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Constitutionality of
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Delegated Legislation
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Samridhi M | Jul 03, 2023 | 6 min read 17224 0
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TABLE OF CONTENTS

Introduction

Meaning of Constitutionality of Delegated Legislation

Need for Constitutionality of Delegated Legislation

Constitutionality of Delegated Legislation in the Pre-Independence Era

Constitutionality of Delegated Legislation in the Post-Independence Era

Conclusion

Introduction

Delegated legislation refers to the transfer of rulemaking authority from the

legislature to other administrative bodies or agencies. In India, the
constitutionality of delegated legislation has been a subject of scrutiny.

The concept of delegated legislation can be examined in two phases: pre-

independence and post-independence. This post explores the constitutionality of
delegated legislation in India by analyzing relevant case laws and discussing the
implications for legislative powers.

Meaning of Constitutionality of Delegated Legislation

The constitutionality of delegated legislation in India refers to the assessment of

whether the transfer of rulemaking authority from the legislature to other
agencies or administrative authorities complies with the provisions and principles
laid out in the Indian Constitution.

It involves examining the legal framework and restrictions within which the
delegation of legislative powers operates. The aim is to ensure that the
delegation process adheres to constitutional principles, such as separation of
powers, checks and balances, and the protection of fundamental rights.

The constitutionality of delegated legislation is a crucial aspect of governance, as

it determines the legitimacy and validity of laws and regulations enacted by
entities other than the legislative body.

In India, the constitutionality of delegated legislation is subject to judicial scrutiny.

The courts play a vital role in interpreting the provisions of the Constitution and
determining the extent and limits of delegation. They assess whether the
delegation of legislative powers is within the constitutional framework and
complies with the principles of reasonableness, non-arbitrariness, and fairness.

The constitutionality of delegated legislation hinges on striking a balance

between granting flexibility to administrative bodies in rulemaking and ensuring
that the exercise of delegated powers is accountable, transparent, and consistent
with the constitutional values and objectives.

By upholding the constitutional principles and providing legal safeguards, the

assessment of the constitutionality of delegated legislation safeguards the
integrity and democratic foundations of India’s legislative framework.

Need for Constitutionality of Delegated Legislation

Firstly, the Constitutionality of Delegated Legislation helps preserve the

balance of power between different branches of government. In many
democratic countries, legislative bodies delegate their authority to
administrative agencies or bodies to create detailed rules and regulations
within the framework established by the Constitution.
This delegation allows for efficient and specialized decision-making in areas
requiring technical expertise. However, it is crucial to ensure that these
delegated laws do not exceed the boundaries set by the Constitution. By
subjecting delegated legislation to constitutional scrutiny, the balance of
power is safeguarded, preventing any one branch, particularly the executive
branch, from accumulating excessive authority and potentially abusing it.

Secondly, the Constitutionality of Delegated Legislation serves as a

safeguard for protecting individual rights. Delegated legislation can
significantly impact the lives of citizens, covering various aspects such as
labor rights, environmental standards, consumer protection, and more.
By ensuring the constitutionality of these regulations, the rights and liberties
enshrined in the Constitution, such as freedom of speech, privacy, equality,
and due process, are safeguarded. The Constitutionality of Delegated
Legislation provides a legal framework for citizens to challenge any
provisions that infringe upon their constitutional rights. This mechanism
fosters accountability and helps prevent the erosion of individual liberties.

Lastly, the Constitutionality of Delegated Legislation contributes to upholding

the rule of law. The rule of law requires that laws be clear, predictable, and
accessible to all citizens.
When delegated legislation conforms to the Constitution, it ensures legal
certainty and consistency. By subjecting delegated laws to constitutional
scrutiny, it prevents arbitrariness, discrimination, or contradictions that could
undermine the rule of law.

Constitutionality of Delegated Legislation in the Pre-

Independence Era

In the case of Queen

Queen v.v. Burah
Burah (1878)
(1878), the Privy Council authorized conditional
legislation by transferring legislative powers to the executive branch. This
allowed the administration of civil and criminal justice in a territory to be
entrusted to officials appointed by the Lieutenant-Governor.

However, the Privy Council emphasized that this was not delegated legislation
but an example of an exceptional legislative authority where local administrative
bodies determined the local application of state legislation based on necessity.

In the case of King

King v.
v. Banwari
Banwari Lal
Lal Sharma
Sharma, the Privy Council again applied the
concept of conditional legislation. The validity of the Governor-General’s
Emergency Ordinance was challenged as an attempt to usurp power from the
Provincial Government.

The Privy Council ruled that this was not delegated legislation but a typical
legislative authority where a local administrative body decided the applicability of
a statute’s provisions based on necessity.

Constitutionality of Delegated Legislation in the Post-

Independence Era

The Indian Constitution does not explicitly address the concept of delegated
legislation, but it can be inferred through the interpretation of Article
Article 312
312. This
article empowers the Rajya Sabha to create a fresh division of the All India
Service, indicating the delegation of legislative powers to the newly appointed
members of the service.

The Supreme Court of India, in the case of Raj

Raj Narain
Narain Singh
Singh v.v. Chairman,
Chairman,
Patna
Patna Administration
Administration Committee
Committee (1954)
(1954), upheld the delegation of power
conferred to the executive body by the legislative body. This case empowered
the local government to extend provisions of the Bengal Municipality Act.

It established that while there are no express prohibitions on the legislature’s

power to delegate, two constitutional limitations exist: the legislature cannot
delegate its essential legislative functions, and the power conferred on a
subordinate authority or executive body should not suffer from excessive
delegation.

In State
State of
of Sikkim
Sikkim v.
v. Surendra
Surendra Sharma
Sharma, the case emphasized that any rule
issued as a result of authority conferred by the Constitution’s Article 371F is
considered subordinate legislation. This case highlighted the recognition that
certain provisions within the Indian Constitution confer authority for the creation
of subordinate legislation and provide a framework for its constitutionality.

In Hinsa
Hinsa Virodhak
Virodhak Sangh
Sangh v.
v. Mirzapur
Mirzapur Moti
Moti Kuresh
Kuresh Jamat
Jamat, the court
highlighted the requirement of clear evidence of a violation of constitutional
provisions beyond a reasonable doubt for an act to be declared unconstitutional.
This case emphasized the importance of establishing a strong constitutional
basis and meeting the burden of proof when challenging the constitutionality of
an act or legislation.

These case laws collectively shed light on the constitutionality of delegated

legislation in India and provide insights into the principles and limitations
associated with the delegation of legislative powers.

Conclusion

The constitutionality of delegated legislation in India revolves around the

restrictions placed within the constitution on the legislature’s ability to transfer
rulemaking authority. Delegation of legislation aims to empower the government
in dealing with socio-economic challenges promptly.

While the Indian Constitution does not explicitly mention delegated legislation, its
existence can be inferred from relevant case laws and interpretations. The
judiciary plays a crucial role in determining the boundaries of delegated
legislation by applying general principles and constitutional law theories. It is
imperative to strike a balance between granting administrative flexibility and
ensuring the accountability and constitutionality of delegated legislation.

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HOME / CLAT UG / Notes
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Indrasish
Indrasish Majumder
Majumder | Jul 03, 2023 | 8 min read 3675 0

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TABLE
TABLE OF
OF CONTENTS
CONTENTS

Introduction

Amendments under the Indian Constitution

Article 368 of the Indian Constitution

Amendment by Simple Majority ( more than 50%)

Amendment by Special Majority

Amendment by Special Majority and Ratification by States

Amendment of a Fundamental Right

The 24th Amendment Act of 1971

The 42nd Amendment Act of 1976

Introduction

Part XX provides for amendments to the Constitution. Article

Article 368
368 provides for
the power of the Parliament to amend the Constitution. The amending power of
Parliament is not unlimited. It is subject to certain limitations imposed by the
Constitution itself. The Parliament cannot amend the Constitution in a way that
alters the basic structure or fundamental principles of the Constitution.

Amendments under the Indian Constitution

Amendments can be made by Parliament following specific procedures. There are

two types of amendments: those requiring a simple
simple majority
majority and those requiring
a special
special majority
majority.

Simple majority amendments require more than 50% of the members present and
voting in both Houses of Parliament. Special majority amendments need a
majority of the total membership of each House of Parliament and a two-thirds
majority of the members present and voting.

Some amendments also require the ratification of at least half of the state
legislatures. Amendments can be introduced as ordinary bills or special majority
bills depending on the type of majority required. Ordinary bills can be passed by a
simple majority and can be introduced in either House of Parliament. Special
majority bills require a two-thirds majority in each House and need to be passed
separately by both Houses of Parliament.

After passing Parliament, the amendment bill is sent to the President for assent.
The President must give assent to the amendment bill and cannot withhold it. The
power of judicial review allows the Supreme Court to examine the validity of
constitutional amendments. The Supreme Court can declare an amendment
invalid if it violates the basic structure of the Constitution.

Article 368 of the Indian Constitution

The article lays down the authority of Parliament to modify the constitution and
the corresponding process. The inclusion of a provision for amending the
Constitution was intended to address potential challenges that may arise in the
future with respect to the functioning of the Constitution as per the needs of
society. The process of amendment is characterized by a moderate level of
complexity. The amendment of the constitution can be carried out through three
distinct procedures.

Amendment by Simple Majority ( more than 50%)

The proposed manner of amendment suggests that articles of the Constitution

can be modified by Parliament through a simple majority vote, equivalent to the
passing of an ordinary law.

The
The aforementioned
aforementioned articles
articles comprise:
comprise:

Article 5, which pertains to citizenship,

Admission for establishment of new states, formation of news states,

alteration of boundaries, names of existing states.

The abolition of the creation of Legislative councils in a state is stipulated in

Article 69,

The creation of local legislatures for the Council of Ministers or both for union
territory is provided for in Article 239A.

Amendment by Special Majority

All constitutional amendments, excluding those mentioned previously, fall under

this classification and require approval from a majority of the entire membership
of each parliamentary house, as well as a majority of no less than two-thirds of
the members present and voting in that house. DPSP (Part IV) and Fundamental
Rights (Part III) are two important provisions that can be changed by way of
special majority.

Amendment by Special Majority and Ratification by

States

Certain amendments to the Constitution require a special majority, which means

they need to be passed by both Houses of Parliament with a majority of the total
membership and a two-thirds majority of the members present and voting.

Some
Some articles
articles that
that require
require aa special
special majority
majority to
to be
be amended
amended are:
are:

The process of electing the president as outlined in Articles 54 and 55.

The scope of executive authority vested in the Union and state governments
as delineated in Articles 73 and 162 of the Indian Constitution

Articles pertaining to the Judiciary, specifically the Supreme Court (124–147),

the High Court in the states (214–231), and the union territories (241)

The allocation of legislative powers between the central government and

state governments Specifically, in Articles 245 through 255

Any item listed in the Seventh Schedule of the Constitution

The representation of states in the Parliament as stipulated in Article IV

Article 368

Amendment of a Fundamental Right

The issue of whether it is possible to amend fundamental rights under Article

368 was brought before the Supreme Court in 1951 in the case of Shankari
Shankari
Prasad
Prasad v. v. Union
Union of
of India
India.
The present case pertains to the challenge against the legitimacy of the initial
(first) Constitutional Amendment Act that introduced Articles 31A and 31B.
The basis of the challenge is that the aforementioned amendment abrogates
the rights granted under Part III of the Constitution.

As per the ruling of the Supreme Court, the authority to modify the
constitution under Article 368 encompasses a fundamental right.
Additionally, the term “law” mentioned in Article 13, clause 2, pertains solely
to an ordinary law and not a constitutional amendment.

The case of Sajjan

Sajjan Singh
Singh versus
versus the
the State
State ofof Rajasthan
Rajasthan in 1965 involved
a challenge to the constitutional validity of the 17th Amendment Act of 1964.
The Supreme Court upheld the decision rendered in the Shankari Prasad
case.

The case of Golaknath

Golaknath versus
versus State
State of
of Punjab
Punjab inin 1971
1971 once again
involved a challenge to the constitutionality of the 17th Amendment Act,
which had introduced specific state acts into the ninth schedule.
The Supreme Court, in a reversal of its previous rulings in the Shankari Prasad
and Sajjan Singh cases, determined that the Parliament lacks the authority to
curtail or revoke the fundamental rights of citizens.

The application of the doctrine of prospective overruling by the Supreme

Court resulted in a ruling that restricted the decision’s effect to future cases
only. The court asserted that Article 13, clause 2’s definition of a law applies
to constitutional amendments. In the event that an amendment contravenes
any of the fundamental rights, the court is empowered to nullify said
amendment.

The 24th Amendment Act of 1971

Parliament introduced the 24th Amendment Act to address the challenges arising
from the Supreme Court’s ruling in the Golaknath case. This amendment included
the addition of clause 4 to Article 13, which stipulates that an amendment does
not constitute a law.

The constitutional validity of the 24th Amendment Act was contested in the
landmark 1973 case of Kesavananda
Kesavananda Bharati
Bharati v.
v. State
State of
of Kerala
Kerala, which is
commonly referred to as the Fundamental Rights case.

The Supreme Court has ruled that Parliament possesses complete authority
to modify any provision of the Constitution, including Part III. However, it lacks
the authority to alter the fundamental features or structure of the
Constitution.

The
The judges
judges in
in this
this case
case identified
identified certain
certain basic
basic characteristics
characteristics integral
integral to
to
the
the constitution,
constitution, namely:
namely:

The principle of constitutional supremacy is of paramount importance in

ensuring the rule of law and upholding the fundamental values enshrined in a
nation’s constitution.

A republican, democratic, and secular form of government is essential for

promoting the principles of equality, liberty, and justice for all citizens.

The concept of separation of power is a fundamental principle in governance

that seeks to distribute the functions of government among distinct
branches, namely the executive, legislative, and judicial arms, to prevent the
concentration of power in any one branch.

The federal character of the constitution refers to the structural arrangement

of a political system that recognises the existence of multiple levels of
government, with each level possessing a degree of autonomy and authority
over its respective jurisdiction.

The rule of law

The process of judicial review

Democracy is characterised by the conduct of elections that are both free

and fair.

The jurisdiction of the Supreme Court as stipulated in Article 32 is a topic of

interest.

The 42nd Amendment Act of 1976

In response to the constraints placed by the judiciary on the amending authority

of the Parliament in the Keshav Nand Bharti case, the Parliament introduced the
42nd Amendment Act, which incorporated clauses 4 and 5 into Article 368.
These provisions effectively eliminated all restrictions previously imposed on
Parliament by the Supreme Court.

In the case of Minerva Mills v. Union of India, 1980, the Supreme Court invalidated
clauses 4 and 5 of Article 368 on the grounds that they undermined a
fundamental aspect of the constitution.

In this instance, the Supreme Court ruled that the following elements are also
considered to be part of the fundamental framework of the Constitution:

The Parliament’s ability to modify the constitution is restricted.

The achievement of harmony and balance between fundamental rights and

the Directive Principles of State Policy (DPSP) is a crucial aspect of
constitutional governance.

Only in specific circumstances can fundamental rights be considered to be

part of the basic structure.

Conclusively, it is important to note that the judiciary has an indispensable stake

in having a say regarding an amendment to the constitution.

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