Constitutionality of Delegated Legislation

Administration Law

1. Constitutionality of Delegated Legislation Bhargav Dangar Roll No. 21 Administration Law

2. The phrase ‘ constitutionality of administrative rule making’ means the permissible extent of the Constitution of any country within which the legislature, which has the sole authority of law making power, can validly delegate rule making powers to other administrative agencies. History of delegation of powers can be seen from charter stage of 1833 , where powers were exercised by governor general . Meaning

3. Constitutionality of Delegated Legislation in context with India Three sets of periods : When Privy council was the highest court of appeal : Till 1949 The question of constitutionality came in the case of R.V. Burah . Act passed in 1869 . L ieutenant governor was authorized under section 9 to extend the provision of this act with incidental changes to khasi and jaintia hills . one B urah was tried for murder .

4. The Calcutta HC declared S9 as unconstitutional delegation of legislative power relying on doctrine ‘delegates non protest delegare’. Privy council on appeal reversed the decision of Calcutta HC and upheld the constitutionality of S9 on the grounds that it is merely a conditional legislation. Interpreted - two different ways. Therefore, during this period the question of permissible limits of delegation remained uncertain .

5. When Federal Court became the highest court of appeal : Jatindra Nath Gupta V. Province of Bihar 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 . This was challenged on the grounds of excessive delegation . The federal court held :– P ower of extension with modification is ultra vires Bihar provincial legislation . In this manner, for the first time it was held that legislative power cannot be delegated .

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