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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.
- 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
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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. - 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. - 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. - 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
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instrument, there is an implied exclusion of each department from exercising the functions
conferred upon the others.” - The other doctrine that is invoked in support of the anti-delegation rule is the wellaccepted 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. - 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.” - 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. - 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. - 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 byelaws. 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
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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. - 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”. - 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. - 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
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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.” - 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. - 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
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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. - 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
32
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.” - 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. - 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
33
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. - 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. - 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 lawmaking 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 lawmaking has got to be discharged by the legislature itself; delegation may be resorted to only
as a secondary or ancillary measure. - 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. - 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
34
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-inCouncil 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.” - 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
35
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.” - 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. - 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. - 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. - 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,”
36
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”. - 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.” - 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”. - 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
37
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”. - 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. - 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.
38 - 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” - 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. - The result is that, in my opinion, the answer to the three questions referred to us would
be as follows:
39
(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.
*
