Constitutional validity or legality of delegated legislation in India
Introduction: our democracy is supported by four pillars- legislation,
executive, judiciary and press. The legislature makes laws. It is difficult for the
parliament to carry out and maintain the same as per law. Hence, the powers
are delegated to the executive as per the constitution.
Meaning and definition of delegated legislation:
Delegated legislation means a process of transferring the legislative power by
the legislature to the executive or Government or Administrative authority.
Example: Essential commodities act 1955.
In simple meaning, “when the function of the legislation is entrusted to
organs other than the legislation itself, the legislation made by such organ is
called ‘delegated legislation’.
Salmond: “delegated legislation is either supreme or subordinate”
Pre-constitutional delegated legislation:
C Jatindra Nath Gupta v. Province of Bihar
Just on the eve of independence, the federal court held in the above case that
there could be no delegation of legislative power in India beyond “conditional
legislation”. This is an extremely restrictive form of delegation.
Post- constitutional delegated legislation:
Re-Delhi laws Act case 1951
It is the first leading case decided by the Supreme Court on delegated
legislation after the Constitution came into force. A reference was made to
the Supreme Court by the president of India under Article 143 of the
constitution in the following circumstances:
The legality of part-c state’s laws act of 1950 has been challenged before the
Supreme Court. While deciding this case, Supreme Court laid down following
3 fundamental principles:
1. Legislation can transfer their legislative power to the executive or
Government but legislature must retain the ultimate control.
2. Legislature shall not transfer the essential functions of legislature to the
executive or Government. Essential functions are:
I. Principles of parent Act
II. Outline of parent act
III. Basic policy of parent act
IV. Basic objective of parent act
3. When the legislature has transferred essential function of Government in
such a case transfer of legislative power become invalid.
Effect of judgment
1. The judgment given by the Supreme Court has legalized the technique of
delegated legislation in India.
2. Judgment has imposed certain restriction on transfer of legislative power
by the parliament to the Government.
C Rajnarain Singh v. Chairman, Patna administration committee
section 3(1)(f) of the Impugned Act empowered the Patna local administration
to select any provision of the Bengal Municipality Act 1884 and applied it to
Patna with such modification and restriction as it deemed fir. This provision
was held to be unconstitutional as it amounted to picking the policy of the
act.
C Hamdard Dhawakana v. Union of India
The drugs and magical remedies (objectionable advertisement) Act 1954
provided for the ban of certain advertisement which claim to provide cure or
remedy for the incurable disease and section 3 of the Act empowered the
Government to modify the list by adding or deleting from that list names of
any diseases, the provision was held to be unconstitutional as it did not
provide for sufficient guidelines for the same.
C H.R. Bantia v. union of India
Section 5(2)(b) of the Gold control Act, 1968 which empowered the
Government to make rules to regulate the manufacturer, distributors, rules,
disposal, consumption etc of gold was held to be unconstitutional as didn’t
provide for sufficient safeguard.
The power to legislative must be delegated after laying down essential
legislative policy. Delegation of essential legislative function is impermissible.
It is essential for the legislature to declare its legislative policy which can be
gathered from the express words used in the statue or by necessary
implication, having regard to the attending circumstances.
Conclusion: The constitutionality of delegated legislation in India is rooted in
specific principles and guidelines. The Indian Constitution allows for
delegation, but it must adhere to certain constraints. Delegated legislation
must align with the parent act, ensuring it does not contravene legislative
policies.
