The document discusses the limits of a legislature delegating legislative powers to subordinate authorities. It analyzes three acts related to delegating powers to extend laws from one area to another. The court found that a legislature cannot abdicate its essential legislative functions but can delegate details as long as it establishes policies and standards. Allowing the repeal of existing laws or determining the entire legislative policy for an area would be beyond the scope of permissible delegation.
Original Description:
Delegated legislation (also referred to as secondary legislation or subordinate legislation) is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation\Delegated legislation is the name given to legislation or law that is passed otherwise than in an Act of Parliament. Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on a Government Minister or another person or body. Several thousand pieces of legislation are made each year, compared with only a few dozen Acts of parliament aced legislation can be used for a wide variety of purposes, ran in from relatively narrow, technical matters , to filling in the detail of how an Act setting out broad principles will be implemented in practice.
The document discusses the limits of a legislature delegating legislative powers to subordinate authorities. It analyzes three acts related to delegating powers to extend laws from one area to another. The court found that a legislature cannot abdicate its essential legislative functions but can delegate details as long as it establishes policies and standards. Allowing the repeal of existing laws or determining the entire legislative policy for an area would be beyond the scope of permissible delegation.
The document discusses the limits of a legislature delegating legislative powers to subordinate authorities. It analyzes three acts related to delegating powers to extend laws from one area to another. The court found that a legislature cannot abdicate its essential legislative functions but can delegate details as long as it establishes policies and standards. Allowing the repeal of existing laws or determining the entire legislative policy for an area would be beyond the scope of permissible delegation.
delegate legislative power to a subordinate authority? • Limits within which this could be done? • Reference was made by the President of India under Article 143 of the Constitution asking the Court‘s opinion on three questions: • “(1) Was Section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act?” • Section 7 of the Delhi Laws Act, 1912 read: ―The Provincial Government may, by notification in the Official Gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.‖ • “(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act?” • Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 read: “Extension of Enactments to Ajmer-Merwara. - The Central Government may, by notification in the Official Gazette, extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification. • “(3) Is Section 2 of the Part “C‟ States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament?” • Section 2 of the Part “C” States (Laws) Act, 1950 read: “Power to extend enactments to certain Part C‟ States. - The Central Government may, by notification in the Official Gazette, extend to any Part C‘ State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C‘ State. • MUKHERJEA, J. - 273. The necessity of seeking the advisory opinion of this Court is stated to have arisen from the fact that because of the decision of the Federal Court in Jatindra Nath Gupta v. Province of Bihar [AIR 1949 FC 175], which held the proviso to sub-section (3) of Section 1 of the Bihar Maintenance of Public Order Act, 1947, ultra vires the Bihar Provincial Legislature, by reason of its amounting to a delegation of its legislative powers to an extraneous authority, doubts have arisen regarding the validity of the three legislative provisions mentioned above, the legality of the first and the second being actually called in question in certain judicial proceedings which are pending before some of the High Courts in India. • It will be noticed that in all the three items of legislation, mentioned above, there has been, what may be described, as conferment by the legislatures, which passed the respective enactments, to an outside authority, of some of the powers which the legislative bodies themselves could exercise; and the authority in whose favor the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws, any restrictions or modifications as it thinks fit. • The controversy centres round the point as to whether such delegation was or is within the competency of the particular legislature which passed these enactments. • The contention of the learned Attorney-General, who represents the President of India, in substance is that a legislature which is competent to legislate on a particular subject has the competence also to delegate its legislative powers in respect of that subject to any agent or external authority as it thinks proper. • The extent to which such delegation should be made is entirely a matter for consideration by the legislature itself and a court of law has no say in the matter. • There could be, according to the learned Attorney- General, only two possible limitations upon the exercise of such right of delegation by a competent legislative body. One is that the legislature cannot abdicate or surrender its powers altogether or bring into existence a new legislative power not authorised by the constitutional instrument. • The second is that if the constitutional document has provided for distribution of powers amongst different legislative bodies, one legislature cannot delegate to another, powers, which are vested in it, exclusively under the Constitution. • It is argued that, save and except these two limitations, the doctrine of inhibition of delegation by legislative authority has no place in a Constitution modelled on the English system which does not recognise the principle of separation of powers as obtains in the American system. These questions are of great constitutional importance and require careful consideration. • In America the rule of inhibition against delegation of legislative powers is based primarily upon the traditional American doctrine of ―separation of powers. • Another principle is also called in to aid in support of the rule, which is expressed in the well-known maxim of private law, ―delegatus non potest delegare, the authority for the same, being based on one of the dicta of Sir Edward Coke. • The other doctrine that is invoked in support of the anti-delegation rule is the well-accepted principle of municipal law, which prevents a person upon whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people. • The legislature is supposed to be a delegate deriving its powers from the ―people who are the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority • These doctrines, though well recognised in theory, have a restricted and limited application in actual practice. • Mr Justice Story said- ―But when we speak of a separation of the three great departments of Government and maintain that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments: and that such exercise of the whole would subvert the principles of free Constitution. • As said above, a considerable amount of flexibility was allowed in the practical application of these theories even from early times. The vast complexities of social and economic conditions of the modern age, and the ever growing amount of complicated legislation that is called for by the progressive social necessities, have made it practically impossible for the legislature to provide rules of law which are complete in all their details. Delegation of some sort, therefore, has become indispensable for making the law more effective and adaptable to the varying needs of society The question is what the limits within which such conferment are or bestowing of powers could be properly made?
• If the legislature hands over its essential
legislative powers to an outside authority, that would, in my opinion, amount to a virtual abdication of its powers and such an act would be in excess of the limits of permissible delegation. • The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much detail as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy. • So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply. • To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. • If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modifications as it thinks proper, that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down. • Thus the power of extension, which is contemplated by Section 2 of Part-C States (Laws) Act, includes the power of introducing laws which may be in actual conflict with the laws validly established and already in operation in that territory. This shows how the practice, which was adopted during the early British period as an expedient and possibly harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into a full- fledged administrative and political unit, is being resorted to in later times for no other purpose than that of vesting almost unrestricted legislative powers with regard to certain areas in the executive Government. The executive Government is given the authority to alter, repeal or amend any laws in existence at that area under the guise of bringing in laws there which are valid in other parts of India. • This, in my opinion, is an unwarrantable delegation of legislative duties and cannot be permitted. The last portion of Section 2 of Part-C States (Laws) Act is, therefore, ultra vires the powers of the Parliament as being a delegation of essential legislative powers in favour of a body not competent to exercise it and to that extent the legislation must be held to be void. This portion is however severable; and so the entire section need not be declared invalid. • (1) Section 7 of the Delhi Laws Act, 1912, is in its entirety intra vires the legislature which passed it and no portion of it is invalid. • (2) The Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions are not ultra vires the legislature which passed the Act. • (3) Section 2 of Part-C States (Laws) Act 1950, is ultra vires to the extent that it empowers the Central Government to extend to Part-C States laws which are in force in Part A States, even though such laws might conflict with or affect laws already in existence in the area to which they are extended. The power given by the last portion of the section to make provisions in any extended enactment for the repeal or amendment of any corresponding provincial law, which is for the time being applicable to that Part-C State, is, therefore, illegal and ultra vires. Lachmi Narain v. Union of India (1976) 2 SCC 953 •The power to make modification in a legislation does not include power to make modification in any essential feature . •Section 2 of the Part C States (Laws) Act, 1950 (later re-titled as Union Territories (Laws) Act, 1950), empowered the Central Government to extend by notification in the Official Gazette, to any Part C State, or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which was in force in a Part A State at the time of notification • In exercise of this power, the Central Government by notification No. SRO 615 dated April 28, 1951, extended to the then Part C State of Delhi, the Bengal Finance (Sales Tax) Act, 1941 with, inter alia, these modifications: In sub-section (2) of Section 6,- (b) for the words ―add to the Schedule, the words ―add to or omit or otherwise amend the Schedule shall be substituted • For the schedule of the Bengal Act, this notification substituted a modified schedule of goods exempted under Section 6. • The relevant items in the modified schedule were: • 8. Fruits, fresh and dried (except when sold in sealed containers); • 11. Pepper, tamarind and chillies. • 14. Turmeric; • 16. Ghee; • 17. • Cloth of such description as may from time to time be specified by notification in the Gazette costing less than Rs.3 per yard or such other sum as may be specified • Section 6 of the Bengal Act after its extension to Delhi, as modified by the said notification, read: • 6. (1) No tax shall be payable under this Act on the sale of goods specified in the first column of the Schedule subject to the conditions and exceptions if any set out in the corresponding entry in the second column thereof. • (2) The State Government after giving by Notification in the Official Gazette not less than 3 months‘ notice of its intention to do so may by like notification add to or omit from or otherwise amend the Schedule and thereupon the Schedule shall be deemed to be amended accordingly, (emphasis supplied) • SR0 3908 - In exercise of the powers conferred by Section 2 of the Union Territories (Laws) Act, 1950 (30 of 1950), the Central Government hereby makes the following amendment in the notification of the Government of India in the Ministry of Home Affairs No. S. R. 0. 615, dated the 28th April, 1951 [extending to the Union Territory of Delhi the Bengal Finance (Sales Tax) Act, 1941 subject to certain modifications] namely:- In the said notification, the modifications to the Bengal Act aforesaid in item 6 [relating to sub-section (2) of Section 6], after sub-item (a) the following sub- item shall be inserted, namely:- (aa) for the words ―not less than three months‘ notice‖, the word; ―such previous notice as it considers reasonable shall be substituted. • The scope of the words ―such modifications as it thinks fit in Section 2, thus: These are not unfamiliar words and they are often used by careful draftsmen to enable laws which are applicable to one place or object to be so adapted as to apply to another. • The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law, and in the context in which the provision as to modification occurs, it cannot bear the sinister sense attributed to it. • The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it. • The power to modify certainly involves discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. • Vivian Bose, J. also observed in a similar strain, at p. 1124: • The power to ―restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely, the power to legislate, all authorities are agreed, cannot be delegated by a legislature which is not unfettered. • Mukherjea, J. was of the view that the ―essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct cannot he delegated. Dealing with the construction of the words ―restrictions and ―modifications in the Laws Act, the learned Judge said, at pages 1004-1006: • The word ―restrictions‘… connotes limitation imposed on a particular provision so as to restrain its application or limit its scope; it does not by any means involve any change in the principle. • It seems to me that in the context and used along with the word ―restriction the word ―modification has been employed also in a cognate sense, and it does not involve any material or substantial alteration. • The dictionary meaning of the expression ―to modify is to ―tone down or to ―soften the rigidity of the thing; or ―to make partial changes without any radical alteration • It would be quite reasonable to hold that the word ―modification in Section 7 of the Delhi Laws Act (which is almost identical with the present Section 2. Laws Act) means and signifies changes of such character as are necessary to make the statute which is sought to be extended suitable to the local conditions of the province. I do not think that the executive Government is entitled to change the whole nature or policy underlying any particular Act or to take different portions from different statutes and prepare what has been described before us as ―amalgam of several laws … these things would be beyond the scope of the section itself, (emphasis supplied) • It is true that the word ―such restrictions and modifications as it thinks fit, if construed literally and in isolation, appear to give unfettered power of amending and modifying the enactment sought to be extended. • Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power. • We must, therefore, confine the scope of the words ―restrictions and modifications to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union territory. • we are of opinion that the impugned notification, dated December 7, 1957, purporting to substitute the words ―such previous notice as it considers reasonable for the words ―not less than three months‘ notice in Section 6(2) of the Bengal Act, is beyond the powers of the Central Government, conferred on it by Section 2 of the Laws Act. In consequence, the notifications, dated April 1, 1958, September 19, 1959, June 29. 1966 and July 31, 1970 in so far as they withdrew the exemptions from tax in the case of durries, pure silk, country liquor, kirana articles etc. without complying with the mandatory requirement of not less than three months‘ notice enjoined by Section 6(2) of the Bengal Act, are also invalid and ineffective. Darshan Lal Mehra v. Union of India (1992) 4 SCC 28 : AIR 1992 SC 714
•[Delegation of taxing powers
on local bodies – effacement, discrimination] • The relevant provisions of the U.P. Nagar Mahapalika Adhiniyam, 1959 reads: • Section 2.: Definitions - In this Act unless there be something repugnant in the subject or context - (77) theatre tax‘ means a tax on amusement or entertainments. • “172. Taxes to be imposed under this Act.- (1) For the purposes of this Act and subject to the provisions thereof and of Article 285 of the Constitution of India, the Mahapalika shall impose the following taxes, namely,- (a) property taxes, • (2) In addition to the taxes specified in sub-section (1) the Mahapalika may for the purposes of this Act and subject to the provisions thereof impose any of the following taxes, namely,- (a) a tax on trades, callings and professions and holding of public or private appointments; (i) a theatre tax; and (j) any other tax which the State Legislature has the power under the Constitution of India to impose in the State: • (3) The Mahapalika taxes shall be assessed and levied in accordance with the provisions of this Act and the rules and bye-laws framed thereunder. • (4) Nothing in this section shall authorize the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution of India. • The learned counsel for the petitioners has contended that Section 172(2) of the Act is unconstitutional because the legislature has abdicated its function by delegating the essential legislative powers upon the Nagar Palikas to levy all or any of the taxes enumerated in the section. • According to him the said power is unguided and uncanalised. We do not agree with the learned counsel. Section 172(2) of the Act authorises the Mahapalikas to impose the taxes mentioned therein, ―for the purposes of this Act. • The obligations and functions cast upon the Mahapalikas are laid down in various provisions of the Act. The taxes under Section 172(2) of the Act, therefore, can be levied by the Mahapalikas only for implementing those purposes and for no other purpose • The obligations and functions cast upon the Mahapalikas are laid down in various provisions of the Act. The taxes under Section 172(2) of the Act, therefore, can be levied by the Mahapalikas only for implementing those purposes and for no other purpose. The Mahapalikas have to provide special civic amenities at the places where cinemas/theatres are situated. So long as the tax has a reasonable relation to the purposes of the Act the same cannot be held to be arbitrary. • There is no force in the argument that the legislature has abdicated its function to the Mahapalikas. The tax is levied in accordance with the statutory rules framed by the State Government and the said rules are laid before each House of the State Legislature for not less than 14 days and are subject to such modifications as the legislature may make during the session they are so laid. We, therefore, reject the contention raised by the learned counsel for the petitioners. • The second contention raised by the learned counsel for the petitioners is that the classification of cinemas on the basis of annual rental value for the purpose of fixing the rate of tax is arbitrary and as such is violative of Article 14 of the Constitution of India. According to him the classification has no nexus with the objects sought to be achieved It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be imposed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less What is essential legislative function? • 1)Power of supplying details: Skeleton Legislation • CASE-Bagla V state of M.P(AIR 1954 SC 465) • Sri ram narain v state of Bombay(AIR 1959 sc 459) • Bhatnagar and company v UOI(AIR 1957 SC 478) • 2)power of inclusion and exclusion • Edwards Mills V State of ajmer • State of T.N V Hind stone • 3)power of modification of statute • Rajnarain v chairman,patna admn. Comitee(AIR 1954 SC 569) • Jalan trading co.V Mill Mazdoor Union(AIR 1967 SC 691) • 4)Abdication Test • Gwalior Mills v Asst Commr Sales Tax(AIR 1974 SC 1660) • N.K Papiah case (AIR 1975 SC 1007) • 5)Retrospective operation of delegated legislation • B.S Yadav V state of Haryana • 6)Power to impose tax • Orient weaving Mills V Union of India(AIR 1963 SC 98) • Devi Das V state of Punjab(AIR 1967 SC 1895) • Delhi Municipal Corpoartion V Birla Cotton Mills(AIR 1968 Sc 1232)