[The following guest post is
contributed by Vinod Kothari and Vrinda Bagaria of Vinod Kothari & Company.
These can be reached at [email protected] and [email protected]
extensive nature of rule making powers conferred upon the Central Government
under the Companies Bill, 2011]
makes legislation, and the executive, that is, the Central government or any
other statutory authority, is primarily concerned with the implementation of
the law, but is quite often given powers to make rules. The power of
rule-making commonly comes by words such as “as may be prescribed” in the law.
Bill 2012 goes a little overboard in liberally setting aside matters which may
be prescribed by the Central Government.
The word “prescribed” occurs 416 times in the Bill. Though at lots of
instances where the said word is used, the idea may be the prescription of the
form/e-form whereby filing is to be done, there is an enormous extent of law
that is reserved for prescription by the executive in form of rules. This would
mean, besides the law with 470 sections and 5 schedules, subjects will have to
keep in mind the massive body of rules to be framed under the law.
has its own advantage – rules are flexible, and may be amended from time to
time without going to the Parliament. Rules may contain matters of details, for
example, the procedural rules, which may be parked into rules to keep the body
of the law light.
there is a curious balance between what needs to be in the law and what may be
parked into the rules. There are certain matters which relate to the very core,
the vey policy of the regulation. For instance, whether a particular regulation
will apply to a private limited company or not cannot be left for the executive
to decide. Given the nature of the curb being imposed, it may be wholly
inappropriate for the Parliament to apply the law in general, and then give a
scope for the executive to relax it for a class of companies.
of Private companies, small companies and one person companies
notice that exemptions in case of private companies, unlike the existing Act,
are not a part of the law in the Bill – these are to be notified by the Central
Government. However, the liberties
enjoyed by private companies are not a matter of magnanimity on the part of the
executive. Given the nature of a private company, it is a closed group of
persons with strictly private fund raising, and hence, there is no question of
certain regulatory concerns for such companies. It is not sufficient in such
cases to say, the executive may exempt such companies from certain provisions.
One good example is the provisions applicable to private placements. Every
issue of securities, in case of a private company, is a private placement. If
the placement is a private affair, there is no reason for the intervention of
the law. There is large restrictive set of rules applying to private placements
under the Bill.
There is no good reason for such rules to be applicable to private companies.
This is something which is an integrated part of the philosophy of the law, and
cannot be left for the rules to lay down.
of excessive delegation: Balancing between subordinate law and Parliamentary
between Parliamentary law and subordinate law has been one of the key features
of our Constitution and our legislative set up. Unlike England, the principle
of subordinate legislation in India is inspired by the US constitution.
wherein it was held that the Congress can delegate legislative powers to the
Executive subject to the condition that it lays down the policies and
establishes standards while leaving to the administrative authorities the
making of subordinate rules within the prescribed limits.
attitude on the principle of excessive delegation. The Constitution of India
does not contain specific provisions for delegated legislations. It imposes
restrictions based on general theories and principles of constitutional law and
judicial precedents. The purpose for introducing the principle for delegated
legislation is that the legislature being over
burdened and the needs of the modern day society being complex it cannot
possibly foresee every administrative difficulty that may arise after the
Statute has begun to operate. Delegated legislation
fills those needs and comes to aid during situations of emergency. However, this does not imply
that the doctrine of delegated legislation can be used arbitrarily or
unreasonably. The Parliament can only delegate to the executive the power to
make ancillary or sub-ordinate legislations to the principal legislation and
not the principal legislation itself.
section 6(2) of the Bombay Tenancy and Agricultural Lands Act, 1948 was
challenged on the ground of excessive delegation, the Hon’ble Supreme Court
held that a statute challenged on the ground of excessive delegation should be
subjected to two tests i.e.:
it delegates essential legislative function or power; and
the legislature has enunciated its policy and principle for the guidance of the
that there is a danger inherent in the process of delegation, also opined that:
vague and general terms; it may not set down any standard for the guidance of
the executive, it may confer an arbitrary power on the executive to change or
modify the policy laid down by it without reserving for itself any control over
subordinate legislation. This self effacement of legislative power in favour of
another agency either in whole or in part is beyond the permissible limits of
delegation. It is for a Court to hold on a fair, generous and liberal
construction of an impugned statute whether the legislature exceeded such
limits. But the said liberal construction should not be carried by the courts
to the extent of always trying to discover a dormant or latent legislative
policy to sustain an arbitrary power conferred on executive authorities.”
wide powers to the Central Government to prescribe the applicability or
non-applicability of some provisions to a certain class of companies’ which
might in the long run lead to arbitrary exercise of powers and hence excessive.
Earlier also, there have been many statutes where the provisions were made
applicable to a certain class or certain area and simultaneously, the
government was authorized to make those provisions applicable to the excluded
classes or areas as well, as the case may be.
rightly quoted what was laid down by the American Judges as an exception to the
general rule of delegated legislation, that
a law to delegate a power to determine some fact or state of things upon which
the law makes, or intends to make, its own action depend – To deny this would
be to stop the wheels of government.”
Justice Fazl Ali, also observed that:
legislative body can delegate to another department of the government, or to
any other authority, the power, either generally or specially, to enact laws.
The reason is found in the very existence of its own powers. This high
prerogative has been entrusted to its own wisdom, judgment, and patriotism, and
not to those of other persons, and it will act ultra vires if it undertakes to
delegate the trust, instead of executing it.”
observations, the Hon’ble Supreme Court admitted the necessity of a delegated
legislation and formulated the general limit of delegation on the broad formula
that “what cannot be delegated is its
of Raj Narain v. Chairman, Patna
Administration subtly summed up
the limitations laid down in Delhi Laws Act case as:
power by delegation;
not contemplated in the Constitution.
that along with the power of delegated legislation, also comes hand to hand the
power of discretion conferred on the administration. ‘Rule-making power’ and
‘discretionary power’ can be said to constitute two sides of the same coin i.e.
delegated legislation. It implies that subordinate legislation is a medium for
administrative authorities to further confer discretionary powers upon
themselves by formulating rules to that effect. In spite conferral of such
arbitrary powers of rule-making and exercise of discretion by the administrative
authorities, the courts have taken a backseat and hardly rendered any statute
or legislation invalid on grounds of excessive delegation unless the same
appears widely to be so, on the face of the provision. Even when the courts
have found the delegated legislation to confer wide powers on the administration,
availability of safeguards have been held to be sufficient against the abuse of
power. This only shows that the standard accepted as sufficient has been so
general and vague that it raises a doubt on whether it solves the purpose of
controlling administrative discretion.
the present epoch, both the legislative as well as the judicial authorities
have very conveniently overlooked the restrictions applicable in case of
delegated legislation and adopted a more lenient approach towards the doctrine
of delegated legislation such that the legislature lays down the general
provisions of law leaving the specification to be filled in by the executives.
Sometimes, the executive authority is also conferred with the power of
modifying the existing statute before its application which is in essence a
drastic power resulting in an amendment to the statute itself, essentially the
same being a function of the legislature.
2012, is also an example of excessive delegation as major arenas have been left
open for the government to make rules on the same, as is evident from a bare
reading of the provisions. Moreover essential provisions required to be
incorporated in the Bill, for instance, in the case of a private company, small
company or a one person company, the legislature has completely failed to
provide that the law will be applicable to companies involving public interest.
become an integral part in the legislative process. Nevertheless, it should not
be used excessively so as to defeat the purpose which legislation seeks to
achieve and to render it ineffective. It is the primary and most essential duty
of the legislature to frame the laws of a country and it should not try to
escape from its duty under the garb of subordinate legislation. Proper checks
and balances should be imposed to ensure that the doctrine of delegated
legislation is adopted reasonably. The legislature alone cannot be held
responsible for the arbitrary exercise of authority under delegated legislation
and the judiciary has an equally important role to play in ensuring the same.
Bill, 2012 is a significant step taken by the legislature to effectively
regulate corporate affairs in India and to improvise the present Companies Act,
1956 according to the current requisitions of the corporate world. However, leaving such major areas in the Bill
open to the discretion of the administration shall prove to be a hindrance in
meeting the true intent and purpose of the statute in the future. It is
necessary to bear in mind that the statute should not be drafted to fulfil the
short-term goals of the society but be sufficient to meet the requirements of
the present as well as the future. The true intention to a statute can be
accorded only by the law-makers of the society i.e. the legislature and not the
executive. The executive can only be delegated enough powers to ‘fill in the
gaps’ where necessary and nothing in excess of the same. In the backdrop of
such considerations, there is a need to review the statute and eliminate any
possibility of excessive delegation.
Vinod Kothari & Vrinda Bagaria
Maganbhai Sanjanwala v. The State of Bombay & Ors.
Developments in Indian Administrative Law, Page 141-142.