Administrative

Law
PRANAV VERMA

Assistant Professor
NALSAR University of Law, Hyderabad
 MODULE -1
1. ADMINISTRATIVE LAW: UNDERSTANDING ITS THEORY AND
FUNCTIONS
 accountability of exercise of power by public officials

discretion is like a hole in a doughnut – it is relative, and only

exists by the virtue of a surrounding belt of restriction
What is (Dworkin)

Administrative who are these public officials? Collectors; police;

Law? organisational superiors in PSUs, Vice Chancellor,
Academic/Examination Committee convenors. And, wardens?

Master of Roster
• But there is a Prevention of Corruption Act for a public
servant eliciting bribe; the CrPC and IPC for illegal
detention; even law of torts for abuse of powers by public
officials through trespass etc.

• AL about individual instance of decision-making – asking

the how question – wherever discretion is provided

• Baxi – not possible to specialise in any area of law without

understanding AL. And at the same time, not really possible
to specialise in AL.

• Not confined to deliberate abusive conduct; covers even

the actions of an upright official: wherever questions of
fairness, discretion, and accountability are involved
So there can be various ways of defining AL:

• the law relating to administration. It determines the

organisation, powers and duties of administrative
authorities
• Administrative law is the law governing the Executive, to
regulate its functioning and protect the common citizenry
from any abuse of power
• To ensure government functions are exercised according to
law
• Study of the pathology of power in a developing society
• Is an instrument of middle-class Indians to combat
governmental power through Courts
“that branch of public law which deals with the organisation
and powers of administrative and quasi-administrative
agencies and prescribes principles and rules by which an
official action is reached and reviewed in relation to individual
liberty and freedom”

‘One of the main thrusts of the study of AL is on the

procedure by which the official action is reached. If the
means (procedure) are not trustworthy, the end cannot be
just’

Sometimes the procedure and AL principles are woven into a

statute itself; sometimes read into by courts through judicial
review of administrative actions; and in some jurisdictions
contained in a suis generis Administrative Procedure Act as in
the US
As Administrative Law is about the rightful exercise of power, it is inextricably linked to
the ‘rule of law’

A V Dicey’s definition of Rule of Law

- no one can be made to suffer in body or goods except for a distinct breach of law,
established in the ordinary legal manner before ordinary courts [procedural or
substantive?]
- every person subject to ordinary law of realm [no special privilege for officials]
- Unwritten constitution pervaded by rule of law as AL developed through judicial
decisions
Origins in British legal history and common law – Parliamentary
sovereignty – the doctrine of ultra vires a statute – but what happens
with broadly worded statutes?

Courts developed new parameters – arbitrariness; proportionality;

unreasonableness

AL is judge-made law.
THE CONTEXTUAL DIMENSION

Administrative Law is about the general rules governing the rightful

exercise of power – these general rules apply across different subject
terrains.

However, the terrains also influence the way in which these rules of
Administrative Law operate
Tax laws strictly construed – no exaction without specific authorisation
Consumer Online Foundation and others v Union of India and others, (2011) 5 SCC 360
“It is a settled principle of statutory interpretation that any compulsory exaction of money by
the Government such as a tax or a cess has to be strictly in accordance with law and for
these reasons a taxing statute has to be strictly construed … It has been consistently held by
this Court that whenever there is a compulsory exaction of money, there should be specific
provision for the same and there is no room for intendment and nothing is to be read or
nothing is to be implied and one should look fairly to the language used. Looking strictly at
the plain language of Section 22-A of the Airports Authority of India Act 1994 before its
amendment by the Airports Economic Regulatory Authority of India Act, 2008, the
development fees were to be levied on and collected from the embarking passengers “at the
rate as may be prescribed”. Since the rules have not prescribed the rate at which the
development fees could be levied and collected from the embarking passengers, levy and
collection of development fees from the embarking passengers was without the authority of
law.”

[impugned - letters sent by MCA to DIAL and MIAL – private organisations running the delhi
and Mumbai airports]
Criminal laws strictly construed – yet sometimes expansively interpreted

156. Police officer' s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local area
within the limits of such station would have power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not empowered
under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as
above- mentioned.
Criminal laws strictly construed – yet sometimes expansively interpreted
Sakiri Vasu v State of U.P., (2008) 2 SCC 409

expansive interpretation of Magistrate’s power under Section 156(3) CrPC

refusal to register FIR – go to Superintendent of Police u/S 154(3) CrPC – if

still no, go to the Magistrate who can under 156(3) direct registration of
FIR

if aggrieved feels ongoing investigation is improper, Magistrate u/s 156(3)

CrPC “can take suitable steps and pass such order(s) as he thinks necessary
for ensuring a proper investigation”; “can monitor the same”
“Section 156(3), though briefly worded, is very wide and it will
include all such incidental powers as are necessary for ensuring a
proper investigation”
Welfare legislations liberally construed
B. Shah v Presiding Officer, Labour Court, AIR 1978 SC 12
Provision of Maternity Benefit Act, 1961,
Sec 5 Right to payment of maternity benefit says,
Subject to the provision of this Act, every women shall be entitled to ,
and her employer shall be liable for, the payment of the maternity
benefit at the rate of the average daily wage for the period of her
actual absence, that is to say, the period immediately preceding the
day of her delivery, the actual day of her delivery and any period
immediately following that day.
Ms. X was working in an estate belonging to the appellant was allowed
leave of absence on maternity leave.
After her delivery, the appellant paid her on account of maternity benefit
an amount equivalent to what she would have earned on the basis of her
average daily wages in 72 working days falling within 12 weeks of the
maternity period excluding 12 Sundays being wageless holiday which fell
during the period of the respondents actual absence immediately
preceding and including the day of her delivery and the 6 weeks
immediately following that day.
In this case, a woman who used to 6 days a week was paid for only
6×12=72 days instead of 7×12=84 days.
High Court held that 12 weeks for which maternity benefit is provided for in Sec 5[2] of the
Act must be taken to mean 12 weeks of work and the computation of the benefit had to be
made with reference to the actual days on which the woman would have worked but for her
inability.

SC held that:
•The Act does not contain any definition of the word week.
•It has to be understood in its ordinary dictionary meaning.
•In the context Sec 5 of the Act, the term has to be taken to signify a cycle of 7 days including
Sundays.
•By using the words, namely, for the period of her actual absence immediately preceding
and including the day of her delivery and for the 6 weeks immediately following that days the
legislature intended that computation of maternity benefit is to be made for the entire period
of the woman workers’ actual absence, that is, for all the days including Sundays which may
be wageless holidays falling within that period and not only for intermittent period of 6 days
thereby excluding Sundays falling within that period.
•Hence court dismissed the Appeal.
- so these principles of statutory interpretation become necessary for administrators
during decision-making, to hedge during judicial review

Relationship between Administrative Law and Statutory Law

- rules of AL contained within statutes mostly: statutes empowering executive

administration to implement its objectives through delegation of powers

- Wide delegation – guidance and policy test; no new penalty; manifest arbitrariness

- The Epidemic Diseases Act, 1897 and COVID-19

- “as it shall deem it” is not “as they shall wish”

DIFFERENCE BETWEEN CONSTITUTIONAL LAW AND ADMINISTRATIVE
LAW

A blurred distinction?

‘While constitutional law is anti-majoritarian, administrative law is

anti-authoritarian’. (Massey)

Constitutional Law is operationalised by Administrative Law. The

former promises the RoL. The latter operationalises it.
Olga Tellis and others v Bombay Municipal Corporation and
others, (1985) 3 SCC 545

Ss 312 to 314 of the Bombay Municipal Corporation Act empowered

the Municipal Commissioner to cause to be removed
encroachments on footpaths or pavements over which the public
have a right of passage or access. The petitioners argued that the
procedure established by S. 314 to cause the removal of
encroachments was arbitrary and unreasonable for not providing
for giving a notice before the removal. It gave the Commissioner the
discretion to cause the removal with or without notice.
Held
- the discretion should be exercised reasonably, fairly, and justly. The
rationale behind dispensing with notice was contemplation of cases
of urgency which brook no delay. In all other cases, departure from
audi alteral partmen not permissible
- Action without notice not justified on mere ground that the affected
party would have no explanation even if hearing afforded by serving
notice

NB – Notwithstanding the erroneousness of the ‘there is no point’

argument, PNJ could still lead to humane decision-making; bring
forward special extenuating circumstances
Don’t look at what judges say they do, look at what they do with what
they say (paraphrasing Karl Llewellyn)

“Normally, we would have directed the Municipal Commissioner to afford

an opportunity to the petitioners to show why the encroachments
committed by them on pavements or footpaths should not be removed.
But, the opportunity which was denied by the Commissioner was granted
by us in an ample measure, both sides having made their contentions
elaborately on facts as well as on law. Having considered those
contentions, we are of the opinion that the Commissioner was justified in
directing the removal of the encroachments…”

reliance on the Commissioner’s affidavit re obstruction of highway

- the decision didn’t go that way – but is a case in point on how the
Constitution’s promise of right to life including the right to livelihood is
on the ground actualised by administrators
- swapping executive arbitrariness with judicial arbitrariness?

- 5th Jan 2022 – SC order staying the eviction of encroachers on railway

land in Haldwani
- decades since encroachment – rights accrued? lands, schools, hospitals
etc?
- SC – need for a humane approach balancing the interests of the
occupants and the railways
- 15000 children, pregnant women, senior citizens – PNJ can lead to
humane decision making
- profound dimension of admin law, as well as a routine day-day
administrative dimension

- Administrative Law seeks to control the accumulation of power in a

single authority – otherwise, no accountability. Do courts bind
themselves with the same principles they enforce on administrators?
- Judges adjudge how the decision was reached, not substitute their
judgment. Consider the following passage from the preface to Jain &
Jain’s 7th ed by Amita Dhana:

‘The Supreme Court of India has stayed counselling in all IITs whilst
admitting a petition which challenged the award of bonus marks to all
students against two incorrectly formulated questions, whether or not an
examinee attempted them. The petitioner contended that such award of
marks unfairly advantaged those who had not even attempted the
questions and hence was arbitrary. Nearly 10 lakh students appeared for
IIT (Mains) exams in 2017, out of which 2 lakh students were shortlisted,
and 1 lakh 70 thousand appeared for the IIT (Advanced) exam.’
‘If the IITs were to do what the petitioner was seeking, they would need
to go through 1.70 lakh answer scripts to firstly find out who had
attempted the question? It would next have to determine what is
considered as attempting? Will it be only candidates who completed the
answer, albeit incorrectly or would it also include those who began
answering the question but due to its incorrectness left it midway and
those who read the question but passed it over because it did not make
sense? Instead of opening this can of worms the administrators decided
to award bonus marks to all the students who had appeared in the exam
because any other course of action could have been chaotic’
‘Discretion entails choosing between alternative courses of action.
Administrators are at liberty to make any of the choices provided the
choice is reasonable, based on relevant considerations, bona fide and for
proper purpose. Since courts are not meant to substitute their choice for
that of the administrator, it is the exercise and not the choice which is
subject to judicial review.’

‘It can be contended in the above discussed case that the action of the
administrators did not breach the standards controlling the exercise of
discretion, hence the petition should have been dismissed. This has not
happened, the apex court has admitted the petition and stayed the
entire admission process till it rules in the matter’
‘After giving more than 30,000 students the jitters and extracting a
promise from the Center that such an error will not happen again, the
Supreme Court lifted the stay on IIT admissions. Presumably, the error in
the 2017 paper was not deliberate, so what end was served by the entire
process one fails to understand’
‘This manner of administrative accountability is often described as the
red-light model of administrative law. In this model, the judiciary halts
the administrative process in order to do course correction. Such a
procedure sets things right in the case before the court but whether it
systematically puts things in order remains debatable. Upendra Baxi
takes the view that the long drawn out litigation process encourages
administrators to be recalcitrant rather than compliant.’

‘In S.P. Sathe’s opinion judicial review was a powerful tool for seeking
administrative accountability provided administrative recalcitrance was
rare and exceptional. If abuse of administrative power runs rife, then
judge driven administrative law, at best provides only symptomatic relief.’
Courts to not interfere in regulatory and economic policy v interfere
when rights affected regardless (demonetization – kept pending – fait
accompli – recent decision 4:1 – economic policy restraint v unlawfully
done through a gazette notification instead of legislation).

Fairness v Efficiency

An overburdened bureaucrat – disposes off applications – decides to give

10 mins to each applicant regardless of individual merit

Is fairness efficient? Tax – retrospective law – Cairn and Vodafone

The Rule of Law: Its Nature and General Applications
[Chapter IV in ‘Introduction to the Study of the Law of the Constitution by A.V. Dicey]
England, he feels, embodies the rule of law society – as often contrasted with ‘lawless
powers’ like France at certain points in history. This is a recurring theme in the chapter.

“Supremacy of the rule of law” includes at least three distinct though related
conceptions (apparently founds in England):

1. No person is punishable or can be lawfully made to suffer in body or goods except for a
distinct breach of law established in ordinary legal manner before the ordinary courts of
the land (antithesis to systems of government based on the exercise by persons in
authority of wide, arbitrary, or discretionary powers of constraint)
‘…wherever there is discretion there is room for arbitrariness, and that in a republic no
less than under a monarchy discretionary authority on the part of the government must
mean insecurity for legal freedom on the part of its subjects.’

Link between discretion, and discrimination/disparity. Wider the discretion, higher the
scope of discrimination.
2. Not just that no person is above law, but that every person, whatever be their rank or
condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of
the ordinary tribunals.

‘The idea of legal equality, or of the universal subjection of all classes to one law
administered by the ordinary courts’

‘With us every official, from the Prime Minister down to a constable or a collector of
taxes is under the same responsibility for every act done without legal justification as
any other citizen’
3. ‘…the constitution is pervaded by the rule of law on the ground that the general
principles of the constitution (as for example the right to personal liberty, or the right of
public meeting) are with us the result of judicial decisions determining the rights of
private persons in particular cases brought before the courts; whereas under many
foreign constitutions the security (such as it is) given to the rights of individuals results,
or appears to result, from the general principles of the constitution.’

‘… some polities, and among them the English constitution, have not been created at
one stroke, and, far from being the result of legislation in the ordinary sense of that
term, are the fruit of contests carried on in the courts on behalf of the rights of
individuals. Our constitution, in short, is a judge-made constitution, and it bears on its
face all the features, good and bad, of judge-made law.’
LON FULLER – THE
INTERNAL MORALITY OF
LAW
FULLER’S PRINCIPLES OF LEGALITY

Fuller’s Project – Some Key Ideas

It may be helpful to begin discussion of Fuller’s ‘Morality of Law’ by introducing the key thesis
defended in the book:

1. Fuller describes law-making as ‘the enterprise of subjecting human conduct to the guidance of
rules’.
2. For the enterprise to be successful, legal rules must exhibit sufficient conformity with a number of
principles of legality
3. These principles of legality constitute an ‘internal morality of law’ which forges a necessary
connection between law and morality.
• Suppose an absolute monarch Rex whose word is the only law known to
his subjects
• Utterly selfish; seeks own advantage in their relations with subjects
• Forgetful – so while they from time-to-time issue commands and
threats, they forget to follow up
• As a result, they habitually punish loyalty and reward disobedience
• It is apparent that this monarch will not achieve even their own selfish
aims unless they are to accept a minimum self-restraint upon
themselves to create a meaningful connection between their words and
actions
• Suppose the monarch undergoes a change of heart, and begins to pay
attention to what they said yesterday when today they have the
occasion to distribute bounty or chop off heads (i.e., enforce
yesterday’s commands)
• But under the strain of the new responsibility the monarch becomes
hopelessly slothful in phrasing of their commands
• Orders become ambiguous; the tone inaudible. As a result, the subjects
have no idea what the monarch wants them to do
• Again, apparent that to create anything like a legal system even if to
their own advantage, the monarch needs to pull themselves together
and accept further restraints!
Fuller draws a list of principles of legality from the mistakes of Rex who repeatedly fails to enact law:

1. A failure to enact any general rules at all – Generality: ‘law must consist of general rules’
2. A failure to publicise the rules to those who are supposed to observe them – Publicity: ‘laws must
be made known to those expected to follow them’
3. The abuse of retroactive legislation – Non-retroactivity: ‘the use of retroactive legislation is to be
kept within adequate bounds’
4. A failure to make rules clear enough to be understood by those who are to observe them: Clarity:
‘laws are to be made as clear as possible’
5. The enactment of contradictory rules – Consistency: ‘A lawmaker must avoid enacting laws that
can only be obeyed by violating other laws’.
6. The enactment of rules that demand the impossible of those who are to observe them –
Possibility of obedience: ‘Laws must not demand actions that are impossible or extremely
burdensome for subjects to perform.
7. Changes of the laws are too frequent – Stability: ‘Laws must possess sufficient stability through
time’
8. A failure of correspondence between the rules and actual state action – Congruence: ‘Officials
must act and decide on the basis of and in accordance with the law.

Fuller calls these, ‘principles of legality’, but as is obvious, these could also be seen as principles of rule
of law – ingredients are common. Can principles of legality amounting to the internal morality of law
also be framed as questions amounting to the value of rule of law? i.e., Does the rule of law always
make the law morally valuable, where it is observed?
Legal positivists like HLA Hart point out that this is rather insufficient to secure substantive justice and
hence can’t be described as ‘morality’

Example: A legal rule discriminating against Black people from entering into a park, may not
necessarily violate the principles of legality – as Hart would point out. The rule is entirely unjust in
terms of substantive content but compatible with Fuller’s eight principles of legality.

Joseph Raz – the virtue of law is comparable to the sharpness of a knife – whether sharpness if an
inherently morally valuable feature depends on what you do with the knife

Internal morality of law, per Fuller, is more concerned with form than content. This carries the danger
of it granting moral value to laws unjust in content merely because they comply with the form.
Fuller and Natural Law

Does respect for the principles of legality make law morally valuable?
Positivists tend to concur with Fuller’s claim that compliance with the principles of legality, on part of a
legislator, is necessary for a legal system to exist.

Compatible with great inequity: What they deny is that respect for the principles, on the part of the
legislator, inevitably makes law morally valuable, and impose a moral duty on the subject of the law to
obey. Hart pithily expresses this view when he says that respect for Fuller’s principles of legality is
‘compatible with great inequity’.

1. Procedural natural law: Fuller emphasizes the procedural nature of his account to distinguish it from
traditional theories of natural law that claim that substantively unjust laws lack legal validity. Fuller
does not wish to associate himself with that tradition. His claim, to repeat, is not that there can’t be
substantively unjust laws, but rather that laws will have moral value, even if unjust in content, as long
as they confirm to principles of legality.
2. Law as a purposeful enterprise:
Law is a purposeful enterprise. The purpose in question is to subject human conduct to the governance
of rules. Fuller often talks as though the mere fact that law is purposeful suffices to show that law is
always morally valuable.

Positivist reply: Positivists may concede that legislation pursues the purpose to subject human conduct
to the governance of rules and that there are natural principles of legislative craftsmanship, while
denying that this shows that the principles of legality make law morally valuable. The enterprise of
subjecting human conduct to the governance of rules could be undertaken to achieve good ends or
bad.

q What’s actually behind Fuller’s connect between the principles of legality and internal morality of
law is the claim that the purpose of law is to subject human conduct to the governance of rules –
i.e., the purpose here is to protect the autonomy of subjects of the law by providing them with a
dependable base-line of legal rules to govern their own conduct.
BUT
The positivist counter would be that the principles of legality could be understood as mere claims
about efficiency in the pursuit of legislative goals. In that case, there aren’t any necessary moral
implications.
3. Tyranny and Legality: Fuller argues that respect for the principles of legality will tend to inhibit the
pursuit of iniquitous ends on part of political rulers

q Congruence: Most importantly, a tyrannical regime may find it very inconvenient to have to abide
by the principle of congruence, which demands that state’s officials enforce the rules and not
anything else. Evil or wicked regimes have no incentive to commit to respecting the principles of
legality. The choice to employ legal governance, as well as the choice to realise the principles of
legality to their fullest extent, must be grounded in moral concern.
Would you agree?

q Clarity, Consistency, and Publicity: Relatedly, Fuller suggests that the pursuit of iniquitous ends is
often incompatible with respect for principles of clarity, consistency, and publicity. Unjust Nazi
laws, Fuller argues, violated these principles of legality.

Is the second argument weaker than the one on congruence? It is not at all difficult to find examples of
iniquitous/oppressive laws which are clear, consistent, and well publicized. For instance: racial
segregation laws that Hart refers to adhered to these principles and yet were shockingly unjust.
4. Reciprocity and Autonomy

A legal system that realises the principles of legality to a high degree will make the exercise of public
power predictable, and thus enable people to form reliable expectations, and to coordinate their own
behaviour in line with their own ends. Respect for the principles of legality thus amounts to the
respect for the autonomy of subjects of the law, understood as their capacity to live self-directed
lives.

q The bond of reciprocity:

In making law, a law-maker commits to treating their subjects in accordance with pre-announced rules,
thus enabling the latter to plan and to coordinate. Subjects of the law, as a result, are said to have a
moral obligation to obey law that conforms to the principles of legality in virtue of the fact that such
law enhances and protects their autonomy.

Hence, if it must be the case that a law be obligatory, it must conform to the principles of legality.

(an implicit social contract / Fuller’s account of obligation)

“… Every departure from the principles of law’s inner morality
is an affront to man’s dignity as a responsible agent. To judge
his actions by unpublished or retroactive laws, or to order him
to do an act that is impossible, is to convey to him your
indifference to his powers of self-determination”
- Fuller
A major assumption running through Fuller’s account is that legislators choose law over brute force, because
they are interested in granting autonomy.

There are strong reasons to doubt this assumption.

Choosing law can provide a more sophisticated means of oppression than brute force itself.
POSITIVIST
RESPONSES TO
FULLER
H.L.A. Hart
HART’S RESPONSE TO FULLER (Hart’s review of The Morality of Law)

Principles of efficiency or morality?

Hart conceded to Fuller that there are indeed principles of successful law-making. He denied that these amount
to a morality of law.

“But the crucial objection to the designation of these principles of good legal craftsmanship as morality, in spite
of the qualification “inner”, is that it perpetrates a confusion between two notions that it is vital to hold apart:
the notion of purposive activity and morality. Poisoning is no doubt a purposive activity, and reflections on its
purpose may show that it has internal principles. (“Avoid poisons however lethal if they cause the victim to
vomit”, or “Avoid poisons however lethal if their shape, colour, or size is likely to attract notice”). But to call
these principles of the poisoner’s art “the morality of poisoning” would simply blur the distinction between the
notion of efficiency for a purpose and those final judgments about activities and purposes with which morality
in its various forms is concerned.” (350)
So, you can subject human conduct to the governance of rules for a wide variety of purposes – morally good or
not.

What therefore matters is the purpose(s) the legislator pursues in making people behave according to rules they
enact; and unless we know more about such purposes, we can’t say that the principles of legality or their
observance serves a morally approvable purpose – they might as well serve even a morally obnoxious purpose.

Then, the principles of legality don’t amount to inner morality of law but are mere principles of efficiency which
determine whether legislative activity is successful in making people do what the legislature wants them to do.

Subsequent positivists have pursued this broad argumentative path laid down by Hart.
• Consider the recent takeover of Afghanistan by the Taliban. Let us assume in
due course they establish a sophisticated legal system.

• They make laws designating the Hazaras and other ethnic/religious

minorities; women; members of the LGBTQ+ etc as second-class citizens / deny
them rights

• These laws are consistent, clear, well-publicized, general, stable, non-

retroactive, and there exists a technical possibility of obedience.

• Would that suffice to make the Taliban legal system ‘moral’?

• Even from Fuller’s standpoint, the Taliban legal system would confer a
“dependable base-line” to its subjects; make it clear to them what is expected
of them; enable them to tailor their affairs accordingly.

• Nonetheless, this instance may prove that efficiently administered wicked

laws won’t necessary be salvaged by mere grant of certainty to the subjects on
what is expected of them. It doesn’t necessarily make the legal system morally
valuable..
JOSEPH RAZ
RAZ ON ‘THE RULE OF LAW AND ITS VIRTUE’

Context: recall our discussion of Fuller’s principles of legality being regarded as the concept of the rule of law.

TWO MISTAKES ABOUT THE RULE OF LAW

1. The confusion of the ideal of the rule of law with a complete social philosophy (i.e., a no holds-barred theory
of complete social or substantive justice)

Raz thinks that obliterating this distinction is unhelpful. We are interested here primarily in understanding the
specific excellence of a law conforming with the rules of law or principles of legality. For that, it is important to
define ‘rule of law’ narrowly enough to make it distinguishable from the ideal of substantive justice of the law’s
content

2. An overvaluation of the rule of law; the belief in the rule of law’s overriding importance
Instrumentality of the value of the rule of law

Respect for the rule of law enables efficient guidance of human behaviour. This efficiency-enhancing effect of the rule of
law, which it is to be regarded as the specific excellence of law qua law, is a purely instrumental virtue. Conformity to the
rule of law is the virtue of law in the same way that the sharpness is the virtue of a knife. Whether a knife or the law can
be said to be morally valuable depends on the purposes for which they are used.

Does every legal system have some moral value?

There is a value – and even moral value – in respect for the rule of law on the part of political authorities and officials. We
can also say that law that conforms to the rule of law is law that is apt to serve its purposes well, whatever they may be.

However, it would be a mistake to think that every legal system must possess at least some moral value. There could be
shockingly oppressive trannies which slavishly adhere to the rule of law. Such systems would refrain from violating human
dignity in certain specific ways, but it would be wrong to conclude that it is morally better for them to exist rather than not
to exist (in light of the substantive aims of the law-maker).
Against the overriding importance of the rule of law:

[Recall that Raz is not only concerned with defining the rule of law in a suitably narrow way, but also to explain why it
shouldn’t be attached with an overriding importance in the manner Fuller does]

Where a legal system exists and where it pursues morally justifiable purposes, it is morally desirable, other things being
equal, for the system to exhibit a higher rather than a lower degree of compliance with the rule of law

q Conflict between the rule of law and substantive goals of policy: However, the attempt to realise the rule of law to the
highest possible degree may come into conflict with the realisation of policies grounded in important moral values. In
that event, there may be good reasons for government to act in ways that fail to maximize compliance with the rule of
law.
Red light and green light theories
[Chapter I in ‘Law and Administration’ by Carol Harlow and Richard Rawlings]

‘At the heart of Dicey’s exposition of the rule of law lay the concept of formal or
procedural equality: the submission of ruler and subject alike to the jurisdiction of the
same courts of law. Dicey set his face against the French system, where separate and
autonomous tribunals attached to the administration handle cases involving the state.’
This contrast was in particular with the French idea of ‘droit administratif’ which for
Dicey had no English equivalent. He described it as resting on two leading ideas:

1. The government, and every servant of the government, possesses as representative

of the nation, a whole body of special rights, privileges, or prerogatives as against
private citizens, and that the extent of these rights, privileges, or prerogatives is to
be determined on principles different from the considerations which fix the legal
rights and duties of one citizen towards another

An individual, in their dealing with the state, according to this notion, doesn’t stand the
same footing as that on which they stand in their dealings with their neighbour.
2. The necessity of maintaining the so-called ‘separation of powers’ (separation des
pouvoirs), i.e. preventing the government, the legislature, and the courts from
encroaching on the other’s sphere. BUT the expression doesn’t carry the same
connotation as it does in English law, viz., judicial independence. It rather means
that just as judges ordinarily be independent of the executive, the government and
its officials – whilst acting officially – must be independent of and to a great extent
free from the jurisdiction of the ordinary courts

This could easily be an antithesis to judicial review of administrative action.

NB – all still Dicey’s reading of the French system. Towards the end of his career he
admitted the capacity of the separate French system of administrative courts to control
the abuse of power.
Nonetheless the principle of concern to Dicey is that relationships of citizens with
public officials are not – and should not be – radically different from relations
between citizens and private bodies.

NB – Dicey did not extend this principle to the crown and held that it was immune
from civil proceedings in ordinary courts. This referred to the ‘prerogative powers’
of the executive – usually derived from common law and not statutes.
Undercutting his rule of law argument? Dicey perhaps intended the powers on
emergency and national security to be exempted, but in a modern state
prerogative powers are much more widely used. Courts themselves did not
recognise such exception later.
But is the government equal to your neighbour?

‘The fallacy of Dicey’s assumptions lies in his contention that the rule of law demands
full equality in every respect between government and subjects or citizens. But it is
inherent in the very notion of government that it cannot in all respects be equal to the
governed, because it has to govern. In a multitude of ways, government must be left
to interfere, without legal sanctions, in the lives and interests of citizens, where
private persons could not be allowed to do so … The refusal of the courts to make
planning or policy decisions of government the subject of legal action, also shows that
the inequality of government and governed in certain respects is an indispensable fact
of organized political life…’

Public servants performing duties given special protection; offence to disobey their
directions
‘An alternative response, and one preferred by the authors, is to search for values
common to public and private law, capable, if properly handled, of bridging the divide
… Common law principles and concepts are sufficiently flexible to provide
appropriate answers to problems involving the state and public authorities. We do
not deny that the state has special functions. The legislative process is undoubtedly
special, a fact acknowledged in the distinction drawn between lawmaking and
administrative rule-making … That the common law is holistic does not mean that
identical rules should be applied automatically across the board. Specific situations
call for thoughtful specific answers and not mechanical application of the totemic
word “public”.’

Power imbalance also with corporations

Law has to respond to context

Red-light theory: the primary function of administrative law should be to
control excesses of state power and, more precisely, subject it to the rule of
the law courts.

Closely linked to this is the view that law courts are the primary weapon for
protection of the citizen and control of the executive.

Thus, ‘ouster clauses’ (precluding judicial review partially or completely)

raises significant constitutional questions. Also, retrospective legislative
overruling of court decisions. Court have resisted by striking down or
reading down such provisions.
- total ouster clauses
- tribunalisation to oust constitutional courts’ jurisdiction
- retrospective legislation to nullify the effect of a court decision (Vodafone
and Cairn)
- legislations confining the benefits of a successful case to only its litigants
(social security legislations)

Judicial response:
- restrictive interpretation of ouster clauses (common law principle – can’t
deprive jurisdiction save by express words)
- constitutionalizing tribunals
Article 31-B, Constitution of India, 1950: validation of certain Acts and
Regulations

“Without prejudice to the generality of the provisions contained in Article

31A, none of the Acts and Regulations specified in the Ninth Schedule nor
any of the provisions thereof shall be deemed to be void, or ever to have
become void, on the ground that such Act, Regulation or provision is
inconsistent with, or takes away or abridges any of the rights conferred by,
any provisions of this Part, and notwithstanding any judgment, decree or
order of any court or tribunal to the contrary, each of the said Acts and
Regulations shall, subject to the power of any competent Legislature to
repeal or amend it, continue in force.”
I.R. Coelho (Dead) By LRs v State of Tamil Nadu, (2007) 2 SCC 1

Facts: The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari)
Act, 1969 (the Janman Act) vested forest lands in the Janmam estates in the
State of Tamnil Nadu, and was subsequently struck down by the SC in
Balmadies Plantations Ltd. v State of Tamil Nadu, (1972) 2 SCC 133. The
Constitution (Thirty-Fourth Amendment) Act inserted the Janmam Act in its
entirety into the Ninth Schedule.

Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck
down by the Calcutta HC, and an SLP against its judgment was dismissed by
the SC. The Constitution (Sixty-Sixth Amendment) Act inserted the West
Bengal Land Holdings Revenue Act, 1979 in its entirety in the Ninth Schedule
The Constitution Bench of five judges in I.R. Coelho (1999) heard the
challenges to these Amendments. It observed that amendments made to
the Constitution on or after 24-4-1973 by which the Ninth Schedule was
amended from time to time by inclusion of various Acts, were open to
challenge on the ground that they violated the basic structure of the
Constitution.

“The fundamental question is whether on and after 24-4-1973 when the

basic structure doctrine was propounded, it is permissible for Parliament
under Article 31-B to immunize legislations from fundamental rights by
inserting them into the Ninth Schedule and, if so, what is its effect on the
power of judicial review of the Court.”
The objective behind Article 31-A and 31-B:

assist the process of legislative (in particular, agrarian) reforms and confer
on such legislative measures, immunity from possible attacks on the
ground of violating the fundamental rights.

not a part of the original Constitution; inserted by the Constitution (First

Amendment) Act, 1951. The same amended, inter alia, added a new Ninth
Schedule containing 13 items, all relating to land reform laws.

The constitutional validity of the First Amendment Act was upheld in

Sankari Prasad Singh Deo v Union of India, AIR 1951 SC 458
Then, the constitutional validity of certain Acts added to the Ninth
Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was
challenged, but the challenge was unsuccessful in Sajjan Singh v State of
Rajasthan, AIR 1965 SC 845.

The Court noted that the Ninth Schedule came to include 284 Acts.

“The jurisdiction conferred on this Court by Article 32 is an important and

integral part of the basic structure of the Constitution of India and no Act of
Parliament can abrogate it or take it away except by way of impermissible
erosion of fundamental principles of the constitutional scheme…”
- constitutionalism
- parliamentary v constitutional sovereignty
- separation of powers is basic structure per KB

“To begin with, we find it difficult to accept the broad proposition urged by
the petitioners that laws that have been found by the courts to be violative
of Part III of the Constitution cannot be protected by placing the same in the
Ninth Schedule by use of device of Article 31-B …”
The Court culls out the following principle from the opinions of Sikri, C.J.;
and Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. in Kesavananda
Bharati

“The principle that constitutional amendments which violate the basic

structure doctrine are liable to be struck down will also apply to
amendments made to add laws in the Ninth Schedule.”

“The rights and freedoms created by the fundamental rights chapter can be
taken away or destroyed by amendment of the relevant article, but subject
to the limitation of the doctrine of basic structure. True, it may reduce the
efficacy of Article 31-B but that is inevitable in view of the progress the laws
have made post-Kesavananda Bharati case…”
“Indeed, if Article 31-B only provided restricted immunity and it seems that
original intent was only to protect a limited number of laws, it would have
been only exception to Part III and the basis for the initial upholding of the
provision. However, the unchecked and rampant exercise of this power, the
number having gone from 13 to 284, shows that it is no longer a mere
exception. The absence of guidelines for exercise of such power means the
absence of constitutional control which results in destruction of
constitutional supremacy and creation of parliamentary hegemony and
absence of full power of judicial review to determine the constitutional
validity of such exercise”
“The result of the aforesaid discussion is that since the basic structure of the
Constitution includes some of the fundamental rights, any law granted Ninth
Schedule protection deserves to be tested against these principles. If the law
infringes the essence of any of the fundamental rights or any other aspect of
the basic structure then it will be struck down. The extent of abrogation and
limit of abridgment shall have to be examined in each case.”

“Every amendment to the Constitution whether it be in the form of amendment

of any article or amendment by insertion of an Act in the Ninth Schedule, has to
be tested by reference to the doctrine of basic structure … As stated, laws
included in the Ninth Schedule do not become part of the Constitution, they
derive their validity on account of the exercise undertaken by the Parliament to
include them in the Ninth Schedule. That exercise has to be tested every time it
is undertaken.”
(1) If a law abrogates or abridges FRs whether by amendment of any article of
part III or by an insertion in the 9th schedule, it will have to be invalidated
by the exercise of judicial review
(2) the validity of each new constitutional amendment to be judged on its own
merits
(3) “all amendments made after 24-4-1973 by which the Ninth Schedule is
amended by inclusion of various laws therein shall have to be tested on the
touchstone of the basic or essential features of the Constitution as reflected
in Article 21 read with Article 14, Article 19, and the principles underlying
them. To put it differently even though an Act is put in the Ninth Schedule
by a constitutional amendment, its provisions would be open to attack on
the ground that they destroy or damage the basic structure if the
fundamental right or rights taken away or abrogated pertains or pertain to
the basic structure.”
Tribunalisation…

Madras Bar Association v Union of India and another, (2014) 10 SCC 1

• National Tax Tribunal Act, 2005 – transfer of appellate jurisdiction under tax laws vested in High Courts
to the NTT, to adjudication on (substantial) questions of law
• Held, ultra vires and unconstitutional in its entirety

Facts: NTT was styled as a quasi-judicial Appellate Tribunal. It was vested with the power of adjudicating
appeals on substantial questions of law arising from orders passed by the Appellate Tribunals constituted
under the Income Tax Act, 1961, the Customs Act, 1962 and the Central Excise Act, 1944. Hithertobefore,
the instant jurisdiction was vested with the High Courts. Simultaneously, the constitutionality of the
Constitution (Forty Second Amendment) Act, 1976 was also assailed asserting that the same violates the
basic structure of the Constitution by impinging on the power of judicial review vested in the High Courts. In
the event of the Supreme Court not acceding to the aforementioned prayers, a challenge in the alternative
was raised to various provisions of the NTT Act, which had led to the constitution of the National Tax
Tribunal
Article 323B provides: “Tribunals for other matters. (1) The appropriate Legislature may, by law, provide
for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any
of the matters specified in clause (2) with respect to which such Legislature has power to make laws. (2)
The matters referred to in clause (1) are the following, namely:- (a) levy, assessment, collection and
enforcement of any tax; …”

SUMMARY: the jurisdiction to adjudicate upon questions of law/SQOL of the High Court under any
ordinary law may be transferred to an appropriately constituted tribunal. Hence, the validity of the
Constitution (42nd Amendment) Act, 1976 insofar as it inserted Article 323-B was reaffirmed.

However, the NTT Act is unconstitutional, as in transferring abovesaid power from a traditional court to an
alternative court/tribunal, the salient characteristics of the court were sought to be replaced were not
incorporated in the court/tribunal created. Provisions in the NTT Act, 2005 – Sections 5, 6, 7, 8 and 13
dealing with the constitution of Benches of NTT, qualifications, appointment, terms of office of
Chairperson and Members, are thus unconstitutional. In absence of the said provisions, the remaining
provisions of the NTT Act are rendered otiose – Hence entire NTT Act, 2005 set aside
Per Khehar, J. (for Lodha, CJ, himself, Chelameswar and Sikri, JJ.)

• Under recognised constitutional conventions relating to the Westminster model of Government, judicial
power vested in superior courts may be transferred to coordinate courts/tribunals. But whenever there is
such transfer, all conventions/customs/practices of the court sought to be replaced have to be incorporated
in the court/tribunal created. The newly created court/tribunal would have to be established in
consonance with the salient characteristics and standards of the court which is sought to be substituted.
This would mean that the newly constituted court/tribunal will be deemed to be invalidly constituted, till
its members are appointed in the same manner, and till its members are entitled to the same conditions of
service as were available to the judges of the court sought to be substituted.

• Section 5(2): Section 5(2) mandates that the NTT shall ordinarily have its sittings in the NCT of Delhi.
Inconvenience to parties who could earlier approach State High Courts. “The instant aspect of the matter
was considered by this Court with reference to the Administrative Tribunals Act, 1985 in S.P. Sampath
Kumar case and L. Chandra Kumar case, wherein it was held that permanent Benches needed to be
established at the seat of every jurisdictional High Court. And if that was not possible, at least a Circuit
Bench required to be established at every place where an aggrieved party could avail of his remedy. The
position on the above issue is no different in the present controversy. For the above reason, Section 5(2) of
the NTT Act is in clear breach of the law declared by this Court”
• Sub-sections 5(2), (3), (4) and (5): role of the Central Government in determining the
sitting of the Benches of the NTT. CG authorised to notify the area in relation to
which each Bench would exercise jurisdiction to determine the constitution of the
Benches, and finally to exercise the power of transfer of Members of one Bench to
another Bench – Central Government would be a stakeholder in each and every
appeal/case filed before NTT – therefore not appropriate for it to have any role. “In
the jurisdictional High Courts such power is exercised exclusively by the Chief Justice
in the best interest of the administration of justice. Allowing the Central Government
to participate in the aforestated administrative functioning of NTT, in our view,
would impinge upon the independence and fairness of the Members of NTT. For the
NTT Act to be valid, the Chairperson and Members of NTT should be possessed of
the same independence and security as the Judges of the Jurisdictional High Courts
(which NTT is mandated to substitute).
• Section 6: a person would be qualified for appointment as a Member, if he is or has been a
Member of the Income Tax Appellate Tribunal or of the Customs, Excise and Service Tax
Appellate Tribunal for at least 5 years. Also provided for appointment of technical members
and accountant members.

• “This Court has declared the position in this behalf in L. Chandra Kumar case and in Union of
India v Madras Bar Assn case, that Technical Members could be appointed to the tribunals,
where technical expertise is essential for disposal of matters, and not otherwise. It has also
been held that where the adjudicatory process transferred to a tribunal does not involve any
specialised skill, knowledge or expertise, a provision for appointment of non-Judicial Members
… would constitute a case of delusion and encroachment upon the ‘independence of judiciary’,
and the ‘rule of law’. It is difficult to appreciate how Accountant Members and Technical
Members would handle complicated questions of law relating to tax matters, and also
questions of law on a variety of subjects (unconnected to tax), in exercise of the jurisdiction
vested with the NTT. That in our view would be a tall order … There seems to be no doubt,
whatsoever, that the Members of a court/tribunal to which adjudicatory functions are
transferred must be manned by Judges/members whose stature and qualifications are
commensurate to the court from which the adjudicatory process has been transferred.” Plus
direct appeal to Supreme Court so “there would hardly be any occasion to raise a challenge on
a tax matter … before a jurisdictional High Court. …Therefore, all the more, the composition of
NTT would have to be on the same parameters as Judges of the High Courts.”
• Section 7: “Herein the acknowledged position is that NTT has been constituted as a
replacement of High Courts. NTT is, therefore, in the real sense a tribunal substituting the High
Courts. The manner of appointment of Chairperson/Members to NTT will have to be by the
same procedure (or by a similar procedure) to that which is prevalent for appointment of the
judges of High Courts … the above proposition was declared by this Court in Union of India v
Madras Bar Assn., wherein it was held that the stature of the members of the tribunal had to be
akin to that of the Judges of High Courts. So also the conditions of service of its
Chairperson/Members, and the manner of their appointment and removal, including transfers.
Including, the tenure of their appointments. Section 7 cannot even otherwise be considered to
be constitutionally valid since it includes in the process of selection and appointment of the
Chairperson and Members of NTT, Secretaries of Departments of the Central Government. In this
behalf, it would also be pertinent to mention that the interests of the Central Government would
be represented on one side in every litigation before NTT. It is not possible to accept a party to a
litigation can participate in the selection process whereby the Chairperson and Members of the
adjudicatory body are selected.”

• Section 8: a Chairperson/Member is appointed to NTT, in the first instance, for a duration of 5

years. Eligible for reappointment for a further period of 5 years. “… a provision for
reappointment would itself have the effect of undermining the independence of the
Chairperson/Members of NTT.”
Per Rohinton Fali Nariman, J. (concurring in the result)
- SQOL to only be decided by High Courts and the Supreme Court under our constitutional scheme

HEADED TOWARDS – GST APPLEATE TRIBUNAL (GSTAT)

- GoM proposed that the GSTAT be set up with a principal bench in New Delhi and similar benches at various
other locations
- Each of these regional Benches will consist of a judicial officer equivalent of a High Court judge and a senior
tax officer from either the Centre or the state as a technical member.
- The appellate body will be headed by a judge from the Supreme Court or the chief justice of a High Court. In
case there is only one or an odd number of Benches in a state, the technical member/members from the
Centre and the state concerned will be on a rotational basis to achieve equity
- A four member search and selectin committee headed by either the CJI or his representative judge from the
SC, will be tasked with the appointment of members to the Benches. It will also consist of the president of
the GSTAT, a union government secretary and a state chief secretary. The chairperson will have the casting
vote.
- “It is very pertinent to note here that the process of the first appeal under the GST regime happens through
individual officers but the second appeal against the orders of the first appellate authorities under Central
as well as State tax administration lies with the GSTAT. Therefore, this is the first forum at which the
adjudication process converges under all GST laws and all tax administrations.”
- Appeal lies to HC under Section 117 of the GST Act if the case involves a SQOL
Madras Bar Association v Union of India and others, (2015) 8 SCC 583

The writ petition challenged the constitution of NCLT and NCLAT under the Companies Act 2013. This was a
sequel to the 2010 SC decision in Union of India v R. Gandhi, President, Madras Bar Association, (2010) 11 SCC
1 which had upheld the constitutional validity of NCLT and NCLAT as established by the Companies (Second
Amendment) Act, 2002, amending the Companies Act, 1956. The 2010 judgment laid down the following
principles:

1. Only Judges and advocates can be considered for appointment as judicial members of the Tribunal. Only
High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person
who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons
who have held a Group A or equivalent post under the Central or State Government with experience in the
Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for
appointment as judicial members as provided in Sub-Section 2(c) and (d) of Section 10FD. The expertise in
Company Law service or Indian Legal service will at best enable them to be considered for appointment as
technical members.
2. As the NCLT takes over the functions of High Court, the members should as nearly as possible have
the same position and status as High Court Judges. This can be achieved, not by giving the salary and
perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in
rank, experience or competence to High Court Judges are appointed as members. Therefore, only
officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for
appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of Sub-
section (2) and Clauses (a) and (b) of Sub-section (3) of Section 10FD which provide for persons with
15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post
in Central or State Government, being qualified for appointment as Members of Tribunal is invalid.

3. A "technical member" presupposes an experience in the field to which the Tribunal relates. A
member of the Indian Company Law Service who has worked with Accounts Branch or officers in
other departments who might have incidentally dealt with some aspect of company law cannot be
considered as "experts" qualified to be appointed as technical members. Therefore Clauses (a) and (b)
of Sub-section (3) are not valid.“(v) The first part of Clause (f) of Sub-section (3) providing that any
person having special knowledge or professional experience of 15 years in science, technology,
economics, banking, industry could be considered to be persons with expertise in company law, for
being appointed as Technical Members in Company Law Tribunal, is invalid.
4. Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen
years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however
be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being
considered for appointment as technical members.

5. Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two
Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in
the Ministry of Law and Justice as members mentioned in Section 10FX, the Selection Committee should broadly be on the
following lines:
(a) Chief Justice of India or his nominee-Chairperson (with a casting vote);
(b) A senior Judge of the Supreme Court or Chief Justice of High Court-Member;
(c) Secretary in the Ministry of Finance and Company Affairs-Member; and
(d) Secretary in the Ministry of Law and Justice-Member.

6. The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment
for one more term.

7. The second proviso to Section 10FE enabling the President and members to retain lien with their parent
cadre/ministry/department while holding office as President or Members will not be conducive for the independence of
members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The
lien cannot therefore exceed a period of one year.
The petitioners in the present case alleged that the Companies Act 2013 incorporated almost the same
provisions as its predecessor legislation notwithstanding the ruling in the 2010 case. It also claimed non-
observance of the NNT judgment.

Issue No. 1: Constitutional Validity of NCLT and NCLAT

“the NTT was a matter where power of judicial review hitherto exercised by the High Court in deciding the
pure substantial question of law was sought to be taken away to be vested in NTT which was held to be
impermissible. In the instant case, there is no such situation. On the contrary, NCLT is the first forum in the
hierarchy of quasi-judicial fora set up in the Act, 2013. The NCLT, thus, would not only deal with question of
law in a given case coming before it but would be called upon to thrash out the factual disputes/aspects as
well. In this scenario, NCLAT which is the first appellate forum provided under the Act, 2013 to examine the
validity of the orders passed by NCLT, will have to revisit the factual as well as legal issues. Therefore, situation
is not akin to NTT.”

“it is not unknown rather a common feature/practice to provide one appellate forum wherever an enactment
is a complete Code for providing judicial remedies. Providing one right to appeal before an appellate forum is a
well accepted norm which is perceived as a healthy tradition.”
Issue No. 2: Qualifications of President and Members of NCLT, and Chairperson and
Members of NCLAT

recall the 2010 judgment which said that the technical members of NCLT/NCLAT should be
selected from amongst only those officers who hold rank of Secretaries or Additional
Secretaries and have technical expertise.

The Court noted that the 2013 Act violated this holding as Joint Secretaries with certain
experience were eligible under it to be made technical members. The 2010 case had
specifical ruled against this point. Thus the relevant section was struck down in this case
too.
Issue No. 3: Constitution of Selection Committee for selecting the members of NCLT and NCLAT

Now see the selection committee under challenge in the 2010 case:
(a) CJI or his nominee (Chairperson)
(b) Secretary in the Ministry of Finance and Company Affairs (Member)
(c) Secretary in the Ministry of Labour (Member)
(d) Secretary in the Ministry of Law and Justice (Member)
(e) Secretary in the Ministry of Finance and Company Affairs – Department of Company Affairs (Member)
Jt Sec in Ministry or Dept of CG dealing with the Act to be convenor

The 2010 case found fault with it – instead of 5 members of the Selection Committee there should be four comprising of
(a) CJI or his nominee (Chairperson) (Casting Vote)
(b) A senior Judge of the SC or CJ of HC (Member)
(c) Secretary in the Ministry of Finance and Company Affairs (Member)
(d) Secretary in the Ministry of Law and Justice (Member)

The 2013 Act provides for

(a) CJI or his nominee (Chairperson)
(b) a senior Judge of the SC or a CJ of HC (Member)
(c) Secretary in the Ministry of Corporate Affairs (Member)
(d) Secretary in the Ministry of Law and Justice (Member)
(e) Secretary in the Department of Financial Services in the Ministry of Finance (Member)
Deviations:

(i) Though the Chief Justice of India or his nominee is to act as Chairperson, he is not given
the power of a casting vote. It is because of the reason that instead of four-member
Committee, the composition of Committee in the impugned provision is that of five
members.
(ii) Secretary in Ministry of Finance and Company Affairs to be read as “or”
(iii)Now … effect of this composition is to make it a five members Selection Committee
which was not found to be valid in 2010 judgment. Reason is simple, out of these five
Members, three are from the administrative branch/bureaucracy as against two from
judiciary which will result in predominant say of the members belonging to the
administrative branch, is situation that was specifically diverted from.
The green light theory: ‘…while red light theory looks to the model of the balanced
constitution and favours strong judicial control of executive power, green light theory
sees in administrative law a vehicle for political progress and welcomes the
‘administrative state’.

‘Green light theorists looked to the truly representative legislature to advance the causes
of workers, women, minorities and the disadvantaged. For them, the role of law was to
facilitate the provision of statutorily established programmes of public services…’

a main concern for any green light theorist was to minimize the influence of courts:
courts, with their legalistic values, were seen as obstacles to progress, and their control,
unrepresentative and undemocratic.
‘Red light theory prioritises courts; green light theory prefers democratic or political
forms of accountability’

Legislative committees to oversee the governments – parliamentary select committee,

standing committees etc.

So, in a greenlight model:

- Grievance redressed within the system

- Addressing grievance is part of the process
- Third parties like courts don’t have to intervene for the right thing to be done
 • APA governs the process by which federal
agencies in the US develop and issue
regulations. It includes requirements for
publishing notices of proposed and final
rulemaking in the Federal Register, and provides
opportunities for the public to comment on
The US Administrative notices of proposed rulemaking. The APA
requires most rules to have a 30-day delayed
Procedure Act, 5 USC effective date.

§551 et seq. (1946) • In addition to setting forth rulemaking

procedures, the APA addresses other agency
actions such as issuance of policy statements,
licenses, and permits. It also provides standards
for judicial review if a person has been adversely
affected or aggrieved by an agency action.
(See link)
The US • 1938 – Roosevelt - vetoed the Walter-Logan Bill which
would have placed administrative agencies directly under
Administrative courts.

Procedure Act, 5 • 1941 Attorney General’s report – groundwork for APA. The
USC §551 et seq. purposes of the Act:

(1946) (1) ensure that agencies keep the public informed of their
organisation, procedures, and rules
(2) provide for public participation in the rule-making
process
(3) prescribe uniform standards for conduct of formal rule
making and adjudicatory process etc
The US Administrative Procedure Act, 5 USC
§551 et seq. (1946)
• Full Act - https://www.law.cornell.edu/uscode/text/5/559
Lochner v. New York, 198 U.S. 45 (1905) (overruled)
• Held as invalid on the ground of the freedom of contract, a New York State statute
that prescribed maximum working hours for bakers.
• The underlying case began in 1899 when Joseph Lochner, a German immigrant
who owned a bakery in Utica, New York, was charged with violating New York's
Bakeshop Act of 1895.
• The Bakeshop Act criminalized the employment of bakers for more than 10 hours
a day or 60 hours per week by New York bakeries.
• Lochner was convicted and ultimately appealed to the U.S. Supreme Court. A 5-J
majority of the Supreme Court held that the law violated the Due Process
Clause/14th Amendment, constituting an "unreasonable, unnecessary and
arbitrary interference with the right and liberty of the individual to contract“

This is a pre-New Deal judgment. The trend of courts interfering in economic policy
measures of the government had also continued after the New Deal.
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) / the ‘Sick Chicken Case’

• The impugned regulations were promulgated under the National Industry Recovery Act (NIRA) of
1933. They fixed wages and prices in the chicken-sale industry including for unhealthy chickens. The
Schechter brothers were charged with the sale of unfit and uninspected chickens.

• NIRA allowed private trading associations and groups to propose codes for regulation in the
industry, and if the President were to approve them, then they would have had the force of law. While
approving a code under NIRA, the President could impose his own conditions, adding to or taking
from what was proposed, as “in his discretion” he thought necessary “to effectuate the policy”

• The final regulations/code approved by the President were unanimously struck own by SCOTUS on
the ground of excessive delegation or delegation of legislative power to the executive.

• The decision set the stage for a stand-off between President Roosevelt and SCOTUS, as NIRA was
one of the New Deal laws.
This followed the President’s threat to pack the Court and the latter arguably relenting on subsequent New
Deal related decisions (see West Coast Hotel Co. v Parrish and Justice Roberts decision to uphold the
minimum wage law, coming very soon after his decision to strike down a similar minimum wage law in
Morehead). NB - one of the narratives.

The work of French jurist Leon Duguit provided another model of the green light theory
• a socialist and expansive state in which a strong government was a necessity
• and whose activities stretched far beyond the traditional areas of law, order, justice and defence.
• to secure public services: ‘any activity that has to be governmentally regulated and controlled because it is
indispensable to the realisation and development of social solidarity … so long as it is of such a nature that
it cannot be assured save by governmental intervention.’
• laying the basis of a welfare state in which the planning and the control of private economic activities
were legitimate state activities. He predicted that transport, mining and electricity would ultimately
become public services.
• BUT did not believe in absolute power and was strongly anti-authoritarian. Inherent limitation to act in
‘public interest’.

“In Duguit’s ideal state, the function of public law was first and foremost to provide the framework inside
which the efficient operation of the public services could at all times be assured. Administrative law limited
state action in two distinct ways: (a) through the notion that the state can act only in the public interest and
for the public good; and (b) through the principle that the state must observe the law…”
Jennings – administrative law is all the law relating to administration:

• “It determines the organisation, powers and duties of administrative authorities. Where the
political organisation of the country is highly developed, as it is in England, administrative law is a
large and important branch of the law. It includes the law relating to public utility companies, and
the legal powers which these authorities exercise. Or, looking at the subject from the functional
instead of the institutional point of view, we may say that it includes the law relating to public health,
the law of highways, the law of social insurance, the law of education, and the law relating to the
provision of gas, water, and the electricity. These are examples only, for a list of the powers of the
administrative authorities would occupy a long catalogue.”

Compare with Wade’s definition earlier in the article:

• “… administrative law may be said to be the body of general principles which govern the exercise of
powers and duties by public authorities. This is only one part of the mass of law to which public
authorities are subject. All the detailed law about their composition and structure, though clearly
related to administrative law, lies beyond the proper scope of the subject … What has to be isolated is
the law about the manner in which public authorities must exercise their functions, distinguishing
function from structure and looking always for general principles.”
• Robson – “a profession which was incapable of reforming the legal system ought not to be let
loose on the administrative process”! How do judges fare as administrators themselves?

• And that the Donoughmore Committee set up in 1931 to consider how powers exercised by
ministers through DL or (quasi) judicial functions could be controlled to safeguard
constitutional principles, was “paralysed by the dead hand of Dicey”. This is because is refused
to consider “a boldly-conceived system of administrative courts headed by an administrative
appeals tribunal”, over “the patchwork quilt of ill-constructed tribunals which at present
exists…”

• “The disappointing feature is its failure to make any significant contribution to the structure
of the system. Instead of endeavouring to increase the sense of responsibility and
independence of the administrative tribunals, the Report relies on a hostile judiciary to provide
‘checks and balances’. It recommends, accordingly, that the supervisory jurisdiction of the High
Court to compel ministers and administrative tribunals to keep within their powers and to hear
and determine according to law be maintained; and further, that anyone aggrieved by a
decision should have an absolute right of appeal to the High Court on any question of law.”
The dangers of completely going green-light: bureaucratic red-tapism

The Crichel Down example:

• Criched Down had been acquired as a bombing range by the Air Ministry before World War II. Subsequently,
when no longer required for these purposes, it was transferred to the Ministry of Agriculture. A dispute arose
when the Ministry, wishing to dispose of the land, tried to let it to a new tenant instead of allowing its original
owners to buy it back. Fierce objections from the latter forced a public inquiry, which established the
responsibility of civil servants both for the policy and for its execution. Controversially, the minister, Sir Thomas
Dugdale, accepted responsibility and resigned.

• Griffith: “the fundamental defect revealed was not a failure in the constitutional relations of those involved not
the policy decisions not even the length of the struggle [the complainant] had to wage. It was in the method and
therefore in the mental processes of the officials.”

• BUT, staying with the GL tradition: “Griffith concluded that the civil service must be left to put its own house in
order”.

• policy v implementation; ministerial responsibility

• See – Yes, Minister S02 Ep ‘A Question of Loyalty’ – bureaucratic red-tapism to stall accountability (7:26
onwards)
https://www.dailymotion.com/video/x5v4ri5
Allocation of functions

• Ganz: “Rules are themselves value judgments whereas discretion is the power to make a value judgment. In practice
the difference may not be very great … where the rule contains words such as ‘reasonable’ which amount to a
delegation of discretion to make value judgments …

• When the problem arises of who should make decisions in a particular field the controversy should centre not on
whether these involve the application of rules or discretion but on who should make the necessary value judgments.
Looking at this from the point of view of the legislature there is a wide area of choice.”

• “Parliament may make the value judgments itself and embody them in reasonably precise rules in statutes. This
narrows the area of discretion to be exercised by whoever is charged with the application of the rules but does not
eliminate it. The choice has to be made between the courts, administrative tribunals and sometimes even ministers or
independent statutory bodies as interpreters of the rules laid down.”

• “In many areas it is not, however, possible or even desirable to formulate value judgments in the shape of detailed
rules. Especially in a new field it may be necessary to make value judgments on a case-to-case basis. This can be done by
laying down rules embodying very broad standards or conferring wide discretionary powers. These powers may also be
given to courts, administrative tribunals, Ministers or a special created statutory body”
• “In common with other green light theorists, Ganz believed that judges should not interfere with the allocation of
functions as established by statute; by so doing, they substituted the court for the rightful decision-maker chosen by
Parliament.”

• “Where courts cross jurisdictional boundaries to impose ‘judicial’ procedures on the administration, they are in fact
substituting their own values for those of the administration. The argument advanced is two-pronged: on the one hand,
administrative procedures are more accessible and ‘user-friendly’ than courts; equally important, the new institutions are
less imbued with old ideas and ideologies.”

Swaraj Abhiyan v Union of India and others, (2016) 7 SCC 498

• 2015-16 drought in India affected one-third of the country’s population. Several directions issued by the SC bench
headed by Justice Madan Lokur.
• UoI directed to constitute a National Disaster Mitigation Fund as mandated under the DMA
• asked to update the Drought Management Manual and relevant factors for consideration while revising the manual
were stated
• Secretary, Department of Agriculture and Farmers’ Welfare, Government of India directed to urgently hold meeting
with Chief Secretaries of Bihar, Gujarat and Haryana to review the drought situation there
• relevant principles for declaring a drought explained
• absence of ration card to not prejudice – appropriate identification or proof of residence accepted by SG a substitute
• State Government to present realistic Labour Budget – Central Government to provide adequate and timely release
of funds for 150 days of work guaranteed per year in draught-affected areas. Release of funds directed.
• BUT does the strict separation of powers argument apply to developing states like India marred by
dysfunctional systems?

• “Public interest litigation is necessary in certain circumstances, particularly in a welfare State such as
ours.
…
There are occasions when people in disadvantaged situations are unable to have access to courts and
therefore, to have access to justice need someone to speak up for them. How else can a welfare State
function effectively if it cannot even hear let alone listen to what the underprivileged and needy people have
to say?”

• “Public interest litigation presents the Court with an issue based problem concerning society and solutions
need to be found to that problem within the legal framework. Sometimes, the cause of the problem is
bureaucratic inactivity and apathy; sometimes executive excesses that cause the problem and sometimes
the problem is caused by the ostrich-like reaction of the executive. These situations represent the broad
contours of public interest issues brought to the notice of the Court, and these are the kind of issues for
which we need to search for solutions. The successful pursuit of appropriate solutions and consequent
conclusions and directions are often pejoratively and unfortunately described as judicial activism”
• The Court cites Justice Michael Kirby, a former Judge of the Australian HC:

• “The acute needs of the developing countries of the Commonwealth have sometimes
produced an approach to constitutional interpretation that is unashamedly described as
‘activist’, including by Judges themselves. Thus, in India, at least in most legal circles, the
phrase ‘judicial activism’ is not viewed as one of condemnation. So urgent and numerous
are the needs of that society that anything else would be regarded by many – including
many Judges and lawyers – as an abdication of the final court’s essential constitutional
role.

• One instance may be cited from Indian experience: the expansion of the traditional
notion of standing to sue in public interest litigation. The Indian Supreme Court has
upheld the right of prisoners, the poor and other vulnerable groups to enlist its
constitutional jurisdiction by simply sending a letter to the Court. This might not seem
appropriate in a developed country. Yet it appears perfectly adapted to the nation to
which the Indian Constitution speaks.”
• He went on to say:

• “It is beyond contest that some of the accretions of power to the judiciary over the last century
have come about as a result of failures and inadequacies in law-making by the other branches and
departments of the Government. Constitutional power hates a vacuum. Where it exists, in the
form of silence, confusion or uncertainty about the law, it is natural that those affected, despairing
of solutions from the other law-making organs of the Government, will sometimes approach the
judicial branch for what is in effect a new rule. They will seek a new law that responds quickly to
their particular problem. When this happens, Judges, if they have jurisdiction in the case, are not
normally at liberty to just send the parties away. How do they decide whether the fulfilment of
their judicial role permits, or requires, the giving of an answer or obliges them to decline and force
the parties to return to the politicians or bureaucrats? To what extent must Judges defer to
Parliament, when they know full well, from many like cases, that nothing will be done because the
problem is too particular, divisive, technical or boring to merit political attention and
parliamentary time? …”

• See the discussion continuous mandamus in Justice Muralidhar’s interview with Sandy Fredman
on the Oxford Human Rights Hub. 26:10 – 28:40; and 30:48 onwards.
https://soundcloud.com/oxhrh/rightsup-comparative-human-rights-sandy-fredman-justice-
muralidhar
• On Ganz’s criticisms of courts intervening, incidentally, echoes are found in the
bedrock of the red-light model: the minimalist nature of the Wednesbury
principles!

• In the Wenesbury case, the Sunday Entertainments Act 1932 empowered local
authorities to license cinemas for Sunday performances subject to such
conditions ‘as the authority thinks fit to impose’. The defendants banned entry
to children under 15 and the cinema sought a declaration that the condition was
ultra vires

• Lord Greene MR: ‘if a decision on a competent matter is so unreasonable that

no reasonable authority could ever have come to it, then the courts can
interfere.’

• “We might compare the operation of the classical Wednesbury test to a plot of
land, whose boundaries it is the court’s duty to patrol. Provided the decision-
maker does not put a toe outside the plot he is protected from judicial review”
Towards consensus?

• Despite the divide, there is a consensus on the administrative law values: transparency,
participation, fairness, and accountability etc.

• Need both?

• RTI Act again – yes within the administration but judicial review also needed after a point within the
RTI regime

• amber light
The Rule of
Law in Whigs
and Hunter:
Origin of the
Black Act
Book description: “…The subject is the Black Act, a law of unprecedented
savagery passed by Parliament in 1723 to deal with 'wicked and evil-
disposed men going armed in disguise'. These men were pillaging the royal
forest of deer, conducting a running battle against the forest officers with
blackmail, threats and violence. These 'Blacks', however, were men of some
substance; their protest (for such it was) took issue with the equally
wholsesale plunder of the forest by Whig nominees to the forest offices. And
Robert Walpole, still consolidating his power, took an active part in the
prosecution of the 'Blacks'. The episode is laden with political and social
implications, affording us glimpses of considerable popular discontent,
political chicanery, judicial inequity, corrupt ambition and crime.”
“We reach, then, not a simple conclusion (law = class power) but
a complex and contradictory one. On the one hand, it is true that
the law did mediate existent class relations to the advantage of
the rulers; not only is this so, but as the century advanced the law
became a superb instrument by which these rulers were able to
impose new definitions of property to their even greater
advantage, as in the extinction by law of indefinite agrarian use-
rights and in the furtherance of enclosure. On the other hand, the
law mediated these class relations through legal forms, which
imposed, again and again, inhibitions upon the actions of the
rulers.”
“There were even occasions … when the Government itself
retired from the courts defeated. Such occasions served,
paradoxically, to consolidate power, to enhance its legitimacy,
and to inhibit revolutionary movements. But, to turn the paradox
around, these same occasions served to bring power even
further within constitutional controls.”
“… I have shown in this study a political oligarchy inventing callous and
oppressive laws to serve its own interests. I have shown judges who, no
less than bishops, were subject to political influence, whose sense of justice
was humbug, and whose interpretation of the laws served only to enlarge
their inherent class bias. Indeed, I think that this study has shown that for
many of England’s governing elite the rule of law were a nuisance, to be
manipulated and bent in what ways they could; and that the allegiance of
such men as Walpole … to the rhetoric of law was largely humbug. But I do
not conclude from this that the rule of law itself was humbug…”

value in the inhibitions upon power imposed by law

“… the notion of the regulation and reconciliation of conflicts through the rule of law
– and the elaboration of rules and procedures which, on occasion, made some
approximate approach towards the ideal – seems to me a cultural achievement of
unique significance.”

“I do not lay any claim as to the abstract, extra-historical impartiality of these rules.
In a context of gross class inequalities, the equity of the law must always be in
some part sham. Transplanted as it was to even more inequitable contexts, this law
could become an instrument of imperialism … But even here the rules and the
rhetoric have imposed some inhibitions upon the imperial power. If the rhetoric was
a mask, it was a mask which Gandhi and Nehru were to borrow, at the head of a
million masked supporters.”
“I am not starry eyed about this at all. This has not been a star-
struck book. I am insisting only upon the obvious point, which
some Marxists have overlooked, that there is a difference
between arbitrary power and the rule of law. We ought to expose
the shams and inequities which may be concealed beneath this
law. But the rule of law itself, the imposing of effective inhibitions
upon power and the defence of the citizen from power’s all-
intrusive claims, seems to me to be an unqualified human
good. To deny or belittle this good is … a desperate error of
intellectual abstraction.”
“It is only when we follow through the intricacies of its operation
that we can show what it was worth, how it was bent, how its
proclaimed values were falsified in practice. When we note
Walpole harrying Joh Huntridge, Judge Page handing down his
death sentences, Lord Hardwicke wrenching the clauses of his
Act from their context and Lord Mansfield compounding his
manipulations, we feel contempt for men whose practice belied
the resounding rhetoric of the age. But we feel contempt not
because we are contemptuous of the notion of a just and
equitable law but because this notion has been betrayed by its
own professors…”
“… On the gallows men would actually complain, in their ‘last
dying words’, if they felt that in some particular the due forms of
law had not been undergone. (We remember Vulcan Gates
complaining that since he has illiterate he could not read his own
notice of proclamation; and performing his allotted role at Tyburn
only when he had seen the Sherrif’s dangling chain.) For the
trouble about law and justice, as ideal aspirations, is that they
must pretend to absolute validity or they do not exist at all.”
The Myth and Reality of the Indian
Administrative Law

(Introduction to Prof. I.P. Massey’s commentary

by Prof. Upendra Baxi)
2. Understanding Indian Administrative Law

“The IAL is not really a subject or discipline of law like, say, torts,
property, company law, and at times invades administration of the
criminal justice system. The IAL principles emerge across the board,
and are to be found, discovered, and even invented, wherever
allegations of arbitrary exercise of power are raised and judicially
dealt with. One may reasonably specialise in studies or in practice in a
specific area of law, but it strains belief that one may ever specialise
in the IAL as such. To understand the stuff of which the IAL is made,
one has to understand relevant domains of “substantive” law to
which courts apply the more general principles of legality and fair
play.”
“By common convention, the IAL is regarded as ‘public law’ because it
deals with the relationships between citizen and State; the IAL
becomes an integral part of the constitutional law of India, reflecting it
but also shaping it. The IAL, in a special sense, constitutes the common
law of the Constitution, as for the most part it is uncodified, though it
is clear that regulatory agencies and tribunals always concurrently
making their own ‘law’ have always existed and are now growing
space.”
“The IAL, like administrative law formations in all liberal societies or
constitutional democracies, celebrates the values of a ‘rule of law’
based State and society. The social meaning of the rule of law is just
this: The rule of law means that power must always be rendered
accountable here-and-now, governance be made progressively just,
and the State incrementally ethical. Understood this way, the IAL
offers as a series of success and failure stories about the attainment
of the rule of law based governance and society.” (emphasis original)
3. Towards A Sociological and Historical Understanding of the IAL
Formations

“The conventional understanding of the IAL is necessary but not

sufficient. Alternate frameworks situating the IAL development in
time and space do not deny its importance but rather enrich it.
Administrative law primarily unfolds via judicial decisions; hence,
these furnish the raw material for understanding how justices and
courts arrive at the sense of the limits of executive/administrative
decision-making power and of their own judicial review powers. This
sense of limits cannot be grasped via case citations and mechanical
narration of the principles enunciated by the judicial decisions as
offering timeless truths.”
“Such doctrinal narratives via the practices of citation history overlook that
it is not the same as contextual history; these ignore the obvious fact that
courts as institutions (always exposed to changes in their structure,
composition, role, and function over time) and justices as individual
decision-makers (who bring to their task differing world views on State,
Constitution, law, rights and development) act in changing historical
contexts. Nor does citational history bring to public, and even to scholarly
consciousness, the differential identities of litigants and lawyers who
problematise State action and conduct in terms of arbitrariness or denial of
fair play … The conventional IAL narratives (in this case and in that case type
narratives) do a singular injustice to changing adjudicatory policies and
styles, gestated within changeful political, social, and economic (in short,
the historical) circumstance. Nor do they help us to understand how the
client-bound lawyerly activities incrementally contribute to the cultural
production called the IAL.”
“old”, “new”, and “contemporary” IAL formations by reference to diverse historical
moments:

1. The long Nehruvian moment of Indian constitutional planned economic

development, and further the transition from a planned economy to the
emergence of the State finance capitalist formation (with Indira Nehru
Gandhi’s bank nationalisation and abolition of the privy purses plus the
rhetoric of Garibi Hatao).
2. The authoritarian State formation of the internal Emergency of 1975-1976.
3. The cathartic judicial populism in the wake of lifting of the Emergency
maturing, subsequently, in new forms of judicial action, crystallised by social
action litigation (SAL) (1977 – 1989)
4. Beginning with he 90s, the era of new economic reforms, which now
almost wholly immunises macro-economic policies and associated
“developmental” measures from any strict constitutional and human
rights oriented scrutiny.

“The ‘old’ IAL developed during the first two historical moments, the new
forms of IAL developed distinctly in the third, and the contemporary IAL
formations has began to occur in the fourth moment.”

“…it may still not be gainsaid that overall political and economic contexts
present both opportunities and constraints for judicial law-saying.”
Sociological context:

1. there is an assumption (now partly displaced by SAL) that the IAL petitioners or
plaintiffs recourse to courts for the protection of their specific and, at time, strategic
interests. Sociologically, then the question matters: Which sort of parties or litigants
recourse to courts? And what classes of aggrieved persons infrequently or even
rarely go to courts? Which classes or groups stand most to benefit from this
activation of judicial review power and process, and to which actual short and long
term results?

In the early decades, the IAL has developed largely by four types of litigants: companies
and other business entities, trade unions or individual work persons, those subjected to
preventive detention and varieties of dragnet security laws, and Article 311 citizens (civil
servants).
2. how we may understand differential responses by justices and courts to
cases and controversies brought before them? How or why is the case the
many maxims/precepts/”standards”/”rules” of natural justice constantly
vary in everyday application? Does this have to do with changing social
profiles of justices and lawyers who “develop” the IAL forms and
techniques?

3. how may we understand dependence of lawyers and justices on foreign

precedents, especially from the old Commonwealth law and the US
jurisprudence… Why is it that the remarkable originality of the judicially
developed IAL has little resonance elsewhere? Why or how does it come to
pass that the Indian justices and courts are so remarkably hospitable to
Euro-American justices and so little informed by the administrative
jurisprudence of the Global South?... the colonial nature of the post-
colonial IAL
4. “How may we understand the constantly reiterated fact that the legal
and other officials of the Union and State Governments remain so
inveterately fairness-challenged? How may we understand their
minuscule IAL-IQ, which constantly fails to grasp the elementary rules
of natural justice or fair play in governmental action and conduct? Is it
the case that the IAL jurisprudence as developed remains a response
to the ways of governmental lawyering? As each and every SAL
petitioner knows poignantly well, State counsel simply decline, despite
repeated judicial reminders, to file responsive affidavits on time; the
implementation of interim orders and directions remains tardy and
indifferent; State-caused delays in final disposition of social action
matters often exhaust the energies as well as the staying power of
even the most tenacious SAL petitioners … How may we understand
the litigational State conduct save as a kind of war of attrition waged
on them?”
5. what difference has the liberalisation and democratisation of
rules of standing via the SAL made from the perspectives of the
plights and rights of the constitutionally worst-off project,
affected peoples? … How far, further, does the IAL remain gender-
sensitive and equitous?

6. if the IAL is to be understood as a prime instrumentality, overall,

to monitor and arrest the carcinogenic growth of untrammelled
executive power, how far may we well tell stories of this having
actually happened? Has the IAL rescued large masses of Indian
citizens from brute powers of domination, that is, governance
bereft of principles?
4. The Old IAL Formation (OILAF)

develops in an era of the assertion of parliamentary sovereignty

A. In re Delhi Laws Act, 1912 recognised and affirmed the vast powers of
delegated legislation with a principled caveat that the “essential
features” of legislative power – identified as the power of policy-making
accompanied with annexation of sanctions – may not be delegated
away.

B. Rai Sahib Ram Jawaya Kapur and others v State of Punjab, (1955) 2 SCR
225 (next slide)
A petition under Art. 32 was filed by six persons carrying on the business of
preparing, printing, publishing and selling text books for different classes in
the schools of Punjab, particularly for the primary and middle classes, under
the name and style of ‘Uttar Chand Kapur & Sons’.

It was alleged that the Education Department of the Punjab Government in

pursuance of its policy of nationalisation of text books issued a series of
notifications since 1950 regarding the printing, publication and sale of these
books. This had the effect of practically ousting the petitioners and the
fellow traders from the business altogether.
Accordingly, the petitioners prayed for writs in the nature of mandamus
directing the Punjab Government to withdraw the notifications which have
affected their rights.

As per the Government resolutions around May 1950, the Government

practically took upon itself the monopoly of publishing the textbooks on
some of the subjects, and with regard to the rest also, it reserved for itself a
certain royalty upon the sale proceeds. Far more drastic changes followed.
In 1952 by a notification of the Education Department omitted the word
“publishers” altogether and invited only the “authors and others” to submit
books for approval by the Government. These “authors and others”, whose
books were selected, had to enter into agreements in the form prescribed
by the Government and the principal terms of the agreement were that the
copyright in these books would vest absolutely in the Government …
… and the “authors and others” would only get a royalty at the rate of 5% on
the sale of the text books at the price or prices specified in the list. Thus the
publishing, printing and selling of the books were taken by the Government
exclusively in their own hands and the private publishers were altogether
ousted from this business. The 5% royalty, in substance, represented the
price for the sale of the copyright and it was paid to an author or any other
person who, not being the author, was the owner of the copyright and was
hence competent in law to transfer the same to the Government.
It was said that no restrictions could be imposed upon the petitioners’ right
to carry on the trade under Article 19(1)(g) by mere executive orders
without proper legislation and that the legislation, if any, must conform to
Article 19(6)

Accordingly, the petitioners prayed for writs in the nature of mandamus

directing the Punjab Government to withdraw the notifications which have
affected their rights.
“…It can very well be said that our Constitution does not contemplate
assumption, by one organ or part of the State, of functions that essentially
belong to another. The executive indeed can exercise the powers of
departmental or subordinate legislation when such powers are delegated to it
by the legislature. It can also, when so empowered, exercise judicial functions in
a limited way. The executive Government, however, can never go against the
provisions of the Constitution or of any law … but … it does not follow from this
that in order to enable the executive to function there must be a law already in
existence and that the powers of the executive are limited merely to the
carrying out of these laws.”

“Suppose now that the Ministry or the executive Government of a State

formulates a particular policy in furtherance of which they want to start a trade
or business. Is it necessary that there must be a specific legislation legalising
such trade activities before they could be embarked upon? We cannot say that
such legislation is always necessary.”
Detailed discussion on budgetary grants approved post facto by legislature
even if no prior statutory allocation (through Appropriation Acts)

“It may be…that the appropriation Acts are no substitute for specific
legislation and that they validate only the expenses out of the consolidated
funds for the particular years for which they are passed; but nothing more
than that may be necessary for carrying on of the trade or business … The
expression ‘law’ here obviously includes the appropriation Acts. It is true that
the appropriation Acts cannot be said to give a direct legislative sanction to
the trade activities themselves. But so long as the trade activities are carried
on in pursuance of the policy which the executive Government has
formulated with the tacit support of the majority in the legislature, no
objection on the score of their not being sanctioned by specific legislative
provision can possibly be raised.”
BUT THE CAVEAT ADDED: “Specific legislation may indeed be necessary if the
Government require certain powers in addition to what they possess under
ordinary law in order to carry on the particular trade or business. Thus when
it is necessary to encroach upon private rights in order to enable the
Government to carry on their business, a specific legislation sanctioning such
course would have to be passed.”

“In the present case … For the purpose of carrying on the business the
Government does not require any additional powers and whatever is
necessary for their purpose, they can have by entering into contracts with
authors and other people. This power of contract is expressly vested in the
Government under Article 298 of the Constitution.”
But then the court goes on to add:

“…the executive Government are bound to conform not only to the law of
the land but also to the provisions of the Constitution. The Indian
Constitution is a written Constitution and even the legislature cannot
override the fundamental rights guaranteed by it to the citizens.
Consequently, even if acts of the executive are deemed to be sanctioned by
the legislature, yet they can be declared to be void and inoperative if they
infringe any of the fundamental rights of the petitioners guaranteed under
Part III of the Constitution. On the other hand, even if the acts of the
executive are illegal in the sense that they are not warranted by law, but no
fundamental rights of the petitioners have been infringed thereby, the latter
would obviously have no right to complain under Article 32 of the
Constitution…”
HENCE, the material question: “What fundamental rights of the petitioners, if
any, have been violated by the notifications and acts of the executive
Government of Punjab…?”

“The business which the petitioners have been carrying on is that of printing
and publishing books for sale including text books used in the primary and
middle classes of the schools in Punjab. Ordinarily it is for the school
authorities to prescribe the text books that are to be used by the students and
if these text books are available in the market the pupils can purchase them
from any book-seller they like. There is no fundamental right in the publishers
that any of the books printed and published by them should be prescribed as
text books by the school authorities or if they are once accepted as text books
they cannot be stopped or discontinued in future.” Even worse case for
publishers for govt schools

BUT is that what the publishers claimed?

So what is the court doing here?

• Baxi says that the court had some clear choices to make: either say that a
FR was violated by State policy without the authority of legislation, or
that no such right was violated. But it equivocated.

• said the policy did not violate any FRs because no one was forbidden to
publish textbooks; the policy only related to what the school boards or
department of education may prescribe as mandatory texts. However,
the issue was here not book publishing relevant to school education, but
rather concerned the right to publication of prescribed textbooks.
• disturbed by the fact that this decision may open wide doors for
nationalisation policies, the court then proceeded to say that such
measures required the authority of law prescribing reasonable restrictions
subject to judicial review

• But then to still save the policy in the present case, the court said that
such policy stood tacitly authorised by the legislature through the ex post
facto approval of the appropriation Acts

• But then further realised that such holding would deprive the court of all
potency of judicial review power, it added caveats on FRs not being
violative as a pre-requisite for the above holding
Baxi surmises:

“Clearly, the ISC … wished to acknowledge large executive power and, yet,
desired to retain the power to make adjudicatory policy imposing
constitutional control. This means two sorts of diverse things. Justices and
courts may not in principle, at one moment, make decisions that influence
national budget-making … and at another moment, precisely thus, require
by providing for monetary damage awards for the violation of fundamental
rights … How may be understand this replenishing all along of an infinite
reservoir of executive power thus placed beyond the scope of judicial review
of administrative actions, yet also entailing strict constitutional scrutiny?”
“… may I generally say that what makes the IAL interesting and contradictory
is that from its inception it signifies a one-step-forward-two-steps-backward
adjudicatory movement! … judicial see saw! Perhaps, all this may be grasped
only via the recognition of the fact that the first generation of the Indian
Supreme Court justices recognised the need to repose complete trust in the
first generation of nationalist movement Indian political leaders. This was
also the time of recuperation from the massive trauma of the Indian
Partition and a time for sustaining the charismatic model of Indian
development, under the leadership of Pandit Jawaharlal Nehru.”
“Yet, in the nature of things, the fabrication of constructive trust could not
mean abdication of judicial responsibility directed to develop a sense of
limits of the reach of administrative power. The ISC thus, and variously,
proceeds to discipline everyday or routine exercises of power.”

The first device it deploys – requires quotidian administrators ought to

follow the letter and spirit of the statutory powers vested in them: State of
Bombay v K.P. Krishnan, AIR 1960 SC 1223 which Baxi cites to emphasise
the point that statutory powers to make reference of an industrial dispute to
Labour Courts may only be exercised within its stated purpose and ambit
and for no ulterior purpose or motive. Thus stands enwombed the doctrine
of ultra vires: administrators vested with constitutional and/or legislative
powers act within its four corners; they may not act outside jurisdiction or in
bad faith or mala fides.
“Significantly, the OIALF develops some basic norms concerning
administrative adjudication via the requirement that duties arise to act
judiciously when administrative decision vested with power to decide
disputes (judicial powers) acts to the prejudice or detriment of any person. I
say ‘judiciously’ because the ISC does not require administrators to behave
as justices, yet it seeks to impose on administrators a minimal discipline of
fair play; later, this requires constant judicial and juridical elaboration of
when action is merely administrative or ‘quasi-judicial’…”
Board of High School and Intermediate Education, U.P. v Ghanshyam Das
Gupta and others, AIR 1962 SC 1110

Facts: The three respondents were students of G.S. Hindu Intermediate

College at Sikandarao and appeared at the Intermediate (Commerce)
Examination conducted by the appellant in the year 1954. The result of the
examination was published in newspapers in June 1954 and thee
respondents passed in the second division. Then they went on to pursue
further studies. However in December 1954 their fathers and guardians were
informed by the Principal of the College that the Examinations Committee
had cancelled the respondents’ results, and further, debarred them from
appearing at the examination of the next year.
The respondents then filed a WP in the HC contending that the Committee
never afforded them an opportunity to rebut the allegations made against
them and that they were never informed about the nature of the unfair
means used by them in the said examination; the first thing they came to
know was the resolution of the Committee cancelling their results and
debarring them for the next year’s examination.

The procedure adopted by the appellant was arraigned for being in violation
of the PNJ in as much as they were given no opportunity to defend
themselves and to show cause against the action contemplated against
them.
The appellant opposed the application and their case was that the
respondents had used unfair means at the examination and their cases were
reported to the Committee under the regulations and the Committee had
acted under the powers conferred upon it by the U.P. Intermediate
Education Act, 11 of 1921 and the regulations framed under it after a
thorough inquiry. It was not disputed, however, that no opportunity had
been afforded to the respondents to rebut the allegations against them in
the inquiry made by the Committee which resulted in the resolution.

The HC gave the verdict in favour of the respondent. It held that the
committee acted in merely an administrative committee but still enjoined
upon it a duty to hear the respondents.
The main contention on behalf of the appellant in appeal before the SC was
that the HC was wrong in the view it took that any opportunity for hearing
was necessary in this case even though the Committee acted merely
administratively. It is contended that where a body is acting merely
administratively, it is not necessary that it should give a hearing to a party
who might be affected by its decision and that the PNJ, including the maxim
audi alteram partem, apply only to judicial or quasi-judicial bodies, i.e.
bodies on whom a duty is cast to act judicially.

The respondents on the other hand contended that though the final
decision of the HC was correct, it was wrong in holding that the Committee
was acting merely administratively. They argued that the mere fact that
there was nothing express in the Act or the regulations framed thereunder
to hear the examinees was not wholly determinative of the whether there
was a duty cast on the Committee in cases like this to act judicially.
The Court cites Province of Bombay v Kusaldas S. Advani, 1950 SCC 551:

1. if a statute empowers an authority, not being a court in the ordinary

sense, to decide disputes arising out of a claim made by one party under
the statute which is opposed by another party, and to determine the
contesting rights there is a lis, and prima facie and in the absence of
anything in the statute to the contrary, it is the duty of the authority to
act judicially and the decision of the authority is a quasi-judicial act;

2. if a statutory authority has the power to do any act which will

prejudicially affect the subject, then, although there are not two parties
apart from the authority and the contest is between the authority
proposing to do the act and the subject opposing it, the final
determination of the authority will yet be a quasi-judicial act provided it
is required by the statute to act judicially.
In other words, while the presence of two parties besides the deciding
authority will prima facie and in the absence of any other factor impose upon
the authority the duty to act judicially, the absence of two such parties is not
decisive in taking the act of the authority out of the category of quasi-judicial
act if the authority is nevertheless required by the statute to act judicially.

Then the Court in Ghanshyam says: “Now it may be mentioned that the statute
is not likely to provide in so many words that the authority passing the order is
required to act judicially; that can only be inferred from the express provisions
of the statute in the first instance in each case and no one circumstance alone
will be determinative of the question whether the authority set up by the
statute has the duty to act judicially or not. The inference … will depend on the
express provisions of the statute read along with the nature of the right
affected, the manner of the disposal provided, the objective criterion if any to
be adopted, the effect of the decision on the person …”
The Court then examines the provisions of the U.P. Intermediate Education
Act. It finds that no express provision is laid down on the procedures to be
followed by the Committee while deciding on cancellation of results and
debarment, but the court felt that the mere lack of an express provisions is
not material.

“Even though calling for an explanation and hearing the examinee may not
have been made expressly obligatory by the Act or the Regulations, it is
obvious that the Committee when it proceeds to decide matters covered by
Rule 1(1) will have to depend upon materials placed before it, in coming to
its decision. Before the Committee decides to award any penalty it has to
come to an objective determination on certain facts and only when it comes
to the conclusion that those facts are established that it can proceed to
punish the examinee…”
“… the Committee will have to depend upon materials placed before it, for
in the very nature of things it has no personal knowledge in the matter.
Therefore, though the Act or the regulations do not make it obligatory on
the Committee to call for an explanation and hear the examinee, it is implicit
in the provisions of Rule 1(1) that the Committee must satisfy itself on
materials placed before it that one or other of the facts is established to
enable it to take action. It will not be possible for the Committee to proceed
at all unless materials are placed before it to determine whether the
examinee concerned has committed some misconduct …”

Therefore: “… it seems to us only fair that the examinee against whom the
Committee is proceeding should also be heard. The effect of the decision of
the Committee may in an extreme case blast the career of a young student
for life and in any case put a serious stigma…”
“Considering therefore the serious effects following the decision of the
Committee and the serious nature of the misconduct which may be found in
some cases under Rule 1(1), it seems to us that the Committee must be held
to act judicially in circumstances as these. Though therefore there is nothing
express one way or the other in the Act or the Regulations casting a duty on
the Committee to act judicially, the manner of the disposal, based as it must
be on the materials placed before it, and the serious effects of the decision
of the Committee on the examinee concerned, must lead to the conclusion
that a duty is cast on the Committee to act judicially in this matter…”

Thus held, the Committee when exercising its powers under Rule 1(1) acts in
a quasi-judicial capacity and PNJ apply
Baxi:

“These germinal decisions of the first two decades of the jurisprudence of

the ISC no doubt represent a golden era of the IAL. For one thing, these were
the days when justices knew and perfected the art of writing chiselled
judicial prose. They were master-craftspersons of legal prose and rhetoric. ”
Then laments the current trend…

“The OIALF elaborates NJ doctrine as a vector of integrity in public decision

making. Courts and justices begin to foundationally insist on the virtue of
what we now name as governance transparency. Overall judicial strategies,
though evolved case by case, did not deny the investment of vast
discretionary powers in State officials and public authorities; rather, justices
variously insisted that the various decision-makers follow some minimal rules
of fair play.”
“…Even as the OIALF rather patiently yet fully elaborates what must be
named as distinctive form as of the Indian constitutional common law, it
does not always fully mitigate the inequities inherent to the exercise of
administrative discretion.”
But this is not to deny its achievements…

“The Constitution clearly did not explicitly write the texts of NJ maxims and
doctrines such as audi alteram partem (the obligation to afford a hearing or
listening to the adversely affected interests); nemo judex in causa sua [the
obligation requiring that administrative decision-makers must reach their
decisions without personal (self-interested) or pecuniary bias…]. These were
the munificent bounties bestowed on us by the first generation ISC justices,
even when they stopped short of insistence that the Indian rule of law
enacts not merely the idea of the rule by reason but also the rule of reason”
“The rule by reason means generally that the public authorities making
executive or administrative decisions that prejudicially affect rights or
interests of the affected party should be as far as possible ‘speaking’
decisions. The caveat is important because statutes may legitimately
exclude the rule in situations that require immediate or urgent action. Thus,
from early on emerges a distinction between the normal time of IAL
adjudication, contrasted with the state of exception marking situations in
which the IAL normativity may never fully extend!”

“In the OIALF, what mattered more was the development of the doctrine of
reasoned decision making. What counted as such posed a difficult
threshold. The ISC preciously as well precariously denied the sway of the
doctrine of ‘subjective satisfaction’ for arriving at a decision. This meant
that the executive decision-makers may not simply decide as they please;
rather, they ought …
… to arrive at publicly reasoned decisions (the test of ‘objective satisfaction’).
This requirement made (and continues to make) good sense because nothing
remains of IAL if courts and justices have no material before them otherwise to
scrutinise the indictment of arbitrary State action. “Judicial review ends when
‘subjective satisfaction’ reigns supreme. It begins when courts and justices
stand provided with reasons for decision, which may in turn be contested
before them; thus begins the long itinerary of judicial superintendence over
the myriad forms of administrative action, which of necessity open up the
grounds for objective satisfaction via the duty to give reasons. So far so good;
but seldom good enough as well because what may count as ‘good’ reasons,
consistent with the letter and spirit of the Constitution, varies from time to
time. The rule by reason presenting a terrain of growth of indefinite and
indeterminate adjudicative State power always falls short of the rule of
reason.”
How the relationship with the Bar impacts the judicial evolution of IAL:

“When the practice of law becomes primarily profit and power-oriented

business, courts and justices remain severely lonely in speaking to some
higher principles addressing the future of Indian constitutionalism, beyond
the instant imprisonment of meanings of fair play vociferously urged before
them by the Bar … A most fruitful way of reading this admirable book is to
ask at every turn of its page a simple question: How far the changing
composition an character of the Indian Bar, in ways amnesic of its own
constitutional and social responsibility, may be said to have affected the IAL
judicial beings and doings?...”
5. The New IAL Formation (NIALF)

“The NIALF preserves as well as reconstitutes past doctrinal or normative

judicial achievements. The first phase occurs in the post-Emergency era of
cathartic and populist judicial activism. In part, Kesavananda Bharati v State
of Kerala enunciation inaugurates this era.”

“The languages of essentiality, of ‘essential features’ (especially via Delhi

Laws Act, 1912, re) now travel so far as to prescribe some difficult limits for
the amendatory powers of Parliament, acting under Article 368.”
“Maneka Gandhi v Union of India … and its immensely varied progeny continues to
re-write the text of Articles 14 and 21 … The equality before the law and equal
protection of law under Article 14 auspices means in this era that IAL writ-
petitioners may no longer be required to discharge any evidentiary thresholds
showing violation of the enumerated rights under Part III of the Constitution. All
that they now need to do is to chant the mantra of arbitrary and unreasonable
State action! … all that matters is the forensic outcry of ‘arbitrariness’. The justices,
in turn, proceed to all the rest of the work on their own furnishing, as it were the
very being or soul of judicial activism!”

Further – also the re-writing of Article 21 – procedure established by law is due

proves of law
“Via the NIALF itineraries, the ISC remarkably extends judicial discipline over the forms of
constitutional executive action, especially as concerns even the deployment of Article 356
powers. It thus reinvents the doctrine of basic structure via the decision in State of
Rajasthan v Union of India holding, overall, that because lacking any ‘reasonable nexus’
between the reasons disclosed and the ‘satisfaction’ of the President of India, the exercise
of these powers is in fact mala fide.”

democratisation of standing – “The constitutionally-worst off peoples now occupy the

centre stage of the theatres of IAL”

Ramana Dayaram Shetty v International Airport Authority of India – brings a large number
of administrative authority in the ‘gravitational orbit’ of the term State in Article 12.
“Clearly, larger the notion of ‘State’, the greater also remains the scope
of judicial review over administrative action.” but the same
superintendence not extended over corporate entities as they continue
“to escape constitutional and human rights obligations” “Should
constitutional and related IAL interpretive techniques and imagination
altogether leave out “non State” byt also many “State-like” actors, who
exercise powers of life and death over citizens and peoples?”
6. Contemporary IAL Formation (CIALF)

New Economic Policy (NEP) and the dismantling of the control and command economy models:
- Denationalisation: a process of privatisation of resources earlier owned, managed or controlled
by the State as a lead economic actor, State assets
- Disinvestment: sale of State property and assets in the market overt to private bidders
- Deregulation: the dismantling of legislation and administrative action that earlier engaged some
serious-minded engagement by the government to ensure that the constitutionally worst-off
Indians are not entirely sacrificed at the altar of high economic growth rate; the important policy
here is the pursuit of ‘flexible labour markets’ ie the continuing diminution of the rights of the
organised and disorganised working/labouring peoples
- De-reservation: no constitutional obligation for the so-called weaker sections of
the society may constitute any part of Indian and multinational corporations’
inheritance of erstwhile State assets [the ISC remains insistent in its most recent
ruling in Ashoka Kumar Thakur v Union of India that private education institutions
may not as yet, indeed if ever, attract the discipline of the newly announced
regime of the OBC reservations].
- De-juridicalisation: new independent regulatory agencies not control and shape
the agendum for judicial review
- De-politicisation: no judicial review of economic polices
- De-constitutionalisation: executive policy directed towards foreign investors
instead of the constitutionally worst-off
“The several ‘Ds’ constitute the constitutive contexts of CIALF. Obviously, Indian
courts and justices now declare NJ very differently. A wide, and indeed
constitutionally vast, margin of appreciation is now accorded to executive
discretion which shapes macroeconomic policy, including trade and investment
decisions. The ISC now variously declares itself incapable of reviewing acts of such
policy. The question stands now posed no longer in terms of applying strict
constitutional scrutiny of ‘the lush field of administrative law’, but rather entails
forms of accelerated ways of judicial exit out of these. The major figure here is the
‘policy’ realm over which justices now relinquish all judicial review control.”

even when affects individual constitutional rights

even impacts the value placed upon NJ: “in Indian Airlines Officers’ Assn. v
Indian Airlines Ltd. … the employees of the Indian Airlines were held not
denied NJ because of non-consultation with them. The ISC is candid, ‘The
employees of Indian Airlines did not and could not have any say in policy-
making (cadre merger)’. Even when their rights and interests may be
adversely affected, they did not have any NJ right to be heard.”

“… every time a departure is made from the OIALF or NIALF, Their Lordships
are careful to emphasise that their decisions remained based on ‘the facts
and circumstances of the case’.”
Baxi says that this leaves very little of the normative stuff of IAL: ‘Deciding on the
facts and circumstances of each case, without simultaneous affirmation of the vital
NJ principles, facilitates the CIALF aggressively free-market friendly, rather than
human rights friendly, postures. The development of the constitutional muscle now
favours the communities of direct foreign investors and constituencies of the global
capital over the bleeding heart human rights talk of the NIALF. Inc omplete plain
words, justices and courts now seem to pursue a new IAL adjudicatory policy
taking-off the register of high adjudicative power any active citizen recourse
confronting the seven Ds. No doubt the CIALF continues to lop the alphabet of
natural justice; yet this now comprises a different narrative altogether, as
compared and contrasted with the old and the new IAL formation.
7. IAL, Global Administrative Law (GAL) and Globalising
Administrative Law (GOAL)

do in Tutorials
7. Who wins and who loses under the rule of law

“The basic expectation in a ROL society is … that the holders of public power and authority
must be able to publicly justify their action as legally valid and even socially wise and just.”

“Naturally, this effort does not wholly or even substantially succeed. But what matters is,
we are constantly told, that the effort is made at all and the underlying conviction is that
such an endeavour is worthwhile and necessary.”

“Precisely because the IAL celebrates this ideology, it becomes necessary to pose the
question of winners and losers.”
apart from winners and losers, there are “born losers” –” those with NO access to courts
and legal professionals; those priced out of legal services and judicial markets”

Then he gives the four categories of regular/systemic users of the IAL in each phase.

1. Article 311 citizens ie civil servants

2. the elected public officials or belonging to political parties
(both 1 and 2 are “super citizens” for the ability to cause hurt or harm to lay folks/aam
aadmi
“The in-service Article 311 super-citizens derive the maximal
advantages of the doctrine of natural justice (fully protecting their
security of tenure and other unwelcome intrusions – such as arbitrary
postings) and, yet, routinely deny this to ordinary citizens caught within
the web of their administrative powers. They maintain that the very
advantages they seek for themselves may yet be difficult of a fuller
extension to ordinary citizens, given the dynamics of exigent public
administration and regulation, in turn a sphere best protected by
immunity from judicial review. Even so they have no compunction
whatsoever in invoking these processes and powers to defend their
own rights and interests versus their ‘political masters’…”
3. Gurubhai citizens: These represent an ensemble of trade, business and industrial
citizens, who otherwise fully and strategically allied with the political (ruling)
classes, yet crowd the courts presenting themselves as vulnerable citizen-victims of
‘arbitrary’ administrative action

“One way to tell stories about the IAL remains just this: a class of super citizens who
otherwise specialise in the denial of fair play and human rights of the working
‘classes’ appear as IAL litigants, constituting a series of vulnerable social groups!...”

the movie itself – an entrepreneurial classes’ critique of State regulatory action

4. “a rather miscellaneous category of the Indian middle lasses who indeed enjoy
and manipulate the blessings of IAL developments in different moments of Indian
constitutional development. They have exploited, fascinatingly, every nook and
cranny of an indeterminate development of IAL jurisprudence, naturally, to their
own advantage…”
- university students
- self-promotion claims by university teachers
- stay-order citizens: students, academics, highly designated government officials,
even stay-order Vice-Chancellors
- successful deflection of all sensible regulatory efforts advantaging industries
(workers unions etc)
- empowering of ‘eco-enemies’ like forest contractors, miners, dam builders etc
- political actors claiming NJ against EC’s decisions
9. Engaging the Bhopal Catastrophe as a way of paradigmatic understanding of the IAL

- second Bhopal catastrophe ie the judicial settlement orders immunising the Union
Carbide Corporation
- third catastrophe ie the callous and long-drawn disbursement of the compensation
amount
- fourth catastrophe ie the never-ending story of official neglect and political indifference
towards the victims

“Indian humanity has experienced … the cruel hollowness of the commanding doctrines of
the IAL, otherwise superbly crafted by some India’s (and world’s) gifted justices”. eg – NJ
violated during settlement arrived at by the SC
“On this perspective, administrative law in India emerges as an archive of
production of human rightlessness for the Indian ‘masses’ and a saga of solicitude
for the Indian middle ‘classes’. The superbly crafted doctrines and principles of
administrative justice ensure that the Indian rule-of-law notions provide moments
of solace to the Indian middle classes against the amorality of the
political/executive combine.”

IAL mostly favours the middle classes or the “constitutional haves”. Host of egs in
the reading

How do you see the demonenisation decision in this light?

10. Judging the Judges: Fairness, Efficiency, and Judicial Discretion

“Must of the IAL, as well as the SAL, in particular, and constitutional interpretation
in general of courts and justices remain just this; they fail themselves to practice
what they preach to others; put another way, they do not extend to their own work
the maxim, ‘Wherever there is power, there is responsibility’. There is no question
that this maxim must extend to the judicial makers of the IAL. This introduction has
so far (and the book in many places) expressed deep disappointment with some
actual decisions and specific decisional IAL trends because courts and justices have
failed to follow some foundational principles of natural justice that they have
themselves enunciated…”
1. there is no universal theory about what judges ought or ought not to do
(judicial role);
2. most purported theories of the judicial role on, on deeper analysis, turn
out to be relevant o, and drawn from, the experience of the First World
societies, and that those may not be uncritically extended to our
experience;
3. the inherited categories of distinction between legislation and
adjudication, are to say the very least, questionable and ought to be
questioned especially when corrupt or intransigent ruling classes tend to
relegate the constitutional normativity into a historic dustbin.
“In the main, three related arguments are presented concerning the
‘proper’ limits of judicial role and function. The first argument is best
called the ‘usurpation’ or the ‘fine line’ position, which says that
justices ought to be careful lest their work trespass on the legitimate
province and function of the co-equal branches of governance. The
second argument is the efficiency argument, which says that even the
most constitutionally sincere and human rights ardent justices may not
efficiently pursue the tasks they undertake because they lack expertise
necessary to achieve their ends. The third argument concerns the limits
of effective judicial action…”
 MODULE -1
2. THE THREE IMPORTANT CATEGORIES OF ADMINISTRATIVE ACTION
 The Three Important Categories of Administrative Action
• Recall Kusaldas.

Union of India and anr v Cynamide India Ltd and another, (1987) 2 SCC
720
• In exercise of powers under Section 3(2)(c) of the Essential
Commodities Act, the Drugs (Prices Control) Order, 1970 was made.
The Central Government thereafter issued notifications under the said
Order fixing the maximum prices at which various indigenously
manufactured bulk drugs may be sold by the manufacturers. The HC
quashed the impugned notifications on the ground of failure to
observe PNJ.
‘We start with the observation, “price fixation is neither the function nor the
forte of the court”. We concern ourselves neither with the policy nor with the
rates. But we do not totally deny ourselves the jurisdiction to enquire into the
question, in appropriate proceedings, whether relevant considerations have
gone in and irrelevant considerations kept out of the determination of the
price. For example, if the legislature has decreed the pricing policy and
prescribed the factors which should guide the determination of the price, we
will, if necessary, enquire into the question whether the policy and the factors
are present to the mind of the authorities specifying the price. But our
examination will stop there. We will go no further … The assembling of the raw
materials and the mechanics of price fixation are the concern of the executive
and we leave it to them. And, we will not re-evaluate the considerations even if
the prices are demonstrably injurious to some manufactures or producers’. The
court will, of course, examine if there is any hostile discrimination. That is a
different “cup of tea” altogether.’
‘The second observation we wish to make is, legislative action, plenary or
subordinate, is not subject to rules of natural justice, In the case of
Parliamentary legislation, the proposition is self-evident. In the case of
subordinate legislation … in which case the substantial non-observance of the
statutorily prescribed mode of observing natural justice may have the effect of
invalidating the subordinate legislation. The right here given to rate payers or
others is in the nature of a concession which is not to detract from the
character of the activity as legislative and not quasi-judicial. But, where the
legislature has not chosen to provide for any notice or hearing, no one can
insist upon it and it will not be permissible to read natural justice into such
legislative activity.’
‘The third observation we wish to make is, price fixation is more in the nature
of a legislative activity than any other. It is true that, with the proliferation of
delegated legislation, there is a tendency for the line between legislation and
administration to vanish into an illusion … The distinction between the two has
usually been expressed as “one between the general and the particular”. “A
legislative act is the creation and promulgation of a general rule of conduct
without reference to particular cases; an administrative act is the making and
issue of a specific direction or the application of a general rule to a particular
case in accordance with the requirements of policy.” “Legislation is the process
of formulating a general rule of conduct without reference to particular cases
and usually operating in future; administration is the process of performing
particular acts, of issuing particular orders or of making decisions which apply
general rules to particular cases…’ But exceptions may be there…
‘A price fixation measure does not concern itself with the interests of an
individual manufacturer or producer. It is generally in relation to a particular
commodity or class of commodities or transactions. It is a direction of a
general character, not directed against a particular situation … It is conceived in
the interests of the general consumer public. The right of the citizen to obtain
essential articles at fair prices and the duty of the State to so provide them are
transformed into the power of the State to fix prices and the obligation of the
producer to charge no more than the price fixed. Viewed from whatever angle,
the angle of general application, the prospectiveness of its effect, the public
interest served, and the rights and obligations flowing therefrom, there can be
no question that price fixation is ordinarily a legislative activity.’

rare cases not so - compulsory sale to Govt or its nominee

‘We also wish to clear a misapprehension which appears to prevail in certain
circles that price fixation affects the manufacturer or producer primarily and
therefore fairness requires that he be given an opportunity and that fair
opportunity to the manufacturer or producer must be read into the procedure
for price fixation. We do not agree with the basic premise that price fixation
primary affects manufacturers and producers. Those who are most vitally
affected are the consumer public. It is for their protection that price fixation is
resorted to and any increase in price affects them as seriously as any decrease
does a manufacturer, if not more.’

the Order enabled the govt to conduct “such enquiry as it thinks fit”, though.
Implications?
‘A provision for “such enquiry as it thinks fit” by a subordinate legislating body
… is generally an enabling provision to facilitate the subordinate legislating
body to obtain relevant information from any source and it is not intended to
vest any right in anybody other than the subordinate legislating body. In the
present case, the enquiry contemplated by Para 3 of Drugs (Prices Control)
Order is to be made for the purposes of fixing the maximum price at which a
bulk drug may be sold, with a view to regulating its equitable distribution and
making it available at a fair price. The primary object of the enquiry is to secure
the bulk drug at a fair price for the benefit of the ultimate consumer…’
‘However, the interests of the manufacturers are not to be ignored. In fixing
the price of a bulk drug, the Government is expressly required by the Order to
take into account the average cost of production of such bulk drug
manufactured by “an efficient manufacturer” and allow a reasonable return on
“net worth”. For the purpose too, the government may gather information
from any source including the manufacturer… Such enquiry as it thinks fit is an
enquiry in which information is sought from whatever source considered
necessary by the enquiring body and is different from an enquiry in which an
opportunity is required to be given to persons likely to be affected. The former
is an enquiry leading to a legislative activity while the latter is an enquiry which
ends in an administrative or quasi-judicial decision. The enquiry contemplated
by Para 3 of the Drug (Prices Control) Order is an enquiry of the former
character.’
‘The legislative activity being a subordinate or delegated legislative activity, it
must necessarily comply with the statutory conditions if any, no more and no
less, and no implications of natural justice can be read into it unless it is a
statutory condition.. Notwithstanding that price fixation is a legislative activity,
the subordinate legislation has taken care here to provide for a review. The
review provided by para 27 of the Order is akin to a post-decisional hearing
which is sometimes afforded after the making of some administrative orders, but
not truly so.’
‘It is a hearing which follows a subordinate legislative activity intended to
provide an opportunity to affected persons such as the manufacturers, the
industry and the consumer public to bring to the notice of the subordinate
legislating body the difficulties or problems experienced or likely to be
experienced by them consequent to the price fixation, whereupon the
government may make appropriate orders…’. then the court says after a review
a fresh price may be notified through a fresh notification i.e. a fresh
subordinate legislative activity; and this is the relief provided to the petitioners
– hearing within 2 months from the judgment’s date and review app to be
disposed off two weeks within the conclusion of the hearing
Indian National Congress (I) v Institute of Social Welfare and Others, Appeal
(Civil) 3320-21 of 2001, Supreme Court of India

Whether the Election Commission of India under Section 29A of the

Representation of People Act, 1951 has the power to de-register or cancel the
registration of a political party on the ground that it has called for hartal by
force, intimidation or coercion and thereby violated the provisions of the
Constitution. Central here is the precedent in Communist Party of India
(Marxist) v Bharat Kumar and others, AIR 1998 SC 184 which held that ‘there is
a distinction between “bundh” and “hartal”. A call for a bundh involves
coercion of others into towing the lines of those who called for the bundh and
that the act was unconstitutional, since it violated the rights and liberty of
other citizens…”.’
In the WPs before the HC it was alleged that despite this judgment, the
political parties in the State of Kerala continued to call for bundhs under the
name and cover of hartals. Political parties including the CPI(M) and INC(I) filed
affidavits stating that the call for hartal given by them was not a bundh.

The ECI submitted before the court that it does not have the power to de-
register or cancel the registration of a political party u/s 29A of the RPA.

S. 29A – make an application to be regd as a political part; contain expressly

enumerated particulars (details like members, units, name of president etc);
reasonable opportunity of being heard; decision of the Commission
The question then arose whether in the absence of an express power in the
Act, the ECI was empowered to de-register a registered political party.

The AG argued that while exercising its powers under 29A, ECI acts as a quasi-
judicial body and in the absence of any express powers of review conferred
upon it, it has no power to de-register.

The respondent argued that the discharge of functions under 29A was not
quasi-judicial as there was no lis. Unless there is a lis or two contending
parties, the function assigned would administrative in nature.
Held: ‘But there are cases where there is no lis or two contending parties
before a statutory authority yet such a statutory authority has been held to be
quasi-judicial and decision rendered by it as quasi-judicial decision when such
a statutory authority is required to act judicially’

cites Kusaldas – recall

‘Applying the aforesaid principle, we are of the view that the presence of a lis
or contest between the contending parties before a statutory authority, in the
absence of any other attributes of a quasi-judicial authority is sufficient to hold
that such a statutory authority is quasi judicial authority. However, in the
absence of a lis before a statutory authority, the authority would be quasi-
judicial authority if it is required to act judicially.’
‘What distinguishes an administrative act from quasi-judicial act is, in the case
of quasi-judicial functions under the relevant law the statutory authority is
required to act judicially. In other words, where law requires that an authority
before arriving at decision must make an enquiry, such a requirement of law
makes the authority a quasi-judicial authority.’

Then the court considers the provisions of 29A: ‘it is manifest that the
Commission is required to consider the matter, to give opportunity to the
representative of political party and after making enquiry and further enquiry
arrive at the decision whether to register a political party or not. In view of the
requirement of law that the Commission is to give decision only after making
an enquiry, wherein an opportunity of hearing is to be given to the
representatives of the political party, we are of the view that the Election
Commission under Section 29A is required to act judicially and in that view of
the matter the act of the Commission is quasi-judicial.’
‘… unless there is express power of review conferred upon the Election
Commission, the Commission has no power to entertain or enquire into the
complaint for de-registering a political party for having violated the Constitutional
provisions.

However, there are three exceptions where the Commission can review its order
registering a political party. One is where a political party obtained its registration
by playing fraud on the Commission, secondly it arises out of sub-section (9) of
Section 29A of the Act and thirdly, any like ground where no enquiry is called for on
the part of the Election Commission, for example, where the political party
concerned is declared unlawful by the Central Government under the provision of
the Unlawful Activities (Prevention ) Act, 1967 or any other similar law.’
[(9) says if there is a change in details post-registration then communicate
forthwith to the commission] [ceased to have faith in Const, not upholding
sovereignty, unity etc]
‘In such cases, power of the Commission to cancel the registration of a political
party is sustainable on the settled legal principle that when a statutory
authority is conferred with a power, all incidental and ancillary powers to
effectuate such power are within the conferment of the power, although not
expressly conferred. But such an ancillary and incidental power of the
Commission is not an implied power of revocation. The ancillary and incidental
power of the Commission cannot be extended to a case where a registered
political party admits that it has faith in the Constitution and principles of
socialism, secularism and democracy, but some people repudiate such
admission and call for an enquiry by the Election Commission. Reason being, an
incidental and ancillary power of a statutory authority is not the substitute of
an express power of review.’
State of Punjab v Tehal Singh and others, (2002) 2 SCC 7

The case concerned the power of the state government to issue notifications
regarding establishment of Gram Sabha areas. Reiterated, that the power is
legislative in character and hence PNJ don’t apply in the absence of express
provisions. UNLESS govt action directed against an individual.

[Respondents 1 and 2 were the Sarpanch and member respectively of Gram

Sabha W and filed a WP contending that two notifications issued by the State
declaring a new Gram Sabha area K by excluding abadi portions of one village
and two other villages from the original Gram Sabha W were invalid as no
opportunity of hearing had been given to residents of the excluded portions.
WP dismissed.]
Macleods Pharmaceuticals Ltd and another v Union of India and another,
2012 SCC OnLine Mad 1735

The Drugs Technical Advisory Board constituted by the Central Government in

terms of Section 5(1) of the Drugs and Cosmetics Act, 1940 took up for
consideration the proposal to re-examine the continued marketing of 6 drug
formulations taken up for review:
1. Nimesulide (analgesic)
2. Phenylpropanolamine (PPA) (decongestant)
3. Gatifloxacin (antibiotic)
4. Tegaserod (for irritable bowel syndrome in female)
5. Deanxit (FDC of Flupenthixol and melitracen) for psychogenic depression
6. Placenta Extract
The Board resolved to constitute an Expert Committee comprising of seven
members for examining the issues relating to the safety aspects of these 6
formulations. The Board also gave liberty to the Expert Committee to co-opt
experts to facilitate review of the drugs, if required.

In so far as Gatifloxacin was concerned the Committee held a meeting in which

ten persons participated. One was the Professor and Head of the Department
of Pharmacology, another was a scientist from the Indian Council of Medical
Research, the third was the Hon Secy Gen of the IMA, and three were from
CDSO while 4 were special invitees.
One of the two representatives of AIIMS and the Director of Indian Veterinary
Research Institute could not attend the meeting. The Hon. Sec. Gen. of IMA
attended as a representative of IMA. One Dr. Anoop Misra of Fortis could not
attend but forwarded his recommendation on Gatifloxacin.
Based on the Committee’s recommendations the Central Govt. prohibited the
manufacture, sale and distribution of the drug. The notification was challenged
by the company Macleods Pharmaceuticals Ltd.

Grounds:
1. the impugned order was without the advise of the DTAB;
2. after constituting an Expert Committee comprising of 7 members, the
tenure of Office of the DTAB itself expired and hence the issue never came
up for consideration before it;
3. the Expert Committee constituted by DTAB comprised of 7 persons out
whom only 2 participated in the meeting in which the recommendation was
made banning the drug;
4. in the place of a nominated Expert from the IMA another person was
allowed to participate;
5. the recommendation of the doctor from Fortis appears to have been taken
into account by the Expert Committee without disclosing its contents;
6. in respect of other drugs, the representatives of the pharmaceutical
industry were given an opportunity of being heard by the Expert
Committee, but in respect of the drug in question, none of the
manufacturers was given any opportunity of presenting their experts’ view
points;
7. the drug had been in market with proper approval for 10 years; no urgency
to accept the recommendation of the Expert Committee in Feb 2011 when
the DTAB was likely to be and had in fact been constituted in April 2011;
8. therefore the ban was totally arbitrary, unjust and illegal
contention 1 rejected as no such requirement in the express provision

contention 2 rejected as the Expert Committee was constituted whilst the DTAB
was in tenure. The constitution of the committee was issue-specific so
expiration of DTAB did not make the committee report unsuitable. The sub-
committee’s report can stand on its own.

contention 3 rejected as factually incorrect; five of seven participated; sixth

could not; three experts in place of the seventh person (Professor of Medicine)
came and all were professors and HoDs. The DTAB did not name any individuals
in its meeting as the members of the committee but only the broad
composition by referring to the institutions that may have a representation
contention 4 rejected on the same basis – DTAB merely indicated the
institution, not the specific name/individual

contention 5 rejected - the committee referred to Dr. Anoop Misra’s opinion in

only one place in its deliberations. But the same cannot be said to have vitiated
the entire proceedings in which at least 10 experts had participated and
deliberated. Plus he was an invited expert and not a nominated member of the
sub-committee.
‘The nature of the functions performed by the sub-committee were not quasi
judicial or judicial in nature. Therefore, they were not required to record every
opinion tendered in black and white and deal with the same, as a court of law
would do. Once the records disclose that the inputs furnished by a person who
was merely an invitee, but not a member of the committee, were taken into
account, that would satisfy the requirements of law, especially in the light of
the nature of the functions performed by the sub-committee.’
contention 6 – the power exercised by the Central Government under section
26A is primarily legislative in nature and hence the PNJ have no role to play.
Plus the minutes revealed that the committee had taken opposing views and
relevant considerations into account before reaching the decision

contentions 7 and 8 low hanging fruit now? If accepting it is harmful, then no

argument to continue just because the harm was allowed to run its course in
the past

‘Therefore, it is clear that world over, Court have accorded deferential

treatment to complex assessments made or decisions taken, by competent
authorities, especially in matters concerning public health. Sinch public
accountability of executive and legislative authorities is far greater than that of
courts … this court is expected to avoid a path that angels fear to tread…’
 MODULE - 2
RULE OF LAW AND GOVERNANCE THROUGH REGULATIONS AND
ADMINISTRATIVE DIRECTIONS
See Philip Hamburger’s view on an ‘Administrative State’. Do you agree?

Delegated Legislation, and Conditional Legislation

“Contingent or conditional legislation may be defined as a statute that

provides control but specifies that they are to go into effect only when a
given administrative authority finds the existence of conditions defined in
the statute itself.

In subordinate legislation, the process consists of the discretionary

elaboration of rules and regulations.” (Massey, 84)
“In conditional legislation, the gun and gunpowder is provided by the
legislature and the administrative authority is only required to pull the
trigger, but in subordinate legislation the administrative authority is to
manufacture the gunpowder also.”

US courts developed the distinction by stating that discretion is present in

SL and not in CL, but that’s not necessarily true.

“… in conditional legislation, the legislation is 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 or not those conditions are fulfilled…
… In case of delegated legislation proper, some portion of the legislative
power 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, i.e. the
ancillary functions of laying down details in favour of another authority for
executing the policy of the statute enacted.” (Massey, 84)

“The distinction between conditional legislation and delegated legislation

exists in this that whereas 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 does confer some
legislative power on some outside authority and is, therefore, open to
attack on the ground of excessive delegation.” (Ibid)
Some examples:

King Emperor v Benoari Lal Sarma, 1994 SCC OnLine PC 32: the Privy Council
for the first time upheld the validity of the Governor General’s Ordinance of
special courts which had delegated the power to extend the duration of the
ordinance on provincial governments in case of an emergency, on the
ground of conditional legislation. The Privy Council observed that it was a
piece of conditional legislation as the legislation was complete and what
had been delegated was the power to apply the Act on the fulfilment of
certain conditions.
Inder Singh v State of Rajasthan, AIR 1957 SC 510: the Supreme Court
upheld the validity of the Rajasthan Tenants’ Protection Ordinance on the
ground that it is conditional legislation. The Ordinance was promulgated for
two years, but Section 3 had authorised the Governor to extend its life by
issuing notifications if required.

Tulsipur Sugar Co. Ltd v Notified Area Committee, (1980) 2 SCC 295: the
Supreme Court upheld the validity of a notification issued under Section 3 of
the U.P. Town Areas Act, 1914 on the ground that it is not a case of
“subordinate legislation” but of “conditional legislation”. In this case by a
notification under the Act, the limits of Tulsipur town had been extended to
the village Shitalpur, where the sugar factory of the plaintiff was situated.
I.T.C. Bhadrachalam Paperboards v Mandal Revenue Officer, (1996) 6 SCC
634: the Supreme Court held that the power conferred on government to
bring an Act into existence to grant exemption under it is a conditional
legislation and not delegated legislation.

Union of India v Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44: the
Court was of the view that statute providing that a certain provision thereof
would come into force on a date to be notified by the government is a
conditional legislation, and such a power did not enable the government to
decide whether to bring or not to bring that provision into force. However,
no mandamus can be issued against the government to consider whether
the provision should be enforced and when the government would be able
to do it.
So, three categories of conditional legislation:
1. statute enacted by legislature, future applicability to a given area left to
the subjective satisfaction of the delegate as to the conditions indicating
the proper time for that purpose;
2. Act enforced, but power to withdraw the same from operation in a given
area or in given cases delegated to be exercised on subjective
satisfaction or objective satisfaction of the delegate as to the existence
of requisite condition precedent; and
3. power exercisable upon the delegate’s satisfaction on objective facts by
a class of persons seeking benefit for the exercise of such power to
deprive the rival class of persons of statutory benefits
^The last category of conditional legislations attracts PNJ (even as DL
doesn’t) (Massey, 85-6).
Also: sub-delegated, i.e. delegation by the delegate. Can’t unless authorised
by the enabling Act.

Panama Refining Co. et al. v Ryan et al., 293 US 388 (1935)

NB – Same year as ALA Schechter and also under NIRA

In 1933, the President issued Executive Order 6199 via the National
Industrial Recovery Act (NIRA). The order prohibited transporting petroleum
and petroleum products in interstate and foreign commerce if they had
been produced in excess of the amounts permitted by states. Panama
Refining Co. operated an oil refinery and sought an injunction against
enforcing the regulations that were created under the NIRA.
SEC. 9(c), NIRA:

“The President is authorized to prohibit the transportation in interstate and

foreign commerce of petroleum and the products thereof produced or
withdrawn from storage in excess of the amount permitted to be produced
or withdrawn from storage by any State law or valid regulation or order
prescribed thereunder, by any board, commission, officer, or other duly
authorized agency of a State. Any violation of any order of the President
issued under the provisions of this subsection shall be punishable by fine of
not to exceed $1,000, or imprisonment for not to exceed six months, or
both.”
“Section 9(c) is brief and unambiguous. It does not attempt to control the
production of petroleum and petroleum products within a state. It does not
seek to lay down rules for the guidance of state Legislatures or state officers.
It leaves to the states and to their constituted authorities the determination
of what production shall be permitted. It does not qualify the President's
authority by reference to the basis or extent of the state's limitation of
production. Section 9(c) does not state whether or in what circumstances or
under what conditions the President is to prohibit the transportation of the
amount of petroleum or petroleum products produced in excess of the
state's permission. It establishes no criterion to govern the President's
course. It does not require any finding by the President as a condition of his
action. The Congress in section 9(c) thus declares no policy as to the
transportation of the excess production. So far as this section is concerned, it
gives to the President an unlimited authority to determine the policy and to
lay down the prohibition, or not to lay it down, as he may see fit. And
disobedience to his order is made a crime punishable by fine and
imprisonment.”
nor do any implied limitations emerge from other provisions of section 9 or the
Act.

“It is no answer to insist that deleterious consequences follow the transportation

of 'hot oil'—oil exceeding state allowances. The Congress did not prohibit that
transportation. The Congress did not undertake to say that the transportation of
'hot oil' was injurious. The Congress did not say that transportation of that oil was
'unfair competition.' The Congress did not declare in what circumstances that
transportation should be forbidden, or require the President to make any
determination as to any facts or circumstances. Among the numerous and diverse
objectives broadly stated, the President was not required to choose. The President
was not required to ascertain and proclaim the conditions prevailing in the industry
which made the prohibition necessary. The Congress left the matter to the
President without standard or rule, to be dealt with as he pleased. The effort by
ingenious and diligent construction to supply a criterion still permits such a breadth
of authorized action as essentially to commit to the President the functions of a
Legislature rather than those of an executive or administrative officer executing a
declared legislative policy…”
“The question whether such a delegation of legislative power is permitted by
the Constitution is not answered by the argument that it should be assumed
that the President has acted, and will act, for what he believes to be the
public good. The point is not one of motives, but of constitutional authority,
for which the best of motives is not a substitute.”

“Moreover the Congress may not only give such authorizations to determine
specific facts, but may establish primary standards, devolving upon others
the duty to carry out the declared legislative policy; that is, as Chief Justice
Marshall expressed it, 'to fill up the details' under the general provisions
made by the Legislature. Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253.”
“Thus, in every case in which the question has been raised, the Court has
recognized that there are limits of delegation which there is no constitutional
authority to transcend. We think that section 9(c) goes beyond those limits. As to
the transportation of oil production in excess of state permission, the Congress
has declared no policy, has established no standard, has laid down no rule. There
is no requirement, no definition of circumstances and conditions in which the
transportation is to be allowed or prohibited.”

“If section 9(c) were held valid, it would be idle to pretend that anything would be
left of limitations upon the power of the Congress to delegate its lawmaking
function … Instead of performing its lawmaking function, the Congress could at
will and as to such subjects as it chooses transfer that function to the President or
other officer or to an administrative body. The question is not of the intrinsic
importance of the particular statute before us, but of the constitutional processes
of legislation which are an essential part of our system of government.” HELD:
Order w/o constitutional authority.
 The Occupational Safety and Health Act, 1970
delegated broad authority to the Secretary of
Industrial Labour to promulgate standards to ensure
Union safe and healthy working conditions for US
workers. OSHA (the Occupational Safety and
Department Health Administration) was the agency
v American responsible for carrying out this authority.

Petroleum Section 3(8) of the Act defined an

Institute, 448 “occupational safety and health standard” as a
standard that is “reasonably necessary or
U.S. 607 appropriate to provide safe or healthful
employment”.
‘Deconstructing Nondelegation’, Cynthis R. Farina

“In sum, the indefatigable fervor with which we cling to non-delegation

arguments is difficult to justify based on either the language of the
Constitution or the background understandings of agency law from
which the delgata potestas maxim derives. Rather, it appears to be
anxiety about the consequences of two centuries of statutory
delegation to agencies that keeps the delegation debate alive. This
disquiet about modern regulatory government comprises several
distinct concerns.”
These concerns are:

1. broad congressional delegation has led to a huge regulatory regime reaching

virtually every significant aspect of our social and economic lives.
Overdelegation; policy choices delegated etc
2. “allowing Congress to avoid the kinds of detailed policy specification that
would founder in the bicameralism and presentment process has increased the
production of federal statutory law.” Federal government increasingly taking on
the responsibility – desirably so – of solving environmental, health and safety,
educational, and other core social problems.
3. “delegating so much policy-making powers to administrative agencies has
created serious problems of control and accountability. Agencies, according to
this critique, are making policy with little external oversight and less
democratic accountability to the people.”
“We have good reason to worry about these things. Currently, close to two hundred
distinct entities have rulemaking authority – that is, the power to make regulations having
the force of law. They make about four hundred thousand rules per year, an average of
seventy five per week … guidance documents …they grant permits and other
authorisations; they require product recalls and undertake enforcement actions. Agencies
even make significant regulatory choices by not acting.”

“For cognitive and psychological reasons, humans seek to simplify complexity. The
nondelegation doctrine, as traditionally articulated, represents one simplifying response to
the concern that the mass of federal regulatory policymaking power is uncontrolled and
unaccountable: Congress itself should exercise the power. A more recent twist represents a
different simplifying response: The President should exercise, or at least direct the exercise
of, the power…
… Because Article II vests the President with all the federal executive power,
the President’s duty to take care that federal law be faithfully executed
entails the power to direct the decisions of regulatory decision-makers.”

Farina says that both of these ‘simple’ solutions are at best inadequate and
disappointing: “The sheer size and complexity of the federal regulatory
enterprise defeats rational, coordinated, democratically responsive decision
making by any single entity, be it the 535 members of Congress or the 1,500
people in the Cabinet and Executive Office of the President who are the
President’s eyes, ears, and often the voice with respect to regulatory
decisions.”
“Even with respect to particular, highly salient regulatory policy
choices, it is far from obvious that a congressional or presidential
decision is a significant gain in democratic control and accountability.
As the judiciary has elaborated on the basic procedural framework of
the Administrative Procedure Act, agency decision making is often far
more broadly participatory, transparent, and publicly justified than is
congressional or presidential action. Moreover, the growing interest in
using the Internet and other information and communication
technologies in the regulatory process – e-government – has great
potential to make agency decision making even more open,
comprehensible, and accessible to citizens.”
“Absent a fundamental revision in Americans’ expectations of what the
federal government should accomplish, we must rely on multiple entiti
es and processes to meet the challenge of democratic control and acco
untability in the regulatory state: the House and the Senate through th
eir overlapping, and often competing, oversight and appropriations co
mmittees;
the multiple centers of executive influence in the Cabinet and the vario
us White House offices that orbit the President and often compete to b
e his authentic voice in the administration; the courts in their role as re
viewers; and private individuals, entities, and interest groups in their rol
e as litigants, lobbyists, repeat players, and watchdogs. ”
“For nearly a century, Congresses and Presidents of both parties have r
esponded to perceived economic and social problems by creating regul
atory agencies that wield substantial policymaking authority. For decad
es, public opinion polls have revealed solid and remarkably stable majo
rity support for active federal government engagement in environment
al, health and safety, and economic issues. If all this is not the authentic
working out of representative democracy, then it is hard to see what se
lf-government would mean for the people of a large, heterogeneous na
tion.”
“The real problem with framing concerns about regulatory government
as a question of power is that when the inevitable confirmation of
congressional authority comes, we tend to act as if there is nothing more
to say. Debates about whether Congress can delegate have crowded
out debates about whether Congress ought to delegate. Do we really
believe that the sum and substance of congressional and presidential
responsibility is to avoid doing that which they are prohibited from
doing? Surely the power that we, the people, have given them through
the Constitution comes impressed with an obligation to reflect carefully
upon whether what may be done should be done. Whether or not any of
the various concerns that continue to impel ‘nondelegation talk’ merit a
systemic revision of U.S. regulatory objectives and structures, they
should be part of serious discussion about regulatory proposals in
Congress, the White House, and broader public discourse. Continuing to
sublimate these concerns in an ultimately unproductive argument about
constitutional first principles disserves us all.”
 In re:
1. Delhi Laws Act, 1912
2. Ajmer-Merwara (Extension of Laws) Act, 1947
3. Part C States (Laws) Act, 1950

1951 SCC 568; Special Reference No. 1 of 1951

(recall Baxi)
Section 7, Delhi Laws Act, 1912

"The Provincial Government may, by notification in the official

gazette, extend with such restrictions and modifications as it thinks
fit to the Province of Delhi or any part thereof, any enactment
which is in force in any part of British India at the date of such
notification.“

Reference: Is section 7 of the Delhi Laws Act, 1912, or any of the

provisions thereof and in what particular or particulars or to what
extent ultra vires the Legislature which passed the said Act?
Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947:

“Extension of Enactments to Ajmer-Merwara. – The Central

Government may, by notification in the official gazette, extend to the
Province of Ajmer-Merwara with such restrictions and modifications
as it thinks fit any enactment which is in force in any other Province at
the date of such notification.”

Reference: Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or

any of the provisions thereof and in what particular or particulars or to
what extend ultra vires the Legislature which passed the said Act?
Section 2 of the Part C States (Laws) Act, 1950:

“Power to extend enactments to certain Part C States. – The Central Government

may, by notification in the official gazette, extend to any Part C State (other than
Coorg and the Andaman and Nicobar Islands) or to any part of such State, with
such restrictions and modifications as it thinks fit, any enactment which is in force
in a part A State at the date of the notification and the provision may be made in
any enactment so extended for the repeal or amendment of any corresponding
law (other than a Central Act) which is for the time being applicable to that Part C
State.”

Reference: Is section 2 of the Part C States (Laws) Act, 1950, or any of the
provisions thereof and in what particular or particulars or to what extend ultra
vires the Parliament?
 Fazl Ali, J. Patanjali S.R. Das, J. B.K. Vivian Bose, Harilal Kania, M.C.
Judges
Sections Sastri, J. Mukherjea, J. C.J. Mahajan, J.
J.

Section 7, upheld upheld upheld upheld Upheld Substantially Substantially

Delhi Laws struck down struck down
Act, 1912

Section 2, upheld upheld upheld upheld Upheld Substantially Substantially

Ajmer- struck down struck down
Merwara
(Extension of
Laws) Act,
1947

Section 2, upheld upheld upheld Struck down Struck down Substantially Substantially
Part C States the second the second struck down struck down
(Laws) Act, part part
1950
Thus, the majority ruling of the Court is that the first two sections are intra vires in
their entirety, while the third section is only partly intra vires.

Let us now examine the opinions thematically and in detail.

The first two impugned sections are intra vires in their entirety (per Fazl Ali,
Patanjali Sastri, S.R. Das, B.K. Mukherjea, and Vivian Bose JJ.)

Fazl Ali, J.

‘The legislature cannot abdicate its legislative functions and it cannot efface itself
and set up a parallel legislature to discharge the primary duty with which it has
been entrusted.’
• This for him in the broad sense is the principle underlying the maxim
delegatus non potest delegare. Both in US and UK:

• Hughes C.J. – ‘ …The Congress manifestly is not permitted to abdicate, or to

transfer to others, the essential legislative functions with which it is thus
vested.’

• Victorian Stevedoring and General Contracting Co. Pty. Ltd. v Dignan – ‘On
final analysis therefore, Parliament of the Commonwealth is not competent to
“abdicate” its powers of legislation. Thus is not because Parliament is bound
to perform any or all of its legislative powers or functions, for it may elect not
to do so; and not because of the doctrine of separation of powers prevents
Parliament from granting authority to other bodies to make laws or bye-laws…
• … and thereby exercise legislative power, for it does so in almost every statute;
but because each and every one of the laws passed by Parliament must answer the
description of a law upon one or more of the subject-matters stated in the
Constitution. A law by which Parliament gave all its law-making authority to
another body would be bad merely because it would fail to pass the test last
mentioned.’

• Lord Haldane in Initiative and Referendum Act, In re:

• ‘No doubt a body, with a power of legislation on the subjects entrusted to it …

could, while preserving its own capacity intact, seek the assistance of subordinate
agencies … but it does not follow that it can create and endow with its own
capacity a new legislative power not created by the Act to which it owes its own
existence.’
After surveying these decisions Fazl Ali, J. states that ‘What
constitutes abdication and what class of cases will be covered by that
expression will always be a question of fact and it is by no means easy
to lay down any comprehensive formula to define it, but it should be
recognised that the rule against abdication does not prohibit the
legislature from employing any subordinate agency of its own choice
for doing such subsidiary acts as may be necessary to make its
legislation effective, useful and complete.’
He then culls down the following principles after looking at Privy
Council decisions:

1. It will not be correct to describe conditional legislation as

legislation through another agency.
2. legislative power could not be said to have been parted with if
the legislature retained its power intact and could whenever it
pleased destroy the agency it had created and set up another or
take the matter directly into its own hands.
3. the question as to the extent to which the aid of subordinate
agencies could be sought by the legislatures and as to how long
they should continue them were matters for each legislature and
not for the court of law to decide.
4. a legislature in committing important regulations to others
does not efface itself.
5. the legislature (like the Governor General-in-Council) could not
by any form of enactment create, and arm with legislative
authority, a new legislative power not created or authorised by
the parent Act (the Councils’ Act) to which it owes its existence.
Final conclusions of Fazl Ali, J.:

1. The legislature must normally discharge its primary legislative function itself
and not through others.
2. Once it is established that it has sovereign powers within a certain sphere, it
must follow as a corollary that it is free to legislate within that sphere in any
way which appears to it to be the best way to give effect to its intention and
policy in making a particular law, and that it may utilise any outside agency
to any extent it finds necessary for doing things which it is unable to do itself
or finds it inconvenient to do. In other words, it can do everything which is
ancillary to and necessary for the full and effective exercise of its power of
legislation.
3. It cannot abdicate its legislative functions, and therefore while entrusting
power to an outside agency, it must see that such agency acts as a
subordinate authority and does not become a parallel legislature.
4. The doctrine of separation of powers and the judicial
interpretation it has received in America ever since the American
Constitution was framed, enables the American courts to check
undue and excessive delegation but the courts of this country
are not committed to that doctrine and cannot apply it in the
same way as it has been applied in America. Therefore, there are
only two main checks in this country on the power of the
legislature to delegate, these being its good sense and the
principle that it should not cross the line beyond which
delegation amounts to “abdication and self-effacement.”.
Coming to the three Acts, he makes the following the three observations:

1. There is no specification in the Act by way of a list or schedule of the laws out
of which the selection is to be made by the Provincial or the Central
Government, as the case may be, but the Government has been given
complete discretion to adopt any law whatsoever passed in any part of the
country, whether by the Central or the Provincial Legislature.
2. The provisions are not confined merely to the laws in existence at the dates of
the enactment of these Acts but extend to future laws also.
3. The Government concerned has been empowered not only to extend or
adopt laws but also to introduce such restrictions and modifications as it
thinks fit; and in the Part C States (Laws) Act, 1950, power has been given to
the Central Government to make a provision in the enactment extended
under the Act for the repeal or amendment of any corresponding law (other
than a Central Act) which is for the time being applicable to the Part C State
concerned.
Ø ‘There can be no doubt that the powers which have been granted to the
Government are very extensive and the three Acts go farther than any Act in
England or America, but in my judgment, notwithstanding the somewhat unusual
features to which reference has been made, the provisions in question cannot be
held to be invalid.’

Ø ‘… The situation with which the respective legislatures were faced when these
Acts were passed, was that there were certain State or States with no local
legislature and a whole bundle of laws had to be enacted for them. It is clear that
the legislatures concerned, before passing the Acts, applied their mind and
decided firstly, that the situation would be met by the adoption of laws applicable
to the other Provinces (as far as requirements were the same) … and secondly, the
matter should be entrusted to an authority which was expected to be familiar and
could easily make itself familiar with the needs and conditions of the States
(concerned).’
‘Thus, every one of the Acts so enacted was a complete law, because it embodies a
policy, defined a standard, and directed the authority chosen to act within certain
prescribed limit and not to go beyond them. Each Act was a complete expression of
the will of the legislature to act in a particular way and of its command as to how
its will should be carried out. … It will be a misnomer to describe such legislation as
amounting to abdication of powers, because from the very nature of the legislation
it is manifest that the legislature had the power at any moment of withdrawing or
altering any power with which the authority chosen was entrusted, and could
repeal the laws which the authority was required to make applicable to the State or
States concerned.’

+ the agency could not enact laws but only apply or extend them. Thus, a
ministerial power because all that the Government had to do was to study the laws
and make selections out of them.
But what about the power of modification – ‘with such modifications as it thinks
fit’?

‘These are not unfamiliar words and they are often used by careful draftsmen to
enable laws which are applicable to one place or object to be so adapted as to
apply to another. The power of introducing necessary restrictions and
modifications is incidental to the power to apply or adapt the law, and in the
context in which the provision as to modification occurs, it cannot bear the sinister
sense attributed to it. The modifications are to be made within the framework of
the Act and they cannot be such as to affect its identity or structure or the
essential purpose to be served by it. The power to modify certainly involves a
discretion to make suitable changes, but it would be useless to give an authority
the power to adapt a law without giving it the power to make suitable changes.
And the power to repeal and/or amend?

‘… No doubt this power is a far-reaching and unusual one, ubt, on a careful

analysis, it will be found to be only a concomitant of the power of transplantation
and modification. If a new law is to be made applicable, it may have to replace
some existing law which may have become out-of-date or ceased to serve any
useful purpose, and the agency which is to apply the new law must be in a position
to say that the old law would cease to apply … the provision has to be upheld,
because though it goes to the farthest limits, it is difficult to hold that it was
beyond the powers of a legislature which is supreme in its own field, and all we can
say is what Lord Hewart said in R. v. Minister of Health … the particular Act may be
regarded as “indicating the high watermark of legislative provisions of this
character”, and that unless the legislature acts with restraint, a stage may be
reached when legislation may amount to abdication of legislative powers.’
Parting note on delegated legislations:

‘This form of legislation has become a present-day necessity, and it has come to
stay – it is both inevitable and indispensable. The legislature has not to make so
many laws that it has no time to devote to all the legislative details, and sometimes
the subject on which it has to legislation is of such a technical nature that all it can
do is to state the broad principles and leave the details to be worked out by those
who are more familiar with the subject. Again, when complex schemes of reform
are to be the subject of legislation, it is difficult to bring out a self-contained and
complete Act straightaway, since it is not possible to foresee all the contingencies
and envisage all the local requirements for which provision is to be made. Thus,
some degree of flexibility becomes necessary, so as to permit constant adaptation
to unknown future conditions without the necessity of having to amend the law
again and again….’
Patanjali Sastri, J.

In 1912, the Indian Legislature was the Governor General-in-Council, and his
law-making powers were derived from Section 22 of the Indian Councils’
Act, 1861.

It conferred power ‘to make laws and regulations for repealing, amending or
altering any laws or regulations whatever now in force or hereafter to be in
force in the Indian territories now under the dominion of Her Majesty and
to make laws and regulations for all persons whether British or native,
foreigners or others, and for all courts of justice whatever and for all places
and things whatever within the said territories’.
These law-making powers of the Governor General-in-Council continues to
remain essentially the same in 1912.

The question then posed was whether Section 7 of the Delhi Laws Act, 1912
within the ambit of the legislative powers conferred on him by Section 22 of
the Indian Councils’ Act, 1861

It was answered in the affirmative as the power was defined in very wide
terms – ‘for all persons and for all places and things whatever’.

NB – what matters is that what the legislature delegates should be

something it itself is empowered to do. It can’t delegate a power it doesn’t
have. This seems to have been the only restriction recognised by Patanjali
Sastri, J.
1. the scope of judicial review in such cases is limited only to determining
whether the impugned enactment is within the law-making power
conferred on the legislature and whether it violates any express
condition limiting that power; and in determining the latter question
the court should regard only to the express conditions and should not
enlarge them inferentially by a process of interpretation
2. it is incorrect that the Indian Legislature is in any sense an agent or
delegate of the Imperial Parliament; and the rule against delegation by
an agent doesn’t apply here.
3. the English doctrine of supremacy within limits applies to the Indian
Legislature which when acting within the limits circumscribing its
legislative power ‘has and was intended to have plenary powers of
legislation as large and of the same nature as those of Parliament
itself.’
 4. Reiterated, that the Governor General-in-Council could not by any
form of enactment, create in India, and arm with general legislative
authority, a new legislative power; not created or authorised by the
Councils’ Act.

‘… in delegated legislation the delegating body does not efface itself but
retains its legislative power intact and merely elects to exercise such power
through an agency or instrumentality of its choice.’
‘… the act done by the authority to which legislative power is delegated
derives its whole force and efficacy from the delegating legislature, that is to
say, when the delegate acts under the delegated authority, it is the
legislature that really acts through its appointed instrumentality. On the
other hand, in the creation of a new legislative body with general legislative
authority and functioning in its own right, there is no delegation of powers
to subordinate units, but a grant of power to an independent and
coordinate body to make laws operating of their own force. In the first case,
according to the English constitutional law, no express provision authorising
delegation is required. In the absence of a constitutional inhibition,
delegation of legislative power, however extensive, could be made so long
as the delegating body retains its own legislative power intact. In the second
case, a positive enabling provision in the constitutional document is
required.’
• ‘”to create in India and arm with general legislative authority a new
legislative power” … seems to envisage the unauthorised creation of a new
legislature with an independent status as a law-making body, which … is
quite different from delegation of legislative power…’

• cites Benoari Lall Sarma: ‘…The true distinction is between the delegation
of power to make the law, which necessarily involves a discretion as to what
it shall be, and conferring authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done, to
the latter no valid objection can be made.’
• ‘… I am of the opinion that Section 7 of the Delhi Laws Act, 1912 fell within
the general scope of the affirmative words of Section 22 of the Indian
Councils’ Act, 1861, which conferred the law-making power on the Governor
General-in-Council…’

• ‘The same approach leads me to the conclusion that Section 2 of the

Ajmer-Merwara (Extension of Laws) Act, 1947, was also constitutional and
valid. This Act was passed by the Dominion Legislature of India, and the
governing constitutional provision was Section 99(1) of the Government of
India Act, 1935 [The material words in Section 99(1) were “may make laws
for the whole or any part of the Dominion”].
• the repeal power under the second part of the third provision was also
upheld: ‘… delegation can as well extend to the power of repeal as to the
power of modification and the Court cannot hold such delegation to be ultra
vires.’

• ‘… the courts in (India) cannot strike down an Act of Parliament as

unconstitutional merely because Parliament decides in a particular instance
to entrust its legislative power to another in whom it has confidence, or, in
other words, to exercise such power through its appointed instrumentality,
however repugnant such entrustment may be to the democratic process.
What may be regarded as politically undesirable is constitutionally
competent.’
S.R. Das, J.

• Like Fazl Ali, J., he also cites the American cases to show that the
doctrine is not as rigid as it appears. Gives in to the necessities of
practical government.

• ‘… [The American courts], however, soon realised that the necessities of

practical government required delegation of legislative powers to the
President or other persons or bodies but such was the fear in the minds
of the American people of the tyranny that may result from the
concentration of power in despotic hands that the American Judges and
jurists felt bound to uphold, in theory, the sanctity of the doctrine against
delegation while, in practice, to permit large delegations of legislative
powers on the pretence that the power delegated was not really
legislative power.’
‘Thus the doctrine against delegation came to be confined to “strictly and
exclusively” (per Marshall, C.J.) or “purely” (per Day, J.) or “essential” (per
Hughes, C.J.) legislative power and the rest of the content of the legislative
power were permitted to be delegated under the pretence that they were
not really legislative power but were only power “to fill up the details” (per
Marshall, C.J.), or “to ascertain and declare facts” (per Harlan, J.), or were
only “administrative powers to make rules and regulations” (per Lamar, J.
and Hughes, C.J.)’
‘It cannot be denied that the functions so permitted to be delegated
could be performed by the legislature itself and that when so
performed such performance would only be the exercise of legislative
power. The functions which, when exercised by the legislature are
legislative powers, cannot cease to be so when performed by the
person to whom it is entrusted by the legislature. By delegation the
legislative power cannot become transmuted into executive power. It is
due to the anxiety of the American courts to reconcile the doctrine
against delegation with the practical necessities of government that
they have had to take recourse to such verbal subterfuge.’ In point of
fact, the content of the doctrine has been shrinking fast and although
the American Judges and jurists do not openly acknowledge it,
Congress has been exercising the power of delegation of legislative
power in an ever-increasing measure…’
• ‘The net result is that even in the land of separation of powers all that
now remains of the doctrine is simply that the legislature itself must lay
down the policy (per Hughes, C.J.) or fix a primary standard (per
Sutherland, J.)…’

• The rule in British inspired constitutions and legal systems has been that
‘…short of self effacement the legislature can freely delegate its legislative
power. As long as the legislature retains its own power of control, there
can be no objection to delegation, for if the delegate does anything foolish
or wrong the same may at once be put right by the legislature by removing
the delegate and appointing another in his place or taking up the matter in
its own hands…’

• also reiterated, need to preserve its own capacity intact and cannot
create and endow with its own capacity a new legislative power not
created by the Act
• ‘The reported decisions to which reference has been made above
clearly establish that short of such abdication or effacement the
legislature may freely delegate its legislative powers and it is not
for the Court to decide how much authority should be delegated
or for how long such delegation should continue. I also agree that
the law made by the legislature must be within the ambit of its
legislative power and it cannot go beyond that ambit..’

• ‘…In my opinion, the power to make law with respect to a subject

includes the power to make a law delegating the power to make a
law with respect to that subject…’
Final conclusions culled out:

1. a legislature established by or under an Act of the British Parliament is

in no sense an agent or delegate of the British Parliament;
2. the power of such a legislature is circumscribed by the Act by which it
is constituted, and the legislature cannot go beyond it but within its
ambit it is supreme, and its power is as large and of the same nature
as that of the British Parliament;
3. the principle of non-delegation, founded either on the doctrine of
separation of power or on the theory of agency, has no application to
the British Parliament or the legislatures constituted by an Act of the
British Parliament.
4. in the ever-present complexity of the conditions with which
Governments have to deal, the power of delegation is necessary for
and ancillary to the exercise of legislative power and is a component
part of its content;
5. the operation of the act performed under the delegated power is
directly and immediately under and by virtue of the law by which the
power was delegated and its efficacy is referable to that antecedent law
6. if what the legislature does is legislation within the general scope of the
affirmative words which give the power, and if it violates no express
condition or restriction by which that power is limited, then it is not for
the court to enquire further or to enlarge constructively those
conditions or restrictions’
7. while the legislature is acting within its prescribed sphere
there is, except as hereinafter stated, no degree of or limit to
its power of delegation of its legislative power, it being for the
legislature to determine how far it should seek the aid of
subordinate agencies and how long it shall continue them
and it is not for the court to prescribe any limit to the
legislature’s power of delegation’ and

8. the power of delegation is, however, subject only to the

qualification that the legislature may not abdicate or efface
itself, that is to say, may not, without preserving its own
capacity intact, create and endow with its own capacity a
new legislative power not created or authorised by the Act to
which it owes its own existence.
Section7, Delhi Laws Act: valid

• clear legislative policy and application of mind – other laws in operation

are more or less suitable, but discretion to the executive to finetune the
choice
• the legislature has not effaced itself or destroyed its own capacity or set
up and arm with its own capacity a new legislative power. It could always
withdraw the matter into its own hand.
• the Governor General-in-Council had the legislative capacity to enact the
Delhi Laws Act by virtue of Section 22 of the Councils’ Act 1861.
Section 2, Ajmer-Merwara (Extension of Laws) Act, 1947: valid

• no effacement
• power to make laws includes the power to delegate
• delegation within the ambit of the original power

Section 2, Part C States (Laws) Act, 1950: valid entirely

• the only difference from the other two impugned provisions is the
additional power given to the CG to repeal or amend any corresponding
law in force in a State while applying it to a Part C State.
• power of delegation inherent in law-making power; and this comes under
entry 97 of Union List (residuary) – ie to make a law with respect to the
delegation of its legislative power
‘Parliament has, as regards the second part of the section, also applied its
mind and decided that it is expedient to enable the Central Government not
to make what law it pleases, but to apply, by notification, to a Part C State
the laws which were or may be in force in a Part A State and also that such
law having been enacted by a competent legislature will be such that it may
be fit and proper to apply to any of these Part C States but as such a law
may be inconsistent with a similar law already in force in such State it will be
necessary and desirable to repeal or amend the last mentioned law so as to
enable the more suitable law to be extended and applied to such State and
that it is, therefore, expedient, on that point also, to entrust a discretion to
the Central Government to repeal or amend the law in force.’
Fazl Ali, Patanjali Sastri, and S.R. Das JJ, uphold the vires of the first two
provisions and to that extent join the majority. But the low threshold of
invoking the nondelegation doctrine laid down by them also enables
them to uphold the vires of the third impugned provision in its entirety.
On that count they join the minority.
On the Ajmer-Merwara (Extension of Laws) Act, 1947, Section 2: same grounds
as existing for section 7 of the Delhi Laws Act

On Section 2 of the Part C States (Laws) Act, 1950:

‘… the powers conferred by this section upon the Central government are far in
excess of those conferred by the other two legislative provisions … it is quite an
intelligible policy that so long as a proper legislative machinery is not set up in a
particular area, Parliament might empower an executive authority to introduce
laws validly passed by a competent legislature and actually in force in other parts
of the country to such area, with such modifications … But this presupposes that
there is no existing law on that particular subject actually in force in that
territory. If any such law exists and power is given to repeal or abrogate … it
would certainly amount to an unwarrantable delegation of legislative powers’
‘To repeal or abrogate an existing law is the exercise of an essential
legislative power, and the policy behind such acts must be the policy of the
legislature itself. If the legislature invests the executive with the power to
determine as to which of the laws in force in a particular territory are
useful or proper and if it is given to that authority to replace any of them
by laws brought from other provinces with such modifications as it thinks
proper, that would be to invest the executive with the determination of the
entire legislative policy and not merely of carrying out a policy which the
legislature has already laid down.’
‘Thus the power of extension, which is contemplated by Section 2 of the
Part C States (Laws) Act, includes the power of introducing laws which may
be in actual conflict ith the laws validly established and already in operation
in that territory. This shows how the practice, which was adopted during
the early British period as an expedient and possibly harmless measure
with the object of providing laws for a newly acquired territory or
backward area till it grew up into a full-fledged administrative and political
unit, is being resorted to in later times for no other purpose than that of
vesting almost unrestricted legislative powers with regard to certain areas
in the executive government. The executive government is given the
authority to alter, repeal or amend any laws in existence at that area under
guise of bringing in laws there which are valid in other parts of India.’
So:
1. Sect 7 of the Delhi Laws Act 1912 valid entirely
2. Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 valid
entirely
3. Section 2 of the Part C States (Laws) Act, 1950 is ultra vires to the
extent that it empowers the Central Government to extend to Part C
States laws which are in force in Part A States, even though such laws
might conflict with or affect laws already in existence in the area to
which they are extended. The power given by the last portion of the
section to make provisions in any extended enactment for the repeal or
amendment of any corresponding provincial law, which is for the time
being applicable to that Part C State, is, therefore, illegal and ultra vires.
On Section 2, Part C States (Laws) Act, 1950: reasoning same for the first part.
‘My conclusion is that the Indian Parliament can … leave to another person or
body the introduction or application of laws which are or may be in existence at
that time in any part of India which is subject to the legislative control of
Parliament, whether those laws were enacted by Parliament or by a State
Legislature set up by the CoIt has weighty reasons of a practical nature to support
it and it does not seem to have been abrogated by the Constitutionnstitution.
That has been the practice in the past..
But I also consider that delegation of this kind cannot proceed beyond that and
that it cannot extend to the repealing or altering in essential particulars of laws
which are already in force in the area in question. That is a matter which
Parliament alone can handle.’
‘I see no reason for extending the scope of legislative delegation beyond the confines
which have been hallowed for so long. Had it not been for the fact that this sort of
practice was blessed by the Privy Council as far back as 1878 and has been endorses in a
series of decisions ever since, and had it not been for the practical necessities of the
case, I would have held all three Acts ultra vires. But, so far as the latter portion of the
third Act is concerned, no case was cited in which the right to repeal the existing laws of
the land and substitute others for them has been upheld … It is one thing to fill a void or
partial vacuum. Quite another to throw out existing laws enacted by a competent
authority. It is bad enough to my mind to hold that the first is not a delegation of
legislative power. But as that has been held by an authority which it is impossible now to
question so far as the past is concerned, I bow to its wisdom. But as to the future, I feel
that a body which has been entrusted with the powers of legislation should legislate and
not leave the decision of important matters of principle to other minds.’
Then he notes that from the precedents two different kinds of principles emerge:

1. One permits very wide powers of delegation for sound and practical reasons…; and
2. the other holds that new legislative bodies cannot be set up by fettered legislatures
like ours, and as a corollary to that, that essentially law-making powers cannot be
transferred.

He says these are both sound principles but both can’t logically co-exist. So he gives a
middle path: ‘…when Parliament has been entrusted by the Constitution with the right to
enact a particular kind of legislation (on FRs, as an example he gives – fix a max period of
detention under Art 22(7)(b), for instance), as opposed to legislating generally on a
particular topic, there can be no delegation.’
‘I confess I am not enamoured of this kind of legislation. I do not like this
shirking of responsibility, for, after all, the main function of a legislature is to
legislate and not to leave that to others. Its primary duty is to weigh and
consider the desirability or otherwise both of introducing new laws and of
abolishing or modifying old ones in essential particulars. But, speaking
judicially, I am unable to hold, in view of our past history and in view of the
necessities of a modern State, that the matters I have set out above, subject
to the limitations I have indicated, are beyond the competence of
Parliament. I trust however, that these powers will be used sparingly both
on grounds of principle as well as of practical expediency, for the experience
of this case and the lessons of the past show only too clearly the risks
involved…’
So, the first two provisions are upheld, albeit reluctantly; the second part of
the third provision is struck down.

‘My answers are, however, subject to this qualification. The power to

“restrict and modify” does not import the power to make essential changes.
It is confined to alterations of a minor character such as are necessary to
make an Act intended for one area applicable to another and to bring it into
harmony with laws already in being in the State, or to delete portions which
are meant solely for another area. To alter the essential character of an Act
or to change it in material particulars is to legislate, and that, namely, the
power to legislate, all authorities are agreed, cannot be delegated by a
legislature which is not unfettered.’
Harilal Kania, C.J.
(substantially striking down all the three provisions)

‘… When a legislative body passes an Act it has exercised its legislative

function. The essentials of such function are the determination of the
legislative policy and its formulation as a rule of conduct. These essentials
are the characteristics of a legislature by itself … Those essentials are
preserved, when the legislature specifies the basic conclusions of fact, upon
ascertainment of which, from relevant data, by a designated administrative
agency, it ordains that its statutory command is to be effective. The
legislature having thus made its laws, it is clear that every detail for working
it out and for carrying the enactments into operation and effect may be
done by the legislature or may be left to another subordinate agency or to
some executive officer…
…While this also is sometimes described as a delegation of
legislative powers, in essence it is different from delegation
of legislative power which means a determination of the
legislative policy and formulation of the same as a rule of
conduct. I find that the word ‘delegation’ is quite often used
without bearing this fundamental distinction in mind. While
the so-called delegation, which empowers the making of
rules and regulations, has been recognised as ancillary to the
power to define legislative policy and formulate the rule of
conduct, the important question raised by the Attorney
General is in respect of the right of the legislature to
delegate the legislative functions strictly so called.’
He then analyses cases decided by the Privy Council, the Supreme
Courts of Canada and Australia to conclude the principle:

‘… while a legislature, as part of its legislative functions, can confer

powers to make rules and regulations for carrying the enactment
into operation and effect, and while a legislature has power to lay
down the policy and principles providing the rule of conduct, and
while it may further provide that on certain data or facts being
found and ascertained by an executive authority, the operation of
the Act can be extended to certain areas or may be brought into
force on such determination which is described as conditional
legislation, the power to delegate legislative functions generally is
not warranted under the Constitution of India at any stage…’
• ‘… therefore, the contention urged by the learned Attorney General that
legislative power carries with it a general power to delegate legislative
functions, so that the legislature may not define its policy at all and may
lay down no rule of conduct but that whole thing may be left either to
the executive authority or administrative or other body, is unsound and
not supported by the authorities on which he relies…’

• ‘I don’t think that apart form the sovereign character of the British
Parliament which is established as a matter of convention and whose
powers are also therefore absolute and unlimited, in any legislature of
any other country such powers of delegation as claimed by the Attorney
General for a legislature, have been recognised or permitted.’
On abdication-effacement:

‘It was contended by the learned Attorney General that

under the power of delegation the legislative body cannot
abdicate or efface itself. That was its limit. It was argued
that so long as the legislature had power to control the
actions of the body to which power was delegated, that so
long as the actions of such body were capable of being
revoked there was no abdication or effacement … I do not
think that … up to that limit legislative delegation [is]
permitted…’
• ‘…Every power given to a delegate can be normally called back.
There can hardly be a case where this cannot be done because the
legislative body which confers power on the delegate has always
the power to revoke that authority and it appears difficult to
visualise a situation in which such power can be irrevocably lost …
Therefore, to say that the true test of effacement is that the
authority which confers power on the subordinate body should not
be able to withdraw the power appears to be meaningless. In my
opinion, therefore the question whether there is “abdication” and
“effacement” or not has to be decided on the meaning of the words
used in the instrument by which the power is conferred on the
authority.’

• ‘…Abdication by a legislative body need not necessarily amount to

a complete effacement of it. Abdication may be partial or complete…
… When in respect of a subject in the Legislative List the
legislature says that it shall not legislate on that subject but
would leave it to somebody else to legislate on it, why does
it not amount to abdication or effacement? If full powers to
do anything and everything which the legislature can do are
conferred on the subordinate authority, although the
legislature has power to control the action of the
subordinate authority, by recalling such power or repealing
the Acts passed by the subordinate authority, the power
conferred by the instrument in my opinion, amounts to an
abdication or effacement of the legislature conferring the
such power’
• ‘… It has been pointed out that under the powers conferred by
the Delhi Laws Act, the Central Government has extended the
application of the Bombay Debtors’ Relief Act to Delhi. The Bombay
Act limits its application to poor agriculturists whose agricultural
income is less than Rs. 500. Under the power of modification
conferred on it by the Delhi Laws Act, the Central Government has
removed this limit on the income, with the result that the
principles, policy and machinery to give relief to poor peasants or
agriculturists with an income of less than Rs. 500 is made
applicable in Delhi to big landowners even with an income of 20
lakhs! This shows how the word “modification” is understood and
applied by the Central Government and acquiesced in by the Indian
Legislature. I do not think such power of modification as actually
exercised by the Central Government is permitted in law…
… If power of modification so understood is permitted, it
will be open to the Central Legislature in effect to change
the whole basis of the legislation and the reason for
making the law. That will be a complete delegation of
legislative power, because in the event of the exercise of
the power in that manner the Indian Legislature has not
applied its mind either to the policy under which relief
should be given nor the class of persons, nor the
circumstances, nor the machinery by which relief is to be
given…’
Thus:

‘… the power of delegation, in the sense of the legislature conferring

power, on either the executive government or another authority, “to
lay down the policy underlying a rule of conduct” is not permitted.’

reiterates the Article 22(7) example: ‘… it appears to me a violation of

the provisions of this article on fundamental rights to suggest that
Parliament having the power to make a legislation within the terms of
Article 22(7) has the power to delegate that right in favour of the
executive government. In my opinion, therefore the argument that
under the Constitution of 1950 the power of legislation carries with it
the power of delegation, in the larger sense, as contended by the
Attorney General cannot be accepted.’
• Recall S.R. Das, J.

• ‘… I do not read Articles 245 and 246 as covering the question of

delegation of legislative powers. In my opinion, on a true
construction of Articles 245, 246 and the Lists in the Seventh
Schedule, construed in the light of the judicial decisions
mentioned above, legislation delegating legislative powers on
some other bodies is not a law on any of the subjects or entries
mentioned in the Legislative Lists. It amounts to a law which states
that instead of the legislature passing laws on any subject covered
by the entries, it confers on the body mentioned in the legislation
the power to law down the policy of the law and make a rule of
conduct binding on the persons covered by the law.’
M.C. Mahajan, J.
(striking down all the three impugned provisions)

‘It was suggested (by the Attorney General) that the

true nature and scope of the legislative power of
Parliament involves as part of its content power to
confer law-making powers upon authorities other than
Parliament itself and this is a natural consequence of
the doctrine of the supremacy of Parliament. It was
said that the Indian Legislature when acting within the
ambit of its legislative power has plenary powers of
legislation as large and of the same nature as the British
Parliament and unless the prescribed limits are
exceeded, no question of ultra vires can possibly
arise…’
He quotes from the IA carrying the AG’s
submissions:

‘Look at the terms of the instrument by which

affirmatively the legislative powers are created
and by which negatively they are restricted. If
what has been done is legislation within the
general scope of the affirmative words which give
the power and if it violates no express condition or
restriction by which the power is limited, it is not
for any court of justice to inquire or to enlarge
constructively those conditions and restrictions.’
(IA 193-94).
• ‘It may, however, be observed that in spite of the widest powers
possessed by the British Parliament, it has adopted a policy of self-
abnegation in the matter of delegated legislation. A committee was
appointed to report on the Ministers’ powers, popularly known as
the Donoughmore Committee. It made its recommendations and
stated the limits within which power of delegated legislation should
be exercised. Means were later on adopted for keeping a watchful
eye on such legislation.’ The Committee also discovered a few
instances of Henry-VIII clauses and made the following
recommendation:

• “The use of the so-called Henry VIII clause conferring power on a

Minister to modify the provisions of Acts of Parliaments (hitherto
limited to such amendments as may appear to him to be necessary
for the purpose of bringing the statute into operation) should be
abandoned in all but most exceptional cases and should not be
permitted by Parliament except …
… upon special grounds stated in a ministerial
memorandum to the Bill. Henry VIII clause should never
be used except for the sole purpose of bringing the Act
into operation but subject to the limit of one year.”

‘The language in which this recommendation is couched

clearly indicates that even in a country where Parliament
is supreme the power of modifying parliamentary
statutes has never been exercised except in the manner
indicated in the above recommendation, and even as
regards that limited power the recommendation was that
the exercise of it should be abandoned…’
• ‘… Power of amending a statute or altering it cannot be
described as ancillary to legislation, nor is such a power within
the ambit of the doctrine of subsidiary legislation…’

• On the abdication/self-effacement equivalence:

• ‘…But when learned Judges proceed to lay down the rule that in
the absence of any limitations in the Constitution Parliament can
delegate the power to amend and repeal laws made by itself to
an external authority unless it amounts to an abdication of its
functions does not in my humble opinion seem to be sound. In
the first instance, these observations seem inconsistent with the
fundamental proposition that a duty entrusted to a particular
body of persons and which is to be performed according to
certain procedure by that body cannot be entrusted to an
external agency which is not controlled…
… by any rules of procedure in the performance of that duty and
which would never have been entrusted to perform it. Moreover,
abdication by a legislative body need not necessarily amount to
a complete effacement of it. Abdication may be partial or
complete. It would certainly amount to abdication when in
respect of a subject of legislative list that body says it shall not
legislate on that subject would leave it to somebody else to
legislate on it. That would be delegation of the law-making power
which is not authorised. There is no justification for the
assumption that the expression “abdication” is only applicable
when there is a total effacement or a legal extinction of such a
body. In my opinion, it is the abdication of the power to legislate
when a legislature refuses to perform its duty of legislating on a
particular subject and entrusts somebody else to perform that
function for it.
• reliance on Panama and Ryan to say that ‘[T]hese
decisions seem to indicate that judicial opinion in
America is against delegation of essential powers of
legislation by the Congress to administrative bodies or
even to independent commissions.’ (contrast with S.R.
Das, J’s opinion)

• ‘On one point, however, there is uniformity of judicial

decisions in the American courts and even amongst
the textbook writers. Delegation of general power to
make and repeal laws has uniformly been held as
unconstitutional…’
• ‘In my opinion, the true solution of the problem of
delegation of legislative power is to be found in the oft-
quoted passage from the judgment of Ranney, J. of the
Supreme Court of Ohio in Cincinnati W. & Z.R. Co. v
Clinton County Commissioners, (1852) 1 Ohio St 88. The
quotation is in these terms

“The true distinction is between the delegation of

power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring
authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be
made”.’
• Section 7, Delhi Laws Act, 1912: ‘The section gives a carte
balance to the Governor General to extend to the newly formed
province any enactment in force in any part of British India at the
date of the notification and not necessarily any enactment in
force in British India at the date of the passing of the Delhi Laws
Act. No schedule was annexed to the Act of the enactments that
were in force in any part in British India at the date of the
passing of the Act. As regards the enactments that may be in
force in any part of British India at the date of any notification,
there was no knowing what those laws could be. Laws that were
to be made after 1912, their principle and policy could not be
known to the legislature that enacted Section 7 of the Delhi Laws
Act. It seems obvious that the legislature could not have
exercised its judgment, nor its discretion in respect of those
laws.’

• ‘vague, wide, vagrant and uncanalized authority on the

Governor General’
• ‘Illustratively, it may be pointed out that numerous rent control
Acts have been passed by different legislatures in India, laying
down basically different policies and principles. The Provincial
Government under the Delhi Laws Act is authorised to apply the
policy of any one of these Acts to Delhi or the policy which it
might evolve by combining different such statutes passed by
different State Legislatures. Legislative policy in the matter of
rent control had not been evolved by the year 1912. Another
illustration may be taken from the law of prohibition. Different
State Governments have adopted a policy of either complete
prohibition or of local option. What policy is to be applied to
Delhi and who is to decide that policy? Obviously, under Section
7 the Provincial Government can without going to the legislature
adopt the policy it likes, whether of partial or of complete
prohibition and may apply to Delhi any law it thinks fit.’
• ‘It is obvious therefore that within the wide charter of delegated
power given to the executive by Section 7 of the Delhi Laws Act it
could exercise essential legislative functions and in effect it became
the legislature for Delhi. It seems to me that by enacting Section
the legislature virtually abdicated its legislative power in favour of
the executive…’

• ‘… If any list of the existing laws passed by the Governor General-

in-Council in his legislative capacity and of laws adopted by it
though passed by other legislatures was annexed to the Act, to that
extent the delegation of power but without any power of
modification in favour of the executive might have been valid, but
that is not what was enacted in Section 7 of the Delhi Laws Act …’

• Struck down; same for the second provision:

• ‘the section does not declare any law but gives the Central
Government power to declare what the law shall be. The choice to
select any enactment in force in any province at the date of such
notification clearly shows that the legislature declared no
principles or policies as regards the law to be made on any
subject…’

• Example: ‘The Bombay Agricultural Debtors Relief Act, 1947 has

been extended under cover of this section to Ajmer-Merwara and
under the power of modification by amending the definition of the
word “debtor” the whole policy of the Bombay Act has been
altered. Under the Bombay Act a person is a debtor who is
indebted and whose annual income from sources other than
agricultural and mainly labour does not exceed 33% of his total
annual income or does not exceed Rs. 500 whichever is greater. In
the modified statute “debtor” means an agriculturalist who owes a
debt, and “agriculturalist” means a person who earns his
livelihood by agriculture and whose income…’
• … from such source exceeds 66% of his total income. The outside
limit of 500 is removed. The exercise of this power amounts to
making a new law by a body which was not in the contemplation of
the Constitution and was not authorised to enact any laws.’

• ‘Shortly stated, the question is, could the Indian Legislature under
the 1935 Act enact that the executive could extent Delhi laws that
may be made hereinafter by a legislature in Timbuctoo or Soviet
Russia with modifications. The answer would be in the negative
because the policy of those laws could never be determined by the
law-making body entrusted with making laws for Delhi. The
Provincial Legislatures in India under the Constitution Act, 1935 qua
Delhi constitutionally stood on no better footing than the
legislatures of Timbuctoo and Soviet Russia though geographically
and politically there were in a different situation’.
• On Section 2, Part C States (Laws) Act 1950:

• ‘For reasons given for answering Questions 1 and 2 that

the enactments mentioned therein are ultra vires the
Constitution in the particulars stated, this question is also
answered similarly. It might, however, be observed that in
this case express power to repeal or amend laws already
applicable in Part C States has been conferred on the
Central Government. Power to repeal or amend laws is a
power which can only be exercised by an authority that
has the power to enact laws. It is a power coordinate and
co-extensive with the power of the legislature itself. In
bestowing on the Central Government and clothing it with
the same capacity as is possessed by the legislature itself
Parliament has acted unconstitutionally.’
• ‘In offering my opinion on the questions mentioned
in the reference I have approached this matter with
great caution and patient attention and having in
mind the rule that the benefit of reasonable doubt
on questions on the constitutional validity of a
statute has to be resolved in favour of legislative
action. The legislative action, however, in the
enactments which are the subject-matter of the
reference has been of such a drastic and wide and
indefinite nature considered in its full amplitude
that it is not possible to hold that in every particular
these enactments are constitutional.’
Henry VIII
Clauses
House of Lords Select Committee on the Constitution, 16th
Report of Session 2017-19, ‘The Legislative Process: The
Delegation of Powers’

‘”Henry VIII clauses” are clauses in a bill that enable ministers

to amend or repeal provisions in an Act of Parliament using
secondary legislation. As secondary legislation is subject to a
lesser degree of scrutiny than primary legislation, Henry VIII
clauses are a significant form of delegated power.’
‘Elizabeth Gardiner, First Parliamentary Counsel, said that
there was “a range of situations where it might be entirely
sensible to take a Henry VIII power where it is not sensible to
come back and expect Parliament to spend time on the sorts
of amendments that you might want to make.” She gave as an
example a consequential amendment power at the back of a
bill where some tidying up might be required, such as
amending references across the statute book to a body whose
name has been changed: “So these are not substantive new
policies but powers that are just needed to tidy up.”’.

‘However, the Bingham Centre stated that “Henry VIII clauses

should be recognised as constitutionally anomalous”; they
were acceptable “only where there is an exceptional
justification and no other realistic way of ensuring effective
governance.”’.
Committee recommends:

‘Henry VIII clauses are “a departure from

constitutional principle. Departures from
constitutional principle should be
contemplated only where a full and clear
explanation and justification is provided.”
Such justification should set out the specific
purpose that the Henry VIII power is designed
to serve and how the power will be used.
Widely drawn delegations of legislative
authority cannot be justified solely by the
need for speed and flexibility.’
Prof. Alison Young, ‘Henry VIII Powers’

‘”Henry VIII powers” potentially undermine legislation. They empower

ministers to enact measures — delegated legislation — which can modify,
amend or even repeal Acts of Parliament. Delegated legislation is subject to
less democratic scrutiny than primary legislation which goes through
multiple stages in the Commons and the Lords and can be amended. Most
delegated legislation becomes law unless Parliament votes against it
coming into force: the negative resolution procedure. Some delegated
legislation requires Parliament to vote in favour of its provisions: the
affirmative resolution procedure. As we have seen with the recent Health
Protection Regulations to tackle the pandemic, delegated legislation may
need only to be presented to Parliament, not even requiring a vote, and can
even come into force before being shown to Parliament.’
• ‘As their name suggests, Henry VIII powers are nothing new. However, governments have
used them more often recently, arguing these powers are needed to deal with urgent
issues, or when so much legislation is required that there is insufficient time for it to be
enacted by Parliament by the primary
• route.’

• ‘Henry VIII powers erode parliamentary sovereignty, as ministers can use them to override
the will of Parliament. Whilst you might argue that this is unproblematic, as Parliament
enacted legislation that included the power in the first place, they undermine democracy
and parliamentary accountability.
• Even when Parliament has to approve delegated legislation, it only has a veto. It cannot
propose amendments, and democratic scrutiny is reduced further if these measures are put
through the negative resolution procedure. How can the Government be accountable to
Parliament if ministers can overturn legislation without full parliamentary scrutiny?’
• ‘Recent legislation surrounding Brexit includes a plethora of
Henry VIII clauses. The hastily enacted European Union
(Future Relationship) Act 2020 contains six specific Henry VIII
powers, as does the UK Internal Market Act 2020. The most
controversial Henry VIII clause included in the original Internal
Market Bill — the power to enact measures which
contravened domestic and international law — was dropped
by the Government. Section 56(2), however remains. This
enables ministers to use any of the law-making powers found
in the Act to modify legislation.’
• ‘Some of these powers are incredibly broad. Section 41 of the
European Union (Withdrawal Agreement) Act 2020 empowers a
minister to ‘make such provision as the minister considers appropriate
in consequence of this Act’, including using this to overturn legislation
enacted before transition ended on 31 December 2020. Section 31 of
the European Union (Future Relationship) Act 2020 includes a power to
make regulations a national authority considers appropriate to
implement the Agreement, requiring only a negative resolution. Section
39 empowers a minister of the Crown to ‘make such provision as the
minister considers appropriate in consequence of this Act’, including
modifying legislation, although an affirmative resolution is required.’
• ‘… it may be that, with a growing use of Henry VIII powers, courts will use
the prorogation case, in which the Supreme Court recognised parliamentary
accountability as a fundamental constitutional principle. If Henry VIII powers
are used to undermine key principles of the constitution, or make sweeping
constitutional changes, courts are likely to quash them, being beyond the
scope of the minister’s powers.’

• ‘Henry VIII powers strengthen the Government and weaken Parliament.

Their use should be restricted to when they are strictly necessary. They should
never be subject to the negative resolution procedure. Moreover, Parliament
should be able to amend as well approve delegated legislation modifying Acts
of Parliament. Only time will tell whether, when the need for expedient
legislation subsides, they will only be used as a last resort.’
Examples of NRPs
The National Anti-Doping Act, 2022

Section 32 (Rules and Regulations to be laid before the Parliament): "Every rule and
regulation made under this Act shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in session for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or regulation, or
both Houses agree that the rule or regulation should not be made, the rule or
regulation shall thereafter have effect only in such modified form or be of no effect,
as the case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule or
regulation"
The Criminal Procedure (Identification) Act, 2022

Section 8(3) (Power to Make Rules): "Every rule made by the Central
Government under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or two or more successive
sessions, and if, before the expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses agree in making
any modification in the rule or both Houses agree that the rule should not
be made, the rule shall thereafter have effect only in such modified form
or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything
previously done under that rule."
Jalan Trading Company Private Ltd v Mill Mazdoor Sabha, AIR 1967 SC 691

Payment of Bonus Act, 1965, Section 37 – CG empowered to, by order, make

provisions not inconsistent with the purpose of the Act for removing
difficulties

‘… Section 37 which authorises the Central Government to provide by order for

removal of doubts or difficulties in giving effect to the provisions of the Act, in
our judgment, delegates legislative power which is not permissible. Condition
of the applicability of Section 37 is the arising of the doubt or difficulty is giving
effect to the provisions of the Act. By providing that the order made must not
be inconsistent with the purposes of the Act, Section 37 is not saved from the
vice of delegation of legislative authority. The section authorises the
Government to determine for itself what the purposes of the Act are and to
make provisions for removal of doubts or difficulties…
… If in giving effect to the provisions of the Act any doubt or
difficulty arises, normally it is for the legislature to remove that
doubt or difficulty. Power to remove the doubt or difficulty by
altering the provisions of the Act would in substance amount to
the exercise of legislative authority and that cannot be
delegated to an executive authority. Sub-section(2) of Section
37 which purports to make the order of the Central
Government in such cases final accentuates the vice in sub-
section (1), since by enacting that provision the Government is
made the sole judge …’
Gwalior Rayon Sil Mfg. (WVG.) Co. Ltd. v Assistant Commissioner of Sales Tax
and Others, (1974) 4 SCC 98

Section 8, Central Sales Tax Act, 1956:

(1) Every Dealer, who in the course of inter-State trade or commerce –
(a) sells to the Government any goods; or
(b) sells to a registered dealer other than the Government goods of the
description referred to in sub-section (3);
shall be liable to pay tax under this Act, which shall be three per cent of his
turnover
(2) The tax payable by any dealer on his turnover in so far as the
turnover or any part thereof relates to the sale of goods in the
course of inter-State trade or commerce not falling within sub-
section (1) –
(a) in the case of declared goods, shall be calculated at the rate
applicable to the sale or purchase of such goods inside the
appropriate State; and
(b) in the case of goods other than declared goods, shall be
calculated at the rate of ten per cent or at the rate applicable to
the sale or purchase of such goods inside the appropriate State,
whichever is higher;
and for the purpose of making any such calculation any such dealer
shall be deemed to be a dealer liable to pay tax under the sales tax
law of the appropriate State, notwithstanding that he, in fact, may
not be so liable under that law
The appellants argued that ‘the fixation of rate of tax is a legislative function
and as the Parliament has, under Section 8(2)(b) of the Act, not fixed the rate
of central sales tax but has adopted the rate applicable to the sale or purchase
of goods inside the appropriate State in case such rate exceeds 10 per cent,
the Parliament has abdicated its legislative function…’

Khanna, Alagiriswami, and Bhagwati, JJ.:

‘… a clear legislative policy can be found in the provisions of Section 8(2)(b) of

the Act. The policy of the law in this respect is that in case the rate of local
sales tax be less than 10 per cent, in such an event the dealer, if the case does
not fall within Section 8(1) of the Act, should pay central sales tax at the rate
of 10 per cent. If, however, the rate of local sales tax for the goods concerned
be more than 10 per cent, in that event the policy is that the rate of the
central sales tax…
…shall also be the same as that of the local sales tax for the said goods.
The object of law thus is that the rate of the central sales tax shall in no
event be less than the rate of local sales tax for the goods in question
though it may exceed the local rate in case that rate be less than 10 per
cent. For example, if the local rate of tax in the appropriate State for the
non-declared goods be 6 per cent, in such an event a dealer, whose case
is not covered by Section 8(1) of the Act, would have to pay central sales
tax at a rate of 10 per cent. In case, however, the rate of local sales tax
for such goods be 12 per cent, the rate of central sales tax would also be
12 per cent because otherwise, if the rate of central sales tax were only
10 per cent, the unregistered dealer who purchases goods in the course
of inter-State trade would be in a better position than an intra-State
purchaser and there would be no disincentive to the dealers to desist
from selling goods to unregistered purchasers in the course of interstate
trade. The object of the law apparently is to deter inter-State sales to
unregistered dealers as such inter-State sales would facilitate evasion
of tax….
…It is also not possible to fix the maximum rate under Section
8(2)(b) because the rate of local sales tax varies from State to State.
The rate of local sales tax can also be changed by the State
Legislatures from time to time. It is not within the competence of
the Parliament to fix the maximum rate of local sales tax. The
fixation of the rate of local sales tax is essentially a matter for the
State Legislatures and the Parliament does not have any control in
the matter. The Parliament has therefore necessarily, if it wants to
prevent evasion of payment of central sales tax, to tack the rate of
such tax with that of local sales tax, in case the rate of local sales tax
exceeds a particular limit.’
‘The adoption of the rate of local sales tax for the purpose of the central sales
tax as applicable in a particular State does not show that the Parliament has in
any way abdicated its legislative function. Where a law of Parliament provides
that the rate of central sales tax should be 10 per cent or that of the local sales
tax, whichever be higher, a definite legislative policy can be discerned in such a
law, the policy being that the rate of central sales tax should in no event be
less than the rate of local sales tax. In such a case, it is, as already stated
above, not possible to mention the precise figure of the maximum rate of the
central sales tax in the law made by the Parliament because such a rate is
linked with the rate of local sales tax which is prescribed by the State
Legislatures. The Parliament in making such a law cannot be said to have
indulged in self-effacement. On the contrary, the Parliament by making such a
law effectuates its legislative policy, according to which the rate of central
sales tax should in certain contingencies be not less than the rate of the local
sales tax in the appropriate State…
… A law made by Parliament containing the above provision cannot be said to
be suffering from the vice of excessive delegation of legislative function. On the
contrary, the above law incorporates within itself the necessary provisions to
carry out the objective of the Legislature, namely, to prevent evasion of
payment of central sales tax and to plug possible loop-hole.’

The majority distinguished this case from the enactment of the law which was
struck down by the SC in B. Shama Rao v Union Territory of Pondicherry, AIT
1967 SC 1480.

In the Shama Rao case, the Legislative Assembly for the Union Territory of
Pondicherry passed the Pondicherry General Sales Tax Act which was published
on June 30, 1965. Section 1(2) of the Act provided that it would come into
force on such date as the Pondicherry Government may by notification appoint
and Section 2(1) provided that the Madras General Sales Tax Act, 1959…
…, as in force in the State of Madras immediately before the commencement
of the Pondicherry Act, shall be extended to Pondicherry subject to certain
modifications. The Pondicherry Government issued a Notification on March 1,
1966, appointing April 1, 1966 as the date of the commencement of the
Pondicherry Act. Prior to the issue of the Notification, the Madras Legislature
had amended the Madras Act and consequently it was the Madras Act as
amended up to April 1, 1966 which was brought into force in Pondicherry.’

Then a petition was filed challenging the validity of the Pondicherry Act.
During the pendency of that petition, the Pondicherry Legislature passed the
Amendment Act 13 of 1966 whereby Section 1(2) of the principal Act was
amended to read that the latter Act would come into force on April 1, 1966
and that all proceedings and action taken under that Act would be deemed
valid if the principal Act as amended had been in force at all material times.
Why was this amendment made by the Pondicherry Legislature?

Shama Rao – ‘The only result is that instead of the principal Act
having been brought into force under the said notification, it is
deemed to have come into force on April 1, 1966. This is done by a
deeming provision as if the new clause was there from the
beginning when the Act was passed. That being so, it is as if the
Pondicherry Legislature has extended the Madras Act together with
such amendments which might be made into that Act upto April 1,
1966….’
It was held by majority of the Court that the Act of 1965 was void and still-
born and could not be revived by the Amendment Act of 1966. The
Pondicherry Legislature not only adopted the Madras Act as it stood at the
date when it passed the principal Act, but in effect also enacted that if the
Madras Legislature were to amend its Act prior to the notification of its
extension to Pondicherry, it would be the amended Act that would apply.
The Legislature, it was held at that stage could not anticipate that the
Madras Act would not be amended not could it predicate what
amendments would be carried out, whether they would be of a sweeping
character or whether they would be suitable for Pondicherry. The result, in
the opinion of the Court, was that the Pondicherry Legislature accepted the
amended Act though it was not and could not be aware what the
provisions of the amended Act would be. There was, according to the Court,
in these circumstances a total surrender in the matter of sales tax legislation
by the Pondicherry Assembly in favour of the Madras Legislature.’
Then for the present case the majority of the SC in Gwalior Rayon
Mills notes:

‘It would appear from the above that the reason which prevailed
with the majority in striking down the Pondicherry Act was the total
surrender in the matter of sales tax legislation by the Pondicherry
Legislature in favour of the Madras Legislature. No such surrender is
involved in the present case because of the Parliament having
adopted in one particular respect the rate of local sales tax for the
purpose of central sales tax. Indeed, as mentioned earlier, the
adoption of the local sales tax is in pursuance of a legislative policy
induced by the desire to prevent evasion of the payment of central
sales tax by discouraging inter-State sales to unregistered dealers.
No such policy could be discerned in the Pondicherry Act which was
struck down by this Court.’
‘Another distinction, though not very material, is that in the
Pondicherry case the provisions of the Madras Act along with the
subsequent amendments were made applicable to an area which
was within the Union Territory of Pondicherry and not in Madras
State. As against that, in the present case we find that the
Parliament has adopted the rate of local sales tax for certain
purposes of the Central Sales Tax only for the territory of the State
for which the Legislature of that State had prescribed the rate of
sales tax. The central sales tax in respect of the territory of a State is
ultimately assigned to that State under Article 269 of the
Constitution and is imposed for the benefit of that State…’
[269 – taxes on sale and purchase of goods levied and collected by
CG but assigned/deemed to be assigned to SGs]
K.K. Mathew (for himself and A.N. Ray, C.J.) (concurring):

‘We think that the principle of the ruling in Shama Rao v. Pondicherry
must be confined to the facts of the case. It is doubtful whether
there is any general principle which precludes either Parliament or a
State Legislature from adopting a law and the future amendments to
the law passed respectively by a State Legislature or Parliament and
incorporating them in its legislation. At any rate, there can be no
such prohibition when the adoption is not of the entire corpus of law
on a subject but only of a provision and its future amendments and
that for a special reason or purpose …’
‘We think that Parliament fixed the rate of tax on inter-State sales of
the description specified in Section 8(2)(b) of the Act at the rate
fixed by the appropriate State Legislature in respect of intra-State
sales with a purpose, namely, to check evasion of tax on inter-State
sales and to prevent discrimination between residents in one State
and those in other States. Parliament thought that unless the rate
fixed by the States from time to time is adopted as the rate of tax
for inter-State sales of the kind specified in the sub-clause, there will
be evasion of tax in inter-State sales as well as discrimination…’
‘There can be no doubt that Parliament can repeal the provisions of
Section 8(2)(b) adopting the higher rate of tax fixed by the
appropriate State Legislature in respect of intra-State sales. If
Parliament can repeal the provision, there can be non objection on
the score that Parliament has abdicated its legislative function. It
retains its control over the fixation of the rate intact. In other
words, so long as Parliament can repeal the provisions of Section
8(2)(b) adopting the higher rate of tax fixed by the State
Legislatures, it has not abdicated its legislative function…’
Rojer Mathew v South Indian Bank Limited, (2020) 6 SCC 1

[The Judgment of the Court was delivered by Ranjan Gogoi, C.J. for himself, Ramana,
Chandrachud, Deepak Gupta, and Khanna, JJ. This judgment is signed by all five Hon’ble
Judges. Chandrachud, J. and Deepal Gupta, J. delivered separate supplementing and partly
dissenting opions, as well.]

One of the challenges in this petition was to Part XIV of the Finance Act, 2017 on the basis
that this was a case of excessive delegation as it faltered on the anvil of “essential legislative
functions” and “policy and guidelines” tests.

The Eighth Schedule in Section 183 contained a list of 19 tribunals with corresponding
enactments under which they were constituted. Section 183 overrode the provisions of the
enactments specified and mandated that from the appointed date, the authorities specified
in Schedule VIII and in such enactments shall be appointed in terms of provisions of Section
184 of the Finance Act – prospectively.
Reading of Sections 183 to 188 of the Finance Act, 2017 indicates that
except for providing the upper age-limit and that the person appointed shall
not have tenure exceeding five years from the date on which he enters
office and shall be eligible for re-appointment, the Finance Act delegates
the power to specify the qualifications, method of selection and
appointment, terms of office, salaries and allowances, removal including
resignation and all other terms and conditions of service to the Central
Government which would act as a delegate of Parliament.

Thus, the authority and power is conferred on the CG to decide

qualifications for appointment, process for selection, and terms and
conditions of service including salaries, allowances, resignation and removal
through delegated or subordinate legislation.
The majority notes that for the first time in Delhi Laws Act, 1912, In
re, 1951 SCC 568, a seven-Judge Bench delivering seven different
judgments clearly evinced the divergence of opinion on the
policy/guidance test and the scope of DL.

‘All the seven Judges in Delhi Laws Act, 1912 were in unison that
abdication or effacement by conferring the power of legislation to the
subordinate authority even if partial is not permissible. The difference
of opinion primarily arose from the meaning and scope of the
abdication or effacement of the legislative power.’
It notes that the SC in Ramesh Birch v Union of India, 1989 Supp (1)
SCC 430 had examined the seven opinions and ‘culled out the ratio
to observe that the lines of reasoning were different but
nevertheless the Judges had accepted the inevitable that while
Parliament has ample and extensive powers of legislation, these
would include the power to entrust some of the functions and
powers to another body or authority. At the same time, in Delhi
Laws Act the Judges had agreed that there should be limitations
on such delegation. However, on the question as to what is this
limitation, there was a lack of consensus.

(recall how different judges understood ‘abdication’)

Then in Ramesh Birch the DB referred to the “policy and guideline”
theory ‘as a test to decide whether or not it is a case of excessive
delegation which it was observed means reference and giving proper
regard to the context of the Act and the object and purposes sought
to be achieved should be clear and it is not necessary that the
legislation should dot all the i’s and cross all the t’s of its policy”. It is
sufficient if it gives the broadest indication of the general policy of the
legislature.’

‘It should be found out whether there are sufficient guidelines,

safeguards and checks in the Act which prevents excessive delegation.
The nature of body to which delegation is made is also a relevant
factor to be taken into consideration in determining whether there is
sufficient guidance in the matter of delegation …’
‘The Court should examine what constitutes essential features that the
legislature cannot delegate. This cannot be delineated in detail but nevertheless
and certainly it does not include the change of policy. The legislator is the
master of the policy and the delegate is not free to switch the policy for then it
would be usurpation of legislative power itself. Therefore, when the question of
the excessive delegation arises, investigation has to be made whether policy of
the legislation has not been indicated sufficiently or whether change of policy
has been left to the pleasure of the delegate. This aspect is of substantial
importance and relevance…’

‘... Delegation of some part of the legislative powers … [is] inevitable and an
administrative necessity. Thus, while essential legislative policy cannot be
delegated, however inessentials can be delegated over to relevant agencies.
The policy and principles test can be applied through express provisions
empowering delegation or any other provision of the statute including the
Preamble, the scheme or even the subject-matter of the statute.’
It then noted that ‘in Keshavlal Khemchand & Sons (P) Ltd. v Union of India,
(2015) 4 SCC 770, the SC had held that the earlier judgments had not been able
to lay down the principles including as to what exactly constitutes “essential
legislative function”, but the following inferences were drawn:

1. The proposition that essential legislative functions cannot be delegated does

not appear to be such a clearly settled proposition and requires a further
examination.
2. There is a need for some amount of delegated legislation in the modern
world.
3. If the parent enactment enunciates the legislative policy with sufficient
clarity, delegation of the power to make subordinate legislation to carry out
the purpose of the parent enactment is permissible.
4. Whether the policy of the legislature is sufficiently clear to guide the
delegate depends upon the scheme and the provisions of the parent Act.
5. The nature of the body to whom the power is delegated is also a relevant
factor in determining “whether there is sufficient guidance in the matter of
delegation.”’.

Further noted: ‘… in order to avoid the pure delegation of legislative power by

the creation of an administrative agency, the legislature must set limits on such
agency’s power and enjoin on it a certain course of procedure and rules of
decision in the performance of its function; and, if the legislature fails to
prescribe with reasonable clarity the limits of power delegated to an
administrative agency, or if those limits are too broad, its attempt to delegate is
a nullity.’
Application of the policy and guidelines test to the present
case

‘It is in this context we have to examine whether the plea of

excessive delegation would prevail and merits acceptance as
Section 184 of the Finance Act does not prescribe the
qualifications for appointment, and terms and conditions of
service. It will be difficult to hold that Part XIV of the Finance
Act suffers from the vice of unguided delegation as it fails to
clearly specify the eligibility qualifications for the Members,
Chairpersons, Chairman, etc. of different tribunals as such
requirements, though important, are not per se functionally
undelegatable.’
‘The objects of the parent enactments as well as the law laid down by
this Court in R.K. Jain, L. Chandra Kumar, Madras Bar Assn. I, Madras
Bar Assn. II and Gujarat Urja Vikas undoubtedly bind the delegate and
mandatorily requires the delegate under Section 184 to act strictly in
conformity with these decisions and the objects of delegated
legislation stipulated in the statutes. It must also be emphasised that
the Finance Act, 2017 nowhere indicates that the legislature had
intended to differ from, let alone make amendments, to remove the
edifice and foundation of such decisions by enacting the Finance Act.
Indeed, the learned Attorney General was clear in suggesting that
Part XIV was inserted with a view to incorporate the changes
recommended by the Court in earlier decisions.’
‘Independence of a quasi-judicial authority like the tribunal highlighted in the
above decisions would be, therefore, read as the policy and guideline
applicable.’

‘Further, cursory examination of the specified enactments mentioned in Column

3 of the Eighth Schedule reveals that most enactments did not stipulate the
manner of appointment, terms of office, salaries and allowances, resignation,
removal, that is, the terms and conditions of service, which stipulations are
delegated and they are not part of the principal enactment. For example, sub-
section (1) of Section 252 of the Income Tax Act, 1961 states that the Central
Government may constitute the Appellate Tribunal consisting of as many judicial
and accountant members as it thinks fit… Sub-sections (3) and (4) state that the
Central Government shall ordinarily appoint a Judicial Member as the President
… Sub-section (2) prescribes the eligibility requirements … The Income Tax Act
does not stipulate the manner or method for selection or terms and conditions of
service … equally true for the Appellate Tribunal constituted under the Central
Excise Act.’
‘Exactly what constituted “essential legislative function” is difficult to define in
general terms, but this much was clear that the essential legislative function
must at least consist of the determination of legislative policy and its formulation
as a binding rule of conduct. Thus, where the law passed by the legislature
declares the legislative policy and lays down the standard which is enacted into a
rule of law, it can leave the task of subordinate legislation which by its very
nature is ancillary to the statute to subordinate bodies i.e. making the rules,
regulations or bye-laws. The subordinate authority must do so within the
framework of the law which makes the delegation, and such subordinate
legislation has to be consistent with the law under which it is made and cannot
go beyond the limits of the policy and standard laid down in the law. Provided
the legislative policy is enunciated with sufficient clearness or a standard is laid
down, the courts should not interfere with the discretion that undoubtedly rests
with the legislature itself in determining the extend of delegation necessary in a
particular case.’
‘The legislature must retain in its own hand 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 extend 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, 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’
‘Cautioning against the potential misuse of Section 184 by the
executive, it was vehemently argued by the petitioner(s) that any
desecration by the executive of such powers threatens and poses a
risk to the independence of the tribunals. A mere possibility or
eventuality of abuse of delegated powers in the absence of any
evidence supporting such claim, cannot be a ground for striking
down the provisions of the Finance Act, 2017. It is always open to a
constitutional court on challenge made to the delegated legislation
framed by the executive to examine whether it conforms to the
parent legislation and other laws, and apply the “policy and
guideline” test and if found contrary, can be struck down without
affecting the constitutionality of the rule-making power conferred
under … the Finance Act, 2017’
Deepak Gupta, J. (dissenting on this point):

Agrees with the principles and precedents cited in the Chief Justice’s
Judgment.

‘By the Finance Act, 2017 the number of tribunals were reduced to 19.
It is the case of the Government that the tribunals are necessary so
that technically qualified people can man the tribunal. The nature of
work done by different tribunals is totally different. The essential
qualifications for filling up the posts of members of Administrative
Tribunals, Company Law Tribunals or the National Green Tribunal
would be totally different. This function, being an essential legislative
function, could not have been delegated especially without laying
down any guidelines.’
‘The case herein deals with the appointment of Chairpersons/Members to
various tribunals. They are enjoined upon to discharge a constitutional
function of delivering justice to the people. What should be the essential
qualifications and attributes of persons selected to man such high posts is
an essential part of legislative functions. The Constitution could not have
provided that the qualifications of the Judges of the Supreme Court of India
or of the High Courts could be fixed by the Government. If these tribunals
are to replace High Courts, why should the same principles not apply to
them. Laying down the qualifications of the persons eligible to hold these
high posts was an essential aspect of the legislation keeping in view the
importance of the tribunals, the importance of rule of law and the
importance of an independent and fearless judiciary.’

‘These qualifications have to be provided in the legislation and could not be

delegated. However, as far as the other terms and conditions such as pay
and allowances are concerned, these can be delegated.’
‘For the sake of argument, even if it was to be said that
laying down the qualifications is not an essential function
then also, in view of the law laid down, the guidelines should
have been found in the legislation itself. It is paradoxical that
there are no guidelines for the essential qualifications, even
though there are some guidelines with regard to the terms
and conditions of services of Chairpersons/Members of
tribunals.’
‘I am in respectful disagreement with the Chief Justice that the objects of the
parent enactments and the law laid down in R.K. Jain, (1993) 4 SCC 119, L.
Chandra Kumar, (1997) 3 SCC 261, Madras Bar Assn., (2010) 11 SCC 1, Madras
Bar Assn., (2014) 10 SCC 1, Madras Bar Assn., (2015) 8 SCC 583 and Gujarat
Urja Vikas Nigam Ltd., (2016) 9 SCC 103 in essence should be read as guidelines.
One would expect the Union Government to abide by the directions of the
Court. However, this expectation has been belied by this very enactment which
violates every principle of law laid down by the court and, as held in the
judgments of both my Brothers, the Rules framed by the delegate are violative
of the law laid down by the Court. In this background, it is apparent that both
the delegator and the delegate felt that they were not bound by these
judgments. This is also apparent from the fact that the Rules framed by the
delegate have not been brought in consonance with the law by the delegator.’
Held, no guidance provided by the Finance Act, 2017

‘There being no guidelines, unfettered and unguided powers have

been vested in the delegate and, therefore, there is excessive
delegation. As such, I would hold that Section 184 of the Finance Act,
2017 insofar as it delegates the powers to lay down the qualifications
of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman,
President, Vice-President, Presiding Officer or Member of the
tribunal, Appellate Tribunal or, as the case may be, other authorities
as specified in Schedule VIII Column 2 of the Finance Act, 2017,
suffers from the vice of excessive delegation and is accordingly struck
down.’
Chandrachud, J. (also dissenting on this point):

‘… the qualifications of members to tribunals constitute an

essential legislative function and cannot be delegated.
Tribunals have been conceptualised as specialised bodies with
domain-specific knowledge expertise. Indispensable to this
specialised adjudicatory function is the selection of members
trained in their discipline. Keeping this in mind, the
prescription of qualifications for Members of tribunals is a
legislative function in its most essential character.’
‘The qualifications for appointment to adjudicatory bodies determine
the character of the body. The adjudicatory tribunals are intended to
fulfil the objects of legislation enacted by Parliament, be it in the area
of consumer protection, environmental adjudication, industrial
disputes and in diverse aspects of economic regulation. Defining the
qualifications necessary for appointment of members constitutes the
core, the very essence of the tribunal. This is an essential legislative
function and cannot be delegated to the rule-making authority of the
central government. It is for the legislature to define the conditions
which must be fulfilled for appointment after assessing the need for
domain specific knowledge.’
DELEGATION AND STANDARDS OF JUDICIAL REVIEW ARE CONTEXTUAL

Power to impose tax

First: power may be delegated to the Government to exempt a commodity

from the purview of tax

In Orient Weaving Mills v Union of India, a provision conferring power on

the Central Government to exempt any excisable goods from the whole or
part of the duty leviable on such goods was held valid against the plea of
excessive delegation.
A statute levied a multi-point sales tax, but in the case of goods notified by
the Government, a single point tax could be levied. The SC held the
provision to be valid saying that while a Legislature cannot delegate its
essential legislative function, it can delegate the power to select the
persons on whom, or the goods or the transaction on which, the tax is to
be levied.

In the instant case, it is not possible for the legislature itself to select
goods to be subjected to the single point tax. Before making such a
selection, several matters need to be considered, such as, impact of the
levy on the society, economic consequences, administrative convenience,
etc. These factors change from time to time. Hence, in the very nature of
things these details have got to be left to the Government.
Second: power may be conferred on the Government to bring additional
transactions, commodities or persons within the purview of tax.

In Banarsi Das v State of Madhya Pradesh, AIR 1958 SC 909, a provision

authorising the Government to bring any goods within the purview of sales
tax law was held valid.

Third: power may be conferred on the Executive to fix from time to time
the rates of the tax itself. Law may impose a tax but it may leave it to the
Executive to quantify the rate at which it is to be levied. The statute usually
fixes a maximum limit subject to which the executive may fix the rate of
taxation from time to time.
In Devi Das v State of Punjab, AIR 1967 SC 1895, the law empowering the
executive to levy sales tax at a rate not exceeding 2% was held valid. The
SC stated that it was alright to confer a reasonable area of discretion on
the Government by a fiscal statute, but a large statutory discretion placing
a wide gap between the minimum and maximum rates, and thus enabling
the Government to fix an arbitrary rate might not be sustainable. So,
depends on the facts of each case.

In Sitaram Bishamber Dayal v State of Uttar Pradesh, AIR 1972 SC 1168,

the power to impose sales tax at a rate not exceeding 5% was upheld by
the SC as the rate prescribed was considered to be a reasonable upper
limit.
Municipal Bodies

A liberal judicial approach in the matter of delegation of legislative power

is discernible in respect of Municipal bodies. Broad delegation of such
powers have been upheld to strengthen local self-government. Mostly,
again this has been in context of tax, octroi and other duties.

In Corporation of Calcutta v Liberty Cinema, AIR 1965 SC 1107, the statute

conferred power on the Corporation to levy a license fee on cinemas at
such rates as the Corporation may resolve from time to time. The
legislative policy of “imposing taxes at such rates by the Corporation as
may be necessary to defray the cost of discharging its duties” was
impliedly read into the provision by the court.
Criminal Law

Legislature should itself provide the penalties and definition of

offences. Unlike tax provisions, there is no freedom to decide on
extending the applicability by inclusion or exclusion of any
criteria. The legislation itself should lay that down. But where a
range of penalties with an upper limit is prescribed, the power to
implement within that range can be delegated. To that extent
similar to tax provisions.
D.N. Ghosh v Additional Sessions Judge, AIR 1959 Cal 208 [12]:

“Prescribing an offence and its punishment is essentially a legislative act. But

provided that this can be attributed to the legislative body, the actual working
out of it can be delegated to a non-legislative body. The most simple example
will be where the legislature itself prescribes the rules, makes its violation an
offence, and lays down the penalty… The legislative body, instead of prescribing
the precise penalty may also lay down the limit or standard, leaving it to the
non-legislative body to prescribe the penalty within such limits or in accordance
with the standard laid down. In such a case where the non-legislative body
avails itself of the power, it cannot be said that it has created the offence or
prescribed the penalty. It is the legislative body which has created the offence
and prescribed the penalty, but has delegated the power to the non-legislative
body to apply or not to apply such provisions, or apply them in a suitable
manner within the limits imposed, as is required under the prevailing
circumstances. To this extent the delegation of power is a permissible
delegation… Then again the limits of the penalty nave been fixed by the
legislature and the standard to be followed has also been laid down.” (emphasis
supplied)
COVID-19 AND RULE BY
DECREE
A CASE STUDY OF NCT OF DELHI
The Law-Making Powers of the NCT of Delhi

The area now known at the NCT of Delhi was, until 1911, classified as a
district of the State of Punjab. Thereafter, when it was decided to
transfer the capital of British India from Calcutta to Delhi, the colonial
Government vide Notification No. 911 in September 1912 authorized the
Governor General to assume control over the Tehsil of Delhi and the
adjoining areas, now to be administered as a separate province under the
administrative control of the Chief Commissioner. The Delhi Laws Act,
1912 and the Delhi Laws Act, 1915, thereafter, empowered the Governor
General-in-Council to extend any enactments in force in any part of
British India to Delhi through requisite notifications. After independence,
as well, Delhi had continued to be administered by the Government of
India directly through its various departments, and this arrangement
continued until shortly after the commencement of the Constitution.
It was in 1951 that Delhi for the first time got its own
Legislative Assembly and a Council of Ministers with
restrictive powers, by virtue of section 21 of the ‘Part ‘C’
States Act, 1951’. However, this was to be a short-lived
arrangement, as five years later, both the Legislative
Assembly and the Council of Ministers for Delhi had ceased
to exist by the coming into force of the Constitution
(Seventh Amendment) Act, 1956. The Act had come into
force following the recommendations of the States
Reorganisation Commission, which noted that the dual
control over the division of responsibility had resulted in a
‘marked deterioration of administrative standards in Delhi’.
Finally, the Constitution (Sixty-Ninth Amendment) Act, 1991
introduced Articles 239AA and 239AB. The Amendment provided
that the Union Territory of Delhi shall henceforth be called the
National Capital Territory of Delhi. It, once again, provided for
Delhi to have its own Legislative Assembly with restrictive
competence, and a Council of Ministers headed by the Chief
Minister. Article 239AA also delineated the power-sharing
arrangements between the Lieutenant Governor (“LG”)
representing the Union, and the Council of Ministers, and as
shall be seen later, has been subject to several recent rounds of
constitutional adjudications. Subsequently, the ‘Government of
National Capital Territory of Delhi Act, 1991’ was enacted to
supplement the constitutional amendment
Article 239AA provides for the NCT of Delhi to have an elected
legislative assembly and enjoins the LG to act on the ‘aid and
advise’ of the Council of Ministers headed by the Chief Minister.
It also places a limitation upon the Legislative Assembly with
respect to enacting laws on three specific subject-matters in the
State List – ‘Land’, ‘Police’, and ‘Law and Order’. In case of any
difference of opinion between the LG and his ministers, the
Article enables the LG to refer such disagreement to the
President – by whose decision they are then bound to act. In rare
situations, dictated by the urgency of the matter concerned, the
LG may proceed to give necessary directions without waiting for
the President’s decision.
The scope of Article 239AA first came up for consideration
in New Delhi Municipal Council – a case arising in the
context of what constitutes union and state taxation.
Here, the Supreme Court first clarified that even though
the effect of Article 239AA is to constitute the Union
Territory of Delhi as a ‘class by itself’, ‘it is certainly not a
State within the meaning of Article 246 or Part VI of the
Constitution’. More recently, however, constitutional
adjudication on Article 239AA has arisen out of the
frequent disputes between the LG and the Council of
Ministers on the demarcation of the exact spheres of
authority between the two.
The first attempt was made by the Constitution Bench of the
Supreme Court in 2018 when the Court interpreted Article 239AA
and held that the LG is bound by the ‘aid and advice’ of the
Council of Ministers headed by the Chief Minister, except for ‘law
and order’, ‘police’, and ‘land’ . In rare and exceptional cases the
LG could refer a disagreement to the President, and in making
such referrals, the LG cannot act in a ‘mechanical manner without
due application of mind so as to refer every decision of the Council
of Ministers to the President’. The Court held that such referrals
may be made for ‘substantial issues of finance and policy which
impact upon the status of the national capital or implicate vital
interests of the Union’ , and not every trivial difference of opinion.
More importantly, the Court held that the LG has ‘not been
entrusted with any independent decision-making power’.
A year later, through a subsequent decision, a two-judge bench of
the Supreme Court further clarified that it is the Union that shall
have authority in respect of the Anti-Corruption Bureau and
setting up inquiries under the Commissions of Inquiry Act, 1952,
whereas the Government of NCT of Delhi will have control over
matters under the Electricity Act, Stamp Act, and the appointment
of Special Public Prosecutors. The two-judge bench, however, split
over the issue of control over ‘services’ , and hence the matter
was referred to a three-Judge bench. The three-Judge Bench,
thereafter, referred the matter to a Constitution Bench of five
judges, and the issue of control over ‘services’ remains pending an
authoritative pronouncement from the Court.
It should further be noted that in 2021 the Parliament passed the
Government of National Capital Territory of Delhi (Amendment)
Act, 2021 which came into force on April 27, 2021. This legislation
declares that ‘Government’ in any of the laws passed by the
Assembly shall mean the ‘Lieutenant Governor’, and that the LG’s
opinion shall be sought prior to any executive action. It also
declares that the Assembly shall not make any rule to enable itself
to consider the day-to-day matters of administration of the capital.
This legislation seemingly unsettles the law declared by the
Constitution Bench of the Supreme Court in 2018, and a
constitutional challenge to the Act is currently pending before the
court.
The Special Focus on the NCT of Delhi’s Pandemic Response

The Government chose to invoke an old colonial-relic of a

legislation in the form of the 1897 Act to manage its COVID-19
response, which resulted in the lack of any legislative supervision
or control over the executive.

The choice of the 1897 Act enabled the executive to arrogate to

itself wide and plenary powers to respond to the pandemic, which
would otherwise have required express statutory authorization.
Section 2 of the 1897 Act empowers a state government to take
such measures ‘as it shall deem necessary’ to stem the spread of
an epidemic. Apart from this ‘as it shall deem necessary’ directive,
the 1897 Act does not contain any express authorizations to order
lockdowns, curfews, and other restrictions on civil liberties during
an emergency.

There is no express enumeration of the specific powers being

delegated, and no controlling policy indication is to be found to
guide the executive, apart from the rather vague formulation of
‘preventing the outbreak of an epidemic disease’.
The NCT of Delhi’s approach can be juxtaposed with the primary
laws of some of the other states which contained express
authorizations for lockdowns, curfews, shutting down of public
places etc., and where the respective state governments
implemented such restrictions, tracing their legitimacy to do so
from the respective primary laws.

While states such as Karnataka, Kerala, Rajasthan, and Uttar

Pradesh promulgated ordinances to be replaced by primary
enactments; Delhi, Andhra Pradesh, Chhattisgarh, Gujarat, Punjab,
and Telangana promulgated regulations under the 1897 Act. The
case study of the NCT of Delhi is illustrative of the approach of the
latter set of states.
For instance, Uttar Pradesh first formulated the ‘Uttar Pradesh Public
Health and Epidemic Diseases Control Ordinance, 2020’ , later replaced
by the ‘Uttar Pradesh Public Health and Epidemic Diseases Control Act,
2020’. The authorization to the Government of Uttar Pradesh to
impose lockdowns, curfews, etc. was to be found in this law, which also
set up a State Epidemic Control Authority headed by the Chief Minister.

Likewise, Karnataka formulated its own ‘Epidemic Diseases Ordinance,

2020’, which was replaced by the ‘Karnataka Epidemic Diseases Act,
2020’. Section 4(2) of the Karnataka legislation, in fact, provided a clear
list of ten restrictions which the executive was authorized to impose,
including selective or complete lockdowns and curfews.
Another instance is of Kerala which too first promulgated an
ordinance later to be replaced by the ‘Kerala Epidemic Diseases
Act, 2020’. Section 4(2) of the Kerala Ordinance which was later
replaced by a primary law, similarly authorized the Government to
impose nine specific restrictions including ordering the shutdown
of public places.

In Rajasthan, too, the ‘Epidemic Diseases Ordinance, 2020’ was

replaced by the ‘Rajasthan Epidemic Diseases Act, 2020’. Section
4(2) of the Rajasthan law, like its Kerala counterpart, authorized
the executive to impose nine major restrictions.
These primary laws of U.P., Karnataka, Kerala, and Rajasthan, all
contained a residual clause authorising the executive to take
measures as it deemed fit, as well. However, it is important to
highlight that such residual clauses were to be found only once
the authorization of all the major restrictions on lockdowns,
curfews, etc. had already been expressly enumerated.

The scope of such residual clauses was, therefore, considerably

narrower than, and incomparable with, the stand-alone ‘as it shall
deem fit’ directive under Section 2 of the 1897 Act.
This route of enacting a specialized primary law would appear to
be the constitutionally proper mechanism in as much as
restrictions on civil liberties necessitated during emergencies
should have been put in place only with statutory backing. On the
other hand, the invocation of the 1897 Act in the NCT of Delhi
enabled the Government to be the first point of imposing
restrictions ‘as it deemed fit’.
Therefore, acting under the guise of the excessively wide
delegation under the 1897 Act, the Government went on to
arrogate to itself plenary powers including those of ordering pre-
censorships and lockdowns, without express legislative
authorization.
Further, regulations framed under the 1897 Act escape legislative
scrutiny in as much as there is no requirement for such regulations
– including the ones made by the NCT of Delhi – to be laid before
the state legislature upon promulgation – an otherwise standard
requirement incorporated in all contemporary primary laws. This
is in stark contrast to each of the examples discussed previously –
the rules and regulations made under the respective specialized
primary laws of Uttar Pradesh, Karnataka, Kerala, and Rajasthan,
for instance, are required to be laid before the state legislature
upon their promulgation.

No such mandate in the 1897 Act.

[In their written evidence to the Joint Committee on Conventions of
the UK Parliament, the Secretary General of the Rajya Sabha,
Parliament of India submitted a memorandum clarifying upon the
practice of including a laying requirement in all statutes. The
memorandum states that the Committee on Subordinate legislation of
Rajya Sabha on 24th May 1971, through its 10th Report, approved a
revised formula for laying of statutory rules before both the Houses of
Parliament. Since then (i.e., only 1971 onwards), the laying
requirement as per the said rules has been incorporated by the
Ministry of Law and Justice in all legislations.]

It follows that the exercise of the wide delegation to the executive

under the 1897 Act escapes legislative scrutiny in its entirety. The NCT
of Delhi’s pandemic response, therefore, was entirely executive driven
with no legislative oversight.
To be sure, the 1897 Act is what other common law jurisdictions such as the
United Kingdom (an appropriate reference, given the colonial origin of the
1897 Act) would now term as a ‘skeleton’ law, which is frowned upon by
legislative committees constituted to scrutinize delegated legislations in that
jurisdiction. For instance, the House of Lords Select Committee on the
Constitution in its 16th Report (2018) has defined skeleton legislations as ‘[t]he
extreme end of the spectrum of legislative uncertainty’ where ‘[b]road
delegated powers are sought to fill in policy details at a later date’. They are
often a consequence of a situation where the Government needs to commit
itself to doing something but doesn’t know ‘quite what to do’ , which would
appear to be a perfect metaphor for an executive caught off-guard due to the
pandemic. The Committee concluded that ‘[s]keleton bills inhibit
parliamentary scrutiny’ and it found it ‘[d]ifficult to envisage any circumstances
in which their use is acceptable’. It further concluded that ‘the Government
must provide an exceptional justification’ for such laws. The 1897 Act is part of
a colonial legacy of similar skeleton laws.
Within Asia, the NCT of Delhi’s reliance on a generic pre-existing
emergency legislation was mirrored by the approaches of Thailand and
Singapore. In Thailand, for instance, existing emergency laws that
catered to dealing with terrorists and public enemies were marshalled
to tackle the pandemic. This, in turn, led to harsher impacts upon the
marginalized and the poor, an experience that India became all too
familiar with in the wake of the migration of millions of migrant
workers during the first lockdown.

Singapore, too, initially invoked a pre-existing law, viz., the ‘Infections

Diseases Act’, which was amended to respond to the COVID-19
pandemic. However, it later enacted the ‘COVID-19 Temporary
Measures Act, 2020’ to regulate movement and social activities, and
the new sui generis law incorporated both public health and economic
components.
In fact, the more desirable route to manage the pandemic response within Asia
seems to have been the adoption of sui generis or specialized primary laws.
Ramraj and Thiruvengadam survey the emergency powers invoked to manage
COVID-19 throughout Asia, and conclude, inter alia, that even though ‘[l]aw
does not fully determine outcomes, but in the context of a pandemic,
specialized laws directed at infectious diseases seemed more effective in
containing the spread of a virus than general emergency powers or statutes
crafted for a different purpose’. They note that:

“[j]urisdictions from South Korea to Vietnam adopted specialized public health

and infectious diseases legislation to address many of the challenges that
emerged during the pandemic. Although these legislative initiatives could not
have anticipated all of the challenges of a pandemic on the scale of COVID-19,
they at least provided a legislative starting point from which to respond to the
crisis.” (emphasis supplied)
This ‘legislative starting point’ is what was so crucially missing in the
case of the NCT of Delhi. Policy choices such as pre-censorships, and
imposing large-scale lockdowns were not forthcoming through any
specialized primary law, but were arrogated by the executive to
themselves through the invocation of the 1897 Act, and the excessively
wide delegation embodied in it.

Given how the NCT of Delhi’s pandemic response deviated from the
more acceptable responses both domestically as well as globally, it
makes for a special case for analysis in this article. The subsequent
slides analyse – quantitatively and qualitatively – the primary as well as
delegated laws of the NCT of Delhi in 2020, and its management of the
COVID-19 pandemic through them.
The NCT of Delhi’s Legislative Output in 2020

Legislations Notified in 2020

The year 2020 saw a total of six legislations being notified in the NCT of Delhi,
with the LG assenting to five Bills, and the President of India assenting to one.
These were:
1. The Delhi Appropriation (No. 1) Act, 2020
2. The Delhi Appropriation (No. 2) Act, 2020
3. The Delhi Sports University Act, 2019
4. The Delhi Skill and Entrepreneurship University Act, 2019
5. The Delhi Urban Shelter Improvement Board (Amendment) Act, 2015
6. The Delhi Goods and Services Tax (Amendment) Act, 2020
However, three of the above legislations were passed in the sessions of
the Assembly preceding the year 2020 – both, the Delhi Sports
University Act, 2019 and the Delhi Skill and Entrepreneurship
University Act, 2019 were passed by the Delhi Assembly in 2019 and
received the LG’s assent in 2020; while The Delhi Urban Shelter
Improvement Board (Amendment) Act, 2015 (the “DUSIB
(Amendment) Act, 2015”) was passed by the Delhi Assembly in 2015
and receive the assent of the LG in 2020.

The DUSIB (Amendment) Act, 2015 marked the culmination of a long-

drawn battle between the Government and the LG, since it was one of
the many legislations over which the LG had initially withheld assent,
disputing the Assembly’s competence to pass the legislation.
Low Legislative Output, and A Rise in Subordinate Legislation

If the number of laws which were assented to in 2020 but passed by the
Assembly in the preceding years are excluded, the actual legislative
output of the Delhi Legislative Assembly for the year 2020 would be
restricted only to The Delhi Appropriation (No. 1) Act, 2020; The Delhi
Appropriation (No. 2) Act, 2020; and The Delhi GST (Amendment) Act,
2020 .

Out of these, the two Appropriation Acts may be excluded from

consideration as they are routinely passed in every Assembly’s Budget
Sessions. The substantive output of the Assembly for the year 2020 was,
therefore, limited to just one legislation, viz., The Delhi GST
(Amendment) Act, 2020 , which was adopted by voice-vote in the
Assembly’s First Session – Fourth Part on 14th September 2020.
The Assembly had only eight sessions in the year. An output of one
substantive legislation in eight sessions amounts to a productivity rate
of 12.5%. This would make the year 2020 the second-most
unproductive year for the Legislative Assembly of Delhi when
compared with the past five years.

However, the business of the Government continued to run apace

through several Subordinate legislations and executive instruments of
the likes of notifications, circulars, orders, etc. In fact, it would appear
that the number of subordinate legislations promulgated more than
made up for the lack of legislative activity, and such subordinate
legislations formed the bedrock of the Government’s COVID-19
response. This can be made sense of considering the emergency
nature of the pandemic.
Subordinate legislations promulgated by the NCT of Delhi in 2020

An examination of the available public records reveals that these

subordinate legislations included about 466 Notifications/Circulars; 1
Essential Commodities Order; and 20 Rules (excluding the rules made
by the High Court of Delhi regarding virtual hearings and video
conferencing of court proceedings).

Of the 466 department-wise Notifications and Circulars, a total of 107

(i.e., approximately 23 per cent) pertained to the public purse – 24 by
the Department of Excise; 39 by the Department of Revenue; and 44
by the Department of Finance
 Name of the Department No. of Notifications/Circulars

Department of Administrative Reforms 1

Department of Arts, Culture and Language 1
Department of Delhi Jal Board 64
Department of Development 2
Department of Directorate of Economics and Statistics 2
Department of Excise 24
Department of Directorate of Training and Technical Education 32
Department of Legislative Assembly Secretariat 1
Department of Food Safety 9
Department of Food Supplies and Consumer Affairs 27
Department of Industrial and Infrastructural Development 1
Department of Labour 2
Department of Irrigation and Flood Control 3
Department of Labour Commissioner 23
Delhi Pollution Control Committee 1
Office of the Registrar, Co-operative Societies 31
Department of Revenue 39
Department of Social Welfare 44
Department of Women and Child Development 85
Department of Finance 44
Department of Transport 30
Total 466
Rules:

6 out of the 20 rules promulgated, i.e., approximately 30 per cent,

pertained to finance; and another 6 rules and 30 per cent of the
total rules promulgated, pertained to police and prisons.
‘Multi Tasking Staff’ Recruitment Rules, 2020
Delhi Excise (Amendment) Rules, 2020
Delhi Goods and Services Tax (Amendment) Rules, 2020
Delhi Goods and Services Tax (Second Amendment) Rules, 2020
Delhi Goods and Services Tax (Third Amendment) Rules, 2020
Delhi Goods and Services Tax (Fourth Amendment) Rules, 2020
Delhi Goods and Services Tax (Fifth Amendment) Rules, 2020
Delhi Higher Judicial Service (Amendment) Rules, 2020
Delhi Home Guards (Amendment) Rules, 2020
Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2020
Delhi Police (Promotion and Confirmation) (Amendment) Rules, 2020
Delhi Police (Punishment and Appeal) (Amendment) Rules, 2020
Delhi Prisons (Amendment) Rules, 2020
Delhi Prisons (Amendment) Rules, 2020
Delhi Prisons (Amendment) Rules, 2020
Delhi Prisons (Fifth Amendment) Rules, 2020
Department of Training and Technical Education, Government of National Capital Territory of Delhi, Assistant Professor, Pharmacy Recruitment Rules, 2020

Deputy Director (Archives), Recruitment Rules, 2020

Lecturer, Fashion Designing Recruitment Rules, 2020
Delhi Motor Vehicles (Second Amendment) Rules, 2020
Both, the Notifications or Circular, as well as the Rules, deal
with routine matters of day-to-day administration.

To speak in terms of substantive content, the Government’s

response to the pandemic was managed only through two sets
of primary Regulations promulgated under Section 2 of the
1897 Act. These are discussed and measured against the
specific prescriptions governing delegated legislations, in the
subsequent slides.
The Pandemic Response

Deviations from the Fundamental Principles Governing Delegated

Legislations

There were two primary regulations under the 1897 Act which
formed the bedrock of the Government’s COVID-19 response, and
all further orders were issued under the authority of these primary
regulations. The Health and Family Welfare Department of the
Government of Delhi issued ‘The Delhi Epidemic Diseases, COVID-
19 Regulations, 2020’ on 12 March 2020 (the “Delhi (COVID-19)
Regulations”), and ‘The Delhi Epidemic Diseases, (Management of
COVID-19) Regulations, 2020’ on 13 June 2020 (the “Delhi
(Management of COVID-19) Regulations”).
These regulations were initially issued for a period of one year from
the date of publication but were later extended by another year
through a notification dated 14 October 2021 by the LG. Let’s
discuss the specific prescriptions governing the fundamental rules
of delegated law-making and analyse these Regulations against
them.

Delegated Legislation Cannot Encroach Into ‘Essential Legislative

Functions’ (The Policy and Guidelines Test)

It is trite proposition of law that delegated legislation cannot

transgress into the domain of ‘essential legislative policy’. This
principle requires the primary legislation to spell out the policy and
set out the standards to guide the executive.
The principle disallows the use of vague and general terms
which confer an unfettered discretion upon the executive. It is
not permissible for the legislature to confer upon the executive
an uncanalized power to change or modify the legislative policy
laid down by it, without reserving for itself any control over the
subordinate legislation.

Determining legislative policy is, thus, a function exclusively

within the domain of the legislature, and cannot be delegated
through subordinate legislation. It can’t also be said that it can
be the legislative policy to let executive set policy in specific
cases, as that would amount to excessive delegation.
House of Lords Select Committee on the Constitution in its 16th
Report (2018) has also recently concluded that primary legislation
should be ‘sufficiently clear’ to be able to guide executive
discretion. It stated that if there are policy lacunae within the
legislation, it is unacceptable for subordinate legislations to fill them
especially since they escape parliamentary scrutiny in most part.

But a word of caution: Even as Section 2 of the 1897 Act seems to

be an excessively broad delegation, it must be mentioned that the
1897 Act and the delegated legislations made under Section 2
thereof should be distinguished from delegated law-making in
ordinary times. This is because COVID-19 was an unprecedented
public health emergency which necessitated a wider delegation of
powers than what would be considered proportionate under
normal circumstances. This wide delegation should be adjudged on
the anvil of the doctrine of necessity in the context of emergencies.
The principle that delegation in case of emergencies would differ
from delegation in ordinary circumstances was distinctly recognised
in the seminal case of In re, Delhi Laws Act. For instance, Justice
Fazl Ali noted that ‘[T]ere may also arise emergencies and urgent
situations requiring prompt action and the entrustment of large
powers to authorities who have to deal with the various situations
as they arise’, with the added caveat against the abuse of such
powers.

Justice B.K. Mukherjea further added that ‘[U]sually, in times of

emergency, the legislature exercises its power of delegation
extensively and entrusts its law-making powers to the executive
almost without limit’ , and that it can do so in peacetime too where
the nature of the emergency so demands ‘[w]ith respect to any
subjects other than public security or the defence of the nation’
In terms of limits upon excessive delegation even during
emergencies, the Court held that, first, the legislature must retain
with itself the power to roll back the delegated legislation by taking
matters into its own hands at any point of time, i.e., ‘[I]t must not,
without preserving its own capacity intact, create and arm with its
capacity a new legislative power not created or authorised by the
instrument by which the legislature itself was constituted’. Second,
as mentioned earlier, courts can interfere in the exercise of such
excessive delegation ‘[i]n clear cases of abuse’.

The corollary of the directive against abuse is that excessive

delegation is permissible as long as it is used to serve the purpose
of ameliorating the effects of the emergency, and doesn’t go
beyond that remit under the guise of the emergency.
It is in this context of the public health emergency of COVID-19,
that the wide delegation under Section 2 of the 1897 Act
should be appreciated. The excessive delegation under Section
2 of the 1897 Act would be justified – subject to the limits
outlined above – in the context of the COVID-19 pandemic even
if it wouldn’t be under normal circumstances. With the
understanding that excessive delegation in emergencies would
require a more sympathetic outlook than in normal
circumstances, as also of the limits outlined by the Supreme
Court, we may now analyse the Delhi Government’s pandemic
response.
The Delhi (COVID-19) Regulations invoke Section 2 of the 1897 Act
to provide for pre-censorship of the media vide Regulation 6, and
prescribes that:
“No person/institution/organisation will use any print or electronic
media for information regarding COVID-19 without prior permission
of the Department of Health and Family Welfare, Govt of NCT of
Delhi. This is to avoid spread of any rumour or unauthenticated
information regarding COVID-19. In case any
person/institution/organisation is found indulging in such activity, it
will be treated as a punishable offence under these regulations”
(Reg. 6)

Further, Regulation 15 of the Delhi (COVID-19) Regulations ipso

facto incorporates all the advisories issued by the Union
Government under a different legislation, viz., the Disaster
Management Act, 2005 (the 2005 Act) as directions issued by the
Government of NCT of Delhi under the 1897 Act. (Reg. 15)
Furthermore, Regulation 16 prescribes the containment
measures that the State Task Force is entitled to take if cases of
COVID-19 are reported from a specific geographical area. These
contain a list of eight specific measures, in addition to a catch-
all sub-Regulation entitling the Government to take ‘any other
measure as directed by the Department of Health and Family
Welfare.’

It was in furtherance of the Delhi (COVID-19) Regulations that

the Health and Family Welfare Department issued an Order
dated 12th March 2020 – the same date as on when the Delhi
(COVID-19) Regulations were promulgated – ordering the
shutting down of educational institutions, cinema halls, and
public swimming pools.
The contents of the Regulation as detailed in the previous slides
illustrate that far from focusing on ‘ancillary’ matters of
implementation, the regulations venture into the domain of
making substantive policy choices, and thereby transgressing
into the exclusive domain of the legislature.
They do so by providing for a pre-censorship on the media;
automatically incorporating Central Government advisories as
regulations issued under a different Central law; and
empowering the executive to take any measures it pleases
without any legislative guidance.
These are all important policy decisions in their own right,
which have been promulgated as regulations by invoking the
general and vague expression ‘as it shall deem fit’ under
Section 2 of the 1897 Act.
As outlined previously, even though the emergency nature of the
pandemic necessitated a wide delegation of powers to the
executive, such delegation should have a reasonable nexus with the
purposes of ameliorating the effects of the emergency and not be
abused.
However, the above measures would appear to go far and beyond
their remit. For instance, to bring in pre-censorship (subject to the
constitutional questions around such a move in the first place) with
a view to prevent the spread of rumours or fake news is a policy
choice to be made by the legislature, and express authorization for
the same should be found in the primary law.
The ‘ancillary’ aspects of implementing that legislative authorization
– criteria for inclusion of media houses/publications (by print
volume, number of subscribers etc.); what manner of news can(not)
be disseminated; what are the exceptions etc. – would be matters
within the domain of delegated legislation. Instead, the Regulation
provides for a blanket imposition of pre-censorship.
Similarly, to decide to shut down public places such as cinema
halls/swimming pools/restaurants etc. is a policy decision to be
made with the view to curtail the outbreak of the pandemic, and
should be expressly authorized by the primary law. This was indeed
the case with the specialized primary laws of Uttar Pradesh,
Karnataka, Kerala, and Rajasthan.
However, to determine the specific modalities of implementing such
action – in which districts; during what hours; what are the
exceptions if any; what are the Standard Operating Procedures
(SOPs) etc., would constitute ‘ancillary’ matters of implementation
more suited for delegated legislation.
To not make these reasonable classifications and incorporate
blanket restrictions on pre-censorship and shutting down of public
places through regulations, without authorization in the primary
law, is to breach even the permissible limits of excessive delegation
in emergencies. Accordingly, such regulations cannot be justified
despite accounting for the doctrine of necessity.
Delegated Legislation Shall Not Be Manifestly Arbitrary

Several judicial pronouncements have declared that delegated

legislations would be held to be violative of Article 14 if they are
‘manifestly arbitrary’. These have held that a delegated legislation is
‘manifestly arbitrary’ if it cannot reasonably be expected to emanate
from the authority delegated; is formulated without adequate
determining principle; and is forbiddingly excessive or
disproportionate.

[Khoday Distilleries Ltd. v State of Karnataka, (1996) 10 SCC 304;

Indian Express Newspapers (Bombay) (P) Ltd. v Union of India, (1985) 1
SCC 641; Sharma Transport v State of Andhra Pradesh, (2002) 2 SCC
188; Cellular Operators Association of India v Telecom Regulatory
Authority of India, (2016) 7 SCC 703; Franklin Templeton Trustee
Services Private Limited v Amruta Garg, AIR 2021 SC 3494; Shayara
Bano v Union of India, (2017) 9 SCC 1 etc. ]
More recently, in Shayara Bano v Union of India , Justice Nariman
(speaking for himself and Justice Lalit), in his concurring opinion
stated:

“it will be noticed that a Constitution Bench of this Court in Indian

Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that
it was settled law that subordinate legislation can be challenged on
any of the grounds available for challenge against plenary
legislation… The test of manifest arbitrariness, therefore, as laid
down in the aforesaid judgments would apply to invalidate
legislation as well as subordinate legislation under Article 14.
Manifest arbitrariness, therefore, must be something done by the
legislature capriciously, irrationally and/or without adequate
determining principle. Also, when something is done which is
excessive and disproportionate, such legislation would be manifestly
arbitrary.” (emphasis supplied)
However, as discussed above, excessive delegation in an emergency would
be more acceptable than under ordinary circumstances, if it is not abused
and is restricted to ameliorating the effects of the emergency. The contents
of the Delhi (COVID-19) Regulations, nonetheless, breach the above
prescription. The imposition of pre-censorship by the Delhi (COVID-19)
Regulations is excessive and disproportionate as it doesn’t make any
reasonable classification between different kinds of media based upon
volume, number of readers, the content of the information disseminated,
etc.; nor does it prescribe for any eligible exceptions. It simply incorporates
a sweeping pre-censorship rule for ‘any’ print/electronic media
communications concerning COVID-19, which is a disproportionate and
excessive restriction, and hence ‘manifestly arbitrary’.
This is because the specific object of preventing fake news in this case could
have been addressed by measures falling short of a blanket imposition of a
pre-censorship, and yet no such classifications were reflected in the
Regulations. Therefore, even by standards of permissible excessive
delegation in an emergency, the Delhi (COVID-19) Regulations are
manifestly arbitrary to the above extent.
Delegated Legislation Cannot Prescribe New Penalties Not
Contemplated by Primary Legislation

When it comes to prescribing penalties and fines by way of

delegated legislation, it has been held that if the parent statute
itself prescribes the penalties in question, or an upper limit of a
fine to be imposed, then it constitutes ‘permissible delegation’
for the executive to make rules incorporating those penalties,
or impose fines within the upper limit prescribed by the
legislation, as the case may be. Imposition of penalties and
fines, ultimately, needs to be on the back of statutory authority
D.N. Ghosh v Additional Sessions Judge, AIR 1959 Cal 208 [12]:

“Prescribing an offence and its punishment is essentially a legislative act.

But provided that this can be attributed to the legislative body, the actual
working out of it can be delegated to a non-legislative body. The most
simple example will be where the legislature itself prescribes the rules,
makes its violation an offence, and lays down the penalty… The legislative
body, instead of prescribing the precise penalty may also lay down the limit
or standard, leaving it to the non-legislative body to prescribe the penalty
within such limits or in accordance with the standard laid down. In such a
case where the non-legislative body avails itself of the power, it cannot be
said that it has created the offence or prescribed the penalty. It is the
legislative body which has created the offence and prescribed the penalty,
but has delegated the power to the non-legislative body to apply or not to
apply such provisions, or apply them in a suitable manner within the limits
imposed, as is required under the prevailing circumstances. To this extent
the delegation of power is a permissible delegation… Then again the limits
of the penalty have been fixed by the legislature and the standard to be
followed has also been laid down.” (emphasis supplied)
Now, coming to the Government’s COVID-19 response, Regulation
3(h) of the Delhi (Management of COVID-19) Regulations empowers
‘Authorised Persons’ to impose a fine of INR 500 for the first
offence, and of INR 1,000 for the second offence of disobeying
directives on social distancing and hygiene. Further, Regulation 5
provides that if any person fails to pay the penalty ‘on the spot’,
action would be taken against them under Section 188 of the Indian
Penal Code, 1860 (the IPC), which prescribes penalties for
disobedience of orders duly promulgated by public servants.

Furthermore, the Delhi (COVID-19) Regulations and the Delhi

(Management of COVID-19) Regulations both provided for legal
immunity for actions done further to such regulations under ‘good
faith’, and a general provision enabling proceedings under Section
188 IPC against anyone in breach of the regulations. These are
direct incorporations of Sections 3 and 4 of the 1897 Act,
respectively.
To be sure, the 1897 Act does provide for prosecution under
Section 188 of the IPC and legal immunity for actions
undertaken in good faith, and to that extent the Delhi
(Management of COVID-19) Regulations were entitled to
incorporate these two prescriptions. Section 188 IPC further
provides the penalty of a maximum fine of INR 1,000, and
therefore, again, the Delhi (Management of COVID-19)
Regulations could lawfully impose the first fine of INR 500 and
the second fine of INR 1,000.

Accordingly, the Delhi (COVID-19) Regulations and the Delhi

(Management of COVID-19) Regulations meet the third
prescription of no new penalty without legislative backing, as
they stay within the limits imposed by Sections 3 and 4 of the
1897 Act.
It is likely that such deviations could have been prevented had the
Government chosen to enact a specialized primary enactment to
manage its COVID-19 response or promulgate an Ordinance to be
later replaced by such primary enactment. In either case, the
legislature could have incorporated clear guidelines for the
executive to respond to the threat posed by the pandemic. As seen
previously, states such as Karnataka, Kerala, Rajasthan, and Uttar
Pradesh did follow the latter route by promulgating ordinances to
either amend or replace entirely the 1897 Act, and these
ordinances then took the form of individual state legislations on
epidemic diseases. It was also seen that specialized primary laws
remained the most effective and constitutionally proper response
internationally. However, as far as the NCT of Delhi is concerned,
the Government did not enact a new primary law, and its COVID-19
response continued to be managed through excessive delegation to
the executive, breaching the permissible limits of delegated law-
making even by the standards of an emergency.
It would, however, do us good to acknowledge that given the
uncertain power-sharing arrangement between he LG and the
Council of Ministers, as also the past record of the LG having
withheld consent on even routine matters of day-to-day
administration, any such new legislation would have had to be
preceded by a consensus as to its contents between the LG and
the Council of Ministers. Even to explore the ordinance route –
and for the ordinance to be adopted through a successor
legislation – such cooperation would have been necessary.
However, given the past record of disagreements between the
LG and the Council of Ministers, it is doubtful that such
legislation could have been enacted without controversy.
However, as per Article 239AA of the Constitution read with List
III, Schedule VII, the NCT of Delhi would have nonetheless had
it within its legislative competence (Entry 6 – public health and
sanitation) to enact a law to authorize the Governmental
response to the pandemic. To not even have attempted to
explore that option, and take the first recourse to the 1897 Act,
has in the final analysis led to several of the Governmental
regulations breaching the prescriptions on delegated law-
making even after accounting for the doctrine of necessity.
The COVID-19 pandemic has certainly left behind lessons to be
learnt for governments to deal with public health emergencies
in the future. The article does not suggest that specialized or
sui generis primary laws would be the one-stop solution to all
problems, and indeed, they could suffer from the same vices of
manifest arbitrariness as delegated laws. However, it proposes
that as a starting point, specialized primary laws would
constitute a more effective and constitutionally proper
response over invoking pre-existing, general, and skeleton
emergency powers, which place excessively wide discretion in
the hands of the executive without adequate scrutiny.
K.C. Davis, A New Approach to Delegation

‘The non-delegation doctrine is almost a complete failure. It has not

prevented the delegation of legislative power. Nor has it
accomplished it later purpose of assuring that delegated power will
be guided by meaningful standards. More importantly, it has failed to
provided needed protection against unnecessary and uncontrolled
discretionary power. The time has come for the courts to
acknowledge that the non-delegation doctrine is unsatisfactory and
to invent better ways to protect against arbitrary administrative
power.’
• The non-delegation doctrine can and should be altered to turn it
into an effective and useful judicial tool. Its purpose should no
longer be either to prevent delegation of legislative power or to
require meaningful statutory standards; its purpose should be the
much deeper one of protecting against unnecessary and
uncontrolled discretionary power.
• The focus should no longer be exclusively on standards it should
be on the totality of protections against arbitrariness, including
both safeguards and standards.
• The key should no longer be statutory words; it should be the
protections the administrators in fact provide, irrespective of what
the statutes say or fail to say. The focus of judicial inquiries thus
should shift from statutory standards to administrative safeguards
and administrative standards
1. The Failure of the Non-Delegation Doctrine

• The original purpose of the non-delegation doctrine was to prevent the

delegation of legislative power. The later purpose was to require meaningful
standards when power was delegated. But this has failed.

2. Three Recent Cases of Major Administrative Policy-Making Without

Meaningful Statutory Guidance

• Major governmental policy is often administratively made without significant

statutory guidance. Three outstanding cases show exercise of regulatory
power over a vital subject matter of large dimensions, even though Congress
at the time of the enactment knew nothing of the subject and could have
had no intent wrt it. The whole policy was made w/o guidance from the
Congress.
• The three cases are United States v Southwestern Cable Co., upholding the
Federal Communications Commission’s CATV (community antenna
television) regulations; American Trucking Associations, Inc. v Atchison,
Topeka & Santa Fe Railway, upholding the Interstate Commerce
Commission’s “piggy-back” regulations; and Permian Basin Area Rate Cases,
upholding the Federal Power Commission’s area price fixing for natural gas.

United States v Southwestern Cable Co

• The case upheld the Federal Communication Commission’s regulation of

CATV (community antenna television), which did not exist when the
Communications Act was enacted in 1934. The Commission during the early
period of CATV took the position that it had no power to regulate it, and
unsuccessfully sought a congressional grant of authority
• then beginning in 1960 it gradually asserted authority to regulate,
and it finally issued elaborate rules, pursuant to which it issued an
order restricting expansion of a particular CATV service. The Ninth
Circuit struck down the order as the commission lacked authority
to regulate CATV but the SC unanimously reversed
• The Court found the necessary authority in a provision that the Act
was applicable to "all interstate and foreign communication by
wire or radio," and in a requirement that the Commission
endeavor to "make available.., to all the people of the United
States a rapid, efficient, Nation-wide, and world-wide wire and
radio communication services”, even though the Court granted
that "Certainly Congress could not in 1934 have foreseen the
development of community antenna television systems."
• the authority to regulate CATV was "restricted to that reasonably ancillary to
the effective performance of the Commission's various responsibilities for
the regulation of television broadcasting. The Commission may, for these
purposes, issue 'such rules and regulations and prescribe such restrictions
and conditions, not inconsistent with law,' as 'public convenience, interest,
or necessity requires.
• the reality seems abundantly clear that the Commission has power to
regulate CATV in any reasonable way it finds to be in the public interest. The
resulting law stems from the Commission, not from Congress and not from
the courts, except that congressional committees may supervise and the
courts may keep the Commission within constitutional and statutory
limitations. The congressional power has been effectively delegated to the
Commission, without meaningful standards.
American Trucking Associations, Inc. v Atchison,
Topeka & Santa Fe Railway

• this case dealt with the Interstate Commerce

Commission’s regulation of the “piggyback”
system (trailer on flatcar). The Commission’s
policy for 25 years had been to interpret the
Interstate Commerce Act and Motor Carrier Act as
withholding power to require railroads to carry
the trailers or containers of their competitors, the
motor carriers. During that period the ICC
unsuccessfully sought authorisation from
Congress so to require. The Commission assumed
the necessary power and issued comprehensive
rules. The Court held, with seemingly the greatest
of ease, that the Commission had the necessary
authority, including the authority to change its
position
• Congress hadn’t even dealt with the subject yet
the regulator’s policy was upheld
Permian Basin Area Rate Case

• From the time the Natural Gas Act was enacted in 1938, the
Federal Power Commission assumed that it had no authority to
regulate sales by independent producers to interstate pipelines.
But the SC held in Phillips Petroleum Co. v Wisconsin, that the
Commission had such authority.
• Then, with no statutory guides other than the term “just and
reasonable”, the Commission in 1960 started a program for fixing
maximum rates for each of the major producing areas. The statute
contained nothing about the area rate fixing. The Court held that
area rate fixing was not inconsistent with the statute, that it was
constitutional…
• The Court even explicitly acknowledged that "neither law nor
economics has yet devised generally accepted standards for the
evaluation of rate-making orders." The Court went on to create its
own law as to the criteria for review-whether the Commission
abused or exceeded its authority, whether each of the order's
essential elements was supported by substantial evidence, and
"whether the order may reasonably be expected to maintain
financial integrity, attract necessary capital, and fairly compensate
investors for the risks they have assumed, and yet provide
appropriate protection to the relevant public interests, both
existing and foreseeable.“

• Davis – ‘If the statute lacks the criteria for area rate regulation, the
Commission must invent them, and the Court will then invent the
guides for judicial review of what the Commission establishes!’
• "We are, in the absence of compelling evidence that such was
Congress' intention, unwilling to prohibit administrative action
imperative for the achievement of an agency's ultimate purposes.”

• ‘Of course, even though in each of the three cases no power over the
specific subject matter had been expressly delegated, and even though
no meaningful standards were applicable to the specific subject matter
in any of the three instances, still the established framework of
regularized procedural protections and judicial review was necessarily
a major force in each of the three cases. Within such a framework, the
exercise of delegated power on vital subjects without meaningful
standards may be good government. At all events, the Supreme Court
shows very clearly that it thinks it is’
2. Why the Non-Delegation Doctrine Has Failed

• delegation without meaningful standards a necessity for today’s

governments at all levels
• A modern regulatory agency would probably be an impossibility if power
could not be delegated with vague standards. Typically, a regulatory agency
may decide many major questions that could not have been anticipated at
the time of the statutory enactment; typically, legislators are unable to write
meaningful standards that will be helpful in answering such major questions;
and typically, the protections lie much less in standards than in frameworks
of procedural standards plus executive, legislative, or judicial checks
• many egs cited to show that the reason for committing major policy
questions to the executive’s discretion was that someone had to answer
then, the courts were ill-equipped to do so, and Congress was neither
equipped nor willing.
• Although Congress could not conceivably anticipate all the major
policy questions, it could conceivably legislate on each question
as it arose. But Congress has neither time nor inclination for
that…

4. Judicial Acquiescence in Administrative Exercise of Ungranted

Power, Without Safeguards or Standards and in Contravention of
Legislative Intent

• the ungranted and usually uncontrolled power of selective

enforcement
• ‘The courts keep repeating and repeating that the exercise of delegated
power must be guided by meaningful safeguards even when the delegated
power is carefully circumscribed and even when the intent to delegate is
based upon a fully-considered judgment that the delegation is necessary
and desirable, but at the same time the same courts acquiesce in the
assumption by police, prosecutors, regulatory agencies, licensing agencies,
and other administrators of the enormous power of selective
enforcement…’
• The discretionary power to enforce or not to enforce is one of the most
crucial powers of all, even though typically unprotected either by standards
or by safeguards or by judicial review
• when the evidence against a potential respondent is clear, the choice of the
enforcement officer to act or not to act may be the only one that counts
• courts acquiesce when a prosecutor enforces one statute but not another
• ‘The kind of injustice that is easiest to identify as injustice may be unequal
treatment of like cases, or treatment of one whose offence is greater more
favourably than one whose offence is less. For instance, if A is much more
deserving of prosecution than B, if carrying out the legislative will clearly
requires the prosecution of A, and if equal justice is flagrantly violated by
prosecuting B and letting A go, the prosecuting agencies, under the
established system in which the courts customarily acquiesce, are
nevertheless typically free to prosecute B but not A. The failure to prosecute
A is not a defence in B’s case, even if the denial of equal justice is flagrant,
even if it is motivated by political or personal or other ulterior influence, and
even if the failure to prosecute A is in direct contravention of what the
legislative body clearly intended. Typically, the discretionary determination
to prosecute B but not A is unguided by standards and unprotected by
safeguards, and yet it is almost always judicially unreviewable.’
5. How to Alter the Non-Delegation Doctrine to Make it Effective And Useful

(a) the purpose of the non-delegation doctrine should no longer be either to

prevent delegation or to require meaningful statutory standards; the
purpose should be the much deeper one of protecting against unnecessary
and uncontrolled discretionary power
[The courts should recognise that administrative legislation through the superb
rule-making procedure marked out by the Administrative Procedure Act often
provides better protection to private interests than congressional enactment of
detail];
(b) the exclusive focus on standards should be shifted to an
emphasis more on safeguards than on standards

[For instance, if one administrator in exercising discretionary power

without hearings uses a system of open findings, open reasons, and
open precedents, but another who is also acting without hearings
never states findings or reasons and never uses precedents as a
guide, the delegation to the first administrator is much more
deserving of judicial support than the delegation to the second]
(c) when legislative bodies have failed to provide standards, the
courts should not hold the delegation unlawful but should require
that the administrators must as rapidly as feasible supply the
standards

[the crucial consideration is not what the statute says but what the
administrators do. The safeguards that count are the ones the
administrators use, not the ones mentioned in the statute. The
standards that matter are the ones that guide the administrative
determination, not merely the ones stated by the legislative body.
The test should accordingly be administrative safeguards and
standards, not statutory safeguards and standards.]
[When an administrator is making a discretionary determination
affecting a private party, standards which have been adopted through
administrative rule-making are just as effective in confining and
guiding the discretionary determination as would be standards stated
in the statute. They are not only as effective but in one important
aspect they are better. The weakness of a judicial requirement of
statutory standards is that legislators are often unable or unwilling to
supply them. The strength of a judicial requirement of administrative
standards is that, with the right kind of judicial prodding, the
administrators can be expected to supply them … the objective can
be better attained through judicial insistence that administrators
create the standards through rule-making than by judicial insistence
upon statutory standards…]
d) the non-delegation doctrine should gradually grow into a broad
requirement extending beyond the subject of delegation – that officers
with discretionary power must do about as much as feasible to structure
their discretion through appropriate safeguards and to confine and guide
their discretion through standards, principles, and rules;

[the idea opens the way for courts to give more attention to the manner in
which administrators confine and structure their discretionary power. The
requirement of administrative standards will and should naturally grow into a
somewhat larger requirement – that administrators must do what they
reasonably can do to develop and to make known the needed confinements of
their discretionary power though not only standards but also principles and
rules. In other words, the non-delegation doctrine will evolve into a broad
system of judicial protection against unnecessary and uncontrolled
discretionary power.]
e) the protection should reach not merely delegated power but also such
undelegated power as that of selective enforcement

6. The Future – Non-Delegation, Due Process, And Common Law

‘As the courts shift the non-delegation doctrine from a requirement of

statutory standards to a requirement of administrative standards and
safeguards, then shift further to a broad requirement that administrators do
what they reasonably can do to structure and confine their discretionary
powers through safeguards, standards, principles, and rules, and as that
requirement in turn is extended to apply to the huge powers of initiating and
prosecuting, including selective enforcement, what has started out as a non-
delegation doctrine will grow into something that will reach well beyond
delegation. The non-delegation doctrine will merge with the concept of due
process and may perhaps move from a constitutional base to a common-law
base.’
‘in the longer term, perhaps the constitutional base will give way to a
common-law base. Either way, the reality will be that the law
requiring administrative development of standards and safeguards to
control discretionary power will be judge-made law. A good deal of
our administrative law, much more than is usually realized, is
common law. The uncodified law requiring administrative findings,
for instance, is almost entirely common law, as is a good deal of the
law of judicial review of administrative action. Probably the law the
courts will fashion to require administrators to develop standards,
principles, and rules to confine discretionary power should be
subject to legislative change; if so, the courts might well regard it as
common law rather than as constitutional law.’
 Judicial Control of Subordinate Legislation

State of Tamil Nadu v Hind Stone and others, (1981) 2 SCC 205

Section 15 of the Mines and Minerals (Development and

Regulation) Act, 1957:
‘(1) The State Government may, by notification in the Official
Gazette, make rules for regulating the grant of quarry leases,
mining leases or other mineral concessions in respect of minor
minerals and for purposes connected therewith’
Rule 8-C of the Tamil Nadu Minor Mineral Concession Rules, 1959:

‘8-C. Lease of quarries in respect of black granite to Government

Corporation, etc. – (1) Notwithstanding anything to the contrary contained in
these Rules, on and from 7th December, 1977 no lease for quarrying black
granite shall be granted to private persons.
(2) The State Government themselves may engage in quarrying black granite
or grant leases for quarrying black granite in favour of any corporation wholly
owned by the State Government:
Provided that in respect of any land belonging to any private person, the
consent of such person shall be obtained for such quarrying or lease.’

Rule 9 further provided for the renewal of leases by the Government

• prohibition is not contemplated in reguleation u/s 15: Word “regulation” has not got
that rigidity of meaning as never to take in “prohibition”. In modern statutes
concerned as they are with economic and social activities, “regulation” must of
necessity, receive so wide an interpretation that in certain situations, it must exclude
competition to the public sector from the private sector. More so in a welfare State.
Much depends on the context in which the expression is used in the statute and the
object sought to be achieved by the contemplated legislation.

• Each case must be judged on its own facts and in its own setting of time and
circumstances and it may be that in regard to some economic activities and at some
stage of social development, prohibition with a view to State monopoly is the onlyy
practical and reasonable manner of regulation.

• The Mines and Minerals (Development and Regulation) Act aims at the conservation
and the prudent and discriminating exploitation of minerals and prohibiting of leases
in certain cases is part of the regulation contemplated by Section 15 of the Act
‘An application for the renewal of a lease is, in essence an application for
the grant of a lease for a fresh period. Rule 9 makes it clear that a renewal
is not to be obtained automatically, for the mere asking …

If as a rule of experience gained after watching the performance of private

entrepreneurs in the mining of minor minerals it is decided to stop grant of
leases in the private sector in the interest of conservation of the particular
mineral resource, attainment of the object sought will be frustrated if
renewal is to be granted to private entrepreneurs without regard to the
changed outlook. Therefore, Rule 8-C is attracted in considering
applications for renewal of leases also, besides in considering applications
for grant of leases in the first instance.’
Khoday Distilleries Ltd. and others v State of Karnataka and others, (1996)
10 SCC 304

The Karnataka Excise Act, 1965 provides for the levy of duties on the
manufacture, transport, purchase and sale, import and export of liquor and
intoxicants. In the exercise of the rule-making power conferred on the State
under the Karnataka Excise Act, 1965, several rules were framed by the State.

Rule 3(11) of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules,
1968 provided that a distributor licence shall be granted by the Excise
Commissioner for the whole of the State or any part thereof to deal in the
products of all distilleries, breweries or wineries in the State or to import
liquor from outside the State for the purpose of distribution or sale within
the State or any part of it, as may be specified in the licence.
The licensee was required to establish not less than one depot in each district within
the State or within that part of the State where it proposed to distribute or sell such
liquor.

More importantly, the rule provided that a distributor licence shall be issued only to
such company owned or controlled by the State Government as the State
Government may specify.

Similar provisions were found inserted in other Rules made by the Government. As a
result, a licensee either for manufacture or sale of liquor was prohibited from selling
liquor to anyone other than the holder of a distributor licence. And the holder of such
a licence could only be a company owned or controlled by the State Government,
specified under the Karnataka Excise (Sale of India and Foreign Liquors) Rules, 1968.
The State Government had specified Mysore Sales International Ltd. (MSIL) and
granted it the distributor licence.
One of the grounds for challenge was that the Rules were arbitrary,
unreasonable, and caused undue hardship, and, therefore, violated
Article 14 of the Constitution.

The court noted at the outset that what was being challenged here under
Article 14 was ‘not executive action but delegated legislation. The tests of
arbitrary action which apply to executive actions do not necessarily apply
to delegated legislation. In order that delegated legislation can be struck
down, such legislation must be manifestly arbitrary; a law which could
not be reasonably expected to emanate from an authority delegated with
the lawmaking power.’
‘In the case of Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v
Union of India and Ors., [1986] 159 ITR 856 (SC) this Court said that a piece
of subordinate legislation does not carry the same degree of immunity
which is enjoyed by a statute passed by a competent legislature. A
subordinate legislation may be questioned under Article 14 on the ground
that it is unreasonable; “unreasonable not in the sense of not being
reasonable, but in the sense that it is manifestly arbitrary”…

…Drawing a comparison between the law in England and in India, the

Court further observed that in England the Judges would say, “Parliament
never intended the authority to make such Rules; they are unreasonable
and ultra vires”. In India, arbitrariness is not a separate ground since it will
come within the embargo of Article 14 of the Constitution. But
subordinate legislation must be so arbitrary that it could not be said to be
in conformity with the statute or that it offends Article 14 of the
Constitution.’
‘In the present case, therefore, we must examine whether there is any manifest
arbitrariness in prescribing a distributor licence which can be granted only to a
company owned by the State: and in compelling the appellants to sell their product to
the distributor.’

‘The appellant have pointed out that the amendments must be considered arbitrary
because they cause undue hardship to all those who are concerned with the
manufacture and sale of liquor. They point out that although the manufacturers are
obliged to sell their commodity to the MSIL, there is no corresponding obligation cast
on the MSIL to buy the liquor manufactured by the manufacturers in the State of
Karnataka. In the absence of such an obligation on the MSIL to buy the liquor, it can
well happen that MSIL may act arbitrarily or capriciously and may purchase or not
purchase liquor from the manufacturers at its own sweet will. This would seriously
affect the business of all those engaged in the manufacture and sale of liquor.
‘This apprehension does not appear to be justified. In the Statement of
Objections on behalf of the State Excise Commissioner which were filed before
the High Court of Karnataka, the respondents have explained in paragraph 16
that it is not correct to state that the Government company is at liberty to
purchase or not to purchase the liquor produced by the petitioners. It is bound
to purchase the liquor if there is demand from the wholesalers. Even otherwise
it has been submitted that proper guidelines will be issued to the Government
company in this behalf.’

‘The Government company is expected to act bona fide and with responsibility
and it is not correct to contend that the Government agency will be interested
only in a particular manufacturer. This submission has considerable force. What
is more important, during the period that these appeals were pending before
us, MSIL has not merely established several depots but has carried on
distribution of liquor in the State of Karnataka on a large scale.’
‘Learned Counsel appearing for the respondents have stated before us that MSIL receives
orders for supply from various purchasers. These orders specify the brand of liquor and the
company from which the supplies are required. Accordingly MSIL places orders with the
concerned companies for the brands of liquor which are demanded by their purchasers.

It is on the basis of these demand requisitions received by MSIL that MSIL places orders. There
is, therefore, no question of any hardship being caused to the appellants by reason of the fact
that their sales have to be channeled through an intermediary. Depending upon the orders
received by the MSIL, it in turn, places orders with the suppliers or manufacturers concerned.
The business activity of the appellants cannot, therefore, be said to be curtailed in any
manner. Nor can there be any hardship on the appellants.’

‘Once the Rules oblige the manufacturers to supply their product only to the company holding
the distributor licence, a corresponding duty is cast on the distributor to place orders with the
suppliers concerned whenever demand for a particular product is received by it’
‘The second ground of hardship which is pointed out relates to excise duty. Under the
Karnataka Excise (Excise Duties and Privileges Fee) Rules, 1968 a rebate in excise duty is
given in respect of liquor which is either exported outside India or is exported to another
State within India. This makes the liquor sold outside the State or exported considerably
cheaper since it bears less incidence of excise duty.’

‘Under the present scheme, however, all these sales are converted into local sales
because the sale must be made to MSIL who, in turn, will either export it, if it has
received an export order, or will export it to a place within India but outside the State.‘

‘In both these cases, since the first sale will be within the State to MSIL, a substantial
rebate in excise will be lost and the goods manufactured by the appellants will become
far more expensive and, therefore, will become much less competitive in the outside
market. There is a similar provision relating to rebate in sales-tax which also the
appellants will lose.’
‘There is no doubt that this will cause some hardship to the appellants. The fact,
however, remains that any concession which is granted by the State for export sales or
inter-state sales is a matter of policy. Granting of such concession or absence of such
concession cannot make the rule itself manifestly arbitrary or unreasonable.’

‘If the appellants are aggrieved by the existing Rules or would like a similar concession to
be extended to sales which are to be made to MSIL in respect of export orders or orders
for supply outside the State received by it, it is open to them to make a suitable
representation to the State Government.’

‘The absence of availability of such a concession, however, cannot make the Rules
arbitrary or violative of Article 14. All manufacturers and suppliers within the State of
Karnataka are governed by the same Rules and will, therefore, have to pay the same
taxes. All persons who are similarly situated are similarly affected by the amended Rules.
There is, therefore, no discrimination under Article 14 in its traditional sense.’
‘It was also submitted before us that the Rules must be considered manifestly
arbitrary because the avowed purpose of formulating the amended Rules is
to stop evasion of excise. In the counter statement filed by the Government
of Karnataka before the High Court of Karnataka it has set out the object of
the amendment. The affidavit states. "The impugned Rules have been made
with the sole object of preventing leakage of excise revenue and, therefore,
they are reasonable restrictions within the meaning of Article 19(6)." It is
submitted before us that such evasion could have been checked by other
means which would have been more beneficial to or less hard on the
appellants.

How such evasion is to be checked, however, is a matter of policy. So long as

the policy is formulated in the amended Rules is not manifestly arbitrary or
wholly unreasonable, it cannot be considered as violative of Article 14. Here
is, in the present case, no self-evident disproportionality between the object
to be achieved and the Rules which have been framed.’
‘It was lastly submitted that MSIL ought not to have been
nominated for a distributor licence because it is not competent to
discharge its obligations and does not have the necessary
infrastructure. This plea was raised before the Karnataka High
Court at a time when MSIL had not started functioning. It is now a
fully functional authority. MSIL has stated that it has a large
number of depots in various districts of the State and is already
handling very substantial business. This plea, therefore, merits no
further consideration. In any event, some problems with the
discharge of its duties by MSIL will not render the amended Rules
providing for a distributor licence arbitrary or violative of Article
14.’