Excessive Delegation | Administrative Law - CLAT PG PDF Download

Background

The legislature must perform essential and primary legislative functions itself and cannot delegate these to the executive. Essential functions include determining legislative policy and formulating rules of conduct.

• Once the legislature exercises its essential powers, it can delegate ancillary functions to the executive.
• In the case of Arvinder Singh v. State of Punjab (1979), it was emphasized that the Constitution establishes three branches of government—legislative, executive, and judicial—and each must uphold its powers to avoid betraying the Constitution.

Nature and scope

• Parliament does not have inherent legislative power; it is delegated this power by the Constitution. Therefore, Parliament cannot delegate its legislative functions to the executive, as this would be unconstitutional. In countries like Great Britain, excessive delegation is a political issue, while in the US and India, it is primarily a judicial concern.
• Abdication refers to the abandonment of legislative power by the legislature in favor of the executive or an external agency. This can be partial or total. Delegation of legislative power does not necessarily mean abdication, and the determination of abdication is a matter of fact.
• When the legislature fails to legislate and hands over its primary functions to the executive or any external agency, it is considered to be abdicating its legislative power. Abdication can be either partial or total.
• The power to delegate is subject to the condition that the legislature does not abdicate or erase itself by creating a parallel legislative body.
• However, the delegation of legislative power does not automatically imply abdication or complete effacement. What constitutes abdication and which cases fall under this category is always a matter of fact, and it is not possible to define it or establish a universally applicable rule.

Principles of Excessive Delegation

When assessing whether there is excessive delegation, three broad principles should be considered:

• Essential Legislative Function: Enacting laws and determining legislative policy are core functions that cannot be delegated.
• Modern Complexities: Given the complexities of contemporary situations, it is impractical for the legislature to cover every detail in laws. Therefore, delegation of certain functions is necessary as long as the legislature establishes the legislative policy.
• Lawful Delegation: If the power granted to the executive is lawful and permissible, the delegation cannot be deemed excessive merely because the legislature could have made more detailed provisions.

Test for Excessive Delegation

• When challenging a statute on the grounds of excessive delegation, it is crucial to determine whether the delegation involves the surrender of essential legislative functions and whether the legislature has left the formulation of policy and principles to the delegate.
• If the answer is affirmative, it indicates excessive delegation; if negative, the challenge fails.
• Statutes challenged for excessive delegation should be subjected to two tests:
• Delegation of essential legislative functions.
• Whether the legislature has outlined its policy and principles to guide the executive.
• In assessing whether the legislature has overstepped its authority in defining policy and principles, the focus should be on the substance of the actions rather than mere formalities.

Powers and Duties of Courts

• The Constitution grants legislative power to representatives of the people to ensure that it is exercised in their name and by them through their representatives. The rule against excessive delegation is a necessary aspect of popular sovereignty.
• However, considering the diverse activities of a modern welfare state, the legislature may lack the time and expertise to handle detailed matters, making subordinate legislation a practical necessity.
• Delegated legislation is justified by the overburdened legislature and the complexities of modern society. If the legislature sets legislative policy and standards, courts will not interfere with the delegation of non-essential functions to the executive.
• Justice Subbarao's observations in the case of VasanLal Maganbhai Sajanwala v. State of Bombay (1961) highlight that the Constitution empowers the legislature to make laws and determine legislative policy. While the legislature cannot abdicate its functions, it must delegate details to the executive due to the complexities of a welfare state.
• However, there is a risk that an overburdened legislature or a strong executive may exceed delegation limits, failing to set clear policies or standards, and conferring arbitrary powers on the executive.
• This self-effacement of legislative power in favor of another agency, either entirely or partially, exceeds permissible delegation limits.