In Re: The Delhi Laws Act, 1912, The... vs Unknown

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 23 May, 1951

Coram: Harilal Kania, Mehr Chand Mahajan

In this matter, the Court observed that the President of India had invoked article 143 of the Constitution to refer a reference to the Supreme Court, requesting the Court’s opinion on three specific questions for consideration and reporting. The first question asked whether section 7 of the Delhi Laws Act, 1912, or any of its provisions, were ultra vires the Legislature that enacted the Act, and if so, in what particular respects or to what extent. Section 7 of that Act, as quoted in the reference, provides that the Provincial Government may, by notification in the official Gazette, extend to the Province of Delhi or any part thereof any enactment that is in force in any part of British India on the date of such notification, with such restrictions and modifications as it thinks fit. The second question sought to determine whether the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions, were ultra vires the Legislature that passed it, and again, to specify the particular points or extent of such ultra vires. Section 2 of the Ajmer-Merwara Act states that the Central Government may, by notification in the official Gazette, extend to the Province of Ajmer-Merwara, with any restrictions and modifications it deems appropriate, any enactment that is in force in any other Province at the date of the notification. The third question inquired whether section 2 of the Part C States (Laws) Act, 1950, or any of its provisions, were ultra vires the Parliament, and asked for a detailed identification of any such overreach. Section 2 of the Part C States Act provides that the Central Government may, by notification in the Official Gazette, extend to any Part C State—excluding Coorg and the Andaman and Nicobar Islands—or to any part of such a State, any enactment that is in force in a Part A State on the date of the notification, with such restrictions and modifications as it thinks fit, and that the extended enactment may contain provisions for the repeal or amendment of any corresponding law, other than a Central Act, presently applicable to that Part C State. The Court noted that the three sections mentioned in the questions all relate to the delegation of legislative power, and that the three Acts were chosen deliberately to raise the issue of legislative competence at three pivotal stages in India’s constitutional evolution: the period prior to the Government of India Act, 1915; the era following the Government of India Act, 1935, as amended by the Indian Independence Act, 1947; and the present constitutional framework established by the Constitution of 1950.

The judgment noted that the second issue concerned the legislative authority of the Indian Legislature after the Government of India Act, 1935, as it stood after being amended by the Indian Independence Act of 1947. The third and final issue related to the power exercised by the Indian Parliament under the Constitution that came into force in 1950. To discuss these matters, the Court stressed the need to understand the nature of the legislative powers that the Indian Legislature possessed during each of these three distinct periods. While the Court refrained from providing an exhaustive historical treatise, it considered it appropriate to set out a concise background. It observed that the East India Company initially entered India as a commercial enterprise and, over time, expanded its influence to include political control. As the Company’s territories came under its administration, legislative responsibility for those areas shifted to the Crown in England, which assumed the role of the supreme legislative authority. The Court further explained that the Indian Councils Act of 1861, specifically section 22, conferred upon the Governor-General in Council, supported by additional nominated members, the power to enact laws. Consequently, the constitutional arrangement placed the British Parliament as the sovereign body that enacted the Indian Councils Act, thereby authorising the Governor-General in Council, in his legislative capacity, to make laws for the Indian territories under Crown governance. The Court emphasized that, under the English constitutional framework, the British Parliament—exercising its legislative authority through the King and the two Houses—was regarded as supreme, and its sovereignty was not subject to challenge anywhere. It highlighted that the Parliament possessed no written charter that defined or limited its powers; its authority was derived from long-standing convention yet was now recognised as absolutely, completely, and unfettered. The judgment quoted Sir Cecil Carr, writing on English administrative law, who observed that Britain lacks a written constitution or a fundamental statute that functions as a touchstone for all other legislation and that can be altered only through a specially solemn and dilatory process. Carr further stated that, in Britain, the “King of Parliament is all-powerful” and that no Act can be passed which would be invalid within the ordinary limits of judicial interpretation. He added that even Magna Carta is not inviolate and described the “efficient secret of the English Constitution” as the close union and near-complete fusion of executive and legislative powers, whereby the executive authority is entrusted, under the system of Cabinet Government, to a committee composed of members of the dominant party in the legislature and in the country.

The Court then turned to the commentary found in Halsbury’s Laws of England, Volume VI, Article 429, to illustrate the consequences of such a constitutional arrangement. That source was cited as stating that, because the British Parliament is supreme, there exists no law that the King in Parliament cannot make or repeal, whether that law concerns the Constitution itself or any other matter. The source further explained that, unlike states whose constitutions are fixed in written documents and therefore require a judicial body to determine whether a particular legislative enactment falls within constitutional limits, the United Kingdom does not require such a judicial test. Accordingly, laws that affect the Constitution may be enacted with the same ease as any other legislation, since there is no necessity for a separate constitutional adjudication mechanism. By referencing these authorities, the Court underscored the absolute nature of parliamentary sovereignty in the British system and contrasted it with the constitutional developments that later shaped the legislative powers of the Indian Legislature under the various statutes and constitutional provisions examined in the case.

The Court observed that powers conferred on subordinate bodies in England were subject to the same legislative procedure that applied to ordinary statutes. As the frequency and scope of such conferments increased, doubts arose about whether the existing procedure was appropriate. In response, the Government established a Committee of the Minister’s Powers, commonly known as the Donoughmore Committee, to examine the matter. The Committee advised Parliament to observe certain precautions when delegating authority to subordinate entities. This advice was deemed logical because the English constitutional doctrine recognises Parliament as supreme and absolute, meaning that no other legislation can limit its powers. The Court noted that a supreme legislative body possesses several fundamental attributes. One such attribute is that it is improper to describe the statutes it enacts as “constitutional” in the sense used for subordinate legislation. The notion of constitutionality can arise only when there exists a standard or touchstone against which a law can be measured. In the case of a sovereign legislature such as the British Parliament, no such touchstone exists; all statutes are simply laws, and there is no categorical distinction between “constitutional” statutes and other statutes. Consequently, every law passed by Parliament may be amended or repealed by the same Parliament with the same ease as any other law. From this principle, the Court concluded that no court or other authority possesses the jurisdiction to declare an Act of Parliament unconstitutional. Referring to A.V. Dicey’s Law of the Constitution (ninth edition), the Court explained that the French republican system vested its supreme legislative power not in the ordinary bicameral Parliament but in a National Assembly composed of the Chamber of Deputies and the Senate sitting together. The French constitutions, like other Continental models, were characterised as rigid when compared with the flexibility of English institutions. The Court defined a flexible constitution as one in which every law, irrespective of its subject matter, can be legally altered with the same facility and by the same body that originally enacted it. In the British context, this flexibility resides in the Crown and the two Houses of Parliament, which may modify or repeal any existing law in the same manner that they may pass a new statute authorising, for example, the construction of a railway from Oxford to London. Accordingly, English statutes are sometimes described as “constitutional” only because they concern matters that affect the fundamental institutions of the State, not because they are legally more sacred or more difficult to change than ordinary statutes. Under these circumstances, the expression “constitutional law or enactment” is seldom employed to label an English statute, since the term does not convey a distinct legal character. By contrast, in a rigid constitutional system, the label “constitutional” signifies that a particular enactment forms part of the constitution itself and cannot be altered with the same ease as ordinary legislation, a characteristic that justifies judicial review of such enactments.

In this case, the Court observed that courts possess the authority to decide whether a particular statute conforms to the constitution, a power that does not arise with respect to any enactment of the British Parliament. By contrast, the Governor-General in Council, whose legislative authority derived from the Indian Councils Act, occupied a different position. The Act itself defined and limited the Governor-General’s powers, and those powers could be withdrawn, altered, expanded or further restricted at any time. Because the legislative authority of the Governor-General in Council stemmed from an Act of the British Parliament, the question of whether the Governor-General acted within the scope of his legislative competence could always be raised before, and determined by, a court of law. The Court referred to A. V. Dicey’s _Law of the Constitution_, ninth edition, where the author distinguishes a sovereign legislature from a subordinate law-making body. Dicey explains that subordinate legislatures possess only limited law-making authority. On page 99 he specifically examined the Legislative Council of British India before 1915 and stated: “Laws are made for British India by a Legislative Council having very wide powers of Legislation. This Council, or, as it is technically expressed, ‘the Governor-General in Council’, can pass laws as important as any Acts passed by the British Parliament. But the authority of the Council in the way of law-making is as completely subordinate to, and as much dependent upon, Acts of Parliament as is the power of the London and North Western Railway Company to make byelaws…Now observe, that under these Acts the Indian Council is in the strictest sense a non-sovereign legislative body, and this independently of the fact that the laws or regulations made by the Governor-General in Council can be annulled or disallowed by the Crown; and note that the position of the Council exhibits all the marks or notes of legislative subordination. (1) The Council is bound by a large number of rules which cannot be changed by the Indian legislative body itself and which can be changed by the superior power of the Imperial Parliament. (2) The Acts themselves, from which the Council derives its authority, cannot be changed by the Council and… they stand in marked contrast with the laws or regulations which the Council is empowered to make. These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may legislate… (3) The courts in India… may, when the occasion arises, pronounce upon the validity or constitutionality of laws made by the Indian Council.” From this passage the Court concluded that the Indian legislature from 1861 to 1915 functioned as a subordinate legislature rather than a sovereign one. The Court further noted that during the same period the government operated on a unitary basis, not a federal one, and therefore there was no distribution of legislative powers between a central authority and separate provinces.

In describing the distribution of legislative authority, the Court noted that the British Parliament was the supreme law-making body, whereas its executive government could remain in power only for as long as Parliament permitted and Parliament itself could not be dissolved. Consequently, the executive formed part of the legislature, and the legislature exercised control over the executive’s actions. The Court observed that, in this arrangement, the legislature was effectively supreme and could direct the executive government. By contrast, the situation in India was markedly different and, in many respects, reversed. The Governor-General of India was appointed by the Crown, and even after the size of the Indian legislative body increased before the Government of India Act of 1915, the legislature possessed no authority over the executive. Regarding the functioning of the Indian legislature prior to that Act, the Court explained that the Secretary of State’s control was justified on the ground that the provincial legislatures were merely extensions of the executive for the purpose of enacting laws and that they were essentially advisory bodies without any real power.

The Court further stated that the executive Government of India was not accountable to the Indian legislature. The composition of the legislature was such that executive officers together with the nominated members formed a majority, making the Legislative Council essentially a creation of the executive Government of India. As a result, the Council’s role was largely limited to recording the decrees of the executive. The Court cited a lecture by Mr Cowell, which described the statutes passed by the Legislative Councils as, in reality, orders of the Government. Every bill that passed the Governor-General’s Council required the Governor-General’s assent before it could become an Act.

The Court then turned to the provisions of the Indian Councils Act of 1892. That Act empowered the Governor-General in Council, with the approval of the Secretary of State in Council, to make regulations governing the conditions for nominating additional members, deliberately avoiding the use of the term “election.” A notable feature of the Act was the presence of a strong block of official members in the Councils. According to a contemporary writer on the Indian Constitution, the Government exercised tight and close control over the conduct of these official members, prohibiting them from voting as they wished, from asking questions, moving resolutions, or, in some Councils, intervening in debates without Government approval. Their principal function was to vote in line with the Government. The Court observed that, however eloquent the non-official speakers might be and however persuasive their arguments, when the time came to vote the silent official bloc would intervene and decide the matter against the non-official positions.

All of these circumstances, the Court concluded, rendered the proceedings of the Legislative Council largely unreal. The number of elected members was small, and the outcomes of debates were often predetermined.

In December 1908, while the Bill that eventually became the Government of India Act of 1909 was being considered in the House of Lords, the Secretary of State for India at that time, Lord Morley, made a clear declaration. He said that if his intention had been to establish a parliamentary system in India, or if the provisions of the Bill could be interpreted as inevitably leading to such a system, he would refuse to be associated with it. He emphasized that a parliamentary system was not a goal he would ever aspire to, stating plainly that he had nothing whatsoever to do with creating a parliamentary form of government in India. This statement underscored the official attitude of the British administration toward the nature of constitutional development in India during that period.

The Constitution of the Central Legislative Council, as created under the Regulation of November 1909 and later revised in 1912, prescribed a specific composition. The Council included ordinary members of the Governor-General’s Council, the Commander-in-Chief and the Lieutenant-Governor. In addition, there were eight nominated members, of whom no more than twenty-eight could be officials, and thirty-three elected members. The Governor-General himself also sat on the Council, bringing the total membership to sixty-nine. Within this framework, the executive government held supreme authority and was not legally required to obey or implement the decisions of the legislature. Historical instances are well known where Finance Bills that were rejected by the Council, or other measures supported by popular sentiment, were overruled by the Governor-General. Consequently, the Indian Legislature possessed no effective power to enforce its will. A bill could not become law without the executive’s consent, nor could an existing law be amended or repealed without that same consent. The legislature therefore lacked any ability to recapture powers that had been delegated to the executive under an enactment, such as the Delhi Laws Act; once such an act was passed, the granted power became practically irrevocable. The Court considered it inappropriate to compare the position and authority of this Indian Legislature with the supreme and sovereign character of the British Parliament.

The legislative authority of the Indian body underwent further transformation with the passage of the Act of 1915, which introduced provincial legislatures and thereby altered the structure of law-making. While the Court will not detail every change, it notes that the 1915 Act created a system of diarchy, dividing certain responsibilities between elected Indian representatives and appointed officials, but it did not establish a federation. Later, the Government of India Act of 1935 redistributed legislative powers between a central legislature and the newly created provincial legislatures. Each legislature received exclusive authority over subjects listed in Lists I and II of the Seventh Schedule, while List III comprised matters on which either the centre or the province could legislate. The residuary power, covering subjects not specified in the first two lists, was vested in the central authority under section 104 of the Act. Despite these internal allocations, the 1935 Act remained legislation of the British Parliament, meaning that the British Parliament retained the power to modify, expand, or restrict the competencies of both the central and provincial legislatures at its discretion, without requiring the consent of the Indian legislatures.

The Court observed that, under the Government of India Act, the executive branch was not answerable to either the Central Legislature or the Provincial Legislature, whichever was applicable. This lack of accountability demonstrated that legislative and executive powers were not merged as they were under the English Constitution. The Court further noted that the Indian Independence Act of 1947 removed the British Parliament’s authority to legislate for India. Consequently, the Indian Central Legislature was empowered to transform itself into a Constituent Assembly tasked with drafting a Constitution for India and was also given the authority to amend or repeal the Government of India Act, 1935, which would remain the governing instrument until the new Constitution was adopted. Despite this transformation, the Court pointed out that the executive government continued to be independent of the Central Legislature; with the British Parliament’s control eliminated, the executive ceased to be answerable to any body.

According to the Court, the Constitution of India, which came into force on 26 January 1950, vested executive authority of the Union in the President, who acted on the advice of the Ministers. The Constitution established a Parliament to enact laws and a Supreme Court whose powers were defined in various articles. Thus, the executive, legislative, and judicial functions were allocated to distinct bodies, although the constitutional provisions did not expressly confer legislative or judicial powers upon those bodies in a direct manner. The Court emphasized that, under the Constitution, Ministers were required to be responsible to the legislatures, mirroring the accountability feature of the British Parliament. Nevertheless, the Court distinguished the Indian Parliament from the British Parliament by stating that the Indian Parliament derived its powers, privileges, and obligations solely from the Constitution and was not a sovereign, unlimited body. Its law-making authority was confined to subjects enumerated in the relevant articles and Schedules, and its powers were further restricted by provisions such as those in Chapter III concerning Fundamental Rights. The Court also noted that, in a national emergency threatening the Union’s safety, the President possessed explicit power to suspend the Constitution and assume all legislative powers. Similarly, under article 257, the President could assume both legislative and executive powers in a State when its administrative machinery failed. Subject to these controls and limitations, the Court concluded that the Legislature, within the scope of its constitutionally assigned powers, remained supreme and possessed plenary authority over the subjects it was empowered to legislate upon.

In this case, the Court explained that, for the matters over which the Legislature has the authority to enact law, the Legislature is supreme and possesses full, plenary powers. The Court identified the principal issue presented for its consideration as the meaning of “delegation of legislative powers.” It described a legislative body that is sovereign in the manner of an autocratic ruler as having the capacity to take any action it desires; such a body could, by a single decision, order the execution of an individual or authorize the State to take ownership of property. A body of this character could also appoint a person to exercise all of its powers and make all of its decisions, and there would be no other authority or tribunal capable of questioning the legitimacy of that power.

The Court noted that the arguments presented on behalf of the President of India asserted that the power to legislate inherently includes the power to delegate that authority to any individual the legislature chooses to appoint. Whether the legislature is sovereign or subordinate, the Court said, such delegation is permissible only if it satisfies three conditions. First, the delegation must relate to a subject or matter that lies within the legislative competence of the body making the delegation. Second, the power to delegate must not be prohibited by the instrument that created or established the legislative body. Third, the delegation must not result in the creation of a separate legislative body possessing the same powers and performing the same functions, where such a creation is forbidden by the instrument that established the original legislature.

The Court further observed that, in an uncodified constitution such as that of the United Kingdom, there is no positive limitation or negative prohibition on delegation, and therefore the power of delegation is fully encompassed within the legislative power. The British Parliament, the Court said, can even repeal or annul its own prior legislation the next day, effectively allowing it to “efface” or abdicate its earlier enactments. When the British Parliament created legislatures in India, Canada and Australia by Acts of Parliament, those legislatures, although dependent on the British Acts for their existence, possessed plenary powers of the same nature as the British Parliament on the subjects within their respective legislative competence. Because the power of delegation is included in the legislative power, those legislatures also enjoyed, subject to the three limitations mentioned, the full authority to delegate. The Court emphasized that those colonial legislatures were not agents of the British Parliament, and consequently the doctrine “delegata potestas non-protest delegare” does not apply to their actions when they delegate authority to other bodies to make rules, regulations, or to authorise the executive to enforce laws, whether wholly or partially, and with or without restrictions.

In this case the Court observed that legislatures may empower the executive to enforce laws that they have enacted, or that have been enacted by other legislatures, either in whole or in part, and may do so with or without any imposed restrictions or modifications. The Court stated that such authority is fully within the competence of the legislatures. It noted that the historical development of legislation in England, in India, and in the other Dominions supports this view, and that the practice of delegating enforcement powers is recognized as a normal legislative practice. The Court pointed to numerous statutes passed by the legislatures of the Dominions and by Indian legislatures that contain such delegations. It further explained that the Judicial Committee of the Privy Council, over many years, has acknowledged the validity of this kind of legislative delegation, and that it would now be untimely to challenge the legitimacy of such delegations. The Court also recorded that the most recent argument raised by counsel was that the Federal Court’s observations in Jatindra Nath Gupta v. Province of Bihar, reported in 1949 F.C.R. 595, which suggested that delegation might be impermissible, should be reconsidered. Before examining these arguments in detail, the Court said it was necessary to clarify the precise meaning of the term “delegation,” because the word is not used uniformly in scholarly discussions or even in certain judicial decisions.

The Court explained that when a legislative body passes an act, it is exercising its legislative function, which consists of determining legislative policy and formulating that policy as a rule of conduct. These two essentials constitute the core character of a legislature and are unrelated to the separation-of-powers doctrine found in the Constitution of the United States of America. The Court added that the legislature may, after setting out the essential factual conclusions, authorize a specially designed administrative agency to apply those conclusions to the relevant data and thereby bring the statutory command into effect. After the legislature has enacted its laws, every procedural detail required to implement those enactments may either be undertaken by the legislature itself or delegated to a subordinate agency or to an executive officer. Although this practice is sometimes described as a delegation of legislative powers, the Court stressed that it differs from a true delegation of legislative power, which involves the determination of legislative policy and its formulation as a rule of conduct. The Court observed that the term “delegation” is often employed without recognising this fundamental distinction. While the ancillary delegation that enables the creation of rules and regulations is accepted as a necessary complement to the power to define policy, the critical issue raised by the Attorney-General concerned whether the legislature possessed the authority to delegate the core legislative functions themselves. In support of the contention that the Indian Legislature’s law-making power includes the power to delegate, the Attorney-General relied on several decisions of the Judicial Committee of the Privy Council as well as on rulings of the Supreme Courts of Canada and Australia, the first of which was The Queen v. Burah, reported in 5 I.A. 178.

The Governor-General of India enacted a statute whose purpose was to remove the Garo Hills from the jurisdiction of the tribunals that had been created under the General Regulations and any Acts passed by a legislature in British India. The Act explicitly provided that no legislation subsequently passed by the Council of the Governor-General for making laws and regulations would be deemed to apply to any part of that territory unless the Act specifically named that part. Administration of civil and criminal justice within the territory was entrusted to officers whom the Lieutenant-Governor could appoint from time to time. Section 8 of the Act authorised the Lieutenant-Governor, by way of a notification in the Calcutta Gazette, to extend to the territory any law or any portion of any law that was presently in force in other territories under his Government, or any law that might later be enacted by the Council of the Governor-General or by the Lieutenant-Governor himself for making laws and regulations. In exercising such an extension, the Lieutenant-Governor could also direct by whom any powers or duties incidental to the extended provisions should be exercised or performed, and could issue any order he deemed necessary to give effect to those provisions. Section 9 empowered the Lieutenant-Governor, again by notification in the Calcutta Gazette, to extend mutatis mutandis all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills, and to those portions of the Khasi Hills that, at the time, formed part of British India, with each notification required to specify the boundaries of the territories to which it applied.

Subsequently, the Lieutenant-Governor of Bengal issued a notification exercising the power conferred by Section 9 and extended the provisions of the Act to the area known as the Khasi and Jaintia Hills, thereby excluding those hills from the jurisdiction of the ordinary civil and criminal courts. By a majority judgment, the Calcutta High Court held that the notification had no legal force or effect. In the proceedings before that court, counsel for the Crown boldly asserted that the Indian Legislative Council possessed the authority to transfer legislative functions to the Lieutenant-Governor of Bengal. The judge, Markby J., framed the issue for determination as follows: “Can the Legislature confer on the Lieutenant-Governor legislative power?” The answer rendered was that, as a general principle of law in India, any substantial delegation of legislative authority by the Legislature of this country is void. Lord Selbourne, agreeing with the High Court that Act XXII of 1869 fell within the legislative power of the Governor-General in Council, then considered the narrower question of whether, consistent with that view, the ninth section of the Act should nevertheless be held void and of no effect. The Board noted that the majority of the Judges of the Calcutta High Court based their decision on the view that Section 9 constituted a delegation of legislative power rather than legislation itself.

The Board observed that the view characterizing the ninth section as a mere delegation of legislative power rather than genuine legislation was untenable. It noted that in the principal judgment of Markby J. the doctrine of agency had been invoked, suggesting that the Indian Legislature was treated as an agent or delegate operating under a mandate from the Imperial Parliament. The Board rejected this characterization. In its observation, it stated that the Indian Legislature possessed powers expressly limited by the Act of the Imperial Parliament that created it, and that it could do nothing beyond the boundaries set by those limits. However, when the Legislature acted within those boundaries, it was not, in any sense, an agent or delegate of the Imperial Parliament. Instead, it was intended to hold plenary legislative powers comparable in scope and nature to those of Parliament itself. The established courts, whenever a question arose as to whether the prescribed limits had been exceeded, were required to determine that question by examining the instrument that had positively created the legislative powers and negatively restricted them. If the action taken fell within the general scope of the empowering words and violated no explicit condition or restriction, no court was entitled to inquire further or to broaden those conditions constructively.

The Board agreed that the Governor-General in Council could not, by any enactment, create in India a new legislative authority that was not already provided for or authorised by the Councils Act. In the Board’s opinion, no such creation or attempt had occurred in the present case. What had been done, the Board explained, was that the Governor-General in Council, in the ordinary course of legislation, decided to remove a specific district from the jurisdiction of the ordinary courts and officers and to place it under new courts and offices to be appointed by and answerable to the Lieutenant-Governor of Bengal. The Governor-General left it to the Lieutenant-Governor to determine the timing of that change and also empowered the Lieutenant-Governor, not to make any laws he pleased for that district or any other, but to apply, by public notification, to that district any law or part of a law that either already existed or might later exist under proper legislative authority in other territories administered by his government.

The legislature therefore determined that a certain change should occur, but found it expedient to leave the timing and manner of its implementation to the discretion of the Lieutenant-Governor. It also concluded that the laws presently or potentially in force in other territories under the same government were suitable to be applied to the district in question, although it was uncertain whether all such laws, or every part of them, could be conveniently applied, and therefore it was also expedient to grant the Lieutenant-Governor discretion on that point.

Having recognised that it was not certain that every law, or every part of a law, could be applied to the Garo Hills with equal convenience, the legislature entrusted a discretion to the Lieutenant-Governor. After this discretion had been exercised for the Garo Hills, the question arose as to what had been done with respect to the neighbouring districts of the Khasi and Jaintia Hills. The legislature resolved that it was fit and proper for the adjoining district of the Khasi and Jaintia Hills to be removed from the jurisdiction of the existing courts and to be placed under the same provisions that governed the Garo Hills, but only if and when the Lieutenant-Governor thought it desirable to do so. Moreover, the legislature held that it might be expedient to apply only some of those provisions to the adjoining district rather than the whole body of law. Accordingly, the legislature conferred a further discretionary power on the Lieutenant-Governor to determine, in his judgment, the timing, manner and extent of the application of the laws to the Khasi and Jaintia Hills.

The Court then set out the essential part of its decision on the question before it, stating in these terms: “Their Lordships think that it is a fallacy to 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 than that of the Governor-General in Council. Their whole operation is directly and immediately under and by virtue of this Act (XXII of 1869) itself. The proper legislature has exercised its judgment as to place, person, laws, powers and the result of that 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 to particular subjects, whether in an Imperial or in a Provincial Legislature, they may be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by 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 Book abounds with examples of it: and it cannot be supported that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which is from time to time conferred. It certainly used no words to exclude it.” The Court illustrated its point by referring to the power given to the Governor-General in Council, not in his legislative capacity, to extend the Code of Civil Procedure and the Code of Criminal Procedure by sections 385 of the Civil Procedure Code and 445 of the Criminal Procedure Code to different territories. It warned that arriving at a different conclusion would cast doubt on the validity of a long series of legislation crafted for the peculiar circumstances of India, much of which dated back to the period before 1861 and was therefore presumed to have been known to, and accepted by, the Imperial Parliament when the Councils Act of that year was passed.

The Court observed that the provision in question had been known to, and was within the consideration of, the Imperial Parliament at the time the Councils Act was enacted, and that no basis for doubt could be found either in the positive wording or in the negative wording of the Act before it. The Court noted that it had reproduced in full certain extracts from a prior judgment because that judgment was cited by the Attorney-General as the foundation of his argument; however, the Court expressed the view that the earlier judgment did not support the contention advanced. The Privy Council, as quoted by the Court, made several observations: first, the Garo Hills had been removed by the Act from the jurisdiction of the ordinary courts; second, a similar position had been reached concerning the Khasi and Jaintia Hills; third, the power to be exercised over areas that, despite the Act, remained under the administrative control of the Lieutenant-Governor was recognised; fourth, the authority given to the Lieutenant-Governor was limited to extending Acts that had been passed by the Lieutenant-Governor or the Governor-General, both of which were competent legislatures for the area concerned, and that the Lieutenant-Governor possessed no power to amend any law; fifth, the majority view of the Calcutta High Court that the Indian Legislature acted as a delegate or agent of the British Parliament was rejected; sixth, within the powers conferred on the Indian Legislature its authority was held to be supreme and of the same plenary nature as that of the British Parliament; seventh, the legislation did not create a legislative body possessing all the powers of the British Parliament; eighth, the objection that the measure amounted to unlawful delegation was dismissed because the measure was characterised as conditional legislation rather than delegation; ninth, the Court stressed that the order of the Lieutenant-Governor derived its legal sanction from the Governor-General’s Act and not merely from the Lieutenant-Governor’s own authority; and tenth, the Court held that the legislation enacted by the Governor-General in Council satisfied all requirements of valid legislation, applying equally to future laws because the appropriate legislative body for the area remained the same. The decision therefore expressly avoided endorsing the view that a power of delegation was contained within the power of legislation, concluding instead that what had been done was conditional legislation and not a delegation of legislative power.

In the case of Emperor v. Benoari Lal Sarma and others, the Court considered the validity of the Special Criminal Courts Ordinance II of 1942, which the Governor-General had issued under the emergency powers conferred upon him at the outbreak of war. The validity of the Ordinance was challenged on two grounds: first, that the wording of the relevant section suggested that the Governor-General, notwithstanding the preamble, had not actually found an emergency to exist but was merely providing for a possible future emergency; and second, that the section amounted to delegated legislation because the Governor-General, lacking explicit legal authority, was alleged to have decided for the Provincial Government whether an emergency existed rather than determining it himself. The Court examined the pertinent provision of the Government of India Act, 1935, which authorised the Governor-General, in cases of emergency, to make and promulgate ordinances for the peace and good government of British India or any part thereof, subject to the same restrictions and disallowance procedures that applied to laws made by the Indian Legislature.

In this matter, the petitioners argued that the preamble of the statute failed to acknowledge an existing emergency and merely provided for a future emergency, and they also contended that the provision amounted to delegated legislation because the Governor-General, lacking authority, attempted to shift the decision on whether an emergency existed to the Provincial Government rather than deciding it himself. The Court reproduced the relevant clause of the Government of India Act, 1935, which read: “72. The Governor-General may, in cases of emergency, make and promulgate ordinances for the 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 promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restriction as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act.” The Court then rejected the second ground of objection, observing that under paragraph 72 of Schedule 9 the Governor-General himself was required to discharge the legislative function and could not delegate that function to any other authority. The Court affirmed that the Governor-General had not delegated his legislative powers at all. Reiterating this point, the Court explained that the action taken was not an instance of delegated legislation but rather a common legislative arrangement in which a local administrative body determines, by its own judgment, whether the local application of a statutory provision is necessary. Accordingly, the Court disagreed with the Federal Court’s majority view that the action constituted a delegation of legislative functions. The Court further observed that, if the power of delegation were as expansive as the Attorney-General had claimed to be contained within the power of legislation, there would be no reason for the Privy Council to have rejected the argument that the Act represented a delegation and to have upheld its validity on the basis that it was merely conditional legislation. The Court then reaffirmed a passage from Russell v. The Queen [7 App. Cas 629], stating: “The short answer to this objection (against delegation of legislative power) is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters 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 on these persons powers to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency.” The Court noted that support for this statement was found in a subsequent decision.

In reviewing the precedent, the Court observed that the decision of the Privy Council in The Queen v. Burah (5 I.A. 178) did not advance the analysis beyond the earlier reasoning. Although the statute in question had been enacted as a war measure, the Board emphasized that the Governor-General was required to perform the legislative function personally and could not delegate that responsibility to other authorities. Upon examining the challenged Act, the Board concluded that the Act contained within itself the complete legislation concerning the matters it addressed and that no legislative functions had been delegated. A careful examination of these decisions and the comments contained therein, the Court held, clearly demonstrated that the arguments presented by the Attorney-General were effectively rejected. While the Judicial Committee had affirmed that the Indian Legislature possessed plenary powers comparable in nature and supremacy to those of the British Parliament, it had never endorsed the proposition that the Indian Legislature could create another body possessing identical powers or, in other words, that it possessed unrestricted authority to delegate. Whenever the question of the Indian Legislature’s power to delegate legislative authority to subordinate bodies was directly raised before the Privy Council, the Committee consistently rejected the suggestion and characterized the measures at issue as subsidiary or conditional legislation rather than a delegation of legislative power. Consequently, although the Board reiterated that the Indian Legislature’s powers were “as plenary and of the same nature as the British Parliament,” no decision in the preceding seventy years affirmed the existence of a broad delegation power as contended in the present case; instead, each case involved an assessment of the impugned legislation’s validity on the basis that it was conditional or subsidiary. The Privy Council applied the same reasoning to matters under the Canadian Constitution. The terms “subsidiary” and “conditional legislation” were employed to indicate that the powers given to subordinate bodies were not legislative but were limited to implementing the enactment. The Committee further stressed that the authority of any rules, regulations, or enactments derived not from the administrative decision to apply them but from the original legislative enactment itself. A proper interpretation of these decisions, therefore, did not support the Attorney-General’s contention.

The Court observed that the cited decisions do not lend support to the position advanced by the Attorney-General. It pointed out that several authorities of the Privy Council arising from appeals from the Supreme Court of Canada, together with decisions of the Supreme Court of Canada itself, were relied upon by the Attorney-General in formulating his argument. The Court indicated that these authorities would be examined in order to determine whether they sustain the contention raised. One such authority is the case of Hodge v. The Queen, reported in 9 App. Cas. 117, which originated as an appeal from the Court of Appeal for Ontario, Canada. The matter before the Court concerned the validity of the Liquor Licences Act. After concluding that the temperance legislation fell within the ambit of section 92 of the British North America Act for the purpose of “good government,” the judges considered an objection that the Imperial Parliament had not authorised the provincial legislature to delegate its powers to the Licence Commissioners. In effect, the objection asserted that the authority granted by the Imperial Parliament to the provincial legislature must be exercised exclusively by that legislature and not be delegated to any other body. The maxim delegata potestas non protest delegare was cited in support of this objection.

The judges then pronounced their observations. They held that the objection raised by the appellants was based on a complete misunderstanding of the true nature and status of the provincial legislatures. According to the judges, the provincial legislatures are not delegates of the Imperial Parliament, nor do they act under a mandate from that Parliament. When the British North America Act established a legislature for Ontario and vested its Legislative Assembly with exclusive authority to enact laws for the province on matters enumerated in section 92, it conferred plenary and ample powers within the limits prescribed by that section. These powers were not to be exercised by delegation from, or as agents of, the Imperial Parliament; rather, they were authority that the Imperial Parliament, in the fullness of its own power, could bestow. Within the subjects and area specified by section 92, the provincial legislature is supreme and possesses the same authority that the Imperial Parliament, or the Dominion Parliament, would have exercised in comparable circumstances when confiding municipal institutions or bodies of its own creation with the power to make bye-laws or resolutions on matters prescribed by the enactment, for the purpose of giving effect to the statute. The Court further noted that such authority is ancillary to legislation, and without it any attempt to provide detailed mechanisms for implementation could become oppressive or fail entirely. It rejected the argument advanced at the Bar that a legislature, by delegating important regulations to agents or delegates, extinguishes its own power. The judges clarified that the legislature retains its full power and may at any time dissolve the agency it has created, replace it with another, or assume direct control of the matter. The extent to which the legislature seeks assistance from subordinate agencies and the duration of such assistance are questions for the legislature, not for the courts to resolve. (The italics are mine). As regards the creation

The judges noted that when new offences are created, if it is appropriate to make bye-laws or resolutions, then the authority to enforce those rules must also exist and must be regarded as lawful. They further observed that the present case offers no assistance to the Attorney-General because it merely confirms the grant of power to make regulations that are ancillary to the primary legislation. The judges then referred to the decision in In re The Initiative and Referendum Act [1919] A.C. 935, where the Legislative Assembly of Manitoba’s Act was held to lie outside the scope of section 92 of the British North America Act. The reason was that the Act would strip the Lieutenant-Governor of the ability to stop the measure from becoming law even if it was approved by the electorate without his consent. The judges commented: “Section 92 of the Act of 1867 entrusts the legislative power in a Province to its legislature and to that legislature only. No doubt a body with power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada could, while preserving its own capacity intact, seek the assistance of subordinate agencies as had been done in Hodge v. The Queen [9 App. Cas. 117] 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.”

The judges then turned to the case In re George Edwin Gray [57 S.C.R. Canada 150], which examined the delegation of powers under the War Measures Act, 1914. The provisions of that Act were noted to be very similar to those of the Defence of India Act and the Rules issued under it in India during the First World War. In delivering the judgment, Sir Charles Fitzpatrick, Chief Justice, stated: “The practice of authorising administrative bodies to make regulations to carry out the object of an Act instead of setting out all the details of the Act itself is well known and its legality is unquestioned.” He rejected the contention that such delegated power could not be used to amend or repeal express statutory provisions, because under the Canadian Constitution only Parliament may make laws. He explained that Parliament cannot entirely abdicate its function, but it may, within reasonable limits, delegate its powers to the executive government, and that any such delegated authority remains subject to parliamentary control at any time. He added: “I cannot however find anything in that Constitutional Act which would impose any limitation on the authority of the Parliament of Canada to which the Imperial Parliament is not subject.” Addressing concerns that such broad discretion should not be left to the executive, he observed that the objection should have been raised when the regulations were presented to Parliament for approval, or preferably when the War Measures Act itself was debated. He underscored that Parliament was the delegating authority and that it was Parliament’s role to impose any restrictions on the powers given to the executive. He concluded with the remark: “Our legislators were no doubt.”

In this passage, the Court described the atmosphere of urgency that surrounded the enactment of wartime legislation, noting that legislators were moved by a strong belief that the safety of the nation constituted a supreme law that could not be overridden by any other statute, and that it was their duty to fulfill these patriotic intentions. The Court then referred to the decision in the Chemical Reference case, reported in the 1943 Supreme Court Reports of Canada, where Chief Justice Duff explained the practical effect of the War Measures Act. Chief Justice Duff held that the earlier Privy Council ruling in the Fort Frances case of 1923 had already settled the question of the Act’s validity, leaving no further issue to be decided. He further observed that the principle articulated in In re Gray (1918) required the Court to accept that an Order-in-Council issued in compliance with the conditions and provisions of the War Measures Act could possess the same force as an Act of Parliament. The Court explained that the regulations prepared by the Governor-General in Council to protect the supreme interests of the State were enacted by an authority that had been granted subordinate legislative power. Chief Justice Duff quoted the Privy Council’s judgment in the Fort Frances case, which established that during an emergency such as war, the Dominion’s authority over legislation concerning the peace, order and good government of Canada could, because of the necessities created by the emergency, override or displace the provinces’ exclusive jurisdiction over a wide field of matters. Nevertheless, he cautioned that this principle did not mean that every subject within Parliament’s ordinary jurisdiction could be delegated to the executive for legislative action, even in an emergency. Unlike the Indian Constitution, the British North America Act contained no provision that allowed suspension of the Constitution or an expansion of legislative powers in times of war. Consequently, Canadian courts interpreted the language of the relevant sections flexibly in order to meet the extraordinary needs of the nation, while stressing that such expansive interpretation was not permissible during normal times. The Supreme Court of Canada therefore examined the War Measures Acts on a distinct basis, focusing on the question of legislative competence but accepting that, given the unusual circumstances, the statutory wording sufficiently expressed legislative policy. The Court suggested that the test applied to emergency legislation could not be transferred to statutes enacted in ordinary periods, particularly where the law was permanent and not limited in duration. Finally, the Court mentioned the Privy Council’s discussion in Benaori Lal Sarma’s case (72 I.A. 27), noting that the legislation in that case, also a war measure, had been upheld as conditional legislation, and that the observations made therein were relevant to the present analysis.

In this case, the Court observed that the authorities from Canada appear to have taken a position that goes further than the position expressed in the decisions of the Privy Council. The Court could not accept that view. It was pointed out that the Canadian courts have sometimes used the term “delegation” in a broader sense than the Privy Council ever employed. A careful reading of all the judgments of the Privy Council revealed that the word “delegation,” when understood to mean the conferment of legislative functions, was never applied to the legislation that was being challenged, and the Privy Council deliberately avoided using that term in its reasoning. Instead, the Privy Council upheld the validity of the impugned legislation on the basis that the statutes were either conditional, subsidiary or ancillary in nature. The Court then turned to an important decision of the Supreme Court of Australia for further consideration.

The Court referred to the Australian case of Victorian Stevedoring and General Contracting Company Proprietary Ltd. v. Dignan, reported in 46 Commonwealth Law Reports at page 73. That case examined, before the High Court of Australia, whether a provision that authorized the Governor-General to make regulations having the force of law was a proper exercise of legislative power under the Constitution. The argument before the High Court was that section 3 of the Act was ultra vires and void because it purported to permit the Governor-General to issue regulations that would have the same effect as primary legislation. In the judgment delivered by Chief Justice Gavan Duffy and Justice Strake, it was stated: “The attack upon the Act itself was based upon the American Constitutional doctrine that no legislative body can delegate to 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 will act ultra vires if it undertakes to delegate the trust instead of executing it” (Cooley’s Principles of Constitutional Law, 3rd edition, p. 111). The Court also cited Roche v. Kronheimer [(1921) 29 Commonwealth Law Reports 329] as authority for the proposition that a subordinate law-making power may be vested in the executive. The Court noted that, whatever may be said for or against that authority, it was not prepared to depart from the principle articulated in that decision. Justice Dixon further elaborated, stating: “The validity of this provision is now attacked upon the ground that it is an attempt to grant to the executive a portion of the legislative power vested by the Constitution in the Parliament which is inconsistent with the distribution made by the Constitution of legislative, executive and judicial powers.” He continued that, although American doctrine forbids a legislature from delegating legislative power, that doctrine does not apply to the Australian Constitution because governmental powers are derived from the people of the Union, and no agency to which the people have confided a power may further delegate that power. Justice Dixon invoked the well-known maxim “delegata potestas non potest delegare” and observed that it is well understood in agency law and has been applied broadly in constitutional construction.

In this portion of the judgment the Court observed that the doctrine concerning the separation of legislative and executive powers is more firmly established in the Federal and State Constitutions of the United States than it is in private statutes. The Court noted that no comparable doctrine had ever arisen in relation to British colonial legislatures, whether those legislatures were created by the Crown’s prerogative power or by an Imperial statute. It was then emphasized that, in the United States, the intrusion of agency-type doctrines into constitutional interpretation has not interfered with the functioning of the separation of powers principle. According to the Judicial Committee, a legislature that exists under a strict constitutional framework cannot, by any enactment, create a new general legislative authority that is not expressly provided for in the instrument that established the legislature.

The Court then turned to the question of legislation enacted during a war emergency, citing the observations of Justice Dixon. He remarked that the exigencies which must be addressed under the defence power are numerous, great and urgent, and are essentially matters for the executive. Consequently, the nature of that power, by necessary implication, appears to permit a delegation that would ordinarily be prohibited to the legislature. Justice Dixon further expressed the view that such a provision would find support in American law, and he referred to the passage in Burah’s case, indicating that the Judicial Committee denied that any delegation of legislative power had actually occurred in that case. The Court clarified that this does not mean that every law conferring authority on the executive will be upheld, even if the subject-matter is extensive or vague, unless the law falls outside the constitutional limits of federal power. Nor does it mean that the distribution of powers cannot provide considerations that affect the validity of a law.

The judgment proceeded to acknowledge that the constitutional mechanism of separating powers logically and theoretically renders Parliament the repository of the Commonwealth’s legislative authority. The power of Parliament to authorise subordinate legislation is attributed to a conception of legislative power that relies more on the historical practice and usage of British legislation and English legal theory than on strict juristic analysis. Such subordinate legislation remains subject to parliamentary control and lacks the independent, unqualified authority that characterises true legislative power. In concluding, the Court stated that the appropriate approach was to follow the interpretation established in Roche v. Kronheimer (1921) 29 Commonwealth Law Reports 329. The discussion demonstrated that the learned judge was rejecting the argument that, because a similar conferment of power would be invalid under the United States Constitution, it should likewise be invalid under the Canadian Constitution. He did not address the specific question before the Court, and ultimately affirmed that the decision in Roche v. Kronheimer was conclusive. Finally, the Court cited Justice Evatt’s observation that, when examining the doctrine of separation between legislative and executive powers, one must remember the underlying Commonwealth framework.

In the judgment, the learned Judge observed that the British constitutional tradition includes an executive that is responsible to Parliament, a feature that is absent from the United States Constitution. He articulated a broad principle that every authorization granted by the Commonwealth Parliament to create rules or regulations—whether the recipient is the executive government or another authority—constitutes a grant of legislative power. He explained that the true character of the Commonwealth Parliament’s legislative authority includes, as part of its content, the power to delegate law-making functions to bodies other than Parliament itself. He further noted that if Parliament may lawfully delegate the power to issue binding commands to the executive or other agencies, an enlargement of the scope of that delegated power does not, by itself, invalidate the delegation. Nevertheless, he recognised that the scope of the delegated power often represents an important factor when assessing the validity of the legislation that confers such a grant.

The Judge acknowledged that his comments went beyond earlier decisions, but he justified this approach by recalling his earlier statement that, in his view, every conferment of power—whether in the form of conditional or ancillary legislation—represents a delegation of legislative power. He then concluded that, after full consideration, the Commonwealth Parliament is not competent to abdicate its legislative powers. This limitation does not arise because Parliament is required to exercise every legislative function, as it may choose not to do so, nor because the doctrine of separation of powers forbids Parliament from empowering other bodies to make laws or by-laws—indeed, Parliament does so in most statutes. Rather, the limitation exists because every law enacted by Parliament must fall within the description of law concerning one or more subjects enumerated in the Constitution. Consequently, a statute that transfers all of Parliament’s law-making authority to another entity would be invalid merely because it would fail to satisfy that constitutional requirement.

Reading the judgments in this manner, the Court determined that they did not support the argument presented by the Attorney-General. The Court also noted that decisions of the Privy Council on appeals from Canada did not advance the issue further. In the judgments of two Supreme Court of Canada cases and one Supreme Court of Australia case, observations were made that might appear to exceed the previously identified limits. However, the Court emphasized that such observations must be understood in the context of the specific facts, regulations, or enactments before each court. Those decisions uniformly reaffirmed that the legislature must carry out its functions and cannot delegate them entirely to another authority. Moreover, the term “delegation,” as used by Justice Evatt, was interpreted by some judges to encompass what is described as subsidiary or conditional legislation, indicating that the word does not always imply a strict delegation of legislative functions.

In this passage the Court explained that the term “delegation” was sometimes used to describe what is more precisely called subsidiary or conditional legislation. Consequently, when a judgment employed the word “delegation,” it was not necessary to assume that the judgment meant a delegation of legislative functions in the strict sense of that term. The decisions that had been cited were decided on the basis that the legislation in question was subordinate or conditional rather than a direct transfer of primary legislative authority. The Court then turned to the constitutions of the Dominions of Canada and Australia and observed that the legislatures of those Dominions were not “packed” as the Indian legislature had been, and that their constitutions were drafted on democratic lines. The Court noted that a fusion of powers between the legislature and the executive could be said to operate in Canada and Australia, whereas, as previously pointed out, there was no such fusion in the Indian Constitution that was in force up to the year 1935. Because of this difference, the Court held that conclusions drawn from the existence of a legislative-executive fusion in the Canadian and Australian contexts could not be applied to the Indian Constitution. Accordingly, the Court expressed the opinion that any observations in the Canadian and Australian cases that went beyond what had been clearly decided by the Privy Council with respect to the Indian legislature did not provide a useful guide for determining the extent of the Indian legislature’s power to delegate legislative functions to administrative or executive authorities. The Court further observed that both the Canadian and Australian constitutions were created by Acts of the British Parliament, making them written and relatively rigid instruments. In the Australian Constitution, the word “vest” was used in the allocation of powers between the legislative and executive branches, a usage similar to that found in the Constitution of the United States of America, and therefore the two constitutions shared certain common features. However, the Court pointed out that neither constitution established a clear and complete separation of powers; instead, there was a fusion of powers such that ministers were themselves members of the legislature. The Court then explained that reference had been made to several decisions of the Supreme Court of the United States of America in order to illustrate the difference between the legislative powers of the U.S. Congress and the legislative powers of legislatures that operated under constitutions fashioned on the British parliamentary pattern. The United States Constitution expressly vested legislative and executive powers exclusively in the bodies named in the Constitution, and the Court stated that this arrangement made it impermissible for one body to delegate those powers to another. Many U.S. Supreme Court decisions were based on the principle that a delegate lacked the competence to receive the power that was being sought to be conferred, because the Constitution expressly defined the competence of the executive body and, by implication, prevented that body from acquiring legislative powers from the legislature. In light of the final conclusion, the Court said it would briefly note the position as laid down by the United States Constitution.

In the discussion on statutory construction, the Court quoted a passage that explained the rule governing the delegation of authority to an executive official or an administrative board. The quoted text required that the legislature first state the policy of the law, then fix the legal principles that would control particular cases, and finally provide a clear standard to guide the official or board that was empowered to carry out the law. The standard, the passage said, could not be overly indefinite or vague; it might be expressed in broad terms, but it had to be intelligible enough for the executive or administrative official to follow. The Court observed that, although these criteria were demanding, they showed that Congress was fairly liberal in upholding legislative delegations whenever a satisfactory standard had been set. Such delegations did not attract the objection that legislative power had been unlawfully transferred. The Court further noted that filling in the mere details of policy, according to the legal principles and standards laid down by the legislature, was essentially a ministerial function rather than a legislative one, even when the delegated authority enjoyed considerable discretion. The Court then referred to the case of Hampton and Co. v. United States, 276 U.S. 394 (1928), and recorded the observation of Chief Justice Taft that it violated fundamental national law for Congress to surrender its legislative power to the President, the judiciary, or to attempt to give itself or its members executive or judicial powers. He clarified that the three branches remained co-ordinate parts of a single government, each able to rely on the others so long as it did not assume the constitutional function of another branch. He added that Congress often needed to employ executive officers within defined limits to achieve the precise effect intended by its legislation, granting them discretion to make regulations, interpret statutes, direct executive details, and even impose penalties for violations of those regulations. The Court also cited the view of Justice Ranny of the Ohio Supreme Court in Cincinnati W. and Z.R. Co. v. Clinton County Commissioners, which distinguished between delegating the power to make law—a power that necessarily involved discretion over what the law should be and could not be delegated—and delegating authority to execute the law, a delegation that raised no valid objection.

In the case cited as Locke’s Appeal, reported in volume 72 of the Pacific Reporter at page 491, the court articulated a clear distinction regarding legislative authority. The judgment explained that a legislature is prohibited from delegating its inherent power to make law, yet it may enact legislation that authorises another body to determine certain facts or conditions upon which the law’s operation depends. The court warned that denying such delegation would cripple governmental function, noting that effective legislation often relies on information that the legislative body itself cannot ascertain and therefore must be investigated and resolved outside the legislative chambers. In the United States Supreme Court decision Panama Refining Co. v. Ryan, reported at 293 United States 388, Chief Justice Hughes emphasized that Congress cannot relinquish or transfer the core legislative responsibilities vested in it. He acknowledged, however, that legislation frequently must address intricate circumstances containing numerous details beyond the direct reach of the national legislature. The Constitution, according to the opinion, does not forbid Congress from employing flexible and practical mechanisms that allow it to set overarching policies and standards while permitting designated agencies to formulate subordinate rules within defined limits and to determine the factual circumstances to which those policies apply. The Court warned that without such authorisation, legislative power would become ineffective in many situations. The same principle was reaffirmed in the decision Schechter v. United States, 295 United States 459, where the Court held that as long as a statute establishes policy and standards, the delegation of rule-making and factual determination to appropriate instruments does not constitute an unconstitutional surrender of legislative power.

The intricate nature of the delegation question and the varying judicial decisions that have either upheld or struck down statutory delegations were summarized by Schwartz in his treatise on American Administrative Law. After referencing the case Wayman v. Southend, reported in volume 10 of the Wheat Reporter at page 1 United States 1825, he reproduced Chief Justice Marshall’s observation that the precise line separating matters requiring exclusive legislative regulation from those that may be addressed through general provisions granting discretion to subordinate actors has never been exactly defined. Schwartz highlighted that when American courts finally confronted concrete delegation disputes, they resolved the resulting judicial dilemma by carefully selecting terminology to describe the transferred authority. This approach allowed the courts to acknowledge the existence of delegated legislation while refraining from labeling it as legislative power, thereby preserving the constitutional balance between legislative prerogative and administrative execution.

The Court observed that scholars had struggled to find an appropriate term for the concept of “delegated power.” Justice Holmes had described the authority that was transferred as “softened by a quasi,” a formulation that allowed the judiciary to acknowledge the existence of delegated legislation while refusing to label it as such. The Court further cited Professor Cushman’s logical construction, which stated that the major premise was that legislative power could not constitutionally be delegated by Congress; the minor premise was that certain powers must nevertheless be delegated to administrative officers and regulatory commissions; and the conclusion drawn was that such delegated powers were not legislative powers but rather administrative or quasi-legislative powers.

Counsel for the President contended that, for more than eighty years, Indian legislative practice had recognized this type of delegation and that, because this practice formed one of the guiding principles the Court should consider when evaluating the validity of legislative Acts, the Court ought to uphold it. To support this argument, a schedule attached to the President’s brief listed a number of Acts that were purported to illustrate such delegation. The Court, after careful examination, held that only a very small number of those Acts, when scrutinized closely, could be cited as examples, and even those did not demonstrate a clear practice of delegation. Some of the cited examples could more appropriately be classified as instances of conditional legislation or subsidiary legislation. The Court declined to elaborate further on these examples, stating that unless legislative practice was overwhelmingly evident, merely tolerating or acquiescing to an Act’s existence for several years without any legal challenge could not be regarded as binding when the validity of that practice was later questioned before the Court. Consequently, the Court concluded that the broad claim advanced by the Attorney-General—that the Indian Legislature before 1935 possessed the power to delegate legislative functions as described—lacked support both from judicial decisions and from established legislative practice.

In a detailed examination of the relevant decisions of the Privy Council as well as the judgments of the supreme courts of Canada and Australia, the Court determined, without stretching the language of those authorities, that a legislature may, as part of its legislative duties, confer powers to make rules and regulations necessary for implementing an enactment, may lay down the policy and guiding principles that dictate conduct, and may provide that the operation of an Act may be extended to additional areas or brought into force upon the determination of certain dates or facts by an executive authority—an approach described as conditional legislation. However, the Court held that a general power to delegate legislative functions is not justified under the Constitution of India at any stage. Even in emergencies such as war, where the executive must be given considerable latitude to enforce regulations, the Court rejected the suggestion that such circumstances validate a delegation of full legislative functions.

In the judgment, it was observed that the authority to issue regulations could be extremely broad, yet even in circumstances of great regulatory latitude the suggestion that this amounted to a delegation of “legislative functions” was expressly rejected. The Court further noted that, depending on the particular facts of a case and the character of the relevant statute, the doctrines known as conditional legislation, subsidiary legislation, or ancillary legislation were consistently recognised under every Constitution examined. The Court then expressed the view that the argument advanced by the Attorney-General – namely that a legislature possessed a general power to transfer its legislative functions so that it could abstain from defining policy or laying down any rule of conduct and instead leave the entire matter to an executive authority, an administrative agency, or any other body – was without merit and was not supported by the authorities relied upon. It was added that, apart from the unique sovereign status of the British Parliament, which is a matter of constitutional convention and whose powers are therefore absolute and unlimited, no other legislature in any jurisdiction had ever been found to possess such a sweeping power of delegation as the Attorney-General described.

The Attorney-General also contended that a legislature could not abdicate or efface itself when it delegated power, asserting that as long as the legislature retained the ability to control the actions of the delegated body and could revoke those actions, no abdication or effacement occurred. In support of this position, reference was made to certain passages from Privy Council judgments cited earlier. The Court clarified that those Privy Council observations were intended to demonstrate that the statute at issue was either conditional legislation or derived its force and authority from the enactment of the legislature, not from the actions of the delegate. The Court held that those observations did not establish a broad permission for legislative delegation. The proper test for “abdication” or “effacement,” the Court explained, was whether the legislature, in the language used to confer power, expressly retained control over the delegate. The question was whether the delegate’s decision derived its legitimacy from the delegate’s own act or from the legislature’s prior enactment. The Court emphasised that any authority granted to a delegate could normally be withdrawn, and that it was difficult to envisage a situation in which a legislative body could irrevocably lose the power to revoke a delegation. It was further observed that a legislative body created by an Act of the British Parliament did not possess the right to establish another legislative body with the same functions and powers, a power that remained exclusively with the British Parliament itself.

The Court observed that a legislative body created by an enactment of the British Parliament does not possess the same functions, powers, or authority that reside exclusively in the British Parliament itself. Consequently, it held that asserting the true test of effacement to be the inability of the authority which confers power on a subordinate body to withdraw that power is meaningless. In the Court’s view, the question of whether “abdication” or “effacement” has occurred must be answered by examining the specific words used in the instrument that grants power to the subordinate authority. The Court quoted the Oxford Dictionary definition of abdication as the abandonment, either formal or virtual, of sovereignty. It further explained that abdication by a legislative body need not amount to a complete effacement; abdication may be either partial or complete. The Court posed the hypothetical that, when a legislature, concerning a subject listed in the Legislative List, declares it will not legislate on that matter and instead leaves legislation to another entity, such a decision does not necessarily constitute abdication or effacement. However, the Court reasoned that if the legislature confers on the subordinate authority the full power to do everything the legislature itself could do, and yet retains the ability to control the subordinate’s actions by recalling the delegated power or repealing the subordinate’s statutes, then, in the Court’s opinion, the instrument’s grant of power amounts to an abdication or effacement by the legislature that conferred it.

The Court then turned to the issue of the power to modify an Act through orders issued by a subordinate authority, noting that this matter has attracted extensive discussion. Initially, when legislation empowered a subordinate authority to apply existing law to a defined area, the authority could only apply the law in whole or in part. Subsequently, that power was broadened to allow the authority to restrict the application of the law. In a further stage, the authority was given power to modify the law “so as to adapt the same” to local conditions. The Court found it evident that, up to that stage, the clear intention was to limit the delegate’s discretion to applying the law as suitable, either wholly or partially, and to make necessary adaptations dictated by local circumstances, without granting any additional powers. Only in recent statutes has the power of modification been conferred without any limiting language. The learned Attorney-General argued that, according to the Oxford Dictionary, “modify” means to limit, restrain, assuage, or make less severe, and also to make partial changes without radical transformation. Accordingly, the Attorney-General submitted that if the recipient of the power exceeds the limits of modification as understood by that definition, the excess should be deemed beyond the authorized scope and the exercise of such power could be declared invalid. He maintained that no broader power should be inferred from the term “modification.” By contrast, the Court noted that Rowland Barrows in “Words and Phrases” defined “modify” as meaning to vary, extend, enlarge, limit, or restrict, indicating that modification implies an alteration that may enlarge the provisions of the original Act.

In this case, the Court explained that Rowland Barrows’ Words and Phrases defines the term “modify” as meaning to vary, extend or enlarge, limit or restrict. The Court noted that legal authorities have held that a modification necessarily involves an alteration and may add to or expand the provisions of an earlier statute. The Court then observed that, pursuant to the powers granted by the Delhi Laws Act, the Central Government extended the application of the Bombay Debtors’ Relief Act to the Delhi territory. The Bombay Act originally limited its relief to poor cultivators whose agricultural income was less than five hundred rupees. By exercising the power of modification conferred by the Delhi Laws Act, the Central Government removed this income ceiling, thereby allowing the relief scheme, which was designed for impoverished peasants, to be applied in Delhi to large land-owners whose income could be as much as twenty lakh rupees. The Court regarded this as an illustration of how the Central Government understood and applied the word “modification,” an approach that had been accepted by the Indian Legislature. The Court expressed the view that such an exercise of modification power is not permissible under law. It warned that if the power of modification were allowed to be used in this manner, the Central Legislature could, in effect, alter the entire foundation and purpose of the legislation, resulting in a complete delegation of legislative authority. In such a scenario, the legislature would have failed to consider the policy objectives, the specific class of persons, the circumstances, or the mechanisms by which relief should be provided. The Court further cited the provisions of the Rent Restriction Acts in various provinces as another example demonstrating the danger of granting modification authority to the executive. After reviewing all the cited decisions and giving careful consideration to the detailed arguments presented by the learned Attorney-General, the Court reaffirmed the principle articulated in Jatindra Nath Gupta’s case that the legislature may not delegate to the executive or any other authority the power “to lay down the policy underlying a rule of conduct.” The Court noted that the term “delegation” has sometimes been used loosely, even by judges, and clarified that, as explained by the Privy Council, “delegation” does not encompass conditional, subsidiary, or ancillary legislation, which merely involves making rules and regulations to implement an enactment. Consequently, adhering to the Privy Council’s established meaning of “delegation,” the Court reiterated the position expressed in Jatindra Nath Gupta’s case that the legislature does not possess the power to transfer its essential legislative functions.

In this case, the Court observed that the power of delegation, as previously explained, is correctly understood. Under the Constitution that came into force in 1950, the British Parliament no longer exercised any control over the Indian Legislature. The powers of that Legislature, together with the limits on those powers, are defined solely by the Constitution of India. The Constitution has not expanded the scope of the Legislature’s law-making authority beyond what was already provided. Although the Constitution establishes Parliament and does not expressly grant exclusive legislative authority to it, the overall design of the Constitution assumes that the Union’s legislative duties will be performed by Parliament and by no other body. The core legislative tasks—namely, the determination of legislative policy and its expression as rules of conduct—remain vested in Parliament or, where appropriate, in the State Legislatures, and nowhere else. The Court based this view on the provisions of Article 357 and Article 22(4) of the Constitution. Article 356 addresses the situation in which a State’s constitutional machinery fails. When a proclamation declaring such a failure is issued, Article 357(1)(a) provides that the State’s legislative power shall be exercisable by, or under the authority of, Parliament. It further states that Parliament may confer upon the President the power to exercise the State’s legislative functions and may authorize the President, subject to conditions he deems appropriate, to delegate those powers to any other authority that he specifies. Sub-clause (b) adds that Parliament, the President, or any other authority empowered under sub-clause (a) may make laws that confer powers, impose duties, or authorize the conferring of powers and the imposition of duties upon the Union, its officers, or its authorities. It was argued that, during a breakdown of the constitutional machinery, authority must be given to Parliament or the President first to legislate on matters ordinarily reserved for the State Legislature, and second to enable the President to direct State executive officers to act in accordance with such emergency legislation. Counsel suggested that the term “to delegate” was used for this purpose. The Court found that argument unsound. Sub-clause (2) concerns the President’s use of State executive officers, but clause (a) already empowers Parliament to grant the President the legislative authority of the State. Consequently, Article 357(1)(a) expressly authorizes Parliament to permit the President to delegate his legislative powers. If powers of legislation include the power of

The Court observed that the provision concerning delegation to any authority was unnecessary, and therefore the inclusion of an additional clause in the article was superfluous. The language of that clause, the Court held, demonstrates that ordinarily the power to legislate does not encompass the power to delegate. The Court then turned to Article 22(4), which is crucial because it relates to preventive detention. Article 22(4) stipulates that no law may be valid if it permits the preventive detention of a person for more than three months unless the conditions specified in Article 22(4)(a) are satisfied. An exception to this rule exists for a statute enacted by Parliament on the conditions set out in Article 22(4)(b). Accordingly, Parliament must pass such a statute in conformity with the requirements of Article 22(7). The Court emphasized that this fundamental right limits detention to a maximum of three months, yet the Constitution expressly makes an exception in favor of Parliament. The Court considered it a breach of the fundamental-rights provisions of the article to argue that Parliament, even when legislating under the authority of Article 22(7), may transfer that right to the executive branch. Consequently, the Court could not accept the Attorney-General’s contention that, under the Constitution of 1950, the power of legislation inherently includes the power of delegation in a broad sense.

The Court further noted that, with respect to the British Parliament, the question of whether it can validly delegate its legislative functions is not a matter that can be determined by a court. Hence, the fact that the British Parliament has delegated legislative powers does not imply that the power of delegation is automatically recognised as part of the legislative power in law. Although the Indian Constitution does not contain an explicit separation of powers, the Court observed that it creates a legislature and provides detailed mechanisms for that legislature to enact laws. It would therefore be excessive to assert that the Constitution assigns the primary duty of law-making, together with the exercise of wisdom, judgment and patriotism, solely to legislatures. The Court questioned whether, absent clear constitutional provisions, other bodies—whether executive or judicial—are intended to perform legislative functions. The Court could not find, in the authorities cited, any principle that a law becomes valid merely because a legislature follows the prescribed procedure for passing a bill, unless the law falls outside the powers enumerated in the Seventh Schedule’s Legislative Lists. Articles 245 and 246 were not read by the Court as addressing the issue of delegating legislative authority. In the Court’s opinion, a proper construction of Articles 245 and 246, together with the Seventh Schedule Lists, interpreted in the light of judicial decisions, does not support a doctrine of legislative delegation.

The Court observed that when a statute delegates legislative authority to another body, the resulting enactment does not itself constitute a law on any of the subjects or entries enumerated in the Legislative Lists. Such a statute merely creates a provision that, instead of the legislature directly enacting law on a listed subject, empowers the designated body to formulate the policy of the law and to prescribe a rule of conduct that binds the persons to whom the law applies. In other words, the delegated legislation operates as a mechanism for the legislature to vest a separate entity with the authority to make policy and binding rules, rather than as a primary law covering the listed matters.

Considering all the authorities together, the Court concluded that legislatures in India, Canada, Australia and the United States are required to discharge their core legislative function, which is to lay down a rule of conduct. While performing this function, the legislature may also lay down conditions or state facts whose fulfillment—determined either by another authority or by an executing agency—activates the legislation within a specific area. This approach is known as conditional legislation. The legislature may also adopt a general formulation of the rule of conduct when the prevailing conditions and circumstances call for such a broad expression. The degree of specificity and detail that the legislature includes in the rule of conduct may vary according to the particular circumstances or exigencies of each case. Consequently, when unusual circumstances or exigencies arise and the legislature chooses not to prescribe detailed rules or regulations, it may leave the detailed work to another body that is then regarded as possessing subordinate legislative powers.

The Court then distinguished between two concepts: first, the power to delegate legislative functions, and second, the authority to confer powers that enable the recipient of the power to make regulations or rules that bring the law into effect or operation. After clarifying this distinction, the Court turned to the three specific questions presented in the Reference. It noted that the occasions for legislation of the type covered by those three questions originated in the early stages of the British occupation of India, when small fragments of territory were acquired and there was no regular legislative body for those areas. It was deemed convenient to apply to these small territories the laws made by a competent legislature in an adjoining region, thereby avoiding the establishment of a separate, often inconvenient and expensive, legislative machinery for each tiny area. Moreover, it was considered impracticable for the Governor-General in Council to enact day-to-day administrative laws for such fragmented territories, especially given the varied local conditions. Accordingly, powers were conferred on the administrator to apply the law wholly or partially, or to restrict its operation to a limited portion of the newly acquired area, reflecting the need to adapt legislation to local circumstances.

In this case, the Court observed that the principle was clearly illustrated by Act XXII of 1869, which had been examined in the decision The Queen v Burah [5 I.A. 178]. The Court explained that under section 22 of the Indian Councils Act 1861 the Governor-General in Council possessed the authority to make laws for every person, place and thing throughout British India. The Province of Delhi had been created out of the Province of Punjab and placed under a Chief Commissioner; consequently, by section 2 of the Delhi Laws Act, the statutes that were then in force in Punjab continued to operate in the newly formed Province of Delhi. Since Delhi did not have its own legislative assembly, the Court held that it was not contested that the legislative power for this Chief Commissioner’s Province remained vested in the Governor-General in Council acting in a legislative capacity. The Court noted that the initial question required an answer based on the legislative powers and status existing in the year 1912. It then turned to section 7 of the Delhi Laws Act, which authorises the executive Government, by way of notification and with any restrictions or modifications it deems appropriate, to extend to Delhi or any part thereof any enactment that was in force in any part of British India on the date of such notification. Accordingly, a law need not have originated in Punjab, the province from which Delhi was carved, but could be any central or provincial statute operative in any province at that time. The provision further permits the Government to apply future statutes, whether passed by the Central Legislature or by any Provincial legislature, again with such restrictions or modifications as the Provincial Government considers suitable, because the phrase “at the date of such notification” embraces subsequent legislation. The Court then compared sections 8 and 9 of Act XXII of 1869, which had empowered the Lieutenant-Governor, as discussed in The Queen v Burah [5 I.A. 178], to extend Acts that either had been or might be made by the Governor-General in Council or the Lieutenant-Governor, both being competent legislative authorities for the entire area under the Lieutenant-Governor’s jurisdiction. That power was limited to extending only those Acts to the area defined by Act XXII of 1869, a zone that was declared not to be subject to provincial laws unless a particular Act expressly mentioned it. Relying on that precedent, the Court concluded that, insofar as section 7 of the Delhi Laws Act confers on the executive (Central) Government the authority to extend statutes enacted by the Central Legislature to the Province of Delhi, such power may be sustained. The remaining issue, the Court said, was whether the executive Government could likewise extend Acts of other Provincial legislatures, either with or without restrictions or modifications.

Section 7 of the Delhi Laws Act authorized the Central Government to extend statutes that had been enacted by other provincial legislatures to the Chief Commissioner’s Province of Delhi. The judgment observed that, with respect to those statutes, the Central Legislature had not examined the matter at all. It had made no assessment of whether the people of Delhi required the rules of conduct contained in those statutes, nor had it considered whether such rules would be necessary or advantageous for the welfare of the Province or for the functioning of its administration. Those statutes had been passed by other provincial legislatures in accordance with the particular needs and circumstances of their own territories.

The effect of permitting the Central Government to apply those provincial statutes to Delhi, the judgment explained, was to shift a responsibility that ordinarily belonged to the Central Legislature. Instead of the legislature forming an opinion about the desirability or necessity of legislation on specific subjects for Delhi, that judgment and authority were transferred to the executive. For instance, whether a rent act, an excise act, a prohibition act, or a debt-relief act should be introduced as a matter of policy for Delhi was no longer a question for the Central Legislature. The Court noted that the legislature, which in principle should decide such policy matters, had its duty and power handed over to the executive without any reservation.

The Court further held that the power conferred by Section 7 differed fundamentally from the power created by Sections 8 and 9 of Act XXII of 1869. It cited the Privy Council’s consistent rulings that the Indian Legislature could not establish a body that possessed the same legislative authority as the Central Legislature itself; the legislature could not nullify its own functions. The judgment identified two issues emphasized by the Privy Council. First, whether a newly created body could be empowered to make laws, and second, from where the legal sanction for those laws derived.

Regarding the first issue, the Court observed that, in principle, there was no distinction between a newly created body drafting fresh statutory provisions on paper and that body simply declaring that the law to be applied would be the text of a statute printed elsewhere. Consequently, if such a body declared that Delhi’s law would be identical to a specific Bombay or Madras Act of a particular year, that declaration itself constituted the law for Delhi. The Court also noted that the new body might impose restrictions or modifications on the imported provisions. Concerning the second issue, the Court explained that the legal sanction arose from the notification issued by the newly created body stating that the Bombay or Madras Act, with any indicated modifications, would be the law in Delhi. That sanction did not stem from any direct decision or will of the legislature.

The Court observed that the legislature had never explicitly considered and declared that the Bombay Act would constitute the law of the Province in question. In the Court’s view, it was unreasonable to argue that legislative sanction could be derived from a mere statement by the legislature that the law would be whatever the newly created body decides or specifies, because such a statement only identified the new body and indicated that authority was being delegated to it to choose a law from another province. The Court then referred to the illustrations concerning the extension of the Civil Procedure Code and the Criminal Procedure Code given in the judgment of The Queen v. Burah [5 I.A. 178]. Those illustrations had to be examined together with the historical fact that, at that time, the Governor-General in Council, acting in its legislative capacity, possessed the power to legislate for the whole of India on all subjects. Both the Civil Procedure Code and the Criminal Procedure Code had been enacted by the Central Legislature, which could have made them applicable throughout India immediately. However, after enacting those statutes, the Central Legislature imposed a condition that their operation could be referred to certain areas only when the respective Provincial Government (executive) deemed it appropriate for the codes to be applied within its territory. A Provincial Government, such as that of Bombay, was not empowered to formulate any policy regarding the Civil Procedure Code or the Criminal Procedure Code, nor was it authorised to select, at its discretion, a law passed by the Legislature of Madras for application in the Province of Bombay. If the Provincial Government wished to adopt such a law, the Legislature of the Province of Bombay itself had to exercise its judgment and pass an enactment that would be enforceable within Bombay. The Court noted that the power to extend, mutatis mutandis, the laws contained in sections 8 and 9 of Act XXII of 1869 implied adaptation by modification, but only to the extent necessary for the purpose. Accordingly, the Court concluded that, to the extent section 7 of the Delhi Laws Act authorises the Central executive government to apply any law enacted by a Provincial legislature to the Province of Delhi, that authority exceeds the limits of the Central Legislature’s power. In this respect, the Central Legislature had abdicated its legislative function, rendering that portion of the Act invalid. The Court then turned to the second question concerning the Ajmer-Merwara (Extension of Laws) Act. Until the Government of India Act, 1915, India was governed by a unitary system. The 1915 Act conferred legislative powers upon Provincial legislatures, yet it did not allocate legislative competence between the Centre and the Provinces; such a distribution was introduced only by the Government of India Act, 1935. Section 94 of the 1935 Act listed the Chief Commissioner’s Provinces, which included Delhi and Ajmer-Merwara. Although sections 99 and 100 of the same Act distributed legislative powers between Provinces and the Centre, the term “Province” did not encompass a Chief Commissioner’s Province, leaving the Central Legislature as the sole law-making authority for those territories.

The Court explained that the authority for the Chief Commissioner’s Provinces derived from the Ajmer-Merwara Act, which had been enacted under the Government of India Act as it was adapted by the Indian Independence Act. Although the Independence Act removed the British Parliament’s control over the Government of India and the Central Legislature, the powers of the Central Legislature remained essentially those provided in the Government of India Act, 1935. Consequently, the Independence Act did not alter the issue of whether the power of delegation was included within the legislative power. The Court therefore held that if section 7 of the Delhi Laws Act is declared ultra vires, then section 2 of the Ajmer-Merwara Act, 1947 must also be regarded as ultra vires. Turning to the third question, the Court noted that section 2 of the Part C States (Laws) Act, 1950 was enacted by the Indian Parliament. Under article 239 of the Constitution of India, all powers relating to the administration of Part C States are vested in the President, while article 240 empowers Parliament to create, for any Part C State administered by a Chief Commissioner or Lieutenant Governor, either a body—whether wholly nominated, wholly elected, or partly nominated and partly elected—to function as a legislature, or a Council of Advisers or Ministers. The Court observed that, to date, Parliament had not passed any law establishing such bodies. Article 246 governs the distribution of legislative powers between the centre and the States, but Part C States fall outside its ambit; consequently, on any matter affecting a Part C State, Parliament remains the sole and exclusive legislator until it enacts a law creating a legislature or a council as contemplated by article 240. Assuming, as the Attorney-General contended, that a legislative power does not inherently include a power of delegation, the Court examined whether section 2 of the Part C States (Laws) Act is constitutionally valid. Section 2 authorises the Central Government, by notification, to extend to any part of a Part C State, with such restrictions and modifications as it deems appropriate, any enactment that is in force in a Part A State at the time of the notification. Although this provision is modeled on the Delhi Laws Act and the Ajmer-Merwara Act, its scope is limited because the executive may extend only an Act that is already operative in a Part A State. Since the Court had previously held certain provisions of the sections examined in Questions 1 and 2 to be ultra vires, it concluded that the portion of section 2 of the Part C States (Laws) Act, 1950 which empowers the Central Government to extend laws passed by any legislature of a Part A State is likewise ultra vires. Moreover, insofar as the Central Legislature or Parliament has enacted statutes applicable to Part A States, there can be no objection to the Central Government extending, if necessary, the operation of those statutes to the Province of Delhi, because Parliament is the competent legislature for that Province. However, to the extent that the provision permits the Central Government to extend laws made by any legislature of a Part A State to the Province of Delhi, that portion of the provision is ultra vires.

The Court observed that there could be no objection to the Central Government extending, if it proved necessary, the operation of those Acts to the Province of Delhi, because the Parliament alone possessed the legislative competence for that Province. However, the Court held that to the extent the provision in section 2 of the Part C States (Laws) Act, 1950, authorised the Central Government to extend laws made by any legislature of a Part A State to the Province of Delhi, that provision was beyond the authority of Parliament and therefore ultra vires. In view of the conclusion reached concerning the first limb of section 2, the Court found it unnecessary to examine separately the other limb of the same section that deals with the power to repeal or amend a law currently applicable to that Part C State. The Court also recorded its appreciation of the diligent assistance rendered by the Attorney-General and the counsel appearing for the parties to the Reference, noting that their thorough collection and fair presentation of all relevant material greatly aided the Court’s consideration of the issues.

The Court then answered the three questions that had been referred by the President under article 143 of the Constitution of India. It held that each of the three sections mentioned in the questions was ultra vires the legislatures functioning at the relevant dates, insofar as the provisions gave the executive the power to extend Acts other than those enacted by the Central Legislature, as explained in the judgment. The answer to the three questions, the Court said, depended upon a more fundamental issue that had been the subject of extensive argument before the Court: whether a legislature that is sovereign or possesses plenary powers within its assigned field may delegate its legislative functions to an executive authority or another agency, and, if so, to what extent such delegation is permissible. In addressing this issue, the Court identified three possible approaches: (1) a sovereign legislature enjoys unlimited authority to delegate, including the power to delegate legislative functions; (2) delegation is permissible only within certain limits; and (3) delegation of legislative power is altogether impermissible on the basis of well-recognised legal principles.

The Court indicated that it would first consider the third alternative, while cautioning that the terms “delegated legislation” and “delegation of legislative authority” would be used in a loose, popular sense rather than in the strict technical sense that would be explained later. One of the principles invoked to argue that legislative power cannot be delegated is the maxim “delegatus non potest delegare,” which in plain language means that a delegated authority cannot further delegate its powers, or that one agent may not lawfully appoint another to perform the duties of agency. The Court noted, however, that this maxim has only a limited application even within the law of contract or agency, being confined to situations where the agency relationship is of a confidential nature and the authority involves discretion or confidence. Consequently, the maxim does not automatically preclude every form of legislative delegation, and its relevance must be examined in the specific context of legislative authority.

In the field of contract or agency law the maxim that a delegated authority may not further delegate is often cited, but its application is limited to situations where the agency contract is of a confidential nature and where the authority given includes discretion or confidence. Consequently persons such as auctioneers, brokers, directors, factors, liquidators and other individuals who occupy fiduciary positions are normally not presumed to have the power to appoint deputies or sub-agents on their own authority. The statement of this rule appears in Broom’s Legal Maxims and in many other legal texts, and those texts also note that in certain cases the law does imply a power to employ agents. When the same maxim is applied to the actions of a legislative body, the first question that must be answered is “who is the principal and who is the delegate?” In a number of earlier cases the courts were asked to consider whether an Indian or a colonial legislature acted as a delegate of the British Parliament, the argument being that the imperial legislature had transferred to the colonial legislature the authority to make laws. The Privy Council has rejected that argument on more than one occasion, as shown by the following excerpts from two leading authorities. In Reg. v. Burah [3 App. Cas. 889] the Court observed: “The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can of course do nothing beyond the limits which circumscribe these powers. But when acting within those limits it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself.” In Hodge v. The Queen [9 App. Cas. 117] the Court further explained: “It appears to their Lordships, however, that the objection thus raised by the appellants is 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 any mandate from the Imperial Parliament. When the British North 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 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 of its power possessed and could bestow. Within these limits of subjects and areas the Local Legislature is supreme, and has the same authority as the Imperial Parliament.” The discussion then turns to a further suggestion made by some writers that a legislature may be a delegate of the people or of the electors; that suggestion has also been rejected by several constitutional scholars, and it is followed by Dicey’s comments on parliamentary sovereignty with reference to the Septennial Act.

Dicey explains that, from a legal standpoint, Parliament cannot be described as an agent of the electors nor as a trustee for its constituents; rather, it possesses the sovereign legislative authority within the State, and the Septennial Act serves both as a consequence of that sovereignty and as ongoing evidence of it (Dicey, Law of the Constitution, 8th ed., p. 45). The same learned author further observes that judges are unaware of any popular will except insofar as that will is manifested through an Act of Parliament, and judges would never allow the validity of a statute to be challenged on the basis that it was enacted or maintained contrary to the wishes of the electorate (Ibid., p. 72). There can be no doubt that individual members of a legislature represent the majority of the voters who elected them, yet the legislature as a collective body cannot be characterized as an agency of the entire electorate. While each member may belong to different political parties and may express varying shades of opinion, the assembled legislature exercises its law-making power on the authority derived from the Constitution, and its enactments cannot be questioned by the electorate, nor can the electorate withdraw that legislative power on any specific subject. As Dicey points out, the only legal right of electors under the English Constitution is to vote for members of Parliament; they possess no legal authority to initiate, endorse, or repeal parliamentary legislation (Dicey, Law of the Constitution, 8th ed., p. 57). Consequently, it is not entirely accurate to describe the legislature as an agent of its constituents whose powers are therefore limited by the Latin maxim previously referenced. The author notes that this issue will be revisited when a related principle is examined. The second principle relied upon in the discussion is the well-known doctrine of the separation of powers. Although the doctrine is said to have origins in Aristotle, it received its most prominent articulation from Locke and Montesquieu. Montesquieu himself described the doctrine as follows: “In every government there are three sorts of power, the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law… When the legislative and the executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may rise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and the executive. Were it …”

In this discussion, the Court observed that if the judicial power were merged with the legislative power, the life and liberty of individuals would be subjected to arbitrary control because the judge would also act as legislator. Likewise, if the judiciary were combined with the executive, the judge might behave with violence and oppression. The Court cited Montesquieu’s statement that a single person or body, whether noble or popular, should not exercise the three powers of making laws, executing public resolutions, and adjudicating individual disputes, as such concentration would end liberty. The citation referred to Montesquieu’s Spirit of Laws, volume 1, edited by J. V. Pritchard, 1914 edition, pages 162-3. The Court noted that the doctrine of separation of powers attracted many supporters in America and was virtually elevated to a legal principle there. It recalled George Washington’s farewell address, wherein Washington warned that the spirit of “encroachment” tended to concentrate all governmental powers in one and thereby create a real despotism. The Court also quoted John Adams, who wrote that only by balancing each of the three powers against the other two could the tendency toward tyranny be restrained and freedom preserved; the reference was to Adams’s collected works, volume I, page 186. The Court further pointed out that these ideas were fully reflected in the constitutions of the individual states and in the Federal Constitution of the United States. It cited the Massachusetts Constitution of 1780, which declared that the legislative department would never exercise executive or judicial powers, the executive would never exercise legislative or judicial powers, and the judicial would never exercise legislative or executive powers, so that government would be of laws and not of men; the source was Willoughby’s Constitution of the United States, volume III, 1616. The Court mentioned that the constitutions of thirty-nine other states were drafted on similar lines. Although the Federal Constitution did not expressly state a separation of powers, the three articles assigning legislative power to Congress, judicial power to the Supreme Court, and executive power to the President led to the rule that each branch’s power could not be vested in another branch nor could one branch interfere with another’s power. The Court quoted Sutherland J. in Springer v. Government of the Philippine Islands [277 S. 189 at 201], stating that, as a general rule inherent in the American constitutional system, unless expressly provided, the Legislature cannot exercise executive or judicial power, the Executive cannot exercise legislative or judicial power, and the Judiciary cannot exercise executive or legislative power. From this rule, the Court indicated that the next logical deduction was the rule against delegation of legislative power, which had been emphasized in earlier American decisions.

The early American jurisprudence had emphasized a strict rule against the delegation of legislative power. Nevertheless, it soon became apparent that an absolute prohibition could not be maintained in practical governance. As early as 1825, Chief Justice Marshall openly acknowledged that the rule was subject to limitations, asserting that Congress could, in fact, delegate to others powers that the Legislature itself could lawfully exercise, as recorded in Wayman v. Southard (1825) 23 U. S. 43. Over time, despite the longstanding maxim opposing delegation, the scope of delegated authority expanded to such an extent that a writer in 1916 remarked that “because of the rise of the administrative process, the old doctrine prohibiting the delegation of legislative power has virtually retired from the field and given up the fight” (41 American Bar Asscn. Reports, 356 at 368). This observation, however, may exaggerate the reality, because American judges have continued to vigilantly scrutinise any undue or excessive delegation to the executive. Recent Supreme Court decisions illustrate this vigilance, notably Panama Refining Co. v. Ryan, 293 U.S. 388, and Schechter Poultry Corp. v. United States, 295 U.S. 495. In Schechter, the Court held that the National Industrial Recovery Act was unconstitutional to the extent that it conferred upon the President the authority to adopt and enforce codes of fair competition for each industry, thereby constituting an impermissible delegation of legislative power. Justice Cardozo explained that the delegated legislative power expressed in the code was “not canalized within banks that keep it from overflowing. It is unconfined 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 commission to inquire into evils upon discovery to correct them… This is delegation running riot. No such plenitude of power is capable of transfer” (295 U.S. 495 at 551).

Nonetheless, American courts have upheld what is commonly referred to as delegated legislation in many instances, creating a considerable gap between the theoretical doctrine and its practical application. The breadth of exceptions to the rule can be seen in an extensive footnote appended to the report of Panama Refining Co. v. Ryan in the Lawyers’ Edition, page 448, where the authors categorise upheld delegations under eight principal headings, each with several sub-headings. The categories are: (1) delegation of power to determine facts or conditions on which the operation of a statute depends; (2) delegation of non-legislative or administrative functions; (3) delegation of power to make administrative rules and regulations; (4) delegation to municipalities and local bodies; (5) delegation by Congress to territorial legislatures or commissions; (6) delegation to private or non-official persons or corporations; (7) vesting discretion in the judiciary; and (8) adoption of the law or rule of another jurisdiction. These classifications illustrate the numerous ways in which American jurisprudence has carved out permissible delegations, despite the underlying principle that legislative power is not to be transferred indiscriminately.

The discussion identified several categories of delegation that had been recognized. These included delegation to a territorial legislature or commission, delegation to private or non-official persons or corporations, vesting discretion in the judiciary, and the adoption of a law or rule from another jurisdiction. The commentary noted that American judges, when outlining exceptions to the general prohibition against delegating legislative power, have provided a variety of explanations, several of which are reproduced here as illustrative samples.

One quotation observes that although the distinction between legislative and executive action cannot be drawn with mathematical precision, it is not necessary to divide the branches into completely separate compartments, nor does the Constitution demand such a strict separation. The passage, attributed to Justice Holmes in the case of Springer v. The Government of the Philippine Islands, reads: “however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires.”

Another passage, drawn from Mutual Film Corporation v. Industrial Commission, cautions that attempting to detail every administrative or fact-finding assistance would create confusion in the law and would produce statutes that are deficient both in their provisions and in their execution. The quote states: “too much effort to detail and particularize, so as to dispense with the administrative or fact-finding assistance, would cause great confusion in the laws, and would result in laws deficient in both provision and execution.”

A further observation warns that if a legislature were required to provide for every minute regulatory detail, it would effectively lose the ability to enact effective legislation on subjects over which it unquestionably has authority. The same source continues: “If the legislature were strictly required to make provision for all the minutiae of regulation, it would, in effect, be deprived of the power to enact effective legislation on subjects over which it has undoubted power.”

In an older decision, Locke’s Appeal (1873, 72 Pa. 491) explained that while the legislature cannot delegate its power to make law, it may enact a law that delegates authority to determine certain facts or states of affairs upon which the law’s operation depends, noting that denying this would “stop the wheels of government.”

Justice Ranney, speaking in Cincinnati W. and Z.R. Co. v. Clinton County Commissioners, distinguished between delegating the power to make law—which necessarily involves discretion about the law’s content—and delegating authority for execution, stating that the former cannot be done while the latter is permissible. The quotation reads: “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 exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”

In Moore v. Reading (21 Pa. 202), the Court observed that many statutes are framed in the alternative, relying on the discretion of appointed persons to decide when the statutes should be applied, yet clarified that exercising such discretion does not amount to making law. The passage states: “Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of law.”

The United States v. Shreveport Grain and E. Co. decision affirmed that Congress may set a primary standard and then delegate to administrative officers the authority to fill in the details by prescribing administrative rules and regulations. The quotation explains: “Congress may declare its will and, after fixing a primary standard, devolve upon administrative officers the power to fill up the details by prescribing administrative rules and regulations.”

Finally, a broader statement on constitutional flexibility emphasizes that the Constitution does not forbid Congress from using practical resources that allow it to establish policies and standards while permitting selected agencies to create subordinate rules within defined limits and to determine the factual basis upon which those policies depend.

In the passage quoted from the decision of Hughes C.J. in Panama Refining Co. Ryan, the Court observed that the legislative declaration must be applied and that, without the power to grant such authorisations, the legislature would possess a power that, in many situations where it should be exercised, would be merely futile. The Court also cited Taft C.J. in J. W. Hampton Jr. & Co. v. United States, noting that this statement was not intended to imply that the three branches of government were not co-ordinate parts of a single government, nor that each branch, while performing its duties, could not call upon the action of the other two branches, provided that such invocation did not amount to an assumption of the constitutional field of action belonging to another branch.

The author of the opinion explained that he quoted these extracts despite the risk of burdening his argument for two reasons. First, the extracts demonstrate that, although the doctrine of separation of powers was widely accepted in the United States, the rule against delegation of legislative power was not rigid there; several distinguished judges had attempted to give the rule a practical orientation so that it would suit the requirements of contemporary administration. Second, the extracts show that the rule against delegation did not necessarily follow from the doctrine of separation of powers. The author then turned to the Australian context, observing that the principle of separation of powers also formed the foundation of the Australian Constitution. Nevertheless, the objection that delegating legislative power was impermissible because of the constitutional distribution of powers had been raised only in a few Australian cases, and each of those objections had been rejected.

The first Australian case in which the objection was raised was Baxter v. Ah Way, reported in 1909 at 8 C.L.R. 626. In that case the validity of section 52 of the Customs Act, 1901, was challenged. Section 52, after listing certain prohibited imports, allowed for the inclusion of “all goods the importation of which may be prohibited by proclamation.” Section 56 of the same Act further provided that “the power of prohibiting importation of goods shall authorise prohibition subject to any specified condition or restriction and goods imported contrary to any such condition or restriction shall be prohibited imports.” The challenge was based on the claim that these provisions amounted to an unlawful delegation of legislative power vested by the Constitution in the Federal Parliament. Griffith C.J. rejected this contention, relying on the precedent set in Queen v. Burah (3 App. Cas. 889) and other authorities. He observed that unless the legislature was prepared to lay down, once and for all, a complete list of prohibited goods, it must retain the power to impose a prohibition based on a condition, and that condition could be the emergence or discovery of a particular fact. He further explained that if that fact served as the condition, there had to be a mechanism for ascertaining it, and the Governor-in-Council was the authority appointed to determine and declare such a fact.

The Court explained that when the freedom to import goods is to be conditioned on a particular circumstance, it is necessary to have a method for determining that circumstance and an individual or body empowered to make that determination; according to the judgment, the Governor-in-Council was designated as the authority responsible for ascertaining and declaring the relevant fact. 74. The Court then noted several other decisions in which a comparable objection was raised, namely Welebach Light Co. of Australasia Ltd. v. The Commonwealth [(1916) 22 C.L.R. 268], Roche v. Krondeimer [(1921) 19 C.L.R. 329] and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [(1931) 46 C.L.R. 73]. In the latter case, which examined the issue in considerable detail, Justice Dixon observed that “the time has passed for assigning to the constitutional distribution of powers among the separate organs of government an operation which confined the legislative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character” (p. 100). 75. Turning to English law, the Court observed that the doctrine of separation of powers has exercised only limited influence on judicial decisions and on the shaping of the Constitution, despite the strong advocacy of the principle by eminent writers such as Locke and Blackstone during the seventeenth and eighteenth centuries. Locke, in his treatise on Civil Government, wrote that “the legislative cannot transfer the power of making laws to any other hands; for it being a delegated power from the people, they who have it cannot pass it over to others” (141). 76. Blackstone endorsed Locke’s view, stating that “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” (Commentaries on the Laws of England, 1765). 77. The Court further recorded that Montesquieu, when formulating the doctrine of separation of powers, regarded it as the quintessence of the British Constitution, a view he admired greatly. Although the doctrine attracted considerable attention in England during the seventeenth and eighteenth centuries, its meaning in England eventually diverged from the interpretation it acquired in the United States of America. In the United States, the emphasis lies on the mutual independence of the three branches of Government, whereas in England the doctrine chiefly signifies the independence of the judiciary, while the development of the Cabinet system creates a link between the executive and the legislature. The Court briefly contrasted the operation of the Cabinet system in the two jurisdictions. In the United States, executive power is vested in the President, who alone is accountable to the President for the Cabinet members; neither the President nor any Cabinet member may sit or vote in Congress, nor are they responsible for initiating legislation or securing its passage. In England, the Cabinet is a body consisting of members of Parliament chosen from the party possessing a

In England the Cabinet is formed from the party that holds the majority in the House of Commons. The Cabinet therefore enjoys a decisive influence over the legislative work of Parliament, because it introduces the most important bills through the various Ministers who head the departments. This arrangement leads to the observation that, although Parliament formally retains supreme authority to make or repeal laws, once a government obtains office it generally exercises considerable control over the Parliament that elected it. The Court then turned to the question of whether the rule that forbids a legislature from delegating its law-making power is a necessary consequence of the doctrine of separation of powers. It observed that, in the United States, jurists have treated the anti-delegation rule as a direct corollary of that doctrine, but that, strictly speaking, such a link is not inevitable. The Court noted that American practice has progressively relaxed the rule, and that extensive justifications have been offered for permitting delegations. Moreover, the recent line of Australian decisions, despite the Australian Constitution’s theoretical grounding in separation of powers, shows that the principle does not prevent delegation where appropriate circumstances exist. The Court pointed out that the division of governmental powers has become a customary feature of every modern constitution, and cited Rich J.’s comment in New South Wales v. Commonwealth that this division is “well-known in all British communities”. Yet, apart from the United States, no jurisdiction has held that the mere existence of a separation of powers doctrine automatically prohibits the legislature from delegating its legislative functions. Consequently, the Court concluded that American jurists have gone too far in treating the anti-delegation rule as an inevitable outgrowth of the separation of powers doctrine.

The Court then proceeded to discuss the principal justification for the anti-delegation rule. It identified a third principle, which it regarded as the true foundation of the rule, and referred to the commentary of Cooley in his work Constitutional Limitations. Cooley states that a settled maxim of constitutional law holds that the power granted to a legislature to enact laws may not be transferred to any other body or authority. He explains that wherever the sovereign authority of the State has placed legislative power, that authority must remain where it was located, and that only the constitutional agency itself may make laws until the constitution is altered. Cooley further observes that the legislature, having been entrusted with judgment, wisdom and patriotism, cannot relieve itself of responsibility by assigning that power to other agencies, nor may it replace its own judgment with that of another body, which the people have alone chosen to hold this sovereign trust. In a later passage of the same author’s fourth edition of Constitutional Law, he reiterates that no legislative body may delegate either a general or a special power to make laws to another department of government or any other authority, because the very existence of the legislature’s own powers is the reason for this restriction. The high prerogative that has been entrusted to the legislature therefore cannot be abdicated or transferred to a parallel institution that would perform the core legislative duty entrusted to it by the people.

In the passage under consideration, the Court explained that the legislative power is vested in the legislature itself, to be exercised according to its own wisdom, judgment and patriotism, and not according to the wishes of other persons. The Court warned that any attempt by the legislature to delegate that trust to another body, rather than to execute it itself, would be ultra vires. The Court observed that this principle, in a broad sense, reflects the maxim that a delegated authority cannot further delegate (delegatus non potest delegare). The Court cautioned that the principle is often misunderstood and has indeed been misinterpreted in the past. According to the Court’s own view, the rule simply means that the legislature may not abandon its legislative functions, nor may it erase its own existence by creating a parallel legislature to perform the primary duty that has been entrusted to it.

The Court noted that this rule has been recognised in both American and English jurisprudence. The Court cited the words of Hughes C.J., who said that “The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested” (293 U.S. 421). The Court further referred to the observations of Evatt J. in the cases Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Neakes v. Dignan (46 Com. L.R. 73 at 121). Evatt J. stated that, on a final analysis, the Parliament of the Commonwealth cannot “abdicate” its legislative powers. The Court clarified that this limitation does not arise because Parliament is obliged to exercise every legislative power it possesses – Parliament may choose not to act – nor does it stem from the doctrine of separation of powers, which does not prevent Parliament from authorising other bodies to make bylaws, since Parliament frequently does so in statutes. Rather, the limitation exists because every law passed by Parliament must fall within the subject-matter descriptions set out in the Constitution; a law that transferred the entire law-making authority to another body would fail this constitutional test.

The Court then turned to the judgment of Lord Haldane in In re the Initiative and Referendum Act ([1919] A.C. 935 at 945). Lord Haldane held that a body possessing legislative power over subjects assigned to it, such as a provincial legislature in Canada, may seek assistance from subordinate agencies while preserving its own capacity, as illustrated in Hodge v. The Queen where the Ontario Legislature delegated regulatory authority over taverns to a Board of Commissioners. However, Lord Haldane emphasized that this does not allow the legislature to create a new legislative power that is not conferred by the empowering Act. The Court concluded that determining what amounts to abdication and identifying the class of cases that fall within that concept will always depend on the facts of each situation. No universal formula can be laid down, but the Court affirmed that the rule against abdication does not forbid the legislature from using any subordinate agency of its choice to carry out subsidiary acts that are necessary to make its legislation effective, useful and complete.

The Court observed that a legislature is entitled to select a subordinate agency to carry out subsidiary acts that are necessary to make its legislation effective, useful and complete. Having examined the three principles that are said to prohibit the delegation of powers, the Court then turned to the argument advanced by the learned Attorney-General that the power to delegate is inherent in the power to legislate. This argument rests on the doctrine of legislative sovereignty within the sphere of authority that the legislature has been assigned. The Court noted that writers on constitutional theory have described sovereignty in various ways and have sometimes distinguished between legal sovereignty and political sovereignty. One commentator defines legal sovereignty as the power to make laws and to enforce them by whatever coercive measures the sovereign chooses, and further observes that in England the legal sovereign – that is, the person or persons who, according to English law, legislate and administer the Government – is the King in Parliament, whereas the political or constitutional sovereign – that is, the body in whom ultimate power resides – is the electorate or the voting public. The Court then cited Dicey’s description of legal sovereignty as the unrestricted power of law-making, stating that if the term is used in this sense, the sovereign authority under the English Constitution is Parliament. Dicey’s principal characteristic of such sovereignty, the Court quoted, is that “there is no law which Parliament cannot change,” and that even fundamental or constitutional laws are altered by Parliament in the same manner as ordinary statutes, and that an enactment passed by Parliament cannot be declared void. The Court further outlined Dicey’s criteria for a non-sovereign law-making body: first, that there exist laws which the body must obey and cannot alter; second, that a clear distinction is drawn between ordinary and fundamental laws; and third, that some individual or body, judicial or otherwise, possesses the authority to determine the validity or constitutionality of the laws that the body enacts. Regarding the Indian or colonial legislatures, Dicey described them as non-sovereign, observing that their authority to make laws is wholly subordinate to, and dependent upon, Acts of Parliament in the same way that the London and North-Western Railway Company’s power to make bye-laws is dependent upon the parent Act. The Court held that this description is an overstatement and does not apply to the present Indian Parliament. While acknowledging that today’s Parliament may not possess the same breadth of sovereignty as the British Parliament, the Court affirmed that it is at least as sovereign as the United States Congress and the legislatures of other independent federations. Finally, the Court noted that Dicey himself, when discussing colonial legislatures, remarked that “they are in short within their own …”

In this passage the Court observed that the Legislative Council of 1912, which enacted the Delhi Laws Act, 1912, functioned as a body whose authority derived from being a copy of the Imperial Parliament, yet it operated within its own sphere as a sovereign entity whose freedom of action was limited by its subordination to the United Kingdom Parliament. The Court further explained that the same description continues to apply to the present Parliament, with the only material alteration that the present Parliament’s freedom of action is no longer restrained by subordination to the British Parliament but is instead governed by the Indian Constitution.

The Court then found it useful to refer to several decisions of the Privy Council in England that directly addressed the scope of power exercised by Indian and other colonial legislatures. The principal authority on this point is the case of Queen v. Burah, reported in the Indian Appeals series at page 178, which the Court has cited on more than one occasion and which has been accepted as persuasive authority. In that case the issue was whether a provision of Act No. XXII of 1869, which authorised the Lieutenant-Governor of Bengal to decide whether a law or any portion of it should be applied to a particular territory, was beyond the powers granted to the legislature. The Privy Council held that the provision was intra vires and, in doing so, made several observations that the Court quoted again because they remain highly relevant.

The Privy Council first noted that the Indian Legislature was not a mere delegate of the Imperial Parliament, and therefore the maxim “delegatus non-potest delegare” did not apply. Their Lordships then stated that the Governor-General in Council could not, by any enactment, create a new source of legislative authority in India that was not already provided for by the Councils Act. They clarified that no such creation had occurred in the case before them. Instead, the Governor-General in Council, acting in the ordinary course of legislation, had decided to remove a specific district from the jurisdiction of the ordinary courts and offices and to place it under new courts and offices appointed by, and answerable to, the Lieutenant-Governor of Bengal. The Governor-General also authorised the Lieutenant-Governor to determine the timing of that transfer and, rather than permitting him to make any laws he wished for that district or any other, to allow him to apply, by public notification, any law or part of a law that was already in force or might later come into force under proper legislative authority in the territories subject to his government.

Subsequently the Privy Council added that the proper legislature had exercised its judgment with respect to the place, the persons, the laws and the powers involved, and that the result of that judgment was conditional legislation covering all those elements. Once the conditions that had been specified were satisfied, the legislation became absolute. The Court emphasised that where a legislature possesses plenary power over a particular subject, it may exercise that power either absolutely or conditionally, and that conditional legislation – which delegates limited discretion to trusted persons – is a common and convenient feature of legislative practice, as demonstrated throughout the British statute book and contemplated by the Imperial Parliament when it constituted the Indian Legislature.

The Court observed that powers of legislation concerning particular subjects may exist in either an Imperial or a provincial legislature, and that, in the Court’s judgment, such powers can be exercised either absolutely or conditionally. It noted that legislation which is conditional upon the use of specific powers or upon the exercise of a limited discretion that the Legislature entrusts to persons it trusts is not uncommon, and that in many situations such conditional legislation is highly convenient. The Court further pointed out that the British Statute Book contains numerous examples of this practice, and it could not be assumed that the Imperial Parliament, when it created the Indian Legislature, had not contemplated such conditional legislation as being within the scope of the legislative powers that it periodically conferred. 89 The next case considered on this subject was Russell v. The Queen [7 App. Cas. 829]. In that case the Canadian Temperance Act of 1878 was challenged on the ground that it exceeded the authority of the Parliament of Canada. The Act provided that it would come into force in any county or city only if, after a vote of the majority of the electors of that county or city in favour of the measure, the Governor-General in Council declared the relevant part of the Act to be in force. The Privy Council held that this provision did not amount to a delegation of legislative power to a majority of the voters in a city or county. The Court quoted the passage that clarified this point, stating: “The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters 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 on these persons power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency… If authority on this point were necessary, it will be found in the case of Queen v. Burah, lately before this Board.” 90

The same doctrine was reaffirmed in Hodge v. the Queen [9 App. Cas. 117]. The issue in that case was whether the legislature of Ontario possessed the authority to entrust a local body—the Board of Commissioners—with the power to make regulations under the Liquor Licence Act, 1877, a statute that among other things created offences for breaches of those regulations and attached penalties to them. The Court held that the Ontario Legislature did have such power, and after emphasizing that the Legislature that passed the Act was not a delegate, it observed: “When the British North America Act enacted that there should be a legislature for Ontario, and …”

The Court observed that when the British North America Act provided that a province’s legislative assembly should have exclusive authority to enact laws for that province and for provincial purposes in respect of the matters listed in section 92, it granted powers that were not to be exercised by delegation from or as agents of the Imperial Parliament. Rather, the Act conferred plenary and ample authority within the limits prescribed by section 92, authority that the Imperial Parliament could itself bestow in the fullness of its own powers. Within those subject-matter limits, the provincial legislature was described as supreme, possessing the same capacity that the Imperial Parliament or the Dominion Parliament would have had in similar circumstances to entrust a municipal institution or a body of its own creation with the power to make bye-laws or resolutions on the subjects specified in the enactment, for the purpose of giving effect to the legislation.

The Court then referred to the case of Powell v. Apollo Candle Co. [10 App. Cas. 282], in which the issue was whether section 133 of the Customs Regulations Act of 1879 of New South Wales was ultra vires the colonial legislature. Section 133 provided that when an article of merchandise unknown to the collector was imported and appeared to be a substitute for a known dutiable article, or seemed designed to evade duty but possessed qualities or uses similar to the dutiable article, the Governor could direct that a duty be levied on the unknown article in proportion to its similarity to the dutiable item. After rejecting the contention that the colonial legislature acted merely as a delegate of the Imperial Parliament, the Privy Council examined the matter and held that, although the tax was imposed by the Governor, it was effectively levied under the authority of the Act that authorised the order. The Council emphasized that the legislature had not relinquished its complete control over the Governor and retained the power at any time to withdraw or alter the authority it had conferred. Accordingly, the Council concluded that the Supreme Court’s judgment declaring section 133 beyond the legislature’s power was erroneous.

The Court noted that several other authorities had been cited at the Bar to illustrate the principle that a legislature, even if non-sovereign under Dicey’s tests, remains supreme within its constitutionally assigned field, and that it was unnecessary to repeat the many examples that support this doctrine.

It was observed that the earlier decisions confirming the applicability of the principle to its operation were well established, and the Court considered it unnecessary to repeat numerous examples that illustrated the same rule. Nevertheless, the Court chose to reproduce the pronouncement of the Privy Council in the relatively recent case of Shannon v. Lower Mainland Dairy Products Board [[1938] A.C. 708 at 722]. The Privy Council had stated that the third objection put forward was that a Provincial Legislature could not delegate so-called legislative powers to the Lieutenant-Governor in Council or empower him to further delegate those powers. The Council regarded that objection as contrary to the rights of the Provincial Legislature when it dealt with subjects for which the Constitution had granted legislative authority. Within its assigned sphere, the Provincial Legislature was described as being as supreme as any other Parliament, and the Council deemed it unnecessary to list the countless occasions on which Provincial, Dominion and Imperial Legislatures had entrusted similar powers to various persons and bodies under statutes like the one in question.

The Court then paused to outline several important principles that could be drawn from the Privy Council decisions cited earlier, apart from the general rule that Indian and colonial legislatures were supreme within their own fields and that the maxim “delegatus non potest delegare” did not bind them. First, the Privy Council appeared reluctant to endorse a blanket statement that delegated legislation was permissible; instead, it preferred to show that the provisions under challenge were not delegations of legislative authority but rather forms of conditional legislation that the respective legislatures were competent to enact. The Council also explained that assigning certain powers to subordinate agencies was ancillary to the primary legislation and that without such delegation the effort to provide detailed mechanisms for implementation could become oppressive or fail entirely. The Council laid down three specific points: (1) it was inaccurate to label conditional legislation and similar statutes, which the Council examined in several cases, as legislation passed through another agency, because each impugned Act contained within itself a complete legislative scheme, setting out the condition and all subsequent measures contingent upon that condition; (2) legislative power could not be said to have been relinquished where the legislature retained the ability to revoke the agency it had created, replace it, or assume the matter directly; and (3) the extent to which legislatures might rely on subordinate agencies and the duration for which such agencies should continue were matters to be determined by each legislature, not for the courts to decide.

In assessing the limits of legislative competence, the Court observed that the power to decide on legislative matters belongs to each legislature and not to the courts. The Court further noted that when a legislature delegates important regulations to another body it does not nullify its own authority, and that a legislature, like the Governor-General in Council, cannot by any enactment create a new legislative power that is not authorized by the statute that gives the Governor-General its existence. The Court then explained that the terms “delegated legislation” and “delegating legislative power” are employed in two different ways. In many treatises and reports these terms are used loosely, and if that loose meaning were applied to the cases before the Privy Council, every case would appear to involve delegated legislation. However, the Privy Council consistently rejected that characterization, holding that the cases before it were not examples of delegated legislation. The Court clarified that a true delegation in the strict sense occurs only when the legislature completely abdicates its functions and establishes a parallel legislature that receives the entire legislative authority. In such a circumstance the whole legislative power, with all its attributes, is transferred to another authority. By contrast, the Privy Council repeatedly emphasized that where the legislature retains its dominant power, can at any time dissolve the agency it has created, replace it with another, or resume the matter itself, it has not relinquished its legislative power. Moreover, the Court observed that an act carried out by a subordinate authority lacks the genuine legislative character when its effectiveness derives not from the subordinate body itself but from the legislature that authorised it. In several cited cases the Privy Council referred to the nature and principles of legislation, noting that conditional legislation merely entrusts a limited discretionary power to others, and that employing subordinate agencies to achieve legislative objectives is ancillary to legislation and lies within the essential powers of any legislature. The Court also mentioned that extensive American literature discusses so-called delegated legislation, and that, although some American judges have used the term in the popular sense, many have been as cautious as the Privy Council in defining the principles, concluding that, when a provision was challenged on the ground of unlawful delegation, the legal conclusion was that no such delegation existed under the law.

In this case, the Court noted that the authority on which the earlier conclusion rested was the proposition that, in law, there was no delegation of legislative power. The learned Attorney-General then relied on the judgment of Evatt J., who had held that “the true nature and scope of the legislative power of the Parliament involves as part of its content power to confer law-making power upon authorities other than Parliament itself” (see the Victorian Stevedoring case, 46 Commonwealth Law Reports 73). While it is indisputable that a sovereign legislature enjoys broad freedom of action within its sphere, the Court observed that, from a strict legal point of view, Evatt J.’s dictum is neither precise nor accurate. The first issue it raises is the definition of law-making power and whether that power, in its true sense, can be delegated at all. A further difficulty is that if delegation of law-making power is taken as an inherent aspect of legislative authority, it becomes hard to determine the exact point at which the legislature must cease to delegate. The question then arises whether the legislature may delegate one percent, ten percent, or even ninety-nine percent of its power, and whether logic would not permit the conclusion that, in some cases, the legislature could delegate the entire content of its authority. The Court considered that the correct legal approach is the one articulated by the Privy Council in several decisions. The Privy Council explained that, for a legislature to function effectively, it must gather sufficient data, legislate for present and future needs, and accommodate a variety of situations that may be difficult to foresee. To achieve these objectives, the legislature may employ various types of legislation, entrusting appropriate agencies with the power to fill in details and adapt the law to changing circumstances. Consequently, the doctrines of conditional legislation and subordinate legislation—whereby subordinate authorities are empowered to make rules and regulations to give effect to the purpose of an enactment—have been recognised as permissible, on the principle that a legislature may undertake any measure that is ancillary to or necessary for effective legislation. Once this principle is accepted, the legislature may adopt any other form of delegated legislation, provided it remains within the limits of its constitutional power, whether those limits are imposed externally or arise from the nature of the duties to be performed. The Court then summarised its conclusions, first stating that the legislature must normally discharge its primary legislative function itself and not through others.

The Court observed that once a legislature has been shown to possess sovereign authority within a particular domain, it follows logically that the legislature may exercise that authority in whichever manner it deems most appropriate to achieve its purpose and policy aims. In doing so, the legislature is permitted to enlist external agencies to the extent it finds necessary, either because the legislature itself lacks the capacity to perform certain functions or because it considers it more convenient to delegate those functions. Consequently, the legislature may undertake any act that is ancillary to and required for the complete and effective exercise of its legislative power. However, the Court stressed that the legislature cannot abandon or relinquish its core legislative responsibilities. When it delegates authority, the legislature must ensure that the external body functions strictly as a subordinate authority and does not emerge as a parallel legislature possessing independent law-making capacity. The Court further noted that the doctrine of separation of powers, as interpreted by American courts since the adoption of the American Constitution, permits those courts to scrutinise excessive delegation of legislative power. Indian courts, the Court explained, are not bound by that American doctrine and therefore cannot apply it in the same manner. In the Indian context, the Court identified only two principal checks on legislative delegation: the requirement that the legislature exercise sound judgment and the principle that delegation must not extend to a point where it amounts to abdication of legislative responsibility or self-effacement.

The Court then set out the specific issues to be resolved in the present Reference. First, it asked whether section 7 of the Delhi Laws Act, 1912, or any of its provisions, exceeded the authority of the legislature that enacted the Act. Second, it inquired whether the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions, was ultra vires the legislature that passed it. Third, it examined whether section 2 of the Part C States (Laws) Act, 1950, or any of its provisions, was ultra vires the Parliament. Before addressing these questions, the Court provided a concise historical overview of the composition and powers of the Indian Legislature at the time the three Acts were passed. It noted that earlier governance placed the power to frame regulations and ordinances for the effective administration of factories and territories acquired in India in the executive Government. Up to the year 1833, law-making was conducted by the Governor-General in Council or by the Governors of Madras and Bombay acting in Council, primarily in the form of regulations. The Charter Act of 1833 expanded the Governor-General’s Council by adding a fourth member, who could participate only in meetings concerned with legislative matters. That Act also vested the Governor-General in Council with authority to enact laws and regulations for the entire territory of India, while the legislative powers formerly held by the Governors of Madras and Bombay were withdrawn, although those Governors were still permitted to submit draft proposals.

The Court noted that by the Charter Act the Governor-General in Council obtained authority to enact laws and regulations throughout India, and the legislative powers previously held by the Governors of Madras and Bombay were withdrawn, although those Governors were still permitted to propose draft schemes. Every Act passed by the Governor-General in Council had to be laid before the British Parliament and was to possess the same force as an Act of that Parliament. In 1853 the composition of the Governor-General’s Council was expanded to twelve members by converting the fourth member into an ordinary member and by adding six special members whose sole function was legislative work. The Councils Act of 1861 restored legislative authority to the Governors of Madras and Bombay in Council and created a legislative council for Bengal; nevertheless the Governor-General in Council retained the power to legislate for the entire country, capable of making laws affecting “all persons and all places and things.” For legislative purposes the Council was re-structured to include six to twelve members nominated for two-year terms, of whom at least half had to be non-officials. The Governor-General’s sanction was required before any measure on certain subjects could be introduced in the Council, and a law did not become valid until the Governor-General gave his assent; the Crown alone retained the ultimate power to disallow a law. In addition, local legislatures were established for Madras and Bombay, each consisting of half non-official members nominated by the respective Governor, and any law enacted by these bodies required the assent of both the Governor and the Governor-General to acquire legal effect. A comparable legislature was also created for the lower provinces of Bengal, and powers were granted to constitute legislative councils for several other provinces.

The Court further observed that the Indian Councils Act of 1892 enlarged the existing legislative councils and conferred new rights upon their members. Subsequently, the Morley-Minto reforms of 1909 increased the strength of the legislative council by adding sixty additional members, of whom twenty-seven were elected and thirty-three were nominated. Shortly thereafter, in 1912, the Delhi Laws Act was enacted. The Court pointed out two significant features of the legislature operating under that Act. First, the legislative powers vested in it were as extensive as those of the legislature created by the 1861 Act, a point that had earlier been examined before the Privy Council in the case known as Burah’s case. Second, because the composition of the council was dominated by non-official members together with a strong executive presence, there was no practical room for the full application of the doctrine of separation of powers, and it could not be said that the doctrine prevented the legislature from empowering the Governor-General with the authorities provided under the Delhi Laws Act.

The Court observed that the Delhi Laws Act had vested certain powers in the Governor-General. In the original version of section 7 of that Act, the Governor-General was named as the authority who could, by notification, extend any enactment that was in force anywhere in British India at the date of such notification. The Court noted that, after the original enactment, the reference to the Governor-General was replaced by the term “Provincial Government.” Turning to the second statute, the Ajmer-Merwara (Extension of Laws) Act, 1947, the Court recorded that the Act was passed on 31 December 1947 while the Government of India Act, 1935, as adapted by the India (Provincial Constitution) Order, 1947, issued under the Indian Independence Act, 1947, was then in force. That Act provided three Legislative Lists – the Federal List, the Provincial List and the Concurrent List. List I covered subjects on which the Central Legislature could legislate, List II covered subjects for the Provincial Legislature, and List III covered subjects on which both could legislate. Section 100(4) of the 1935 Act stated that “the Dominion Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.” Section 46(3) clarified that, unless the context required otherwise, the word “Province” meant a Governor’s Province. By reading section 100(4) together with the definition of “Province,” the Court concluded that the Dominion Legislature was empowered to make laws for Ajmer-Merwara on every subject contained in all three Lists, because Ajmer-Merwara was not a Governor’s Province. Consequently, the Central Legislature possessed plenary authority to legislate for Ajmer-Merwara on any matter, and at the time the Act was passed the Dominion Legislature was also functioning as the Constituent Assembly with the power to frame the Constitution. The Court then examined the third statute, which was enacted after the Constitution had come into force. Article 245 of the Constitution provides that, subject to the Constitution, Parliament may make laws for the whole or any part of India, and a State Legislature may make laws for the whole or any part of the State. The Constitution, following the pattern of the Government of India Act, 1935, places subjects for Parliament and State Legislatures in List I and List II of the Seventh Schedule, while List III contains subjects on which both may legislate. Article 246(4) further declares that Parliament may make laws on any matter for any part of India even if that matter appears in the State List, provided it is not included in Part A or Part B of the First Schedule. Regarding the Part C States (Laws) Act, 1950, the Court highlighted three observations: first, the present Parliament derives its authority from the Constitution framed by the people of India through their Constituent Assembly and not from any external source, and within its constitutional field it is as supreme as any legislature in a federal system having a written constitution; second, Parliament possesses full power to legislate for the Part C States on any subject; and third, although the Constitution incorporates a degree of separation of governmental functions, the Cabinet system – a hallmark of the British Constitution – remains a feature of the Indian Constitution, and the doctrine of separation of powers, which has a far stronger hold in the United States, does not dominate the interpretation of the constitutional provisions.

It was observed that the Constitution derives its authority exclusively from the people of India, who framed it through their Constituent Assembly, and that no external authority is a source of its legitimacy; within the scope of its own field the Constitution is as supreme as the legislature of any other nation possessing a written federal Constitution. The Parliament was said to have full power to legislate for the Part C States on any subject whatsoever. Although the Constitution provides for a certain separation of governmental functions, the Cabinet system—being the most notable characteristic of the British Constitution—is also a feature of our Constitution, and therefore the doctrine of separation of powers, which never acquired the same hold or significance in India as it has in America, cannot dominate the interpretation of any constitutional provision. An argument was then referred to that relied upon articles 353(b) and 357(a) and (b) of the Constitution. Under article 353(b), when the President makes a proclamation of emergency, “the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List.” Article 357, which deals with a failure of constitutional machinery in a State, provides that “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 authority 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 … the laws used to be passed by the Governor-General in Council or by the Governors of Madras … and the imposition of duties, upon the Union or officers and authorities thereof.” In both of these articles the power of delegation is expressly conferred, and it was argued that if delegation had been contemplated in ordinary legislation, Parliament would have been given an express power comparable to that provided in articles 353(b) and 357(a) and (b). In other words, the absence of an express provision was put forward as an argument for the absence of any power of delegation. However, it was noted that these provisions are emergency provisions and do not assist in deciding the question presently before the Court. Regarding article 353(b), it was sufficient to observe that a specific provision was required to empower Parliament to make laws concerning matters in the State List on which Parliament was otherwise not competent to legislate. When Parliament was specially empowered to legislate in a field in which it

The Court observed that when the Constitution gave Parliament a special power to legislate in a field where it could not normally legislate, it was necessary to specify each power that could be exercised. Article 357(a) provides for a complete transfer of legislative authority to the President, while clause (b) deals with incidental powers that allow Parliament and the President to make laws for a State if its constitutional machinery fails. The Court noted that these provisions do not support the conclusion that delegation of power is prohibited. In fact, the Attorney-General argued the opposite, saying that the provisions show the Constitution-makers recognised that delegation is permissible when required. The Court rejected both of those conclusions as unsound.

The Court then turned to the three statutory provisions that were the subject of the Reference. The first provision is Section 7 of the Delhi Laws Act, 1912, which states: “The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.” The second provision is Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, which provides: “The Central Government may, by notification in the official gazette, extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification.” The third provision is Section 2 of the Part C States (Laws) Act, 1950, which reads: “The Central Government may, by notification in the official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restriction 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 to extend 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.”

At first glance, the Court noted that these provisions appear extraordinarily broad. Their most striking features are: (1) the statutes contain no schedule or list specifying which laws may be selected; instead, the Provincial or Central Government is given unfettered discretion to adopt any law passed anywhere in the country, whether by a Central or a Provincial Legislature; (2) the authority is not limited to laws existing on the date the Acts were passed but also encompasses future legislation; and (3) the empowered Government may not only adopt or extend the laws but also introduce any restrictions or modifications it deems appropriate, and may further make provisions for the repeal or amendment of corresponding laws applicable to the concerned State, subject to the exception that a Central Act cannot be so amended.

The Court observed that the Part C States (Laws) Act of 1950 conferred upon the Central Government the authority to insert a provision within the enactment that was being extended, so that any corresponding law—except a Central Act—currently in force in the Part C State could be repealed or amended. The Court noted that the powers granted to the Government under this and the other two statutes were extremely wide-ranged, even exceeding the scope of legislation found in England or the United States. Nevertheless, the Court held that despite the unusual characteristics of those powers, the provisions could not be declared invalid. The Court then set aside, for the moment, the question of the Government’s power to introduce modifications, promising to address it later, and turned its attention to the principal clause common to the three Acts. At the time the legislatures enacted these statutes, they faced a situation in which one or more States lacked any local legislature, yet a comprehensive set of laws needed to be supplied for those jurisdictions. The Court found that, before passing the Acts, the legislatures deliberately considered the problem and concluded first that the needs of the law-less States could be satisfied by adopting laws already applicable to other Provinces, because those laws covered a broad spectrum of subjects from diverse perspectives and therefore encompassed the requirements of the States in question. Second, the legislatures decided to entrust the task to an authority expected to be familiar with, and able quickly to become familiar with, the specific conditions and needs of the affected States. Consequently, each Act that was passed constituted a complete piece of legislation: it expressed a policy, set a standard, and instructed the chosen authority to operate within clearly defined limits, prohibiting it from exceeding those bounds. In the Court’s view, every Act represented the full expression of the legislature’s will and its directive on how that will should be implemented. The legislatures had determined that, given the circumstances, this method was the most appropriate way to legislate on the subject, and they acted accordingly. The Court rejected the characterization of such legislation as an abdication of legislative power, because the statutes clearly retained the power to withdraw, modify, or annul any authority conferred upon the designated agency, and to change or repeal the laws that the agency was required to apply to the concerned State(s). Moreover, the Court emphasized that the selected agency was never granted the power to create new laws; its role was limited to adapting and extending existing laws enacted by competent legislatures. Thus, the authority given to the Governments under the Acts was essentially ministerial in nature rather than legislative.

In the judgment, the Court observed that the statutes under consideration possessed a character that was more ministerial than legislative. The authority conferred upon the Government was described as ministerial because the Government’s role was limited to examining existing statutes and selecting those that were appropriate for application, rather than creating new law. The Court noted, at paragraph 108, that such a form of legislation was neither unjustifiable on principle nor without authority in previous cases.

The Court then turned to the well-known case of Queen v. Burah [5 I.A. 178] to illustrate that this principle had already been applied. While the facts of that case were considered familiar and therefore not repeated, the Court found it necessary to refer to section 8 of Act XXII of 1869 and to certain observations of the Privy Council that directly related to that provision. Section 8 read as follows: “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 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.” The Court pointed out that although the Privy Council’s judgment did not quote the section verbatim, the Council clearly kept it in mind when it expressed that “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 of the Lieutenant-Governor; and also, that the laws 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 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 Lieutenant Governor.” The Court then explained that this wording could be readily adapted to the statutes presently before it, proposing a formulation such as: “The legislature determined that…the laws which were or might be in force in the other territories…(omitting the words ‘subject to the same Government’ 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 that point also, to entrust a discretion to the Central or Provincial Government.” Finally, at paragraph 111, the Court concluded that this line of reasoning aligned fully with the facts of the present case and that the phrase “territories subject to the same Government” was not material to the issue at hand.

In the decision of Burah’s case the court held that only those statutes which were already operative in other territories governed by the same administration could be extended to the territory in question. The judgment emphasized that the analysis should not focus on isolated words but rather on the underlying principle articulated in that case. Under the original Delhi Laws Act the authority responsible for adapting the statutes was the Governor-General, whereas in the other two Acts the adapting authority was the Central Government. In the year 1912 the Governor-General possessed jurisdiction over the entirety of the territories from which the laws were to be transferred to Delhi, and the same observation applies to the Central Government with respect to the other two Acts. The court reiterated that Burah’s case has been accepted by this Court as correctly decided, and observed that the statutes now under challenge are essentially enlarged versions of Act XXII of 1869, the very Act that was examined in Burah’s case.

It is now well settled in both English and American jurisprudence that a legislature may enact a law that authorises a government department, a local body, or any other agency to make regulations that are consistent with the provisions of the parent Act. No argument was advanced before this Court that such delegation of power to another body is impermissible. Numerous instances are known where regulations have been framed that create offences and prescribe penalties, and those regulations have been upheld as valid. In fact, the formulation of many of these regulations often involves a greater degree of legislative judgment and discretion than merely selecting appropriate statutes from an existing body of law. The court found the following passage from a well-known American decision particularly relevant: “It is well settled that the delegation by a State legislature to a municipal corporation of the power to legislate, subject to the paramount law, concerning local affairs, does not violate the inhibition against the delegation of the legislative function. It is a cardinal principle of our system of government that local affairs shall be managed by local authorities, and general affairs by the central authority, and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity.” (Per Fuller J. in Stoutenburgh v. Hennick [(1889) 129 U.S. 141]). A similar point arose in Sprigg v. Sigcau [[1897] A.C. 238], where the court examined section 2 of the Pondoland Annexation Act, 1894, which conferred on the Governor the power to add, by proclamation, laws that he deemed appropriate for the annexed territories.

The provision under discussion permitted the Governor to incorporate “the existing laws in force in the territories annexed, such laws as he shall from time to time by Proclamation declare to be in force in such territories.” In addressing this provision, the Privy Council observed that the legislative authority conferred on the Governor by the Pondoland Annexation Act was expressed with great caution and was narrowly limited. The Council stated that the Act contained no language suggesting that the Governor was to become a dictator or to be endowed with the full legislative powers of the Cape Parliament. According to the Council, the Governor’s only power, after the enactment’s date, was to add to the statutes and ordinances already proclaimed and operative at that time any laws, statutes and ordinances that he “shall from time to time by proclamation declare to be in force in such territories.” The Council further explained that these words did not grant the Governor any authority to create “new laws” in the broad sense; rather, they merely authorized him to transplant into the newly annexed territories those laws, statutes and ordinances that already existed and were effective elsewhere in the Colony. The appellant argued that the phrase “all such laws made” appearing in the proviso indicated a power to enact new laws not in force elsewhere, but the Council rejected this view, holding that the plain meaning of the enactment prevailed over the proviso and that the proviso derived its meaning from the reference implied by the word “such.” Consequently, the Court concluded that the central or provincial government’s role under the Act was not to legislate anew but to transfer to the concerned territory laws that were already operative in other parts of the country.

The Court also noted that section 2 of the Pondoland Annexation Act, 1894, contained a proviso requiring that “all such laws made under or by virtue of this Act shall be laid before both Houses of Parliament within fourteen days after the beginning of the Session of Parliament next after the proclamation thereof as aforesaid, and shall be effectual, unless in so far as the same shall be repealed, altered, or varied by Act of a Parliament.” This requirement was described as a precautionary measure intended to ensure parliamentary superintendence, rather than a limitation on the principle that the Governor could only transplant existing laws. The Court emphasized that, as correctly stated by the Privy Council, when a legislature enacts subordinate or conditional legislation it does not relinquish its complete control and retains at any time the power to withdraw or modify the authority it has delegated to another body. Accordingly, the power of parliamentary superintendence was understood to be implicit in all such legislation, reinforcing the view that the delegated authority was limited to the application of already existing statutes and not to the creation of entirely new legislative measures.

In all such legislation, the Court referred to the somewhat unusual decision in Door v. United States (1904) 195 U.S. 138, where the United States Supreme Court held that Congress could validly delegate to a commission appointed by the President the authority to legislate for the Philippine Islands. The Court then observed that a number of American cases have permitted the adoption of a law or rule originating in another jurisdiction, and it cited the case Re Lasswell (1934) 1 Cal. Appl. (2d) 183 as an illustration. In that decision a California statute declared an emergency and provided that whenever the Federal authorities established a code for the regulation of any industry, that Federal code would automatically become the State code, and the statute also fixed a penalty for violation of such codes. The California Supreme Court held that the statute was constitutional and valid, rejecting the argument that it amounted to an unlawful delegation of authority by the State legislature to the Federal Government and its administrative agencies. Although the Court noted that this particular case did not have direct bearing on the questions before it, it demonstrated that the application of laws made by another legislature has, in some circumstances, been regarded as permissible. The Court further pointed out that many enactments in India have parallels in England whereby the provisions of a particular Act are initially applicable to specified areas, but may be extended by the Provincial Government or another appropriate authority to the whole of a Province or to any part thereof. As an example, the Court quoted section 1 of the Transfer of Property Act, 1882, which provides that the Act “extends in the first instance to all the Provinces of India except Bombay, East Punjab and Delhi,” but that the Act or any part of it may, by notification in the official Gazette, be extended to the whole or any part of the said Provinces by the Provincial Government concerned. The Court observed that if, instead of inserting similar extension provisions in fifty or more separate Acts, a single provision were placed in one Act empowering Provincial Governments to extend any of those fifty Acts, the result would be substantively the same; the principle would not change. It was further noted that in the statutes under consideration, the power to extend has been conferred not only on Acts of the Central Legislature, which is the originator of the Acts in question, but also on Acts of the Provincial Legislatures. The Court concluded that this distinction does not affect the underlying principle. The central issue, the Court explained, is whether a legislature may empower an external agency to extend an Act or a series of Acts to a particular area, a question that returns to the doctrine of conditional legislation embedded deep within the legal system.

In this matter, the Court observed that the question of permitting an agency outside the legislature to extend an Act or a series of Acts to a particular territory returned the discussion to the doctrine of conditional legislation, a doctrine deeply rooted in the legal system and therefore not open to casual challenge. The Court’s attention was drawn to several statutes that contain provisions comparable to those under consideration in the present reference. These statutes included the first and second sections of the Act of 1865, sections five and five-A of the Scheduled Districts Act of 1874 (Act XIV of 1874), section ten, paragraph one of the Burma Laws Act of 1898 (Act XIII of 1898), section four of the Foreign Jurisdiction Act of 1947 (Act XLVII of 1947), and section four of the Merchant Shipping Laws (Extension to Acceding States and Amendment) Act of 1949 (Act XVIII of 1949). To illustrate the close analogy, the Court reproduced the relevant provisions of two of the earlier statutes, namely the Scheduled Districts Act of 1874 and the Burma Laws Act of 1898. Under the Scheduled Districts Act the law provided that the Local Government, with the prior approval of the Governor-General in Council, could from time to time by notification in the Gazette of India and, where applicable, in a local Gazette, extend to any of the Scheduled Districts or to any part thereof any enactment that was in force in any part of British India at the date of such extension. Moreover, the Act permitted that when an enactment was declared to be in force in a Scheduled District or part thereof under section three, or when an enactment was extended to a Scheduled District or part thereof under section five, the Local Government, again with the previous sanction of the Governor-General in Council, could subject the operation of the enactment to such restrictions and modifications as it thought fit. The Burma Laws Act of 1898 contained a similar provision in paragraph ten, sub-paragraph one, stating that the Local Government, with the prior sanction of the Governor-General in Council, could by notification in the Burma Gazette extend, with such restrictions and modifications as it thought fit, to all or any of the Shan States or to any specified local area within the Shan States, any enactment that was in force in any part of Upper Burma at the date of the extension. The Court noted that, although it was difficult to assert that a rigid legislative practice existed before the enactment of the Delhi Laws Act and the other statutes now under review, it could be presumed that the legislature had conducted several experimental measures prior to the passage of those Acts and had found them to be effective in achieving the intended purpose. Turning to the power of modification, the Court examined the meaning of the phrase “with such modifications as it thinks fit.” The Court explained that these words were not unfamiliar and were frequently employed by meticulous draftsmen to enable laws applicable to one place or object to be adapted for application to another. The authority to introduce necessary restrictions and modifications was considered incidental to the power to apply or adapt the law, and, in the context in which the provision regarding modification appeared, it could not be interpreted to carry the ominous connotation that had been suggested.

In this case, the Court observed that any alterations to a statute must remain inside the structure established by the Act and must not change the Act’s essential identity, its overall framework, or the principal purpose it was created to achieve. The authority to modify therefore carries a discretionary element that permits the maker of the amendment to introduce appropriate and fitting changes. The Court emphasized that granting a body the power to adapt a law would be meaningless unless that same body also possessed the authority to make the necessary adjustments to the law. The provision that allows an external authority to insert modifications into a statute has been labelled in English law as a “Henry VIII clause”, a nickname derived from the historical perception of the monarch as a symbol of executive autocracy. Referring to the work of Sir Thomas Carr, who possessed considerable experience with the type of legislation under consideration, the Court quoted his description from the book Concerning English Administrative Law (page 44): “Of all the types of orders which alter statutes, the so-called ‘Henry VIII clause’ sometimes inserted in big and complicated Acts, has probably caused the greatest further in England. It enables the Minister 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 power will find them surprisingly innocuous. The device is partly a draftsman’s insurance policy, in case he has overlooked something, and is partly due to the immense body of local Acts in England creating special difficulties in particular areas. These local Acts are very hard to trace, the draftsmen 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 term only.”

The Court further noted that the discretion to amend a statute is not an unrestricted or irrevocable power in a strict legal sense, and that this limitation was the principal issue in the legal question before it. Citing the judgment of Garth C.J. in Empress v. Burah (I L R 5 Cal 63 at 140), the Court reiterated that the legislature always retains the capacity to monitor how the powers it has delegated are exercised, and if those powers are used imprudently, contrary to legislative intent, or produce inconvenient results, the legislature may intervene by enacting a new law to withdraw the delegated authority or to correct the inconvenience. The Court also referred to observations made by the learned Chief Justice concerning the Civil Procedure Code of 1861, which went beyond the Act under review by granting local governments the 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 Provinces from that which was in force in the Regulation Provinces.” Despite the breadth of that power, the Privy Council later regarded the Civil Procedure Code of 1861 as a sound example of permissible conditional legislation. During the hearing, counsel presented a list of statutes enacted by the Central and various Provincial Legislatures that expressly granted modification powers to designated authorities, demonstrating that such provisions are not rare. The list included, among others, 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, and the Uttar Pradesh Kand Revenue Act 1901, indicating a substantial legislative practice of incorporating modification clauses.

The judgment observed that a considerable number of statutes enacted by the Central Legislature and several Provincial Legislatures expressly authorized certain authorities to modify the provisions of those statutes. The record showed that the list of such statutes was far from insignificant. Among the statutes cited as examples were 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; and the U. P. Kand Revenue Act, 1901. The Court further noted that similar legislative practices were not confined to India, pointing out that a variety of English statutes also contained comparable powers of modification, although only a few were mentioned for illustrative purposes. In 1929, for instance, a Bill was introduced in Scotland with the aim of reducing the number of local authorities and creating larger ones. During parliamentary debate the proposal gave rise to the sudden creation of a new type of body called a district council. Because there was insufficient time to establish detailed procedures for electing the new district councillors, the Bill provided that the election of those councillors would be governed by the existing statutory provisions applicable to the election of county councillors in rural areas, “subject to such modifications and adaptations as the Secretary to State may by order prescribe.”

The Court then turned to a series of further examples illustrating the legislative use of conditional powers. In 1925 Parliament enacted the Rating and Valuation Act, and section 67 of that Act authorized the Minister, by order, to remove any difficulty that might arise in applying the Act to an exceptional area or in preparing the first valuation list for any area; the same provision allowed the Minister to modify any part of the Act that the Minister deemed necessary or expedient for giving effect to the order. A similar scheme appeared in a Local Government Bill of 1929, where section 120 empowered the Minister to make orders for removing difficulties and to modify the provisions of that Act as required. Section 1(2) of the Road Transport Lighting Act, 1927 gave the Minister of Transport the power to exempt wholly or partially vehicles of particular kinds from the requirements of the Act, while subsection (3) permitted the Minister to add to or vary those requirements by regulation. Section 1 of the Trade Boards Act, 1918 authorized the Minister of Labour, by special order, to extend the provisions of the Trade Boards Act, 1909, to new trades and to alter or amend the Schedule to that Act. Finally, section 45 of the Unemployment Insurance Act, 1920 provided that if any difficulty arose concerning the constitution of special or supplementary schemes, the Minister of Labour could, by order, do anything he considered necessary or expedient, and any such order could modify the provisions of the Act. The Court concluded that numerous additional instances of this nature could be cited, but that enumerating them would not add substantive value. The principal rationale for including such modification powers, the Court explained, was that without them the legislation would be delayed or rendered ineffective, since any defect could not be corrected until a new amending statute was passed.

It was observed that without a power to modify an Act, the legislation would take longer to become ready for implementation, and the operation of important and wholesome measures would be delayed. Moreover, once the Act became operative, any defect in its provisions could not be corrected until a separate amending statute was passed. The Court also noted that the authority to modify within limited bounds does not extend as far as many other powers that the legislature has vested in senior officials and public bodies for acting in certain matters. In the Court’s view, it was now too late to declare the statutes under consideration ultra vires simply because the legislatures, while granting the Government the power to extend an Act, also granted the Government the power to subject that Act to modifications and restrictions as it deemed appropriate.

The Court recognised that the clause commonly referred to as a “Henry VIII clause” has occasionally attracted unfavourable comment in England. The Committee on Ministers’ Powers, while acknowledging that such a clause may be needed from time to time, stated that its adoption should, on each occasion, be justified by the Minister responsible for the Bill and be limited to the essential purpose of bringing an Act into operation. The clause should be drafted in the most precise language, confined to the mechanical arrangements indispensable for that purpose, and should contain a maximum time limit of one year, after which the power would lapse. If the one-year period proved insufficient, which the Committee regarded as unlikely, the Government should return to Parliament with a one-clause Bill to extend the power.

The Court further observed that in England delegated legislation often requires the regulations or provisions made by the delegate to be laid before Parliament either in draft form or with a condition that they not take effect until Parliament’s approval, or with no further direction. While the Acts before this Court have been criticised for not observing this safeguard, the Court held that, however desirable the adoption of such safeguards and other measures suggested over time may be, the validity of the Acts must be determined solely on legal considerations and cannot be affected by the absence of those safeguards.

Turning to section 2 of the Part C States (Laws) Act, 1950, the Court examined the provision that empowers the Central Government to make a provision in the enactment extended under that Act for the repeal or amendment of any corresponding law then applicable to the concerned Part C State. The Court acknowledged that this power is far-reaching and unusual, but on careful analysis it would be found to be only…

In this part of the judgment the Court explained that the power to transplant and modify legislation is naturally accompanied by the need to replace any law that has become outdated or ineffective. When a new statute is to be applied, it must necessarily displace the old provision so that the authority charged with enforcing the new law can state that the previous law no longer operates. The Court looked for a comparable provision in other statutes and found the closest example in the Church of England Assembly (Powers) Act, 1919. That Act empowers the Church Assembly to propose legislation on matters concerning the Church of England, and those proposals may include the repeal or amendment of Acts of Parliament, even the Church Assembly Act itself. However, the Court noted that such proposals only become law after Parliament gives them force through an affirmative address of each House. Because the legislative effect depends on parliamentary approval, the Court concluded that there is no true analogy between that Act and the present Part C States (Laws) Act. Nevertheless, the Court held that the provision under consideration must be upheld. Although the provision extends to the outer limits of legislative authority, the Court found it difficult to say that it exceeded the powers of a legislature that is supreme within its own domain. The Court then quoted Lord Hewart’s observation in King v. Minister of Health [[1927] 2 K.B. 229 at 236], describing the Act as marking “the high water-mark of legislative provisions of this character” and warning that, without restraint, legislation could reach a point where it amounts to an abdication of legislative powers.

Before concluding, the Court offered several general observations on the nature and limits of delegated legislation, using the term in its popular sense. The Court described delegated legislation as a contemporary necessity that has become an enduring feature of lawmaking, both inevitable and indispensable. Because the legislature now must enact a large number of statutes, it lacks the time to address every detailed provision, especially when the subject matter is highly technical. In such cases, the legislature may prescribe only broad principles and leave the finer details to authorities who possess specialized knowledge. Moreover, when legislation seeks to implement complex reform schemes, it is often impossible to draft a completely self-contained act that anticipates every contingency and local requirement. Consequently, a degree of flexibility is essential to allow the law to adapt continually to unforeseen future conditions without requiring constant amendment. This flexibility enables the delegated authority to consult stakeholders who may be affected by a particular law, to conduct practical experiments when necessary, and to apply the results of those experiments in a manner that best serves the public interest.

In this case, the Court observed that investigations and experiments must be conducted in the most effective manner. The Court noted that emergencies and urgent situations may arise that require prompt action and the delegation of considerable powers to authorities who must address those circumstances as they occur. The Court cited examples from the statute books of England and other jurisdictions to illustrate the necessity of delegated legislation. The British Gold Standard (Amendment) Act of 1931, for instance, authorised the Treasury to issue orders for measures concerning exchanges. It also permitted the Treasury to periodically modify those orders as it considered expedient to meet difficulties arising from the suspension of the Gold Standard. The Court also referred to the National Economy Act of 1931, which empowered His Majesty to make Orders in Council to achieve economies in respect of the services listed in the schedule. It further authorised the designated Minister to issue regulations to give effect to those Orders. Another example mentioned was the Foodstuffs (Prevention of Exploitation) Act of 1931, which empowered the Board of Trade to adopt exceptional measures for preventing or remedying shortages of certain food and drink items. The Court concluded that the objectives of these statutes could not have been achieved through any other legislative form than the one adopted. The Court explained that the increasing complexity of modern administration and the expansion of State functions into economic and social domains have made it necessary to adopt new legislative forms. It also noted that such circumstances require granting wide powers to various authorities when appropriate.

The Court further warned that, although delegation of legislative power has become inevitable in contemporary governance, it is essential to recognize the hazards that accompany an overly broad delegation. The Court identified two principal dangers. First, defining delegated power so loosely that the scope of the delegated authority cannot be clearly determined. Second, granting extensive delegated powers to the executive while simultaneously stripping citizens of judicial protection against arbitrary or unreasonable use of those powers. The Court stated that these risks are self-evident and do not require extensive discussion. Accordingly, the Court held that none of the provisions that were the subject of the three questions referred to by the President were ultra vires, and the Court would answer those questions accordingly. The President of India, by an order dated 7 January 1951, referred the following matters to the Court under article 143(1) of the Constitution. The matters demanded an analysis of whether the statutes exceeded the legislative competence of the authorities that enacted them. (1) whether section 7 of the Delhi Laws Act, 1912, or any of its provisions, were ultra vires the legislature that enacted the Act; and (2) whether the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions, were ultra vires the legislature that passed it.

The reference also sought an answer to the third question, namely whether section 2 of the Part C States (Laws) Act, 1950, or any of its provisions were ultra vires the Parliament, and if so, to what particular extent. The President’s letter of reference explained the reasons for the request. It cited the Federal Court of India’s decision in Jatindra Nath Gupta v. The Province of Bihar, reported in the 1949-50 Federal Court Reports at page 595, where a majority held that the proviso to sub-section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra vires the Bihar Legislature because it delegated to the Provincial Government the power to modify an act of that Legislature, thereby amounting to an impermissible delegation of legislative power. As a result of that decision, doubts arose concerning the validity of three statutes: section 7 of the Delhi Laws Act, 1912; section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947; and section 2 of the Part C States (Laws) Act, 1950, together with the Acts that were extended to the Provinces of Delhi and Ajmer-Merwara and to various Part C States under those sections, and also the orders and other instruments issued under the extended Acts. The letter further noted that 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 Acts extended pursuant to the powers conferred by those sections, were presently being challenged in several cases pending before the Punjab High Court, the Court of the Judicial Commissioner of Ajmer, and the District and Subordinate Courts in Delhi.

The provisions under consideration were set out as follows. Section 7 of the Delhi Laws Act, 1912 provided that the Provincial Government could, by notification in the official Gazette, extend to the Province of Delhi or any part thereof any enactment that was in force in any part of British India on the date of such notification, and could do so with such restrictions and modifications as it thought fit. Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 authorized the Central Government, by notification in the official Gazette, to extend to the Province of Ajmer-Merwara any enactment that was in force in any other Province on the date of the notification, again with such restrictions and modifications as the Central Government thought appropriate. Section 2 of the Part C States (Laws) Act, 1950 empowered the Central Government, by notification in the official Gazette, to extend to any Part C State, except Coorg and the Andaman and Nicobar Islands, or to any part of such State, any enactment that was in force in a Part A State on the date of the notification, and to do so with such restrictions and modifications as it deemed fit.

The Court noted that a provision could be inserted in any enactment so extended to authorize the repeal or amendment of any corresponding law, other than a Central Act, that was then applicable to the Part C State. It observed that the Central Legislature, which had originally enacted these provisions, possessed at all relevant times the authority to make laws directly for the territories in question. However, instead of using that authority, the Legislature chose to empower the Provincial Government in the first instance and the Central Government in the remaining instances to extend, by means of a notification in the official Gazette, laws that had been passed by Provincial Legislatures throughout India to the designated territories within the respective jurisdictions of those governments. The Court identified the main characteristics of the power that had thus been delegated to the executive. First, the laws to be extended were not laws made by the delegating authority itself—the Central Legislature—but were statutes enacted by various Provincial Legislatures for their own territories. Second, the executive, when extending such statutes, was granted the authority to restrict or modify them as it deemed appropriate. Third, the law eligible for extension had to be in force at the time of the extension notification; consequently, the executive could extend not only those statutes that were already operative at the moment the contested provisions were enacted—statutes that the Central Legislature could have examined and deemed suitable for extension—but also statutes that might be enacted in the future by Provincial Legislatures, even though the Central Legislature could have no means of assessing their suitability at that later date. Finally, the power given to the executive under the referenced enactments was not confined to extending statutes made by other legislatures; it also included the authority to repeal or amend any corresponding law that was then in force in the designated territories.

The Court then framed the central issue as whether the delegation of such extensive discretionary authority—allowing the executive to select statutes made by other legislatures, to apply them elsewhere, and to amend or repeal existing laws in the territories—fell within the competence of the Central Legislature. To address this question, the Court referred to the earlier decision in Jatindra Nath Gupta v. The Province of Bihar [[1949-50] F.C.R. 595]. In that case, the Federal Court of India, by a majority consisting of Kania C.J., Mahajan and Mukherjea JJ., held that the proviso to sub-section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1937, which purported to empower the Provincial Government, subject to certain conditions not material here, to extend the operation of the Act for an additional period after its expiry, with or without modifications, amounted to a delegation of legislative power and thus exceeded the legislature’s competence. The Court observed that the decision was partly based on counsel’s concession that delegating legislative power was improper, although it also recognized that the judgments contained observations that gave weight to the contrary view.

The Court observed that Justice Fazl Ali, in his dissent, regarded the power to extend a statute and the power to modify it as distinct authorities. He reasoned that the Provincial Government had, in fact, merely extended the operation of the Bihar Maintenance of Public Order Act without introducing any modification, and therefore the proviso functioned as valid conditional legislation. While Justice Fazl Ali concurred with the majority that the detention of the petitioners in the earlier case was unlawful, he chose to base his own decision on a narrower ground that did not bear on the present dispute. After considering the more extensive arguments presented in the instant matter, he concluded that he could not adopt the majority’s view on the question of legislative delegation.

The Attorney-General, appearing for the President, strongly contested the majority opinion expressed in Jatindra Nath Gupta’s case [[1949-50] F.C.R. 595]. He argued that the view was inconsistent with established constitutional principles and with prevailing authority. To support his challenge, he referred to a large number of decisions of the Privy Council and of the courts of the United States, Australia and Canada, and he also cited the opinions of various legal writers who maintain that legislative power inherently includes the authority to delegate portions of that power to other bodies. According to his submission, a legislature that is empowered to enact laws on particular subjects and for a defined territory may, while remaining within its statutory limits, delegate the whole of its legislative authority to another person or entity, provided it does not completely relinquish that authority. The Court further noted that contemporary constitutional doctrine holds that any legislature created by a written constitution must act strictly within the scope of powers expressly granted by that constitution and must respect the limitations it imposes; any enactment that contravenes those constitutional provisions is void. In contrast, England does not face such a problem because its Parliament is sovereign and unlimited, capable of altering constitutional arrangements through ordinary legislative processes, which precludes judicial review on constitutional grounds. India, however, possessed a written constitution at all relevant times—namely in 1912, 1947 and 1950 when the statutes under scrutiny were enacted—and it is unquestionably the role of the judiciary to ensure that Indian legislatures operate within their constitutional boundaries. Accordingly, the proper method for assessing constitutional validity is to examine the constitutional instrument that positively creates legislative powers and negatively restricts them. If the legislation falls within the general ambit of the empowering language and does not breach any explicit condition or restriction that limits those powers, the court should not expand the restrictions or engage in further constructive interpretation.

The Court noted that it must determine whether the power to delegate authority contained in each of the impugned statutes conflicted with the spirit of the constitution that was operative when those statutes were enacted. The relevant constitutions did not contain any clause that expressly permitted or expressly forbade the delegation of legislative power. Consequently, the Court posed two questions: whether a ban on delegation could be inferred from the constitutional language, and if such an inference were possible, whether the constitution’s terms supported an implied prohibition.

Before addressing those questions, the Court explained that constitutional scholars have advanced two principal theories concerning delegated legislation. Although England itself does not face constitutional challenges to delegated legislation, similar issues have arisen in Commonwealth jurisdictions possessing written constitutions. Judges trained in the tradition of parliamentary supremacy have developed the doctrine that any legislature created by an act of Parliament, while required to operate within the subjects and areas assigned to it, remains as sovereign and supreme within those limits as the Parliament that created it. Because such legislatures are not considered delegates of the Imperial Parliament, the maxim “delegatus non potest delegare” does not apply to them. Accordingly, any delegation of legislative functions by those bodies, no matter how extensive, cannot be attacked on constitutional grounds so long as the delegating legislature retains its own authority. The Court cited the leading authority on this point, Hodge v. Queen, [9 App. Cas. 117] decided by the Privy Council in 1883, which upheld a Canadian provincial statute that authorized a Board of Commissioners to issue bylaws, create offences, and impose penalties for the regulation of taverns.

In that decision, the Privy Council observed that the appellant argued the Imperial Parliament had not given the provincial legislature power to further delegate its authority to a licence commissioner or any other person, invoking the maxim that a delegate may not delegate. The Council rejected this argument, stating that it stemmed from a fundamental misunderstanding of the nature and status of provincial legislatures. The Council explained that provincial legislatures are not agents or delegates acting under a mandate from the Imperial Parliament. When the British North America Act provided for a legislature in Ontario, it granted that assembly exclusive authority to legislate for the province on matters listed in section 92. This grant of power was not, in any sense, a delegation that could be restrained by the maxim concerning delegates; rather, it conferred plenary authority within the constitutional limits specified for the province.

It was explained that the authority granted to a provincial legislature was not to be exercised as a delegation from, or as an agency of, the Imperial Parliament. Rather, the Imperial Parliament, exercising its full plenary power, conferred upon the provincial legislature an ample authority that was limited only by the subjects enumerated in section ninety-two. Within those subject-matter limits, the provincial legislature possessed supreme legislative power. The counsel for the appellant argued that when a legislature entrusts important regulatory functions to agents or delegates, it thereby effaces its own authority. The Court rejected that contention, holding that the legislature retains its full powers even after delegating functions. The legislature may at any time terminate the agency it has created, replace it with a different agency, or decide to carry out the function itself. The extent to which a legislature may seek assistance from subordinate agencies, and the duration for which such agencies may continue to act, are matters that each legislature alone must determine and are not for courts to prescribe. This principle was reflected in the authority cited as “Appellate Cases” volume one, page one hundred and seventeen, paragraph one hundred and thirty-one.

The discussion continued with a clear statement of the English doctrine of “supremacy within limits.” According to this doctrine, a subordinate legislature may exercise any power that the Imperial Parliament could exercise, provided it acts within the circumscribed limits of its own legislative authority. Consequently, the maxim “delegatus non potest delegare” cannot be invoked as a constitutional limitation on the legislature’s power to delegate, because the legislature is not a delegate of the Imperial Parliament. The final words of the quoted passage emphasized that, when such a question is presented to the court, the inquiry is strictly confined to whether the legislature is acting within the bounds of its granted legislative power. References were made to remarks concerning “authority ancillary to legislation” and an “abundance of precedents for this legislation entrusting a limited discretionary authority to others.” Those remarks pertained specifically to the authority delegated in the instant case to regulate taverns through the issuance of licences and do not diminish or qualify the general principles previously set out. The same doctrine was reaffirmed in the case of Powell v. Apollo Candle Co. Ltd., where, after citing Burah’s case and Hodge’s case, the judges declared that the earlier decisions “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 Legislature. It is a legislature restricted in the area of its powers, but within that area unrestricted, and not acting as an agent or a delegate.” An objection that only the legislature of New South Wales possessed the power to impose a particular tax, and could not delegate that power to the Governor, was answered by observing that the duties imposed under the Order in Council were exercised by the authority of the Act under which the Order was issued. The legislature had not surrendered its complete control over the Governor and retained the power, at any time, to withdraw or modify the authority it had entrusted.

In the discussion of the power that the legislature may delegate, the Court observed that a legislature retains at all times the authority to withdraw or modify any power that it has granted to an executive officer, citing the passage that states the legislature “has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him” (10 App. Cas. 282, 291). The Court then turned to the contrast between Hodge’s case, in which the delegation of legislative authority was not extensive, and Shannon’s case, where a Canadian provincial legislature enacted a compulsory Marketing Act that established Marketing Boards but left to the Government the discretion to determine the powers and functions of those Boards. An objection was raised that the Act was merely a “skeleton of an Act” and that the legislature had effectively surrendered its legislative responsibility to another body. The objection invoked Lord Haldane’s dictum in the Referendum case (1919 A.C. 935), which suggested doubt about a provincial legislature’s power to “create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence.” The Court rejected this objection without calling upon Government counsel for a response. Instead, the Lords reiterated the English doctrine that a legislature possesses plenary powers of delegation within constitutional limits, describing the objection as “subversive of the rights which the provincial legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the constitution has granted legislative powers.” They affirmed that, within its appointed sphere, the provincial legislature is as supreme as any other parliament. The Court noted that Martin C.J. had previously addressed the objection in Re Natural Products Marketing (B.C.) Act (1937) 4 D.L.R. 298, 310, and that his judgment was satisfactory, so there was no need to add further commentary. Martin C.J., citing the Privy Council in Queen v. Burah (3 App. Cas. 889, 906), remarked that the British Statute Book contains numerous examples of delegations to various persons and bodies across many subject-matters, and that enumerating them would require several pages and could create a constitutional debacle if they were all invalidated. Consequently, he limited his discussion to four representative statutes, including one that gave “carte blanche” powers over affected fruit-land areas to combat a pest, another that conferred on the Lieutenant-Governor in Council the authority to make rules of the widest scope, and a third highlighting the foundational role of delegation in the regulation of civil practice and procedure, both in appellate and trial contexts, even affecting the very sittings of the courts.

The Privy Council’s opinion on the English perspective concerning the delegability of legislative authority attracted special attention for several reasons. First, the case presented an unusually broad delegation of law-making power, to the extent that counsel argued the permissible “limit” of delegation had been reached; this raised the core constitutional question of whether a legislature could lawfully surrender or abdicate such power, and the Court relied on Lord Haldane’s statement in the Referendum case [[1919] A.C. 935]. Second, the objection to the delegation was regarded as plainly untenable, so Government counsel was not required to respond because the judges considered the objection to be subversive of long-standing constitutional principles. Third, the instances of “carte blanche delegation” identified by Martin C.J. were accepted and deemed to satisfy the objection in a very satisfactory manner. Fourth, the only measure needed to defeat the objection was a straightforward declaration of the English doctrine: within its own sphere the provincial legislature enjoys the same supremacy as any other Parliament, meaning that if there is no legal limit on Parliament’s power to delegate, there can be no limit on a provincial legislature’s power to delegate legislative authority to others.

The English approach to the issue of legislative delegation is therefore characterised by a refusal to treat legislation enacted by a duly constituted legislature as an exercise of a delegated power. English law rejects the maxim “delegatus non potest delegare” and recognises the sovereignty of legislative bodies within the confines of the constitutions that create them, granting these bodies plenary power to delegate so long as constitutional limits are observed. Delegation is viewed as a revocable entrustment of legislative authority to an appointed agent; the agent’s actions obtain validity and legal effect from the delegating statute, rather than representing a relinquishment by the delegating body of its own capacity to legislate.

In contrast, American courts have addressed the same problem along entirely different lines, shaped by their own historical environment and legal tradition. In the eighteenth century the United States was heavily influenced by the ideas of Montesquieu and Locke, who warned that concentration of legislative, executive, and judicial powers in a single organ would produce tyranny. Consequently, many state constitutions expressly prohibited each branch of government—the legislature, the executive, and the judiciary—from exercising the powers of the others. Although the Federal Constitution contains no explicit prohibition, it has been interpreted, against the backdrop of a separatist ideology, as embodying the principle of separation of powers. This interpretation provided a doctrinal foundation for the belief that one branch could not delegate its powers to another, a view supported by the traditional agency maxim “delegatus non potest delegare,” which quickly became a dogma of American constitutional law. However, rapid industrial and economic development created complexities that forced American judges to recognise the practical necessity of extensive delegation of legislative functions to administrative bodies, a tension that would later shape the evolution of American administrative law.

In the United States, the growing complexity of government administration made judges realise that delegating legislative authority to administrative agencies was unavoidable, and that refusing to do so would halt governmental functions. Accordingly, American case law on this subject often concealed delegation by using vague terminology or by qualifying it as “quasi-legislative,” as observed by Justice Holmes in Springer v. Government of the Philippine Islands (277 U.S. 189). A contemporary writer summarised this approach with Professor Cushman’s syllogism: first, that Congress may not constitutionally delegate legislative power; second, that certain powers must be handed to administrative officers and regulatory commissions; and third, that the powers thus transferred are therefore not legislative but “administrative” or “quasi-legislative” (American Administrative Law by Bernard Schwartz, p. 20). After a period of confusion regarding which powers were essentially legislative and therefore nondel-egable, and which were merely administrative or ancillary and thus permissible to delegate, the Supreme Court’s recent rulings appear to draw a line between the enactment of policy or standards on a subject and the implementation and enforcement of that policy through rules and regulations. This distinction is illustrated in decisions such as Schechter Poultry Corp. v. United States (295 U.S. 495) and Panama Refining Co. v. Ryan (293 U. S. 388). The test, however, inevitably leads to divergent judicial opinions when applied to specific facts.

The discussion then shifted to the questions raised in the present case. The first issue concerned the constitutional validity of section 7 of the Delhi Laws Act, 1912, and required an assessment of whether the legislature that enacted the provision possessed the requisite competence under the constitution then in force. It was noted that both the Delhi Laws Act, 1912 and the Ajmer-Merwara (Extension of Laws) Act, 1947—related to the second question—had been repealed by section 4 of the Part C States (Laws) Act, 1950. Nevertheless, the provisions that had already been extended under the repealed statutes continued to operate, creating a need for a declaration on their constitutional validity. In 1912, the Indian legislature consisted of the Governor-General in Council, whose law-making authority derived from section 22 of the Indian Councils Act, 1861 (24 & 25 Vic. Ch. 7). That provision granted the power “to make laws and regulations for repealing, amending or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territories… for all persons, whether British or native, foreigners or others, and for all courts of justice… and for all places and things whatever” within the Indian territories, subject only to certain conditions that did not affect the provisions under challenge. Although later enactments such as the Councils Acts of 1892 and 1909 altered the composition and powers of the Governor-General in Council, the core law-making authority remained essentially unchanged in 1912. Consequently, the Court needed to decide whether section 7 fell within the scope of the legislative powers conferred by section 22 of the 1861 Act. Since the statutory language was exceedingly broad—covering “all persons… and all places and things whatever”—the matter reduced to determining whether section 7 qualified as a “law” under the meaning of section 22. This issue, the Court observed, had been addressed by the Privy Council in Empress v. Burah (5 I.A. 178).

The Court observed that the phrase “things whatever within the said territories” in the 1861 Act was subject only to certain conditions and restrictions that did not alter the provisions under challenge. Although the composition and powers of the Governor-General in Council were modified by the Councils Acts of 1892 and 1909, the essential law-making authority of the Governor-General remained unchanged in the year 1912. Consequently, the Court examined whether section 7 of the Delhi Laws Act 1912 fell within the legislative competence that section 22 of the Indian Councils Act 1861 granted to the Governor-General in Council. Section 22 conferred a very broad power described as “for all persons … and for all places and things whatever” throughout the Indian territories, and therefore the issue reduced to determining whether section 7 constituted a “law” within that definition. The Court indicated that this precise question had been answered by the Privy Council in the case Empress v. Burah, reported in 5 I.A. 178. The Government appealed a judgment of the majority of a Full Bench of the Calcutta High Court that had declared sections 8 and 9 of Act XXII of 1869 ultra vires the Governor-General in Council. The Court of the majority regarded those sections as an unauthorised delegation of legislative authority to the Lieutenant-Governor of Bengal. The combined effect of the two provisions authorised the Lieutenant-Governor, by publishing a notice in the Calcutta Gazette, to extend “any law or any portion of any law now in force” to designated districts. Justice Markby, delivering the majority judgment, held that section 9 amounted to a delegation of legislative authority to the Lieutenant-Governor, and that a delegate of the Imperial Parliament possessed no power to further delegate that authority. He further held that the Indian Legislature could not alter the legislative machinery without affecting the Acts of Parliament which created it, and that any such alteration rendered its own Acts void. The Court noted the argument of Government counsel that once Parliament granted a general power to make laws, the only question was whether the contested enactment qualified as a law. He added that such an enactment would be valid unless it fell within some specific prohibition. While acknowledging that the argument was “sound,” the Court rejected it, reasoning that the 1861 Act intended to restrict the Legislative Council to functions that were truly legislative, namely the making of laws. The Court explained that, in the English context, laws are rules of action prescribed by a superior to an inferior, whereas the Imperial Parliament is not limited to merely legislative functions. Accordingly, the Court held that when the Legislative Council merely grants another person permission to legislate, it does not itself make a law within the meaning of the Act that confers its authority.

The Court observed that the Legislative Council, when it simply gave another person permission to make a law, did not itself create a law within the meaning of the statute that gave it authority, as recorded in I.L.R. 3 Cal. 63 at pages 90 and 91. The learned Judge dismissed the argument that relied on earlier legislative practice, holding that the cited examples were not clear and undisputed instances of a transfer of legislative authority. In a dissenting opinion, the learned Chief Justice explained that the Act of 1833 conferred legislative powers on the Governor-General in Council using language that, for the purposes of the present case, was equivalent to the powers later granted by the Councils Act of 1861. He further noted that since the enactment of the 1861 Act, the Governor-General in Council had routinely exercised those powers through senior officials and public bodies, to whom a broad discretion had been given for that purpose, as noted on page 140 of the same report. The Chief Justice argued that it could not be presumed that the Imperial Parliament would have reiterated in the Councils Act of 1861 the legislative powers already exercised by the Governor-General in Council if it had disapproved of the legislative course pursued. He observed that Parliament, aware of the relevant circumstances, deliberately renewed in the Councils Act the powers originally granted by the Act of 1833, and that this renewal amounted to a statutory acknowledgment that the legislature’s actions under those powers were authorized by the Act, as quoted on page 144. Consequently, the learned Chief Justice concluded that Act XXII of 1869 constituted a law that the legislature was justified in passing.

The author then referred at length to the reasoning and conclusions of the High Court judges, indicating that this discussion would assist in comprehending the full significance of the Privy Council’s judgment. It was noted that the approach taken by Government counsel in the High Court had been endorsed by the Privy Council as the appropriate method for resolving the issue. Specifically, the Court held that the proper inquiry was whether the action taken fell within the general scope of the affirmative language that granted the power, and whether it breached any express condition that limited that power. The Court further stated that if no express condition was violated, no court should delve deeper or expand those conditions and restrictions by constructive interpretation. This principle, which had previously been reiterated in Hodge’s case (9 App. Cas. 117), established two key points: first, that the scope of judicial review in such matters was confined to determining whether the challenged enactment lay within the law-making authority conferred on the legislature and whether it contravened any explicit condition limiting that authority; and second, that in assessing any alleged breach, the Court must focus solely on the express conditions and must not enlarge them inferentially through interpretation.

In this matter the Court held that the question before it required consideration only of conditions that were expressly stated in the legislation and that the Court should not expand those conditions by inference through interpretation. The Court further declared that it rejected the doctrine, which it had also rejected in relation to a provincial legislature in Canada in Hodge’s case [9 App. Cas. 117], that the Indian Legislature could be treated as an agent or delegate of the Imperial Parliament and that the rule prohibiting an agent from delegating authority applied to the Indian Legislature. The Court also dismissed the distinction drawn by Markby J. which described the Indian Legislature as “restricted to the ………making of laws” in the sense given by Blackstone, whereas Parliament was said not to be so restricted; in other words, Markby J. had held that Parliament could enact a law delegating its legislative power, but the Indian Legislature could not do the same. The Court rejected this view and affirmed the English doctrine of supremacy within limits as applicable to the Indian Legislature, stating that when the Indian Legislature acted within the limits that circumscribed its legislative power it “has and was intended to have plenary powers of legislation as large and of the same nature as those of Parliament itself” (italics mine). Consequently, the Court concluded that the Indian Legislature is equally competent to enact a law delegating legislative power, both in quantity and quality, provided it remains within the prescribed limits.

The Court also observed that it agreed with the proposition that the Governor-General in Council could not, by any enactment, create in India a new legislative power armed with general legislative authority that was not established or authorised by the Councils Act, and that no such creation or attempt had been made in the present case. Counsel for the opposing side, Mr Chatterjee, argued that the remark concerning the Governor-General in Council’s incompetence to create a new legislative power referred to the subordinate agency or instrumentality to which legislative authority might be delegated, thereby negating the legislature’s right to delegate. However, the Court found that the context clearly showed that the Court was expressing agreement with Markby J.’s point that the Indian Legislature could not “change the legislative machinery in India without affecting the provisions of the Acts of Parliament which created that machinery.” This indicated that the Court was envisaging the establishment of a new legislative machinery not authorised by the Councils Act—essentially a new legislature comparable to the Central and Provincial Legislatures. While the Court affirmed that such a creation would be prohibited because it would contravene the Act of Parliament that grants no power to create additional legislatures, it further explained that this was not the situation in the impugned Act. The Court therefore held that Markby J. had erred in his reasoning and set out two reasons for this conclusion, the first being that “it is”.

It was observed that it is a misconception to describe the powers given to the Lieutenant-Governor—however extensive they may be—as if the effectiveness of acts performed under those powers depended on any legislative authority other than the Governor-General in Council. The Court explained that the entire operation of those powers is carried out directly and immediately by virtue of Act No. XXII of 1869 itself. In doing so, the Court reached the centre of the issue by distinguishing the nature of delegated legislation from the creation of a new legislative body. The Court noted that later decisions would develop this point further, but it was already clear that there was a common “fallacy” in treating delegated legislation as being of the same constitutional character and producing the same consequences as the establishment of an independent legislature. This mistaken view, the Court suggested, accounted for much of the confusion surrounding the subject.

The Court recalled the decision in Hodge’s case (9 App. Cas. 117), where it was held that in delegated legislation the body that delegates power does not extinguish its own legislative authority; rather, it retains its full legislative power and chooses to exercise that power through a chosen agency or instrumentality. Moreover, the delegating body is not bound permanently to that agency; it may abolish the agency, create a different one, or take the matter back into its own hands. In Burah’s case (5 I.A. 178), the Court emphatically affirmed that an act performed by a body to which legislative power has been delegated derives its entire force and effect from the delegating legislature. In other words, when the delegate acts under the delegated authority, it is effectively the legislature acting through its appointed instrument.

The Court contrasted this with the situation where a new legislative body is created that possesses general legislative authority and operates independently. In that scenario there is no delegation to subordinate units; instead, power is granted to an independent, co-ordinate body that can make laws of its own force. According to English constitutional law, the first scenario does not require an explicit provision authorising delegation, provided there is no constitutional prohibition and the delegating body retains its legislative power. By contrast, the second scenario—establishing a new legislature—requires a positive enabling provision in the constitution.

The Court gave a second reason for rejecting the majority view. It held that Act XXII of 1869 was, in reality, merely conditional legislation and did not involve the delegation of legislative power. The Court opined that when the Lieutenant-Governor fixed the commencement date of the Act or expanded its territorial scope, he was not performing “an act of legislation.” Instead, the proper legislature exercised its judgment regarding place, person, laws, and powers, and the result of that judgment was to legislate conditionally with respect to those matters. The conditions imposed by the legislature, once fulfilled, would render the legislation absolute.

The Court observed that once the conditions specified in a conditional enactment had been satisfied, the enactment acquired an absolute character. It held that where full legislative authority existed over a particular subject, whether that authority was vested in an Imperial legislature or a Provincial legislature, such authority could be exercised, in the Court’s view, either in an unrestricted manner or subject to conditions. The Court explained that legislation which was conditioned upon the use of specific powers or upon the exercise of a limited discretion, and which was entrusted by the legislature to persons whom the legislature trusted, was a common occurrence and could, in many situations, be highly convenient. The Court noted that the British statute book contained numerous examples of such conditional legislation and that it could not be presumed that the Imperial Parliament, when it created the Indian Legislature, had failed to contemplate this form of conditional legislation within the legislative powers it periodically granted, especially since the Parliament had used no language to exclude such a possibility. The Court then turned to the practice in India of delegating to the executive government a discretionary power to extend statutes to new territories, sometimes subject to a “restriction, limitation or proviso” deemed appropriate by the Government. The Court expressed approval of the reasoning of Garth C.J. in that context. The Court warned that if it were to adopt the majority view of the High Court, without a distinction based on matters beyond judicial competence, it would cast doubt on the validity of a long series of statutes that were, as far as the Court could assess, suited to India’s unique circumstances. The Court said it could find no basis for such doubt in either the affirmative or the negative wording of the Indian Councils Act, 1861. The Court emphasized that it was not within the court’s competence to differentiate between degrees of delegation, whether extensive or slight, and that the validity of any delegation must rest upon the explicit or implicit language of the Constitution Act. Finally, the Court referred to the decision in Co-operative Committee on Japanese Canadians v. Attorney-General for Canada, where the issue was whether an order made by the Governor-in-Council under authority delegated by the Canadian Parliament constituted a law of the Parliament under the Statute of Westminster. The Court noted that although the delegation to the Governor occurred before the Statute of Westminster, the Governor’s order was issued after the Statute, and the Court held that such an order was a “law” made by Parliament at the moment the delegated power was exercised, thereby confirming that the law took effect after the date of the Statute.

The Court observed that Parliament alone possessed the legislative authority for the entire Dominion and that it had elected to enact law by means of the machinery it had established and continued for that purpose. Consequently, the Governor in Council did not enjoy an independent status as a law-making body. The legislative activity of Parliament persisted at the moment the orders were issued, and those orders therefore qualified as “law”. In the opinion of the judges, such orders were to be regarded as law made by Parliament on the date they were promulgated, as recorded in the cited report at pages 106-107. Counsel for the petitioner — Mr Chatterjee — argued that in Burah’s case (5 I.A. 178) the Privy Council had merely held that the type of legislation described there as “conditional legislation” fell within the competence of the Indian legislature and was valid, and that the considerations used by the judges to uphold that legislation were irrelevant to the present question of validity. The Court acknowledged that the legislation under scrutiny in the present matter was not of the conditional type, because the operation of the impugned Acts did not depend on the exercise of discretion by an external authority. Nevertheless, the Court rejected the submission that Burah’s case applied only to situations involving conditional legislation. It was pointed out that the decision in Burah’s case articulated general principles of wide importance, principles that were later described in Powell’s case (10 App. Cas. 282) as “laying down the general law” and as putting an end to the mistaken view that a subordinate legislature acted merely as an agent or delegate of the superior legislature.

Mr Chatterjee further relied on a dictum of Lord Haldane in the Referendum case ([1919] A.C. 935). In that case the judges held that the Initiative and Referendum Act of Manitoba was ultra vires the Provincial Legislature because it compelled the Lieutenant-Governor to submit a proposed law to a body of voters entirely separate from the legislature of which the Lieutenant-Governor was the constitutional head, thereby rendering the Lieutenant-Governor powerless to prevent the law from taking effect if the voters approved it. The court reasoned that the power to amend the Constitution of the Province, conferred on the Provincial Legislature by the British North America Act, 1867, excluded from its scope “the office of the Lieutenant-Governor”. Lord Haldane then observed that Section 92 of the 1867 Act assigned legislative power in a province exclusively to its legislature and to that legislature alone. He noted that a body possessing legislative power as extensive as that of a Canadian provincial legislature could, while preserving its own capacity, seek assistance from subordinate agencies, as had been allowed in Hodge v. The Queen (9 App. Cas. 117) where the Legislature of Ontario was permitted to delegate to a Board of Commissioners authority to make regulations concerning taverns. However, Lord Haldane cautioned that such delegation did not authorize the legislature to create a new legislative power of its own, a principle that the Court found relevant to the issues raised in the present appeal.

In this case, the Court observed that the earlier observations of Lord Haldane merely highlighted the seriousness of the constitutional issues that could arise if a body attempted to create, within its own capacity, a new legislative power not established by the governing Act on which its existence depended. Their Lordships merely drew attention to the gravity of those constitutional questions, as recorded in the citation [[1919] A.C. 935, 945]. Counsel for the petitioner, Mr. Chatterjee, argued that the grave constitutional question identified by Lord Haldane was also present in the present dispute. The Court disagreed with that submission, stating that it did not consider the present matter to raise the same constitutional difficulty. The Court further explained that the dictum, similar to Lord Selborne’s observation in Burah’s case [5 I.A. 178] concerning the power of the Governor-General in Council “to create in India and arm with general legislative authority a new legislative power,” was intended to envisage the unauthorised creation of an entirely new legislature possessing an independent law-making status. According to the Court, such a creation is fundamentally different from the ordinary delegation of legislative power, and the earlier remarks concerning that observation therefore applied equally to the present case. The Court then turned to the only other Privy Council decision requiring reference, namely King Emperor v. Benoari Lal Sarma [72 I.A. 57]. That case involved an appeal from a Federal Court of India judgment reported in [1943] F.C.R. 96, which held that sections 5, 10 and 16 of the Special Criminal Courts Ordinance (No. II of 1942) enacted by the Governor-General under his emergency powers were ultra vires and therefore invalid. The Court explained that the decision was based on the finding that, although section 26 of the Ordinance formally removed the High Court’s powers, the substantive removal occurred through orders issued by the executive officer designated by sections 5, 10 and 16, directing which offences or classes of offences and which cases or classes of cases were to be tried by the special courts established under the Ordinance. Because those sections purported to grant the executive officers absolute and uncontrolled discretion without any legislative provision or policy direction setting the conditions for exercising such power, the Court held that they exceeded the Governor-General’s competence. Chief Justice Varadachariar, with whom Justice Zafrulla Khan concurred, examined the broader issue of delegation of legislative powers. While acknowledging, in light of the earlier Privy Council decisions, that the Governor-General’s emergency legislative authority was co-extensive with that of the Indian Legislature and thus could not be considered a delegate of the Imperial Parliament, the Court noted that the maxim delegatus non potest delegare therefore did not apply. Nevertheless, the Court expressed the view that nothing in those decisions conflicted with the principle derived from an American authority cited by the Advocate-General of India, which stated: “The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it”.

The Court recited the remark of Judge Ranney of the Supreme Court of Ohio, a passage often quoted in American decisions, which observed that “the first cannot be done, to the latter no valid objection can be made.” The learned Chief Justice then turned to the body of American case law dealing with the delegation of legislative powers, as well as to the scholarly commentary on administrative law, and formulated a comprehensive conclusion. He noted that, as previously observed, the considerations and safeguards outlined in the preceding passages might amount to nothing more than matters of policy or expediency when viewed under the English Constitution. However, he argued that in constitutional systems such as those of India and the United States, where the validity of legislation is subject to judicial scrutiny, those very considerations become an integral and essential component of the limitation on how far a legislature may delegate responsibility to the executive. Applying this principle to the case at hand, the Chief Justice held that it was impossible to deny that the authority responsible for making the Ordinance had completely avoided any duty to specify rules, conditions, or even a policy that would guide the allocation of cases between ordinary criminal courts and special courts. Instead, the authority had left the entire matter to the unfettered and uncontrolled action of the executive officials. He emphasized that this observation was not a critique of the substantive policy of the law, as the Crown’s counsel might suggest, but rather a complaint that the statute failed to provide any policy or principle to direct and restrain the exercise of the undefined powers that had been conferred on the executive by sections 5, 10 and 16 of the Ordinance. The passage from the Federal Courts Reports (1943) at pages 96, 139-140 was cited to support this analysis.

The judgment then set out, at some length, the reasoning and conclusion of the learned Chief Justice because it encapsulated and endorsed much of what had been advanced by counsel for the petitioner, Mr Chatterjee, who argued that the American rules governing the delegation of legislative powers should be adopted in this jurisdiction in preference to the views expressed by English judges on the subject, and that an overly broad and uncontrolled delegation must be deemed invalid. The Privy Council, however, rejected this line of reasoning and the conclusions drawn by the majority of the Court in a clear and emphatic pronouncement. The Privy Council members dismissed the notion that considerations which might be regarded merely as policy or expediency under the British Constitution could, in India as in America, become constitutional constraints on the delegation of legislative responsibility solely because the constitutionality of legislation is subject to judicial review under the Indian Constitution. In their words, “With the greatest respect to these eminent Judges, their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of …” thereby reaffirming the traditional approach of interpreting the statutory language rather than imposing policy-based limitations.

In this case the Court examined the legislative power that the Governor-General possessed under the Government of India Act and compared it with the provisions of the ordinance that he attempted to employ, following the traditional method of analysing the wording of the Act. The Court observed that, although it might be wise in well-crafted legislation, when circumstances allow, to enact a statute so that an offender knows in advance which court will try him for a particular offence, that consideration belongs to policy rather than to law. The Court further stated that there is nothing in the Indian Constitution that would invalidate a statute—whether enacted by the Central Legislature or by the Governor-General exercising emergency powers—if it conforms to this principle. It added that there is no doubt that the Parliament of Westminster could validly provide that the choice of courts should rest with an executive authority, and the Court could not find any valid reason why the same discretion should not be conferred in India by the law-making authority, whether that authority is the Legislature or the Governor-General, as part of the power to make laws for the peace, order and good government of India. The English doctrine of supremacy within limits was therefore reaffirmed, and its corollary applied as the decisive test: whatever the British Parliament could do, the Indian legislature and the Governor-General, acting within their delegated sphere, could also do. The judgment noted that an “unguided and uncontrolled” discretionary power affecting the liberty of a subject had been delegated, describing it in the words of an American judge as “unconfined and vagrant” and not “canalised within banks that kept it from over-flowing” (Cardozo J. in Panama Refining Co. v. Ryan, 293 U.S. 388). Nevertheless, the delegation was upheld because the Court could not locate any constitutional limitation on it. The Court also referred to a passage in its own judgment that, when isolated, might seem to accept the maxim delegatus non-potest delegare as a principle of English constitutional law, a point that Mr Chatterjee seized upon as supporting the American view. The passage read: “It is undoubtedly true that the Governor-General, acting under section 72 of Schedule IX, must himself discharge the duty of legislation there cast on him, and cannot transfer it to other authorities.” However, this remark was made in response to the second objection, namely that section 1(3) of the ordinance amounted to delegated legislation by which the Governor-General, lacking legal authority, attempted to pass the decision on whether an emergency existed to the Provincial Government instead of deciding it himself.

The judgment began by quoting the opening clause of section 72 of Schedule IX of the Government of India Act, which declared that “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 in question was therefore stated to have been enacted openly as an exercise of a special power that allowed legislation to be passed to meet an emergency. The argument presented was that this power necessarily required the Governor-General to apply his own personal judgment and discretion, and that such judgment could not be handed over to the Provincial Government or to its officers. The judges accepted the central premise that the Governor-General’s discretion was essential, but they then observed that no delegation of his legislative authority had actually taken place; instead, what had been done was described as “conditional legislation.” Referring specifically to the emergency ordinance-making power, the judges reiterated that the Governor-General himself had to exercise the power and could not transfer it to any other authority. The wording “acting under section 72 of Schedule IX” and “there cast on him” clarified the meaning, and the passage cited by counsel did not, in the judges’ view, support a broader claim that legislative power was generally non-delegable.

Applying the authorities previously discussed, the judge concluded that section 7 of the Delhi Laws Act, 1912, fell within the affirmative language of section 22 of the Indian Councils Act, 1861, which vested law-making power in the Governor-General in Council. Consequently, that provision did not breach any of the negative clauses that restricted the same power. The same line of reasoning led the judge to hold that section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, was also constitutional and valid. That Act had been enacted by the Dominion Legislature of India, and its authority derived from section 99(1) of the Government of India Act, 1935. Although the Indian Independence Act, 1947, removed certain limits on the Central Legislature’s law-making competence and omitted section 108 of the Constitution Act, the substantive wording of section 99(1)—“may make laws for the whole or any part of the Dominion”—remained unchanged. While legislative powers between the Dominion and the Provinces were allocated according to the lists in Schedule VII, this allocation did not curtail the Dominion Legislature’s power to legislate for the areas known as Chief Commissioners’ Provinces, of which Ajmer-Merwara was one. This point was clarified by reading section 100(4) together with section 46. Therefore, section 2 of the challenged Act constituted a law that the Dominion Legislature was competent to enact, and the restrictive phrase “subject to the provisions of this Act” had no effect, as no provision was introduced that would affect the validity of the law.

In this matter, the Court examined the meaning and scope of the terms “restrictions” and “modifications” that appeared in the provisions being challenged. One counsel, identified as Mr. Chatterjee, argued that the presence of those words would permit the executive authority to change or amend any law that it chose to apply to the territories concerned. He contended that a power of such an undefined magnitude could not be validly delegated by the legislature because it would amount to an unlawful surrender of legislative authority. Conversely, the Attorney-General put forward a different interpretation. He suggested that, in this context, the word “modification” was generally understood to mean “making a change without altering the essential nature of the thing changed.” According to this view, the use of the term would not affect the delegability of the legislative power. The Attorney-General also referred to a passage taken from a Privy Council decision in Burah’s case, where the Council observed that the power conferred on a local government by Act XXIII of 1861 to extend the Civil Procedure Code of 1859 “subject to any restriction, limitation or proviso which it may think proper” was not invalid. The Court held that, however broadly the expression might be interpreted, it could not render the delegating statute unconstitutional because neither the 1935 Government of India Act nor the Constitution of India imposed a limitation on the delegation of legislative powers to a subordinate body. The Court noted that the Privy Council had likewise given little weight to the wording of section 39 of Act XXIII of 1861, reinforcing the view that such language did not create a constitutional barrier to delegation.

The Court then turned to section 2 of the Part C States (Laws) Act, 1950. That provision was drafted in the same manner as the two other challenged provisions, except that it added a clause authorising the repeal or amendment of any corresponding law, other than a Central Act, that was then in force in the State. The Court observed that this additional clause did not present a new difficulty. If the Constitution did not prohibit delegation of legislative power, then such delegation could also extend to the power to repeal, as well as to the power to modify, and the Court could not deem the delegation ultra vires. Consequently, the constitutional validity of the added clause depended entirely on the validity of the first part of the section. The essential question, therefore, was the status of delegated legislation under the present Constitution. The Court noted the absence of Privy Council decisions directly addressing this issue under the current constitutional framework, unlike the earlier authorities concerning the Indian Councils Act, 1861, and the Government of India Act, 1935. Nevertheless, the Court affirmed that the approach previously articulated in those decisions and in numerous other cases should be followed, not because those decisions were binding, but because that approach represented the correct method for resolving questions of this nature. The Court emphasized that the appropriate analysis must begin with the constitutional text, determining whether the impugned enactment falls within the law-making authority granted to the legislature and whether it respects any constitutional restrictions, a principle that would guide the subsequent assessment of the provision’s validity.

There is no material distinction between the English and the American rulings on the issue of delegated legislative authority. Both jurisdictions accept that the proper method for resolving such questions is to examine the constitutional document itself and to determine firstly whether the challenged enactment lies within the scope of the law-making power that the constitution grants to the legislature which enacted it, and secondly whether the enactment violates any constitutional restrictions or limitations placed on that power. If the enactment satisfies both of these criteria, it must be held to be constitutionally valid.

Accordingly, the Court first turned to the text of the Constitution. Article 245 provides that, subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India. This language confers a law-making competence on Parliament that is essentially the same as the powers discussed in the earlier authorities. Article 246 then sets out the distribution of legislative authority between Parliament and the State legislatures listed in Parts A and B of the First Schedule. Although Article 246(4) – analogous to section 100(4) of the Government of India Act, 1935 – states that Parliament may legislate on any matter for any part of the territory not included in Parts A or B, even if that matter appears in the State List, this distribution scheme does not alter the core question before the Court.

The situation, therefore, parallels the position that existed under the Indian Councils Act, 1861 and the Government of India Act, 1935 insofar as the wording that confers law-making authority is concerned. The Court then asked whether the impugned statute, which merely seeks to delegate law-making power to the Central Government for the Part C States, qualifies as a “law” within the meaning of article 245(1). The statute was undeniably enacted by Parliament following the prescribed legislative procedure, and there is no reason to deny that it constitutes a law. The Court recalled that the narrow construction of the term “law” proposed by Markby J. in the Indian Councils Act case, based on Blackstone’s definition of a law as a binding rule of conduct, was rejected by the Privy Council in Burah’s case. Even assuming that a simple delegation of legislative power were not classified as a law “with respect to” any of the subjects enumerated in the three Lists, it would still fall within Parliament’s residuary legislative authority under article 248.

The next issue examined whether any constitutional provision expressly forbids the making of such a law. The principal constraints on the legislative powers of Parliament and the State legislatures are found in Part III of the Constitution, which enumerates the Fundamental Rights. The Court noted that it had not identified any specific provision in that Part, or elsewhere in the Constitution, that bar or implicitly prohibits the enactment of a law delegating legislative authority to a subordinate agency chosen by Parliament.

The Court observed that no provision in Part III or elsewhere in the Constitution expressly prohibits, nor has the effect of prohibiting, a law that delegates legislative authority to a subordinate agency chosen by Parliament. Counsel for the petitioner, Mr. Chatterjee, vigorously argued that the Preamble shows the people of India resolved, exercising their sovereign right, to adopt, enact and give to themselves the Constitution. He contended that Parliament, whose duty is to make laws for the territories of the Union, must therefore be deemed a delegate of the people. He further argued that this conception invites the application of the maxim delegatus non potest delegare, which operates as an implied prohibition against any delegation of legislative power by Parliament or any other legislature. The Court noted that, in a broad sense, the people have transferred legislative, executive and judicial powers to the respective organs of the State. At the same time, the people reserved for themselves the fundamental rights, and the Constitution safeguards those rights by forbidding any law that takes away or abridges them. The Court observed that this limited similarity to the American model does not make the principle of separation of powers, as interpreted by American courts, an essential feature of the Indian Constitution. Consequently, Indian legislatures are not deemed delegates of the people in a manner that would bring the maxim delegatus non potest delegare into constitutional effect. The Court further explained that the historical background and political circumstances that shaped the American Constitution were absent in India. Beyond establishing three State organs for convenient governance, there is no indication that the framers intended the American doctrine of separation of powers. That doctrine, which requires absolute separation and vesting in different hands as the basis of liberty, was not meant to be an integral component of the Indian Constitution. The Court pointed out that, by providing for a Council of Ministers to aid and advise the President and by making that Council responsible to House of the People, the Constitution followed the British model. It thereby created a fusion of legislative and executive functions, which negated any clear-cut division of governmental power into three branches as required by the American doctrine. The Court concluded that, without such a doctrine being incorporated into the Constitution as a structural foundation, the maxim delegatus non potest delegare could not acquire constitutional status. It could only exist as a political principle to guide legislatures in a democratic polity of elected representatives.

The Court observed that although elected representatives are charged with the duty of making laws, that duty cannot be enforced by a court as a rule of constitutional law when the legislature shirks or evades it. It noted that American courts are able to enforce the maxim because judicial construction has incorporated it into the United States Constitution as a necessary corollary of the doctrine of separation of powers. By contrast, the Court pointed out that the situation in India is entirely different. Indian courts, it held, do not have the authority to strike down an Act of Parliament as unconstitutional merely because Parliament, in a particular case, chooses to entrust its legislative power to another body or individual in whom it has confidence, that is, to exercise that power through an appointed instrumentality, even if such entrustment appears contrary to the democratic process. The Court emphasized that what may be politically undesirable can nevertheless be constitutionally competent.

Regarding the argument advanced by counsel that article 357(1)(a) of the Constitution implies a prohibition against delegation, the Court explained that the article expressly provides for delegation by the President of the law-making powers conferred on him by Parliament when a state’s constitutional machinery fails. Counsel contended that this specific provision demonstrates that whenever the framers intended to authorize delegation they made an express provision, and that in the absence of such a provision delegation should be deemed impermissible. The Court rejected this line of reasoning. It held that the existence of a special provision for a rare and extraordinary circumstance does not allow an inference that the Constitution intends to prohibit delegation in all other cases. The maxim expressio unius est exclusio alterius is not of universal application, and it is inconceivable that the framers would have intended to deprive Indian legislatures of a power that is widely recognised as a desirable, if not necessary, aspect of contemporary legislative activity.

The Court further observed that the United States, which began with a rule against delegation as a corollary of its separation-of-powers doctrine, has progressively relaxed that rule, and that English constitutional law has long permitted subordinate legislatures extensive latitude to delegate legislative powers provided they retain ultimate law-making authority. Consequently, a solitary provision for express delegation in a remote contingency is a flimsy basis for inferring a general prohibition against delegation of legislative power in all other circumstances. In this connection, the Court recalled Lord Selborne’s observation in Burah’s case that the court’s task in adjudicating the constitutionality of an enactment is simply to ensure that it does not violate any express condition or restriction placed on the legislature’s conferred law-making power.

The judgment observed that the principle articulated by Lord Selborne in the Burah case—that a court must not expand the conditions or restrictions placed upon a delegated power—remains binding. It further noted that, as early as 1944, the Privy Council in the case of Benoari Lal Sharma reaffirmed a long-standing doctrine of English constitutional law, namely that the Indian legislature possessed the same authority to delegate its legislative powers as the British Parliament. The Court found it implausible that the framers of the Constitution of the Independent Republic of India would disregard the accumulated experience of legislative bodies worldwide and would withhold from Parliament a power that its historical predecessors undeniably exercised. Consequently, the Court rejected the contention that such delegation was impermissible. In its final assessment, the Court declared that Section 7 of the Delhi Laws Act 1912, Section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947, and Section 2 of the Part C States (Laws) Act 1950 are each fully constitutional and valid, thereby answering the reference in the affirmative. This holding was recorded by Justice Mahajan.

The Court explained that, under Article 143(1) of the Constitution, the President of India had referred three specific questions for advisory opinion. The first question asked whether Section 7 of the Delhi Laws Act 1912, or any of its provisions, was ultra vires the legislature that enacted it, and to what extent. The second question concerned whether the Ajmer-Merwara (Extension of Laws) Act 1947, or any of its provisions, was ultra vires its enacting legislature, and to what extent. The third question inquired whether Section 2 of the Part C States (Laws) Act 1950, or any of its provisions, was ultra vires the Parliament, and to what extent. The reference was described as raising matters of great importance for the administration of the Republic and as the first such reference since the Constitution’s commencement. The sole issue presented was the validity of the cited statutes. The Attorney-General argued that legislative power without the authority to delegate is ineffective, asserting that the true scope of Parliament’s legislative power includes the capacity to confer law-making authority on bodies other than Parliament itself, a consequence of parliamentary supremacy. He further maintained that the Indian legislature, when exercising its plenary powers, enjoys authority comparable in magnitude and nature to that of the British Parliament, and that, provided no express limits are transgressed, no question of ultra vires can arise. The Court indicated that the appropriate approach is to examine the terms of the enactments, determining whether they operate within the affirmative grant of power and do not violate any express condition or restriction.

The Court observed that the proper method for determining the limits of legislative power was to examine the instrument that positively creates the authority to legislate and that which negatively restricts it. It held that when a statute falls within the general ambit of the affirmative language that confers power, and when it does not breach any express condition or limitation that confines that power, no court of justice may inquire further or expand those conditions and restrictions by constructive interpretation. The Court cited the authority in Queen v. Burah, 5 I.A. 178, to support this principle. It also placed reliance on the legislative practice found in India and other Commonwealth countries, wherein statutes drafted in the same form as the challenged enactments have been upheld as constitutional.

The matters referred to by the Court covered three distinct eras of legislation in the constitutional and political history of the country. The first era related to the period when the government operated under a unitary system established by the Indian Councils Act, 1861, as amended up to the introduction of the Morley-Minto reforms. During that time the Indian Legislature evolved into a political debating body, and the capital was moved from Calcutta to Delhi following the reversal of the partition of Bengal. The unitary system was later transformed, after the various Round Table Conferences in London, into a federal structure by the Constitution Act of 1935. That Act, with certain adaptations, remained in force until 26 January 1950, when the new Constitution was inaugurated. Under the Independence Act, 1947, India became a Dominion of the British Empire, but the legislative authority of the Dominion’s Parliament continued to be governed by the Constitution Act of 1935, even though the Parliament, acting as a Constituent Assembly, was granted unlimited sovereign powers. The federal form adopted by the 1935 Act was also incorporated by the framers of the new Constitution.

The second question concerned the period when India held Dominion status under the Indian Independence Act. The third and final question addressed the legislative competence of Parliament under the Constitution of the Republic of India. The Court remarked that by the year 1951 it was pointless to ask whether delegated legislation was necessary. It described delegated legislation as a particular facet of the broader issue of administrative discretion. The Court recognized that delegating rule-making authority on a large scale to administrative bodies is a fundamental reality of modern industrial society, just as the State assumes certain social-welfare obligations. However, the Court emphasized that the real challenge lay in confining and controlling delegated legislation and administrative discretion so that they conform to the basic principles of law in a democratic society. According to the Court, the solution to this problem must be found within the Constitution of the relevant country and must be interpreted by lawyers or jurists in a constructive, rather than a purely legalistic, manner.

In discussing the background, the Court observed that it was useful to examine how other jurisdictions had addressed the issue. The Court noted that in England, traditionally regarded as the mother of parliaments, the legislature often delegated minor legislative authority to subordinate bodies. While some commentators argued that such delegation was wholly unwise and should be eliminated, the Court cited A.V. Dicey’s view that it was impractical for Parliament to work out the details of sweeping legislative reforms because doing so would produce unwieldy and verbose statutes. The Court also referred to Sir William Blackstone, who asserted that delegating powers of this nature was essential for the effective conduct of government. Constitutional practice, the Court explained, had developed gradually whenever necessity arose in Parliament, without a single logical system, and Parliament had delegated authority for various reasons, including the need for detailed treatment, technical complexity, or the pressure of other parliamentary demands. Since Parliament was considered supreme and its power unlimited, it acted according to what it deemed appropriate. The Court emphasized that the doctrine of ultra vires had no foothold in a system where parliamentary supremacy dominated. It further stated that the notion of parliamentary sovereignty was fundamentally at odds with the rigid and inflexible constitutions of countries that had adopted representative government schemes. In England, the Court explained, supremacy of law merely meant the right of judges to control the executive and did not carry greater constitutional significance. The basis of power in England, according to the Court, lay in the legal supremacy of Parliament and its unrestricted authority to make law. The Court quoted Edward Coke, who described Parliament’s power as “so transcendent and absolute as it cannot be confined either for causes or persons within any bounds,” and also quoted Blackstone, who described an act of Parliament as “the exercise of the highest authority that this kingdom acknowledges upon earth… It hath power to bind every subject in the land, and the dominions thereunto belonging; nay, 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” (see Allen, Law in the Making, 3rd edition, p. 367). The Court further observed that, as a legal omnipotent despot, Parliament could, apart from being a simple legislature, exercise its sovereign power to delegate legislative functions or even create new bodies endowed with law-making authority. The Court held that the power of delegation was not necessarily implied in the mere power to legislate, but could be inferred from Parliament’s absolute sovereignty. Whether Parliament exercised delegation as a mere legislature or as an omnipotent sovereign, the Court argued, there was no judicial benchmark or scrutiny applicable, because English courts could not examine Parliament’s exercise of this power. Consequently, the Court concluded that the assertion that Parliament exercised delegation solely in its legislative capacity possessed no more weight than an unsubstantiated statement.

For the reasons mentioned, the Court expressed respectful agreement with the opinion of the eminent judge and jurist Varadachariar J., as articulated in the case of Benoari Lal Sarma [[1934] F.C.R. 96]. The Court noted that Varadachariar J. observed that India’s constitutional position resembles the American model more closely than the English model, and that, on this point, the decisions of the United States, wherever they establish a principle, serve as a valuable guide. This observation received supporting weight from the fact that the constitutions of the United States and India differ fundamentally in kind and character, falling into two distinct classes with different characteristics. England, the Court explained, possesses a unitary form of government and a flexible constitution, whereas India has always operated under a rigid constitution that, since the enactment of the Constitution in 1935, has taken a federal form. Consequently, the Court warned that it would be unsafe to draw any deductions about legislative power from a system of government that differs essentially in kind, not merely in degree, from another system. In the Court’s view, attempting to solve the present problem by such comparative deduction would inevitably lead to no result. Accordingly, the Court expressed no hesitation in rejecting the learned Attorney-General’s contention that the answer to the questions referred should be derived by reference to Parliament’s power to delegate legislative authority to the executive. 172 173

The Court also observed that, despite the broad powers enjoyed by the British Parliament, that Parliament has historically pursued a policy of self-restraint concerning delegated legislation. To examine this policy, a committee—commonly known as the Donoughmore Committee—was appointed to report on the powers of Ministers. The Committee made recommendations and set out the limits within which delegated legislation should be exercised, and later mechanisms were introduced to monitor such legislation closely. In its inquiry, the Donoughmore Committee identified a few instances where delegation had extended to granting a limited power to modify statutes of Parliament. One such instance occurred in section 20 of the Mental Treatment Act, 1930 (20 & 21 Geo. V, c. 23), which authorised the Minister of Health, by order, to alter the wording of an enactment as necessary to bring it into conformity with the provisions of that section. The purpose of the entire section was to revise terminology, replacing certain statutory expressions then considered offensive with newer, less objectionable terms. Another instance was discovered in section 76 of the Local Government Scotland Act, 1929 (19 & 20 Geo. V, c. 25), which empowered the Secretary of State, between 16 May 1929 and 31 December 1930, by order, to make any adaptation or modification in the provisions of any Act that was required to bring those provisions into conformity with the provisions of other Acts. Such a clause in a statute bore

The nickname “Henry VIII clause” was applied to provisions that gave a Minister the authority to alter the text of Acts of Parliament. The Committee examined this type of provision and issued a recommendation that read as follows: “The use of the so-called Henry VIII clause conferring power on a Minister to modify the provisions of Acts of Parliament (hitherto limited to such amendments as may appear to him to be necessary for the purpose of bringing the statute into operation) should be abandoned in all but most exceptional cases and should not be permitted by Parliament except upon special grounds stated in a ministerial memorandum to the bill. Henry VIII clause should never be used except for the sole purpose of bringing the Act into operation but subject to the limit of one year.” 174 The wording of this recommendation makes clear that even in a jurisdiction where Parliament is supreme, the exercise of a power to modify parliamentary statutes has been extremely rare and, when it has existed, the Committee advised that it should be discontinued. It is noteworthy that, after the Committee’s report, Parliament has not employed a Henry VIII clause. 175 The Dominion of Canada operates under a written constitution, the British North America Act (30 & 31 Vict., c. 31). This constitution is not fashioned on the doctrine of an exclusive division of power among separate legislative, executive and judicial departments, and it does not create three impermeable compartments. In this respect it resembles the British constitutional arrangement, where the King remains a component of the legislature, the House of Lords participates in both legislative and judicial functions, and the various branches of government check one another. Nevertheless, this similarity does not mean that the Canadian legislature is of the same character as the British Parliament; rather, it is a non-sovereign legislature, comparable to other colonial parliaments. 176 The jurisprudence of Canadian courts on the question of whether the Canadian Parliament may delegate legislative authority is far from uniform. Many of the recent decisions cited in the record were rendered under the extraordinary circumstances of the two World Wars and relied upon the emergency powers granted by the War Measures Act. With due respect and humility, the author observes that the reasoning employed in those cases to sustain the validity of delegated powers is unconvincing and lacks a solid doctrinal foundation. Such arguments appear to be justified only on the basis that, during periods of national emergency and danger, the Dominion Parliament can enact measures that it would not be competent to pass in peacetime. A number of Privy Council decisions have examined the validity of Canadian legislative enactments that purported to transfer legislative power to external bodies, and these decisions seem to provide a more reliable guide to resolving the present issue than the later decisions of the Supreme Court of Canada, which appear to draw their support from those Privy Council rulings. 177

177. The Court referred to the later decisions of the Supreme Court of Canada that appear to draw their support from earlier Privy Council decisions concerning the rules articulated in those cases. The first of the cited Supreme Court decisions was Russell v. The Queen, reported in the 7 Appellate Cases at page 829 and decided in 1882. In that appeal two questions were presented. The first question concerned the validity of the Canada Temperance Act of 1878. Counsel argued that, in view of the distribution of legislative powers set out in the British North America Act, 1867, the Parliament of Canada did not have authority to enact that Act. The second question, which is the one relevant to the present enquiry, dealt with whether, assuming that the Dominion Parliament did possess the power it claimed to exercise under the Act, it nevertheless lacked the authority to delegate that power and to give local authorities the right to decide whether the provisions of the Act should become operative. The method by which the second part of the Act was to be brought into force can be summarised as follows: “On a petition to the Governor in Council, signed by not less than one-fourth of the electors of any country or city in the Dominion qualified to vote at the election of a member of the House of Commons, 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 adoption of the petition, the Governor General, after certain prescribed notices and evidence, may 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 it, the Governor-General in Council may, after the expiration of sixty days from the day on which the petition was adopted, by Order in Council published in the Gazette, declare that the second part of the Act shall be in force and take effect in such country or city, and the same is then to become of force and take effect accordingly.”

178. Counsel before the Court argued that even if the Parliament of Canada had the authority to enact legislation prohibiting and regulating the sale of intoxicating liquors, it could not lawfully delegate that authority, and that the Act in fact delegated the power to bring its prohibitory and penal provisions into force to a majority of the electors of counties and cities. The Lords’ response to this contention was expressed in these words: “The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority…”

In this matter, the Court explained that the clause requiring a petition signed by a majority of electors does not give those electors any power to make law. The Parliament itself establishes the condition and also determines everything that will happen once that condition is met. The Court observed that using conditional legislation in this way is often convenient, is not unusual, and that the Parliament of Canada may lawfully employ such a device when the subject matter falls within its constitutional competence. The Court fully endorsed the view expressed by Chief Justice Ritchie on this point and noted that, were any authority required to support the position, it could be found in the recent decision of Queen v. Burah (5 I.A. 178) before this Board. The commentary further noted that the Lords appeared to accept the counsel’s argument that a legislature cannot delegate its legislative power, and they responded by emphasizing that the Act does not delegate any legislative power at all. Consequently, the “short answer” to the objection was that any delegation of legislative authority is implicitly contained within the legislative power already possessed by the Parliament; it was not necessary to decide the case on the basis of the existence of conditional legislation. Although Queen v. Burah originated as an appeal from the High Court of Bengal, the Court referred to that case as establishing a suitable rule for decisions arising under the British North America Act, 1867, and therefore felt it essential to set out precisely what that case decided. Accordingly, the Court recounted the provisions of Act XXII of 1869 of the Council of the Governor-General of India, titled “An Act to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Acts, and for other purposes.” Section 4 of that Act declared that, except as later provided, the territory known as the Garo Hills was removed from the jurisdiction of both civil and criminal courts, from the control of revenue offices created by the Bengal Code regulations, and from any law imposed by those regulations or by any legislature previously established in British India; furthermore, no future law made by the Council of the Governor-General would apply to that territory unless it was expressly named. Section 5 then vested the administration of civil and criminal justice, the supervision of settlement and revenue collection, and all matters relating to rent within the Garo Hills in officers appointed by the Lieutenant-Governor, who could establish tribunals of first instance or of appeal as necessary for those purposes.

The judgment explained that the administration and superintendence mentioned earlier were required to remain under the direction and control of the Lieutenant-Governor, and that they had to follow any instructions that the Lieutenant-Governor might issue from time to time. Section 8 empowered the Lieutenant-Governor, by publishing a notice in the Calcutta Gazette, to extend to the specified territory any law, or any part of a law, that was then in force in other territories under his government, or any law that might later be enacted by the Council of the Governor-General or by the Lieutenant-Governor himself for the purpose of making laws and regulations. When the Lieutenant-Governor made such an extension, he could also direct who should exercise or perform the powers or duties arising from the extended provisions, and he could issue any order that he considered necessary to give effect to those provisions. Section 9 gave the Lieutenant-Governor further authority, again by notice in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills, and to any part of the Khasi Hills that at that time formed part of British India. Under the powers granted by the Act, the Lieutenant-Governor of Bengal issued a notification on 14 October 1871. By exercising the authority conferred by Section 9, he extended the entire Act to the territory known as the Khasi and Jaintia Hills, excluded that territory from the jurisdiction of the Courts of Civil and Criminal Judicature, and defined the boundaries of the area in the notification. The notification applied all provisions of the Act to the districts of Khasi and Jaintia Hills; the Lieutenant-Governor did not select only portions of the Act for local application, and Section 9 did not give him power to alter any of the Act’s provisions. The High Court of Bengal, by a majority judgment, held that the notification could not lawfully remove the said territories from the jurisdiction that the High Court previously possessed, because the Council of the Governor-General of India, under the Indian Councils Act 1861, had no authority to delegate such power to the Lieutenant-Governor, unlike the authority it possessed under Act XXII of 1869 which it had purportedly delegated. Section 22 of the Indian Councils Act 1861 (24 & 25 Vict. c. 67) conferred on the Governor-General in Council the power to make, repeal, amend, or alter any law or regulation then in force or to be made, to legislate for all persons—whether British, native, foreign, or others—covering all courts of justice, all places and things within the territories, and all servants of the Government of India within the dominions of princes and states, subject always to the limitations set out in that provision.

It was recorded that the Governor-General in Council was expressly prohibited from making any law or regulation that would repeal or otherwise affect any of the provisions of the Act. Concerning section 9 of the Act, the Court set out several observations. The majority of the Judges of the High Court had held that section 9 was not legislation but a delegation of legislative power. In the leading judgment of Mr Justice Markby, the doctrine of agency was invoked, and the Indian Legislature was treated as an agent or delegate of the Imperial Parliament, which, according to that view, must execute the mandate itself in every case. The Court noted that, if that doctrine were correct and justified the conclusion drawn from it, it would be impossible to maintain the distinction drawn by the majority of the Judges between the power conferred on the Lieutenant-Governor of Bengal by section 2 and the power conferred on him by section 9. Section 9 leaves it to the Lieutenant-Governor to determine whether the Act, or any part of it, shall apply to a particular district; likewise, section 2 leaves it to him to decide at what time the Act shall take effect as law in any place. Legislation that does not directly fix its own commencement period, but instead leaves that to an external authority, may be described as incomplete in the same way as legislation that does not itself immediately determine the whole area to which it is to be applied, but leaves that determination to the same external authority. If the act of the external authority to enlarge the area within which a law already in operation is to be applied is legislative, then, a fortiori, the act of that authority to bring the law into operation by fixing the time of commencement is also legislative. The Court, however, held that the doctrine advanced by the majority of the Court was erroneous and rested on a mistaken view of the powers of the Indian Legislature and of the nature and principles of legislation. The Indian Legislature possessed powers that were expressly limited by the Act of the Imperial Parliament which created it, and it could do nothing beyond those limits. Yet, when acting within those limits, the Legislature was not an agent or delegate of the Imperial Parliament; rather, it was intended to have plenary legislative powers of a scope and character comparable to those of Parliament itself. Consequently, when a question arose as to whether the prescribed limits had been exceeded, the established courts of justice were bound to determine that question by looking to the terms of the instrument that positively created the legislative powers and to the instrument that negatively restricted them. If the legislation fell within the general scope of the affirmative words that conferred the power and did not violate any express condition or restriction that circumscribed that power—including any Imperial Act that would be in variance with it—then no court of justice was entitled to inquire further or to enlarge constructively those conditions and restrictions.

In order to determine whether an act constitutes legislation, the Court explained that it must examine the terms of the instrument that created the legislative authority, considering both the express grant of power and the express limitations placed upon it. If the act falls within the general scope of the affirmative language that confers power, and if it does not breach any explicit condition or restriction that limits that power – including any contradictory provision of an Act of the Imperial Parliament – then no court may look beyond those terms or expand the conditions and restrictions by constructive interpretation.

The learned Attorney-General heavily relied on these observations to argue that, once legislation is within the field prescribed for the exercise of legislative power, the legislature may delegate its authority to the greatest possible extent. However, the Court cautioned that the quotation cannot be isolated from its surrounding context. The full passage continues: “Their Lordships agree that 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. Nothing of that kind has, in 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 courts and offices, to be appointed by and responsible to the Lieutenant-Governor of Bengal; leaving it to the Lieutenant-Governor to state at what time that change shall take place; and also enabling him, not to make what law he pleases for that or any other district, but to apply by public notification to that district any 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 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 of the Lieutenant-Governor; and also, that the laws 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 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 Lieutenant-Governor…”. Their Lordships further observed that it is a fallacy to describe the powers conferred upon the Lieutenant-Governor as independent of the Governor-General’s authority; the entire operation proceeds directly and immediately under the authority of Act XXII of 1869 itself.

In this matter, the Court observed that if the powers granted to the Lieutenant-Governor were exercised, the effectiveness of any acts performed under those powers would derive solely from the authority of the Governor-General in Council and not from any other legislative source. The Court explained that the entire operation of those powers functioned directly and immediately by virtue of Act XXII of 1869. It further noted that the appropriate legislature had exercised its own judgment in determining the appropriate location, the persons to be entrusted, the applicable laws, and the scope of powers, and that this judgment resulted in legislation that was conditional with respect to those elements. Once the conditions prescribed by the legislation were satisfied, the Court held that the legislation became absolute in character. The Court added that where full legislative authority exists over particular subjects—whether in an Imperial legislature or a provincial one—such authority may be exercised, in the Court’s view, either without limitation or on a conditional basis. Conditional legislation, which depends upon the use of specific powers or upon a limited discretion entrusted by the legislature to trusted individuals, was described as a familiar and often convenient practice. The Court pointed out that the British statute book contains numerous examples of such conditional enactments, and it could not be assumed that the Imperial Parliament, when establishing the Indian Legislature, had failed to consider this form of conditional legislation as falling within the legislative powers it periodically conferred. Moreover, the Parliament had not employed any language expressly excluding the possibility of conditional legislation.

Approaching the conclusion of its judgment, the Court referred to several illustrations of conditional legislation applicable in India. It cited the Codes of Civil and Criminal Procedure, and in particular highlighted section 39 of Act XXIII of 1861, which authorized the Local Government, with prior sanction from the Governor-General in Council (not in his legislative capacity), to extend the provisions of that Act “subject to any restriction, limitation or proviso which the Local Government may think proper.” The Court expressed the view that the judges did not affirmatively accept the proposition that the Indian Legislature possessed unrestricted power to delegate its legislative authority within its field, nor did they dissent from the earlier conclusion of Markby J. that, under general Indian law, any substantial delegation of legislative power by the legislature was void. Nevertheless, the Court observed that the legislation under discussion was of a conditional nature and would become complete only upon fulfillment of the stipulated conditions, and that the determination of those conditions could be allocated to an external authority. While the Court disapproved of the majority’s application of agency doctrine, which treated the Indian Legislature as an agent of the Imperial Parliament, it clearly stated that the exercise of legislative will and judgment could not be transferred to an external body. The proper legislature, the Court affirmed, must retain the authority to exercise its own judgment concerning the appropriate place, persons, laws, and powers. It further noted that, although the judges were not prepared to endorse the view that full delegation was permissible, they nevertheless recognized the conditional character of the legislation in question.

The Court observed that, although the judges were not prepared to resolve the issue by applying principles derived from the doctrine of agency, they also refused to abandon the established rule that, except where the doctrine of agency expressly applied, a person who was assigned an office or duty because of a special qualification could not lawfully transfer that duty to another person unless there was an explicit authority to do so. The Court further explained that public officials who were entrusted with public functions were required to perform those functions according to their own judgment and discretion, and that only to the extent necessary for the effective discharge of those duties could they employ subordinate officers who acted in a purely ministerial capacity.

For the reasons previously set out, the Court inferred that the Privy Council had not been willing to declare that delegation of legislative power was an inherent aspect of the legislative power itself. Instead, the Privy Council limited its holding to the view that the law remained valid when it was framed as “conditional legislation.” The Court found it difficult to imagine that the Privy Council would have hesitated to state that delegation of legislative power was a component of the power itself if it had intended to adopt such a position. In support of this conclusion, the Court referred to a passage from the judgment of Markby J., which read: “The various Parliamentary statutes nowhere confer any express power upon the Indian Legislature to change the machinery of legislation in India. But they do confer that power subject to important restrictions upon the executive government. Mr. Kennedy boldly claimed for the Indian Legislative Council the power to transfer legislative functions to the Lieutenant-Governor of Bengal. Indeed as I understand him, the only restriction he would attempt was that the Legislative Council could not destroy its own power to legislative though I see no reason why he should stop 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 transferable in the class of cases and not in others because I do not 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 executive officers of government, the legality of which no one would think of questioning. The broad question, however, is ‘Can the legislature confer on the Lieutenant-Governor legislative power?’ Answer: ‘It is a general principle of law in India that any substantial delegation of legislative authority by the legislature of this country is void.’”

The Court then addressed an argument that the illustration cited in the concluding part of the judgment of the learned judges indicated their approval of the proposition that legislative power could be delegated in a manner that allowed modification of a statute enacted by the legislature itself. The Court held that this argument stemmed from a misunderstanding of what the learned judges had actually decided. Referring to the Full Bench decision of the Calcutta High Court in Empress v. Burah and Book Singh (I.L.R. 3 Cal. 63), the Court noted that Markby J. had made further observations in that case, thereby clarifying that the earlier suggestion of approval for delegated legislative authority was not supported by the judgment. Consequently, the Court concluded that the contention of approval was unfounded.

In this case the Court examined the contention that the Indian Legislature had, over a long period, delegated legislative power, and it cited a lengthy list of Acts enacted between 1845 and 1868 together with Act XXII of 1869 as alleged instances of such delegation. The Court observed that the Acts mentioned did not, in its view, provide clear and undisputed examples of a transfer of legislative authority, and it further noted that regarding the provisions of those Acts which allow the executive government to make rules in conformity with the statute, the leading authority is the decision in Biddle v. Tariney Churn Banerjee, which holds that the power to make such rules may be conferred without any delegation of legislative authority. Consequently the Court concluded that the list of Acts failed to demonstrate any consistent practice of transferring legislative power. The Court then turned to the analysis offered by Justice Ainslie concerning section 39 of Act XXIII of 1861 and the meanings of the words “reservations”, “limitations” and “problems”. Justice Ainslie stated that the provisions of section 39 do not affect his view of the matter; the section permits a local government, with prior sanction of the Governor-General in Council, to annex any restriction, limitation or proviso it deems appropriate when extending the Code of Civil Procedure to territories not covered by the general regulations. He characterized this power as merely another form of postponing the full extension of the code, explaining that once the Code operates it remains an execution of the intention of the superior legislation that the Code will eventually become the law of the particular territory. In his reading no authority is given to amend the law itself; the power is limited to keeping part of the law in abeyance or making its operation contingent, which again represents a delay in full operation rather than an amendment. The Court noted that this construction of section 39 was not contradicted by the minority judgment of the High Court nor by the judgment of the Privy Council. Given the clear expression of opinion by Justice Ainslie on the meaning of the language used in section 39, and the lack of disapproval by the Privy Council, the Court held that it could not be argued with force that the Privy Council in Burah’s case had approved the proposition that conditional legislation included the power to amend or modify the Act of the legislature itself. In the Court’s opinion the result of the decision in Burah’s case was that the Indian Legislature possessed the power to legislate conditionally, but the case does not serve as authority for the proposition that the Legislature could delegate the exercise of its judgment on what the law should be to an external agency, nor does it support the view that amendment of the Legislature’s own statute could be the subject of delegated legislation.

In this discussion, the Court observed that no authority exists for the proposition that the legislature could delegate its own judgment regarding the content of the law to an external agency. The Court further held that the present case does not support the view that amendment of a statute enacted by the legislature may be placed within the scope of delegated legislation. The wording that the Indian Legislature could not empower, by way of legislative authority, a new legislative body that had not been created by the Indian Councils Act is understood to mean that the Legislature must itself carry out the function of making laws and may not transfer that power to any other entity. In other words, the Legislature could not create a person or body possessing legislative powers co-extensive with its own, nor could it furnish such a person with the capacity to lay down principles and policies. The possession of plenary powers within the field defined by the Constitution merely allows the Legislature, within that particular field, to enact any law on the subjects specified; it does not permit the Legislature to abandon its duty to legislate by enacting a law that declares it will not operate in that field and that another body will act on its behalf. The Court expressed the view that the judgment of the Privy Council essentially says that although the Legislature enjoys the greatest legislative authority within the prescribed field, it remains bound by the condition that it cannot formally or virtually relinquish the high trust placed in it. 189. Hodge v. The Queen [9 App. Cas. 117] was the next Canadian case decided by the Privy Council in 1883. In that case, the appellant, Hodge, held a liquor licence that had been issued on 25 April 1881 by the Board of Licence Commissioners for the City of Toronto under the Liquor Licence Act of the Province of Ontario, the licence relating to the St. James Hotel. He also possessed a licence under the Municipal Act that authorised him to carry on the business of a keeper of a billiard saloon with one table for hire. On 7 May 1881, the appellant unlawfully permitted a billiard table to be used and a game of billiards to be played in the tavern during a period when the Liquor Licence Act prohibited the sale of liquor. It was contended that the Ontario Assembly lacked competence to legislate with respect to licences for the sale of liquor and that, even assuming competence, the Ontario legislature could not delegate its power to the Licence Commissioners. The local legislature had assigned to three officials the authority to define offences and impose penalties. This argument was countered with the submission that there was no delegation of legislative authority, only a delegation of the power to make by-laws. The Court of the King's Bench Division held that the local legislature possessed no power to delegate in the matter and that such power could be exercised only by the legislature itself. The Court of Appeal reversed that decision, and the reversal was upheld by their

The Privy Council affirmed that sections four and five of the Liquor Licence Act fell within constitutional authority. In delivering its judgment, the Council explained that the objections raised by the appellants rested on a fundamental misunderstanding of the nature and status of provincial legislatures. The Council stated that provincial legislatures are not delegates of, nor do they act under, any mandate from the Imperial Parliament. When the British North America Act created a legislature for Ontario and granted its Assembly exclusive power to enact laws for the province on matters listed in section ninety-two, it bestowed plenary authority that was not to be exercised by delegation from the Imperial Parliament but was a full and ample power within the limits set by section ninety-two, which the Imperial Parliament could confer in the exercise of its own sovereign authority. Within those subject-matter limits, the provincial legislature is supreme and possesses the same type of authority that the Imperial Parliament or the Dominion Parliament would have exercised if it chose to delegate to a municipal body the power to make by-laws or resolutions concerning matters specified in the enactment for the purpose of giving effect to that enactment. The Council observed that such delegated authority is merely ancillary to primary legislation; without it, attempts to manage detailed implementation could become oppressive or fail entirely. The Court of Appeal’s extensive judgment, the Council noted, cited numerous precedents that entrusted limited discretionary powers to others and illustrated the necessity and convenience of such delegation. Counsel argued that when a legislature entrusts important regulatory functions to agents or delegates, it effaces itself. The Council rejected this argument, explaining that the legislature retains its full powers and may at any time dissolve the agency it created, replace it with another, or assume the function directly. Decisions about how far to rely on subordinate agencies and for how long are matters for each legislature, not for the courts. The Council therefore concluded that: (1) the power to make by-laws or regulations on matters specified in an enactment for the purpose of implementing that enactment may be transferred to municipal institutions or local bodies; (2) such delegated authority is ancillary to legislation; and (3) delegating regulatory powers to agents or delegates does not erase the legislature itself. The decision expressly refused to endorse the view that a legislature may delegate the power to amend or modify its own statutes, affirming that the power to amend legislation cannot be delegated.

The Court observed that the power to make regulations could not be described as merely ancillary to legislation, nor could it fall within the doctrine of subsidiary legislation. It noted that the Lords of the Privy Council had never endorsed the broad proposition that a legislature might employ an agent possessing co-extensive powers to perform functions that the legislature itself could perform. Their judgments were careful to delimit the extent and measure of permissible delegation. The Privy Council sanctioned only two kinds of delegation: first, delegation of authority that is ancillary to the principal legislation; and second, delegation to municipal institutions for the purpose of framing regulations and by-laws. No authority was ever held by the Privy Council to allow the power to declare what the law shall be to be delegated, nor was it ever held that such delegation could be within the constitutional competence of the Parliament of Canada or of the Indian Legislature.

The Court rejected the argument that, by implication, the Privy Council had held that, short of completely effacing itself, a legislature could delegate its law-making powers. It stated that there was no justification for construing the language used by the Privy Council in that way, especially when the Privy Council was responding to an argument raised by counsel before them. Consequently, the Court concluded that the construction suggested by the learned counsel was unsupported by the pronouncements of the Privy Council.

In the Canadian case of In re The Initiative and Referendum Act, reported in [1919] A.C. 935, the Privy Council examined the Initiative and Referendum Act of Manitoba. That provincial legislation attempted to provide that the law of the province would be made and repealed by a direct vote of the electors rather than solely by the Legislative Assembly. The Privy Council held that sections 92 of the Constitution conferred upon a provincial legislature the power to amend the constitution of the province, except with respect to the office of the Lieutenant-Governor. The Manitoba Act, however, wholly excluded the Lieutenant-Governor from the new legislative authority created by the Act, and the Privy Council declared that exclusion to be ultra vires the provincial legislature, rendering the Act void. Lord Haldane, delivering the opinion of the Privy Council, after concluding that the Act was ultra vires, made further observations. He explained that, although the Court would not decide more than necessary, it was appropriate to address a difficulty raised by those arguing for the Act’s validity. He observed that section 92 of the 1867 Act vests legislative power in a province solely in its legislature. While a body possessing such extensive legislative power could, without diminishing its own capacity, seek assistance from subordinate agencies—as had been allowed in Hodge v. The Queen, where the Legislative Assembly of Ontario entrusted a Board of Commissioners with authority to enact tavern regulations—this does not permit the legislature to create a new legislative power not provided by the Act that constitutes its very existence.

In the passage under consideration, the judges emphasized that the reasoning of Lord Haldane did not imply that a provincial legislature could create a fresh legislative authority that was not provided for by the statute establishing the legislature itself. They noted that the observations merely highlighted the seriousness of the constitutional issues that were raised. The commentary reiterated the principle established in Hodge v. The Queen, which held that the power to amend or modify Acts of the legislature could not be conferred by delegating legislative power. Moreover, the judges stressed in unequivocal language that section 92 of the Constitution vested legislative power solely in the provincial legislature and in no other body. This underlying principle was later described in Street’s treatise on the doctrine of ultra vires, where it was stated that the decision that the statute was ultra vires was not based strictly on the ground of delegation, but the remarks suggested that a legislature would ordinarily not be allowed to shift the burden of legislation, although it may prescribe broad principles and leave detailed implementation to subordinate agencies. The judges also referred to the case of King v. Nat Bell Liquors Ltd., in which the Alberta Liquor Act was held to be within provincial power under the British North America Act, 1867, and was not ultra vires because it was enacted by the provincial legislature itself in accordance with the normal legislative procedure, including a popular vote under the Direct Legislation Act. Consequently, that decision could not be relied upon to support the argument advanced by the Attorney-General. The next Canadian case mentioned was Croft v. Dunphy, where anti-smuggling provisions extending beyond territorial limits, which had long formed part of imperial customs legislation, were upheld as valid and within constitutional authority, offering no new doctrinal development beyond earlier cases such as Queen v. Burah and Hodge v. The Queen. Finally, the judges discussed Shannon v. Lower Mainland Dairy Products Board, which examined whether a provincial scheme regulating natural products and imposing licence fees was intra vires. The contention that the legislature could not delegate legislative power to the Lieutenant-Governor in Council was described as contrary to the rights of the provincial legislature, and the court observed that it was unnecessary to list the many instances where legislatures have entrusted similar powers to various persons and bodies; on the basis of established practice, such delegation was upheld.

The Court noted that legislatures have on innumerable occasions entrusted powers similar to those under consideration to various persons and bodies, and that, based on long-standing practice, such delegations have been upheld. It was further observed that this past practice generally involved conferring necessary and ancillary powers required to carry out the policy of a statute. The Court then referred to Powell v. Apollo Candle Co. (10 App. Cas. 282, 1885), where the validity of section 133 of the Customs Regulating Act of 1879 was examined. That section authorized the levy of certain duties by way of an Order in Council and was held to be within the constitutional powers. An argument was raised that the colonial legislature’s authority to impose duties should be exercised exclusively by the legislature itself and not be delegated wholly or partly to the Governor or any other person. The Court rejected this objection, explaining that “the duties levied under the Order in Council are really levied by authority of the Act under which the order was issued. The legislature has not parted with its perfect control of the Governor and has the power of withdrawing or altering the power entrusted.” Accordingly, the Court concluded that when a delegate acts under the authority of the enabling Act, no question of unlawful delegation of legislative power arises. The Court further observed that the authorities cited—Fort Frances Pulp & Power Co. v. Manitoba Free Press ([1923] A.C. 695), Co-operative Committee on Japanese Canadians v. Attorney-General for Canada (1 D.L.R. 577, 1947), and Co-operative Committee v. Attorney-General of Canada ([1947] A.C. 87)—were not helpful for forming an opinion on the matter presently before it. The Court then turned to four recent Canadian decisions that advanced the view that, short of eliminating its own existence, Parliament or a legislature possesses the broadest possible power of delegation and may do so within constitutional limits. The first of these cases, In re George Edwin Grey (57 S.C.R. (Canada) 150), concerned section 6 of the War Measures Act, 1914, which granted very wide powers to the Governor-General in Council for the efficient prosecution of the war. In a four-to-two majority judgment, the Court observed that “the practice of authorizing administrative bodies to make regulations to carry out the objectives of an act instead of setting out all details in the Act itself is well-known and its legality is unquestioned, but 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 amended or repealed; that under the constitution, Parliament alone is to make laws, the Governor-General to execute them and the court to interpret them, then it follows that none of the fundamental branches of government can constitutionally either delegate or accept the function of any other.”

In this part of the judgment the Court considered the statement of law taken from Rex v. Halliday [[1917] A.C. 260] and expressed doubt that the broad proposition advanced in that case could be sustained. The Court observed that Parliament cannot entirely abandon its legislative functions, although within reasonable limits it may delegate authority to execute governmental orders. Such delegated powers must remain subject to parliamentary determination, and the actions of the executive exercised under that delegation must conform to the scope of the legislative enactment that authorized them.

The Court noted that Lord Dunedin, in the same case, had declared that the British Constitution confers upon the two Houses of Parliament, subject to the King’s assent, an absolute power that is not limited by any other circumstance and that may be enforced by the courts. The Court affirmed that this description does not apply to the constitutional arrangement of this country, and further observed that the statute under consideration imposes no limitation on Parliament’s authority.

The Court accepted the introductory portion of the quotation without objection, but took issue with the subsequent reasoning of the learned Judges. Specifically, the Judges had suggested that, in the absence of constitutional limitations, Parliament could delegate to an external authority the power to amend or repeal statutes that Parliament itself had enacted, provided such delegation did not amount to abdication of parliamentary functions. The Court found that view unsound.

First, the Court explained that the observations appeared inconsistent with the fundamental principle that a duty assigned to a particular body, to be performed according to a prescribed procedure, cannot be transferred to an external agency that is not bound by any procedural rules and that was never intended to perform that duty. The Court further clarified that abdication by a legislative body need not involve a total disappearance of that body; abdication may be either partial or complete.

The Court stated that abdication certainly occurs when a legislature, with respect to a subject listed in the legislative list, declares that it will not legislate on that subject and instead leaves the matter to another entity. Such a delegation of law-making power is not authorized. The Court rejected the assumption that the term “abdication” applies only when there is a complete erasure or legal extinction of the legislative body.

In the Court’s opinion, abdication of legislative power happens whenever a legislature refuses to fulfill its duty to legislate on a particular matter and entrusts that function to another party. Referring to the Oxford Dictionary definition, abdication means the abandonment—whether formal or virtual—of sovereignty or another high trust. It constitutes a virtual abandonment when the person entrusted with the trust delegates, wholly or partly, the functions to another person.

Consequently, the Court concluded that the perspective expressed in the quoted passage could not be upheld, as it conflicts with the fundamental principles governing the delegation of legislative authority.

The Court noted that the reasoning advanced by the Privy Council in the earlier portion of the judgment was not compelling. Duff J. expressed his view in the following terms: “The true view of the effect of this type of legislation is that the subordinate body in which a law-making authority is vested by it is intended to act as the agent or the organ of the legislature and that the acts of the agent take effect by virtue of the antecedent declaration that they shall have the force of law.” 201 The Court, however, respectfully disagreed with those observations, stating that no established juristic principle could support them. It was held that the process of law-making could not rely on a pre-emptive sanction for a law that had not yet been created or even contemplated. Moreover, the Court emphasized that only the constitution could establish an organ of the legislature for the purpose of making laws; a legislature could not create such an organ when its own legislative authority was itself derived from the constitution. The learned dissenting judge in the case had warned that a wholesale surrender of the people’s will to an autocratic power would be incompatible with constitutional doctrine and with the historical experience of the nation’s ancestors. Those remarks referred specifically to the power of amendment or repeal that had been conferred on the delegate. The Court further pointed out that, as previously noted in the judgment, the British Parliament had never exercised such a power, and the Donoughmore Committee had recommended that its use be abandoned wherever possible. 202 In light of these considerations, the Court concluded that the decision under review could not be treated as an authoritative precedent for reaching the correct conclusion on the question presented in the reference.

Subsequently, the Court turned its attention to the case cited as Ref. re Regulations (Chemicals) [1943] S.C.R. (Canada) 1. That case concerned regulations relating to chemicals that had been issued under powers granted by the Department of Munitions and Supply Act and the War Measures Act. The principal issue was whether those regulations exceeded the limits of the constitution, that is, whether they were ultra vires. The Court observed that, except for one specific provision, the regulations were held to be intra vires, with the judgment noting that the War Measures Act did not attempt to convert the executive branch into a legislature in the same manner as the Parliament of Canada or provincial legislatures function as legislatures. Accordingly, the regulations derived their legal force solely from the War Measures Act. The judgment relied upon the authorities Queen v. Burah [5 I.A. 178] and Hodge v. The Queen [9 App. Cas. 117]. One of the learned judges remarked that the maxim “delegatus non potest delegare” was a principle of agency law and did not apply to legislative acts, adding that the power of delegation was essential to the purpose of the War Measures Act and therefore formed part of the powers conferred by Parliament in that Act. Another learned judge observed that the

In the discussion of the maxim delegatus non potest delegare, one learned judge observed that the principle was not limited solely to the law of agency but that it had no application to legislation. A third learned judge, however, held that the same maxim also applied to grants of legislative power, yet he emphasized that Parliament had not removed its own authority and, in the ultimate analysis, retained full power to amend or repeal the War Measures Act. The author expressed the view that, for the reasons already set out, the observations in this case extended beyond the rule articulated by the Privy Council in Queen v. Burah [5 I.A. 178] and Hodge v. The Queen [9 App. Cas. 117], and therefore did not provide a reliable guide to resolving the issue.

The attention of the Court was also drawn to Attorney-General of Nova Scotia v. Attorney-General of Canada [(1950) 4 D.L.R. 369]. That decision did not give full support to the view expressed in the earlier cases. It held that neither the Parliament of Canada nor any provincial legislature could delegate to the other any of the legislative authority conferred upon them by the British North America Act, particularly by sections 91 and 92. The legislative power granted to Parliament and to a provincial legislature was exclusive, so that neither body could bestow or receive legislative power from the other, although each could delegate to subordinate agencies. Regarding delegation of legislative power, the learned Chief Justice remarked that delegations such as those dealt with in In re George Edwin Gray [57 S.C.R. 150] and Ref. re Regulations (Chemicals) [(1943) 1 D.L.R. 248] under the War Measures Act were delegations to a body subordinate to Parliament and were of a different character from the delegation contemplated by the bill now before the courts. In that case, on the general question of delegation, the Supreme Court did not go beyond the rule set out in In re The Initiative and Referendum Act [[1919] A.C. 935] or the principle stated in Hodge v. The Queen [9 App. Cas. 117].

Finally, reference was made to Oimuit v. Bazi [46 S.C.R.L. (Canada) 502]. The learned Attorney-General relied on certain obiter dicta of Justice Davies, suggesting that the Parliament of Canada could delegate its legislative power and that such delegation was within its authority. The Chief Justice offered no opinion on that point, while Justice Idington declined to adopt the view, and the remaining judges did not consider the issue at all. The author concluded that these remarks, whose soundness was doubted by other judges, were of little assistance in the present case. Having examined the Canadian authorities on the subject, the author deemed it appropriate to cite a passage from Street on the Doctrine of Ultra Vires, which accurately expresses the position of colonial legislatures and elucidates the meaning of the language used by the Privy Council in describing the relationship between colonial legislatures and the Imperial Parliament.

In the cases the Court observed that legislatures were not agents of the Imperial Parliament, it also explained that colonial legislatures, while not merely instruments of the Imperial Government, were nevertheless not unlimited principals. The Court stated that within the limits of their constitutions these legislatures were restricted at least as to the subjects they could legislate on and the geographical area of their jurisdiction, and, to the extent suggested, also as to their power to delegate authority. The Court further noted that when an ultra vires colonial statute was ratified by the Imperial Parliament, such ratification implied an agency relationship. It gave the example that when the Dominion of Canada established the Province of Manitoba under the authority of [34 Vict. c. 28], an Imperial statute was required because the action lay outside the colony’s constitutional scope. The Court pointed out that a legislature could not, as an ordinary principal, ratify acts purportedly done under its own authority, citing Commonwealth v. Colonial Ammunition Co. 34 C.L.R. 198, 221. Taking a broader view, the Court described non-sovereign legislatures as delegates of the Imperial Parliament so long as they did not repudiate their constitutions, a view that had been endorsed by the Privy Council in [[1906] A.C. 542; [1914] A.C. 237, 254]. However, the Court warned that applying the agency formula too rigidly would be imprudent, and that the law of agency must be adapted to the factual reality that the major colonies enjoyed real independence.

The Court then turned to the decisions of American courts on the constitutionality of delegating legislative power, noting that, as in other jurisdictions, the American rulings were not uniform. Judicial opinion sometimes took a strict stance against the validity of such delegation, while at other times it upheld delegation as constitutional on grounds that were not necessarily derived from logical juristic principles but were often based on convenience, the doctrine of “determining conditions,” or historical considerations. The Court affirmed that the United States Supreme Court had never abandoned the doctrine that legislative power could not be delegated to other branches of government, to independent bodies, or back to the people. The rule against delegation was said to rest not only on the constitutional doctrine of separation of powers among the legislative, executive, and judicial departments, but also on Coke’s maxim “delegatus non potest delegare,” which, although originally an agency rule, embodied a sound principle for persons entrusted with public duties and high trusts. The Court added that the prohibition on delegating back to the people was linked to the concept of representative democracy. Finally, the Court mentioned that many decisions of the Supreme Court had been cited during the arguments, together with quotations from several constitutional law texts, but expressed the view that it was not necessary to refer to all of them, although a few important ones might be mentioned.

In this passage the Court referred to several American decisions that illustrated the principle that legislative authority could not be transferred to another branch or body. The Court first mentioned the case of Waman v. Southard, reported in the sixth law edition at page 262, which was decided by Chief Justice Marshall in the year 1925. That case examined whether certain rules made by the courts were valid, and the Chief Justice stated that it could not be argued that Congress was permitted to give courts or any other tribunal powers that were strictly legislative in nature. The Court then cited Killbourn v. Thompson, reported at volume 103 of the United States Reports at page 168, where it was held that the legislative department could not exercise judicial power. Next, the Court turned to Field v. Clark, reported at volume 143 of the United States Reports at page 649, describing it as a leading American authority on the subject. In that case Congress had delegated to the executive the authority to impose certain duties, and the delegation was upheld because the legislature had already determined the policy of the law; the details could therefore be left to the President, who acted not as a legislator but as an agent executing the legislative policy. It was emphasized that a universally recognised principle of government required Congress not to delegate its legislative power to the President. The Court further referred to Springfield v. Philippine Islands, reported at volume 277 of the United States Reports at page 186, noting that the same view was expressed there. On similar lines, the decision in United States v. Gravenport & Co., reported at volume 287 of the United States Reports at page 77, was discussed. That decision observed that after a primary standard had been fixed, legislation could devolve to a subordinate authority the power to fill in details, and the provision in question was held not to be a delegation of legislative power but merely an authorization to make administrative rules. The Court also mentioned O’Donohue v. United States, reported at volume 289 of the United States Reports at page 516, which dealt with the question of compensation payable to Supreme Court judges and held that such compensation could not be diminished by law. In that context, the Court remarked that the purpose of creating three separate branches of government was not simply a matter of convenience but a fundamental safeguard to prevent the mixing of duties, so that actions of one branch could not be said to be performed under the coercive influence of another branch. Finally, the Court quoted from the well-known judgment of Chief Justice Taft in Hampton & Co. v. United States, reported at volume 276 of the United States Reports at page 394. The quoted passage declared that it was a breach of the nation’s fundamental law for Congress to surrender its legislative power and transfer it to the President or to the judicial branch, or to attempt by statute to give itself or its members either executive or judicial power. The passage also clarified that this restriction did not mean that the three branches were not co-ordinate parts of a single government, nor that each could not seek assistance from the others, provided that such assistance did not amount to an assumption of constitutional powers reserved to another branch.

In this passage the Court observed that when a branch of government seeks assistance from another branch, the scope and nature of that assistance must be determined by common sense and by the practical necessities of governmental coordination. The Court explained that the legislative field of Congress encompasses a wide variety of legislative actions, and that Congress has often found it necessary to employ officers of the executive branch, within well-defined limits, to achieve the precise effect intended by its statutes. To that end Congress may delegate to such officers the authority to issue public regulations that interpret a statute and prescribe the details of its execution, and it may even empower those officers to prescribe penalties for violations of those regulations. The Court further noted that Congress may at times be unable to specify exactly when the operation of a particular legislative enactment should become effective because the appropriate timing depends on future conditions. In such situations Congress may entrust the determination of the effective date to the executive, or, as is frequently done in matters of State legislation, may allow the residents of the affected district to decide the timing through a popular vote.

Reference 212 cites Panama Refining Co. v. United States [293 U.S. 388] as another leading decision of the United States Supreme Court on the same subject. The Court then turned to the Indian case of Benoari Lal Sarma, reported in [[1943] F.C.R. 96], noting that Varadachariar J. relied heavily on the Panama Refining decision in reaching his conclusion that non-delegation of power is prohibited in India. The Court reproduced several observations of Hughes C.J. from that American decision, stating: “The Congress is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.”

The Court also quoted Cardozo J., who warned that “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 roving commission.” Further citations included Opp Cotton Mills v. Administrator [312 U.S. 126], which held that essential legislative power could not be delegated although fact-finding agencies could be created, as well as Yakus v. United States [321 U.S. 414] affirming the same principle. In Lichter v. United States [334 U.S. 742] the Court observed that a constitutional power implies a power of delegation sufficient to accomplish its purpose, especially where war powers are involved and discretion in the methods of execution is essential for effective use of those powers. The passage concluded by noting that the degree to which Congress must specify its policies and standards remains a point of ongoing judicial scrutiny.

The Court observed that guaranteeing that the administrative authority conferred does not amount to an unconstitutional delegation of legislative power requires a level of precise specification that the law does not permit. It went on to explain that the decisions cited above demonstrated a general tendency in American judicial opinion to oppose the delegation of essential legislative powers by Congress to administrative agencies or to independent commissions. The Court considered it unnecessary to repeat all of the passages extracted from various textbooks, because those passages, apart from the authors’ commentary, merely reflected the aggregate outcome of the numerous judicial rulings on the matter. In the Court’s view, the essential conclusion had already been summarized very accurately by Crawford in his work on the construction of statutes, on pages twenty-five and twenty-six. Crawford wrote that, as a matter of general practice, legislative power had not been transferred with the purpose of dismantling the three-branch theory of separation of powers, but rather out of necessity and for the sake of convenience. He noted that, as the social system grew increasingly complex, the legislature found it necessary in order to legislate effectively, efficiently and promptly to delegate certain functions that were not purely legislative in nature to other bodies, especially to administrative officials and boards. The most prominent powers that had been delegated, according to Crawford, were the power to ascertain facts and the power to issue rules and regulations; he added that most other delegated powers, when examined, fell within one of those two basic categories. Crawford further stressed that, whenever a power was delegated to an executive official or an administrative board, the legislature was required to articulate the policy underlying the law, to fix the legal principles that would govern particular cases, and to provide a standard that would guide the official or board charged with executing the law. Such a standard, he explained, could not be overly indefinite or vague; it might be expressed in broad terms, but it had to be an intelligible principle that gave direction to the executive or administrative officer. From these criteria, Crawford concluded that courts have shown considerable willingness to uphold legislative delegations, provided that a suitable standard exists. He argued that such delegations are not vulnerable to the objection that legislative power has been unlawfully transferred. The filling in of mere details within the framework established by the legislature, even when the delegated authority enjoys substantial discretion, is essentially ministerial rather than legislative in nature. Moreover, the method and manner of enforcing a law, he said, should be left to the reasonable discretion of administrative officers, guided by the legislative standards. The Court then turned to a point on which there was clear uniformity among American courts and among textbook authors alike. It noted that the delegation of a general power to make and repeal laws had been consistently held to be unconstitutional, citing the observations of Dixon J. in the case of Victoria etc. Co. and Meakes v. (as referenced in the record).

In the case cited as Dignan [46 C.L.R. 73] the Court observed that there was not a single American Supreme Court decision in which Congress had authorized the executive to issue regulations or ordinances that would extend beyond the scope of existing statutes. The Court then turned to the decision in Moses v. Guaranteed Mortgage Co. of New York [239 App. Div. 703], where a provision of the Emergency Banking Law of 1933 was declared an unconstitutional delegation of power. In that case a banking board had been given authority to adapt, rescind, alter or amend rules and regulations that were inconsistent with, or contravened, any existing law. The Court also referred to Walter Gellhorn’s second edition of Administrative Law, page 110, where Gellhorn explained that delegations of power to alter or modify statutes effectively constitute delegations of the powers to dispense, suspend, or make rules, or some combination of those functions, and that the mere use of the words “alter” or “modify” in a statute has produced unexpected consequences among courts and commentators.

The Court further noted that several decisions discussed in the present book held that delegating authority to alter or modify a statute amounts to an unconstitutional delegation of power. It quoted Professor Salmond, who in the tenth edition of Jurisprudence (page 159) asserted that a legislative act passed by the supreme legislature may be amended only by that same supreme legislature. The Court examined definitions of the word “modify” found in Rowland Burrow’s Words and Phrases, which describes “modify” as meaning to vary, extend, enlarge, limit, or restrict. The Oxford Dictionary was also cited, providing one meaning of “modify” as “the making of partial changes or altering without radical transformation,” and defining “modification” as “the result of such alteration, a modified form or variety.” In Stevens v. General Steam Navigation Co. Ltd. [[1903] 1 K.B. 890] the Court observed that a modification implies an alteration that may either narrow or enlarge the provisions of an earlier act. The Court expressed the opinion that the American view—that delegating authority to modify a congressional act is unconstitutional—is fully supported by the ordinary meaning of “modify,” even though Walter Gellhorn does not share this view. Finally, the Court quoted a passage from Bakar’s Fundamental Law, which explains that the division of the American government into three co-ordinate branches prevents any branch from delegating its authority to the others, and emphasizes that legislative power, vested in elected representatives who enact laws and levy taxes, cannot be transferred because such delegation would undermine representative government and lead to despotism.

In this passage the Court explained that a representative legislative assembly must use its own judgment when enacting laws that affect the general public welfare. The Court stated that when the Assembly consents to a tax it must do so by expressly and positively fixing the amount of the tax, either by setting a definite rate or by fixing a total amount to be levied on taxpayers. Similarly, when the Assembly passes a law it must express itself so fully that, once the law leaves the legislative department, it is a complete and self-contained statute. The Court therefore described a well-known principle of constitutional law: a legislative body cannot delegate its legislative power to another authority. The Court warned that if a representative legislature were permitted to delegate its power, it could simply transfer that power to the executive branch, an outcome that would undermine representative government and revert to despotism. The Court emphasized that both the nature of legislative power and the very existence of representative government rest on the doctrine that legislative power is inalienable. The Court then turned to the Australian Constitution, noting that it follows the American model. Under that Constitution the legislative power of the Commonwealth is vested in a Federal Parliament, the executive power in the Queen, and the judicial power exclusively in the courts. The scope of the legislative power is set out in sections 51 and 52 of the Constitution Act, while any powers not enumerated there remain with the States. The Court cited the Australian case Baxter v. Ah Way, decided in 1909, which concerned section 52(g) of the Customs Act 1901. In that case the Court held that the provision, which made goods prohibited by proclamation automatically prohibited imports, did not constitute a delegation of legislative power. Instead it was characterized as conditional legislation that fell within the Parliament’s authority under section 51 of the Constitution. The Court explained that the prohibition of importation was a legislative act of Parliament itself; the effect of subsection (g) was merely to give the Governor-General in Council the discretion to decide which classes of goods would be subject to the prohibition. While delivering the judgment, the learned Chief Justice observed that the argument against legislative delegation is rooted in earlier case law, yet acknowledged that every legislature in some sense delegates certain functions when it authorises another body to perform acts it could have done itself. He further noted that such delegation, if it may be called that, is not objectionable on the basis of the maxim that a delegate cannot delegate, nor on any other ground. Because there is no objection to conditional legislation being enacted, the Court concluded that the provision in question was valid as conditional legislation.

In the discussion, Justice O’Connor observed that section 51 of the Constitution grants the Commonwealth power over trade and commerce with other countries, including the authority to tax, and also provides the capacity to enact laws that are incidental to any power vested in Parliament. He explained that a fundamental principle of the Constitution is that everything necessary for the effective exercise of a granted power is deemed to be included in that grant. Consequently, all measures required to make legislation effective are considered to be conferred by the Constitution along with the original power. Justice O’Connor further stated that exercising such discretion does not amount to the making of law.

Justice Higgins added his view, stating that in his opinion there is in fact no delegation of law-making power in the matter under consideration.

The case rests on the doctrine that legislative authority cannot be delegated, and for that reason the statute that was challenged was defended on the basis that it constituted conditional legislation. The Court noted that if delegation of legislative power were permissible, it would have been unnecessary to justify the enactment as a form of conditional legislation.

The Court then referred to the 1921 case of Roche v. Kronheimer, reported in the Commonwealth Law Reports at page 329, where Mr Dixon, then counsel, argued the validity of the Treaty of Peace Act 1919. That Act, in its section 2, authorised the making of regulations that delegated powers to certain individuals. The legislation was held to be constitutional. In his argument, Mr Dixon attacked the Act on the grounds that it was not conditional legislation as in Baxter v. Ah Way, but rather gave the executive full legislative power over a particular subject, which he claimed was prohibited because vesting legislative power in any body other than Parliament was forbidden. He further asserted that enacting a law allowing another body to legislate on a specific subject did not constitute making a law on that subject.

The judgment quoted the decision, noting that the claim that Parliament could legislate but could not confer that authority on the Governor-General had been considered. The Court referenced earlier authorities such as Hodge v. The Queen, Rex v. Halliday, and In re The Initiative and Referendum Act, and mentioned extensive argument concerning the meaning and effect of Hodge v. The Queen. The judgment then observed that the validity of legislation of this sort had been upheld in earlier cases, including Farey v. Burvett, Pankhurst v. Kiermany, Ferrando v. Pearcey, and Sickerdick v. Ashton, and that it would not revisit the correctness of those decisions.

The Court concluded that the matter had been decided on the basis of the case’s procedural posture, and the point raised by Mr Dixon remained unanswered. Finally, the Court noted that in 1931 two cases were brought before the Supreme Court, one of which was decided in February 1931 and the other in November 1931.

In the year 1931 two cases were decided by the Supreme Court, one in February and the other in November. The earlier case was Huddart Parker Ltd. v. The Commonwealth, reported in 44 C.L.R. 492, in which Justice Dixon sat among the presiding judges. The core issue in that appeal concerned the constitutional validity of section 33 of the Transport Workers Act, a provision that authorised the Governor-General to make regulations relating to transport workers. The bench observed that the earlier authority in Roche v. Kronheimer, 29 C.L.R. 329, had held that a statute which conferred on the executive the power to legislate on a particular subject rendered that subject a matter of law. Relying on that construction, the Court applied the ruling in Roche v. Kronheimer to resolve the question. However, the author of the judgment noted that a careful reading of Roche v. Kronheimer revealed that the decision actually contributed no substantive ruling and rested merely on the doctrine of stare decisis.

The later case, decided in November 1931, was Victorian etc. Co. & Meakes v. Dignan, reported in 46 C.L.R. 73. The appeal examined whether section 3 of the Transport Workers Act fell within the constitutional powers because it delegated to the Governor-General the authority to make regulations, notwithstanding any other statutory provisions. The statutory delegation was described as conferring “regulative power.” The appellants were charged with offending the Waterside Employment rights by being engaged as waterside workers at Melbourne without belonging to the Waterside Workers’ Federation, while members of the Federation were available for the same work. The challenge to the Act invoked an American constitutional principle that a legislature may not delegate to another department or authority the power, either in general or in particular, to enact laws. The argument asserted that such delegation exceeded the legislature’s own prerogative, which was entrusted to its wisdom, judgment and patriotism and therefore could not be transferred; any such transfer would be ultra-vires. It was further contended that the principle did not forbid the delegation of local governmental powers to local authorities. The defense argued that the Act did not contravene the doctrine because Parliament confined the regulatory power to specific matters within the scope of the trade and commerce power, thereby exercising its own legislative authority rather than delegating a portion of it. Reference was made to the judgment of Justice Higgins in Baxter v. Ah Way, 8 C.L.R. 646, where it was observed that the Federal Parliament possessed full authority to frame its own laws in any manner, employing any agent, agency or mechanism it deemed appropriate for the peace, order and good government of the Commonwealth. Additionally, Justice Rich held that the authority to make subordinate law could be vested in the executive.

In this case the Court referred to Roche v Kronheimer [29 C.L.R. 329]. The Attorney-General placed considerable reliance on the judgment of Dixon J. The learned Judge expressed his opinion on the American decisions, stating: “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 administration with authority to legislate upon the same subject? The answer which the decisions of the Supreme Court supply to this question is formulated in the opinion of that Court delivered by Taft C.J. in Hampton and Co. v. United States [276 U.S. 394, 406]… The courts in America had never had any criterion as to the validity of statutes except that of reasonableness, the common refuge of thought and expression in the face of undeveloped or unascertainable standards.” The learned Judge then concluded that judicial power could not be given or delegated, but he clarified that this conclusion did not mean that Parliament was restrained from transferring a power essentially legislative to another organ or body. In an earlier decision the Judge had expressed the view that the constitutional distribution of powers among the separate organs of government confined the legislative power to Parliament, thereby preventing Parliament from placing in the executive an authority essentially legislative in character. He reiterated that he was not prepared to change that opinion or to accept the proposition that Roche v Kronheimer decided that a statute conferring on the executive a power to legislate on matters within one of the subjects of the parliamentary legislative power is a law with respect to that subject and that the distribution of powers does not restrain Parliament from making the law. The learned Judge further observed: “This does not mean that a law confiding authority to the executive will be valid, 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 validity… It may be acknowledged that the manner in which the constitution accomplished the separation of power does logically or theoretically make Parliament the exclusive repository of the legislative power of the 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 is lacking in the independent and unqualified authority which is an attribute to true legislative power.” The Judge indicated that, in his ultimate analysis, his reasoning rested on the history and the usages of British legislation and English law rather than on a strict construction of the Australian Constitution, and he acknowledged that, logically or theoretically, the power of delegation he upheld could not be justified within the constitutional framework.

The Court observed that the earlier judgment relied on the usages of British legislation and the theories of English law rather than on a strict construction of the Australian Constitution. The learned Judge had openly admitted that, when examined logically or theoretically, the power of delegation that was held to be valid in that case could not be justified within the constitutional framework. The Court also expressed difficulty in following the distinction drawn by the learned Judge, namely that the delegation he endorsed did not encompass the fullest possible delegation of any matter that fell within the limits of federal power. After a careful review of the learned and eminent Judge’s observations, the Court concluded that those observations did not provide a reliable guide for deciding the present reference. It further noted that the earlier decision not only went beyond the constitutional limitations imposed by the written Constitution, but also rested on the theories of British legislation and English law, which are difficult to apply to a written constitution that incorporates a clear separation of powers.

In contrast, Mr Justice Evatt articulated a different rule, stating that “every grant by the Parliament of authority to make regulations is itself a grant of legislative power and the true nature and quality of legislative power of the Commonwealth Parliament involves as part of its contents power to confer law-making powers upon authorities other than the Parliament itself.” The Court considered that the theory proposing that legislative power inherently includes a content of delegation is not grounded in any established principles of jurisprudence or legislation. Moreover, the Court found this theory inconsistent with the fundamental principle that when a high level of trust is placed in a particular body, that body must exercise the trust according to the prescribed procedure and not delegate it to another. The Court also highlighted that this decision conflicted with earlier Privy Council rulings. If the mere existence of legislative power automatically permitted delegation, the Privy Council would not have needed to justify delegation in the cases it examined on the basis of conditional legislation, nor would it have expressly stated that those cases were not examples of delegation of legislative authority. This position was at odds with the Privy Council’s observations in the case of Benoari Lal Sarma, reported in 1945 F.C.R. 161 under the Government of India Act 1935, where the Court said: “It is true that the Governor-General acting under section 72 of Schedule IX himself must discharge the duty of legislation there cast on him and cannot transfer it to any other authority.” After setting out his rule, Justice Evatt further remarked that the extent of the power granted is often a material circumstance in assessing the validity of legislation that confers a grant, and that the nature of the Commonwealth’s legislative power must be examined in that light.

The judgment noted that the legislative authority of the Commonwealth Parliament is plenary, meaning it is complete and unrestricted, but it is essential that every statute enacted by Parliament be predicated upon at least one of the specific subject-matters enumerated in sections 51 and 52 of the Constitution. After reviewing a series of circumstances that the learned Judge described as material in determining the constitutionality of the impugned statute, the Judge articulated his view as follows: “As a final analysis the Parliament of the Commonwealth 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 through 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 description of a law upon one or more of the subject-matters stated in the Constitution. A law by which Parliament gave all its law-making authority to another body will be bad because it will fail to pass the test last mentioned.” The Court then expressed difficulty in discerning the principles or constructions that might justify the relevance of the matters identified by the learned Judge as material circumstances for assessing the vires of the Act. In other words, the Court was unable to grasp how those considerations could be reconciled with established principles of legislative validity.

Subsequent discussion turned to comparative authority. The Court referred to an Australian case cited in Wishart v. Frazer [64 C.L.R. 470], where the challenge concerned section 5 of the National Security Act, 1939-40, which authorised the making of regulations for public safety and defence of the Commonwealth. That case proceeded on a line similar to the earlier Australian decision already examined. The Court further observed that, in its opinion, the decision in Baxter v. Ah Way [8 C.L.R. 626] correctly interpreted the provisions of the Australian Constitution, and that later Australian decisions should not be treated as binding guidance for this jurisdiction on the point raised. The principle articulated by Mr. Dixon, then appearing in Roche v. Kronheimer [29 C.L.R. 329], was also considered accurate. Turning to Indian precedent, the Court noted the scarcity of Privy Council decisions on the matter. The earliest such authority, Queen v. Burah [5 I.A. 178], had been discussed extensively earlier and was declared not to support the proposition that the Indian Legislature under the Indian Councils Act, 1861, possessed the power to delegate to the executive the authority to modify or amend provisions of an Act passed by the legislature itself. The most recent Indian Privy Council decision on the issue was King Emperor v. Benoari Lal Sarma [[1945] F.C.R. 161]. In that case, the conviction of fifteen persons by a special magistrate acting under Ordinance II of 1942—promulgated by the Governor-General on 2 January 1942—was set aside, establishing a precedent on the ultra-vires nature of the Ordinance.

In that case a special bench of the High Court at Calcutta had set aside the convictions of fifteen persons, and the decision of that court was subsequently affirmed by the majority of the Federal Court of India on the ground that the ordinance relied upon was ultra vires. When the matter was appealed before the Privy Council, the respondents argued that the ordinance was in fact valid. The ordinance itself did not create any of the special courts; instead it provided in sub-section (3) of section 1 that the ordinance would become operative in a province only if the Provincial Government, being satisfied that an emergency existed because of disorder within the province, a hostile attack on India, an attack on a country neighboring India, or the imminent threat of such an attack, issued a notification in the official gazette declaring the ordinance to be in force, and that it would cease to be in force when such a notification was rescinded. On the basis of this provision the petitioners contended that the ordinance was invalid for two reasons. First, they claimed that the wording indicated that the Governor-General, despite the preamble, was not asserting that an emergency presently existed but was merely making provisions for a possible future emergency. Second, they argued that the provision amounted to “delegated legislation” because the Governor-General, lacking legal authority, was purportedly transferring the decision as to whether an emergency existed to the Provincial Government rather than deciding it himself. In addressing the second contention the Privy Council observed that while the Governor-General, acting under section 72 of Schedule IX, must personally discharge the legislative duties assigned to him and cannot delegate those duties, he had not in fact delegated his legislative powers. The Council held that the Governor-General’s emergency powers were as extensive as those of the Indian legislature, which, under the proclamation made pursuant to section 102, could legislate for a province even on matters ordinarily reserved for the Provincial legislature. Consequently, the Council saw no legal objection to the Governor-General’s ordinance taking the form whereby the actual establishment of a special court, as provided by the ordinance, would occur at the time and within the limits deemed necessary by the concerned Provincial Government. The Court characterized this arrangement not as delegated legislation but as a common legislative practice whereby the local application of a statutory provision is determined by the judgment of a local administrative authority regarding its necessity. The Privy Council expressed full agreement with the views expressed by the Chief Justice of Bengal and by Justice Khundkar on this point, noting that the latter Justice had suitably quoted a passage from the Privy Council’s decision in Russell v. The Queen (7 App. Cas. 829).

This case illustrates how far conditional legislation may extend, but it does not constitute authority supporting the delegation of legislative power that would enable an external body to alter the provisions of a statute. It is noteworthy that the initial portion of the quoted passage appears to endorse the Federal Court’s view expressed by Varadachariar J., who, relying on Street’s discussion of the Doctrine of Ultra Vires, held that a legislature is not ordinarily allowed to transfer the core legislative function even though it may lay down main principles and entrust the detailed implementation to subordinate agencies. The Federal Court decision in Jatindra Nath Gupta v. The Province of Bihar and Others [[1949] F.C.R. 595], in which the author of this judgment participated and agreed with the learned Chief Justice and his brother Mukherjea, correctly articulates the rule governing the delegation of legislative authority. The Bihar Maintenance of Public Order Act, 1947, in sub-section (3) of section 1, reads: “It shall remain in force for a period of one year from the date of its commencement. Provided that the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by 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 notification.” Acting under this proviso, the Provincial Government on 11 March 1948 issued a notification extending the Act for an additional year. The proviso to sub-section (v) of section 1 was challenged on the ground that it effectively delegated legislative power to the Provincial Government, a power the Provincial Legislature was not competent to confer. Relying on the Privy Council decision in Benoari Lal Sarma’s case [(1945) F.C.R. 161], the Court held the proviso to be void. The Court framed the issue as follows: “What does the proviso purport to do in terms and in substance?” The answer explained that the proviso authorises the Provincial Government to issue a notification stating that the Act shall continue for another year with any modifications specified therein. As noted earlier, unless the Provincial Government’s authority is identical to that of the Provincial Legislature, it is difficult to conceive how it could possess the power to modify a statute enacted by the legislature. Modifying a statute is essentially a partial re-enactment; it requires deciding that certain sections are no longer law and that a statute previously comprised of X sections is now comprised of Y sections. Consequently, the act of modification entails a legislative function rather than a mere administrative execution.

In this case the Court explained that any alteration to a statute involves a legislative power because the authority must decide, at its discretion, whether particular provisions of the statute should continue to be law in the future or should be removed. The power to alter a statute may even include the power to repeal portions of it. Consequently, a statute that has been altered is not the same as the original statute; it becomes a new enactment and, in logical terms, it amounts to the creation of a fresh law. The ordinary meaning of the word “modify” is to make something less severe, to soften it, or to make partial changes to it. Determining which modifications, if any, should be made to a statute is an exercise of law-making authority and cannot be regarded merely as the execution of a power already granted by the statute. The responsibility for deciding the extent of such changes was placed in an external authority, namely the Provincial Government. No action was being taken under any existing law; rather, what was being delegated was the authority to decide whether a law should remain in force after its normal period had ended, and, if so, what form that law should take—whether it should remain as originally enacted or be altered in some way. The body designated as a delegate to decide whether a penal Act of this nature should enjoy a longer life than originally intended by the legislature, and, if so, what modifications should apply, therefore functioned as a new kind of legislature distinct from the legislature empowered under the Government of India Act, 1935. The Court reiterated that the question of the duration of an Act belongs exclusively to the competent legislature. Whether a particular enactment should remain permanently on the statute book or only temporarily is a matter of policy for the legislature. Such a question does not fall within the scope of conditional legislation because it concerns extending the life of a temporary Act, which ceases to exist automatically when the period fixed for its operation expires. There is no real parallel between conditional legislation, which permits a known authority to determine the commencement or termination of an Act, and an act performed in the exercise of a power conferred by the Act itself. The learned Attorney-General had argued that the earlier decision had caused considerable difficulty and that several High Courts, relying on that decision, had declared certain enactments void—enactments whose validity had never previously been questioned. In the Court’s view, that decision did not disturb the law as established by the Privy Council in Burah’s case. The decision did not hold that the Indian legislature lacked the power of delegation necessary to carry out its legislative functions effectively. Rather, the decision correctly stated that essential legislative functions cannot be delegated to an external authority, and that the legislature itself could not surrender its core legislative duties.

The Court observed that the legislature could not avoid its own responsibilities by transferring the whole of those responsibilities to another body. It stated that, had the Court been persuaded that the earlier decision established an incorrect rule of law, it would have openly acknowledged the mistake without resorting to euphemistic language. The Court further noted that no single decision of the Privy Council, during the entire period of British administration in India, had ever been cited in support of the argument advanced by the Attorney-General. In contrast, the Court pointed out that eminent Indian judges, specifically Markby J. and Varadachariar J., had unequivocally affirmed, in clear and unambiguous terms, that the delegation of essential legislative power lay beyond the competence of Indian legislatures.

The Court then referred to the recent decision of The State of Bombay v. Narottamdas, reported in [1951] S.C.R. 51, a case in which the Court itself had participated. In that judgment, it was explained that the precedent set in Jatindra Nath Gupta’s case, reported in [1949] F.C.R. 595, did not forbid the delegation of legislative power when the principal Act itself set out the underlying principle and policy, and only subsidiary powers were entrusted to the provincial government for the purpose of giving effect to the enactment. The Court summed up by stating that judicial opinion on the question of delegation remained unsettled and that it was impossible to reconcile all the cited decisions using any rigid constitutional principle. It observed that, in England, Parliament was presently following the recommendations of the Donoughmore Committee; that in the United States the doctrine against delegation of legislative power continued to dominate; and that, in Canada as well as in India, the rule articulated by the Privy Council in Burah’s case, reported in [5 I.A. 178], had never been theoretically abandoned. The Court also mentioned that earlier Australian rulings had upheld the same view, although more recent Australian decisions had gone further, holding that even essential legislative power could be delegated provided that the principal did not entirely disappear.

In the Court’s opinion, the proper solution to the delegation problem could be found in an unquoted passage from the judgment of Ranney J., of the Supreme Court of Ohio, in the case Cincinnati W. and Z.R. Co. v. Clinton County Commissioners, reported in [1 Ohio St. 88]. The quoted passage stated that the crucial distinction lay between delegating the power to make law—which inevitably involves discretion over the content of the law—and conferring authority or discretion to execute the law, which is exercised under and in pursuance of the law. The Court emphasized that the first kind of delegation was impermissible, while no valid objection could be raised against the second. It further referred to the decision in Locke’s Appeal, reported in [72 Pa. St. 491], which rested on the same principle and declared that asserting a law to be inferior merely because it depends on a future event or act was untenable.

The Court observed that preventing the legislature from acting wisely for the public welfare when a statute addressed circumstances that were not yet developed, or that concerned future events and matters impossible to know fully, would effectively rob the legislature of its essential power. The Court then articulated the correct distinction, stating that while the legislature could not delegate its authority to enact legislation, it could enact a statute that delegated authority to ascertain certain facts or conditions upon which the legislation itself depended. The Court warned that denying this possibility would halt the functioning of government, because numerous facts upon which prudent and effective legislation must rely are not within the knowledge of the legislative body at the time of enactment and therefore must be subject to inquiry and determination outside the legislative chambers.

The Federal Court of India, through the opinion of Justice Varadachariar in the case of Benoari Lal Sarma, considered a submission made by the Advocate-General of India that relied upon the earlier quotation of Justice Ranney. The Court noted that it saw no inconsistency between the cited decisions of the United States courts and the principle articulated in the American authority that the Advocate-General sought to adopt. The majority of the Court endorsed the rule expressed by Chief Justice Hughes in Panama Refining Co. v. United States, emphasizing that this rule was not derived from the maxim “delegatus non potest delegare” but rather represented an elaboration of what the Judicial Committee had described in Burah’s case as the nature and principles of legislation.

The Court then posed the question of why delegation is regarded as a matter peculiar to legislative power rather than judicial power. In the judgment, it held that delegation is not a distinct content of any of the three branches—legislative, judicial, or executive—but is instead incidental to the exercise of all governmental powers because effective performance of public duties inevitably requires the assistance of agents and delegates. The Court explained that no public official can personally discharge every duty to which he is empowered without help; however, this necessity does not permit an official to transfer his own judgment and discretion to another. The Court reflected on why a legislature is fashioned with meticulous care by constitutional framers, why the constitution prescribes procedures for an elected legislature’s law-making function, and why it defines the legislature’s various functions and methods of action. The reasonable answer, the Court held, is that the constitution entrusts the judgment of the body constituted in the manner prescribed by the constitution to the exercise of its discretion in accordance with the established procedure.

The Court explained that judges must exercise their discretion by adhering to the procedures laid down in law. On that same principle, judges are not permitted to relinquish their own judgment to any other person. Only the judges themselves are trusted to determine the outcome of a case. Nevertheless, the Court observed that judges may delegate ancillary powers to suitable officers. For example, in suits relating to accounts or the dissolution of a partnership, the Court may appoint commissioners and empower them to resolve points of difference between the parties concerning items in the account.

The Court then turned to the question of why other public officials, such as those responsible for appointing public servants, cannot delegate that specific duty to others. The Court answered that the same principle applies: the core function cannot be handed over. The Court posed this query to the Attorney-General, but the response received was not satisfactory. The Attorney-General suggested that the nature of the power might require the personal attention of the authorized authority, and therefore delegation would be implicitly prohibited.

In the Court’s view, that reasoning also precludes the delegation of essential legislative power. The power to legislate is intrinsically linked to the authority of a legislature that has been elected for that purpose and meets the qualifications prescribed by the Constitution. To assign that power to another individual would breach a constitutional duty. The Court cited Sir John Salmond, who described legislation as a power so important that it should be committed only to the incorporated community itself, with the State ordinarily promulgating the great bulk of enacted law in its own name, although in rare and exceptional cases it may be permissible to entrust such power to private hands.

Further, the Court referred to the observations of Mr. Dixon, who noted that permitting another body to make laws on a particular subject does not itself constitute the making of a law on that subject. The Court also reproduced a quotation from Baker’s treatise, which declares as a constitutional axiom that representative legislative bodies cannot delegate legislative power because the people vest in elected representatives the sacred trust of voting, taxing, and enacting laws. Another jurist was cited as saying that legislation is the formal utterance of the legislative organ of society alone; the words of any delegate do not become law.

Turning to private law, the Court affirmed the settled rule that an arbitrator cannot lawfully transfer his duty to another person unless expressly authorized, because the duty requires personal judgment and discretion. Similarly, fiduciary duties may not be delegated, although trustees may use machinery or subordinate agencies to assist in performing certain functions.

Delegation of duties may be allowed only when a legal or practical necessity exists, because without entrusting certain functions to another person it would be impossible to perform those duties efficiently. It is clear, however, that municipal corporations and other similar bodies are not permitted to delegate the power to make bylaws to their executive officers, since that power is conferred upon them in their corporate capacity and must be exercised in that same capacity. The principle that delegation is generally prohibited in private law therefore appears to be applicable, by analogy, to the performance of duties by public officials and by the legislature. The nature of a public duty, in my view, inherently requires that it be carried out by the individual or body expressly entrusted with it, and not by any other person. Consequently, both the character of a public duty and the underlying principles of legislation compel that the duty be performed by the designated authority alone. For these reasons, I am unable to accept the argument advanced by the learned Attorney-General that, in the absence of an express or implied constitutional provision, legislative authority may be delegated to other persons. My position is that, unless there is a clear express or implicit authorization, such delegation is impermissible. The limited exceptions to this rule fall into two categories, as set out in the earlier quotation from Crawford’s work cited in this judgment. It is now appropriate to examine the provisions of our Constitution to assess the contention of the learned Attorney-General that the Constitution is modelled on the British system and that the Parliament of India enjoys the same omnipotence as the British Parliament, thereby placing the matter of legislative delegation on an analogous footing. In my assessment, however, the Constitution represents a careful blend of the American model with the British parliamentary tradition. Its primary framework follows the Government of India Act, 1935, which establishes a federation of States and provides for an executive that is responsible to the legislature. The framers, although they drew ideas from various foreign constitutions, did not rigidly adhere to any single model. Certain provisions in our Constitution have no counterpart in the constitutions of any other country, indicating that the drafters were mindful both of the need for administrative convenience and of the dangers inherent in a system that would permit unfettered delegation of legislative power to the executive. Having recently emerged from a bureaucratic system that stifled the nation’s vitality, the Constitution’s architects evidently sought to prevent a return to such rigidity. They recognized that unchecked delegation would foster bureaucratic rule, a condition that would undermine democratic governance. To avoid this, they incorporated detailed provisions throughout the Constitution addressing all matters, thereby limiting any possibility of unrestricted legislative delegation. It

It was emphasized that no other nation possessed a constitution as elaborate and comprehensive as that of the Republic, and therefore it would be inappropriate to interpret this constitution by reliance on decisions made for constitutions that were fashioned in a different manner. The Court held that only after a full consideration of every provision of the Constitution and of its overall scheme could it be determined whether any delegation of power—whether legislative, executive, or judicial—was implied in the grant of a particular authority or whether such delegation had been expressly supplied, to the extent that it was deemed necessary for administrative convenience during peace or war. Consequently, a power could not be said to be conferred by implication if the true construction of the Constitution required explicit provision.

The Court further observed that the Indian Constitution differed fundamentally from the British system because the doctrine of parliamentary supremacy was limited. The courts were empowered to declare an act of Parliament unconstitutional when it conflicted with Part III of the Constitution or when it infringed upon subjects that were reserved for State legislatures. Implicit in the demarcation of legislative fields, the Court noted, was the principle that one legislature could not, by delegating subjects that fell exclusively within its own domain, endow another legislature with the capacity to make laws on those subjects, as such a delegation would constitute an infringement of the Constitution itself. Accordingly, the Court concluded that the Constitution prohibited delegation of legislative power to such an extent.

To illustrate this principle, the Court contrasted defence, a Union subject, with law and order, a State subject. It asked whether it could be reasonably argued that Parliament might empower a State legislature to legislate on defence, or that a State legislature might empower Parliament to legislate on law and order. The Court rejected any such argument, holding that such delegation would be contrary to the Constitution and lay outside its contemplated scheme.

The Court also explained that if a transfer of power between the two legislatures was impermissible, it would be difficult to justify a similar transfer in favour of the executive, except to the extent permitted by the Constitution or already recognised under the concepts of “conditional legislation” or “rule-making power,” which the framers were presumed to have understood. The Court expressed no hesitation in holding that the framers had adopted the American doctrine that disfavour­ed delegation of legislative power, and that, for reasons of administrative convenience and to meet special circumstances, they had carefully inserted explicit provisions within the Constitution for the devolution of powers in such eventualities.

The Court then referred to Article 53 of the Constitution, which concerned the executive power of the Union. It noted that this power was vested in the President and that the article expressly stated that the President would exercise the executive power either directly or through subordinate officers in accordance with the Constitution.

Article 53 stated that the executive power of the Union must be exercised by the President either personally or through officers subordinate to him, in accordance with the Constitution. The provision also empowered Parliament, by law, to assign functions to authorities other than the President, thereby allowing delegation of certain executive duties. A careful reading of Article 53 revealed that the Constitution contained an elaborate scheme for employing agencies and machinery to implement the Union’s executive power. The President was expressly vested with the supreme command of the Defence Forces, yet Article 53(3)(b) additionally permitted Parliament to delegate aspects of executive authority to other bodies. A comparable arrangement was made for the executive power of each State, as laid down in Article 154, which authorized similar delegations at the State level. Article 77 prescribed how the business of the Government of India should be conducted, giving the President power to make rules for convenient transaction of that business. The same article also allowed the President to allocate the various governmental functions among the Ministers, thereby ensuring orderly distribution of responsibilities. Such a detailed division of executive authority was not found in the other constitutions that the framers of our Constitution had consulted. Article 79 established that there shall be a Parliament for the Union, and subsequent provisions detailed the composition, procedures, officers, secretariat, and powers of that Parliament. Articles 107 to 119 dealt specifically with legislative procedure, implicitly confirming that the Constitution had granted law-making powers to the body so constituted. Consequently, the Parliament, in its corporate capacity, was required to exercise judgment and discretion in enacting statutes and levying taxes, adhering to the procedural rules set out therein. Article 123 conferred legislative power on the President during periods when Parliament was not in session, and this power was co-extensive with the legislative authority of Parliament itself. Article 124 addressed the Union judiciary, specifying the number of Judges, the method of their appointment, and providing that the President would make such appointments. Article 140 empowered Parliament to confer supplemental powers on the Supreme Court whenever such powers appeared necessary for the Court to more effectively exercise the jurisdiction assigned to it by the Constitution. The presence of this explicit provision, in my view, clearly contradicted the argument advanced by the learned Attorney-General that delegation of legislative power was implicit in the power of legislation itself. If delegation were indeed implicit, the framers would not have found it necessary to insert a specific clause in Article 140 authorising Parliament to grant ancillary powers to the Supreme Court. Parliament, as a Union List subject, obviously possessed the authority to legislate on matters relating to the Supreme Court.

In this matter, the Court observed that Article 145(1)(a) of the Constitution directly undermines the argument advanced by the learned Attorney-General. The Constitution expressly empowers the Supreme Court to formulate rules governing the persons who appear and practice before it. Such rule-making authority falls within a subject listed in the Union List, and the constitutional grant of this power is expressly made subject to any law that Parliament may enact. In other words, Parliament possesses a clear statutory competence to either withdraw the Supreme Court’s rule-making power or to modify it by passing appropriate legislation. The Court held that a provision allowing Parliament to alter a power that the Constitution itself delegated to the judiciary is quite alien to a constitutional scheme in which the delegation of law-making authority is presumed to be implicit.

The Court then noted several other constitutional provisions that illustrate the careful allocation of legislative and executive functions. Article 217 details the procedure for appointing High Court judges, while Article 227 gives High Courts the authority to make rules concerning their own proceedings. Article 243 authorises the President to issue regulations for the peace and good government of territories enumerated in Part D of the First Schedule, and in exercising that authority the President may repeal or amend any existing law made by Parliament. Thus, the Constitution itself delegates certain parliamentary powers to the President wherever it deems such delegation necessary.

Further, Articles 245 and 246 delineate the respective legislative fields of Parliament and the State legislatures, and Article 248 reserves any residual legislative authority in the Parliament. Article 250 provides for a situation of emergency, granting Parliament the power to legislate for the entire territory of India or any part thereof on matters that ordinarily fall within the State List. Article 252 contains a distinct mechanism whereby Parliament may legislate for two or more States, but only with the consent of those States; this represents Parliament acting as a delegate of State authority, acquiring legislative power solely on the basis of such consent.

Article 258 empowers the President, with the concurrence of a State government, to entrust either conditionally or unconditionally certain functions related to any matter within the Union’s executive domain to that State government or its officers. That article also contemplates the delegation of powers by a law made by Parliament. Article 349, by contrast, limits Parliament’s competence to enact laws concerning language. Finally, Article 353 addresses the effect of a proclamation of emergency, stating that the Union’s executive power in such circumstances extends to issuing directions to any State regarding the manner of exercise of its own executive authority. Clause (2) of Article 353 is particularly significant because it expressly confirms that Parliament’s power to legislate includes the authority to enact statutes that confer powers, impose duties, or authorise the conferral of such powers and duties upon the Union, its officers or its authorities, even when the subject matter is not listed in the Union List.

In this case, the Court observed that the Constitution permits the Union, including its officers and authorities, to act on matters that are not listed in the Union List. It noted that during a national emergency, Article 250 gives Parliament complete authority to legislate on subjects that ordinarily fall within the State List, and that Parliament may delegate such legislative power when it forms part of its legislative competence. However, the framers of the Constitution had deliberately provided a specific provision for delegation in those circumstances.

Article 357 was quoted in full. The Court explained that when a proclamation under clause (1) of Article 356 declares that the legislative powers of a State are to be exercised by Parliament, Parliament may then empower the President to assume the legislative functions of the State. Moreover, Parliament may authorize the President to further delegate the conferred power to any other authority that the President may specify, subject to conditions that the President deems appropriate. The Court emphasized that this article is the sole constitutional source that expressly authorises the delegation of essential legislative power.

The Court reasoned that the framers must have intended that, in such a contingency, it was necessary for Parliament to be able to vest legislative authority upon the executive, thereby giving the executive a legislative capacity within the State field, and additionally to allow the President to pass that legislative power on to another designated authority.

To illustrate the point, the Court referred to specific entries in the Seventh Schedule. It listed Entry 93 of List I, which concerns offences against laws relating to any matter in the List; Entry 94, concerning inquiries, surveys and statistics for any matter in the List; Entry 96, dealing with fees in respect of any matter in the List, excluding court fees; and Entry 95, regarding the jurisdiction and powers of all courts except the Supreme Court with respect to any matter in the List. The Court described these entries as matters that are incidental and ancillary to the principal subjects of legislation contained in the Lists. Similar ancillary entries appear in List II and List III.

The Court concluded that the Constitution deliberately confers legislative power in explicit terms even over incidental matters, making it unnecessary to imply the existence of any additional powers not expressly mentioned. The Court stated that it was satisfied that the Constitution-makers had examined every aspect of delegation—executive, legislative and judicial—and had provided explicit provisions whenever they deemed it necessary. Consequently, the Court held that the doctrine advocated by the Attorney-General could not be applied, and that, absent an express constitutional power of delegation, Parliament possessed no authority to delegate its essential legislative functions to another body.

In this case, the Court observed that the Constitution of India does not permit the delegation of essential legislative functions to any other body, whether that body is a State legislature or an executive authority, except for functions that are truly ministerial in nature. The Court explained that the constitutional scheme, together with the provisions of the Government of India Act of 1935, expressly assigned legislative capacity to certain designated bodies and individuals, and it also authorised the creation of law-making bodies only where the Constitution itself provided for such bodies. No authority was given to create a new law-making entity that had not been established by the Constitution. The Court noted that, in some limited circumstances, the Constitution even treated the executive as possessing legislative powers. Under these circumstances, the Court held that it is impossible to expand the roster of legislative authorities by means of a delegation process. The Court quoted the authority of Crawford on Statutory Construction, stating that where a statute lists the matters to which it applies, everything not listed is necessarily excluded by implication. Accordingly, if a statute directs specific acts to be performed in a particular manner by particular persons, any performance of those acts in any other manner or by any other persons is impliedly prohibited. The ordinary rule, the Court said, is that an affirmative grant of authority that is conditioned upon a defined circumstance excludes the performance of the authorised act under any other circumstances. Under the Government of India Act of 1935, the executive possessed a broader legislative power than the new Constitution now allows. The Court observed that the new Constitution has reduced that executive legislative power to a certain extent. While the Constitution gives Parliament the authority to make laws for the State of Delhi and also permits Parliament to create a legislature for that State, it already identifies the bodies competent to legislate for Delhi. Consequently, the Court concluded that delegating essential legislative power to the executive would be unconstitutional, and that any legislative practices that existed before the Constitution in areas that were undeveloped or excluded have no relevance to the issue at hand.

Having examined the provisions of the new Constitution, the Court then turned to the constitutional position of the Indian legislature as it existed under the Indian Councils Act of 1861 and the Government of India Act of 1935, as later adapted by the Indian Independence Act of 1947. The Court reiterated that the Government of India Act of 1935 envisioned a federal constitution for India with a clear division of legislative authority between the Federation and the States, and that the scheme of that Act has been adopted in the new Constitution. The Court expressed respectful agreement with the view advanced by Justice Varadachariar in the case of Benoari Lal Sarma, which held that the constitutional arrangement under the 1935 Act more closely resembled the American model than the English model. The Court further observed that, under the provisions of the 1935 Act, delegation of legislative power in its essential aspect is not permissible. The Court noted that even during a state of emergency, the Governor-General could, by his own proclamation, assume both executive and legislative functions, but that such an arrangement did not create a general authority in Parliament to delegate essential legislative power. The Court affirmed that the detailed provisions of the 1935 Act and the Indian Independence Act expressly authorised delegation of power in the executive and legislative fields only where it was considered necessary, and that the Constitution of India has incorporated those limitations into its own scheme.

The Court observed that under the Government of India Act, 1935, the Governor-General possessed the authority, by means of his own proclamation, to assume both executive and legislative functions. The Court held that the mere need for administrative convenience did not create a compelling reason to imply that Parliament was authorised, within the framework of the Act, to delegate legislative power. Moreover, the Act itself contained explicit provisions that permitted the delegation of authority in both the executive and legislative spheres whenever such delegation was deemed necessary. The Indian Independence Act, in its section 6, transferred to the Dominion Parliament the power of legislation within the scope of the 1935 Act. By other sections, the Indian Independence Act designated the Dominion Parliament as a Constituent Assembly for the purpose of drafting India’s new constitution and also granted it the authority to repeal existing Acts of Parliament. For the ordinary purpose of making law, the Dominion Parliament possessed the same legislative powers that the legislatures under the Government of India Act, 1935 had enjoyed. Consequently, the question concerning the Ajmer-Merwara Act, 1947, had to be resolved by referring to the constitutional provisions contained in the Constitution Act of 1935. The Court then recounted the constitutional situation in India before the 1935 Act. Prior to the Charter Act of 1833, legislative authority was divided between the Governor-General and the Presidencies. The Charter Act of 1833 abolished the legislative powers of the Presidencies, consolidating all law-making authority in the Governor-General in Council. Although Mr Macaulay was added as a legislative member to the Executive Council, he held no voting right; nevertheless, executive and legislative duties were effectively performed by the same body with his counsel. With minor adjustments, this arrangement persisted until the Indian Councils Act of 1861. Under that Act, the Governor-General in Council could legislate for the whole of India, while provincial legislatures could also enact laws for their respective provinces. Section 10 vested legislative power in the Governor-General in Council, and section 15 specified the manner of exercising that power. Section 18 authorized the Governor-General to formulate rules for conducting legislative business, while section 22 defined the scope of legislative power. Section 23 gave the Governor-General emergency powers to issue ordinances, and section 44 empowered him to create local legislatures and delegate legislative authority to them. The scheme of the Councils Act made it clear that whenever Parliament intended the Governor-General in Council to possess powers such as creating legislatures or framing rules, those powers were to be conferred in explicit terms. Additionally, a statute of 1870 granted the Governor-General, in his executive capacity, summary law-making powers over less-developed, non-regulation provinces, a power that would not have required another charter if the Governor-General could have acquired legislative authority through a delegation process from his own Council.

In this case, the Court observed that the constitution imagined by the Indian Councils Act of 1861 did not permit any of the legislative bodies created under that Act to transfer essential legislative authority to the executive branch. The Court explained that because such delegation was not authorized, the Privy Council, in the earlier Burah’s case (5 I.A. 178), had not based its decision on the issue of delegation. Instead, the Privy Council had upheld the legislation as within the powers of the legislature by relying on the principle of conditional legislation. The Court further expressed respectful agreement with the opinion of Justice Markby, rendered in 1877, which stated that any substantial delegation of legislative authority by the legislature of the country would be void. The Privy Council, when hearing the appeal, did not dissent from that view.

The argument was advanced that, historically, Indian legislative practice had consistently validated statutes fashioned on the model of the three statutes presently under consideration. To support this claim, reference was made to the observations in United States v. Curtiss-Wright (299 U.S. 304), where it was noted that a uniform, long-standing, and undisputed legislative practice, founded upon an admissible interpretation of the constitution, strongly supports the conclusion that such practice is constitutionally sound. After examining the record, the Court concluded that there was no evidence of any uniform, long-continued, and undisputed legislative practice in this jurisdiction that would endorse statutes drafted in a manner similar to the statutes in question. The material presented in support of the argument was found to be extremely scant and insufficient to justify the conclusion that the statutes were validated by longstanding practice.

The annexure labeled “Annexure (A)”, which had been submitted on behalf of the President, identified only two instances occurring before the year 1912 that were alleged to demonstrate such an enduring legislative practice. The Court noted, however, that even these two instances were not comparable to the statutes presently under scrutiny, because the substantive schemes of those earlier enactments differed markedly from the scheme of the present legislation. The first cited instance concerned section 5(a) of the Scheduled Districts Act, 1874, as amended by Act XII of 1891. That provision allowed the Local Government, after obtaining prior sanction from the Governor-General in Council for declaring an enactment applicable in a scheduled district or extending an enactment to such a district, to declare the application of the Act subject to any restrictions and modifications the Government deemed appropriate. The Court observed that section 7 of the Delhi Laws Act was not drafted in the same terms as section 5(a) of the Scheduled Districts Act. Although, constitutionally, the Governor-General performed executive and legislative functions in separate meetings with the assistance of additional members, in practice the Governor-General effectively spoke for both the executive and the legislature. Consequently, where prior sanction of that authority was required before making a declaration, the earlier instance could not be regarded as establishing a legislative practice applicable to the provisions of section 7 of the Delhi Laws Act.

In this discussion, the Court observed that even when a law is applied with modifications, the example presented does not represent a legislative practice that validates what is contained in section 7 of the Delhi Laws Act. The Court then examined a second illustration, namely the Burma Laws Act of 1898. Section 10 of that Act permitted the Local Government, by way of a notification and with the prior sanction of the Governor-General in Council, to extend certain statutes that were already in force in any part of Upper Burma to other areas, subject to any restrictions or modifications deemed appropriate. Additionally, section 4 of the same Act contained a schedule listing all statutes that were operative in Upper Burma at the time the Burma Laws Act was enacted. The Court found that this illustration likewise failed to provide evidence of a legislative practice that would support the validation of section 7 of the Delhi Laws Act, because the Delhi Laws Act lacks a provision comparable to the schedule in section 4 of the Burma Laws Act and also lacks a requirement similar to the one in section 5(a) of the Scheduled Districts Act, which demands prior approval from the Governor-General in Council. Both of these significant features are absent from the Delhi Laws Act. The Court further noted that between 1861 and 1912—a span of more than fifty years—only two such instances occurred, and they happened within a period of seven years of each other. Consequently, these two examples cannot satisfy the criterion articulated in the earlier cited case for establishing a uniform legislative practice.

After 1912, the Court identified three additional examples of legislation that bore some resemblance to the scheme of section 7 of the Delhi Laws Act, though none were identical. The first example involved sections 68 and 73 of the Inland Steam Vessels Act, 1917, where section 17 authorized the modification of an enactment for the purpose of adaptation, and section 68 allowed the extension of certain chapters to designated areas with modifications. The Court held that this did not constitute the type of legislation embodied in section 7 of the Delhi Laws Act, 1912, nor that found in the Ajmer-Merwara Act, 1947. The second example concerned the Cantonments Act, 1924. Section 9 of that Act empowered the Central Government, by notification, either to exclude any part of the Act from applying to a cantonment wholly or partially, or to prescribe that any provision of the Act shall, in the context of a cantonment, operate with specified modifications. The third example was found in section 30 of the Petroleum Act, 1934, which permitted the Central Government, by notification, to apply all or any provisions of the Act, with such modifications as deemed fit, to any other dangerous inflammable substance; this represented an instance of adding items to a schedule annexed to an Act. The Court concluded that these three instances, occurring between 1917 and 1934—a period of seventeen years—demonstrated only a limited similarity to the legislation of the Delhi Laws Act, 1912, and therefore did not establish a consistent legislative practice from which a uniform rule could be derived.

The Court recorded that counsel appearing for the Government of Uttar Pradesh had submitted a note referring to a provision in the Uttar Pradesh Land Revenue Act, III of 1901. That provision, found in section 1 sub-section (2), authorised the State Government, by way of a public notification, to extend the whole or any part of the Act to all or any of the areas that were otherwise excepted, and to do so subject to such exceptions or modifications as the Government thought appropriate. The Court observed that, although the submission identified a mechanism for extending legislation, the example did not materially affect the question before the Court regarding the validity of the provision under scrutiny.

Subsequently, after a fortnight of research, the Attorney-General furnished the Court with a supplementary list of examples intended to support his contention that similar legislative practices existed elsewhere. Among the items listed were two provisions, sections 8 and 9 of Act XXII of 1869, which had been examined in the decision of Burah’s case (5 I.A. 178). A third example derived from section 39 of Act XXIII of 1861, also considered in that same case, had already been discussed earlier in the judgment. The only novel example cited by the Attorney-General concerned the Aircraft Act of 1934, which permitted modification of the specifications of an aircraft but did not confer any authority to alter any law. Two further entries concerned the Airforce Act of 1950; however, because that Act was enacted after the Delhi Laws Act of 1912, the Court held it could not be relevant to the present enquiry. The final entry referred to the Madras Local Boards Act of 1920, which empowered the Governor to extend that Act with certain modifications to areas to which it had not originally applied. The Court noted that this 1920 enactment could not be relied upon to determine the validity of section 7 of the 1912 Act, since the latter pre-dated the former by eight years.

The Court then turned to an instance that at first glance appeared similar to the enactment contained in section 7 of the Delhi Laws Act. That comparable provision was section 8 of Act XXII of 1869, a provision that had been considered by the Privy Council in Burah’s case (5 I.A. 178). Upon close examination, the Court found that the two provisions did not share a real resemblance. Act XXII of 1869 had been enacted solely to remove the Garo Hills from the jurisdiction of tribunals established under the General Regulations, and its purpose was therefore narrowly confined. By virtue of section 5, the administration of the area was placed in the hands of officers appointed by the Lieutenant-Governor of Bengal, who were required to act under his direction and instructions, meaning that executive control of the territory rested with the Lieutenant-Governor. Section 8 of that Act authorised the Lieutenant-Governor, by publishing a notice in the Calcutta Gazette, to extend to the excluded territories the laws in force in other territories, or any future laws that might be enacted by the Council of the Governor-General or the Lieutenant-Governor with respect to those territories. Both the Council and the Lieutenant-Governor possessed the competence to make laws for the province of Bengal. The Court observed that the validity of section 8 had not been challenged in Burah’s case (72 I.A. 57) and that no argument had been raised concerning its permissibility.

The Court noted that the judgment of the earlier Lordships contained certain observations which were highlighted for consideration. The quoted passage explained that the Governor-General in Council, acting in the normal legislative process, decided to withdraw a specific district from the authority of the regular courts and offices and to place it under newly created courts and offices that would be appointed by, and answerable to, the Lieutenant-Governor of Bengal. The passage further clarified that the Lieutenant-Governor was given the discretion to determine the moment when this change would be implemented. Moreover, the Lieutenant-Governor was not granted the power to fashion new laws arbitrarily for that district or any other; instead, he could, by public notification, apply to the district any law or portion of a law that already existed or might subsequently exist, provided such law had been enacted by the proper legislative authority in the other territories falling under his government. The legislature therefore resolved that a particular alteration should occur, but it was considered prudent to leave the timing and manner of its execution to the Lieutenant-Governor’s judgment, and also to deem the laws already in force, or that might later be in force, in the other territories governed by the same authority as suitable for application to the district in question. The Court explained that these observations simply meant that once a competent legislature had enacted a law for the territory within its jurisdiction, that law could be extended to a district that had been excluded for certain purposes through a notification issued by the Lieutenant-Governor. As previously indicated, the Lieutenant-Governor possessed the authority to legislate for the entire province of Bengal, and likewise the Governor-General in Council held a comparable power. Once the law was duly made by a competent legislature for the territory over which it had legislative competence, the only remaining authority of the Governor-General was to extend that legislation to an excluded area; however, the Court held that this was not the scheme adopted by the Delhi Laws Act. The Court later demonstrated that Section 7 of the Delhi Laws Act authorised the Governor-General, in his executive capacity, to extend to Delhi statutes that had been enacted by legislatures lacking any jurisdiction or competence to legislate for Delhi.

Having set out the principles that would guide the answers to the questions referred, the Court proceeded to express its opinion on each of the three questions. The first question concerned the validity, either in whole or in part, of Section 7 of the Delhi Laws Act, 1912. The provision as originally enacted in 1912 read: “The Governor-General in Council may by notification in the official gazette extend with such restrictions and modifications as he thinks fit to the Province of Delhi or any part thereof any enactment which in force in any part of British India at the date of such notification.” The Court observed that this wording gave the Governor-General an essentially unrestricted power to apply, with any desired restrictions or modifications, any law that was then in force in any part of British India to the newly formed Province of Delhi or any portion of it. In other words, the clause conferred a carte blanche authority on the Governor-General to extend to Delhi any existing enactment from any part of the country, without limitation to statutes that were within the legislative competence of the body that originally passed them. This broad discretion formed the basis for the Court’s subsequent analysis of the provision’s constitutional and statutory validity.

It was observed that the provision referred to applied only to enactments that were in force at the date of the Governor-General’s notification and not to every enactment that existed throughout British India at the time the Delhi Laws Act was passed. No schedule was attached to the Act listing the statutes that were then in force in any part of British India at the moment of its enactment. Consequently, regarding statutes that might be in force in any part of British India at the date of a subsequent notification, there was no way of knowing which laws would be applicable. Laws that were to be created after 1912 could not have been anticipated by the legislature that framed section 7 of the Delhi Laws Act, and therefore the legislature could not have exercised any judgment or discretion with respect to those future statutes. Moreover, the provision conferred on the Governor-General the power to modify both existing and future enactments passed by various legislatures throughout the country. The power of modification inherently includes the power to amend those statutes. Using the language of a learned judge, the section accorded a vague, wide, unstructured and unconstrained authority to the Governor-General. The section contained no mechanism by which the legislative intention could ever be applied to the amendments that the Governor-General might make to the different statutes of the various Indian legislatures that were extended to Delhi. For illustration, it was pointed out that numerous end-control Acts had been enacted by different Indian legislatures, each establishing distinct policies and principles. Under the Delhi Laws Act the Provincial Government could adopt the policy of any one of those Acts for Delhi, or could fashion a policy by combining provisions of several such statutes. Legislative policy on rent control, for example, had not been formulated by 1912. Similarly, in the field of prohibition, different State governments had adopted either total prohibition or a local-option approach. The question of which policy should apply to Delhi and who should decide was left entirely to the Governor-General under section 7, allowing the Provincial Government to adopt any policy it chose, whether partial or complete prohibition, and to apply any law it deemed appropriate to Delhi. Thus, within the broad delegation of authority granted by section 7, the executive could perform essential legislative functions and effectively became the legislature for Delhi. The enactment of section 7 therefore amounted to a virtual abdication by the legislature of its legislative power in favour of the executive, a move that was not justified by the Indian Councils Act, 1861, nor by any Privy Council decision or established legislative practice. In the Court’s view, the provision was therefore ultra vires the Indian Councils Act, 1861, in the following respect: (i)

In this part of the judgment, the Court observed that section 7 of the Delhi Laws Act was problematic because it authorised the executive to apply to Delhi statutes that had been passed by legislatures which were not competent to make laws for Delhi, and it also gave the executive a legislative power that was equal in scope to that of the legislature for the purpose of modifying those statutes. The Court noted that if the Act had simply attached a list of existing statutes that had been enacted by the Governor-General in Council in his legislative capacity, and a list of statutes that had been adopted by other legislatures, then the delegation of power—without granting the executive any authority to amend those statutes—might have been valid. However, that was not the effect of the provision as enacted. The Court further held that the authority to extend future statutes made by the Governor-General in Council for the whole of India, or to adopt statutes later passed by other legislatures, would also have been within the constitutional limits, but the legislature had gone beyond this permissible scope. In effect, the Court said that section 7 implied that the legislature itself possessed no independent policy and that the Governor-General in Council could both declare and determine which laws would operate in Delhi. The second issue concerned section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, which empowered the Central Government, by notification in the official gazette, to extend to the province of Ajmer-Merwara any enactment that was in force in any other province at the date of the notification, with such restrictions and modifications as it thought fit. Relying on the reasons that had led to the finding that section 7 of the Delhi Laws Act was ultra vires the Constitution in two respects, the Court concluded that this provision of the Ajmer-Merwara Act was likewise ultra vires the Government of India Act, 1935 for the same reasons. The provision did not itself prescribe any law; rather, it conferred upon the Central Government the power to determine what the law would be. The choice to select any enactment in force in any province at the time of the notification demonstrated that the legislature had made no declaration of principles or policies concerning the law to be made on any subject. The Court pointed out that under the 1935 Act, each province possessed the exclusive authority to set its own policies concerning subjects within its legislative field, and that the decision as to which policy would apply to Delhi—whether the policy of Punjab or that of Bombay—had been left to the Central Government. To illustrate the potential injustice of such a scheme, the Court referred to the extension of the Bombay Agricultural Debtors’ Relief Act, 1947, to Ajmer-Merwara under this provision, together with a modification that altered the definition of “debtor.” This amendment effectively changed the entire policy of the Bombay Act, showing that the power to extend and modify statutes amounted to the creation of a new law by a body that the Constitution had not contemplated and that was not authorised to enact legislation.

The judgment explained that the original provision defined a debtor as a person who was indebted and whose annual income from non-agricultural and non-manual labour did not exceed thirty-three per cent of his total annual income or did not exceed Rs 500, whichever was greater. The amended statutes replaced that definition by stating that a “debtor” was an agriculturist who owed a debt, and that an “agriculturist” was a person whose livelihood was derived from agriculture and whose income from agricultural sources exceeded sixty-six per cent of his total income. The amendment also removed the outer limit of Rs 500. The Court observed that exercising the power to make such a change amounted to the creation of a new law by an entity that the Constitution did not contemplate and that was not authorised to enact legislation. The Court then posed the question whether the Indian legislature, under the 1935 Act, could empower the executive to extend to Delhi any law that might later be made by a legislature in a distant jurisdiction such as Timbuctoo or Soviet Russia, with appropriate modifications. The Court answered this question in the negative, reasoning that the policy underlying such foreign laws could never be determined by the body responsible for lawmaking in Delhi. It further noted that the provincial legislatures in India, as constituted under the Constitution Act of 1935 with respect to Delhi, stood on no better constitutional footing than the legislatures of Timbuctoo or Soviet Russia, even though the latter were geographically and politically different. (274)

The judgment then turned to the third question, which concerned section 2 of the Part C States (Laws) Act, 1950. That section provided that the Central Government could, by notification in the official Gazette, extend to any Part C State (excluding Coorg and the Andaman and Nicobar Islands) or to any part of such a State, any enactment that was in force in a Part A State on the date of the notification, with such restrictions or modifications as it thought fit. The provision further allowed for the repeal or amendment of any corresponding law (other than a Central Act) then applicable to that Part C State. The Court held, for the same reasons it had given in answering questions 1 and 2, that the enactments referred to in this provision were ultra vires the Constitution in the respects specified, and therefore the question was answered in the same manner. The Court observed that even if the Central Government possessed an explicit power to repeal the laws already applicable in Part C States, the power to amend or repeal laws is a power that can be exercised only by an authority that has the power to enact laws. Such power is co-ordinate and co-extensive with the legislative power itself. By granting the Central Government the same capacity that the legislature possesses, the Parliament had acted unconstitutionally. (275 – 276) In forming its opinion on the matters referred, the Court noted that it had approached the issue with great caution and patience, applying the rule that any reasonable doubt concerning the constitutional validity of a statute should be resolved in favour of legislative action; however, it concluded that the legislative actions in the statutes under consideration exceeded the constitutional limits.

The Court observed that the matters referred for opinion were of such a drastic, wide and indefinite character that it was impossible to conclude that every detail of the enactments under consideration was constitutional. The reference had been made by the President of India pursuant to article 143(1) of the Constitution, seeking the Court’s opinion on three specific questions. The first question asked whether section 7 of the Delhi Laws Act, 1912, or any of its provisions, was ultra vires the Legislature that enacted it, and, if so, in what particular respects. The second question inquired whether the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions, was ultra vires the Legislature that passed it, and to what extent. The third question sought to know whether section 2 of the Part C States (Laws) Act, 1950, or any of its provisions, was ultra vires the Parliament, and again, in what particular respects. The Court noted that the need for this advisory opinion arose because of the Federal Court’s decision in Jatindra Nath Gupta v. Province of Bihar (1949-50) F.C.R. 595, which held that the proviso to sub-section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra vires the Bihar Provincial Legislature since it amounted to a delegation of legislative power to an external authority. That judgment raised doubts about the validity of the three legislative provisions now before the Court, and the legality of the first two provisions was already being contested in pending proceedings before several High Courts. The Court then set out the historical background of the Delhi Laws Act, 1912, the earliest of the statutes in question. That Act had been passed in 1912 by the Governor-General in Council at its legislative meeting, which at the time constituted the legislature for British India under the Indian Councils Acts of 1861-1909. Until 17 September 1912, Delhi formed part of the Punjab Province; on that date it was constituted as a Chief Commissioner’s Province, and on the following day the Governor-General’s Legislative Council enacted the Delhi Laws Act (Act XIII) 1912, which came into force on 1 October 1912. Section 7 of that Act, the source of the present controversy, provides: “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.” Finally, the Court recounted that the Ajmer-Merwara (Extension of Laws) Act had been enacted on 31 December 1947 by the Dominion Legislature of India under the provisions of the Government of India Act.

The legislation enacted in 1935, which was later modified by the Indian Independence Act of 1947, included a provision labelled Section 2 that provided: “2. Extension of enactments to Ajmer-Merwara—The Central Government may be notification in the official gazette extend to the province of Ajmer-Merwara with such restrictions and modifications as thinks fit any enactment which is in force in any other province at the date of such notification.” Subsequently, after the Constitution of India came into force, Parliament passed the Part C States (Laws) Act of 1950. The portion of that Act which gave rise to the present dispute was also Section 2, and it stated: “2. Power to extend enactments to certain Part C States—The Central Government may, by notification in the official gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State with such restrictions and modifications as it thinks fit any enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.” It was observed that each of these three statutes—the Delhi Laws Act, the Ajmer-Merwara Extension of Laws Act, and the Part C States (Laws) Act—contained a grant by the respective legislatures of certain powers that the legislatures themselves could have exercised. The statutes delegated to an external authority not only the power to extend laws that were already operative in other parts of India to the designated territories, but also the authority to introduce any restrictions or modifications that the external authority thought appropriate. The core of the controversy revolved around whether such delegation of legislative power fell within the competence of the legislatures that had passed the enactments. The Attorney-General, appearing on behalf of the President of India, contended that a legislature which possessed the competence to legislate on a particular subject also possessed the competence to delegate its legislative powers on that subject to any agent or external authority it deemed suitable. According to that submission, the scope and limits of such delegation were matters for the legislature to determine, and the judiciary had no role in reviewing them. The Attorney-General identified only two possible constraints on a competent legislature’s power to delegate. First, the legislature could not completely abandon or surrender its legislative authority, nor could it create a new legislative power that was not authorised by the constitutional framework. Second, where the Constitution allocated legislative powers among different bodies, one legislature could not delegate to another the powers that the Constitution vested exclusively in the latter.

The Court noted that, except for the two limitations previously identified, the doctrine that prohibits a legislature from delegating its authority has no place in a constitution patterned after the English system, which does not recognise the separation of powers principle as it exists in the American system. It emphasized that these matters are of great constitutional significance and therefore demand careful analysis. The Court explained that in the United States the rule against delegation of legislative powers is founded primarily on the traditional American doctrine of separation of powers. Another principle that supports this rule is the well-known maxim of private law, “delegates non potest delegare,” which traces its authority to one of the dicta of Sir Edward Coke. The modern doctrine of separation of powers emerged as a central tenet of eighteenth-century political philosophy. It was elaborated by Montesquieu in his work L’esprit des lois as an explanation of English political doctrine and was adopted, at least in theory and in its full rigor, by the framers of the American Constitution. The American Constitution divides governmental authority into three basic branches—the executive, the legislative, and the judicial—and vests the powers belonging to each branch in a separate body of public officers. The Court cited the principle that the Constitution embodies an essential rule, as noted in Kilbourn v. Thomson, 103 U.S. 168 at p. 190, that powers granted to one branch must be exercised exclusively by that branch and must not encroach upon the powers assigned to the others. It also referred to Cooley’s observation that “the different classes of power have been apportioned to different department; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.” The Court further identified another doctrine supporting the anti-delegation rule: the well-accepted principle of municipal law, which bars a person who has been given a power or mandate from delegating that power to another. Under this view, the legislature is a delegate that derives its authority from the people, who are the ultimate source of all power, and therefore the legislature is considered incapable of transferring its powers to any other authority. Although these doctrines are well recognised in theory, the Court observed that their practical application is limited. Quoting Justice Story, the Court stated that when one speaks of a separation of the three great departments of government and maintains that such separation is indispensable to public liberty, the maxim must be understood in a limited sense; it does not require that the departments be kept wholly separate and distinct with no connection or dependence at all, but merely that the whole power of one department not be exercised by the same hands that possess the whole power of another department, as such an exercise would undermine the principles of a free constitution.

The Court explained that the entire authority of any one of the three branches of government must not be exercised by the same individuals who possess the entire authority of either of the other branches, because allowing such concentration of power would defeat the principles of a free constitution. It then turned to the maxim delegatus non potest delegare, noting that its origin and theoretical foundation differ from those of the doctrine of separation of powers. Nevertheless, for practical purposes the two doctrines are linked together and are employed as arguments against congressional attempts to grant legislative power to another body. According to the commentary of Willis, the inability of Congress to delegate its legislative powers to the executive is said to rest on the doctrine of separation of powers, while its inability to confer authority on an independent body such as a board or commission is said to depend on the maxim delegatus non potest delegare, as cited in Willis on Constitutional Law page 136. The Court observed that, as mentioned earlier, a considerable degree of flexibility has been permitted in the practical application of these theories since the early days of constitutional development. It pointed out that the enormous complexities of modern social and economic conditions, together with the ever-increasing volume of intricate legislation required by progressive societal needs, make it practically impossible for a legislature to enact rules that are complete in every detail. Consequently, some form of delegation has become indispensable for rendering the law more effective and adaptable to the varied demands of society. The Court noted that, in the United States, despite the theoretical prohibition against delegating legislative power, a multitude of rules and regulations are routinely issued by non-legislative bodies that exercise authority conferred upon them by the legislature in one form or another. The legislature has traditionally been regarded as competent to create municipal authorities and to empower them to enact by-laws, a practice rooted in the long-standing Anglo-Saxon tradition of allowing each local community to manage its own affairs. Congress may therefore authorize a public officer to make regulations, may permit judges to frame procedural rules that bind as if they were statutes, may empower another body to determine the conditions or contingencies under which a statute becomes operative, and may empower administrative functionaries to ascertain facts and apply standards. The Court quoted Justice Cardozo’s dissent in Panama Refining Commission v. Ryan, observing that “the separation of powers between Congress and the Executive is not a doctrinaire concept to be made use of with pedantic rigour; there must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of Government which cannot foresee today the developments of tomorrow in their nearly infinite variety.” Finally, the Court remarked that the rule against delegation contains so many exceptions that a prominent writer on constitutional law, cited in Willis on Constitutional Law page 137, has succinctly expressed the difficulty of deciding whether the doctrine itself or its numerous exceptions more accurately defines the rule.

In this case, the Court noted that there is no serious dispute that the doctrine of separation of powers, when understood strictly, has no place in the system of government that India possesses today under its own Constitution, and it likewise was absent in the constitutional framework that existed during British rule. Unlike the constitutional texts of the United States and Australia, the Indian Constitution does not contain explicit provisions that assign distinct sets of powers to separate organs of the State. Under article 53(1) the executive power is expressly vested in the President, but the Constitution contains no comparable vesting clause for legislative power or for judicial power. The Indian Constitution, although federal in its structural layout, is modeled on the British parliamentary system, whose essential characteristic is that the executive is answerable to the legislature. Accordingly, the President, who is the head of the executive, is required to act on the advice of the Council of Ministers, and this Council of Ministers, in the same way as the British Cabinet, functions as a “hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part.”

The Court further observed that in the year 1912, when the Delhi Act XIII of 1912 was enacted, there could unquestionably be no claim that the executive was responsible to the legislature. At that time the executive actually dominated the legislature, and the notion of a responsible government was completely lacking. The Executive Council of the Governor-General, together with sixty additional members of whom thirty-three were nominated, formed the Governor-General’s Legislative Council, and this body possessed the authority to legislate for the entirety of British India. Provincial legislatures were constituted in a similar fashion. The first step toward a responsible government came with the Government of India Act 1919, which introduced dyarchy in the provinces. The later Government of India Act 1935 advanced provincial autonomy and established ministerial responsibility in the provinces, although certain powers remained reserved to the Governor. At the central level, responsibility remained limited; besides the discretionary powers of the Governor-General, Defence and External Affairs were kept outside the scope of ministerial and legislative control. Consequently, irrespective of the varying constitutional arrangements that existed at different periods of Indian history since the commencement of British rule, there has never been a rigid or institutional separation of powers comparable to that found in the United States.

Finally, the Court commented that the maxim “delegatus non potest delegare” is sometimes described as a rule of agency law, but its reach extends beyond the agency context. It is employed in various branches of law as a doctrine that forbids a person who has been entrusted with a duty, office, or trust from delegating those duties or powers to another. The Court held that introducing this maxim into constitutional discourse is not wholly unwarranted, although its application must be considered carefully.

The Court observed that the maxim in question was founded on a political doctrine whose reliability was doubtful. It explained that for the maxim to be applicable, the body seeking to delegate its authority must itself be a delegate of some higher authority. The Court then turned to the present-day Indian Legislature, noting that it exists as created by the Constitution of India, which both defines the Legislature’s powers and prescribes its duties, and that the Constitution is described by the Court as a gift of the people of India to themselves. Nevertheless, the Court held that it is not a sound political theory to view the Legislature merely as a delegate of the people. It pointed out that the idea, once popularised by Locke and praised by early American writers, has lost favour in modern times. Regarding the Indian Legislature as it existed during the British period under the Indian Councils Act, the Court referred to the well-known decision of the Judicial Committee in the case of Queen v. Burah (5 I.A. 178). In that decision the Judicial Committee held that the Legislature was not a delegate of the British Parliament. The case arose over the validity of section 9 of Act XXII of 1869, enacted by the Governor-General’s Legislative Council. That Act provided that certain special statutes, which excluded the jurisdiction of the High Court, would apply to the district of Garo Hills, and that section 9 authorised the Lieutenant-Governor of Bengal to extend the operation of those statutes to other areas by publishing a notification in the Calcutta Gazette. The majority of the Calcutta High Court judges upheld the respondent Burah’s contention that the Lieutenant-Governor’s authority to extend the Act exceeded the powers of the Governor-General in Council. One of the learned judges supported that view by relying, among other arguments, on the principles of agency law. The Judicial Committee, however, rejected that view. In delivering the judgment, Lord Selborne stated that the Indian Legislature possessed powers expressly limited by the Act of the Imperial Parliament that created it, and that it could not act beyond those limits. Yet, when acting within those limits, the Legislature was not an agent or delegate of the Imperial Parliament; rather, it was intended to have plenary legislative powers comparable in scope and nature to those of the Parliament itself. The Court noted that similar observations were reiterated by the Judicial Committee in Hodge v. The Queen (9 App. Cas. 117), where the Committee described the position of the provincial legislature under the Canadian Constitution and emphasised the plenitude of powers such a legislature could exercise when acting within the limits prescribed by the Imperial Parliament. Finally, the Court expressed willingness to concede that the doctrine of separation of powers does not assist in solving the problems before it.

The Court observed that the matters requiring consideration in the present case do not call for excessive reliance on the maxim delegatus non potest delegare, although, as a concise saying, it reflects a general principle that is not irrelevant to the issue at hand. Nevertheless, the Court could not concur with the broad proposition advanced by the learned Attorney-General that a legislative power, by its very nature, includes the right for the legislature to delegate the exercise of that power in any manner to another person or authority. The Court also rejected the Attorney-General’s contention that, in this respect, the authority of the Indian Legislature is plenary in the same way as that of the British Parliament and that, provided the subject-matter of legislation falls within its competence, the Indian legislature may, through an agent, do anything that it could do itself. 295. It was noted that, as far as the British Parliament is concerned, there is no constitutional limitation upon its authority or power. In the words of Sir Edward Coke, “the Power and jurisdiction of the Parliament is so transcendent and absolute that it cannot be confined, either for causes or persons, within bounds… It hath sovereign and uncontrollable authority in the making, confirming, enlarging, abrogating, repealing, reviving and expounding of laws… this being the place where its absolute despotic power… is entrusted by the constitution of these kingdoms.” The British Parliament may legislate on any subject it chooses and may alter or repeal any law it wishes; being both a legislature and a constituent assembly, it can change and modify so-called constitutional laws in the same manner as ordinary statutes, and no act of that Parliament can be held unconstitutional in a British court of law. [See Dicey’s Law of the Constitution, p. 88 (9th Edition).] 296. This sovereign character, however, could not be attributed to the Legislative Council of British India, which was created under the Indian Councils Act, even though it possessed very wide legislative powers and could within its authority pass laws of importance comparable to those passed by the British Parliament. [See Dicey’s Law of the Constitution, p. 99 (9th Edition).] The same sovereign character is absent in the present-day Indian Parliament, which is a creature of the Indian Constitution and must exercise its legislative powers within the limits laid down by that Constitution. Acting in its ordinary capacity as a legislative body, the Indian Parliament cannot go beyond the Constitution or alter any constitutional or fundamental law, and its enactments may always be subject to judicial review. The constitutional consequences of this distinction are of great importance and materially affect the question before the Court.

In this matter, the Attorney-General submitted that the power to delegate legislative authority without any limitation is inherent in the very exercise of legislative power, and he supported this view by referring to the unrestricted delegation powers historically exercised by the British Parliament. He argued that because the United Kingdom Parliament is a sovereign body capable of acting without legal restraint, the question of whether its delegation of legislative power is valid or invalid cannot be framed as a constitutional issue within that jurisdiction; no court in the United Kingdom may challenge the constitutionality of its acts. Consequently, the Attorney-General contended that the mere fact that the British Parliament enjoys unfettered delegation rights implies that such a right must be an inseparable component of legislative power itself. The Court observed, however, that in England the mere attribution of delegation authority to any department of the Parliament does not invite any legal objection, since all sovereign powers reside in Parliament and the legality of any delegation exercised by it is beyond challenge. The Court then contrasted this situation with the Indian context, noting that India operates under a written Constitution that expressly defines and limits the powers of the legislature. Under the Indian Constitution, the question of whether the power to delegate, whether limited or unlimited, forms an integral part of the legislative authority must be resolved by a proper interpretation of the constitutional text itself. The Court emphasized that it is unnecessary to rely on the American doctrine of separation of powers; instead, the focus must be on the express language of the Indian Constitution and the fundamental principles governing the law-making process that the Constitution envisions. According to the Constitution, law-making power may be exercised by the Union Parliament or by a State Legislature that is constituted in a prescribed manner, with the legislative procedure detailed in Articles 107, 111 and Articles 196 to 200. In addition, Article 123 confers certain legislative powers on the President, while Article 213 authorises the Governor of a State to promulgate Ordinances during periods when the legislature is not in session. The Constitution also contains specific provisions for the President to exercise legislative powers during a proclamation of emergency and with respect to Part D territories. The Court recognised that law-making is an activity of the highest importance and responsibility, and that the Constitution has entrusted this function to particular bodies selected in specific ways; consequently, the Constitution not only establishes a mechanism for law-making but also regulates the manner in which that power is to be exercised and provides detailed provisions for circumstances where deviation from the normal legislative procedure is permitted, establishing a prima facie framework for further analysis.

In this case, the Court observed that the Constitution was intended to place the duty of law-making chiefly in the hands of the legislative body itself. The Court noted that Parliament possessed only a limited power to grant the President legislative authority, and that such a grant, together with any further delegation of that authority, was recognised solely as an emergency measure contained in article 357 of the Constitution. Apart from this emergency provision, the Court found that the Constitution did not contain any clause that expressly authorised the legislature to delegate its legislative powers to another authority.

The Court then referred to the well-known rule of construction that a statute which directs certain acts to be performed in a specified manner or by specified persons implicitly prohibits performance in any other manner or by any other persons. The Court cited Crawford’s Statutory Construction, page 334, for this proposition. Further, the Court quoted Baker’s treatise on Fundamental Laws, volume I, page 287, emphasizing that, besides the doctrine of separation of powers, there are strong reasons why legislative power cannot be delegated. Baker argued that representative government entrusts the elected representatives with the most important public trust – the power to vote taxes and enact laws – and that these representatives must exercise wise discretion, sound judgment, and due regard for the needs of the executive, the judiciary, the taxpayer, and the general public welfare. From this, the Court held that it is self-evident that a responsible legislative assembly must exercise its own judgment. The Court also incorporated Cooley’s observation from his Constitution Law, fourth edition, page 138, that the very existence of legislative powers furnishes a reason against their delegation, because the high prerogative has been entrusted to the legislature’s own wisdom, judgment and patriotism, and any attempt to delegate that trust would be ultra vires.

Applying these principles to the historical context of the Delhi Laws Act of 1912 and the Ajmer-Merwara Act of 1947, the Court explained that the legislative bodies then exercising law-making powers were those established under the Indian Councils Act, 1861. That Act expressly vested the power to make laws and regulations in a distinct body composed of the members of the Governor-General’s Council together with additional members nominated by the Governor-General for a term of two years. The number of nominated members, originally ranging from six to twelve, was later increased by amending Acts, and under the Indian Councils Act of 1909 the total strength of the body was fixed at sixty, of which twenty-seven were elected and the remainder were nominated by the Governor-General. The Court stated that this legislative body, as constituted under the Indian Councils Act, was empowered to legislate for the entirety of British India, and therefore the same considerations against delegation applied to its exercise of law-making authority at the relevant periods.

There were also certain local legislatures operating in some of the provinces in addition to the central legislative body. Section 18 of the Indian Councils Act of 1861 gave the Governor-General authority to formulate rules governing the conduct of business at meetings of the Council that were convened for the purpose of making laws. Section 15 of the same Act specified the quorum required for such meetings and further provided that, in the absence of the Governor-General, the senior ordinary member could preside over the meeting. This framework constituted the ordinary process of law-making as set out by the Indian Councils Act.

Special provisions were incorporated to deal with exceptional circumstances in which the normal procedure could be set aside. In particular, section 23 of the 1861 Act empowered the Governor-General to issue ordinances having the force of law when urgent necessity demanded immediate action. Subsequently, under section 1 of the Indian Councils Act of 1870, the executive government was authorised to make regulations for specified parts of India, provided that the Secretary of State declared those parts to be within the scope of the section. Apart from these expressly provided exceptions, no parliamentary enactment of the period indicated that any person or authority other than the Legislative Councils identified above could exercise legislative powers.

The Ajmer-Merwara Act was enacted by the Dominion Legislature that was constituted under the Government of India Act, 1935, as adapted by the Indian Independence Act of 1937. The provisions of the Constitution Act of 1945 concerning the powers and functions of legislative bodies were essentially the same as those existing under the present Constitution, and therefore a detailed discussion of those provisions was unnecessary.

The question now for consideration was whether, assuming the foregoing position on the exercise of legislative powers, any delegation of legislative authority—however limited—could be permissible. The conclusion reached was that delegation of legislative authority could be allowed, but only as an ancillary or supportive measure to the law-making function of the proper legislature. Such delegation must not be employed by the legislature as a means of relieving itself of its own responsibility or essential duties by transferring those functions to another agent or machinery. A constitutional power may be understood to include an implied power of delegation that is necessary to achieve the purpose of that power; consequently, everything required for the effective exercise of legislation is deemed to be conferred by the Constitution within that power, as articulated by O’Connor J. in Baxter v. Ah Way (8 C.L.R. 626 at 637). However, the legislature may not abdicate its primary legislative function by vesting that essential duty in an extraneous authority.

The Court said that the essential duty of law-making must be performed by the legislature itself and that any delegation could be employed only as a secondary or ancillary measure. It noted that, apart from decisions of American courts which it would later discuss, the validity of the doctrine depended on the fundamental principles embodied in the written Constitution. Accordingly, the primary work of legislation should be carried out by the body to which the Constitution entrusts that responsibility, although that body may use an external agency or machinery to enable it to perform its functions properly and efficiently. However, the Court emphasized that the legislature could not shift the constitutional responsibility onto an agent or delegate and thereby effectively abdicate its own powers. The Court further observed that the learned Attorney-General, in support of his position, placed great reliance on the observations of the Judicial Committee in Queen v Burah [5 I.A. 178], observations which had been repeated in almost identical language in several later Judicial Committee pronouncements. The Privy Council had made those observations to dispel a misconception that, for a time, existed in some quarters—that the Indian or other colonial legislatures were merely agents or delegates of the Imperial Parliament and were thus bound to execute the Imperial mandates personally. The Privy Council clarified that this conception was incorrect. While the Indian Legislature, like any colonial parliament, could act only within the limits prescribed by the British Parliament, within those limits it was not an agent of another body and possessed plenary legislative powers of the same nature as those of the Parliament itself. The Court recorded that the majority of the judges of the Calcutta High Court, in Queen v Burah, had held that the impugned provision of Act XXII of 1869 amounted to a delegation of legislative power and that Justice Markby, in his judgment, expressly relied on the doctrine of agency. The Privy Council rejected Justice Markby’s view, stating that the majority of the High Court judges had laboured under a mistaken understanding of the nature and principles of legislation, because, in fact, no delegation of legislation had been attempted in that case. Finally, the Court concluded that the observations cited by the Attorney-General did not demonstrate that, in the Privy Council’s opinion, the Indian Legislative Council possessed the same unrestricted right to delegate legislative powers as the British Parliament; if that had been the case, there would have been no need to proceed further with the analysis.

The judgment observed that the dispute might have been resolved simply by stating that, even assuming the Indian Legislative Council had delegated any legislative authority, such delegation fell within the scope of its duly authorized powers. It was the view of the Court that the purpose of the earlier observations was to clarify the nature of the legislative authority exercised by the Indian Legislative Council. The Court explained that the Council exercised its legislative functions in its own capacity and not as an agent or delegate of the British Parliament. Consequently, if the doctrine of agency were applied, the act of an agent would be treated as the act of the principal; however, the statutes enacted by the Indian Legislature were the direct acts of that Legislature, performed within the limits of its own authority, even though the source of that authority derived from the British Parliament.

The Court cited the opinion of Rand J. of the Supreme Court of Canada, recorded in Attorney-General of Nova Scotia v. Attorney-General of Canada, (1950) 4 D.L.R. 369 at p. 945, to illustrate the principle. The quoted passage stated: “The essential quality of legislation enacted by these bodies is that it is deemed to be the law of legislatures of Canada as a self-governing political organization and not law of Imperial Parliament. It was law within the Empire and law within the Commonwealth, but it is not law as if enacted at Westminster, though its source or authority is derived from the Parliament.” The Court underscored that this reasoning demonstrated that legislation passed by a colonial legislature was the product of that legislature itself, not a mere extension of imperial authority.

Further, the Court referred to the Privy Council’s decision in Burah’s case, I.A. 178, noting that the Council was fully aware of the implications of a written constitution that assigned legislative powers to a specifically constituted legislature and expressly prohibited that legislature from exceeding the constitutional limits. After affirming that the Indian Legislature was not a delegate of the Imperial Parliament, the Privy Council declared: “The Governor-General in Council could not by any form of any enactment create in India and arm with legislative authority a new legislative power the created and authorised by the Councils Act.” This statement reinforced the principle that the Indian legislative body could not be treated as a mere instrument of the Imperial Parliament.

The judgment also mentioned analogous observations of the Judicial Committee in In re The Initiative of Referendum Act, 1919 ([1919] A.C. 935 at p. 945), and quoted Lord Haldane’s remarks on the powers of provincial legislatures under the Canadian Act of 1867. Lord Haldane observed that “Section 92 of the Act of 1867 entrusts the legislative power in a province to its legislature and to that legislature only… No doubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by the provincial legislature in Canada could, while preserving its own capacity intact, seek assistance of subordinate agencies as had been done when…”. This citation illustrated the distinction between a legislature seeking subordinate assistance in rule-making and a legislature transferring its essential legislative function to another body, a transfer that the constitution would not permit.

In the decision of Hodge v. Queen, reported in the Appeals Cases at page 117, the Court observed that the legislature of Ontario was authorized to delegate to a Board of Commissioners the power to make regulations concerning taverns. The Court made clear, however, that this delegation does not grant the legislature the authority to invent a completely new legislative power that operates independently of the statute that gives the legislature its existence. The judgment emphasizes that delegating regulatory authority does not permit the creation of an autonomous legislative function that lies outside the framework of the enabling Act.

The judgment further explains that the observations cited do not imply that a legislative body must surrender all of its powers to an external authority that is not recognised by the constitution. Such a complete surrender would be an extreme scenario that falls outside practical considerations. Lord Haldane’s remarks, as quoted earlier, draw a distinction between two different kinds of assistance: first, the assistance of a subordinate agency in drafting rules and regulations that become part of the law, and second, the transfer of the essential legislative function, which the constitution reserves for the legislature itself, to another body. The term “abdication” is therefore misleading. It is not necessary for a legislature to extinguish itself entirely or to remove itself from the constitutional text in order to transfer all its rights. What the Court describes as abdication is the relinquishment of essential legislative authority over a specific subject matter to a person or authority that lacks constitutional empowerment to perform that function. The Court then proceeds to outline the limits of permissible delegation in law-making, referring to decisions from the highest courts of the United States, Canada, and Australia, as well as rulings of the Judicial Committee on appeals from India and other colonies. Although these authorities reflect diverse legal traditions and no single uniform rule emerges, none of them bind this Court, and it is free to adopt the view that appears most sound in principle and based on solid legal reasoning. Broadly, the matter of delegated legislation has been examined by courts in two main categories. The first category involves “conditional legislation,” where the delegation relates not to a general legislative function but to the determination of a specific contingency or event that triggers the operation of the legislative provisions.

The Court explained that delegated legislation fell into two distinct categories. The first category, referred to as conditional legislation, involved a situation where the legislative enactment was complete when it left the legislature, but its operation depended upon the occurrence of a specified contingency or event. In such cases, the legislature delegated to an external body merely the authority to determine, by exercising its own judgment, whether the condition had been satisfied. The Court cited the observation of O’Connor J. in Baxter v. Ah Way [8 C.L.R. 626 at 637] that the purpose of legislation was to anticipate future circumstances and to phrase the law in as general terms as possible for all likely contingencies. Because it was impossible to foresee every specific case, legislation from early times and especially in modern practice had taken the form of conditional legislation, leaving it to a designated authority to decide the circumstances in which the law would apply, the class of persons or things to which it would extend, or the extent of its operation. Despite the doctrine of separation of powers, the Court noted that this form of legislation was widely accepted in American legislative practice and was not regarded as violating the anti-delegation rule. It quoted a leading Pennsylvania decision, Locke’s Appeal, 72 Pa. 491, which stated that while the legislature could not delegate its law-making power, it could enact a law that delegated the power to determine a fact or state of affairs upon which the law’s operation depended, because many necessary determinations lay beyond the legislature’s knowledge and required outside inquiry. The Court then turned to the second category, proper delegation, where a portion of legislative power was expressly transferred by the legislature to a subordinate agent or authority. To illustrate the first category, the Court referred to the early Judicial Committee decision in Queen v. Burah [5 I.A. 178], where the Lieutenant-Governor of Bengal was authorised to extend any or all provisions of a statute to certain districts at a time of his choosing, by publishing a notification in the official gazette. No legislative act was performed by the Lieutenant-Governor himself. The Judicial Committee observed that “The proper legislature has exercised its judgment as to place, persons, laws, powers, and the result of that judgment has been to legislate conditionally as to those things. The conditions being fulfilled, the legislation is now absolute.”

The Judicial Committee previously observed that when the stipulated condition is satisfied, “the legislation is now absolute.” Four years after that pronouncement, the Committee examined the case of Russell v. The Queen [7 App. Cas. 829]. The dispute concerned the Canadian Temperance Act of 1878, which provided that its prohibitory and penal provisions would operate in any city or country only if a majority of the electors in that locality voted in favour of such measures and, thereafter, the Governor-General, by Order in Council, declared the relevant part of the Act to be in force. One argument presented to the Committee claimed that this provision was void because it allegedly delegated legislative authority to the majority of voters in the city or country. The Privy Council rejected that contention and expressly relied on the earlier decision in Queen v. Burah [5 I.A. 178]. The Committee explained that “the short answer to this question is that the Act does not delegate any legislative powers whatsoever. It contains within itself the whole legislation on the matter with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer authority or power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient and is certainly not unusual and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency.”

The same principle was applied by the Judicial Committee in King v. Benoari Lal Sarma [72 I.A. 57]. In that matter an emergency ordinance issued by the Governor-General of India was challenged, among other grounds, because it authorised the establishment of special criminal courts for particular offences while leaving the actual creation of those courts to the Provincial Governments, which could set them up at such time and place as they deemed appropriate. The Committee held that “this is not delegated legislation at all. It is merely an example of the not uncommon legislative power by which the local application of the provisions of a statute is determined by the judgment of a local administrative body as to its necessity.” Consequently, judicial pronouncements have consistently treated conditional legislation as a distinct category, not as a form of delegated legislation. When all the elements of a conditional law are present, the question of whether delegating the determination of the condition to an external authority exceeds the legislature’s powers does not arise.

In this passage, the Court explained that the legislature sometimes gave a subordinate authority the power to make rules and regulations, and that those rules formed an integral part of the statute itself. The Court observed that Parliament or any competent legislative body possessed the authority, within its legislative field, to confer such administrative and legislative powers on another entity. The Court then asked what limits applied to the conferment of these powers. The learned Attorney-General admitted that the legislature could not completely abandon its functions by investing another authority with all of its legislative powers. The Court noted that subordinate legislation must remain under the control of the legislature that created it, and that its continued existence depended on that control. Referring to the judgment of Dixton J. in Victoria Stevedoring and General Contracting Company v. Dignan, the Court quoted that “a subordinate legislation cannot have the independent and unqualified authority which is an attribute of true legislative power.” The Court pointed out that this doctrine produced several legal consequences: an offence against subordinate legislation was treated as an offence against the principal statute, and the regulations would automatically cease if the statute were repealed. The Court accepted that these propositions were not in dispute. According to the Attorney-General, the only requirement for subordinate legislation was that the legislature should not completely abdicate its powers and should retain the ability to control the subordinate agency and to revoke it at any time. The Court observed that if this condition were satisfied, the character or extent of the powers delegated to the subordinate agent would be immaterial, and the courts would have no jurisdiction to examine it. While recognizing that this argument appeared plausible, the Court expressed that, upon closer scrutiny, it could not be accepted as sound. In the Court’s view, merely retaining the power to recall the subordinate agent was insufficient to justify granting it legislative powers over a particular subject. The Court explained that subordinate legislation signified not only the dependent nature of the agency but also the ancillary character of the legislation it produced. Consequently, if the legislature transferred its essential legislative powers to an outside authority, the Court considered that to be a virtual abdication of legislative power, exceeding the permissible limits of delegation. The Court further defined the essential legislative function as the determination of legislative policy and the formal enactment of that policy into a binding rule of conduct. It emphasized that the legislature was free to formulate the policy broadly and in as much detail as it deemed appropriate, delegating the remaining legislative work to a subordinate authority to work out the details within the framework of that policy.

The Court explained that the legislature could prescribe as little or as much detail as it deemed appropriate and could consequently delegate the remaining legislative tasks to a subordinate authority, which would then work out the specifics within the parameters of the established policy. It further observed that, provided a policy is articulated and a statutory standard is set, no constitutional delegation of legislative power occurs when the legislature entrusts selected instrumentalities with the creation of subordinate rules, as long as those rules stay within prescribed limits and the facts to which the legislation applies are determined accordingly. This principle was illustrated by reference to Schechter Poultry Corp. v. United States, 295 U.S. 495.

The Court then turned to the jurisprudence of the United States Supreme Court, noting that it had repeatedly held that the policy of the law-making body and the standards intended to guide an administrative agency may be framed in very broad and general terms. According to the Court, it is sufficient for the legislature to lay down an intelligible principle that subordinate authorities can implement for particular cases or classes of cases, as articulated in J.W. Hampton v. United States, 276 U.S. 394. The Court stressed that it has been extremely reluctant to find a violation of this principle, and that only two decisions—Panama Refining Co. v. Ryan, 293 U.S. 388, and Schechter Poultry Corp. v. United States, 295 U.S. 495—have declared federal legislation invalid for failing to provide a sufficiently definite standard to guide administrative discretion. In Panama Refining Co. v. Ryan, Chief Justice Hughes stated unequivocally that Congress is not permitted to abdicate or transfer essential legislative functions to others. He added that the courts have consistently recognized limits on delegation that the Constitution does not allow to be exceeded. The Court found that Section 9(c) of the statute surpassed those limits because Congress had offered no policy, established no standard, and set no rule regarding the transportation of oil produced beyond state permission, leaving no definition of the circumstances under which transportation could be allowed or prohibited. Justice Cardozo, however, dissented from the majority, holding that an express or implied reference to congressional policy in Section 1 provided a sufficient definition of a standard to render the statute valid. He famously remarked that discretion “is not unconfined and vagrant” but “is confined within banks that keep it from overflowing.” The Court later observed in Schechter Poultry Corp. that the delegation of legislative power in Section 3 of the National Industrial Recovery Act of 1933 was unconstitutional because the legislature had failed to set a definite standard, and Justice Cardozo concurred with the majority, concluding that the delegated legislative power was not confined within the metaphorical banks but was instead unbounded.

The learned Judge observed that the delegation at issue in the present matter was not confined to any single act nor to any identifiable class or group of acts defined by reference to a standard. He described the delegation as “running riot” and characterized it as an attempted transfer of power that was unconfined and vagrant. He further emphasized that such a plenitude of powers could not be transferred because the delegation lacked any limiting framework or identifiable standard. The Judge noted that, to date, only two cases have resulted in statutes of Congress being held invalid on the ground that they delegated essential legislative powers. In subsequent decisions, the Court has consistently found that Congress had established a standard that was sufficiently definite to satisfy the constitutional prohibition against unlawful delegation. In each of those later cases, the Court adopted a highly liberal construction of the legislative enactment, as illustrated by the authorities cited, including the decisions in Cotton Mills v. Administrator of Wages, Yakus v. United States, and American Pr. & Lt. Co. v. Securities and Exchange Commission. The Court clarified that it was not concerned with the specific outcomes of those cases; rather, its interest lay in the principles they articulated. The principle repeatedly affirmed was that the legislature cannot relinquish its essential legislative function, which consists of declaring policy and fashioning it into a binding rule of conduct. To surrender this essential function would amount to an abdication of legislative authority under the law.

The Court explained that a policy may be articulated in as few words as the legislature deems appropriate, provided that it offers intelligible guidance to the subordinate authority charged with implementation. Judicial intervention is warranted only when no discernible policy exists or when the delegation is so indefinite that it effectively amounts to an abdication of legislative power. However, because the discretion to determine the necessity of delegation resides with the legislature, the Court held that such legislative discretion should not be disturbed except in clear cases of abuse. These observations were presented as fundamental principles governing legislative power. The Court further observed that India’s constitutional arrangement regarding legislative powers more closely resembles the American model than the English one. Unlike the British Parliament, which is not constitutionally restrained from assigning any of its powers, the Indian Parliament operates under a written Constitution that limits its sovereign authority. Consequently, the scope of permissible delegation in India must be interpreted from the Constitution itself, and any implied right of delegation exists only to the extent necessary to make the exercise of legislative power effective and complete.

The Court cited Schwartz’s commentary in his work on American Administrative Law, observing that the doctrines he described are intended to keep the expansion of executive power, driven by the growth of the administrative process, within manageable limits. According to Schwartz, any delegation of legislative authority must be confined either by the legislature’s determination of the purposes and means, or by explicit limitations on the scope of the delegated power. In other words, the enabling statute must provide a framework that guides and restricts executive action. The Court noted that the Committee on Ministers’ Power had produced a report recommending a principle closely resembling the American approach as a suitable check on delegated legislation. The report stated that the precise limits of any law-making power that Parliament intends to confer on a Minister should be expressed in clear language within the conferring statute, and that when discretion is granted its boundaries should be defined with equal clarity, as set out on page 65 of the Report. The Court remarked that in the United States the issue is treated as a question of legal authority subject to judicial review, whereas in the United Kingdom it is regarded as a matter of policy with purely political significance. Nevertheless, the Committee’s recommendation, the Court said, demonstrates that the rules developed by American judges in later years rest on clear and sound democratic principles. Turning to the common-law jurisdictions of Canada and Australia, the Court indicated that it would examine leading cases from those countries to determine the extent to which they support the principles previously outlined. Many of the Canadian decisions, the Court added, had been appealed to the Judicial Committee. The Court then began its discussion with the Canadian case of Hodge v. The Queen, reported in the 9th volume of the Appeal Cases at page 117, which had been brought before the Judicial Committee on appeal from the Court of Appeal for Ontario in 1883. The factual background was straightforward: the appellant had been convicted for allowing a billiard table to be used and for a game of billiards to be played in contravention of a resolution issued by the License Commissioners. Those Commissioners derived their authority from the Liquor License Act of 1877, which empowered them to make regulations governing the use of taverns, to create offences and to impose penalties. A key issue in the case was whether the Ontario Legislature could delegate to the License Commissioners the power to enact regulations that effectively created new offences. The Privy Council, agreeing with the Ontario High Court, held that the Ontario Legislature was not acting as a delegate of the Imperial Parliament but was exercising its full legislative authority. Consequently, it was free to entrust a municipal body of its own creation with the power to make bylaws or resolutions on matters specified in the enactment, with the purpose of giving effect to the legislation. The Council observed that such authority is ancillary to legislation, noting the extensive body of precedent in which legislatures have entrusted limited discretionary powers to others for reasons of necessity and convenience.

In this passage the Court observed that the authority delegated to the License Commissioners by the Ontario Legislature was described as ancillary to legislation. The Court noted that the extensive judgment of the Court of Appeal contained many precedents showing that a legislature could entrust a limited discretionary power to other bodies and that such delegation was both necessary and convenient. The Court pointed out that the delegation made by the Ontario Legislature to the License Commissioners consisted merely of the power to regulate tavern licences, and that no substantial legislative powers were surrendered. While the Privy Council had affirmed that the Ontario Legislature was supreme within its own sphere and possessed authority comparable to that of the Imperial or Dominion Parliament, it nevertheless characterized the delegated power as ancillary to legislation and cited an “abundance of precedents for the legislature entrusting a limited discretionary authority to others.” The Court considered that the Privy Council need not have employed such guarded language if the Ontario Legislature truly enjoyed the same full right of delegation as the British Parliament. It was noted that the counsel appearing for the Crown, identified as Davey, Q. C., did not argue before the Privy Council that the Ontario Legislature possessed unrestricted delegatory powers akin to those of the British Parliament, nor did he maintain that its enactments could not be challenged as unconstitutional. Instead, his submission was that the case did not involve any delegation of legislative authority, because what had been delegated was only the power to make bylaws. By “legislative authority” the learned counsel apparently meant the core legislative function, distinct from the power to make rules and regulations, and he implied that essential legislative powers could not be delegated at all. The Court then turned to the case of Powell v. Appollo Candle Co., reported in 10 App. Cas. 232, as a further illustration relevant to the issue. That matter arose on appeal from a decision of the Supreme Court of New South Wales and raised the question of whether section 133 of the Customs Regulation Act of 1879 of the Colony was ultra vires the Colonial legislature. The challenge to the statute’s validity was, among other grounds, that it authorized the Government to levy duty on certain articles that, in the Collector’s view, were substitutes for other dutiable items. The pivotal question was whether such a power could be validly conferred. The Privy Council held without difficulty that the provision was perfectly valid and that it fell within the competence of the Colonial legislature, which was not a delegate of the Imperial Parliament, to grant the executive a discretionary power of this nature for the purpose of giving effective operation to the statute. The Court emphasized that the policy of the law and its principal principles were set out in the Act itself, leaving the executive only with the authority to enforce the Act’s provisions more effectively.

The Court observed that the legislature had prescribed a clear standard for articles that could serve purposes comparable to those of the dutiable articles enumerated in the statute, and that this standard was sufficiently definite to direct the actions of executive officers. Turning next to Canadian jurisprudence, the Court examined the decision of the Supreme Court of Canada in In re Gray (57 C.C.R. 150), a case decided during the First World War. The Dominion War Measures Act of 1914, enacted by the Dominion Parliament, authorized the Governor-General to make “such regulations as he may, by reason of the existence of real or apprehended war…deem necessary or advisable for the security, defence, peace, order and welfare of Canada.” The legal issue presented was whether the transfer of such regulatory power was permissible under the British North America Act. By a vote of four to two, the Supreme Court held the Act to be valid, although the judges in the majority were not unanimous in their reasoning. The Chief Justice asserted that the Constitutional Act contained no provision that, for the matter before the Court, limited the authority of the Canadian Parliament in a manner that the Imperial Parliament itself was not subject to. Justice Anglin, referring to the earlier decision in Hodge v. The Queen (9 App. Cas. 117), expressed the view that the British North America Act did not envisage an absolute surrender of legislative powers by the Dominion Parliament; he regarded such a surrender as so inconceivable that any constitutional challenge to it lay beyond practical consideration, thereby giving the term “abdication” a very narrow construction. Justice Duff echoed this opinion, holding that the alleged abandonment of legislative powers was not permanent because the powers conferred could be withdrawn at any time and any acts performed under them could be nullified by Parliament. Justices Idington and Brodeur dissented from the majority, rejecting the view that the transfer of power was constitutionally permissible.

The Court noted that the ruling in In re Gray was subsequently applied in the reference titled “Reference is the Matter of the Validity of the Regulations in Relation to Chemicals Enacted by the Governor-General of Canada under the War Measures Act,” reported in 1943 S.C.C. 1. In that reference, the issue was the validity of certain regulations issued by an Order in Council pursuant to the powers granted to the Governor in Council by both the War Measures Act and the Department of Munitions and Supply Act. The Court held that, with the exception of paragraph 4 of the Order in Council, the remaining provisions of the Order were not ultra vires. The judgment indicated that the court was not confronted with any dispute regarding the legislature’s ability to delegate authority to the Governor in Council under the War Measures Act. The remaining question before the Court was whether the Governor in Council could, in turn, further delegate the powers it had received to subordinate agencies, a point that the Court examined in the context of the statutory scheme and the wartime exigencies that underpinned the legislation.

The Court answered the question affirmatively, holding that delegation of authority was absolutely essential to the operation of the War Measures Act and therefore had to be regarded as part of the powers that Parliament itself conferred by the statute. The Court observed that the decisions involved were wartime decisions and that, in the Chemical Reference case, the doctrine of delegation had been extended excessively. Referring to In re Gray, 57 S.C.R. 150, the learned Chief Justice had previously declared that the security of the country was the supreme law against which no other law could prevail. The Court agreed with the Attorney-General that Parliament’s competence to legislate could not be made contingent upon whether the legislation was enacted in wartime or peacetime. Nevertheless, the Court noted that one could also argue that, when Parliament passes legislation during war and the nation’s liberty and security are threatened, the only realistic policy is to ensure the effective conduct of the war, which necessarily entails vesting all war-related operations in the executive. The Court found considerable support in the observations of Dixon J, as quoted in Victoria Stevedoring and General Contracting Co. v. Dignan, 46 C.L.R. 73 at p. 99, where it was stated that the exigencies of defence powers are so numerous, urgent and properly within the executive’s domain that the power, by its very nature, must be understood to allow delegation that would otherwise be prohibited. The Court also mentioned that the decision in In re Gray was later distinguished in Credit Froncier v. Ross, (1937) 3 D.L.R. 365, on the ground that, in emergencies, legislation of this kind could be enacted by invoking the residuary powers conferred on the Dominion Parliament by section 91 of the North America Act.

Subsequently, the Court turned to In re The Initiative and Referendum Act, [1919] A.C. 935, which followed immediately after In re Gray. The dispute in that case concerned an Act passed by the Legislative Assembly of Manitoba that authorized laws to be made and repealed by a direct vote of the province’s electors as a whole. The Privy Council held the Act to be ultra vires, chiefly because it would compel the Lieutenant-Governor to submit a proposed law to a body of voters wholly separate from the legislature over which he is the constitutional head, thereby rendering him powerless to prevent the proposal from becoming law if approved by the electorate.

Near the conclusion of the judgment, Lord Haldane reiterated an observation that had already been cited, and this remark clarified the stance of the Judicial Committee. The Committee held that while the Provincial Legislature in Canada could solicit the assistance of subordinate agencies to aid in the preparation of regulations, this allowance did not permit the Legislature to invent or grant a new legislative authority that had not been created by the primary Act establishing its existence. The observation thereby made it unmistakably clear that, in a jurisdiction such as Canada that operates under a written constitution, the legislature, notwithstanding its generally plenary powers, was not entitled to bestow unlimited legislative competence upon other bodies. The legislature could, however, engage subordinate agencies for the purpose of drafting detailed regulations that would give effect to the primary legislation, without converting those agencies into independent law-making entities.

The subsequent case that required attention was Credit Froncier v. Ross, reported in 1937 3 D.L.R. 365. The dispute in that case concerned the validity of section 12 of the Alberta Reduction and Settlement of Debts Act. The section was challenged on the ground that it authorised the Lieutenant-Governor to declare periodically that any particular category of debt would be exempt from the operation of the Act. The Court of Appeal declared the provision ultra vires, holding that it amounted to an impermissible delegation of legislative authority to the Lieutenant-Governor. After quoting a passage from the Privy Council’s decision in Hodge v. The Queen, Chief Justice Harvey observed: “It is apparent that the authority to make regulations in order to make legislation enacted by the legislature completely effective is quite a different thing from authority to make an independent enactment. This is not ancillary to legislation but is legislation itself.” Turning to the earlier decision in In re Gray, the judge added: “It is urged that the decision of the Supreme 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 case of emergency and urgency. It was a war measure 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 upon the Dominion Parliament may be resorted to. This is neither a wartime measure nor is it Dominion legislation. So, the case cited would appear to have no application.” The judgment thereby confirmed that, although the power granted to the Lieutenant-Governor could be withdrawn at any time, the delegation in the present case was nevertheless held to be invalid. The only other Canadian decision relevant to this point was Re Natural Products Marketing Act, 1937 (1937 4 D.L.R. 298).

In the case concerning the Natural Products Marketing Act, the legislation was enacted by the legislature of British Columbia and it granted the Lieutenant-Governor in Council the authority to create marketing boards that would control and regulate the transportation, packing and marketing of natural products within the province. The Act was described as a skeleton statute that was fashioned after a comparable English law, leaving the Lieutenant-Governor the task of furnishing detailed rules. The provincial judge, Manson J, held that the provision at issue exceeded the powers of the legislature and was ultra vires; however, his decision was reversed by the Court of Appeal. The appeal argued that the legislature had illegally delegated its function to the Lieutenant-Governor in Council because it had passed only a skeletal framework and thereby abdicated its legislative responsibility. The appellate court rejected this submission, with the Chief Justice, Martin C.J., observing that the answer depended on the wording of the statute and that, after reading the entire Act, it did not support the contention of an unlawful delegation. Consequently, the court concluded that there was no surrender of genuine legislative power; the Lieutenant-Governor in Council was merely empowered to issue rules and regulations that conformed to the standards and policy expressly set out in the Act, thereby completing the law in all its aspects. An appeal from this judgment was taken to the Judicial Committee of the Privy Council, cited as Shannon v. Lower Mainland Dairy Products Board. The Privy Council dismissed the appeal, endorsing the reasoning of Martin C.J. It affirmed that, within its lawful sphere, the provincial legislature possessed a supremacy comparable to that of any other parliament and that it was unnecessary to catalogue the many instances in which provincial, Dominion or Imperial legislatures have entrusted analogous powers to designated persons or bodies. While the Committee reiterated its earlier pronouncement on the supremacy of the Dominion Parliament, its decision essentially rested on the Court of Appeal’s analysis. The ultimate inference was that, although a general rule barred the grant of essential legislative power to another entity, that rule was not breached in the present circumstance.

The discussion then turned to two decisions of the High Court of Australia, the first being Baxter v. Ah Way. That case examined certain provisions of the Customs Act of 1901, which expressly prohibited the importation of specified goods and authorised the Governor-General in Council, by proclamation, to add further goods to the prohibited list. The Court held that, although the prohibition of imports represented a legislative act, the power conferred on the Governor-General in Council did not amount to a delegation of legislative authority. Instead, the power was characterised as a form of conditional legislation, permitting the executive to expand the prohibited categories under conditions set by the statute rather than granting an independent legislative competence.

The Chief Justice stated that if the legislature does not wish to fix permanently a complete list of prohibited goods, it must retain the authority to impose prohibitions based on a condition. He explained that such a condition could be triggered by the emergence of a new fact or by the discovery of an existing fact. He further observed that determining whether the condition has been satisfied could appropriately be assigned to an external body. The Court noted that, in the present case, the legislation failed to satisfy the requirements of a valid conditional enactment. Instead of specifying a condition that would activate the statutory scheme, the statute authorized the executive to expand the list of prohibited imports at its own discretion. Consequently, the executive was not limited to acting only when a particular contingency occurred, but could add items to the prohibited list based on judgment alone. Nevertheless, the Court indicated that the decision could still be justified under the doctrine of subordinate legislation previously discussed. The legislation did set out a clear policy and identified a standard by enumerating certain specific articles. The executive officer’s role was merely to apply that same standard when adding further goods to the prohibited list.

The Court then examined the case of Victoria Stevedoring and General Contracting Company v. Dignan, reported in volume 46 C.L.R. page 73. The dispute concerned the validity of section three of the Transport Workers Act, 1928-29, which purported to give the Governor-General authority to make regulations concerning transport workers. The regulations were to be consistent with the Act and to cover matters such as the engagement, service, discharge, licensing and other aspects of transport workers’ employment. The High Court held that the Commonwealth Parliament possessed the legislative power to delegate to the Governor-General the authority to make such regulations. The Court found no error in this conclusion because the delegated power was limited to regulations that did not conflict with the Act and dealt only with matters expressly described therein. The Court emphasized that the Governor-General’s broad discretion in formulating industrial policy was irrelevant, provided the regulations remained within the policy framework set by the legislature. The decision relied on the precedent established in Roche v. Kronheimer, reported in volume 29 C.L.R. page 329. Although the judges expressed diverse observations, they unanimously agreed that earlier authorities settled the issue. The Chief Justice and Justice Starke expressed the view that no true legislative power had been delegated. Even if some delegation existed, no constitutional prohibition applied because the Australian Commonwealth does not rigidly enforce separation of powers except with respect to the judiciary. The judges also referenced other authorities in the course of their judgment.

In discussing the authority for delegating legislative power, the Court examined the case of Baxter v. Ah Way, reported in the eighth volume of the Commonwealth Law Reports at page 626, noting that judgment was based on a principle distinct from the one currently under consideration. Justice Rich, however, treated the earlier decision Roche v. Kronheimer, reported in the twenty-ninth volume of the Commonwealth Law Reports at page 329, as establishing that a subordinate law-making power could be vested in the executive branch.

Justice Dixon addressed the doctrine of separation of powers and also considered the maxim “delegates non potest delegare.” He explained the doctrine in detail and concluded that the delegation of legislative authority to the executive was permissible. Nevertheless, he did not identify any specific limits within which such delegated power must operate. The learned judge further observed that a law granting authority to the executive does not become valid merely because the subject-matter is broad or vague, provided it remains within the bounds of Federal power. He warned that if the subject-matter is so wide or uncertain that the enactment cannot be said to relate to any particular head or heads of legislative power, then the enactment would fail to qualify as a law.

Justice Evatt expressed doubt about whether a power to make law on a specific item listed in the legislative schedule automatically includes the power to delegate legislative authority over the same item. He referred to section 51(1) of the Constitution, stating that this provision grants the Commonwealth Parliament the power to regulate inter-state trade and commerce, but that the grant itself can be characterized only as a law concerning inter-state trade and commerce. He further observed that the broader the law-making power conferred, the less likely it is that the enactment will qualify as a law with respect to any subject matter assigned to the Commonwealth Parliament.

The Court noted that the various judgments did not yield a single, uniform principle. Yet the Court affirmed that the ultimate decision could be supported by the principle it had formulated. In the Court’s view, apart from a few exceptions, the decisions of the courts cited earlier provide considerable support for the position adopted. The exceptions concern cases in which statutes such as the Was Measures Acts upheld the delegation of almost unlimited legislative powers to the executive, decisions that have been justified on exceptional grounds.

Finally, the Court held that there is no need to adopt a strained interpretation of law in the Indian context. The Constitution of India contains explicit provisions to address emergencies of war and other extraordinary situations. Under Article 357, the President may, after a proclamation of emergency, be empowered to make law and may also delegate such powers to subordinate officers. After reviewing all the authorities, the Court expressed no hesitation in affirming this conclusion.

In this matter, the Court observed that the Indian Legislature could not occupy the same position as the historic British Parliament with respect to the constitution of delegated legislative authority, and that the permissible scope of delegation had to be determined in India by construing the express provisions of the Constitution. The Court stated that the Constitution did not imply an unlimited power of delegation inherent in the legislative prerogative. Rather, the legitimacy of any delegation depended entirely on its use as an ancillary measure that the legislature deemed necessary to enable it to exercise its legislative powers effectively and completely. Accordingly, the legislature was required to retain the essential legislative functions, namely the articulation of legislative policy and the setting of standards that would be transformed into law, while any delegation could be limited to the subsidiary task of creating subordinate legislation, which by its nature was ancillary to the primary statute that conferred the power. The Court further held that, provided the legislative policy was expressed with sufficient clarity or a standard was laid down, the courts could not and should not interfere with the discretion that inevitably rested with the legislature in determining the extent of delegation needed in a particular case. These, the Court said, constituted the constitutional limits within which delegated legislation was permissible, subject of course to the condition that the legislature was competent to legislate on the specific subject-matter. It was on the basis of these principles that the Court proposed to examine the constitutional validity of the three legislative provisions referred to in the reference.

The Court then turned to section 7 of the Delhi Laws Act and first considered whether the subject-matter of that provision fell within the competence of the Governor-General’s Legislative Council as it existed in 1912 under the Indian Councils Acts from which its authority derived. The Court noted that Delhi, which had formed part of the Punjab Province, was detached by a notification dated 17 September 1912 and was thereafter treated as a separate Imperial enclave governed as a distinct province. The area was placed under a Chief Commissioner, and the existing laws were continued by operation of section 2 of the Delhi Laws Act. Section 7, in its original form, read: “The Governor-General in Council may by notification in the gazette of India extend, with such restriction and modifications as he thinks fit, to the territory mentioned in Schedule A or any part thereof any enactment which is in force in any part of British India as the date of such notification.” The Court explained that the powers of the Governor-General in Council were exercised by the Provincial Government, which in the case of a Chief Commissioner’s Province meant the Central Government, and that the words “Province of Delhi” had been substituted for the expression “territory mentioned in Schedule A,” which was the description of the Delhi Province at that time.

The Court observed that the description of the Delhi Province at that time meant that the provision gave the Governor-General in Council the authority to select, from among the statutes that were then actually in force in any other part of British India, any enactment that it considered suitable, and to extend that enactment to the Province of Delhi, or to any part thereof, with such restrictions and modifications as it thought appropriate. The Court noted that in 1912 the Government of India operated as a unitary authority; there was no separation of powers between a central legislature and provincial legislatures, nor any list enumerating the subjects on which legislation could be made. Section 22 of the Indian Councils Act 1861, the Court explained, provided that “the Governor-General in Council shall have power at meetings for the purpose of making laws and regulations … to make laws and regulations for repealing, amending, or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territories now under the Dominion of Her Majesty, and to make laws and regulations for all persons, whether British or native, foreigners or others for all courts of justice whatever, and for all places and things whatever within the said territories.” The Court acknowledged that a number of provisos attached to the exercise of these powers, but it held that those conditions were not material to the issue before it. Consequently, the Court concluded that the legislative powers conferred on the Governor-General’s Legislative Council were expressed in the broadest possible terms, and because no specific subject-matter was singled out, the legislature could enact laws touching any person, place or thing within the Indian territory. The Delhi Laws Act, the Court said, clearly related to a particular geographic area – the Province of Delhi – and affected persons who were residents of that area; regarding its subject-matter, it therefore encompassed everything that formed the subject-matter of any enactment in force in British India at the time a notification under section 7 was issued. In light of the language of section 22 of the 1861 Act and the virtually unlimited powers granted to the Governor-General’s Legislative Council, the Court found that it was impossible to say that the legislature was incompetent to legislate on the matter. Referring to the Judicial Committee’s decision in Queen v. Burah [5 I.A. 178 at p. 194], the Court stated that what had been done amounted to legislation within the scope of the affirmative words used by the constitutional instrument that conferred the power and that it violated no express condition or restriction limiting that power. The Court then turned to the question of whether there had been an undue delegation of legislative authority to the executive government. It observed that if a competent legislature had enacted a statute and then left it to an external authority to extend the whole or any part of that statute, by notification, to a particular area, such a scheme would constitute conditional legislation as previously discussed.

It was observed that no issue of delegation would actually arise in the situation described. The circumstance would not change in any material way if, rather than drafting a new statute, the legislature had identified one or more existing statutes or had attached them to the Act by means of a schedule, and then had granted a subordinate or administrative agency the authority to enforce any one of those statutes at any time it chose in a particular area. In the writer’s view, even under those facts the proper legislature would already have exercised its judgment, and the subordinate agency would merely be tasked with determining the condition under which the already-made provisions could become operative in a specific locality. The real difficulty in applying the doctrine of conditional legislation to the case before the Court stemmed from two distinct facts.

First, the Central Government was empowered not only to extend to the Province of Delhi any enactment that was in force at the time the Delhi Laws Act was passed, but also to extend any law that might be enacted in the future, even though at the time of the Act’s passage the legislature could not possibly have contemplated such future legislation. Second, the Central Government was given the authority not merely to extend either the whole or a part of the provisions of any enactment that was in force elsewhere in India to the Province of Delhi, but also to introduce those provisions with any modifications or restrictions that it deemed appropriate. The question therefore arose as to whether these powers amounted to a surrender of the essential legislative authority by the legislature. While the point was not entirely free from difficulty, upon careful consideration the writer was inclined to answer the question in the negative. As previously noted, essential legislative power consists in formulating a legislative policy and enacting it as a binding rule of law. The merits of that policy are not a matter for the courts; it is sufficient that the policy be defined with enough precision and clear definitions to give adequate guidance to the executive officer charged with implementing it. Where there is no vagueness or indefiniteness in the policy’s formulation, the court has no role to play. The policy underlying the Delhi Laws, the writer explained, appears to have been that a newly created and relatively small province such as Delhi, which lacked its own local legislature and was not considered large or important enough to warrant one in the near future, should have the laws validly passed and in force in other parts of India applied to it, subject to any restrictions or modifications necessary to make those laws suitable to local conditions. Accordingly, the legislative body deemed it appropriate that the power to select suitable existing statutes for application to the Province of Delhi should rest with the Governor-General in Council, which was regarded as the most competent authority to assess the province’s needs.

In this case, the Court explained that the authority to choose which statutes from the existing body of law could be applied to the Province of Delhi was placed with the Governor-General in Council. The Court observed that the Governor-General in Council was considered the most competent body to assess the needs and requirements of the Province. It further noted that this policy was evident from several earlier legislative enactments that had been passed before 1912. Those earlier enactments showed that, in territories that were backward, newly acquired, or of very small size, the legislature preferred to avoid establishing a full regular legislative machinery at once. Instead, the legislature adopted a practice of allowing a central authority to extend suitable existing laws to such areas. The Court cited Act XXII of 1869 as one of the earliest examples of this type of legislation.

Act XXII of 1869, which had been the subject of a controversy before the Judicial Committee in the case Queen v. Burah [5 I.A. 178], was enacted by the Governor-General’s Legislative Council. Section 4 of that Act aimed to remove the district known as Garo Hills, inhabited by aboriginal tribes, from the jurisdiction of the Courts of Civil and Criminal Judicature and from the control of revenue offices created under the Bengal Code and other statutes then in force in British India. Section 5 provided that the administration of civil and criminal justice in that territory would be vested in officers appointed by the Lieutenant-Governor of Bengal from time to time. Section 8, which is material to the present discussion, authorized the Lieutenant-Governor “by notification in the Calcutta Gazette” to extend to the territory any law, or any portion of any law, that was then in force in other territories under his Government, or any law that might later be enacted by the Council of the Governor-General, or by the Lieutenant-Governor himself for making laws and regulations, and to specify who would exercise any powers or duties arising from the extended provisions. Section 9 further enabled the Lieutenant-Governor to extend those provisions to the Jaintia and Naga Hills and to the part of the Khasi Hills that formed part of British India. The Privy Council held, as already mentioned, that the power conferred by section 9 on the Lieutenant-Governor to decide whether any part of the Act should apply to a particular district was a form of conditional legislation and did not constitute a delegation of legislative power. In delivering its judgment, the Judicial Committee also examined section 8 and observed that the provision did not permit the Lieutenant-Governor to create legislation at his discretion; rather, he was limited to applying, by public notification, any law or part of a law that already existed or might later be enacted by proper legislative authority in other territories subject to his Government.

The Court observed that the language of section eight required the Lieutenant-Governor to apply, by public notification, to a district any law or part of a law that either already existed or might later come into force by proper legislative authority in other territories subject to his Government. From this wording, the Court inferred that section eight did not confer any legislative power on the Lieutenant-Governor. It noted that section eight not only permitted the Lieutenant-Governor to extend legislation that was already in force into the territories specified in the Act, but also allowed him to extend any legislation that might be created in the future. Consequently, the Court said that a policy could be formulated regarding the extension of future legislation as well. However, the Court pointed out that the provision of section eight of Act XXII of 1869 was not identical to the provision of section seven of the Delhi Laws Act. Two significant differences existed. First, Act XXII of 1869 did not give the Lieutenant-Governor any power to modify the legislation he extended. Second, the laws that could be extended under section seven of the Delhi Laws Act were those already in force in the other territories that were administered by the Lieutenant-Governor himself.

In 1874 the Governor-General’s Legislative Council enacted the Scheduled Districts Act. The terms “Scheduled District” or “backward tracts” referred to areas later described as “exclude” or “partially exclude areas” in Chapter V of the Government of India Act, 1935, and these regions contained a substantial aboriginal population. The policy of the Government for these areas was to avoid applying the general rules of law and procedure that operated in other parts of the country. Under section five of the Scheduled Districts Act, the local government, with the prior sanction of the Governor-General in Council, could by notification in the official gazette extend to any scheduled district or part thereof any enactment that was in force in any part of British India at the date of such extension. Section five(a) further allowed the local government, again with prior sanction, to declare that the operation of the extended enactment would be subject to such restrictions and modifications as the Government thought appropriate. The Court noted that taken together, sections five and five(a) were almost identical to the provision of section seven of the Delhi Laws Act, because the power of extension applied to statutes prevailing in any part of British India, not only to those in the territories administered by the local government. The Court also cited the Burma Laws Act, 1898, where section ten(1) permitted the local government, with prior sanction of the Governor-General, to extend, by notification in the Burma Gazette, any enactment in force in Upper Burma to the Shan Estates or any specified local area, with such restrictions and modifications as it deemed fit.

In the Burma Gazette the local government was authorised, with the prior sanction of the Governor-General, to extend to all or any of the Shan Estates, or to any specifically identified locality within a Shan Estate, any enactment that was then in force in any part of Upper Burma. The extension could be made “with such restrictions and modifications as it thinks fit.” This provision, cited as paragraph 339, mirrors the Delhi Laws Act, although the executive’s power to extend statutes was limited strictly to those statutes that existed in Upper Burma. Paragraph 340 notes that, although examples of such legislation are few, they collectively demonstrate a legislative practice that continued after the Delhi Laws Act was enacted. The practice indicates an underlying policy that the legislature intended to guide the executive’s actions. The Court observed that delegating to the executive the authority to perform any act beyond that policy would constitute an unconstitutional delegation of legislative power. Moreover, the delegate could not be permitted to alter the legislative policy or to possess the power to repeal or abrogate any existing statute.

The discussion then turned to the precise meaning of the language in section 7 of the Delhi Laws Act, which empowers the Central Government to extend any statute in force elsewhere in British India to the Province of Delhi “with such modifications and restrictions as it thinks fit.” The term “restriction” was described as straightforward, signifying a limitation placed on a provision to restrain its application or to narrow its scope, without altering the principle underlying the provision. The Court held that, when read together with “restriction,” the term “modification” is used in a similar, non-radical sense and does not entail material or substantial alteration. Dictionary definitions were cited, explaining that to modify is to “tone down,” “soften the rigidity,” or make partial changes that are not fundamentally transformative. Consequently, it would be reasonable to interpret “modification” in section 7 as changes necessary only to adapt the extended statute to the local conditions of Delhi. The Court rejected the view that the executive could redesign the entire nature or policy of an Act, or combine portions of different statutes to create an “amalgam” of laws. The Attorney-General conceded that such extensive changes would exceed the scope of section 7 and would be invalid for contravening its provisions, though this admission did not, in the Court’s view, render section 7 itself invalid. Paragraph 341 then referenced the decision in Jatindra Nath Gupta v.

In the earlier case concerning the Province of Bihar, reported in the 1949 Federal Court Reports at page 596, the Court had agreed with several of the learned colleagues that to “modify” a statute amounted to performing a legislative act. That proposition had not been contested by the counsel representing the Province of Bihar. The Court had also held that the power to modify an Act could not be justified on the basis of conditional legislation, and the present judgment did not depart from that earlier view. Although the modification of a statute was recognized as an exercise of legislative function, the question of whether, in the circumstances of a particular case and considering the provisions of the statute that defined the nature of the modification, the conferring of such power could be treated as a delegation of ancillary authority to a subordinate agency, had not been raised before the Court in the Bihar case and therefore had not been examined. The Court considered it unnecessary to speculate whether its decision would have been different had that issue been properly presented, because any answer would depend on the specific wording of the statute involved. Consequently, the Court saw no need to repeat further observations on the Bihar judgment, which had been cited by both parties during their arguments. Turning to the interpretation of the word “modification” in section 7 of the Delhi Laws Act, the Court understood that the term did not imply any alteration of the policy underlying the Act. Rather, it was confined to changes of a character that preserved the policy of the Act while making it suitable to the local conditions, a judgment that the executive government was entitled to make. On that basis, the Court concluded that section 7 of the Delhi Laws Act did not contain an impermissible delegation of legislative power. The Court then examined the Ajmer-Merwara (Extension of Laws) Acts of 1947, specifically section 2, which empowered the Central Government to extend, by official gazette notification and with any restrictions or modifications it deemed appropriate, any enactment in force in another province to the Province of Ajmer-Merwara. This legislation had been enacted by the Dominion Legislature of India under section 18 of the Government of India Act, 1935, as adapted by the Indian Independence Act of 1947. It was not contested that Ajmer-Merwara was not a province within the meaning of section 46 of the Government of India Act, and that the Dominion Legislature, exercising its authority under section 100(4) of that Act, was competent to legislate on all matters listed in the three legislative lists of the Seventh Schedule of the Constitution Act. The policy underlying this legislation appeared virtually identical to that of section 7 of the Delhi Laws Act, and the Dominion Legislature had evidently intended that, until a local legislative body was established in the territory, the Central Government should have the authority to select existing enactments from other provinces and introduce them to the territory by public notification, applying such modifications and restrictions as it considered proper.

In this case the Court explained that, because a legislative body had not yet been established in the territory, the Central Government was intended to have the authority to choose statutes that were already operating in any other province and to introduce those statutes into the territory by means of a public notification, attaching any modifications or restrictions that the Government considered appropriate. The Court observed that the arguments that could be advanced to support the validity of section 7 of the Delhi Laws Act could with equal force be raised in support of the present legislative provision. It further noted that the policy declared by the legislature was clear and definite, and that the term “modification” was to be understood, as previously explained, as referring only to changes of a kind that do not amount to a radical alteration of policy but are made solely to adapt the transplanted law to the local conditions of the specific area. The Court added that if the Government were to exceed these limits, such excess would constitute a breach of section 2 of the Ajmer-Merwara Act, and on that ground the extended legislation could be challenged; however, the Court held that the section itself could not be declared invalid on that basis. Turning to the question of whether the Dominion Legislature had the competence to enact a provision of this nature, the Court pointed out that under the Government of India Act, 1935, legislative powers were divided between the Central and the Provincial Legislatures and that all subjects of legislation were enumerated in the three legislative lists. Accordingly, any law passed by a legislature must relate to one or more of the topics specified in those lists. While on its face such a law might not appear to fall within any particular item enumerated, the Court stated that there is no impropriety in recognising that the law pertains to the various subject-matters for which statutes already exist in other provinces and for which the Central Government has been granted the right to extend legislation under the Act. The Court explained that the subject-matter of all those statutes must inevitably be covered by one or another of the items in the legislative lists, and if a particular statute were found invalid because it fell outside the lists, the fact that it was extended under section 2 of the Ajmer-Merwara Act would not cure that infirmity. In the Court’s opinion, therefore, section 2 of the Ajmer-Merwara Act does not exceed the limits of permissible delegation and is not ultra vires. The Court then proceeded to the third and final provision under consideration, namely section 2 of the Part C States (Laws) Act, 1950. It described the composition of the Part C States as including certain former Indian princely states and some of the Chief Commissioners’ provinces. Under article 239 of the Constitution, the President is empowered, to the extent he deems appropriate, to administer these States through a Chief Commissioner, a Lieutenant-Governor, or the Government of a neighbouring State. The Court noted that the Constitution confers on Parliament the power to establish a legislature, a Council of Ministers and a High Court for each such State, as provided in articles 240 and 241, and that there is no distribution of legislative powers among the Part C States; all legislative authority, including the residuary power under article 248, resides in Parliament.

In this case, the Court explained that articles 240 and 241 provided for a Council of Ministers and a High Court for a Part C State, but did not allocate any separate legislative authority to such States; instead, the entire legislative competence, including the residuary power under article 248 of the Constitution, was vested in Parliament. Section 2 of the Part C States (Laws) Act, 1950, was then described as authorising the Central Government, by way of a notification in the official Gazette, to extend to any Part C State—except Coorg and the Andaman and Nicobar Islands—or to any part of such a State, with any restrictions and modifications it thought appropriate, any enactment that was in force in a Part A State at the date of the notification. The provision further stated that a provision could be made in any enactment so extended for the repeal or amendment of any corresponding law, other than a Central Act, that was then applicable to the Part C State. The Court observed that the powers conferred by this section on the Central Government were considerably broader than those conferred by the two earlier legislative provisions, based on the Court’s interpretation. It noted that a sensible policy allowed Parliament, where a proper legislative machinery had not yet been established in a particular area, to empower an executive authority to introduce laws that had been validly passed by a competent legislature and were already operating in other parts of the country, provided that any modifications were limited to minor local adjustments. However, this approach presupposed that no existing law on the same subject was already in force in that territory. The Court warned that if an existing law did exist and the executive was given power to repeal or abrogate it wholly or partially and replace it with laws from other provinces, such a power would amount to an unwarrantable delegation of essential legislative authority. Repeal or abrogation, the Court held, constituted a core legislative function that must reflect the legislature’s policy. If the legislature vested the executive with the discretion to decide which of the existing laws were suitable and allowed the executive to substitute them with laws imported from other regions, together with any modifications it deemed fit, this would effectively grant the executive control over the entire legislative policy rather than merely executing a policy already determined by the legislature. Consequently, the Court concluded that the power of extension contemplated by section 2 of the Part C States (Laws) Act included the authority to introduce laws that could be in direct conflict with laws already validly established and operating within the territory.

In this case, the Court observed that a practice originally adopted in the early British era as a temporary and seemingly harmless measure was intended to supply a newly acquired or under-developed territory with laws until that territory evolved into a fully functioning administrative and political unit. The Court noted that, in later periods, the same practice has been employed for a completely different purpose: to grant the executive government almost unrestricted legislative authority over certain areas. Under this scheme, the executive is authorised to alter, repeal or amend any law that presently operates in the concerned area, merely by invoking the introduction of statutes that are already valid in other parts of India. The Court expressed the view that such a delegation of legislative functions to the executive is unwarranted and cannot be allowed. Consequently, the Court held that the final clause of section 2 of the Part C States (Laws) Act exceeds the constitutional powers of Parliament because it delegates essential legislative authority to a body that lacks competence to exercise it, rendering that clause void. However, the Court said that the offending clause is severable, so the remainder of section 2 may continue to operate and the whole section need not be struck down.

The Court then answered the three specific questions that had been referred. First, it held that section 7 of the Delhi Laws Act, 1912, is wholly within the competence of the legislature that enacted it; no part of that provision is invalid. Second, the Court found that the Ajmer-Merwara (Extension of Laws) Act, 1947, and every provision contained in that Act are within the legislative power of the authority that passed it and are not ultra vires. Third, the Court declared that section 2 of the Part C States (Laws) Act, 1950, is ultra vires to the extent that it empowers the Central Government to extend to Part C States statutes that are in force in Part A States, even when those statutes may clash with or affect laws already existing in the territory to which they are extended. Moreover, the power given in the final clause of that section to make provisions for the repeal or amendment of any corresponding provincial law presently applicable to a Part C State is illegal and ultra vires. The Court further explained that the answers to the questions referred by the President under article 143 of the Constitution depend upon an accurate understanding of the legislative competence of the Indian Legislature during the three historical periods concerned. A proper appreciation of the foundational principles of the British Constitution, the principles derived from the British Parliament, and the present Constitution is a prerequisite for this analysis. It is well known that under the British Constitution the King in Parliament constituted the sovereign power of the State. After a prolonged struggle, the concentration of power in the monarch waned and parliamentary supremacy was fully established.

In this portion of the judgment the Court explained the doctrine of parliamentary sovereignty by citing A V Dicey’s treatise, Law of the Constitution, ninth edition, page 68, where Dicey states that parliamentary sovereignty is an unquestionable legal fact, possessing both positive and negative dimensions, and that Parliament may legislate on any subject it deems appropriate, without any competing authority under the English Constitution. The Court then noted that in Chapter II Dicey enumerates the characteristics of that sovereignty, emphasizing that no law is beyond Parliament’s power to amend, that the English Constitution makes no distinction between fundamental, constitutional, or ordinary statutes, and that no individual or body may invalidate an Act of Parliament on constitutional or any other grounds. Dicey is further quoted as observing the flexibility of the British Constitution, whereby every part may be expanded, curtailed, amended, or abolished with equal ease.

The Court proceeded to cite Sir Cecil Carr’s observations in his lectures on English Administrative Law, page 15, which assert that in Britain the King in Parliament is all-powerful, that no Act passed by Parliament is invalid beyond the ordinary limits of judicial interpretation, and that any Act may be repealed like any other, including the Magna Carta, despite popular belief to the contrary; Carr also remarks that although Sir Edward Coke once claimed a statute contrary to the Magna Carta would be void, about two-thirds of the Magna Carta has already been repealed. The judgment then affirmed that because Parliament’s legislative power is unlimited, it may lawfully delegate portions of that power to executive officers or subordinate bodies.

To illustrate the theory of delegated legislation, the Court referred again to Sir Cecil Carr’s discussion reproduced in the Report of the Committee on Ministers’ Powers, commonly known as the Donoughmore Committee report. Carr distinguishes three sources of law: the smallest portion made by the Crown under the residual prerogative, the larger portion consisting of Acts of Parliament enacted by the King in Parliament, and the bulk of law created by persons or bodies to whom the King in Parliament has entrusted legislative authority. The Court emphasized that such delegation is a necessary incident of legislative function, and listed practical reasons for delegating authority, namely Parliament’s lack of time to detail every legislative measure, its limited technical expertise, the need for swift action when Parliament is not sitting, and the desire to retain flexibility in laws that closely affect citizens’ lives. The Court cited Carr’s work on English Administrative Law, page 23, and also referenced Kennedy’s commentary on the Constitution of Canada, second edition, page 461, to support these observations.

Sir Cecil Carr, in his commentary on the Constitution of Canada (second edition, page 461), observed that without a willingness to delegate law-making authority Parliament would be incapable of enacting the volume and type of legislation demanded by modern public opinion. He emphasized that the sheer quantity and complexity of contemporary legislative requirements make delegation indispensable. The author further noted that in England the practice of delegating legislative power has been encouraged by the close fusion of legislative and executive functions that developed with the cabinet system of government.

The Donoughmore Committee’s report divided delegated legislation into two principal categories: normal delegation and exceptional delegation. The normal category is identified by two distinct characteristics. The first, a positive characteristic, is that the enabling Act clearly defines the limits of the delegated power so that Parliament, the executive, the public and the courts can all readily understand and enforce those limits. The second, a negative characteristic, is that the enabling Act expressly excludes certain powers from the delegation, thereby indicating what the delegate may not do.

The exceptional category, according to the Donoughmore Committee, comprises four separate heads. The first head involves granting the power to legislate on matters of principle and even to impose taxation. The second head permits the delegate to amend Acts of Parliament, whether the Act that confers the delegated power or other Acts, a power commonly referred to as a “Henry VIII clause.” The third head confers on a Minister a discretion so wide that it becomes virtually impossible to discern the limits Parliament intended to impose. The fourth head arises where Parliament, without formally abandoning its usual practice of limiting delegated powers, effectively does so by prohibiting judicial review of the delegated measures.

Kennedy, in his work on the Constitution of Canada (second edition, page 463), enumerated instances of delegated legislative powers in Canada that correspond closely to the categories described above. These headings illustrate the extensive range of delegation exercised by the British Parliament. The Donoughmore Committee did not question the strict legality of any of the exceptional forms of delegated legislation, nor did it call for their complete abolition. Instead, the Committee recommended that the most striking forms of exceptional delegation should be avoided except in truly extraordinary circumstances, and that any such delegation should be justified by special reasons set out in a ministerial memorandum attached to the bill.

Subsequent to the Committee’s report, England established a Select Committee on Statutory Instruments. This committee is tasked with examining every bill that proposes to delegate legislative authority and with reviewing every regulation or rule made under such delegated power. Consequently, although the power of Parliament to legislate is theoretically unlimited and, by extension, its power to delegate is likewise without formal limits, Parliament, through the oversight of the Select Committee on Statutory Instruments, maintains vigilant supervision of the activities of those persons or bodies to which legislative power has been delegated.

In the present discussion, the Court observed that Parliament endeavoured to preserve its control over delegated legislation. The Court further noted that the characteristic principles of the British Constitution, which had been mentioned earlier, had not been contested before it. Turning to the American Constitution, the Court found that a different principle operated. The framers of the American Constitution, the Court explained, were strongly influenced by the political theories of John Locke and Montesquieu. The Court quoted Locke’s writing in Civil Government, article 141, stating: “The legislature cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.” The Court also quoted Locke’s view in article 142, adding that “the legislature neither must, nor can, transfer the power of making laws to anybody else, or place it anywhere but where the people have.” Montesquieu, the Court noted, developed the doctrine of separation of powers in his work Esprit Des Lois. While England, after the Glorious Revolution of 1688, had moved away from the rigid doctrine of separation of powers and never returned to it, the American framers adopted the doctrine in its full force because, as Professor Wills explained on page 168, the founders were “so afraid of despotism and tyranny that they intended to establish a separation of the powers of government in order to prevent the exercise of all the powers of government by any single branch of government.” The Court recorded that forty State constitutions expressly provided for the separation of powers, whereas the remaining eight State constitutions, like the Federal Constitution, did not expressly create a separation but nevertheless vested the powers separately in the three branches of government. The Court then referred to the relevant provisions of the Federal Constitution, namely: Article 1, section 1, which provides that “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”; Article 2, section 1, which declares that “The executive power shall be vested in a President of the United States of America”; and Article 3, section 1, which states that “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 to time, ordain and establish.” In view of this separate enumeration of the three powers and the vesting of each in a distinct body, the United States Supreme Court, in Springer v. Government of Phillippine Islands [(1927) 277 U.S. 189; 72 L. Ed. 845], held that the separation of power “is implicit in all, as a conclusion logically following from the separation of the several departments.” Finally, the Court cited Professor Willis at page 134, who affirmed that “the doctrine of the separation of governmental powers is an American doctrine and an implied doctrine of the United States Constitution, and of those State Constitutions which do not expressly set it forth.” Alongside this doctrine of separation of powers, the Court noted that American constitutional law embraced another doctrine, which was to be considered subsequently.

In the United States, the doctrine of separation of powers also carries with it a prohibition against delegating legislative authority. Author Sutherland, in his work on statutory construction, observes that the separation-of-powers principle entails the corollary that only the legislature may exercise legislative power, and no government agency may do so. Willis further explains that the rule against delegating legislative powers, if such a rule exists, is broader than the simple separation-of-powers doctrine. He notes that the portion of the rule that forbids delegating powers to other branches of government falls within the separation-of-powers concept, whereas the portion that forbids delegating powers to independent boards or commissions rests on the maxim “delegata potestas non potest delegare.” The doctrine of separation of powers is based on the inability of one department of government to acquire or exercise the powers assigned to the other two departments. By contrast, the maxim “delegata potestas non potest delegare” is founded on the inability of any government department to transfer to non-governmental bodies the powers that the Constitution expressly places in its charge. In practice, delegation of authority is usually made to executive officers, so American constitutional law has tended to emphasize the separation-of-powers doctrine as the primary rule, while treating the delegata potestas maxim as a subsidiary principle. Both doctrines, however, are rooted in a theory of trust: the people, through the Constitution, have apportioned governmental functions among the three great departments—legislative power to Congress, executive power to the President, and judicial power to the Supreme Court and lower courts. Consequently, each department must perform only the duties expressly entrusted to it and may not discharge those duties through another person or agency. This theory of trust or agency differs from British constitutional practice, where Parliament enjoys supreme authority and is permitted to delegate widely. As Judge Dixon observed in a 1935 article, the American separation-of-powers doctrine represents a departure from, and indeed a violation of, British constitutional tradition. When the American doctrines are applied to their logical extreme, they effectively prohibit any delegation of legislative power. Cushman, discussing independent regulatory commissions, underscores that if legislative power resides in Congress, it cannot logically be transferred to anyone else.

In the passage cited from Cushman, the writer asserted that when legislative authority is vested in a body such as the United States Congress, it follows logically that such authority cannot be transferred to any other entity. The judgment in Locke’s Appeal, reported in 1873 at page 491 of the Pennsylvania Reports, was then quoted to illustrate the same principle. That judgment explained that a power given to an agent on the basis of his fitness and the confidence placed in him may not be further delegated, describing this rule as a general and widely accepted principle. The judgment further observed that legislatures occupy a similar relationship with the people they represent, and therefore a fundamental principle of representative government dictates that a legislature may not delegate its law-making power to any other body or authority.

Subsequently, the Court referred to the doctrine articulated by Judge Cooley in his work “Constitutional Limitations.” In volume three of the eighth edition, on page 224, Judge Cooley stated a well-known maxim of constitutional law that the power granted to a legislature to enact laws cannot be delegated to another body or authority. He explained that wherever the sovereign power of the State has placed authority, that authority must remain there, and only the constitutional agency may make laws until the constitution itself is amended. According to Judge Cooley, the legislature, having been entrusted with the high prerogative based on the judgment, wisdom, and patriotism of the people, cannot relieve itself of responsibility by assigning that power to other agencies, nor may it replace its own judgment with that of any other body.

The Court then examined how American judges and jurists have attempted to preserve the pure form of these doctrines. After citing the passage from Judge Cooley, the Court turned to the commentary of Professor Willoughby in the second edition of “Constitutional Law of the United States,” volume three, article 1075, page 1636. Professor Willoughby noted that the absolute principle outlined above is subject to an important exception and to several qualifications or explanations. He explained that the exception concerns the delegation of powers to local governments. According to the Court’s reference, the courts have held that when the central legislative body confers extensive law-making powers concerning local matters upon subordinate governing bodies, this practice reflects an Anglo-Saxon tradition that predates the adoption of the Constitution, and that the right of local self-government is a fundamental feature of the political system. In the absence of any express constitutional prohibition, the Constitution is to be interpreted as permitting such delegation.

The Court observed that Professor Willoughby’s description identifies the delegation to local bodies as “the giving by the Central legislative body of extensive law-making powers with reference to local matters.” This description, the Court noted, represents an intrusion upon the absolute doctrine of separation of powers and the maxim of non-delegation. Nevertheless, the Court emphasized that this intrusion is not the only limitation on the doctrine, suggesting that practical necessities have compelled American judges and jurists to make further concessions beyond the narrow exception identified by Professor Willoughby.

The Court observed that the necessity of effective governance had forced American judges and jurists to make additional concessions regarding the doctrine of non-delegation. It therefore became essential to examine certain American decisions that illustrated this development. In this regard, Professor Corwin, in the third edition of his work entitled The President; Office and Powers, Chapter IV, page 151, cited the case of Brig Auroro v. United States [(1812) 7 Cr. 382] as the earliest authority dealing with the relationship between the legislative power of Congress and the national executive power. That case concerned the Non-intercourse Acts of 1909-1910. Under Section 4 of those Acts it was unlawful to import any goods from any port in Great Britain or France. Section 11 authorized the President, if either France or Great Britain withdrew its edicts that contravened the United States’ right of neutral commerce, to announce the change by proclamation and to permit trade to resume with the affected nation after such proclamation. The statutes also provided that the operation of the Act could be revived by a proclamation issued by the President. Accordingly, the President issued a proclamation declaring that Great Britain had withdrawn its edicts hostile to the United States, and consequently the prohibitions of the Act ceased to apply to Great Britain. Later the President revoked that proclamation. The ship Aurora had departed Liverpool with cargo before the revocation, and the cargo was subsequently seized. The argument presented before the Court was that Congress could not delegate its legislative authority to the President; making the revival of a law dependent upon a presidential proclamation effectively gave that proclamation the force of law. This argument was rejected by Justice Johnson, delivering the opinion of the Court with Chief Justice Marshall, who stated: “On the second point, we can see no sufficient reason why the legislature should not exercise its discretion in reviving the Act of March 1st, 1807, either expressly or conditionally, as their judgment should direct.”

The Court further noted that the practical difficulties of applying the non-delegation maxim literally had been recognised early by Chief Justice John Marshall in Wayman v. Southard [(1825) 16 Wheaton 1; 6 L. Ed. 253]. The issue in that case was whether, under the Constitution of the United States, Congress possessed the authority to regulate the procedures of the Federal Courts. The Process Act, as then framed, stipulated that the system was “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 the defendants argued that this clause, if applied beyond mere regulation of courtroom practice, amounted to a delegation of legislative power that Congress could not have intended to make. Chief Justice Marshall dismissed this objection, stating: “It will not be contended …” thereby affirming that Congress may delegate powers that it can rightfully exercise, provided the delegation does not constitute a transfer of strictly legislative functions.

In the passage, it was observed that Congress could not delegate to the courts or any other tribunals powers that were strictly and exclusively legislative, but could certainly delegate to others those powers that the legislature itself might rightfully exercise. The learned Chief Justice further explained that the precise line separating subjects that must be wholly regulated by the legislature from those of lesser importance, where a general provision might be made and detail left to those acting under such provisions, had not been exactly drawn. He stated that to determine the character of the power given to the courts by the Process Act, it was necessary to inquire into its extent. By distinguishing between powers that were “strictly and exclusively legislative” and those that merely filled in details, the Chief Justice avoided the strict rigours of the non-delegation doctrine while still acknowledging the principle of separation of powers. This approach, which honoured the doctrine yet permitted practical government needs, was noted as a recurring feature in later American decisions. The case of Field v. Clark [(1891) 143 U.S. 649; 36 L. Ed. 294] dealt with the validity of the third section of the Tariff Act, 1890, wherein the objection claimed that the section transferred the legislative treaty-making power to the President and authorised him to suspend the provisions granting free introduction of sugar, molasses, coffee, tea and hides. Justice Harlan, citing the Lawyers’ Edition at page 310, reiterated that the doctrine prohibiting Congress from delegating legislative power to the President was universally recognised as vital to governmental integrity. He explained that legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency, and that the President’s role was merely to execute the Act, not to make law, acting as an agent of the law-making department to ascertain and declare the triggering event. The judge then quoted Judge Ranney of the Supreme Court of Ohio in Cincinnati W. and Z.R. Co. v. Clinton County Commissioners [Ohio St. 88], observing that “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 exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” He further cited Locke’s Appeal [72 Pa. 491], stating that to assert that a law is lesser because it depends on a future event robs the legislature of the power to act wisely for public welfare, and that while the legislature cannot delegate its power to make a law, it may enact a law that delegates the power to determine certain facts or states of things upon which the law itself depends, noting that denying this would halt the wheels of government.

In this part of the judgment, the Court examined the distinction between delegating the power to make law and delegating authority to execute law. The Court observed that the power to decide what the law shall be could not be delegated, whereas authority to carry out the law could be exercised under the law. The Court noted that no valid objection could be raised against such execution authority. The Court then cited a passage from Locke’s Appeal, emphasizing that to claim a law is inferior because it depends on a future event would deprive the legislature of the ability to act wisely for public welfare when dealing with matters that are not yet known or are future and uncertain. The Court further quoted another statement asserting that the legislature may not delegate its law-making power, but it may enact a law that delegates the power to determine a particular fact or condition on which the operation of the law depends. The Court warned that denying this possibility would halt governmental functions, because useful legislation often must rely on facts that legislators cannot ascertain within the legislative process and therefore must be investigated outside the legislative chamber. The Court applied these principles to the validity of section 3 of the statute under review. The Court held that section 3 did not constitute an improper delegation of legislative power, and therefore it did not violate the doctrine of separation of powers; rather, it represented an instance of conditional legislation. The Court further observed that, upon strict analysis, even conditional legislation involves a delegation of legislative power, albeit a minimal one.

The Court then turned to the case of Buttfield v. Stranahan, reported in (1904) 192 U.S. 471, which concerned an Act that authorized the Secretary of the Treasury to prescribe uniform standards of purity, quality, and fitness for consumption of all teas imported into the United States. In delivering the opinion, Justice White remarked at page 494 that Congress had legislated as far as was reasonably practicable on the subject and, because of the necessities of the case, had been compelled to entrust executive officials with the duty of achieving the result identified by the statute. Justice White warned that refusing to acknowledge Congress’s power to delegate such a duty would effectively amount to declaring that Congress’s plenary authority to regulate foreign commerce could not be effectively exercised. The Court summarized this view by stating that, in short, Congress may delegate its powers when such delegation is necessary to obtain the results it desires. The discussion then moved to the Webb-Kenyon Act of 1913, which was analyzed in Clark Distilling Company v. West Maryland Railway Co., reported in (1917) 242 U.S. 311. The Act prohibited the shipment or transportation of any intoxicating liquor from one State to another in violation of the law of the destination State. One argument raised before the Court was that the Webb-Kenyon Act represented an unconstitutional delegation of legislative power to the States. This argument was rejected by Chief Justice White, whose opinion at page 338 of the Lawyers’ Edition explained the Court’s reasoning.

The Court explained that the argument concerning delegation of authority to the States was based on a simple misunderstanding. It acknowledged that the Webb-Kenyon Act authorizes State laws to prohibit the movement of intoxicating liquor from one State into another, but emphasized that the power to make those State prohibitions effective originated from Congress; consequently, the State restrictions would terminate automatically the moment the federal statute ceased to apply. The Court noted that this observation reflected the reasoning of the Privy Council in Hodge v. The Queen (1883) L.R. 9 App. Cas. 117 and in other authorities that would be cited later. Referring to the traditional maxim against delegation, the Court cited Professor Corwin, who observed that in the present context the judiciary appeared to be on the verge of discarding the maxim entirely. The Court then turned to the case of J.W. Hampton Jr. and Co. v. United States (1927) 276 U.S. 394; 72 L. Ed. 624, where the issue was whether the Tariff Act’s provision empowering the President to issue a proclamation fixing tariff rates amounted to an unconstitutional delegation of legislative power to the President. After reviewing the constitutional division of governmental power among the legislative, executive and judicial branches, Chief Justice Taft, at page 629 of the report, explained that Congress’s legislative field covers a wide variety of actions and that, in practice, Congress frequently finds it necessary to employ officers of the executive branch within clearly defined limits in order to achieve the precise effect intended by its statutes. To accomplish this, Congress may vest discretion in those officers to issue public regulations that interpret the statute, to direct the details of its implementation, and even to provide for penal sanctions for violations of those regulations. The Chief Justice further justified these exceptions to the non-delegation rule at page 630, stating that requiring Congress to specify every individual rate would render the power ineffective. Accordingly, common sense permits Congress, when fixing rates, to delegate that function to a specialized body such as the Interstate Commerce Commission, which can determine rates after hearing evidence and arguments from interested parties, provided that Congress first establishes a general principle that rates must be just, reasonable, related to the service rendered and non-discriminatory. The Court also quoted Justice Day’s earlier judgment in Interstate Commerce Commission v. Goodrich Transit Company (224 U.S. 194 at p. 214; 56 L. Ed. 729 at p. 737), which held that while Congress may not delegate its pure legislative authority to a commission, it may lay down general rules of action and then require the commission to apply those rules to specific situations, to investigate facts, and to issue orders within the framework established by Congress. The passage concluded by citing United States v. Shreveport Grain and Elevator Co. (1932) 287 U.S. 77; 77 L. Ed. 175, which further illustrated the Court’s approach to the doctrine of non-delegation.

In this matter the respondent was charged with the offence of misbranding certain sacks that contained corn meal, a conduct that violated the Food and Drugs Act of 1906. The respondent applied to have the indictment set aside, arguing, among other reasons, that the Act was unconstitutional because it delegated legislative power in a manner that conflicted with Articles 1, 2 and 3 of the Federal Constitution. Justice Sutherland addressed the issue by observing that the principle that Congress may not surrender its legislative authority is well established. Nevertheless, he explained that Congress is permitted to articulate its overall intent, establish a primary standard, and then entrust administrative officials with the “power to fill up the details” by formulating administrative rules and regulations. He further noted that the provision under attack serves to define a criminal offence, yet it also instructs the officials responsible for administering the Act to issue supplementary rules and regulations that accommodate reasonable variations, tolerances and exemptions. Such detailed guidance, he said, was necessary because the variety and complexity of the facts made it impracticable for Congress to prescribe every specific requirement. The commentary went on to point out that the doctrine of non-delegation has gradually narrowed over time, eventually being limited to matters that involve strictly and exclusively legislative powers, purely legislative power, or essential legislative functions. However, the narrative recorded a reversal of this trend in 1934, when the case of Panama Refining Co. v. Ryan (1934) 293 U.S. 388; 79 L. Ed. 446 examined the constitutionality of the National Industrial Recovery Act of 1933. Chief Justice Hughes, after a detailed analysis of sections 1 and 9(c), concluded that Congress may not abdicate or transfer its essential legislative functions to other bodies. He acknowledged that legislation often must be adapted to complex conditions that a national legislature cannot manage directly, and that the Constitution does not preclude Congress from exercising flexibility by setting policies and standards while delegating subordinate rule-making within prescribed limits. Hughes warned that without such authorisations, legislative power would become futile in many situations, yet he cautioned that the recognition of administrative authority must not obscure the constitutional limits on delegation if the constitutional system is to be preserved.

The Court’s majority, despite the clear and explicit language of sections 1 and 9(c), held that those provisions failed to articulate any substantive policy or establish a definitive standard; consequently, the delegation authorized by section 9(c) was deemed unconstitutional. In dissent, Justice Cardozo argued that the Act had, in fact, set forth an adequate policy and that the discretion conferred was not “unconfined and vagrant” but rather was “canalised within banks that keep it from overflowing.” This contrasting viewpoint highlighted the ongoing debate over the scope of permissible legislative delegation, a debate that would continue in subsequent cases such as Schechter v. United States (1934) 295 U.S. 496; 79 L. Ed. 1570, and would influence later legislative enactments that granted extensive executive powers without being successfully challenged on non-delegation grounds.

In that discussion the Court observed that the Act had indeed set out a policy and that the discretion it conferred was not “unconfined and vagrant” but rather “canalised within banks that keep it from overflowing.” The Court noted that the decision in Schechter v. United States [(1934) 295 U.S. 496; 79 L. Ed. 1570] followed the same line of reasoning and did not advance the matter further. Although those two cases had been decided, Congress proceeded to enact other statutes, for example the Agricultural Marketing Act, 1937, which granted the executive similarly broad authority, including the power to fix prices. The later statutes had not been challenged on constitutional grounds. Referring to the two earlier precedents, Professor Corwin commented that neither had materially influenced congressional policy at the time and that both had subsequently been relegated by the Court to a crowded collection of juridical curiosities. The Court then referred to later decisions such as Opp Cotton Mills v. Administrator [(1940) U.S. 126; 85 L. Ed. 624] and Yakus v. United States [321 U.S. 414; 88 L. Ed. 834], which suggested that a further shift in doctrine might occur. In Opp Cotton Mills, Justice Stone, at page 145, acknowledged that while fact-finding was often part of the legislative process, Congress could nevertheless leave that function to administrative officers or boards whose assistance it might seek. Justice Holmes, in his dissent in Springer v. The Government of Philippine Islands [(1927) 277 U.S. 189; 72 L. Ed. 845], remarked that although it was said that Congress could not delegate its powers, the establishment of the Interstate Commerce Commission demonstrated that Congress performed legislative, judicial and executive functions, albeit softened by a quasi-... He concluded that it was unnecessary to argue that, however disguised with veiling language, the distinction between legislative and executive action could be drawn with mathematical precision or that the Constitution required perfectly watertight compartments. The Court also cited Sir Cecil Carr’s observations on English administrative law, noting that a visitor to the United States might be astonished by the way American constitutional law treated the doctrine of separation of powers. Carr reported that the visitor found the doctrine emphatically incorporated in many state constitutions and indirectly asserted in the Federal Constitution, and that an absolute insistence on separation would seem to prohibit any delegation of legislative power to the executive. Yet the visitor learned that, from the early years of the United States, such delegations had occurred, and that contemporary jurisprudence held that Congress may delegate its powers when convenient, reflecting a pragmatic rather than a dogmatic approach.

In the passage, the writer describes how a visitor to the United States would encounter contradictory statements regarding the doctrine of separation of powers. The visitor learns that, although early American thought held that “Congress may not delegate its powers,” later writings suggest a more flexible rule, with one source stating that “Congress may not delegate its powers unless it is convenient to do so” (E. S. Corwin, the Constitution and what it means to-day). The visitor is then told that the Supreme Court of the United States does not treat the separation of powers as a strict technical doctrine, and that the doctrine was never meant to create impermeable compartments among the branches of government. The United States, the writer explains, has achieved regulation in many areas—such as navigation, railroad rates, the Pure Food and Drugs Act, and the allocation of wavelengths—by refusing to adhere rigidly to a sterile dogma. A citation is made to Frankfurter’s work, The Public and its Government, page 76, which supports this observation. The writer further notes that it was not until 1935, in the case of Panama Refining Co. v. Ryan [(1934) 293 U.S. 388; 79 L. Ed. 446], that an act was declared invalid on the ground that it failed to separate the powers.

Schwartz, in his treatise American Constitutional Law, concludes on page 20 that few judges, unlike the great Chief Justice, could openly admit that the constitutional maxim was not inflexible. He observes that when American courts finally faced delegation cases directly, they resolved the judicial dilemma by carefully choosing the language used to describe the delegated authority. In the words of Justice Holmes, the authority transferred was “softened by a quasi,” allowing the courts to acknowledge the existence of delegated legislation while simultaneously denying that such delegation violated the constitutional principle. Professor Cushman’s syllogism is then presented: the major premise asserts that legislative power cannot be constitutionally delegated by Congress; the minor premise holds that certain powers must be delegated to administrative officers and regulatory commissions; therefore, the conclusion is that powers thus delegated are not legislative powers. These delegated powers are instead characterized as “administrative” or “quasi-legislative” powers.

Despite the maxim against delegation, the American legislature has been able to confer considerable authority upon the executive. The extent of this delegation became so great that Elihu Root, writing in 1916, declared that the old doctrine prohibiting the delegation of legislative power had “virtually retired from the field and given up the fight.” Professor Willis, on page 135, raises the question of whether the doctrine still exists under United States constitutional law. In the following passage on page 136, he describes the doctrine as a “dogma (in harmony with our definition) that legislative power cannot be delegated either to the other branches of the government or to independent boards or commissions, or even back to the people; but the rule of the dogma has so many exceptions that it is difficult to decide whether the dogma or the exceptions state the rule.” This commentary highlights the tension between the doctrinal prohibition on delegation and the numerous recognized exceptions that have emerged in practice.

Professor Willis identified several recognised exceptions to the rule that forbids the delegation of legislative authority. He explained that the rule does not bar the transfer of powers that relate to local self-government. He further noted that a legislature may delegate the authority to decide the conditions or contingencies under which a statute will become effective. In addition, a legislature may entrust the power to make regulations to bodies such as boards of health or to the heads of various departments. Finally, a legislature may delegate the authority to ascertain facts and to apply legal rules in specific disputes, for example in the administration of standards by the commerce department, the land department, industrial commissions, public-utility commissions, tax commissions, and even by the President when dealing with tariff provisions or the sale of alien property.

After reviewing these exceptions, Professor Willis expressed the view that, despite the numerous carve-outs, the rule against delegation is in practice honoured more by breach than by observation. He questioned whether a true doctrine of separation of powers still existed when so many delegations were tolerated.

The discussion then turned to the historical background of the American constitutional system. The framers of the United States Constitution were deeply fearful of the concentration of despotic power; consequently they adopted the political philosophies of Locke and Montesquieu and embedded a system of separation of powers in the Constitution. Early American courts interpreted the federal Constitution as embodying this separation of powers, a principle that was also expressly present in most state constitutions. In theory, such a doctrine would disallow any delegation of legislative authority.

Nevertheless, practical necessities soon compelled the government to delegate legislative functions to the President or to other persons and bodies. Because the American public remained apprehensive about the potential tyranny of concentrated power, judges and jurists felt bound to uphold the doctrinal prohibition in theory while, in practice, allowing extensive delegations. They justified these delegations by arguing that the transferred powers were not truly legislative but merely involved filling in details, ascertaining and declaring facts, making administrative rules and regulations, or dealing with minor matters. Leading judges described the permissible delegations as “strictly and exclusively” or “purely” legislative power, reserving the core of legislative authority for the legislature itself. It was acknowledged, however, that the functions permitted to be delegated could equally be performed by the legislature, and when the legislature exercised them they would constitute the exercise of legislative power.

The Court explained that any function which is legislative in nature when exercised by the legislature retains its legislative character even when it is performed by a person or body to whom the legislature has assigned that function. Accordingly, delegation cannot transform a legislative power into an executive power. The Court noted that the United States courts have been compelled, by a desire to reconcile the doctrine that forbids delegation with the practical needs of government, to employ careful wording and interpretative tricks to preserve the doctrine. In reality, the Court observed, the scope of the anti-delegation doctrine has been rapidly narrowing, and although American judges and jurists do not openly admit it, Congress has increasingly exercised the power to delegate aspects of its legislative authority. The Court stated that whatever powers Congress delegates are, in fact, portions of the content of its legislative powers. Referring to Professor Corwin’s work, the Court quoted the passage on page 154 of “President : Office & Powers,” which observes that, amid the ever-present complexities confronting governments, “the Lockian aphorism has fought a losing rearguard action.” The Court further remarked that advocates of the strict separation of powers who argue that such exceptions do not amount to delegation overlook the simple fact that a legislature, possessing only legislative power, can delegate only matters that form part of that legislative power. Consequently, any power that Congress delegates, irrespective of the label applied to it, must necessarily be a component of its legislative power, because Congress possesses no authority beyond legislative authority. The Court then cited Professor Corwin again, this time from page 150 of “President : Office and Powers,” providing the following passage: “By the strict logic of the principle of the separation of powers, the only power which the legislature possesses to delegate is legislative power: yet by the maxim just quoted it is this power precisely which the legislature cannot delegate. Conversely, by the principle of the separation of powers the executive should be incapable of receiving or exercising anything but executive power, from which it must follow either that the executive can never receive any power from the legislature or that when power passes it is automatically transmuted from legislative into executive power. But the former alternative is obviously contrary to fact, and the latter opens the way to delegation by the legislature of all its power to the executive.” The Court concluded that, even in a system that emphasizes separation of powers, the only remaining requirement of the doctrine is that the legislature must articulate a policy (as stated by Hughes C.J.) or establish a primary standard (as stated by Sutherland J.). The Court acknowledged that what constitutes a sufficient policy statement or primary standard will inevitably vary according to the perspective of the judges hearing the case. Finally, the Court observed that the extensive policy formulation presented by Congress in section 1 of the National Industrial Recovery Act was not regarded by the United States Supreme Court as a constitutionally adequate statement of legislative policy.

In the decision involving the Panama Refining Company, the Court held that the case demonstrated an adequate laying down of policy, thereby satisfying the constitutional requirement for a legislative grant of power. By contrast, the Court later observed that the Canadian Parliament, through the War Measures Act of 1914, and the Australian Parliament, through the National Security Act of 1939, each enumerated a series of subjects on which the Governor-General was authorised to make regulations for the defence and effective prosecution of war. No detailed policy guidance was provided for any of those subjects, yet the Court accepted this bare enumeration of powers as perfectly constitutional. This contrast illustrated that a specific policy statement was not always necessary for a statutory delegation to be upheld, and the Court recorded this principle in the case record identified as paragraph 405.

Turning from those examples, the Court proceeded to examine the law-making authority of the legislatures that were created by or under the authority of the British Parliament. The Court noted that a brief exposition of the constitutional instruments that gave rise to the important Dominion legislatures would be helpful at this point. Accordingly, the Court set out the relevant provisions of the British North America Act of 1867, which established the Canadian parliamentary system. Section 9 of that Act declares that the executive government and authority of Canada continue to be vested in the Queen. Section 17 provides that Canada shall have a single Parliament consisting of the Queen, an Upper House styled “the Senate,” and a House of Commons. Section 96 assigns to the Governor-General the power to appoint judges of the superior, district, and county courts in each province, except for the probate courts of Nova Scotia and New Brunswick. Finally, Section 101 authorises the Parliament of Canada, notwithstanding any other provision of the Act, to from time to time create, maintain, and organise a general Court of Appeal for Canada and to establish any additional courts that may be required for the better administration of Canadian law.

The Court then turned to the constitutional framework of Australia as created by the Commonwealth of Australia Constitution Act of 1900. Part I, Section 1 of that Act vests the legislative power of the Commonwealth in a Federal Parliament composed of the Queen, a Senate, and a House of Representatives, and defines this body as “the Parliament of the Commonwealth.” Chapter 2, Section 61 vests the executive power of the Commonwealth in the Queen, exercisable by the Governor-General as the Queen’s representative, and extends that power to the execution and maintenance of the Constitution and the laws of the Commonwealth. Chapter 3, Section 71 vests the judicial power of the Commonwealth in a Federal Supreme Court called the High Court of Australia, and in any other federal courts that Parliament may create or confer federal jurisdiction upon. After outlining the Australian constitutional provisions, the Court indicated that the constitution of India has undergone changes during the three periods relevant to the present reference. While the detailed statutes and instruments governing India’s constitutional development would be discussed later, the Court noted for the present purpose that, at no time, did India adopt a system in which legislative, executive, and judicial powers were separately vested in distinct bodies as was the case in the United States or Australia.

The Court observed that, unlike the United States or Australia, the Indian constitutional framework never placed the legislative, executive and judicial functions in three separately vested departments. It noted that under the British North America Act the executive authority alone was expressly vested in the Queen, while the Constitution simply provided for a Parliament and a Judiciary without expressly assigning legislative or judicial powers to any particular person or body. Consequently, the Indian Constitution, at any point in its history, did not contain a strict separation of powers. By contrast, the Commonwealth of Australia Constitution Act adopted an American-style scheme that expressly vested legislative, executive and judicial authority in three distinct branches of government. The Court further pointed out that neither Canada nor Australia has embraced a doctrine of non-delegation of powers grounded in a principle of separation of powers or an agency theory, except that Australia recognises non-delegation only insofar as it concerns the judiciary. The Court then referred to the case of Victorian Stevedoring and General Contracting Company v. Dignan [(1931) 46 C.L.R. 73], where the Chief Justice, Gavan Duffy, cited Judge Cooley’s discussion of the non-delegation doctrine and remarked at page 83 that even if the statute interfered with the doctrine, English law had never implied such a restriction on the basis of the division of governmental functions. The Court also recorded that Justice Dixon, in the same decision, examined the maxim “delegata potestas non potest delegare” on pages 94-95 and concluded that it did not apply in Australia and that no comparable doctrine existed for British colonial legislatures, whether created by prerogative or by Imperial statute. Justice Evatt, likewise, at page 114, emphasized that when considering the “separation” of legislative and executive powers, one must remember that the Commonwealth’s system is founded on the British model in which the Executive is accountable to Parliament, a system that does not operate under the United States Constitution. Finally, the Court cited Justice Dixon’s article “The Law and the Constitution” in the 1935 volume of the Law Quarterly Review (page 590, with a further passage on page 605), wherein he described the American classification of powers as artificial and largely incompatible with British practice. Dixon argued that the Australian constitutional arrangement follows the American plan, yet the idea that law-making is confined solely to the legislature, preventing the Executive from completing its tasks, is alien to English legal concepts. As a result, Australian courts have either ignored or been unaware of the full implications of the American separation doctrine, and through a series of decisions have recognized that the Commonwealth Parliament may empower the Executive to legislate by regulation, effectively establishing such delegated authority.

In discussing the constitutional framework, the Court noted that the logical difficulty inherent in the constitutional design had not been addressed. According to Justice Dixon, the practical outcome was that, despite the wording of the Australian Constitution, the principle of legal symmetry was set aside in favour of common sense. He explained that a Dominion legislature originated either from a commission issued by the British Crown exercising its prerogative or from an Act of the British Parliament. Because of this origin, the Dominion legislature could not be regarded as a supreme and sovereign body in the same manner as the British Parliament, which holds supreme and sovereign authority. Consequently, the powers of the Dominion legislature were limited by the instrument that created it, and it could not exceed those limits. Nevertheless, the idea of a supreme, sovereign legislature was deeply ingrained in the British imagination, leading people to attribute to such a subordinate legislature, within its own jurisdiction, all the qualities of the Imperial Parliament. Justice Dicey, in the ninth edition of his work Law of the Constitution (page 112), described these legislatures as “within their own sphere, copies of the Imperial Parliament.” The Court placed great significance on this observation and indicated that it had been reinforced by numerous judicial decisions, which the Court was about to examine. Turning to the specific powers of the House of Assembly of Newfoundland, the Court referred to the commission issued by King William IV, which was exercised under his prerogative authority and conferred “the full power to make, constitute and ordain laws, statutes and ordinances for the public peace, welfare and good government of the Island.” In the case of Kielly v. Carson (1841 4 Moo. P.C. 84), Baron Parke remarked that it was undisputed and therefore conceded that the sovereign possessed not only the right to appoint magistrates, establish corporations and courts of justice as could be done under English common law, but also the authority to create a local legislative assembly. This assembly was subordinate to the Parliament of the United Kingdom, yet supreme within the colonial limits for governing its inhabitants. The Court then cited Phillips v. Eyre (1870 L.R. 6 Q.B. 1), where Willis J. affirmed that a properly constituted local legislature, whether situated in a settled or conquered colony, possessed the force of sovereign legislation on matters within its competence and jurisdiction, though such legislation remained subject to control by the Imperial Parliament. The Court further noted that a compelling argument had been advanced in Burah’s case (1878 5 I.A. 178), which was reported under the title The Empress v. Burah (1877 I.L.R. 3 Cal. 63).

In the decision reported in I.L.R. 3 Cal. 63, the Court examined the validity of Act XXII of 1869, which had been enacted by the Governor-General in Council. Section 2 of that Act stipulated that it would become effective on such date as the Lieutenant-Governor of Bengal might specify by a notification published in the Calcutta Gazette. Section 4 provided that the territories called the Garo Hills were to be removed from the jurisdiction of the Courts and from the control of the revenue offices in the areas administered by the Lieutenant-Governor of Bengal, and that the law applicable to those Courts and offices would no longer apply to the Garo Hills. The Act continued with Sections 8 and 9, which read as follows: “Section 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 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 from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills and to such portion of the Khasi Hills as for the time being forms part of British India.” Every such notification was required to specify the boundaries of the territories to which it applied. On 14 October 1871, exercising the authority conferred on him by Section 9, the Lieutenant-Governor extended the Act to the Khasi and Jaintia Hills and thereby excluded those hills from the jurisdiction of the courts. In 1876 Burah was convicted of murder in the Khasi and Jaintia Hills and was originally sentenced to death by the Deputy Commissioner; the death sentence was later commuted in April 1876 to transportation for life. On 9 July 1876 Burah filed a petition of appeal from jail before the Calcutta High Court. The appeal raised two questions: first, whether the Governor-General possessed the power to remove the district from the jurisdiction of the High Court; and second, assuming such power existed, whether the Act authorized the Governor-General to empower the Lieutenant-Governor, by notification, to extend the provisions of the Act to the Khasi and Jaintia Hills. The Full Bench of the High Court, sitting as a Full Bench, answered the first question unanimously, holding that the Governor-General in Council did have the authority to remove the district from the High Court’s jurisdiction. On the second question, the majority of the Court—comprising Justices Markby, Kemp, Ainslie and Jackson—found that Act XXII of 1869 was invalid because the Governor-General in Council had no power to delegate its legislative functions to the Lieutenant-Governor in the manner that the Act attempted. Chief Justice Garth C.J. and Justices Macpherson and

Pontifex JJ took a view that differed from the majority. The judgment that formed the backbone of the majority opinion was delivered by Markby J. In his opinion, Markby J held that the statute in question did not show “a final determination on the part of the legislature that the jurisdiction of the High Court should be taken away” from the Khasi and Jaintia Hills. He explained that when the legislature decided it was convenient to remove the Garo Hills from the jurisdiction of the Courts, it only entertained the possibility that a similar removal might be appropriate for the Khasi and Jaintia Hills, but it deliberately left that question entirely open for determination by the Lieutenant-Governor of Bengal. Markby J specifically pointed out, referring to pages 81-83 of the record, the contrast in wording between section 2 and section 9 of the Act. At page 85 he further observed that the legislature did not make a conclusive decision to exclude the ordinary courts’ jurisdiction in the Khasi and Jaintia Hills, nor did it express any definite opinion on the matter; instead, it placed the final decision in the hands of the Lieutenant-Governor, granting that official absolute and unrestricted discretion. On page 86 the judge noted that the Indian legislature was not a sovereign body in its own right but exercised sovereign authority only through delegation. After discussing the distinction between written and unwritten constitutions and outlining the duties of the Court, Markby J examined the theory of agency and the delegation of legislative power from the British Parliament to the Indian Legislature. He concluded, at page 98, that the Indian Legislature could not alter the legislative machinery without affecting the provisions of the various Acts of Parliament that had established that machinery, and that any such alteration, by consensus, would render its Acts void. Among the dissenting judges, the principal judgment was delivered by Garth C.J. At page 139 the Chief Justice remarked:

“No doubt, as soon as the fact is once established, that an Act of the 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 is established by 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 Empire to the Governor-General. That, in my opinion, would not be a law at all within the meaning of the statute. It would simply be an abdication of their legislative powers in favour of the Governor-General directly at variance with the language and plain meaning of the Councils Act; and I should say the same of a similar transfer of their powers with regard to any portion of the Indian Empire.”

Following this extensive quotation, Garth C.J. proceeded to refer to legislative practice and the necessity of delegating powers, continuing his analysis on the next page.

In this part of the judgment, the Court observed that the legislature may create significant trusts, but those trusts were not to be regarded as absolute or irrevocable. It explained that Her Majesty in Council retained the power to veto any order made by the Governor-General in Council if the advisers to the Crown did not approve of it. Furthermore, the Court noted that the Government was always positioned to monitor the way in which powers that had been delegated were being exercised. If those powers were exercised imprudently, contrary to the intention of the legislature, or if the exercise of the powers produced results that were inconvenient in any respect, the Government could, by passing another Act, either recall the delegated powers or correct the inconvenience that had arisen.

The Court then turned to several statutes that had granted to the local governments of the non-regulation provinces powers comparable to those previously described. Those statutes authorised the local authorities to abolish existing procedural systems at their discretion, to introduce new procedural regimes, and, in certain instances, to amend or modify the statutes themselves in any manner they deemed appropriate, thereby effecting the introduction of different law within their respective provinces. The learned Chief Justice, in his observations, remarked that each of those statutes effectively amounted, in one sense, to a transfer of legislative power because the legislature, in each case, entrusted to another person or body the making of laws and regulations that the legislature itself might have enacted. The Crown appealed the matter to the Judicial Committee, and the proceedings were reported under the citation Queen v. Burah [(1878) 5 I.A. 178]. It was argued on the appeal that the Privy Council’s decision in that case implicitly, yet clearly, rejected the power of the Indian Legislature to delegate legislative authority. Consequently, it became necessary to scrutinise the observations made by the Privy Council. After summarising the facts and disposing of certain issues that were not material to the present purpose, Lord Selborne, delivering the judgment of the Privy Council, referred to the majority’s reasoning that section 9 of the 1869 Act was a delegation of legislative power rather than legislation itself, and discussed the doctrine of agency that the majority had relied upon. He then rejected the distinction drawn by the majority between section 2 and section 9 of the Act, stating that the majority’s doctrine was erroneous and rested on a mistaken view of the powers of the Indian Legislature and of the nature and principles of legislation. Lord Selborne emphasized that while the Indian Legislature’s powers were expressly limited by the Imperial Parliament Act that created it, and it could do nothing beyond those limits, when it acted within those limits it was not an agent or delegate of the Imperial Parliament but possessed, and was intended to possess, plenary legislative powers comparable in scope and nature to those of Parliament itself.

In this case, the Court observed that the powers conferred on the Indian Legislature were of legislation, extensive and of the same character as those possessed by Parliament itself. The judgment explained that Lord Selborne, at pages one hundred ninety-three and one hundred ninety-four, set out a test for determining the validity of an enacted law and the scope of the Court’s authority to review it. He stated that when a question arises as to whether the prescribed limits have been exceeded, the courts must inevitably decide that question by examining the instrument that positively created the legislative authority and negatively restricted it. According to his formulation, if the action taken is legislation that falls within the general scope of the affirmative words granting the power, and if it does not breach any explicit condition or restriction that limits that power—including any conflicting Act of the Imperial Parliament—then no court of justice may further investigate, nor may it expand those conditions by constructive interpretation.

Having addressed the grounds on which the majority of the High Court had based its decision, Lord Selborne went on to affirm that the Governor-General in Council could not, by any form of enactment, create in India a new general legislative authority that was not established or authorised by the Councils Act. He emphasized that, in his view, no such creation or attempt occurred in the case before the Court. He then clarified what had actually been accomplished by Act XXII of 1869, noting that the powers conferred upon the Lieutenant-Governor, however large, should not be thought to derive their effectiveness from any legislative source other than the Governor-General in Council. The entire operation, he explained, was directly and immediately derived from Act XXII of 1869 itself. The proper legislature, having exercised judgment regarding the place, person, laws and powers, legislated conditionally on all those matters; once the conditions were satisfied, the legislation became absolute. He added that where plenary legislative powers exist over particular subjects—whether in an imperial or a provincial legislature—they may be exercised either absolutely or conditionally, according to his judgment. Finally, Lord Selborne referred to the legislative practice of entrusting such powers to trusted individuals, providing several examples of legislation he considered valid, although the majority of the High Court had deemed those instances illegal. The majority of the High Court, as noted, had held that section nine of

In this case the Court observed that Act XXII of 1869 and the accompanying notification were challenged on the basis that they amounted to an improper delegation of legislative power. The argument could be rebutted in three alternative ways: first, by asserting that the Legislature was not acting as an agent of Parliament; second, by contending that the Legislature had not actually delegated any of its powers; and third, by maintaining that the Legislature possessed full authority to delegate. The Privy Council based its decision on the first two contentions and did not reject the third. In fact, the wording employed by Lord Selborne suggested the opposite view. The Court explained that if the Privy Council had intended to reject the concept of delegation, it would not have drawn a comparison between the powers of the Indian Legislature and those of the Imperial Parliament, nor would it have referred to the positive provisions of the instrument that created the legislature and the negative conditions restricting its powers as criteria for testing the validity of the Act, and it would not have stated that the Court was not entitled to examine the issue further. Moreover, the Privy Council affirmed that the Governor-General in Council could not, by a general legislative act, create a new legislative power, and it held that the effectiveness of a Lieutenant-Governor’s order depended on the authority of the Governor-General in Council. From this the Court inferred that, after rejecting the grounds relied upon by the majority of the High Court, the Privy Council acknowledged the existence of a power to delegate, but limited the scope of that power. The Court further noted that the Privy Council, in different language, echoed Chief Justice Garth’s observation that the Indian Legislature had abdicated its legislative functions without retaining control over the actions of the person to whom the power was delegated. At that time the Indian Legislature, represented by the Governor-General in Council, was not a body accountable to the people; it was dominated by the executive and subordinate to the British Parliament. Nevertheless, English judges, guided by their constitutional belief in legislative supremacy, attributed to the Indian body, within the limits set by Parliament, the attributes of the supreme and sovereign British Parliament and treated it as a mirror of that Parliament. The Court indicated that this viewpoint would be clarified in later Privy Council decisions, some of which were decided by the same Lords who had sat in the Burah case. The discussion then turned to Russell v The Queen [(1880) L.R. 7 App. Cas. 829], which involved the Canadian Temperance Act of 1878. The Court outlined the procedure for bringing Part I of that Act into operation, namely that a petition signed by at least one-fourth of the voters of a county or city requesting the application of the Act to that area had to be submitted.

The procedure for bringing the first part of the Act into force required three steps. First, a petition signed by at least one-fourth of the eligible voters in a county or city had to be submitted. Second, the Governor-General was required to issue a proclamation ordering that a poll be taken on the petition. Third, if the majority of voters adopted the petition, the Act would then become applicable to that particular county or city. The appellants’ counsel argued that, even assuming the Parliament of Canada possessed the authority to enact legislation prohibiting and regulating the sale of intoxicating liquors, it could not lawfully delegate the power to activate the prohibitory and penal provisions of the Act to a majority of electors in individual counties or cities. Sir Montague E. Smith rejected this contention on page 835, stating that the objection rested on a misunderstanding. He explained that the Act did not delegate any legislative power at all; instead, it embodied the complete legislation concerning the matters it addressed. The clause requiring a petition of a majority of electors to trigger certain provisions merely set a condition, and that condition, together with all consequent effects, was enacted by Parliament itself. He further observed that such conditional legislation is often convenient, not unusual, and that Parliament of Canada retains the authority to legislate on any subject within its competence, even when the law’s operation depends on a subsequent public vote.

The Court then highlighted two important points. First, the Privy Council did not regard conditional legislation as an act of delegating legislative power, although such legislation can, in effect, amount to a delegation; consequently, the Council used the term “delegation” in a stricter sense than its ordinary popular meaning. Second, Lord Mason emphasized that the proper test for a law’s validity is whether the subject matter lies within the legislative competence of the enacting body. He cited The Queen v. Burah as authority and examined the British North America Act, focusing on sections 91 and 92, which allocate legislative powers between the Dominion and the provinces. He concluded that the Temperance Act did not fall within the exclusive provincial subjects and was therefore intra vires the Parliament of Canada. The Court also referred to the Ontario Liquor License Act of 1877, which authorized License Commissioners to make regulations, define offences, and impose penalties. The appellants contended that the provincial legislature could not delegate such powers to the Commissioners, invoking the maxim “delegata potestas non potest delegare.” The Privy Council dismissed this argument in Hodge v. The Queen, with Lord Fitz-Gerald noting that the objection stemmed from a fundamental misunderstanding of the provincial legislature’s nature and its plenary authority within the limits set by the Imperial Parliament.

In this case the Court explained that the objection raised by the appellants was based on a complete misunderstanding of the true character and position of the provincial legislature. The Court held that the provincial legislature was not a delegate of, nor was it acting under any mandate from, the Imperial Parliament. When the British North America Act created a legislature for Ontario and gave its legislative assembly exclusive authority to make laws for the province about the matters enumerated in section 92, it conferred powers that were not to be exercised as delegations from the Imperial Parliament but as full authority within the limits prescribed by section 92. Within those constitutional limits the provincial legislature is supreme and possesses the same type of authority that the Imperial Parliament or the Dominion Parliament would have exercised if it chose to empower a municipal body to make by-laws or resolutions on the subjects specified in the enactment, for the purpose of giving effect to the statute. The Court further observed that such ancillary authority is necessary for legislation to function, because without it attempts to provide detailed mechanisms for implementation could become oppressive or could fail altogether. The Court also rejected the argument presented at the bar that a legislature that commits important regulations to agents or delegates thereby effaces itself. It stated that the legislature retains its full powers and may at any time dissolve the agency it has created, replace it, or take the matter directly under its own control. Decisions about how far to use subordinate agencies and how long to maintain them are matters for each legislature, not for the courts. Regarding the contention that the provincial legislature lacked power to confer authority on the License Commissioners to impose imprisonment with hard labour for breach of newly created rules or by-laws, the Court answered that because the provincial legislature itself possessed the power to impose such imprisonment, it also had the power to delegate that same authority to the municipal body it created, namely the License Commissioners. Consequently the Court concluded that by-laws or resolutions issued by the Commissioners were lawful and that the power to enforce them was both necessary and legitimate. No one can deny that the Act in question actually transferred genuine legislative power to the License Commissioners, since the power to create offences and attach penalties is an integral part of legislative authority. The Privy Council, in its judgment, treated this as a delegation of legislative power that was ancillary to the primary legislation and co-extensive with it.

In this case the Court observed that, provided the legislature had not eliminated its own authority, it was permissible for the legislature to delegate legislative powers, and that the legislature alone decided the extent and duration of any such delegation, matters which were not for the Court to determine. The Court noted that these statements supported the observations made by Garth C.J. in Empress v. Burah and gave clear expression to the earlier pronouncement of the Privy Council in Queen v. Burah, page 194, which explained that the legislature could not create a new legislative power equipped with general authority unless such power was created or authorised by the Councils Act. The Court also pointed out that Sir Barnes Peacock and Sir Robert P. Collier, who had sat on the Board that decided Queen v. Burah, were also members of the Board that decided Hodge v. The Queen. The issue examined in Powell v. Apollo Candle Company Limited (1885) L.R. 10 App. Cas. 282 concerned whether section 133 of the Customs Regulation Act, 1879 of New South Wales, which allowed the Governor to levy a duty on an article that the Collector considered to have characteristics similar to a dutiable article, was invalid because the colonial legislature had allegedly exceeded the powers granted by section 45 of the Constitution Act of New South Wales, which permitted only the legislature to impose and levy customs duties. In delivering the Privy Council judgment, Sir Robert P. Collier referred to Queen v. Burah and Hodge v. The Queen, cases in which he had participated, and observed at page 290 that “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 Legislature. It is a legislature restricted in the area of its powers, but within that area unrestricted and not acting as an agent or a delegate.” The Court then noted, at page 291, after stating that duties imposed under the Order in Council were actually imposed by authority of the Act that authorized the Order, that “The legislature 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.” This reaffirmed the principle that, except when the legislature extinguishes its own authority, it may freely delegate its legislative powers. As long as the legislature maintains its own controlling power, no objection can be raised to delegation, because any mistake or misuse by the delegate can be corrected immediately by the legislature either by removing the delegate, appointing a new one, or exercising the power itself. The observations of Lord Selborne in Queen v. Burah were also cited in support of this view.

In this case the Court observed that the principle concerning a legislature establishing a new legislative power must be interpreted in accordance with later decisions and the approach previously suggested. The Court further noted that the principle that a provincial legislature of a Dominion remains supreme within the boundaries set by section 92 of the Act of 1867 was reaffirmed by Lord Watson while delivering a Privy Council judgment in The Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, reported in L.R. (1892) A.C. 438 at page 442. The Court then turned to Baxter v. Ah Way, reported in (1909) 8 C.L.R. 626, as an illustration of the application of the principle of conditional legislation. Under the Australian Customs Act of 1901, section 50 prohibited the importation of “prohibited imports.” Section 52 listed the prohibited imports in several sub-sections, and sub-section (g) defined “All goods, the importation of which may be prohibited by proclamation.” The defendant was charged with violating sections 50 and 52(g) by importing opium suitable for smoking, which was alleged to be a prohibited import.

During the trial before the High Court, the prosecutor introduced into evidence a Commonwealth Gazette containing a proclamation issued by the Governor-General in Council under section 52(g) declaring that such opium was a prohibited import. An objection was raised to the validity of the proclamation on the ground that sub-section (g) of section 52 exceeded the powers of the Commonwealth Parliament. The matter was referred to the Full Court, which held that sub-section (g) did not constitute a delegation of legislative power but represented conditional legislation. Griffith C.J., delivering the judgment at page 632, stated that it is evident that every legislature, in a sense, delegates some of its functions and that it is unreasonable to claim that a legislature cannot create a municipal authority to make by-laws, a public authority to make regulations having the force of law, confer on the Governor-in-Council power to make regulations, or empower judges to make rules of court. He explained that such arrangements are a form of delegation because they authorize another body to perform functions the legislature could perform itself, and it is now untenable to argue that such delegation, if it occurs, is objectionable. His Lordship subsequently referred to The Queen v. Burah, holding that the provision was indeed conditional legislation. The challenge that Chapter I, Part I, section 1 vested legislative power exclusively in the Federal Parliament and therefore barred any delegation was rejected by the learned Chief Justice, who clarified that the section is merely introductory to the constitutional provisions that govern the legislature.

In response to the argument that the legislative authority of the Commonwealth Parliament was inferior to the authority exercised by the British Parliament, Justice O’Connor answered at page 639 that the contention could not be sustained. He asked whether it could be seriously asserted that, when a legislature such as the Commonwealth’s was created with plenary powers and empowered to address a particular subject-matter, the essential power traditionally required for exercising that legislative function in England and in several Australian States should be denied. Justice O’Connor explained that interpreting the grant of power to the Commonwealth Parliament in a limited manner would, in his view, amount to a complete denial of the full force and effect of the constitutional text. Justice Isaacs then referred to the prevailing legislative practice and to the principles articulated in Hodge v. The Queen, The Queen v. Burah and Powell v. Apollo Candle Co., concluding that the situation before the Court was precisely covered by those earlier decisions. Justice Higgins concluded his judgment by observing that the Federal Parliament possessed, within its jurisdiction, the full authority to frame its laws in any manner, employing any agent, agency or machinery it deemed appropriate for the peace, order and good government of Australia.

The Court subsequently examined the case of In re George Edwin Gray, reported in 1918 at 57 S.C.C. 150 and 42 D.L.R. 1. Section 6 of Canada’s War Measures Act of 1914 provided that the Governor-General in Council held the power to do and authorise acts and to make orders and regulations deemed necessary or advisable for the security, defence, peace, order and welfare of Canada because of a real or apprehended war. The provision further clarified that the Governor-General’s powers extended to all matters listed in the subsequent enumeration of subjects, without limiting the generality of the language. The section enumerated certain subjects for which the Governor-General in Council could make regulations, while the legislature itself set no policy concerning those subjects, effectively granting a carte blanche to the Governor-General. Exercising those conferred powers, the Governor-General in Council on 20 April 1918 issued an Order in Council containing various regulations. Those regulations amended and modified portions of the Military Services Act of 1917, ordering a person named Grey, who had previously received an exemption under the 1917 Act, to report for military duty; Grey’s failure to comply subsequently gave rise to further legal proceedings.

After the individual failed to report for duty, the authorities took him into custody. Subsequently, a petition for a writ of habeas corpus was filed on his behalf. The submission was based on the argument that while it was generally accepted that administrative bodies could be authorised to issue regulations to implement the purposes of a statute, such regulatory power could not constitutionally be granted so broadly as to permit the alteration or repeal of the explicit provisions of the statute itself. In addressing this contention, the Chief Justice, Fitzpatrick, responded at page 156 by citing Rex v. Halliday, [1917] A.C. 269, and observed that Parliament cannot wholly abandon its legislative functions. He affirmed that Parliament may, within reasonable limits, delegate authority to the executive government, but that any delegated power must remain subject to parliamentary oversight and must be exercised within the scope of the legislative purpose that authorised it.

The dissenting judge, Idington, acknowledged that delegation of legislative authority through regulations could be permissible when it is clearly understood as such, yet he warned that an unrestricted surrender of the people's will to an autocratic power would contravene the very principle they sought to protect. Duff, writing at page 170, rejected the description of the enactment as an outright delegation of Parliament’s entire legislative authority to the Governor in Council, emphasizing that Parliament retains the capacity to revoke the delegated powers at any time and to nullify any actions taken under them. He further explained that the subordinate body exercising the delegated authority functions as an agent of the legislature, and its acts acquire legal force only because of the antecedent legislative declaration, whether expressed or implied. Anglin, referring to Powell v. Apollo Cannon Company, remarked that a complete abdication of Parliament’s legislative responsibilities is so inconceivable that its constitutionality need not be examined. He added that, short of such abdication, a limited delegation falls within the broad scope of legislative jurisdiction, as illustrated by passages from Hodge The Queen and The Queen v. Burah. Finally, Anglin cited Section 92(1) of the British North America Act, 1867, which empowers a provincial legislature to amend the constitution, except with respect to the office of the Lieutenant-Governor, and noted the implications of the Initiative and Referendum Act passed by the Manitoba legislature, which required the Lieutenant-Governor to submit a proposed law to a distinct electorate, thereby raising questions of legislative authority.

In the matter before the Court, it was observed that the Lieutenant-Governor was required to present a proposed piece of legislation to a body of voters that was completely separate from the legislature, and that this requirement left the Lieutenant-Governor without any power to stop the proposal from becoming law if the voters approved it. The legality of the Manitoba Legislature’s Initiative and Referendum Act was subsequently examined in the case In re The Initiative and Referendum Act [[1919] A.C. 935]. After reviewing the relevant provisions of the British North America Act, 1867, the Judicial Committee of the Privy Council held that the Manitoba statute was beyond the legislative authority of the Manitoba Legislature; that determination alone was sufficient to dispose of the appeal. Nevertheless, Lord Haldane offered further comments without reaching a final ruling, stating: “Section 92 of the Act of 1867 entrusts legislative power in a province to its legislature, and to that legislature only. No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence.” In that passage a clear distinction was drawn between a legislature delegating part of its authority to subordinate bodies while retaining its own legislative capacity, and a legislature attempting to create a wholly new legislative power and vesting it with its own capacity, a power that had not been granted by the parent statute. Earlier authorities, together with the present decision, indicated that there was no objection to the former form of delegation, whereas the latter form was impermissible because it required the legislature to transfer its own legislative capacity, thereby failing to preserve that capacity intact. The Court then turned to the case of The Victorian Stevedoring and General Contracting Co. v. Dignan [(1931) 46 C.L.R. 73], which concerned section 3 of the Transport Workers Act, 1928-29, of Australia. That provision provided that “The Governor-General may make regulations, not inconsistent with this Act, which, notwithstanding anything in any other Act, but subject to the Acts Interpretation Act, 1901-1918, and the Acts Interpretation Act, 1904-1916, shall have the force of law, with respect to the employment of transport workers, and in particular for regulating the engagement, service, and discharge of transport workers, and the licensing of persons as transport workers, and for regulating or prohibiting the employment of unlicensed persons as transport workers, and for the protection of transport workers.” Exercising the authority granted by that section, the Governor-General on 26 June 1931 issued the “Waterside Employment Regulations.” Those regulations, among other provisions, stipulated that transport workers of certain categories should be given priority in employment, a rule that conflicted, to a certain extent, with an award issued by the Court of Conciliation and Arbitration under a previous Act.

In the matter before the Court, the appellants had been found guilty of violating regulations that had been issued under section 3 of the Transport Workers Act, 1928-29. The central issue presented for determination was whether section 3 was ultra vires because it purported to delegate legislative authority to the Governor-General. The Court rejected the contention that the provision was beyond the power of the legislature and held that the objection could not succeed. In reaching this conclusion, the Court relied upon its earlier decision in Roche v. Kronheimer [(1921) 29 C.L.R. 329], which it regarded as authoritative for the principle that subordinate law-making powers may lawfully be vested in the Executive branch. Justice Dixon, speaking at page 100, reiterated the view first expressed in the Roche case. He explained that a statute which confers upon the Executive the authority to legislate on a matter that falls within a subject of the Parliament’s legislative competence is, nevertheless, a valid law with respect to that subject. He further observed that the constitutional allocation of legislative, executive, and judicial functions does not limit Parliament’s ability to enact such a law. However, Justice Dixon cautioned that the validity of a law delegating power to the Executive does not depend solely on the breadth of the delegation. He stressed that a delegation will be invalid if the subject matter is so wide or uncertain that the enactment fails to relate to any specific head or heads of legislative power, or if it extends beyond the limits of federal authority.

Justice Dixon also remarked that, under English law, the effectiveness of subordinate legislation depends not merely on the initial enactment but also on the continued operation of the authorising statute, which serves as the source of obligation and reflects the ongoing will of the legislature. He then referred to the emphasis placed in the cases of Apollo and Hodge on the legislature’s retention of full control and its capacity to reclaim authority over delegated matters. Justice Evatt, addressing the judiciary’s duty to recognize the nation’s needs and to avoid obstructing the legislative and executive branches, expressed his view at page 118. He explained that parliamentary authority extends beyond the issuance of binding commands by Parliament itself; Parliament may also empower any person or body it chooses to issue such commands. In his reasoning, “legislative power” includes the power to deposit or delegate legislative authority, a concept inherent in the doctrine of parliamentary sovereignty. Nevertheless, he affirmed that the power granted to a delegate or depository may be withdrawn by the Parliament that created it, and that, in this sense, Parliament must preserve its own capacity intact, as noted in the decision of In re Initiative and Referendum Act. After outlining this perspective, the Court proceeded to apply the established principles to the question before it.

In the judgment, the Court observed that when Parliament enacts a law that lies within its constitutional authority, it may, as part of that legislation, confer upon a subordinate body the power to formulate regulations that will implement the scheme set out in the statute. The Court then posed the constitutional question of whether the Constitution implicitly forbids Parliament from expanding the scope of powers granted to such subordinate authorities. In response, the learned Judge answered that, in his view, every delegation by the Commonwealth Parliament of authority to make rules and regulations—whether the delegate is the Executive government or another body—is itself a grant of legislative power. He explained that the true nature and quality of the Commonwealth’s legislative power necessarily include, as part of its content, the power to confer law-making authority on entities other than Parliament itself. He continued that if Parliament may lawfully delegate the power to issue binding commands to the Executive or other agencies, then an increase in the extent of that delegated power cannot invalidate the original grant. While he recognised that the breadth of the delegated power often constitutes a material factor in assessing the validity of the enabling legislation, he stressed that this consideration is separate from any absolute restriction on parliamentary action that might be inferred from the doctrine of separation of powers. (451)

His Lordship further remarked, at page 119, that the legislative power of the Commonwealth is plenary, yet it must be possible to characterise every law passed by Parliament as a law concerning one or more of the specific subjects enumerated in sections 51 and 52 of the Constitution. He noted that the matters relevant to determining an Act’s validity could be grouped under seven categories, although the details of those categories were not reproduced in full. Within categories 5 and 6, he distinguished between a law that addresses a particular subject and a law that concerns the legislative power to legislate on that subject. According to his analysis, a statute is valid if it is a law concerning the granted subject-matter, even though it also pertains to the exercise of legislative power. Concluding at page 121, he held that the Commonwealth Parliament is not competent to “abdicate” its legislative powers. This restriction does not arise because Parliament is obligated to exercise all of its legislative functions, nor because the doctrine of separation of powers bars Parliament from authorising other bodies to make laws or by-laws—practices that occur in almost every statute. Rather, the limitation stems from the requirement that every law enacted by Parliament must qualify as a law concerning one or more of the subjects listed in the Constitution.

The Court observed that the Constitution required Parliament to retain its law-making power and could not surrender all of that power to another body, because such a surrender would fail the test of constitutional validity. The Court agreed that the legislature must not abdicate its authority; it must keep the ability to withdraw any legislative power that it had previously conferred on a subordinate authority whenever the need arose. The Court noted that the cited authorities clearly demonstrated that, apart from an outright abdication, Parliament was free to delegate its legislative powers. It was not for the Court to determine the extent of the delegation or the period for which the delegation could continue. The Court also affirmed that any law made by the legislature had to fall within the scope of its constitutional legislative power and could not exceed that scope. However, the Court found no doctrinal basis, either in principle or in precedent, for the artificial distinction between a law that concerned a subject and a law that concerned the exercise of legislative power over that subject. The Court pointed out that this distinction conflicted with the reasoning of Lord Fitz-Gerald in Hodge v. The Queen, which had been previously cited. In the Court’s view, the power to legislate on a subject inherently included the power to delegate the making of laws on that subject to another body. The Court further noted two factual points: first, the Transport Workers Act was not an emergency measure enacted during or on the eve of war, but a peacetime statute passed in 1928-1929; second, the challenged section of the Act merely listed the subjects on which the Governor-General could make regulations and, using the language of American decisions, did not itself prescribe any policy or set any standard that the delegated regulations had to follow. Despite this, the High Court of Australia had upheld the validity of that section. The Court recorded that Justice Evatt, on page 123, described the section as a law concerning the Commonwealth’s legislative power, yet after examining the circumstances he concluded that the section could also be characterized as a law concerning trade and commerce with other countries or among the States. While the Court respected Justice Evatt’s observations, it held that the circumstances he referred to merely provided the occasion and possibly some justification for the delegation, but the section itself did nothing more than delegate regulatory power. It laid down no policy or standard and was therefore simply a law concerning the exercise of legislative power and nothing else; according to Justice Evatt’s own classification, if that classification were correct, the section should have been held to be

The Court held that the provision could not be regarded as valid. It observed that describing section 3 as a law concerning any of the subjects listed in that provision strained the ordinary meaning of the words. In the Court’s view, the only basis on which section 3 could be sustained was the straightforward principle that, except for a self-effacing delegation, the delegation of power was permissible.

Turning to authority, the Court cited Croft v. Dunphy, reporting that the case reaffirmed the rule that a colonial legislature possessed full sovereignty within its own sphere and that, once legislation fell within the legislature’s competence, no further inquiry was required. The Court quoted Lord Macmillan’s passage at page 163, in which he explained that when a subject of legislation is among those that the Dominion Parliament may validly regulate for the peace, order and good government of Canada, or is one of the subjects enumerated in section 91 of the British North America Act, the judges see no justification for limiting the scope of such legislation any more than would be done for legislation passed by a completely sovereign state.

Applying this principle, the Court examined Shannon v. Lower Mainland Dairy Products Board. That case concerned the Natural Products Marketing (British Columbia) Act, 1936, which authorised the Lieutenant-Governor in Council to create a Central Marketing Board. The Board could approve schemes for controlling and regulating the transport, packing, storage and marketing of natural products, could establish subsidiary marketing boards to administer those schemes, and could empower those boards to set and collect licence fees. The Court noted that the Act expressly allowed the Lieutenant-Governor in Council to further delegate legislative power. The appellants, who were dairy farmers affected by a milk-marketing scheme, refused to obtain a licence from the Board and sought a declaration that the Act exceeded the authority of the Provincial Legislature. Before the Privy Council, the validity of the Act was challenged on the ground that it delegated legislative powers first to the Lieutenant-Governor in Council and subsequently to the Marketing Boards. Lord Atkin, delivering the Board’s judgment at page 722, rejected the contention that the Provincial Legislature lacked authority to delegate such powers. He described the objection as subversive of the rights that the Provincial Legislature enjoys concerning subjects over which the Constitution assigns legislative competence. He affirmed that within its prescribed domain the Provincial Legislature was as supreme as any other Parliament and that it was unnecessary to catalogue the countless instances in which provincial, dominion and imperial legislatures have entrusted similar powers to various persons and bodies.

The Court further observed that the Privy Council not only sustained the validity of a single delegation of legislative authority but also upheld the legitimacy of a subsequent sub-delegation of that authority.

The Court examined the scope of delegated legislative authority by referring to the decision in Wishart v. Fraser [(1941) 64 C.L.R. 470]. In that case the appellant had been convicted of an offence punishable under regulation 41 of the National Security (Central) Regulations, 1939-1940, which had been made by the Governor-General in Council of Australia pursuant to section 5 of the National Security Act, 1933. Section 5 conferred upon the Governor-General in Council the power to make regulations that would secure public safety and the defence of the Commonwealth and its territories, and to prescribe all matters that were necessary or convenient to be prescribed for the more effective prosecution of the war. It was noted that the provision merely authorised the Governor-General in Council to formulate regulations for public safety and related purposes, but it did not prescribe any policy nor did it establish any standard that the regulations had to follow. The provision was therefore even more general than section 6 of the Canadian War Measures Act, 1914, which, while also referring to public safety, went further by enumerating several specific subjects on which regulations were required to be made. The Court observed that Rich, A.C.J., with whom Starke J. agreed, held that the issue had already been resolved by the earlier case of Victorian Stevedoring & General Contracting Company v. Dignan [(1931) 46 C.L.R. 73]. When counsel suggested that section 5 was so wide or uncertain in its subject-matter that the enactment could not be said to be a law concerning naval and military defence or any other head of legislative power, Dixon J. replied at page 485: “This suggestion cannot 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 a valid exercise of the defence power.” The other learned judges adopted the same view. The Court further held that the fact that the subject of defence power requires greater latitude for the delegation of legislative authority did not satisfy any alleged requirement that the statute must lay down a detailed policy. The discussion then turned to a later reference concerning the validity of regulations relating to chemicals, which had arisen under the War Measures Act, chapter 286 of the Revised Statutes of Canada, 1927. Section 3 of the revised statute was worded almost identically to section 6 of the War Measures Act, a provision that had been considered in George Edwin Gray’s case [57 S.C.R. 150]. Section 3 gave the Governor-in-Council the authority to do and authorise such acts and things and to make such orders and regulations that, by reason of a real or apprehended war, he deemed necessary for the security, defence, peace-order and welfare of Canada. Without prejudice to the generality of those provisions, the section also specified several particular matters on which regulations could be made.

In the present reference the Court examined the validity of a regulation made under the War Measures Act of 1914, a statute whose constitutionality had already been affirmed in the earlier decision known as George Edwin Gray’s case, cited as 57 S.C.R. 150. The question before the Court was not whether the Act itself was ultra vires, but whether the specific chemical regulation fell within the authority granted to the Governor-General in Council and whether the Governor-General in Council possessed the power to sub-delegate its statutory authority to subordinate bodies. Chief Justice Duff, at the twelfth page of the report, observed that the executive bears the duty, as with any other measure it may be required to consider, to determine, in light of the circumstances confronting it, whether it deems it necessary or advisable for the safety of the State to appoint subordinate agencies and to define the scope of their powers. He warned that granting broad powers in general terms always carries a risk of abuse, yet under the War Measures Act the ultimate responsibility for the executive’s actions remains with Parliament, which does not relinquish any of its powers or its legal and constitutional control over the executive. Justice Rinfret, on page seventeen, affirmed that the powers conferred upon the Governor-in-Council by the War Measures Act constitute a law-making authority, permitting the enactment of measures deemed necessary and advisable because of war, and that when acting within those limits the Governor-in-Council wields plenary legislative powers comparable in magnitude and nature to those of Parliament itself, as noted by Lord Selborne in The Queen v. Burah.

Quoting the earlier decision in Hodge v. The Queen, reported as (1883) L.R. 9 App. Cas. 117, Justice Rinfret continued on page eighteen by stating that Parliament has not abandoned its general legislative powers, nor has it indicated any intention to surrender control, and in fact it has made no such abandonment. The subordinate instrumentality created by Parliament to exercise the delegated powers remains directly accountable to Parliament for the continuation of its official existence. Turning to the doctrine of agency, the Court explained that the maxim “delegatus non potest delegare” is a rule of agency law and does not apply to a statutory legislative authority conferred by Parliament. Because the War Measures Act was designed to be workable, the power of delegation is considered an integral part of the powers granted by Parliament in the Act. Consequently, the Governor-in-Council is not a mere delegate; the Act represents a devolution of Parliament’s legislative power, allowing it, within the prescribed limits, to legislate as Parliament itself could, and thereby to delegate its powers, whether legislative or administrative.

In this part of the judgment, Justice Davis reaffirmed a principle that had been set out earlier in the report. He stated that the constitutional system retained an essential safety valve, because Parliament had not withdrawn from its essential functions. He explained that, in effect, the House of Commons, acting as the people’s representative, possessed the practical authority to amend or repeal the War Measures Act and also to render any order made by the Governor-in-Council under that Act ineffective. Justice Kerwin expressed a closely similar view a few pages later. He warned that if Parliament ever felt that the Governor-in-Council had been given excessively broad powers, the remedy for that situation lay solely within Parliament’s own power to amend or curtail those powers.

The court then turned to the Canadian decision in Shannon, reported in the 1938 Appeal Cases and the 1939 All India Reporter. In that case the authority granted to the Lieutenant-Governor in Council expressly included the power to delegate further authority to others. Despite this delegation, the Privy Council upheld the legislation in question. The court observed that when the power to legislate inherently contains a power of delegation, it follows logically that the recipient of the legislative power must also possess the authority to further delegate as part of the power that was transferred to him. The reasoning adopted by the learned judges in the Canadian case was described as perfectly logical and consistent with the principle of delegated authority.

The discussion then moved to the earlier case of King-Emperor v. Benoari Lal Sarma, reported in 1944 and 1945. The court examined Section 72 of the Ninth Schedule to the Government of India Act, 1935, as read with the India and Burma (Emergency Provisions) Act, 1940. That provision 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 declared that any such ordinance would have the same force as an Act passed by the Indian Legislature. Exercising that authority, the Governor-General on 2 January 1942 issued Ordinance No. II of 1942, known as the Special Criminal Courts Ordinance. The preamble to the ordinance explained that an emergency had arisen which required the establishment of special criminal courts. Section 1(3) of the ordinance stipulated that it would become operative in any province only if the Provincial Government, satisfied that an emergency existed, issued a notification in the Official Gazette declaring the ordinance in force, and that it would cease to be in force when such a notification was withdrawn. Broadly, sections 5, 10 and 16 provided that a special judge, a special magistrate and a summary court were empowered to try offences, categories of offences or particular cases as directed by the Provincial Government or a Crown servant through a general or specific order. Section 26 removed the right of appeal or revision against any order made by those special courts. The respondents in that case, who were all police officers, had been convicted by the Special Magistrate at Jessore and sentenced to two years’ rigorous imprisonment for offences including rioting, assault and acts prejudicial to the police force.

The respondents, who were magistrates at Jessore, had been convicted and sentenced to two years of rigorous imprisonment on charges of rioting, assault and committing prejudicial acts that tended to cause disaffection in the police force. They subsequently filed petitions for revision before the High Court, contending that the Special Criminal Courts Ordinance was ultra vires the authority of the Governor-General. The courts below had failed to recognise that, if the Ordinance were indeed ultra vires, the Special Magistrate’s Court would not be a lawful court at all, and consequently there could be no valid revision of an order issued by such an illegal body. The correct procedural route, in that view, would have been to proceed under section 491 of the Code of Criminal Procedure. The High Court held that the Ordinance was ultra vires, and the majority of the Federal Court of India affirmed that decision. The Crown then appealed to the Privy Council. Although Ordinance No. II of 1942 was replaced after the High Court’s judgment by Ordinance No. XIX of 1943, the Privy Council, because of the significance of the questions raised, chose to determine the validity of the original Ordinance No. II of 1942.

The Ordinance was attacked on several grounds, two of which concerned the question of whether a genuine emergency existed. These objections are set out on page 65 of the record. The first objection argued that the language of section 1(3) indicated that the Governor-General, despite the preamble, was not asserting the existence of an emergency but was instead providing for a future emergency; alternatively, it was claimed that section 1(3) amounted to “delegated legislation” whereby the Governor-General, without lawful authority, attempted to shift the decision as to the existence of an emergency to the Provincial Government rather than deciding it himself. Their Lordships found no valid basis for either of these contentions. Viscount Simon, delivering the Privy Council’s judgment, addressed the first objection on pages 65 and 66. The second objection, as recalled, was that section 1(3) had delegated the determination of whether an emergency existed to the Provincial Government, thereby delegating the essential pre-condition for making the Ordinance. The objection therefore did not allege a delegation of legislative power per se, but rather a delegation of the obligation to decide the emergency upon which the power to enact the Ordinance depended. This issue was examined on pages 66-67. In dealing with this specific objection, Viscount Simon observed: “It is undoubtedly true that the Governor-General, acting under Section 72 of Schedule IX, must himself discharge 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 pointed out, in view of the proclamation under section 102, had power to make laws for a Province.”

Even in relation to matters that would ordinarily be reserved for the Provincial legislature, the Court could not find any legitimate legal objection to the form taken by the Governor-General’s Ordinance. The Ordinance provided that the actual establishment of a special court, as prescribed by its terms, should occur at a time and within the boundaries that the Provincial Government directly concerned deemed necessary. The Court held that this arrangement did not constitute delegated legislation. Rather, it represented a common legislative practice whereby the local application of a statutory provision is decided by the judgment of a local administrative body as to its necessity. The Court then referred to the case of Russell v. The Queen [(1880) L.R. 7 App. Cas. 829]. Counsel for the interveners relied heavily on the quoted passage, particularly its opening sentence, to argue that legislative power could not be delegated in any circumstance. The Court disagreed with that interpretation, noting that the passage must be read in its proper context. The Privy Council’s remarks were intended to reject a specific objection concerning the delegation of the decision as to whether an emergency existed, not to deny any delegation of legislative authority. Moreover, the Court emphasized that section 72 conferred a very special and limited legislative power on the Governor-General, a power that was conditional upon the existence of an emergency, a condition that only the Governor-General could determine. Since the determination of an emergency was not an exercise of legislative power and could not be delegated, the power to make an Ordinance likewise could not be delegated. This explanation clarifies the meaning of the opening sentence of the earlier passage and prevents it from overturning the series of earlier decisions that addressed the delegability of legislative power. Consequently, the cited decision does not illuminate the present question, namely whether legislative power may be delegated at all and, if so, to what extent. The Court further observed, albeit at length, that it would cite several passages from various decisions of the Privy Council and other courts not because any of them are binding, but because they illuminate the underlying legal principles. From those authorities, the Court identified several principles: first, a legislature created by an Act of the British Parliament is not an agent or delegate of that Parliament; second, the power of such a legislature is limited by the Act that constitutes it, and while it cannot exceed that limit, within its scope it is supreme and possesses a breadth comparable to that of the British Parliament.

The Court observed that the legislature created under an Act of the British Parliament possesses the same nature as that of the British Parliament. It then articulated several principles. First, it held that the doctrine of non-delegation, whether based on the separation of powers or on agency theory, does not apply to the British Parliament or to legislatures formed by an Act of that Parliament. Second, it stated that because governments constantly face complex conditions, the power to delegate is necessary and ancillary to the exercise of legislative power, forming an essential component of that power. Third, the Court explained that any act carried out under delegated authority operates directly and immediately by virtue of the law that conferred the delegation, and its effectiveness must be traced back to that original law. Fourth, the Court declared that when a legislature enacts measures that fall within the general scope of the words that grant it authority and that do not breach any explicit condition or restriction, the Court should not further inquire or expand those conditions or restrictions. Fifth, the Court noted that while the legislature is functioning within its prescribed sphere, there is, except as later specified, no degree or limit to its power to delegate its legislative authority; it is for the legislature itself to decide how far to seek assistance from subordinate agencies and how long such assistance should continue, and the Court should not impose any limit on that power of delegation. Sixth, the Court added that the power of delegation is subject only to the qualification that the legislature must not abdicate or efface itself, meaning it may not, while preserving its own capacity, create and endow a new legislative power that was neither created nor authorized by the Act that gave it its existence.

The Court then pointed out that principles (a) and (b) had not been seriously questioned before it, but the controversy centred on principles (c) through (h). It acknowledged that it is conceded that the British Parliament may transfer all of its legislative powers to any other person or body, whether legislative or executive, and thereby efface itself. However, it was argued that the British Parliament can do so because it is a supreme, omnipotent, and sovereign legislature. In contrast, a Dominion Legislature was described as a non-sovereign body that therefore cannot claim to possess all the attributes of sovereignty that the British Parliament possesses. The Court noted that no fewer than eight distinct points of dissimilarity between the sovereign British Parliament and a non-sovereign Dominion Legislature had been brought to its attention, and that a number of textbooks and judicial decisions had been cited in support of this view. Consequently, the Court held that a Dominion Legislature cannot be sovereign in the sense in which the British Parliament is sovereign, for the powers of the former, unlike those of the latter, are limited to its own sphere. Within that sphere the Dominion Legislature is supreme, and its power, as expressed in the quoted words, “is as large and of the”.

In this discussion, the Court noted that Professor Dicey, on pages 149-150 of the authorities cited, explained that the British Parliament was limited by the instrument that created it and could not act beyond the area fixed for it. In the ninth edition of his Law of the Constitution, Dicey described a legislative assembly operating under a federal constitution as a subordinate law-making body whose statutes were comparable to by-laws, valid only while they remained within the authority granted by the Constitution and void if they exceeded that authority. He classified such an assembly as non-sovereign and likened its statutes to the by-laws of a railway company. The Court also referred to Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick [1892] A.C. 437, where Lord Watson plainly stated that a colonial legislature was “in no way analogous to that of a municipal institution.” Dicey, on page 112, further acknowledged that colonial legislatures were, within their own sphere, copies of the Imperial Parliament. Jennings and Young, in Constitutional Laws of the British Empire (1938 edition) at page 30, observed that the expression “colonial legislature is sovereign within its powers” was nonsense to a political scientist but served as a convenient way of expressing the legal rule that a power to legislate for the peace, order and good government of a colony allowed the enactment of any legislation, whether reasonable or unreasonable, desirable or undesirable.

The Court continued that, according to those authors, the most important application of this principle concerned the delegation of legislative powers. They asserted that a colonial legislature, while acting within its powers, could pass the same kind of legislation as the Imperial Parliament and could therefore empower subordinate authorities to legislate. English judges therefore treated a colonial legislature as a replica of the Imperial Parliament and ascribed to it, within its sphere, all the attributes of the supreme and sovereign British Parliament, including the power to delegate its law-making functions. In Hodge v. The Queen, Lord Fitz-Gerald regarded the power of delegation as ancillary to legislation and co-extensive with the law-making power itself. That power of delegation was also recognized in Powell v. Apollo Candle Company. In In re George Edwin Gray [57 S.C.R. 150], delegation that fell short of abdication was upheld, and Justice Evatt, in Victorian Stevedoring & General Contracting Company v. Dignan, acknowledged that legislative power necessarily included the power to delegate legislative authority. Lord Atkin, in Shannon’s case [1938] A.C. 708, described objections to delegation or sub-delegation as subversive of the rights of a provincial legislature. Finally, in the reference concerning the validity of regulations relating to chemicals [(1943) S.C.R. (Canada) 1], a sub-delegation of legislative power was also upheld.

In the decision reported as Chemicals etc. [(1943) S.C.R. (Canada) 1], the Court had affirmed that a sub-delegation of legislative authority was constitutionally valid. The Court observed that, if a legislature possessed no power to delegate, it could not lawfully empower a local authority, a corporation, or any other body to formulate rules, regulations or by-laws. It was thereby recognised that the substantive body of law was frequently created through subordinate agencies that regulated public conduct, imposed fiscal charges, defined offences and prescribed punishments. Sir Cecil Carr was cited for describing the rules and regulations issued by such subordinate authorities as “the bulkiest part” of English law. The Court further noted that even within jurisdictions that adhered to a strict doctrine of the separation of powers—such as the United States, where congressional authority was limited by the Constitution—judges and jurists had nonetheless identified narrow exceptions that permitted limited delegation of legislative functions. Turning to the Indian context, the Court stated that the Indian legislature, although heavily influenced by the executive and therefore comparable to a colonial legislature, nevertheless possessed an inherent power to delegate its own law-making capacity, despite not being a sovereign body like the British Parliament. The Court acknowledged that this acknowledgement of delegated authority was sometimes concealed by commentators who preferred to describe the delegated matters as merely minor or non-legislative functions. The Court refuted that view by asking where the power to delegate even trivial matters could originate if it were not part of the legislative power itself. It reiterated Lord Fitz-Gerald’s formulation that the power of delegation was “ancillary to legislation” and therefore formed an integral component of the law-making authority. Moreover, the Court pointed out that the legislature could itself perform the minor tasks of drafting rules, regulations and by-laws, and when it did so, it exercised its legislative power, for the legislature possessed only legislative competence and nothing beyond that. Consequently, when the legislature chose to vest such powers in a subordinate authority, the delegated power did not lose its essential character or cease to be part of the legislative power, even if the delegated matters were minor or constituted only a fractional portion of the whole legislative competence. Supporting this position, the Court cited Evatt, J., who in Dignan’s case [(1931) 46 C.L.R. 73] described every grant of authority to make rules as “itself a grant of legislative power.” Likewise, the Court observed that what had been labelled “conditional legislation” in Burah’s case [(1878) 5 I.A. 178] was, upon rigorous analysis, nothing more than a delegation of a limited segment of the legislature’s law-making power.

In this case, the Court noted that Professor Kennedy, in the second edition of his work on the Constitution of Canada, described conditional legislation on page 463 as “this form of delegation.” The Court then referred to several statutes that contained provisions analogous to those in Act XXII of 1869, which the Privy Council later identified as examples of conditional legislation. Citing the judgment of Garth C.J. in Burah’s case (I.L.R. 3 Cal. at p. 143), the Court observed that such statutes “in one sense amount 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 Court further cited Gray’s case (57 S.C.R. 150) where Anglin, J. described conditional legislation as “a very common instance” of limited delegation. In the decision of Choithram v. Commissioner of Income-tax, Bihar ([1947] F.C.R. 116), the Federal Court held that when the Governor issued a notification under section 92(1) of the Government of India Act, he was exercising a legislative power. From this, the Court concluded that every legislature inevitably possesses some power to delegate its law-making authority, and that such delegation, even when exercised by a Dominion legislature that is not sovereign, is implicit in or ancillary to the legislative power itself rather than being an attribute of the overall sovereignty held by the British Parliament and not by the Dominion legislature.

The Court went on to reject the argument that only minor portions of legislative power may be delegated while essential powers remain non-delegable, noting that this view mirrors a doctrine in American constitutional law that distinguishes “strictly and exclusively,” “purely” or “essential” legislative power from powers to fill in details, ascertain facts, or address minor matters. The Court found no logical basis for maintaining such a distinction once the principle of delegation was accepted. Referring again to Burah’s case (I.L.R. 3 Cal. at p. 143), the Court quoted Markby, J.’s remarks on Mr. Kennedy’s submissions, which asserted that the Indian Legislative Council of India claimed the authority to transfer its legislative functions to the Lieutenant-Governor of Bengal, with the only limitation being that the Council could not extinguish its own power to legislate. The Court noted that the Advocate General did not advance this claim as far, but emphasized that there is no narrower question that can replace the broad issue raised by counsel, and that no words in the Acts of Parliament permit legislative authority to be made transferable in some cases and not in others. The Court concluded by citing similar observations made by Anglin, J. in In re George Edwin Gray (57 S.C.R. 150) at page 176.

In the Court’s view, a limited delegation of legislative power remained permissible so long as the legislature did not completely relinquish its authority. The question then arose as to where the limit of such delegation should be drawn and which body possessed the competence to define that limit. Lord Fitz-Gerald, speaking in Hodge v. The Queen [9 App. Cas. 117], observed that the extent to which a legislature may rely on subordinate agencies and the duration of such reliance are issues that belong to the legislature itself and not to the courts. Likewise, in Baxter v. Ah Way [(1909) 9 C.L.R. 626], Higgins J. emphasized that the legislature enjoys full power, within its jurisdiction, to enact laws in any manner and to employ any agency or machinery it deems appropriate. By contrast, United States judges, acting under the due-process clause, have assumed the role of drawing the line, yet even there the precise boundary has proven elusive. In 1825 Chief Justice Marshall acknowledged that “the line has not been exactly drawn,” and in 1914 Justice Lamar admitted that “it is difficult to define the line.” Consequently, the Court questioned who, if anyone, could definitively determine where the line should be set. The Court found the principles articulated by the Privy Council to be clearer and more stable than the constantly shifting American doctrine, which it considered logically incapable of tightly restricting delegation as some interveners suggested. If “essential” legislative power is understood to mean the authority to set policy and that such essential power cannot be delegated, then many statutes and decisions cited earlier become difficult to reconcile. The Court refrained from analysing the English Emergency Powers (Defence Act) 3 & 4 Geo. VI, C. 20, or cases such as R. v. Halliday [1917] A.C. 260, where extensive powers were delegated to the executive and upheld on the basis that the sovereign Parliament could grant a “blank cheque” in emergencies. However, the Court noted the difficulty of reconciling decisions like In re George Edwin Gray [57 S.C.R. 150], Wishart v. Fraser, and the Canadian reference on the validity of regulations concerning chemicals, all of which involved Dominion statutes that conferred very broad delegation powers to the executive without any legislative policy guidance. In those Acts, the legislature merely listed specific matters over which the Governor-General was authorized to make regulations, without laying down an overarching policy framework.

In this case the Court recorded that the intervenors’ counsel had argued that the authorities cited dealt with wartime measures and therefore, in a national emergency, the legislature could delegate all of its powers to the executive for the defence of the country. The Court rejected that argument, stating that the proposition that an emergency could expand the competence of a legislature beyond what is fixed by the instrument that created it was wholly untenable and contrary to both principle and authority. The Court quoted the observations of Markby J. in Burah’s case, noting at page 101 that “In extreme cases the executive may suspend the operation of all laws. But I am not aware that such emergencies in any way affect the powers of the legislature; certainly not unless the legislature were actually overawed.” The Court further observed that even American jurisprudence did not support the intervenors’ position. Referring to Schechter v. United States, the Court cited Hughes C.J.’s remark at page 1579 that “Extraordinary conditions may call for extraordinary remedies. But 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.” Likewise, the Court cited Viscount Simon’s commentary in Attorney-General for Ontario v. Canada Temperance Federation, page 206, stating that “True it is that an emergency may be the occasion which calls for the legislation, but it is the nature of the legislation itself, and not the existence of emergency, that must determine whether it is valid or not.” The Court explained that although legislatures often use emergencies as a reason to delegate their law-making power extensively to the executive, such delegation is possible only because the legislature already possesses the power to delegate, regardless of any emergency. The Court emphasized that the existence of an emergency does not prevent the legislature from exercising its delegating authority as broadly in peacetime as it may wish, nor does it restrict the legislature to matters of public security or national defence. There was, the Court held, no logical basis for drawing a distinction between emergency and non-emergency circumstances in this respect.

The Court went on to observe that there was no justification for limiting the scope of legislative delegation on the ground of emergency. It pointed to the decision in Victorian Stevedoring and General Contracting Company v. Dignan, noting that section 3 of the Transport Workers Act, which was examined in that case, was a peace-time statute enacted in 1928-29 and merely listed the subjects on which the Governor-General could make regulations. The Court concluded that, in its judgment, there could be no logical limit to the power of delegation of the Indian Legislature when it acted within its constitutional sphere. The only reasonable restriction on the exercise of this apparently absolute delegating power, the Court said, was the limitation articulated in the various Privy Council and other decisions that had been cited earlier. Accordingly, the Court held that the Indian Legislature, like any Dominion legislature, could delegate its legislative authority as widely as it chose, subject only to the established principles drawn from the preceding authorities.

In this passage the Court explained that a legislature may not nullify its own authority or surrender all of its powers to a subordinate body that receives delegated law-making powers. The legislature must preserve its own capacity and may not create a new legislative power that is not authorized by the instrument that originally constituted the legislature. In other words, the legislature must not destroy its own legislative power. The Court noted that there is a direct opposition between the abdication of legislative power and the actual exercise of that power; the former eliminates the latter. By contrast, delegating legislative power does not create such an opposition. Even if the delegation is very wide, the legislature retains the ability, at any time, to reclaim the matter and to exercise the law-making function itself. The act of delegating legislative power is itself an exercise of that power and does not diminish or extinguish the legislature’s authority. Consequently, a power to make law on a subject necessarily includes the authority to make a law that delegates that power to another body.

The Court further observed that, considering entry No. 97 of the Union List and article 248 of the Constitution, the residuary power of Parliament is sufficiently broad to encompass the delegation of legislative authority over any subject matter within Parliament’s competence. Moreover, where a statute merely sets out a policy and delegates to a subordinate authority the task of framing rules and regulations to effect that policy, such delegation is permissible. Therefore, the Court saw no reason to deem an act that delegates legislative power to another person or body unconstitutional, provided the legislature does not efface itself or abandon its supervisory control over that subordinate authority. If the legislature can enact a law that states a broad principle or policy and obliges the public to obey rules made by a subordinate authority, it can likewise, while retaining its own capacity, leave the entire matter to that authority and command the public to obey the authority’s directives. The binding force of those rules derives solely from the legislature’s command. Hence, except for a complete self-effacement, legislative power may be delegated as freely and widely as the British Parliament or any Dominion legislature may deem appropriate. The Court acknowledged that American judges and jurists have faced difficulties because the majority of State Constitutions explicitly embraced a strict separation of powers, preventing such extensive delegation.

In this discussion, the Court noted that the Federal Constitution of the United States had implicitly accepted the doctrine of separation of powers. Because the American Constitutions had adopted the Locke-Montesquieu principle of separating governmental functions in its full strength, American judges and jurists could not openly discard that doctrine without violating their own constitutions. Consequently, they were compelled to strike a compromise between strict doctrinal adherence and practical necessity by limiting the doctrine of separation of powers to the determination of policy rather than allowing an unrestricted delegation of legislative authority. The Court further observed that, although the Australian Constitution employed language similar to that of the United States, Australian jurisprudence had allowed “legal symmetry to give way to common sense.” In contrast, the Canadian Supreme Court had encountered no difficulty in permitting even sub-delegation of legislative power.

Regarding conditional legislation, the Court explained that when the Privy Council in Burah’s case and in Russell’s case declared that there was no delegation, it was employing the term “delegation” to mean the legislature’s effacement or abdication of its own authority. This meaning had been clarified in Hodge’s case and subsequent authorities. The Court pointed out that, in Benoari Lal’s case, there was no question of any delegation of legislative power whatsoever. When the Court referred to section 4 of the Bombay City Civil Court Act, 1948, in the judgment of The State of Bombay v. Narottamdas [[1951] S.C.R. 51], it described the provision as an instance of conditional legislation and affirmed that there was no delegation of legislative power to the executive, merely echoing the language of the Privy Council in Burah’s case as previously explained. The Court noted that it was unnecessary in that case to examine or opine on the broader issue of the scope of the power of delegation or whether conditional legislation constituted a form of delegation.

The Court then turned to English law, observing that the power to delegate legislative authority had never been successfully challenged in the courts, and that no one had ever questioned the validity of the sweeping Emergency Powers (Defence) Act, 1939, often called the “Everything and Everybody Act.” Regarding India, the Court emphasized that the doctrine of separation of powers had never been accepted as a governing principle during the British Crown’s rule. Since the Indian Constitution had fused legislative and executive functions by explicitly adopting the principle of joint responsibility of the Council of Ministers to Parliament—mirroring the British Cabinet’s joint responsibility to Parliament—there was no compelling need to import the American doctrine of non-delegation, which had not yet defined its own limits. The Court concluded that there was no sound reason to adopt the “artificial and almost impracticable classification” of governmental powers devised by American decisions, which it regarded as haphazard and illogical, as a guiding principle of legislation.

In the discussion, the Court identified two principal tests for judging the validity of a statute passed by the Indian Legislature that confers legislative authority on a subordinate body. The first test required that the statute fall within the legislative competence fixed by the constitutional instrument that created the Legislature. The second test asked whether the Legislature had, by the statute, erased, abdicated or destroyed its own legislative power. The Court explained that if the answer to the first question was affirmative and the answer to the second was negative, then no court of justice was entitled to examine the statute further or to question the wisdom or policy underlying it.

The Court acknowledged the argument that it could be dangerous if a Legislature delegated all of its legislative functions without formally relinquishing its control, because such delegation might allow the Legislature to shirk its responsibility and permit the life, liberty or property of individuals to depend on the whims of the lowest police officer to whom the power might be successively delegated. The Court, however, expressed that it was not troubled by this fear. It stated that it did not share a feeling of oppression regarding the danger that might arise if the Legislature “went to sleep” after delegating its functions. The Court reasoned that legislators who fell into such a slumber would receive a rude awakening when they were removed from the legislative chamber at the next general election. The Court further asserted its confidence that, after delegating powers, the Legislature would continue to watch attentively the actions of those to whom it had delegated authority, and that it would, at the first sign of misuse harmful to the public, either nullify the acts performed under the delegation, appoint a more competent authority, or withdraw the matter back into its own hands.

The Court recognized that any broad delegation of legislative power to a subordinate body carried an inherent risk of abuse, but it held that the remedy lay in the corrective power of the Legislature itself, ultimately supported by the vigilance of public opinion, rather than in arbitrary judicial intervention against the Legislature’s free exercise of law-making within the limits set by its constitutional instrument. The Court emphasized that it was not the role of the courts to replace their own ideas of expediency with the will of the Legislature. In its judgment, the Court maintained that a law must not be wholly divorced from logic nor surrender to sterile dogma; consequently, the widest possible power of delegation of legislative authority must, of necessity, be concerned with Parliament. A denial of this essential power, the Court warned, would “stop the wheel of government” and cause the system to act “as a clog upon the legislative and executive and departments.” The Court then referred to the observations of Varadachariar C.J. in Emperor v. Benoari Lall [[1943] F.C.R. 96; A.I.R. 1943 F.C. 36], which had been strongly relied upon by counsel for the interveners.

In this matter, the interveners’ counsel relied heavily on the decision reported in 1943 F.C. 36. The opinion of the distinguished Chief Justice that authored that decision was afforded the highest respect, and the Court therefore examined it with great care. The record showed that the Advocate-General of India, who appeared on behalf of the Governor-General in Council, expressly adopted the observations of Judge Ranney, which had already been quoted, as the basis of his argument, without expressing any concern that American case law might provide reliable guidance on the issue. This concession, together with the reference in Burah’s case to “the nature and principles of legislation,” appeared to have persuaded the learned Chief Justice to embrace the American decisions concerning the non-delegation of legislative power. After citing several Privy Council judgments, the Chief Justice held that none of those cases could be said to conflict with the principles laid down by Judge Ranney. He then turned to a number of American decisions and to the safeguards against delegated legislation suggested by Sir Cecil Carr, and concluded with the following observation: “As we have already observed, the considerations and safeguards suggested in the foregoing passages may be no more than considerations of policy or expediency under the English Constitution. But under a Constitution like the Indian and the American, where the constitutionality of legislation is examinable in a court of law, these considerations are, in our opinion, an integral and essential part of the limitation on the extent of delegation of responsibility by the legislature to the executive. In the present case, it is impossible to deny that the ordinance-making 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 to the ordinary criminal Courts and to the Special Courts respectively and left the whole matter to the 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 the undefined powers entrusted to the executive authorities by sections 5, 10 and 16 of the Ordinance.”

The learned Chief Justice, however, overlooked the fact that the foundation of Indian legislation had always been the firmly established notion, articulated by the Privy Council, that within the limits fixed by an Act of Parliament the Indian Legislature possessed supremacy and plenary legislative powers comparable to those of the British Parliament itself. Moreover, the phrase “the nature and principles of legislation” mentioned in Burah’s case was intended to refer to the English concept of legislation rather than to the American variety. With the utmost respect for the Chief Justice, the Court found it unable to accept his view that the pronouncements of the Privy Council Lords in the several cases he cited did not authorize “every kind of delegation by the legislature.” The Court therefore concluded that the Chief Justice’s interpretation was inconsistent with the prevailing understanding of the scope of legislative delegation as affirmed by the Privy Council.

The Court observed that the statement “of delegation by the legislature” was not the final word on the issue. It held that, contrary to the learned Chief Justice’s view, the passages quoted from various Privy Council decisions clearly expressed, in unmistakable terms, that the Privy Council approved the broadest possible delegation of legislative power so long as such delegation did not amount to the abdication or elimination of the legislature itself. The Court added that the learned Chief Justice’s opinion on this matter had been expressly overruled by Viscount Simon, who delivered the Privy Council judgment on appeal. In that judgment Viscount Simon stated: “With the greatest respect to these eminent judges, their Lordships feel bound to point out that the question whether the ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well-framed legislation it is better, if circumstances permit, to 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 is a question 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 Legislature or under the Governor-General’s emergency powers, which does not accord with this principle.” The Court then noted that, regardless of any earlier view that the Government of India Act made the Indian Constitution more similar to the American Constitution than to the British Constitution, such a view could no longer be sustained after the adoption of the new Constitution. Under the new constitutional scheme the Executive is answerable to the Legislature and Parliament has been granted the residuary power of legislation in the widest possible terms. Consequently, the Court could not accept the correctness of the learned Chief Justice of the Federal Court’s observations.

The Court further explained that counsel for the interveners had relied upon the Federal Court decision in Jatindra Nath Gupta v. Province of Bihar. The Attorney-General, representing the President, had vigorously contested the correctness of the Federal Court’s majority judgment in that case, and the present reference had arisen, in part, because of that decision. The case dealt with the validity of the proviso to section 1(3) of the Bihar Maintenance of Public Order Act, 1947. Section 1(3) stipulated that the Act would remain in force for one year from the date of its commencement. The proviso, as quoted by the Court, provided: “Provided that the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by 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 notification.” The Court observed that three of the Federal Court judges had held that the proviso and the accompanying notification were ultra vires and void, emphasizing that the power given to the Provincial Government to make any modification when extending the Act’s duration amounted to a delegation of legislative power. A fourth judge had not decided that particular point but had set aside a detention order on a separate ground, while the remaining judge viewed the proviso as conditional legislation in accordance with the decision in The Queen v. Burah. The Court concluded that the majority judgment of the Federal Court had not fully examined the essential questions raised by the proviso.

The Court examined the proviso that required the Bihar Legislative Assembly and the Bihar Legislative Council to agree that the Act should remain in force for an additional year, allowing any modifications to be specified in a notification. Three of the judges concluded that both the proviso and the subsequent notification exceeded the lawful authority and were therefore void. These judges emphasized that granting the Provincial Government the power to alter the Act while extending its duration amounted to an impermissible delegation of legislative authority. A further judge declined to address this specific issue, choosing instead to set aside an order of detention on a different basis that was not relevant to the matter under consideration. The remaining judge adopted a contrasting approach, holding that the effect of the proviso constituted conditional legislation consistent with the principle articulated in The Queen v. Burah. Upon reviewing the majority judgment of the Federal Court in the earlier case, the Court observed that the critical questions had not been examined as fully or vigorously as they were in the present reference. It appeared that counsel for the Province of Bihar essentially conceded that delegating the power to modify the Act was impermissible and argued that the provision could be severed, leaving the rest as conditional legislation under the Burah principle. The Federal Court’s majority, however, rejected this view, declaring the power of modification inseparable and consequently invalidating the entire proviso and the notification issued under it.

Expressing humility but disagreeing with the Federal Court’s conclusion, the Court aligned with the Attorney-General’s position that the majority’s interpretation went beyond acceptable limits concerning the delegation of legislative power. The Court held that delegation is an inherent aspect of legislative authority and, absent a complete relinquishment of power, the legislature may delegate to the fullest extent permissible. After outlining these principles, the Court turned to the first question presented for determination. It noted that the Delhi Laws Act of 1912 was enacted in the circumstances described in the Act’s preamble. By Notification No. 911, dated 17 September 1912, and with the approval of the Secretary of State for India, the Central Government assumed immediate authority over the territory listed in Schedule A, which had previously been part of the Punjab Province. The notification provided for the administration of this territory by a Chief Commissioner, establishing it as a separate entity known as the Province of Delhi. The separation of Delhi from Punjab and its establishment as an independent province created an immediate necessity for a legal framework, leading to the enactment of the Delhi Laws Act on 18 September 1912.

When the Territory was separated from the Province of Punjab and constituted as its own Province, an immediate legislative framework was required for the newly created Province. Consequently, the Governor-General in Council enacted the Delhi Laws Act, 1912 on 18 September 1912. The Act contained a provision, identified as Section 2, which preserved the territorial application of every law that had been in force in the area before the separation occurred. In addition, Section 7 of the same Act authorized the Provincial Government, by means of a notification published in the official gazette, to extend any enactment that was in force anywhere in British India on the date of such notification to the Province of Delhi or to any part of it, provided that the Government imposed any restrictions or modifications it deemed appropriate.

To decide whether the Delhi Laws Act, 1912 was valid, it was necessary to determine the breadth and limits of the legislative authority held by the Governor-General in Council in the year 1912. As Lord Selborne explained in the Burah case, this determination required an examination of the instrument that created the legislative powers positively and the instrument that limited them negatively. The earliest parliamentary instrument relevant to this inquiry was the Charter Act of 1833 (3 & 4 Will. IV C. 85). Under Section 39 of that Act, the overall supervision, direction and control of both civil and military government were placed in a Governor-General and his Council, styled “The Governor-General of India in Council.” Section 40 prescribed that the Council consist of three members who were, or had been, servants of the East India Company and a fourth member who was not a Company servant; this fourth member could sit and vote only at meetings dealing with the making of laws and regulations. Section 43 granted the Governor-General in Council the power “to make laws and regulations for all persons, whether British or native, foreigners or others, and for all Courts of Justice, whether established by His Majesty’s Charters or otherwise, and the jurisdiction thereof, and for all places and things whatsoever …” except as specifically excluded. Section 44 reserved to the Court of Directors the authority to disallow any law made by the Governor-General in Council. Section 45 declared that every law and regulation made under the Act would have the same force and effect throughout the territories as an Act of Parliament would, and that all courts should treat those laws in the same manner as they would treat a parliamentary act. Section 66 enabled the Governors or Governors-in-Council of Bengal, Madras, Bombay and Agra to submit drafts or projects of any law to the Governor-General in Council, which was then required to consider them. The effect of these provisions was that the earlier legislative powers previously held by the individual Governors-in-Council were effectively withdrawn.

In this passage the Court explained that the legislative framework created by the Act of 1833 remained largely unchanged after later statutes. By the Government of India Act, 1858 (21 and 22 Vic. C. 106), the British Crown assumed control of the territories that had previously been administered by the East India Company. The next major statute was the Indian Councils Act, 1861 (24 and 25 Vic. C. 67). Section 2 of that Act expressly repealed sections 40, 43, 44, 50, 66 and 70 of the 1833 Act, but it saved all other enactments then in force that related to the Council of the Governor-General or to the Councils of the Governors. Consequently, section 45 of the 1833 Act, which gave laws made by the Governor-General in Council the same force as an Act of Parliament, continued to operate, and therefore any law made under the 1861 Act by the Governor-General in Council also possessed the force of an Act of Parliament throughout British India. Section 3 of the 1861 Act dealt with the composition of the Governor-General in Council. Section 22 substantially re-enacted the provisions of section 43 of the 1833 Act, subject to a proviso that the Governor-General in Council could not repeal or affect the provisions of the 1861 Act or any other statutes that were specifically preserved. The 1861 Act also restored to the Governors-in-Council of the Presidencies the authority to make laws. Although the Act was amended from time to time, those amendments primarily concerned the composition of the Governor-General in Council. Over time the Council was enlarged, yet it remained dominated by the executive and the official members, so that the statutes issued by the Governor-General in Council were effectively executive orders. This created a fusion of powers in which the executive dominated the legislative function, rendering the delegation of legislative power to the executive largely nominal. The scope of the legislative power therefore stayed as broad and indeterminate as it had been in 1833. As a result, the legislative authority of the Governor-General in Council in 1912, when the Delhi Laws Act was passed, was essentially the same as the authority it possessed in 1869, when Act XXII of 1889 – considered in Burah’s case – was enacted. The Court noted that it would be useful to compare the wording of section 7 of the Delhi Laws Act with section 8 of Act XXII of 1869, which the Privy Council examined in Burah’s case. Section 9 of that 1869 Act authorized the Lieutenant-Governor, by means of a notification in the Calcutta Gazette, to extend mutatis mutandis any or all of the provisions of the other sections of the Act to particular places specified in the notification. The Lieutenant-Governor exercised this power by issuing a notification that extended every provision of the Act to the district of Khasi and Jaintia Hills, thereby also extending section 8 to that district. A close reading shows that section 8 empowered the Lieutenant-Governor to extend to that district any law or any part of any law (i) now in force in the other territories subject to

The provision allowed the executive to extend laws that were either already in force in the government’s own jurisdiction or that might later be enacted by the council of the Governor-General or by the Lieutenant-Governor. The Court observed that this wording was substantially similar to the language of section 8 of Act XXII of 1869. Both section 7 of the Delhi Laws Act and section 8 of the 1869 Act permitted the extension of all existing statutes to the designated territories. No serious objection had been raised against the propriety of empowering the executive to apply existing statutes, because those statutes were already known to the Governor-General in Council, which could be presumed to have considered the desirability of extending them to the territories in question. The principal objection to section 7 of the Delhi Laws Act, however, was that it authorised the executive to extend future statutes. Critics argued that the Governor-General in Council could not possibly anticipate the substance of laws that it or any provincial legislature might enact in the future. While the Court found this objection to be of little weight with respect to statutes that the Governor-General in Council might later pass, it recognised that the objection carried considerable force when the future statutes were to be made by a provincial authority. Nevertheless, section 8 of Act XXII of 1869 likewise empowered the Lieutenant-Governor to extend to the concerned districts any future law, whether that law was to be made by the Governor-General in Council or by the Lieutenant-Governor in Council. After the districts were separated by notification from the other territories under the Lieutenant-Governor, statutes enacted by the Lieutenant-Governor in Council after that separation did not automatically apply to those districts. If they had, there would be no need to authorise the Lieutenant-Governor, acting in an executive capacity, to extend such future statutes to the districts. Consequently, when the Lieutenant-Governor in Council later legislated for the remaining parts of the territories under the Lieutenant-Governor’s charge, it could not be assumed that the legislative body had considered the appropriateness or necessity of those statutes for the separate districts, because there was no knowledge at that time that the executive might later extend them. Moreover, the Governor-General in Council, while passing sections 8 and 9 of Act XXII of 1869, could not have contemplated the suitability of future statutes that the Lieutenant-Governor in Council might enact for the newly separated districts. In this respect, the Court held that section 7 of the Delhi Laws Act was on exactly the same footing as section 8 of Act XXII of 1869.

The argument was raised that, under section 8 of the 1869 Act, the Lieutenant-Governor possessed no authority to modify a law before extending it, whereas section 7 of the Delhi Laws Act gave the Provincial Government the power to make such modifications, an authority that could be characterised as law-making. Section 9 of Act XXII of 1869, however, authorised the Lieutenant-Governor to extend mutatis mutandis all or any of the provisions of the Act to the specified territories, thereby encompassing the power to adapt the law as part of the extension process.

The Court observed that section 9 permitted the Lieutenant-Governor to extend the provisions of the Act to certain territories, and that section 8 additionally authorised the Lieutenant-Governor to extend any law or any portion of any law. It held that the power to extend an Act mutatis mutandis inevitably involved some modification, however slight such alteration might be. Moreover, the power to extend only part of an Act necessarily included the authority to omit certain sections, to leave out portions of sections, or to exclude important qualifications and provisos attached to any section. In this way, a power of modification was undeniably present in the process of extension. The Court referred to the illustrations given by the Privy Council at the conclusion of its judgment in Burah’s case, which clearly indicated that extending a law “subject to any restrictions, limitation, or proviso which the Local Government may think proper” was considered perfectly permissible by the Lords. It was therefore reasonably argued that the intention of section 7 of the Delhi Laws Act was that any permissible modifications should be of a nature that, after alteration, the general character of the enactment would remain intact. The Court cited the Oxford Dictionary, Volume I, page 1269, which defines “modify” as “to alter without radical transformation.” If this definition is applied to the word “modification” in section 7 of the Delhi Laws Act, the contemplated changes amount merely to adaptations described by the terms mutatis mutandis and the “restrictions, limitations or proviso” referred to in the various instances of conditional legislation mentioned by the Privy Council. On this construction, the Court concluded that section 7 of the Delhi Laws Act stood on the same footing as section 8 of Act XXII of 1869 and produced the same effect as that latter provision. The effect of sections 8 and 9 of Act XXII of 1869 was then explained in the language of Lord Selborne in Burah’s case, pages 194-195: “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 place it under new Courts and offices, to be appointed by and responsible to the Lieutenant-Governor of Bengal; leaving it to the 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 to time might be in force by proper legislative authority, ‘in the other territories subject to his government.’” The legislature, the Court noted, had determined that a certain change should occur, but it was deemed expedient to leave both the timing and the manner of effecting that change to the discretion of the Lieutenant-Governor, and also to allow that the laws existing or potentially existing in other territories governed by the same Government might be suitable and proper to apply to the district in question.

The legislature had held that it was appropriate to extend to the district any law that was already in force elsewhere, but it also recognized that it could not be certain that every law, or every part of each law, could be applied with equal ease. For that reason, the legislature found it expedient to give the Lieutenant-Governor a discretion to decide which laws could be applied. This approach had already been adopted for the Garo Hills. The question then arose as to what should be done for the neighbouring Khasi and Jaintia Hills. The legislature decided that it was fit and proper to remove the Khasi and Jaintia Hills from the jurisdiction of the existing courts and to place them under the same scheme that applied to the Garo Hills. However, this removal was to occur only if and when the Governor-General thought it desirable. Moreover, the legislature recognised that it might be suitable to apply only some, and not all, of the provisions to the Khasi and Jaintia Hills. Consequently, the legislature entrusted to the Lieutenant-Governor a discretionary power to determine, for these purposes, which provisions should be brought into force in that adjoining district.

The Court then considered whether the reasoning that upheld section 8 of Act XXII of 1869 as a valid example of conditional legislation could be applied to section 7 of the Delhi Laws Act. Adopting Lord Selborne’s language, the Court observed that when the new Province of Delhi was created, the Governor-General in Council, which enacted the Delhi Laws Act, decided that it was expedient to enable the Provincial Government not to make any law it wished for the new Province, but to apply, by public notification, any enactment that either already existed or might later be validly made in other provinces. The legislature also held that the laws of other provinces were, in principle, fit and proper to be applied to Delhi, but because it could not be certain that all such laws, or every part of them, could be applied with equal convenience, it was expedient to give the Provincial Government a discretion to select the laws or parts of laws it deemed appropriate. Even if the word “modification’’ in the Delhi Laws Act appeared to grant the Provincial Government a broader power than that given to the Lieutenant-Governor by section 89 of Act XXII of 1869, the Court ruled that such a power of modification could also be accommodated within the principle of conditional legislation. Thus, the Court concluded that the Governor-General in Council, in enacting the Delhi Laws Act, had exercised its legislative judgment in the same manner as it had for the earlier legislation.

Because it was not certain that every law existing in other parts of British India could be applied to the new Province of Delhi with equal convenience and in its entirety, the legislature found it expedient to give the Provincial Government a discretionary power to adopt such laws only after imposing any restrictions or modifications that would render them more suitable for Delhi before they were actually extended. This reasoning places the Delhi Laws Act, notwithstanding the provision for modification, squarely within the principles laid down in the Privy Council decision in Burah’s case. Consequently, the Court was prepared to hold that the first question presented was conclusively resolved by the precedent established in that case.

The Court noted that the conclusion did not rely solely on the foregoing reasoning. Even if one were to assume that the power of modification granted to the Provincial Government removed section 7 of the Delhi Laws Act from the sphere of conditional legislation, the same result would be reached on an alternative basis: namely, the lawful exercise of the inherent power of legislative delegation vested in the Governor-General in Council when it delegated authority to the Provincial Government. Judicial authorities make clear that, by enacting the Delhi Laws Act, the legislature neither relinquished all its legislative authority nor created an entirely new legislative power. No such intention is discernible in the Act. While it was suggested that the Provincial Government might have taken upon itself questions of principle or policy—such as imposing prohibitions and extending the prohibition statutes of another Province to Delhi, which might have been unsuitable—the Court did not find any evidence that the Provincial Government actually engaged in such drastic measures. Moreover, even if the executive were to act mistakenly or intentionally in an inappropriate manner, the legislature retained the ability to intervene, correct the error, nullify the improper action, or, if necessary, withdraw the matter back into its own competence. The remaining issue, therefore, was whether the Governor-General in Council possessed the legislative capacity in 1912 to enact the Delhi Laws Act. The Court observed that section 22 of the Act of 1861 essentially restated section 43 of the Charter Act of 1833, thereby empowering the Governor-General in Council to make laws concerning all persons, courts, places, and matters whatsoever. It is difficult to envision any broader law-making authority vested in a subordinate legislature. The laws made under this authority were given the same force and effect throughout British India as statutes passed by Parliament, the sole limitation being that the Governor-General could not legislate on matters affecting the Act of 1861 itself and certain other specified statutes. The Delhi

The Court observed that the Delhi Laws Act was unquestionably a statute that applied to the “persons” residing within the geographical area identified as the Province of Delhi. It further noted that judicial decisions, as the Court understood them, clearly demonstrated that the power to delegate authority forms an integral component of legislative power. Once a legislature concedes a power of delegation, the only limitations on that delegated power are the ones expressly mentioned by the legislature. Accordingly, the Court found no doubt that the Governor-General in Council acted within its lawful authority when it delegated to the Provincial Government the responsibility to select laws appropriate for the newly created Province of Delhi. The Court also held that the Governor-General in Council may lawfully extend that delegated authority to the Province, subject to any restrictions and modifications that the Provincial Government deemed appropriate. Consequently, the Court was satisfied that the enactment of section 7 of the Delhi Laws Act in 1912 was within the scope of the legislative power then possessed by the Governor-General in Council, and that no portion of that section exceeded the Governor-General’s constitutional authority.

Turning to the second issue, the Court examined the Ajmer-Merwara (Extension of Laws) Act, which had been passed on 31 December 1947. At that time the Constitution of India was governed by the Government of India Act 1935, as it had been adapted under the Indian Independence Act 1947. Under section 7 of the 1935 Act, the executive authority of the Dominion was to be exercised on behalf of His Majesty by the Governor-General. Section 46 defined “province” as a Governor’s Province, while section 49 provided that the executive authority of a Province was to be exercised on behalf of His Majesty by the Governor. The adapted version of section 18 stipulated that the powers of the Dominion Legislature would be exercised by the Constituent Assembly. Section 42, contained in Chapter IV of Part II, assigned certain legislative powers to the Governor-General in specific circumstances. Section 60 required that each Province have a Provincial Legislature consisting of His Majesty represented by the Governor and, depending on the Province, either two chambers or a single chamber. Section 94 listed the Chief Commissioners’ Provinces, expressly including Delhi and Ajmer-Merwara. Sections 99 and 100 allocated legislative competencies between the Dominion Legislature and the Provincial Legislatures, confining each body’s law-making authority to the categories set out in the Seventh Schedule. Sub-section (4) of section 100 provided that the Dominion Legislature possessed the power to legislate on matters enumerated in the Provincial Legislative List, except for a Province or any part thereof. By applying the definition of “province” to this sub-section, the Court concluded that the Dominion Legislature was empowered to enact laws for the Chief Commissioners’ Provinces on all subjects contained in all three Legislative Lists. Part IX of the Act dealt with the judiciary, including section 200, which required the establishment of a Federal Court, and section 219, which enumerated the various High Courts. From these provisions, the Court inferred that the Government of India Act 1935 did not vest legislative or executive powers in the judiciary in the manner found in the American Constitution.

In this case the Court examined Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, which provides that the Central Government may, by notification in the official Gazette, extend to the Province of Ajmer-Merwara, with any restrictions or modifications it deems appropriate, any enactment that is in force in any other Province on the date of such notification. The Court saw no difficulty in classifying this provision as conditional legislation, relying on the doctrinal analysis set out in Burah’s case and applying the same reasoning that had been used for section 7 of the Delhi Laws Act. The Court also observed that the language of Lord Selborne could be applied to the Ajmer-Merwara Act mutatis mutandis. Alternatively, the Court noted that the Act could be upheld as a valid delegation of legislative authority by the legislature, provided that the delegation did not erase the legislature’s own role as explained earlier. It was acknowledged that the Dominion Legislature’s power to legislate for the Chief Commissioners’ Provinces was limited by the entries in the three Lists and did not include the residuary legislative power now possessed by Parliament under entry 97 of the Union List and article 248 of the present Constitution. Nevertheless, the Dominion Legislature possessed authority to make laws that covered all three Lists, and this authority included the power to delegate legislative functions with respect to each subject in each List. By virtue of section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, the Dominion Legislature delegated to the Central Government the power to extend, by notification, only those laws that were already in force in another Province at the date of the notification. The Court emphasized that the law enacted by the Dominion Legislature applied uniformly throughout the Dominion, and there was no separate question of the Central Government extending the law to Ajmer-Merwara. Moreover, the Dominion Legislature, when it passed the law, exercised its own legislative judgment. Consequently, by section 2 the Dominion Legislature effectively transferred to the Central Government legislative power concerning matters listed in the Provincial and Concurrent Lists. The Court concluded that this delegation fell squarely within the legislative competence of the Dominion Legislature and that no portion of the Act was ultra vires.

Regarding the third question, the Court turned to the Part C States (Laws) Act, 1950, which was enacted on 16 April 1950, after the Constitution had come into force. To answer the question, the Court first needed to determine the scope of Parliament’s legislative authority under the Constitution. Article 53 vests the executive power of the Union in the President. Article 74 requires the existence of a Council of Ministers, headed by the Prime Minister, to aid and advise the President. Article 75(3) makes the Council of Ministers collectively responsible to the House of the People. Article 79 establishes that the Parliament of the Union shall consist of the President and two Houses. These provisions together define the constitutional framework within which Parliament may exercise its legislative competence.

In this case the Court explained that the Constitution allocated legislative authority between the Parliament and the State Legislatures pursuant to articles 245 and 246, and that the two Houses of Parliament exercised the powers described in those provisions. Under article 245 the Parliament was empowered to enact laws that applied to the whole of India or to any part thereof. The matters on which Parliament could legislate were listed in the Union List contained in the Seventh Schedule of the Constitution.

The Court further noted that the State Legislatures were authorised to legislate on subjects enumerated in the State List, while both the Parliament and the State Legislatures shared the power to legislate on matters contained in the Concurrent List. In addition, entry 97 of the Union List together with article 248 conferred upon Parliament the residuary power to make laws on any subject that was not specifically placed in either the Concurrent List or the State List.

The judgment then turned to the structure of the Union judiciary, observing that Chapter IV of Part V dealt with that topic and that article 124 expressly provided for the establishment of a Supreme Court of India. Parallel provisions, the Court said, existed for the executive, legislative and judicial branches of the State governments.

It was pointed out that only the executive authority was “vested” in the President of India or, as the case might require, in the Governor of a State, and that unlike the American Constitution there was no similar vesting of legislative or judicial power in those offices. The Court observed that in this respect the Indian Constitution followed the pattern of the Canadian Constitution. Moreover, the Constitution adopted the British cabinet system and required the Council of Ministers to be collectively responsible to the House of the People, thereby creating a fusion of executive and legislative functions similar to that which exists in England. Although India was a federal union, the Court emphasized that the principal features of the British constitutional system had been incorporated.

The Court then reminded that the power of both Parliament and the State Legislatures to make laws was “subject to the provisions of this Constitution.” Article 13 (2) prohibited either the Union or a State from enacting any law that would take away or abridge any of the fundamental rights guaranteed in Part III of the Constitution. The Court further observed that the clear demarcation of legislative competence suggested a limitation whereby Parliament could not lawfully delegate its legislative powers to a State Legislature, nor could a State Legislature delegate its powers to Parliament, because such delegation would be contrary to the Constitution. The Court cited the decision of the Attorney-General of Nova Scotia v. Attorney-General of Canada [(1950) 4 D.L.R. 369] in support of this principle.

Turning to the question of whether either Parliament or a State Legislature had exceeded the constitutional limits, the Court held that such a dispute was justiciable and that the judiciary possessed supremacy over the legislature in determining the matter. However, the Court clarified that within the respective spheres of competence each Parliament and each State Legislature were supreme, and that the Court could not question the wisdom or propriety of a law that was validly enacted within those spheres. On this point the Court reiterated the position previously expressed in Gopalan’s case [[1950] S.C.R. 88].

Finally, the Court mentioned that Part C of the First Schedule listed ten States, each of which, under article 239, was administered by the President through a Chief Commissioner, a Lieutenant-Governor, or through the government of a neighbouring State.

In this matter the Court observed that Article 240 of the Constitution authorises Parliament to establish or maintain a local legislature or a Council of Advisers for any of the Part C States, and that Article 241 authorises Parliament to constitute a High Court for any of those States. The Court further noted that Article 246(4) confers on Parliament the authority to legislate on any subject included in the State List with respect to any Part C State, while Article 245 permits Parliament to make laws for the whole of India or for any portion of the Indian territory. Consequently, the Court held that Parliament possesses the power to enact legislation for the Part C States on any matter falling within any of the three constitutional Lists, as well as on any other matter falling within its residuary legislative competence. The Court explained that, in this respect, the legislative authority of Parliament with respect to the Part C States is substantially broader than the authority that the former Dominion Legislature enjoyed under the Government of India Act. Acting upon this extensive power, Parliament enacted the Part C States (Laws) Act, 1950. Section 2 of that Act, the Court recited, provides as follows: “The central Government may, by notification in the official gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act), which is for the time being applicable to that Part C State.” The Court observed that the sole distinction between this provision and the analogous provisions found in Section 7 of the Delhi Laws Act, 1912, or Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, is that Section 2 vests the power in the Central Government to, while extending a Part A law to a Part C State, also provide for the repeal or amendment of any corresponding law currently operating in that Part C State. The Court expressed the view that this difference does not preclude treating Section 2 as conditional legislation within the meaning articulated in Burah’s case. It further remarked that the language employed by Lord Selborne in the cited case is applicable to the first part of Section 2 of the Part C States (Laws) Act in the same manner as it applied to Section 8 of Act XXII of 1896, to Section 7 of the Delhi Laws Act, 1912, and to Section 2 of the Ajmer-Merwara (Extension of Laws) Acts, 1947. Moreover, the Court held that the same reasoning can be extended to the latter portion of Section 2, because it is equally plausible to conclude that Parliament, as the appropriate legislature, exercised its discretion in deciding that it was advisable to empower the Central Government not to devise any law it wished, but rather to, by notification, apply to a Part C State the laws that were, or might be, in force in a Part A State.

In this case, the Court observed that a law enacted by a competent legislature in a Part A State may be extended to a Part C State by means of a central government notification, provided that the law is suitable and appropriate for the Part C State. The Court noted that if the newly extended law conflicts with an existing law in the Part C State, it becomes necessary to repeal or amend the latter law so that the more suitable law can be applied. Accordingly, the Court held that it is expedient to give the Central Government a discretionary power to repeal or amend the law that is already in force. The Court therefore concluded that this scheme falls directly within the principle of conditional legislation as established in Burah’s case. The Court further added that even if section 2 of the Part C States (Laws) Acts were, for any reason, considered to lie outside the scope of conditional legislation, it could nevertheless be upheld as a valid example of permissible delegation of legislative power. This is because, first, the power to delegate is inherent in the law-making authority itself, and second, such delegation is expressly authorized by Entry 97 of the Union List and by Article 248 of the Constitution. The Court affirmed that making a law concerning the delegation of legislative power is not a matter enumerated in either the Concurrent List or the State List, and therefore Parliament has not exceeded its competence. Consequently, the legislation in question was held to be within Parliament’s legislative competence and therefore valid.

The learned Attorney-General supported the validity of the three enactments by referring to historical legislative practice in India. He cited several instances where, during the period of British territorial expansion, small enclaves were annexed but could not be immediately merged with existing provinces because of their size or the impracticality of establishing separate legislative councils. The Governor-General in Council was then unable to enact detailed laws for the day-to-day administration of these territories. To address this, a practice developed whereby the Governor-General in Council, through simple legislation, conferred authority on the Lieutenant-Governor to extend to these enclaves those laws that were already in force in other parts of the Lieutenant-Governor’s jurisdiction and that were deemed suitable. This practice was considered convenient and, since the decision in Burah’s case, has not been seriously challenged. While the Court acknowledged that the argument based on this historical practice possesses some merit, it stated that, on the present occasion, it was not necessary to base its opinion on that argument. Before concluding, the Court noted the need to consider an argument grounded in Article 353 and Article 357 of the Constitution.

In the discussion of article 357, the Court noted that the provisions cited belong to Part XVIII of the Constitution and constitute emergency provisions. Article 362, according to the Court, empowers the President, if satisfied that a grave emergency of the specified kind exists, to issue a proclamation declaring such an emergency. While such a proclamation remains in effect, the executive power of the Union may extend to giving directions to any State concerning the manner in which the State’s executive power is to be exercised. Furthermore, the power of Parliament to make laws with respect to any matter includes the authority to enact statutes that confer powers, impose duties, or authorize the conferring of powers and the imposition of duties upon the Union or upon officers and authorities of the Union as relevant to that matter. Article 356, the Court explained, provides for the breakdown of the constitutional machinery in the States and authorises the President, by proclamation, to assume the powers of the State government and to declare that the powers of the State Legislature shall be exercisable by, or under the authority of, Parliament. Article 357, as clarified, declares that in the event of such a proclamation it shall be competent for Parliament to confer on the President the power of the State Legislature to make laws and to authorise the President to delegate the power so conferred to any other authority.

The Court then addressed an argument that if legislative power inherently contains a power of delegation, it would be unnecessary for articles 353 and 357 to provide an express power of delegation. The argument sought to conclude that a grant of legislative power, standing alone, does not automatically include a power of delegation, and therefore the Constitution expressly provides such a delegation power in those two articles. The Court found this argument to be unsound. Firstly, the Court observed that the two articles were intended to enable the Union government or Parliament to exercise the powers of the State government or the State Legislature; consequently, it was considered necessary to expressly incorporate the power of delegation. Secondly, the Court noted that, given the emergency or other stressful circumstances, it may have been prudent to expressly provide for this power of delegation ex abundanti cautela. The Court stated that it was not prepared to say that the provisions of these two articles could possibly negate the power cauteld, nor was it prepared to say that the provisions of delegation of legislative power, which are incidental and ancillary to the power of legislation and which, up to a point, are conceded even in the realm of the separation of powers, are invalid.

Accordingly, the Court answered the questions presented as follows: Question 1—Section 7 of the Delhi Laws Act, 1912, was held to be valid and no part thereof was ultra vires the legislature that enacted it; Question 2—The Ajmer-Merwara (Extension of Laws) Act, 1947, was held to be valid and no part thereof was ultra vires the legislature that enacted it; Question 3—Section 2 of the Part C States (Laws) Acts, 1950, was held to be valid and no part thereof was ultra vires Parliament.

In this portion of the judgment, the Court turned its attention first to the Delhi Laws Act of 1912, seeking to determine whether section 7 of that Act, or any provision contained therein, exceeded the power of the Parliament. To answer that question, the Court stated that it was necessary to set aside the present Constitution of India and to imagine the legal situation as it existed in the year 1912, when India was still under British rule. The Court noted that, prior to that year, Delhi had been part of the province of Punjab, but on 17 September 1912 Delhi was separated and constituted as a distinct province administered by a Chief Commissioner. This re-organisation created a need for legislation to decide which laws would continue to apply in the newly created province. Rather than drafting an entirely new body of statutes, the British authorities enacted the Delhi Laws Act. Under section 2 of that Act, the whole body of law that had been in force in the territory immediately before its removal from Punjab was declared to continue in force. Section 7, on the other hand, authorised the Provincial Government of the new province – that is, the executive authority – to extend, by notification, any enactment that was in force anywhere in British India on the date of the notification, to the Delhi area, with or without imposing restrictions or modifications. The Court observed that it was not contested that the Delhi Laws Act had been passed by a legislature. The controversy, however, revolved around whether the legislature that enacted the Act possessed the authority to confer upon the Provincial Government – an entity that was not itself a legislative body – the essentially legislative power to introduce new laws into the province that had not previously existed there. The Court then explained that the legislature responsible for enacting the Delhi Laws Act in 1912 was the legislative section of the Governor-General in Council, commonly referred to for convenience as the Governor-General in Legislative Council. This body derived its authority from an Act of the British Parliament, originally the Charter Act of 1833, and its composition and powers had been modified over time by subsequent statutes such as the Charter Act of 1853 and the Indian Councils Acts of 1861, 1892 and 1909. Nevertheless, in 1912 this body remained the principal legislative authority in India, exercising powers that, in that year, were sourced from section 22 of the Indian Councils Act of 1861. The Court pointed out that, to ascertain the scope of those powers, one must look to the language of the 1861 Act. Unfortunately, the Act granted only general powers, leaving the precise meaning of those powers open to interpretation. The Court further noted that it had been conceded that there was no express provision in the enabling legislation that specifically authorised the Governor-General in Legislative Council to delegate to another authority the extensive powers embodied in section 7 of the Delhi Laws Act. Nonetheless, the opposing party argued that the right to delegate such powers was inherent in the general authority to legislate, and that, since the Governor-General in Legislative Council was empowered to legislate for various territories including the Province of Delhi, it possessed the inherent right to enact the provisions of the Delhi Laws Act as part of its ordinary legislative functions.

The Court observed that the Governor-General in Legislative Council possessed the authority to act in the Delhi Laws Act as part of its ordinary legislative functions for the Province of Delhi and other territories over which it legislated. The Court then turned to the fundamental question of what constitutes legislative power within a State or a part of a State. It noted that scholars and jurists from Great Britain, Canada, Australia, India, the United States of America and various European countries have expressed widely divergent views on this issue. The Court held that a detailed examination of all those opinions would not be productive, because ultimately the matter reduced to a single point: the notion of legislative power differs from country to country and often varies even among commentators within the same jurisdiction, and there is no universally accepted definition. Consequently, the Court said that it must formulate its own conclusion and select the approach that appears most appropriate. In doing so, the Court indicated a preference for what it termed the “British point of view” for several reasons. The Court explained that the matter at hand concerned an Act of the British Parliament and a country that, at the relevant time, was governed by British authority. Legislative authority in India, the Court said, derived from Britain, and the Governor-General in Legislative Council was a creation of the British Parliament. Therefore, when Parliament conferred upon that body the power to legislate, it was necessary to ascertain Parliament’s intention and to identify the matters that Parliament regarded as falling within the scope of legislative power. The Court stated that the proper method for this inquiry was to examine the usage and practice of the British Parliament in comparable situations and to see how British courts had interpreted such Acts. The Court clarified that it was not seeking to scrutinise the absolute legislative power of the British Parliament itself—an authority that no court can question—but rather to examine the nature of the powers that Parliament delegated to subordinate legislatures such as the Governor-General in Legislative Council, which Parliament had created at various times throughout the British Empire. The Court further expressed a desire to avoid technical terms that have acquired specialized meanings yet lack consensus, citing words such as “sovereign,” “abdication,” “delegated authority,” and “separation of powers.” It held that a full-scale analysis of those concepts was unnecessary because the issue before the Court was confined to a narrower field. Finally, the Court projected itself back to the year 1912 and indicated that the appropriate perspective was the one that British courts, especially the Judicial Committee of the Privy Council, would have adopted. In this regard, the Court referred to the decision in Croft v. Dunphy (1933).

In a Canadian decision reported in A.C. 156 at 161, the Judicial Committee observed that it would be difficult to imagine the Imperial Parliament granting the Dominion Parliament full authority over customs while simultaneously withholding from it the power to enact provisions similar in scope to those that had long formed an integral part of Imperial customs legislation and were presumably recognized as necessary for the effectiveness of that legislation. The Court’s observation was used to support the view that, when interpreting section 22 of the Indian Councils Act of 1861 together with the later Acts of 1892 and 1909, it is essential to consider the fact that the British Parliament was aware of a number of judicial pronouncements concerning the range and limits of the legislative authority bestowed upon legislatures created by the Imperial Parliament. For the specific issue of the Delhi Laws Act, the Court held that a single authority would suffice, namely the decision reported as The Queen v. Burah at page 5 I.A. 178. That decision of the Judicial Committee was rendered in 1878 and originated from India. While the Lords’ judgment contained several broad observations, the Court limited its present discussion to a narrower point that it considered more directly relevant to the matters before it.

The 1878 judgment concerned an Act of the Governor-General in Council passed in 1869, which had been challenged as being beyond the powers granted by the Imperial Parliament. At the time of the Act’s passage, the territories known as the Khasi Hills and the Garo Hills were governed respectively by Act VI of 1835 and Bengal Regulation X of 1822. Section 3 of the impugned Act repealed those earlier statutes as they applied to the Khasi Hills, while section 4 expressly excluded the Garo Hills from the operation of the repeal. Section 8 provided that the Lieutenant-Governor of Bengal could, by publishing a notification in the Calcutta Gazette, extend to the Garo Hills any law, or any part of a law, then in force in other territories under his administration or subsequently enacted by the Governor-General’s Council or the Lieutenant-Governor, for the purpose of making laws and regulations. Section 8 further authorized the Lieutenant-Governor to direct the persons who would exercise any powers or duties arising from the extended provisions and to issue any order he deemed necessary to give effect to those provisions. Section 9 authorized the Lieutenant-Governor to apply the mechanism of section 8 to the Khasi Hills as well. These provisions were attacked on the ground that they exceeded the authority of the Governor-General, a claim the Judicial Committee described as ultra vires. The Lords examined, as recorded on page 190 of the report, whether the entire Act of 1869 should be declared void, and identified two principal bases for the challenge: first, that the Act represented a delegation of legislative power rather than a proper piece of legislation, and second, that the Governor-General in Council was attempting to create a new legislative body.

The Court observed that the contention that the Governor-General in Council was attempting to create a new legislature, as alleged on page 194, was rejected. Both of the challengers’ submissions were dismissed. The first submission was rejected on the basis that the Indian Legislature was not an agent or delegate of the British Parliament. The second submission was rejected because the measures taken did not have the effect of establishing a new legislative body. The Court then turned its attention to the second submission. In dealing with that point, the Judicial Committee explained its reasoning. Referring to the argument that a new legislature had been created, the Committee said that, in its opinion, no such creation or attempt had been made in the present case. It explained that what had actually been done was that the Governor-General in Council, in the normal course of legislation, resolved to remove a particular district from the jurisdiction of the ordinary courts and offices and to place it under new courts and offices appointed by, and answerable to, the Lieutenant-Governor of Bengal. The resolution left to the Lieutenant-Governor the power to determine the date on which the change would take effect and also authorised him, not to make any new laws for that district or any other district, but to apply, by public notification, to that district any law or part of a law that either already existed or might later exist, provided it was enacted by proper legislative authority in the other territories subject to his government. The legislature further determined that a certain change should take place, but it was expedient to leave the timing and manner of putting that change into operation to the discretion of the Lieutenant-Governor. It also found that the laws existing or potentially existing in the other territories subject to the same government might be suitable for application to the district, yet because it was not certain that every such law, in whole or in part, could be applied with equal convenience, it was likewise expedient to entrust that discretion to the Lieutenant-Governor.

The author noted that a detailed inquiry into the juridical principles underlying that decision would not be undertaken at that stage, because the decision itself provided direct authority for the proposition that a legislative body – labelled “A” – created by the British Parliament to enact laws for an area consisting of X, Y and Z, possesses certain powers. First, body A may repeal all laws existing in a particular sub-area X that has been carved out of the larger area X + Y + Z and over which A has legislative jurisdiction. Second, body A may authorise a purely executive authority – labelled “B” – which is under subordinate executive and legislative control of Y and which does not exercise executive charge over X, to select for X any laws that are then in force in Y or Z, whether those laws were made by legislature A or by a subordinate legislature operating in Y. This formulation sets out the scope of authority that the Court considered to be vested in the legislature that enacted the Delhi Laws Act.

In the analysis the Court explained that an executive authority designated B could be authorised to select, in whole or in part, any law that might later be enacted by the primary legislature identified as A for the territories referred to as Y or Z, or by another subordinate legislature that was not A but that operated under the control of B for Y. The Court then applied this principle to the present matter concerning the Delhi Laws Act. The legislature that passed the Delhi Laws Act was the same body that had legislated in the earlier Burah case, although its composition had changed. In the Burah case the legislative authority derived from the Acts of 1833, 1853 and 1861. In the present case the authority was derived from that same series of Acts together with the statutes of 1892 and 1909. The later statutes altered the composition of the legislature and introduced certain changes in the legislative process, but the overall power to enact legislation continued to rest upon section 22 of the Imperial Act of 1861, just as it had in Burah. Accordingly, for the purpose of illustration the Court held that the entity A remained the same, while B became the Provincial Government of the newly created province of Delhi and X represented the area covered by that new province. The territories Y and Z comprised the remaining provinces that were not part of X. Section 7 of the Delhi Laws Act, which had been enacted by legislature A, granted the executive authority B, which administered area X, four distinct powers. First, B could apply to X, with or without restriction or modification, any law then in force that had been made by A for Y or Z. Second, B could similarly apply to X any law that had been made by a Provincial Legislature for Y. Third, B could apply to X any law that might later be made by A for either Y or Z. Fourth, B could apply to X any law that might later be made by a Provincial Legislature in Y, even if that legislature was not under B’s charge, for Y. The Court observed that the only divergence from the Burah case lay in items two and four. The Privy Council had upheld the provision that empowered B to choose for X any laws made by A, which meant that, at least to that extent, section 7 must be sustained and the remaining issue in each case would be whether the Provincial Government had selected a law originating from the Central legislature or from a Provincial legislature. Moreover, the Privy Council had gone further and permitted B to select a Provincial law as well, although in that earlier case the scope of selection was limited to Provincial laws in territories over which B, as Lieutenant-Governor, exercised both executive and legislative control. In the Delhi scenario the range of selection is broader, extending to provinces that are not under B’s charge. The Court questioned whether this broader field created any principled difference and concluded that, as far as the authority of A was concerned, it did not. The Court also noted that the Judicial Committee had described the laws which the Lieutenant-Governor was

The Court observed that the expression “laws which were or might be in force in other territories subject to the same Government” referred, when read together with section eight from which the words were taken, to other territories that were under the authority of the Lieutenant-Governor rather than under the Governor-General. In the earlier case, the area from which the Lieutenant-Governor could choose was limited because the 1869 Act that applied there imposed such a restriction. The Court noted that the Delhi Laws Act of 1912 contained no comparable limitation on the territory from which the law-making authority could select statutes.

Turning to the earlier decision in Burah’s case, the Court noted that the Privy Council had upheld a statute enacted by Legislature A which empowered an executive authority B—an authority that bore the same relationship to Legislature A as the Provincial Government of Delhi—to select and apply, within a defined area X that lay within the legislative jurisdiction of A, statutes that had been passed by a Provincial Legislature elsewhere in India and that also fell under the legislative competence of A. The Court held that this situation was exactly mirrored in the present matter. The only distinguishable point, the Court said, was that in Burah’s case the Lieutenant-Governor could select “any law, or any portion of any law,” whereas the present provision permitted the Provincial Government to extend the specified enactments “with such restrictions and modifications” as it deemed appropriate. The Court concluded that this difference did not affect the substance of the power granted. Accordingly, placing itself in the position of a British court of 1912 bound by the Privy Council’s precedents, the Court would find, on that narrow ground, that section seven of the Delhi Laws Act of 1912 was within the legislative competence and therefore intra vires. The Court could scarcely imagine that the Privy Council, adhering to its own earlier rulings, would have decided otherwise.

The Court then examined the Ajmer-Merwara (Extension of Laws) Act, 1947, focusing on the challenged provision, section two, which was worded in a manner substantially similar to the earlier statutes. In this instance, the power to introduce statutes was conferred on the Central Government, an executive body, rather than on a Provincial Government. The Court noted that, as in the previous legislation, the Central Government could introduce not only statutes enacted by the Central Legislature but also those passed by Provincial Legislatures, and that the statutes available for introduction comprised both those in force at the date of the Act and those that might be enacted in the future. The Court recognized that by the time of this legislation the character of the Indian Legislature had undergone a radical transformation, but it held that this change did not alter the essential nature of the power to extend laws. Consequently, the Court found no material difference that would affect the validity of the provision.

Finally, the Court considered the impact of the Government of India Act, 1935. That Act introduced a federal element into the governance of the country and provided a constitutional framework that divided legislative authority between the centre and the provinces, assigning the residuary power to the centre. However, the Court observed that, apart from this division, the Act did not modify the fundamental concept of legislative power. The Court referred to section twenty-two of the Indian Councils Act, 1861, which had previously defined the scope of legislative authority, and noted that the basic principle underlying the power to make laws remained unchanged despite the new federal structure.

Governor-General in Legislative Council was empowered to “make laws” for all persons and things within British India, although that authority was subject to certain prescribed limits. For example, the Governor-General could not enact any law that altered or affected an Act of the Imperial Parliament unless such power was expressly authorised, yet the authority that was conferred did include the power exercised under the Delhi Laws Act. The Government of India Act of 1915, which consolidated the earlier statutes that dealt with the government of the country, made no alteration to this situation, even though Parliament then had before it the case of The Queen v. Burah. In 1935, despite the statutory division of power between the centre and the provinces, the essential concept of the legislative power was not changed; only the method of its operation was modified. Indeed, the sphere of authority was enlarged because the Federal Legislature was empowered to make laws having extra-territorial application, a right that the Indian Legislature had not possessed up to that time. Section 99 authorised the Federal Legislature to “make laws” for the whole or any part of British India, subject, however, to the other provisions of the Act. Those other provisions merely divided the subjects on which legislation was permissible and said nothing about the essential elements that constitute the legislative power. The language used in Section 99 is the same as the language found in the Government of India Act of 1915. To the mind of the Court, the fundamental fact remains that we are still dealing with an Act of the British Parliament that enacts a law for India. It is therefore reasonable to conclude that Parliament’s concept of the essentials of legislative power had not altered, especially when the same wording appears in the statutes of 1861 and 1915.

The next step in the historical development is the Indian Independence Act of 1947, which converted India into a Dominion and conferred even wider powers upon its legislatures. The limitations on legislation that Section 108 of the 1935 Act had imposed were removed. Nevertheless, as far as the essential content of the legislative power is concerned, the position remained the same and the same language was employed, namely that the Dominion Legislature “may make laws etc.” No fresh limitation on its law-making powers was introduced. Even after India obtained independence and the right to frame its own constitution, the old constitution—framed by the British Parliament—continued to operate until a new constitution was adopted. The situation at that juncture resembled that of Canada. The observations of Viscount Haldane in Attorney-General for the Commonwealth of Australia v. The Colonial Sugar Refining Company Limited [1914] A.C. 237 at 253 are therefore pertinent. Consequently, at the base, the analysis still involves construing an Act of the British Parliament, viewing these legislatures through British eyes, and considering what answer the Privy Council would have given regarding the validity of this law in 1947 when it was enacted, in the face of The Queen v. Burah.

The Judge expressed absolute confidence that the legislation in question would have been upheld by the Judicial Committee. He stated that further inquiry was unnecessary because, although extensive litigation on similar statutes had occurred after the relevant date, not a single decision of the Judicial Committee had ever cast doubt on the validity of the Burah case. On the contrary, the Burah decision had been repeatedly cited in successive cases throughout the Dominions, and the broad scope of its reasoning had been consistently affirmed. Consequently, the Judge concluded that the same Act under consideration would also be upheld. He emphasized, however, that his conclusion rested on the same narrow principle previously applied and that he had not attempted to define the full scope of legislative power. His inquiry was limited to the specific question of whether the two statutes were intra vires. In his view, the statutes were intra vires in British eyes because, irrespective of any broader conception of legislative authority, the Privet Council had already ruled that this category of Acts was valid, and that when the British Parliament created another legislature for the proper governance of a country it envisaged this type of legislation as being within that legislature’s competence. This limited reasoning sufficed for the two statutes under discussion.

The third statute to be examined was the Part C States (Laws) Act, 1950, and the provision under scrutiny was Section 2. The opening portion of Section 2 followed the pattern already familiar to the Court. It authorised the Central Government, by means of a notification, to extend to any Part C State—except three specified states—any law that was in force in a Part A State on the date of the notification, subject to “such restrictions and modifications as it thinks fit.” The provision also empowered the Central Government, when extending such a law, to insert a clause authorising “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.” This latter clause extended the reach of the power considerably beyond earlier statutes. Setting that aside, the Judge noted that this law was enacted in 1950, after the Indian Constitution had come into effect, and consequently the Court was treading on virgin soil. The legislature that enacted the Act was the Indian Parliament, a body not created by the British Parliament and not bound by the traditional British notion of legislative sovereignty. Instead, the Parliament derived its authority from the Constituent Assembly of India, which, while borrowing elements from the British model, also incorporated ideas from the American, Canadian, Australian and Japanese systems, and added its own innovations to produce a distinct constitutional framework. The Judge argued that it was therefore inappropriate to interpret the Act through the lens of foreign legal traditions or the judgments of other countries’ courts, because the Indian Constitution reflected a unique amalgam of influences rather than a direct import of any single model. We have.

The Court sought to determine, from the Constitution itself, the view of legislative power that the Constituent Assembly held when it created the Indian Parliament. It asked what the framers believed they were accomplishing when they gave life to a new Parliament and what notion of legislative authority guided them. To answer this question, the Court considered the historical facts and material that were available to the Assembly at the time of drafting. The first material the Assembly examined was the British parliamentary model, under which Parliament was regarded as supreme and beyond judicial review of its statutes. However, the Assembly deliberately rejected that model by establishing a federal structure that divided legislative competence among different levels of government. It further rejected the British approach by enacting a constitution that contained fundamental laws and by distinguishing between the exercise of constituent power and ordinary legislative activity. The Constitution expressly made Parliament incompetent to legislate in certain matters, as reflected in article 249 (3), thereby limiting its authority. Finally, the Assembly fashioned an elaborate constitutional framework within which Parliament could operate, showing that legislative power was intended to be circumscribed by the Constitution itself. Having examined the British model, the Court turned to other sources that the Assembly might have consulted concerning limited forms of legislative bodies. On one side, they retained the flexible British concept that favored the widest possible devolution of authority short of creating an entirely new legislature. The Court noted that the Privy Council in The Queen v. Burah held that the Governor-General in Council could not, by any enactment, create in India a new legislative power not authorised by the Councils Act. Subsequent cases repeated this principle, but the Court declined to analyze them further, stating that it was seeking underlying principles rather than binding precedent. The Court described this inquiry as venturing onto ‘virgin soil,’ indicating that no prior Indian authority directly addressed the issue. In contrast, the Assembly also considered the American model, which embraces a rigid separation of powers, as well as the Canadian and Australian experiences that lie between the two extremes. To determine the Assembly’s view of this complex problem, the Court listed several considerations that it deemed relevant. First, it observed that all free societies recognize that governing a modern state with endless complexities requires a substantial devolution and delegation of authority. The Court said that this principle is self-evident and needs no citation of authority. Second, the Court noted that the practical application of this principle has been demonstrated over time in India, other parts of the former British Empire, and even in England itself. Third, the Court observed that even American judges have, at times, moved away from the strictness of their original separation-of-powers doctrine to accommodate practical necessities.

The judges have tried to devise ways and means for softening the strictness of the doctrine, but they have not always succeeded in concealing, amid a flood of language, the reality that they are in fact departing from the original principle because circumstances have compelled them to do so. I consider it relevant to note that for close to a hundred years this country has been administered under a system derived from British practice, and that the present Constitution resembles the Government of India Act of 1935 in the manner in which it addresses the powers of legislation. Consequently, the notion of those legislative powers is something to which the peoples of India and the authorities who govern them have become accustomed over nearly a century. That familiarity indicates that the concept must have been regarded as appropriate, for otherwise the Constitution would have expressly negated it in the same way it has rejected other matters deemed unsuitable for this country.

In contrast, it must be observed that Parliament has not been left completely free except when exercising its constituent powers; the Constitution has placed restraints upon it. Certain matters have been declared fundamental and specific guarantees have been conferred. The people of India have been endowed with the gift of a free way of life, and the nation has been constituted as a Sovereign Democratic Republic. Yet, as was inevitable, limitations have been placed on that freedom because absolute liberty does not exist; if every individual acted solely according to personal desire, chaos would ensue and the safety of the State would be imperilled. Some of these limitations are directly forged into the Constitution, while others are merely anticipated, allowing Parliament the duty to determine, within fixed limits, the timing, location, manner and extent of any further restrictions that may become necessary. I am of the opinion that in those cases Parliament is not free to delegate its authority, for it cannot entrust to another a function that the Constitution has committed to its own careful supervision. The people are therefore entitled, in such situations, to the fruits of Parliament’s mature deliberation, its patriotism and its collective wisdom. I would distinguish the following two situations: when Parliament is free to legislate in a general manner on a particular subject, it may do so in the manner that has become commonplace in this land over the years; however, it is not desirable to prescribe universal rules, and each matter must be examined according to its own facts as it arises. The sole limitation is that any action taken must constitute legislation. Conversely, when the Constitution, particularly the Chapter on Fundamental Rights, directs Parliament to perform a specific task—such as fixing a maximum period of detention under article 22(7)(b)—that duty cannot, in my opinion, be

In this case the Court explained that it would not go beyond the principle that Parliament may not delegate the specific duties imposed on it by the Constitution. The Court began by citing Article 245(1) of the Constitution, which provides that, subject to the Constitution, Parliament may make laws for the whole or any part of the territory of India and that a State Legislature may make laws for the whole or any part of the State. The Court noted that this wording is identical to section 99(1) of the Government of India Act, 1935, apart from the changes that result from India’s altered constitutional status. However, the Court observed that the Constitution contains new provisions, notably the Chapter on Fundamental Rights, which introduce matters that were not present in the earlier statute. The Court held that when a right is declared fundamental and its scope is defined, any alteration to that right must be made only in the manner expressly permitted by the Constitution; any other method would diminish the solemnity of the guarantee and would treat the fundamental right as an ordinary piece of legislation. The Court clarified that the purpose of the guarantees concerning fundamental rights was to protect individuals from arbitrary executive action that impinges on personal liberty. The guarantee does not merely state that the executive may detain a person at will or that it may extend detention only if it wishes; rather, it declares that detention beyond a specified period may occur only after the people’s elected representatives, after due deliberation, have fixed a longer period. Accordingly, when such a limitation is fixed, no further delegation of that power to the executive or any other authority is permissible. The Court underscored that a departure from the normal legislative method was intended in this class of cases, especially where the Constitution contains express provisions that bar Parliament from making certain laws, such as Article 249(3), and where it provides specific authority for delegation, for example, Article 357.

Turning to Article 356, the Court explained that this article contemplated a situation in which the constitutional machinery of a State failed. In that event the President was empowered to declare that the State Legislature’s powers would be exercisable by or under the authority of Parliament. When such a declaration was made, Article 357(1)(a) authorised Parliament to confer on the President the legislative powers of the State and to permit the President to delegate those conferred powers to any other authority of his choosing. The Court was explicit that this power of conferring authority could not itself be delegated; only Parliament possessed the competence to grant the necessary authority to the President. Parliament could not leave the decision to another person and then authorize that person to act on its behalf. The Court’s reasoning therefore affirmed that the Constitution allows delegation only where it is expressly provided, and that the specific functions assigned to Parliament under the Constitution, particularly those relating to fundamental rights and emergency provisions, are not subject to further delegation.

In this passage, the Court observed that the argument presented relied on the proposition that the Constitution permits delegation of legislative authority only when it is expressly authorized. The counsel argued that if the power to delegate were inherent in the power to legislate, then the provision of article 357 would be redundant. Accordingly, the fact that the Constitution expressly permits delegation in certain situations was taken to mean that there is no general power of delegation. While acknowledging the force of that argument, the Court expressed disagreement. The Court explained that article 357(1)(a) does not concern what the Privy Council formerly held to be a non-delegation of legislative power; rather, it confers on Parliament the authority that the Privy Council had previously said an Indian legislature could not exercise before the Constitution, namely, the power to create a new legislature and to equip it with a general legislative authority. The Court said it would not engage in a detailed debate over the precise definitions of “delegation” or “essential legislative power.” It noted that, irrespective of other authorities, the Privy Council in the case of Burah had ruled that there was no delegation of legislative power but an ordinary exercise of such power. The Privy Council had also held that the creation of a new legislature was beyond the competence of the Indian legislature as it then existed. The Court clarified that, in enacting article 357(1)(a), the Constituent Assembly expressly expressed the view that Parliament did not possess an inherent right to create a new legislature; Parliament could do so only when expressly empowered to act. However, the Court added that this statement does not imply that the Constituent Assembly also believed Parliament lacked the power to perform functions that had historically been part of the normal role of an Indian legislature since The Queen v. Burah in 1878. The Court further observed that the particular concept of legislative power identified in that earlier case has not been altered or repealed by the Constitution except in the specific instances where the Constitution provides otherwise. Consequently, the Court preferred to hold that the authority recognized in The Queen v. Burah remains valid except in the special cases expressly provided for by the Constitution.

The Court then stated that it adopted this position for an additional reason: to avoid rendering the governance of India excessively difficult and to prevent a reversal of constitutional progress. The Court emphasized that, guided by historical logic, the concept of legislative power that had long been accepted in India should continue to operate, but with the limitation that the Constitution imposes. Specifically, wherever the Constitution authorizes Parliament to perform a particular act rather than to legislate in a general sense on a subject, there can be no delegation; Parliament must act itself. The Court further acknowledged that this principle does not exhaust the entire issue, noting that jurisprudence from the earliest times has also recognized certain limitations on legislative authority. The Court indicated that, even when examined from a British perspective, a legislature created by the British Parliament could not exceed the scope of its powers as defined by the instrument that created it, could not establish a new legislature for general legislation, and could not abdicate its responsibilities. The Court affirmed that the same constraints apply to the Indian Parliament, which, unlike the British Parliament, is bound by the Constitution.

From a purely British perspective, a legislature that is created by the British Parliament is subject to three essential limitations. First, it cannot act beyond the scope of the powers that are defined in the instrument that establishes it. Second, it does not have the authority to create a new legislature for the purpose of enacting general legislation. Third, it may not abdicate its own responsibilities. These limitations have been derived from a series of cases that will be referred to later. The Court is of the opinion that the same three limitations apply to the Indian Parliament, because, unlike the British Parliament, the Indian Parliament is not free to act as it wishes; it is bound by the Constitution.

The Court does not wish to discuss the concept of sovereignty, recognizing that the notion varies depending on the viewpoint. One view may hold that Parliament is fully sovereign because, by attaining the required majority and following the prescribed procedure, it can amend the Constitution and confer upon itself any powers it chooses. Another view, however, shows that the framers of the Constitution deliberately placed restrictions on change, and each case requires an interpretation of the compact made between the Union, the States, and the people of India. In the words of Viscount Haldane in Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Company Ltd. [[1914] A.C. 237 at 256], “Their Lordships are called upon to interpret the legislative compact made between the Commonwealth 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.” The Court observes that questioning whether this arrangement confers full sovereignty is merely a matter of wording. It acknowledges that Parliament possesses amendment powers, but it remains clear that until Parliament chooses to amend the Constitution, it is bound by the Constitution and by the consequences that flow from it. The label given to a body that holds such powers and is circumscribed by these limitations is of little importance; the critical question is the scope of those powers and the extent of the limitations.

Regarding the British concept, the limitations applicable to any legislature that is created by a written instrument and is bound by the terms of that instrument—whether the instrument is an Act of the British Parliament or otherwise—have been articulated over time. The earliest statement of these principles appears in the 1871 case The Queen v. Burah [5 I.A. 178], which has already been mentioned. That decision set out the three limitations described above. Additionally, the judgment at page 194 observed that the powers given to the Lieutenant-Governor in that case were not to make laws at his discretion but to apply to the new territory any law that was already, or might later become, in force by proper legislative authority in the other territories under his government.

In this part of the judgment, the Court traced a line of authority drawn from several British-imperial decisions that illuminate the limits of a legislature that derives its existence from a written instrument. The earliest authority cited was the 1871 case of The Queen v. Burah, where the Court observed that a Lieutenant-Governor could not legislate at will but was required to apply, in the newly acquired territory, any law that was then in force or might become operative by proper legislative authority in other territories under his government. The principle was reiterated in the 1882 Canadian decision Russell v. The Queen, in which the Privy Council explained that a provision making certain parts of an Act operative only upon a petition by a majority of electors did not vest legislative power in those petitioners; rather, Parliament itself set the condition and all consequences that follow the satisfaction of that condition. Two years later, the Judicial Committee described such delegated power as “ancillary to legislation” in the Canadian case Hodge v. The Queen. In the 1919 Canadian case In re The Initiative and Referendum Act, the Committee further held that a legislature of the type under consideration could not create a new legislative power of its own that was not already conferred by an Act to which the legislature owes its existence. The Indian decision King-Emperor v. Benoarilal Sarma (1944) reiterated the same rule, stating that the Indian Legislature could not transfer its legislative duty to any other authority. Finally, the 1946 Canadian case Co-operative Committee on Japanese Canadians v. Attorney-General for Canada was quoted, where the Court stressed that an executive authority acting under legislative delegation does not acquire an independent law-making status; its orders, though called “law,” are in effect statutes enacted by Parliament at the time of their promulgation, and Parliament remains the sole legislative authority for the Dominion. The Court expressed the view that this principle is equally applicable to India.

The Court then explained why it limited its research to British precedents and did not go beyond the Privy Council. It noted that British courts have generally been more willing than other jurisdictions to accept the type of legislation under review, and that the Court’s immediate concern was with the concept of legislative power long familiar to the country before the present Constitution. The Court emphasized that the framers of the Constitution had to decide whether to uproot, prune, restrain, or merely lift a system that had been deeply rooted for a century. After an exhaustive review of the many authorities, books, and decisions referenced in the arguments, the Court concluded that no single logical principle could be extracted from them, as each decision appeared to be made ad hoc to fit the circumstances of the case before the judges. Consequently, the Court sought to avoid reliance on disputed doctrinal terms and instead accepted the historical legacy, dealing with the issue in a practical manner. The final inference was that the Indian Parliament retained the power, following the principle laid down in The Queen v. Burah, to delegate the introduction or application of existing laws—whether enacted by Parliament or by a State Legislature under the Constitution—to another person or body for any part of India under its legislative control. This practice had historical acceptance, practical justification, and, in the Court’s view, had not been displaced by the Constitution.

In this case, the Court observed that, to address the immediate demands of the matters before it, judges had often interpreted words and expressions in a manner that allowed the insertion of principles of general application that might not otherwise be present. Accordingly, the Court endeavoured, as far as possible, to avoid reliance on such disputed terminology and chose instead to accept the historical legacy and to treat the issue in a practical fashion. The Court concluded that Parliament possessed the power to legislate in the manner established by the decision in The Queen v. Burah; that is, Parliament could delegate to another person or body the task of introducing or applying statutes that existed at that time in any part of India under parliamentary legislative control, whether those statutes had been enacted by Parliament itself or by a State Legislature created under the Constitution. The Court noted that this practice had historically been followed, that it rested on strong practical considerations, and that it did not appear to have been displaced by the Constitution. Nevertheless, the Court held that such delegation could not extend beyond this limited scope and could not include the power to repeal or fundamentally alter provisions of laws already operative in the relevant area, a function that remained exclusively within Parliament’s authority. The Court found no justification for broadening the scope of legislative delegation beyond the long-standing limits that had been honoured. The Court further remarked that, but for the fact that this type of delegation had been endorsed by the Privy Council as early as 1878 and repeatedly affirmed in subsequent decisions, and for the practical necessities of the present case, all three Acts would have been declared ultra vires. Regarding the latter portion of the third Act, the Court observed that no authority had been cited in which the power to repeal existing statutes and substitute new ones had been upheld. The Court referred to the South African decision Sir John Gorden Sprigg v. Sigcau [1897] A.C. 238, in which the Privy Council ruled that such a power could not be exercised, noting that the decision was not based on grounds material to the present case but was the only case known to the Court where the issue had been litigated. The Court distinguished the act of filling a legislative void from the act of discarding statutes enacted by a competent authority, emphasizing that the former did not constitute a delegation of legislative power. While acknowledging the authority of the earlier precedent, the Court indicated deference to that wisdom for past practice. Looking forward, the Court felt that a body entrusted with legislative powers should itself enact legislation rather than entrust significant principled decisions to other entities, and therefore expressed the opinion that such delegation should be confined to the narrow scope historically recognised.

In this case, the Court observed that the authority affirmed in The Queen v Burah does not reach the later portion of section two of the Part C States (Laws) Act of 1950. The Court further explained that when the Constitution assigns Parliament the exclusive power to enact a specific class of legislation, rather than to legislate generally on a subject, such an assignment cannot be treated as a delegation of power. The Court recognised that this principle does not draw a sharp, precise line, and that each matter will have to be decided on its own factual matrix as it arises. It also acknowledged that the approach is not strictly logical, because it must reconcile a legacy that rests more on practical necessity than on abstract reasoning. Accordingly, the Court described its task as navigating a middle path between two historically-derived doctrines that have become part of the Indian conception of legislative authority before the present Constitution. One doctrine, for sound and pragmatic reasons, permits a relatively wide scope for delegation, even though the terminology of “delegation,” “legislation,” “sovereignty,” and “abdication” may be given special meanings to conceal that breadth. The opposite doctrine holds that newly-created legislative bodies may not be established by legislatures that are themselves constrained, and consequently that the core law-making function cannot be transferred. Both doctrines are regarded as sound, and there are compelling reasons for preserving each, a stance that the Privy Council has consistently defended since 1878. The Court found it difficult to uphold these opposing principles side by side while maintaining strict logical consistency. It therefore sought to give practical effect to both, accepting that this method would inevitably produce divergent views among judges in individual cases. The Court noted that such a practical accommodation is, in its view, the only workable way to address a situation already marked by considerable conceptual confusion. It added that this approach follows the pattern of British jurisprudence that has guided the legal system for centuries, providing a stable foundation for keeping legislative and executive actions in balance, provided the powers are exercised sparingly and with moderation. Under those circumstances, courts are unlikely to intervene. Trouble, however, arises when a doctrine based on sound practical considerations is pushed progressively farther until the line between permissible delegation and a virtual abdication of legislative functions becomes so thin that even a common-sense observer on the street would perceive an unlawful transfer of authority.

The Court also expressed a personal aversion to this type of legislation, describing it as a form of responsibility-shifting that it does not favor. It emphasized that the principal duty of a legislature is to enact laws itself, rather than to delegate that core function to others. While acknowledging the historical and practical pressures that have shaped the present constitutional framework, the Court indicated that it cannot, in light of past practice and the necessities of a modern State, deem the matters discussed to be beyond Parliament’s competence, provided the limitations previously identified are observed. The Court further hoped that the powers in question would be employed only sparingly, both on principle and for practical expediency, noting that the experience of the present case and lessons from history make the associated risks unmistakably clear. It warned that legislation of this nature is perpetually vulnerable to challenge and remains a gamble as to how judicial outcomes may fall. Finally, the Court concluded that timely and prudent action, akin to a stitch in time, can prevent greater difficulties, echoing the cautionary experience even in jurisdictions like England where Parliament enjoys unfettered authority.

In this case, the Court observed that the essential function of a legislature is to enact law itself and not to delegate that primary responsibility to other bodies. The legislature must carefully evaluate whether it is appropriate to introduce new statutes or to repeal or amend existing statutes, taking into account the essential details of each measure. Nevertheless, the Court said that, after considering the nation’s historical experience and the requirements of a modern state, it could not conclude that the matters previously discussed, even when read with the limitations that had been mentioned, lie outside the authority of Parliament. The Court expressed a hope that Parliament would employ the powers in question only sparingly, guided both by principled considerations and by practical necessity, because the facts of the present case and past experience plainly demonstrate the dangers involved. The Court warned that legislation of this sort is constantly vulnerable to challenge and that its success is always uncertain, likening the situation to a gamble where the outcome of the dice cannot be predicted. The Court further noted that this is precisely the type of situation where timely and prudent action can prevent far greater problems later. Even in England, where Parliament enjoys virtually unlimited authority, a committee that examined the desirability of such legislation advised that the exercise of parliamentary power in this field should be restrained. The Court held that the reasons offered by that English committee acquire even greater relevance in the Indian context.

The Court then answered the specific reference that had been posed. First, it held that Section 7 of the Delhi Laws Act, 1912, falls within the competence of the legislature that enacted it, and likewise that Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, is intra vires. Second, the Court found that Section 2 of the Part C States (Laws) Act, 1950, is also intra vires, except for the final sentence of that provision, which reads: “and provision may be made in any enactment so extended, for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.” The Court concluded that this concluding sentence exceeds the legislature’s power and is therefore ultra vires, but it qualified this finding by stating that the offending portion can be severed from the remainder of the Act, leaving the rest of the legislation valid. Finally, the Court qualified its answers by explaining that the authority to “restrict and modify” does not include the authority to make essential alterations. That power is limited to minor adjustments that are necessary to adapt a law drafted for one jurisdiction to another, to harmonise it with existing state law, or to delete sections that pertain solely to a different area. The Court emphasized that any change that alters the essential character of a statute or modifies its material provisions amounts to legislation itself, and all authorities agree that such a core legislative power cannot be delegated by a legislature that is not absolutely unrestricted.