Excessive in simple terms means to go beyond the scope legally. The primary functions of the legislature is to make laws for the country. This function cannot be handed over to any other branch. The basic legislative functions are to understand and investigate the existing laws, search for downfalls, ans promulgate and introduce new laws or reshape existing laws whenever needed. All the supporting and subordinate functions can be given to the executive.
The parliament has derived the legislative powers from the Constitution and is not an inherent power given to it. Due to this, the parliament cannot delegate its functions to the executive as and when they feel so. The legislative function to an extent is given only to the judiciary.
If it so happens that the legislature does not perform its function and it is done by some other branch, then it is deemed to be an abandonment or abdication of power. The authority to delegate the power is qualified only if the test of non-abdication of power is passed and it is proved that there will not be a parallel legislature set up.
There are three principles that test the excessive delegation of power-
- The essential functions and powers cannot be delegated.
- Due to the complex nature of issues arising with time, it is seen that the Parliament cannot always investigate each and every detail, therefore some part of the subject or legislation can be given or allotted to experts to dela with.
- Only if the power is given to the executive in a way that it is constitutional and permissible, then it does not qualify as excessive delegation.
The primary test to see whether a legislative comes under excessive legislation is to check whether the core function of the legislative power has been given off to the other branch. If it is affirmative, then it is deemed to be a case of excessive legislation. If not, then it does not qualify. It is to be taken care that when testing for excessive legislation to enunciate a policy or a principle, the substance of what is done has to be considered than mere matters.
The principal justification given for the use of excessive legislation is that as more complex matters and new issues come in front of the legislature at regular intervals. It also happens that the legislature may not be able to foresee many arising problems. This has to be taken care by the legislature by the means of delegated legislation.
In Gwalior Rayon Silk Manufacturing Co. vs Asst. Commissioner of Sales, the question arose that whether Section 8 (2) (b) of the Central Sales Tax Act, 1956 suffers from the vice of excessive delegation. It stated that in case the local sales tax rate was less than 10% then the dealer, it does not fall under the ambit of Section 8(1) has to pay the tax at the rate of 10%.
If the local sales tax rate was more than 10%, the central sales tax rate was equal to the local sales tax rate. The object of the Act was stated that the central sales tax rate shall never be less than the local sales tax rate.
The court believed the Centre cannot fix the tax rate in the states as they different on the conditions and economies prevalent in the state. Therefore it said that the centre had not abandoned its duty or authority to bring in a uniform tax rate.
It further stated that there had been a definitive law made in the provision that the local sales tax rate cannot be less than central sales tax rate. Therefore, it cannot be said that the Section suffered from the vice of Excessive delegation.
The line between delegated legislation and excessive delegation is very thin and hence to understand the nuances and the crux of the given law is of primary importance. It has also been very well justified the need of experts, and the expansion and division of work and research to enable better productivity. It also will keep in check the misuse of power and also help getting in various perspectives about the matter or subject at hand.
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