Date of Judgement:
07 September 2005
Bench:
Justice Ashok Bhan
Justice S.B. Sinha
Parties:
Petitioner – The State of Rajasthan
Respondent – BasantNahata
Subject
The Legislature, while delegating the power to legislate to the executive, is required to lay down the criteria or standard so as to enable the delegatee to act within the framework of the statute. Such delegation of power, however, cannot be wide, uncanalised or unguided.
Legal Provisions
- Section 17 of the Rajasthan Registration Act, 1908 - Documents of which registration is compulsory.
- Section 22A of the Rajasthan Registration Act, 1908 - The State Government may, by notification in the official Gazette, declare that the registration of any documents or class of documents or class of document is opposed to the public policy.
- Section 49 of the Rajasthan Registration Act,1908 - Effect of non-registration of documents required to be registered.
- Section 1A of the Power of Attorney Act, 1882 - In this Act, “power-of-attorney” includes any instrument empowering a specified person to act for and in the name of the person executing it.
- Article 245 in the Constitution of India - Extent of laws made by Parliament and by the Legislatures of States.
Overview
- The Respondent was a Khatedar tenant of an agricultural property. He appointed Sukhdeo Singh as an attorney to take careof the agricultural land, and to take necessary actions needed, including cultivating, mortgaging or selling the land and to obtain deeds and documents among other things, by a Power-of-Attorney deed dated 16.7.1999.
- When the said deed was presented to the Sub-Registrar, it was refused on the ground that the presented document was “opposed to public policy” as published in the official Gazette by the State of Rajasthan.
- The notification stated that any power of attorney authorizing the attorney to transfer any immovable property for a term in excess of six months or irrevocably or where the term is not mentioned, was opposed to public policy. The notification was further amended to replace six months with three years.
- The Respondent herein filed a Writ Petition before the Rajasthan High Court challenging the constitutional validity of Section 22A of the Rajasthan Registration Act, 1908. The High Court after careful consideration allowed this Writ Petition, and held Section 22A as unconstitutional and quashed notifications issued pertaining to it. The Court opined that those powers conferred under Section 22A of the Act were arbitrary, as determination of what is opposed to public policy can only be judged by the court and infringes upon the right of the citizens. It further held that the amendment goes against the object of the said Act. Thereafter, an appeal was made to the Supreme Court.
- The Counsel for the Appellant submitted that there is an inherent presumption as to the validity of laws and it is the burden of the aggrieved to prove that his right has been violated. Further, these policies are made to enable the state in management of governmental affairs in a smooth conduct and courts cannot interfere with the same. The issue of ambiguity raised over the words “opposed to public policy” have the same meaning as provided in the Indian Contracts Act, Foreign Awards Act and Arbitration and Conciliation Act. It was also argued that the court cannot invalidate a statute only on basis that there was no framework provided for making subordinate legislation but the courts should refer to the preamble of the Act or from broad reading of the Act in entirety to deduce implicit guidelines.
- This court, after considering the Appellant’s contention and the facts of the case, held that the contention that there is an inherent presumption of validity of a statute is not absolute and its application is possible when there are two possible interpretations.
- The court, while agreeing with the contention that the court cannot invalidate a statute if there is no framework for the delegatee and must refer to the preamble to obtain the objective of the same, held that this can be done if the legislation is ambiguous. Even then, referring to the Preamble, the court could not find anything relating to public policy. It was further observed that a doctrine which is vague or uncertain cannot and does not provide any guideline.
- This court finding no merit in the appeal dismissed it.
Issue
- Whether the notification issued by the State of Rajasthan in exercise of power conferred under Section 22A of the Act is arbitrary and unconstitutional?
Judgement Analysis
- Execution of power of attorney is valid as it does not contravene any provisions of law. Hence, the transaction is valid. The Rajasthan Registration Act does not impose any bar, or term it illegal. Rather the Act solely focuses on the certain class of documents which is opposed to public policy. Therefore, execution of power of attorney is not made illegal and a subordinate legislation cannot act outside its scope. A substantive law, without any statutory guideline providing uncanalised scope which hinders in exercising a legal right, was held to be void.
- The term public policy is dynamic as it changes according each fact and circumstance and cannot be contained in a static definition. This is such that it is described “a very unruly horse”. This is because due to the changing circumstance in each case, there may not be enough precedents and once on the horse, we may not know how far it may go. Given the caution and consideration, it requires the judiciary to decide on those matters and not the executive.
- It should also be noted that only ancillary or supplementary procedural powers should be delegated. Essential functions of legislation rests with the legislature as provided under Section 245 of the Constitution and cannot pass the buck to the executive. If it is delegated, the legislature must provide a framework or guidelines to establish the scope of work. When the substantive law in itself is vague, the subordinate legislature cannot derive any guidelines.
- The court replied to a contention, wherein it was stated that the court cannot interfere in a policy matter, that when policy is not in line with the constitutional mandate, it cannot be held a valid policy and it is devoid of any merit.
- If a provision is prima facie unconstitutional, it cannot be saved from the rule that there is presumption as to the validity of the statute and the burden will lie upon the aggrieved party.
Conclusion
Although the legislature has the power to delegate the power, it should not be uncanalised and unguided. It should provide criteria and direction for the delegatee to work under a framework. While providing the guideline for delegation of subordinate legislation, it need not provide a detailed direction but a broad framework and the object of the legislation. It is observed that when the wordings of a legislation are vague and ambiguous, the court should interpret with a presumption that the legislation is valid and should try to make a meaning that is valid and in line with the object of enacting the legislation. However, when it is prima facie violative and no alternate meaning can be construed, the presumption does not stand valid.
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