Critical Thinking

TERM 0f legislature which can be delegated t0

                               TERM – PAPER

           

PERMISSIBLE
AND IMPERMISSIBLE LIMITS 0F

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                   DELEGATED  LEGISLATI0N.

   

        (Administrative law and regulat0ry mechanism)

                            (Paper n0. YLM -117)

 

Submitted t0:                                            Submitted by:

Dr. Anu                                                               
     Puru Chandvanshi

                                                                                       LL.M.
3 year (1sem.)

                                                                                 
R0ll n0. 50825

 

INTR0DUCTI0N

When
the functi0n 0f legislati0n is entrusted t0 0rgans 0ther than the legislature
itself, the legislati0n made by such 0rgans is called delegated legislati0n. 0r
we can als0 say that when the legislature delegates its p0wer t0 the administrative
and the administrative b0dy makes any law related t0 the p0wers delegated t0 it
then the law made in such case is said t0 be delegated legislati0n. There is a
limit t0 the p0wer 0f delegati0n which is a kind 0f restricti0n 0ver the p0wers
t0 delegate. Based 0n this, the delegated p0wers can be said t0 have f0ll0wing
limits 0n it:

1)
Permissible limits

2)
Impermissible limits.

There
is a d0ctrine which deals with the limits 0f delegated legislati0n and is kn0wn
as ‘The D0ctrine 0f Permissible Limits’. This d0ctrine deals with the p0wer 0f
legislature which can be delegated t0 the administrative auth0rities as well as
the p0wers which can’t be delegated.

 

D0CTRINE
0F EXCESSIVE DELEGATI0N

The legislature can delegate
its legislative p0wers subject t0 its laying d0wn the p0licy. the legislature
must declare the p0licy 0f the law , lay d0wn legal principles and pr0vide
standards f0r the guidance 0f the delegate t0 pr0mulgate delegated legislati0n,
0therwise the law will be bad 0n acc0unt 0f “excessive delegati0n”.

S0,
this d0ctrine means that the legislature can’t delegate unrestrained
uncanalised and unqualified legislative p0wers 0n an administrative b0dy.
Delegati0n is valid 0nly if it is c0nfined t0 legislative p0licy and
guidelines.

In
Sitaram Vishabhar Dayal1, c0urt held that whether the
p0wer delegated by legislature t0 the executive has exceeded the permissible
limits in a given case depends up0n the facts and circumstances. The questi0n d0esn’t
admit 0f any general rule.

P0WER
T0 EXEMPT

The legislature can exempt any pers0n, instituti0n
0r c0mm0dity fr0m its purview. The reas0n t0 have an exempti0n clause is t0:

·     
Reduce w0rk 0f legislature.

·     
T0 rem0ve the hardship t0 the
pers0ns this may materially affect the p0licy 0f the act.

            A
typical pr0visi0n runs as f0ll0ws:

“N0twithstanding anything c0ntained in this
Act, the G0vernment may, subject t0 such c0nditi0ns as they deem fit, by n0tificati0n,
exempt any land 0r building 0r class 0f land 0r buildings fr0m all 0r any 0f
the pr0visi0ns 0f this Act 0r rules 0f regulati0ns made there under.”

Secti0n 113 0f the Tamil Nadu T0wn and C0untry
Planning Act, 1971

Such a pr0visi0n may be held t0 be invalid if
the Act c0ntains n0 p0licy, guidelines 0r principles f0r the guidance 0f the g0vernment’s
discreti0n t0 exempt under this clause.

Ø  In
Parasuraman2,
the exempti0n clause was characterized as “uncanalised, unlimited and
arbitrary” as the Act did n0t lay d0wn any principle 0r p0licy f0r the
guidance 0f the g0vernment’s discreti0n t0 exempt.

Ø   In Jalan Trading C0. v. Mill Mazd00r Uni0n3, the Supreme C0urt upheld s.
36 0f the Payment 0f B0nus Act, 1965 auth0rizing the G0vernment t0 exempt any
establishment fr0m the 0perati0n 0f the Act having regard t0 the financial p0siti0n
and 0ther relevant circumstances, as Parliament had given adequate guidance and
laid d0wn the principles in the light 0f which the p0wer 0f exempti0n is t0 be
exercised.

       P0WER
T0 M0DIFY

S0metimes, a statute c0nfers 0n
the executive the p0wer t0 m0dify 0r amend the parent statute. This p0wer makes
the executive supreme even 0ver the Legislature, but the c0nferment 0f this p0wer
pr0vides flexibility in the changing circumstances. F0r example,

·     
When s0me c0mplicated scheme is
intr0duced, s0 t0 meet any unf0reseen difficulty.

·     
T0 prevent the delay in the
making 0f necessary changes in the statue by the legislature.

 

 In Baburam Jagdish Kumar & C0.4 it was held that p0wer by the
legislature t0 a l0cal auth0rity 0r t0 executive G0vernment t0 vary 0r m0dify
an existing law w0uld n0t be unc0nstituti0nal s0 l0ng as such delegati0n d0es n0t
inv0lve abdicati0n 0f essential legislative p0wer by the legislature i.e.
necessary guidelines are pr0vided.

In Rajnarain v. Chairman, Patna Administrati0n C0mmittee5, the relevant statut0ry pr0visi0n
pr0vided that the State G0vernment c0uld extend t0 a particular area any secti0n
0f the statute (The Bihar and 0rissa Municipal Act, 1922) subject t0 “such
restricti0ns and m0dificati0ns as the G0vernment may think fit”. The
Supreme C0urt upheld the delegati0n 0f p0wer but subject t0 what it had said in
the Delhi case that the G0vernment c0uld n0t make a change in the essential p0licy
0f the Act. The C0urt held that “when a secti0n 0f an Act is selected f0r
applicati0n, whether it is m0dified 0r n0t, it must be d0ne s0 as n0t t0 affect
any change 0f p0licy, 0r any essential change in the Act regarded a wh0le.”

In Lachmi Narain6, the G0vernment was given p0wer
t0 m0dify the schedule by giving a three m0nths n0tice. In additi0n, the G0vernment
was als0 given p0wer t0 make such m0dificati0ns as it “thinks fit”.
The G0vernment s0ught t0 amend the Act by dr0pping the requirement 0f giving
three m0nths n0tice f0r amending the schedule. The Supreme C0urt declared this
m0dificati0n as ultra-vires 0n the gr0und that it changed the “essential
feature” and “legislative p0licy” inherent in the Act. The C0urt
ruled that the requirement 0f three m0nths n0tice t0 amend the schedule was a
mandat0ry requirement, a matter 0f p0licy, because adequate n0tice t0 th0se
affected was necessary s0 that they c0uld make due representati0ns against the
pr0p0sed change.7

Hence,
it can be said that a delegati0n will be ultra vires if it c0ntravenes the p0licy
as p0licy can’t be changed by the delegate even during m0dificati0n 0f statute.

 

  

 

 Rem0val 0f Difficulties

            Statutes
usually c0ntain a rem0val 0f difficulty clause, nick-named in Britain as the
Henry VIII clause because “that king is regarded p0pularly as the impers0nati0n
0f executive aut0cracy”.

            The
pr0visi0n is used usually when the Legislature passes a statute implementing a
new s0ci0-ec0n0mic scheme. N0t being sure 0f what difficulties may cr0p up in
the future implementati0n 0f the pr0visi0ns 0f the law, the Legislature intr0duces
therein a “rem0val 0f difficulty” clause envisaging that G0vernment
may make pr0visi0ns t0 rem0ve any difficulty that may arise in putting the law
int0 0perati0n.

There are tw0 types 0f “rem0val 0f
difficulty” clauses:

(a)        A narr0w p0wer under which “p0wer t0
rem0ve difficulties” has t0 be exercised c0nsistent with the pr0visi0ns 0f
the parent Act. In such a case, the G0vernment cann0t m0dify any pr0visi0n 0f
the statute itself.

Here, the resultant 0rder made by the Executive
t0 rem0ve the difficulty sh0uld n0t change the basic p0licy 0f the parent Act.
The rem0val 0f difficulty 0rder cann0t change any pr0visi0n 0f the parent Act;
the 0rder is t0 give effect t0 the Act.

(b)       The 0ther, a br0ader versi0n, may auth0rize
m0dificati0n 0f the parent Act, 0r any 0ther Act, in the name 0f rem0val 0f
difficulties. Usually, such a p0wer is limited in p0int 0f time, say tw0 0r
three years. In principle, such a p0wer is 0bjecti0nable as it vests a vast
arsenal 0f p0wer in the Executive.

             Requirements
f0r applicati0n 0f Henry VIII clause:
three requirements must be fulfilled f0r a rem0val 0f difficulty 0rder t0 be
made by the Executive, viz.:

(1)          
that a difficulty has arisen in
giving effect t0 the pr0visi0ns 0f the scheme:

(2)          
that the 0rder t0 be made is
such as appears t0 the G0vernment t0 be necessary 0r expedient f0r the purp0se 0f
rem0ving the difficulty; and

(3)          
That the 0rder is n0t inc0nsistent
with any pr0visi0n 0f the scheme.

 

Imp0rtant
p0ints related t0 Henry VIII clause:

·     
Here the m0dificati0n 0f the
parent Act is n0t permitted and the rem0val 0f difficulty 0rder is n0t final
and its validity can be tested in a c0urt 0f law.

·     
If there is n0 difficulty, the
p0wer t0 rem0ve the difficulty cann0t be exercised. The c0urt can theref0re g0
int0 the questi0n whether any difficulty has in fact arises.

·     
 The essential pr0visi0ns 0f the Act cann0t be
amended; 0nly min0r changes can be made in the parent Act.

·     
In Jalan trading c0mpany v. Mill
Majd00r uni0n8,
Supreme C0urt was called up0n t0 decide the legality 0f secti0n 37 0f payment 0f
b0nus act, 1965. The c0urt in this case by maj0rity 0f 3:2 held that sec 37 0f
the said act is ultra vires 0n the gr0und 0f excessive delegati0n. The c0urt
went 0n further and said that central g0vernment delegated such p0wers t0 the
executive which was n0t permissible.

·     
Later in Gamm0n India ltd v.
uni0n 0f India9,
the min0rity view 0f Jalan trading case was ad0pted by the c0urt which says
that functi0ns exercised by the central g0vt. were n0t legislative functi0ns, s0
their delegati0n was permissible.

·     
After that in Patna University
v. Amita Tiwari10,
the c0urt held that “rem0val 0f difficulty” clause had 0nly limited applicati0n
and cann0t be applied in every situati0n having s0me difficulty.

FUNCTI0NS
WHICH CAN N0T BE DELEGATED (IMPERMISSIBLE DELEGATI0N)

The
f0ll0wing functi0ns can’t be delegated by the legislature t0 the executive:

·     
Essential
legislative functi0ns

There is n0 bar in the c0nstituti0n 0f India
against the delegati0n 0f legislative p0wer t0 the executive, but the essential
legislative FUNCTI0NS can’t be delegated t0 the executive at all.

Thus laying d0wn a legislative p0licy is the
functi0n 0f legislature 0nly and by entrusting this p0wer t0 0ther b0dy, the
legislature can’t escape fr0m its duty and create a parallel legislature.

 

 

·     
Repeal
0f law

P0wer t0 repeal a law is an essential
legislative functi0n. S0, if legislature delegates this p0wer t0 executive, it
will be excessive delegati0n and will bec0me ultra vires.

 

·     
M0dificati0n

M0difying the act in relati0n t0 its imp0rtant
aspects is essential legislative functi0n. S0, delegati0n 0f such p0wer t0 m0dify
the act with0ut any limitati0n is n0t permissible.

 

·     
Exempti0n

With0ut laying d0wn n0rms and p0licy f0r
guidance delegati0n 0f p0wer 0f exempti0n t0 executive is n0t impermissible.

 

·     
rem0val
0f difficulty

Under the guise 0f rem0ving difficulty,
legislature cann0t enact a Henry VIII clause and delegate a functi0n 0r p0wer
which is essential in nature 0r which cann0t be delegated n0rmally.

 

·     
Retr0spective
0perati0n

The p0wer 0f law making in India vests in the
legislature. Parliament can pass a law retr0spectively 0r pr0spectively subject
t0 the pr0visi0ns 0f the c0nstituti0n. But this principle cann0t be applied in
the case 0f delegated legislati0n. Giving an act a retr0spective 0perati0n is
an essential legislative functi0n which cann0t be delegated by the legislature
t0 the executive.

 

SAFEGUARDS
REGARDING DELEGATI0N 0F P0WERS T0 THE EXECUTIVE:

 

·     
Legislature sh0uld lay d0wn
guidelines f0r delegati0n 0r exercising the p0wer 0f delegati0n.

·     
T0 make delegate t0 act within
the framew0rk 0f the statute, legislature has t0 set a criteria 0r standard
regarding delegati0n 0f p0wers.

·     
Delegati0n sh0uld be reas0nable.

·     
Delegati0n sh0uld be limited n0t
unlimited.

·     
Delegate sh0uld n0t m0dify the
basic legislati0n.

·     
Delegati0n 0f p0wers sh0uldn’t
be uncanalised and unc0ntr0llable.

·     
Legislature must set the limits
0f the p0wer delegated by declaring the p0licy 0f the law.

·     
Essential functi0ns cann0t be
delegated.

 

 

 

C0NCLUSI0N:

Delegati0n
0f p0wers is helpful but excessive delegati0n is harmful. Delegati0n have vari0us
advantages like reducti0n 0f w0rk l0ad 0f the legislature etc. but what has t0
be d0ne by the legislature has t0 be d0ne by itself 0nly. That is why there is
a well defined arena 0f the delegated legislature bey0nd which there willn’t be
all0wed any delegati0n 0f p0wers and that is kn0wn as impermissible limits 0f
delegated legislati0n. Delegati0n 0f p0wers helps in divisi0n 0f excessive w0rk
l0ad t00 but safeguards and pr0per c0ntr0l mechanisms sh0uld be present and
implemented t0 have a pr0per canalized and c0ntr0lled delegati0n 0f p0wers.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                        

 

 

                                                     
     BIBLI0GRAPHY

B00KS:

1)    C.K.Takwani,
Lectures 0n Administrative Law, 4th editi0n, 2008.

2)    M.P.
Jain and S.N. Jain, Principles 0f Administrative Law, 6th editi0n,2010.

3)    Paras
Diwan, Administrative Law, 3rd editi0n, 2004.

4)    Takwani
and Thakkar , Lectures 0n Administrative Law.

 

1  Sitaram Vishambhar Dayal v.
State 0f U.P. AIR 1972 SC 1168,para7, p. 1170 L1972)2
SCR 141.

2 A.N. Parsuraman v. State 0f Tamil Nadu, AIR 1990 SC 40.

 

3 AIR 1967 SC 691.

4 . Baburam Jagdish Kumar & c0. v. State 0f Punjab, (1979) 3 SCC
616 ; AIR 1979 SC 1475, PARA 30, P. 1484

5 AIR 1954 SC 569, para32, 37 and 39.

6 AIR 1976 SC 714: (1976) 2 SCC 953 ; XII ASIL 475 (1976).

7  See ‘principles 0f
administrative law’ by Jain and Jain. Page n0. 70.

8 . AIR 1967 SC 691 : (1967) 1 SCR 15

9 (1974) 1 SCC 598: AIR 1974 SC 960.

10 (1977) 7 SCC 198: AIR 1997 SC 3456.

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