GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES
ADMINISTRATIVE LAW CASE COMMENTARY
SUBMITTED BY :
UDAY RAJ DESWAL (01216503822)
STUDENT
BA.LLB. HONS. 4TH SEMESTER
SUBMITTED TO :
Ms. GURSHARAN KAUR
FACULTY OF ADMIN. LAW
USLLS , GGSIPU
RE DELHI LAWS ACT CASE
Abstract:
In observance of the transition towards a welfare state, there has been a notable augmentation in the
administrative responsibilities of the nation. Following independence, a significant degree of ambiguity
surrounded the delegation of legislative authority to the executive branch. To elucidate this matter, the
President, in accordance with Article 143 of the Constitution, sought adjudication from the highest
court, which subsequently delineated specific principles clarifying the delineation of powers. This Case
Analysis analyses the landmark judgement of 7 judges bench wherein every judge had a difference of
opinion.
Facts:
The crux of the issue delineates into two distinct periods: Status before constitution and after
constitution Status .
Before Constitution: Numerous judicial decisions, spanning from the Privy Council era to the
contemporary Supreme Court rulings, have addressed the intricacies of legislative delegation. This
discourse unfolds across three temporal paradigms: pre-independence, postindependence, and post-
constitutional eras.
In the pre-constitutional epoch, specifically prior to 1949 when the Privy Council served as the apex
appellate body for India, the question of the constitutionality of delegated legislative authority arose in
the case of Queen v Burrah. At issue was an enactment conferring certain powers upon the Lieutenant
Governor, notably the authority to bring the legislation into force, determine its applicability, and
extend its reach (Section 9). This legislation aimed to establish jurisdictional alterations in the Garo
Hills region, separating it from civil and criminal court jurisdictions while extending selected
provisions to the Khasi, Jaintia, and Naga Hills. Central to the dispute was whether vesting the
Lieutenant Governor with the power to extend the law constituted impermissible delegation. The Privy
Council, elucidating the nature of legislative authority vested in the Indian legislature vis-à-vis the
Calcutta High Court, affirmed that the Indian legislature possessed plenary legislative powers akin to
those of Parliament itself. It discerned that the legislature had exercised its discretion concerning
location, individuals, laws, and powers, with the role of the Governor being to effectuate such
legislation upon fulfillment of specified conditions. This concept, termed conditional legislation, was
validated by the court.
The question of the permissible scope of legislative authority assumed paramount importance in post-
independence India. Just prior to independence, the Federal Court, in Jatindra Nath v Province of Bihar,
articulated that delegated legislation in India was circumscribed by the bounds of conditional
legislation. The Provincial Government's authority, through notification, to extend the duration of the
Bihar Maintenance of Public Order Act 1948 was deemed non-delegable. The ensuing jurisprudential
confusion revolved around whether the Indian legislature should adhere to stringent constraints akin to
the American model, where delegation of unlimited power is impermissible, or adopt a more
permissive approach akin to the English system, which allows for extensive delegation. The matter was
left unresolved, with courts vested discretion to adopt either model owing to perceived affinities
between the legal frameworks of the United States, United Kingdom, and India.
Moreover, the Indian Constitution maintains silence on the question of legislative delegation,
precluding a definitive constitutional basis for resolving such matters.
After Constitution: To remove doubts regarding the validity of several laws which contained such
delegation, the president of India under article 143 of the Constitution asked the Court's opinion on the
three questions submitted for its consideration and report.
Issues:
The three questions are as follows:
1) Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what
particular or particulars or to what extent ultra vires the Legislature which passed the said Act?
Section 7 of the Delhi Laws Act, mentioned in the question, runs as follows: -
"The Provincial Government may, by notification in the official gazette, extend with such restrictions
and modifications as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in
force in any part of British India at the date of such notification."
2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in
what particular or particulars or to what extent ultra vires the Legislature which passed the said
Act?
Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows: -
"Extension of Enactments to Ajmer-Merwara. - The Central Government may, by notification in the
official gazette, extend to the Province of Ajmer-Merwara with such restrictions and modifications as it
thinks fit any enactment which is in force in any other Province at the date of such notification”
3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what
particular or particulars or to what extent ultra vires the Parliament?
Section 2 of the Part C States (Laws) Act, 1950, runs as follows: -
"Power to extend enactments to certain Part C States. - The Central Government may, by notification in
the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar
Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any
enactment which is in force in a part A State at the date of the notification and provision may be made
in any enactment so extended for the repeal or amendment of any corresponding law (other than a
Central Act) which is for the time being applicable to that Part C State”
Judgement:
Seven judges presided over the case providing us with 7 different opinions. The importance of the case
cannot be underestimated in as much as, on one hand it permitted delegated legislation while on the
other it demarcated the extent of such permissible delegation of power. The question was on the limits
to which legislature in India can delegate its legislative power.
There were two extremist views put forth by the counsels: M C Setalvad took the view that power of
delegation comes along with the power of legislation and the same does not result in abdication of the
powers. The other counsel took the view that there exists separation of powers in the country and India
follows delegates non potest delegare. Therefore, there is an implied prohibition on delegation of
power. As both the views were extremely extremist, the court took the middle view.
The Supreme Court took the following view, and the 7 opinions were based on the same:
Separation of power is not a part of Indian Constitution
> Indian parliament was never considered as an agent of anybody. Therefore, doctrine of delegates non
potest delegare is not applicable Parliament completely cannot abdicate itself by creating a parallel
authority
Only ancillary functions can be delegated
There is a limitation on delegation of power. The legislature cannot delegate its essential functions.
Essential function involves laying down the policy of the law and enacting that policy into binding rule
of conduct.
Based on these views, the Supreme court gave 7 different views. There was unity of outlook on two
points: firstly, keeping the exigencies of modern govt in view, Parliament and state legislatures must
delegate the power to deal with multiple problems prevailing in India, as it is impossible to expect them
to come with complete and comprehensive legislation on all subjects sought to be legislated on.
Secondly, since the legislature derives its power from the Constitution, excessive freedom like in the
case of British constitution cannot be granted and limitations are required.
Judges differed on the question as to what were the permissible limits within which the Indian
legislature could delegate its legislative powers. One view propounded that the legislature could
delegate to the extent to the limit it does not abdicate its own power and have control over the delegate:
that is, it must retain in its hands the ultimate control over the authority to be able to withdraw the
delegation whenever delegate did something wrong. Second view propounded that the legislature
cannot delegate its essential functions which comprised the formulation of policy etc. That meant the
legislature should lay down the standards or policy in the delegating Act and delegate may be left with
power to execute the policy.
Fazl Ali, J conclusions regarding the case was:
(1) The legislature must normally discharge its primary legislative function itself and not through
others.
(2) is ancillary to and necessary for the full and effective exercise of its power of legislation.
(3) It cannot abdicate its legislative functions and does not become a parallel legislature.
I. Power to Legislative Includes Power to Delegate
It was concurred upon that the intention that legislation should essentially be enacted by the Legislature
is manifested; the Legislature cannot retire and leave the task of law making to any other body or class
of bodies.
It was claimed by the Attorney General, M C Setalvad that Parliament could delegate because of the
legislative power carried with it is power to delegate which was reject out rightly by C.J Kania,
Mahajan and Mukherjee J.J opining that constitution has never per se warranted delegation powers at
any stage and agreed on the view that legislature can however, conditionally legislate. In doing so it
may, in addition, lay down conditions, or state facts which on being fulfilled or ascertained according
to the decision of another body or the execution authority, the legislation may become applicable to a
particular area. This was described as conditional legislation
Bose J, who was in favor of delegated legislation, also concurred with the opinion above.
However, Sastri and Das JJ agreed to the contention and differed from the other judges.
Their decision was based on the theory of Parliamentary sovereignty and observed that power to make
law comes along with the power to delegate.
This case was decided in 1951 and since then things have changed drastically. It is now judicially
conceded that power of delegation is a constituent element of legislative power; and the power resides
in the legislature.? This is near to what the attorney general had contended that time.
Section 7 of the Delhi Laws Act, 1912 and Section 2 of the Ajmer-Merwara Laws Act was held valid
by the court.
Critical Analysis: The majority is of the opinion that only non-essential functions, i.e. the power of
policy making accompanied with annexation of sanction can be delegated even if there is an explicit
mention allowing the delegation, while the minority stands firm on its decision that most functions can
be delegated, subject to the condition of non-abdication. It must be noticed here that the power of
abdication is in fact an essential legislative function. The majority has also expressed its view that the
Legislature cannot create a parallel authority with the same powers and functions that it now enjoys.
The case has been quoted as the “Bible of delegated legislation”. What it means that, it is considered
as a comprehensive document on delegated legislation which has clearly laid down the importance and
the necessity of delegation and at the same time indicates the safeguards necessary to ensure there is no
excessive delegation.
It is also to be noted that subsequent to this case, there was still some confusion in the air regarding the
limits of delegation. The first such cases which cleared the air was the Gwalior Rayon Silk
Manufacturing Co. v. Assistant Commissioner of Sales Tax. The “Standard test” or the “Principle
and policy” test was laid down by Khanna, J.
Conclusion: The case has been successful in achieving two ends: -
• It legitimized delegation of legislative power by the legislature to administrative organs;
• It imposed an outer limit on delegation by the legislature.
It is thus submitted that the legitimacy of delegation is no longer a question of dispute. The only issue
that arises is with respect to the limits imposed upon the delegation. Several years after the case at hand
it is safe to say that this is an ongoing process. As times change and as the needs of society change,
different limits will have to be cast upon delegation. The different controls will have to be made more
stringent and the leash shortened or let loose as the situation demands.
Finally, the present case has formed the foundation on which issues regarding the possibility and
extent of delegation of legislation have started to become unambiguous. It has laid down the
groundwork and has left it to the judicial system to carry forward this fundamental principle.
The case specifically lays down that the British or the American model cannot be implemented as such
in India. The Indian system, though it has borrowed extensively from other systems round the world,
deserves better. It is humbly submitted by this author that, the position in this case be regarded as the
“Indian model on Delegated Legislation” set forth for other countries to consider.
