DOCTRINE OF EXCESSIVE DELEGATION

As laid down in Delhi Laws Act case restraints on delegation are that legislature should not
delegate its essential legislative function which means laying of policy and enacting it into a
binding rule of conduct. This means that the legislature should lay down standards or policy in
the delegating Act and the delegate may be left free to execute the policy. Thus, in Delhi Laws
Act case, the doctrine of excessive delegation was propounded.

In India, the Courts follow the doctrine of excessive delegation. This doctrine, borrowed from
U.S.A.,1 means that an Indian legislature cannot delegate unlimited legislative power to an
administrative authority. The advantage of the doctrine is that the courts can declare too broad
delegation of legislative power as excessive and hence invalid.2

It is now well settled by the majority judgment in In Re Delhi Laws Act, 19123 4 that there is a
limit beyond which delegation may not go. As regards the determination of the limit of
delegation, there are two views :.

(1) Legislature can delegate legislative power provided this does not amount to abdication of
essential legislative function; and

(2) Legislature can delegate legislative power provided that it lays down the policy.

(3) Courts have determined the validity of delegation of legislative power on basis of these
principles. The first principle has been applied by the courts only in few cases. In most of cases
the validity of the delegation of legislative power has been examined on basis of legislative
policy.

(a) Legislative policy to be found in Essential Legislative Function

1 Schwartz, Administrative Law, 34-50 (1976) ; Also, Schwartz, American Administrative Law—A Synoptic Survey,
14 Israel L.R. 413-415.
2 See Federal Energy Amin. v. Algonquin,, SNG. Inc., 426 US 458, 559 (1976)
3 AIR 1951 SC 332, 345, 387, 401.
4 AIR 1954 SC 465.
 In a series of cases the Supreme Court has decided that the legislature cannot delegate its
essential legislative function which comprised the formulation of policy and enacting it into a
binding rule of conduct. It means that the legislature must declare the policy of the law, lay down
legal principles and provide standards for the guidance of the delegate to promulgate delegated
legislation, otherwise the law will be bad on account of “excessive delegation”.

 In Raj Narain Singh v. Patna Administration Committee5 Section 3(1) (f) of the
impugned Act empowered the Patna Local Government to apply to Patna any
provision of the Bihar and Orissa Municipal Act, 1922 with such modification as it
may think fit. The Government picked up one section, modified it and applied it to
Patna. The Supreme Court held the delegation invalid on the ground that the power to
pick out a section for application to another area amounts to delegating the power to
change the policy of the Act which is an essential legislative power and hence cannot
be delegated.

 In Harishankar Bagla v. State of M.P.,5 under Section 3 of the Essential Supplies

(Temporary Powers) Act, 1946 the Central Government was authorised to issue an
order for the regulation of production, distribution etc. of essential commodities and
in section 6 it was provided that “an order made under Section 3 shall have effect
notwithstanding anything inconsistent therewith contained in any enactment other
than the Act. Both the provisions were challenged on the ground of excessive
delegation of legislative power. The Supreme Court held section 6 valid on the ground
that it was not a delegation of power to repeal or abrogate any existing law but to
bypass the same where the provisions thereof were inconsistent with the Essential
Supplies (Temporary Powers) Act. The court further said that the legislative policy
was laid down in the Act and therefore, there was no question of excessive delegation.
It sought to bypass difficulty. In this way very broad delegation was given judicial
sanction.

5 AIR 1954 SC 465.

  In Edward Mills, v. State of Ajmer6 the Schedule to the Minimum Wages Act, 1948,
contained a list of industries to which the Act was made applicable by Parliament.

However, appropriate Government was empowered to add any other industry in the said
schedule. The question of application of the provisions of the Act to any industry was left open
to the opinion of the government. Though no norms were laid down for the exercise of such
discretion, Supreme Court held the Act valid. According to the Court, the legislative policy was
enunciated in the Act, namely, to fix minimum wages to avoid the chance of exploitation of the
labour. But, the test for selecting industries to be included in the Schedule, which the court
propounded, was nowhere mentioned in the Act, but was formulated by the court itself to uphold
the Act.7

 In Hamdard Dawakhana v. Union India,8 facts were that Parliament passed the
Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 to control the
advertisement of certain drugs. Section 3 laid down a list of diseases for which
advertisement was prohibited and authorised the Central Government to include in
other diseases in the list. The court held section 3 bad as nowhere had the legislature
laid down any policy for guidance of the Government in the matter of selection of
diseases for being included in the list. After the Delhi Laws Act Case, this is the first
case in which a Central Act was held ultra vires on the ground of
excessive"delegation.

It is submitted that the view taken in this case is not in line with the approach of the Court
because the legislative policy had been laid down in the preamble and title of the Act moreover,
the clear mention of certain diseases in the list could have furnished the standard and criteria for
the selection of other diseases. Such a provision is held void in a ' number of cases. 9 Recently the
Supreme Court has observed in a case that it is not necessary that the legislature should “dot all
i's and cross all the t's of its policy.”10

6 AIR 1955 SC 25.

7 M.P. Jain, Indian Constitutional Law, 1987 p. 78.
8 AIR 1960 SC 554.
9 Edward Mills v. Stale of Punjab, AIR 1955 SC 25 ; Banarasi Das v. State of M.P., AIR 1958 SC 909; Babu Ramv.
State of Punjab, AIR 1979 SC 1475, Brij Sunder v. First Add. Dist. Judge, AIR 1989 SC 572.
10 Per Ranganathan, J. in Ramesh Birch v. Union of India, AIR 1990 SC 560.
 However, in Gwalior Rayon Silk Mfg. Co. v. Asstt. Commissioner,11 the minority judgment
differred with the “policy and guidelines” theory. According to Justice K.K. Mathew, this effort
on the part of Supreme Court to somehow find the legislative policy from somewhere was
undignified for any judicial process. He said that “the hunt by Court for legislative policy or
guidance in the crevices of a statute or nook and cranny of its preamble is not an edifying
spectacle”.

In his concurring judgment Mathew, J. (for himself and Ray C.J.) propounded a new test to
determine the validity of delegated legislation. In his opinion, so long as a legislature can repeal
the enabling Act delegating law making power, it does not abdicate its legislative function and
therefore the delegation must be considered as valid no matter howsoever broad and general the
delegation may be. Relying upon the decisions in Queen v. Burah12 and Cobb v. Kropp13
Mathew, J. observed that a legislature cannot be said to abdicate its legislative function if it could
at any time repeal the legislation and withdraw the authority it had vested in the delegate.

However, the majority led by Justice Khanna did not agree to this “abdication test” and relied on
the already well established test of “policy and guidelines.” Khanna, J. (for himself,
Alagiriswami and Bhagwati, JJ) reiterated that legislature must lay down a policy, principle or
standard for the guidance of delegate. The rule against excessive delegation of legislative
authority flows from the sovereignty of people. The rule contemplates that it is not permissible to
substitute, in the matter of legislative policy, the view of individual officers or other authorities,
however competent they may be, for that of the popular will as expressed by the representatives
of the people.

The view of Mathew, J. would have meant dilution of the doctrine of excessive delegation. The
dangers inherent in such an approach were pinpointed by the majority m this way : If the
Parliament were to enact that as the crime situation in the country has deteriorated, criminal law
to be enforced in the country would be such as is framed by an officer mentioned in the
enactment, can it be said that there has been no excessive delegation of legislative power ? To
say that if the Parliament does not approve the law made by the officer concerned, it can repeal

11 AIR 1974 SC 1660.

12 (1878) 3 AC 889.
13 (1967) AC 141.
the same or Parent Act is no answer. The reason is that after delegating the power Parliament
cannot, in a practical sense, control it through its power of repeal. Nowadays Parliament is too
much under the control of the Executive whose leadership is accepted by the Parliament. Every
law is passed by the Parliament on the initiative of the Executive. It is highly improbable that the
Executive would ever ask Parliament to repeal an enactment delegating legislative power to itself
because it has misused that power.

Nevertheless without referring to the majority in Gwalior Rayon14 Justice Mathew, applied his
own test in N. K. Papiah v. Excise Commissioned15 and validated a very broad delegation of
legislative power. Mathew, J. speaking for an unanimous Court of 3 Judges16 observed that since
the legislature retains the power to repeal the provision delegating the power, there was no
abdication of legislative power. Welcoming this departure, Seervi17 has observed that the
unanimous judgment in Papiahs shows that after 25 years of wandering in the legal maize of its
own creation, the Supreme Court of India, like the Supreme Court of the United States has come
round to the view expressed by the Privy Council in 1878.

(b) Justification of Legislative policy

In the face of Gwalior Rayon (5 Judges Bench decision), the authority of Papiah ruling (3
Judges Bench decision) remains doubtful. It is submitted that the majority opinion given by
Khanna, J. in Gwalior Rayon lays down correct law on the point. His Lordship observed, “we
are also unable to subscribe to the view that if the Legislature can repeal an enactment, as it
normally can,,-it retains enough control over the authority making subordinate legislation and, as
such, it is not necessary for the legislature to lay down legislative policy, standard or guidelines
in the statute.1819

It is interesting to find that once again in Kerala State Electricity Board v. Indian Aluminum
Company the Constitution Bench again approved and confirmed the view taken by the majority
in Gwalior Rayon, however, without referring to Papiah. The relevant point is that Goswami; J.

14 AIR 1974 SC 1660.

15 AIR 1975 SC 1007.
16 Mathew, Krishna Iyer and Goswami JJ.
17 Constitutional Law of India, 1976 Vol. II pp. 1204-05.
18 Gwalior Rayon case, AIR 1974 SC 1660.
19 AIR 1976 SC 1031.
 was one of the Judges in Papiah as well as in Kerala State Electricity Board. In these
circumstances it can be said that in view of Kerala State Electricity Board, Papiah is impliedly
overruled or no longer survives.

However, even thereafter, in Kunjabmu20 also, all the judgments were not considered by the
Supreme Court and the issue was left open as the point was not decided finally. The Court
observed,-;

“We do not wish in this case, to search for the precise principles decided in the Delhi Laws Act
case, nor to consider whether N. K. Papiah v. Excise Commissioner21 beats the final retreat from
the earlier position. For the purpose? of this case we are content to accept the ‘policy’ and
‘guidelines’ theory.22 In view of these pronouncements, the doctrine of excessive delegation
must be regarded well established in India. Accordingly, it is necessary that while delegating
legislative power, the legislature should lay down legislative policy, standards or guidelines for
the delegate to follow. In Kujabmu23 the Supreme Court has stated doctrine of excessive
delegation in the following words :

“The legislature cannot delegate its essential legislative function. Legislate it must by laying
down policy and principle and delegate it may to fill in detail and carry out policy.” 24 the Court
held that the “power to legislate carries with it the power to delegate,” but “excessive delegation
may amount to abdication” and “delegation unlimited may invite despotism uninhibited.”25 26

In a recent case, Parasuraman v. State of Tamil Nadu reiterating these principles and following
the ratio laid down in earlier decisions, the Supreme Court held in Tamil Nadu Private
Educational Institutions (Regulations) Act, 1966 ultra vires. The Supreme Court observed :

“It is well established that determination of legislative policy and formulation of rule of conduct
are essential legislative functions which cannot be delegated. What is permissible is to leave to

20 Registrar Co-op. Societies v, Kunjabmu, AIR 1980 SC 350

21 AIR 1975 SC 1007.
22 Ibid, per Reddy, J.
23 Registrar Co-op. Societies v, Kunjabmu, AIR 1980 SC 350

24 Ibid.
25 Ibid.
26 AIR 1990 SC 40, See also Brij Sunder v. First Addl. Dist. Judge, AIR 1989 SC 572.
 the delegated authority the task of implementing the object of the Act after the legislature lays
adequate guidelines for the exercise of power.”27

- In Quarry Owners Association v. State of Bihar28 the Apex Court has held that when
policy is laid down in the legislation delegating power to the government it cannot be
said to be arbitrary or excessive. The Court further added that accountability of the
State Government to the state legislature is additional check against arbitrary exercise
of power.

Therefore the principle of excessive delegation remains. Delegation of legislative power cannot
go beyond permissible limits e.g., essential legislative function, determination of legislative
policy, and formulation of rule of conduct.

In the case of Rajnarain Singh v. Chairman, P.A.C. , the impugned Act had empowered the local
government to extend to Patna the provisions of any section ofthe Bengal Municipal Act, 1884
“subject to such restrictions and modifications as the local government may think fit.” The
Government of Bihar picked Section 104 out ofthe Act, modified it and extended it in its
modified form to the town of Patna. Both the Act and the notification were challenged on the
ground oftransgressing the constitutional limits of permissible delegation. The Court held that
while power can be delegated to extend the whole or any part ofthe Act, and also to pick out a
section and apply the same to the new area, the legislature cannot permit an executive authority
to modify either existing or future laws in any essential features. Changing the policy of the law
would amount to modification in the essential features of the Act In the instant case, the Court
held the notification invalid since the extension of only one section amounted to change in the
legislative policy embodied in the Act. In Edward Mills Co. v. State ofAjmer68, the Supreme
Court was invited to invalidate the delegation of power to vary the schedule forming part ofthe
impugned Act. The Act authorised the setting up of minimum wages for certain specified
industries by notification. It was argued that there was no legislative policy to guide the officials
charged with the duty of adding to the list of industries covered. The Court held that the

27 Ibid; See also Jackson, R.M. Judicial Review of Legislative Policy, (1955) 18 Mad. L. Rev. 571
28 AIR 2000 SC 2870.
legislative policy, which was to guide in the selection of industries, was clearly indicated in the
Act, namely, to avoid exploitation of labour by setting minimum wages in industries where due
to unequal bargaining power or other reasons wages were inadequate. The Court emphasized the
necessity to allow flexibility for adaptation to local conditions. The Edward Mills case is further
to be noted for clarifying two points. First, it concedes that there is an element of delegation in
every case where the legislature empowers an outside authority to do something which it might
do itself. The fiction that there is no delegation oflegislative powers in what may be called
conditional or contingent legislation is thus rejected. Secondly, the rule that primary or essential
legislation is to be retained by the legislature is applicable to all types of delegated legislation.
The Court said: “Whether a provision like this strictly comes within the description of what is
called ‘conditional legislation’ is not very material, the question is, whether it exceeds the limits
of permissible delegation.”