DELEGATED LEGISLATION 

DELEGATED LEGISLATION 

The term “delegated legislation'” is difficult to define. However, if defined, in a simple way, delegated legislation refers to all law-making which takes place outside the legislature and is generally expressed as rules, regulations, bye-laws, orders, schemes, directions or notifications, etc. 

Salmond defines delegated legislation as “that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority”, The term delegated legislation may be used in two senses: 

1) the exercise of law-making power by the administrative authority delegated to it by the legislature; or 

2) the actual exercise of law-making power itself in the forms of rules and regulations, etc. 

1. NEED FOR ADMINISTRATIVE RULE-MAKING 

The basis of need matrix of administrative rule-making lies in the fact that the complexities of modern administration are so baffling and intricate and bristle with details, urgencies, difficulties, and a need for flexibility that our massive legislatures may not get off to a start if they must directly and comprehensively handle legislative business in all their 

plenitude, proliferation and particularisation. 

(1) Legislation on ever-widening fronts of a modern welfare and ser- vice state is not possible without the technique of delegation. 

(2) Today, legislation has become highly technical because of the complexities of a modern government. 

(3) Ordinary legislative process suffers from the limitation of lack of viability and experimentation. 

2. CLASSIFICATION OF ADMINISTRATIVE RULE-MAKING POWER OR DELEGATED LEGISLATION 

2.1 Title-based classification

Rule, Regulations, Order, Bye-laws, Directions, Scheme 

2.2 Discretion-based classification (conditional legislation) 

Law to delegate the power to determine some factors or state of things upon which the law intends to make its own action depend. Therefore, contingent or conditional legislation may be defined as a statute that provides control but specifies that they are to go into effect only when a given administrative authority finds the existence of conditions defined in the statute itself. 

In subordinate legislation, the process consists of the discretionary elaboration of rules and regulations. The distinction between the two is of “discretion”. 

In the same manner in Tulsipur Sugar Co. Ltd. v. Notified Area Committeel5, the Supreme Court upheld the validity of a notification issued under Section 3 of the U.P. Town Areas Act, 1914 0n the ground that it is not a case of “subordinate legislation” but of “conditional legislation”. In this case by a notification under the Act, the limits of Tulsipur town had been extended to the village Shitalpur where the sugar factory of the plaintiff was situated. 

Conditional legislation is classified into three categories: 

1) statute enacted by legislature, future applicability to a given area left to the subjective satisfaction of the delegate as to the conditions indicating the proper time for that purpose; 

2) Act enforced, but power to withdraw the same from operation in a given area or in given cases delegated to be exercised on subjective satisfaction or objective satisfaction of the delegate as to the existence of requisite condition precedent; and 3) power exercisable upon the delegate’s satisfaction on objective facts by a class of persons seeking benefit of the exercise of such power to deprive the rival class of persons of statutory benefits. 

2.3 Authority-based classification (sub-delegation) 

Another classification of administrative rule-making is based on the position of the authority making the rules. Sometimes the rule-making authority delegates to itself, or to some other subordinate authority, a further power to issue rules; such exercise of rule-making power is known as sub-delegated legislation.Rule-making authority cannot delegate its power unless the power of delegation is contained in the enabling Act. 

The maxim “delegatus non potest delegare” indicates that sub-delegation of power is normally not allowable though the legislature can always provide for it. Courts have always taken the position that sub-delegation is invalid unless authorised by the parent Act.

Therefore, the maxim “delegatus non potest delegare” which means that a delegate cannot further delegate is not attracted in case of delegation by the legislature, but certainly 

applies in case of sub-delegation. 

2.4 Nature-based classification (exceptional delegation) 

(1) Normal delegation 

(a) Positive.-Where the limits of delegation are clearly defined in the enabling Act. (b) Negative.-Where power delegated does not include power to do certain things, i.e. legislate on matters of policy. 

(2) Exceptional delegation-Instances of exceptional delegation may be: (a) Power to legislate on matters of principle policy. 

(b) Power to amend Acts of Parliament of existing law. 

(c) Power conferring such a wide discretion that it is almost impossible to know the limits. 

(d) Power to make rules without being challenged in a court of law. Such exceptional delegation is also known as Henry VIII clause to indicate executive autocracy. 

The control mechanism of administrative rule-making comprises three components, namely, parliamentary control, procedural control, and judicial control. These controls will now be discussed in detail. 

4.1 Parliamentary control 

In the US, the control of the Congress over delegated legislation is highly limited because neither is the technique of laying” extensively used nor is there any Congressional Committee to scrutinise it. This is due to the constitutional structurization in that country in which it is considered only the duty of courts to review the legality of administrative rule-making. 

In England due to the concept of parliamentary sovereignty, the control exercised by Parliament over administrative rule-making is very broad and effective. 

In India parliamentary control of administrative rule-making is implicit as a normal constitutional function because the executive is responsible Parliament. 

4.1.1 Direct general control

(1) through debate on the Act which contains delegation. Members may discuss anything about delegation including necessity, 

extent, type of delegation, and the authority to whom power is delegated; (2) through questions and notices. Any Member may ask questions on any aspect of delegation of legislative powers, and if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules; (3) through moving resolutions and notices in the House. Any Member may move a resolution on motion if the matter regarding delegation of power is urgent and immediate, and reply of the government is unsatisfactory; 

(4) through vote on grant. Whenever the budget demands of a ministry are presented, any Member may propose a cut and thereby bring the exercise of rule-making power by that ministry under discussion; 

(5)through a private Member’s Bill seeking modifications in the parent Act, or through a debate at the time of discussion on the address by the President to the joint session of Parliament, Members may discuss delegation. However, these methods are rarely used. 

4.1.2 Direct special control 

This control mechanism is exercised through the technique of “laying” on the table of the House rules and regulations framed by the administrative authority. 

As mentioned earlier in this chapter in the US, the control of the Congress over the exercise of delegated legislation is feeble; however, it does not mean that the technique of “laying” is non-existent. 

In England the technique of laying is very extensively used because all the administrative rule-making is subject to the supervision of Parliament under the Statutory Instruments Act, 1946 which prescribes a timetable.” The most common form of provision provides that the delegated legislation comes into immediate effect, but is subject to annulment by an adverse resolution of either House. 

(1) Laying with no further direction-In this type of laying, the rules and regulations come into effect as soon as they are laid. It is sim- ply to inform the House about the rules and regulations. 

(2) Laying subject to negative resolution.-In this process the rules come into effect as soon as they are placed on the table of the House, but shall cease to have effect if annulled by a resolution of the House. 

(3) Laying subject to affirmative resolution.-This technique may 

take two shapes: 

(a) that the rules shall have no effect or force unless approved by a resolution of each House of Parliament; and

(b) that the rules shall cease to have effect unless approved by an affirmative resolution. 

In both these processes, it is the duty of the government to move a resolution. 

(4) Laying in draft subject to negative resolution.-Such a provision provides that when any Act contains provision for this type of laying, the draft rules shall be placed on the table of the House and shall come into force after 40 days from the date of laying unless disapproved before that period. 

(5)Laying in draft subject to an affirmative resolution.-In this type of laying, the instruments or draft rules shall have no effect unless approved by the House. 

In India, however, the consequences of non-compliance with the laying provisions depend on whether the provisions in the enabling Act are mandatory or directory. 

In Narendra Kumar v. Union of Indial05 (Narendra Kumar), the Supreme Court held that the provisions of Section 3(5) of the Essential Commodities Act, 1955 which provided that the rules framed under the Act must be laid before both Houses of Parliament, are mandatory and, therefore, clause 4 of the Non-Ferrous Metals Control Order, 1958 has no effect unless laid before Parliament. 

However in Jan Mohammad v. State of Gujarat , the court deviated from its previous stand. Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained a laying provision, but the rules framed under the Act could not be laid before the provincial legislature in its first session as there was then no functioning legislature because of World War II emergency. Nevertheless, the rules were placed on the table of the House in its second session. The court held that the rules remained valid because the legislature did not provide that the non-laying at its first session would make the rules invalid. 

In Atlas Cycle Industries Ltd. v. State of Haryana, the Supreme Court, however, held the impugned provision of law which provided that every order by the Central Government or its officer or authority shall be laid before both Houses of Parliament as soon as may be after it is made” as merely directory and did not make “laying” a condition precedent to the making of the order. According to the court, the word “shall in Section 3(6) of the Essential Commodities Act, 1955 is not conclusive and decisive of the matter, and the court is to determine the true intention of the legislature. The two considerations for regarding a provision as directory are 1) absence of any provision for meeting the contingency of the provision not being complied with; and 2) serious general inconvenience and prejudice that would result to the general public if the act of the government is declared invalid for

non-performance with the particular provision. Section 3(6) provides for simple laying in which Parliament has no power either to approve or disapprove the order. Therefore, simple laying is merely directory and non-laying would not make the order void. 

4.1.3 Indirect control 

According to Rule 223 of the Lok Sabha Rules of Procedure, the main functions of the Committee shall be to examine the following: 

● Whether the rules are in accordance with the general object of the Act. ● Whether the rules contain any matter which could more properly dealt within the Act. 

● Whether it contains imposition of tax. 

● Whether it directly or indirectly bars the jurisdiction of the court. ● Whether it is retrospective. 

● Whether it involves expenditure from the Consolidated Fund. ● be dealt 

● Whether there has been unjustified delay in its publication or ● laying. 

● Whether, for any reason, it requires further elucidation. 

If in India parliamentary control of administrative rule-making is to be made a living continuity as a constitutional necessity, it is necessary that the role of the Committees of Parliament must be strengthened, and a Separate law like the Statutory Instruments Act, 1946, providing for uniform rules of laying and publication, must be passed. The Committee may be supplemented by a specialised official body to make the vigilance of administrative rule-making more effective. 

4.2 Procedural control 

Parliamentary control over administrative rule-making is admittedly weak because legislators are sometimes innocent of legal skills. A constant search, therefore, is on for an alternative mechanism which, besides providing effective vigil over administrative rule-making, can guarantee effective people participation for better social communication, acceptance and effectivity of the rules. 

Procedural control mechanism has the potential to meet the above noted requirements for allowing specific audit of rules by those for whose consumption they are made. Procedural control mechanism operates in three 

Components: 

(I) Drafting.

The drafting of delegated legislation by an expert draftsman who is, at the same time, in a position to advise whether the proposed rules and regulations are intra vires is obviously a valuable safeguard. It is no denying the fact that, in the absence of this safeguard, in India poorly drafted rules, in many situations, create great hardship for the people by increasing avoidable litigation. Therefore, the Committee on Subordinate Legislation in India rightly recommended that the language of rules should be simple and clear and not complicated or ambiguous. 

(2) Antenatal publicity. 

The rules must first be published in draft form to give an opportunity to the people to have their say in the rule-making. 

Antenatal publicity required by the enabling Act attracts the application of Section 23 of the General Clauses Act, 1897 which requires 

(1) that the rules be published in draft form in the Gazette; 

(2) that objections and suggestions be invited by a specific date mentioned therein; (3) that those objections and suggestions be considered by the rule- making authority. 

(4) Consultation. 

(3) Consultation 

In India there is no general law which provides for prior consultation with affected persons before rules and regulations are framed by administrative authorities. Therefore, the provision of prior consultation is sometimes provided in the enabling Act itself. Such a provision if contained in the enabling Act is considered as mandatory and its violation is visited with the invalidity of rules 

Named body, administrative boards, statutory boards, interested persons (4) Post-natal publicity. 

Postnatal publicity is a necessary element in the rule-making process because the dictum that ignorance of law is no excuse is based on the 

justification that laws are accessible to the public. 

In India, there is no general law prescribing the mode of publication of rules theretore, the practice of publication differs from statute to statute.

The Supreme Court in State of Orissa v. Sridhar Kumar1 quashed the publication which had been made in a local newspaper but not in the local language. 

R.S. Pathak J (as he then was) held that having regard to the object with which a proclamation was required to be made in a local newspaper, the publication must have been in the local language of the area in which 

the newspaper circulated since the legislature attached great importance to the views of the residents to be affected by the notification. 

The Supreme Court in Harla v. State of Rajasthan1 has held that a law cannot be enforced unless published. In this case during the minority of the then Maharaja of Jaipur, the Council of Ministers was appointed by the Crown representative to look after administration. The Council by a resolution enacted the Jaipur Opium Act, 1923 which was never published in any form. One Harla was prosecuted for the contravention of this law because he was in possession of opium in more quantity than permitted. The court held that the rules of natural justice demand that the laws be published before they are enforced. 

4.3 Judicial control 

In India judicial review of administrative rule-making is subject to normal rules governing the review of administrative action. 

4.3.1 That the enabling Act is ultra vires the Constitution 

If the enabling Act is ultra vires the Constitution which prescribes the boundaries within which the legislature can act, the rules and regulations framed thereunder would also be void. The enabling Act may violate either the implied or express limits of the Constitution. 

Implied limits of the Constitution are those laid down in Delhi Laws Act, 1912,rel2″, namely, the laying down of policy and enacting that policy into a binding rule of conduct. The legislature cannot delegate its essential power to any other agency, and if it so delegates the enabling Act will be ultra vires the Constitution. In Delhi Laws Act, re, the court held the later part of clause 2 invalid because it authorised the administrative agency to repeal a law which, in the opinion of the court, is an essential legislative function. 

In the same manner in Hamdard Dawakhanal30, the court held Section 3ld) of the Drugs and Magic Remedies (Objectionable Advertisements) Act as ultra vires the Constitution because the legislature had not provided sufficient guidelines for the exercise of administrative discretion in matters of selecting a disease to be added to the schedule.

In Chintamanrao v. State of M.P157, the court held the C.P. Regulation of Manufacturers of Bidis Act, 1948 and the rules framed thereunder as ultra vires Article 19(1(g) of the Constitution which guarantees freedom of trade and profession. The impugned Act had given wide discretionary powers to the Deputy Commissioner to 

fix the agricultural season and prohibit the manufacture of bidis in the notified areas in that season. The Deputy Commissioner imposed a total ban on the manufacture of bidis. According to the Supreme Court, this amounted to unreasonable restriction on the exercise of the fundamental right and, hence, both the Commissioner’s order and the Act are ultra vires the Constitution. 

4.3.2 The administrative legislation is ultra vires the Constitution 

In Narendra Kumar19, the Supreme Court held that even if the enabling Act is intra vires, the constitutionality of delegated legislation can still be considered because the law cannot be presumed to authorise anything unconstitutional. 

(1)That it is in excess of the power conferred by the enabling Act 

(2)That it is in conflict with the enabling Act. 

In Dwarka Prasad Laxmi Narain v. State of U.P140, Section 3(1) of the U.P. Coal Control Order issued under Section 3 of the Essential Supplies (Temporary 

Powers) Act, 1946 provided that no one can carry on business in coal except under a licence. Rule 3(2)6) further laid down that the State Coal Controller can exempt any person from the licence requirement. The court held Rule 3(2)(6) as ultra vires Article i9((g) as it places unreasonable restriction by giving arbitrary powers to the executive in granting exemptions. 

In the same manner in Himat Lal K. Shah v. Commr of Policel41,the Supreme Court held Rule 7 framed under the Bombay Police Act, 1951 as ultra vires Article 19(1){b). Section 33(7) of the Bombay Police Act, 1951 had authorised the Commissioner of Police to make rules for the regulation of conduct and behaviour of assemblies and processions by prescribing the routes and time of processions. Rule 7 framed thereunder provided that no public meeting will be held without the previous permission of the Commissioner of Police. The rule was held ultra vires on the ground that the arbitrary discretion vested in the administrative agency in granting or refusing permission amounts to unreasonable restriction on the exercise of the treedom of speech and expression. 

(3)That it is in conflict with the prescribed procedure of the enabling Act.-

Sometimes the enabling Act lays down a procedure which must be followed by the administrative authority while exercising rule-making power under it. If the procedure is violated, the rules may be declared invalid. 

In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur73, the U.P. Municipalities Act, 1916 provided that the rule in the draft form must be published in the local Hindi daily. In this case the draft rules were published in an Urdu daily. The court did not accept the contention of invalidity of rules arising out of a violation of a 

mandatory procedure clause on the ground that what was important was the publication and not the Hindi daily. 

(4) That it is unreasonable, arbitrary and discriminatory. 

In Air India v. Nargesh Meerza, the Supreme Court quashed the service regulation framed by Air India which had provided for the termination of services of an air hostess on the first pregnancy. The court held this regulation as most unreasonable and arbitrary and interfering with the ordinary course of human nature, and hence violative of Article 14 of the Constitution. 

(5)That it is mala fide. 

Administrative rule-making can be challenged on the ground of bad faith or ulterior purpose. The Drugs and Cosmetics Act, 1940 empowers the government to prescribe the standards of quality of drugs and cosmetics. Rule 150-A framed by the Government of India under the said Act required manufacturers of eau de cologne to add one per cent of diethyl phthalate, a poisonous substance, to render the product unpotable. The Bombay High Court held the rule invalid on the ground that the government cannot enforce its prohibition policy in the guise of prescribing standards 

The term “constitutionality of administrative rule-making” means the permissible limits of the constitution of any country within which the legislature, which as the sole repository of law-making power, can validly delegate rule-making power to other administrative agencies.

In England, Parliament is supreme and, therefore, unhampered by any constitutional limitations, Parliament has been able to confer wide legislative powers on the executive. 

The US Supreme Court has observed that the doctrine of separation of powers has been considered to be an essential principle underlying the Constitution, and that the powers entrusted to one department should be exercised exclusively by that department without encroaching upon the powers of another. Therefore, legislative powers cannot be delegated. 

Panama Refining Co. v. Ryan is a case based on Section 9 of the National Industrial Recovery Act, 1933. Section 9 authorised the President to prohibit the transportation in inter-State and foreign commerce, petroleum and the products thereof produced or withdrawn from storage in excess of any State law or valid regulation. The President authorised the Secretary of the Interior to exercise all powers under Section . Regulation V provided that every purchaser and shipper should submit the details of the purchase and sale of petroleum. Panama Refinery Company challenged Section 9 of the National Industrial Recovery Act, 1933 as unconstitutional delegation of legislative powers. The Act laid down that the policy of the law is “to encourage national industrial recovery” and “to foster fair competition”. The US Supreme Court held the Act as unconstitutional on the ground that the adequacy of prescribed limits of delegation of legislative power is not satisfied by laying down a vague standard for administrative action. Hughes CJ observed that an executive order must, in order to satisfy the constitutional requirement, show the existence of particular circumstances and conditions under which the making of such an order has been authorised by the Congress. 

3.1 Constitutionality of administrative rule-making in India 

The question of permissible limits of the Constitution within which law- making power may be delegated can be studied in three different periods for the sake of better understanding. 

3.1.1 When the Privy Council was the highest court of appeal 

The Privy Council was the highest court for appeal from India in constitutional matters till 1949 

R. v. Buraah An Act was passed in 1869 by the Indian legislature to remove Garo Hills from the civil and criminal jurisdiction of Bengal, vesting the powers of civil and criminal administration in an officer appointed by the Lieutenant Governor of Bengal. The Lieutenant

Governor was further authorised by Section 9 of the Act to extend any provision of this Act with incidental changes to Khasi and Jaintia Hills. One Burah was tried for murder by the Commissioner of Khasi and Jaintia Hills and was sentenced to death. The Calcutta High Court declared Section 9 as unconstitutional delegation of legislative power by the Indian legislature on the ground that the Indian legislature itself is a delegate of British Parliament, therefore, a delegate cannot further delegate. The Privy Council on appeal reversed the decision of the Calcutta High Court and upheld the constitutionality of Section 9 on the ground that it is merely a conditional legislation. The decision of the Privy Council was interpreted in two different ways. One interpretation was that since the Indian legislature is not a delegate of British Parliament, there is no limit on the delegation of legislative functions. 

3.1.2 When Federal Court became the highest court of appeal 

Federal Court in Jatindra Nath Gupta v. Province of Bihar (Jatindra Nath). In this the validity of Section 1(3) of the Bihar Maintenance of Public Order Act, 1948 was challenged on the ground that it authorised the provincial government to extend the life of the Act for one year with such modifications as it may deem fit. The Federal Court held that the power of extension with modification is unconstitutional delegation of legislative power because it is an essential legislative act. 

3.1.3 When Supreme Court became the biggest court of appeal 

Re Delhi Laws Act is said to be the Bible of delegated legislation. Seven judges heard the case and produced seven separate judgments. The case was argued from two extreme positions. M.C. Setalvad argued that the power of legislation carries with it the power to delegate and unless the legislature has completely abdicated or effaced itself, there is no restriction on delegation of legislative powers. The learned Counsel built his arguments on the theory of separation of powers and “delegatus non potest delegare”, and tried to prove before the court that there is an implied prohibition against delegation of legislative powers. The Supreme Court took the via media and held: 

(1) Doctrine of separation of powers is not a part of the Indian Constitution. (2) Indian Parliament was never considered an agent of anybody, and therefore the doctrine of “delegatus non potest delegare” has no application. 

(3) Parliament cannot abdicate or efface itself by creating a parallel legislative body. (4) Power of delegation is ancillary to the power of legislation. 

(5) The limitation upon delegation of power is that the legislature can-not part with its essential legislative power that has been expressly vested in it by the Constitution. Essential legislative power means laying down the policy of the law and enacting that policy into a binding rule of conduct. 

On the basis of this reasoning, the Supreme Court came to the conclusion that (1) Section 7 of the Delhi Laws Act, 1912 is valid;

(2) Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 is valid; and 37. AIR 1951 SC 332. 

(3) Section 2 of the Part “C” States (Laws) Act, 1950 is valid except that part of the section which delegated power of repeal and modification of legislative policy, as it amounted to excessive delegation of legislative powers. 

3.2 Excessive delegation is unconstitutional 

It is now firmly established that excessive delegation of legislative power is unconstitutional. The legislature must first discharge its essential legislative functions (laying down the policy of the law and enacting that policy into a binding rule of conduct) and then can delegate ancillary or subordinate legislative functions which are generally termed as power “to fill up details”. After laying down policy and guidelines, the legislature may confer discretion on administrative agency to execute the legislative policy and to work out details within the framework of the policy and guidelines. 

Whether a particular legislation suffers from “excessive delegation” is a question to be decided with reference to certain factors which may include 

1) subject-matter of the law, 

2) provisions of the statute including its Preamble, 

3) scheme of the law 

4) factual and circumstantial background in which the law is enacted. 

3.3 What is an essential legislative function and where is the policy of the law to be found 

Hamdard Dawakhana v. Union of India** (Hamdard Dawakhana)- Parliament passed the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 to check the mischief being done to innocent patients suffering from certain incurable diseases through advertise ments claiming magic remedies for such diseases. Section 3 laid down alist of diseases for which advertisements were prohibited and authorised the Central Government to include any other disease in the list. This isthe first case in which the Supreme Court struck down an Act on the ground of excessive delegation of legislative powers. The court held that nowhere had the legislature laid down any policy for guidance to the government in the matter of selection of diseases for being included in the list. The decision of the court is certainly not in line with its earlier approaches because the clear mention of certain diseases in the list could have supplied the standard and criteria for the selection of other diseases. Furthermore, the title of the Act lays down sufficiently the policy of the Act.

Harishankar Bagla v. State of M.P.2 (Harishankar Bagla)-Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 authorised the Central Government to make rules for the purpose of maintaining or increasing supplies of essential commodities and for securing equitable distribution at fair price. Section 6 further provided that the orders made thereunder shall have effect notwithstanding anything contained in any law for the time being in force. The Supreme Court held the delegation valid on the ground that Section 3 lays down the legislative policy with sufficient clarity within which the government can operate. The court also upheld the validity of Section 6 on the ground that it is not a delegation of power to repeal but only an attempt to bypass difficulty. 

According to K.K. Mathew J, this effort on the part of the Supreme Court to somehow find the legislative policy from somewhere was undignified for any judicial process. He observed that “… the hunt by court for legislative policy or guidance in the crevices of a statute or nook and cranny of its preamble is not an edifying spectacle”54, In his dissenting opinion in Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Commisoners of sale ST” (Gwalior Rayon), he propounded a new test to determine the constitutionality of delegated legislation. According to him, so long as a legislature can repeal the enabling Act delegating law-making power, it does not abdicate its legislative function and, therefore, the delegation must be considered as valid no matter howsoever broad and general the delegation may be. However, the majority led by Khanna J did not agree to this “abdication test” and reiterated the already well-established test of “policy and guidelines”. Nevertheless, Mathew J ignoring the majority opinion applied his own test in 1975 in M.K. Papiah v. Excise Conmr(Papiah). Thus, the court’s decisions in Gwalior Rayon and Papiah took two different and conflicting views on the question of constitutionality of delegated legislation. Added to this, the Supreme Court’s decision in Registrar of Cooperative Societies v. K. Kunjabmu” (Registrar, Coop. Societies) though upholds the “policy and guideline” test, yet creates an impression that this test is tentative and can be reopened. The court observed: 

We do not wish in this case to search for the precise principles decided in the Delhi Laws Act case, nor to consider whether N.K. Papiah beats the final retreat from the earlier position. For the purposes of this case we are content 

To accept he ‘policy’ and ‘guidelines’ theory ..3 

3.4 Norms of jurisprudence of delegated legislation emerging from the decisions analysed 

The power of delegation is a constituent element of the legislative power as a whole under Article 245 of the Constitution and other relative articles. Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern legislation.

Essential legislative functions cannot be delegated by the legislature. 1. Essential legislative functions mean laying the policy of the Act and enacting that policy into a binding rule of conduct. In other words, the legislature must lay down legislative policy and purpose sufficient to provide a guideline for administrative policy of law may be express or implied and can the history, preamble, title, scheme of the Act or rule-making. The be gathered from object and reason clause, etc. 

2. After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however numerous and significant they may be. 3. In order to determine the constitutionality of the delegation of legislative powers, every case is decided in its special setting. 

4. Courts have travelled to the extreme in holding very broad general statements as sufficient policy of the Act to determine the question of constitutionality. 5. There are various forms of administrative rule-making. However, the 

parameter for determining the question of constitutionality is the same, namely, the legislature must lay down the policy of the Act. 

6. The delegated legislation must be consistent with the parent Act and must not violate legislative policy and guidelines. 

7. Delegatee cannot have more legislative powers than that of the delegator 8. Sub-delegation of legislative powers in order to be valid must be expressly authorised by the parent Act. 

9. The delegated legislation in order to be valid must not be unreason- able and must not violate any procedural safeguards if provided in the parent Act. 10. In determining the validity of delegated legislation, if it is within the competence of the authority, motive of the delegated legislation is not taken into account. 

11. When the law allows delegation of administrative power by an officer to another officer subordinate to him, he does not divest himself of all the power. The delegating authority will retain not only the power to revoke the grant but also the power to act con currently on matters within the area of delegated authority, except insofar as it may already have bound himself by an act of the delegate. 

12. While deciding on the constitutionality of delegated legislation, court may take into consideration relevance of context and back- ground in which power of rule-making has been exercised. 

13. Court has imported the principle of “proportionality” in determining the constitutionality of delegated legislation especially in cases involving serious violation of public interest where this new doctrine may produce better results. 

14. If the parent Act is repealed, notification issued under it would also stand repealed unless saved by the repealing Act.

15. Rules and regulations validly made by the administrative authority become part of the parent Act.” 

16. Court decision cannot be nullified by the administrative authority by changing its rules. It would amount to contempt of court. 

17. Power to repeal and amend (in essential respect) cannot be delegated. 

3.5 Constitutionality of delegation of the taxing power 

Power to tax is an inherent power of any State. It is also considered as an essential legislative function. Power to tax can be exercised not only for raising revenue for the State but also for regulating the social, economic, or political structure of the country. 

From an analysis of the above case-laws, the following general principles can be developed: 

(1) Taxing power is an essential legislative power that cannot be delegated. (2) However, the power to levy tax can be delegated only subject to the legislature itself exercising essential legislative function, namely, 

laying down the policy of the Act which permits sufficient guide line tor the imposition of tax. 

(3) Wide expressions like “for the purpose of the Act” have been held to be sufficient guidelines for the imposition of the tax. 

(4) Wide expressions like “for the purpose of the Act” are sufficient policy matrix only when power is delegated to a responsive and representative authority. 

(5) Within these limitations, the following powers may be validly delegated: 

(a) Power to exempt any item from tax. 

(6) Power to bring certain items within the ambit of tax. 

(c) Power to determine rate of tax within the minimum and the maximum laid down in the Act. 

(d) Power to determine rate of tax where no maximum and minimum limits are prescribed. 

(e) Power to select different rates of tax for different commodities, provided there is a rational justification for it. 

(f)A charge under a taxing statute can only be under the Act and not under the rules.