Back
1878 Supreme(SC) 13
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SELBORNE, SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, AND SIR ROBERT P. COLLIER.
HER MAJESTY THE QUEEN - Appellant
Versus
BURAH - Respondents
On Appeal From The High Court at Bengal.
Decided On : May 15, 1878, June 5, 1878.
Solicitor for Appellant and Respondent: The Solicitor, India Office.
The legislature possesses plenary powers within its prescribed limits and is not a mere agent of a superior authority. It may validly enact conditional legislation, delegating to the executive the discretion to determine the time and territorial application of the law.
Headnote:(A) Councils Act, 1861 - Section 22; High Courts Act - Sections 9 and 11; Act XXII of 1869 - Sections 4, 5, and 9 - Jurisdiction of High Court - Removal of specific districts from judicial jurisdiction - Validity of conditional legislation - Delegation of power to executive authority.
(B) Plenary legislative powers - A legislature created by a superior authority with defined limits possesses plenary powers within those limits and is not a mere agent or delegate of that authority. It may exercise these powers either absolutely or conditionally.
(C) Conditional legislation - The power to delegate the determination of the time or territorial application of a law to an executive authority is a valid exercise of legislative power, provided the legislature has determined the policy and the limits of the discretion.
Facts of the case:
Respondents were convicted of murder by a local officer in a hill district and sentenced to transportation for life. They appealed to the High Court. The High Court assumed jurisdiction, holding that a legislative act and subsequent executive notification removing the district from the High Court's jurisdiction were void because the legislature had improperly delegated legislative power to the executive.
Findings of Court:
The legislature had the authority to remove territories from the High Court's jurisdiction. The delegation of power to the executive to extend the act to specific districts via notification was a valid form of conditional legislation and not an invalid delegation of legislative authority.
Issues: Whether the legislature could legally delegate the power to an executive authority to determine the territorial application and commencement of an act, and whether such delegation was ultra vires the legislative capacity.
Ratio Decidendi: The legislature is not an agent of the superior legislature but possesses plenary powers. Conditional legislation, where the legislature defines the law and entrusts the executive with the discretion to apply it to certain areas or at certain times, is a valid exercise of legislative power. The efficacy of acts done under such delegation is derived directly from the enabling act itself.
Result: Appeal allowed.
Legal Category Hierarchy
-
constitutional law
-
legislative power
-
delegated legislation
- conditional legislation
-
delegated legislation
-
legislative power
-
practice and procedure
-
jurisdiction
- appellate jurisdiction
- territorial jurisdiction
-
jurisdiction
-
crime and sentencing
-
offences against the person
- murder
-
offences against the person
Judgement
Appeal from a judgment of a full bench of the High Court (March 26, 1877).
The Respondent Burah and one Book Singh since deceased, were tried by the Deputy-Commissioner of the Khasi and Jaintia Hills, in the East Indies, on a charge of murder of one Kana Lalung, committed near Yeothymmai, in the territory known and defined as the Jaintia and Khasi Hills, and sentenced to the punishment of death, but the sentence was afterwards, on the 23rd of April, 1876, commuted by the Chief Commissioner of Assam to transportation for life.
On the 9th of July, 1876, the officer in charge of the Kamroop Jail, where the said Burah and Book Singh were in confinement as prisoners under the said last-mentioned sentence, forwarded to the High Court at Calcutta petitions of appeal from them, dated the 9th of July, 1876, against the sentence.
The High Court having doubts whether they had jurisdiction over the prisoners referred the question of their power to entertain the petitions to a Full Bench of the said Court.
The question was argued before a Full Bench on two occasions, and the majority of the High Court, on the 26th of March, 1877, decided that the said Court had such jurisdiction, and that the record of the case ought to be sent for in order to the admission of the appeal, and the said Court passed judgment and ordered the same accordingly.
By Act XXII. of 1869 of the Council of the Governor-General of India in Council for making laws and regulations, which is entitled u An Act to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Acts, and for other purposes," it is, among other things, provided as follows—
Sect. 2. " This Act shall come into operation on such day as the Lieutenant-Governor of Bengal shall by notification in the Calcutta Gazette direct.
Sect. 3. "On and after such day, Act No. VI. of 1835 (so far as it relates to the Khasi Hills, therein termed ”Cossyah Hills), and the Bengal Regulation X. of 1822, shall be repealed Provided that such repeal shall not affect any settlement of land revenue or other matters made under the latter enactment with zemindars or other persons in any place to which this Act applies.
Sect. 4. " Save as hereinafter provided, the territory known as the Garo Hills, bounded on the north and west by the district of Gawalpara, on the south by the district of Mymensingh, as defined by the Revenue Survey, and on the east by the Khasi Hills, is hereby removed from the jurisdiction of the Courts of Civil and Criminal Judicature, and from the control of the offices of revenue constituted by the Regulations of the Bengal Code and the Acts passed by any Legislature now or heretofore established in British India, as well as from the law prescribed for the said Courts and offices by the Regulations and Acts aforesaid. And no Act hereafter passed by the Council of the Governor-General for making laws and regulations shall be deemed to extend to any part of the said territory, unless the same be specially named therein. r Sect. 5. " The administration of civil and criminal justice, and the superintendence of the settlement and realization of the public revenue, and of all matters relating to rent, within the said territory, are hereby vested in such officers as the said Lieutenant-Governor may, for the purpose of tribunals of first instance or of reference and appeal, from time to time appoint. The officers so appointed shall, in the matter of the administration and superin tendence aforesaid, be subject to the direction and control of the said Lieutenant-Governor, and be guided by such instructions as he may from time to time issue.
Sect. 8. " The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor-General, or of the said
