In re Delhi Laws Act AIR 1951 SC 332
Fact of the case – before independence, there were three kinds of state in India viz. part A states, part B and part C. Legislature to regulate the administration enacted three legislation.
Section 7 of the Delhi Laws Act, 1912 read: “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
Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 read: “Extension of Enactments to Ajmer Merwara. - 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 read: “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 applying to that Part ‘C’ State.”
The president entertained doubt as to whether such delegation was proper and permissible by the Constitution. So a reference was made to the Supreme Court by the president under article 143 of the Constitution to seek an opinion on the constitutional validity of delegated legislation.
Contention of the learned Attorney-General, who represents the President of India was - 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. There could be, according to the learned Attorney-General, only two possible limitations upon the exercise of such right of delegation by a competent legislative body.
One is that the legislature cannot abdicate or 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 the distribution of powers amongst different legislative bodies, one legislature cannot delegate to another, powers, which are vested in it, exclusively under the Constitution
Submission against delegation of legislative power -; other than separation of power there is another reason why legislative cannot be delegated, the civil government where the representative of the people exercises the powers of voting taxes and enacting laws which is the most important part of the society. So it would be ultra vires if the power were delegated to other persons rather than to those whom it was executed. The representatives of the people are required to exercise wide discretion and sound judgment. The maxim of delegatus non potest delegare
which prevents a person upon whom power has been conferred, to whom the mandate has been given, from delegating his power.
Legal issue
- whether the well-known maxim of delegatus non-potest delegare be cited in India as the rule of inhibition or implied prohibition against delegation of legislation by the legislature to any other authority? whether They cannot be further delegated as it has been already delegated by the people to the legislature.
- Whether there is any limitation to delegating the power of the legislation to the other authority?
- Whether these above three act delegate legislation are constitutionally valid?
1st legal observationThe maxim delegatus non potest delegare is sometimes spoken of as laying down a rule of the law of agency, a doctrine which prohibits a person upon whom a duty or office has devolved or a trust has been imposed from delegating his duties or powers to other persons. To apply this maxim, the authority attempting to delegate its powers must itself be a delegate of some other authority.
The Legislature, in India at the present day, undoubtedly is the creature of the Indian Constitution, which defines its powers and lays down its duties; and the Constitution itself is a gift of the people of India to themselves. However, it is not a sound political theory that the legislature acts merely as a delegate of the people. in the case of Queen v. Burah [(1878) 3 AC 889] the question arose as to the validity of Section 9 of Act 22 of 1869 passed by the Governor-General’s Legislative Council. It was observed 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.”
2nd legal observation, As far as the British Parliament is concerned, there is no constitutional limitation upon its authority or power. words of Sir Edward Coke, “The power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds… The British Parliament can not only legislate on any subject it likes and alter or repeal any law it likes, but being both “a legislative and a constituent assembly”, it can change and modify the so-called constitutional laws and they can be changed by the same body and in the same manner as ordinary laws, and no act of the Parliament can be held to be unconstitutional in a British court of law. It is not possible in the Indian Parliament of the present day which is a creature of the Indian Constitution and has got to exercise its legislative powers within the limits laid down by the Constitution itself, the Indian Parliament cannot go beyond the Constitution or touch any of the constitutional or fundamental laws, and its acts can always be questioned in a court of law, India has a written constitution which defines and limits the rights of the legislature, the question whether the right of delegation, either limited or unlimited, is included within, and forms an integral part of, the right of legislation is a question which must be answered on a proper interpretation of the terms of the Constitution itself. the 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.
But it is not open to the legislature to strip itself of its essential legislative function and vest the same on an extraneous authority. The primary or essential duty of law making has got to be discharged by the legislature itself; delegation may be resorted to only as a secondary or ancillary measure.
The decision of the 3rd legal issue, . The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much detail as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy.
the Parliament might empower an executive authority to introduce laws validly passed by a competent legislature and actually in force in other parts of the country to such area, with each modification and restriction as the authority thinks proper, the modifications being limited to local adjustments or changes of a minor character.
But If any law exists and power is given to repeal or abrogate such laws either in whole or in part and substitute in place of the same other laws which are in force in other areas, it would certainly amount to an unwarrantable delegation of legislative powers. 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.
(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) 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. and the entire section need not be declared invalid.
