DELEGATED LEGISLATION

DELEGATED LEGISLATIONC h a p t e r I V

SECTION 1. INTRODUCTORY

In all democratic countries, like the United Kingdom, the United States and India, delegated legislation is being resorted to exteiR&ively. The great increase in delegated legislation in modern

•'tira' is due partly to the development o f the welfare state, and partly to the need to cope with emergencies of various kinds. Though law making is the primary function of the Legislature, yet in no country does the Legislature monopolise the whole of the legislative power. Out of the total legislative output, relatively only a small part is enacted by the Legislature itself; a large bulk of legislation is made by the administration under powers conferred on it by the Legislature^ There is, in fact, no statute passed by the Legislature to-day which does not confer some legislative or rule-making power on the administration. The A ct conferring legislative power is known as the “Parent A c t” ; the subordinate laws which emerge under it are known by a great diversity of names such as rules, regulations, schemes, bylaws, statutory rules and orders, etc. The administrative

.authority on which the legislative power is conferred acts as the legislature.

Various issues arising in the area of delegated legislation are considered in this chapter, <?• g., what factors have promoted the growth of this institution? Does the Constitution limit the power of the Indian Parliament to confer legislative power on the administration ? W hat controls are placed on the administration in the exercise of its rule-making powers ?

1. Under the Indian Constitution, some powers of legislation, have been conferred on the Executive which are not discussed here. See, Jain, Indian Constitutional Law 110-111, 193-199 (1962).

SECTION 2. GROWTH AND DEVELOPMENT

SECTION 2 ] DELEGATED LEGISLATION 173

COMMITTEE ON MINISTER’S POWERS REPORT 4-6, 21-4, 51-3, 53-4 (1932)

GENERAL CONSIDERATION

There are a few general considerations to be stated. In the British Constitution there is no such thing as the absolute separation of legislative, executive, and judicial powers; in practice it is inevitable that they should overlap. In such constitutions asvt^pse o f France and the United States of America, attempts to keep them rigidly apart have been made, but have proved unstc"cessful The distinction is none the less real and for our purposes important. One of the main problems of a modern democratic state is how to preserve the distinction, whilst avoiding too rigid an insistence on it, in the wide borderland where it is convenient to entrust minor legislative and judicial functions to excutive authorities.

It is customary to-day for Parliament to delegate minor legislative powers to subordinate authorities and bodies. Ministers of the Crown are the chief repositories of such powers; but they are conferred also, in differing degrees, upon Local Authoritresr'statutory corporations and companies, universities, arid representative bodies of solicitors, doctors and other professions. Some people hold the view that this practice o f delegating legislative powers is unwise, and might be dispensed with altogether...It has even been suggested that the practice of passing such legislation is wholly bad, and should be forthwith abandoned. W e do not think that this is the considered view of most o f those who have investigated the problem, but many o f them would like the practice curtailed as much as possible. It may be convenient if on the threshold o f our report we state our general conclusion on the whole matter. W e do not agree with those critics who think that the practice is wholly bad. W e see in, it definite advantages, provided that the statutory powers are exercised and the statutory functions performed in the right way. But abuseare incidental to it, and we believe that safeguards are ifthe country is to continue to enjoy the advantage'^ of the practice without suffering from ^ts inherent dangers.

But in ti si||i ^diether good or bad t|?e development of the practice i§ i ev|$abl . It is a natural; : in the of

constitutional law, of changes in our ideas of government which have resulted from changes in political, social and economic ideas, and of changes in the circumstances of our lives which have resulted from scientific discoveries....

It is, as Professor Dicey pointed out in “The Law of The Constitution,” futile for Parliament to endeavour to work out the details of large legislative changes. Such an endeavour only results in cumbersome and prolix statutes, and the evil is so apparent that in modern times Acts o f Parliament constantly contain provisions empowering the Privy Council, or one o f the Ministers of the Crown^'fe^ make regulations under the A ct for the determination of details which cannot be settled by Parliament.

Yet th e 'll^ ct ice , useful and necessary as it is, does to some extent entail an abandonment by Parliament o f its legislative functions. The details which are left to be determined by the Privy Council or a Minister may closely affect the rights and property of the subject, and even personal liberty. There is at present no effective machinery for Parliamentary control over the many regulations of a legislative character which are made every year by Ministers in pursuance of their statutory powers, and the consequence is that much of the most important legislation is not really considered and approved by Parliament. This may or may not make for efficiency; but its extent is plainly an innovation in constitutional practice.

: GROWTH OF DELEGATION

Before the middle o f the nineteenth century the main functions o f government in England were those of defence and police. The State Departments were few in number, and the management o f the life of the people was not regarded as a function of government. In these circumstances, Parliament was well able to pass all the necessary legislation itself, and there was no need to resort to any extensive delegation of legislative power. W e have, however, already pointed out that legislative powers were delegated on a modest scale even in the seventeenth and eighteenth centuries....

...[T]he change in the conception o f the function of government .... dates from the middle of the nineteenth century and was exhaustively analysed by Professor D icey in “ Law and opinion in England” in two lectures entitled “ The Growth of Collectivism” and “Period of Collectivism." Even in 1905 that distinguished constitutional lawyer regarded collectivism as predoiniiiajit in English

174 INDIAN ADMINISTRATIVE LAW [ CHAPTER 4

legislation and expressed the opinion that its force was neither spent nor on the decline, but the logic of events was leading to the extension and the development of legislation “which bears the impress of collectivism.” H e found the true explanation in conditions not wholly democratic or even political.

There can, we think, be no doubt that the practice o f delegating legislative powers to the Ministers of the Crown on the large and generous modern scale is the indirect consequence o f this sort of legislation. Parliament nowadays passes so many laws every year, that it lacks the time to shape all the legislative details.... Much of the detail is so technical as to be unsuitable for Parlia^isritary discussion—for example, “ Patents, copyright, trade marks, designs, diseases, poisons, the pattern of miners’ safety l^ip^.s, wireless telegraphy, the heating and lighting values of gas, legal procedure, or the intricacies of finance” . Many of the laws affect people's lives so closely that elasticity is essential. It is impossible to pass an A ct of Parliament to control an epidemic of measles or an outbreak of foot-and-mouth disease as and when it occurs, and such measures as the Public Health A cts must be differently applied in different parts of the country. Free sale of poisons is now recognised to be contrary to the best interests of society :— “ W h y should Parliamentary time be occupied with the passing of a new A ct merely because the doctors have come to the conclusion that ecgonine and heroin ought to be added to the statutory schedule?”

These are the practical considerations which have induced Parliament to resort to the practice o f wholesale and almost indiscriminate delegation. “ England” , said Lord Beaconsfield, “is not governed by logic, she is governed by Parliament.” The practice of delegation has been adopted from time to time under pressure of circumstance, and Parliament has steadily pursued a course without fully realising its attendant risks.

The truth is that if Parliament were not willing to delegate law-making power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires.

In 1916 the American lawyer and statesman, M r. Elihu in his presidential address to the American Bar Association, after summarising the agencies at work in the public life of the United States in the twentieth century, said :

“ Before these agencies, the old doctrine prohibiting the?dele|ation o f le^slatiye powers Jia^ retired

SECTION 2 J ADMINISTRATIVE FUNCTIONS 175

field and given up tlie fight. There will be no withdrawal from these experiments. W e shall go on; we shall expand them, whether we approve theoretically or not, because such agencies furnish protection to right, and obstacles to wrong doing, which under our new social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation.”In our opinion these words are as applicable to the United

Kingdom today as they were to the United States in 1916....

' W e doubt, however, whether Parliament itself has fully realised how extensive the practice of delegation has become, or the extent to which it has surrendered its own functions in the process, or how easily the practice might be abused.

NECESSITY FOR DELEGATION

. W e have already expressed the view that the system of delegated legislation is both legitimate and constitutionally desirable for certain purposes, within certain limits, and under certain safeguards. W e proceed to set out briefly—mostly by way of recapitulation—the reasons which have led us to this conclusion

(1) Pressure upon Parliamentary time is great. The more procedure and subordinate matters can be withdrawn from detailed Parliamentary discussion, the great will be the time which Parliament can devote to the consideration of essential principles in legislation.

(2) The subject matter of modern legislation is very often of a technical nature. Apart from the broad principles involved, technical matters are difficult to include in a Bill, since they cannot be effectively discussed in Parliament....

(3) If large and complex schemes of reform are to be given technical shape, it is difficult to work out the administrative machinery in time to insert in the Bill all the provisions required; it is impossible to foresee all contingencies and local conditions for which provision must eventually be made....

(4) The practice, further, is valuable because it provides for a power of constant adaptation to unknown future conditions without the necessity of amending legislation. Flexibility is essential. The method of delegated legislation permits of the rapid utilisation of experience, and enables the results of consultation with interests affected by the Ciperation o f new Acts to be translated into practice. In.. matters, for example, like mechanical roa4 transport, where

176 INDIAN ADMINISTRATIVE LA W [ CHAPTER 4

technical development is rapid, and often unforeseen, delegation is essential to meet tliiSiew positions which arise.

(5) The practice, again, permits of experiment being made and thus affords an opportunity, otherwise difficult to ensure, o f utilising the—lessons of experience. The advantage o f this in matters, for instance, like town planning, is too obvious to require detailed emphasis.

( 6) In a modern state there are many occasions when there is a sudden need of legislative action. For many such needs delegated legislation is the only convenient or even possible remedy. N o doubt, where there is time, on legislative issues of great magnitude, it is right that Parliament itself should either decide what the broad outlines of the legislation shall be, or at least indicate the general scope of the delegated powers which it considers are called for by the occasion.

But emergency and urgency are matters of degree; and the type of need may be of greater or less national importance. It may be not only prudent but vital for Parliament to arm the executive Government in advance with almost plenary power to meet occasions of emergency, which affect the whole nation— as in the extreme case o f the Defence of the Realm A cts in the Great W ar, where the exigency had arisen; or in the less extreme case o f the Emergency Powers A ct, 1920, where the exigency had not arisen but power was conferred to meet emergencies that might arise in the future....

But the measure o f the need should be the measure alike of the power and of its limitation. It is of the essence of constitutional Government that the normal control of ParHament should not be suspended either to a greater degree, or for a longer time, than the exigency demands.

W e end these observations with a truism. Emergencies are exceptional; and exceptions cannot be classified in general language. W e therefore make no attempt, beyond stating the principle above mentioned, to lay down any general rules about the delegation by Parliament to the Executive o f powers to legislate oi||occasioii$7<6f emergency. It may suffice for purposes o f more limited exigency to arm particular Departments o f State with power tp pass efiaer regulations for dealing with specific difficulties" suddenly arising and calling for instant preventive or remedial St?c ps in" their special field of administration. Epidemics are a $ood exawpie of the ktter n eed ;..,

SECTION 2 J DELEGATED LEGISLATION 177

SUMMARY OF ARGUMENTS OF THE CRlTiCS OF DELEGATED LEGISLATION

For these reasons a system of delegated legislation is indispensable. Indeed the critics of the system do not seek to deny its necessity in some form. Their complaint lies rather against the volume and character o f delegated legislation than against the practice o f delegation itself; and in so far as they base their complaints on criticism of the administration as such, we doubt whether they are clearly conscious o f any distinction between the legislation of Parliament itself and the delegated legislation of Ministers. W e agree with them in thinking that there are real dangers incidental to delegated legislation; and we think it may be convenient to summarize the main criticisms, although we do not thereby commit ourselves to complete concurrence with the critics....

(1) A ct of Parliament may be passed only in skeleton form and contain only the barest general principles. Other matters of principle, transcending procedure and the details of administration, matters which closely affect the rights and property of the subject, may be left to be worked out in the Departments, with the result that laws are promulgated which have not been made by, and get little supervision from Parliament. Some of the critics suggest that this practice has so far passed all reasonable limits, as to have assumed the character of a serious invasion of the sphere o f Parliament by the Executive. The extent o f its adoption is, they argue, excessive, and leads not only to widespread suspicion and distrust of the machinery of Government, but actually endangers our civic and personal liberties.

(2) The facilities afforded to Parliament to scrutinise and control the exercise of powers delegated to Ministers are inadequate. There is a danger that the servant may be transformed into the master.

(3) Delegated powers may be so wide as to deprive the citizen of protection by the Courts against action by the Executive which is harsh, or unreasonable,

(4) The delegated power may be so loosely defined that the area it is intended to cover’ cannot be clearly known, and it is said that uncertainty of this kind is unfair to those affected.

(5) W hile provision is usually mqde(a) for reasonable public notice, and(b) for consultation in advance with the interests affected

where they are organized,


(6) The privilegpd position o£ the Crown as against the subject in legal proceedings places the latter at a definite disadvantage in obtaining redress in the Courts for illegal actions committed under the authority of delegated legislation.

Each of these criticisms is important, but they do not destroy the case for delegated legislation. Their true bearing is rather that there are dangers in the practice; that is liable to abuse; and that safeguards are required. Nor do we think that either the published criticism or the evidence we have received justifies an alarmist view o f the constitutional situation. W hat the system lacks is coherence and uniformity in operation. Its defects, as we have sought to show, are the inevitable consequence of its haphazard evolution. Our recommendations are intended to remove these defects; and we believe that they should go far to meet the difficulties which the critics have indicated. For the most part the dangers are potential rather than actual; and the problem which the critics raise is essentially one of devising the best safeguards.


SECTION 3. THE NATURE OF DELEGATED LEGISLATION

WADE, ADMINISTRATIVE LAW249-257 (1961)

Administrative Legislation

One o f the principal administrative activities is legislation. Indeed, if we measure merely by volume, much more legislation is produced by the executive government than by the legislature. A ll the orders, rules and regulations made by Ministers, departments, and other bodies owe their legal force to Acts of Parlianigpt...Parliament, is obliged to delegate very extensive law-making po^eir ove|:„ mat ters of detail and content itself with providing a framework o f ' more or less permanent statutes....

This administrative legislation is traditionally teokcd upon ag.a' necessary evil, an unfortunate but inevitable infringement o f the separation of powers. But this is an old-fashioned view, for in reality it is no more difficult to ~j€stify it in theory than it is possible tQ do without it in practice, T'here only a haay bo^d^r-Iiiie

between- legislation and administration, ani|;|the assumption that they are two fundamentally different forms o f power is misleading. There are some obvious general differences. But the idea that a’^clean division can be made (as it can, more probably, in the case o f the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them individually, or in some particular case..,. For legal purposes—judicial control, statutory interpretation, and the doctrine of ultra vires— there is common ground throughout both subjects. W hat does matter is that both involve the grant of wide discretionary powers to the government....

If we look at the practical side, it is at once plain that administration must involve a great deal of general law-making, and that no theory which demands segregation of these functions can be sound. Parliament can lay down that cars must carry suitable lights, or that the price of eggs shall be fixed, or that the employment of dock workers shall be controlled, or that there shall be relief from double taxation. But where, as happens so frequently, such legislation can be properly administered only constantly adjusting it to the needs o f the situation, discretion has to be allowed. This is the work of administration, in the clearest sense of the term, and the fact that it may also be said to be legislation is of no relevance. As Parliament thrusts ever greater responsibilities on to the executive, and social and other regulatory services are constantly multiplying, delegated legislation is increasing simply as a function of the growth of discretionary power. The division of territory between the legislature and the executive is dictated by their respective capabilities. Much work that is legislative is equally truly administrative, and does not necessarily belong to the legislature at all. W here the legislature comes in is in its political and representative function, as the elected body to which ministers must answer for their administration. The trae constitutional problem presented by delegated legislation is not that it exists, but that its enormous growth has made it difficult for Parliament to watch over it as it watches over other departments of administration,...

The growth o f a problem

Uneasiness at the extent of delegated legislation began to be evident towards the end of the nineteenth century. It was not a new device, but the scale on which it began to be used in what D icey


called The Period of Collectivism’ was a symptom of a new era. Perhaps the most striking piece of delegation ever effected by Parliament was the Statute of Proclamations, 1539 (repealed in 1547), by which Henry V III was given wide power to legislate by proclamation. In 1531 the Statute of Sewers delegated legislative powers to the Commissioners of Sewers, who were empowered to make drainage schemes and levy rates on landowners. These w ere outstanding early examples of a technique which Parliament has always felt able to use. But the flow of these powers was no more than a trickle until the age of reform arrived in the nineteenth century. Then very sweeping powers began to be conferred. The Poor Law A ct of 1834 gave to the Poor Law Commissioners who had no responsibility to ParHament, power to make rules and order for ‘the management o f the poor’. This power, which lasted for over a century (though responsibility to Parliament was established in 1847). remained leading example of delegation which put not merely the detailed execution but also the formulation of policy into executive hands. But this was part of a particular experiment in bureaucratic government. A s a thing in itself, delegated legislation did not begin to provoke criticism until later in the century,...The first W orld W a r inevitably brought a great increase, as the government assumed almost unbounded emergency powers under the Defence of the Realm A ct, 1914. In 1920, when the war-time surfeit had not yet worn off, rules and orders were five times as bulky as the statutes. Delegated legislation therefore became a target when the outcry against the growth o f administrative powers developed in the 1920’ s. It formed the first of the matters referred to the Committee on Ministers’ Powers, whose Report was published in 1932. Since that time, although delegated legislation has continued to grow in bulk and importance, it has not been such a subject of controversy. The Second W orld W ar brought another flood of regulations, which hardly abated at first when the war Wc s succeeded by the welfare state....JVic/e general po)vers

A standard argument for delegation is that it is necessary for cases where ParHament cannot attend to small matters o£ detail.: /Btit,, quite apart from emergency powers (considered below), Parliara^iit: sometimes delegates law-making power that is quite general.... Under the Supplies and Services (Extended Purposes) A ct, 1947, controls authorized by many regulations already in force were extended for the following additional purposes:

SECTION 3 J D ELEGA TED LEGISLA TION 181

(а) for promoting the productivity of industry, commerce, and agriculture;

(б) for fostering and directing exports and reducing imports, or imports of any classes, from all or any countries and for redressing the balance of trade; and

(c) generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the interest of the community.

This was much more than ‘emergency’ legislation, in any fair sense of that overworked word. Subject to one single reservation for the sake of freedom of the press, the whole econom ic life o f the community was subjected to executive power....

These sweeping econom.ic controls have now been removed, but statutory social services have inevitably extended the permanent field o f delegated legislation. Some of the regulatory powers are wide, for instance the power in the National Health Service A ct, 1946, for the Minister to control the medical services to be provided, to secure that adequate personal care and attendance is given, and so on. In such cases A ct can do little more than provide an outline, and the only effective control left to Parliament is through the subsequent political responsibility of the Minister.

Taxation

Even this tender subject, so jealously guarded by the House of Commons, has been partially invaded from time to time. Under the Imports Duties Act, 1932, the Treasury was authorized to vary the classes o f goods chargeable and the rates of duty, subject to the views of an advisory committee and subject to affirmative approval by the House of Commons. The schedules of goods liable to purchase tax are similarly variable by Treasury order under the Finance A cts of1948 and 1954, but again subject to an affirmative vote of the House o f Commons if the tax is increased or extended. M any A cts give power to prescribe charges for services rendered, for example by the Post Office or under the National Health Service.

Power to vary Acts o f Parliament

It is quite possible for Parliament to delegate a pow er to amend statutes. This used to be regarded as incongruous, and the clause by which it was done nicknamed ‘ the Henry VIII clause'—because, said the Committee of 1932, ‘That King is regarded popularly as the


impersonation o f executive autocracy’. The usual object was to assist in bringing a new A ct into effect, particularly where previous legislation had been complicated, or where there might be local Acts of Parliament which some centralized scheme had to be made to fit. A well known example— well known because it was said that the A ct could not otherwise have been carried through at the time when Parliament was favourable to it~ is the National Insurance A ct of 1911, which provided that if any difBculty arose in bringing one part of the A ct into operation, the Insurance Commissioners with the consent of the Treasury might do anything that they thought necessary or expedient for that purpose, and might modify the provisions of the A ct, provided that they acted before the end of 1913. Such clauses were not uncommon, and sometimes they gave power to amend other Acts as well; but the Committee o f 1932 criticized them as constituting a temptation to slipshod work in the preparation of bills, and said that they should be used only where they were justified before Parliament on compelling grounds. But in fact, as the intricacy o f legislation grows steadily more formidable, some power to adjust or reconcile statutory provisions has to be tolerated. Although such clauses may no longer be cast in such striking terms, substantially similar devices have been even more in vogue since the Report than before it. One need look no further than the Statutory Instruments A ct, 1946, itself to find an example ; the King in Council may direct that certain provisions about laying statutory instruments before Parliament shall not apply to instruments made under pre-existing A cts if those provisions are deemed inexpedient....

Emergency Powers

The common law contains a doctrine o f last resort under which, if war or insurrection should prevent the ordinary courts from operating, the actions of the military authorities in restoring order are legally unchallengeable. W hen the courts are thus reduced to silence, martial law (truly said to be ‘no law at all’) prevails. This principle...lies outside our subject). A ll other emergency powers drive from Parliament by delegation.

The one standing provision for peace-time emergehcies is; tfcie Emergency Power Act, 1920, which is designed to protect the public from the effects o f serious strikes .... The crown may declare an emergency on account of any threat to the suptjly; ahd distribution pf food, water, fuel, or light, or to tlie ,


appears that the community, or any substantial part of it, will be deprived of ‘the essentials of life’. While the proclamation is in force the Crown may by Order in Council make regulations ‘for securing the essentials of life to the community’, and may confer on ministers or others any powers and duties deemed necessary for a wide variety of purposes connected with public safety and the life of the community.... A proclamation of emergency must at once be communicated to Parliament, which must be summoned if necessary; the regulations must be laid before Parliament as soon as possible, and will expire in seven days from the time when they are so laid, unless both Houses approve them by resolution. The proclamation itself expires in a month, but without prejudice to a further proclamation.

The powers granted in war-time are, o f course, much wider— and are too wide to describe in detail. In 1914, the Defence of the Realm A ct, in a single short section, gave power to the King in Council to make regulations ‘for securing the public safety and the defence of the realm’, including trial by court martial in wide classes o f cases. As we shall see, the courts found this formula to be subject to a number o f implied restrictions, for instance as regards taxation, expropriation, and access to the courts. By the end of the war many things of questionable legality had been done, and it was thought necessary to pass the Indemnity Act, 1920, and the W ar Charges Validity A ct, 1925. Profiting by this lesson. Parliament granted more elaborate and specific powers in the Emergency Powers (Defence) A ct, 1939. The King in Council was empowered to make defence regulations, being such regulations ‘as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution o f any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life o f the community’. A series of specific powers was then added, providing for such things as detention of persons and requisitioning of property, for amending, modifying, or suspending any statute, and for delegating any of the powers to other authorities. The Treasury was given power to make orders imposing charges in connection with any scheme of control under the regulations, subject to affirmative resolution by the House of Commons within twenty-eight days. Certain other charges could be imposed by defence regulations directly, and were then (Hke other defence regulations) subject only to negative resolution o f either House. The A ct did not authorize any form of compulsory military


service (this was the subject of other legislation) or industrial conscription, or trial of civilians by court martial (contrary to the precedent of 1914). But in 1940 the ban on industrial conscription was swept away....Under these virtually unlimited powers the government undertook the close control o f industrial employment as well as of very many other matters. So extensive were the powers that no Indemnity A ct was found necessary. M oreover...powers which for some purposes were even wider were continued in the post-war decade by a succession of A ct of Parliament which adapted the war-time governmental machine to peace-time control of economic activity and under which rationing schemes continued to be administered. Although the number of operative controls was much reduced from 1951 onwards, it took a long time to dispose of the framework o f ‘emergency’ laws.

SCETION 3 ] DELEGATED LEGISLATION 185

S. R. DAS, “INAUGURATION ADDRESS’' TO THE ADMINISTRATIVELAW SEMINAR

1 Journal of the Indian Law Institute 14-16 (1958)

In the early stages of society, the necessity for law was satisfied by a few simple rules regulating the conduct o f man so as to put a stop to the primitive rule o f the jungle. In those days there was ample elbow room for all, the chances of clash and conflict were fewer. But as society grew, population increase, men’s ideas as to their mutual relationship and their relationship with the State underwent changes. Necessity for more elaborate laws was felt progressively. Common law had to be supplemented by statute laws and a more elaborate system of courts had to be devised to administer them. Then, in modern times, men conceived the notion o f welfare state and began to look up to the State for greater attention and help. Notions o f new rights, new interests, with correlative new wrong and new liabilities, began to press for recognition. These notions brought the State into closer contact with the people until the State has now invaded almost every sphere o f the lives of the people. In order to discharge its functions as a welfare statfe, the State has necessarily- to be armed with laws and the power to enforce them. Parliament can hardly cope with the demands for such legislation and, constituted as it is, it is hardly qualified to comprehend or attend to the minutest details for which provisions have to be made. So Parliament has to content itself with laying down the

general principles and leaving it to the executive Government to administer them by framing suitable rules within the framework of the laws passed by it,...

It is an interesting study how the English and the American sytems of law have viewed this problem. It is common knowledge that in the British Constitution the King-in-Parliament is the sovereign power in the State. It was after considerable struggle against the concentration of power in the hands of the King that the supermacy o f Parliament was fully and firmly established. As Professor Dicey said, the sovereignty o f Parliament is an undoubted legal fact and it is complete both on its positive and on its negative side. It can legally legislate on any topic whatever. There is no law which Parliament may not change. There is no court or any other body which can pronounce any Parliamentary statute void or inoperative.... Parliament’s power of legislation being com plete and supreme, there is nothing to prevent it from delegating its legislative powers to the executive officers or other subordinate bodies. As I have already said, delegation of legislative power became necessary because o f Parliament’s lack of time to shape all legislation, its lack of technical knowledge and aptitude, the occurrence of conditions which requires immediate attention at a time when Parliament is not in session and a desire to preserve the essential elasticity of laws affecting people's lives so closely.... This delegation o f power came to be freely and widely exercised by Parliament, and the executive government started making rules having the force of law until they assumed an alarming proportion. Lord Hewart complained of this new despotism and Parliament had to set up a Committee on Ministers’ Powers, commonly known as the Donough- more Committee....

In the American Constitution, we find a different principle in operation, The framers of the American Constitution were imbued with the political theories propagated by John L ocke and Montesquieu.

Accordingly, they started with a complete separation of powers in Articles 1, 2, and 3 of their Federal Constitution. This doctrine of separation of powers led to the corollary that legislative power could not be exercised by any agency of the Government except the legislature. Pushed to its logical conclusion, the American doctrine would necessarily prevent any delegation of legislative power. The practical difficulties in a literal application o f the maxim were soon


felt, and by judicial pronouncements beginning with tliose of Marshall C. J. in Wayman v. Southard down to those of modern Judges in recent times, this theory against delegation o f legislative power has been considerably softened down by the inexorable necessity of modern times.

Professor Cushman’s syllogism is worth repeating '

Major Prem ise: Legislative power cannot be constitutionally delegated by Congress.

Minor Prem ise; It is essential that certain powers be delegated to administrative officers and regulatory commissions.

Conclusion ; Therefore, the powers thus delegated are not legislative powers.

The American Judges whittled down the doctrine by limiting it to “ strictly and exclusively” (per Marshall C. J.) or “ purely" (per Day J.) or “ essential” (per Hughes C. J.) legislative power, and the rest o f the content o f the legislative power has been permitted to be delegated under the pretence that it is not really legislative power “ to ascertain and declare facts” (per Harlan J.) or only “ administrative powers to make rules and regulations” (per Hughes C. J.) or “ minor matter” (per Lamar J.)

It will thus be seen that although the English and the American systems started at two opposite ends, they have now come and met half way....


SECTION 4. POWER OF LEGISLATURE TO DELEGATE

NOTES

It is agreed on all sides that,delegated legislation is indispeiisable in the modern administrative ...age. W hatever reasons,, existed for the growth of delegated legislation in. the United Kingdoiii and in the United States of America, do exist in Irtdia to a lafge,.exte,iiti; In addition, the modern concept o f a socialistic, ,p;a.fct? ^ which the Congress Governme-nt is trying to evolye in India Has led to large scale socio-econom ic planning and consequent governmental control o f private trade and business. , This gifen a great fillip

to the institution of delegated legislation.^ National planning and provision for social services have necessitated the making o f detailed regulations. As a result this vast regulatory law could not be enacted by Parliament because of either lack of time or expertise in the legislators. A lso considerations of adaptability o f or flexibility in the law demand resort to delegated legislation.

The question, therefore, is one of control, and not of desirability, of delegated legislation. The control of delegated legislation means control at two stages:— First at the source, when power of legislation is conferred by the legislature on the administration, and, second, after the delegated legislation emerges from the hands of the delegate. Here we shall take up the first stage for consideration. The second stage is discussed later.^ It may, however, be pointed out that there is a close relation between the controls at the tw o stages. The control of delegated legislation at the second stage largely depends in its efficacy on the first.

In England, due to the operation of the doctrine of Supremacy of Parliament, the courts cannot control the Parliament in the matter of delegation of legislative power. But, in the United States because of the doctrine of the separation of powers, the theory prevails that excessive delegation is bad and that the delegation of legislative power should not be “ unconfined and vagrant’', that it should not “ run riot” .

In the United States the question of delegation has involved a conflict of values. On the one hand, there is the doctrine o f the separation of powers which insists‘ on a separation between the executive and the legislative. The same idea is also expressed at times by the maxim : "Delegatus non potest delegare,'" namely, a delegate cannot further delegate. So it is argued that Congress which derives its power from the people, and is thus a delegate itself cannot further delegate its power to the Executive. On the other hand, there are the practical needs of the modern government which make delegation not only necessary but imperative. In the area of defining the permissible limits within which Congress can delegate its legislative powers, the task before the United States Supreme Court, therefore, has been that o f creating a balance

1. See, for instance, the innumerable orders promulgated by the Central and State Governments under section 3 of the Essential Commodities Act, 1955. The Indian Law Institute, Administrative Process Under the Essential Commodilies Act, 1955 (1964).

2. 7/;/mCh. V.


between the two conflicting forces: doctrine of separation barring delegation and the inevitability of delegation due to the exigencies of modern government. The evolution o f judicial attitude in this area reveals three phases :

1, Pre~New D eal: During this period, the Supreme Court upheld many delegations by understating the power delegated as the power to “ fill in details,” or “ to find facts to carry the legislatively declared policies into effect,” or as ‘"quasi-legislative” or as “ administrative powers.” Jaffee points out that comprehensive systems of regulations were thus upheld under this “ fictional rationalization.” ^

2, New Deal • During the New Deal era, the Supreme Court rejected some instances of delegation on the ground of excessive delegation. The delegations involved were broader than what had been attempted earlier. This factor along with the then Supreme Court's conservative attitude towards President Roosevelt’s New Deal programme resulted in the Court’s judgments in the Panama and the Schechter^ cases that the delegations were vltra vires. The principle was, however, laid down that legislative power could be delegated if Congress lays down the policy. This reroains the controlling principle even to-day. In the matter o f delegation the judicial attitude seems to be that Congress cannot give a blank cheque to the Executive to legislate, which in essence would amount to abdication o f its functions by the Congress, and that is unconstitutional.

3, Post - New D ea l ; In this period, the emergency created by the outbreak o f the Second W orld W ar influenced judicial thinking considerably. Furthermore the reconstituted Supreme Court o f the Roosevelt era was liberal in its outlook. As a result very broad delegations o f legislative power were judicially approved, although the principle laid down in earlier cases was reiterated. Since 1939, no delegation has been condemned as excessive. Tw o important war-time cases are Yakus v. United States^ andi^?cA/^rv. United States’’ . In the Lichter case, according to Davis, “ greatest delegation” Was sanctioned by the Supreme Court. H e also added “ judicial language

3. Jaffee. “ An Essay on Delegation of Legislative Power,” 47 Colum- Zi Rev. 359 (1964).

4. Panama Refining Co. v. Ryan, 293 U. S, 388 (1935).5. A., L. A. Schechter Poultry Corp. v. U, S ., 295 U.S. 495 (1935).6. 321 U. S. 414 (1944\7. 334 U. 8 .742 (1948).8. Davis,‘ Administrative Lay


about standard is artificial."'' Frank observes, “ ...[ilt is improbable that any act whicli Congress garnishes with even an appearance of a “ standard’' to guide the executive discretion will be invalidated.” ® Commenting on the doctrine of excessive delegation, Jaffe says : “ It must be admitted that in the field of federal administration the doctrine as it operates to-day is essentially a caveat, a hint of a reserved power.” ^


SCHWARTZ. AN INTRODUCTION TO AMERICAN ADMINISTRATIVE LAW

34. 40-2(1958)

...In order to preserve the position of the Congress as the primary legislator, delegations of power by it could not be inordinate. And this has meant that the precise limits of the law-making power which the Congress intended to confer upon an administrative agency have had to be defined in clear language by the statute which conferred it. Or, as the highest American Court itself had expressed it, the delegated power must be Hmited by a standard : “ Congress cannot delegate any part o f its legislative power except under the limitation of a prescribed standard.” The discretion conferred must not be so wide that it is impossible to discern its limits. There must instead be an ascertainable legislative intent to which the exercise of the delegated power must conform. If there is no precise standard in the enabling statute to limit delegations of power, the administrative agency is in actuality being given a blank check to make law in the delegated area of authority. In such a case, it is the agency, rather than the Congress, that is really the primary legislator.

The Committee on Ministers’ Powers, it should be noted, expressed a principle basically similar to the standard requirem ent; ‘‘The precise limits of a law-making power which Parliament intends to confer on a Minister should always be expressly defined in clear language by the statute which confers it: when discretion is conferred, its limits should be defined with equal clearness.” In effect, the British Committee here was urging a limitation upon delegation not unlike that accomplished by the requirement of a standard in_

10. Frank, Cases on the Constitution 61 (1951). n . Op, cit. supra oote, at 592,

the American system. W hat the American rule demands is that delegations o f power must be Hmited ones—limited either by legislative prescription of ends and means, or even o f details, or by limitations upon the area of the power delegated. The enabling legislation must, in other words, contain a framework within which the administrative action must operate. Otherwise, the legislature is, in effect, abdicating its function as primary legislator to the administrator.

But where does this leave the requirement of an ascertainable standard in enabling legislation? Plainly, a standard such as that contained in the Communications A ct is not mechanical or selfdefining; it implies wide areas of judgment and, therefore, o f discretion. If such a broad standard is considered adequate, then has not the requirement of a defined standard become a purely formal one and, if that is the case, has not the American law, in practice if not in theory, become similar to that in Britain, where there are no constitutional limitations to restrain Parliament from delegating authority how it will ?

The Supreme Court would answer this by asserting that the generality o f the phrasing in a statute, such as the Communications A ct of 1934, does not mean that the applicable standards are too vague to canalize administrative discretion effectively. The statutory language is not to be read in a vacuum; a general standard may be given specific form and content when looked at in the light of the statutory scheme and its background. Thus the standard of “ public interest'’ in the Communications A ct is not so vague and indefinite as to be unconstitutional: “It is a mistaken assumption that this is amere general reference to public welfare without any standard to guide determination. The purpose of the A ct, the requirements it imposes, and the content o f the provision in question, show the contrary.”

One wonders, however, whether a standard such as that contained in the Communications A ct really furnishes an effective legislative guide. As it has been put by one writer, telling the agency to do what is in the public interest is the practical equivalent o f in'^|ructing i t : “ Here is the problem. Deal with it.’ ' Certainly a lliislative discretion to act in the “public interest'’ appears to, add little to an enabling Act. W ould the Federal Communications C^wmissibn be likely to act any differently in specific cases if the Communications A c t did not specifically instruct it to be guided by “ public interest, convenience or n^gessity ?”


It cannot be denied, in the Hgbt of the above, that the attitude of the American Court toward the delegation problem has changed substantially since the Schechter case. Schechter may still stand apart because of the tremendous scope of the delegation at issue there— whatHias been well called the “ most sweeping congressional delegation o f all time.” But, if standards such as those contained in the Reorganisations and Communications A ct are upheld as adequate, it becomes apparent that the requirement of standards has become more a matter of form than substance. Provided that there is no abdication of the Congressional function, as there was in the Schechter case, the enabling law will be upheld, even though the only standard which the Court can find is so broad as to be almost illusory.


DAVIS, 1 ADMINISTRATIVE LAW TREATISE76. 81-6, 88-101 (1958)

THE NON-DELEGATION DOCTRINE

As recently as 1932 the Supreme Court declared: “ That the legislative power of Congress cannot be delegated is, of course, c lea r/’ This statement was but a reiteration of the leading case of Field v. Clark : “ That Congress cannot delegate legislative power to thePresident is a principle universally recognised as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Yet the Supreme Court has specifically upheld scores of delegations of legislative power, and no congressional delegation to a regularly constituted administrative agency has ever been held invalid.

CONGRESSIONAL DELEGATIONS UPHELD-STANDARDS

But the standards the Supreme Court has held adequate include ‘just and reasonable,” “ public interest,” unreasonable obstruction”

to navigation, “ reciprocally unequal and unreasonable,’ ’ “ public convenience, interest, or necessity,” “ tea of inferior quality,” ‘"unfair methods of competition,” “ reasonable variations,” “unduly orunneces- sarily complicate the structure” of a holding company system or unfairly or inequitably distribute voting power among security

holders."

Because of history or context, vague phrases of this sort may sometimes have considerable meaning. But sometimes they do not have. Sometimes telling the agency to do is in the public

interest is the practical equivalent of instructing i t ; “Here is the problem. Deal with it.” Detailed analysis of a few opinions will readily show the unreality of the talk about standards.

In NBC V. United States, the validity of the F C C ’s chain broadcasting regulations was challenged. The A ct conferred uRon the Commission power to license broadcasting stations. The criterion was “ public interest, convenience, or necessity.” Quoting earlier cases, the Court declared that the standard was “ ‘as concrete as the complicated factors for judgment in such a field of delegated authority permit.’ ...This criterion is to be interpreted by its context, by the nature of radio transmission and reception, by the scope, character and quality of services... " Yet the NBC case involved something clearly beyond what was contemplated at the time of the enactment in 1934~a comprehensive set of regulations governing contractual relations between networks and broadcasting stations. W hether the A ct gave the Commission power to regulate economics of networks at all was a question on which the Court divided. But one cannot find in the A c t o r in its legislative history guidance whatsoever concerning the questions o£ monopolistic practices which the regulations were designed to reach. True, Congress in the antitrust laws had enunciated policies, but the FCC expressly disavowed intention to apply the antitrust laws. The Court declared that “ the ‘public interest’ to be served under the Communications A ct is...the interest of the listening public in ‘the larger and more effective use of radio’ ” and “ to secure the maximum benefits of radio to all the people o f the United States-*’ But the Court did not pretend that either the A ct or its legislative history told the Commission whether it should promote a policy of enforced competition, or how far such a policy should be carried, or how much, if any, weight should be given to business interests that might be opposed to the interest of the listening public. The Commission partially answered these basic questions in its regulations, and the regulations were upheld.

In Yakus v. United States, the delegations of the Emergency Price Control A ct o f 1942 were upheld. The A ct declared its purpose to be “ to stabilize prices... to eliminate,, profiteering to assure that defense appropriations are not .dissipated by excessive , prices; to protect persons with relatively fixed and limited incomfes... to prevent a post emergency collapse o f va lues../’ The Ad^niiiistfatd^ was given power to fix: prices which “in his juctgment will be generally fair and equitable ^ 4 will effectuate the purposes thj§ Act/' The


Administrator was required “so far as practicable" to “give due consideration” to prices prevailing on designated dates, and by a later A ct the direction was given to stabilize “so far as practicable" on the basis o f levels of a later date. The A ct provided no direct answer to the question whether prices should be allowed to go up five per cent, twenty per cent, or a hundred per cent; nor did it answer such fundamental questions as whether prices could be fixed below costs, whether profits on particular products could be eliminated, or whether profits of whole industries could be eliminated or drastically reduced. Lack of legislative answers to such basic questions was proved by administrative experience in working out such administratively-created standards...Despite the necessity for the administrative formulation of such basic standards, the Court easily sustained the delegation, saying merely that “ Congress has stated the legislative obiecti.ve-maximum price fixing-and has laid down standards to guide the administrative determination of both the occasions for the exercise of the price-fixing power, and the particular prices to be established.”


THE PANAMA AND SCHECHTER CASES

These two cases are the only ones invalidating congressional delegations to governmental authorities. The Panama case, except in its own unique setting, is of questionable authority today. Section 9(c) 'o f the National Industrial Recovery A ct delegated to the President the power to prohibit shipment of “ hot oil” (oil produced in contravention o f state laws) in interstate commerce. The Court found no standard in section 9(c) and found the general statements of policy in Title I of the A ct to be inadequate. Those statements included the phrases, “ to eliminate unfair competitive practices,” and “to conserve natural resources.” The power delegated was very narrow: as stated at the argument, the President was authorized to determine only the “ whether” and the ‘ when’\ not the “what,” To reconcile the Panama decision with earlier or later decisions seems impossible. The Panama case seems most easily explainable in terms of two somewhat extraneous factors— that other parts o f the A ct provided for “delegation running riot” , and that, as was dramatically shown at the argument, the content of code provisions for violation of which producers were criminally liable was not readily ascertainable.

The Schechter case involved the most sweeping congressional delegation o f all time. True, the standards, in the sense of the statutory phrases expressing policy, were the same as those in the Panama case the statements in Title I of the National Industrial Recovery A ct. But the delegation was not merely of a small power to determine whether and when a prescribed provision should become effective; the delegation included power to approve detailed codes to govern all business subject to federal authority. N ot the vagueness of the standards but the scope of the delegation distinguishes the Schechter case from all others. The C ourt’? opinion is devoted mainly to discussion of standards, but the Court did declare; “ In view of the scope of that broad declaration, and o f the nature of the few restrictions that are imposed, the discretion o f the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered.” The standards— “ to eliminate unfair competitive practices, to promote the fullest possible utilization o f the present productive capacity o f industries,... and otherwise to rehabilitate industry..." were probably more definite than many standards contained in the Interstate Commerce A ct— “in the public interest," “ just and reasonable.” But the Interstate Commerce A ct is itself a comprehensive code of laws regulating transportation, and the vague standards guide the exercise of relatively small powers— that must always be kept subordinate to the detailed fram ewort o f the A ct. Even the vast war power o f price control is dwarfed by the power delegated by the National Industrial Recovery A ct, which included the fixing of prices for all of trade and industry and the formulation and approval of comprehensive codes to govern all business practices-

Beware of the Supreme C ourt’s misleading language. That the literal opinions in the Panama and Schechter cases do not embody the effective law is entirely clear. This is dramatically shown when a lower court takes those opinions seriously. For instance, the opinions were follow ed to the letter by a three-judge district court, which held a delegation invalid because : “ W e are unable to find in the A ct a declaration o f policy or standard o f action w^iich can be deemed to relate to the su b ject.. Because the lower court took literally what the Supreme Court has said in the Panama and Schechter opinions, the Supreme Court reversed it.


NOTES

A fter Independence, the courts in India had tw o models before them on the question of delegation o f legislative power. There was, on the one hand, the English example where ParHament enjoys unlimited power of delegation. On the other hand, there was the practice prevalent in the United States where delegation is subject to the policy being laid down by the legislature. The Constitution of India did not provide any clear guidance on the point. On the basis that India, like England, has a parliamentary form of government in which a close relationship exists between the Executive and the Legislature, and the Executive’s responsibility to the Legislature is assessed daily, the Indian Courts could well have followed the English rule. The Indian Courts adopted the latter model in preference to the former. The courts have in a number o f cases laid down the principle that the legislature cannot delegate uncontrolled and unguided power; that it should lay down the policy subject to which delegation can take place. In the very first case known as the Delhi Law Act case after the new Constitution, the Supreme Court rejected the extreme contention of the Government that an unlimited right of delegation is inherent in the legislative power itself. The Court considered three theories against delegation, vfe., delegatus non potest delegare, separation of powers, and abdication by the legislature.

"'The first two theories, it was held, were not of much consequence in India. The judges emphasized repeatedly that in India the doctrine of separation did not operate in the area of legislative-executive relationship. The doctrine of the ParHament being a delegate o f the people was also rejected as being “not a sound political theory” . The third was, nevertheless, held to be pertinent. A Legislature functioning under a written constitution, it was decided, must itself discharge the essential legislative function which means that it should lay down the poUcy and enact that as a binding rule of conduct.

Thus we see that delegation of legislative power without laying down the policy is not permissible. It may be instructive to examine the cases to study the operation of the principle in practice and to assess its present vitality.

There is another doctrine which prevails in India con^tional legislation. In this case, the law is full and complete when It leaves the legislative chamber, but its operation is made to depend upon the fulfilment of some 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 fulfilled.^“ In this situation, the law is there, its taking effect is made to depend upon the determination of certain facts and conditions by an outside authority. This doctrine now has only a historical justification. Before Independence, the Privy Council never liked to commit itself to the position that it was permissible for the Colonial Indian Legislature (non-sovereign according to D icey) to delegate legislative power. The legislatures were creatures o f the British Parliament. The Privy Council, while reiterating that they had plenary powers to legislate on the subjects falling within their scope, never overtly endorsed the suggestion that they could delegate their powers. In all cases, the provision in question was upheld as conferring power of subsidiary or conditional legislation- The expressions ‘‘subsidiary” or “ conditional” legislation were used to denote that not the powers of legislation but only some minor powers were conferred to carry the enactment into operation and effect. In other words, the legislature having discharged the essential legislative function, specifies the basic conclusion o f fact upon ascertainment o f which, the legislative provisions are made to operate by the executive or any other administrative agency. It appears that the Privy Council evolved the formula of conditional legislation as a compromise between the needs o f the situation (demanding delegation), and the colonial character of the legislature (as they operated within the bounds o f the Parliamentary statutes). The cases which came before the Privy Council could have all been disposed ofon the ground of “ delegation" but, instead, it relied on the narrower doctrine of “ conditional legislation." The supreme example of this approach is to be found in the Federal Court case, Jatindra Nath Gupta v. Province o f Bihar^ decided immediately before the advent of the new constitution. In this case, the power to extend the operation o f an A ct was held to be delegation of legislative power and not conditional legislation and therefore was held improper and void.

The Courts after Independence have travelled much beyond the position taken by the court in the Jatindra Nath case. . The term “ conditional legislation’* is rather vague and ambiguour possible that what is held in one case as “ delegated legislation may be held in another as “ conditional legislation,” ^ It is a question for considera-

12. Mukherjea, X, In re Delhi Laws Act, (1951) S. C. J. 527.13. A. I. R. 1949 F. C. 175.14. For example, comffite Jatindra Nath Giiptav.PrQvfnde o f Bihar, A, I. R.

1949 F. C. 175; and Inder S ir^ y . State 1 57 512,

SECTION 4 ] DELEGATED LEGISLATION J97

tion whethei the doctrine of conditional legislation may not now be discarded as it is only a modest variant of delegated legislation and is no longer necessary when the doctrine of delegation itself has come into operation in India.

As the term “ conditional” legislation is used from time to time even in the post-Constitution era, some cases having a bearing on the doctrine are included herein by way of explaination and illustration.


A : DOCTRINE OF CONDITIONAL LEGISLATION

THE EMPRESS v. BURAH I.L.R.4Cal. 172 (1879)

[In 1869, the Indian Legislature passed an A ct purporting to remove the district of Garo Hills from the jurisdiction o f the Civil and Criminal courts, and the law applied therein, and to vest the administration of civil and criminal justice within the same district in such officers as the Lieutenant-Governor of Bengal might appoint for the purpose. By Section 2, this A ct was to come into operation on such day as the Lieutenant-Governor of Bengal should, by a notification, direct. By Section 9, the Lieutenant-Governor was empowered from time to time, by notification in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the provisions contained in the A ct to the Jaintia, Naga and Khasia Hills. The Lieutenant-Governor of Bengal, by a notification, fixed the time at which it should come into operation in the Garo Hills; and afterwards, by another notification, he extended all provisions of the A ct to the district o f the Khasia and Jaintia Hills, Under the A ct and these notifications Burah was tried on a charge of murder by the Deputy Commissioner of the Khasia and Jaintia Hills, and was sentenced to death. On appeal, the High Court of Calcutta, by a majority, decided in favour of Burah. Thereupon the Government appealed to the Privy Council.]

Lord Selborne;

The ground of the decision to that effect of the majority of the Judges of the High Court was that the 9th section was not legislation, but was delegation o f legislative power. In the leading judgment of Mr. Justice Markby, the principles of doctrine of agency are relied on; and the Indian Legislature seems to be regarded as, in effect, an agent or delegate, acting under a mandate from the Imperial Parliament, which must in all cases be executed directly by itself.

Their Lordships cannot but observe that if the principle thus suggested were correct, and justified the conclusion drawn h'om it, they would be unable to follow the distinction made by the majority of the Judges between the power conferred upon the Lieutenant- Governor of Bengal by the 2nd and that conferred on him by the 9th section. If, by the 9th section, it is left to the Lieutenant-Governor to determine whether the A ct, or any part o f it, shall be applied to a certain district, by the 2nd section it is left to him to determine at what time the A ct shall take effect as law anywhere. Legislation which does not directly fix the period for its own commencement, but leaves that to be done by an external authority, may, with quite as much reason, be called incomplete, as that which does not itself immediately determine the whole area to which it is to be applied, but leaves this to be done by the same external authority. If it is an act of legislation on the part of the external authority so trusted to enlarge the area within which a law actually in operation is to be applied, it would seem, o fortiori^ to be an act of legislation to bring the law originally into operation by fixing the time for its commencement.

But their Lordships are o f opinion that doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the A ct o f the Imperial Parliament which created it, and it can, of couse, do nothing beyond the limits. W ith these 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. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine the question; and the only way in which, they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done 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 pov/er is limited, it is not for any Court of Justice to inquire further, or t o ' enlarge constructively those conditions and restrictions,,

Their Lordships agree that the Governor-General-in.-:-Council could not, by any forrn of enactment, create in India, arm with general legislative authority, new legislative ' power, not created or


authorized by the Coancil’s A ct. Nothing of that kind has in their Lordships’ opinion been done or attempted in the present case. W hat has been done is this. The Governor-General-in~Coimcil has determined, in the due ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by, and responsible to, the Lieutenant-Governor of Bengal; leaving it to the Lieutenant-Governor to say at what time that change shall take place; and also enabling him not to make what laws he pleases for that or any other district, but to apply by pubHc notification to that district any law, or part of a law, which cither already was, or from time to time might be, in force, by proper legislative authority, “ in the other territories subject to his government.” The Legislature determined that so far a certain change should take place; but that it was expedient to have the time, and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor; and also that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant- Governor. This having been done as to the Garo Hills, what was done as to the Khasia and Jaintia Hills ? The legislature decided that it was fit and proper that the adjoining district of the Khasia and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, not neccessarily and at all events, but if and when the Lieutenant-Governor should think it desirable to do so; and that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district. And accordingly the Legislature entrusted, for these purposes also, a discretionary power to the Lieutenant-Governor,

Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant-Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor-General in Council. Their whole operation is, directly and immediately, under and by virtue of this A ct... itself. The proper Legislature has exercised its judgment as to place, person, law;s, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been

200 INDIAN ADMINISTRATIVE LAW [CHAPTER 4

fulfilled, the legislation is now absolute. W here plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships’ judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use o f particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of a conditional legislation as within the scope o£ the legislative powers which it from time to time conferred. It certainly used no words to exclude it..,. [Appeal A llow ed]


NOTES

The doctrine of conditional legislation enunciated in the Burah case has been subsequently applied by the courts in a number of cases:

(1) Emperor v. Benoari L alp the Governor-GeneraU n-Council promulgated an ordinance^® providing for the setting up of special criminal courts. The ordinance contained the necessary framework for special courts, but instead actually setting them itself, provided that it would come into force in any province when the Provincial Government, by notification in the official gazette, ‘declares it to be in force in the Province.’

It was contended that the Ordinance was invalid bccause the last provision amounted to delegated legislation, by which the Governor-General, without legal authority, sought to pass the decision as to whether an emergency existed to the Provincial Government instead of deciding it for himself. Rejecting the argument, Lord Chancellor, Viscount Simon held;

...But the Governor-General has not delegated his legislative powers at all.... Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor- General's Ordinance taking the form that the actual s&ttmg up of a Special Court under the terms of the Ordinance should take place at the time and within the limits judged to be necessary by

15. A. I. R. 1945 P. C. 48.16, Under para 72 of schedule 9 of the Government of India Act, 1935, read

with section 102 thereof.

the Provincial Government specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local appHcation o f the provision of a statute is determined by the judgement of a local administrative body as to its necessity

A reference was made to a Canadian Case Charles Russell v. The Queeiu^ The Canadian Temperance Act, 1878, was to be brought into force in any country or city, if upon a vote of a majority of the electors of the country or city favouring such course, the Governor- General by order in Council declared the relative part of the A ct to be in force. The Privy Council held that this provision did not amount to a delegation of legislative powers to the voters in a city or country. Their Lordships said;

..,[T ]he A ct does not delegate any legislative power whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the A ct shall come into operation only on the petition of a majority of electors does not confer on these persons powers to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation o f this kind is in many cases convenient, and is certainly not unusual, and the power to so legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency....^®

(2) Section 97 of the City of Bangalore Municipal Corporation Act, 1949, enumerates the taxes and duties which the Corporation is empowered to levy under the Act. In the schedule certain articles were mentioned specifically on which an octroi could be levied and a •Residuary head in the schedule gave power to levy octroi on other articles and goods. Thus the Corporation could choose the articles upon which tax could be imposed. It was challenged on the ground that the power of the Corporation was excessive delegation which was both uncanalised and uncontrolled. Rejecting the argument, the Supreme Court held that the power was more in the nature of conditional legislation. “A ll that the legislature has done in the present case is that it has specified certain articles on which octroi duty can be imposed and it has also given to the Municipal

17. Supra note 15, at 51.18. [1882] 7 A. C. 829.19. U. at 835.


Corporation the discretion to determine on what other goods and. under conditions the tax should be levied.’’ ’*®

(3) In State o f Bombay v. NarottamcJas,- the Bombay Legislature enacted the Bombay City Civil Court A ct, 1948, to establish a Civil Court for greater Bombay having jurisdiction to decide civil suits not exceeding ten thousand rupees in value. The State Government was, however, authorised to extend its jurisdiction up to twenty five thousand rupees. This provision was challenged as being an unauthorised delegation of legislative powers.

The Supreme Court rejected the argument and upheld the provision as conditional legislation. According to Mahajan, J:

...W ithout applying its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than Rs. 10,000, how could the Legislature possibly enact in S. 4 that the pecuniary jurisdiction of the new court would not exceed Rs 25,000. The fixation of the maximum limit of the Court’s pecuniary jurisdiction is the result of exercise of legislative will, as without arriving at this judgment it would not have been able to determine the outside limit o f the pecuniary jurisdiction o f the new court. The policy of the Legislature in regard to the pecuniary jurisdiction of the Court that was being set up was settled.,.and it was to the effect that initially its pecuniary jurisdiction will be limited to Rs. 10,000 and that in future if circumstances make it desirable— and this was left to the determination of the Provincial Government—it could be given jurisdiction to hear cases up to the value of Rs. 25,000.... A ll that was left to the discretion of the Provincial Government was the determination of the circumstances under which the new Court would be clothed with enhanced pecuniary jurisdiction, The vital matters o f policy having been determined, the actual execution of that policy was left to the Provincial Government and to such conditional legislation no exception could be taken. Th^^section does not empower the Provincial Government to enact a, law as regards the pecuniary jurisdiction o f the new Court a^d it can,, in no sense, be held to be le^slation conferring legislatSi e! power on the Provincial Government.^®

20. Bangalore W. C. & S. Mills v. Bangalore Corpn A. I. R. 1962 S. C. 1263, 1266.

21. A. I. R. 1951 S. C. 69.22. Id. at 80.


(4 ) Section 1(3) of Bihar Maintenance of Public Order A ct, 1947, laid down that the A ct would remain in force for one year provided that “ the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this A ct shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification....” This provision conferred on the executive a two-fold power, viz., that of extending the life o f the A ct and that o f modifying it. The validity o f the provision came to be considered by the Federal Court in Jatindra Nath Gupta v. Province o f Bihar - and by majority it was held to be bad. It was contended that the power to extend the life o f an A ct, beyond the prescribed period, was clearly legislative power which could not be delegated to the two Houses of the Legislature so as to extend the life of the A ct by their resolution only. It was further argued that the power o f modification, which was subject to no limit as to the extent of the modifications which could be made in the A ct, was necessarily legislative power, and not conditional legislation as the Legislature had not passed the A ct itself and made its operation, either as to its commencement or the area, dependent on the order of an extraneous authority. The majority accepted the contention. In the words o f Kania, C. J. ;

...The proviso contains the power to extend the A ct for a period of one year, with modifications, if any. It is one power and not two severable powers. The fact that no modifications were made in the A ct when the power was exercised cannot help in determining the true nature o f the power* The power to extend the operation of the A ct beyond the period mentioned in the A ct prima facie is a legislative power. It is for the Legislature to state how long a particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify A ct of a Legislature, without any limitation on the extent of the power of modification, is undoubtedly a legislative power. It is not a power confined subject to any restriction, limitation or proviso (which is the same as an exception) only.... Even keeping apart the power to modify the A ct, I am unable to construe the proviso worded as it is, as conditional legislation by the Provincial Government. Section 1(3) and the proviso read together cannot be properly interpreted to mean that the Government of Bihar in the performance of its legislative functions had prescribed the life of the A ct beyond one year.23. A. I. R. 1949 F. C. ITs! ~ —

204 INDIAN a d m in is t r a t iv e LAW [ CHAPTER 4

For its continued existence beyond the period of one year it had not exercised its volitiO'h or judgment but left the same to another authority, which was not the legislative authority of the Province. The proviso is framed in the affirmative form, stating that it shall be extended for a period of one year by the Provincial Government on a resolution passed by the two Chambers. I also think that on a true construction o f the proviso this power of legislation to extend the life of the A ct beyond the first year is not left in the legislative body established by the Government of India A ct for the Province, but in a different body..,. Applying the principles laid down by the Judicial Committee o f the Privy Council in The Queen v. Burah,,,Qx\A Russel v. The Queen.., I do not think the extension of A ct beyond the first year by the Notifications can escape being classed as delegated legislation. It is not and cannot be disputed that delegated legislation will be ultra vires.-^

The minority, however, disagreed with the proposition that leaving the power of extension to an outside authority amounted to legislation or exercise of legislative power. In the words'of Fazl A liJ .;

From the A ct, it is clear that, though it was in the first instance to remain in force for a period o f one year, the Legislature did contemplate that it might have to be extended for a further period...of one year. Having decided that it might have to be extended, it left the matter o f the extension to the discretion o f the Provincial Government. It seems to me that the Legislature having exercised its judgement as to the period for which the A ct was or might have to remain in force, there was nothing wrong in its legislating conditionally and leaving it to the discretion of the executive authority whether the A ct should be extended for a further period o f one year or not. It would be taking a somewhat narrower view of the decision in Burak’s case, ..to hold that all that the legislature can do when legislating cond:f^pnalIy is to leave merely the time and the manner o f ca^#ing its legislation into effect to the discretion of the executive authority and that cannot leave any ,'qi:her matter to its discretion. The extension o f the A ct for af'fyrther period of <^e year does riot amount to its re-enactment It merely amount|^G a continuance o f the A ct for the maximum period ted by theLegislature when enacting||>e:it:fod.

------------- ---------------— -----------------------------------------------------------------------------------------^ ^ — I

24. U at 178.


The matter, however, is not so ^ ^ p le when we deal with the power of modifying the A ct wMif'h also is conferred by the proviso on the Provincial Government, because if the matter is viewed a httle strictly, it may appear at the first sight that by empowering the Provincial Government to modify the Act, the Legislature has delegated to some extent the legislative power to an external authority.......[T lh e power to extend the A ct and the power to modify it are two separate powers, and assuming that the A ct may not be valid in so far as it confers the latter power, it can be held to be valid in so far as it confers the former power....The mere fact that the power to extend is coupled verbally with the power to modify the A ct will not make the entire proviso invalid....In my opinion, the two powers mentioned in the proviso are separable and are not so inter-twined that the proviso must stand or fall as a whole. In the present case the Provincial Government merely extended the A ct and did not modify it.®In one respect, however, the view of the majority in the Jatindm

Nath case has been overruled by the Supreme Court in In d a r Singh v. The State o f Rajasthan.-' Section 3(1) of the ordinance passed by the Rajpramukh stated the Ordinance would remain in force for a period of two years unless this period was further extended by the notification in the Rajasthan Gazette. It was argued that it was essentially a matter for legislative determination as to how long a statute should operate, and that the power conferred by 3(1) on the executive to extend the poriod o f two years fixed therein is an unconstitutional delegation of legislative power. The Court held that the Jatindm Nath case could not “ be regarded as a clear and direct pronouncement that a statutory provision authorizing an outside authority to extend the life of a statute is per se bad.” ’ Referring to the decision in In re The Delhi Law Act, 1912}^ the Court found that a proposition upheld by majority in that case “ is that when an appropriate Legislature enacts a law and authorises an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and not delegated legislation, and that such legislation is v a l i d . S e c t i o n 3 of the Ordinance m so far as it authorised the

25. Id. at 193-94.26. A. I. R. 1957 S. C. 510.27. Id. at 515.28. 1951 S. C. R. 747; A. I. R. 1951 S. C332.29. Supra note 26, at 515.


Rajpramukh to extend the lif^' of the A ct fell within the category of conditional legislation, and in consequence intra vires.

A comparison of the two cases, viz,, Jatindra Nath Gupta and Inder Singh shows that before the advent of the Indian Constitution, the Federal Court took a narrow view of the pow er o f the Indian Legislature to delegate. It sought to confine it to a situation of conditional legislation, interpreting conditional legislation rather restrictively, and would not permit anything in the nature o f delegation o f legislative power— something more than conditional legislation. The Supreme Court has now taken a broader view.®” It has not only interpreted conditional legislation broadly but also permitted delegated legislation as will be clear from the following cases.


B: DELEGATION OF LEGISLATIVE POWER(a) General

In Re ARTICLE 143, CONSTITUTION OF INDIA A.I.R. 1951 S.C. 332

[ Part C states (now known as Union Territories) are small territories direct under the control of Central Government. Responsibility to make laws for these territories lies on Parliament, but as this could not possibly be done in practice it became necessary to delegate legislative powers to the Executive. Section 2 of the Part C States (Law s) A ct, 1950, runs as follows :—

“ The Central Government may, by notification in the Ofhcial 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 Part A State at the date o f the notification and provision may he made in any enactment so extended for the repeal or amendment o f any corresponding law (othe|||han a Central A c t ) which is for the time being applicable to tlai:Cfc Parte s t a t e . ’ ’The President of India, ® d e r A rticle 143, referred to the;

Supreme Court for opinion, in t^ ^ ia , the question '^jhether the abov'e' section or any ‘of its provisic^-s'-^ind in what particulars or to what extent, was ultra vires the Pa^am ent.]

-------------------------- -------------- ^ -----------------------------------— ------------------- --------------------------------------------

30. See, Inder Singh v. The Stat&of Rajasthan, A. I R 1957 S C. 510- Bangalore W. C. & S. Mills V . Bangalore rpn ., A,I R 1962 S.C. 1263

31, The case is general died as In re Delhi Laws Act, 1912 (Ed,). ; .

Kania, C.J.:

The contentions urged on behalf or the President of India are that legislative power carries with it a power of delegation to any person the legislature may choose to appoint. W hether sovereign or subordinate, the legislative authority can so delegate its function if the delegation can stand three tests. (1) It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation. (2) Such power o f delegation is not negatived by the instrument by which the legislative body is created or established. And (3) it does not create another legislative body having the same powers and to discharge the same functions which itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself....

Before considering these arguments indetaiU I think it is essential to appreciate clearly what is conveyed by the word ‘delegation'... when a legislative body passes an A ct it has exercised its legislative function. The essentials of such fuction 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.... 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. W hile 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 o f conduct, I find that the word ‘delegation’ is quite often used without bearing this fundamental distinction in mind. W hile the so-called delegation, which empowers the making of rules and regulations, has been recognized as ancillary to the power to define legislative policy and formulate rule of conduct, the important question raised by the Attorny-General is in respect of the right o f the legislature to delegate functions strictly so called....

(A fter a discussion o f case-la||?, on the subject His Lordship continued.)

...W hile the Judicial Committee l^ s pointed out that the Indian Legislature had plenary powers to lelislate on the subjects falling

32. The Queens. Burah, 51 1, A. 178; Em perAv. Benoarilal Sharma, 7 2 1. A. 57 (Ed.), *


within its powers and that those powers were o f the same nature and as supreme as the British Parliament, they do not endorse the contention that the Indian Legislature, except that it could not create another body with the same powers as it has, or in other words, efface itself, had unlimited powers of delegation. W hen the argument of the power of the Indian Legislature to delegate legislative powers in that manner to subordinate bodies was directly urged before the Privy Council, in each one of their decisions the Judicial Committee has repudiated the suggestion and held that what was done was not delegation but was subsidiary legislation or conditional legislation. Thus while the Board has reiterated its views that the powers of the Indian Legislature were “ as plenary and of the same nature as the British Parliament” no one, in no case, and in no circumstances, during the last seventy years, has stated that the Indian Legislature has power of delegation (as contended in this case) and which would have been a direct, plain, obivious and conclusive answer to the argument. Instead of that, they have examined the impugned legislation in each case and pronounced on its validity on the ground that it was conditional or subsidiary legislation....

[Position in Canada, Australia and the United States wasconsidered.]A fair and close reading and analysis o f all these decisions of the

privy council, the judgments o f the Supreme Courts o f Canada and Australia without stretching and straining the words and expressions used therein lead me to the conclusion that while a legislature, as a part of its legislative functions, can confer powers to make rules and regulations for carrying the enactment into operation and effect, and 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 o f the A ct can be extended to certain areas or may be brought into force on such determination which is declared as conditional legislation, the power to delegate legislative functions generally is not warranted un(%r the Constitution o f India at any stage,.,. In my opinion, therefore, the contention urged by the learned Attorney-General that legislative power carries with it a general,, power to delegate legislative fumtlons, so that the %gislaturei:: may not define its policy at all and m fy lay down no rule o| con.duGt: fcut that whole thing may be left either to the exe< :t:iy€: autb,03a®iS! Of administrative or other body, isjttnsound and not snpported By authorities on which he reli|§..., f;


It was contended by the learned Attorney-G eneral that under the power of delegation the legislative body cannot abdicate or efface itself. That was its limit. It was argued that so long as the legislature had power to control the actions of the body to which power was delegated, that so long as the actions of such body were capable of being revoked there was no abdication or e£facement,...The true test in respect of ‘abdication’ or ‘efFacement’ appears to be whether in conferring the power to the delegate, the legislature, ‘in the words used to confer the power', retained its control. Does the decision of the delegate derive sanction from the act of the delegate or has it got the sanction from what the legislature has enacted and decided ? Every power given to a delegate can be normally called back. There can hardly be a case where this cannot be done because the legislative body which confers power on the delegate has always the power to revoke that authority and it appears difficult to visualize a situation in which such power can be irrevocably lost... .In my opinion, therefore, the question whether there is ‘abdication’ and ‘effacement’ or not has to be decided on the meaning of the words used in the instrument by which the power is conferred on the authority.... Abdication by a legislative body need not necessarily amount to a com plete effacement of it. Abdication may be partial or complete. W hen in respect of a subject in the Legislative List the Legislature says that it shall not legislate on that subject but would leave it to somebody else to legislate on it, why does it not amount to abdication or effacement ? If full powers to do anything and everything which the legislature can do are conferred on the subordinate authority, although the legislature has power to control the action o f the subordinate authority, by recalling such power or repealing the Acts passed by the subordinate authority, the power conferred by the instrument in my opinion, amounts to an abdication or effacement of ; the legislature conferring such power.

The power to ‘ modify’ an A ct in its extension by the order of the subordinate authority has also come in for considerable discussion. Originally when power was conferi^d on the subordinate authority to apply existing legislation to specified areas it was given only to apply the whole or a portion thereof. That power was, further expanded by giving a power to restrict its application also. In the next stage power was given to modify “ so as to adapt the same” to local conditions. It is obvious that till this stage the clear intention was that the delegate on whom power was conferred was only left with the discretion to apply what was coifsidejred suitable, as a whole


or in part, and to make adaptation which became necessary because of local conditions and nothing more. O nly in recent years in some Acts power of modification is given without any words of limitation on that power. The learned Attorney-G eneral contended that the word ‘m odify’ according to the Oxford Dictionary means “ to limit, restrain, to assuage, to make less severe, rigorous, or decisive, to tone down” . It is also given the meaning “ to make partial changes in; to alter without radical transformation” . He therefore contended that if the donee of the power exceeded the limits o f the power of modification beyond that sense, that would be exceeding the limits of the power and to that extent the exercise o f the pow er may be declared invalid. He claimed no larger power under the term ‘modification’. On the other hand, in Rowland Burrow’s “ W ords and Phrases”, the word, ‘m odify’ has been defined as meaning “vary, extend or enlarge, limit or restrict’ *. It has been held that modification implies an alteration. It may narrow or enlarge the provisions of the former A ct. It has been pointed out that under the powers conferred by the Delhi Laws A ct, the Central Government has extended the application of the Bombay D ebtors’ R elief A ct to Delhi. The Bombay A ct limits its application to poor agriculturists whose agricultural income is less than Rs. 500. Under the power of modification; conferred on it by the Delhi Laws A ct, the Central Government has removed the limit on the income, with the result that the principles, policy and machinery to give relief to poor peasants or agriculturists with an income o f less than Rs. 500, is made applicable in Delhi to big land-owners even with an income of 20 lakhs!! This shows how the word ‘modifications’ is understood and applied by the Central Governm ent and acquiesced in by the Indian Legislature. I do not think such power of modification and actually exercised by the Central Governmeiit is permitted in law. If power of modification so understood is permitted, it will be open to the Central Legislature in effect to change the whole basis of the legislation and the reason for making the law. That ■will be a complete delegation o f legislative power, because in the event o f the exercise of the pow er in that manner the Indian legislature has not applied its mind either to the policy under which relief should be ^iven nor the class o f persons, nor th # circumstances nor the machinery by which relief is to be given..,, I adhere to wKat I stated in Jatindra Nath Gputa’s case... that the power o f delegation, in the sense of the legislature conferring power, o n : eithei: the executive government or another authority, “ to lay dow n'the policy underlying a rul^ of conduct” is not petmitted...*


Under the new Constitution of 1950, the British Parliament, i.e. an outside authority, has no more control over the Indian Legislature. That Legislature’s powers are defined and controlled and the limitations thereon prescribed only by the Constitution of India, But the scope of its legislative power has not become enlarged by the provisions found in the Constitution of India. W hile the Constitution creates the Parliament and although it does not in terms expressly vest the legislative powers in the ParHament exclusively, the whole scheme of the Constitution is based on the concept that the legislative functions o f the Union will be discharged by the Parliament and by no other body. The essential of legislative functions, viz. the determination of the legislative policy and its formulation as rule of conduct, are still in the Parliament or the State Legislatures as the case may be and nowhere else. I take that view because of the provisions of Article 357 and Article 22(4) of the Constitution of India . ,

...A rticle 357 ( l) (a ) thus expressly gives power to the Parliament to authorise the President 'to delegate his legislative powers.' If powers of legislation include the power of delegation to any authority there was no occasion to make this additional provision in the Article at all. The wording of this clause therefore supports the contention that normally a power of legislation does not include the power of delegation.

Having regard to the position of the British Parliament, the question whether it can validly delegate its legislative functions cannot be raised in a Court of law. Therefore from the fact that the British Parliament has delegated legislative powers it does not follow that the power of delegation is recognised in law as necessarily included in the power of legislation. Although in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. Is it then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making laws is primarily cast on the legislatures ? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies, executive or judicial, are not intended to discharge legislative functions?...

...Proceeding on the footing that a power of legislation does not carry with it the power o f delegation (as claimed by the Attorney- General), the question is whether section 2 o f Part C States (Laws)


A ct is valid or not. By that section the Parliament has given power to the Central Government by notification to extend to any part of such State (Part C State) with such restrictions as it thinks fit, any enactment which is in force in Part A State at the date of the notification. T o the extent ‘the Central Legislature’ or Parliament has passed A cts which are applicable to Part A States, there can be no objection to the Central Government extending, if necessary, the operation of those A cts to the Province of Delhi, because the Parliament is the com petent legislature o f that Province. To the extent, however, the section permits the Central Government to extend laws made by any legislature of Part A State to the Province of Delhi, the section is ‘ultra vires’.

Fazal All, J.

One of the principles on which reliance was placed to show that legislative power cannot be delegated is said to be embodied in the well-known maxim, ‘delegatis non protest delegare’, which in simple language means that a delegated authority cannot be redelegated, or, in other words, one agent cannot lawfully appoint another to perform the duties o f agency. This maxim however has a limited application even in the domain of the law o f contract or agency wherein it is frequently invoked and is limited to those cases where the contract o f agency is of a confidential character and where authority is coupled with discretion or confidence.... In applying the maxim to the act o f a legislative body, w e have necessarily to ask "who is the principal and who is the delegate” .

It has also been suggested by some writers that the legislature is a delegate o f the people or the electors. This view again has not been accepted by some constitutional writers, and D icey dealing with the powers o f the British Parliament with reference to the Septennial A c t states as follows: “ That A ct proves to demonstration that in a legal point of view Parliament is neither the agent of the electors nor in any sense a trustee for its constituents. It is legally the sovereign legislative power in the state and the Septennial A ct is at once the result and the standing proof o f such Parliamentary sovereignty.®^

There can be no doubt that members of a legislature represent the majority o f their electors but the legislature as a body cannot be said to be an agency of the electorate as a whole. The individual members may and often do represent different parties and different

33. Dicey, Laws o f the Constitution 45-46 (8th 1915) (Ed.).


shades of opinion, but the composite legislature which legislates, does so on its own authority or power which it derives from the Constitution, and its acts cannot be questioned by the electorate, nor can the latter withdraw its power to legislate on any particular matter....

The second principle on which reliance was placed was said to be founded on the well-known doctrine of “ separation of powers,”

....So far as the Federal Constitution o f the United States was concerned, though it does not expressly create a separation of governmental powers, yet from the three Articles stating that the legislative power vests in Congress, the judicial power in the Supreme Court and the executive power in the President, the rule has been deduced that the power vested in each branch of Government cannot be vested in any other branch, nor can one branch interfere with the power possessed by any other branch..

From the rule so stated, the next step was to deduce the rule against delegation of legislative power which has so often been stressed in the earlier American decisions. It was however soon realized that the absolute rule against delegation of legislative power could not be sustained in practice....In course of time, notwithstanding the maxim against delegation, the extent of delegation had becom e so great that an American wrote in 1916 that “because o f the rise of the administrative process, the old doctrine prohibiting the delegation of legislative power has virtually retired from the field and given up the f i g h t . T h i s is in one sense an overstatement, because the American Judges have never ceased to be vigilant to check any undue or excessive authority being delegated to the executive as will appear from the comparatively recent decisions of the American Supreme Court in ‘Panama Refining Co. v- Ryan’^®..., and ‘Schechter Poultry Corp: v. United States'.^^

...The fact however remains that the American Courts have upheld the so-called delegated legislation in numerous instances, and there is now a wide gulf between the theoretical doctrine and its application in practice.... [N]otwithstanding the prevalence o f the doctrine of separation of powers in America, the rule against delegation of legislative power is by no means an inelastic one in that

34. Refer to Springer v. Government o f the PhilUpine Islands, 111 U. S, 981, 201 (Ed.).

35. 41 American Bar Ass. Rep. 356, 368 (Ed.).36. 293 U. S. 388 (l934)CEd,).37. 295 U.S. 495 (1934) (Ed.).


country, and many eminent Judges there have tried to give a practical trend to it so as to bring it in line with the needs o f the present-day administration, and secondly, because they show that the rule against delegation is not a necessary corollary from the doctrine of separation of powers.

It is to be noted that though the principle o f separation of powers is also the basis of the Austrahan Constitution, the objection that the delegation o f legislative power was not permissible because of the distribution o f powers contained in the Constitution has been raised in Commonwealth only in a few cases and in all those cases it has been negatived....

In England, the doctrine of separation of powers has exercised very little influence on the course of judicial decisions or in shaping the Constitution....

...It seems to me that though the rule against delegation of legislative power has been assumed in Am erica to be a corollary from the doctrine o f separation o f powers, it is strictly speaking not a necessary or inevitable corollary. The extent to which the rule has been relaxed in America and the elaborate explanations which have been ojSered to justify departure from the rule, confirm the view, and it is also supported by the fact that the trend of decisions of Australia, notwithstanding the fact that the constitution is at least theoretically based on the principle of separation of powers, is that the principle does not stand in the way o f delegation in suitable circumstances. The division of the powers of Government is now a normal feature o f all civilised constitutions, and as pointed out by Rich J,in ‘N ew South W ales v. Commonwealth’ 20 C.L.R. 54 at p. 108, it is “ well-known in all British Communities” ; yet, except in United States, nowhere it has been held that by itself it forbids delegation of legislative power. It seems to me that the Anaerican jurists have gone too far in holding that the rule against delegation was a direct corollary from the separation o f powers,

I will now deal with the third priniciple which, in my opinion, is thus the principle upon which the rule against delegation may be founded. It has been stated in Cooley's Constitutional Limitation^j; volume I, at p. 224 in these words :

“ One o f the settled maxims in constitutioiial law is, that the power conferred upon the legislature |p make laws cannot be delegated by that department to any othet bod;:j Oi: atith.otity. W here the sovereign power o f the State has located the authority, there it


must remain; and by the constitutional agency alone the laws must be made until constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have been fit to confide this sovereign trust” ,...

This rule in a broad sense involves the principle underlying the maxim ‘delegetus non protest delegare’ but it is apt to be misunderstood. In my judgment, all that it means is that the legislature cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted. This rule has been recognised both in America and England, and Hughes C.J. has enunciated it in these words:

“ The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested.” "®...W hat constitutes abdication and what class of cases will be covered by that expression will always be a question of fact, and it is by no means easy to lay down any comprehensive formula to define it, but it should be recognized that the rule against abdication does not prohibit the Legislature from employing any subordinate agency of its own choice for doing such subsidiary acts as may be necessary to make its legislation effective, useful and complete.

[His Lordship referred to argument put forward by the learned Attorney-General that the power of delegation is implicit in the power of legislation,] This argument is based on the principle of sovereignty of the legislature within its appointed field....

The learned Attorney-General has relied on the authority of Evatt, J., for the proposition that “ the true nature and scope of the legislative power of the Parliament involves as part of its content power to confer law-making power upon authorities other than Parliament itself.” See the Victorian Stevedoring Case; (1931) 46 C.L.R. 73. It is undoubtedly true that a legislature which is sovereign within its own sphere must necessarily have very great freedom of action, but it seems to me that in strict point of law the dictum of Evatt, J. is not a precise or an accurate statement. The first question which it raises

38. Rajnarain Singh v. Chairman, Patna Administration Committee, A I.R, 1954S, C. 573.


is what is meant by law-making pow er and whether such power in the true sense,o f the term can be delegated at a ll Another difficulty which it raises is that once it is held as a general proposition that delegation of law-making power is implicit in the pow er of legislation it will be difficult to draw the line at the precise point where the legislature should stop and it will be permissible to ask whether the legislature is competent to delegate 1, 10 or 99 per cent of its legislative power, and whether the strictly logical conclusion will not be that the legislature can delegate the full content o f its power in certain cases. It seems to me that correct and the strictly legal way of putting the matter is as the Privy Council have it in several cases. 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 multipHcity o f varying situations which may be sometimes difficult to foresee. In order to achieve its ob ject 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, an expression which has been very fully explained and described in a series o f judgments, and what is known as subordinate legislation, which involves giving power to subordinate authorities to effectuate the object and purpose for which a certain law is enacted, have been recognized to be permissible forms o f legislation on the principle that a legislature can do everything which is ancillary to or necessary for effective legislation. Once this is conceded, 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 the duties it is called upon to perform.

'y ' The conclusions at which I have arrived so far may now be summed up ;

(1) The legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follov^ as a corollary that it is free to legislate within that sphere in any w a jt; which appears to it to be the best way to give effect to its intentiori and policy in making a particular law, that it may utilise any outside agency to any exten t it finds necessary for doing things which it i s , unable to do itself or finds it inconvenient to d o ., In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation (3) It cannot abdicate its


legislative functions, and therefore, while entrusting ,t>ower to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature. (4 ) 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 amounts to “abdication and self-effacement.”

[Referring to the section validity o f which was being considered.] There can be no doubt that the powers which have been granted to Government are very extensive,...but, in my judgment, notwithstanding the somewhat unusual features...the provisions in question cannot be held to be invalid.

...The situation with which the respective legislatures were faced when these A cts were passed was that there were certain State or States with no local legislatures and whole bundle of laws had to be enacted for them. It is clear that the legislatures concerned, before passing the Acts, applied their mind and decided firstly, that the situation would be met by the adoption o f laws applicable to the other Province inasmuch as they covered a wide range of subjects apprdached from a variety of points of view and hence the requirements of the State or States for which the laws had to be framed could not go beyond those for which laws had already been framed by the various legislatures, and secondly, that the matter should be entrusted to an authority which was expected to be familiar and could easily make itself familiar with the needs and conditions of the State or States for which the laws were to be made. Thus, everyone of the A cts so enacted was a complete law, because it embodied a policy, defined a standard, and directed the authority chosen to act within certain prescribed limits and not to go beyond them. Each A ct was a complete expression of the will o f the legislatures to act in a particular way and of its command as to how its will should be carried out. The legislature decided that in the circumstances of the case that was the best way to legislate on the subject and it so legislatedt It will be a misnomer to describe such legislation as amounting to abdication of powers, because from the very nature of the legislation it is manifest that the legislature had


the power at any moment of withdrawing or altering any power with which the authority chosen was entrusted, and could change or repeal the laws which the authority was required to make applicable to the State or States concerned. W hat is even more important is that in each case the agency selected was not empowered to enact laws, but it could only adapt and extend laws enacted by responsible and com petent legislatures. Thus, the powder given to the Government in those A cts was more in the nature o f ministerial than in the nature of legislative power. The power given was ministerial, because all that the Government had to do was to study the laws and make selections out of them....

It is to be borne in mind that the discretion given to modify a statute is by no means absolute or irrevocable in strict legal sense, with which aspect alone we are principally concerned in dealing with purely legal question. As was pointed out by Garth, C, J. in ‘Empress v. Burah’ 3 Cal. 63 at p. 140, the legislature is

“ always in a position to see how the powers, which it has conferred, are being exercised, and if they are exercised injudiciously, o i otherwise than in accordance with its intentions, or if having been exercised, the result is in any degree inconvenient, it can always by another A ct recall its powers or rectify the inconvenience” . -

I will now deal with section 2 of the part C States (Laws) A ct, 1950, in so far as it gives power to the Central Government to make a provision in the enactment extended under the A ct for the repeal or amendment o f any corresponding law which is for the time being applicable to the Part C State concerned. N o doubt this power is a far-reaching and unusual one, but, on a careful analysis, it will be found to be only a concomitant o f the power of transplantation and modification. If a new law is to be made applicable, it may have to replace sorrie existing law which may have becom e out-of-date or ceased to serve any useful purpose, and the agency which is to apply the new law must be in a position to say that the old law would cea^e': to apply...

[The separate opinions o f Patanjali Sastri, Mahajan, MukJaerjesii' Das and Bose, JJ. have teen omitted.]


NOTES

In In re: Delhi Laws Act case, the Justices of the Supreme Court rendered seven lengthy opinions. They seem to have arrived at a consensus o f opinion on the following p o in ts ; It is practically essential that Parliament should have power to delegate legislative p o w e r ; that there is no doctrine of separation o f powers in India ; that the Indian Parliament, working under a written constitution, cannot claim the same freedom as the British Parliament in the matter of delegation. But no clear guidance emerged on the question o f permissible limits within which Indian Parliament could delegate. Fazl Ali, Sastri and Das, JJ., put the limit at “ effacement or abdication.” Das, J. explained the concept of effacement thus ; Parliament should never give up its control over the subordinate authority to whom it delegates its law-making pow ers; it must not without preserving its own powers intact, create arm with its own capacity a new legislative power not created or authorised by the constitution; it must not destroy its own legislative power. The majority, on the other hand, took a more restrictive view and held that if the legislature hands over its “ essential legislative pow er" to an outside authority that would amount to abdication and be bad.Essential legislative function has been explained to mean thedetermination or choosing of the legislative policy and of formallyenacting that policy into a binding rule o f conduct” .

Subsequently in the Rajnarain case, the Supreme court itself sought to rationalize the Delhi laws Act case. Bose, J., on behalf of an unanimous Court stated:

“ The Court had befort it [ In re: Delhi Laws Act case J the following problems. In each case, the Central Legislature had empowered 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. Thevariations were as follows :

(1) W here the executive authority was permitted, at its discretion, to apply without modification (save incidental changes such as name and place), the whole o f any Central A ct already in existence in any part df India under the legislative sway of the Central to the new area ;


This was upheld by majority of six to one.(2) W here the executive authority was allowed to select and apply a Provincial A ct, in similar circumstances :This was also upheld, but this time by a majority o f five to two.(3) W here the executive authority permitted to select future Central laws and apply them in a similar w a y ;This way upheld by five to two.(4) W here the authorization was to select future Provincial Laws and apply them as above:

This was also upheld by five to two.(5) W here the authorization 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 m ojority of four to three.(6) W here the authorisation was to apply existing laws, either Central or Provincial, with alterations and m odifications; and

(7) W here the authorization was to apply future laws under the same conditions.In the cases given below, one could see the operation of the doctrine o f ‘excessive delegation’ as it has been dealt with by the Superme Court in concrete situations.


HARISHANKAR BAGLA v. THE STATE OF MADHYA PRADESHA.l.R. 1954 S.C. 465

[The C otton Textiles (Control o f M ovem ent) order, 1948 introduced a permit system for movement o f cloth. The order was promulgated under section 3 o f the Essential Supplies (Temporary Powers) A ct, 1946.

Bagla was arrested for carrying cloth without permit. He came before the Supreme Court to contest the validity o f the Cotton Ordljf on the ground, inter alia that Sections 3 and 6 of the A ct were invalid on the ground of excessive delegation o f legislative power.

Sections 3 and 6 of the Essiifi^il Supplies (Temporary Powers) A ct, 1946, provide as follows

3(1) The Central Government, so far as it appeals t0 ; it to be necessary or expedient for maintaining or increasing supplies of

any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.... (2) W ithout prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide—

(a) for regulating by licences, permits or otherwise the production or manufacture of any essential com m odity;...

(b ) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity.

(6) A ny order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this A ct or any instrument having effect by virtue o f any enactment other than this Act.The High Court of Nagpur in Hiralal v. The State, h a d declared

section 6 of the Essential Supplies (Temporary Powers) A ct, 1946 void on the ground that it “ confers a power of the widest amplitude to make an order which may be inconsistent with the pre-existing law” and so was ‘nothing short of a power to repeal.’ The Court referring to the Dehli Laws Act case pointed out that the legislature cannot create a new legislature for the purpose o f legislating generally; abdication does not consist merely in creating a parallel or independent legislature. W hen a legislature confers a power on some other authority to repeal an existing law it will be deemed to have abdicated its legislative function.

The High Court of Allahabad also expressed a similar view with respect to section 6 in Bhushan Lai v. State.^ These views were overruled by the Supreme Court in the Bagla Case.]

Mahajan, C. J.

[The contention] that section 3 o f the Essential Supplies (Tem porary Powers) A ct, 1946, amounts to delegation of legislative power outside the permissible Hmits is again without any merit. It was settled by the majority judgment in [the Delhi Laws Act case] that essential powers o f legislation cannot be delegated. In other words, the Legislature cannot delegate itsiitnction of laying down legislative policy in respect of a measure anc^its formulation as a rule of conduct.

39. A. I. R. 1953 Nag. 58.40. A. I. R. 1952 All. 866.41. Hari Shanker Bagla v. M. P. State, A, I. K. 1959 S. C. 965,


The legislature must declare the policy o f the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule o f conduct.

In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at their fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3. Delegation of the kind mentioned in section 3 was upheld before the Constitution in a nnmber of decisions o f their Lordships o f the Privy Council, vide— Russell v. Reg (1882) 7 A .C . 829; Hodge y. Reg. (1884) 9 A .C . 117, ‘Shannon v. Lower Mainland Dairy Products Board,' 1938 A .C . 708 and since the coming into force of the constitution delegation o f this character has been upheld in a number o f decisions of this Court on principles enunciated by the majority in [the Delhi Law Act Case]. A s already pointed out, the preamble and the body o f sections sufficiently formulate the legislative policy and the ambit and character o f the A ct is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy..,.....Section 6 o f the A ct cited above declares that an order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this A ct or any instrument having effect by virtue o f any enactment other than this A ct. In other words it declares that if there is any repugnancy in an order made under Section 3 with the provisions of any other enactment, then notwithstanding that inconsistency the provisions o f the Order will prevail in preference to the provisions of other laws which are thus inconsistent with the provisions of the Order, In the view of the High Court the power to do something which may have the effect o f repealing, by implication, an existing law could not, be delegated in view o f the majority decisions o f this Coui;fr [the Delhi Laws Act case], where i%^as held that to repeal or abrptaite an existing law is the exercis^^^Lan essential^:legislative power. The learned judges o f the High fto lr t thought" that the conferm ent o f power of the widest amplitude to make an ofder inconsistent A v ith

the pre-existing laws is nothing short o f a power to repeah


In our opinion the construction placed on Section 6 by the High Court is not right. Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them, Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of Section 6 certainly is not to repeal anyone of those laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of Essential Supplies (Temporary Powers) A ct, 1946, or the orders made thereunder. In other words, the orders made under Section 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By-passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under Section 3 it does not operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of anyone of its provisions.

Conceding, however, for the sake of argument that to the extent o f a repugnancy between an order made under Section 3 and the provisions o f an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any A ct of the delegate, but the repeal is by the legislative A ct of the Parliament itself. By enacting section 6 Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this A ct, This is not a declaration made by the delegate but the legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in Section 6 and is not by force of the order made by the delegate under Section 3. The power o f the delegate is only to make an order under Section 3, Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein tl|e Parliament has declared that as soon as such an order come|- into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this A ct. Parliament being supreme, it certainly could make a law abrogating or repealing by implication provision


of any pre-existing law and no exception could be taken on the ground of excessive delegation to the A ct of the Parliament itself. There is no delegation involved in the provisions of Section 6 at all and that section could not be held to be unconstitutional on that ground.

Appeal dismissed.


BHATNAGARS & CO. LTD. v. THE UNION OF INDIAA. I. R. 1957 S.C. 478.

[The petitioner obtained a licence under the Imports and Exports (C ontrol) A ct, 1947, for the import of soda ash and in pursuance of that licence few consignments o f the goods were received at Bombay. On receiving information that the petitioner, in fact, was trafficking in these licences, investigation was made by the Special Police Establishment and the complaint was confirmed. Consequently, the consignments were seized by the Collector o f Customs. The petitioner challenged the Customs Order first before the Central Board o f Revenue and then the Central Government, but no relief was granted. The main grievance o f the petitioner was in regard to the illegal seizure of the goods and against the virtual invalidation o f his licences for import.

The petitioner contended, inter alia, that section 3 (1) (a) of the Imports and Exports (C ontrol) Act, 1947, was ultra vires as it amounted to delegated legislation.

Section 3 (1 ) (a) provides :(1) The Central Government may, by order published in the

official Gazette, make provision for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order,—

(a) the import, export, carriage coastwise or shipment as ships’ stores of goods o f any specified description.]

Gajendragadkar, J.:

...The challenge to the validity of the legislative enactments on the ground of delegated legislatioiii often enough presents problems which are not easy of solution.f The recent history o f judicial dedsjons, however, shows that, though th©|e is ./qonsiderable divergence o f opinion in the approach to the quesfidn of 4e3ling with such a challenge, some principles may be ' t p be fairly well settled.

There is no doubt that legislation which is conditional, properly so called, must be distinguished from legislation which is delegated. Shri Umrigar [counsel for the petitioners] concedes that where the Legislature provides and lays down principles underlying the provisions of a particular statute and also affords guidance for the implementation or enforcement of the said principles, it is open to the Legislature to leave the actual implementation or enforcem ent to its chosen delegate. The time when the provision should be implemented, the period during which it should be implemented or the place where it should be applied can, according to him, in appropriate cases be validly left by the Legislature to its delegate. He, however, contends that, in the impugned A ct, the Legislature does not lay down principle and gives no guidance to the delegate while leaving the implementation of the statutory provisions to him and consequently the validity of the legislative enactment suffers from a serious infirmity on the ground that the Legislature has surrendered its legislative power in favour of its delegate. In dealing with this narrow ground of challenge, it would be necessary to consider the preamble and the material provisions o f the A ct to find out whether questions o f policy have been clearly decided by the Legislature and whether" guidance has been given to the delegate in the matter of implementing the provisions of the statute. Unfortunately for Shri Umrigar his challenge to the validity o f the impugned section under the Imports and Exports A ct is completely covered by the decision of this Court in Hanshankar Bagla v. The State o f Madhya Pradesh, A L R. 1954 S.C. 465.. .

...In other words, in considering the question as to whether guidance was afforded to the delegate in bringing into operation the material provisions of the A ct by laying down principles in that behalf, the Court considered the statement of the principles contained in the preamble to the A ct as well as in the material provisions of S.3 itself. This decision^^ shows that if we can find a reasonably clear statement of policy underlying the provisions of the A ct either in the provisions of the A ct or in the preamble, then any part of the A ct cannot be attacked on the ground of delegated legislation by suggesting that questions of policy have been left to the delegate. Turning to the impugned sections of the present A ct, it is necessary to remember that^^the present A ct purports to continue for a limited period powers to prohibit or control imports and exports which had already been enacted by the Defence of India A ct and the

41. IJqri Shanker Ba la v. Th? Stqte o f Madhya Pradesh A,I,R. 1954 S.C, 465,


Rules framed thereunder. In other words, this A ct does not purport to enact the material provisions for the first time but it purports to continue the previously existing provisions in that behalf and so it would be legitimate to consider the preamble of the predecessor A ct and relevant provisions in it to find out whether the Legislature has laid down clearly the policy underlying that A ct and has enunciated principles for the guidance of those to whom authority to implement the A ct has been delegated. The preamble to the present A ct says that it was expedient to continue for a limited period powers to prohibit, restrict or otherwise control imports and exports. The preamble to the D efence o f India A ct refers to the emergency which had arisen when the A ct was passed and refers, inter alia, to the necessity to take special measures to ensure the public safety and public interest. Section 2 of the said A ct further provides that the Central Government thought that it was essential to secure public safety and maintenance o f public order and, what is more relevant and material, the maintenance o f supplies and services essential to the life of the community. Thus it is clear that the broad and main principle underlying the present A ct, like its predecessor, was to maintain supplies essential to the life of the community. Thus, if the preamble and the relevant section of the earlier A ct are read in the light of the preamble of the present A ct, it would be difficult to distinguish this A ct from the Essential Supplies A ct with which this Court was concerned in Harishankar Bagla’s case....

SECTION 4 ] d e l e g a t e d LEGISLATION 227

D. S. GAREWAL v. STATE OF PUNJAB A. I. R. 1959 S. C. 512

[The constitutionality of the All-India Services A ct, 1951, was challenged, inter alia, on the following grounds ;

(1) Article 312 laid a mandate on Parliament to make a law regulating the recruitment and conditions o f service o f All-India services created under that Article and Parliament could not delegate this function to the Central Government, and, therefore, section 3 of the A ct was invalid ;

(2) In any event, the delegation made by section 3 of the A ct was excessive and, therefore, section 3 should be struck down.

■Section 3 lays down that the Central Government may, after consultation with the Governments o f the States concerned, make rules for the regulation pf recruitmept a p .4 ;^ service of

persons appointed to an all-India service. It also lays down that all rules made under this section shall be laid for not less than fourteen days before Parliament as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so laid ]

Wanchoo^...It is contended that Art. 312 lays down a mandate on Parliament

to make the law its;elf regulating the recruitment and the conditions o f service of All-India services, and therefore, it was not open to Parhament to delegate any part of the work relating to such regulation to the Central Government by framing rules for the purpose. N ow, it is well-settled that it is competent for the legislature to delegate to other authorities the power to frame rules to carry out the purposes of the law made by it. It was so held by the majority of Judges in re Delhi Laws Act, 1912, A.I.R. 1951 S.C. 332...The Delhi Laws CQse was further examined 'in Rojnarain Singh v- Chairman, Patna Administration Committee, Patna A.I.R. 1954 S.C. 569... and the delegation was held to go to the extent of authorising an executive authority to modify the law made but not in any essential feature. It was also observed that what constitutes essential feature cannot be enunciated in general terms. It is, therefore, clear that delegation of legislative functions can be made to executive authorities within certain limits ... Mr. Chatterjee [counsel for the appellant] contends that no delegation whatsoever was possible under Art. 312 and that the Constitution required that Parliament should itself frame the entire law relating to the regulation of recruitment and the conditions of service of all-India services. W e have, therefore, to see whether there is anything in the words o f Art. 312 which takes away the usual power of delegation, which ordinarily resides in the legislature. Stress in this connection has been laid on the words, “Parliament may by law provide appearing in Art. 312. It is urged that these words should be read to mean that there is no scope for delegation in a law made under Art. 312. Our attention in this connection was drawn to words used in Art. 245, which are “ Parliament may make laws." It is said that the words used in Art. 312 are in a special form, which import that Parliament must provide by law for regulation of recruitment and the conditions of service and cannot delegate any part of it to other authorities,... Let us, therefore, examine Art- 312 from this angle, and sec if the intention of the Constitution was that regulation of recruitment and conditions pf s^rvic? to an all-India


service should only be by law and there should be no delegation o f an3 power to frame rules. Regulation of recruitment and conditions of service requires numerous and varied rules, which may have to be changed from time to time as the exigencies of pubhc service require. This could not be unkown to the Constitution makers and it is not possible to hold that the intention of the Constitution was that these numerous and varied rules should be framed by Parliament itself and that any amendment of these rules which may be required to meet the difficulties o f day-to-day administration should be made by Parliament only with all the attending delay which passing o f legislation entails. W e are, therefore, o f opinion that in the circumstances o f Art. 312 it could not have been the intention of the Constitution that the numerous and varied provisions that have to be made in order to regulate the recruitment and the conditions of service of all-India services should all be enacted as statute law and nothing should be delegated to the executive authorities. In the circumstances we are of opinion that the words used in Art. 312 in the context in which they have been used do not exclude the delegation of power to frame rules for regulation of recruitment and the conditions of service o f all-India services. W e cannot read Art. 312 as laying down a mandate prohibiting Parliament from delegating authority to the Central Government to frame rules for the recruitment and the conditions of service of all-India services. W e, therefore, reject this contention.

The argument in this connection is that even if delegation is possible, there was excessive delegation in this case, and, therefore, the A ct should be struck down. The A ct is a short A ct of four sections. The first section deals with the short title, the second section defines the expression “ all-India Service,” and the third section gives power to the Central Government to frame rules for regulation of recruitment and the conditions o f service after consultation with the Governments of the States concerned, and lays down that all rules so framed shall be laid before Parliament and shall be subject to such modifications as Parliament may make. Section 4 which is important is in these terms—

“ A ll rules in force immediately before the commencement of this A ct and applicable to an All-India service shall continue to be in force and shall be deemed to be rules made under this A ct.”

It is urged that this A ct lays down no legislative policy or standard at all and everything is left to the Central Government... It is said


that in this case Parliament did not even exercise the essential legislative function inasmuch as it did not determine or choose the legislative poHcy and formally enact that policy into a binding rule of conduct. Apparently, if one looks at the A ct, there seems to be some force in this contention. But a close reading o f S. 4 o f the A ct and its scope, purpose and effect will show that this is not a case where the legislature has failed to lay down the legislative policy and formally enact that policy into a binding rule of conduct. W hat does S. 4 in fact provide ? Undoubtedly there were rules in force immediately before the commencement of the A ct which governed the two all-Indian services covered by it and the legislature adopted those rules and said in S, 4 that they shall continue to be in force* Thus though S. 4 appears on the face of it as one short section of four lines, it is in effect a statutory provision adopting all the rules which were in force at the commencement of the A ct, governing the recruitment and the conditions of service of the tw o all-India services. The section certainly lays down that the rules already in force shall be taken to be rules under the A ct; but that was necessary in order CO enable the Central Government under S. 3 to add to, alter, vary and amend those rules. There is no doubt, however, that S. 4 did lay down that the existing rules will govern the two all-India services in the matter of regulation o f recruitment and conditions o f service, and in so far as it did so it determined the legislative policy and set up a standard for the Central Government to follow and formally enacted it into a binding rule o f conduct. Further by S. 3 the Central Government was given the power to frame rules in future which may have the effect of adding to, altering, varying or amending the rules accepted under under S. 4 as binding. Seeing that the rules would govern the all-India services common to the Central Government and the State Government, provision was made by S. 3 that rules should be framed only after consulting the State Government. A t the same time Parliament took care to see that these ruks were laid on the table of Parliament for fourteen days before they were to come into force and they were subject to modification, whether by way of repeal or amendment on a motion made by Parliament during the session in which they are so laid. This makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and control over its delegate. Therefore, reading S. 4 alongwith S. 3(2) o f the A ct it cannot be said in the special circumstances of this case that there was excessive delegation to the Central Government by S. 3 (1). W e are, therefore, o f opinion that the A ct cannot be struck down on the ground of excessive delegation.

230 IHDIAH ADMINISTRATIVE LAW [ CHAPTER 4

VASANLAL MAGANBHAI v. STATE OF BOMBAY A. I. R. 1961 B.C. 4

[Section 6 (1) of the Bombay Tenancy and Agricultural Lands Act, 1948, fixed the maximum rent payable by a tenant for the lease of any land. Section 6(2), however, authorised the Provincial Government, by notification in the Official Gazette, to fix a rate lower than the maximum rent prescribed as payable by the tenants of lands situated in any particular area or to fix such rate on any other suitable basis ‘as it thinks fit.’

Section 6(2) was challenged on the ground of excessive delegation. It was argued that the power delegated to the Government was unfettered and uncanalised without any guidance being afforded to it for its exercise, and for fixing the lower rate, the Legislature had not prescribed any minimum].

Gajendragadkar, J.;

The preamble shows that the object of the A ct inter-alia was to improve the econom ic and social condition o f peasants and ensure the full and efficient use of land for agriculture. W ith that object the A ct has made several provisions to safeguard the interests of the tenants.., [Referring to the various sections of the A ct, he pointed out].

,..[T]hat the material provisions of the A c t aim at giving relief to the tenants by fixing the maximum rent payable by them and by providing for a speedy machinery to consider their complaints about the unreasonableness o f the rent claimed from them by their respective landlords. It is in the light o f this policy of the A ct which is writ large on the face of these provisions that we have to consider the question as to whether the delegation made by S. 6(2) sufJers from the infirmity o f excessive delegation.

Broadly stated S. 6(2) seeks to provide for the fixation of a lower rate o f maximum rent areawise. W e have already seen that individual tenants are given the right to apply for the fixation o f reasonable rent by S. 12, and specific factors have been specified which the Mamlatdar must consider in fixing a reasonable rent. • The Legislature realised that a large number of tenants in the State were poor, ignorant and in many cases helpless, and; it was thought that many of them may not be able to make ittdividual applications for the fixation o f a reasonable rent undeli S. 12. That is why it was

s e c t io n 4 ] l^ELEGATEB LEGISLATION 231

thought necessary to confer upon the Provincial Government the pov^er to fix a lower rate of the maximum rent payable by tenants in respect of particular areas. In a sense what could be done by the Mamlatdar in individual cases can be achieved by the Provincial Government in respect of a large number of cases covered in a particular area. If that be so, the legislative policy having been clearly expressed in the relevant provisions and the factors for determining reasonable rent also having been specified in S. 12(3), it is difficult to accept the argument that the Provincial Government has been given uncanalised or unfettered powers by S. 6(2) to do what it likes without any guidance.... The relevant conditions of agriculture would not be uniform in different areas and the problem of fixing a reduced maximum rent payable in the respective areas would have to be tackled in the light of the special features and conditions of that area; that is why a certain amount of latitude had to be left to the Government in fixing the lower rate of the maximum rent in the respective areas, and that is intended to be achieved by giving it liberty to adopt a basis which it thinks is suitable for the area in question. The word “ suitable” in the context must mean ‘suitable to the area’ having regard to the other provisions o f the A ct

such as S. 6(1) and S. 12. It is true that the power to fix a reasonable rent conferred on the Mamlatdar under S. 12 is subject to the power of the Provincial Government under S. 6(2). Even so we think it would be difficult to hold that the factors prescribed for the guidance of the Mamlatdar would have no relevance at all when the Provincial Government acts under S, 6(2). In our opinion, therefore, having regard to the legislative policy laid down by the A ct in its preamble and in the other relevant sections to which we have referred, and having regard to the guidance which has been provided for fixing a reasonable rent under S. 12(3), it would not be possible to hold that the power delegated to the Provincial Government by S. 6 (2) suffers from the infirmity of excessive delegation. The fact that no minimum has been prescribed would not materially affect this position.

StMa Rao, J. (dissenting)Prima facie in S. 6 (2) the legislature has not laid down any poHcy or any standard to enable the Provincial Government to reduce the maximum rent fixed under S. 6 (1). W hat is the limit of the lower rate the Government is empowered to fix ? W hat is the extent of the area with reference to which that rate can be fixed ? W hat are the conditions prevailing in a particular area which require the


reduction of the maximum rent ? Even if there are conditions justifiable for reduction o f the maximum rent, what is the basis for that reduction ?,... The situation o f a land in a particular area cannot in itself afford a basis for fixing a specified rate o f maximum rent. The words “ suitable basis” in the alternative caluse are so vague that in effect and substance they confer absolute and arbitrary discretion on the Provincial Government. W hat is the standard of suitability ? The standard of suitability is only what the Government thinks suitable. In this section the legislature in clearest terms abdicated its essential functions in favour of the executive authority without laying down any standard for its guidance. In effect, it permitted the Government to amend S. 6(1) of the A ct. T o illustrate, the legislature fixes the maximum rent payable by a tenant to his landlord at X ; the Mamlatdar after enquiry fixes Y as reasonable rent which is less than X ; the Government in exercise of the power conferred under S. 6(2) can arbitrarily fix Z which is far less than the reasonable rent; with the result that the entire scheme promulgated by the legislature breaks. The Government also may select any small area containing a few landlords and reduce the maximum rent to the lowest level with the result that the A ct can be worked out as an expropriatory measure which is contrary to the intention of the legislature. Learned Counsel for the respondents, realising that arbitrariness is writ large on the face of S. 6(2) attempted to evolve the legislative formula from the preamble to S. 6(1) and S. 12(3) o f the A ct. I cannot find any indication of the legislative policy in the manner of fixation o f the lower rate of maximum rent in the preamble. N or can I discover any such in S. 6(1). Section 6(1) contains a clear legislative policy in fixing the maximum rent on certain identifiable basis. The legislature says in effect in S. 6(2), “ I have fixed the maximum rent in respect of irrigated lands and other lands on the basis of a definite share of the crops o f such lands, but you can reduce that maximum rent on any basis you like.” W hile S. 6(1) overrides other provisions of the A ct, S. 6(2) derogates from S. 6(1) itself. Section 6(2) is capable of being exercised in such a way that the ob ject of S. 6(1) is itself frustrated. Section 6(1) in effect is made subject to S. 6(2).

[Refusing to accept the contention that the factors mentioned in S. 12(3) could be read in S. 6(2) he stated :]

...The A ct does not say so, either expressly or by necessary implication. The criteria for fixing rent in S. 12(3) are to afford a guide to Mamlatdar for fixing reasonable rent. Indeed the sub-clause is


subject to S. 6 indicating thereby that the maximum rent fixed by the Government is not the same as the reasonable rent. Indeed if the reasonable rent determined on the basis of all or some o f the factors in S. 12 (3) is more than the maximum rent fixed by the Government on a suitable basis, the latter prevails over the former. A s the maximum rent supersedes reasonable rent, the factors governing reasonable rent need not necessarily govern the fixation of maximum rent. The attempt to read the factors in S. 12(3) into S. 6(2) is, in my view, not permissible.,...

The learned Additional Solicitor-General broadly contended that the policy of the legislature is to prevent rackrenting and to fix a reasonable rent and, therefore, any exercise of the power under S. 6(2) is guided by that policy. This is an exrteme contention and, if accepted, will enable Parliament and legislatures to confer absolute and unguided power on the executive. If a legislature can legally be permitted to lay down a broad policy in general terms and confer arbitrary powers on the executive for carrying it out,there will be an end of the doctrine o f the rule o f law. If the contention be correct, the legislature in the present case could have stated in the preamble that they were making the law for fixing the maximum rent and could have conferred an absolute power on the Government to fix suitable rents having regard to the circumstances of each case. Such a law cannot obviously be valid. W hen the decision says that the legislature shall lay down the legislative policy and its formulation as a rule of conduct, they do not mean vague and general declaration o f policy, but a definite policy controlling and regulating the powers conferred on the executive for carrying into effect that policy.

Appeal dismissed


NOTES

1. The effect of a notification under section 15 of the Forward Contracts (Regulation) A ct, 1952, with reference to particular commodities is to make forward controls for the sale or purchase of those commodities illegal and void. A ll such transactions were deemed to be closed out on the date of the notification and the differences arising out of the contracts were to be paid not at the rate originally fixed by the contracting parties but at the rates fixed by the Central Government under section 16 of the A ct.

Under section 16 the forward contract was to be closed out “ at such rate as the Central Government may fix in this behalf, and different rates may be fixed for different classes o f such contracts.” This was challenged on the ground, that It entrusted the Government v^ith arbitrary power to fix any price it liked as it did not specify the basis therefor, nor did the statute give any indication of the principles underlying the fixation of the price, with the result that sectoin 16 was either a piece o f excessive delegation or offended Article 14 by conferring an unguided power on Government. The Court rejected the argument.

The Court examined the scheme o f the A ct, the policy underlying it and the purposes for which it is enacted “ to see if there could be found a guidance as to the principles on which the price of selling out could be fixed by the Government.” Referring to section 3(2) of the Essential Commodities A ct, 1955, under which the Central Government is empow^ered, by making an order, to provide for controlling the price at which any essential commodity may be bought and sold, the Court observed: “ The control under the enactment,as the one now under consideration, is to be exercised for ensuring that the price fixed shall be reasonable having regard to the cost of production and the general level o f prices prevailing of other like commodities which are the subject of legitimate and proper trade. In the very nature of things it is not possible for the legislature to determine beforehand the price at which a commodity may be sold or at which contracts in relation thereto might be entered into. The price must be dependent upon factors varying from time to time and cannot, therefore, be always a proper subject of legislative determination. Any fixation of prices either by naming a figure or by reference to the market price ruling on a particular date, must be productive o f hardship both by reason of being mechanical and therefore out of tune with the varying factors which might obtain from time to time, as also o f being Hable to manipulation by unscrupulous traders...

N or is any defect in the A ct that it does not in so many terms lay down the principles for the fixation o f the price...the only guidance which the Parliament could have given was to direct that the price fixed be reasonable taking into account the relevant fadtors we have enumerated earlier, and this w e consider is implicit in the provision in S. 16 of the A ct as moch as S. 3 of the Essential Commodities A ct." M/s Raghubar Dayal v. Umpn c f india}'^


42. A. I. R. 1962 S, C. 26^

2. Section 3 (1) of tbe Foreigners A ct, 19^6, runs as follows ; “ The Central Government may by order make provision either generally or with respect to all foreigners or with respect to any particular foreigners for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence theirin.”The validity of the section was challenged on the ground that it

involved an execessive delegation o f authority to the Central Government and that it conferred uncontrolled powers on the Central Government over foreigners without any relation to the object of the Act.

Banerjee, J. delivering the judgment referred the long title and the preamble o f the A ct and held;

“ The object of the A ct, therefore, is limited to powers over the entry, presence and departure of foreigners into, in, and from India, This is a very necessary power, which every government must posses over foreigners, whose presence may be or may, in course of time, becom e dangerous to the security of the administration or undesirable for other reasons. Since such reasons may be many and may arise on account o f political and other considerations, too numerous to define, the legislature could not visuaHse all the eventualities and left the whole matter of foreigners’ presence in India to the executive discretion. The problem of immigration and presence of foreigners is difficult for the legislature to resolve once for all, because the problem is linked up with many variables, both national and international. A foreigner, once a friendly alien, may become an enemy alien after he enters India, if his country later on enters into war with the country where he may be; or even though belonging to a friendly nation, a foreigner may himself indulge in undesirable activities jeopardising the security of the country where he may be, or foreigners may come in such numbers or put in such competition as may upset the economic set-up of the country. It must, therefore, be left to the executive discretion as to which foreigners should be allowed entry into the country, under what condition they should stay in the country and when and how they should depart therefrom. S. 3 of the Foreigners A ct,..is not bad for excessive delegation of authority.,. Apart from the guidance given in the preamble to the A ct and in the section itself, no larger guidance is possible to be given and no set pattern is feasible to be set up because o f the nature of the problem concerning foreigners....” A. H. Magermans v. S. R. Ghosfi/'^


43. A. I. R. 1963 Cal. 369.

3. Section 9(2) of the Citizenship A ct, 1955, provides that if any question arises as to whether an Indian citizen has acquired the citizenship o f a foreign country, it was to be determined by such authority, in such manner and having regard to such rules-^of evidence as may be prescribed in this behalf by rules. In hhar Ahmad y. Union o f I n d i a this provision was challenged on the ground that it confers on the Central Government uncanalised and arbitrary power to make rules without any guidance and therefore amounted to excessive delegation. The Supreme Court rejected the argument that Section 9(1) has itself provided that an Indian citizen loses his Indian citizenship if he acquires foreign citizenship by naturalisation or registration. “ The Legislature knew that the acquisition of the citizenship o f a foreign State may be made voluntarily even otherwise than by naturalisation or registration and so it has provided for the third category of acquisition o f foreign citizenship under the last clause “ otherwise voluntarily acquires” so that rule-aiaking [under section 9 (2)] had to be confined primarily to this last category o f acquisition o f foreign citizenship. The basic principle on which the A ct proceeds and which has been recognised by Art. 9 of the Constitution itself is that no Indian citizen can claim a dual or plural citizenship. The acquisition o f foreign citizenship can be made by naturalisation or registration and as soon as it is so made, the prior Indian Citizenship is terminated. It is in the light of these principles which are writ large on the provisions o f the A ct that the rule-making power had to make rales about the class o f cases falling under the last category o f acquisition o f foreign citis^enship, and the rules show how the task has been, attempted. W e have already referred to Rr. 1 to 3. Rules 4 and 5 which deal with cases other than those where passport has been obtained by an Indian citizen, prescribed relevant factors which have to be considered in each case before deciding whether foreign citizenship has been acquired by an Indian or not and the impungned R. 3 itself proceeds on the basis that the conditions prescribed by the Pakistan Law take the case o f obtaining a passport from the Pakistan Government very near to the case o f registration or naturalisation. Therefore, having regard to the scheme o f the A ct and the principles enunciated in its relevant sections, we do not think that it caij be held that in enacting section 9 (2), the Legislature has abdicated its essential legislative function in favour o f the rule-making authority. That is why our conclusion is that section 9 (2) is valid.*’


44. A, I R. 1962 S, C. 1052,

CORPORATION OF CALCUTTA v. LIBERTY CINEMAA.I.R. 1965 S.C. 1107

[Section 443 of the Calcutta Municipal Act, 1951, provides that no person shall without a licence granted by the Corporation keep open any cinema-house for public amusement. Sub-section (2) of section 548 says that for every licence under the A ct, a fee may, unless otherwise provided, be charged at such rate as may from time to time be provided. In 1948, the Corporation had fixed the scale of fees on the basis of the annual valuation of the cinema-houses. The respondent obtained a licence for its cinema-house and had been paying a licence fee of Rs- 400/- per year calculated on the aforesaid basis.

By a resolution passed on March 14, 1958 the Corporation changed the basis of assessment of the licence fee which was to be assessed henceforth at rates prescribed per show according to the sanctioned seating capacity o f the cinema houses. Consequently, the respondent’s cinema house became liable to a fee of Rs. 5/~ per show, and thus had to pay a fee of Rs. 6,000/- per year.

The respondent moved the Calcutta High Court under Article 226 of the Constitution for a writ quashing the resolution. The High Court quashed the resolution of the Corporation. Hence the present appeal by the Corporation to the Supreme Court.]Sarkar, J, ; (W ith him Raghubar Dayal and Mudholkar JJ.)

It was then said that if S.548 authorised the levy of a tax as distinct from a fee in return for services rendered, it was invalid as it ' amounted to an illegal delegation of legislative functioning to the Corporation because it left it entirely to the latter to fix the amount of the tax and provided no guidance for that purpose..,.

On the basis that S. 548 is a piece of delegated legislation, it has been contended on behalf of the Corporation that the rate of a tax is not an essential feature of legislation and the power to fix it was properly delegated to the Corporation as sufficient guidance for that purpose was given in the Act. It is not in controversy, and this indeed has been held by this Court, that if that is so, the section would be unexceptionable. The question first is whether the power to fix the rate o f a tax can be delegated by the legislature to another authority, whether it is of the essence of taxing legislation. The contention o f the Corporation that fixation of rates is not an essential part of legislation would seem to be supported by several judgments o f this Court...,


[Referring to Pandit Benarsi Das v. State o f M. P. ® which was concerned with a Sales Tax statute, the Court stated that] the A ct was a statute imposing taxes for revenue purposes. This case would appear to be express authority for the proposition that fixation of taxes may be legitimately left by a statute to a non-legislative authority, for we see no distinction in principle between delegation of power to fix rates of taxes to be charged on different classes o f goods and power to fix rates simpliciter. If pow er to fix rates in some cases can be delegated then equally the power to fix rates generally can be delegated. N o doubt Pandit Banarsi Das’s case...was not concerned with fixation o f rates of taxes, it was a case where the question was on what subject matter, and therefore on what persons, the tax could be imposed. Between the two we are unable to distinguish in principle, as to which is of the essence o f legislation. If the power to decide who is to pay the tax is not an essential part of legislation, neither would the power to decide the rate of tax be so. Therefore, we think that apart from the express observation made, this case on principle supports the contention that fixing of the rate of a taxis not of the legislative pow er....

' N o doubt when the power to fix rates of taxes is left to another body, the legislature must provide guidance for such fixation. The question then is, was such guidance provided in the A ct ? W e first wish to observe that the validity o f guidance cannot be tested by a rigid uniform rule: that must depend on the object of the A ct giving power to fix the rate. It is said that the delegation of power to fix rates of taxes authorised for meeting the needs of the delegate to be valid, must provide the maximum rate that can be fixed, or lay down rules indicating that maximum. W e are unable to see how the specifications o f the maximum rate supply any guidance as to how the amount o f the tax which no doubt has to be below the maximum, is to be fixed. Provision for such maximum only sets out a limit of the rate to be imposed and a limit is only limit and not a guidance.)

It seems to us that there are various decisions of this Court which support the proposition that for a statutory provision for raising revenue for the purposes o f the delegates, as the section‘ now consideration is, the needs of the taxing body for carrying dut its functions under the statute for which alone the taxing power was conferred on it, may afford sufficient guidance to make the power to fix the rate o f tax validj...

' 45. A. I. R. 1958 S. C, 909, infrcf, —


The W estern Indian Theatres Ltd. v. Municipal Corporation of the City of Poona, A.I.R. 1959 S.C. 586 was concerned with a statute under which the respondent Corporation had been set up' '" and which gave that Corporation power to levy “ any other tax” . It was contended that such a power amounted to abdication o f legislative function as there was no guidance provided. The contention was rejected. One of the grounds for this view was that the statute authorised the municipality to impose taxes therein mentioned for the purposes of the A ct and that this furnished sufficient guidance for the imposition of the tax. Again, no doubt, this was not a case dealing 'with rates of taxes, but if a power on the Corporation to impose any tax it liked subject to the guidance mentioned was valid, that would include in it the power to fix the rates of the tax, subject of course to the same guidance. Such a power has to be held to be good^: It is true, as was pointed out by learned advocate for the respondent, that other grounds were mentioned in support of the view taken in the W estern India Theatres case...but that surely is irrelevant, for it cannot make the ground of the decision there which we have earlier set out devoid of all force...

The last case which we wish to notice in this connection is the Union of India v. Bhana Mai Gulzari Mai; ... A I.R. 1960 S.C. 475. Section 3 of the Essential Supplies (Temporary Powers) A ct, 1946, came up for consideration there. That section gave power to the Government to make necessary orders for maintaining or increasing supplies of any essential commodities or for securing their equitable distribution and availability at fair prices. In Harishankar Bagla v. The State of Madhya Pradesh....A. I. R. 1954 S. C. 465 the validity of the delegation of power contained in that section had been upheld as it laid down the policy as to how that power was to be exercised by the delegate, that is the Government. In Bhana Mai Gulzari M ai’s case the validity of an order made under S. 3 reducing the price at which steel could be sold was challenged. This challenge was rejected on the ground that the order fixing the price carried out the legislative object prescribed in S. 3. It was observed at p. 480,

“It is not difficult to appreciate how and why the Legislature must have thought that it would be inexpedient either to define or describe in detail all the relevant factors which have to be considered in fixing the fair price of an essential commodity from time to time. In prescribing a schedule o f maximum prices

46. The Bombay District Municipal Act, 1901.


the Controller has to take into account the position of the commodities in question, the demand for the said commodities, the availability of the said commodities from foreign sources and the anticipated increase or decrease in the said supply or demand. Foreign prices for the said commodities may also he not irrelevant. Having regard to the fact that the decision about the maximum prices in respect of iron and steel would depend on a rational evaluation from time to time o f all these varied factors, the Legislature may well have thought that this problem should be left to be tackled by the delegate with enough freedom, the policy o f the Legislature having been clearly indicated by S. 3 in that behalf.”

Again it was said at p, 481,

“ In deciding the nature and extent o f the guidance which should be given to the delegate, Legislature must inevitably take into account the special features of the object which it intends to achieve by a particular statute...Having regard to the nature of the problem which the Legislature wanted to attack it may have come to the conclusionfthat it would be inexpedient to limit the discretion of the delegate in fixing the maximum prices by reference to any basic price,"

The portion in the judgment in Bhana Mai Gulzari M ai’s case... quoted in the preceding paragraph will show that S ie validity of the guidance required to make delegation o f power good cannot be judged by a stereotyped rule. W ith respect, we entirely agree with this view. The guidance furnished must be held to be good if it leads to the achievement o f the ob ject of the statute which delegated the power. The validity of the power to fix rates o f taxes delegated to the Corporation by S. 548 of the A ct must be judged by the same standard. N ow there is no-dispute that all taxes, ifl'qluding the..one und^r this secti<m can be collected and used by the Corporation only for discharging its functions under the A ct. The Corporation subject to certain controls with which we are not concerned, is an autonomous body. It has to perform various statutory functions. It is often given power to decide when and in what manner the functions arc to be performed. For all this it needs money and its needs will vary from time to time with the prevailing exigencies. Its power to collect tax, however, is necessarily limited by- the expenses required to, discharge those functions. It has, therefore, wh^re rate§ have not been specified lA the statute, to fix stich rates as


may b6 necessary to meet its needs. That, we think, would be sufficient guidance to make the exercise o f its power to fix the rates valid. The case is as if the statute had required the Corporation to perform duties A, B and C and given power to levy taxes to meet the costs to be incurred for the discharge of these duties and then said that, '^provided, however, that the rates of the taxes shall be such as would bring into the Corporation s hands the amount necessary to defray the costs of discharging the duties/’ W e should suppose, this would have been a valid guidance* W e think the A ct in the present case impliedly provides the same guidance; See S. 127 (3) and (4). It would be impracticable to insist on a more rigid guidance. In the case of a self-governing body with taxing powers, a large amount of flexibility in the guidance to be provided for the exercise o f that power must exist ... There are epidemics, influx of refugees, labour strikes, new amenities to be provided for, such as hospitals, schools — and various other such things may be mentioned.— which make it necessary for a colossal municipal Corporation like that of Calcutta to have a large amount of flexibility in its taxing powers. These considerations lead us to the view that S. 548 is valid legislation. There is sufficient guidance in the A ct as to how the rate of the levy is to be fixed,.;.

Ayyangar, J. (for himself and Subba Rao J.)The next head of argument on this point was based on invoking

the principles stated to have been laid down by certain American decisions to which we were referred. The principal authority on which reliance was placed was the formulation of the law by Fuller C. J. is Soiitenburgh v. Hennick, (1889) 129 U. S. 142 : 32 Law. Ed. 637. Speaking for the majority of the Court he said :

“ It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs the central authority; and hence while the rule is .also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer o f general legislative power, but rather as the grant of authority to prescribe local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity.”

There are similar passages in judgments in other cases to which also our attention was drawn. But we do not, however, see the appositeness of th$ Americaii rule to the interpretation pf the Ipdi&n Congtitytion,


particularly in the context of the criteria there indicated. Besides the rule as to limits of delegation by the legislatures constituted in India by the Constitution has been the subject of elaborate consideration by this Court in the Delhi Laws A ct case .. and in the later decisions in Vasanlal Maghanbhai Sanjanwala v. The State o f Bombay, A.I.R. 1961 S. C. 4; Jyoti Pershad v. The Administrator for the Union Territory of Delhi, A.I.R. 1961 S. C. 1602 to mention a few and these decisions bind this Court. These decisions have not k id down that a different rule applies where the delegation o f legislative power is in favour of a municipal corporation. W e , therefore, consider that the analogy of the American decisions affords no guidance for the application of a different rule as to what constitutes excessive delegation in the case of legislation creating municipal bodies.

If then the same tests have to be applied to determine the limits of permissible delegation o f quasi legislative power whether the same be in favour of municipal bodies or in favour of other administrative agencies, the question next to be considered is whether *the A ct affords sufficient guidance to the municipal authority for the levying of the rate. The subject o f the limits of the delegation of legislative power has been the subject of consideration in several decisions of this Court including the Delhi Laws A ct case mentioned above-••

If the validity of S. 548 (2) of the A ct be judged by this test, the questions that arise a re : (1) W hether the power to determine the rate of a tax is an essential legislative function or is it merely a minor and incidental matter, (2) Assuming it is an essential legislative function, whether the A ct has indicated with reasonable certainty the principles upon which that power has to be exercised or laid down the standards for the fixation of the rate. Now, on the first point as to whether it is an essential legislative function or not, the submission of Mr. Pathak was that it was not, and for this purpose he relied principally on three decisions o f this Court the first one [ Banarsi Das v. The State o f M. P. ] xvas concerned with the constitutional validity of a provision in the C.P. Berar Sales Tax A ct,1947, which conferred upon Government power to withdraw certain exemptions from the tax as levied by the A ct...M r. Pathak submitteci that this was an explicit decision holding that the determination of a rate at which a tax might be levied was not an essential legislative function. On the other hand, Mr. De urged that the emphasis in the, passage was really on “ different classes of goods”—and not on the determination of a rate simpliciter,... W e see considerable force in


this agrument and as we shall show by a reference to later decisions o f this Court, this passage has not been understood in the sense in which Mr. Pathak desires us to understand, that a legislation which leaves the rate of taxation entirely to the executive does not suffer from the vice of excessive delegation. If Mr. Pathak is right, in order to impose an income tax, it would be sufficient for the legislature to pass a single section empowering the executive to levy the tax at such rates as they might consider appropriate on the different classes of persons who they consider proper and with reference to such income as might choose to tax. This illustration o£ what his argument would lead to—was put to Mr. Pathak but his only answer was that"that was not the case before us.

The second case that Mr. Pathak referred to was [W estern India Theatres Ltd. v. Municipal Corporation of the City of Poona]....

N o doubt, this decision does support learned counsel to some extent but a question in the form in wliich it arises now was not before the Court, The only point was whether there was sufficient formulation of policy for determining the nature of the tax which a municipality might impose. The answer was in the affirmative, based principally on two grounds; (1) that by sub-s. (2) of S. 59 as well as OFi general principles of law the power of the municipality to levy taxes was confined to those on which Provincial Legislature could legislate...Coming to the positive aspect, the learned Judges held that the other specified items of taxes coupled with the purposes for which tax was to be levied, indicated the nature of the tax that was to be levied. W e are unable to agree that this case decides that the fixation of a rate of tax is not an essential legislative function but a mere matter of detail which could be delegated to a subordinate lawmaking body.

The last of the decisions relied on in this connection was in Vasanlal v. The State of Bombay, A. I. R. 1961 S. C. 4. It was not a case regarding the determination of a rate at which tax could be levied but of the rent which a tenant might be required to pay under the Bombay Tenancy and Agricultural Land Act, 1948-.

The decision proceeded on the basis that the fixation of rent was an essential legislative function. It was, however, held that the legislature had enunciated the principle subject to which the delegate could exercise its subsidiary powers... The basic reasoning on which that decision rests is that for fixation of a reasonable rent under 5 ,12 by the Mamlatdar the necessary factors had all been specified

2ii INDIAN ADMINISTRATIVE LAW [ CHAPTER 4

and on a construction o f the A ct the learned Judges o f the majority reached a conclusion that the exercise of power under S, 6 (2) had to be effected on the same basis and with reference t o the same factors which were specified in S. 12 (2) of the A ct .. , It would, therefore, be seen that far from Vasanlal’s case being an authority for the position that the fixation of a rate o f rent is not an essential legislative function but a mere matter o f detail which could be left to making authority, the decision clearly lays down that it is an essential legislative function and it could not be delegated without sufficient guidance.

The final result o f this analysis o f the decisions as laying down the law so far as the Constitution is concerned, may be thus summarised : (1) Essential legislative functions cannot be delegated but where the law lays down the principles and 'affords guidance to the subordinate law-making authority details may be left for being filled up by the executive or by other authorities vested with quasi-legislative power, (2) the Power to fix a rate of tax is an essential legislative function and therefore unless the subordinate law-making authority is afforded guidance by the policies being formulated, principles enunciated and standards laid down the legislation will suffer from the vice o f excessive delegation and would be void as arbitrary or unconstitutional.

This leads us to the last of the points urged by Mr. Pathak that the A ct itself affords sufficient guidance and fixes standards by which it could determine the rate at which a tax could be levied. It is not, and cannot be, disputed that the guidance could be afforded not merely by the provision enabling the tax to be levied but by other provisions of the A ct including the preamble. But the question is whether there are any such provisions in the A ct which could serve to determine the standard upon which the rate o f tax to be levied is to be determined. Mr. Pathak first referred us to the preamble where it is cited that the A ct enacted was one relating to the municipal affairs of Calcutta. W e are unable to see bow this affords any assistance in this regard. H e next referred us to S. 24 reading, to quote the material words :—

“ Subject to the provisions of this A ct and the rules, bye lawsand regulations made thereunder the municipal government o fCalcutta shall vest in the Corporation,”

and to Ss. 42 to 47 which deal with the supervision of the State Government over the affairs and activities o f the Corporation. As


regards S. 24, we are unable to see how this helps learned counsel in the present argument. N o doubt, the Municipal Government of Calcutta is vested in the Corporation but question is what powers are vested in that Government. If by describing the powers of administration of the city of Calcutta vested in the Corporation, as "a government” every power necessary to effectuate governmental functions was involved there would have been no necessity at all for the other provisions of the A ct. It is not, therefore, as if the expression ‘government’ gathers within its fold all powers necessary for administration or creates an independent sovereign body entitled to legislate in any manner it likes provided the same is necessary for the purpose of carrying on civic Government. It is obvious that that is not the sense in which the word ‘Government’ is employed in S. 24. The Corporation is still a subordinate body which is the creature of the legislature and can only function within the framework of the powers conferred upon it by the Municipal Act, Nor are we able to appreciate how any assistance is derived in this regard from the powers of supervision which the State Government has over municipal affairs under Ss. 32 to 47. The supervision is only by the Executive Government and the question relating to the vice of excessive delegation is as much appHcable to powers exercisable by the Executive Government as to the Corporation. If no standards have been laid down by the A ct for the Corporation to afford it a guidance for the fixation of a rate the fact that supervisory power is conferred upon the executive would not obviate that objection for the Government itself would have no guidance from the legislature as to the policy to be adopted in exercising the supervision....

Principal reliance, however, was placed by learned counsel on Ss. 115 and 117 of the A ct as affording the requisite guidance. These read ;—

Section 115 ; “ There shall be one Municipal Fund held by the Corporation in trust for the purposes of this A ct to which all money realised or realisable under this A ct (other than fine levied by Magistrates) and all moneys otherwise received by the Corporation shall be credited,”

Section 117 : “ (1 ) The moneys from time to time credited to the Municipal Fund shall be applied in payment of all sums, charges and costs necessary for carrying out the purposes of this A ctj or of which the payment is duly directed or sanctioned by or under any of the provisions o f this Act.


(2) Such moneys shall likewise be applied in payment of allsums payable out o f the Municipal Fund under any otherenactment for the time being in force.”

Reference was also made in this connection to S. 126 under which annual budget estimates have to be prepared for the Corporation in which a statement o f the proposals as to taxation which would be necessary or expedient to impose in the said year and the expenditure to be incurred would all have to be set out. It was, therefore, submitted (1 ) that there was a municipal fund into which all collections were deposited, and (2) the amount of the collection was determined b y the expenditure which it was either obligatory or permissive for the Corporation to incur. Thus no taxes could be raised except such as were needed for the expenditure for which provision had been made in the budget and the rate of tax was,therefore, determined by the needs o f the Corporation..... W e donot consider that Ss. 115 and 117 afford any guidance for the fixation of a rate. If the amount o f money which a municipality needs for discharging its functions, affords any guidance it would appear to follow that the needs of a State for the expenditure which it was to incur for its manifold activities and again of the Union for the activities which it might undertake ought to afford sufficient guidance to sustain the validity of a skeleton legislation o f the type we have indicated earlier. Thus, if learned Counsel is right in his submission as regards Ss. 115 and 117 read with S. 126 as affording sufficient guidance a legislation by a State Legislature or Parliament enacting that the Government might raise such taxes as it considers necessary and at such rates as it might consider proper for meeting the expenditure o f Government could be constitutional and there would be no need for a parliamentary scrutiny and legislation as regards the rates of the several taxes to be levied within the State or the Union, as the case may be. A s Mr. Pathak himself realised, this would be plainly unsupportable. If this were so, merely because the area of Government was restricted to a municipality we do not consider how these provisions afford guidance to the subordinate law-making authority, viz., the Municipal Corporation to fix the rate o f the levy. Pausing here, learned Counsel said that even if a maxima were prescribed still it left an amount of discretion to the Municipal Corporation or the Executive, as the case may be, and that even such a “ guided” pow er could be attacked as ultra vires. This, however, does not follow. The unconstitutionality arises put of the discretion being wholly uncanalised and unguided. The argument on the other


side is not that no discretion could be left to the legislature to determine within permissible limits the precise rate that would secure the purpose which it seeks to achieve but rather that no guidance is at all afforded and a blanls cheque given to the subordinate authority. W here a maxima is fixed and the limit of discretion is thus controlled the legislature has exercised its legislative power on that topic, viz., the particular tax. In the other case, where it merely authorises the subordinate law-making authority to levy the tax without indicating the essential legislative features of such a tax it is not really legislation on the taxation entry but is merely authorising the subordinate legislature to enact a law on that t o p i c - I t has, therefore, to be held that, viewed as a tax, the delegation is unconstitutional as the essential legislative functions are parted with to the subordinate law-making body and the provision is, therefore, unconstitutional. Appeal Allowed.

24S INDIAN ADMINISTRATIVE La w [ CHAPTER 4

PROBLEMS AND NOTES

• 1. In Hamdard Dawakhana v. Union o f I n d ia ,Kapur, J. stated as fo llow s:

“ The distinction between conditional legislation and delegated legislation is this that in the former the delegate’s power is that of determining when a legislative declared rule of conduct shall become e & e c th e Hampton & Co, y , U, S . (1927) 276 U. S. 394, and the later involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words, by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend,...*® Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the47. A. I. R. I960 S. C. 554,566-67. ~ ~ "

was made to Queen v. Biirah, 51 I. A. 178; Russell v. Queen, (1882) 7 A. C. 829; Emperor v. Benoari Lai 72 I. A. 57; Inckr Singh v. State of Rajasthan, A.I.R. 1957 S.C. 510 (Ed.).

legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise o f delegated legislation. But when the legislation is com plete in itself and the legislature has itself made ahd the only function left to the delegate is to apply the law to an area or to determine the time and manner o f carrying it into effect, it is conditional legislation....”Here an attempt has been made to point out the dichotom y

between conditional legislation and delegated legislation. The question is whether such dichotomy is involved. Is not conditional legislation which involves conferment of less discretion on the administration, a species of the genus delegated legislation? Is it worth-while any longer to keep the doctrine of conditional legislation alive after a broader doctrine of delegated legislation has been judicially accepted ?

2. The ruling of Mahajan, C. J. (as he then was), in the Bagla case has gone too far. H e took a very restrictive view of delegation in the Delhi Laws Act case. He had said that he stood by the Federal Court ruling in the Jatindra Nath’s case. H e had further emphasized that the nature of the legislative duty was such that it should be discharged by the very body to which it was entrusted. Therefore, he had declared th ere : Delegation o f legislative power in matters essential is unconstitutional. In the Bagla case, however, he denied that section 6 involved any delegation, and that the implied repeal of an A ct by an order was not because o f the delegate’s declaration but because the Legislature itself had declared its will.

D o you agree with this view ? Is this not mere formalistic way of explaining things ?

3. The Supreme court has maintained that the Bhatnagars case was not distinguishable from the Bagla case. D o you agree ? Can you find something in Bhatnagars case which went beyond what the Court had held valid in the Bagla case ?

4. In the Garewal case the Court found the policy of the A ct in the rules adopted under it. These rules could be modified or changed by the delegate. D id it not mean that even the policy could be altered ? W as it satisfactory to hold the transient rules made by the delegate as embodying the legislative policy ?

W as the decision based on the policy ’ approach, or on the fact that there was the “ laying” provision which gave the Parliament some control over the rules made

49. For this topic see


5. From tbe above cases, the principle would appear to be well established that the Legislature cannot delegate the essential legislative function to the E xecutive; that delegation of legislative power would be valid only if the legislature lays down the policy and principles, and affords guidance to the delegate to carry out the said policy.

In applying this test in actual practice, however, the courts have taken a liberal view of delegation, and have upheld very broad and general delegations treating vague statements of “policy” as adequate for the purpose. In fact, the courts have endeavoured to find legislative policy in the impugned legislation so as to sustain, rather than to veto delegation.

W hile paying lip service to the principle that the delegation would be bad in the absence o f “ poHcy” in the A ct, courts have upheld broad delegations either by reading “ policy” into the preamble and/or in other provisions; sometimes even by going beyond the A ct and taking into account the legislative history, affidavits filed by governm ent; by implying “poHcy” into the provision questioned, and even holding that the nature of the subject-matter is such that “ no more guidance” could be given by the legislature to the delegate.

Usually, the “ policy” is couched in very general or indefinite terms, as for example, in the Bagla and Garewal cases.

In the Raghubar Dayal^ case, the formula conferring the power to fix prices did not lay down any standard or test. Nevertheless the Supreme Court held it valid by reading the adjective “ reasonable” into the provision challenged. In the Bagla case, the Supreme Court ruled that to ascertain the policy of the parent A ct delegating legislative power, a reference may be made to the preamble o f the A ct. But in the Bhatnagars case the Court went much further as it took into consideration the policy of the repealed A ct. In the Magcrmans^^ case the Court seenis to have justified the entrusting of the regulation of the presence of foreigners in India to the executive discretion. In the light of this approach can the “ policy” principle be said to be of any practical value? Is it not “ symbolic” rather than “ real”? Does not the Court go to great lengths to uphold delegating provisions?

Does such a judicial approach serve any useful purpose ? Can the judicial control at the first stage, viz., that of delegation, achieve

50. A. I. R. 1962 S. C. 263. ~53. A. I. R. 1963 Ca). 369,

250 INDIAN ADMINISTRATIVE LAW [ CHAPTER ’4

anything in practice ? D o you feel that judicial control at this stage needs to be strengthened ? W hy ? A nd how ?

In this connection consider the following observations by Subha Rao, J., in his dissent in the Vasanlal Maganbhai v. State o f Bombay, '"''

“ The Constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process o f delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits o f delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance o f the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it w ithout reserving for itself any control over subordinate legislation. The self effacement o f legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits. But the said liberal construction should not be carried by the courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities, It is the duty of this Court to strike down without any hesitation any blanket power conferred on the executive by the legislative.”

6. Does the fact that the delegated legislation framed under an A ct is to be laid before the Legislature make any difference in the judicial attitude while adjudging the constitutionality o f a delegating provision?

W hat is rational justification o f taking the above situation into consideration by the courts?

■ 7. Refer to the Liberty Cinema-' case : In the Banarasidas case, the court considered the question of modifying a schedule annexed

52. A. I. R. 1962 S. C. 4, 11-12.53. A. I. R. 1965 S. C. 1107.


to the A ct and it found that the A ct laid down the policy subject to which this could be done. The effect of the particular amendment of the schedule was to render some persons subject to sales tax which they were not under the Act. In the Liberty Cinema case, the majority accepts that the case of Banarsi Das did not concern with the rates of taxation but with the subject-matter of taxation. D o you agree with the majority view that there is no distinction in principle between the two situations ?

The majority holds in the Liberty Cinema case that for the purposes o f the A ct there is adequate statement o f policy. The minority challenges this view. Is not the minority view on this point more cogent and justified ?

Is not majority judgment concerned more with explaining, as to why the legislature cannot articulate policy while conferring taxing powers on a corporation, than with finding whether the A ct contains a sufficient policy ? Is not this approach nearer to the American view propounded in Soutenburgh v. HennickJ'^ which the minority rejected so brusquely ? Is not that a more plausible approach in respect o f an elected corporation than trying to take recourse to the fiction o f policy when there is really none in the A ct ? Cannot an elected body be treated difJerently from an executive in the matter of delegated legislation ?

One of the arguments accepted in the Western India Theatres^^ case was that since the taxing power of the municipality was made subject to the approval of the Governor-in-Counci], the Legislature had not abdicated in favour of the municipality. Examine what the minority - in the Liberty Cinema case makes of this argument ? Is not the minority view more convincing ?

(b) Power to add, amend or modify an Act o f legislature or exempttherefrom

A t times, a statute delegates on the administration not the normal rule-making power but a power to add to, amend, modify or exempt from the parent A ct. In many instances power is given to add to or modify a schedule annexed to the Act; in others it may be a power to modify a provision of the Act.

Questions have often arisen whether such a power is valid, and if so, imder what conditions ? Generally the judicial view has been that such a power is valid if the parent A ct lays down a policy.

54. (1889) 129 U. S. 142,55. A. 1. R, 1959 S. C. 586, supra.


The Edward case considers the validity of the power toadd to the schedule, the Banarasi Das case examines the question of modification of the schedule. In Hamdard Dawakhana ' case power to add to the schedule was held bad as being unguided, Rajmrain’s case deals with a pow er to amend any provision o f the parent A ct, In this connection, Bagla’s case may also be noted where an order made by the delegate was held valid notwithstanding its inconsistency with any enactment other than the parent A ct,


EDWARD MILLS CO. v. STATE OF AJMER A.I.R. 1955 S. C. 25 .

[In 1948, the Central Legislature o f India passed the Minimum Wages A ct, 1948, the ob ject of which, as stated in the preamble, is to provide for fixing minimum rates of wages in certain em 'f^ ^ ien ts . The schedule attached to the A ct specifies, under tw o parts, the employments in respect of which the minimum wages of the employees can be fixed : and section 27 authorises the “ appropriate Government’', after giving three months" notice of its intention to do so, to add to either part of the schedule, any other employment in respect of which it is o f the opinion that minimum rates o f wages should be fixed under the A ct.

In O ctober, 1950, the State Government included employment in the textile industry as an additional item in Part I of the schedule, and on O ctober 7,1952, the Government issued a notification fixing minimum wages under the A ct for that employment.

The petitioners challenged the final notification as illegal and “ultra vires” ]

Mukherjea, J,:

It is argued that the A ct nowhere formulates a legislative policy according to which an employment shall be chosen for being included in the schedule. There are no principles prescribed and no standard laid ■ down which could furnish an intelligent guidance administrative authority in making the selection. The matter is leit entirley to the discretion o f the “ appropriate Government” which can amend the schedule in any way it likes and such delegation of

’ 56. A. I. R. 1955 S. C. 25, w M57. A. I. R. I960 S, C. 554, infra,

power virtually amounts to a surrender by the Legislature of its essential legislative function and cannot be held valid. There is undoubtedly an element of delegation implied in the provision of Section 27 of the A ct, for the Legislature, in a sense, authorises another body, specified by it, to do something which it might do itself. But such delegation if it can be so called at all does not, m the circuaistances of the present case, appear to us to be unwarranted and unconstitutional...,

Mr. Chatterjee contends that the essential legislative function is to lay down a policy and to make it a binding rule of conduct. This legislative policy, he says, is not discernible anywhere in the provisions of this A ct and consequently there is no standard or criterion to the administrative authority in the exercise of the subsidiary legislative powers. W e do not think this is the correct view to take. The legislative policy is apparent on the face of the present enactment.W ha|;a4t.aims at, is the statutory fixation of minimum wages with avie'c«^^^^^^iate the chance of exploitation of labour.

The legislature undoubtedly intended to apply this A ct not to all industries but to those industries only where by reason^of unorganized labour or want of proper arrangements for effective regulation of wages or for other causes the wages o f labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the A ct but the list is not an exhaustive one and it is the policy of the legislature not to lay down at once and for all time, to which industries the A ct should be applied. Conditions o f labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of a particular State-

It is to carry out effectively the purpose of this enactment that power has been given to the “ appropriate government” to decide, with reference to local conditions, whether it is desirable that minimum wages shovild be fi-xed in regard to a particular trade or industry which is not already included in the list. W e do not think that in enacting Section 27 the legislature has in any way stripped itself o f its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the A c t .....

254 INDUN ADMINISTRATIVE LAW [ CHAPTER 4

M OHD. HUSSAIN v. STATE OF BOMBAY A. I. R. 1962 S.C. 97.

[The petitioners, businessmen o f Ahemdabad were carrying on business in the locality known as Kaliipur market. In 1959, as per notifications issued by the Srate Government under the Bombay Agricultural Produce Markets A ct, 1939, Kalupur market was declared to be a sub-market yard for the purposes o f the Act. Therefore, after the declaration, the , market committee, established under Section 5 o f the A ct for the Ahmedabad market area, required the petitioners to obtain licences in order to carry on business. In challenging the constitutionality o f the A ct and the rules framed thereunder, petitioners contended, inter alia that the power given to the State Government under Section 29 o f the A ct to add to, amend or cancel any of the items o f agricultural produce specified in the schedule to the A ct was improper,]

Wanchoo,

The next attack is on S. 29 of the A ct, which provides that the State Government may by notification in the official gazette, add to, amend or cancel any o f the items of agricultural produce specified in the Schedule. It is submitted that this gives a completely unregulated power to the State Government to include any crop within the Schedule without any guidance or control whatsoever. W e are of opinion that this contention must also fail. It is true that S, 29 itself does not provide for any criterion for determining which crop shall be taken out therefrom but the guidance is in our opinion writ large in the various provisions o f the A ct itself. As we have already pointed out, the scheme of the A ct is to leave out. of account retail sale altogether; it deals with what may be called wholesale trade and this in our opinion provides ample guidance to the State- Government when it comes to dicide whether a particular agricultural produce should be added to, or taken out of, the schedule. The State Government will have to consider in each case whether the volume of trade in the produce is o f such a nature as to give rise to wholesale trade. If it comes to this conclusion it may add that produce to the Schedule. On the other hand, if it comes to the conclusion production of a particular produce included in the Schedule has fallen and can be no longer a subject-m atter o f wholesale trade, it may take out that produce from the schedule.,.. [T]he pow er is given to the State Government to add to, or amend or cancel any of the items o f the agricultural produce specified in the Schedule in


accordance with the local conditions prevailing in different parts of the State in pursuance o f the legislative policy which is apparent on the face of the A ct. Therefore, in enacting S. 29, the Legislature had not stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and policy of the Act. W e therefore reject the contention that S. 29 of the A ct gives uncontrolled power to the State Government and is therefore unconstitutional.


HAMDARD DAWAKHANA v. UNION OF INDIA

A.I.R. 1960 S.C. 554

[Section 3 (d) of the Drug and Magic Remedies (Objectionable A d^ '^^^ttents) A ct runs as follows ;

“ Subject to the provisions of this Act, no person shall take any part in the pubHcation of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use o f that drug for...(d ) the diagnosis, cure, mitigation, treatment or prevention of any disease or any other disease or condition which may be specified in rules made under this A c t” (emphasis added)

Power to make rules was laid down in Section 16 which was as follows :

Section 16 (1) The Central Government may by notification in the official gazette make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may—

(b) Specify any disease or condition to which the provisions of S. 3 shall apply;....]

Kapur, J, :

The third point raised by Mr. Munshi was that the words ‘or any other disease or condition which may be specified in the rules made under this A ct in clause (d) of S. 3 of the A ct are delegated legislation and do not lay down any certain criteria or proper standards, and surrender unguided and uncanalised power to the executive to add to diseases in the schedule..., But th? di^^iretipn

should not be so wide that it is impossible to discern its limits. There must instead be definite boundaries within which the powers of the administrative authority are exercisable. Delegation should not be so indefinite as to amount to an abdication o f the legislative function..,.

The interdiction under the A ct is applicable to conditions and diseases set out in the various clauses of S. 3 and to those that may under the last part of clause (d) be specified in the rules made under S. 16,... It is the first sub-section o f S. 16 which confers the general rule making power i.e., it delegates to the administrative authority the power to frame rules and regulations to subserve the objective and purpose of the A ct. Clause (a) of the second sub-section is merely illustrative o£ the power given under the first sub-section (1) i.e. to carry out the purposes of the Act. Consequently, when the rule- making authority specifies conditions and diseases in the schedule it exercises the same delegated authority as it does when it fi^eicises power under sub-section (1) and makes other rules and therefore it is delegated legislation. The question for decision then is, is the delegation constitutional in that the administrative authority has been supplied with proper guidance. In our view the words impugned are vague. Parliament has established no criteria, no standards and has not prescribed any prixiciple on which a particular disease or condition is to be specified in the Schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in S. 3(d) must therefore be held to he going beyond permissible boundaries of vahd delegation. A s a consequence the Schedule and the rules must be struck down.,..

W e are o f the opinion therefore that the words "or any other disease or condition which may be specified in the rules made under this A c t ” confer uncanalised and uncontrolled power to the Executive and are therefore ultra vires. But their being taken out o f Cl. (d) o f S. 3 does not affect the constitutionality of the test of the clause or section as they are severable....


NOTES

1. Power to add to the schedule annexed to the A ct is usually given nowadays to the administratioji, The Prugs A ct, 1940,

empowers the Central Government to amend the hst of dangerous drugs enumerated in the schedule to the A ct. Section 4 of the Employees’ Provident Fund A ct empowers the Central Government by notification in the official gazette, to add any industry to Schedule I in respect of which it is of opinion that a provident fund scheme should be framed under the A ct.

The justification for the power is given by Allen as fo llow s ;

“ There can be no serious objection to a power vested in departmental experts—who, of course, act on technical advice— to alter from time to time the list of poisons, therapeutic substances, fertilisers and feeding stuffs, ancient monuments, or whatever it may be, which fall within the appropriate statutes, provided that they are ejusdem generis with the other things which the statute is clearly intended to cover.But see the Hamdard Dawakhma:'' case. D o you think that the

ruling in this case is consistent with other cases in this class?

( c) Power to grant exemption

The question of validity of the power given to the Government to grant exemption from the operation of an A ct has been considered by the High Courts in a number of cases :

In Globe Theatres Ltd. v. Slate of Madras '' , the Madras High Court held valid section 13 of the Madras Buildings (Lease and Rent Control) A ct, 1949, which granted to the State Government power “to exempt any building or class of buildings from all or any of the provisions of this Act."®^

In Sheo Shankar v. M.P. State Government ' the following exemption provision was considered:

“The Provincial government may, by notification either wholly or partially and subject to such conditions as it may think fit to impose, exempt any person or class of persons from all or any o f the provisions of this Act, or of all or any of the rules made under this Act, either throughout the province or in any specified area, or for any specified

58. Allen, Law and Orders 195 (2d. ed. 1956),59. Supra.60. A. I. R, 1954 Mad. 690.61. The provision was challenged under article 14 of the Constitution also but

the argument was rejected. The judgment was confirmed by the Supreme Court in P. J. Irani v. State of Madras, A. I. R. 1961 S. C. 1761.

62. A, I. R, 1951 Na^. 58,


period or occasion.” The High Court upheld the power delegated on the basis that it amounted only to conditional legislation.'^

“The State Government may direct that all or any of the provisions of this A ct shall not apply to any particular building or rented land or any class o f buildings or rented lands.” The provision was challenged®^ on the ground that the power o f exemption was uncanalised and no guidance was afforded for its exercise in the A ct. The Punjab High Court held the provision valid treating it as a conditional legislation and not delegated legislation. It observed, “ that delegation of power to the Government to determine the time as to when the statute should apply, the person or persons to whom it is to apply has never been held to be void because it has always been treated as conditional legislation, and not delegated legislation,” In principle, the court saw no difference between the grant o f this type of power and the power under the impugned section. It was pointed out further that if the entire scheme of the A ct is examined, it will be seen that the, purpose o f exemption clause is apparent and it furnishes sufficient guidance for the exercise of the exemption power.


MOHMEDALLI v. UNION OF INDIA A.I.R. 1964 S. C 980.

[The case involved both kinds of provisions namely the power to add to the schedule and also to grant exemption. Section 5 of the Employees’ Provident Fund A ct, 1952 authorises the Central Government to frame the Employees’ Provident Fund Scheme for the establishment o f provident funds under the A ct for employees or any class o f employees and establishments or class o f establishment to which the scheme may be applied, by notification in the Official Gazette. The contribution o f the employer to the fund is to be 6i per cent o f the basic wages and dearness allowance and retaining allowance if any, and the employee's contribution is to be equal to the employer’s contribution, subject to this being raised to the maximum of 8 1/3 per cent, if the employee so desires and the scheme so provides. Dearness allowance for the purposes o f contribution shall be deemed to include also the cash value o f any food concession allowed to the employee. Section 7 authorises the Central

63, This decision was followed by the Madhya Pradesh High Court in L. N. Waklarev, State. AJ.R. 1959 M. P. 208.

64, Sadhu Singh v. Distt, Board, AJ.R, 1962 Puiy, 207,

Governinent to add to, amend or vary any food concession allowed to the employee. Section 7 authorises the Central Government to add to, amend or vary any scheme framed under the A ct.

Section 1 (3) of the A ct lays down the following general rule regarding the applicability of the A c t :

“ Subject to the provisions contained in section 16, it appUes—

(a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed, and

(b) to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that the Central Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this A ct to any establishment employing such number of persons less than twenty as may be specified in the notification.”

Section 16 provides that the A ct shall not apply to any establishment registered under the Co-operative Societies A ct, 1912, or to any other establishment employing fifty or more persons or twenty or more but less than fifty persons until the expiry o f three years in the case o f the former and five years in the case of the latter from the date on v/hich the establishmet is set up.

The term “industry” used in the sub-section, quoted above, is defined in section 2(1), as follows ;

“ ‘ industry’ means any industry specified in Schedule I, andincludes any other industry added to the Schedule by notificationunder section 4."

By section 4, the Central Government has been authorised to add to the Schedule any other industry in respect of the employees whereof it is of opinion that a provident fund scheme should be framed under the A ct, and when such a notification is issued, the industry so added shall be deemed to be an industry specified in the Schedule. By way of exception to that general rule, the appropriate

■government has been authorised by section 17 to exempt from the operation of all or any of the provisions of any scheme framed under the A ct, The relevant provisions of section 17 are in these w ords;


“ 17, Pow er to exempt— (1) The appropriate Government may, by notification in the Official Gazette, and subject to such conditions as may be specified in the notification, exempt from the operation of all or any of the provisions of any Scheme— (a) any establishment to which this A ct applies if, in the opinion of the appropriate Government, the rules o f its provident fund with respect to the rates o f contribution are not less favourable than those specified in S. 6 and the employees are also in enjoyment of other provident fund benefits which on the whole are not less favourable to the employees than the benefits provided under this A ct or any Scheme in relation to the employees in any other establishment of a similar character; or

(c ) any establishment if the employees o f such establishment are in enjoyment of benefits in the nature of provident fund, pension or gratuity and the appropriate Government is of opinion that such benefits, separately ot: jointly are on the whole not less favourable to such employees than the benefits provided under this A ct or any scheme in relation to employees in any other establishment of a similar character."

Section l (3 ) (b ) of the A ct was challenged on the ground that it confers uncontrolled and uncanalised power on the Government.]

Sinha C. J.;

The Supreme Court rejected the contention. It cannot be asserted that the powers entrusted to the Central Government to bring within the purview of the A ct such estabhshments or class of establishments as the Government may by notification in the Official Gazette specify is uncontrolled and uncanalised. The whole A ct is directed to institute provident funds for the benefit o f employees in factories and other establishments, as the Preamble indicates. The institution o f provident fund for employees is too well-established to admit of any doubt about its utility as a measure of social justice. The underlying idea behind the provisions of the A ct is to bring all kinds o f employees within its fold as and when the Central Government might think fit, after reviewing the circumstances of each class of establishments. Schedule I to the A ct contains a list of large variety of industries engaged in the manufacture o f diverse commodities, mentioned therein. T o all establishments which are factories engaged in the industries enumerated in Schedule I, the A ct has been made applicable of its own force, subject to the provisions of section 16, which has indicated the esta^slishments to which the


A ct shall not apply. The Schedule is liable to be added to or modified so as to include other categories of industries not already included in Schedule I. So far as establishments which do not come within description o f factories engaged in industries, the Central Government has been vested with the power of specifying such establishments or class of establishments, as it might determine? to be brought within the purview of the Act. The A ct has given sufficient indication o f the policy underlying its provisions, namely, that it shall apply to all factories engaged in any kind of industry and to all other estabHshments employing 20 or more persons. This court has repeatedly laid it down that where the discretion to apply the provisions of a particular statute is left with Government, it will be presumed that the discretion so vested in such a high authority will not be abused. The Government is in a position to have all the relevant and necessary information in relation to each kind of establishment enabling it to determine which of such establishment can bear the additional burden of making contribution by way of provident fund for the benefit of its employees- The power to exempt given to the appropriate Government under section 17 is not uncanalised because both clauses (a) and (b) of that section postulate that the exemption would be granted on the ground that the employees of those establishments are already in the enjoyment of benefits in the nature of provident fund, pension or gratuity not less favourable to them than under the A ct...

It would appear from the terms of the relevant portion o f S. 17 that the exemption to be granted by the appropriate Government is not in the nature of completely absolving the establishment from all liability to provide the facilities contemplated by the A ct. The exemptions are to be granted by the appropriate Government only if in its opinion the exempted establishment has provisions made for provident fund, in terms at least equal to, if not more favourable to its employees. In other words, the exemption is with a view to avoiding duplication and permitting the employees concerned the benefit of the pre-existing scheme, which presumably has been working satisfactorily, so that the exemption is not meant to deprive the employees concerned of the benefit of a provident fund but to ensure to them the continuance of the benefit which at least is not in terms less favourable to them. As the whole scheme of provident fund is intended for the benefit of employees, section 17 only saves pre-existing schemes of provident fund pertaining to particular establishments. Hence, the provisions of sub-section (3) of section 1, read along with


those of section 17, quoted above, cannot be said to have conferred uncontrolled and uncanalised power on the appropriate Government. ...It is clear that the last mentioned case (Hamdard Dawakhana) illustrates the rule that the question whether or not a particular piece of legislation suffers from the vice of excessive delegation must be determined with reference to the facts and circumstances in the background of which the provisions o f the statute impugned had been enacted. If, on a review of all the facts and circumstances and of the relevant provisions of the statute, the Court is in a position to say that the Legislature had clearly indicated the underlying principle of the legislation and laid down criteria and proper standards but had left the application o f those principles and standards to individual cases in the hands o f the executive, it cannot be said that there was excessive delegation o f powers by the Legislature. On the other hand, if a review of all those facts and circumstances and the provisions of the statute, including the Preamble, leaves the Court guessing as to the principles and standards, then the delegate has been entrusted not with the mere function of applying the law to individual cases, but with a substantial portion of legislative power itself. Applying those principles which are now well-established by quite a number of decisions of this Court, can it be said in the instant case that the Legislature had indicated clearly the principles underlying the legislation and the standards to be applied ? In our opinion, the answer must be an emphatic “ N o” .


(d) Power to amend the statute

BANARSI DAS v, STATE OF M.P.

A, I. R. 1958 S.C. 909

[Section 6 o f the Central Provinces and Berar Sales Tax A ct, 1947, ran as follows :—

6 (1) ‘ ‘N o tax shall be payable under this A ct on the sale of goods specified in the second column of Schedule II, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof.

(2) The State Government may, after giving by notification not less than one month’s notice o f their intention so to do, by a notification after the expiry o f the period of notice mentioned in the

first notification amend either Schedule and thereupon such Schedule shall be deemed to be amended accordingly.'’

Item 33 in Schedule II ran as : “ Goods sold to or by the State Government.” Under section 6(2), the State Govt, issued a notification on September 18, 1950 substituting for the above words in item 33 the vyords “ Goods sold by the State Government. The resultant position was that the appellant who was entitled to exemption under the A ct, in respect o f goods sold to the Government, could no longer claim it by reason of the notification in question. H e therefore challenged the validity of the notification on the ground that it was not open to the Government in exercise of the authority delegated to it under Section 6(2) of the A ct to modify or alter what the Legislature had enacted.]

Venkatarama Aiyar,

W e have next to consider the contention that the notification dated 18-9-1950 is bad as constituting an unconstitutional delegation , of legislative power....M r. Chatterjee appearing for the appellant contends that the notification in question is ultra vires, because it is a matter of policy whether exemption should be granted under the A ct or not, and a decision on that question must be taken only by the Legislature, and cannot be left to the determination o f an outside authority. W hile a power to execute a law, ic was argued, could be delegated to the executive, the power to make it must be exercised by the Legislature itself.... It was also contended that the grant of a power to an outside authority to repeal or modify a provision in a statute passed by the Legislature was unconstitutional, and that, in consequence, the impugned notification was bad in that, in reversal of the p # c y laid down by the Legislature in A ct N o. X V I of 1949 that sales to Government should be excluded from the operation of the A ct, it withdrew the exemption which had been granted thereunder.... [T]he point for determination is whether the impugned notification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy. N ow ,' the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working o f taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect o f diffetent classes of goods, and the like.

/ « jPoive// V. Apyollo Candle Company Limited (1885) 10 A .C . 282 the question arose as to whether S. 133 of the Customs Regulation

264 INDIAN ADMINISTRATIVE LAW [CHAPTER 4.

A ct of 1879 o f N ew South W ales which conferred a power on the Governor to impose tax on certain articles o f import was an unconstitutional delegation of legislative powers. In holding that it was not, the Privy Council observed :

“ It is argued that the tax in question has been imposed by the Governor and not by the Legislature who alone had power to impose it. But the duties levied under the Order-in-Council are really levied by the authority of the A ct under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, o f course, at any moment, of withdrawing or altering the power, which they have entpsted to him. In these circumstances, their Lordships are of opinion that the judgement o f the Supreme Court was wrong in declaring “S. 133 of the Customs Regulation A ct of 1879 to be beyond the power of the Legislature.”

In Syed Mohamed and Co. v. The State o f Madras, A.I.R. 1953 Mad. 105, the question was as to the vires of Rr. 4 and 16 framed under the Madras General Sales Tax A ct. Section 5 (vi) of that A ct had left it to the rule-making authority to dete®|^e at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, Rules 4 and 16 had ^ ^yided that it was the purchaser who was liable to pay the tax in respect o f sales of hides and skins. The validity o f the Rules was attacked on the ground that it was only the Legislature that was competent to decide who shall be taxed and that the determination o f that question by the rule-making authorities was ultra vires. The Madras High Court rejected this contention, and held on a review of the authorities that the delegation o f authority under S. 5 (vi) was within p^ aissib le Constitutional limits.

In Hampton Jr, & Co. v- United States [279 U.S. 394 (1928) the question arose whether S. 315(b) of the TarijSf A ct, 1922 uril.er which the President had been empowered to make such increases and decreases in the rates o f duty as were found necessary for carrying out the policies declared in the statute was an uncoi^titutional delegation and the decision , was that such delegation was not unconstitutional. W e are therefore o f the opinion that the power conferred on the State Government by S. 6(2) to amend the Schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional.


The contention of the appellant that the notification in question is ultra vires must, in our opinion, fail on another ground. The basic assumption on which the argument o f the appellant proceeds is that the power to amend the schedule conferred on the Government under S.6(2) is wholly independent of the grant of exemption under S. 6(1) of the A ct, and that, in consequence, while an exemption under S. 6(1) would stand, an amendment thereof by a notification under S. 6(2) might be bad. But that, in our opinion, is not the correct interpretation of the section. The two sub-sections together form integral parts of a single enactment, the object o f which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government. Sectian^’6 (1), therefore, cannot have an operation independent of S. 6(2), and an exemption granted thereunder is conditional and subject to any modification that might be issued under S. 6(2), In this view, the impugned notification is wtra vires and not open to challenge.


R A fflA B A IN SINGH v. CHAIRMAN, P. A. COMMITTEEA. I. R. 1954 S. C. 569

[The, appellant was the Secretary of the Rate Payers’ Association at Patna." H e and the other members of his Association resided in the Patna village which was originally outside the municipal limits of Patna and so was exempt from municipal taxation. The A ct creating municipal institutions in the State is the Patna Administration A ct of 1915 Bihar and Orissa Municipal A ct of 1915.

notification April 18, 1951, the Patna village was brought withitt'^lnunicipal limits, and was subjected to municipal taxation. Section 3 (l) ( f ) of the Patna Administration Act, under which the notification was issued, empowered the State Government to “ extend to Patna:^he provisions of any section” of the Bengal Municipal A ct, 1834, “ subject to such restrictions and modifications as the Government may think fit” . On April 23, 1951, the Government issued a Notification picking out section 104 of the Bihar and Orissa Municipal Act, 1922, which repealed the Bengal Municipal A ct of 1884, and extending it in a modified form to the Patna village, so as to vary a tax on holdings, latrines or water without observing the formahties imposed by sections 4, 5 and 6 of the Bihar and Orissa Municipal Act.

The question arose whether the Notification dated April 23, 1951 was beyond section (3 )(l) (f ) and whether section 3 (l)( f ) was itself ultra vires. J

Bose J.:

In our opinion, the majority view [In /‘e DeJhiLaws Act'] was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in the general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinion set out above, it cannot include a change o f policy.,..

The A ct of 1922 applied to the whole of Bihar.., and o'ne of its essential features is that no municipality competent to tax stiall be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duty imposed by the A ct in mandatory terms to listen to the objections and take them into consideration before reaching a decision.

In our opinion, this is a matter of policy imposed' by the legislature and embodied in Section 4, 5 and 6 of the Act. W e are not able to brush this aside as negligible and it 'S^flhot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the legislature’s solemnly expressed mandate. To do so would be to change the policy of the law and that the majority in ‘The Delhi Laws Act' case say cannot be done by a delegated authority..,.

Now what exactly does Section 3 (l)( f ) authorise doestwo things : first, it empowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal A ct of 1922 and extend it to ‘‘Patna” ; and second, it empowers.. (th^GBvernor) to apply it with such “ restrictions and modifications” as h^ihinks fit.

In {The Delhi Laws Act Casej, the following provision was held to be good by a majority of four to three ;

“ The Provincial Government may... extend with such restrictions and modifications as it thinks fit... any enactment which is in force in any part of British India at the date of such notification.!';;;

Now the only difference between that case and this i that whereas in the former case the whole of any enactment, or a part of


it, could be extended, here, any section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an A ct can be extended, it follows that a section or sections can be picked out and applied, as in —'Burah's case’ where just that was done; also, for the same reason that the whole or a part of an A ct can be modified, it follows that a section can also be modified.

But even as the modification of the whole cannot be permitted to effect any essential change in the A ct or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. If that were not so, the law, as laid down in the previous decision, could be'ilvaded by picking out parts of an A ct only, with or without modification in such a way as to effect an essential change in the A ct as a whole. It'follows that when a section of an A ct is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the A ct regarded as a whole. Subject to that limitation we hold that section 3 (l ) ( f ) is “ intra vires’ ' that is to say, we hold that any section or sections of the Bihar Orissa Municipal A ct o f 1922 can be picked' ^iiife^|)lied to “ Patna” provided that does not effect any essential ctiange in'the A ct or alter its policy.

The Notification of 23.4.1951 does, in our opinion, effect a radical change in the policy of the A ct. Thererefore, it travels beyond the authority which, in cur judgment, section 3 ( l ) ( f ) confers and consequently it is ‘ultra vires’.


NOTES

l.^^^ection 7 of the Bombay Tenancy and Agricultural Lands A ct,1948, runs as follows: “Notwithstanding anything contained in Ss. 5 and 6, it sllall be lawful for the State Government, if it is satisfied that it is expedient so to do in the public interest to vary, by notification in the Official Gazette, the acreage of the ceiling area o f economic holding, or the basis of determination of such ceiHng area or economic holding, under sub-s. (2) of S. 5, regard being had to —

(a) the situation of the land,(b ) its productive capacity,(c ) the fact that the land is located in a backward area, and(d) any other factors which may be prescribed.”

This provision was challenged on the ground o f excessive delegation of legislative power. It was argued that it fixed no criteria for the guidance of the State Government whose power to vary the ceiling area and econom ic holding was unguided and unfettered which could possibly be exercised at its sweet will and discretion even in favour of a single individual. It was urged that no broad principle or policy was enunciated by the Legislature and it would be open to the State Government to exercise this power arbitrarily and even in a discriminatory manner. Rejecting the argument, Bhagwati, J. stated :

“ If the Legislature settles the policy and the broad principle of legislation, there is no bar against leaving the matters of detail to be fixed by the executive and such delegation will not amount to excessive delegation of legislative power such as to vitiate the enactment. In the case before us the preamble to the A ct says what the policy o f the impugned A ct is, v/2., further to amend the 1948 A ct which sets out specific objectives to be achieved. Sections 5 and 6 prescribe the area and the economic holding which are fixed by the Legislature itself having regard to the normal conditions then prevailing within the State, The legislature knew what were the different types of land, their situation and productive capacity and having regard to all the relevant factors determined the ceiling area as also the economic holding. There were, however, ,^ound to be differences between district and district and one part of the State and another and having, therefore, enunciated the broad principles and policy which were embodied in Ss. 5 and 6 o f the A ct the Legislature enacted S 7, empowering the State Government to vary the ceiling area and the econom ic holding if it was satisfied that it was expedient so to do in the public interest.... In our opinion, the broad principles and policy have been laid down by the legislature, the criteria have been fixed according to which the State Go'^rnm ent has to be satisfied that it is expedient to, vary the ceiling area and economic holding already prescribed by the legislature and the mere matter of working out the details having regard to those criteria which are specifically mentioned therein which has been delegated to the State Government does not amount to any excessive delegation of legislative pow er.” Shri Ram Narain v. State o f Bombay^ A.LR. 1959 S .a 4 5 9

2. Section 4(1) o f the Orissa Municipal A ct, 1950, empowered the State Government to constitute an area into a Municipality. Before doing so, the Government was required to issue a preliminary ngtificatioa calling for objections fropa th? inhabitants and


consideration o£ objections, if any. Chapter X X X -A consisting of sections 417-A, 417-B and 417-C provided for constitution of notified area committees and conferred powers on the State Government to apply or adapt to a notified area any of the provisions of the Orissa Municipal Act. Purporting to act in exercise of the powers conferred by section 417-B, the Government of Orissa by the impugned notification applied some of the sections of the Orissa Municipal A ct to the'Beyarani Notified Area setting up a nominated committee to administer the area and completely omitting sections 4 and 5 of the Orissa Municipal A ct.

The complete omission of section 4 in the impugned notification deprived the residents of the locality of the opportunity of being heard before being brought under municipal taxation, and so the notification was challenged as amounting to excessive delegation. It was argued that the right of the inhabitants of a specified area to be heard before they are subjected to taxation is a very valuable right safeguarded by section 4 of the Orissa Municipal Act, and the power conferred on the State Government by section 417-B of that A ct to apply or adapt to a notified area some of the sections of the A ct should be so construed as not to include the power to omit section 4 altogether. Reliance was placed on Rajmrain Singh v. Chairman, Patna Administration Committee, A.I.R. 1954 S.C. 569.

The High Court in Dandapani v. State o f Orissa ' negatived the contention, saying : “ Though there are many similarities between the aforesaid Supreme Court case and the instant case, there is one important distinguishing feature. S. 417-B of the Orissa Municipal A ct does not confer power on the State Government to extend to a notified area any of the provisions of the Orissa Municipal A ct “ subject to such restrictions and modifications as the Government may think fit” ; as was conferred by S.3(l)(f) of the Patna Administration Act, 1915. In fact, here the State Government have no right to modify or restrict any section of the Orissa Municipal A ct while extending it to a notified area. The only power conferred on them is the power of adaptation which is limited to the making of formal and verbal changes in the A ct so as to make it applicable to the new administrative set-up in that area. Under the guise of adaptation no authoritycan make any essential change in the Act, nor alteration in the policy,...

A ll that the Orissa Legislature did by section 4L7-B of the Orissa Municipal A ct was to authorise the State Government to pick and


65. A. I. R. 1962 Orissa 17.

clioose some of the sections of the A ct which they considered to be suitable for application in a small notified area which is otherwise not fit to be constituted into a M unicipality....

Section 417-B of the Orissa Municipal A ct cannot be held to be ultra vires in any view of the case because it gives lesser powers to the Government than S. 3 ( l ) ( f ) of the Patna Administration A ct which was held to be intra vires by their Lordships of the Supreme Court. The impugned notification is undoubtedly within the scope o fS, 417-B and even if it does not provide for giving the inhabitants ol a notified area the right to be heard before they are brought under the central or Municipal administration, that must be held to be the result of the declaration of policy by the Legislature itself. It is always open to the Legislature whose powers are undoubtedly plenary, to say that in a particular area all the provisions of the Orissa Municipal A ct need not be applied and that a simplified form of municipal administration is desirable in the interest of efficiency. Having thus declared their policy, the Legislature may leave it to the State Government to pick and choose these provisions o f the A ct which should be applied to the area, bearing in mind the policy mentioned above. This is exactly what the State Government have done in the impugned notification.”

The High Court in the above case, on the one hand, has held that what is involved here is the power o f adaptation which is much narrower than the pow er to modify which was involved in the Rajnarain case, but, on the other hand, has held the notification valid even though the residents were not given a right of hearing. If under the pow er to modify, the Government was not allowed to change the policy of the A ct (viz, the right of the inhabitants to be heard,) in the Rajnarain case how is it that under narrower power o f adaptation the government could do so ?

(e) Removal o f Difficulties.

A t times, the legislature confers power on the delegate to amend the parent . A ct or any other A ct with a view to bring the parent A ct into full operation. Its widest extension is to empower to delegate, ‘if any difficulty arises in bringing the A ct into operation to remove the difficulty by order.’ Section 6 o f the Jammu and Kashmir (Extension o f Laws) A ct, 1956, reads as :

"If any difficulty arises in giving effect to the provisions o f anyA ct or ordinance now extended to the State of Jammu and

66. Rajnarain's case, supra.


Kashmir, the Central Government may, by order notified in the official gazette, make such provisions or give such directions as appear to it necessary for the removal o f the difficulty,’'

In this provision, the Executive could even amend the parent Act, if necessary. A somewhat modest variant is the provision where power is given to the Executive to amend any A ct, other than the parent Act. To take one example, section 23 of the Personal Injuries (Compensation Insurance) A ct, 1963, says ;

“ If any difficulty arises in giving effect to the provisions of this A ct, and in particular, if any doubt arises as to whether any compensation is payable under this A ct or as to the amount thereof, the Central Government may, be order, make such provision or give such direction, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for the removal of the doubt or difficulty; and the decision of the Central Government, in such cases shall be final.” ®’

This kind of delegating clause has acquired the nick-name of Henry VIII clause, as personifying “executive autocracy” . The Committee on Ministers’ Powers commenting on this clause has said that the sole purpose of Parliament in enacting such a provision is “ to enable minor adjustments of its own handiwork to be made for the purpose of fitting its principles into the fabric of existing legislation, general or local” .*’® However, the committee has criticised the use of this device because it is inconsistent with principles of parHamentary government that the subordinate law-making authority should be given power to amend the statutes passed by the superior authority and that such a power in theory at any rate may be unscrupulously used. Further, it has stated that such a clause “ is a standing temptation to ministers and their subordinates either to be slipshod in the preparatory work before the Bill is introduced in Parliament or to attempt to seize for their own Departments the authority which properly belongs to ParHament’ '.® The Committee therefore suggested that the Henry VIII clause should be avoided "unless demonstrably essential’ ' for the limited purpose of bringing an A ct into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally

67. See also The Emergency Risks (Goods Insurance) Act, 1962, § 17; The Customs Act, 1962; The Government of Union Territories Act, 1963, § 56.

68. Committee on Ministers' Powers Report, 1932, at 36, m. W.at6l,


requisite for that purpose; and the clause should always contain a maximum time limit of one year after which the powers should lapse.

A ccording to Griffith and Street,'^ the practice of “ statutes giving the power to make regulations which may amend enactments is common and, indeed, inevitable.”

Students may analyse the Indian statute book for a year to identify the “ Henry V III clause” in the statutes and also analyse what use has been made of this provision. A re the modifications effected generally o f a mere technical nature or o f substance ? The overall question would still be that the modifications effected in the statutes as a result of this provision cannot change the policy underlying the legislation.

Reference may also be made here to the Bagla case in which the Supreme Court held valid a statutory provision making executive- promulgated orders effective even if inconsistent with any legislature enactment. N ote section 43 o f the Defence o f India A ct, 1962 which reads a s :

“ The provision of this A ct or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this A ct or in any instrument having effect by virtue of any enactment other than this A c t .”


SECTION 5. ADMINISTRATIVE QUASI-LEGISLATION

WADE AND PHILIPS, CONSTITUTIONAL LAW585 (1960)

A developm ent is the growth o f what has been described as “ administrative quasi-legislation.’” ® Government departments have adopted the practice of issuing pronouncements stating the ofifieial point of view on doubtful points in statutes, or, annGunciiiig

70. Ibid.71. Principles o f Administrative Law Qd td. \96T),72. See also Megarry, “ Administrative Quasi-Legislation” 60 i . Q. i?ev. 1125-29

concessions that will be made in the application of statutes to individual cases. In 1944 the Chancellor of the Exchequer presented to Parliament a twenty-page list o f extra-statutory war-time concessions given in the administration of inland revenue duties. The Finance A cts remain on the statute book, but certain provisions cease to represent the law as appUed in practice. Sometimes arrangements made administratively affect the rights of one subject against another. Thus under section 29 of the now repealed W orkm en’s Compensation A ct, 1925, it was a defence to a claim by a workman for damages at common law that he had accepted compensation under the A ct. In 1942, the Home Secretary announced in the House of Commons that employers’ organisations and insurance interests generally had agreed not to raise this defence, provided that proceedings were started within three months of the accident. As a result the necessity for remedial legislation was avoided. Thus without any change being made in the law a substantial change was made in the advice which solicitor should give his client. It is at least essential that there should be some systematic publication of administrative notifications.


STATE OF ASSAM v. AJIT KUMAR SHARMA A.I.R. 1965 S.C. 1196

[The material facts of the case appear in the judgment.]

Wanchoo, J :

This is an appeal by special leave against the judgment of the Assam High Court. Shri A jit Kumar Sharma (hereinafter referred to as the respondent) is a teacher in the Handique Girls College (hereinafter referred to as the College) at Gauhati. H e filed a writ petition in the High Court on the following averments. This is a private college teaching up to B.A. standard and affiliated to the Gauhati University established under the Gauhati University Act, N o. 16 of 1947 (hereinafter referred to as the A ct). The College is managed by a Governing Body according to the provisions of the Statute for the management of private colleges framed by the Gauhati University under S. 21(g) of the Act. Under 8.23(h) of the A ct, the Executive Council may frame Ordinance to provide for the emoluments and conditions o f service o f teachers o f the University, including teachers in private colleges. The University has in purstiauce of the powers so conferred on it framed rules for the grant

of leave to teachers of private colleges which are binding on the Governing Bodies o f such colleges, and had actually been adopted by the Governing Body o f the College in July, 1956 for its teachers. Under these rules the Governing Body of the College cannot com pel a teacher to take leave without pay.

The College receives grant-in-aid from the State o f Assam and there are certain conditions for giving grant-in-aid. These conditions do not provide for withdrawal of the grant-in-aid if a private college fails to put a teacher who seeks election to a legislative or local body on compulsory leave without pay from the date of the filing of nomination till the end of the next academic session or till expiry of the term o f the office to which the teacher is elected.

The respondent as already stated is a teacher in the College. H e applied for leave with pay from January 2, 1962 to March 5, 1962 in order to contest a seat for Parliament. This leave was granted to him by the Governing Body of the College by resolution N o. 1 of March 9,1962. The respondent stood for election and was defeated. He thereupon applied that he be permitted to rejoin his duties from March 6, 1962 and the Governing Body permitted him to do so by its resolution N o. 2 dated M arch 9,1962. H e therefore worked as such from March 7, 1962. On M arch 20, 1962, the Director o f Public Instruction, Assam (hereinafter referred to as the D irector) wrote a letter to the Principal and Secretary of the College with reference to the letter of March 10,1962 from the College in which apparently the Director has been informed of the leave granted to the respondent and certain other teachers in connection with elections to Parliament and Assam Legislative Assembly. In this letter, the Director informed the College that he was unable to approve the resolution o f the Governing Body permitting the respondent and certain other teachers to join their duties “immediately” . The letter pointed out that such permission was in contravention o f r. 7 of the Rules regarding the Conduct and Discipline of the Employees of A ided Educational Institutions (hereinafter referred to as the Rules) and could not therefore be approved. The Director also added that the Rules had been framed in 1960 after due consultation with the University and the Assam College Teachers’ Association. On receipt o f this letter, the Governing Body seems to have reconsidered the matter of leave to the respondent, and passed a resolution on April 4,1962. This letter along with another letter was considered by the Governing Body of the College, and it was resolved in view of these letters that the resolution of M arch 9,1962, permitting the


respondent to rejoin duties from March 6,1962 could not be given effect to. It was further resolved that the respondent and some other teachers be granted leave in accordance with the rules. This resolution of the Governing Body was conveyed to the respondent by the Principal o f the College by letter dated April 5, 1962 and he ■was told that he had been granted compulsory leave without pay till the end of the academic session in view of his standing for election in the last general elections.

The respondent thereupon filed the writ petition in the High Court out o f which the present appeal has arisen. His contention was that the Rules to which the Director has made reference had no statutory force and that he was entitled to leave under the Rules framed by the Gauhati University, which had been accepted by the College. H e also contended that the Rules not having the force of law did not affect the powers of the Governing Body of the College in the matter o f its functions. Consequently the second resolution of the Governing Body dated March 9, 1962 was proper and correct and the respondent was properly allowed to rejoin duty after the expiry of his leave on March 6, 1962. The Director had no authority to interfere with the second resolution o f the Governing Body dated March 9, 1962 and that resolution of this character passed by a Governing Body did not require the approval of the Director and would have effect by themselves. It was further contended that as the leave rules which govern the College did not give power to the Governing Body to put a teacher on compulsory leave without pay against his will and consent, the resolution of the Governing Body dated April 4, 1962 by which the respondent was put on leave without pay was of no effect and in any case the Governing Body should not have acted on the illegal direction of the Director. Finally it was urged that the Governing Body acted as it did on a threat contained in the letter from the Additional Director dated March 19,1962, in which it was said that the education department would not provide funds for salaries and allowances for any employee who had gone on leave in connection with elections in contravention of R. 7 of the Rules, and therefore the action of the Governing Body was bad and in any case the Director had no right to threaten the Governing Body in this way. The respondent therefore prayed for a writ in the nature o f certiorari/prohibition/ mandamus declaring r. 7 of the Rules as having no legal force and also as having no binding character on the Governing Body or the respondent, He further prayed that the resolution of the Governing

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Body dated April 4, 1962 be declared ultra vires, void and ineffective in law, and the D irector should be directed not to withhold the grant-in-aid to be given to the College on the failure o f the Governing Body to put the respondent on compulsory leave without pay.

Before we consider the reply of the State, we would like to give the genesis of the Rules. It appears that in February 1959 the State of Assam decided to grant additional grant-in-aid to private colleges to implement the recommendations of the University Grants Commission regarding scales o f pay and other emoluments to the teachers o f such colleges. Apparently these scales o f pay and other emoluments were advantageous to the teachers and meant an improvement on their pay and other emoluments which they were getting from before. It was futher decided that such grant-in-aid should be given to private colleges on condition that the college authorities agreed to abide by certain rules regulating the conditions of service o f their employees. Accordingly it was decided to frame rules in consultation with the University and Assam College Teachers’ Association. Further the views of the Governing Bodies of all private colleges were also invited on the draft rules. Among them, the Governing Body of the College was also consulted and it resolved on August 6,1960 that it agreed with the proposed rules contemplated by the Government to be framed as communicated to it. The Government also ascertained the views o f the Gauhati University and the Assam College Teachers’ Association and eventually the Rules were notified by notification dated M arch 9, 1961, published on March 29, 1961. Rule of the Rules, which is material for our purposes is in these terms:—

‘'A n employee desiring to seek' election to the Legislative Body or to hold office with any political organisation or local bodies shall be on compulsory leave without' pay from the date o£ the filing o f his nomination till the end of the next academic session or till the termination of the term' o f office to which he may be elected as the case may be. Such employee however shall not be allowed to retain lien on his post for' a period exceeding five years.”

The Rules therefore were framed in consultation with, tlie University and the Assam College 'Teachers’ Association, which presumably represents the teachers of all' private colleges. The Governing Body of the College was also consulted anci it accepted the rules to be promuglated. In this Governing Body the members o f the

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teaching staff of the College are well represented and it was after the concurrence of the University, the College Teachers’ Association and the Governing Body of the College in particular in which the teachers o f the College were well represented that the Rules were notified.

The case of the appellants was that considering the manner in which the Rules were framed they were binding on the College as well as on the teachers of the College and it was thereafter that the Government gave the revised grants to the College. It seems further that the case o f the appellants was that the Rules had statutory force in view of the amendment of the A ct by Assam A ct II of 1961 by which a proviso was added to S. 21(g) of the A ct whereby the Government was given pow er to make the necessary rules in consultation with the University in respect of government colleges and government aided colleges. There were certain other objections by the appellants, to which it is unnecessary to refer.

The Governing Body of the College was also made a party to the writ petition and it submitted a written statement. It supported the stand taken by the State, and in particular pointed out that the Governing Body in which the teaching staff of the College was well represented had accepted the Rules before they were notified. In consequence the Government had been giving grant-in-aid to the College in accordance with the recommendations o f the University Grants Commission by which the pay scales etc. o f the teachers had improved and the teachers had been receiving the pay and dearness allowance under this grant-in-aid. No representation was ever made by any member of the teaching staff when the Rules were under consideration and were notified that he would not be bound by the Rules. The teachers including the respondent having accepted the pay and dearness allowance under the scheme of grant-in-aid given by the State on terms and conditions laid down in the Rules, the respondent was stopped from challenging the Rules which were in the interest of the College and education in general. The Governing Body in particular was bound by the Rules having accepted them and the resolution of April 4, 1962 was not passed on account o f any threat by the Director.

The main question that was argued before High Court was whether the Rules in question had statutory force. Alternatively, it was argued that even if the Rules had no statutory force and were mere executive instructions for the purpose of grant-in-aid, the High Court should not issue a writ against the State or the Director interfering


with such administrative instruction issued by the Director. It was further urged that if the Rules were mere executive instruction, which had been accepted by the Governing Body of the College in which the teachers o f the College were well represented, they would be in nature o f contractual obligations which could not be enforced by the issue o f a writ under Art. 226.

The High Court first considered the question whether the Rules had statutory force and came to the conclusion that they would not be said to be issued under the proviso to S. 21(g) of the A ct on which reliance was placed and therefore did not have any statutory force. But the High Court further held that even if the Rules had no statutory force it was open to it to issue a mandamus under Art. 226 to the Director, who is a public authority, to refrain from giving effect to the Rules which had no statutory force. It therefore made a direction to the D irector not to give effect to his letter of March 20,1962.

The main question which falls for decision in this appeal is whether the High Court is right in issuing a writ of mandamus to the State through the Director directing it not to give effect to the letter of M arch 20, 1962. It has not been contended on behalf of the appellants that the Rules have no statutory force and are mere executive instructions given by the Government to private college.... It seems to us that the High Court was in error in granting a writ o f mandamus against the State through the Director once it found that the Rules had no statutory force and were mere administrative instructions for the purpose o f giving grant-in-aid to private colleges. W hat grants the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing the conditions of such grants by mere executive instructions which have not the force of statutory rules. In the present case the Rules have been framed in order to give revised grants to private colleges to enable them to give higher scales o f pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. The Rules have been held by the High Court to have no statutory force, and that is not disputed before us. In these circumstances it is clear that the Rules are mere executive instructions containing conditions on which grants would be made to private colleges to implement the recommendations of the University Grants Gpnjmission as to pay scales etc. o f teachers of private colleges. W here such conditions of

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grant~in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant-in-aid. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or conditions should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any directions laying down conditions for grant-in-aid. Further it is open to the Governing Body not to carry out any such instructions which is not based on rules having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being as in this case—merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or non-enforcement of the rules, even if indirectly there may be some effect on them because o f the grant-in-aid being withheld in whole or in part. Such mere administrative instructions even though called rules are only a matter between the Governing Body and in the State through the Director and cannot in our opinion form the basis of a petition for writ under Art. 226 by a teacher.

W e may in this connection refer to Mjs Raman and Raman v. State o f Madras, (A.I.R. 1959 S.C. 694) where this court had to

■ consider certain orders and directions issued under S.43A of the M otor Vehicles (Madras Amendment) A ct, 1948. The question arose whether the orders issued under S.43A had the status of law or not. This Court held that such orders did not have the status o f law regulating the rights o f parties and must partake of the character of administrative orders. ' It was further held that there could be no right arising out of mere executive instructions, much less a vested


right, and if such instructions were changed pending any appeal, there would be no change in the law pending the appeal so as to affect any vested right o f a party. That decision in our opinion governs the present case also, for it has been found by the High Court, and it is not disputed before us that the Rules are mere administrative instructions and have not the force o f law as statutory rules. They therefore confer no right on the teachers of private colleges which would entitle them to maintain a writ petition under A rt. 226 for the enforcement or non-enforcement of any provision of the Rules. The Rules being mere administrative instructions are matters between private colleges and the Government in the matter of grant-in-aid to such colleges, and no teacher of a college has any right under the Rules to ask either for their enforcement or for their non-enforcement. W e are therefore of opinion that the High Court was in error when it granted a writ against the State through the Director, by which the Director was asked not to give effect to its letter dated March 20, 1962, against the Governing Body of the College.

In the result we allow the appeal and set aside the order o f the High Court granting a writ against the State through the D irector....

Appeal allowed.

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DELEGATED LEGISLATION

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