Excessive Delegation: Permissible and Impermissible Delegation

In one line

Delegation becomes excessive, and therefore unconstitutional, when the legislature leaves the delegate to decide the policy instead of deciding it itself.

In the words a student can write in an exam: the doctrine of excessive delegation holds that although a legislature may delegate the power to make rules, it may not delegate its essential legislative function, which is the determination of the legislative policy and its formulation as a rule of conduct; a provision which confers power without laying down any policy, standard or guideline for its exercise is void as an excessive delegation, and the test is whether the Act, read as a whole, supplies guidance by which the delegate's power is canalised.

The question the doctrine answers

The previous chapter established that delegation is permitted in India. This chapter asks the next question: how much?

The answer cannot be a quantity. There is no rule that a legislature may delegate seventy per cent of a subject and no more. What the courts ask instead is a question about kind: has the legislature done the legislating, or has it passed the legislating on?

That question is answered by looking for policy. If the Act contains the policy, the delegate is administering it, and the delegation is permissible however wide the rule making power looks. If the Act contains no policy, the delegate must invent one, and inventing policy is legislating.

The two formulations of the test

Both appear in the cases and they mean the same thing.

The essential legislative function test. From In re The Delhi Laws Act, 1912, AIR 1951 SC 332: the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct, and those essentials are the characteristics of a legislature itself.

The policy and guidelines test. Does the Act lay down a policy, and does it give the delegate a standard or guideline by which the power is to be exercised? A power which is, in the language of the cases, uncanalised, meaning without banks to keep it in a channel, is bad.

Permissible delegation

The following may be delegated, and a student should be able to list them.

1. Commencement. Power to appoint the day on which an Act, or a provision of it, comes into force.
2. Extension and application. Power to extend the operation of an Act to an area or to a class, where the Act supplies the criteria.
3. Inclusion and exclusion. Power to add to or subtract from a schedule, provided the Act states the basis on which the addition is to be made.
4. Suspension. Power to suspend the operation of a provision in stated circumstances.
5. Prescribing detail. Forms, fees, registers, returns, procedure, qualifications and the machinery of administration.
6. Modification. Power to apply an existing law with modifications, so long as the modifications do not touch the policy of the Act.
7. Removal of difficulties. Power to make orders removing difficulties in giving effect to the Act, if narrowly framed and time limited.