Author Name:   rajesh.hittanagi

Delegated legislation and judicial trend in India, The rationale behind the doctrine of separation of power is to prevent despotism. At the same time, it is not possible to adhere to the doctrine strictly...

Judicial Treatment of the Delegation of Legislative Power under the Constitution of India

Abstract
The rationale behind the doctrine of separation of power is to prevent despotism. At the same time, it is not possible to adhere to the doctrine strictly. The experience of pragmatic approach of the administration is clearly demonstrating for the need of the sharing of the powers belonging to one organ by the other. Now we have reached a stage that there is no question of whether to delegate power or not? The issue that needs our attention is how to ensure that the power delegated is properly exercised by the regulatory agencies. The myriad form of existing control mechanisms are not adequate to see that the delegate is within the jurisdiction while exercising the power conferred. The judicial leniency in favour of upholding the validity of delegation can very well be inferred by the relevant cases decided. The Indian judiciary has tried to deal with the system of delegation of legislative power with the help of some doctrines like, doctrine of ultra-vires and excessive delegation. The judiciary is continuously consistent in holding that the supreme legislature should not abdicate its function by delegating its’ essential legislative functions. The courts have differed in ascertaining the contours of ‘essential legislative function’ in India. In the light of changing circumstances relating economic policy, science and technology, there is urgent compulsion to review the system of delegation of legislative power and its implications on the administration. This paper tries to inquire into the issue ‘Is the judicial trend relating to delegation of legislative power conforms to the intent of the founding fathers of the Constitution? It also investigates the need to revamp the doctrinal approach toward the delegation of legislative power. Some have expressed the view that the legislature is delegating more power than it is required. The paper attempts to signal some further research into the delegation of legislative power for securing the welfare of the society.

The governmental power is very much essential for a nation to preserve its’ resources and progress among the competing nations. The source of power is the constitution which the people have given to themselves. It is well established that the concentration of power is detrimental to the welfare of peoples. Even for the sake of convenience of the administration the power has to be distributed among different organs of the government. The main task of the legislature is to pass the legislation. There is a trend in practice at the present time that only a small part of the total legislation originates from the legislature. The bulk of the legislation is promulgated by the Executive as a delegate of the legislature, and this is known as “delegated legislation”.Normal practice is that the Legislature passes a law covering general principles relating to the subject matter and confers rule-making power on the Government, or on some other agencies of its’ choice. The delegation of legislative power is permissible only when the legislative policy is adequately laid down and the delegate is empowered to carry out the policy within the guidelines laid down by the legislature.

How to reconcile the doctrine of separation of powers with the delegation of legislative power to administrative agencies?
According to the doctrine of separation of powers, the legislature cannot exercise executive or judicial power; the executive cannot exercise legislative or judicial power; and the judiciary cannot exercise the other two powers.The Presidential form of Government in the U.S.A is based on the doctrine of separation of powers. But this doctrine is not strictly applied in the United States, and some exceptions to this doctrine are recognized in the Constitution of United States itself. In India, the parliamentary form of Government operates and is based on co-ordination of the executive and the legislature. The Supreme Court in Ram Jawaya Kapur v. State of Punjab, held that the Constitution had not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different branches of the government had been sufficiently differentiated and consequently it could be very well said that our Constitution did not contemplate assumption by one organ of the State of functions that essentially belong to another.

First attempt was made to reconcile the delegation of legislative power with the doctrine of separation of power by using the word ‘quasi’ to name quasi-legislative power. No matter, to soften a legal term by a ‘quasi’ is a time-honoured lawyer’s device, yet, in the sphere of administrative process it becomes illogical to grant legislative and judicial powers to administrative agencies and still to deny the name. Therefore, now it is being increasingly realized that the ‘cult of quasi’ has to move from any theoretical prohibition to a rule against unrestricted delegation circumscribed by the power of judicial review under the compulsion of modern government. Montesquieu himself never used the word ‘separation’ in his writing. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs of the state is the soul of the doctrine of separation of powers. It can be observed that “the Doctrine of separation of powers” in today’s context of liberalization, privatization and globalization cannot be interpreted to mean either ‘separation of power’ or ‘check and balance’ or ‘principle of restraint’ but ‘community of powers’ exercised in the spirit of cooperation by various organs of the state in the best interest of the people.

Some Reflections on Judicial Treatment of Delegation of Legislative Power to Regulatory Agencies.

In Gwalior Rayon Co v. Asst.Commissioner of Sales Tax, KHANNA,J., said: “The rule against excessive delegation of the legislative authority flows from and is a necessary postulate of the sovereignty of the people.” The Apex Court in Registrar Coperative Societies v. K.Kanjabmu observed: “delegation unlimited may invite despotism uninhibited.” There is no abdication of legislative functions so long as the legislature has expressed its will on a particular subject matter, indicated its policy and left the effectuation of the policy to subordinate legislation provided the legislature has retained the control in its hand with reference to it so that it can act as a check or a standard and prevent the mischief by subordinate legislation when it chooses to or thinks fit.While it is recognized that the doctrine of excessive delegation ought not to be applied in a pedantic manner because in the modern complex world, it may be difficult for the legislature to state policies or formulate standards very articulately and power has to be given to the Administration in broad terms to make rules according to the needs of the situation. But still the courts must ensure that the doctrine does not become just an incantation or an empty formality. The statement of policies in the statutes enable the courts later to apply the doctrine of ultra vires to delegated legislation in a more meaningful and effective manner.

We have taken up a decided case of the Apex Court dealing with delegation of legislative power to other agencies with a view to ascertain the judicial trend regarding delegated legislation India. In this case Roerich family had owned an Estate called Tatgunni Estate covering 470.19 acres, out of which 100 acres were granted to them by the State Government in the year 1954 for Linaloe cultivation. When the Land Reforms Act came into force, they filed declarations under Section 66 of the Act before the Land Tribunal, Bangalore South Taluk-II stating that they had no surplus lands to surrender to the State since the entire area held by them had been used for the cultivation of Linaloe which was exempted under Section 107(1)(vi) of the Land Reforms Act. The Land Tribunal, Bangalore vide order dated 15.3.82 dropped the proceedings instituted under the Act against them holding that the land used for cultivation of Linaloe did not attract the provisions of the Land Reforms Act. Dr. Roerich, it was stated, had sold 141.25 acres (which included 100 acres granted by the Government for Linaloe cultivation) to M/s K.T. Plantations Pvt. Ltd. by way of a registered Sale Deed dated 23.3.91 for a sale consideration of Rs.56,65,000/-. It was stated that Mrs. Devika Rani Roerich had also sold an extent of 223 acres 30 guntas to the Company on 16.2.1992 for a sale consideration of Rs.89,25,000/- by way of an unregistered sale deed, a transaction disputed by Mrs. Devika Rani.

The Department of Law and Parliamentary Affairs of the government of Karnataka in their note opined that the exemption given under Section 107 of the Land Reforms Act, 1961 can be withdrawn by the Government by issuing a notification as per Section 110 of the Land Reforms Act. Accordingly the notification was issued by the government. The main issue involved in this case ‘ Whether Section 110 of the Karnataka Land Reforms Act, 1961, as amended by the Karnataka Land Reforms amendment Act, 1973, (Act 1 of 1974),which came into effect from 01.03.1974, read with Section 79 B of the said Act, introduced by amending Act 1 of 1974,violates the basic structure of the Constitution, in so far as it confers power on the Executive Government, a delegatee of the Legislature, of withdrawal of exemption of Linaloe plantation, without hearing and without reasons?

The buyer Company in this case had challenged the validity of Section 110 of the Act primarily on the ground of excessive delegation of legislative powers on the State Government. This has to be examined by referring to certain provisions contained in various Chapters, the scheme of the Act, its object and purpose, legislative policy underlying in the provisions of the statute etc.

The Land Reforms Act was enacted by the Karnataka State Legislature to have a uniform law relating to land reforms in the State of Karnataka, relating to agrarian relations, conferment of ownership on tenants, ceiling on land holdings etc. Chapter VIII of the Land Reforms Act deals with exemption provisions. Section 104 of the Act deals with plantations, which says, that the provisions of Section 38, Section 63, other than sub-section (9), thereof, Sections 64, 79-A, 79-B and 80 shall not apply to plantations, but the power to withdraw the exemption in respect of the plantations, has not been conferred on the State Government, but evidently retained by the Legislature. Legislative policy is therefore clearly discernible from the provision of the Statute itself, that, whenever the Legislature wanted to confer the power to withdraw the exemption to the State Government it has done so, otherwise it has retained the power to itself. The Legislature’s apathy in granting exemption for lands used for cultivation of Linaloe is discernible from the language used in sub-section (2) of Section 107, which says that no person shall after the commencement of the Amendment Act acquire in any manner for the cultivation of Linaloe, land of an extent which together with the land cultivated by Linaloe, if any, already held by him exceeds ten units. Legislature, therefore, as matter of

policy, wanted to give only a conditional exemption for lands used for Linaloe cultivation and the policy was to empower the State Government to withdraw the same especially when the law is that no person can claim exemption as a matter of right. The legislative will was to make Section 107 subject to Section 110 and not the will of the delegate, hence, overriding effect has to be given to Section 110. Dr. Roerich and Mrs. Devika had got only the conditional exemption from the provisions of the Land Reforms Act for the lands used for Linaloe cultivation and, hence, they also would have lost ownership and possession of the lands once the exemption had been withdrawn and the land would have vested in the State. The land was purchased by the Company with that statutory condition from Roerichs and, hence, was bound by that condition. The court, therefore, rejected the contention that Section 110 is void due to excessive delegation of legislative powers.

The apex court in this case upheld the delegation of legislative power. The judiciary in majority of cases is reluctant to exercise judicial review power to annul the action taken by the executive. The effect of the decision rendered in this case would seem to be in the public interest. But the decision has unsettled the settled transaction in its commercial sense. The state government, in this case, granted exemption from the operation the said Act to the owner of the landed property, and later on it withdrew the same. This kind of uncertainty in the approach of the government cannot be countenanced in the interest of commerce particularly in regard to the matters of property.

From the analysis of above referred case, it becomes evident that if the executive desires to grant exemption to some land from the operation of the Land Reforms Act it can do so by issuing notification to that effect. After some period if it desires to withdraw for some reason it can very well do so by issuing another notification to that effect. We are of the view that even though in the instant case the executive exercised the power to protect the property from being misused in the public interest, what is the guarantee that the executive is going to exercise the power for the welfare of the people in the future? So, it is safe to lay down clear guidelines in the statute while delegating such power of exemption on the executive. It is commonly argued that it is not possible to articulate the policy or guidelines in detail in the context of modern complex society. But this is the area where the legal acumen of the law making organ can be seen for better governance of the country.

In Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupeshkumar Sheth and Others, the Supreme Court declared that while examining whether a particular piece of delegated legislation – whether in the form of a rule or regulation or any other type of statutory instrument - was in excess of the power of subordinate legislation conferred on the delegate, has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation etc. and the object and purpose of the Act as can be gathered from the various provisions of the enactment. It was held that the Court cannot substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purpose of the Act or sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation making body and declare a regulation to be ultra vires merely on the ground that, in the opinion of the Court, the impugned provisions will not help to serve the object and purpose of the Act. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provision of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute.

If the legislative policy is formulated by the legislature, the function of supplying details may be delegated to the executive for giving effect to the policy. Sometimes, the legislature passes an act and makes it applicable, in the first instance, to some areas and classes of persons, but empowers the government to extend the provisions thereof to different territories, persons or commodities, etc. So also there are some statutes which empower the government to exempt from their operation certain persons, commodities, etc.Some statutes authorise the government to suspend or relax the provisions contained therein. So also some statutes confer the power on the executive to adopt and apply statutes existing in other states without modifications to a new area.

In re: The Delhi Laws Act, 1912case the Supreme Court held that legislatures in India have been held to possess wide powers of delegation but subject to one limitation that a legislature cannot delegate essential legislative functions which consists in the determination of the legislative policy and of formally enacting that policy into a binding rule of conduct.

A review of the relevant cases shows that the doctrine of excessive delegation is very well established in India. The courts do support the thesis that delegation of legislative power is valid only if the delegating statute specifies the policy which the delegate is to execute by making appropriate rules. The doctrine seeks to ensure that fundamental policy decisions will be made not by bureaucracy but by the Legislature. If no standards are fixed to limit delegation of power, bureaucracy get a blank check in the area of delegation to make any law it likes and, thus, the concerned administrator, and not the legislature, becomes the primary legislator. Looked at from this angle, the doctrine of excessive delegation promotes democracy and curbs bureaucracy. To some extent, procedural safeguards laid down in the statute may make up the lack of legislative policy. As regards the practical application of the doctrine to concrete situations, it is true that the courts have been rather soft and not demanding. The courts apply the doctrine of excessive delegation in a very flexible manner as it is a serious matter to override a measure duly enacted by a Legislature. The courts do at times go too far in order to find policy of statute. This is the judicial technique of seeking hard to find the policy somewhere in the impugned statute so as to be able to uphold its validity.

Conclusion
It is a very difficult task to arrive at a concrete concept of ‘essential legislative functions’ based on which the legal validity of delegation of legislative power is decided. The judiciary in India is in favour of upholding the validity of delegation of legislative power in the context of modern scientific, economic and social developments. The provisions relating to delegation of legislative power of parent Act are drafted in such a way that the executive should get a final say as far as policy matter is concerned. It has become the practice that such important provisions of the delegating statute are passed by the legislature without detail discussion on the floor of the house. The legislature should, with a view to strengthen the institution of democracy, be cautious in delegating its power to regulatory agencies. It is high time to reform the laws relating to election so as to constitute the legislature with legislators of high integrity. The doctrines and principles developed by the judiciary should be applied in accordance with requirements of the modern age. Although there are no express provisions in the Constitution of India to permit the delegation of legislative power, the judicial trend observed in respect of delegated legislation is in accordance with the intent of founding fathers our Constitution whose main concern was the adaptability of the Constitution with changing needs of the time. There is a requirement of detail research on the extent to which the executive have exercised the delegated legislative power in accordance with the path shown by the Legislature.
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# M.P JAIN & S.N JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, 43( LexisNexis Butterworths Wadhawa Nagpur 2010) (1971). .
# Tata Iron and Steel Co.Ltd v. Workmen, AIR 1972 SC 1917.
# JAIN, supra, note 1, at 22.
# AIR 1955 SC 549.
# BERNARD SCHWARTZ, ADMINISTRATIVE LAW, 32(1976)
# National Cable Television Assn. v. U.S., 415 US 336.
# I.P.MASSEY, ADMINISTRATIVE LAW, 44 (7th ed.2008)
# Id.at 45.
# AIR 1974 SC1660.
# AIR 1980SC350.
# Mahe Beach Trading Co v. Union Territory of Pondicherry (1996) 3 SCC 741, at 764.
# JAIN, supra, note 1, at 81.
# Id.
# K.T. Plantation Pvt. Ltd. & Anr. v. State of Karnataka CIVIL APPEAL NO.6521-6538 OF 2003,
# (1984) 4 SCC 27
# (1951) 2 SCR 747.
# JAIN, supra, note 1, at 82.

The  author can be reached at: rakhishekhawat@legalserviceindia.com

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