Permissible Delegation Legislation | Administrative Law - CLAT PG PDF Download

Permissible Delegation

Permissible delegation involves the transfer of specific powers or responsibilities from the legislature to the executive, allowing for flexibility and efficiency in implementing laws. This practice is often seen in various statutes and legal frameworks.

Commencement

• Appointed Day Clause: Some statutes include a provision that allows the Government to specify a date for the Act to come into force. For example, Section 1(3) of the Consumer Protection Act, 1986, empowers the Central Government to decide when the Act will take effect through a notification.
• Valid Delegation: Such provisions are considered valid because, as noted by Sir Cecil Carr, the legislature sets the framework (the "gun and target") and leaves it to the executive to implement (the "trigger").

Supplying Details

• When the legislative policy is set by the legislature, the executive may be delegated the task of supplying details to implement the policy. This is a common form of delegation seen in various statutes.
• In these cases, the legislation created by the Legislature is often referred to as "skeleton legislation." The Legislature establishes general principles in the statute, while the executive is given the authority to fill in the specifics.
• For instance, Section 3 of the All India Services Act, 1951, grants the Central Government the power to make rules regulating the conditions of service for All India Services. The Committee on Ministers' Powers recognized the potential risks of such provisions and emphasized the importance of clearly defining the limits of the law-making authority granted to a Minister.
• When discretion is conferred, its boundaries should be defined with equal clarity to avoid ambiguity.

Inclusion & Exclusion

• Inclusion and exclusion refer to the legislative practice where an Act is initially made applicable to certain areas or classes of persons, with the Government empowered to extend its provisions to other territories, individuals, or commodities.
• For instance, the Transfer of Property Act, 1882 was made applicable to most of India, with the Government authorized to extend its provisions to specific excluded areas.
• Similarly, the Essential Commodities Act, 1955 applied to certain specified commodities but allowed the Central Government to declare additional commodities as "essential" and subject to the Act's provisions.
• This approach provides legal flexibility without altering legislative policy. However, in cases like Hamdard Dawakhana, such provisions have been deemed ultra vires (beyond legal power).

Exclusion

• Exclusion in the context of legislation refers to the power granted to the government to exempt certain individuals, regions, or commodities from the application of specific statutes.
• For instance, Section 36 of the Payment of Bonus Act, 1965 allows the government to exempt certain establishments or classes of establishments from the Act's provisions.
• This flexibility is crucial as the legislature, often overwhelmed with legislative tasks, may not have the capacity to address all potential hardships and challenges associated with enforcing the legislation.
• The Minimum Wages Act, 1948, aims to set minimum wages in certain employments. While the Act applies to specified employments, the government has the authority to add other employments to the schedule, thus extending the Act's reach. The Act also outlines the criteria the government must consider when exercising this power.
• In the case of Edward Mills Co. v. State of Ajmer AIR 1955, the Supreme Court upheld the provision, arguing that the Act's policy of fixing minimum wages to prevent labor exploitation was clear and evident.

Suspension

• Some statutes grant the Government the authority to suspend or relax certain provisions within the law. For instance, under Section 48(1) of the Tea Act, 1953, the Central Government has the power to suspend the operation of all or specific provisions of the Act under certain circumstances.

Application of Existing Laws

• Some statutes empower the executive to adopt and apply existing laws from other States to a new area with minimal modifications (incidental changes).
• In such cases, there is no unconstitutional delegation because the legislative policy is established by the competent legislature in the statute.

Modification

• In certain situations, statutes grant the executive the authority to modify existing laws before applying them. This power is significant as it involves amending an Act, a function typically reserved for the legislature. However, such flexibility is sometimes essential to address local circumstances.
• For example, under the Delhi Laws Act, 1912, the Central Government extended the application of the Bombay Agricultural Debtors' Relief Act, 1947, to Delhi. The Bombay Act had specific limitations, such as applying only to agriculturists with an annual income of less than Rs 500. The Central Government removed this limitation when extending the Act's application to Delhi.
• When delegating power to the executive to modify a statute, two key factors should be considered:
• Need and Necessity: Evaluating whether there is a genuine need for delegating such power.
• Risk of Misuse: Assessing the potential risk of misuse of this power by the executive.
• Therefore, it is crucial for the legislature to articulate policy in clear and unambiguous terms before delegating such powers to the administration.

Prescribing Punishments

• In certain cases, the legislature delegates the authority to the executive to impose punitive measures. For instance, under Section 37 of the Electricity Act, 1910, the Electricity Board is empowered to prescribe punishments for violations of the Act's provisions, subject to a maximum punishment specified in the Act.
• Similarly, Section 59(7) of the Damodar Valley Act, 1948, grants the power to prescribe punishment to a statutory authority without any maximum limit set by the parent Act.
• The Indian Law Institute considers this practice acceptable, provided two safeguards are in place:
• Maximum Punishment: The legislature must determine the maximum punishment that the rule-making authority can impose for breaching regulations.
• Delegation to Non-Government Authorities: If the power is delegated to an authority other than the State or Central Government, the exercise of this power should be subject to prior approval or subsequent sanction by the State or Central Government.

Framing of Rules

Henry VIII Clause (Removal of Difficulties)
The Henry VIII clause, also known as the 'removal of difficulties' clause, grants the government the power to modify existing statutes to address unforeseen difficulties that may arise during implementation. This clause is particularly relevant when a new law is applied to a different area or under varying socio-economic conditions.
There are generally two types of 'removal of difficulties' clauses found in statutes:

• Narrow Clause: This type empowers the executive to remove difficulties in a manner consistent with the parent Act. An example is Section 34(1) of the Administrative Tribunals Act, 1985, which allows the Central Government to make necessary provisions to remove difficulties, as long as they are not inconsistent with the Act.
• Wide Clause: This type gives the executive broader authority to modify the parent Act or any other Act in the name of removing difficulties. Such provisions are often for a limited period and have faced criticism for potentially enabling executive overreach.

Judicial Interpretation of Removal of Difficulties Clauses

• In the case of Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha AIR 1967, the Supreme Court examined the legality of a removal of difficulties clause in the Payment of Bonus Act, 1965. The Court held Section 37(1) of the Act ultra vires due to excessive delegation, as it granted the Central Government unchecked authority to determine and remove difficulties or doubts.
• The minority opinion in the case argued that the Central Government's functions were not legislative but aimed at facilitating the Act's purpose. This perspective was later embraced by the Supreme Court in subsequent cases, such as Gammon India Ltd. v. Union of India AIR 1974.
• Post-Jalan Trading Co., the Court adopted a more lenient stance towards removal of difficulties clauses, allowing the government to make minor adjustments to ensure the Act's functionality without altering its core structure.

Committee on Ministers' Powers
The Committee on Ministers' Powers expressed concern over the use of Henry VIII clauses, recommending their abandonment except in exceptional cases. Such clauses should only be used for bringing Acts into operation and with strict time limits.

Functions That Cannot Be Delegated (Impermissible Delegation)

Certain functions cannot be delegated by the legislature to the executive. These include:

1. Essential Legislative Functions :Legislative policy must be determined by the legislature itself. Delegating essential legislative functions to the executive would create a parallel legislature, which is not permissible.
2. Repeal of Law: The power to repeal a law is a legislative function and cannot be delegated to the executive. Delegating this power would constitute excessive delegation and be ultra vires.
3. Modification: Delegating the power to modify an Act in significant aspects is an essential legislative function. However, non-essential changes may be delegated.
4. Exemption: Similar to modification, the power of exemption cannot be delegated without establishing norms and policies for the executive's guidance.
5. Removal of Difficulties: The legislature cannot enact a Henry VIII clause that delegates essential legislative functions to the executive under the pretext of removing difficulties.
6. Retrospective Operation: While the legislature has the power to make laws prospectively or retrospectively, this power cannot be delegated. Granting retrospective effect to an Act is a legislative function.
7. Future Acts: The legislature can empower the executive to adopt existing laws from other States, but it cannot delegate the power to adopt future laws, which is a legislative function.
8. Imposition of Taxes: The power to impose taxes is a legislative function and cannot be delegated to the executive. Under Article 265 of the Constitution, taxes can only be levied or collected by authority of law, which means a law enacted by the legislature, not one made by the executive.
9. Ouster of Jurisdiction of Courts: Ousting the jurisdiction of courts is a purely legislative function and cannot be delegated to the executive.
10. Offenses and Penalty: Defining an act as an offense and prescribing penalties for it is an essential legislative function that cannot be delegated. However, if the legislature sets standards for the executive to follow in defining offenses and penalties, such delegation is permissible.