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Introduction
Opening lines are said to be the hallmark of any submission, whilst mine is simple.
Putting it candidly, delegation of legislative function or delegated legislation is indeed
formidably an integral and necessary aspect for smooth and easy functioning of any
country.
We have before us a judgment rendered by the apex Court of India, through which the
momentous of delegated legislation is reflected and certain aspects of the same are
discussed in great length. The case being that of, In re Art. 143, Constitution of India and
Delhi Laws Act (1912) . The facts of the case being simple wherefore certain Sections of
(a) Delhi Laws Act (13 of 1912), S.7, (b) Ajmer-Merwara (Extension of Laws) Act (52 of
1947), S.2 and (c) Part C States (Laws) Act (30 of 1950), S.2 are scrutinized by the Court
for their constitutionality. The issue thus being simple, whether they are intra or ulta-
vires the Constitution of India.
The six-judge bench took interesting standpoints where the constitutionality of the first
two Acts under the scanner were upheld whereas the second part of Section 2 of the Part
C States (Laws) Act (30 of 1950) was held to be ultra-vires. Most certainly, the judgments
of Chief Justice Kania, Justice Fazl Ali and Justice Bose can said to be perfectly worded
and elaborately dealing with the topic.
The importance of delegated legislation or for that matter sub-delegation is so immense
that even in England, which has no Constitution, this aspect was raised when occasions
of conferment of powers on Sub-ordinate bodies became frequent and assumed large
scope, questions about the advisability of that procedure were raised and a Committee
on the Minister's Powers, what is generally described as the Donoughmore Committee
was appointed.
The Indian Legislature in 1861 and upto 1915 was a Sub-ordinate legislature and not a
sovereign legislature. Therefore under the Crown it was delegated legislative functions.
However, the legislations it made were reviewed by the Crown. This clearly implicates
that delegation of legislative function is not a very recent or new phenomenon. It has
been in existence since time ever on record. The simple reason for this being
convenience.
Territories being enormous, monitoring and controlling is not possible for one
administrative or executive body. Therefore it is but obvious when certain legislative and
executive functions are vested with other authorities rather than a sole central authority
exercising all functions. An example of the same being that, in case of emergency where
the safety of the Union of India is in danger, the President is given express power to
suspend the Constitution and assume all legislative powers. Similarly in the event of the
breaking down of the administrative machinery of a State, the President is given powers
under Article 257 of the Constitution of India to assume both legislative and executive
powers in the manner and to the extent found in the Article. There can be no doubt that
subject to all these limitations and controls, within the scope of its powers and on the
subjects on which it is empowered to make laws the Legislature is supreme and its
powers are plenary.
The Doctrine of Separation of Power is well recognized by all the civilized nations of the
world. In India too such distinction of powers of a sovereign are classified under the
Legislative, Executive and Judiciary. This distinction is blurred, as some would contend,
when powers are delegated or sub-delegated. For example, if the Executive were given
Legislative powers or vice-versa. However, attention must be drawn to the fact that as to
this date, such situations very much exist under our legal framework. The Executive
Magistrate, being a part of the Judiciary is vested with certain Executive functions. In a
similar fashion, governmental departments, being a part of the Administrative body also
exercise quasi-judicial functions, which I must mention are a must for their functioning.
This clearly supports my argument that construing strict, inflexible lines is not pragmatic
between the the Legislative, Executive and the Judiciary.
Our understanding would now further question as to whether there ought to be any
restrictions on the said delegation of powers and functions. As is known, no rule is
absolute and there is nothing which is free of fallacy, reasonable restrictions are a must.