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ESSENTIAL LEGISLATIVE FUNCTIONS OF THE LEGISLATURE IN INDIA
- Tanishka Sinha
00717703523
4 K
ABSTRACT
This research paper explores the concept of essential legislative function with respect to
delegation of law making powers by the legislative bodies in India. The study examines how
certain functions, which are fundamental to the lawmaking process, cannot be delegated to the
executive to preserve the balance of power between the legislature, executive, and judiciary. By
analyzing constitutional provisions and relevant case law, the paper identifies and defines the
core functions that must remain with the legislature. The research further investigates the role of
the judiciary in ensuring that delegated legislation does not undermine democratic values or lead
to the abdication of legislative responsibilities.
Keywords: Delegated legislation, essential legislative functions, separation of powers,
constitutional law.
METHODOLOGY
This research paper will adopt a doctrinal research approach, focusing on qualitative analysis of
primary legal sources and judicial interpretations concerning delegated legislation and the
essential legislative functions of the legislature. The objective is to define what constitutes
essential legislative functions that cannot be delegated to the executive.
Data collection will involve an analysis of legislative texts, and relevant scholarly articles. The
research will focus on understanding how the legislature’s essential functions, such as making
fundamental policy decisions, constitutional amendments, and setting broad legal frameworks,
must remain within its control.
1] INTRODUCTION
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The Re Delhi laws1 case held certain limitations with which the Legislature must delegate their
authority. It stated that the essential legislative functions of the legislature cannot be delegated,
and the ancillary functions can be delegated. Though, the case does not define what this
“essential legislative function” constitutes.
There is no agreed formula with reference to which one can decide the permissible limits of
delegation or when the law will be ultra virus on account of “excessive delegation”, thus every
case is decided in its special setting. The distinction between essential and supplementary
functions is crucial because it enables people to assess whether the Executive is violating their
fundamental rights. As has been given in the case of Harishanker Bagla v. State of Madhya
Pradesh2, as well as, in the case of Chulani v. State Bar of Maharashtra and Goa, wherein
questions were raised against the violation of Article 19 (1) (g) of the Indian Constitution.
Though the courts' rulings contradicted the petitioners' contentions, they nevertheless advanced
the concept of essential functions and their interplay with the provisions for fundamental rights.
2] MEANING OF DELEGATED LEGISLATION
Delegated legislation is a process where the legislature, i.e, the Parliament grants the power to an
executive body, such as a government department, to make rules, regulations, or by-laws under
the authority of an existing law. This is done because the legislature may not have the time to
formulate laws in respect of every function of the State; or it may lack expertise over regional or
more local matters which are more familiar with the executive body in charge of it. For example:
The mayor of a township may be more familiar with the conditions of the local parks and would
be more qualified to make arrangements and provisions with respect to protection and
preservation of these parks. Lastly, the Legislature may also lack the ability to deal with every
minor detail of law implementation. By delegating certain law-making powers, the legislature
allows the executive to address specific issues or technical details that may arise in the future.
For example, a primary law (an Act of Parliament) might outline broad principles, while the
details of how those principles are applied or enforced may be left to the executive. This can
1
AIR 1951 SC 332
2
(1954) 1 SCC 978
3
include things like setting safety standards for industries, detailing how tax regulations are to be
implemented, and outlining administrative procedures for government programs.3
In Queen v. Burah4 the Privy Council laid down that the Indian legislature has plenary powers to
legislate on the subjects falling within its powers; that the maxim, delegatus non potest delegare5
did not apply, and, the powers were expressly limited by the Act of British Parliament which
created it. But the doctrine of conditional legislation was interpreted rather restrictively by the
Federal Court in Jatindra Nath Gupta v. Province of Bihar6. The position had changed in India
after independence and the question of the validity of the delegated legislation was referred to by
the President to the Supreme Court and was considered in the famous case of In re Delhi Laws
Act, 1912.7
3] GUIDELINES IN THE RE DELHI LAWS CASE
The In Re Delhi Laws8 case is of the most landmark judgements of the concept of delegated
legislation. It may even be considered as the first judgement that began to clearly define the
concept of delegated legislation which was rather left vague and open for interpretation in the
judgements in Queen v. Burah as well as the Jatindra Nath Case.
The code of conduct for the Legislature while delegating its rule making authority was given by
Justice Fazl Ali in the Re Delhi Laws case. It was given as follows:
i) The Legislature must normally discharge its primary legislative function itself and not through
others,
ii) The Legislature may legislate in a sphere, in which it has a sovereign power, in any way it
regards as best suited to carry out its policies in making to the particular law, and it may use any
outside agency to the extent if it finds necessary to do things that are inconvenient or impossible
for the Legislature itself to deal with,
iii) The Legislature cannot abdicate its legislative functions and must, therefore, see that the
outside agency acts in a subordinate capacity, and
3
Delegated Legislation by Anupama Yadav. (ISSN-2349-5162) JETIR.org
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5 I.A. 178 (1878)
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“one to whom power is delegated cannot himself further delegate that power”
6
AIR 1949 F.C. 175
7
AIR 1951 SC 332
8
In Re Delhi Laws Act Case: Landmark in Concept of Delegated Legislation in India by Chhavi Aggarwal
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iv) There are only two main checks in India on the power of the Legislature to delegate, namely,
its good sense and the principle that it should not go to the extreme of abdication and
self-effacement.
To summarize, the Legislature must first discharge its primary rule making function itself and not
through others, and then subsequently delegate the function of filling the lacunae or the blanks in
the policies or provisions to the executive who will act in a subordinate capacity and not override
the Legislature's policy.
However the question that arises is, how does the Legislature, that is, the Parliament decide what
is its primary function? These primary functions are what we call the Essential Legislative
Functions.
4] ESSENTIAL LEGISLATIVE FUNCTIONS
While delegated legislation is allowed, there are limitations, particularly when it comes to what
the legislature can delegate. Some aspects of lawmaking are considered "essential legislative
functions" and cannot be delegated to the executive. These are the functions that are fundamental
to the lawmaking process and should remain with the legislature. Essential legislative functions
include the determination of legislative policy and the formulation of rules of conduct, they form
the blueprint of the law, and the blanks that are left are often given to the executive to fill. It is
imperative that the essential legislative functions must not be delegated as it is the antifices of
democracy and separation of powers.
In other words, the legislature cannot delegate its function of laying down legislative policy in
respect of a measure and its formulation as a rule of conduct9. The Legislature must declare the
policy of the law and the legal principles which are to control any given cases and must provide a
standard to guide the officials or the body in power to execute the law. The essential legislative
function consists in the determination or choice of the legislative policy and of formally enacting
that policy into a binding rule of conduct.
4.1] WHY ARE SOME FUNCTIONS ESSENTIAL?
9
Harishankar Bagla v. State of M.P., (1954) 1 SCC 978 : 1954 SCC OnLine SC 17 at page 988
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The reason certain functions are considered essential is rooted in the concept of democracy and
separation of powers. Lawmaking is primarily a function of the elected legislature because it
represents the people and is accountable to them. If the executive is allowed to make significant
policy decisions (like creating laws or changing the scope of rights), it could bypass the
democratic process and undermine the balance of powers between the legislature, executive, and
judiciary.
i) PROTECTING THE TENETS OF SEPARATION OF POWERS: Separation of Powers,
as propounded by Monstesquieu has been prevalent in India for ages. It is due to the principle of
separation of powers that functions of each State entity are clearly defined and separated so as to
prevent the concentration of power into the hands of one. The Legislature makes the law, the
Executive enacts it and the Judiciary is vested with dispute resolution powers. However, the
concept of Delegated Legislation allows the Legislature, i.e., the Parliament to delegate their law
making powers to the executive bodies. This function delegation may result into arbitrary usage
of law making by the executive. The objective of Delegated Legislation has never been to
remove the Legislature as the primary source of law making10, but rather to lift some weight off
it's shoulder. All the institutions must act within their own jurisdiction and not trespass into the
jurisdiction of the other. Beyond this, each branch must support each other in the general interest
of good governance. This separation ensures the rule of law in at least two ways. It gives
constitutional and institutional legitimacy to the decisions by each branch, that is, enactments
passed by the legislature, orders and policy decisions taken by the executive and adjudication
and judgments pronounced by the judiciary in exercise of the power of judicial review on
validity of legislation and governmental action.
By segregating the powers and functions of the institutions, the Constitution ensures a structure
where the institutions function as per their institutional strengths. Secondly, and somewhat
paradoxically, it creates a system of checks and balances as the Constitution provides a degree of
latitude for interference by each branch into the functions and tasks performed by the other
branch. It checks concentration of power in a particular branch or an institution.11 Therefore, the
principle of Essential Functions ensures that the Legislature is still in charge of the fundamental
10
Throwing the Delegation Doctrine to the Winds, VERFASSUNGSBLOG
11
Ashwani Kumar v. Union of India, (2020) 13 SCC 585 : 2019 SCC OnLine SC 1144 at page 597
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policy and procedure making whilst the Executive only fills in the blanks, thereby protecting the
tenets of Separation of Powers12.
ii) PREVENTING THE BYPASS OF DEMOCRATIC PROCESS: India is one of the largest
democracies in the world and takes pride in it. The people elect their representatives and the
representatives serve the people. The Lok Sabha is such that it is made up of these elected
individuals, and the Lok Sabha is also the one with the majority vote of power to pass a bill into
an act which becomes the law. However, if this power were to be delegated from the Lok Sabha
to the Executive Body, it undermines the concept of democracy. It gives law making and law
enacting powers to the same body of individuals, which the people have not necessarily elected.
Thus, it is important that there is a system of balance and checks on even the powers that are
delegated and the essential law making remains with the Legislature itself.
The law surrounding Ordinances for example, gives the Governor under Article 213 and the
President under Article 123 the power to promulgate Ordinances which are basically temporary
laws made during emergencies when Legislature is not sitting. Though history has witnessed the
arbitrary usage of this power. The law-making function is entrusted by the Constitution to the
legislature consisting of the representatives of the people and if the executive were permitted to
continue the provisions of an ordinance in force by adopting the methodology of repromulgation
without submitting to the voice of the legislature, it would be nothing short of usurpation by the
executive of the law-making function of the legislature. The executive cannot by taking resort to
an emergency power exercisable by it only when the legislature is not in session, take over the
law-making function of the legislature. That would be clearly subverting the democratic process
which lies at the core of our constitutional scheme, for then the people would be governed not by
the laws made by the legislature as provided in the Constitution but by laws made by the
executive. The Government cannot bypass the legislature and without enacting the provisions of
the ordinance into an Act of the legislature, repromulgate the ordinance as soon as the legislature
is prorogued.13
12
Administrative Law and Doctrine of Excessive Delegation by Sanjana Nayak
13
D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378
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4.2] JUDICIAL INTERPRETATION OF ESSENTIAL LEGISLATIVE FUNCTIONS
Although the Re Delhi Laws case established that the Legislature can grant its law making power
to the executive such that the Essential Legislative Functions must still be exercised by the
Legislature, it left the door for the interpretation of “essential functions” open. Since then, case
by case, the courts have attempted to formulate the palaver surrounding “essential functions” viz
“excessive delegation”. This is because there is not a single straight jacket formula as to what
may constitute the boundaries of essential functions. Some of the decided definitions, or rather
component of “essential functions” have been decided as follows:
1. Fundamental Policy Decisions: Any law that involves a significant policy shift, such as
altering basic rights or national governance, must come from the legislature. For
example, deciding whether the country should adopt a new economic model, change its
tax system drastically, or alter civil liberties, is an essential function. However, the
Supreme Court in Harishanker Bagla v. State of Madhya Pradesh14 found out that
delegated legislation, even if seemingly broad, can be valid if it's within the scope of the
parent act and doesn't contradict other law. An executive policy cannot be called arbitrary
and against the legislative policy is the person contending such as subjected himself to
such policy. The Essential Commodities Act, which was in question in the Bagla Case
had certain provisions which from a distance seem to have undermined the Legislatives
Essential Functions, however, the Executive may be granted the powers of lawmaking for
emergency situations where it is best suited and most familiarized with the issue at hand,
in this case it was the transportation of essential textiles. If such a restriction is imposed
by the executive, it does not infringe an individual's rights under the Constitution, instead
it uplifts it by clearly defining the boundaries of reasonable restrictions.
2. Amendments to Constitution: Major constitutional changes are an essential legislative
function and cannot be delegated to the executive. In India, for example, Article 368 of
the Constitution outlines the process for constitutional amendments, and it requires the
legislature's direct involvement. The Supreme Court in the landmark judgement of
14
AIR 1954 SUPREME COURT 465
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Kesavananda Bharti v. State of Kerala15 held that the basic feature of the constitution
could not be amended as it would be the antifices of the tenets with which the
constitution makers drafted it. A Legislature functioning under a constitution is entitled to
make a law and it is not disputed that such a law can be amended in any way the
legislature likes by addition, alteration or even repeal. This power to amend is implicit in
the legislative power to make laws. It can never be suggested that when the legislature
amends its own statute either directly or indirectly it is inhibited by any important or
essential parts of that statute. It can amend the important, desirable, parts as
unceremoniously as it can any other unimportant parts of the statute.
That being so, one does not see the reasonableness of refusing this latitude to a body
which is specifically granted the unqualified power to amend the Constitution. While the
legislature's power to amend operates on each and every provision of the statute it is
difficult to see why the amending clause in a Constitution specifically authorising the
amendment of the constitution should stand inhibited by any part of the constitution. A
legislature repeals an act when it has outlived its utility. But so far as a constitution is
concerned it is an organic instrument continuously growing in utility and the question of
its repeal never arises as long as orderly change is possible. A constitution is intended to
last. Legislative acts do not have that ambition. It is the nature and character of the
constitution as a growing, organic, permanent and sovereign instrument of government
which exclude the repeal of the constitution as a whole and not the nature and character
of the amending power16.
3. Broad Legal Frameworks: Laws that set the framework for the functioning of
government or society cannot be delegated. For example, a law that defines the structure
of government or sets out the fundamental rights of citizens must be made by the
legislature itself. Legislating or law-making involves a choice to prioritise certain
political, moral and social values over the others from a wide range of choices that exist
15
AIR 1973 SC 1461
16
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : 1973 SCC OnLine SC 156 at page 715
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before the legislature. It is a balancing and integrating exercise to give
expression/meaning to diverse and alternative values and blend it in a manner that it is
representative of several viewpoints so that it garners support from other elected
representatives to pass institutional muster and acceptance. Legislation, in the form of an
enactment or laws, lays down broad and general principles. It is the source of law which
the Judges are called upon to apply.17
4. The Standard Test: This test was opined by Justice Khanna in Gwalior Rayon Silk
Manufacturing Co. v. Assistant Commissioner of Sales Tax 18and it provided that when
the legislature confers powers on an authority to make delegated legislation it must lay
down policy, principle or standard for the guideline for the authority. The Legislature
must retain in its own hands the essential legislative functions and what can be delegated
is the task of subordinate legislation necessary for implementing the purposes and objects
of the Act. Where the legislative policy is enunciated with sufficient clearness or a
standard is laid down, the Courts should not interfere. What guidance should be given
and to what extent and whether guidance has been given in a particular case at all
depends on a consideration of the provisions of the particular Act with which the Court
has to deal including its preamble. Further it appears that the nature of the body to which
delegation is made is also a factor to be taken into consideration in determining whether
there is sufficient guidance in the matter of delegation.
5. Inclusion and Exclusion: In certain circumstances, the legislature may sometimes grant
the executive with the power to alter or adjust legislative provisions to adapt to changing
circumstances or to address unforeseen issues in the implementation of laws. While this
can be seen as making the executive supreme over the legislature, it is often necessary to
ensure flexibility and responsiveness in governance. Although, it is important that there
are clearly defined justification as to the delegation of such power. In the case of
Hamdard Dawakhana v. Union of India19, the Legislature had formulated certain
17
Ashwani Kumar v. Union of India, (2020) 13 SCC 585 : 2019 SCC OnLine SC 1144 at page 606
18
[1974] 2 S.C.R. 879
19
1959 SCC OnLine SC 38
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provisions related to advertising of a “cure” for incurable disease and had included a list
of these diseases. It also vested the Central Government with the function of adding more
diseases to this list which was questioned by the Petitioner.
The Supreme Court decided that since there was no justification as to why the Central
Government must be delegated such power, it was unconstitutional. The discretion should
not be so wide that it is impossible to discern its limits. There must instead be definite
boundaries within which the powers of the administrative authority are exercisable.
Delegation should be not be so indefinite as to amount to an abdication of the legislative
function20
6. The Policy and Guideline Theory21: This theory provides that the policy laid down by
the Legislature and the subsequent guidelines laid by the Executive must have a
reasonable nexus between each other. The Supreme Court in Kerala Samsthana Chethu
Thozhilali Union v. State of Kerala22 emphasized the necessity of a clear nexus between
the rules and the objectives of the enabling Act. This nexus is the key component in
deciding whether the rules fall within the scope of the delegated legislative power. This
case laid down two principles while determining such nexus
i) Nexus with Enabling Act: If the nexus between the enabling act and the guidelines set
thereof are non existent, then the guideline is set to be ultra vires. This nexus should be
intelligible and not fictional.
ii) Limitation of Delegated Power: Delegated Legislation must not extend itself beyond
the rules set in the enabling act.
7. Imposing taxes: The power to impose taxes is a strict function of the Legiskature and
cannot be delegated. However, in the contemporary era, it is seen that this power is often
vested to the executive bodies. This delegation has been subject to judicial scrutiny, and
courts have laid down principles governing the extent and validity of such delegation.
20
Schwartz — American Administrative Law, p. 21.
21
“De Facto Law” article on Essential Legislative Functions
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(2006) 4 SCC 327
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The case of Delhi Municipal Corporation v. Birla Cotton Mills23 further explored the
boundaries of delegation. Here, the Court upheld the power delegated to a municipal
corporation to impose an electricity tax without a prescribed maximum limit. The Court
reasoned that since the corporation is a representative and responsive body, it provides an
inherent safeguard against the misuse of taxing power. Though, since this case, certain
limitations were set for the delegation of tax imposition powe, such as sufficient
guidelines to be provided, delegation limited to representative bodies such as the
municipal corporation and a rational justification for differential tax rates.
8. Power of the Purse: The Indian Parliament holds significant authority over the allocation
of government funds and expenditure. The Constitution of India mandates that no money
can be withdrawn from the Consolidated Fund of India without the approval of
Parliament. This fund is the primary repository for all government revenue, including
taxes and borrowings. Article 266 of the Constitution empowers Parliament to make laws
related to the administration of the Consolidated Fund, ensuring that all expenditures,
both current and capital, are scrutinized. The power of the purse is most clearly exercised
during the presentation of the Union Budget each year. The Union Budget is prepared by
the Finance Ministry and is laid before Parliament by the Finance Minister.
The budget contains the government's proposals for revenue generation (through taxes,
duties, etc.) and the expenditure plans for the upcoming year. While the Rajya Sabha can
discuss the budget, it is the Lok Sabha that has the final say in approving or rejecting it.
Article 112 of the Constitution states that the government must present the budget
annually to ensure transparency and maintain legislative control over financial matters.
The provisions regarding the central allocation of funds are contained in Articles 112 to
117 of the Constitution and financial matters in the State are dealt with in Articles 202 to
207 of the Constitution. Discussions regarding the consolidation of these funds take place
in the assembly, however these are not subject to alterations by the assemblies.
23
AIR 1968 SC 1232
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CONCLUSION
In conclusion, the concept of delegated legislation plays a crucial role in the functioning of the
legislative process by allowing the executive to address technical details and fill in gaps in the
law. However, it is essential to recognize that certain functions are fundamental to the legislative
process and cannot be delegated. These essential legislative functions include making significant
policy decisions, amending the Constitution, and establishing broad legal frameworks, all of
which must remain within the purview of the legislature to ensure democratic accountability and
the preservation of the separation of powers. The principles established in the Re Delhi Laws
Case provide vital guidelines for the legislature to exercise its power of delegation responsibly,
ensuring that the delegation does not lead to the abdication of its primary legislative
responsibilities.
By adhering to these principles, the legislature can maintain its role as the primary lawmaker,
while delegating administrative and technical tasks to the executive, thus ensuring a balance of
power that upholds democratic values and the rule of law. The careful delineation between
essential and non-essential legislative functions is critical to safeguarding the integrity of the
legislative process and preventing undue concentration of power in the hands of the executive.
Furthermore, the judiciary plays a pivotal role in ensuring that delegated legislation is exercised
within constitutional bounds, thereby protecting citizens' rights and maintaining the rule of law.
Effective oversight and checks on delegated powers are essential to prevent abuse and ensure
accountability. By upholding these principles, India can maintain a robust and balanced system
of governance.
