By Aditya Thejus Krishnan, School of Legal Studies, CUSAT
Editor’s Note: The Doctrine of Separation of Powers is well recognized by all the civilized nations of the world. In India too such distinction of powers of a sovereign are classified under the Legislative, Executive and Judiciary. This distinction is blurred, as some would contend, when powers are delegated or sub-delegated. After independence, there was a lot of confusion regarding the concept of delegation i.e. whether it is possible and if so, to what extent. To clarify this, the President of India referred this question to the apex court under Article 143 of the Constitution. The court laid down some principles regarding these questions. The re Delhi Laws Act is a landmark judgment of the 7 Judge Bench of the Supreme Court wherein each judge had a difference of opinion. Therefore, an analysis of the same would lead to a better understanding of the applicability of the concept of delegated legislation in India.
SEPARATION OF POWERS, AN INTRODUCTION TO DELEGATED LEGISLATION
During the middle of the 18st century, Montesquieu said,
“There would be an end of everything where the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of extracting law, that of executing the public resolutions and of trying the causes of individuals.”[i]
The theory of separation of powers signifies three formulations of structural classifications of governmental powers:
- The same person should not form part of more than one of the three organs of the Government. For example: ministers should not sit in Parliament
- One organ of the Government should not interfere with any other organ of the Government.
- One organ of the Government should not exercise the function assigned to any other organ.
The aim of this doctrine is to guard against tyrannical and arbitrary powers of the State. The rationale underlying the doctrine has been that, if all power is concentrated in one and the same organ, there would arise the danger that it may enact tyrannical laws, execute them in a despotic manner, and interpret them in an arbitrary fashion without any external control. Though in the face of the complex socio-economic problems demanding solution in a modern welfare state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it has been stated about the doctrine: “Its objective is the preservation of political safeguards against capricious exercise of power; and incidentally, it lays down lines of an effective division of functions. Its logic is the logic of popularity rather than strict classification….the great end of the theory is, by dispensing in some measure the centers of authority, to prevent absolutism.”[ii]
In India, the doctrine of separation of powers has not been accorded a constitutional status. Apart from the directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers.[iii]The Supreme Court in Ram Jawaya Kapoor v. State of Punjab[iv], held,
In India, not only is there a functional overlapping but there is personal overlapping also. The Supreme Court has the power to declare void, the laws passed by the legislature and the actions taken by the executive if they violate any provision of the Constitution of the law passed by the legislature in case of executive actions. Even the power to amend the Constitution by the Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if it changed the basic structure of the Constitution.[v] The president, in whom the executive authority is vested, exercises law making power in the form of ordinance making power and also judicial power, by virtue of Article 103(1) and 217(3). The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges.“Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently, it can be very well said that our Constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another.”
From the above discussion it becomes clear that the doctrine in its classical sense, which is structural rather than functional, cannot be literally applied to any modern Government because neither can the powers of the Governments be kept in water tight compartments nor can any Government run on strict separation of powers. In the same manner, Prof. Wade writes that the objection of Montesquieu was against accumulation and monopoly rather than interaction.[vi] Montesquieu himself never used the word “separation”. Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs of the State is the sole of the doctrine of separation of powers. Hence the doctrine can be better appreciated as a doctrine of “checks and balances” and in this sense administrative process is not an antithesis of the doctrine of separation of powers.
Thus it reached the state where the legislature could not make the law in full to cope up with the situation due to the interference of the state in the multiple facets of life. Admittedly, the legislature in India lacks experience and expertise to make laws taken into account the present and future requirement in a developing country. A law is made to suppress mischief and to advance a remedy. The remedy should be beneficial for the society in future too. That technical know-how and expertise can be attributed only to the executive wing of the Government. Therefore, basically it was decided that by retaining the policy of law making with the legislature, the details, the procedures and the method of implementation can be left to the wisdom of the executive, authorizing them to supply flesh and blood to the skeletal legislature enacted by the legislature. This transfer of authority to make laws to the executive is generally known as delegation of legislative power and the law thus made by the executive as delegated legislation.
But what are the limits within which the executive can exercise the authority conferred upon them? Broadly speaking, it cannot be ultra-vires the Constitution and the parent Act made by the legislature. The scope of delegation and the checks and balances to be exerted over the executive was considered in detail by the honorable Supreme Court of India when such a matter was referred to the same under Article 143 of the Constitution by the President.
In the present era, it is abundantly clear that the shift to a welfare state has lead to an increase in the administrative functions of the country. After independence, there has been a lot of confusion regarding the concept of delegation i.e. whether it is possible and if so, to what extent. To clarify this, the President of India referred this question to the apex court under Article 143 of the Constitution. The court laid down some principles regarding these questions. The in re Delhi Laws Act[vii] is a landmark judgment of the 7 Judge Bench of the Supreme Court wherein each judge had a difference of opinion.
HISTORY OF THE CASE
To understand the present case better, we have to divide Indian era into basically three: the pre independence, post independence and the post constitution.
The authority regarding delegated legislation in the pre-independence period was primarily held by Queen v. Burrah[viii]. In this case, the Act in question (Act XXII of 1869) deals with the Governor General’s power to bring the Act in effect, determine what laws were to be applicable and the power to extend application of provisions of the Act. Here an Act was passed by the Indian legislature t remove Garo Hills from the civil and criminal jurisdiction of Bengal and vested the powers of civil and criminal administration in an officer appointed by the Lt. Governor of Bengal. The Lt. Governor was further authorized by S.8 of the Act to extend any provision of this Act with incidental changes to Khasi and Jaintia Hills. One Burah was tried for murder by the Commissioner of Khasi and Jaintia Hills and was sentenced to death.
The question was whether these functions would be categorized as delegated legislation. The court held that the above mentioned powers were conferred only on the fulfillment of certain conditions and hence this was conditional legislation, a concept all together different from delegated legislation. The court also stated that “It is a general principle of law in India that any substantial delegation of legislative authority by the legislature of the country is void…..”[ix] . The case thus lays down that substantive delegation i.e. delegation if the important functions are void in India and that delegation, if at all possible would have to be conditional.
The three questions primarily dealt with whether a law in existence before the independence, after independence or after the Constitution can be extended to another province or area by a notification by the Government without legislative deliberation. Specifically, they are:The limits of delegation were however not laid down in the above case. Under such circumstances confusion arose in respect of the policy to be followed. India looked into the American system, where unlimited power cannot be delegated as a consequence of the doctrine of separation of powers, or the English concept where as much power as necessary can be delegated due to the unquestioned supremacy of the Parliament. It was left open to the courts to follow either one of the models. Inadequacies of these models lead the Indians to the Constitution in search of an answer. But even the Constitution was silent about this concept. It was in this under these circumstances that the President of India under Article 143 of the Constitution asked the courts, opinion on the three questions.
- 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, mentioned in the question runs as follows:
“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”
- 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, runs as follows:–
”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.”
- 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?
“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.”
The learned judges while delivering their judgment, highlighted instances of delegation in America, England, Australia, Canada and some other countries, whose persuasive influence has to be taken into consideration. Some of these instances will be dealt with presently.Being a reference case, it is primarily concerned with the different opinions rendered by the judges. The primary reason for this reference can be traced to Jatinder Nath v. Province of Bihar[x] (the case which holds importance with regard to the post-independence period), where it was held that in India, there could be no delegated legislation beyond conditional legislation. The court in this case 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 it amounting to a delegation of its legislative power to an extraneous authority, doubts have arisen regarding the validity of the three legislative provisions.
The rule against delegated legislation in America has developed as a corollary to the doctrine of separation of power. This is however not an inevitable corollary. It has on several occasions been relaxed.[xi] They further added that the same was applicable in Australia. Though its Constitution is based on the separation of power doctrine, it does not stand in the way of delegation. The British position was highlighted through New South Wales v. Commonwealth[xii] , “It is well known in all British communities; yet, except in the United States, nowhere it has been held that by itself forbids delegation of legislative power…”[xiii] The situation in Canada has been highlighted by the justices by means of Hodge v. The Queen[xiv]. Here it was argued that the power conferred by the Imperial Parliament on the local legislature should be exercised in full by that body and by that body alone. The maxim delegates non potest delegare was relied upon to support the objection.
In the Indian context, to explain the situation in the pre-independence period, they have relied on Dicey’s comments. According to Dicey, “the Indian Legislatures are in short, within their own sphere, copies of Imperial Parliament, they are within their own sphere sovereign bodies, but their freedom of action is controlled by their subordination to the Parliament of the United Kingdom.”
The trend has not shown much variation in the post-independence era, except for the fact that once India became a free nation, it was no longer under the control of the parliament of U.K. They further went on to say that “in the first place, it seems quite clear that the Privy Council never liked to commit themselves to the statement that delegated legislation was permissible….they were at pains to show that the provisions impugned before them were instances of delegation of legislative authority, but they were instances of conditional legislation[xv]” which according to them the Legislatures were competent to enact.
Chief Justice Kania, formed part of the minority along with Mahajan, J. The Chief Justice declared that, whether sovereign or subordinate, the legislative authority can delegate if it stands the three basic tests:
(1)It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation.
(2) Such power of delegation is not negatived by the instrument by which the legislative body is created or established; and
(3) It does not create another legislative body having the same powers and to discharge the same functions which it has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.
With regard to the three questions he stated that:
Firstly, The Province of Delhi was carved out of the Province of Punjab and was put under a Chief Commissioner and by section 2 of the Delhi Laws Act the laws in force in the Punjab continued to be operative in the newly created Province of Delhi. The Province of Delhi had not its legislative body and so far as this Chief Commissioner’s Province is concerned it is not disputed that the power to legislate was with the Governor- General in Council in his legislative capacity. Section 7 of the Delhi Laws Act enables the Government (executive) to extend by notification 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, i.e., a law which was in force not necessarily in the Province of Punjab only, from which the Province of Delhi was carved out, but any Central or provincial law in force in any Province
In his opinion, therefore, to the extent section 7 of the Delhi Laws Act permits the Central executive government to apply any law passed by a Provincial legislature to the Province of Delhi, the same is ultra vires the Central Legislature. To that extent the Central Legislature has abdicated its functions and therefore the Act to the extent is invalid.He further relies on the landmark judgment of Queen v. Burrah[xvi]. He was of the opinion that as far as extension of the laws passed by the Central Legislature goes, the Act maybe said to be valid, relying on the above mentioned precedent. . It has however, not considered whether the Province of Delhi requires the rule of conduct laid down in those Acts, as necessary or beneficial for the welfare of the people of the Province or for its government. They are passed by other Provincial legislatures according to their needs and circumstances It may be noticed that the power to extend, mutatis mutandis, the laws as contained in sections 8 and 9 of Act XXII of 1869 brings in the idea of adaptation by modification, but so far only as it is necessary for the purpose.
Question 2 relates to Ajmer-Merwara (Extension of Laws) Act. Till the Government of India Act, 1915, there was unitary government in India. By the Act of 1915, Provincial legislatures were given powers of legislation but there was no distribution of legislative powers between the Centre and the Provinces. That was brought about only by the Government of India Act, 1935. Section 94 of that Act enumerates the Chief Commissioner’s Provinces. They include the Provinces of Delhi and Ajmer-Merwara. Under sections 99 and 100 there was a distribution of legislative powers between Provinces and Centre, but the word “Province” did not include a Chief Commissioner’s Province and therefore the Central Legislature was the only law-making authority for the Chief Commissioner’s Provinces. The Ajmer-Merwara Act was passed under the Government of India Act as adapted by the Indian Independence Act. Although by that Act the control of British Parliament over the Government of India and the Central Legislature was removed, the powers of the Central Legislature were still as those found in the Government of India Act, 1935. The Independence Act therefore made no difference on the question whether the power of delegation was contained in the legislative power. The result is that to the extent to which section 7 of the Delhi Laws Act is held ultra vires, section 2 of the Ajmer-Merwara Act, 1947, should also be held ultra vires.
Finally, with regard to the third question, he states, Article 246 deals with the distribution of legislative powers between the Centre and the States but Part C States are outside its operation. Therefore on any subject affecting Part C States, Parliament is the sole and exclusive legislature until it passes an Act creating a legislature or a Council in terms of article 240. Proceeding on the footing that a power of legislation does not carry with it the power of delegation, the question is whether section 2 of the Part C States (Laws) Act is valid or not. By that section the Parliament has given power to the Central Government by notification to extend to any part of such State (Part C State), with such restrictions and modifications as it thinks fit, any enactment which is in force in Part A State at the date of the notification. The chief observed that the section although framed on the lines of the Delhi Laws Act and the Ajmer-Merwara Act is restricted in its scope as the executive government is empowered to extend only an Act which is in force in any of the Part A States. For the same reasons he considers certain parts of the two sections covered by Questions 1 and 2 ultra vires, that part of section 2 of the Part C States (Laws) Act, 1950, which empowers the Central Government to extend laws passed by any Legislature of Part A State, will also be ultra vires. To the extent the Central Legislature or Parliament has passed Acts which are applicable to Part A States, there can be no objection to the Central Government extending, if necessary, the operation of those Acts to the Province of Delhi, because the Parliament is the competent legislature for that Province. To the extent however the section permits the Central Government to extend laws made by any legislature of Part A State to the Province of Delhi, the section is ultra vires.
Justice Mahajan concurred with the views put forward by the Chief and along with the Chief delivered the minority view in this particular case.
The first question relates to section 7 of the Delhi Laws Act, 1912, and concerns its validity in whole or in part. The section gives a carte blanche to the Governor General to extend to the newly formed province any enactment in force in any part of British India at the date of the notification and not necessarily any enactment in force in British India at the date of the passing of the Delhi Laws Act. No schedule was annexed to the Act of the enactments that were in force in any part in British India at the date of the passing of the Act. As regards the enactments that may be in force in any part of British India at the date of any notification, there was no knowing what those laws would be. Laws that were to be made after 1912, their principle and policy could not be known to the legislature that enacted section 7 of the Delhi Laws Act. He was of the view that the legislature could neither have exercised its judgment, nor its discretion in respect of those laws. It also conferred on the Governor-General power of modifying existing and future enactments passed by different legislatures in the country. The power of modification implies within it the power of amending those statutes. In the Justice’s opinion “the section conferred a kind of a vague, wide, vagrant and uncanalised authority on the Governor- General”[xvii]. From his analysis, it would thus seem that within the wide charter of delegated power given to the executive by section 7 of the Delhi Laws Act, it could exercise essential legislative functions and in effect it became the legislature for Delhi. This section therefore, in his opinion, ultra vires the Indian Councils Act, 1861, in the following particulars:
(i)In as much as it permits the executive to apply to Delhi laws enacted by legislatures not competent to make laws for Delhi and which these legislatures may make within their own legislative field, and
(ii) In as much as it clothes the executive with co-extensive legislative authority in the matter of modification of laws made by legislative bodies in India.
He was however keen to note that had the Legislature of the adopting country passed this particular law, then it would be valid.
In answering the third question, he has adopted a similar reasoning. He held that in this case express power to repeal or amend laws already applicable in Part C States has been conferred on the Central Government. Power to repeal or amend laws is a power which can only be exercised by an authority that has the power to enact laws. It is a power co-ordinate and co-extensive with the power of the legislature itself. In bestowing on the Central Government and clothing it with the same capacity as is possessed by the legislature itself the Parliament has acted unconstitutionally.The second question concerns section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, which provides for extension of enactments to Ajmer-Merwara. The section does not declare any law but gives the Central Government power to declare what the law shall be. The choice to select any enactment in force in any province at the date of such notification clearly shows that the legislature declared no principles or policies as regards the law to be made on any subject. It may be pointed out that under the Act of 1935[xviii] different provinces had the exclusive power of laying down their policies in respect to subjects within their own legislative field. What policy was to be adopted for Delhi, whether that adopted in the province of Punjab or of Bombay, was left to the Central Government. The exercise of this power amounts to making a new law by a body which was not in the contemplation of the Constitution and was not authorized to enact any laws. . He thus answered this question in the negative, because the policy of those laws could never be determined by the law making body entrusted with making laws in the present context for Delhi.
With these opinions, he held all three Acts ultra vires.
The minority view in the present case was expressed by the above two judges. The minority based its view of the theory of legislative omnipotence of the British Parliament, and its reflection in the Australian, the Canadian and the Indian Constitutional systems, which includes power to delegate legislative function, subject to the condition of non-abdication. They were of the view that the Constitution has never per se warranted delegation powers at any stage and agreed on the view that legislature can however, conditionally legislate. In doing so it may, in addition, lay down conditions, or state facts which on being fulfilled or ascertained according to the decision of another body or the execution authority, the legislation may become applicable to a particular area. This was described as conditional legislation.
Fazl Ali, J.
Justice Fazl Ali has successfully delivered the most convincing argument in favour of delegation. Along with the other judges, he ws of the opinion that delegation is in fact important, and his justifications were based on the following lines.
It is a cardinal principle of our system of government that local affairs shall be managed by local authorities and general affairs by the central authority. “Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity.”[xx] He also noted that the Act in question does not enact a “new law” but merely “transplants” to the territory concerned, laws operative in other parts. He further suggested that some safeguards should be implemented, such as a one year time period during which the effectiveness of the delegated function can be judged. He was however of the opinion that mere absence of the safeguard will not invalidate the said provision and it is thus intra vires.The power delegated in the first instance, i.e. in the case of the Delhi Laws Act, 1912 was ministerial in nature such delegation was neither unwarranted on principle nor without precedent. He relies on the instance of Queen v. Burrah[xix] . He adapts the language used there and a similar reasoning is employed. In the present Act, as originally enacted, the agency which was to adapt the laws was the Governor General. In 1912, the Governor-General exercised jurisdiction over the whole of the territories the laws of which were to be adapted for Delhi. He further stated that, Burrah‘s case has been accepted by this Court as having been correctly decided, and we may well say that the impugned Acts are mere larger editions of Act XXII of 1869 which was in question in Burrah‘s case.
Coming to the second Act, namely, the Ajmer-Merwara (Extension of Laws) Act, 1947, we find that when it was enacted on the 31st December, 1947, the Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, issued under the Indian Independence Act, 1947, was in force. Under that Act, there were three Legislative Lists, called the Federal, Provincial and Concurrent Legislative Lists. Lists I and II contained a list of subjects on which the Central Legislature and the Provincial Legislature could respectively legislate, and List III contained subjects on which both the Central and the Provincial Legislatures could legislate. Section 100(4) of the Act provided that “the Dominion Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.” Section 46 (3) stated that the word “Province”, unless the context otherwise required, meant a Governor’s Province. Therefore, section 100 (4) read with the definition of “Province”, empowered the Dominion Legislature to make laws with respect to subjects mentioned in all the three Lists for Ajmer-Merwara, which was not a Governor’s Province. The Central Legislature was thus competent to legislate for Ajmer-Merwara in regard to any subject, and it had also plenary powers in the entire legislative field allotted to it. Further, at the time the Act in question was passed, the Dominion Legislature was simultaneously functioning as the Constituent Assembly and had the power to frame the Constitution.
Finally, as far as the third Act is concerned, since it is an Act post-Constitution, he has relied on Article 245 of the Constitution which lays down that “subject to the provisions of this Constitution, Parliament may make laws from the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.” Reliance was also placed on Under article 246 (4), which states: “Parliament has power to make laws with respect to any matter for any part of the territory of India not included in [Part A or Part B][xxi] of the First Schedule notwithstanding that such matter is a matter enumerated in the State List.”
At the time, it was recognized that the Parliament derives power from the Constitution and has the power to legislate with respect the Part C States and even though the country has adopted the doctrine of separation of power, this will still not be a bar to the process of delegation. He thus concluded by stating that “There can be no doubt that the powers which have been granted to the Government are very extensive and the three Acts go farther than any Act in England or America, but, in my judgment, notwithstanding the somewhat unusual features to which reference has been made, the provisions in question cannot be held to be invalid.”
His conclusions can be summed up as:
- Must normally discharge its primary legislative function itself and not through others.
- Can delegate and this power is ancillary to and necessary for the full and effective exercise of its power of legislation
- Cannot abdicate its legislative functions, and does not become a parallel legislature
The learned justice commented that 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.
As regards constitutionality of the delegation legislative powers, he commented that the Indian Legislature cannot be in the same position as the omnipotent British Parliament and how far delegation is permissible has to be ascertained in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case.
With these observation she said, Section 7 of the Delhi Laws Act, 1912, and S. 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, are wholly intra vires and The first portion of S. 2 of the Part C States (Laws) Act, which empowers the Central Government to extend to any Part C State or to any part of such State with such modifications and restrictions as it thinks fit any enactment which is in force in a Part A State, is intra vires. The latter portion of the said section, which empowers the Central Government to make provision in any enactment extended to a Part C State, for repeal or amendment of any law (other than a Central Act) which is for the time being applicable to that Part C State, is ultra vires.
The learned justice attempts to answer the first two questions together:
Section 7 of the Delhi Laws Act, 1912, fell within the general scope of the affirmative words of section 22 of the Indian Councils Act, 1861, which conferred the law-making power on the Governor General in Council and that the provision did not violate any of the clauses by which, negatively, that power was restricted. The same line of approach lead the learned Justice to the conclusion that section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, was also constitutional and valid. This Act was passed by the Dominion Legislature of India, and the governing constitutional provision was section 99 (1) of the Government of India Act, 1935.
The Indian Independence Act, 1947, authorised the removal of certain restrictions on the law- making powers of the Central Legislature and section 108 of the Constitution Act was omitted; but the material words in section 99 (1) which granted the legislative power remained the same, namely, “may make laws for the whole or any part of the Dominion.” No doubt, as between the Dominion and the Provinces there was a distribution of legislative power according to the Lists in Schedule VII, but such distribution did not affect the power of the Dominion Legislature to make laws for what are known as Chief Commissioners’ Provinces, of which Ajmer-Merwara is one. This was made clear by section 100 (4) read with section 46. Section 2 of the impugned Act was, therefore a “law” which the Dominion Legislature was competent to make and the restrictive words “subject to the provisions of this Act” had no application to the case, as no provision was brought to their notice which affected the validity of the law. There was also some confusion as to the scope and meaning of the words “restrictions” and “modifications”. He dismissed these contradictions by stating that, however wide a meaning may be attributed to the expression; it would not affect the constitutionality of the delegating statute.
Thirdly, section 2 of the Part C States (Laws) Act, 1950, is framed on the same lines as the other two impugned provisions, save for the addition of a clause empowering repeal or amendment of any corresponding law (other than a Central Act) which is for the time being in force in the State. This additional clause, however, need not detain us, for, if there is no constitutional inhibition against delegation of legislative power under the present Constitution, delegation can as well extend to the power of repeal as to the power of modification and the Court cannot hold such delegation to be ultra vires. The Constitutional validity of the additional clause thus stands or falls with that of the first part of the section and the only question is: What is the position in regard to delegated legislation under the present Constitution?
To answer this, the learned justice relies on the positions in America and U.K and states “there is no difference between the English and the American decisions on this point. In both countries it is recognized that the correct way of resolving such problems is to look to the terms of the constitutional instrument, and to find out whether the impugned enactment falls within the ambit of the lawmaking power conferred on the legislature which passed the enactment and, if so, whether it transgresses any restrictions and limitations imposed on such power. If the enactment in question satisfies this double test, then it must be held to be constitutional.”[xxii]
He relies thus on the Constitution and just as the other justices have done, brings to light, at this the context, Articles 245 and 246(4) of the Constitution. He states that the Act passed by Parliament was in accordance with the prescribed legislative procedure, and hence there is no reason why it should not be regarded as a law. Further there is nothing in these provisions which could possibly attract the wrath of Part III of the Constitution. It should thus be considered valid.
He also dismissed the argument by the council with respect to the Latin maxim expressio unis est exclusio alterious. He was of the opinion that an express provision was not necessary for the process of delegation. Further, the maxim is not one of universal application, and it is inconceivable that the framers of the Constitution could have intended to deny to the Indian Legislatures a power which, as we have seen, has been recognized on all hands as a desirable.
With these observations, he held all three Acts in their entirety as valid an intra vires.
The learned justice who was in favour of delegated legislation, also concurred with the opinion above.
He has briefly though explicitly stated that he is in full concurrence with the majority. The Indian Parliament can legislate along the lines of Queen v. Burrah[xxiii], that is to say, it can leave to another person or body the introduction or application of laws which are, or may be, in existence at that time in any part of India which is subject to the legislative control of Parliament, whether those laws are enacted by Parliament or by a State Legislature set up by the Constitution. But delegation of this kind cannot proceed beyond that; it cannot extend to the repealing or altering in essential particulars laws which are already in force in the area in question. He was also of the opinion that the term “modification” does not necessarily mean a change in policy, it merely means an alteration within the permissible limits set by the policy. This keeps the policy intact and at the same time introduces sufficient flexibility to suit the different needs of the society.
He thus held Section 7 of the Delhi Laws Act, 1912, and S. 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, are wholly intra vires. Further, the first portion of S. 2 of the Part C States (Laws) Act, which empowers the Central Government to extend to any Part C State or to any part of such State with such modifications and restrictions as it thinks fit any enactment which is in force in a Part A State, is intra vires. The latter portion of the said section, which empowers the Central Government to make provision in any enactment extended to a Part C State, for repeal or amendment of any law (other than a Central Act) which is for the time being applicable to that Part C State, is ultra vires.
The opinions of the learned justice can be summarized as follows:
- The principle of non-delegation of legislative powers founded either on the doctrine of separation of powers or the theory of agency has no application to the British Parliament or the legislature constituted by an Act of the British Parliament;
- In the ever present complexity of conditions with which governments have to deal, the power of delegation is necessary for, and ancillary to, the exercise of legislative power and is a component part of it;
- The operation of the act performed under delegated power is directly and immediately under and by virtue of the law by which the power was delegated and its efficacy is referable to that antecedent law;
- If what the legislature does is legislation within the general scope of the affirmative words which give the power and if it violates no express Condition or restriction by which that power is limited, then it is not for the court to inquire further or enlarge constructively those conditions or restrictions;
- While the legislature is acting within its prescribed sphere there is, except as herein after stated, no degree of, or limit to, its power of delegation of its legislative power, it being for the legislature to determine how far it should seek the aid of subordinate agencies and how long it shall continue them, and it is not for the court to prescribe any limit to the legislature’s power of delegation;
- The power of delegation is however subject to the qualification that the legislature may not abdicate or efface itself, that is, it may not, without preserving its own capacity intact, create and endow with its own capacity a new legislative power not created or authorised by the Act to which it owes its own existence.
- The impugned laws may also be supported as instances of conditional legislation within the meaning of the decision in Queen Burrah[xxiv].
With these opinions, he held all sections in question in the present case valid in their entirety.
The majority in this case has held all the sections to be perfectly valid. The majority based its opinion on the maxim expressio unis est exclusion alterious[xxv] and ruled that an express provision permitting delegation, contained in article 357 would mean uncontrolled legislation was not permitted under the Constitution. Essential functions could not be delegated under any condition.
SUMMARY OF THE DECISIONS
The opinions delivered by the judges in the present case went on to shape the way the concept of delegation was viewed in India. The Supreme Court took the following view and the 7 opinions were based on the same:
- “Separation of powers” is not a part of Indian Constitution.
- Indian parliament was never considered as an agent of anybody. Therefore doctrine of delegates non potest delegare is not applicable.
- Parliament cannot completely abdicate itself by creating a parallel authority.
- Only ancillary functions can be delegated.
- There is a limitation on delegation of power. Legislature cannot delegate its essential functions. Essential functions involve laying down the policy of the law and enacting that policy into binding rules of conduct.
From a study of the above judicial opinions it is humbly submitted that there is not much material difference between the majority and minority opinion in the present case.
The majority is of the opinion that only non-essential functions, i.e. the power of policy making accompanied with annexation of sanction can be delegated even if there is an explicit mention allowing the delegation, while the minority stands firm on its decision that most functions can be delegated, subject to the condition of non-abdication. It has to be noticed here that, the power of abdication[xxvi] is in fact an essential legislative function. The majority has also expressed its view that the Legislature cannot create a parallel authority with the same powers and functions that it now enjoys.
The case has been quoted as the “Bible of delegated legislation”[xxvii]. What it means that, it is considered as a comprehensive document on delegated legislation which has clearly laid down the importance and the necessity of delegation and at the same time indicates the safeguards necessary to ensure there is no excessive delegation.
It is also to be noted that the subsequent to this case, there was still some confusion in the air regarding the limits of delegation. The first of such cases which cleared the air was the Gwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax[xxviii]. The “Standard test” or the “Principle and policy” test was laid down by Khanna, J.
Principle and Policy Test:
When the legislature confers powers on an authority to make delegated legislation, it must lay down policy, principle or standard for the guideline for the authority concerned. The decisions regarding the policy matters still rest with the legislature whereas only ancillary decision making functions are delegated.
At about the same time Mathew, J. put forward the “Abdication test”.
As long as the legislature can repeal the parent act conferring power on the delegate, the legislature does not abdicate its powers. This test was however not accepted. He subsequently enforced the same in N.K.Papiah v. Excise Commissioner[xxix]. Though at this point it is incorrect to test the validity of these tests, it is trite to say that both have their merits and demerits which can clearly be seen from the jurisprudence of delegation in the Indian setting.
Finally the one issue that this case has however not dealt with is – Who exactly decides what the essential functions are?
Vast powers of delegated legislation have been recognised and affirmed in the case with a principled caveat that the essential features of legislative power identified as the power of policy-making accompanied with annexation of sanctions may not be delegated away. This caveat is seldom brought into play by the Supreme Court of India[xxx]. The Apex court has time and again stated that it is the policy matters that constitute the important non-delegable functions. However this does not provide a fool-proof guarantee to identify the legislative functions that can be delegated. It remains for the courts to decide, in each case as and when the situation arises, what the essential non-delegable functions are and what are not. Being recognized as the sentinel on the qui vive and because of the paramount obligation imposed upon it by Article 141 of the Constitution, which declares that the law made by the Supreme Court is the law of the land, the Apex court has been vested with this all important duty in the hope that “justice should not only done but is manifestly and undoubtedly seen to be done”[xxxi].
The case has been successful in achieving two ends:-
- It legitimized delegation of legislative power by the legislature to administrative organs;
- It imposed an outer limit on delegation by the legislature.
It is thus submitted that the legitimacy of delegation is no longer a question of dispute. The only issue that arises is with respect to the limits imposed upon the delegation. Several years after the case at hand it is safe to say that this is an ongoing process. As times change and as the need of the society change, different limits will have to be cast upon delegation. The different controls will have to be made more stringent and the leash shortened or let loose as the situation demands.
Finally, the present case has formed the foundation on which issues regarding the possibility and extent of delegation of legislation have started to become unambiguous. It has laid down the groundwork and has left it to the judicial system to carry forward this fundamental principle.
The case specifically lays down that the British or the American model cannot be implemented as such in India. The Indian system, though it has borrowed extensively from other systems round the world, deserves better. It is humbly submitted by this author that, the position in this case be regarded as the “Indian model on Delegated Legislation” set forth for other countries to consider.
Edited by Kanchi Kaushik
[i] Thakker.C.K., “Administrative Law”, (1992), Eastern Book Co., p. 31
[ii] Jaffe and Nathanson , Administrative Law: Cases and Material, (1961) at p. 38
[iii] Upendra Baxi : Developments in Indian Administrative Law, in “Public Law In India” (1982) (A.G. Noorani, Ed.), p. 136
[iv] AIR 1955 SC 549
[v] Keshavananda Bharati v. State of Kerala, (1972) 4 SCC 225
[vi] Wade: Administrative Law, p.251
[vii] AIR 1951 SC 332
[viii] 1873 3 AC 889
[ix] Per Markby, J., Calcutta High Court
[x] (1949) 2 FCR 595
[xi] J.W.Hampton Jr. & Co. v. U.S.; 276 U.S. 394 (1928),
Panama Refining Co. v. Ryan; 295 U.S. 495 etc.
[xii] (1990) 169 CLR 482
[xiii] Per Richard,J. in New South Wales v. Commonwealth
[xiv]  UKPC 59;  9 AC 117
[xv]As in the case of Queen v. Burrah; (1878) 5 I.A. 178
[xvi] Supra ft. 4
[xviii] Government of India Act, 1935
[xix] Supra ft. 4
[xx] Per Fuller J. in Stoutenburgh v. Hennick ; (1889) 129 U.S. 141
[xxi] Substituted with [a State] by the Constitution (Seventh) Amendment Act, 1956 (w.e.f. 1-11-1956)
[xxii] Per Sastri,J. ibid
[xxiii] Supra ft. 4
[xxiv] Supra ft. 4
[xxv] The maxim means: The expression of one thing is the exclusion of the other
[xxvi] Meaning : the act of renouncing or abandoning privileges or duties especially connected with high offices
– Black’s Law Dictionary, 9th Edn., 2009
[xxvii] I.P.Massey, “Administrative Law”, Eastern Book Co. 7th edn.,2008 at Pg102
[xxviii] (1974) 4 SCC 98
[xxix] (1975) 1 SCC 492
[xxx] Upendra Baxi , “ The Myth And Reality Of Indian Administrative Law” as an introduction to I.P.Massey’s “Administrative Law”, 7th Edn..2010
[xxxi] Per Lord Chief Justice Hewart in R v. Sussex Justices, ex parte Mc Carthy