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B.A., LL.B. (HONS.)


Under the Supervision of Dr. Azimkhan B.





Acknowledgement:I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many individuals and this organization. I would
like to extend my sincere thanks to all of them. I am highly indebted to Dr.
Azimkhan B. Pathan for his guidance and constant supervision as well as for
providing necessary information regarding the project & also for his support in
completing my project Excessive Legislative Functions and The policy of
My thanks and appreciations also go to my classmates in developing the project and
people who have willingly helped me out with their abilities.
I am also thankful to the IT Department of UPES and the library as well as without
them the making of this project would have been next to impossible.
I am thankful to and fortunate enough to get constant encouragement, support and
guidance from my parents and friends who helped me in successfully completing
this project.

Table of contents
2.)Key Issues and Challenges
3.)Case Studies

In attempting to improve policy and implementation it is tempting to rely too much on laws and
top-down policymaking. Controls on administrative, fiscal, and personnel systems can become
so strict that managers cannot manage and elected officials cannot get their programs
implemented. Discretion can be reduced to such a minimum that cases with any unusual aspects
take weeks and months to be resolved. The resulting inflexibility wastes resources and
opportunities, produces policies that are unresponsive to social realities (thus eroding the
credibility of good-governance efforts), and can increase incentives to corruption. There is a need
for policies that increase the space for debate and consultation, encourage innovation, and pursue
desired outcomes with positive incentives rather than through prohibitions alone. Procedural
controls may generate massive amounts of information, but if it comes in forms that only other
officials can understand, or if it is generated predominantly by citizens giving information to
government rather than government opening up to citizens, transparency is not aided and people
are unlikely to develop a personal stake in reforms. Remember that politics is a part of good
governance. The controversy and delay that often accompany open political debate may seem an
unaffordable luxury, or indeed a serious problem, in societies seeking to enhance the rule of law.
Too many reformers view governance primarily as a set of technical administrative tasks, and
public participation as either a pro forma exercise or a process to be orchestrated from above via
high-profile, but short-lived, mass campaigns. In either scenario citizens have little opportunity
or incentive to participate in any long-term way, or to link official promises to the problems of
their own communities. Civil society, where it exists, can and should help define the ends and
means of governance reform, benefit from its successes, and claim part of the credit for
initiatives that turn out well. Open debate airing real differences, while engendering some
controversy, can elicit sustained participation particularly if it has clear-cut effects upon the
decisions and policies eventually implemented. In both established and renewed democracies
citizens will be the final arbiters of what is, and is not, credible governance reform; thus it is
important to involve citizens and NGOs in the shaping of reform agendas from the start. There is
no doubt that governance reform requires lasting leadership and commitment from above, and
that identifying reform champions is an important early stage in providing such leadership. But
such initiatives cannot be effective if they are confined to blue-ribbon commissions that hand
down proclamations, or to a one-man show model of reform. Even though it takes time, effort,
and resources, and even though it will involve sharing the credit for improved governance, it is
far better to get out into communities, learn about popular concerns, and build a broad base of

Key Issues and Challenges

Pay close attention to problems and controversies: As suggested in the opening paragraph,
those issues can mobilize popular energies and commitment far more effectively than can good
ideas alone. Without those sorts of connections, citizens will see few links between the rule of
law, transparency, and accountability on the one hand, and the concrete problems of everyday
life, and they will not develop a sense that change for the better requires their own support,
participation, and compliance. Reform leaders who cannot demonstrate broad-based and deep
social support will find it all the more difficult to sway officials and interest groups skeptical
about, or openly opposed to, reform. Actively corrupt figures will take such a lack of support as
evidence that the reform movement will be short-livedand often, they will be right. Over time,
high-profile efforts that do not succeed will lead to public cynicism, and will make the next
round of reform even more challenging.
Paying close attention to incentives
Governance reforms often emphasize public goods, such as efficiency, honesty, cultural empathy,
and the like, to the exclusion of private benefits. Other kinds of appealsthat better governance
would cut taxes, make it easier to find jobs in a revived economy, protect ones family and
propertyreceive too little attention, even when the goal is enlisting the participation and
support of civil society. As a result, good-governance efforts encounter collective action
problems: people decide that if reform improves governance for anyone it will do so for all, and
thus that their own efforts are inconsequential or even unwanted. Extensive efforts must be made
to persuade citizens, government functionaries, and political leaders that they stand to benefit
from reformthat is, to create the sort of sustaining stake in reform noted above. Public opinion
mattersin many ways. All of this suggests that even in emerging democracies reformers ignore
public opinion at their peril. Surveys and community meetings to identify what people believe
about the current state of affairs and expect of reform are essential. So are sustained efforts to
educate the public about key problems, the justification for proposed changes, the costs of better
governance, and actual results. Public education can also change citizens conduct by
encouraging them to resist exploitation by officials or by other citizens, to file useful reports of
problems, and to obey new laws and procedures. Technical improvements to government
operations such as new budgetary and procurement procedures may be impressive. But if people
do not think such measures will give them better police service or cut down on time lost in
dealing with bureaucrats, then key sources of support will have been lost. The publics reform
criteria may well be achievable: better road repairs, an end to demands for bribes by the police,
and fairer and more equitable tax assessments might be examples. Moreover, success at those
levels can win support for more ambitious governance reforms, and the patience and tolerance
needed for them to take full effect. But if reform leaders are not aware of what citizens think of
when they hear words like reform and good governance, credibility may quickly be lost.

Strengthen checks and balances. While a measure of coordination among segments of

government is essential, it is only part of the picture. Government must also be able to check its
own excesses. The judiciary is essential to interpreting and enforcing new laws and standards,
and if it is not independent of the government of the day it will be ineffective. Similarly,
executive agencies require oversight, and here legislative scrutiny and credible external
watchdogs can enhance effective policy implementation and check abuses. An ombudsman
system to which citizens can make complaints and reports may also be valuable, but citizens
must be confident that they will not face reprisals and that their reports will be taken seriously.
(Even then, in some societies citizens will resist filing reports for cultural or historical reasons).
These sorts of oversights and controls must be active, consistent, and sustained; if invoked only
in emergencies or in the wake of failures they will be of little benefit. Never underestimate
opposition to reform. Many governance problems result from a shortage of resources or a lack of
state technical and political capacity. But others persist because someone benefits from them, a
fact that reformers cannot ignore. Serious reforms may encounter increasing resistance within
government, or from segments of the public, to the extent that they begin to gain traction; yet it
will be at precisely those points that active support from top leadership and from civil society
may be most important. Transparency and accountability problems are particularly likely to
persist because of vested interests in government and society, and reformers must be aware that
at times those resisting enhanced transparency and accountability will go through the motions
filing reports, producing data, carrying out reviews and assessmentsin ways that actually
conceal rather than revealing and attacking governance problems. Here too, outside monitors
auditors, legislative oversight bodies, investigating judgeswill be essential. Think in regional
terms. Neighboring societies and governments may well be coping with similar problems and
constraints, and may be finding ways to adapt rule of law, accountability, and transparency
mechanisms to new and complex situations. In addition, few of the problems good governance is
intended to attack are contained within national boundaries. Sharing ideas, experiences, and
resources, coordinating rule-of-law functions on a regional basis, and peer review of governance
procedures can all contribute to reforms appropriate to social realities, and can make better use of
scarce resources.
Stay focused on the long term
Too often governance reform is a short-lived issue. This is particularly the case following a crisis
or scandal; once matters settle down it is easy to conclude that all is well and governance
problems have been fixed. Particularly with respect to the rule of law and its social foundations,
governance reform will take a generation or more, not just a few months or years. Much the
same is true of transparency and accountability too, in the sense that agency, political elite, and
civil service cultures may need to be changed. More rapid progress may be possible in those
areas to the extent that individuals can be replaced and the incentive systems of institutions
overhauled. Even then, however, bureaucrats will need periodic retraining, elected officials will
need continuing information on governance problems (and continuing incentives to fix them),

and citizen support will be required over the long term. Here too, public education will be an
integral part of any effort to deepen the rule of law, and to improve transparency and

Case Studies
In India distinction of powers of a sovereign are classified under the Legislative, Executive and
Judiciary. This distinction is blurred, as some would contend, when powers are delegated or subdelegated. After independence, there was a lot of confusion regarding the concept of delegation
i.e. whether it is possible and if so, to what extent. To clarify this, the President of India referred
this question to the apex court under Article 143 of the Constitution. The court laid down some
principles regarding these questions. The re Delhi Laws Act is a landmark judgment of the 7
Judge Bench of the Supreme Court wherein each judge had a difference of opinion. Therefore, an
analysis of the same would lead to a better understanding of the applicability of the concept of
delegated legislation in India.
During the middle of the 18st century, Montesquieu said,
There would be an end of everything where the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of extracting law, that of executing
the public resolutions and of trying the causes of individuals.1
The theory of separation of powers signifies three formulations of structural classifications of
governmental powers:

The same person should not form part of more than one of the three organs of the
Government. For example: ministers should not sit in Parliament

One organ of the Government should not interfere with any other organ of the

One organ of the Government should not exercise the function assigned to any other

The aim of this doctrine is to guard against tyrannical and arbitrary powers of the State. The
rationale underlying the doctrine has been that, if all power is concentrated in one and the same
organ, there would arise the danger that it may enact tyrannical laws, execute them in a despotic
manner, and interpret them in an arbitrary fashion without any external control. Though in the
face of the complex socio-economic problems demanding solution in a modern welfare state, it
may no longer be possible to apply the separation theory strictly, nevertheless, it has not become
completely redundant and its chief value lies in emphasizing that it is essential to develop
adequate checks and balances to prevent administrative arbitrariness. Thus, it has been stated
about the doctrine: Its objective is the preservation of political safeguards against capricious
1 Thakker.C.K., Administrative Law, (1992), Eastern Book Co., p. 31

exercise of power; and incidentally, it lays down lines of an effective division of functions. Its
logic is the logic of popularity rather than strict classification.the great end of the theory is, by
dispensing in some measure the centers of authority, to prevent absolutism.2
In India, the doctrine of separation of powers has not been accorded a constitutional status. Apart
from the directive principle laid down in Article 50 which enjoins separation of judiciary from
the executive, the constitutional scheme does not embody any formalistic and dogmatic division
of powers.3
The Supreme Court in Ram Jawaya Kapoor v. State of Punjab4, held,
In India, not only is there a functional overlapping but there is personal overlapping also. The
Supreme Court has the power to declare void, the laws passed by the legislature and the actions
taken by the executive if they violate any provision of the Constitution of the law passed by the
legislature in case of executive actions. Even the power to amend the Constitution by the
Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void if
it changed the basic structure of the Constitution.5 The president, in whom the executive
authority is vested, exercises law making power in the form of ordinance making power and also
judicial power, by virtue of Article 103(1) and 217(3). The legislature besides exercising lawmaking powers exercises judicial powers in cases of breach of its privilege, impeachment of the
President and the removal of the judges. Indian Constitution has not indeed recognized the
doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or
branches of the Government have been sufficiently differentiated and consequently, it can be
very well said that our Constitution does not contemplate assumption by one organ or part of the
State of functions that essentially belong to another.
From the above discussion it becomes clear that the doctrine in its classical sense, which is
structural rather than functional, cannot be literally applied to any modern Government because
neither can the powers of the Governments be kept in water tight compartments nor can any
Government run on strict separation of powers. In the same manner, Prof. Wade writes that the
objection of Montesquieu was against accumulation and monopoly rather than
2 Jaffe and Nathanson , Administrative Law: Cases and Material, (1961) at p. 38
3 Upendra Baxi : Developments in Indian Administrative Law, in Public Law In
India (1982) (A.G. Noorani, Ed.), p. 136
4 AIR 1955 SC 549
5 Keshavananda Bharati v. State of Kerala, (1972) 4 SCC 225

interaction.6 Montesquieu himself never used the word separation. Therefore, not impassable
barriers and unalterable frontiers but mutual restraint in the exercise of power by the three organs
of the State is the sole of the doctrine of separation of powers. Hence the doctrine can be better
appreciated as a doctrine of checks and balances and in this sense administrative process is not
an antithesis of the doctrine of separation of powers.
Thus it reached the state where the legislature could not make the law in full to cope up with the
situation due to the interference of the state in the multiple facets of life. Admittedly, the
legislature in India lacks experience and expertise to make laws taken into account the present
and future requirement in a developing country. A law is made to suppress mischief and to
advance a remedy. The remedy should be beneficial for the society in future too. That technical
know-how and expertise can be attributed only to the executive wing of the Government.
Therefore, basically it was decided that by retaining the policy of law making with the
legislature, the details, the procedures and the method of implementation can be left to the
wisdom of the executive, authorizing them to supply flesh and blood to the skeletal legislature
enacted by the legislature. This transfer of authority to make laws to the executive is generally
known as delegation of legislative power and the law thus made by the executive as delegated
But what are the limits within which the executive can exercise the authority conferred upon
them? Broadly speaking, it cannot be ultra-vires the Constitution and the parent Act made by the
legislature. The scope of delegation and the checks and balances to be exerted over the executive
was considered in detail by the honorable Supreme Court of India when such a matter was
referred to the same under Article 143 of the Constitution by the President.
In the present era, it is abundantly clear that the shift to a welfare state has lead to an increase in
the administrative functions of the country. After independence, there has been a lot of confusion
regarding the concept of delegation i.e. whether it is possible and if so, to what extent. To clarify
this, the President of India referred this question to the apex court under Article 143 of the
Constitution. The court laid down some principles regarding these questions. The in re Delhi
Laws Act7 is a landmark judgment of the 7 Judge Bench of the Supreme Court wherein each
judge had a difference of opinion.
To understand the present case better, we have to divide Indian era into basically three: the pre
independence, post independence and the post constitution.
6 Wade: Administrative Law, p.251

7 AIR 1951 SC 332

The authority regarding delegated legislation in the pre-independence period was primarily held
by Queen v. Burrah8. In this case, the Act in question (Act XXII of 1869) deals with the
Governor Generals power to bring the Act in effect, determine what laws were to be applicable
and the power to extend application of provisions of the Act. Here an Act was passed by the
Indian legislature t remove Garo Hills from the civil and criminal jurisdiction of Bengal and
vested the powers of civil and criminal administration in an officer appointed by the Lt.
Governor of Bengal. The Lt. Governor was further authorized by S.8 of the Act to extend any
provision of this Act with incidental changes to Khasi and Jaintia Hills. One Burah was tried for
murder by the Commissioner of Khasi and Jaintia Hills and was sentenced to death.
The question was whether these functions would be categorized as delegated legislation. The
court held that the above mentioned powers were conferred only on the fulfillment of certain
conditions and hence this was conditional legislation, a concept all together different from
delegated legislation. The court also stated that It is a general principle of law in India that any
substantial delegation of legislative authority by the legislature of the country is void..9. The
case thus lays down that substantive delegation i.e. delegation if the important functions are void
in India and that delegation, if at all possible would have to be conditional.
The three questions primarily dealt with whether a law in existence before the independence,
after independence or after the Constitution can be extended to another province or area by a
notification by the Government without legislative deliberation. Specifically, they are:The limits
of delegation were however not laid down in the above case. Under such circumstances
confusion arose in respect of the policy to be followed. India looked into the American system,
where unlimited power cannot be delegated as a consequence of the doctrine of separation of
powers, or the English concept where as much power as necessary can be delegated due to the
unquestioned supremacy of the Parliament. It was left open to the courts to follow either one of
the models. Inadequacies of these models lead the Indians to the Constitution in search of an
answer. But even the Constitution was silent about this concept. It was in this under these
circumstances that the President of India under Article 143 of the Constitution asked the courts,
opinion on the three questions.

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

Section 7 of the Delhi Laws Act, 1912, mentioned in the question runs as follows:

8 1873 3 AC 889
9 Per Markby, J., Calcutta High Court

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

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.

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?

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.
The learned judges while delivering their judgment, highlighted instances of delegation in
America, England, Australia, Canada and some other countries, whose persuasive influence has
to be taken into consideration. Some of these instances will be dealt with presently.Being a
reference case, it is primarily concerned with the different opinions rendered by the judges. The
primary reason for this reference can be traced to Jatinder Nath v. Province of Bihar10(the case
which holds importance with regard to the post-independence period), where it was held that in
India, there could be no delegated legislation beyond conditional legislation. The court in this
case held the proviso to sub-section (3) of section 1 of the Bihar Maintenance of Public Order
Act, 1947, ultra vires the Bihar Provincial Legislature, by reason of it amounting to a delegation
of its legislative power to an extraneous authority, doubts have arisen regarding the validity of
the three legislative provisions.
The rule against delegated legislation in America has developed as a corollary to the doctrine of
separation of power. This is however not an inevitable corollary. It has on several occasions been

10 (1949) 2 FCR 595

relaxed.11 They further added that the same was applicable in Australia. Though its Constitution
is based on the separation of power doctrine, it does not stand in the way of delegation. The
British position was highlighted through New South Wales v.Commonwealth12 , It is well known
in all British communities; yet, except in the United States, nowhere it has been held that by
itself forbids delegation of legislative power13 The situation in Canada has been highlighted
by the justices by means of Hodge v. The Queen14. Here it was argued that the power conferred
by the Imperial Parliament on the local legislature should be exercised in full by that body and
by that body alone. The maxim delegates non potest delegare was relied upon to support the
In the Indian context, to explain the situation in the pre-independence period, they have relied on
Diceys comments. According to Dicey, the Indian Legislatures are in short, within their own
sphere, copies of Imperial Parliament, they are within their own sphere sovereign bodies, but
their freedom of action is controlled by their subordination to the Parliament of the United
The trend has not shown much variation in the post-independence era, except for the fact that
once India became a free nation, it was no longer under the control of the parliament of U.K.
They further went on to say that in the first place, it seems quite clear that the Privy Council
never liked to commit themselves to the statement that delegated legislation was
permissible.they were at pains to show that the provisions impugned before them were
instances of delegation of legislative authority, but they were instances of conditional
legislation15 which according to them the Legislatures were competent to enact.

J Kania

Chief Justice Kania, formed part of the minority along with Mahajan, J. The Chief Justice
declared that, whether sovereign or subordinate, the legislative authority can delegate if it stands
the three basic tests:
11 J.W.Hampton Jr. & Co. v. U.S.; 276 U.S. 394 (1928)
12 (1990) 169 CLR 482
13 Per Richard,J. in New South Wales v. Commonwealth
14 [1883] 9 AC 117
15 As in the case of Queen v. Burrah; (1878) 5 I.A. 178

(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 of 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 it has, if the creation of such a body is prohibited by the instrument which
establishes the legislative body itself.
With regard to the three questions he stated that:
Firstly, The Province of Delhi was carved out of the Province of Punjab and was put under a
Chief Commissioner and by section 2 of the Delhi Laws Act the laws in force in the Punjab
continued to be operative in the newly created Province of Delhi. The Province of Delhi had not
its legislative body and so far as this Chief Commissioners Province is concerned it is not
disputed that the power to legislate was with the Governor- General in Council in his legislative
capacity. Section 7 of the Delhi Laws Act enables the Government (executive) to extend by
notification 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, i.e., a law which was in force not necessarily in the Province of Punjab only, from
which the Province of Delhi was carved out, but any Central or provincial law in force in any
In his opinion, therefore, to the extent section 7 of the Delhi Laws Act permits the Central
executive government to apply any law passed by a Provincial legislature to the Province of
Delhi, the same is ultra vires the Central Legislature. To that extent the Central Legislature has
abdicated its functions and therefore the Act to the extent is invalid.He further relies on the
landmark judgment of Queen v. Burrah16. He was of the opinion that as far as extension of the
laws passed by the Central Legislature goes, the Act maybe said to be valid, relying on the above
mentioned precedent. . It has however, not considered whether the Province of Delhi requires the
rule of conduct laid down in those Acts, as necessary or beneficial for the welfare of the people
of the Province or for its government. They are passed by other Provincial legislatures according
to their needs and circumstances It may be noticed that the power to extend, mutatis mutandis,
the laws as contained in sections 8 and 9 of Act XXII of 1869 brings in the idea of adaptation by
modification, but so far only as it is necessary for the purpose.
Question 2 relates to Ajmer-Merwara (Extension of Laws) Act. Till the Government of India Act,
1915, there was unitary government in India. By the Act of 1915, Provincial legislatures were
given powers of legislation but there was no distribution of legislative powers between the
Centre and the Provinces. That was brought about only by the Government of India Act, 1935.
16 Supra ft. 4

Section 94 of that Act enumerates the Chief Commissioners Provinces. They include the
Provinces of Delhi and Ajmer-Merwara. Under sections 99 and 100 there was a distribution of
legislative powers between Provinces and Centre, but the word Province did not include a
Chief Commissioners Province and therefore the Central Legislature was the only law-making
authority for the Chief Commissioners Provinces. The Ajmer-Merwara Act was passed under
the Government of India Act as adapted by the Indian Independence Act. Although by that Act
the control of British Parliament over the Government of India and the Central Legislature was
removed, the powers of the Central Legislature were still as those found in the Government of
India Act, 1935. The Independence Act therefore made no difference on the question whether the
power of delegation was contained in the legislative power. The result is that to the extent to
which section 7 of the Delhi Laws Act is held ultra vires, section 2 of the Ajmer-Merwara Act,
1947, should also be held ultra vires.
Finally, with regard to the third question, he states, Article 246 deals with the distribution of
legislative powers between the Centre and the States but Part C States are outside its operation.
Therefore on any subject affecting Part C States, Parliament is the sole and exclusive legislature
until it passes an Act creating a legislature or a Council in terms of article 240. Proceeding on the
footing that a power of legislation does not carry with it the power of delegation, the question is
whether section 2 of the Part C States (Laws) Act 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 and modifications as it thinks fit, any enactment which is in
force in Part A State at the date of the notification. The chief observed that the section although
framed on the lines of the Delhi Laws Act and the Ajmer-Merwara Act is restricted in its scope as
the executive government is empowered to extend only an Act which is in force in any of the
Part A States. For the same reasons he considers certain parts of the two sections covered by
Questions 1 and 2 ultra vires, that part of section 2 of the Part C States (Laws) Act, 1950, which
empowers the Central Government to extend laws passed by any Legislature of Part A State, will
also be ultra vires. To the extent the Central Legislature or Parliament has passed Acts which are
applicable to Part A States, there can be no objection to the Central Government extending, if
necessary, the operation of those Acts to the Province of Delhi, because the Parliament is the
competent legislature for 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.

Mahajan, J.

Justice Mahajan concurred with the views put forward by the Chief and along with the Chief
delivered the minority view in this particular case.
The first question relates to section 7 of the Delhi Laws Act, 1912, and concerns its validity in
whole or in part. The section gives a carte blanche to the Governor General to extend to the
newly formed province any enactment in force in any part of British India at the date of the

notification and not necessarily any enactment in force in British India at the date of the passing
of the Delhi Laws Act. No schedule was annexed to the Act of the enactments that were in force
in any part in British India at the date of the passing of the Act. As regards the enactments that
may be in force in any part of British India at the date of any notification, there was no knowing
what those laws would be. Laws that were to be made after 1912, their principle and policy could
not be known to the legislature that enacted section 7 of the Delhi Laws Act. He was of the view
that the legislature could neither have exercised its judgment, nor its discretion in respect of
those laws. It also conferred on the Governor-General power of modifying existing and future
enactments passed by different legislatures in the country. The power of modification implies
within it the power of amending those statutes. In the Justices opinion the section conferred a
kind of a vague, wide, vagrant and uncanalised authority on the Governor- General17. From his
analysis, it would thus seem that within the wide charter of delegated power given to the
executive by section 7 of the Delhi Laws Act, it could exercise essential legislative functions and
in effect it became the legislature for Delhi. This section therefore, in his opinion, ultra vires the
Indian Councils Act, 1861, in the following particulars:
(i)In as much as it permits the executive to apply to Delhi laws enacted by legislatures not
competent to make laws for Delhi and which these legislatures may make within their own
legislative field, and
(ii) In as much as it clothes the executive with co-extensive legislative authority in the matter of
modification of laws made by legislative bodies in India.
He was however keen to note that had the Legislature of the adopting country passed this
particular law, then it would be valid.
In answering the third question, he has adopted a similar reasoning. He held that in this case
express power to repeal or amend laws already applicable in Part C States has been conferred on
the Central Government. Power to repeal or amend laws is a power which can only be exercised
by an authority that has the power to enact laws. It is a power co-ordinate and co-extensive with
the power of the legislature itself. In bestowing on the Central Government and clothing it with
the same capacity as is possessed by the legislature itself the Parliament has acted
unconstitutionally.The second question concerns section 2 of the Ajmer-Merwara (Extension of
Laws) Act, 1947, which provides for extension of enactments to Ajmer-Merwara. The section
does not declare any law but gives the Central Government power to declare what the law shall
be. The choice to select any enactment in force in any province at the date of such notification
clearly shows that the legislature declared no principles or policies as regards the law to be made
on any subject. It may be pointed out that under the Act of 193518 different provinces had the
17 Ibid.
18 Government of India Act, 1935

exclusive power of laying down their policies in respect to subjects within their own legislative
field. What policy was to be adopted for Delhi, whether that adopted in the province of Punjab or
of Bombay, was left to the Central Government. The exercise of this power amounts to making a
new law by a body which was not in the contemplation of the Constitution and was not
authorized to enact any laws. . He thus answered this question in the negative, because the policy
of those laws could never be determined by the law making body entrusted with making laws in
the present context for Delhi.
With these opinions, he held all three Acts ultra vires.
The minority view in the present case was expressed by the above two judges. The minority
based its view of the theory of legislative omnipotence of the British Parliament, and its
reflection in the Australian, the Canadian and the Indian Constitutional systems, which includes
power to delegate legislative function, subject to the condition of non-abdication. They were of
the view that the 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.

Fazl Ali, J.

Justice Fazl Ali has successfully delivered the most convincing argument in favour of delegation.
Along with the other judges, he ws of the opinion that delegation is in fact important, and his
justifications were based on the following lines.
It is a cardinal principle of our system of government that local affairs shall be managed by local
authorities and general affairs by the central authority. Such legislation is not regarded as a
transfer of general legislative power, but rather as the grant of the authority to prescribe local
regulations, according to immemorial practice, subject, of course, to the interposition of the
superior in cases of necessity.19 He also noted that the Act in question does not enact a new
law but merely transplants to the territory concerned, laws operative in other parts. He further
suggested that some safeguards should be implemented, such as a one year time period during
which the effectiveness of the delegated function can be judged. He was however of the opinion
that mere absence of the safeguard will not invalidate the said provision and it is thus intra
vires.The power delegated in the first instance, i.e. in the case of the Delhi Laws Act, 1912 was
ministerial in nature such delegation was neither unwarranted on principle nor without precedent.

19 Per Fuller J. in Stoutenburgh v. Hennick

He relies on the instance of Queen v. Burrah20. He adapts the language used there and a similar
reasoning is employed. In the present Act, as originally enacted, the agency which was to adapt
the laws was the Governor General. In 1912, the Governor-General exercised jurisdiction over
the whole of the territories the laws of which were to be adapted for Delhi. He further stated
that, Burrahs case has been accepted by this Court as having been correctly decided, and we
may well say that the impugned Acts are mere larger editions of Act XXII of 1869 which was in
question in Burrahs case.
Coming to the second Act, namely, the Ajmer-Merwara (Extension of Laws) Act, 1947, we find
that when it was enacted on the 31st December, 1947, the Government of India Act, 1935, as
adapted by the India (Provisional Constitution) Order, 1947, issued under the Indian
Independence Act, 1947, was in force. Under that Act, there were three Legislative Lists, called
the Federal, Provincial and Concurrent Legislative Lists. Lists I and II contained a list of subjects
on which the Central Legislature and the Provincial Legislature could respectively legislate, and
List III contained subjects on which both the Central and the Provincial Legislatures could
legislate. Section 100(4) of the Act provided that the Dominion Legislature has power to make
laws with respect to matters enumerated in the Provincial Legislative List except for a Province
or any part thereof. Section 46 (3) stated that the word Province, unless the context otherwise
required, meant a Governors Province. Therefore, section 100 (4) read with the definition of
Province, empowered the Dominion Legislature to make laws with respect to subjects
mentioned in all the three Lists for Ajmer-Merwara, which was not a Governors Province. The
Central Legislature was thus competent to legislate for Ajmer-Merwara in regard to any subject,
and it had also plenary powers in the entire legislative field allotted to it. Further, at the time the
Act in question was passed, the Dominion Legislature was simultaneously functioning as the
Constituent Assembly and had the power to frame the Constitution.
Finally, as far as the third Act is concerned, since it is an Act post-Constitution, he has relied on
Article 245 of the Constitution which lays down that subject to the provisions of this
Constitution, Parliament may make laws from the whole or any part of the territory of India, and
the Legislature of a State may make laws for the whole or any part of the State. Reliance was
also placed on Under article 246 (4), which states: Parliament has power to make laws with
respect to any matter for any part of the territory of India not included in [Part A or Part B]21 of
the First Schedule notwithstanding that such matter is a matter enumerated in the State List.
At the time, it was recognized that the Parliament derives power from the Constitution and has
the power to legislate with respect the Part C States and even though the country has adopted the
doctrine of separation of power, this will still not be a bar to the process of delegation. He thus
20 Supra ft. 4
21 Substituted with [a State] by the Constitution (Seventh) Amendment Act, 1956
(w.e.f. 1-11-1956)

concluded by stating that There can be no doubt that the powers which have been granted to the
Government are very extensive and the three Acts go farther than any Act in England or
America, but, in my judgment, notwithstanding the somewhat unusual features to which
reference has been made, the provisions in question cannot be held to be invalid.
His conclusions can be summed up as:
The legislature,
1. Must normally discharge its primary legislative function itself and not through others.
2. Can delegate and this power is ancillary to and necessary for the full and effective
exercise of its power of legislation
3. Cannot abdicate its legislative functions, and does not become a parallel legislature

Mukherjee, J.

The learned justice commented that it will be noticed that in all the three items of legislation,
mentioned above, there has been, what may be described, as conferment by the legislatures,
which passed the respective enactments, to an outside authority, of some of the powers which the
legislative bodies themselves could exercise; and the authority in whose favour the delegation
has been made has not only been empowered to extend to particular areas the laws which are in
force in other parts of India but has also been given a right to introduce into such laws, any
restrictions or modifications as it thinks fit.
As regards constitutionality of the delegation legislative powers, he commented that the Indian
Legislature cannot be in the same position as the omnipotent British Parliament and how far
delegation is permissible has to be ascertained in India as a matter of construction from the
express provisions of the Indian Constitution. It cannot be said that an unlimited right of
delegation is inherent in the legislative power itself. This is not warranted by the provisions of
the constitution and the legitimacy of delegation depends entirely upon its being used as an
ancillary measure which the legislature considers to be necessary for the purpose of exercising its
legislative powers effectively and completely. The legislature must retain in its own hands the
essential legislative functions which consist in declaring the legislative policy and laying down
the standard which is to be enacted into a rule of law and what can be delegated is the task of
subordinate legislation which by its very nature is ancillary to the statute which delegates the
power to make it. Provided the legislative policy is enunciated with sufficient clearness or a
standard is laid down, the courts should not interfere with the discretion that undoubtedly rests
with the legislature itself in determining the extent of delegation necessary in a particular case.
With these observation she said, Section 7 of the Delhi Laws Act, 1912, and S. 2 of the AjmerMerwara (Extension of Laws) Act, 1947, are wholly intra vires and The first portion of S. 2 of
the Part C States (Laws) Act, which empowers the Central Government to extend to any Part C

State or to any part of such State with such modifications and restrictions as it thinks fit any
enactment which is in force in a Part A State, is intra vires. The latter portion of the said section,
which empowers the Central Government to make provision in any enactment extended to a Part
C State, for repeal or amendment of any law (other than a Central Act) which is for the time
being applicable to that Part C State, is ultra vires.

Sastri, J.

The learned justice attempts to answer the first two questions together:
Section 7 of the Delhi Laws Act, 1912, fell within the general scope of the affirmative words of
section 22 of the Indian Councils Act, 1861, which conferred the law-making power on the
Governor General in Council and that the provision did not violate any of the clauses by which,
negatively, that power was restricted. The same line of approach lead the learned Justice to the
conclusion that section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, was also
constitutional and valid. This Act was passed by the Dominion Legislature of India, and the
governing constitutional provision was section 99 (1) of the Government of India Act, 1935.
The Indian Independence Act, 1947, authorised the removal of certain restrictions on the lawmaking powers of the Central Legislature and section 108 of the Constitution Act was omitted;
but the material words in section 99 (1) which granted the legislative power remained the same,
namely, may make laws for the whole or any part of the Dominion. No doubt, as between the
Dominion and the Provinces there was a distribution of legislative power according to the Lists
in Schedule VII, but such distribution did not affect the power of the Dominion Legislature to
make laws for what are known as Chief Commissioners Provinces, of which Ajmer-Merwara is
one. This was made clear by section 100 (4) read with section 46. Section 2 of the impugned Act
was, therefore a law which the Dominion Legislature was competent to make and the
restrictive words subject to the provisions of this Act had no application to the case, as no
provision was brought to their notice which affected the validity of the law. There was also some
confusion as to the scope and meaning of the words restrictions and modifications. He
dismissed these contradictions by stating that, however wide a meaning may be attributed to the
expression; it would not affect the constitutionality of the delegating statute.
Thirdly, section 2 of the Part C States (Laws) Act, 1950, is framed on the same lines as the other
two impugned provisions, save for the addition of a clause empowering repeal or amendment of
any corresponding law (other than a Central Act) which is for the time being in force in the State.
This additional clause, however, need not detain us, for, if there is no constitutional inhibition
against delegation of legislative power under the present Constitution, delegation can as well
extend to the power of repeal as to the power of modification and the Court cannot hold such
delegation to be ultra vires. The Constitutional validity of the additional clause thus stands or
falls with that of the first part of the section and the only question is: What is the position in
regard to delegated legislation under the present Constitution?

To answer this, the learned justice relies on the positions in America and U.K and states there is
no difference between the English and the American decisions on this point. In both countries it
is recognized that the correct way of resolving such problems is to look to the terms of the
constitutional instrument, and to find out whether the impugned enactment falls within the ambit
of the lawmaking power conferred on the legislature which passed the enactment and, if so,
whether it transgresses any restrictions and limitations imposed on such power. If the enactment
in question satisfies this double test, then it must be held to be constitutional.
He relies thus on the Constitution and just as the other justices have done, brings to light, at this
the context, Articles 245 and 246(4) of the Constitution. He states that the Act passed by
Parliament was in accordance with the prescribed legislative procedure, and hence there is no
reason why it should not be regarded as a law. Further there is nothing in these provisions which
could possibly attract the wrath of Part III of the Constitution. It should thus be considered valid.
He also dismissed the argument by the council with respect to the Latin maxim expressiounis est
exclusio alterious. He was of the opinion that an express provision was not necessary for the
process of delegation. Further, the maxim is not one of universal application, and it is
inconceivable that the framers of the Constitution could have intended to deny to the Indian
Legislatures a power which, as we have seen, has been recognized on all hands as a desirable.
With these observations, he held all three Acts in their entirety as valid an intra vires.
The opinions delivered by the judges in the present case went on to shape the way the concept of
delegation was viewed in India. The Supreme Court took the following view and the 7 opinions
were based on the same:

Separation of powers 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 cannot completely abdicate itself by creating a parallel authority.

Only ancillary functions can be delegated.

There is a limitation on delegation of power. Legislature cannot delegate its essential

functions. Essential functions involve laying down the policy of the law and enacting that
policy into binding rules of conduct.


From a study of the above judicial opinions it is humbly submitted that there is not much
material difference between the majority and minority opinion in the present case.
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 has to be noticed here that, the power of
abdication22 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 legislation23. 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 the subsequent to this case, there was still some confusion in the air
regarding the limits of delegation. The first of such cases which cleared the air was theGwalior
Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax 24. The Standard test
or the Principle and policy test was laid down by Khanna, J.
Principle and Policy Test:
When the legislature confers powers on an authority to make delegated legislation, it must lay
down policy, principle or standard for the guideline for the authority concerned. The decisions
regarding the policy matters still rest with the legislature whereas only ancillary decision making
functions are delegated.
At about the same time Mathew, J. put forward the Abdication test.
Abdication Test:
As long as the legislature can repeal the parent act conferring power on the delegate, the
legislature does not abdicate its powers. This test was however not accepted. He subsequently
22 Meaning : the act of renouncing or abandoning privileges or duties especially connected
with high offices Blacks Law Dictionary, 9th Edn., 2009

23 I.P.Massey, Administrative Law, Eastern Book Co. 7th edn.,2008 at Pg102

24 (1974) 4 SCC 98

enforced the same in N.K.Papiah v. Excise Commissioner25. Though at this point it is incorrect
to test the validity of these tests, it is trite to say that both have their merits and demerits which
can clearly be seen from the jurisprudence of delegation in the Indian setting.
Finally the one issue that this case has however not dealt with is Who exactly decides what the
essential functions are?
Vast powers of delegated legislation have been recognised and affirmed in the case with a
principled caveat that the essential features of legislative power identified as the power of policymaking accompanied with annexation of sanctions may not be delegated away. This caveat is
seldom brought into play by the Supreme Court of India26. The Apex court has time and again
stated that it is the policy matters that constitute the important non-delegable functions. However
this does not provide a fool-proof guarantee to identify the legislative functions that can be
delegated. It remains for the courts to decide, in each case as and when the situation arises, what
the essential non-delegable functions are and what are not. Being recognized as the sentinel on
the qui vive and because of the paramount obligation imposed upon it by Article 141 of the
Constitution, which declares that the law made by the Supreme Court is the law of the land, the
Apex court has been vested with this all important duty in the hope that justice should not only
done but is manifestly and undoubtedly seen to be done27.
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 need of
the 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.
25 (1975) 1 SCC 492
26 Upendra Baxi , The Myth And Reality Of Indian Administrative Law as an
introduction to I.P.Masseys Administrative Law, 7th Edn..2010
27 Per Lord Chief Justice Hewart in R v. Sussex Justices, ex parte Mc Carthy

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

The governmental power is very much essential for a nation to preserve its resources and
progress among the competing nations. The source of power is the constitution which the people
have given to themselves. It is well established that the concentration of power is detrimental to
the welfare of peoples. Even for the sake of convenience of the administration the power has to
be distributed among different organs of the government. The main task of the legislature is to
pass the legislation. There is a trend in practice at the present time that only a small part of the
total legislation originates from the legislature. The bulk of the legislation is promulgated by the
Executive as a delegate of the legislature, and this is known as delegated legislation. Normal
practice is that the Legislature passes a law covering general principles relating to the subject
matter and confers rule-making power on the Government, or on some other agencies of its
choice. The delegation of legislative power is permissible only when the legislative policy is
adequately laid down and the delegate is empowered to carry out the policy within the guidelines
laid down by the legislature.
According to the doctrine of separation of powers, the legislature cannot exercise executive or
judicial power; the executive cannot exercise legislative or judicial power; and the judiciary
cannot exercise the other two powers. The Presidential form of Government in the U.S.A is
based on the doctrine of separation of powers. But this doctrine is not strictly applied in the
United States, and some exceptions to this doctrine are recognized in the Constitution of United
States itself. In India, the parliamentary form of Government operates and is based on coordination of the executive and the legislature. The Supreme Court in Ram Jawaya Kapur v. State
of Punjab, held that the Constitution had not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different branches of the government had
been sufficiently differentiated and consequently it could be very well said that our Constitution
did not contemplate assumption by one organ of the State of functions that essentially belong to
another. First attempt was made to reconcile the delegation of legislative power with the
doctrine of separation of power by using the word quasi to name quasi-legislative power.
No matter, to soften a legal term by a quasi is a time-honoured lawyers device, yet, in the
sphere of administrative process it becomes illogical to grant legislative and judicial powers to
administrative agencies and still to deny the name. Therefore, now it is being increasingly
realized that the cult of quasi has to move from any theoretical prohibition to a rule against

unrestricted delegation circumscribed by the power of judicial review under the compulsion of
modern government. Montesquieu himself never used the word separation in his writing.
Therefore, not impassable barriers and unalterable frontiers but mutual restraint in the exercise of
power by the three organs of the state is the soul of the doctrine of separation of powers.