Delegated legislation must be accompanied by clear legislative policy and guidelines to avoid uncanalised discretion, which is unconstitutional.

Chettur Sankaran Nair, J.

1. Petitioners complain of grant of parole to convict prisoners, guided solely by whims and humour of the Government. They say that the Authorities turn the Nelson's eye to genuine cases, and grant parole to others, on the basis of letters issued by personal staff of Ministers, Members of Legislature and patty men. Those paroled, often do not come back to serve the remaining sentences, according to petitioners.

2. It is alleged (Crl. M. C. 1565/92) that one K. A. Devaseykutty, Koyickara House, Kanjoor, convicted of the offence of cheating has been overstaying and enjoying parole, engaging himself in contract work. in the meanwhile. Newspaper reports are also pressed into service to contend that such instances have been common,

3. The State ambits that atleast Devaseykutty and Kasim (mentioned in Crl. M. P. 190/93) have been at large, overstaying parole. Files produced, reveal that parole had been granted at the instance of Private Secretaries to Ministers, Legislators etc. (For example, Convict No. 8436 Joy, C No. 4636 Suku alias Sukumaran). They reveal further that grant of parole is not bated on any discernible or predictable principle. I do not wish to go into the facts in detail.

4. Petitioner in OP 3489/93 seeks a declaration that R.452 (BB) of the Kerala Prison R.1958 is unconstitutional, arbitrary and violative of Art.14 of the Constitution of India. The rule reads:

"Notwithstanding anything contained in Chap.26 of these Rules Government may, in deserting cases, great leave to any prisoner, exempting him from all or any of the provisions relating to the granting of leave".

(emphasis supplied)

According to petitioner, the rule confers arbitrary, unguided and uncanalised power on the Government, to act on whims and in a manner abhorrent to rule of law.

5. Counsel for petitioners relied on the decision in 'In Re art 143' (AIR 1951 SC 333) to contend that legislature cannot part with its essential legislative function of declaring policy, leaving the delegate free to act according to its will. The decisions in State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75) Hamdard Dawakhana v. Union of India (AIR 1960 SC 554), Vasan Lal v. State of Bombay (AIR 1961 SC 4), State of M.P. v. Baladeo Prasad (AIR 1961 SC 293), Shama Rao v. Union Territory of Pondichery (AIR 1967 SC 1480), State of Punjab v. Khanchand (AIR 1974 SC 543). State of Maharashtra v. Mrs. Kamal Sukumar Durgule (AIR 1985 SC 119) and A. N. Parasuraman v. State of Tamil Nadu (AIR 1990 SC 40) were also relied on, to support this contention.

6. In State of West Bengal v. Anwar All Sarkar (AIR 1952 SC 75), the Court struck down unlimited discretion granted to the State Government without guidelines, to select cases to be tried by the Special Tribunal. in Vasan Lal (AIR 1961 SC 4), delegated legislation was struck down, as legislative policy was not indicated. Legislation did not enumerate the grounds or conditions upon which the power was to be exercised. Again in Shama Rao (AIR 1967 SC 1480), the Court held that abdication or effacement of legislative function, conferring uncanalised powers without guidelines to the executive, was unconstitutional. Legislative policy cannot be delegated.

7. Legislature cannot visualise every situation that may arise, and indicate how to deal with it. It can only declare) legislative policy and objectives, leaving it to subordinate legislation, to carry out purposes of the Act. Delegated legislation is a well known device. But, basic legislative functions cannot be surrendered to the delegatee.

8. Subordinate or delegated legislation is bounded by the extent of delegation:

"If a power exists by Statute, character or custom to make bye laws, that power must be exercised strictly in accordance with the provisions of the Statute."

(Craies on Statute Law - 7th Edition Page 324.)

The same view is expressed by H. W. R. Wade:

"Rules