Manasvin Andra: Excessive Delegation and Separation of Powers in India’s Right to Information Legislation

On July 25, 2019, the Rajya Sabha passed the Right to Information (Amendment) Act, 2019 amid widespread protests from members of civil society. The Amendment was criticised on the grounds of neutering India’s landmark Right to Information Act, 2005, as it rendered the Information Commission subservient to the Central Government. The fact that the Government refused to consult with stakeholders only added to the furore surrounding the Amendment, and its passage into law portends a bleak future for the vital values of accountability and transparency.

A significant amount of analysis has been carried out examining the constitutional validity of the Amendment, however, an administrative law perspective on the issue is yet to present itself. The present article attempts to fill this void by examining the Amendment through the lens of administrative law. It is submitted that the case against the Amendment rests primarily on two grounds: first, that the Amendment it suffers from the vice of excessive delegation; and second, that it violates the doctrine of separation of powers.

Excessive Delegation

Delegated legislation has been defined by Salmond as “that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority.” According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses: (a) exercise by a subordinate agency of the legislative power delegated to it by the legislature, or (b) the subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by the legislature.”

The concept of delegated legislation attracted a great deal of controversy and debate in the early years of the Constitution, and at least the theoretical aspects of the issue seem settled with the Supreme Court’s pronouncements in In Re: Delhi Laws Act, 1912 and Gwalior Rayon Mills Mfg. Co. Ltd v. Assistant Commissioner of Sales. Though the Court has upheld and struck down delegated legislation in a number of cases in the intervening years, these cases have stood the test of time as they contain the most comprehensive deliberations on the concerned issue.

The Delhi Laws case was the result of a Presidential Reference under Article 143, wherein the Court was required to adjudicate the validity of the Delhi Laws Act, 1912 which conferred powers on the government to extend the application of the law as it saw fit. The case provoked contentious debates amongst the judges, with each member of the 7 Judge Bench delivering an opinion in the matter.

Despite a considerable amount of overlap among the 7 opinions, the consensus – contained in Kania CJ’s opinion – was that “the power to delegate legislative functions generally is not warranted under the Constitution of India at any stage.” Though wide latitude has been given to Parliament in terms of what it can delegate, the consensus states authoritatively that this power is limited to “conditional” or “subsidiary” legislation. By conditional legislation the Court meant that the legislature would frame the law, and it would be the prerogative of the executive to implement it when conditions demanding such implementation were achieved. As by the Court stated, “the legislature must declare the policy of the law and fix the legal principles which are to control in given cases and must provide a standard to guide the official or the board empowered to execute the law.”

This reasoning was advanced in Gwalior Rayon Mills Mfg. Co., where it was reiterated that the essential legislative function was the determination of the legislative policy and its formulation as a rule of conduct. Further, the Court warned against the legislature overstepping the limits of delegation: “It may not lay down any policy at all; it may declare its policy in 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.” It was stated that the legislature could not be allowed to abdicate its legislative power as that would fall beyond the permissible limits of delegation.

Given the extant position of law, it is submitted that the present Amendment suffers from the vice of excessive delegation as Parliament has laid down no discernible policy in either the text of the Act or in the accompanying Statement of Objects and Reasons. According to the original Act, Information Commissioners were to enjoy the same term of office and salaries as those of the Election Commissioners – which is a constitutional body – in order to provide for neutral decision making and to safeguard their independence. However, the Amendment does away with this provision, replacing both with provisions that may be “prescribed by the Central Government.”

According to the Statement of Objects and Reasons, the logic behind distinguishing between the Election Commission and Information Commission is that the former was established by the Constitution and performed functions relating to elections, whereas the latter is a statutory body formed under the 2005 Act with a completely different mandate. Further, the section dealing with delegated legislation states that the delegation in the present case is of a “normal character”, as according to the government, it was not “practicable” to provide for rules of “procedure or administrative details” in the Bill itself.

It is submitted that the Amendment does not stand scrutiny as the legislature has not declared the standard to be followed by the Government when prescribing rules for the term of office and remuneration of the Information Commissioners. Recall the pronouncement of the Court in the Delhi Laws case: the legislature must declare the policy of the law and fix a policy standard to guide the subordinate authority empowered to execute the law. It is therefore necessary for the legislature to declare a standard, which the executive must then keep in mind while formulating rules. In the present case, no such standard has been laid down by the legislature, as the Statement of Objects and Reasons simply – and erroneously – distinguishes the Information Commission and Election Commission.

In Hamdard Dawakhana v. Union of India, the Court struck down Section 3(d) of the Drugs and Magical Remedies Act – which used the term “or any other disease or condition which may be specified in rules made under this Act” – on the ground that there was no legislative policy on the basis of which the diseases were to be identified. Similarly, the legislature in the present case has conferred powers upon the government without providing a policy on the basis of which the requisite rules are to be framed. There is clear abdication on the part of the legislature, which contravenes the established position of the Court on the question of delegated legislation.

Contravention of the Doctrine of Separation of Powers

The Indian Constitution does not prescribe a strict separation of powers; however, it has been implicitly recognised and protected as part of the basic structure by the Supreme Court. The understanding of the doctrine that currently holds the field was laid down in Rai Sahib Ram Jawaya Kapur v. State of Punjab where the Court held that despite the Constitution not recognising the doctrine of separation of powers in its absolute rigidity, “the functions of the different parts or branches of the Government have been sufficiently differentiated.” Consequently, it was stated that the Constitution did not contemplate the assumption of one organ’s functions by another.

Going further, the Supreme Court in B. Rajagopala Naidu v. The State Transport Appellate Tribunal, Madras held that separation of powers also operated in the domain of quasi-judicial authorities. Here, the Court held that objective administration of the law required decisions of the Judge or Tribunal to be free of extraneous guidance by the executive or administrative wing of the State. Fetters on the exercise of quasi-judicial authority would make the exercise of such authority completely inconsistent with the well accepted notion of judicial process.

It is submitted that the same independence of functioning is to be accorded to the Information Commission, which been held to be a quasi-judicial authority by the Supreme Court in Namit Sharma v. Union of India. In that case the Court held that a statutory authority exercises quasi-judicial functions when it is required to adjudicate between two or more parties who contest each other’s claims, and found that the Information Commission exercised quasi-judicial functions since it dealt with a lis between parties. Further, the Act in S. 18(3) endows the Information Commission with the powers of a Civil Court, and on this basis the Court held that the Commission possesses the essential attributes and trappings of a Court.

As a result, the Amendment clearly violates the doctrine of separation of powers, as governmental control over Commissioners’ terms of office and conditions of service amount to interference with the independent functioning of the Information Commission. By conferring upon the government the power to regulate the Commission’s conditions of service, the Amendment raises the prospect of the body becoming pliant and subservient to the government. Therefore, it is submitted that the Amendment contravenes the doctrine of separation of powers, as it permits the executive to control the functioning of a quasi-judicial body tasked with discharging constitutional duties.

Manasvin Andra is a fourth-year student at NALSAR University of Law, Hyderabad.


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