TERM any law related to the powers

                               TERM – PAPER

           

PERMISSIBLE AND IMPERMISSIBLE LIMITS OF

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                   DELEGATED  LEGISLATION.

   

        (Administrative law and regulatory mechanism)

                            (Paper no. YLM -117)

 

Submitted
to:                                            Submitted by:

Dr. Anu                                                               
     Puru Chandvanshi

          
                                                                            LL.M.
3 year (1sem.)

                                                                                 
Roll no. 50825

 

INTRODUCTION

When
the function of legislation is entrusted to organs other than the legislature
itself, the legislation made by such organs is called delegated legislation. Or
we can also say that when the legislature delegates its power to the administrative
and the administrative body makes any law related to the powers delegated to it
then the law made in such case is said to be delegated legislation. There is a
limit to the power of delegation which is a kind of restriction over the powers
to delegate. Based on this, the delegated powers can be said to have following
limits on it:

1)
Permissible limits

2)
Impermissible limits.

There
is a doctrine which deals with the limits of delegated legislation and is known
as ‘The Doctrine of Permissible Limits’. This doctrine deals with the power of
legislature which can be delegated to the administrative authorities as well as
the powers which can’t be delegated.

 

DOCTRINE OF EXCESSIVE
DELEGATION

The legislature can delegate
its legislative powers subject to its laying down the policy. the legislature
must declare the policy of the law , lay down legal principles and provide
standards for the guidance of the delegate to promulgate delegated legislation,
otherwise the law will be bad on account of “excessive delegation”.

So,
this doctrine means that the legislature can’t delegate unrestrained
uncanalised and unqualified legislative powers on an administrative body.
Delegation is valid only if it is confined to legislative policy and
guidelines.

In
Sitaram Vishabhar Dayal1, court held that whether the
power delegated by legislature to the executive has exceeded the permissible
limits in a given case depends upon the facts and circumstances. The question
doesn’t admit of any general rule.

POWER
TO EXEMPT

The legislature can exempt any person, institution
or commodity from its purview. The reason to have an exemption clause is to:

·     
Reduce work of legislature.

·     
To remove the hardship to the
persons this may materially affect the policy of the act.

            A
typical provision runs as follows:

“Notwithstanding anything contained in this
Act, the Government may, subject to such conditions as they deem fit, by
notification, exempt any land or building or class of land or buildings from
all or any of the provisions of this Act or rules of regulations made there
under.”

Section 113 of the Tamil Nadu Town and Country
Planning Act, 1971

Such a provision may be held to be invalid if
the Act contains no policy, guidelines or principles for the guidance of the
government’s discretion to exempt under this clause.

Ø  In
Parasuraman2,
the exemption clause was characterized as “uncanalised, unlimited and
arbitrary” as the Act did not lay down any principle or policy for the
guidance of the government’s discretion to exempt.

Ø   In Jalan Trading Co. v. Mill Mazdoor Union3, the Supreme Court upheld s.
36 of the Payment of Bonus Act, 1965 authorizing the Government to exempt any
establishment from the operation of the Act having regard to the financial
position and other relevant circumstances, as Parliament had given adequate
guidance and laid down the principles in the light of which the power of
exemption is to be exercised.

       POWER TO MODIFY

Sometimes, a statute confers on
the executive the power to modify or amend the parent statute. This power makes
the executive supreme even over the Legislature, but the conferment of this
power provides flexibility in the changing circumstances. For example,

·     
When some complicated scheme is
introduced, so to meet any unforeseen difficulty.

·     
To prevent the delay in the
making of necessary changes in the statue by the legislature.

 

 In Baburam Jagdish Kumar & Co.4 it was held that power by the
legislature to a local authority or to executive Government to vary or modify
an existing law would not be unconstitutional so long as such delegation does
not involve abdication of essential legislative power by the legislature i.e.
necessary guidelines are provided.

In Rajnarain v. Chairman, Patna Administration
Committee5, the relevant statutory
provision provided that the State Government could extend to a particular area
any section of the statute (The Bihar and Orissa Municipal Act, 1922) subject
to “such restrictions and modifications as the Government may think
fit”. The Supreme Court upheld the delegation of power but subject to what
it had said in the Delhi case that the Government could not make a change in
the essential policy of the Act. The Court held that “when a section of an
Act is selected for application, whether it is modified or not, it must be done
so as not to affect any change of policy, or any essential change in the Act
regarded a whole.”

In Lachmi Narain6, the Government was given
power to modify the schedule by giving a three months notice. In addition, the
Government was also given power to make such modifications as it “thinks
fit”. The Government sought to amend the Act by dropping the requirement
of giving three months notice for amending the schedule. The Supreme Court
declared this modification as ultra-vires on the ground that it changed the
“essential feature” and “legislative policy” inherent in
the Act. The Court ruled that the requirement of three months notice to amend
the schedule was a mandatory requirement, a matter of policy, because adequate
notice to those affected was necessary so that they could make due
representations against the proposed change.7

Hence,
it can be said that a delegation will be ultra vires if it contravenes the
policy as policy can’t be changed by the delegate even during modification of
statute.

 

  

 

 Removal
of Difficulties

            Statutes
usually contain a removal of difficulty clause, nick-named in Britain as the
Henry VIII clause because “that king is regarded popularly as the
impersonation of executive autocracy”.

            The
provision is used usually when the Legislature passes a statute implementing a
new socio-economic scheme. Not being sure of what difficulties may crop up in
the future implementation of the provisions of the law, the Legislature
introduces therein a “removal of difficulty” clause envisaging that
Government may make provisions to remove any difficulty that may arise in
putting the law into operation.

There are two types of “removal of
difficulty” clauses:

(a)        A narrow power under which “power
to remove difficulties” has to be exercised consistent with the provisions
of the parent Act. In such a case, the Government cannot modify any provision
of the statute itself.

Here, the resultant order made by the Executive
to remove the difficulty should not change the basic policy of the parent Act.
The removal of difficulty order cannot change any provision of the parent Act;
the order is to give effect to the Act.

(b)       The other, a broader version, may authorize
modification of the parent Act, or any other Act, in the name of removal of
difficulties. Usually, such a power is limited in point of time, say two or
three years. In principle, such a power is objectionable as it vests a vast
arsenal of power in the Executive.

             Requirements
for application of Henry VIII clause:
three requirements must be fulfilled for a removal of difficulty order to be
made by the Executive, viz.:

(1)          
that a difficulty has arisen in
giving effect to the provisions of the scheme:

(2)          
that the order to be made is
such as appears to the Government to be necessary or expedient for the purpose
of removing the difficulty; and

(3)          
That the order is not
inconsistent with any provision of the scheme.

 

Important
points related to Henry VIII clause:

·     
Here the modification of the
parent Act is not permitted and the removal of difficulty order is not final
and its validity can be tested in a court of law.

·     
If there is no difficulty, the
power to remove the difficulty cannot be exercised. The court can therefore go
into the question whether any difficulty has in fact arises.

·     
 The essential provisions of the Act cannot be
amended; only minor changes can be made in the parent Act.

·     
In Jalan trading company v. Mill
Majdoor union8,
Supreme Court was called upon to decide the legality of section 37 of payment
of bonus act, 1965. The court in this case by majority of 3:2 held that sec 37
of the said act is ultra vires on the ground of excessive delegation. The court
went on further and said that central government delegated such powers to the
executive which was not permissible.

·     
Later in Gammon India ltd v.
union of India9,
the minority view of Jalan trading case was adopted by the court which says
that functions exercised by the central govt. were not legislative functions, so
their delegation was permissible.

·     
After that in Patna University
v. Amita Tiwari10,
the court held that “removal of difficulty” clause had only limited application
and cannot be applied in every situation having some difficulty.

FUNCTIONS WHICH CAN NOT BE
DELEGATED (IMPERMISSIBLE DELEGATION)

The
following functions can’t be delegated by the legislature to the executive:

·     
Essential
legislative functions

There is no bar in the constitution of India
against the delegation of legislative power to the executive, but the essential
legislative FUNCTIONS can’t be delegated to the executive at all.

Thus laying down a legislative policy is the
function of legislature only and by entrusting this power to other body, the
legislature can’t escape from its duty and create a parallel legislature.

 

 

·     
Repeal
of law

Power to repeal a law is an essential
legislative function. So, if legislature delegates this power to executive, it
will be excessive delegation and will become ultra vires.

 

·     
Modification

Modifying the act in relation to its important
aspects is essential legislative function. So, delegation of such power to
modify the act without any limitation is not permissible.

 

·     
Exemption

Without laying down norms and policy for
guidance delegation of power of exemption to executive is not impermissible.

 

·     
removal
of difficulty

Under the guise of removing difficulty,
legislature cannot enact a Henry VIII clause and delegate a function or power
which is essential in nature or which cannot be delegated normally.

 

·     
Retrospective
operation

The power of law making in India vests in the
legislature. Parliament can pass a law retrospectively or prospectively subject
to the provisions of the constitution. But this principle cannot be applied in
the case of delegated legislation. Giving an act a retrospective operation is
an essential legislative function which cannot be delegated by the legislature
to the executive.

 

SAFEGUARDS
REGARDING DELEGATION OF POWERS TO THE EXECUTIVE:

 

·     
Legislature should lay down
guidelines for delegation or exercising the power of delegation.

·     
To make delegate to act within
the framework of the statute, legislature has to set a criteria or standard
regarding delegation of powers.

·     
Delegation should be
reasonable.

·     
Delegation should be limited
not unlimited.

·     
Delegate should not modify the
basic legislation.

·     
Delegation of powers shouldn’t
be uncanalised and uncontrollable.

·     
Legislature must set the limits
of the power delegated by declaring the policy of the law.

·     
Essential functions cannot be
delegated.

 

 

 

CONCLUSION:

Delegation
of powers is helpful but excessive delegation is harmful. Delegation have
various advantages like reduction of work load of the legislature etc. but what
has to be done by the legislature has to be done by itself only. That is why
there is a well defined arena of the delegated legislature beyond which there willn’t
be allowed any delegation of powers and that is known as impermissible limits
of delegated legislation. Delegation of powers helps in division of excessive
work load too but safeguards and proper control mechanisms should be present
and implemented to have a proper canalized and controlled delegation of powers.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                        

 

 

                                                     
     BIBLIOGRAPHY

BOOKS:

1)    C.K.Takwani,
Lectures on Administrative Law, 4th edition, 2008.

2)    M.P.
Jain and S.N. Jain, Principles of Administrative Law, 6th
edition,2010.

3)    Paras
Diwan, Administrative Law, 3rd edition, 2004.

4)    Takwani
and Thakkar , Lectures on Administrative Law.

 

1  Sitaram Vishambhar Dayal v.
State of U.P. AIR 1972 SC 1168,para7, p. 1170 L1972)2
SCR 141.

2 A.N. Parsuraman v. State of Tamil Nadu, AIR 1990 SC 40.

 

3 AIR 1967 SC 691.

4 . Baburam Jagdish Kumar & co. v. State of Punjab, (1979) 3 SCC
616 ; AIR 1979 SC 1475, PARA 30, P. 1484

5 AIR 1954 SC 569, para32, 37 and 39.

6 AIR 1976 SC 714: (1976) 2 SCC 953 ; XII ASIL 475 (1976).

7  See ‘principles of
administrative law’ by Jain and Jain. Page no. 70.

8 . AIR 1967 SC 691 : (1967) 1 SCR 15

9 (1974) 1 SCC 598: AIR 1974 SC 960.

10 (1977) 7 SCC 198: AIR 1997 SC 3456.

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