The rationale behind the doctrine of separation of power is to prevent despotism. At the same time, it is not possible to adhere to the doctrine strictly. The experience of pragmatic approach of the administration is clearly demonstrating for the need of the sharing of the powers belonging to one organ by the other. Now we have reached a stage that there is no question of whether to delegate power or not? The issue that needs our attention is how to ensure that the power delegated is properly exercised by the regulatory agencies. The myriad form of existing control mechanisms are not adequate to see that the delegate is within the jurisdiction while exercising the power conferred. The judicial leniency in favour of upholding the validity of delegation can very well be inferred by the relevant cases decided. The Indian judiciary has tried to deal with the system of delegation of legislative power with the help of some doctrines like, doctrine of ultra-vires and excessive delegation. The judiciary is continuously consistent in holding that the supreme legislature should not abdicate its function by delegating its’ essential legislative functions. The courts have differed in ascertaining the contours of ‘essential legislative function’ in India. In the light of changing circumstances relating economic policy, science and technology, there is urgent compulsion to review the system of delegation of legislative power and its implications on the administration. This paper tries to inquire into the issue ‘Is the judicial trend relating to delegation of legislative power conforms to the intent of the founding fathers of the Constitution? It also investigates the need to revamp the doctrinal approach toward the delegation of legislative power. Some have expressed the view that the legislature is delegating more power than it is required. The paper attempts to signal some further research into the delegation of legislative power for securing the welfare of the society.
Judicial Treatment of the Delegation of Legislative Power under the Constitution of India.
Judicial Treatment of the Delegation of Legislative Power under the Constitution of India.
The rationale behind the doctrine of separation of power is to prevent despotism. At the same time, it is not possible to adhere to the doctrine strictly. The experience of pragmatic approach of the administration is clearly demonstrating for the need of the sharing of the powers belonging to one organ by the other. Now we have reached a stage that there is no question of whether to delegate power or not? The issue that needs our attention is how to ensure that the power delegated is properly exercised by the regulatory agencies. The myriad form of existing control mechanisms are not adequate to see that the delegate is within the jurisdiction while exercising the power conferred. The judicial leniency in favour of upholding the validity of delegation can very well be inferred by the relevant cases decided. The Indian judiciary has tried to deal with the system of delegation of legislative power with the help of some doctrines like, doctrine of ultra-vires and excessive delegation. The judiciary is continuously consistent in holding that the supreme legislature should not abdicate its function by delegating its’ essential legislative functions. The courts have differed in ascertaining the contours of ‘essential legislative function’ in India. In the light of changing circumstances relating economic policy, science and technology, there is urgent compulsion to review the system of delegation of legislative power and its implications on the administration. This paper tries to inquire into the issue ‘Is the judicial trend relating to delegation of legislative power conforms to the intent of the founding fathers of the Constitution? It also investigates the need to revamp the doctrinal approach toward the delegation of legislative power. Some have expressed the view that the legislature is delegating more power than it is required. The paper attempts to signal some further research into the delegation of legislative power for securing the welfare of the society.
The rationale behind the doctrine of separation of power is to prevent despotism. At the same time, it is not possible to adhere to the doctrine strictly. The experience of pragmatic approach of the administration is clearly demonstrating for the need of the sharing of the powers belonging to one organ by the other. Now we have reached a stage that there is no question of whether to delegate power or not? The issue that needs our attention is how to ensure that the power delegated is properly exercised by the regulatory agencies. The myriad form of existing control mechanisms are not adequate to see that the delegate is within the jurisdiction while exercising the power conferred. The judicial leniency in favour of upholding the validity of delegation can very well be inferred by the relevant cases decided. The Indian judiciary has tried to deal with the system of delegation of legislative power with the help of some doctrines like, doctrine of ultra-vires and excessive delegation. The judiciary is continuously consistent in holding that the supreme legislature should not abdicate its function by delegating its’ essential legislative functions. The courts have differed in ascertaining the contours of ‘essential legislative function’ in India. In the light of changing circumstances relating economic policy, science and technology, there is urgent compulsion to review the system of delegation of legislative power and its implications on the administration. This paper tries to inquire into the issue ‘Is the judicial trend relating to delegation of legislative power conforms to the intent of the founding fathers of the Constitution? It also investigates the need to revamp the doctrinal approach toward the delegation of legislative power. Some have expressed the view that the legislature is delegating more power than it is required. The paper attempts to signal some further research into the delegation of legislative power for securing the welfare of the society.
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