Doctrine of Delegation

Definition

Before discussing in detail, let us appreciate some of the important definitions that will provide lucidity while understanding the concept of Delegated Legislation.

Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or empowering another to act as an agent or representative’. E.g. Delegation of Contractual Duties.

The Dictionary further defines ‘Doctrine of Delegation’ as:

“The Principle (based on the Separation of Powers Concept) limiting Legislature’s ability to transfer its legislative power to another Governmental Branch, especially the Executive Branch.”

‘Subordinate Legislation’ has been defined as:

“Legislation that derives from any authority other than the Sovereign Power in a state and that depends for its continued existence and validity on some superior or supreme authority.”

The Principle of Delegated Legislation has been defined as[1]:

“This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.”
Usage and Terminology

In India, ‘Rule’ and ‘Order’ are by far the most common names under which Delegated Legislation is permitted.

Section 3 (51) of the General Clauses Act defines ‘Rule’ as “Rule shall mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made under any enactment”.

Thus as suggested by this definition, a ‘regulation’ may be made as a ‘rule’ and then it partakes the character of a rule[2]. However, a certain amount of caution needs to be exercised while using these words. The expression ‘regulation’ should be used to describe the instrument by which the power to make the substantive is exercised and the expression ‘rule’ to describe the instrument by which the power to make law about procedureis exercised. But, this is merely an indicative guideline to keep things clear and unambiguous.

We also use various expressions and words to signify Delegated Legislation such as Order,Directions, Schemes, Circulars, notification,bye-laws and Instructions etc.

Limitations on Delegated Legislation

1. The Legislature cannot delegate 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[3].

Justice Cardozo famously stated that the Legislature cannot delegate ‘uncanalized and uncontrolled power’, the power delegated must not be unconfined and vagrant, but must be canalized within banks that keep it from overflowing[4].

2. Thus what is permitted is the delegation of ancillary or subordinate legislative functions or a power to fill up the details.

3. Whether any particular legislation suffers from Excessive Delegation has to be decided by courts having regard to the subject-matter, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted[5].

4. Essential Legislative Functions include the power to repeal or modify a law and cannot be delegated.

5. In the absence of an express or impliedpower to that effect, Delegated Legislation, be it a rule, bye-law or a notification, cannot haveretrospective operation[6].

6. A power to Tax or levy any fee cannot be inferred from mere generality of the powers conferred by the enabling enactment. Such power of imposition of tax or fee by Delegated Authority must be very specific and there is no scope of implied authority for imposition of such tax or fee[7].

7. One of the important conditions prescribed under Section 23 of the General Clauses Act, 1897 is that the authority having power to make the rules or bye-laws shall, before making them, must publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby.

8. Where the delegating statute itself is ultra vires to the Constitution of India, the rules made under such statute are alsounconstitutional.

9. The power to modify the parent statute is limited to bringing about consequential changes and cannot be exercised to subvert the policy laid down by the legislature. No radical changes in the enacted law is permitted[8].

10. The legislature is the master of policy and if the delegate is free to switch policy it may be usurpation of legislative power itself[9].

11. Delegated Legislation may also be declared invalid on the following grounds:

A. Violation of the Constitution of the India.

B. Violation of the Enabling Act.

C. Violation of Principles of Natural Justicewhen the Statute itself provides of such requirement.

Difference between Conditional Legislation and Delegated Legislation

Conditional Legislation – Such Legislation is usually complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether those conditions are fulfilled.

Thus Conditional Legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of Excessive Delegation.

Delegated Legislation – In such cases, some portion of the Legislative Power of the Legislature is delegated to the outside authority in that, the Legislature, though competent to perform both the Essential and Ancillary Legislative Functions, performs only the former and parts with the latter.

Thus Delegated Legislation confers some legislative power on some legislative authority and is therefore open to attack on the ground of Excessive Delegation.

However, even though Conditional Legislation is distinguishable from Delegated Legislation, still it has been held to be a subset of Delegated Legislation. The Court has observed that “it has content howsoever small and restricted of the law making power itself”[10].

Sub-Delegation

It has been consistently held by the courts that the delegate on whom the power to make subordinate legislation is conferred cannot further delegate that power. This principles finds its origin in the Latin maxim ‘delegatus non potest delegare’ meaning a delegate cannot himself delegate.

Thus when an Act prescribes a particular body to exercise a power, it must be exercised by that body and none else unless the Act byexpress words or necessary implicationpermits such delegation. When a sub-delegation is made, it does not divest the authority making sub-delegation of his statutory authority.