Restrain on delegation of legislative power in IndiaThe function of the State has long since ceased to be confined to preservation of public

peace,
the execution of laws and defence of frontiers. The desire to attain these objectives has resulted
in intense legislative activity.
The modern state functions on a very wide front and manages the day to day lives of the people
to a very large extent. It directs a major part of the socio-economic development in the country.
In India, since Independence, government is endeavoring to evolve a socialistic pattern of society
through democratic means which involves massive planning and control of various activities,
especially private trade and commerce.
During the laissez faire era, when Government discharged only limited functions, the Legislature
could possibly enact all legislation that was needed, but today it cannot cope with all the
legislative work by itself unaided. A method to economise legislative time is delegated
legislation.
Various factors leading to delegated legislation are

The excessive work-load on the legislature which has made it impossible for the
legislature to enact the quantity of law on diverse subjects which the public demands of

it.
Need of Specialists rather than legislators in dealing the present day socio-economic

matters of the state.

Need of administration in the occasions when it is difficult to work out beforehand and
include in the bill all details which may be needed to implement large and complex

schemes of the reform.

Lastly, the system of delegated legislation has become popular because it has the
advantages of flexibility, elasticity, expedition and opportunity for experimentation.

On the eve of Independence , the Federal court had held in Jatindra Nath v. Province of Bihar1
that there could be no delegation of legislative power in India beyond conditional legislation.

1 AIR 1949 FC 175

There are similarities and dissimilarities between the Indian Constitution on the one hand, and
the Constitution of Britain and the U.S.A., on the other hand.

The Indian parliamentary form of government is based not on separation, but on co-operation,
rather union of the two organs i.e. executive and legislative. The constitution of India did not
provide any clear guidance on the point as there is nothing in the Constitution of India either
expressly prohibiting or permitting the legislature to delegate its legislative power to the
Administration. Therefore, if the Supreme Court had to find any restrictions on the legislature in
the matter of delegation, it had to be on the basis of some general theories and principles of
Constitutional law, but not on the basis of any specific provision of the constitution. The
Supreme court of India was faced with all these important questions in the famous case of In re
Delhi laws Act2
The facts of the case are such that there were a few (Delhi being one of them) Part C states,
under the direct administration of the Central Government, without having the legislature of its
own , Delhi being one of these . Parliament had to legislate for these states. As it was very
difficult for Parliament to find the necessary time to do so in view of its other manifold
engagements, Parliament passed the Law, the part C States (Laws) Act, and 1950. The Act
authorized the Central Government to extend to any part C state, with such restrictions and
modifications as it thought fit, any enactment in force in a part A state. While doing so, the
Government could repeal or amend any corresponding law (other than a Central law) which
might be operative at the time in the Part C state concerned. Undoubtedly, it was a very sweeping
kind of delegation. The Government could to a part C State any law made by a legislature (and
not by Parliament), at any time (not only laws prevailing in 1950 but even those made), and even
modify the law before extension. And if there was already a law in force in the concerned Part C
state on the point, it could either be repeated or modified by the Government when the law was
being extended.
Unity of outlook-

2 AIR 1951 SC 332, para 90

First keeping the exigencies of the Modern Government in view, Parliament as

well as State Legislature in India need to delegate the legislative power if they
are able to face the multitudinous problems facing the country, for it is neither
practicable nor feasible to expect that each legislative body could turn out a
complete and comprehensive legislation on all subjects sought to be legislated

upon.
Second, since the legislature derive their powers from the written constitution
which creates them, they could not be allowed the same freedom as the British
Parliament in the matter of delegation, and that some limits should be set on
their capacity to delegate.
Majority decisionThe legislature should not delegate its essential legislative function which
comprises the formulation of policy and enacting it into a binding rule of
conduct. The legislature is the creature of the Constitution, the constitution
makers have placed their confidence in the collective wisdom of the
legislature.The Constitution has chosen to vest legislative power in the elected
representatives of the people.The legislature should itself lay down standards
and policy in the delegating Act leaving the delegate with the power to make
rule to execute the policy laid down by the legislature.3

The Court agreed that since the various legislatures in India derive their powers from the written
constitution which creates them, they could not enjoy the same freedom as the British parliament
in the matter of delegation of legislative power, and that some restriction should be set on their
power to delegate.

Doctrine of excessive delegation

3 Krishna Prakash Sharma v. Union of India,(2001) 5 SCC 212, para 18

The legislature must declare the policy of law, lay down legal principles and provide statndards
for the guidance of the delegate to promulgate delegated legislation otherwise the law will be bad
on account of excessive delegation
The Indian Literature cannot delegate unrestrained uncanalised and unqualified legislative power
on an administrative body.4The legislature can delegate legislative power subject to the condition
of laying down principles, standards and policy subject to which the delegate is to exercise its
delegated legislative power. In case the legislature fails to do so, the law made by its delegating,
legislative power would be invalid.5Delegation is valid only when it is confined to legislative
6

policy and guidelines. It is equally well settled that a delegatee must exercise its jurisdiction

within four corners of its delegation.7

In applying the test of excessive delegation, apart from considering the breadth of the
discretion conferred by an act to promulgate delegated legislation, the courts also examine the
procedural safeguards contained in the Act against misuse of power. A completely unlimited
blanket power where there is neither any guidance to the delegate, nor any procedural safeguards
against improper exercise of power by the delegate, can be held invalid as excessive delegation8
The question sought to be settled in the Delhi Laws Act case and subsequent cases was again reopened in Gwalior Rayon9 after a period of twenty four years since the doctrine was laid down in
Delhi Laws Act case. Mathew J., in his opinion argued that so long as Parliament retains the

4 Kishan Prakash Sharma v. Union of India,(2001) 5 SCC 212

5 State of Rajasthan v. Basant Nahata,(2005) 12 SCC 77 para 19
6 J.K Industries Ltd. v. Union of India,(2007) 13 SCC 673, para 130, 131
7 LIC of India v. Retired LIC officers Assn,(2007)13 SCC 673
8 Sitaram Vishambhar Dayal v. state of U.P., AIR 1972 SC 1168
9 Gwalior Ryon Co. v. Asst. Commr. Of Sales Tax, AIR 1974 SC 1660

power to repeal the delegating provision , it does not abdicate its legislative function and,
therefore, there should be no objection to delegation howsoever broad its extent.
From a practical view a legislature cannot exercise its power to repeal the delegating law.
Todays legislature is very much under the thumb of the Executive Legislature does not move
against the executive and no government is ever going to ask the legislature to repeal a law
because power conferred there under has been misused by the executive.
From a practical point of view, the doctrine of excessive delegation serves a useful function.
Some kind of a safety valve is necessary in the context of the functioning of modern
parliamentary system in a developing country. In spite of the inadequacy of the doctrine, it does
provide to the courts with a judicial tool to control delegations beyond a legitimate degree. In
the absence of any such restrictions the legislature may, under the pressure of the Executive, give
a blank cheque to the executive. The doctrine does obligate the Legislature to State some
policies, principles and guidelines in the statutes to control the delegate to some extent. The
courts can use the doctrine to check extreme instances of delegation. Statement policies also
enables the courts later to apply the doctrine of ultra vires to the delegated legislation in a more
meaningful manner.
In the large number of cases the courts have considered the validity of various delegating
provisions with reference to the doctrine of excessive delegation. These cases have been
classified from the point of view of the nature of the power conferred under the following broad
heads

Skeleton Legislation-

In Bagla v. State of Madya Pradesh10 sections 3(1) and 6 of the Essential Commodities
Supplies (Temporary Powers) 1946 were questioned on the ground of excessive delegation.
The Supreme Court declared both the sections valid saying that the act has sufficiently
formulated the legislative policy, maintaining or increasing supplies etc. in s.3, and gave a
clear and sufficient guidance to the Government to exercise its power under the section. The
court also stated that the ambit and the character of the Act is such that the details of that
policy can only be worked out by delegating tehm to subordinate authority within the
10 AIR 1954 SC 465

framework of that policy. The effect of s. 6, the Court explained, was certainly not to repeal
or abrogate any pre-existing law. Its object was simply to by-pass the law where it was
inconsistent with the provisions of the Act in question and the orders made under it.

Power of Inclusion and ExclusionA common legislative practice is to confer power of the Government to bring individuals,
bodies or commodities within, or to exempt them from the purview of a statute. Several
formulae are in vogue for the purpose.11
A usual legislative formula is to say that the act applies to the items mentioned in the
schedule annexed the Government has power to alter the schedule by adding thereto or
removing there from some items. Thus, the range of operation of the Act can be expanded
or reduced by making alterations in the schedule through delegated legislation. To some
extent, this provision involves delegation of power to modify the parent act, but
invariably such a provison has been upheld as valid.
The minimum wages act, 1948 has been enacted, as stated in the preamble, to provide
fixing minimum wages in certain employments. The Act applies to employment
mentioned in the schedule, but Government is given power to add any other employment
thereto and ,thus, to extend the Act to that employment

Power to amend ScheduleThe power to amend the schedule, as decided in number of cases has been upheld
because the policy to give guidance to the Government was discernible from the
Act.12It is not unconstitutional for the legislature to leave it to the executive to
determine details relating to working of taxation laws, such as selection of
persons on whom tax is to be laid, the rates at which it is to be charged, in respect
of different classes of goods and the like.

11 Ashoka Kumar Thakur v. Union of India,(2008) 6 SCC 1

12 Banarsi Das v. State of Madhya Pradesh, AIR 1958 SC 909

However, in practice difficulties arise in applying the doctrine of excessive delegation to

concrete situations by and large the judicial tendency is to uphold the power of delegated
legislation. It is only rarely that such, a power may be struck down on the ground of excessive
delegation.