Over the years, the Supreme Court has applied the essential legislative functions standard to determine the validity of delegated legislation. In Rojer Mathew v South Bank India Ltd., although the Court was primarily concerned with the constitutionality of the composition of tribunals, it also considered whether the power to prescribe qualifications for tribunal members could be validly delegated to the Executive. This aspect of the judgment, being secondary to the main issue, has largely gone unnoticed. While addressing it, the majority upheld the delegation. It derived the requisite legislative policy from its own prior precedents and, on that basis, found the delegation to be valid. It then proceeded to examine the rules framed under the statute, ultimately striking them down.
The minority, however, departed from this established approach. It did not apply the essential legislative functions standard in its conventional form. Instead, it treated the issue as one involving important constitutional concerns and applied a stricter threshold. On this basis, it held that the power itself could not be delegated and struck down the parent provision altogether.
This piece argues that while the minority in Rojer Mathew seeks to correct the dilution of the essential legislative functions doctrine, its standard is unworkable, and suggests a more coherent alternative within the existing framework. I begin by showing that the minority in Rojer Mathew departs starkly from the prevalent essential legislative functions standard laid down by Mukherjea J. in the In re Delhi Laws case. I then argue that the diluted application of this standard is constitutionally indefeasible, and that the minority’s approach fails to address these concerns. Finally, drawing on Bose J.’s opinion in the In re Delhi Laws case, I propose modifying the existing framework by requiring a higher degree of legislative policy guidance in cases where constitutional concerns are most significant.
Mukherjea J.’s Essential Legislative Functions Standard And The Minority In Rojer Mathew
In the In re Delhi Laws case, the Supreme Court was deciding on the scope of the delegation of legislative power. Mukherjea J. held that the Constitution prescribed a legislative process that conferred upon the Parliament the power to enact valid law (¶227). This meant that the primary law-making power rested with the Legislature and could not be delegated to the Executive. However, this did not mean that the Parliament could not delegate any law-making power to the Executive. Rather, the Court held that it was only the ‘essential’ legislative functions that must be exclusively discharged by the Legislature. These functions included the determination of legislative policy, that is, the choice of the substantive goals the law seeks to achieve, and enacting it into a binding rule of conduct for the Executive to follow (¶243). Once these functions are discharged by the Legislature, it could delegate subordinate law-making authority to the Executive. This power must be used as ancillary to the main legislative function to facilitate the exercise of legislative authority by the Parliament (¶227). It could not be used by the Parliament to abdicate its legislative responsibility by delegating its primary law-making powers to the Executive.
In contrast, the minority in Rojer Mathew while deciding on the validity of the delegation of the power to decide the qualifications for appointment of key personnel to various tribunals took a different view. Chandrachud J. held that prescribing qualifications for tribunal members is intrinsic to their specialized adjudicatory role (¶338, 339). Gupta J. emphasised the constitutional significance of delivering justice to people attached to these posts (¶366). The appointment of personnel was therefore found to be closely tied to the principles of the rule of law and judicial independence. On this basis, it was held that the Legislature could not have delegated this essential legislative function to the Executive (¶367).
Despite their common use of ‘essential legislative function’, the standard in Rojer Mathew minority departs starkly from Mukherjea J.’s view which has prevailed over the years. In contrast with the requirement of a policy and rule guiding conduct, the minority held that law-making power affecting important constitutional values cannot be delegated. This marks a shift to a substantive, value-laden standard instead of the general policy and guidance standard prevalent earlier. Further, the minority’s test in Rojer Mathew acts as a threshold requirement. It must be shown as a preliminary step that the subject-matter of delegation is sufficiently removed from important constitutional values before the question of the existence of legislative policy arises.
It may be argued that the Rojer Mathew minority’s standard merely adds contours to the existing test since determining what is “essential” necessarily involves value judgments. However, this argument conflates two distinct inquiries. Under Mukherjea J.’s standard, the question of what is “essential” is answered procedurally: has Parliament itself laid down the policy and the rule of conduct? The minority’s standard, by contrast, asks a substantive question: does the subject matter implicate important constitutional values? These are not the same inquiry, and the latter cannot be seen as a mere refinement of the former.
Dilution Of The Essential Legislative Functions Standard And The Limits Of The Rojer Mathew Minority
The application of the essential legislative functions standard has been diluted over the years. Courts have required only a minimal level of policy guidance to satisfy the standard. In Ramesh Birch v. Union of India, the Court held that where the Legislature restricted the Executive’s choice of policy to those already enacted by other state legislatures, this constituted sufficient guidance (¶264). On this basis, the delegation of law-making power was upheld as permissible.
Courts have also expanded the sources from which the existence of policy may be inferred. For this, they have increasingly referred to the scheme, the preamble and the subject matter of the statute. This tendency reached its extreme in Rojer Mathew, where the Court treated prior judicial decisions as themselves supplying the requisite policy guidance for the exercise of delegated power (¶143).
This manner of applying the essential legislative functions standard has led to constitutionally indefeasible results. First, courts are increasingly attempting to identify policy where none can be inferred clearly. This means that courts are in effect supplying policy instead of merely reviewing whether it satisfies the standard. However, the judiciary is unsuited to discharge these policy functions and lacks competence beyond its adjudicatory role. It therefore erodes separation of powers.
Second, the judiciary’s reluctance to strike down laws for lack of clear policy incentivises the Parliament to enact vague and indeterminate legislation. This allows Parliament to avoid making hard policy choices and evade its primary law-making responsibility. The standard as applied in its current form therefore also undermines legislative responsibility.
These deficiencies in the diluted essential legislative functions standard cannot be remedied by adopting the Rojer Mathew minority’s approach, which bars delegation related to important constitutional concerns at the threshold. The justifications for delegation of law-making power recognized by courts include expediency, flexibility and expertise. These are the strongest in contexts where the Executive must play a substantial and not merely marginal role within the bounds of legislative policy. In welfare legislation, for instance, effective implementation requires the executive to determine beneficiaries and the specific benefits to be distributed. These functions cannot be discharged by conditional delegation which only allows the Executive to decide when the legislation shall come into force. The standard would disallow delegation where it is the most necessary. It is therefore not a viable alternative to the prevalent position.
It may be argued that the standard applied by the minority in Rojer Mathew is limited to a particular subject matter. It is confined to areas implicating important constitutional values, and does not extend to economic policy, such as welfare legislation. However, applying this standard would require courts to first distinguish between legislation that implicates these values and that which does not. This distinction is difficult to sustain, since in most cases, the exercise of legislative power is likely to bear, at least indirectly, on important constitutional values. Even welfare legislation which is typically viewed as a matter of economic policy, directly implicates social and economic justice which is a core constitutional commitment (Preamble, Article 38(1) of the Constitution).
Moreover, the constitutional values invoked by the minority are themselves broad and open-ended. Concepts such as the rule of law and judicial independence do not have fixed, determinate content, and courts have historically read them expansively. This means that virtually any exercise of delegated legislative power could be brought within their ambit, leaving little room for delegation to operate at all. The standard is therefore practically unworkable as it would unduly restrict delegation while ignoring the legitimate role of administrative discretion.
Adopting Bose J.’s View Alongside a Calibrated Essential Legislative Functions Standard
A more coherent method, drawing on the opinion of Bose J. in the In re Delhi Laws case, would be to distinguish between specific legislative powers of Parliament expressly conferred by particular constitutional provisions and its general legislative powers exercised in respect of ordinary matters (¶374). The former refers to situations where the Constitution entrusts Parliament with the duty of determining a specific matter within defined limits, often in connection with constitutional guarantees. The latter, by contrast, concerns Parliament’s broad authority to legislate on subjects which is exercised routinely in enacting law. While a threshold bar on delegation of legislative power applies in the former case, the latter may be delegated subject to the existence of a legislative policy and rule guiding behaviour.
The standard prescribed by Bose J., unlike the Rojer Mathew minority’s standard does not risk sliding into a wholesale bar on delegation of legislative power by linking most policies to constitutional concerns. This is because it does not entail an assessment of the impact of the policy on the constitutional principles at play in a given case. Rather, the Court analyses the particular provision to see whether the power to legislate arises from the text of the Constitution.
Arguably, by restricting the bar on delegation to these few cases, Bose J.’s standard fails to protect important constitutional concerns, by reverting these matters to the essential legislative functions standard. However, this does not require a separate standard that bars delegation at the threshold altogether. It may be addressed by adjusting the requirement of legislative policy to suit the importance of the subject matter involved. Based on a contextual evaluation in each case, courts may therefore determine that a higher standard of sufficiency of policy guiding conduct must be satisfied in cases engaging important constitutional values.
Conclusion
In this piece, I have shown that while the minority in Rojer Mathew correctly identifies the problems caused by the dilution of the essential legislative functions doctrine, its proposed standard is ultimately unworkable. It is both overinclusive and inconsistent in practice. A more coherent approach is to retain the existing framework while refining it. Drawing on Bose J.’s formulation, courts must require a higher degree of legislative policy guidance in cases involving significant constitutional concerns. This allows for stricter limits on delegation without undermining the need for administrative discretion.
Author Bio: Pranav Mittal is a second-year B.A. LL.B. (Hons.) student at the National Law School of India University (NLSIU), Bengaluru.
[Editorial note: This piece was edited by Hansika Nukavarapu and published by Vedang Chouhan from the Student Editorial Board]
