LEGISLATIVE POWERS OF

ADMINISTRATION
UNIT 2
 INTRODUCTION

 What are legislative powers of Administration?

 Does this contradict the principle of separation of powers?
 What is the need for ‘delegated legislation’?
 What are the various types of rule- making power?
 How rule making power is put under control?
 What do you mean by the ‘doctrine of ultra vires’?
 Can essential legislative functions be delegated?
 What are Parent Acts?
 Are delegated legislation part of the Parent Act?
 What is the doctrine of ‘Proportionality’?
NEED FOR ADMINISTRATIVE RULE
MAKING

 Emergence of the concept of Welfare State

 Technical Nature of the Legislations

 Viability and scope for experimentation

 Administrative technicalities and overburdening involved in law making by the legislature

 Crisis Legislation

 When discretion is required in government action

 CONSTITUTIONALITY OF ADMINISTRATIVE
RULE MAKING
Delegated Legislation
That which proceeds from any authority other than sovereign power and is therefore dependent for its
continued existence and validity on superior or supreme authority.”

When is delegated legislation permissible?

It is permissible only when the legislative policy is adequately laid down and the delegate is empowered to
carry out the policy within the guidelines given by the legislature.
https://tcw.nic.in/Acts/MTP-Act-1971.pdf
What is legislative policy?
The legislative model used to tackle a certain issue via legislation. It is reflected in the preamble, objectives
and scheme of the Act, factual and circumstantial background
CONTN….

 Delegation of legislative power is mandatory

 There has to be limit on the legislative powers of delegation
What are the permissible limits of delegation?
LIMITS OF DELEGATED LEGISLATION

 Pre-Independence Position
R v. Burah ILR (1879) 4 Cal 172
i. Only conditional legislation is permitted
ii. No limits on delegation of legislative powers.
Jatindra Nath Gupta v. Province of Bihar AIR 1949 FC 175
Power to modify an Act and extending the life of the Act is not an essential legislative
function.
Excessive Delegation- What are the limits of Delegation : Is it the American Model or the
British Model that India is following?
In England, parliament has conferred wider legislative powers on the executive. In US due to
the doctrine of separation of powers, legislative powers cannot be delegated and there is
distinction between “legislative powers” and the power to “fill in the gaps.”
 In Re Delhi Laws Act, 1912 AIR 1951 SC 332
Presidential Reference- Article 143 of the Indian Constitution

 Section 7 of Delhi Laws Act, 1912- Power was extended to the provincial government for extending
of Laws to Delhi Area any law in force in British India.
 Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947delegated power to the province of
AM any law in force in any other province with modifications and restrictions.
 Section 2 of the Part C States (Laws) Act, 1950- The Central government could extend to a Part C
state any law in force in a Part A State (and not by the Parliament) at any time (after 1950 as well)
and even modify the law before extension. If there is any existing law it could be repealed or
modified by the Government when the law was being extended.
 MAJOR HIGHLIGHTS

1. That part of it was bad which authorised the Government to repeal a law already in force in
a Part C.
2. The power to effect modification in a State Law in its application to a Part C State
envisaged only such modifications as did not change the underlying policy of the sought to
be extended.
The Delhi Laws Act case achieved two ends:
1. It legislated delegation of legislative power by the Legislature to administrative organs
2. It imposed an outer limit on delegation by the Legislature. No Indian legislature can
delegate unlimited legislative power to the Administration. If delegation is too broad, the
Courts can declare the same as excessive and hence invalid.
CONTN….

 The Doctrine Separation of powers is not a part of the Indian Constitution

 Indian Constitution was not an agent of anybody and therefore, the doctrine of delegatus
non protest delegare has no application.
 Parliament cannot abdicate or efface or abdicate itself by creating a parallel legislative
body.
 Power of delegation is ancillary to power of delegation
 The limitation on delegation of power is that the legislature cannot part with its essential
legislative power that has been expressly vested in the Constitution. Essential legislative
power means laying down the policy of the law and enacting that policy into a binding rule
of conduct.
 Two approaches

First Approach
 Indian Legislature could delegate its power to any extent subject to the limit that it did not efface
itself, r abdicate its powers which meant that the legislature should never give up its control over the
delegate that it must not destroy its own legislative power; that it must retain in its hands the ultimate
control over the authority so as to be able to withdraw the delegation whenever the delegate did
something wrong or foolish.
Second Approach
 The legislature should not delegate the essential legislative function which comprised of the
formulation of policy and enacting it into a binding rule of conduct. It means that the legislature
should lay down standards or policy in the delegating Act and the delegate may be left with the
power to execute the policy.
 Delegation is valid only when it is confined to legislative policies and guidelines. A delegate must
exercise its jurisdiction within the four corners of its delegation.
 THE DOCTRINE OF EXCESSIVE
DELEGATION
“The legislature can delegate its legislative power subject to its laying down the policy. The legislature must
declare the policy of the law, lay down legal principles and provide standards for the guidance of the
delegate to promulgate delegated legislation, otherwise the law will be held bad on account of “excessive
delegation. In applying the test of delegated legislation the courts also examine the procedural safeguards
contained in the Act against the misuse of power.”
  Gwalior Rayon Mills v. Asst. Commissioner of Sales
Tax
 In this case, the question of the extent to which the executive could exercise functions delegated to
it by the legislature in its role as a tax collector was given some finality.

MATHEW J: “So long as the Parliament retains the power to repeal the delegating provision, it does
not abdicate its legislative function and therefore there should not be objection to delegation howsoever
broad its extent.”

KHANNA J: “Our constitution makers have entrusted the power of delegation to the representatives of
the people, so that the said power may be exercised not only in the name of the people but also by the
people speaking through their representatives. The rule against excessive delegation of the legislative
authority flows from and is a necessary postulate of the sovereignty of the people. The rule
contemplates that it is not permissible to substitute in the matter of legislative policy the views of the
individual officers or other authorities, however competent they may be for that of the popular will as
expressed by the representatives of the people.”
 VALIDITY OF DELEGATING PROVISION
 SKELETON LEGISLTION
Case: Ravi Sankar Bagla v. State of Madhya Pradesh (1954)
https://www.lawyerservices.in/Harishankar-Bagla-and-Another-Versus-State-of-Madhya-Pradesh-1954-05-14
 POWER OF INCLUSION AND EXCLUSION, AMENDMENT OF SCHEDULE
Case: Edward Mills Co. v. State of Ajmer (1955), Humdard Dawakhana Wakf v. Union of India 1960
https://www.lawyerservices.in/Edward-Mills-Company-Limited-Beawar-and-Others-Versus-State-of-Ajmer-and-Another-1954-10-14
 POWER OF EXCEMPTION AND MODIFICATION OF THE STATUTE
Case: AN Parasuraman v. State of TN, Baburam Jagdish Kumar & Co. v. State of Punjab (1979)
https://www.lawyerservices.in/A-N-Parasuraman-and-Others-Versus-State-of-Tamil-Nadu-1989-10-05
https://www.lawyerservices.in/Hamdard-Dawakhana-Wakf-Lal-Kuan-Delhi-and-Another-Versus-Union-of-India-and-Others-1959-12-18
 REMOVAL OF DIFFICULTIES
Case: Central Inland Water Corporation v. BN Ganguly (1986)
https://indiancaselaws.wordpress.com/2013/01/29/central-inland-water-v-brojo-nath-ganguly-and-anr/
 POWER TO IMPOSE TAX
Case: Orient Weaving Mills v. Union of India (1963)
https://www.lawyerservices.in/Orient-Weaving-Mills-Private-Limited-Versus-Union-of-India-1962-02-28
THANK YOU……