 3 to any other authority, hence, amounting to further delegation of the powers by the delegate.
Section 6 of the Act provides an overriding effect to the Orders framed under the Act with respect to other enactments. This Section was held to be invalid by the High Court. The appellant contended that since Section 6 of the Act has found ultra vires, Section 3 of the Act should be declared ultra vires too since both Section 6 and Section 3 of the Act are inextricably connected.
Sections 27, 28, and 41 of the Indian Railways Act, 1989 provide for the use of rolling stock by the railway administration; delegation of powers by the Central Government; and the burden of proof for charging lower rates for one trader is on the railway administration, respectively. The appellant argued that Clause (3) and (4) of the impugned Order empowers the Textile Commissioner to direct a carrier to close the booking or transport is in direct contravention with Sections 27, 28 and 41 of the Indian Railways Act, 1989. The provisions of Sections 27, 28, and 41 of the Indian Railways Act, 1989 were contravened by the impugned Order and, thus it must be declared void in all respects.

Respondent

The respondent made the following contention before the Apex Court of India:

The respondent appealed against the judgement pronounced by the High Court stating that Section 6 of the Act was unconstitutional.

Judgement in Harishankar Bagla vs. State of Madhya Pradesh (1954)

While deciding whether the requirements of the provisions of Sections 3 and 4 of the Act and the impugned Order are in contravention of Article 19(1)(f) and (g) of the Indian Constitution, the Supreme Court observed that during the period of emergency, it was imperative to control the production, supply and distribution of the essential commodities. Section 2 of the Act mentioned the list of essential commodities. Hence, the requirement for a permit to transport such essential commodities cannot be said to be an unreasonable restriction on the fundamental rights of the citizens as mentioned under Article 19(1)(f) & (g) of the Indian Constitution as Article 19(5) provides for imposing restrictions which are in the public interest.

Section 3 of the Act conferred power upon the Central Government to make rules in order to regulate the “maintaining or increasing supplies of any essential commodity, or for securing the equitable distribution and availability at fair prices”. Section 6 of the Act provided that the rules framed under Section 3 of the Act will have an overriding effect on the existing statutes. The Supreme Court after considering the prevalent principles of law upheld the validity of Sections 3 & 6. The Court decided that the policy underlying the Act was adequately formulated under Section 3 of the Act providing a comprehensible and sufficient measure for exercising the provided powers.

It was contended that as per the provisions of Section 4 of the Act, the delegate has been authorised to further delegate its powers as provided under Section 3 of the Act. The Court decided that Section 4 provides for classes of persons to whom the Central Government can delegate or sub-delegate the powers. Hence, it is not a correct claim to say that instrumentalities have not been selected by the Legislature itself.

The Court held that Section 6 does not provide for delegation of amending power. Section 6 provides the power to bypass the conflicting laws. It was decided that it was not the rules that had overridden the existing statute, rather it was the Parliament itself that had given the parent legislation the authority to override the other existing statutes. Hence, even if it is considered that Section 6 provides for the Amendment of the statutes, it is attributable to the Legislature rather than to the Executive. The Court held that there is no delegation in the provisions of Section 6 and, therefore, Section 6 is constitutional.

While deciding the next contention that the provisions of the impugned Order operate as an implied repeal of Sections 27, 28 and 41 of the Railways Act, the Court decided that there are no such provisions in the impugned Order that imply that it overrides or supersedes the provisions of the Railways Act. The Clauses of the impugned Order merely supplement the relevant Sections of the Railways Act and do not supersede them.

Ultimately, the Supreme Court held that Sections 3, 4 & 6 of the Act are Constitutional and the impugned Order is also constitutional and valid.

Relevant judgements referred to in Harishankar Bagla vs. State of Madhya Pradesh (1954)

Judgements referred to in the case are discussed as follows:

In Messrs. Dwarka Prasad Laxmi Narain vs. The State of Uttar Pradesh and two others (1954), the Supreme Court observed that while the State Legislature of Uttar Pradesh has the efficiency to make an Order, the same Order has to pass the test enshrined in Part III of the Indian Constitution. If the said Order fails to stand the test, the Court has the power to strike it down. If any legislative Order vests an Executive Authority with the right to monitor any trade or business, the right must not be unfettered or arbitrary in nature as that would infringe upon the rights of the citizens guaranteed under Article 19(1)(g) of the Indian Constitution.

Furthermore, the Court stated that the Legislature cannot grant and issue licences since its hands are full. While the Legislature has to delegate this power to any Executive authority, the discretion given to the latter must be tested against some procedure provided by the concerned Order to ensure that discretion is not abused. If no such test or procedure is laid down and the Executive authority is left unchecked to exercise its discretion in this matter, its actions may include elements of personal biases or animosity that would impinge upon Article 14 which will later affect their freedom to carry out any trade of business as an Indian citizen.

Ultimately, the Court ruled that Clause 3(1) of the impugned Order granted unfettered power to the State Controller that was violative of both Article 14 and Article 19(1)(g) of the Indian Constitution.

Moreover, Clause 4(3) of the impugned Order gave unbridled and uncontrolled power to the Executive authority to grant or revoke the licence for selling coal. This too was declared to be violative of both Article 14 and Article 19(1)(g) of the Indian Constitution. Since these two Clauses could not be severed to make the rest of the Order functional, the entire Order was deemed void.

In Panama Refining Co. vs. Ryan (1935), the Supreme Court held that while enacting the Order, the President had constituted the power of the Legislature that Congress has no right to delegate in the first place. It explicitly stated that Congress cannot ever delegate powers of a legislative nature to any other branch of the Government for the sustenance of the democratic system of the Government.

In George Walkem Shannon & Ors. vs. Lower Mainland Dairy Products Board and Anr. (1938), the case revolved around the validity of the relevant act which allowed even sub-delegation of legislative power. The objection was raised against the delegation of such power by the legislative body to the Lieutenant Governor in Council who further delegated it to the Marketing Boards. While delivering the judgement for the Privy Council, Lord Atkins noted that such an objection towards the delegation of the sub-delegation by the Provincial Legislature was subversive meaning disruptive of the rights enjoyed by the latter. Hence, the Privy Council upheld the enactment.

In Re: Delhi Laws Act case (1951), the majority judgement stated that the Legislature does not have the right to delegate its essential powers. The Executive authority cannot be responsible for declaring the policy of the law as it is the responsibility of the legislative body. Furthermore, it is also the Legislature’s responsibility to prescribe the standards that help the Executive authority, to which the powers have been delegated, in the seamless implementation of the law.

Analysis of the case

The Court can adjudge the validity of any delegated legislation on the ground of it being ultra vires or intra vires the parent legislation. The doctrine of ultra vires is one of the fundamental principles of Administrative Law. This doctrine provides that any authority is empowered to exercise its functions only to the extent it has been conferred upon him by any law. When the authority exercises its functions within the confinement of its conferred power, it is called that the action of the authority is intra vires and completely valid. However, when an authority exceeds the limit of its conferred powers, the action of the authority is called ultra vires. Once a delegated legislation has been adjudged as ultra vires, it becomes void and, hence, unenforceable.

The Supreme Court in the case of The Edward Mills Co. Ltd., Beawar & Ors. vs. The State of Ajmer & Anr. (1954) discussed that in cases where the Legislature has been empowered to frame laws in order to regulate a particular subject, there must be an implied power to frame rules incidental to such powers. It is one of the elementary principles of Constitutional law that the granting of power includes everything imperative to exercise such power. A Legislature is not empowered to disinvest itself from its essential legislative function and bestow the same upon an extraneous authority. The legislature is bestowed upon the primary obligation of law-making, however, the delegation may be transferred to as a subsidiary or an ancillary measure.

In the case of Vasantlal Maganbhai Sanjanwala (1960), the Apex Court held that the extent to which delegated legislation is permissible is now well-settled. The Legislature is not empowered to delegate its essential legislative function in any circumstance. Prior to delegating its subsidiary powers, the Legislature must ensure that it has provided the legislative policies and principles. The Legislature is under an obligation to provide guidance for discharging the said policies and principles.

Even when the Legislature is empowered to delegate, sufficient safeguards should be provided by it. In light of the same, the Supreme Court in the case of Harakchand Ratanchand Banthia & Ors. vs. Union of India & Ors. (1969) decided that Section 5(2)(b) of the Gold Control Act, 1968, which empowered the Government to frame rules to regulate the manufacture, distribution, use, disposal, consumption, etc. of gold, was unconstitutional as it failed to provide any sufficient safeguards.

The Supreme Court in the case of the Registrar of Cooperative Societies, Trivandrum & Anr. vs. K. Kunjabmu & Ors. (1979) while discussing the power to delegate held that the Parliament and the State Legislatures are bestowed with the power to frame laws upon the subjects entrusted to them by the Constitution. This power to legislate also includes the power to delegate. However, excessive delegation can amount to abdication. The Court held that unlimited delegation may prompt the delegates to act in an unchecked manner or go overboard with the powers conferred on them.

The Supreme Court in the case of General Officer Commanding-In-Chief & Anr. vs. Subhash Chandra Yadav & Anr. (1988) held that when a statute provides for rulemaking power and subsequent to that power, rules have been made, then such rules form part of the statute. Therefore, these rules have statutory force. However, in order to have these rules in statutory force, two conditions must be satisfied, that is (1) the rules must be in conformity with the parent legislation under which it has been framed; (2) the rule-making authority has the power and authority to frame the rules. Consequently, if any rule has failed to conform with any of these two conditions, it becomes void.

The Supreme Court in the case of The Consumer Action Group & Anr. vs. State of Tamil Nadu & Ors. (2000) discussed that when a statute confers any power to delegate on any other statutory authority, however, wide the discretion may be, the delegatee must exercise those powers within the ambit of reasonableness and such exercise of power must stand the test of judicial scrutiny. The greater the delegated power, the greater the amount of caution should be exercised.

In a dynamic society, the Legislature cannot foresee all the multifaceted issues. Hence, in order to handle the complex and detailed facets of governance, delegation of rule-making power is quintessential. This delegation empowers the Executive to frame rules, by-laws or regulations within the ambit of the parent legislation. However, every power comes with a great sense of responsibility. Hence, while delegating the rule-making power, the Legislature must provide for certain stringent control in order to ward off misuse of power. Judicial review, parliamentary control, procedural safeguards, committee oversight, etc. are certain safeguards that collectively ensure that the delegated legislation is transparent and intra vires the parent legislation.

Conclusion

The judicial history post-independence is peppered with examples of delegated legislation where Courts have assumed different positions depending upon the facts and circumstances of the case. While in some cases the Courts have supported the Legislature’s act of delegating its powers, in other cases they have taken a critical approach towards such a move and struck it down as a whole.

Just as a sword is a double-edged weapon, so is delegated legislation. It can be a boon for the Legislature in these trying times where it is working tirelessly to address the dynamic challenges posed by socio-economic problems, it can be a bane too in places where the Legislature oversteps its boundaries and ends up delegating essential legislative functions instead of the ancillary functions necessary for carrying out the policy of the Act. Such delegation when not scrutinised may entrust the Executive with unfettered powers to act arbitrarily and imbalance the powers assigned to every pillar of the democracy.

It must be noted that even when the Legislature delegates certain functions to the Executive that must be carried out on behalf of the former, the Executive cannot ever supersede the authority of the Legislature or act supreme in such matters. The Legislature has absolute authority to revoke such delegate legislation as and when it deems fit.

Frequently Asked Questions (FAQs)

What amounts to essential legislative functions?

Primarily, essential legislative functions are the core responsibilities of the Legislature that cannot be delegated to any other authority. Enacting laws, declaring policy and establishing the framework of the enacted laws are some of the key elements of essential legislative functions.

Can the essential legislative functions be delegated by the Legislature?

No, the Legislature cannot delegate its essential legislative functions to any other authority. However, for efficient implementation, certain regulatory or administrative functions can be delegated to the Executive by the Legislature. While delegating, the Legislature is bound to provide certain guidelines and limits on the delegated powers.

What is the meaning attached to the doctrine of delegation?

The doctrine of delegation simply implies the delegation of legislative powers from the Legislature to the Executive. This allows the Legislature to delegate legislative powers (except essential legislative functions) to the Executive to authorise them to frame delegated legislation. These delegated legislations can be in the form of orders, regulations, or bylaws. For proper delegation, the Legislature provides for clear standards and limitations within the parent legislation itself.

What is the importance attached to delegation of legislative power?

It is unfeasible for the Legislature to foresee all the complexities that might arise in the future due to changes in circumstances. In order to fill this void, the Legislature can delegate certain legislative powers to effectively implement the laws and respond to the changing circumstances.

What is the role of the judiciary in ensuring that the delegation of legislative power is intra vires the permissible limits?

Judicial review is one of the potent mechanisms through which the judiciary keeps a check and balance to ensure that the delegation of legislative power falls within the ambit of the permissible limits. Whenever a case comes before the Court challenging the validity of any such delegation, the Courts decide the same while keeping in mind the laws.

Is challenging the validity of delegated legislation permissible?

Yes, delegated legislation can be challenged on the ground of it being ultra vires the parent legislation. Other grounds for challenge are the delegated legislation being unreasonable or arbitrary, procedural impropriety, and absence of safeguarding measures.

What is the relation between the doctrine of separation of powers and delegated legislation?

The doctrine of separation of powers ensures that there are appropriate checks and balances between the acts of the Legislature and the Executive. It prevents the abdication of essential legislative functions. It empowers the judiciary to take any safeguarding measures to review the scope of the delegated legislation.

What are the measures that can be taken by the Legislature to ensure appropriate delegation of legislative power?

In order to ensure the appropriate delegation of legislative powers, the Legislature can provide specific guidelines defining the scope, procedural guidelines and policy objectives. The Legislature can periodically review the rules and can also reserve the power to revoke or modify the delegated legislation in case of abuse of power.

Is the Executive empowered to frame a new law under delegated power?

Framing laws fall within the exclusive jurisdiction of the legislation. Therefore, the Executive cannot frame a new law under the delegated power. The Executive can only frame rules and regulations for effective implementation of the parent legislation.

What happens when a Court declares a delegated legislation as unconstitutional?

Once a Court finds that a delegated legislation is unconstitutional, it can strike down the delegated legislation. The Court is empowered to decide whether the invalidation of the delegated legislation will have a retrospective operation. The Court can also provide for certain remedies in favour of those who have been affected by the impugned delegated legislation.

What are the examples of delegated legislation?

Section 92 of the Food Safety and Standards Act, 2006 empowers the Food Safety and Standards Authority of India to make regulations within the scope of the Act to give effect to its proper implementation.

What are the basic differences between the delegation of legislative power and the abdication of legislative power?

The basic distinction between delegation of legislative power and abdication of legislative power is the amount of control retained by the Legislature over the law-making procedure. Delegation of legislative power, except the essential legislative function, is allowed. However, when the Legislature transfers its essential legislative function to the Executive, it amounts to an abdication of legislative power, which is unconstitutional.

What are the landmark judgments of the doctrine of delegation of legislative powers in India?

Following are the landmark judgments related to the doctrine of delegation in India:

In re the Delhi Laws Act, 1932, the Ajmer-Merwara (Extension) vs. The Part C States (Laws) Act, 1950 (1951)
Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Anr. vs. Union of India & Ors. (1959)
Harishankar Bagla & Anr. vs. The State of Madhya Pradesh (1954)
Avinder Singh Etc vs. State of Punjab & Anr. (1978)

References

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