Excessive Delegation after the Delhi Laws Act

In one line

The doctrine that a legislature must keep the policy is real, but it has been applied so indulgently that a delegation almost never fails.

In the wording a student can write in an exam: excessive delegation is the vice of a statutory provision which confers legislative power without laying down any policy, standard or guideline for its exercise, so that the delegate is left to determine the policy itself; such a provision is void, but Indian courts find the policy in the preamble, the long title and the scheme of the Act, and delegations are very rarely struck down.

The one clear failure

Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554.

Facts. The Drug and Magic Remedies (Objectionable Advertisements) Act 1954 prohibited advertisements of drugs claiming to cure the diseases listed in the Act, and section 3(d) allowed the Central Government to add to the list any other disease or condition specified in rules made under the Act. The Act was challenged as an infringement of freedom of speech and as an excessive delegation.

Held. The prohibition on advertisements of the kind the Act aimed at was upheld. But section 3(d), in so far as it allowed the Government to add any other disease or condition to the schedule, was struck down as an excessive delegation: the Act laid down no policy or standard by which the executive was to decide what other diseases should be brought within the prohibition, so the essential legislative function of determining what conduct was to be forbidden had been handed over.

Why it matters here. It is the standard example of a delegation that actually failed, and it is short enough to state accurately.

The indulgent line

Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660.

Facts. Section 8(2)(b) of the Central Sales Tax Act 1956 fixed the tax on certain inter-State sales at ten per cent or at the rate applicable to the sale inside the appropriate State, whichever was higher. It was argued that by adopting the local rate instead of fixing one, Parliament had laid down no policy and had abdicated its legislative function.

Held. The provision was upheld. There is a clear legislative policy in section 8(2)(b): the rate of central sales tax shall in no event be less than the local rate for the same goods, though it may exceed it. Adopting an external standard fixed by another legislature is not an abdication, and the test of excessive delegation is whether the legislature has laid down the policy and left only its execution to the delegate.

Why it matters here. It shows how little in the way of a policy the Court will require, and it is the necessary counterweight to Hamdard Dawakhana.