ADMINSTRATIVE LAW PROJECT ON

Delhi Laws Act case and its impact- A growth of Administrative

Law in India: An analysis

Submitted To:
Dr. Kaumudhi Challa
(Faculty of Administrative Law)

Submitted By:
Chandrashekhar Sharma
Semester – VI
Section – B, Roll No: 49
B.A. LLB (HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

NAYA RAIPUR, (C.G.)

[I]
 DECLARATION

I, Chandrashekhar Sharma, have undergone research of the project work titled ‘Delhi Laws Act
case and its impact –A growth of Administrative law in India: An analysis’ , as a student of
Administrative Law hereby declare that-this Research Project has been prepared by the student
for academic purpose only, and is the outcome of the investigation done by me and also prepared
by myself under the supervision of Dr. Kaumudhi Challa, Hidayatullah National Law University,
Raipur. The views expressed in the report are personal to the student and do not reflect the views
of any authority or any other person, and do not bind the statute in any manner.

I also declare that this Research Paper or any part thereof has not been or is not being submitted
elsewhere for the award of any degree or Diploma. This report is the intellectual property of the
on the part of student research work, and the same or any part thereof may not be used in any
manner whatsoever in writing.

Chandrashekhar Sharma

Roll No-49

Section - B

[II]
 CERTIFICATE

This is to certify that Chandrashekhar Sharma, Roll No. - 49, student of Semester - VI of
B.A.LL.B. (Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has
undergone research of the project work titled “Delhi Laws Act case and its impact –A growth
of Administrative law in India: An analysis”, in partial fulfilment of the subject Jurisprudence.
His performance in research work is up to the level.

..……………………………..
Place: New Raipur Dr. Kaumudhi Challa.
Date: 06.03.2018 (Faculty- Administrative Law)

[III]
 ACKNOWLEDGEMENTS

I feel highly elated to work on the project “Delhi Laws Act case and its impact –A growth of
Administrative law in India: An analysis”. The practical realisation of the project has
obligated the assistance of many persons. Firstly I express my deepest gratitude towards Dr.
Kaumudhi Challa, Faculty of Jurisprudence, to provide me with the opportunity to work on this
project. Her able guidance ship and supervision in terms of his lectures were of extreme help in
understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.

Chnadrashekhar Sharma

Roll No-49

Section - B

[IV]
 TABLE OF CASES

1. Keshvananda Bharti v. State of Kerla (1973 AIR , SC 1461)

2. Re Delhi Case ( AIR 1951, SC 332)
3. Indra Nehru Gandhi v. Raj Narayan (AIR 1975 SC 2299)
4. Golak Nath v. State of Punjab (AIR 1967 SC 1643)
5. Bandhva Mukti Morcha v. Union Of India (1984 AIR , SC 802)
6. Mali Karjuria v. State of Andhra Pradesh (AIR 1990 SC 1251)
7. Supremecourt Employees , Welfare Association v. Union Of India (AIR 1990 SC 334)
8. Daport (India) Ltd. v. Sirs (AIR 1980)

STATUES

1. Indian Constitution, United States of America Constitution , French Constitution &

United kingdom Constitutional Reform Act (2005).

[V]
 TABLE OF ABBREVIATION

& And

AIR All India Reporter

Edn. Edition

Etc. Et Citra.

Govt. Government

Hon’ble Honorable

HC High Court

P. Page Number

SC Supreme Court

SCC Supreme Court Cases

Vol. Volume

v. Versus

www world wide web

[VI]
 TABLE OF CONTENTS

Declaration I
Certificate II
Acknowledgement III
Table of Cases IV
Chapter – 1 Introduction…………………………………………………………………………1
Research methodology…………………………………………………………….…………….2
Problem ..................................................................................................................................2
Rationale ................................................................................................................................2
Objectives ...............................................................................................................................2
....................................................................................................................................................
Review of Literature ..............................................................................................................3
Concept of study………………………………………………………………………………………………………………………….4
Nature of Study......................................................................................................................4
Sources of Data .....................................................................................................................4
Chapterisation .......................................................................................................................4
Contribution of Research ......................................................................................................5

Mode of Literature………………………………………………………………………….5

Time Schedule……………………………………………………………………………….5

Limitation……………………………………………………………………………………5

Chapter – 2 ……… ……………………………………6-11

Chapter – 3……………………..………………………………………12-15
Chapter – 4 ………….……………16-23
Chapter-5…………………………………………24-25
Conclusion …………………………………………………………………………………….26
Bibliography/ References……………………………………………………………………..27

[VII]
 CHAPTER- 1

INTRODUCTION

Delegated legislation is one of the most inevitable parts of administration. Along with
being most significant, it was one of the most debatable issues in India. According to the
traditional theory, the function of the executive is administering the law enacted by legislature
and in ideal state the legislative power must be exclusively dealt by the legislature. But due to
increase in administrative function and shifting of the concept to welfare state, they have to
perform certain legislative functions.

If we see around we can realize that due to shift to welfare state, there has been increase in
the administrative functions of the country. After independence there was a lot of confusion
regarding delegation of legislative power to the executive. To clarify this: the president under article
143 of the constitution referred the matter to the apex court and it laid down certain guidelines
clarifying the position. The paper analysis this landmark judgment of 7 judges bench wherein every
judge had a difference of opinion.

[VIII]
 REASEARCH METHODOLOGY

STATEMENT OF PROBLEMS

The Main interpretation of the concept of Separation of Power is the ‘Water Tight
Compartmentalization’ of the powers and function of the three organs of the Government. The
Legislature to make Laws, the executive to implement those laws and the Judiciary to implement
those laws as the guardian of the constitution. These three organs form the three pillars of the
State. However, it is practically impossible as there is an ever presence of Delegated Legislation.
There are many of the reasons stated in the Project as to why, these strict Separation of Powers
cannot be followed.

RATIONALE OF THE STUDY

Both Separation of Power and Delegated Legislation form an integral part of not only Indian but
U.S, French & British Constitution as well which is mostly Un-written. These needs an in-depth
research as to if the constitution is the Supreme Law of the Land, and why the Doctrine of
Separation of Power is not followed, giving rise to Delegated Legislation.

RESEARCH OBJECTIVES

• To know the meaning, nature & origin of Separation of power.

• To know the impact of Delhi Laws Act case and its significance in administrative law.

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 REVIEW OF LITERATURE

1. Abrahamyohnnes & Destag Michael : Sepration of Power as a Limitation

Abyssinia Law ,2012,3.

It deals with the Limitation on on Administrative Law, imposed by Separations of Power. As

Legislature Executive and Judiciary are promptly divided with division of Power, imposing
restriction of on the delegation of power. This journal clearly states the point where three organs
of the Government should not intermingle with each other.

2. Charles H. Kinane , Adminstrative Law : Some Observation on Separation of Power

JSTOR American Bar Association (1952) 19
Professor Kinnane has written this provocative article to "bury the hoary old myth" that
blending legislative and judicial functions in one administrative agency is a violation of the
doctrine of separation of powers. His argument is that the purpose of the separation of powers in
our constitutions?state and national?is to preserve liberty and that, since the administrative
agencies are creatures of the legislature, and are subject to its will, there is no danger of
destroying liberty when administrative agencies are set up to carry out what the legislature itself
might do. Professor Kinnane is probably right in saying that he has not succeeded in burying the
con troversy \about administrative agencies, but his article should serve to stimulate the minds of
lawyers who have long been concerned with the problem.

3. Tej Bahadur Singh : Principal of Sepration of Power and Concentration of Authority

JSTOR 1996,35

The doctrine of Separation of Powers deals with the mutual relations among the three organs of
the Government namely legislature, executive and judiciary. The origin of this principle goes
back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the
functions of the Government into three categories viz., deliberative, magisterial and judicial
Locks categorized the powers of the Government into three parts namely: continuous executive

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power, discontinuous legislative power and federative power. “Continuous executive power”
implies the executive and the judicial power, „discontinuous legislative power‟ implies the rule
making power, „federative power‟ signifies the power regulating the foreign affairs.

CONCEPT OF STUDY
Del’spirit de lois – Means spirit of the law, given by a French Writer Montesquieu in (1748).
Civil Law- Common Law of England
Federative Power – The Power to Conduct Foreign Affairs.
Discontinuous Legislative Power – The meaning of the Concept is where Legislative works
continuously without delegating any power.
Continuous Executive Power - It means those power which include all other power which now
we call executive and judicial.

NATURE OF STUDY
This project is based upon doctrinal method of research. This project has been done after a after
a thorough research based upon intrinsic and extrinsic aspects of the project.

SOURCES OF DATA
The sources of data in this research project are primarily analytical and based on secondary
source of data. The following secondary sources of data have been used in the project-

1. Articles 2.Books

3. Journals 4. Websites

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CONTRIBUTION OF YOUR STUDY

As a student of law, it is very essential to understand the Separation of Power of the three organs
of the Government. It will further help us to understand the basic concept of Administrative Law
but the working of Constitutional Government as well.

MODE OF CITATION

The 19th edition of the Bluebook has been used for standard formatting uniformly throughout the
project.

LIMITATION
Due to the limitation on time the project only limits itself to the overall practicability of the
doctrine in the administrative working in the governments.

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 CHAPTER 2- SEPARATION OF POWERS, AN INTRODUCTION TO DELEGATED
LEGISLATION

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.”

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

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
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.”[ii]

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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.[iii]The Supreme Court in Ram Jawaya Kapoor v. State of Punjab[iv], 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.[v] 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 law-
making 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
interaction.[vi] 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 powers1.

1
Lawoctopus.com/delhi-laws-case

Page | 14
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
legislation.

STATUS BEFORE CONSTITUTION:

A lot of decisions from privy councils to Supreme Court deal with the same. This discipline can be
read into three times – pre independence, Post independence and post constitution. In pre constitution
era when Privy Council was the highest court of appeal from India till 1949 question of
constitutionality of delegation of legislative power came before it in case of Queen v Burah3. The act
in dispute gave certain powers to Lt Governor namely – the power to bring the act in effect,
determine what laws were to be applicable and power to extend the application of the act (Sec. 9).
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, Jaintia and Naga Hills in Garo Hills. . The question was
whether giving Lt Governor power to extend the application of the law is delegation of power? Privy
Council observed that Indian legislature is not an agent or delegate as against Calcutta High Court4
but was intended to have plenary powers of legislation, and of the same nature of the parliament
itself. It was observed that Indian legislature had exercised its judgment as to the place, person, law,
powers and what the governor was required to do was to make it effective upon fulfilment of certain
conditions. This is called conditional legislation which was upheld by the court. The question of
permissible limits of legislative power became important in Independent India. Just on the eve of
independence, the federal court had held in Jatindra Nath v Province of Bihar5 that there could be
no delegated legislation in India beyond conditional legislation. Provincial Govt. could by
notification was allowed to extend the time for which the Bihar Maintenance of Public Order Act

Page | 15
1948 was to remain. The court held this power non-delegable. There was a lot of confusion regarding
delegated le gislation after these cases. The question of moot was whether the legislature of
Independent India should be restricted to such rules or should it be given greater freedom? The next
step of confusion was whether India should follow American model where unlimited power cannot
be delegated or like that of England where as much power can be delegated? It was left open to the
courts to follow either of the models because of similarities between the US and UK with India.
Further, Indian constitution is silent on the issue whether legislature can delegate or not and hence,
such issues could not possible be decided with keeping constitution as the basis.2

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.

2
https://administrativelaw.uslegal.com/administrative-agencies/separation-of-powers-of-government

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 CHAPTER – 3 THE DELHI LAWS ACT CASE

HISTORY OF THE CASE

To understand the present case better, we have to divide Indian era into basically three: the pre
independence, post independence and the post constitution.

The authority regarding delegated legislation in the pre-independence period was primarily held
by Queenv. Burrah[viii]. In this case, the Act in question (Act XXII of 1869) deals with the
Governor General’s 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…..”[ix] .
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

Page | 17
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
Act?

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

“The Provincial Government may, by notification in the official gazette, extend with such
restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof, any
enactment which is in force in any part of British India at the date of such notification”

• 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

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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 Bihar[x] (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
relaxed.[xi] 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. Commonwealth[xii] , “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
power…”[xiii] The situation in Canada has been highlighted by the justices by means
of Hodge v. The Queen[xiv]. 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 delegarewas relied upon to support the objection.

In the Indian context, to explain the situation in the pre-independence period, they have relied on
Dicey’s 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

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their freedom of action is controlled by their subordination to the Parliament of the United
Kingdom.”

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
legislation[xv]” which according to them the Legislatures were competent to enact.

JUDICIAL OPINION

• 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:

(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

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its legislative body and so far as this Chief Commissioner’s 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
Province

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. Burrah[xvi]. 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.
Section 94 of that Act enumerates the Chief Commissioner’s 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 Commissioner’s Province and therefore the Central Legislature was the only law-making
authority for the Chief Commissioner’s Provinces. The Ajmer-Merwara Act was passed under
the Government of India Act as adapted by the Indian Independence Act. Although by that Act

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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.

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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 Justice’s opinion “the section conferred a
kind of a vague, wide, vagrant and uncanalised authority on the Governor- General”[xvii]. 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

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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 1935[xviii] different provinces had
the 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.3

3
www.manupatra.com/roundup/333delhi_laws_act_case

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 • 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.”[xx]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.
He relies on the instance of Queen v. Burrah[xix] . 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, Burrah‘s 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 Burrah‘s 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
Page | 25
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 Governor’s 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 Governor’s 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][xxi] 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
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,

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 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 Ajmer-
Merwara (Extension of Laws) Act, 1947, are wholly intra vires and The first portion of S. 2 of

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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 law-
making 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.
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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.”[xxii]

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 expressio unis 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.

• Bose, J.

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The learned justice who was in favour of delegated legislation, also concurred with the opinion
above.

He has briefly though explicitly stated that he is in full concurrence with the majority. The Indian
Parliament can legislate along the lines of Queen v. Burrah[xxiii], that is to say, it can leave to
another person or body the introduction or application of laws which are, or may be, in existence
at that time in any part of India which is subject to the legislative control of Parliament, whether
those laws are enacted by Parliament or by a State Legislature set up by the Constitution. But
delegation of this kind cannot proceed beyond that; it cannot extend to the repealing or altering
in essential particulars laws which are already in force in the area in question. He was also of the
opinion that the term “modification” does not necessarily mean a change in policy, it merely
means an alteration within the permissible limits set by the policy. This keeps the policy intact
and at the same time introduces sufficient flexibility to suit the different needs of the society.

He thus held Section 7 of the Delhi Laws Act, 1912, and S. 2 of the Ajmer-Merwara (Extension
of Laws) Act, 1947, are wholly intra vires. Further, 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.

• Das, J.

The opinions of the learned justice can be summarized as follows:

• The principle of non-delegation of legislative powers founded either on the doctrine of

separation of powers or the theory of agency has no application to the British Parliament
or the legislature constituted by an Act of the British Parliament;

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 • In the ever present complexity of conditions with which governments have to deal, the
power of delegation is necessary for, and ancillary to, the exercise of legislative power
and is a component part of it;

• The operation of the act performed under delegated power is directly and immediately
under and by virtue of the law by which the power was delegated and its efficacy is
referable to that antecedent law;

• If what the legislature does is legislation within the general scope of the affirmative
words which give the power and if it violates no express Condition or restriction by
which that power is limited, then it is not for the court to inquire further or enlarge
constructively those conditions or restrictions;

• While the legislature is acting within its prescribed sphere there is, except as herein after
stated, no degree of, or limit to, its power of delegation of its legislative power, it being
for the legislature to determine how far it should seek the aid of subordinate agencies and
how long it shall continue them, and it is not for the court to prescribe any limit to the
legislature’s power of delegation;

• The power of delegation is however subject to the qualification that the legislature may
not abdicate or efface itself, that is, it may not, without preserving its own capacity intact,
create and endow with its own capacity a new legislative power not created or authorised
by the Act to which it owes its own existence.

• The impugned laws may also be supported as instances of conditional legislation within
the meaning of the decision in Queen Burrah[xxiv].

With these opinions, he held all sections in question in the present case valid in their entirety.

The majority in this case has held all the sections to be perfectly valid. The majority based its
opinion on the maxim expressio unis est exclusion alterious[xxv] and ruled that an express
provision permitting delegation, contained in article 357 would mean uncontrolled legislation

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was not permitted under the Constitution. Essential functions could not be delegated under any
condition.

SUMMARY OF THE DECISIONS

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.

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 CONCLUSION

The case has been successful in achieving two ends:-

• It legitimized delegation of legislative power by the legislature to administrative organs;

• It imposed an outer limit on delegation by the legislature.

It is thus submitted that the legitimacy of delegation is no longer a question of dispute. The only
issue that arises is with respect to the limits imposed upon the delegation. Several years after the
case at hand it is safe to say that this is an ongoing process. As times change and as the 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.

The case specifically lays down that the British or the American model cannot be implemented
as such in India. The Indian system, though it has borrowed extensively from other systems
round the world, deserves better. It is humbly submitted by this author that, the position in this
case be regarded as the “Indian model on Delegated Legislation” set forth for other countries to
consider.

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 BIBLIOGRAPHY

Books

• U Padhya : Administrative Law ,Central Law Agency 8th Edition.

• Massey I.P , Administrative Law.
• C.K Takwani, Lecture on Administrative Law , E.B.C 4th Edition.
• C.K Thakker , Administrative Law E.B.C .

Reference works / Leading articles

• https://www.lawctopus.com/academike/doctrine-of-separation-of-powers.
• http://racolblegal.com/administrative-law-with-special-reference-to-doctrine-of-separation-
of-powers.
• https://administrativelaw.uslegal.com/administrative-agencies/separation-of-powers-of-
government
• http://www.abyssinialaw.com/about-us/item/302-separation-of-powers-as-a-limitation-on-
administrative-law.
• https://www.lawctopus.com/academike/separation-of-powers-and-judicial-activism-in-india.
• https://www.legalbites.in/law-notes-administrative-law-separation-powers.
• http://www.ebcwebstore.com/product_info.php?products_id=859.

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