It basically means the limits that are permissible within a constitution of a country through which Legislature with all his right can delegate its power of rule making to other agencies of administration. The aim of extending the power of the government is to handle socio-economic problem
Position in India: The position and Constitutionality of delegated legislation in India can be seen in various cases. It is divided into two phases i.e., before independence or we can say it as pre-independence and post-independence.
Pre Independence Period :
As regards pre-Constitution period relating to delegated legislation in India, Queen v. Burah 1878, is considered to be the leading authority propounding the doctrine of conditional legislation. In 1869, the Indian legislature passed an Act purporting to remove the district of Garo Hills from the jurisdiction of the civil and criminal courts and the law applied therein, and to vest the administration of civil and criminal justice within the same district in such officers as the Lieutenant-Governor of Bengal might appoint for the purpose. By section 9, the Lieutenant-Governor was empowered from time to time, by notification in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the provisions contained in the Act to the Jaintia, Naga and Khasia Hills and to fix the date of application thereof as well. By a notification dated October 14, 1871, the Lieutenant Governor extended all the provisions of notification which was challenged by Burah who was convicted of murder and sentenced to death.
The High Court of Calcutta by a majority upheld the contention of the appellant and held that section 9 of the Act was ultra vires the powers of the Indian Legislature. In the opinion of the Court, the Indian Legislature was a delegate of the Imperial Parliament and as such further delegation was not permissible.
Thereupon the Government appealed to the Privy Council. The Act was held valid by the Privy Council. It was held that the Indian Legislature was not an agency or delegate of Imperial Parliament and it had plenary powers of legislation as those of Imperial Parliament. It agreed that the Governor-General in Council could not, by legislation create a new legislative power in India not created or authorised by the Council’s Act of Imperial Parliament. However, in fact it was not done. It was a case of only conditional legislation, as the Governor was not empowered to pass new laws but merely to extend the provisions of the Act already passed by the competent legislature upon fulfilment of certain conditions.
The decision of the Privy Council is open to two different interpretations. One interpretation is that since the Indian legislature is not a delegate of British Parliament, there is no limit on the delegation of legislative power. But the other interpretation is that since Privy Council has validated only conditional legislation, therefore, delegation of legislative power is not permissible. 43
The question of constitutional validity of delegation of powers came for consideration before the Federal Court in Jatindra Nath Gupta v. Province of Bihar 1949, In this case the validity of section 1(3) of Bihar Maintenance of Public Order Act, 1948 was challenged on the ground that it empowered the Provincial Government to extend the life of the Act for one year with such modification as it may deem fit. The Federal Court held that the power of extension with modification is not a valid delegation of legislative power because it is an essential legislative function which cannot be delegated. In this way for the first time, it was ruled that in India Legislative powers cannot be delegated.
Post Constitution period :
As the decision in Jatindra Nath case had created confusion, the question of permissible limits of delegation of legislative power became important. Therefore, in order to get the position of law clarified, the President of India sought the opinion of Supreme Court under Article 143 of the Constitution. The question of law which was referred to the Supreme Court was of great Constitutional importance and was first of its kind. The provision of three Acts, viz.,
- Section 7 of the Delhi Laws Act, 1912;
- Section 2 of the Aimer-Mewar (Extension of Laws) Act, 1947; and
- Section 2 of the Part C States (Laws) Act, 1950, were in issue in Delhi Laws Act Case 1951,
There were a few Part C States. Delhi was one of them. Part C States were under the direct administration of the Central Government as they had no legislature of their own. Parliament had to legislate for these States. It was, therefore, that Parliament passed a law, the Part C States (Laws) Act, 1950.
The Central Government was authorised by section 2 of the Part C States (Laws) Act, 1950 to extend to any Part C State with such modifications and restriction as it thinks fit, any enactment in force in a Part A State, and while doing so, it could repeal or amend any corresponding law (other than a central law) which might be in force in the Part C States. Really, it was a very sweeping kind of delegation.
The Supreme Court was called upon to determine the constitutionality of this provision. All the seven judges who participated in the reference gave seven separate judgments “exhibiting a cleavage of judicial opinions on the question of limits to which the legislature in India should be permitted to delegate legislative power”
By a majority, the specific provision in question was held valid subject to two limitations:
- The executive cannot be authorised to repeal a law in force and thus, the provision which authorised the Central Government to repeal a law already in force in the Part C States was bad; and
- by exercising the power of modification, the legislative policy should not be changed, and thus, before applying any law to the Part C State the Central Government cannot change the legislative policy.
Principles laid down in the Reference Case
In Re Delhi Laws Act may be said to be “Siddhanatawali” as regards constitutionality of delegated legislation. The importance of the case cannot be under-estimated inasmuch as on the one hand, it permitted delegation of legislative power by the legislature to the executive, while on the other hand, it demarcated the extent of such permissible delegation of power by the legislature.
In this case it was propounded:
- Parliament cannot abdicate or efface itself by creating a parallel legislative body.
- Power of delegation is ancillary to the power of legislation.
- The limitation upon delegation of legislative power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the Constitution. Essential legislative power means laying down policy of law and enacting that policy into a binding rule of conduct.
- Power to repeal is legislative and it cannot be delegated.
The theme of Re Delhi Laws Act case is that essential legislative function cannot be delegated whereas non-essential can be delegated.