Delegated Legislation in England, USA and India | Administrative Law - CLAT PG PDF Download

Delegated Legislation in England

In England, Parliament is sovereign and has the primary authority to enact laws. However, as noted by C. K. Allen, the 19th century saw significant developments in subordinate legislation.

Reasons for Growth of Delegated Legislation

• The growth of delegated legislation in England was driven by similar reasons as in other countries, including the complexity, technicality, emergency, and expediency of various matters.
• Parliament often lacked the time and resources to address these issues in detail, leading to the delegation of legislative work to the government.

Development of Administrative Legislation

• Administrative legislation began to be seen as justifiable, with the understanding that legislation and administration are fundamentally different forms of power.
• The distinction between legislative and administrative functions proved inadequate, and administrative law had not yet emerged as a recognized branch of law.

Impact of World Wars

• During the two world wars, there was a significant increase in delegated legislation, impacting various aspects of citizens' lives such as housing, education, employment, pension, health, planning, production, preservation, distribution of essential commodities, and social security.
• In the 18th century, Parliament was compelled to delegate extensive law-making powers to the government, leading to criticism of the growing trend of delegated legislation.

Donoughmore Committee

• The issue of delegated legislation was referred to the Donoughmore Committee in 1929.
• The committee's report in 1932 acknowledged the extensive practice of delegated legislation and the extent to which Parliament had surrendered its functions.
• Despite concerns about potential abuse, the committee affirmed that delegated legislation is both legitimate and constitutionally desirable within certain limits and safeguards.

Delegated Legislation in the USA

• The U.S. Constitution, particularly Article 1, explicitly grants legislative powers to Congress.
• Article II vests executive power in the President, while Article III empowers the Judiciary to interpret the Constitution and declare statutes unconstitutional if they violate constitutional provisions.
• In the landmark case of Field v. Clark (1892), the U.S. Supreme Court emphasized that Congress cannot delegate its legislative powers to the President, a principle crucial for maintaining the integrity of the government system established by the Constitution.

2. Delegatus non protest delegare (a delegate cannot further delegate)

• This doctrine asserts that a delegate cannot further delegate their powers.
• Since Congress is a delegate of the people, it cannot delegate its legislative powers to the executive or any other agency.
• Generally, an agent cannot delegate powers conferred upon them due to their fitness and the trust placed in them.
• Legislatures are in this position concerning the people they represent.

Pragmatic Considerations and Judicial Balance

• Given the increased governmental functions, it became impractical for Congress to enact all statutes with intricate details.
• The Supreme Court recognized this reality and sought to balance the Doctrine of Separation of Powers, which prohibits delegation, and the Necessity of Delegation due to modern governmental demands.

Cases Illustrating Delegated Legislation

• Under Section 9(c) of the National Industrial Recovery Act (NIRA), Congress authorized the President to prohibit the transportation of oil in interstate commerce exceeding state-fixed quotas.
• The Supreme Court deemed the delegation invalid, stating Congress failed to establish any legislative policy or standard.

Schechter Poultry Corporation v. United States (1935)

• The Supreme Court unanimously invalidated Section (3) of the NIA Act, 1933, which allowed the President to approve codes of fair competition.
• The Court found the President's discretion virtually unfettered, constituting uncontrolled delegation.

National Broadcasting Company v. United States (1943)

• The Federal Communication Commission (FCC) was granted extensive powers under the Communications Act, 1934, to license broadcasting stations.
• Despite the vagueness of the criterion "Public Interest, Convenience, or Necessity," the Supreme Court upheld the delegation as valid.

Yakus v. United States (1944)

• The price administrator under the Emergency Price Control Act, 1942, was empowered to set maximum prices deemed "generally fair and equitable."
• Despite the flexibility granted to the administrator, the Supreme Court sustained the delegation, considering the standards adequate.

Mistretta v. United States (1988)

• The U.S. Sentencing Commission, established under the Sentencing Reforms Act of 1984, promulgated sentencing guidelines for various offenses and offenders.
• Mistretta challenged the guidelines, claiming excessive delegation of authority to the Commission.
• The Supreme Court ruled that Congress did not delegate legislative powers to the executive nor disrupt the constitutional balance among branches.

Whitman v. American Trucking Association (2001)

• The legislature delegated legislative powers to the Environmental Protection Agency (EPA) to establish "air quality criteria."
• The Supreme Court validated the delegation, allowing the EPA a degree of discretion in setting standards.

Evolution of Delegated Legislation

• The Supreme Court has shifted from traditional views, adopting a liberal approach toward delegated legislation.
• Pragmatic considerations now outweigh theoretical objections, reflecting the changing dynamics of governance and the necessity for delegation in modern administration.

Delegated Legislation in India

Pre-Constitution Period

• In this case, the area of Garro Hills was removed from the jurisdiction of civil and criminal courts.
• Section 9 of the Act empowered the lieutenant-governor to extend civil or criminal provisions applicable to Kashi,Jaintia, and Naga Hills to the Garro Hills.
• The lieutenant-governor could also fix the date for such application.
• On October 14, 1871, the lieutenant-governor extended all provisions of the Act to the districts of Kashi, Jaintia, and Naga Hills.
• A convicted applicant challenged this notification in court.

High Court Decision

• The High Court of Calcutta majority upheld the appellant's contention.
• It ruled that Section 9 of the Act was beyond the powers of the Indian legislature.
• The court argued that the Indian legislature was a delegate of the Imperial Parliament and sub-delegation was not allowed.

Privy Council Ruling

• On appeal, the Privy Council decided that the Indian legislature had full legislative powers like the Imperial Parliament.
• It acknowledged that the Governor-General in Council couldn't create new legislative powers in India not authorized by the council's Act.
• However, it clarified that the case involved conditional legislation, where the Governor could extend existing law provisions under certain conditions.

Jitendra Nath Gupta v. Province of Bihar, 1949

• The Bihar Maintenance of Public Order Act, 1948, was initially set to last for one year.
• The provincial government was given the power to extend the Act for another year.
• The Federal Court majority ruled that extending the Act beyond one year was a legislative act and could not be delegated.
• However, Justice Faysal Ali dissented, arguing that extending the Act for another year was not the same as re-enacting it.
• This view was later upheld in Sardar Inder Singh v. State of Rajasthan, 1957.

Post-Constitution Period

• This case was the first significant decision by the Supreme Court regarding delegated legislation after the Constitution came into effect.
• The President of India referred the case to the Supreme Court under Article 143 of the Constitution.
• Section 2 of the Part 'C' States Laws Act, 1952, authorized the Central Government to extend laws to any part 'C' state with specific notifications and restrictions.
• The Central Government could also repeal or amend laws in force in part 'C' states, except for Central Acts.
• The Supreme Court was asked to determine the legality of this provision.

Supreme Court Opinions

• All seven judges of the Supreme Court offered separate opinions on the limits of legislative delegation in India.
• The majority deemed the provision valid with two main limitations:
• The executive could not be granted the power to repeal an existing law.
• Modification of laws by the Central Government should not change legislative policy.

Significance of the Delhi Laws Case

• The Delhi Laws case was significant because it allowed the legislature to delegate legislative powers to the executive.
• It also defined the extent to which the legislature could delegate its powers.
• The majority opinions highlighted the need for legislative delegation in modern governance due to the complexities of contemporary issues.
• It was recognized that Indian legislatures, deriving their powers from the Constitution, could not delegate as freely as the British Parliament.
• There was a debate among the judges about the limits of permissible delegation.

In Hari Shankar Bagla v. State of MP, 1955

• The Essential Supplies (Temporary Powers) Act, 1946, empowered the central government to regulate the production and distribution of essential commodities.
• Section 6 allowed orders made under Section 3 to prevail over inconsistent provisions in other enactments.
• Both sections were challenged for excessive delegation of legislative power.
• The Supreme Court ruled that Section 6 aimed to bypass existing laws where there were inconsistencies.
• It also determined that there was no excessive delegation and sanctioned broad delegation of legislative power.

Post-Delhi Laws Case Developments

• In Hamdard Dawakhana v. Union of India, 1960, the Supreme Court struck down a Central Act for excessive delegation.
• The Drugs and Magic Remedies Objectionable Advertisements Act, 1954, aimed to control drug advertisements.
• Section 3 prohibited advertisements for specific diseases and allowed the central government to add more diseases to the list.
• The Supreme Court invalidated Section 3 because it lacked criteria or standards, making the delegated power uncontrolled.

In Gwalior Trade and Silk Manufacturing Company Limited v. CST, 1976

• Under Section 82 (b) of the Central Sales Tax Act, 1956, Parliament did not set a specific rate for Central sales tax.
• Instead, it adopted the rate applicable to the sale or purchase of goods within the appropriate state if such rate exceeded 10%.
• This section was challenged on the basis that Parliament abdicated its legislative function by not fixing the rate itself.
• The section was upheld by all five judges, who observed that sufficient guidelines were provided in the Act by Parliament.
• Justice Khanna rejected the argument that the legislature need not disclose any policy or principle when conferring power upon a delegate.
• The rule against excessive delegation of legislative authority stems from the sovereignty of the people.
• Justice Mathew emphasized that delegation involves granting discretionary power to another while reserving ultimate power for the legislature.
• Mathew J. observed that the legislature does not abdicate its function if it can repeal legislation and withdraw authority from the delegate.

In M. K. Papiah and Sons v. Excise Commissioner

• Sections 22 and 71 of the Karnataka Excise Act, 1966, were challenged for impermissible delegation of legislative power.
• Section 22 empowered the government to fix excise duty rates, and Section 71 allowed the government to make rules under the Act.
• The Supreme Court, led by Justice Mathew, upheld the sections, stating that laying rules before the legislature provided a check on delegated power.
• The court rejected the petitioners' argument that rules coming into force immediately lacked sufficient control over delegated legislation.
• Justice Mathew emphasized that such control was adequate considering modern complexities.
• This case showed a shift in the Supreme Court's view, aligning with the Privy Council's perspective from 1878.

In Hansraj L. Chulani v. Bar Council of Maharashtra and Goa

• The State Bar Council established a rule regarding the "right to practice" legal profession, disqualifying individuals engaged in other occupations.
• The petitioner, a medical professional, argued that the rule represented excessive delegation of legislative function by the legislature.
• However, the court upheld the rule, stating that it aligned with the object, purpose, and scheme of the Act and provided sufficient guidelines.

In St. John Teachers Training Institute v. National Council for Teachers Education

• The Supreme Court highlighted the necessity of delegated legislation, stating that the legislature cannot anticipate every administrative challenge in implementing a statute.
• Delegated legislation addresses these gaps and details.
• Rules created by the executive under delegated power cannot replace the law made by the legislature but can augment it.
• Delegated legislation, when made under the parent Act, holds the same force and effect as the Act itself if validly created.

In Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay Environmental Action Group

• The Supreme Court ruled that the presumption of constitutionality applies not only to laws enacted by Parliament or state legislatures but also to delegated legislation.

In M.P. High Court Bar Association v. Union of India

• The Supreme Court asserted that legislative power rests with the legislature under the Constitution.
• The legislature cannot delegate law-making authority to the executive.
• This means the legislature cannot create a parallel legislative body or diminish its legislative role.
• Essential legislative functions must be retained by the legislature, including determining legislative policy and formulating binding rules of conduct.
• However, once the legislature performs essential legislative functions and sets policy, it can delegate ancillary and subordinate powers to the executive to implement the policy and purpose of the Act.