1951 Supreme(SC) 45

SUPREME COURT OF INDIA
H.J.Kania, CJI., B.K.Mukherjee, M.C.Mahajan : M.Patanjali Sastri : S.R.Dass : M.Fazal Ali Syed : Vivian Bose, JJ.
In Re (Art.143, Constitution Of India And Delhi Laws Act 1912)
Versus
Union Of India
Case No. : 1 of 1951
Date of Decision : 5/23/51
Advocates Appeared: Asthana K.B. : Banasingh Jessaram : Bhardwaj Amar Nath : Bhasin T.R. : Bindra N.S. : Chatterjee N.C. : Daphtary C.K. : Dapthary C.K. : Das Shankar : Gharekhan M.M. : Ghosh Basant Chandra : Gupta J.S. : Iyer A.R.Somnath : Iyer R.Ganapathy : Joshi G.N. : Kapur Din Dayal : Lal C.P. : Lal Munshi : Mathur G.C. : Mehta P.A. : Narain Rajindar : Narain Rajinder : Narula R.S. : Nasirabad Runglal : Safeer P.S. : Sajeer P.S. : Saxena M.L. : Setalvad M.C. : Shastri M.S.K.

Headnote:Ajmer-Merwara (Extension of Laws) Act, 1947, S. 2Law giving power to Central Government to extend to the Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit any law in force in any other part of India Validity.

       Held (1) (Per Fad Ali, Patanjali Sastri, Mukherjea Das and Bose]].; Kania C. ]. and Mahajan]. dissenting), Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, is wholly intra vires.

       (2) (Per Kania G.].). Section 2 of the Ajmer.Merwara (Extension of Laws) Act, 1947, is ultra vires to the extent power is given to the Government to extend Acts other than Acts of the Central Legislature to the Province of Ajmer-Merwara inasmuch as to that extent the Central Legislature has abdicated its functions and delegated them to the executive Government.

       (3) (Per Mahajan ].) Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, is ultra vires in the following particulars ;-

       (i) inasmuch as it permits the executive to apply to Ajmer-Merwara, laws enacted by Legislatures not competent to make laws for those territories and which these legislatures may make within their own legislative field; and

       (ii) inasmuch as it clothes the executive with co-extensive legislative authority in the matter of modification of laws made by legislative bodies in India. - Delegation of legislative powers-Role of -Scope and principle -Applicability to India-Difference between delegation of legislative power and conditional legislation-Powers of Indian. Legislature under the Indian Councils Act, 1861, the Government of India Act, 1935, and the Indian Constitution, 1950-Delhi Laws Act, 1912, S. 7-Ajmer-Merwara (Extension of Laws) Act, 1947, section 2-Part C States (Laws) Act, 1950-Validity.

       There was a reference made by the President of India under Article 143 of the Constitution asking the Courts opinion on the three questions submitted for its consideration and report1. The three questions were as follows :-

       "(1) Was section 7 of the Delhi Laws Act, 1912, or any of the pro-visions thereof and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act" Section 7 of the Delhi

       Laws Act, 1912, runs as follows :-

       "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."

       (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?

       Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs .as follows :-

       "Extension of Enactmentsw Ajmer M etwara.-The Central Government may, by notification in the Official Gazette, extend to the Provimce -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.

       (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. ?

       Section 2 of the Part C States (Laws) Act, 1950, runs as follows :-

       "Power to extend enactments to certain Part 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 encatment so extended for the repeal ,?r amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State."

       The three sections referred to in the three questions are all in respect of what is described as the delegation of legislative powe1 ad the three particular Acts were related to raise the question in respect of the three main stages in the constitutional development of India. The first covers the legislative powers of the Indian Legislature during the period prior to the Government

       1.Necessity for this reference arose out of the decision of the Federal Court in Jatindra Nath Guptas case (1949) F.C.R. 595.

       of India Act, 1915. The second is in respect of its legislative power after the Government f India Act, 1935, as amended by the Indian Independence Act, of 1947. The last is in respect of the power of the Indian Parliament under the present Constitution of 1950.

       Held: (1) (Per Fazl Ali, Patanjali Sastri, Mukherjea, Das and Bose JJ. Kania C.J. and Mahajan J. dissenting), Section 7 of Delhi Laws Act, 1912, and Section 2 of the Ajmer-Merwara (Extension of the Laws) Act, 1947, are wholly intra vires. The first portion of section 2 of the Part C States (Laws) Act, 1950, which empowers the Central Government to extend to any Part C State or to any part of such State with such modifications and restrictions as it thinks fit any enactment which is in force in a Part A State, is intra vires.

       (2) (Per Kania O. J., Mahajan, Mukherjea and Bose JJ.). The latter portion of section 2 of the Part C States (Laws) Act, 1950 which empowers the Central Government to make provision in any enactment extended to a. Part C State, lor repeal of amendment of any law (other than a Central Act) which is for the time being applicable to that Part C State, is ultra vires.

       (3) (Per Fazl Ali, Patanjali Sastri and Das J J.). The latter portion of S. 2 of the Part C States (Laws) Act, 1950, is also intra vires.

       (4) (Per Kania O.J.). Section 7 of the Delhi Laws Act, 1912, and S.2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, are ultra vires to the extent power is given to the Government to extend Acts other than Acts of the central Legislature to the Provinces of Delhi and Ajmer-Merwara respectively inasmuch as to that extent the Central Legislature has abdicated its functions and delegated them to the executive Government.

       To the extent that S. 2 of the Part C States (Laws) Act, 1950, empowers the Central Government to extend laws passed by any Legislature of a Part A State to a Part C State is ultra vires.

       (5) (Per Mahajan J.). Section 7 of the Delhi Laws Act, 1912, and S: 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 are ultra vires in the following particulars:

       (i) inasmuch as they permit the executive to apply to Delhi and Ajmer Merwara, laws enacted by legislatures not competent to make laws for those territories and which these legislatures may make within their own legislative field, and

       (ii) inasmuch as they clothe the executive with co-extensive legislative authority in the matter of modification of laws made by legislative bodies in India.

       Section 2 of the Part C States (Laws) Act, 1950, is ultra vires in so far as it empowers the Central Government (i) to extend to a Part C State laws passed by a legislature which is not competent to make laws for that Part C State and (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).

       Delegated Legislation

       Per Fazl All J.: (1) There can be no doubt that If the legislature completely abdicates its functions and sets up a parallel legislature transferring all its powers to it, that would undoubtedly he 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 transferredfo another authority. But when the legislature retains its dominant power intact and can when ever it please destroy the agency it has created and set up another or take the matter directly into its own hands, it has not pared with its own legislative power. The act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the legislature by which the sub6rdinat~ authority was entrusted with the power to do the act.

       (2) The legislature in order to function effectively, has to call for sufficient data, has to legislate for the future as well as for the present and has to provide for a multiplicity of varying situations which maybe sometimes difficult to foresee. In order to achieve its object, it has to resort to various types and forms of legislation, entrusting suitable agencies with the power to fill in details and adapt legislation to varying circumstances. Hence, what is known as conditional legislation, and what is known as subordinate legislation, which involves giving power to subordinate authorities to make rules and regulations to effectuate the object and purpose for which a certain law is retracted, have-been recognized to be permissible forms of legislation on the principle that a legislature can do everything which is ancillary to or necessary for effective legislation. It follows that the legislature can resort to any other form of legislation on the same principle, provided that it acts within the limits of its power, whether imposed from without or conditioned by the nature of its duties it is called upon to perform.

       (3) The position may be summed up as follows :

       (i) The legislature must normally discharge its primary legislative function itself and not through others.

       (ii) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its powers of legislation.

       (iii) It cannot •abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature.

       (iv) The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American Courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line. beyond which delegation amount to "abdication and self-effacement."

       (4) The power to introduce necessary restrictions and notifications is incidental to the power to adopt or apply the law. The modifications contemplated are such as can be made within the frame work of the Act and .not such as to effect its identity or structure or the essential purpose to be served by it.

       This form of legislation (delegated legislation as used in popular sense) has become a present-day necessity, and it has come to stay-it is both inevitable and indispensable. The legislature has now to make so many laws that it has no time to devote to all the legislative details, and sometimes the subject on which it has to legislate is of such a technical nature that all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject. Again, when complex schemes of reform are to be the subject of legislation, it is difficult to bring a self-contained and complete Act straightaway, since it is not possible to foresee all the contingencies and envisage all the local requirements for which provision, is to be made. Thus, some degree of flexibility becomes necessary, so as to permit constant adaptation to unknown future conditions without the necessity of having to amend the law again and again. The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary, and utilize the results of its investigations and experiments in the best way possible. There may also arise emergencies and urgent situations requiring prompt action and the entrustment of large powers to authorities who have to deal with the various situations as then arise .

       But while emphasizing that delegation is in these days inevitable, one should not omit to refer to the dangers attendant upon the injudicious exercise of the power of delegation by the legislature. The dangers involved in defining the delegated power so loosely that the area it is intended to cover cannot be clearly ascertained, and in giving wide delegated powers to executiv6 authorities and at the same time depriving a citizen of protection by courts again 1st harsh and unreasonable exercise of powers, are too obvious to required elaborate discussion." (per Fazl Ali J.)l

       Per Paternal Sastri J.-It is now a commonplace of constitutional law that a legislature created by a written Constitution must act within the ambit of its powers as defined by the Constitution and subject to the limitations prescribed thereby, and that every legislative act done contrary to the provisions of the Constitution is void. India, at all material times,-in 1912, 1947 and 1950 when the impugned enactments were passed-had a written constitution, and it is undoubtedly the function of the courts to keep the Indian legislatures within their constitutional bounds. Hence, the proper approach to questions of constitutional validity is "to look to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively they were restricted." If what has been done is legislation within the general scope of the affirmative words which gave the power and if it violates no express condition or restriction by which the power is limited it is not for any court of justice to inquire further or to enlarge constructively those conditions and restrictions.

       (2) The English doctrine is what may ne called "supremacy within the limits" that is to say, within the circumscribed limits of its legislative powers, a subordinate legislature can do what the Imperial Parliament can do, and no constitutional limit on its powers to delegate can be imported on the strength of the maxim delegatus non potest delegate, because it is not a delegate. The English approach to the problem of delegation of legislativ6 power recognizes the sovereignty of legislative bodies within the limits of th6 constitutions by which they are created and concedes plenary powers of delegation of them within such limits. It regards delegation as revocable entrustment, of the power to legislate to an appointed agent whose act deprives its validity, and legal force from the delegating statute and not as a. relinquishment

       I. (1951) S.O.R., P. 851-853.

       by the delgating body of its own capacity to legislate.l

       (3) It has been well established that the English doctrine of supremacy within limits applies to the Indian legislature, which, when acting within the limits circumscribing its legislative power" has and was intended to have plenary powers of legislation as large and of the same nature as those of Parliament itself. "It is as competent for the Indian Legislature to make .a law delegating legislative power, both quantitatively and qualitatively, as it is for Parliament to do so, provided of course, it acts within the circumscribed limits. No constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in the Indian Councils Act, 1861 or the Government of India Act, 1935, or the Constitution of 1950.

       (4) The true nature of delegated legislation is distinct from creating a new legislative body. In delegated legislation the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instrumentality of its choice. There is no finality about this arrangement, the delegating body being free to destroy the agency it has created and set up another or take the matter directly into its own hands. On the other hand, creation of a new legislative body with general legislative authority and functioning in its own right, there is no delegation of power to subordinate units, but a grant of power to an independent and co-ordinate body to make laws operating of their own force. In the first case, no express provision authorising delegation is required. In the absence of a constitutional inhibition, delegation of legislative power, however extensive, could be made so long as the delegating body retains its own legislative power intact the second case, a positive enabling provision in the constitutional document is required.

       (5) The maxim delegatus non potest delegare is not part of the positional law of India and has no more force than a political precept to-be acted upon by legislatures in the discharge of their function of making Jaws, and .and the courts cannot strike down an Act of Parliament as unconstitutional merely because Parliament decides in a particular instance to entrust its legislative power to another in whom it has confidence or in other words, to exercise such power through its appointed instrumentality, however repugnant such entrustment may be to the democratic process. What may be regarded as politically undesirable is constitutionally competent.

       (6) However wide a meaning may be attributed to the expression "restrictions and modifications" it would not affect the constitutionality of the delegating statute.

       Per, Mukherjea J. (1) In India there being 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~ We need not for this purpose pay any attention to the American doctrine of separation of powers : we must look to the express language of our own Constitution and an approach should be to the essential principles under~ lying the process of law-making which our Constitution envisages.

       (2) 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

       1. Empms v. Burah, 5 I.A. 178 applied.

       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 force. This is on 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. But it is not open to the legislature to strip itself of its essential legislative function and rest 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 work of law-making should be done primarily by the authority to which that duty is entrusted although such authority can employ an outside agency or machinery for the purpose of enabling it/to discharge its duties properly and effectively; but it can on no• account throw the responsibility which the Constitution imposes upon it on. the shoulders of an agent or delegate and thereby practically abdicate its own powers.

       (3) Broadly speaking, the question of delegated legislation has come-up for consideration before courts of law in two distinct classes of cases. One of these classes comprises what is known as cases of" conditional legislation" where according to the generally accepted view, the element of delegation that is present relates not to any legislative function at all, but to the determination of a contingency or event, upon the happening of which the legislative provisions are made to operate. The other class comprises cases of delegation proper, where admittedly some portion of the legislative power has been conferred by the legislative body upon what is described as a subordinate agent or authority.1

       In a conditional legislation the law is full and complete when it leaves the legislative chamber, but the operation of law is made dependent upon the fulfillments of condition, and what is delegated to an outside body is th~ authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled. Conditional legislation has all along been treated in judicial pronouncements not to be a species of delegated legislation at all.

       (4) As regards the other class, it is within powers of Parliament or competent legislative body when legislating within its legislative field to confer subordinate administrative and legislative powers upon some other authority. The question is what are the limits within which such confer-

       1."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 not depend, which cannot be known to the law-making power and must therefore, be a subject of inquiry and determination outside the halls of legislation." (Lock’s Appeal 72 Pa.491).

       "The aim of all legislation is to protect their minds as far as possible into the future and. provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore legislation from the very earliest times, and particularly in more modern times, has taken the form of conditional legislation leaving it to some specified authority to determine the circumstances in which the law shall be applied or to what its operation shall be extended, or the particular class of persons or goods or things to which it shall be applied."

       Per OConnor J. in Baxter v. Ah Way (8 C.L.R .626, 637).

       men or bestowing of powers could be properly made t The legislature cannot totally abdicate its functions and invest another authority with all the powers of legislation which it possesses. Subordinate legislation must operate under the control of the legislature from which it derives its authority, and .on the continuing operation of which its capacity to function rests. But it is not enough that the legislature retains control over the subordinate agent and could recall him at any time it likes, to justify its arming the delegate with all the legislative powers in regard to a particular subject. Subordinate legislation not only connotes the subordinate or dependent character of the .agency which is entrusted with the power to legislate,-but also implies the subordinate or ancillary character of the legislation itself, the making of such .agent is entrusted with. If the legislature hands over its essential legislative powers to an outside authority that would amount to a virtual abdication of its powers and such an act would be in excess of the limits of permissible delegation.

       (5) The essential legislative function consists in the determination or -choosing of the legislative policy and of formally enacting this 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 details 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 frame work of that policy. So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts of which the legislation is to apply.

       The Legislature cannot part with its essential legislative function which Consists in declaring its policy and making it a binding rule of conduct. A surrender of this essential function would amount to abdication of legislative powers in the eye of law. The policy may be particularized in as few .or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority. The court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication, but as the discretion vests with the legislatures in determining whether there is necessity for delegation or not, the exercise of such discretion is not to be disturbed by the Court except in clear cases of abuse. These are the fundamental principles and in respect to the powers of the legislature the constitutional position in. India approximates more to the American than to the English pattern. There is a basic difference between the Indian and the British Parliament in this respect. "There is no constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is fettered by a written constitution and it does not possess the sovereign -powers of the British Parliament. The limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the constitution itself and the right of delegation may be implied in the exercise of legislative powers only to the extent that it is necessary to make the exercise of power effective and complete.

       (6) The word "modification" occurring in section 7 of the Delhi Laws, Act does not mean or involve any change of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made the Judge.

       1. Vide Schechler Poultry Corp. v. United States, 295 U.S. 495.

       Per Das J. (1) The true tests of the validity of a law enacted by the Indian Legislature conferring legislative powers on a subordinate authority .are (i) Is the law within the legislative competency fixed by the instrument creating the legislatures 1 and (ii) Has the legislature effaced itself or abdicated or destroyed its own legislative power 1 If the answer to the first is in the affirmative and that to the second in the negative it is not for any court of Justice to enquire further or to question the wisdom or the policy of the law.

       (2) The principle of non-delegation of legislate powers founded either on the doctrine of separation of powers or the theory of agency has no application to the British Parliament or the legislature constituted by an Act of the British Parliament; (ii) in the ever present complexity of conditions with which Governments have to deal, the power of delegation is necessary for, and ancillary to the exercise of legislative power and is a component part of it ; (iii) the operation of the act performed under delegated-power is directly and immediately under and by virtue of the law by which the power was delegated and its efficacy is referable to that antecedent law; (iv) if what the legislature does is legislation within the general scope of the .affirmative words which give the power and if it violates no express condition or restriction by which that power is limited, then it is not for the Court to inquire further or enlarge constructively those conditions or restrictions; (v) while the legislature is acting within its prescribed sphere there is, except .as hereinafter stated, no degree of, or limit to, its power of delegation of its legislative power, it being for the legislature to determine how far it should seek the aid of subordinate agencies and how long it shall continue them, and it is not for the Court to prescribe any limit to the legislatures power of .delegation; (vi) the power of delegation is, however, subject to the qualification that the legislature may not abdicate or efface itself, that is, it may not, without preserving its own capacity intact, create and endow with its own capacity a new legislative power not created or authorised by the Act to which it owes its own existence (vii) the impugned laws may also be supported .as instances of conditional legislation within the meaning of the decision in Queen v. Burah (5 I.A. 178).

       Per Bose J.-The Indian Parliament can legislate along the lines of Queen v. Burah, that is to say, it can leave to another person or body the introduction or application of laws which are, or may be, in existence at that time in any part of India which is subject to the legislative control of Parliament, whether those laws are enacted by Parliament or by a State Legislature set up by the Constitution. But delegation of this kind cannot proceed beyond that; it cannot extend to the repealing or altering in essential particulars laws which are already in force in the area in question.

       Per Kania O. J. (contra) (1) The question of constitutionality can arise only if there is some touchstone by which the question could be decided. In respect of a sovereign body like the British Parliament there is no touchstone. They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws. Such laws are changed by some body with the same ease as any other law. The British Constitution is flexible and its flexibility consists in the right of the Crown and the two Houses to modify or repeal any law whatever. Under a rigid constitution, the term constitutional" means that a particular enactment belongs to the articles of the Constitution and cannot be legally changed with the same laze and in the same manner as ordinary laws and it is because of this characteristic that Courts are invested with powers to determine whether a particular legislation is permitted or not by the Constitution. Such as question can never arise in respect of an enactment of the British Parliament.

       (2) As against this, the Governor-General in Council with legislative powers established under the Indian Councils Act, 1861, stood in a different position. Its charter was the Indian Councils Act and its powers were there necessarily defined and limited. That power at any time could be withdrawn, altered and expanded or further curtailed. As the powers were conferred by an Act of British Parliament the question whether the action of the Governor-General in Council in his legislative capacity was within or without its legislative power was always capable of being raised or decided by court of law. The Indian Legislature in 1861 and up to 1915 was a subordinate legislature and not a sovereign legislature. Again, the executive Government of India was not responsible to the Indian Legislature and the composition of the Indian Legislature was such that the Executive Officers together with the nominated members constituted the majority in the Legislature. The result was that the Legislative Council was practically a creature of the Executive Government of India, and its functions were practically limited to registering the decrees of the Executive Government. It is therefore quite improper to compare the power and position of the Indian Legislature so established and functioning with the supreme and sovereign character of the British Parliament.

       (3) Diarchy was created by the Act of 1915 but there was no federation under the Act. Even the Government of India Act, 1935, was passed by the British Parliament and therefore the powers of the Indian Central Legislature as well as the Provincial legislatures were capable of being altered, expanded or limited according to the desire of the British Parliament without the Indian Legislature, or the people of India having any voice in the matter. Even under this Act, the Executive Government was not responsible to the Central Legislature, as the case may be.

       (4) The result of the Indian Independence Act, 1947, was to remove the authority of the British Parliament to make any laws for India. The Indian Central Legislature was given power to convert itself into a Constituent Assembly to frame a Constitution for India, including the power to amend or repeal the Government of India Act, 1935, which till the new Constitution was adopted, was to be Constitution of the country. Even with that change the Executive Government was not responsible to the Central Legislature, In fact with the removal of the control of the Parliament it ceased to be responsible to anyone.

       (5) Under the Constitution of India as adopted on the 26th of January, 1950, the ministers are responsible to the legislatures and to that extent the scheme of the British Parliament is adopted in the Constitution. The principal point of distinction between the British Parliament and the Indian Parliament still, however, remains, namely, that the Indian Parliament is the creature of the Constitution of India and its powers, rights, privileges and obligations have to be found in the relevant articles of the Constitution of India. It is not a sovereign body, uncontrolled with unlimited powers. The Constitution of India has conferred on the Indian Parliament powers to make laws in respect of matters specified in the appropriate places and schedules and curtailed its rights and powers under certain other articles and in particular by the articles found in Chapter III dealing with Fundamental Rights. But subject to all these limitations and controls laid down in the Constitution, 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.

       (6) What is conveyed by the word "Delegation" 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 by itself. Those essentials are preserved; when the legislature specifies the basic conclusions of fact, upon ascertainment of which from relevant data, by a designated administrative agency, it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments 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 also is sometimes described as a delegation of legislative powers, 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) The expressions "subsidiary" or "conditional legislation" are used to indicate that the powers conferred on the subordinate bodies were not power of legislation but powers conferred only to carry the enactment into operation and effect, or that the Legislature having discharged legislative function had specified the basic conclusions of fact upon ascertainment of which, from relevant data by a designated administrative agency, that body was permitted to bring the statute into operation.

       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 an authority or discretion as to its execution to be exercised under and in pursuance of law. The first cannot be done; to the latter no valid Objection can be made.l

       (8) While a legislature, as a part of its legislative functions, can confer powers to make rules and regulatiops for carrying the enactment into operation and effect, ~nd while a legislature has power to lay down the policy and principles providing the rule of conduct,_ and while it may further provide that on certain data or facts being found and ascertained by an executive authority, the operation of the - Act can be- extended to certain areas or may be - brought into force on such determination which is described as conditional legislation, the power to delegate legislative functions generally is not warranted under the Constitution of India at any stage. The power of delegation, in the sense of the legislative conferring power, on either the executive Government or another authority to lay down the policy underlying a rule of conduct" is not permitted.

       Per Mahajan J (contra.)-(i) It is settled maxim of constitutional law that a legislative body cannot delegate its power. Not only the nature of legislative power but the very existence of representative Government depends on the doctrine that legislative powers cannot be transferred. The-legislature cannot 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 view that unless expressly prohibited a legislature has a general power to delegate its legislative functions to a subordinate authority is not supported by authority or principle. The correct view

       1.Observations of Ranny J. in Cincinnati W & Z. R. Co. v. Clinton County Commissioners. 1 Ohio St. 88 applied.

       is that unless the power to delegate is expressly given by the constitution, a legislature cannot delegate its essential legislative functions. As the Indian Constitution does not give such power to the legislature, it has no power to delegate essential legislative functions to any other body.

       (ii) Abdication by a legislative body need not necessarily amount to complete effacement. There is an abdication when in respect of a subject in the Legislative List that body says in effect that it will not legislate but would leave it to another to legislate on it.

       Summary of the Opinions

       "Because of the elaborate care with which every aspect of the problem was examined in that case, the decision has tended to become diffused, but if one concentrates on the matters actually decided and forgets for a moment the reasons given, a plain pattern emerges leaving only a narrow margin of doubt for future dispute.

       The Court had before it the following problems. In each case, the Central Legislature had empowered an executive authority under its legislative control to apply, at its discretion, laws to an area which was also under the legislative sway of the Centre. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. The variations were as follows:

       (1) Where the executive authority was permitted, at its discretion; to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the legislative sway of the Centre to the new area.

       This was upheld by a majority of six to one.

       (2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances.

       This was also upheld, but this time by a majority of five to two.

       (3) Where the executive authority was permitted to select future Central Laws and apply them in a similar way:

       This was upheld by five to two.

       (4) Where the authorizations was to select future Provincial laws and apply them as above.

       This was also upheld by five to two.

       (5) Where the authorizations was to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws, Central or Provincial, with or without modification :

       This was held to be ultra vires by a majority of four to three.

       (6) Where the authorization was to apply existing laws, either Central or Provincial, with alterations and modifications and

       (7) where the authorization was to apply future laws under the same conditions.

       The views of the various members of the Bench were not as clear cut here as in the first five cases so it will be necessary to analyze what each Judge said The opinion of Kania, C.J. will be found at pages 345-346. Put briefly his view was that only Parliament can effect modification in any essential legislative function viz., "the determination of the legislative policy and its formulation as a rule of conduct". For this reason he was prepared to uphold what he called" conditional" or "subsidiary" or "ancillary" legislation, but not the application by ail executive authority of Provincial Acts to which the Central Legislature had not applied its mind at all (pp. 347, 348) ; and for the same reason he excluded the application of all future legislation.

       "The present Chief Justice (Mahajan as he then was) took an even stricter view. He was prepared to authorise delegation of ancillary or ministerial powers (pages 386 and 388) but except for that he said-

       "Parliament has no power to delegate its essential legislative functions to others, whether State Legislatures or Executive authorities, except, of course, functions which really in their true nature are ministerial."

       "As against this, three of the Judges were more liberal. Das J. was of the opinion that so long as Parliament did not abdicate or efface itself and retained control in the sense of retaining the right to recall or destroy or set right or modify any thing its delegate did, it could confer on the delegate all the rights of legislation which it itself possessed (page 425). Patanjali Sastri J. (as he then was) took the same extreme view (pages 362, 363 and 366). Fazi Ali J. did not go as far though he upheld all the Acts which were impugned in that case. At page 365 he said that-

       "utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. !In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation."

       He dealt with the power to modify at pp. 359, 360 and said-

       "The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law. The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to "adapt a law without giving it the power to make suitable changes."

       "The other two Judges took an intermediate view. Mukherjea J. said that essential legislative functions cannot be delegated and at pp. 400 and 401 he indicated what he meant.

       "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."

       "and at page 405-

       "with the merits of the legislative policy, the Court of law has no concern. It is enough if it is defined with sufficient precision and definiteness so as to furnish sufficient guidance to the executive officer who has got to work it out. If there is .no vagueness or indefiniteness in the formulation of the policy, I do not think that a Court of law has got any say in the matter."

       Dealing with the word "modification" he said at p. 407: The word modification does not, in my opinion, mean or involve any change

       of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made the judge .... "

       at p: 408, he explained this further and limited the modifications to "local adjustments or chances of a minor character."

       "Bose, J. contented himself at pp. 439, 440 by saying that the delegation cannot extend to the" altering in essential particulars of laws which are already in force in the area in question. "But he added at p. 440:

       "My answers are, however, subject to this qualification. The power to restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate and that, namely the power to legislate, all authorities are agreed, •cannot be delegated by a legislature which is not unfettered."

       "in our opinion, the majority view was that an executive authority can be authorised to modify either existing or further laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinion set above: it cannot include a change of policy." 1