Author-: CA. Yogesh S. Limaye can be
reached at yogesh@salcoca.com
Appendix
(a)
Section 145 of the Act
section 145 reads as
[Method of accounting.82
145. (1) Income chargeable under the
head "Profits and gains of business or
profession" or "Income from other
sources" shall, subject to the provisions of
sub-section (2), be computed in
accordance with either cash or mercantile
system
of
accounting
82
regularly employed by the assessee.
(2) The Central Government may notify in
the Official Gazette83 from time to
time 83a[accounting
standards] to
be
followed by any class of assessees or in
respect of any class of income.
(3) Where the Assessing Officer is not
satisfied about the correctness or
completeness of the accounts of the
assessee, or where the method of
accounting provided in sub-section
(1) 83b[or accounting standards as notified
under sub-section (2), have not been
regularly followed by the assessee], the
Assessing Officer may make an
assessment in the manner provided
in section 144.]
Section-145 (2) of Income tax Act,1961
empowers Central Government(CG) to
issue Accounting Standards for
computation of Income. Earlier in 1996
CG had notified only two accounting
standards i.e. ‘Disclosure of Accounting
Policies’ & ‘ Disclosure of Prior Period
Items and Extraordinary Items and
Changes in Accounting Policies’. During
December 2010 Central government (CG)
constituted a committee to draft Income
Computation and Disclosure
Standard(ICDS). In August 2012 the
committee provides draft of 14 tax
accounting standards which were issued
for public comments and after revision
now CG notified 10 ICDS which is to be
effective from FY:2015-16 & AY:2016-17.
By virtue of applicability of Indian
Accounting Standards(IndAS) by MCA, it
will have a greater impact on preparation
and presentation of financial Statements.
The main focus of IndAS is to provide
clarity of presentation in financial
statements to investors. But In order to
harmonize with the provision of the
IndAS for computation of income to be
chargeable under the head Profit and
gains of business or profession” or “
Income from other sources” ICDS has
been brought into the picture.
(b)
Schedule III to the Companies Act,
2013
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Schedule III
(See section 129)
GENERAL INSTRUCTIONS FOR
PREPARATION OF BALANCE SHEET AND
STATEMENT OF PROFIT AND LOSS OF A
COMPANY
GENERAL INSTRUCTIONS
1. Where compliance with the
requirements of the Act including
Accounting Standards as applicable to the
companies require any change in
treatment or disclosure including
addition, amendment, substitution or
deletion in the head or sub-head or any
changes, inter se, in the financial
statements or statements forming part
thereof, the same shall be made and the
requirements of this Schedule shall stand
modified accordingly.
2. The disclosure requirements specified
in this Schedule are in addition to and not
in substitution of the disclosure
requirements specified in the Accounting
Standards prescribed under the
Companies Act, 2013. Additional
disclosures specified in the Accounting
Standards shall be made in the notes to
accounts or by way of additional
statement unless required to be disclosed
on the face of the Financial Statements.
Similarly, all other disclosures as required
by the Companies Act shall be made in the
notes to accounts in addition to the
requirements set out in this Schedule.
(c)
Preamble to each ICDS.
Preamble to each ICDS.
……..
In the case of conflict between the
provisions of the Income-tax Act, 1961
(‘the Act’) and this Income Computation
and Disclosure Standard, the provisions
of the Act shall prevail to that extent.
(d)
Notification of ICDS
[TO BE PUBLISHED IN THE GAZETTE OF
INDIA, EXTRAORDINARY, PART-II,
SECTION 3, SUB-SECTION (ii)]
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
(CENTRAL BOARD OF DIRECT TAXES)
NOTIFICATION
New Delhi, the 31st March, 2015
INCOME-TAX
S.O. 892 (E) In exercise of the powers
conferred by sub-section (2) of section
145 of the
Income-tax Act, 1961 (43 of 1961) and in
supersession of the notification of the
Government of
India in the Ministry of Finance,
Department of Revenue, published in the
Gazette of India, Part
II, Section 3, Sub-section (ii), vide number
S.O 69(E) dated the 25th January, 1996,
except as
respects things done or omitted to be
done before such supersession, the
Central Government
hereby notifies the income computation
and disclosure standards as specified in
the Annexure to
be followed by all assessees, following the
mercantile system of accounting, for the
purposes of computation of income
chargeable to income-tax under the head
“Profit and gains of business or
profession” or “ Income from other
sources”. This notification shall come into
force with effect from 1st day of April,
2015, and shall accordingly apply to the
assessment year 2016-17 and
subsequent assessment years.
(e)
Another Notification for
comparison purposes.
[TO BE PUBLISHED IN THE GAZETTE OF
INDIA, EXTRAORDINARY, PART-II,
SECTION 3, SUB-SECTION (ii)]
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
Source- www.taxguru.in
(DEPARTMENT OF REVENUE)
(CENTRAL BOARD OF DIRECT TAXES)
NOTIFICATION
New Delhi, the 24 April, 2015
INCOME-TAX
SECTION 35(1)(ii) OF THE INCOMETAX ACT, 1961 - SCIENTIFIC RESEARCH
EXPENDITURE - APPROVED SCIENTIFIC
RESEARCH
ASSOCIATIONS/INSTITUTIONS –
PANDIT DEENDAYAL PETROLEUM
UNIVERSITY, GUJARAT
NOTIFICATION NO. 43/2015 [F. NO.
203/11/2014/ITA-II], DATED 24-42015
It is hereby notified for general
information that the organization Pandit
Deendayal Petroleum University Raisan
Gandhi
Nagar
Gujarat,
(PANAABTP3856A) has been approved by the
Central Government for the purpose of
clause (ii) of sub-section (1) of section 35
of the Income-tax Act 1961 (said Act),
read with rules 5C and 5E of the Incometax Rules, 1962 (said Rules), from AY2014-2015 and onwards under the
category 'University. College or Other
Institution', for the Departments/schools
under its aegis which are engaged in
scientific research activities only, subject
to the following conditions, namely:—
…….
…….
(f)
Discussion on law making power of
Parliament and that of a sub-
ordinate body.
SUPREMACY OF PARLIAMENT
The law-making body is the Parliament. A
statute is the joint act of the President, the
Rajya Sabha, and the Lok Sabha; while
each of these has its own functions. New
law can be made, and the old repealed
only by these three “Estates of the Realm”
acting together, i.e., the Parliament, or by
some persons or body of persons to
whom the Parliament has delegated
authority to make rules having the force
of law. An act of Parliament must be
enforced by all Courts as the law of the
land, unless it is repealed or amended by
the Parliament itself or it is violative of
the Constitution. There is nothing that the
Parliament cannot lawfully do within,
however, the limits as laid down by the
Constitution.
POWER OF LEGISLATURE IS SUBJECT
TO CONSTITUTIONAL LIMITS
The Legislature has the power to make
law or amend or validate the law declared
by the Court. This power to pass a law
postulates the power to pass it
prospectively or retrospectively. That, of
course, is subject to constitutional
limitations. Constitution operates as a
higher law. Any Act which transgresses
the mandates of the higher law becomes
unconstitutional, and, thus, not only the
executive but the Legislature itself is
limited by that higher law.
Constitution is the fundamental law of the
State and all acts have their origin in it. No
Act, therefore, can be above the
Constitution as the stream can rise no
higher than the source. Though the power
of the Legislature to enact law is absolute
within the sphere assigned to it, that
power has to conform to the
constitutional limitations. Transgression
of those would render an Act
unconstitutional and invalid.
TAXATION IS PREROGATIVE OF
LEGISLATURE
The limits to the right of the public
authority to impose taxes are set by the
power that is qualified to do so under the
constitutional law. In a democratic
system, this power is with the Legislature,
not with the executive or judiciary.
Taxation is a prerogative of the
Legislature. The historical origins of this
principle are identical with those of
political liberty and representative
Government - the right of citizens, “no
taxation without consent” was the rule of
the Declaration of the Rights of Man and
the Citizens proclaimed in ‘French
Revolution’, in the English Bill of Rights of
1689
and
the
Declaration
of
Independence of the United States.
In India, the doctrine is embodied in
Article 265 of the Constitution. The
Legislature is omnipotent in the exercise
of the taxing prerogative. Whereas the
right to impose taxes and to determine
the circumstances under which these will
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be done is the privilege of the legislative
power, administration of the tax law is
the responsibility of the executive power.
Certain limitations on the taxing power of
the Legislature are self-evident. Since the
power to raise taxes is a prerogative of
the public authority, the Government has
only the right to impose a levy insofar as
it is competent to do so. Under this
principle, all that is necessary is that the
rights of the tax administration and the
corresponding
obligations
of
the
taxpayers be specified in the law, that is,
in the text adopted by the peoples’
representatives. The implementation of
the tax is generally regulated by the
executive power.
SUBORDINATE LEGISLATION
SUBORDINATE
LEGISLATION
NECESSITY
Subordinate legislation, also called
delegated legislation, consists of orders,
rules, regulations, directions, bye-laws,
etc., made by a person or body other than
the legislative authority by virtue of
powers conferred by statute. Here is a
combination of two organs of the
Government; Legislature and Executive.
The growth of legislative power of the
executive is a significant development of
the 20th century. The theory of lassez
faire has been given a go-by and large and
comprehensive powers are being
assumed by the State with a view to
improve social and economic well-being
of the people. Most of the modern socioeconomic legislations passed by the
Legislature lay down the guiding
principles of the legislative policy. The
Legislature, because of limitation upon
them and the time factor, hardly can go
into the matters in detail. The practice of
empowering the executive to make
subordinate legislation within the
prescribed sphere has evolved out of the
practical necessity and pragmatic needs
of the modern State (Ajay Kumar
Banerjee v. Union of India (1984) 65 FJR;
AIR 1984 SC 1130). The power of
delegation is a constituent element of the
legislative power as a whole under article
245 of the Constitution and other relative
articles.
The increasing complexities of modern
administration and the need for flexibility
capable of rapid readjustment to meet
changing circumstances, which cannot
always be foreseen, in implementing our
socio-economic policy pursuant to the
establishment of a welfare State as
contemplated by our Constitution, have
rendered it convenient, practical and
almost necessary for the Legislature to
have frequent resort to the practice of
delegating subsidiary or ancillary powers
to delegates of their choice.
The necessity for delegated or conditional
legislation arises since the statutory laws
cannot provide for all possible
contingencies because one cannot
visualise various permutations and
combinations of human conduct and
behaviour. The Legislature is not always
in session. It has been found both
convenient and necessary for the
Parliament to delegate the actual exercise
of law-making powers to the executive.
No one doubts that the delegation of
powers in this fashion is a practical
necessity. Even if Parliament had the
time, it would not have the skill to frame
all the multifarious rules of a statutory
nature which good administration
requires1—
Valid delegation of legislative power Tests - For valid delegation of legislative
power, the tests laid down by the
Supreme Court in Avinder Singh v. State of
Punjab AIR 1979 SC 321, are :
(i) the Legislature cannot efface itself;
(ii) it cannot delegate the plenary or the
essential legislative function;
(iii) even
if
there
be
delegation,
Parliamentary control over delegated
legislation should be a living continuity as
a constitutional necessity.
The Supreme Court also observed :
“While what constitutes an essential
feature cannot be delineated in detail it
certainly includes a change of policy. The
Legislature is the master of legislative
policy and if the delegate is free to deal
with policy, it may be usurpation of
legislative power itself.”
Subordinate legislation - Guidelines When the Legislature enacts laws to meet
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the challenge of the complex socioeconomic problems, they often find it
convenient and necessary to delegate
subsidiary or ancillary powers to
delegates of their choice for carrying out
the policy laid down by the Acts as part of
the administrative law. The Legislature
has to lay down the policy and principle
to afford guidance for carrying out the
said policy before it delegates its
subsidiary powers in that behalf [see
Vasanlal Maganbhai Sanjanwala v. State
of Bombay AIR 1961 SC 4; (1961) 1 SCR
341]. The Legislature should, before
delegating, enunciate either expressly or
by implication, the policy and the
principles for the guidance of the
delegates. The effect of these principles is
that the delegate which has been
authorised to make subsidiary rules and
regulations has to work within the scope
of its authority and cannot widen or
constrict the scope of the Act or the policy
laid down thereunder (Agricultural
Market Committee v. Shalimar Chemical
Works Ltd. AIR 1997 SC 2502).
Thus, for example, the power to fix the
rate of tax is a legislative power but if the
Legislature lays down the legislative
policy and provides the necessary
guidelines, that power can be delegated to
the executive. The Supreme Court has
been liberal towards delegation of
legislative power to the executive though
the Act is still tested with regard to the
guidelines provided therein and the need
for declaration of the legislative policy.
The decision of the Supreme Court
in Registrar of Co-operative Societies v. K.
Kunjabmu2 is exhibitive of this trend.
Section 60 of the Madras Co-operative
Societies Act, 1932, provided that the
State Government may, by a general or
special order, exempt any registered
society from any of the provisions of the
Act or may direct that such provision
shall apply to such society with such
modification as may be specified in the
order. This provision was impugned as
unconstitutional delegation of legislative
power, but the Supreme Court rejected
the same on the ground that the Act
contained sufficient guidelines in the
exercise of that power, though the
Supreme Court described the decision as
“a near Henry VIIIth clauses”. Inspite of
this characterization, the provision was
upheld.
Merely on the ground that the Legislature
has entrusted the power to alter, modify,
vary the tax, the provision cannot be held
to be impermissible delegation provided
the legislation has given its policy and the
Act provides sufficient guidelines.1
The Supreme Court upheld the provisions
of section 6(2) of CP and the Berar Sales
Tax Act, 1947 on the ground that it is not
unconstitutional for the Legislature to
leave it to the executive to determine
details relating to the working of the
taxation laws, such as the selection of
persons on whom the tax is to be laid, the
rates at which it is to be charged in
respect of different classes of goods and
the
like.
The
Supreme
Court
in Corporation
of
Calcutta v. Liberty
Cinema2 held that fixation of rates of taxes
may be legitimately left by a statute to a
non-legislative authority for there is no
distinction
in
principle
between
delegation of power to fix rates of taxes to
be charged on different classes of goods
and power to fix rates simpliciter; if
power to fix rates in some cases can be
delegated, then equally the power to fix
rates generally can be delegated.
In N.K.
Papiah
&
Sons v. Excise
Commissioner3, section 22 of the
Karnataka Excise Act, 1966 was
impugned on the ground of impermissible
delegation of legislative power. That
section conferred on the Government a
power to fix the rates of excise duty. It
was contended that there is no control
over the delegates and, therefore, the
section is bad. It was rejected. The
Supreme Court held that legislative
control over delegated legislation may
take many forms and in this case
legislation has control over the delegates.
In BHEL Employees’ Association v. Union of
India [2003] 261 ITR 15 (Kar.), sub-clause
(vi) of section 17(2) of the Income-tax Act,
1961 (which states that perquisites
include the value of any other fringe
benefits or amenity as may be prescribed,
leaving the power of determining which
item should be treated as “fringe benefit”
Source- www.taxguru.in
or “amenity” to the Board which the
Board has to do by means of the rules
framed on that behalf) was challenged as
suffering from vice of excessive
delegation as giving uncontrolled,
unguided and arbitrary power to the
executive. The Karnataka High Court
observed (head note) :
“The words ‘fringe benefit’ or ‘amenity’
are well understood, both in daily and in
commercial use; and in the backdrop of
the provision contained in sub-clauses (i)
to (v) of clause (2) of section 17 of the Act,
the power given to the Board to identify
‘fringe benefit’ and ‘amenity’ is not open
to challenge on the ground that it is
unguided, arbitrary or suffers from the
vice of excessive delegation.”
Subordinate legislation - Legislative
Control - The Legislature retains in its
own hand, the essential legislative
function which consists in declaring the
legislative policy and lays down the
standard which delegates the power to
make it effective. The Legislature retains
control is evident from a provision where
such power is delegated enjoining upon
the delegate to lay before the Parliament,
the rules made thereunder. The Supreme
Court observed as follows in Ajay Kumar
Banerjee v. Union of India AIR 1984 SC
1130 :
“It is also to be borne in mind that that
scheme and every amendment to a
scheme framed under section 16 shall be
laid as soon as may be after it is made
before each House of Parliament. The last
provision is indicative of the power of
superintendence that the Legislature
maintains
over
the
subordinate
legislation or scheme made by delegate
under the authority given under the Act.”
Legislature has preserved its capacity
intact as it could at any time repeal the
legislation and withdraw the authority
and discretion it had vested in the
delegate and, therefore, the Legislature
had not abdicated its functions or created
a parallel Legislature. Even conferring a
power to amend or modify would not
amount to impermissible delegation of
legislative power. In fact in the system of
parliamentary democracy, the legislative
control over the delegate is implicit and
the impermissible delegation could rarely
be found.1
The rules made or the notification issued
are laid before the Parliament as soon as
may be after their issue and the
Parliament may amend or reject them.
This shows that the ultimate law-making
power is retained by the Legislature in its
hands. It does not surrender it to the
executive. This makes it clear that
Parliament has not in any way abdicated
the authority, but is keeping strict
vigilance and control over its delegate.
In Quarry Owners’ Association v. State
of Bihar [2000] 8 SCC 655, a Division
Bench of the Supreme Court observed :
“48. In a democratic set-up, every State
Government is responsible to its State
Legislature. When any statute requires
mere laying of any notification or rule
before
the
Legislature
its
executive,viz., the
State
Government
comes under the scrutiny of the
Legislature concerned. Every function and
every exercise of power, by the State
Government is under one or the other
Ministry which in turn is accountable to
the Legislature concerned. Where any
document, rule or notification requires
placement before any House or when
placed, the said House inherently gets the
jurisdiction over the same, each member
of the House, subject to its procedure gets
the right to discuss the same, they may
put questions to the Ministry concerned.
Irrespective of the fact that such rules or
notifications may not be under the
purview of its modification, such
Members may seek explanation from such
Ministry of their inaction, arbitrariness,
transgressing limits of their statutory
orbit on any such other matter. Short of
modification power, it has a right even to
condemn the Ministry. No doubt in the
case where the House is entrusted with
power to annul, modify or approve any
rule, it plays a positive role and has full
control over it, but even where the matter
is merely placed before any House, its
positive control over the executive makes
even mere laying to play a very vital and
forceful role which keeps a check over the
State Government concerned. Even if
submission for the appellants is accepted
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that mere placement before a House is
only for information, even then, such
information, inherently in it makes the
Legislature to play an important role as
aforesaid for keeping a check on the
activity of the State Government. Such
placement cannot be construed to be non
est. No Act of Parliament should be
construed to be of having no purpose. As
we have said, mere discussion and
questioning the Ministry concerned or
authority in the House in respect of such
laying would keep such authority on
guard to act with circumspection which is
a check on such authority, specially when
such authority is even otherwise
answerable to such Legislature....” (p.690)
It was further observed :
“We also find there are few provisions in
our Constitution which require mere
laying before Parliament. Article 151
requires laying of the report of the
Comptroller
and
Auditor
General
of Indiabefore each House of Parliament
and with reference to the State, to be laid
before the Legislature of the State. Article
338(5) requires placing of the report of
the Commission before each House of
Parliament and with reference to the
State Government, under sub-article (7) it
is required to be laid before the
Legislature of the State. Though they are
mere provisions for mere laying before
Parliament, but it is always open to any
member of the House to discuss and
comment on the said report.” (p.695)
It was, inter alia, concluded :
“(d) Requirement of mere placement of the
rules or the notifications before the State
Legislature is also one of the forms of
check on the State Government to
exercise its powers as a delegatee.”
(p.969)
An Act may merely provide for laying
down the rules before both the Houses of
the Legislature. It may not speak of the
necessity to obtain permission or prior
approval therefor by the Houses of the
Legislature. Only in the event the
Legislature is not satisfied with the
sufficiency or otherwise of the reasons
assigned, it may direct that the same
would operate prospectively. In the event,
a negative resolution is adopted, the rules
will cease to have the force of law. In case
the rule is given retrospectively, the
members of both the Houses of the
Legislature shall be apprised of the
reasons therefor. In the case of the rule
which is prospective in nature, simple
laying down before both the Houses
would serve the statutory object.
Laying down of a subordinate legislation
before both Houses of the Legislature is
directory in nature. (See Prohibition &
Excise Superintendent v. Toddy Tappers
Co-op. Society (2004) 13 ILD 49 (SC).
In Atlas Cycle Industries Ltd. v. State of
Haryana [1979] 2 SCC 196, the Supreme
Court noticed that there are three
different laying clauses which assure
different forms depending on the degree
of control which the Legislature may like
to exercise, namely,—
(i) Laying without further procedure,
(ii) Laying subject to negative resolution,
(iii) Laying subject to affirmative resolution.
Upon considering a large number of
Indian and English decisions, it was held :
“32. From the foregoing discussion, it
inevitably follows that the Legislature
never intended that non-compliance with
the requirement of laying as envisaged by
sub-section (6) of section 3 of the Act
should
render
the
order
void.
Consequently, non-laying of the aforesaid
notification fixing the maximum selling
prices of various categories of iron and
steel including the commodity in question
before both Houses of Parliament cannot
result in nullification of the notification....”
(p.210)
SUBORDINATE LEGISLATION - EXTENT
AND LIMITS OF DELEGATION
The Legislature cannot repose any power,
essentially legislative, in another body or
organ; it cannot efface itself and set up a
parallel legislative authority; it must
exercise its judgment on vital matters of
policy and enact the general principles
which should be embodied in the
legislation. But it can confer upon any
person or body, fit to exercise it, the
power to work out details and particulars
for carrying out its policy and in order to
give effect to the legislation in a particular
direction. It is not possible to lay down
any hard and fast rule for determining
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whether a matter is of principle and
policy or whether it is one of details,
ancillary to the statute for carrying it into
effect. The question, though often beset
with difficulty, has to be answered with
reference to the nature of the impugned
legislation.1
The Legislature cannot delegate its power
to make a law but it can make a law to
delegate powers to determine some facts
or state of things upon which the law
makes or intends to make its own action
depend. The law being flexible, having
laid down broad principles of its policy,
the Legislature then can leave the details
to be supplied by the administrator to
adjust
to
the
rapid
changing
circumstances. What is left to the
administrative official is not the
legislative determination of what public
policy demands but simply the
ascertainment of what the facts of the
case require to be done according to the
terms of the law by which it is governed.1
The
Supreme
Court,
in Arnold
Rodricks v. State of Maharashtra2 laid
down that the delegation is necessary and
rules, made are ‘ancillary’ to and
‘subserve’ the purpose of the Act. It is not
unconstitutional for the Legislature to
leave it to the executive to determine
details. The observations of Justice
Mukherjee in Delhi Laws Act, 1912,
reported in (1951) SCR 747; AIR 1951 SC
332 are relevant in this regard :—
“The essential legislative function consists
in the determination or choosing of the
legislative policy and of enacting that
policy into a binding rule of conduct. It is
open to the Legislature to formulate the
policy as broadly and with as little or as
much details as it thinks proper and it
may delegate the rest of the legislative
work to a subordinate authority who will
work out the details within the
framework of that policy.”
The effect of the policy and the principles
laid down by the Legislature for the
guidance of the delegates, is that the
delegate which has been authorised to
make subsidiary rules and regulations has
to work within the scope of its authority
and cannot widen or constrict the scope
of the Act or the policy laid down
thereunder. It cannot, in the garb of
making rules, legislate on the field
covered by the Act and has to restrict
itself to the mode of implementation of
the policy and purpose of the Act
(Agricultural
Market
Committee v. Shalimar Chemical Works
Ltd. AIR 1997 SC 2502. Excessive
delegation or total surrender or transfer
of legislative function is not permissible.
Mere delegation of effectuation of
legislative
policy
to
subordinate,
subsidiary ancillary legislation while
retaining the control by the legislative
itself is permissible [Mahe Beach Trading
Co. v. Union
Territory
of
Pondicherry (1996) 3 SCC 741].
SUBORDINATE
LEGISLATION
POWERS
OF
RULE
MAKING
AUTHORITIES
1.6 The rule-making authority has no
plenary power. It has to act within the
limits of the power granted to it. The basis
of the statutory power conferred by the
statute cannot be transgressed by the
rule-making authority.3 By delegated
legislation, the delegate completes the
legislation by supplying details within the
limits
prescribed
by
the
3a
statute. In Gwalior Rayon Silk Mfg. &
Wvg. Co. Ltd.v. A. CST4, it was held that the
Legislature in conferring power upon
another authority to make subordinate or
ancillary legislation must lay down policy,
principle, or standard for the guidance of
the authority concerned. The principle is
well-settled that essential legislative
function consists of determination of the
legislative policy and its formulation as a
binding rule of conduct and cannot be
delegated by the Legislature. Nor is there
any unlimited right of delegation inherent
in the legislative power itself. This is not
warranted by the provisions of the
Constitution. The Legislature must retain
in its own hands the essential legislative
functions and what can be delegated is
the task of subordinate legislation
necessary for implementing the purposes
and objects of the Act.1
In Shree Siddheshwar Sahakari Sakhar
Karkhana Ltd. v. State of Maharashtra2,
the Bombay High Court held :
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“It is also well established that delegation
of legislative power is permissible only
when the legislative policy and principles
are adequately laid down and the
delegate is only empowered to carry out
the legislative policy within the guidelines
laid down by the Legislature. It is also
well established that the Legislature
cannot abdicate its authority and cannot
pass on to some other body the obligation
and responsibility imposed on it by the
Constitution, but it can only utilise other
bodies or authorities for the purpose of
working out details of essential principles
laid down by it.” (p. 91)
Thus, the rule-making authority has to act
within the framework of guidelines laid
down by the Legislature, and within the
limits of power granted to it. The rules
made under those powers are ‘ancillary’
and ‘subserve’ the purpose of the Act.
(g)
Powers of Supreme Court and high
Courts
Law declared by Supreme Court to be
binding on all courts
141. The law declared by the Supreme
Court shall be binding on all courts within
the territory of India.
Jurisdiction of existing High Courts
225. Subject to the provisions of this
Constitution and to the provisions of any
law of the appropriate Legislature made
by virtue of powers conferred on that
Legislature by this Constitution, the
jurisdiction of, and the law administered
in, any existing High Court, and the
respective powers of the Judges thereof in
relation to the administration of justice in
the Court, including any power to make
rules of Court and to regulate the sittings
of the Court and of members thereof
sitting alone or in Division Courts, shall be
the same as immediately before the
commencement of this Constitution: 1
[Provided that any restriction to which
the exercise of original jurisdiction by any
of the High Courts with respect to any
matter concerning the revenue or
concerning any act ordered or done in the
collection
thereof
was
subject
immediately before the commencement
of this Constitution shall no longer apply
to the exercise of such jurisdiction.]
Power of High Courts to issue certain
writs.
226. (1) Notwithstanding anything in
article 32 3 *** every High Court shall
have power, throughout the territories in
relation to which it exercises jurisdiction,
to issue to any person or authority,
including in appropriate cases, any
Government, within those territories
directions
orders or writs, including 1 [writs in the
nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari,
or any of them, for the enforcement of any
of the rights conferred by Part III and for
any other purpose.] (2) The power
conferred by clause (1) to issue
directions, orders or writs to any
Government, authority or person may
also be exercised by any High Court
exercising jurisdiction in relation to the
territories within which the cause of
action, wholly or in part, arises for the
exercise of such power, notwithstanding
that the seat of such Government or
authority or the residence of such person
is not within those territories. 2 [(3)
Where any party against whom an
interim order, whether by way of
injunction or stay or in any other manner,
is made on, or in any proceedings relating
to, a petition under clause (1), without—
(a) furnishing to such party copies of such
petition and all documents in support of
the plea for such interim order; and (b)
giving such party an opportunity of being
heard, makes an application to the High
Court for the vacation of such order and
furnishes a copy of such application to the
party in whose favour such order has
been made or the counsel of such party,
the High Court shall dispose of the
application within a period of two weeks
from the date on which it is received or
from the date on which the copy of such
application is so furnished, whichever is
later, or where the High Court is closed on
the last day of that period, before the
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expiry of the next day afterwards on
which the High Court is open; and if the
application is not so disposed of, the
interim order shall, on the expiry of that
period, or, as the case may be, the expiry
of the said next day, stand vacated.]
(4) The power conferred on a High Court
by this article shall not be in derogation of
the power conferred on the Supreme
Court by clause (2) of article 32.]
Power of superintendence over all courts
by the High Court
227. (1) Every High Court shall have
superintendence over all courts and
tribunals throughout the territories in
relation to which it exercises jurisdiction.]
(2) Without prejudice to the generality of
the foregoing provision, the High Court
may— (a) call for returns from such
courts; (b) make and issue general rules
and prescribe forms for regulating the
practice and proceedings of such courts;
and (c) prescribe forms in which books,
entries and accounts shall be kept by the
officers of any such courts. (3) The High
Court may also settle tables of fees to be
allowed to the sheriff and all clerks and
officers of such courts and to attorneys,
advocates and pleaders practising
therein: Provided that any rules made,
forms prescribed or tables settled under
clause (2) or clause (3) shall not be
inconsistent with the provision of any law
for the time being in force, and shall
require the previous approval of the
Governor. (4) Nothing in this article shall
be deemed to confer on a High Court
powers of superintendence over any
court or tribunal constituted by or under
any law relating to the Armed Forces.
Transfer of certain cases to High Court.
228. If the High Court is satisfied that a
case pending in a court subordinate to it
involves a substantial question of law as
to the interpretation of this Constitution
the determination of which is necessary
for the disposal of the case, 2 [it shall
withdraw the case and 3 *** may—] (a)
either dispose of the case itself, or (b)
determine the said question of law and
return the case to the court from which
the case has been so withdrawn together
with a copy of its judgment on such
question, and the said court shall on
receipt thereof proceed to dispose of the
case in conformity with such judgment.
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