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[Is it permissible for the legislature to delegate legislative power to a subordinate authority – limits within which this could be done]
Reference was made by the President of India under Article 143 of the Constitution asking the Court’s opinion on three questions:
“(1) Was Section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act?”
Section 7 of the Delhi Laws Act, 1912 read:
“The Provincial Government may, by notification in the Official Gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.”
“(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act?”
Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 read:
“Extension of Enactments to Ajmer-Merwara. – The Central Government may, by notification in the Official Gazette, extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification.”
“(3) Is Section 2 of the Part ‘C’ States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament?”
Section 2 of the Part ‘C’ States (Laws) Act, 1950 read:
“Power to extend enactments to certain Part ‘C’ States. – The Central Government may, by notification in the Official Gazette, extend to any Part ‘C’ State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part ‘C’ State.”
MUKHERJEA, J. – 273. The necessity of seeking the advisory opinion of this Court is stated to have arisen from the fact that because of the decision of the Federal Court in Jatindra Nath Gupta v. Province of Bihar [AIR 1949 FC 175], which held the proviso to sub-section (3) of Section 1 of the Bihar Maintenance of Public Order Act, 1947, ultra vires the Bihar Provincial Legislature, by reason of its amounting to a delegation of its legislative powers to an extraneous authority, doubts have arisen regarding the validity of the three legislative provisions mentioned above, the legality of the first and the second being actually called in question in certain judicial proceedings which are pending before some of the High Courts in India.
274. The Delhi Laws Act, 1912 was passed by the Governor-General-in-Council at its legislative meeting that being the legislature constituted for British India at that time, under the provisions of the group of statutes known as Indian Councils Acts (1861-1909). Delhi, which up till the 17th of September, 1912, was a part of the province of the Punjab, was
created a Chief Commissioner’s Province on that date and on the following date the Governor-General’s Legislative Council enacted the Delhi Laws Act, 1912 which came into force on and from the 1st of October, 1912.
277. It will be noticed that in all the three items of legislation, mentioned above, there has been, what may be described, as conferment by the legislatures, which passed the respective enactments, to an outside authority, of some of the powers which the legislative bodies themselves could exercise; and the authority in whose favour the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws, any restrictions or modifications as it thinks fit. The controversy centres round the point as to whether such delegation was or is within the competency of the particular legislature which passed these enactments.
278. The contention of the learned Attorney-General, who represents the President of India, in substance is that a legislature which is competent to legislate on a particular subject has the competence also to delegate its legislative powers in respect of that subject to any agent or external authority as it thinks proper. The extent to which such delegation should be made is entirely a matter for consideration by the legislature itself and a court of law has no say in the matter. There could be, according to the learned Attorney-General, only two possible limitations upon the exercise of such right of delegation by a competent legislative body. One is that the legislature cannot abdicate or surrender its powers altogether or bring into existence a new legislative power not authorised by the constitutional instrument. The second is that if the constitutional document has provided for distribution of powers amongst different legislative bodies, one legislature cannot delegate to another, powers, which are vested in it, exclusively under the Constitution. It is argued that, save and except these two limitations, the doctrine of inhibition of delegation by legislative authority has no place in a Constitution modelled on the English system which does not recognise the principle of separation of powers as obtains in the American system. These questions are of great constitutional importance and require careful consideration.
279. In America the rule of inhibition against delegation of legislative powers is based primarily upon the traditional American doctrine of “separation of powers.” Another principle is also called in to aid in support of the rule, which is expressed in the well-known maxim of private law, “delegatus non potest delegare”, the authority for the same, being based on one of the dicta of Sir Edward Coke. The modern doctrine of “separation of powers” was a leading tenet in the political philosophy of the 18th century. It was elaborated by Montesquieu in his “L’esprit des lois” in explanation of the English political doctrine and was adopted, in theory at least in all its fulness and rigidity by the constitution-makers of America. The Constitution of America provides for the separation of the governmental powers into three basic divisions – the executive, the legislative, and the judicial and the powers appertaining to each department have been vested in a separate body of public servants. It is considered to be an essential principle – underlying the Constitution that powers entrusted to one department should be exercised exclusively by that department without encroaching upon the powers confided to others. As is said by Cooley, “The different classes of power have been apportioned to different departments; and as all derive their authority from the same
instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.”
280. The other doctrine that is invoked in support of the anti-delegation rule is the well- accepted principle of municipal law, which prevents a person upon whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people. The legislature is supposed to be a delegate deriving its powers from the “people” who are the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority.
281. These doctrines, though well recognised in theory, have a restricted and limited application in actual practice. Mr Justice Story said-
“But when we speak of a separation of the three great departments of Government and maintain that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments: and that such exercise of the whole would subvert the principles of free Constitution.”
282. As regards the maxim delegatus non potest delegare, its origin and theoretical basis are undoubtedly different from those of the doctrine of separation of powers. But, for practical purposes, both these doctrines are linked together and are used as arguments against the Congress attempting to invest any other authority with legislative powers. According to Willis, the disability of the Congress to delegate its legislative powers to the executive, purports to be based upon the doctrine of “separation of powers”; while its incapacity to bestow its authority upon an independent body like a board or commission is said to rest on the maxim delegatus non potest delegare.
283. As said above, a considerable amount of flexibility was allowed in the practical application of these theories even from early times. The vast complexities of social and economic conditions of the modern age, and the ever growing amount of complicated legislation that is called for by the progressive social necessities, have made it practically impossible for the legislature to provide rules of law which are complete in all their details. Delegation of some sort, therefore, has become indispensable for making the law more effective and adaptable to the varying needs of society.
284. Thus in America, despite the theory which prohibits delegation of legislative power, one comes across numerous rules and regulations passed by non legislative bodies in exercise of authority bestowed on them by the legislature in some shape or other. The legislature has always been deemed competent to create a municipal authority and empower it to make bye- laws. In fact, such legislation is based upon the immemorial Anglo-Saxon practice of leaving to each local community the management and control of local affairs. The Congress can authorise a public officer to make regulations, or the Judges of the court to frame rules of procedure which are binding in the same way as laws proper. It can authorise some other body to determine the conditions or contingencies under which a statute shall become operative and can empower administrative functionaries to determine facts and apply standards. “The separation of powers between the Congress and the Executive,” thus
observed Cardozo, J. in his dissenting judgment in Panama Refining Company v. Ryan [293 US 388 (1935)], “is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible approximation; there must be elasticity of adjustment in response to the practical necessities of Government which cannot foresee today the developments of tomorrow in their nearly infinite variety”. In fact, the rule of non-delegation has so many exceptions engrafted upon it that a well known writer of constitutional law has tersely expressed that it is difficult to decide whether the dogma or the exceptions state the Rule correctly.
285. It does not admit any serious dispute that the doctrine of separation of powers has, strictly speaking, no place in the system of government that India has at the present day under her own Constitution or which she had during the British rule. Unlike the American and Australian Constitutions, the Indian Constitution does not expressly vest the different sets of powers in the different organs of the State. Under Article 53(1), the executive power is indeed vested in the President, but there is no similar vesting provision regarding the legislative and the judicial powers. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system, the essential feature of which is the responsibility of the executive to the legislature. The President, as the head of the executive, is to act on the advice of the Council of Ministers, and this Council of Ministers, like the British Cabinet, is a “hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part”.
286. There could undoubtedly be no question of the executive being responsible to the legislature in the year 1912, when the Delhi Act 13 of 1912 was passed, but at that time it was the executive which really dominated the legislature, and the idea of a responsible Government was altogether absent. It was the Executive Council of the Governor-General which together with sixty additional members, of whom 33 were nominated, constituted the Governor-General’s Legislative Council and had powers to legislate for the whole of British India. The local legislatures in the provinces were constituted in a similar manner. The first advance in the direction of responsible Government was made by the Government of India Act, 1919, which introduced dyarchy in the provinces. The Government of India Act, 1935, brought in provincial autonomy, and ministerial responsibility was established in the provinces subject to certain reserved powers of the Governor. In the Centre the responsibility was still limited and apart from the discretionary powers of the Governor-General the defence and external affairs were kept outside the purview of ministerial and legislative control. Thus whatever might have been the relation between the legislature and the executive in the different constitutional set ups that existed at different periods of Indian history since the advent of British rule in this country, there has never been a rigid or institutional separation of powers in the form that exists in America.
287. The maxim delegatus non potest delegare is sometimes spoken of as laying down a rule of the law of agency; its ambit is certainly wider than that and it is made use of in various fields of law as a doctrine which prohibits a person upon whom a duty or office has devolved or a trust has been imposed from delegating his duties or powers to other persons. The introduction of this maxim into the constitutional field cannot be said to be altogether unwarranted, though its basis rests upon a doubtful political doctrine. To attract the application of this maxim, it is essential that the authority attempting to delegate its powers
must itself be a delegate of some other authority. The Legislature, as it exists in India at the present day, undoubtedly is the creature of the Indian Constitution, which defines its powers and lays down its duties; and the Constitution itself is a gift of the people of India to themselves. But it is not a sound political theory that the legislature acts merely as a delegate of the people. This theory once popularised by Locke and eulogized by early American writers are not much favoured in modern times. With regard to the Indian Legislature as it existed in British days constituted under the Indian Councils Act, it was definitely held by the Judicial Committee in the well-known case of Queen v. Burah [(1878) 3 AC 889], that it was in no sense a delegate of the British Parliament. In that case the question arose as to the validity of Section 9 of Act 22 of 1869 passed by the Governor-General’s Legislative Council. The Act provided that certain special laws, which had the effect of excluding the jurisdiction of the High Court, should apply to a certain district known as Garo Hills, and Section 9 empowered the Lieutenant-Governor of Bengal to extend the operation of these laws to certain other areas if and when the Lieutenant-Governor, by notification in the Calcutta Gazette, would declare that they should be so applied. The majority of the Judges of the Calcutta High Court upheld the contention of the respondent, Burah, that the authority conferred on the Lieutenant-Governor to extend the Act in this way was in excess of the powers of the Governor-General-in-Council, and in support of this view, one of the learned Judges relied inter alia upon the principles of the law of agency. This view was negatived by the Judicial Committee, and Lord Selborne, in delivering the judgment, observed as follows: “The Indian Legislature has powers expressly limited by the Act of the imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the imperial Parliament, but has, and was intended to have, plenary powers of legislation as large and of the same nature as those of parliament itself.”
289. I am quite willing to concede that the doctrine of separation of powers cannot be of any assistance to us in the solution of the problems that require consideration in the present case. In my opinion, too much importance need not also be attached to the maxim delegatus non potest delegare, although as an epigrammatic saying it embodies a general principle that it is not irrelevant for our present purpose. But even then I am unable to agree with the broad proposition enunciated by the learned Attorney-General that a legislative power per se includes within its ambit a right for the legislative body to delegate the exercise of that power in any manner it likes to another person or authority. I am unable also to accept his contention that in this respect the authority of the Indian Legislature is as plenary as that of the British Parliament, and, provided the subject-matter of legislation is not one outside the field of its legislative competence, the legislature in India is able to do through an agent anything which it could do itself.
290. It is to be noted that so far as the British Parliament is concerned, there is no constitutional limitation upon its authority or power. In the words of Sir Edward Coke, “the power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds…. It hath sovereign and uncontrollable authority in the making, confirming, enlarging, abrogating, repealing, reviving and expounding of laws…. this being the place where that absolute despotic power which must in all Governments reside somewhere is entrusted by the constitution of these
kingdoms”. The British Parliament can not only legislate on any subject it likes and alter or repeal any law it likes, but being both “a legislative and a constituent assembly”, it can change and modify the so-called constitutional laws and they can be changed by the same body and in the same manner as ordinary laws; and no act of the Parliament can be held to be unconstitutional in a British court of law.
291. This sovereign character was not, and could not be, predicated of the Legislative Council of British India as it was constituted under the Indian Councils Act, even though it had very wide powers of legislation and within the scope of its authority could pass laws as important as those passed by the British Parliament. It is not present also in the Indian Parliament of the present day which is a creature of the Indian Constitution and has got to exercise its legislative powers within the limits laid down by the Constitution itself. Acting in its ordinary capacity as a legislative body, the Indian Parliament cannot go beyond the Constitution or touch any of the constitutional or fundamental laws, and its acts can always be questioned in a court of law. Consequences of great constitutional importance flow from this difference and they have a material bearing on the question before us. The contention of the learned Attorney-General in substance is that the power of delegation of legislative authority without any limitation as to its extent is implicit in the exercise of the power itself, and in support of his contention he refers to the unrestricted rights of delegation which are exercised by the British Parliament. But the validity or invalidity of a delegation of legislative power by the British Parliament is not and cannot be a constitutional question at all in the United Kingdom, for the Parliament being the omnipotent sovereign is legally competent to do anything it likes and no objection to the constitutionality of its acts can be raised in a court of law. Therefore, from the mere fact that the British Parliament exercises unfettered rights of delegation in respect of its legislative powers, the conclusion does not follow that such right of delegation is an inseparable adjunct of the legislative power itself. The position simply is this that in England, no matter, to whichever department of the powers exercisable by the British Parliament the right of delegation of legislative authority may be attributed – and there is no dispute that all the sovereign powers are vested in the Parliament – no objection can be taken to the legality of the exercise of such right. But in India the position even at the present day is different. There being a written constitution which defines and limits the rights of the legislature, the question whether the right of delegation, either limited or unlimited, is included within, and forms an integral part of, the right of legislation is a question which must be answered on a proper interpretation of the terms of the Constitution itself. We need not for this purpose pay any attention to the American doctrine of separation of powers; we must look to the express language of our own Constitution and our approach should be to the essential principles underlying the process of law-making which our Constitution envisages. According to the Indian Constitution, the power of law-making can be exercised by the Union Parliament or a State Legislature which is to be constituted in a particular manner and the process of legislation has been described in detail in various articles.
Powers have been given to the President in Article 123 and to the Governor of a State under Article 213 to promulgate Ordinances during recess of the respective legislatures. Specific provisions have also been made for exercise of the legislative powers by the President on proclamation of emergency and in respect of Part-D territories. Law-making undoubtedly is a task of the highest importance and responsibility, and, as our Constitution has entrusted this
task to particular bodies of persons chosen in particular ways, and not only does it set up a machinery for law-making but regulates the methods by which it is to be exercised and makes specific provisions for cases where departure from the normal procedure has been sanctioned, the prima facie presumption must be that the intention of the Constitution is that the duty of law-making is to be performed primarily by the legislative body itself. The power of the Parliament to confer on the President legislative authority to make laws and also to authorise the President to delegate the power so conferred to any other authority has been recognised only as an emergency provision in Article 357 of the Constitution. Save and except this, there is no other provision in the Constitution under which the legislature has been expressly authorised to delegate its legislative powers. “It is a well-known rule of construction that if a statute directs that certain acts shall be done in a specified manner or by certain persons, then performance in any other manner than that specified or by any other persons than those named is impliedly prohibited” It has been observed by Baker in his treatise on “Fundamental Laws” that quite apart from the doctrine of separation of powers, there are other cogent reasons why legislative power cannot be delegated. “Representative Government,” thus observes the learned author, “vests in the persons chosen to exercise the power of voting taxes and enacting laws, the most important and sacred trust known to civil Government. The representatives of the people are required to exercise wise discretion and a sound judgment, having due regard for the purposes and the needs of the executive and judicial department, the ability of the taxpayer to respond and the general public welfare. It follows as a self-evident proposition that a responsible Legislative Assembly must exercise its own judgment”. In the same strain are the observations made by Cooley in his “Constitutional Law” that the reason against delegation of power by the legislature is found in the very existence of its own powers. “This high prerogative has been entrusted to its own wisdom, judgment and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust instead of executing it.”
292. The same considerations are applicable with regard to the legislative bodies which exercised the powers of law-making at the relevant periods when the Delhi Laws Act of 1912 and the Ajmer-Merwar Act of 1947 were enacted. Under the Indian Councils Act, 1861, the power of making laws and regulations was expressly vested in a distinct body consisting of the members of the Governor-General’s Council and certain additional members who were nominated by the Governor-General for a period of two years. The number of such additional members which was originally from 6 to 12 was increased by the subsequent amending Acts and under the Indian Councils Act of 1909; it was fixed at 60, of which 27 were elected and the rest nominated by the Governor-General. It was this legislative body that was empowered by the Indian Councils Act to legislate for the whole of British India and there were certain local legislatures in addition to this in some of the provinces.
293. Section 18 of the Indian Councils Act of 1861 empowered the Governor-General to make rules for the conduct of business at meetings of the Council for the purpose of making laws; Section 15 prescribed the quorum necessary for such meetings and further provided that the seniormost ordinary member could preside in the absence of the Governor-General. This was the normal process of law-making as laid down by the Indian Councils Act. Special provisions were made for exceptional cases when the normal procedure could be departed from. Thus Section 23 of the Act of 1861 empowered the Governor-General to make
ordinances having the force of law in case of urgent necessity; and later on under Section 1 of the Indian Councils Act of 1870 the executive Government was given the power to make regulations for certain parts of India to which the provisions of the section were declared to be applicable by the Secretary of State. Besides these exceptions for which specific provisions were made, there is nothing in the parliamentary Acts passed during this period to suggest that legislative powers could be exercised by any other person or authority except the Legislative Councils mentioned above.
294. The Ajmer-Merwar Act was passed by the Dominion Legislature constituted under the Government of India Act, 1935, as adapted under the Indian Independence Act of 1947. The provisions of the Constitution Act of 1945 regarding the powers and functions of the legislative bodies were similar to those that exist under the present Constitution and no detailed reference to them is necessary.
295. The point for consideration now is that if this is the correct position with regard to exercise of powers by the legislature, then no delegation of legislative function, however small it might be, would be permissible at all. The answer is that delegation of legislative authority could be permissible but only as ancillary to, or in aid of, the exercise of law- making powers by the proper legislature, and not as a means to be used by the latter to relieve itself of its own responsibility or essential duties by devolving the same on some other agent or machinery. A constitutional power may be held to imply a power of delegation of authority which is necessary to affect its purpose; and to this extent delegation of a power may be taken to be implicit in the exercise of that power. This is on the principle “that everything necessary to the exercise of a power is implied in the grant of the power. Everything necessary to the effective exercise of legislation must therefore be taken to be conferred by the Constitution within that power.” But it is not open to the legislature to strip itself of its essential legislative function and vest the same on an extraneous authority. The primary or essential duty of law- making has got to be discharged by the legislature itself; delegation may be resorted to only as a secondary or ancillary measure.
296. Quite apart from the decisions of American courts, to some of which I will refer presently, the soundness of the doctrine rests, as I have said already, upon the essential principles involved in our written Constitution. The work of law-making should be done primarily by the authority to which that duty is entrusted, although such authority can employ an outside agency or machinery for the purpose of enabling it to discharge its duties properly and effectively; but it can on no account throw the responsibility which the Constitution imposes upon it on the shoulders of an agent or delegate and thereby practically abdicate its own powers.
297. The learned Attorney-General in support of the position he took up placed considerable reliance on the observations of the Judicial Committee in the case of Queen v. Burah, which I have referred to already and which has been repeated almost in identical language in more than one subsequent pronouncement of the Judicial Committee. The Privy Council made those observations for the purpose of clearing up a misconception which prevailed for a time in certain quarters that the Indian or the colonial legislatures were mere agents or delegates of the imperial Parliament, and being in a sense holder of mandates from the latter, were bound to execute these mandates personally. This conception, the Privy Council pointed out, was wrong. The Indian Legislature, or for the matter of that the Colonial Parliament could, of
course, do nothing beyond the limits prescribed for them by the British Parliament. But acting within these limits they were in no sense agents of another body and had plenary powers of legislation as large and of the same nature as those of the Parliament itself. It should be noted that the majority of the Judges of the Calcutta High Court in Queen v. Burah proceeded on the view that the impugned provision of Act 22 of 1869 was not a legislation but amounted to delegation of legislative power and Mr Justice Markby in his judgment relied expressly upon the doctrine of agency. This view of Mr Justice Markby was held to be wrong by the Privy Council in the observations mentioned above and as regards the first and the main point the Judicial Committee pointed out that the majority of the Judges of the High Court laboured under a mistaken view of the nature and principles of legislation, for as a matter of fact nothing like delegation of legislation was attempted in the case at all. It seems to me that the observations relied on by the Attorney-General do not show that in the opinion of the Privy Council the Indian Legislative Council had the same unrestricted rights of delegation of legislative powers as are possessed by the British Parliament. If that were so, there was no necessity of proceeding any further and the case could have been disposed of on the simple point that even if there was any delegation of legislative powers made by the Indian Legislative Council it was quite within the ambit of its authority. In my opinion, the object of making the observations was to elucidate the character in which the Indian Legislative Council exercised its legislative powers. It exercised the powers in its own right and not as an agent or delegate of the British Parliament. If the doctrine of agency is to be imported, the act of the agent would be regarded as the act of the principal, but the legislation passed by the Indian Legislature was the act of the legislature itself acting within the ambit of its authority and not of the British Parliament, although it derived its authority from the latter. This view has been clearly expressed by Rand, J. of the Supreme Court of Canada while the learned Judge was speaking about the essential character of the legislation passed by the legislative bodies in Canada1. The observations of the learned Judge are as follows:
“The essential quality of legislation enacted by these bodies is that it is deemed to be the law of legislatures of Canada as a self-governing political organization and not law of imperial Parliament. It was law within the Empire and law within the Commonwealth, but it is not law as if enacted at Westminster, though its source or authority is derived from that Parliament.” It should be noted further that in their judgment in Burah case the Privy Council while dealing with the matter of delegated authority was fully alive to the implications of a written constitution entrusting the exercise of legislative powers to a legislature constituted and defined in a particular manner and imposing a disability on such legislature to go beyond the specific constitutional provisions. Just after stating that the Indian Legislature was in no sense a delegate of the imperial Parliament the Privy Council observed: “The Governor-General-in- Council could not by any form of an enactment create in India and arm with legislative authority a new legislative power not created and authorised by the Councils Act.”
298. Almost in the same strain were the observations of the Judicial Committee in In re The Initiative and Referendum Act, 1919 and while speaking about the powers of the Provincial Legislature under the Canadian Act of 1867 Lord Haldane said:
“Section 92 of the Act of 1867 entrusts the legislative power in a province to its legislature and to that legislature only. No doubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by the provincial legislature in Canada could, while
preserving its own capacity intact, seek the assistance of subordinate agencies as had been done when in Hodge v. Queen the legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence.”
299. It is not correct to say that what these observations contemplate is a total effacement of the legislative body on surrender of all its powers in favour of another authority not recognised by the constitution. Such a thing is almost outside the range of practical consideration. The observations of Lord Haldane quoted above make it quite clear that His Lordship had in mind the distinction between “seeking the assistance of a subordinate agency in the framing of rules and regulations which are to become a part of the law”, and “conferring on another body the essential legislative function which under the constitution should be exercised by the legislature itself”. The word “abdication” is somewhat misleading, but if the word is to be used at all, it is not necessary in my opinion to constitute legal abdication that the legislature should extinguish itself completely and efface itself out of the pages of the constitution bequeathing all its rights to another authority which is to step into its shoes and succeed to its rights. The abdication contemplated here is the surrender of essential legislative authority even in respect of a particular subject-matter of legislation in favour of another person or authority which is not empowered by the constitution to exercise this function.
300. I will now attempt to set out in some detail the limits of permissible delegation, in the matter of making laws, with reference to decided authorities. For this purpose it will be necessary to advert to some of the more important cases on the subject decided by the highest courts of America, Canada and Australia. We have also a number of pronouncements of the Judicial Committee in appeals from India and the colonies. I confess that no uniform view can be gathered from these decisions and none could possibly be expected in view of the fact that the pronouncements emanate from Judges in different countries acting under the influence of their respective traditional theories and the weight of opinion of their own courts on the subject. None of these authorities, however, are binding on this Court and it is not necessary for us to make any attempt at reconciliation. We are free to accept the view which appears to us to be well founded on principle and based on sound juridical reasoning.
301. Broadly speaking, the question of delegated legislation has come up for consideration before courts of law in two distinct classes of cases. One of these classes comprises what is known as cases of “conditional legislation”, where according to the generally accepted view, the element of delegation that is present relates not to any legislative function at all, but to the determination of a contingency or event, upon the happening of which the legislative provisions are made to operate. The other class comprises cases of delegation proper, where admittedly some portion of the legislative power has been conferred by the legislative body upon what is described as a subordinate agent or authority. I will take up for consideration these two types of cases one after the other.
302. In a conditional legislation, the law is full and complete when it leaves the legislative chamber, but the operation of the law is made dependent upon the fulfilment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled. “The aim of all legislation,”
said O’Conner, J. in Baxter v. Ah Way “is to project their minds as far as possible into the future and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore legislation from the very earliest times, and particularly in more modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied or to what its operation shall be extended, or the particular class of persons or goods or things to which it shall be applied”. In spite of the doctrine of separation of powers, this form of legislation is well recognised in the legislative practice of America, and is not considered as an encroachment upon the anti-delegation rule at all. As stated in a leading Pennsylvania case, “the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power and must, therefore, be a subject of inquiry and determination outside the halls of legislation”.
303. One of the earliest pronouncements of the Judicial Committee on the subject of conditional legislation is to be found in Queen v. Burah. In that case, as said already, the Lieutenant-Governor of Bengal was given the authority to extend all or any of the provisions contained in a statute to certain districts at such time he considered proper by notification in the Official Gazette. There was no legislative act to be performed by the Lieutenant-Governor himself. The Judicial Committee observed in their judgment:
“The proper legislature has exercised its judgment as to place, persons, laws, powers, and the result of that judgment has been to legislate conditionally as to those things. The conditions being fulfilled, the legislation is now absolute.”
304. Just four years after this decision was given, the case of Russell v. Queen came up before the Judicial Committee. The subject-matter of dispute in that case was the Canadian Temperance Act of 1878, the prohibitory and penal provisions of which were to be operative in any county or city, only if upon a vote of the majority of the electors of that county or city favouring such a course the Governor-General by order-in-council declared the relative part of the Act to be in force. One of the contentions raised before the Judicial Committee was that the provision was void as amounting to a delegation of legislative authority to a majority of voters in the city or county. This contention was negatived by the Privy Council, and the decision in Queen v. Burah was expressly relied upon. “The short answer to this question,” thus observed the Judicial Committee, “is that the Act does not delegate any legislative powers whatsoever. It contains within itself the whole legislation on the matter with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer authority or power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient and is certainly not unusual and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency”.
305. The same principle was applied by the Judicial Committee in King v. Benoari Lal Sarma. In that case, the validity of an emergency ordinance by the Governor-General of India was challenged inter alia on the ground that it provided for setting up of special criminal
courts for particular kinds of offences, but the actual setting up of the courts was left to the Provincial Governments which were authorised to set them up at such time and place as they considered proper. The Judicial Committee held that “this is not delegated legislation at all. It is merely an example of the not uncommon legislative power by which the local application of the provisions of a statute is determined by the judgment of a local administrative body as to its necessity”.
306. Thus, conditional legislation has all along been treated in judicial pronouncements not to be a species of delegated legislation at all. It comes under a separate category, and, if in a particular case all the elements of a conditional legislation exist, the question does not arise as to whether in leaving the task of determining the condition to an outside authority, the legislature acted beyond the scope of its powers.
307. I now come to the other and more important group of cases where admittedly a portion of the law-making power of the legislature is conferred or bestowed upon a subordinate authority and the rules and regulations which are to be framed by the latter constitute an integral portion of the statute itself. As said already, it is within powers of Parliament or any competent legislative body when legislating within its legislative field, to confer subordinate administrative and legislative powers upon some other authority. The question is what the limits within which such conferment are or bestowing of powers could be properly made? It is conceded by the learned Attorney-General that the legislature cannot totally abdicate its functions and invest another authority with all the powers of legislation which it possesses. Subordinate legislation, it is not disputed, must operate under the control of the legislature from which it derives its authority, and on the continuing operation of which, its capacity to function rests. As was said by Dixon, J. “a subordinate legislation cannot have the independent and unqualified authority,which is an attribute of true legislative power”. It is pointed out by this learned Judge that several legal consequences flow from this doctrine of subordinate legislation. An offence against subordinate legislation is regarded as an offence against the statute and on the repeal of the statute the regulations automatically collapse. So far, the propositions cannot, and need not, be disputed. But, according to the learned Attorney-General all that is necessary in subordinate legislation is that the legislature should not totally abdicate its powers and that it should retain its control over the subordinate agency which it can destroy later at any time it likes. If this is proved to exist in a particular case, then the character or extent of the powers delegated to or conferred upon such subordinate agent is quite immaterial and into that question the courts have no jurisdiction to enter. This argument seems plausible at first sight, but on closer examination, I find myself unable to accept it as sound. In my opinion, it is not enough that the legislature retains control over the subordinate agent and could recall him at any time it likes, to justify its arming the delegate with all the legislative powers in regard to a particular subject. Subordinate legislation not only connotes the subordinate or dependent character of the agency which is entrusted with the power to legislate, but also implies the subordinate or ancillary character of the legislation itself, the making of which such agent is entrusted with. If the legislature hands over its essential legislative powers to an outside authority, that would, in my opinion, amount to a virtual abdication of its powers and such an act would be in excess of the limits of permissible delegation.
308. The essential legislative function consists in the determination or choosing of the legislative policy and of formally 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 detail 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. “So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply”
342. It will be noticed that the powers conferred by this section upon the Central Government are far in excess of those conferred by the other two legislative provisions, at least in accordance with the interpretation which I have attempted to put upon them. As has been stated already, it is quite an intelligible policy that so long as a proper legislative machinery is not set up in a particular area, the Parliament might empower an executive authority to introduce laws validly passed by a competent legislature and actually in force in other parts of the country to such area, with each modifications and restrictions as the authority thinks proper, the modifications being limited to local adjustments or changes of a minor character. But this presupposes that there is no existing law on that particular subject actually in force in that territory. If any such law exists and power is given to repeal or abrogate such laws either in whole or in part and substitute in place of the same other laws which are in force in other areas, it would certainly amount to an unwarrantable delegation of legislative powers. To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modifications as it thinks proper, that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down. Thus the power of extension, which is contemplated by Section 2 of Part-C States (Laws) Act, includes the power of introducing laws which may be in actual conflict with the laws validly established and already in operation in that territory. This shows how the practice, which was adopted during the early British period as an expedient and possibly harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into a full-fledged administrative and political unit, is being resorted to in later times for no other purpose than that of vesting almost unrestricted legislative powers with regard to certain areas in the executive Government. The executive Government is given the authority to alter, repeal or amend any laws in existence at that area under the guise of bringing in laws there which are valid in other parts of India. This, in my opinion, is an unwarrantable delegation of legislative duties and cannot be permitted. The last portion of Section 2 of Part-C States (Laws) Act is, therefore, ultra vires the powers of the Parliament as being a delegation of essential legislative powers in favour of a body not competent to exercise it and to that extent the legislation must be held to be void. This portion is however severable; and so the entire section need not be declared invalid.
343. The result is that, in my opinion, the answer to the three questions referred to us would be as follows:
(1) Section 7 of the Delhi Laws Act, 1912, is in its entirety intra vires the legislature which passed it and no portion of it is invalid.
(2) The Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions are not ultra vires the legislature which passed the Act.
(3) Section 2 of Part-C States (Laws) Act 1950, is ultra vires to the extent that it empowers the Central Government to extend to Part-C States laws which are in force in Part A States, even though such laws might conflict with or affect laws already in existence in the area to which they are extended. The power given by the last portion of the section to make provisions in any extended enactment for the repeal or amendment of any corresponding provincial law, which is for the time being applicable to that Part-C State, is, therefore, illegal and ultra vires.
