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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE:
In. Re. THE DELHI LAW ACT 1912

SUBJECT:
CONSTITUTIONAL LAW - 1

NAME OF THE FACULTY:

Mr. ZAIN SALEH

NAME OF CANDIDATE:
ADVIKA PHOTUMSETTY
2014070
3RD SEMESTER
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Acknowledgment

I would like to sincerely thank our professor Mr. Zain Saleh for giving me this opportunity to
take up this project regarding In Re. Delhi Act Case 1912.. I have my level best to collect
various data and information about the topic in order to provide a clear picture regarding the
same.

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Abstract

If we look around we can that there has been a shift in the administrative functions of the
country. After independence there has been a lot of confusion regarding delegating legislative
powers to the executives. To clarify this: the president under article 143 referred the matter to
the apex court and it laid down certain guidelines to clarify the position.

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Contents

Aims & Objectives

Significance
Case Summary
Scope of Study
Literature Review
Research Methodology & Hypothesis
Introduction
Background
Analysis of Facts & Judgment
Analysis of the various opinions

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Views of the Bench

Impact/Outcome
Conclusion
Bibliography

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Aims/ Objectives:

Aim of this project is to understand the reason behind the Delhi Laws Act 1912. This project
looks into why the case was filed, its outcomes and its after effects.
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Significance & Benefits

The case has contributed in the development of the concept of delegated legislature by clarifying
a few areas of confusion. One of it was laying down the British model of delegated constitution
as there is a difference in the constitution. Moreover, it laid down that delegation is possible and
necessary due to increase in burden on the legislation and the increase in administrative
activities. This cleared the confusion on conditional delegation and delegation.

Case Summary
PETITIONER:
In re THE DELHI LAWS ACT, 1912,THE AJMER-MERWARA (EXTENSION
Vs.
RESPONDENT:
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THE PART C STATES (LAWS) ACT, 1950.

DATE OF JUDGMENT:
23/05/1951

Qorum: KANIA, HIRALAL J. (CJ)

FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
BOSE, VIVIAN
MUKHERJEA, B.K.
Statutes Referred: Delhi Laws Act, 1912, Part C States (Laws) Act, 1950, The Ajmer-Merwara
(Extension of Laws) Act, 1947
Case facts:
Section 7 of the Delhi Laws Act, 1912, provided 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, 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, provided 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. As a result of a decision of the Federal Court,
doubts were entertained with regard to the validity of laws delegating legislative powers to
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the executive Government and the President of India made a reference to the Supreme Court
under Art. 143 (1) of the Constitution for considering the question whether the above-mentioned
sections or any provisions thereof were to any extent, and if so to what extent.
Judgement: 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;
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 re- garded 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 in- curred and penalties, forfeitures and punishments have
been incurred or imposed under such Acts and instruments;

Scope of the study

This study helps understand and analyze the Delhi Laws Act 1912 and why the need for such a
enactment was necessary.

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Literature review
After reading various cases and books have been referred I have written a brief about a few
books and cases.
Delhi Laws Act 1912 was the main statute referred in this project. It is the Act under which this
case was raised and it looks into how the legislative delegated powers of India came to place.
Similarly the other statutes, namely: Part C State[laws] Act, 1950 and The Ajmer-Merwara
[Extension of Laws] Act 1947 also deals with the same issues. Collectively, these three Acts were
challenged in this case.
In the article, The Government of India A Historical Survey of Parliamentary Legislation, it talks
about the historical importance of India during the Elizabeth rule and what lead upto the need for
the implementation of the Delhi laws Act of 1912.
In the article by Arthur Berriedale Keith, A Constitutional History of India, 1600-1935 226
(1936) Political Unrest, the Minto-Morley Reforms, and the New Delhi, it gives us a brief from
the minto- morly reforms up until the implementation of the act of 1912.
In the reference book, M.P Jain constitution of India it talks about the constitutional laws of
India and how it came about. It has all the laws in details explaining each laws meaning and
origin.

Research Methodology:

This project is a strict doctrine study

Hypothesis:
How did the case judgment effect the constitution of India.

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Introduction

Delegated administration is one of the most inevitable parts of administration. Along with being
one of the most significant, it is also one of the most debatable issues in India. According to
traditional theory the function of the executive is administering the enacted by the legislative and
in ideal state the legislative power must be directed dealt with by the legislature. 1 But due to
1 SP Sathe, Administrative law, p 39, [3rd Edn. Lexis Nexis Butterworths]

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increase in administrative function and shifting of the concept to welfare state, they have to
perform certain legislative functions. 2
A lot of decisions from the privy councils to Supreme Court deal with the same. This discipline
can be read into three times pre- independence, Post-independence and post constitution.
In pre constitution era when the Privy Council was the highest court of appeal from India till
1949 question of constitutionality of delegation of legislative power came before it in case of
Queen v Burah3. The act in dispute gave certain powers to Lt Governor namely the power to
bring into effect, determine the laws were to be applicable and the power to extend the
application of the act. The act was enacted to remove garo hills from the jurisdiction of civil and
criminal courts and extend all or any provisions of the act in Khasi, Jaintia and Naga Hills in
Garo Hills. The question was whether giving Lt Governor Power to extend the application of the
law is delegation of power?

Privy Council observed that Indian legislature is not an agent or delegate as against Calcutta
High Court but was intended to have plenary powers of legislation and of the same nature of the
parliament itself. It was observed that Indian legislature is not an agent or delegate as against
Calcutta High Court but was intended to have plenary powers of legislation, and of the same
nature of the parliament itself. It was observed that Indian legislation had exercised its judgment
as to the place, person, law, powers and what the governor was required to do was make it
effective upon fulfillment of certain conditions. This is called conditional Legislation which was
upheld by the court. The question of permissible limits of legislative power became important in
Independent India. Just on the eve of Independence, the fedral court had held in Jatindra Nath v
Province of Bihar4 that there could by notification was allowed to extend the time for which the

2 Takwani, Lectures of administrative law, p 39, [3 rd Edn.Eastern Book company]

3 1878 3 AC 889
4 [1949] 2 FCR 595
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Bihar Maintenance of Public Order Act 1948 was to remain. The court held this power non
delegable.
There was a lot of delegation of legislation after these cases. The question of moot was whether
the legislature of independent India should be restricted to such rules or should be given greater
freedom? The nest step of confusion was whether India should follow American model where
unlimited power cannot be delegated or like that of England here as much power can be
delegated? It was left open to the courts to follow either of the models because of similarities
between the US and UK with India.

Background

The importance of delegated legislation or for that matter sub-delegation is so immense that even
in England, which has no Constitution, this aspect was raised when occasions of conferment of
powers on Sub-ordinate bodies became frequent and assumed large scope, questions about the
advisability of that procedure were raised and a Committee on the Minister's Powers, what is
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generally described as the Donoughmore Committee was appointed.

The Indian Legislature in 1861 and up to 1915 was a Sub-ordinate legislature and not a sovereign
legislature. Therefore under the Crown it was delegated legislative functions. However, the
legislations it made were reviewed by the Crown. This clearly implicates that delegation of
legislative function is not a very recent or new phenomenon. It has been in existence since time
ever on record. The simple reason for this being convenience.5
Territories being enormous, monitoring and controlling are not possible for one administrative or
executive body. Therefore it is but obvious when certain legislative and executive functions are
vested with other authorities rather than a sole central authority exercising all functions. An
example of the same being that, in case of emergency where the safety of the Union of India is in
danger, the President is given express power to suspend the Constitution and assume all
legislative powers. Similarly in the event of the breaking down of the administrative machinery
of a State, the President is given powers under Article 257 of the Constitution of India to assume
both legislative and executive powers in the manner and to the extent found in the Article. There
can be no doubt that subject to all these limitations and controls, within the scope of its powers
and on the subjects on which it is empowered to make laws the Legislature is supreme and its
powers are plenary.
The expression subordinate legislation means the act of making statutory instruments by a body
subordinate to the Legislature and in exercise of the power, within specific limits, conferred by
the Legislature. The term also connotes and covers the statutory instruments themselves.
Legislation is either supreme or subordinate. The former is that which proceeds from the
supreme or sovereign power in the State, and which is therefore incapable of being repealed,
annulled or controlled by any other legislative authority. Subordinate legislation is that which
proceeds from any authority other than the sovereign power, and is, therefore, dependent for its
continued existence and validity on some superior or supreme authority. The idea is to
supplement Acts of Supreme Legislative Body by prescribing detailed rules required for their
5 The Power of Delegation: An Inquiry

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operation.6
When a legislative body passes an Act, it has exercised its legislative function. The essentials of
such function are the determination of the legislative policy and its formulation as a rule of
conduct. These essentials are the characteristics of a Legislature itself. After a Law is made by
the Legislature, it is clear that every detail for working it out and for carrying the enactment into
operation and effect, may be done by the Legislature or may be left to another subordinate
agency or to some executive officer. While this is sometimes loosely described as a delegation
of legislative power, in essence, it is different from delegation of legislative power which means
a determination of the legislative policy and formulation of the same as a rule of conduct. 7
Explaining the meaning of the expressions delegated legislation and delegating legislative
power, Fazl Ali, J. in Delhi Laws Act case observed:
... the expressions delegated legislation and delegating legislative power are sometimes used in a
loose sense, and sometimes in a strict sense. These expressions have been used in the loose sense or
popular sense in the various treatises or reports dealing with the so called delegated legislation... There
can be no doubt that if the Legislature completely abdicates its functions and sets up a parallel
Legislature transferring all its power to it, that would undoubtedly be a real instance of delegation of its
power. In other words, there will be delegation in the strict sense if legislative power with all its attributes
is transferred to another authority.8

In the nature of things, what the Legislature does, and can do, is to lay down the policy and
purpose of any legislation in hand, leaving it to the Executive to frame, in conformity with those
principles, formal and procedural details of that measure in the form of orders4.
Emphasizing the necessity of subordinate legislation, the Supreme Court in

John Satmond: Jurisprudence, 9th edition, London, Sweet and Maxwell Limited, 1937, p. 210. see also Blacks Law Dictionary, 8th Edition,
p. 918

Kania, C.J., In re. Delhi Laws Act, A.I.R. 1951 S.C. 332(338

Ibid., (355).

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Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner of Sales Tax observed:
Most of the modern socio-economic legislations passed by the Legislature lay down the guiding
principles and the legislative policy. The Legislatures because of limitation imposed upon by the
time factor hardly go into matters of detail. Provision is, therefore, made for delegated legislation
to obtain flexibility, elasticity, expedition and opportunity for experimentation. The practice of
empowering the executive to make subordinate legislation within a prescribed sphere has
evolved out of practical necessity and pragmatic needs of modern welfare State9.
This power of delegation is a constituent element of the legislative power as a whole10.
So long as the Legislature indicates in the operative provisions of the statute the policy and
purpose of the enactment, the mere fact that the legislation is skeletal or the fact that a discretion
is left to those entrusted with administering the law, is no basis for a contention that there has
been excessive delegation of legislative power, if the power or discretion has been conferred in a
manner which is legal and constitutional11.
On the basis of judicial pronouncements, it may be taken as an established law now in India, that
the Legislature is not competent to delegate to the executive or any other body its essential
legislative function, namely, the determination of the legislative policy and its formulation, as a
rule of conduct12. But it has been conceded that the Legislature can take the assistance of other
bodies in subsidiary matters and that the cases in which such assistance can be taken would fall
broadly into two types of legislations known as conditional legislation and ancillary or
subordinate legislation13.

A.I.R. 1974 S.C. 1660 (1667)

10

Vasanlal Maganbhai Sanjanwala and the Pratap Spinning and Manufacturing Co. Ltd. v. the State of Bombay, A.I.R. 1961 S.C. 4; M/s. Tata
Iron and Steel Co. Ltd. v. Workmen of M/s. Tata Iron and Steel Co. Ltd., A.l.R. 1972 S.C. 1917

11

Jyoti Parshad v. Union Territory of Delhi, A.I.R. 1961 S.C. 1602.

12

Devi Das Gopal Krishan v. State of Punjab, A.I.R. 1967 S.C. 1895 (1901); Municipal Corporation of Delhi v. Birla Cotton Spinning and
Weaving Mills, Delhi, A.I.R. 1968 S.C. 1232; M/s. Tata Iron and Steel Co. Ltd. v. Workmen of M/s. Tata Iron and Steel Co. Ltd., A.I.R. 1972 S.C.
1917; Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax, A.I.R. 1974 S.C. 1660, 1667-69.

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As to the meaning of conditional legislation, it may be broadly described as legislation, the

operation of which is conditional upon the decision of a specified authority, as distinguished
from legislation which is absolute and comes into operation of its own force and independently
of the will of any other authority. In this connection, it has been observed:
In a conditional legislation, the law is full and complete when it leaves the legislative chamber,
but the operation of the law is made dependent upon the fulfillment of a condition, and what is
delegated to an outside body is the authority to determine, by the exercise of its own judgment,
whether or not the condition has been fulfilled14.
As regards subordinate or ancillary legislation, it refers to cases in which the Legislature lays
down the policy in more or less general terms and confers on an extraneous authority the power
to make rules and regulations to carry out the legislative policy. It is open to the Legislature to
formulate the policy as broadly and with as little or as many details as it thinks proper and it may
delegate the rest of its work to a subordinate authority who will work out the details within the
framework of that policy. In this regard, Mukherjea, J. in Delhi Laws Act case observed:
Delegation of legislative authority could be permissible but only as ancillary to, or in aid of the
exercise of law-making powers by the proper Legislature, and not as a means to be used by the
latter to relieve itself of its own responsibility or essential duties by devolving the same on some
other agent or machinery. A constitutional power may be held to imply a power of delegation of
authority which is necessary to effect its purpose; and to this extent delegation of a power may be
taken to be implicit in the exercise of that power15.

13

A.I.R. Commentaries on the Constitution of India, Vol. IV, 1973, art. 215, Note 9(a) Pt. 6. See also (i) In re. Delhi Laws Act, 1912, 1951,
S.C.R. 747 (SC); (ii) Hari Shankar Bagla v. State of Madhya Pradesh, 1955 S.C.R. 380 (SC); (iii) Raj Narain Singh v. Chairman, Patna
Administration Committee, 1955 S.C.R. 290 (SC); (iv) Edward Mills Co. v. State of Ajmer, 1955 S.C.R. 735 (SC). Conditional legislation is also
known as contingent legislation, and ancillary legislation as subordinate or subsidiary or supplementary legislation.

14

Observations of Mukherjea, J., In The Delhi Laws Act Case, 1951 S.C.R. 747 (978, 979).

15

Mukherjea, J., op. cit., 1951 S.C.R. 747 (973).

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The principle enunciated above has been stressed by the Supreme Court in a number of other
cases decided after the Delhi Laws Act case. For instance, in M/s. Tata Iron and Steel Co. Ltd. v.
Workmen of M/s. Tata Iron and Steel Co. Ltd., the Supreme Court observed:
The legal position as regards the limitation of this power is, however, no longer in doubt. The
delegation of legislative power is permissible only when the legislative policy and principle are
adequately laid down and the delegate is only empowered to carry out the subsidiary policy
within the guidelines laid down by the Legislature. The Legislature, it must be borne in mind,
cannot abdicate its authority and cannot pass on to some other body the obligation and the
responsibility imposed on it by the Constitution. It can only utilise other bodies or authorities for
the purpose of working out the details within the essential principles laid down by it. In each
case, therefore, it has to be seen if there is delegation of the essential legislative function or if it
is merely a case in which some authority or body other than the Legislature is empowered to
work out the subsidiary and ancillary details within the essential guidelines, policy and
principles, laid down by the legislative wing of the Government.
The subordinations in subordinate or ancillary legislation refers to the nature of legislation
itself which is delegated, and not only to the subordinate character of the agency which is
entrusted with the power to legislate. Hence, so far as legislative policy is concerned it must be
determined by the Legislature itself and it is only the task of working out the policy by
appropriate rules and regulations that can be delegated to a subordinate agency14.
In recent years an increasing use of the technique of sub-delegation has been resorted to in India.
Sub-delegation takes place when the rule-making authority delegates either to itself or to some
other subordinate agency a further power to issue rules or directions or other instruments of a
legislative character. The process may be repeated with the result that law-making may also take
place at four or five removes from the original enabling Act16.

16

Indian Law Institute: Delegated Legislation in India, 1964, p. 31.

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Though framed by the executive but under the specific authority delegated to it by Parliament,
the rules, regulations, etc. (hereinafter referred to as orders) have the force of law and the same
binding power as any provision of the principal enactment. In conferring this authority upon a
subordinate agency, Parliament does not abdicate its powers, for it can at any time disable the
agency it had created, set up another, or take the matter in its own hands.

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Analysis of Facts and Judgment

In order to clear doubts regarding the validity of a number of laws which contained such
delegation of legislative power, the president of India under Article 143 of the Constitution
invoked the Supreme Court's advisory jurisdiction seeking opinion on three questions submitted
for its consideration and report. The three questions were as follows:
A. Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof ultra vires? If
so, then in what particular or particulars or to what extent?
The said provision provided 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."17
This Act delegated to the Provincial Government the power to extend to Delhi area with such
restrictions and modification any law in force in any part of British India. This was held valid by
the majority but citing different reasons.
B. Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof
ultra vires and in what particular or particulars or to what extent was the same ultra vires
the Legislature which passed the said Act?
The impugned section stated that "Extension of Enactments to Ajmer-Merwara. - The Central
Government may, by notification in the official gazette, extend to the Province of AjmerMerwara 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.".
This act delegated the power to the Government to extend to the province with such modification
and restriction as it may deem fit. This was also held valid by the court. The different reasons
provided would be analyzed subsequently.

17 Delhi Laws Act, 1912.

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C. Is Section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof ultra
vires and in what particular or particulars or to what extent was it ultra vires the Parliament?
The provision up for consideration before the court stated that "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 theAndaman 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.
Part C were states directly under the control of the Central Government without having a
legislature of their own and hence, Parliament had to legislate for them. This act delegated the
power to the Central Government to extend to Part C States with such modification and
restriction as it may deem fit any enactment which was in force in any Part A states. It also
empowered the Government to repeal or amend any corresponding law which was applicable to
Part C States.
Section 2 of the Act was held valid but the power to repeal or amendment of any corresponding
law which was for the time being applicable to part C was void and was held to be excessive
delegation.

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Analysis of the various opinions with regards the core issue.

The seven judges that presided over the case provided us with 7 different opinions for the final
adjudication. The importance of the case cannot be under estimated in as much as, on one hand it
permitted delegated legislation, while on the other, it demarcated the extent of such permissible
delegation of power. The question was with regards the extent to which the legislature in India
can delegate its legislative power.
There were two extremist views put forth by the two counsels. M. C. Setalvad took the argument
that power of delegation is a necessary implication of the power of legislation and the same does
not result in abdication of the powers. The opposing counsel took the view that there exists a
separation of powers in the country and India follows the doctrine of delegates non potest
delegare. Therefore, there is an implied prohibition on delegation of power. As both the views
were radical, the court took a view that sought to harmonize the two and provided the following
dicta:
1. Separation of powers is not a part of the Indian Constitution.
2. Indian parliament was never considered as an agent of anybody. Therefore, the doctrine of
delegates non potest delegare is not applicable.
3. The Parliament completely cannot abdicate itself by creating a parallel legislative body.
4. The Power of delegation is ancillary to the power of legislation.
5. There is a limitation on delegation of power. Legislature cannot delegate its essential
legislative power. Essential legislative power means the power to lay down the policy of the law
and enacting that policy into a binding rule of conduct.
To arrive at this common conclusion, the Supreme Court gave 7 different pathways. There was
unity of outlook on two points. Firstly, keeping the exigencies of modern government in view,
Parliament and state legislatures have to delegate the power in order to deal with multiple
problems prevailing in India, as it is impossible to expect them to come with complete and
comprehensive legislation on all subjects sought to be legislated on. Secondly, since the
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legislature derives its power from the Constitution, excessive freedom like in the case of British
constitution cannot be granted and limitations are required.
The Honble Judges differed on the question as to what were the permissible limits within which
the Indian legislature could delegate its legislative powers. One view advocated that the
legislature can delegate power to the extent that it does not abdicate its own power to have
control over the delegate i.e. it must retain in its hands the ultimate control over the authority so
as to be able to withdraw the delegation whenever delegate did something wrong. The second
view reasoned that the legislature cannot delegate its essential functions which comprised the
formulation of policy etc. This meant that the legislature should lay down the standards or policy
in the delegating Act and the delegate may be left with power to execute the policy.

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Views From The Bench

i. The Source of Power to Delegate

It was concurred upon that the legislation should essentially be enacted by the Legislature such
that the intention of the same is manifested, the Legislature cannot retire and leave the task of
law making to any other body or class of bodies. Therefore, delegation, in respect of delegating
law making authority by one legislature to another is, by necessary implication, forbidden by the
Constitution.
In this backdrop, it was claimed by the learned Attorney General, M. C. Setalvad that the
Parliament could delegate because of the legislative power carried with it is power to delegate.
This was reject out rightly by Chief Justice Kania, Justice Mahajan and Justice Mukherjea
opining that constitution had never per se warranted delegation powers at any stage and all of
them agreed on the outlook that legislature can however, conditionally legislate. . In doing so it
may, in addition, lay down conditions, or state facts which on being fulfilled or ascertained
according to the decision of another body or the execution authority, the legislation may become
applicable to a particular area. This was described as conditional legislation. Justice Bose who
was in favour of delegated legislation, also concurred with the opinion above.
However, Justice Sastri and Justice Das, acceded to the contention of the Attorney General and
therefore differed from the majority. Their decision was based on the theory of Parliamentary
sovereignty and they observed that power to make law comes along with the power to delegate.
To provide a more holistic perspective, the author may point out that this case was decided in
1951 and since then the law on the subject has changed drastically. It is now judicially conceded
that power of delegation is constituent element of legislative power, and the power resides in the
legislature.18
ii. Ultima Thule: Limits of Delegation

18 Gramophone Company of India Ltd. v.Birendra Bahadur, (1984)2SCC534, 40.

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The present position is that the legislative function in its true and intrinsic sense cannot be
delegated. Therefore what can be delegated are only the non-essential functions. Only functions
ancillary to the essential functions of the legislature. According to the opinion of Justice
Mukherjea, if the policy laid down in an Act is in broad terms, the formulation of the details of
the policy can generally to be passed to the executive. Justice Mahajan, added that essential
matters cannot be delegated by the legislature. Chief Justice Kania opined that legislature cannot
delegate to lay down policy underlying a rule of conduct.
Discretion to make modifications and alterations in an Act while extending it to a given area, and
to effect consequential amendments or changes in an existing law is again conditioned with the
proposition that essential functions cant be delegated. The question on amount of discretion
exercisable by delegated authority cannot be defined and is a question that depends on the facts
and circumstances of each case.
iii. Delegation of power to make modifications and alterations
The questions stated in this case is already stated above. Most of the judges answered these
questions in affirmative. Only Chief Justice Kania and Justice Mahajan differed. They observed
that only the legislature has the authority to modify and alter the law in any substantive sense.
Justice Fazel Ali added that the power to change necessary things is incidental to applying the
law.
If modifications are done within the framework and does not change the identity or structure no
objection could be taken. Justice Mukherjea observed that modification does not mean change of
policy but it is confined to alterations which keeps the policy intact and introduces changes
appropriate to suit the local conditions. Justice Bose also was of the same opinion. In this way,
the majority felt that the executive authority could be authorised to modify the law but not in
essential and intrinsic sense.
iv. Repeal of Law
The power to repeal a law is essentially a legislative power and hence, delegating that to the
Government is at once ultra vires the power to delegate. Justices Fazl Ali, Das and Sastri held all
the sections to be perfectly valid. The majority based its opinion on the maxim of unis est
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exclusion alterious and ruled that an express provision permitting delegation contained in Article
357 would mean that unrestrained legislation was not permitted under the constitution. Essential
functions could not be delegated under any condition. The minority based its view of the theory
of legislative omnipotence of the British Parliament, and its reflection in the Australian, the
Canadian and the Indian Constitutional systems, which include the power to delegate legislative
functions, subject to the condition of non-abdication. The author would note here that, in
essence, the variance between the views of the minority and majority was not antagonistic. To
say that legislature should not abdicate its power is not entirely opposed to saying that the
legislature should not delegate its essential powers.

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Impact/ Outcome of the In Re: Delhi Laws Act Case

After In Re Delhi Laws Act , the question which arose was related to the limits of delegation and
the grounds for such limitation. The first case which encountered this question was Gwalior
Rayon.19 Here, Section 8(2)(b) of Central Sales Tax Act. 1956 authorized levying of sales tax on
interstate sales @ 10% or at the rate applicable to sale or purchase of goods in that state,
whichever is higher. This was challenged as excessive delegation on the grounds that no policy
was laid down in the parent act. The validity of the Act was upheld. Justice Khanna propounded
the Standard Test which provided that when legislature confers powers on an authority to make
delegated legislation it must lay down policy, principle or standard for the guideline for the
authority concerned. Justice Matthew, in his separate opinion, endorsed the Abdication Test i.e.
as long as the legislature can repeal the parent act conferring power on the delegate, the
legislature does not abdicate its powers. The majority refused to accept this test.
Justice Mathew, in the case of N. K. Papiah20 held the legislation valid based on the Abdication
Test. The question was whether the Act which conferred power on the Government to fix the rate
of excise duty and lay them before the legislature was valid or not. Further in the case of Brij
Sunder the court even allowed the extension of future laws of another state to which the adopting
state legislature never had an opportunity to exercise its mind. In addition to this, in K.
Kanjambu, the court propounded the Policy and Guideline test. It is fascinating here to note
that all these cases upheld the constitutional validity of the delegated legislation in question.

19 Gwalior Rayon Silk Manufacturing Co. v Assistant Commissioner of Sales Tax,

(1974)4SCC98.
20 N. K. Papiah v Excise Commisioner, (1975)1SCC492.
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Conclusion

The case has materially contributed in the development of the concept of delegated legislation by
clarifying certain areas of confusion. One of it was laying down that the British model of
Delegated Legislation cannot be implemented in India because of the difference in certain basic
tenets of the Constitution and system of administration. Moreover, it laid down that delegation is
possible and necessary due to increase in burden on the legislature and increase in administrative
activities. This cleared the confusion surrounding conditional delegation and delegation. This
case increased the scope of the delegated legislation to the extent of ancillary powers i.e. nonabdication of own power and non-transferring of main and essential functions. A Majority of the
judges were in favour of delegated legislation. Only Justice Mahajan and Chief Justice Kania
were in disagreement with the same. The latter emphasized on the concept conditional
delegation. As the opposition counsel built on the argument of separation of powers and the
concept of non potest delegare, the court observed that separation of powers is not a part of
Indian constitution. Courts are clear on the status of delegated legislation being allowed. 21 The
only question the courts must appreciate in such cases is whether the power delegated is
excessive or within the ambit of the parent act.22
In culmination, this case achieved 2 material ends. Firstly, it legitimized delegation of legislative
power by the legislature to administrative organs. Secondly, it imposed an outer limit on
delegation by the legislature. It may also be noted here that the present case shows lack of
judicial consensus. The ghost of Jatinder Nath was hovering over the judges who presided over
both these cases and they could not be expected to change their opinion as such short notice. In
the contemporary scenario, it is a well-accepted concept and delegation of power is allowed as
long as it is reasonable.

21 Agricultural market Committee v Shalimar Chemical Works, (1997)5SCC516

22I. P. Massey, Administrative Law (7th Edn., Eastern Book Company), p. 103.
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References and Bibliography

CASES
1. Agricultural market Committee v Shalimar Chemical Works, (1997)5SCC516
2. Brij Sunder v First Additional District Judge, (1989)1SCC561
3. Gramophone Company of India Ltd. v.Birendra Bahadur, (1984)2SCC534
4. Gwalior Rayon Silk Manufacturing Co. v Assistant Commissioner of Sales Tax, (1974)4SCC98
- 10
5. In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the
Part C States (Laws) Act, 1950, [1951]2SCR747 en passim
6. N. K. Papiah v Excise Commisioner, (1975)1SCC492
7. Queen v Burah, 1878 3 AC 889
STATUTES
2. Delhi Laws Act, 1912
3. Part C States (Laws) Act, 1950
5. The Ajmer-Merwara (Extension of Laws) Act, 1947
TREATISES
1. C.K. Takwani, Lectures on Administrative Law
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2. M.P. Jain & S.N. Jain, Principles of Administrative

3. S.P. Sathe, Administrative Law
4. M.P Jain, Constitutional Law of India
ARTICLES

1. The Government of India A Historical Survey of Parliamentary Legislation

2. Arthur Berriedale Keith, A Constitutional History of India, 1600-1935 226 (1936)
Political Unrest, the Minto-Morley Reforms, and the New Delhi,

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