This article is written by Shourya Bari, a student of Jindal Global Law School.
A school student who studied, reluctantly at best, minuscule bits of political systems across the world is bound to be surprised in law school when he is taught the process of law making. He might recollect studying; a government functioning through three organs, the executive, judiciary and legislature, whose powers are separate and independent of each other. Ideally, the legislature is responsible for framing laws and the executive for executing them. However, as with other ideals in law school, this is soon brushed aside.
Transgressing the boundary of separation of powers, the executive too possesses the power of law making. But Montesquieu’s warning still rings a bell in the political mind. That is why, a balance is sought to be created to prevent abuse of power by the executive or by any of three organs for that matter.
This paper shall first address why such a balance is required in the first place; second, whether such a balance can be achieved, at least theoretically, and finally whether Indian courts have been able to strike that balance.
Why do we need a balance between separation of power and administrative law making? To put it briefly, new demands are made on the executive to cater to complicated socio – economic needs of the contemporary society and it’s necessary to assign rule making power to the executive to efficiently accomplish such ends[1]. Further, it may not be possible for a parent legislation to foresee every practical circumstance which may arise, and the executive is required to fill in those gaps in the legislation[2]. Now, with rule making power in their hands, the executive is in a position to abuse these powers. Therefore, two conflicting interests, administrative efficiency and rule of law need to be reconciled. This need for reconciliation requires an act of balance.
Ultimately, this act of balance is required to uphold the rule of law, as Justice Khanna noted in his revolutionary dissent in A.D.M. Jabalpur v. Shiv Kant Shukla[3], arbitrariness or abuse of power is the anti-thesis of rule of law. The act of balance wraps transgressed executive power with legitimacy.
Can such a balance be achieved? In order to appreciate this question, it is imperative to understand how some of the rule making powers is exercised by the executive. First, an executive may be required by the parent Act itself to bring it into operation on a specified date[4]. This confers upon the executive the discretion to decide when the law comes into force. Second, the legislature may pass a skeletal legislation and require the executive to provide the flesh[5]. The executive is required to make rules to carry out the purpose of the Act. These are examples of how the executive enjoy rule making powers. The uncomfortable question that inevitably arises is what is the extent of this rule making power?
The most common answer to this question across systems is also the most potent and theoretically sound balancing mechanism that can be adopted. In the landmark judicial pronouncement in In Re Delhi Laws Act[6], the answer can be located, that the legislature cannot delegate its essential legislative functions to the executive. In Harishankar Bagla v. Madhya Pradesh[7], the Supreme Court defined what constitutes essential legislative function. Essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.
What happens when the legislature delegates functions which essentially belong to the domain of the legislature? The scope of judicial review allows a court to strike down such a delegation. Therefore, judicial review of delegated legislation is the most crucial balancing mechanism applied.
Before the judiciary finds a reason to interfere supervision is exercised on delegated legislation. Provisions for parliamentary control exist in order to facilitate that. The parent act may provide that the rules made by the executive be placed before the parliament for scrutiny before they come into force[8]. This mechanism allows Parliament to keep a check on whether the rules are consistent with the purpose of the parent legislation. It’s important to note that, in order to curb problems arising out of an emergency situation rules made by the executive can come into effect immediately. However, the Parliament exercises its surveillance even in such situations. Such rules are placed before the Parliament on a specified date when it can amend or modify the rules.
However, as mentioned before, the primary responsibility of creating equilibrium between executive rule making and the doctrine of separation of power lies with the judiciary. On a theoretical landscape, the judiciary’s overarching power to declare delegated legislation ultravires to the Constitution of India or the parent act is assuring. However, with great power comes great responsibility. Judicial craftsmanship decides whether a nation achieves the optimum administrative efficiency, or derogates from the aspirations of rule of law. This paper shall examine several case laws to comment on the success of the Indian judiciary in living up to this aspiration.
In Harishankar Bagla v. Madhya Pradesh[9] Section 3 and Section 6 of the Essential Supplies (Temporary Powers) Act, 1946 were brought under the judicial lens. Section 3 empowered the central government to provide by order for regulating or prohibiting the production or supply of certain essential commodities ‘so far as it appears to it to be necessary or expedient for maintaining or increasing the supplies of any essential commodities’. The court upheld the guidance to the executive present in the Act for the exercise of delegated legislation to be sufficient. The concept of sufficient guidance is critical to achieve the desired balance. Guidance provided in the parent act is a tangible form of direction provided to the executive, and any deviation from such guidance can be easily detected after mapping it against the guidance.
Section 6 of the Act said that an order issued under this section would have effect notwithstanding anything inconsistent therewith contained in any previous enactment. The court upheld this section too. The court said that the impugned section did not authorize the executive to repeal the previous laws, but declared that in case of any inconsistency between the previous law and an order issued under Section 3 of the Act, the latter would prevail. This interpretation is problematic. It’s true that the executive cannot use the powers under Section 6 to repeal any previous law, and any rule made by them inconsistent with any previous law would prevail. However, in effect, this amounts to nullifying the effect of legislation by the executive. The legislature cannot empower the executive to overpower the legislature itself. That amounts to delegation of essential legislative functions. Only the legislature has power to tamper with legislations. The Supreme Court, failed to strike a proper balance by legitimizing power which the executive should not possess.
In Harishankar Bagla v. Madhya Pradesh[10], the guidance test was appropriately applied. However the Supreme Court deviated from this when it upheld Section 3 of the All India Services Act, 1951 in DS Garewal v. Punjab[11], in spite the complete absence of any guidance in the legislation. The Act provided that pending the making of new rules, the rules existing on the date on which the law was enacted were to continue and the court observed that the policy had been indicated in such existing rules. This reasoning is absurd. The question to be raised is, if the policy is present in the existing rules is to be followed, why would the legislature come up with a provision for new rules? This provision should have struck down for a complete lack of guidance. Instead the Supreme Court stuck to its inclination to uphold the provision and turned a blind eye to legal reasoning.
A similar absurdity in judicial reasoning can be noted in Bhatnagars and Co v. Union of India[12]. The Supreme Court upheld Section 3 (1) (a) of the Imports and Exports Control Act 1947 which authorized the central government to prohibit or restrict the import or export of goods of any specified description. The Act did not contain any statement of policy. The court referred to the preamble of the Defence of India Act, 1939, which was a predecessor Act providing for similar control of imports and exports.
Now, if the Defence of India Act, 1939 was sufficient why would the legislature enact a new legislation? There must have been a change in policy which fostered a need for a new legislation. Therefore, relying on the preamble of an old legislation to provide guidance to the executive under a new legislation is as harmful to the rule of law as is administering an outdated medicine to a patient.
In Harakchand v. Union of India[13], Section 5 (2) (b) of the Gold Control Act, 1968 was held to be invalid on the ground of excessive delegation. The Section authorized the administrator ‘so far as it appeared to him to be necessary or expedient for carrying out the provisions of the Act to regulate by licenses, permits or otherwise, the manufacture, distribution, transport, acquisition, possession, transfer disposal, use or consumption of gold. The court held that power was legislative in character and was not controlled either by any guidance in the Act or by a provision for legislative supervision.
This is a fine example of the court being able to strike the right balance. The powers conferred by Section 5 (2) (b) were too wide, and was mostly colored with legislative power. Specifically in the phrase ‘regulation by license, permits or otherwise’, the ambit of the term is undefined. Further, there was no guidance in the Act to construe a reasonable meaning of otherwise.
The important element of legislative supervision was highlighted in this case. Legislative supervision is a form of legislative control, and this attaches legitimacy to executive rule making. In DK Trivedi v. State of Gujarat[14], the Supreme Court upheld Section 15 (1) of the Mines and Minerals (Regulation and Development) Act, 1957. The delegation wasn’t considered to be excessive and one of the reasons to decide so was that the rules were required to be laid before the Parliament. The scope of legislative supervision is a protective covering around delegated legislation from the claws of judicial review!
In Raj Narain Singh v. Chairman, Patna Administration Committee[15] the Supreme Court conceded that ‘exactly what constitutes an essential feature (of legislative function) cannot be enunciated in general terms. Section 3 (1) (f) of the Bihar and Orissa Act empowered the local government to extend to Patna the provisions of any section of the Act subject to such modifications as it might think fit. One of the essential features of the Act was the provisions that no municipality competent to tax could be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. The court invalidated the policy of the Act as it tampered with the policy of the Act. Therefore, the court laid down the mandate on the executive to act in accordance with the policy of the parent Act.
To wrap up, the author would like to note, acknowledging the judiciary’s flawed analysis in several cases that the judiciary’s job is not to be a patient mother to a naughty child. A great degree of faith has been reposed in the executive to strike the balance themselves while framing rules, by acknowledging the provisions of the constitution and the parent act. The executive must live up to this expectation. The judiciary striking down laws for excessive delegation should be an exception. In conclusion, given the socio – economic circumstances of India, the judiciary has indeed succeeded in achieving the much-debated balance, trying their best to uphold the powers of the executive.
[1] Bharat Bank. v. Employees of Bharat Bank, AIR 1950 SC 306.
[2] S. P. Sathe, Administrative Law, LexisNexis, 7th Edn., Pg 32.
[3] AIR 1976 SC 1207.
[4] S. P. Sathe, Administrative Law, LexisNexis, 7th Edn., Pg 33.
[5] S. P. Sathe, Administrative Law, LexisNexis, 7th Edn., Pg 36.
[6] AIR 1951 SC 332; Panama Refining Company v. Ryan, 293 US 388 (1934).
[7] AIR 1954 SC 465.
[8] Harla v. State of Rajasthan, AIR 1951 SC 467.
[9] Supra Note 7.
[10] Ibid
[11] AIR 1959 SC 512.
[12] AIR 1957 SC 478.
[13] AIR 1970 SC 1453.
[14] AIR 1986 SC 1323.
[15] AIR 1954 SC 569.
