Foreign Decisions-Part..II Contd..

In a case  , the Constitutional Bench of South Africa observed as follows.In this case the Bench was analysing the implication of delegation of power in case of delegated legislation. It referred to these decisions to seek some guidance only.The following citation may be skipped through.It is  given only for the sake of completeness and pertains to the delegation of powers in the case of sub-ordinate legislation.[Blogger]

Although decisions in foreign jurisdictions should never be slavishly adopted, [See for example Bernstein and Others v Bester and Others NNO [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at para 133 (per Kriegler J); Alexkor Ltd and Another v Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) at para 33.] a brief examination reveals that there is much that is similar between our law on delegation and the decisions of foreign courts. I consider that the manner in which they have dealt with similar issues on this aspect provides helpful guidance. In particular, a large number of common-law jurisdictions have adopted the presumption against sub-delegation contained in the maxim delegatus delegare non potest, subject generally to the exception that Ministers may freely of necessity delegate within their own departments.  This has become known as the “Carltona principle” The English Court of Appeal in Carltona above n 22 at 563 held that in order to allow the smooth functioning of government, Ministers are always entitled to have their functions exercised by officials in their departments as it is the Minister that remains responsible to Parliament. This rule is however confined to delegation within government departments. 
[See also Lewisham Borough Council and Another v Roberts [1949] 1 All ER 815 at 829 and Wade and Forsyth Administrative Law 8 ed (Oxford University Press, New York 2000) at 325.] 


In England [King-Emperor v Benoari Lal Sarma [1945] AC 14; Jackson, Stansfield and Sons v Butterworth [1948] 2 All ER 558 at 564-66. See also Craig Administrative Law 5 ed (Sweet and Maxwell, London 2003) at 523 and De Smith, Woolf and Jowell De Smith, Woolf and Jowell’s Principles of Judicial Review (Sweet and Maxwell, London 1999) at 227 and 233] Australia[R v Lampe and Others; Ex Parte Madalozzo (1963) 5 FLR 160; Long v Knowles [1968] Tas SR 46. See also Pearce and Argument Delegated Legislation in Australia 2 ed (Butterworths, Australia 1999) at 269-70 and Skyes, Lanaham, Tracey and Esser General Principles of Administrative Law 4 ed (Butterworths, Australia 1997) at 34.] and New Zealand,[ Geraghty v Porter [1917] NZLR 554; Hawke’s Bay Raw Milk Producers’ Co-operative Co Ltd. v New Zealand Milk Board [1961] NZLR 218.  ] the position is that delegation is less likely to be implied if a power is legislative in nature or if the decision involves the exercise of a wide discretion .[ The only time the Supreme Court of Canada has considered the sub-delegation of legislative powers was in Reference as to the Validity of the Regulations in Relation to Chemicals [1943] SCR 1 where it found that emergency war-time legislation permitted the delegation of regulation-making power. This decision should however be confined to the exceptional circumstances of the case. See Dussault and Borgeat Administrative Law: A Treatise 2 ed, Volume I (Carswell, Toronto 1985) at 416. The majority of Canadian authors argue that legislative powers are less likely to be delegated by implication. See id at 416 Jones and De Villars Principles of Administrative Law 3 ed (Carswell, Toronto 1999) at 140; Mullan Administrative Law 3 ed (Carswell, Toronto 1996) at 194.] 


In Canada the Supreme Court has regularly held that an authority cannot enact regulations that effectively turn the exercise of a power that was meant to be dealt with by it through regulation into a discretionary administrative power to be exercised by itself or another body.[ See Vic Restaurant Inc v City of Montreal [1959] SCR 58; City of Verdun v Sun Oil Company Ltd [1952] 1 SCR 222; Brant Dairy Company Ltd et al v Milk Commission of Ontario et al 30 DLR (3d) 559 (SCC). ]


The extent of delegation and the degree of control retained by the delegator have also been examined.[ See for example Credite Suisse and Another v Waltham Forest LBC [1997] QB 362; Cohen v West Ham Corporation [1933] Ch 814 at 826-27; R v Board of Assessors of Rates and Taxes of the City of Saint John (1965) 49 DLR (2d) 156; Labour Relations Board of Saskatchewan v Speers and Regina Undertakers Employees Federal Union[1948] 1 DLR 340. 


According to Wade and Forsyth "


[t]he vital question in most cases is whether the statutory discretion remains in the hands of the proper authority, or whether some other person purports to exercise it.” Wade and Forsyth above n 28 at 316. ] In Allingham and Another v Minister of Agriculture and Fisheries [[1948] 1 All ER 780.]for example, a committee had the wartime power to order farmers to grow certain crops on specific fields. With respect to one farmer they left the decision of which field should be used to their executive officer. The exercise of power was held to be invalid, but the Court noted that there would have been no problem if the committee had acted itself on the recommendation of the officer. There are also a number of Canadian and English decisions that suggest that it is impermissible to set as an administrative condition, compliance with the regulations of a private bodyn Ellis v Dubowski [1921] 3 KB 621 it was held that a County Council could not delegate its power to decide whether a film could be shown by declaring that any film approved by the British Board of Film Censors, a private body, could be shown. Similarly, a Canadian Court has held that a by-law requiring owners to build fences around their swimming pools that contained the additional requirement of the consent of neighbouring landowners, impermissibly delegated the municipal council’s power to private land owners.[Re Davies and Village of Forest Hill [1965] 1 OR 240. 


The court in Michie v M.D. of Rocky View No 44 et al (1968) 64 WWR 178 (Alta) at 182-83 declared invalid permits issued on the condition that they complied with requirements set by a private entity. The delegation has been found to be unlawful in each of these cases although the fact that the body is private has never been the reason given for the decision.]

AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006)


It is to be observed that the position is almost similar to the approach adopted by Supreme Court  of India 

Foreign Decisions as an Aid to Interpretation

For the purpose of construction of Indian statutes, courts also refer to decisions of foreign courts which are following same system of jurisprudence as ours. The assistance of such decisions is subject to the qualification that prime importance is always to be given to the language of the relevant Indian statute, the circumstances and the setting in which it is enacted and the relevant conditions in India where it is to be applied. These foreign decisions have persuasive value only and are not binding on Indian courts and where guidance is available from binding Indian decisions, reference to foreign decisions is of no use (see Forasol v ONGC, AIR 1984 SC 241; General Electric Co. v. Renusagar Power Co., (1987) 4 SCC 137).

While interpreting provisions relating to fundamental rights contained in the Indian Constitution, Supreme Court took much assistance from American precedents.

In case where an International Convention is involved, it is obviously desirable that decisions in different jurisdictions across the world should so far as possible be kept in line with each other. Therefore, in such cases foreign decisions are more useful for guiding the courts.

The following passage is very authentic statement of the Apex Indian court which states clearly that the context of the statue and the foreign decisions should be seen first before application of these types of situations.The case pertains to the constitutional issues.I quote below:

"Elaborate arguments have been advanced about the applicability of the foreign decisions, more particularly, the American Courts. It is to be noted that the American cases which have been highlighted by the petitioners relate essentially to strict classification, strict scrutiny and narrow tailoring. This issue is of considerable importance when so much debate is taking place about respect being shown by courts of a country to a decision of another country. The factual scenario and the basic issues involved in the cases sometimes throw light on the controversy. It has been rightly contended by Mr. Vahanvati and Mr. Gopal Subramanium that there is a conceptual difference between the cases decided by the American Supreme Court and the cases at hand. In Saurabh Chaudri and Ors. v. Union of India and Ors. (2003 (11) SCC 146) it was held that the logic of strict classification and strict scrutiny does not have much relevance in the cases of the nature at hand. If one looks at the different Statutes in India, Article 14 of the Constitution is conceptually different from 14th Amendment to the American Constitution as was noted in State of West Bengal vs. Anwar Ali Sarkar (1952 SCR 284) and State of Bombay and Anr. v. F.N. Balsara (1952 SCR 682). In Anwar Ali's case (supra) at pages 363 and 364 it was noted as follows:
"I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times.
They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact; Do these "laws" which have been called in question offend a still greater law before which even they must bow?"
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS [2008] INSC 614 (10 April 2008)


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