Constitutional Validity of Delegated Legislation

Held. By a majority, the first two provisions were wholly intra vires. The later portion of section 2 of the Part C States (Laws) Act 1950, so far as it empowered the extension of an enactment providing for the repeal or amendment of a law other than a Central Act already applicable in the Part C State, was held ultra vires. Kania CJ stated the test which has governed ever since: 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. Once the legislature has made its law, every detail for working it out and for carrying the enactment into operation may be left to a subordinate agency; that kind of so-called delegation is different in essence, because it does not involve delegating the power to determine policy. He added that an abdication by a legislature need not amount to complete effacement of itself, and may be partial.

Why it matters. Three propositions come out of it and they are what a student must be able to state.

1. Delegation is constitutionally permissible in India. The strict American non-delegation doctrine was not adopted.
2. The essential legislative function may not be delegated. That function is the determination of policy and its formulation as a rule of conduct.
3. The legislature may not abdicate, and abdication may be partial. Conferring on a subordinate authority the power to repeal or amend existing law goes beyond working out detail.

What follows from the case

Delegation is permitted because the Indian legislature is not a delegate in the ordinary sense

A point often missed. Indian legislatures derive their power from Articles 245 and 246 of the Constitution and, within their field, that power is plenary, meaning as full as the power of the British Parliament within its own sphere. A plenary legislature is not an agent of anybody, so delegatus non potest delegare does not apply to it in its strict form. That is the doctrinal answer to the first objection.

But the power is not unlimited, because the Constitution vests it in a named body

The limit is not the maxim; it is that the Constitution has entrusted law making to an elected legislature. If that legislature could pass the whole function to a department, the constitutional scheme would be defeated by consent. Hence the prohibition on delegating the essential function, and on abdication.

Two tests, and they are the same test

Later cases express the limit in two ways, and students should know they are two formulations of one idea.

• The essential legislative function test: has the legislature itself determined the policy and formulated it as a rule of conduct, leaving only the working out?
• The policy and guidelines test: does the Act lay down a policy, and does it give the delegate a standard or guideline by which to exercise the power?

Both ask whether the legislature has done the legislating and left the administration to administer.

Where the policy may be found

A frequent examination point, and a practical one. The guidance need not be in the section conferring the power. A court will look at:

1. The preamble of the Act, which states its object.
2. The long title.
3. The scheme of the Act read as a whole, including the definitions and the substantive provisions.
4. The provision conferring the power itself, including any conditions in it.
5. The Statement of Objects and Reasons, for the purpose of understanding the mischief, though not to construe the words.

So an Act is not bad merely because the rule making section is short. The question is whether policy can be found anywhere in the Act.

The limits, stated as a list

Delegated legislation is constitutionally invalid where:

1. The parent Act delegates the essential legislative function, that is, leaves the policy to be settled by the delegate.
2. The parent Act amounts to an abdication by the legislature, including where it empowers the delegate to repeal or amend existing laws without limit.
3. The parent Act or the rule violates a fundamental right, since a rule is "law" within Article 13(3)(a).
4. The parent Act is beyond the legislative competence of the legislature under the Seventh Schedule, in which case everything under it falls with it.
5. The delegate exceeds the power conferred, which is ultra vires the Act and is treated in [Judicial Control over Delegated Legislation].

Distinguish the first two from the fifth. Points 1 and 2 attack the parent Act; point 5 attacks the rule. A student who answers a question about the validity of a rule by discussing excessive delegation has attacked the wrong instrument, and the reverse mistake is just as common.

A worked example

The State legislature passes the Maharashtra Essential Commodities Distribution Act. Compare four versions of its rule making section.

Version A. "The State Government may make rules for carrying out the purposes of this Act." The Act itself defines essential commodities, states in its preamble that its object is to secure equitable distribution at fair prices, and lays down the scheme of licensing and the offences. Valid. Policy is in the Act; the rules work it out.

Version B. "The State Government may, by notification, declare any commodity to be an essential commodity." The Act gives no criterion. Doubtful, and probably bad. The choice of what is essential is the policy question, and it has been left entirely to the delegate. It would be saved if the Act said "any commodity which in the opinion of the State Government is essential to the life of the community", because that supplies a standard.

Version C. "The State Government may make rules, and such rules may amend or repeal any provision of this Act." A Henry VIII clause of the widest kind. Bad, as abdication: the delegate is empowered to alter the very instrument that confines it.

Version D. "The State Government may extend to this State, with such modifications as it thinks fit, any law relating to distribution in force in any other State, and may repeal any corresponding law in force here." This is the Part C States provision in a State dress, and the second half falls within what the Delhi Laws Act reference held ultra vires.

Distinctions worth having straight

The distinction is treated more fully in [Forms and Types of Delegated Legislation]. It matters here because a statute attacked for excessive delegation is often defended on the ground that it is conditional legislation only.

What it does NOT mean

It does not mean India follows the American non-delegation doctrine. It does not. Delegation is permitted; only the essential function is withheld.

It does not mean a wide power is automatically bad. Wide powers are constantly upheld where the Act supplies a policy. The width of the power is evidence, not the test.

It does not mean the guidance must be in the same section. It may be found in the preamble, the title or the scheme of the Act as a whole.

It does not mean the rule is valid because the Act is. A valid parent Act can be exceeded by an invalid rule, which is a different question.

Quick revision

1. The problem: delegatus non potest delegare, separation of powers, and the democratic objection.
2. In re The Delhi Laws Act, 1912, AIR 1951 SC 332: a Presidential reference under Article 143(1) on three extension provisions.
3. Held: the Delhi Laws Act 1912 section 7 and the Ajmer-Merwara Act 1947 section 2 were wholly valid; the part of the Part C States (Laws) Act 1950 section 2 permitting repeal or amendment of an existing law was ultra vires.
4. Kania CJ's test: the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct; detail may be left to a subordinate agency; abdication may be partial.
5. Indian legislatures have plenary power under Articles 245 and 246, so the strict agency maxim does not apply.
6. Policy may be found in the preamble, the long title, the scheme of the Act, or the enabling section.
7. Five grounds of invalidity: delegation of the essential function; abdication; violation of a fundamental right under Article 13(3)(a); want of legislative competence; and the rule exceeding the power, which attacks the rule and not the Act.

Test yourself

1. Is delegated legislation constitutionally valid in India? Discuss with reference to the leading case. Yes, within limits. The objections are that a delegate cannot delegate, that legislative power is vested in the legislature, and that unelected officials should not make law. The Supreme Court answered them in In re The Delhi Laws Act, 1912, AIR 1951 SC 332, a reference under Article 143(1) on three provisions permitting the executive to extend laws in force elsewhere, with modifications, to Delhi, Ajmer-Merwara and the Part C States. The Court upheld the first two provisions wholly, and struck down the part of the third which allowed an extended enactment to repeal or amend a law already applicable. Kania CJ held that the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct, and that those essentials belong to the legislature; detail may be left to a subordinate agency, but the legislature may not abdicate, and abdication may be partial. Indian legislatures have plenary power under Articles 245 and 246, so the maxim delegatus non potest delegare does not apply to them in its strict form.

2. What is the essential legislative function? It is the determination of the legislative policy and its formulation as a rule of conduct. It is what marks a legislature out as a legislature, and it cannot be delegated. Everything that remains, the working out of detail and the machinery for carrying the enactment into operation, may be left to a subordinate agency, and delegation of that kind does not offend the Constitution because it does not hand over the power to determine policy.

3. Where may a court look for the policy of an Act? In the preamble, in the long title, in the scheme of the Act read as a whole including its definitions and substantive provisions, in the enabling section itself and any conditions attached to the power, and, for understanding the mischief though not for construing the words, in the Statement of Objects and Reasons. An Act is therefore not invalid merely because the rule making section is brief.

4. On what grounds may delegated legislation be held unconstitutional? Where the parent Act delegates the essential legislative function; where the parent Act amounts to abdication by the legislature, including an unlimited power to repeal or amend existing laws; where the parent Act or the rule violates a fundamental right, a rule being "law" within Article 13(3)(a); and where the parent Act is beyond the legislative competence of the legislature under the Seventh Schedule. A rule may also be bad for exceeding the power conferred, but that is an attack on the rule rather than on the Act.

5. Distinguish delegated legislation from conditional legislation. In delegated legislation the legislature makes the law but leaves the detail to be supplied by the delegate, who exercises a power legislative in character. In conditional legislation the legislature makes the law completely and leaves to the delegate only the decision whether, when or where it shall be brought into operation, which is an executive act of finding a fact. The distinction matters because the question of excessive delegation cannot arise in conditional legislation, since no legislative power has been delegated at all.