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Cases on delegated

legislation
In re Delhi Laws Act AIR 1951 SC 332

•Is it permissible for the legislature to


delegate legislative power to a
subordinate authority?
• Limits within which this could be done?
• Reference was made by the President of India under Article 143
of the Constitution asking the Court‘s opinion on three
questions:
• “(1) Was Section 7 of the Delhi Laws Act, 1912, or any of the
provisions thereof and in what particular or particulars or to
what extent ultra vires the legislature which passed the said
Act?”
• Section 7 of the Delhi Laws Act, 1912 read: ―The Provincial
Government may, by notification in the Official Gazette, extend
with such restrictions and modifications as it thinks fit to the
Province of Delhi or any part thereof, any enactment which is in
force in any part of British India at the date of such notification.‖
• “(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947,
or any of the provisions thereof and in what particular or
particulars or to what extent ultra vires the legislature which
passed the said Act?”
• Section 2 of the Ajmer-Merwara (Extension of Laws) Act,
1947 read: “Extension of Enactments to Ajmer-Merwara. -
The Central Government may, by notification in the Official
Gazette, extend to the Province of Ajmer-Merwara with
such restrictions and modifications as it thinks fit any
enactment which is in force in any other Province at the
date of such notification.
• “(3) Is Section 2 of the Part “C‟ States (Laws) Act, 1950, or any of the
provisions thereof and in what particular or particulars or to what
extent ultra vires the Parliament?”
• Section 2 of the Part “C” States (Laws) Act, 1950 read: “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.
• MUKHERJEA, J. - 273. The necessity of seeking the advisory
opinion of this Court is stated to have arisen from the fact
that because of the decision of the Federal Court in Jatindra
Nath Gupta v. Province of Bihar [AIR 1949 FC 175], which
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 its amounting to a
delegation of its legislative powers to an extraneous
authority, doubts have arisen regarding the validity of the
three legislative provisions mentioned above, the legality of
the first and the second being actually called in question in
certain judicial proceedings which are pending before some
of the High Courts in India.
• 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 favor
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.
• The controversy centres round the point as to whether such
delegation was or is within the competency of the particular
legislature which passed these enactments.
• The contention of the learned Attorney-General, who
represents the President of India, in substance is that
a legislature which is competent to legislate on a
particular subject has the competence also to
delegate its legislative powers in respect of that
subject to any agent or external authority as it thinks
proper.
• The extent to which such delegation should be made
is entirely a matter for consideration by the legislature
itself and a court of law has no say in the matter.
• There could be, according to the learned Attorney-
General, only two possible limitations upon the
exercise of such right of delegation by a competent
legislative body. One is that the legislature cannot
abdicate or surrender its powers altogether or bring
into existence a new legislative power not authorised
by the constitutional instrument.
• The second is that if the constitutional document has
provided for distribution of powers amongst different
legislative bodies, one legislature cannot delegate to
another, powers, which are vested in it, exclusively
under the Constitution.
• It is argued that, save and except these two
limitations, the doctrine of inhibition of
delegation by legislative authority has no place
in a Constitution modelled on the English system
which does not recognise the principle of
separation of powers as obtains in the American
system. These questions are of great
constitutional importance and require careful
consideration.
• In America the rule of inhibition against
delegation of legislative powers is based
primarily upon the traditional American doctrine
of ―separation of powers.
• Another principle is also called in to aid in
support of the rule, which is expressed in the
well-known maxim of private law, ―delegatus
non potest delegare, the authority for the same,
being based on one of the dicta of Sir Edward
Coke.
• The other doctrine that is invoked in support of the
anti-delegation rule is the well-accepted principle of
municipal law, which prevents a person upon whom a
power has been conferred, or to whom a mandate has
been given, from delegating his powers to other
people.
• The legislature is supposed to be a delegate deriving its
powers from the ―people who are the ultimate
repository of all powers, and hence it is considered
incapable of transferring such powers to any other
authority
• These doctrines, though well recognised in theory, have a restricted
and limited application in actual practice.
• Mr Justice Story said- ―But when we speak of a separation of the
three great departments of Government and maintain that
separation is indispensable to public liberty, we are to understand
this maxim in a limited sense. It is not meant to affirm that they
must be kept wholly and entirely separate and distinct, and have no
common link of connection or dependence, the one upon the other,
in the slightest degree. The true meaning is that the whole power of
one of these departments should not be exercised by the same
hands which possess the whole power of either of the other
departments: and that such exercise of the whole would subvert the
principles of free Constitution.
• As said above, a considerable amount of flexibility was
allowed in the practical application of these theories
even from early times. The vast complexities of social
and economic conditions of the modern age, and the
ever growing amount of complicated legislation that is
called for by the progressive social necessities, have
made it practically impossible for the legislature to
provide rules of law which are complete in all their
details. Delegation of some sort, therefore, has
become indispensable for making the law more
effective and adaptable to the varying needs of
society
The question is what the limits within which such
conferment are or bestowing of powers could be
properly made?

• If the legislature hands over its essential


legislative powers to an outside authority, that
would, in my opinion, amount to a virtual
abdication of its powers and such an act would
be in excess of the limits of permissible
delegation.
• The essential legislative function consists in the determination or
choosing of the legislative policy and of formally enacting that
policy into a binding rule of conduct. It is open to the legislature to
formulate the policy as broadly and with as little or as much detail
as it thinks proper and it may delegate the rest of the legislative
work to a subordinate authority who will work out the details
within the framework of that policy.
• So long as a policy is laid down and a standard established by statute
no constitutional delegation of legislative power is involved in leaving
to selected instrumentalities the making of subordinate rules within
prescribed limits and the determination of facts to which the
legislation is to apply.
• To repeal or abrogate an existing law is the exercise of an essential
legislative power, and the policy behind such acts must be the policy
of the legislature itself.
• If the legislature invests the executive with the power to determine
as to which of the laws in force in a particular territory are useful or
proper and if it is given to that authority to replace any of them by
laws brought from other provinces with such modifications as it
thinks proper, that would be to invest the executive with the
determination of the entire legislative policy and not merely of
carrying out a policy which the legislature has already laid down.
• Thus the power of extension, which is contemplated by Section 2 of
Part-C States (Laws) Act, includes the power of introducing laws
which may be in actual conflict with the laws validly established and
already in operation in that territory. This shows how the practice,
which was adopted during the early British period as an expedient
and possibly harmless measure with the object of providing laws for a
newly acquired territory or backward area till it grew up into a full-
fledged administrative and political unit, is being resorted to in later
times for no other purpose than that of vesting almost unrestricted
legislative powers with regard to certain areas in the executive
Government. The executive Government is given the authority to
alter, repeal or amend any laws in existence at that area under the
guise of bringing in laws there which are valid in other parts of India.
• This, in my opinion, is an unwarrantable delegation of
legislative duties and cannot be permitted. The last
portion of Section 2 of Part-C States (Laws) Act is,
therefore, ultra vires the powers of the Parliament as
being a delegation of essential legislative powers in
favour of a body not competent to exercise it and to
that extent the legislation must be held to be void.
This portion is however severable; and so the entire
section need not be declared invalid.
• (1) Section 7 of the Delhi Laws Act, 1912, is in its entirety intra vires
the legislature which passed it and no portion of it is invalid.
• (2) The Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its
provisions are not ultra vires the legislature which passed the Act.
• (3) Section 2 of Part-C States (Laws) Act 1950, is ultra vires to the
extent that it empowers the Central Government to extend to Part-C
States laws which are in force in Part A States, even though such laws
might conflict with or affect laws already in existence in the area to
which they are extended. The power given by the last portion of the
section to make provisions in any extended enactment for the repeal
or amendment of any corresponding provincial law, which is for the
time being applicable to that Part-C State, is, therefore, illegal and
ultra vires.
Lachmi Narain v. Union of India (1976) 2 SCC
953
•The power to make modification in
a legislation does not include power
to make modification in any
essential feature .
•Section 2 of the Part C States (Laws) Act,
1950 (later re-titled as Union Territories
(Laws) Act, 1950), empowered the Central
Government to extend by notification in
the Official Gazette, to any Part C State, or
to any part of such State, with such
restrictions and modifications as it thinks
fit, any enactment which was in force in a
Part A State at the time of notification
• In exercise of this power, the Central
Government by notification No. SRO 615 dated
April 28, 1951, extended to the then Part C
State of Delhi, the Bengal Finance (Sales Tax)
Act, 1941 with, inter alia, these modifications:
In sub-section (2) of Section 6,- (b) for the words
―add to the Schedule, the words ―add to or
omit or otherwise amend the Schedule shall be
substituted
• For the schedule of the Bengal Act, this notification
substituted a modified schedule of goods exempted under
Section 6.
• The relevant items in the modified schedule were:
• 8. Fruits, fresh and dried (except when sold in sealed
containers);
• 11. Pepper, tamarind and chillies.
• 14. Turmeric;
• 16. Ghee;
• 17.
• Cloth of such description as may from time to time be
specified by notification in the Gazette costing less than
Rs.3 per yard or such other sum as may be specified
• Section 6 of the Bengal Act after its extension to Delhi, as
modified by the said notification, read:
• 6. (1) No tax shall be payable under this Act on the sale of
goods specified in the first column of the Schedule subject to
the conditions and exceptions if any set out in the
corresponding entry in the second column thereof.
• (2) The State Government after giving by Notification in the
Official Gazette not less than 3 months‘ notice of its
intention to do so may by like notification add to or omit
from or otherwise amend the Schedule and thereupon the
Schedule shall be deemed to be amended accordingly,
(emphasis supplied)
• SR0 3908 - In exercise of the powers conferred by Section 2 of the
Union Territories (Laws) Act, 1950 (30 of 1950), the Central
Government hereby makes the following amendment in the
notification of the Government of India in the Ministry of Home
Affairs No. S. R. 0. 615, dated the 28th April, 1951 [extending to the
Union Territory of Delhi the Bengal Finance (Sales Tax) Act, 1941
subject to certain modifications] namely:- In the said notification,
the modifications to the Bengal Act aforesaid in item 6 [relating to
sub-section (2) of Section 6], after sub-item (a) the following sub-
item shall be inserted, namely:- (aa) for the words ―not less than
three months‘ notice‖, the word; ―such previous notice as it
considers reasonable shall be substituted.
• The scope of the words ―such modifications as it thinks fit in
Section 2, thus: These are not unfamiliar words and they are often
used by careful draftsmen to enable laws which are applicable to one
place or object to be so adapted as to apply to another.
• The power of introducing necessary restrictions and modifications is
incidental to the power to apply or adapt the law, and in the context
in which the provision as to modification occurs, it cannot bear the
sinister sense attributed to it.
• The modifications are to be made within the framework of the Act
and they cannot be such as to affect its identity or structure or the
essential purpose to be served by it.
• The power to modify certainly involves discretion to make suitable
changes, but it would be useless to give an authority the power to
adapt a law without giving it the power to make suitable changes.
• Vivian Bose, J. also observed in a similar strain, at p. 1124:
• The power to ―restrict and modify does not import the
power to make essential changes. It is confined to
alterations of a minor character such as are necessary to
make an Act intended for one area applicable to another
and to bring it into harmony with laws already in being in
the State, or to delete portions which are meant solely for
another area. To alter the essential character of an Act or to
change it in material particulars is to legislate, and that,
namely, the power to legislate, all authorities are agreed,
cannot be delegated by a legislature which is not
unfettered.
• Mukherjea, J. was of the view that the
―essential legislative functions which consist in
the determination or choosing of the legislative
policy and of formally enacting that policy into
a binding rule of conduct cannot he delegated.
Dealing with the construction of the words
―restrictions and ―modifications in the Laws
Act, the learned Judge said, at pages 1004-1006:
• The word ―restrictions‘… connotes limitation imposed on a
particular provision so as to restrain its application or limit
its scope; it does not by any means involve any change in
the principle.
• It seems to me that in the context and used along with the
word ―restriction the word ―modification has been
employed also in a cognate sense, and it does not involve
any material or substantial alteration.
• The dictionary meaning of the expression ―to modify is to
―tone down or to ―soften the rigidity of the thing; or ―to
make partial changes without any radical alteration
• It would be quite reasonable to hold that the word
―modification in Section 7 of the Delhi Laws Act (which is
almost identical with the present Section 2. Laws Act) means
and signifies changes of such character as are necessary to
make the statute which is sought to be extended suitable to
the local conditions of the province. I do not think that the
executive Government is entitled to change the whole
nature or policy underlying any particular Act or to take
different portions from different statutes and prepare what
has been described before us as ―amalgam of several laws
… these things would be beyond the scope of the section
itself, (emphasis supplied)
• It is true that the word ―such restrictions and modifications
as it thinks fit, if construed literally and in isolation, appear
to give unfettered power of amending and modifying the
enactment sought to be extended.
• Such a wide construction must be eschewed lest the very
validity of the section becomes vulnerable on account of the
vice of excessive delegation. Moreover, such a construction
would be repugnant to the context and the content of the
section, read as a whole, and the statutory limits and
conditions attaching to the exercise of the power.
• We must, therefore, confine the scope of the words
―restrictions and modifications to alterations of
such a character which keep the inbuilt policy,
essence and substance of the enactment sought to
be extended, intact, and introduce only such
peripheral or insubstantial changes which are
appropriate and necessary to adapt and adjust it to
the local conditions of the Union territory.
• we are of opinion that the impugned notification, dated
December 7, 1957, purporting to substitute the words
―such previous notice as it considers reasonable for the
words ―not less than three months‘ notice in Section 6(2)
of the Bengal Act, is beyond the powers of the Central
Government, conferred on it by Section 2 of the Laws Act.
In consequence, the notifications, dated April 1, 1958,
September 19, 1959, June 29. 1966 and July 31, 1970 in so
far as they withdrew the exemptions from tax in the case of
durries, pure silk, country liquor, kirana articles etc. without
complying with the mandatory requirement of not less than
three months‘ notice enjoined by Section 6(2) of the Bengal
Act, are also invalid and ineffective.
Darshan Lal Mehra v. Union of India (1992) 4
SCC 28 : AIR 1992 SC 714

•[Delegation of taxing powers


on local bodies – effacement,
discrimination]
• The relevant provisions of the U.P. Nagar
Mahapalika Adhiniyam, 1959 reads:
• Section 2.: Definitions - In this Act unless there be
something repugnant in the subject or context - (77)
theatre tax‘ means a tax on amusement or
entertainments.
• “172. Taxes to be imposed under this Act.- (1) For the
purposes of this Act and subject to the provisions
thereof and of Article 285 of the Constitution of India,
the Mahapalika shall impose the following taxes,
namely,- (a) property taxes,
• (2) In addition to the taxes specified in sub-section (1) the
Mahapalika may for the purposes of this Act and subject to
the provisions thereof impose any of the following taxes,
namely,- (a) a tax on trades, callings and professions and
holding of public or private appointments; (i) a theatre tax;
and (j) any other tax which the State Legislature has the
power under the Constitution of India to impose in the State:
• (3) The Mahapalika taxes shall be assessed and levied in
accordance with the provisions of this Act and the rules and
bye-laws framed thereunder.
• (4) Nothing in this section shall authorize the imposition of
any tax which the State Legislature has no power to impose
in the State under the Constitution of India.
• The learned counsel for the petitioners has contended that Section
172(2) of the Act is unconstitutional because the legislature has
abdicated its function by delegating the essential legislative powers
upon the Nagar Palikas to levy all or any of the taxes enumerated in
the section.
• According to him the said power is unguided and uncanalised. We do
not agree with the learned counsel. Section 172(2) of the Act
authorises the Mahapalikas to impose the taxes mentioned therein,
―for the purposes of this Act.
• The obligations and functions cast upon the Mahapalikas are laid
down in various provisions of the Act. The taxes under Section 172(2)
of the Act, therefore, can be levied by the Mahapalikas only for
implementing those purposes and for no other purpose
• The obligations and functions cast upon the
Mahapalikas are laid down in various provisions of the
Act. The taxes under Section 172(2) of the Act,
therefore, can be levied by the Mahapalikas only for
implementing those purposes and for no other
purpose. The Mahapalikas have to provide special
civic amenities at the places where cinemas/theatres
are situated. So long as the tax has a reasonable
relation to the purposes of the Act the same cannot
be held to be arbitrary.
• There is no force in the argument that the legislature
has abdicated its function to the Mahapalikas. The
tax is levied in accordance with the statutory rules
framed by the State Government and the said rules
are laid before each House of the State Legislature
for not less than 14 days and are subject to such
modifications as the legislature may make during the
session they are so laid. We, therefore, reject the
contention raised by the learned counsel for the
petitioners.
• The second contention raised by the learned
counsel for the petitioners is that the
classification of cinemas on the basis of annual
rental value for the purpose of fixing the rate of
tax is arbitrary and as such is violative of Article
14 of the Constitution of India. According to him
the classification has no nexus with the objects
sought to be achieved
It may not be unreasonable or improper if a higher tax
is imposed on the shows given by a cinema house
which contains large seating accommodation and is
situate in fashionable or busy localities where the
number of visitors is more numerous and in more
affluent circumstances than the tax that may be
imposed on shows given in a smaller cinema house
containing less accommodation and situate in some
localities where the visitors are less
What is essential legislative function?
• 1)Power of supplying details: Skeleton Legislation
• CASE-Bagla V state of M.P(AIR 1954 SC 465)
• Sri ram narain v state of Bombay(AIR 1959 sc 459)
• Bhatnagar and company v UOI(AIR 1957 SC 478)
• 2)power of inclusion and exclusion
• Edwards Mills V State of ajmer
• State of T.N V Hind stone
• 3)power of modification of statute
• Rajnarain v chairman,patna admn. Comitee(AIR 1954 SC 569)
• Jalan trading co.V Mill Mazdoor Union(AIR 1967 SC 691)
• 4)Abdication Test
• Gwalior Mills v Asst Commr Sales Tax(AIR 1974 SC 1660)
• N.K Papiah case (AIR 1975 SC 1007)
• 5)Retrospective operation of delegated legislation
• B.S Yadav V state of Haryana
• 6)Power to impose tax
• Orient weaving Mills V Union of India(AIR 1963 SC 98)
• Devi Das V state of Punjab(AIR 1967 SC 1895)
• Delhi Municipal Corpoartion V Birla Cotton Mills(AIR 1968 Sc 1232)