In re Delhi Laws Act, AIR 1951 SC 332

(Is it permissible for the legislature to delegate legislative power to a subordinate authority?)

FACTS

Reference was made by the President of India under Article 143 of the Constitution asking the Court’s opinion on three questions.
The necessity of seeking the advisory opinion of this Court is stated to have arisen from the fact that because of the decision of the Federal Court in Jatindra Nath Gupta v. Province of Bihar AIR 1949, which held the proviso to sub-section (3) of Section 1 of the Bihar Maintenance of Public Order Act, 1947, ultra vires the Bihar Provincial Legislature, by reason of its amounting to a delegation of its legislative powers to an extraneous authority, doubts have arisen regarding the validity of the three legislative provisions mentioned as under.

The controversy centers around the point as to whether such delegation was or is within the competency of the particular legislature which passed these enactments.

ISSUES

1. Was Section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act?

2. Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act?

3. Is Section 2 of the Part ‘C’ States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament?

CONTENTIONS

1. The contention of the learned Attorney-General, who represents the President of India, in substance is that a legislature which is competent to legislate on a particular subject has the competence also to delegate its legislative powers in respect of that subject to any agent or external authority as it thinks proper. The extent to which such delegation should be made is entirely a matter for consideration by the legislature itself and a court of law has no say in the matter.

2. There could only be two possible limitations upon the exercise of such right of delegation by a competent legislative body:

   • One is that the legislature cannot surrender its powers altogether or bring into existence a new legislative power not authorised by the constitutional instrument.

   • The second is that if the constitutional document has provided for distribution of powers amongst different legislative bodies, one legislature cannot delegate to another, powers, which are vested in it, exclusively under the Constitution.

3. It is argued that, save and except these two limitations, the doctrine of inhibition of delegation by legislative authority has no place in a Constitution modelled on the English system which does not recognise the principle of separation of powers as obtains in the American system.

RATIONALE

1. It will be noticed that in all the three items of legislation there has been a conferment by the legislatures, which passed the respective enactments, to an outside authority, of some of the powers which the legislative bodies themselves could exercise. The authority in whose favour the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws, any restrictions or modifications as it thinks fit.

2. To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modifications as it thinks proper, that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down.

3. The Court therefore made the following observations with respect to the issues:
   a. The Ajmer-Merwar Act was passed by the Dominion Legislature constituted under the Government of India Act, 1935, as adapted under the Indian Independence Act of 1947. The provisions of the Constitution Act of 1945 regarding the powers and functions of the legislative bodies were similar to those that exist under the present Constitution and no detailed reference to them is necessary.
   b. The last portion of Section 2 of Part-C States (Laws) Act is, therefore, ultra vires the powers of the Parliament as being a delegation of essential legislative powers in favour of a body not competent to exercise it and to that extent the legislation must be held to be void. This portion is however severable; and so the entire section need not be declared invalid.

HELD

The answer to the three questions referred to the Court were as follows:

1. Section 7 of the Delhi Laws Act, 1912, is in its entirety intra vires the legislature which passed it and no portion of it is invalid.

2. The Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions are not ultra vires the legislature which passed the Act.

3. Section 2 of Part-C States (Laws) Act 1950, is ultra vires to the extent that it empowers the Central Government to extend to Part-C States laws which are in force in Part A States, even though such laws might conflict with or affect laws already in existence in the area to which they are extended. The power given by the last portion of the section to make provisions in any extended enactment for the repeal or amendment of any corresponding provincial law, which is for the time being applicable to that Part-C State, is, therefore, illegal and ultra vires.

COMMENTARY

Re Delhi Laws Act, 1912 was the first leading case decided by the Supreme Court on delegated legislation after the Constitution came into force.
The importance of the Re Delhi Laws Act, 1912 cannot be under-estimated as, on the one hand, it permitted delegation of legislative power by the legislature to the executive; while on the other hand, it demarcated the extent of such permissible delegation of power by the legislature. All the seven judges gave their separate opinions. Many a time a question is asked whether any principle was formulated by the majority opinion. The answer is not simple as there is difference of opinion amongst jurists on this point. – CK Takwani