The Essential Legislative Function

On what abdication means, and this is the proposition most often misstated. Abdication by a legislative body need not necessarily amount to complete effacement. There is an abdication when in respect of a subject in the Legislative List that body says in effect that it will not legislate but would leave it to another to legislate on it.

And on partial abdication. An abdication may be partial: if full powers to do everything the legislature can do are conferred on a subordinate authority, then even though the legislature retains the power to control the subordinate by recalling the power or repealing its Acts, there is an abdication or effacement.

Fazl Ali J's formulation, which is the most usable. The legislature must formally discharge its primary legislative function itself and not through others; within its sphere it is free to legislate as it thinks best and may utilise any outside agency to any extent it finds necessary for what it cannot do or finds inconvenient to do itself; but it cannot abdicate its legislative functions, and while entrusting power to an outside agency it must see that such agency acts as a subordinate authority and does not become a parallel legislature.

And his observation on the checks, which an evaluative answer should use. The courts of India are not committed to the doctrine of separation of powers as it has been interpreted in America, so there are only two main checks in this country on the power of the legislature to delegate: its good sense, and the principle that it should not cross the line beyond which delegation amounts to abdication and self-effacement.

Conditional legislation and delegated legislation

The distinction is examined in Hamdard Dawakhana, and students confuse the two constantly.

In conditional legislation the delegate's power is that of determining when a legislatively declared rule of conduct shall become effective. The legislature has made the law; the delegate decides the time, the manner, or the area of its operation.

In delegated legislation the delegate is given rule-making power: the legislature having laid down the broad principles of its policy leaves the details to be supplied by the administrative authority, and the delegate completes the legislation by supplying details within the limits prescribed by the statute.

Why the distinction matters. Conditional legislation raises no question of excessive delegation, because nothing legislative has been handed over; only a trigger has. Chapter 810 read section 5 of the Delhi Special Police Establishment Act, under which the Central Government extends the Establishment's powers to an area: that is conditional legislation, and the offences it may investigate remain fixed by the notification under section 3.

Hamdard Dawakhana: the doctrine applied

Facts. Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, decided on 18 December 1959. The Drug and Magic Remedies (Objectionable Advertisements) Act 1954 prohibited advertisements of remedies for the diseases and conditions specified in section 3, clause (d) of which extended to "any other disease or condition which may be specified in the rules made under this Act".

Held on the character of the power. When the rule-making authority specifies conditions and diseases in the Schedule it exercises the same delegated authority as when it makes other rules, so it is delegated legislation and not conditional legislation.

Held on its validity, and this is the passage to quote. The question was whether the administrative authority had been supplied with proper guidance. "In our view the words impugned are vague. Parliament has established no criteria, no standards and has not prescribed any principle on which a particular disease or condition is to be specified in the Schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in section 3(d) must therefore be held to be going beyond permissible boundaries of valid delegation." As a consequence the Schedule in the rules was struck down, without affecting the conditions and diseases properly falling within the other clauses of section 3.

Note exactly what failed. Not the Act, and not the power to make rules. A single clause which handed over the choice of what the Act should apply to, with no criteria, no standards and no principle. That is the essential legislative function, and it had not been retained.

How to apply the doctrine

Ask three questions in order.

One: is this delegated legislation at all, or conditional legislation? If the legislature has made the rule and left only the time, manner or area of its operation, the doctrine does not arise.

Two: has the legislature declared the policy? Look for the object in the preamble and the operative sections. If the Act says what it is trying to achieve, there is a policy.

Three: has it laid down a standard, that is criteria, principles or guidance by which the delegate is to act? This is where Acts fail. A power to specify "any other disease" with no criteria, no standards and no principle fails; a power to prescribe standards of quality for the purpose of ensuring the safety of food does not, because the object supplies the standard.

And note the practical consequence for the rest of this label. The doctrine polices the parent Act, not the rule. A rule that goes beyond the Act is ultra vires, which is a different objection; a rule made under a section that gave no guidance fails because the section was bad. Chapter 1050's committee applies both tests; a student should keep them apart.

A worked example

An Act to regulate private schools empowers the Government to make rules "prescribing such matters as may be necessary", and a rule made under it fixes the fees a school may charge.

Is it conditional legislation? No. The legislature has not made a rule and left its commencement to the delegate; the delegate is making the rule.

Has the legislature declared a policy? If the Act's object is the regulation of private schools in the interest of students, there is a policy.

Has it laid down a standard? A power to prescribe "such matters as may be necessary" supplies no criteria, no standards and no principle for fixing a fee. On Hamdard Dawakhana the delegation goes beyond permissible boundaries, and the rule falls with the clause.

Change the Act. It empowers rules "prescribing the maximum fee, having regard to the cost of providing the education, the facilities offered and the need to prevent profiteering". Now there is a standard, and the delegation is of the ancillary detail which the legislature considers necessary to exercise its power effectively and completely.

Change it again. The Act itself fixes the fee and empowers the Government to bring the Act into force in such districts as it may notify. That is conditional legislation: the rule of conduct is the legislature's, and the delegate decides only the area.

And a rule made under the second Act fixes a fee for a purpose the Act does not mention. That is not excessive delegation but ultra vires, and chapter 1050 shows the committee and a court applying the same ground.

What beginners get wrong

That any delegation of law-making is unconstitutional. Only of the essential legislative function, which is declaring the policy and laying down the standard.

That abdication means the legislature has abolished itself. It need not amount to complete effacement; there is abdication where the legislature says in effect that it will not legislate but will leave it to another to legislate.

That retaining a power of repeal saves the delegation. It does not: even where the legislature retains the power to recall or to repeal, conferring full powers to do everything it can do is abdication or effacement.

That conditional legislation is a kind of delegated legislation. In conditional legislation the delegate determines when a legislatively declared rule shall become effective; nothing legislative is handed over.

That Hamdard Dawakhana struck down the Act. It struck down the Schedule in the rules, the vice being in section 3(d), and the other clauses of section 3 were unaffected.

Quick revision

In re The Delhi Laws Act 1912, AIR 1951 SC 332, advisory opinion of 23 May 1951, seven judges, separate opinions.

The definition: the legislature must retain in its own hands the essential legislative functions, which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law; what may be delegated is the ancillary detail, its legitimacy depending entirely upon its being used as an ancillary measure which the legislature considers necessary to exercise its powers effectively and completely.

The source of the limit: unless the power to delegate is expressly given by the constitution, a legislature cannot delegate its essential legislative functions, and the Indian Constitution gives none.

Abdication: need not amount to complete effacement; it exists where the legislature says in effect that it will not legislate but will leave it to another; and conferring full powers is abdication even though the power to recall or repeal is retained.

Fazl Ali J: the delegate must act as a subordinate authority and not become a parallel legislature; and there are only two main checks, the legislature's good sense and the line beyond which delegation is abdication and self-effacement.

Conditional legislation: the delegate determines when a legislatively declared rule of conduct shall become effective, or its manner or area. No question of excessive delegation arises.

Hamdard Dawakhana, AIR 1960 SC 554, 18 December 1959: specifying diseases in the Schedule is delegated legislation; "Parliament has established no criteria, no standards and has not prescribed any principle", so s.3(d) goes beyond permissible boundaries of valid delegation and the Schedule in the rules is struck down.

Test yourself

1. What is the essential legislative function, and may it be delegated? It consists in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law. It may not be delegated. The advisory opinion in In re The Delhi Laws Act held that the view that a legislature has a general power to delegate unless expressly prohibited is supported neither by authority nor by principle, that the correct view is that unless the power to delegate is expressly given by the constitution a legislature cannot delegate its essential legislative functions, and that since the Indian Constitution gives no such power the Indian legislature has none. What may be delegated is the ancillary detail, and the legitimacy of a delegation depends entirely on its being used as an ancillary measure which the legislature considers necessary in order to exercise its legislative powers effectively and completely.

2. What amounts to abdication? Not necessarily the complete effacement of the legislature. There is an abdication where, in respect of a subject in a Legislative List, the body in effect says that it will not legislate but will leave it to another to legislate on that subject. Abdication may also be partial: where full powers to do everything the legislature itself could do are conferred on a subordinate authority, there is an abdication or effacement even though the legislature retains the power to control the subordinate by recalling the power or repealing what it has made. Fazl Ali J put the test in the form that a legislature entrusting power to an outside agency must see that the agency acts as a subordinate authority and does not become a parallel legislature.

3. Distinguish conditional legislation from delegated legislation. In conditional legislation the delegate's power is that of determining when a legislatively declared rule of conduct shall become effective, and it extends to the time and manner of carrying the legislation into effect and to the determination of the area to which it is to extend. In delegated legislation the legislature, having laid down the broad principles of its policy, leaves the details to be supplied by the administrative authority, and the delegate completes the legislation by supplying those details within the limits the statute prescribes. The distinction matters because conditional legislation raises no question of excessive delegation, nothing legislative having been transferred; only a trigger has. Section 5 of the Delhi Special Police Establishment Act 1946, under which the Central Government extends the Establishment's powers and jurisdiction to an area, is an instance of conditional legislation.

4. What was decided in Hamdard Dawakhana? The Drug and Magic Remedies (Objectionable Advertisements) Act 1954 prohibited advertisements relating to the diseases and conditions specified in section 3, clause (d) of which extended to any other disease or condition specified in the rules. The Court held that when the rule-making authority specified conditions and diseases in the Schedule it was exercising delegated legislative power and not conditional legislation; and that the power was invalid, because the words impugned were vague, Parliament having established no criteria, no standards and no principle upon which a particular disease or condition was to be specified, and not having stated what facts or circumstances were to be taken into consideration. The power in section 3(d) therefore went beyond the permissible boundaries of valid delegation, and the Schedule in the rules was struck down, the conditions and diseases falling within the other clauses of section 3 being unaffected. What failed was neither the Act nor the rule-making power generally, but a single clause which handed over the choice of what the Act should apply to without any guidance at all.