By Prof Upendra Baxi
Theoretically, we live under some kind of separation of powers regime, but as a matter of lived law, it remains far from truth to say that we live under laws made by Parliament. Since the landmark Advisory Opinion in Re Delhi Laws Act [1951, AIR. 332], parliamentary law-making function has been relegated to vast political and executive rule-making powers. Delegation was recognized by the Supreme Court as a “necessary evil”. It tried valiantly to identify the “essential functions” of legislation which may not be delegated, and despite nine different judicial opinions, managed to stitch a common thread: namely, that “essential functions” of a legislature, which comprise the determination of legislative policy and the formulation of rules of conduct, may not be delegated. (Incidentally, in 1973 Kesavananda Bharati was to sub-join this language of essential features with the idea of basic structure of the Constitution which may not be amended).
But how was any court to decide the question of Excessive delegation? Situations arose variously. One concerned what is aptly named as “skeletal legislation” vesting wide powers in the Executive to make effective rules guiding its conduct. My classroom examples, when I used to teach administrative law at the Faulty of Law, University of Delhi, were furnished by The Essential Commodities Act which has eight sections and Import and Exports Control Act with sixteen sections; these, however, spawned vast thickets of what courts and lawyers call “delegated legislation”, and what the Indian Parliament names “subordinate legislation”, with both the Houses endeavouring to oversee with their respective committees on subordinate legislation.
The practice continues to grow even in the spheres of corporate regulation. A blogpost by Bharat Vasani & Varun Kannan on the “rise and rise” of delegated legislation (on the website of Cyril Mangaldas, January 6, 2022) cites instances of the Companies Act, 2013, under which 56 rules where promulgated, 18 circulars issued, and around 225 amendments made to the rules framed by the Ministry of Corporate Affairs. The Securities and Exchange Board of India (SEBI) seems to be way ahead in the race, notifying nearly 80 amendments to its Regulations in 2021, not to speak of around 170 circulars, which “indicates that the law is altered almost every alternate day!”
If the corporate world thus staggers under the complex overload of delegated legislation, how much more would be the weight of regulation befalling the sincere citizens of the constitutional underclasses? I had written in my Crisis of the Indian Legal System (1982) that India was eligible to be reckoned as the most developed country in the history of humankind if GLP (gross legislative product) rather than GDP (gross domestic product), were to be a measure of development! Despite Prime Minister Narendra Modi’s campaign to repeal obsolete laws (as of April 2023, some 2000 laws and regulations were repealed), the practice of delegated legislation thrives explosively even in neoliberal India otherwise practising deregulation.
The adjudicative way out is found by the famous “abdication” test. In its most severe form, abdication is identified when the power to repeal a statute is vested in an administrative/executive authority. In a lesser form, it occurs when the power to remove difficulties (known as Henry VIIII clause, after the notoriously arbitrary English monarch) is deployed to indirectly repeal some legislative provisions, under especially the guise of appropriate modifications. However, justices and courts have generally allowed delegation so long as some, even meagre, policy guidance may be found in the delegation statute. It is here that notoriously, the unedifying judicial hunt for finding such guidelines begins. But, as we all should know, collective common intentions are notoriously polycentric: is the parliamentary intention to be gathered from the perspective of the mover of the Bill or those who move amendments or by the debates that took place? We do not here discuss the recent tendency to pass the Bills within minutes! It would seem that the so-called “purposive” reading of the statutes is undertaken by upper echelons of the judiciary with a sole view to uphold the delegation!
A most recent instance is provided by the decision in demonetisation case (Vivek Narayan Sharma vs Union of India 2023 SCC Online SC1, per. Justices Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian, with BV Nagarathna dissenting). Justice Nagarathna, in her dissenting opinion, held that the 2016 demonetisation exercise was unlawful purely on legal grounds. The learned Justice found that the proposal to carry out the 2016 demonetisation exercise was initiated by the Union and not the Reserve Bank of India [RBI] which merely gave its opinion, as sought by the Union, and the opinion cannot be considered to be a recommendation by the Central Board of the RBI. Besides, she found that the time taken—a meagre 24 hours—showed clear evidence of non-application of RBI mind to the complex aspects of demonetisation.
Of crucial importance is that Justice Nagarathna held that under Section 26(2) of the RBI Act, the 2016 demonetisation can only be carried out through the exercise of the law-making power of the Parliament as granted by the Constitution. An ordinance may be enacted in situations of urgency to meet the claims of secrecy, but later it had to be backed up by parliamentary legislation. A serious matter such as the 2016 demonetisation cannot be carried out merely by issuing a notification as the Union had done.
What is of supreme importance is that ‘Parliament which is the fulcrum in our democratic system of governance, must be taken into confidence. This is because it is the representative of the people of the country. It is the pivot of any democratic country and in it rest the interests of the citizens of the country. The Parliament enables its citizens to participate in the decision-making process of the government. A Parliament is often referred to as a “nation in miniature”; it is the basis for democracy. A Parliament provides representation to the people of a country and makes their voices heard. Without a Parliament, a democracy cannot thrive; every democratic country needs a Parliament for the smooth conduct of its governance and to give meaning to democracy in the true sense. The Parliament which is at the centre of our democracy cannot be left aloof in a matter of such importance. Its views on the subject of demonetisation are critical and of utmost importance’ (emphasis added)
The learned Justice did not go far as to explicitly characterise parliamentary democracy as an aspect of democracy integral to the basic structure and essential feature of the Constitution but it is clear, from the observations cited above, that parliamentary democracy is the heart and soul of political democracy enshrined in the basic structure.
At least there is a prospective ruling that henceforth the law laid down in the learned dissent will be heeded to by posterity. This accentuation of wisdom of Parliament is most welcome in times of Executive dominance in governance—whether named as “new despotism” by the Lord Chief Justice Hewart amidst administrative law implosion in 1929 or what Jeremy Waldron calls recently as the “indignity of legislation”. Equally welcome is the idea of writing a judgment for the “posterity” by which Justice Nagarathna means justice for the future generations, a description of enormous persuasive presence in the struggle for justice which must begin afresh in each generation.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer