Constitutional Validity of Delegated Legislation

In one line

The question is whether a legislature which has been given the power to make law may hand part of that job to somebody else, and the Indian answer is yes, but not the essential part.

In the words a student can write in an exam: the Constitution vests legislative power in Parliament and the State legislatures by Articles 245 and 246, and the question of the constitutional validity of delegated legislation is whether a body so entrusted may delegate that power to the executive. The Supreme Court answered the question in the Delhi Laws Act reference: delegation is permissible, because a modern legislature cannot function without it, but the legislature must itself determine the legislative policy and formulate it as a rule of conduct, and it cannot delegate that essential legislative function or abdicate its own position.

Why there is a problem at all

Two maxims and one constitutional argument produce the difficulty, and the answer has to meet all three.

The maxim delegatus non potest delegare means that a person to whom power has been delegated cannot delegate it further. If the people, through the Constitution, delegated legislative power to Parliament, Parliament cannot pass it on.

The separation of powers argument is that legislative power is vested in the legislature, so the executive exercising it is exercising a function that belongs to another organ: [Separation of Powers].

The democratic argument is that law made by an unelected department has not been consented to by the governed.

Against these stand the practical reasons in [Delegated Legislation and Why It Grew]. Every legal system has had to find a compromise, and the American compromise is the requirement of an intelligible principle, while the English position is that Parliament being sovereign may delegate as widely as it wishes. India's compromise came out of a single reference in 1951.

The Indian position: the Delhi Laws Act reference

This is the foundation case for the whole of Module II. It is long, there are seven separate opinions, and the standard student mistake is to state a single ratio it does not have. What can be stated is the proposition the later cases have taken from it.

Facts. In re The Delhi Laws Act, 1912, AIR 1951 SC 332, was a reference by the President under Article 143(1), which allows the President to refer a question of law or fact of public importance to the Supreme Court for its opinion. Doubts had arisen after a decision of the Federal Court about laws delegating legislative power to the executive, and three provisions were referred.

• Section 7 of the Delhi Laws Act 1912 allowed the Provincial Government, by notification, to extend to Delhi, with such restrictions and modifications as it thought fit, any enactment in force in any part of British India.
• Section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947 did the same for Ajmer-Merwara.
• Section 2 of the Part C States (Laws) Act 1950 allowed the Central Government to extend to any Part C State, with such restrictions and modifications as it thought fit, any enactment in force in a Part A State, and further provided that an enactment so extended might provide for the repeal or amendment of any corresponding law then applicable to that Part C State.