This article has been written by Prachi Gupta, pursuing B.A. LL.B (Hons) from Institute of Law Nirma University, Ahmedabad.
It has been rightly pointed out that bulk of the legislation in the county as vast and diverse as India emanated from the executive body (also known as “Delegated Legislation”) rather from the legislature itself. It not only ensures that the legislature made law is being supplemented but also ensures that it lays down the nuances of the law which the central body of legislature might overlook. An excellent example of this can be seen in the case of Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & Ors where the State of Kerala had promulgated the rules under the Abkari Act, 1902 for the social welfare of the dispossessed Arrack and Toddy workers. Before dwelling further into the facts and analysis of the case, it is necessary to first understand the concept of delegated legislation which is central to the case.
Salmond has defined Delegated Legislation 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”
Delegate here means more than an agent exerting authority from the principle. Where the agent has no power to build its own rules and laws, the delegatee body retains all the power to act concurrently on matters on the area of the delegated authority. However, there are limits to the power of enactment of the legislation. Various judgements of Indian courts have been posed with the question of the validity of subordinate legislation and have come with a test. Since delegate derives its power from the plenary legislation, it should be intra vires of the legislation itself.
To simplify, the delegated legislation should not be against the scheme and scope of the provisions of the parent legislation. Also, while doing so, it should conform to the main object and legislative policy while enacting the delegated legislation. To see whether the delegated legislation follows the purpose or the legislative policy formulated by the parliament, the court has to determine the object and purpose of the act.
Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & Ors.
Facts of the Case:
The facts of the case are very straightforward. Sale of Arrack was banned by the Kerala State Government on 1st April 1996. To rehabilitate people who lost their jobs due to the ban were given a compensation of Rs. 30,000, among other things under the Akbari Workers Welfare Fund Board Act. After a lapse of six years from the date of ban on the sale of arrack, the government framed rule 4(2) of the Kerala Abkari Shops Disposal Rules 2002 (hereafter the “Abkari Rules”) of Kerala Abkari Act, 1902, (hereafter the “Abkari Act”) Under this rule it was made mandatory for each licensed toddy shop to absorb one arrack worker.
This benefit given to the arrack workers was also extended to the toddy workers, of the toddy shops that were closed having no limit in number for absorption. The benefit was given only to those workers who were registered with the Toddy Workers Welfare Fund Board as on 31st March 2000.
Aggrieved by the Rule 4(2), the Kerala SamsthanaChethuThozhilali (Toddy Tappers) Union and the Toddy Shop Owners (license holders) filed a case before the learned single Judge of the Kerala High Court. The learned single Judge upheld the validity of rule 4(2) on the ground that the action of State as a Welfare State banning the sale of liquor is valid. The State is entitled to make such rule for the protection of workers who were unemployed.
Further, it held that the State is empowered to frame such rule on the basis of entries 23 and 24 of List III of the Seventh Schedule of the Constitution of India. Dissatisfied with the decision of the learned single Judge, the parties of a dispute filed an appeal to the Division Bench of the High Court. The Division Bench upheld the judgment of the learned single Judge. Aggrieved by the decision of the division bench, the toddy workers union appealed to the Supreme Court of India.
Contention Raised by the Toddy Workers
The major contention of the Toddy workers before the Supreme Court was that the State in making the Abkari Rules has transgressed its power of delegated legislation as the Act does not contain any provision as regards the adoption of welfare measures to be taken by the State. This was backed by the concept that:
First, rules which are made in conformity of the provisions of any act has to be within the scope of the parent legislation and cannot in violative of the legislation;
Second, that the delegates legislation has to conform to the legislative policy which is laid down by the plenary legislation and
Third, the social welfare aspect of the workers is governed by the Industrial Dispute Act, under which the State has no competency to make the impugned rules.
Although S. 29(1) of the Abkari Act gives the state the power to make delegated legislation, it is nowhere for the rehabilitation of