In Re The Delhi Laws Act, 1912 vs The Part C States (Laws) Act, 1950

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 23 May 1951

Coram: Hiralal J. Kania, Saiyid Fazal Ali, Mehr Chand Mahajan, Vivian Bose, B.K. Mukherjea

In this matter, the Supreme Court of India rendered its judgment on the twenty-third day of May, nineteen-fifty-one. The case was titled In Re The Delhi Laws Act 1912 versus The Part C States (Laws) Act 1950. The opinion was authored by Justice Hiralal J. Kania, who also acted as Chief Justice. The bench that heard the appeal was composed of Justice Hiralal J. Kania, Justice Saiyid Fazal Ali, Justice Mehr Chand Mahajan, Justice Vivian Bose and Justice B.K. Mukherjea. The petition was filed by the entity identified as “In re The Delhi Laws Act 1912, the Ajmer-Merwara (Extension)”, and the respondent was the “Part C States (Laws) Act 1950”. The official citation of the decision appeared in the All India Reports as 1951 AIR 332 and in the Supreme Court Reports as 1951 SCR 747. In addition to these primary citations, the judgment was subsequently referenced in a long series of law reports, including but not limited to R 1952 SC 75, RF 1952 SC 123, D 1952 SC 252, R 1953 SC 252, R 1954 SC 465, RF 1954 SC 569, R 1957 SC 414, RF 1957 SC 510, R 1958 SC 468, R 1958 SC 682, R 1958 SC 909, R 1958 SC 956, R 1959 SC 512, E & F 1959 SC 749, E 1960 SC 833, RF 1961 SC 4, R 1961 SC 954, RF 1961 SC 1381, RF 1961 SC 1519, RF 1962 SC 981, F 1964 SC 381, R 1965 SC 745, R 1965 SC 845, R 1965 SC 1107, MV 1966 SC 693, D 1966 SC 1788, RF 1967 SC 212, RF 1967 SC 1048, R 1967 SC 1480, RF 1968 SC 1232, RF 1969 SC 549, RF 1971 SC 454, RF 1973 SC 1461, D 1974 SC 669, R 1974 SC 1660, R 1975 SC 1549, RF 1975 SC 2299, D 1976 SC 714, RF 1979 SC 1475, R 1980 SC 650, RF 1980 SC 882, C 1982 SC 710, R 1982 SC 1126, R 1984 SC 1130, R 1990 SC 560, RF 1992 SC 522, among others, reflecting the extensive reliance placed on this decision in later jurisprudence.

The substantive issue before the Court concerned three statutory provisions that empowered the extension of laws from one jurisdiction to another. Section 7 of the Delhi Laws Act 1912 stipulated that the Provincial Government could, by issuing a notification in the official Gazette, extend any enactment that was in force elsewhere in British India to the Province of Delhi, or to any part thereof, and could do so with such restrictions and modifications as it deemed appropriate. Section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947 similarly authorized the Central Government, by Gazette notification, to extend any enactment existing in any other Province to the Province of Ajmer-Merwara, again with any restrictions and modifications it thought fit. Section 2 of the Part C States (Laws) Act 1950 further empowered the Central Government to extend, by Gazette notification, any enactment that was in force in a Part A State to any Part C State or to any part of such State, subject to restrictions and modifications as deemed necessary, and also permitted the provision of a repeal or amendment of any corresponding law then applicable to that Part C State. The Court’s headnote summarized these provisions, emphasizing the legislative intent to allow governments to adapt laws from one region to another while retaining the authority to impose conditions and modifications.

Section 7 of the Delhi Laws Act, 1912 declared that “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.” Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 similarly provided that “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.” Section 2 of the Part C States (Laws) Act, 1950 added that “the Central Government may, by notification in the official gazette, extend to any Part C State 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…which is for the time being applicable to that Part C State.” After a decision of the Federal Court raised doubts about the validity of statutes that delegated legislative powers to the executive, the President of India invoked Article 143(1) of the Constitution and referred the question to the Supreme Court. The reference asked the Court to consider whether the aforementioned sections, or any part of them, were in any manner ultra vires the legislatures that had enacted them, and if so, to what extent and in what particulars the provisions exceeded legislative authority.

The Court’s judgment was delivered by a majority comprising Justices Fazl Ali, Patanjali Sastri, Mukherjea, Das and Bose, with Chief Justice Kania and Justice Mahajan dissenting. The majority held that Section 7 of the Delhi Laws Act, 1912 and Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 were wholly intra vires and therefore valid. In dissent, Chief Justice Kania held that those two sections were ultra vires to the extent that they authorised the Government to extend Acts other than those of the Central Legislature to Delhi and Ajmer-Merwara, reasoning that such power amounted to an abdication by the Central Legislature and an unlawful delegation to the executive. Justice Mahajan also found those sections ultra vires, stating two grounds: first, that they permitted the executive to apply legislation enacted by legislatures that lacked competence to legislate for those territories; and second, that they equipped the executive with legislative authority that was co-extensive with that of the legislatures, particularly in modifying laws made by legislative bodies throughout India. Regarding the Part C States (Laws) Act, 1950, the majority concluded that the first portion of Section 2, which allows the Central Government to extend any enactment in force in a Part A State to a Part C State with appropriate restrictions and modifications, is intra vires.

The Court noted that the authority to extend a law that is in force in a Part A State is within constitutional limits and therefore intra vires. Per Chief Justice Kania, together with Justices Mahajan, Mukherjea and Bose, the latter portion of the provision that empowers the Central Government to make a provision, in any enactment extended to a Part C State, for the repeal or amendment of any law other than a Central Act which is then applicable to that Part C State, was held to be ultra vires. In contrast, Justices Fazl Ali, Patanjali Sastri and Das observed that the latter portion of section 2 of the Part C States (Laws) Act, 1950, is intra vires. Chief Justice Kania further expressed the view that, to the extent section 2 of the Part C States (Laws) Act, 1950, enables the Central Government to extend laws passed by any legislature of a Part A State to a Part C State, such empowerment exceeds constitutional authority and is ultra vires. Justice Mahajan, however, held that section 2 of the Part C States (Laws) Act, 1950, is ultra vires insofar as it authorises the Central Government (i) to extend to a Part C State laws enacted by a legislature that lacks competence to make laws for that Part C State, (ii) to make modifications of laws made by the legislatures of India, and (iii) to repeal or amend laws already applicable to that Part C State.

Chief Justice Kania then set out a detailed discussion of the nature of legislative power. He explained that the essential elements of a legislative function are the determination of legislative policy and its formulation as a rule of conduct; these elements constitute the distinctive character of a legislature. He further observed that such essentials are preserved when a legislature specifies the basic factual conclusions upon which, after appropriate ascertainment by a designated administrative agency, it orders that its statutory command become effective. Once the legislature has enacted its law, the detailed work required to implement and operate the enactment may be performed either by the legislature itself or may be delegated to a subordinate agency or to an executive officer. While this delegation is sometimes described as a delegation of legislative powers, Kania clarified that it differs fundamentally from a true delegation of legislative power because it does not involve delegating the authority to determine legislative policy or to formulate the rule of conduct. He noted that the ancillary power to make rules and regulations, often recognized as a necessary accompaniment to legislative power, does not amount to a true delegation of legislative power. Moreover, he pointed out that prior to the Government of India Act 1935, the Indian legislature possessed no authority to delegate legislative power in its true sense, and that, unlike the British Parliament whose powers are absolute, a general power to delegate legislative authority is not recognised in any state. He concluded that the powers of the Indian legislature under the Constitution Acts of 1935 and 1950 are similarly constrained in this respect. Kania further observed that an abdication of legislative powers need not be total; a partial abdication may occur when full powers are conferred on a subordinate authority, although the legislature retains the power to control that subordinate authority by recalling the delegated powers or by repealing the acts passed by it, thereby effecting a limited effacement of the legislature’s own functions.

The Court observed that when a legislature grants a subordinate authority the power to make rules, the legislature retains the ability to control that authority by recalling the delegated power or by repealing any enactments made by the subordinate body. If such a power is granted without retaining the right to recall or repeal, the legislature has effectively abdicated or effaced its own legislative authority. Justice FAzL ALl articulated several principles on this matter. First, the legislature must discharge its primary legislative function directly and not through another entity. Second, once the legislature’s sovereign power within a defined sphere is recognized, it may legislate in whatever manner it deems most suitable to achieve its intended policy, and it may employ external agencies to the extent necessary for tasks it cannot perform itself or finds inconvenient. Third, the legislature may not relinquish its legislative functions; therefore, when delegating power to an external agency, it must ensure that the agency remains a subordinate instrument and does not become a parallel legislature. Fourth, because Indian courts are not bound by the American doctrine of separation of powers, the only checks on legislative delegation in India are the legislature’s own prudence and the principle that delegation must not cross the threshold into abdication and self-effacement. Fifth, the authority to introduce necessary restrictions and modifications is incidental to the power to adapt or apply the law; such modifications must be confined within the framework of the enabling Act and must not alter the Act’s identity, structure, or essential purpose.

Justice PATANJALI SASTRI further affirmed that the Indian Legislature, when acting within the limits of its constitutional authority, possesses plenary legislative powers comparable in scope and nature to those of the British Parliament, and that no constitutional provision in the Indian Councils Act of 1861, the Government of India Act of 1935, or the Constitution of 1950 imposes a limitation on the Legislature’s ability to delegate legislative power to subordinate units. Accordingly, the Indian Legislature is fully competent to enact statutes that delegate legislative authority, both in quantity and quality, in the same manner as the British Parliament, provided it operates within the prescribed limits. The Court distinguished between delegation of legislative authority and the creation of a new legislative power. In a delegation, the delegating body retains its legislative power intact and merely chooses to exercise that power through an agency or instrument of its choice. By contrast, creating a new legislative power involves granting authority to an independent, co-ordinate body that can make laws of its own force, a step that requires an explicit enabling provision. For ordinary delegation, no specific statutory authorization is required.

In the absence of any constitutional prohibition, the Court observed that a legislature could delegate its legislative power, no matter how extensive the delegation, provided that the body which delegated the power kept its own legislative authority fully intact. The Court added that where a delegation involved the creation of a new legislative power rather than the mere exercise of an existing one, the Constitution must contain a positive provision expressly permitting that delegation.

The Court further explained that the maxim “delegates non potest delegare” was not a rule of Indian constitutional law and possessed only the weight of a political guideline. Consequently, the judiciary could not declare a parliamentary act unconstitutional merely because Parliament chose, in a particular instance, to entrust part of its legislative authority to another body it trusted, even if such entrustment appeared contrary to democratic norms. The Court emphasized that an action deemed politically undesirable could nevertheless be constitutionally permissible.

Turning to the wording of the Constitution, the Court noted that even if the phrase “restrictions and modifications” were given a very broad interpretation, such an interpretation would not render the delegating statute unconstitutional. The expression, according to the Court, did not alter the constitutional validity of a statute that delegated legislative functions.

Justice Mahajan set out his reasoning in several points. First, he reiterated the settled principle of constitutional law that a legislative body cannot transfer its core power to another entity. He stressed that the very concept of representative government rests on the doctrine that legislative authority is non-transferable. The legislature, he said, could not replace the judgment, wisdom and patriotism of the people-chosen body with that of any other institution. He rejected the view that, unless expressly forbidden, a legislature possessed a general power to delegate its legislative duties to a subordinate authority. Instead, he held that only an express constitutional grant could authorize such delegation. Since the Indian Constitution did not contain an express provision allowing a legislature to delegate essential legislative functions, the Court concluded that the legislature lacked any authority to do so.

Justice Mahajan then addressed the notion of abdication. He clarified that abdication by a legislature did not necessarily mean a total surrender of its powers. An abdication occurred, in his view, when the legislature, regarding a particular subject listed in the Legislative List, declared that it would not legislate on that subject and would leave the legislative responsibility to another body. This, he explained, constituted a partial withdrawal rather than a complete effacement of legislative power.

Justice Mukherjee added further observations on the constitutional limits of delegation. He stated that the Indian Legislature could not assume the same position as the sovereign British Parliament and that the permissibility of delegation had to be derived from a careful construction of the explicit provisions of the Indian Constitution. He rejected the notion that an unlimited right of delegation was inherent in legislative power, noting that such a right was not supported by the constitutional text. According to the Justice, the legitimacy of any delegation depended entirely on it being employed as an ancillary measure that the legislature deemed necessary for the effective and complete exercise of its legislative functions. He emphasized that the legislature must retain the essential legislative duties, which principally involve declaring legislative policy and setting the standards that subordinate legislation must follow.

The Court explained that the core legislative function consists of formulating the legislative policy and setting the standard that must become part of the law; the task that may be delegated is the preparation of subordinate legislation, which by its nature serves as an ancillary measure to the primary statute that confers the delegated power. The Court held that, as long as the legislative policy is expressed with sufficient clarity or a clear standard is laid down, the judiciary should not interfere with the discretion that naturally belongs to the legislature in determining how much delegation is required in any particular situation. Justice Das articulated several propositions. First, the principle of non-delegation of legislative powers, whether derived from the doctrine of separation of powers or from agency theory, does not apply to the British Parliament or to a legislature created by an Act of the British Parliament. Second, given the perpetual complexity of conditions confronting governments, delegation of power is necessary, ancillary to the exercise of legislative authority, and forms an integral component of that authority. Third, any act performed under delegated power operates directly and immediately under, and by virtue of, the law that granted the delegation, and its effectiveness is traceable to that original enactment. Fourth, when the legislature acts within the general scope of the empowering words and does not breach any explicit condition or restriction that limits that power, the courts have no jurisdiction to further inquire or to expand those conditions or restrictions by constructive interpretation. Fifth, while the legislature remains within its prescribed domain, there is, except as later indicated, no quantitative limit on its power to delegate; it is for the legislature alone to decide the extent of reliance on subordinate agencies and the duration of such reliance, and the courts must not impose any ceiling on that delegating power. Sixth, the power of delegation is qualified by the requirement that the legislature may not abdicate or efface its own essential capacity; that is, it may not, without preserving its own authority, create a new legislative power that is neither created nor authorised by the parent Act that gave rise to the legislature’s existence. Seventh, the statutes under challenge may also be upheld as examples of conditional legislation, consistent with the precedent set in Queen v. Burah. Justice Bose added that the Indian Parliament may legislate in the manner described in Queen v. Burgh, meaning that it may entrust another person or body with the introduction or application of laws that exist at that time in any part of India under Parliament’s legislative control, whether those laws were enacted by Parliament itself or by a State Legislature established by the Constitution. However, such delegation cannot extend beyond that scope; it cannot include the power to repeal or to alter in essential respects laws that are already in force in the concerned area.

In this judgment, the matter was heard under special jurisdiction pursuant to Special Reference No. 1 of 1951. The Court explained that the President had issued a Special Reference, and the factual circumstances that prompted the President to make that reference, together with the specific questions presented for consideration, were set out in the full text of the reference dated 7 January 1951, which the Court reproduced in its entirety. The reference began with the following statements: “WHEREAS in the year 1912 the Governor-General of India in Council acting in his legislative capacity enacted the Delhi Laws Act, 1912, section 7 of which conferred power on the Central Government by notification to extend to the Province of Delhi (that is to say, the present State of Delhi) or any part thereof, with such restrictions and modifications as it thought fit, any enactment which wag in force in any part of British India at the date of such notification;” and continued, “AND WHEREAS in 1947 the Dominion Legislature enacted the Ajmer-Merwara (Extension of Laws) Act, 1947, section 2 of which conferred power on the Central Government by notifica-tion to extend to the Province of Ajmer-Merwara (that is to say, the present State of Ajmer), with such restrictions and modifications as it thought fit, any enactment which was in force in any other Province at the date of such notifica-tion;” The reference further stated, “AND WHEREAS, by virtue of the powers conferred by the said sections of the said Acts, notifications were issued by the Central Government from time to time extending a number of Acts in force in the Governors’ Provinces to the Province of Delhi and the Province of Ajmer-Merwara, sometimes with, and sometimes without, restrictions and modifications, and the Acts so extended and the orders, rules, by-laws and other instruments issued under such Acts were and are regarded as valid law in force in the Province (now State) of Delhi and in the Province of Ajmer-Merwara (now State of Ajmer), as the case may be, and rights and privileges have been created, obligations and liabilities have been incurred and penalties, forfeitures and punishments have been incurred or imposed under such Acts and instruments;” The reference then turned to the legislative scheme for the Part C States, noting, “AND WHEREAS Parliament with the object inter alia of making a uniform provision for extension of laws with regard to all Part C States except Coorg and the Andaman and Nico-bar Islands enacted the Part C States (Laws) Act, 1950, section 2, of which confers power on the Central Government by notification to 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 also confers the power on the Central Government to make provision 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;” Finally, the reference concluded with, “AND WHEREAS section 4 of the Part C States (Laws) Act, 1950 has repealed section 7 of the Delhi” and the Court noted that the words “are already in force in the area in question” followed this clause, indicating the limitation recognized by the legislation on extending laws that were already operative in the territory concerned. The Court then proceeded to consider the legal issues raised by these provisions.

The President observed that although section 7 of the Delhi Laws Act, 1912, and the Ajmer-Merwara (Extension of Laws) Act, 1947, had been formally repealed, the effect of the provisos to those repealing provisions was to keep, notwithstanding the repeal, the Acts that had been extended to the Province of Delhi and the Province of Ajmer-Merwara, or to the States of Delhi and Ajmer, in continuing force. In other words, the legal instruments that had originally extended the Acts to those territories remained operative despite the statutory repeal. The President further noted that, from time to time, the Central Government had issued notifications under section 9 of the Part C States (Laws) Act, 1950, extending statutes that were in force in Part A States to various Part C States; some of those extensions were made subject to certain restrictions or modifications, while others were made without any such conditions. The President then referred to the decision of the Federal Court of India in Jatindra Nath Gupta v. Province of Bihar, reported in 1949 F.C.R. 595, where the 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 the proviso conferred upon the Provincial Government the power to modify an Act of the Provincial Legislature, thereby amounting to an impermissible delegation of legislative authority. As a consequence of that judgment, the President explained that doubts had been raised concerning the validity of 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, as well as concerning the statutes that had been extended to the Provinces of Delhi and Ajmer-Merwara and to various Part C States pursuant to those sections, together with the orders and other instruments issued under the extended statutes. He further pointed out that the validity of section 7 of the Delhi Laws Act, 1912, section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, and the statutes extended under those provisions had been challenged in several pending matters before the Punjab High Court, the Court of the Judicial Commissioner of Ajmer, and the District Court and subordinate courts in Delhi. In view of the foregoing observations, the President concluded that a number of questions of law of considerable public importance had arisen, making it appropriate to obtain the opinion of the Supreme Court of India. Accordingly, exercising the power conferred on him by clause (1) of article 143 of the Constitution, the President, Rajendra Prasad, formally referred the following questions to the Supreme Court for consideration and report: (1) whether section 7 of the Delhi Laws Act, 1912, or any of its provisions, was ultra vires the Legislature that enacted that Act; and (2) whether the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions, was ultra vires the Legislature that enacted that Act.

In the reference made by the President of India under article 143 of the Constitution, the Court was asked to give its opinion on three specific questions. The third question sought to determine whether section 2 of the Part C States (Laws) Act 1950, or any provision contained in that section, was ultra vires the Parliament, and if so, in what particular respects. The oral arguments on this reference were heard over a series of days in April 1951, specifically on the ninth, tenth, eleventh, twelfth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh and thirtieth days of that month. Counsel appearing on behalf of the parties included M C Setalvad, Attorney-General for India, assisted by G N Joshi, representing the President of India; C K Daphtary, Advocate-General of Bombay, also assisted by G N Joshi, appearing for the State of Bombay; R Ganapathy Iyer for the State of Madras; M L Saxena for the State of Uttar Pradesh; A R Somanatha Iyer, Advocate-General of Mysore, with the assistance of R Ganapathy Iyer, appearing for the State of Mysore; P S Safeer for Captain Deep Chand; N S Bindra for Pt Amarnath Bharadwaj; M M Gharakhan for the Ajmer-Electric Supply Co. Ltd.; N C Chatterjee, accompanied by G C Mathur, Basant Chandra Ghose and Tilak Raj Bhasin, for the Maidens Hotel; Jessaram Banasingh for Runglal Nasirabad; Jyoti Sarup Gupta and K B Asthana for the Municipal Committee, Ajmer; and Din Dayal Kapur for Shri Munshilal and two other persons. The judgments were delivered on 23 May 1951, with Chief Justice Kania pronouncing the opinions of the Court.

Chief Justice Kania explained that the reference concerned the President’s request for the Court’s opinion on three matters. The first question asked whether section 7 of the Delhi Laws Act 1912, or any provision therein, was ultra vires the legislature that enacted it, and, if so, in what particular respects. Section 7 of that Act provides that 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 was in force in any part of British India at the date of such notification. The second question concerned the Ajmer-Merwara (Extension of Laws) Act 1947 and asked whether section 2 of that Act, or any of its provisions, was ultra vires the legislature that passed it, and again, in what particular respects. Section 2 of the 1947 Act states that 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 was in force in any other Province at the date of such notification. The third question, reproduced above, concerned section 2 of the Part C States (Laws) Act 1950, which reads: “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 …”. The Court proceeded to examine each question in turn, addressing the constitutional scope of legislative authority exercised under the respective statutes.

The provision concerning Coorg and the Andaman and Nicobar Islands stated that the Central Government could, by publishing a notice in the Official Gazette, extend to those territories—or to any part of them—any law that was in force in a Part A State at the date of the notification, provided that the Government thought the extension appropriate and applied any restrictions or modifications it deemed necessary. The provision also allowed that, if a law was extended in this manner, the Central Government could make provisions within the extended law to repeal or amend any corresponding law, other than a Central Act, that was then applicable to that Part C State. The three sections referred to in the three questions all dealt with the delegation of legislative power, and the three Acts were chosen deliberately to illustrate the issue at three major stages in India’s constitutional development. The first stage addressed the legislative authority of the Indian Legislature before the Government of India Act, 1915; the second concerned its legislative power after the Government of India Act, 1935, as amended by the Indian Independence Act of 1947; and the third examined the power of the Indian Parliament under the Constitution of 1950. Consequently, it was necessary to understand the scope of the Indian Legislature’s powers during each of these periods. Without entering into unnecessary detail, a brief historical background was useful. The East India Company originally began as a trading enterprise in India and gradually acquired political influence. Eventually, the Crown of England became the legislative authority over the areas that had come under Company control. The Indian Councils Act of 1861, in section 22, granted the Governor-General in Council, together with additional nominated members, the authority to enact laws. Thus, the British Parliament, as the sovereign body that enacted the Indian Councils Act, conferred legislative powers on the Governor-General in Council for the territories administered by the Crown. Under the English constitutional system, the British Parliament, comprising the King and the two Houses of Parliament, held supreme and unchallengeable sovereignty, lacking any written charter to limit its powers. Its authority was based on convention but was regarded as absolute, unfettered, and uncontrolled. Sir Cecil Cart, in his work on English Administrative Law, observed that a fundamental distinction between the United States and Britain was that Britain possessed no written constitution or fundamental statute to serve as a benchmark for all other legislation, and that the King in Parliament could enact any law, including constitutional amendments, without a special, solemn process. Even Magna Carta, he noted, was not immune to alteration.

The passage begins with the fragment “inviolate ……….” and then explains that the essential feature of the English Constitution was the close union and almost complete fusion of executive and legislative powers. By means of the Cabinet system, executive authority was placed in a committee composed of members of the dominant political party who also sat in the legislature and represented the country. The reference to Halsbury’s Laws of England, volume six, article 429, adds that because of this fusion there exists no law that the King in Parliament cannot create or repeal, whether the law concerns the Constitution itself or any other matter. Consequently, unlike states that have a fixed and rigid Constitution set out in a written document, England does not require a judicial body to test whether a particular statute falls within constitutional limits, because no such distinct constitutional test exists. Moreover, statutes that alter the Constitution can be passed with the same ease and through the same procedure as ordinary legislation. The text goes on to note that, as the practice of granting powers to subordinate bodies became more frequent and the scope of those powers expanded, questions arose about the wisdom of such delegations. In response, a Committee on the Minister’s Powers—commonly known as the Donoughmore Committee—was formed. That Committee advised Parliament to observe certain cautions when conferring powers on subordinate entities. This advice was deemed natural because the English Constitution is founded on the well-recognised doctrine that Parliament is supreme and absolute, and no other legislation can limit its authority. A legislature that holds supreme power therefore possesses certain inherent characteristics. One of these characteristics is that it is improper to label any law passed by such a sovereign body as “constitutional,” because the concept of constitutionality presupposes the existence of a touchstone against which laws can be measured. Since the British Parliament is a sovereign body without any external benchmark, all of its enactments are simply laws, and there is no distinction between “constitutional” and “non-constitutional” statutes. All statutes may be amended or repealed by the same Parliament with the same facility as any other law. The logical result of this doctrine is that no court or other authority possesses the power to declare an Act of Parliament unconstitutional. The passage then cites Dicey’s ninth edition of Law of the Constitution, which, while examining the French Constitution, observes that France’s supreme legislative authority under the Republic does not reside in a separate ordinary Parliament of two chambers. Instead, it is vested in a National Assembly or Congress composed of the Chamber of Deputies and the Senate meeting together. The French constitutions, in this respect, resembled other continental systems and were described by the author as rigid in contrast to the expansive flexibility of English institutions. A flexible constitution, the author explains, is one in which every law of any description can be altered with the same ease and through the same procedure by the sovereign legislative body.

In England the Constitution is regarded as flexible because the Crown together with the two Houses of Parliament possess the authority to amend or repeal any law in the same way that they may enact a statute authorising, for example, a company to construct a new railway line from Oxford to London. Consequently, statutes in England are described as constitutional only insofar as they deal with matters that affect the fundamental institutions of the State, and not because they are intrinsically more sacred or more difficult to alter than ordinary legislation. Under these circumstances the phrase “constitutional law or enactment” is seldom applied to any English Act in order to give a precise description of its nature. By contrast, in a system that is described as having a rigid constitution the term “constitutional” signifies that a particular enactment forms part of the constitutional articles and therefore cannot be changed with the same ease and in the same manner as ordinary statutes. That distinctive feature grants courts the power to decide whether a given piece of legislation is permissible under the constitution. Such a question cannot arise in relation to any enactment of the British Parliament because the Parliament is sovereign. In contrast, the legislative authority of the Governor-General in Council, which derived its powers from the Indian Councils Act, occupied a different position. The charter of that body was the Indian Councils Act itself, and its powers were expressly defined and limited. Those powers could at any time be withdrawn, altered, expanded or further curtailed, and because they were conferred by an Act of the British Parliament, a court could always be called upon to determine whether the Governor-General in Council acted within the scope of its legislative authority. In the ninth edition of Dicey’s Law of the Constitution the author distinguishes between a sovereign legislature and a subordinate law-making body, noting that subordinate legislatures possess only a limited power to make laws. On page ninety-nine, Dicey specifically examined the Legislative Council of British India prior to 1915 and observed: “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 bye-laws… 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.”

The Indian Legislative Council was bound by a large number of rules that it could not amend itself, and which only the Imperial Parliament could change. The statutes from which the Council derived its authority were themselves immutable by the Council, creating a clear distinction between those fundamental statutes and the subordinate legislation the Council could enact. Those fundamental statutes imposed specific restrictions on the subjects upon which the Council was permitted to legislate, thereby limiting its legislative scope. Indian courts retained the authority, when necessary, to adjudicate on the validity or constitutionality of laws enacted by the Council. Consequently, the Court concluded that between 1861 and 1915 the Indian Legislature functioned as a subordinate, not sovereign, legislature. At that time the Government of India was unitary rather than federal, meaning no division of legislative powers existed between a central authority and the provinces. While the British Parliament was supreme, its executive government served only as long as Parliament permitted and was not a separate, dissolvable entity. Thus, in Britain the legislature effectively controlled the executive, allowing the parliament to direct executive actions through its confidence and budgetary powers. In contrast, the Indian Governor-General was appointed by the Crown and, even after the expansion of the legislative body before the 1915 Act, exercised no control over the executive. Before the Government of India Act of 1915, the Secretary of State's control over the Indian Legislature was justified because provincial legislatures merely enlarged the executive for law-making and had no real power. The executive Government of India was not accountable to the Indian Legislature, and the composition of the Legislature ensured that executive officers together with nominated members formed the majority. Consequently, the Legislative Council functioned essentially as an instrument of the executive, its role largely limited to recording the executive’s decrees. Mr. Cowell observed in his lecture on Courts and Legislative Authorities in India that the laws produced by the Legislative Councils were, in effect, orders of the Government. Every bill passed by the Governor-General’s Council required his assent before it could become an Act, thereby reflecting the final approval of the colonial authority. The Indian Councils Act of 1892 authorized the Governor-General in Council, with the Secretary of State’s approval, to make regulations concerning the conditions for nominating additional members.

The Secretary of State in Council was authorised to issue regulations governing the conditions under which additional members could be nominated. The legislation deliberately avoided using the term “election.” A salient feature of the Act was the presence of a strong official bloc within the Councils. As a commentator on the Indian Constitution observed, the Government exercised tight and close control over the conduct of official members in the Legislature, prohibiting them from voting according to their own discretion. These officials were not permitted to ask questions, move resolutions, or, in certain Councils, intervene in debates without prior Government approval. Their principal role was to cast votes in line with the Government’s position. Consequently, even when non-official speakers delivered eloquent and well-reasoned arguments, the moment for voting arrived the silent official faction would intervene and vote against the non-official proposals. These circumstances rendered the Council’s proceedings unreal, because the number of elected members was small and the outcome of many issues was effectively predetermined. In a speech delivered in the House of Lords in December 1908, concerning the Bill that led to the Government of India Act of 1909, Lord Morley, who was then Secretary of State for India, expressed that he had no intention of establishing a parliamentary system in India, stating that a parliamentary system was not a goal he would ever aspire to.

The Constitution of the Central Legislative Council, as defined by the Regulation of November 1909 and revised in 1912, enumerated its composition as follows: ordinary members of the Governor-General’s Council, the Commander-in-Chief and the Lieutenant-Governor; up to twenty-eight nominated members, of whom no more than twenty-eight could be officials; thirty-three elected members; and the Governor-General himself. This structure placed the executive government at the apex of authority, rendering it free from any obligation to obey or implement the legislature’s mandates. Historical instances are recorded where Finance Bills were rejected by the legislature or where popular sentiment favored certain Bills, yet the Governor-General overruled these decisions. The Indian Legislature possessed no power to act independently in such matters. No Bill could become an Act, nor could an existing Act be amended or repealed, without the consent of the executive government. Consequently, the Legislature could not retract powers that an Act, such as the Delhi Laws Act, had conferred on the executive without the executive’s agreement, making such powers effectively irrevocable. The author of the judgment considered it inappropriate to compare the status and authority of the Indian Legislature, as then constituted, with the supreme and sovereign character of the British Parliament. The legislative authority of the Indian Legislature was thereby altered by these developments.

The Court observed that the Act of 1915 created provincial legislatures, thereby introducing diarchy, but it did not establish a federation. It noted that under the Government of India Act, 1935, legislative authority was divided between a central legislature and provincial legislatures, each receiving exclusive jurisdiction over subjects listed in Lists I and II of the Seventh Schedule. List III comprised matters on which either the centre or a province could legislate, while the residual legislative power was governed by section 104. The Court emphasized that, although the 1935 Act laid out this distribution, it remained a statute enacted by the British Parliament; consequently, the British Parliament retained the ability to modify, enlarge, or restrict the powers of both the central and provincial legislatures without any participation by Indian legislators or the Indian populace. Furthermore, the Court pointed out that, even under this arrangement, the executive branch was not accountable to either the central legislature or the provincial legislatures, underscoring the absence of a fusion of legislative and executive functions that characterized the English constitutional model.

The judgment continued by stating that the Indian Independence Act, 1947 eliminated the British Parliament’s authority to legislate for India. It granted the Indian central legislature the power to transform itself into a Constituent Assembly tasked with drafting a Constitution for India and gave it the authority to amend or repeal the Government of India Act, 1935, which was to serve as the provisional constitution until a new one was adopted. Despite this transformation, the Court noted that the executive remained unaccountable to the central legislature, and, with the British Parliament’s control removed, the executive ceased to be answerable to any body. The Court then described the constitutional framework adopted on 26 January 1950, whereby executive authority of the Union was vested in the President, who acted on the counsel of the Ministers. A Parliament was constituted to enact laws, and a Supreme Court was established, its powers defined in various constitutional articles.

The Court explained that the Constitution allocated executive, legislative, and judicial functions among distinct organs, yet the constitutional provisions did not expressly vest legislative or judicial powers in those organs. It observed that, under the Constitution, Ministers were answerable to the legislatures, reflecting an adoption of the British parliamentary principle that the legislature holds the executive to account. Nevertheless, the Court highlighted that a fundamental difference persisted between the British Parliament and the Indian Parliament, a distinction that remained evident despite the incorporation of certain British parliamentary characteristics into the Indian constitutional scheme.

In this case the Court observed that the Indian Parliament is created by the Constitution of India, and that all of its powers, rights, privileges and obligations must be located in the relevant constitutional articles. The Court emphasized that Parliament is not a sovereign body with unlimited authority; instead, the Constitution grants it the power to enact legislation on matters that are enumerated in the appropriate provisions and Schedules, while also limiting its powers through other articles, particularly those contained in Chapter III that deal with Fundamental Rights. The Court explained that in an emergency threatening the safety of the Union, the Constitution expressly empowers the President to suspend the Constitution and to assume all legislative powers. Likewise, if the administrative machinery of a State breaks down, Article 257 authorizes the President to assume both legislative and executive powers to the extent and in the manner specified by that article. The Court held that, subject to all such limitations and controls, Parliament is supreme within the sphere of its authorized subjects, and its legislative powers are plenary. The Court then turned to the principal issue raised before it, namely the nature of the delegation of legislative powers. It noted that a legislative body that is sovereign in the manner of an autocratic ruler could, by a single decision, order the death of an individual or the acquisition of property by the State, and could even appoint another person to exercise all of its powers, because no other authority or tribunal could question that power. The submissions made on behalf of the President of India asserted that the power to legislate inherently includes the power to delegate to any person the legislature may choose to appoint. The Court explained that, whether the legislature is sovereign or subordinate, it may delegate its function only if the delegation satisfies three conditions. First, the delegation must relate to a subject or matter that lies within the scope of the legislative power of the body making the delegation. Second, the power to delegate must not be denied by the instrument that created or established the legislative body. Third, the delegation must not result in the creation of another legislative body possessing the same powers and performing the same functions, where such creation is prohibited by the instrument that established the original legislative body. The Court further noted that it was submitted that, in an unwritten constitution such as that of the United Kingdom, there is no affirmative limitation or negative prohibition on delegation, and therefore the power of delegation is fully included within the legislative power.

The British Parliament possesses the ability to nullify its own enactments, even to the extent of effectively withdrawing legislation, because it may pass a new law on the following day that repeals or annuls the law passed on the previous day. When that same Parliament, by means of its own Acts, created legislative bodies in territories such as India, Canada and Australia, those bodies were established on the basis of statutes that derived their existence from the British Parliament. Consequently, although the newly created legislatures were, in a technical sense, subordinate—since their continued existence and even their powers could be altered or terminated by a further Act of the British Parliament—they nevertheless enjoy supreme, plenary authority of the same character as that of the British Parliament for all matters that fall within the scope of their own legislative competence. Because the power to delegate is inherently included within the general power of legislation, each of those legislatures, subject to the three limitations previously outlined, also possesses a full power of delegation. These legislatures were not merely agents of the British Parliament; they acted as independent law-making bodies. Therefore, the doctrinal rule that a delegated power cannot itself be further delegated (delegata potestas non potest delegare) does not constrain their actions. When such legislatures choose to delegate authority to another institution for the purpose of making rules or regulations, or when they authorize the executive branch to enforce laws that they have enacted or that have been enacted by other legislatures—whether in whole or in part, and whether with or without restrictions or modifications—they are fully competent to do so. The historical development of legislation in England, in India and in the other Dominions supports this position, and the practice of delegation is evident in numerous Acts passed by the legislatures of those Dominions, including India. Over an extended period, the Judicial Committee of the Privy Council has recognised this mode of delegating legislative functions, and it is now too late to challenge the validity of such delegations. The counsel further argued that observations of the Federal Court in Jatindra Nath Gupta v. Province of Bihar (1) appeared to hold that delegation was not permissible and should be revisited. Before addressing those arguments in detail, the Court considered it essential to clarify precisely what the term “delegation” conveys. The word is not employed uniformly in scholarly discussions nor in certain judicial decisions, and its meaning can vary. When a legislative body enacts a statute, it is exercising its legislative function; the essential components of that function are the determination of legislative policy and the formulation of that policy into a rule of conduct. These core elements are intrinsic to a legislature itself and bear no relation to the principle of separation of powers found in the Constitution of the United States of America. Those essential features remain intact when the legislature sets out basic factual conclusions, upon which a designated administrative agency, after ascertaining the relevant data, is authorized to issue the statutory command as effective. Having thus made the law, it follows that every detail necessary for the practical operation and implementation of the enactments may be addressed either by the legislature itself or may be left to a subordinate agency or an executive officer.

In this passage, the Court explained that the task of working out the details of a statute may be carried out by the legislature itself or may be entrusted to a subordinate agency or to an executive officer. Although this practice is sometimes labeled as a delegation of legislative powers, the Court emphasized that it differs fundamentally from a true delegation of legislative power, which involves the determination of legislative policy and its expression as a rule of conduct. The Court observed that the term “delegation” is frequently employed without regard to this essential distinction. The Court noted that the so-called delegation, which authorizes the making of rules and regulations, has been regarded as ancillary to the power to define legislative policy and to formulate the rule of conduct. The principal issue raised by the Attorney-General concerned whether the legislature possessed the right to delegate the legislative functions themselves, that is, the core legislative authority. To support his argument that the legislative power of the Indian Legislature included the power to delegate, the Attorney-General cited several decisions of the Judicial Committee of the Privy Council as well as decisions of the Supreme Courts of Canada and Australia. The first authority he referred to was The Queen v. Burah (1). He described Act XXII of 1869, passed by the Council of the Governor-General of India for making laws and regulations, as legislation that removed the Garo Hills from the jurisdiction of the tribunals created under the General Regulations and other Acts enacted by any legislature in British India. The Act further provided that no later Act passed by the Council of the Governor-General for making laws and regulations would be deemed to extend to any part of that territory unless that part was expressly named in the Act. The administration of civil and criminal justice in the territory was placed in the hands of officers appointed by the Lieutenant-Governor as he saw fit. Sections 8 and 9 of that Act were then quoted. Section 8 authorized the Lieutenant-Governor, by notification in the Calcutta Gazette, to extend to the territory any law or any part of any law 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 for making laws and regulations; the Lieutenant-Governor could, upon making such an extension, direct who should exercise any powers or duties incident to the extended provisions and could issue any order he deemed necessary to give effect to those provisions. Section 9 permitted 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 Nags Hills, and to the portion of the Khasi Hills that at that time formed part of British India, with each notification required to specify the boundaries of the territories to which it applied. The Lieutenant-Governor of Bengal subsequently issued a notification exercising the power conferred on him by

Section 9 was used to extend the provisions of the Act to the area known as the Khasi and Jaintia Hills, and the extension explicitly removed the ordinary civil and criminal courts from having jurisdiction there. The Calcutta High Court, by a majority judgment, held that the notification effecting that extension possessed no legal force or effect. In the proceedings before the Calcutta High Court, counsel representing the Crown advanced the argument that the Indian Legislative Council possessed the authority to transfer legislative functions to the Lieutenant-Governor of Bengal. Justice Markby then framed the precise question for consideration: “Can the Legislature confer on the Lieutenant-Governor legislative power?” The answer presented was that, as a general principle of Indian law, any substantial delegation of legislative authority by the Legislature of the country is void.

Lord Selbourne, after agreeing with the High Court that Act XXII of 1869 fell within the legislative competence of the Governor-General in Council, examined the narrower issue of whether, consistent with that view, the ninth section of the Act should nevertheless be held void and ineffective. The Board observed that the majority of the judges of the Calcutta High Court based their decision on the view that the ninth section did not constitute legislation but amounted to a delegation of legislative power. They further noted that, in the leading judgment of Justice Markby, the principle of agency was invoked, and the Indian Legislature appeared to be treated as an agent or delegate acting under a mandate from the Imperial Parliament. The Board rejected that characterization.

The Board stated that the Indian Legislature possesses powers expressly limited by the Act of the Imperial Parliament that created it, and it cannot act beyond the limits set by that Act. However, when the Legislature acts within those limits, it is not in any sense an agent or delegate of the Imperial Parliament; rather, it has plenary legislative powers, intended to be as extensive and of the same nature as those of Parliament itself. The established courts, when confronted with a question of whether the prescribed limits have been exceeded, must determine that question by examining the terms of the instrument that affirmatively conferred the legislative powers and that negatively restricted them. If the action taken is legislation that falls within the general scope of the affirmative words granting the power and does not breach any express condition or restriction limiting that power, no court of justice may inquire further or constructively enlarge those conditions or restrictions.

The Board further affirmed that the Governor-General in Council could not, by any form of enactment, create in India a new legislative power that was not already created or authorised by the Council’s Act. In the present case, nothing of that sort had been done or attempted. What had occurred, the Board concluded, was that the Governor-General in Council had exercised its existing legislative authority in the ordinary course of legislation to remove a particular district from the jurisdiction of the ordinary courts and to place it under new courts and officers appointed by and responsible to the Lieutenant-Governor of Bengal, leaving the timing and manner of the change to the Lieutenant-Governor’s discretion.

It was recorded that the legislature, acting in the ordinary and regular course of law-making, decided to take a particular district out of the ordinary courts’ jurisdiction and to place it under newly created courts and offices. Those new courts and offices were to be appointed by, and answer to, the Lieutenant-Governor of Bengal. The act left it to the Lieutenant-Governor to determine the exact date on which this change would become effective. In addition, the legislation authorised the Lieutenant-Governor not to fashion new statutes for that district or any other district, but to apply, by means of a public notification, any existing law or any part of a law that was already in force, or might subsequently become law, under proper legislative authority in the other territories that were subject to his government. The legislature further stated that, at that stage, a specific change ought to be carried out, but it was expedient to entrust to the Lieutenant-Governor the discretion to decide both the timing and the manner of implementing the change. Moreover, the legislature observed that the laws currently operative, or that might become operative, in the other territories governed by the same administration were suitably appropriate to be applied to the district in question; however, because it was not certain that every such law, or each portion of those laws, could be applied with equal convenience, the legislature deemed it advisable to give the Lieutenant-Governor a discretionary authority on that point as well. This approach had already been applied to the Garo Hills. The same question then arose with respect to the Khasi and Jaintia Hills. The legislature concluded that it was proper that the adjoining district of the Khasi and Jaintia Hills should likewise be removed from the jurisdiction of the existing courts and placed under the same provisions that applied to the Garo Hills, to be done whenever the Lieutenant-Governor deemed it desirable. The legislature also recognised that it might be appropriate to apply only some, rather than all, of those provisions to the adjoining district, and accordingly vested a discretionary power in the Lieutenant-Governor for that purpose.

The essential portion of the judgment that addressed the question at hand was expressed in these words: “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 (XXI 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 (in their Lordships’ judgment).”

The Court observed that legislative powers may be exercised either in an absolute manner or subject to conditions. It noted that legislation which is dependent upon the use of particular powers or upon the exercise of a limited discretion, and which is entrusted by the legislature to persons whom it trusts, is a common occurrence and often proves highly convenient. The Court pointed out that the British Statute Book contains numerous examples of such conditional legislation and argued that there is no reason to assume that the Imperial Parliament, when it created the Indian Legislature, failed to contemplate this form of conditional legislation within the scope of the legislative authority that it periodically conferred. The Court emphasized that the Imperial enactments did not contain any language that excluded the possibility of conditional legislation being employed. It further referred to specific illustrations, namely the authority granted to the Governor-General in Council—acting not in a legislative capacity—to extend the Code of Civil Procedure by section 385 and the Code of Criminal Procedure by section 445 to additional territories. The Court held that entertaining a contrary conclusion would cast doubt upon the validity of a long series of statutes that were crafted to address the unique circumstances of India, many of which originated before 1861 and were, therefore, presumed to have been known to the Imperial Parliament when the Councils Act of that year was enacted. The Court found no support in either the affirmative or negative language of the Act for such a doubt and concluded that the cited judgment, although quoted at length as the basis for the Attorney-General’s argument, does not sustain the contention advanced.

The Court then summarized the observations of the Privy Council. First, it stated that the Garo Hills had been removed from the jurisdiction of the ordinary courts by the Act. Second, it noted that the same status applied to the Khasi and Jaintia Hills. Third, it observed that the power in question was to be exercised over areas that, despite the Act, remained under the administrative control of the Lieutenant-Governor. Fourth, it clarified that the authority conferred on the Lieutenant-Governor did not permit the creation of new laws but only allowed the extension of Acts already passed by either the Lieutenant-Governor or the Governor-General, both of which were competent legislatures for the respective province; the Lieutenant-Governor possessed no power to alter any existing law. Fifth, the Court rejected the view held by a majority of the Calcutta High Court judges that the Indian Legislature functioned as a delegate or agent of the British Parliament. Sixth, it affirmed that within the powers granted to the Indian Legislature, its authority was supreme and as plenary as that of the British Parliament. Seventh, it observed that the Indian Parliament, by virtue of the legislation, had not created a legislative body possessing all the powers it claimed. Finally, the Court dismissed the objection based on alleged delegation, concluding that the action in question was not a matter of delegation but rather an instance of conditional legislation.

The Court observed that the power involved was not an absolute legislative authority but rather a form of conditional legislation. Throughout the judgment there was no suggestion that the answer given by Justice Markby to the question he himself had framed, and which had been quoted earlier in the judgment, was erroneous. The judgment emphasized that the order issued by the Lieutenant-Governor derived its authority from the Act of the Governor-General, and not merely from the fact that it was an order of the Lieutenant-Governor. It further held that, within the legislation enacted by the Governor-General in Council, all the elements required to constitute valid legislation were present. That conclusion applied equally to future statutes, because the same legislative body remained appropriate for the area in question. Consequently, the decision was made with care and deliberation not to endorse the argument that the power of delegation was inherent in the power of legislation. The Board, after affirming that no delegation of legislative power had occurred, characterized the enactment as merely conditional legislation.

In the case of Emperor v. Benoari Lal Sarma and others, the Court considered the validity of the Special Criminal Courts Ordinance of 1942, which had been issued by the Governor-General pursuant to the powers vested in him when an emergency was declared at the outbreak of war. The validity of that Ordinance was challenged in India on two grounds. First, the language of the relevant section was said to indicate that the Governor-General, despite the preamble, did not actually consider an emergency to exist, but was instead making provisions for a possible future emergency. Second, the provision was alleged to amount to delegated legislation, whereby the Governor-General, without lawful authority, attempted to transfer the decision as to whether an emergency existed to the Provincial Government instead of deciding it himself. The provision of the Government of India Act, 1935, which was relied upon, read as follows: “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 restrictions 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.”

When rejecting the second ground of objection, the Lords observed that under paragraph 72 of Schedule 9 the Governor-General himself must discharge the duty of legislation and cannot shift that duty to any other authority. The Court therefore concluded that the Governor-General had not, in fact, delegated his legislative powers to anyone else. After restating that the action taken did not constitute delegated legislation, the judgment described the situation as an example of a not uncommon legislative arrangement, whereby the local application of a statutory provision is determined by the judgment of a local administrative body.

Their Lordships, considering the necessity of the issue, rejected the Federal Court’s majority view that the measure in question amounted to a delegation of legislative functions. They observed that if the power to delegate were truly encompassed within a broadly worded legislative authority, as the Attorney-General had argued, there would be no logical reason for the Privy Council to have dismissed the contention that the Act represented a delegated enactment and, instead, to have upheld it on the basis that it was merely conditional legislation. In further support of this reasoning, the Court reaffirmed a passage from Russell v. The Queen (1), which stated: “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 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 italics are mine). The Court noted that the statement received additional support from the Privy Council’s decision in The Queen v. Burah (2). It was further observed that the latter decision did not extend the analysis beyond the point already made. Although the enactment under review was introduced as a wartime measure, the Board emphasized that the Governor-General must personally discharge the legislative duty and may not transfer that duty to any other authority. Upon examining the impugned Act, and citing the authorities (1) 7 App. Cas. 629 and (2) 5 I.A. 178, the Court concluded that the Act contained within itself the complete legislative scheme for the matters it addressed and therefore involved no delegation of legislative powers.

A close examination of the cited decisions and the observations contained therein, in the view of the Court, clearly reveals that the propositions advanced by the Attorney-General were not supported; indeed, the judgments implicitly reject those propositions. While the Judicial Committee has pointed out that the Indian Legislature possessed plenary powers to legislate on subjects within its competence, and that such powers were of the same nature and as supreme as those of the British Parliament, the Committee did not endorse the claim that the Indian Legislature could, apart from being unable to create another body possessing identical powers, exercise unlimited power to delegate its legislative authority. Whenever the question of the Indian Legislature’s power to delegate legislative functions to subordinate bodies was directly presented before the Privy Council, each decision of the Judicial Committee repudiated the suggestion and characterized the mechanism employed as subsidiary or conditional legislation rather than as a true delegation. Consequently, while the Board reiterated that the powers of the Indian Legislature were “as plenary and of the same nature as the British Parliament,” no authority, in any case or under any circumstances during the preceding seventy years, has affirmed that the Indian Legislature possessed a general power of delegation as contended in the present case. Instead, the Board consistently examined the specific legislation under challenge and upheld its validity on the ground that it constituted conditional or subsidiary legislation. The same approach has been adopted by the Privy Council in relation to the Canadian Constitution. The terms “subsidiary” and “conditional legislation” are employed to indicate that the powers granted to subordinate bodies are not legislative powers but rather powers limited to implementing the enactment, or that, after the Legislature has performed its legislative function, it has specified certain factual conditions; once those conditions are verified by a designated administrative agency, that agency is authorized merely to bring the statute into operation. Even in such circumstances, the Board has expressly highlighted that the force of those rules, regulations or enactments remains derived from the primary legislation.

The Court observed that during the preceding seventy years no judicial pronouncement had ever affirmed that the Indian Legislature possessed a power of delegation as alleged in the present case. Such a declaration would have provided a direct, plain, obvious and conclusive answer to the argument raised by the Attorney-General. Instead, the courts have chosen to examine each piece of challenged legislation individually and to determine its validity on the basis that it constituted either conditional or subsidiary legislation. The Privy Council has adopted an identical approach when dealing with statutes under the Canadian Constitution, consistently analysing each enactment rather than endorsing a broad delegation power. Terms such as “subsidiary legislation” or “conditional legislation” are employed to signify that the powers given to subordinate bodies do not amount to legislative authority themselves. Instead, those powers are limited to implementing the enactment, to bringing it into operation and effect, or to acting on factual conclusions that the primary legislature has expressly prescribed. Even in such contexts the Board has explicitly stated that the authority of the rules, regulations or subordinate enactments does not originate from the decision of the administrative or executive authority to enforce them. The binding force of those instruments derives instead from the parent statute that the legislature itself enacted and thereby obtains its legal effect. Consequently, a careful reading of the authorities does not corroborate the position advanced by the Attorney-General in asserting a general power of legislative delegation. The Court then indicated that a series of decisions of the Privy Council, decided on appeals from the Supreme Court of Canada, as well as decisions of the Supreme Court of Canada itself, address the precise point under consideration and were cited by the Attorney-General. One such case is Hodge v. The Queen, an appeal from the Court of Appeal of Ontario, Canada, which raised the question of the validity of the Liquor Licences Act. The appellate judges, after holding that temperance legislation fell within section 92 of the British North America Act as a matter of “good government”, examined the objection that the Imperial Parliament had given no authority to the provincial legislature to delegate those powers to the Licence Commissioners. In other words, the contention was that the authority conferred by the Imperial Parliament on the provincial legislature must be exercised in its entirety by that legislature alone. The maxim delegata potestas non potest delegare, meaning that delegated power cannot itself be further delegated, was invoked to support this objection. Their Lordships observed that the objection was based on a complete misunderstanding of the true nature and position of provincial legislatures. They explained that provincial legislatures are not delegates of, nor do they act under a mandate from, the Imperial Parliament, but possess their own authority. When the British North America Act created a legislature for Ontario and gave its Legislative Assembly exclusive authority to make laws for the province on matters listed in section 92, it conferred powers that were not intended to be exercised by further delegation.

The Court explained that the authority of a local legislature does not arise from acting as agents of the Imperial Parliament, but rather from a full and independent power that is plenary and ample within the limits set by section 92. Within those limits of subject matter and geographical scope, the local legislature is supreme and enjoys the same authority that the Imperial Parliament, or the Parliament of the Dominion, would have possessed under comparable circumstances. The legislature may therefore delegate to a municipal institution or to a body it creates the power to make by-laws or resolutions on the subjects specified in the enactment, with the purpose of giving effect to the enactment. Such delegated authority is ancillary to legislation; without it, attempts to provide the detailed mechanisms and machinery required for implementation could become oppressive or could fail entirely.

The Court rejected the contention raised at the Bar that when a legislature entrusts important regulations to agents or delegates it thereby nullifies its own authority. The Court held that the legislature retains its full power and may, at any time it chooses, abolish the agency it has created, replace it with another agency, or assume direct control of the matter. Determinations as to how far the legislature will rely on subordinate agencies and the duration of such reliance are matters for the legislature alone and not for the courts to decide. Regarding the creation of new offences, the Court observed that where by-laws or resolutions are justified, the power to enforce those by-laws is both necessary and lawful. The Court further noted that the present case does not assist the Attorney-General because it recognises only a grant of power to make regulations that are “ancillary to legislation”. In the earlier decision In re The Initiative and Referendum Act, the Court held that the Act of the Legislative Assembly of Manitoba lay outside the scope of section 92 of the British North America Act because it rendered the Lieutenant-Governor powerless to prevent the Act from becoming law even without his consent. The Court quoted that section 92 of the Act of 1867 vests legislative power in a province solely in its legislature. While a provincial legislature may, preserving its own capacity, seek assistance from subordinate agencies as demonstrated in Hodge v The Queen, it cannot create and endow a new legislative power that does not arise from the Act that confers its existence. The Court then referred to In re George Edwin Gray, which considered the delegated powers under the War Measures Act, a situation analogous to the Defence of India Act and its rules during World War I, and noted the observations of Sir Charles Fitzpatrick C.J. on that matter.

The Court observed that it is a well-established practice to empower administrative bodies to issue regulations that give effect to the purpose of a statute without the legislation having to specify every detail. The Court said this practice is widely accepted and its legality is not in doubt. The Court then rejected the contention that such delegated authority could not be so broad as to permit the amendment or repeal of the explicit provisions of a statute, noting that under the Canadian Constitution the power to make laws resides solely with Parliament. However, the Court explained that Parliament cannot surrender its essential legislative function, but it may, within reasonable limits, delegate portions of its authority to the executive branch. Any delegated powers, the Court added, remain subject to Parliamentary control and may be revised by Parliament at any time. Referring to the constitutional text, the Court remarked, “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 the concern that such wide discretion should not be left to the executive, the Court noted that the objection should have been raised when the regulations were presented to Parliament for approval, or more appropriately when the War Measures Act was under discussion. The Court emphasized that Parliament itself was the delegating authority and that it alone could impose any limitations on the powers conferred upon the executive, citing the authorities (1) 9 App. Cas. 117 and (2) 57 S.C.R. Canada 150. The Court further observed, “Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country was the supreme law against which no other law can prevail. It is clearly our duty to give effect to their patriotic intentions.”

In the Chemical Reference case, Chief Justice Duff explained the effect of the earlier decision in the War Measures Act. The Court held that the Privy Council’s judgment in the Fort Frances case had settled the validity of the War Measures Act, leaving no further question on that point. Chief Justice Duff stated, “In In re Gray was involved the principle, which must be taken in this Court to be settled, that an Order-in-Council in conformity with the conditions prescribed by, and the provisions of, the War Measures Act may have the effect of an Act of Parliament.” The Court considered that the regulations drafted by the Governor-General in Council to protect the supreme interests of the State were issued by a body “who was conferred subordinate legislative authority.” The Court then quoted the Privy Council’s judgment in the Fort Frances case, observing, “The judgment of the Privy Council in the Fort Frances case, laid down the principle that in an emergency, such as war, the authority of the Dominion in respect of legislation relating to the peace, order and good government of Canada may, in view of the necessities arising from the emergency, disable or over-bear the authority of the Provinces in relation to a vast field in which the Provinces would otherwise have exclusive jurisdiction. It must not however be taken for granted that every matter within the jurisdiction of” the Provinces is thereby excluded.

In this case the Court observed that even during ordinary periods the Parliament of Canada could lawfully delegate to the executive the authority to enact legislation when an emergency required such action. Unlike the Constitution of India, the British North America Act did not contain a provision allowing either the suspension of the Constitution or an expansion of legislative powers specifically for emergencies such as war. Consequently the Canadian Courts interpreted the language of the relevant sections broadly so as to address the exigencies of the emergency, as reflected in the authorities cited at (1) [1943] S.C.R. Canada 1, (3) [1918] 57 S.C.R. Canada 150 and (2) [1923] A.C. 695. The Courts emphasized, however, that the same expansive approach could not be applied during normal times. The War Measures Acts therefore received a distinct treatment by the Supreme Court of Canada. The central issue concerned the competence of the legislature, but given the extraordinary circumstances and pressing needs, the wording of the legislation was deemed to provide an adequate statement of legislative policy. The Court noted that the test applied to legislation enacted in ordinary circumstances could not be extended to a permanent statute that was not limited in duration. The Court further referred to the discussion in Benaori Lal Sarma’s case (1) before the Privy Council, observing that the legislation in that case, also a war measure, had been upheld as conditional legislation. While some observations in the Canadian decisions appeared to go beyond the holdings of the Privy Council, the Court expressed disagreement with that expansion. It was observed that Canadian courts sometimes gave the term “delegation” a broader meaning than that found in Privy Council decisions. Importantly, the Privy Council judgments never used the word “delegation” to denote a strict conferment of legislative functions with respect to the impugned legislation; instead they deliberately avoided the term. The validity of the Canadian measures was sustained on the basis that they were either conditional, subsidiary or ancillary legislation. The Court also referred to a significant Australian decision, Victorian Stevedoring and General Contracting Company Proprietary Ltd. v. Dignan (2), in which the High Court of Australia examined whether a statutory delegation of legislative power complied with the Constitution. The argument before the Australian Court contended that section 3 of the challenged Act was ultra vires because it purported to empower the Governor-General to make regulations that, notwithstanding any other Act, would possess the force of law. In the judgment delivered by Chief Justice Gavan Duffy and Justice Starke, it was stated that the challenge to the Act rested on an American constitutional principle that a legislative body may not delegate to another department of government or any other authority the power, either generally or specifically, to enact laws, a high-order prerogative that had been entrusted solely to the legislature.

The passage explained that the power to make law must rest on the wisdom, judgment and patriotism of the legislature itself and not be transferred to other persons, because such a transfer would be ultra vires if it attempted to delegate the trust rather than to execute it, as noted in Cooley’s Principles of Constitutional Law, third edition, page 111. The case of Roche v Kronheimer (1) was cited as authority for the proposition that a subordinate law-making authority may be vested in the executive. The writer observed that, irrespective of any arguments for or against that decision, the Court should not now depart from the rule laid down in Roche v Kronheimer. Justice Dixon then considered the argument in detail, stating that the provision under attack was challenged on the ground that it attempted to give the executive a portion of the legislative power that the Constitution vested in Parliament, a move that conflicted with the constitutional distribution of legislative, executive and judicial powers.

Justice Dixon continued that, while a doctrine in the United States prohibits Congress from delegating legislative power to another organ of government, that doctrine has no application to the Australian Constitution. He explained that because governmental powers are derived from the authority of the people of the Union, no agency to whom the people have entrusted power may further delegate its exercise. He cited the well-known maxim “delegata potesta non potest delegare,” which applies to agency law in both general and common-law contexts and has been given broader application in the construction of Australian federal and state constitutions than in private law. He noted that no comparable doctrine existed in British colonial legislation, whether enacted by prerogative or Imperial Statute. Justice Dixon observed that, in America, the intrusion of agency doctrines into constitutional interpretation has not undermined the separation of powers. The Judicial Committee, he quoted, held that a general legislative power belonging to a legislature formed under a rigid constitution does not enable that legislature, by any enactment, to create a new legislative authority that was not expressly created or authorized by its establishing instrument.

Regarding legislation passed during a war emergency, Justice Dixon remarked that the exigencies of defence power are so numerous, great, urgent and inherently the concern of the executive that, by necessary implication, the power appears to authorise a delegation normally forbidden to the legislature. He expressed confidence that such a provision would be supported in America and cited the passage in Burah’s case as indicating that the Judicial Committee denied any actual delegation occurred. He concluded that this does not mean that a law confiding authority to the executive will be

The Court observed that a statute remains valid, regardless of how extensive or vague its subject-matter may be, provided that it does not extend beyond the limits of federal authority. It further noted that the mere distribution of powers among different levels of government does not eliminate all considerations that may influence the statute’s validity. The Court acknowledged that the Constitution, by establishing a separation of powers, logically and theoretically designates Parliament as the executive repository of the Commonwealth’s legislative authority. It explained that Parliament’s power to authorise subordinate legislation derives from a conception of legislative power that relies more on the history and usage of British legislative practice than on strict juristic analysis. Accordingly, such subordinate legislation is kept under Parliament’s control and lacks the independent and unqualified authority that characterises true legislative power. The judge then concluded that the appropriate approach must follow the interpretation set out in Roche v. Kronheimer (1921) 29 Corn. L.R. 329. In explaining this conclusion, the judge indicated that the earlier discussion demonstrated a refutation of the argument that a power conferred would be invalid under the United States Constitution and therefore must also be invalid under the Canadian Constitution. The judge clarified that he was not addressing the specific question before the Court and that he regarded the decision in Roche v. Kronheimer as conclusive. Mr. Justice Evatt, speaking on the doctrine of separation between legislative and executive functions, reminded the Court that the Commonwealth’s governmental framework rests upon the British model, wherein the executive is responsible to Parliament, a feature not present in the United States Constitution. He formulated a broader proposition that every grant by the Commonwealth Parliament of authority to make rules or regulations, irrespective of whether the grantee is the executive or another body, constitutes a grant of legislative power. He further explained that the true nature of the Commonwealth Parliament’s legislative power includes, as part of its content, the ability to confer law-making powers on authorities other than itself. Consequently, the lawful delegation of the power to issue binding commands to the executive or other agencies does not, in itself, invalidate the original grant, although the scope of the delegated power often becomes a material factor in evaluating the validity of the enabling legislation. The paragraph noted that the learned judge appeared to go well beyond prior decisions, observing that any conferment of power—whether through conditional legislation or ancillary legislation—represents a delegation of legislative authority. He ultimately concluded, after this extensive analysis, that the Parliament of the Commonwealth is not competent to abdicate its legislative powers of…

The Court observed that Parliament is not required to exercise every one of its legislative powers or functions; it may choose not to act, and the doctrine of separation of powers does not bar Parliament from granting other bodies authority to make laws or by-laws. The point, however, is that each law enacted by Parliament must fall within the description of law for one or more subject-matters enumerated in the Constitution. Consequently, a statute that transfers all of Parliament’s law-making authority to another body would be invalid because it would fail to satisfy that constitutional test.

Reading the judgments in this light, the Court concluded that they do not support the argument advanced by the Attorney General. The Privy Council decisions arising from appeals in Canada do not advance the issue further. While the Supreme Court of Canada and the Supreme Court of Australia have issued observations that might appear to extend beyond the limit just described, those observations must be understood in the context of the specific facts, regulations, or enactments before each court. Those decisions uniformly reiterate that a legislature must discharge its own functions and cannot delegate them entirely to another authority.

The Court noted that the term “delegation,” as used by Justice Evatt, has been interpreted by some judges to include what is described as subsidiary or conditional legislation. Therefore, when the word “delegation” appears in those judgments, it should not automatically be taken to mean a strict delegation of legislative functions. In fact, the decisions were based on the premise that the statutes involved were subordinate or conditional legislation.

Regarding the constitutions of the Dominions of Canada and Australia, the Court observed that their legislatures were not “packed” in the manner of India’s, and their constitutions were fashioned on democratic principles. A fusion of legislative and executive powers operates in those Dominions, whereas, as the Court pointed out, no such fusion existed in the Indian Constitution as it stood before 1935. Accordingly, conclusions drawn from the fusion of powers in Canada and Australia are not properly applicable to the Indian Constitution.

In the Court’s opinion, to the extent that the Canadian and Australian decisions go beyond what the Privy Council has clearly decided concerning the Indian legislature, they do not provide a useful guide for determining the powers of the Indian legislature to delegate legislative functions to administrative or executive bodies. Both the Canadian and Australian constitutions derive from Acts of the British Parliament and are therefore written, rigid instruments, a characteristic that further limits their relevance to the Indian constitutional framework.

In discussing the Australian Constitution, the Court observed that the document employed the term “vest” when allocating authority between the legislative and executive branches, a usage that mirrored that of the Constitution of the United States of America; consequently the two constitutions shared certain common characteristics. Nevertheless, the Court noted that the Australian framework did not establish a clear, mutually exclusive separation of powers, and instead displayed a fusion of authority such that ministers were simultaneously members of the legislature. The Court’s attention was drawn to a number of decisions of the Supreme Court of the United States, principally to highlight the distinction between the legislative powers exercised by the United States Congress and those exercised by legislatures created under the British-parliamentary pattern. It was accepted that, because the United States Constitution expressly provided that legislative and executive powers were to be vested exclusively in the bodies designated as the legislature and the executive, one body could not lawfully delegate its constitutional authority and functions to another body. The Court further observed that several United States Supreme Court rulings had been predicated on the principle that a delegate was incompetent to receive a power that the Constitution had not assigned to it; the competence of the executive branch was expressly set out in the constitutional text, and the implication was that the Constitution therefore barred the executive from receiving additional powers from the legislative branch.

Having reached its ultimate conclusion, the Court briefly outlined the position under the United States Constitution. Referring to the treatise Crawford on Statutory Construction, the Court quoted that “so far however as the delegation of any power to an executive official or Administrative Board is concerned, the legislature must declare the policy of the law and fix the legal principles which are to control in given cases and must provide a standard to guide the official or the Board empowered to execute the law. This standard must not be too indefinite or general. It may be laid down in broad general terms. It is sufficient if the legislature will lay down an intelligible principle to guide the executive or administrative official ….” The Court explained that from these stringent criteria it was evident that Congress exercised considerable latitude in upholding legislative delegations provided that an intelligible standard was established. Such delegations were not susceptible to the objection that legislative power had been unlawfully transferred. The Court further clarified that filling in mere details within the policy framework and according to the legal principles and standards set by the legislature was essentially ministerial rather than legislative in nature, even when the delegated authority was granted a wide scope of discretion. In the case of Hampton & Co. v. United States, Chief Justice Taft was cited as having observed that “it is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President or to the judicial branch or if by law it attempts to invest itself or its members with either executive…” This passage underscored the Court’s view that the Constitution prohibited the transfer of legislative authority to other branches and emphasized the importance of maintaining the distinct constitutional allocation of powers.

The Court observed that the statement does not imply that the three branches of Government are not coordinated parts of a single system, nor does it mean that each branch may not invoke the action of the other two, provided that such invocation does not amount to an assumption of the constitutional field of action belonging to another branch. The Court cited the decision in 1 (1928) 276 U.S. 394, 406 & 407, to illustrate this principle.

The field of Congress embraces a wide variety of legislative activities, and Congress has frequently found it necessary to employ officers of the executive branch, within defined limits, to achieve the precise effect intended by its legislation. To that end, Congress may vest discretion in such officers to issue public regulations, to interpret statutes, and to direct the details of execution, even to the extent of providing for penalties for violations of those regulations. The Court noted that Congress may sometimes be unable to determine conveniently the exact moment when its exercise of legislative power should become effective, because that determination depends on future conditions; consequently, Congress may leave the timing of such effectiveness to the decision of the executive.

The Court agreed with the often-cited passage from the judgment of Justice Ranny of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. v. Clinton County Commissioners, namely: “The true distinction therefore is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”

In Locke’s Appeal (2), the Court reiterated that “The proper distinction is this. The legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which useful legislation must depend, which cannot be known to the law-making power, and must therefore be a subject of enquiry and determination outside the halls of legislature.”

Finally, the Court referred to the observation of Chief Justice Hughes in Panama Refining Co. v. Ryan (s), stating: “The Congress is not permitted to abdicate or 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 instrumentities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is ….”

In this passage, the Court observed that without the ability to grant certain authorisations, the legislature would be rendered ineffective in many situations where its power would otherwise be futile. The Court emphasized that while it is constantly recognised that many provisions are necessary and that a wide range of administrative authority is created by them, such recognition must not obscure the constitutional limits on the power to delegate. The Court then cited the decision in Schechter v. United States (1), noting the statement that, “So long as the policy is laid down and standard established by a statute no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.” The Court described the question of delegation of power as complex, pointing out that various decisions have either upheld or struck down statutes based on how delegation was applied. The Court referred to Schwartz’s commentary in American Administrative Law, which summarises this complexity. After quoting Wayman v. Southend (2), the Court recalled Marshall C.J.’s observation that the line separating matters that must be wholly regulated by the legislature from those that may be addressed by a general provision and delegated authority has never been precisely drawn. The Court noted the accompanying citations (1) 295 U.S. 459. (2) 10 Wheat 1 U.S. 1825. When American courts finally confronted delegation cases, they resolved the resulting dilemma by carefully choosing language to describe “delegated power.” Justice Holmes’s phrase that the transferred authority was “softened by a quasi” allowed courts to acknowledge the existence of delegated legislation while refusing to label it legislative. The Court also reproduced Professor Cushman’s syllogism, which states: “Major premise: Legislative power cannot be constitutionally delegated by Congress. Minor premise: It is essential that certain powers be delegated to administrative officers and regulatory commissions. Conclusions: Therefore the powers thus delegated are not legislative powers. They are instead administrative or quasi-legislative powers.”

Later, counsel appearing for the President argued that Indian legislative practice for more than eighty years had accepted this type of delegation, and that the Court should give effect to that long-standing practice when assessing the validity of statutes. To support the contention, a schedule annexed to the petition was relied upon, which listed a number of Acts that were claimed to illustrate the alleged practice of delegation. The Court examined the schedule and expressed the view that, on close scrutiny, only a very small number of the cited statutes could possibly be described as examples of delegated legislation, and even those few did not convincingly establish a consistent practice. Accordingly, the Court concluded that the submission that a widespread, established custom of delegation existed in Indian law was unsupported by the authorities presented. The Court therefore declined to base its judgment on an assumed historical tolerance of delegation and indicated that the limited instances identified could be characterised, if at all, as conditional or subsidiary legislation, rather than as evidence of a general principle permitting extensive legislative delegation.

The Court observed that the provisions in question could be characterised as conditional legislation or subsidiary legislation, and therefore it did not explore that issue in greater detail. It explained that unless the legislative practice was overwhelmingly clear, mere tolerance or acquiescence to an Act that had existed for several years without any dispute about its validity could not be regarded as binding when the validity of that practice was later challenged before the Court. In the Court’s view, the broad submission of the Attorney-General—that the Indian Legislature before 1935 possessed the power to delegate legislative functions in the manner asserted—lacked support from either judicial decisions or established legislative practice. A careful and comprehensive reading of the relevant decisions of the Privy Council, together with judgments of the Supreme Courts of Canada and Australia, led the Court to conclude that, while a legislature may, as part of its legislative functions, confer authority to make rules and regulations for the implementation of an enactment, may prescribe the policy and principles governing conduct, and may provide that, upon the finding of certain facts by an executive authority, the operation of an Act could be extended to specified areas or be brought into force in a manner described as conditional legislation, it does not possess a general power to delegate legislative functions under the Constitution of India at any stage. The Court further noted that even in emergencies such as war, where the executive must be given considerable latitude to enforce regulations, the power to make regulations is wide, but the suggestion that this amounts to a delegation of “legislative functions” has been rejected. Likewise, the doctrine of conditional, subsidiary or ancillary legislation is recognised under all constitutional systems, varying according to the necessities of the case and the nature of the legislation. Consequently, the Court held that the Attorney-General’s contention that legislative power includes an overarching authority to delegate legislative functions—so that the legislature might forgo defining its policy or laying down any rule of conduct and leave the entire matter to an executive, administrative, or other body—was unsound and lacked support from the authorities relied upon. The Court added that, apart from the sovereign character of the British Parliament, which is a matter of convention and whose powers are absolute and unlimited, no other legislature has recognised or permitted such a general power of delegation as claimed by the Attorney-General. The Attorney-General had, however, contended that under the power of delegation

The Court stated that a legislative body could not abdicate or efface itself, and that this principle set the outer limit of legislative power. It noted that an argument had been advanced that, provided the legislature retained the power to control the actions of the body to which it had delegated authority, and that the actions of that body could be revoked, no abdication or effacement would occur. The argument relied in part on certain observations taken from Privy Council judgments cited earlier in the discussion. The Court observed that the Board had expressed its views to support the conclusion that the statute in question was either conditional legislation or that the statute derived its force and sanction from the legislature’s act rather than from any act of the delegate. The Court did not accept that those observations established a general permission for legislative delegation up to that limit.

The Court explained that the proper test for “abdication” or “effacement” was whether, when conferring power on a delegate, the legislature, in the wording of the instrument, retained its own control. It asked whether the delegate’s decision derived its sanction from the delegate’s own act or from what the legislature had enacted and decided. The Court emphasized that every power given to a delegate could normally be recalled, and that it was hard to imagine a situation in which the legislating body could not revoke the authority it had conferred. The Court noted that a legislative body created by an Act of the British Parliament, by its very nature, did not have the right to create another legislative body possessing the same jurisdiction and powers; such power rested only with the British Parliament itself and not with a legislature established under its Act. Consequently, the proposition that the true test of effacement was that the authority conferring power on the subordinate body could not withdraw that power was deemed meaningless.

In the Court’s view, the question of whether “abdication” or “effacement” had occurred had to be decided by examining the language used in the instrument that conferred the power. The Court cited the Oxford Dictionary definition of abdication as the abandonment, either formal or virtual, of sovereignty. It observed that abdication by a legislature did not necessarily mean a complete effacement; abdication could be partial or complete. When the legislature, concerning a subject in the Legislative List, declared that it would not legislate on that subject but would leave it to another authority, the Court questioned why that should not be considered abdication or effacement. Finally, the Court noted that if the legislature conferred upon the subordinate authority full powers to do anything and everything that the legislature itself could do, the analysis of abdication and effacement would become essential.

The Court observed that although the legislature retained the ability to control the actions of a subordinate authority by recalling the delegated power or by repealing any statutes that the subordinate authority enacted, the very fact of conferring such power through the instrument effectively amounted to an abdication or effacement of the legislature’s own legislative authority. The Court then turned to the question of the power to modify an Act in its scope when exercised by the subordinate authority. It noted that, at the outset, when the legislature granted the subordinate authority the power to apply existing legislation to particular territories, that grant was limited strictly to the application of the whole Act or of a specific portion thereof. Subsequently, the legislature expanded the grant by authorising the subordinate authority not only to apply the legislation but also to restrict its application where it deemed appropriate. In a further stage, the legislature added a power to “modify so as to adapt the same” to local conditions. The Court stressed that, up to this point, the clear intention of the legislature was to leave the delegate with only the discretion to apply what it considered suitable—either in whole or in part—and to make necessary adaptations dictated by local circumstances, and nothing beyond that limited discretion. The Court then identified a recent trend in some statutes where the power of modification was conferred without any qualifying words that would limit the scope of that power. The Attorney-General submitted that, according to the Oxford Dictionary, the word “modify” signified to limit, restrain, soften, or make less severe, and also to make partial changes without a radical transformation. He argued that any exercise of the power that went beyond this limited meaning would exceed the authority granted and therefore could be declared invalid, insisting that no broader power was intended under the term “modification.” By contrast, the Court cited Rowland Burrows’ “Words and Phrases,” which defined “modify” as to vary, extend, enlarge, limit or restrict, and held that modification necessarily implied an alteration that could either narrow or broaden the provisions of the original Act. To illustrate the practical effect of this broader interpretation, the Court referred to the Delhi Laws Act, under which the Central Government extended the Bombay Debtors’ Relief Act to Delhi. The Bombay Act originally limited relief to poor agriculturists whose agricultural income was less than Rs 500. By invoking the power of modification granted by the Delhi Laws Act, the Central Government removed that income ceiling, thereby making the relief scheme applicable in Delhi to large landowners earning as much as Rs 20 lakhs. The Court concluded that this example demonstrated how the Central Government and the Indian Legislature understood and applied the word “modification,” and it expressed the view that such an extensive exercise of the power of modification, as actually carried out by the Central Government, was not permissible under law.

In that discussion, the Court explained that if the power of modification were understood to allow the Central Legislature to alter the entire foundation and purpose of a law, the legislature could effectively rewrite the legislation whenever it chose. The Court held that such an approach would amount to a complete delegation of legislative authority, because the legislature would no longer be required to consider the policy objectives behind the relief, the particular class of persons to be helped, the circumstances in which relief should be granted, or the administrative machinery needed to deliver that relief. The Court cited the various provisions of the Rent Restriction Acts enacted in different provinces as a further illustration of how dangerous it would be to give the executive the power to modify legislation. After reviewing all the decisions that had been cited before it and after giving careful attention to the detailed arguments presented by the Attorney-General, the Court reiterated the position expressed in Jatindra Nath Gupta’s case (1). It stated that the legislature could not delegate the power to “lay down the policy underlying a rule of conduct” to the executive or to any other authority. The Court noted that the term “delegation” had been used loosely by some judges and commentators, but emphasized that, as established in the Privy Council decisions, the word did not include what is known as conditional, subsidiary, or ancillary legislation—that is, the authority to make rules and regulations necessary for implementing an enactment. By giving “delegation” its traditional meaning, the Court affirmed the view expressed in Jatindra Nath Gupta’s case that the legislature does not possess a power of delegation. The Court then observed that under the Constitution that came into force in 1950, the British Parliament no longer exercised any control over the Indian legislature. The powers of the Indian legislature were now defined, limited, and regulated solely by the Constitution of India. Nonetheless, the Court stressed that the Constitution had not expanded the scope of legislative power beyond what was indicated in the earlier case citation (1) [1949] F.C.R. 595. While the Constitution created the Parliament and did not expressly reserve all legislative powers exclusively to it, the overall scheme of the Constitution was predicated on the principle that the Union’s legislative functions would be performed by Parliament and by no other body. Accordingly, the essential legislative functions—determining legislative policy and formulating it as a rule of conduct—remained vested in Parliament or, as appropriate, in the State Legislatures, and could not be transferred to any other authority. The Court’s reasoning drew upon the provisions of Articles 357 and 22(4) of the Constitution of India, and it also referenced Article 356 in support of its conclusions.

Article 357 of the Constitution was enacted to protect against a situation in which the constitutional machinery in a State fails. The provision states that when a proclamation declaring such a failure is issued, subsection (1)(a) of article 357 provides that the legislative authority of the State may be exercised by, or under the authority of, Parliament. The same subsection further authorises Parliament to confer upon the President the power of the State legislature to make laws and to authorise the President “to delegate, subject to such conditions as he may think fit to impose, the powers so conferred to any other authority to be specified by him in that behalf.” Sub-clause (b) adds that Parliament, the President or any other authority to whom the power to make laws is vested under sub-clause (a) may make laws that confer powers and impose duties, or that authorise the conferment of powers and the imposition of duties, on the Union or on its officers and authorities.

The parties contended that, in the event of a breakdown of the constitutional machinery, authority must first be given to Parliament or to the President to enact laws on subjects that would otherwise be within the exclusive competence of the State legislature. They further argued that the same authority should enable Parliament or the President to direct the executive officers of the State government to act in accordance with any emergency legislation passed by them. The argument relied heavily on the use of the word “delegate” in the constitutional text. The Court, however, found this line of reasoning unconvincing. Sub-clause (2) of article 357 deals with the President’s power to employ the State’s executive officers, but clause (a) already grants Parliament the power to confer upon the President the legislative functions of the State. Consequently, article 357(1)(a) expressly empowers Parliament to authorise the President to delegate legislative powers. If the power to legislate inherently included the power to delegate, the additional specification in the article would have been unnecessary. The wording therefore supports the view that, ordinarily, legislative power does not comprise a delegated authority.

Article 22(4) of the Constitution also bears on this discussion. That article addresses preventive detention and provides that no law may lawfully permit the preventive detention of a person for a period exceeding three months unless the conditions in article 22(4)(a) are satisfied. An exception to this rule exists for an Act of Parliament enacted under the conditions set out in article 22(4)(b). Under that exception, Parliament must pass any such Act in conformity with the provisions of article 22(7). The crucial observation is that, with respect to the fundamental right limiting a person’s detention to three months, a specific exception is made in favour of Parliament, illustrating the careful delineation of legislative and executive powers in the Constitution.

In this matter, the Court observed that it would be contrary to the fundamental-rights provisions of the Constitution to contend that Parliament, while exercising the power to legislate under article 22(7), may also lawfully delegate that legislative authority to the executive branch. The Court therefore rejected the submission, advanced by the Attorney-General, that the Constitution of 1950 implicitly incorporates a general power of delegation within the legislative power. Referring to the historical position of the British Parliament, the Court noted that the courts of law are not permitted to question whether that Parliament could validly delegate its own legislative functions; consequently, the mere fact that the British Parliament has at times delegated legislative powers does not establish that such delegation is automatically recognized as an inherent component of legislative power under Indian law. Although the Indian Constitution does not contain an explicit separation of powers, the Court affirmed that the Constitution creates a legislature and provides detailed mechanisms for that body to enact statutes. The Court further explained that it is reasonable to assert that, under the Constitution, the primary responsibility for making laws, exercising wisdom, judgment, and patriotic duty in law-making, rests with the legislature itself. This implication, the Court said, means that unless another constitutional provision expressly authorizes it, neither the executive nor the judiciary is intended to perform legislative functions. The Court expressed that it could not discern from the cited authorities any proposition that once a legislature follows the prescribed procedure for passing a bill, the resulting act automatically becomes a valid law unless it falls outside the subjects enumerated in the Seventh Schedule’s Legislative Lists. Accordingly, the Court did not interpret articles 245 and 246 as encompassing a general power to delegate legislative authority. On a proper construction of articles 245 and 246 together with the Seventh Schedule, read in light of the judicial decisions previously mentioned, the Court held that legislation which delegates legislative powers to another body does not create a law on any of the subjects or entries listed in the Legislative Lists. Rather, such a statute merely confers upon the designated body the authority to formulate policy and prescribe conduct that will bind the persons to whom the law applies. After reviewing all the relevant decisions, the Court concluded that legislatures in India, as well as in Canada, Australia and the United States, must perform their core legislative function of laying down rules of conduct. In exercising that function, a legislature may additionally prescribe conditions or state facts whose satisfaction, as determined by another authority or the executive, will cause the legislation to become applicable to a specific area or circumstance.

The Court explained that legislation which imposed conditions on its operation was termed conditional legislation. It observed that when the legislature framed a rule of conduct, it could choose to articulate the rule in broad terms if the prevailing conditions and circumstances required such generality. The Court further noted that the degree of specificity and detail in the rule of conduct could differ from case to case, depending upon the particular circumstances or exigencies involved. Consequently, the Court held that in situations where unusual circumstances or pressing exigencies led the legislature to refrain from prescribing detailed rules or regulations, the responsibility for drafting those detailed provisions could be assigned to another entity, which would then be regarded as possessing subordinate legislative powers. Having taken into account the earlier distinction between the power to delegate legislative functions and the authority to confer powers that permitted the recipient of the power to make regulations or rules to give effect to the law, alongside the legislature’s own power to enact conditional legislation, the Court proceeded to examine the three specific questions presented in the Reference.

The Court observed that the need to enact legislation of the type covered by the three sections referred to in those questions arose early in the British occupation of India, when the Crown acquired small fragments of territory for which no regular legislative body existed. In those early instances, it was deemed convenient to apply to the newly acquired areas the statutes that had been enacted by a competent legislature in the adjoining regions. This approach avoided the necessity of establishing a separate legislative mechanism for each small area, a process that could prove inconvenient and costly. Moreover, the Court noted that it was unlikely that the Governor-General in Council could, on a day-to-day basis, pass laws tailored to the varied local conditions of each tiny territory. Because local conditions could differ to some extent, the colonial administration found it practical to empower the administrator to apply an existing law either in full, in part, or with limited operation within the newly acquired territory. The Court cited the prominent example of this legislative practice found in Act XXII of 1869, as discussed in The Queen v. Burah (5 I.A. 178). Under section 22 of the Indian Councils Act of 1861, the Governor-General in Council possessed the authority to make laws for all persons, places and things within British India. The Court further explained that when the Province of Delhi was carved out of the Province of Punjab, it was placed under a Chief Commissioner, and by section 2 of the Delhi Laws Act the statutes then in force in Punjab continued to apply in the newly created Province of Delhi. Because Delhi did not have its own legislative body, the Court held that, with respect to this Chief Commissioner’s Province, the legislative power remained vested in the Governor-General in Council acting in his legislative capacity. The Court concluded that the first question, as framed, had to be answered by reference to the powers and status of the legislature as they existed in the year 1912.

Section 7 of the Delhi Laws Act authorised the executive Government to extend, by means of a notification, any enactment that was in force anywhere in British India on the date of that notification to the Province of Delhi or to any part of it. The provision permitted the Government to impose any restrictions or modifications that it considered appropriate when extending such a law. Consequently, the law that could be extended was not limited to legislation that previously applied only to the Province of Punjab, from which Delhi had been carved out; rather, the provision encompassed any Central or provincial law that was then operative in any Province of British India. The same section also allowed the Government to extend any such law with restrictions or modifications of its own choosing. In addition, the text of Section 7 empowered the Provincial Government to extend an Act that was in force “at the date of such notification.” The wording of the statute therefore authorised the extension of future statutes that might be enacted by either the Central Legislature or any Provincial legislature, again subject to any restrictions or modifications deemed fit by the Provincial Government.

At this point the Court compared Section 7 with Sections 8 and 9 of Act XXII of 1869, the powers set out in those sections having been examined in the case of The Queen v. Burah(1). Sections 8 and 9 of the 1869 Act authorised the Lieutenant-Governor to extend Acts that either had been or might be made by the Governor-General in Council or by the Lieutenant-Governor himself, both of whom possessed the legislative competence for the entire area under the Lieutenant-Governor’s administrative jurisdiction. That authority was confined to extending only those Acts to the territory described in Act XXII of 1869, a territory that the same Act characterised as not subject to the laws of the Province unless a particular Act expressly mentioned the area. Accordingly, the decision in The Queen v. Burah, reported at (1) 5 I.A. 178, supported the view that, insofar as Section 7 gave the executive (Central) Government the power to extend Acts passed by the Central Legislature to the Province of Delhi, that power could be sustained.

The remaining issue concerned the extent of the executive Government’s authority to extend Acts of other Provincial legislatures—whether with or without restrictions or modifications—to the Chief Commissioner’s Province. It was clear that, regarding those Provincial Acts, the Central Legislature had not exercised any deliberation. The Central Legislature had not examined whether the people of the Province of Delhi required the rules laid down in those Acts, nor had it considered whether such laws would be beneficial or necessary for the welfare of the Province or its administration. Those Acts had been enacted by other Provincial legislatures to address their own particular needs and circumstances. By permitting the Central Government to apply such Provincial Acts to the Province of Delhi, Section 7 effectively transferred to the executive the responsibility and discretion that would otherwise have rested with the Central Legislature to decide the desirability or necessity of legislating on specific subjects for Delhi. Thus, the decision as to whether, for example, a rent Act, an excise Act, a prohibition Act, or a debt-relief Act should be applied to Delhi was no longer a matter for legislative debate but became a matter for executive determination.

In the judgment the Court observed that matters such as whether a rent act, an excise act, a prohibition act, or a debt-relief act were desirable or necessary for the Province of Delhi were not examined or decided by the Central Legislature. The Court held that the responsibility to make such policy determinations, which ordinarily belonged to the Central Legislature, had been transferred without reservation to the executive government under section 7 of the Delhi Laws Act. Accordingly, the Court described section 7 as containing a quality of power that differed entirely from the power conferred by sections 8 and 9 of Act XXII of 1869. The Court then referred to a series of decisions of the Privy Council, which unequivocally affirmed that the Indian Legislature could not create a body possessing the same powers as the Central Legislature itself, because a legislature could not efface its own authority. From those authorities the Court extracted two questions for consideration. The first question concerned whether the newly created body was empowered to make laws. The second question concerned the source of the legal sanction – whether it arose from legislation enacted by the legislature or from the decision of the newly created body. Regarding the first question, the Court noted that, in principle, there was no material difference if the new body itself drafted the various sections of an act or simply declared that the law would be whatever was written or printed on an identifiable document. Thus, if the new body declared that the law applicable in Delhi would be the same as a particular Bombay or Madras act of a specified year, that declaration itself constituted the law for Delhi, and the new body could also restrict or modify the provisions of that act. Concerning the second question, the Court explained that the sanction for the law clearly flowed from the notification issued by the newly created body stating that the Bombay or Madras act, with any mentioned modifications, would be the law in Delhi. That sanction did not derive from any express decision of the legislature, because the legislature had not applied its mind and said, “Bombay Act ______ is the law of this Province.” The Court considered it futile to argue that the sanction originated from a legislative statement that the law would be whatever the new body decided, since such a statement merely authorised the new body to select a law of another province. The Court then turned to the illustrations of the extension of the Civil and Criminal Procedure Codes mentioned in the judgment of The Queen v Burah. It observed that, at that time, the Governor-General in Council, exercising its legislative capacity, possessed authority over the whole of India on all subjects. The Civil and Criminal Procedure Codes had been enacted by the Central Legislature, which could have made them applicable uniformly throughout India. However, the enactments contained a condition that their application could be referred to particular areas until the respective Provincial Government (executive) considered it convenient for those codes to be made applicable to its own region. The Court stressed that a Provincial Government, such as that of Bombay, was not empowered to formulate any policy concerning 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 Bombay. If a Provincial Government wished to adopt such a law, the Legislature of the Province had to exercise its own judgment and pass a law that would be enforceable within the province. Finally, the Court noted that the power to extend, mutatis mutandis, the laws under sections 8 and 9 of Act XXII of 1869 introduced the idea of adaptation by modification, but only to the extent expressly provided for in those provisions.

The Court noted that when the Central Legislature enacted the Civil Procedure Code and the Criminal Procedure Code, it intended those statutes to apply uniformly throughout India, but it also stipulated that their operation could initially be confined to certain areas until the respective provincial executive governments deemed it convenient for the codes to be applied within their jurisdictions. Consequently, a provincial government such as the Government of Bombay did not possess the authority to formulate policy concerning the Civil Procedure Code or the Criminal Procedure Code, nor could it unilaterally adopt a law enacted by the Legislature of Madras for implementation in Bombay. If the Bombay Province wished to adopt such a law, the proper procedure required the Bombay Legislature itself to deliberate, pass, and thereby make the law enforceable within that province. The Court further observed that the power to extend, mutatis mutandis, the statutes provided in sections 8 and 9 of Act XXII of 1869 introduced the concept of adaptation by modification, but only to the extent necessary for the purpose intended. In the Court’s view, therefore, any provision in section 7 of the Delhi Laws Act that allowed the Central executive government to apply a law passed by a provincial legislature to the Province of Delhi exceeded the constitutional competence of the Central Legislature and was ultra vires. By exercising such a power, the Central Legislature had effectively abdicated its own legislative function, rendering the act void to that extent. The Court then turned to the second question concerning the Ajmer-Merwara (Extension of Laws) Act. It recalled that until the Government of India Act 1915, India operated under a unitary system of government. The 1915 Act granted provincial legislatures the authority to legislate, yet it did not allocate legislative powers between the Centre and the provinces; such a distribution was only introduced by the Government of India Act 1935. Section 94 of that Act listed the Chief Commissioner’s provinces, which included Delhi and Ajmer-Merwara. Under sections 99 and 100, legislative powers were divided between the provinces and the Centre, but the term “province” did not encompass Chief Commissioner’s provinces, leaving the Central Legislature as the sole law-making body for those territories. The Ajmer-Merwara Act was enacted under the Government of India Act as 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, it left the Central Legislature’s powers unchanged from those set out in the 1935 Act. Accordingly, the Independence Act did not alter the question of whether the power of delegation was contained within the legislative power. The Court concluded that if section 7 of the Delhi Laws Act is held ultra vires, then section 2 of the Ajmer-Merwara Act 1947 must likewise be regarded as ultra vires. This analysis led the Court to the third question, concerning section 2 of the Part C States (Laws) Act, 1950, which had been passed by the Indian Parliament.

The Act was passed by the Indian Parliament. Article 239 of the Constitution of India vests the entire power for administering Part C States in the President. Article 240 then authorises Parliament to create, or to continue, for any State that is classified as Part C and administered through a Chief Commissioner or Lieutenant Governor, either (a) a body—whether wholly nominated, wholly elected, or partly nominated and partly elected—to function as a legislature for that State, or (b) a Council of Advisers or Ministers. It is a matter of common knowledge that, to date, Parliament has not enacted any law establishing such bodies. Article 246 governs the division of legislative powers between the Centre and the States, but Part C States lie outside its ambit. Consequently, on any matter touching a Part C State, Parliament remains the sole and exclusive legislature until it enacts a law that creates a legislature or a Council pursuant to article 240. Assuming, as the Attorney-General contended, that a legislative power does not automatically include a power of delegation, the Court was required to decide whether section 2 of the Part C States (Laws) Act was constitutionally valid. Section 2 authorises the Central Government, by way of a notification, to extend to any part of a Part C State, with such restrictions and modifications as it deems appropriate, any enactment that was in force in a Part A State on the date of the notification. Although this provision is fashioned on the model of the Delhi Laws Act and the Ajmer-Merwara Act, its scope is limited because the executive may extend only an Act that is already in force in a Part A State. For the reasons already explained in the consideration of Questions 1 and 2, the portion of section 2 that empowers the Central Government to extend laws passed by any legislature of a Part A State is ultra vires. In contrast, where Parliament itself has passed Acts applicable to Part A States, there is no objection to the Central Government, if necessary, extending the operation of those Acts to the Province of Delhi, since Parliament is the competent legislature for that Province. However, to the extent that the same section permits the Central Government to extend laws made by any legislature of a Part A State to the Province of Delhi, that extension is ultra vires. In light of the conclusion reached regarding the first portion of section 2, the Court saw no need to address separately the other portion of the section that deals with the power to repeal or amend a corresponding law presently applicable to the Part C State. Before closing, the Court recorded its appreciation for the assistance rendered by the learned Attorney-General and the counsel appearing in the Reference in collecting all relevant material and presenting it in an extremely fair manner.

The counsel who appeared in the Reference were praised for their diligent effort in gathering all the relevant material and presenting it before the Court in a manner that was exceptionally fair. In response to the three questions posed, the Court held that each of the three statutory sections identified in those questions was beyond the constitutional authority of the legislatures that were in operation at the relevant dates. The ultra vires character of those sections arises to the extent that the executive government was given power to extend statutes other than those enacted by the Central Legislature, as was explained in the earlier part of the judgment. The judgment then proceeded, under the signature of Justice Fazl Ali, to explain that the answers to the three questions referred by the President under article 143 of the Constitution of India depended on a more fundamental question that had been the subject of extensive argument before the Court. That fundamental issue was stated as follows: whether a legislature that is sovereign or that possesses plenary powers within its assigned field may delegate its legislative functions to an executive authority or to another agency, and if such delegation is permissible, to what extent it may be carried out.

In addressing this issue, the Court outlined three conceivable answers. The first proposition was that a sovereign legislature in a particular field enjoys unlimited power to delegate, and that the very content of its sovereign power must necessarily include the authority to delegate legislative functions. The second proposition was that delegated legislation is permissible only within certain definite limits. The third proposition was that delegated legislation is altogether impermissible, based on well-known and well-recognised legal principles. The Court elected to examine the third alternative first, while clarifying that the terms “delegated legislation” and “delegation of legislative authority” would be used in a loose, popular sense rather than in a strict technical sense that would be defined later.

One of the principles invoked to argue that legislative power cannot be delegated is expressed in the maxim “delegatus non potest delegare,” which in plain language means that a delegated authority cannot further delegate its powers; in other words, an agent cannot lawfully appoint another agent to perform the duties of the first. The Court noted, however, that this maxim has only a limited application even in the law of contract or agency, where it is commonly invoked in situations involving a confidential agency contract or where the authority is coupled with discretion or confidence. Examples of persons who ordinarily lack an implied power to employ deputies or sub-agents include auctioneers, brokers, directors, factors, liquidators and other fiduciaries. The rule is recorded in Broom’s Legal Maxims and other treatises, although some authorities do recognise an implied power to employ agents in certain cases.

When the maxim is applied to the actions of a legislative body, the Court observed that it becomes necessary to identify who is the principal and who is the delegator. The Court further referred to earlier cases in which the question of the power of the Indian or a colonial legislature had been examined, noting that at times it had been suggested that such legislatures were merely delegates of the British Parliament. The Court indicated that this view had been rejected by the Privy Council in several leading decisions, setting the stage for a more detailed analysis of the true character of legislative power.

The Court noted that certain writers had characterised a legislature as a delegate of the British Parliament, contending that the legislature derived its authority to make laws from such delegation. The Court rejected this proposition, pointing out that the Privy Council had repudiated it on several occasions. In support of this rejection, the Court quoted two leading decisions. In Reg. v. Burah, the Privy Council was cited as saying: “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.” (1) Similarly, in Hodge v. The Queen, the judgment observed: “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.” (2) The Court further observed that other commentators had suggested that a legislature acted as a delegate of the people or electors. This view, however, had not been accepted by many constitutional scholars. The Court referenced the writings of Dicey, noting his statement on the powers of the British Parliament in relation to the Septennial Act: “That Act proves to demonstration that in a legal point of view Parliament is neither the agent of the electors nor in any sense a trustee for its constituents. It is legally the sovereign legislative power in the state, and the Septennial Act is at once the result and the standing proof of such Parliamentary sovereignty.” (1) Dicey further explained that judges are unaware of any “will of the people” except insofar as that will is expressed by an Act of Parliament, and that judges would not permit the validity of a statute to be challenged on the ground that it was passed or maintained contrary to the wishes of the electors. (2) The Court concluded that, although members of a legislature represent the majority of their electors, the legislature as an institution does not function as an agency of the entire electorate.

The Court observed that a legislature, considered as a collective body, could not be described as an agency of the entire electorate. While each individual member of the legislature may often represent a particular political party or a specific shade of public opinion, the assembled legislature exercises its law-making function based on authority that it derives independently from the Constitution. Consequently, the actions of the legislature cannot be questioned by the electorate, nor can the electorate withdraw the legislature’s power to enact legislation on any specific matter. As Dicey has pointed out, “the sole legal right of electors under the English Constitution is to elect members of Parliament. Electors have no legal right of initiating, of sanctioning, or of repealing the legislation of Parliament.” (3) The Court therefore concluded that it would not be accurate to describe the legislature as an agent of its constituents, because its powers are subject to the limitations implied by the Latin maxim previously referenced. The Court indicated that this point would be revisited when discussing another principle that bears a resemblance to the principle underlying that maxim. The second principle on which reliance was placed was said to be founded upon the well-known doctrine of “separation of powers.” This doctrine is an ancient concept that is commonly credited to Aristotle, but it received considerable emphasis from Locke and Montesquieu. In Montesquieu’s own words, “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 joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There should be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” (1) The Court noted that this doctrine found many supporters in America and was virtually elevated to a legal principle in that jurisdiction.

The commentary cited from Pritchard (1914 edn, pp. 162-3) explained that, regardless of the form of government, the concentration of all powers in one body would create a genuine despotism. John Adams expressed a similar view, stating that only by balancing each of the three powers against the other two can the natural tendency toward tyranny be restrained and a degree of freedom be preserved. These ideas are reflected in both the state constitutions and the Federal Constitution of the United States. For example, the Constitution of Massachusetts, adopted in 1780, expressly provides that the legislative department shall never exercise executive or judicial powers, that the executive shall never exercise legislative or judicial powers, and that the judicial shall never exercise legislative or executive powers, so that government may be of laws and not of men. The constitutions of the remaining thirty-nine states were drafted on comparable principles. Although the Federal Constitution does not contain an explicit clause on separation of powers, the three articles that assign legislative authority to Congress, judicial authority to the Supreme Court, and executive authority to the President have been interpreted to mean that the powers vested in each branch may not be vested in any other branch, nor may one branch interfere with the powers of another. Justice Sutherland articulated this rule in Springer v. Government of the Philippine Islands, declaring that, as a general principle of the American constitutional system, the legislature cannot exercise executive or judicial power, the executive cannot exercise legislative or judicial power, and the judiciary cannot exercise legislative or executive power. From this principle, courts later derived the doctrine against the delegation of legislative power, a theme emphasized in early American decisions. However, it was soon recognized that an absolute prohibition on delegation could not be maintained in practice. As early as 1825, Chief Justice Marshall acknowledged that the rule was subject to limitations, observing that Congress may legitimately delegate powers it could lawfully exercise itself. Over time, despite the maxim against delegation, the scope of delegated authority expanded dramatically; a 1916 American writer remarked that, because of the growth of the administrative process, the old doctrine prohibiting delegation of legislative power had effectively withdrawn from the field. While this statement may overstate the situation, American judges have remained vigilant in checking any undue or excessive authority delegated to the executive, as reflected in more recent Supreme Court decisions.

The Court observed that the American judiciary has remained vigilant in examining any undue or excessive authority that might be delegated to the executive, as demonstrated by recent Supreme Court decisions such as Panama Refining Co. v. Ryan (3) and Schechter Poultry Corp. v. United States (4). In the Schechter case, the Court held that the National Industrial Recovery Act was invalid to the extent that it attempted to give the President the power to adopt and enforce codes of fair competition for each industry and to impose those codes upon industry members, because such a grant amounted to an unconstitutional delegation of legislative power. In discussing that judgment, Justice Cardozo remarked that the delegated legislative power expressed in the code was not confined within “banks that keep it from overflowing.” He described the power as unconfined and vagrant, noting that the delegation at issue was not limited to any single act or to any identified class of acts described by reference to a standard. Instead, he characterized it as a “roving commission to inquire into evils upon discovery to correct them,” describing it as a delegation that ran riot and stating that no such plenitude of power could be transferred.

Nevertheless, the Court noted that American courts have upheld delegated legislation in many instances, creating a substantial gap between the theoretical prohibition against delegation and its practical application. The extent of the exceptions to the rule can be seen in an elaborate note that accompanies the report of Panama Refining Co. v. Ryan in the 79 Lawyer’s Edition at page 448. In that note, the authors categorize the instances of delegation that have been upheld in the United States under eight principal heads, each with several sub-heads. The first category is delegation of power to determine the facts or conditions on which the operation of a statute depends. The second is delegation of non-legislative or administrative functions. The third is delegation of power to make administrative rules and regulations. The fourth concerns delegation to municipalities and other local bodies. The fifth includes delegation by Congress to a territorial legislature or commission. The sixth pertains to delegation to private persons, non-official individuals, or corporations. The seventh involves vesting discretion in the judiciary. The eighth concerns the adoption of the law or rule of another jurisdiction.

The Court further explained that American judges, when delineating these exceptions, have offered various justifications. As an illustration, Justice Holmes, speaking for the Court in the Springer case, observed that even if the delegation is disguised by veiling language, it is impossible to draw a precise mathematical line between legislative and executive action or to separate the branches into completely watertight compartments, a notion the Court does not accept as required by the Constitution (1). This remark underscores the practical difficulty of maintaining a strict doctrinal barrier against delegation while ensuring effective governance.

In the passage cited, the Court referred to a statement attributed to the Government of the Philippine Islands, observing that “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.” The Court then quoted the decision in Mutual Film Corporation v. Industrial Commission, noting that if the legislature were required to provide for every minute detail of regulation, it would effectively be stripped of the power to enact effective legislation on subjects over which it unquestionably has authority. The Court articulated a “true distinction” by explaining 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 itself depends. To deny such delegation, the Court warned, would halt the functioning of government. A further quotation, attributed to Ranney J. in Cincinnati W. & Z.R. Co. v. Clinton County Commissioners, emphasized that the essential difference lies between delegating the power to create law—a discretion that cannot be transferred—and conferring authority to execute the law, which may be vested in others without objection. The citations accompanying these observations include (1) 277 U.S. 189, (31) Locke’s Appeal, 1873, 72 Pa. 491, (2) 236 U.S. 230, and (4) 1 Ohio St. 88.

The Court proceeded to note that “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,” as expressed in Moore v. Reading. It further cited United States v. Shreveport Grain & E. Co., observing that Congress may declare its will, fix a primary standard, and then devolve upon administrative officers the power to fill in details by prescribing administrative rules and regulations. The Court added that the Constitution has never been interpreted as denying Congress the flexibility and practicality required to lay down policies, establish standards, and leave the making of subordinate rules and the determination of facts to selected instrumentalities within prescribed limits. Without such authorizations, legislative power would become futile in many circumstances. This perspective was attributed to Hughes C.J. in Panama Refining Co. Ryan. Finally, the Court affirmed that this does not imply that the three branches of government are not coordinate parts of a single system, and each may invoke the action of the others within its constitutional field, as stated by Taft C.J. in J.W. Hampton Jr. & Co. v. U.S.

The judgment quoted several extracts, acknowledging that doing so might burden the opinion for two principal reasons. First, the cited authorities – namely 21 Pa. 202, 293 U.S. 388, 287 U.S. 77 and 276 U.S. 394 – demonstrate that, despite the widespread acceptance of the doctrine of separation of powers in the United States, the rule against delegation of legislative authority is not rigid or immutable in that jurisdiction. Numerous distinguished American judges have endeavoured to interpret that rule in a pragmatic manner so that it conforms to the requirements of contemporary administration. Second, those authorities illustrate that the rule prohibiting delegation does not logically follow as an inevitable consequence of the separation-of-powers doctrine.

It was further noted that, although the principle of separation of powers also underlies the Australian Constitution, the objection that legislative delegation is impermissible because of the constitutional distribution of powers has been raised only in a limited number of Australian cases and that, in each of those instances, the objection has been rejected. The inaugural case in which this objection was articulated was Baxter v. Ah Way1. In that proceeding the validity of section 52 of the Customs Act 1901 was attacked. Section 52, after listing certain prohibited imports, provided that “all goods the importation of which may be prohibited by proclamation” would also be covered. Section 56 of the same Act authorised the power to prohibit the importation of goods subject to any specified condition or restriction and declared that goods imported in contravention of such a condition or restriction would be deemed prohibited imports.

The challenge to these provisions rested on the contention that they amounted to an unlawful delegation of legislative power, a power that the Australian Constitution vests in the Federal Parliament. The Chief Justice Griffith, however, dismissed the contention. In doing so he relied upon the decision in Queen v. Burah2 and other authorities, observing that unless the legislature is prepared to enumerate, once and for all, or for such an extended future period as it deems appropriate, a definitive list of prohibited goods, it must retain the ability to impose a prohibition contingent upon a condition. That condition may be the emergence or the discovery of a particular fact, as noted in the authorities (1909) 8 C.L.R. 626 and 3 App. Cas. 889. Moreover, if that fact is to serve as the condition upon which the right to import the goods depends, there must exist a mechanism for ascertaining that fact, a person empowered to do so; the Governor-in-Council was identified as the authority appointed to ascertain and declare the fact.

Other cases in which a comparable objection was raised include Welebach Light Co. of Australasia Ltd. v. The Commonwealth1, Roche v. Kronheimer2, and the pair of decisions Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan3. In the latter case, which examined the issue in considerable depth, Justice Dixon remarked accordingly, underscoring the Court’s position that the constitutional separation of powers does not absolutely prohibit legislative delegation when practical governance demands it.

In this passage, the Court observed that the era when the constitutional allocation of powers among the separate organs of government was intended to limit legislative authority to Parliament, thereby preventing the delegation of essentially legislative power to the Executive, has passed (4). The Court noted that in England the doctrine of separation of powers has had little impact on judicial decisions or on the shaping of the Constitution, even though eminent writers such as Locke and Blackstone strongly advocated it in the seventeenth and eighteenth centuries. Locke, in his Treatise on Civil Government, declared that the legislature cannot transfer the power of making laws to any other hands because it is a delegated power from the people and those who possess it may not pass it on (g 141). Blackstone echoed this view, stating that wherever the right to make and enforce the law is vested in the same person or body, public liberty cannot exist (5). Montesquieu, when formulating the doctrine of separation of powers, regarded it as the quintessence of the British Constitution, a view he praised (4) (5). The Court observed that while the doctrine attracted considerable attention in England during the seventeenth and eighteenth centuries, its meaning gradually diverged from the interpretation it acquired in the United States. In the United States the emphasis lies on the mutual independence of the three branches of government, whereas in England the doctrine primarily signifies judicial independence, while the emergence of the Cabinet system creates a link between the executive and the legislature. The Court explained that the Cabinet system operates differently from the non-parliamentary system of the United States. In the United States the executive power resides in the President, to whom the members of the Cabinet are personally responsible; the President and Cabinet members cannot sit or vote in Congress and have no responsibility for introducing bills or seeking their passage. By contrast, in England the Cabinet consists of members of Parliament drawn from the party that holds a majority in the House of Commons. The Cabinet exercises a decisive role in parliamentary legislation and initiates important bills through the ministers, leading to the observation that while Parliament remains supreme because it can form or dissolve the Government, the Government, once in power, tends to control Parliament. The Court concluded that although the rule against delegating legislative power has been treated in America as a consequence of the separation of powers doctrine, it is not a necessary or inevitable result of that doctrine.

In this passage the Court observed that although the United States often treats the prohibition against delegating legislative authority as a direct consequence of the doctrine of separation of powers, that relationship is not logically necessary. The Court noted that the manner in which the rule has been relaxed in the United States and the extensive justifications offered for such relaxation demonstrate that the connection is not inevitable. The Court further pointed out that Australian case law, even though the Australian Constitution is theoretically founded on the principle of separation of powers, shows a trend that the principle does not prevent delegation when appropriate circumstances exist. The Court stated that the division of governmental powers has become a normal feature of all modern constitutions and cited Rich J.’s observation in New South Wales v. Commonwealth(1) that such division is well-known throughout British jurisdictions, and that except for the United States no jurisdiction has held that the division alone forbids legislative delegation. The Court expressed the view that American jurists have gone too far in treating the anti-delegation rule as a direct corollary of separation of powers. The Court then turned to what it described as the third principle, which it regarded as the genuine basis for the anti-delegation rule. The Court quoted Cooley’s Constitutional Limitations, Volume 1, page 224, stating: “One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.” The Court also reproduced Cooley’s later commentary from the fourth edition, page 138, emphasizing: “No legislative body can delegate to another department of the government, or to any other authority, the power, either generally or specially, to enact (1) 20 C.L.R. 54 at 108. laws. The reason is found in the very existence of its own powers. This high prerogative has been intrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it.” The Court clarified that this broad rule reflects the maxim delegatus non potest delegare, but warned that it is often misunderstood. In the Court’s judgment the rule simply means that the legislature may not abandon its legislative functions nor eliminate them by creating a parallel legislature to perform its primary duty.

In this discussion, the Court observed that a legislature cannot delegate its primary duty to a parallel legislature in order to perform the essential function for which it has been entrusted. The principle that a legislative body may not abdicate its core responsibilities has been recognised both in the United States and in England. Hughes, C. J., articulated the rule by stating, “The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested.”1

The same issue was examined by Evatt J. in the cases Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Neakes v. Dignan. He explained that, “On final analysis therefore, the Parliament of the Commonwealth is not competent to ‘abdicate’ its powers of legislation. This is not because Parliament is bound to perform any or all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation of powers prevents Parliament from granting authority to other bodies to make laws or bye-laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of 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 would be bad merely because it would fail to pass the test last mentioned.”1 2

The Court further noted that Lord Haldane, in In re the Initiative and Referendum Act, had summarised the correct legal position. Lord Haldane observed, “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 has been done when, in Hodge v. The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence.”3

The Court acknowledged that determining what amounts to abdication and which class of cases fall within that description will always depend on the facts, and that no single comprehensive formula can be laid down. Nevertheless, the rule against abdication does not forbid a legislature from employing any subordinate agency of its choosing to carry out subsidiary acts that are necessary to make its legislation effective, useful and complete. After reviewing the three principles traditionally said to prohibit the delegation of legislative powers, the Court indicated that it would now consider the argument presented by the Attorney-General that the power of delegation is implicit in the power of legislation, an argument founded on the principle of legislative sovereignty within its appointed field.

In this passage, the Court noted that constitutional writers have described sovereignty in various ways, and that a distinction is sometimes drawn between legal sovereignty and political sovereignty. One writer described sovereignty as the power to make laws and to enforce them by whatever coercive means the law permits, and he added that in England the legal sovereign—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—the body in whom ultimate power resides—is the electorate or voting public[1919] A.C. 935 at 945. The Court then referred to Dicey, who defined the legal conception of sovereignty as the power of law-making without any legal limitation, and consequently identified the sovereign power under the English Constitution as Parliament. Dicey’s main attribute of such sovereignty was expressed in the statement that there is no law which Parliament cannot change; in other words, even fundamental or constitutional laws are altered by the same body in the same manner as ordinary statutes, namely by Parliament acting in its ordinary legislative capacity, and that no enactment of Parliament can be declared void. Dicey also described the characteristics of a non-sovereign law-making body as: (1) the existence of laws that such body must obey and cannot change; (2) a marked distinction between ordinary laws and fundamental laws; and (3) the presence of one or more persons, judicial or otherwise, who have the authority to pronounce on the validity or constitutionality of the laws passed by that body. Turning to the Indian or colonial legislature, the learned writer labelled it a non-sovereign legislature and observed that its authority to make laws was completely subordinate to, and dependent upon, Acts of Parliament, likening it to the power of the London and NorthWestern Railway Company to make bylaws. The Court held that this characterization was an overstatement and was not applicable to the present Indian Parliament. Although the present Parliament may not be as sovereign as the Parliament of Great Britain, the Court found that it is at least as sovereign as the United States Congress and the legislatures of other independent federal countries. More importantly, Dicey himself, when discussing colonial and similar legislatures, remarked that they are, within their own sphere, copies of the Imperial Parliament and sovereign bodies, but their freedom of action is controlled by their subordination to the Parliament of the United Kingdom. The Court observed that these remarks undoubtedly applied to the Legislative Council of 1912 that enacted the Delhi Laws Act, 1912, and that they also apply to the present Parliament, with the material modification that its freedom of action is no longer controlled by subordination to the British Parliament but by the Indian Constitution.

It was observed that the freedom of legislative action in India is no longer governed by subordination to the British Parliament; instead, it is regulated by the provisions of the Indian Constitution. At this point, the Court found it helpful to refer to several decisions of the Privy Council rendered in England that directly addressed the scope of authority exercised by Indian and other colonial legislatures. The principal authority on the matter is the case of Queen v. Burah(1). That decision has been cited by this Court on multiple occasions and is accepted as persuasive authority. In Queen v. Burah, the issue concerned a provision of Act No. XXII of 1869 which gave the Lieutenant-Governor of Bengal the power to decide whether a particular law or any part of it should apply to a specific territory. The question before the Privy Council was whether that provision was ultra vires. The Council held that the provision was intra vires, but while doing so it made several observations that have been quoted repeatedly and merit citation again. After concluding that the Indian Legislature was not a mere delegate of the Imperial Parliament and that the maxim “delegatus non potest delegare” therefore did not apply (see the earlier passage dealing with this point), the Privy Council stated:

“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 authorized 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 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 Privy Council then added that the Legislature had exercised its judgment regarding place, person, laws, and powers, and that the result of that judgment was conditional legislation that became absolute once the specified conditions were fulfilled. It explained that where plenary legislative powers exist over particular subjects, whether in an Imperial or a provincial legislature, those powers may be exercised either absolutely or conditionally. Conditional legislation, which depends on the use of certain powers or on the exercise of a limited discretion entrusted by the Legislature to trusted individuals, is not an unusual occurrence. The Council noted that the British Statute Book contains many examples of such conditional legislation, and that it could not be assumed that the Imperial Parliament, when constituting the Indian Legislature, failed to contemplate this type of conditional lawmaking within the scope of the powers it periodically conferred.

The Court observed that conditional legislation is an uncommon thing, yet in many circumstances it may be highly convenient. It pointed out that the British Statute Book abounds with examples of such legislation, and it could not be supposed that the Imperial Parliament, when constituting the Indian Legislature, had not contemplated this kind of conditional legislation as falling within the scope of the legislative powers it periodically conferred. The next case on the subject is Russell v. The Queen (1). In that case the Canadian Temperance Act, 1878, was challenged on the ground that it was ultra vires the Parliament of Canada, as reported in 7 App. Cas. 829. The Act provided that it would be brought into force in any county or city only if a majority of the electors of that county or city voted in favour of such a course and the Governor-General in Council then 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 voters in a city or county. The passage in which this is made clear runs as follows: “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.” The same doctrine was laid down in the case of lodge v. The Queen (1), where the question arose as to whether the legislature of Ontario had the power of entrusting to a local authority—the Board of Commissioners—the power of making regulations with respect to the Liquor Licence Act, 1877, which among other things created offences for the breach of those regulations and annexed penalties thereto. Their Lordships held that the Ontario Legislature had that power, and after reiterating that the Legislature which passed the Act was not a delegate, they observed as follows: “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.”

The Court explained that the powers granted to a provincial legislature were limited by the subjects enumerated in section 92 of the Constitution, just as the Imperial Parliament could exercise only the plenitude of powers that it possessed and could confer. Within the sphere of those subjects and the geographical area defined by section 92, the provincial legislature was supreme and exercised authority that was equivalent to that which the Imperial Parliament or the Dominion Parliament would have exercised under comparable circumstances. Accordingly, the legislature could delegate to a municipal body of its own creation the power to make bylaws or resolutions on matters specified in the primary enactment, for the purpose of giving effect to that enactment.

Another decision that the Court found relevant was Powell v. Apollo Candle Co. (1). The issue in that case was whether section 133 of the Customs Regulations Act of 1879 of New South Wales was beyond the authority of the colonial legislature. Section 133 provided that when an article of merchandise, unknown to the collector, was imported and, in the opinion of the collector or the commissioners, appeared to be a substitute for a known dutiable article or seemed intended to evade duty, yet possessed properties that could be used for the same purpose as the dutiable article, the Governor could lawfully direct that a duty be imposed on that article at a rate proportionate to the degree to which the unknown article approximated in quality or use the dutiable article. The Privy Council rejected the argument that the colonial legislature acted merely as a delegate of the Imperial Parliament and held that it was not merely an agent. The Council then addressed the question, observing (10 App. Cas. 282) that although one might argue that the tax was imposed by the Governor and not by the Legislature, the duties levied under the Order in Council were in fact exercised under the authority of the Act that authorized the order. The Legislature had retained complete control over the Governor and could at any time withdraw or modify the power it had entrusted to him. On that basis, the Council concluded that the Supreme Court had erred in holding section 133 to be beyond the Legislature’s power.

The Court noted that several other cases had been cited, illustrating the principle that a legislature, even if non-sovereign under Dicey’s tests, remains supreme within the field assigned to it. While it was unnecessary to enumerate every such case, the Court did quote a relatively recent Privy Council judgment in Shannon v. Lower Mainland Dairy Products Board (1), which stated: “The third objection is that it is not”.

The Court observed that it was not within the authority of a Provincial Legislature to hand over what is described as “legislative powers” to the Lieutenant-Governor in Council, nor to permit the Lieutenant-Governor to further delegate those powers. The Court regarded this objection as an attempt to undermine the rights that the Provincial Legislature enjoys when it deals with subjects over which the Constitution has vested legislative authority. Within the sphere assigned to it, the Provincial Legislature is supreme in the same manner as any other Parliament, and it is unnecessary to list the countless instances in which Provincial, Dominion and Imperial legislatures have trusted various persons or bodies with powers comparable to those contained in the present Act.

The Court then turned to certain principles that can be drawn from the Privy Council decisions cited earlier, particularly the case reported in Shannon v. Lower Mainland Dairy Products Board ([1938] A.C. 708 at 722). Apart from affirming that Indian and colonial legislatures are supreme within their own fields and that the maxim “delegatus non potest delegare” does not apply to them, the Court noted several specific points. First, the Privy Council was reluctant to endorse the notion that delegated legislation is permissible; instead, it preferred to describe the challenged provisions as “conditional legislation” that the respective legislatures were competent to enact, or as ancillary measures necessary for the implementation of primary legislation. Second, each enactment that had been characterized as delegated legislation actually contained the entire legislative scheme within itself, setting out the condition and all consequences that would follow upon the condition’s satisfaction. Third, legislative power is not considered to have been transferred away when the legislature retains the ability to abolish the subordinate agency at any time, to replace it with another, or to assume the matter directly. Fourth, the extent to which a legislature may rely on subordinate agencies and the duration of such reliance are matters for the legislature itself, not for the courts. Fifth, when a legislature entrusts important regulations to other bodies, it does not extinguish its own authority. Finally, the Court emphasized that, like the Governor-General in Council, a legislature cannot, by any enactment, create a new legislative power that does not already exist under the authority of the parent Act.

The Court observed that a legislative authority which was not created or authorised by the Councils Act could not be said to exist independently of the Governor-General in Council, to which such authority ultimately owed its existence. It noted that the terms “delegated legislation” and “delegating legislative power” were sometimes employed in a loose or popular sense and at other times in a strict legal sense. In various treatises and reports dealing with so-called delegated legislation, the loose sense had been applied, and if that sense were applied to the material before the Privy Council, every one of the matters would appear to be an instance of delegated legislation or of delegation of legislative authority. However, the Privy Council consistently rejected the proposition that the cases before it represented delegated legislation or a delegation of legislative authority.

The Court explained that a clear instance of delegation in the strict sense would arise only where a legislature completely abdicated its functions and established a parallel legislature, transferring all of its legislative power to that body. In such a circumstance the legislature would have transferred the entirety of its power, attributes and discretion to another authority. By contrast, the Privy Council repeatedly held that where the legislature retained its dominant power, retained the ability to abolish the subordinate agency at any time, could create another agency, or could take the matter directly into its own hands, it had not relinquished its own legislative power. The Court further stated that an act performed by a subordinate authority did not possess the true legislative character if the effectiveness of that act derived not from the subordinate authority itself but from the empowering legislation that had delegated the power. In several of the cases referenced, the Privy Council discussed the nature and principles of legislation, observing that conditional legislation merely involved entrusting limited discretionary authority to others and that seeking the assistance of subordinate agencies to achieve the purpose of the legislation was ancillary to the legislative process and fell within the normal scope of powers that every legislature must possess to function effectively. The Court also mentioned that a substantial body of American literature addresses the concept of delegated legislation. Careful study of judgments of eminent American judges shows that, although some judgments used the term in a popular sense, many judges, like the Privy Council, were scrupulous in articulating the principles. When they upheld a provision challenged on the ground that it represented a delegation of legislative authority, they based their decision on the finding that, in law, no such delegation had occurred. Finally, the Attorney-General relied upon the authority of Evatt J. for the proposition that “the true nature and scope of the legislative power of…”.

The judgment observed that Parliament, by its very nature, possesses the authority to confer law-making power on bodies other than itself, a view supported by the cited passage (1). It accepted without doubt that a sovereign legislature enjoys a wide latitude of action within its jurisdiction, yet the Court expressed doubt that Justice Evatt’s statement was precisely accurate in a strict legal sense. The first issue raised concerned the definition of “law-making power” and whether such power, in its true sense, could ever be delegated. A second difficulty concerned the consequences of treating delegation as an inherent implication of legislative authority; the Court noted that accepting this premise would make it hard to determine the exact point at which the legislature must cease to delegate. It would then become a legitimate question whether the legislature might lawfully delegate one percent, ten percent, or even ninety-nine percent of its legislative power, and whether logical reasoning might ultimately permit the delegation of the entire legislative content in certain circumstances. The Court preferred to follow the approach adopted by the Privy Council in several earlier decisions, describing it as the correct and strictly legal formulation of the matter. According to that view, the legislature must obtain adequate information, must legislate for both present and future needs, and must cater for a multitude of situations that may be difficult to predict. To achieve these objectives, the legislature may employ various types and forms of legislation, entrusting appropriate agencies with authority to fill in details and adapt the law to changing circumstances. Consequently, the concepts of “conditional legislation,” fully explained in a series of judgments, and “subordinate legislation,” which authorises subordinate authorities to make rules and regulations to give effect to the purpose of an enacted law, have been recognised as permissible. Both forms are accepted on the principle that a legislature may undertake any action that is ancillary to or necessary for effective legislation. Once this principle is accepted, the legislature may resort to any other legislative form on the same basis, provided it remains within the limits of its authority, whether those limits arise from external constraints or from the nature of the duties assigned. The Court then summarised its conclusions as follows: first, the legislature must ordinarily discharge its primary legislative function itself rather than through others; second, once the legislature’s sovereign powers within a particular sphere are established, it is consequently free to legislate within that sphere in any manner it deems appropriate to achieve its intended policy.

The Court observed that a legislature is free to choose the most effective means of giving effect to its intention and policy in the making of a particular law, and that it may enlist any external agency to whatever extent it finds necessary for tasks which the legislature itself either cannot perform or finds inconvenient to perform. In effect, the legislature may carry out any activity that is ancillary to and required for the full and effective exercise of its legislative power. The Court further emphasized that the legislature may not relinquish its core legislative functions; consequently, when it delegates authority to an external body, it must ensure that such body operates only as a subordinate authority and does not become a parallel legislature. The Court then turned to the doctrine of separation of powers as it has been interpreted in the United States since the framing of the American Constitution. It noted that American courts use that doctrine to restrain undue and excessive delegation of legislative power, but that the courts of this country are not bound by the same doctrine and therefore cannot apply it in the identical manner. Accordingly, the Court held that in this jurisdiction there are essentially two principal safeguards on legislative delegation: the legislature’s own prudence and the principle that delegation must not go so far as to amount to “abdicacation and self-effacement.” The Court proceeded to identify the three specific questions presented for determination in this reference. First, whether section 7 of the Delhi Laws Act 1912, or any of its provisions, was ultra vires the legislature that enacted the Act and, if so, to what extent. Second, whether the Ajmer-Merwara (Extension of Laws) Act 1947, or any of its provisions, was ultra vires the legislature that passed it and, if so, in what particulars. Third, whether section 2 of the Part C States (Laws) Act 1950, or any of its provisions, was ultra vires the Parliament and, if so, to what extent. Before answering these questions, the Court deemed it necessary to set out briefly some salient facts concerning the composition and powers of the Indian Legislature at the times when the three Acts were enacted. Historically, the executive Government alone possessed the authority to make regulations and ordinances for the “good government of the factories and territories acquired in India.” Up to the year 1833, laws were enacted either by the Governor-General in Council or by the Governors of Madras and Bombay in Council, and such enactments took the form of regulations. The Charter Act of 1833 expanded the Governor-General’s Council by adding a fourth member who could participate in meetings concerned with the making of laws and regulations, and that Act expressly empowered the Governor-General in Council to legislate for the whole of India, while withdrawing the legislative powers that had previously rested with the Governors of Madras and Bombay.

Although the Governors of Madras and Bombay were permitted to propose draft schemes, the Acts that were passed by the Governor-General in Council had to be laid before the British Parliament and were given the same legal force as an Act of Parliament. In the year 1853 the strength of the Governor-General’s Council was enlarged to twelve members. This increase was achieved by converting the fourth member, previously a special participant, into an ordinary member and by adding six special members whose sole function was to deal with legislation. The next major development came with the Councils Act of 1861. That statute restored the power to legislate to the Governors of Madras and Bombay while they sat in Council, and it also provided for the appointment of a legislative council for Bengal. Nevertheless, the Governor-General in Council retained the competency to exercise legislative authority over the whole of India and could enact laws covering “all persons and all places and things.” For legislative purposes the council was further re-structured so that it would include between six and twelve members who were nominated for a period of two years by the Governor-General; at least one-half of those nominated had to be non-officials. Within this council no measure dealing with certain specified topics could be introduced without the sanction of the Governor-General, and no law would become valid until the Governor-General gave his assent. The ultimate power to disallow any law was reserved to the Crown. In addition to the central council, local legislatures were constituted for Madras and Bombay. In each of those bodies half of the members were to be non-officials nominated by the respective Governor, and a law passed by a local legislature required the assent of both the Governor and the Governor-General in order to be given effect. A similar legislature was directed to be established for the lower provinces of Bengal, and authority was granted to create legislative councils for certain other provinces. The Indian Councils Act of 1892 was subsequently enacted, further expanding the legislative councils and conferring new rights on their members. The Morley-Minto scheme of 1909 increased the strength of the legislative council by the addition of sixty members, of whom twenty-seven were to be elected and thirty-three nominated. Soon after, in 1912, the Delhi Laws Act was passed. Two observations are relevant regarding the legislature that functioned under that Act. First, its powers were plenary, matching those of the 1861 legislature whose authority had been examined before the Privy Council in the Buraḥ case. Second, given that the composition of the council was dominated by non-official and executive elements, there was no room to apply the doctrine of separation of powers in its full sense, nor could it be said that the doctrine prevented the legislature from investing the Governor-General with the powers that the Delhi Laws Act gave him. It should be noted that section 7 of the Act, as originally enacted, identified the Governor-General as the authority authorised to act under the statute.

The provision initially authorized the Governor-General, by means of a notification, to extend any enactment that was in force in any part of British India at the date of such notification; subsequently the wording was amended so that the “Provincial Government” replaced the reference to the Governor-General. Turning to the second statute, namely the Ajmer-Merwara (Extension of Laws) Act, 1947, it was enacted on 31 December 1947 while the Government of India Act, 1935, as amended by the India (Provisional Constitution) Order, 1947 and issued under the Indian Independence Act, 1947, remained the governing legislation. Under that Act there existed three distinct Legislative Lists—Federal, Provincial and Concurrent. List I comprised subjects on which the Central Legislature could legislate, List II comprised subjects for the Provincial Legislature, and List III comprised subjects on which both the Central and the Provincial Legislatures were competent to legislate. Section 100(4) of the Act provided that the Dominion Legislature possessed the power to make laws with respect to matters enumerated in the Provincial Legislative List, except where the law concerned a Province or any part thereof. Section 46(3) further clarified that, unless the context required otherwise, the term “Province” denoted a Governor’s Province. Consequently, when section 100(4) was read together with the definition of “Province,” it became clear that the Dominion Legislature was empowered to enact laws on subjects contained in all three Lists for Ajmer-Merwara, which was not classified as a Governor’s Province. Accordingly, the Central Legislature was competent to legislate for Ajmer-Merwara on any subject and enjoyed plenary authority over the entire legislative field allotted to it. Moreover, at the time this Act was passed, the Dominion Legislature was simultaneously functioning as the Constituent Assembly and therefore possessed the capacity to frame the Constitution. The third statute under consideration was enacted after the present Constitution had come into force. Article 245 of the Constitution states that, subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India, and a State Legislature may make laws for the whole or any part of the State. In keeping with the pattern established by the Government of India Act, 1935, the Seventh Schedule of the Constitution contains List I and List II, which enumerate the subjects on which Parliament and State Legislatures may respectively legislate, while List III enumerates subjects on which both Parliament and State Legislatures may legislate. Article 246(4) provides that Parliament has the power to make laws with respect to any matter for any part of India not included in Part A or Part B of the First Schedule, notwithstanding that such matter may be enumerated in the State List. The points to be noted in connection with the Part C States (Laws) Act, 1950, are as follows: (1) the present Parliament derives its authority from the Constitution, which was framed by the people of India through their Constituent Assembly, and not from any external authority, and

The Court observed that, within the sphere of its own authority, Parliament stands on a footing equal to that of any legislature of a nation possessing a written federal constitution. It further held that Parliament possesses complete authority to enact legislation concerning the Part C States with respect to any subject matter. While acknowledging that the Constitution establishes a degree of separation of governmental functions, the Court noted that the Cabinet system—a hallmark of the British constitutional tradition—remains a feature of the Indian Constitution, and that the doctrine of separation of powers, which has acquired profound significance in the United States, does not dominate the interpretation of any constitutional provision in India.

The Court then turned to an argument that relied upon articles 353(b) and 357(a) and (b) of the Constitution. Article 353(b) provides that when the President issues 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, on the other hand, deals with the situation of a failure of constitutional machinery in a State and states 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 under sub-clause (a), 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 thereof.” The Court explained that both articles expressly grant a power of delegation. The argument advanced by counsel claimed that because normal legislation does not contain an express delegation provision similar to those in articles 353(b) and 357(a) and (b), the power to delegate must be absent. In other words, the absence of an explicit clause was taken to imply the non-existence of a delegation power.

The Court cautioned that the provisions in articles 353(b) and 357 are emergency measures and therefore do not aid in resolving the issue presently before it. Regarding article 353(b), the Court clarified that a specific provision was required to empower Parliament to legislate on matters listed in the State List, matters over which Parliament would not otherwise have competence. When Parliament is specially empowered to legislate in a field normally beyond its reach, the Constitution must enumerate the full extent of the powers that Parliament may exercise. Similarly, article 357(a) concerns the complete transfer of legislative authority to the President in the event of a failure of constitutional machinery in a State, with clause (b) merely providing incidental powers to Parliament and the President to legislate for that State. The Court concluded that these emergency provisions do not support the inference that delegation of legislative power is categorically prohibited in ordinary legislation.

In the portion of the Constitution dealing with emergency powers, clause (a) provides for a complete transfer of legislative authority to the President, whereas clause (b) is only ancillary to the powers that have been given to both Parliament and the President to enact legislation for a State when the constitutional machinery of that State fails. The Court observed that these constitutional provisions do not support the interpretation that the petitioner seeks to advance. In fact, the Attorney-General argued the opposite conclusion, contending that the very existence of clauses (a) and (b) demonstrates that the framers of the Constitution accepted the permissibility of delegating legislative power whenever such delegation was deemed necessary. The Court, however, rejected both the petitioner’s inference and the Attorney-General’s contrary inference as untenable. After rejecting those lines of reasoning, the Court turned to examine the three statutory provisions that form the subject of the reference, because they are the provisions for which a definitive answer is required.

The first provision under consideration is Section 7 of the Delhi Laws Act, 1912, which reads: “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 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.” These three statutory clauses are presented in their full language to show exactly what authority they confer on the respective governments.

When the Court examined these provisions at first sight, it noted that they appear to grant very broad powers. The most salient characteristics are as follows. First, none of the Acts contains a schedule or list that limits the range of laws that may be selected; consequently, the Provincial Government under the Delhi Laws Act or the Central Government under the Ajmer-Merwara and Part C States Acts may exercise unfettered discretion to adopt any law that has been enacted in any part of the country, whether that law originated in a Central or a Provincial legislature. Second, the operative language of each provision is not confined to those statutes that were in existence at the moment each Act was passed; rather, the language expressly allows the respective Government to extend not only existing statutes but also any law that may be passed in the future. Third, the statutes empower the concerned Government not merely to extend or adopt the selected law but also to impose any restrictions or modifications that it deems appropriate; moreover, in the Part C States (Laws) Act, 1950, the Central Government is additionally authorised to insert a clause in the extended enactment that provides for the repeal or amendment of any corresponding law (except a Central Act) that is presently applicable to the Part C State in question. These features together demonstrate the extensive scope of the delegatory powers that have been vested in the Governments by the three Acts.

The judgment explained that the Acts contained a provision allowing the repeal or amendment of any existing law, other than a Central Act, that was then applicable to a Part C State. It was observed that the authority granted to the Government by the three Acts was extremely wide, exceeding the scope of comparable statutes in England or the United States. Nevertheless, the Judge expressed the view that, despite the unusual features highlighted earlier, those provisions could not be declared invalid. For the purposes of analysis, the Court set aside temporarily the power to introduce modifications, which would be addressed later, and focused on the principal provision contained in the three Acts.

The Court described the circumstance confronted by the respective legislatures when the Acts were enacted. Certain States lacked their own legislatures, and consequently a comprehensive body of law had to be created for them. The legislatures, before passing the Acts, examined the problem and reached two principal conclusions. First, they determined that the needs of the law-less State or States could be satisfied by adopting laws already operative in other Provinces, because those laws covered a broad spectrum of subjects from various perspectives and therefore were sufficient to meet the requirements of the State or States in question. Second, they decided that the task of selecting and applying those laws should be delegated to an authority that was expected to be familiar with, and could readily become familiar with, the specific needs and conditions of the concerned State or States.

The Court noted that each Act that was consequently enacted functioned as a complete law. Each Act embodied a coherent policy, set a clear standard, and instructed the chosen authority to operate within expressly prescribed limits, prohibiting any action beyond those limits. In this way, every Act represented the full expression of the legislature’s intention to act in a particular manner and contained a directive on how that intention should be implemented. The legislatures had decided that, given the circumstances, this method was the most suitable way to legislate on the matter, and they legislated accordingly.

The judgment held that it would be incorrect to describe such legislation as an abdication of legislative power. The very nature of the statutes demonstrated that the legislature retained at all times the power to withdraw, modify, or amend any authority that had been entrusted to the selected agency, and could also change or repeal the laws that the agency was required to make applicable to the State or States. Moreover, the Court emphasized that the appointed agency was never empowered to create new legislation; its role was limited to adapting and extending laws that had been enacted by competent legislatures. Consequently, the power conferred on the Governments by those Acts was characterized as ministerial rather than legislative in nature.

The Court explained that the authority conferred by the statutes was not a true legislative power but rather a ministerial one; the Government’s task consisted merely of examining existing statutes and choosing those that were appropriate for application. The Court emphasized that such a delegation of power was not contrary to principle nor without any previous example, and it proceeded to illustrate this point. First, the Court noted that the facts of the case of Queen v. Burah were well known and therefore did not need to be restated, but for the sake of clarity it was necessary to refer to section 8 of Act XXII of 1869 and to several observations made by the Privy Council that directly related to that provision. The Court then reproduced the wording of the section, which authorised the Lieutenant-Governor, by means of 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 Governor-General’s Council or by the Lieutenant-Governor himself for the purpose of making laws and regulations. The section also allowed the Lieutenant-Governor, upon making such an extension, to designate the persons who would exercise the powers or duties arising from the extended provisions and to issue any order he deemed necessary to give effect to those provisions. The Court observed that although the Privy Council’s judgment did not quote this section verbatim, it clearly kept the provision in mind when it said that the legislature had decided that a particular change should occur, but that it was advisable to leave the timing and manner of implementation to the discretion of the Lieutenant-Governor. The Privy Council further observed that the legislature considered the laws existing or likely to exist in other territories under the same Government to be suitable for application to the district in question, yet, because it was uncertain whether every such law or every part of each law could be applied with equal convenience, it was prudent to entrust a discretion to the Lieutenant-Governor for that purpose. The Court indicated that this language could be readily adapted to the statutes presently under consideration, suggesting a formulation in which the legislature determined that the laws in force or potentially in force in other territories—excluding the phrase “subject to the same Government” for reasons explained later—were appropriate to apply to the State, but that, given the uncertainty about the uniform convenience of such application, it was likewise expedient to confer a discretion upon the Central or Provincial Government. The Court concluded that this line of reasoning corresponded fully with the facts before it, and it further stated that the expression “territories subject to the same Government” was not material to the analysis, because in Burah’s case only those laws that were…

The Court observed that the provision at issue concerned extending laws that were already in force in other territories subject to the same government, and it cautioned against giving undue emphasis to isolated words while urging focus on the principle underlying the earlier decision. It noted that under the original Delhi Laws Act the agency empowered to adapt the laws was the Governor-General, whereas under the other two Acts the designated agency was the Central Government. In 1912 the Governor-General exercised jurisdiction over all the territories whose laws were to be adapted for Delhi, and the same observation applied to the Central Government when dealing with the other two Acts. The Court reiterated that the earlier decision in Burah’s case had been accepted by this Court as correctly decided, and it was appropriate to describe the statutes presently under challenge as merely larger editions of Act XXII of 1869, the enactment that had been the subject of Burah’s case.

It further stated that it is now well settled in both England and America that a legislature may pass an Act allowing a Government, a local body, or another agency to make regulations that are consistent with the provisions of the parent Act. No argument was advanced before the Court that such a delegation of power could not be granted by the legislature to another body. The Court pointed to known instances where regulations creating offences and imposing penalties have been made and upheld as valid. It observed that the preparation of many of these regulations involves the exercise of far greater legislative power and discretion than the simple selection of appropriate laws from a mass of ready-made enactments. To support this view, the Court quoted a well-known American case that furnishes legal justification for empowering a subordinate authority to make regulations, noting that “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 Justice Fuller in Stoutenburgh v. Hennick, (1889) 129 U.S. 141).

The Court then noted that a similar point arose in Sprigg v. Sigcau, where section 2 of the Pondoland Annexation Act, 1894, was examined. That section gave the Governor authority to add to the existing laws in force in the annexed territories any law that he might from time to time declare to be in force in those territories.

The provision allowed the Governor to declare, by proclamation, that the existing laws already in force in the annexed territories shall continue to apply, and also to declare additional laws to be in force in those territories. In examining this provision, the Privy Council observed that the legislative authority given to the Governor by the Pondoland Annexation Act was expressed with great caution and was narrowly limited. The Council emphasized that the Act contained no language suggesting that the Governor was to become a dictator or to receive the full legislative powers of the Cape Parliament. According to the Council, the Governor’s sole power, after the Act became effective, was to add to the statutes and ordinances that had already been proclaimed and were operative at that time any other statutes and ordinances that he might, from time to time, declare by proclamation to be in force in the annexed territories.

The Lords further explained that the wording of the Act did not grant the Governor any authority to create “new laws” in the broad sense of the term. Instead, the Governor was authorised merely to transplant to the newly annexed territories those laws, statutes and ordinances that already existed and were operative elsewhere in the Colony. The appellant argued that the phrase “all such laws made” in the proviso indicated a power to enact new laws that were not already in force elsewhere. The Council rejected this submission, holding that those words could not override the plain meaning of the primary enactment, and that the proviso must be understood by reference to the word “such,” which points back to the previously defined statutes. Following that reasoning, it was correctly stated that the Central or Provincial Government was not being asked to legislate anew, but merely to transplant to the concerned territory laws that were already operative in other parts of the country.

The Council also noted a specific proviso in section 2 of the Pondoland Annexation Act, 1894, which required 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 Parliament.” The Council held that this proviso did not alter the fundamental principle. It was inserted merely as a precaution to ensure Parliament’s supervisory role, confirming that the laws would remain valid until Parliament chose to repeal, alter, or vary them. If the Privy Council’s statement is accepted, it confirms the principle that when the legislature enacts subordinate or conditional legislation, it does not surrender its complete control and retains the power at any time to withdraw or modify the authority delegated to another body.

The Court observed that the duty of superintendence was to be understood as an inherent feature of every such piece of legislation. It further referred to the rather unusual American case of Dorr v. United States, reported in 1904 at 195 US 138, in which the United States Supreme Court upheld a delegation by Congress to a commission appointed by the President that gave the commission the authority to legislate for the Philippine Islands. The Court noted that this precedent illustrated the validity of a legislative body delegating its power to another authority.

In addition, the Court mentioned several other American decisions where the adoption of a law or rule originating from a different jurisdiction had been permitted. One illustrative case was Re Lasswell, reported in 1934 at 1 Cal. Appl. (2d) 183, in which a California statute declared a state of emergency and provided that whenever the federal authorities established a code governing any industry, that federal code would automatically become the state code for the same industry, and the statute also prescribed penalties for violating such codes. The Court explained that the California Supreme Court had held that this scheme was constitutional and valid, rejecting the argument that it amounted to an unlawful delegation of legislative authority by the state legislature to the federal government and its administrative agencies. Although the Court acknowledged that Re Lasswell did not directly apply to the matters before it, it used the decision to demonstrate that, in certain circumstances, the application of laws enacted by one legislature to the jurisdiction of another legislature had been deemed permissible.

The Court then turned to Indian legislation that contained provisions similar to those found in English law. It pointed out that many Indian Acts provided that the provisions of the Act would initially apply to specified areas, but could later be extended by the Provincial Government or another appropriate authority to the whole or any part of a province. The Transfer of Property Act, 1882 served as a typical example. Section 1 of that Act declared that the Act would initially extend to all provinces of India except Bombay, East Punjab and Delhi, and that the Act or any part of it could be extended to the whole or any part of those provinces by a notification in the official Gazette issued by the Provincial Government concerned.

The Court observed that if a single provision were inserted in one Act granting all Provincial Governments the power to extend any of fifty or more Acts, the result would be the same in principle as having separate but similar provisions in each of those fifty Acts. It further noted that, in the Acts under consideration, the power to extend had been granted not only for statutes enacted by the Central Legislature, which was the original author of those Acts, but also for statutes enacted by Provincial Legislatures. In the Court’s view, the distinction between extending central statutes and extending provincial statutes did not affect the underlying principle. The central issue, the Court concluded, was whether a legislature could confer on an external agency the authority to extend an Act or a series of Acts to a particular geographic area.

The Court considered whether a legislature could empower an external body to extend legislation to a particular area, a question that inevitably returned the discussion to the doctrine of conditional legislation, a principle so entrenched in the legal system that it could not be readily set aside. It noted that the matter was highlighted by reference to several statutes that contain provisions analogous to those under review. The statutes identified were Sections 1 and 2 of the Act I of 1865; Sections 5 and 5A of the Scheduled Districts Act, 1874 (Act XIV of 1874); the Burma Laws Act, 1898 (Act XIII of 1898) together with its section 10(1); Section 4 of the Foreign Jurisdiction Act, 1947 (Act XLVII of 1947); and Section 4 of the Merchant Shipping Laws (Extension to Acceding States and Amendment) Act, 1949 (Act XVIII of 1949). The Court indicated that it would quote the relevant provisions of two of these earlier statutes, namely the Scheduled Districts Act, 1874 and the Burma Laws Act, 1898, to demonstrate the close analogy they bore to the statutes presently before it.

In the Scheduled Districts Act, 1874, Section 5 provides that “The Local Government, with the previous sanction of the Governor-General in Council, may, from time to time by notification in the Gazette of India and also in the local Gazette, if any, extend to any of the Scheduled Districts, or to any part of any such District, any enactment which is in force in any part of British India at the date of such extension.” Section 5A adds that when declaring an enactment in force in a Scheduled District, or extending it, “the Local Government … may declare the operation of the enactment to be subject to such restrictions and modifications as that Government think fit.” Similarly, the Burma Laws Act, 1898, Section 10(1) states that “The Local Government, with the previous sanction of the Governor-General in Council, may, by notification in the Burma Gazette, extend, with such restrictions and modifications as it thinks fit, to all or any of the Shan States, or to any specified local area in the Shan State any enactment which is in force in any part of Upper Burma at the date of the extension.” The Court observed that although no definite legislative practice had been firmly established before the Delhi Laws Act and the other statutes under consideration were enacted, it could be presumed that the legislature had previously experimented with such mechanisms and found them effective for achieving the intended purpose. The discussion then turned to the scope of the power of modification, focusing on the meaning of the words “with such modifications as it thinks fit.” These words, the Court explained, are familiar to careful drafters and are intended to permit a law applicable in one location or to one object to be adapted so that it may apply in another context, with the introduction of necessary restrictions and modifications being incidental to the authority to extend the law.

The Court observed that the authority to apply or adapt a law, where a provision permits modification, must not be interpreted in a negative or oppressive sense. It stressed that any modifications must be made within the structure of the Act and must not alter the Act’s identity, its essential framework, or its fundamental purpose. The power to modify necessarily includes discretion to make appropriate changes, but granting an authority the ability to adapt a law would be pointless without also permitting it to make suitable alterations. The Court noted that in English law the provision allowing an authority to introduce modifications in an Act is called a “Henry VIII clause”, since the monarch is seen as a symbol of executive autocracy. The Court cited Sir Thomas Carr, an experienced commentator on such legislation, who described the “Henry VIII clause” in his book “Concerning English Administrative Law” (page 44). Sir Thomas Carr observed that among all types of orders that alter statutes, the so-called “Henry VIII clause” inserted in large and complex Acts has probably caused the greatest excitement in England. He explained that the clause permits a minister, by order, to modify the Act as far as necessary to bring it into operation, and that orders made under this power have generally been surprisingly harmless. Carr further described the clause as partly a drafter’s insurance policy for oversights and partly a response to the huge number of local Acts in England that create special difficulties in particular areas. He added that these local Acts are difficult to trace, and a drafter cannot be sure of examined them all in advance, so the “Henry VIII clause” was intended to operate for a short time. The Court emphasized that the discretion to modify a statute is not absolute or irrevocable in a strict legal sense, and this principle was the primary focus of the present purely legal question. The Court referred to the judgment of Garth C.J. in Empress v. Burah (1), which stated that the legislature is always in a position to monitor how the powers it has conferred are being exercised. The same passage added that if those powers are exercised injudiciously, contrary to legislative intent, or produce inconvenient results, the legislature may by a later Act recall the powers or rectify the inconvenience. The Court mentioned that the learned Chief Justice, while discussing the Civil Procedure Code of 1861, observed that the code went further than the Act under challenge. He explained that the code granted local governments the power to alter or modify the Code in any manner they deemed proper. This authority enabled them to introduce a different law within their respective provinces rather than the law that was in force in the regulated provinces. The Court concluded the passage by noting that despite this broad power, the Privy Council regarded the Civil Procedure Code of 1861 as an example of valid conditional legislation.

The Court observed that the Civil Procedure Code of 1861 illustrated a proper example of conditional legislation. During the arguments, the parties placed before the Court a list of statutes enacted by the Central Legislature and by several Provincial Legislatures that expressly authorised certain authorities to modify the law. From the number of examples shown, the list was clearly not insignificant. For illustration, the Court mentioned several Acts, namely the Scheduled Districts Act, 1874; the Burma Laws Act, 1898; the Bombay Prevention of Prostitution Act, 1928; the Madras City Improvement Trust Act, 1945; the Madras Public Health Act, 1939; and the U.P. Kand Revenue Act, 1901, as recorded in (1) I.L.R. S Cal. 63 at 140. The Court also noted that similar legislation existed in England, and it cited a few instances to show that such enabling provisions were not confined to India. In 1929, a Bill was introduced in Scotland to achieve a policy of creating fewer but larger local authorities. While debating the Bill, legislators abruptly decided to introduce a new body called the district council. Because there was insufficient time to finalize the election procedures for the new councilors, the Bill applied to them the statutory provisions governing the election of county councilors in rural areas, “subject to such modifications and adaptations as the Secretary of State may by order prescribe.” In 1925, Parliament passed the Rating and Valuation Act, and section 67 of that Act authorised the Minister, by order, to remove any difficulty that arose in applying the Act to an exceptional area or in preparing the first valuation list for any area. The same provision further allowed the Minister, by such order, to modify any part of the Act that the Minister deemed necessary or expedient for giving effect to the order. In 1929, a new Local Government Bill contained section 120, which similarly empowered the Minister to make an order for removing difficulties deemed necessary, and permitted that order to modify the provisions of the Act. Section 1(2) of the Road Transport Lighting Act, 1927, gave the Minister of Transport the power to exempt vehicles wholly or partially from the requirements of the Act, while sub-section (3) authorised the Minister to add to or vary those requirements by regulations. Section 1 of the Trade Boards Act, 1918, permitted 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 that any such order might modify the provisions of the Act.

The Court observed that many other statutes contain comparable provisions authorising modifications, yet enumerating each example would not serve any useful purpose. The principal rationale for including a power to modify is that, without such a provision, the passage of legislation would be delayed, causing important and beneficial measures to be postponed. Moreover, once an Act is in force, any defect in its terms cannot be corrected until a separate amendment is enacted. The Court also noted that the authority to modify, though limited, does not extend as far as the numerous other powers that the legislature confers on senior officials and public bodies to act on its behalf in various matters.

According to the Court, it is now untimely to declare the statutes under consideration ultra-violet merely because the legislatures, while granting the Government the power to extend an Act, also supplied the Government with the discretion to impose modifications and restrictions deemed necessary. The Court recognised that the clause commonly termed the “Henry VIII clause” has periodically attracted criticism in England. The Committee on Ministers’ Powers, while acknowledging occasional necessity, added that such a clause should be justified by the responsible Minister to the fullest extent possible, limited strictly to the essential machinery required to bring an Act into operation, expressed in precise language, and subject to a maximum duration of one year after which the power would cease. If the time limit proved insufficient, the Government should return to Parliament with a one-clause Bill to extend it.

The Court further explained that, in England, delegated legislation often requires that regulations or provisions made by the delegated authority be laid before Parliament either in draft form, or on the condition that they do not take effect until parliamentary approval, or without any further direction. While the Acts presently before the Court could be criticised for not observing this safeguard, the Court held that the desirability of such safeguards does not affect the legal validity of the statutes, which must be determined solely on legal grounds. The Court then turned to section 2 of the Part C States (Laws) Act, 1950, insofar as it confers on the Central Government the power to make a provision within the extended enactment.

The Court noted that section 2 of the Part C States (Laws) Act, 1950, conferred on the Central Government the power to repeal or amend any law that was then applicable to the Part C State concerned. The Court observed that, although this power was far-reaching and unusual, a careful analysis revealed that it was only a necessary accompaniment of the power to transplant and modify laws. When a new law was to be made applicable, it often required the displacement of an existing law that had become obsolete or had ceased to serve any useful purpose; consequently, the authority tasked with applying the new law had to be able to declare that the old law would no longer apply. The Court searched for a comparable provision and identified the nearest parallel in the Church of England Assembly (Powers) Act, 1919. Under that Act, the Church Assembly was authorised to propose legislation concerning the Church of England, and the proposed legislation could extend to the repeal or amendment of Acts of Parliament, including the Church Assembly Act itself. However, the Court emphasized that such a proposal did not become law until Parliament granted it force through an affirmative address of each House, and therefore no real analogy existed between that Act and the provision under consideration. Nonetheless, the Court held that the provision must be upheld. Although it pushed the limits of legislative authority, the Court found it difficult to conclude that the power lay beyond a legislature that was supreme within its own field. The Court quoted Lord Hewart’s observation in King v. Minister of Health, stating that the Act could be regarded as “indicating the high water-mark of legislative provisions of this character,” and warned that without restraint the legislature might eventually abdicate its legislative functions. Before concluding, the Court made several general observations on delegated legislation and its limits. It described delegated legislation as a present-day necessity that had become inevitable and indispensable. The Court explained that the legislature now had to enact so many statutes that it could not attend to every detail, and that some subjects required the expression of broad principles only, leaving technical details to experts familiar with the field. Moreover, when legislation sought to implement complex reform schemes, it was impossible to produce a self-contained, complete Act at the outset because all contingencies and local requirements could not be foreseen. Accordingly, the Court stressed that a degree of flexibility was essential to enable continual adaptation to unknown future conditions without the constant need to amend the law.

The Court observed that delegating legislative authority offers distinct benefits. It enables the delegate to consult with those whose interests are likely to be affected by a particular law, to conduct practical experiments when necessary, and to apply the findings of those investigations in the most effective manner. The Court further noted that emergencies and urgent situations may arise that require swift action, and therefore it is appropriate to entrust substantial powers to authorities who must address various circumstances as they develop. To illustrate these points, the Court referred to statutes from England and other jurisdictions where reference to the enabling act alone justifies the need for delegated legislation. For example, the British Gold Standard (Amendment) Act, 1931 empowered the Treasury to issue and periodically amend orders authorising measures concerning exchanges and other matters it deemed expedient for mitigating difficulties arising from the suspension of the Gold Standard. Similarly, the National Economy Act, 1931 of England gave “His Majesty” the power to make Orders in Council effecting economies with respect to the services listed in the schedule, and the Minister designated in any such Order could then make regulations to give effect to that Order. In addition, the Food-stuffs (Prevention of Exploitation) Act, 1931 authorized the Board of Trade to take exceptional measures for preventing or remedying shortages of certain food and drink articles. The Court explained that the objectives intended to be achieved by these Acts could not have been realized through any other legislative format, thereby demonstrating the necessity of such delegated powers. The Court affirmed that the complexity of modern administration and the expansion of State functions into economic and social spheres have made it essential to adopt new forms of legislation and to confer broad powers upon various authorities on appropriate occasions. However, while acknowledging that delegation is now inevitable, the Court cautioned that the legislature must not exercise delegation injudiciously. It warned of dangers arising when delegated powers are defined so loosely that the intended scope cannot be clearly ascertained, and when wide delegated powers are granted to executive bodies while simultaneously depriving citizens of judicial protection against harsh or unreasonable exercises of those powers. The Court concluded that, for the reasons set out, none of the provisions that formed the subject of the three questions referred to it by the President were ultra vires, and it indicated that it would answer those questions accordingly. The judgment was delivered by Justice Patanjali Sastri, noting that the President of India, by an order dated 7 January 1951, had referred the matters to the Court under article 14:3 (1) of the Constitution for consideration and report, specifically raising three questions concerning the validity of certain sections of the Delhi Laws Act, the Ajmer-Merwara (Extension of Laws) Act, and the Part C States (Laws) Act.

The President of India, by an order dated 7 January 1951, referred three specific questions to the Supreme Court for consideration under article 14 of the Constitution. 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 the Act, and, if so, to what particular extent or in what particular respects the provision exceeded legislative authority. The second question concerned the Ajmer-Merwara (Extension of Laws) Act 1947 and similarly inquired whether that Act, or any part of it, was ultra vires the legislature that passed it, and requested a detailed description of the particular aspects or the extent of the excess. The third question dealt with section 2 of the Part C States (Laws) Act 1950, asking whether that section, or any of its provisions, was ultra vires the Parliament, and, again, seeking a precise description of the particular matters or the degree to which the provision might be beyond the Parliament’s power.

The reference letter explained the reasons for seeking the Court’s opinion. It noted that the Federal Court of India, in Jatindra Nath Gupta v. The Province of Bihar (1949-50) F.C.R. 595, had a majority holding that a 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 conferred on the Provincial Government the power to modify a provincial statute, thereby amounting to an impermissible delegation of legislative power. As a result of that decision, doubts were raised about 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 had been extended to Delhi, Ajmer-Merwara and various Part C States under those sections, and also concerning the orders and other instruments issued under the extended Acts. The letter further observed that the legitimacy of section 7 of the Delhi Laws Act 1912, section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947, and the Acts extended pursuant to those provisions were presently being challenged in several pending cases 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 provides that the Provincial Government may, by notification in the official Gazette, extend to the Province of Delhi or any part thereof, with such restrictions and modifications as it thinks fit, any enactment that was in force in any part of British India on the date of such notification. Section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947 states that 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 that was in force in any other Province on the date of such notification. Finally, Section 2 of the Part C States (Laws) Act 1950 declares that 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 that was in force in a Part A State on the date of the notification, and may provide in the extended enactment for the repeal or amendment of any corresponding law (other than a Central Act) applicable to that Part C State.

The provision under discussion authorized the Central Government to extend to a 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, and to do so with such restrictions and modifications as it thought appropriate. The provision also permitted that, in any enactment so extended, a clause could be included for the repeal or amendment of any corresponding law, other than a Central Act, that was then applicable to that Part C State. The Central Legislature that enacted these provisions possessed, at all relevant times, the constitutional authority to make laws directly for the territories concerned. Nevertheless, rather than using that authority itself, the Legislature chose to vest the power of extension in the Provincial Government with respect to the first provision, and in the Central Government with respect to the other provisions. The delegated power allowed the executive, by means of a notification in the official Gazette, to extend to the designated territories laws that had been enacted by various Provincial Legislatures throughout India, provided those territories fell within the executive’s jurisdiction. The essential characteristics of the authority that was therefore delegated to the executive can be summarised as follows. First, the laws that the executive could extend were not laws made by the delegating Central Legislature but were statutes enacted by different Provincial Legislatures for their own territories. Second, when extending such statutes, the executive was granted the discretion to impose any restrictions or modifications that it deemed necessary. Third, the statutes eligible for extension had to be in force at the moment the notification of extension was issued. Consequently, the executive could not only extend statutes that were already in force at the time the impugned provisions were passed—statutes that the Central Legislature might have examined and considered suitable for extension—but also statutes that might be enacted in the future by Provincial Legislatures, statutes about which the Central Legislature could have no opportunity to assess suitability. Fourth, the power given to the executive was not limited merely to extending statutes from other legislatures; it also included the authority to repeal or amend any corresponding law that was then in force within the designated territories. The central question that arose was whether the delegation of such extensive discretionary power—allowing the executive to select, modify, and even repeal laws made by other legislatures for application in the designated territories—was within the competence of the Central Legislature. The matter was referred to this Court following the decision in Jatindra Nath Gupta v. The Province of Bihar, where a majority of the Federal Court of India (Kania C.J., Mahajan and Mukher-jea JJ.) held that a proviso to sub-section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1937, which authorised the Provincial Government, subject to certain conditions, to extend the operation of the Act by notification for a further period, with or without modifications, amounted to an improper delegation of legislative power.

In the earlier decision the Court had held that the power to extend a law and the power to modify a law were distinct, and that the Provincial Government had merely extended the operation of the Act without making any alteration. Consequently, the proviso was treated as a valid exercise of conditional legislation. The Court also concluded, in agreement with the majority, that the detention of the petitioners in the earlier case was unlawful. However, the judgment was based on a narrower ground that does not bear on the issues presently before the Court, and the judge therefore chose to rest his decision on that limited basis rather than on the broader reasoning of the majority.

When the arguments were presented in the present matter, the judge found that he could not concur with the majority view expressed in the earlier case. The Attorney-General, appearing on behalf of the President, mounted a vigorous attack on that majority opinion. He asserted that the view was contrary to sound constitutional principles and to the weight of existing authority. To support his contention, the Attorney-General referred to a large number of decisions of the Privy Council, as reported in the 1949-50 volume of the Federal Court Reports, as well as to cases decided by the courts of the United States, Australia and Canada. He also highlighted the opinions of various legal writers who argued that legislative power inherently includes the authority to delegate that power to other bodies, and that a legislature, while remaining within its own jurisdiction, may lawfully delegate the whole of its legislative authority to another person or institution, provided it does not entirely relinquish that authority.

The judge then observed that modern constitutional doctrine universally accepts that a legislature created by a written constitution must act within the limits set by that constitution, and that any law enacted in excess of those limits is void. He contrasted this position with the situation in England, where Parliament is sovereign, free of constitutional restraints, and capable of amending the constitution by ordinary legislative procedure; thus English statutes cannot be challenged on constitutional grounds. By contrast, at the relevant times of 1912, 1947 and 1950, when the statutes under review were enacted, India possessed a written constitution. Accordingly, it is the duty of the courts to ensure that Indian legislatures operate within the constitutional boundaries that created and restrict them. The appropriate method for determining constitutional validity, the judge concluded, is to examine the instrument that positively confers legislative powers and the instrument that negatively limits them. If the legislation falls within the general scope of the affirmative grant of power and does not breach any express restriction, it must be regarded as valid.

It was held that when a law does not breach any explicit condition or restriction that limits the legislative power – a category that would also cover any Act of the Imperial Parliament that conflicted with such a condition – no court of justice may examine the matter further or expand those conditions and restrictions by construction. The Court cited the decision in Empress v. Burah (1) (I.A. 178). Consequently, the Court was required to consider whether the delegation of authority contained in each of the challenged enactments was inconsistent with the spirit of the Constitution under which those enactments were passed. The relevant constitutions contain no provision that expressly authorises or expressly prohibits the delegation of legislative power. The Court therefore asked whether a prohibition against delegation could be inferred from the constitutional language, and if so, whether any such prohibition could be implied from those terms. Before analysing the specific constitutions, the Court referred to the two principal theories of constitutional law concerning delegated legislation. Although, as already explained, England itself does not face a question of constitutional validity for such legislation, similar issues have frequently arisen in British Commonwealth jurisdictions that possess written constitutions. In those jurisdictions, judges trained in the tradition of parliamentary omnipotence have formulated the doctrine that every legislature created by an Act of Parliament, while required to act within the subject-matter and territorial limits assigned to it, remains as supreme and sovereign as the Parliament that created it. Such legislatures are therefore not considered delegates of the Imperial Parliament, and the maxim delegatus non potest delegare does not apply to them. A delegation of legislative functions by such bodies, however extensive, may not be challenged as unconstitutional provided the legislature retains its own capacity. The Court noted that these principles were set out unequivocally in the leading case of Hodge v. Queen (1) decided by the Privy Council in 1883. In that case, the Privy Council upheld an enactment of a Canadian provincial legislature that had authorised a Board of Commissioners to make bylaws and municipal regulations governing taverns, to create offences and to attach penalties. The Lords observed that it had been argued that the Imperial Parliament had not conferred any authority on the local legislature to delegate those powers to the licence commissioners or any other persons, and that the power should be exercised solely by the legislature itself, invoking the maxim delegatus non potest delegare. The Lords concluded, however, that the objection was based on a complete misunderstanding of the true character and position of the provincial legislatures, which are in no sense delegates or agents of the Imperial Parliament.

In that decision, the Court explained that the British North America Act created for Ontario a provincial legislature whose assembly possessed exclusive authority to enact laws for the province on matters listed in section 92. The Act therefore gave the provincial legislature powers that were not to be exercised as a mere delegation from the Imperial Parliament or as its agents. Instead, the legislature received a full and ample authority, limited only by the subjects enumerated in section 92, which the Imperial Parliament could grant from its own plenary power. Within those subject-matter limits, the provincial legislature was described as supreme. The Court observed that counsel had argued that when a legislature assigned important regulatory functions to agents or delegates, it effectively erased its own authority. The Court rejected that argument, holding that the legislature retained its powers intact. The legislature could at any time abolish an agency it had created, replace it with another, or assume the function directly. Determining how far a legislature may rely on subordinate agencies and the duration of such delegations was held to be a matter for the legislature itself, not for the courts. This statement was identified as a clear articulation of the English doctrine of “supremacy within limits.” Under this doctrine, a subordinate legislature may exercise any power that the Imperial Parliament could exercise, provided it stays within the constitutional boundaries of its own legislative competence. No constitutional restriction on the power to delegate could be imported (1) 9 App. Cas. 117 131, on the strength of the maxim delegatus non potest delegare, because the provincial legislature was not a delegate. The quotation’s final words were emphasized as significant, reinforcing that the inquiry before a court must be confined to whether the legislature acted within its legislative authority, as also noted in Burah’s case(1). The remarks about “authority ancillary to legislation” and “abundance of precedents for this legislation entrusting a limited discretionary authority to others” were understood to refer to the specific facts of the case concerning tavern licensing, and were not intended to diminish the broad principles previously laid down. The same doctrine was affirmed in Powell v. Apollo Candle Co. Ltd.(2), where, after citing Burah’s case(1) and Hodge’s case(3), the judges declared that those cases ended the older view that a colonial legislature was a delegate of the Imperial Legislature. They described a colonial legislature as restricted in the scope of its powers but unrestricted within that scope, and not acting as an agent or a delegate. An objection that the legislature of New South Wales alone had power to impose the tax in question and could not delegate that power to the

In response to the contention that the Governor’s duties imposed by an Order in Council were essentially powers derived from the authorising Act, counsel explained that those duties were indeed exercised under the authority granted by the Act that created the order. He further asserted that the legislature had not relinquished its complete control over the Governor, and that it retained the power to withdraw or modify the authority that it had conferred upon him at any time (4). The discussion then turned to earlier authorities. It was observed that the case of Hodge (3) did not involve a wide-ranged delegation of legislative power, whereas the case of Shannon (5) did involve such extensive delegation. The relevant citations were set out as follows: (1) 5 I.A. 178; (4) 10 App. Cas. 282, 291; (2) 10 App. Cas. 282; (5) [1938] A.C. 708; (3) 9 App. Cas. 117. The court then considered a Canadian provincial statute, a compulsory Marketing Act that provided for the establishment of Marketing Boards but left to the Government the discretion to determine the powers and functions of those Boards. Critics argued that the legislation 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 (1) – which questioned a provincial legislature’s capacity to “create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence.” The objection, however, was promptly rejected without the need for Government counsel to answer. The Lords reiterated the English doctrine of “plenary powers of delegation within constitutional limits,” describing the objection as subversive of the rights that the provincial legislature enjoys when dealing with subjects within the constitutional grant of legislative powers. They affirmed that, within its assigned sphere, the provincial legislature is supreme, comparable to any other parliament. The court noted that Martin C.J. had already addressed this objection satisfactorily in his judgment on the reference and saw no reason to add further commentary.

Martin C.J.’s observations were recorded in Re Natural Products Marketing (B.C.) Act (2). He stated that he would not elaborate at length on the subject of delegation of legislative powers because, employing the language of the Privy Council in Queen v. Burah (3), “The British Statute book abounds with examples of it.” He explained that a careful examination of both early and recent statutes would reveal a surprisingly large number of delegations to various persons and bodies across a wide range of subject matters, a task that would require several pages merely to list. Moreover, attempting to invalidate these delegations would cause a constitutional crisis. Consequently, he limited his discussion to four representative statutes. Among the statutes he cited, one conferred “carte blanche” powers over affected fruit-land areas, demonstrating the breadth of delegation that courts have historically tolerated. This approach underscored the principle that extensive delegations, when properly grounded in enabling legislation, are constitutionally permissible.

In the judgment the Court observed that, among the statutes cited by the learned judge, one granted unfettered authority to deal with a pest, while another vested in the Lieutenant-Governor in Council the power to make rules of the widest possible scope. The Court noted that this latter statute was of particular significance because it exemplified a situation in which the entire civil judicial system—including both appellate and trial procedures—was regulated and constituted to such an extensive degree that even the very sittings of the courts were subject to those delegated rules. The Court considered the recent decision of the Privy Council on the English perspective of the delegability of legislative power to be especially noteworthy for several reasons. First, the case involved a delegation of legislative authority of such breadth that counsel argued the limit of permissible delegation had been reached, thereby raising directly the constitutional question of whether surrender or abdication of legislative power was valid, and invoking Lord Haldane’s remark in the Referendum case. Second, the objection raised was deemed so plainly untenable that the Government counsel was not required to answer, the judges regarding the objection as contrary to well-established constitutional principles. Third, the examples of “carte blanche delegation” identified by Martin C.J. were accepted and were said to have disposed of the objection very satisfactorily. Fourth, the Court explained that what was needed to defeat the objection was a straightforward statement of the English doctrine: within its constitutional sphere the provincial legislature is as supreme as any other parliament, and because there can be no legal limit to Parliament’s power to delegate, there can likewise be no limit to a provincial legislature’s power to delegate legislative authority to others. Accordingly, the English approach characterises delegation not as a relinquishment of legislative power but as a revocable entrustment to an appointed agent, whose act derives its validity from the delegating statute. In contrast, the Court described the American courts’ approach as fundamentally different, rooted in eighteenth-century political philosophy that warned against concentration of powers and therefore embraced a strict separation of legislative, executive and judicial functions, leading to a traditional doctrine that legislative power could not be delegated.

In American constitutional law, the idea that a legislative power could not be transferred from one department to another was supported by the longstanding private-law maxim “delegatuts non potest delegare”, which quickly became a traditional doctrinal rule. Yet, as the nation rapidly industrialised and its administration grew more complex, American judges recognised that large-scale delegation of legislative authority to administrative bodies was unavoidable, and that refusing such delegation would effectively “stop the wheels of government”. Consequently, U.S. judicial decisions on delegation have often been characterised by efforts to conceal the delegation through “veiling words” or by “softening it by a quasi-…”, as Justice Holmes observed in Springer v. Government of the Phillipine Islands (1). A recent commentator summed up this development with Professor Cushman’s syllogism: the major premise states that Congress cannot constitutionally delegate legislative power; the minor premise asserts that certain powers must be delegated to administrative officers and regulatory commissions; therefore, the conclusion is that the powers so delegated are not legislative but “administrative” or “quasi-legislative”, a view quoted from Bernard Schwartz’s American Administrative Law, p. 20. After considerable confusion and shifting opinions about which powers are essentially legislative and thus non-delegable, and which are merely administrative or ancillary and therefore delegable, recent Supreme Court rulings appear to draw a line between the enactment of a policy or standard concerning the subject matter and the subsequent implementation and enforcement of that policy through rules and regulations. This line is illustrated in cases such as Schechter Poultry Corp. v. United States (2) and Panama Refining Co. v. Ryan (3), although applying the test often leads to divergent judicial conclusions depending on the facts of each case. The Court then identified the questions before it. The first issue concerned the constitutional validity of section 7 of the Delhi Laws Act, 1912, and had to be determined with reference to the competence of “the legislature which (1) 277 U.S. 189. (3) 293 U.S. 388. (2) 295 U.S. 495. passed the said Act”, that is, with reference to the constitution then in force. The Court noted that both the Delhi Laws Act, 1912 and the AjmerMerwara (Extension of Laws) Act, 1947—relevant 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 those Acts continued in force, creating a need to determine the constitutional validity of those now-repealed provisions. Finally, the Court observed that in 1912 the legislative authority in India was vested in the Governor-General in Council, whose law-making power derived from section 22 of the Indian Councils Act, 1861.

The legislation referred to in chapters twenty-four and twenty-five of the Victorian Charter, chapter seven, conferred upon the Governor-General in Council a very broad authority. The authority allowed the Governor-General to make laws and regulations for repealing, amending or altering any law or regulation that was then in force or that might later be in force within the Indian territories that were then under the dominion of Her Majesty. The same provision also gave power to make laws and regulations affecting all persons, whether British, native, foreign or otherwise, all courts of justice of any kind, and all places and things within those territories. This power was subject only to certain conditions and restrictions, none of which interfered with the provisions that were being challenged in the present case.

Subsequent legislation, namely the Councils Acts of 1892 and 1909, altered the composition and certain other powers of the Governor-General in Council. Nevertheless, the essential law-making power of the Governor-General remained substantially the same as it had been in 1912. Because of this continuity, the Court was asked to consider whether section seven of the Delhi Laws Act, 1912 fell within the scope of the legislative authority that had been granted to the Governor-General by section twenty-two of the Indian Councils Act, 1861.

The language of section twenty-two describes the power in extremely wide terms, authorising legislation “for all persons … and for all places and things whatever” within the Indian territories. Consequently, the question of whether the Governor-General acted within his competence reduced to determining whether section seven of the Delhi Laws Act qualified as a “law” within the meaning of section twenty-two of the 1861 Act. The Court believed that this question had already been settled by the Privy Council in the case known as Empress v. Burah, reported in volume five of the Indian Appeals at page 178.

In Empress v. Burah, the Government appealed a decision of the majority of a full bench of the Calcutta High Court. That lower court had held that sections eight and nine of Act XXII of 1869 were ultra vires the Governor-General in Council because they represented an unauthorized delegation of legislative power to the Lieutenant-Governor of Bengal. The effect of those sections was to permit the Lieutenant-Governor, by publishing a notice in the Calcutta Gazette, to extend to certain districts “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.”

Justice Markby, delivering the leading judgment of the majority, held two main points. First, he concluded that section nine effected an impermissible delegation of legislative authority to the Lieutenant-Governor, because the Indian Legislature, acting as a delegate of the Imperial Parliament, could not further delegate that authority to another officer. Second, he asserted that the Indian Legislature could not alter the legislative machinery in India without affecting the provisions of the Acts of Parliament that created that machinery; if it did so, then, by unanimous consent, its Acts would be void. The Judge also cited the argument presented by counsel for the Government, which said that when Parliament gave a legislature a general power to make laws, the only issue to resolve was whether the disputed enactment was a law. If it was a law, then it was valid unless it fell within a specific prohibition.

The judgment observed that the counsel’s contention that the argument was “sound” could not be accepted, because the Court held that the purpose of the relevant provision was to confine the Legislative Council to functions that are genuinely legislative, namely the enactment of statutes, which, in Blackstone’s terms, are rules of conduct imposed by a superior upon an inferior or laws enacted to give effect to such rules. The Court further explained that unlike the English Parliament, which is not limited in this manner and functions as a supreme sovereign body, the Legislative Council does not create law when it simply authorises another individual or body to legislate; such an act does not fall within the meaning of the law-making authority granted by the Act from which the Council derives its power (1). The learned Judge also dismissed the submission that previous legislative practice supported the Council’s action, noting that the examples cited were not “clear and undisputed instances of a transfer of legislative authority.” In dissent, Garth C.J. observed that the Act of 1833 conferred legislative powers on the Governor-General in Council in language and to the same effect as those later granted by the Councils Act of 1861, and that since the passage of the 1861 Act the Governor-General in Council had habitually exercised those powers through senior officials and public bodies, to whom considerable discretion had been vested (2). He argued that it could not be presumed that the Imperial Parliament would have reinstated in the Councils Act of 1861 the legislative powers already exercised by the Governor-General in Council if it had disapproved of the Legislature’s practice. Moreover, the fact that Parliament, aware of the surrounding circumstances, chose to renew in the 1861 Act the powers originally given by the 1833 Act amounted to a statutory recognition that the Legislature’s use of those powers was authorized by the statute (3). Consequently, the learned Chief Justice concluded that Act XXII of 1869 constituted a valid law that “the legislature was justified in passing.” The author of the opinion noted that a detailed discussion of the High Court judges’ reasoning would aid in grasping the full significance of the Privy Council’s decision. It was observed that the approach taken by Government counsel in the High Court, as recorded in I.L.R. 3 Cal. 63 at pages 90-91, was endorsed by the Privy Council as the appropriate method for resolving the issue. That method requires the court to determine whether the action taken falls within the legislative scope conferred by the affirmative words of the empowering provision and, provided that no explicit condition limiting that power is breached, the court should not expand those conditions by interpretation.

The Court explained that the quoted passage, which reads “is not for any court to inquire further or to enlarge constructively those conditions and restrictions” (italics mine), establishes two fundamental limits on judicial review in cases of legislative enactments. First, the Court may only determine whether the challenged enactment falls within the law-making authority that the legislature possesses and whether it breaches any expressly stated condition that confines that authority. Second, in assessing a possible breach, the Court must look solely at conditions that are expressly articulated; it must not expand those conditions by inference or through interpretative construction. The Court further rejected the doctrine, also dismissed in Hodge’s case, that the Indian Legislature functions as an agent or delegate of the Imperial Parliament, a position that would subject it to the rule against delegation by an agent. Moreover, the Court disavowed the distinction drawn by Markby J., which held that Parliament is free to make a “law” delegating its legislative power while the Indian Legislature is limited to the making of laws as defined by Blackstone and therefore could not enact such delegating statutes. The Court affirmed that the English doctrine of supremacy within limits applies equally to the Indian Legislature, which, when it acts within the boundaries of its conferred legislative power, possesses plenary powers of the same magnitude and nature as those of Parliament itself. Consequently, the Indian Legislature is competent, both in quantity and quality, to enact a law that delegates legislative power, provided it remains within the prescribed limits.

The Court also agreed that the Governor-General in Council could not, by any form of enactment, create in India a new legislative power that was not already established or authorised by the Councils Act. The Court observed that no such creation of a new legislative authority had been attempted in the present case. Counsel for the opposite party argued that the remark concerning the Governor-General in Council’s inability to create a new legislative power pertained to the subordinate agency or instrumentality to which the legislative authority would be delegated, thereby denying the legislature’s right to delegate. However, the surrounding context clarified that the Court’s statement was an endorsement of Markby J.’s view 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, that is, a

The Court explained that the impugned legislation did not create a new legislature comparable to the Central and Provincial Legislatures that existed in the country. While the Court agreed that establishing such a legislature would violate the Act of Parliament because that Act does not empower the creation of additional legislatures, it held that the impugned Act did not attempt to do so and that the reasoning of Markby J. was therefore mistaken. The Court gave two reasons for this conclusion. Firstly, it stated that it is a mistake to describe the powers conferred on the Lieutenant-Governor, however extensive they may be, as if the effectiveness of the actions taken under those powers depended on any legislative authority other than the Governor-General in Council. The entire operation, the Court said, proceeds directly and immediately under, and by virtue of, the Act No. XXII of 1869 itself.

The Court then turned to the fundamental distinction between delegated legislation and the creation of a new legislative body. It observed that it is a common error to treat delegated legislation as having the same constitutional character and consequences as the establishment of an independent legislature, and that this error accounts for much confusion on the subject. The Court recalled that in Hodge’s case(1) it was clarified that when a legislature delegates its power, it does not destroy its own authority; rather, it retains its full legislative power and simply chooses an agency or instrumentality through which to exercise that power. The delegating legislature remains free to later abolish the agency it created, to establish a different one, or to exercise the power itself. In Burah’s case(2) the Court had emphatically affirmed that any act performed by the delegate derives its entire force and effect from the delegating legislature, meaning that the legislature effectively acts through its appointed instrumentality. By contrast, the creation of a new legislative body with its own general legislative authority involves granting power to an independent, co-ordinate entity that can make laws of its own force, not merely delegating power to a subordinate. Under English constitutional law, the first scenario does not require an express provision authorising delegation; any delegation is permissible provided the delegating body retains its legislative power. The second scenario, however, requires a positive enabling provision in the constitutional document. The Court noted a second reason for rejecting the majority view, observing that Act XXII of 1869 was, in

In this case the Court observed that the enactment in question was, in truth, nothing more than conditional legislation, citing (1) 9 App. Cas. 117 and (2) 5 I.A. 178, and emphasized that there was no delegation of legislative power. Their Lordships held that neither the determination of the commencement date of the Act nor the expansion of the area to which it applied constituted an “act of legislation” by the Lieutenant Governor. They explained that the proper legislature had exercised its judgment concerning the place, the persons, the laws and the powers, and that the result of that judgment was to legislate conditionally with respect to all of those matters. Once the prescribed conditions were satisfied, the legislation became absolute. The Court further stated that where plenary legislative powers exist over particular subjects—whether in an Imperial or a Provincial Legislature—such powers may be exercised either absolutely or conditionally. They noted that legislation conditional upon the use of certain powers or upon the exercise of a limited discretion entrusted to persons in whom the legislature places confidence is not uncommon and is often highly convenient. The British statute book, they observed, is replete with examples of such conditional legislation, and it cannot be assumed that the Imperial Parliament, when constituting the Indian Legislature, failed to contemplate this form of legislation within the scope of the powers it periodically conferred, especially since no words were used to exclude it. Their Lordships also referred to the legislative practice in this country of delegating to the executive government a discretionary power to extend enactments to new territories, subject in certain cases to “restriction, limitation or proviso” deemed appropriate by the Government, and approved the reasoning of Garth C.J. on that practice. They warned that adopting the majority view of the High Court without any distinction beyond the competence of the judicial forum would cast doubt on the validity of a long course of legislation tailored, as far as they could judge, to the peculiar circumstances of India. For such doubt, they found no foundation in either the affirmative or the negative words of the Indian Councils Act, 1861. The Court further clarified, in a parenthetic remark, that it is not competent for the Court to discriminate between degrees of delegation—whether extensive or slight—and that the validity of such delegation must be founded on the explicit wording of the Constitution Act. This reasoning reflects a broader British theory of delegation, as also considered in the Canadian case concerning the status of orders made by the Governor in Council under delegated parliamentary authority.

In the case under discussion, the Court examined whether an order issued by the Governor in Council could be regarded as a law enacted after the enactment of the Statute of Westminster. The authority to delegate power to the Governor had been granted prior to the passage of that Statute, but the actual order was issued only after the Statute had become effective. The Court held that the order should be treated as a “law” that was made by the Parliament of Canada after the Statute of Westminster came into force. In reaching this conclusion, the Court observed that a law embodied in an order or regulation is created at the moment when the power vested by the Dominion’s Parliament is exercised. The Court explained that the Parliament of the Dominion remains the sole legislative authority for the whole Dominion, and it may choose to enact law through the administrative machinery that it has established for that purpose. The Governor-in-Council, therefore, does not possess an independent status as a law-making body. The legislative activity of the Parliament continues to be represented at the time the orders are issued, and those orders are consequently “law.” In the Court’s view, the orders are law made by the Parliament on the date they are promulgated.

Mr. Chatterjee argued that the decision in Burah’s case (see reference (3) S.I.A. 178) merely held that the type of legislation described by the Court there as “conditional legislation” fell within the competence of the Indian legislature and was therefore valid. He contended that the reasoning employed by the Court in upholding that conditional legislation had no relevance for assessing the validity of the provisions challenged in the present case. While it is correct that the legislation contested here does not belong to the conditional category—because the operation of the impugned Acts does not depend on the exercise of discretion by an external authority—it is inaccurate to say that Burah’s case applies only to facts involving conditional legislation. As the Court endeavoured to demonstrate, Burah’s case establishes general principles of wide significance. Those principles were cited in Powell’s case (reference (2)) as an example of “laying down the general law” and as a means of “ending the false doctrine that a subordinate legislature acts as an agent or a delegate.”

Mr. Chatterjee further relied on a statement made by Lord Haldane in the Referendum case (reference (3)). In that case, the Court held that the Initiative and Referendum Act of Manitoba was ultra vires the Provincial Legislature because it required the Lieutenant-Governor to present a proposed law to a body of voters that was completely separate from the legislature over which the Lieutenant-Governor served as constitutional head. The Act effectively stripped the Lieutenant-Governor of the power to prevent the proposed law from becoming effective if it received voter approval, and this exceeded the authority of the Provincial Legislature under the British North America Act, 1867. The power to amend the province’s Constitution, as conferred on the Provincial Legislature, specifically excluded “the office of the Lieutenant-Governor.” Lord Haldane, however, added further observations concerning the scope of Section 92 of the 1867 Act.

The Court observed that the Constitution Act of 1867 assigned the legislative authority in a province solely to that province’s legislature and to no other body. It was clear that a body whose legislative power over the subjects assigned to it was as extensive as that possessed by a Canadian provincial legislature could, while preserving its own inherent capacity, obtain assistance from subordinate agencies. An illustration of this principle was found in Hodge v. The Queen, where the Ontario Legislature was held to have the right to delegate authority to a Board of Commissioners to make regulations concerning taverns. However, the Court emphasized that such delegation did not permit the legislature to create and endow a new legislative power that was not provided for by the Act that created the legislature itself. The Lords merely highlighted the seriousness of the constitutional questions that could arise from such a situation. Counsel for the petitioner argued that the grave constitutional issue identified by Lord Haldane in the Manitoba Referendum case was applicable to the present matter. The Court disagreed, holding that the dictum, like the observation of Lord Selborne in Burah’s case concerning the Governor-General in Council’s power to create in India and arm with general legislative authority a new legislative power, was directed at the unauthorised creation of a new legislature with an independent law-making status. That notion, the Court noted, is fundamentally different from the permissible delegation of legislative power, and the remarks previously made in connection with that observation were equally relevant to the present case.

The Court also referred to the Privy Council decision in King Emperor v. Benoari Lal Sarma. That case arose from an appeal against a judgment of the majority of the Federal Court of India, reported in [1943] F.C.R. 96, which held, among other points, 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 basis of that decision was that, although section 26 of the Ordinance formally removed the jurisdiction of the High Court, in substance the jurisdiction was taken away by the order of the executive officer who, under sections 5, 10 and 16, was left to decide which offences or classes of offences and which cases or classes of cases should be tried by the special courts created under the Ordinance. Insofar as those sections sought to grant the executive officers absolute and unfettered discretion without any legislative provision or policy direction specifying the conditions under which that discretion could be exercised, the Court held that such power was beyond the competence of the Governor-General. Justice Varadachariar C.J., with which Justice Zafrulla Khan concurred, examined in detail the entire issue of delegation of legislative powers, and while acknowledging the relevant Privy Council authorities, reiterated the principle that the legislature may not delegate the power to create law itself, but may delegate only the authority to implement or enforce law within the bounds set by the legislature.

In his discussion, the learned Chief Justice acknowledged, based on the Privy Council decisions previously cited, that the Governor-General possessed legislative authority in emergencies that was equal to that of the Indian Legislature. Consequently, he held that the Governor-General could not be treated as a delegate of the Imperial Parliament and that the maxim “delegatus non potest delegare” therefore did not apply to the Governor-General’s powers. Nevertheless, he expressed the view that none of the Privy Council judgments conflicted with the principle drawn from an American authority that the Advocate-General of India had proposed to rely upon. The principle, as quoted, states: “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.” This wording is attributed to Judge Ranney of the Supreme Court of Ohio, a passage frequently referenced in American case law.

Following this, the Chief Justice turned to an examination of American case law on the delegation of powers and to the scholarly commentary on administrative law. He concluded that, although the considerations and safeguards mentioned in earlier passages might amount only to matters of policy or expediency under the English Constitution, they become essential limitations under constitutions such as the Indian and the American, where the validity of legislation can be reviewed by the courts. He observed that in the present matter the authority that created the Ordinance had entirely avoided any duty to prescribe rules, conditions, or even a policy indicating which offences should be tried by ordinary criminal courts and which should be assigned to the special courts created by the Ordinance. Instead, the Ordinance left the entire allocation to the unchecked and uncontrolled discretion of executive officials. The Chief Justice stressed that this observation was not a critique of the policy itself, as counsel for the Crown might suggest, but a criticism that the law failed to lay down any guiding principle or policy to regulate the undefined powers conferred on the executive by sections 5, 10 and 16 of the Ordinance. He recorded his reasoning at length because it encapsulated and endorsed much of the argument presented by counsel for the petitioner, who contended that the American rule on legislative delegation should prevail in India over the opinions of English judges, and that an overly broad and uncontrolled delegation must be declared invalid. The Privy Council, however, rejected this line of reasoning.

The Court dismissed the reasoning and conclusion advanced by the majority of the judges in a clear and emphatic pronouncement. Their Lordships rejected the suggestion that considerations of policy or expediency, which might be permissible under the British Constitution, could in India – as in America – be transformed into constitutional limitations on the delegation of legislative responsibility merely because the constitutionality of legislation was subject to judicial review under the Constitution of this country. They explained that the determination of whether the Ordinance was intra vires or ultra vires did not depend on jurisprudential or policy considerations; rather, it required a straightforward examination of the language of the Government of India Act and a comparison of the legislative authority conferred on the Governor-General with the provisions of the ordinance that he purports to exercise. 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 comparing the legislative authority conferred on the Governor-General with the provisions of the ordinance by which he is purporting to exercise that authority” – that is, the old traditional approach. They further observed that, as a matter of prudent legislation, it might be wise, if circumstances permit, to draft a statute so that an offender knows in advance which court will try him for a given crime; however, that is a question of policy, not of law. The Court stated that there is nothing in the Indian Constitution that would render invalid any statute, whether enacted by the Central Legislature or promulgated under the Governor-General’s emergency powers, which fails to conform to this principle. Moreover, there is no doubt that the Parliament of Westminster could validly legislate that the choice of courts should rest with an executive authority, and the Court could find no valid reason why the same discretion should not be conferred in India upon the law-making authority, whether that authority is the Legislature or the Governor-General, as an exercise of the discretion authorised to make laws for the peace, order and good government of India. The English doctrine of supremacy within limits was thus reaffirmed, and its corollary applied as the decisive test: “What the British Parliament could do, the Indian legislature and the Governor-General legislating within their appointed sphere could also do.” The decision acknowledged a delegation of an “unguided and uncontrolled” discretionary power affecting the liberty of the subject. In the language of an American judge, it was “unconfined and vagrant” and not “canalised within banks that kept it from over-flowing” (per Cardozo J. in Panama Refining Co. v. Ryan). Nevertheless, the delegation was upheld because the Court could not locate any constitutional limitation that would prohibit it. The judgment also contained a passage, when taken out of context, that might seem at first glance to accept the maxim “delegatus non potest delegare” as a principle of English constitutional law, despite its consistent repudiation by the same tribunal in earlier decisions.

In this portion of the judgment the Court observed that counsel Mr Chatterjee had promptly cited the American case reported at 293 U.S. 388, thereby turning to an American perspective. The Court stated that it did not believe the passage quoted by the learned counsel introduced any revolutionary principle. The passage quoted 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” (italics added). The Court explained that this statement had been made in response to the second objection raised, namely that section 1(3) of the Ordinance amounted to delegated legislation whereby the Governor-General, without legal authority, attempted to delegate the decision as to whether an emergency existed to the Provincial Government instead of deciding it himself. The Court then recited the opening words of section 72 of Schedule IX of the Government of India Act, which provide: “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.” Accordingly, the ordinance in question was enacted expressly under this special emergency power. The argument advanced was that the very source of this ordinance-making power required the Governor-General to exercise personal judgment and discretion, and that such discretion could not be delegated to the Provincial Government or its officers. The Court accepted this principal contention but observed that no delegation of the Governor-General’s legislative power had actually occurred; the action was described merely as conditional legislation. Referring to the special emergency ordinance power, the Court reiterated that the Governor-General must personally exercise that power and may not transfer it to other authorities. The expressions “acting under section 72 of Schedule IX” and “there, cast on him” clarified the meaning, and the passage cited by counsel did not support his broader claim that legislative power could not be delegated in general. After considering the authorities previously discussed and following the same line of reasoning, the Court held that section 7 of the Delhi Laws Act, 1912, fell within the affirmative words of section 22 of the Indian Councils Act, 1861, which vested law-making authority in the Governor-General in Council, and that the provision did not breach any negative restrictions on that power. Applying the same approach, the Court concluded that section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, was likewise constitutional and valid. That Act had been enacted by the Dominion Legislature of India, with its constitutional basis in section 99(1) of the Government of India Act, 1935. The Indian Independence Act, 1947, had authorised the removal of certain limitations on the law-making powers of the Central Legislature, and section 108 of the Constitution Act had been omitted, but the material

The Court observed that the wording in section 99(1) of the Government of India Act, 1935, which conferred legislative authority, had remained unchanged and read “may make laws for the whole or any part of the Dominion.” It noted that, although the Dominion and the Provinces allocated legislative competencies according to the Lists contained in Schedule VII, this allocation did not diminish the Dominion Legislature’s authority to enact statutes for territories designated as Chief Commissioners’ Provinces, including Ajmer-Merwara. The relationship between those provisions was clarified by the Court through reference to section 100(4) read together with section 46, which expressly affirmed the Dominion’s power to legislate for such provinces. Consequently, the Court held that section 2 of the impugned Ajmer-Merwara (Extension of Laws) Act, 1947, constituted a “law” within the competence of the Dominion Legislature and therefore was validly enacted. The Court further explained that the restrictive phrase “subject to the provisions of this Act” did not apply, because no provision was identified that would impinge upon the validity of the law in question. A discussion then arose concerning the meaning of the terms “restrictions” and “modifications” as used in the contested provisions. Counsel for the petitioner argued that those words would empower the executive authority to alter or amend any law applied to the territories, and that delegating such undefined power to the executive was constitutionally invalid.

In contrast, the Attorney-General submitted that “modification” ordinarily signified a change that did not alter the essential character of the subject matter, and that this ordinary meaning did not affect the question of delegability. He cited the Privy Council’s observation in Burah’s case, where the Council held that a power granted to a local government by Act XXIII of 1861 to extend the Civil Procedure Code of 1859 “subject to any restriction, limitation or proviso” was not improper. The Court expressed the view that, irrespective of how broadly the expression might be interpreted, it did not prejudice the constitutionality of the delegating statute because neither the 1861 Indian Councils Act nor the 1935 Government of India Act contained a constitutional bar on delegating legislative power to subordinate units. The Court further noted that this reasoning explained why the Privy Council had attached little significance to the wording in section 39 of Act XXIII of 1861, which had been the subject of earlier contention. Turning to section 2 of the Part C States (Laws) Act, 1950, the Court observed that it was drafted on the same pattern as the earlier impugned provisions but included an additional clause permitting the repeal or amendment of any corresponding law, other than a Central Act, then in force in the State. The Court stated that this extra clause did not require further analysis because, in the absence of any constitutional prohibition against delegating legislative authority under the present Constitution, such delegation could lawfully extend to powers of repeal as well as modification, and therefore could not be held ultra vires.

The Court observed that the constitutional validity of the additional clause hinged entirely on the validity of the first part of the section. Consequently, the only issue to be resolved was the position of delegated legislation under the present Constitution. The Court noted that it could not rely on Privy Council decisions in the manner that had been possible in earlier cases such as Burah’s case (1) on the Indian Councils Act, 1861, Benoari Lal (1) 5 I.A. 178, and Sarma’s case (1) on the Government of India Act, 1935. Nevertheless, the Court held that the approach set out in those decisions and in numerous other authorities should be followed, not because those decisions were binding, but because they represented the correct method for addressing this type of problem. The Court further pointed out that English and American jurisprudence were in agreement on the matter. In both jurisdictions, the proper method of resolution was to examine the wording of the constitutional instrument, determine whether the impugned enactment fell within the scope of the law-making authority granted to the legislature that enacted it, and then assess whether the enactment infringed any constitutional restrictions or limitations on that authority. If the enactment satisfied this two-fold test, the Court said, it had to be held constitutional. Accordingly, the Court turned to the Constitution itself and found that article 245 conferred on Parliament the power to make laws in terms that were substantially the same as those in the earlier statutes previously considered. Article 245 declares, “subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India ….”

The Court then examined article 246, which sets out the distribution of legislative powers between Parliament and the State legislatures listed in Part A and Part B of the First Schedule. The Court explained that article 246(4), mirroring section 100(4) of the Government of India Act, 1935, empowers Parliament to legislate on any matter concerning any part of the territory of India that is not included in Part A or Part B, even if that matter is enumerated in the State List. This scheme, the Court observed, is essentially the same as the scheme that existed under the Indian Councils Act, 1861, and the Government of India Act, 1935, insofar as the language conferring law-making power is concerned. The Court then asked whether the impugned enactment – which merely purports 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 Court concluded that there is no doubt that the Act was passed by Parliament in accordance with the prescribed legislative procedure and therefore must be regarded as a law. No reason was found to treat the delegation as ultra vires, and consequently the additional clause was upheld as constitutionally valid.

The Court recalled that the narrow construction applied by Markby J. to the term in section 22 of the Indian Councils Act, which was based on Blackstone’s definition of a “binding rule of conduct for the subject,” had been rejected by the Privy Council in the Burah case. The Court further observed that even if a simple delegation of legislative authority were not classified as a “law … with respect to” any of the matters enumerated in the three constitutional Lists, such a delegation would nonetheless constitute a law made under the residuary powers granted by article 248. The next issue the Court considered was whether any provision of the Constitution prohibited the enactment of such a law. It noted that the principal constraints on the legislative competence of Parliament or the States arise from Part III of the Constitution, which secures Fundamental Rights. No specific provision in Part III or elsewhere was identified that expressly forbids, or has the practical effect of forbidding, a statute that delegates legislative power to a subordinate agency chosen by Parliament. The counsel for the petitioner, Mr Chatterjee, had vigorously argued that, in view of the Preamble—whereby the people of India, exercising their sovereign right, resolved “to adopt, enact and to give to themselves the Constitution”—the Parliament, entrusted with the responsibility of legislating for the Union’s territories, should be regarded, similarly to the American Constitution, as a delegate of the people. He contended that this underlying principle, akin to that of the American model, invokes the maxim delegatus non potest delegare and therefore creates an implied prohibition against the Parliament, or any legislature, delegating its legislative authority. The Court acknowledged that, in a broad sense, the people have conferred upon the legislative, executive and judicial branches of the State their respective powers while reserving to themselves the paramount right that the State may not enact any law that diminishes or abridges the rights guaranteed in Part III. To that extent, the Indian Constitution reflects aspects of the American model; however, the Court emphasized that this similarity does not render the American doctrine of separation of powers, as interpreted by American courts, a fundamental feature of the Indian Constitution, nor does it transform Indian legislatures into mere delegates of the people such that the maxim delegatus non potest delegare would acquire constitutional force. The Court further observed that the historical and political circumstances that shaped the American Constitution were absent in India, and beyond establishing the three organs of State to perform their respective functions—a common feature of modern civilized governments—there is no indication that the framers of the Indian Constitution intended to adopt the American doctrine of an absolute separation of legislative, executive and judicial powers.

The Court observed that the framers of the Indian Constitution did not import the American doctrine of separation of powers, which holds that liberty depends on an absolute separation and vesting of governmental functions in distinct hands. Instead, the Constitution, by providing for a Council of Ministers to aid and advise the President and by making that Council collectively responsible to the House of the People, followed the British model and created a fusion of legislative and executive authority. This arrangement negated any clear-cut division of government into three separate branches, a feature that is fundamental to American constitutional law. Because the Constitution does not embed such a doctrine, the maxim “delegatus non potest delegare” lacks constitutional force in India; it remains merely a political principle applicable to legislatures acting in a democratic polity, but it cannot be enforced by the courts as a rule of constitutional law when a legislative function is avoided or evaded. The Court contrasted this with the situation in the United States, where the maxim has been given effect through judicial construction and is an integral corollary of the constitutional separation of powers. In India, by contrast, the courts cannot strike down a parliamentary enactment on the ground that Parliament has, in a particular instance, entrusted its legislative power to another body or instrumentality, even if that entrustment appears to run counter to democratic ideals. What may be politically undesirable, the Court held, is nonetheless constitutionally permissible.

The Court further considered the argument advanced by counsel that an implied prohibition against delegation could be read from article 357 (1)(a), which expressly permits the President to delegate law-making powers conferred on him by Parliament in the event of a failure of constitutional machinery in a State. Counsel contended that because the Constitution made a specific provision for delegation in that limited circumstance, the absence of any similar provision elsewhere signified that delegation of legislative powers was not permissible in other situations. The Court rejected this line of reasoning, stating that the existence of a special provision for an extraordinary and rare occurrence does not logically lead to the inference that the Constitution intends to bar delegation in all other cases. The principle that the expression of one thing excludes another (expressio unius est exclusio alterius) is not of universal application, and it would be inconceivable that the Constitution’s framers intended to deprive Indian legislatures of a power that has long been recognized as a desirable, even necessary, aspect of modern legislative activity. Accordingly, the Court concluded that the presence of an express delegation clause in a remote contingency cannot serve as a basis for a general prohibition against legislative delegation.

The Court observed that the framers of the Constitution could not have intended to deprive the Indian legislatures of a power that has long been regarded as desirable and, in many jurisdictions, as a necessary element of modern legislative activity. It noted that the United States, although it originally embraced a rule against delegation as a natural consequence of the constitutional doctrine of separation of powers, has gradually moved away from that rule and now permits considerable delegation. Likewise, English constitutional law, even for subordinate legislatures, has allowed a wide scope for delegating legislative authority provided that the delegating body retains its own law-making capacity. In this context, the Court found that a single provision allowing delegation only in an exceptional circumstance is an insufficient basis for inferring a blanket prohibition on delegation of legislative power in all other situations. The Court then recalled Lord Selborne’s remark in Burah’s case, that the only test for constitutional validity of an enactment is whether it “violates no express condition or restriction by which the law-making power conferred on the legislature is limited, and that it is not for the court to enlarge constructively those conditions and restrictions.” The Court further cited a 1944 decision of the Privy Council, as discussed in Benoari Lal Sharma’s case, which reaffirmed the established English constitutional principle that the Indian legislature may delegate its legislative powers to the same extent as the British Parliament. The Court concluded that it would be unreasonable for the framers of the Indian Constitution, in the present day, to disregard the worldwide legislative experience and to deny Parliament a power that its predecessors unquestionably possessed.

Accordingly, the Court rejected the argument that the provisions in question were unconstitutional. It held 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 fully constitutional and valid. The judgment was delivered by Justice Mahajan, exercising the authority conferred by clause (1) of Article 143 of the Constitution. The President of India had referred several questions to the Court for opinion: (1) whether Section 7 of the Delhi Laws Act, 1912, or any of its provisions, exceeded the legislative competence of the legislature that enacted it; (2) whether the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions, exceeded the competence of its enacting legislature; and (3) whether Section 2 of the Part C States (Laws) Act, 1950, or any of its provisions, exceeded the competence of Parliament. The Court recognized that the reference raised matters of great importance for the administration of the Republic and answered the questions by affirming the constitutionality of the statutes in their entirety.

In this matter the Court noted that the reference made by the President was the first of its kind since the Republic’s new Constitution had come into force, and that the sole issue presented for opinion concerned the constitutional validity, or vires, of the statutes named in the reference. The Attorney-General argued that a legislature that possessed no authority to delegate its powers would be ineffective, and he maintained that the true character of Parliament’s legislative authority necessarily included the power to confer law-making functions on bodies other than Parliament itself. According to this submission, such a power of delegation arose naturally from the doctrine of parliamentary supremacy. He further submitted that, when acting within its constitutional jurisdiction, the Indian Parliament enjoyed plenary legislative powers comparable in breadth and nature to those of the British Parliament, and that, unless Parliament exceeded the limits expressly prescribed, there could be no question of the statutes being ultra vires. The Attorney-General proposed that the correct method of deciding the issue was to examine the terms of the instrument that created the legislative power positively, and to consider the terms that restricted it negatively. He stated that if the legislation fell within the general scope of the positive words granting power and did not breach any express condition or restriction, no court should expand or reinterpret those conditions in a constructive manner. The submission also relied upon the legislative practice in India and in other Commonwealth jurisdictions, where statutes of the same form as the challenged enactments had been accepted as constitutional. The reference encompassed three separate periods in the nation’s constitutional and political development. The first period dealt with the unitary government established under the Indian Councils Act, 1861, as amended up to the Morley-Minto reforms, a time when the Indian Legislature became a political debating body and the capital was transferred from Calcutta to Delhi. After the Round Table Conferences in London, the unitary system was replaced by a federation under the Government of India Act, 1935, which continued, with certain adaptations, until the Constitution’s inauguration on 26 January 1950. Under the Independence Act, 1947, India became a Dominion of the British Empire, yet the Dominion Parliament’s legislative competence remained confined within the framework of the 1935 Act, while the Constituent Assembly, acting as Parliament, was granted unlimited powers akin to those of a sovereign. The federal structure introduced by the 1935 Act was also adopted by the framers of the new republican Constitution. The second question concerned the Dominion period, and the third related to Parliament’s legislative competence under the present Constitution.

In the period when India had attained the status of a Dominion under the Indian Independence Act, the Court also considered the later question of Parliament’s legislative competence under the new Constitution of the Republic of India. The Court referred to the case of Queen v. Burah, reported in the Indian Appeals at page 178, to illustrate that by the year 1951 it was pointless to debate whether delegated legislation was necessary. The Court explained that delegated legislation represented only a particular aspect of the broader issue of administrative discretion. It observed that the need to entrust rule-making authority to administrative bodies on a large scale was as fundamental to modern industrial society as the State’s assumption of certain social-welfare obligations. The problem, the Court said, lay in how such delegated legislation and administrative discretion could be limited and supervised so that they obeyed the basic principles of law in a democratic system. The solution, according to the Court, had to be sought within the framework of the Constitution of the relevant country and required an interpretative approach that was constructive rather than strictly legalistic.

To place the issue in a comparative perspective, the Court noted that in other jurisdictions the “mother of Parliaments” had traditionally granted limited legislative powers to subordinate authorities and bodies. Some commentators had argued that any delegation of legislative power was unwise and ought to be avoided. The Court cited Professor Dicey, who warned that it would be futile for Parliament to attempt to work out the details of extensive legislative reforms, because such an effort would produce unwieldy and verbose statutes. Blackstone was also quoted as asserting that powers of this nature were essential for the effective functioning of government. The Court described how constitutional practice in England had gradually developed in response to parliamentary needs, without following a single logical system. Parliament had delegated authority for various reasons: the subject matter often required great detail, it was technical, or parliamentary time was pressed by other demands. Because Parliament was regarded as supreme and its power unlimited, it acted as it thought appropriate. The Court pointed out that the doctrine of ultra vires had no foothold in a system where parliamentary supremacy prevailed. It further observed that the concept of parliamentary sovereignty was fundamentally at odds with the rigid constitutions of countries that had adopted representative government schemes. In England, the supremacy of law merely meant that judges could control the executive, and it possessed no greater constitutional significance. The basis of power in England rested on the legal supremacy of Parliament and its unrestricted authority to make law. The Court recalled Coke’s statement that Parliament’s power was “so transcendent and absolute as it cannot be confined either for causes or persons within any bounds,” and Blackstone’s description that “an act of Parliament is 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 thereof belonging; nay, even the King himself, if particularly named therein.”

In this case, the Court observed that the authority of Parliament extended to the whole realm, its dominions, and even the King himself when expressly named in an enactment. Such an enactment could not be altered, amended, dispensed with, suspended or repealed except in the same form and by the same parliamentary authority (1). The Court described Parliament as a legal omnipotent despot, not merely a legislature, capable of delegating its legislative functions or creating new bodies empowered to make laws. Although the power of delegation is not necessarily implied by the power to enact statutes, it may be inherent in Parliament’s absolute sovereignty. Whether Parliament exercises delegation as a simple legislature or as an omnipotent sovereign, the Court held that it cannot be judged by the usual standards of judicial precedent or scrutiny, because English courts lack the power to inquire into such matters. Accordingly, the assertion that Parliament’s legislative power is merely an ipse dixit was rejected. The Court expressed agreement with the view of the eminent judge Varadachariar J., as set out in Benoari Lal Arma’s case (2), that India’s constitutional position more closely resembles the American model rather than the English model, and that United States decisions that lay down principles are a valuable guide on this question. This view is supported by the fundamental difference between the constitutions of the two countries. England possesses a unitary government with a flexible constitution, whereas India has a rigid constitution and, since 1935, a federal structure. Consequently, it is unsafe to draw conclusions about legislative competency by comparing a system fundamentally different in kind, not merely in degree. The Court therefore rejected the Attorney-General’s contention that the answer should be based on reference to Parliament’s power to delegate legislative authority to the executive. However, the Court noted that despite Parliament’s extensive powers, it has historically practiced self-restraint in matters of delegated legislation. A committee, popularly known as the Donoughmore Committee, was appointed to report on the Ministers’ powers, made recommendations and defined the limits within which delegated legislation should be exercised.

In its examination of delegated legislation, the Committee observed that mechanisms had subsequently been adopted to monitor such delegated powers. The Committee reported that it had identified several cases in which delegation had been extended to grant a limited authority to alter statutes enacted by Parliament. The first example cited was Section 20 of the Mental Treatment Act, 1930 (20 & 21 Geo. V, c. 23). This provision authorized the Minister of Health, by order, to amend the wording of any enactment to the extent necessary to bring it into conformity with the provisions of that section. The entire section dealt with terminology, aiming to replace certain statutory expressions that were then considered offensive with alternative wording deemed less objectionable. The second example was found in Section 76 of the Local Government Scotland Act, 1929 (19 & 20 Geo. V, c. 25). Under this section, the Secretary of State was empowered, for the period between 16 May 1929 and 31 December 1930, to issue orders that would adapt or modify any Act’s provisions so that they would align with the provisions of other Acts. Such a provision was popularly referred to as a “Henry VIII clause.” The Committee made a specific recommendation regarding this clause, stating: “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.” The language of this recommendation makes clear that even in a jurisdiction where Parliament is supreme, the power to modify Parliamentary statutes has rarely, if ever, been exercised except under the narrow circumstances described, and that the Committee advised that such power should generally be discontinued. It is noteworthy that, following this recommendation, Parliament has not employed a Henry VIII clause.

The Dominion of Canada operates under a written constitution known as the British North America Act (30 & 31 Vict., c. 31). This constitutional framework is not based on a doctrine that imposes an exclusive division of powers among distinct legislative, executive, and judicial departments, nor does it separate these functions into three completely insulated compartments. In this respect, the Canadian constitutional arrangement bears a partial resemblance to the British constitution, where the monarch remains a component of the legislature, the House of Lords participates in both legislative and judicial functions, and the various branches of government provide mutual checks on one another. Nevertheless, this superficial similarity does not imply that the Canadian legislature is of the same nature as the British Parliament. The Canadian legislature, being a non-sovereign body comparable to other colonial legislatures, differs fundamentally in its constitutional position and the scope of its authority from that of the British legislative institution.

Parliament was described as belonging to the class of non-sovereign legislatures, similar to all colonial parliaments. The decisions of Canadian courts on the power of the Canadian Parliament to delegate legislative authority were observed to be far from uniform. The more recent authorities cited were said to have been rendered under the extraordinary circumstances of the two world wars and the provisions of the War Measures Act. With great respect and humility, the Court noted that in those decisions the arguments advanced to establish the validity of delegated powers were neither particularly persuasive nor grounded in sound juristic principles. The Court suggested that such arguments could only be justified on the premise that, during a period of emergency and danger to the State, the Dominion Parliament might enact laws that it would lack competence to pass in normal times.

The Court turned to a series of Privy Council decisions that examined the validity of legislative enactments in Canada that purported to transfer legislative power to external authorities. It was expressed that those decisions offered a more reliable guide to resolving the present issue than the later decisions of the Supreme Court of Canada, which appeared to draw their support from the same Privy Council rulings. The earliest of those Privy Council cases was identified as Russell v. The Queen, decided in 1882. In that appeal two questions were raised. The first question concerned the validity of the Canada Temperance Act of 1878, with the contention that, in view of the distribution of legislative powers set out in the British North America Act of 1867, the Canadian Parliament lacked the competence to pass that Act. The second question, which the Court found to be the one relevant to the current enquiry, asked whether, even assuming that the Dominion Parliament possessed the powers it claimed to exercise by the Act, it had any authority to delegate those powers and thereby give local authorities the right to decide whether the provisions of the Act should be operative in their respective jurisdictions.

The mechanism for bringing the second part of the Temperance Act into force was set out as follows: a petition signed by not less than one-fourth of the electors of any county or city in the Dominion, those electors being qualified to vote in elections to the House of Commons, could be presented to the Governor-in-Council. Upon receipt of such a petition, and after the prescribed notices and evidence, the Governor-General could issue a proclamation embodying the petition, with a view to holding a poll of the electors for or against its adoption. When the electors of the county or city adopted the petition, the Governor-General in Council, after a period of sixty days from the date of adoption, could by Order in Council published in the Gazette declare that the second part of the Act would be in force in that locality, at which point it would become effective.

Counsel for the respondents argued that, even assuming the Parliament of Canada had authority to enact legislation prohibiting and regulating the sale of intoxicating liquors, it could not delegate that authority, and that the Act had in effect delegated the power to bring the prohibitory and penal provisions into force to a majority of the electors of the counties and cities. The Court, quoting the Privy Council, responded that the short answer to this objection was that the Act did not delegate any legislative powers at all; instead, it contained within itself the complete legislation on the matters it addressed.

The Act set out a specific procedure for bringing its second part into operation. According to the provision, when a petition that named a particular county or city was adopted by the electors of that county or city, the Governor-General in Council was authorised to act after a lapse of sixty days from the date on which the petition had been adopted. The Governor-General in Council could then make an Order in Council, publish that Order in the Gazette, and by means of that Order declare that the second part of the Act would be in force and would take effect in the named county or city. Once such a declaration was made, the second part of the Act became operative in that locality in accordance with the terms of the Order. This mechanism was designed to give effect to the second part of the legislation only after a formal petition and a prescribed waiting period, thereby linking the operation of the law to the expressed desire of the local electors as evidenced by the adopted petition.

It was submitted before the Lords that, assuming the Parliament of Canada possessed the authority to enact a law prohibiting and regulating the sale of intoxicating liquors, it could not lawfully delegate its legislative powers. The counsel further contended that the Act effectively delegated the power to bring into force the prohibitory and penal provisions of the Act to a majority of the electors of the counties and cities, which would amount to an impermissible delegation of legislative authority. In response, the Lords expressed their view in the following 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 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. Their Lordships entirely agree with the opinion of Chief Justice Ritchie on this objection. If authority on the point were necessary, it will be found in the case of Queen v. Burah, lately before this Board.”

The Lords therefore appeared to accept the proposition advanced by the counsel that the delegation of legislative power was not permissible, countering his arguments by stating unequivocally that the Act did not delegate any legislative power whatsoever. Their brief answer emphasized that any delegation was implicit within the legislative power already possessed by Parliament, and that the decision did not need to rest on the principle of conditional legislation. Although Queen v. Burah was an appeal from the High Court of Bengal, reference was made to it, and its decision was described as establishing a relevant rule for cases arising under the British North America Act, 1867. To understand the rule endorsed by the Lords, it was necessary to set out precisely what Queen v. Burah held. The judgment of that case concerned Act XXII of 1869 of the Council of the Governor-General of India, entitled “An Act to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Acts, and for other purposes,” and the reasoning in that case was cited as an authoritative statement on the limits of delegating legislative authority.

The Act contained a series of specific provisions. Section 4 declared that, except as later provided, the area identified as the Garo Hills was removed from the jurisdiction of the civil and criminal courts and from the authority of revenue offices established under the Bengal Code regulations and any statutes enacted by any legislature existing now or in the past in British India. The provision further stated that the laws prescribing the functioning of those courts and offices would no longer apply to that territory, and that no future law made by the Governor-General’s Council for making laws and regulations would be deemed to apply to any part of the territory unless the law expressly named the area.

Section 5 assigned the administration of both civil and criminal justice, the supervision of settlement and collection of public revenue, and all matters concerning rent within the territory to officers appointed by the Lieutenant-Governor. These officers could be appointed for the purpose of acting as first-instance tribunals or as bodies of reference and appeal. The appointed officers were to operate under the direction and control of the Lieutenant-Governor and were to follow any instructions that the Lieutenant-Governor issued from time to time.

Section 8 empowered the Lieutenant-Governor, by publishing a notification in the Calcutta Gazette, to extend to the territory any law or any part of any law that was then in force in other territories governed by his administration, or any law that might later be enacted by the Governor-General’s Council or by the Lieutenant-Governor himself for making laws and regulations. The Lieutenant-Governor could also, by such notification, direct who would exercise or perform any powers or duties arising from the provisions that were extended, and could issue any order he considered necessary to give effect to those provisions.

Section 9 authorised the Lieutenant-Governor, again by notice in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the other sections of the Act to the Jaintia Hills, the Naga Hills, and to such portions of the Khasi Hills that at the time formed part of British India. Acting under the authority granted by Section 9, the Lieutenant-Governor of Bengal, on 14 October 1871, issued a notification that extended the entire Act to the territory described as the Khasi and Jaintia Hills. The notification removed the civil and criminal courts’ jurisdiction over that area, defined the boundaries of the territory, and applied every provision of the Act to those districts. The Lieutenant-Governor did not exercise any discretion to select only parts of the Act; instead, he applied the whole of the legislation to the newly specified region.

The Court observed that section 9 of the statute did not give the Lieutenant-Governor authority to alter any of the Act’s provisions. The majority of the High Court of Bengal had held that the notification issued under that section could not lawfully remove the territories from the jurisdiction previously vested in the High Court. The basis of that conclusion was that the Council of the Governor-General of India, created under the Councils Act 1861, possessed no power to delegate such authority to the Lieutenant-Governor, a power that had in fact been delegated by Act XXII of 1869. The Indian Councils Act 1861, cited as 24 & 25 Vict. c. 67, in its section 22 conferred upon the Governor-General in Council the power to make laws and regulations, to repeal, amend or alter any existing law, and to legislate for all persons, courts, places and matters within the territories, including servants of the Government of India in the dominions of princes and states. However, the Act expressly restrained the Governor-General in Council from enacting any law or regulation that would repeal or otherwise affect the provisions of the Act itself.

The Court then turned to the reasoning of the majority of the High Court judges concerning section 9. Those judges treated section 9 not as substantive legislation but as a delegation of legislative power. In the leading judgment of Justice Markby, the doctrine of agency was invoked, suggesting that the Indian Legislature functioned as an agent or delegate operating under a mandate from the Imperial Parliament, which must execute its functions directly. The Court noted that if that doctrinal view were correct, it would be impossible to maintain the distinction drawn by the majority between the authority granted to the Lieutenant-Governor by section 2 and that granted by section 9. Section 9 allows the Lieutenant-Governor to decide whether the Act, or any part of it, shall apply to a particular district, while section 2 authorises him to determine the date on which the Act becomes operative in any area. Legislation that leaves the timing of its commencement to an external authority is no less incomplete than legislation that leaves the determination of its territorial scope to the same authority. Consequently, the Court concluded that the majority’s doctrine was erroneous and rested on a mistaken understanding of the powers of the Indian Legislature. While the Indian Legislature’s powers are expressly limited by the Imperial Parliament’s enabling Act, within those limits it is not a mere agent of the Parliament but possesses full plenary legislative authority, comparable in scope and nature to that of Parliament itself.

The Court explained that when an external authority is given the power to expand the geographical reach of a law that is already in force, it follows that the same authority also has the power to bring that law into operation by fixing its commencement date. The Court then stated that the view adopted by the majority of the Court was wrong because it was based on a mistaken understanding of the powers of the Indian Legislature and of the nature and principles of legislation. The Court observed that the Indian Legislature possesses powers that are expressly limited by the Act of the Imperial Parliament that created it, and that it cannot act beyond the limits set by that Act. However, the Court emphasized that when the Legislature acts within those limits it is not merely an agent or delegate of the Imperial Parliament; rather, it was intended to have full legislative powers comparable in scope and character to those of Parliament itself. The Court further noted that established courts, whenever a question arises as to whether the prescribed limits have been exceeded, must determine that question by examining the instrument that positively confers the legislative powers and the instrument that negatively restricts them. If a measure is legislation that falls within the general scope of the positive words granting the power and does not breach any explicit condition or restriction that limits that power—such a restriction would also include any Imperial Parliament act that is inconsistent with it—then no court should go beyond that measure or expand those conditions and restrictions by implication. The learned Attorney-General relied heavily on these observations to argue that where legislation lies within the field authorised for the exercise of legislative power, the Legislature may, within that field, delegate its powers as widely as possible. The Court cautioned, however, that this quotation could not be isolated from its surrounding context. The meaning of the observations could be understood only in light of the following remarks, which stated that the Governor-General in Council could not, by any enactment, create a new legislative power in India that was not authorised by the Councils Act. The Court affirmed that nothing of that sort had been done or attempted in the present case. Instead, the Governor-General in Council, in the normal course of legislation, had decided to remove a certain district from the jurisdiction of the ordinary courts and offices and to place it under new courts and offices that would be appointed by and answerable to the Lieutenant-Governor of Bengal.

The legislation provided that the ordinary courts and offices in a particular district were to be removed and replaced by new courts and offices that would be appointed by, and answer to, the Lieutenant-Governor of Bengal. It left to the Lieutenant-Governor the decision of the exact moment when this substitution would become effective. Moreover, the statute did not grant the Lieutenant-Governor the authority to create new law for that district or for any other district. Instead, it authorised him, by means of a public notification, to apply to the district any law, or any portion of a law, that either already existed or might later be enacted by proper legislative authority in the other territories that were also under his government. The Act further stated that a certain change should be made, but that it was advisable to entrust both the timing and the method of implementing that change to the discretion of the Lieutenant-Governor. In addition, the legislation declared that the laws currently in force, or that might come into force, in the other territories governed by the same authority could be deemed suitable to be applied to the district in question. Recognising, however, that it was not certain that every such law, or every part of each law, could be applied with equal convenience, the statute additionally entrusted the Lieutenant-Governor with a discretion to determine, on a case-by-case basis, which portions should be extended to the district.

The Court observed that it would be a mistake to describe the powers given to the Lieutenant-Governor, however extensive they might be, as if the validity of the actions taken under those powers depended on any legislative authority other than the Governor-General in Council. The Court explained that the entire operation of the provisions was directly derived from, and immediately based upon, the Act of 1869 (Act XXII). The competent legislature had exercised its judgment in specifying the place, the officer, the applicable laws and the powers, and it had chosen to do so conditionally. Once the stipulated conditions were satisfied, the legislation became absolute. The Court further noted that where a legislature possesses full legislative authority over particular subjects—whether at the Imperial level or within a provincial legislature—it may, in the Court’s view, exercise that authority either unconditionally or conditionally. Conditional legislation, which hinges on the use of certain powers or on a limited discretion entrusted by the legislature to trusted persons, is a well-recognised and often convenient practice. The British statute book contains many examples of such conditional enactments, and it could not be assumed that the Imperial Parliament, when establishing the Indian Legislature, failed to contemplate conditional legislation within the scope of the powers it periodically conferred. The Parliament did not use any language to exclude this possibility. Near the end of the judgment, the Court pointed to several Indian statutes that exemplify conditional legislation, citing, in particular, the Codes of Civil and Criminal Procedure and section 39 of Act XXIII of 1861, which authorised the local government—subject to prior sanction of the Governor-General in Council, not in his legislative capacity—to extend certain provisions.

The Court observed that the statutory provision permitted the application of the Act “subject to any restriction, limitation or proviso which the Local Government may think proper.” In the Court’s view, the judges did not expressly agree with the proposition that the Indian Legislature possessed an unrestricted power to delegate authority within the scope of its legislative competence, nor did they disagree with the conclusion reached by Justice Markby in the final part of his judgment that, according to the general principles of Indian law, any substantial delegation of legislative power by the country’s legislature was void. Nevertheless, the judges pointed out that legislation of the sort under discussion constituted what is described as conditional legislation, meaning that such legislation became complete only upon the satisfaction of the stated conditions, and that the determination of those conditions could be entrusted to an external authority. While the judges expressed disapproval of the majority of the Full Bench for applying the doctrine of agency and for treating the Indian Legislature as an agent of the Imperial Parliament, they clearly maintained the opinion that the exercise of legislative will and judgment could not be transferred to an external authority and that it was incumbent upon the proper legislature to exercise its own judgment concerning the place, persons, laws and powers involved. It appeared to the Court that, although the judges were unwilling to endorse the view that the matter should be decided on principles derived from agency law, they were also reluctant to abandon the rule that, apart from agency doctrine, a person who is assigned an office or duty by virtue of a special qualification may not lawfully delegate that duty to another unless expressly authorized to do so. Public functionaries tasked with performing public duties must carry out those duties according to their own judgment and discretion, except where it is necessary to employ ministerial officers to discharge the duties effectively. For the reasons outlined, the Privy Council seemed not prepared to declare that delegation of legislative power formed an inherent content of the power itself; instead, it limited itself by upholding the law as valid under the label of conditional legislation. The Court found it hard to imagine that the Privy Council would have hesitated to make such a declaration if it had believed that the delegation of legislative power constituted an intrinsic part of the power. The judgment also referred to a passage from Justice Markby’s opinion, which stated that the various Parliamentary statutes did not expressly confer on the Indian Legislature the power to alter the machinery of legislation in India, although they did grant that power subject to significant restrictions upon the executive government. The passage further noted that Mr. Kennedy had boldly asserted that the Indian Legislative Council possessed the power to transfer legislative functions to the Lieutenant Governor of Bengal, and that, as understood, the only restriction he would have sought to impose was that the Legislative Council could not destroy its own power to legislate.

In this case the Court observed that the argument advanced by the earlier counsel asserted that the Legislative Council could not abandon its own legislative capacity, although the commentator saw no reason for limiting the discussion to that point alone. The Advocate-General, however, did not adopt that extensive position. The Court pointed out that none of the Acts of Parliament contain language that would allow legislative power to be transferred in some situations while remaining non-transferable in others, and it emphasized that the mere entrustment of a discretionary function to another authority does not automatically equate to a transfer of legislative authority. The Court further noted that virtually every statute enacted by the legislature contains examples of discretion given to judicial and executive officers, and the legality of such delegations is never ordinarily questioned. The Court then framed the broader issue as whether the legislature may confer legislative power upon the Lieutenant-Governor. It reiterated the well-settled principle in Indian law that any substantial delegation of legislative authority by the legislature is void. Subsequently, it was contended that a passage cited in the concluding part of the Privy Council’s judgment appeared to endorse the view that legislative power could be delegated to permit amendment of a statute previously passed by the legislature. The Court held that this contention arose from a misunderstanding of the Privy Council’s decision. Referring to the Full Bench judgment of the Calcutta High Court in Empress v. Burgh & Book Singh, the Court reproduced Markby J.’s observations concerning similar illustrations. Markby J. had responded to the argument that the Indian Legislature had long delegated power, presenting a list of Acts passed between 1845 and 1868 that were alleged to be instances of legislative delegation, and argued that these Acts did not clearly demonstrate a transfer of legislative authority. He further observed that provisions in many of those Acts allowing the executive to make rules in conformity with the Act were supported by the authority in Biddie v. Tariney Churn Banerjee, which confirmed that rule-making power could be conferred without delegating legislative authority. Consequently, the list did not establish a consistent practice of transferring legislative power. The Court also cited Ainslie J.’s analysis of section 39 of Act XXIII of 1861, where Ainslie J. explained that the section merely permitted a local government, with prior approval of the Governor-General in Council, to add any restriction, limitation or proviso it deemed appropriate when extending the Code of Civil Procedure to territories not covered by the general regulations, and that such a power did not amount to authority to amend the law itself.

In this part of the judgment the Court observed that the provision which limited the Code to the general regulations was essentially another method of postponing the complete extension of the Code. The Court explained that, although the Code might obtain limited operation, the fact that the extension was only pro tanto nevertheless reflected the intention of the superior legislature that, sooner or later, the Code would become the law throughout the particular tract of country. When the Court read the section, it held that the provision did not give any power to amend the law itself; it only permitted a portion of the law to be kept in abeyance or to make its operation contingent on something external to it, and that again represented a further form of delaying the full operation of the law.

The Court noted that no doubt had been cast on this construction of the language of section 39 either by the minority judgment of the High Court or by the judgment of the Lordships of the Privy Council. In view of the clear opinion expressed by Ainslie J regarding the meaning of the language used in section 39, and because that opinion had not been disapproved by the Lordships of the Privy Council, the Court held that it could not be argued with any force that the Lordships in Burah’s case (1) had approved the proposition that the power of conditional legislation included the power to amend or modify the Act of the legislature itself. In the Court’s view the result of the decision in Burah’s case (1) was simply that the Indian Legislature possessed the power to legislate conditionally. The Court further held that this case was no authority for the proposition that the Legislature could delegate its judgment on what the law should be to an external agency, and that the case did not support the proposition that amendment of a statute of the legislature itself could be a subject of delegated legislation, as reported in 5 I.A. 178.

The Court explained that the expression that the Indian Legislature could not arm a new legislative body with legislative power, a body not created by the Indian Councils Act, meant only that the Legislature must itself make laws and could not confer that power on another body. In other words, the Legislature could not create a person having co-extensive legislative power nor could it vest such a person with the capacity to lay down principles and policies. The possession of plenary powers within the field laid down meant that, within that particular field, the Legislature could make any law on the subjects covered, but it did not mean that the Legislature could shirk its duty to enact laws in that field by passing a law that it would not operate on itself and that some other entity would operate on its behalf. In the Court’s opinion the judgment of the Lordships amounted to saying that, although within the prescribed field the Legislature had the greatest legislative power, it was simultaneously subject to the condition that it could not formally or virtually abandon its high trust. The next case mentioned by the Court was Hodge v. The Queen (1), a Canadian case decided by the Privy Council in 1883, in which the appellant Hodge was

The appellant was the proprietor of 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. In addition, the appellant also possessed a licence granted under the Municipal Act, which authorised him to operate a billiard saloon with a single table that could be hired out. On 7 May 1881 the appellant, in contravention of the Liquor Licence Act, unlawfully allowed a billiard table to be used and a game of billiards to be played in his tavern during a period when the Act prohibited the sale of liquor.

The appellant’s defence argued that the Ontario Legislature lacked the competence to enact legislation concerning licences for the sale of liquor, and that even if it possessed such competence it could not delegate its legislative power to the Licence Commissioners. The local legislature had delegated to three officials the authority to define offences and impose penalties. The appellant maintained that this delegation amounted only to a power to make by-laws and not to a delegation of legislative authority. The Court of the King's Bench Division held that the local legislature had no power to delegate such authority, concluding that only the legislature itself could exercise it. The Court of Appeal reversed that decision, and the reversal was upheld by the Privy Council.

The Privy Council found that sections 4 and 5 of the Liquor Licence Act were intra vires the Constitution. In delivering their judgment the Lords observed, “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 area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect. It is obvious that such an authority is ancillary to legislation, and without it an attempt for varying details and machinery to carry them out might become oppressive, or absolutely fail.” The citation for the Canadian case referred to is (1) 9 App. Cas. 117.

The Court observed that an authority delegated to implement legislation is merely ancillary to the law itself, and that without such delegated machinery the attempt to vary details and execute the law could become oppressive or fail entirely. The Court noted that the extensive judgment of the Court of Appeal cited numerous precedents supporting the practice of conferring limited discretionary authority on others, and it provided many illustrations of the necessity and convenience of such delegation. Counsel at the bar argued that when a legislature assigns important regulatory functions to agents or delegates it effectively effaces itself; the Court rejected this proposition, holding that the legislature retains its full powers and may at any time discontinue the agency it has created, replace it with another agency, or assume the function directly. The extent to which a legislature seeks the assistance of subordinate agencies and the duration of such assistance are matters for each legislature to determine, not for the courts. In the Court’s view the case decided three principal points: first, the power to make by-laws or regulations concerning subjects specified in an enactment for the purpose of giving effect to that enactment may be transferred to municipal institutions or local bodies; second, such delegated authority is ancillary to the primary legislation; and third, granting regulatory power to agents and delegates does not amount to the effacement of the legislature itself. The decision did not endorse the view that a legislature may delegate its own power to amend or modify a statute, for such power is not ancillary to legislation and falls outside the doctrine of subsidiary legislation. The Court emphasized that the Privy Council never approved a broad proposition that a legislature could employ an agent with co-extensive powers to perform the same functions that the legislature itself could. The Privy Council limited permissible delegation to authority ancillary to legislation or to municipal institutions for making regulations and by-laws, and expressly rejected any delegation of the power to declare law, deeming such delegation beyond the competence of the Parliament of Canada or the Indian Legislature. The Court further rejected any inference that the Privy Council’s decision implied that a legislature could delegate powers short of effacing itself. The Court clarified that there is no justification for reading such a construction into the language employed by the Privy Council while it was addressing the argument presented by counsel. The case cited, In re The Initiative and Referendum Act, was identified as the third Canadian case decided by the Privy Council, in which the Legislative Assembly of Manitoba, through the Initiative and Referendum Act, sought to vest the power to make and repeal provincial laws directly in the electorate rather than solely in the Assembly.

In that case the Court observed that the members of the provincial legislature were elected by the electorate. The Court held that the powers granted to a provincial legislature by section 92 of the Constitution Act, 1867 included the authority to amend the province’s own constitution, subject only to the limitation that the office of the Lieutenant-Governor could not be altered. The Court further held that the Manitoba Initiative and Referendum Act removed the Lieutenant-Governor entirely from the new legislative system that the Act attempted to create, and that such exclusion went beyond the powers of the provincial legislature. Consequently, the Court declared the Act to be void for being ultra vires.

Lord Haldane, delivering the opinion of the Privy Council, explained that after determining the Act to be ultra vires, the Court would not finally adjudicate another difficulty raised by those who argued for the Act’s validity, but thought it appropriate to refer to the point because it had been brought before the lower court. He reiterated that section 92 of the Constitution Act, 1867 confers legislative authority in a province exclusively upon its own legislature and on no other body. 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 permitted in the earlier case of Hodge v. The Queen, where the Ontario Legislature was allowed to delegate regulatory authority over taverns to a Board of Commissioners. However, Lord Haldane stressed that such delegation did not permit the legislature to create a new legislative power of its own, a power that was not provided for by the constitutional Act that created the legislature.

Lord Haldane’s observations reaffirmed the principle established in Hodge v. The Queen and did not suggest that a legislature could delegate the power to amend or modify its own statutes. He emphasized in unequivocal language that section 92 entrusts legislative power solely to the provincial legislature and to no other entity. The underlying principle of his remarks was later quoted in Street’s treatise on the doctrine of ultra vires (page 430), which noted that the decision that the statute was ultra vires was not based solely on the issue of delegation; rather, the remarks indicated that a legislature would not ordinarily be allowed to shift the responsibility for legislation to another body, even though it may set out general principles and leave detailed implementation to subordinate agencies.

The Court also referred to the case of King v. Nat Bell Liquors Ltd., in which the Alberta Liquor Act (6 Geo. V, c. 4) was held to be within the provincial competence under the British North America Act, 1867, and was therefore not ultra vires.

The Court observed that the provincial legislation was not ultra vires merely because it had been enacted pursuant to a popular vote under the Direct Legislation Act (4 Geo. V, c. 3, Alberta). It emphasized that the law had been made by the provincial legislature itself and had followed the ordinary procedure of the legislative houses. Consequently, the Court held that the case did not support the argument advanced by the learned Attorney General.

The next Canadian decision cited by the Privy Council was Croft v. Dunphy. In that case, anti-smuggling provisions that operated beyond territorial limits—provisions that had long formed part of Imperial customs legislation and were considered necessary for its effectiveness—were held to be valid and within the constitutional powers of the legislature. The Court indicated that this decision did not introduce any new principle beyond those already discussed in Queen v. Burah and Hodge v. The Queen.

In the case of Shannon v. Lower Mainland Dairy Products Board, the issue was whether a provincial scheme concerning natural products marketing, which involved control, regulation, and the imposition of licence fees, fell within the provincial legislature’s authority. It was contended that the province could not delegate legislative power to the Lieutenant-Governor in Council or grant him further powers of delegation. The Court rejected this objection, stating that the criticism “seems subversive of the rights which the provincial legislature enjoys while dealing with matters within its ambit.” The Court added that it was unnecessary to list the innumerable occasions on which legislatures had entrusted similar powers to various persons and bodies, and that, based on past practice, the delegation was upheld. The Court clarified that such past practice involved conferring necessary and ancillary powers needed to implement the policy of a statute.

The Court also referred to Powell v. Apollo Candle Co., decided in 1885. That case concerned the validity of section 133 of the Customs Regulating Act of 1879, which authorized the levy of certain duties by way of an Order in Council. The Court held that the section was intra vires the constitution. The argument presented was that the power given to the colonial legislature to impose duties should be exercised solely by the legislature itself and not be delegated wholly or partially to the Governor or any other person. The Court answered by explaining that duties levied under an Order in Council were in fact levied by authority of the Act under which the order was issued. The legislature had not relinquished its complete control over the Governor and retained the power to withdraw or modify the delegated authority. On this construction, the Court concluded that the delegate acted under the authority of the Act, leaving no question about the validity of the delegation.

The question of whether a legislature may delegate its law-making authority was raised before the Court. The authorities cited at the Bar, namely Fort Frances Pulp & Power Co. v. Manitoba Free Press (1), Co-operative Committee on Japanese Canadians v. Attorney-General for Canada (2) and Cooperative Committee v. Attorney-General of Canada (3), were held to be of no assistance in forming an opinion on the issue presently before the Court. The learned counsel then relied upon four recent decisions of Canadian courts that advocate a very expansive view, holding that, save for a complete effacement of the legislature, Parliament or a legislature possesses the broadest possible power to delegate and that such delegation is intra-vires the Constitution. The first of those decisions was In re George Edwin Gray (4). That case involved the invocation of section 6 of the War Measures Act, 1914, which conferred extensive powers on the Governor-General in Council for the purpose of conducting the war efficiently. A majority of four judges to two delivered the judgment, and in the majority opinion the following observations were made: “The practice of authorising 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 (1) [1923] A.C. 695. (3) [1947] A.C. 87. (2) [1947] 1 D.L.R. 577. (4) 57 S.C.R. (Canada) 150. 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 branch. In view of Rex v. Halliday (1), I do not think this broad proposition can be maintained. Parliament cannot indeed abdicate its functions; within reasonable limits it can delegate its power to execute Government orders. Such powers must necessarily be subject to determination by Parliament and, needless to say, the acts of the Executive under its delegated authority must fall within the ambit of the legislative pronouncement by which this authority is measured. It is true that Lord Dunedin in Rex v. Halliday (1) said that the British Constitution has entrusted to the two Houses of Parliament, subject to assent by the King, an absolute power untrammelled by any other circumstance, obedience to which may be compelled by a judicial body. That undoubtedly is not the case in this country. Nothing in the Act imposes any limitations on the authority of Parliament.”

The Court observed that there can be no objection to the opening proposition of the quotation, which reiterates the classical separation of powers. However, the learned judges went on to articulate a rule whereby, in the absence of any constitutional limitation, Parliament may delegate to an external authority the power to amend and repeal statutes that it itself has enacted, provided that such delegation does not amount to an abdication of Parliament’s functions. The Court expressed doubt that this rule could be accepted without qualification, indicating that the mere possibility of delegation does not override the fundamental principle that a legislative body may not surrender its essential law-making competence to another entity unless such surrender constitutes a clear abdication of its constitutional role.

In this passage the Court expressed that the first set of observations appeared inconsistent with the basic principle that a duty assigned to a particular body, to be carried out according to a prescribed procedure by that body, 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 explained that abdication by a legislative body does not have to mean a total disappearance of that body; abdication may be either partial or complete. It would amount to abdication, for example, when a legislature, with respect to a subject listed in the legislative list, declares that it will not legislate on that subject and instead allows another person or entity to legislate on it. Such delegation of law-making power is not authorised. The Court rejected the assumption that the term “abdication” applies only when there is a total eradication or legal extinction of the legislative body. In the Court’s view, abdication occurs whenever a legislature refuses to fulfil its duty to legislate on a particular matter and entrusts another party to perform that function, whether the abandonment is formal or merely virtual. The Oxford Dictionary defines “abdication” as the abandonment, either formal or virtual, of sovereignty or a high trust, and the Court adopted that definition to describe a virtual abandonment when the person entrusted with the trust directs another to perform the entrusted functions, either in part or in whole. The Court held that the view expressed in the quoted passage could not be supported by the decisions of the Privy Council judges discussed earlier in the judgment. Duff J. had expressed his opinion as follows: “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.” The Court, with great respect, found that these observations could not be justified on any juristic principle. The Court noted that there can be no anticipatory sanction for a law that does not yet exist or is not even conceived, and that an organ of the legislature for making laws may be created only by the constitution, not by the legislature that itself derives its law-making power from the constitution. The dissenting judge in this case had observed that a wholesale surrender of the people’s will to any autocratic power would be unjustified both under constitutional law and in light of the historical experience of the nation. Those observations were made with reference to the power of amendment or repeal that had been conferred on the delegate. As

The judgment earlier observed that the power in question had never been exercised by the British Parliament and that the Donoughmore Committee had advised that, as far as possible, such exercise should be abandoned. The Court expressed the view that the decision reached in the present case did not constitute a suitable authority for resolving the legal questions presented in the reference. The Court then turned its attention to the case cited as Ref. re Regulations (Chemicals)(1). That Canadian case involved regulations concerning chemicals that were issued under the authority granted by the Department of Munitions and Supply Act and by the War Measures Act. The central issue was whether those regulations exceeded the constitutional limits. The Court held that, except for a single provision, the regulations were intra vires, and it observed that the War Measures Act did not seek to turn the executive branch into a legislature in the manner that the Parliament of Canada and the provincial legislatures function as legislatures. Consequently, the regulations derived their legal force solely from the War Measures Act. The judgment relied on the authorities Queen v. Burah(2) and Hodge v. The Queen(3). One judge noted that the maxim “delegatus non potest delegare” is a principle of agency law and does not apply to legislative acts; he further observed that delegation was essential to give the War Measures Act a workable scope and therefore must be regarded as part of the powers conferred by Parliament in that Act. Another judge concurred that the maxim, while rooted in agency law, had no application to legislation. A third judge, however, said that the maxim could also apply to the grant of legislative power, but that Parliament had not relinquished its authority; in the ultimate analysis, Parliament retained full power to amend or repeal the War Measures Act. The Court concluded that, for the reasons already stated, the observations in that case extended beyond the rule articulated by the Privy Council in Queen v. Burah(1) and Hodge v. The Queen(3) and therefore did not provide a reliable guide to the present problem.

The Court also examined the decision in Attorney-General of Nova Scotia v. Attorney-General of Canada(3). That case did not fully support the view expressed in the earlier Canadian authorities. It held that neither the Parliament of Canada nor any provincial legislature could delegate to the other any of the legislative authority that each separately received from the British North America Act, particularly the powers set out in sections 91 and 92 of that Act. The Court emphasized that the legislative authority granted to the federal Parliament and to provincial legislatures is exclusive, so that neither body may confer upon the other or accept from the other any of its legislative powers, although each may delegate powers to subordinate agencies.

In this case the Court examined whether legislative power could be delegated. The learned Chief Justice observed that delegations previously considered in In re George Edwin Gray(4) and in Reference re Regulations (Chemicals)(5) under the War Measures Act involved delegating authority to a body subordinate to Parliament, and therefore differed in character from the delegation proposed by the bill now before the courts. Concerning the general question of delegation, the Supreme Court did not go beyond the rule set out in In re The Initiative and Referendum Act(6), nor beyond the principle expressed in Hodge v. The Queen(7). Reference may also be made to the case of Oimuit v. Bazi(8). The learned Attorney-General relied on certain obiter dicta of Justice Davies, asserting that the Parliament of Canada possessed the power to delegate its legislative authority and that such delegation fell within its competence. The learned Chief Justice, however, did not express any opinion on that point, while Idington J. was not prepared to subscribe to this view. The other judges did not consider the issue at all. The author of this judgment considered those remarks, which were doubted by other judges, of little assistance in deciding the case. The learned Chief Justice did not express any opinion on the point, while Idington J. was not prepared to subscribe to this view. (1) 5 I.A. 178. (5) (1943) 1 D.L.R. 248. (2) 9 App. Cas. 117. (6) [1919] A.C. 935. (3) (1950) 4 D.L.R. 369. (7) 9 App. Cas. 117. 57 S.C.R. 150. (8) 46 S.C.R.L. (Canada) 502. After reviewing the Canadian authorities on the matter, the judgment turned to a passage from Street on the Doctrine of Ultra Vires, which explains the true position of colonial legislatures and clarifies the language used by the Privy Council when it stated that colonial legislatures are not agents of the Imperial Parliament. The passage reads: “However true it may be that colonial legislatures are not mere agents of the Imperial Government, it is also true that they are not unfettered principals. Within the terms of their constitution they are limited at least as to subjects and area, and, to the extent suggested, perhaps also as to power of delegation. If an ultra vires colonial statute may be ratified by the Imperial Parliament, there is an implication of agency. To do anything outside the scope of their constitution, as when the Dominion of Canada established the Province of Manitoba, an imperial statute is required. It would appear that a legislature cannot, as an ordinary principal, ratify acts purporting to be done under its authority. Taking a broad view, non-sovereign legislatures are, and so long as they do not repudiate their constitutions, must remain delegates of the Imperial Parliament. They have been so regarded by the Privy Council. But just as in the case of the prerogative it would be impolitic to apply a formula too strictly, so also the law of agency must be accommodated to meet the solid fact that the colonies, or the”.

In this passage the Court noted that among the former colonies the most important of them have attained genuine independence, and then turned to the decisions of American courts concerning the constitutionality of delegating legislative power. The Court observed that the American decisions, unlike those of other jurisdictions, are far from uniform in approach. Judicial opinion in the United States has on some occasions adopted a strict stance, declaring such delegation invalid, while on other occasions it has liberally upheld the delegation as constitutional, relying not on systematic juristic principles but on considerations of convenience, the doctrine of “determining conditions,” or historical factors. The Court further stressed that, despite these divergent views, the Supreme Court of the United States has never abandoned the fundamental doctrine that legislative authority cannot be transferred to other branches of government, nor to independent bodies, nor even back to the people themselves. According to the Court, the rule against delegating legislative power does not rest solely on the constitutional doctrine of separation of powers among the three state departments—legislative, executive, and judicial—although that doctrine does impose a restraint on delegations to other governmental branches. The prohibition on delegating to independent commissions finds its justification in Coke’s maxim, delegatus non potest delegare, a principle traditionally applied in agency law but, as the Court explained, embodying a sound juristic rule for persons entrusted with public duties and high trusts. The Court added that the restriction on delegating authority back to the populace is linked to the concept of representative democracy. During the arguments, counsel referred to numerous decisions of the United States Supreme Court and quoted several constitutional law texts, though the Court considered it unnecessary to list every cited authority and chose to mention only the most significant cases. The Court identified Waman v. Southard, reported in 6 Law Edn. 262, as the earliest American case worthy of mention; this decision, rendered by Chief Justice Marshall in 1825, examined the validity of certain rules framed by the courts and concluded that Congress could not delegate strictly or exclusively legislative powers to courts or any other tribunal. In Killbourn v. Thompson, also reported in 6 Law Edn. 262, the Court held that the legislative department could not exercise judicial power. The Court then referred to Field v. Clark, a leading American case on the subject, in which legislative power had been delegated to the executive branch to impose specific duties; the delegation was upheld because the legislature had already determined the policy, leaving only the details for the President, who acted merely as an agent executing the legislative policy rather than exercising legislative will.

The Court observed that the constitutional system of government does not permit Congress to transfer its legislative authority to the President. The same principle was reiterated in the case of Springer v. Philippine Islands (C). A comparable view was expressed in United States v. Gravenport et al. Co. (4), where the Court noted that after establishing a primary standard, the legislature may delegate the responsibility of working out detailed regulations to appropriate legislation. The provision examined in that case was not deemed a delegation of legislative power; rather, it was considered a grant of authority to formulate administrative rules. In O'Donohue v. United States (5), the issue concerned the compensation owed to Judges of the Supreme Court, and the Court held that such compensation could not be lawfully reduced. The judgment further remarked that the purpose of creating the three branches of government was not merely a matter of convenience but a fundamental safeguard to prevent the mixing of duties, ensuring that the actions of one branch could not be claimed to have been performed under the coercive influence of another.

The decision in Hampton and Co. v. United States (6) contains a frequently cited passage from Chief Justice Taft. The Court quoted the passage as follows: “It is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch, or, if by 103 U.S. 168. (4) 287 U.S. 77. (2) 143 U.S. 649. (5) 289 U.S. 516. (3) 277 U.S. 186. (8) 276 U.S. 394. law it attempts to invest itself or its members with either executive power or judicial power.” The passage clarified that this principle does not imply that the three branches are not co-ordinate parts of a single government, nor does it forbid each branch from seeking assistance from the others, provided such assistance does not assume the constitutional field of another branch. In determining permissible assistance, the extent and character of that help must be based on common sense and the inherent necessities of governmental coordination. The Court explained that the legislative field of Congress covers a wide variety of actions, and that Congress often finds it necessary to employ officers of the executive branch, within defined limits, to achieve the precise effect intended by its statutes. This can involve delegating authority to those officers to issue public regulations interpreting a statute, to direct the details of its execution, and even to impose penalties for violations of such regulations. The Court further observed that Congress may be unable to specify exactly when its legislative enactments should become effective because future conditions are uncertain; consequently, it may delegate the determination of the effective date to an executive decision or, in matters of state legislation, to a popular vote of the residents of the affected district. The decision in Panama Refining Co. v. United States (1) was identified as another leading Supreme Court case addressing this subject, and the discussion proceeded to the case of Benoir…

Varadachariar J. placed considerable reliance upon the decision reported in Lal Sarma’s case (2) when formulating his conclusion that the principle of non-delegation of power should be upheld in India. In support of that perspective, the Court cited several observations made by Chief Justice Hughes. Hughes C.J. emphasized that Congress is not authorized to abandon or to transfer to others the essential legislative functions vested in it. He acknowledged that legislation often must be adapted to complex circumstances involving a multitude of details that the national legislature cannot address directly. Nevertheless, the Constitution has never been interpreted as denying Congress the necessary flexibility and practicality that enable it to set policies and standards while delegating the formulation of subordinate rules, within prescribed limits, and the determination of factual situations to which the legislatively declared policy applies. Justice Cardozo added that an attempted delegation which is not confined to any specific act, nor to any identified class or group of acts defined by reference to standards, effectively creates a “roving commission.” In Opp Cotton Mills v. Administrator (1) it was observed that essential legislative power cannot be delegated, although agencies for fact-finding may be established; Yakus v. United States (C) expressed a similar view. Lichter v. United States (3) held that a constitutional power carries with it a power of delegation sufficient to achieve its purpose, a point particularly significant in relation to war powers where discretion concerning methods of execution may be essential for effective use of such powers by Congress. The precise degree to which Congress must articulate its policies and standards, so that the administrative authority granted does not amount to an unconstitutional surrender of legislative power, cannot be precisely defined. Collectively, these decisions suggest that American judicial opinion generally opposes the delegation of essential legislative powers by Congress to administrative bodies or independent commissions. The Court noted that it was unnecessary to reproduce all the passages quoted from various textbooks, which, apart from the authors’ commentary, merely summarise the outcomes of the relevant judicial decisions. Crawford, in his work on the construction of statutes, accurately summarised the prevailing state of constitutional law on this matter, observing that legislative power has been delegated, as a general rule, not to undermine the tripartite theory of separation of powers but out of necessity and convenience; as the social system becomes increasingly complex, the legislature has become obliged to delegate certain functions, particularly those involving fact-finding and rule-making, while still prescribing an intelligible principle to guide the delegated authority.

In order to legislate effectively, efficiently and expeditiously, the legislature had delegated certain functions that were not purely legislative in character to various agencies, especially to administrative officials and boards. The most noticeable powers that were delegated were the power to ascertain facts and the power to promulgate rules and regulations. On careful examination, many of the other delegated powers could be classified within one of these two principal categories. The Court explained that whenever a power was delegated to an executive official or an administrative board, the legislature was required to declare the policy of the law, to fix the legal principles that would control the particular cases, and to provide a standard that would guide the official or the board empowered to execute the law. This standard could not be overly indefinite or vague; it might be expressed in broad general terms, but it had to be an intelligible principle that would direct the executive or administrative official. From these typical criteria, it was apparent that the courts exercised considerable liberality in upholding legislative delegations, provided that a guiding standard had been established. Such delegations were not subject to the objection that legislative power had been unlawfully transferred. The filling-in of mere details within the policy, according to the legal principles and standards set by the legislature, was regarded as essentially ministerial rather than legislative, even though the delegated authority might enjoy considerable discretion. In fact, the method and manner of enforcing a law were to be left to the reasonable discretion of administrative officers, subject to the legislative standards. However, on one important point there was uniformity among American judicial decisions and among textbook writers. The delegation of a general power to make and repeal laws had consistently been held unconstitutional, as observed by Dixon J. in Victoria etc. Co. and Meakes v. Dignam(1). It was noted that no decision of the United States Supreme Court could be found in which Congress had allowed the executive to make regulations or ordinances that might overreach existing statutes. In Moses v. Guaranteed Mortgage Co. of New York(2) a provision of the Emergency Banking Law of 1933 was struck down as an unconstitutional delegation of power. In that case a banking board had been given the authority to adapt, rescind, alter or amend rules and regulations that were inconsistent with or in contravention of any law. Walter Gellhorn, in the second edition of his work on Administrative Law, remarked at page 110 that delegations of power to alter or modify statutes were effectively delegations of dispensing, suspending or rule-making powers, or a combination of those, and that the mere use of the terms “alter” or “modify” in a statute had produced unexpected repercussions from courts and commentators. In several decisions cited in that book the courts had held that delegating power to alter or modify a statute constituted an unconstitutional delegation of power. As Prof. Salmond observed in his treatise on Jurisprudence, a legislative act passed by the supreme legislature could be amended only by that supreme legislature itself.

The Court noted that a legislative Act passed by the supreme legislature may be amended only by that same supreme legislature. It cited the definition of “modify” from Rowland Burrow’s Words and Phrases, stating that “modify” means to vary, extend, enlarge, limit or restrict. The Oxford Dictionary further described the term as “the making of partial changes or altering without radical transformation” (1) 46 C.L.R. 73. (2) 239 App. Div. 703, and defined “modification” as “the result of such alteration, a modified form or variety.” The Court then referred to Stevens v. General Steam Navigation Co. Ltd., where it was held that modification implies an alteration and may either narrow or enlarge the provisions of a former Act. The Court expressed the view that the American decisions holding that delegation of authority to modify a congressional Act is unconstitutional are fully supported by the meaning of the word “modify,” even though Professor Walter Gellhorn disagrees. Before concluding, the Court quoted a passage from Baker’s Fundamental Law that sets out the principle underlying those American decisions and aligns with the Court’s own opinion. The quoted passage explained that the division of the United States government into three coordinate branches necessarily prevents any one branch from delegating its authority to the other two, and that additional reasons exist why legislative power cannot be delegated. It further observed that representative government vests in the persons chosen to vote taxes and enact laws, entrusting them with the most important and sacred trust of civil government. Those representatives must exercise wise discretion and sound judgment, taking into account the purposes and needs of the executive and judicial departments, the ability of taxpayers to respond, and the general public welfare. Consequently, it is a self-evident proposition that a representative legislative assembly must exercise its own judgment; when it consents to a tax it must distinctly determine the amount by fixing a definite rate or an aggregate sum, and when it enacts a law it must do so in a manner that the Act, upon leaving the legislative department, is a complete law. This leads to the constitutional maxim that a legislative body cannot delegate its power, because such delegation to the executive would be destructive of representative government and a return to despotism. The nature of legislative power and the very existence of representative government depend on the doctrine that this power cannot be transferred.

The Court noted that, pursuant to the Constitution as it stood in July 1900, the legislative authority of the Commonwealth was vested exclusively in a Federal Parliament. Executive authority was lodged in the Crown, represented by the Queen, while judicial authority was assigned solely to the courts. The Constitution delineated the scope of the legislative power in sections 51 and 52, and any powers not expressly assigned to the Commonwealth were reserved for the States as residuary powers. The first Australian decision referred to by the Court was Baxter v. Ah Way, decided in 1909. In that case the Court held that section 52(g) of the Customs Act 1901, which declared that all goods whose importation was prohibited by proclamation would be deemed prohibited imports, did not constitute a delegation of legislative power. Instead, the provision was characterised as conditional legislation that fell within the authority conferred on Parliament by section 51 of the Constitution. The Court further explained that the act of prohibiting importation was itself a legislative act of Parliament, and that the effect of subsection (g) was merely to give the Governor-General, acting with the Council, the discretion to specify the particular class of goods to which the prohibition would apply.

In delivering the judgment, the learned Chief Justice observed that the argument against legislative delegation was rooted in earlier authority, yet it was evident that every legislature, in some sense, entrusts certain functions to other bodies. He remarked that it was not intended to suggest that the legislature was incapable of performing the act itself, because it could indeed do so. He described the situation as a form of delegated authority because it authorised another entity to perform an act the legislature might have undertaken itself, and he considered it untimely to persuasively argue that such delegation, if it were delegation, was objectionable. He rejected the maxim “delegatus non potest delegare” as a basis for objection and concluded that, since there was no objection to conditional legislation being enacted, the matter fell under that category. O’Connor J. added that section 51 bestowed power in respect of trade and commerce with other countries and on taxation, and also empowered Parliament to make laws incidental to the exercise of any of its powers. He stated that a fundamental constitutional principle is that everything necessary to the exercise of a power is included in the grant of that power, and that everything required for the effective exercise of legislative power must be deemed conferred by the Constitution. Accordingly, he held that the exercise of discretion under the provision could not be characterised as law-making. Higgins J. expressed the view that, in fact, no delegation of law-making power occurred in the matter. The Court affirmed that the case was founded on the principle that legislative power cannot be delegated, and that the statute under challenge was justified on the basis of being conditional legislation. Consequently, if delegation of legislative power were permissible, it would have been unnecessary to seek justification in terms of conditional legislation.

In the case of Roche v. Kronheimer, decided in 1921, the argument was presented by the counsel then known as Dixon. The central issue in that appeal was whether the Treaty of Peace Act of 1919, which in its second section authorised the creation of regulations that delegated certain powers to specified individuals, was constitutionally valid. The court held that the legislation was constitutional. In the counsel’s submission, the validity of the statute was attacked on several grounds. It was asserted that the Act was not “conditional legislation” as described in the earlier decision of Baxter v. Ah Way, but rather it conferred upon the executive the full legislative authority over a particular subject. The submission further contended that the vesting of legislative power in any body other than Parliament was prohibited, and that a law which permitted another body to make laws on a specific subject did not itself constitute law on that subject. The judgment articulated these points in the following terms: if Parliament possessed the authority to legislate, it did not have the power to transfer that authority to the Governor-General. The judgment referred to earlier authorities, namely Hodge v. The Queen, Rex v. Halliday, and In re The Initiative and Referendum Act, and devoted considerable discussion to the precise meaning and effect of the first of those cases. It was noted that the validity of legislation presented in that form had previously been upheld in cases such as Farey v. Burvett, Pankhurst v. Kierman, Ferrando v. Pearce, and Sickerdick v. Ashton, and the court declined to revisit the correctness of those decisions. Consequently, the court decided the matter on the basis of procedural posture, leaving the point raised by counsel Dixon unanswered. In 1931 two further appeals were heard by the Supreme Court. One of these, decided in February 1931, was Huddart Parker Ltd. v. The Commonwealth, in which Justice Dixon was among the presiding judges. That appeal concerned the validity of section 33 of the Transport Workers Act, which empowered the Governor-General to make regulations relating to transport workers. The judge observed that Roche v. Kronheimer had previously determined that a statute granting the executive the power to make legislation on certain matters constituted law with respect to those matters, and on that construction the case was resolved. The second appeal, decided in November 1931, was Victorian etc. Co. & Meakes v. Dignan. In that case the question was whether section 3 of the Transport Workers Act fell within the constitutional limits, specifically whether it unlawfully delegated legislative power. The court’s discussion of Roche v. Kronheimer highlighted that the earlier decision had relied on the doctrine of stare decisis, and that the subsequent cases continued to evaluate the propriety of delegating legislative authority to the executive.

In that case the Constitution was said to have delegated the power to make regulations even though other Acts contained different provisions, and the delegation was described as conferring “regulative power.” The appellants were informed that they had committed an offence against the Waterside Employment rights by being taken for work as a waterside worker at Melbourne although they were not members of the Waterside Workers’ Federation, while transport workers who were members of the Federation were available to be taken for work at the same port. The challenge to the Act was based on an American constitutional doctrine that a legislative body may not delegate to another department of government or to any other authority the power, either generally or specially, to enact laws. It was argued that this prohibition derived from the very existence of the legislature’s own powers, a high prerogative entrusted to its own wisdom, judgment and patriotism and not to those of other persons; to delegate that trust would be ultra vires. It was also observed, however, that the doctrine did not forbid conferring local governmental powers on local authorities. The defence contended that the Act did not violate the doctrine because Parliament had limited the regulatory power to certain specific matters within the ambit of the trade and commerce power and therefore had merely exercised its own legislative authority within that field, without delegating any portion of it. Reference was made to the decision of Higgins J. in Baxter v. Ah Way (3), where it was observed that the Federal Parliament possessed full authority to frame its own laws in any manner, using any agent, agency or machinery that it considered fit for the peace, order and good government of the Commonwealth. Rich held that subordinate law-making authority could be invested in the executive. Further reference was made to Roche v. Kronheimer (1). The learned Attorney-General relied heavily on the judgment of Dixon J. The judge expressed his view on the American decisions, stating: “But where does the distinction lie between a law of Congress requiring compliance with a direction on a specified subject that the administration thinks proper to give and a law that invests the administration with authority to legislate on the same subject?” He added that the Supreme Court’s answer to this question was articulated by Chief Justice Taft in Hampton & Co. v. United States (2), noting that American courts had never adopted any standard for the validity of statutes other than reasonableness, which served as a common refuge in the absence of clear or certain standards. The learned judge then concluded that judicial power could not be given or delegated, but from…

In his discussion, the learned Judge observed that the statement that Parliament was prohibited from delegating any power that was essentially legislative to another organ or body was not correct. He referred to an earlier judgment in which he had expressed the view that the passage of time had rendered it appropriate to assign the constitutional distribution of powers among the various organs of government. In that earlier view, the legislative authority was confined to Parliament, thereby preventing Parliament from placing in the executive an authority that was essentially legislative in nature. The Judge further stated that he was not prepared to modify that opinion or to amend his previous expression suggesting that the case of Roche v. Kronheimer (29 C.L.R. 329) decided that a statute granting the executive a power to legislate on matters that fell within one of the subjects of Parliament’s legislative power was a law concerning that subject and the distribution of powers, and that this did not restrain Parliament from making the law.

He then explained that the proposition that a law conferring authority to the executive would automatically be valid, regardless of how extensive or vague the subject-matter might be, was erroneous so long as the law did not exceed the limits of federal power. He added that the distribution of powers could still provide important considerations affecting a law’s validity. The Judge acknowledged that the manner in which the Constitution achieved the separation of powers logically and theoretically made Parliament the exclusive repository of the Commonwealth’s legislative power. He noted that Parliament’s power to authorise subordinate legislation could be traced to a conception of legislative power that relied more on the history and usage of British legislation and English legal theory than on strict juristic analysis. Such subordinate legislation, he said, remained under Parliamentary control and lacked the independent, unqualified authority characteristic of true legislative power.

In his final analysis, the Judge concluded that the earlier judgment was grounded primarily on the history and usages of British legislation and English law rather than on a strict construction of the Australian Constitution. He admitted that, logically or theoretically, the power of delegation upheld in that case could not be justified within the constitutional framework. The Judge also expressed difficulty in following the distinction drawn in the earlier judgment, namely that the delegation he considered justified did not include the fullest possible delegation of any matter within the bounds of federal power. After careful consideration of the eminent Judge’s observations, the author of this opinion regarded them as an unreliable guide for the present reference. He observed that the earlier decision not only over-reached the limitations imposed by the written Constitution but also rested on theories of British legislation and English law, which were ill-suited to a Constitution that embodies a complete separation of powers.

The Court observed that the reasoning of Mr. Justice Evatt could scarcely be applied to a written constitution that enforces a strict separation of powers. In the case under discussion, Justice Evatt articulated a distinct rule. He said that every delegation by Parliament of authority to make regulations constitutes, in itself, a delegation of legislative power. He further explained that the essential character of the Commonwealth Parliament’s legislative power includes, as part of its content, the ability to confer law-making authority on entities other than the Parliament itself. The Court regarded the notion that legislative power inherently contains a component of delegation as lacking foundation in any established principles of jurisprudence or statutory construction. It was considered inconsistent with the fundamental principle that a high trust placed in a particular body must be exercised by that body alone, following the procedure prescribed for it, and not by any other entity. Moreover, the Court found this decision to be at odds with the earlier decisions of the Privy Council that had been cited. If the mere existence of legislative power in a legislature automatically authorized it to delegate that power, then the Privy Council’s Lordships would have had little need to justify delegation in the cited cases on the ground of conditional legislation, nor would they have needed to state expressly that the cases before them did not involve delegations of legislative authority. This stance conflicted with the observations of the Privy Council in the case of Benoari Lal Sarma, decided under the Government of India Act, 1935, where the Council held that the Governor-General, acting under section 72 of Schedule IX, must personally discharge the legislative duty assigned to him and cannot transfer it to any other authority. After setting out the rule, Justice Evatt added that the extent of the power granted is often a material circumstance in assessing the validity of the legislation that confers the grant. He noted that the Commonwealth’s legislative authority is plenary, but every law passed by Parliament must be capable of being described as a law concerning at least one of the specific subjects enumerated in sections 51 and 52 of the Constitution. Referring to various circumstances considered by the learned Judge in reaching a conclusion on the constitutionality of a statute, Justice Evatt concluded that, ultimately, the Commonwealth Parliament is not competent to surrender its legislative powers. This limitation does not arise because Parliament is compelled to perform all its legislative functions, nor solely because of the doctrine of separation of powers; rather, each law enacted by Parliament must qualify as legislation relating to one or more of the constitutional subject-matters, and any law that transfers the entirety of Parliament’s law-making authority to another body would fail this essential test.

The Court observed that any law enacted by Parliament must fall within the subjects enumerated in the Constitution, and therefore a statute that transfers the entire legislative authority of Parliament to another body would be invalid because it would not satisfy that constitutional test. The Court expressed difficulty in discerning any principle of statutory construction that could justify treating the matters the learned Judge described as material circumstances for assessing the validity of an Act when the issue concerned the vires of the legislation. The Court then referred to the Australian case of Wishart v. Fraser, in which the challenge was directed against section 5 of the National Security Act, 1939-40, a provision that authorized the creation of regulations for the purposes of public safety and defence of the Commonwealth. That case followed the same line of reasoning as the earlier Australian decision previously discussed. In the Court’s view, the decision in Baxter v. Ah Way represented a correct construction of the relevant provisions of the Australian Constitution, and the subsequent Australian decisions could not be regarded as authoritative guidance for this country on the point under consideration. The argument advanced by the counsel identified as Mr Dixon, as it appeared in the cited authorities—namely 64 C.L.R. 470 and 8 C.L.R. 626—was, according to the Court, a sound statement of the principle involved. The Court noted that the Privy Council has rendered only a few decisions on this subject arising from India. The earliest such decision, Queen v. Burah, had already been examined at length earlier in the judgment and, as previously indicated, does not support the proposition that the Indian Legislature created under the Indian Councils Act, 1861, possessed the power to delegate to the executive the authority to modify or amend provisions of an Act that the legislature itself had passed. The last Indian Privy Council decision on the matter was King-Emperor v. Benoari Lal Sarma. In that case, a 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 by a special Bench of the Calcutta High Court, a decision that was subsequently affirmed by the majority of the Federal Court of India on the ground that the Ordinance was ultra vires. On appeal to the Privy Council, the validity of the Ordinance was contested. Although the Ordinance itself did not establish any special courts, it provided in subsection (3) of section 1 that the Ordinance “shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbouring India or from the imminence of such an attack, by notification in the official gazette, declare it to be in force in the Province and shall cease to be in force when such notification is rescinded.” The Court noted that this provision was the basis of the contention that the Ordinance was invalid either because its language suggested that the Governor-General, notwithstanding the preamble, was making provision for a possible future emergency rather than responding to an existing one, or because the clause amounted to “delegated legislation” whereby the Governor-General, lacking legal authority, attempted to delegate the decision as to whether an emergency existed to the Provincial Government instead of determining it himself.

It was observed that the ordinance provided that it would remain operational until a notification rescinding it was issued. In light of this final clause, it was argued that the ordinance was invalid for two reasons. First, the wording was said to imply that the Governor-General, despite the preamble, did not actually find an emergency to exist but was merely preparing a provision for a possible future emergency. The argument was supported by references to earlier authorities, namely 29 C.L.R. 329, 5 I.A. 178 and [1945] F.C.R. 161. Second, it was contended that the clause amounted to “delegated legislation,” whereby the Governor-General, lacking legal authority, purported to transfer the decision as to whether an emergency existed to the Provincial Government instead of deciding the matter himself.

Regarding the second contention, the Lords examined the issue and declared the following. They affirmed that the Governor-General, acting under section 72 of Schedule IX, must personally perform the legislative function assigned to him and cannot delegate that function to another authority. Nevertheless, they observed that the Governor-General had not, in fact, delegated any of his legislative powers. In emergencies, his powers were described as being as extensive as those of the Indian legislature, which, under the proclamation of section 102, possessed authority to enact laws for a province even on subjects that would ordinarily be reserved to the Provincial legislature. The Lords found no legitimate legal objection to the form of the Governor-General’s ordinance, which required that the actual establishment of a special court under the ordinance occur at the time and within the limits deemed necessary by the Provincial Government concerned. They emphasized that this arrangement did not constitute delegated legislation; rather, it represented a common legislative scheme where the local application of a statutory provision is determined by the judgment of a local administrative body concerning its necessity. The Lords expressed full agreement with the opinions of the Chief Justice of Bengal and of Justice Khundkar on this point, noting that Justice Khundkar had appropriately cited a passage from the Privy Council’s decision in Russell v. The Queen.

The discussion highlighted the reach of conditional legislation but clarified that the cited case did not justify delegating legislative power to an external authority to alter the provisions of a legislative enactment. It was further pointed out that the opening portion of the quoted passage appeared to endorse the view expressed by Justice Varadachariar of the Federal Court in another case, wherein he, relying on Street’s Doctrine of Ultra Vires, observed that a legislature is generally not permitted to shift the burden of legislation, even though it may set out main principles and leave detailed implementation to subordinate agencies. The Lords also referenced the Federal Court’s decision in Jatindra Nath Gupta v. The Province of Bihar and Others, which was pertinent to the matter under consideration.

In this matter the author of the judgment stated that he was a party to the proceedings and that he stood in respectful agreement with the opinion expressed by the learned Chief Justice as well as with the reasoning of his brother, Mukherjea, whom he considered to have correctly articulated the rule governing the delegation of legislative power. He then set out the relevant provision of the Bihar Maintenance of Public Order Act, 1947, which in subsection (3) of section 1 declared that the Act would remain in force for a period of one year from the date of its commencement, but added a proviso that the Provincial Government could, by means of a notification, and only after a resolution had been passed by the Bihar Legislative Assembly and approved by the Bihar Legislative Council, direct that the Act should continue for an additional year, with any modifications that might be specified in the notification. Acting under this proviso, the Provincial Government on 11 March 1948 issued a notification extending the life of the Act for a further year. The validity of that proviso was subsequently challenged on the ground that it amounted to an unlawful delegation of legislative power by the Provincial Legislature, which the challengers contended was not competent to make such a delegation. Relying upon the Privy Council’s decision in the case of Benoari Lal Sarma, the author held that the proviso was void. He presented the question before the Court in the following terms: “What does the proviso purport to do in terms and in substance?” He answered that the proviso empowered the Provincial Government to issue a notification stating that the Provincial Act would remain in force for a further period of one year and that it could incorporate any modifications that might be specified therein. He further observed that, unless the power of the Provincial Government were exactly co-extensive with the power of the Provincial Legislature, it was difficult to conceive how the Government could lawfully modify a statute that had been passed by that Legislature. He explained that to modify a statute is to re-enact it, at least in part; it involves the authority to declare that certain provisions are no longer part of the law and that a statute previously consisting of, for example, X sections now consists of Y sections. In exercising the power to modify, a discretionary judgment must be made as to whether particular provisions should continue to have legal effect in the future or should be removed, and the power to modify may even encompass the power to repeal parts of the statute. He stressed that a modified statute is not the same as the original statute; logically it amounts to the creation of a new law. He noted that the ordinary dictionary meaning of the word “modify” is to make something existing less severe, to tone it down, or to effect partial changes. Consequently, determining what modifications, if any, should be made to a statute is an exercise of law-making power, not merely the execution of an already-conferred authority.

The Court explained that delegating the authority in question could not be treated as a simple execution of a power that the statute had already granted. It observed that the scope of any alterations was being left to an external body, specifically the Provincial Government, and that no action was being taken pursuant to an existing law. According to the Court, what was being delegated was the power to decide whether a law should continue to operate after its ordinary period had expired, and, if continuation was warranted, whether the law should remain as originally enacted or be altered in some manner. The Court described the entity appointed to make such a determination—namely, the body that would decide whether a penal Act of this nature should enjoy a life longer than that originally intended by the legislature, and, if so, what modifications should apply—as a new form of legislative authority distinct from the legislature that performed duties under the Government of India Act, 1935.

The Court reiterated its view that deciding the lifespan of an Act is a question that must be answered by the competent legislature itself. It emphasized that whether a particular enactment should remain permanently on the statute book or only temporarily is a matter of policy, and that this question does not fall within the category of conditional legislation because it concerns extending the existence of a temporary Act. The Court noted that a temporary Act naturally ceases to exist when the period fixed for its operation comes to an end, and that there is no true analogy between conditional legislation—which authorises a designated authority to determine the commencement or termination of an Act—and an act undertaken by exercising a power that the Act itself confers. The Court then referred to the learned Attorney-General’s statement that a certain decision had created considerable difficulties, alleging that various High Courts in India, relying on that decision, had declared certain enactments void—enactments whose validity had never before been questioned.

In the Court’s humble judgment, the decision in question did not disturb the legal position established by the Privy Council in Burah’s case. The decision did not assert that the Indian legislature lacked the power to delegate functions necessary for the effective performance of its legislative duties. Rather, it held—an observation the Court considered correct—that an essential legislative function could not be surrendered to an external authority and that the legislature could not avoid its own responsibility by shifting the burden onto others. The Court affirmed that, had it believed the decision to be erroneous, it would have plainly acknowledged the mistake without resorting to euphemistic language. The Court observed that no decision of the Privy Council, during the entire period of British administration, ever upheld the contention advanced by the learned Attorney-General. Conversely, eminent judges in this country, such as Markby J. and Varadachariar J., had unequivocally affirmed the principle that the delegation of essential legislative power lies beyond the competence of the Indian

The Court observed that reference could also be made to the recent decision in The State of Bombay v. Narottamdas (2), reported in [1951] S.C.R. 51, in which the Court itself had been a party. In that judgment it was explained that the earlier ruling in Jatindra Nath Gupta’s case (1) did not constitute authority prohibiting the delegation of legislative power where the principle and policy of the law were expressly set out in the enactment and where ancillary powers were delegated to the provincial government for the purpose of bringing the provisions of the Act into operation. The Court then summarized that judicial opinion on the question of legislative delegation remained fluid and that it was impossible to reconcile all the cited decisions on the basis of any rigid constitutional principle. The Court noted that, in England, Parliament was, at that time, following the recommendations of the Donoughmore Committee. In the United States, the doctrine against delegation of legislative power continued to dominate the field. In Canada, as well as in India, the rule articulated by the Privy Council in Burah’s case (2) had never been departed from in theory. The same view had previously been upheld by Australian decisions, although recent Australian cases had gone further by holding that even essential legislative power could be delegated provided that the principal did not completely efface itself.

In the Court’s opinion, the true solution to the problem of legislative delegation could be found in the frequently quoted passage from the judgment of Ranney J of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. v. Clinton County Comrs. (3). The passage read: “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.” The Court also referred to the decision in Locke’s Appeal (4), which was based on the same rule. In that decision it was said (1) [1949] F.C.R. 595; (3) 1 Ohio St. 88; (4) 72 Pa. St. 491: “To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know.” The Court further explained the proper distinction, stating: “The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known.”

The Court observed that the power to make law, being a legislative function, must be examined and determined outside the confines of the legislature itself. It noted that the Federal Court of India, in the opinion delivered by Justice Varadachariar in the case of Benoari Lal Sarma (1), had examined a submission made by the Advocate-General of India which relied upon the quotation from Justice Ranney. The Court quoted the Federal Court’s comment: “We are of the opinion that there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in the passage from the American authority which the Advocate-General of India proposed to adopt as his own argument.” The majority of the Federal Court, the judgment added, endorsed the rule articulated by Chief Justice Hughes in Panama Refining Co. v. United States (2). It further explained that the rule in that American case did not relate to the maxim delegatus non potest delegare; rather, it was an elaboration of the principle that the Judicial Committee described in Burah’s case (3) as “the nature and principles of legislation.” The Court then posed the question: why is delegation treated as a characteristic of legislative power and not of judicial power? In the Court’s view, delegation is not a characteristic of any of the three branches of State power—legislative, judicial, or executive. Instead, delegation is an incidental aspect of the exercise of each branch’s authority, insofar as it is necessary to assign tasks to achieve the proper performance of their respective public functions. No public official can personally execute every duty that his office authorises without the assistance of agents or delegates, but this practical necessity does not permit the official to delegate the exercise of his own judgment and discretion to another. The Court prompted further reflection by asking why a legislature is created with such careful attention by the framers of the constitution, why the constitution prescribes detailed procedures for an elected legislature to follow in the enactment of law, and why it delineates the legislature’s various functions and the methods by which it must act. The reasonable answer, the Court said, is that the constitution places trust in the judgment of the body that is constituted according to the constitutional scheme and in the exercise of its discretion in conformity with the prescribed procedures. By the same principle, judges are not permitted to surrender their own judgment to anyone else; the decision of a case rests solely with the sitting judge. Nevertheless, judges may delegate ancillary powers in appropriate circumstances, such as in suits involving accounts or the dissolution of partnerships, where commissioners may be entrusted with authority to resolve specific points of dispute between the parties concerning items in the account. The Court further questioned why other public officials who are responsible for appointing public servants cannot delegate this particular function, and it indicated that the same principle—requiring personal attention of the authority concerned—applies to such delegations.

In addressing the question of whether a public functionary could delegate his constitutional duty to another, the Court observed that the answer lay in the same principle that governed the earlier discussion. The learned Attorney-General was asked to explain the matter, but he was unable to give a satisfactory answer; he merely suggested that the nature of the power itself might require the personal attention of the authority concerned and that, therefore, delegation was implicitly forbidden. The Court held that the same principle absolutely prohibited the delegation of essential legislative power. It explained that such power was inherently bound up with the character of the legislature elected for the purpose, subject to the qualifications already stated, and that it would be a breach of constitutional duty to vest this power in another person. Citing Sir John Salmond, the Court noted that, in general, the power of legislation was too important to be committed to any person or body except the corporate community itself, although in exceptional cases it might be possible and expedient to entrust it to private hands. Referring to the observations of Mr. Dixon, the Court stated that when a law authorised another body to make laws on a particular subject, that act was not itself a law on that subject. The Court further quoted the rule from Baker’s treatise that it is an axiom of constitutional law that representative legislative bodies cannot delegate legislative power because representative government vested the most important and sacred trust of voting taxes and enacting laws in the persons elected to exercise that power. Another jurist was cited as saying that legislation was the formal utterance of the legislative organ of society and not of any delegate, and that only the words of the legislative organ constituted law. Turning to private law, the Court reiterated the well-settled rule that an arbitrator could not lawfully transfer his duty to another unless expressly authorised, because the nature of the duty required the arbitrator’s own judgment and discretion. It also affirmed that fiduciary duties could not be delegated, although trustees might employ machinery or subordinate agencies to carry out functions attached to their constitution. Delegation was deemed permissible only where there was a legal or physical necessity, such that without relying on another person it would be impossible to discharge the duties efficiently. The Court observed that municipal and other corporations could not delegate the power to make by-laws to executive officers, because that power was entrusted to them in their corporate capacity and had to be exercised in that capacity. The Court concluded that the principle, well settled in private law, should likewise apply to the discharge of duties by public functionaries and by a legislature, because the nature of the duty itself implied that it must be performed by the person entrusted with it and by no one else.

In this matter, the Court observed that the nature of duties performed by public officials and by a legislature inherently requires that such duties be carried out by the individuals or bodies to whom they are assigned and by no others. In other words, the very character of a public duty imposes the requirement that it be executed by the designated authority, and the principles of legislative enactment reinforce this requirement. Consequently, the Court could not accept the argument advanced by the learned Attorney-General that, in the absence of an explicit or implied constitutional provision, legislative authority might be conferred upon other persons. Instead, the Court held that, unless there is a clear express or implied authorization, delegating such authority is not permissible. The Court noted that the limited exceptions to this rule fall into two categories, as outlined in the earlier citation from Crawford’s treatise. The Court then turned to an examination of the Constitution to assess the Attorney-General’s contention that the Indian Constitution had been modeled on the British system and that the Parliament of India possessed omnipotence comparable to that of the British Parliament, especially concerning the delegation of legislative power. The Court opined that the Indian Constitution represents a judicious blend of the American model and the British parliamentary tradition. While its overarching framework derives from the Government of India Act, 1935, providing for a federation of states and an executive accountable to the legislature, the framers also borrowed selectively from other constitutions without adhering rigidly to any single model. The Constitution contains provisions without any foreign precedent, reflecting awareness of both administrative convenience and the dangers of allowing unchecked legislative delegation to the executive. Having recently emerged from a burdensome bureaucratic regime that threatened to stifle the nation’s vitality, the framers evidently sought to prevent a return to such oppressive structures. They recognized that unrestrained delegation of legislative power would inevitably foster bureaucratic domination; therefore, they incorporated detailed constitutional safeguards on all relevant matters. The Court emphasized that no other country possesses a constitution as elaborate and comprehensive as that of India, and it would be inappropriate to interpret this Constitution by reference to decisions concerning differently structured constitutions. Only after a thorough consideration of every constitutional provision and the Constitution’s overall design can one determine whether any delegation of power—legislative, executive, or judicial—lies implicitly within a grant of authority or has been expressly provided for, to the extent that it was deemed necessary for administrative convenience in peace or wartime. On that true construction, the Court concluded that an implication of such delegation could not be sustained.

The Court observed that a power may be regarded as necessary for administrative convenience during peace or war, but such power cannot be impliedly conferred when the Constitution is given its true construction. It further noted that the Indian Constitution differs fundamentally from the British system because the doctrine of parliamentary supremacy is limited within this constitutional order. Accordingly, the courts are empowered to declare an Act of Parliament unconstitutional when it conflicts with Part III of the Constitution or when it intrudes upon fields that have been demarcated for State legislatures. The demarcation of legislative fields implicitly means that one legislature cannot, by delegating subjects that lie exclusively within its own jurisdiction, endow the other legislature with the capacity to make laws on those subjects, for such delegation would amount to an infringement of the Constitution itself. Consequently, the Court held that delegation of legislative power to that extent is prohibited by the Constitution. For illustration, defence is a Union subject while law and order is a State subject; therefore, it cannot be reasonably argued that Parliament may, by delegation, give a State legislature the law-making power over defence, nor that a State legislature may, by delegation, give Parliament the power to legislate on law and order. In the Court’s opinion, any argument supporting such transfers of power must be rejected because the delegation would be contrary to the Constitution and lies outside its contemplated scheme. For the same reason, if a transfer of legislative power is not permissible between the two legislatures, it is difficult to justify a similar transfer in favour of the executive, except to the extent allowed by the Constitution or previously recognised under the designations “conditional legislation” or “rule-making power,” which the Constitution-makers were evidently aware of. The Court expressed no hesitation in concluding that the Constitution-makers accepted the American doctrine opposing delegation of legislative power, and that, for reasons of administrative convenience and to meet special circumstances, they carefully inserted explicit provisions within the Constitution to allow devolution of power in those eventualities. Article 53 of the Constitution deals with the executive power of the Union; it vests that power in the President and expressly provides that the President shall exercise it either directly or through subordinate officers in accordance with the Constitution. The Parliament is authorised by law to confer functions on authorities other than the President, and a careful reading of Article 53 shows that the Constitution contains an elaborate scheme for employing agencies and machinery to exercise Union executive power. The President also holds the supreme command of the Defence Forces, and, in addition to this authority, the Constitution confers a power of delegation on Parliament.

In the Constitution, article 53 clause three sub-clause (b) expressly authorized the President, within the executive sphere, to delegate functions. A comparable provision existed for the executive authority of each State through article 154. Article 77 laid down the manner in which the business of the Government of India was to be conducted, granting the President the power to make rules that would facilitate the convenient transaction of governmental business and to allocate that business among the Ministers. The Constitution therefore contained a detailed scheme for the exercise of executive power that was not found in the other constitutions referred to by the Court.

Article 79 declared the existence of a Parliament for the Union, and the subsequent articles specified how that Parliament was to be constituted, how it should conduct its business, which officers and secretariat it could employ, and what powers it possessed. Articles 107 through 119 dealt with the legislative procedure, and the elaborate provisions implied that the Constitution vested law-making authority in the corporate body of Parliament. That body was required to exercise judgment and discretion in enacting statutes and voting taxes, and it could do so only by following the procedural rules expressly set out in those articles. Article 123 conferred upon the President a legislative power that could be used when Parliament was not in session, and that power was co-extensive with the legislative authority of Parliament itself. Article 124 concerned the Union judiciary, prescribing the number of Judges, the method of their appointment, and the procedure by which the President made those appointments. Under article 140, Parliament was empowered to confer supplementary powers on the Supreme Court whenever such powers were deemed necessary for the Court to more effectively exercise the jurisdiction granted to it by the Constitution. This explicit provision countered the learned Attorney-General’s argument that the power to delegate legislative authority was implicit in the very notion of legislation; the Constitution-makers would not have needed to create a specific clause if delegation were assumed. Parliament, as a subject listed in the Union List, clearly had authority to legislate on the “Supreme Court.” Article 145 paragraph one sub-clause (a) further rejected the Attorney-General’s contention by authorising the Supreme Court to make rules concerning the persons practising before it, subject however to any law that Parliament might enact. In effect, Parliament possessed an express power to either withdraw or augment that rule-making authority by passing appropriate legislation.

In the judgment, it was observed that a statutory provision permitting Parliament to delegate legislative authority is unusual in a constitution where such delegation is generally presumed to be inherent. The Constitution, however, makes specific arrangements for the appointment of High Court judges under article 217 and grants rule-making powers to High Courts through article 227. Article 243 authorises the President to issue regulations for the peace and good government of territories listed in Part D of the First Schedule, and in exercising that authority the President may repeal or amend any law made by Parliament or any existing enactment. The Constitution itself delegates parliamentary powers to the President whenever it deems such delegation necessary. Articles 245 and 246 delineate the respective legislative fields of Parliament and the State legislatures, while article 248 reserves the residuary legislative powers for Parliament. Article 250 provides for emergency situations, whereby Parliament acquires authority to legislate throughout India or in any part thereof on matters enumerated in the State lists. Article 252 is a distinctive provision that allows Parliament to legislate for two or more States with the consent of those States; this represents a form of parliamentary legislative power exercised as a delegate of the States, and consent alone confers upon Parliament the power to legislate. By article 258 the President, with the concurrence of a State government, may conditionally or unconditionally entrust that State government or its officers with functions relating to any matter within the Union’s executive jurisdiction, and the article also contemplates delegation of powers by a parliamentary enactment. Article 349 limits Parliament’s authority to enact language-related laws. Article 353 explains the effect of an emergency proclamation, stating that the Union’s executive power in such a case includes the power to issue directions to any State regarding the manner in which the State’s executive power is to be exercised. Clause two of this article is particularly significant because it asserts that Parliament’s power to legislate on any matter includes the power to enact laws that confer powers, impose duties, or authorise the conferring of powers and the imposition of duties upon the Union, its officers, or its authorities with respect to that matter, even if the matter does not appear in the Union List. In an emergency under article 250, Parliament enjoys full authority to legislate on subjects listed in the State List and may, in principle, delegate that authority if it forms part of legislative power; however, the framers of the Constitution thought otherwise and incorporated an explicit provision for the delegation of power in such circumstances.

In the case the Court explained that Article 357 of the Constitution allowed Parliament, when a proclamation under clause (1) of article 356 declared that a State’s legislature would act under Parliament’s authority, to give the President the power to legislate for that State. The provision also permitted the President to delegate, subject to conditions he deemed appropriate, the legislative power he received to any other authority that the President might specify. The Court noted that this article was the only constitutional source that expressly authorized delegation of essential legislative power. It was suggested that the framers had intended, for such an emergency situation, that Parliament be able to vest legislative authority on the executive and thus endow the President with legislative capacity in the State field, while also allowing the President to further delegate that power to a body or person of his choosing. The Court then referred to the entries in the three Lists of the Seventh Schedule to illustrate the point. Entry 93 of List I dealt with offences against laws relating to any matter in that List; entry 94 concerned inquiries, surveys and statistics for purposes of any matter in the List; entry 95 related to the jurisdiction and powers of all courts except the Supreme Court concerning any matter in the List; and entry 96 covered fees in respect of any matter in the List, excluding court fees. The Court observed that these entries represented subjects that were incidental and ancillary to the principal subjects of legislation contained in the List, and similar incidental entries appeared in Lists II and III. It concluded that the Constitution deliberately granted legislative power in explicit terms even for such ancillary matters, making it unnecessary to read into the Constitution by implication any powers that were not expressly provided. The Court expressed satisfaction that the Constitution-makers had considered every aspect of delegation—executive, legislative, and judicial—and had provided for it in detail wherever they deemed it necessary. Consequently, the Court held that there was no room for the doctrine advocated by the learned Attorney-General. In the absence of an express constitutional power of delegation, Parliament could not delegate its essential legislative functions to other bodies, whether State legislatures or executive authorities, except for functions that were truly ministerial in nature. The Court emphasized that the constitutional scheme and the Government of India Act, 1935, had explicitly assigned legislative capacity to certain bodies and persons and had permitted the creation of law-making bodies only where expressly authorized, without granting power to create a new law-making body not foreseen by the Constitution.

It was observed that the Constitution did not permit the creation of a law-making body by delegation where such a body had not been expressly established by the Constitution itself. In fact, the Constitution even allowed the executive to exercise legislative functions in certain limited contingencies, but this exception could not be used to enlarge the list of legislative authorities by a process of delegation. As Crawford explains in his work on statutory construction (page 333), when a statute enumerates the matters on which it is intended to operate, everything else is by implication excluded from its operation and effect. Accordingly, if a statute directs particular acts to be performed in a specified manner by named persons, any performance of those acts in a different manner or by any other person is implicitly prohibited. The ordinary rule follows that when authority is granted expressly by affirmative words upon a defined condition, the very expression of that condition excludes the performance of the authorized act under any other circumstances. Under the Government of India Act 1935, the executive enjoyed a broader legislative power than the new Constitution now permits, and that power appears to have been curtailed to some extent. The new Constitution confers upon Parliament the authority to enact laws for the State of Delhi and also empowers Parliament to create a legislature for that State. Thus, the Constitution has already identified adequately the bodies competent to make laws for Delhi. In the Court’s opinion, delegating essential legislative power to the executive is therefore unconstitutional. Any legislative practice that was followed in the pre-Constitution era for undeveloped or excluded territories bears no relevance to the determination of this issue. After reviewing the provisions of the new Constitution, the Court also examined the constitutional position of the Indian legislature under the Indian Councils Act 1861 and under the Government of India Act 1935, as later adapted by the Indian Independence Act 1947. As previously noted, the Government of India Act 1935 envisaged a federal constitution for India with a clear demarcation of legislative fields between the Federation and the States, and the scheme of that Act has been adopted in the new Constitution. The Court expressed respectful agreement with the view of Varadachariar J. in the case of Benoari Lal Sarrna (1) [1943] F.C.R. 96, that the constitutional position under that Act more closely resembles the American model than the English model, and that delegation of legislative power in its essential form is not permitted by its provisions. During a period of emergency, the Governor-General could, by his own proclamation, assume both executive and legislative roles, but the mere convenience of administration was not a compelling reason to imply, within the scheme of the Act, that Parliament possessed authority to delegate essential legislative power. The Act also contains detailed provisions authorising delegation of power in both the executive and legislative domains wherever such delegation was considered necessary.

The Court explained that the Indian Independence Act, in its section 6, granted the Dominion Parliament the authority to legislate within the scope provided by the Government of India Act 1935. Additional provisions of the Independence Act declared the Dominion Parliament to be a constituent assembly empowered to frame a new constitution for India and also authorized it to repeal existing Acts of Parliament. For ordinary legislative purposes, the Dominion Parliament exercised the same powers that Indian legislatures possessed under the Government of India Act 1935, and therefore the question concerning the Ajmer-Merwara Act 1947 had to be decided according to the constitutional provisions contained in the Constitution Act 1935. The Court then briefly outlined the constitutional situation that existed in India before the 1935 Act. Prior to the Charter Act 1833, legislative authority was divided between the Governor-General and the Presidencies. The 1833 Charter abolished the legislative powers of the Presidencies and consolidated all law-making authority in the Governor-General in Council. Although Mr Macaulay was appointed as a legislative member of the executive council, he was not given a vote, so the executive and legislative functions were effectively performed by the same body, assisted by Mr Macaulay’s counsel. With only minor adjustments this arrangement continued until the Indian Councils Act 1861. Under that Act the Governor-General in Council could legislate for the entirety of India in legislative meetings, while provincial legislatures were also permitted to make laws for their respective provinces. Section 10 of the 1861 Act vested legislative power in the Governor-General in Council, and section 15 prescribed the manner of exercising that power. Section 18 gave the Governor-General authority to formulate rules for conducting legislative business. Section 22 defined the extent of the legislative power, and section 23 empowered the Governor-General, in emergencies, to issue ordinances. Section 44 authorized the Governor-General to establish local legislatures and to confer legislative authority upon them. The scheme of the Councils Act, as interpreted, required that whenever Parliament intended the Governor-General in Council to have the capacity to create legislatures or to frame rules and regulations, that capacity had to be expressly conferred. A further statute of 1870 granted the Governor-General, in his executive role, a summary power to legislate for less developed areas, that is, the non-regulated provinces. The Court noted that no additional charter was necessary only if the Governor-General could acquire legislative power through delegation from his own council. In the Court’s opinion, the constitution envisioned by the Indian Councils Act 1861 did not permit the essential legislative power to be delegated by any of the legislative bodies created under that Act to the executive, and this lack of delegation authority formed the basis for the Privy Council’s earlier rulings.

In the case of Burgh’s case the Court did not rely on the argument that the legislation was invalid because of an improper delegation of legislative power; rather, it upheld the enactment as valid on the basis that it was conditional legislation. The author expressed respectful agreement with the judgment of Markby J. delivered in 1877, which had stated that any substantial delegation of legislative authority by the legislature of this country was void. The Privy Council, when hearing the appeal, did not dissent from that position. It was submitted that long-standing legislative practice in India had consistently validated statutes that were drafted on the same model as the three statutes referred to in the present proceedings. Reference was made to the observations in United States v. Curiss Wright, wherein it was observed that a uniform, long-continued, and undisputed legislative practice founded on an admissible view of the constitution strongly supported the constitutionality of the practice. In the author’s view, however, there was no evidence in the present record of any such uniform, long-continued, and undisputed legislative practice that would validate statutes drafted in the manner of the statutes under consideration. The material upon which the argument relied was extremely scant and did not justify the conclusion that had been advanced. Annexure A, which was filed on behalf of the President, cited only two instances of the alleged long-standing practice occurring before 1912, and even those instances were not comparable to the statutes in question because the scheme of those enactments on vital matters differed from the scheme of the Delhi Laws Act.

The first instance identified concerned section 5(a) that was inserted into the Scheduled Districts Act, 1874 by Act XII of 1891. That provision authorized the Local Government, after obtaining prior sanction from the Governor-General in Council for declaring an enactment to be in force in scheduled districts or for extending an enactment to a scheduled district, to declare the application of the Act subject to any restrictions and modifications that the Government deemed appropriate. It was noted 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 acted as the real authority in both capacities. Consequently, if prior sanction of this authority was required before a law could be declared, even with modifications, that circumstance could not be taken as establishing a legislative practice that would support the enactment of section 7 of the Delhi Laws Act. The second instance cited was the Burma Laws Act, 1898. Section 10 of that Act provided that the Local Government, with prior sanction of the Governor-General in Council by notification, could, with such restrictions and modifications as it thought fit, extend certain Acts in force in any part of Upper Burma at the date of the extension to specified areas, and section 4 contained a schedule of all Acts then in force in Upper Burma. This example likewise failed to furnish evidence of a legislative practice that would validate section 7 of the Delhi Laws Act, because the Delhi Laws Act lacked both a provision comparable to section 4 of the Burma Laws Act and a requirement for prior sanction akin to that in section 5(a) of the Scheduled Districts Act. Between 1861 and 1912, a span of more than fifty years, only these two instances, occurring within seven years of each other, could not satisfy the criterion articulated in the cited United States case.

The Court observed that the Burma Laws Act of 1898 authorised the Governor-General in Council, after obtaining prior sanction and by means of a notification, to extend certain statutes that were applicable in any part of Upper Burma at the date of the extension to designated areas, subject to any restrictions and modifications deemed appropriate. Section 4 of that Act, the Court noted, contained a schedule listing all statutes that were then in force throughout Upper Burma. The Court held that this provision did not provide any evidence of a legislative practice that could support the validity of section 7 of the Delhi Laws Act, because the Delhi legislation lacked both a schedule similar to that in section 4 of the Burma Laws Act and a requirement for prior sanction of the Governor-General in Council comparable to the condition found in section 5(a) of the Scheduled Districts Act. Both of these essential features were absent from the Delhi Laws Act.

Turning to the historical record, the Court noted that between 1861 and 1912—a span of more than fifty years—only two instances of the kind discussed occurred, and those two fell within a seven-year period. The Court concluded that these two examples could not satisfy the criterion for a consistent legislative practice as articulated in the earlier authority. After 1912, the Court identified three further illustrations. The first involved sections 68 and 73 of the Inland Steam Vessels Act, 1917, which authorised the modification of a enactment for the purpose of adaptation; however, the Court stressed that this was not an example of legislation comparable to section 7 of the Delhi Laws Act of 1912 or to the provision in the Ajmer-Merwara Act, 1947. Section 68 specifically permitted the extension of certain chapters to designated areas with modifications. The second illustration was found in section 9 of the Cantonments Act, 1924, which allowed the Central Government, by notification, either to exclude any part of the Act from applying to a cantonment or to direct that any provision of the Act apply in a cantonment with specified modifications. The third illustration concerned section 30 of the Petroleum Act, 1934, which enabled the Central Government, again by notification, to apply all or any provisions of that Act to any other dangerous inflammable substance, with such modifications as deemed fit, thereby adding items to the schedule annexed to the Act.

Collectively, these three examples, occurring between 1917 and 1934—a period of seventeen years—demonstrated legislative measures that bore some resemblance to the scheme contemplated in the Delhi Laws Act, yet they were not of the same character. Consequently, the Court concluded that no uniform legislative practice could be inferred from these instances. Finally, the Court recorded that counsel appearing for the Government of Uttar Pradesh submitted a note citing the Uttar Pradesh Land Revenue Act, 1901 (Act III). Section 1 of subsection (2) of that Act authorised the State Government, by notification, to extend the whole or any part of the Act to any area, subject to any exceptions or modifications the Government deemed appropriate. The Court noted that this particular instance did not materially affect the overall analysis.

The Court observed that the provision allowing “all or any of the areas so excepted subject to such exceptions or modifications as it thinks fit” did not materially affect the question before it. After a fortnight of research, the Attorney-General supplied a supplementary list of authorities to support his argument. Two of those authorities were sections 8 and 9 of Act XXII of 1869, which had been examined in Burah’s case. A third authority was section 39 of Act XXIII of 1861, also considered in that case and already discussed earlier in the judgment. The only genuinely new authority cited was the Aircraft Act of 1934; that statute merely permitted alteration of an aircraft’s specifications and did not confer any power to amend a law. Two further authorities came from the Airforce Act 1950, but those were enacted after the legislation under review and therefore could not be regarded as relevant. The final authority was the Madras Local Boards Act 1920, which empowered the Governor to extend that Act with certain modifications to areas to which it had not originally applied. Since the 1920 enactment post-dated the 1912 provision whose validity was under scrutiny, the Court found it irrelevant to the determination of section 7 of the 1912 Act.

The Court then turned to an authority that at first sight appeared comparable to section 7 of the Delhi Laws Act: section 8 of Act XXII of 1869, which had been considered by the Privy Council in Burah’s case. Upon close examination, the Court concluded that this provision bore no real similarity to the 1912 provision. Act XXII of 1869 was enacted solely to remove the Garo Hills from the jurisdiction of tribunals created under the General Regulations. Section 5 vested the administration of that territory in officers appointed by the Lieutenant-Governor of Bengal, who were required to act under his control and instructions, thereby placing the executive administration of the area in the Lieutenant-Governor’s hands. Section 8, already cited, authorized the Lieutenant-Governor, by notification in the Calcutta Gazette, to extend to the excluded territories any laws presently in force in other territories under his government, or any laws that might subsequently be enacted by the Governor-General in Council or by the Lieutenant-Governor himself with respect to those territories. Both the Governor-General in Council and the Lieutenant-Governor possessed competence to legislate for the province of Bengal. The Court noted that the validity of section 8 was not challenged in Burah’s case and no argument was presented concerning it. Nevertheless, the judgment of the Privy Council contained observations that the Court found noteworthy and reiterated before it: “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 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 Court concluded that those observations merely indicated that a law made by a competent legislature for one territory could, by notification, be applied to another territory under the same governmental authority, a principle that did not support the validity of section 7 of the 1912 Act.

In the earlier discussion, the Court observed that the authorities appointed by and answerable to the Lieutenant-Governor of Bengal were to carry out the change at a time to be determined by the Lieutenant-Governor himself. The provision also empowered the Lieutenant-Governor, not to create new laws for that district or any other district, but to apply, by means of a public notification, any law or portion of a law that either already existed or might later come into force under proper legislative authority in the other territories under his government. The legislature therefore resolved that a particular alteration should be effected, but that it was advisable to leave both the timing and the manner of implementation to the discretion of the Lieutenant-Governor. Moreover, the legislature considered that the statutes already in force, or those that might become operative, in the other territories governed by the same administration were appropriate to be applied to the excluded district as well.

These observations, taken together, mean that a law that had been enacted by a competent legislature for the territory within its jurisdiction could be extended to a district that had been excluded for certain purposes, provided that the Lieutenant-Governor issued a notification to that effect. It had already been pointed out that the Lieutenant-Governor possessed the authority to make laws for the whole province of Bengal, and that the Governor-General in Council likewise held such power. Consequently, once a law had been validly made by a competent legislature for the territory over which it had authority, the only remaining power of the Governor-General was to extend that legislation to an excluded area. The Court noted, however, that this was not the approach adopted by the Delhi Laws Act.

The Court explained that section 7 of the Delhi Laws Act authorized the Governor-General, in his executive capacity, to extend to Delhi statutes that had been made by legislatures which did not have jurisdiction or competence to legislate for Delhi. After setting out the principles that would guide the answers to the questions referred to the Court, the judgment turned to the first question, which concerned the validity of section 7 of the Delhi Laws Act, 1912, in whole or in part. The section, as 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 is in force in any part of British India at the date of such notification.” This wording gave the Governor-General unrestricted authority to extend to the newly formed province any enactment that was in force in any part of British India on the date of the notification, and it did not limit the extension to enactments that were in force at the time the Delhi Laws Act was passed. The Act did not include a schedule annexing the specific enactments that were in force in any part of British India at the date of the notification.

In this part of the judgment the Court observed that when the Delhi Laws Act was passed, the provision allowing the Governor-General to extend any enactment that was in force in any part of British India at the date of a later notification could not be based on any knowledge of which laws would actually be in force at the time of such a notification. The Court pointed out that statutes that might be enacted after 1912 could not have been foreseen by the legislature that had drafted section 7, and therefore the legislature could not have exercised any judgment or discretion with respect to those future statutes. Moreover, the provision gave the Governor-General the authority not only to apply existing statutes but also to modify both existing and future enactments that might be passed by various legislatures throughout the country. The Court explained that the power to modify necessarily includes the power to amend those statutes. Quoting the language of a learned Judge, the Court described the authority conferred on the Governor-General as vague, broad, unstructured and without clear limits. No clause in section 7 required that the legislative intention of the Delhi legislature be taken into account when the Governor-General made amendments to statutes passed by other legislatures and extended to Delhi.

To illustrate the practical difficulties, the Court noted that many different rent-control Acts had been enacted by various state legislatures, each embodying distinct policies and principles. Under the Delhi Laws Act, the Provincial Government could choose to apply the policy of any one of those rent-control statutes to Delhi, or it could devise a new policy by combining provisions from several different state statutes. The Court emphasized that by 1912 no uniform legislative policy on rent control had been developed. A second illustration concerned laws on prohibition. Some state governments had adopted a policy of total prohibition, while others had permitted a local-option approach. The Court asked who would decide which policy should apply to Delhi and noted that, under section 7, the Provincial Government could unilaterally adopt any policy it wished—whether a partial or complete prohibition—without legislative guidance. Consequently, the Court concluded that the wide-ranging delegated power in section 7 allowed the executive to perform essential legislative functions, effectively making the Governor-General the legislature for Delhi. By enacting section 7, the legislature had, in the Court’s view, abdicated its own legislative authority in favour of the executive, a step that was not supported by the Indian Councils Act 1861, any Privy Council decision, or established legislative practice. Accordingly, the Court held that section 7 was ultra vires the Indian Councils Act 1861 in two respects: first, because it permitted the executive to apply to Delhi laws enacted by legislatures that were not empowered to legislate for Delhi; and second, because it endowed the executive with legislative authority that was co-extensive with that of the legislature in the matter of modifying laws made by other legislative bodies in India.

The Court observed that section 7 of the Delhi Laws Act authorised the executive to modify statutes that had been enacted by legislative bodies throughout India. The Court noted that, had the Act been accompanied by a schedule listing the existing statutes that had been passed by the Governor-General in Council in his legislative capacity, together with statutes adopted by other legislatures, then the delegation of authority might have been permissible, provided it did not also grant the executive the power to amend those statutes. The Court stressed, however, that this was not the situation created by section 7. The provision went further than a mere delegation of authority to apply existing statutes; it allowed the Governor-General in Council to alter the substance of future statutes that might be passed by any legislative body, extending them to Delhi with modifications of its own choosing. The Court explained that such a power to extend statutes that might be enacted in the future by the Governor-General in Council for the whole of India, or to adopt statutes later passed by other legislatures, would still be within the scope of the Constitution, but the legislature could not lawfully go beyond that limit. In effect, the Court said, section 7 conferred on the Governor-General in Council the authority to decide, without any policy of its own, which laws would apply in Delhi and to determine the content of those laws. The Court then turned to the second issue, which concerned section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947. That provision allowed the Central Government, by a notification in the Official Gazette, to extend to the province of Ajmer-Merwara any enactment that was then in force in any other province, and to do so with such restrictions and modifications as it thought appropriate.

Having established the reasoning for declaring section 7 ultra vires the Constitution in two respects, the Court held that section 2 of the Ajmer-Merwara Act was likewise ultra vires the Government of India Act, 1935 on the same grounds. The provision did not itself create any new law; rather, it gave the Central Government the power to decide what the law would be. By permitting the selection of any enactment that existed in any province at the date of the notification, the provision demonstrated that the legislature had made no determinations of principles or policies concerning the subject matter of the law. The Court noted that under the 1935 Act each province possessed the exclusive authority to formulate its own policies with respect to matters within its legislative field. Consequently, the question of which policy should apply to Delhi—whether the policy of Punjab or that of Bombay—was left to the Central Government rather than being settled by a legislative body responsible for Delhi. To illustrate the mischief that could result from such a power, the Court referred to the extension of the Bombay Agricultural Debtors’ Relief Act, 1947, to Ajmer-Merwara under section 2. By exercising the power of modification, the definition of the word “debtor” was altered, thereby changing the entire policy of the Bombay Act. Under the original Bombay legislation a “debtor” was a person who owed money and whose annual non-agricultural income did not exceed either thirty-three per cent of his total annual income or Rs 500, whichever was greater. In the amended version applied to Ajmer-Merwara, the term “debtor” was redefined to mean an agriculturist who owed a debt, and the accompanying income threshold of Rs 500 was removed. This alteration, the Court said, 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 term “agriculturist” was defined to mean a person whose livelihood is derived from agriculture and whose income from that source exceeds sixty-six per cent of his total income. The earlier external ceiling of five hundred rupees was eliminated. The Court observed that exercising the power to alter the definition in this way amounted to the making of a new law by a body that the Constitution did not envisage and that had no authority to enact legislation. In brief, the question posed was whether, under the 1935 Act, the Indian legislature could enable the executive to extend to Delhi any law that might later be enacted by a legislature in a foreign jurisdiction such as Timbuctoo or Soviet Russia, with appropriate modifications. The Court answered in the negative, holding that the policy content of such foreign statutes could never be ascertained by the authority entrusted with law-making for Delhi. Consequently, the provincial legislatures as they stood under the Constitution Act of 1935, with respect to Delhi, occupied no better constitutional position than the legislatures of Timbuctoo or Soviet Russia, even though the latter were situated in different geographical and political circumstances.

The third issue involved section 2 of the Part C States (Laws) Act, 1950, which 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 thereof, with any restrictions or modifications it deems appropriate, any enactment that is in force in a Part A State on the date of the notification, and that provision may be made in any such extended enactment for the repeal or amendment of any corresponding law (other than a Central Act) presently applicable to that Part C State. For the reasons that were earlier given in answering the first two questions—namely that the enactments in question are ultra vires of the Constitution—the Court reached a similar conclusion on this point. It was noted, however, that the statute expressly authorized the Central Government to repeal or amend laws already operating in Part C States. Such power to repeal or amend can only be exercised by an entity that possesses the authority to make laws and is co-ordinate and co-extensive with the legislative power itself. By vesting this capacity in the Central Government and thereby granting it the same competence as the legislature, Parliament had acted unconstitutionally. While delivering its opinion, the Court proceeded with great caution, mindful of the principle that any doubt regarding the constitutional validity of a statute should be resolved in favour of legislative action. Nevertheless, the Court observed that the legislative measures under scrutiny were of such a broad, sweeping, and indefinite character in their full scope that it could not be said that they were constitutionally valid in every particular circumstance.

Justice Mukherjea recorded that the President of India had invoked article 143(1) of the Constitution to ask the Supreme Court to give an advisory opinion on three specific questions. The first question asked whether section 7 of the Delhi Laws Act 1912, or any part of that provision, was beyond the authority of the legislature that enacted it, and if so, in exactly what respects it exceeded that authority. The second question sought to determine whether the Ajmer-Merwara (Extension of Laws) Act 1947, or any of its clauses, was ultra vires the legislature that passed it, and again to specify the precise aspects in which it might be unlawful. The third question concerned section 2 of the Part C States (Laws) Act 1950, asking whether that section or any of its provisions was beyond the competence of Parliament, and requesting a detailed identification of the particular points of excess. The Court explained that the request for an advisory opinion arose because a decision of the Federal Court in Jatindra Nath Gupta v. The Province of Bihar had held that a proviso to subsection (3) of section 1 of the Bihar Maintenance of Public Order Act 1947 was ultra vires the Bihar Provincial Legislature, on the ground that it amounted to an improper delegation of legislative power to an external authority. That precedent had created doubts about the validity of the three enactments now under consideration, and the legality of the first two statutes was actively being contested in pending proceedings before various High Courts in India. The Delhi Laws Act 1912, the earliest of the statutes mentioned, had been passed in 1912 by the Governor-General in Council sitting as the legislative body for British India, empowered by the Indian Councils Acts of 1861 to 1909. At that time Delhi had been part of the Punjab Province, but on 17 September 1912 it was constituted as a Chief Commissioner’s Province, and the very next 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, which is the subject of the present controversy, reads: “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 Ajmer-Merwara (Extension of Laws) Act had been enacted on 31 December 1947 by the Dominion Legislature of India under the Government of India Act 1935, as adapted by the Indian Independence Act 1947. Section 2 of that Act states: “2. ‘Extension of enactments …’.”

Section 2 of the Ajmer-Merwara (Extension of Laws) Act therefore provides that the Central Government may, by a 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 Part C States (Laws) Act, 1950, enacted by the Parliament after the Constitution of India came into force, contains a similar provision. Section 2 of that Act declares: “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 is evident that in each of the three statutes mentioned, the legislatures that enacted them conferred upon an external authority – namely the Central Government – a portion of the legislative power that those legislatures themselves possessed. The delegated authority was not only empowered to extend laws that were already operating in other parts of India to the designated territories, but also to introduce any restrictions or modifications that it deemed appropriate. The dispute before the Court therefore centred on whether such delegation of legislative power fell within the competence of the respective legislature that passed the statutes. The Attorney-General, appearing on behalf of the President of India, argued that a legislature that is competent to legislate on a particular subject also possesses the competence to delegate its legislative powers concerning that subject to any agent or external authority it considers suitable. According to that submission, the extent and manner of such delegation is a matter wholly for the legislature’s consideration, and a court has no jurisdiction to interfere. The Attorney-General identified only two possible limitations on this delegatory power. First, a legislature may not abdicate or surrender its powers entirely, nor may it create a new legislative power that is not authorised by the constitutional instrument. Second, where the Constitution distributes powers among different legislative bodies, one legislature cannot delegate to another powers that the Constitution has vested exclusively in it. Apart from these two constraints, the Attorney-General contended that the doctrine of inhibition of delegation by legislative authority has no further application.

The Court observed that a Constitution based on the English model does not contain any prohibition against delegating legislative authority, even though it does not adopt the American principle of separation of powers. The Court emphasized that these issues are of considerable constitutional significance and therefore merit careful examination. In the United States, the rule that prevents delegation of legislative powers stems chiefly from the traditional American doctrine of separation of powers. A second principle supporting that rule is the well-known private-law maxim “delegatus non potest delegare,” which derives its authority from one of the dicta of Sir Edward Coke. The modern doctrine of separation of powers emerged as a major tenet of eighteenth-century political philosophy. Montesquieu elaborated it in his work “L’esprit des lois” as an explanation of English political doctrine, and the American framers, at least in theory, adopted it in its full and rigid form. The Constitution of the United States therefore divides governmental power into three basic branches—the executive, the legislative, and the judicial—and allocates to each branch the powers appropriate to that branch, vesting those powers in a distinct body of public officers. It is regarded as an essential principle (1) underlying the Constitution that a power assigned to one branch must be exercised exclusively by that branch and must not intrude upon the powers assigned to the others. As Cooley has remarked, “The different classes of power have been apportioned to different departments; 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.” Another doctrine invoked to support the anti-delegation rule is the well-accepted principle of municipal law, which bars a person who has been granted a power or mandate from delegating that power to another individual. The legislature is considered a delegate of the people, who are the ultimate source of all authority, and therefore it is deemed unable to transfer those powers to any other authority. Although these doctrines are well recognised in theory, their practical application is restricted and limited. Justice Story observed (3) that the maxim concerning the separation of the three great departments of government should be understood in a limited sense. He explained that it does not require that the branches be kept wholly and entirely separate and distinct with no connection or dependence whatsoever. Rather, the true meaning is that the entire power of one department should not be exercised by the same hands that possess the entire power of either of the other departments, because such concentration would undermine the principles of a free constitution.

In this discussion, the Court noted that the maxim delegatus non potest delegare originated from a different theoretical basis than the doctrine of separation of powers, but for practical purposes the two doctrines were linked and employed as arguments against Congress attempting to give legislative powers to another authority. According to Willis, the disability of Congress to delegate its legislative powers to the executive was said to rest on the doctrine of separation of powers, while its incapacity to bestow authority on an independent body such as a Board or Commission was said to rest on the maxim delegatus non potest delegare(1). The Court observed that from early times a considerable degree of flexibility had been allowed in the practical application of these theories. The Court pointed out that the immense complexities of modern social and economic conditions, together with the ever-growing amount of complicated legislation required by progressive social needs, made it practically impossible for a legislature to provide rules that were complete in every detail. Consequently, some form of delegation had become indispensable for making the law more effective and adaptable to the varying needs of society. The Court then turned to the experience of the United States, noting that despite the theoretical prohibition on delegating legislative power, numerous rules and regulations were enacted by non-legislative bodies exercising authority conferred on them by the legislature in one form or another. The Court explained that the legislature had long been considered competent to create municipal authorities and to empower them to make by-laws, a practice rooted in the ancient Anglo-Saxon custom of leaving each local community to manage its own affairs. The Court further observed that Congress could authorize a public officer to make regulations, or could permit judges to frame procedural rules that bound parties as if they were statutes. Congress could also authorize another body to determine the conditions under which a statute would become operative, and could empower administrative officials to ascertain facts and apply standards. Referring to Cardozo, J.’s dissent in Panama Refining Company v. Ryan(1), the Court quoted 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”. The Court added that the rule of non-delegation possessed many exceptions, citing a well-known writer of constitutional law who had remarked briefly that it was difficult to decide whether the dogma or the exceptions correctly expressed the rule(2). The Court concluded that there was no serious dispute that, strictly speaking, the doctrine of separation of powers has, no

In examining where the doctrine fits within the structure of government that India possesses today under its own Constitution, as well as the structure that existed during British rule, the Court observed that the Indian Constitution differs from the American and Australian Constitutions because it does not explicitly assign the separate categories of power to distinct organs of the State. Article 53(1) vests the executive authority in the President, but the Constitution contains no comparable provision that expressly vests legislative power or judicial power in any other organ. Although the Constitution is federal in character, it is fashioned after the British parliamentary model, whose central feature is that the executive remains accountable to the legislature. Accordingly, the President, as the head of the executive, must act on the advice of the Council of Ministers; this Council, like the British Cabinet, functions as “a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part.” (See United States v. Panama Refining Co., 293 U.S. 388 at 440; see Willis on Constitutional Law, p. 137.)

The Court noted that in 1912, when the Delhi Laws Act of 1912 was enacted, there could 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 entirely absent. The Governor-General’s Executive Council, together with sixty additional members—thirty-three of whom were nominated—formed the Governor-General’s Legislative Council, which possessed the authority to legislate for the whole of British India. Provincial legislatures were created in a similar fashion. The first move toward responsible government came with the Government of India Act, 1919, which introduced dyarchy in the provinces. The Government of India Act, 1935, later established provincial autonomy and created ministerial responsibility in the provinces, although certain powers remained reserved to the Governor. At the centre, responsibility remained limited; apart from the discretionary powers of the Governor-General, defence and external affairs were kept outside the reach of ministerial and legislative control.

Consequently, the Court concluded that throughout the various constitutional arrangements that have existed in India since the commencement of British rule, there has never been a strict or institutional separation of powers comparable to that found in the United States. The maxim “delegatus non potest delegare,” often described as a rule of agency law, has a broader reach and is employed in many areas of law as a doctrine that bars a person who has been entrusted with a duty, office, or trust from delegating those duties or powers to another. While the Court acknowledged that importing this maxim into constitutional discourse is not wholly unwarranted, it also recognized that the maxim’s foundation rests on a politically uncertain doctrine.

The Court observed that for the maxim delegatus non potest delegare to operate, the body that seeks to transfer a power must itself be a delegate of a higher authority. In the present Indian constitutional framework, the legislature is undeniably a creation of the Constitution of India, which both enumerates its powers and sets out its duties, and the Constitution is itself an instrument granted by the people of India to themselves. Nevertheless, the Court rejected the proposition that the legislature functions merely as a delegate of the people. That proposition, which had been popularised by the political philosophy of Locke and praised by early American writers, has fallen out of favour in contemporary political thought. Turning to the historical situation of the Indian legislature under the British regime, the Court noted that the Judicial Committee had definitively ruled in the well-known case of Queen v. Burah that the legislature created by the Indian Councils Act was in no sense a delegate of the British Parliament.

In Queen v. Burah the question before the Judicial Committee concerned the validity of section 9 of Act XXII of 1869, which had been passed by the Governor-General’s Legislative Council. That provision authorised certain special statutes, which removed the jurisdiction of the High Court, to apply to a specific district known as the Garo Hills, and further allowed the Lieutenant-Governor of Bengal, by publishing a notice in the Calcutta Gazette, to extend the operation of those statutes to additional areas whenever he deemed it appropriate. The Calcutta High Court, by a majority, had upheld the respondent Burah’s contention that the power conferred on the Lieutenant-Governor to extend the Act exceeded the authority of the Governor-General in Council. One of the judges of that court, in support of the view, relied, among other authorities, on the principles of agency law. The Judicial Committee, however, rejected that view. Lord Selborne, delivering the judgment, explained that “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.” The Court further noted that the Judicial Committee expressed essentially the same reasoning in Hodge v. The Queen, describing the position of the Provincial Legislature under the Canadian Constitution and emphasizing the plenitude of power that such a legislature could exercise so long as it remained within the limits prescribed by the Imperial Parliament. Finally, the Court admitted that the doctrine of separation of powers would not assist in resolving the issues presented in the present case.

The Court noted that the maxim “delegatus non potest delegare” should not be given excessive weight, although the saying does reflect a general principle that is not irrelevant to the matter before the Court. Nevertheless, the Court could not agree with the broad statement made by the learned Attorney-General that a legislative power, by its very nature, includes a right for the legislative body to delegate the exercise of that power in any manner it chooses 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 as plenary as that of the British Parliament, and that, provided the subject-matter of legislation falls within the legislature’s competence, the Indian legislature could, through an agent, do anything that it could do itself.

The Court observed that, as far as the British Parliament is concerned, no constitutional limitation exists on its authority or power. In the words of Sir Edward Coke, reported in Sir App. Cas. 117, “the power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds… it hath sovereign and uncontrollable authority in the making, confirming, enlarging, abrogating, repealing, reviving and expounding of laws… this being the place where that absolute despotic power which must in all governments reside somewhere is entrusted by the constitution of these kingdoms.” The Court explained that the British Parliament may legislate on any subject it wishes and may alter or repeal any law it wishes; moreover, being both a legislative and a constituent assembly, it may change and modify so-called constitutional laws in the same manner as ordinary statutes, and no act of that Parliament can be held unconstitutional by a British court.

The Court further stated that this sovereign character could not be attributed to the Legislative Council of British India, which was created under the Indian Councils Act, even though that Council possessed very wide legislative powers and could, within its authority, pass laws of comparable importance to those of the British Parliament. The Court also highlighted that the present-day Indian Parliament, being a creature of the Indian Constitution, must exercise its legislative powers within the limits laid down by that Constitution. Acting in its ordinary legislative capacity, the Indian Parliament cannot exceed the Constitution, cannot alter any constitutional or fundamental law, and its enactments may always be subject to judicial scrutiny. The Court emphasized that this distinction has great constitutional significance and materially affects the issue under consideration. Finally, the Court recorded that the learned Attorney-General’s substantive contention was that the power to delegate legislative authority may be exercised without any limitation as to its extent.

The author first cited Coke’s Fourth Institute, page 36, and then Dicey’s Law of the Constitution, page 88 of the ninth edition, followed by Dicey’s Law of the Constitution, page 99 of the same edition, to support the proposition that the power of delegation is implicit in the exercise of legislative authority. In support of this proposition the author referred to the unfettered rights of delegation that are exercised by the British Parliament. However, the author observed that the question of whether a delegation of legislative power by the British Parliament is valid or invalid cannot be framed as a constitutional question in the United Kingdom, because the Parliament there is regarded as an omnipotent sovereign body that may do anything it wishes, and no court can entertain a challenge to the constitutionality of its acts. Consequently, the mere fact that the British Parliament exercises unlimited rights of delegation with respect to its legislative powers does not imply that such a right of delegation is an inseparable part of the legislative power itself. The author explained that in England, irrespective of which department of the powers exercisable by Parliament the delegation of legislative authority is attributed to, and notwithstanding the undisputed fact that all sovereign powers reside in Parliament, no objection may be raised to the legality of the exercise of that delegation. In contrast, the author emphasized that the situation in India is different even today. Because India possesses a written Constitution that defines and limits the rights of the legislature, the question of whether the right of delegation—whether limited or unlimited—is included within, and forms an integral component of, the right of legislation must be answered by a proper interpretation of the Constitution’s own terms. The author stated that it is unnecessary to refer to the American doctrine of separation of powers; instead, the analysis must focus on the express language of the Indian Constitution and the essential principles underlying the law-making process that the Constitution envisages. According to the Indian Constitution, the power to make laws may be exercised by the Union Parliament or by a State Legislature, each of which must be constituted in the manner prescribed, and the legislative process is described in detail in various articles. The Constitution also confers specific powers on the President, under Articles 107, 111, 123 and related provisions, and on the Governor of a State under Article 213, to promulgate Ordinances when the respective legislatures are in recess. Additional provisions exist for the President to exercise legislative powers during a proclaimed emergency and with respect to territories classified under Part D. The author concluded that law-making is a task of the highest importance and responsibility, and that the Constitution has entrusted this task to particular bodies selected in specified ways; consequently, the Constitution not only establishes a machinery for law-making but also regulates the methods by which it is to be exercised and supplies particular provisions governing that process.

In situations where the normal legislative procedure has been lawfully set aside, the initial assumption is that the Constitution intends the responsibility for law-making to remain mainly with the elected legislative body. The Constitution permits Parliament to give the President authority to make laws, and also allows the President, under article 357, to delegate that authority to another entity, but this power is confined to emergencies. Apart from this article, the Constitution contains no provision that expressly authorises a legislature to delegate any part of its legislative powers to another authority. A recognised rule of statutory construction states that when a statute specifies that certain acts must be performed in a particular way or by particular persons, any performance in a different manner or by other persons is implicitly prohibited (1).

Baker, in his treatise Fundamental Laws, notes that beyond the doctrine of separation of powers there are additional strong reasons why legislative power cannot be transferred. He observes that a representative government places the vital and sacred trust of voting, taxation and law-making in the hands of those elected to represent the people. Those representatives are required to use wise discretion and sound judgment, taking into account the needs of the executive and judicial branches, the capacity of taxpayers to respond, and the general welfare of the public. Consequently, it is self-evident that a responsible legislature must apply its own judgment (2).

Cooley, writing in Constitutional Law, makes a similar point, arguing that the very existence of legislative power provides a reason against its delegation. He explains that this high prerogative has been entrusted to the legislature’s own wisdom, judgment and patriotism, and that the legislature would act ultra vires if it attempted to hand over that trust to another body instead of exercising it itself.

The same reasoning applies to the legislative bodies that exercised law-making authority at the times when the Delhi Laws Act of 1912 and the Ajmer Merwara Act of 1947 were passed. Under the Indian Councils Act of 1861, the authority to make laws and regulations was expressly given to a separate body composed of the members of the Governor-General’s Council together with additional members nominated by the Governor-General for two-year terms. Originally the number of nominated members ranged from six to twelve, but later amendments increased this figure, and the Indian Councils Act of 1909 fixed the total membership at sixty, with twenty-seven elected members and the remainder nominated by the Governor-General.

The central legislative council that had been empowered by the Indian Councils Act to legislate for the entirety of British India was the primary body, while certain provinces also possessed their own local legislatures. Section 18 of the Indian Councils Act of 1861 authorised the Governor-General to formulate rules governing the conduct of business at council meetings convened for the purpose of making laws; Section 15 prescribed the quorum required for such meetings and further provided that the most senior ordinary member could preside in the absence of the Governor-General. This constituted, according to Vide Fourth Edition, p. 138, the normal process of law-making as laid down by the Indian Councils Act. Special provisions were made for exceptional cases in which the ordinary procedure could be set aside. Thus Section 23 of the 1861 Act empowered the Governor-General to issue ordinances having the force of law in cases of urgent necessity; and later, under Section 1 of the Indian Councils Act of 1870, the executive government was given the power to make regulations for particular parts of India to which the Secretary of State applied the provisions of that section. Apart from these expressly provided exceptions, none of the parliamentary Acts passed during that period suggested that any person or authority other than the Legislative Councils mentioned above could exercise legislative powers. The Ajmer-Merwara Act was passed by the Dominion Legislature 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 that exist under the present Constitution, and therefore a detailed reference to them was unnecessary. The point for consideration was whether, assuming this description of legislative authority to be correct, any delegation of legislative function—however small—could be permissible. The answer rendered was that delegation of legislative authority could be permissible only as an ancillary aid to the proper legislature’s exercise of its law-making powers, and not as a device for the legislature to relieve itself of its own essential duties by devolving them on some other agent or machinery. A constitutional power may be held to imply a power of delegation that is necessary to effect its purpose, and to that extent delegation of a power may be taken to be implicit in the exercise of that power. This follows the principle that “everything necessary to the exercise of a power is implied in the grant of the power. Everything necessary to the effective exercise of legislation must, therefore be taken to be conferred by the Constitution within that power.”(1) However, the legislature is not entitled to strip itself of its essential legislative function and vest the same in an extraneous authority.

The Court explained that a legislature could not relinquish its essential legislative function by assigning it to an external authority. It held that the primary duty of law-making must be performed by the legislature itself, and that any delegation of power could be employed only as a secondary or ancillary measure. While the Court noted that it would later refer to decisions of American courts, it emphasized that the validity of the doctrine rested on the fundamental principles embodied in the written Constitution of India. The Court further observed that law-making ought to be carried out principally by the body to which the Constitution entrusts that responsibility, although that body may engage an outside agency or machinery to assist it in performing its duties efficiently and effectively. Nevertheless, the Court warned that the legislature could not shift the constitutional responsibility it bears onto an agent or delegate, for such a shift would amount to an abdication of its own powers. In supporting the position adopted by the Attorney-General, the Court noted that the learned Attorney-General heavily relied upon observations made by the Judicial Committee in the case of Queen v. Burah (5 IA 178). Those observations, the Court said, had been reiterated in virtually identical language in several subsequent pronouncements of the Judicial Committee. The Privy Council had made those observations to correct a misconception that, for a period, some commentators believed the Indian or other Colonial legislatures were merely agents or delegates of the Imperial Parliament and thus bound to execute the latter’s mandates personally. The Privy Council clarified that such a conception was erroneous. It held that the Indian Legislature, and likewise the Colonial Parliament, could do nothing beyond the limits prescribed for them by the British Parliament, but that within those limits they were not agents of another body and possessed plenary legislative powers of the same nature as those of the Parliament itself. The Court further pointed out that the majority of the Judges of the Calcutta High Court, in Queen v. Burgh, had treated the impugned provision of Act XXII of 1869 as a delegation of legislative power, and that Mr Justice Markby had expressly relied upon the doctrine of agency in his judgment. The Privy Council, however, rejected Mr Justice Markby’s view, holding that the High Court judges had erred in their understanding of the nature and principles of legislation and that, in fact, no delegation of legislation was attempted in that case.

In this passage the Court observed that the Privy Council had held that the Indian Legislative Council possessed unrestricted authority to delegate legislative powers comparable to that of the British Parliament. The Court noted that, had that proposition been accepted, there would have been no need to examine the matter further, because the case could have been resolved simply on the basis that any delegation made by the Indian Legislative Council fell within its lawful jurisdiction. The Court expressed the view that the purpose of the Privy Council’s observations was to clarify the manner in which the Indian Legislative Council exercised its own legislative authority. It emphasized that the Council acted in its own right, not as an agent or delegate of the British Parliament. Accordingly, even if the doctrine of agency were applied, the actions of an agent would be treated as the actions 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 power, and not acts of the British Parliament, although the Indian body derived its authority from the latter. The Court then quoted the reasoning of Rand J., a judge of the Supreme Court of Canada, who had explained the essential nature of legislation passed by Canadian legislative bodies. Rand J. had stated that such legislation is considered the law of the Canadian legislatures as a self-governing political organization, not the law of the Imperial Parliament. He added that while the legislation was law within the Empire and the Commonwealth, it was not law as if it had been enacted at Westminster, even though its source of authority was derived from that Parliament. The Court further observed that in the Privy Council’s decision in Burah’s case, the Council was fully aware of the consequences of a written constitution that assigned legislative powers to a legislature defined in a specific way and that restricted that legislature from exceeding the constitutional provisions. After affirming that the Indian Legislature was not a delegate of the Imperial Parliament, the Privy Council warned that the Governor-General in Council could not, by any enactment, create in India a new legislative power that was not created and authorised by the Councils Act. Similar observations were made by the Judicial Committee in In re The Initiative and Referendum Act, 1919, and Lord Haldane, speaking about the powers of provincial legislatures under the Canadian Act of 1867, stressed that Section 92 of that Act vested legislative power exclusively in the provincial legislature.

The Court observed that a legislature may retain its own authority while seeking the assistance of subordinate agencies, as illustrated by the authorities cited in footnotes (1) See Attorney-General of Nova Scotia v. Attorney-General of Canada, (1950) 4 D.L.R, 369 at p. 383, (2) 5 I.A. 178, and (3) [1919] A.C. 935 at p. 945. The Court noted that a similar principle was applied in Hodge v. Queen, where the Ontario legislature was held entitled to delegate to a Board of Commissioners the power to make regulations concerning taverns. However, the Court emphasized that such delegation does not permit the legislature to create and endow a new legislative power that does not exist in the enabling Act to which the legislature’s own authority is subject. The Court rejected the proposition that the observations amount to a complete elimination of the legislative body by surrendering all its powers to another authority that the Constitution does not recognise; such a scenario is virtually beyond practical consideration. The Court explained that Lord Haldane’s remarks distinguish between “seeking the assistance of a subordinate agency in the framing of rules and regulations which are to become a part of the law” and “conferring on another body the essential legislative function which under the Constitution should be exercised by the legislature itself.” The Court considered the term “abdication” to be somewhat misleading, and held that it is not necessary to interpret it as requiring the legislature to extinguish itself entirely, erase its existence from the Constitution, and transfer all its rights to another authority that would step into its shoes. Rather, the abdication contemplated involves the surrender of essential legislative authority, even in respect of a particular subject-matter, to another person or authority that the Constitution does not empower to exercise that function. The Court then proceeded to outline in detail the limits of permissible delegation in law-making, referring to decided authorities. For this purpose, the Court indicated that it would be necessary to refer to several important cases decided by the highest courts of the United States, Canada and Australia, as well as a number of pronouncements of the Judicial Committee in appeals from India and the colonies. The Court confessed that no uniform view can be gathered from these decisions, as reflected in footnote (1) 9 App. Cas. 117, and recognised that such divergence is to be expected because the judgments emanate from judges in different jurisdictions operating under their own traditional theories and the prevailing opinions of their respective courts. The Court clarified that none of these authorities are binding on this Court, and therefore it is not necessary to attempt a reconciliation of the divergent views. Consequently, the Court affirmed that it is free to adopt the view that appears, in its judgment, to be well-founded on principle and based on sound juridical reasoning. Broadly speaking, the question of

Delegated legislation has been examined by the courts in two separate categories of cases. The first category consists of what is commonly described as “conditional legislation.” Under the generally accepted view, the element of delegation involved in such cases does not pertain to any legislative act itself; rather, it concerns the determination of a contingency or an event, the occurrence of which triggers the operation of the legislative provisions. In other words, the law remains fully formed when it leaves the legislature, but its effect is made contingent upon the fulfillment of a specified condition, and the authority that is delegated to an external body is limited to deciding, using its own judgment, whether that condition has been satisfied. The second category is that of proper delegation, in which a legislative body expressly transfers a portion of its law-making authority to a subordinate agent or authority. The Court indicated that it would consider each of these two types of delegations in turn.

In the case of conditional legislation, the statute is complete at the moment of its passage, yet the statute’s operation is expressly made dependent upon the occurrence of a particular condition. The delegated function, therefore, is confined to the determination of the factual existence of that condition. As Justice O’Connor observed in Baxter v. Ah Way, “The aim of all legislation is to project their minds as far as possible into the future and to provide in terms as general as possible for all contingencies likely to arise in the application of the law.” He went on to note that it is impossible to anticipate every specific circumstance, and consequently, from the earliest periods and especially in modern times, legislation has often taken the form of conditional legislation, leaving it to a designated authority to determine the circumstances in which the law will apply, the scope of its operation, or the particular class of persons, goods, or things to which it will be directed.

Although the doctrine of separation of powers remains a fundamental principle, this mode of legislation is widely recognized in American legislative practice and is not regarded as violating the anti-delegation rule. A leading Pennsylvania decision articulated that while “the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.” The same judgment warned that refusing such delegation would “stop the wheels of Government,” because many facts upon which sensible legislation must rely cannot be known to the legislature and therefore must be investigated and determined outside the legislative chambers.

One of the earliest pronouncements of the Judicial Committee on conditional legislation appears in the case of Queen v. Burah. In that matter, the Lieutenant-Governor of Bengal was authorized to extend any or all provisions of a statute to specified districts at a time of his choosing, thereby exemplifying the principle that the legislature may enact a complete law while delegating to an external authority the power to decide when and where the law will take effect, without performing any further legislative act themselves.

In that earlier case the Lieutenant-Governor was authorised to extend any or all provisions of the statute to specified districts by publishing a notification in the official gazette. The Lieutenant-Governor himself was not required to perform any legislative act. The Judicial Committee, in its judgment, stated that the proper legislature had exercised its judgment regarding the place, the persons, and the powers concerned, and that by doing so it had legislated conditionally with respect to those matters. Once the prescribed conditions were satisfied, the legislation became absolute. Four years after that decision, the matter of Russell v. The Queen was placed before the Judicial Committee. The dispute concerned the Canadian Temperance Act of 1878, whose prohibitory and penal sections were to operate in any county or city only if, after a majority of the electors of that county or city voted in favour, the Governor-General, by an Order in Council, declared the relevant portion of the Act to be in force. One of the contentions raised before the Committee was that this provision amounted to an unlawful delegation of legislative authority to the majority of voters in the municipality. The Privy Council rejected that contention and expressly relied upon the earlier decision in Queen v. Burah. The Committee observed that the short answer to the question was that the Act did not delegate any legislative powers at all; rather, the Act itself contained the entire legislation on the subject. The clause that certain parts of the Act would come into operation only upon a petition by a majority of electors did not confer any authority to legislate. Parliament itself enacted the condition and all consequent measures that would take effect once the condition was fulfilled. The Committee noted that such conditional legislation is often convenient, not unusual, and that the Parliament of Canada could not be denied the power to legislate in this manner when the subject matter fell within its competence. The same principle was later applied by the Judicial Committee in King v. Benoari Lal Sarma. In that case the validity of an emergency ordinance issued by the Governor-General of India was challenged, among other grounds, because the ordinance provided for the establishment of special criminal courts for particular offences while leaving the actual establishment of those courts to the provincial governments, which were authorised to set them up at such times and places as they deemed appropriate. The Committee held that this arrangement did not constitute delegated legislation; it was merely an example of the relatively common legislative power whereby the local application of a statutory provision is determined by the judgment of a local administrative body as to its necessity. Consequently, judicial pronouncements have consistently treated conditional legislation as a category distinct from delegated legislation.

In this discussion the Court held that conditional legislation did not constitute any type of delegated legislation. It placed such statutes in a distinct category and clarified that when every element of a conditional law is present, the question of whether the legislature acted beyond its constitutional authority by assigning the determination of the condition to an external body never arises. The Court then turned to a second, more significant group of cases in which a portion of the legislature’s law-making power was expressly conferred on a subordinate authority and the rules and regulations that authority was required to frame formed an integral part of the parent statute. It reiterated that, whenever Parliament or any other competent legislative body acts within its own legislative field, it may lawfully delegate administrative and legislative functions to another agency. The essential inquiry, however, was to ascertain the limits within which such a delegation could be properly made. The learned Attorney-General conceded that the legislature could not altogether abandon its functions or transfer to another body the whole of the legislative power it possessed. Subordinate legislation, the Court noted, was undisputedly required to operate under the control of the legislature from which it derived its authority, and its very existence depended on the continued existence of that legislative control. As Dixon J. observed, “a subordinate legislation cannot have the independent and unqualified authority which is an attribute of true legislative power.” The Judge further explained that several legal consequences followed from this doctrine: an offence committed against subordinate legislation was deemed an offence against the principal statute, and the repeal of the principal statute automatically caused the subordinate regulations to collapse. Up to this point the propositions were accepted without dispute. The Attorney-General then argued, citing Vide Victoria Stevedoring and General Contracting Company v. Dignan, 46 C.L.R. 73 at 102, that 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 terminate it at any time it deemed appropriate. The Attorney-General further submitted that if this condition were satisfied in a particular case, the nature or extent of the powers delegated to the subordinate agent would be immaterial, and that the courts would have no jurisdiction to examine that question. While this argument appeared plausible at first glance, the Court, after closer scrutiny, found it unsound. The Court expressed the view that mere retention of control over the subordinate agency, together with the power to recall that agency at any time, was insufficient to justify granting the delegate the whole of the legislative power concerning a specific subject. The Court emphasized that subordinate legislation not only signified the dependent character of the agency entrusted with legislative functions, but also implied the ancillary or subordinate nature of the legislation itself, the making of which such an agency was entrusted.

The passage emphasizes that when a legislature transfers its core legislative powers to an external body, it effectively abdicates its authority, which exceeds the permissible limits of delegation. The essential legislative function, according to this view, involves selecting a legislative policy and then formally converting that policy into a binding rule of conduct. The legislature retains the discretion to set the policy either in broad terms or with detailed specifications, as it deems appropriate. After establishing the policy, the legislature may assign the remaining legislative tasks to a subordinate authority, which is expected to flesh out the details within the parameters of the already-defined policy. The passage quotes a principle stating that, provided a policy and a statutory standard are established, delegating the creation of subordinate rules and the determination of factual applications to selected instrumentalities does not constitute an unconstitutional delegation of legislative power. This principle is illustrated by reference to Schechter Poultry Corp. v. United States, 295 U.S., where the United States Supreme Court observed that the law-making body may lay down policy and standards in broad, general terms, leaving subordinate agencies to operate within those boundaries. The Court has repeatedly held that it is sufficient for the legislature to set an intelligible principle that subordinate authorities can apply to specific cases or classes of cases.

The passage notes that the Supreme Court has been extremely reluctant to find a violation of the intelligible-principle doctrine, and only two decisions—Panama Refining Co. v. Ryan and Schechter Poultry Corp. v. United States—have declared federal statutes invalid on the ground that Congress had not provided a definite enough standard. In Panama Refining Co. v. Ryan, Chief Justice Hughes emphatically declared that Congress is not permitted to abdicate or transfer its essential legislative functions to others. He further observed that whenever the issue of delegation arises, courts recognize fixed limits beyond which no constitutional authority exists to delegate. The passage applies this reasoning to section 9(c), concluding that the provision exceeds permissible limits because, concerning the transportation of oil produced beyond state permission, Congress failed to set any policy, standard, or rule, and offered no definition of the circumstances under which such transportation would be allowed or prohibited. Justice Cardozo dissented from the majority view in that case, holding that an express or implied reference to the policy set out in section 1 provided a sufficient standard to uphold the statute. He famously remarked that discretion is “not unconfined and vagrant” but is “confined within banks that keep it from overflowing.” The passage also mentions that a later decision in Schechter Poultry reiterated concerns about unconstrained delegation when no definite standard was established.

In the case of Corporation(3) the Court held that the legislative power had been unconstitutionally delegated by the provision of section 3 of the National Industrial Recovery Act of 1933 because the legislature had not set up or indicated any definite standard. Justice Cardozo concurred with the opinion of the Court and declared that the delegated power of legislation expressed in that Code was not confined within defined limits but was “unconfined and vagrant.” He observed, “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. This is delegation running riot. No such plenitude of powers is capable of transfer.”

The Court noted that, to date, these two decisions were the only instances in which statutes of Congress had been declared invalid on the ground that they delegated essential legislative powers. In later cases the Court invariably found that Congress had established a standard that was sufficiently definite to satisfy the prohibition against the delegation of legislative powers, and each time a liberal construction was applied to the enactment. While the Court did not concern itself with the specific outcomes of those later cases, it emphasized that the value of those decisions lay in the principles they articulated. Those principles, the Court explained, make clear that a legislature cannot relinquish its essential function of declaring policy and turning that policy into a binding rule of conduct. To surrender that essential function would constitute an abdication of legislative power in the eyes of the law. The policy may be expressed in as few words as the legislature deems appropriate, provided that it offers intelligent guidance to the subordinate authority. The Court may intervene only where no discernible policy exists at all, or where the delegation is so indefinite that it effectively amounts to abdication. Nevertheless, the discretion to determine whether a delegation is necessary belongs to the legislature, and the Court will not disturb that discretion except in clear cases of abuse.

The Court regarded these statements as fundamental principles governing legislative power. It observed that, with respect to the powers of the legislature, the constitutional position in India more closely resembles the American model than the English one. A basic distinction exists between the Indian Parliament and the British Parliament in this respect. The British Parliament is not constrained by any constitutional limitation on assigning its powers wherever it chooses, whereas the Indian Parliament, as a legislative body, is bound by a written constitution and does not enjoy the sovereign authority of the British Parliament. Consequently, the limits on delegation in India must be discerned through constitutional construction. The Court cited several American cases—Opp Cotton Mills v. Administrator of Wages, 312 U.S. 126; Yakus v. United States, 321 U.S. 414; and American Pt. & Lt. Co. v. Securities and Exchange Commission, 329 U.S. 90—to illustrate how courts ensure that delegation of powers is not left unchecked, emphasizing that delegation must be limited either by legislative prescription of ends and means or by the scope of the delegated authority.

The Court observed that, unlike the British Parliament, which may assign its powers without constitutional restraint, the Indian Parliament operates under a written Constitution and therefore does not enjoy the same sovereign authority as the British legislature. Consequently, the scope of any delegation of legislative power in India must be determined by interpreting the constitutional provisions themselves. The Court further explained that such a delegation is permissible only to the extent that it is required to render the exercise of legislative power effective and complete.

Referring to Schwartz’s treatise on American Administrative Law, the Court quoted that the doctrines discussed therein enable United States courts to prevent unchecked expansion of executive power that accompanies the growth of the administrative state. Schwartz emphasized that any delegation of authority must be limited, either by specifying the legislative purpose and the means to achieve it, by detailing particular aspects of the delegated power, or by restricting the geographical or subject-matter range of the delegation. In the Court’s view, the enabling statute must therefore provide a clear framework within which the executive may act, as Schwartz noted on page 22 of his work.

The Court found it appropriate to mention that the Committee on Ministers’ Power produced a report recommending a principle closely resembling the American doctrine as a safeguard against excessive delegated legislation. The Committee’s report stated that the statute conferring any law-making power on a minister should expressly define the precise limits of that power in clear language, and whenever discretion is granted, the limits of that discretion should be delineated with equal clarity. The Court noted that, while in the United States questions of legislative authority are judged on the basis of vires and subject to judicial review, in the United Kingdom such questions are treated as matters of policy with purely political significance.

Nonetheless, the Court observed that the Committee’s recommendation demonstrates that the principles applied by American judges, especially in later decades, rest on sound democratic foundations. Turning to comparative jurisprudence, the Court indicated that it would examine leading decisions from Canada and Australia to assess how those courts have addressed similar issues. The Court pointed out that many Canadian cases have been appealed to the Judicial Committee of the Privy Council.

In particular, the Court introduced the case of Hodge v. The Queen(2), which was heard before the Judicial Committee on appeal from the Court of Appeal for Ontario in 1883. The factual background, as the Court described, involved the appellant’s conviction for allowing a billiard table to be placed and a game of billiards to be played in contravention of a resolution issued by the License Commissioners. Those Commissioners had been empowered by the Liquor License Act of 1877 to make regulations governing the use of taverns, including the authority to create offences and attach penalties. One of the principal questions raised in that case, the Court noted, concerned whether the Ontario Legislature could validly delegate to the License Commissioners the power to frame regulations that effectively created new offences.

Ontario legislation was held capable of delegating certain powers to the License Commissioners for the purpose of framing regulations that could create new offences. The Privy Council, agreeing with the High Court, concluded that the Ontario legislature was not exercising any delegated authority from the Imperial Parliament. Instead, the Court observed that the provincial legislature possessed full authority to confer upon a municipal institution or any body of its own creation the power to make by-laws or resolutions on matters expressly specified in the provincial enactment, with the purpose of giving effect to that enactment. In delivering its observation, the Court quoted that “Such an authority is ancillary to legislation;…… the very full and very elaborate judgment of the Court of Appeal contains an abundance of precedents for the legislature entrusting a limited discretionary authority to others and as many illustrations of its necessity and convenience.” From this pronouncement it follows that what the Ontario Legislature delegated to the License Commissioners was simply the power to regulate tavern licences. The delegation did not involve surrendering any substantial legislative power. Although the Privy Council expressly described the provincial legislature as supreme within its own sphere and likened its authority to that of the Imperial or Dominion Parliament, it nevertheless characterized the delegated power as ancillary to legislation and again referenced the “abundance of precedents for the legislature entrusting a limited discretionary authority to others.” The Court’s guarded language was not strictly necessary if the Ontario Legislature in fact possessed the same right to delegate powers as the British Parliament.

It is noteworthy that the counsel for the Crown, identified as Davey, Q.C., who supported the judgment under appeal, did not argue before the Privy Council that the Ontario Legislature enjoyed full delegation rights comparable to those of the British Parliament, a position that would have rendered its acts beyond constitutional challenge. Instead, his submission maintained that, in the present case, there was no delegation of legislative authority at all; what was delegated was merely the power to make by-laws. By “legislative authority” the counsel appeared to refer to the core legislative function, distinct from the ancillary power to make rules and regulations, and implied that such essential legislative powers could not be delegated. The next authority considered was the case of Powell v. Appollo Candle Co. (1), which concerned a similar point of law. That matter arose on appeal from a decision of the Supreme Court of New South Wales, raising the question of whether section 133 of the Customs Regulation Act of 1879 of the Colony (10 App. Cas. 232) was ultra vires the Colonial legislature. One ground of attack on the legislation claimed that it conferred upon the Government the power to levy duty on certain articles which, in the Collector’s opinion, were substituted for other dutiable articles, thereby raising the issue of the validity of such delegated executive power.

The Court considered whether the authority to levy duties on substitute articles could be lawfully given to the executive. The Judicial Committee of the Privy Council affirmed that the provision was perfectly valid and that it lay well within the power of the Colonial legislature, which was not acting as a delegate of the Imperial Parliament, to confer such discretionary authority on the executive so that the statute could be made effective. The Act itself set out the policy and the principal rules, leaving the executive with only the task of enforcing those provisions more efficiently by imposing duties on articles that could serve the same purposes as the items expressly listed as dutiable in the legislation. The standards established by the legislature were sufficiently clear to direct the officers of the executive.

The discussion then turned to the Supreme Court of Canada’s decision in In re Gray (1). That case arose during the First World War when the Dominion Parliament of Canada enacted the Dominion War Measures Act, 1914, which empowered 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 question was whether the British North America Act permitted such a transfer of legislative power. By a majority of four to two the Court held that the Act was constitutionally valid, although the majority judges did not agree on every reason for their conclusion. The Chief Justice expressed the view that nothing in the Constitutional Act, as relevant to the matter, limited the authority of the Canadian Parliament in a way that the Imperial Parliament was not itself bound. Anglin J., citing Hodge v. The Queen (1) (supra), suggested that the British North America Act did not envisage a complete abdication of legislative powers by the Dominion Parliament; rather, such a notion was considered so implausible that the constitutionality of an outright surrender of power lay beyond practical consideration. He gave the term “abdication” a very narrow interpretation. Duff J. reached a similar conclusion, emphasizing that no abandonment of legislative authority occurred because the powers granted could be withdrawn at any time and any actions taken under them could be nullified by Parliament. Idington and Brodeur JJ. dissented from the majority view. The reasoning of this decision was later adopted in the reference concerning the validity of regulations on chemicals made by the Governor-General of Canada under the War Measures Act, reported in 1943 S.C.C. 1, where the same issues of delegated legislative authority were examined.

The Court examined the validity of several regulations that had been issued by an Order in Council exercising the authority provided to the Governor in Council by the War Measures Act and the Department of Munitions and Supply Act. The Court held that, except for paragraph 4 of that Order, the remaining provisions of the Order were not beyond the powers granted by the statutes. The report indicated that the parties did not dispute before the Court that the legislature was permitted to delegate powers to the Governor in Council under the War Measures Act. The issue that arose was whether the Governor in Council was, in turn, authorized to delegate those powers to subordinate agencies. The Court answered this question affirmatively, explaining that delegation was absolutely essential to give effect to the purposes for which the War Measures Act had been enacted, thereby ensuring that the Act could function effectively. Accordingly, any delegated authority must be regarded as forming part of the powers that Parliament conferred in the Act. The Court observed that these matters involved wartime decisions and noted that the doctrine of delegation appeared to have been extended excessively in the Chemical Reference case. In In re Gray (1) the Chief Justice, at the close of his judgment, expressly 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 conditioned on whether a law was enacted in wartime or peacetime. Nevertheless, the Court recognised the counter-argument that, when a Parliament legislates during war and the nation’s liberty and security are threatened, the only reasonable policy may be to ensure the continuation of the war effort, which necessarily entails vesting all war-related functions in the executive. The Court found considerable weight in Justice Dixon’s observation (2) that “the exigencies which must be dealt with under the defence powers are so many, so great and so urgent, and so much the proper concern of the executive that, by its very nature, the power appears by necessary intent to authorise delegation otherwise generally forbidden by the legislature.” The decision in In re Gray (1) was later sought to be distinguished in a Canadian case on the ground that, in an emergency, legislation of this sort could be passed by invoking the residual powers granted to the Dominion Parliament under section 91 of the North America Act (3). Subsequently, the case of In re The Initiative and Referendum Act (4) arose immediately after In re Gray (1), involving a dispute concerning an Act (1) 57 S.C.R. 150. (2)

The Court cited the decision in Victoria Stevedoring and General Contracting Company v. Dignan, which appeared in volume 46 of the Canadian Law Reports at page 73 and was specifically pointed to on page 99. It also referred to the case Credit Froncier v. Ross, reported in the 1987 third volume of the Dominion Law Reports at page 365. In addition, the Court mentioned the authority reported in the 1919 All-Canada Reports at page 935.