Theoretical overview
Constitutionality of delegated legislation means the permissible limit of the constitution within which the legislature which has the sole responsibility of law-making power can validly delegate rule making power to other administrative authorities.
Position in united states-
The delegated legislation is not allowed theoretically in the constitution of the USA because of two primary reasons namely separation of powers and “delegate non potest delegare”. Moreover, there is no text reference in the constitution of the USA which shows that it delegates the power from legislature to executive as congress is itself a delegate, so it cannot delegate further.
Position in United Kingdom-
Parliament is supreme and there are no limitations on parliament by the constitution. It has wide power of delegating its legislature to executive and other authorities.
Position in India-
Delegated legislation is allowed in India but up to certain limits. Two constitutional limits are: –
- It is subject to certain limitations that the legislature cannot delegate essential legislative functions which consists in determining the legislative policy
- The powers conferred on a subordinate authority should not suffer from excessive delegation and if the power so conferred suffers from excessive delegation, then it should be decided on the basis of the fact whether the delegation is beyond the limit of permissible delegation.
Norms of delegated legislation
- After exercising essential function, it can delegate non-essential functions
- Delegated legislation to be valid must be in consistent with the parent act
- It should not violate legislative policy
- The delegatee cannot have more legislative powers than that of delegator
- If parent act is repealed then notifications issued under it is also repealed
Important case laws
- D.S Nakara vs Union Of India (1983) – pension scheme providing higher pension to a government servant retiring before a particular date and lower pension to others was arbitrary and ultra vires. It also violates article 14 of the constitution.
- Air India vs Nagesh Meerza (1981) – a regulation framed by Air India providing that services will be terminated if she gets pregnant is unreasonable and violates article 14 and 15.
- DTC vs Mazdoor Congress (1991) – a regulation conferring power on the authority to terminate services of a permanent employee by giving him three months’ notice was held unconstitutional.
- Re Delhi law act (1951) – two limitations were laid down which were:-
- Legislation cannot delegate its essential legislative functions.
- The power conferred on a subordinate authority or executive body should not suffer from excessive delegation.
Important articles
- Article 14 – equality before law and equal protection of law. Every law made should be reasonable and non-arbitrary.
- Article 15 – no discrimination should be made on the basis of race, gender, caste, religion, place of birth.
Important legal maxims
Ultra vires – it means beyond the powers. Describes actions taken by government bodies or corporations that exceed the scope of power given to them by laws or corporate charters.
Points to remember
- Delegating essential legislative function is not allowed
- The delegatee cannot have more legislative powers than that of delegator
- The delegated legislation is not allowed theoretically in the constitution of USA
- Delegated legislation is allowed in India but up to certain limits
- The powers conferred on a subordinate authority should not suffer from excessive delegation