Category: Executive Law Making Indian Position

ISSUE:

Whether the law that forbids drug ads for certain ailments restricts the right to free expression?

RULE:

Any document containing an advertisement of the kind referred to in sections 3, 4, or 5 is prohibited from being imported into or exported from the territories to which the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 extends. Documents containing such advertisements are deemed to be goods whose import or export has been prohibited under section 19 of the Sea Customs Act, 1878 (8 of 1878), and are subject to all of that act's rules.

ISSUE:

Whether the provisions of sec. 8(2)(b) of the Central Sales Tax Act, 1956 suffer from the vice of excessive delegation?

Whether parliament had abdicated its legislative function when it chose to adopt the rate to be fixed by the state legislatures for local sales?

RULE:

Sec. 8(2)(b) of the Central Sales Tax Act 1956 provides that the tax payable by any dealer on his turnover, in so far as it relates to the sale of goods in the course of inter-state trade or commerce, not falling within sub-sec. (1) in case of goods other than declared goods, shall be calculated at the rate of ` per cent or at the rate applicable to the sale or purchase of such goods inside the appropriate state, whichever is higher. etc.

ISSUE:

Whether the purpose of the Act had been defeated as the notification did not provide the residents with an opportunity to object and be heard?

Whether the notification was ultra vires on the ground that it delegated legislative functions?

RULE:

Section 3(1)(f) of the Bihar and Orissa Act empowered the local administration to extend to Patna the provisions of any sections of the Act (Bengal Municipality Act, 1884) subject to such modifications as it deemed necessary.

One of the essential features of the Act was the provision that no such tax could be imposed on a locality without first providing its residents with an opportunity to be heard and object. But these sections that allowed for an opportunity to object were left out of the notification.

ISSUE:

Whether the modifications made in the Bengal Finance (Sales Tax) Act, 1941 were within the powers conferred to the Central government by s. 2 of the Union Territories (Laws) Act, 1950?

RULE:

Modified Section 6 -
6(1) No tax shall be payable under this Act on the sale of goods specified in the first column of the Schedule subject to the conditions etc: and

(2) The State Government [Amended as Central Government in 1956] after giving by notification in the official gazette not less than 3 months notice of its intention to do so, may by like notification add to or omit from or otherwise amend the Schedule and thereupon the Schedule shall he amended accordingly

ISSUE:

Whether Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, and the provisions of the Cotton Cloth Control Order contravened the fundamental right of the appellants guaranteed by Articles and (g) of the Constitution?

Whether Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and in particular Section 4 were ultra vires, the Legislature on the ground of excessive delegation of legislative power?

Whether Section 6 having been found ultra vires, Section 3 was inextricably connected with it and that both the Sections should have been declared ultra vires on that ground?

Whether the impugned Control Order contravened existing laws, viz., the provisions of Sections 28 and 41 of the Indian Railways Act, and was thus void in its entirety?

RULE:

Essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.

As the doctrine of separation of power is followed in our country for guarding the state against any arbitrary or tyrannical powers. But it is impossible to follow it in a very strict sense, the constitution states that the three organs should not interfere in matters of each other. The function performed by the Legislature for the welfare of the state is not easy to be performed due to a lack of time, adaptability, and flexibility. Therefore, Legislature delegates its power to an agent or subordinate for exercising the powers held by the legislature as secondary legislation.

ISSUE:

Whether the notification of the government declaring the operation of the Madras General Sales Tax Act, 1959 suffers from excessive delegation?

RULE:

If any provision confers excessive delegation on the executive, then such a provision is void ab initio or “still born law”.

Therefore, the central notification of April, 1966 suffers from excessive delegation and is void ab initio.

ISSUE:

In the purported exercise of its power under Article 246(4) of the Constitution, can the Parliament delegate its legislative function in favour of executive authority to such an extent as to amount to an abdication of its legislative function?

RULE:

What can be delegated is only the task of subordinate legislation which is by its very nature ancillary to the statute which delegates the power to make it and which must be within the policy and framework of the guidance provided by the legislature.

The power given as such was more like ministerial than legislative power because all that the Government had to do was to study the laws and make a selection out of them.

ISSUE:

Whether there was an undue transfer of authority when the legislature passed a statute regarding bonuses?

RULE:

There is an excessive amount of delegated legislation since section 37 of the Act authorised the Central Government to provide by order for the elimination of doubts or problems in carrying out the provisions of the Act. This is not permitted under delegated law. Section 33 of the statute provides a categorization that is ambiguous and discriminatory. When there are two industrial units, each were treated differently, which the judges deemed illogical. Section 34 was similarly discriminatory since it imposed exceptional responsibility. I concur with the court's conclusion about these portions.