Essential Legislative Functions

Submitted By,
Anubhuti Chauhan
Table of Contents
INTRODUCTION .................................................... Error! Bookmark not defined.
INTRODUCTION TO THE TOPIC .......................................................... Error! Bookmark not defined.
STATEMENT OF PROBLEM .................................................................. Error! Bookmark not defined.
RESEARCH OBJECTIVE ........................................................................ Error! Bookmark not defined.
RESEARCH QUESTIONS ....................................................................... Error! Bookmark not defined.
MODE OF RESEARCH ............................................................................ Error! Bookmark not defined.
ESSENTIAL LEGISLATIVE FUNCTION .................. Error! Bookmark not defined.
TEST TO DETERMINE ESSENTIAL LEGISLATIVE FUNCTION………………………………………………………………………..7

SITUATION OF REPEAL AND ABROGATION OF LAWS……………………………………………………………………………….8

ANALYSIS THROUGH CASE LAWS…………………………………………………………..10

ANALYSIS THROUGH US CASE LAWS .................. Error! Bookmark not defined.
CONCLUSION………………………………………………………………………………………..27
BIBLIOGRAPHY…………………………………………………………………………………….29

Essential Legislative Function 2

 INTRODUCTION

In India, Legislatures have a sovereign character and possess wide powers of delegation, However,
this power is subject to limitations. It cannot delegate essential legislative functions, mainly
comprising of determining the legislative policies and formally enacting such policy into a binding
rule of conduct.

The delegation is valid only when the legislative policy and guidelines to implement it are
adequately laid down and the delegate is only empowered to carry out the policy within the
guidelines laid down by legislature1. It is well settled that the Legislature must perform the
essential legislative function itself and that they cannot be delegated to the administration Justice
Cardozo famously stated that the Legislature cannot delegate ‘uncanalized and uncontrolled
power’, the power delegated must not be unconfined and vagrant, but must be canalized within
banks that keep it from overflowing. Once the essential functions are performed by the legislature,
all ancillary and incidental functions can be delegated to the administration. Essential Legislative
Functions include the power to repeal or modify a law and cannot be delegated.

Considering Indian scenario, there is no specific bar in the Constitution of India against the
delegation of legislative power by the legislature to the executive, but it is now well-settled that
essential legislative functions cannot be delegated by legislature to the executive. Legislative
policy must be laid down by the legislature itself and by entrusting this power to the executive, the
legislature cannot create a parallel legislature. The primary duty of law making has to be
discharged by the legislature and delegation may be resorted to as subsidiary or an ancillary
measure. The Supreme Court in case of State of Rajasthan v. Basant Nahata2 stated that the
delegation should not be wide, unguided or unanalysed.

After the decision of the In re Delhi Laws case, the primary issue in all the subsequent cases has
been to determine whether the power delegated was an essential legislative function or not. In

1 (1878) 5 I.A. 178

2
2005 (9) TMI 620

Essential Legislative Function 3

order to determine the same, inquiry into certain factors such as preamble of the statute, impugned
provisions, subject matter of law, and circumstantial background of enacting the law is required.

STATEMENT OF PROBLEM
This project aims to study Essential functions of legislature that cannot be delegated to
administration. Along with it, analysing intricacies involved while dealing with cases related to
identification of delegation of essential function of legislature in Indian and United States
scenario.

RESEARCH OBJECTIVE

 To study essential functions of legislature along with the relevant case laws involved.

 Analysing how determination of essential functions of legislature is done, keeping in

mind Indian scenario.

HYPOSTHESIS

Whether it is appropriate to delegate essential legislative function?

MODE OF RESEARCH
The mode of research used in this project work is doctrinal. Analysis that have been discussed are
discussed with the help of relevant case laws and by study of given provisions along with examples
for better understanding of project topic. Several internet sources, books, reports and databases
have been hovered to complete and make this research effective. Based on sources, the changes
that occurred are explained among which Internet forms the most extensive source and the books
that have been referred used are from the library of National Law University Bhopal.

TENTATIVE CHAPTERISATION

 Introduction
 What are essential legislative functions.
 How are essential legislative functions identified.
 Discussion through case laws.

Essential Legislative Function 4

ESSENTIAL LEGISLATIVE FUNCTION
Ideally, It is well established by courts in India that essential legislative functions cannot be
delegated to any other authority. Constitution of India has conferred a power and imposed a duty
on the Legislature to make laws, the legislature cannot abdicate or efface itself of it. Therefore, it
must alone perform their functions.

Composition of essential legislative function: The essential legislative function consists in the
determination or choice of the legislative policy and its formulation as a rule of conduct. The
Legislature cannot, therefore, delegate to an extraneous authority its function of laying down
legislative policy in respect of a measure and of formally enacting that policy into a binding rule
of conduct.

Now though the aim of the Legislature be to project its mind as far as possible into the future and
to provide in terms as generally as possible for all contingencies that are likely to arise in the
application of the law, it may not be possible to provide specifically for all cases and the
application of the law in many cases may depend on ascertainment of facts and circumstances
which must necessarily be a "subject of inquiry and determination outside the halls of the
Legislature".

It may, therefore, become necessary for the Legislature to delegate subsidiary or ancillary
powers of legislation to delegates of its choice for carrying out the policy laid down in the
enactment and this would be particularly so in modern times when the Legislature is called upon
to enact laws to meet the challenge of complex socio-economic problems. The Legislature must,
therefore, necessarily delegate subsidiary or ancillary powers of legislation to the executive or
other authority and leave the executive or such other authority to work out the details within the
framework of the policy laid down by it to suit the varying aspects and needs of a complex
situation3.

The power conferred on the delegate must not, however, be so wide that it is impossible to
discern its limits. There must be definite boundaries within which the power of the delegate is

3
Kanaiyalal Maneklal Chinai And ... vs The State Of Gujarat And Ors. 1966 7 GLR 717

Essential Legislative Function 5

exercisable. Delegation should not be so indefinite as to amount to an abdication of the
legislative function.

The Legislature must lay down the legislative policy and the legal principles which are to control
any given cases and must provide a standard to guide the officials to carry out that policy before
it delegates its subsidiary power in that behalf.

The legislature cannot delegate its function of laying down legislative policy in respect of a
measure and its formulation as a rule of conduct. The Legislature must declare the policy of the
law and the legal principles which are to control any given cases and must provide a standard to
guide the officials or the body in power to execute the law.4

Tests to determine Essential Legislative Function

 Test of Policy and Guidelines: Determines the constitutional validity of delegated

legislation
 Abdication Test: Gwalior Rayon Case: So long as a legislature can repeal the statutory
provision, it does not abdicate its legislative function; it retains control over the delegate
and delegation should be deemed valid howsoever broad the delegated legislation may be

Principle and Policy Test: When the legislature confers powers on an authority to make delegated
legislation, it must lay down policy, principle or standard for the guideline for the authority concerned. The
decisions regarding the policy matters still rest with the legislature whereas only ancillary decision making
functions are delegated.

Abdication Test: As long as the legislature can repeal the parent act conferring power on the
delegate, the legislature does not abdicate its powers. This test was however not accepted. He
subsequently enforced the same in N.K.Papiah v. Excise Commissioner5.Though at this point it
is incorrect to test the validity of these tests, it is trite to say that both have their merits and
demerits which can clearly be seen from the jurisprudence of delegation in the Indian setting.

4
Harishankar Bagla And Another vs The State Of Madhya Pradesh 1954 AIR 465, 1955 SCR 313
5
(1975) 1 SCC 492

Essential Legislative Function 6

Vast powers of delegated legislation have been recognised and affirmed in the case with a
principled caveat that the essential features of legislative power identified as the power of policy-
making accompanied with annexation of sanctions may not be delegated away. This caveat is
seldom brought into play by the Supreme Court of India6.

The Apex court has time and again stated that it is the policy matters that constitute the important
non-delegable functions. However, this does not provide a fool-proof guarantee to identify the
legislative functions that can be delegated. It remains for the courts to decide, in each case as and
when the situation arises, what the essential non-delegable functions are and what are not. Being
recognized the paramount obligation imposed upon it by Article 141 of the Constitution, which
declares that the law made by the Supreme Court is the law of the land, the Apex court has been
vested with this all-important duty in the hope that “justice should not only done but is manifestly
and undoubtedly seen to be done.”7

Vasanlal Maganbhai v. State of Bombay8

Determined whether the impugned delegation involves the delegation of an essential legislative
function- “In dealing with challenge to the vires of a statute on the ground of excessive delegation,
it is, therefore, necessary to inquire whether the impugned delegation involves the delegation of
an essential legislative function or power or whether the legislature has enunciated its policy and
principle and delegated to the subordinate authority accessory or subordinate powers for the
purpose of working out the details within the framework of that policy and principle. If it is the
former, the delegation would be excessive but not so if it is the latter.”

SITUATION OF REPEAL AND ABROGATION OF LAWS.

Whether power to repeal or abrogate laws constitute unwarrantable delegation of legislative
powers?.

6
Upendra Baxi , “ The Myth And Reality Of Indian Administrative Law” as an introduction to I.P.Massey’s
“Administrative Law”, 7th Edn..2010
7
Per Lord Chief Justice Hewart in R v. Sussex Justices, ex parte Mc Carthy.
8
A.I.R. 1951 S.C. 332.
Essential Legislative Function 7
 1. If a law exists and power is given to repeal or abrogate such laws either in whole or in part
and substitute in place of the same other laws which are in force in other areas, it would
certainty amount to an unwarrantable delegation of legislative powers9.
2. To repeal or abrogate an existing law is the exercise of an essential legislative power, and
the policy behind such acts must be the policy of the legislature itself. If the legislature
invests the executive with the power to determine the appropriateness of a law in a
particular territory and if it is given to that authority to replace any of them by laws brought
from other provinces with such modifications as it thinks proper, that would be to invest
the executive with the determination of the entire legislative policy and not merely of
carrying out a policy which the legislature has already laid down.

Specific analysis on this point.

However, in the case of Kanaiyalal Maneklal Chinai vs The State Of Gujarat And Ors.10 It
was held that, if the legislative policy or principle is laid down by the Legislature before
delegating the power to amend or repeal an existing law and the power to amend or repeal
is delegated only as a subsidiary or ancillary power for the purpose of carrying out the
legislative policy or principle so that the power delegated is not unconfined or vagrant, the
delegation would certainly be a valid delegation.
In Re Delhi Laws case, the principle on which he founded himself was that power to repeal
or abrogate an existing law cannot be given to the executive where the effect of doing so
would be to entrust the executive with the determination of the entire legislative policy and
not merely with carrying out a policy which the legislature has already laid down.
Hence it can be concluded that, if the conferment of the power to repeal or amend an
existing law does not invest the executive with the determination of the legislative policy
but the executive is required to exercise the power for the purpose of carrying out a policy
which has already been laid down by the legislature, the delegation cannot be invalid.
OBSERVATION- In each case we must inquire whether the delegation of the power to repeal
or amend an existing law amounts to delegation of an essential legislative function and the
answer to this inquiry would determine the validity of the delegation.

9
Mukherjea J, 1951 AIR 332, 1951 SCR 747
10
(1966) 7 GLR 717

Essential Legislative Function 8

 ANALYSIS THROUGH CASE LAWS
1. The Queen V. Burah11 (1978)
FACTS- In this case, the Act in question (Act XXII of 1869) deals with the Governor General’s
power to bring the Act in effect, determine what laws were to be applicable and the power to
extend application of provisions of the Act. Here an Act was passed by the Indian legislature t
remove Garo Hills from the civil and criminal jurisdiction of Bengal and vested the powers of civil
and criminal administration in an officer appointed by the Lt. Governor of Bengal. The Lt.
Governor was further authorized by S.8 of the Act to extend any provision of this Act with
incidental changes to Khasi and Jaintia Hills. One Burah was tried for murder by the Commissioner
of Khasi and Jaintia Hills and was sentenced to death.

ISSUE- The question was whether these functions would be categorized as delegated legislation.

HELD: The court held that the above-mentioned powers were conferred only on the fulfillment of
certain conditions and hence this was conditional legislation, a concept altogether different from
delegated legislation. The court also stated that “It is a general principle of law in India that any
substantial delegation of legislative authority by the legislature of the country is void” The case
thus lays down that substantive delegation i.e. delegation if the important functions are void in
India and that delegation, if at all possible would have to be conditional.

Lord Selborne said: ‘The Indian Legislature has powers expressly limited by the Act of the
Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which
circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or
delegate of the Imperial Parliament which has, and was intended to have, plenary powers of
legislation, as large and of the same nature, as those of Parliament itself. The established Courts
of Justice, when a question arises whether the prescribed limits have been exceeded, must of
necessity determine that question; and the only way in which they can properly do so, is by looking
to the terms of the instrument by which, affirmatively, the legislative powers were created, and by
which, negatively, they were restricted. If what has been done is legislation, within the general
scope of the affirmative words which give the power, and if it violates no express condition or
restriction by which that power is limited (in which category would, of course, be included any

11
[1878] UKPC 26

Essential Legislative Function 9

Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to enquire
further, or to enlarge constructively those conditions and restrictions.’

2. Jatindra Nath Gupta V. Province Of Bihar12

FACTS- In this case, the provincial government was authorized to extend the applicability of The
Bihar Maintenances of Public Order Act, 1948 for one year, under Section 1(3) of the Act. The
extension could be made with such modifications as it may deem fit. This was challenged on the
grounds of excessive delegation.

HELD : The Federal Court held that the delegation of power of extension with modification is
ultra vires the Bihar Provincial Legislature as it is an essential legislative function. A dissenting
opinion was delivered by J.Faizal Ali, wherein, he held that the delegation of power of extension
was constitutional as it only amounted to continuation of the Act.

IMPACT: This judgment marks a shift from the position adopted by the Privy Council in R v.
Burrah. This decision is of great importance, as it implies the acceptance of a rigid theory of
separation of powers by the Federal Court.

3. In Re The Delhi Laws Act, 1912, vs The Part C States (Laws) Act, 195013

Facts: This was a Presidential reference under Article 143 of the Constitution. Constitutional
validity of 3 laws – Section 7 the Delhi Laws Act, 1912, Section 2 of the Ajmer Merwara
(Extension of Laws) Act, 1947, and Section 2 of the Part C States (Laws) Act, 1950 were in
question.

Section 7, Delhi Laws Act, empowered the Provincial Government to extend to the Province of
Delhi, any law in force in any part of British India, with such restrictions and modifications as it
deemed fit. Section 2, Extension of Laws Act, empowered the Central government to extend to the
Province of Ajmer-Mewar, any law in force in any other province, with such restrictions and
modifications as it deemed fit. Under Section 2 of the Part C States Act, the Central government

12
AIR 1949 Fed. Court 175.
13
1951 AIR 332, 1951 SCR 747
Essential Legislative Function 10
was provided a similar power as in the above two instances. However, additional power to repeal
or amend any corresponding law which was applicable to Part ‘C’ States was also delegated.

ISSUE: Is it permissible for the legislature to delegate legislative power to a subordinate authority
– limits within which this could be done
Reference was made by the President of India under Article 143 of the Constitution asking
the Court‘s opinion on three questions:

“(1) Was Section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what
particular or particulars or to what extent ultra vires the legislature which passed the said Act?”

Section 7 of the Delhi Laws Act, 1912 read:

―The Provincial Government may, by notification in the Official Gazette, extend with such
restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any
enactment which is in force in any part of British India at the date of such notification.‖

“(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and
in what particular or particulars or to what extent ultra vires the legislature which passed the said
Act?”
Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 read:
“Extension of Enactments to Ajmer-Merwara. – The Central Government may, by notification in
the Official Gazette, extend to the Province of Ajmer-Merwara with such restrictions and
modifications as it thinks fit any enactment which is in force in any other Province at the date of
such notification.

“(3) Is Section 2 of the Part „C‟ States (Laws) Act, 1950, or any of the provisions thereof and in
what particular or particulars or to what extent ultra vires the Parliament?”
Section 2 of the Part „C‟ States (Laws) Act, 1950 read:
“Power to extend enactments to certain Part „C‟ States. – The Central Government may, by
notification in the Official Gazette, extend to any Part ‗C‘ State (other than Coorg and the
Andaman and Nicobar Islands) or to any part of such State, with such restrictions and
modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the

Essential Legislative Function 11

notification and provision may be made in any enactment so extended for the repeal or amendment
of any corresponding law (other than a Central Act) which is for the time being applicable to that
Part ‗C‘ State.

Conclusion- The majority of the Judges who heard the Reference consisting of Kania C.J.,
Mahajan J., Mukherjea J., and Bose J., held that the latter portion of the section which empowered
the Central Government to make provision in any enactment extended to a Part C State for repeal
or amendment of any law which might for the time being be in force in that Part C State was ultra
vires as reflecting constitutionally impermissible delegation of legislative power. The view taken
by Kania C.J., was that only Parliament can perform the essential legislative functions; the
determination of the legislative policy and its formulation as a rule of conduct must be made by
the Legislature and cannot be delegated by the Legislature to an extraneous authority or other
administrative body.

Justice Kania observed "the power to delegate legislative functions generally is not warranted
under the Constitution of India at any stage". Mahajan J., took even a stricter view and held that
"Parliament has no power to delegate its essential legislative functions to others whether State
Legislatures or executive authorites, except, of course, functions which really in their true nature
are ministerial". Mukherjea J., observed that essential legislative functions cannot be delegated
and he explained this by saying "The essential legislative function consists in the determination or
choosing of the legislative policy and of formally enacting that policy into a binding rule of
conduct"

Analysis: This was a landmark case in bringing clarity in certain areas of dubiety. It stated that
delegation is a necessity due to increase in burden on the legislature and increase in administrative
activities. They firmly stated that delegated legislation can be extended only till exercising of
ancillary powers and not transferring its essential functions. Majority of judges were in favour of
delegated legislation.

Essential Legislative Function 12

Now, the contention to be decided by courts is whether the power delegated is excessive or within
the ambit of the parent act14.

To understand in brevity, the case achieved two things:

 It legitimized delegation of legislative power by the legislature to administrative organs;

 It imposed an outer limit on delegation by the legislature.

IMPACT: It is thus submitted that the legitimacy of delegation is no longer a question of dispute.
Several years after the case at hand it is safe to say that this is an ongoing process. As times change
and as the need of the society change, different limits will have to be cast upon delegation. The
different controls will have to be made more stringent and the leash shortened or let loose as the
situation demands.

4. Hodge v. R15

FACTS: Under the Liquor Licence Act (known as the "Crooks Act" after Adam Crooks), the
Legislative Assembly of Ontario delegated authority to the License Commissioners of Toronto to
pass a resolution that prohibited the use of billiard tables during any time when the sale of alcohol
was permitted.

Archibald Hodge was licensed to sell liquor in his tavern, and was also licensed to operate a billiard
saloon. In May 1881, he was convicted of allowing a billiard table to be used during the hours
authorized for selling liquor. He sued in the Court of Queen's Bench to have the conviction
quashed, on the grounds that: the resolution of the License Commissioners was illegal and
unauthorized, the License Commissioners had no authority to pass such a resolution, and the
Liquor Licence Act was ultra vires provincial jurisdiction.

HELD: Lord Fitzgerald held that the province had the authority to delegate any of its residual
powers under section 92(16). Fitzgerald examined the pith and substance of the law that delegated
the power to the commission. It was noted that:

14
IP Massey, Administrative Law, p 103 (7th Edn. Eastern Book Company)
15
[1883] UKPC 59

Essential Legislative Function 13

“the powers intended to be conferred by the Act in question, when properly understood, are to
make regulations in the nature of police or municipal regulations of a merely local character for
the good government of taverns... and such as are calculated to preserve, in the municipality, peace
and public decency, and repress drunkenness and disorderly and riotous conduct.”

The Act, however, also touched on powers that were exclusively in the authority of the federal
government, as had been recently determined in Russell v. The Queen. Fitzgerald distinguished
that fact with what is now the doctrine of double aspect: "subjects which in one aspect and for one
purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91."
Consequently, when a law has some overlapping characteristics between the two heads of power,
it may still be valid.

5. Harishankar Bagla And Another vs The State Of Madhya Pradesh16

Facts: The appellant, Harishankar Bagla, and his wife, Smt. Gomti Bagla, were arrested at Itarsi,
by the Railway Police on the 29th November, 1948, for contravention of section 7 of the Essential
Supplies (Temporary Powers) Act, 1946, read with clause (3) of the Cotton Textiles (Control of
Movement) Order., 1948, having been found in possession of new cotton cloth " weighing over
six maunds which cloth, it was alleged, was being taken by them from Bombay to Kanpur without
any permit. After various vicissitudes through which the chalan passed the case was eventually
withdrawn by the High Court to itself on the 3rd of September,'1951, as it involved a decision of
constitutional issues.

By its order dated the 15th September, 1952, the High Court upheld the provisions of sections 3
and 4 of the Essential Supplies (Temporary Powers) Act, 1946, as constitutional. It also upheld the
constitutionality of the impugned Order. Section 6 of the Act was held to be inconsistent with the
provisions of the Railway Act but it was held that its unconstitutionality did not affect the
prosecution in this case. The High Court directed that the prosecution should proceed and the
records sent back to the trial Court for being dealt with in accordance with law. Leave to appeal
was given both to the appellants and the respondent and requisite certificates under articles 132
and 134 of the Constitution were granted.

16
1954 AIR 465, 1955 SCR 313

Essential Legislative Function 14

Issue: (2) That section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and in
particular section 4were ultra vires, the Legislature on the ground of excessive delegation of
legislative power;

Section 3 states that, No person. shall transport or cause to be transported by rail, road, air, sea or
inland navigation any cloth, yarn or apparel except under and in accordance with-

(i) a general permit notified in the Gazette of India by the Textile Commissioner, or

(ii) a special transport permit issued by the Textile Commissioner."

Held: In the present case the legislature has laid down such a principle. The principle is the
maintenance or increase in supply of essential commodities and of securing equitable
distribution and availability at fair prices. The principle is clear and offers sufficient guidance to
the Central Government in exercising its powers under section 3. Delegation of the kind mentioned
in section 3 was upheld before the Constitution in several decisions of their Lordships of the Privy
Council, vide Russell v. The Queen 17, Hodge v. The Queen 18, and Shannon v. Lower Mainland
19
Dairy Products Board and since the coming into force of the Constitution delegation of this
character has been upheld in a number of decisions of this Court on principles enunciated by the
majority in the Delhi Laws Act case 20 As already pointed out, the preamble and the body of the
sections sufficiently formulate the legislative policy.

Therefore, Act is such that the details of that policy can only be worked out by delegating them to
a subordinate authority within the framework of that policy. Therefore, it is unnecessary therefore
to consider this question in greater detail.

Hence, the provisions of sections 3, 4 and 6 of the Essential Supplies (Temporary Powers) Act,
1946, are constitutional and. the impugned order is also constitutional. Accordingly, the appeal
was dismissed.

17
(2) 7 A.C. 829
18
9 A.C. II7.
19
[I938] A.C. 708.
20
[1951] S.C.R. 747.
Essential Legislative Function 15
 6. Rajnarain Singh v. The Chairman Patna Administration Committee (1955)21

An executive authority can be authorised to modify either existing or future laws but not in any
essential feature. Exactly what constitutes an essential feature cannot be enunciated in general
terms, and there was some divergence of view about this in the former case, but this much is clear
from the opinions set out above: it cannot include a change of policy.

7. Edward Mills Co. Ltd. v. State of Ajmer

In this case, the power conferred on the appropriate Government under Section 27 was in wide
terms since it permitted the appropriate Government to add to either part of the Schedule any
employment in respect of which it was of opinion that minimum rates of wages should be fixed
under the Act. It

was held that this delegated power was merely an accessory or subordinate power conferred on the
appropriate Government for the purpose of carrying out effectively the policy underlying
the Minimum Wages Act.

8. Kanaiyalal Maneklal Chinai vs. The State Of Gujarat And Ors.22

Facts: The Land Acquisition Act, 1894 and powers and duties which belonged to the State
Government under those sections were conferred and imposed on the Commissioners to be
exercised and performed by them concurrently with the State Government. It appears that
amendments in two other sections of the Land Acquisition Act were left out and the State
Government, therefore, issued another notification dated 22nd September 1958 under Section 3
Sub-section (4) amending those sections and conferring and imposing on the Commissioners the
powers and duties of the State Government under those sections. It was in exercise of the powers
conferred by these two notifications that the Commissioner, Ahmedabad Division, issued the
notification dated 2nd September 1959 under Section 4 and the Commissioner, Baroda Division,
issued the notification dated 18th August 1961 under Section 6 of the Land Acquisition Act.

21
A. I. R. 1954 S. C. 569: (1956) 1 S.C.R. 290.
22
(1966) 7 GLR 717.

Essential Legislative Function 16

ISSUE 1: Now the argument was that Section 3 Sub-section (4) was ultra vires since it involved
excessive delegation of legislative power to the State Government which was not permissible to
the State Legislature under the authority conferred on it under Articles 245 and 246.

Section involved: Section 3 Sub-section (4) states that the State Government may confer and
impose on the Commissioner powers and duties under any other enactment for the time being in
force.

ANALYSIS: The Divisional Officer was, therefore, an Officer in charge of a Division who was to
exercise such powers and duties as might be conferred or imposed on him by the State Government
and who, in the exercise and performance of those powers and duties, was subject to the control
of the State Government.

It appears that soon after this set up was introduced in the State it was found that it was not adequate
since the State had become very large by reason of the addition of territories belonging to other
States as a result of the States Reorganization Act, 1956, and the Commissioners Act was,
therefore, enacted by the State Legislature. The objects and reasons which necessitated the
enactment of Commissioners Act were set out in the Statement of Objects and Reasons which was
in the following terms:

REASON FOR ABOVE: The increased tempo of development activities particularly community
development, land reform measures, and other administrative requirements of the State such as
the need for co-ordination, supervision and decentralisation make it necessary that a supervising,
co-ordinating and inspecting agency of higher status and powers should be established at
Divisional headquarters. It has accordingly been considered necessary to appoint Commissioners
in place of the present Divisional Officers and to amend relevant enactments for conferring certain
statutory powers and duties upon the Commissioners. The Act (THE LAND ACQUISITION ACT,
1894) is mainly designed to achieve these objects.

Therefore, for the purpose of achieving that object or policy the Legislature decided to appoint
Commissioners in place of Divisional Officers and to confer and impose certain statutory powers
and duties upon the Commissioners.

Essential Legislative Function 17

LEGISLATURES ROLE: The Legislature accordingly enacted the Commissioners Act and the
way in which the Legislature proceeded was the one usually followed in legislations of this type.
The Legislature first provided for constituting offices of Commissioners by amending the relevant
provisions of the Bombay Land Revenue Code, 1879, and the necessary amendments were made
by the enactment of Sub-section (1) of Section 3.

The question then was as to what powers and duties should be conferred and imposed on the
Commissioners. Keeping in view the object or policy to achieve which the enactment was passed,
the Legislature applied its mind to certain enactments and amended those enactments for the
purpose of conferring and imposing on Commissioners powers and duties of the State Government
and its subordinate officers under those enactments.

This too was done by the Legislature by Sub-section (1) of Section 3 by providing in that sub-
section that the enactments specified in Column 1 of the Schedule shall be amended in the manner
and to the extent specified in Column 2 thereof.

But the enactments conferring powers and imposing duties on the State Government and its
subordinate officers being many having regard to the complex activities of the State Government
in a modern welfare State, the Legislature could not possibly apply its mind to all the enactments
at the time of passing the legislation and decide in respect of which enactments powers and duties
should be conferred and imposed on Commissioners.

The question whether powers and duties of the State Government and its subordinate officers
under any particular enactment are necessary to be conferred and imposed on Commissioners for
carrying out the legislative policy or principle would depend upon various facts and circumstances
which could best be ascertained by the State Government which would be in charge of the
administration of the affairs of the State.

The Legislature, therefore, laid down the legislative policy or principle and left it to the State
Government to decide with reference to the exigencies of the situation and the prevailing
conditions whether it is necessary or desirable for effectuating the legislative policy or principle
that powers and duties of the State Government and its officers under any particular enactment
should be conferred and imposed on Commissioners.

Essential Legislative Function 18

CONCLUSION :

It is unnecessary to consider whether the amendment made in the Land Acquisition Act by the
State Government by the Notification dated 5th September 1958 issued in exercise of the power
delegated under Section 3(4) is an amendment which effects a departure from the legislative policy
of the Land Acquisition Act.

Even if it does, it would still be a valid exercise of a properly delegated power provided the
legislative policy or principle is laid down by the Legislature to control and guide the State
Government in the exercise of the delegated power under Section 3(4) and the amendment made
is within the four corners of such legislative policy or principleThis provision was made by the
legislature obviously in order to carry out effectively the policy and purpose of the enactment of
the Commissioners Act and it is, therefore, not possible to say that in making this provision the
Legislature stripped itself of any essential legislative function and vested it in the State
Government.

The power to amend any other enactment for the time being in force conferred on the State
Government under Section 3 Sub-section (4) is not an uncontrolled or uncanalised power but there
is legislative policy or principle laid down in the statement of objects and reasons and it is only
within the framework of that policy or principle and for the purpose of effectuating it or carrying
it out that the State Government can exercise the delegated power and in exercise of the delegated
power confer and impose on the Commissioner powers and duties of the State Government and its
subordinate officers under any other enactment for the time being in force. Section 3 Sub-section
(4) does not, therefore, in their opinion suffer from the vice of excessive delegation of legislative
power.

Essential Legislative Function 19

ANALYSIS THROUGH UNITED STATES CASE LAWS

1. National Broadcasting Co., Inc. v. United States23

FACTS: The (FCC)Federal Communication Commission established Chain Broadcasting

Regulations in 1941, which specifically governed the licensing and content of chain broadcasting
stations. National Broadcasting Company (NBC), sued to enjoin the enforcement of the
regulations. The United States District Court for the Southern District of New York dismissed the
complaint, ruling for the government, and NBC appealed.

The Supreme Court ultimately affirmed the dismissal of the complaint, ruling that the government
had the power to enact and enforce the regulations in question.

ISSUE: Did Congress authorize the Federal Communication Commission to exercise the power
asserted by the Chain Broadcasting Regulations, and if it had, does the Constitution forbid the
exercise of such authority?

On March 18, 1938, the Federal Communications Commission undertook a comprehensive

investigation to determine whether special regulations applicable to radio stations engaged in chain
broadcasting were required in the 'public interest, convenience, or necessity...' On May 2, 1941,
the Commission issued its Report on Chain Broadcasting, setting forth its findings and conclusions
upon the matters explored in the investigation, together with an order adopting the Regulations
here assailed.
The Commission found that at the end of 1938 there were 660 commercial stations in the United
States, and that 341 of these were affiliated with national networks... It pointed out that the stations
affiliated with the national networks utilized more than 97% of the total night-time broadcasting
power of all the stations in the country. NBC and CBS together controlled more than 85% of the
total night-time wattage, and the broadcast business of the three national network companies
amounted to almost half of the total business of all stations in the United States."
On the ground that it had the congressional power to do so, the Commission established its Chain
Broadcasting Regulations to correct eight network abuses. "The appellants attack the validity of

23
319 U.S. 190 (1943)

Essential Legislative Function 20

these Regulations. They contend [notably] that the Commission went beyond the regulatory
powers conferred upon it by the Communications Act of 1934."
On remand from a previous hearing by the US Supreme Court, the District Court for the Southern
District of New York reconsidered the case and "granted the Government's motions for summary
judgment and dismissed the suits on the merits."

CONCLUSION - the Supreme Court of the United States held on May 10, 1943 that the Federal
Communications Commission had the power to issue regulations pertaining to associations
between broadcasting networks and their affiliated stations, otherwise known as "chain networks."
The case is important in the development of American administrative law.

The FCC's authority stemmed from its organic statute, the Communications Act of 1934. The Act
provided that:

“It is the purpose of this Act, among other things, to maintain the control of the United States over
all the channels of interstate and foreign radio transmission; and to provide for the use of such
channels, but not the ownership thereof, by persons for limited periods of time, under licenses
granted by Federal authority, and no such license shall be construed to create any right, beyond
the terms, conditions, and periods of the license.”

The Act also provided that the criterion governing the exercise of the Commission's license power
is the "public interest, convenience, or necessity. NBC argued that the FCC's power was limited to
the technical aspects of radio transmission. The Court found that it was not, but instead "we are
asked to regard the Commission as a kind of traffic officer, policing the wave lengths to prevent
stations from interfering with each other.

NBC argued that the Act did not explicitly allow the Commission to develop regulations for chain
broadcasting. The Court admitted this, but held that an explicit grant of power was not necessary
in this context, because the field was new and dynamic, and that by granting power to the FCC, it
intended "not niggardly but expansive powers." NBC argued that the grant of power to the FCC
was unconstitutionally vague, because it did not provide definite guidelines. The Court found that
the guidelines were the service of "public interest, convenience, or necessity," and that those
guidelines were constitutionally sufficient.

Essential Legislative Function 21

The Court concluded that the Chain Broadcasting Regulations were simply the particularization of
the Commission's conception of the "public interest" sought to be safeguarded by Congress in
enacting the Communications Act.

1. Panama Refining Co. V. Ryan24

FACTS: Section:9(c) of the National Industrial Recovery Act of June 16, 1933 authorized the
President of the United States “to prohibit the transportation in interstate and foreign commerce of
petroleum and the products thereof produced to withdrawn from storage in excess of the amount
permitted to be produced or withdrawn from storage by any state law or valid regulation or order
prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a
State. Any violation of an order of the President issued under the provisions of this subsection shall
be punishable by a fine, not to exceed $1,000, or imprisonment not to exceed six months, or both.”
The President issued the foregoing prohibition by Executive Order, and then authorized the
Secretary of Interior to exercise all of the powers vested in the President under Section:9(c). The
Secretary of Interior then issued regulations to carry out the President’s orders, which required all
petroleum producers to file monthly statements, under oath, with the Division of Investigations of
the Department of the Interior. Further, the President approved a “Code of Fair Competition for
the Petroleum Industry,” and designated the Secretary of Interior with all of the powers vested in
him under the Act and the Code.
Section:9(c) was challenged on the ground that it was an unconstitutional delegation of legislative
power by Congress.

Issue. Was the delegation of power to the President under Section:9(c) of the National Industrial
Recovery Act an unconstitutional delegation of legislative power?

Held. Yes. The attempted delegation was plainly void because the power sought to be delegated
was legislative power, but nowhere in the statute did Congress declare or indicate any policy or
standard to guide or limit the President when acting under the delegation. However, Justice

24
293 U.S. 388 (1935)

Essential Legislative Function 22

Cardozo dissented and felt that the “declaration of policy” in Section:1 of the Act, stating that there
was a national emergency, was a sufficient definition of a standard to make the statute valid.
Concurrence. None.

Chief Justice Charles E. Hughes pointed out that the validity of the Department of Interior's
regulations rested on the constitutionality of Section 9(c) of the NIRA, which was the original
source of their authority. He further argued that the allowance or prohibition of transportation of
goods was "obviously one of legislative policy," meaning that a delegation of power had
occurred. The court's next step was to search for an intelligible principle in the legislation that
guided and limited the President's power, though in this case none could be found.

He stated that : Section 9(c) is brief and unambiguous.It does not qualify the President's authority
by reference to the basis or extent of the state's limitation of production. It does not state whether
or in what circumstances or under what conditions the President is to prohibit the transportation of
the amount of petroleum or petroleum products produced in excess of the state's permission. It
establishes no criterion to govern the President's course. It does not require any finding by the
President as a condition of his action. The Congress in section 9(c) thus declares no policy as to
the transportation of the excess production. So far as this section is concerned, it gives to the
President an unlimited authority to determine the policy and to lay down the prohibition, or not to
lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine
and imprisonment.”

IMPACT

In the majority opinion, Chief Justice Hughes placed Section 9(c) and its related executive orders
in historical context to further explain the court's decision to declare them unconstitutional.

The court's examination traced the history of delegated power and the evolution of the non-
delegation doctrine. Field v. Clark (1892) had held that the idea that "Congress cannot delegate
legislative power to the president' is 'universally recognized as vital to the integrity and
maintenance of the system of government ordained by the constitution." In that case, the statute in
question had been constitutional because the President had served as "the mere agent of the law-
making department.

Essential Legislative Function 23

Panama and Schechter are the only two cases in which a law has been overturned for violating
the non-delegation doctrine.

Following the decision in Panama Refining Co. v. Ryan, Congress passed the Connally Hot Oil
Act of 1935, which contained many of the provisions from Section 9(c) of the NIRA25.

2. A. L. A. Schechter Poultry Corp. v. United States26

FACTS: A.L.A. Schechter Poultry Corporation (Petitioners) were convicted in the District Court
of the United States for the Eastern District of New York for violating the Live Poultry Code,
promulgated under Section:3 of the National Industrial Recovery Act.

Section:3 of the Act authorized the President to approve “codes of unfair competition” for trades
and industries, and a violation of any code provision in any transaction in or affecting interstate or
foreign commerce was made a misdemeanor punishable by a fine. The Live Poultry Code was
approved by the President on April 13, 1934. Petitioners were convicted in the District Court for
violating the Live Poultry Code, and contended that the Code had been adopted pursuant to an
unconstitutional delegation by Congress of legislative power.

Issue. Did Congress, in authorizing the “codes of unfair competition” establish the standards of
legal obligation, thereby performing its essential legislative function?

Held. No. The code-making authority conferred was an unconstitutional delegation of legislative
power. Under Title 1, Section:1 of the Act there was a broad “Declaration of Policy” and the
President’s approval of a code was simply conditioned on his finding that it would “tend to
effectuate the policy of this title.” The Act imposed no limitations on the scope of the new laws,
and there was a very wide field of legislative possibilities. The delegated power of legislation was
unconfined and vagrant.

IMPACT

25
Government Publishing Office, Connally Hot Oil Act, accessed November 16, 2017.
26
295 U.S. 495, 55 S. Ct. 837.

Essential Legislative Function 24

Schechter Poultry v. United States was one of the major cases in the development of the non-
delegation doctrine, the body of jurisprudence governing when and how Congress may delegate
its power to other parts of the government. The New Deal involved significant changes to the
structure and operation of the Executive Branch, so the court cases of the late 1930s did much to
clarify how these changes would be implemented. The Schechter ruling was part of a series of
judicial setbacks to Franklin Roosevelt's New Deal agenda that may have inspired his attempt to
pass the Judicial Procedures Reform Bill of 1937. The bill would have empowered the president
to appoint a new Supreme Court justice for every existing one over the age of 70, which would
have given Roosevelt six new appointments upon its passing. The bill did not pass, though some
scholars, including Douglas Linder of the University of Missouri-Kansas City, argue that it
influenced the behavior of the court in subsequent cases related to other New Deal programs.

Essential Legislative Function 25

CONCLUSION

The aim of the Legislature be to project its mind as far as possible into the future and to provide
in terms as generally as possible for all contingencies that are likely to arise in the application of
the law, it may not be possible to provide specifically for all cases and the application of the law
in many cases may depend on ascertainment of facts and circumstances which must necessarily be
a "subject of inquiry and determination outside the halls of the Legislature".

It is therefore necessary for the Legislature to delegate subsidiary or ancillary powers of legislation
to delegates of its choice for carrying out the policy laid down in the enactment and this would be
particularly so in modern times when the Legislature is called upon to enact laws to meet the
challenge of complex socio-economic problems.

The Legislature must necessarily delegate subsidiary or ancillary powers of legislation to the
executive or other authority and leave the executive or such other authority to work out the details
within the framework of the policy laid down by it to suit the varying aspects and needs of a
complex situation.

The power conferred on the delegate must not be so wide that it is impossible to discern its limits.
There must be definite boundaries within which the power of the delegate is exercisable.
Delegation should not be so indefinite as to amount to an abdication of the legislative function.
The Legislature must lay down the legislative policy and the legal principles which are to control
any given cases and must provide a standard to guide the officials to carry out that policy before it
delegates its subsidiary power in that behalf.

In two decisions of the Supreme Court of the United States of America-Panama Refining Co. v.
Ryan and Schechter v. United States. In both these cases it was held that so long as the policy is
laid down and a standard established by a statute, no unconstitutional delegation of legislative
power is involved in leaving to selected instrumentalities the making of subordinate rules within
prescribed limits and the determination of facts to which the policy as declared by the Legislature
is to apply.

Therefore, it can be concluded that legislative functions, essential in nature should not be delegated
to executive. These essential legislative functions cannot be exactly laid down but consists in the
determination or choice of the legislative policy and its formulation as a rule of conduct. The
Essential Legislative Function 26
Legislature cannot delegate its function of laying down legislative policy in respect of a measure
and of formally enacting that policy into a binding rule of conduct.

Thank you for your kind perusal.

Essential Legislative Function 27

BIBLIOGRAPHY

 https://indiankanoon.org/doc/1632811/

 http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-
Parliamentary-Control.html

 https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=6243

 https://www.slideshare.net/reshmasuresh1884/delegated-legislation

 https://www.lawnotes.in/Essential_legislative_function

 https://en.wikipedia.org/wiki/Hodge_v_R

Essential Legislative Function 28