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AND THE PART C STATES (LAWS) ACT, 1950
CASE ANALYSIS CONSTITUTIONAL GOVERNANCE - II TOWARDS PARTIAL FULFILMENT OF THE EVALUATION IN THE SUBJECT
NATIONAL LAW UNIVERSITY, JODHPUR 21ST FEBRUARY, 2013 WINTER SESSION (JANUARY – MAY 2013)
SUBMITTED BY: AABHAS KSHETARPAL ROLL NO.: 856 IV SEMESTER B.B.A. LL.B. (HONS.)
SUBMITTED TO: PROF. K.L. BHATIA SENIOR PROFESSOR FACULTY OF LAW NATIONAL LAW UNIVERSITY, JODHPUR
.................................... 1912......... Is Section 2 of the Part C States (Laws) Act............................... ANALYSIS OF THE VARIOUS OPINIONS WITH REGARDS THE CORE ISSUE ............ 8 i................................................ VI. ABSTRACT .................................... Was section 7 of the Delhi Laws Act..................... Was the Ajmer-Merwara (Extension of Laws) Act................................II TABLE OF CONTENTS I...................................... III..... 1947....................................... CONCLUSION ................... 13 NATIONAL LAW UNIVERSITY.... 11 REFERENCES AND BIBLIOGRAPHY .............................................................................................. then in what particular or particulars or to what extent? ... or any of the provisions thereof ultra vires and in what particular or particulars or to what extent was the same ultra vires the Legislature which passed the said Act? ................. 3 STATUS BEFORE THE CONSTITUTION ........... 9 Delegation of power to make modifications and alterations ............................................................................. 3 AFTER THE ADVENT OF THE CONSTITUTION: IN RE DELHI LAWS ACT CASE: ANALYSIS OF FACTS AND JUDGEMENT ................................... or any of the provisions thereof ultra vires? If so................................... 9 Repeal of Law .................. or any of the provisions thereof ultra vires and in what particular or particulars or to what extent was it ultra vires the Parliament? .................................................................................................................................................................................... iv....................... The Source of Power to Delegate. 1950.... v......... 5 B.......................... 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE ......... iii........... JODHPUR | 2 .............................................. 8 Ultima Thule: Limits of Delegation............. 6 V................................................................... 10 VII..... 6 VIEWS FROM THE BENCH . 10 Impact of the In Re: Delhi Laws Act Case .............. IV........................................................................................................ ii....IN RE: DELHI LAWS ACT.............. 3 INTRODUCTION................................ 5 C......................................... II.............................. 5 A...................
IN RE: DELHI LAWS ACT. ¶18 [Hereinafter “Srinivasan”]. It was at this time that the question of constitutionality of delegation of legislative power came before the same court in the case of Queen v Burah4. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE . INTRODUCTION Delegated legislation is one of the most inevitable parts of administration. After independence there were a lot of misperceptions regarding delegation of legislative power to the executive. S. JODHPUR | 3 . the function of the executive is administering the law enacted by legislature and in an ideal state the legislative power must be exclusively dealt by the legislature.3 iii. there has been increase in the administrative functions of the country. 1 2 NATIONAL LAW UNIVERSITY. STATUS BEFORE THE CONSTITUTION A multitude of decisions by Privy Council and Supreme Court deal with the model of delegated legislation. they have to perform certain legislative functions for a smooth functioning of the government. p. p 23.5 The foremost among which was the power to bring the Act in effect.2 But due to an increase in administrative functions and the subsequent shift towards the concept of a welfare state. Lectures on Administrative Law (3rd Edn. 39 [Hereinafter “Sathe”].. in this case. To clarify this. Lexis Nexis Butterworths). the president under Article 143 of the Constitution referred the matter to the apex court and it laid down certain guidelines clarifying the position.K... though the majority of judges concurred on the conclusion.P. 4 1878 3 AC 889 [Hereinafter “Burah”].1 Along with being most significant. at ¶2. 5 Id. According to the traditional theory. In the pre-constitution era. It may be noted here that. Administrative Law. v. (1987)1SCC658. determine what laws were to be applicable and power to extend the application of the B. Takwani. 3 C. (3rd Edn. it was one of the most debatable issues in India.K. ABSTRACT If we notice the evolution of the concept of a state in India. Sathe. The act in dispute gave extensive powers to the Lieutenant Governor. ii. This case analysis delves into this landmark judgment delivered by a 7 judge bench of the Supreme Court. State of Karnataka and Ors.. we can realize that due to the shift towards a welfare state.II i. Eastern Book Company). the Privy Council was the highest court of appeal from any Indian decision. Srinivasan and Ors. all of them had an inconsistent set of reasons for the arriving at the same.
at ¶66. supra note 4. at ¶69. the federal court. 12 Jatindra Nath v Province of Bihar. Just on the eve of independence. JODHPUR | 4 . powers and what the governor was required to do was to make it effective upon fulfilment of certain conditions. ¶17. 15 Id..14 The court held this power to be non-delegable. 11 See State of Kerala and Ors. Jaintia and Naga Hills in Garo Hills..7 The principal question before the court was whether giving the Lieutenant Governor power to extend the application of the law is delegation of power?8 Privy Council observed that Indian legislature is not an agent or delegate as against Calcutta High Court but was intended to have plenary powers of legislation. and of the same nature of the parliament itself. (2012)7SCC106. v..6 The Act was enacted to remove garo hills from the jurisdiction of civil and criminal courts and extend all or any provisions of the Act in Khasi.II Act. Act No. in Jatindra Nath12 . at ¶42. supra note 1. Mar Appraem Kuri Company Ltd.. person. at ¶73.13 It was held that the Provincial Government could not be allowed to extend the time for which the Bihar Maintenance of Public Order Act 1948 was to remain.16 The moot question was whether the legislature of Independent India should be restricted to the rules laid down in the abovementioned or should the legislature be given a greater degree of freedom to determine the extent of delegation? It was left open to the courts to follow either the model in the United States where the extent of delegation was to strictly defined or the one in the United Kingdom where the extent of delegation was considered a matter of policy and therefore the courts were not obliged §9. (1949) 2 FCR 595. 16 Srinivasan. at ¶20.15 This led to a lack clarity regarding the extent of delegated legislation. 8 Burah. 13 Id. at ¶22.9 It was observed that Indian legislature had exercised its judgment as to the place. and Anr. Preamble. of 1869. Act No.11 The question of permissible limits of legislative power became important in Independent India. 14 Id..10 This is called conditional legislation which was upheld by the court. 9 Id. law. XXII. had held that there could be no delegated legislation in India beyond conditional legislation. . 10 Id. XXII. of 1869. at ¶9. 6 7 NATIONAL LAW UNIVERSITY.IN RE: DELHI LAWS ACT. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE .
Id. by notification in the official gazette.IN RE: DELHI LAWS ACT. 6th ed. JODHPUR | 5 . any enactment which is in force in any part of British India at the date of such notification. or any of the provisions thereof ultra vires? If so. Delhi Laws Act. supra note 1. Was section 7 of the Delhi Laws Act.. Indian constitution is silent on the issue whether legislature can delegate or not and hence. Principles of Administrative Law (LexisNexis Butterworth’s. by notification in the official gazette. pp. This was held valid by the majority but citing different reasons. extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof. B. the president of India under Article 143 of the Constitution invoked the Supreme Court's advisory jurisdiction seeking opinion on three questions submitted for its consideration and report. 49-54. 20 §7."20 This Act delegated to the Provincial Government the power to extend to Delhi area with such restrictions and modification any law in force in any part of British India. Was the Ajmer-Merwara (Extension of Laws) Act.The Central Government may. Reprint 2011). 1947. AFTER THE ADVENT OF THE CONSTITUTION: IN RE DELHI LAWS ACT CASE: ANALYSIS OF FACTS AND JUDGEMENT In order to clear doubts regarding the validity of a number of laws which contained such delegation of legislative power. 1912. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE .II to interfere. 17 18 NATIONAL LAW UNIVERSITY.19 The three questions were as follows: A. . 1912.17 Further. Jain. at ¶42. 19 Srinivasan. then in what particular or particulars or to what extent? The said provision provided that "The Provincial Government may. such issues could not possible be decided keeping the text of the constitution as the sole basis.18 iv. extend to the Province of Ajmer-Merwara with such restrictions and M.P. Jain & S. at 55.. or any of the provisions thereof ultra vires and in what particular or particulars or to what extent was the same ultra vires the Legislature which passed the said Act? The impugned section stated that "Extension of Enactments to Ajmer-Merwara.N.
Part C States (Laws) Act. v. This act delegated the power to the Central Government to extend to Part C States with such modification and restriction as it may deem fit any enactment which was in force in any Part A states. Parliament had to legislate for them. extend to any Part C State (other than Coorg and theAndaman and Nicobar Islands) or to any part of such State. §2. This was also held valid by the court. NATIONAL LAW UNIVERSITY. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE .”22 Part C were states directly under the control of the Central Government without having a legislature of their own and hence. ANALYSIS OF THE VARIOUS OPINIONS WITH REGARDS THE CORE ISSUE The seven judges that presided over the case provided us with 7 different opinions for the final adjudication. with such restrictions and modifications as it thinks fit."21 This act delegated the power to the Government to extend to the province with such modification and restriction as it may deem fit. JODHPUR | 6 . 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.IN RE: DELHI LAWS ACT. or any of the provisions thereof ultra vires and in what particular or particulars or to what extent was it ultra vires the Parliament? The provision up for consideration before the court stated that "Power to extend enactments to certain Part C States. . The Ajmer-Merwara (Extension of Laws) Act. Is Section 2 of the Part C States (Laws) Act. 1950. Section 2 of the Act was held valid but the power to repeal or amendment of any corresponding law which was for the time being applicable to part C was void and was held to be excessive delegation. It also empowered the Government to repeal or amend any corresponding law which was applicable to Part C States. on one hand 21 22 §2. 1950. 1947. The importance of the case cannot be under estimated in as much as. by notification in the Official Gazette.The Central Government may. C. The different reasons provided would be analysed subsequently.II modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification.
Secondly. Separation of powers is not a part of the Indian Constitution. Indian parliament was never considered as an agent of anybody. 23 Sathe. 2. There was unity of outlook on two points. To arrive at these common conclusion. Setalvad took the argument that power of delegation is a necessary implication of the power of legislation and the same does not result in abdication of the powers.23 The question was with regards the extent to which the legislature in India can delegate its legislative power. Parliament and state legislatures have to delegate the power in order to deal with multiple problems prevailing in India. NATIONAL LAW UNIVERSITY. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE . since the legislature derives its power from the Constitution. As both the views were radical. there is an implied prohibition on delegation of power. M. JODHPUR | 7 . Firstly. There is a limitation on delegation of power. Essential legislative power means the power to lay down the policy of the law and enacting that policy into a binding rule of conduct. as it is impossible to expect them to come with complete and comprehensive legislation on all subjects sought to be legislated on. There were two extremist views put forth by the two counsels. The Power of delegation is ancillary to the power of legislation. 5. 3. the court took a view that sought to harmonize the two and provided the following dicta: 1. Therefore. while on the other. the doctrine of delegates non potest delegare is not applicable. The Parliament completely cannot abdicate itself by creating a parallel legislative body.IN RE: DELHI LAWS ACT.II it permitted delegated legislation. supra note 2. Legislature cannot delegate its essential legislative power. excessive freedom like in the case of British constitution cannot be granted and limitations are required. C. the Supreme Court gave 7 different pathways. 4. it demarcated the extent of such permissible delegation of power. at ¶42. keeping the exigencies of modern government in view. The opposing counsel took the view that there exists a separation of powers in the country and India follows the doctrine of delegates non potest delegare. Therefore.
it must retain in its hands the ultimate control over the authority so as to be able to withdraw the delegation whenever delegate did something wrong. This was reject out rightly by Chief Justice Kania. i. also concurred with the opinion above. in addition. M.IN RE: DELHI LAWS ACT. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE . Justice Bose who was in favour of delegated legislation. Setalvad that the Parliament could delegate because of the legislative power carried with it is power to delegate. In this backdrop. .II The Hon’ble Judges differed on the question as to what were the permissible limits within which the Indian legislature could delegate its legislative powers. C. forbidden by the Constitution. However. lay down conditions. acceded to the contention of the Attorney General and NATIONAL LAW UNIVERSITY. Justice Sastri and Justice Das. by necessary implication. This meant that the legislature should lay down the standards or policy in the delegating Act and the delegate may be left with power to execute the policy. in respect of delegating law making authority by one legislature to another is.e. One view advocated that the legislature can delegate power to the extent that it does not abdicate its own power to have control over the delegate i. In doing so it may. Justice Mahajan and Justice Mukherjea opining that constitution had never per se warranted delegation powers at any stage and all of them agreed on the outlook that legislature can however. VIEWS FROM THE BENCH The Source of Power to Delegate It was concurred upon that the legislation should essentially be enacted by the Legislature such that the intention of the same is manifested. Therefore. or state facts which on being fulfilled or ascertained according to the decision of another body or the execution authority. it was claimed by the learned Attorney General. conditionally legislate. delegation. This was described as conditional legislation. the legislation may become applicable to a particular area. JODHPUR | 8 . The second view reasoned that the legislature cannot delegate its essential functions which comprised the formulation of policy etc. the Legislature cannot retire and leave the task of law making to any other body or class of bodies. vi.
and the power resides in the legislature. Their decision was based on the theory of Parliamentary sovereignty and they observed that power to make law comes along with the power to delegate.IN RE: DELHI LAWS ACT. Most of the judges answered these questions in affirmative. Justice Mahajan. Ultima Thule: Limits of Delegation The present position is that the legislative function in its true and intrinsic sense cannot be delegated. They observed that only the legislature has the authority to modify and alter the law in any substantive sense. Only Chief Justice Kania and Justice Mahajan differed. added that essential matters cannot be delegated by the legislature.24 ii. Discretion to make modifications and alterations in an Act while extending it to a given area. Delegation of power to make modifications and alterations The questions stated in this case is already stated above. (1984)2SCC534. To provide a more holistic perspective. The question on amount of discretion exercisable by delegated authority cannot be defined and is a question that depends on the facts and circumstances of each case. According to the opinion of Justice Mukherjea. if the policy laid down in an Act is in broad terms. v. iii. NATIONAL LAW UNIVERSITY. Justice Fazel Ali added that the power to change necessary things is incidental to applying the law. JODHPUR | 9 . the formulation of the details of the policy can generally to be passed to the executive. Therefore what can be delegated are only the non-essential functions. ¶40. Only functions ancillary to the essential functions of the legislature. 24 Gramophone Company of India Ltd. and to effect consequential amendments or changes in an existing law is again conditioned with the proposition that essential functions can’t be delegated. Chief Justice Kania opined that legislature cannot delegate to lay down policy underlying a rule of conduct.Birendra Bahadur. the author may point out that this case was decided in 1951 and since then the law on the subject has changed drastically.II therefore differed from the majority. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE . It is now judicially conceded that power of delegation is constituent element of legislative power.
Essential functions could not be delegated under any condition. JODHPUR | 10 . Justice Mukherjea observed that modification does not mean change of policy but it is confined to alterations which keeps the policy intact and introduces changes appropriate to suit the local conditions. The author would note here that. Impact of the In Re: Delhi Laws Act Case After In Re Delhi Laws Act25.26 Here. the Canadian and the Indian Constitutional systems. in essence. The first case which encountered this question was Gwalior Rayon. To say that legislature should not abdicate its power is not entirely opposed to saying that the legislature should not delegate its essential powers. 2SCR747. Repeal of Law The power to repeal a law is essentially a legislative power and hence. 1956 authorised levying of sales tax on interstate In Re: The Delhi Laws Act. The minority based its view of the theory of legislative omnipotence of the British Parliament. Das and Sastri held all the sections to be perfectly valid. 26 Gwalior Rayon Silk Manufacturing Co. (1974)4SCC98. Justices Fazl Ali. v Assistant Commissioner of Sales Tax. 25 NATIONAL LAW UNIVERSITY. Justice Bose also was of the same opinion. v. 1912. the variance between the views of the minority and majority was not antagonistic. The majority based its opinion on the maxim of unis est exclusion alterious and ruled that an express provision permitting delegation contained in Article 357 would mean that unrestrained legislation was not permitted under the constitution.IN RE: DELHI LAWS ACT. and its reflection in the Australian. iv. Section 8(2)(b) of Central Sales Tax Act. 1950. the majority felt that the executive authority could be authorised to modify the law but not in essential and intrinsic sense.II If modifications are done within the framework and does not change the identity or structure no objection could be taken. which include the power to delegate legislative functions. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE . In this way. subject to the condition of non-abdication. the question which arose was related to the limits of delegation and the grounds for such limitation. the Ajmer-Merwara (Extension of Laws) Act. delegating that to the Government is at once ultra vires the power to delegate. 1947 and the Part C States (Laws) Act.
endorsed the “Abdication Test” i. The majority refused to accept this test. (1980)1SCC492. This was challenged as excessive delegation on the grounds that no policy was laid down in the parent act. Justice Khanna propounded the “Standard Test” which provided that when legislature confers powers on an authority to make delegated legislation it must lay down policy. K. in the case of N.e. (1975)1SCC492. Further in the case of Brij Sunder29 the court even allowed the extension of future laws of another state to which the adopting state legislature never had an opportunity to exercise its mind. non-abdication of own N. Justice Mathew. as long as the legislature can repeal the parent act conferring power on the delegate. principle or standard for the guideline for the authority concerned.IN RE: DELHI LAWS ACT. 1965. (1989)1SCC561. the legislature does not abdicate its powers. JODHPUR | 11 . it laid down that delegation is possible and necessary due to increase in burden on the legislature and increase in administrative activities. vii. Justice Matthew. Kanjambu30. whichever is higher. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE .e. Papiah27 held the legislation valid based on the Abdication Test. was valid or not. Papiah v Excise Commisioner. Karnataka Excise Tax Act. The validity of the Act was upheld. One of it was laying down that the British model of Delegated Legislation cannot be implemented in India because of the difference in certain basic tenets of the Constitution and system of administration. in K. in his separate opinion. This case increased the scope of the delegated legislation to the extent of ancillary powers i. the court propounded the “Policy and Guideline” test. CONCLUSION The case has materially contributed in the development of the concept of delegated legislation by clarifying certain areas of confusion. In addition to this. K.II sales @ 10% or at the rate applicable to sale or purchase of goods in that state. §122. It is fascinating here to note that all these cases upheld the constitutional validity of the delegated legislation in question. Moreover. Kanjambu. 29 Brij Sunder v First Additional District Judge. The question was whether the Act which conferred power on the Government to fix the rate of excise duty28 and lay them before the legislature. 30 Registrar of Co-operative Societies v K. This cleared the confusion surrounding conditional delegation and delegation. 27 28 NATIONAL LAW UNIVERSITY.
It may also be noted here that the present case shows lack of judicial consensus.II power and non-transferring of main and essential functions. NATIONAL LAW UNIVERSITY. 31 32 Agricultural market Committee v Shalimar Chemical Works. Secondly. The latter emphasized on the concept conditional delegation.32 In culmination.. I. it legitimized delegation of legislative power by the legislature to administrative organs. P. Courts are clear on the status of delegated legislation being allowed. Firstly. The ghost of Jatinder Nath was hovering over the judges who presided over both these cases and they could not be expected to change their opinion as such short notice. p. As the opposition counsel built on the argument of separation of powers and the concept of non potest delegare. JODHPUR | 12 . 103. (1997)5SCC516. Massey. A Majority of the judges were in favour of delegated legislation. the court observed that separation of powers is not a part of Indian constitution.IN RE: DELHI LAWS ACT. it is a well-accepted concept and delegation of power is allowed as long as it is reasonable. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE . In the contemporary scenario.31 The only question the courts must appreciate in such cases is whether the power delegated is excessive or within the ambit of the parent act. Administrative Law (7th Edn. Eastern Book Company). it imposed an outer limit on delegation by the legislature. this case achieved 2 material ends. Only Justice Mahajan and Chief Justice Kania were in disagreement with the same.
11 9.en passim 7. Papiah v Excise Commisioner. (1984)2SCC534 -------------------------9 5. 1950. (1989)1SCC561 ------------------------------------. Agricultural market Committee v Shalimar Chemical Works. In Re: The Delhi Laws Act. 1912 ----------------------------------------------------------------------------1. N. 1912| CASE ANALYSIS | CONSTITUTIONAL GOVERNANCE . Mar Appraem Kuri Company Ltd.12 2.11 4. The Ajmer-Merwara (Extension of Laws) Act.10 6. S. JODHPUR | 13 .Birendra Bahadur. 9 8. 1947 and the Part C States (Laws) Act. Act No. v. Administrative Law ----------------------------------------------------------------------3.II REFERENCES AND BIBLIOGRAPHY CASES 1.11 4. 1965 ------------------------------------------------------------------.. (1980)1SCC492 --------------------------------. Registrar of Co-operative Societies v K.N. (1987)1SCC658 --------------------3.P. Takwani. v. B. Part C States (Laws) Act. Gramophone Company of India Ltd. K. Brij Sunder v First Additional District Judge. 1947 ---------------------------------------------6 TREATISES 1.P. 1912. (1975)1SCC492 ---------------------------------------------. Sathe. 6 5. M. 4. Queen v Burah. v Assistant Commissioner of Sales Tax. State of Kerala and Ors. the Ajmer-Merwara (Extension of Laws) Act. Srinivasan and Ors. 5 3. 1878 3 AC 889 ----------------------------------------------------------------------3. 6 NATIONAL LAW UNIVERSITY. and Anr. 2SCR747 ------------------------------------------------. 4 10. 5 3. 2. Gwalior Rayon Silk Manufacturing Co. State of Karnataka and Ors. (1997)5SCC516 -------------------. (2012)7SCC106 ---------4 STATUTES 1. Jain & S.K.. C. 5 3. Lectures on Administrative Law -------------------------------------------------------3 2.IN RE: DELHI LAWS ACT. XXII. Delhi Laws Act. Kanjambu. (1949) 2 FCR 595 ----------------------------------------------4. Principles of Administrative Law-------------------------------------------4. 1950 -----------------------------------------------------------------1.11 11. Jatindra Nath v Province of Bihar. 2. Karnataka Excise Tax Act. v. of 1869 ---------------------------------------------------------------------------------4 2.K. Jain. (1974)4SCC98 .
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