NAME DIVYA PANDEY

SEMESTER V
ROLL NO. 1778
SUBJECT ADMIISTRATIVE LAW- (CA-2)
ANSWERS

In Re Delhi Laws Act, case 1951 was the first leading case decided by the Supreme Court on
delegated legislation after the constitution came into force. A reference was made to the Supreme
Court by the President of India under Article 143 of the Constitution. In the circumstances
enumerated therein Central Government was authorised by Section 2 of the Part ‘C’ States ‘laws’
Act, 1952 to extend the laws to any part ‘C’ state with such notifications and restrictions as if
thinks fit, any enactment in force in a part a state well doing so it could repeal or amend any
corresponding law “other than a Central Act” which might be in force in part C state. The
Supreme Court was called upon to decide the legality of aforesaid provision. All the seven
judges who heard by reference gave their separate opinions “exhibiting a cleavage of judicial
opinions” on the question of limits to which the legislature in India could be permitted to
delegate its legislative power. The majority held the provision valid subject to two limitations:

1.The executive cannot be authorised to repeal a law in force and thus, the provision which
empower the central government to repeal a law already in force in the part C state was bad.

2. By exercising the power of modification, the legislative policy should not be changed and
thus, before applying any law to the part C state the central government cannot change the
legislative policy.

Importance of Delhi laws case cannot be underestimated, as on the one hand it permitted
delegation of legislative powers by the legislature to executive while on the other hand it
demarcated the extent of such permissible delegation of powers by the Legislature. Principle
formulated in this case by the seven judges give their separate opinions many a time a question is
asked whether any principal was formulated by the majority opinion answer is not simple as
there is difference of opinion amongst jurist on this point.

There was a similarity in the outlook evidenced in the opinions.

One, keeping the exigencies of the Modern Government in view, Parliament and state legislature
in India need to delegate legislative power if they are to be able to cope with the multitudinous
problems facing the country for it is neither practicable nor feasible to except that each of the
legislative bodies could turn out complete and comprehensive legislation on all subjects that
need to be legislated upon.

Second, since legislatures derive their powers from the written Constitution which creates them,
they could not be allowed the same freedom as the British Parliament in the matter of delegation
some limits should be set on their capacity to delegate. The major difficulty was, and it was on
this point that the judges differed where to set the limit and what was the permissible counters
within which and Indian legislature could delegate its legislative powers.

Facts and History of the Case (in detail):

Indian era can be divided into three phases to understand the case. They are: pre-independence,
post-independence and post constitution.

In the case of Queen v. Burrah, the Privy Council primarily held regarding the constitutionality
of delegated legislation in the first phase i.e., pre-independence period.

Pre-independence period- The Lt. General was granted certain power by the act in dispute. The
power was for regarding the act into effect and to determine which law were applicable and the
power of extending the application of the said Act. The question which was raised before the
Privy Council was whether the power to extend the application of Act which was granted to Lt.
General is delegation of power.

It was observed by the Privy Council that the Indian legislature is not an agent. It is also not a
delegate against the High Court of Calcutta but it was intended on having the legislature’s
plenary power and parliament’s power of same nature as itself. The court held that the
aforementioned powers were conferred to Lt. General only on the fulfilment of some conditions.
Therefore it was a conditional legislation which is different from delegated legislation.

It was also stated by the court 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…..”

 Substantive delegation was laid by this case which means that if some functions which are
important and are void in India, then their delegation needs to be conditional. After many cases
on delegated legislation, the confusion was always there. A question was raised before the moot
was whether the delegation of legislative power should be restricted as followed in America or it
should be free as followed in England where delegation of much power could happen. The court
was given the freedom to chose either as there are similarities between the UK and US with
India. Also, the Constitution of India is silent on the question of legislature to delegated therefore
the constitution can be made the basis for the issues.

The President of India asked the court’s opinion under Article 143 of the Constitution of India to
remove the doubts regarding the validity of laws which contain such delegation.

Court’s opinion
(i) In the first Issue relating to Section 7 or any other provision, which ultra vires the
legislature, the Act delegated the authority to the provincial government to the Delhi
area with some restrictions and modifications in any parts of the British India laws.
The Supreme Court held section 7 as valid by the majority of opinion.
(ii) In the second issue relating to Ajmer Merwara (Extension of Laws) Act, 1947, the
Act delegated the power to the Central Government to the extent to the provinces
with some modification and restriction as much as it fits in the Act, and again the
Supreme Court held this section 2 to be Valid.
(iii) Part C states automatically come under the Central Government without having their
legislature. So, the Parliament has to legislate them somehow or other. The delegated
power was given to the Central Government to the extent of the Part C states with
some modification and restriction as much as it can be in force to any Part A states.”
The Central Government has also delegated some exclusive powers to like to repeal
the Act or to amend any corresponding laws which applied to the Part C States. The
Supreme Court kept this section valid till modification and restriction but when it
comes to repeal or amend any act or any laws, it goes invalid. So, the Supreme Court
declared it void because the laws were applicable to Part C and held to be an essential
function and delegation would amount to the excessive delegation on part of
Parliament.

Based on the opinion of the seven judges (which the researcher is going to talk about it
further), Supreme Court decided their Judgment:
 1. “Separation of Power” is not presented as something related to the Indian Constitution
from its inception.

2. Indian Parliament was never a representative of anyone. Hence, the doctrine of “delegatus
non potest delegare” (no transfer of power can be anymore transferred) cannot be held to be
applying here.

3. Parliament cannot relinquish itself by making a parallel authority.

4. Only auxiliary capacities or non-essential tasks can be given.

5. There's a restriction on the giving of authority. The Legislative powers should not transfer
its vital processes to determine the legislation's policy and to enforce it into definitive
standards of behaviors.

6. Overall, the judgment legitimized the delegation of the legislative power by the legislature
to the administrative organ/ it gives an overall limit on delegation by the legislature.

GLOBALISATION

Today in India, the administrative process has grown so much that it will not be out of place to
say that today we are not governed but administered. In this context, the Law Commission of
India rightly observed the Rule of law and Judicial review acquire greater significance in a
welfare state. The vast amount of legislation which has been enacted during the last three years
by the union and states, a great deal of which impinges in a variety of ways on our lives and
occupations. Much of it also confers large powers on the executive. The greater, therefore, is the
need for ceaseless enforcement of the Rule of law, so that the executive may not, in a belief in its
monopoly of wisdom and its zeal for administrative efficiency, overstep the bounds of its power
and spread its tentacles into the domains, well the citizen should be free to enjoy the Liberty
guaranteed to him by the Constitution.

Observations of Law Commission are no less relevant today when India has adopted the policy
of liberalization, privatization and globalization in which administrative law has developed
international dimensions. Though state is now withdrawing from business, yet its functions as a
facilitator, enabler and regulator are bound to increase. Growth of new centers of economic
power which often exercise power in total disregard of the fundamental rights of people,
especially of the disadvantaged sections of society, will put emphasis on the development of new
norms of Rule of law and judicial review for reconciling economic growth with social justice. In
recent times a new branch of administrative law is emerging, which is popularly called as Global
Administrative Law. According to this the WTO is dictating guidelines on subsidiaries, facilities
and services to the people in different countries. The banks have also not been spared from the
interference of the WTO guidelines. Thus, it may be submitted, that due to the emerging global
administrative law, in the near future there is every possibility for the necessity to re look into the
reasons for growth of administrative law.

Thus defined, administrative law attempts to regulate administrative space, domestic and global,
in order to infuse fairness and accountability in the administrative process necessary for
securing equity and inclusiveness in the domestic and world order. Through the In Re Delhi
case, the inclusiveness was thus exercised as the executive was involved adequately in the
legislation of the framework of laws and regulations. It can be concluded that administrative law
is that portion of law which determines the organization, powers and duties of administrative
authorities, administrative agencies, quasi administrative authorities and the law that governs the
judicial review of administrative activities. Accordingly, the delegated legislation through the
above-discussed case, was instrumental in determining the duties and quasi-administrative
agengies for the smooth functioning of the nation’s setup.

Administrative law goes beyond legalism and the presence a principled regulation of
administrative space, whether domestic or global, which can be practically regulated for the
expansion of human freedoms. A crucial example of which is the In Re Delhi case. Therefore,
today, Administrative law represents the way of conceptualizing and articulating a new domestic
and global social economic order.

In conclusion, doctrine of separation of powers in today’s context of liberalization, privatization

and globalization cannot be interpreted to mean either separation of powers is checked in balance
or principle of restraint, but community of powers exercised in the spirit of cooperation by
various organs of the state in the best interest of the people. The instrumental case of In Re Delhi
thus helped India to be one of the nations exercising this delicate balance.