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excessive delegation

English · Constitutional and administrative

Meaning. Delegation by the legislature of its essential legislative function, without laying down policy or guidance, which is invalid.

The legislature may delegate power to make subordinate legislation, but it must itself lay down the legislative policy and give guidance for its implementation. If it hands over the essential function of deciding policy, or gives the executive uncontrolled power, the delegation is excessive and the parent provision is unconstitutional.

The principle comes from In re Delhi Laws Act, where the majority held that power to extend laws with modifications was valid, but a power to repeal or alter an existing law in its essential features was not. The court looks for policy in the preamble, the scheme and the provisions of the Act. The doctrine tests the parent Act, while ultra vires tests whether the rule exceeds the Act.

Example

A section allowing the Government to levy “such tax as it thinks fit”, with no ceiling or guidance, would fall for excessive delegation.

In Indian law

See also

delegated legislation · delegatus non potest delegare

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