Delegated Legislation is defined as the power given to the executor to make law, rule, bye-law, order etc by the sovereign(legislature) on his behalf or delegate his own power to make them. sometime legislature gave them more power without the policy of the law, laying down the legal principles and standards for the guidance of the delegate to promulgate delegated legislation that creates a parallel law-making body which is against the doctrine of separation of powers. To stop this type of practice doctrine of excessive delegation came in the place which makes the excessive delegation unconstitutional. In this article, I will explain why is the requirement of this doctrine and how the judiciary using it to limit the delegated legislation.
Legislature body is not in touch with the public day-to-day matter as the administration are. So, giving the power of the legislature to executor was good for making policy, law etc. Also, taking the advice of experts is good for making policy, law etc. But giving excessive power is not good because it creates a parallel legislature body which is not even representation of people. Also, by giving excessive delegation, the legislature is basically abdicating his legislature power. In a democratic system, people choose their representative for making law and order. If the unselected person making the law then it would be bad for a democratic system. If no standards are prescribed to limit delegation of power, executor gets a blank paper to make any rules they like and become the primary legislator. Thus, this doctrine promotes the democracy in the society.
The doctrine of the excessive delegation also checks on the legislature framing proper guidance while delegated his power to administrative bodies. “It is equally well settled that a delegatee must exercise its jurisdiction within the four corners of its delegation.”
In other words, the discretion of the delegation is controlled. The doctrine also provides the courts with a judicial tool to control delegation of legislative power beyond a legitimate degree. Because of that court obligate the legislature to give some attention to frame the board policies and apply them as a law rather them leave the entire matter to administrative discretion. In the absence of such restriction, the executive may believe that the legislature hand over the blank paper in the matter of delegated legislation. In the absence of this doctrine, the court will be left with no mechanism to control delegation of legislative power. “As the CMP report insists, delegated legislation has become inevitable but the question of control has become crucial.”
This doctrine does obligate to the legislature to sate some policies, principles and guidelines in the Act to guide the exercise of delegated power to some extend and the courts can use this doctrine to check the instances of delegation. It also helps the judiciary by strengthening the application of the doctrine of ultra vires to judicially validity of the delegated legislation itself. Because if a statue has the policy regarding the use of delegated power then it would be easy for the court to check whether the action of delegated authority is ultra vires or not and reduce the chance of misuse of power. Because of this reason, I would suggest that this doctrine should be used to limit the administration power while using delegated legislation and it promote democracy in the country.
In Jyoti Pershad v. Administrator, Union Territory of Delhi , laid down “principle to determine excessive delegation as follow:
- Essential legislation functions to make law and to determine legislative policy cannot be delegated.
- If the power is conferred on the executive in a manner which is lawful and permissible, the delegation cannot be held to be excessive merely because the legislature could have made more detailed provision”
In India, the Court in Gwalior Rayon Co. v. Asst. Commr. Of sales tax case Minority opinion stated that legislature has the power to repeal the delegated provision there should no need to lay down rule or policy because legislature retains its ultimate control by repeal the provision. If that reasoning was supported then there is no restriction on the legislature in the matter of delegation. Majority opinion rejected that reasoning by stated that:
the rule against excessive delegation of the legislative authority flows from and is a necessary postulate of the sovereignty of the people. The doctrine of excessive legislation should be regard as very well established in India which means that the legislation cannot delegated uncanalised and uncontrolled power. Thus, while delegating legislative power, the legislature should lay down legislative policy, standards or guidelines for delegate to follow.”
In applying this doctrine of excessive delegation, apart from considering the discretion given by an Act to delegated legislation, the courts also check the procedural safeguards contained in the Act against misuse of power.
“A completely unlimited blanket power where there is neither any guidance to the delegate, not any procedural safeguards against improper exercise of power by the delegate, can be held invalid as excessive delegation” The Supreme court has enunciated the doctrine of excessive delegation in Registrar, Co-operative Societies v. K. Kunjabmu as follow:
“…the power to legislate carries with it the power to delegate. But excessive delegation may amount to abdication delegation unlimited may invite despotism unlimited. So, the theory has been evolved that the legislature cannot delegate its essential legislative function. Legislate it must, by laying down policy and principle and delegate it may to fill in detail and carry out policy…. If guidance there is, wherever it may be found, the delegation is valid.”
In the same case, the court interpreted ‘wherever it may be found’ as that the guidance may be found in the express provision or other provision of the Act, the preamble, the scheme or even the subject-matter of the Act and even from the factor external to the act. In my view it was incorrect reasoning by the courts, it was weakened the doctrine of excessive delegation because the court was considering or looking in everything which has a connection with the Act. After that formulate or interpret the statue to make the rule or policy. If the court was telling what can you do or don’t then there would be a major fault on the legislature part while exercising delegation because guidance was not specified by the legislature in delegated provision. That leads to show that legislature abdicated his legislative power which was a bad practice of making law. For strengthen, this doctrine court would make the rule that there should be the express provision of delegation guidance, policies or standards. If not, then the provision would be invalid.
Some cases where delegated provision was struck down due to excessive legislation were, In H.R. Banthia v. Union of India case, the supreme court declared section 5(2)(b) of the gold (control) act, 1958 invalid because it was very wide and suffered from the vice of “excessive delegation”. In many cases the court considered the validity of the delegated provisions with reference to the doctrine of excessive legislation these cases are: –
- skeleton legislation
- power to inclusion and exclusion
- power to amend schedule etc.
In my view, the legislature should delegate narrow power to the executive in delegated legislation. The main purpose to delegate power only the fill up the details which are necessary to consider for making law or policy or social welfare. Constitution already provided some power to administration authority to make law when it was necessary.
The executive main function is to check up that the parliament made law was followed up by the public or not.People were selected their representative for a purpose. Legislature abdicates the said purpose through giving wide power to the executive in delegated legislation. In some cases, the supreme court upheld the “wide provision of delegated legislation because in the modern world it is not possible for parliament to lay down some norms which could be valid for all time to come.”
I am not satisfied with this type of reasoning because changing in the society with time is an uncertain event which cannot be controlled by any norm for all time to come, like in communication, while making contract law no one think about mobile phone, e-mails to come a way of communication but judiciary and parliament cover all the situation over time. So, the point is that the judiciary does not create the exception in the doctrine of excessive delegation.
In current, aadhara (targeted deliveries of financial and other subsidies, benefits and service) act of 2016 is also in debate of excessive delegation, which it seems to me that as an excessive delegation because some provision give more discretion to administration like decide which body part is covered under biometric data, also clause 7 which allows the central and state government to decide the subsidies, benefit or services that might make identification with an aadhaar number mandatory. NCAJ was also one of the examples of excessive delegation. Therefore, we need the doctrine of excessive delegation to control the delegation.