According to the traditional theory, the function of the executive is to administer the law enacted by the legislature, and in the ideal state the legislative powers must be exercised exclusively by the legislature who are directly responsible to the electorate. Apart from the pure administrative function executive also performs legislative and the judicial function also. In England theoretically it is only parliament, which can make laws. Even in the United States of America where the doctrine of the delegated legislation has not been accepted in principal, in practice the legislature has entrusted legislative powers to the executive. Administrative legislation met with a rapid growth after World War II and in India during 1973 to 1977.
Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, i.e., powers given by the legislature to administration to enact laws to perform administration functions. The law legislate by the administration with the powers given by the legislature is called delegated legislation. Or we can say that when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature is called subordinate legislation or delegated legislation.
The history of delegation of powers can be traced from the charter stage of 1833 when the East India Company was regaining political influence in India. The of 1833 vested the legislative powers exclusively in Governor – General – in council, which was an executive body. He was empowered to make laws and regulations for repealing, amending or altering any laws or regulations, which were in force for all persons irrespective of their nationality.
In 1935 the Government of India Ac, 1935 was passed which contained an intensive scheme of delegation. The report of the committee on ministers’ powers was submitted and approved which fully established the case for delegation of powers and delegation of legislation was regarded as inevitable in India.
Though, our constitution was based on the principal of separation of powers, a complete separation of powers was not possible hence it maintained the sanctity of the doctrine in the modern sense. The Indian Constitution does not prohibit the delegation of powers. On the other hand there are several provisions where the executive has been granted the legislative powers. For example the legislative powers of the president under the Indian Constitution are conspicuous. Under Article 123 the president has the power to promulgate the ordinances and unrestricted power to frame regulations for peace progress and good government of the union territory under Article 240. The Supreme Court of India has also upheld the delegation of legislative powers by the legislative to the legislative to the executive in the case of Raj Narayan Singh v. Chairman Patna Administration Committee.
Many factors are responsible for the rapid growth of delegated legislation in every modern democratic state. The traditional theory of ‘laissez faire’ has been given up by every state and the old ‘police state’ has now become a ‘welfare state’. Because of this radical change in the philosophy as to role to be played by the state, their functions have increase. Consequently, delegated legislation has become essential and inevitable.
Some of the reasons of the growth of the Delegation of Powers are as follows:
As a result of the expanding horizons of the state activity, the bulk of legislation is so great that it is not possible for the legislation to devote sufficient time to discuss all the matters in detail. Hence there is need for a delegation of power.
Sometimes, the subject – matter on which legislation is required is so technical in nature that the legislator, being himself a common man, cannot be expected to appreciate and legislate on the same, and the assistance of experts may be required. Hence this lead to the growth of delegation of power.
At the time of passing any legislative enactment, it is impossible to foresee all the contingencies, and some provision is required to be made for these unforeseen situations demanding exigent action. Hence there is a need for flexibility which leads to the growth of delegation of power.
The practice of delegated legislation enables the executive to experiment. The method permits rapid utilization of experience and implementation of necessary changes.
In the time of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Hence there is need for delegation of power.
The Legislature is quite competent to delegate to other authorities. To frame the rules to carry out the law made by it. In D. S. Gerewal v. The State of Punjab, K.N. Wanchoo, the then justice of the Hon’ble Supreme Court dealt in detail the powers of delegated legislation under the Article 312 of Indian Constitution. He observed:
“there is nothing in the words of Article 312 which takes away the usual power of delegation, which ordinarily resides in the legislature. The words “Parliament may by law provide” in Article 312 should not be read to mean that there is no scope for delegation in law made under Article 312….”
In the England, the parliament being supreme can delegated any amount of powers because ther is no restriction. On the other hand in America, like India, the Congress does nit possess uncontrolled and unlimited powers of delegation. In Panama Refining Co. v. Rayans, the supreme court of the United States had held that the Congress can delegate legislative powers to the Executive subject to the condition that it lays down the policies and establishes standards while leaving to the administrative authorities the making of subordinate rules within the prescribed limits.
Every delegate is subject to the authority and control of the principal and the exercise of delegated power can always be directed, corrected or cancelled by the principal. Hence parliament control over delegated legislation should be living continuity as a constitutional necessity. The fact is that due to the broad delegation of legislative powers and the generalized standard control also being broad, the judicial control has shrunk, raising the desirability and the necessity of parliamentary control.
In the USA the control of congress over delegated legislation is highly limited because neither is the technique of laying extensively used nor is there any congressional committee to scrutinize it.
In England due the concept of parliamentary sovereignty the control exercised over delegated legislation is very broad and effective.
In India the parliamentary control of delegated legislation is implicit as a normal constitutional function because the executive is responsible to the parliament.
Parliamentry control over administrative rule is admittedly weak because the legislaters are sometimes innocent of legal skills. A constant search therefore is on for an alternative mechanism which besides providing an effective vigil over administrative rule making can guarantee effective people participation for netter social communication, acceptance and effectively of the rules.
Procedural control mechanism has the potential to met the above noted requirements for allowing specific audit of rules by those for whose consumption they are made. Procedural control mechanism operates in three components:
In India the judicial review of administrative rule making is subject to the normal rules governing the review of administration action. This judicial review of administrative rule making cannot be foreclosed in any manner by the enabling act. In State of Kerala v. K.M.C. Abdullah & Co. the S.C. held that the validity of such a phrase as “shall not be called in question in any court” in the enabling act. In the same manner in G.O.C. v. Subash Chandra Yadav the S.C. held that an act providing that rules made there under on publication in official gazette would be ‘as if enacted’ in the act. Cannot take away judicial review. Grounds of invalidity may arise on the following counts:
It is now settled by majority judgments in Delhi Laws Act, 1912, Re, that there is a limit beyond which delegation may not go. The limit is that essential powers of legislation cannot be delegated. The essential legislative power consists of the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature, therefore, may not delegate its function of laying down legislative policy to an outside authority in respect of a measure and its formulation as a rule of conduct. So long as a policy is laid down and a standard or limit established by statue no unconstitutional delegation of legislative power is involved in leaving to the executive the making of subordinate rules within the prescribed limits and the determination of facts to which the legislation is to apply.
The next question arises as to what is the constitutional basis on which prohibition of delegation of law making powers rests. There is no specific provision in the constitution prohibiting the delegation. The Constitution of U.S.A embodies the doctrine of separation of powers, which prohibits the executive being given law making powers.
In Edward Mills Co. v. State of Ajmer it was explained where a legislature is given plenary powers to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise on such power. It exercise of a power is included in the grant of power.
In Devi Das Gopal Krishnan v. State of Punjab, Subba Rao, C.J. provided another justification for delegated legislation that the Constitution confers a power and imposes a duty on the legislature to make laws, but in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit varying aspects of a complex situation. The legislature must necessarily delegate the working out of details to the executive or any other agency.