Supreme Court (07.05.1997) in Agricultural Market Committee vs Shalimar Chemical Works Ltd [Appeal (civil) 3359 of 1997 ] held that;-
Legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act concerned.
While what constitutes an essential feature cannot be delineated in detail it certainly cannot include a change of policy. The legis-lature is the master of legislative policy and if the delegate is free to switch policy it may be usurpation of legislative power itself.
The essential legislative function consists of the determination of the legislative policy and the Legislature cannot abdicate essential legislative function in favour of another.
The effect of these principles is that the delegate which has been authorised to make subsidiary Rules and Regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder.
It cannot, in the garb of making Rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act.
Excerpts of the order;
# 21. Delegated Legislation has been defined by Salmond as "that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority." (See Salmond, Jurisprudence, 12th Edn.
# 22. Delegated Legislation is not a new phenomenon. Ever since the Statutes came to be made by Parliament, the Delegated Legislation also came to be made by an authority to which the power was delegated by the Parliament. It is no use going back into the pages of history or to look to the Statute of Proclamations 1539, under which Henry VIII was given extensive powers to legislate by proclamations, what is intended, to be emphasised is that there has always been, and continues to be, need for delegated legislation. The exigencies of the modern State, especially the social and economic reforms, have given rise to the making of Delegated Legislation on a large scale (by authorising the Government, almost in every Statute passed by Parliament or the State Legislature to make Rules) so much so that a reasonable fear could have arisen among the people that they were being ruled by the Bureaucracy.
# 23. The reasons for giving delegated power to the Government to make Rules are many, but the most prominent and dominant reasons are:
(i) The area for which powers are given to make delegated legislation may be technically complex, so much so, that it may not be possible and may even be difficult to set out all the permutations in the Statute.
(ii) The Executive may require time to experiment and to find out how the original legislation was operating and thereafter to fill up all other details.
(iii) It gives an advantage to the Executive, in the sense that a Government with an onerous legislative time schedule may feel tempted to pass skeleton legislation with the details being provided by the making of Rules and Regulations.
# 24. The power of delegation is a constituent element of the legislative power as a whole under Article 245 of the Constitution and other relative Articles and when the Legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by the Acts as part of the Administra-tive Law. The Legislature has to lay down the legislative policy and principle to afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf (See : Vasantlal Maganbhai Sanjanwala v. The State of Bombay and Others, [1961] 1 SCR 341. This Court in another case, namely, The Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, AIR (1968) SC 1232 as also in an earlier decision in In Re : The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act, 1947, and The Part C States (Laws) Act, 1950, [1951] SCR 747 has laid down the principle that the Legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act concerned.
# 25. In Avinder Singh v. State of Punjab, [1979] 1 SCC 137, Krishna Iyer, J. laid down the following tests for valid delegation of legislative power. These are :
"(1) the legislature cannot efface itself :
(2) it cannot delegate the plenary or the essential legislative function;
(3) even if there be delegation, Parliamentary control over delegated legislation should be a living continuity as a constitution-al necessity."
It was further observed as under :
"While what constitutes an essential feature cannot be delineated in detail it certainly cannot include a change of policy. The legis-lature is the master of legislative policy and if the delegate is free to switch policy it may be usurpation of legislative power itself."
# 26. The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the Legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the Legislature to another body of its choice but the Legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. These principles also apply to Taxing Statutes. The effect of these principles is that the delegate which has been authorised to make subsidiary Rules and Regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making Rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act.
-----------------------------------------
