Doctrine Of Permissible Limits Under Delegated Legislation
. Apart from the pure administrative function executive also performs legislative and the judicial function also. In England theoretically it is only parliament, which can make laws. Even in the United States of America where the doctrine of the delegated legislation has not been accepted in principal, in practice the legislature has entrusted legislative powers to the executive. Administrative legislation met with a rapid growth after World War II and in India during 1973 to 1977. There are some limitations on the legislation in relation to delegation of its powers to administrative authorities. Doctrine of permissible limits talks about those limitations of a legislation to which the power can be delegated. This doctrine put a limitation on the legislature so that legislature could not delegate it's all power to the administrative authorities.
Meaning : Legislation by the executive branch or a statutory authority or local or other body under the authority of the competent legislature is called Delegated legislation . It permits the bodies beneath parliament to pass their own legislation .It is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation.
The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created. Importance : There are several reasons why delegated legislation is important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming.
Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation. Secondly, delegated legislation allows law to be made by those who have the relevant expert knowledge. By way of illustration, a local authority can make law in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. A particular Local Authority can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament.
Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is therefore able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament. Delegation of Powers under the Indian Constitution : The Legislature is quite competent to delegate to other authorities. To frame the rules to carry out the law made by it. In D. S. Gerewal v. The State of Punjab , K.N. Wanchoo, the then justice of the Hon'ble Supreme Court dealt in detail the powers of delegated legislation under the Article 312 of Indian Constitution. He observed: "There is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature.
The words "Parliament may by law provide" in Article 312 should not be read to mean that there is no scope for delegation in law made under Article 312…." In the England, the parliament being supreme can delegated any amount of powers because there is no restriction. On the other hand in America, like India, the Congress does not possess uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Rayans, the supreme court of the United States had held that the Congress can delegate legislative powers to the Executive subject to the condition that it lays down the policies and establishes standards while leaving to the administrative authorities the making of subordinate rules within the prescribed limits. Criticisms : Delegated legislation is not without its criticisms. The main defects of delegated legislation are as follows:-
• It has been suggested that by having delegated legislation to make and amend laws.
• It lacks democracy as too much delegated legislation is made by unelected people.
• Delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over delegated legislation and this can lead to inconsistencies in laws. Delegated legislation therefore has the potential to be used in ways which Parliament had not anticipated when it conferred the power through the Act of Parliament.
• Delegated legislation is the lack of publicity surrounding it. When law is made by statutory instrument the public are not normally notified of it whereas with Acts of Parliament, on the other hand, they are widely publicized.
One reason for the lack of publicity surrounding delegated legislation is because of the volume of delegated legislation made and this result in the public not being informed of the changes to law. There has also been concern expressed that too much law is made through delegated legislation.
Delegation of powers:-
Meaning : Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, i.e., powers given by the legislature to administration to enact laws to perform administration functions.
The law legislate by the administration with the powers given by the legislature is called delegated legislation. Or we can say that when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature is called subordinate legislation or delegated legislation. Delegated legislation, also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created. Doctrinal of permissible limits Doctrine of permissible limit basically talks about the powers of a legislature which can be delegated to the Administrative authorities a legislation cannot delegate all its powers. The legislature has some limited powers which can be delegated.
Those powers are as follows:
Powers which can be delegated: Commencement : Several statues contain an 'appointed day' clause, which empowers the government to appoint a day for the act to come into force. In such cases, the operation of the act depends on the decision of the government e.g. section 3 of the Bombay Rents, hotel and Lodging house rates control act, 1947 provides that the act shall come into operation on such date as the state Government may by notification in the official gazette appoint in this behalf. Here the act comes into force when the notification is published in the official gazette. Such a provision is valid for, as Sir Cecil Carr remarks, "the legislature provides the gun and prescribes the target, but leaves to the executive the take of pressing the trigger".
If the legislative policy is formulated by the legislature, the function of supplying details may be delegated to the executive for giving effect to the policy. What is delegated here is an ancillary function in aid of the exercise of the legislative function e.g. section 3 of All India Service Act, 1951 authorizes the central government to make rules to regulate conditions of service n All India Services. Inclusion : Sometimes, the legislature passes an act and makes it applicable, in the first instance, to some areas and classes of persons, but empowers the government to extend the provisions thereof to different territories, persons or commodities, etc, e.g., the transfer of property act, 1882 was made applicable to the whole of India except certain areas, but the government was authorized to apply the provisions of the act to those areas also. In the same manner, the Dourine Act, 1910 was made applicable to horses in the first instance but by section 2(2), the government was authorized to extend the provision of the act to asses as well. By section 146 of the Indian Railways act, 1980, the government was authorized to apply the provision to tramways. Exclusion : There are some statutes which empower the government to exempt from their operation certain persons, terrorist, commodities, etc. section 30 of the payment of Bonus Act, 1965 empowers the government to exempt any establishment or a class of establishment from the operation of the act. Suspension : Some statutes authorize the government to suspend or relax the provisions contained therein, e.g. under section 48 (1) of the Tea Act, 1953, the central government is empowered under certain circumstances to suspend the operation of all or any of the provision of the said act. Application of existing laws : Some statutes confer the power on the executive to adopt and apply statutes existing in other states without modifications (with incidental changes) to a new area. There is no unconditional delegation in such cases, as the; legislative policy s laid down in the statute by the competent legislature.
Sometimes, provisions are made in the statute authorizing the executive to modify the existing statute before application. This is really a drastic power as it amounts to an amendment of the act, which is a legislative act, but sometimes, this flexibility is necessary to deal with the local conditions. Thus, under the power conferred by the delhi laws act, 1912, the central government extended the application of the Bombay agricultural debtors relief act.1947 to Delhi. The Bombay Act was limited in application to the agriculturists whose annual income was less than Rs. 500 but that limitation was removed by the government.
In some cases the legislature delegates to the executive the power to take punitive action e.g., under section 37 of the electricity act,1910, the electricity board is empowered to prescribe punishment for breach of the provision of the act subject to the maximum punishment laid down in the act. By section 59(7) of the Damodar Valley Act, 1948, the power to prescribe punishment is delegated to a statutory authority without any maximum limit fixed by the parent act.
According to the Indian Law Institute, this practice is not objectionable, provided two safeguards are adopted:
1) The legislation must determine the maximum punishment which the rule making authority may prescribe for breach of regulations; and
2) If such power is delegated to any authority other than the state or central government, the exercise of the power must be subject to the previous sanction or subsequent approval of the state or central government. Framing of rules : A delegation of power to frame rules, bye laws, regulations, etc. is not unconstitutional, provided that the rules, bye laws and regulations are required to be laid before the legislature before they come into force and provide further that the legislature has power to amend, modify or repeal them. Removal of difficulties (Henery VIII clause) : Power is sometime conferred on the government to modify the provisions of the existing statutes for the purpose of removing difficulties. When the legislature passes an act, it cannot foresee all he difficulties which may arise in implementing it.
The executive is, therefore, empowered to make necessary changes to remove such difficulties. Such provision is also necessary when the legislature extends a law to a new area or to an area where the socio- economic condition are different. Generally, two types of "removal of difficulties" clauses are found in statutes. A narrow one, which empowers the executive to exercise the power of removal of difficulties consistent with the provisions of the parent act; e.g. section 128 of the States Reorganization Act, 1956 reads as under: "If any difficulty arises in giving effect to the provisions of this act, the president may by order do anything not inconsistent with such provision which appears to him to be necessary or expedient for the purpose of removing the difficulty". Such a provision is not objectionable. According to the committee on Ministers Power, the sole purpose of Parliament in enacting such a provision is 'to enable minor adjustments of its own handiworks to be made for the purpose of fitting its principle into the fabric of existing legislation, general or local'. Sir Cecil Carr rightly says, "the device is partly a draftsman's insurance policy in case he has overlooked something, and partly due to the immense body of local acts in England creating special difficulties in particular areas". By exercising this power the government cannot modify the parent act nor can it make any modifications which are not consistent with the parent act. Another type of "a removal of difficulties' clause is very wide and authorizes the executive in the name of removal of difficulties to modify even the parent act or any other act.
The classic illustration of such a provision is found on the constitution itself. Usually, such a provision is for a limited period. This provision has been vehemently criticized by Lord Hewart and other jurists. It is nicknamed as the Henery VIII clause to indicate executive autocracy. Henery VIII was the king of England in the 16th century and during his regime he enforced his will and got his difficulties removed by using instrumentality of a service parliament for the purpose of removing the difficulties that came in his way. According to the committees of minister' powers, the king is regarded popularly as the impersonation of executive autocracy and such a clause 'cannot but be regarded as inconsistent wih the principle of parliamentary government'.
In Jalan Trading company v. Mill Majdur Sabha the supreme court was called upon to decide the legality of such a clause. Section 37 (1) of the payment of Bonus Act 1965 empowered the central government to make such orders, not inconsistent with the purpose of the act, is might be necessary or expedient for the removal of any doubts or difficulties. Section 37 (2) made the order passed by the central government under sub section (1) final. The court by a majority of 3:2 held section 37 ultra vires on the ground of excessive delegation in as much as the government was made the sole judge of whether any difficulty or doubt had arisen, whether it was necessary to remove such doubt or difficulties and whether the order made was consistent with the provisions of the act. Again, the order passed by the central government was 'final'. Thus, in substance, legislative power was delegated to executive authority, which was not permissible.
The minority, however, took a liberal view and held that the functions to be exercised by the central government was not legislative functions at all but were intended to advance the purpose which the legislature had in mind. In the words of Hidautllah, J. (as he then was): "parliament has not attempted to set up legislation. I have stated all that it wished n the subject of bonus in the act. Apprehending, however, that in the application of the new act doubts and difficulty might arrive and not leaving there solutions to the court with the attendant delays and expense, parliament have chosen to give power to the central government to remove doubt and difference by a suitable order." It is submitted that the minority view is correct and after Jalan trading company, the Supreme Court adopted the liberal approach. In Gammon India Ltd. V. union of India a similar provision was held constitutional by the court. Distinguishing Jalan Trading Company, the court observed: "in the present case, neither finality nor alteration is contemplated in any order under section 34 of the act. Section 34 is for giving effect to the provisions of the act. This provision is an application of the internal functioning of the administrative machinery." It, therefore, becomes clear that after Jalan Trading Company, the court changed its view and virtually overruled the majority judgment. In Patna University v. Amita Tiwari, the relevant statute enabled the chancellor to issue the directions to universities "in the administrative and academic interest."
In exercise of that power, the chancellor directed the university to regularize services of an ineligible teacher "on compassionate grounds." When the action was challenged, it was sought to be supported on the basis of "removal difficulties" clause. Holding that the "removal of difficulties" clause had only limited application, the Supreme Court quashed the order. It is submitted that by using a 'removal of difficulties' clause, the government "may slightly tinker with the act to round off angularities and smoothen the joint or remove minor obscurities o make it workable, but it cannot change or disfigure the basic structure of the act. In no case can it under the guise of removing a difficulty, change the scheme and essential provision of the act" the committee on ministers' powers rightly opined that it would be dangerous in practice to permit the executive to change an act of parliament and made the following recommendations: "the use of the so called Henery VIII clause conferring power on a minister to modify the power of on a minister to modify the provision of acts of parliament should be abounded in all but most exceptional cases and should not be permitted by parliament except upon special grounds stated in a ministerial memorandum to the bill. Henery VIII clause should never be used except for the sole purpose of bringing the act into operation but subject to the limitation of one year." Conclusion:- Delegated legislation permits the body beneath parliament to pass their own legislature. Delegated legislation is the legislation made by person or bodies other than parliament. That person or body must be permitted by the parliament by an Act passed by the parliament. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament.
In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created. There are several reasons why delegated legislation is important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Delegated legislation, also referred to as secondary legislation. Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, In order to delegate its powers to any person or body, parliament has its own limitations. Parliament cannot delegate all its powers to any Administrative authority. There are some powers which cannot be delegated. Those powers which can be delegated can come into the preview of the Doctrine of permissible limits.
1. Takwani C.K. Lectures on Administrative Law. (Lucknow: Eastern Book Company) 2007. 2. Joshi K.C. An Introduction to Administrative Law, (Allahabad: Central Law Publication) 2006.
Cases Referred and Citated:-
1. D.S. Gerewal v. state of Punjab, AIR 1960 SC 512.
2. Jalan Trading Company v. Mill Majdur Sabha, AIR 1967 SC691.
3. Gammon India Ltd. V. Union of India, (1974) 1 SCC 598.
4. Patna University v. Amita Tiwari, (1997) 7 SCC 198.
The author can be reached at: BhagwatiDanCharan@legalserviceindia.com