At this stage it may again be noticed v. India Act of 1915 in numbers, it had no control over

to discover any foundation either in the affirmative or in the negative words of the Act before them. to pass new jurisdiction of is considered the judgment does not support in respect of legislatures I have quoted in extenso extracts from ment because it foundation for argument advanced by the learned Attorney-General. In my opinion this the - contention as urged. The Privy Council noted the follo\ling : (1) That the Garo Hills were removed by the ~ct from the ordinary courts. (2) That in respect of the K.hasi and Jaintia Hills the same position had been arrived at; (3) That the power was to . be exercised over areas which, notwithstanding the Act, remained under the administrative control of the Lieut.-Governor. (4) That the authority given to the Lieut.-Governor was not laws but only to extend Acts which were passed by the Lieut Governor or the Governor-General Province both being competent area in question. He was not given any power to modify any law. (5) They rejected majority of . the Judges of the Calcutta High Court that the Indian Legislature was a delegate or an agent of the British Parliament. (6) That within the powers conferred on the Indian Legislature it was supreme and its powers were as plenary and of the same nature (7) That by the legislation as the British Parliament. legislative body with all the powers which it had. (8) The objec tion on the ground of delegation was rejected because it was. what was done was not delegation at all but legislation. Throughout conditional is .nowhere suggested that J. to the question framed by him (and quoted earlier in this judgment) was incorrect. (9) It emphasized that . the order of the Lieut~Governor derived its sanction from the Act of the Govenor-General and not because it was an order of the Lieut .. Govemor. (10) That in in Council ·(legislative) all that was necessary to constitute legis lation was found. This applied equally to future the area 3S the appropriate legislative body for W:i.~ judgment the answer of Markby Indian Parliament had not · created· a the Governor-General legislation of the view of 774 SUPREME COURT REPORTS [1951] t951 Jn re Th• Delhi l.11113 Act, 1912, ~le. «4•io C. I. the same. This decision therfore carefully and deli berately did not endorse the contention that the power of delegation was contained in the power of legislation. The Board after affirming that what was done was no delegation at all held that the legislation was only con ditional legislation. In Emperor v. Benoari Lal Sarma and others('), the the Special Criminal Courts question arose about Ordinance II of 1942, issued by the Governor-General under the powers vested in him on the declaration of an emergency on the outbreak of war· The validity India either of that Ordinance was challenged ( 1) because the language of the section showed that the Governor-General, notwithstanding the preamble, did that an emergency existed but was in future, making provision in case one should arise or {?~ else because the section amounted to what was the Governor called delegated legislation by which to pass the General without decision as to whether an emergency existed, to Provincial Government instead of deciding it for him the Government of self. The relevant provision of India A.ct, 1935, was in these terms : legal authority sought consider "72. The Governor-General may, m cases of emergency, make and promulgate ordinances for peace and good government of British India or any part thereof, and any Ordinance so made shall for the space of not more than six months from its promulga tion, have the like force of law as an Act passed by the power of making the Indian Legislature ; but to the like this section Ordinances under is subject restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this ~c­ tion is subject like disallowance as an Act passed by the Indian Legislature and may be ron trolled or superseded by any such A.ct." In rejecting tills second objectiop, their Lordships observed that under paragraph 72 of Schedule 9, Governor-General himself must discharge the duty of (I) 72 I. A.27. 1951 In re The Delhi Laws Aci, 1912,. etc. Kllnio C. J. S.C.R. SUPREME COURT REPORTS 775 reaffirmed to its necessity, the Attorney-General, the majority view of its validity on legislation. Moreover transfer it to other authorities. legislation and cannot But the Governor-General· had not delegated his le~ lative powers at all. After stating again that what was done was not delegated legislation at all, but was legislative merely an example of the not uncommon arrangement by which the local application of the pro judgment of a vision of a statute is determined by the local administrative body as Lordships disagreed with Federal Court that what was done was delegation of If the power of delegation was legislative functions. contained in the power of legislation as wide as con there appears no tended by reason why the Privy Council should have rejected the the Act was an act of delegation and argument that the ground that it was con upheld ditional following passage from Russell v. The Queen( 1 : "The short answer (against delegation of to this objection legislative power) is that the Act does not delegate any legislative powers whatever. itself the whole legislation on the matters with which it deals. The provision the Act shall that certain parts of come into operation only on the petition of a majority these persons powers of electors does not confer on the condition follow upon the condition and everything which is to this kind (Jeing fulfilled. Conditional is in many cases convenient, and legislate cannot be unusual, and denied to the Parliament of Canada when the subject (The last mentioned italics are mine). Support for statement was the Privy Council in The Queen v. Burah( 2 ). It is clear that this Even decision does not carry though this was a war measure the Board emphasized that the Governor-General must himself discharge the duty of legislation and cannot transfer to other impugned Act and authorities. They examined competency." the matter further. It contains within the decision of the power so legislation of itself enacts is certainly is with'.in PaNiament legislation found in legislate. ) t (I) 7 App. Cas. 629. (2) 5 I. A. 178. 776 SUPREME COURT REPORTS [ 19511 came to the conclusion that it contained within itself the whole legislation on the matters with which it dealt and there was no delega6on of legislative functions. 19'1 bi re The Delhi I.ow• .ifct, 1912, etc. Can/a c.' I. subsidiary Indian Legislature except the British Parliament, that the A close scrutiny of these decisions and the observa tions contained therein, in my opinion clearly discloses that instead of supporting the proposition urged by the Attorney-General impliedly that contention is nega tived. While the Judicial Committee has pointed out that the Indian Legislature had plenary powers to legis late on the subjects falling within its powers and that those powers were of the same nature and as supreme they do not endorse the contention that it could not create another body with the same powers as it has or in other words, efface itself had unlimited powers of delegation. When the argument of the power of the Indian Legislature to delegate legislative powers that manner to subordinate bodies was directly urged before the Privy Council in each one of their decisions the Judicial Committee has repudiated the suggestion and held that what was done was not delegation but legislation. Thus while the Board has reiterated its views that the powers of the Indian Legislature were "as plenary and of the same nature as the British Parliament" no one, in no case, and in no circumstances, during Indian Legislature stated that the seventy years, has has power of delegation (as contended in this case) and which would have been a direct, plain, obvious and conclusive answer to the argument. that, legislation ii> each they have examined the . impugned case and pronounced on its validity on the ground that it was conditional or subsidiary legislation. The same attitude is adopted by the Privy Council in respect of the Canadian Constitution. The expressions "subsidiary" or "conditional legislation" are used to Indicate the powers confer.red on the subordinate bodies were not powers of legislation but powers conferred only to carry the enactment into operation and effect, or functions the Legislature having discharged fact upon the basic conclusions of legislation or conditional Instead of legislative specified S.C.R. SUPREME COURT REPORTS 777 relevant data by a desig ascertainment of which, from nated administrative agency, that body was permitted to bring the statute into operation. Even in such cases the Board has expressly pointed out force of these rules, regulations or enactments does not arise out of the decision of the admidistrativc or executive authority . to enactment thereunder. The authoritative force and binding nature of· the same are in the itself. legislature Therefore, a correct reading of these decisions does not support the contention urged by the Attorney-General. enactment passed by framed o?eration that the 1951 ln"e The Delhi Law1 Act, 1912. etc. Ka11ia C. J. temperance Some decisions of the Privy Council on appeal from the Supreme Court of Canada and some decisions of the Supreme Court of Canada, on the point under dis learned Att~rney-General relied cussion, on which the In Hon!(e v. for his contentio~ may be noticed next. The Queen( 1 ), which was an appeal from the Court of Appeal, Ontario, Canada a question about the validity of the Liquor Licences Act arose. After holding laws were under section 92 of British North America Act for "the good government" their Lordships considered the objection that the Im perial Parliament had conferred no authority on local legislature to delegate those powers to the Licence In other words, it was argued that Commissioners. 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 delegata potestas non potest delegare was relied upon to support the objection. Their Lordships observed : ''The objec tion thus raised by the appellants was founded on an entire misconception of the true character and position of the Provincial Legislatures. They are in no sense delegates of or acting under mandate from, Im perial Parliament. When the British North America Act enacted Ontario and that its Legislative Assembly should have exclusive authority to make laws for the Province and for Provincial purposes there should be a legislature relation the matters · for . Cl) 9 App. Cas. 117. 19SI 111e De/Iii Law1Act,1912, etc. Kt111it1 C. J. 778 SUPREME COURT REPORTS [1951} the . plenitude of Imperial Parliament in enumerated in section 92 it conferred powers, not in any sense to be exercised by delegation from, or as agents of. the Imperial Parliament, but authority as plenary and as ample with in the limits prescribed by section 92 power possessed and could bestow. Within legislature is limits of subiects and area supreme and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a munici pal institution or body of its own creation authority tQ make bye-laws w resolutions as to subjects specified in· the enactment, and with the object of carrying the enact ment into operation and effect. the local that a It is obvious 'is ancillary to that such authority, legislation' and without it an attempt to provide for varying details and machinery to carry them out might become oppressive or absolutely fail. ... It was argued at the Bar important legislature committing regulations to agents or delegates effaces itself. That It retains its power intact and can whenever is not so. it pleases destroy the agency it has created and set up another or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies and how long it shall continue the legislature and not for the .courts of law to decide." (The italics are mine). As regards the creation of new that if bye-laws or offences, their Lordships observed resolutions are warranted seemed necessary and equally lawful. the power to enforce them are matters This case also does not help the Attorney-General. regula It recognises only the grant of power to make . tions which are "ancillary to legislation". In In re The Initiative and Referendum Act('), the Act of the Legislative Assembly of Manitoba was held O\ltside the scope 2f section 92 of the British North America Act inasmuch as it rendered the Lieut.-Gover noc pbwerless to prevent the Act from becoming actual if approved by the voters, even without his con law, sent. Their Lordships observed; "Section 92 of (!) 1919] A. C. 935. S.C.R. SUPREME COURT REPORTS 779 Act of 1867 intrusts the legislative power in a Province that legislature only. No doubt to its legislature and to a body with power of si:ibjects en legislation on the trusted to it so ample as that enjoyed by a Provincial Legislature in Canada could, while preserving its own capacity subordinate agencies as had been done in Hodge v. The Queen(1) but it does not follow that it can create and endow with its own capacity a new legislative power not creat ed by the Act to which it owes its own existence." the assistance of intact, seek 1951 In re The Delhi Laws Act, 1912, etc. Kania C. J. judgment India Act and In In re George Eduin Gray(2), the question of delega tion of powers in respect of the War Measures Act, 1914, came for consideration. The prov-isions there were very the Rules similar to the Defence of made thereunder in India during the W arid War I. In Sir Charles · Fitzpatrick C. J. delivering observed as follows :-"The practice of authorising ad m'mistrative bodies to make regulations to carry out the ob; ect of an Act instead of 1etting out all the details of the Act itself is well known and its legality is un questioned." He rejected the argument that such power cannot be granted to the extent as to enable the ex· press pr~visions of a statute to be amended or repealed, as under the Constitution, Parliament alone is to make· laws under the Canadian Constitution. He observed that Parliament cannot function but within reasonable limits at any rate it . can delegate its powers to tqe executive government. Such powers must necessarily be subject to determination at any time by Parliament. He observed .: "I .cannot however that Constitutional Act which would find anything in impose any limitation on the authority of the Parlia ment of Canada to which the not subject." Against the objection that such wide discretion should not be left to the executive he observ ed· that this objection should have been urged when the regulations were submitted to Parliament approval or better still when the War Measures Act was being discussed. The Parliament was the delegat ing authority and it was for· that body to put any Imperial Parliament indeed abdicate its (I) 9 App. Cas. 111. 4-3 S.C.India/68 (2) S7 S. C. R. Canada 150. 780 SUPREME COURT REPORTS [1951] l9Sl The Delhi Lawa Act, 1912, etc. 1flmla c. J. limitations on the powers conferred upon the executive. He then stated : "Our legislators were no doubt im pressed in the hour of peril with the conviction the safety of the country was the supreme law against which no other law can prevail. It is clearly our duty to give effect to their patriotic intentions." supreme subordinate interests of further question In the Chemical, Reference case('), Duff C. J. set out the true effect of the decision in the War Measures Act. He held that the decision of the Privy Council in the Fort Frances' case ( 2 ) had decided the validity of the War Measures Act and no remained in the respect. He stated : "In In re Gray(") was invol ved the principle, which must be taken in this Court to be settled, that an Order-in-Council in conformity with the conditions prescribed by, and the provisions of, the War Measures Act may have the' effect of an Act of Parliament." The Court considered that regulations framed by the Governor-General in Council to safeguard the State were made by the Governor-General in Council "who was conferred authority." He stated : ''The judgment of the Privy Council in the FfJrt Frances' case( 2 that in an emergency, such as war, Dominion in respect of legislation relating to the peace, order and good government of Canada may, in view of the necessities arising from the emergency, disable or over-bear the authority of the Provinces in relation to a vast field in which the Provinces would otherwise fu>ve exclusive It must not however be taken for granted that every matter within the diction of the Parliament of Canada even in ordinary times could be validly committed by Parliament the executive for legislative action in the case of an emergency." Unlike the British North America Act there is no power to suspend the Constitution or enlarge legislative powers in an emergency like war. The Courts therefore stretched the language of the sections to meet the emergency in the principle the authority of Indian Constitution, in ), laid down jurisdiction. legislative .the (I) [1943) S. C.R. Canada I. (3) [1918) 57 S. C.R. Canada ISO. (2) [1923) A. C.695. 1951 The Delhi Lawa Act, 1912, etc. Kania C. I. S.C.R. SUPREME COURT REPORTS 781 the highest interest of the country but it also empha sized that such action was not permissible in ordinary times. It appears to be thought respect of limited duration. The discussion judgment of The War Measures Acts were thus considered by the Supreme Court of Canada on a different footing. The the unusual question was of competence but owing to circumstances and exigencies what was stated in legislation was considered a sufficient statement of legislative policy. same/ test cannot be applied in legislation made in normal times, in respect of a permanent statute whic.h is not of Benaori Lal Sarma's case (1) in Privy Council mentioned above may be usefully noted in this connection as the legislation in that case was also a war measure but was held valid as conditional legislation. Canadian decisions go beyond what is held in the Privy Council decisions, with respect, I am unable to the word "delegation" has agree. been given an extended meaning in some. obtetvations found ln of the Canadian courts beyond what is It is important to . notice Privy Council decisions. the Privy Counci~ the word in all the judgments of "delegation" as meaning legislative functions strictly, is not u$ed at all in respect of. the deliberately impugned the ground avoided. Their validity was upheld on that the legislation was either conditional or subsidiary or ancillary legislation. · the observations conferment of It appears legislation and has In so An important decision of the Supreme Court of Austra lia may be noticed next. In the Victorian Stevedorina and General Contracting Company Proprietary Ltd. v. Dignan( 2 ), the question whether delegation of legis lative · power was according to the Constitution came to be examined by the High Court of Australia. It was argued that section 3 of the Act in question wal in so far as it purported to autho ultra vires and void rise the Governor-General to make regulations whid. (notwithstanding anything in any other Act) shall have (I) 72 I. A. 27. (2) 46 Com. L. R. 73. 1951 In re Tie Delhi Laws Act, 1912, etc. Kania c. I. • 782 SUPREME COURT REPORTS [1951] that no law-making may be legislative body can delegate In the judgment of Gavan Duffy C.J. the force of law. and Starke J. it was stated : "The attack upon Act itself was based upon the American Constitutional doctrine another department of the Government or to any other authority the power either generally or specially to enact laws. This high prerogative has been entrusted to its own wisdom, judgment and patriotism and not to those of other persons and it w'ill act ultra vires if the trust instead of executing it undertakes to delegate it. (Cooley's Principles of Constitutional Law, 3rd Edition, p. 111). Roche v. Kronheimer(') was an autho that an authority of subordi rity for the proposition the executive. invested in Whatever may be said for or against that decision I think we should not now depart from it." Mr. Justice the argument fully in these terms : Dixon considered ''The validity of this provision is now attacked upon the ground that it is an attempt to grant to the execu tive a portion of the is inconsistent Constitution with distribution made by lative executive and iudicial powers. In support of Invest another organ of the rule that Congress cannot government with legislative power a second doctrine is relied upon in America but it has no application to the powers of the Australian Constitution. Betause Government are considered to be derived authority of the Union no agency to the people of whom the people have confided a power may delegate its exercise. The well-known maxim delegata potestas non potest delegare applicable to law of agency in the general and Common Law is well understood and the constmction of our has had wider application in Federal and State Constitutions than it has in private laws. No similar doctrine has existed in respect of legislatures whether erected in virtue British Colonial of the prerogative or by Imperial Statute .... It is impor tant to observe that in America the inrapretatior doctrines of agency legislative power vested by the Parliament which the Constitution of into Constitutional intrusion of (I) (1921) 29 Com. L. R. 329. 1951 In re The Delhi Laws Ad, 1912, etc. Kania C. J. 1 S.C.R. SUPREME COURT REPORTS 783 In respect of the from its very nature· intendment has in no way obscured the operation of the· separation In the opinion of the Judicial Committee of powers. a general power of legislation belonging to a legislature constituted under a rigid Constitution does not enable it by any form of enactment to create and arm with legislative power general legislative authority a new not created or authorized by the instrument by which it is established." legislation passed during the emergency of war and where the power was strongly relied upon, Dixon J. observed : "It might be considered that the exigencies which must be dealt with under the defence power are so many, so great and so urgent and are so much the proper concern of the executive the power to authorise a dele appears by necessary legislature gation otherwise generally forbidden to .......... I think it certain that such a provision would the passage in Burah's be supported in America and case appears to apply the Judidal in which that in fact any delegation there took Committee deny place .......... This does not mean that a law confiding authority to the executive will be followed, however extensive or vague does not fall outside the boundaries of federal power. the distribution of powers can Nor does it mean supply no validity ............... It may be acknowledged the Constitution accomplishes . the manner theoretically separation of power makes the Parliament legislative power of the Commonwealth. The existence subordinate in Parliament of power- to legislation may be ascribed to a conception of juristic legislative the history and usages analysis and perhaps more upon of British theories of English law ........... Such subordinate legislation remains under Parliamentary control and 'is lacking in the independent and unqualified authority which is an attribute of legislative power." He concludes : "But whatever may be, we should now adhere to the interpretation considerations or weight affecting the subject-matter may be the executive repository of power which depends legi~lation and logically and less upon in which authorise itself 1951 In re The Delhi Laws A.ct, 1912, etc. Kania C. J. 784 SUPREME COURT REPORTS [1951] which results from heimer('). the decision of Roche v . . Kron refuting the argument This whole discussion shows that the learned Judge Constitution of U. S. A. such conferment of power would be invalid it should be held Canadian Constitution also. He was not dealing with the question raised before us. Ultimately he said Roche V· Kronheimer(') was conclusive; that because under invalid under larger government remembered formulated responsible to Parliament. That system Mr. Justice Evatt stated that in dealing with legislative power. The legislative power of doctrine of the separation of legislative and executive powers "it must be that underlying Commonwealth frame of notion of the British system of an executive wh'ich is not in the United States' Constitution. operation He proposition the Commonwealth Parliament of authority grant by the grantee . to make rules and regulations, whether the executive government or some such authority, true nature is itself a grant-of and quality of the Com monwealth Parliament involves as a part of its con tent power to confer law-making powers upon authori If such power ties other than Parliament itself. issue binding commands may lawfully be granted by the executive or other agencies an in Parliament to the extent of such power cannot of itself crease in invalidate the grant. It is true that the extent of the power granted will often be a very material circum stance in the examination of the validity of lation conferring the grant." learned Judge appears certainly to have gone much beyond what had been held in any previous decision but he seems to have made terms because (as he himself had stated just previously) in his view every conferment of power-whether it was by conditional legislation-was legislation or ancilary a delegation of legislative power. He concluded how ever as the observations in this paragraph follows : "On final analysis therefore In (I) (1921) 29 Com. L. R. 32~. 1951, In re The Delhi Law.r Act, 0 912, etc. Kania C. J. S.C.R. SUPREME COURT REPORTS 785 Parliament of the Commonwealth is not competent legislation. This is not because abdicate its powers of Parliament is bound to perform any or all of its lative powers or functions for it may elect not to do so; and not because the doctrine of the separation of powers prevents Parliament from granting authority to other bodies to make laws or byelaws and thereby d:ercise legislative power for it does so in almost every statute but because each and every one of the laws passed by Parliament must answer the description of law upon one or more of the subject-matters stated in the Con stitution. A law by which Parliament gives all its law making authority to another body would be bad merely because it would fail to pass the test last mentioned." therefore do Read properly, !.Ot support learned Attorney General. judgements contention of ' . In further. light of the facts of The decisions of the Privy Cow1cil on appeal from Canada do not carry the matter Judgements of the two decisions of the Supreme Court of Canada and the decisions of the Supreme Court of Australia there are observations which may appear to go beyond the limit mentioned above. These observa tions have to be read on case and the particular regulation or enactm.::nt before the court in each case. These decisions also uniformly reiterate that the legislature must perform its functions leave that to any other authnrity. More and cannot over the word "delegation" as stated by Evatt. J. in his judgment is understood by some Judges to cover what legislation is described also. Therefore because at some places in ments the word "delegation" is used it need not be assumed that the world necessarily means delegation the strict sense of the word. The actual decisiom were on legislation or con ground that they were subordinate the Constitu ditional legislation. Again, in I may tions of the Dominions of Canada and Australia observe that the those Dominions were legislatures of not packed, as in India, and their Constitl.!tion was legislative functions, as understood subsidiary or conditional respect of 951 In re The Delhi Laws Act, 1912, etc. Kania C. 1. 786 SUPREME COURT REPORTS [1951] on democratic lines. The principle of fusion of powers the Legislature and Executive can well be between those Dominions, while as considered in operation in I ha.ve pointed out above there was no such fusion at all so far as the Indian Constitution in force till 1935 was concerned. Conclusions fusion of legislative and executive powers are not pro perly applicable In my opinion therefore to. the extent the observations in Canadian and Austrilian decisions go beyond what is clearly decided by the Privy Council in respect of Indian Legislature, they do not furnish a useful guide to determine the powers of the Indian Legislature to administrative or delegate legislative executive authorities. Indian Constitution. therefore based on functions insrruments. To The Canadian and Australian Constitutions are both based on Acts of the British Parliament and therefore are creatures of written that extent they are rigid. Moreover in the Australian Constitu tion in distributing the powers among the legislative the word "vest" is used as and executive authorities, in the Constitution of the U.S.A. To that extent two Constitutions have common however no clear .legislature and executive so as to be mutually and fusion of power so completely exclusive and the Ministers are legislature. there is themselves members of separation of powers between features. There Our attention was drawn to several decisions of the Supreme Court of the United States of America mostly legislative powers to draw a distinction between of the Congress in the United States of America and the legislative powers of the legislature under Consti tutions prepared on the British Parliament pattern. It was conceded that as itself pro vided that >the legislative and executive powers were legislature and the executive to vest exclusively in the the Constitution, it was not authority mentioned in this authority permissible for one body and functions to another body. It may be noticed that several decisions of the Supreme Court of U.S.A. the Constitution co delegate S.C.R. SUPREME COURT REPORTS 787 function as the delegate incompetence of the power sought to be conferred on it. are based on receive ~ompetence to pressly set out in thought that impliedly prevented such body from tive body other powers. sion I shall very briefly notice to the U. S. A. Constitution. Its the executive body is ex the Constitution, and it has been thereby legisla final conclu ;i,ccording the Constitution has receiving from In view of my the position 1951 In re The Delhi Laws Act, 1912, etc. Kania C. J. legislature must declare It may be laid down in broad general In Crawford on Statutory Construction, it is stated the delegation of any as follows : "So far however as power to an executive official or Administrative Board is concerned, the the policy of the law and fix legal principles which are to control in given cases and must provide a standard to the Board, empowered to execute guide the official or indefinite or the law. This standard must not be too general. terms. lay down ah It is sufficient intelligible principle to guide the executive or adminis- trative official. ......... From these difficult criteria it is considerable apparent liberality towards upholding a standard is established. Such delegations are not subject to the objection that the legislative power has been unlawfully delegated. The filling in mere matters of details within the policy of, and according to, standards, legal principles and established by Legislature, essentially ministerial legislative in character, even if considerable discretion is conferred upon the delegated authority." the Congress exercises legislative delegations legislature will rather In Hampton & Co. v. United States(1), Taft C. J. <Observed : "It is a breach of the national fundamental legislative power and 1aw if Congress gives up judicial branch transfers it to the President or to the law it attempts to invest itself or its members Qr if by with either executive or judicial power. This is not to say that the three branches are not co-ordinate parts of one Government and that each in the field of duties (I) (1928] 276 u. S. 394, 406 and 407. 1951 In re The Delhi Laws Act, 1912, etc. Kania C. J. 788 SUPREME COURT REPORTS (1951] may not invoke the action of the two other branches in so fas as ihe action invoked shall not be an assump tion of the constitutional field of action of another branch ...... The field of Congress involves all and many varieties of legislative action and Congress has found it frequently necessary to use officers of the executive branch within defined limits to secure to exact effect legislation by vesting discre intended by its act of tion in such officers to make public regulations, preting a statute and directing the details of its execu tive even to the ex.tent of providing for penalizing a breach of such regulations ............ Congress may feel itself unable conveniently to determine exactly when legislative power should become its exercise of effective, because dependent on future conditions, and it may leave the determination of such time to the decision the often cited of an executive." He agreed with passage Supreme Court of Ohio in Cincinnati W,. & Z. R. Co. v. Clinton County Commissioners('), viz "The true distinction therefore is between the delegation of power to make the law which necessarily involves a discre tions as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." judgment of Ranny J. of In Locke's Appeal(2 ), it is stated : "The proper distinction in this. 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. things upon which useful legislation must depend, which cannot be ktrown therefore be a to the the halls subject of enquiry and determination outside of legislature.'~ law-making power and _must There are many In Panama Refining Co. v. Ryan ( 3 ) , it was observed by Hughes C.J. : ''The Congress is not permitted to (I) I Ohio St. 88. (2) 72 p.'A. 491. (3) 293 U.S. 388. 1951 In re The Delhi Laws Act, 1912. etc .. Kania C."J. S.C.R. SUPREME COURT REPORTS 789 function in cannot deal the Congress regarded as denying to to others the essential instrumentalities making limits and establish standards, while legislative abdicate or transfer functions with which it is vested. Undoubtedly legis lation must often be adapted to complex conditions in volving a host of details with which the National Legis directly. The Constitution has lature never been flexibility and practicality which necessary resources of laying down will enable it to perform its leaving policies and selected subordinate the determination rules within prescribed of facts to which the policy as declared by lature is to apply. Without capacity to give autho risations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility but the constant recognition of the necessity and validity of such pro visions and the wide range of administrative authority which has been declared by means of them cannot be allowed limitations of the authority to delegate if our constitutional system is to be maintain in Schechter v. United States('), it is ed. Similarly, stated : "So laid down and long as the policy standard established by a statute no unconstitutional delegation of legislative power is leaving to selected instrumentalities the making of subordinate rules within prescribed the determination of facts to. which the policy as declared by the legisla ture is to apply." to obscure the involved in limits and -~ led to The complexity of this question of delegation of the various decisions power and the consideration of in which its application has the support or invalidation of Acts has been somewhat aptly put by Schwartz on American Administrative Law. After quoting from Wayman v. Southend (2) the observa tions 0£ Marshall C. J. that the line has not been exactly important subjects which drawn which 'separates those must be entirely itself from those of less interest· in which a general provision those who are to may be made and powers given to regulated by legislature (I) 29S U.S. 459. (2) 10 Wheat 1 U.S. 1825. 1951 Jn re The Delhi uws Act, 1912, etc. Kaniil C. I. 790 SUPREME COURT REPORTS [1951] act under such general provision to fill up details, the author ·points out that the resulting judicial dilemma, finally were squarely con when the America courts fronted with delegation cases, was judicious .choice of words to describe the word "delegat ed power". The authority transferr.ed was, in Justice Holmes' felicitous phrase, "softened by a quasi", and the courts were thus able to grant the fact of delegat the name. This result is well put in Prof. Cushman's syllogism : legislation and still resolved by to deny "Major premise : Legiilative power cannot be con stitutionally delegated by Congress. Minor premise : It is essential that certain powers regulatory be delegated to administrative officers and commissions. Conclusions : Therefore the powers thus delegated are not legislative powers. They are instead administrtaive or quasi-legislative powers." In my opinion out of It was argued on behalf of the President legislature, In support of the case that the legislative practice in India for over eighty years has recognised this kind of delegation and as that is one of the principles which the court has to bear in mind in deciding the validity of Acts of the Court should uphold that practice. contention a schedule annexed to field on behalf of the President, containing a list of Acts, is relied upon. the very few Acts which on a close scrutiny may be cited as instances do not establish any such practice. A few falling under the of the instances can be supported as description of conditional subsidiary legislation. in greater detail because unless is overwhel mingly clcor, tolearance or acquiescence in the existence of an Act without a dispute about its validity being law for some years cannot be con raised in a coun of the validity sidered binding, when a question about of such practice is for decision In my opinion, therefore, this broad before the Court. legislative practice I do not discuss legislation or raised and S.C.R. SUPREME COURT REPORTS 791 the Attorney-General contention of Legislature prior to 1935 had power to • delegate lative functions neither supported by lative practice. the sense contended by him judicial decisions nor by the Indian 19Sl . In re The Delhi Laws Act, 1912'. etc. Kania.C.J. . -; -, A fair and close reading and analysis of all therein lead me to the conclusion legislative decisions of the Privy Council, the judgments of the Supreme Courts of Canada and Australia without the words and expressions stretching and straining that while a legislature, as a part of its functions, can confer powers to make rules and regulations for carry ing the enactment into operatiqn and effect, and while legislature has power to lay do:nn the policy and a principles providing the rule of conduct, and while it may further provide that on certain data or being found and ascqtained by an executive authority, the Act can be extended· to certain the operation of areas or may be brought into force on such determina tion which is described as conditional legislation the power to delegate legislative functions generally is not the Constitution of warranted under India at any stage. In cases of emergency, like war where a latitude has to be necessar.ily the matter of enforcing regulations scope:: of the power to make regulations is very wide, but even there was delegation in those cases the suggestion Similar of "legislative functions" has been repudiated. ly, varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary In lation is equally upheld under all the Constitutions. my opinion, the contention urged by learned Attorney-General that legislative power carries with it a general power to delegate legislative functions, legislature may not define its policy at all so that the and may lay down no rule of conduct but that whole the executive authority ot thing may be is unsound and not administrative or other body, supported by the authorities on which he I do not think that apart from the sovereign character oi the executive, left either to therefore, relies. 792 SUPREME COURT REPORTS [1951] 1951 In re The Delhi Laws Act, 1912, etc. Kaaia C. J. the British Parliament which as a matter of comrention and whose powers are also there fore absolute and unlimited, in any legislature of any other cc,.:.ntry such general powers of delegation as claimed by legislature, have been recognised or permitted. the Attorney-General established for a that so that the legislation or In support of itself. That was its It was contended by the placed on certain observations in learned Attorney-General that under the power of delegation the legislative body cannot abdicate or efface limit. It -ras argued that so long as the legislature had power to control the actions of the body to which power was delegated, long as the actions of such body were capable of being revoked there was no abdication this argument some or effacement. reliance was judgments of the Privy Council in the cases mentioned It should be noticed that the Board was ex above. that the the conclusion pressing its views to support legislation under consideration was particular piece of legislation either a conditional derived its force and sanction from what legisla the delegate had ture had done and not from what done. lead to I do not think that the conclusion that up to that limit legislative delega tion was permitted. The true test in respect of "abdica tion" or "effacement" appears to be whether in con ferring the power to the delegate, the legislature, in the wfJrds used to confer the power, retained its control. Does the decision of the delegate derive sanction from the act of the delegate or has it got the sanction from what the -legislature has enacted and decided ? Every power given to a delegate can be normally called back. There can hardly be a case where this cannot be done because the legislative body which confers power on the delegate has always the power authority and it appears difficult to visualise a situa lost. irrevocally It has been legislative body esta the British Parliament by blished under an Act of its very establishment has not to create legislative body with the same functions and another in which such power can be those observations recognised re¥oke that a 19Sl In re The Delhi Laws A.ct, 19f2, etc. Kania C. J. S.C.R. SUPREME COURT REPORTS 793 the question whether the authority which confers Such power can be only in powers and authority. the British Parliament and not legislature established by an Act of the British Parliament. Therefore, to say test of effacement is power on subordinate body should not be able to . withdraw the power appears to be meaningless. In my opinion, there is "abdication" therefore, and "effacement" or not has to be decided on meaning of words used in instrument by . which the power is conferred on the authority. Abdication, according to the Oxford Dictionary, means abandon ment, either formal or virtual, of sovereignty. Abdi cation by a necessarily amount to a complete, effacement of it. Abdication in respect of a may be partial or complete. When subject that it shall not that subject ·but would leave it to somebody else to legislate on it, why does it not amount to abdication or effacement ? If full powers legislature to do anything and everything which the subordinate authority, can do are conferred on although legislature control the action of recalling such power or the sub ordinate authority, the power conferred by the instru ment, in my opinion, amounts to an abdication or effacement of the legislature conferring such power. power . to the subordinate authority, by repealing the Acts passed by the Legislative List legislative body legislate on need not legislature The power to modify an Act in its extension by the order of th~ subordinate authority has also come in for considerable discussion. Originally when power was conferred on the subordinate authority to apply exist ing legislation to specified areas it was given only to apply the whole or a portion thereof. That power was restrict its further expanded by giving a power · to In the next stage power was given application also. local condi to modify "so as to adapt the same" to tions. tion was the delegate on whom power was conferred was only left with the discretion to apply who was considered suitable, as a whole or in part, It is obvious that till this stage the clear 1951 In re The Delhi Law1 Act;l912, etc. Kmrlo C. J. · 794 SUPREME COURT REPORTS [1951] to make tone- down." the exercise of the other hand, limit, restrain, . to assuage, to make adaptations which became necessary because of local conditions and nothing more. Only in recent years in some Acts power of modification is limitation on that power. given without any words of The learned Attorney-General contended that the word the Oxford Dictionary means "modify" according less severe, "to It is also given rigorous, or decisive ; to the meaning "to 'make partial changes in ; to alter without radical transformation·" He therefore contend ed that if the donee of the power exceeded the limits that ~nse, that of the power of modification beyond would be exceeding the limits of the power and to the power may be declared extent invalid. He claimed no larger power under in Rowland "modification". On Burrows' "Words and Phrases", the word "modify" has been defined as meaning "vary, extend or enlarge, that modification limit or restrict." It has been held implies and alteration. It has been pointed out provisions of the former Act. that under the powers conferred by the Delhi Laws Act, the Central Government has extended the appli the Bombay Debtors' Relief Act to Delhi. cation of The Bombay Act limits its application to poor agri culturists whose agricultural income is less than Rs. 500. the power of modification conferred on it by Under the Central Government has the Delhi Laws Act, removed this limit on the result that the principles, policy and machinery to give relief to poor peasants or agriculturists with an than Rs. 500 is made applicable in Delhi to big income of 20 lakhs ! ! This owners shows how the word "modification" is understood and applied by the Central Government and acquiesced in by the Indian Legislature. I do not think such power of modification as actually exercised by the Central If power of modifi Government is permitted in law. cation so understood is permitted, it will be open to the Central Legislature in dfcct to change the whole basis of the legislation and the reason for making It may narrow or enlarge income, with the .even with an in_£ome of S.C.R. SUPREME COURT REPORTS 795 the event of the exercise of legislative law. That will be a complete delegation of power because in power in that manner the Indian legislature has not applied its. mmd either to the policy under whicli reli~t should be g'1ven nor the class of persons not the cu cumstances nor the machinery by which relief is to be given. The provisions of the Rent Restriction Act in different Provinces are an equally good example to show how dangerous it is to confer the power of modification on the executive government. 1951 In re The Dellll Laws .ifct, 1912, Kania, C. J. consideration Having considered all the decisiOJ,l.S vv, liich were cited before us and giving 'anxious elaborate and detalled arguments advanced by . the learned Attorney-General in the discussion of this case, /atindra Nath Gupta's I adhere to what I stated in case{1) that the power of delegation, in the sense o~ the legislature •conferring power, on either the execut:lve government or another authority, "to lay down the policy underlying a rule of conduct" is not permitted. The word "delegation'', as I have pointed out, has been somewhat loosely used in the course of discussion and even by some Judges in expressing their views. As I have pointed out Privy Council the word "delegation" is used so as not to cover what is described as conditional legislation or subsidiary or ancillary . legislation, which means the· to bring . into power to make rules and operation and effect the enactment. Giving "delegation" the meaning which has always been given to it in decisions of the Privy Council, what I stated /atindra Nath Gupta's case as legislature not in my opinion correct. the power of delegation is, throughout the decision of regulations Under the new Constitution of 1950, the British Parliament, i.e., . an outside authority, has no more control over the Indian Legislature. That Legislature's · powers are defined and controlled and the thereon pres.cribed only by the Constitution of But the scope of its limitations India. legislative power has not become (l) [1949] F. C.R. 595. $--)SC India/61.1 19S1 Jn re The .Delhi Laws A.ct, 1912, etc. Kania C. J. 796 SUPREME COURT REPORTS [1951] legislative functions, viz., legislative policy and the Constitution creates the Constitution is based on the constitutional machinery in the provisions found in the Constitution enlarged by the Parlia of India. While terms expressly vest ment and although it does not 'm the Parli.ament exclusively, the legislatiYe powers the whole scheme of concept that. the legislative functions of the Union will be discharged by the Parliament and by no other body. The essential of determination of the lation as a rule of conduct, are still in the Parliament or the State Legislatures as the case may be and no I take that view because of the provisions where else. of article 357 and anicle 22(4) of the Constitution of the contingency India. Article 356 prowdes against of the failure of issued, States. On a proclamation to that effect being it is provided in article 357(1) (a) that the power of the legislature of the State shall be exercisable by or under the authority of the Parliament, and it shall be compe tent for the Parliament to confer on the President the power of "and to authorise the President to delegate, subjec~ to impose th~ such conditions as he may to be powers so conferred specified by him in as follows :-"For Parliament, or for the President or other authority in whom such power to make laws confer is vested under sub-cl. ring powers and imposition of duties, conferring of powers and upon the Union or officers and authorities thereof." It was contended that on the breakdown of such machin ery authority had to be given to the Parliament or the President, firstly, to make laws in respect of subjects on which the State Legislature alone could otherwise make laws and, secondly, to empower the Parliament or the President to make the executive officers of State Government to act in accordance with the which the Parliament or the President may pass in this purpose such emergency. the word "to delegate" is used. argument is sound. Sub-clause (2) relates to the power think fit to to any other authority legislature of the State to make imposing duties, or authorising It was argued that for that behalf." Sub-clause I do not to make (a), (b) S.C.R . SUPREME COURT REPORTS 797 .of the President to use the State executive officers. But under clause (a) Parliament is given power to confer on the President the power of the legislature of State to make laws. Article 357 (1) (a) thus expressly gives power to the Parliament to authorise the Presi dent to delegate his legisla#ve powers. If powers of legis lation include the power of delegation to any authority there was no occasion to make this additional provision in the article at all. The wording of th'is clause there fore supports the contention t~at normally a power of legislation does not include the power of delegation. 1951 In re The Delhi Laws Act, 1912, etc. Kania C. J, that, Article 22(4) again is very important in this connec tion. lt deals with preventive detention and provides that no law shall be valid which will permit preventive detention of a person for a period over three months, un less the conditions laid down in article 22 ( 4) (a) are com plied with. The exception to this is in respect of an Act of the Parliament made on the conditions mentioned in article 22( 4) (b ). According to the Parliament has to pass an Act consistently with the provisions of article 22(7). The important point is that in respect of this fundamental right given to a person limiting the period of his detention up to three months, an exception favour of the Parliament by is made in the article. It appears to me a violation of the provisions of this article on rights Parliament having legislation the power terms of article 22(7) has within the power to delegate that right in favour of the executive govern ment. · In my opinion, therefo~e the argument un<ler the Constitution of 1950 the power of legislation carries · with it the power of delegation, in the large sense, as contended by the Attorney-General cannot be accepted. suggest to make a fundamental Having regard to the position of the British Parlia ment, the question whether it can validly delegate its legislative functions .cannot be raised in a court of law .. 'Therefore that the British Parliament has delegated legislative powers it docs not follow the power of delegation is recogni_s.ed in · law as neces in the power of legislation. Although sarily included from . the fact 19~1. In re 71ie De/hi LAlws Act, 1912, etc. X.nlo C. J. 798 SUPREME COURT REPORTS [1951J that under the decisions laying down that once a legislat'ive functions ? I am unable in the Constitution of India there is no express separa tion of powers, it 'is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass ·laws. Is it then too much the Constitution the duty to make to say laws, the duty to exercise its own wisdom, judgment and patriotism in making laws is prlmarily cast on the legislatures ? Does it not imply that unl'ess it can. be the Constitution, gathered from other provisions of other bodies, executive pr judicial, are not intended to discharge to which our attention has been legislature observes drawn as the procedure prescribed for passing a bill into an Act, it becomes. a valid law, unless it is outside the Legisla tive Lists iri the Seventh Schedµle prescribing its res pective powers. I do not read articles 245 and 246 as covering the question of delegation of legislative powers. In my opinion, on a true construction of articles 245 and 246 and the Lists in the Seventh Schedule, construed in the 'light of the judicial decisions mentioned above, legislation delegating legislative powers on some other law on any of the subjects or entries bodies is not a It amounts mentioned in the Legislative Lists; to a law which states that instead of the legjslature passing the entries, it cgnfers law.s on any subject ·covered by on ·the body mentioned in the legislation the power to law and make a rule of lay down the policy of conduct binding on the persons covered by the law. As a result of considering all these decisions together it seems to me that the legislature in India, Canada, Aus legislative tralia and the U.S.A. has to discharge its functions, i.e., to lay down a rule of' conduct. In doing so it may, in addition, lay down 'i:ondinons, or state facts which on being fulfilled or ascertained according the decision of another body or the executive authority, the lc; gislation may beconie applicable to a particular area· This is described as conditional lation. The legislature may also, in laying down the rule of conduct, express itself generally if the conditions and circumstances so require. The extent of S.C.R. SUPREME- COURT REPORTS ·specific and detailed lines of the rule of conduct to be laid down may vary according to the circumstances or exigencies, of each case. The result will he that if, owing the legislature to unusual circumstances or exigencies, rules or regula does not choose to lay down detailed tions, left to another body which is then deemed to have subordinate legislative powers. that work may be 1951 In re The Delhi laws .A.ct, 1912, etc. Kania C. J. the Reference. Having regard these small areas It • may be noticed the occupation of territories were acquired and in the distinction. noticed above legislative functions between the power of delegation of and the authority to confer powers which enables rules to the power to make regulations or donee of bring· into effect or operation the law ·and the power of the legislature to legislation, I shall inake conditional three specific questions men proceed to consider tioned occasions to make legislation of the type covered by the three sections mentioned in the three questions began in the early stages of India where small bits of respect of which there was no regular legislative body. It was thought convenient to apply to legislature in conti which were made by competent guous areas. to avoid inconvenient and setting up a sometimes costly, machinery of legislation for the small area. Nor might it have been considered possible for the Governor-General in Council to enact laws for the day to day administration of such bits of territory or for all their needs having regard to different Icxal condi tions. As local conditions may differ to a certain extent, lt '.lppears t& have been considered also convenient to confer powers on the administrator to apply the either in whole or in part or restrict its operation even to a limited portion of such newly acquired area. This aspect of Act XXII of 1869 discussed in The Queen v. Burah(1). Under section 22 of the Indian Councils Act of 1861, in Council was given' power 'to the Governor-General make laws for all persons and for all places and things whatever within British India. The Province of Delhi was carved out of the Province of Punjab and was put That practice was adopted separate, sometimes is prominently noticed legislation {I) SI. A. 178. 1951 Jn re TAe De/Al Laws Act, 1912, etc. Kania C . .T. 800 SUPREME COURT .REPORTS [1951] the Governor-General in Council under a Chief Commissioner and by section 2 of Delhi Laws Act the laws in force in the Punjab con tinued 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 late was in in his legislalive capacity. T~e first question as worded has to be answered according to the powers and position the legislature in 1912. Section 7 of the Delhi Laws .(\ct 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 the date of such notification, i-e., :r British India, at ilOt necessarily in the Province law whic\i was in force of Punjab only, from which the Province of Delhi was carved out, but any Central or provincial law in force in any. Province. Again, is given power to extend any such law with such restrictions and· modifications as it thinks fit. Moreover it enables the Provincial Government to extend an Act which is in force "at Those words therefore permit extension of future laws which may be passed either by the Central or any Pro\rinciaI legislature, also with such restrictions and modifica tions as the Provincial Government may think fit. At this stage, sections 8 and 9 of Act XXII of 1869 under which powers were given to The Q11een v. Burah(') may be compared. They per mitted the extension of Acts whieh were or might be (legislative) made by the Governor-General in Council or tlie Lieut.-Governor, both of whom were the com petent leg'islative authorities for the whole area under the administrative the Lieut.-Governor. those Acts. The power was confined to extend only over the area specified in Act XXII of 1869, although that area was declared by Act XXII of 1869 as not the Province, unless the area subject was specifically mentioned in the particular Act. On the date of such notifieation." the Lieut.-Governor the Government· jurisdiction of laws of to the (I) SI.A."!78. 1951 In re The Delhi Laws Act, 1912, etc. Kania C. J. • S.C.R. SUPREME COURT REPORTS 801 that decision far as the authority of section 7 of the Delhi Laws Act gives power to the exe cutive (Central) Government to extend Act~ passed by the Central Legislature to the Province of Delhi, the. same may be upheld. therefore, so The question then legislatures according to remain in respect of the power' of the executive government to extend Acts of other legislatures (with or without restrictions or Provincial the Chief Commissioner's Province. modifications) these Acts the Central It is obvious that in respect of Legislature has not applied its mind at all. It has . not considered whether the Province of Delhi requires the those Acts, as necessary rule of conduct laid down in or beneficial for the welfare of the people of the Pro vince or for its government. They ar~ passed by other their needs and Provincial circumstances. The effect of section 7' of the Delhi Laws Act therefore in permitting the Central Govern ment to apply such Provincial Acts to the Province the Central Legislature of Delhi is making up its mind as to the desirability or necessity of making laws on certain subjects in respect of that duty and right are conferred on Provin~ of Delhi, the question the. executive government. For example, whether a rent act, or an excise act, or what may be generally described as a prohibition act, or a debt relief act is desirable or necessary, as a matter of policy for the Province of Delhi is not considered and . decided by the Central Legislature which, in my. opinion, has that duty and function to. perform without any transferred over the Delhi Laws executive government. Act thus contains an entirely different quality of power from the quality of power conferred by sections 8 and . 9 of Act XXII of 1869. that duty; but Section 7 of instead . of reservation . that, is not All the dec'isions of the Privy Council unequivocally Indian affirm Legislature stated powers as that the legislature cannot efface itself. One may well the Delhi Laws Act has done ask, if section 7 of to create a body possessing rhe Central Legislature itself. competent It is 111 re 11ie Delhi Law• Act, 1912. c. X.onla C. J. • 802 SUPREME COURT REPORTS fl951] Ju first, regard respect of this question. The first anything else. The Privy Council decisions emphaSize two aspects m laws. whether the new body is empowered to make The second is, does the sanction llow from the legisla-. legislature or from the decision of tion made by the newly ci"i:ated body. it is obvious that in principle there is no difference if' the newly created body itself writes out on a sheet of paper different sections of an Act or states that the Act will be what is writtcr1 or printed on another clearly iden tifiable paper. Therefore if such new body says the law in Delhi will be the same as Bombay or Madras Act so and so of such and such year it has made law. Moreover it may be remembered that in doing so restrict or modify the provisions of the new body may iuch Act also. On the sanction flows clearly from the notification of the newly created body that Bombay or Madras Act so and so with such modifications as may be mentioned, will be law. That has not been the will or decision of the legislature. The legislature has not applied its miad and said "Bombay Act .............. is the law of: this Province". In my opinion, it ls futile to contend tha~ the sanction flows from the statement of the the newly created body decides or law will be what the new 1ipecilies, for that statement only body and says that we confer on it power to select a law of another province. the second aspect legislature indicates The illustrations of the extension of the Civil and judgment Criminal Procedure Codes, mentioned in the ) have to have to be considered in The Queen v. Burah ( 1 along with the fact that at that time the Governor-General in Council, in its legislative capacity, had power of legislation · over the whole of India on all subjects. The Civil and Criminal Procedure Codes were enacted oy the Central Legislature and it could have made India. But same applicable at once to having passed the laws, 'ts application may be referred to certain areas uittil the particular Provincial Government (executive) con to be made sidered it convenient it laid down a condition the whole of these Codes (I) SI. A. 178· 1951 In re The Delhi Laws Act, 1912, etc. Kania C. J. S.C.R. SUPREME COURT REPORTS 803 liked, a to exercise law passed by indivlclual area. the Criminal Procedure Code nor was applicable A Provincial Government, e.g., of Bombay, was not empowered to lay down any policy in respect of the Civil Procedure Code or authorised to select, if it Legislature of Madras for its appl.lcation to the Pro If it wanted to do so, the Legisla vince of Bombay. ture of the Province of Bombay had judgment and decision and pass the law which would It may be enforceable in 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 modifica tion, but so far only as it is necessary for the purpose. In my opinion, therefore, to the extent section 7 of Delhi Laws Act permits the Central executive govern ment to apply any law passed by a Provincial legisla the same is ultra vircs ture to the Province of Delhi, the Central the Central Legislature. To Legislature has abdicated therefore the Act to the extent is invalid. _ that extent its functions and the Province of Bombay. there was no distribution of Question 2 relates to Ajmer-Merwara (Extension of India Act, 1915, Laws) Act. Till the. Government of there was unitary government in India. By the Act of 1915, Provincial legislatures were given powers of legislative legislation but powers between the Centre and the Provinces. -That India was brought· about only by the Government of Act, 1935. Section 94 of Chief Commissioner's Provinces. Provinces of Delhi and Ajmer-Merwara. Unde.r sec tions 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 passeg under India Act as adapted by the Indian the Government of lndepend!!nce Act. Although by that Act the control of British Parliament over the Government of India that Act · enumerates include They 19SI In re The Delhi Laws Act, 1912, etc. Kania C. J. 804 SUPREME COURT REPORTS [195IJ therefore made no difference on and the Central Legislature was removed, the powers those found in of the Central Legislature were still as the Government of ·India Act, 1935. The Independence .question Act whether the power of delegation was contained in legislative power. The result is that to the extent to which section 7 of the Delhi Laws Act 'is held ultra the Ajmer-Merwara · Act, 1947, vires, sectiQn 2 of should also be held ultra vires. This brings me to Question 3, Section 2 of the Part Indian C States (Laws) Act, 1950, is passed by the Constitution of Parliament. Under article 239 of for the administration of Part C India, the powers States are all vested the President. Urider article 240 the Parliament is empowered to create or continue for any State in Part C, and adminis through a Chief Commissioner or Lieutenant Governor; specified (a) a body whether nominated or elected, or partly leg'islature nominated or partly elected, to function as a for the State, or • , (b) a Council of Advisers or Ministers. on any operation. ~t is common ground that no law creating such bodies: has been passed by the Parliament so far. Article ?46· legislative powers bet deals with the distribution of the Centre and the States but Part C States are subject Therefore outside affecting Part C States, Parliament is the sole and ex clusive legislature Ul}til it passes an Act creating a terms of article 240. Pro legislature or a Council in ceeding on the footing that a power of legislation does not c:irry with fr the power of delegation (as claimed by the Attorney-General), the question is whether sec tion 2 of the Part C States (Laws) Act is valid or not. By that section the Parliament has given power to Central Government by notification to extend to any part of such State (Part C State), with such restrictio11s and modifications as it thinks fit, any enactment which is in force in Part A State at the date of the notification. The section although framed on the lines of tbe Deihl Laws Act and the Ajmer-Merwara Act is restricted in S.C.R. SUPREME COURT REPORTS 805 reasons its scope as the executive goverrunent is empowered to extend only an Act whlch is in force in any of Part A States. For I have considered two sections . covered by Ques certain parts of that p:irt of section 2 of tions 1 and 2 ultra vires, Part C States (Laws) Act, 1950, which empowers the Central Government laws passed by any to extend Legislature of Part A State, will also be ultra vires. the Central Legislature or Parliament To the extent has passed Acts which are applicable to Patt A States, there: can .be no objection to the Central Government ext!' 1ding, if necessary, the operation of those Acts to the Province of Delhi, because the Parliament is To C01llpetent legislature extent however the Central Government to extend legislature of Part A State to the Province of Delhi, the section is ultra vires. ·the section permits for . that Province. laws made by any In view of my conclusion in respect of the first. part (Laws) . Aq, 1950, of section . 2 of. the Part C States I do not think it necessary to deal with· separately other part of the section relating to the power to repeal or amend a corresponding time being applicable to that Part C State. I must the counsel appearing Before concluding, of the Court in the help r~ndered to the Court by their all relevant materials . and putting the. same before Court in an extremely fair manner. record the appreciation learned Attorney-General the Reference have industry in collecting that all the functioning at the Legislatures, My answers to the questions are three questions are ultra sections mentioned in the· relevant dates, to the extent power is given to the Government (executive) than Acts of the to extend Acts other Central Legislature as mentioned in the judgment . . three questions which. have been the President under article 143 of the Constitution of India, depends upon the proper answer to another question which was the F AZL ALI J .-The answer referred by 19S1 In re The Delhi Laws Act, 1912,. etc. Kania C. J. Fazl Ali I. 806 SUPREME COURT REPORTS [1951] 19SI In re The Delhi Law8 Act, 1912, etc. Fi1Z/ Ali J. subject of very elaborate arguments before us and .whlch may be stated legislature which is sovereign or has plenary powers withln .field assigned to executive authority or fo another agency, and, to what extent it can do so ? legislative functions to an · if so, it, delegate its thus : Can a In dealing with this question, may be considered. They are :- three possible answers ( 1) A legislature whlch is sovereign in a particular . .field has unlim~ted power of delegation and the content of its power must necessarily delegate legislative functions ; the power include (2) Delegated legislation is perm, issible only within certain limits ; and (3) Delegated legislation i.~ not permissible at all by reason of certain principles of law whlch arc wcll known and well-recognised. I will .first consider the last alternative, but I should state that in doing so I will be using the expressions, legislative "delegated legislation," and "delegation of authority," in the loose and popular sense and not the strict sense which I shall explain later. liihited application even in One of the principles on which reliance was placed to show that legislative power cannot be delegated is said the well-known maxim, delegatus to be embodied in language means non potest delegare, which in simple that a delegated authority cannot be redelegated, or, in other words, one agent cannot lawfully appoint another to perform the duties of agency. Tills maxim however has a frequently law of contract or agency wherein invoked and limited to those' cases where the con tract of agency is of a confidential character and where authority is coupled with discretion or confidence. liquidators Thus, auctioneers, brokers, directors, and other persons holding a .fiduciary position have generally no implied authority to employ deputies or is Broom's Legal rule is so stated sub.agents. The Maxims, and many other books, and it is also stated the authority to employ the dom:tin of in a number of cases factors, ;.t • J9Sl The Delhi Laws Act, 1912, etc . Faz/ A/IJ. S.C.R. SUPREME COURT REPORTS 807 In applying the maxim to the act agents is implied. legislative body, we have necessarily to ask "who of a is the principal a,nd who is the delegator". In some cases where the question of the power of the Indian or legislature came up for consideration of the . a colonial courts, legislature was a delegate of the British Parliament by which it had this view been vested with authority to legislate. But has been rightly repelled by the Privy Council on more than one occasion, as will appear from the following extracts from two of the leading cases on the subject :- - it was suggested that such a "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can of coi. Irse do nothing beyond limits which circumscribe powers. But when acting within it is not in any sense an those limits agent or delegate of the ~Imperial Parliament, but has, and was intended to have, plenary powers of legisla tion as large, and of the same nature, as those of Parlia ment itself." : Reg. v. Burah(1). that • 'its raised by "It appears to their Lordships, however, objection thus the appellants is founded on an entire misconception of true character and position of the Provincial Legislatures. They are no sense delegates of or acting under any mandate from. the Imperial Parliament. When the British there should be a North America Act enacted ·Legislative for Ontario, and Legislature Assembly should have exclusive authority to make the Province and for Provincial purposes in laws for the matters enumerated in section 92, relation to conferred powers, not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authonty as plenary and as ample, within limits prescribed by section 92, as the Imperial Parlia its power possessed and ment in the plenitude of could bestow. Within limits of subjects and areas die Local Legislature is supreme, and has lmpedal Parliament." : Hodge v. same authority as the The Queen(2). (I) 3 App Cas. 889. (2) 9 App. Cas. 117. 808 SUPREME COURT REPORTS [1951) In re Tiie De/hi L<lws Act, 1912 etc. Faz/ Ali J. It has also been suggested by some writers that the legislature is a delegate of the people or the electors. This view again has not been accepted by some con stitutional writers, and Dicey dealing with the powers Septennial Act, states as follows :- the British Parliament with reference "That Act proves to demonstration that in a point of view Parliament is neither electors nor in any sense a It· is the sovereign state, and the Septennial · Act is at once the sovereignty." ( 1 trustee for its constituents. legislative power. in result such Parliamentary the agent of proof of standing legally ) The same learned author further observes :- "The Judges know nothing about any will of people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on. the ~round of having been passed or being kept alive in opposition to the wishes of the electors." (2) their electors, but the There can be no doubt that members of a legislature represent the majority of lature as a body cannot be said to be an agency of the electorat~ as a whole. The individual members may and often do represent different parties and different. shades of opinion, but the composite legislature which legislates, does so on its own authority or power which it derives from the Constitution, and its acts cannot be questioned by latter legislate on any particular withdraw matter. As has been pointed out by D1cey,- the electorate, nor can its power "the sole legal right of electors under the English Parliament. legal right of initiating, of sanction the legislation of Parliament."(") ·Constituticn Electors have no ing, or of repealing elect memebrs of It seems to me therefore that it will not be quite the kgislature being an agent of accurate to say (l) Dicey's: ''Law of the Constitution'', Sth.edn.,p. 4S. (2) Ibid, P· 72. (3) Dicey's ''Law of the Constituuon", 8th edn., p. 57. " S.C.R. SUPREME COURT REPORTS 809 restric its constituents, its powers are subject to tions implied 1in the Latin maxim referred to. I shall however advert to this subject again when I deal with another principle which principle 1!nddlying the maxim. is . somewhat akin 19Sl In re 71re Delhi Laws Act, 1912 etc. Faz/ AfiJ. The second principle on which reliance was placed was said to be founded on the well-known Joctrine Qf "separation of powers." It is an old doctrine which is said to have originated from Aristotle, but, as well-known, it was given great prominence by Locke and Montesquieu. The doctrine may be stated Montesquieu's own words :- regard to matters there are executive "In every government legislative; the there can be no rise, tyrannical laws, three sorts of in respect power, law of nations; and things dependent on executive in that depend on civil law ...... ·' ... When the legislative and the executive powers are united in the same person, or in the same libertr ; because body of magistrates, the same monarch or apprehensions may to execute senate should enact in a· tyrannical manner. Again, there is no liberty, legis- the judiciary power be liberty of the subject would be ltg'islative, . the life and judge would be exposed to arbitrary control; for the the executive then the legislator. Were it joined to judge might behave with violence . and power, oppression. There should be. an end of everything, were the same man or the same body, whether of the nobles or of the people, to nercise those three powers, that of enacting the public that of executing laws, resolutions, and of trying the causes of individuals." (1) from the joined with . lative and the executive. Were it ·not separated The doctrine found many enthusiasts in Ani.erica legal principle in· that and w:is virtually elevated to a country. 'Washington, in his farewell address, said :- the powers of all governments "The spirit of enroachinent tends to consolidate thus to (I) Montesquieu's Spirit of Laws. VoL I by J. v. Pritchard; 1914 in one, and cdn., 'pp. t62·3. 19SI In re Th< De/hi Laws Act, 1912 etc. Fazl Ali J. 810 SUPREME COURT REPORTS [1951] create, whatever the potism.n form of government, a real des lohn Adams wrote on similar lines as follows :- ·•it is by balancing one ot three powers against the other two that the efforts in human nature towards tyranny can alone be checked and restrained and any degree of freedom preserved."(') that "in These sentiments are reflected in States in her Constitution, adpoted the government of individual Federal Constitution the Con-. stitutions of America . . Massachusetts in 1780, provided this common wealth the legislative department shall never exercise them ; the executive and judicial powers or either of the executive shall never exercise legislative and judi cial powers or either of them ; · the judicial shall never exercise legislative and executive powers or either of them ; to the end that it may be a government of laws and not of men."(2) The Constitutions of 39 other States were drafted on similar lines, and so far as Federal Constitution of the United States was con cerned, though it does not expressly create a separation of governmental powers, yet from the three articles legislative power vests in Col)gre'\f, stating the Supreme Court and die the rule has been executive power in the President, deduced that the power vested in each branch of the Government cannot be vested in any other branch, nor can one branch interfere with the power possessed rule has been stated by by any other branch. This Sutherland J. in Springer v. Government of the Philli pine Islands(') in these words :- judicial power "It may be stated then, as a general rule the American constitutional system, expressly provided or otherwise powers conferred, either executive or inherent that unless exercise the Executive inLidental cannot the Legislature judicial power ;. (I) Vide, Works, Vol. I, P. 186. (2) Willoughby's · Constitution of m, 1616. (3) 277 S.189 at201: the United States, Vol. 1951 In re The Delhi Laws Act, 1912 etc. Faz/ Ali J. S.C.R. SUPREME COURT REPORTS 811 cannot exercise either Judiciary cannot legislative power." legislative or exercise either judicial power ; executive or that the rightfully exercise itself''{1). the administrative process, the delegation · of It was however soon rule against delegation of From the rule so stated; the next step was to dedilce legislative power which the rul~ against delegation of has so often been stressed in the earlier American realized decisions. absolute legislative -power could not be sustained in practice, and as early as 1825, Marshall C.J. openly stated rule was limitations and asserted that Congress "may subject to certainly delegate to others powers which the Legis. In course of lature may time, notwithstanding the maxim against delegation, the extent of delegation had become so great that an American writer wrote in 1916 that "because of the the old doctrine rise of legislative power has prohibiting virtually fight''.(2) in one sense an over-statement, because the American Judges have never ceased to be vigilant to check any undue or excessive authority being delegated to the executive as will appear from the comparatively recent decisions of the American Supreme Court in Panama Refining Co. v. Ryan(8 ) and Schechter Poultry Corp. v. United States(')· In Indus. the latter case, it was held trial Recovery Act, in so far as it purported to confer upon the President the authority to adopt and make effective codes of fair competition and impose the same upon members of each industry for which such a code is approved, was void because it was an unconstitu tional delegation of legislative power. Dealing with the matter, Cardozo J. observed as follows :- the field and given up retired This the National ,) "The delegated power of legislation which has this code is not canalized within found expression in {I) Wayman v. Southard(l82S)23 U.S. 43. (2) 41 American Bar Assen. Reports, 356 at 368. (3) 293 U.S. 388. (4) 295 U.S. 49!5. 6-3 S.C India/68 1951 The Del/ti ltzWs Act, 1912 etc. Fazl A/iJ. 812 SUPREME COURT REPORTS [1951] It is wiconfined banks that kept it from overfl<>Wing· and vagrant. . . . . . . . . . Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect is a roving inquire into evils upon discovery to commission correct them ...... Tllis is delegation running riot. No such plenitude of power is capable of transfer."(') upheld legislation the s<><alled delegated The fact however remains that the American courts instances, and chere is now a wide gulf numerous between the theoretical doctrine and its application practice. How numerous are the exceptions engrafted on the rule will appear on a reference to a very elabo rate and informing note appended to the report of case of Panama Refining Co. v. Ryan in 79, Lawyer's Edition at page 448. In this note, the learned authors delegation upheld in America under the following 8 heads, with numerous sub-heads :- instances of classified

#1. Delegation of power to determine facts or conditions on which operation of statute is contingent.

#2. Delegation of non-legislative or administrative fwictions.

#3. Delegation of power to make administrative rules and regulations.

#4. Delegation to municipalities and local bodies· 5. Delegation by Congress territorial legislature or commission.

#6. Delegation to pnvate or non-official persons or corporations.

#7. Vesting discretion in judiciary. 8. Adopting law or rule of another jurisdiction. The learned American Judges in laying down excep time, have fc:W of which may be to the general rule from offered various explanations, a quoted as samples :- (I) 295 u.S.49S at SS!. • S.C.R. SUPREME COURT REPORTS 813 " ...... however we may disguise it by veiling words we do not and cannot carry out .the distinction between executive action with mathematical legislative and precision and into watertight divide the compartments, were it ever so desirable to do so, which that it is, or that the Consti I am far from believing [Per Holmes J. in Spinger v. The tution requires." Government of Philippine lslatzds(1)] branches 1951 In re Tire Delhi Laws Act, 1912 etc. • Fazl Ali J. " ...... too. much effort to detail and particularize, so as to dispense with the administrative or fact-finding assistance, would cause great confusion in laws, and would in both provision Indus- and execution." trial Commission(2)] [Mutual Film Corporntion v. result in laws deficient . "If the legislature were strictly required to make provision for all the minutiae of it woµld regulation, in effrct, be deprived of the power to enact effective legislation on subjects over which it has undoubted power." "The true distinctiqn ...... is this. The legislature .cannot delegate its .power to make a law; but it can make a law to delegate a power to detcrmiqe some things upon which the law makes, or fact or state of intends its own action depend-To deny this would be to stop the wheels of government·"(3). to make, "The true distinction is between law which necessarily the delegation of ?Qwer to make the involves a discretion as to what it shall be, and conferring authority or discretion as to be the law. The exercised under and first cannot be done; to the latter no valid objection (Per Ranney J. in Cincinnati W. & can be made." Z. R. Co. v. Clinton County Commissio11ers(4) ]. in pursuance of its execution, (1) 277 U.S. 189. (2) 236 U.S. 230. (3) Locke's Appeal, 1873 72 Pa. 491. (4) I Ohio St. 88· 1951 The Delhi L•ws Act, 1912 etc. .. Faz/ A/;J. 814 "Half [1951] SUPREME COURT REPORTS .... ·-· ..... in the the statutes on our alternative, depending on the discretion of some person the duty of deter is confided or persons to whom mining whether the proper occasion exists for executing the exercise of them. But such discretion is [Moore v. Reading( 1 it cannot be said the making of books are law." ) ] "Congress may declare its will and, after fixing a primary standard, devolve upon administrative officers the power to fill up the details by prescribing a~ trative rules and Shreflt:port Grain & E. Co.( 2 [United States v. regulations." )] standards, while practicality whieh will flexibility and ''The Constitution has the Congress never been regarded as denying resources the necessary enable ii to perform .its functions in laying down policies and establishing strumentalities the making of subordinate rules within the prescribed the determination of facts to apply. Without capacity to give authorizations of that legislative sort, we should have power whieh [Per Hughes C. J· t:Xertion would be but a futility." in Panama Refining Co. Ryan(')] in many circumstances calling for the policy as declared by the the anomaly of a legislature is to selected leaving limits, .... '' ...... . ''This is .qot to say that three branches are not c<>-0rdinate parts of one government and that eaeh in the field of its duties may not invoke the action of invoked the two other branches in so far as the aetion shall not be an assumption of the constitutional of action of another branch." /. W. Hampton fr. & Co. v. U.S. (')] [Per Taft C.J. I have quoted these extracts at the risk of encumber ing my opinion for 2 reasons : firstly, because (I) 21 Pa. 202. (2) 287U.S. 77. (3) 293 U.S. 388· (4) 276 U.S. 394. S.C.R. SUPREME COURT REPORTS 815 prevalence of notwithstanding doctrine of separation of powers in America, the rule legislative power is by no means against delegation of an inelastic one 1n ::ountry, and many eminent trend to it Judges there have so as to bring it in line with the needs of the present day administration, and secondly, because they show that the rule against delegation is not a necessary corollary from the doctrine of separation of powers. tried to give a practical 1951 In re 'The Delhi Laws Act, 1912 etc. Fazl A/iJ. is also In that case, objection . that the basis of It is to be noted that though the principle of separa the ·Australian tion of powers delegation of Constitution, legislative power was not permissible because of the Constitution distribution of powers contained has been raised in that Commonwealth only in a cases and in all those cases it has been negatived. The first case in which this objection was raised was Baxter v. Ah Way(')- the validity of section 52 of the Cmtoms Act, 1901, was challenged. That section after enumerating certain prohibited imports provided importation of which may be prohibited by proclamation." Sec that "the power of .tion 56 of prohibiting authorise prohioition subject to any specified condition or restric tion and goods imported contrary to any such condition or restriction The ground on which these provisions were challenged was rliat they amounted to delegation of legislative power which had been vested by the Conslitution Federal Parliament, Griffth C. J. however rejected the contention and in doing so relied on Queen v. Burah(2) and other cases, observing :- the Act importation of inclusion of "all goods ,~hall be prohibited imports." provided goods· •· ............ unless the legislature is prcpaml to lay into the down at once and for all future as they may think fit, a list of prohibited goods, they must have power to make a prohihition depending upon a comlitiop, and .condition may be the discovery of some coming into existence or time, or for so far (1) (1909) 8 C.LR. 6~6. (2) 3 App. Cas. 889. 816 SUPREME COURT REPORTS [1951] 1951 In re The Deihl Laws Act, 1912 etc. Fozl All I. the liberty ........ And if that fact is to be the condition upon to depend, there must be some means of ascertaining that fact, some person with power Governor-in-Council ascertain and declare the fact." to ascertain authority import tile goods is it; and appointed The other cases in which a similar objection was taken, are :-Wekbach Light Co. of Australasia Lttl. v. The Commonwealth('), Roche v. Kronheimer(2), and Victorian Stevedoring and General Contracting Co. Pty. Ltd. antl Meak, es v. Dignan("). In the last mentioned case in which the matter has been dealt with at great length, Dixon J. observed thus :- time has passed " .... the constitutional separate organs of government, an operation which confined . the the Parliament so as the Executive an to restrain · it from authority of an essentially legislative character."(')- for assigning powers legislative power to distribution reposing In England, the doctrine of separation of powers has exercised very little influence on . the course of judicial · decisions or in shaping the Constitiltion, notwithstand· 'ing the fact that distinguished writers like Locke and Blackstone strongly advocated it in the 17th and 18th centuries. Locke in his .treatise on Civil Government wrote as follows :- "The legislature cannot .power of making laws to any other hands ; for it being a dele gated power from the people, they who have it cannot pass it over to others. ( § 141). transfer Blackstone endorsed this view in these words : Wherever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty."("). . Again, Montesquieu, when he enunciated the doctrine thought that it represented the . of $cparation of powers, (~;.i\9~··22C.J,.JL26&. (2)(19%i)'ttc.J..R. 329. · (5) Comme11tarics on the Lawaoi England, 1765. (3) (1931) 46 C.L.R. 73. <"Hbid., P• 100. I 1951 In re The Delhi Laws Act, 1912 ere. FrJZi Ali J. S.C.R. SUPREME COURT REPORTS 817 so-called the mutual ·of America. the emergence of judiciary, whereas the United States quintessence of the British Constitution for which he had great admiration. The doctrine had undoubtedly attracted considerable attention in England in the 17th and 18th centuries, but in course of time it came to there from that it had have a very different meaning In the acquired in Un'ited States, the emphasis was on three departments of Government. dependence of the the doctrine means only the independ But, in England, ence of the Cabinet system forms a link between the executive legislature. How the Cabinet system works ~d the differently non-parliamentary system which obtains in the United States, may be In the United States, the execu stated very shortly. _dve power is vested in the President, to whom, and not to the Congress, the members of the Cabinet are personally responsible and neither the President nor the members of the Cabinet can sit or vote in Congress, and they have no responsibility· for initiating bills or seeking their passage through Congress. In England, the Cabinet is a body consisting of members of Parlia ment chosen from the· party possessing a majority in the House of Commons. It has a decisive voice in the legislative activities of Parliament and initiates all through one or other of the legislation the important Ministers, with supreme in. that it can make or unmake Government, the Government once in power tends to control the Parllament." the result that "while Parliament It seems to me The conclusion which I wish to express may now be stated briefly. though the rule against delegation of legislative power has been assumed in America to be a corollary from the doctrine of sepa ration of powers, it is strictly speaking not a necessary or ~nevitable corollary· The extent to which the ha-; been relaxed in America and the elaborate explana tions which have been offered justify departure rule, confirm this view, and it is also sup from the the trend of decisions in Aus ported by the fact that its Constitution the fact tralia, notwithstanding 19Sl In re The Delhi Law• Act, 1912 etc. Faz/ Ali J. 818 SUPREME COURT REPORTS [1951] theotttically based on the principle of is at that ·the principle does not separation of powers, is stand in the way of delegation in suitable circumstan i:es. The divisic>n of the powers of Government is now a normal feature of all civilised constitutions, and, as ponited out by Rich J. in New South Wales v. Com :all British monwealth(1), the United States, rommunities"; yet, nowhere iuelf it forbids It seems to me that delegation of legislative power. the American jurists have gone too far in holding that the rule against delegafion was a direct corollary from the separation of powers. except it has been 1held "well-known that by I will now deal with the tlilid principle, which, in my opinion, is the true principle upon which the rule It has been stated against delegation may be founded. in Cooley's Constitutional Limitations, Volume I at page 224 in these words :- legislature located the authority, the power . conferred· upon the "One of the settled maxims in constitutional is, make laws cannot be delegated by that department to any other body or authority. Where the sovereign there it pow et of the State has must. remain ; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this hlgh prerogative has been intrusted responsibility by choosing cannot relieve itself of other agencies upon which the power shall be devolved, judgment, wisdom, and patriotism of any other body for those to which alone tliis sovereign the people have seen trust." it substitute to confide The same learned author observes thus in his well (4th Edition, knowil: book on Constitutional Law page 138) :- legislative "No department of rity, the power, either generally or specially, another the government, or to any other auth1> to enact body can delegate (I) 20 C.L:R. 54 at 108· S.o.R. SUPREME COURT REPORTS 819 laws. The reason is. found in the very existence of pre!ogafive has been its own powers. This high intrusted 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." 1951 Jn rt 711e. ·Delhi Lmv1Act,1912 etc. Fazl .Ali/. legislature cannot . abdicate its This rule;j1,1 a broo<,l sense involves the principle underlying the' ·1Dat:im, delegatus non potest delegare, but it is apt to be · misi, mderstood. and has been mis In my judgment, all that it _means is that understood. legislative functions and it cannot efface . itself and set up a parallel legisla ture to discharge the primary duty with which it has been entrusted. This rule has been recognized . both in America and in England, and Hughes C. J· has enun ciated it in these words :- ''The Congress mainfestly abdicate, or to transfer to others, tive funct'ions with which it is thus vested."(1). is not permitted the essential legisla The I.Patter is again dealt with by Evatt J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Neakes v. Dignan(2), in these words :- 'abdicate' therefore, "On final analysis the Parliament of the Commonwealth is not competent to powers of legislat'xon. This is not because Parliament is bound to perform any or all of its legislative powers or £unction$, for it may clect not to do so ; and not because the doctrine of · separation of powers prevents Parliament from granting authority to other bodies to make laws or bye-laws and legislative power, for it does so 'in almost every statute ; but laws ·passed by because each and every one of Parliament must answer the description of a law upon one or more of the subject-matters stated in the Consti tution. A law by which Parliament gave all its making merely because mentioned." to another body would be bad thereby exercise it would fail authority to pass law- · (1) 293 U.S. 421. (2) 46 Com. L.R. 73 at 121, 1951 In re The Delhi Laws Act, 1912 etc. Far! A/iJ, 820 SUPREME COURT REPORTS (1951] I think that the correct legal position has been com prehensively summed up by Lord Haldane in Jn re the Initiative and Referendum Act(') :- intact, seek the "No doubt a body, with a power of to it so ample as legislation on the subjects entrusted that enjoyed. by a Provincial Legislature in Canada, could, while :wistance preserving its own capacity of subordinate agencies, as has been done when in Hodge v. The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact 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." regulations What constitutes abdication and what class of cases will be covered by that expression will always be a ques tion of fact, and it is by no means easy to lay down any comprehensive formula to define it, but it should be the rule against abdication does not recognized prohibit the Legislature from employing any subordi nate agency of its own choice for doing such subsidiary legislation effec acts as may be necessary to make its tive, useful and complete. Having considered the three principles. which are to negative delegation of powers, I . will now proceed to consider the argument put forward by learned Attorney-General that the power. of delegation is implicit ln the power of legislation. This argument legisla is based on the principle of sovereignty of the ture within its appointed field. Sovereignty has been variously sometimes sovereignty. One of sovereignty and political writers describes the power to make laws and enforce them by means of coercion it cares to employ, and he proceeds to say sovereign, i.e., the person or persons who according to the law of the land legislate and administer the Govern ment, is the King in Parliament, whereas the political constitution writers, between in England distinction described it as (I) [1919) A.C. 935 at 945. 1951 In re The Delhi Laws A.ct, 1912, etc. Faz( A.Ii I. s.c.R. SUPREME COURT REPORTS 821 or the constitutional sovereign, i.e., the body of persons in whom power ultimately resides, is the electorate or the voting public(1). Dicey states that the legal con ception of sovereignty simply means the power of if the making unrestricted by any term "sovereignty" the sovereign power under the English Constitution is the Parliament. The main attribute of such sovereignty is stated by him in these words :- legal limit, and 'is thus used, "There is no law which Parliament cannot change (or to put the same thing somewhat differently, funda· mental or so-called constitutional laws are under our Constitution changed by same manner as other laws, namely, by Parliament acting in its ordinary legislative character) and any to be enactment void." passed by . it cannot be declared the same body and in laws and According to the same writer, the characteristics of a non-soverefgn law-making body are :-(1) the exis tence of laws which such body must obey and cannot change; (2) the formation of a marked distinction laws ; and fundamental between ordinary (3) the existence of some person or persons judicial or pronounce upon the otherwise, having authority validity or constitutionality of laws passed by such law-making body. Dealing with Indian or the colonial legislature, the learned writer characterizes it legislature and proceeds to observe as a non-sovereign to make its authority completely subordinate to and as much dependent upon Acts of the power of London . and North Parliament as is Western Railway Co. to make bye-laws. This is un doobtedly an overstatement and is certainly not appli Indian Parliament of today. Our present cable to the Parliament, though it may not be as sovereign as Parliament of Great Britain, is certainly as sov~eign as the Congress of the United States of America and the Legislatures of other independent countries having a Federal CQnstitution. But what is more relevant is as (I) Modern Political Constitutions, by Strong. 1951 In re The Delhi l.Aws Act, 1912, etc. Faz/ Ali J. 822 SUPREME COURT REPORTS [1951] legislatures, says that Dicey himself, dealing with to our purpose is that "they colonial and other similar their own sphere copies of the are in short within they are within their own sphere Imperial Parliament, sovereign bodies, but their freedom of action is con trolled by their subordination to the Parliament of the United Klngdom.'' undoubtedly These the Legislative CounciL of 1912 which applied passed the Delhi Laws Act, 1912, and they apply to the present Parliament also with this very material freedom of action is no · longer modification controlled by subordination to the British Parliament but is controlled by the Indian Constifution. remarks that its Indian and colonial the Privy Council in England At this stage, it will be useful to refer to certain cases decided by which the question of the ambit of power exerc.ised by legislatures directly arose. th~ The leading case on the subject is Queen v. Buran('), which has been cited by this court on more than one occasion and has been accepted as good authority. In that case, the question arose whether a section of Act No. XXII of 1869 which conferred upon the Lieutenant Governor of Bengal the power to determine whether a law or any part thereof should be applied to a certain territory was or was not ultra vires. While holding impugned provision was intra vires, the Privy Council made certain observations wlllch have been quoted again and again and deserve to be quoted once that the Indian Legislature was more. Having held the Imperial Parliament and hence not a delegate of the maxim, delegatus non potest delegare, did not apply (See ante for the passage dealing with this point), their Lordships proceeded to state as follows :- "Their Lordships agree· that the · Governor-General m Council could not by any form of enactment, create in India, and arm with general legislative authority, a new legislative power, not created or authorized by the Council~ Act. Nothing of that kind has, in their Lordships' opinion, been done or attempted in (I) 5 I.A. 178. 1951 Tlte Delhi IAws Act, 1912, etc. Faz/ A.Ii J. S.C.R. SUPREME COURT REPORTS 823 legislation, The present case. What has · been done this. in the Governor-General in Council has determined, due and ordinary course of to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices to be appointed by and responsible to the Lieutenant-Governor of Bengal, that change Lieutenant-Governor to say at what time shall take place ; and also enabling him, not to make what laws he pleases for that or any other district, but to apply by public notification to that district any. law, or part of a law, which either already was, or from legislative time to to his authority, 'in government'." time might be, in force, by proper leaving . it to territories subject Then, later they added :- (in legislation exist as judgment has been to Imperial or in a provincial their Lordships' "The proper Legislature has exercised the result ment as to place, person, laws, powers ; and of that legislate conditionally as things. The conditions having been ful to all these is now absolute. Where plenary filled, the legislation to particular subjects, powers of legislature, whether in an judgment) be well they m'ly exercised, either absolutely or conditionally. Legis. lation, conditional on the use of particular powers, or limited discretion, entrusted by on the exercise of a the Legislature to persons in whom it places confidence, is no uncommon thing ; and, in many circumstances, it may be highly convenient. The British Statute cannot be Book abounds with examples of it ; and it that the Imperial Parliament did not, when supposed constituting legislation as with'in the scope of kind of conditional conferred." the Indian Legislature, contemplate legislative powers which it from The next case on the subject is Russell v. The the Canadian Temperance that it was Queen(1). Act, 1878, was challenged on the ground In that case, (1) 7 App. Cas .829. 1951 /nu The Del/JI Lilw• Act, 1912, Fozl AIU. 824 SUPREME COURT REPORTS [1951] 1dtr11 tlires the Parliament of Canada. The Act was to be brought into force in any country or city if on a vote of the majority of the electors of that county the Governor-General or city favouring such a course, in Council declared the relative pan of the Act to be It was held by the Privy Council that this in force. to a delegation of legislative provision did not amount power to a majority of the voters in a city or county. The passage in which this is made clear, runs as follows :- legislative powers whatever. legislation on the whole . "The shon answer to this objection is that the Act does not delegate any It itself contains within matters with whtch it deals. The provision that cenain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on itself these persons power enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legisla tion of this kind is in many cases convenient, and is legislate cenainly not unusual, and the power so cannot be denied to the Parliament of Canada when the subject of legislation Is within its competency ...... If author'ity on it will be this point were necessary, found in the case of Q11een v. Burah, lately before this Board." legislate, Parliament The same doctrine was laid down in the case of Hodge v. The Q11een(1), where the question arose as to whether the legislature of Ontario had or had not power of entrusting to a local authority-the Board of Commissioners-the power of making regulations the Liquor Licence Act, 1877, which with respect to among other things created offences for the breach of thereto· regulations and the Ontario Legislature Their Lordships held that the Legis had that power, and after reiterating lature which passed the Act was not a delegate, they observed as follows :- penalties annexed "When that there should be a the British North America Act enacted legislature for Ontario, and that (I) 9 App. Cas. 117. 1951 In.re The Deihl Lows ..fct, 1912, etc. Fozl ..f/IJ. S.C.R. SUPREME COURT REPORTS 825 laws for in rdadon its ·legislative assembly should have exclusive autho the Proviru:e and for provincial rity to make purposes the matters enumerated section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of Imperial Parliament, but authority as plenary and as limits prescribed by section 92 as ample within · the Imperial Parliament in the plenitude of its powers limits of supreme, Imperial the Dominion, the enactment, possessed and could bestow. Within subjects and and has Parliament, or confide resolJJ.tions as to subjects specified and with the object of carryjng operation and effect." legislature is authority Parliament of to a municipal creation circumstances institution or body of bye-laws to make the enactment authority the collector is the collector or Another case which may be usefully cited is Powell v. Apollo Candle Co.(1). The question which arose in that case was whether section 133 of the Customs Regulations Act of 1879 of New South Wales was or · legislature. That sec was not ultra vires the colonial that "when any article of merchandise tion provided then unknown to imported, which, in the commissioners, the opinion of is apparently a substitute for any known dutiable article, or is apparently designed to evade duty, but possesses properties in the whole or in part which can be used or were intended to be applied for a similar purpose as such dutiable article, it shall be lawful for the Governor to direct that a duty be levied on such article at a rate to be fixed in proportion to the degree in which such unknown article approximates in its qualities or uses to such dutiable article.'' Having repelled legislature the colonial was a delegate of the Imperial Parliament and having held that it was not acting as an agent or a delegate, the Privy Council proceeded to deal with the question raised in the following manner :- the contention (1) 10 App. Cas. ~82. 1951 The Deihl LoWs Act, 1912, etc. Faz/ AllJ. 826 SUPREME COURT REPORTS [1951] that the it. But "It is argued The Legislature has not parted with tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose the duties levied under the Order in Council are really levied by the order is the authority of the Act under which issued. perfect control over the Governor, and has the power, of course, at any moment, of withdrawing· or altering they have entrusted to him. Under the power which their Lordships are of opinion these cirmumstances judgment of the Supreme Court was wrong that the the Customs Regulations in declaring section 133 of Act of 1879 to be beyond the power of th:e Legislature." Several other cases were cited at the Bar in which (which would be non the supremacy of a legislature sovereign according to the laid down by Dicey) within the field ascribed to its operation, were affirm instances is unnecessary ed, bur to multiply illustrative of that principle. I might however quote the pronouncement of the Privy Council in the com paratively recent case of Shannon v. Lower Mainland Dairy Products Board('), which rnns as follows:- that: "The third objection it is not within the the Provincial Legislature to delegate so powers of called legislative powers to the Lieutenant-Governor in . Council, or to give him powers of further delegation. This objectiQll appears to their Lordships subversive of the rights which the Provincial Le~slature enjoys while dealing with matters falling witliin the classes the constitution has to which of subjects in relation granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enumerate the innumerable occasions on whi, ch Legislatures, Pre> vincial, Dominion and entrusted various persons and bodies with similar powers those contained in this Act." lmperial, I must pause here to note briefly certain important the cases extracted from •rinciples which can be (I) (1938] A.C 708 at 722. 1951 Tfie Deihl Laws Act, 1912, etc. Fazl Ali/; S.C.R. SUPREME COURT REPORTS to· carry the principle legislation and without that the Privy Council never the Privy Council which I have so far decided by cited, apart from that the Indian and colonial legislatures arc supreme in their own field and the maxim, delegatus non protest delegare, docs not apply to them. In the first place, it seems quite to commit to the statement that delegated legislation themselves was permissible. It was easy for them to have said so and disposed of the cases before them, but they were at pains to show that the provisions impugned before them were not instances of delegatio51 of legislative authority but they were instances of conditional legis lation which, they thought, the legislatures concerned were competent to enact, or that the giving of such authority as was entrusted in some cases to subordinate agencies was ancillary "an attempt to provide for varying details and machin them out might become oppressive or absolutely fail." They als0 laid down: (1) that it will be not correct to describe conditional legislation and other forms of legislation which they were called upon to consider in several cases which have been cited as legislation through another agency. Each Act or en actment which was impugned before them as being delegated legislation, contained within itself the whole kgislation on the matter which it dealt with, laying follow on the condition being fulfilled ; (2) that legis lative power could not be said to have been parted w.ith if the legislature retained its power intact and could whenever it pleased destroy the agency it had created and set up another or take the matter directly into its own hands ; (3) that the question · as to the extent to which the aid of subordinate agencies could be sought by the legislatures and as to have long they should continue them were matters for each legislature and not for the court of law to decide; (4) that a legis lature in committing important regulations to others docs not efface itself; and (5) that the legislature, like the Governor"General in Council, could not by any form of enactment create, and arm with legislative 7-3 S. C. India/68 the condition and everything which was • 1951 Jn rt Th< De/Ai Lows Act, 19]2, etc. Faz/ A/iJ. 828 SUPREME COURT REPORTS (19'51] authority, a new authorised by to wbich Governor-General in Council) owe' its existence. legislative power not created or (the the Councils Act if the that sense if we apply legislative authority. But if legislative power with all [ have already indicated that the expressions "dele gated legislation" and "delegating legislative power" are sometimes used in a loose sense, and sometimes in a strict sense. These expressions have been used in the various treaties or the loose or popular sense reports dealing with the so-called delegated legislation; to the facts before the there can be no doubt that eyery one Privy Council, of the cases would be an instance of delegated legisla tion or delegation of Privy Council have throughout repelled the suggestion that the cases before them were instances of delegated legislation or delegation of legislative authority. There can be no doubt legislature completely abdicates its functions and sets up a parallel legisla ture transferring all its power to it, that wou Id un doubtedly be a real instance of delegation of its power. In other words, there will be delegation in the strict the Privy tranSferred Council have repeatedly pointed out that when the legislature retains its dominant power intact and cai;i whenever it pleases destroy the agency it has created and set up another or take th" matter directly into its own hands, it has not paltcd with its own legislative power. They have also pointed out that the act of the subordinate authority docs not possess legislative attribute, if they efficacy of the act done by the subordinate authority but it is not derived from from the legislature by which the subordinate autho rity was entrusted with the power to do the act. In some of the cases to which reference has been made, the Privy Council have referred . to the nature and principles of legislation and pointed out that condi tional legislation simply amounts to entrusting a limited discretionary authority to otherS, and that to seek the aid of subordinate agencies in carrying out the object of the legislation is ancillary to legislation and properly to another authority. But its attributes S.C.R. SUPREME COURT REPORTS 829 the scope of lies within the powers whkh every legislature must possess to function effectively. 'Fhere is a mass of literature in America also about the so legislation, but if the judgments of called delegated the eminent American Judges are carefully studied, it will be found that. though in some 'cases they have used the expression in the popular sense, yet in many cases they have been as careful as the Privy Council in laying down the principles and whenever . have upheld any provision impugned before them on the ground that it was delegation of legislative authority they have rested their conclusion upon fact that there was in law no such delegation. 19St J'lte Delfil Lltws. Jkt, 1'912, .ete. Fazl AliJ. The the proposition involves as part of learned Attorney-General has relied on authority of Evatt J. for that "the true nature and scope of the legislative power of the Parliament its content power to confer law-making power upon authorities other than Parliament itself'(1). It .is undoubtedly true that a legislature which is 5overeign within its own sphere must necessarily have very great freedom of action, to me that in strkt . point of law the but it seems dictum of Evatt J: is not a precise or an accurate statement. The first question which it raises is what is meant by law-making power and .whether such power in the true sense of the term can be delegated at all. it raises is that on, ce it is Another difliculty whkh held as a general proposition that delegation of law making power is implicit in the power of legislation, it will be diflicult line at the precise point where the legislature should stop and it will be is compe permissible to ask whether the tent to delegate 1, 10 or 99 per cent of its legislative power, and whether logical conclusion will not be that the legislature can delegate the full It seems to me content of its power in certain cases. that the correct and the strictly legal way· of putting the matter is as the Privy Council have put to function several cases. The effectively, has (1) See the Victorian Steve6Qring case ; 46 Com. L· R.. 73. sufficient data, has the strictly legislature legislature in order to draw to call 19'1 In,.. 71ie Delhi Low1 Act, 1912, etc. Faz/ A/11. 830 SUPREME COURT REPORTS [1951] legislate for the future as well as for the present and has to provide for a multiplicity of varying situations which may be sometimes difficult to foresee. In order to achieve its object, it has to rcson to various types and forms of legislation, entrusting suitable agencies with the power to fill in details and adapt legislation to varying circumstances. Hence, w'hat is known conditional legislation, an expression which has been very fully explained and described in a series of judg ments, and what is known as subordinate legislation, which involves giving power to subordinate authorities to make rules and ·regulations to effectuate the object and purpose for which a certain law is enacted, have been recognized to be permissible forms of legislation the principle that a legislature can do everything which is ancillary to or necessary for effective legisla tion. Once this is conceded, it follows that the legis lature can reson to any other form of legislation on the same principle, provided that it acts within the imits of its power, whether imposed from without or the nature of the duties it is called ·conditioned by upon to perform. The conclusions at which I have arrived so far may now be summed up :- (1) The legislature must normally discharge primary others. legislative function itself and not through (2) Once it is established that it has sov~rcign powers within a certain sphere, it must follow as a corollary that it is free to legislate· within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a par ticular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words it can do everything which is ancil lary to and necessary for the full and effective exer cise of its power of legislation. (3) It cannot abdicate legislative functions, therefore while entrusting power to an outside l9S1 In re The Delhi Laws Act, 1912, etc. Fazl AliJ. S.C.R. SUPREME COURT REPORTS 831 agency, it must see that such agency, acts as a sub ordinate authority and does not become a parallel legislature. ( 4) The doctrine of separation of powers and judicial interpretation it has received in America ever the American Constitution was framed, enables the American courts to check undue and excessive delegation but the courts of this country are not com mitted to that doctrine and cannot apply it 5ame way as it has been applied in America. There fore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principal that it should not cross the line beyond which delegation amounts to "abdica tion and self-effacement". I will now deal with the three specific questions with which we are concerned in this Reference, these being as follows:- ( l) Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what parti cular or particulars or to what extent ultra vires legislature which passed the said Act? (2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and what particular or particulars or to what extent ultra .flire1 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 the Parliament? Before attempting to answer these questions, it will be useful to state briefly a few salient facts about composition and power of the Indian Legislature at the dates on which the three Acts in question were It appears that formerly it was the executive passed. Government which was empowered to make regula tions and ordinances for "the good government of the factories and territories acquired in India", and up 1833, the laws used the Governor General in Council or by the Governors of Madras and to be passed by 1951 -lnre The Delhi Lows Act, 1912, etc. Faz/ Ali I. 832 SUPREME COURT REPORTS [1951} though In 1853, laws and the Council of the · strength of the Governor-General legislative council was appointed for Bengal; Bombay in Council, in the form of regulations. By the Ch.arter Act of 1833, the Governor-General's Coun cil was extended by the inclusion of a fourth ,member who was not entitled to sit or vote except at meetings regulations. The Governor for making General in Council was by this Act empowered to make· the whole of India and the laws and regulations for in the Governors of legislative powers which vested Madras and Bombay were withdrawn, to propose draft schemes. The Acts were allowed passed by in Council were required to be laid before the British Parliament and they were to have the same force as an Act of Parlia ment. Governor-General was further increased to 12 members, by including the fourth member as an ordinary mem ber and 6 special members for the purpose of legisla tion only. Then came the Councils Act of 1861, by restored which the power of legislation was Governors of Madras and Bombay in Council, and a the Governor-General in Council was still competent to exercise legislative authority over the whole of India and could make laws for "all persons and .all places and Council was further remodelled so as to include 6 to 12 members nominated for a period of 2 years by the than one-half Go1•ernor-General, of whom not to be non-officials. In his Council, no measure relating to certain topics could be introduced without the sanction of the Governor-General, and no law was to be valid until the Governor-General had given his assent to it and the ultimate power of disallowing a law was reserved to the Crown. Further, local legis for Madras and Bombay, latures were constituted to be non-officials wherein half nominated by the assent of Governor as well as that of the Governor-General was law passed by the necessary legislative was directed legislature. A lower Provinces of Bengal to be constituted for the members were the Governors, and things", and for to give validity similar legislative purposes to any 1951 In re The Delhi Laws Act, 1912, ztc. Faz/ A/ii. S.C.R. SUPREME COURT REPORTS 833 In 1892, its ambit, those of the time are : firstly, within and powe~s were given to constitute legislative councils for certam other Provinces. lnC:ian Councils, Act was passed, by which legislative councils were further expanded and certain fresh rights were given to the members. In 1909, came the Morley Minto scheme under which the strength of the legis lative council was the inclusion of 60 increased by additional members of whom 27 were elected and 33 in 1812, the Delhi Laws nominated. Soon after this, Act was passed, and the points which may be noticed in connection with the legislature which functioned at its powers legislature of 1861, were as plenary as whose powers came up for consideration before secondly, con Privy Council sidering the composition of the legislative council the . executive elements predominated, there was no room for the application of the doctrine of separation of power import, nor could it be said reason of that doctr!ne the legislature could not invest the Governor General with the powers which we find him invested It should be stated with · under the Delhi Laws Act. that in section 7 of that Act as it originally stood, Governor-General was mentioned as the authority who could by notification extend any enactment which was in force in any part of British India at the date of such notification. The "Provincial Government" was stituted for the "Governor-General" subsequently. in Burah's case, and the non-official and that by the 31st December, 1947, as adapted by Coming to the second Act, namely, the Aimer-Mer wara (Extension of Laws) Act, 1947. we find that when it was enacted on Government of India Act, 1935, India (Provincial OJnstitution) 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 OJncurrent Legis lative Lists. Lists I and II contained a list of subjects on which the· Central Legislature and the Provincial Legislature could respectively III contained subjects on which both the Central and the legislate, and List 19SI The De/Ai Lows Act, 1912, etc~ S34 SUPREME COURT REPORTS [19511 r!!Spect to make laws with legislate. Seetion 100( 4) Provincial Legislatures could of the Act provided that "the Dominion Legislature to matters has power enumerated in the Provincial Legislative List except for a Province or any part thereof." Section 46 (3) stated that the word "Province", unless context otherwise required, meant a Governor's Province. Therefore, section 100 (4) read with the definition. of "Provinces", empowered make laws with respect 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 the Act in question was passed, the Dominion Legislature was simultaneously to frame Constituent Assembly and had the Constitution. the Dominion Legislature to subjects mentionei;I functioning the power the provisions of The third Act with which we are concerned was passed after the present Constitution had come into force. Article 245 of the Constitution lays down that this Constitution, Par "subject to liament may make laws frpm the whole or any part of the territory of India, and the Legislature of a St.ate may make laws for the. whole or any part of the St.ate." On the pattern of the Government of India Act, 1935, Lists I and II in the Seventh Schedule of the Constitu tion enumerate the subjects on which the Parliament and the State Legislatures can legislate, while List III enumerates subjects on which both the legislate. Parliament and Under article 246( 4), "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 of the First Schedule nothwithstanding that such matter is a matter enumerated in the St.ate List." The points to be noted in connection with the Part C States (Laws) Act, 1950, are :- the State Legislatures can respectively ( 1) The present Parliament derives its authority from the Constitution which has been framed by the S.C.R. SUPREME COURT REPORTS 835 people of India through their Constituent Assembly, and not from any external authority, and within its own field it is as §upreme as the legislature of any other country possessing a written federal Constitution. 1951 In re The Delhi Laws Act, 1912, etc. (2) The Parliament has full power to legislate for Faz/ All I. the Part C States in regard to any subject. functions under (3) Though there is some kind of separation of governmental the Constitution, yet the Cabinet system, which is the most notable charac teristic of the British Constitution, is also one of the feat1,1res of our Constitution and the doctrine of separa tion of powers, which never acquired . that hold or significance in America cannot dominate the interpretation of any of the Con stitutional provisions. this country as it has I may here refer to an argument which is founded on articles 353 (b) and 357 (a) and (b) of the Consti article 353 (b ), when a Proclamation tution. Under of Emergency is made by the President,- to make include power "the power of Parliament to any matter shall iaws with to make respect laws conferring powers and imposing duties, or autho rising the corlferring of powers and the imposition of duties, upon the Union or. officers and authorities of the Union as that matter, , notwithstanding that it is one which is not enumerated in the Union List." resp<!cts Under article 357, when there is a failure of constitu tional machinery in a State, "it shall be competent- ( a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise: the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other a11thority to be specified by him in that behalf; (b) for Parliament, or for the President or other authority in whom such power to make laws is vested 1833, the Governor General in Council or by the Governors of Madras and to• be passed by laws used :19S1 The Delhi l;•ws Act, 1912, etc. .fazl Ali J. • 836 SUPREME COURT REPORTS [1951] powers and the imposition of duties, upon the Union or officers and authorities .thereof." In both these articles, the power of delegation is ex is argued that if delegation pressly conferred, and it was contemplated in normal legislation, there would have been an express power given to the Parliament, similar to the power given in articles 353(b) and 357 (a) and (b). In other words, the absence of an express provision has been used as an argument for absence of It should however be noticed the power to delegate. that these are emergency provisions and give no assist ance in deciding the question under consideration. So far as article 353(b) is concerned, it is enough to say that a specific provision was necessary to empower Parliament to make laws in respect of matters included in the State List upon which the Parliament was not otherwise competent to legislate. When the Parliament . was specially empowered to legislate in a field in which it could not normally legislate, it was necessary to state all the powers it could exercise. Again, article 357(a) deals with complete transfer of legislative power to the President, while clause (b) is incidental to the powers conferred on legislate for a State in case of failure of, constitutional machinery in that State. These provisions do not at all bear out the conclusion that is sought to be drawn !need, the Attorney-General drew from inference, namely, that by provisions recognized that delegation of power is permissible on occasions In my opinion, neither of these conclusions can be held to l>ie sound. the Constitution-makers have them. the opposite the Parliament and to be necessary. the President I will now deal with the three provisions in regard in this Reference. is required the answer to which They are as follows :- Section 7 of the Delhi Laws Act , 1912. "The Provincial Government may, by notification in the official gazette, extend with restncttons and modifications as it thlltks fit to the Province of Delhi or any part thereof, any enactment which is in 1951 In re The Delhi L(iw& Act, 1912,. etc. F11zl Ali J. S.C.R. SUPREME COURT REPORTS 837 force in any part of British India at the date of such notification." Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947. "The Central Government may, by notification 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." Section 2 of the Part C States (Laws) Act, 1950. "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 ta 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 i:iotifica tion; and provision may be made in any enactment so extended for repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State." At the first sight, these provisions appear to be very wide, their most striking features being these :-

#1. There is no specification in the Act by way of a list or schedule of the laws out -of which the selection is to be made by the Provincial or the Central Govern the case may be; but the Government has ment, as been given complete discretion to adopt any 'law what soever passed in any part of the country, whether by the Central or the Provincial Legislature.

#2. The provisions are not confined merely to the laws in existence at the dates of the enactment of these Acts but extend to future laws also.

#3. The Government concerned has been empowered not only to extend or adopt the laws but also to intro duce such restrictions and modifications as it thinks fit; and in the Part C States (Laws) Act, 1950, power to make a has been given to the Central Government provision in the enactment extended under the Act for the repeal or amendment of any corre_sponding law In re The D'11ri Laws ActJ 1912, _etc. Faz/ Ali J. 838 SUPREME COURT REPORTS [1951] (other than Central Act) which is for the time being applicable to the Part C State concerned. There can be no doubt that the powers which have been granted the Government are very extensive and the three Acts go farther than any Act in England judgment, notwithstanding or America, but, the somewhat unusual features to which reference has ~n made, the provisions in question cannot be held to be invalid. in my them. It is clear Let us overlook for the time being the power to introduce modifications with which I shall deal later, and carefully consider the main provision in the three Acts. The situation with which the respective legis latures were faced when these Acts were passed, was that there were certain State or States with no local legislature and a whole bundle of laws had to be enacted legislatures concerned, before passing the Acts, applied their mind and decided firstly, that the situation would be met by the adoption of laws applicable to the other Provinces inasmuch as they covered a wide range of subjects approached from a variety of points of view and hence the requirements of the State or States for which the laws had to be framed could not go beyond . those for which laws had already been framed by legislatures, and to an secondly, authority which was expected to be familiar and could easily make itself familiar with the · needs and condi tions of the State or States for which the laws were to be made. Thus, everyone of the Acts so enacted was a complete law, because it embodied a policy, defined a standard, and directed the authority chosen to within certain prescribed limits and not to go beyond them. Each Act was a complete expression of the will of the legislature to act in a particular way and of its command as to how its will should be carried out. The legislature decided that in the circumstances of the case that was the best way to legislate on the sub ject and It will be a misnomer to describe such legislation as amounting to abdiction oc powers, because from the very nature of the legislation the various the matter should be entrusted legislated. it so S.C.R. SUPREME 'COURT REPORTS 839 to make applicable it is manifest that the legislature had the power at any moment of withdrawing or altering any power with which the authority chosen was entrusted, and could the laws which the authority · was change or repeal the State or States required concerned. What is even more important · is that each case the agency selected was not empowered enact laws, but it could only adapt and extend laws enacted by responsible and compe~ent legislatures. Thus, the power given to th~ Governments in those Acts was more in the nature of ministerial than in the nature ·of legislative power. The power given was ministerial, because all that the Government had to do was to study the laws and·. make selections out of them. 1951 In re The Delhi Laws Act, 1912, etc. Fazl Ali J. That such legislation principle nor without precedent, will be clear what follows :- is neither unwarranted on

#1. The facts of the case of Queen v. Burah(1) are so familiar that they need not be reproduced, but for the purpose of understanding the point under discussion, it will be necessary to refer to section 8 of Act XXII of 1869 and some of the observations of the Privy Council which obviously bear on that section. The section runs as follows :- ''The said Lieutenant-Governor may to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the said Lieutenant-Governor, for making laws and regulatiqns, and may on making such extension direct by whom any powers or duties to the provisions so incident extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such· provisions into operation." the Governor-General, or of In their judgment, the Privy Council do not quote this section but evidently they had it in mind when they made the following observations :- (1) 5 I. A. 178. 1951 law: Tiie Dellli Law.r Act, 1912 etc .. SUPREME COURT REPORTS [1951] the discretion of "The legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time and the manner, of carrying it into the Lieutenant-Governor; effect and also, that the laws which were or might be force in the other territories subject to the same Govern ment were such as it might be fit, and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieu tenant-Governor." The language used here can be easily adapted in the following manner so as to cover the laws in question :- "The legislature determined that .......... the laws which were or might be in force in the other territories .... (omitting the words "subject to the. same Govern ment" for reasons to be stated presently) were such as it might be fit and proper to apply to this State also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on entrust a discretion the Central or Provincial Government." that point also, in force in the other territories subject to It seems to me that this line of reasoning fully fits in with the facts before us. The words "territories subject to the same Government" are not in my opinion material, because in Burah' s case only such lawa as same Government were to be extended. We are not to lay undue emphasis on isolated words but look at the principle underlying the decision in that case. In the Delhi Laws Act as originally enacted, the agency which was the Governor In the other two Acts, the agency was the General. the Governor-General In 1912, Central Government. exercised jurisdiction over the whole of the territories the laws of which were to be adapted for Delhi. The same remark applies to the Central Government, while dealing with the other two Acts. Is I have alrelldy laws was to adapt 19'1 The Delhi Low11A.ct,1912 ·etc. Fail A.Ill. S.C.R. SUPREME COURT REPORTS 841 stated, Burah' 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 Burah's case.

#2. It is now well settled in England and in America that a legislature can pass an Act to allow a Govern· ment or a local body or some other agency to make regulations consistently with the provisions of the Act. At no stage of the arguments, it was contended before us. that such a power cannot be granted by the legis lature to another body. We have known instances in which regulations have been made creaftng offences and imposing penalties as they have been held to be valid. It seems to me that the making of many of these regu· lations involves the exercise of much more legislative power and discretion -~ the selection of appropriate laws out of a mass of ready-made enactments. The following observations in a well-known American case, which furnish for empowering a justification subordinate authority to make regulations, seem to me, pertinent:- "It is well settled that the delegation by a State legislature to a municipal corporation of the power to legislate, subject law, concerning local affairs, . does not violate the inhibition again.St the delegation of the legislative function. the paramount It is a cardinal principle of our system of govern· local affairs shall be managed by authorities, and general affairs by the central authority, and h.::nce, while the rule is also fundamental that the power to make the laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legis is not regarded as a transfer of general legisla· lation rive power, but rather as the grant of the authority to prescribe local immemorial regulations, according practice, subject, of course, to the interposition of the in cases of ni:cessity." (Per Fuller J. in Stou ;uperior tenburgh v. Hennick(1) ). (1) (1889) 129 u.s. 141. 1951 In re Tl,. Delhi Laws Act, 1912 etc. r - Fazl All J. 842 SUPREME COURT REPORTS [1951]

#3. A point which was somewhat similar to the one raised before us arose in the case of Sprigg v. Sigcau('). In that case, section 2 of the Pondoland Annexation Act, 1894, was brought into question. That section gave authority to the Governor to add to the existing laws in force in the territories annexed, such laws as he shall from time to time bv Proclamation declare to be in force in such territories: Dealing with this Pro vision, the Privy Council observed as follows :- In the opinion of "The legislative authority delegated to the Governor is very cautiously by the Pondoland Annexation Act expressed, and is very limited in its scope. There is not a word in the Act to suggest that it was intended to make the Governor a dictator, or even to clothe him with the full legislative powers of the Cape Parliament. His only authority, after the date of the Act, is to add to the laws, statutes and ordinances which had already been proclaimed and were in force at its date, such laws, statutes and ordinances as he 'shall from time to time by proclamation declare to be in force in such territories'. words do not import any power in the Governor to make "new laws" in the widest sense of that term; than authorise him to transplant to they do no more the new territories, and enact there, laws, stalJltes and ordinances which already exist, and are operative other parts of the Colony. It was argued for the . appel lant that the expression "all such laws made" occurrlljg in the proviso, indicates authority to make new laws whil:h are not elsewhere in force; but these words can not control the plain meaning of the enactment upon which they arc a proviso; and, besides that enactment is left to explain the meaning of the proviso by the reference back which is implied in the word "such". {pp. 247-8). their Lordships, Following the line of reasoning in the case cited, it may be legitimately stated that what the Central or the Provincial Government has been asked to do under the Acts in question is not to enact "new laws" but "to transplant" laws operative to the territory concerned (I) [1897) A.C. 238. 1951 In re The Delhi Laws Act, 1912. etc. Fazl Ali J .. S.C.R. SUPREME COURT REPORTS 843 I notice the principle. that "all such the country. in other parts of section 2 of the Pondoland Annexation Act, 1894, there was a proviso requiring laws made under or by virtue of this Act shall be laid before · both Houses of Parliament within fourteen days after beginning of the Session of Parliament next after the thereof as aforesaid, and shall be effec proclamation tual, unless in so far as the same shall be repealed, altered, or varied by Act of Parliament." This provi It was sion however does not affect made onlv as a matter of caution and to ensure the laws were superintendence good laws until they were repealed, altered or varied by Parliament. If the Privy Council have correctly stated in enacting the principle legislation does not part subordinate or conditional the power at any moment of withdrawing or altering the power entrust to another authority, its power of superintendence must be taken to be implicit legislation .. the somewhat Reference mav also be made here unusual case ;£ Dorr v. United States(1 ), where delega tion by Congress to a commission appointed by President of the power to legislate for the Philippine Islands was held valid. its perfect control and has of Parliament, in all such legislature

#4. There are also some American cases in which the jurisdiction has adopting of a law or rule of another been permitted, and one of the cases illustrative of the rule is Re Lasswell( 2 ), where a California Act declaring the existence of an emergency and providing that where the Federal authorities fixed a Code for the govern ment of any industry, that Code automatically became the State Code :>r violation of such · Codes, was held to be constitutional and valid, as against is was• an unlawful delegation of authority by the State legisla ture to the Federal Government and its administrative agencies, This case has no direct bearing on the pbints before us, but it shows that application of laws made fixing a penalty the contention therefor, and (I) (1904) 195 U.S. 138. (2) (19~4 I Cal. Appl (2d), 183. 8-3 SC lndia/68 1951 In re The Delhi Laws Act, 1912, etc. Faz/ Ali J. 844 SUPREME COURT REPORTS [1951] by another legislature has in some cases been held to be permissible. the provisions of

#5. There are many enactments India, which are not wothout their parallel in England, in which it the Act concerned is stated shall apply to certain areas in the first instance and that they may be extended by the Provincial Govern ment or appropriate authority to the whole or any part of a Province. The Transfer of Property Act, 1882, is an instance of such enactment, as section 1 thereof provides as follows :- "It (the Act) extends in the first instance to all the Provinces of India except Bombay, East Punjab and Delhi. But this Act or any part thereof may by notifica tion in the official Gazette be extended to the whole or any part of the said Provinces by the Provincial Government concerned.'' two alternatives. in 50 or more Acts is obvious that if in.stead of making similar pro It v1s1ons individually, a single provision is made in any one Act enabling the Provin cial Governments to extend all or any of the 50 or more Acts, in which provision might have been but has not been made for extension to the whole or any part of the Provinces concerned there would be no difference' in principle between ft was pointed out to us that in the Acts with which we are concerned, power has been given to extend not only Acts of the Central Legislature, which is author of th~ Acts in question, but also those of the Provin cial Legislatures. But it seems to me that the distinc tion so made does not affect the principle involved. The real question is : Can authority be given by a lc; gislature to an outside agency, to extend an Act or to a particular area? This really brings sef'les of Acts us back legislation the principle of conditional which is too deeply rooted in our legal system to be questioned now.

#6. Our attention has been drawn Acts containing provmons similar several the Acts S.C.R. SUPREME COURT REPORTS 845 being:- subject of the Reference, 1951 In re The Deihl Laws Act, 1912, etc. Faz/ Ali J.

#1. Sections 1 and 2 of Act I of 1865. 2. Sections 5 and 5A of the Scheduled Districts Act, 1874 (Act XIV of 1874).

#3. The Burma Laws Act, 1898 (Act XIII of 1898), section 10 (1).

#4. Section 4 of the Foreign Jurisdiction Act, 1947 (Act XLVII of 1947).

#5. The Merchant Shipping Laws (Extension Acceding States and Amendment) Act, 1949 XVIlI of 1949), section 4. (Act The relevant provisions of two of these Acts, which were passed before the Acts in question may be quoted, to bring out the close analogy. The Scheduled Districts Act, 1874. 5. "The Local Government, ·with the previous sanction of the Governor-General in Council, may, from time to time, by notification in the Gazette of India and also in the local Gazette (if any), extend to any of the Scheduled Districts, or to any part of any such District, any enactment which is in force in any part of British India at the date of such extension." 5A. In declaring an enactment in a Scheduled District or part thereof ut1'.ler section 3 of tlµs Act, or in extending an enactment to a Scheduled District or part thereof under section 5 of this Act, the Local Government with the previous sanction of the Governor-General in Council, may declare the opera tion of the enactment to be subject to such restrictions and modifications as that Government think fit." The Burma Laws Act, 1898. 10(1). "The Local Government, with the previous sanction of the Governor-General in Council, may, by notification in the Burma Gazette, extend, with restrictions and modifications as it thinks fit, to all or to any specified local arta any of in the Shan States, any enactment which is in the Shan States, or 19Sl In r~ The Deihl Laws Act, 1912, etc. Faz/ 11./IJ. 846 SUPREME COURT REPORTS [19511 in any part of Upper Burma at extension." the date of It is hard to say that any firm legis.lative practice had been established before the Delhi Laws Act and other Acts we are concerned with were enacted, but one may presume that the legislature had made several these Acts and experiments object for which they were intended. the passing of that they had worked well and achieved before it cannot bear the meaning of it. The modifications are laws which are applicable I wm now deal with the power of modification which depends on the wor<ls "with such modifications as it thinks fit." These are not unfami liar words and they are often used by careful draftsmen to enable to one place or object to be so adapted as to apply to another. The power of introducing necessary restrictions and modi fications is incidental to the power to apply or adapt the law, and in the context in which the provision as to the sinister sense modification occurs, to be made attributed within the framework of the Act and they cannot be such as to affect its identity or structure or the essen tial purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless power to adapt a law without giving it the power to make suitable changes. The provision empowering an extraneous authority to introduce modifications in Act has been nicknamed in England as "Henry VIII clause", because regarded popularly Sir Thomas Carr, who had considerable experience of dealing with legislation of the character we are con cerned with, refers to "Henry VIII clause" in this way in his book "Concerning English Administrative Law" at page 44 :- the personification of executive autocracy. to give an authority that monarch the types of orders which alter statutes, "Of all the so-called inserted 'Henry VIII clause' in big and complicated ACts, has probably caused the ·greatest It enables the Mi.lister in England. sometimes flutter S.C.R. SUPREME COURT REPORTS 847 by order to modify the Act itself so far as necessary for bringing it into operation. Any one who will look to see what sort of orders have been made under this innocuous. The them surprjsingly power will device is partly a draftsman's insurance policy, in case he has overlooked something, and is partly due to the creating immense body of special difficulties Acts are very hard to trace, and the draftsman could never be confident that he has examined them all in advance. The Henry VIII clause ought, of course, to be effective for a short time only." local Acts in particular areas. These in England 1951 In re The Delhi Laws Act, 1912, etc. Faz/ Ali J. in strict inconvenient, its powers, or rectify It is to be borne in mind that the discretion given to modify a statute is by no means absolute or ir.revo legal sense, with which aspect alone we are principally concerned in dealing with a purely legal question. As was pointed out by Garth C.J. in Empress v. BurahC ), the legislature is "always in a position to see how the powers, which it has conferred, are being exercised, and if they are exercised injudi ciously, or otherwise than in accordance with its inten in any tions, or if, having been exercised, the result it can always by another Act degree recall inconvenience." The learned Chief Justice, while referring to the Civil Pro cedure Code of 1861, pointed out that it went further than the Act impugned before him, because "it gave the Local Governments a power to alter or modify the Code in any way they might think proper, and so as to introduce a different law into their respective Pro vinces from that which was in force in the Regulation Provinces." Nevertheles, the Civil Procedure Code . of 1861 to be a good example of valid conditional legislation. In the course list of statutes passed by the Central and some of the Pro vincial Legislatures giving express power of modification to certain authorities, and the number of instances included in it, it is not an unimpressive list. A few of the Acts which may be mentioned by the arguments, we were supplied with a the Privy Council judging from (l) I.L.R. 5 Cal. 63 at 140· 1951 The De/hi Laws Act, 1912, etc. Faz/ A//J. 848 SUPREME COURT REPORTS [1951] illustration way of are :-The Scheduled Districts Act, 1874, The Burma Laws Act, 1898, The Bombay Prevention of Prostitution Act, 1923, The Madras City Improvement Trust Act, 1945, The Madras Public Health Act, 1939, U. P. Kand Revenue Act, 1901. There are also many instances of such legislation in England, of which only a few may be mentioned below to show that such Acts are by no means confined to this country. - In 1929, a Bill was proposed to carry out the policy of having fewer and bigger local authority in Scotland. During the debate, it was sudden!~ decided to create a new kind of body called the district council There was no time to work out details for electing the new district councillors, and therefore applied to them the statutory provisions relating to the election of country councillors in rural areas "subject to such modifications and adaptations• as the Secretary of State may by order prescribe." the Bill In 1925, the Parliament passed the Rating and Valuation Act, and section €7 thereof provided that if any difficulty arose in connection with its application to any exceptional area, or the preparation of the first the Minister "may by valuation list for any .'area, It was also provided that "any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect." the difficulty." remove In 1929, a new Local Government Bill was intro duced in Parliament, and section 120 thereof provided that "the Minister may make such order for removing difficulties as he may judge necessary ........ and any such order may modify the provisions of this Act." Section 1(2) of the Road Transport Lighting Act, 1927, provided that "the Minister of Transport may exempt wholly or partially, vehicles of particular kinds from the requirements of the Act," and sub-section (3) empowered him to "add to or vary such requirements" by regulations. S.C.R. SUPREME COURT REPORTS 849 By sectiOn 1 of the Trade Boards Act, 1918, "the Minister of Labour may, by special order, extend the to new provisions of trades ...... and may alter or anfend the Act." the Trade Boards Act, 1909, the Schedule 1951 In re The Delhi Laws Act,, 1912, etc. Faz/ Ali J. The Unemployment Insurance Act, 1920, by sec that "if any difficulty arises with tion 45 provided respect to the constitution of special or supplementary schemes ........ the Minister of Labour ........ may by order do anything which appears to him to be neces- sary or expedient ...... and any such order may modify the provisions of this Act ...... ". Similar instances may be multiplied, but that will serve no useful purpose. The main justification for a provision empowering modifications to be made, is said to be that, but for it, the Bills would take longer to be made ready, and the operation of important and whole some measures would be delayed, and that once the Act became operative, any defect m its provisions cannot be removed until amending legislation is passed. It is also pointed out that the power to modify within certain circumscribed limits does not go as far as many other powers which are vested by the legislature in high officials and public bodies through whom decides to act in certain matters. It seems to me· that it is now too late to hold that the Acts in question are ultra vires, merely because, while giving the power to the Government to extend an Act, the legislatures have also given power to the Government to subject it to such modifications and restrictions as it thinks fit. ·It must, however, be recognised that what is popularly known as the "Henry VIII clause" has from time to time provoked unfavourable comment in England, and the Committee on Ministers' Powers, while admitting that it must be occasiQnally used, have added : " .... we are clear in our opinion, first, that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him upto the essen It can only be essential for the limited purpose of tial. 19Sl Iii. re Tfti..De/hi LawJ·Act, 1912, etc. Faz/ Ali J. • 850 SUPREME COURT REPORTS [1951] requisite to extend it." "delegated It mav also be stated legislation" often bringing an Act into operation and it should accord ingly be in most precise language restricted to those purely machinery arrangements vitally t1:1e clause should always contain a that purpose ; and limit of one year after which the maximum If in the event the time limit powers should lapse. too short-which is unlikely-the Government proves should then come back to Parliament with a one clause Bill England regulations or provisions made by the delegate autho rity to be laid before the Parliament either in draft form or with the condition that they are not to operate till approved by Parliament or with no further direc tion. The Acts before us are certainly open to the com safeguard has not been observed, but that however desirable the adoption of this safeguard and other safeguards which have been suggested from time to time may be, the Acts, which has to be determined the validity of on purely legal considerations, cannot be affected by their absence. this valuable it seems requires to me I w1ll now deal with section 2 of the Part C States (Laws) Act, 1950, in so far as it gives power to the Central Government to make a provision in the enact ment extended under the Act for the repeal or amend ment of any corresponding law which being applicable to the Part C. State concerned. No doubt this power is a far-reaching and unusual one, but, on a careful analysis, it will be found to be only transplantation and the power of a concomitant of modification. If a new law is to be made applicable. it may have to replace some existing law which may have become out of date or ceased to serve any useful purpose, and the agency which is to apply the new law must be in a position to say that the old law would cease to apply. The nearest parallel that I can find to this provision, is to be found in the Church of England Assembly (Powers) Act, 1919. By that Act, the Church to propose Assembly is empowered the Church of England, and ing matters concerning legislation 1g.s1 In re The Defhi Laws Act, 1912, etc. Fazl AliJ. .. :S.C.R. SUPREME COURT REPORTS 851 itself. the provision has the legislation proposed may extend to the repeal · or amendment of Acts of Parliament including the Church It should however be noticed Assembly Act it · legislative that it is not until Parliament itself gives force on an affirmative address of each House that measure is converted into legislation. There is thus no real analogy between that Act and the Act before us. to be upheld, because, However, though it goes to the farthest limits, it is difficult the powers of a legislature which is supreme in its own field; and all we can say is what Lord Hewart said in King v. Minister of that the particular Act may be Health(1), namely, r~garded as "indicating the high water-mark of lative provisions of that, unless legislature acts with restraint, a stage_ may be reached when legislation may amount to abdication of legislative powers. this character," and that it was beyond subject is both limits, using Before I conclude, I wish to make a few general observations "delegated the expression once legislation" and in the popular sense. This form of legislation has become a present-day necessity, and it has come to stay-it inevitable and indispensable. The legislature has now to make so many laws that it has no time to devote to all the legislative details, sometimes the subject on which it has to legislate is of such a technical nature that all it can do is to state the broad principles and leave the details to be worked out the subject. Again, when complex schemes of reform are to be the legislation, it is difficult to bring out a self subject of contamed and complete Act straightaway, since it not possible the contingencies and envisage all the local requirements for which provision is to be made. Thus, some degree of flexibility becomes necessary, so as to permit constant adaptation to un known future conditions without the necessity of having to amend the law' again and again. The advantage of sqch a course is that it enable the delegate authority those who are more familiar with foresee all (l) [1927] 2 K.13. 229 at 236. 19S1 Jn re The Delhi Laws Act, 1912, etc. Fazl Ali J. 852 SUPREME COURT REPORTS [1951J time vary orders · authorising to consult interects likely to be affected by a particular law, make actual experiments when necessary, and utilize the results of its investigations and experiments in the best way possible. There may also arise emer gencies and urgent situations requiring prompt action and the entrustment of large powers to authorities who to deal with· the various situations as they arise. There are examples in the Statut~ books of England and other countries, of laws, a reference to which will be sufficient to justify the need for delegated legisla tion. The British Gold Standard (Amendment) Act, 1931, empowered the Treasury to make and from time taking of such measures in relation to the Exchanges and otherwise they may consider expedient for meeting difficul the suspension of the ties arising in c.onnection with Gold Standard. The National Economy Act, 1931, of England, empowered "His Majesty to make Orders in Council effecting economies in respect 0£ the services . specified in the schedule" and proved that the Minister designated in any such Order might make regulations to the Order. The Foodstuffs (Pre for giving effect vention of Exploitation) Act, 1931, authorised Board of Trade to take exceptional measures for pre venting or remedying shortages in certain articles of food and drink. It is obvious that to achieve the objects which were intended to be achieved by these Acts, they could not have been framed in any other way than that I have referred to these in which the complexity of modem instances to show the functions of administration and the State the economic and social sphere have rendered it necessary to resort to new form& of legis lation and to give wide powers to various authmities suitable occasions. But while emphasizing delegation in these days inevitable, one should not the dangers attendant upon injudicious exercise of the power of delegation by the legislature. The dangers delegated power so loosely that the ·area it is intended to - cover cannot be clearly ascertained, and in gjving the expansion of they were framed. in defining involved 1951 In re The Delhi Laws Act, 1912., etc. Faz/ Ali J. Patanjali Sastri J. S.C.R. SUPREME COURT. REPORTS 853 to executive authorities and at wide delegated powers the same time depriving a citizen of protection by the courts against harsh and unreasonable exercise of powers, are too obvious to require elaborate discussion. For the reasons I have set out, I hold that none of the provisions which are the subject of the three ques tions referred to us by is ultra vires and I would answer those que5tions accordingly. the President PATANJALI SAsTR1 J.-The President of India by an order, dated the 7th January, 1951, has been pl¢ased to refer to this Court, under' article 143(1) of th!! Constitution, for consideration and report the fol- lowing questions : · I. 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 legis- lature 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, in what 1950, or any of the provisions particular or particulars or to what extent ultra vire,; the Parliament? thereof and · The reasons for making the reference are thus set out in the letter of reference : "And whereas the Federal Court of India in fatindra Nath Gupta v. The Provin(e of Bihar(1) held by a major ity that the proviso to sub-section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra vires ground that the said proviso conferred power on the Provincial Government to modify an act of the Pro vincial Legislature and thus amounted to a delegation of legislative ·power; the Bihar Legislature inter alia on And whereas as the Federal Court, (I) [I }19-50} F.C.R. 595. a result of the said decision of regarding doubts have arisen 1951 Jn re The Delhi .Laws Act, 1912, etc. Patanjali Sastri J. 854 SUPREME COURT REPORTS [1951] section 7 of the Ajmer-Merwara the Delhi Laws Act, the validity of 1912, section 2 of (Extension of Laws) Act, 1947, and section 2 of the Part C States (Laws) Act, 1950, and of the Acts extended to the Pro vinces of Delhi and Ajmer-Merwara and various Part C States under the said sections respectively, and of the orders and other instruments issued under the Acts so extended; And whereas the validity of section 7 of the Delhi Laws Act, 1912, and / section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, and of the Act extended by virtue of the powers conferred by the said sections has been challenged pending at present before the Punjab High Court, the Court of the Judicial Commissioner of Ajmer, and the District Court and the Subordinate Courts in Delhi." The provisions referred to above are as follows : Section 7 of the Delhi Laws Act, 1912 : 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 noti fication." Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947: "Extension of enactments . to AJmer-Merwara.-The Central Government may, by notification in the official the Province of Ajmer-Merwara Gazette, extend restrictions and modifications as it thinks with such fit any enactment which is in force in any other Pro vince at the date of such notification. to extend enactments Section 2 of the Part C States (Laws) Act, 1950 : to certain Part C "Power States.-The Central Government may, by notification in the official Gazette, extend to anv Part C State the Andaman and Nicobar than Coorg and (other to any part of such State, with such Islands) or fit, any restrictions and modifications as thinks S.C.R. SUPREME COURT REPORTS 855 enactment which is in force in a Pan A State at the the notification; and provision may be made date of in any enactment so extended f9r the repeal or amend ment of any corresponding law (other than a Central Act) which is for the time being applicable Part C State." 19Sl In re . The Delhi Laws Act, 1912, etc. Patanjali Sastrl J. The Central Legislature, which enacted these pro visions, had, at all material times, the power to make laws itself for the designated territories. But, instead of exercising that power, it empowered the Provincial Government Central Government in the others, to extend, by noti fication in the official Gazette, to the designated terri tories laws made by Provincial Legislatures all over India for jurisdic tion. The principal delegated to the executive are as follows : territories within their features of respective the authority first-mentioned case, ( 1) The laws thus to be extended by the executive itself, the Central Legislature, but by different are laws made not by the delegatina- namely, Provincial Legislatures for their respective territories. authority (2) In extending such laws the executive is to have the power of restricting or modifying those laws as· it thinks fit. the executive is empowered not only (3) The law to be extended is to be a law in force at the time of the notification of extension, that is to say, to extend laws in force at the time when the impugned provisions were enacted, which the Central Legislature could be to have examined and found ·suitable for supposed extension to the territories in question, but also laws to be made in future by Provincial Legislatures for their respective the Central Legisla ture could possibly have no means of their suitability for such extension. territories which judging as (4) The power conferred on the executive by the enactments referred to in Question No. 3 is not only to extend laws made by legislatures but also t.o repeal or amend corresponding law in force in the designated territories. the designated ·territories 856 SUPREME COURT REPORTS [1951] The question is : Was the delegation of such sweep ing discretionary power to pick and choose laws made by other legislatures to operate elsewhere and to apply in question within the com petence of the Central Legislature? territories 1951 In re The Delhi uws Act, 1912, etc. PatanjaU Sastri J. extent certain In /atindra Nath Gupta v. The Province of Bihar('), which has led to this reference, the Federal Court of India held by a majority (Kania C. J., Mahajan and Mukherjea JJ.) that the proviso to sub-section (3) of the Bihar Maintenance of Public Order section 1 of the Provincial Act, 1937, purporting authorise Government, conditions which are not material here, to extend by notification, the operation of the Act for a further specified period after its ex,>iry with or without modifications amounted to a delega legislative power and as such was beyond tion of legislature. The de~ision pro the competence of ceeded legislative power was that delegation counsel though incompetent there are their Lordships observations lending support of that view. Faz! Ali J. in a dissenting judgment held that the power to extend and the power to modify were separate powers and as . the Provincial Govern ment had the operation of it, Act without making any modification proviso legislation. conditional the conclusion of the, majority While agreeing with the detention of that case rest my decision on was unlawful,. I preferred a narrower ground which has no relevancy present discussion. fuller argu ments addressed to us in the present case, I am unable to agree with the majority view. it must be admitted judgments of the' weight of their authority the petitioners fact extended concession light· of operated In vigorously attacked The Attorney-General, appearing on behalf of the President Jatindra Nath Gupta's case(') as being opposed alike the weight of to sound constitutional principles and authority. He cited numerous decisions of the Privy (I) (1949·50] p.c.R. 595. the majority S.C.R. SUPREME COURT REPORTS 857 that legislative power Council and of the American, Australian and Canadian Courts and also called attention to the views expressed in support of his by various writers on the subject contention involves as part of its content a power to delegate it to other authorities and that a legislative body empowered to make on certain subjects and for a certain territory is com petent, while acting within delegate the whole of its legislative power to any other person or body short of divesting itself completely of such power. its appointed limits, 1951 In re The Delhi Laws Act, 1912, etc. Patanja/i Sastri J. limitatibns It is now a commonplace of constitutional law that a legislature created by a written constitution must act - within the ambit of its powers as defined by the con prescribed stitution and subject contrary that every legislative act done thereby and In Eng to the provisions of the constitution is void. land no such problem can arise as there is no constitu tional limitations on the powers of Parliament, which in the eye of the law, is sovereign and supreme. It can, by its ordinary legislative procedure, alter the consti it can be tution, so that no proceedings passed by challenged on constitutional grounds in a court of law. But India, at all material times,-in 1912, 1947 and 1950 when the impugned enactments were passed-had a written constitut:ion, and it is undoubtedly the func tion of the courts to keep the Indian legislatures within the proper ap their constitutional bounds. Hence, proach "to look to the terms of the instrument by which, affirma legislative powers were created, and by tively, If what has which, negatively, been done is legislation within the general scope of the affirmative words which gave the power and if it vio lates no express condition or restriction by which power is limited (in which category would of course be included any Act of variance with it) it is not for any court of justice to those con inquire further or to enlarge constructively ditions and restrictions.": Empress v. Burah(1). We to questions of constitutional validity is they were restricted. Imperial Parliament (I) 5 I.A. 178· 1951 la re The Delhi Laws Act, 1912, etc. PatatJ}all Sastri J. 858 SUPREME COURT REPORTS [1951] have, therefore, to examine whether the delegation of authority made in each of the impugned enactments is contrary to the tenor of the constitution under which the enactment itself was passed. No provision is be found the relevant constitutions authorising or prohibiting in express the: delegation of legisla tive power. Can a prohibition against delegation be terms of the constitu derived tion and, if so, is there anything in those terms from which .such a prohibition can be implied? inferentially from in England the doctrine legislation could arise Before examm1ng the relevant constitutions to find an answer to the question, it will be useful to refer to the two main theories of constitutional law regarding what has been called delegated legislation. Though, as al ready explained, no question of constitutionality of itself, such problems have frequently arisen in the British common wealth countries which have written constitutions, and British Judges, trained in the tradition of parliamentary that evety omnipotence, have evolved legislature created by an Act of Parliament, though bound to act within the limits of the subject and area marked out for it, is while acting within such limits, :ts supreme and sovereign as Parliament itself. Such in no sense del~gates of the Imperial legislatures are the maxim delegatus non therefore, Parliament and, potest delegare is not applicable to them. A delegation of legislative functions by them, however extensive. so their own capacicy, cannot be long as propositions challenged were laid down in no uncertain terms in the leading case of Hodge v. Queen(') decided by the Privy Council in 1883. Upholding the validity· of an enactment by a Provincial Legislature 'in Canada whereby authority was entrusted to a Board of Commissioners to make regulations in the nature of bylaws or municipal regu thereby lations for the good government of taverns and to create offences and annex penalties Lordships observed as follows : unconstitutional. These they preserve thereto, (1) 9 App. Cas. Il7. 1951 In re The Delhi Laws Act, 1912, etc. Patanjali Sastr;.J. S.C.R. SUPREME COURT REPORTS 859 the objection legislative assemblv "It was further contended that. the Imperial Par liament had conferred no authority on the local legis lature to delegate those powers to the Licence Commis sioners, or any other persons. In other words, the power conferred by Imperial Parliament on the local legislature should be exercised in full by that body, and by that body alone. The maxim delegatus It appears to their non potest delegare was relied on. raised Lordships, however, by the appellant is founded on an entire misconception of t~ true character and position of the provincial legislatures. They are · in no sense delegates of or acting under any mandate from the Imperial Parlia ment. When the British North America Act enacted for Ontario, and that there should be a legislature should have exclusive the Province and for pro authority to make laws for vincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to• 'be exercised by delegation from or as agents of the imperial Parliament, but authority as plenary and as the limits prescribed by section 92 as ample within the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area is supreme .............. lt was argued at the bar that a legislature committing important regulations to agents or delegates its powers effaces intact, and can, whenever agency it has created and set up another, or take the matter directly its own • hands. How far it can seek the aid of subordinate agencies, and how long shall continue them, are matters for each legislature, and not for courts of law, to decide." (1) itself.. That is not so. it pleases, destroy legislature It retains Here is a clean enunciation of the English doctrine limits" of what may be called "supremacy within that is to say, within the circumscribed limits of its legislative power, a legislature can do subordinate the Imperial Parliament can do, and no consti tutional limit on its power to delegate can be imported (1) 9 App. Ca&. 117, 131. 9-3 SC In<lia/68 19Si I• re The Delhi Law! Act, 1912, etc. Patolfja/I StUtri J. 860 SUPREME COURT REPORTS [ 1951] the quotation are significant. They the passage already quoted the strength of the maxim delt:gatus non potesi last few delegare, because it is not a delegate. The insist, words of from Burah's as does case('), that the scope of the enquiry when such an issue is presented to the coun is strictly limited seeing whether is acting within legislature bounds of its legislative power. The remarks about "abundance "authority ancillary this legislation entrusting a limited of precedents for obviously, descretionary authority reference to the particular authority delegated on to regulate taverns by facts of that case which was those remarks cannot be taken to issuing licences, and detract from or to qualify in any way the breadth of the general principles so unmistakably laid down in- the passages quoted. to others" have, legislation" It is a The same doctrine was affirmed in Powell v. Apollo Candle Co. Ltd.("), where, after referring to Burah's case(') and Hodge's case(3 ), their Lordships categori cally stated : "These two cases have put an end to a doctrine which appears at one time to have bad some currency, that a Colonial Legislature is a delegate of the Imperial Legislature. legislature restricted in the area of its powers, but within that area unres tricted, and not acting as an agent or a delegate." An objection that the legislature of New South Wales alone had power to impose the tax in question and it could not delegate that power to the Governor, was answered by saying "But the duties levied under Order in Council arc really levied by the authority of die Act undor which the order is issued. The legis lature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him"('). If Hodge's case(") did not involve an extensive dele legislative power, Shannon's case(") did. gation of (I) S I.A. 178· (2) 10 App. Cas. 282. (3) 9 App. Cas. 117 \4) 10 App. Cas. 282, 291. 'S) {1938) A.C. 708· 19S1 l'I Te The Delhi !laws Act, 1912, etc. Pataniali Sastri J. S.C.R. SUPREME COURT REPORTS 861 it owes in what legislative responsibility "surrendered the Act to which its own capacity a new those Boards. One of legislation was A provincial legislature in Canada had passed a com prilsory Marketing Act providing for the setting up of the Government Marketing Boards but leaving it to to determine what powers should functions be given the objections it was only a raised "skeleton of an Act" and that the legislature had practi another body." Lord Haldane's dictum known as the Referendum case(1) (to which a more detailed rcferc:ncc. will be made presently) suggesting a 1loubt as to a provincial legislatures power to "create and endow with legislative power not created by existence" was cited in support of the objection. The objection, however, was summarily repelled without calling upon Government counsel for an. answer. Their themselves with Lordships contended "plenary powers of delegation English doctrine of within constitutional limits" and said : "This objection rights their Lordships subversive of appears which the provincial legislanirc enjoy~ whik dealing with matters falling within the classes of subjects relation to which the constinition has granted · legisla the pr.avin tive powers. Within hs appointed sphere cial legislature is as supreme as any other parliament .......... Martin C. J. appears to have disposed of this objection very reference, and their Lordships find no occasion . to add to what he theye said." What Martin C. J. said is to be found in Re Natural Products Marketing (B.C.) Actf). He said "I shall not, however, persue at length this subject in Q11u11 v. the Privy Cow1cil 'The British Statute book abounds with Burah(3), examples of it' and a consideration Eor several days 'statute hook' discloses such a of our early and surprising number of delegations to various persons and bodies in alt sorts of subject-matters that it would satisfactorily in his judgment on legislative powers) because, the language of (delegation of reiterating (I) [1919) A.C. 935·· 2) (1937) 4 D.L.R. 298, 310. 0) 3 Apr. Cas. 889, 906. 1951 In re Tbe De/Ai Laws Act, 1912; etc. Patanjali Sastrl J. 862 SUPREME COURT REPORTS [1951] them. I must, to enumerate take several pages even them, and would also bring about a constitutional debacle invalidate therefore, content myself by selecting four statutes only." The learned Judge then proceeded to refer, among others, to a statute whereby "carte blanche powers were delegated over affected fruit lands areas to another to cope with a pest'', and "whereby power was conferred upon the Lieutenant Governor in Council to make rules of the widest scope" · and the first importance in our system of jurisprudence whereby our whole civil practice and procedure, appel late and trial, are regulated and constituted to' such an extent that even the sittings we hold are thereto sub jected". This recent pronouncement of the Privy Council on legislative is, in my opinion, of special interest for .delegability of the English view of following reasons :- (1) The case involved such an extensive delegation of legislative power-coun.sel thought the "limit" had been. reached-that it squarely raised the question of the constitutional validity of surrender or abdication of such power and Lord Haldane's dictum Referendum case(') was relied upon. (2) Nevertheless, the objection was considered so that Governmtnt counsel was their Lordships having the objection as "subversive" of well-estab plainly unsustainable not called upon regarded lished constitutional principles. to answer, (3) Martin C.J.'s instances of "carte blanche dele gation" were approved and were considered as· dispoi;. ing of the objection "very satisfactorily." · ( 4) All that was considered necessary to repeal the objection was a plain and simple statement of English doctrine, namely, within its appointed sphere the provincial legislature was as supreme as .any other Parliament, or, in other words, as there can be no legal limit to Parliament's power to delegate. so can there (I) [1919) A.C. 935. 1951 1nre The Delhi Laws Act, 1912, etc. Patanjali Sastri J. S.C.R. SUPREME COURT REPORTS 863 be none to the power of the provincial legislature to delegate legislative authority to others. Thus, the English approach to the problem of dele is characterised by a refusal gation of legislative power to regard legislation by a duly constituted legislature as exercise of a delegated power, and it emphatically the application of the maxim delegatus non repudiates It recognises the sovereignty of potest delegare. lative bodies within the limits of the constitutions by which they are created and concedes plenary powers It regards of delegation to them within such limits. delegation as a revokable entrustment of the power to to an appointed agent whose act derives its legislate validity and statute and not as a relinquishment by the delegating body of its own capacity to legislate. legal force from the delegating legislature, the other hand, the problem along wholly different the American courts have On approached lines, which are no less the outcome of their own environ ment and tradition. The American political scene in the eighteenth century was dominated by the ideas of Montesque and . Locke that concentration of legislative executive and judicial powers in the hands of a single organ of the · State spelt tyranny, and many State cons titution had explicitly provided that each of the great departments of State, · the the executive judiciary, . shall not exercise the powers of the others. Though . contained no such explicit provision, it was construed, against background of ideology, as . embodying the principle of . separation of powers, and a juristic basis for. the consequent non-delegability of its power by one of the departments, to the others was found in the old familiar maxim of the private law. of agency delegatus non potest delegare which soon established itself as a traditional dogma of American constitu tional law. But the swift progress of the nation in the industrial and economic fields and the resulting com plexities of administration forced the realisation on the American Judges of the unavoidable necessity the Federal Constitution the . separatist II In re Tke Delhi Law1Act,1912, etc. Pat an} a/I Sastrl J. 864 SUPREME COURT REPORTS recognised this would be "to stop large-scale delegation of legislative powers to adminis trative bodies, and it was the wheels of govern ment." The result has been that American decisions on this branch of the law consist lergely of attempts to disguise delegation "by veiling words" or "by ~trening it by a quasi" (per Holmes J. in Springer v. ''This result", Government of the Philipine Islands('). says a recent writer on the subject, "is well put Prof. Cmhman's syllogism- Major premise : Legislative power cannot he consti tutionally delegated by Congress. Minor premise : It is essential that certain powers regulatory be delegated to administrative officers .and commissions. Conclusion : Therefore the powers thus delegated are not legislative powers." They are instead "administrative" or "quasi-legisla tive"-(American Administrative Law by Bernard Schwartz, p. 20). After considerable confusion and fluctuation of opinion as to what are "essentially" legislative powers which cannot be delegated and what are mere "administrative" or "ancillary" powers, delegation of which is permissible, the recent decisions of the Supreme Court would seem to place the dividing line berween laying down a policy or establishing a standard in respect of the subject legislated upon the one hand and implementing that policy and enforcing that standard by appropriate rules and regulations on the other: (vide Schechter Poultry Corpn. v. United States(') and Panama Refining Co. v. Ryan(&), a test to considerable divergence which inevitably gives rise of judicial opinion as applied to the facts of a given case. I will tlow turn to the questions in issue. The first question which relates to the validity of section 7 of the Delhi Laws Act, 1912, has to ·be determined with reference to the competency of "the legislature which (I) 277 U.S. 189. (2) 295 u.s. 495. (3) 293 U.S. 388. S .. C.R. SUPREME COURT REPORTS 865 then in force. the said Act", that is, with reference to the passe? It may be mentioned here constitution that the Delhi Laws Act, 1912, as well as the Ajmer Merwara (Extension of Laws) Act, 1947, to which the second question relates, were repealed by section 4 of the Part C States the Acts already extended under the repealed provisions have been continued in force, and hence the necessity for a pronouncement on the constitutional . validity · of the repealed provisions. (Laws) Act, 1950, but 19S1 In re The Delhi Laws Act, 1912, etc. Patanfali Sastri J. laws and In 1912 the Indian Legi~lature was the Governor General in Council, and his law-making powers were derived from section 22 of the Indian Councils Act, (24 and 25 Vic Ch. 7) which conferred power 1861 "to make laws and regulations for repealing, amend ing or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian terri tories now under the dominion of Her Majesty and to regulations for all persons whether British or native, foreigners or- others, and for all courts of justice whatever and for all places and things what ever within the said territories," subject to certain con ditions and restrictions which do not affect the im pugned provisions. The composition and powers of the Governor-General in Council were altered in other respects by the Councils Acts of 1892 and 1909, but remained essentially the. same in 1912. The question accordingly arises whether section 7 of the Delhi Laws Act, 1912, was within the ambit of the legislative powers conferred on him by section 22 of the Indian Councils Act, 1861. As terrns-"for all the power is defined in very wide person .... and for all places and things whatevcr" Indian territories-the issue of competency within section 7 was reduces itself to the question whether a "law" within Indian Councils Act of 1861. This question is, m my the Privy opinion, concluded by Council in Empress v. Burah(1). the meaning of. section 22 of law-making powers the decision of (I) 5 I.A. 178. 1951 In re The Delhi Laws Act, 1912, etc. Patanjali Sastri J. 866 SUPREME COURT REPORTS [ 1951] leading judgment of legislative power territories subject That was an appeal by the Government from a judgment of the ma; ority of a Full Bench of the Cal that section 8 and 9 of cutta High Court holding Act XXII of 1869 were ultra vires the Governor General in Council as being an unauthorised delegation the• Lieutenant-Governor of Bengal. The combined effect of those provisions was to authorise the Lieutenant-Governor to extend to cer tain districts by notification the Calcutta Gazette "any law or any portion of any law now in force in the other to his government or which may hereafter be enacted by the Council of the Governor-General or of the said Lieutenant-Governor, for making laws and regulations .......... ". Markby }., the majority, who delivered that section 9 amounted to a delegation of held ( 1) legislative authority the Lieutenant-Governor by Indian Legislature which, having been entrusted with such authority as a delegate of the Imperial Par liament, had no power in the tum to delegate Indian Legislature could not apother, and "change India without the Acts of Parliament the provisions of affecting which cre.ated that machinery and if it does in any way affect them, then ex consensu omnium its Acts are void." The the argu- . ment of Govern.ment counsel, namely, "where Parlia ment has conferred upon a the general power to make laws, the only question can be 'Is the disputed Act a law'. Judge falls within some prohibition." The "sound", but met remarked that this argument was it by holding that "it was clearly intended to restrict the Legislative Council the exercise of functions which are properly legislative, that is, to the making (to use Blackston's expression) are rules of action prescribed by a superior to an inferior or 0£ laws made in furtherance of those rules. The English Parliament is not so restricted. It is not only a legislative but a paramount sovereign body ...... The Legislative Council, when it merely grants permission (2) legislative machinery If it is, then it is valid unless learned Judge referred laws, which legislature learned 1951 Jnu The Delhi Laws Act, 1912, etc. Patanjali Sastri J. S.C.R. SUPREME COURT REPORTS 867 a legislative transfer of legislative practice as to another person to legislate, does not make a law within the meaning of the Act from which it derives its authority"(1). The learned Judge rejected the argu ment based on previous instances relied on were not "clear and undisputed instances of authority." Garth C.J. in his dissenting opinion pointed out that "by the Act of 1833 the legislative powers which were then conferred upon the Governor-General in Council were in the same language, and (for the purposes of the present case) to the same effo~t, as those given by the Councils Act in 1861; and from the time when that Act was passed, the Governor-General in Council has constantly been in the habit of exercising those powers through instrumentality of high officials and public bodies, in whom a large discretion has been vested for that purpose."(2) It could not therefore be that "the Imperial Parliament would have supposed renewed the legislative the Councils Act of · 1861 powers which the Governor-General in Council had so long exercised, if they had disapproved of the course of action which the Legislature had been pursuing. The fact that with the knowledge of the cfrcumstances they must be assumed to have p9ssessed, Par liament did the powers which were gi~en by the Act of 1833, appears to me to amount course of action whi~h had been pursued by the legis lature .in the exercise of those powers was one which the Act had authorised."(3) The learned Chief Justice accordingly came to the conclusion that Act XXII of 1869 was a law "which the legislature was justified passing." referred at reasoning and conclusions of the learned judges in the High Court as I think they will be l)elpful in under standing the full import of the judgment of the Privy Council. to a statutory acknowledgment that the Councils Act renew I have length It will be seen, in the first place, that the line of approach adopted by Government counsel in the High (I) l.L.R. 3 Cal. 63 at 90, 91. (3) Ibid 144. (2) Ibid, 140. In re The De/hi Lllw1 Act, 1912, etc. Patanjall Sastri J. 868 SUPREME COURT REPORTS [1951] restrictions" the doctrine interpretation. second place, to enlarge constructively (italics mine). Court was endorsed by their Lordships as the correct approach to the problem, that is to say, the court has legislation to see whether "what has been done is the general scope of affirmative words which within give the power, and if it violates no express condition by which that power is limin:d it is not for any court to inquire further or conditions This passage clearly lays down [what we have already seen was reiterated in Hodge's case(')] : (1) that the scope of judicial review in such cases is limited only to deter mining whether the impugned enactment is within law-making power confer(ed on legislature and whether it violates any exp~ condition limiting that power, and (2) that in determining the latter question the court should have regard only to express conditions them inferentially by a pre> and should not enlarge cess of In they did also Lordships repudiated in Canada in respect of a provincial Hodge's case(')] that the Indian Legislature is in any sense an-agent or delegate of the Imperial Parliament, rule against delegation by an agent applies to the situation. Thirdly, the distinction made by Markby J. between Parliament and Indian Legislature that the latter is "restricted to the ....... . making of laws" in the sense defined by Blackstone, while Parliament was not so restricted, or, in other words, that while Parliament could make a "law" delegating its legislative power, the Indian Legislature could not make such a "law" was rejected, and limits was laid English doctrine of supremacy within down specifically in regard to the Indian Legislature, limits circumscribing which when acting within intended to have plenary powers of legislation as large and of the same nature as It must follow is as competent for the Indian Legislature to make a law delegating legislative power, is -£or both quantitatively and qualitatively, those of Parliament itself" (italics mine). legislative power "has and was [as legislature (1) 9 App, Cas· 117. S.C.R. SUPREME COURT REPORTS 869 the Governor-General Parliament to do so, provided, of course, 'it acts within their Lordships the circumscribed limits. Fourthly, "agree in Council could not by any form of enactment create in India and arm legislative with general power not created or authorised by the Councils Act. Nothing of that kind has in their Lordships' opinion been done or attempted in the present case." legislative authority a new 1951 ln re The Deihl Laws Act, 1912, etc. Patanjali Sastri J. stated it clear legislative power had reference Mr. Chatterjee, on behalf of the opposite party, submitted that the remark regarding the incompetency of the Governor-General in Council to create in India to the subord a new nate agency or instrumentality to which the legislative thus negatived the authority was to' be delegated · and legislature's right to delegate. The context, however, their Lordships were expressing this point with Markby J. who, as we agreement on Indian Legislature have seen, had in India could not "change the legislative machinery the provisions of the Acts of Parlia without affecting ment which created that machinery." This shows that the setting up of a their Lordships were · envisaging authorised by legislative machinery nnt Councils Act, that is, a new legislature in the sense which the Central and Provincial Legislatures in the country were that could not be done (because it would be a contra vention of the Act of Parliament· which confers no power to create such legislatures) their Lordships proceeded to point out that that was not what was done· by the im pugned Act and that Markby J. fell into an error thinking that it was. Their Lordships gave two reasons, first, because "it is a fallacy to speak of ·the powers thus conferred upon the Lieutenant-Governor (large as they if, when they were exercised, the undoubtedly are) as efficacy of the acts done under them would be due to any other in Council. Their whoie operation Governor-General is, directly and immediately, under and by virtue of this Act (No. XXII of 1869) itself." Here, indeed, Lordships touch the core of the problem by indicating legislative authority legislatures. While they agreed that of 1951 111 re The Delhi .Law.J_Act, 1912, etc. Patanjal; Sastri J. 870 SUPREME COURT REPORTS [1951] In Burah's case(") the true nature of delegated legislation as distinct from creating a new legislative body. The point is develop ed to its logical consequence in later cases as will be seen presently, but here they expose to view the not uncommon "fallacy" of treating the one as of the same nature and as having constitutionally the same con sequence as the other, a fallacy which perhaps accounts for much of the confusion of thought on the subject. It will be recalled. that in Hodge's case{') it was made clear that in delegated legislation the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through its choice. There is an agency or instrumentality of no finality .about this arrangement, the delegating body being free to "destroy the agency it has created and set up another or take the matter directly into its own their Lordships emphatic hands." ally stated one consequence of that view, namely, that the act · done by legislative. the authority power is delegated derives its whole force and efficacy legislature, that is to say, when the delegate acts under the delegated authority, it its appointed legislature instrumentality. On the creation of an new legislative body with general legislative autho rity and functioning in its own right, there is no dele gation of power to subordinate units, but a grant of power to an independent and co-ordinate body to make laws operating of their own force. In the first case, according law, no express to English constitutional provision authorising delegation absence of a constitutional inhibition, delegation of legislative power, however extensive, could be made so long as the delegating body retains its own legisla tive power the second case, a positive enabling provision in required. the constitutional document that really acts through the other hand, the delegating to which required. intact. In In The second reason why their Lordships regarded the majority view as erroneous was that Act XXII of 1869 was, in truth, nothing more than conditional legislation {l) 9 App. Cas. 117. (2) 5 I.A. 178 19S1 In re The Delhi Laws Act,1912', etc. Patanjali Sastri J. S.C.R. SUPREME COURT REPORTS 871 exerc1smg there was no question · of delegating "an act of ·exercised laws, powers; and legislative power. Their Lordships were of opinion that neither in fixing the time for commencement of the Act nor in enlarging the area of its operation was the Lieutenant "The Governor legislation." judgment proper legislature has the result of that place, person, · judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the is now absolute. Where plenary powers of legislation legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships' judgment) be wet! exercised, either absolutdy or conditional on the use of particular powers or on the exercise of a limited discretion, entrusted persons .in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute book abounds with examples of it; and it cannot be supposed that the Im perial Parliament did not, when constituting the Indian Legislature, conditional legislation as within the scone of the legislative powers It certainly used which it from time to time conferred. no words to exclude it." conditionally. Legislation, the Legislature contemplate kind of to such "restriction, to new territories subject . Their Lordships finally proceeded to refer legislative practice in this country of delegating to the executive government a discretionary power of extend ing enactments in certain limitation or proviso" as the Government may think proper, and they expressed their approval of the reasoning of Garth C.J. based on "If their Lordships," such practice. they said "were to adopt the view of the majority of the High Court they would (unless distinction were made on grounds beyond the competency of . the judicial office) be casting doubt upon the validity of a long course of legislation appropriate, as far as they can judge to the peculiar circumstances of Lordships are unable to discover any foundation either in th' affirmative or . the negative words of that Act" India ........ For such doubt 872 SUPREME COURT REPORTS [1951] 1951 The Delhi Laws Act, 1912, etc. Potonjo/i Sartri J. (Indian Councils Acts, 1861). The parenthetic remarks (which I have italicised) is significant. It is not com to their Lordships, to petent for the court, according It might discriminate between degrees of delegation. be extensive validity must, however, be founded "on the affirmative or the negative words" of the Constitution Act. in some cases and slight in others. the Governor the Statute of Westminster and, Another logical consequence of the British theory of delegation has been worked out in Co-operative Com mittee on Japanese Canadians v. Attomey-General for Canada('), where the question arose as to whether an -order made by in Council pursuant to authority dekgate<l by the Parliament of Canada was a law made by the Parliament of Canada within the ifl so, meaning of whether it was such a law made after the passing of that Statute. The delegation of authority Governor was made before that Statute was passed but the Governor's order was promulgated after the Statute. the order was a "law" made by the Holding Parliament of Canada after Statute of Westminster their Lordships observed : "Undoubtedly, the law as embodied in an order or regulation is made at the date when the power conferred by Dominion is exercised. Is it made after that date by the Dominion' That Parliament is the Parliament of for the Dominion as a the only law through whole and machinery set up and continued by it for that purpose. The Governor in Council has no independent status :is law-making body. The legislative activity of Parlia a time when the orders arc ment is still present at the made and these orders are "law''. In their Lordships' opinion they are law made hy the Parliament at· the .date of their promulgation."(") legislative authority the Parliament of it has chosen to make Mr. Chatterjee has urged that in Burah's case(') the Privy Council did no more than hold that the type of there called condi legislation which the competem:e of the tional (I) (1947] A.C. 87. (2) Ibid. 106-107. legislation was within their Lordships (3) 5 I.A. I 78. S.C.R. SUPREME COURT REPORTS 873 It is that category, true that the kind of legislation here legislature and was valid, and to by that the con Indian their Lordships in uphold siderations adverted ing such legislation have no relevancy in determining the validity of the provisions impugned in the present case. quc:stion does not belong for t~e operation of the impugned Acts is not made to depend the exercise of a discretion by an external that Burah' s :authority, but it involving condi case(1) has application only tional import lays down general principles of far-reaching ance. referred law" and as above as "laying down · 'putting an end" that a sub ordinate legislature acts as an agent or a delegate. legislation. As I have endeavoured to show, the general the false doctrine It was regarded ill Powell's case(2) is not correct to say to facts 1951 The Delhi lows Act, 19121 etc. Pata11jall Sastri J. the power to amend Mr. Chatterjee next relied on the dicti1m of Lord Haldane in the Referendum casc.C) In 'that case their Initiative ·· and Referendum Lordships held Act of Manitoba (Canada) was, in so far as it compelled the Lieutenant-Governor to submit a proposed law to a body of rntcrs totally distinct from the legislature of which he was the constitutional head and rendered him powerless to prevent it from becoming an actual law if approved by those voters, ultra vires the Provincial Legislature, as the Constitution of . the Province conferred upon that Legislature by the British, North America Act, 1867, excluded from its scope "the office of the Lieutenant-Governor". Lord Haldane, however, proceeded the following observations : "Section 92 of the Act of 1867 entrust~ in a Provutce to its Legislature that Legislature only. No doubt, a body, legislation on t11e subjects entrust with a power of that enjoyed by a Provincial Legislature could, while preserving ordinate Hodge v. The Queen(t) tl1e Legislature of Ontario was been done when in Canada, intact legislative power to it so ample as assistance of to make agencies, capacity (I) S I.A. 178. (2) 10 A.pp. eas .. 2s2. (3) (1919] A.C. 93S. (4) 9 App. ens. 111. 874 SUPREME COURT REPORTS [1951] 1951 In re The Delhi Laws Act, 1912 etc. Patanjali Sastrj J. held entitled to entrust to a Board of Commissioners to enact regulations relating to taverns; but authority it does not follow that it can create and endow with its own capacity ;t new legislative power not created the Act to which it owes its own existence. Their Lordships do no more gravity of arise."(') the constitutional questions which than draw attention Mr. Chatterjee submitted that the grave constitu tional question, to which Lord Haldane drew attention, I dp not think so. The dic arose in the present case. tum, like the observation of Lord Selborne in Burah's case( 2 ) regarding the power of the Governor-General in Council "to create in India and arm with general legislative authority a new legislative power," to which reference has been made, seems to envisage the un authorised creation of a new legislature with an pendent status as a is quite different from dele reasons already indicated, gation of legislative power, and my remarks in con nection with that observation equally apply here. law-making body, which, ) The only other decision of the Privy Council tu is King Emperor v. which reference need be made Benoari Lal Sarma.( 3 It was an appeal from a judg ment of the majority of the Federal Court of India (reported in [1943] F.C.R. %) holding, inter alia, that sections 5, IO and 16 of the Special Criminal Court~ the Governor Ordinance (No. II of 1942) passed by in exercise of his emergency powers wea General ultra vires and invalid. The ground of decision wa that although the powers of the High Court were taken away in for!Il by section 26 of the Ordinance, they were, in fact, the executive officer to whom it was left by sections 5, 10 and 16 to direct what offences or classes of offences and what cases or classes of cases shonld be tried by the special courts established under the Ordinance. these sections the execu tive officers absolute and uncontrolled discretion with laying down out any legislative provision or direction thus purported to confer on taken away by the order of In so (I) [1919} A.C. 935,945. (2) 51.A.178. (3) 72 I.A. 57. 1951 Jn re The Delhi Laws Act, 1912 etc. P.atanjali Sastri J, S.C.R. SUPREME COURT REPORTS 875 that, that of to which is nothing the policy or conditions with reference power was to be exercised, they were beyond the com the Governor-General. V aradachariar C. J ., petence of J. concerned, went elabo with whom Zafrulla Khan rately into the whole question of delegation of legisla tive powers, and while conceding, in view of the Privy Council decisions already referred to, that the Governor in emergencies was General (whose legislative power co-extensive with Indian Legislature) could not ~e regarded as a delegate of the Imperial Parliament and the maxim delegatus therefore, non potest delegare had no application, nevertheless expressed the opinion that "there above decisions of their Lordships that can be said to be inconsistent with the principle laid down the American passage Advocate-General of to adopt as his own argument." That prim; iple was this : The true distinction is between the delegation of power to make the law, which necessarily involves a decretion. as what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pur suance of the law. The first cannot be done, to the latter no valid objection can be made" (per Judge Ranney of the Supreme Court of Ohio, often cited in American decisions). The learned Chief Justice then proceeded to examine the American decisions bearing upon the delegation of powers and the opinions ex pressed by writers on a.dministrative law and came to the following conclusion :- authority which India proposed the constitutionality of "As we have already observed, the considerations foregoing passages and safeguard suggested than considerations of policy or may be no more expediency the English Constitution. But under Constitutions like the Indian and the American. is examin able in a court of law, these considerations are, in our opinion, an integral and essential part of the limita tion on the extent of delegation of responsibility by In· the present ·case, the executive. the Ordinance-making it is 10-3 S. C. India/68 impossible to deny legislature legislation 1951 In re The Delhi Laws Act, 1912 etc. Paton jail Sastrl J, 876 SUPREME COURT REPORTS [1951] the ordinary criminal courts and authority has wholly evaded the responsibility of laying down any rules or conditions or even enunciating the policy with reference to which cases are .to be assigned the special courts respectively and left the whole matter unguided and uncontrolled action of the executive authorities. This is not a criticism of the policy of the law-as counsel for the Crown would make it appear -but a complaint that the law has laid down no policy or principle to guide and control the exercise of undefined· powers entrusted to the executive authori ties by sections 5, IO and 16 of the Ordinance."(') learned Chief Justice because I have set out at some length the reasoning and conclusion of summarises and accepts most of what has been said before us by Mr. Chatterjee, in support of his conten tion that the American rules as to delegation of legis lative powers should be followed in this country in preference to views of English Judges on the point and that the delegation of a too wide and uncontrolled power must be held to be bad. The Privy Council, the reasoning and conclusion of the however, rejected majority of the Court in a clear and emphatic pro nouncemept· Their Lordships scouted what might be no more than considerations of policy or expediency under the British Constitution could, in• India, as in America, become constitutional limita responsibility tibns on merely legislation was open to judicial review under the constitution of this country. They said : "With the greatest respect to these eminent Judges, their Lordships feel bound point out that the question whether the Ordinance is intra vires or 11/tra vires does not depend on considera tions of jurisprudence or of policy. It depends simply on examining the language of the Government of India legislative authority con Act and of comparing ferred on the provisions of the ordinance by which he is purporting to exercise that authority"-the "It (I) [l 943] F.C.R. 96, 139-1 O. the delegation of the Governor-General with constitutionality traditional approach. legislative because 1951 In re 11ie Deihl Laws Act, 1!112 etc. Patanjali Sastrl J. S.C.R. SUPREME COURT REPORTS 877 better, if circumstances permit, that as a matter of wise and well-framed may be legislation frame as a statute in such a way that the offender may know in advance before what court he will be brought if he is charged with a given crime ; but that is a ques tion of policy, not of law. There is nothing of which their Lordships are aware "in the Indian constitution to :render invalid a statute, whether passed by the Central emergency legislature or under the Governor-General's powers, which does not accord with this principle ..... . that the There is not, of course, the slightest doubt Parliament of Westminster could validly enact the choice of courts should rest with an executive authority, and their Lordships are unable to discover any valid reason why the same discretion sho.uld not in India by be conferred law-making authority, whether Governor-General, as an exercise of the discretion con ferred on the authority to make laws for the peace, order, and good government of India."(1) that authority legislature or The English doctrine of supremacy within limits is here asserted once again, and its corollary is applied as the determining test : "What the British Parliament could do, the Indian legislature and the Governor-Gene ral legislating within their appointed sphere could also do." There was here a delegation of an "unguided and uncontrolled" discretionary power affecting liberty In the language of an American Judge, of the subject. it was "unconfined and vagrant" and was not "canal ised within banks that kept it from over-flowing :" (per Cardozo J. in Panama Refining Co. v. Ryan.(2) Yet, the delegation was upheld. Why? Because "their Lordships are unable to find any such constitutional limitation is imposed." torn from There is, however, a passage in ~he judgment of their Lordships, which, its context, may appear, at first blush, to accept the maxim of delegattts non potest delegare as a principle of English constitu repudiation tional the previous decisions already by the same tribun:d in (!) 72 LA. 57, 70-72. law, notwithstanding its consistent (2) 293 U.S. 388. 1951 In re The Delhi Laws A.ct, 1912 etc. Patanjali Sastri J. 878 SUPREME COURT REPORTS [1951) transfer to pass in answering to other authorities"(') referred to, and Mr. Chatterjee was not slow to seize on it as maki, ng a veering round to the American point of view. I do not think that their Lordships meant revolutionary. The passage is this : "It is anything so the Governor-General, acting undouhtedly under section 72 of Schedule IX, must himself discharge the duty of legislation there cast on him, and (italics cannot mine). This was said, however "second objection" which was that section 1 (3) of the Ordinance "amounted to what was called delegated the Governor-General, without legislation by which legal authority, sought the decision whether an emergency existed the Provincial Government instead of deciding it for himself." Now, the opening words of section 72 of Schedule IX of the Government of India Act declare : "The Governor-General may, in case of an emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof." The ·ordinance was thus passed avowedly in exercise of a special power to legislate meet an emergency, and the argument was very basis of this ordinance-making power must be an judg!llent and discretion by the exercise of personal Governor-General which he could not delegate to the Provincial Government or its officers. Their Lordships accepted the major premise of this argument but went on to point out that there was no delegation of his legislative power by the Governor-General at all and that "what was done legislation." It was with reference to this special ordinance-making power to meet emergencies that their Lordships that the Governor-General must himself exercise it and could not transfer it to other authorities. The words "acting under section 72 of ·Schedule IX" and "there cast on him" make their meaning clear, and the passage relied on by Mr. Chatterjee lends no support to his the non-delegability of legislative argument regarding power tn general. is only conditional In the light of the authorities discussed above and adopting the line of approach laid down there, I am S.C.R. SUPREME COURT REPORTS 879 of opinion that 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 the Governor law-making power on conferred General the provision did not violate any of the clause.> by which, negatively, that power was restricted. in Council and 1951 In re The De/Ill f.<~ws Act, 1912 etc. Para11ja/i Sa,'\trl .1. restrictions on Independenee Act, 1947, authorised The same line of approach leads me 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 removal of certain 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 the same, namely, "may make laws power remained for the whole or any part of the Dominion." No doubt, as between the Dominion and the Provinces there was a distribution of 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' Pro vinces, 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" make. and ''subject to the pro visions of this Act" had no application to the case, as no provision was brought to om notice which affected the validity of the law. the Dominion Legislature was competent legislative power according the restrictive words to the scope There was some discussion as meaning of the words "restrictions" and "modifica tions". It was suggested by Mr. Chatterjee that these words occurring impugned provisions would enable the executive authority to alter or amend any law which it had decided to apply to the territories in question and that a power of such undefined amplitude could not be validly delegated by the legislature. On 1951 In re The Delhi Laws Act, 1912 etc. Patanjali Sastri J. 880 SUPREME COURT REPORTS [19511 power. He instance mentioned by the Attorney-General submitted that the other hand, in such context "modification" was usually taken to connote "making· a change without altering the essential nature of the thing changed," and the use of the word would make no difference to the delegability or otherwise of legislative attention the Privy to an Council in Burah' s case, where their Lordships thought that the power given to the local government by Act XXIII of 1861 to extend the Civil Procedure Code of 1859 "subject to any· restriction, limitation or proviso" In the view which it may think proper was not bad. I have expressed above, however wide a meaning be attributed to the expression, it would not affect the constitutionality of the delegating statute, because no constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in either of the constitutions discussed above. That, I apprehend is also the reason why the Privy Council too attached no importance to the words in section 39 of Act XXIII of 1861 referred to above. inhibition against delegation of Turning next to section 2 of the Part C States {Laws) Act, 1950, it 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 corres ponding law (other than a Central Act) which is the time being in force in the State. This a9ditional clause, however, need not detain us, for, if there is no legisla constitutional tive power under the present Constitution, delegation can as well extend to the power of repeal as power of modification and the Court cannot hold such delegation to be ultra vires. The Constitutional valid ity of the additional clause thus stands or fall's with that of the first "part of the section and the only ques tion is : What is the position in regard to delegated legislation under the present Constitution ? Herc we do not have the advantage of Privy Council decisions bearing on the question as we had in Burah's case(') the Indian Councils Act, 1861, and Benoari Lal ~I) 5 I.A. 178. 1951 The Deihl Law,, Act, 1912, et".· Patanjall Sastri J. S.C.R. SUPREME COURT REPORTS 881 decisions line of approach Sarmas case(1 ) on the· Government of India Act, 1935. But the laid down in those cases and in numerous others, to which reference has been made, must be followed, not because of the binding force of those decisions, but because it is indubitably the correct approach to problems of this kind. Indeed, there is no difference between the English and American countries the correct way of recognised resolving such problems is to look to the terms of constitutional instrument, and to find out whether the impugned enactment falls within the ambit of the law the . legislature which making power conferred on ·passed. the enactment and, if so, whether it transgresses imposed . on power. this · satisfies double test, then it inust be held to be constitutional. If the enactment restrictions and in- question limitations point. In ' the provisions of We therefore begin by looking to the terms of the Constitution and we·· find that article 245 confers law making power . on Parliament the same general terms as in. the other . tWO cases discussed above. The article says "subject to this Con stitution, Parliament may make laws for the whole or any part of the · territory of India ...... " Then we have the scheme of distribution of legislative powers worked orit in article 246 as between Parliament and the legis latures of the States · specified in Part A and Part B of die First Schedule, which; however, does not affect the question we have to determine, for article 246(4), like section 100 (4) of the Government of India Act, 1935, pru"1des that. Parliarpent fuis power to make laws with respect to any matter for any part ·of die territory of India not included in Part A or Part B notwithstand ing ·that such matter is a matter enumerated in the State List. The poslti<>n, therefore, . is . substantially th11t under the Indian Councils Act, 1861, and Government of India Act, 1935, so far as ~nferring law-making power are· concerned. impugned enactment, which merely purports similar to the words Is then (I) 7l I .A; 57. The Delhi · Laws Act, 1912, etc. Patti':! ali sasrri r. 882 SUPREME COURT REPORTS [1951] recalled delegate law-making power the Central Govern ment for Part C States, a "law" within the meaning of article 245 ( 1) ? There can be no question hut that the Act was passed hy Parliament in accordance with the prescribed legislati,·e procedure, and I can see no reason why it should not be regarded as a law. It will interpretation which restricted Markby J. (') put on the word in section 22 of the Indian Councils Act in accordance with Blackstone's -0cfinition (formulation of a binding rule of conduct for the subject) was not accepted by the Privy Council in Burah's case. Even if a mere delegation of power to legislate were not regarded as a law "with respect to" one or other of the "matters" mentioned in the three in exercise of the Lists, residuary powers under article 248. it would be a law made to any specific provision The question next arises whether there is anything in the Constitution which prohibits the making of such a law. The main restrictions and limitations on the legislative power of Parliament or of the States are those contained in Part III of the Constitution relating to Fundamental Rights. Our attention has not been <ailed that Part or else where in the Constitution which prohibits or has the effect of prohibiting the making of a law delegating to a subordinate agency of Parlia legislative power ment's choice. What Mr. Chatterjee strenuously urged that, having regard to the Prearpble to the Con stitution, whereby India resolved, in their sovereign right, "to adopt, enact and exercise of the Constitution," Parliament, themselves to give which is charged with the duty of making laws for the territories of the Union, must, as in the American Con stitution, be deemed to be a delegate of the people, and that this fund:unental conception, which approximates the American Constitu to the conception underlying tion, attracts the application of the maxim delegatus non potest delegare, and operates as an implied prohi legislative power by bition against Parliament or, for that mater, by any other legislature the delegation of the people of (I) l.L.R. 3 Cal. 63, 91. 1951 In re The Delhi Laws Act, 1912, etc. Palan'aji Sastrl J. S.C.R. SUPREME COURT REPORTS 883 legislative; executive and the maxim. As already . stated, iri. the country. ·It is true to say that, in a sense, the people delegated judicial organs of their respective powers the State the fundamental rights to themselves while reserving which they made paramount by providing that the State shall not . make any law which takes away or abridges the rights conferred by that Part. To extent the Indian Constitution may be said to have been based on the · American . model, but this is from making the principle of separation of powers, as interpreted by the American courts, an · essential part of the Indian Constitution or making the Indian Legis latures the delegates of the people so as to attract the application of historical background and the political environment which influenced .the making of the . A~erican Con stitution were entirely absent here, and beyond creation of the three organs of the State to exercise their respective functions · as a matter of . convenient governmental mechanism, which is a common feature of most modern civilised governments, there is not least indication that the framers of the Indian Con stitution made the American doctrine of separation of powers, namely, that in their, absolute separation and vesting in different hands lay the basis of liberty, an integral and basic feature of the Indian Constitution. On the contrary, by providing that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions and that the Council shall be collectively responsible to the House of the People, the British model has the Constitution effected a fusion of legislative and executive powers which spells the negation of any clear cut division of governmental power into three branches which is the basic doctrine of American constitutional law. Without such a doctrine being incorporated in the Constitution and made the maxim delegatus non potest delegare could have no constitu tional status but could only have the force of a political precept to be acted upon by legislatures in a foundation, following structural 1951 111 re The Delhi Laws Act, 1912, etc. Patan.ia/i Sastri J. 884 SUPREME COURT REPORTS [1951] democratic policy consisting of elected representatives of the people in the discharge of their function of making laws, but cannot be enforced by the court as a rule of constitutional law when such function is shirked or evaded. The American courts are able to enforce the maxim because it has been made by the process of judicial construction an integral part of the American Constitution as a necessary corollary of the doctrine of separation of powers. But the position in India, as pointed out above, is entirely different, and the courts in this country cannot strike down an Act of Parlia ment as unconstitutional merely because Parliament decides in a particular instance to entrust its lative power to another in whom it has coHfidence, or, in other words, to exercise such power through its appointed entrustment may be to the democratic process. What may be is con regarded as politically undesirable stitutionally competent. instrumentality, however repugnant the President of Mr. Chatterjee also attempted to spell out an implied the · strength of prohibition against delegation on article 357 (I) (a) which provides specifically for dele gation by law-making powers conferred on him by Parliament in case of failure of constitutional machinery in States. This express pro vision, it is claimed, shows that whenever the makers of the Constitution wanted to authorise delegation of legislative powers they ha'{e made specific provision in that behalf and, in the absence of any such provision in other cases, no delegation of such powers I see no force in this argument. Merely permissible. in a particular instance of rare and extraordi because nary occurrence an express provision authorising law-making President powers conferred on · him by Parliament is made the Constitution, it is not reasonable to infer that it was intended to prohioit the delegation of powers in all other cases. The maxim expressio tmius est exclusio alterius is not one of universal application, and it inconceivable the Constitution could have intended to deny to the Indian Legislatures to delegate framers of another 1951 In re The Delhi Laws Act, 1912,. etc. Patanja/i Sastri J. SUPREME COURT REPORTS 885 ' intact. legislative activity law-making . capacity law has allowed, as we have seen, even a power which, as we have seen, has been recognised if not, a necessary con on all hands as a desirable, comitant of in modern States. America, having started with a rule against delegation the constitutional doctrine as a necessary corollary of of separation of · powers, has made and is making numerous inroads on the rule, and English constitu tional subordinate legislatures, the widest latitude to delegate their legislative powers so long as they retain their In such circum stances, a provision · for express delegation in a remote contingency is fur too flimsy a ground for· inferring a general prohibition against delegation of legislative power in all other cases. In this connection, it will be useful Burah's case adjudging an enactment constitutional violates no express condition or restriction by which the law-making power conferred on the legislature is to enlarge limited, and that it is not for the court constructively those conditions the Privy Council, as we have as recently as 1944, to what has always been regarded as an established doctrine of English constitutional law, namely, that the Indian legislature could do, in the matter of delegating its legislative powers, what the British Parliament could It would indeed 'be strange if, in framing the con do. stitution of the Independent Republic of India at the present day, its makers were to ignore the experience of legislative bodies all the world over and to deny to Parliament a power which its predecessors unquestion ably possessed. argument. recall Lord Selborne's observation to see "that in Benoari Lal Sarma's case referred I have no hesitation in rejecting the court has and restrictions," that all In the result, I hold that section 7 of the Delhi Laws Act, 1912, section 2 of the Ajmer-Merwara (Ex tension of Laws) Act, 1947, and section 2 of the Part C States (Laws) Act, 1950, are in their entirety constitutional and valid and I answer reference ac; cordingly. 1951 In re The Del/ii laws Act, 1912, etc. MaluQan J. 886 SUPREME COURT REPORTS [1951] MAHAJAN J.-In exercise of the powers conferred by clause President of India has referred the following questions to this Court for its opinion :- (I) of article 143 of the Constitution (I) 'Vas section 7 of the Delhi Laws Act, 1912, or any of the prJJvisions thereof and in what particular or particulars and to what extent ultra vires . the legis lature 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 and to what extent ultra vires the legislature which passed the said Act ? (3) Was section 2 of Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the Parliament ? ineffective. The reference raises questions of great importance concerning the administration of the affairs of the Re public and the kind since the first one of inauguration of the new constitution. The only point canvassed in the reference is as to the vires of mentioned therein. It was contended by learned Attorney-General that legislative power without autho .. rity or power to delegate is a futility and that unless legislative power includes the power to delegate, power suggested to administer will be that the true nature and scope of the legislative power of Parliament involves as part of its content power confer law-making powers upon authorities other than Parliament is a natural con sequence of the doctrine of the supremacy of Parlia ment. legislature when acting within the ambit of its legislative power has plel).ary powers of legislation as large and of the same nature as the p~es­ the British Parliament and unless cribed limits are exceeded, no question of ultra vzres can possibly arise, that question is "Look at the terms of the instrument by which affirmatively the created legislative powers are If what and by which negatively they are restricted. the proper approach that the Indian It was said itself and It was S.C.R. SUPREME COURT REPORTS 887 has been done 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 the power is limited, it is not for any court of justice to enquire or to enlarge constructively those conditions and restriction." (1) Reliance was also placed on in India and other countries of legislative practice the Commonwealth sanctioning statutes drawn up in the same form as the impugned enactments. constitutionality l9Sl In re The Delhi Laws Act,1912, .,., Maho]anJ. The questions referred .. cover three distinct periods of legislation in the constitutional and political history of this country. The first question relates to the period \Vhen the government of this country was unitary in the Indian Councils form and was constituted under Act, 1861, as amended from time to time up to the stage of the introduction of the Morley-Minto Reforms, when the Indian Legislature achieved the status of a political debating society and when as a result of the undoing of the partition of Bengal the capital of India was transferred from Calcutta to Del11i. The unitary form of government was changed ·after the different Round Table Conferences in London into a Federation the Constitution Act of 1935. This Act with cer till 26th January tain adaptations, 1950, when inaugurated. the Independence Act, 1947, India became a Under Dominion of legislative power of the Parliament of the Dominion remained within the ambit of the Constitution · Act of 1935, though the Parliament as a Constituent Assembly was · that of a sovereign. conferred unlimited powers The federal form of government that had been adopted by the Constitution Act of 1935 was also adopted by second question relates to the period when India had attained the status of a dominion under the Indian Independ ence Act, while the last question concerns the legislative competency of Parliament under the new constitution of the Republic of· India. the new constitution was the new constitution. The the British Empire but framers of remain (I) Queen v. Burah, 51,A. 178. 1951 In re The Delhi Laws Act, 1912, etc. BBB SUPREME COURT REPORTS P951] It is futile to ask in the year of grace 1951 whether delegated legislation is necessary or not. This kind of legislation is only a special aspect of the problem of administrative discretion. The necessity of delegating rule-making power on the largest scale of administra is as much a basic fact of modern tive authorities the assumption by the State of industrial society as social welfare. The problem, certain obligations of legislation and administra however, is how delegated tive discretion are confined and controlled so as the elementary principles of law in a comply with democratic society. The answer to be found within the ambit of the constitution of the country concerned and on that a lawyer or a jurist would place on it with a constructive legalistic .;ipproach. In this back and not a purely it is instructive to see how the question has ground been solved in other countries. the construction the problem has . result legislative It was ?JStomary for the mother of Parliaments to delegate mmor subordinate authorities and bodies. Some people took the view iliat such delegation was wholly unwise and should be dis pensed with. Prof. Dicey, however, pointed out that it was futile for Parliament to endeavour to work out details of large legislative changes and that such an endeavour would in cumbersome and prolix statutes. Blackstone remarked that powers of this kind were essential to the effective conduct of the govern ment. Constitutional practice grew up gradually as and when the need arose in Parliament, without a logical system, and power was delegated by Parliament for required much various <letail, or because technical, or because of pressure of other demands on parliamentary time. The its power being un Parliament being supreme and limited, it did what it thought was right. The doctrine of ultra vires has no roots whatever in a country where the doctrine of supremacy of Parliament holds field. The sovereignty of Parliament is an idea funda mentally the notions which govern rigid constitutions existing in countries inflexible and inconsistent with reasons : because it was 1951 In re The Delhi laws Act, 1912. etc. MahajanJ. S.C.R. SUPREME COURT. REPORTS 889 scheme of supremacy of representative which have adopted any law only government. In England the right of judges to control the executive and it has no greater constitutional value than that. The basis of power in England is the legal supremacy of to make law. Parliament and its unrestricted power In the words of Coke, "It is so transcendent it caniiot be confined either for causes or absolute as persons within any bounds,'' or again, as Blackstone put it, "An act of Parliament is the exercise of . the highest authority acknowledges upon earth. It hath power to bind· every subject in the thereunto, belonging; nay; land, and even the King himself, if particularly named therein. And it cannot be altered, amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of Parliament."(1). the dominions this kingdom The Parliament being a legal omnipotent despot, apart from being 01 legislature· simpliciter, it can in exercise of its sovereign power delegate its .legislative functions or even create new bodies conferring on them power to make laws. The power of delegation is not necessarily implicit in its power to make laws but may well be implicit in its omnipotence as an absolute sovereign. Whether it exercises its power of delegation of legislative power in its capacity as a mere l!!gisla ture or in. its capacity as an omnipotent despot, it is the touchstone of judicial not possible to test it on precedent or judicial scrutiny as courts of justice England cannot inquire into it. The assertion fore that this power Parliament exercises in its purely legislative capacity has no greater value that of an ipse dixit. For these reasons I am in respectful agreement with the view of judge and. jurist, Varadachariar in Benoari Lal Sarma's case(2) that the constitutional position in India approximates more closely to the American model to the English model and on this subject the decisions of the United States so far as lay down any principle are a valuable guide on this question. J., expressed that eminent (I) Vide Allen "Law in the Making", 3rd Bnd;, p. 367. (2) [1934] F. C.R. 96. 1951 111 re The D(•fl1i Laws Act, 1912. etc. Mahajan}. 890 SUPREME COURT REPORTS [1951J India we have It is unsafe, therefore, This view finds support also from the circumstance that the constitutions of two countries are funda mentally different in kind and character. They fall in two district classes having different characteristics. England has a unitary form of government with a flexible constitution, while in always had a rigid constitution and since 1935 it is federal in to make any deductions form. from the legislative power exercised under a system of is basically different in kind and government which not merely in degree from the other on the que5tion of its legislative competency and reach conclusions on In my opinion, search for a basis of such deductions. solution of the problem referred to us in that direction is bound to produce no results. I have, therefore, no the contention of the learned hesitation the questions the answer Attorney-General referred to us should be returned by reference exercise of power of Parliament the matter of delegation of legislative power to the executive. in rejecting It may, however, be observed that in spite of widest powers possessed by the British Parliament, it has adopted a policy of self-abnegation in the matter legislation. A committee was appointed of delegated to report on the Ministers' powers, popularly known the Donoughrnore Committee. It made its recom mendations and stated the limits within which power of delegated legislation should be exercised. Means were later on adopted for keeping a watchful eye on legislation. The Donoughmore Committee dis covered a few instances of cases where delegation had gone to the extent of giving a limited power of modify ing Parliamentary statutes. One of instances was in section 20 of the Mental Treatment Act, 1930 (20 & 21 Geo. V, c. 23). It empowered the Minister of Health by order to modify the wording of an enact ment so far as was necessary to bring it into conform the section. The whole ity with section related in previous use replace certain statutory expressions by others which at the moment were regarded less terminology, its intention being the provisions of 1951J In re The Delhi Laws Act, 1912, <IC. Mahajan I. S.C.R. SUPREME COURT REPORTS 891 offensive. The other instance was found in s~tion 76 of the Local Government Scotland Act, 1929, (19 & 20 Geo. V, c. 25). By this section the Secretary of State was empowered between 16th May, 1929, and 31st December, 1930, by order to make any adaptation or modification in the provisions of any Act necessary bring these provisions in conformity with the provi sions of other Acts. Such a clause in a statute bore the nickname "Henry VIII clause". Concerning it the Committee made the following recommendations : "The use of the so-called Henry VIII clause conferring power on a Minister the provisions of Acts of to modify to such amendments as Parliament (hitherto limited may appear to him to be necessary for the purpose of ~ringing the statute into operation) should be abandon ed in all but most exceptional cases and should not special be permitted by Parliament grounds stated in a ministerial memorandum to the bill. Henry VIII clause shoi.¥d never be used except for the sole purpose of bringing the Act into operation but subject to the limit of one year." except upon The language in which . this recommendation couched clearly indicates that even in a country where Parliament is supreme the power of modifying Parlia mentary statutes has never been exercised the manner indicated in the above recommendation, and even as regards limited power . the recom it should be the exercise of mendation was abandoned. then Henry It VIII clause has not been used by Parliament. is significant that since except The Dominion of Canada has a written constitution. The British North America Act (30 & 31 Viet., c. 31). It is not modelled on the doctrine of exclusive division of power between the departments of State, legislative judicial. It does not place executive and three water-tight compartments and it is somewhat similar in shape in this respect to the British constitu tion where the King is still a part of the legislature, . the House of Lords still a part of the judicial as well as legislative and where all parts of government form 11-3 S.C.India/68 892 SUPREME COURT REPORTS [1951] 1951 In re The Delhi Lows Act, 1912,, etc. Maha}llnl. a mutual check upon each other. This similarity, however, does not mean that the legislature in Canada the British Parliament. It is of falls in the class of non-sovereign legislatures, like all colonial parliaments. the same kind as to observe The decisions of Canadian courts are by no means uniform on the power of the Canadian Parliament to delegate legislative power. Those cited to us of recent date seem to have been given under the pressure of the two world wars and under the provisions of the War Measures Act. With great respect and in all humility, I am constr.lined in these decisions, to establish the vires of the powers delegated, arguments have been pressed into service which arct by no means convincing or which can be said to be based on sound juristic principles. They can only be justified on the ground that during a period of emer gency and danger to the State the dominion parlia ment can make laws which in peace time it has no to enact.. There are a number of Privy competency themselves CoUnciI decisions which have concerned in Canada legislative enactments which purported to transfer legislative power to out side authorities and it seems to me that these decisions furnish a better guide to the solution of the problem before us later decisions of the Supreme Court of Canada which seemingly. derive support from these Privy Council decisions rules stated therein. flires of The first of these decisions is in the case of R11ssell v. The Queen(') decided in 1882. Two questions were raised in the appeal The first was as to the validity of the Canada Temperance Act, 1878. It was urged that having regard the provisions of the British North America Act, 1867, relating to the distribution of legislative powers Parliament . of Canada to pass in question. The second question was that even if the Dominion Parliament possessed the· powers which it assumed exercise by the Act, it had no power to delegate (I) 7 App Cas. 829. it was not competent the Act S~C.R. SUPREME COURT REPORTS 893 and to give local authorities the right to say whether the Act should be operative or not. t;he provisions of relevant to the lt is the second question which present enquiry. The mode of bringing the second part of the Act into force, stating it succinctly, was as follows:- . 1951 In re The Dellll Laws Act, 1912. etc. Mahqfanl. the petition, the adoption of "On a petition to the Governor in Counci~ signed by not less than one-fourth in number of the electors of any country or city in the Dominion qualified to vote at the election of a member of the House of Com mons, praying that the second part of the Act should be in force and take effect in such country or city, and that the votes of all the electors be taken for or against the Governor General, after certain prescribed notices and evidence, issue a proclamation, embodying such petition, with a view to a poll of the electors being taken for or against its adoption. When any petition has been adopted by the electors of the country or city, named in Council may, after the in it, the Governor-General expiration of sixty days from the day on which petition was adopted, by Order in Council Jublished m the Gazette, declare that the second part the Act shall be in force and take effect in such country or city, and the same then to become · of force and take effect accordingly." . It was urged before their Lordships that assuming that the Parliament of Canada had authority to pass a law for prohibiting and regulating the sale of intoxi c;i.ti'µg liquon, it could not delegate its powers, and that it had done so by delegating the power to bring into force the prohibitory and penal provisions of Act t9 a majority of the electors of countries and cities. Their Lordships' answer to the counsel's contention was in these words :- this objection is "The short ai; iswer Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which certain parts of the Act shall come into operation only it deals. The provision 1951 In re The Delhi Laws II.ct, 1912, etc. MaJrajanJ. 894 SUPREME COURT REPORTS [1951] legislate. Parliament these persons power to on the petition of a majority of electors does not confer itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legis lation of this kind is in many cases convenient, and is certainly not unusual, and legislate cannot be denied to the Parliament of Canada, when the subject of is within its competency. the opinion of Their Lordships entirely agree with Chief Justice Ritchie on this objection. If authority on the point were necessary, it will be found in the case of Queen v. Burah('), lately before this Board." the power so to legislation the proposition urged by that delegation of It seems to me that their Lordships acquiesced and learned assented legislative power was not counsel they combated his arguments with permissible when the remarks that the Act does not delegate ·any legis lative power whatever. Otherwise, the shon answer that delegation of legislative power was implicit within the power of legislation pos sessed by the legislature. It was not necessary to base the decision on the ground of conditional legislation. the objection was Though Queen v. Burah(') was an appeal from the High Court of Bengal, a reference was made to it and laying down therein was mentioned as the decision an apposite rule for the decision of cases arising under the British North America Act, 1867. In order to ap preciate and apprehend the rule to which their Lord ships gave approval in the above mentioned case, seems . necessary v. to state precisely what Queen Burah(') decided. Act XXII of 1869 of the Council of. the Governor-General of India which is entitled "An Act to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Acts, and for other purposes" among other things provided as follows :-

#4. Save "Sec. territory known as the Garo Hills .... is hereby removed the Courts of Civil and (l) SI.A. 178 jurisdiction of hereinafter provided, S.C.R. SUPREME COURT REPORTS 895 Criminal Judicature, and from the control of the offices of revenue constituted by the Regulations of the Bengal the Acts passed by any legislature now or Code and heretofore established in British India, as well as from the law prescribed for the said courts and offices by the Regulations and Acts aforesaid. And no Act the Council hereafter passed by the Governor laws and Regulations shall be General for making territory, deemed unless to extend to any part of the said specially named same be therein. 1951 In re The Delhi Laws Act, 1912, etc. Mahajan/. Sec. 5. The administration of civil and criminal justice, and the superintendence of the settlement and realization of the public revenue, and of all matters relating to rent, within the said territory, are hereby vested in such officers as the said Lieutenant-Governor tribunals of first instance or may for time appoint. of reference and appeal, from The officers so appointed shall in the matter of aforesaid, administration the direction and control of subject Lieutenant-Governor and be guided by such instruc tions as he may from time to time issue. the purpose of superintendence Sec. 8. The said Lieutenant-Governor may, from time to time by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor-General, or of the said Lieutenant-Governor, for making laws and regulations, and may on making such extension direct by whom any powers or duties incident the provisions so extended shall be_ exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation. Sec. 9. The -said Lieutenant-Governor may time to time, by n<>tification in the Calcutta Gazette extend mutatis mutandis all <>r any of the provisions contained Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India." in the other sections of this Act to ·- 1951 In r~ Th• Delhi .!law• Act, 1912, ~tc. Mahajan/. 8% SUPREME COURT REPORTS [1951] removing Under the provisions of the Act the Lieutenant Governor of Bengal on the 14th October, 1871, issued a notification and in exercise of the powers conferred upon him by section 9, he extended the provisions of the said Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom jurisdiction of th>- Courts of Civil and Criminal Judicature, and specified in the notification the boundaries of the said territory. The notification extended all the provisions of the Act to the districts of Khasi and J aintia Hills. The Lieutenant-Governor did not exercise the power of selecting parts of these Acts for purposes of local application. Section 9 of the Act did not empower the Lieutenant-Governor to modify any of the provisions of the Act. The High Court of Bengal by a majority that the notification had no legal force judgment held or effeq the said territories from the High Court had previously jurisdiction which inasmuch as it, possessed over Governor-General of India for making laws and regu lations had · under the Councils Act, 1861, no power to delegate such authority to the. Lieutenant-Governor as it had by Act XXII of 1869 in fact purported to delegate. The Indian Councils Act, 1861, 24 & 25 Viet. c. 67, by section 22, gave the Governor-General in Council power for the purpose of making laws and regulations, power for repealing, amending or altering any laws or regulations whatever then in force or thereafter to be in force and to make laws and regulations for all persons, whether British or native, foreigners or others, and for all courts of justice, whatever, and for all places and things what~ ever within the said territories, and for all servants of the dominions of the Government of India within princes and states, provided always Governor-General in Council shall not have the power Qf making any laws or regulations which shall repeal or in any way affect any of the provisions of the Act. As regards section 9 of the Act their Lordships made the following observations :- its constitution, by the Council of that the S.C.R. SUPREME COURT REPORTS 897 the Judges of "The ground of the decision to that effect of majority of the High Court was, that the 9th section was not legislation, but was a delegation In the leading judgment of Mr. of legislative power. Justice Markby, agency are Indian Legislature seems to be regarded as, in effect an agent or dele gate, acting under a mandate from the Imperial Par liament, which must in all cases be executed directly by itself. the principles of relied on; and the doctrine 1951 In re The Delhi Laws Act; 1912, etc. Maltaja11 J. between conferred the power left to him thus suggested were correct, and "Their Lordships cannot but observe that, if the justified principle it, they would be unable the conclusion drawn from to follow the distinction made by the majority of the Judges Lieutenant-Governor of Bengal by the 2nd and that conferred on him by the 9th section. If, by the 9th section, it is left to the Lieutenant-Governor to deter it, shall be mine whether the Act, or any part of to a certain district, by the 2nd section it is applied to determine at what time that Act shall take effect as law anywhere. Legislation which does not directly fix the period for its own commence ment, but leaves that to be done by an external autho rity, may with quite as much reason be called incom plete, as that which does not itself immediately deter mine the whole area to which it is to be applied, but leaves this to be done by the same external authority~ If ' it is an act of legislation on the part of the external authority so trusted to enlarge the area within which a law actually in operation is to be applied, it would seem a fortiori to be an act of legislation to bring the law originally into operation by fixing the time for its commencement. "But their Lordships are of opm1on doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and the nature and legislation. The Indian Legislature has principles of powers expressly the Act of the Imperial Parliament which created it, and it can, of course, do limited by indeed of 1951 In re The Delhi l.Aws Act, 1912, etc. Mahajan I. 898 SUPREME COURT REPORTS [1951] limits which circumscribe nothing beyond 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. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, looking legislative instrument powers were created, and by which, negatively, If what has been done are restricted. 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 (in which category would, of course, be included any Act of Imperial Parliament at variance with it), it is not any court of justice to inquire further, or to enlarge constructively those concµtions and restrictions." is by ·by which, terms of affirmatively, The. learned Attorney-General placed · considerable in support of his pr<> reliance oh. these observations position that if the legislation is within the ambit of the field prescribed for exercise of legislative power, then from it it follows that within that field power can be exercised the widest extent. This quotation, however, cannot be torn off from the context and read by itself. Meaning can only be given to these observations in the light of the observations that follow the quotation cited above and which are in these terms:- to delegate "Their Lordships in Council could not, by any General enactment, create legislative authority, a new created or authorised by that kind · has, done or. attempted been done has determined, legislation, the Governor form of in India, and arm with general legislative power, not the Councils Act. Nothing in their Lordships' opinion, been in the present case. What has in Council in the due and ordinary course of is. this. The Governor-General remove a particular district 19S1 In re The De/hi Laws Act, 1912, etc. Mahajan/ • S.C.R. SUPREME COURT REPORTS 899 responsible t<>' that district any jurisdiction of the ordinary Courts and offices an? to place it under new courts and offices, to be appomted by and Lieutenant~Governor of Bengal; leaving it to the Lieutenant-Governor to say at what time that change shall take p1ace; and also .enabling him, not to make what law he pleases for that or any other district, but to apply by public notifica law, or part of law, which either already was, or from time to time might he, in force, by proper legislative autliority, in the other terri tories legislature determined that, so far, a certain change should take place; but that it was expedient time, and the manner of can1ring it into effect to the discre tion of the Lieutenant-Governor; and also, the other laws which were or might be territories subject to the same government were as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to the Lieutenant-Governor ..... . entrust a discretion to his government. The in force subject is, directly and "Their Lordships think that it is a fallacy to speak of · the powers the Lieutenant thus conferred upon Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor-General in Council. Their whole operation immediately, under and by virtue of this Act (XXII of 1869) itself. The proper legislature has exercised its iudgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. legislation !he conditions having been 1s . now absolute.. Where . plenary powers of legislation ex1~t as to pa~t1cular. sub1ects, whether in an Imperial or. m, ~ provmc1al legislature, they may (in their Lord ships; _Judgment) ?e ~ell exercised, either absolutely or the use of con?1t1onally. Leg1slat1on, conditional on limited particular powers, or on the exercise of a fulfilled, 1951 In re The Delhi Laws Act, 1912, etc. Mahajan I. 900 SUPREME COURT REPORTS [1951) to persons legislature is no uncommon it places confidence, in many circumstances, discretion, entrusted by thing; it may be highly con· and, abounds with venient. The B.ritish Statute book that the examples of Imperial Parliament did not, when constituting Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers time conferred. It certainly used no words to exclude it." it cannot be supposed it from it; and Towards the close of the judgment certain illustra tions were mentioned of legislation in India described as conditional legislation. Reference was made to the Codes of Civil and Criminal Procedure and particularly, section 39 of Act XXIII of 1861 which authorised the Local Government with the previous sanction of the legislative Governor-General capacity) the Act limitation or proviso "subject which the Local Government may think proper." in his (not the provisions of in Council restnct1on, to any extend the conclusion of Markby J. In my opinion, in this case their Lordships did not affirmatively assent to the proposition that the Indian Legislature had full power of delegation withifl ambit of its legislative field and they did not dissent in the concluding parn of the judgment that under general principles of law in India any substantial delegation of 1egislative power by the legislature of the country was void. On the other hand, they remarked thar legislation of this kind was conditional legislation and it only becomes the fulfilment of those conditioos and that complete on could be left to an external authority. In spite of expressing the view of the majority of the their disapproval of Full Bench in applying the principles of the doctrine of agency and in treating the Indian Legislature as an agent of their Lordships Imperial Parliament, that the exercise of the clearly expressed legislative will and judgment could not be transferred to an external authority and that it was for the proper its own legislature determination judgment as the opinion to exercise conditions S.C.R. SUPREME COURT REPORTS 901 place, persons, laws and powers. It ·seems to· me that though their Lordships were not prepared to assent to the proposition that the matter should be dealt with on principles deducible from the doctrine of the law of they were also not prepared to depart agency, the rule that apart from the doctrine of the law of agency a person to whom an office or duty is assigned or entrusted by reason of a special qualification cannot lawfully devolve another unless expressly functionaries charged with the performance of public duties have to execute them accordingly to their own judgment and discretion except to the extent that in is necessary employ ministerial officers tp effec.tively discharge those duties. . upon to do. Public that duty authorised · 1951 In re The Delhi Laws Act, 1912. etc. Mahajan/. For the reasons given above presumably the Privy Council was not prepared . to lay down that delegation of legislative power wa:s a content of the power itself. It contended itself by holding the law valid under the name and style of conditional It is diffi cult to conceive that the Privy Council would have that delegation of hesitated in saying so if it felt legislative power was a content of the power itself. this connection may be made Reference to a in the judgment of Markby J. which reads passage thus:- legislation. transfer legislative legislation that power subject in India. But important "The various Parliamentary statutes nowhere confer any express power upon the Indian Legislature to change the machinery of they do confer restrictions the executive government. Mr. Kennedy boldly claimed for the Indian Legislative Council the power the Lieutenant functions Governor of Bengal. Indeed as I understand him, the only restriction he would attempt was that the Legis lative Council could not destroy legislate though I see no reason why he should there. The Advocate-General did not go so far. There are no words in the Acts of Parliament upon which the legislative authority could be made one class of cases and not in others because I do not its own power transferable ~ 1951 In re The De/4i l.Aws Act, 1912, etc. MohajanJ. 902 SUPREME COURT REPORTS [1951] for a moment suggest that every time a discretion is entrusted to others there is the transfer of legislative authority. Every Act of the legislature abounds with examples of discretion entrusted to judicial and execu tive officers of government, the legality of which no one question, legislature confer on the Lieu however, tenant-Governor legislative power?' Answer : 'It is a general principle of law in India that any substantial delegation of legislature legislative authority by of this countty is void'." think of questioning. The broad 'Can the · It was then contended that the illustration cited in the concluding part of the judgment of their Lordships their approval of the proposition suggests legislative power could be delegated conferring power to modify a statute passed by itself. This contention seems to be based on a misapprehen· the Full sion of what Eench decision of the Calcutta High Court in Empress v. Burah & Book Sing(') Markby J. made following observations while dealing with these illus trations :- their Lordships decided. In legislature "Lastly it was argued that the Indian Legislature had done so (delegated power) for a long series of long list of Acts pa.ssed between 1845 years, and a and 1868 has been handed in to us, all of which, is said, must be treated as instances of delegation of legislative authority and Act XXII of 1869 should treated. The Acts contained in the list do not be so (as was asserted) so many appear to me to afford dear and undisputed instances of I may observe lative authority. these and many other Acts contain provisions which for the making of rules by executive government conformity with the Act we have the highest authority in Biddle v. Tariney Churn Baneri«(2 ) that the power to make such rules may be conferred without dele- gation of legislative authority .......... The list of Acts does not seem to me to show any clear practice of transferring legislative authority." (I) l.L.R· 3 Cal. 63. transfer of (2) I Tay, & Bell, 390, 1951 In re The Delhi Laws Act, 1912, etc. MahajanJ. S.C.R. SUPREME COURT REPORTS 903 Ainslie J. specifically considered the provisions of section 39 of Act XXIII of 1861 and the meaning of the words "pro "reservations", visos" and said as follows :- "limitations" it may restriction, territory not subject to the general "The provisions of section 39, Act XXIII of 1861, do not affect my view of this matter. This sec tion allows a local Government, with the previous sanction of the Governor-General in Council, to annex limitation, or proviso proper when extending the Code of Civil Procedure to regulations; but this is merely another form of delaying the extension of the Code. So far as the Code obtains operation, it is still, because the extension is pro tanto, a carrying out of the intention of the supefior legisla ture that this shall be sooner or later the law in particular tract of country. As I read the section, no power is given to amend the law itself; it is only a power to keep some portion in abeyance or to make its it, operation contingent on which again is only another form of postponing its full operation." something external this construction of No doubt was cast on the Privy Council language of section 39 either in the minority judgment of the High Court or in the judgment of their Lordships of the Privy Council. In view of this clear expression of opinion of Ainslie J. as to the meaning of the lan guage used in section 39 and not disapproved by their Lordships of it cannot with any force be contended in Burah's case(1) gave approval to the proposition that the power the power of the legis amendment or modification of result of In my opinion, lature decision it was decided to condition proposition judgment on the question as to what the law should be to an external agency. This case d0es not support the Indian Legislature had power legislate. This case that it could delegate the exercise of in Burah's case(1) is no authority their Lordships the Act of conditional legislation included itself. {1) SI.A. 178. 1951 In re The Delhi Laws Act, 1912, etc. Mah~jlmJ. 904 SUPREME COURT REPORTS [1951] proposition that amendment of a statute of the legis the subject lature itself is a matter which could form of delegated Indian legislation. The expression Legislature could not arm with legislative power a new legislative body not created by the Indian Councils Act only means that it must function itself in making laws and not confer this power on any other body. In other words, it could not create a person having co-ex legislation and could not clothe it tensive power of with its own capacity of law making, that is in laying down principles and policies. The possession of plenary powers within the ambit laid down only means that within that particular field it can make any laws on those subjects, but it does not mean that it can shirk its duty in enacting laws within the field by making a law that it shall not itself operate on that field but somebody else will operate on its behalf. In my opinion, their Lordships' judgment amounts though within the field prescribed it has the largest power of legislation, yet at the same time it is subject to the condition that it cannot abandon formally or virtually its high trust. saying the Municipal Act, authorising him Hodge v. The Queen(') was the next Canadian case decided by the Privy Council in 1883. The appellant Hodge, was the holder of a liquor licence issued on 25th April, 1881, by the Board of Licence Commissioners for the City of Toronto under the Liquor Licence Act of the Province of Ontario in respect of the St. James Hotel. He was also the holder of a licence under the authority of carry on the business or calling of a keeper of a billiard saloon with one table for hire. The appellant did on the 7th May, 1881, unlawfully permit and suffer a billiard table to be used and a game of billiards to be time prohi played bited by the Liquor Licence Act liquor It was urged that the Ontario Assembly was not therein. competent to legislate in regard to licences for the sale of liquor and that even if the Ontario legislature could, it could not delegate its power to Licence Commissioners. thereon, in his tavern during for "sale of {I) 9 App. Cas. 117. S.C.R. SUPREME COURT REPORTS 905 to define offences and legislative authority but only of The local legislature had assigned to three officials the impose penalties. This contention was met with the plea that there w.t.> nv delegation of power to make by-laws. The Court of the King's Bench legislature had no power Division held that the local to delegate in the matter and that such power could legislature alone. The Court of be exercised by it was upheld by Appeal reversed their Lordships of the Privy Council. It was found that sections 4 and 5 of the Liquor Licence Act were intra vires the constitution. judgment their Lordships made the following observa tions:- this decision and the course of In l!ISl 11 Dee Laws Act, 1912, etc. Maha}anJ. the provincial legislatures. They are "It appears to their Lordships, however, objections thus raised by the appellants is founded on true character and an entire misconception of position of no sense delegates of or acting under any mandate the British Imperial Parliament. When North America Act enacted that there should be a legis legislative Assembly lature for Ontario, and that its should have exclusive authority to make laws for Province and for provincial purposes in relation to matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a muni cipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enact ment into operation and effect. It is obvious that such an authority is ancillary to for varying them out might legislation, and without details and machinery it an attempt 1951 In re The Deihl Laws A.ct, 1912, etc. MahajanJ. 906 SUPREME COURT REPORTS [1951} fail. judgment of The very become oppressive, or absolutely the Court of full and very elaborate Appeal contains abundance of precedents legislation, entrusting a limited discretionary autho rity to others, and has many illustrations of its neces sity and convenience. It was argued at the· bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, de<>troy the agency it has created and set up another, or take the matter directly its own hands. How far it shall seek the . aid of subordinate agencies, and how long it sliall continue them, are matters for each legis lature, and not for courts of law, to decide." is ancillary that power to amend or the proposition This case, in my opm10n, decided the following points :-(1) Power to make by-laws or regulations as in the enactment and with the to subjects specified object of carrying that enactment into operation and to !llunicipal institutions or transferred effect can be local bodies. (2) Such an authority legislation. (3) Giving such power of making regula to an tions to agents and delegates does not amount effacement of the legislature itself. The case does not sanction modify a statute passed by the legislature itself be delegated. Power of amending a statute or altering it cannot . be described as ancillary to legislation, nor is such a power within the ambit of the doctrine of subsidiary It is significant Lordships of the Privy Council never gave approval to the wide proposition that what the legis lature itself can do, it can employ an agent with co extensive powers for doing the same. They have been careful in saying to what extent and in what measure delegation was permissible. All that they sanctioned was delegation of authority ancillary to legislation or delegation to municipal institutions to make regulations and by-lai.vs and no more. It was not held by their Lordships that power to declare what the law shall be could. ever be delegated or that ·~cch delegation will be intra vires the Parliament of Canada or of the legislation. S.C.R. SUPREME COURT REPORTS 907 It was contended that by Indian Legislature. cation their Lordships held of effacing itself the legislature could delegate. opinion, a construction on Lordships while that was placed bcf ore them by the learned counsel. that short ln my for placing such they were combating an argument justification language this case is no 1951 The De/bl Law1Act,1913. etc. Ma/la/1111 I. to provide they elect. In re The Initiative -and Referendum Act(1) is the the Privy Council. third Canadian case decided by the Initiative and Referendum Act of Manitoba By that the the Legislative Assembly sought laws of the province will be made and repealed by the direct vote of the electors instead of only by the Legis lative Assembly whose members It was the powers conferred on a provincial legis lature by section 92 include the power of amendment the province except as regards the office of of Manitoba ex Initiative cludes this was legislature. The Act was ultra vires therefore held void. Lord Haldane who delivered· the opinion of the Privy Council, after having found the Act was ultra vires legislature, made following observations :-:- the Lieutenant-Governor wholly legislative authority set up and the Lieutenant-Governor and and Referendum Act the constitution of the provincial "Having said so much, their Lordships, following their usual practiCe of not deciding more strictly necessary, will not deal finally with another the validity of difficulty which those who contend for this Act have to meet. But they think it right, as point has been raised in the court below, to advert to it. Section 92 of the Act of 1867 entrusts the legisla tive 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 $0 ample as in Canada. that enjoyed by a provincial its own capacity intact, seek could, while preserving lewslanu:e (I) (1919] A.C. 935. 12-3 S.C.lndia/68 1951 Ill Te f'Ae Delhi law• Act, 1912, etc. ·Mahajan I. 908 SUPREME COURT REPORTS [1951] the assistance or subordinate agencies as had been done when in Hodge v. The Queen(') the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating that it can . create to taverns; but it does not follow and endow with its own capacity a _new legislative power not created by. the Act to which it owes its own than draw existence. Their Lorqships do no attention to the gravity of the constitutional questions which thus arise." These observations reiterate the ratio of the decision in Hodge v. The Queen(') and they do not amount to saying that power to amend or modify Acts of the legislature itself could be given by delegation of legis lative power. in clear and unambiguous language laid it Lordships down dtat section 92 entruJts legislative power to its legislature only and to no legislature and other. The principle underlying Lord Haldane's remarks is thus stated in Street's book on the Doctrine of Ultra Vires, at page 430 -· is, however, important It "The decision . in the statute was this case, ultra vires, did not turn precisely on the ground of delegation, but these remarks suggest that a legislature will not ordinarily be permitted to shift the onus of legislation, though it may legislate as to main princi ples and leave details to subordinate agencies." Reference may also be made to the case of King v. Nat BellLiquors Ltd.(") The Liquor Act (6 Geo. V, c. 4, Alberta) was held intra vires the power of the province under the British North America Act, 1867, and it was found that it was not ultra vires by reason- of being passed pursuant to a popular vote under the Direct Legislation Act (4 Geo. V, c. 3, Alberta). Here the law was made by the provincial · legislature itself and it was passed in accordance with the regular procedure of cite Houses of Legislature. This cast. is no authority taiscd by dte learned Attorney Gcncral. (I) 9 App. Case 117. the contention (2) (I 922) 2 A. C. 128. 19Sl In re The Delhi Laws Act, 1912, etc. M(/lajanl. i S.C.R. SUPREME COURT REPORTS 909 reported The next Canadian case decided by the Privy Council in Croft v. Dunphy(1). Anti smuggling provisions enacted operating beyond torial limits which had long formed part of Imperial regarded as customs legislation and presumably were necessary for its efficacy were held valid and within the ambit of the constitutional powers. This case does· not suggest any new line of thought, not already con sidered in Queen v. Burah(2), or Hodge v. The Queen( 3 ). Shannon v. Lower Mainland Dairy Products Board( 4 ) is a case in which the question arose whether Natural Products Marketing Legislation Scheme of control or regulation and imposition . of the provincial the provincial it was not within legislature Lieutenant-Governor in Council or to give him further power of delegation. This contention was met with the following observations :- legislation. the powers of legislative licence fees were It was argued delegate subversive of "The objection seems rights the provincial legislature enjoys while dealin.i; It with matters within its ambit. innumerable occasions on which legis enumerate lature has entrusted similar powers to various persons and bodies. On the basis of past practice the tlelega tion was upheld." is wmecessary So far as I have been able practice was · in ancillary powers to carry on the policy of a statute. the past respect of conferring necessary and to ascertain, Reference was also made to the validity of section 133 of to Powell v. Apollo the year 1885. There the Candle co.C) decided question arose as Customs Regulating Act of 1879 which authorities the levy of certain duties under an Order in Council. The the constitution. It was section was held argued that the power given to the colonial legislature to impose duties was · to be executed by themselves (1) [1933) !A.C. I S6. (2) SI.A. 178. (3) 9 App. Cas. 117. (4) [1938) A.c. 708. (5) 10 App. Cas. 282. int1·a vires IPSI Tare De Delhi 1-1.fcl,1912, el&. Mahajan/. 910 SUPREME COURT REPORTS (1951) only and could not be entrusted wholly or in part to the Governor or anybody else. This objection was answered in the following way :- "The duties levied under the Order in Council are really levied by authority of the Act under which order was issued. The legislature has not parted with its perfect control of the Governor and has the power the power entrusted." of withdrawing or altering On this construction of the power delegated, the delegate was doing was done under authority of the Act no question of delegation of law making power arises. Co-operative Fort Frances Pulp & Power Co. v. Monitoba Free /apanese Press('), Canadians v. Attorney-General for Canada('), and Co operative Committee v. Attorney-General of Canada(') cited at the Bar are not helpful in giving an opinion on the present matter. Committee Four recent Canadian cases were cited for the ex• treme view th; it short of effacing itself Parliament or a legislature has t.he widest power of delegation and that it acts intra vires the constitution in doir18 so. The first of these cases is In re George Edwin Gray('). The case was under section 6 of the War Measures Act, 1914, which Governor-General in Council for the cflicient prosecu tion of the war. The decision was given by a majority of four to two and judgment the following observations occur :- confer.red very wide powers on in the majority ''The practice authorizing is well-known and its administrative ·bodies to make regulations to carry out the objectives of an act instead of setting out all details in the Act is unquestioned itself hut it is said that the power to make such regulations could not constitutionally be granted to such an extent as to enable the express provisions of the statute to be the constitution amended or that under repealed; legality (I) [19231 A.C. 695. (2) [l947] I D.L.R. 577. (3) (1947) A.C. 87. (4) 57 S.C.R. (Canada) 150. 1951 In re The Delhi J.aw3 Aci, 1912, etc. MahajanJ. S.C.R. SUPREME COURT REPORTS 911 it can delegate functions, within laws, the court to make them and to exetute the Governor Parliament alone General to interpret them, then it follows that no one of the fundamental branches of government can constitutionally either delegate or accept the function of . any other branch. In view of Rex v. Halliday(1 ), I do not Parliament be maintained. broad proposition can reason cannot indeed abdicate able ' limits at any its power to execute government orders. Such powers must to determination at any rate by necessarily be subject Parliament and needless to say executive under its delegated authority must fall within legislative pronouncement by which the ambit of the this authority that Lord that the British Dunedin Constitution has entrusted to the two Houses of Par the King an absolute liament subject circumstance, to which may be compelled by· a judicial obedience · body. That undoubtedly limitations · country. Nothing in the · Act imposes any It is measured. in Rex v. Halliday{1) that rhe acts of to assent by untrammelled the case is not on the authority of the Parliament." to amend . limitations the power it amounts to an abdication of To the proposition stated in the opening part of quotation there can be no possible objection. But when the learned Judges proceed to lay down the rule in the constitu that in the absence of any tion Parliament can delegate and repeal laws made by· itself to an external authority its functions unless does not in my humble opinion seem to be sound. In the first instance, these observations seem inconsistent with the fundamental proposition that a duty entrust to a particular body of persons and which is to be performed according to certain procedure by that body can be entrusted to an external agency which is not controlled by any rules of procedure in the perform ance of that duty and which would never have been it. Moreover, abdication by a entrusted to a legislative body need not necessarily amount (I) (1917) A.C. 260. to perform 1951 In re The Delhi Lowu4.ct, 1912, etc. -· Mahajan/. 912 SUPREME COURT REPORTS [1951] legislate on to somebody else complete effacement of it. Abdication may be partial or complete. It would certainly amount to abdication when in respect of a subject of legislative list that body says it shall not legislate on that subject but would it. That would be delegation of the law-making power which is not authorised. There is no justification for the assump tion that the expression "abdication" is only applicable when there is a total effacement or a legal extinction of such a body. In my opinion, it is the abdication of the power to legislate when a legislature refuses perform its duty of legislating on a particular subject and entrusts somebody else to perform that function for it. "Abdication" according to the Oxford Dictionary means abandonment, either formal or virtual of sove It is virtual abandonment reignty or other high trust. of the high trust when the person charged with trust says to somebody else that the functions entrust ed to him in part or whole be performed by that other person. Be that as it may, the point of view contained in the above quotation cannot be supported on the decisions of their Lordships of the Privy Council dis-. judgment. Duff J. cussed .in the earlier part of this stated his view in the following way :- the subordinate body "The true view of the effect of this type of legis in which a law lation is making authority is vested by it is intended to act as that the the agent or the organ of the acts of the agent take effect by virtue of the antecedent declaration that they shall have the force of law." legislature and These observations, in my opinion,-and· I speak justified on any with great respect-cannot again be juristic principle. In the matter of making law there cannot be an anticipatory sanction of a law not yet born or even conceived. Moreover, an organ of the legislature for making laws can only be created by constitution and not by the legislature which is itself that power by the constitution. The bonafided with learned dissenting Judge in this case observed that a wholesale surrender of the will of the people to any S.C.R. SUPREME COURT REPORTS 913 autocratic power would not be justified either in cons titutional law or by the past history of their ancestors. These observations were made in respect df the power of amendment or repeal conferred on the delegate. As I have pointed out earlier in this judgment, such a power has not even been exercised by the British Parliament and the Donoughmore Committee recom mended that its exercise as · far as possible should be abandoned. The decision in this case, in my opinion, is not an apposite authority for arriving at a correct conclusion on the question involved in the reference. 19Sl In rel The Del/ti Law8 Act, 1912, etc. Mahajan/. It was held the regulations intra vires, and the constitution. the executive government The next case to which our attention was drawn is Ref. re Regulations (Chemicals) (1). This case arose in connection with respecting chemicals made pursuant to powers conferred by the Department of Munitions and Supply Act and by the War Measures Act. The question was whether these regulations were that except ttltra vires in one part the regulations were the War Measures A<:t does not was observed attempt transform a legislature in the sense in which the Parliament of legislatures Canada and the legislatures of provinces are that the regulations derive legal force solely from the War Measures Act. Reliance was placed on Queen v. Burah(2) and Hodge v. The Queen(3). One of the learned the maxim delegatus non potest delegare is a rule of the law of agency and has no application to Acts of a power of delegation being absolutely the War Measures Act the circumstances for which bas been enacted so as to prove a workable Act, power must be deemed to form part of the powers conferred in that Act. Another by Parliament learned Judge observed that the maximum was not confined to the law of agency alone but it had no application to legislation. A third learned Judge, however, said that the maxim quoted above also had application to grants of legislative power but that the Parliament has not (.I) [1943] S.C.R. (Canada) t. (2) 5 I.A. 178. essential Judges observed (3) 9 App. Cas.117. legislature, 914 SUPREME COURT REPORTS [1951] 1951 Tle De/Al LoWs Act, 1912, etc. ·-Maha/an J. effaced itself, in the ultimate analysis it had full power to amend or repeal the War Measures Act. In my opinion, for the reasons already stated, the observa tions in this case also go beyond the rule laid down by their Lordships of the Privy CoUllcil _in Queen v. Burah(') and Hodge v. The Queen(2 ), and are not a true guide to the solution of the problem. Our attention was also drawn• to Attorney-General of Nova Scotia v. Attorney-General of Canada('). This case does not lend full support to the view taken in the cases cited above. Therein it was laid down that neither the Parliament of Canada nor the legislature of any province can delegate one the other any of the legislative authority respectively conferred upon them by the Bri tish North America Act, especiall)' by sections 91 and 92 thereof. The legislative authority conferred upon Parliament and upon a provincial legislature is exclu sive and in consequence, neither can bestow upon or accept power from the other, although each may dele gate to subordinate agencid. On the question of delega tion of legislative {lOWer, Justice remarked that "delegations such as were dealt with in In re George Edwin Gray(') a.nd in Ref. re Regulations ( C hemico/s )(") under the War Measures Act were dele gations to a body subordinate to Parliament and were of a character different from the delegation meant by the bill now submitted to the courts.". In this case on the general question of delegation the Supreme Court did not proceed beyond the rule enunciated In re The Initiative and Referendum Act(6 ), or what was stated in Hodge v. The Queen(1). learned Chief ). The Lastly reference may also be made to the case of Oimuit v. Bazi( 8 learned Attorney-General placed reliance on certain obiter dicta of Davies J. to the effect that the Parliament of Canada could delegate its legislative power and such delegation was within its power. The learned Chief Justice did not express (I) 5 l.A.178. (2) 9 App. Cas.117. (3) (1950] 4.0.L.R. 369. (4) 57 S.C.R. 150. (5) (1943) l D.L.R.248. l6) [1919) A.C. 935. (7) 9 App. Cas.117. (8) 46 S.C.R.L. (Canada) 502. S.C.R. SUPREME COURT REPORTS 915 any opinion on the point; while Indington J. w_as not to subscribe to this view. The other Judges prepared In my opinion, these did not consider the point at all. remarks, the soundness of '!"hich was doubted by other Judges, are not of ·much assistance to us in this case. 19Sl In re The De/hi Laws Act, 1912, etc. MahajanJ. Having examined the Canadian cases on this subject to a passage it seems pertinent at this stage to the Doctrine of Ultra vires, which from Street on legislatures and states language appositely brings out used bv the Privy Council in the cases that the legis lat~res are not Imperial Parlia ment:- true position of colonial the meaning of the agents of the scope of to power of delegation. "However true it may be that colonial legislatures arc not mere agents of the Imperial Government, it is also true that they are not unfettered principals. Within the terms of their constitution they are limited at least as to subjects, and area, and, to the extent suggested, per If an ultra vires haps also as colonial statute may be ratified by the Imperial Parlia ment, there is an implication of agency'. To do anything outside their constitution, as when the the Province of Dominion of Canada established Manitoba (1), and imperial statute is required. It would legislature cannot, as an ordinary prin appear cipal, a broad . view, non-sovereign authority(2). Taking legislatures are, and so long as they do not repudiate constitutions must · . remain, delegates of Imperial Parliament. They have been so regarded by the Privy Council(3). But just as in the case of prerogative it would be impolitic to apply a formu.la too strictly, so also the law of agency must be accom the colonies, or modated to meet the solid fact independence." the most important of them, enjoy real that a ratify acts purporting to be done under The decisions of American courts on the constitu tionality of delegation of legislative power are, as {I) 34 Viet. c. 28. (2) Commonwealth v. Colonial Ammunition Co. 34 C.L.R. 198. n1. (3) [1906) A.C, S42, [1914] A.C. 237, 2S4. • 1951 111 ,~ The Delhi Low1Act,1912, etc. MahajanJ. 916 SUPREME COURT REPORTS (1951] the case of other countries, by no means uniform. Judicial opinion has sometimes taken a strict view against the . validity of such delegation and on other occasions it has liberally upheld it as constitutional on grounds which again by no means are based on logical deductions from any juristic principle, but generally on grounds of convenience or under the doctrine of "determining conditions" and sometimes on historical considerations. · The Supreme Court of America, has however, never departed from the doctrine that legis lative power cannot be delegated to other branches of government or to independent bodies or even back to the PC?ple. The rule against delegation of legislative power is not based merely on the doctrine of separa three state departments, tion of powers between legislative, executive constitution. This doctrine puts a restraint on delega Prohibition against delegation to independent bodies and commis rests on Coke's maxim, delegatus non potest though usually held applicable delegare. The maxim, to the law of agency embodies a sound juristic principle to the case of persons entrusted with the applicable performance of public duties and the discharge of high trusts. The restraint on delegation back to the people is, tied up with some notion of representative democracy. to other branches of government. judicial, evolved Reference was made to a number of decisions of the the arguments and quotations Supreme Court during from several books on constitutional law were cited. It is not useful to refer to all of them in my opinion, but a few important ones may be mentioned. that needs mention The first American case v. Southard('), a decision of Marshall C.J., Waman given in the year 1925. The question concerned the validity · of certain rules framed by the courts. The learned Chief. Justice observed that it .could not be contended that Congress could delegate to courts or to tribunal powers which are strictly or ex any other clusively legislative. (I) 6 Law Edn.262. 19Sl In re The Delltl Laws Act, 1912, etc. Mahajan/. S.C.R. SUPREME COURT REPORTS 917 is one of In Kilbourn v. Thompson(1), it was held· that judicial power could not be exercised by the legislative department. Field v. Clark(2) leading cases in America on this subject. In this case power to the executive to impose certain had been delegated duties. Delegation of power was upheld on the policy of the law having been deter ground mined by the details could be left to the President who could not be said to legislative will but was merely be exercising any authorised to execute the law as an agent of the lature in executing its policy. was a principle universally recognised as vital to the system of government that Con maintenance of gress could not delegate President. legislature, working out of legislative power It was asserted ). In Springer v; Phillipine lslands(3), the same view was expressed. On similar lines is the c1ecision in U.S. v. Gravenport etc. Co.( 4 It was observed that after to fill up details fixing a primary standard, power could be devolved by appropriate legislation. The pro vision attacked there was held as not delegation of to make legislative power but merely giving power administrative v. U.S.(") cerned compensation payable to Judges of the Supreme Court and it was held that it could not be lawfully diminished. remarked that the object of the creation of the three departments of government was not a mere matter of convenience but was basic to avoid commingling of duties so that acts of each may not be called to have been ·done under the coercive influence of the other departments. rules. O'Donouhue question It was The decision in Hampton & Co. v. U.S.(6) is the oft following extracts quoted judgment of Taft C.J. The from that judgment may be quoted with advantage :- "It is a breach of the national fundamenal law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch, or, if by (l} 103 U.S. 168. (2) 143 U.S. 649. (3) 277 U.S. 186. (4) 287 U.S. 77. \5) 289 U.S. 516. (6) 276 U.$. 394. _, 1951 /•;e T1te Delhi Ltd!~ Act, 19'12, etc. NallajanJ. 918 SUPREME COURT REPORTS [1951] the other law it attempts to invest itself or its members with either executive power or judicial power. This is not to say three branches are not co-ordinate parts of one government and that each in the field of duties m~y not invoke the action of branches in so far as the action invoked shall not be an assumption of t/ie constitutional .field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to inherent necessities of govern commonsense and the mental co-ordination. The field of Congress involves all and many varieties of legislative action and Con· gress has found it frequently necessary to use officers of the executive branch, within defined limits, to secure the exact effect intended by its acts of legislatipn, by to make public regu vesting direction in such ollice'rs lations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations ...... Congress may feel itself unable conveniently to determine exact ly when the legislative power should become effective, because dependent on future condi tions, and it may leave the determination of such time to the decision of an executive,. or, as often happens matters of State legislation, it may be left to a popular vote of th~ residents of a district to be affected by legislation." its exercise of the Supreme Court on Panama Refinipg Co. v. U.S.(') is another leading decision of this subject. In Benoari Lal Sarma's case(') considerable reliance was placed by Varadachariar J. on this decision for arriving at his conclusion against non-delegation of power India. The following observations from the judgment of Hughes C.J. may appositely be cited :- is not permitted to abdicate, or to "The Congress functiom transfer to others, legislation with which must often be adapted to complex conditions involving vested. Undoubtedly legislative essential (I} 293 U. S. 388. (2) (1943] F.C.R. 96. S.C.R. SUPREME COURT REPORTS 919 the Congress a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying the necessary resources of flexibility and practicality, which will in laying down enable policies and establishing standards, while leaving the making of subordinate selected instrumentalities rules within prescribed the determination limits and of facts the policy as declared by the legi~ to which lature is to apply." to perform function 19Sl In re The Del,,i L!livs kt, 191~ etc. Ma•afa11 /. Cardozo J. observed as follows :- "An attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to standards is in effect a . . ,, rovmg comm1ss10n. . to effect it was held is to the same effect. In Opp Cotton Mills v. Administrator(1), it was legislature power could not be. that essential finding agencies could be created. delegated but fact Iri Lichter v. Yakus v. U.S.(2) U .S.(3) that a constitutional power implies a power of delegation of authority under it sufficient its purpose. This power in connection with war powers especially significant under which the exercise of discretion as to methods to an effective to be employed may be essential use of which Congress must specify its policies and standards in order the administrative authority granted may not be an unconstitutional delegation of its own legislative power specifica tion. its war powers by Congress. The degree is not capable of precise legislation. by to refer is against delegation of the Congress independent commissions. indicate that judicial These decisions opinion in America essential to administra powers · of tive bodies or even It is unnecessary the passage that were quoted from the different text-books which apart from the opinions of text-books writers merely sum up (I) 312 U.S. 126. (2) 321 U.S. 414. (3) 334 U.S. 742. to all - 920 SUPREME COURT REPORTS [1951] 1951 l•re The Delhi Laws Act, 1912, etc. Jla/rQjanJ. the result of , the decisions given by the various courts on this point. This result has been, in my opinion, very accurately summarized by Crawford in his book on Construction of Statutes .at pages 25, 26 in the following words and represents the present state of constitutional law in that country on this subject :- "Legislative power has been delegated, as a rule, not so often as an effort to break down general the triparte theory qf, the separation of powers, but from necessity and fior the sake of convenience. More and more with a social system steadily becoming the legislature has been obliged focreasingly complex, in order to legislate effectively, efficiently and expedi tiously, to delegate some of its _ functions, not purely to other agencies, particularly legislative in character, to administrative officials and boards. Most prominent JJmong the powers thus delegated have been the power to Mcertmn facts, and the power to promulgate mies and regulations. Many of the other delegated powers, upon analysis, fall within one of these two major or basic classifications. in given in broad general terms. legislature must declare law and fix to guide to execute the ollicial or indefinite or general. "So far, however, as the delegation of any power to an executive official or administrative board the policy concerned, of the legal principles which are cases and must provide a to control the board em standard law. This standard must powered ~t may be not be It is sullicient if the legislature will guide the executive or administrative official. ..... From iliat the courts these typical criterions, upholding considerable exercise is established. legislative delegations, Such delegations are not subject to the obieetion that legislative power has been unlawfully delegated. The filling in of mere matters of detail within the policy of, and according legal principles and standards established by the legislature is essentially ministerial rather than legislative in character, even if considerable it is apparent liberality if a standard lay down an intelligible principle tc.wards 1951 In re The Delhi laws Act, 1912, etc. Mahajan I. S.C.R. SUPREME COURT REPORTS 921 discretion is conferred upon In fact, must be trative officers, under legislative standards." authority. the reasonable discretion of adminis the method and manner of enforcing a left to the delegated On one point, however, there is uniformity of judicial amongst decisions in the American courts and text-book writers. Delegation of general power laws has uniformly been held as to make and repeal unconstitutional: Victoria etc. Co. & Meakes v. Dignam(1) ]. It was there instance could be cited of a pointed out that no the Supreme Court of America in which decision of Congress had allowed or empowered the executive to make regulations or ordinances which may overreach exisling statutes. [vide observations of Dixon J. In Moses v. Guaranteed Mortgage Co. of New YorkC) a section of the Emergency Banking Law of 1933 was held unconstitutional delegation of power. There a banking board was given power alter or amend rules and regulations inconsistent with and in contravention of any law. In his second edition on Administrative Law, at p. 110, Walter Gellhorn states as follows :- to adapt, rescind, . jn effect, nothing more "Delegations of powers to alter or mo<lify statutes a the mere use of the terms the statute, has brought unex are, dispensing, suspending or rule-making powers, or combination thereof. Yet 'alter' or pected repercussions from courts and commentators." than delgations of 'modify' statute In a number of decisions mentioned in this book the courts have held that delegation of power to alter or is unconstitutional delegation of modify a power. As observed by Prof. Salmond (Jurisprudence 10d1 Edn. p. 159), a legislature cannot be amended by any other supreme body than the supreme legislature itself. In Rowland Burrow's Words and Phrases, the word "modify" has been defined as meaning "'vary, extend or enlarge, limit or restrict." (I) 46 C.L.R. 73. In Oxford Dictionary one of legislative Act passed by (2) 239 App. Div. 703. l~SI 111 r• 'file Qelhi U'lllS ~ct. 1912, e_tc. 922 SUPREME COURT iEPORTS (1951) radical is "the m;iking of partial meanings of this word changes or altering without transformation." The same dictionary gives the following meaning to the word "modific, at.ion" : "the result of such alteration a modified form or variety." In Stevens v. General Steam Navigation Co. Ltd.(') it was stated that modi fication implies an alteration. It may narrow or enlarge the provisions of a former Act. In my opinion, the in American decisions that delegation of authority to modify an Act of the Congress is unconsti the meaning of the tutional expression "modify" is not liked by .Before concluding, it is opposite to Walt.er Gellhorn. quot.e a passage from Baker's Fundamental Law which states the principle on which the American decisions are based and which coincides with my own opinions in respect of those decisions. The passage runs thus : is fully borne out by this view though required the power of voting judgment, having due regard for "The division of our American government into three co-ordinate branches necessarily prevents either of the three departments from delegating its authority to the other two or to either of them, but there are legislative · power cannot be other reasons why delegated. Representative government persons chosen to exercise and enacting laws, the most important and sacred trust known to civil government. The representatives of the to exercise wise discretion and people are the purposes and needs of the executive and judicial departments, the ability of the tax-payers to respond and the general It follows as a self-evident propositi<m public welfare. that a representative legislative assembly must exer cise its own judgment; that in giving its consent to a tax affirmatively determine the amount of the tax by fixing a definite and certain rate or by fixing an aggregate amount on the tax-payers and that in enacting a law it must so far express itself that the Act when it leaves the therefore lative department is a complete law. It is that a legislative body a maxim of constitutional law distinctly it must levied (ll (1903) I K.B. 890. S.C.R. SUPREME COURT REPORTS 923 If it was competent for a cannot delegate its power. representative legislative body to delegate its power it would be open to make the delegation to the executive which would be destructive of representative govern ment and a return to despotism. Not only the nature of the legislative power but the very existence of represent ative government depends upon the doctrine that this power cannot be transferred." 19S1 In re The De/hi Laws Act, 1912, etc. Mahajan/. The Australian Constitution follows the American model (63 & 64, Vic., c. 12, passed in July 1900). The legislative power of the Commonwealth is vested in a Federal Parliament. The executive power is vested in the Queen, while the judicial power is vested exclu sively legislative the courts. The extent of power is stated in sections 51 and 52 of the Constitu tion Act. The residuary powers vest in the States. that all goods The first Australian case c;ited to us is Baxter v. Ah Way(1). This was decided in the year 1909. It was held that section 52, sub-section (g), of the Customs Act of 1901, which provides the importation of which shall be prohibited by proclamation shall be prohibited imports, is not a delegation of legislative power but conditional power conferred on Parliament by section 51 of the It was further held that prohibition of Constitution. importation is a legislative act of the Parliament itself, the effect of sub-section (g) being to confer upon the Governor-General in Council the discretion to declare the prohibition will apply. In to what class of goods the course of his judgment the learned Chief Justice observed as follows :- legislation and is within "The argument foundation that this power cannot be delegated by the legislature is to be found in the case oL . . . . . . . . . . . . . It is of course obvious that every legislature does in one sense delegate some of its functions ........ Nor is it to the purpose to say that the legislature could have done the thing itself. In one sense this is delegation of Of course, it could. authority because to do en s c.1.aR. 626. 13-3 i;.c. India/69 it authorizes another body 924 SUPREME COURT REPORTS (1951] 1951 ln re The Delhi Laws Act, 1912, etc. Mah"aianJ. the day to contend It is too something which it might have done itself. late in that such a delegation, if it is a delegation, is objectionable in any sense ..... . The objection cannot be supported <ln the maxim delegatus non potest delegare or on any other ground . ....... There being no objection to conditional legisla- tion being passed, this is a case of that sort." O'Connor J. said as follows:- "Power is given in section 51 in respect of trade and commerce with other countries on taxation and there is also power to make laws incidental to the It is a exercise of any power vested in Parliament. the constitution that every fundamental principle of included thing necessary to the exercise of a power in the grant of a power. Everything necessary to the power of legislation must be effective exercise of the constitution with that power .......... Exercise of such discretion cannot be said to be making of the law." to be conferred by Higgins J. said :- "According to my view, there is not here in fact any delegation of the law-making power." impugned statute was This case rests on the principle that legislative power the ground justified on legislative If delegation of it was wholly unnecessary form of conditional cannot be delegated and it was for that reason of conditional legislation. power was permissible, justify legislation. the enactment as a the validity of that case concerned Roche v. Kronheimer(' ), decided in the year 1921, was argued by Dixon (as he then was). The question the Treaty of Peace Act, 1919, which by section 2 authorized the the delegation of making of powers on certain persons. The legislation was held constitutional. validity was attacked on the following grounds : "It is not conditional legislation as in the case of Baxter v. Ah Way( 2 ), but it bestows in the executive full the argument by Mr. Dixon, regulations conferring In (I) 29 C.L.R. 329. (2) 8 C.L.'R.. 626. S.C.R. SUPREME COURT REPORTS 925 legislative power upon a particular subject. Vesting of legislative power to any _other hands than Parliament is prohibited. The making of a law that another body may make laws upon a particular subject matter is not making a law on that subiect." The decision was given in these terms :- 19S1 In·re The Delhi Lat9a Act, 1912, etc. Mahajan/, • "It was said that if Parliament had authority legislate, it had no power to confer that authority on the Governor-General. On this topic we were referred to Hodge v. The Queen(1) and Rex v. Halliday(2) and In re The Initiative and Referendum Act(3), and much interesting argument was devoted to the real meaning and effect of the first of those cases. It is enough legislation in this form has in Farey v. Burvett(4); Pankhurst v. been upheld Kiermanl,( 6 ) ; and Sickerdich v. Ashton( ), and we, do not propose to enter into any inquiry as to the correctness of those decisions." ) ; Ferrando v. Pearce(6 the validity of This case therefore was decided on the ground of cursus curiae, and the point raised by Mr. Dixon remained unanswered. that case concerned the Governor-General In the year 1931 two cases came before the Supreme Court, one of which was decided in February, 1~31, and the other in November, 1931. The first of these is the case of Huddart Parker Ltd. v. The Commonwealth(8 ), in which Dixon J. was one of the presiding Judges. the validity of The question the Transport Workers Act whieh section 33 of empowered learned lations in respect of Judge observed ) decided that a statilte conferring on the executive legislate upon some matters, law with that subject. On this construction of the respect decision in Roche v. Kronheimer( 9 ) the case.was decidm (1) 9 App. Cas. 117. (6) 25 C.L;R. 241• (7) 2S C.UR. 506, (2) [1917) A.C. 260. {8) 44 Cd,.R 492 (3) {1919] A.C. 9350 (4) 21 C.L.R. 433. (9) 29 C LtR 329. {S) 24 C.z..R. 120. to make transport workers. The that Roche v. Kronlzeimer( 9 926 SUPREME COURT REPORTS [19511 So far as I have been able to see, Roche v. Kronhei mer(') decided nothing and it was based on the rule of stare decisis. 1951 The Delhi £aw1 Act, 1912, etc. Maha}<lnJ. inasmuch as the constitution Victorian etc. Co. & Meakes v. Dignan(') was decid ed in November 1931. The question in that case was whether section 3 of the Transport Workers Act was it delegated intra vires power of making regulation11 notwithstanding anything else contained in other Acts. The delegation was under the name and style of conferring "regulative power." The appellants in that case were informed that they were guilty of an offence against the Waterside Em ploym"llt rights, picking up for work as a waterside worker at Melbournea person not a member of the Water transport workers side workers' Federation, while who were members of the Federation were available for being picked up for the work at the said port. The attack on the Act itself was based on the American constitutional doctrine that no legislative body can dele to another department of government or to any other authority the power, either generally or specially, to enact laws. The reason, to be found in the very existence of its own powers. This high prerogative having been entrusted to its own wisdom, judgment and patriotism and not to those of other persons, it will act ultra vires if it undertakes to dele gate the trust instead of executing it. It was, however, this principle did not preclude conferring local powers of government upon local authorities. The defence was that the Act did not impinge upon the doctrine because in it the Parliament confined the regu lating power on certain specific matters within the am bit of the trade and commerce power and accordingly merely exercised legislative power within that ambit, and did not delegate any part of it. Reference the decision of Higgins· J. in Baxter was m:ide v. Ah Way('), in which it was observed Federal Parliament had within its ambit full power to frame its own laws in any fashion µsing any agent, any agency, any machinery that in its .wisdom it thinks it was said, was its own (1) 29 C.L.R. 329. (2) 46 C.L.R. 7_3· (3) 8 C.L.R. 646. 1951 The Deihl Laws Act, 1912, etc. Mahajan I. S.C.R. SUPREME COURT REPORTS .fit for the peace, order and good government of the Commonwealth. Rich J. held the <iuthority of subordinate law making may be invested the execu tive. Reference was made to Roche v. Kronheimer(1). considerable The reliance on the judgment of Dixon J. The learned Judge expressed his opinion on the American decisions in these words :- learned Attorney-General "But in what does the distinction lie between the law of Congress requiring compliance with direction upon some specified subject which the administration thinks proper to give and a law investing the admi the same nistration with authority to subject? The answer which Supreme Court supply to this question is formulated in the opinion of that Court delivered by Taft C.J. Hampton & Co. v. U.S.(2) ... ... The courts in America to the validity of had never had any criterion as statutes except reasonableness,....:..the common refuge of thought and expression in the face of un developed or unascertainable standards." the decisions of legislate upon that of legislative In an earlier decision The learned Judge then reached the conclusion that no judicial power could be given or delegated, but'- from that Parliament was restrained that it did not follow from transferring any power essentially another organ or body. learned Judge had expressed the opinion that time had passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legislative power the Parliament so as to restrain it from reposing in the executive an authority essentially legislative in charac ter and he remarked that he was not prepared to change that opinion . or his expression to the effect that Roche v. Kronheimer(1) did decide that a statute_ conferring legislate, on some subjects matters contained within of the legislative power of Parliament is a law with respect to that subject and the distribution of powers the executive a power (1} 29 C.L.R. 329. (2) 276 u.s. 394,406. 1951 In re The Delhi Law1Act,1912, etc. Maha/an I. 928 SUPREME COURT REPORTS [1951) does pot restrain Parliament to make the law. The learned Judge then proceeded to say ;_ accomplished "This does not mean that a law confiding authority to the executiv.e will be v.alid, however extensive or vague the subject-matter may be, if it does not fall outside the boundaries of federal power ...... Nor does it mean that the distribution of powers can supply no considerations of weight affecting the v.alidity ...... It the manner in which the may be acknowledged constitution separation of power does logically or- theoretically make the Parliament the exclusive repository of Commonwealth. The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception: of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law .... Such subordinate legislation remains under Parliamentary control and lacking independent, and unqualified authority · which .an attribute to true legislativ.e power." legislativ.e power of to me It, seems to which that in its ultimate analysis the judgment of the learned Judge proceeded, as pointed out by him, upon the history and the usages of British legislation and theories of English law and not on the strict construction of the Australian Constitution with respect the learned Judge frankly conceded that logically or theoretically the power of delegation in that case could not be of the quality held valid I have justified on the framework of the constitution. also not been able precisely the distinction drawn by the learned Judge that delegation held justi fied by him did not include delegation in the fullest extent of any matter falling within the boundaries of federal power. After a careful consideration. of observations of this very learned and eminent Judge I venture to think that these are not a safe guide for decision of the present reference. Not only were the constitutional the written constitution over-reached, but the decision was based on the theories law which could of British legislation and English limitations of to follow 19S1 In re The Delhi Laws Act, 1912, etc. Mahajan!. S.C.R. SUPREME COURT REPORTS 929 hardly be applied complete separation of power. to a written constitution with a confer contents powers the Parliament this case stated Mr. Justice Evatt legislature power and law-making itself." The differently. He observed "every grant by the Parlia ment of authority to make regulations is itself a grant the true nature and quality the Commonwealth Parlia of legislative power of involves authorities theory legislative power has a content of delegation is not based on any principles in it, to my mind, of jurisprudep.ce or of legislation and I venture to think that it is inconsistent with the fundamental principle that when a high trust is confided to the wisdom of a particular body which has to be discharged according the procedure prescribed, such trust must be dis charged by that person in whom it is confided and by no other. This decision is moreover inconsistent with the decisions of the Privy Council· above mentioned. If the mere existence of power of legislation in a legislature automatically authorized it to delegate that power, then there was hardly any necessity for their Lordships of the Privy Council to justify delegation in the cases referred to above on the ground of conditional the . cases to state affirmatively legislation and considered by them were not cases of delegation of legis lative authority. This view is certainly in conflict with the· Privy Council in Benoari Lal the observations of Sarma' s case(1), given under the Government of India Act, 1935, wherein their Lordships said : "It is true the Governor-General acting under section 72 of Schedule IX himself must discharge the duty of legis lation there cast on him and cannot transfer it to any authority." Evatt J. after enunciating the discussed 'above remarked :- . · "It is true that the extent of the power granted will often be a material circumstance in the examina tion of legislation conferring the grant ........ The nature of the legislative power of the is plenary, but it must be Commonwealth authority law passed by possible to predicate of every the validity of the (1) [194S) F.C.R. HSI. 1951 In re The Delhi:,.: Laws Act, 1912, etc. Mahajan/. 930 SUPREME COURT REPORTS [1951] Parliament that it is a law with respect to one or other tions 51 and 52 of the constitution. subject-matters mentioned specific After referring to a !).umber of circumstances con sidered by the learned Judge material in reaching at a result as statute, he observed as follows :-- constitutionality •of a "As a final analysis the Parliament of the Com monwealth is not competent to abdicate its powers of legislation. This is not because Parliament is bound to perform all or any of its legislative functions though it may elect not to do so, or because of the doctrine of separation of powers, but because each and every one of the laws passed by Parliament must answer the des cription of a law upon one or more of the subject'matters stated in the constitution. A law by which Parliament gave ml its law-making authority to another body will be bad because it will fat7 to pass the test last men tioned." Frankly speaking, I have not been able to apprehend on what principles, if any, of construction, the vancy of the matters considered by the learned Judge as material circumstances in judging the validity of an, ~ct so far as the question of the vires of the Act is concerned could be justified. Another Australian case cited is Wishart v. Fraser('). There the attack was on section 5 of the National Security Act, 1939-40, which empowered the making oE regulations for securing public safety and defence of the Commonwealth etc. It proceeds on the same line as the earlier case discussed above. In my opinion, the decision in Baxter v. Ah Way(2 ) is based on a correct construction of the provi~ons of the Australian Constitution and the later decisions can not be considered as any guide in this country for a decision of the point involved in the reference. The argument pressed by Mr. Dixon, as he then was, in (I) 64 C.L.R. 470. (2) 8 C.L.R. 626. I S.C.R. SUPREME COURT REPORTS 931 Roche v. Kronheimer(1) principle correctly. in my opinion, states the i9Sl In re The De h Laws Act, 1912, etc. Mahajan.J~ The decisions of their Lordships of the Privy Council from India are not many. The first and the earliest of these is in Queen v. Burah(2), which has already been discussed at considerable length in the earlier part of this judgment and as stated already, it is no authority the proposition that the Indian Legislature consti tuted under the Indian Councils Act, 1861, had power to delegate authority to the executive authorising them to modify or amend the provisions of an Act passed by the legislature itself. King Emperor v. Benoari Lal Sarma(8) is the last Indian decision of the Privy Council on this subject. Con viction of fifteen individuals made by a special magis trate purporting to act under Ordinance II of 1942, pro mulgated by the Governor-General on the 2nd January, 1942, was set aside by a ·special Bench of the High this decision was affirmed by Court at Calcutta and the majority of the Federal Court of India. The ·ground on which the conviction was set aside was that the Ordinance was ultra· vires. In appeal before their Lordships of the Privy Council it was contended the Ordinance was valid. The Ordinance did not itself set l.:IP any of the special courts but provided by sub-section (3) of section 1 that the Ordinance- ' "shall come into force in any Province oruy if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a • country neighbouring on India or from the imminence of such an attack, by notification in. the official gazette, declare in the Province and shall cease to be in force when such notification is rescinded."· in force to be In view of this last provision it was contended that the Ordinance was invalid either because the language showed that the Governor-General notwithstanding the preamble did not cor:,:ider that an emergency existed but was making provision in case one should arise {I) 29 C.L.R. 329. t2) S I.

#178. (3) [1945] F.C.R. 161. 932 SUPREME COURT REPORTS [1951] 1951 In re The Delhi Laws Act, 1912 etc. Mahajan!. legislation" future, or else because the section amounted to what was called "delegated Governor-General without pass the decision whether an emergency existed to the Provincial Government instead of deciding it for him self. On their Lordships observed as follows:- legal authority by which last · point sought "It i1 undoubtedly true that the Governor-General acting under '· 72 of !Schedule IX, must himself dis charge the duty of legislation there cast on him, and cannot transfer it to other authorities. But the Governor General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of the Indian legislature which, as already poinr.ed out, in view of the proclamation under s. 102, had power to make 1 aws for a province even in respect of matters which would otherwise be reserved to the Provincial legislature. Their Lordships are unable to see that there was any valid objection, in to the Governor-General's ordinance point of legality, taking the form that the actual setting up of a special court under terms of the ordinance should take place at the time and within the limits judged to be the provincial government specially con necessary by cerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the pro judgment of vision of a statute is determined by a local administrative body as to its necessity. Their Lordships are in entire agreement with the view of the Chief Justice of Bengal and of Khundkar J. on this part of the case. The latter Judge appositely quotes a passage from the judgment of the Privy Council in the well known decision in Russell "· The Queen(')." This case brings out the extent to which conditional legislation can go, but it is no authority justifying delegation of legislative power authorising an external authority to modify the provisions of a legislative enact ment. It may be pointed out that the opening part of the passage quoted above seems to approve the vi~w fl) 7 App. Cas· 829. S.C.R. SUPREME COURT REPORTS 933 of the Federal Court expressed by Varadachariar J. in that case when his Lordship relying on a passage from Street ·on the Doctrine of Ultra Vires observed that a legislature will not ordinarily be permitted to shift the onus of legislation though it may legislate as to m~in principles and leave the details to subordinate agencies. 1951 In re The Delhi lAws Act, 1912. etc. Mahajan I. The decision of 'the Federal Court in /atindra Nath <:;upta v. The Province of Bihar and Others(1), to which I was a party and wherein I was in respectful agree ment with the judgment of the learned Chief Justice in my opinion, correctly and my brother Mukherjea, states the rule on the subject of delegation of legislative power. The Bihar Maintenance of Public Order Act, 1947, in sub-section (3) of section 1 provided as follows:- "It shall remain in force for a period of one year from the date of its commencement. resolution passed by to by the. Provincial Government may, by Provided that the Bihar notification, on a Legislative Assembly and agreed the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the noti fication." Acting under the proviso the Provincial Govern. ment on the 11th March, 1948, extended by notifica tion the life of the Act by one year. The validity of the proviso to sub-section ( v) of section 1 of the Act was attacked on the ground that it amounted to delega legislative power by the Provincial Legislature tion of and this it was not competent to do. On the authority the Privy Council in Benoari Lal' Sarma's case(2) I held the proviso void. The question was posed by me in the following way :- the decision . of "It may ~e asked what does the proviso purport to do in terms and in substance? The answer is it empowers that Provincial Government issue a notification saying that the Provincial Act shall remaiu (1) (1949) F.C.R. 595. (2) (1945) F.C.R. 16f 1951 /11 re The Delhi Laws Act, 19121 ere. Mahajan I. 934 SUPREME COURT REPORTS [ 1951] the power of it. The power legislature., Modifitation the Provincial Legislature, in force for a further period of one year with such modi fications, if any, as may be specified in the notification. As stated in the earlier part of this judgment, unless the power of the Provincial Government is co-extensive it is difficult to see how it can have the power to modify a statute passed by It involves statute amounts to re-enacting it partial\y. the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enacted with Y sections. In the act of modifi involved a legislative power as a discretion cation is has to be exercised whether certain parts of the statute are to remain law in future or not or have to be deleted to modify may ·even involve a power to repeal parts of it. A modified statute. is not the same original statute. It is a new Act and cally speaking, it amounts to enacting a new law. The dictionary meaning of the word 'modify' to make something existing much less severe or to tone it down or to make partial changes in it. What modifications are to be made in a statute or whether any are neces sary is an exercise of law-making power and cannot amount merely to an act of execution of a power already conferred by the statute. The extent of changes to external authority, i.e., the Provincial Govern in pursuance of ment. Nothing is the power to determine whether a law shall be in force after normal life has ended and if so, what that law will be, whether what was originally enacted or something different. The body appointed as a delegate for declar ing whether a penal Act of this character shall have than originally contemplated by the legisla longer life ture and if so, with what modification, is a new kind of legislature than that entrusted with the duty under the Government of India Act, 1935." is here being done is being delegated law. What I still maintain the view that the question of the a matter of policy to be on the statute life of an Act is a matter for the judgment of competent It whether a certain enactment legislature. 1951 In re The Del/ti Laws Act, 1912, etc. MahajanJ. S.C.R. SUPREME COURT REPORTS 935 It was said by It automatically . expires. the Privy Council law as settled by the period fixed ceases book permanently or temporarily. Such a question does not fall within conditional legislation as it concerns the extension of the life of a temporary Act. Such an Act dies a natural death when duration operate and is no real analogy between condi tional legislation which authorizes a known authority to determine the commencement or termination of an in exercise ·of any power con Act and an act done ferred by the Act itself. learned Attorney-General that this decision had created con siderable difficulties and that the various High Courts in India on its authority had held certain enactments void, the validity of which had never l;>een questioned before this decision was given. In my humble judg ment, there is nothing whatever in that decision which in any way unsettled Lordships of in Burah's case(1). This decision did not lay down that the Indian legis lature did not possess power of delegation necessary functions. for effectively carrying out All rightly-that essential legislative function could not be delegated legislature could an external authority and not shirk lay the burden of dis charging that duty on others. If I was convinced that the decision laid down a wrong rule of law, I would have required no sugar-coated phrases to own the error. Our attention is not drawn to a single decision of their Lordships of the whole administration of this country by the British in which the highest court in the contention urged by the learned Attorney-General. On the other hand, learned Judges in this country of the eminence of Markby J. and Varadachariar J. in very clear and unambiguous terms affirmed that delegation of essential legislative power was not within the com petence of the Indian legislatures. the Privy Council during its own duty and it held war-and legislative land upheld the rule I Reference may also be .made to the case of The State of Bombay v. Narottamdas(2), decided recently and te> (1) S I.A. 178· (2) [19SI] s.c.R. SI. 936 SUPREME COURT REPORTS [1951] 19SI In re The Delhi Laws Act, 1912J etc. Mahajan/. which I was a party. Therein it was explained that Jatindra Nath Gupta's case(') was no authori.ty prohi biting delegation of legislative power in case where the principle and policy of. the law had been declared in the enactments itself and ancillary power had been delegated the provincial government for bringing in to operation the provisions of an Act. law. constitutional In England judgments cited the Donoughmore Committee. To sum up, judicial ofmion on this subject is still in a fluid state and it is · impossible to reconcile all to us on the basis of any rigid principles of Parliament is for the time being following the recom mendatfons of In the doctrine against delegation of legislative America power · still holds the field. In Canada as well as India their Lordships of the Privy Council in Burah's case(2 ) has never been depart ed from in theory. The same view was maintained in the earlier Australian decisions. Recently Australian decisions however have gone to the length of holding that even essential legislative power can be delegated so long as the principle does not completely efface itself. laid down by the rule legislative power is to be found in In my opm1on, the true solution of the problem of delegation of oft-quoted passage from the judgment of Ranney J. of the Supreme Court of Ohio in Cincinnati W. & Z. R. Co. v. Clinton County Comrs.("). This quotation is in these terms :- to make "The true . distinction is between the delegation of the law, which necessarily involves a discretion as to what it shall be, and conferring autho rity or discretion as to its execution, to be exercised in pursuance of the law. Tlie first cannot under and be done; to the latter no valid objection can be made." The decision in Locke's Appeal(') is also based on this rnle There it was said :- (l) (1949] F-CR. S9S (2) S JA. 178- (3) I Ohio St. 88. (4) 72 Pa. St. 491. 19S1 In re The Delhi Laws Act, 1912, etc. MahajanJ. S.C.R .. SUPREME COURT REPORTS 937 "To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the legislature of the ~wer to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and possible to fully know". The proper distinction court said was this : "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 determin ation outside of the halls of legislation." The Federal Court of India in its opinion. exRressed by Varadachariar J. in Benoari Lal Sarma's case( ) con sidered a contention of the Advocate-General of India made to it based on the above quotation of Ranney J. and observed as follows : "We are of the opinion that there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in . the passage from the American authority which the Advo cate-General of India proposed to adopt as his own argument." The majority of the court approved the rule stated by Chief Justice Hughes in Panama Refining Co. v. U. S.(2), and it was stated that the rule therein held had nothing whatever to do with maxim delegatus non potest delegare, but was only the amplification of what in Burah's was referred case(3) as "the nature and principles of legislation." the Judicial CoD;lmittee to by The question cali be posed thus : Why is delegation peculiarly a content of legislative power and not of a content of judicial power? In my judgment, it is judicial or none of the three State powers, legislative, executive. (I) [1943] F.C.R. 96. It is, on the other hand, (2) 293 U.S. 388. incidental (3) SI.A. 178. 1951 In re The Delhi Laws Act, 1912, etc. MahajanJ. 938 SUPREME COURT REPORTS (1951] It lay down it is necessary its function of exercise of all power inasmuch as delegate the proper discharge of all public duties. No public functionary can himself per form all the duties he is privileged to perform unaided by agents and delegates, but from this circumstance it does not follow that he can delegate the exercise of his judgment and discretion to others. One may well ask, why is a legislat1,1re formed with such meticulous care by all constitution makers? Why do they take pains to lay down the procedure to be followed by an elected legislature law-making? Why do its different functions and they define methods by which it shall act ? The only answer that reasonably can be given to these queries is : "Because judgment of the body the constitution trusts to . constituocd in the manner indicated in the constitution and to the exercise of its discretion by following procedure prescribe therein." On the same principle the judges are not allowed to surrender their judgment they and they alone who are trusted to others. with the decision of a case. They can, however, dele gate ancillary powers to others, for instance, in a suit for accounts and in a suit for dissolution of partner, ship, commissioners can be entrusted with powers authorising them to give decisions on points of differ ence between parties as to items in the account. Again it may be enquired why cannot other public function aries entrusted in the matter of appointment of public servants; delegate this particular duty to others. The answer again is found in the same principle. I put this query to the learned Attorney-General but I could not elicit any very satisfactory answer. He contended himself by saying that possibly there was something in the nature of itself which requires the the authorities concerned and personal attention of there impliedly for bidd~n. To my mind, the same principle forbids delegation of essential legislative power. inherent in the nature of the power that has to be exercised by for the purpose subject to the legislature elected It would be a breach of qualifications · already stated. therefore delegation was the power It is 1951 ln re The Delhi Laws Act, 1912, etc. Mahaja111. S.C.R. SUPREME COURT REPORTS 939 indeed, the power of incorporate community the constitutional duty to bestow this power on one else. In the words of Sir John Salmond; "In general, legislation is far too important to be committed to any person or body of itself. The persons save great bulk of enacted law is promulgated by the state in its own person. But in exceptional cases it has been found possible and expedient to entrust this power private hands." In the words of Mr. Dixon (as he then was), the making of a law that another body may laws upon a particular subject matter is not making a law on that subject. The quotation cited in the earlier part of judgment from Baker's book rule when it says : "It is. an law that representative legisla axiom of constitutional tive bodies cannot delegate legislative power because representative government vests in the persons chosen to exercise taxes and enacting laws : the most trust known In the words of another jurist, to civil government." "Legislation is the formal utterance by the legislative the society and by no others. Its words organ of constitute the law and not the words of the delegate." important and sacred the power of voting - appositely states .. In private law the rule is well settled that an arbi trator cannot lawfully devolve his duty on another unless so expressly authorized. The nature of the duty itself is such that it demands exercise of his own ment and discretion. It is again well settled that fidu ciary duties cannot be made the subject of delegation, though trustees in order to discharge certain functions can use machinery or subordinate agencies for effec to their tively carrying on constitution. Delegation is permissible in cases where there is a legal or physical necessity to do so because trusting some person or persons it would be without the duties. It can impossible efficiently not be denied that municipal and other corporations cannot delegate the by-law making power to the execu tive officers. is entrusted to It is so because power them in their corporate capacity and has to be exer I am not able to apprehend cised in that capacity. 14-3 S. C. India/68 the duties which attach to discharge 940 SUPREME COURT REPORTS [1951 l 1951 Jn re The Delhi Lllws Act, 1912, etc. Ma/rajanJ. why this principle which is well settled in private law cannot appositely be applied to the discharge of duties by public functionaries and by a It seems to me that the nature of the duty is such that it is implicit within it that it should be discharged by the person entrusted with it and by no others. In other words, the nature of the public duty itself demands it and the principles of legislation require it. legislature. For the reasons given above I cannot accept the pro position contended for by the learned Attorney-General that in the absence of an express or implied provision legislative authority can be · best in . the constitution owed on other persons. the correct proposition, on the other hand, is that unless expressly or impliedly authorized, such delegation is not permis in two classes sible. The exceptions which have been stated in the. quotation from Craw ford's book earlier cited in this judgment. to this rule fall .In my opinion, in order appreciate ·learned Attorney-General It is now convenient to examine the provisions of our Constitution the contention it has been that the Parlia modelled on the British system and ment of India is as omnipotent as in England and that the matter of delegation of legislative power it is in an analogous situation. In my opinion, our Con is a judicious combination of the American stitution model with the British Parliamentary system. In its main scheme it follows the Government of India Act, 1935, which provides for a federation of States and provides for an executive responsible to the legislature. the framers of the constitution, As a matter of fact, ideas from other con though they have stitutions, have not rigidly adhered to any particular model. Certain provisions in our constitution are such for which there is no precedent in the constitution of It seems to me that they were as any other country. the doctrine of administrative con much alive ·to venience as to the dangers of a system whicli permits delegation of unfettered executive. The country had recently emerged from the bonds of a bureaucratic system which had killed legislative borrowed 19Sl In re The Delhi Laws Act, 1912, etc. MahafanJ. S.C.R. SUPREME COURT REPORTS 941 1s this, It has also rigours of a necessary corollarly its very· soul and they apparently did not wish it get engulfed again that system. Bureaucratic existence of unfettered delegation of legislative power; the constitution makers made detailed To avoid the Constitution on all matters. It has provision to be emphasized in the world has that no country such an elaborate and comprehensive constitution as we have in this. country and it would not be proper to construe such a constitution with the help of decisions the construction of constitutions given elsewhere on shaped differently. It is only after a consideration of all the provisions of the Constitution and its whole scheme that it has to be decided whether delegation of power-legislative, executive or judicial-is implicit in the grant of any of these powers or has been expressly provided for, to the extent it was considered necessary on grounds of administrative convenience in peace or this power by war time and therefore conferment of true construc implication cannot be upheld on that our tion. Constitution British system inasmuch as the doctrine of supremacy of Parliament has limitations here. The courts of Parliament inconsistent with unconstitutional Part pass on legislatures. the demarcation of Obviously, legislative fields that one legislature cannot by delega that are exclusively within its field tion of subjects clothe the other with legislative capacity to ·make laws on that subject as it will amount to an infringement therefore, that delegation of legislative power to that extent Illustratively, defence prohibited by is a State is a Union subject, while subject. Can that by delegation Parliament can arm a State legislature with the law-making power on the subject of defence and that a State legisla_ture can arm Parliament with fields demarcated it be argued with any reason declare Acts the Constitution or when the Constitution itself. in mind different the Constitution. law and order It seems clear; to be borne fundamentally empowered for State implicit III of 19SI l•re Tje Delhi Laws Act, 1912, ~tc. Mahajan I. 942 SUPREME COURT REPORTS [1951) if such the ground in favour of power to make law of the subject of law and order? In my opinion, any argument on those lines . has to be negatived on that the delegation of such power would be contrary to the Consti?"tion . its~lf and that this kind of transfer of power is outside its con templation. For a similar· reason transfer of power is not possible in the case of one legislature to the other, it is difficult to justify it if the the executive except to the extent allowed by the Constitution or that it had already been recognised under the designation legislation" or "rule-making power", of "conditional the constitution-makers were which presumably I have again no hesitation in holding that our aware. constitution-makers the American doctrine against delegation of legislative power, and on grounds to meet particular of administrative convenience and they carefully · made express provisions circumstances within the Constitution for devolution of power in those eventualities. the extent accepted transfer to him it is stated in that article that in accordance with Article 53 of the Constitution concerns the executive power cif the Unio~. It is vested in the President and m express .it shall be exercised by him either directly· or through officers subordinate Constitution. The Parliament is authorized by law to confer functions on authorities other than the Presi dent. A careful reading of this article shows that an elaborate provision has been made in the Constitution for employing agencies and machinery for the exercise of the executive power of the Union. The President is vested \with the supreme command of the Defence Forces and in addition to this power, power of delega tion has been conferred on Parliament even executive field in article 53(3) (b). Similar provision in regard to the executive power of has been made In article 77 pro each State: vision has been made as the business of the Government of India has to be conducted. The Presi dent has been conferred the power of making rules business for the more convenient (vide article 154). transaction of the to how 19Sl /It'" The Dellii Law1 Act, 1912, etc. Maliajan J. S.C.R. SUPREME COURT REPORTS 943 It is the body 123 confers therein. Article judgment and discretion the Constitution bestowed the the Government of India and for the President when Parliament is not the allocation among Ministers of the said business. Such a detailed provision regarding the exercise of executive power does not exist in the other constitutions to which our attention was drawn. Article 79 provides that there shall be a Parliament for the Union. Provision has then been made in the various articles how the Parlia ment has to be constituted and how it has to conduct its business, what officers and secretariat it can employ and with what powers. Articles 107 to 119 relate to implicit in these elaborate legislative procedure. provisions thus constituted by it, making powers on and it was this body in its corporate capacity that had to exercise in enacting taxes and that judgment had to be laws and voting arrived at by following the rules of procedure expressly legislative laid down power on session and· this power is co-extensive with the legis itself. Article 124 the Parliament lative power of deals with It prescribes judiciary. the Union the method of their appoint number of Judges and ment and it lays down the procedure that the President In arti cle 140 provision has been made under which Parlia ment can confer on the Supreme Coun such supple mental powers as may appear to be necessary for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon ·it by or ·under this Con ititution. An express provision of this kind, in my opinion, proposition which the learned Attorney-General has been contend If the power of delegation of legislative powers ing for. is implicit in the power of legislation itself, the consti tution-makers would not have made an express pro vision in . article 140 bestowing authority on Parliament the Supreme for conferment of ancillary powers on to legislate Court Parliament obviously had authority on "Supreme Coun" as it is one of the subjects in the strongly Union List. Article 145(1) (a) again very the power in making the appointments. negatives clearly 1951 lnr~ The Delhi Laws A.ct, 1912r etc. Mahajan]~, 944 SUPREME COURT REPORTS [1951] law made by the powers of the. proposition of law. The Constitution in which delegation of learned Attorney negatives General. The Constitution has authorized the Supreme Court to make rules as to the persons practising before the court. This is one of the subjects in the Union List and this conferment of power by the Constitution on the Supreme Court is subject to the provision of the · Parliament. In other words, Parliament has been given express power to· take away. this power or supplement it by making a law. In my judgment, such a provision is quite foreign to a consti law-making powers . is tution implicit. Detailed provision . has been made for appointment of High Court Judges in article 217, and rule making powers have been given to the H;igh Courts under article 227. the President. h~s In article 243 been given the power to make. regulations for the peace· and good government of territories enumerated in Part D of the First Schedule and in exercise of that power he can repeal or amend any law made by Parliament itself· . has dcle, or existing wherever it thought that such delegation was necessary. Articles 245 and 246 demarcate · the field of legislation · and between the Parliament and the State . legislature in article 248 provision has been made that residuary powers the Parliament Article 250 makes prlJvision for cases of emergency• Parliament in that event has power to make laws for the whole or any part of the terfaory of India with res pect to any matters enumerated in the State lists .. Arti cle 252 is a somewhat peculiar prov1S1on. Under ·it Parliament can legislate for two or more States with their consent. This is a form of exercise of legislative power by Parliament as a delegate of the State as by its consent alone Parliament gets the power of legislation. By article 258 the President has been authorised with the consent of the Government of a State to entrust either conditionally or unconditionally that Government or to its officers functions in relation to any matter to the Union extends. that article provision has also been made for In the executive power· of legislation; remain the Parliament to the President · ,19S1 · ;i1n.re The Delhi Law1 Act, 1912, etc. Mahajan J, &C.R. SUPREME COURT REPORTS 945 to make is one which imposition of duties, upon delegation of powers by a law made by Parliament. By article 349 the power of the Parliament to enact laws in respect of language has been restricted. Article 353 states the effect of a proclamation of emergency and provides that the executive power of the Union in such a case shall extend to the giving of directions to any the manner in which the executive power State as (2) of this article to be exercised. Clause thereof requires emphasis. It provides that the power of Par liament to any matters laws with respect shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers the Union, or officers and authorities of the Uniori, as respects that is not matter, notwithstanding that it enumerated in the Union List. Parliament in an emer gency under article 250 has full power to make laws on subjects within the State List and is certainly entitled to delegate that power if that power is a content of the constitution makers thought legislative power but otherwise and made an express provision for delegation situation. Article 357 provides of power in such a that where by proclamation issued under clause (1) of that the powers of article 356, the legislature of the State shall be exercisable by or under the authority of Parliament, it shall be compe tent for Parliament to confer on power of the legislature of the State to make laws, and to authorize the President to delegate, subject to sucli conditions as he may think fit to impose, the power so to be specified- by conferred to any other author-ity him in that behalf. This is the onlv article bv which the Constitution has authorized the delegation of essen that Parliament in that contingency should have power to confer legislative power on the legislative executive and the State field and further to authorize the capacity President to any other authority specified by him. A reference to the entries. in the three Lists of the Seventh Schedule further legislative power. Possibly it has been declared legislative power it was necessary the President to delegate to clothe its own it with thought it was ' 1951 In re The Delhi Laws A.ct, 1912, etc. Mahaja•J. 946 SUPREME COURT REPORTS [19511 illustrates this point. Entry 93 of List I is "Offences against laws with respect to any of the matters in this List." Entry 94 is ~Inquiries, surveys and statistics the purpose of·. any of the matters in this List." Entry 96 is "Fees in ~espect of any of the matters in this List, but not including fees taken in any court." is "Jurisdiction and powers of all courts, Entry 95 except the Supreme Court, with respect to any of the matters in this List." All these entries are instances of subjects inciqental and ancillary to the main sub jects of legislation contained in the List. Similar entries are to be found in Lists II and III as well. The Cons legislative titution seems to have taken care terms even incidental matter~ and to read by therefore unnecessary implication and introduce by this process within such a constitution any matter provided therein. in express to confer regarding expressly the Constitution, ·its essential I am satisfied that the constitution-makers consider ed all aspects of the question of del~gation of power, whether executive, legislative or judicial, and expressly provided for it whenever it was thought necessary to do so in great detail. In this situation there is no scope for the application of the doctrine contended for by the learned Attorney-General and it must be held that in the absence of express powers of delegation allowed the Parliament has no power to to others, functions legislative delegate whether State authorities, executive legislatures or except, of course, functions which really in their true nature are ministerial. The scheme of the Constitution and of the Government of India Act, 1935, expressly entrusted with legislative capacity certain bodies and persons and it also authorised the creation thought necessary law-making but gave no authority body not created bv executive as a contingencies. In these circumstances it is not possible to add to the legislative authorities by a process of delega list of tion. As pointed out by Crawford on Statutory to create a new itself. law-making bodies wherever It even created in certain legislature is that 19S1 In re The Delhi LllwJ Act, 1912, etc. Mahoj1111 J. S.C.R. SUPREME COURT REPORTS 947 and by implication be the expression of "If a statute enumerates Construction, · at page 333. the things upon which it is to operate, everything else must necessarily excluded its operation and effect. So if a statute directs certain acts to be done in a specified manner by certain persons, their performance in any other manner that specified, or by any other person than is there named, is impliedly prohibited." The ordinary rule is that if authority is given expressly by affirmative words upon a defined condition, condition excludes the doing of the act authorised under other circumstances than those as defined. Under the Government of the executive enjoyed a larger power of legislation than is contained It seems to have been cut in the new constitution. down to a certain extent. The new constitution confers authority on Parliament to make laws for the State of Delhi. It also authorizes it to create a legislature for that State. The Constitution therefore has made ample indicating bodies who would be competent provision In my opinion, to make laws for the State of Delhi. therefore, delegation of legislative power to the execu Any legislative practice adopted during the pre-constitution period for undeveloped and excluded areas can have no relevancy in the determination of this point. in matters essentiai is unconstitutional. India Act, 1935, Having examined ·the provisions of the new consti Indian constitutional position of tution, legislature under the Indian Councils Act of 1861 and of the Government of India Act, 1935, as subsequently the Indian Independence Act, 1947, may adapted by now be examined. As already stated, the Governn1ent of India Act, 1935, envisaged a federal constitution for India with a demarcation of Federation and the States and it is the scheme of this the new constitution Act which has been adopted in respectful agreement I have already expressed my the constitutional Benoari Lal Sarma's case(1) expressed by Varadachariar field between the view legislative J. ( 1) (1943] F.C.R. 96.

1.951 11'.re The De/hi laws Act, l9!2, etc ... Mahajan.'J. 948 SUPREME COURT REPORTS (1951] introducing its essentiality is not allowed by the American model the executive as well as in India under this Act approximates more position closely than to the English model and it seems to me that delegation of legislative its pro visions. During a period of emergency the Governor General could himself under his own proclamation become the legislature and the necessities of administrative convenience were not a compelling circumstance scheme of the Act by implication, authority in Parlia ment for the delegation of legislative power. This Act also contains detailed provisions authorizing delega tion of power both in the executive and legislative field wherever to confer such fhe Indian Independence Act by section 6 co11- power. ferred the power of legislation on the Dominion Parlia the ambit of the Act of 1935. By other ment within provisions of it made the Dominion Parliament a Constituent Assembly for the purpose of making the new constitution for India and it also gave it authority to repeal Acts of Parlia ment. For the purpose of ordinary law-making it had in India enjoyed the same powers as question referred to us in regard to the Ajmer-MerWara Act, 1947, has to be answered on the provisions of the constitution contained in the Constitution Act of 1935. the legislatures the Government of India Act, 1935, and it was considered necessary Indian Independence Act the Governor-General and terminated and vested The constitutional pos1t1on in India prior to the Act of 1935 may now be briefly stated. Before the Charter Act of 1833 there was a division of legislative power between the Prdidencies. By that Act the power of the Presidencies as legislatures law-making power in Council. Mr. Macaulay was added as a legislative member to the executive council without a to vote. In substance legislative functions were performed, by the same body, of course, with the help and advice of Mr. Macaulay. With slight modi fications Indian Council~ Act, 1861. Under the whole the Governor-General tins Act the executive and remained situation

#19. Sl In re Tho Delhi Laws Act, 1912. etc. Ma/lajan /. S.C.R. SUPREME COURT REPORTS 949 in Council legislative business legislative power. that the scheme of the Councils Act was legislative meetings Governor-General local legisla could legislate for the whole of India and tures could also legislate for the provinces. By section 10 of the Act the legislative power was vested in In section 15 it was laid Governor-General in Council. down how that power was to be exercised. For con duct of power was given to make rules in section 18. to the Governor-General Section 22 legislative the ambit of laid down power. Section 23 bestowed power on the Governor General in emergencies to make ordinances. Section 44 empowered the Governor-General to create It latures and confer on appears :wanted the Governor-General in whenever Parfiament Council to have power to create legislatures or to make. that power was conferred in ex regulations, rules or the year 1870 press terms. By another statute in summary power to make in respect Governor-General i,e., non-regulation provinces. to less advanced areas, Another charter would not have been · necessary if Governor-General could arm himself with legislative power by a process of delegation from his own Council In my opinion, the constitution as envisaged by Indian Councils Act, 1861, does not authorize legislative power by any of the delegation of essential into existence by legislative autliorities brought this reason Act to the executive an<l it was for their Lordships of the Privy Council in Burah's case( 1 ) did not base their decision on this ground but merely upheld the enactment as intra vires on the ground of respectful agreement I am in conditional legislation. with the opinion of Markby J. expressed in the year 1877 in terms : "that any substantial delegation of legislative authority by legislature of this coun try is void." The Privy Council on appeal did not dissent from this view. law was in his executive capacity ·conferred on It was argued that legislative practice in India since a long time has been such as would validate statutes (1) 5 I. A. 178. 1951 In r~ The Delhi Laws Act 1 1912, etc. MahajanJ. 950 SUPREME COURT REPORTS (1951] designed on the model of three statutes under reference to us. Reference was made to the follawing observations in U. S. v, Curtiss Wright('). legisla "Uniform, long continued and undisputed tive practice resting on an admissible view of constitution goes a long way to the direction of prov presence of unassailable grounds · constitutionality of the practice." In my opinion, there is no evidence in this case of any uniform, long continued and undisputed legislative practice for validating drafted .on the statutes in question. The material on which this argument was based is of a most meagre character and does not warrant conclusion contended for. statutes which similar to tl~is that with long continued legislative practice is said to be Annexure (A) annexed to the case stated on behalf of the President mentions two instances only before the year 1912 of this alleged legislative practice, but even these instances are not analogous to the statutes which have been given in the reference. in vital matters is The scheme of those enactments different from the enactments in question. The first instance of nished by section 5(a) which was Scheduled Districts Act, 1874, by Act XII of 1891. It provided Governor-General in Council in declaring an enactment in force in the scheduled districts or in extending an enactment to a scheduled district the Local Government may declare the Government It is noticeable that section 7 of the may think fit. Delhi Laws Act has not been drafted in the same as section 5 (a) of the Scheduled Districts Act. Though the Governor-General dis constitutional! y functions charged meetings held separately purposes and with the help of some addi6onal members, for all practical restriction and modification as the Governor-General wag the previous sanction of legislative the application of the Act subject the executive speaking, purposes (') 299 u.s. 304. S.C.R. SUPREME COURT REPORTS 951 legislative matters speaking in both executive and real authority in this of this authority was necessary before declaring law even with modifications, such as would constitute I1as been enacted in section 7 of the Delhi Laws Act. .country, and if previous sanction instance cannot be for what legislative practice 1951 In re The Delhi LawsA.ct, 1912. etc. Mahajan J. the date of the extension the Local Government may, with The second instance cited is of the Burma Laws Act, 1898. In section 10 of this Act it was provided the previous sanction of the Governor-General in Council by notifi cation, with such restrictions and modifications as he extend certain acts in force in any part thinks fit, of Upper Burma at In set:tion 4 a schedule was given of certain areas. in Upper Burma at all the Acts that were in force the time of the enactment. This instance also does not furnish evidence of legislative practice for the valida tion of section 7 of the Delhi Laws Act in which there is no provision like the one contained 'm section 4 of the Burma Laws Act, 1898, and which also contains a provision similar the Scheduled Districts Act Governor-General important lacking in the Delhi Laws Act. Between things are 1861, and 1912, a period of over stances of this kind which occurred within seven years of .each other cannot fall within the· criterion laid down in the case cited above. requiring the previous sandion of to section S(a) of in Council. Both fifty years, three other After the year 1912 illustrations were mentioned- The first of these is in sections 68 and 73 Inland Steam Vessels Act, 1917. Section 17 of the author'1sed modification of an enactment for the purpose of adaptation. This certainly is no instance of the kind of legislation contained in the Delhi Laws Act, 1912, section 7, or in Sec tion 68 authorized the extension of certain chapters to certain areas with modifications. the Ajmer-Merwara . Act, 1947. The next instance mentioned was the Cantonments Act, 1924. By section 9 of this Act it was provided, the Central Government may by notification exclude from the operation of any part of this Act the 1951 In re The Delhi Laws Act, 1912, etc. Ma11ajanJ. 952 SUPREME COURT REPORTS [1951] whole or any. part of a cantonment or direct that any provisions of this Act shall in the case of any canton ment apply with such modifications as may be so specified. The third instance mentioned was in section 30 of the Petroleum Act, 1934. Here it was provided that the Central Government may by notification apply all or any of the provisions of this Act with such modifi think fit to any other dangerous cations as it may inflammable substance. This is an instance of adding certain items to the schedule annexed to an Act. These three instances show that between the year 1917 and 1934, a period of seventeen years, Instances occurred of legislation, same kind as contained in the Delhi Laws Act, 1912, but bearing some similarity to that kind of legislation. No conclusion instances of any uniform legislative practice can be drawn. though not of a note is mentioned of The learned counsel appearing for the Government of Uttar Pradesh submitted in which an instance the Uttar Pradesh Land Revenue Act, III of 1901, which in section 1 of sub (2) provided that the State Government may section by notification extend the whole or any part of Act to all or any of the areas so excepted subject to such exceptions or · modifications as it thinks fit. This instance does not materially affect the situation. instances After the research of a fortnight the learned Attomcy list of General gave us a supplementary instances contained support of his contention. Two in this list are from sections 8 and 9 of Act XXII of 1869 discussed in Burah's case('). The third instance is from section 39 of Act XXIII of 1861, again con these have already been sidered discussed in an earlier part of judgment. The instance cited is from the Aircraft Act. of only new 1934, which authorized modification the specifica. It confers no authority to modify tion of an aircraft. any law. Two Airforce Act, 1950, which was enacted subsequent to (') S I.A. 178· that case, and instances in list are S.C.R. SUPREME COURT REPORTS 953 to us and cannot be the enactment under reference considered relevant on this subject. The last instance cited is from the Madras Local Boards Act, 1920, which authorizes the Governor to extend the Act with certain modfications to areas to which it originally had not been made applicable. This instance of 1920 bears no rclevancv for determining the validity of section i of tlJt: Act of 1912, enacted eight years before instance came into existence. 1951 In re The Delhi Laws Acl, 1912, etc. MalzaianJ. real resemblance in section 7 of tribunals established the Delhi Laws Act is the administration of this part was vested A seemingly similar instance to the enactment con tained section 8 of Act XXII of 1869, considered by the Privy Council in Burah's case(1). That instance, however, examined, has no when closelv section 7 of the Delhi Laws Act. Act XXII of 1869 the Garo Hills from the juris was enacted to remove diction of the General Regulations. That was its limited purpose. By section 5 officers appointed by the Lieutenant-Governor of Bengal and those officers had to be under his control and were to work under his instructions. The executive therefore, vested administration of this in the Lieutenant-Governor of Bengal. By section 8 of the Lieutenant-Governor was the Act, already cited, the Calcutta Gazette to authorized by notification in extend to the excluded other territories subject to his government or laws which Governor-General or territories. Both these authorities were pect of those competent to make laws the province of Bengal. The validity of section 8 was not questioned in Burah's case(2) it. Regarding this section, however, the following obser vations occur in the judgment of their Lordship which were emphasized before us :- the Council of the Lieutenant-Governor in and no argument was addressed about thereafter be enacted by territories laws in territory was, force in "The Governor-General in Council has determined, remove m the due and ordinary course of legislation, to ( 1) 5 I.A. 178· (') 72 T. A. S7. 1951 In re The Delhi laws Act, 1912, etc. Mahajan/. 954 SUPREME COURT REPORTS (1951 J to say at what leavmg it jurisdiction of the ordi a particular district from the to place it under new nary courts and offices, and responsible courts and offices, to be appointed by and the Lieutenant-Governor of Bengal ; the Lieutenant-Governor change shall take place; and also enabling him, not to ma!(e what laws he pleasts for that or any other district that district any but to apply by public notification to law, or part of a law, which either already was, or from time to time might be, lative authority, territories subject to his government.' The legislature determined that, so far, a certain change should take place ; but that it was expedient to leave the time, and the manner, of carry the discretion of . the .Lieutenant ing it 'mto effect to that the laws which were or might Governor; and. also, be in force in the other to the same Government were such as k might be fit and proper to apply to this district also." in force, by proper territories subject 'in the other to a territory All that applicable district that a legisla':Ure jurisdiction could excluded these observations mean having been made by a competent for cer the Lieutenant tain purposes by a notification of Governor. As already pointed out, the Lieutenant Governor could make laws for the whole province of the Governor-General in Council Bengal and similarly, could do so. The law having been made by a competent legislature for the territory for which it had power .to legislate, the only power left in the Governor-General legislation to an excluded area ; but this is not what the Del.J>i Laws Act had done. As will be shown later, the Delhi Laws Act in section 7 has authorized the Governor-General in his executive legislatures capacity to extend to Delhi Laws made by which had no jurisdiction or competence to make for Delhi. to extend Having stated the principles on which answer has to I now proceed be given to the questions referred to us, to give my opinion on each of the three questions· S.C.R. SUPREME COURT REPORTS 955 The first question relates to section 7 of the Delhi Laws Act, 1912, and concerns its validity in whole or in part. The section as enacted in 1912 was in these terms :- "The Governor-General in Council may by noti fication in the official gazette extend with such restric the Pro tions and modifications as he vince of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification." thinks fit to 1951 In re The Delhi aws Act, 1.912, etc. Mahajan I. Laws regards in force the Act of the date of that may be the passing of the enactments laws would be. in any part in British India at the Act. As The section gives a carte blanche to the Governor General to extend the newly formed province any enactment in force in any part of British India at date of the notification and not necessarily any enact in British India at passing of the Delhi Laws Act. No schedule was that were annexed the date in force the enact force any part of British there was no India at the date of any notification, knowing what were to be made after 1912, their principle and policy that enacted could not be known to section 7 of the Delhi Laws ·Act. It seems obvious exercised judgment, nor its discretion in laws. It also conferred on ·power of future enactments passed by modifying existing and different the country. The power of legislatures in modification implies within it the power of amending those statutes. To use the words of a learned Judge, the section conferred a kind of a vague, wide, vagrant and uncanalised auhtority on the Goverrior-General. There is · no provision within the section by virtue of which the mind of the legislature could ever be applied the Governor-General in the · different statutes passed by different legislatures in India and extended to Delhi. lS-3 s. C. India/68 legislature could not have the amendment made·. by the Governor-General legislature respect of 1951 In re Tire Delhi Law1 Act, 1912, etc. Mahaia1t-J. 956 SUPREME COURT REPORTS [1951] law it thinks fit. legislatures. different State passed by different the year 1912. Another Illustratively, it may be pointed out that numerous rent control Acts have been latures in India, laying down basically different poli cies and principles. The Provincial Government under the Delhi Laws Act is authorised to apply the policy of any one of these Acts to Delhi or the policy which it might evolve by combining different such statutes Legislative passed by policy in the matter of rent control had not been evol ved by illustration may be law of prohibition. Different State taken from .complete governments have adopted a policy of either local option. What policy is to be prohibition or of is to decide that policy ? apphed to Delhi and who Obviously, under section 7 the Provincial Government legislature adopt any policy can without going to the it likes, whether of partial or of complete prohibition and may apply to Delhi any It Is obvious therefore that within the wide charter of dele gated power given to the executive by section 7 of Delhi Laws Act legislative functions and in effect it became the legislature for It seems to me that by enacting section 7 the Delhi. legislative power in legislature virtually abdicated its favour of the executive. That, in my judgment, was not warranted by the Indian Councils Act, 1861, or by any decision of the Privy Council or on the basis legislative practice. The section therefore, in of any is ultra vires the my opinion, Indian Councils Act, 1861, following particulars : (i) inasmuch as it 'permits the executive to apply to Delhi laws enact ed by Delhi and which these legislatures may make within their own clothes legislative the matter of modification of laws made authority in existing Council in his legislative capacity and of laws adopted legislatures was annexed by it to the Act, to that exteht the delegation of power, but list of the Governor-General legislative field, and executive with legislatures not competent to make it could exercise essential though passed by other (ii) inasmuch as legislative bodies co-extensive passed by in India. If any 19Sl In· re The Delhi Law1 Act, 1912, etc. s.c.R. SUPREME COURT REPORTS 957 without any power of modifications in favour of executive, might have been valid, but that is not what was enacted in section 7 of the Delhi Laws Act. Power the Governor to extend laws made in the India or adopted General in Council for the whole of legislatures would by it though passed later by other also be intra vires, but farther legisla If one may say so, section 7 declares ture could not go. that the the Governor-General in Council can declare it and can determine what laws would be in force in Delhi. legislature has no policy of its own and future by that the The second question concerns section 2 of the Ajmer (Extension of Laws) Act, 1947, which pro for extension of enactments to Ajmer-Merwara. Merwara It says : ''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 provmce at the date of such notification·" For the reasons given for holding that sedion 7 of the Delhi Laws Act is ultra vires the constitution in particulars, this section also is ultra vires the Govern ment of India Act, 1935, in those particular. The sec tion does not declare any law but gives the Central the law shall be. Government power to declare· what The choice to select any enactment in force in any pro vince at the date of such notification clearly shows that the legislature declared no principles or policies as It may be regards the law pointed out that under the Act of 1935 different pro vinces had the exculsive power of policies in respect to subjects within their own legi:sla tive 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. Illus tratively, law-making may be pointed out with reference to what happened in pursu ance of this section in Ajmer-Merwara. The Bombay Agriculutral Debtors' Relief Act, to be made on any subject. the mischlef of such laying down 1947, has 1951 In re 7'11• Delhi Laws A.ct, 1912, etc. Mahajan I. 958 SUPREME COURT REPORTS (1951] income from sources other extended under cover oi this section to Ajmer-Mcrwara and under the power of modification by amending ddinition of the word 'debtor' the whole policy of Bombay Act has been altered. Under the Bombay Act a person is a debtor who is indebted and whose than agricultural annual and mainly labour does not exceed 33 per cent. of his total annual income or does not exceed Rs. 500, which In the modified statutes "debtor" means ever is greater. an agriculturist who owes a debt, and "agricutlturist" means a person who earns llis livelihood by agriculture and whose income from such source exceeds 66 per cent. of his total income. The outside limit of Rs· 500 is removed. The i=:xercise of this power amounts making a new law by a body which was not in contemplation of the Constitution and was not autho rized to enact any laws. Shortly stated, the question Is, could the Indian legislature under the Act of 1935 enact that the executive could extend that may be made hereinafter by a Timbuctoo or Soviet Russia with modifications. The the negative because the policy answer would be in of those laws could never be determined by making body entrusted with making laws for Delhi. The Provincial legislatures in India under the Consti tution Act of 1935 qua Delhi constitutionally stood on no better footing than legislatures of Timbuctoo and Soviet Russia though geographically and politi cally they were in a different situation. legislature to Delhi The third question concerns section 2 of the Part C States (Laws) Act, 1950, which provides that- to any Part C "The Central Government may by notification in the official gazette extend State (other than Coorg and the Andaman and Nlcobar to any part of such State, with such Islands) or restrictions or modifications as it thinks fit any enact ment which is in force in a Part A State at the date of the notification and provision may be made in any repeal or amendment of enactment so extended for the any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State." S.C.R. SUPREME COURT REPORTS 959 It might, For reasons given for answering questions 1 and 2 ther.ein are ultra vires that the enactments mentioned the constitution in the particulars stated, this question is also answered similarly. however, be that in this case express power to repeal or observed 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 the power to enact exer.cised by an authority that has It is a power co-ordinate and co-extensive with laws. the power of the legislature itself. In bestowing on the Central Government and clothing it with the same capacity as is possessed by Parliament has acted unconstitutionally. legislature itself 1951 -lnre The Delhi Laws Act, 1912 etc. Mahajan 1. In offering my opinion on the questions mentioned I have approached this matter with in the reference great caution and patient attention and having rule that the benefit of reasonable doubt on mind the questions on the constitutional validity of a statute has to be resolved in favour of legislative action. The legislative action, however, the enactments which are the subject-matter of the reference has been of such indefinite nature considered in a drastic and wide and that it is not possible to hold that its full amplitude in every particular these enactments are constitutional. MuKHERJEA J.-This is a reference made by the Mukherjea/. President of India, under article 143(1) of the Consti tution, report to him its opinion on the three following questions :- this court to consider and inviting ( 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 Legis lature which passed the said Act ? (2) Was the Ajmer-Merwara (Extension of Laws) thereof, and in Act, 1947, or any of the provisions 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 thereof, and in what the provisions 1950, or any of - , 1951 In re The Ddhl Laws Act, 1912, etc. Mu/ch.erjea J. 960 SUPREME COURT REPORTS [1951] particular or particulars or the Parliament ? to what extent ultra vires the decision of the Federal Court . The necessity of seeking the advisory opinion of this Court is stated. to have arisen from the fact because of /atindra Nath Gupta V• The Province of Bihar('), 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 regard legislative provisions the legafity of the first and the second mentioned above, judicial being actually called proceedings which are pending before some of High Courts in India. in question in certain the validity of in Council at The Delhi Laws Act, 1912, which is the earliest of the enactments referred to above, was passed in 1912 legislative by the Goveronr-General meeting, . that being legislature constituted for India at that time, under the proVisions of the British group of statutes known as Indian Councils Acts (1861- the 17th of September, 1909). Delhi, which up till 1912, w:ts a part of the province of the Punjab, was created a Chief Commissioner's Province on that date the Governor-General's and on Legislative Council enacted the Delhi Laws Act (Act XIII) 1912 which came into force on and from the in regard 1st of October, 1912. Section 7 of the Act, provides as to which follows :- controversy has arisen, the following date "The Provincial Government may, by notification irt the official gazette, extend with such restrictions and to the province of Delhi modifications as it thinks fit, or any part thereof any enactment which is in force in notification." part of British India at date of The Ajmer-Merwara (Extension of Laws) Act was enacted on the 31st December, 1947, by the Dominion (I) [1949-50] F.C.R 595. S;C.R. SUPREME COURT REPORTS 961 Legislature of India under the provisions of the Govern ment of Indian Act, 1935 (as adapted under the Indian Independence Act of 1947). Section 2 of the Act is in the following terms :- "2. Extension enactments to Aimer-Merwara, -The Central Government may by · notification in the province of Ajmer official gazette 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." extend to 1951 111 re The Delh Laws Act, l91i; etc. Mukherjea J. Part C States (Laws) Act, 1950, bas been enacted by Indian Parliament after the new Constitution came into force and the provision of section 2 of the Act to which the dispute relates is worded thus :- "2. Power to extend enactments to certain Part C States.-The Central Government may, by · notification the official gazette, extend to any Part C State than Coorg and . the Andaman and . Nicobar (other Islands) or to any part of such State with mcb restric tions 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 rnadt in .any enact ment 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." It will be noticed that in all the three items of legis lation, mentioned above, there has been, what may be legislatures which described, as conferment by passed the respective enactments, to an outside autho rity, 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 !aws which are in force in other parts of India but has also been given a right to introduce into such laws, any restric tions or modifications as it thinks fit. The controversy centres round the point as to whether such delegation was or the particular the competency of legislature which passed these enactments. is within 19SI In re The Delhi Laws Act, 1912, etc. Mukherjea J, 962 SUPREME COURT REPORTS [1951] India, the President of The contention of limitations upon delegation by a learned Attorney-General, who represents in substance is that a legislature which is competent 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 to which such delegation should be made is extent legislature entirely a matter for consideration by itself and a court of law has no say the matter. There could be, according learned Attorney the exer General, only two possible cise of such right of competent legislative body. One is legislature cannot abdicate or surrender its powers altogether or bring 'into existence a new legislative power not authorised is that if the constitutional document has provided for distri bution of powers amongst different legislative bodies, powers, which are vested in it, exclusively under the Consti tution. inhibition of delegation by limitations, the doctrine of in a Constitution legislative authority has no place modelled on the English powers recognise These questions obtains are of great require careful consideration. system which the principle of separation of the constitutional instrument· The second It is argued that, save and except legislature cannot delegate, the American syst:em. importance and constitutional to another, that the is expressed in "separation In America the rule of inhibition against delegation legislative powers is based primarily doctrine traditional American powers." Another principle is also called in to aid in support of the rule, which the well known maxim of Private Law, "delegatus non potest the same, being based on delegare", the authority for the dicta of Sir Edward Coke. The modern one of doctrine of "separation of powers" was a leading tenet It was in the political philosophy of the 18th century. lois" elaborated by Montesquieu in explanation of. the English political doctrine and was adopted, in theory at least in all its fulncss and 'in his "L'esprit des 1951 In~ 71te Dellri Lows Act, l91l, etc. Muklerjea I. S.C.R. SUPREME COURT REPORTS 963 le.~slative, and rigidity by the constitution-makers of America. The constitution of America provides for the separation of three basic divisions-. the governmental powers into the executive, judicial-and the powers appertaining each department have been vested in a separate body of public servants. It is considered to be an essent'lal principle(1) underlying the constitution that powers entrusted to one depart ment should be. exercised exclusively by that depart ment without encroaching upon the · powers confided to others. As is said by Cooley,(2) "The different classes of power have been apportioned to different departments ; and as all derive the same instrument, implied exclusion of each functions department conferred upon the others." is an from exercising their authority The other doctrine that it invoked in suppon of anti-delegation rule the well accepted principle of municipal law, which prevents a person upon. whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people. legislature is supposed to be a delegate deriving The its powers from . the the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority. 'people' who are These doctrines, have a restrlcted and practice. Mr. Justice Story said{ 8 th01igh well recognised in limited application ) - theory, in actual "But when we speak of a separation of great departments of Government and maintain that separation is liberty, we It are to understand this maxim in a limited sense. that they must be kept wholly is not meant to allirm and entirely separate and distinct, and have no com link of connection or dependence, the one upon indispensable to public (1) See Kilbourn v. Thomson, 103 U.S. 168 at p. 190. (2) See Cooley's "Constitutional Limitations", 7th Edition, page·126. (3) Story's Constitution, s. 525. 964 SUPREME COURT REPORTS [1951} 1951 In re The Delhi Laws A.ct~ 1912, etc. Mukherjea J. true meaning the other, in the slightest degree. The these departments . is that the whole power of one of should not be exercised by the same hands which possess the whole power of either of the other depart ments : and that such exercise of the whole would sub vert the principles of free constitution." " for practical purposes, both together and are used as arguments against As regards the maxim delegatus non potest delegare, its origin and theoretical basis are undoubtedly diffe rent from those of the doctrine of separation of powers. But, these doctrines are linked invest any other authority Congress attempting legislatlve disability of legislative powers to the executive, purports to be based upon the doctrine of separation of powers ; while its incapa 'independent body city to bestow its authority upon an like a Board or Commission is said to rest on maxim delegatur non potest delegare(' )· powers. According the Congress to delegate to Willis, the practical applicafion of As said above, a considerable amount of flexibility was allowed 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 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. impossible for rules and legislative power, one Thus in America, despite the theory which prohibits delegation of .comes across regulations passed by non-legis numerous lative bodies in exercise of authority bestowed on by the The legis legislature ln some shape or other. lature has always been deemed competent to create a municipal authority and empower it to make by-laws. In fact, such legislation is based upon the immemorial (!) Willis on Constitutional Law, P' 136. 1951 In re The Dehfi Llw8 Act, 1912, etc. Mukherjea J. S.C.R. SUPREME COURT REPORTS 965 to each "The separation qf powers between Anglo-Saxon practice of leaving local com µiunity 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 deter mine the conditions or contingencies under which a statute shall become operative and can empower admi functionaries to determine facts and apply nistrative standards. Congress and the Executive", thus observed Cardozo, J. in his dissenting judgment in Panama Refining Com pany v. Ryan(1), "is not a doctrinaire concept to be made use of with pc:dantic rigour. There must be there must be elasticity of sensible approximation, the practieal necessities of adjustment in response the develop Government which cannot foresee ments of infinite variety". tomorrow in In fact, the rule of non-delegation has so many excep tions engrafted upon it that a well known writer(2) of constitutional tersely difficult to decide whether the excep tions state the rule correctly. expressed the dogma or their nearly law has It does not admit of 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 dm'ing the British rule. Unlike Amencan and Australian Constitutions, 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 judicial powers. Our Constitution, though federal in its structure, is· model led 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 (1) 293 U.S. 388 at 440. (2J See Willis on Consitutionl Law, p; 137. 966 SUPREME COURT REPORTS [1951] Ministers, and British Camnet, which fastens, the legislative part of the State to executive part". this Council of Ministers, is a "hyphen which joins, a buckle 1951 In re The De/Ir Law• Act, 1912, etc. Muklrerfea J. • it was legislature responsible legislature, and the direction of dom'inated a responsible government was There could undoubtedly be no question of the executive being the Delhi Act XIII of 1912 the year 1912, when the executive was passed, but at really altogether absent. It was the Executive Council of the Govemor General which together with sixty additional members, of whom 33 were nominated, constituted the Govemor General' s Legislative Oxmcil and had powers to legis legisla late for the whole of . Bfitish India. The local the provinces were constituted in a similar manner. The first advance in ponsible government was made by the Government of India Act, 1919, which provinces. India Act, 1935, brought autonomy, and ministerial responsibility was established in the provinces subject to certain reserved powers of the Governor. Centre the limited and apart responsibility was still from the discretionary powers of the Governor-General the Defence and External Affairs were kept outside the legislative control. Thus purview of ministerial and relation between the whatever might have been the legislature and the different con stitutional sets ups that existed at different periods of Indian history since the advent of British rule in there has never been a rigid or country, institutional separation of powers exists in America. The Government of introduced dyarchy the executive Provincial In The maxim de/egatus non potest delegare is lying down a rule of the law of times spoken of as than that and it agency ; its ambit is certainly wider 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 delega ting his duties or powers to other persons. The 1951 In re The De/Iii l6ws Act, 1912, etc. Mukherjea J. S.c.R. SUPREME COURT REPORTS 967 theory, India to that the the Constitution itself is a gift of constituted under the application of times. it existed definitely held by the well-known case of Queen v. Burah( 1 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 this maxim, it is essential attract its powers to delegate that the authority attempting itself be a delegate of some other authority. legislature, as it exists in India at The the present the creature of the day, undoubtedly is Indian Con lays down its stitution, which defines its powers and duties ; and people of themselves· But it is not a sound political legislature acts merely as a delegate of the people. This theory once popularised by _Locke and eulogized , by early American writers is ·With regard not much in favour in modern Indian Legislature as in British In&an Councils Act, it was the Judicial Committee it was in no sense a delegate of the British Parlia ment. validity of section 9 of Act XXII of 1869 passed by the Governor-General's Legislative Council. The Act provided jurisdiction of the High Court, effect of excluding 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 Judges of the Calcutta High Court upheld the conten tion of the respondent, Burah, the authority con the Lieutenant-Governor to extend the Act ferred on Governor-General view, one of the learned Judges relied inter alia upon the principles of the law of agency. This view was the Judicial Committee, and Lord Sel negatived by borne, judgment, follows :- the powers of in Council, and 'in support of that certain special the question arose as laws, which had this way was in excess of delivering that case observed In ) (1) S I.A. 178. 1951 The De/hi Law• Act, 1912, etc. Mukher/ea J. 968 . SUPREME COURT REPORTS [1951] "The limits which expressly Indian Legislature has powers limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond powers. littlits, it is not in any But when acting within sense an agent or delegate of the Imperial Parliament but has, and was intended to havt;, plenary powers of legislation as large and of the same nature as those of Parliament itself". circumscribe Practically the same observations were reiterated by the case of Hodge v. The the. Judi~ial Committee in Queen(') while describing the position of the Provincial Legislature under the Canadian Constitution and stress the plenitude of power which such Legislature could exercise when acting within limits prescribed for it by the Imperial Parliament. laid upon the solution of I am quite willing to concede importance need not also be attached to the doctrine -0f separation of powers cannot be of any assistance the problems that require to us In my opinion, too consideration Jn the present .case. maxim delegatus non potest delegare. although as an it embodies a general principle epigrammatic saying that it is not irrelevant for our present purpose. But even then I am unable to agree with the broad proposi tion enunciated by the learned Attorney-General that legislative power per se includes within its ambit a a right for legislative body to delegate the exercise of that power in any manner it likes to another person I am unable also to accept his conten or authority. Indian tion that in the British Parlia Legislature is as plenary as that of ment, and, provided legislation is not one outside the legislative compe legislature in India is able to do through an tence, the agent anything which it could do itself. the subject-matter of field of respect the authority of It is to be noted that so far as the British Parlia limita In the words of Sir ment, is concerned, tion upon its authority or power. there is no constitutional (I) 9 App. Cas. 117. • .. .. 1951 -In re The Delhi Laws Act, 1912, etc. MMkherjea J. S.C.R. SUPREME COURT REPORTS 969 is so transcendent and absolute jurisdiction of Edward Coke(1), "the Power and Parliament cannot be confined, either for causes or persons, within any bounds.................. It hath sovereign and the making, confirming, uncontrollable authority enlarging, abrogating, repealing, reviving and expound- ing of laws .................. this being the place where that absolute despotic power which must in all govern reside somewhere is entrusted by the constitu tion of The British Parliament cannot only legislate on any subject it likes and alter or repeal any legisla tive 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.(2) law it likes, but being both "a these kingdoms." important as those passed by It is not present also in the 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 the British Parl~a­ ment( 3). Indian Parlia ment of the present day which is a creature of the Indian Constitution and has got to exercise its legislative powers with'in the limits laid down by the Constitution itself. Acting in its ordinary capacity as a legislative body, Constitution or the Constitutional or fundamental laws, and its acts can always be ques tioned in a court of law. Consequences of great consti from this difference and they tutional importance the question before us. have a material bearing on The contention of substance is that the power of delegation of legislative authority without any its extent is Indian Parliament cannot go beyond learned Attorney-General touch any of limitation as (1) See Coke's Fourth Institute, P• 36. (2) See Dicey's Law of the Constitution, p. 88 (9th Editition). (3) See Dieey's Law of the Consitution, p. 99 (9th Edition). 1"1 Ia,. TA. Delh L,,,.. Act, 1912, etc. M"""4rJea I. SUPREME COURT REPORTS [1951] legislative power itself. The position simply implicit in the excricse of. the power itself, and in sup port of his contention he refers to the unrestricted rights of delegation which are exercised by the British invalidity of a dele Parilament. But the validity or the British Parliament gation of. legislative power by 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 any likes and no objection to the constitutionality thing it of its acts can be raised in a court of law. Therefore, the British Parliament exer from the mere fact that cises unfettered rights of delegation in respect of the conclusion does not follow that legislative powers, inseparable adjunct of such right of delegation is an is England, no matter, to whichever depart this that the British Parlia ment of the powers exercisable by the right of delegation of• legislative authority may be attributed-and that all the Parliament the sovereign powers are vested in legality of the exercise no objection can be taken to the of such right. But in present day is different. There being a written constitu tions wllich defines and limits the legisla the question whether the right of delegation, either ture, limited or unlimited, is included within, and the right of legislation is a question an integral part of, interpretation of which must be answered on a proper terms of the Constitution itself. We need not for this purpose pay any attention to the American doc trine of separation of powers; we must language of our own Constitution and our express the essentfal principles under approcah should be to law-making which our Constitu lying the process of the Indian Constitution, tion envisages. According to the power of Union Parliament or a State Legislature which is to be constituted in a particular manner and the process of in various legislation has been described articles(1 ). Powers have been given to the President law-making can be exercised by India the position even at there is no dispute rights of the in detail (1) Vide Articles 107 and Ill ; 196 IO 20U. 1951 111 re The Delh Law3 Act, 1912. etc. Mukheriea J. S.C.R. SUPREME COURT REPORTS 971 respective legislatures. Specific provisions the Governor of a State under in article 123 and to article 213 to promulgate Ordinances during recess of 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 responsibility, is a task of the highest importance and and, as our Constitution has entrusted 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, prima f acie presumption must be intention of the Constitution is that the duty of law-making is legislative body to be performed primarily by itself. The power of the Parliament to confer on President legislative authority to make laws and also to authorise the President to delegate the power so con recognised only ferred as an emergency provision in article 357 of the Consti tution. there is :no other provi ston in the Constitution under which the legislature has legislative powers. "It is a well-known rule of construction if a statute directs that certain acts shall be done in a specified manner or by certain . . persons, then . perform ance in ·any other manner than that· specified or by any other persons than those named is impliedly prohi bited (1) ." It has been observed by Baker in his treatise on "Fundamental Laws" doctrine of separation of powers, there are other cogent legislative power cannot ht delegated. reasons why "Representative learned chosen to exercise the power of voting taxes and enacting laws, the most trust known to civil the people are government. The to any other authority has been government" that quite apart from important and sacred Save and except this, expressly authorised representatives of author,{2) "vests the persons to delegate observes ( 1) Vide Crawford's Statutory Construction, p. 334 .. (') Baker's Fundamental Laws, Vol. L p. 287. 16-3 S.C. India/68 ') ... ' 1951 /11r~ T~e De/~i lAws Act, 1912, etc. ~ Mukherjeo J. "72 SUPREME COURT REPORTS [1951] taxpayer to respond and It follows as a self-evident proposition required to exercise wise discretion and a sound judg ment, having due regard for the purposes and the needs judicial department, the ability the executive and the general public welfare. a responsible legislative assembly must exercise its own the observations judgment." In the same strain ate made by Cooley the reason against delegation of power . by the legisla ture is found in the very existence of its own powers. "This high prerogative has been entrusted to rts 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". in his "Constitution Law"(') laws and 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-Merwara Act of 1947 were enacted. Under the Indian Councils Act, 1861, the power of making regulations was expressly vested in a distinct body consisting of the members of the Governor-General's Council and certain additional members who were the Govcmor Gencral for a period of two years. The number of such additional members which was originally from 6 to 12 increased by the subsequent amending Acts and under the Indian Councils Act of 1909, it was fixed at 60, of which Tl 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 this in some of the provinces. legislatures in addition nominated by Section 18 of the Indian Councils Act of 1861 em the Governor-General to make rules for t:he powered conduct of business at meetings of the Council for purpose of making .laws; section 15 prca:ribe.d quorum necessary for such meetings and further pro vided that the seniormost ordinary member could pre side in the absence oi. the Governor-General. This was (') Vidc Pourtb Edition, p, 138. 19Sl In re The Delhi Laws Act, 1912, etc. Mukherjea J, s.c.R. SUPREME COURT REPORTS 973 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 the Governor-General to make ordinances empowered law in case of urgent necessity; having the force of and later on under section 1 of the Indian Councils Act of 1870 the executive government was given the regulations for certain parts of India power to make to which the provisions of the section were declared to the Secretary of State. Besides these be applicable by for which specific provisions were made, exceptions the parliamentary Acts passed is nothing during this period legislative . powers could be exercised by any other person or authority except the Legislative Councils mentioned above. to suggest The Ajmer-Merwara Act was passed by the Domi nion Legislature constituted under the Government of India Act, 1935, as adapted under the Indian Independ ence Act of 1947. The provisions of the Constitution Act of 1945 in regard to 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. that delegation of 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 func tion, however small it might be, would be permissible at all. . The answer is legislative authority could be permissible but only as ancillary to, or in aid of, the exercise of law-making powers by the legislature, and not as a means to be used by proper the latter to respons'ibility or essential duties by devolving the same on some other agent or machinery. A constitutional power may be hd.d to imply a power of delegation of authority which this extent is necessary to effect delegation of a power may be implicit in the exercise of that power. This is on the principle to the exercise ci a power "the everything necessary its purpose ; and to taken to be relieve itself of its own 1951 11« re The Delhi Laws Act, 1912, elc. Mukherjta I. 974 SUPREME COURT REPORTS (1951] legislation must, is implied in the grant of the power. Everything neces sary to the effective exercise of fore be taken to be conferred by the Constitution within that power."('). But it is not open to the legislature function and to strip itself of its essential The primary or essential duty of law-making has got to be discharged by the legislature itself ; delegation may be resorted to only as a secondary or ancillary measure. same on an extraneous authority. legislative Quite apart from the decisions of American courts, the soundness to some of which I will refer presently, I have said already, upon the of the doctrine rests, as essential principles involved in our written Constitu tion. The work of law-making should be done primarily is entrusted, the authority although such authority ,can employ an outside agency the purpose of enabling it to dis or machinery for it can charge its duties properly and effectively ; but on no account the shoulders of an Constitution imposes upon it on agent or delegate and thereby practically abdicate its own powers. responsibility which that duty to which The in more subsequent repeated almost learned Attorney-General in support of position he took up placed considerable reliance on observations of the Judicial Committee in the case of referred to alr, ady Queen v. Burah("), which I have identical and which have been language the Judicial Committee. The Privy nowicement of Council made those observations the purpose of clearing up a misconception which prevailed for a time the Colonial in certain quarters that the Legislatures were mere agents or delegates of Imperial Parliament, and being in a sense holders of mandates from the mandates Privy This Council pointed out, was wrong. The .Indian Legis the matter of that the Colonial Parlia lature, or for limits ment .could, of course, do nothing beyond the latter, were bound to execute conception, Indian or personally. {') Per O'Connor J. in Baxter v. All Way 8 C.L,R. 626 at 637. 'I.A. 178. , > .19Sl 111 re The De/ii Laws Act, 1912, etc. Muk"llerjea /. S.C.R. SUPREME COURT REPORTS <f75 for them by It should be noted the case at all. relied on by the observations mentioned above and as the British Parliament. But prescribed actinl{ withln these limits they were in no sense agents of another body and had plenary powers of legislation the Parlia as large and of the same nature as those of the majority of ment itself. the Judges of the Calcutta High Court in Queen v. impugned Burah(1) proceeded on the view that the provision of Act XXII of 1869 was not a legislation legislative power and but amounted to delegation of Mr. Justice Markby in his judgment relied expressly upon the doctrine of agency. This view of Mr. Jus&ce Mukby was held to be wrong ·hy the Privy Council regards the first and the main point the Jucficial Committee pointed out the majority of the Judges of High Court laboured under a mistaken view of nature and principles of legislation, for as a matter of fact nothing like delegation of legislation was attempt It seems to me ed in that the obser the Attorney-General do not vations the Privy Council Indian Legislative Council had the same unrestricted legislative powers as are pos rights of delegation of If that were so there sessed by was no necesshy 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 w_ithin the amblt of In my opinion, the its authority. object of making the observations was to elucidate the Indian Legislative Council character exercised powers in 'its own right and not as an agent or delegate If the doctrine of agency is of the British Parliament. to be imported, the act of the agent would be regarded as the act of the principal, but the legislation passed by Indian Legislature was the act of the Legislature itself acting witlfin its authority and not of the British Parliament, although it derived its authority from the latter. This view has been clearly legislative powers. the British Parliament. that in the opinion of in which the ambit of It exercised ( 1 ) SI.A. 178. _, , { ' ' SUPREME COUllT REPO.RTS [1951] 11111 I• re Tire Delhi Low1Act,1912, etc. Muklieriea J. expressed by Rand J. of the Supreme Court of Canada while the learned Judge was speaking about the essen tial character of. the legislation passed by the legislative bodies in Canada('). The observations of the learned Judge are as follows :- It was that in their law of Imperial Parliament. "The essential quality of legislation enacted by bodies is that it is deemed to be the law of legislatures of Canada as a self-governing political organization and not within the Empire and law within the Commonwealth, though but it is not law as if enacted at Westminster, that Parlia its source or authority is derived It should be noted further ment." ment in Burah's case( 2 ) 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 con stituted and defined in a particular manner and 4n legislature to go beyond posing a disability on such the specific co~tttutional provisions. Just after stating Indian Legislature was in no sense a delegate that the of the Imperial Parliament the Privy Council observed : "The Governor-General in Council could not by any form of an enactment India and arm with .create in legislative created and authorised by the Councils Act authority a new legislative power Almost in the same strain ·were the observations of the Judicial Committee in In re The Initiative anti Referendum Act, 1919 (3 ; and while speakmg about the powers of Canadian Act of 1867 Lord Haldane said : the Provincial Legislature under ) "Section 92 of the Act of 1867 entrusts the legisla tive power in a province to its legislature only. No doubt a body with a power ·of legislation on the subjects entrusted to 'it so ample as that enjoyed by the provincial legislature in Canada could, while preserving its own capacity intact, seek legislature and to (') See Attorney-Genera/ of No1•a Scotia •· Attof'.lle)'·Genercl •I Canada, (1950) 4 D.L.R., 369 at·p. 945. (') 5 I.A. 178. (') (1919) A. C. 935 at p. 945. S.C.R. SUPREME COURT REPORTS the assistance of subordinate agencies as had been done when in Hodge v. Queen(1) the legislature of Ontario was hdd entitled to entrust to a Board of Commissi<> ners authority to. enact regulations relating to taverns; but it does not follow thit it can create and endow legislative power not created by the Act to which it owes its own existence." its own capacity a new In re The De/ffi . Laws Act, 1912, etc. Mukher}ea J. is almost outside the range of practical It ~s not correct to say that what these observations contemplate is a total effa~ement of the legislative body on surrender of all its powers in favour of another the constitution. Such a recognised by authority not 'fhe observations of Lord Haldane quoted deration. above make it quite clear that his Lordship had mind · the distinction between "seeking the assistance of a subordinate agency. in the framing of rules and to become a part of the law," regulations which are and "conferring on another body the essential legisla tive function which under the constitution should be exercised by the legislature itself." The word "abdica tion" is somewhat misleading, but if the word is to be used at all, it is not necessary in my opinion to con should stitute itself ou~ ci extinguish itself completdy and efface the pages of constitution bequeathing all rights to another authority which is to· step into and succeed to its rights. The abdication contemplated here is authority the surrender of essential legislative even in respect of a particular subje,·t-matter of legis lation in favour of another person or authority which is not empowered by the constitution to exercise fu"nction. legal abdication legislature laws, with reference I will now attempt to set out in some detail the limits of permissible delegation.. in the matter of mak to decided authorities. For this purpose it will be necessary to advert to some of the more important cases on the subject decided by highest courts of America, Canada and Australia. We have also a number of pronouncements of the Judicial India and · the Colonies. Committee in appeals I confess that no uniform view can be gathered from (') 9App. Cas.l17. 1951 In re The Delhi laws Act, 1912, etc. Mwkherjea J, SUPREME COURT REPORTS [1951] the fact these decisions and none could possibly be expected in view of the pronouncements emanate from Judges in different countries acting under the in fluence of their respective traditional theories and weight of opinion of their own courts on the subject. None of these authorities, however, are binding on th;s court and it is not necessary for us to make any attempt at reconciliation. We are free to accept view which appears to us to be well-founded on prin ciple and based on sound juridical reasoning. Broadly speaking, the question of delegated legisla ti01• has come up for consideration before courts of in two distinct classes of cases. One of is known as cases of "condi classes comprise,; what tional generally legislation," where according is present accepted view, the element of delegation that relates not to any legislative function at all, but to the determination of a contingency or event, upon happening of which the legislative provisions are made to operate. The other class comprises cases of delega tion proper, where admittedly some portion of legislative power has been conferred by the legislative body upon what is described as a subordinate take up for . consideration 01 authority. two types of cases one after the other. I will the law its own the authority In a conditional legislation, to determine, by judgment, whether or not full and complete when it leaves the legislative chamber, but the operation of the law is made dependent upon the ful is delegated to an filment of a condition, and what outside body exercise of condition has been fulfilled. "The aim of all legis lation", said O'Conner J. in Baxter v. Ah Way(') "is the future and to provide in terms as general as pos sible for all contingencies likely to arise in the appli cation of is not possible to provide legislation from s1Jecific:illy for all cases and therefore in more the very earliest their minds as far as possible times, and particularly to project law. But (') 8 c.L.R. 626 at 637. 1951 I• re The Delhi Laws Act, 1912, etc. Mukherjea, J. S.C.R. SUPREME COURT REPORTS Cf/9 modern times, has taken the form of conditional legis lation, leaving it to some specified authority to deter mine the circumstances in which the law shall be ap plied or to what its operation shall be extended, or t11e particular class of persons or goods or things to which it shall be applied." In spite of the doctrine of is well £eparation of powers, this form of legislation recognised in the legislative practice of America, and is not considered as an encroachment upon the anti-delega tion rule at ail. As st:ited in a leading Pennsylvania case('), "the legislature cannot delegate its power to make a law; but it can make a law to del~gate a 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 in Queen v. Burah(2). In that case, as to be found said, already, the Lieutenant-Governor of Bengal was given the authority to extend all or any of the pro certain districts at visions contained such time he considered proper by notification in the official gazette. There was no to be perfo1 med by the Lieutenant-Governor himself. The Judicfal Committee observed in their judgment=- in a statute to legislative act "The proper legislature has exercised its judgment 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 legis lation is now absolute." Just four years after case of Russell v. The Queen( 3 this decision was given, the ) came up before the ( 1 ) Locke's Appeal, 72 Pa. 491. (I) SI.A. 178. (') 7 App. Cas. 829. 19SI lit,, he De/hi L11ws A.ct, 1912, etc. Mukherjea J. 980 SUPREME COURT REPORTS [1951] in . Queen Judicial Committee. The subject-matter of dispute 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 majoritv of the electors of that county or the Governor-General by city favouring such a course Order in Council declared the relative part of the Act to be in force. One of the contentions raised before the Judicial Committee was the provision was void as amounting to a delegation of legislative authority to a majority of voters in the city or county. This con the Privy Council, and tention was negatived by v. Burah(') was expressiy relied decision upon. the Judicial Committee, "is that the Act does, observed It not delegate any 'contains within 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 legislation of this kind is in many cases convenient and is certain ly 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." legislatlive power whatsoever. legislation on fulfilled. Conditional "The short answer this question," the whole itself - The same principle was applied by Judici; tl Committee in King v. Benoari Lal Sarma(2). In that the validity of an emergency ordinance by case, Governor-General of India was challenged inter alia on the ground that it provided for setting up of special criminal courts for particular kinds of offences, but the actual setting up of the courts was left to the Provin cial Governments which were authorised up at such time and place as they considered proper. The Judicial Committee held is not dele that "this gated 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 (') SI.A. 178· (•J 72 LA. 57, S.C.R. SUPREME COURT REPORTS 981 by . the judgment of a · 1ocal administrative body as to it! necessity." Thus, conditional legislation has all along been treat.ed in judicial pronouncements not to be a species of delegated legislation at all. It comes under a sepa rate category, and, if in a particular case all the ele the question ments of a conditional to whether in leaving the task of does not arise as determining the condition to an outside authority, legislature acted beyond the scope of its powers. legislation exist, 1951 /11 re Tire Delh Laws Act, 1912, etc. Mukherjea I. the statute itself. As said learned Attorney-General totally abdicate 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 regulations a .subordinate authority and the rules and which are to be framed by the latter constitute an in tegral portion of already, it is within powers of Parliament or any competent legislative legislative body when legislating within legisla field, to confer subordinate administrative and tive powers upon some other authorities. The question is : what are the limits within which such conferment or bestowing of powers could be properly made? It is conceded by functions and legislature cannot invest another authority with all the powers of it possesses. Subordinate lation which is not disputed, must operate under the control of the legislature from which it derives its authority, and on its capacity the continuing operation of which, J. (1) function "a subordinate independent and unqualified authority which is an attribute of true legislative power." It is pointed out by this learned from this legal consequences flow that several Jud.15e legislation. An offence against doctrine of subordinate an offence subordinate against the statute and on the repeal of the statute propositions cannot, and need not, be disputed. BQt, regulations automatically collapse. legislation cannot have said by Dixon rests. As was legislation, legislation regarded far, So ( 1 ) Vide Victoria Stevedoring and General Contr~ting Co.mpany v. Dignan, 46 C.L.R- 13 at 102. 1951 Jn re Th De/hi Laws Act, 1912, etc. Mukherjea J. - 982 SUPREME COURT REPORTS [1951] is proved it can destroy to exist to the learned Attorney-General all that i1 according necessary m subordinate legislation that the legis lature should not totally abdicate its powers and that its control over the subordinate agency it should retain time it likes. If later at any in a particular case, then the character or extent of the powers delegated to or con ferred upon such subordinate agent is quite immaterial and into that question the courts haYe no jurisdiction to enter. This argument seems plausible at first sight, but 011 closer examination, I find myself unable accept it as sound. In my opinion, it is not enough that retains control over subordinate legislature agent and could time it likes, to recall him at any justify its arming the delegate with all the legislative powers to a particular subject. Subordinate legisla:ion not only connotes the subordinate or dept:n <lent character of the agency which is entrusted with the power subordi nate or ancillarv character of the legislation itself. the making of which such agent is entrusted with. If the its essential legislative powers legislature hands over to an outside .authority, in my opinion amount to a virtual abdication of its powers and such limits of permissible an act would be in excess- of ddegation. legislate, but also implied the that would, regard The essential legislative function consists 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 details as it tl1inks proper and it may delegate the rest of the legislative work to a subordinate authority who will the framework of that work out the details within policy. "So long as a policy and a standard established by statute no constitutional dele gation of legislative power is selected instrumentalities subordinate rules within prescribed limits and the determination d to which the legislation is to apply" (1 ). involved in leaving the making of laid down Vicic Sch<chter Poullr1 Corp. v. Uniud State•, 295 U.S. 49~ 1951 In re he Delhi Laws Act, 1912. CiC. Mukherjee, J. S.C.R. SUPREME COURT REPORTS 983 The Supreme Court of America has held in more cases than one that the policy of the law-making body and .the standards to guide the administrative agency may be la.id down in very broad and general terms. It is enough if the legislature lays down an intelligible prin ciple which can be implemented by the subordinate authorities for specific cases or classes of cases(1). The Court has been exceedingly loath to find violation of this principle and in fact there are, only two cases, viz., Panama Refining Co. v. Ryan(") and Schechter Poultry Corp. v. U.S.(3) where the federal legislation was held invalid on the ground that the standard laid down by the Congress for guiding administrative discretion was not sufficiently definite. In Panama Refining Co. v. Ryan(2) Chief Justice Hughes very clearly stated "that is not permitted to abdicate or the Congress manifestly legislative functions transfer with which learned Chief Justice continued, "in which the question has been raised the court has recognised that there are limits of delegation which is no constitutional authority to transcend ...... We think that section 9(c) goes beyond production in excess of state permission the Congress has declared no policy, has established no standard has laid down no rule. There is no requirement, no definition of circumstances anJ · conditions in which to be . allowed or prohibited." the majority view Mr. Justice Cardozo differed from in this case and held that a reference express or implied to the policy of Congress as declared in section 1 was a sufficient definition of a standard to make the statute valid. "Discretion is not unconfined and vagrant" thus observed the learned Judge. "It is confined within banks that keep it from overflowing." the essential invested." "In every case," limits; as to transportation of to others transportation It is interesting to note that in the latter case of Schechter Poultry Corporation(3), where the legislative power w~~ held to b~ unconstitutionally delegated by the National Industrial the prov1s1on of section 3 of ( 1) Vide J. w. Hampton v. U.S. 276 U.s. 394. (') 293 u.s. 388· (1 ) 295 u.s. 495, 1951 In re The Delhi Laws Act, 1912, etc. Mukherjea J, 984 SUPREME COURT REPORTS [1951] to a standard. This Recovery Act of 1933 as no definite standard was up or indicated by legislature, Cardozo J. agreed with the opinion of the Court and held that the dele gated power of legislation which had found expression in that Code was not canalised within banks but was unconfined and vagrant. "Here in the case before us" learned Judge, "is an attempted thus observed ddegation not confined to any single act nor to any class or group of acts identified of described by refer is delegation· running riot. No such plenitude of powers is capable of transfer". As said above, these are the only two cases up till now in which the statutes of Congress have been declared invalid the court has lative powers. invariably the prohibi Congress to satisfy tion against delegation of legislative powers, in all such cases a most liberal construction has been put upon the enactment of the legislature( 1 delegation of essential sufficiently definite standard established by because In ). its essential lay down any principles. The manner We are not concerned with the actual decisions in these cases. The decisions are to be valued in so far ·of to the facts of a particul.ar applying the principles case is not at all material. The decisions referred to above clearly lay down that the legislature cannot part legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of this eS10Cntial function would amount to abdication of legislative powers in the eye of law. The policy may be particularised the leg~lature thinks proper or as many words .as and it is enough if an intelligent guidance is given interfere the subordinate authority. The Court can if no policy is discernible at all · or the delegation to amount to is of such an indefinite character as abdication, but as in determining whether there is necessity legislature the discretion vests with in as (1) Sec Opp Cotton Mills v. AdminisfraJor of Wages, 312; U.S. 126; Yaku> v. United StnteJ, 321 U.s. 414; American Pr. & Lt. Co. v. Securi· ties and Exchange Comntisnon, 329 U.s. 90-

19.51 In re The De/hi laws Act, 1912, etc. Mukherjeo J. SUPREME COURT REPORTS 985 respect therefore have the constitution:il position to be disturbed by the court except the British Parliament limitation the American is a basic difference between for delegation or not, the exercise of such discretion is not in clear cases of abuse. These I consider to be the fundamental the powers of the legis principles and India approxi lature the English mates more pattern. There respect. Indian and restrain There is no constitutional British Parliament from assigning its powers where Indian Parliament qua legislative it will, but body is fettered by a written constitution and it does the sovereign powers of the British Par not possess liament. The limits of the powers of delegation in India to be ascertained as a matter of construction from the provisions of the Constitution itself and as right of delegation in the exercise of legislative power may be to make is necessary the exercise of the power effective and complete. It is said by Schwartz in his work on American Admi nistrative Law "that these doctrines enable the Ameri the growth of executive can courts to ensure power necessitated by rise of the administrative process will not be an uncontrollable one. Delegation of powers must be limited ones-limited either by legislative prescription of ends and means, or even of details or by limitations upon the area of the power delegated. The enabling in other words, contain a framework within which the execu tive action must operate"(1). implied the extent legislation must, I have said that the report of It would be worthwhile mentioning in this connec . the Committee on Ministers' Power recommended something very much similar to thi~ A~erican doctrine as a proper check on delegated leg1slaaon. The report says that "the precise limits of a confer on a Minister should always be expressly defined the statute which confers it, when in clear language by discretion is conferred its limits shou\d be defined with law-making power which Parliament intends {') Scbwrtz'• American Administrative Law, p. 22. 1951 Iii re: lte Delhi Laws Act, 1912, etc. MukherjeQ J. 986 SUPREME COURT REPORTS [1951} the United Kingdom it equal clearness"('). It is true that what m America is a question of vires and is subject to scrutiny by courts, is a question of policy having a purely political significance. But the recommendation of the Committee would clearly indi cate that the rules laid down and acted upon by the can be American Judges particularly sound democratic supported on perfectly clear and principles. later years ... I will now advert to the leading Canadian and Aus tralian cases on the subject and see how decision the principles set out above. Many of these Canadian cases, it may be noted, went up on appeal to the Judicial Committee. lend support regulating the use of the decision of the Court of Appeal I will start with the case of Hodge v. The Queen(') which came up before the Judicial Committee on appeal Ontario in the year 1883. The facts of the case are quite simple. The appellant was convicted for permit ting and suffering a billiard table to be used and a game of billiard to be played thereon in violation of a reso lution of the License Commissioners who were autho rised by the Liquor License Act of 1877 to enact regula taverns, with power to create offences aild annex penalties thereto. One of the questions raised was whether the Ontario Legis lature could delegate powers to the License Commis sioners regulations by which new offences could be created. The Privy Council agreed with the High Court in holding that the legislature . for Ontario was not authority in any sense exercising delegated from the Imperial Parliament and it had full authority to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subject specified in the enactment and with the object of carrying the enactment into operation and effect. It was observed :- "Such an authority to · legislation; ...... the very full and very elaborate judgment of the is ancillary (') Vide Report, page 65. (') 9 App. Cas. H7. S.C.R. SUPREME COURT REPORTS Court of Appeal contains abundance of precedents for the legislature entrusting a limited discretionary autho rity to others and as many illustrations of its necessity and convenience." 1951 ~111 re The Delhi Laws Act, 1912 etc. Mukhe1jea J. tavern regulate legislation supreme within the same authority as the Ontario its own this case. But although they described that what was delegated by the power It will be seen the License Commissioners Ontario Legislature was simply licenses. There was no question of parting with subSitantial legislative powers Privy Council stated clearly sphere lature was quite the Imperial or a~d enjoyed the Dominion Parliament, the power delegated as authority ancillary expressly referred the "abundance of precedents for the legislature entrusting a limited discretionary autho rity to others." There was no necessity for the Privy Council to use the guarded language it used if in fact right of delega the Ontario legislature had the same the British Parliament. It would be pertinent to note that Davey, Q.C., who appeared judgment appealed against, did not contend before the Privy Council that the Ontario legislature had full rights of delegation like the British Parliamentary and consequently its acts could not be challenged as unconstitutional. His argu ment was that in this case there was no delegation of legislative authority and what was delegated was only legislative authority the power the essential legislative function as distinguished from the power to make rules and regulations and the arguments implied that the essential legislative powers could · not be dele gated at all. to make by-laws. By learned Counsel apparently meant the Crown in support of the its powers as The case of Powell v. Appollo Candle Co.(1) is the next case in point of time which has a bearing on the question before us. That case came up on appeal from a decision of the Supreme Court of New South Wales and the question arose whether section 133 of (!) 10 App. Cas. 232. 17-3 S. C. India/68 19$1 In re The Delhi Law1 Act, 1912 etc. Mukherjea I. 988 SUPREME COURT REPORTS (1951] it was quite within the Customs Regulation Act of 1879 of the Colony, was or was not ultra vires . the Colonial legislature. The attack on the validity of the legislation was inter alia on the ground that it conferred upon the Govern ment power to levy duty on certain articles which in the opinion of the Collector were substituted for other dutiable articles. The question was whether power could be validly conferred. The Privy Council the provision was had no difliculty in holding that perfectly valid and the compe tence of the Colonial legislature which was in no sense a delegate of the Imperial Parliament, to confer a dis cretion of this character on the executive for the pur pose of making the statute properly effective. The policy of the law as well as the main principles were itself. What was left to the laid down executive was a power to enforce the provisions of Act more properly and effectively by levying duties on articles which could be used for similar purposes statute. the standard . and The . legislature the executive it was officers. the dutiable articles mentioned itself sufficiently definite laid down to guide the Act the Governor-General I now come to the decision of the Supreme Court of Canada in In re Gray(') which was decided during the first world war. The Dominion War Measures the Dominion Parliament of Act, 1914, passed by Canada empowered to make "such regulations as he may, by reason of the existence of real or apprehended war ........ deem necessary Or the security, defence, peace, order and advisable for welfare of Canada"; and the question arose• whether such transfer of power was permitted by the British North America Act. The Supreme Court decided by a majority of four that the Act was valid, though the Judges who adopted the majority view were not unanimous regarding the reasons upon which purported Justice was of the opinion that there was nothing in the Cons titutional Act which so far as material to the question to base their decision. The Chief to two (I) S7 C. C.R. UO. 1951 In re The Delhi Laws Act, 1912 etc. Mukherjea J. S.C.R. SUPREME COURT REPORTS 989 inconceivable legislative powers by under consideration would impose any limitation on the authority of the Parliament of Canada to which the Imperial Parliament was not subject Anglin J. refer red to the decision in Hodge v. The Queen(1) (supra) in the course of his judgment. He seemed to think · that the British North America Act did not contemplate complete abdication of the · Dominion Parliament, but considered such abdication to be something so the constitu tionality of an attempt to do anything of that kind was outside the range of practical consideration. Appa rently the learned Judge gave· the expression "abdica tion" a very narrow meaning. ·The opinion of Duff J. was much the same, and he considered that there was no abandonment of legislative powers ·in this case, as the powers granted could at any time be revoked and anything done thereunder nullified by the Parliament. Idington and Brodeur JJ. dissented from this majority view. This decision was followed in the "Reference in the Matter of the Validity of the Regulations in Rela tion to Chemicals Enacted by the Governor-General of Canada under the War Measures Act", which is to be found reported in 1943 S.C.C. 1. the Governor In this case the question raised related to the validity of certain regulations made by an Order in Council in terms of the powers conferred upon Council by the War Measures Act and the Department -0£ Munitions and Supply Act. It was held that with the exception of paragraph 4 of the Order in Council the rest of the Order was no ultra vires. It appears from the report that in this case it was not disputed before the that powers could be delegated by the legisla ture to the Governor the War Measures A~t. The question raised was whether the Governor in Council could further delegate his powers to subordinate ·agencies. The question was answered the affirmative, the reason given being that the power of delegation being absolutely essential in the circum the War Measures Act has been stances for which so as to have a workable. Act, the power, designed in Council under (I) 9App. Caa.117. 1951 . lrt ft Tire Delhi u.,,, Aet, 1912 etc. lll•khe"Jea J. 990 SUPREME COURT REPORTS [1951} delegated must be deemed to form part of the powers conferred by Parliament in the Act. the security of In In re Gray(') legislature can possibly formulate These are war time decisions and it is apparent the doctrine of delegation has been pushed too far in the Chemical Reference case. learned Chief Justice at the conclusion of his judgment expressly stated the country was the supreme law against which no other law could prevail. I agree with the Attorney-General competency of the Parliament to legislate could not be made dependent upon the fact as to whether the law was a war time or a peace time measure. But on the other hand, it is possible to argue that in a legislation passed by a Parliament in times of war when the liberty and security of the country are in jeopardy, the only policy policy of effectively carrying on the war and necessarily implies vesting of all war operations in the hands of the executive. There appears to be consider able substance in the observations made by Dixon J. (2) that "it may be considered that the exigencies which must be· dealt with under the defence powers are so many, so great and so urgent and so much the proper concern of the executive that from its very nature the to authori~e power appears by necessary otherwise delegation legislature." It may be mentioned here that the deci- · sion in In re Gray(') was sought to be distinguished in a subsequent Canadian case on the ground that in case of emergency it was possible to pass legislation of this sort by taking recourse to the residuary powers con ferred on the Dominion Parliament by section 91 of the North America Act(8 forbidden by intendment generally ). In point of time, the case of In re The Initiative and Referendum Act(') comes immediately after that of In re Gray('). The dispute in this case related to an Act {I) 57 S. C.R. ISO. (~)Vide Victoria Stevedoring and General Contracting Co. v. D/glfon, 46 C. t.ll. 73 at p. 99. (3) Vide Ctdit Jo'roncier v. Rol8, (1937) 3 ·n.x..R. 365; (,) 11919) A~"C; 935, 19Sl I• re Tire Dellti Law1 Act, 1912 •tc. S.C.R. SUPREME COURT REPORTS 991 passed by the Legislative Assembly of Manitoba, which provided that laws may be made and repealed by the direct vote of the electors of the Province at large. The Privy Council held the Act to be ultra vires primarily the Lieutenant on the ground that it would compel Governor of the Province to submit a proposed law to a body of voters totally different from the legislature of which he is the constitutional head and render him powerless to prevent it from becoming an actual law if the voters. Towards the end of the approved of by judgment, Lord Haldane made the observation which I have referred to already, and it clearly shows that in the opinion of the Judicial Committee, while it was the Provincial Legislature in Canada to seek the assistance of subordinate agencies in the matter of enacting regulations it did not follow from that that it could create and endow with its own capacity a new legislative power not created by the Act to which it This observation unmistakably indicates that in Canada where there is a written cons it has · otherwise titution, plenary authority, is not entitled to confer unfettered legislative capacity on other bodies although it can take the help of subordinate agencies in the matter of framing regulations. its existienq:. legislature, though The case that next demands our attention is that of Credit Froncier v. Ross(1). The controversy in this case centered round the validity of section 12 of the Alberta Reduction and Settlement. of Debts Act, and the lega lity of the section was · impeached on the ground that the power it conferred upon the Lieutenant-Governor to declare from time to time that any kind or descrip tion of debt was a debt to which the Act would not apply. The Court of Appeal held the provision to be ultra vires as it constituted an unwarranted delegation the Lieutenant-Governor Harvey C.J. after quoting a passage from the judg· ment of the Privy Council in Hodge v. The Queen (supra), observed as follows ;- legislative authority {I) (1937) 3 O.L.R .365. 1951 The Delhi Law1 Act,1912 etc. MukherJ<a J. 992 SUPREME COURT REPORTS [1951} in order "It is apparent that the authority to make regu. Jilllke legislation enacted by the lations legislaure completely effective is quite a dilfererit thing from authority to Jilllke an independent rnact, ment. This is not ancillary to legislation but is legis lation itself." Referring next to the case of In re Gray, the learned Judge further observed.:- "It is urged that . •he decision of the Supremc Court in In re Gray' ( 42 D.L.R. 1) supports the view that. the section is intra vires. In that case, there had undoubtedly .been legislative authority to the Governor. General .. in Council. But, as pointed out, that was a It was war measure case of emergency. and urgency. and it has more than once been pointed out by the Judicial Committee that in such a_ case the residuary power conferred by section 91 up0n the Dominion Parliament may be resorted to. This is neither a war time measure nor is it Dominion legislation. So, the case cited would appear to have iio application." that I have This decision, if I . may say so, fully bears out the indicated above. It would be seen that in this case the power conferred on the Lieutenant Governor could be recalled at any time and yet delegation of powers was held to · be bad. The only other Canadian case which should be men tioned in this connection is that of Re Natural Products Marketing Act 1937('), which went up the Judicial Committee. The Natural decision before Products Marketing Act, which was passed by legislature of British Columbia conferred upon the Lieutenant.-Governor in Council the power . to establish the control and regulation of marketing boards for transportation, packing and marketing of natural p~ ducts within the Province. It was a sort of skeleton legislation, moulded on an analogous English statute. Manson J. declared the impugned provision to be ultr11 llires but his decision was set aside by the Court of Appeal. The argument illegally delegated to the Lieutenant-Governor in its function legislature (I) (1937)4 D.L.R. 298. S.C.R. SUPREME COURT .REPORTS ~3 Council because it passed only the skeleton of an Act leaving it to the Lieutenant-Governor to clothe it with flesh and blood and function the appellate court and Martin C.J. was repelled by .submission depends obstirved : "the answer the statute and all that l can language . of say is that after reading the whole statute it does not support the argument." thereby abdicating 1951 ln·re The Delhi Laws Act, 1912 eic. Mukherjea J. regulations law complete Thus, in substance what was decided was that there was no delegation of real legislative powers, and what was conferred upon the Lieutenant-Governor in Council was the authority to make rules and the standard and policy which . the conformity with statute itself laid down and for the purpose of making in all its aspetts. An appeal was taken· from this decision to the Privy Council(1), and the Privy Council dismissed the appeal agreeing with the reasons given by Martin C.J. in his judgment in the Court of Appeal. "Within its appointed sphere." the Judicial Committee, "the Provin thus observed cial Legislature is as supreme as any other Parliament, and it is unnecessary to cry to enumerate the innumer able occasions in which· legislaturrs, both Provincial and Dominion and Imperial, have· entrusted various persons and bodies with similar powers to ·those con though tained in the Act." The Judicial Committee, reiterating the supremacy reasons given by· Martin C.J. , in the decision on Court of Appeal. The conclusion must therefore neces sarily be there is a rule against grant of essential legislative power but the rule was not violated in the present instance. its previous . decision about the Dominion Parliament, did really · base tl1at • - It remains to notice two more devisions which are of the High Court of Australia. The first of these. is the case of Baxter v. Ah Way(2) and the point raised there related Customs Act, 1901. The Act specifically prohibited (I) Vi4e Sha11non v. Lower Mainland Dairy Product~ Board, [1938) the validity of certain provisions of A.c.1os; (2) 8 C, L. R. 626. 1951 111 re The D•llti Law:1 Act, 191! etc. 994 SUPREME COURT REPORTS [1951] It was held the importation of certain goods and gave a power to the Governor-General include, by pro in Council clamation, other goods in the category of prohibited imports. that although prohibition of imports was a legislative act, there was no delegation of legislative authority aQd the nature of Governor-General conditional Justice observed in his judgment that unless the legislature was prepared lay down once and for all a list of prohibited goods, to make prohibition depending upon a condition and the condition may be fact. The duty of ascertaining such fact can very well be left to an outside body. the pbwer given into existence or discovery of legislation. The Chief they must have power in Council was coming It may be stated here that the legislation in this case did not fully comply with the requirements of a conditional legislation. What was left to the executive was not to determine any condition or contingency upon the happening of which the legislation was to be operative, but they were to add to the list of prohibited imports in the exercise of their own judgment; The decision, however, can be supported certainly on the principle of subordinate legislation as discussed al ready. The policy was declared with sufficient clearness and the standard was also laid down by enumeration of certain specified articles. The executive officer was simply to make additions to the list of prohibited im ports by applying the same standard. The other case is that of Victoria Stevedoring and General Contracting Company v. Dignan('). The con the validity of troversy in this case was in regard section 3 of the Transport Workers Act, 1928-29, which purported power of making regulations not inconsistent with the Act with respect to the employment of transport work ers and in particular for regulating the engagement, service and discharge of such workers, and the licens ing of persons engaged as transport workers and sevcr21 the Governor-General to confer upon (I) 46 C. L. R. 73. Tiie Delhi LllWI Act, 1912 etc. Muklierjea J. • s.c.R. SUPREME COURT REPORTS 995 policy chalked character initiating judgment of observations of diverse learned Judges, actually decided on large discretion industrial policy was other matters. It was held by the High Court that it was within the legislative power of the Commonwealth Parliament to confer upon the Governor-General to. make such regulations. There could be no doubt about the correctness of this decision, for the power that was conferred upon the Governor-General was only to make regulations not inconsistent with the provisions of the Act and in regard to matters which legislation itself. That the were fully described Governor-General was given matter of really immaterial so · long as . the regulations were within the legislature. The case was the authority of a prior decision of the Cpurt in Roche v. Kronheimer(1) • There though all of them· concurred in holding that the case was concluded by earlier authorities. The Chief Justice and Mr. Justice Starke seem to be of opinion that there was no real delegation of legislative powers in this case even if there was, no prohibition against such delega tion could be urged on the ground of separation of powers which was not accepted in its rigidity in the Australian Commonwealth regard to the judiciary. The learned Judges referred in course of their the decision of . Baxter v. Ah Way(2) judgment though that case was decided on a different principle altogether. Rich J. regarded Roche v. Kronheimer( 1 ) as authorit.y for the proposition that an authority of subordinate law-making might be invested in the exe cutive. Dixon J. discussed the doctrine of separation of powers and also the maxim of delegatus non potest delegare in an elaborate manner and his conclusion was that delegation was permissible, though he did not speak of any limits within which such right was to be exercised. The learned Judge observed, however, "this does not mean that a law· confiding authority to the. executive will be valid, however, extensive or vague except in (I) 29 C.L. R.329. (2) 8 C.L.R. 626. 1951 In re. The Delhi Laws Act, 1912 · etc. Mukherjea /. 996 SUPREME COURT REPORTS [l951J seemed the subject-matter may be, if it docs not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject-matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power." Evatt J. to be doubt ful as to whether this power of law-making in respect of a particular item in the legislative list carries with it the power of delegating legislative powers in respc€t of the same, Thus "section 51 ( 1) of the Constitution," observed the learned Judge "operates as a grant of power to the Commonwealth Parliament to regulate !he subject of inter-state trade and commerce but the grant itself would not be truly descri~d as being a law with respect to inter-state trade and commerce." It was law-making said further "the greater power conierred, the less likely is it that the enactment will be a law with respect to any subject-matter assign ed to the Commonwealth Parliament." It is diflicult fo gather any uniform or consistent principle from the judgments of the several discussions appearing in learned Judges. But the actual decision, as I have said already, can be supported on the principle which I have attempted to formulate. the extent of I have the executive has been upheld In my op1mon, barring a few exceptions the deci sions of the various courts set out above do lend a fair measure of support taken. The exceptions really relate to cases where under War Measures Acts delegation of almost unlimited powers of legislation I have. alreadv said how these decisions court< of law. have been sought exceptional justified . on grounds. At any rate, there is no necessity of intro ducing in our the Indian Constitution adequate country, for under provisions have been made in express terms to meet the emergencies of war and other extraordinary cir cumstances and not only the President has been empowered to make law after a proclamation of emer gency has been issued, but he ·can be given authority to his subordinate offic.ers to delegate such powe..rs interpretation of strained to be

#19. Sl In.re· The De 1.Qws Act, 1912 etc. Mukherje11 J, s.c.a. SUPREME COURT REPORTS , must retain to be ascertained the . Constitution and also('). On a consideration of all these decisions I have no hesitation in holding that as . regards constitution· ality .1)f the delegation of legislative powers the Indian Legislature cannot be in the same position as the omni.: potmt British Parliament and how far delegation is permissible has got in India as ·a matter of construction from the express provisions of Indian Constitution. It cannot be said that an unlimited right of delegation is inherent in the legisla tive power itself. This is not warranted by the provi sifilnb of legitimacy of dde.gatioa depends entirely upon its being used as an legislature considers to andllary measure which . the be necessary for the purpose of exercising its legislative legislature powers effectively and completely. The in· its own hands the essential legislative functions which consist legislative in declaring the standard which is to be policy and laying down enacted into a rule of law, and what can be delegated is the task of subordinate legislation which by its very to be statute which delegates the nature power to make it. · Provided the legislative policy c1)Unciated with sufficient dearness or a standard laid interfere with clown the courts cannot and should· not the discretion that undoubtedly rests with legi~ the extent of delegation in determining lature necessary in a particular case. These, ih my opinion, limits within which delegated le~islation is constitutional provided of course i~ competent to deal with and legislate on the particulai subject-matter. these principles validity that I propose to examine of the three legislative provisions in respect to which the reference has been made. the constitutional is ancillary legislature light of It is itself the first thing for consideration I will begin with section 7 of the Delhi Laws Act subject-matter of . legislation is one upon which the Governor-General's Legislative Council, as it exist ed in t.he year 1912, was competent to legislate under the terms of the Indian Councils Acts from which it is whether ( l) Vide Article 357 of the Colllititution. 1951 In re The Delhi Law1 Act, 1912, etc. 998 SUPREME COURT REPORTS [1951] derived its powers. As has been stated already, Delhi, which was a part of the Province of Punjab, was detached from the latter and became, as the Imperial issued enclave, a separate province by a notification on the 17th 0£ September, 1912. This small area was placed under a Chief Commissioner. The existing laws were continued under section 2 of the Delhi Laws Act and section 7, as it stood originally, was worded as follows:- "The Governor-General in Council may by notifica tion in the Gazette of India extend, with such restric territory tions and modifications as he thinks fit, to the mentioned in Schedule A or any part thereof arty enactment which is in force in any part of British India at the date of such notification." in Council the Governor-General time when the notification was Now, the powers of the Governor-General in Council arc r.xercised by the Provincial Government which, so far as a Chief Commissioner's Province is concerned, the Central Government and the words "Pro vince of Ddhi" have been substituted for the expres sion "territ.ory mentioned in Schedule A" which was the description of the Delhi Province at that time. that the section conferred The position, therefore, is the power to make suitable choice out of the enactments which were actually in force in any other part of British India at the issued and extend the same with such restrictions and modi fications as it thought fit to the Province of _Delhi or any part of it. In 1912 the Government in India was unitary in its character and there was nothing distribution of powers between the Central and Provincial Legislatures or an enumeration of topics in respect to which legislation could be made, Section 22 of ~e Indian Councils Act, 1861, provided that "the Governor-General shall have power at meetings for the purpose of making laws and regulations .. , .......... , ........ to make laws and repealing, amending, or altering any regulations for in force or here laws or regulations whatever now territories now in force in Council Indian to be in the S.C.R. SUPREME COURT RE.PORTS l?Sl l1tre The Delh Law1 Act; 1912 etc. MMlclter/ea /. Indian formed therefore, regulations the widest justice whatever, and for all places and the Dominion of Her Majesty, and to make persons, whether British or native, foreigners or others for all courts things whatever within territories ........ " There were certain conditions annexed to the exercise of these powers by means of a number of provisos but for our present purpose. conditions are not material It · seems, legislative powers given the Governor-General's Legislative Council were language possible, and as no couched in legislation was mentioned specific subject-matter of legislation could extend to all subjects touching any person, place or territory. thing within the The Delhi Laws Act obviously related to a particular place or area, namely, the Province or Delhi and atfect~d persons who were residents within that area; and as to its subject-matter it must be held to comprise everything subject-matter of any enactment in force in British India at the time when issued. Having any notification under section 7 · was regard the Indian Councils Act, 1861, and the almost unlimited powers the Governor-General's Legislative Coun conferred on cil, it is, I think not possible to say lature was incompetent to legislate on the matter. To quote the language of the Judicial Committee in Queen v. Burah(1) what was done was legislation within the scope of the affirmative words used by the constitu tional instrument which gave the power and it -violated no express condition or restriction by which power was limited. The question now arises whether there was an unwarrant.able delegation of legislative powers If the com petent legislature had framed a statute and left it to an outside authority the operation of the to extend whole or it, by notification, to any it would certainly be an instance of particular area, discussed above and no conditional question of delegation would really arise. The position language of section 22 of the executive government. al!Y part of legislation (l) S I. A, 178 at P• 194. 19,1 Jn r~ Tlie .Delhi Laws Act, 1912, etc. Mukherjea J. 1000 SUPREME COURT REPORTS [1951] in applying two circumstances. in reality created by locality. The difficulty In the Central Government was given would not be materially different, if instead of framing a statute, the legislature had specified one or more existing statutes or annexed them by way of a sched fo the Act and had given authority to a subordi nate or administrative agency to enforce the operation of any one of them at any time it liked to a particular It could still be said, in my opinion, that in such area. circumstances the proper legislature had exercised judgment already and the subordinate agency was merely to determine the condition upon which the pro visions already made could become operative in anv particular principle of conditional legislation to the present case first place, power to extend to the Province of Delhi not only any enactment which was in force at time when . the Delhi Laws Act was passed, but any law which might come into force in future, although at the time when the Act was passed the legislature could not possibly apply its mind to such future legislation. The other circumstance is that the Central Government was given the right not merely to extend either wholly or in part the provisions of any enactment in force in any other part of India the Province of Delhi but it could introduce these provisions with such modifications and restrictions as whether these facts indicate a surrender of the essen tial powers of legislation by the legislature. The point does not seem to be altogether free from difficulty, but on careful consideration I am inclined in the negative. As I have already said, the question essential legislative power consists legislative policy and enacting it into a . binding rule of law. With the merits of the legislative policy, the court of law has no concern. It is enough if it is defined with sufficient precision and definiteness furnim sufficient guidance to the executive officer who has got to work it out. If there is no vagueness or indefinite ness in the formulation of the policy, I do not that a court of law has got any say in the matter. The it considered proper. ·'the question in formulating to answer so as • 1951 Inr~ The Delhi. Law1 Act, 1912, etc. Mukherjea J. S.C.R. SUPREME OOURT REPORTS 1001 to make policy behind the Delhi Laws Act seems to be that in a small area like Delhi which was constituted a sepa rate province only recently and which had neither any local legislature of its own nor was considered to be of sufficient size or importance to have one the near future, it seemed to the legislature to be quite fit and proper laws validly passed and in force: in other parts of India should be applied to such area, subject to such restrictions and modifications as · might be necessary law suitable to the local conditions. legislative body The existing the power of making selection statutes as to the Province of Delhi, should for being applied rest with in Council which the most competent autho was considered requirements of is apparent the Province. That this was from several other legislative enactments which were passed prior . to 1912 and which would show that with regard to areas which were backward or newly acquir ed or extremely small in size aqd in which it was not considered proper legislative machinery all at once, this was the practice adopted by the legislature at that time. to be the necessities and the suitability of any one of the Governor-General introduce the regular thought the policy type of Act XXII of 1869, which was the subject-matter of controversy before the Judicial Committee in Queen v. Bura/1(1) may be mentioned as one of the earliest instances of legislation. This Act was passed by the Governor-General's Legislative Council and the primary object, as laid down in section 4 of the Act, was to remove a district known as Garo Hills which was peopled by aboriginal tribes from the juris diction of the Courts of Civil and Criminal Judicature and from the control of the offices of revenue consti tuted by the regulations of the Bengal Code and other Acts of the legislature then or theretofore established in British India and from the law prescribed for such Courts and offices by such regulations and Acts. Sec the administration of civil and tion 5 provided Cl) SJ, A.178. 1951 In rt The De/hi law• Act, 1912, etc. Mukherjea J. 1002 SUPREME COURT REPORTS [1951} "may criminal justice within the same territory was to vest in such officers as the Lieutenant-Governor of Bengal might from time to time appoint. Section 8, which i$ further the section material for our present purpose, laid down that the Lieutenant-Governor time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of territories subject any law now in force in the other to his Government, or which may hereafter be enacted by the Council of the Governor-General, or of the said Lieutenant-Governor, for making laws and regulations, and may on making such extension direct by whom the provisions so any powers or duties incident extended shall be exercised or performed." Then came the Lieutenant-Governor section 9 which enabled extend these provisions the Jaintia and Naga Hills and to so much of the Khasi Hills as formed part of British India. < judgment to delegation of to make what Judicial Committee the provision did not enable the Act conferring power upon The Privy Council held, as stated already, that the 9th - section of to determine whether the Act or Lieutenant-Governor any part of it should be applied to a certain district, legislation and did not was a form of conditional legislative powers. In course amount referred the provision of section 8 set out above and also to observed legislation he Lieutenant-Governor pleased, but he was only to apply by public notifica law or part of law which either already was or from time to time might be in force by proper legislative authority in the other terri implication tories subject to con clearly is that section 8 also did not amount legislative power upon the Lieutenant ferring of any to be noted, not only Governor. Section 8, authorised existing legislation into the territories specified in the legislation which might come into Act, but also any existence in future. It can be said, therefore, that a policy could be enunciated with regard to the extension the Lieutenant-Governor to his Government. The to that district any extend S.C.R. SUPREME COURT REPORTS 1003 of future legislation also. The provision of section 8 of Act XXII of 1869 was, however, not on all fours with that of section 7 of the Delhi Laws Act· and there two material points of difference between them. In the first place, there was no power of modification given the Lieutenant-Governor under Act XXII of 1869 and in the second place, the laws to be extended under the provision of section 7 of that Act were laws which were in force the other territories subject to administration of the. Lieutenant-Governor himself. 19S1 ln re The Delhi Lows Act, 1912, etc. Mukherjea /, passed "excluded" aboriginal population In 1874 an Act known as the Scheduled District Act the Governor-General's Legislative expression Council. The "Scheduled District" or "backward tracts" corresponds to what were sequently described "partially excluded areas" in Chapter V of the Government of India Act, 1935, and there being a substantial element .policy pursued by the Government was not general rules of law and procedure obtaining in other pa$ of the country applicable them. Under sec tion 5 of this Act, the loC:al government with the previous sanction of the Governor-General in Council time to time bv notification in the was authorised from official gazette the scheduled districts or to any part of any such district any enact ment which ·was in force in any part of British India at the date of such extension. Section 5 (a) further provided as follows :- to make to any . of these areas to . extend section 5 of thereof under in Council may declare "In .......... extending an enactment to a scheduled district or part Act local government with the previous sanction of the Governor-General operation of the enactment to be subject to such rest thinks rictions and modifications as that Government fit." Thus the two sections takeri together would be almost identical with the provision of section 7 of the Delhi Laws Act, and the power of extension conferred on the local .government applied to . statutes prevailing in anv part of British India and not onlv 13-3 S.C. Ind ia/68 1951 T.6e Delhi Laws A.ct, 1912, etc. Mukherfea I. 1004 SUPREME COURT REPORTS [19511 territories subject to government. the administration of Another instance of this class of legislation is nished by the Burma Laws Act, 1898, and section 10 ( 1) of that Act ran as follows :- "The local government with the previous sanction of the Governor-General may, by notification in Burma Gazette, extend with modifications as it thinks fit to all or any of . the Shan Estates or to any specified local area in the Shan Estate in any part of any enactment which Upper Burma at the date of the extension." restncuons in force This legislation also is on all fours with the Delhi though the choice of the executive govern Laws Act, ment in the matter of extending the laws was confined to the statutes in force in Upper Burma alone. is entrusted Though the instances are not many, yet they do furnish evidence of a legislative practice which is also noticed in a number of instances subsequent to the passing of the Delhi Laws Act. At any rate, it gives an indication of the policy which underlines such enact ments, and it would be no unconstitutional delegation if the executive government to do any ad within the framework of that policy. Of course to change the policy the delegate cannot be allowed declared by the legislature and it cannot be given the power to repeal or abrogate any statute. This leads us to the question as to what is implied in the language of section 7 of the Delhi Laws Act which empowers the Central Government to extend any statute in force in any other part of British India to the Province of Delhi wih such "modifications and thinks fit. The word "restrictions" does not present It connotes limitation imp<>Sed upon much difficulty. a particular provision so as to restrain its application or limit its scope. involve any change in the principle. It seems to me that in the context, and used along with the word "restric the word "modification" has been employed tion" also in a cognate sen.~ and it does not involve any It does not by any means restrictions" as 1951 In re The Delhi Laws Act, 1912, etc. Mukher}ea J. S.C.R. SUPREME COURT REPORTS 1005 substantial alteration. The dictionary material or meaning of is to "tone the expres&ion "to modify" down" or "to soften the rigidity of the thing" or "to make partial changes without any radical alteration." It would be quite reasonable. to hold that the word "modification" in section 7 of the Delhi Laws Act means and signifies changes of such character as are necessary to make the statute which to be extended suitable to the local conditions of the pro vince. I do not think that the executive government is entitled to change the whole nature or policy underly- 1ing any parficular Act or take different portions from different statutes and prepare what has been described before us as "amalgam" of several laws. The Attorney General has very fairly admitted before us things would be beyond the scope of the section itself if such changes are made, they would be invalid as contravening the provision of section 7 of the Delhi Laws Act, though that is no reason for holding section 7 itself to be invalid on that ground. is sought In the case of /atindra Nath Gupta v. The Province of Bihar(1), I held in concurrence with some of my learned colleagues that to "modify" as statute amounts to performing a legislative act and this was not dis puted by the learned Counsel appearing for the Pro vince of Bihar. I held also that the conferring of a power to modify an Act cannot be supported on the principle of conditional legislation, and I see no reason to differ from the opinion which I expressed on occasion. Although modificatlion of a Statute is an exercise of :legislative function, whether· confe:rring of in_ the circumstances of a particular such power could, case and having regard to the provisions of a particular statute regarding the nature of tihe modification to be made, be regarded as delegation of ancillary authority to a subordinate agency was not a question raised before - us in /atindra Nath Gupta's case(1) and was not con sidered at all. It is not profitable to discuss for pur poses of this case whether m~r own decision would have raised and been different if that point had been (I) [1949} F.C.R. 596. ) • 1006 SUPREME COURT REPORTS [1951} 1951 T• Deihl /Aw1 Act, 1912, etc. ltlukher}ea J, properly considered, for, after all, the decision would depend upon the language of the particular statute. I do not think to state any that it is necessary for me thing further in regard to the judgment in /atindra Nath Gupta's case which was referred to by both sides in course of their arguments. As the word "modification" occurring in section 7 of the Delhi Laws Act does not, in my opinion, mean or involve any change of policy but is confined alteration of such a character which keeps the policy of the Act intact and introduces such changes as arc local conditions of which the executive appropriate to government is made the judge, I have come to conclusion that there is no unwarrantable delegation of legislative powers in section 7 of . the Delhi Laws Act. ' I now come the Dominion Legislature of the Ajmer-Merwara (Extension of Laws) Act, 1947. section 2 of which authorises the Central Government to extend, by notification in the official gazette, with such restrictions and modifications as it thinks fit to the Province of Ajmer-Mcrwara any enactment which is in force in any other province at the date of such notification. This Act was passed India, functioning under section 18 of the Government of India Act, the Indian Independence Act, (as adapted by 1935 1947); and it is not disputed that Ajmer-Merwara not being a province within the meaning of section 46 of the Government of India Act, the Dominion Legislature under section 100 (4) of the Act had the right to legi~ late with respect to all matters specified in the three to the Seventh Schedule of legislative lists attached the Constitution Act. The policy of this legislation seems to be almost the same as that which underlies section 7 of the Delhi Laws Act and the intention of the Dominion Legislature apparently was that until a local legislative body was set up in this territory, the Central Government should be given the right to select such enactments as were already in force in any other province and introduce them to this territory by public notification with such modifications and restrictions as 1951 In re The Delhi Lawa·Act, 1912, etc. Mukherjea I. S.C.R. SUPREME COURT REPORTS 1007 it thought proper. In my opinion, the grounds which could be urged in support of the validity of section 7 of the Delhi Laws Act can, with equal force, be put forward in support of legislative provision also. There is no want of definiteness of the policy which the legislature has declared and the word "modifica tion," as explained already, is to be confined to altera tions of such character which do not involve any radical change of policy and are made only for the purpose of ma.king the transplanted legislation suitable to the local conditions of the particular area. If these limitations that would · constitute a violation of section 2 of the Ajmer-Merwara Act, and on legislation could be impeached; but the section itself cannot be held to be invalid on that ground. the extended that ground transgressed, 1 It lists. the Central and As to the competency of the Dominion Legislature may Pe to pass an enactment of this character, India Act, pointed out that under the Government of there was distribution of powers legislative 1935, the Provincial Legislatures between and all the different subjects of legislation were enum erated is obviously legislative necessary that a law passed by the legislature should relate to one or more of the legislative topics which are It is true that on the face of it a specified in the list. legislation of this kind does not· seem to be covered by list. any particular item or items enumerated in the But there would be no impropriety in saying that relates respect the various subject-matters which there are laws in force in other provinces the right to extend · which has been conferred upon Central Government by this Act. Tlie subject-matter of all these legislations must necessarily be comprised within one or other of the legislative items and if they are not, and a particular legislation is invalid on that ground, is extended under section 2 of the Ajmer-Merwara Act would not In my opinion, section 2 of the Ajmer make it valid. Merwara Act is not ultra vires by reason of its trans gressing the limits of permissible delegation. that such legislation 1951 In re · The Delhi laws Act, 1912, etr. Mukherjea I. r 1008 SUPREME COURT REPORTS [1951] thinks proper, the Parliament the Constitution, is no distribution of to these Part C States and The third and the last item for consideration is sec tion 2 of the Part C States (Laws) Act, 1950. The Part C States comprise some of the old Indian States and also some of the Chief Commissioners' Provinces. these States Under article 239 of are to be administered by the President acting, to such through a Chief Com extent as he through missioner or a Lieutenant. Governor or Government of a neighbouring Power State. legislature, a to create a Council of Ministers and High Court for such a State('). There the entire regard residuary power under lative powers (including the article 248 of the Part C States (Laws) Parliament. Section 2 of Act, extend, by notification in the official gazette, to any Part C State excluding Coorg and the Andaman and Nicobar Islands or to any part of such State with such it thinks fit any en restrictions and modifications as actment which is in force in a Part A State at the date of the notification. The section further lays down that "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 Sta.te." the Constitution) are vested the Central Government legislative powers 1950, authorises the other It will be noticed that the powers conferred by this section upon the Central Government are far in excess of those conferred by legislative pro interpretation visions, at least in accordance with which I have attempted to put upon them. As has been stated already, is quite an intelli!Pble policy that so long as a proper legislative machinery is not set up in a particular area, the Parliament might em power ari executive authority to introduce laws, validly passed by a competent to such area, with force in other parts of the country the authority such modifications and thinks proper, the modifications being limited legislature and actually restrictions as (1) Vide articles 240 and 241. 19S1 The Delhi L11w1 Act, 1912, etc. Mukherjea J. • S.C.R. SUPREME COURT REPORTS 1()()<) itself. If the essential is given legislature the entire laws either existing legislative legislative power, repeal or abrogate adjustments 'or changes of a minor character. But this pre-supposes that there is no existing law on that particular subject actually in force territory. If any such law exists and power is given to repeal or abrogate such in whole or in part and laws which are substitute in place of the same, other in force in other areas, it would certainly amount powers. an unwarrantable delegation of To exercise of the policy behind such acts must be the policy of the legislature invests the execu tive with the power to determine ·as to which of the territory are useful or laws in force in a particular proper and that authority them by laws brought from other replace any of thinks, provinces with such modifications proper, that would be to invest the executive with the determination of legislative policy and not merely of carrying out a policy which the legislature ha< already laid down. Thus . the power of extension, is contemplated by section 2 of Part C States the power of introducing laws (Laws) Act, which may be validly established and already practice, which territory. This was adopted during the early British period as expedient and possibly harmless measure with object of providing laws for a newly acquired territory or backward area till it grew up into a full-fledged is being resorted to administrative and political unit, in later times for no other purpose than that of vesting almost unrestricted legislative powers with executive government. The certain 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 legislative duties and an unwarrantable delegation of cannot he permitted. The last portion of section 2 of Part C States (Laws) Act )s, therefore, ultra vires the in operation conflict with in actual includes regard 1010 SUPREME COURT REPORTS [1951] 1951 Jn re The Delhi Laws Act, 1912, etc. Mukherjea J. the Parliament as being a delegation of p<;>wers of essential legislative powers in favour of a body not competent to exercise it and to that extent the legisla tiol) must be held to be void. This portion is however severable; and so the entire section need not be declar ed invalid. The result is that, in my opinion, the answer to the three questiO!!S referred to us would be as follows :- ( 1) Section 7 of the Delhi Laws Act, 1912. is in its entirety intra vires the legislature which passed it and no portion of it is invalid. (2) The Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions are not ultra vires 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 they are extended. The power given by the last portion of the section to make provisions in any extended enactment for the repeal or amend ment of any corresponding provincial law, which the time being applicable to that Part C State, therefore, illegal and ultra vires. to which ( DAs J.-The answers the questions referred the President under article 143 of our this Court by scope and ambit of Constitution depend upon the power of Indian Legislature during ihe three periods to which the questions relate. the fundamental principles A correct appreciation of of the British Constitution and those that owe origin to the British Parliament and of our present Constitution is a pre-requisite for such purpose. legislation of It is common knowledge that in the British Consti- tution the King in Parliament is the sovereign power in the State. considerable struggle that the concentration of power in the King, which was a feature of the British Constitution of by-gone days, Ii was after ~ S.C.R. SUPREME COURT REPORTS 1011 - ceased and established. As eignty Dicey Edition, at page 68 says : the supremacy of Parliament was fully the nature of parliamentary sover the Constitution, 9th in his Law of 1951 In re The Delhi Law1 Act, 1912, etc. "Parliamentary undoubted legal fact. sovereignty is, therefore, Das J. It is complete both on its positive and on its negative side. Parliament can legally legislate on is a whatever which, in the judgment of Parliament, fit subject for legislation. There is no power which into rivalry under the English Constitution, can come with the legislative sovereignty of Parliament." In Chapter II, Dicey points out the characteristics of Parliamentary sovereignty. There is no law which Parliament cannot change. There is, under the English Constitution, no distinction between fundamental or constitutional laws and ordinary laws. There does not exist any person or body or persons which can pro nounce void any enactment passed by the British the ground that it is opposed to the Parliament on constitution or on any other ground. He refers to the the British Constitution every part of flexibility of which may .abolished with equal ease. curtailed, amended expanded, To the same effect are the observations of Sir Cecil Carr in his lectures concermng English Administrative Law, page 15: "In Britain the King is all-power in Parliament ful. There is no Act which cannot be passed and will not be valid within the ordinary limits of judicial interpreration ................ and there is no Act of the "British Parliament which cannot be repealed like any other Act ............ Even Magna Carta is not inviolate ............ though many Englishmen suppose it cannot that if any statute be made to the contrary of Magna Carta, it is void. Actually, about two-thirds of it has been repealed already.'' touched. Coke, you remember, . said 1012 SUPREME COURT REPORTS (1951] 1951 Iii re The Delhi laws Act, 1912, etc. Das J. from delegating Parliament being supreme and its power to legis late being unlimited, there is nothing to prevent Parlia executive officers or other subordinate bodies. Sir Cecil Carr Report of the Committee on Ministers' Powers, usually referred to as the Donoughmore Committee, said : in his "Delegated Legislation" quoted legislative power - the smallest part "The first and by far is made by the Crown under what survives of the prerogative. The second and weightiest part is made by the King in Parliament and consists of what we call Acts of third and bulkiest part is made by Parliame11t. The the King in Parliament such persons or bodies as entrusts with legislative power." The power of delegation is a necessary incident to the practical legislative power and the exercise of reasons for· such delegation have been stated to be :- ( " (a) Parliaments' lack of time to shape all legisla tive details: (b) lack of technical knowledge and aptitude of a miscellaneous assembly such as Parliament: (c) the occurrence of conditions which require immediate attention at a time when Parliament is not in session or is otherwise incapable of giving immediate attention; (d) a desire to preserve the essential elasticity of laws affecting peoples' lives so closely.'' (See Carr on English Administrative· Law, page 23 and also Kennedy on the Constitution of Canada, 2nd Edition, page 461). to delegate As observed bv Sir Cecil Carr, "the truth is that if law-making the kind legislation which modern public In England, the practice of dele facilitated legislative and executive the cabinet Parliament were not willing power, Parliament would be unable to pass and quantity of opinion requires." gating legislative power has certainly been system of government in England. resulting from the development of the close fusion of the 19Sl. In re The Delhi Laws Act, 1912, etc. Das I. S.C.R. SUPREME COURT REPORTS 1013 two- classes, distinguishable (ii) exceptional. The . normal Delegated legislation has been divided in the Don (i) oughmore Committee's Report normal and characteristics, the other. negative. In the normal one positive and type of delegation the "positive characteristic the limits of the delegated power are defined . so clearly by the enabling Act as to be ·made plainly known to to the pu"blic and to Parliament, to the executive and be readily enforceable by the judiciary." The negative stated characteristic not to include the power to . do certain things. The type of delegation has been c1assified exceptional the Donoughmore Committee under four heads, namely- that the powers delegated are (i) power to legislate on matters of principle and even to impose taxation; (ii) power to amend Acts of Parliament, either the · Act by which the powers are delegated or other Acts (nicknamed as Henry VIII clause); (iii) power conferring so wide a discretion on a Minister, that it is almost impossible to know what limit Parliament did intend to impose; (iv) instances where Parliament, without formally abandoning its normal pr:\ctice of limiting delegated powers, has in effect done so by forbidding control of the Courts. the British legislative powers in Canada more or Kennedy in his book on the Constitution of Canada, instances of 2nd Edition, page 463, also gives ·the delegated lines. The above heads clearly show the same the power of delegation exerc; ised the wide sweep of The Donoughmore Parliament. Committee has nowhere questioned the strict legality legislation. The Committee has not even said that the excep~ional legislation should be done away types of delegated with altogether. All that it has recommended is that the most pronounced kinds of them should be aban doned in all but the most exceptional cases and except types of delegated these exceptional '· -~· 1951 The Delhi La1t18 Act, 1912, etc. Dasi. 1014 SUPREME COURT REPORTS [1951] exercise of reporting on every upon special grounds to be stated in the Ministerial memorandum attached to the bill. A Select Committee on Statutory Instruments has since been appointed in England for considering and reporting on every bill proposing to delegate law-making power and for con sidering and rule made England, while the power of Parliament to legislate is unlimited and consequently the power of delegation is also without limits, the Parliament, through the Select Committee above referred to, is keeping a watchful eye on the activities of the persons or bodies to whom the power of legislation is delegated so as to preserve control over such delegated legislation. The charac tx:ristic principles of the British Constitution referred to above have not been disputed before us. the power. Thus, regulation Turning now to the American Constitution we find a different principle American Constitution were imbued with the political theories propagated by John Locke and Montesquieu. Said John Locke, in his Civil Government, article 141 : in operation. The framers of +;'- { "The legislature cannot the power of making laws to any other -hands : for it being but a delegated power from they who have it cannot pass it over to others." the people, transfer transfer According to Locke "the legislature neither must, nor can, the power of making laws to any body else, or place it anywhere but where the people (Civil Government, Article 142). Montesquieu have." in his Esprit Des Lois developed this doctrine of separation of powers. While after 1688 England defi nitely departed from the tjgid doctrine of separation of powers and has never come back to it, the framers the doctrine the American Constitution adopted .in its full force because, as explained by Professor Willis at page 168, "the fathers undoubtedly were so afraid intended the powers of to establish a separation of government in order to prevent the exercise of all ·powers of government by any single branch of govern-· rnent." expressly forty State Constitutions of despotism tyranny Indeed, S.C.R. SUPREME COURT REPORTS 1015 provided for the separation of powers and it was only the remaining eight State Constitutions Federal Constitution did not expressly create a sepa ration of governmental powers, although they "vested" three departments of the powers separately government. Reference may be made to the following provisions. of the Federal Constitution: that, 19Sl In re The Delh I Law1 Act, 1912. etc. Dasi. ., Art. 1, section 1. All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives. Art. 2, section 1. The executive power shall be vested in a President of the Uruted States of America. Art. 3, section 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time time, ordain and establish. In view of this separate enumeration of the three powers and the vesting of each in separate bodies, the , in Springer v. Govern United States Supreme Court ment of Philippine lslands(1) said that the separation of power "is implicit in all, as a· conclusion logically the several depart following from the separation of ments." The correct position, as stated by Professor Willis at p. 134, is "that the doctrine of the separa tion of governmental powers in an American doctrine the United States Con and an implied doctrine of stitution, and of those State Constitutions which do not expressly set it forth." another the delegation of power. Alongside this doctrine of separation of powers the doctrine law had American constitutional which also negatived In Sutherland's Statutory Construction, 3rd Edn., Vol. 1, the separation-Of p. 56, we legislative powers doctrine was power could not be exercised by any agency of the government save legislature." The application of this corollary is thus explained by Willis at p. 137 :- legislative powers, if there is such a rule, is broader than any the corollary the delegation of that "incident ruJt: against "The (!) (1927) 277 U.S. 189 ; 72 L. Ed. 845. 1016 SUPREME COURT REPORTS [1951} 1951 Tiu Dellll LiltN Act, 1912,, etc. Dasi. doctrine of separation of powers. That part of it which the ddegation of powers to other branches of forbids the government comes within the doctrine of separation of powers. That part of it which forbids the delega tion of powers to independent boards or commissions rests upon the maxim delegata potestas non potest dele gare." the other in practice, the powers of the main made The doctrine of separation of powers is founded on the incapacity, of one government department to receive two, while or exercise the maxim delegata potestas non potest delegare incapacity of any of based on the govern ment departments to pass on to other non-governmental bodies the powers expressly confided to its care and the delegation of power is charge. As, generally and the executive the doctrine of separation of powers has, in officers, the American constitutional Jaw, been kept through out in the forefront and has been regarded as the prin cipal rule, whereas the maxim delegata potestas non potest delegare has; in its application in the field of constitutional law, been relegated to a somewhat subor dinate role. Both these doctrines, however, are regard to a certain extent, founded on a theory of ed as, trust. The argument is that the people of the United States have, by governmen ta! tbree grand departments" of the State and specifically confided the legislative power to Congress, the executive power to the President and the judicial power l'O the Supreme Court and other courts, and therefore, in view of such separation of power each department of the State must alone perform and carry out its duties so specifically this solemn entrusted to them respectively and through be discharged obligation cannot any other person or agency. This or agency has not, as we have seen, been adopted law and practice. The Briti!h people do confide the utmost trust Parliament, even to the extent of making it a supreme and sovereign authority, fact has never their Constitution, distributed the British constitutional functions amongst "the by or theory of - S.C.R. SUPREME COURT REPORTS 1017 exercising the widest prevented Parliament power of delegation. As Dixon J. points out in his article "The Law and the Constitution" published in 1935 in 51 Law Quarterly Review at p. 590, doctrine of separation of powers is a departure from anrl, indeed, a violation of the British constitutional practice and theory. 1951 111 re TlreDelhi Lizw1Ael,1912, etc. Dail. The American doctrines, pushed ·conclusion, must necessarily prevent any .delegation of power. Cushman Regulatory Commissions", p. 427, said : logical in his "Independent "If the legislative power is vested in the Congress that that power cannot be it logically follows framed out to anybody else." The following passage from the judgment in Locke's this view with particular Appea/(1) also illustrates reference to the maxim of non delegation : "That a power conferred upon an agent because ·of his fitness and the confidence reposed in him cannot · be delegated by him to another is a general and admit ted rule. Legislatures stand in this relation people whom they represent. Hence, it is a cardinal principle legislature cannot delegate the power to maICe laws to .any other body or authority." representative government The theory against delegation of legislative powers was epitomised by Judge Cooley in his "Constitutional Limitations." At p. 224 of Vol. Ill of the 8th Edn. of the following oft-quoted passage occurs :- his work "One of the settled maxims in constitutional law legislature ·to that the power conferred upon the. make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been instrusted cannot relieve itself of the responsibility by choosing (I) (1873) 72 Pa. 491. " 1951 In re The Delhi Law• '4ct, 1912, etc. Das J. 1018 SUPREME COURT REPORTS [1951] other agencies upon which the power shall be devolved, nor can judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." it substitute We have now to see how far the American judges jurists have been able to preserve the pristine purity of these doctrines. After quoting tlie above passage Willoughby in his the United States", 2nd Ed. "Constitutional Law of Vol. III, Art. 1075, at p. 1636 adds: ( "The principle as thus absolutely stated is subject to several qualifica to one important exception, and tions, or at least explanations." The learned Professor proceeds in the next Article : "The exception is with reference to the delegation of powers to local governments. The courts have held as to this, the giving by the Central legislative body of to local extensive law-making powers with reference matters the adoption of the Anglo-Saxon practice antedating Constitution, and the right of local self government being so fundamental to our system of politics, our constitutions are, in the absence of any 6cpress prohi bitions to the contrary, to be construed as permitting it". to subordinate governing bodies being It should be noted that in the above passage Wil loughby recognises this delegation of power to bodies as "the giving by the Central legislative body of extensive law-making powers with reference to local matters". This inroad on the absolute doctrine of separation of powers or the maxim of non delegation. This, however limit of such the pressure of necessity of practical inroad, government has compelled the American judges and It will now be jurists to yield further concessions. to refer to some of the American decisions. necessary is clearly an is not Professor Corwin in his book entitled "The Pre sident; Office and Powers", 3rd Ed., Chapter IV, p. 151 refers to the case of Brig Auroro v. U. S.(1) (I) (1812) 7 Cr. 382. 1951 In re The Delhi IAws Act, 1912, etc. Das J. S.C.R. SUPREME COURT REPORTS 1019 import the earliest case bearing upon the relation of the legislative power of Congress to national executive powers. That case was concerned with the Non-inter it unlaw course Acts of 1909-1910. Section 4 made from any port Great Britain or France. Section ll authorised President, in case either France or great Britain revoked her edicts violating the neutral commerce of the United States, to declare the same by Proclamation and provided that after such Proclamation trade might renewed with the nation so doing. There was also provision for the revival of the operation of the Act The President on Proclamation by issued his Proclamation declaring that Great Britain had revoked her edicts against the United States and consequently to operate against her. Subsequently, Proclamation. Aurora had sailed with a cargo from the Proclamation Liverpool before the revocation of to the Congress could not President. To make the revival of a law depend upon the. President's Proclamation was that Procla mation the force of law. This argument was repelled by Johnson J. who delivered the opinion of the Court following words :- the cargo was seized. The argument was Justice Marshall with legislative power the Act ceased included Chief the President. the President however, revoked transfer to give the legislature should "On reason why discretion reviving either expressly or conditionally, as should direct." the second point, we can see no sufficient the Act of March 1st, 1807. iudgment not exercise The Practical difficulties in a literal application of the maxim against delegation were seen at an early time by John Marshall C. J. in Wayman v. Southard(1). The question in that case was whether, by the Consti tution of the United States, power to regulate the proceedings of the Federal Courts. the Congress had (l) (1825) 16 Wheaton I; 6 L. Ed. 253. 19-3 S.C. India/68 1951 TAe Delh "''".Act, 1!112, etc. · Du J, 1020 SUPREME COURT REPORTS (1951] The Process Act adopted the system as it then stood "subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, .deem expedient, or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule to prescribe to any circuit or district court concerning the same." Counsel for "if extended defendants contended beyond the mere regulation of practice in the court, would be a delegation of legislative authority which Congress could never be supposed to int.end and had not the power to make." This objection was disposed of by Marshall C. J. in the following words :- this clause, "It will not be that Congress can contended delegate to the courts, or to any other tribunals, powers which are legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself." strictly and exclusively Further down the learned Chief Justice proceeded : line has not been exactly drawn which "The important subjects which must be separates entirely ·regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who arc to· act under such general provisions the details. To to the determine courts by the Process Act, we must enquire into its extent." the character of the power given to fill up ( It will be observed that the learned Chief Justice avoided the rigours of the doctrine by making a dis tinction between powers which were "strictly and ex clusively legislative" and other powers which he desig nated as only power "to fill up the details". This practice of paying homage to the doctrine of separation of powers and at the same time making inroads upon the doctrine to the urgent necessity of practical for giving effect government :uid the use of expressions qualifying legislative power will be apparent in the subsequent decisions of the American Coutts. 19Sl In re 'Ifie Delhi !aw1 kt,1912, etc. Da1I. • ., S.C.R. SUPREME COURT REPORTS 1021 relating The case Fieltl v. Clark(1) was concpned with the validity of the third section of the Tariff Act, 1890. The objection was that the impugned section tranfer red the legislative treaty-making power to . the Presid· the provisions of ent and authorised him to suspend introduction of sugar, the Act molasses, coffee, tea and hides. At p. 310 of Lawyers' Edition, after reiterating that .the doctrine that Congress could not delegate legislative power the President was a principle universally recognised as vital to the integrity and maintenance of the system of government ordained by the constitution, Harlan J. said:- the free that the suspension should "Legislative power was exercised when Congress declared take effect upon the President was a named contingency. What to do was simply in execution of the Act of required the Congress. It was not the making of law. He was the mere agent of ascertain and declare the event upon which its expressed will was to take effect. It was a part of the law itself as it left the hands of Congres that the provisions, full and complete in themselves" permitting the free introduction of sugar, molasses, coff ec, tea and hides, in a from particUlar countries should be suspended, given contingency, and that in case of such suspension certain duties should be imposed." law-making department The learned Judge then quoted the following well known passage from the judgment of Judge Ranney of the Supreme Court of Ohio in Cincinnati W. & Z. R. Co. v. Clinton County Commissioners(2) :- · "The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exer cised under and in pursuance of law. The first cannot be done; to the' latter no valid objection can be made." (1) (1891) 143 U.S. 649; 36L Ed. 294. (2) Ohio St. 88. 1951 ln·re TheDe/hl Law• Act, 1912, etc. Das 11 1022 SUPREME COURT REPORTS (1951} Then Appeal(') :- ' learned Judge quoted from Locke'1 legislature · of ''To assert that law is less than a law, because is made to depend on a future event or act, is to rob public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to be fully known." to act wisely for the power Again: legislature its power cannot delegate law; but it can make a "The make a to delegate a power to determine some fact or. state of things upon which the law makes, or its own action depend~ To deny this would be to stop the wheels things upon which of government. There are many wise and useful legislation must depend which cannot be known to the law-making power, and, must, there fore, be a subject of inquiry and determination outside the halls of legislation". to make, intends · The validity of section 3 was upheld on the basis that it did not really delegate any legislative power and, therefore, did not offend the doctrine of separation of powers but was only an instance of conditional legis It will be seen hereafter that on strict analysis lation. a conditional legislation does involve a delegation of legislative power, however small it may be. Buttfield v. Stranahan( 2 ) was concerned with an Act which authorised the Secretary of the Treasury to fix "uniform standards of purity, quality and fitness for consumption of all teas" to be imported into the United States. Delivering the judgment of the Court, White J. observed at p. 494 :- "The Congress legislated on the subject as far as the necessities of was reasonably practicable, and from to executive officials the case was compelled to leave the duty of bringing about the result pointed out by the statute. To deny the power of Congress to dele gate such a duty would, in effect, amount to declaring (1) 72 Pa. 491. (2) (1904) 192 u. s. 471. { - S.C.R. SUPREME COURT REPORTS 1023 that the plenary power vested "in Congress to regulate foreign commerce could not be efficaciously exercised." This passage amounts to saying that "in short Con gress may delegate its powers when it is necessary to do so in order to achieve the results which it desires." (Corwin, President, p. 153). 19Sl The Delhi Law1 A.ct, 1912, etc. DOI I. Webb-Kenyon Act of 1913 came up for discussion in Clark Distilling Company v. West Maryland Railway Co.(1). The Act prohibited shipment oi transportation of any intoxicating liquor from one State to another in violation of any law of such State. One of the arguments raised was that by the Webb-Kenyon Act the Congress unconstitutionally delegated the States. This was disposed of by White C.J. at p. 338 of Lawyers' Edition as follows :- legislative power It is true the "The argument as to delegation to the States rests legislation upon a mere misconception. the Webb-Kenyon Act contains permits State liquor from to movements of prohibitions one State into another, but the will which causes the that of Congress, since prohibition the application of State prohibitions would cease the instant the Act of Congress ceased to apply." to be applicable to apply to which The above passage echoes the observations of the Privy Council in Hodge v. The Queen(2) and other reference will be made hereafter. Referring to the maxim against delegation Professor Corwin said that in this case "the Court seemed to be on the verge of ·chucking the maxim entirely." ) the President In /. W. Hampton fr. & Co. v. U.S.( 3 · the ques tion was whether the Tariff Act in so far as it autho issue a proclamation fixing a tariff rate was invalid for unconstitutional delegation of legislative power to the President. After referring to the division of the governmental power into three the well-known maxim of branches and ref erring non-delegation Taft C. J. at page 629 observed :- (!) (1917)242U.S.3111 (2) (1883) L.R. 9 App. Cal. 117. (3) (1927) 276 U. S. 394; 72 11 Ed. 624. 1951 In re The Deihl "°"'kt, 1912, etc. Dai I. 1024 SUPREME COURT REPORTS [1951] "The field of Congress involves all and many varieties of legislative action and Congress has found it frequently necessary to use officers of the executive branch within defined limits, to secure the exact effect intended by legislation, by vest!ing discre to make public regulations inter tion in such officers preting a statute and directing execution, even to the extent of providing for penalis ing a breach of such regulations." the details of its acts of The reasons these exceptions for permitting the rule are stated by the learned Chief Justice page 630 :- "If Congress were to be required to fix every rate, it would be impossible to exercise the power at all. Therefore, commonsense requires that in the fixing of such rates Congress may provide a commission, as it the Interstate Commerce Commission to does, called fix those rates, after hearing evidence and argument concerning them from interested parties, all in accord with a general rule that Congress first lays down that rates shall be service given and not discriminatory." reasonable considering just and The following quotation is made from the judgment of Day J. in an earlier decision of the Court in lnter State Commerce Commission v. Goodrich Transit Company('). "The Congress may not delegate its purely legis lative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigations of facts, with a view to making orders the rules laid down by the Congress." in a particular matter witliin In U.S. v. Shreveport Grain and Elevator Co.(') the having misbranded the Food and Drugs Act. of 1906. The respondent was indicted certain sacks containing corn meal contrary provisions of 1· (I) 224 U.S.194 atp.214; 56 L. Ed. 729atp. 737. (2) (1932) 287 U.S. 77; 77 L. Ed. 175. · S.C.R. SUPREME COURT REPORTS 1025 respondent moved for quashing the indictment on the ground, inter alia, that the Act was unconstitutional for delegation of power contrary to the provisions of Articles 1, 2 and 3 of the Federal Constitution. Sutherland J. said:- 19S1 In re The Delhi Laws Act, 1912, etc. Dasi. ' \ "That the legislative power of Congress cannot be delegated is, of course, clear. But Congress may declare its will, and after fixing a primary standard, devolve upon administrative officers of the "power to fill up the details" by prescribing administrative rules and regulations .......... The effect of the provision assailed is to define an offence, but with directions to those charged with the administration of the Act to regulations allowing rules and reasonable which, because of statement, prescribe." their variety and need of detail impracticable for Congress supplementary variations, tolerances it was exemptions · legislative power" or "essential , to "strictly and exclusively It is thus clear that the doctrine of non-delegation has been constantly shrinking in content until it came to be confined legislative powers" or "purely function." But there was a swinging back legislative of the pendulum in 1934 in the Panama Refining Co. v. Ryan(1) in which the National Industrial Recovery the administration of Act of 1933 passed during the ground of President Roosevelt was assailed on provision unconstitutionality. After and effect of section 9(c) and section 1, Chief Justice Hughes concluded :- analysing is not permitted "The Congress manifestly abdicate, or to transfer to others, the essential legisla thus vested. Undoubt tive functions with which it is edly, legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The con ~titution has never been regarded as denying to the Congress flexibility and practicality, which will enable it to perform its func tion in laying down policies ·and establishing standards, the necessary resources of (I) (11134) 293 U.S. 388; 79 L Ed. 446. 1951 In rt The Delhi Low• A.ct, 1912, etc. Dasi. 1026 SUPREME COURT REPORTS [1951} legislature while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the to which the policy as declared deterinination of facts to apply. Without capacity give authorisations of that sort we should have the anomally of a legislative power which in many circum its exertion would be but a futility. stances calling for the necessity and recognition of the constant But validity of such provisions, and the wide range of administrative authority which has been developed to obscure the by means of them, cannot be allowed if our con limitations of stitutional system is to be maintained." the authority to delegate, The majority of the Court held, in spite of the defi nite and express language of sections 1 and 9 ( c) that they had not laid down any policy or set up any standard and, the delegation permitted by section 9 ( c) was unconstitutional. Cardozo J. in a dis the Act had sufficiently senting judgment held that the discretion delegated was declared a policy and "not unconfined and vagrant" but was "canalised within banks that keep it from overflowing." therefore, The case of Schechter v. U. S. (') is on the same lines and it carries the matter no further. The two last mentioned cases, however, did not deter Congress from passing other Acts, e.g., Agricul tural Marketing Act, 1937, giving equally extensive powers to the executive including the power prices. These later Acts have not been challenged unconstitutional. Referring two cases Pro fessor Corwin says :- "Neither of these precedents materially influenced congressional policy even at the time, and both have been subsequently relegated by the Court to its increas ingly crowded cabinet of juridical curiosities." The later cases of Opp Cotton Mills v. Administra indicate the possibility in tor(a) and Y akus v. U. S.(8) (1)(1934)29SU.S. 496; 79L.Ed. IS70. (2) (1940) 312 U.S.126; SSL. Ed. 624. (3) 321 U.S. 414 ; 88 L. Ed. 834 . • , 1 S.C.R. SUPREME COURT REPORTS 1027 the near future of another swing of the pendulum. In the former, Stone J. conceded at page 145 that although fact finding often was a step in the legislative process it could nevertheless be administrative officers or boards whose aid could be resorted to by Congress. the Congress left by 19S1 The Delhi Lawa..4.ct, 1912, etc. Dll8J. Holmes J. in his dissenting judgment in Springer v. The Government of Philippine lslands(1) said:- "It is said that the powers of Congress cannot be Inter delegated, yet the Congress has established legislative, state Commerce Commission, which does judicial and ~xecutive acts, only softened by a quasi " The learned Judge then concluded :- "It does not seem to need argument to show that however we may. disguise it by veiling words we do not and cannot carry out the distinction between legis lative and executive action with mathematical preci sion and divide the branches into water-tight compart ments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires." The following observations of Sir Cecil Carr in his concerning English Administrative Law, , book page 15 clearly bring out the bewilderment of a non American student at the way the doctrine of separa tion of powers has been treated in American Constitu tional law :- \ "A visitor incorporated to the United States is frankly afraid of discussing the value of that doctrine. He has found it emphatically, the constitutions of indirectly asserted in the various states; he insistence upon Federal Constitution. An absolute judicial power must, he feels rule out any delegatien of legis lative power to the executive. He finds definite opinions like that of Mr. Justice Harlan that "that Congress cannot delegate legislative power to the President is a principle universally recognised as vital to the integrity legislative, executive, and separation of (I) (1927) 277 U.S.189; 72 L. Ed. 84S. 1951 Inn T1" Delhi Laws Jlct, 1912, etc. DasJ. 1028 SUPREME COURT REPORTS [19511 it is convenient to do oo.' and maintenance of the system of Government ordained by the Constitution." Yet he is told that from earliest years of the United States some such delega tion occurred. He reads that 'it used to be said that "Congress may not delegate its powers" but the now-a-days has become that Congress may not delegate (E. S. its powers unless Corwin, The Constitution and what it means to-day·) High authority tells him that the Supreme Court of the United States has not treated the separation oi powers as a technical legal doctrine, that the doctrine was not into water-tight com intended to divide the branches partments, and that your country has achieved the con trol of navigation, the regulation of rail road rates, the administration of the Pure Food and Drugs Act, allocation of wave lengths and so forth by refusing to be the slave of a sterile dogma. (Frankfurter : The Public and its Government, page 76). He is given to under stand that it was not till 1935 in the Panama Refining Co. invalid because it failed to separate the powers." that an Act was declared v. Ryan(') Schwartz in his American Constitutional Law con cludes at page 20 :- "But there were few who, like the great Chief Jus tice, could openly admit that the constitutional maxim was not inflexible. The resulting judicial dilemma, when the American Courts finally were squarely confronted with delegation cases, was judicious choice of words to describe the delegated power. The authority transferred was in, Justice Holmes' felicitous phrase, the Courts were thus able to grant the fact of delegated legislation and still deny the same. 'softened by a quasi, and resolved by the This syllogism :- re:ult is well put in Professor Cushman's Major Premise : Legislative power cannot be con stitutionally delegated by Congtesi. MU.Or Prmiise : It is essential that certain powers rc:gui:Uocy be delegated to administrative ofliccr& and commission.>.. l) (1934) 293 U.S. 388 ; 79 I.. Ee!. 446. / T 1951 In re The Delhi lAw1 Act, 1912, etc. DOii. S.C.R. SUPREME COURT REPPORTS 1029 Conclusion: Therefore the powers thus de\cgated are not legislative powers. They are kgislative powers. instead "administrative" "quasi In spite of the maxim against delegation, then, the to confer very the executive. The extent of that Elihu legislative power has American Legislature has been able great authority upon delegation had, Root could conclude in 1916 that, because of prohibiting virtually fight." the administrative process, "the old doctrine indeed, become so great field and given up the delegation of retired According to Professor Willis, at page 135 :- "It is, therefore, an . open question whether or not we now have this doctrine at all under the United State Constitutional Law." Again, at page 136, we find the following passage : "It is a dogma (in harmony with our definition) that legislative power cannot be delegated either to the other branches of to independent the government or the people; boards or commissions, or even back but the rule of the dogma has so many exceptions that it is difficult to decide whether the dogma or the excep tions state the rule." The exceptions are summarised by Professor Willis at pp; 137-138 :- (a) ''The rule does not forbid delegation of powers of local self-government : (b) The legislature · may delegate determine the conditions or contingencies under which a statute shall be operative; the power ( c) The legislature may delegate to boards of health, the heads of the power matte regulations, as departments : ( d) Legislature may delegate the power to. ascer tain facts and to apply rules of law in controversies, i.e, to administer standards, as Industrial 'department, commerce the case of department, 1951 t'he Delhi Law1 Act, 1912, etc. Das J, 1030 SUPREME COURT REPORTS [19511 Commissions, public utility commissions, sions, and even in case of the President, with the flexible provisions of the alien property." tax commis in connection tariff and the sale of After referring to these exceptions, Professor Willis concludes at page 141 :- "Yet when all of these exceptions to the rule against the delegation of legislative power are observed, one cannot help wondering whether the rule is not honoured the observance, and whether or not, so far as this matter is concerned, we have a doctrine of separation of powers." the breach ' ' To sum up : it quite clear the framers of the cases and text books referred to above make American Constitution were so afraid of tyranny of des potic power that they adopted the political theories of Locke and Montesquieu in their Constitution and pro vided for separation of powers. The American Courts the separation interpreting the Constitution held of powers which was expressly adopted in most of the Federal State Constitutions was also implicit in Constitution. Logically, the doctrine would not permit any delegation at all. They, however, soon realised that the necessities of practical government required delegation of legislative powers the President or other persons or bodies but such was the fear in the minds of the American people of the tyranny that may in despotic the concentration of power result from jurists judges and the American bound to uphold, in theory, the sanctity of the doctrine against delegation while, in practice, to permit large delegafions of legislative powers on the pretence that legislative power. the power delegated was not really Thus the doctrine against delegation came to be con fined to "strictly and exclusively" (per Marshall C.J.) "purely" (pcr Hughes C. J.) content of the legislative power were permitted to be delegated under the pretence that they were not really legislative power but were only power "to fill up the (per Day J.) or "essential" legislative power and the rest of 1951 In re The Deihl Laws Act, 1912, etc. Das J. S.C.R. SUPREME COURT REPORTS 1031 ascertain into executive power. legislature. By delegation to be delegated could be performed by itself and details" (per Marshall C. J.), or "to declare facts" (per Harlan J.), or were only "admi nistrative powers to make rules and regulations" (per LLamar J. and Hughes C.J.), or "minor matters" (per It cannot be denied that the functions so Lamar J.). permitted that when so performed such legislature performance would only be the exercise of legislative power. The functions which. when exercised by the legislature are legislative powers, cannot cease to be so when performed by the person to whom it is entrusted the legislative power by the It is cannot become transmuted due to the anxiety of the American Courts to reconcile the doctrine practical against delegation with necessities of government that they have had to take In point of fact, the recourse to such verbal subterfuge. content of the doctrine has been shrinking fast and although the American Judges and Jurists do not openly acknowledge it, Congress has been exercising the power of delegation of legislative power in an ever increasing measure. The truth is that whatever powers are dele gated by Congress are in reality parts of content of its legislative powers. In the picturesque language "President : Office & in his of Professor Corwin Powers", p. 154, in the ever present complexity of con to deal "the ditions with which governments have Lockian aphorism rearguard action." The protagonists of the separation of powers who contend that these exceptions do not constitute delegation of legislative power overlook the, fact that legislative power cannot the legislature having only delegate anything but what forms part of the legisla tive power. The power delegated by Congress, call it by what name you will, must necessarily be a part of its legisiative pvwer, for Congress has the content of nothing but legislative powers. The matter is put very tersely by Professor Corwin in his "President : Office and Powers", at p. 150 :- fought a losing "By the strict logic of the principle of the separa tion of powers, the only power which the legislature - l l9SJ 7716 D•fh L A.cl 1912, •le DaaJ. 1032 SUPREME COURT REPORTS [1951) possesses to delegate is legislative power; yet by is this power precisely which maxim just quoted legislature cannot delegate. Conversely, by principle of the separation of powers the executive should be incapable of recei,.ing or exercising anything but executive power, from which it must follow either that the executive can never receive any power from is aut<> the legislature or that when power passes into executive matically power. But is obviously con trary to fact, and the latter opens the way to delega tion by the legislature of all its power to the executive." the former alternative transmuted legislative ; t legislature itself must The net result is that even in the land of separa tion of powers all that now remains of the doctrine is lay down the simply that the (per Hughes C. J.) or fix a primary standard policy (per Sutherland J.). What will amount to sufficiently laying down policy or setting up a primary standard will, of course, vary with the length of the foot of the learned Judges who deliver the opinion of the Supreme Court of the United States. The elaborate formulation to be made by Congress in sec- of policy purported tion 1 of the National Industrial Recovery Act did not appear the American Supreme Court which decided the Panama Refining Co.'s case to be sufficient laying down of policy so as to be constitutional whereas, as will be seen hereinafter, the mere enumeration of the different subjects with ·the Governor-General was given power to make rules by the Canadian Parliament in the War Measures Act, 1914, and 'by the Australian Parliament in the National Security Act, 1939, for the defence and effectual prose- cution of laying down any specific policy with regard to any of those subjects, was accepted as perfectly constitutional the war, without to which respect I now pass on to the law-making power of the legis latures established by ,or under the authority of British Parliament. set out briefly instruments by the provisions of the which the important dominion legislatures were brought into existence. It will be tiseful at this stage S.C.R. SUPREME COURT REPORTS 1033 ... Canada. The relevant provisions of the British North America Act, 1867 (30 Vic. C 3) are as follows:- "Section 9. The executive government and autho rity of and over Canada is hereby declared to continue and to be vested in the Queen. 1951 The Delhi Ltlwa .ifct, 1912, etc. Dasi. Section 17. There shall be one Parliament for the Queen and Upper House Canada consisting of styled ''The Senate" and the "House of Commons." Section 96; The Governor-General shall appoint the Judges of the superior, district and county Courts in each province except those of the Courts of Probate in Nova Scotia and New Brunswick. Section 101. The Parliament of Canada may, not withstanding anything in this Act, from time to time, provide for the constitution, maintenance and organiz ation of a general Court of Appeal for Canada and for the establishment of any additional courts for better administration of the laws of Canada." Australia. The Commonwealth of Australia Consti tution Act, 1900 (63 & 64 Vic. C. 12) provides as follows:- Part I, Sec. 1. The legislative power of the Com monwealth shall be vested in a Federal Parliament which shall consist of the Queen, a Senate and a House of Representatives, and which is hereinafter called the Parliament or the Parliament of the Commonwealth. Ch. 2, Sec .. 61. The executive power of the Com is exercisable monwealth is vested the Queen and by the Governor-General as the Queen's representative and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth. Ch. 3, Sec. 71. The judicial power of the Common wealth shall be vested in a Fed~al Supreme Court, to be called ''The High Court of Australia. and in such other federal courts as the Parliament creates and in such other courts as diction." invests with federal India. The constitution of India has varied during the three relevant periods with which we are concerned reference. The provisions of the statutes or 1034 SUPREME COURT REPORTS [1951] I 5 In re The Delhi Lows Bet, 1912, etc. Da1J. other instruments governing the constitution of India will be set out in detail hereafter. Suffice it, for the present, to say that in India there was, at no time, separate vesting of power in the three departments as in America or in Australia. It will be noticed that under the British North the executive power is "vested" in America Act only the. Queen and that provisions are simply made for a Parliament and a Judiciary without expressly vesting the legislative and judicial powers in any person or body. As will be seen more fully hereafter, there was no strict separation of powers in the Indian Constitution at any time. On the other hand, the Commonwealth the American of Australia Constitution Act follows pattern and in terms causes the legislative, executive and judicial powers to be in the three depart- ments of the State. As will be presently seen, neither Canada nor Australia has accepted the principle of non-delegation of powers founded either on a doctrine of separation of powers or on any theory of agency except that in Australia the non-delegation of power is recognised only in its application to the Judiciary. In the Victorian Stevedoring and General Contract- ing Company v. Dignan(') to which detailed reference will be made hereafter Gavan Duffy C. J. referred to the passage doctrine of non-delegation of legislative power and proceeded at p. 83 as follows :- in Judge Cooley's work regarding 'vested' "A >swning, however, that the Act does impinge upon the doctrine, still such a restriction has never been implied in English law from the division of powers between the several departments of government." Dixon J. in his judgment in the same case referring to the maxim delegata potestas non potest delegare observed at pp. 94-95 it had no application to Australia and that no similar doctrine had existed in respect of British Colonial Legislatures whether erected in virtue of the prerogative or by the Imperial Statute. Evatt J. the view at the same case expressed p. 114:- (1) (1931) 46 C.L.R. 73. ,- l r ' S.C.R. SUPREME COURT REPORTS 1035 that, underlying "In dealing . with the doctrine of "separation" of legislative and executive powers, it must be remember frame of government, there is the notion of the British system of an Executive which to Parliament. That system in operation under the United States Constitution." the Commonwealth responsible is not 1951 · In re The Delh Laws Act, 1912, etc. Das I,., • In his Article "The Law and the Constitution" pub in 1935 in 51 Law Qu;uterly Review, p. 590, lished Mr. Justice Dixon, after referring the American doctrine of separation of powers, stated at p. 605 as follows:- respect the conceptions of E11glish "This artificial and almost impracticable classifi cation was opposed to British practice and theory. The follows frame of our constitution in this American plan. The notion that all law-making was confined to the legislature which, therefore, could not to complete its work was so authorise the executive that the foreign Australian Courts ignored, or were unaware of, the full consequences of the American plan we had adopted. In a series of decisions here, Commonwealth Parliament the exe recognised and cutive to legislate by regulation was logical diffi in effect, established, although thus, culty created by the frame of the constitution was no adverted to." the power of authorise language of The result, according to Dixon J., was that not the Australian Con withstanding stitution "legal symmetry gave way to commonsense." The very fact that a Dominion legislature was brought into being by the British Crown by a commission issued in exercise of its prerogative or by the British the legislature so Parliament under an Act prevented created from ·being a supreme sovereign legislature in the sense in which the British Parliament is supreme and sovereign for, of necessity, the scope and ambit of legislature's power was circumscribed the Dominion it could not go beyond it. But, nevertheless, the concept of a suprem~ 20-3 S.C. lodia/68 the Instrument creating it and 1951 In re The Delhi Laws Act, 1912, etc. DasJ. 1036 SUPREME COURT REPORTS [1951] the British people legislature was so vivid and deep-rooted in sovereign they imputed the minds of legislature, within its own even to such a subordinate field, all the attributes of the Imperial Parliament. In the words of Dicey in his Law of the Constitution, 9th Edn., at page 112, these legislatures "are, within own sphere, copies of the Imperial Parliament." I lay considerable importance the matter in numerous which, I find, had also been emphasised judicial decisions which' I now proceed to consider. this aspect· of With reference to the powers of the House of Assembly of New Found!and which was established by a commission issued by King William IV in exercise of his prerogative right "with the full power to make, laws, statutes and ordinances constitute and ordain for the public peace, welfare and good government of in · Kielly v. Carson(') observed:- Island .............. " Baron .Parke " .................. nor has it been disputed in the therefore we consider it as argument before us, and the right conceded, that the sovereign had not merely of appointing such magistrates and establishing corporations and Courts of Justice as he might do by the common law at home, but also that of creating a legislative assembly with authority subordinate, indeed, that of. Parliament, but supreme within the limits of inhabitants." the government of the colony for In Phillips v. Eyre( 2 ) in which the powers of the legis lature of Jamaica· to pass an Indemnity Act after the Rebellion of 1865 came into question, Willes J., after quoting the above passage from the judgment of Baron Park, observed at page 20 :- "We are satisfied that it is sound law, and that a legislature lawfully consti in a settled, or conquered colony, has, limits of jurisdiction, the operation and force of sovereign confirmed Act of tuted, whether as ro matters within its competence and the Cl> (1841)4 Moo. P.c. 84 (2) (1870) L.R. 6 Q.B. 1. / f ' S.C.R. SUPREME COURT REPORTS 1037 legislation, imperial Parliamept." though subject to be controlled by 1951 In re The De/ht Laws Act, 1912, etc. Das J. ' the Governor-General. section 2, ·'on such date as A good deal of argument has been founded on Burah's case(1).. The proceedings in that .case before the Hi~h Court are reported sub nom. The Empress v. Its was concerned with the validity of Act Burah( ). XXII of 1869 passed by Council, By operation the Lieutenant-Governor of Bengal shall, by notification in the Calcutta Gazette, direct." By section 4, the territories called Garo Hills jurisdiction of Courts and from control of the offices of revenue in the territories the Lieutenant-Governor of Bengal as well as from the law prescribed for the said Courts and offices. Sections 8 and 9 were as follows : the Act was to come removed time, by notification "Section 8. The said Lieutenant-Governor may the Calcutta G:izette, extended to the said territory any law or any portion of any law, now in force in the other terri tories .subject to his Government, or which may here after be enacted bv the Council of the Governor-General or of the said Lieutenant-Governor, for making laws and regulations, and may on making such extension direct by whom any powers or duties incident to the provisions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation. "Section 9. The said Lieutenant-Governor may time, by notification the Calcutta Gazette, extend mutatis mutandis all or .any of the provisions contained in the other sections of this Act the Naga Hills and to such por to the Jaintia Hills, tion of the Khasi Hills as for the time being forms part of British India. "Every such notilication shall specify the bounda ries of the territories to which it applies." On October 14, 1871, the Lieutenant-Gov.ernor, in exercise of the powers conferred on him by section 9, (!) (1878) SIA. 178. (2) (1877) I.L.R. 3 Cal. 63. 1951 In re The De/6 Laws Act, 1912. etc. Das J. 1038 SUPREME COURT REPORTS (1951) the counts. jurisdiction of the Governor-General the Governor-General remove the district from the to Khasi and Jaintia Hills and ex extended the Act cluded therefrom In 1876, Burah was convicted of murder and sentenced to death by the Deputy Commissioner of Khasi and Jaintia Hills. The death sentence was ·in April, 1876 commuted to transportation fur life. On July 9, 1876, Burah sent a petition of appeal from the jail to the Calcutta High Court. Two questions were raised in that case, namely, (i) whether the Governor-General jurisdic had power tion of the High Court, and (ii) if the Governor-General had such power, whether, by the Act, he could autho the Lieutenant-Governor by notification to extend the provisions of the Act to the Khasi and J aintia the first point the Full Bench held una Hills. On in Council had nimously the power to remove the district from the jurfsdiction of the High Court. On the second question the majo rity of the High Court (Markby, Kemp, Ainslie and Jackson JJ.) held that Act XXII of 1869 was invalid in Council had no power to functions delegate legislative the Lieutenant in the way it had done. Garth C. J. and Governor Macpherson and Pontifex JJ. took a different view. Markby judgment of J. delivered majority of the Court. He expressed the view that the Act did not evince "a final determination on the jurisdiction of the High part of the legislature that the Court should be taken away" from the Khasi and legislature, J aintia Hills. According to remove jurisdiction of the Courts, the Garo Hills, from only contemplated expedient Jaintia Hills l,eft an en tirely open question to be decided by the Lieutenant Governor of Bengal. He pointed out (pages 81-S3) the ,difference between the language of section 2 and that of section 9. At page 85, the learned Judge stated that the legislature did not decide that in Khasi and the ordinary courts Jaintia Hills the jurisdiction also but this to be expedient the Khasi and jurisdiction of the possibility it determined to him, remove leading ' ( { f 1951 The Deihl Laws Act, 1912, etc. Das I. S.C.R. SUPREME COURT REPORTS 1039 itself sovereign it did not express any opinion should be excluded and the decision of it to the absolute and uncon but left trolled discretion of the Lieutenant-Governor. Then his Lordship pointed out at page 86 the Indian Legislature was not but exercised sovereign powers by delegation only. After referring to the distinction between written and unwritten con Judge stitution and the duty of the Court, the learned dealt with the theory of agency and die delegation of legislative power by Parliament to Indian Legis the conclusion at page 98 that the lature and came legislative Indian Legislature could not change machinery without that machi various Acts of Parliament which created nery and that if it did in any way affect them ex conscnsu omnium its Acts were void. Of the dis sentienn Judges, that of Garth C.J. At page 139 learned Chief Justice observed:- the provisions of judgment was affecting leading is established by "No doubt, as soon as the fact is once established, that an Act of legislature which has been duly passed is within the scope of their powers, the court has no right to inquire into the propriety or wisdom of the law which that Act; but it is not every Act which the' Legislature may pass which can legally be considered as a law. Thus to bring the argument nearer home to our present purpose, suppose the legislature were to pass an Act, -transferring the whole of their legislative powers over the Indian Em in my opinion, would not be a law at all within the meaning of the statute. legislative powers the Governor-General directly at variance with meaning of same of a similar transfer of their powers with regard to any portion of the Indian Empire." It would simply be an abdication of the Councils Act; and I should say to the Governor-General. That, language and in favour of After ref erring to the the power of delegation, Garth C. J. at legislative pra~tice and necessity for p. 140 said :- 1951 In re The Deihl Laws A.ct, 1912, etc. Das!. 1040 SUPREME COURT REPORTS [1951J "Moreover, it must be borne in mind, that what legish ever important trusts are thus created by ture, they are by no means absolute or irrevocable. Her Majesty in Council can put a veto upon any Act of the Governor-General in Council which her advisers may not approve, and the Government here are always in a position to see how the powers which they have conferred are being exercised, and if they are exercised injudiciously, or otherwise in accordance with if, having been exercised, . the intentions, or result is in any degree inconvenient, they can always in- by another Act recall their powers, or rectify . " convemence. Then his Lordship referred to some of the Acts confer- ring upon, the Local Governments of Non-Regulation Provinces same kind of power, placing in their hands the right of abolishing, at their pleasure, old systems of procedure and of introducing a new system and some cases also giving power to alter or moqify Act in any way they . might think proper and so . to introduce a different law . into their respective provin- ces. The learned Chief Justice at p. 143 made following observations :- · ''Now all these Acts amount in one sense to a transfer of legislative power, "because in each of them the legislature entrusts to some· other person or body of persons the making of law and regulations which it might have made itself." The Crown took the matter on appeal to the Judicial Committee and the proceedings will be found reported sub n()m. The Quuil v. Burah(1 ). It was urged that the decision of the Privy Council in this case impliedly but quite clearly negatived the power of delegation of is, legislative authority by the Indian Legislature. therefore, necessary ' observations of the Privy Council. After stating the facts and disposing of some questions which are not material for our purpose, Lord Selborne, in delivering the Privy Council, referred at p. 192 It scrutinise to examine and judgment of (I) (1878) S I.A.178. ' • 4111 ' S.C.R. SUPREME COURT REPORTS 1041 to the ground of the majority decision that the 9th legislation but was a delegation 9f section was not legislative power and to the doctrine of agency relied upon by the majority. At p. 193 his Lordship refuted the alleged distinction made by. the majority between the Act of 1869, and section 2 and section 9 of observed:- 1951 ln re The Delhi Laws Act, 1912, etc. Dasi. "But their Lordships are of op1ruon that the doc trine of the majority of the Court is erroneous, and that it rests upon mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it tan, of course, do nothing beyond limits, it is powers. But, when acting within 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." in any sense an agent or delegate of limits which circumscribe His Lordship at pp. 193-194 for ascertaining the validity of an impugned Act and the extent of the authority of the Court in that behalf in the following words :- laid down "The established Courts of Justice, when a ques tion arises whether limits have been the prescribed exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, legislative powers were created, and affirmatively, the If what by which, negatively, has been done 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 (in . which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or conditions and restI'ictions." to enlarge constructively restricted. limited 1951 In re The Delh Laws Act, 1912, etc. Das J. 1042 SUPREME COURT REPORTS [1951] Having disposed of the grounds on which the judg ment of the majority of the High Court was founded, his Lordship proceeded to say :- "Their Lordships agree the Govcrnor-Gcner- al in Council could not, by any 'form of enactment, create in India, and arm with general legislative autho rity, a new legislative power, not created or authorised the Councils Act. Nothing of that kind has, their Lordships' opinioa, been done or attempted in the present case." Lord Selborne thereafter explained what had · really been done by Act XXII of 1869 which I may now pass over but to which I shall revert at a later stage. At p. 195 his Lordship stated :- is a fallacy "Their Lordships think that it speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority. in Cquncil. Their than that of the Governor-General whole operation immediately, under is, directly and and by virtue of this Act (XXII of 1869) itself. The proper judgment as the result of that place, person, judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as they may, (in their Lordships' judgment) be well exercised, either absolutely or conditionally." imperial or in a provincial legislature, to particular subjects, whether legislature has exercised laws, powers; and Then his Lordship rderred to the legislative practice the legis of entrusting such powers to persons in whom lature places confidence and actually gave several instances of such legislation which he held to be good but which according to the view of the majority of the High Court would be illegal. The majority of the High Court had held that sec tion 9 of Act XXII of 1869 and the notification there the ground of delegation of under were bad on f I ' 1951 Irr re The D~/hi Laws Act, 1912, etc. Das.[. S.c.R. SUPREME COURT REPORTS 1043 legislative power. This argument could be refuted in one of these ways, namely, by saying (1) that the Legislature was not an agent of Parliament, or (2) that it had not in fact delegated its powers, or (3) that it had full power to delegate;· The Privy Council pre ferred to base thCit decision on grounds (1) and (2). This does not mean that the Privy Council negatived the third ground. Indeed,. the ·language of Lord Selborne indicated just the contrary. If Privy Council intended to negative. the power of delegation, why was any com parison made between the powers of the Indian Legis lature and those of Imperial Parliament? Why was any reference made to the affirmative terms of the instrument by which legislature was constituted and the negative conditions or restrictions on its powers as tests for ascertaining the validity of the Act and why was it said that it was not for the Coun to inquire ·further? If delegation of power was denied why did the Privy Council take trouble of agreeing that the Governor-General in Council could not create and legislative authority a new legisla arm with general tive power. there was no question of delegation, why was it laid down that the efficacy of the act of the Lieutenant-Governor was referable the autho rity of the Governor-General in Council? It seems to me that after refuting the grounds on which the majo rity of the High Court had based the power of delegation but Privy Council conceded only set out the .limit of such power. In my opinion the Privy Council expressed, in . a different language, what Chief Justice Ganh had said abdication of Indian legislative powers by legislature without retaining control over the person to whom the power was delegated. At this time the Indian legislature, the Governor-General in Council,. was not a legislature responsible to people but was completely .dominated by the executive to the British · Parliament but and was subservient ·nevertheless constitutional notions of supremacy of die legislature the English Judges their decision, imbued with regarding the acts of . i.e., If 1044 SUPREME COURT REPORTS [1951] 1951 Jn re The Delhi Laws Act, 1912, etc. Das J. to it, within the ambit and scope circwm imputed it by the Parliament, the attributes of cribed for supreme and sovereign British Parliament and regard ed it within its own sphere as an image of that Par· liament. This position will be made clearer in subse quent decisions of the Privy Council to which some of their Lordships who decided Burah' s case were parties. Russell v. The Queen(') was concerned with the Canadian Temperance Act, 1878. The procedure for bringing Part I of that Act into force was as follows :- (a) A petition signed by not less than one-fourth of the voters of a country or city praying Act should be applied to the county or city was to be submitted; ' (b) the Governor-General was issue a proclamation directing that a poll be taken; and ( c) on adoption of the petition by the voters, the to become applicable to that county or city. Act was It was contended by the appellants' counsel assuming that Parliament of Canada had authority to pass a law for prohibiting and regulating the sales of intoxicating liquors, it could not delegate the power to bring into force the prohibitory and penal provisions of the Act to a majority of the electors of counties or cities. This contention was repelled by Sir Montague E. Smith at page 835 as follows :- itself is that the whole "The short answer to this objection It contains within the matters with which Act does not delegate any legislative powers whatso legislation ever. 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 these persons power to legislate. Parliament confer on itself enacts the condition and everything which is to the condition being fulfilled. Conditional follow upon in many cases convenient this kind legislation of is certainly not unusual, and legislate cannot be denied to the Parliament of Canada, the power so ll) <!880) L.R. 7 App. Cas. 829. ' , 1951 ln re The Delhi Laws A.ct, 1912, etc. Das J. S.C.R. SUPREME COURT REPORTS 1045 the subject of legislation is within its compe tency." the subject of Two things are to be noted. In the first place the Privy Council did not treat conditional legislation as legislative power. Conditional involving delegation of legislation, as will be seen hereafter, does in a amount to a delegation of . power and, therefore, the expression the ' Privy Council used "delegatfon" its ordinary in a ·stricter sense popular meaning. In the next place, his Lordship laid legislation being within the stress on competency of the legislature as test for the correct asq:rtaining the validity of · a law and referred to case of The Queen v. Burah(1) as authority on the point. On an examination of the· scheme of the British North America Act with· regard to the distribution of legisla tive powers and the general scope and effect of sections 91 and 92 of that ACt his· Lordship came to the con fall within clusion that the Temperance Act: did not the Provincial subjects legislatures and was, the Parlia ment of Canada. therefore, intra vires exclusively assigned The Liquor Licence Act, 1877, of Ontario authorised the Licence Commissioners to make regulations, create offences and annex penalties. It was contended legislature had no power to delegate the maxim powers the Commissioners and delegata potestas non potest delegare applied. This argument was repelled by the Privy Council in Hodge v. The Queen(2). The following observations from the judgment of Lord Fitz-Gerald who delivered the judg ment of the Privy Council are of great importance :- "It appears to their Lordships, however, that the objection thus raised by the appellan.ts is founded on an entire misconception of true character and position of the provincial· legislature. They are in no sense delegates of; or acting under any mandate from, the British North ~e Imperial Parliament. When (I) (1880) L.R. 7 App. Cas. 829. (2) (l 883) L.R. 9 App. Cas. 117. ' ~ 19S1 In re The Delh i.awS:Act, 1912, etc. DasJ. 1046 SUPREME COURT REPORTS [1951] in section 92, it conferred powers not America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the province and for provincial purposes in relation to the matters enumerated any sense to be exercised by delegation from or as agents of the Imperial Parliameqt, but authority as plenary and as ample within the lim, its prescribed by section 92 as the Imperial Parliament in the plenitude its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the Im perial Parliament, or the Parliament of the Dominion, would have had under to confide institution or body of its own creation to a municipal to subjects authority to make by-laws or resolutions as the object of specified carrying the enactment into operation and effect. the enactment, and with the same authority as like circumstances "It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive or absolutely fail." A little further down his Lordship observed :- itself. That is not so. "It was argued at the bar that a legislature com to agents or delegates mitting important regulations effaces It retains its powers intact, and can, whenever it pleases, destroy, the agency it has created and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how it shall continue legislature, and not for the Courts of law, to decide." them, are matters for each To the argument that the Provincial legislature had no power to confer authority on the License Commis sioners to impose imprisonment with hard labour for breach of newly created rules or by-laws, his Lordship the following reply at page 132 :- "The Provincial impose authority . to · legislature having imprisonment, with or without similar to detegate labour, had also power S.C.R. SUPREME COURT REPORTS 1047 authority called the License Commissioners." the municipal body which it created, l!lSt In re Tile Dellll 1-1 Act, 1912~ etc. Da1l. ' The result of the above observations naturally was that "if by-laws or resolutions are warranted, power to them seems necessary and equally · · lawfull." enforce Nobody can deny that the Act in question ac~ly delegated real legislative power · to the License Com the power to create offences and to missioners, for anneJ penalties cannot but be a part of real legislative judgment pro pow~. Indeed, the Privy Council ceeded on the footing that it was a delegation of legis. lative power but held that it was ancillary to legisla that such power of delegation was Co-extensive tion, with the power of legislation itself, that as long as the legislature had not effaced itself, such delegation the ·legislature was permissible and that should be delegated to decide how much power long such delegation should continue and for how for_ -the Court these were not questions to decide. The above passages clearly uphold views expressed by Garth C.J. in Empress v. Burah (supra) and state explicitly what was somewhat crypti in Queen v. Burah cally said by (supra) at page 194. about the legislature not having the power to set up, and arm with general legislative legislative power, not created or authority, a new authorized by the Councils Act. note that Sir Barnes Peacock and Sir Robert P. Collier who were among the members of the Board which decided The Queen v. Burah were also members of the Board which decided Hodge v. the Queen. the Privy Council it was for interesting It The quesnon raised in Powell v. Apollo Candle Com pany, Limited(1) was whether section 133 of the Customs Regulation Act, 1879, of New South Wales which authorised the Governor to levy a duty upon an article which, in the opinion of the Collector, possessed pro perties similar to those of a dutiable article, was invalid legislature had exceeded the powers conferred on it by section 45 of the Colonial the grmmd (1) (1885) L. R. 10 App. Cas. 282. 1048 SUPREME COURT REPORTS [1951] 1951 In re The Delhi Laws Act, 1912, etc. DasJ. the Constitution Act of New South Wales which authe> rised only the legislature to impose and levy customs duty. Sir Robert P. Colf1er in delivering the judgment of the Privy Council referred to The Queen v· Burah and Hodge v. The Queen to both of which he was a party. He observed at page 290 :- "These two cases have put an end to a doctrine which appears at one time to have had some currency, that a Colonial legislature is a delegate of the Imperial in the area Legislature. It that area unrestricted and not acting as an agent or a delegate." · its powers, but within legislature restricted is a At page 291, after indicating that the duties levied under the Order in Council were really levied by the authority of the Act under which the Order was issued, his Lordship concluded :- "The legislature has not parted with its perfect control over and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him." the Governor, This is nothing but a reiteration of the principle that short of self-effacement the legislature can freely dele legislature legislative power. As long as the gate its retains its own power of control, there can be no objec if the delegatee does anything tion to delegation, for foolish or wrong che same may at. once be put right by the legislature by removing the delegatee and appoint ing another in his place or taking up the matter in its own hands. The observations of Lord Selborne in The Queen v. Burah (supra) as to the legislature setting up a new legislative power should, therefore, be read In the light of these later decisions, and in the way I have suggested above. is supreme within The principle that even a provincial legislature of a Dom.inion lin1.its assigned by reiterated by section 92 of Lord Watson when delivering the Privy Council in The lJquidators of the Maritime Bank of Canda v. Receiver-General of New Brunswick('). the Act of 1867 was also judgment of (!) L. R. [1892) A. C. 438 at p. 442. S.C.R. SUPREME COURT REPORTS 1049 the J>rinciple of Baxur v. Ah Way(1) is an illustration of the appli cation of legi!llation. Section 50 of the Australian Customs Act of 1901 pro vided that no "prohibited imports"- should be imported. in a Section 52 enumerated series of sub-sections of which sub-section (g) was as follows:- the prohibited conditional imports "AU goods, the importation of which may be pro- · hibited by proclamation." 1951 In re The Delhi Law1 Act, 1912, etc. DasJ. (g) smoking. · At i.e., opium suitable the Governor-General The defendant was prosecuted for an offence against importing prohibited sections 50 and 52 imports, trial, before the High Court. the Prosecutor tendered in evidence the Commonwealth Gazette containing a in Council proclamation by under section 52 (g) declaring opium in that condition to be a prohibited import. Objection was taken, to the validity of the proclamation on the ground that sub section (g) of section 52 was ultra vires the Common wealth Parliament. The matter was Full Court and the Court held that section 52(g) was not a delegation of legislative power but was condi tional legislation. Griffith C.J. said at page 632 :- referred "It is of that the that every course obvious legislature does in one sense delegate some of its functions. It is too late in the day to say legislature cannot instance, a municipal authority and give create, for it power to make by-laws, or create a public authority that shall have with power to make regulations force of law, or confer upon the Governor-in-Council power to make regulations having the force of law, or upon the Judges of the Court power to make rules of Court having the force of law. Nor is it to the purpose to say that the legislature could have done the thing In one sense this is a dele itself. Of course it could. gation of authority because it authorises another body which it specifies to do something that it might have It is too late in the day to contend that done itself. such a delegation, if it is a delegation, is objectionable in any sense." 19Sl Inre 71u D•llll L"1r1 kt, 1912, etc. Dar I. 1050 SUPREME COURT REPORTS [1951] His Lordship then referred to The Q11em v; Buralz and held that this was a conditional legislation. The objection that under Chapter I, Part I, section 1 legis lative power was vested in the Federal Parliament and could not be delegated was disposed of by the lcanK.d that ".that section is merely Chief Justice by saying introdw:tory to the provisions of the Constitution which deal with the lcgis~." To the C()lltcntion that the power of the Conunoowcalth Parliament waa less than the power exercised by the British Parliament following answer wai given by O'Connor J. at page 639:- "Can it be seriously contended that, in creating a legislature such as that of. the Commonwealth with plenary powers, and in giving it power to deal with this particular subject -matter, to be the power is necessary and essential, and has denied it which been always treated as necessary and essential, for the acrcisc of that legislative power in England and in several of the Australian States. To read the gift of power to the Parliament of the Commonwealth in that limited way would, it seems to me, be altogether to deny full force and effect to the words of the Constitu tion itself." I saw J. referred to the legislative practice and on the principles laid down in Hodge v. The Queen, The Queen v. Burah and Powell v. Apollo Candle. Co. and conclud ed that the position in the case before him was exactly covered by in those cases. Higgins J. concluded his the following observa tions:- judgment with the decislons " .......... that the Federal Parliament has, within its ambit, full power to frame its laws in any fashion, using any agent, any agency, any machinery that in its W1Sdom it thinks fit, for the peace, order and good government of Australia." The next case to be referred to is that of In re ). Section 6 of War Measures Act, George Edwin Gray(1 1914, of the Parliament of Canada provided :- Cl) (1918) 57 S. C. C. UO; 42 D.L.R. I. ' • • • S.C.R. SUPREME COURT REPORTS 1051 '.'The Governor-General· in ·Council· shall have the power to do and authorise ·such. acts and. things and to : make ·from· time · to time such' orders· and regula tions as he may, by reason of· the-existence of real or apprehended war, deem necessary or adviseable for the security, defence, peace, order· and welfare of Canada. For greater .· certa'mty but not so as ·to restrict . the generality of the foregoing terms,. it is hereby declared. in Council that the powers of the_ Governor-General shall extend to all -matters coming within the classes of subjects hereinafter enumerated, that is to say ........ '!

19.:51 In re 'The 'Ddhl law• Acl, 1912, etc.- bas J, the body, of Here foIIO\ved sev~ral clauses. . It will be noclced there _was.only .. an that in the section enumeration of certain subjects with respect to ··which .. in · · Council was authorised to the. GO\·ernor-General make regulations but ihat' the legislature 'itself ' did not formulate any policy with "respect to any of . the. 'said subjects. The section gave a carte blanche, as it . were, to. the.· Governor-General in Council. In exercise of .the powers thus conferred, the Governor-General in .Council on .April 20, 1918, passed an Order in Council contain ing various regulations. The regulations had the effect of amending and modifying some parts of the Military Services Act, 1917. Grey; who. had been granted exemption under the Act of 191J7, was ordered to report for. duty., On his failure to do so, he was arrested. Then an application for a writ of habeas corpus was ~ taken out. The practice of authorising administrative . bod'ies to make regulations to carry out the objects of an Act instead of setting out all the details in the Act itself was not seriously questioned, but it was said the power to make regulations could not consti- tutionally be granted to such an extent as to enable the express provisions of a Statute to be amended or revealed. Fitzpatrick C. J., in· repelling argument, said at page 156 :- the above . "In view of ·Rex v. Halliday, [1917] ··A. C. 269, I do not think that this broad proposition can be main- tained. · · Parliament cannot, tions, but within reasonable limits at any rate it . can 21-3 S.C. India/68 indeed, ·abdicate its ' "' 1052 SUPREME COURT REPORTS [1951] 19Sl IN,.. TAe Deihl Law• Act, 1912, etc. Das I. delegate its power to the executive government. Such to determination powers must necessarily be subject at any time by Parliament, and needless to say its delegated authority, acts of the executive, under must fall within the ambit of the legislative pronounce ment by which its authority is measured." Even Idington that delegation of J. who delivered a dissenting judg ment conceded lations could be very well resorted to in such a way. as to be clearly understood as such, but his objection was the will of the people that "a wholesale surrender of to an autocratic power is exactly what we are fighting against." Duff J. at page 170 said :- legislation by "It is a description of very extravagant enactment to say that it professes (on any construction of it) to delegate to the Governor in Council the whole legislative authority of Parliament ................... . The powers granted could at any time be revoked and nullified by Parliament, anything done under them which Parliament did not, and for that matter could not, abandon any of jurisdiction. its own The true view of the effect of this type of leg'islation the subordinate body in which the law-making is that authority is vested by it the acts of agent or organ of the legislature and legis.. the agent take effect by virtue of the antecedent they shall lative declaration have the force of law." (express or implied) to act as legislative intended Anglin J., after referring to Powell v. Apollo Candle Company, (supra) proceeded :- "A complete abdication by legislative functions is something so the constitutionality of an attempt to do anything of the kind need not be considered. Short of such an limited delegation would seem to be abdication, any within the ambit of a jurisdiction certainly as wide as that of which it has been said by .......... " Parliament of inconceivable legislative His Lordship here quoted passages from Hodge v. The Queen and The Queen v. Burah. 1951 lll·re Tire Delhi' Laws Aet, -i912, etc' Das I. S.C.R. SUPREME COUR.T REPORTS 1053 I to submit a proposed the Provincial Legislature to amend the office of regards Section 92(1) of British North America Act, 1867, empowered constitution "excepting as Lieutenant-Governor." The Initiative and Referendum Act passed by the -legislature o£ Manitoba required the Lieutenant-Governor law to a body of voters totally distinct from the legislature and rendered him powerless to prevent its becoming an actual law if approved by the voters. The validity of the Act passed by the Legislature of Manitoba was called into question in In re The Initiative and Refer endum Act(1). On a consideration of the provisions of the British North Amerka Act, 1867, the Privy Council held that the impugned Act was ultra vires the Manitoba Legislature. This was enough to dispose of the appeal. But Lord Haldane proceeded to say, but without finally deciding :- legislative "Section 92 of the Act of 1867 entrusts power in a province to its legislature, and to that lature only. No doubt a body, with a power of legis lation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capatity intact, seek the assis tance of subordinate agencies, as had been done when in Hodge v. The Queen, the Legislature o£ 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 legislative power not created its own capacity a new by the Act to_ which it owes its existence·" In the above passage a distinction is sought to be legislature made between a delegation of power by while preserving its own capacity intact and a crea tion and endowment by the Legislature with its own capacity of a new legislative power not created by Act. According to the earlier authorities as well as to former for the creation legisla legislature in doing so whereas the latter could not be done, and endowment with its own capacity of new tive power postulated that the / this decision there was no objection to (1) [1919] A. C. 935. l•u TAe De/la Ltn.1.Ac1, 1912, ~tc. Da1 J, SUPREME COURT REPORTS [1951] had to transfer its own capacity and, not preserve its own capacity intact. therefore, did The case of The Victorian SteveJfor;;zg and General Contracting Co. v. Dignan(') was concerned with sec tion 3 of the Transport Workers Act, 1928-29, of Australia which provided :- "The Governor-General may make regulations, not inconsistent with this Act, which, notwithstanding anything in any other Act, but subject to the Acts In ·Act, 1901-1918, and the Acts lnterpreta terpretation law, force of t'lon Act, 1904-1916, shall have transport workers, with respect to the e~ployment of engagement, regulating in particular service, and discharge of transport workers, and transport workers, and licensing of persons as regulating or prohibiting the employment of unlicensed ·persons as the protection -of trartsport workers." transport workers, and for These things, that In exercise: of this section the powers conferred by the Governor-General on June 26, 1931, 'issued "Watersiqe Employment Regulations." transport lations provided, amongst other workers of certain kinds should be given priority in employment. This ran counter, to a certain extent, an award of the Coun of Conciliation and Arbitranon made under a previous Act. The appellants were con victed of an offence under regulations. The question was whether section 3 was ultra vires on ground Governor-General. This objection was overruled. The Court felt itself bound by its earlier decision in Roche v. Kronheimer(2), which was taken as an authority for the proposition that an authority of subordinate .invested in the Executive. Dixon J. making may be at p. 100 observed :- legislative power it delegated "I, therefore, retain the opinion which in the earlier case that Roche v. Kronheimer( 2 Jecide that a statute conferring upon I expressed ) did the Executive a to legislate upon some matter contained within (I) (1931)46 c.L.R. 73. (2) (1921) 29 c.L.R. 329. 19S1 In re Tiu D~h/i Lows Act, 1912, etc. Dai J. S.C.R. SUPREME COURT· REPORTS 1055 legislative power of the Par- one of the subjects of the 1 iament is a law with respect to that subject, and judicial the distribution of legislative, execuftve and restrain poY•ers in the Constitution does not operate to the power of the Parliament to make such a law. This does not mean Executive will be valid, however extensive or vague not fall outside the subject-matter may be, the boun<lari~ of Federal Power. There may be such a width or such an uncertainty of the subject-matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power." that a law confiding authority to if it does the ' Further down the learned Judge said :- legislation subordinate "In English law much weight has been given to the dependence of for ·its efficacy, the enactment, but upon the continuing not only on is so autho the statute by which it operation of rised. The statute the source of to be obligation and the expression of the continuing will of the Legislature." is conceived ' ... \- Then his Lordship referred to "the emphasis laid in retention Apollo's case and in Hodge's case upon by the legislature of the whole of its power of control into its and of its capacity to own hands." Evatt J. Judiciary to recognise the needs of the nation and not to act as a clog upon legislative and executive departments, expressed himself at p. 118 as follows :- the matter back the duty of referring to beyond extended "Such authority always issue by Parliament itself of binding commands. Par issue of such com liament could also authorise the mands by any person or authonty it chose to select 'Legislative power' connoted the power to or· create. deposit or delegate idea of parliamentary . sovereignty implied in the itself. the delegate or depository could be with power of drawn by the Parliament that had created it, and in It wa~ of course, always understood legislative power because 1951 In re The Delhi Laws Act, 1912, etc. Das J. 1056 SUPREME COURT REPORTS [1951] this sense Parliament had to preserve city intact', (In re Initiative and Referendum Act)". 'its own capa His Lordship after ~tating the view that, if Parlia ment passed a law within its powers, it might, as part legislation, endow a subordinate body with power to make regulations for the carrying out of the scheme described in the statute, posed the question Docs the Constitution impliedly prohibit Parliament from enlarging the extent of the powers to be conferred on subordinate authorities ? The learned Judges gave the answer :- the grantee every grant by "In my opinion, to make the Common wealth Parliament of authority rules and the Executive regulations, whether government or some other authority, is itself a grant of leg\slative power. The true nature and quality of legislative power of the Commonwealth Parliament involves, as part of its content, power to confer law making powers upon authorities other than Parliament itself. If such power to issue binding commands may the Executive lawfully be granted by Parliament or other agencies, an the extent of such power cannot of its that the extent of the power granted will often he a very material circumstance in the examination of validity of the the grant. But legislation conferring this is for a reason quite different and distinct from upon parliamentary action the absolute which is supposed to result from the theory of Separa- tion of Powers·" the grant. increase in restriction invalidate It is Again, his Lordship said at page 119 :- "The nature of the legislative power of the Com monwealth authority is plenary, but it must be possible law. passed by the Parliament to predicate of every that it law with respect to one or other of the is a specific subject-matters mentioned in sections 51 and 52 of the Constitution." Evatt J. then the matters which were material for the validity the purpose of ascertaining of an Act. He classified them under seven heads which indicated ' I ( < S.C.R. SUPREME COURT REPORTS 1057 it is not necessary to set out in detail. Under heads (5) and (6) Evatt J. made a distinction between a law with respect to a subject and a law with respect to the legislative power subject. According to him, a statute was valid if it was a to granted subject-matter-, although it was also a law with respect to the exercise set out at page 121 :- legislative power. His conclusion to make a law with respect to law with respect 1951 The De/Iii Law11 Act, 1912, etc. Da11J. "On therefore, final analysis, the Parliament of the Commonwealth is not competent to "abdicate" hs powers of legislation. This is not because Parliament is bound to perform any or all of its . legislative powers or functions, for it may elect not to do so ; and not because the doctrine of separation of powers prevents from granting authonty to other bodies to Parliament make laws or by-laws and legislative power, for in almost every statute ; but it does so because each and every one of laws passed by Parliament must answer upon one or more of the subject-matters stated in the law by which Parliament gave all Constitution. A to another body would be its law-making authority bad merely because to pass last mentioned." the description of a thereby exercise it would Judge leai:ned I entirely. agree with the to be able to withdraw legislature must not abdicate but must retain control legislative so as power conferred on the · subordinate authority when ever it may become necessary. The reported decisions to which reference has been made above clearly estab shon of such abdication or effacement, the that, legislature. may and . it is not for the Court to decide how much autho rity should be delegated or for how long such delegation should continue. that the law made by the le~laturc must be within the ambit of its legisla I tive power and it cannot go beyond that ambit. But am find no jmtification, either in principle or authority respect for the fanciful distinction between a law_ with freely delegate I also agree its legislative powers , ' 1951 TA1 Delhi Laws, Act, 1912, et.c. Das J. 1058 SUPREME COURT REPORTS [1951] In my opinion, the power to make that section· law with to a subject and a law with respect to the exercise of legislative power with Indeed, respect to that subject. to the observations of Lord Fitz-Gerald it is opposed in Hodge v. The Queen to which I have already refer red. law with includes the power to make a law respect to a subject respect to delegating the power to make a law with that subject. Further 'it should be noted (i) that Transport Workers Act was not an emergency measure passed during or on the eve of a war but was a peace (ii) that the time legislation passed in 1928-1929 and impugned section of the Act only enumerated the sub jects with respect to which power was given Governor-General to make regulations and, to use language of the American decisions, did not itself the said down any policy with respect to any of subjects or set up any standard to which regula tions so authorised were to conform. And yet the High Court of Australia found no difficulty in upholding the Evatt J. could not deny, at validity of the section was what he described page 123, as a legislative power of respect the Commonwealth but on an examination of the circumstances came to the conclusion the section could al<o be described as a law with respect to trade and commerce with other countries or among the States. W\th great respect to circumstances occasion and perhaps some justification for the dele gation of power made by the section. The section did regulations. nothing but delegate It did not It was purely and simply what he called a law with respect to the exercise of legislative power and nothing that were else and according to his classification, correct, should have been held to be invalid. It was a straining of language to say that section 3 was a · law therein. with respect to any of the subjects mentioned In my opinion, section 3 could only be supported on the simple and logical ground that short of se!f-eface ment delegation was permissible. the power to make lay down any policy or standard at all. learned Judge, to by him could only be referred f ( S.C.R SUPREME COURT REPORTS 1059 Croft v. Dunphy(1) reiterated the principle that the Colonial legislature was ,sovereign within its own ambit if the legislation was within and that legislative further enquiry was ne.cessary. At c01t1petence no page 163 Lord Macmillan said :- 1951 In re The Ddhi Laws Act, ,l9t2, etc. Das 1. 'Yhich is among "Once it is those upon found that a parlicular topic of lation the Dominion Parliament may competently peace, order and good government of Canada or as being one of the specific subjects enumerated in section 91 of their Lordships restrict the permitted scope' of such see no reason to legislation by any other consideration than is applica ble to the legislation of a fully sovereign State." the· British North · America Act, legislate as being for schemes the control and The case of Shannon v. Lower Mainland Dairy the Natural Products Board(2) was concerned with (British Columbia) Act, 1936, Products Marketing which enabled the Lieutenant-Governor in Council to to establish or set up a Central Marketing Board regulation of approve packing, storage and marketing of transpo~tation, to constitute marketing any natural products anrl bo;·irds to administer the >c:hemc; and to vest in It bo:irds the power ro should be noted sub. delegation of the Lieutenant legislative power hy Gove.rnor in Council. The appellants were dairy farmers and were affected by a inilk marketing scheme.. They, however, declined to obtain a licence from the board. They filed a suir for a declaration that the Act was the Privy ultra vires the Provincial Legislature· Council the validity of the Act was questioned on the ground of delegation of legislative power to the Lieu tcnant~Governor in Council and by the latter to Marketing Board~. Lord Atkin who delivered judgment of the Board said at p. 722 :- fees. the Act permitted even fix .and collect licence In "The third objection is powers of Provincial Legislatme that it is not within to delegate (I) (1933) A.C. 156; A.l.R. 1933 P.C. 16. (l) (1938] A.C. 708; A.I.R. 1939 P.C. 36. 1951 ln re The Delhi L!lws Act, 1912. etc. Das J. 1060 SUPREME COURT REPORTS [1951] so-called legislative powers to the Lieutenant-Governor in Council, or to give him powers of funher delegation. This objection appears to their Lordships subversive of the Provincial Legislature enjoys the nghts which while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament ; and it is unnecessary to try to enumerate the innumerable occasions on which legislatures, Pro Imperial, have entrusted various vincial, Dominion and those con persons and bodies with similar powers to tained in th'is Act." ... - It is worthy of note that the Privy Council not only the validity of a single delegation but also upheld upheld the validity of a sub-Oclegation of power. , the Governor-General in Council of Australia In Wishart v. Fraser(') the appellant had been con the National victed of an offence under reg. 41 of Security (Central) Regulations 1939-1940 made by Governor-General the National Security Act, 1933. That section 5 of section conferred power on regulations for securing the public Council to make safety and tl; ie defence of the Commonwealth and the territories of the Commonwealth and for prescribing all matters which were necessary or convenient to be prescribed for. the more effettual prosecution of It will be noticed that the section only enabled war. the Governor-General in Council to make regulations for securing the public safety etc., but did not lay down any policy at all or set up any standard to which the Regulat'lons were to conform. The section was more general the Canadian War Measures Act, 1914, which, besides referring to public safety etc., did enumerate several specific subjects with respect to be made. regulations Rich A. C. J., with whom Starke J. agreed, held that the matter was concluded by the decisions of the Court the Victorian Stevedoring & General Contracting than even section 6 of to which (I) (1941) 64 C.L.R. 470. { 1951 In re The Delhi Law1A.ct,1912, etc. DasJ. S.CJl. SUPREME COURT REPORTS 1061 there was such a width or uncertainty of Company v. DignanC)· To the suggestion that in sec tion 5 subject-matter that the enactment could not be said to be a law with respect to the naval and military defence or with respect to any other head of lative power, Dixon J .. at p. 485 gave the following answer :- "This suggestion c~ot be. sustained. The defence of a country is peculiarly the concern of the Executive, and in war the exigencies are so many, so varied and so urgent that width and generality are a characteristic of the powers which it must exercise. Section 5 is clearly directed to the prosecution of the· war and is · valid exercise of the defence power." The other learned Judges took the same view. · The circumstances that the subejct of defence power needs greater latitude for delegation of no answer to the supposed requirement that the statute must lay down the policr. legislative . power ). Jn in· (Ch. the same in George Edwin Gray's case( 3 ) 286 of Section 3 of the matter of a Reference as to Validity of Regulations in Relation to Chemicals etc.( 2 arose out the War Measures Act, Revised Statutes of Canada, 1927). statute was almost revised the War Measures Act which was section 6 of This considered section gave power· to the Governor~in-Council to do things and to make such and authorise such acts and orders and reason of the existence of real or apprehended war deem necessary the security, defence, peace, oruer and welfare of Canada. Without prejudice to the generality of specific foregoing provisions, the section set out several In this matters on which regulations could be made. itself case the validity of the War Measures Act, 1914, was not questioned because that was upheld in George Edwin Gray's case(3). The questions raised were whether the chemical regulation was ultra vires the power · given to the Governor-General in Council and whether the regulations as he might by (I) (1931) 46 C.L.R. 73. (3) 57 s.c.R. !Su. (2) (1943} S.C.C. I; (1943} 2 D.L.R. 248. 1951 /1t re The Delhi Laws Act, 1912, t'/C. 1062 SUPREME COURT REPORTS [1951] latter could sub-delegate bodies. Duff C. J. at page 12 said :- the powers to subordinate "As respect of any other measure which the Executive Government may be called upon to consider, the duty rests upon it to decide whether, in the con ditions confronting it, it deems' it necessary or advis the safety of the State to appoint such sub able for their powers ordinate agencies and to determine what shall be. risk of abuse "There is always, of course, some terms to when wide powers are committed in general the War Measures Act the anybody of men. Under final responsibility for the acts of the Executive n.one of its upon Parliament. Parliament abandons powers, none of its control over the Executive, legal or constitutional." Rinfret J. at page 17 observed :- "The powers conferred upon the Governor-in Council by the War Measures Act constitute a making authority, an authority legislative enactments such as should be deemed necessary and advisable by reason of war; and, when acting within is vested with limits, plenary powers of legislation ;., 1Jrge and of the same nature as those of Parliament itself : (Lord Selborne in The Queen v. Burah). Within the ambtt of the Act the Governor-in by which his authority is measured, Council is given the same authority as is vested in the Parliament law-making itself. He ha~ been given a power." the Governor-in-Council After quoting the passage from Hodge v. The Queen,(') the learned Judge proceeded at page 18 :- "Parliament has not abdicated its general It has not effaced legisla itself, as has been tive powers. It has indicated no intention of abandoning suggested~ colltrol and has made no abandonment of control in fact. The subordmate instrumentality, which it has created for exercising the responsible directly to Parliament for the continuance of its official existence." .powers, remains (I) (1883) L.R. 9 App. Cas. 117, I 1 19Sl In re The. Delhi Ltlw1Act,1912, etc. .DasJ. S.C.R. SUPREME· COURT REPORTS 1063 The le.arned Judge disposed of the doctrine of agency as follows :- "The maxim delegatus non is a ,potest delegare It has no reference _to an rule of the law of agency. legislate conferred by statute of Parlia- authority Indeed, the power of delegation being absolute- . ment. 1 y essential, in the circumstances for which the War Measures Act has been designed, so as to have a work able Act, that· power of delegation must be deemed to form part of·. the powers conferred by Parliament in the Act. The Governor-in-Council, within the ambit o{ is not a delegate. The Act constitutes a devo · the Act, legislative power of Parliament, and, lution of limits, it can legislate as Parlia within the prescribed ment itself could. Therefore, it can delegate its powers, whether legislative or administrative." Davis J. reiterated the same principle at pp. 25-26 : the safety valve of our constitutional system "But remains Parliament has not of government In the ultimate analysis the House of effaced Commons the people has, in a representative of practical sense, full power to amend or repeal the War Measures Act or to make ineffctive any of the orders in Council passed in pursuance of its provisions." itself. intact. To the same effect are the following observations of Kerwin J. at p. 30 :- "If at any great a power . has been conferred upon the Governoi - in-Council the reniedy lies in its own hands." time Parliament considers We have seen that in Shannon's case(1) the power given to the Lieutenant-Governor in Council expressly further delegation. And yet the included a power of If power of legis Privy Council upheld the enactment. the power of delegation lation contains w'1thin then logically the donee of the legislative power must also have the power of delegation as part of the content of the power delegated to him. The reasoning adopted by the learned Judges in the last Canadian case appears t~ me to be perfectly logical. itself (I) [1938] A.C. 708, A.I.R. 1939 P.C. 36. 19S1 l11n Tlie De/Iii Law• Act; 1912, ~le. Das I. 1064 SUPREME COURT REPORTS [1951] "only the Government of The case of King-Emperor v. Benoari Lal Sarma(') set out requires careful consideration. Section 72 as in the Ninth Schedule to India Act, 1935, read witli the India and Burma (Emergency Provisions) Act, 1940, authorised the Governor-General "in cases of emergency" to "make and promulgate ordinances for the peace, order and good government of British India or any part thereof" and further pro- vided that "any ordinance so made shall .......... have the like force of law as an Act passed by the Indian Legislature ............ " In exercise of the powers con- ferred upon him by this section the Governor-General on January 2, 1942, promulgated Ordinance No. II of 1942 called the Special Criminal Courts Ordinance. The preamble to the Ordinance recited that "an emer gency has arisen which makes it necessary to provide for tlie setting up of special Criminal Courts." By sec tion 1(3) the Act was to come into force in any Pro if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder with the Province .............. by notifica- tion in the Official Gazette, declares it to be in force in the Province and shall cease to be in force when such rescinded." Broadly speaking, sections notification 5, 10 and lb provided that a special Judge, a special Magistrate and a Summary Court should try such offen ces or classes of offences or such cases or classes or cases the Provincial Government or a servant of this behalf might by general Crown authorised or special order direct· Section 26 right of appeal or rev'1sion in respect of an order made by any of these Courts. The respondents, who were the Special all policemen, had been Magistrate at Jessore and sentenced to 2 years' imprisonment on charges of rioting, assault and committing prejudicial acts tending to cause disaffec tion in the Police force. They came up to High Court on petitions for Ordinance was ultra vires the powers of the Governor General. It was overlooked in the Courts below revision and contended convicted by took away (1) (1944) 72 I.A. 57; [1945] F.C.R. 161. ' ' ) .. l S.C.R. SUPREME COURT REPORTS ·1065 • 19Sl In re Tle D,Jhi 1-1 Act, 1912, etc. D11s I. importance of It was contended the Governor-General, if the Ordinance was ultra ,,;ces then the Court of the Special Magistrate· was not a Court at all and, therefore, there could be no question of revising the order made by such an illegal body. The proper course was cer tainly to proceed under section 491 of the Code of Criminal Procedure. The High Court held that the Ordinance was ultra vires. The majority of the Federal Court of India affirmed the decision of the High Court. the Privy Couru:iL Alth1;mgh The Crown went up to Ordinance No. II of 1942 was, after the decision of the High Court, replaced by Ordinance No. XIX of 1943, the Privy Council, in view of the the question of . the validity questions raised, decided of Ordinance No. II of 1942· The Ordinance was several grounds. Two of attacked on the objections related to the question of emergency. They are set out at p. 65. the Ordinance was language of section 1 (3) invalid either because the showed notwithstanding the preamble, did not consider that an emergency existed but was making· provision for a future emer the section amounted to what gency or else because legislation" by which Governor-General, without legal authority, sought to pass the decision whether an emergency existed to the Provincial Government instead of deciding it himself. Their Lordships held that there was no valid ground for either of these contention. Viscount Simon, who delivered the judgment of the Privy Council, disposed first objection at pp. 65 and 66. The second of the objection, be it remembered, was that the Governor General had by section 1 (3) delegated the question as to whether an emergency existed to the decision of the Provincial Government instead of deciding it himself. Therefore, the objection was not that any legislative power was, by section I (3), delegated but that the obf~gation to decide the question of emergency . on which depended the power of making the Ordinance the Provincial Government. had been delegated · to This objection is dealt with at pp. 66--67. It is with reference to that Viscount Simon observed :- particular objection "delegated called 19SI In re The Delhi Laws Act, 1912, elc. Das J. 1066 SUPREME COURT REPORTS [1951] "It undoubtedly the Govcrnor General, acting under Section 72 of Schedule IX, must himself discharge the duty of legislation there cast on it to other authorities. But him, and cannot transfer the Governor-General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of Indian in view of Legislature which, as already pointed out, the proclamation under section 102, had power make laws for a Province even in respect of matters which would otherwiJ;e be reserved to Prov'mcial lature. Their Lordships are unable to see to the was any valid objection, in point of Governor-General's Ordinance taking the actual setting up of a special court under terms of the Ordinance should take place at judged to be necessary by and witHm Provincial Government specially concerned. not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which local application of the provision of a statute 'is determined by the judgment of a loc.al administrative body as to its necessity." legality, the limits This I do not think Then his Lordship referred to Russell v. The Queen('). Learned counsel for the interveners relied on the above passage, and particularly on the opening sentence In legislative power could support of his contention that not be delegated at all. the above passage, properly understood, supports that contention. In the first place the above observations should be in the light of the context. The Privy Council in I have passage was related to the delegation mentioned and ·that objection the existence of emergence and of the decision as to In the next not to any delegation of legislative power. that section 72 gave a place it must be very special or legislation to Governor-General and the existence of that power of the existence of legislation was made conditional upon an emergency of which the Governor-General was the remembered limited power of repelling the particular objection. (I) (1880) L.R. 7 App. Cas. 829. .. S.C.R. SUPREME COURT REPORTS 1067 judge. As the decision as the existence of emergency was not an exercise of legislative power and could not be delegated the ordinance-making power also could not be delegated. This circumstance explains I cannot read that passage the opening sentence and as upsetting all that had been said in a series of earlier decisions about legislative power. therefore, throws no light on the question This decision, which is now before us, legislative namely, whether power may be delegated at all and if yes, to what extent it may be done. the delegability of 1951 11-.- In re The Delhi Urws Act, 1912; etc. D•s 'J.. the different decisions of risk of prolix:1ty quoted at I have at the length several passages from Privy Council and other Courts bearing on the question now before us not because any of them is binding on I believe they enable us to appreciate us but because deduce from them the following principles :- true legal principles. it is possible I think '. (a) that a legislature etstablished by or under an Act of the British Parliament is in no sense an agent or delegate of the British Parliament ; . (b) that the power of such a legislature is circums the Act by which it is constituted and the it, but within its ambit large and of the same cribed by legislature cannot go beyond it is supreme and its power is as nature as that of the British Parliament ; ( c) that the principle of non-delegation, founded either on the doctrine of separation of powers or on the theory of agency, has no application to· the British Parliament or the legislatures constituted by an Act of the British Parliament ; (d) that the ever present complexity of conditions with which · governments have to deal, power of delegation is necessary for and ancillary to the exercise of legislative power and is a component part of its content ; ) • ( e) that the operation of the act performed under the delegated power is directly and immediately under and by virtue of the the power was delegated and its efficacy is that antece dent law; l2-3 S.C. India/68 law by which referable 1068 SUPREME COURT REPORTS [1951] l9Sl In re The Delhi Law1 Act, 1912, etc. (f) if what the legislature docs 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 then it is that power is not for the Court to enquire further or to enlarge con structively those conditions or restrictions ; limited, (g) that while the legislature is acting within its there is, except as hereinafter stated. prescribed sphere limit to its power of delegation of its no degree of or for the legislature to deter legislative power, it being mine 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 legisla ture's power of delegation ; and limit to the (h) that the power of delegation is, however, sub- ject nnly to the qualification that the legislature may not abdicate or efface itself, that is to say, 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. Of the above propositions, (a) and (b) have not been seriously questioned before us but the controversy has centred round (c) to (h). sovereign It is conceded legislative powers the whole of lts thereby efface itself, but it is contended the British Parliament may transfer to any legislative or executive, and other person or body, that it that because it is a supreme omnipotent can do all legislature. A Dominion Legislature, it is pointed out, is a non-sovereign body and, there the attributes of fore, cannot claim the British Parliament possesses. sovereignty than eight several points of dissimilarity No less sovereign British Parliament and a between non-sovereign Dominion Legislature have been brought to our notice and a number of text books and judicial decisions have been cited before us. There can be no doubt that a Dominion Legislature cannot be sove- . rCign in the sense in which the British Parliament is sovereign, for the powers of the former, unlike those of to possess all ?I .. •l ( 1951 In re The Delhi Laws Act, 1912, ere. DO,, I. S.C·R. SUPREME COURT REPORTS 1009 it is constituted. law-making body, whose the Dominion Legislature clearly establish circumscribed by within its own sphere supreme and its power, mark the words, "is as large and of the same nature" as that of the British Parlia ment. Professor Dicey, it is true, at pages 149-150 of the authorities quoted above the British Parliament, instrument by which It cannot do anything outside the area or ambit fixed for it. But his Law. of the Constitution, 9th Edition, described a legislative assembly under a federal constitution as "merely a subordinate are of the nature of by-laws, valid whilst within the authority conferred upon it by the Constitution but if they go beyond the invalid or unconstitutional limits of such authority." He, no doubt, classified such a legislature as a non-sovereign body and likened its laws to the by-laws of a railway company. But in the Liquidators of the Maritime Bank of Canada v. Receiver to which reference has General of New Brunswick(1) already been made, Lord Watson plainly asserted that the status of a colonial legislature was "in no way analogous to that of a municipal institution." Indeed Dicey himself at page 112 acknowledged "colonial legislatures; in short,· are, within their. own sphere, copies of the Imperial Parliament." Jennings and Young in their Constitutional Laws of the British Empire (1938 Edition), at page 30 say:--: legislature that a colonial "It has been said 'sovereign within its powers.' To a political scientist this phrase is nonsense. But it is a convenient way of stating the legal rule that a power to legislate for the peace, order and good government of a colony is a power to enact any . kind of legislation, reasonable or unreasonable, desirable or undesirable." According to these authors "the most important application of this principle that a colonial legislature 'sovereign within its powers' is, however, in relation the delegation of legislative powers.'' They say that "a colonial legislature, within its powers, can the Imperial Parliament and it can, therefore, empower subordinate the same kind of legislation as (I) [1892] I\ .C. 437. ., ' - " , 11151 I• re TA1 Delhi Law1Act,1912, etc. Dai J, 1070 SUPREME COURT REPORTS [1951] regarded the p0wer legislation,'' sphere, all indeed in Shannon's case( 2 In short, legislature as Imperial Parliament itself and it, within its own the supreme the English authoril'ies legislate." Judges regarded a colonial replica or imputed image of the attributes Parliament and sovereign British the power of delegation of its including law-making functions. Thus in Hodge v. The Queen (supra) Lord Fitz-Gerald delegation as co-extensive "ancillary with the law-making power itself. This power of dele gation was conceded in Powell v. Apollo Candle Com In re George Edwin Gray('), delegatioo pany (supra). Evatt J. which was "short of abdication" was upheld- in Victorian Stevedoring & General Contracting Comp any v. Dignan (supra), acknowledged legislative power connoted the power to delegate legislative power. The objection against delegation or sub.delegation was regarded by Lord Atkin "as subversive of the rights" of the Provincial Legislature. In the matter of a Reference af to the Validity ofi Regu lations in Relation to Chemicals etc.( 8 ), a sub.delega If the tion of legislative power was also upheld. lature had no power of delegation, how could legislature authorise any local authority or any other regulations and by-laws ? person or body to make rules, There can be no doubt that real law is often made by regulat:\ng through the· conduct of imposing taxes,· 'creating offences and penalties. Sir Cecil Carr regulations made by sub. describes ordinate authorities as "the bulkiest part" of English law. Even in the land of the doctrine of the separation of powers where the legislative powers of Congress are the Constitution not sovereign but circumscribed by rule against delegation have had to exceptions to be recognised and allowed by the American judges legislature, dominated as it and jurists. The Indian regarded in the same was by the executive, was as the colonial legislature. Therefore, one cannot but concede the existence of the power of delegation in Indian Legislature even legislative power itself of the providing rules and instrumentalities the people, subordinate ) (I) 51 S.C.R. ISO. (2) [1938) A.C. 708. (3) (19-43) $.C.R. (Canada) I. ... .. • ., 1951 Inn The Delhi Laws Act, 1912, etc. Da~I. ... S.C.R. SUPREME COURT :Rl!PORTS 1071 though it was not a sovereign legislature like the British Parliament. In things, that the that the legislature exercises there can be no doubt lawcmaking power 'itself. the first place, assuming This concession, however, is not openly acknowledg ed by some people and they seek to camouflage· it by the dogmatic pretence the matters which are frequently found to be delegated are not really legisla tive powers at all but are only minor functions which can be delegated. these are not legislative powers in the real sense, even so where docs ·the power of delegation of even minor ·matters come from ? The answer must be that legislation" this power of delegation is "ancillary ·to is a part as said by Lord Fitz-Gerald and, therefore, of the content of the In the next place, legislature i.e., make the rules, may itself do ·the minor regulations and by-laws etc. instead of entrusting any other persons or body with the power of doing them. it can- When the legislatilre itself make the rules etc·, . not be denied legisla the legislature tive power, for, as If, how has only legislative power and nothing else. that ·power to a subordinate ever, the legislature gives in the process of authority, why should delegation, be: .transmuted into what it was, lose its original intrinsic attributes and legislative power ? The delegated power may be of a minor nature or only a fractional part of possessed by legislative power, Every grant of power to make rules etc. was stated by Evatt J. to be "itself a legislative power." Even what 'in Burah's grant of case(2) was called conditiQn.al legislation is, on strict analysis, nothing but a delegation of a fractional legis lative in his Const'.Jtution of Canada, 2nd Edition, at page 463 refers to conditional legislation as "this form of delegation." Ref erring . to several Acts · containing provisions similar those of Act · XXU of 1869 which were describ instances of the Privy Council as later on by legislative power is, nevertheless, a Indeed; Professor Kennedy in Dignan's case(1) I have already said, to be a part of something other legislature but the power, power. (I) [l931j 46 C.L.R. 73. (2) (1878) SI.A. 178. 1951 In re The Delhi Laws Act; 1912, etc. Das/. 1072 SUPREME· COURT REPORTS [1951] legislation as "a very common conditional legislation, Garth C. J. in Burah's case(') said that they amounted "in one sense to a · transfer of legislative power, because in each of them the legislature entrusts to some other person or body of persons regulations which it might have makint: of law and ) Anglin J. regarded condi made itself." In Gray's case( 2 tional instance" of In Choitram v. Commissioner of limited. delegation. Income-tax, Bihar(3 the Federal Coun expressed the ), view that when, Pie Governor made a notification under section 92 ( 1) of the Government of India Act . he exer therefore, be denied cised a legislative power. It cannot, that every legislature must, in any event, have some power of delegation of its law-making power and seeing that this power of delegation may be exercised by a is not Dominion Legislature which, sovereign, it must be conceded this power of delegation is implicit in or ancillary to the legislative the overall the British Parliament does, and sovereignty which the Dominion Legislature does not, possess. itself and is not an attribute of ex concessis, that although Dogma dies hard. It falls back upon a second line legislature of defence and contends legislative powers, may delegate the minor pans of its yet it cannot delegate its essential legislative powers. This is nothing but the doctrine of American Constitu tional law which makes a distinction between "strictly and exclusively", or "purely" or "essential" legisla- tive power and the power "to fill up the details", "to or "minor ascertain and declare such distinction I find no matters." when once In Burah's case(') Markby J· referring to Mr. Kennedy's arguments said at p. 98 :- facts and events" logical basis for the power of delegation. I concede "He boldly claimed lndi<\ Council of functions to the Lieutenant-Governor of Bengal. admit was Indian Legislative legislative Indeed, the only restriction he would the Legislative Council could not I understand him, the power to transfer its (I) f.L.R. 3 Cal. at p. i 43. (3) (1947] F:C.R. 116. (2) 57 S.C.R. 150. .., •. .., S.C.R. SUPREME COURT REPORTS 1073 .., though legislate, destroy its own power to I see no should stop there. The Advocate.. reason why he I think, go quite so far. But in my General did not, there is no narrower question which can be opinion substituted £or the broad and general question which learned counsel put and which I have considered. There are no words in the Acts of Parliament upon transferable ~ which legislative authority could be made in one class of cases and not in others." To the same effect are the following observations of Anglin J. in In re George Edwin Gray(1) at p. 176 :- 1951 In re Tiie Delhi Laws Act, 1912, etc. Dai.I. .. "Short of such an abdication; any tion would seem to be· within the ambit of a jurisdiction ........ " limited delega legislative If once the power of delegation is let in, where is the line of its termination to be drawn and who ~s to draw the line ? Lord Fitz-Gerald said in Hodge v. The Queen(2) :- the aid of subordinate "How far agencies, and how them, are matters for each legislature and not for the Courts of law to decide." long it shall continue it shall seek · '"" exactly drawn", and Lamar J. its ambit, fashion, using took upon themselves the power In Baxter v. Ah Way(3), Higgins J. said that the legislature had "within any agency, laws in any any machinery that in its wisdom it thinks fit." On the the Judges under the other hand in the United States due process clause in 1825 Marshall draw this line but, as we have seen, line has not been C. J. acknowledged in 1914 had to admit that "it is difficult to define the line." Who can · tell the line shall be when and where, if ever or at all, drawn ? I find it much easier to appreciate the simpler I have principles enunciated by the Privy Council as than to follow the everchanging and explained above elusive American doctrine. impossible logically to restrict delegation in the way suggested by learned the American decisions, counsel for the interveners would like us to adopt. If the principles of which that "the Indeed, it is • (Jj 57 s.c.R. ISO. (2) 9 App. Cas. 117. (3) (1909) 9 C.L.R. 626. 1951 In re The Delfti Laws Act,'1912, etc. Das J. 1074 SUPREME COURT REPORTS [1951] . -r theory legislature could do what by "essential" the power to legislative power is meant lay down policy and if it is to be held that this "essen- then it will be difficult tial" power cannot be delegated, to explain some of the statutes and decisions referred to above. I shall not refer to the English Emergency Powers (Defence Act) 3 & 4 Geo. VI, C. 20 or to cases like R. v. Halliday('), for the drastic powers there dele gated to the executive and upheld by the Court may the British Parlia be explained on ment as a sovereign lay down any principle pleased and was not bound to whatever but might give a blank cheque executive m I shall, however, times of emergency. find it difficult to explain the decisions in In re George Edwin Gray(2), Wishart v. Fraser(') and in In the matter of a Reference as to the Validity of Regulations in Relation to Chemicals('), all of which dealt with Domi- the widest powers of dele nion statutes conferring gation to the basis of the legal existence of a very wide power of delegation. In the relevant Acts, which came up for discussion the legislature laid down no policy at all but enumerated certain matters with respect the Governor General was authorised to make regulations. This i.... resolved by the learned coun difficulty is sought to be sel for the that those cases dealt with war measures and that in case of national emer to delegate all its powers to the executive for the defence of the country. The argument that an emergency can .enlarge the com petency of a legislature which is instru ment constituting the legislature is entirely untenable • and opposed alike Markby J. in Burah's case(supra) at p. 101 :- the executive, except upon to principle and authority. legislature is permitted Interveners by saying to which fixed by Sa'i<l .. "In extreme cases the executive may suspend operation of all laws. But I am not aware emergencies in any way affect the powers of the lature ; actually overawed." certainly not unless that such legislature were• (I) [1917] A.C. 260. (2) 57 S.C.R. 150 .. (3) (1941) 64 Cl,.R. 470. (4) (1943) S.C.R. (Canad~). 195l In re TAe De/Iii L~ Act, 1912, etc. S.C.R· SUPREME COURT· REPORTS 1075 Even the American cases do not support the conten tion urged. by. counsel for Schechter v. U. S.(1) to which reference has already been made Hughes C. J. at p. 1579 said :- interveners. Thus remedies. But "Extraordinary conditions may call for extraordi the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power." To the like effect arc the observations of Viscount for Ontario v. Canada Simon in Attorney-General Temperance Federation(2) :- itself, and not "True it is that an emergency may be the occasion legislation, but it is the nature of which calls for the the· legislation the existence of emer gency, that must determine whether it is valid or not." Usually, in times of emergency, the legislature exercises its power of delegation extensively and entrusts its Jaw-making powers the executive almost without hmit but this it can do only . because it has the power of delegation irrespective of the existence of any emer gency and it by no means follows that legislature cannot exercise its power of delegation as widely as it subjects chooses in peace time or with other than public security or the defence of the nation. There can be no logical reason for any such distinction. ltl<leed, without conceding the widest power of delega tion the decision in Victorian Stevedoring and General Contracting Company v. Dignan(3), take only one instance, cannot be explained, for section 3 o.f the Transport Workers Act which was considered in that legislation enacted in 1928-29 case was a peace and only enumerated subjects with respect to regulations was given to the which the power to make Governor-General. there cannot logically be any limit to the power of delegation of the Indian Legislature acting within its sphere. judgment In my respect to any (1) 265 U.S. 495. (2) [1946) A.C. 193 a1 p. 206. (3) 46 C.L.R. 73. 1951 In re The Delhi Laws Act, 1912, etc. DaJ /. 1076 SUPREME COURT REPORTS [1951} the exercise of the .., .,.. ..., -< It is that the The only rational legislature must not efface there is nothing to prevent the limitation upon the exercise of this absolute power of delegation by the . Indian Legis lature as by any Dominion Legislature is what has the several privy council and other been laid down in cases from which relevant passages have been quoted above. itself or abdicate all its powers and give up its control over the subordinate authority to whom it delegates its law making powers. It must not, without preserving its own capacity intact, create and arm with its own capacity a new legislative power not created or autho legislature· itself rised by the instrument by which was constituted. In short, it must not destroy its own legislative power. There is an antithesis. be.tween the abdication of legislative power and power of legislation. The former excludes or destroys the latter.. . There is no such antithesis between delegation of legislative power and the exercise of the legislative power, for however wide the delegation may legislature if it is be, so minded, from at any 6me, withdrawing the matter law-making hands and exercising involves powers. The delegation of it doe5 not an exercise of exclude or destroy the legislative power itself, for legislative power the exercise law with respect to a subject of it. A power to make must, as we have seen, power to make a law delegating that power. Havmg regard to emry No. t;fJ in ljie Union List and .article residuary power of our 248 of our Constitution, include delegation of Parliament is wide enough to l~gislative power of a subject-matter with respect to wh'ich Parliament may make a law. Apart from that if a statute laying down a policy and consideration. delegating power to a subordinate authority to make rules and that policy is per regulations to carry out mi~sible then ing legislative power to another person or body should be unconst'itutional if . the legislature does not efface its control over the subordinate itself or abandon include within its content, is not diminished by legislative power. legislative power its own l do not see why an Act merely delcgat- • 1951 In re The De/Iii Laws Act, 1912, etc. Das J. S.C.R. SUPREME COURT REPORTS If the legislature can make a authority, why cannot authority. down a bare principle or policy and commanding people to obey the rules and regulations, made by a legislature subordinate without effacing itself but keeping its own capacity intact, leave the entire matter to ·a subordinate autho rity and Command people to obey the Commands of that subordinate authority ? The substance of thing is the command which is binding and the efficacy of the rules of conduct made by the subordinate autho rity ·is due to on other authonty than the command of the legislature itself. Therefore, short of self-effacement, the Jegislative power may be as· freely and widely dele gated as the British the Dominion Legislature, Parliament, may think fit and choose. o~nly and without doing violence the go-bye judges The difficulties in the way of the American and jurists are quite understandable. Forty of State Constitutions had expressly adopted ·the doctrine of separation of powers by providing that one depart ment of the government shall never exercise the powers assigned to the other two departments. The remaining eight State Constitutions as well as their Federal Con stitution impliedly accepted the doctrine· The Ameri thus adopted the doctrine of can Constitutions having Locke and Montesquieu_as to the separation of powers in its full force, the American judges and jurists could not, constitutions, give that doctrine and acknowledge the principle of delegation of legislative power to its fullest extent and had, therefore, to make a compromise between dogma and practical necessity by .confining the doctrine of separation of powers to merely laying down policy. In Australia, in spite of the identity of language of. its Constitution with the American pattern, "legal symmetry gave way to commonsense." Canacl\an Supreme Court has sub-delegation of no difficulty legislative· power. When in to conditional legislation the Privy Council in Burah's case and in RuS$e//' s case obviously used that there was no delegation expression "delegation" m even permitting reference saJ.d 1951 In re The Delhi Law:1 Act, 1912, etc. Das J. Hl.78 SuPREME COURT REPORTS [1951] the scope or ambit of. sense of effacement or abdication by legislature, which sense has been made more explicit and clear in Hodge's case and other subsequent cases. In Benoari there was no question of I have shown, Lal' s case, as delegation of legislative power at all. When referring to section 4 of the Bombay City Civil Court Act, 1948, I said in my judgment in T/1e State of Bombay v. Narottamdas(') that the section was an instance of con that there was no delegation of ditional legislation and legislative power to the executive, I only adopted the language used by the Privy Council in Burak' s case in the sense I have explained above. It was not neccs- sary in that 'ase to examine or express any opinion on the larger question as power of delegation or as to whether conditional legis lation was a species of delegation of legislative power. In England the power of delegation of legislative iJower bas never 11cen and cannot be successfully challenged in Court and nobody has ever thought of questioning the validity of the drastic Emergency Powers (Defence) Act, 1939, nicknamed as the "Everything and Every body Act." the doctrine of separation of powers was at no stage of her constitutional history under the British Crown accepted as the governing prin ciple and now that in our Constitution we have made legislative and executive powers by a joint rcsponSi definitely adopting the principle of the bility of the Council of Mfrtlsters to Parliament on the same lines as the system of joint responsibility of the there is 1\0 British Cabinet to the British Parliament into our compelling necesility whatever for the elusive American doctrine of non-dele~tion which bas not yet succeeded in defining its own limit. I see no cogent reason why the "artificial and almost im practicable classification" of governmental powers laid down by the American decisions in a haphazard and illogical manner should be magnified into and epito laying down a sound principle of legislation, mised as and be adopted by us. Indian In my opinion, the law enacted by the validity of a fusion of the importing In India (1) [1951) S.C.R. Sl. .. - S.C.R. SUPREME COUkT REPORTS 1079 instrument creating the Legislature conferring legislative power on a subordi nate authority are : ( 1) Is the law within the legislative competency fixed by legis- . lature ? and (ii) Has the legislature effaced itself or abdicated or destroyed its ow-n If that to the answer to the second in the negative, it is not for any Court of Justice to enquire further or. to question the wisdom or the policy of the law. the first is in the affirmative and legislative power ? t9S1 In re The Delhi Laws Act, 1912, etc. Das J. I do not share legislators so falling legislature 'will shirk· its It is said that it will be dangerous if the the legislative power may come to be vested. legislature legislative functions is permitted · to delegate all its control ~r effacing formally abdicating without responsi itself, for then bility and go to sleep and peoples' life, liberty or pro perty may be made to depend · on the whims of meanest police officer in whom, by successive delega~ tion, I the feeling of do not feel perturbed. poss~bly entertain . oppression which some people Jn;lf as to the danger that qiay ensue legislature goes to sleep after delegating tts legislative functions, for r feel sure slumber will have a rude awakening when they will find themselves thrown out of the legislative chamber the next general election. I have no doubt in my mind that the its powers the acti.vitlcs will always keep a watchful eye on it delegates its powers of legislation and that the powers are . 'being misused to the acts done public, under s~ch delegation or app<>iht some more competent authority or withdraw the matter into its own hands. There is and will always remain some risk of abuse whenever wide remedy general terms to a subordinate body, but the lies . in the corrective power of ·the legislature itself and on ultimate analysis, in the vigilance of. public opinion and not judicial legislature within exercise of law-making power by the its coristitution· the ambit fixed by it finds the detriment of legislative powers are committed the legislature will either nullify legislature after delegating the persons to whom that as soon as fiat against the instrument of in arbitrary 1951 In re The Delhi Laws Act, 1912, etc. Das J. 1080 SUPREME COURT REPORTS (1951] in law. is the correct position It is not for the Court to substitute 'its own notions of expediency for the will of the legislature. This, I ap prehend, In my judg if our law is not to be completely divorced from ment, logic and is not to give way and surrender itself to sterile dogma, the widest power of delegation of legis lative power must perforce be conceded to our Parlia this necessary power will "stop the ment. A denial of wheels of government" and we shall be acting "as a clog upon the legislative and executive departments.'' ... interveners. relied on by The opinion of The observations of Varadachariar C. J. in Emperor v. Benoari Lall(') were strongly learned counsel eminent Chief Justice is always entitled to the highest therefore, carefully cons~der the respect and one must, It will be seen from the report that the learned same. Advocate-General of India appearing for the Governor General in Council definitely adopted the observations of Judge Ranney, which I have already quoted, as his argument without conceding that American decisions could offer a safe guidance on the point. Tnis concession and the reference in Burah's case to "the nature and induced and legislation" appear to have principles of led the learned Chief Justice to adopt the principles of the American decisions the non-delegat'ion the several the learned Chief Justice opined Privy Council cases, that there was nothing in those cases which could be said to be inconsistent with the principles laid down Then his Lordship discussed the safe referred to various American decisions and guards against delegated legislation suggested by Sir Cecil Carr and concluded :- legislative powers. After referring Judge Ranney. regarding "As we have safeguards suggested already observed, the considera foregoing than considerations of policy passages may be no more the English Constitution. But or expediency under under Constitutions like the Indian and the American, where the constitutionality of legislation is examinable in our in a court of these considerations are, law, (I) (1943) F.C.R. 96,A.I.R.1943 F.C. 36. 1951 In re The Delhi Law! Act, 1912, etc. Da11J. S.C.R. SUPREME COURT REPORTS 1081 In the present case, opiruon, an integral and essential part of the limitation responsibility by the on · the extent of delegation of it is legislature to the executive. the ordinance-making autho impossible to deny that rity has wholly evaded responsibility of down any rules or conditions or even enunciating policy with reference to which cases are to be assigned the Special to the ordinary criminal Courts and to Courts respectively and the executive unguided and uncontrolled action of authorities. This is not a criticism of the policy of laiw-as counsel for the Crown would make it appear -but a complaint that the law has laid down no policy or principle to guide and control the exercise of the undefined powers entrusted to the executive authorities by sections 5, 10 and 16 of the Ordinance·" left the whole matter to referred fixed by the notion legislation firmly established by The learned Chief Justice overlooked the fact that there was Indian underlying the frame of the Privy always the Act of Council that within the ambit Indian Legislature was as supreme and Parliament the the British legislation as had as plenary powers of Parl'1ament itself, and that "the nature and principles to in Burah's case was legislation" legislation and not the American English concept of respect to the learned Chief variety. With the utmost I firid myself unable to accept as correct his Justice, view that the pronouncements of their Lordships of the Privy Council in the several cases referred to by him did not authorise "every kind of delegation by the legislature." On the contrary, for I -have already explained, I read the passages I have quoted from the different Privy Council cases as indicating in unmistakable terms that the Privy Council approved of legislative power the widest power of delegation of which was short of abdication or effacement of learned legislature Chief Justice on this point was expressly overruled by judgment of the Viscount Simon who delivered from that decision in the Privy Council in the appeal following words :- itself. Further:, the view of reasons 49S1 l•n The Del/ti 1-s Act, 1912, etc. Dasi. 1082 SUPREME COURT REPORTS (19'1] "With greatest these eminent respect their Lordships feel bound to point out that judges, the question whether the ordinance is intra virt:s or ultra virt:s does not depend on considerations of It depends simply on examin prudence or of policy. ing the language of the Government of India Act and of comparing the legislative autho, ity conferred on the Governor-General with the provisions of the ordinance by which he is purponing to exercise that authority. that as a matter of wise and well-framed It may be legislation . frame a statute in such a way that the offender may know in advance before what court he will be brought if he is charged with a given crime ; but that in a ques tion of policy, not of law. There is nothing of which Indian Constitution their Lordships arc aware in the Central Legislature or under the Governor-General's emergency powers, wh'1ch does not accord with this principle." invalid a statute, whether passed by if circumstances permit, is better, render Funher, whatever was the cogency of the view wider the Government of India Act our Constitution approximated more nearly and closely to the American Constitution than it does the British Constitution, that view cannot posstbly hold good now in view of the provisions of our new Constitution under which the the Legislature, and the Executive residuary power of Parliament has been given legislation in the Widest In the premises, I am terms. unable to accept the correctness of the observations of the learned Chief Justice of the Federal Court. responsible judgment of learned counsel for Reliance was placed by interveners on the the Federal Court in /atindra Nath Gupta v. Province of Bihar('). The learned Attorney-General on behalf of the President has strenuously challenged the correctness of the deci sion of the majority of the Federal Court in that case. in a way been Indeed, that decision. That case was concerned occasioned by reference has the present (1) [1949] F.C.R. S9S, A.l.R. 1949 F.C. 17S. • .. .. • S.C.R.. SUPREME COURT REPORTS 1083 with the question of the validity of the proviso to scc- tion 1 (3) of the Bihar Maintenance of Public Order Act (V of 1947). Section 1 (3) provided that the Act should remain in force for a period for one year from the date of the commencement. The relevant part of the proviso was in the following terms :- 1951 In re The Delhi Laws Act, 1912, etc. Das J. "Provided the Provincial Government may, by noafication, on a resolution passed by the Bihar Legislative Assembly and agreed the Smar Legislative Council, dircet that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the noti fication." to by it was a delegation of learned Judge did not decide Three of the learned Judges held that the proviso there under were ultra vires and and the notification void. They the power laid particular emphasis on given to the ProvinciaLGovernment to, make any modi fication in the Act when extending its · lill~ as indicat legislative power. Another this point but agreed to set aside the order of detention on another ground not material for our pr.esent purpose and remaining learned Judge took a different view of- the effect of the proviso and held that it was a conditional legislation within the meaning of the decision in The Queen v. Burah (supra). On a perusal of the judgment the Federal Court in that case it of the majority of appears to me that the important questions were . not convassed before them half so strenuously and this occasion . Indeed, learned counsel appearing for the Province of Bihar practically con ceded that the delegation of the power of modification that his whole case was was not permissible and ptovision was severable and that part of the rest was legislation which came laid doWI1 in Burah's case. The within the principle majority of power of modification section 1 (3) was not severable as suggested by counsel they have been done before us on h<>Wever, held to believe · 1 that the Court, the proviso conditional included I am 23-3 s.c. India/68 1951 Inn The Delhi 1-• Act,.1912, etc. DasJ. .. 1084 SUPREME COURT REPORTS [1951] notification consequently the whole of the proviso was ultra issued I feel bound to say, with the reason given already, that the Federal the majority of in agreement with learned Attorney-General, I ai:n unable to accept relating to judgment, legislative the widest power of dele In the light of the principles discussed above referred ~d, therefore, titres thereunder was 'illegal. utmost humility and observations of . Court in that case went too far and, them as correct exposition of the principles In my the delegation of the power of delegation is itself and legislature may exercise gation.· I now proceed to us. inherent in that, short of self-effacement, legislative power. the question to discuss Re Question 1 : The Delhi Laws Act, 1912, came to be passed in the circumstances recited in the preambles to the Act. By notification No. 911, dateil September 17, 1912, the Central Government, with the sanction of the Secretary of State for India, took under its imme diate authority and management the territory mention ed in Schedule A, whith was formely 'included in the Province of the Punjab and provided for the adminis tration thereof by a· Chief Commissioner as a separate Province to be known as the Province of Delhi. The separation of Delhi from the Province of the Punjab its constitution as a separate Province required immediate provision for the making of laws for the new Province. Accordingly, Delhi Laws Act, 1912, was passed by the Governor-General in Council on Septem ber 18, 1912. Section 2 of the Act saved the territorial application of all the then existing laws which were in :force there prior to such separation. Section 7 provided 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." S.C.R. SUPREME COURT REPORTS 10S5 In order to determine the validity of this Act it is necessary to ascertain the scope and ambit of the legis lative power of the Governor-General in Council in the year 1912. This has to be done, as said by Lord Selborne in Burah's case by looking to the instru legislative powers ment by which affirmatively they arc were created restricted. and by which Jiegatively, terms of the 1951 In re The Delhi Ltzw4 Act, J912 etc. .Daa J. ~ was,- under section 40, to be noted is The first- Parliamentary Act Charter Act, 1833 (3 & 4 Will. IV C. 85). By section 39 the superintendence, direction and control of the whole civil and military government was vested in a to be styled "The Governor-General and Counsellors, India in Council." The Council Governor-General of to be composed of three members who were or had bee'n servants of the Company, and one member who was not a servant of the Company. Tllis fourth member was not entitled to sit or vote in said Council except at meetings thereof for making law and regulations. Section 43 empowered the Governor General in Council "to make laws and regulations for all persons, whether British or native, foreigners or others, and for all Courts of Justice, whether establish ed by His Majesty's Charters or otherwise, and jurisdiction thereof, and for all places and things what- soever ...................... " save and except as therein specified. Section 44 reserved power to the Court of Directors to disallow any. law made by the Govcmor General in Council. Section 45 provided. that all laws the same force and regulations so made should be of and effect within and throughout territories the said the same as any Act of Parliament would be within territories and should be taken notice of by all Courts in the same manner as an Act of Parliament would be taken notice of. Section 66 enabled the Governors or Governors in Council of Bengal; Madras, -Bombay and Agra to propose to the Governor-General in Coun cil drafts or projects of any law and the latter was consider the same. The former legislative powers of the Governors in Council appear to have been taken (16 and away by this Act. The Charter Act of 1853 ~ • 1951 Tlk D•lhl 1..aw1A.ct,1912, etc. DtU I. 1086 SUPREME COURT REPORTS [1951] 106) India the Councils of the Act of 1861 by the Governor-General or took over theretofore vested that all other force with relation to territories India Company. Then came 17 Vice. C. 95) by section 22 enlarged the Governor General's Council but legislative the scope of powers under section 43 of the Act of 1833 remained intact. By the Government of India Act, 1858 (21 & 22 Vic. C the British Crown government of the East Indian (24 & 25 Vic. C. 67). Section 2 Councils Act, 1861 repealed sections 40, 43, 44, 50, 66 and 70 of the Act of 1833 and provided enactments the Council whatsoever then in Governors should continue in force. This meant that section 45 of the Act of 1833 wlllch gave to the the Governor-General in Council the force oE made by an Act of Parliament continued, so that the laws made the Governor-General in Council also had in British the force of an Act oE Parliament. Section 3 dealt with the composition of the Governor-Gen.era! in Council. Section 22 substan rc<nacted the provisions of section 43 of the tially Act of 1833 subject to the proviso that the Governor Gcneral in Council should not have power to repeal or affect the provisions of this Act of 1861 or other Acts therein' specified. The power of Council of the Presidencies to make laws was restored. Tllis A.ct was subsequently amended from time to time but those modifications related principally to the com position of in Council. The Council was enlarged but all the time it was dominated by the executive and official block of members so the laws made by in Council were tantamount thus, a sort of fusion in which the executive power domin therefore, a dele ated over the the executive made no gation of legislative power to difference in practice. The ambit and scope of legisladve power remained as wide and vague as in 1833. Therefore, the legislative power of the Governor Gencral. in Council ·in 1912 when the Delhi Laws Act was passed was .the same as in 1869 when Act XXII to executive fiat. There was, legislative power and, the Governor-General the Governor-General the Governors • • 1951 In re TM Delhi Laws Act, 1912. etc. Das J. S.C.R. SUPREME COURT REPORTS 1087 of 1869 which was considered in Burah's case was passed. the other 'It will be interesting to compare the to certain places mentioned language of section 7 of the Delhi Laws Act with section 8 of Act XXII of 1869 which was considered by the Privy Council in Burah's case. Section 9 of that Act authe> rised the Lieutenant-Governor, by notification in Calcutta Gazette, to extend mutatis mutandis all or any of the provisions contained in the other sections of the Act therein· The Lieutenant-Governor did, by notification, extend all the provisions of that Act to the district of Khasi and Jaintia Hills. That means that section 8 was also extended to that district. On a close analysis it will be noticed that section 8 authorised the Lieutenant-Governor law or any portion of any law extend to that place any ( i) now in force in territories subject to his government or (1i) which may hereafter be enacted by the Council (a) of the Governor-General or (b) of said Lieutenant-G'lvernor. Note the points of simila nues. By section 7 of the Delhi Laws Act, as by section 8 of Act XXII of 1869, all existing laws could be extended. No serious objection has been to the propriety of giving power to the executive apply the existing laws because laws were all known to the Governor-General in Council and latter might, conceivably, be presumed to have applied the desirabiY1ty of extending those laws to the territories in question. The real objec tion to section 7 of the Delhi Laws Act is that it gave power to the executive w extend future laws, because, It is said, the Governor-General in Council could not possibly anticipate what , laws it or any provincial legishitive authority would make in future. The force laws to be made in future by the Governor-General in Council is negligible but the objection certainly is of considerable force in the case of the . future laws to be made by any Provin cial authority. But section 8 of Act XXII of 1869 authorised in question the future laws to be made, not districts the Lieutenant-Governor to extend this objection with legislative mind the existing regard to .. • 1951 lnr~ The Delhi Lat., Act, 1912, etc. Dt1J J. 1088 SUPREME COURT REPORTS [1951} , " future separation authorising (legislative) the charge of territories under Lieutenant-Governor to extend for the other parts of the laws were made in Council, but also only by the Governor-General the Lieutenant-Governor in Council Aftcc made by those districts were, by notification, separated the other the Lieutenant-Governor, the laws made by the Lieutenant-Governor in Council ipso fact<> (legislative) after such separation did not there would be apply to those districts, for otherwise the Lieutenant-Governor (executive) districts. Therefore, when Council tories under the Lieutenant-Governor (executive) the former could not be assumed to have applied its legislative mind to the suitability or neces- sity of such knowing then that those laws would later on be extend- the Lieutenant-Governor districts by (executive). Further and what is more important is that at any rate the Governor-General irl Council while enacting sections 8 and 9 of Act XXII of 1869 could not possibly have applied its suitability of Lieutenant-Governor in Council for the new districts. Therefore, 'in this respect section 7 of the Delhi laws Act stood exactly on the same footing- as section 8 of Act XXII cif 1869. legislative mind to laws to be made by those future laws for those districts, for there was no "' It is said that under latter section the Lieutenant Governor had no power to modify the law before ex tending the same whereas under the former section the such a Provincial Government had that power and power involved a law-making power. Section 9 of Act XXII of 1869 authorised extend mutatis mutandis all or any of the provisions of the Act to certain territories and section 8 authorised the Lieutenant-Governor to extend any law or any portion of any law. The power to extend an Act mutatis mutandis certainly however small it may be. The power to extend a part of an Act necessarily included the power to omit some important sections or parts of some sections, or the the Lieutenant-Governor involved some modification ~ " • 19S1 ln re The Delhi Law1 Act, 1912, etc. Dasi. S.C,R. SUPREME COURT REPORTS 1089 the extension of a the Privy Council qualifications and provisos to any sections· A power of modification wa~ thu~ involved in this process also. The illustrations given by at the judgment in Burah's case clearly indicate end of their law "subject to any restric the Local Govern tions, limitation, or proviso which ment may think proper" was considered by their Lord It may well be argued ships to be quite permissible. that the intention of section 7 of the · Delhi Laws Act was_ that the permissible modifications were to be such as would, after modification, leave the general Charac ter of the enactment intact. One of the meanings of the word "modify" is given in the Oxford Dictionary Vol. I, page 1269, as "to alter without radical formation." the word the Delhi Laws Act, "modification" thereby were nothing more than adaptations which were included in the expressions "mutatis mutandis" and the "restric tions, limitations or proviso" mentioned in the several instances of conditional It would, thel'.efore, seem quite clear, Privy CounciL the Delhi Laws Act stood on the same footing as section 8 of Act XXII of 1869 and had the same effect as the latter section. If this meaning is given that section 7 of the modifications this construction, in section 7 of referred to by contemplated legislation What the effect of sections 8 and 9 of Act XXII of language of Lord 1869 was had better be said in the Selborne in Burah's case at pp. 194-195 :- from the to be appointed by and responsible to "The Governor-General in Council has determined, in the due and ordinary course of legislation, to remove a particular district jurisdiction of the ordi nary Courts and offices, and place it under new Courts and offices, Lieutenant-Governor of Bengal ; Lieutenant-Governor to say at what time that change shall take place; and also enabling him, not to make what laws he pleases for that or any other district, but to apply by public notification to that district any law, or part of a law, which either already was, or from time might be in force by proper time to legislative leaving 19SI Jn re The Delhi Laws Act, 1912, etc. Das J. 1090 SUPREME COURT REPORTS [1951] subje.ct that all territories the other that point also, take place ; but laws and every part of to his authority, "in far, government." The legislature determined that, so that it was a certain change should expedient to leave the time, and the manner of carry ing it into . effect to the discretion of the Lieutenant Governor ; and also, that the laws which were or might territories subject to the same be in force in the other it m·1ght be fit and proper Government were such as this district also : but that, as it was not to apply to them, certain so applied, it was could with equal convenience be to entrust a discretion expedient, on to the Lieutenant-Governor. This having been done to the Khasi as to the Garo Hills, what was done as and Jaintia Hills ? The was fit and proper Khasi and J aintia Hills should also be the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, not necessarily and at all events but if and when it desirable to do so ; Governor-General should think and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district. And accordingly these purposes also, a discfetionary power to the Lieutenant-Governor." the adjoining district of legislature entrusted, legislature decided removed If section 8 of Act XXII of 1869 could, on the above instance reasoning and construction be upheld as in ot "good and valid conditional legislation" I do not sec why section 7 of the Delhi Laws Act should not be so language upheld on the same rcasoni ng. Adapting the the Delhi Act it may be said of Lord Selbornc to with equal .force that, when the new Province of Delhi was set up, the Governor-General in Council which enacted the Delhi Laws Act, had decided that it was expedient to enable the Provincial Government, not to make what law it pleased for the n~w Province, but to apply, by notification, to Province any enactment which either already was or from in force by pro per legislative authority in the other Provinces and also time to time might be legislature, i.e., ,. • 19Sl In re The Delh Laws Act, 1912, etc. Das J. S.C.R. SUPREME COURT REPORTS 1091 legislatim1. If thought fit. It may be said the laws which were or might be in force ·in the other Provinces were such as it might be fit and proper to apply to this new Province but as it was not certain them could wfrh that all those laws, and every part of equal convenience be so applied, it was expedient on to the Provincial that point to entrust a discretion laws or such part Government to apply such of the use of the word of such laws as it "modification" in the Delhi Laws Act is regarded as hav'mg given wider power to the Provincial Govern ment, than what was given to the Lieutenant-Governor by section 89 of Act XXII of 1869, even that fact can make no difference, for such a power of modification .can also be easily . brought within the principle of con the appro ditional phate legislature, i.e., the Governor-General in Council, which enacted the Delhi Laws . Act applied its legisla tive mind. and decided laws which were or might be in force in any other part of British India were such that it ni1ght be fit and proper to apply it to the new Province of Delhi but as it was ·not certain that all those· laws could with equal convenience be so ap therefore, expedient on that point also to entrust a discretion to the Provincial Govern ment to apply such law w'1th such restrictions or modi fications as would make it more suitable to the new reasoning Province before actually extending it This in spite immediately bring the Delhi Laws Act, four corners of the power of modification, within of the decision in Burah's case. therefore, pre pared to hold that question No. 1 is concluded by the decision of the Privy Council in Burah's case. in toto, it was, l am, that the the Provincial Government The matter does not, however, rest on the foregoing ground alone, for, assuming that the power of modifi took sec cation given to tion 7 of the ambit and I reach the same con -scope of conditional, the alternative ground of clusion as to its validity, on the lawful exercise of the inherent power of delegation of legislative power by the GovernorcGeneral in Council the Delhi Laws Act out of legislation 19Sl ln re The Delhi Law$ Act, 1912, etc. Das J. 1092 SUPREME COURT REPORTS [1951] if need be, In any case to withdraw the matter rectify the mistake or nullify judicial decisions make it clear to the Provnical Government. The principles deduci that the ble from the legislature, by enacting the Delhi Laws Act, did not efface itself or abdicate all power or destroy its own capacity or set up and arm with its own capacity a I discern no such new legislative power. intention in that the Provincial Government It is said the Act. might have decided questions of principle or policy, e.g., as regards prohibition, and extended the prohibi tion laws of some other Province to Delhi which might I do not think not have been suitable for Delhi at all. in practice, do any the Provinical Government did, such drastic thing. there was no need to feel perturbed by the possibility of the executive doing something wrong by mistake or even by design, for if legislature to put its it did it was easy enough for the the wrong foot down, into its doing or, own hand. This being the position, the only other thing to ascertain is whether the Governor-General in legislative capacity to enact Council in 1912 had the Delhi T-.aws Act. that sec I have already said the Act of 1861 substantially re-enacted tion 22 of section 43 of the Charter Act of 1833 and authorised the · Governor-General m Council for all persons, for all Courts, and· for all places imagine It any wider ordinate the same force and effect within British India as were given to an Act of Parliament. The only limitation was that the Governor-General in Council could not make any laws affecting the Act of 1861 itself and certain other Acts mentioned therein. The Delhi Laws Act was the "persons" of the "place" called certainly the Province of Delhi. Apart judicial from this decisions, as I apprehend them, quite clearly establish that the power of delegation is a component part of the content of legislative power and once this power of delegation is conceded, to it except there is no limit there remains no . what I have mentioned. Therefore, is difficult Its laws were given law-making power things whatsoever. to a legislature· to make law for ... • S.C.R. SUPREME COURT REPORTS 1093 • doubt in my mind that the Governor-General in Council acted well within its power to delegate to the Provin cial Government the power of selection of laws suitable for the new Province of Delhi and to extend the same restrictions and modifica that Province with such tions as the latter thought fit. I am, therefore, satisfied that in enacting section 7 of the Delhi Laws Act in 1912 the Governor-General in Council acted within the ambit of the legislative power then vested in him and no part of the section was ultra vires the powers of the Governor-General in Council. 19SI The Delhi Laws. ifct, 1912, etc. Das.J. India was then governed by Re Question 2: The Ajmer-Merwara (Extension of Laws) Act was enacted on December 31, 1947. The Constitution of Government of India Act, 1935, as adapted under the Indian Independence Act, 1947. Under section 7 of the Act of 1935 the executive authority of the Dominion was to be exercised on behalf of His Majesty by Governor-General. According to section 46 "Province" meant a Governor's Province. Under ' section 49' the executive authority of a Province w.as to be exercised on behalf of His Majesty by the Governor. Section 18 as adapted provided that the powers of the Dominion Legislature should be exercised by the Con stituent Assembly. Section 42 which was in Chapter IV of Part II gave legislative powers to the Governor General in certain circumstances. Section 60 provided that there should for everv Province be a Provincial Legislature consisting of His Majesty represented by the Governor and in some Provinces two Chambers and one in the others. Section 94 enumerated the Chief Commissioners' Provinces. Delhi and Ajmer-Merwara the section. Sections 99 and 100 distributed the Domi the Provincial Legislatures and nion Legislature and confined law-making powers within the appropriate Legislative Lists set out in the Seventh ( 4) of Schedule. Sub-section as- follows :- legislative powers between included within respective 100 was section "The Dominion Legislature has power to matters enumerated respect laws with to make ... : 1951 In re The Delhi l.Qws Act, 1912, etc. Das J, 1094 SUPREME COURT REPORTS [1951] Provincial Legislative List except for a Province or any part thereof." ,. Applying the definition of "Province" to this sub section, it meant that the Dominion Legislature was empowered to make laws for the Chief Commissioners' Provinces on all subjects in all the three Lists. Part IX dealt with the Judiciary. Section 200 provided there should be a Federal Court. Section 219 enumer the different High Courts. From what I have stated it is clear that in the Government of India Act, 1935, there was no "vesting" of powers in the Execu tive, Legislature or the Judiciary as in the American Constitution. Section 2 of the Ajmer-Merwara .(Extension of Laws) ,. Act, 1947, was as follows :- "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 enact~ent which is in force in any other Province at the date of such notification." that. I see no difficulty in treating this Act as a piece of legislation within the meaning of Burah' s conditional case on the same line of reasoning as I have employed in the case of section 7 of the Delhi Laws Act. The language of Lord Selborne may equally be applied to this Act mutatis mutandi!. think, alterna I also tively, the Ajmer-Merwara Act may also be supported as a valid delegation of legislative power by the legislature without effacing itself in the sense I have explained above. Dominion Legislature to make laws for the Chief Com missioners' Provinces were circumscribed by the entries residuary in the power of legislation which, under our present Constitu tion, Parliament has under entry 97 in the Union List and under article 248, nevertheless the power of the Dominion Legislature to make laws extended to all the three Lists. and, therefore, included a power of delega tion with respect to each of the subjects in each of the three Lists. Out of that the Dominion Legislature by It is true that the powers of three Lists and did not include the 19Sl In re The Delhi Law1 Act, 1912, etc. Das J. S.C.R. SUPREME COURT REPORTS 1095 to extend, by notification, section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, delegated to the Central Government to Ajmer-Merwara only the laws which were in force in any other Province at the date of such notification. The law made by the Dominion Legislature, of course, applied to every part of the Dominion and there was no question of the Central Government extending them to Ajmer-Merwara. In any case, the Dominion Legislature while enacting a law did actually apply In effect, therefore, by section 2 of the Ajmer-Merwara Act the Dominion Legislature delegated to the Central Govern ment legislative power with respect to the Provincial and Concurrent Lists. This was quite clearly within the ambit of its p<>wer and no part of that Act was ultra vires. its mind to it. the House of Re Question 3: Part C States (Laws) Act, 1950, was enacted on April 16, 1950, after our Constitution came into force. In order to answer this question we have to ascertain what the legislative power of our Parlia ment is under the Constitution. By article 53 the exe shall be "vested" in the cutive power of the Union President. Article 74 requires there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President. Under article 73(3) the Council of Ministers are to be collectively the People: Article 79 ·responsible requires that there shall be a Parliament for the Union consisting of the President and two Houses. The dis tribution of legislative powers between the Parliament and State Legislatures is done by articles 245 and 246. Under article 245 Parliament mav make laws for the whole or any part of India. The subject-matters with respect to which Parliament may make laws are enu the Seventh in the Union List set out merated to our Constitution. The State Legislature Schedule may make laws with respect to matters set out in the State List. Both Parliament and the State Legislature the Concurrent may also make laws with respect List. Entry 97 of the Union List as well as article 248 the residuary power of however give legislation " - 1096 SUPREME COURT REPORTS [1951] l9Sl In re The Dhe Law1 Act, 1912, :etc. Das I. Parliament to make laws with respect to any matter not enumerated in the Concurrent or State Lists. Chap ter IV of Part V deals with the Union Judiciary. Arti cle 124 provides that there shall be a Supreme Court of India. There are similar provisions with regard to the Executive, Legislature and State. Judiciary of In respect our Constitution It is to be noticed that it is only the executive autho rity that is "vested" in the President or the Governor as the case may be. There is no vesting of the lative or judicial power as in the American Constitu tion. the Canadian Constitution. Further, our pattern of the British Cabinet system Constitution has adopted and provided for the collective responsibility of Council of Ministers to the House of the People. There is thus a fusion of executive and the legislative power as in England. Although ours is a federation, we have the main features of the British nevertheless adopted Constitution. follows legislative the provisions of the Constitution. Again, The next thing to notice is that the power of both Parliament and the State Legislature to make laws is this Constitution." "subject Article 13(2) provides the Union or the State shall not make any law which takes away or abridges any of the fundamental rights guaranteed in Part III the exclusive demarca imply a field may possibly tion of limitation that Parliament cannot delegate lative powers to a State Legislature as such and vice versa, for that would run counrer to the Constitution itself. [See Attorney-General of Nova Scotia v. Attor ney-General of Canada(')] Whether the Parliament or the State Legislature has in any way overstepped the is certainly limits prescribed justiciable and in this matter the Court has supremacy over the legislature. But within their respective sphere, -0ur Parliament and the Stare Legislatures are supreme and the Court cannot question the wisdom or propriety respective competence. -0£ any law made within the Constitution (1) [19S0] 4 D.L.R. 369. -· In re The Deihl LaWa Atit, 1912.; etc. Dasi. S.C.R .. SUPREME COURT REPORTS 1007 On this question I adhere to what I said in Gopalan's case(1 ). through Part C of the First Schedule enumerates and. includes 10 States. Each of these States, under article 239, administered by the President through a Chief Com~ missioner or a Lieutenant-Governor or government of a neighbouring State. Article 240 em powers Parliament to create or continue local legisla ture or Council of Advisers for any of these States and article 241 empowers Parliament to constitute a High Court for any of these States. Under article 246(4) Parliament is given power to make laws with respect to any matter in the State List for any of these States. Under article 245, Parliament may make laws for the whole or any part of the territory of India. Therefore, Parliament ,has power to make laws for the Part C States with respect to any matter in any of the three Lists as well as any other matter in exercise of residuary legislative power. In other words, the legis lative power of Parliament with respect to the Part C legislative power the States is much wider the Government of Dominion Legislature had under India Act. It is in exercise of Parliament has enacted Part C States (Laws) Act, 1950, section 2 of which runs thus :- this wide power extend "The Central Government may, by notification in the official gazette, to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restric tions· 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 than a Central Act}, any corresponding (other which is for the time being applicable to that Part C State." .. The only difference between this section and section 7 of the Delhi Laws Act, 1912, or section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, is that {I) [1950] S.C.R. 88. 1951 Int~ The Delhi Laws A.ct, 1912, etc. Dasi. 1098 SUPREME COURT REPORTS [1951] the appropriate this section gives power to the Central Government while extending an Act of a Part A State to a Part C State, to p:ovide for the repeal or amendment of any -corresponding law which is in force in that Part C State. I do not think even this difference prevents this sec tion from being regarded as a piece of conditional legis lation within the meaning of Burah's case. The language of Lord Selborne fits in with the first part of section 2 of the Part C States (Laws) Act just as it did with section 8 of Act XXII of 1869 or section 7 of the Delhi Laws Act, 1912, or section 2 of the Ajmer Merwara (Extension of Law~) Act, 1947. That langu age may equally be applied to the latter part of sec tion 2 of the Part C States (Laws) Act, for it may be said with equal plausibility i.e., Parliament, has, as regards the second part lature, of the section, also applied its mind and decided that it is expedient to enable the Central Government not to make what law it pleases, but to apply, by notifica tion, to a Part C State the laws which were or may be in force in a Part A State and also that such having been enacted by a competent legislature will be such that it may be fit and proper to apply to any of these Part C States but as such a law may be incon sistent with a similar law alreadv in force to repeal or State it will be necess; ry and desirable last mentioned amend the more suitable law to be extended and applied to such State and that it is, therefore, expedient, on that point also to entrust a discretion to the Central Government in. f?rce. So pu~ . the to ;epeal or amend matter comes directly under the pnnc1ple of cond1uonal legislation in Burah' s case. Alternatively if section 2 of the Part C States (Laws) Act is for any reason outside the ambit of conditional legislation, the section may, nevertheless, be upheld as an instance of permissible delegation of -legislative power on grounds, namely, first t!iat a pow?'" of delegation is inherent in the law-makmg power itself and, secondly, that this delegation is within its legislative power as expressly given by Entry 97 of the Union List as well law so as established to enable S.C.R. SUPREME COURT REPORTS 1()1)9 as by article 248. To make a law with respect to the delegation of its legislative power may easily be regard in the Concurrent or ed as matter not enumerated State List. Parliament has not effaced itself. The law is within the legislative competency of Parliament and is, therdore, valid. 1951 In re The Delhi Laws Act, 1912, etc. Das.I. The territories statement the smallness of such immediate merger with learned Attorney-General to provide legislative Councils for relied on legislative practice in support of the validity Indian of these three enactments. He has relied on several appended instances of enactments President's case. During in India, of the expansion of the British possessions in outlaying parts of India small bits of were being constantly annexed by the British but on account of territories or the undesirability of established Provinces it was . not found to be practically possihle claves. Nor was it possible for the Governor-General in Council to enact laws for the day to day administra tion of these bits of territories or for all their needs. The practice, the Govemor therdore grew up for General in Council, by a simple legislation, to confer to extend to such power on territories such of the laws as were or might be in in other parts of Lieutenant-Governor which were siutable practice was certainly convenient, and even since Burah' s case does not appear to have been seriously questioned. I do not say that the argument has no merit, but in the view I have it necessary, taken and expre.»ed above, I do not find on the present occasion to base my opinion on this argument. territories under .considered the Lieutenant-Governor territories. Such Bdorc I conclude, it is necessary to take note of one argument based on article 353 and article 357. Those Articles are in Part XVIII of the Constitution and are emergency provisions. Article 362 empowers the Presi dent, if he is satisfied that a grave emergency of the specified kind exists, to make a proclamation dcclar~ 24-3 S. C. India/68 19$1 J~,. 7' It• IJellll Ltzw, A.ct, l~U, ere. 1100 SUPltEME COURT REPORTS (19511 to make to himself include power to any State as empowers breakdown the States the State government and such emttgency. While such proclamation is in opera· tion, the executive power of. the Union shall extend to giviDg clinictions to the manner in which the c:xecnuive power of. the State is to be exercised :md the power of Parliament to make laws with respect to any matter shall conferring powers and imposing duties or authorising the conferring of powers and the imposition of duties, the Union or officers and authorities of that matter. Artide 356 provides Union as respects constitutional machinerv bY the President to assume powers proclamation to declare powers of tht State Legislature shall be exercisable by or under the authority of Parliament. Article 357 declattS that hi tasc of such procla.mation it shall be competent for Parliament to c<>nfer on the President the power of the Statc Legislatilte to make a11thorise the Ptesident tO delegate the power so con f =cd to any other authority. The argument is :if legislative power contains within itself a power of delegation then why was express power of delegation provided for jn articles 353 and 357. The conclusion is sought to be drawn that grant of legislative power, without more, does not carry a power of delegation and that is why in these two Articles power of delega tion was given expressly. This argument docs not appear tQ me to be sound. In the first place, it should be noted the exercise of the powers of the State government the Union government or the State LtgislatuEe by or Parliao11111t. Th11refore it was considered necessary to expressly include the power of delegation. Further in view of the emergency or other stress of circum stances it may well have been expedient to expressly tx 11liundanti this power of delgation provide cafltela. I am not prepared to say that the provisions of these two Articles can poMibly negative the power cauteld. I am not prepared to say that the provisions of delegation of lcglsl:!tive power which is incidental and ancillary to the power of legislation and which that these two Articles were providing laws and 1951 Ill re lM8 .kt, JPU. 77111 lJdll etc. DOii. Boae I. ... s.c.R. SUPREME COURT REPORTS 1101 is, up to a point, oonccdcd, even in the land of separa tion of powers. The result, therefore, is that I answer the questions as follows :- Question 1: Section 7 of the Delhi ~s Aa. 19~2, was valid and no part thereof was ultra vms the legis lature that passed it. Question 2 : Ajmer-Mcrwara {Extension of Laws) Act, 1947, was valid and no ~ thereof . was ultra tlires the legislature that passed it. Questit>n 3: Section 2 of the Part C States (laws) Act, 1950, is valid and no part thcr~f is Hltra tlires the Parliament. BOSE J.-1 will deal with the Delhi Laws Act of 1912 first. The questiOn is whether $CCtion 7, . or any of. its provisions, is #ltra that, it will be necessary to forget the present Constitution . of to the year 1912 India and project our minds back when India was still under British rule. "'1-t1. To dettrmiuc Delhi was originally part of the province of Punjab but it was constituted into a separate province under a Chief Commissioner on the 17th September 1912 When that was done legislation was required to deter mine what laws were to apply in· this new province. Instead of starting afresh by bringing in a whole series of new Acts, the Delhi Laws Act wa.S enacted. Under section 2 the entire body of law which was in fume in this area just before it was taken out of the Punjab was continued in force and under section 7 the Pro vincial Government of the new province, that is to say, the executive authority, was authorised to extend to this area, by notification, with or without restric tions or modifications, any enactment in force in any part of British India at the date of the notification. It is not disputed that this Act was passed by a legisla tions or modifications, any, enactment in force in any it is contended by those impugning the Act that that legislature had no power to confer on the Provincial Government, which is not a legislative body, what 1951 The De/hi LIN1 Act, 1912, etc. Boie J. 1102 SUPREME COURT REPORTS [1951] is legislative power, namely authority to intro essence duce into the province new laws which were not there before. • authority . its legislative that year that was 1912. the Charter Act of 1833. The legislature which enacted the Delhi Laws Act 1912 was the Governor legislative section of General in Council or, what for convenience may be in Legislative Council. termed, the Governor-General This body was constituted by an Act of the British Its Parliament, originally composition and powers were altered from time, as, for example, by the Charter Act of 1853 and the Indian Councils Acts of 1861, 1892 and 1909, but essentially powers In India were derived from section 22 of the Indian Councils the scope and Act of 1861. That being the case, ambit of these powers are naturally to be gathered that does not that Act, but unfortunately help us here because these powers were of necessity conferred in general question is what do the words mean. It was conceded that terms em powered the Governor Gcncral in Legislative Council, to confer on any other authority the wide powers embodied in section 7 of the Delhi Laws Act of 1912, but it was contended that the right to do that is inherent in the power to legis late and inasmuch as the Governor-General in Legisla tive Council was empowered to legislate for, among other areas, the Province of Delhi, it had the right to do what it did in the Delhi laws Act was as part of its normal legislative functions. is no provision which terms and the whole legislative body in express this new That brings us to the question, of what does the legislative power in a S~ate, or a portion of a State, consist? There is a great divergence of opinion about this and we were taken elaborately through the views jurists in of many eminent Great Britain, Canada, Australia, the United States of America and the q>ntinent of Europe. I do not think it will be profitable them at length because in the end it all comes to this. The judicial authorities and to examine India, f s.c.R~ SUPREME COURT REPORTS 1103 indeed often from mind concept of legislative power varies in different countries to mind in the same country: There is no universally accepted definition. We have therefore to reach our own conclusions and choose between them. But in doing that I conceive it to be proper to lean towards what I may British point of view for the following reasons. 1951 Tiie De/Iii Lows Act, 1912, ere. Bose J. to examine time was governed by law. ·I do not of course mean bv We are concerned here, at the source, with an Act of the British Parliament and with a country which the British. The legislative authority in India was derived from Britain. in Legislative Council was a The Governor-General creation of the British Parliament. When, therefore, Parliament endowed it with the power to legislate, we have necessarily that Parliament to determine wh:it intended to do and what matters that body considered lay within the ambit of legislative power. The only way · to do that is to examine the usage and practice of the British Parliament in similar cases · and how its Acts "in this behalf were interpreted by British Courts of that we are the British Parliament because everyone concedes that it.s powers ate legislatively absolute and that no court of law can question anything it docs : I mean examine the nature of the powers conferred by it upon other legislature, tin Legislative Council, the Governor-General which have been created from time by the British Parliament the British in various parts of Empire. In doing this I wish to avoid, as far as I can, the use of words and phrases which have acquired technical significance but about whose meaning no two minds se:m to agree. I have in mind words such as authority, sovereign, abdication, delegated separation of powers and so forth. think it is necessary to enter upon tl\e wide field of enquiry which an analysis of in my view, what we have to determine .here lies within a much narrower compass. these terms would entail because, the power of I do not ~ Projecting ourselves back to the position in 1912 we will have to consider the position as British Courts 1951 In re The Delhi Laws Act, 1912, etc. Bose J. 1104 SUPREME COURT REPORTS (1951] would have done and in particular the Judicial Com mittee of the Privy Co:mciL In Croft v. Dunphy(') the Judicial Committee said, in a Canadian case :- in bestowing the Imperial Parliament "In these circumstances, it is difficult to conceive plenary powers on the Dominion Parliament to customs should have withheld from it the relation power to enact provisions similar which had long been an integral part of 1lhe Imperial customs legislation and which presumably were recog nised as necessary to its eflicacy." in scope to legislate That, to my mind, justifies the approach that in construing section 22 of the Indian Councils Act of 1861 and the subsequent Acts of 1892 and 1909, we must take into consideration the fact that the British Par- liament had present to its mind a number of judicial pronouncements regarding the scope and ambit of the legislative. authority conferred ~pon legislatures which were the creation of the Imperial Parliament. But so far as the Delhi Laws Act is concerned, one case will be enough, namely The Queen v. Burah(2). several observations . That was a decision of the Judicial Committee given in the year 1878. The case came from India. Their Lorsdhips made a gene ral and far-reaching nature, but far the present purpose I will confine myself to a somewhat narrower point which, in my opinion, is more germane to the present case. Their Lordships were concerned with an Act of the Governor-General year 1869 which was being impugned. At that date a slice of territory known as the Khasi Hills was govern- ed by Act VI of 1835 and Bengal Regulation X of 1822; so also another piece of territory known as the Garo Hills. Section 3 of the impugned Act repealed these laws (except on matters which do not concern us) so far as they related to the Khasi Hills and section 4 excluded the Garo Hills from their operation. Section 8 enacted that :- in Legislative Council of " "The said Lieutenant-Governor (Bengal) may from time to lime, by notification in the Calcutta Gazette, 01 [1933] A.C.156 at 161. (2) SI.A. 178. " • •

#1105. S.C.R. SUPREME COURT REPORTS extend to the said territory (Garo Hills) any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Govemt>r General or of the said Lieutenant-Governor, for malting · laws and regulations, and may on making such exten sion direct by whom any powers or duties incident to the provisions so extended shall be exercised or per formed, and make any order which he shall deem requisite for girrying such provisions into operation." (page 180). 19S1 Jn re The Delhi Laws Act, 1912, etc. Bose/. Section 9 empowered the Lieutenant-Governor to do .the same thing for the Khasi Hills by applying section 8 (among others) to the Khasi Hills (page 180). ·These provisions were attacked as ultra vires. See page 190 where their Lordships say :- "The next question is whether the whole Act of 1869 is void." Two grounds of attack were; (1) that this was not legislation but a delegation. of legislative power (page 192) and (2) that the Govenior-General in Legislative Council was here attempting to create a (page 194). Both contensions were refuted, the first on the ground that the Indian Legis lature was in no sense an agent or delegate of the British Parliament and the second, because this did not have the effect of creating a new legis1ative body. legislature • At the moment I wish to concentrate attention on the second point. This is how the Judicial Committee dealt. with it. Their Lordships said, argument about the creation of a new legislature :_ refuting "Nothing of that kind has, their Lordships opinion, been done or. attempted in the present case. What has been done is this. The Governor-General in Council has determined, in the due and ordinary course of legislation to remove a particular district from the -jurisdiction of the ordinary Courts and offices, and to place it under new ~rts and offices, to be appoint ed by and responsible to the Lieutenant-Governor of Bengal; leaving it to the Lieutenant-Governor to say take place; and at what rhange shall 1951 In re Delhi Laws Act, 1912, etc. Bose J. 1106 SUPREME COURT REPORTS [1951] also enabling him, not to make what laws he pleases for that or any other district, . but to apply by public nqtilication t.o that district any law, or part of a law, which either already was, or from time to time might be, 'in the other in force, by proper, legislative authority territories subject to his government.' The legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant-Governor." the Lietenant-Governor; and also, 'that the laws, Now I do not intend, at the moment, to enquire into the juristic principles on which that decision is based because in my opinion, it is direct authority for this, namely, that a leglsative body which I shall call A, created by the British Parliament to enact laws for an area X+Y+Z, has authority following things:- to do ,. ( 1) to repeal all laws existing in a particular area X which has been carved out of the whole X+Y+Z jurisdiction; to A's and which is subject legislative (2) to authorise a purely executive authority B who is in subordinate executive and legislative control of Y and who is now placed in executive charge of X as well, to pick and choose for X any law which are then in existence in Y or Z, whether made by legisla ture A or by a subordinate legislature in Y for Y, and apply them either in whole or in part, as he pleases to X; further, (3) to audiorise B to pick and apply, either in whole or in part, any law ttJhich might hereafter be made either by legislature A for Y or Z. or by another subordinate legislature which is . not A but which is under B for Y. 19Sl 111 re The D Lawa Act, 1912, etc. Bose J. S.C.R. SUPREME COURT REPORTS 1107 • -~ ,,. Now the application of that to the present case (the Delhi Laws Act) is this. The legislature which enacted the Delhi Laws Act was the same legislature as .the , one in Burah's case, though of course its composition In Burah' s case, the powers were derived was different. from the Acts of 1833, 1853 and 1861. In the present case, the powers are derived from the same series of Acts coupled with those of 1892 and 19()<). The later legislarure and Acts altered effected certain alterations in the mode of its legisla tion but its overall power to leigslate was based on section 22 of the Imperial Act of 1861, as in Burah' s case. Therefore, in my illustration, A remains A but B becomes the new the Provincial Government of province of Delhi and X becomes the area embraced by the new province. Y +z are the remaining provinces . having none. Section 7 of! the Delhi Laws Act enacted by legislature A empowers an executive authority B in charge of area X- the composition of (1) to apply to X, with or without restrictions or law then in existence made by A modifications, any for Y or Z; • (2) similarly to apply to X any law• made by a Provincial Legislature in Y for Y; (3) in the sanie way to apply to X any law which might hereafter be made by A for either Y or Z; and (4) tp apply, as before, to X any law which might in Y hereafter be made by a Provincial Legislature not in charge of B, for Y. It will be seen that the only difference between this and Burah's case lies in items (2) and (4). The Privy Council upheld the legislation which empowered B to choose for X any laws made by A. Therefore, to that extent at any rate section 7 would have t.o be upheld and the qm:stion in every case would be whether Provincial Government had selected a Central or a Provincial law. But the Privy Council went further and permitr.cd B to c.hoose a Provinci"al law as well, 1951 The De/Al Law1 -«ct, 1912, etc. [1951} SUPREME COURT REPORTS 1108 though the area of selection was restricted to Provin- laws in territories of which B was Lieutenant- Governor and which were under his executive and legislative control. In the Delhi case, the field of select- tion is wider and extends to provinces which are not in charge of B. Does that make any difference in prin- I cannot see that it does so as A is concerned. ciple? It is true the Judicial Committee said that the laws the Lieutenant-Governor was entitled to apply were "laws which were or might be in force in other the same Government." Reading territories subiect that in the light of section 8 from which the words were culled, I think that means other territories under the Lieutenant-Governor the Governor-General), (not and of course the Lieutenant-Governor's area of choice was restricted in that way in that case but that was because such a limitation was placed in the Act of 1869 which applied there. There is no similar limitation in . the Delhi Laws Act of 1912. Whatever the true ground of decision in Bur ah' s case may be the fact remains that the Privy Council up held a law made by Legislature A empowering an the same relation executive authority B, which bears to A as the. Provincial Government of Delhi, to select and apply to an area X within the legislative juris d.iction of A, laws made by a Provincial Legislature in another part of India, also legislatively under A. That is the exact position here. The only other point of difference between ·this case the Lieutenant-Governor and Burah' s case was permitted to select "any law, or any portion of any law" whereas, here, the Provincial Government is empowered to extend the specified enactments "with such restrictions and modifications" as lit. I do not think this makes any difference of substance. Consequently, placing myself the position of a British Court of the year 1912 bound by decisions of the Privy Council, I would hold on this narrow ground that section 7 of the Delhi Laws Act of 1912 is intra I can hardly think that the Privy Council bound vires. by its own precedents would have decided athtrwi&e. it thinks ~ " ,.. r ~ ~ 1951 In re The Delhi · Law1 Act, 1912., etc. Bose J. S.C.R. SUPREME COURT REPORTS 1109 the power I turn next to the Ajmer-Merwara (Extension of Laws) Act, 1947. Section 2 is the portion impugned. It is worded much the same as the other, only in thi~ case the Central Government (against an executive body) to introduce laws (with has been given restrictions and modifications) instead of the Provin: cial. Government. Here also, the laws which can be the Central introduced are not only Legislature but also those enacted by Provincial Legis latures, and the laws which can be selected are both those in being at, the date of the Act and those which may be made . in the future. But by this time character of the Indian Legislature had undergone a radical change and the question is whether that made any difference. I do not think it did. those made by 1861 limits, For .Centre. But the Centre and The Government of India Act, 1935, introduced a federal element into the government of the country and gave it a constitution. It divided the ambit of · legislative authority and created legislative spheres of the Provinces -and interest between gave residuary power except for that, it did not alter the basic concept of the legis~ lative power. Under section 22 of the Indian Councils Act of in Legislative the Governor-General Council was empowered to "make laws" for all persons and things within British India though within certain it could not make instance, prescribed any law altering o:: affecting an Act of the Imperial Parliament unless expressly authorised but, as we hav~ seen, such power as was conferred included the power to do what was done under the Delhi Laws Act. The Government of India Act of 1915 which consolidated the previous Acts touching the government of the coun: try, made no alteration regarding this though Parlia~ In 1935, des.: ment had The Queen v. Burah before it. pite the division of power between the Centre and the Provinces, the essential concept of the power was not If anything, altered, only its method of functioning. the sphere of authority was enlarged because the Feder ral Legislature was empowered to make law having extra-territorial application, a right which the lhdiaq 1951 The Dellll La.is Act, 1911, etc. Bose J. 1110 SUPREME COURT REPORTS [1951] is permissible. They say nothing about Legislature did not up till then possess. Section 99 authorised the Federal Legislature to "make laws" for the whole or any part of British India subject, how the Act. The other ever, to the other provisions of provisions merely divided the subjects on which legis lation essential elements which go to make up the legislative the same as power. The language, it will be seen, the language in the Government of India Act of 1915. But, to my mind, the really fundamental fact we are here still dealing with an Ace of the British Parliament enacting a law for India.' It is reasonable to conclude essentials of legislative power had not alrered, parti cularly when we find it employing the same language as in 1861 and· in 1915. that Parliament's concept of Next comes the Indian Independence Act of 1947. That converted India into a Dominion and conferred even wider powers upon its legislatures. The limita legislation which section 108 of the Act of tions on 1935 imposed were removed. But, so far as the essen tial content of the legislative power was concerned, the poo; ition remained the same and the same language was "may employed namely, make laws etc." No fresh limitation on its law-making powers was imposed. the Dominion Legislature Now here again, though India was given independ ence and was given the right to frame a constitution for itself until it did so the old constitution which was framed by the British Parliament remainCd. The posi in Canada. tion at this juncture is much. as it was See the observations of Viscowit Haldane in Att<>rney General the Commonwealth of Australia v. The Colonial Sugar Refining Company Limited(1). There fore, at bottom, we are still construing an Act of the British Parliament. We are looking at these legislatures through British eyes. We still have to consider what answer the Privy Council would have given regarding the validity of this law in the year In the face of The Queen 1947 when it was enacted. (1) [1914] A.C. 237 at 2S3. 1951 In re The Delhi Lllw1kt,1912. etc. Bose J. • I , "" S.C.R. SUPREME COURT REPORTS 1111 though there was a this kind of litigation about v. Burah I have no doubt in my mind that this legis lation would have been upheld. I need not therefore enquire further because, volwne of legislation subsequent to that date, no single decision of the Judi cia1 Committee has thrown any doubt upon the sound ness of Burah' s case. On the contrary, the decision has been relied on in case after case from the Domi nions and the widest amplitude of its terms has been endorsed. Therefore, I would uphold the validity of this Act also. But I wish to emphasise that I do so on the same narrow ground as before and that I have not attempted to define what the legislative power consists I am only concerned in these two cases . with the of. narrow question whether these two Acts are intra vires. that they are in British eyes because, My answer legislative power may or may not whatever else the contain, the Privy Council has decided that this type of Act is valid and that when the British Parliament the proper governance creates another of a country it envisages being within its competence. That is enough in these two cases. this type of legislation legislature for • The third Act we are asked to examine is the Part C States (Laws) Act, 1950. Section 2 is the provision which has been called in question. The first part of the section follows the now familiar pattern. The Central Government is given power to extend by notification any Act which is in force in a Part A State at to any three) "with such restrictions Part C State and modifications as is also given to the Central Government, when extending any such enactment, to make provision in it. the . date of (except thinks fif." Power the notification "for repeal or amendment of ~y corres ponding law (other than a Central Act) which is for the time being applicable to that Part C State." This latter portion goes a good deal further than in the year 1950 before. But after the Indian Constitution came into force. W c arc that apart. This was 1951 la re TA. Dtl~I Law1 Act, 19Jl, ere. BDle J. • r 1112 SUPREME COURT .REPORTS [1951] this A£t was therefore here treading on virgin soil The legislature the Indian Parliament, a which passtd the British Parliament with its body created, not by British concept of legislative power, but by the Con stituent ASJCmbly of India which drew not only on the British model but culled from all the world that which in its wisdom it considered best fitted for country and after adding bits of its owa, produced an amalgam which adheres to non of its models but is something fresh and in that sense uiliquc. We can, on analysis, find traces in it of the British model, of the American, the Canadian, the Australian and the J apa therefore that it ia useless to try nesc. and look at this through the eyes of another country or of their Courts. We have to try and discover from the Constitution iolelf what the concept of legislative the Constituent Assembly which conferred it. When that body created an Indian Patliammt for the first time and endowed lift, what did they think they were doing? it with What concept oi kgislative power had they in mind? To answer this it will be necessary to envisage various facts which were at their disposal at that time. It seems to me the eyes of looked First and focemost. they had the British model in view where Parliament is supreme in the sense that it <:an do what it pleases and no Court of law can sit in judgment over its Acts. That model it rejected introducing a federation and dividing the ambit of legislative authority. funda,. It rejected by enacting mental laws. It rejected by dra~ a distinction bet ween the exercise of constituent {>owers and ordinary rejected by expressly envisag legislative activity. ing the incompetency of Parliament to act in certain cases as in article 249(3). It rejected by fashioning an elaborate Constitution within the ambit of which function. We have therefore alone Parliament could next to consider what material the Constituent Assem bly had types of legislatures. to draw on regat'ding restricted It On the one hand, they had bdore them the flexible the widest devolution of British concept favouring • 1951 In re 111B Deihl Law1 Act, 1912.. etc. &ml. s.c.R. SUPREME COURT REPORTS 1113 authority short of creating a new I say short of creating a new. legislature because the Privy Council said in The Queen v. Burah(1) at page 194 that- legislature. " the Governor-General in Council could not by any form of enactment create in India, and arm with general legislative authority, a new legislative power, not created or authorised by the Councils Act." This was repeated in other cases which I do not intend to examine because I am now searching for principles and not considering whether I am bound by this authority or that. I am treading on virgin soil. As against this, they had before them the American model with its rigid doctrine of the separation of powers; and in between they had the Canadian and Australian models which were neither wholly one thing nor the other but something in between. Now impossible to discover consideration. in endeavouring the COnstitucnt Assembly in all to carry on thought Constitution what of this grave problem, I consider it proper to take First, following matters free countries it has been · acknowledged the government of a modern . State with its infinite complexities and ramifications without a large devolution of power and delegation of authority. It is needless to cite authority. The proposition the practical application of that principle has been evident throogh the years both in India and in other parts of the British Empire and in England third place, even in America. Judges ha~e had- to veer away the rigidity of their earlier doctrine and devise ways and means for softening its rigour aq.d have not always been able, under a barrage of words, to disguise the in fact effecting a fact that they are in truth and the force of departure because compelled circumstances. is self-evident. Next, to do by itself. In I next consider it relevant to take into considera for dose country has fa.ct (1) SI. A. 178. 1951 111 .,, 7lU D<lltl L4Ws Act• 1912, etc. 1114 SUPREME COURT REPORTS [1951] a· governed ,century the present Constitution along British is very lines and like that of the year 1935 where it deals with the powers of legislation. The concept of those powers is therefore something to which the peoples of India and those who govern nearly a hundred years. It is consequently something whieh must have been thought good, otherwise it would have been expressly negatived in -the Constitution have been othe( things which were not considered proper in this country. them have been accustomed As against this, we have the fact that Parliament has not been left free except when it exercises consti tuent powers. Fetters have been placed upon it under things have been made the Constitution. Certain fundamental. Certain guarantees have been given. The people of India have been given a gift of the free way of life. The country has been constituted into a Sovereign Democratic Republic. As, , however, was inevitable, fetters have been placed upon the freedoms. That had to be because there is no such thing as abso If every man did just as he liked there lute liberty. would be ehaos; also the safety of the State would be the fetters are to be found imperilled. In some cases, itself. But in others ready forged in the , Constitution the Constitution has merdy envisaged the possibility that further restrictions may be necessary in the future and has entrusted to Parliament that duty of determin limits when, were and how, and ing within fixed I am of opinion that in these cases Par their extent. liament is not free to delegate its authority. It caiinot leave to another something whieh has been entrusted to its own particular care. The people of India arc entitled in that particular class of case to the fruits of Parliament's own mature deliberations, to its patriotism and to its collective wisdom. I would draw the distinc tion in this way. Where Parliament has been left free to legislate in a general way on a particular topic, I consider it can legislate in the manner which has been a common place in this land over the years. I do not rules. Each think it desirable to lay down general 1951 In re The Delhi Laws Act. 1912 etc. Bose/. S.C.R. SUPREME COURT REPORTS 1115 case will have to be considered on its own facts as it arises. The only limitation is that what is done. must be legislation. But when Parliament has been directe? to do a particular and specific thing under the Consti the Chapter on F.unda tution, and particularly under mental Rights, as for example, fix a maximum period of detention under article 22 (7) (b), that sort of duty cannot, in my opinion, be delegated. I am not prepared in this case to go any further than that in either direction. My reasons for so holding are these. Article 245(1) of the Constitution states :- "Subject · to this Constitution, the provisions of PaFliament may make laws for 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 State." its ambit is made judgment, only be altered This is word for word the same as section 99(1) of the Government of India Act, 1935, except for changes consequential on the altered status of turn to other portions of the country. But when we Constitution we find certain things which are new. There is, for example, the Chapter on Fundamental Rights. Now when a fundamental indicated except the extent it may be altered in ·a particular way, it can, that way and no other. To hold otherwise would be to derogate from the solemnity of the guarantee and place it on a par with any other law. was not the intention. The whole point of the guaran tees regarding fundamental rights was to afford relief against arbitrary executive action restraining a man's _ liberties; and it is no guarantee against an improper exercise of power by A to say that A shall not detain you unless he wants to and that he shall have no right to detain you beyond a specified period unless he so that A shall not desires. It i; a guarantee detain you for three months unless the 25-3 S. C. India{68 I am clear to say longer .. ~ ¥ -.I 19$1 Jn re The Delhi Lows Act. 1912 /JQsel. 1116 SUPREME COURT REPORTS [1951] chosen representatives of the people after the delibera tion think it proper to fix a longer period. But when that is done there can be no delegation to A or indeed to any other. I am clear that a departure was intended from the normal methods of legislation (normal, that is to say, to this country) in this class of case. This is particularly so when we fine! express provision set ting out the incompetency of Parliament to make certain laws as in article 249(3) and when we find express provision for delegation of authority in particular cases. I have in mind, for example, article 357. Article 356 envisages the possibility of failure of constitutional machinery in a State. In that event the President is empowered to "declare that the powers of the legislature of the Stace shall be exercisable by or under the authority of Parliament." When that is done, article 357 ( l )(a) empowers Parliament to confer on the President the power of the State to make laws and to authorised the President to delegate the powers so conferred to any other authority he chooses this power cannot be delegated and that only Parliament can confer It cannot leave the decision to somebody else and autho rise him to do it though that would have been the case had it not been for this express authorising. the requisite authority on the Presiden• legislature of I am clear to specify. ' This article was referred to in the arguments and it was contended that the Constitution does not envisage is expressly to delegate except when the right It was argued that if the right to delegate auliorised. authority was inherent in the right to legislate, then this part of article 357 would be otiose. Therefore, the fact that the Constitution expressly authorises delega tion in particular cases indicates that no general power of delegation exists. There is force in this but, with respect, I do not think it is sound. Article 357 ( l )(a) is not dealing with what the Privy Council has decided is not a delegation of legislative power at all . but is that which the Privy Council held an empowering Indian Legislature could not do before the Constitution, it with namely, create a new legislature and arm 19$1 l11re The Delhi Lowa Act, 1912, etc. Bon I. S.C.R. SUPREME COURT REPORTS 1117 I do not seek to enter the general legislative authority. lists and joust with those who dispute the true mean ing of "delegation" and of "essential legislative power" because it is enough for me to say that whatever other authorities . may have thought, the Privy Council held that in Burah's case there was no delegation of the legislative power but an ordinary and normal exercise of it. They also held that the creation of a new legis lature was beyond the competence of the Indian Legis I am clear that in enacting lature as then constituted. article 357 ( 1) (a) the Constituent Assembly was of opinion that Parliament was not to have an inherent right to 'create a new legislature. It could only do that when expressly empowered. But that in itself does not the Constituent Assembly was import also of' opinion that Parliament would have no power to do that which had been accepted as the normal func tion of an Indian legislature ever since The Queen v. Burah in 1878. That particular concept of legislative power has not been altered or abrogated by the Consti tution except in particular cases. I prefer therefore to hold that that which The Queen v. Burah authorised, whatever you may choose to call it, was not abrogated except in special cases. I so hold for another reason as well namely, that to • decide otherwise would make the government of India an exceedingly difficult matter and would put back the hands of the clock. I prefer therefore to hold-and that has the logic of history behind it-that the con cept of legislative power which had hitherto been accepted in India continued to hold goods but that this limitation was placed upon the Constitution, the Constitution employers namely that wherever Parliament to do a particular legislating generally on a particular topic, there can be no delegation. .Parliament must itself act. thing as oppq; ed it by But even that is not the full picture because it has been held from the earliest times, even when viewed through purely British eyes, that a legislature created by the British Parliament (1) cannot act beyond the the extent of which must be ambit of its pcwers 1951 IJi,. TA• D•lhi Law1 Act, 1911, ~tc·· Bou/. 1118 SUPREME COURT REPORTS (1951] (2) the document which brings gathered it into it cannot create a new legislature for the purpose of legislating generally and it cannot to be gathered from abdicate. These limitations are a series of cases to which I shall presently refer. I am of opinion that the same limitations exist in the case that, unlike British Parliament,. is not free to do as it likes; it is bound by the Constitntion. the Indian Parliament because (3) following the prescribed the concept of sovereignty ' varies. the Constitution and confer what powers I do not here wish to enter into questions of sover It eignty because may be that looked at from one point of view Parlia ment is fully sovereign because it can by the requisite procedure majority pleases upon itself. But viewed from another it is evident that. the framers of the Constitution elected to put into the Constiution restrictions on change and we have in each case to interpret a compact made between the Union and the States and the people of language of Viscount Haldane in India. To use the Attm-ney-General for the Commonwealth of Australia v. Colonial Sugar Refining Company Ltd.(') :- "Their Lordships are called upon to interpret the legislative compact made between the Commonwealtil- and the States ....... .It is clear that any change in the existing distribution of powers has been safeguarded in such a fashion that on a point such as that before the Board the Commonwealth Parliament could not legislate so as to alter that distribution merely of its own motion." To enquire whether this imports full sovereignty is to my mind mere playing with words. I do not doubt · that Parliament has powers of amendment but equally I am clear that until it chooses to alter the Constitu tion it is bound by it and by the implications which follow therefrom. What you choose to label a body, however august, haVing powers of this kind and hedged in by sw:h limitations, hardly matters. The only (I) [1914) A.C. 237 at 256. t .. 19'1 Tiie th/Ill IAw.r ~ct, lil12. etc. Bo#J. S.C,R. SUPREME COURT REPORTS 1119 question is what is the ambit of those powers and what the extent of the limitations. So far as the British concept goes, the following limitations UP9Jl a legislature which is the creation of a. written. instrument and which .is bound. by its t~ whether an Act of the British Parliament ·or otherwise, have been indicated from time to time. The earliest pronouncement is one of 1871, The Queen v. Burah(1) to which I . have already :r;eferred, That case set out the three limitations which I have just enumerated. In addition, their Lordships said at page 194 that. the in that powers conferred on the Lieutenant-Governor case were not to make what laws he pleased but to apply to the new territory any law which already was, or might · frollJ. time to time be, in .. force, by proper legislative authority, in the other subject to his government. territories The same principle was repeated in· 1882 in Rusrell v~ T h,e Queen (2), a case from Cariada. The Privy Council said at page 835 :- "The provisions that certain parts Of the Act sball . come into operation only on the ·petition Of a majority of electors does not confer on these persons power to the condition · 3nd legislate. Parliament itself enacts everything which is to follow upon .the condition being fulfilled." .., In 1883 the Judicial Committee described this sort (See Hodge of authority as "ancillary to legislation~" v. The Queen( 3 ) a case from Canada). In. 1919, In re The Initiati.ve and Referendum Act(~), .another C'.anadian case, the Judicial Committee cated that. a legislature of the ··type we are considering cannot "create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence." ,,. In 1944 there was another case from India, King. Emperor v. Benoarilal Sarmae). Their · Lordships (1) 51.A. 178. (2) 7 App. Cas. 829. (3) 9 App. Cas. 117 at 132. (4) [1919) A.~ 93S at 94S. (5) 72 I.A. 57. 1951 In re The Deihl Law1Act,1912, etc. Boie J. 1120 SUPREME COURT REPORTS [1951) again stated that the Indian Legislature cannot its duty of legislation to any other authority. transfer in Council that case) acts under Two yeats later ( 1946) there was another case from Canada, Co-operative Committee on /apanese Cana dians v. Attorney-General for Canada('). Their Lord ships said there that when an executive authority (the Governor authority conferred on him by this kind of legislature, he has no independent status as a law-making body and though his orders are "law" they are in reality laws made by Parliament' at the date of their promul gation. Their Lordships stressed the fact that Parlia ment (the Canadian Parliament in that case) only legislative authority for the Dominion as a whole." That, in my opinion, holds good for India too. "is to British precedents and I have confined myself the Privy Council. have not further travelled I have done this of set purpose partly because British Courts have on the whole gone furthet than any other in countenancing this kind of legislation, but mainly because I am at the moment concerned with the concept of country has been familiar for a hundred years prior to the present Constitution. That, most powerful and important factor on which our Con stitution makers , had to ponder-whether and how far a thing which had been planted and taken deep root in the soil should be uprooted, pruned, restrained or left alone. legislative power with which to mind, was An anxious scrutiny of all the many authorities and " books which were referred to in the arguments, and of the decisions which I have analysed here, leads me to the conclusion that it is difficult to deduce any logical In almost every case the deci principle from sion has been ad hoc and in order to meet the exigencies of the case then before them, judges have placed own meaning on words and phrases which might other- '° wise have embodied a principle of general application I have I possibly endeavoured, as far as therefore them. (1) [1947] A.C. 87 at 107. 1951 In re The Delhi Law11Act,1912. etc. Bose J. S.C.R. SUPREME COUR'I' REPORTS 1121 Indian Parliament can could, to avoid the use of these disputable terms and have preferred to accept the· legacy of the past and in a practical way. My con deal with this question legislate clusion alone the lines of The Queen v. Burah, 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 legislative control of Parliament, whether laws were enacted by Parliament or by a State Legis lature set up by the Constitution. That has been the the past. It has weighty reasons of a practice practical nature to support it and it does not seem to have been abrogated by the Constitution. But I also consider that delegation of this kind can not proceed beyond that and that it cannot extend to the repealing or altering in essential particulars of laws which are already in force in the area in question. That is a matter which Parliament alone can handle. the case, it not been latter portion of three Acts ultra vires. I see no reason for extending the scope of legislative delegation beyond the confines which have been hallowed for so long. Had it not been for the fact that this sort of practice was blessed by the Privy Council as far back as 1878 and has been endorsed in a series of decisions ever since, and had the practical necessities of I would have far as held all' is concerned, third Act no case was cited in which the right to repeal existing laws of the land and substitute others for them has been upheld. That was tried in a South African case, Sir John Gorden Sprigg v. Sigcau(1), but the Privy Council held it could not be done, not · indeed on any ground which is material here but tkt is only case I know where the attempt was made and right litigated. It is one thing to fill a void or partial vacuum. Quite another enacted by a competent authority. It is bad enough to my mind to hold that the first is not a delegation throw out existing But, so (1) [1897] A. C. 238. 1951 In"' The Delhi Laws Act, 1912, etc. Bose J. 1122 SUPREME COURT REPORTS [1951] of legislative power. But as that has been held by an authority which it is impossible now to question so far as the past is concerned, I bow to its wisdom. But as to the future, I feel that a body which has been en trusted with the powers of legislation should legislate the decision of Important matters of a.~d not leave principle to other minds. I am t.herefore of opinion that the power upheld by The Queen v. Burah does not extend as far as the latter portion of section 2 of the Part C States carry it. (Laws) Act of 1950 endeavours t I am also clear. that when Parliament has been en trusted by the Constitution with the right to enact a particular kind of legislation, as opposed to legislating generally on a particular tppic, there can be delegation. I r~ that this docs not draw an exact line and that each case will have to be decided ori its own facts I also realise that this is not as and when it arises. strictly logical. But that is because I have to make what I can of a legacy from the past which is based more on practical necessity than on abstract logic. I find myself obliged to steer a middle course between two conllicting principles which have been handed down from the past and which have been woven into the Indian concept of legislative power prior to the present Constitution. One permits very wide powers of delegation for sound and practical reasons despite the attempts made to disguise that fact by placing a like "delegat.ion" "legisla special meaning on words tion", "sovereignty" "abdication". The other holds that new legislative bodies cannOt: be set up by fet tered legislatures like ours (I mean of course when are not exercising constituent powers) and, as a corollary to that. that essentially law-making powers cannot be transferred. Both principles are sound, and there arc weighty Privy Council has been at pains to do ever since 1878. But I find it diflicult to keep them side by side and .at the same I have therefore endeavoured to give dfect to both in a practical way, retaining both, as time be strictly reasons for indeed logical. 1951 In re The Delhi Laws A.ct, 1912, etc. Bose J. S.C.lt SUPREME COURT REPORTS 1123 that, there. the only to my mind, thought already exists. as best I could. I realise that this will lead to differ individual cases. 'Cllces · of opinion among judges But feasible and practical way of dealing with a situation in which much confusion of In any event, these are the lines along which British juris prudence has functioned for centuries and our legal and It has this much merit. juristic foundations lie It helps to keep legislation and executive action on an even keel for, so long as the powers are used sparingly and with moderation, no court is likely to interfere. It is only when advantage is taken of a doctrine based on sound practical considerations and an endeavour made to push it further and further till the dividing line between permissible delegation of authority virtual abdication of legislative· functions, as a common sense man in the street would understand it, oevoid of legal subtleties, becomes dangerously thin that trouble is likely to arise. · I do not like this shirTcing of I confess I am not enamoured of this kind of legis lation. responsibility, for, after all, the main function of a legislature is to legislate and not to leave that to others. Its primary duty is to weigh and consider the desirability or other wise both of introdu, cin.g new laws and of abolishing or particulars. But, modifying old ones essential speaking judicially, I am unable to hold, in view of our past history and in view of the necessities of a modern State, that the matters I have set out above, subject competence beyond these powers will be used sparingly however, both on grounds of principle as well as of practical this case and the the experience· of expediency, for lessons of the risks involved. Legislation of this kind is liable to be call- ~ eel in question at any time and it is always a gamble which way the dice will fall. This. is the . sort of case in which· a stitch in time saves many nines. Even in England, where Parliament is unfettered, a Com mittee set up to examine the desirability of this type the past show only indicated, I too clearly Parliament. limitations I have 1951 In re The Delhi law• Act, 1912, etc. Bose I. 1124 SUPREME COURT REPORTS [1951J of legislation has recommended that the powers of Par liament in this behalf be sparingly used. The reasons. given apply with much greater force in India. My answers to the reference are as follows :- ( 1) Section 7 of the Delhi Laws Act, 1912, intra vires of the legislarure which passed it and so, also section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947. (2) Section 2 of the Part C States (Laws) Act, the concluding intra vires except for is also 1950, sentence which runs as follows :- "and provision may be made in any enactment so extended, for the repeal or amendment of any corres ponding law (other than a Central Act) which is for the time being applicable to that Part C State." In my judgment, this portion is ultra vires but as it can be separted from the rest of the Act, the remainder is good. My answers are, however, subject to this qualifica to "restrict and modify" does not tion. The power import the power to make essential changes. confined to alterations of a minor character such as are necessary to make an Act intended for one area appli cable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essen tial character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislate, all authorities are agreed, cannot be dele gated by a legislarure which is not unfettered. It OPINION OF THE COURT. The Court held by a majority that the prov1s1ons contained in Questions 1 and 2 are not ultra vires the legislarures which passed provisions. As section mentioned on Question 3, the first part was held to be intra vires, but the second portion, which is in the following terms : the Act containing regards "' S.C.R. SUPREME COURT REPORTS 1125 "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 Indian Parliament which passed the Act. that Part C State," is ultra vires 1951 111 re The Delhi Larva A.ct, 1912,. etc. ./Jose J. Agent for the President of India, the State of "Bom the State of the State of Madras and bay, Mysore : P. A. Mehta. Agent for the State of Uttar Pradesh: C. P. Lal. Agent for Capt. Deep Chand and Pt. Amarnath Bhardwaj : R. S. N arula. Agent for the Ajmer Electric Supply Co. Ltd. : M. S. K. Sastri. Agent for the Municipal Committee of Ajmer, and Runglal Nasirabad Maiden's Hotel Rajinder Narain. Agent for Shri Munshi Lal and others : Shankar Das. ANGURBALA MULLICK ti • . DE BAB RAT A MULLICK. [SA1Ym FAzL Au, MEHAR CHAND MAHAJAN, MuKHERJEA AND CHANDRASEKHARA AIYAR JJ.] Hindu Women's Rights to Property Act (XVIII of 1937), s. 3- <, Right to shebaitship-Whether "property"-Applicability of Act Widow's right to joint shebaitship with son-Construction of deeds -"Heirs of A," meaning of. y scope and operation of The word "property" as used in s. 3 (l) of the Hindu Women's Rights to Property Act, 1937, includes shebaitship which is a cognised form of property under Hindu law, and there is nothing in any of the provisions of the said Act which excludes from to shebaitship. Even the Act succession assuming that ·the word "property" in Act XVIII of 1937 is ·to be interpreted in a narrower sense, inasmuch as succession shebaitship follows succession its ordinary or secular sense and the Hindu Women's Rights to Property Act, to property