Excessive Delegated Legislation in India

Navigating the Contours of Legislative Power: An Analysis of Excessive Delegated Legislation in India

Introduction

The doctrine of delegated legislation, a cornerstone of modern administrative law, acknowledges the practical necessity for legislative bodies to entrust certain law-making functions to executive or other subordinate authorities. In a complex welfare state like India, the legislature cannot foresee every contingency or delve into the minutiae of every regulatory aspect. However, this delegation is not unbridled. The Indian constitutional framework, while permitting delegation, implicitly and explicitly proscribes its excessive use, ensuring that the legislature does not abdicate its essential functions. This article undertakes a comprehensive analysis of the concept of "excessive delegated legislation" within the constitutional and jurisprudential landscape of India, drawing upon seminal case law and legal principles to delineate its permissible boundaries and the consequences of transgression.

Excessive delegation occurs when the legislature transfers its core law-making authority without providing adequate guidelines, policy frameworks, or retaining sufficient control, thereby risking arbitrary exercise of power by the delegate. The judiciary in India has played a crucial role in scrutinizing such delegations to maintain the delicate balance of powers and uphold constitutionalism. As observed in Ramesh Birch And Others v. Union Of India And Others (Supreme Court Of India, 1989), while delegated legislation is "inevitable and indispensable" due to the complexity of modern governance and the legislature's limitations in expertise and time, "delegation unlimited may invite despotism uninhibited." This article will explore the evolution of this doctrine, the tests applied by courts, and its application in various contexts, particularly in fiscal matters and areas impinging upon fundamental rights.

The Constitutional Moorings and Judicial Evolution

The Constitution of India does not explicitly codify the limits of delegated legislation in a single provision. However, the principles are derived from the scheme of separation of powers, the vesting of legislative power in Parliament and State Legislatures (Articles 245 and 246), and the fundamental rights guaranteed in Part III. The power to legislate inherently includes the power to delegate, but this delegation must be ancillary to the primary legislative function.

The foundational case in this domain is In re The Delhi Laws Act, 1912 (Supreme Court Of India, 1951). While the judges delivered separate opinions, a consensus emerged that the legislature cannot delegate its "essential legislative functions." These functions were broadly identified as the determination of legislative policy and its formulation as a binding rule of conduct. The Court emphasized that delegation is permissible only as an ancillary measure for the effective exercise of legislative power. As summarized in Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner Of Sales Tax And Others (Supreme Court Of India, 1973), "The Legislature must retain in its own hands the essential legislative function... As long as the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere."

This principle was further crystallized in Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna And Another (1954 AIR SC 569, Supreme Court Of India, 1954). The Court held that an executive authority can be authorized to modify existing or future laws, but "not in any essential feature." It clarified that "modification cannot include a change of policy." In this case, a notification imposing municipal taxation without adhering to mandatory procedural guarantees (opportunity to be heard) was struck down as it altered the legislative policy embedded in the Municipal Act, constituting an "essential change of policy" deemed non-delegable and ultra vires.

Essential Legislative Functions and the Requirement of Guidelines

The core of the doctrine against excessive delegation lies in the non-delegability of essential legislative functions. The legislature must lay down the policy and principles, leaving only the execution and ancillary details to the delegate. The absence of such policy or guiding principles renders the delegation vulnerable to challenge.

Defining Policy and Standards

In Hamdard Dawakhana (Wakf) Lal Kuan, Delhi And Another v. Union Of India And Others (1960 AIR SC 554, Supreme Court Of India, 1959), the Supreme Court struck down Section 3(d) of the Drug and Magic Remedies (Objectionable Advertisement) Act, 1954, which empowered the executive to specify additional diseases or conditions for the purpose of the Act. The Court found this to be an instance of excessive delegation as the legislature had not laid down any "criterion or standard nor any principle upon which a particular disease or a condition is to be specified." This lack of guidance conferred uncanalized power on the executive. The distinction between conditional legislation (where the delegate determines when a legislatively declared rule becomes effective) and delegated legislation (where the delegate supplies details within prescribed limits) was also highlighted, drawing from this case in Manilal Bhukhandas Chevli v. Industrial Court, Gujarat And Others (Gujarat High Court, 1964) and State Of T.N. v. K. Sabanayagam (1998 SCC 1 318, Supreme Court Of India, 1997).

Similarly, in A.N Parasuraman And Others v. State Of Tamil Nadu (1989 SCC 4 683, Supreme Court Of India, 1989), the Tamil Nadu Private Educational Institutions (Regulation) Act, 1966, was held ultra vires because it conferred broad discretionary powers on authorities without adequate legislative guidelines. The Court emphasized that "without clear constraints and standards, the discretionary powers vested in the competent authorities were susceptible to arbitrariness and discrimination, thereby infringing upon Article 14 of the Constitution."

The Gauhati High Court in Md. Zakir Hussain v. State Of Assam And Ors. (Gauhati High Court, 2003), reiterating the principles from Devi Das Gopal Krishnan & Ors. v. State of Punjab & Ors. (1967 INSC 100, Supreme Court Of India, 1967), cautioned that courts should not "always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities." The essential legislative function is the determination of legislative policy and its formulation as a rule of conduct.

Delegation of Taxing Powers

The power to tax is a sovereign legislative function. Its delegation is scrutinized strictly. In Devi Das Gopal Krishnan & Ors. v. State of Punjab & Ors. (1967), the original Section 5 of the East Punjab General Sales Tax Act, 1948, which conferred unrestricted power on the government to fix tax rates, was declared void for lack of legislative guidelines. However, a subsequent amendment capping the tax rate ("not exceeding two pice in a rupee") was upheld as it provided reasonable parameters. This case underscores that while the legislature can delegate the power to fix rates, it must provide a policy or ceiling.

The Supreme Court in Municipal Corporation Of Delhi v. Birla Cotton, Spinning And Weaving Mills, Delhi And Another (1968 SCC 3 251, Supreme Court Of India, 1968) upheld the delegation of taxing powers to the Municipal Corporation. The Court found that the Delhi Municipal Corporation Act, 1957, provided sufficient safeguards, including the nature of taxes that could be levied, the requirement of Central Government sanction, budgetary procedures, and the democratic accountability of the elected municipal body. These factors negated the charge of excessive delegation. The Court distinguished this from situations where no such guiding principles or checks exist.

In contrast, the challenge in Gurcharan Singh v. Union Territory Chandigarh & Others (Punjab & Haryana High Court, 2012) to Section 7 of an Act, concerning levy of conversion charges, was based on the argument that it suffered from excessive delegation due to lack of guidelines and limits, citing Devi Das Gopal Krishnan.

The case of Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner Of Sales Tax And Others (1974 SCC 4 98, Supreme Court Of India, 1973) is significant. The Court upheld Section 8(2)(b) of the Central Sales Tax Act, 1956, which adopted state-level tax rates for inter-State sales if they exceeded a certain threshold. The Court reasoned that Parliament had laid down a clear legislative policy: to prevent tax evasion and ensure that central sales tax rates were not lower than local state rates. Parliament retained ultimate control as it could amend or repeal the provision. This was not seen as an abdication of essential legislative functions.

The power to grant exemptions from tax also requires careful consideration. In Indian Express Newspapers (Bombay) Private Ltd. And Others v. Union Of India And Others (1985 SCC 1 641, Supreme Court Of India, 1984), while dealing with import duties on newsprint, the Court acknowledged the government's power to tax but emphasized that such power, including the power to grant exemptions under Section 25 of the Customs Act, 1962 (a form of subordinate legislation), must be exercised reasonably and not in a manner that infringes fundamental rights like the freedom of press (Article 19(1)(a)). The Court directed the government to reassess the levies, implying that unguided or arbitrary exercise of such delegated power is impermissible.

Delegation and Fundamental Rights

When delegated legislation touches upon fundamental rights, the scrutiny is even more stringent. In Chintaman Rao v. State Of Madhya Pradesh (1951 SCC 0 118, Supreme Court Of India, 1950), an Act that empowered the executive to prohibit the manufacture of bidis during the agricultural season was struck down. The Court found the restriction, though purportedly in public interest, to be excessive and not a "reasonable restriction" under Article 19(6) on the right to carry on trade (Article 19(1)(g)). While this case primarily dealt with the reasonableness of a statute itself, the principle extends to delegated legislation: any power delegated to restrict fundamental rights must be accompanied by clear standards to ensure the restrictions are reasonable and proportionate.

The Indian Express Newspapers case (1985) directly addressed the impact of delegated fiscal power (imposition of customs duty via notifications) on the freedom of press. The Court held that while newspapers are not immune from general taxation, a tax that unduly burdens the press and curtails circulation could violate Article 19(1)(a). The power to impose such duties, if delegated, must be structured to prevent such outcomes.

In Hamdard Dawakhana (1959), apart from the issue of vague delegation under Section 3(d), Section 8 of the Act, which empowered authorities to seize contravening advertisements without adequate safeguards, was struck down for violating Articles 21 and 31 (as it then stood), indicating that delegated powers cannot authorize actions that infringe fundamental rights without due process or clear justification.

Permissible Delegation: Safeguards and Control

Delegation is permissible and, indeed, necessary. The key is the presence of safeguards. As stated in Deccan Chronicles Holdings Limited v. Union Of India (Madras High Court, 2014), "A delegated legislation permits utilisation of experience and consultation of interest effected by the practical operation of statutes." The determination of excessive delegation depends on "the subject matter, scheme, provisions of the statute including its preamble and the facts and circumstances... The authority to whom it is delegated is also an important factor."

The Supreme Court in S.S Moghe And Others v. Union Of India And Others (1981 SCC 3 271, Supreme Court Of India, 1981) held that a rule allowing a Screening Committee to adjudge suitability for appointment to a service, subject to instructions from the Controlling Authority, did not suffer from excessive delegation. The Court noted that when supervisory power is vested in a high government officer, it is generally presumed to be exercised reasonably.

The nature of the delegate also matters. Delegation to an elected body like a Municipal Corporation, as in Municipal Corporation Of Delhi v. Birla Cotton (1968), is often viewed more leniently due to inherent democratic accountability, provided the parent Act lays down policy and limits.

The concept of conditional legislation, as distinct from delegated legislation, also provides a permissible avenue. In State Of Meghalaya v. Ka Brhyien Kurkalang (1972 SCC 1 148, Supreme Court Of India, 1971), a regulation that selected certain laws to be applied to a district but left the timing and specific area of application to the Governor was upheld as conditional legislation. The legislative authority (Governor in this context) had already determined which laws were to be applied; only the conditions for their application were left to executive discretion. This was deemed not to be excessive delegation.

Grounds for Challenging Delegated Legislation

Delegated legislation can be challenged on several grounds. As summarized in Gaurav Kumar v. Union Of India (Supreme Court Of India, 2024), these include:

  • Lack of legislative competence to make the delegated legislation.
  • Violation of fundamental rights guaranteed under the Constitution.
  • Violation of any provision of the Constitution.
  • Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act (ultra vires the parent Act).
  • Repugnance to any other enactment.
  • Manifest arbitrariness.

The Gujarat High Court in Jayeshbhai Kanjibhai Kalathiya v. State Of Gujarat Through Principal Secretary (Gujarat High Court, 2010) aptly stated, "Even though a parent Act might not be unconstitutional, an order made thereunder (delegated legislation) can still be unconstitutional... Every order made under a statutory provision must not only be within the authority conferred by the statutory provision, but must also stand the test of constitutionality."

The challenge in Employees' State Insurance Corporation v. National Printing Press, Jaipur, And Another (1975 SCC ONLINE RAJ 8, Rajasthan High Court, 1975) regarding Rule 42 of the Rajasthan State Employees' Insurance Court Rules, 1959 (prescribing a limitation period for execution of decrees) being outside the scope of the rule-making power under Section 96(1)(b) of the parent Act, exemplifies a challenge based on exceeding the authority conferred by the enabling Act.

The Supreme Court in Global Energy Limited And Another v. Central Electricity Regulatory Commission (2009 SCC 15 570, Supreme Court Of India, 2009) struck down certain clauses of a regulation as ultra vires the Constitution and the parent Act. The Court emphasized that "delegated legislation should establish the structural conditions within which those processes can function effectively" and that "when the provision inherently perpetuates injustice... and brings uncertainty and arbitrariness it would be best to stop the Government in the tracks."

A challenge can also arise if the delegation is to an inappropriately low-level authority for exercising essential functions, as suggested in the arguments in Glaxosmithkline Consumer Healthcare Ltd…. v. The State Of Punjab & Others (Punjab & Haryana High Court, 2012), where a notification was challenged for delegating essential legislative powers to a Conciliation Officer.

Conclusion

The doctrine of excessive delegated legislation serves as a vital constitutional check on the exercise of legislative power in India. While acknowledging the administrative necessity of delegation, Indian jurisprudence, through a series of landmark pronouncements, has firmly established that the legislature cannot efface itself or abdicate its essential functions. The primary responsibility of determining legislative policy and enacting it into a binding rule of conduct must remain with the legislature. Any delegation must be accompanied by clear enunciation of policy, standards, or guidelines to channel the delegate's discretion and prevent arbitrariness. The stringency of judicial review increases when delegated powers impinge upon fundamental rights or involve core sovereign functions like taxation.

The courts in India have consistently endeavored to strike a balance, ensuring that while the wheels of governance run smoothly through permissible delegation, the constitutional mandate of legislative accountability and the protection of citizens' rights against uncanalized power are not compromised. The principles evolved require that delegated legislation remains subordinate, ancillary, and within the clearly defined contours set by the parent statute and the Constitution. The ongoing evolution of this doctrine reflects the judiciary's commitment to preserving the democratic ethos and the rule of law in the face of increasingly complex governance challenges.