Re Delhi Laws Act Case [1951 AIR 332]

Facts and History of the Case:

Indian era can be divided into three phases to understand the case. They are: pre-independence, post-independence and post constitution.

In the case of Queen v. Burrah[1], the Privy Council primarily held regarding the constitutionality of delegated legislation in the first phase i.e., pre-independence period. The Lt. General was granted certain power by the act in dispute (Act XXII of 1869). The power was for regarding the act into effect and to determine which law were applicable and the power of extending the application of the said Act. The question which was raised before the Privy Council was whether the power to extend the application of Act which was granted to Lt. General is delegation of power. It was observed by the Privy Council that the Indian legislature is not an agent. It is also not a delegate against the High Court of Calcutta[2] but it was intended on having the legislature’s plenary power and parliament’s power of same nature as itself. The court held that the aforementioned powers were conferred to Lt. General only on the fulfilment of some conditions. Therefore it was a conditional legislation which is different from delegated legislation.

It was also stated y the court 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…..” Substantive delegation was laid by this case which means that if some functions which are important and are void in India, then their delegation needs to be conditional. After many cases on delegated legislation, the confusion was always there. A question was raised before the moot was whether the delegation of legislative power should be restricted as followed in America or it should be free as followed in England where delegation of much power could happen. The court was given the freedom to chose either as there are similarities between the UK and US with India. Also, the Constitution of India is silent on the question of legislature to delegated therefore the constitution can be made the basis for the issues.

The President of India asked the court’s opinion under Article 143 of the Constitution of India to remove the doubts regarding the validity of laws which contain such delegation.

Issues

Issues that were raised in this case were:

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?
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?
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?

Rule of Law

1. Section 7 of the Delhi Laws Act, 1912 states:

“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. Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 states:

”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. Section 2 of Part C States (Laws) Act, 1950 states:

“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.”

Analysis of Judicial Opinion

The bench comprised of seven judges thus provided us with seven different opinions. The questions were limited to which legislative can be delegate by legislature in India. The counsels put forth two extremist views. M C Setalvad was of the view that the power of delegation and legislation comes together and it does not result in abdication of powers. The other counsel was of the view that the concept of separation of powers exists in India and the country follows delegates non-potest delegare. Therefore prohibition of power delegation is implied. Both of these views were ‘extremely extremist.’ Hence a middle view was taken by the court.

The following view was taken up by the Supreme Court and the opinions of the judges were base on the following views:

• “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.

On the two points, the unity of outlook was observed. Firstly, the exigencies of the modern government have to be kept in view. To deal with several issues which are prevailing in India, central and state government have to delegate power. The second point is that the excessive freedom of delegation of legislative power cannot be exercised the same as the British Constitution, as the Indian legislature derives its power from the Indian Constitution.

The question as to the limits that were permissible within which the legislature can delegate their power is where the judges differed. One view was propounded that the legislature can delegate their power up to the limit where it’s own power is not abdicated and also have ultimate control over delegate where the legislature can withdraw the delegation if delegate did wrong. Another view that was propounded was that the legislative power for essential functions cannot be delegated by legislature such as formulation of policy etc. It means that policy or standards should be laid down by legislature in the delegating Act and thus delegate have the power to execute the policy.

Justice Fazal Ali gave the following conclusion regarding this case:

1. The primary legislative function should be discharge by legislature and not through others.
2. This delegated power is ancillary to and is necessary for the total and effective in exercising the legislature’s power.
3. Legislative function cannot be abdicated by the legislature and not becoming a parallel legislature.

Legislature should enact legislation and it cannot retire and leave the duty of law drafting to any other body. Delegating of lawmaking authority from one legislature to another body is forbidden by the Constitution.

Attorney General M C Setalvad claimed that Parliament has the authority to delegate because the legislative power that it has is for the power to delegate. This claim was rejected by Chief Justice Kania and Justices Mahajan and Mukherjea. They opined that the it is never per se warranted by the constitution about the delegation of powers at any stage and has agreed on the point that legislature can conditionally legislate. While doing so, conditions and facts can be stated which when ascertained or fulfilled according to the executive authority’s decision or decision by another body then in that particular area, the legislation can become applicable and this is known as conditional legislation.

Justice Bose in favor of delegated legislation and he also agreed with the above-mentioned opinion. But Justices Sastri and Das agreed to the contention and it differed from the opinion of the other judges. They made theory of Parliamentary Sovereignty, a basis for their decision and observed that where there is power to delegate, power to make law comes along with it.

After this case, things drastically changed in the country and now it is judicially accepted that power to delegate is a constituent element of ‘legislative power’ and it resides with the legislature. This is however near to the contention made by the Attorney General.

The legislative function cannot be a delegate in its true and intrinsic sense. Therefore it can be concluded that only non-essential functions can be delegated that are ancillary to the legislature’s essential function. Justice Mukherjea was of the opinion that if the policy in the broad term is laid down in an Act, the authority of formulation of policy details can be passed to the executive. Justice Mahajan commented that the legislature cannot delegate essential matters. Chief Justice Kania opined that laying down of policy which underlies rule of conduct cannot be delegated by legislature.

While extending an Act to a given area, the discretion to do alterations and modification and to do a consequential amendments in an existing law, is conditioned with the proposition that ‘essential function cannot be delegated’. The amount of discretion that is exercisable by a delegated authority is a question that cannot be defined.

The questions in this case are answered by the judges and the maximum of the judges answered the question affirmatively. Chief Justice Kania and Justice Mahajan are the only judges that answered in a negative way. They were of the view that the authority to alter or modify the law in a substantive sense lies with legislature only. Justice Fazal Ali observed that the power to change the things that are necessary to incidental to apply law. Within the framework, any modification is done and the identity or structure is not changed then no objection should be taken. It was observed by Justice Mukherjea that modification does not mean changing the policy but it is restricted within the alterations which introduces appropriate changes which suits the local conditions and keep the policy intact. Justice Bose was also of the same opinion. It is therefore concluded that the majority was of the opinion that executive can be authorized to do modification but it cannot be in an essential and intrinsic sense.

When the question of “Repeal of law” comes, it is a legislative power essentially and delegating this power to Government ultra vires the power to delegate.

Judgment

Justice Fazal Ali, Das and Sastri held that all the sections in issues are perfectly valid. The opinion of the majority was based on the maxim unis est exclusion alterious, and they ruled that an express provision that permits delegation which is contained in Article 357 would mean that legislation is uncontrolled which the constitution does not permit. The essential delegations cannot be delegated by the legislature in any condition. The minority’s opinion was based on the theory of legislative omnipotence of Parliament of Britain and the reflection of it in Canadian, Indian and Australian systems which included the power of delegating legislative function and subjected to the condition of “non-abdiction”.

 Delhi Laws Act, 1912 was delegated to the provincial Government whose power extended to parts of Delhi with restrictions and modification in any law that is in force in any part of British India.

Ajmer Merwara (Extension of Laws) Act, 1947 delegates the power to the Government for extending to province with the restriction and modification that Government seems fit.

Part C State (Laws) Act, 1950 states that Parliament legislate Central Government controlled Part C states which doesn’t have a legislature of their own. The power to extend the Part C states with restriction and modification that deems fit any enactment in Part A states which is in force is delegated by the Act to the Central Government. This Act also empowered the Government to amend or repeal the corresponding law which is applicable in the area.

The first two Acts and Section 2 of Part C State (Laws) Act was held valid by the Court. But the power to repeal or amend was held to be excessive delegation.

Conclusion

In this case it was observed by the Supreme Court for the first time that the principle that one organ should not perform the essential functions belonging to other organ is followed in India except the power vested by Constitution. This case laid down that because of the difference in the Constitution, the British model of delegated legislation cannot be implemented in India. This case defined the scope of delegated legislation while laying down the difference in delegation and conditional delegation. Majority of the judges except Chief Justice Kania and Justice Mahajan were in favour of delegated legislation. The two Judges emphasized on conditional delegation. On the contention by the opposite counsel, the court cleared that separation of powers does not fall under the Indian Constitution.

The concept of delegated legislation is well accepted in India. The necessity for this concept was realised as the powers and function of the organs increased and the need for delegation was felt. This case achieved two ends:

• It legitimized delegation of legislative power by the legislature to administrative organs;
• It imposed an outer limit on delegation by the legislature.

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References:

[1] 1878 3 AC 889.

[2] Empress v. Burah and Book Singh, ILR 3 Cal 64.