Delegated Legislation - Unit II PDF

C h apter I V
DELEGATED LEGISLATION
SECTION 1. INTRODUCTORY
In all dem ocratic countries, like the United Kingdom, the U nited
States and India, delegated legislation is being resorted to
exteiR&ively. The great increase in delegated legislation in modern
•'tira'^ is due partly to the developm ent o f the welfare state, and
partly to the need to cop e with emergencies o f various kinds. Though
law making is the primary function of the Legislature, yet in no
country does the Legislature monopolise the whole o f the legislative
power. Out o f the total legislative output, relatively only a small
part is enacted by the Legislature itself; a large bulk o f legislation
is made by the administration under powers conferred on it by the
Legislature^ There is, in fact, no statute passed b y the Legislature
to-day which does not confer some legislative or rule-making pow er on
the administration. The A ct conferring legislative pow er is known as
the “ Parent A c t ” ; the subordinate laws which emerge under it are
known by a great diversity of names such as rules, regulations,
schemes, bylaws, statutory rules and orders, etc. The administrative
.authority on which the legislative pow er is conferred acts as the
legislature.
Various issues arising in the area of delegated legislation are
considered in this chapter, <?• g., what factors have prom oted the
growth of this institution? D oes the Constitution limit the pow er
of the Indian Parliament to confer legislative pow er on the
administration ? W h at controls are placed on the administration in
the exercise of its rule-making powers ?
1. Under the Indian Constitution, some powers of legislation, have been
conferred on the Executive which are not discussed here. See, Jain, Indian
Constitutional Law 110-111, 193-199 (1962).
SECTION 2 ] DELEGATED LEGISLATION 173
SECTION 2. GROWTH AND DEVELOPMENT
COMMITTEE ON MINISTER’S POWERS REPORT

4-6, 21-4, 51-3, 53-4 (1932)
GENERAL CONSIDERATION
There are a few general considerations to be stated. In the

British Constitution there is no such thing as the absolute separation
o f legislative, executive, and judicial powers; in practice it is
inevitable that they should overlap. In such constitutions asvt^pse o f
France and the U nited States of Am erica, attempts to keep them
rigidly apart have been made, but have proved unstc"cessful The
distinction is none the less real and for our purposes important. O ne
o f the main problem s of a modern dem ocratic state is how to preserve
the distinction, whilst avoiding too rigid an insistence on it, in the
wide borderland where it is convenient to entrust minor legislative
and judicial functions to excutive authorities.
It is custom ary to-da y for Parliament to delegate minor

legislative pow ers to subordinate authorities and bodies. Ministers
o f the C row n are the chief repositories of such powers; b u t they are
conferred also, in differing degrees, upon L ocal Authoritresr'statutory
corporations and companies, universities, arid representative bodies
o f solicitors, d octors and other professions. Some p eople hold the
view that this practice o f delegating legislative powers is unwise, and
might be dispensed with altogether...It has even been suggested that
the practice of passing such legislation is wholly bad, and should b e
forthwith abandoned. W e do not think that this is the considered
view o f most o f those w ho have investigated the problem , but many
o f them w ould like the practice curtailed as much as possible. It may
b e convenient if on the threshold o f our report we state our general
conclusion on the w hole matter. W e d o n ot agree with those critics
w h o think that the practice is wholly bad. W e see in, it definite
advantages, provided that the statutory powers are exercised and the
statutory functions performed in the right way. But abuse
are incidental to it, and we believe that safeguards are if
the country is to continue to enjoy the advantage'^ o f the practice
without suffering from ^ts inherent dangers.
But in ti^si||i ^diether good or bad t|?e developm ent of the
practice i§ iêv|$abl^. It is a natural; :in the of
174 INDIAN ADMINISTRATIVE LAW [ CHAPTER 4
constitutional law, of changes in our ideas of governm ent w hich have

resulted from changes in political, social and econom ic ideas, and of
changes in the circumstances o f our lives which have resulted from
scientific discoveries....
It is, as Professor D icey pointed out in “ The Law of The
Constitution,” futile for Parliament to endeavour to w ork out the
details of large legislative changes. Such an endeavour on ly results
in cumbersome and prolix statutes, and the evil is so apparent that
in modern times A cts o f Parliament constantly contain provisions
empowering the Privy Council, or one o f the Ministers of the
Crown^'fe^ make regulations under the A c t for the determination of
details which cannot be settled by Parliament.
Y et t h e 'll^ c t ic e , useful and necessary as it is, does to some
extent entail an abandonment by Parliament o f its legislative
functions. The details w hich are left to be determined b y the Privy
C ouncil or a Minister may closely affect the rights and property of
the subject, and even personal liberty. There is at present no
effective machinery for Parliamentary control over the many
regulations of a legislative character which are made every year by
Ministers in pursuance o f their statutory powers, and the consequence
is that much of the most im portant legislation is not really considered
and approved by Parliament. This may or may not make for
efficiency; but its extent is plainly an innovation in constitutional
practice.
: GROWTH OF DELEGATION
Before the middle o f the nineteenth century the main functions

o f government in England were those of defence and police. The
State Departments were few in number, and the management o f the
life o f the people was not regarded as a function of government. In
these circumstances, Parliament was well able to pass all the necessary
legislation itself, and there was no need to resort to any extensive
delegation o f legislative power. W e have, however, already pointed
out that legislative powers were delegated on a modest scale even in
the seventeenth and eighteenth centuries....
...[T ]h e change in the conception o f the function o f governm ent

.... dates from the middle o f the nineteenth century and was
exhaustively analysed by Professor D icey in “ Law and opinion in
England” in tw o lectures entitled “ The G row th o f C ollectivism ”
and “Period of Collectivism ." Even in 1905 that distinguished
constitutional lawyer regarded collectivism as predoiniiiajit in English
SECTION 2 J ADMINISTRATIVE FUNCTIONS 175
legislation and expressed the opinion that its force was neither spent
nor on the decline, but the logic of events was leading to the
extension and the developm ent of legislation “ which bears the
impress of collectivism .” H e found the true explanation in conditions
not wholly dem ocratic or even political.
There can, w e think, be no doubt that the p ractice o f delegating
legislative powers to the Ministers of the C row n on the large and
generous modern scale is the indirect consequence o f this sort of
legislation. Parliament nowadays passes so many laws every year,
that it lacks the time to shape all the legislative details.... M uch of
the detail is so technical as to be unsuitable for Parliaîsritary
discussion—for example, “ Patents, copyright, trade marks, designs,
diseases, poisons, the pattern of miners’ safety lîp^.s, wireless
telegraphy, the heating and lighting values o f gas, legal procedure,
or the intricacies of finance” . Many o f the laws affect people's
lives so closely that elasticity is essential. It is impossible to pass an
A c t o f Parliament to con trol an epidemic o f measles or an outbreak
of foot-and-m outh disease as and when it occurs, and such measures
as the Public H ealth A cts must be differently applied in different
parts of the country. Free sale of poisons is now recognised to b e
contrary to the best interests of society :— “ W h y should
Parliamentary time b e occu pied with the passing of a new A ct
merely because the doctors have com e to the conclusion that
ecgonine and heroin ought to be added to the statutory schedule?”
These are the practical considerations w hich have induced

Parliament to resort to the practice o f wholesale and almost
indiscriminate delegation. “ England” , said Lord Beaconsfield, “is
not governed by logic, she is governed by Parliament.” The practice
of delegation has been adopted from time to time under pressure of
circumstance, and Parliament has steadily pursued a course without
fully realising its attendant risks.
T he truth is that if Parliament w ere not willing to delegate
law-making pow er, Parliament would be unable to pass the kind and
quantity o f legislation which modern public opinion requires.
In 1916 the A m erican lawyer and statesman, M r. Elihu
in his presidential address to the American Bar Association, after
summarising the agencies at w ork in the public life o f the U nited
States in the tw entieth century, said :
“ Before these agencies, the old doctrine prohibiting the
?dele|ation o f le^slatiye powers Jia^ retired
176 INDIAN ADMINISTRATIVE LA W [ CHAPTER 4
field and given up tlie fight. There will be no withdrawal from

these experiments. W e shall go on; we shall expand them,
whether we approve theoretically or not, because such agencies
furnish protection to right, and obstacles to w rong doing, which
under our new social and industrial conditions cannot be
practically accomplished by the old and simple procedure of
legislatures and courts as in the last generation.”
In our opinion these words are as applicable to the U nited
Kingdom today as they were to the United States in 1916....
' W e doubt, however, whether Parliament itself has fully realised
how extensive the practice of delegation has becom e, or the extent to
which it has surrendered its ow n functions in the process, or how
easily the practice might be abused.
NECESSITY FOR DELEGATION
. W e have already expressed the view that the system of

delegated legislation is both legitimate and constitutionally desirable
for certain purposes, within certain limits, and under certain
safeguards. W e proceed to set out briefly—m ostly by way of
recapitulation—the reasons which have led us to this conclusion
(1) Pressure upon Parliamentary time is great. The more procedure
and subordinate matters can be withdrawn from detailed Parliamentary
discussion, the great will be the time which Parliament can devote to
the consideration of essential principles in legislation.
(2 ) The subject matter of m odern legislation is very often o f a
technical nature. A part from the broad principles involved, technical
matters are difficult to include in a Bill, since they cannot be effectively
discussed in Parliament....
(3 ) If large and com plex schemes of reform are to be given
technical shape, it is difficult to work out the administrative machinery
in time to insert in the Bill all the provisions required; it is impossible
to foresee all contingencies and local conditions for which provision
must eventually be made....
(4 ) The practice, further, is valuable because it provides for a
power o f constant adaptation to unknown future conditions without
the necessity of amending legislation. Flexibility is essential. The
method o f delegated legislation permits of the rapid utilisation of
experience, and enables the results o f consultation with interests
affected by the Ciperation o f new A cts to be translated into practice.
In.. matters, for example, like mechanical roa4 transport, where
SECTION 2 J DELEGATED LEGISLATION 177
technical developm ent is rapid, and often unforeseen, delegation is

essential to meet tliiS iew positions which arise.
(5) The practice, again, permits of experiment being made and

thus affords an opportunity, otherwise difficult to ensure, o f utilising
the— lessons of experience. The advantage o f this in matters, for
instance, like tow n planning, is too obvious to require detailed
emphasis.
( 6) In a modern state there are many occasions w hen there is a

sudden need of legislative action. For many such needs delegated
legislation is the only convenient or even possible remedy. N o doubt,
where there is time, on legislative issues o f great magnitude, it is right
that Parliament itself should either decide what the broad outlines of
the legislation shall be, or at least indicate the general scope of the
delegated powers which it considers are called for by the occasion.
But em ergency and urgency are matters o f degree; and the type
o f need may be o f greater or less national im portance. It may be not
only prudent but vital for Parliament to arm the executive Governm ent
in advance with almost plenary pow er to m eet occasions of emergency,
which affect the w hole nation— as in the extreme case o f the D efence
o f the Realm A cts in the Great W ar, where the exigency had arisen;
or in the less extreme case o f the Emergency Pow ers A c t , 1920,
where the exigency had not arisen but pow er was conferred to meet
emergencies that might arise in the future....
But the measure o f the need should be the measure alike o f the
power and of its limitation. It is o f the essence of constitutional
Governm ent that the normal con trol of ParHament should not be
suspended either to a greater degree, or for a longer time, than the
exigency demands.
W e end these observations with a truism. Emergencies are

exceptional; and exceptions cannot be classified in general language.
W e therefore make no attempt, beyond stating the principle above
mentioned, to lay dow n any general rules about the delegation by
Parliament to the Executive o f powers to legislate oi||occasioii$ 7<6f
emergency. It may suffice for purposes o f m ore limited exigency to
arm particular Departm ents o f State with pow er tp pass efiaer
regulations for dealing with specific difficulties" suddenly arising
and calling for instant preventive or remedial St?c^ps in" their special
field o f administration. Epidemics are a $ood exawpie o f the k tte r
n e e d ;..,
SUMMARY OF ARGUMENTS OF THE CRlTiCS OF DELEGATED

LEGISLATION
For these reasons a system o f delegated legislation is indispensable.

Indeed the critics o f the system do not seek to deny its necessity in
some form. Their complaint lies rather against the volum e and
character o f delegated legislation than against the practice o f delega
tion itself; and in so far as they base their complaints on criticism of
the administration as such, w e doubt whether they are clearly
conscious o f any distinction betw een the legislation of Parliament
itself and the delegated legislation o f Ministers. W e agree w ith them
in thinking that there are real dangers incidental to delegated
legislation; and we think it may be convenient to summarize the main
criticisms, although we do not thereby commit ourselves to com plete
concurrence with the critics....
(1 ) A c t o f Parliament may be passed only in skeleton form and
contain only the barest general principles. Other matters o f principle,
transcending procedure and the details of administration, matters
which closely affect the rights and property o f the subject, may be
left to be worked out in the Departments, with the result that laws
are promulgated which have not been made by, and get little
supervision from Parliament. Some o f the critics suggest that this
practice has so far passed all reasonable limits, as to have assumed
the character of a serious invasion of the sphere o f Parliament b y the
Executive. The extent o f its adoption is, they argue, excessive, and
leads not only to widespread suspicion and distrust of the machinery
o f Government, but actually endangers our civic and personal
liberties.
(2) The facilities afforded to Parliament to scrutinise and control
the exercise of powers delegated to Ministers are inadequate. There
is a danger that the servant may be transformed into the master.
(3 ) Delegated powers may be so wide as to deprive the citizen of
protection by the Courts against action by the E xecutive which is
harsh, or unreasonable,
(4) The delegated power may be so loosely defined that the area
it is intended to cov er’ cannot be clearly known, and it is said that
uncertainty of this kind is unfair to those affected.
(5) W hile provision is usually mqde
(a) for reasonable public notice, and
(b ) for consultation in advance with the interests affected
where they are organized,
(6) The privilegpd position o£ the Crown as against the subject

in legal proceedings places the latter at a definite disadvantage in
obtaining redress in the Courts for illegal actions com mitted under the
authority of delegated legislation.
Each o f these criticisms is important, but they do n ot destroy the
case for delegated legislation. Their true bearing is rather that there
are dangers in the practice; that is liable to abuse; and that safeguards
are required. N or do we think that either the published criticism
or the evidence we have received justifies an alarmist view o f the
constitutional situation. W h a t the system lacks is coherence and
uniformity in operation. Its defects, as we have sought to show, are
the inevitable consequence o f its haphazard evolution. Our recom m en
dations are intended to rem ove these defects; and we believe that
they should go far to meet the difficulties which the critics have
indicated. For the most part the dangers are potential rather than
actual; and the problem which the critics raise is essentially one of
devising the best safeguards.
SECTION 3. THE NATURE OF DELEGATED LEGISLATION
WADE, ADMINISTRATIVE LAW

249-257 (1961)
Administrative Legislation
One o f the principal administrative activities is legislation.

Indeed, if we measure m erely by volume, much more legislation is
produced by the executive government than b y the legislature. A ll
the orders, rules and regulations made b y Ministers, departments, and
other bodies ow e their legal force to A cts of Parlianigpt...Parliament,
is obliged to delegate very extensive law-making poêir ove|:„ mat ters
of detail and content itself with providing a fram ework o f ' m ore or
less permanent statutes....
This administrative legislation is traditionally teokcd upon ag.a'

necessary evil, an unfortunate but inevitable infringement o f the
separation o f powers. But this is an old-fashioned view, fo r in
reality it is no m ore difficult to ~j€stify it in theory than it is
possible tQ do w ithout it in practice, T'here on ly a haay bo^d^r-Iiiie
180 INDIAN ADMINISTRATIVE L A W [ CHAPTER 4
between- legislation and administration, ani|;|the assumption that

they are tw o fundamentally different forms o f pow er is misleading.
There are some obvious general differences. But the idea that a’^clean
division can be made (as it can, more probably, in the case o f the
judicial p ow er) is a legacy from an older era of political theory. It is
easy to see that legislative power is the pow er to lay dow n the law
for people in general, whereas administrative pow er is the p ow er to
lay down the law for them individually, or in some particular case..,.
For legal purposes— judicial control, statutory interpretation, and the
doctrine of ultra vires— there is com mon ground throughout both
subjects. W h a t does matter is that both involve the grant o f wide
discretionary powers to the government....
If w e look at the practical side, it is at on ce plain that

administration must involve a great deal of general law-making, and
that no theory which demands segregation of these functions can be
sound. Parliament can lay down that cars must carry suitable lights,
or that the price of eggs shall be fixed, or that the em ploym ent of
dock workers shall be controlled, or that there shall be relief from
double taxation. But where, as happens so frequently, such legislation
can b e properly administered only constantly adjusting it to the needs
o f the situation, discretion has to be allowed. This is the w ork of
administration, in the clearest sense of the term, and the fact that it
may also be said to be legislation is of no relevance. A s Parliament
thrusts ever greater responsibilities on to the executive, and social and
other regulatory services are constantly multiplying, delegated
legislation is increasing simply as a function o f the growth of
discretionary power. The division of territory between the legislature
and the executive is dictated by their respective capabilities. M uch
work that is legislative is equally truly administrative, and does not
necessarily belong to the legislature at all. W h ere the legislature
comes in is in its political and representative function, as the elected
body to which ministers must answer for their administration. The
trae constitutional problem presented by delegated legislation is not
that it exists, but that its enormous growth has made it difficult for
Parliament to watch over it as it watches over other departm ents of
administration,...
The growth o f a problem
Uneasiness at the extent of delegated legislation began to be

evident towards the end of the nineteenth century. It was n ot a new
device, but the scale on which it began to be used in what D icey
SECTION 3 J D ELEGA TED LEGISLA TION 181
called The Period of C ollectivism ’ was a symptom o f a new era.

Perhaps the m ost striking piece of delegation ever effected by
Parliament was the Statute of Proclamations, 1539 (repealed in 1547),
by which H enry V III was given wide p ow er to legislate by
proclamation. In 1531 the Statute o f Sewers delegated legislative
powers to the Commissioners of Sewers, w ho w ere em powered to
make drainage schemes and levy rates on landowners. These wêre
outstanding early examples o f a technique which Parliament has
always felt able to use. But the flow of these powers was no more
than a trickle until the age of reform arrived in the nineteenth
century. Then very sweeping powers began to be conferred. The
Poor Law A c t of 1834 gave to the Poor Law Commissioners who had
no responsibility to ParHament, pow er to make rules and order for
‘the management o f the p o o r’. This power, which lasted for over a
century (though responsibility to Parliament was established in
1847). remained leading example of delegation which put not merely
the detailed execution but also the form ulation of policy into
executive hands. But this was part of a particular experiment in
bureaucratic government. A s a thing in itself, delegated legislation
did not begin to provoke criticism until later in the century,...The
first W o rld W ar inevitably brought a great increase, as the
government assumed almost unbounded em ergency powers under the
D efence of the Realm A ct, 1914. In 1920, when the war-tim e surfeit
had not yet worn off, rules and orders were five times as bulky as the
statutes. Delegated legislation therefore becam e a target when the
outcry against the growth o f administrative powers developed in the
1920’ s. It form ed the first o f the matters referred to the C om m ittee
on Ministers’ Powers, whose R eport was published in 1932. Since
that time, although delegated legislation has continued to grow in
bulk and im portance, it has n ot been such a subject of controversy.
T he Second W o rld W a r brought another flood of regulations, which
hardly abated at first when the war Wc^s succeeded by the w elfare
state....
JVic/e general po)vers
A standard argument fo r delegation is that it is necessary for
cases where ParHament cannot attend to small matters o£ detail.: /Btit,,
quite apart from em ergency powers (considered below ), Parliaraîit:
sometimes delegates law-making pow er that is quite general.... Under
the Supplies and Services (Extended Purposes) A ct, 1947, controls
authorized by many regulations already in force w ere extended for
the following additional p u rp oses:
(а) for promoting the productivity o f industry, com m erce, and

agriculture;
(б) for fostering and directing exports and reducing imports, or
imports of any classes, from all or any countries and for
redressing the balance o f trade; and
(c ) generally for ensuring that the w hole resources of the
community are available for use, and are used, in a manner
best calculated to serve the interest of the community.
This was much more than ‘em ergency’ legislation, in any fair sense of
that overw orked word. Subject to one single reservation fo r the
sake o f freedom of the press, the whole econ om ic life o f the
community was subjected to executive p ow er....
These sweeping econom.ic controls have now been rem oved, but
statutory social services have inevitably extended the perm anent field
o f delegated legislation. Some of the regulatory powers are wide, for
instance the pow er in the N ational H ealth Service A c t, 1946, for the
Minister to control the medical services to be provided, to secure
that adequate personal care and attendance is given, and so on. In
such cases A ct can do little more than provide an outline, and the
only effective control left to Parliament is through the subsequent
political responsibility of the Minister.
Taxation
Even this tender subject, so jealously guarded by the H ouse of
Commons, has been partially invaded from time to time. U nder the
Imports Duties A ct, 1932, the Treasury was authorized to vary the
classes o f goods chargeable and the rates of duty, subject to the views
of an advisory committee and subject to affirmative approval b y the
H ouse o f Commons. The schedules of goods liable to purchase tax
are similarly variable by Treasury order under the Finance A cts of
1948 and 1954, but again subject to an affirmative vote o f the House
o f Commons if the tax is increased or extended. M a n y A cts give
power to prescribe charges for services rendered, fo r example b y the
Post Office or under the National Health Service.
Power to vary Acts o f Parliament
It is quite possible for Parliament to delegate a p ow er to amend

statutes. This used to be regarded as incongruous, and the clause
by which it was done nicknamed ‘ the H enry V III clause'—because,
said the Committee of 1932, ‘That King is regarded popularly as the
impersonation o f executive autocracy’. T he usual o b je ct was to

assist in bringing a new A c t into effect, particularly where previous
legislation had been com plicated, or where there might be local
A cts of Parliament which some centralized scheme had to be
made to fit. A well known example— well know n because it was
said that the A c t could not otherwise have been carried through at
the time when Parliament was favourable to it ~ is the N ational
Insurance A ct of 1911, which provided that if any difBculty arose in
bringing one part o f the A c t into operation, the Insurance
Commissioners with the consent of the Treasury might do anything
that they thought necessary or expedient for that purpose, and might
modify the provisions of the A c t, provided that they acted before the
end of 1913. Such clauses were not uncommon, and sometimes they
gave pow er to amend other A cts as well; but the Com m ittee o f
1932 criticized them as constituting a tem ptation to slipshod work
in the preparation o f bills, and said that they should b e used
only where they were justified before Parliament on compelling
grounds. But in fact, as the intricacy o f legislation grows steadily
more form idable, some pow er to adjust or reconcile statutory
provisions has to be tolerated. A lthough such clauses may no
longer be cast in such striking terms, substantially similar devices
have been even more in vogue since the R eport than b efore it. One
need look no further than the Statutory Instruments A ct, 1946,
itself to find an example ; the King in Council may direct that certain
provisions about laying statutory instruments before Parliament
shall not apply to instruments made under pre-existing A cts if those
provisions are deemed inexpedient....
Emergency Powers
The com m on law contains a doctrine o f last resort under which,
if war or insurrection should prevent the ordinary courts from
operating, the actions of the military authorities in restoring order
are legally unchallengeable. W h en the courts are thus reduced to
silence, martial law (truly said to be ‘no law at all’) prevails. This
principle...lies outside our subject). A ll other em ergency powers
drive from Parliament by delegation.
The one standing provision for peace-tim e emergehcies is; tfcie

Emergency Pow er A ct, 1920, which is designed to p rotect the public
from the effects o f serious strikes .... T h e crow n may declare an
em ergency on account of any threat to the suptjly; ahd distribution
pf food, water, fuel, or light, or to tlie ,
appears that the community, or any substantial part o f it, will be

deprived of ‘the essentials o f life’. W hile the proclam ation is in
fo rce the C row n may by Order in Council make regulations ‘for
securing the essentials of life to the com m unity’, and may con fer on
ministers or others any powers and duties deemed necessary for a
wide variety of purposes connected with public safety and the life of
the com m unity.... A proclam ation o f emergency must at on ce be
com m unicated to Parliament, which must be summoned if necessary;
the regulations must b e laid before Parliament as soon as possible,
and will expire in seven days from the time when they are so laid,
unless both Houses approve them by resolution. The proclam ation
itself expires in a month, but without prejudice to a further
proclamation.
T h e powers granted in war-time are, o f course, much w ider— and

are to o wide to describe in detail. In 1914, the D efence of the
Realm A c t, in a single short section, gave pow er to the King in
C ouncil to make regulations ‘for securing the public safety and the
defen ce of the realm’, including trial by court martial in wide classes
o f cases. A s we shall see, the courts found this form ula to be
subject to a number o f implied restrictions, for instance as regards
taxation, expropriation, and access to the courts. By the end o f the
war many things of questionable legality had been done, and it was
thought necessary to pass the Indemnity A ct, 1920, and the W a r
Charges Validity A ct, 1925. Profiting by this lesson. Parliament
granted more elaborate and specific powers in the Emergency Powers
(D efen ce) A ct, 1939. The King in Council was empowered to make
defence regulations, being such regulations ‘as appear to him to be
necessary or expedient for securing the public safety, the defence of
the realm, the maintenance of public order and the efficient prosecu
tion o f any war in which His M ajesty may be engaged, and for
maintaining supplies and services essential to the life o f the com m unity’.
A series o f specific powers was then added, providing for such things
as detention of persons and requisitioning of property, for amending,
modifying, or suspending any statute, and for delegating any o f the
powers to other authorities. T he Treasury was given pow er to make
orders imposing charges in connection with any scheme of con trol
under the regulations, subject to affirmative resolution b y the H ouse
of Commons within twenty-eight days. Certain other charges could
be imposed by defence regulations directly, and were then (Hke other
defence regulations) subject only to negative resolution o f either
House. The A c t did n ot authorize any form of com pulsory military
SCETION 3 ] DELEGATED LEGISLATION 185
service (this was the subject of other legislation) or industrial

conscription, or trial of civilians by cou rt martial (contrary to the
precedent of 1914). But in 1940 the ban on industrial conscription
was swept aw ay....U n der these virtually unlimited powers the
governm ent undertook the close control o f industrial employm ent as
well as of very many other matters. So extensive were the powers
that no Indemnity A c t was found necessary. M oreover...p ow ers
which for some purposes were even wider were continued in the
post-w ar decade by a succession of A c t of Parliament which adapted
the war-time governm ental machine to peace-tim e con trol o f econom ic
activity and under which rationing schemes continued to be adminis
tered. A lthough the number of operative controls was much reduced
from 1951 onwards, it took a long time to dispose o f the framework
o f ‘em ergency’ laws.
S. R. DAS, “INAUGURATION ADDRESS’' TO THE ADMINISTRATIVE

LA W SEMINAR
1 Journal of the Indian Law Institute 14-16 (1958)
In the early stages o f society, the necessity for law was satisfied
b y a few simple rules regulating the con du ct o f man so as to put a
stop to the primitive rule o f the jungle. In those days there was
ample elbow room for all, the chances of clash and conflict were fewer.
But as society grew, population increase, men’ s ideas as to their
mutual relationship and their relationship with the State underwent
changes. N ecessity for more elaborate laws was felt progressively.
C om m on law had to be supplemented by statute laws and a more
elaborate system of courts had to be devised to administer them.
Then, in modern times, men conceived the notion o f w elfare state
and began to look up to the State for greater attention and
help. N otions o f new rights, new interests, with correlative new
wrong and new liabilities, began to press for recognition. These
notions brought the State into closer con ta ct with the people until
the State has n ow invaded almost every sphere o f the lives o f th e
people. In order to discharge its functions as a welfare statfe, th e
State has necessarily- to be armed with laws and the pow er to enforce
them. Parliament can hardly cope w ith the demands fo r such
legislation and, constituted as it is, it is hardly qualified to comprehend
or attend to the minutest details for which provisions have to be
made. So Parliament has to content itself with laying down the
general principles and leaving it to the executive G overnm ent to

administer them by framing suitable rules within the fram ew ork of
the laws passed by it,...
It is an interesting study how the English and the Am erican

sytems o f law have viewed this problem. It is com m on knowledge
that in the British C onstitution the King-in-Parliam ent is the
sovereign pow er in the State. It was after considerable struggle
against the concentration o f pow er in the hands o f the King that the
supermacy o f Parliament was fully and firmly established. As
Professor D icey said, the sovereignty o f Parliament is an undoubted
legal fa ct and it is com plete both on its positive and on its negative
side. It can legally legislate on any topic whatever. T h ere is no law
w hich Parliament may not change. There is no court or any other
body which can pronounce any Parliamentary statute void or
inoperative.... Parliament’s pow er o f legislation being com plete and
supreme, there is nothing to prevent it from delegating its legislative
powers to the executive officers or other subordinate bodies. As
I have already said, delegation of legislative power becam e necessary
because of Parliament’s lack of time to shape all legislation,
its lack o f technical knowledge and aptitude, the occu rren ce of
conditions which requires immediate attention at a time when
Parliament is not in session and a desire to preserve the essential
elasticity o f laws affecting people's lives so closely.... This delegation
o f pow er came to be freely and widely exercised by Parliament, and
the executive governm ent started making rules having the force of
law until they assumed an alarming proportion. Lord H ew art
complained o f this new despotism and Parliament had to set up a
Committee on Ministers’ Powers, commonly known as the D on ou gh -
more C om m ittee....
In the American Constitution, we find a different principle in

operation, The framers o f the Am erican Constitution w ere imbued
with the political theories propagated by John L ock e and
Montesquieu.
A ccordingly, they started with a com plete separation of pow ers

in A rticles 1, 2, and 3 of their Federal Constitution. This doctrine o f
separation of powers led to the corollary that legislative pow er could
not be exercised by any agency o f the Governm ent except the
legislature. Pushed to its logical conclusion, the A m erican doctrine
would necessarily prevent any delegation of legislative power. The
practical difficulties in a literal application o f the maxim w ere soon
felt, and by judicial pronouncem ents beginning with tliose o f Marshall

C. J. in Wayman v. Southard dow n to those o f modern Judges in recent
times, this theory against delegation o f legislative pow er has been
considerably softened dow n by the inexorable necessity o f modern
times.
Professor Cushman’ s syllogism is w orth repeating '
M ajor P rem ise: Legislative pow er cannot be constitutionally

delegated by Congress.
M inor Prem ise; It is essential that certain powers be delegated to
administrative officers and regulatory commissions.
Conclusion ; Therefore, the powers thus delegated are n ot
legislative powers.
The A m erican Judges whittled down the doctrine by limiting it

to “ strictly and exclusively” (per Marshall C. J.) or “ purely" (per
D ay J.) or “ essential” (p er Hughes C. J.) legislative pow er, and the
rest o f the con ten t o f the legislative pow er has been permitted to be
delegated under the pretence that it is n ot really legislative power “ to
ascertain and declare fa cts” (per H arlan J.) or only “ administrative
powers to make rules and regulations” (per Hughes C. J.) or “ minor
m atter” (per Lamar J.)
It will thus be seen that although the English and the American
systems started at tw o opposite ends, they have now com e and m et
half w ay....
SECTION 4. POWER OF LEGISLATURE TO DELEGATE
NOTES
It is agreed on all sides that,delegated legislation is indispeiisable

in the modern administrative ...age. W h atever reasons,, existed
for the growth o f delegated legislation in. the United Kingdoiii and
in the U nited States o f Am erica, d o exist in Irtdia to a lafge,.exte,iiti;
In addition, the modern con cept o f a socialistic, ,p;a.fct?^^^
w hich the Congress Governme-nt is trying to evolye in India Has led
to large scale socio-econ om ic planning and consequent governmental
control o f private trade and business. ,This gifen a great fillip
to the institution of delegated legislation.^ N ational planning and

provision for social services have necessitated the making o f detailed
regulations. A s a result this vast regulatory law could n ot be enacted
b y Parliament because of either lack of time or expertise in the
legislators. A lso considerations of adaptability o f or flexibility in the
law demand resort to delegated legislation.
The question, therefore, is one of control, and n ot o f desirability,
of delegated legislation. T he con trol of delegated legislation means
con trol at tw o stages:— First at the source, when pow er o f legislation
is conferred by the legislature on the administration, and, second,
after the delegated legislation emerges from the hands of the delegate.
H ere w e shall take up the first stage for consideration. Th e second
stage is discussed later.^ It may, however, be pointed out that there
is a close relation betw een the controls at the tw o stages. The
con trol of delegated legislation at the second stage largely depends
in its efficacy on the first.
In England, due to the operation of the doctrine of Supremacy of
Parliament, the courts cannot control the Parliament in the matter of
delegation o f legislative pow er. But, in the U nited States because of
the doctrine of the separation o f powers, the theory prevails that
excessive delegation is bad and that the delegation of legislative
pow er should not be “ unconfined and vagrant’', that it should n ot
“ run riot” .
In the United States the question of delegation has involved a
conflict o f values. On the one hand, there is the doctrine o f the
separation of powers which insists‘ on a separation betw een the
executive and the legislative. The same idea is also expressed at
times by the maxim : "Delegatus non potest delegare,'" namely, a
delegate cannot further delegate. So it is argued that Congress
which derives its power from the people, and is thus a delegate
itself cannot further delegate its pow er to the Executive. On
the other hand, there are the practical needs o f the m odern
governm ent which make delegation n ot only necessary but imperative.
In the area of defining the permissible limits within which Congress
can delegate its legislative powers, the task before the U nited States
Supreme Court, therefore, has been that o f creating a balance
1. See, for instance, the innumerable orders promulgated by the Central and
State Governments under section 3 of the Essential Commodities Act, 1955. The
Indian Law Institute, Administrative Process Under the Essential Commodilies Act, 1955
(1964).
2. 7/;/mCh. V.
between the tw o conflicting forces: doctrin e o f separation barring

delegation and the inevitability of delegation due to the exigencies
o f modern government. The evolution o f judicial attitude in this
area reveals three phases :
1, Pre~New D e a l: During this period, the Supreme C ourt upheld
many delegations b y understating the pow er delegated as the pow er
to “ fill in details,” or “ to find facts to carry the legislatively declared
policies into effect,” or as ‘"quasi-legislative” or as “ administrative
pow ers.” Jaffee points out that comprehensive systems o f regulations
were thus upheld under this “ fictional rationalization.” ^
2, New Deal • During the N ew D eal era, the Supreme C ourt

rejected some instances o f delegation on the ground o f excessive
delegation. T he delegations involved w ere broader than what had
been attem pted earlier. This factor along with the then Supreme
Court's conservative attitude towards President R oosevelt’s N ew
D eal programme resulted in the C ou rt’s judgments in the Panama^
and the Schechter^ cases that the delegations were vltra vires. T he
principle was, however, laid down that legislative p ow er could be
delegated if Congress lays dow n the policy. This reroains the
controlling principle even to-day. In the matter o f delegation the
judicial attitude seems to be that Congress cannot give a blank
cheque to the E xecutive to legislate, which in essence would
amount to abdication o f its functions by the Congress, and that is
unconstitutional.
3, Post - New D e a l; In this period, the emergency created by
the outbreak o f the Second W o rld W a r influenced judicial thinking
considerably. Furthermore the reconstituted Supreme Court o f the
R oosevelt era was liberal in its outlook. A s a result very broad
delegations o f legislative pow er were judicially approved, although
the principle laid dow n in earlier cases was reiterated. Since 1939,
no delegation has been condemned as excessive. T w o important
war-time cases are Yakus v. United States^ andi^?cA/^rv. United States’’.
In the Lichter case, according to Davis, “ greatest delegation” Was
sanctioned by the Supreme C ourt. H e also added “ judicial language
3. Jaffee. “ An Essay on Delegation of Legislative Power,” 47 Colum- Zi Rev.
359 (1964).
4. Panama Refining Co. v. Ryan, 293 U. S, 388 (1935).
5. A., L. A . Schechter Poultry Corp. v. U, S ., 295 U.S. 495 (1935).
6. 321 U. S. 414 (1944\
7. 334 U. 8.7 4 2 (1948).
8. Davis,‘ Administrative Lay
about standard is artificial."'' Frank observes, “ ...[ilt is improbable

that any act whicli Congress garnishes with even an appearance of
a “ standard’' to guide the executive discretion will be invalidated.” ^®
Commenting on the doctrine of excessive delegation, Jaffe says :
“ It must be admitted that in the field of federal administration the
doctrine as it operates to-day is essentially a caveat, a hint o f a
reserved power.” ^^
SCHWARTZ. AN INTRODUCTION TO AMERICAN

ADMINISTRATIVE LAW
34. 40-2(1958)
...In order to preserve the position o f the Congress as the primary

legislator, delegations of pow er by it could not be inordinate. A nd
this has meant that the precise limits of the law-making pow er
which the Congress intended to confer upon an administrative
agency have had to be defined in clear language by the statute
which conferred it. Or, as the highest American C ourt itself had
expressed it, the delegated power must be Hmited b y a standard :
“ Congress cannot delegate any part o f its legislative power except
under the limitation of a prescribed standard.” The discretion
conferred must not be so wide that it is impossible to discern its
limits. There must instead be an ascertainable legislative intent to
which the exercise of the delegated power must conform . If there is
no precise standard in the enabling statute to limit delegations of
power, the administrative agency is in actuality being given a blank
check to make law in the delegated area of authority. In such a case,
it is the agency, rather than the Congress, that is really the primary
legislator.
The Committee on Ministers’ Powers, it should be noted,

expressed a principle basically similar to the standard requ irem en t;
‘‘The precise limits of a law-making power which Parliament intends
to confer on a Minister should always be expressly defined in clear
language by the statute which confers it: when discretion is
conferred, its limits should be defined with equal clearness.” In effect,
the British Committee here was urging a limitation upon delegation
not unlike that accomplished by the requirement of a standard in
_
10. Frank, Cases on the Constitution 61 (1951).

n . Op, cit. supra oote, at 592,
the A m erican system. W h a t the A m erican rule demands is that

delegations o f p ow er must be Hmited on es— limited either by
legislative prescription o f ends and means, or even o f details, or by
limitations upon the area of the power delegated. T he enabling
legislation must, in other words, contain a fram ework within which
the administrative action must operate. Otherwise, the legislature
is, in effect, abdicating its function as primary legislator to the
administrator.
But where does this leave the requirement of an ascertainable
standard in enabling legislation? Plainly, a standard such as that
contained in the Communications A ct is not mechanical or self
defining; it implies wide areas of judgment and, therefore, o f discretion.
If such a broad standard is considered adequate, then has not the
requirement of a defined standard becom e a purely formal one and,
if that is the case, has not the Am erican law, in practice if not in
theory, becom e similar to that in Britain, where there are no
constitutional limitations to restrain Parliament from delegating
authority how it will ?
The Supreme C ourt w ould answer this by asserting that the
generality o f the phrasing in a statute, such as the Communications
A c t of 1934, does n ot mean that the applicable standards are too
vague to canalize administrative discretion effectively. Th e statutory
language is not to be read in a vacuum; a general standard may be
given specific form and content when looked at in the light of the
statutory scheme and its background. Thus the standard o f “ public
interest'’ in the Com m unications A c t is not so vague and indefinite as
to b e u n con stitu tion al: “It is a mistaken assumption that this is a
mere general reference to public welfare without any standard to
guide determination. The purpose o f the A ct, the requirements it
imposes, and the content o f the provision in question, show the
contrary.”
One wonders, how ever, whether a standard such as that contained
in the Communications A c t really furnishes an effective legislative
guide. A s it has been put b y one writer, telling the agency to do
what is in the public interest is the practical equivalent o f in'^|ructing
it: “ H ere is the problem. D eal with it.’ ' Certainly a lliislative
discretion to act in the “ public interest'’ appears to, add little to an
enabling A ct. W o u ld the Federal Communications C^wmissibn be
likely to act any differently in specific cases if the Communications
A c t did not specifically instruct it to be guided b y “ public interest,
convenience or n^gessity ?”
It cannot be denied, in the Hgbt of the above, that the attitude

o f the A m erican Court toward the delegation problem has changed
substantially since the Schechter case. Schechter may still stand apart
because of the tremendous scope of the delegation at issue there—
whatHias been well called the “ most sweeping congressional delegation
of all tim e.” But, if standards such as those contained in the
Reorganisations and Communications A ct are upheld as adequate,
it becom es apparent that the requirement of standards has becom e
more a matter of form than substance. Provided that there is no
abdication of the Congressional function, as there was in the Schechter
case, the enabling law will be upheld, even though the only standard
which the Court can find is so broad as to be almost illusory.
DAVIS, 1 ADMINISTRATIVE LAW TREATISE

76. 81-6, 88-101 (1958)
THE NON-DELEGATION DOCTRINE
A s recently as 1932 the Supreme Court d e cla re d : “ That the

legislative power of Congress cannot be delegated is, of course, c le a r /’
This statement was but a reiteration of the leading case of Field v.
Clark : “ That Congress cannot delegate legislative p ow er to the
President is a principle universally recognised as vital to the integrity
and maintenance o f the system of government ordained by the
C onstitution.” Y et the Supreme C ourt has specifically upheld scores
of delegations of legislative power, and no congressional delegation to
a regularly constituted administrative agency has ever been held
invalid.
CONGRESSIONAL DELEGATIONS UPHELD-STANDARDS
But the standards the Supreme Court has held adequate include
‘just and reasonable,” “ public interest,” unreasonable obstru ction ”
to navigation, “ reciprocally unequal and unreasonable,’ ’ “ public
convenience, interest, or necessity,” “ tea o f inferior quality,” ‘"unfair
methods o f competition,” “ reasonable variations,” “ unduly oru n n eces-
sarily complicate the structure” o f a holding company system or
unfairly or inequitably distribute voting pow er among security
holders."
Because of history or context, vague phrases of this sort may

sometimes have considerable meaning. But sometimes they do not
have. Sometimes telling the agency to do is in the public
interest is the practical equivalent o f instructing i t ; “ H ere is the

problem. Deal with it.” Detailed analysis of a few opinions will
readily show the unreality o f the talk about standards.
In N B C V. U nited States, the validity of the F C C ’s chain

broadcasting regulations was challenged. The A c t conferred uRon the
Commission pow er to license broadcasting stations. The criterion was
“ public interest, convenience, or necessity.” Quoting earlier cases, the
C ourt declared that the standard was “ ‘as concrete as the com plicated
factors for judgment in such a field of delegated authority
permit.’ ...This criterion is to be interpreted by its context, by
the nature of radio transmission and reception, by the scope, character
and quality of services... " Yet the N BC case involved something
clearly beyond what was contem plated at the time of the enactment in
1934~a com prehensive set of regulations governing contractual
relations between networks and broadcasting stations. W h eth er the
A c t gave the Commission pow er to regulate econom ics of networks
at all was a question on which the C ourt divided. But one cannot
find in the A c t o r in its legislative history guidance whatsoever
concerning the questions o£ monopolistic practices which the regula
tions were designed to reach. True, Congress in the antitrust laws had
enunciated policies, but the F C C expressly disavowed intention to
apply the antitrust laws. The Court declared that “ the ‘public
interest’ to be served under the Communications A c t is...th e interest
of the listening public in ‘the larger and more effective use o f radio’ ”
and “ to secure the maximum benefits of radio to all the people o f the
U nited States-*’ But the C ourt did not pretend that either the A c t or
its legislative history told the Commission whether it should promote
a policy of enforced com petition, or how far such a policy should be
carried, or how much, if any, weight should be given to business
interests that might be opposed to the interest o f the listening public.
The Commission partially answered these basic questions in its
regulations, and the regulations were upheld.
In Yakus v. U nited States, the delegations o f the Emergency

Price Control A c t o f 1942 were upheld. The A ct declared its
purpose to be “ to stabilize prices... to eliminate,, profiteering to
assure that defense appropriations are n ot .dissipated b y excessive ,
prices; to protect persons with relatively fixed and limited incomfes...
to prevent a post emergency collapse o f v a lu e s ../’ The Ad^niiiistfatd^
was given pow er to fix: prices which “in his juctgment will be generally
fair and equitable ^ 4 will effectuate the purposes thj§ A ct/' The
Adm inistrator was required “ so far as practicable" to “ give due

consideration” to prices prevailing on designated dates, and by a later
A ct the direction was given to stabilize “ so far as p racticable" on the
basis o f levels of a later date. The A ct provided no direct answer to
the question whether prices should be allowed to go up five per cent,
twenty per cent, or a hundred per cent; nor did it answer such
fundamental questions as whether prices could be fixed b elow costs,
whether profits on particular products could be eliminated, or
whether profits of whole industries could be eliminated or drastically
reduced. Lack of legislative answers to such basic questions was
proved by administrative experience in working out such administra
tively-created standards...Despite the necessity for the administrative
formulation of such basic standards, the C ou rt easily sustained the
delegation, saying merely that “ Congress has stated the legislative
obiecti.ve-maximum price fixing-and has laid down standards to guide
the administrative determination of both the occasions for the
exercise of the price-fixing pow er, and the particular prices to be
established.”
THE PANAMA AND SCHECHTER CASES
These two cases are the only ones invalidating congressional

delegations to governmental authorities. The Panama case, except
in its own unique setting, is of questionable authority today. Section
9 (c) 'o f the N ational Industrial Recovery A c t delegated to the
President the power to prohibit shipment o f “ hot oil” (oil produced
in contravention o f state laws) in interstate commerce. The Court
found no standard in section 9 (c) and found the general statements
of policy in Title I of the A ct to be inadequate. Those statements
included the phrases, “ to eliminate unfair com petitive practices,” and
“to conserve natural resources.” The power delegated was very
narrow: as stated at the argument, the President was authorized to
determine only the “ whether” and the ‘ when’\ not the “ what,” To
reconcile the Panama decision with earlier or later decisions seems
impossible. The Panama case seems most easily explainable in terms
of two somewhat extraneous factors— that other parts o f the A c t
provided for “ delegation running riot” , and that, as was dramatically
shown at the argument, the content of code provisions for violation
of which producers were criminally liable was n ot readily
ascertainable.
The Schechter case involved the m ost sweeping congressional

delegation o f all time. True, the standards, in the sense o f the
statutory phrases expressing policy, w ere the same as those in the
Panama case the statements in Title I o f the N ational Industrial
R ecovery A ct. But the delegation was not merely o f a small pow er
to determine whether and when a prescribed provision should becom e
effective; the delegation included power to approve detailed codes to
govern all business subject to federal authority. N ot the vagueness
of the standards but the scope of the delegation distinguishes the
Schechter case from all others. The C ou rt’? opinion is devoted mainly
to discussion of standards, but the Court did declare; “ In view o f the
scope of that broad declaration, and o f the nature of the few
restrictions that are imposed, the discretion o f the President in
approving or prescribing codes, and thus enacting laws for the
government o f trade and industry throughout the country, is virtually
unfettered.” T h e standards— “ to eliminate unfair competitive
practices, to prom ote the fullest possible utilization o f the present
productive capacity o f industries,... and otherw ise to rehabilitate
industry..." w ere probably more definite than many standards
contained in the Interstate Com m erce A c t — “in the public interest,"
“ just and reasonable.” But the Interstate C om m erce A c t is itself a
comprehensive code of laws regulating transportation, and the vague
standards guide the exercise of relatively small powers— that must
always b e kept subordinate to the detailed fram ew ort o f the A ct.
Even the vast war pow er o f price control is dwarfed by the pow er
delegated by the N ational Industrial R ecovery A ct, which included
the fixing of prices for all of trade and industry and the formulation
and approval o f com prehensive codes to govern all business practices-
Bew are of the Supreme C ou rt’s misleading language. That the

literal opinions in the Panama and Schechter cases do n ot embody
the effective law is entirely clear. This is dramatically shown when
a low er court takes those opinions seriously. For instance, the
opinions were follow ed to the letter b y a three-judge district court,
which held a delegation invalid because : “ W e are unable to find in
the A c t a declaration o f p olicy or standard o f action wîich can b e
deemed to relate to the s u b je c t.. Because the low er court took
literally what the Supreme C ourt has said in the Panama and
Schechter opinions, the Supreme C ourt reversed it.
NOTES
A fte r Independence, the courts in India had tw o models before

them on the question of delegation o f legislative pow er. There was,
on the one hand, the English example where ParHament enjoys
unlimited power of delegation. On the other hand, there was the
practice prevalent in the United States where delegation is subject
to the policy being laid down by the legislature. Th e Constitution
of India did not provide any clear guidance on the point. O n the
basis that India, like England, has a parliamentary form o f government
in which a close relationship exists between the E xecutive and the
Legislature, and the E xecutive’s responsibility to the Legislature is
assessed daily, the Indian Courts could w ell have follow ed the
English rule. The Indian C ourts adopted the latter model in
preference to the form er. The courts have in a number o f cases laid
dow n the principle that the legislature cannot delegate uncontrolled
and unguided pow er; that it should lay down the p olicy subject to
which delegation can take place. In the very first case known as the
Delhi Law Act case after the new Constitution, the Supreme Court
rejected the extreme contention of the Government that an unlimited
right of delegation is inherent in the legislative pow er itself. The
C ourt considered three theories against delegation, vfe., delegatus non
potest delegare, separation of powers, and abdication by the legislature.
"'The first tw o theories, it was held, were not o f much consequence in
India. The judges emphasized repeatedly that in India the doctrine
of separation did n ot operate in the area o f legislative-executive
relationship. The doctrine of the ParHament being a delegate o f the
people was also rejected as being “ not a sound political th eory” . The
third was, nevertheless, held to be pertinent. A Legislature
functioning under a written constitution, it was decided, must itself
discharge the essential legislative function which means that it should
lay dow n the poUcy and enact that as a binding rule o f conduct.
Thus we see that delegation o f legislative pow er w ithout laying

dow n the policy is not permissible. It may be instructive to examine
the cases to study the operation of the principle in practice and to
assess its present vitality.
There is another doctrine which prevails in India

con^tional legislation. In this case, the law is full and com plete
when It leaves the legislative chamber, but its operation is made to
depend upon the fulfilment of some condition and what is delegated
to an outside body is the authority to determine, b y the exercise
SECTION 4 ] DELEGATED LEGISLATION J97
of its ow n judgment, whether or not the condition has been

fulfilled.^“ In this situation, the law is there, its taking effect is made
to depend upon the determ ination of certain facts and conditions by
an outside authority. This doctrine now has only a historical
justification. B efore Independence, the Privy C ouncil never liked to
commit itself to the position that it was permissible for the C olonial
Indian Legislature (non-sovereign according to D ice y ) to delegate
legislative pow er. The legislatures were creatures o f the British
Parliament. The Privy Council, while reiterating that they had
plenary powers to legislate on the subjects falling within their scope,
never overtly endorsed the suggestion that they could delegate
their powers. In all cases, the provision in question was upheld as
conferring pow er of subsidiary or conditional legislation- The
expressions ‘‘subsidiary” or “ conditional” legislation were used to
denote that n ot the pow ers o f legislation but only some minor
powers were conferred to carry the enactment into operation and
effect. In other words, the legislature having discharged the essential
legislative function, specifies the basic conclusion o f fact upon
ascertainment o f which, the legislative provisions are made to
operate by the executive or any other administrative agency. It
appears that the Privy C ouncil evolved the form ula o f conditional
legislation as a com prom ise betw een the needs o f the situation
(demanding delegation), and the colonial character o f the legislature
(as they operated within the bounds o f the Parliamentary statutes).
The cases which came before the Privy C ouncil could have all been
disposed ofon the ground o f “ delegation" but, instead, it relied on
the narrower doctrin e of “ conditional legislation." T h e supreme
example of this approach is to be found in the Federal Court case,
Jatindra Nath Gupta v. Province o f Bihar^^ decided immediately before
the advent of the new constitution. In this case, the pow er to extend
the operation o f an A c t was held to be delegation o f legislative power
and not conditional legislation and therefore was held improper
and void.
The Courts after Independence have travelled much beyond the
position taken by the court in the Jatindra Nath case. . The term
“ conditional legislation’*is rather vague and ambiguour possible
that what is held in one case as “ delegated legislation may be held
in another as “ conditional legislation,” ^^ It is a question fo r considera-
12. Mukherjea, X, In re Delhi Laws Act, (1951) S. C. J. 527.
13. A. I. R. 1949 F. C. 175.
14. For example, comffite Jatindra Nath Giiptav.PrQvfnde o f Bihar, A, I. R.
1949 F. C. 175; and Inder S ir ^ y . State 1^57 512,
tion w h eth ei the doctrine of conditional legislation may not now be

discarded as it is only a modest variant of delegated legislation and is
n o longer necessary when the doctrine of delegation itself has come
into operation in India.
A s the term “ conditional” legislation is used from time to time
even in the post-C onstitution era, some cases having a bearing on the
doctrine are included herein by way of explaination and illustration.
A : DOCTRINE OF CONDITIONAL LEGISLATION
THE EMPRESS v. BURAH

I.L.R.4Cal. 172 (1879)
[In 1869, the Indian Legislature passed an A c t purporting to

rem ove the district of Garo Hills from the jurisdiction o f the Civil
and Criminal courts, and the law applied therein, and to vest the
administration of civil and criminal justice within the same district in
such officers as the Lieutenant-G overnor of Bengal might appoint for
the purpose. By Section 2, this A c t was to come into operation on
such day as the Lieutenant-G overnor o f Bengal should, by a
notification, direct. By Section 9, the Lieutenant-G overnor was
empowered from time to time, by notification in the Calcutta
Gazette, to extend, mutatis mutandis, all or any o f the provisions
contained in the A ct to the Jaintia, Naga and Khasia Hills. The
Lieutenant-Governor of Bengal, by a notification, fixed the time at
which it should come into operation in the Garo Hills; and afterwards,
by another notification, he extended all provisions of the A c t to the
district o f the Khasia and Jaintia Hills, Under the A c t and these
notifications Burah was tried on a charge of murder b y the Deputy
Commissioner of the Khasia and Jaintia Hills, and was sentenced to
death. On appeal, the High Court of Calcutta, by a majority,
decided in favour of Burah. Thereupon the Government appealed to
the Privy Council.]
Lord Selborne;
The ground of the decision to that effect of the majority o f the

Judges of the H igh Court was that the 9th section was n ot legislation,
but was delegation o f legislative pow er. In the leading judgment of
M r. Justice Markby, the principles o f doctrine of agency are relied
on; and the Indian Legislature seems to be regarded as, in effect, an
agent or delegate, acting under a mandate from the Imperial
Parliament, which must in all cases be executed directly by itself.
Their Lordships cannot but observe that if the principle thus

suggested were correct, and justified the conclusion drawn h'om it,
they would be unable to follow the distinction made b y the majority
o f the Judges betw een the pow er conferred upon the Lieutenant-
G overnor of Bengal by the 2nd and that con ferred on him by the 9th
section. If, by the 9th section, it is left to the Lieutenant-G overnor
to determine w hether the A ct, or any part o f it, shall be applied to a
certain district, b y the 2nd section it is left to him to determine at what
time the A c t shall take effect as law anywhere. Legislation which
does not directly fix the period for its own com m encem ent, but leaves
that to be done by an external authority, may, with quite as much
reason, be called incom plete, as that which does not itself immediately
determine the w hole area to which it is to be applied, but leaves this
to b e done by the same external authority. If it is an act o f
legislation on the part of the external authority so trusted to enlarge
the area within which a law actually in operation is to be applied, it
would seem, o fortiori^ to be an act of legislation to bring the law
originally into op eration b y fixing the time for its com m encement.
But their Lordships are o f opinion that doctrine of the majority

of the C ourt is erroneous, and that it rests upon a mistaken view o f
the powers o f the Indian Legislature, and indeed of the nature and
principles of legislation. T h e Indian Legislature has pow ers expressly
limited by the A c t o f the Imperial Parliament which created it, and
it can, of couse, do nothing beyon d the limits. W ith these limits, it is
not in any sense an agent or delegate of the Imperial Parliament, but
has, and was intended to have, plenary pow ers o f legislation, as
large, and of the same nature, as those o f Parliament itself. The
established C ourts o f Justice, when a question arises whether the
prescribed limits have been exceeded, must o f necessity determine
the question; and the only way in which, they can properly do so, is
by looking to the terms o f the instrument by which, affirmatively,
the legislative pow ers w ere created, and by which, negatively, they
are restricted. If what has been done is legislation within the general
scope of the affirmative words which give the pow er, and if it
violates no express condition or restriction by which that pov/er is
limited, it is n ot for any C ourt o f Justice to inquire further, or t o '
enlarge constructively those conditions and restrictions,,
Their Lordships agree that the Governor-General-in.-:-Council

could not, by any forrn of enactment, create in India, arm with general
legislative authority, new legislative ' pow er, n ot created or
200 INDIAN ADMINISTRATIVE LAW [CHAPTER 4
authorized b y the C oan cil’s A ct. Nothing of that kind has in their
Lordships’ opinion been done or attempted in the present case. W h at
has been done is this. The Governor-General-in~Coim cil has
determined, in the due ordinary course of legislation, to rem ove a
particular district from the jurisdiction o f the ordinary Courts and
offices, and to place it under new Courts and offices, to be appointed
by, and responsible to, the Lieutenant-Governor o f Bengal; leaving it
to the Lieutenant-G overnor to say at what time that change shall take
place; and also enabling him not to make what laws he pleases for that
or any other district, but to apply by pubHc notification to that district
any law, or part of a law, which cither already was, or from time to
time might be, in force, by proper legislative authority, “ in the other
territories subject to his government.” The Legislature determined
that so far a certain change should take place; but that it was
expedient to have the time, and the manner, of carrying it into effect
to the discretion of the Lieutenant-Governor; and also that the laws
which w ere or might be in force in the other territories subject to the
same Government were such as it might be fit and proper to apply to
this district also; but that, as it was n ot certain that all those laws, and
every part of them, could with equal convenience be so applied, it was
expedient, on that point also, to entrust a discretion to the Lieutenant-
Governor. This having been done as to the Garo Hills, what was done
as to the Khasia and Jaintia Hills ? The legislature decided that it
was fit and proper that the adjoining district o f the Khasia and
Jaintia Hills should also be removed from the jurisdiction of the
existing Courts, and brought under the same provisions with the
Garo Hills, not neccessarily and at all events, but if and when the
Lieutenant-G overnor should think it desirable to do so; and that it
might be expedient that not all, but some only, o f those provisions
should be applied to that adjoining district. A nd accordingly the
Legislature entrusted, for these purposes also, a discretionary power
to the Lieutenant-Governor,
Their Lordships think that it is a fallacy to speak o f the powers

thus conferred upon the Lieutenant-Governor (large as they
undoubtedly are) as if, when they were exercised, the efficacy o f the
acts done under them would be due to any other legislative authority
than that of the Governor-General in Council. Their whole operation
is, directly and immediately, under and by virtue of this A c t ... itself.
The proper Legislature has exercised its judgment as to place, person,
law;s, powers; and the result of that judgment has been to legislate
conditionally as to all these things. The conditions having been
fulfilled, the legislation is now absolute. W h ere plenary powers of

legislation exist as to particular subjects, whether in an Imperial or
in a Provincial Legislature, they may (in their Lordships’ judgment)
be well exercised, either absolutely or conditionally. Legislation,
conditional on the use o f particular powers or on the exercise of a
limited discretion, entrusted by the Legislature to persons in whom
it places confidence, is no uncom m on thing; and, in many circumstances
it may be highly convenient. The British Statute B ook abounds with
examples of it; and it cannot be supposed that the Imperial Parliament
did not, when constituting the Indian Legislature, contem plate this
kind of a conditional legislation as within the scope o£ the legislative
powers which it from time to time conferred. It certainly used no
words to exclude it..,. [A p p eal A llow ed ]
NOTES
The doctrine of conditional legislation enunciated in the Burah

case has been subsequently applied by the courts in a number o f cases:
(1 ) Emperor v. Benoari L a lp the G overn or-G en eraU n -C ou n cil
promulgated an ordinance^® providing for the setting up o f special
criminal courts. T he ordinance contained the necessary framework
for special courts, but instead actually setting them itself, provided
that it would com e into force in any province w hen the Provincial
Government, by notification in the official gazette, ‘declares it to be
in force in the Province.’
It was contended that the Ordinance was invalid bccause the
last provision amounted to delegated legislation, by which the
G overnor-G eneral, w ithout legal authority, sought to pass the
decision as to whether an emergency existed to the Provincial
Government instead of deciding it for himself. R ejecting the argument,
Lord Chancellor, V iscou n t Simon held;
...B ut the G overnor-G eneral has n ot delegated his legislative
powers at all.... Their Lordships are unable to see that there was
any valid objection , in point of legality, to the G overnor-
General's Ordinance taking the form that the actual s&ttmg up
o f a Special Court under the terms o f the Ordinance should take
place at the time and within the limits judged to be necessary by
15. A. I. R. 1945 P. C. 48.
16, Under para 72 of schedule 9 of the Government of India Act, 1935, read
with section 102 thereof.
the Provincial Government specially concerned. This is not

delegated legislation at all. It is merely an example of the not
uncommon legislative arrangement by which the local appHcation
o f the provision o f a statute is determined by the judgement of a
local administrative body as to its necessity
A reference was made to a Canadian Case Charles Russell v.

The Queeiu^^ The Canadian Temperance A ct, 1878, was to be brought
into force in any country or city, if upon a vote o f a majority of the
electors of the country or city favouring such course, the G overnor-
General by order in Council declared the relative part o f the A c t to
be in force. The Privy Council held that this provision did not
amount to a delegation of legislative powers to the voters in a city or
country. Their Lordships said;
..,[T ]h e A c t does not delegate any legislative power whatever.

It contains within itself the whole legislation on the matters with
which it deals. The provision that certain parts o f the A c t shall
com e into operation only on the petition of a majority of
electors does not confer on these persons powers to legislate.
Parliament itself enacts the condition and everything which is to
follow upon the condition being fulfilled. Conditional legislation
o f this kind is in many cases convenient, and is certainly not
unusual, and the power to so legislate cannot be denied to the
Parliament o f Canada, when the subject of legislation is within
its competency....^®
(2 ) Section 97 o f the C ity of Bangalore M unicipal Corporation

A ct, 1949, enumerates the taxes and duties which the Corporation is
empowered to levy under the A ct. In the schedule certain articles
were mentioned specifically on which an octroi could be levied and a
•Residuary head in the schedule gave power to levy octroi on other
articles and goods. Thus the Corporation could choose the articles
upon which tax could b e imposed. It was challenged on the ground
that the power of the Corporation was excessive delegation which
was both uncanalised and uncontrolled. Rejecting the argument,
the Supreme Court held that the pow er was more in the nature of
conditional legislation. “A ll that the legislature has done in the
present case is that it has specified certain articles on which octroi
duty can be imposed and it has also given to the Municipal
17. Supra note 15, at 51.
18. [1882] 7 A. C. 829.
19. U. at 835.
Corporation the discretion to determine on what other goods and.

under conditions the tax should be levied .’’’*®
(3 ) In State o f Bombay v. NarottamcJas,-^ the Bombay Legislature

enacted the Bombay C ity Civil Court A ct, 1948, to establish a Civil
Court for greater Bombay having jurisdiction to decide civil suits not
exceeding ten thousand rupees in value. The State Government was,
however, authorised to extend its jurisdiction up to twenty five
thousand rupees. This provision was challenged as being an
unauthorised delegation o f legislative powers.
The Supreme C ou rt rejected the argument and upheld the

provision as conditional legislation. A ccordin g to Mahajan, J:
...W ith o u t applying its mind to the question as to whether the

new C ou rt which it was setting up should have a jurisdiction
higher than Rs. 10,000, how could the Legislature possibly enact
in S. 4 that the pecuniary jurisdiction of the new court would not
exceed R s 25,000. T h e fixation o f the maximum limit o f the
C ou rt’s pecuniary jurisdiction is the result o f exercise of
legislative will, as w ithout arriving at this judgment it w ould not
have been able to determine the outside limit o f the pecuniary
jurisdiction o f the new court. T h e p olicy o f the Legislature in
regard to the pecuniary jurisdiction of the C ourt that was being
set up was settled.,.and it was to the e ffe c t th a t initially its
pecuniary jurisdiction will be limited to Rs. 10,000 and that in
future if circumstances make it desirable— and this was left to the
determination of the Provincial Governm ent— it could be given
jurisdiction to hear cases up to the value o f Rs. 25,000.... A ll that
was left to the discretion o f the Provincial Governm ent was the
determination of the circumstances under which the new C ourt
w ould be clothed with enhanced pecuniary jurisdiction, The vital
matters o f policy having been determined, the actual execution o f
that p olicy was left to the Provincial G overnm ent and to such
conditional legislation no exception could be taken. Th^^section
does n ot em pow er the Provincial Governm ent to enact a, law as
regards the pecuniary jurisdiction o f the new C ourt a^d it can,,
in no sense, b e held to b e le^slation conferring legislatSiê! pow er
on the Provincial Government.^®
20. Bangalore W. C. & S. Mills v. Bangalore Corpn A. I. R. 1962 S. C.

1263, 1266.
21. A. I. R. 1951 S. C. 69.
22. Id. at 80.
204 INDIAN a d m in is t r a t iv e LAW [ CHAPTER 4
(4 ) Section 1(3) of Bihar Maintenance o f Public O rder A c t, 1947,

laid dow n that the A c t would remain in force for one year provided
that “ the Provincial Government may, by notification, on a resolution
passed by the Bihar Legislative Assembly and agreed to b y the Bihar
Legislative Council, direct that this A c t shall remain in fo rce for a
further period of one year with such modifications, if any, as may be
specified in the notification ....” This provision conferred on the
executive a tw o-fold power, viz., that o f extending the life o f the A c t
and that o f modifying it. The validity o f the provision came to be
considered by the Federal C ourt in Jatindra Nath Gupta v. Province o f
Bihar^-^ and by majority it was held to be bad. It was contended that
the pow er to extend the life o f an A ct, beyond the prescribed period,
was clearly legislative power which could not be delegated to the tw o
H ouses of the Legislature so as to extend the life o f the A c t by their
resolution only. It was further argued that the power o f modification,
which was subject to no limit as to the extent of the modifications
which could be made in the A ct, was necessarily legislative power,
and not conditional legislation as the Legislature had not passed the
A c t itself and made its operation, either as to its com m encem ent or
the area, dependent on the order of an extraneous authority. The
majority accepted the contention. In the words o f Kania, C. J. ;
...T h e proviso contains the power to extend the A c t for a period
of one year, with modifications, if any. It is one pow er and not
tw o severable powers. The fact that no modifications w ere made
in the A c t when the power was exercised cannot help in
determining the true nature o f the power* T he pow er to extend
the operation of the A c t beyond the period m entioned in the A ct
prima facie is a legislative power. It is for the Legislature to
state how long a particular legislation will be in operation. That
cannot be left to the discretion o f some other body. The pow er
to modify A ct of a Legislature, without any limitation on the
extent of the pow er o f modification, is undoubtedly a legislative
power. It is not a pow er confined subject to any restriction,
limitation or proviso (which is the same as an exception) on ly....
Even keeping apart the pow er to modify the A ct, I am unable to
construe the proviso worded as it is, as conditional legislation
by the Provincial Government. Section 1(3) and the proviso
read together cannot be properly interpreted to mean that the
Government o f Bihar in the performance of its legislative
functions had prescribed the life of the A c t beyond one year.
23. A. I. R. 1949 F. C. ITs! ~ —
For its continued existence beyond the period of one year it had
not exercised its volitiO'h or judgment but left the same to
another authority, which was not the legislative authority of the
Province. The proviso is framed in the affirmative form, stating
that it shall be extended for a period o f one year by the Provincial
Governm ent on a resolution passed b y the tw o Chambers. I also
think that on a true construction o f the proviso this pow er o f
legislation to extend the life of the A c t beyond the first year is
not left in the legislative body established by the Governm ent o f
India A c t for the Province, but in a different b o d y ..,. A pplying
the principles laid down by the Judicial Com m ittee o f the Privy
Council in The Queen v. Burah,,,Qx\A Russel v. The Queen.., I do not
think the extension of A ct beyon d the first year by the
N otifications can escape being classed as delegated legislation.
It is not and cannot be disputed that delegated legislation will be
ultra vires.-^
The minority, how ever, disagreed with the proposition that

leaving the p ow er o f extension to an outside authority amounted to
legislation or exercise of legislative power. In the w ords'of Fazl A liJ .;
From the A ct, it is clear that, though it was in the first instance
to remain in force for a period o f one year, the Legislature did
contem plate that it might have to b e extended for a further
p eriod ...of one year. H aving decided that it might have to b e
extended, it left the m atter o f the extension to the discretion o f
the Provincial Governm ent. It seems to me that the Legislature
having exercised its judgement as to the period for which the A c t
was or might have to remain in force, there was nothing wrong
in its legislating conditionally and leaving it to the discretion o f
the executive authority whether the A c t should be extended for
a further period o f one year o r not. It w ould be taking a
somewhat narrow er view of the decision in Burak’s case, ..to hold
that all that the legislature can do when legislating cond:f^pnalIy
is to leave merely the time and the manner o f ca^ #in g its
legislation into effect to the discretion o f the executive authority
and that cannot leave any ,'qi:her m atter to its discretion. The
extension o f the A c t for af'fyrther period o f <ê year does riot
amount to its re-enactm ent It merely amount|^G a continuance
o f the A ct for the maximum period ted by the
Legislature when enacting||>e:it:fod.
------------- --------------- — -----------------------------------------------------------------------------------------^ ^ — I
24. U at 178.
The matter, however, is n ot so ^ ^ p le when w e deal with the

p ow er of modifying the A c t wMif'h also is conferred by the
proviso on the Provincial Government, because if the matter is
view ed a httle strictly, it may appear at the first sight that by
empowering the Provincial Government to modify the A ct, the
Legislature has delegated to some extent the legislative power to
an external authority....
...[T lh e power to extend the A c t and the pow er to m odify it are
tw o separate powers, and assuming that the A c t may not be valid
in so far as it confers the latter power, it can be held to be valid
in so far as it confers the former pow er....T he mere fact that the
pow er to extend is coupled verbally with the pow er to m odify the
A c t will not make the entire proviso invalid....In my opinion, the
tw o powers mentioned in the proviso are separable and are not
so inter-twined that the proviso must stand or fall as a whole.
In the present case the Provincial Government merely extended
the A c t and did not modify it.®^
In one respect, however, the view of the majority in the Jatindm
Nath case has been overruled by the Supreme C ourt in In d a r Singh v.
The State o f Rajasthan.-'^ Section 3(1) of the ordinance passed by the
Rajpramukh stated the Ordinance would remain in force for a period
o f tw o years unless this period was further extended by the notification
in the Rajasthan Gazette. It was argued that it was essentially
a m atter for legislative determination as to how long a statute
should operate, and that the power conferred by 3(1) on the executive
to extend the poriod o f tw o years fixed therein is an unconstitutional
delegation o f legislative power. The Court held that the Jatindm
Nath case could n ot “ be regarded as a clear and direct pronouncem ent
that a statutory provision authorizing an outside authority to extend
the life of a statute is per se bad.” ^’ Referring to the decision in
In re The Delhi Law Act, 1912}^ the Court found that a proposition
upheld by majority in that case “ is that when an appropriate
Legislature enacts a law and authorises an outside authority to bring
it into force in such area or at such time as it may decide, that is
conditional and n ot delegated legislation, and that such legislation is
v a l i d . S e c t i o n 3 of the Ordinance m so far as it authorised the
25. Id. at 193-94.
26. A. I. R. 1957 S. C. 510.
27. Id. at 515.
28. 1951 S. C. R. 747; A. I. R. 1951 S. C332.
29. Supra note 26, at 515.
Rajpramukh to extend the lif^' of the A c t fell within the category o f

conditional legislation, and in consequence intra vires.
A com parison o f the tw o cases, viz,, Jatindra Nath Gupta and
Inder Singh shows that before the advent o f the Indian Constitution,
the Federal C ou rt took a narrow view of the p ow er o f the Indian
Legislature to delegate. It sought to confine it to a situation o f
conditional legislation, interpreting conditional legislation rather
restrictively, and w ould n ot permit anything in the nature o f
delegation o f legislative pow er— something more than conditional
legislation. Th e Supreme Court has now taken a broader view.®” It
has not only interpreted conditional legislation broadly but also
permitted delegated legislation as will be clear from the follow in g
cases.
B: DELEGATION OF LEGISLATIVE POWER

(a) General
In Re ARTICLE 143, CONSTITUTION OF INDIA

A.I.R. 1951 S.C. 332
[ Part C states (now known as U nion Territories) are small

territories direct under the con trol of Central Government.
Responsibility to make laws for these territories lies on Parliament,
but as this could n ot possibly be done in practice it becam e
necessary to delegate legislative powers to the Executive. Section 2
of the Part C States (L a w s) A c t, 1950, runs as follows :—
“ The C entral G overnm ent may, b y notification in the Ofhcial
Gazette, extend to any part C State (other than C oorg and the
Andaman and N icobar Islands) or to any part of such State, w ith
such restrictions and modifications as it thinks fit, any enactment
which is in force in Part A State at the date o f the notification
and provision may h e made in any enactment so extended for the
repeal or amendment o f any corresponding law (othe|||han a
Central A c t ) which is for the time being applicable to tlai:Cfc Part
e s t a t e .’’
The President of India, ® d e r A rticle 143, referred to the;
Supreme C ou rt for opinion, in t^ ^ ia , the question '^jhether the abov'e'
section or any ‘of its provisic^-s'-înd in what particulars or to w hat
extent, was ultra vires the P aâm ent.]
-------------------------- -------------- ^ -----------------------------------— ------------------- --------------------------------------------
30. See, Inder Singh v. The Stat&of Rajasthan, A. I R 1957 S C. 510- Bangalore
W. C. & S. Mills V . Bangalore ^ r p n ., A,I R 1962 S.C. 1263
31, The case is general died as In re Delhi Laws Act, 1912 (Ed,). ; .
Kania, C.J.:
T h e contentions urged on behalf or the President o f India are
that legislative pow er carries with it a pow er of delegation to any
person the legislature may choose to appoint. W h eth er sovereign or
subordinate, the legislative authority can so delegate its function if
the delegation can stand three tests. (1) It must be a delegation in
respect o f a subject or matter which is within the scope o f the
legislative power o f the body making the delegation. (2) Such power
o f delegation is n ot negatived by the instrument by which the
legislative body is created or established. A nd (3) it does not create
another legislative body having the same powers and to discharge the
same functions which itself has, if the creation of such a body is
prohibited by the instrument which establishes the legislative body
itself....
Before considering these arguments indetaiU I think it is essential
to appreciate clearly what is conveyed by the word ‘delegation'...
when a legislative body passes an A ct it has exercised its legislative
function. The essentials of such fuction are the determination of the
legislative policy and its formulation as a rule of conduct. These
essentials are the characteristics o f a legislature by itself.... The
legislature having thus made its laws, it is clear that every detail for
working it out and for carrying the enactments into operation and
effect may be done by the legislature or may be left to another
subordinate agency or to some executive officer. W h ile this also is
sometimes described as a delegation o f legislative powers, in essence
it is different from delegation o f legislative power, which means a
determination of the legislative policy and formulation o f the same
as a,rule o f conduct, I find that the word ‘delegation’ is quite often
used without bearing this fundamental distinction in mind. W h ile the
so-called delegation, which empowers the making of rules and
regulations, has been recognized as ancillary to the pow er to define
legislative policy and formulate rule o f conduct, the important
question raised by the A ttorny-G eneral is in respect o f the right o f
the legislature to delegate functions strictly so called....
(A fte r a discussion o f case-la||?,^ on the subject H is Lordship

continued.)
...W h ile the Judicial Committee l ^ s pointed out that the Indian
Legislature had plenary powers to lelislate on the subjects falling
32. The Q ueens. Burah, 5 1 1, A. 178; E m p erA v. Benoarilal Sharma, 7 2 1. A.
57 (Ed.), *
within its pow ers and that those powers w ere o f the same nature
and as supreme as the British Parliament, they do n ot endorse the
contention that the Indian Legislature, except that it could not create
another body with the same powers as it has, or in other words, efface
itself, had unlimited powers of delegation. W h e n the argument of the
pow er o f the Indian Legislature to delegate legislative powers in that
manner to subordinate bodies was directly urged before the Privy
Council, in each one o f their decisions the Judicial Com m ittee
has repudiated the suggestion and held that what was done was
not delegation bu t was subsidiary legislation or conditional legislation.
Thus while the Board has reiterated its views that the pow ers o f the
Indian Legislature w ere “ as plenary and o f the same nature as the
British Parliament” no one, in no case, and in no circumstances,
during the last seventy years, has stated that the Indian Legislature
has pow er of delegation (as contended in this case) and which w ould
have been a direct, plain, obivious and conclusive answer to the
argument. Instead of that, they have examined the impugned
legislation in each case and pronounced on its validity on the ground
that it was conditional or subsidiary legislation....
[Position in Canada, Australia and the U nited States was
considered.]
A fair and close reading and analysis o f all these decisions of the
privy council, the judgments o f the Supreme Courts o f Canada and
Australia w ithout stretching and straining the words and expressions
used therein lead me to the conclusion that while a legislature, as a
part o f its legislative functions, can con fer powers to make rules and
regulations for carrying the enactment into operation and effect, and
while a legislature has p ow er to lay dow n the policy and principles
providing the rule of conduct and while it may further provide that
on certain data or facts being found and ascertained by an executive
authority, the operation o f the A c t can be extended to certain areas
or may be brought into force on such determ ination which is declared
as conditional legislation, the pow er to delegate legislative functions
generally is n ot warranted un(%r the C onstitution o f India at any
stage,.,. In my opinion, therefore, the conten tion urged b y the learned
A ttorney-G eneral that leg isla tiv e pow er carries with it a general,,
p ow er to delegate legislative fum tlons, so that the %gislaturei:: may
not define its p olicy at all and m fy lay dow n no rule o| con.duGt: fcut
th a t w hole thing may b e left either to the exe<^:t:iy€: autb,03a®iS! Of
administrative or oth er body, isjttnsound and n ot snpported By
authorities on w hich he reli|§..., f;
It was contended by the learned A ttorn ey -G e n e ra l that under

the pow er o f delegation the legislative body cannot abdicate or efface
itself. That was its limit. It was argued that so long as the legislature
had pow er to con trol the actions of the b od y to w hich pow er was
delegated, that so long as the actions of such body w ere capable of
being revoked there was no abdication or e£facem ent,...The true test
in respect of ‘abdication’ or ‘efFacement’ appears to be whether in
conferring the pow er to the delegate, the legislature, ‘in the words
used to confer the pow er', retained its con trol. D oes the decision of
the delegate derive sanction from the act o f the delegate or has
it got the sanction from what the legislature has enacted and
decided ? Every pow er given to a delegate can be norm ally called back.
There can hardly be a case where this cannot be done because the
legislative body w hich confers pow er on the delegate has always the
pow er to revoke that authority and it appears difficult to visualize a
situation in which such pow er can be irrevocably lost... .In my opinion,
therefore, the question whether there is ‘abdication’ and ‘effacem ent’
or not has to be decided on the meaning of the words used in the
instrument by which the pow er is conferred on the authority....
A bdication b y a legislative body need not necessarily amount to a
com plete effacement of it. A bdication may be partial o r com plete.
W h e n in respect o f a subject in the Legislative List the Legislature
says that it shall n ot legislate on that subject but w ould leave it to
som ebody else to legislate on it, why does it not amount to abdication
or effacement ? If full powers to do anything and everything which
the legislature can do are conferred on the subordinate authority,
although the legislature has pow er to control the action o f the
subordinate authority, by recalling such p ow er or repealing the A cts
passed b y the subordinate authority, the pow er conferred by the
instrument in my opinion, amounts to an abdication or effacem ent o f ;
the legislature conferring such power.
T h e power to ‘ m odify’ an A c t in its extension by the order o f

the subordinate authority has also com e in fo r considerable discussion.
Originally when pow er was conferi^d on the subordinate authority
to apply existing legislation to specified areas it was given only to
apply the whole or a portion thereof. That pow er was, further
expanded by giving a pow er to restrict its application also. In the
next stage power was given to modify “ so as to adapt the same” to
local conditions. It is obvious that till this stage the clear intention
was that the delegate on whom pow er was conferred was only left
with the discretion to apply what was coifsidejred suitable, as a whole
or in part, and to make adaptation w hich becam e necessary because

of local conditions and nothing more. O n ly in recent years in some
A cts pow er o f m odification is given w ithout any w ords o f limitation
on that power. T he learned A ttorney-G en eral contended that the
w ord ‘m odify’ according to the O xford D ictionary means “ to limit,
restrain, to assuage, to make less severe, rigorous, or decisive, to tone
dow n ” . It is also given the meaning “ to make partial changes in;
to alter w ithout radical transform ation” . H e therefore contended
that if the d onee of the p ow er exceeded the limits o f the pow er of
modification beyond that sense, that w ould be exceeding the limits of
the pow er and to that extent the exercise o f the p ow er may be
declared invalid. He claimed no larger pow er under the term
‘m odification’. O n the other hand, in R ow land B urrow ’s “ W ords
and Phrases”, the word, ‘m odify’ has been defined as meaning “vary,
extend or enlarge, limit or restrict’ *. It has been held that
modification implies an alteration. It may narrow or enlarge the
provisions o f the former A c t. It has been pointed out that under the
powers conferred by the D elhi Laws A ct, the Central G overnm ent
has extended the application o f the B om bay D e b to rs’ R e lie f A c t to
Delhi. T he B om bay A c t limits its application to p o o r agriculturists
whose agricultural incom e is less than Rs. 500. U nder the pow er o f
modification; conferred on it by the D elhi Laws A ct, the Central
Governm ent has rem oved the limit on the incom e, with the result
that the principles, p olicy and m achinery to give relief to p oor
peasants or agriculturists with an incom e o f less than Rs. 500, is made
applicable in Delhi to big land-ow ners even with an incom e of 20
lakhs!! This shows how the w ord ‘m odifications’ is understood and
applied by the C entral G overnm en t and acquiesced in by the
Indian Legislature. I do n ot think such pow er o f m odification and
actually exercised b y the C entral Governm eiit is perm itted in law.
If pow er o f m odification so understood is perm itted, it will be open
to the Central Legislature in effect to change the w h ole basis of the
legislation and the reason fo r making the law. T h a t ■will be a
com plete delegation o f legislative power, because in the event o f the
exercise o f the p ow er in that manner the Indian legislature has not
applied its mind either to the p olicy under w hich relief should b e îven
nor the class o f persons, nor t h # circum stances nor the machinery
b y which relief is to b e given..,, I adhere to wKat I stated in
Jatindra N ath G pu ta’s case... that the p ow er o f delegation, in the
sense o f the legislature conferring pow er, o n : eithei: the executive
government or another authority, “ to lay d ow n 'th e policy underlying
a rul^ o f con d u ct” is not petm itted...*
U nder the new Constitution o f 1950, the British Parliament,

i.e. an outside authority, has no more control over the Indian
Legislature. That Legislature’s powers are defined and controlled
and the limitations thereon prescribed only by the Constitution of
India, But the scope of its legislative pow er has not becom e enlarged
by the provisions found in the Constitution of India. W h ile the
Constitution creates the Parliament and although it does not in terms
expressly vest the legislative powers in the ParHament exclusively,
the whole scheme of the Constitution is based on the con cept that
the legislative functions o f the U nion will be discharged b y the
Parliament and by no other body. The essential of legislative functions,
viz. the determination o f the legislative policy and its form ulation as
rule of conduct, are still in the Parliament or the State Legislatures
as the case may be and nowhere else. I take that view because of the
provisions of A rticle 357 and A rticle 22(4) of the C onstitution
o f India . ,
...A rticle 357 ( l) ( a ) thus expressly gives power to the Parliament
to authorise the President 'to delegate his legislative pow ers.' If
powers of legislation include the power of delegation to any authority
there was no occasion to make this additional provision in the
A rticle at all. The wording of this clause therefore supports the
contention that normally a pow er o f legislation does not include the
pow er o f delegation.
Having regard to the position of the British Parliament, the
question whether it can validly delegate its legislative functions
cannot be raised in a C ourt of law. Therefore from the fact that
the British Parliament has delegated legislative powers it does not
follow that the power of delegation is recognised in law as necessarily
included in the power o f legislation. Although in the Constitution of
India there is no express separation o f powers, it is clear that a
legislature is created b y the Constitution and detailed provisions are
made for making that legislature pass laws. Is it then too much to
say that under the Constitution the duty to make laws, the duty to
exercise its ow n wisdom, judgment and patriotism in making laws is
primarily cast on the legislatures ? Does it not imply that unless
it can be gathered from other provisions of the Constitution,
other bodies, executive or judicial, are not intended to discharge
legislative functions?...
...Proceeding on the footing that a power o f legislation does not
carry with it the power o f delegation (as claimed by the A ttorn ey-
General), the question is whether section 2 o f Part C States (L aw s)
A ct is valid or not. By that section the Parliament has given power

to the Central G overnm ent by notification to extend to any part of
such State (Part C State) with such restrictions as it thinks fit, any
enactment w hich is in force in Part A State at the date of the
notification. T o the extent ‘the Central Legislature’ or Parliament
has passed A c ts w hich are applicable to Part A States, there can be
no ob jection to the Central Governm ent extending, if necessary,
the operation o f those A cts to the Province o f Delhi, because the
Parliament is the com petent legislature o f that Province. T o the
extent, how ever, the section permits the Central Governm ent to
extend laws made b y any legislature of Part A State to the Province
o f Delhi, the section is ‘ultra vires’.
Fazal All, J.
One of the principles on which reliance was placed to show that
legislative pow er cannot b e delegated is said to be embodied in the
w ell-know n maxim, ‘delegatis non protest delegare’, w hich in simple
language means that a delegated authority cannot b e redelegated,
or, in other words, one agent cannot lawfully appoint another to
perform the duties o f agency. This maxim how ever has a limited
application even in the domain of the law o f con tract or agency
wherein it is frequently invoked and is limited to those cases where
th e contract o f agency is o f a confidential character and where
authority is coupled with discretion or con fid en ce.... In applying the
maxim to the act o f a legislative body, w e have necessarily to ask
"w ho is the principal and who is the delegate” .
It has also been suggested by some writers that the legislature
is a delegate o f the people or the electors. This view again has not
been accepted by some constitutional writers, and D icey dealing
with the pow ers o f the British Parliament with reference to the
Septennial A c t states as follow s: “ That A c t proves to demonstration
that in a legal point o f view Parliament is neither the agent of the
electors nor in any sense a trustee for its constituents. It is legally
the sovereign legislative p ow er in the state and the Septennial A c t
is at once the result and the standing p roof o f such Parliamentary
sovereignty.®^
There can be no d ou b t that members o f a legislature represent
the m ajority o f their electors but the legislature as a body cannot
be said to b e an agency of the electorate as a w hole. T h e individual
members may and often do represent different parties and different
33. Dicey, Laws o f the Constitution 45-46 (8th 1915) (Ed.).
shades o f opinion, but the com posite legislature w hich legislates, does
so on its own authority or pow er which it derives from the
Constitution, and its acts cannot be questioned b y the electorate,
nor can the latter withdraw its p ow er to legislate o n any particular
m atter....
The second principle on which reliance was placed was said to
be founded on the w ell-know n doctrine of “ separation o f p ow ers,”
....So far as the Federal Constitution o f the U nited States was
concerned, though it does not expressly create a separation of
governmental powers, yet from the three A rticles stating that the
legislative pow er vests in Congress, the judicial p ow er in the Supreme
C ou rt and the executive pow er in the President, the rule has been
deduced that the pow er vested in each branch o f Governm ent cannot
be vested in any other branch, nor can one branch interfere with the
pow er possessed b y any other branch..
From the rule so stated, the next step was to deduce the rule
against delegation o f legislative pow er w hich has so often been
stressed in the earlier A m erican decisions. It was h ow ever soon
realized that the absolute rule against delegation of legislative
pow er could not b e sustained in p ra ctice....In course of time,
notwithstanding the maxim against delegation, the extent of
delegation had b ecom e so great that an A m erican w rote in 1916 that
“ because o f the rise of the administrative process, the old doctrine
prohibiting the delegation of legislative pow er has virtually retired
from the field and given up the f i g h t . T h i s is in one sense an
overstatement, because the A m erican Judges have never ceased to
be vigilant to check any undue or excessive authority being delegated
to the executive as will appear from the com paratively recent
decisions o f the A m erican Supreme C ourt in ‘Panama Refining Co. v-
R yan ’^®..., and ‘ Schechter Poultry Corp: v. United States'.^^
...T h e fact how ever remains that the A m erican Courts have
upheld the so-called delegated legislation in numerous instances,
and there is now a wide gulf betw een the theoretical doctrine and its
application in practice.... [N]otwithstanding the prevalence o f the
doctrine of separation of powers in Am erica, the rule against
delegation o f legislative pow er is by n o means an inelastic one in that
34. Refer to Springer v. Government o f the PhilUpine Islands, 111 U. S, 981,
201 (Ed.).
35. 41 American Bar Ass. Rep. 356, 368 (Ed.).
36. 293 U. S. 388 (l934)CEd,).
37. 295 U .S. 495 (1934) (Ed.).
country, and many eminent Judges there have tried to give a practical
trend to it so as to bring it in line with the needs o f the present-day
administration, and secondly, because they show that the rule against
delegation is n ot a necessary corollary from the doctrine o f separation
o f powers.
It is to be noted that though the principle o f separation o f powers
is also the basis of the Austrahan Constitution, the ob jection that the
delegation o f legislative pow er was n ot permissible because of the
distribution o f pow ers contained in the C onstitution has been raised
in Com m onw ealth only in a few cases and in all those cases it has
been negatived....
In England, the doctrine of separation of powers has exercised
very little influence on the course of judicial decisions or in shaping
the C on stitution....
...It seems to me that though the rule against delegation of
legislative pow er has been assumed in A m erica to b e a corollary from
the doctrine o f separation o f powers, it is strictly speaking not a neces
sary or inevitable corollary. The extent to which the rule has been
relaxed in A m erica and the elaborate explanations which have been
ojSered to justify departure from the rule, confirm the view, and it is
also supported by the fact that the trend of decisions o f Australia,
notwithstanding the fa ct that the constitution is at least theoretically
based on th e principle of separation of powers, is that the
principle does n ot stand in the w ay o f delegation in suitable
circumstances. T h e division o f the pow ers o f Governm ent is now a
normal feature o f all civilised constitutions, and as pointed out by
R ich J,in ‘ N ew South W a les v. Com m onw ealth’ 20 C .L .R . 54 at p. 108,
it is “ w ell-kn ow n in all British Communities” ; yet, except in U nited
States, now here it has b een held that by itself it forbids delegation o f
legislative pow er. It seems to me that the Anaerican jurists have
gone too far in holding that the rule against delegation was a direct
corollary from the separation o f powers,
I will now deal with the third priniciple which, in my opinion, is

thus the principle upon w hich the rule against delegation may be
founded. It has been stated in C ooley's Constitutional Limitation^j;
volum e I, at p. 224 in these words :
“ One o f the settled maxims in constitutioiial law is, that the
pow er con ferred upon the legislature |p make laws cannot be
delegated by that departm ent to any oth et bod;:j Oi: atith.otity. W h ere
the sovereign pow er o f the State has located the authority, there it
must remain; and by the constitutional agency alone the laws

must b e made until constitution itself is changed. The pow er to
whose judgment, wisdom, and patriotism this high prerogative has
been entrusted cannot relieve itself of the responsibility by choosing
other agencies upon which the pow er shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism o f any other body
for those to which alone the people have been fit to confide this
sovereign trust” ,...
This rule in a broad sense involves the principle underlying the
maxim ‘delegetus non protest delegare’ but it is apt to be misunder
stood. In my judgment, all that it means is that the legislature cannot
abdicate its legislative functions and it cannot efface itself and set up
a parallel legislature to discharge the primary duty with which it has
been entrusted. This rule has been recognised both in A m erica and
England, and Hughes C.J. has enunciated it in these words:
“ The Congress manifestly is not permitted to abdicate, or to
transfer to others, the essential legislative functions with which it is
thus vested.” "^®
...W h a t constitutes abdication and what class of cases will be covered
by that expression will always be a question of fact, and it is by no
means easy to lay dow n any comprehensive formula to define it, but
it should be recognized that the rule against abdication does not
prohibit the Legislature from employing any subordinate agency of
its own choice for doing such subsidiary acts as may be necessary to
make its legislation effective, useful and complete.
[His Lordship referred to argument put forward by the learned
A ttorney-G eneral that the pow er of delegation is implicit in the
power of legislation,] This argument is based on the principle o f
sovereignty of the legislature within its appointed field....
The learned Attorney-G eneral has relied on the authority o f
Evatt, J., for the proposition that “ the true nature and scope of the
legislative power of the Parliament involves as part o f its content
power to confer law-making power upon authorities other than Parlia
ment itself.” See the V ictorian Stevedoring Case; (1931) 46 C.L.R. 73.
It is undoubtedly true that a legislature which is sovereign within its
own sphere must necessarily have very great freedom o f action, but it
seems to me that in strict point of law the dictum of Evatt, J. is not a
precise or an accurate statement. The first question which it raises
38. Rajnarain Singh v. Chairman, Patna Administration Committee, A I.R, 1954
S, C. 573.
is what is meant by law-making p ow er and w hether such pow er in

the true sense,o f the term can be delegated at a ll A n oth er difficulty
which it raises is that on ce it is held as a general proposition that
delegation of law-m aking pow er is implicit in the p ow er o f legislation
it will be difficult to draw the line at the precise point where the
legislature should stop and it will be permissible to ask w hether the
legislature is com petent to delegate 1, 10 or 99 per cen t o f its
legislative pow er, and whether the strictly logical conclusion will n ot
b e that the legislature can delegate the full con ten t o f its p ow er in
certain cases. It seems to me that correct and the strictly legal way
of putting the matter is as the Privy C ouncil have it in several cases.
Th e legislature in order to function effectively, has to call for
sufficient data, has to legislate for the future as well as for the present
and has to provide for a multipHcity o f varying situations which may
be sometimes difficult to foresee. In order to achieve its o b je ct it
has to resort to various types and form s of legislation, entrusting
suitable agencies with the pow er to fill in details and adapt legislation
to varying circum stances. H ence, what is know n as conditional
legislation, an expression which has been very fully explained and
described in a series o f judgments, and what is know n as subordinate
legislation, which involves giving p ow er to subordinate authorities to
effectuate the ob ject and purpose for w hich a certain law is enacted,
have been recognized to b e permissible forms o f legislation on the
principle that a legislature can do everything w hich is ancillary to or
necessary for effective legislation. O n ce this is conceded, it follow s
that the legislature can resort to any other form o f legislation on
the same principle, provided that it acts within the limits of its power,
whether im posed from w ithout or conditioned by the nature o f the
duties it is called upon to perform .
'y ' The conclusions at w hich I have arrived so far may now be
summed up ;
(1 ) The legislature must normally discharge its primary legislative
function itself and n ot through others. (2) O n ce it is established
that it has sovereign pow ers within a certain sphere, it must follov^
as a corollary that it is free to legislate within that sphere in any w a jt;
w hich appears to it to be the best way to give effect to its intentiori
and policy in making a particular law, that it may utilise any outside
agency to any ex te n t it finds necessary for doing things which it i s ,
unable to do itself or finds it inconvenient to d o ., In other words, it
can do everything which is ancillary to and necessary for the full and
effective exercise of its pow er o f legislation (3 ) It cannot abdicate its
legislative functions, and therefore, while entrusting ,t>ower to an

outside agency, it must see that such agency acts as a subordinate
authority and does not becom e a parallel legislature. (4 ) The
doctrine of separation of powers and the judicial interpretation it has
received in America ever since the A m erican C onstitution was
framed, enables the A m erican Courts to check undue and excessive
delegation but the C ourts of this country are n ot com m itted to that
doctrine and cannot apply it in the same way as it has been applied in
Am erica. Therefore, there are only tw o main checks in this country
on the pow er of the legislature to delegate, these being its good sense
and the principle that it should not cross the line beyon d which
delegation amounts to “abdication and self-effacem ent.”
[Referring to the section validity o f which was being considered.]
There can be no doubt that the powers which have been granted to
Governm ent are very extensive,...but, in my judgment, n otw ith
standing the somewhat unusual features...the provisions in question
cannot be held to be invalid.
...T h e situation with which the respective legislatures w ere faced
when these A cts w ere passed was that there w ere certain State or
States with no local legislatures and whole bundle o f laws had to be
enacted for them. It is clear that the legislatures concerned, before
passing the A cts, applied their mind and decided firstly, that the
situation w ould b e m et b y the adoption o f laws applicable to the
other Province inasmuch as they covered a wide range of subjects
apprdached from a variety of points of view and hence the
requirements of the State or States for which the laws had to be
framed could n ot go beyond those for which laws had already been
fram ed b y the various legislatures, and secondly, that the matter
should be entrusted to an authority which was expected to be
familiar and could easily make itself familiar with the needs and
conditions of the State or States for which the laws were to be made.
Thus, everyone of the A cts so enacted was a com plete law, because
it em bodied a policy, defined a standard, and directed the authority
chosen to act within certain prescribed limits and not to go beyond
them. Each A c t was a com plete expression o f the will o f the
legislatures to act in a particular way and o f its command as to h ow
its will should be carried out. The legislature decided that in the
circumstances o f the case that was the best way to legislate on the
subject and it so legislatedt It will be a misnomer to describe such
legislation as amounting to abdication o f powers, because from the
very nature of the legislation it is manifest that the legislature had
the pow er at any moment of withdrawing or altering any power with

which the authority chosen was entrusted, and cou ld change or repeal
the laws w hich the authority was required to make applicable to the
State or States concerned. W h at is even more im portant is that in
each case the agency selected was not em powered to enact laws, but
it could only adapt and extend laws enacted b y responsible and
com petent legislatures. Thus, the powder given to the Governm ent
in those A cts was more in the nature o f ministerial than in the nature
o f legislative pow er. The power given was ministerial, because all
that the G overnm ent had to do was to study the laws and make
selections out o f them ....
It is to be borne in mind that the discretion given to m odify a

statute is by no means absolute or irrevocable in strict legal sense,
with which aspect alone w e are principally concerned in dealing with
purely legal question. A s was pointed ou t by Garth, C, J. in ‘Empress
v. Burah’ 3 Cal. 63 at p. 140, the legislature is
“ always in a position to see how the powers, which it has
conferred, are being exercised, and if they are exercised
injudiciously, o i otherwise than in accordance with its intentions,
or if having been exercised, the result is in any degree
inconvenient, it can always b y another A c t recall its pow ers or
rectify the in con ven ien ce” . -
I will n ow deal with section 2 of the part C States (L aw s) A ct,

1950, in so far as it gives p ow er to the Central Governm ent to make a
provision in the enactm ent extended under the A c t for the repeal or
amendment o f any corresponding law w hich is for the time being
applicable to the Part C State concerned. N o doubt this pow er is a
far-reaching and unusual one, but, on a careful analysis, it will be
found to be only a concom itant o f the p ow er of transplantation and
modification. If a new law is to be made applicable, it may have to
replace sorrie existing law which may have becom e out-of-date or
ceased to serve any useful purpose, and the agency which is to apply
the new law must be in a position to say that the old law would ceaê':
to apply...
[The separate opinions o f Patanjali Sastri, Mahajan, MukJaerjesii'
Das and Bose, JJ. have te e n omitted.]
NOTES
In In re: Delhi Laws Act case, the Justices o f the Supreme C ou rt

rendered seven lengthy opinions. They seem to have arrived at a
consensus o f opinion on the follow ing p o in ts ; It is practically
essential that Parliament should have p ow er to delegate legislative
p o w e r ; that there is no doctrine of separation o f pow ers in In d ia ;
that the Indian Parliament, working under a written constitution,
cannot claim the same freedom as the British Parliament in the
matter o f delegation. But no clear guidance emerged on the question
o f permissible limits within which Indian Parliament could delegate.
Fazl Ali, Sastri and Das, JJ., put the limit at “ effacem ent or
abdication.” Das, J. explained the con cep t of effacement thus ;
Parliament should never give up its con trol over the subordinate
authority to whom it delegates its law-making p o w e rs ; it must not
w ithout preserving its ow n powers intact, create arm with its own
capacity a new legislative pow er not created or authorised b y the
con stitu tion ; it must not destroy its ow n legislative power. The
m ajority, on the other hand, took a more restrictive view and held
that if the legislature hands over its “ essential legislative p o w e r" to
an outside authority that w ould amount to abdication and be bad.
Essential legislative function has been explained to mean the
determ ination or choosing o f the legislative policy and o f formally
enacting that policy into a binding rule o f con d u ct” .
Subsequently in the Rajnarain case, the Supreme court itself

sought to rationalize the Delhi laws Act case. Bose, J., on behalf of
an unanimous C ourt stated:
“ Th e C ourt had befort it [ In re: Delhi Laws Act case J the

follow ing problems. In each case, the Central Legislature had
em powered executive authority under its legislative control to apply,
at its discretion, laws to an area which was also under the legislative
sway of the Centre. The variations occu r in the type of laws w hich
the executive authority was authorised to select and in the
modifications which it was em powered to make in them. The
variations were as follows :
(1 ) W h e re the executive authority was permitted, at its

discretion, to apply without m odification (save incidental changes
such as name and place), the w hole o f any Central A c t already
in existence in any part df India under the legislative sway o f
the Central to the new a rea ;
This was upheld by m ajority o f six to one.

(2) W h e re the executive authority was allow ed to select and
apply a Provincial A c t, in similar circum stances :
This was also upheld, b u t this time by a m ajority o f five to tw o.
(3) W h e re the executive authority permitted to select future
Central laws and apply them in a similar w a y ;
This way upheld by five to two.
(4) W h e re the authorization was to select future Provincial
Laws and apply them as above:
This was also upheld by five to tw o.
(5) W h e re the authorization was to repeal laws already in force in
the area and either substitute nothing in their places or substitute
other laws, Central or Provincial, w ith or without modification :
This was held to be ‘ultra vires’ by a m ojority o f four to three.
(6 ) W h ere the authorisation was to apply existing laws, either
Central or Provincial, w ith alterations and m odification s; and
(7) W h e re the authorization was to apply future laws under the
same conditions.
In the cases given below , one cou ld see the operation of the
doctrine o f ‘excessive delegation’ as it has been dealt with by the
Superme C ourt in con crete situations.
HARISHANKAR BAGLA v. THE STATE OF M ADHYA PRADESH

A .l.R. 1954 S.C. 465
[The C otton Textiles (C on trol of M ovem en t) order, 1948

introduced a permit system fo r m ovem ent o f cloth. T he order was
promulgated under section 3 o f the Essential Supplies (Tem porary
Pow ers) A ct, 1946.
Bagla was arrested for carrying cloth w ithout permit. H e came
before the Supreme C ou rt to contest the validity o f the C otton Ordljf
on the ground, inter alia^ that Sections 3 and 6 o f the A c t were invalid
on the ground o f excessive delegation o f legislative power.
Sections 3 and 6 o f the Essiifiîl Supplies (Tem porary Pow ers)
A c t, 1946, provide as follow s
3(1) The C entral Governm ent, so far as it appeals t 0 ; it to be
necessary or expedient for maintaining or increasing supplies o f
any essential com m odity, or for securing their equitable

distribution and availability at fair prices, may by order provide
for regulating or prohibiting the production, supply and
distribution thereof and trade and com m erce th erein .... (2)
W ith ou t prejudice to the generality of the powers conferred by
sub-section (1), an order made thereunder may provide—
(a ) for regulating by licences, permits or otherwise the
production or manufacture o f any essential com m odity;...
(b ) for regulating by licences, permits or otherw ise the
storage, transport, distribution, disposal, acquisition, use
or consumption o f any essential com m odity.
(6) A n y order made under section 3 shall have effect notw ith
standing anything inconsistent therewith contained in any
enactm ent other than this A c t or any instrument having effect
b y virtue o f any enactment other than this A ct.
T h e H igh C ourt o f N agpur in Hiralal v. The State, h a d declared
section 6 of the Essential Supplies (Tem porary Pow ers) A c t, 1946 void
on the ground that it “ confers a pow er of the w idest amplitude to
make an order which may be inconsistent with the pre-existing law ”
and so was ‘nothing short o f a pow er to repeal.’ The C ou rt referring
to the Dehli Laws Act case pointed out that the legislature cannot
create a new legislature for the purpose o f legislating generally;
abdication does not consist merely in creating a parallel or
independent legislature. W h en a legislature confers a pow er on
some other authority to repeal an existing law it will be deemed to
have abdicated its legislative function.
The H igh Court of Allahabad also expressed a similar view with
respect to section 6 in Bhushan Lai v. State.^^ These views were
overruled by the Supreme C ourt in the Bagla Case.]
Mahajan, C. J.
[The contention] that section 3 of the Essential Supplies
(T em porary Powers) A ct, 1946, amounts to delegation o f legislative
p ow er outside the permissible Hmits is again without any merit. It
was settled b y the majority judgment in [the Delhi Laws Act case] that
essential powers o f legislation cannot be delegated. In other words,
the Legislature cannot delegate itsiitnction of laying down legislative
policy in respect o f a measure ancîts form ulation as a rule o f conduct.
39. A. I. R. 1953 Nag. 58.
40. A. I. R. 1952 All. 866.
41. Hari Shanker Bagla v.M. P. State, A, I. K. 1959 S. C. 965,
The legislature must declare the policy o f the law and the legal
principles w hich are to con trol any given cases and must provide a
standard to guide the officials or the body in pow er to execute the law.
The essential legislative function consists in the determination or
choice o f the legislative policy and of form ally enacting that policy
into a binding rule o f conduct.
In the present case the legislature has laid dow n such a principle
and that principle is the maintenance or increase in supply of
essential com m odities and of securing equitable distribution and
availability at their fair prices. The principle is clear and offers
sufficient guidance to the Central Governm ent in exercising its
powers under section 3. Delegation of the kind m entioned in
section 3 was upheld b efore the Constitution in a nnmber o f decisions
o f their Lordships o f the Privy Council, vide— Russell v. Reg (1882)
7 A .C . 829; Hodge y. Reg. (1884) 9 A .C . 117, ‘Shannon v. Lower Mainland
Dairy Products Board,' 1938 A .C . 708 and since the com ing into force
o f the constitution delegation o f this character has been upheld in a
number o f decisions o f this C ourt on principles enunciated b y the
majority in [th e Delhi Law Act Case]. A s already pointed out, the
pream ble and the b od y of sections sufficiently form ulate the
legislative p o licy and the ambit and character o f the A c t is such that
the details of that policy can only b e w orked out by delegating
them to a subordinate authority within the fram ew ork of that
p olicy..,.
....S ection 6 o f the A c t cited above declares that an order made
under Section 3 shall have effect notwithstanding anything inconsistent
therew ith contained in any enactment other than this A c t or any
instrument having effect b y virtue o f any enactm ent other than this
A ct. In other w ords it declares that if there is any repugnancy in
an order made under Section 3 with the provisions of any other
enactment, then notwithstanding that inconsistency the provisions
o f the O rder w ill prevail in preference to the provisions o f other
laws which are thus inconsistent with the provisions of the Order,
In the view of th e H igh C ou rt the p ow er to do something which may
have the effect o f repealing, by im plication, an existing law could not,
b e delegated in view o f the m ajority decisions o f this Coui;fr
[the Delhi Laws A ct case], w here i%âs held that to repeal o r abrptaite
an existing law is the exercis^^^L an essential^:legislative power.
T h e learned judges o f the H igh f t o lr t thought" that the conferm ent
o f pow er o f the widest amplitude to make an ofd er inconsistent A v it h
the pre-existing laws is nothing short o f a pow er to repeah
In our opinion the construction placed on Section 6 by the

H igh C ourt is not right. Section 6 does not either expressly or by
im plication repeal any of the provisions of pre-existing laws; neither
does it abrogate them, Those laws remain untouched and unaffected
so far as the statute b o o k is concerned. The repeal o f a statute
means as if the repealed statute was never on the statute b ook . It
is wiped out from the statute b ook. The effect of Section 6
certainly is not to repeal anyone of those laws or abrogate them.
Its object is simply to by-pass them where they are inconsistent
with the provisions o f Essential Supplies (Tem porary Pow ers)
A ct, 1946, or the orders made thereunder. In other words, the orders
made under Section 3 would b e operative in regard to the essential
com m odity covered by the T extile C ontrol Order wherever there
is repugnancy in this O rder with the existing laws and to that extent
the existing laws with regard to those commodities will not operate.
By-passing a certain law does not necessarily amount to repeal or
abrogation o f that law. That law remains unrepealed but during the
continuance of the order made under Section 3 it does not operate
in that field for the time being. The ambit of its operation is
thus limited without there being any repeal of anyone o f its
provisions.
Conceding, however, for the sake of argument that to the
extent o f a repugnancy betw een an order made under Section 3 and
the provisions o f an existing law, to the extent o f the repugnancy,
the existing law stands repealed by implication, it seems to us that
the repeal is not by any A c t of the delegate, but the repeal is by
the legislative A ct of the Parliament itself. By enacting section 6
Parliament itself has declared that an order made under Section 3
shall have effect notwithstanding any inconsistency in this order
w ith any enactment other than this A ct, This is n ot a declaration
made by the delegate but the legislature itself has declared its will
that way in Section 6. The abrogation or the implied repeal is b y
force o f the legislative declaration contained in Section 6 and is not
by force of the order made by the delegate under Section 3. The
pow er o f the delegate is only to make an order under Section 3,
O nce the delegate has made that order its pow er is exhausted.
Section 6 then steps in wherein tl|e Parliament has declared that as
soon as such an order come|- into being that will have effect
notwithstanding any inconsistency therewith contained in any
enactment other than this A ct. Parliament being supreme, it certainly
could make a law abrogating or repealing by im plication provision
of any pre-existing law and no exception could be taken on the

ground of excessive delegation to the A c t of the Parliament itself.
There is no delegation involved in the provisions of Section 6 at all
and that section could not b e held to be unconstitutional on
that ground.
A ppeal dismissed.
BHATNAGARS & CO. LTD. v. THE UNION OF INDIA

A. I. R. 1957 S.C. 478.
[The petitioner obtained a licence under the Imports and

Exports (C on trol) A c t, 1947, for the import o f soda ash and in
pursuance o f that licence few consignments o f the goods were
received at Bombay. On receiving inform ation that the petitioner,
in fact, was trafficking in these licences, investigation was made by
the Special Police Establishment and the com plaint was confirmed.
Consequently, the consignments were seized b y the C ollector o f
Customs. The petitioner challenged the Customs Order first before
the Central Board o f R evenue and then the Central Government,
but no relief was granted. The main grievance o f the petitioner was
in regard to the illegal seizure of the goods and against the virtual
invalidation o f his licences fo r import.
The petitioner contended, inter alia, that section 3 (1) (a ) of the
Imports and Exports (C o n tro l) A ct, 1947, was ultra vires as it
amounted to delegated legislation.
Section 3 (1 ) (a) provides :
(1) The Central Governm ent may, by order published in the
official G azette, make provision for prohibiting, restricting or
otherwise controlling in all cases or in specified classes of cases, and
subject to such exceptions, if any, as may be made b y or under the
order,—
(a) the im port, export, carriage coastwise or shipment as ships’
stores of goods o f any specified description.]
Gajendragadkar, J.:
...T h e challenge to the validity of the legislative enactments on
the ground o f delegated legislatioiii often enough presents problems
which are n ot easy of solution.f The recent history o f judicial
dedsjons, however, shows that, though th©|e is ./qonsiderable
divergence o f opinion in the approach to the quesfidn of 4e3ling with
such a challenge, some principles may be ' t p be fairly well settled.
T h ere is no doubt that legislation which is conditional, properly so

called, must be distinguished from legislation which is delegated.
Shri Umrigar [counsel for the petitioners] concedes that where the
Legislature provides and lays dow n principles underlying the
provisions o f a particular statute and also affords guidance for the
implementation or enforcem ent of the said principles, it is open to the
Legislature to leave the actual implementation or enforcem ent to its
chosen delegate. The time when the provision should be implemented,
the period during which it should b e implemented or the place where
it should be applied can, according to him, in appropriate cases be
validly left by the Legislature to its delegate. H e, how ever, contends
that, in the impugned A ct, the Legislature does n ot lay down
principle and gives no guidance to the delegate while leaving the
implementation of the statutory provisions to him and consequently
the validity of the legislative enactm ent suffers from a serious
infirmity on the ground that the Legislature has surrendered its
legislative pow er in favour o f its delegate. In dealing with this narrow
ground of challenge, it w ould be necessary to consider the preamble
and the material provisions o f the A c t to find out whether questions
o f policy have been clearly decided by the Legislature and whether"
guidance has been given to the delegate in the m atter of implementing
the provisions of the statute. U nfortunately for Shri Umrigar his
challenge to the validity o f the impugned section under the Imports
and Exports A c t is com pletely covered by the decision o f this C ourt
in Hanshankar Bagla v. The State o f Madhya Pradesh, A L R. 1954
S.C. 465.. .
...In other words, in considering the question as to whether
guidance was afforded to the delegate in bringing into operation the
material provisions of the A c t b y laying down principles in that
behalf, the Court considered the statement o f the principles contained
in the preamble to the A c t as well as in the material provisions of
S.3 itself. This decision^^ shows that if we can find a reasonably clear
statement of policy underlying the provisions of the A c t either in the
provisions of the A c t or in the preamble, then any part of the A c t
cannot be attacked on the ground of delegated legislation by
suggesting that questions of policy have been left to the delegate.
Turning to the impugned sections o f the present A ct, it is necessary
to remember that^^the present A c t purports to continue fo r a
limited period powers to prohibit or control imports and exports
which had already been enacted b y the D efen ce of India A c t and the
41. IJqri Shanker Ba^la v. Th? Stqte o f Madhya Pradesh^ A,I,R. 1954 S.C, 465,
SECTION 4 ] delegated LEGISLATION 227
Rules framed thereunder. In other words, this A c t does not purport

to enact the material provisions for the first time but it purports to
continue the previously existing provisions in that behalf and so it
would be legitimate to consider the pream ble of the predecessor A c t
and relevant provisions in it to find out w hether the Legislature has
laid down clearly the policy underlying that A c t and has enunciated
principles for the guidance o f those to whom authority to implement
the A c t has been delegated. The preamble to the present A c t says
that it was expedient to continue for a limited period powers to
prohibit, restrict or otherwise control imports and exports. The
preamble to the D efen ce o f India A ct refers to the em ergency w hich
had arisen when the A c t was passed and refers, inter alia, to the
necessity to tak e special measures to ensure the public safety and
public interest. S ection 2 o f the said A c t further provides that the
Central Governm ent thought that it was essential to secure public
safety and maintenance o f public order and, what is more relevant
and material, the maintenance o f supplies and services essential to
the life of the com m unity. Thus it is clear that the broad and main
principle underlying the present A ct, like its predecessor, was to
maintain supplies essential to the life of the com munity. Thus, if the
preamble and the relevant section of the earlier A c t are read in the
light of the pream ble o f the present A ct, it w ould be difficult to
distinguish this A c t from the Essential Supplies A c t w ith which this
Court was con cern ed in Harishankar Bagla’s case....
D. S. G AREW AL v. STATE O F PUNJAB

A. I. R. 1959 S. C. 512
[The constitutionality o f the A ll-India Services A ct, 1951, was

challenged, inter alia, on the follow ing grounds ;
(1 ) A rticle 312 laid a mandate on Parliament to make a law
regulating the recruitm ent and conditions o f service o f A ll-India
services created under that A rticle and Parliament could n ot delegate
this function to the C entral Governm ent, and, therefore, section 3 of
the A c t was invalid ;
(2) In any event, the delegation made b y section 3 o f the A c t
was excessive and, therefore, section 3 should b e struck down.
■Section 3 lays dow n that the Central G overnm ent may, after
consultation with the Governm ents o f the States concerned, make
rules for the regulation pf recruitm ept a p . 4 ; ^ service of
persons appointed to an all-India service. It also lays dow n that all

rules made under this section shall be laid for not less than fourteen
days before Parliament as soon as possible after they are made, and
shall be subject to such modifications, whether by way o f repeal or
amendment, as Parliament may make on a m otion made during the
session in which they are so laid ]
Wanchoo^
...It is contended that A rt. 312 lays down a mandate on Parliament
to make the law its;elf regulating the recruitment and the conditions
o f service o f All-India services, and therefore, it was not open to
Parhament to delegate any part of the w ork relating to such
regulation to the Central Governm ent by framing rules for the
purpose. N ow , it is well-settled that it is com petent for the legislature
to delegate to other authorities the power to frame rules to carry out
the purposes of the law made by it. It was so held by the majority of
Judges in re Delhi Laws Act, 1912, A .I.R . 1951 S.C. 332...The Delhi Laws
CQse^ was further examined 'in Rojnarain Singh v- Chairman, Patna
Administration Committee, Patna A.I.R. 1954 S.C. 569... and the
delegation was held to go to the extent of authorising an executive
authority to modify the law made but not in any essential feature.
It was also observed that what constitutes essential feature cannot be
enunciated in general terms. It is, therefore, clear that delegation of
legislative functions can be made to executive authorities within
certain limits ... Mr. Chatterjee [counsel for the appellant] contends
that no delegation whatsoever was possible under A rt. 312 and that
the C onstitution required that Parliament should itself frame the
entire law relating to the regulation of recruitment and the conditions
o f service of all-India services. W e have, therefore, to see whether
there is anything in the words o f Art. 312 which takes away the
usual pow er of delegation, which ordinarily resides in the legislature.
Stress in this connection has been laid on the words, “ Parliament may
by law provide appearing in A rt. 312. It is urged that these words
should be read to mean that there is no scope for delegation in a law
made under A rt. 312. Our attention in this connection was drawn to
words used in A rt. 245, which are “ Parliament may make laws." It
is said that the words used in Art. 312 are in a special form, which
import that Parliament must provide by law for regulation o f
recruitment and the conditions o f service and cannot delegate any
part of it to other authorities,... L et us, therefore, examine Art- 312
from this angle, and sec if the intention of the Constitution was that
regulation of recruitment and conditions pf s^rvic? to an all-India
service should only be by law and there should be no delegation o f

an3^ power to frame rules. Regulation o f recruitm ent and conditions
o f service requires numerous and varied rules, w hich may have to be
changed from time to time as the exigencies of pubhc service require.
This could not be unkown to the Constitution makers and it is n ot
possible to hold that the intention o f the Constitution was that these
numerous and varied rules should be framed by Parliament itself and
that any amendment o f these rules which may be required to meet
the difficulties o f day-to-day administration should be made b y
Parliament only w ith all the attending delay w hich passing of
legislation entails. We are, therefore, of opinion that in the
circumstances o f A rt. 312 it could not have been the intention o f the
Constitution that the numerous and varied provisions that have to
be made in order to regulate the recruitm ent and the conditions o f
service of all-India services should all be enacted as statute law and
nothing should b e delegated to the executive authorities. In the
circumstances w e are o f opinion that the words used in A rt. 312 in
the context in which they have been used do n ot exclude the
delegation o f p ow er to frame rules for regulation of recruitm ent and
the conditions o f service o f all-India services. We cannot read
A rt. 312 as laying dow n a mandate prohibiting Parliament from
delegating authority to the Central Governm ent to frame rules for
the recruitm ent and the conditions of service o f all-India services.
W e , therefore, reject this contention.
The argument in this con n ection is that even if delegation is
possible, there was excessive delegation in this case, and, therefore,
the A c t should be struck down. The A c t is a short A c t o f four
sections. Th e first section deals with the short title, the second
section defines the expression “ all-India Service,” and the third section
gives pow er to the Central G overnm ent to frame rules for regulation
o f recruitment and the conditions o f service after consultation with
the Governm ents o f the States concerned, and lays down that all
rules so framed shall b e laid before Parliament and shall be subject
to such m odifications as Parliament may make. Section 4 which is
im portant is in these terms—
“ A ll rules in force immediately b efore the com m encement of
this A c t and applicable to an A ll-India service shall continue to
be in force and shall be deemed to be rules made under this
A c t .”
It is urged that this A c t lays down no legislative policy or standard
at all and everything is left to the Central G overnm ent... It is said
230 IHDIAH ADMINISTRATIVE L A W [ CHAPTER 4
that in this case Parliament did n ot even exercise the essential

legislative function inasmuch as it did not determine or choose the
legislative poHcy and form ally enact that policy into a binding rule of
con du ct. A pparently, if one looks at the A ct, there seems to be
some force in this contention. But a close reading o f S. 4 o f the A c t
and its scope, purpose and effect w ill show that this is not a case
where the legislature has failed to lay down the legislative p olicy and
formally enact that p olicy into a binding rule o f conduct. W h a t does
S. 4 in fact provide ? U ndoubtedly there w ere rules in force
immediately before the com m encem ent o f the A c t w hich governed
the tw o all-Indian services covered by it and the legislature adopted
those rules and said in S, 4 that they shall continue to be in force*
Thus though S. 4 appears on the face of it as one short section of
four lines, it is in effect a statutory provision adopting all the rules
which w ere in force at the com m encem ent of the A ct, governing the
recruitm ent and the conditions o f service o f the tw o all-India services.
The section certainly lays dow n that the rules already in force shall
be taken to be rules under the A ct; but that was necessary in order
CO enable the Central Governm ent under S. 3 to add to, alter, vary
and amend those rules. There is no doubt, however, that S. 4 did lay
dow n that the existing rules will govern the tw o all-India services in
the matter o f regulation o f recruitm ent and conditions o f service, and
in so far as it did so it determined the legislative p olicy and set up a
standard fo r the Central Governm ent to follow and form ally enacted
it into a binding rule o f conduct. Further by S. 3 the Central
G overnm ent was given the power to frame rules in future which may
have the effect of adding to, altering, varying or amending the rules
accepted under under S. 4 as binding. Seeing that the rules would
govern the all-India services com m on to the Central G overnm ent and
the State Government, provision was made by S. 3 that rules should
b e framed only after consulting the State Governm ent. A t the same
time Parliament took care to see that these ruks were laid on the
table of Parliament for fourteen days before they w ere to com e into
force and they were subject to modification, whether by w ay of
repeal or amendment on a motion made by Parliament during the
session in which they are so laid. This makes it perfectly clear that
Parliament has in no way abdicated its authority, but is keeping strict
vigilance and control over its delegate. Therefore, reading S. 4
alongwith S. 3(2) o f the A c t it cannot be said in the special
circumstances o f this case that there was excessive delegation to the
Central Government by S. 3 (1). W e are, therefore, o f opinion that
the A c t cannot be struck down on the ground of excessive delegation.
s e c t io n 4] lÊLEGATEB LEGISLATION 231
V A SAN LA L M AGAN BH AI v. STATE OF B O M B A Y

A. I. R. 1961 B.C. 4
[Section 6 (1) of the Bombay Tenancy and A gricultural Lands

A ct, 1948, fixed the maximum rent payable by a tenant for the lease
o f any land. Section 6(2), however, authorised the Provincial
Government, b y notification in the Official Gazette, to fix a rate
low er than the maximum rent prescribed as payable b y the tenants
of lands situated in any particular area or to fix such rate on any
other suitable basis ‘as it thinks fit.’
Section 6(2 ) was challenged on the ground of excessive

delegation. It was argued that the p ow er delegated to the
Government was unfettered and uncanalised w ithout any guidance
being afforded to it for its exercise, and for fixing the low er rate, the
Legislature had n ot prescribed any minimum].
Gajendragadkar, J.;
The pream ble shows that the ob ject o f the A c t inter-alia was to
improve the econ om ic and social condition o f peasants and ensure
the full and efficient use o f land for agriculture. W ith that o b je ct
the A c t has made several provisions to safeguard the interests o f the
tenants.., [Referring to the various sections o f the A ct, he pointed
out].
,..[T ]h a t the material provisions of the A c t aim at giving relief to the

tenants by fixing the maximum rent payable by them and by providing
for a speedy machinery to consider their complaints about the
unreasonableness o f the rent claimed from them by their respective
landlords. It is in the light o f this p olicy o f the A c t which is writ
large on the fa ce of these provisions that w e have to consider the
question as to w hether the delegation made by S. 6(2) sufJers from
the infirmity o f excessive delegation.
Broadly stated S. 6 (2 ) seeks to provide for the fixation o f a

low er rate o f maximum rent areawise. W e have already seen that
individual tenants are given the right to apply for the fixation o f
reasonable rent by S. 12, and specific factors have been specified
which the M amlatdar must consider in fixing a reasonable rent. •T h e
Legislature realised that a large num ber o f tenants in the State
were poor, ignorant and in many cases helpless, a n d ; it was thought
that many o f them may not be able to make ittdividual applications
for the fixation o f a reasonable rent undeli S. 12. That is why it was
thought necessary to confer upon the Provincial Governm ent the

povêr to fix a lower rate o f the maximum rent payable b y tenants
in respect of particular areas. In a sense what could be done by
the Mamlatdar in individual cases can b e achieved by the Provincial
G overnm ent in respect of a large number of cases covered in a
particular area. If that be so, the legislative policy having been
clearly expressed in the relevant provisions and the factors for
determining reasonable rent also having been specified in S. 12(3),
it is difficult to accept the argument that the Provincial Governm ent
has been given uncanalised or unfettered powers by S. 6(2) to do
what it likes w ithout any guidance.... The relevant conditions of
agriculture would not be uniform in different areas and the problem
of fixing a reduced maximum rent payable in the respective areas
would have to be tackled in the light of the special features and
conditions of that area; that is why a certain amount of latitude had
to b e left to the Governm ent in fixing the lower rate o f the maximum
rent in the respective areas, and that is intended to be achieved by
giving it liberty to adopt a basis which it thinks is suitable for the
area in question. T h e word “ suitable” in the context must mean
‘ suitable to the area’ having regard to the other provisions o f the A c t
^such as S. 6(1) and S. 12. It is true that the p ow er to fix a
reasonable rent conferred on the Mamlatdar under S. 12 is subject
to the pow er of the Provincial Governm ent under S. 6(2). Even so we
think it would be difficult to hold that the factors prescribed for the
guidance of the M amlatdar would have no relevance at all when the
Provincial G overnm ent acts under S, 6(2). In our opinion, therefore,
having regard to the legislative policy laid down by the A c t in its
preamble and in the other relevant sections to which we have
referred, and having regard to the guidance which has been provided
for fixing a reasonable rent under S. 12(3), it would n ot be possible
to hold that the power delegated to the Provincial G overnm ent by
S. 6 (2 ) suffers from the infirmity of excessive delegation. The fact
that no minimum has been prescribed would not materially affect
this position.
StM a Rao, J. (dissenting)
Prima facie in S. 6 (2) the legislature has not laid down any poHcy
or any standard to enable the Provincial Governm ent to reduce the
maximum rent fixed under S. 6 (1). W h a t is the limit o f the low er
rate the Government is empowered to fix ? W h a t is the extent o f
the area with reference to which that rate can be fixed ? W h a t are
the conditions prevailing in a particular area which require the
reduction o f the maximum rent ? Even if there are conditions

justifiable for reduction o f the maximum rent, what is the basis for
that reduction ?,... The situation o f a land in a particular area cannot
in itself afford a basis for fixing a specified rate o f maximum rent.
The words “ suitable basis” in the alternative caluse are so vague that
in effect and substance they con fer absolute and arbitrary discretion
on the Provincial Governm ent. W h a t is the standard o f suitability ?
The standard of suitability is only what the G overnm ent thinks
suitable. In this section the legislature in clearest terms abdicated
its essential functions in favour o f the executive authority w ithout
laying dow n any standard for its guidance. In effect, it perm itted
the G overnm ent to amend S. 6(1) o f the A ct. T o illustrate, the
legislature fixes the maximum rent payable by a tenant to his landlord
at X ; the M am latdar after enquiry fixes Y as reasonable rent w hich
is less than X ; the Governm ent in exercise of the pow er conferred
under S. 6(2) can arbitrarily fix Z which is far less than the
reasonable rent; with the result that the entire scheme promulgated
by the legislature breaks. The Governm ent also may select any small
area containing a few landlords and reduce the maximum rent to the
lowest level with the result that the A c t can be w orked out as an
expropriatory measure w hich is contrary to the intention of the
legislature. Learned Counsel for the respon den ts, realising that
arbitrariness is writ large on the face of S. 6(2) attem pted to evolve
the legislative form ula from the preamble to S. 6(1) and S. 12(3) o f
the A c t. I cannot find any indication of the legislative policy in the
manner of fixation o f the low er rate of maximum rent in the
preamble. N o r can I discover any such in S. 6(1). Section 6(1)
contains a clear legislative policy in fixing the maximum rent on
certain identifiable basis. The legislature says in effect in S. 6(2),
“ I have fixed the maximum rent in respect of irrigated lands and
other lands on the basis o f a definite share o f the crops o f such lands,
but you can reduce that maximum rent on any basis you like.”
W h ile S. 6 (1 ) overrides other provisions o f the A ct, S. 6(2) derogates
from S. 6(1) itself. Section 6(2) is capable of being exercised in such
a way that the o b je ct o f S. 6(1) is itself frustrated. Section 6 (1 ) in
effect is made su bject to S. 6(2).
[Refusing to a ccept the contention that the factors mentioned
in S. 12(3) could be read in S. 6(2) he stated :]
...T h e A c t does n ot say so, either expressly or b y necessary implication.
The criteria for fixing rent in S. 12(3) are to afford a guide to
Mamlatdar for fixing reasonable rent. Indeed the sub-clause is
subject to S. 6 indicating thereby that the maximum rent fixed b y the

Governm ent is not the same as the reasonable rent. Indeed if the
reasonable rent determined on the basis of all o r some o f the factors
in S. 12 (3 ) is more than the maximum rent fixed b y the Governm ent
on a suitable basis, the latter prevails over the former. A s the
maximum rent supersedes reasonable rent, the factors governing
reasonable rent need n ot necessarily govern the fixation o f maximum
rent. The attempt to read the factors in S. 12(3) into S. 6 (2 ) is, in
my view, not permissible.,...
The learned A dditional Solicitor-G eneral broadly contended that

the policy of the legislature is to prevent rackrenting and to fix a
reasonable rent and, therefore, any exercise of the pow er under S. 6(2)
is guided b y that policy. This is an exrteme contention and, if accepted,
will enable Parliament and legislatures to confer absolute and unguided
p ow er on the executive. If a legislature can legally be permitted
to lay dow n a broad policy in general terms and confer arbitrary
pow ers on the executive fo r carrying it out,there will b e an end o f
the doctrine o f the rule o f law. If the contention be correct, the
legislature in the present case could have stated in the preamble that
they w ere making the law for fixing the maximum rent and could
have conferred an absolute pow er on the Government to fix suitable
rents having regard to the circumstances of each case. Such a law
cannot obviously be valid. W h en the decision says that the legislature
shall lay dow n the legislative policy and its form ulation as a rule of
conduct, they do not mean vague and general declaration o f policy,
bu t a definite policy controlling and regulating the powers conferred
on the executive for carrying into effect that policy.
A ppeal dismissed
NOTES
1. The effect of a notification under section 15 of the Forward

Contracts (Regulation) A ct, 1952, with reference to particular
commodities is to make forward controls for the sale or purchase o f
those commodities illegal and void. A ll such transactions w ere deemed
to be closed out on the date of the notification and the differences
arising out o f the contracts were to be paid not at the rate originally
fixed by the contracting parties but at the rates fixed b y the Central
Government under section 16 o f the A ct.
Under section 16 the forward con tract was to be closed out “ at

such rate as the Central Governm ent may fix in this behalf, and
different rates may b e fixed for different classes o f such contracts.”
This was challenged on the ground, that It entrusted the Governm ent
vîth arbitrary pow er to fix any price it liked as it did not specify the
basis therefor, nor did the statute give any indication of the
principles underlying the fixation of the price, w ith the result that
sectoin 16 was either a piece o f excessive delegation or offended
A rticle 14 b y conferring an unguided pow er on G overnm ent. T he
C ourt rejected the argument.
The C ou rt examined the scheme o f the A ct, the policy underlying
it and the purposes fo r which it is enacted “ to see if there could b e
found a guidance as to the principles on which the price of selling
out could be fixed by the G overnm ent.” Referring to section 3(2) o f the
Essential C om m odities A c t , 1955, under w hich the Central G overn
ment is empowêred, by making an order, to provide for controlling
the price at which any essential com m odity may be bought and
sold, the C ou rt observed: “ The con trol under the enactment,
as the one n ow under consideration, is to be exercised for ensuring
that the price fixed shall be reasonable having regard to the cost
of production and the general level o f prices prevailing of other like
com modities w hich are the subject of legitimate and proper trade. In
the very nature of things it is n ot possible for the legislature to
determine beforehand the price at w hich a com m odity may be sold
or at which contracts in relation thereto might be entered into. T he
price must be dependent upon factors varying from time to time and
cannot, therefore, be always a proper subject of legislative
determination. A n y fixation of prices either by naming a figure or by
reference to the m arket price ruling on a particular date, must be
productive of hardship b oth b y reason o f being mechanical and
therefore out of tune with the varying factors w hich might obtain
from time to time, as also o f being Hable to manipulation by
unscrupulous traders...
N or is any d efect in the A c t that it does not in so many terms
lay dow n the principles for the fixation o f the price...th e on ly
guidance w hich the Parliament could have given was to direct th at
the price fixed b e reasonable taking into account the relevant fadtors
we have enumerated earlier, and this w e consider is im plicit in the
provision in S. 16 of the A c t as m och as S. 3 o f the Essential
Commodities A c t ." M/s Raghubar Dayal v. Umpn c^f india}'^
42. A. I. R. 1962 S, C. 26^
2. Section 3 (1) of tbe Foreigners A ct, 19^6, runs as follow s ;

“ T he Central Governm ent may b y order make provision either
generally or with respect to all foreigners or with respect to
any particular foreigners for prohibiting, regulating or restricting
the entry of foreigners into India or their departure therefrom
or their presence or continued presence theirin.”
The validity o f the section was challenged on the ground that it
involved an execessive delegation of authority to the Central
Governm ent and that it conferred uncontrolled powers on the Central
G overnm ent over foreigners without any relation to the o b je ct of the
A ct.
Banerjee, J. delivering the judgment referred the long title and
the preamble o f the A c t and held;
“ The ob ject o f the A ct, therefore, is limited to powers over the
entry, presence and departure of foreigners into, in, and from India,
This is a very necessary pow er, which every government must posses
over foreigners, whose presence may be or may, in course o f time,
becom e dangerous to the security of the administration or undesirable
for other reasons. Since such reasons may be many and may arise on
account o f political and other considerations, too numerous to define,
the legislature could not visuaHse all the eventualities and left the whole
matter of foreigners’ presence in India to the executive discretion. The
problem o f immigration and presence of foreigners is difficult for the
legislature to resolve once for all, because the problem is linked up with
many variables, both national and international. A foreigner, on ce a
friendly alien, may becom e an enemy alien after he enters India, if
his country later on enters into war with the country where he
may be; or even though belonging to a friendly nation, a foreigner
may himself indulge in undesirable activities jeopardising the
security o f the country where he may be, or foreigners may com e
in such numbers or put in such com petition as may upset the econom ic
set-up o f the country. It must, therefore, be left to the executive
discretion as to which foreigners should be allowed entry into the
country, under what condition they should stay in the country
and when and how they should depart therefrom. S. 3 o f the
Foreigners A ct,..is not bad for excessive delegation of authority.,.
A part from the guidance given in the preamble to the A ct and in the
section itself, no larger guidance is possible to be given and no set
pattern is feasible to be set up because o f the nature o f the problem
concerning foreigners....” A. H. Magermans v. S. R. Ghosfi/'^
43. A. I. R. 1963 Cal. 369.
3. Section 9(2) of the Citizenship A c t, 1955, provides that if any

question arises as to w hether an Indian citizen has acquired the
citizenship o f a foreign country, it was to be determined by such
authority, in such manner and having regard to such ru les-^ of evidence
as may be prescribed in this behalf by rules. In hhar Ahmad y. Union
o f I n d i a this provision was challenged on the ground that it confers
on the Central Governm ent uncanalised and arbitrary pow er to
make rules w ithout any guidance and therefore amounted to excessive
delegation. T h e Supreme C ou rt rejected the argument that Section 9
(1) has itself provided that an Indian citizen loses his Indian citizenship
if he acquires foreign citizenship by naturalisation or registration.
“ The Legislature knew that the acquisition of the citizenship o f a
foreign State may be made voluntarily even otherwise than b y
naturalisation or registration and so it has provided fo r the third
category o f acquisition o f foreign citizenship under the last clause
“ otherwise voluntarily acquires” so that rule-aiaking [under section
9 (2)] had to be confined primarily to this last category o f acquisition
o f foreign citizenship. T h e basic principle on which the A c t proceeds
and which has been recognised by A rt. 9 of the C onstitution itself is
that no Indian citizen can claim a dual or plural citizenship. The
acquisition o f foreign citizenship can be made b y naturalisation or
registration and as soon as it is so made, the prior Indian Citizenship
is terminated. It is in the light o f these principles which are writ
large on the provisions o f the A c t that the rule-making pow er had
to make rales about the class o f cases falling under the last category
o f acquisition o f foreign citisênship, and the rules show how the task
has been, attempted. W e have already referred to Rr. 1 to 3. Rules
4 and 5 which deal with cases other than those where passport has
been obtained by an Indian citizen, prescribed relevant factors which
have to be considered in each case before deciding whether foreign
citizenship has been acquired by an Indian or not and the impungned
R. 3 itself proceeds on the basis that the conditions prescribed by the
Pakistan L aw take the case o f obtaining a passport from the Pakistan
Governm ent very near to the case o f registration o r naturalisation.
Therefore, having regard to the scheme o f the A c t and the principles
enunciated in its relevant sections, we do not think that it caij be
held that in enacting section 9 (2), the Legislature has abdicated its
essential legislative function in favour o f the rule-making authority.
That is why our conclusion is that section 9 (2) is valid.*’
44. A, I R. 1962 S, C. 1052,

CORPORATION OF CALCUTTA v. LIBERTY CINEMA

A.I.R. 1965 S.C. 1107
[Section 443 of the Calcutta M unicipal A ct, 1951, provides that

no person shall without a licen ce granted by the C orporation keep
open any cinema-house for public amusement. Sub-section (2 ) of
section 548 says that for every licence under the A ct, a fe e may, unless
otherwise provided, be charged at such rate as may from time to time
be provided. In 1948, the C orporation had fixed the scale o f fees on
the basis o f the annual valuation of the cinema-houses. The
respondent obtained a licence for its cinema-house and had been
paying a licence fee o f Rs- 4 00 /- p er year calculated on the aforesaid
basis.
By a resolution passed on M arch 14, 1958 the C orporation
changed the basis of assessment of the licence fee which was to be
assessed henceforth at rates prescribed per show according to the
sanctioned seating capacity o f the cinema houses. Consequently, the
respondent’s cinema house became liable to a fee o f Rs. 5/~ per show,
and thus had to pay a fee of Rs. 6,000/- per year.
The respondent m oved the Calcutta High C ourt under A rticle
226 of the Constitution for a writ quashing the resolution. The H igh
C ourt quashed the resolution of the Corporation. H ence the present
appeal by the Corporation to the Supreme Court.]
Sarkar, J, ; (W ith him Raghubar Dayal and Mudholkar JJ.)
It was then said that if S.548 authorised the levy of a tax as
distinct from a fee in return for services rendered, it was invalid as it '
amounted to an illegal delegation o f legislative functioning to the
C orporation because it left it entirely to the latter to fix the amount
o f the tax and provided no guidance for that purpose..,.
On the basis that S. 548 is a piece of delegated legislation, it has
been contended on behalf o f the Corporation that the rate of a tax
is n ot an essential feature o f legislation and the pow er to fix it was
properly delegated to the C orporation as sufficient guidance for that
purpose was given in the A ct. It is not in controversy, and this indeed
has been held by this Court, that if that is so, the section w ould
be unexceptionable. The question first is whether the pow er to fix the
rate o f a tax can be delegated by the legislature to another authority,
whether it is of the essence o f taxing legislation. The contention o f
the Corporation that fixation of rates is n ot an essential part o f
legislation would seem to be supported by several judgments o f this
C ourt...,
[Referring to Pandit Benarsi Das v. State o f M . P.^® which was

concerned w ith a Sales Tax statute, the C ou rt stated that] the A c t
was a statute imposing taxes for revenue purposes. This case would
appear to be express authority for the proposition that fixation of
taxes may be legitim ately left by a statute to a non-legislative
authority, for w e see no distinction in principle betw een delegation of
pow er to fix rates o f taxes to be charged on different classes o f goods
and pow er to fix rates simpliciter. If p ow er to fix rates in some cases
can be delegated then equally the pow er to fix rates generally can be
delegated. N o doubt Pandit Banarsi D as’s case...w as n ot concerned
with fixation o f rates o f taxes, it was a case w here the question was
on what subject matter, and therefore on what persons, the tax could
be imposed. Between the tw o we are unable to distinguish in
principle, as to w hich is o f the essence o f legislation. If the pow er to
decide who is to pay the tax is not an essential part of legislation,
neither would the p ow er to decide the rate of tax be so. Therefore,
we think that apart from the express observation made, this case on
principle supports the conten tion that fixing o f the rate of a taxis not
o f the legislative p ow er....
' N o doubt when the p ow er to fix rates o f taxes is left to another

body, the legislature must provide guidance for such fixation. The
question then is, was such guidance provided in the A c t ? W e first
wish to observe that the validity o f guidance cannot b e tested b y a
rigid uniform rule: that must depend on the ob ject of the A c t giving
pow er to fix the rate. It is said that the delegation o f pow er to fix
rates of taxes authorised fo r meeting the needs of the delegate to be
valid, must provide the maximum rate that can be fixed, or lay down
rules indicating that maximum. W e are unable to see how the
specifications o f the maximum rate supply any guidance as to h ow
the amount o f the tax w hich no doubt has to b e b elow the maximum,
is to be fixed. Provision for such maximum only sets ou t a limit of the
rate to b e im posed and a limit is only limit and n ot a guidance.)
It seems to us that there are various decisions of this C ourt which

support the proposition that for a statutory provision for raising
revenue for th e purposes o f the delegates, as the section ‘ n ow
consideration is, the needs o f the taxing b od y for carrying dut it s
functions under the statute fo r which alone the taxing pow er was
conferred on it, may afford sufficient guidance to make the pow er to
fix the rate o f tax validj...
' 45. A. I. R . 1958 S. C, 909, infrcf, ^ —

T h e W estern Indian Theatres Ltd. v. M unicipal C orporation of

the C ity o f Poona, A .I.R . 1959 S.C. 586 was concerned with a statute
under which the respondent C orporation had been set up'^'" and which
gave that Corporation pow er to levy “ any other ta x ” . It was
contended that such a pow er amounted to abdication o f legislative
function as there was no guidance provided. T he con ten tion was
rejected. One of the grounds for this view was that the statute
authorised the municipality to impose taxes therein m entioned for
the purposes of the A c t and that this furnished sufficient guidance
for the imposition of the tax. A gain, no doubt, this was n ot a case
dealing 'w ith rates o f taxes, but if a pow er on the C orporation to
impose any tax it liked subject to the guidance mentioned was valid,
that w ould include in it the pow er to fix the rates of the tax,
subject of course to the same guidance. Such a pow er has to be
held to be good^: It is true, as was pointed out b y learned advocate
for the respondent, that other grounds were mentioned in support
o f the view taken in the W estern India Theatres ca se...b u t that
surely is irrelevant, fo r it cannot make the ground of the decision
there which we have earlier set out devoid o f all fo rce ...
The last case which we wish to notice in this con n ection is the
U nion o f India v. Bhana M ai Gulzari Mai; ... A I.R. 1960 S.C. 475.
Section 3 of the Essential Supplies (Tem porary Pow ers) A c t, 1946,
came up for consideration there. That section gave p ow er to the
Governm ent to make necessary orders for maintaining o r increasing
supplies o f any essential commodities or for securing their equitable
distribution and availability at fair prices. In Harishankar Bagla v.
T he State o f Madhya Pradesh....A . I. R. 1954 S. C. 465 the validity of
the delegation of pow er contained in that section had been upheld as it
laid dow n the policy as to how that pow er was to be exercised by the
delegate, that is the Government. In Bhana Mai Gulzari M a i’s case
the validity of an order made under S. 3 reducing the price at which
steel could be sold was challenged. This challenge was rejected on
the ground that the order fixing the price carried out the legislative
object prescribed in S. 3. It was observed at p. 480,
“ It is not difficult to appreciate how and why the Legislature

must have thought that it w ould be inexpedient either to
define or describe in detail all the relevant factors w hich have
to be considered in fixing the fair price o f an essential com m odity
from time to time. In prescribing a schedule o f maximum prices
46. The Bombay District Municipal Act, 1901.

the C ontroller has to take into accou n t the position of the

commodities in question, the demand for the said commodities,
the availability of the said com m odities from foreign sources
and the anticipated increase or decrease in the said supply or
demand. Foreign prices for the said com m odities may also he n ot
irrelevant. H aving regard to the fact that the decision about the
maximum prices in respect of iron and steel would depend on
a rational evaluation from time to time o f all these varied
factors, the Legislature may well have thought that this problem
should be left to be tackled by the delegate w ith enough
freedom, the policy o f the Legislature having been clearly
indicated b y S. 3 in that behalf.”
Again it was said at p, 481,
“ In deciding the nature and extent o f the guidance which should

be given to the delegate, Legislature must inevitably take into
account the special features of the ob ject which it intends to
achieve by a particular statute...H aving regard to the nature
o f the problem which the Legislature wanted to attack it may
have com e to the con clu sion fth at it w ould b e inexpedient to
limit the discretion o f the delegate in fixing the maximum prices
by reference to any basic p rice,"
The portion in the judgm ent in Bhana Mai Gulzari M a i’s case...
quoted in the preceding paragraph w ill show that S ie validity
o f the guidance required to make delegation o f pow er good cannot
be judged by a stereotyped rule. W ith respect, we entirely agree
with this view. The guidance furnished must be held to b e good if
it leads to the achievem ent o f the o b je ct of the statute which
delegated the pow er. T h e validity of the pow er to fix rates o f
taxes delegated to the C orporation by S. 548 o f the A c t must be
judged by the same standard. N ow there is no-dispute that all taxes,
ifl'qluding the..one und^r this secti<m can b e collected and used b y the
C orporation only for discharging its functions under the A ct. The
C orporation subject to certain controls with which we are not
concerned, is an autonom ous body. It has to perform various statutory
functions. It is often given p ow er to decide when and in what
manner the functions arc to b e perform ed. F or all this it needs
money and its needs will vary from time to time with the prevailing
exigencies. Its pow er to co lle ct tax, how ever, is necessarily limited by-
the expenses required to, discharge those functions. It has, therefore,
wh^re rate§ have n ot been specified lA the statute, to fix stich rates as
may b6 necessary to meet its needs. That, we think, would be sufficient

guidance to make the exercise o f its power to fix the rates valid. The
case is as if the statute had required the C orporation to perform
duties A , B and C and given pow er to levy taxes to meet the costs to
be incurred for the discharge o f these duties and then said that,
'^provided, however, that the rates of the taxes shall be such as would
bring into the C orporation s hands the amount necessary to defray
the costs of discharging the d u tie s /’ W e should suppose, this would
have been a valid guidance* W e think the A c t in the present case
impliedly provides the same gu ida n ce; See S. 127 (3) and (4). It
would be impracticable to insist on a more rigid guidance. In the
case o f a self-governing body with taxing powers, a large amount of
flexibility in the guidance to be provided for the exercise o f that
pow er must exist ... There are epidemics, influx o f refugees, labour
strikes, new amenities to be provided for, such as hospitals, schools —
and various other such things may be mentioned.— which make it
necessary for a colossal municipal Corporation like that of Calcutta
to have a large amount of flexibility in its taxing powers. These
considerations lead us to the view that S. 548 is valid legislation.
There is sufficient guidance in the A ct as to how the rate o f the
levy is to be fixed,.;.
Ayyangar, J. (for himself and Subba Rao J.)

The next head o f argument on this point was based on invoking
the principles stated to have been laid down by certain Am erican
decisions to which we were referred. The principal authority on
which reliance was placed was the formulation of the law by Fuller
C. J. is Soiitenburgh v. Hennick, (1889) 129 U. S. 142 : 32 Law. Ed. 637.
Speaking for the majority of the Court he said :
“ It is a cardinal principle of our system of governm ent, that
local affairs shall be managed by local authorities, and general
affairs the central authority; and hence while the rule is .also
fundamental that the pow er to make laws cannot be delegated,
the creation of municipalities exercising local self government
has never been held to trench upon that rule. Such legislation
is not regarded as a transfer o f general legislative power, but
rather as the grant of authority to prescribe local regulations,
according to immemorial practice, subject of course to the
interposition of the superior in cases of necessity.”
There are similar passages in judgments in other cases to w hich also
our attention was drawn. But we do not, however, see the appositeness
of th$ Americaii rule to the interpretation pf the Ipdi&n Congtitytion,
particularly in the context of the criteria there indicated. Besides the

rule as to limits of delegation by the legislatures constituted in India
by the Constitution has been the subject of elaborate consideration
by this C ourt in the Delhi Laws A ct case .. and in the later decisions
in Vasanlal M aghanbhai Sanjanwala v. The State o f Bombay, A .I.R .
1961 S. C. 4; Jyoti Pershad v. The A dm inistrator for the U nion
Territory of Delhi, A .I.R . 1961 S. C. 1602 to m ention a few and these
decisions bind this Court. These decisions have n ot k id down that
a different rule applies where the delegation o f legislative pow er is in
favour o f a municipal corporation. W e , therefore, consider that the
analogy of the A m erican decisions affords no guidance for the
application of a different rule as to what constitutes excessive
delegation in the case of legislation creating m unicipal bodies.
If then the same tests have to be applied to determine the limits

of permissible delegation o f quasi legislative pow er whether the same
be in favour o f municipal bodies or in favour of other administrative
agencies, the question next to be considered is w hether *the A c t
affords sufficient guidance to the municipal authority for the levying
of the rate. T he su bject o f the limits of the delegation o f legislative
power has been the subject o f consideration in several decisions of this
Court including the Delhi Laws A c t case m entioned a b ov e-••
If the validity o f S. 548 (2) of the A c t be judged by this test, the

questions that arise a r e : (1 ) W hether the pow er to determine the
rate of a tax is an essential legislative function or is it merely a minor
and incidental matter, (2 ) Assuming it is an essential legislative
function, whether the A c t has indicated with reasonable certainty
the principles upon w hich that pow er has to be exercised or laid
down the standards for the fixation of the rate. N ow , on the first
point as to whether it is an essential legislative function or not, the
submission o f M r. Pathak was that it was not, and for this purpose
he relied principally on three decisions o f this C ourt the first one
[ Banarsi Das v. The State o f M. P. ] xvas concerned with the
constitutional validity o f a provision in the C.P. Berar Sales Tax A ct,
1947, which conferred upon Governm ent power to withdraw certain
exemptions from the tax as levied by the A c t...M r . Pathak submitteci
that this was an explicit decision holding that the determination of
a rate at which a tax might be levied was n ot an essential legislative
function. O n the other hand, M r. D e urged that the emphasis in the,
passage was really on “ different classes of goods”— and not on the
determination of a rate sim pliciter,... W e see considerable force in
2ii INDIAN ADMINISTRATIVE LAW [ CHAPT
this agrument and as we shall show by a reference to later decisions

o f this Court, this passage has not been understood in the sense in
which Mr. Pathak desires us to understand, that a legislation
which leaves the rate of taxation entirely to the executive does not
suffer from the vice of excessive delegation. If Mr. Pathak is right,
in order to impose an incom e tax, it would be sufficient for the
legislature to pass a single section empowering the executive to levy
the tax at such rates as they might consider appropriate on the
different classes o f persons who they consider proper and with
reference to such incom e as might choose to tax. This illustration
o£ what his argument would lead to—was put to Mr. Pathak but his
only answer was that"that was not the case before us.
The second case that Mr. Pathak referred to was [W estern India
Theatres Ltd. v. Municipal Corporation of the City of Poona]....
N o doubt, this decision does support learned counsel to some

extent but a question in the form in wliich it arises now was not
before the Court, The only point was whether there was sufficient
formulation of policy for determining the nature o f the tax which a
municipality might impose. The answer was in the affirmative, based
principally on two grounds; (1) that by sub-s. (2 ) of S. 59 as well as
OFi general principles of law the power of the municipality to levy
taxes was confined to those on which Provincial Legislature could
legislate...Coming to the positive aspect, the learned Judges held that
the other specified items of taxes coupled with the purposes for
which tax was to be levied, indicated the nature of the tax that was
to b e levied. W e are unable to agree that this case decides that the
fixation of a rate of tax is not an essential legislative function but a
mere matter of detail which could be delegated to a subordinate law
making body.
The last of the decisions relied on in this connection was in

Vasanlal v. The State of Bombay, A . I. R. 1961 S. C. 4. It was not a
case regarding the determination o f a rate at which tax could be
levied but of the rent which a tenant might be required to pay under
the Bombay Tenancy and Agricultural Land A ct, 1948-.
The decision proceeded on the basis that the fixation of rent was
an essential legislative function. It was, however, held that the
legislature had enunciated the principle subject to which the delegate
could exercise its subsidiary pow ers... The basic reasoning on which
that decision rests is that for fixation of a reasonable rent under
5 ,1 2 b y the Mamlatdar the necessary factors had all been specified
and on a construction o f the A c t the learned Judges o f the majority

reached a con clusion that the exercise o f p ow er under S, 6 (2) had to
be effected on the same basis and with reference t o th e same factors
which were specified in S. 12 (2) of the A c t .. , It w ould, therefore,
be seen that far from Vasanlal’s case being an authority for the
position that the fixation of a rate o f rent is not an essential
legislative fu n ction but a mere matter o f detail w hich could be left
to making authority, the decision clearly lays d ow n that it is an
essential legislative function and it cou ld not b e delegated w ithout
sufficient guidance.
The final result o f this analysis o f the decisions as laying d ow n

the law so far as the Constitution is concerned, may be thus
summarised : (1 ) Essential legislative functions cannot be delegated
but where the law lays dow n the principles and 'affords guidance to
the subordinate law-m aking authority details may b e left for being
filled up b y the executive or by oth er authorities vested with
quasi-legislative pow er, (2 ) the Pow er to fix a rate of tax is an
essential legislative fu n ction and therefore unless the subordinate
law-making authority is afforded guidance by th e policies being
formulated, principles enunciated and standards laid dow n th e
legislation w ill suffer from the vice o f excessive delegation and
would be void as arbitrary or unconstitutional.
This leads us to the last o f the points urged by M r. Pathak that

the A c t itself affords sufficient guidance and fixes standards by w hich
it could determ ine the rate at which a tax could be levied. It is not,
and cannot be, disputed that the guidance could be afforded not
merely by the provision enabling the tax to b e levied but b y other
provisions o f the A c t including the preamble. But the question is
whether there are any such provisions in the A c t which could
serve to determ ine the standard upon w hich the rate o f tax to b e
levied is to b e determ ined. M r. Pathak first referred us to the
preamble where it is cited that the A c t enacted was one relating
to the municipal affairs o f Calcutta. W e are unable to see b ow this
affords any assistance in this regard. H e next referred us to S. 24
reading, to quote the material words :—
“ Subject to the provisions of this A c t and the rules, bye laws
and regulations made thereunder the municipal government o f
Calcutta shall vest in the C orp oration,”
and to Ss. 42 to 47 which deal with the supervision o f the State

G overnm ent over the affairs and activities o f the Corporation. As
regards S. 24, we are unable to see how this helps learned counsel in
the present argument. N o doubt, the Municipal Governm ent o f
C alcutta is vested in the C orporation but question is what powers
are vested in that Governm ent. If by describing the pow ers of
administration o f the city of Calcutta vested in the Corporation,
as "a governm ent” every pow er necessary to effectuate governmental
functions was involved there would have been no necessity at all
for the other provisions o f the A ct. It is not, therefore, as if the
expression ‘governm ent’ gathers within its fold all powers necessary
for administration or creates an independent sovereign body entitled
to legislate in any manner it likes provided the same is necessary for
the purpose o f carrying on civic Government. It is obvious that that
is n ot the sense in which the word ‘Government’ is employed in S. 24.
The Corporation is still a subordinate body which is the creature o f
the legislature and can only function within the framework o f the
powers conferred upon it by the Municipal A ct, N or are we able to
appreciate how any assistance is derived in this regard from the
powers of supervision which the State Governm ent has over
municipal affairs under Ss. 32 to 47. The supervision is only by the
Executive Government and the question relating to the vice of
excessive delegation is as much appHcable to powers exercisable by
the Executive Government as to the Corporation. If no standards
have been laid down by the A c t for the Corporation to afford it a
guidance for the fixation of a rate the fact that supervisory pow er
is conferred upon the executive would not obviate that objection for
the Government itself would have no guidance from the legislature
as to the policy to be adopted in exercising the supervision....
Principal reliance, however, was placed by learned counsel on

Ss. 115 and 117 of the A ct as affording the requisite guidance.
These read ;—
Section 115 ; “ There shall be one Municipal Fund held by the

Corporation in trust for the purposes o f this A c t to which all
money realised or realisable under this A c t (other than fine
levied by Magistrates) and all moneys otherwise received b y the
Corporation shall be credited,”
Section 117 : “ (1 ) The moneys from time to time credited to

the Municipal Fund shall be applied in payment of all sums,
charges and costs necessary for carrying out the purposes of
this A ctj or of which the payment is duly directed or sanctioned
by or under any o f the provisions o f this A ct.
(2) Such moneys shall likewise be applied in paym ent of all

sums payable ou t o f the M unicipal Fund under any oth er
enactment for the time being in fo rc e .”
R eference was also made in this con n ection to S. 126 under

which annual budget estimates have to be prepared for the C orp oration
in which a statem ent o f the proposals as to taxation which w ould be
necessary or expedient to impose in the said year and the expenditure
to be incurred w ould all have to be set out. It was, th erefore,
submitted (1 ) that there was a m unicipal fund into w hich all
collections w ere deposited, and (2) the amount of the collection was
determined b y the expenditure which it was either obligatory or
permissive fo r the C orp oration to incur. Thus no taxes could be
raised except such as w ere needed for the expenditure fo r w hich
provision had been made in the budget and the rate of tax was,
therefore, determ ined by the needs o f the C orp ora tion ..... W e do
not consider that Ss. 115 and 117 afford any guidance for the fixation
of a rate. If the am ount o f m oney w hich a m unicipality needs for
discharging its functions, affords any guidance it w ould appear to
follow that the needs of a State for the expenditure which it was to
incur for its m anifold activities and again o f the U nion for the
activities w hich it might undertake ought to afford sufficient guidance
to sustain the validity o f a skeleton legislation o f the type we have
indicated earlier. Thus, if learned C ounsel is right in his submission
as regards Ss. 115 and 117 read with S. 126 as affording sufficient
guidance a legislation by a State Legislature or Parliament enacting
that the Governm ent might raise such taxes as it considers necessary
and at such rates as it might consider proper for meeting the
expenditure o f G overnm ent could be constitutional and there w ould
be no need fo r a parliamentary scrutiny and legislation as regards the
rates of the several taxes to be levied within the State or the U nion,
as the case may be. A s M r. Pathak himself realised, this would be
plainly unsupportable. If this w ere so, merely because the area o f
Governm ent was restricted to a m unicipality we do not consider h ow
these provisions afford guidance to the subordinate law-making
authority, viz., the M unicipal C orporation to fix the rate o f the levy.
Pausing here, learned Counsel said that even if a maxima were
prescribed still it left an amount o f discretion to the M unicipal
C orporation or the Executive, as the case may be, and that even such
a “ guided” p ow er could be attacked as ultra vires. This, how ever,
does not follow . T he unconstitutionality arises put o f the discretion
being w holly uncanalised and unguided. T h e argument on the other
24S INDIAN ADMINISTRATIVE L a w [ CHAPTER 4
side is not that no discretion could be left to the legislature to

determine within permissible limits the precise rate that would secure
the purpose which it seeks to achieve but rather that no guidance is
at all afforded and a blanls cheque given to the subordinate authority.
W h ere a maxima is fixed and the limit of discretion is thus controlled
the legislature has exercised its legislative power on that topic, viz.,
the particular tax. In the other case, where it merely authorises the
subordinate law-making authority to levy the tax without indicating
the essential legislative features of such a tax it is not really
legislation on the taxation entry but is merely authorising the
subordinate legislature to enact a law on that t o p i c - I t has,
therefore, to be held that, viewed as a tax, the delegation is
unconstitutional as the essential legislative functions are parted with
to the subordinate law-making body and the provision is, therefore,
unconstitutional. Appeal A llow ed.
PROBLEMS AND NOTES
• 1. In Hamdard Dawakhana v. Union o f I n d i a ,Kapur, J. stated as

fo llo w s :
“ The distinction between conditional legislation and delegated
legislation is this that in the former the delegate’s power is that
of determining when a legislative declared rule of conduct shall
become e & e c t h e Hampton & Co, y , U , S . (1927) 276 U. S. 394, and
the later involves delegation of rule making pow er which
constitutionally may be exercised by the administrative agent.
This means that the legislature having laid down the broad
principles of its policy in the legislation can then leave the
details to be supplied by the administrative authority. In other
words, by delegated legislation the delegate completes the
legislation by supplying details within the limits prescribed by the
statute and in the case of conditional legislation the pow er of
legislation is exercised by the legislature conditionally leaving to
the discretion of an external authority the time and manner of
carrying its legislation into effect as also the determination of
the area to which it is to extend,...*® Thus when the delegate
is given the power of making rules and regulations in order to
fill in the details to carry out and subserve the purposes o f the
47. A. I. R. I960 S. C. 554,566-67. ~ ~ "
was made to Queen v. Biirah, 51 I. A. 178; Russell v. Queen,
(1882) 7 A. C. 829; Emperor v. Benoari L ai 72 I. A. 57; Inckr Singh v. State of
Rajasthan, A.I.R. 1957 S.C. 510 (Ed.).
legislation the manner in which the requirements of the statute

are to b e met and the rights therein created to be enjoyed it is
an exercise o f delegated legislation. But w hen the legislation is
com plete in itself and the legislature has itself made ahd the only
function left to the delegate is to apply the law to an area or to
determine the time and manner o f carrying it into effect, it is
conditional legislation ....”
H ere an attempt has been made to point ou t the dichotom y
betw een conditional legislation and delegated legislation. The
question is whether such dichotom y is involved. Is n ot con dition al
legislation w h ich involves conferm ent of less discretion on the
administration, a species o f the genus delegated legislation? Is it
w orth-w hile any longer to keep the doctrine o f conditional legislation
alive after a broader doctrine of delegated legislation has been
judicially accepted ?
2. The ruling o f M ahajan, C. J. (as he then was), in the Bagla
case has gone too far. H e took a very restrictive view of delegation
in the Delhi Laws Act case. H e had said that he stood by the Federal
C ourt ruling in the Jatindra Nath’s case. H e had further emphasized
that the nature of the legislative duty was such that it should be
discharged b y the very b od y to w hich it was entrusted. Therefore,
he had declared t h e r e : D elegation o f legislative p ow er in matters
essential is unconstitutional. In the Bagla case, however, he denied
that section 6 involved any delegation, and that the implied repeal of
an A ct by an order was n ot because o f the delegate’s declaration but
because the Legislature itself had declared its will.
D o you agree with this view ? Is this not mere formalistic way
o f explaining things ?
3. The Supreme cou rt has maintained that the Bhatnagars case
was not distinguishable from the Bagla case. D o you agree ? Can
you find something in Bhatnagars case w hich w ent beyon d what the
C ourt had held valid in the Bagla case ?
4. In the Garewal case the C ou rt found the p olicy of the A c t in
the rules adopted under it. These rules could b e modified or changed
by the delegate. D id it not mean that even the p olicy could be
altered ? W a s it satisfactory to hold the transient rules made by the
delegate as em bodying the legislative p olicy ?
W a s the decision based on the p o licy ’ approach, or on the fact
that there was the “ laying” provision which gave the Parliament
some con trol over the rules made
49. For this topic see
250 INDIAN ADMINISTRATIVE LAW [ CHAPTER ’4
5. From tbe above cases, the principle would appear to b e w ell

established that the Legislature cannot delegate the essential
legislative function to the E x ecu tiv e; that delegation o f legislative
pow er would be valid only if the legislature lays down the policy and
principles, and affords guidance to the delegate to carry out the said
policy.
In applying this test in actual practice, however, the courts have

taken a liberal view of delegation, and have upheld very broad and
general delegations treating vague statements of “ p olicy ” as adequate
for the purpose. In fact, the courts have endeavoured to find
legislative policy in the impugned legislation so as to sustain, rather
than to veto delegation.
W h ile paying lip service to the principle that the delegation

would be bad in the absence o f “ poHcy” in the A ct, courts have
upheld broad delegations either by reading “ p olicy ” into the
preamble and/or in other provisions; sometimes even by going b eyon d
the A c t and taking into account the legislative history, affidavits filed
by govern m en t; by implying “ poHcy” into the provision questioned,
and even holding that the nature of the subject-matter is such that
“ no more guidance” could be given by the legislature to the delegate.
Usually, the “ p o licy ” is couched in very general or indefinite

terms, as for example, in the Bagla and Garewal cases.
In the Raghubar Dayal^^ case, the formula conferring the pow er

to fix prices did not lay down any standard or test. N evertheless the
Supreme C ourt held it valid by reading the adjective “ reasonable”
into the provision challenged. In the Bagla case, the Supreme C ou rt
ruled that to ascertain the policy of the parent A c t delegating
legislative pow er, a reference may be made to the preamble o f the A ct.
But in the Bhatnagars case the Court went much further as it to o k
into consideration the policy of the repealed A ct. In the Magcrmans^^
case the Court seenis to have justified the entrusting o f the regulation
of the presence o f foreigners in India to the executive discretion. In
the light of this approach can the “ p olicy” principle be said to be o f
any practical value? Is it n ot “ sym bolic” rather than “ real” ? D oes not
the Court go to great lengths to uphold delegating provisions?
D oes such a judicial approach serve any useful purpose ? Can the
judicial control at the first stage, viz., that of delegation, achieve
50. A. I. R. 1962 S. C. 263. ~
53. A. I. R. 1963 Ca). 369,
anything in practice ? D o you feel that judicial con trol at this stage
needs to be strengthened ? W h y ? A n d h ow ?
In this con n ection consider the follow in g observations b y Subha
Rao, J., in his dissent in the Vasanlal Maganbhai v. State o f Bombay,^'"''
“ The Constitution confers a pow er and imposes a duty on the

legislature to make laws. The essential legislative function is the
determ ination of the legislative policy and its form ulation as a rule
o f con duct. O bviously it cannot abdicate its functions in favour o f
another. But in view of the multifarious activities of a w elfare
State, it cannot presumably w ork ou t all the details to suit the
varying aspects o f a com plex situation. It must necessarily
delegate the w orking ou t of details to the executive or any oth er
agency. But there is a danger inherent in such a process o f
delegation. A n overburdened legislature or on e controlled b y a
pow erful executive may unduly overstep the limits o f delegation.
It may n o t lay dow n any policy at all; it may declare its policy in
vague and general terms; it may not set dow n any standard fo r
the guidance o f the executive; it may con fer an arbitrary p ow er
on the executive to change or m odify the policy laid dow n b y
it w ith ou t reserving fo r itself any control over subordinate
legislation. T he self effacem ent o f legislative pow er in favour
of another agency either in w h ole or in part is beyond the
permissible limits of delegation. It is for a cou rt to hold on a fair,
generous and liberal construction of an impugned statute whether
the legislature exceeded such limits. But the said liberal
con struction should not be carried by the courts to the extent o f
always trying to discover a dormant or latent legislative p olicy
to sustain an arbitrary p ow er conferred on executive authorities,
It is the duty of this C ourt to strike dow n w ithout any hesitation
any blanket pow er conferred on the executive by the legislative.”
6. D oes the fact that the delegated legislation framed under an
A c t is to b e laid before the Legislature make any difference in the
judicial attitude while adjudging the constitutionality o f a delegating
provision?
W h a t is rational justification o f taking the above situation into
consideration by the courts?
■ 7. R efer to the Liberty Cinema-'^ case : In the Banarasidas case,
the court considered the question o f modifying a schedule annexed
52. A. I. R. 1962 S. C. 4, 11-12.
53. A. I. R. 1965 S. C. 1107.
to the A c t and it found that the A c t laid dow n the policy subject to
w hich this could be done. The e ffe c t of the particular amendment of
the schedule was to render some persons subject to sales tax which
they w ere n ot under the A ct. In the Liberty Cinema case, the m ajority
accepts that the case o f Banarsi Das did not concern with the rates of
taxation but with the subject-m atter of taxation. D o you agree with
the majority view that there is n o distinction in principle betw een the
tw o situations ?
T h e majority holds in the Liberty Cinema case that for the
purposes o f the A c t there is adequate statement o f policy. The
minority challenges this view. Is n ot the minority view on this point
m ore cogent and justified ?
Is n ot majority judgment concerned more with explaining, as to
why the legislature cannot articulate policy while conferring taxing
powers on a corporation, than with finding whether the A c t contains
a sufficient policy ? Is not this approach nearer to the A m erican view
propounded in Soutenburgh v. HennickJ'^ which the minority rejected so
brusquely ? Is not that a more plausible approach in respect o f an
elected corporation than trying to take recourse to the fiction o f policy
w hen there is really none in the A c t ? Cannot an elected b o d y be
treated difJerently from an executive in the m atter of delegated
legislation ?
One of the arguments accepted in the Western India Theatres^^ case
was that since the taxing power of the municipality was made subject
to the approval o f the Governor-in-Counci], the Legislature had not
abdicated in favour o f the municipality. Examine what the minority -
in the Liberty Cinema case makes of this argument ? Is not the minority
view more convincing ?
(b ) Power to add, amend or modify an Act o f legislature or exempt

therefrom
A t times, a statute delegates on the administration n o t the
normal rule-making pow er but a pow er to add to, amend, m odify or
exempt from the parent A ct. In many instances pow er is given to add
to or modify a schedule annexed to the A ct; in others it may b e a
power to modify a provision of the A ct.
Questions have often arisen whether such a pow er is valid, and if
so, imder what conditions ? Generally the judicial view has been that
such a pow er is valid if the parent A c t lays dow n a policy.
54. (1889) 129 U. S. 142,
55. A. 1. R, 1959 S. C. 586, supra.
The Edward case considers the validity o f the pow er to

add to the schedule, the Banarasi Das case examines the question of
modification o f the schedule. In Hamdard Dawakhana^'^ case pow er
to add to the schedule was held bad as being unguided, Rajmrain’s
case deals with a p ow er to amend any provision o f the parent A c t, In
this connection, Bagla’s case may also be noted where an order made
by the delegate was held valid notwithstanding its inconsistency with
any enactment other than the parent A ct,
EDWARD MILLS CO. v. STATE OF AJMER

A.I.R. 1955 S. C. 25 .
[In 1948, the C entral Legislature o f India passed the Minimum

W ages A c t, 1948, the ob je ct of which, as stated in the preamble, is
to provide fo r fixing minimum rates o f wages in certain e m 'f^ ^ ie n ts .
The schedule attached to the A c t specifies, under tw o parts, the
employments in respect of which the minimum wages o f the em ployees
can be fixed : and section 27 authorises the “ appropriate G overnm ent’',
after giving three months" notice of its intention to do so, to add to
either part o f the schedule, any other em ploym ent in respect of
which it is o f the opinion that minimum rates o f wages should be
fixed under the A ct.
In O ctob er, 1950, the State Governm ent included em ploym ent in
the textile industry as an additional item in Part I of the schedule,
and on O ctob er 7,1952, the G overnm ent issued a notification fixing
minimum wages under the A c t for that employment.
The petitioners challenged the final notification as illegal and
“ ultra vires” ]
Mukherjea, J,:
It is argued that the A c t nowhere form ulates a legislative policy

according to which an employment shall be chosen fo r being included
in the schedule. T h ere are no principles prescribed and no standard
laid ■dow n w hich could furnish an intelligent guidance
administrative authority in making the selection. T he matter is leit
entirley to the discretion o f the “ appropriate G overnm ent” which
can amend the schedule in any way it likes and such delegation of
’ 56. A. I. R. 1955 S. C. 25, w M
57. A. I. R. I960 S, C. 554, infra,
254 INDUN ADMINISTRATIVE LAW [ CHAPTER 4
pow er virtually amounts to a surrender b y the Legislature o f its

essential legislative function and cannot b e held valid. There is
undoubtedly an element o f delegation implied in the provision o f
Section 27 of the A ct, for the Legislature, in a sense, authorises
another body, specified by it, to do something which it might do
itself. But such delegation if it can be so called at all does not, m
the circuaistances of the present case, appear to us to be unwarranted
and unconstitutional...,
M r. Chatterjee contends that the essential legislative function is
to lay dow n a policy and to make it a binding rule o f conduct. This
legislative policy, he says, is not discernible anywhere in the provisions
of this A c t and consequently there is no standard or criterion to
the administrative authority in the exercise of the subsidiary legislative
powers. W e do not think this is the correct view to take. The
legislative policy is apparent on the face of the present enactment.
W h a|;a4t.aims at, is the statutory fixation of minimum wages with a
vie'c«^^^^^îate the chance of exploitation of labour.
The legislature undoubtedly intended to apply this A c t not to all
industries but to those industries only where by reasonôf unorganized
labour or want of proper arrangements for effective regulation of
wages or for other causes the wages o f labourers in a particular
industry were very low. It is with an eye to these facts that the
list of trades has been drawn up in the schedule attached to the A ct
but the list is not an exhaustive one and it is the policy o f the
legislature not to lay down at once and for all time, to which
industries the A ct should be applied. Conditions o f labour vary
under different circumstances and from State to State and the
expediency o f including a particular trade or industry within the
schedule depends upon a variety of facts which are by no means
uniform and which can best be ascertained by the person w ho is
placed in charge of the administration of a particular State-
It is to carry out effectively the purpose of this enactment that
power has been given to the “ appropriate government” to decide,
with reference to local conditions, whether it is desirable that
minimum wages shovild be fi-xed in regard to a particular trade or
industry which is not already included in the list. W e do n ot think
that in enacting Section 27 the legislature has in any way stripped
itself o f its essential powers or assigned to the administrative authority
anything but an accessory or subordinate power which was deemed
necessary to carry out the purpose and the policy o f the A c t .....
M O H D . HUSSAIN v. STATE OF BOM BAY

A. I. R. 1962 S.C. 97.
[The petitioners, businessmen o f Ahem dabad were carrying on

business in the locality known as Kaliipur market. In 1959, as per
notifications issued by the Srate G overnm ent under the Bom bay
Agricultural Produce Markets A ct, 1939, Kalupur market was
declared to b e a sub-market yard for the purposes o f the A ct.
Therefore, after the declaration, the , market com m ittee, established
under Section 5 o f the A c t for the Ahmedabad market area, required
the petitioners to obtain licences in order to carry on business. In
challenging the constitutionality o f the A c t and the rules framed
thereunder, petitioners contended, inter alia^ that the pow er given
to the State G overnm ent under Section 29 o f the A c t to add to,
amend or cancel any o f the items o f agricultural produce specified in
the schedule to the A c t was improper,]
Wanchoo,
The next attack is on S. 29 of the A ct, which provides that the

State G overnm ent may by notification in the official gazette, add to,
amend or cancel any o f the items of agricultural produce specified
in the Schedule. It is submitted that this gives a com pletely
unregulated p ow er to the State G overnm ent to include any crop
within the Schedule w ithout any guidance or con trol whatsoever.
W e are of opinion that this con tention must also fail. It is true that
S, 29 itself does n ot provide for any criterion for determining which
crop shall b e taken out therefrom but the guidance is in our opinion
writ large in the various provisions o f the A c t itself. A s we have
already pointed out, the scheme of the A c t is to leave out. o f account
retail sale altogether; it deals with what may be called wholesale
trade and this in our opinion provides ample guidance to the State-
G overnm ent when it com es to dicide whether a particular agricultural
produce should be added to, or taken out of, the schedule. The State
Governm ent will have to consider in each case whether the volume
o f trade in the prod u ce is o f such a nature as to give rise to wholesale
trade. If it comes to this conclusion it may add that produce to the
Schedule. On the oth er hand, if it com es to the conclusion
production o f a particular produce included in the Schedule has
fallen and can be no longer a subject-m atter o f wholesale trade,
it may take out that produce from the schedule.,.. [T ]he p ow er is
given to the State G overnm ent to add to, or amend or cancel any of
the items o f the agricultural produce specified in the Schedule in
accordance with the local conditions prevailing in different parts of

the State in pursuance o f the legislative policy which is apparent on
the face of the A ct. Therefore, in enacting S. 29, the Legislature
had n ot stripped itself of its essential powers or assigned to the
administrative authority anything but an accessory or subordinate
pow er which was deemed necessary to carry out the purpose and
policy of the A ct. W e therefore reject the contention that S. 29 of
the A c t gives uncontrolled power to the State Government and is
therefore unconstitutional.
HAMDARD DAWAKHANA v. UNION OF INDIA

A.I.R. 1960 S.C. 554
[Section 3 (d) of the Drug and Magic Remedies (O bjectionable

A d ^ '^ ^ ^ tte n ts ) A ct runs as follows ;
“ Subject to the provisions of this A ct, no person shall take any
part in the pubHcation o f any advertisement referring to any
drug in terms which suggest or are calculated to lead to the use
o f that drug fo r ...(d ) the diagnosis, cure, mitigation, treatment
or prevention o f any disease or any other disease or condition which
may be specified in rules made under this A c t ” (emphasis added)
P ow er to make rules was laid down in Section 16 which was
as follows :
Section 16 (1) The Central Government may by notification in
the official gazette make rules for carrying out
the purposes of this A ct.
(2) In particular and without prejudice to the
generality of the foregoing power, such rules
may—
(b) Specify any disease or condition to which the
provisions of S. 3 shall apply;....]
Kapur, J, :
The third point raised by Mr. Munshi was that the words ‘or any
other disease or condition which may be specified in the rules made
under this A c t in clause (d) of S. 3 of the A c t are delegated
legislation and do not lay down any certain criteria or proper
standards, and surrender unguided and uncanalised pow er to the
executive to add to diseases in the schedule..., But th? di^îretipn
should n ot b e so wide that it is impossible to discern its limits. There

must instead be definite boundaries within which the powers of the
administrative authority are exercisable. D elegation should not b e
so indefinite as to amount to an abdication of the legislative
function..,.
The interdiction under the A c t is applicable to conditions and

diseases set out in the various clauses o f S. 3 and to those that may
under the last part of clause (d) be specified in the rules made under
S. 16,... It is the first sub-section o f S. 16 which confers the general rule
making pow er i.e., it delegates to the administrative authority the
power to frame rules and regulations to subserve the objective and
purpose o f the A ct. Clause (a) o f the second sub-section is merely
illustrative o£ the pow er given under the first sub-section (1) i.e. to
carry out the purposes o f the A ct. Consequently, when the rule-
making authority specifies conditions and diseases in the schedule it
exercises the same delegated authority as it does when it fiêicises
power under sub-section (1) and makes other rules and therefore it is
delegated legislation. T h e question for decision then is, is the
delegation constitutional in that the administrative authority has been
supplied with proper guidance. In our view the words impugned are
vague. Parliament has established no criteria, n o standards and has
not prescribed any prixiciple on which a particular disease or condition
is to be specified in the Schedule. It is not stated what facts or
circumstances are to be taken into consideration to include a
particular condition or disease. The pow er of specifying diseases and
conditions as given in S. 3 (d ) must therefore be held to he going
beyond permissible boundaries of vahd delegation. A s a consequence
the Schedule and the rules must be struck dow n.,..
W e are o f the opinion therefore that the words "o r any other
disease or condition which may b e specified in the rules made under
this A c t ” con fer uncanalised and uncontrolled p ow er to the Executive
and are therefore ultra vires. But their being taken ou t o f Cl. (d ) o f
S. 3 does n ot affect the constitutionality of the test of the clause or
section as they are severable....
NOTES
1. Pow er to add to the schedule annexed to the A c t is usually

given nowadays to the administratioji, The Prugs A ct, 1940,
empowers the Central Governm ent to amend the hst o f dangerous

drugs enumerated in the schedule to the A ct. Section 4 o f the
Em ployees’ Provident Fund A c t empowers the Central Government
by notification in the official gazette, to add any industry to Schedule I
in respect of which it is o f opinion that a provident fund scheme
should be framed under the A ct.
The justification for the power is given by A llen as fo llo w s ;

“ There can be no serious objection to a pow er vested in
departmental experts—who, of course, act on technical advice—
to alter from time to time the list of poisons, therapeutic
substances, fertilisers and feeding stuffs, ancient monuments, or
whatever it may be, which fall within the appropriate statutes,
provided that they are ejusdem generis with the other things which
the statute is clearly intended to cover.
But see the Hamdard Dawakhma:''^ case. D o you think that the
ruling in this case is consistent with other cases in this class?
( c) Power to grant exemption
The question o f validity of the power given to the Government

to grant exemption from the operation of an A c t has been considered
by the High Courts in a number of cases :
In Globe Theatres Ltd. v. Slate o f Madras^''^, the Madras H igh Court
held valid section 13 o f the Madras Buildings (Lease and Rent
C ontrol) A ct, 1949, which granted to the State Governm ent power
“to exempt any building or class of buildings from all or any of the
provisions o f this Act."®^
In Sheo Shankar v. M.P. State Government^'^^ the following
exemption provision was considered:
“ The Provincial government may, by notification either w holly or
partially and subject to such conditions as it may think fit to impose,
exempt any person or class of persons from all or any o f the provisions
of this A ct, or of all or any of the rules made under this A ct, either
throughout the province or in any specified area, or for any specified
58. Allen, Law and Orders 195 (2d. ed. 1956),
59. Supra.
60. A. I. R, 1954 Mad. 690.
61. The provision was challenged under article 14 of the Constitution also but
the argument was rejected. The judgment was confirmed by the Supreme Court in
P. J. Irani v. State of Madras, A. I. R. 1961 S. C. 1761.
62. A, I. R, 1951 Na^. 58,
period or occa sion .” T h e High C ourt upheld the pow er delegated

on the basis that it amounted only to con dition al legislation.'^
“ The State G overnm ent may direct that all or any of the
provisions of this A c t shall n ot apply to any particular building or
rented land or any class o f buildings or rented lands.” The provision
was challenged®^ on the ground that the pow er o f exem ption was
uncanalised and no guidance was afforded for its exercise in the A c t.
The Punjab H igh C ourt held the provision valid treating it as a
conditional legislation and not delegated legislation. It observed, “ that
delegation of p ow er to the Governm ent to determine the time as to
when the statute should apply, the person or persons to w hom it is to
apply has never been held to be void because it has always b een
treated as conditional legislation, and not delegated legislation,” In
principle, the cou rt saw no difference betw een the grant o f this type
of power and the p ow er under the impugned section. It was pointed
out further that if the entire scheme o f the A c t is examined, it will be
seen that the, purpose o f exem ption clause is apparent and it furnishes
sufficient guidance for the exercise of the exem ption power.
M OHM EDALLI v. UNION OF INDIA

A.I.R. 1964 S. C 980.
[The case involved both kinds of provisions namely the pow er to

add to the schedule and also to grant exemption. Section 5 of the
Employees’ Provident Fund A ct, 1952^ authorises the Central
Government to frame the Employees’ P rovident Fund Scheme for the
establishment o f provident funds under the A c t for em ployees or any
class o f em ployees and establishments or class o f establishment to
which the scheme may b e applied, b y notification in the Official
Gazette. The contribution o f the em ployer to the fund is to be
6i per cent o f the basic wages and dearness allowance and retaining
allowance if any, and the em ployee's contribution is to be equal to the
em ployer’s contribution, subject to this being raised to the maximum
o f 8 1/3 per cent, if the employee so desires and the scheme so
provides. Dearness allow ance for the purposes o f contribution shall
be deemed to include also the cash value o f any fo o d concession
allowed to the em ployee. Section 7 authorises the Central
63, This decision was followed by the Madhya Pradesh High Court in
L. N. Waklarev, State. AJ.R. 1959 M. P. 208.
64, Sadhu Singh v. Distt, Board, AJ.R, 1962 Puiy, 207,
Governinent to add to, amend or vary any food concession allowed

to th e employee. Section 7 authorises the Central Government to
add to, amend or vary any scheme framed under the A ct.
Section 1 (3 ) of the A c t lays down the following general rule

regarding the applicability o f the A c t :
“ Subject to the provisions contained in section 16, it appUes—
(a) to every establishment which is a factory engaged in any

industry specified in Schedule I and in which tw enty or more
persons are employed, and
(b ) to any other establishment employing twenty or more persons

or class of such establishments which the Central Government
may, by notification in the Official Gazette, specify in this
b eh a lf: Provided that the Central Governm ent may, after
giving not less than two months’ notice of its intention so to
do, by notification in the Official Gazette, apply the provisions
of this A c t to any establishment employing such number of
persons less than twenty as may be specified in the
notification.”
Section 16 provides that the A ct shall n ot apply to any

establishment registered under the Co-operative Societies A ct, 1912,
or to any other establishment employing fifty or more persons or
twenty or more but less than fifty persons until the expiry o f three
years in the case o f the former and five years in the case o f the latter
from the date on v/hich the establishmet is set up.
The term “industry” used in the sub-section, quoted above, is

defined in section 2(1), as follows ;
“ ‘industry’ means any industry specified in Schedule I, and

includes any other industry added to the Schedule by notification
under section 4."
By section 4, the Central Government has been authorised to add
to the Schedule any other industry in respect of the employees
whereof it is of opinion that a provident fund scheme should be
framed under the A ct, and when such a notification is issued, the
industry so added shall be deemed to be an industry specified in the
Schedule. By way of exception to that general rule, the appropriate
■government has been authorised by section 17 to exempt from the
operation o f all or any o f the provisions of any scheme framed under
the A ct, The relevant provisions of section 17 are in these w o r d s ;
“ 17, P ow er to exem pt— (1) The appropriate Governm ent may,

by notification in the Official G azette, and subject to such
conditions as may b e specified in the notification, exempt from
the operation of all or any o f the provisions of any Scheme— (a )
any establishment to which this A c t applies if, in the opinion o f
the appropriate Governm ent, the rules o f its provident fund with
respect to the rates o f contribution are not less favourable than
those specified in S. 6 and the employees are also in enjoym ent of
other provident fund benefits w hich on the w hole are not less
favourable to the employees than the benefits provided under
this A c t or any Scheme in relation to the em ployees in any oth er
establishment of a similar character; or
( c ) any establishment if the employees o f such establishment are

in enjoym ent o f benefits in the nature of provident fund, pension
or gratuity and the appropriate G overnm ent is of opinion that
such benefits, separately ot: jointly are on the w hole not less
favourable to such em ployees than the benefits provided under
this A c t or any scheme in relation to em ployees in any other
establishment of a similar character."
Section l ( 3 ) ( b ) o f the A c t was challenged on the ground that it
confers uncontrolled and uncanalised pow er on the Government.]
Sinha C. J.;
T he Supreme C ou rt rejected the contention. It cannot be
asserted that the pow ers entrusted to the Central Governm ent to
bring within the purview o f the A c t such estabhshments or class o f
establishments as the G overnm ent may b y notification in the Official
Gazette specify is u ncontrolled and uncanalised. The whole A c t is
directed to institute provident funds for the benefit o f employees in
factories and other establishments, as the Pream ble indicates. Th e
institution o f provident fund for employees is too well-established to
admit of any doubt about its utility as a measure of social justice.
The underlying idea behind the provisions o f the A c t is to bring all
kinds o f em ployees within its fold as and when the Central
Governm ent might think fit, after reviewing the circumstances of each
class o f establishments. Schedule I to the A c t contains a list o f large
variety of industries engaged in the manufacture of diverse
commodities, m entioned therein. T o all establishments which are
factories engaged in the industries enumerated in Schedule I, the A c t
has been made applicable o f its own force, subject to the provisions o f
section 16, w hich has indicated the esta^slishments to which the
A c t shall not apply. The Schedule is liable to be added to or

m odified so as to include other categories of industries not
already included in Schedule I. So far as establishments which do
not com e within description o f factories engaged in industries, the
Central Governm ent has been vested with the power o f specifying
such establishments or class o f establishments, as it might determine?
to be brought within the purview of the A ct. The A c t has given
sufficient indication o f the policy underlying its provisions, namely,
that it shall apply to all factories engaged in any kind of industry and
to all other estabHshments employing 20 or more persons. This court
has repeatedly laid it down that where the discretion to apply the
provisions o f a particular statute is left with Government, it will be
presumed that the discretion so vested in such a high authority will
not be abused. The Government is in a position to have all the
relevant and necessary information in relation to each kind of
establishment enabling it to determine which o f such establishment
can bear the additional burden o f making contribution by way of
provident fund for the benefit of its employees- The power to exempt
given to the appropriate Government under section 17 is not
uncanalised because both clauses (a) and (b) of that section postulate
that the exemption would be granted on the ground that the
employees of those establishments are already in the enjoym ent of
benefits in the nature of provident fund, pension or gratuity not less
favourable to them than under the A ct...
It would appear from the terms of the relevant portion o f S. 17

that the exemption to be granted by the appropriate G overnm ent is
not in the nature o f com pletely absolving the establishment from all
liability to provide the facilities contemplated by the A ct. The
exemptions are to be granted by the appropriate G overnm ent only
if in its opinion the exempted establishment has provisions made for
provident fund, in terms at least equal to, if not more favourable to
its employees. In other words, the exemption is with a view to avoiding
duplication and permitting the employees concerned the benefit of
the pre-existing scheme, which presumably has been working satisfac
torily, so that the exemption is not meant to deprive the em ployees
concerned of the benefit of a provident fund bu t to ensure to them
the continuance of the benefit which at least is n ot in terms
less favourable to them. As the whole scheme of provident fund is
intended for the benefit of employees, section 17 only saves pre-existing
schemes o f provident fund pertaining to particular establishments.
H ence, the provisions o f sub-section (3) of section 1, read along with
those of section 17, quoted above, cannot b e said to have conferred

uncontrolled and uncanalised pow er on the appropriate Government.
...It is clear that the last m entioned case (H am dard Dawakhana)
illustrates the rule that the question whether or not a particular
piece o f legislation suffers from the vice o f excessive delegation must
be determined with reference to the facts and circumstances in the
background o f which the provisions o f the statute impugned had been
enacted. If, on a review o f all the facts and circumstances and o f the
relevant provisions of the statute, the C ourt is in a position to say
that the Legislature had clearly indicated the underlying principle of
the legislation and laid down criteria and proper standards bu t had
left the application o f those principles and standards to individual
cases in the hands o f the executive, it cannot be said that there was
excessive delegation o f powers by the Legislature. O n the other hand,
if a review of all those facts and circumstances and the provisions of
the statute, including the Preamble, leaves the C ou rt guessing as to
the principles and standards, then the delegate has been entrusted
not with the mere function o f applying the law to individual cases,
but with a substantial portion of legislative pow er itself. A pplying
those principles w hich are now w ell-established by quite a number
of decisions o f this Court, can it be said in the instant case that the
Legislature had indicated clearly the principles underlying the
legislation and the standards to be applied ? In our opinion, the
answer must b e an emphatic “ N o ” .
(d ) Power to amend the statute
B A N A R SI DAS v, STA TE OF M.P.

A, I. R. 1958 S.C. 909
[Section 6 o f the Central Provinces and Berar Sales Tax

A ct, 1947, ran as follow s :—
6 (1) ‘ ‘N o tax shall be payable under this A c t on the sale of

goods specified in the second colum n o f Schedule II, subject to the
conditions and exceptions, if any, set ou t in the corresponding entry
in the third colum n thereof.
(2 ) T h e State G overnm ent may, after giving by notification not

less than one m onth’s n otice o f their intention so to do, by a
notification after the expiry o f the period o f notice mentioned in the
264 INDIAN ADMINISTRATIVE LAW [CHAPTER 4.
first notification amend either Schedule and thereupon such Schedule

shall be deemed to be amended accordingly.'’
Item 33 in Schedule II ran as : “ Goods sold to or by the State
G overnm ent.” Under section 6(2), the State Govt, issued a notification
on Septem ber 18, 1950 substituting for the above words in item 33
the vyords “ Goods sold by the State Government. The resultant
position was that the appellant who was entitled to exemption under
the A ct, in respect o f goods sold to the Government, could no longer
claim it by reason o f the notification in question. H e therefore
challenged the validity o f the notification on the ground that it was
not open to the Governm ent in exercise of the authority delegated
to it under Section 6(2) of the A c t to modify or alter what the
Legislature had enacted.]
Venkatarama Aiyar,
W e have next to consider the contention that the notification

dated 18-9-1950 is bad as constituting an unconstitutional delegation ,
o f legislative pow er....M r. Chatterjee appearing for the appellant
contends that the notification in question is ultra vires, because it is
a matter of policy whether exemption should be granted under the
A c t or not, and a decision on that question must be taken only by
the Legislature, and cannot be left to the determination o f an outside
authority. W h ile a pow er to execute a law, ic was argued, could be
delegated to the executive, the power to make it must be exercised
by the Legislature itself.... It was also contended that the grant of
a pow er to an outside authority to repeal or modify a provision in
a statute passed by the Legislature was unconstitutional, and that,
in consequence, the impugned notification was bad in that, in reversal
of the p # c y laid down by the Legislature in A c t N o. X V I of 1949
that sales to Government should be excluded from the operation
o f the A ct, it withdrew the exemption which had been granted
thereunder.... [T]he point for determination is whether the impugned
notification relates to what may be said to be an essential feature o f
the law, and whether it involves any change of policy. N o w ,' the
authorities are clear that it is not unconstitutional fo r the legislature
to leave it to the executive to determine details relating to the
working o f taxation laws, such as the selection of persons on whom
the tax is to b e laid, the rates at which it is to be charged in respect
o f diffetent classes of goods, and the like.
/ « jPoive// V. Apyollo Candle Company Limited (1885) 10 A .C . 282
the question arose as to whether S. 133 of the Customs Regulation
A ct of 1879 o f N ew South W ales which conferred a pow er on the

Governor to impose tax on certain articles of import was an
unconstitutional delegation of legislative powers. In holding that
it was not, the Privy C ouncil observed :
“ It is argued that the tax in question has been imposed b y the

G overnor and n ot by the Legislature who alone had pow er to impose
it. But the duties levied under the O rder-in -C ou n cil are really
levied by the authority of the A c t under which the order is issued.
The Legislature has n ot parted with its perfect con trol over the
Governor, and has the power, o f course, at any moment, o f
withdrawing or altering the power, which they have e n tp ste d to
him. In these circumstances, their Lordships are of opinion that
the judgem ent o f the Supreme C ourt was wrong in declaring “S. 133
of the Custom s R egulation A c t of 1879 to be beyond the pow er o f
the Legislature.”
In Syed Mohamed and Co. v. The State o f Madras, A .I.R . 1953

Mad. 105, the question was as to the vires of Rr. 4 and 16 framed
under the Madras G eneral Sales T ax A ct. Section 5 (vi) o f that
A c t had left it to the rule-making authority to d ete® | ^ e at which
single point in the series of sales by successive dealers the tax should
be levied, and pursuant thereto, Rules 4 and 16 had ^ ^ y id e d that
it was the purchaser who was liable to pay the tax in respect o f sales
of hides and skins. T h e validity o f the Rules was attacked on the
ground that it was only the Legislature that was com petent to
decide who shall be taxed and that the determ ination o f that question
by the rule-making authorities was ultra vires. T he Madras High
Court rejected this contention, and held on a review of the authorities
that the delegation o f authority under S. 5 (v i) was within p ^ a is s ib le
Constitutional limits.
In Hampton Jr, & Co. v- United States [279 U.S. 394 (1928) the
question arose whether S. 315(b) of the TarijSf A ct, 1922 uril.er which
the President had been em powered to make such increases and
decreases in the rates o f duty as were found necessary for carrying
out the policies declared in the statute was an uncoi^titutional
delegation and the d e cis io n , was that such delegation was n ot
unconstitutional. W e are therefore o f the opinion that the pow er
conferred on the State Government by S. 6(2) to amend the Schedule
relating to exem ption is in consonance with the accepted legislative
practice relating to the topic, and is n ot unconstitutional.
The contention o f the appellant that the notification in question

is ultra vires must, in our opinion, fail on another ground. The basic
assumption on which the argument o f the appellant proceeds is that
the p ow er to amend the schedule conferred on the Government under
S.6(2) is wholly independent o f the grant o f exemption under S. 6(1)
o f th e A ct, and that, in consequence, while an exemption under S. 6(1)
would stand, an amendment thereof by a notification under S. 6(2)
might be bad. But that, in our opinion, is not the correct
interpretation of the section. The tw o sub-sections together form
integral parts of a single enactment, the object o f which is to grant
exemption from taxation in respect o f such goods and to such extent
as may from time to time be determined by the State Government.
Sectian^’6 (1), therefore, cannot have an operation independent o f S. 6
(2), and an exemption granted thereunder is conditional and subject
to any modification that might be issued under S. 6(2), In this view,
the impugned notification is wtra vires and not open to challenge.
R A fflA B A IN SINGH v. CHAIRMAN, P. A. COMMITTEE

A. I. R. 1954 S. C. 569
[The, appellant was the Secretary of the Rate Payers’ A ssociation

at Patna." H e and the other members of his A ssociation resided in
the Patna village which was originally outside the municipal limits of
Patna and so was exempt from municipal taxation. The A c t creating
municipal institutions in the State is the Patna Administration A c t of
1915 Bihar and Orissa Municipal A c t of 1915.
notification A pril 18, 1951, the Patna village was brought

withitt'^lnunicipal limits, and was subjected to municipal taxation.
Section 3 ( l ) ( f ) of the Patna Administration A ct, under w hich the
notification was issued, empowered the State Governm ent to “ extend
to Patna:^he provisions of any section” of the Bengal M unicipal A ct,
1834, “ subject to such restrictions and modifications as the G overnm ent
may think fit” . On A pril 23, 1951, the Government issued a
N otification picking out section 104 o f the Bihar and Orissa
M unicipal A ct, 1922, which repealed the Bengal Municipal A c t of
1884, and extending it in a modified form to the Patna village, so as
to vary a tax on holdings, latrines or water without observing the
formahties imposed b y sections 4, 5 and 6 of the Bihar and Orissa
Municipal A ct.
The question arose whether the Notification dated April 23, 1951
was beyond section (3 ) (l) (f ) and whether section 3 (l)( f ) was itself
ultra vires. J
Bose^ J.:
In our opinion, the majority view [In /‘e DeJhiLaws Act'] was that an
executive authority can be authorised to modify either existing or
future laws but not in any essential feature. Exactly what constitutes
an essential feature cannot be enunciated in the general terms, and
there was some divergence of view about this in the former case, but
this much is clear from the opinion set out above, it cannot include a
change o f policy.,..
The A c t o f 1922 applied to th e whole of Bihar.., and o'ne of its
essential features is that no municipality competent to tax stiall be
thrust upon a locality without giving its inhabitants a chance o f being
heard and of being given an opportunity to object. Sections 4, 5 and
6 afford a statutory guarantee to that effect. Therefore, the L ocal
Government is under a statutory duty imposed b y the A c t in
mandatory terms to listen to the objections and take them into
consideration before reaching a decision.
In ou r opinion, this is a matter o f policy imposed' by the
legislature and embodied in Section 4, 5 and 6 of the A ct. W e are
not able to brush this aside as negligible and it 'S^flhot, in our
opinion, b e left to an executive authority to tear up this guarantee
in disregard o f the legislature’ s solemnly expressed mandate. T o do
so would be to change the policy o f the law and that the majority in
‘The Delhi Laws Act' case say cannot be done by a delegated
authority..,.
N ow what exactly does Section 3 (l )( f ) authorise does
two things : first, it empowers the delegated authority to pick any
section it chooses out of the Bihar and Orissa Municipal A ct of 1922
and extend it to ‘‘ Patna” ; and second, it em pow ers.. (th^G B vernor)
to apply it with such “ restrictions and modifications” as hîhinks fit.
In {The Delhi Laws Act Casej, the follow ing provision was held
to be good by a majority of four to three ;
“ The Provincial Government may... extend with such restrictions
and modifications as it thinks fit... any enactment which is in force
in any part of British India at the date o f such notification.!';;;
N ow the only difference between that case and this i^ that
whereas in the former case the whole o f any enactment, or a part o f
it, could be extended, here, any section can be picked out. But to
pick ou t a section is to apply a part of an A ct, and to pick out a part
is to effect a modification, and as the previous decision holds that a
part o f an A c t can b e extended, it follows that a section or sections
can be picked out and applied, as in —'Burah's case’ where just that was
done; also, for the same reason that the whole or a part of an A ct
can be modified, it follow s that a section can also be modified.
But even as the modification of the whole cannot be permitted
to effect any essential change in the A ct or an alteration in its policy,
so also a m odification o f a part cannot be permitted to do that either.
If that were not so, the law, as laid down in the previous decision,
could be'ilvaded by picking out parts of an A c t only, with or w ithout
modification in such a way as to effect an essential change in the A ct
as a whole. It'follow s that when a section of an A c t is selected for
application, whether it is modified or not, it must be done so as not
to effect any change o f policy, or any essential change in the A c t
regarded as a whole. Subject to that limitation we hold that
section 3 ( l ) ( f ) is “ intra vires’ ' that is to say, we hold that any
section or sections of the Bihar Orissa Municipal A ct o f 1922 can be
picked' îiife^|)lied to “ Patna” provided that does n ot effect any
essential ctiange in'the A ct or alter its policy.
The Notification o f 23.4.1951 does, in our opinion, effect a radical

change in the policy o f the A ct. Thererefore, it travels b eyon d the
authority which, in cur judgment, section 3 (l)(f) confers and
consequently it is ‘ultra vires’.
NOTES
l.^^êction 7 of the Bombay Tenancy and Agricultural Lands A ct,

1948, runs as follows: “Notwithstanding anything contained in Ss. 5
and 6, it sllall be lawful for the State Government, if it is satisfied that
it is expedient so to do in the public interest to vary, by notification
in the Official Gazette, the acreage o f the ceiling area o f econom ic
holding, or the basis of determination of such ceiHng area or econom ic
holding, under sub-s. (2) of S. 5, regard being had t o —
(a) the situation o f the land,
(b ) its productive capacity,
( c ) the fact that the land is located in a backward area, and
(d ) any other factors which may be prescribed.”
This provision was challenged on the ground o f excessive

delegation o f legislative power. It was argued that it fixed no criteria
for the guidance of the State Governm ent whose pow er to vary the
ceiling area and econ om ic holding was unguided and unfettered which
could possibly be exercised at its sweet will and discretion even in
favour o f a single individual. It was urged that no broad principle or
policy was enunciated by the Legislature and it w ould be open to the
State G overnm ent to exercise this pow er arbitrarily and even in a
discriminatory manner. Rejecting the argument, Bhagwati, J. s ta te d :
“ If the Legislature settles the p olicy and the broad principle of
legislation, there is no bar against leaving the matters of detail to be
fixed by the execu tive and such delegation w ill not amount to
excessive delegation o f legislative pow er such as to vitiate the
enactment. In the case b efore us the pream ble to the A c t says what
the policy o f the impugned A c t is, v/2., further to amend the 1948 A c t
which sets out specific objectives to be achieved. Sections 5 and 6
prescribe the area and the econom ic holding which are fixed by the
Legislature itself having regard to the normal conditions then
prevailing within the State, The legislature knew what w ere the
different types o f land, their situation and productive capacity and
having regard to all the relevant factors determined the ceiling area
as also the econom ic holding. There were, how ever, ,ôund to be
differences b etw een district and district and one part o f the State and
another and having, therefore, enunciated the broad principles
and p olicy w hich w ere embodied in Ss. 5 and 6 o f the A ct
the Legislature enacted S 7, empowering the State Government to
vary the ceiling area and the econ om ic holding if it was satisfied that
it was expedient so to do in the p u b lic interest.... In our opinion,
the broad principles and p olicy have been laid dow n by the legislature,
the criteria have been fixed according to which the State G o'^ rn m en t
has to b e satisfied that it is expedient to, vary the ceiling area and
econom ic holding already prescribed b y the legislature and the mere
matter o f working out the details having regard to those criteria
which are specifically m entioned therein which has been delegated to
the State G overnm ent does not amount to any excessive delegation of
legislative p ow er.” Shri Ram Narain v. State o f Bombay^ A .LR . 1959
S .a 4 5 9
2. Section 4(1) o f the Orissa M unicipal A c t, 1950, em powered
the State Governm ent to constitute an area into a Municipality.
Before doing so, the Governm ent was required to issue a preliminary
ngtificatioa calling for objection s fropa th? inhabitants and
consideration o£ objections, if any. Chapter X X X -A consisting of

sections 417-A, 417-B and 417-C provided for constitution of notified
area committees and conferred powers on the State Government to
apply or adapt to a notified area any of the provisions o f the Orissa
M unicipal A ct. Purporting to act in exercise of the powers conferred
by section 417-B, the Government of Orissa by the impugned
notification applied some of the sections of the Orissa Municipal A ct
to the'Beyarani N otified Area setting up a nominated com mittee to
administer the area and com pletely omitting sections 4 and 5 of the
Orissa Municipal A ct.
The complete omission of section 4 in the impugned notification
deprived the residents of the locality of the opportunity of being
heard before being brought under municipal taxation, and so the
notification was challenged as amounting to excessive delegation. It
was argued that the right of the inhabitants of a specified area to be
heard before they are subjected to taxation is a very valuable right
safeguarded by section 4 of the Orissa Municipal A ct, and the power
conferred on the State Government by section 417-B of that A c t to
apply or adapt to a notified area some of the sections o f the A ct
should be so construed as not to include the power to omit section 4
altogether. Reliance was placed on Rajmrain Singh v. Chairman, Patna
Administration Committee, A.I.R. 1954 S.C. 569.
The High Court in Dandapani v. State o f Orissa^'^ negatived the
contention, saying : “ Though there are many similarities between
the aforesaid Supreme Court case and the instant case, there is one
important distinguishing feature. S. 417-B of the Orissa Municipal
A ct does not confer power on the State Government to extend to a
notified area any of the provisions of the Orissa Municipal A c t
“ subject to such restrictions and modifications as the Government may
think fit” ; as was conferred by S .3 (l)(f) of the Patna Administration
A ct, 1915. In fact, here the State Government have no right to modify
or restrict any section o f the Orissa Municipal A c t while extending it
to a notified area. The only power conferred on them is the pow er
of adaptation which is limited to the making of formal and verbal
changes in the A ct so as to make it applicable to the new administra
tive set-up in that area. Under the guise of adaptation no authority
can make any essential change in the A ct, nor alteration in the
policy,...
A ll that the Orissa Legislature did by section 4L7-B of the Orissa
Municipal A c t was to authorise the State Government to pick and
65. A. I. R. 1962 Orissa 17.
clioose some o f the sections of the A c t w hich they considered to be

suitable for application in a small notified area which is otherw ise
not fit to be constituted into a M unicipality....
Section 417-B o f the Orissa M unicipal A c t cannot be held to be
ultra vires in any view o f the case because it gives lesser powers to
the G overnm ent than S. 3 ( l ) ( f ) of the Patna Adm inistration A c t
which was held to be intra vires b y their Lordships o f the Supreme
Court. T h e impugned notification is undoubtedly within the scope o f
S, 417-B and even if it does not provide for giving the inhabitants ol
a notified area the right to b e heard b efore they are brought under
the central or M unicipal administration, that must be held to be the
result o f th e declaration o f policy by the Legislature itself. It is
always open to the Legislature whose powers are undoubtedly plenary,
to say that in a particular area all the provisions o f the Orissa
Municipal A c t need n ot be applied and that a simplified form o f
municipal administration is desirable in the interest of efficiency.
Having thus declared their policy, the Legislature may leave it to
the State G overnm ent to pick and ch oose these provisions o f the A c t
which should be applied to the area, bearing in mind the p olicy
mentioned above. This is exactly what the State Governm ent have
done in the impugned notification.”
The H igh C ourt in the above case, on the one hand, has held
that what is involved here is the pow er o f adaptation w hich is much
narrower than the p ow er to m odify w hich was involved in the
Rajnarain case, but, on the other hand, has held the notification
valid even though the residents were not given a right of hearing. If
under the p ow er to m odify, the G overnm ent was not allowed to
change the p olicy o f the A c t (viz, the right o f the inhabitants to be
heard,) in the Rajnarain case how is it that under narrower pow er o f
adaptation the governm ent cou ld do so ?
(e) Removal o f Difficulties.

A t times, the legislature confers p ow er on the delegate to amend
the parent .A c t or any other A c t w ith a view to bring the parent
A c t into full operation. Its widest extension is to empower to
delegate, ‘if any difficulty arises in bringing the A c t into operation to
rem ove the difficulty by order.’ Section 6 o f the Jammu and Kashmir
(Extension o f L aw s) A c t, 1956, reads as :
"If any difficulty arises in giving effect to the provisions o f any
A c t or ordinance n ow extended to the State o f Jammu and
66. Rajnarain's case, supra.
Kashmir, the Central Government may, by order notified in the

official gazette, make such provisions or give such directions as
appear to it necessary for the removal o f the difficulty,’'
In this provision, the Executive could even amend the parent

A ct, if necessary. A somewhat modest variant is the provision where
pow er is given to the Executive to amend any A ct, other than the
parent A ct. T o take one example, section 23 of the Personal Injuries
(Compensation Insurance) A ct, 1963, says ;
“ If any difficulty arises in giving effect to the provisions of this

A ct, and in particular, if any doubt arises as to whether any
compensation is payable under this A ct or as to the amount thereof,
the Central Government may, be order, make such provision or give
such direction, not inconsistent with the provisions o f this A ct, as
appear to it to be necessary or expedient for the removal of the doubt
or difficulty; and the decision of the Central Government, in such
cases shall be final.” ®’
This kind of delegating clause has acquired the nick-name o f
H enry V III clause, as personifying “ executive autocracy” . The
Committee on Ministers’ Powers commenting on this clause has said
that the sole purpose of Parliament in enacting such a provision is
“ to enable minor adjustments of its own handiwork to be made for
the purpose of fitting its principles into the fabric of existing
legislation, general or local” .*’® However, the committee has criticised
the use of this device because it is inconsistent with principles of
parHamentary government that the subordinate law-making authority
should be given power to amend the statutes passed by the superior
authority and that such a power in theory at any rate may be
unscrupulously used. Further, it has stated that such a clause “ is a
standing temptation to ministers and their subordinates either to be
slipshod in the preparatory work before the Bill is introduced in
Parliament or to attempt to seize for their own Departments the
authority which properly belongs to ParHament’ '.®^ The Committee
therefore suggested that the Henry V III clause should be avoided
"unless demonstrably essential’' for the limited purpose o f bringing an
A ct into operation and it should accordingly be in most precise
language restricted to those purely machinery arrangements vitally
67. See also The Emergency Risks (Goods Insurance) Act, 1962, § 17; The
Customs Act, 1962; The Government of Union Territories Act, 1963, § 56.
68. Committee on Ministers' Powers Report, 1932, at 36,
m. W .at6l,
requisite for that p u r p o s e ; and the clause should always contain a

maximum time limit of one year after which the powers should
lapse.
A ccord in g to Griffith and Street,'^ the practice of “ statutes giving

the pow er to make regulations which may amend enactments is
com mon and, indeed, inevitable.”
Students may analyse the Indian statute b ook for a year to
identify the “ H enry V III clause” in the statutes and also analyse
what use has been made of this provision. A re the modifications
effected generally o f a mere technical nature or o f substance ? The
overall question w ould still be that the modifications effected in the
statutes as a result o f this provision cannot change the p olicy
underlying the legislation.
R eferen ce may also b e made here to the Bagla case in which the
Supreme C ou rt held valid a statutory provision making executive-
promulgated orders effective even if inconsistent with any legislature
enactm ent. N ote section 43 o f the D efen ce o f India A ct, 1962 which
reads a s :
“ The provision of this A c t or any rule made thereunder or any
order made under any such rule shall have effect notwithstanding
anything inconsistent therew ith contained in any enactm ent other
than this A c t or in any instrument having effect by virtue of any
enactment other than this A c t .”
SECTION 5. ADMINISTRATIVE QUASI-LEGISLATION
WADE AND PHILIPS, CONSTITUTIONAL LAW

585 (1960)
A developm ent is the grow th o f what has been described as

“ administrative quasi-legislation.’”^® G overnm ent departments have
adopted the practice o f issuing pronouncem ents stating the ofifieial
point of view on doubtful points in statutes, or, annGunciiiig
70. Ibid.
71. Principles o f Administrative Law Qd td. \96T),
72. See also Megarry, “ Administrative Quasi-Legislation” 60 i . Q. i?ev. 1125-29
concessions that will be made in the application o f statutes to

individual cases. In 1944 the Chancellor of the Exchequer presented
to Parliament a tw enty-page list o f extra-statutory war-time
concessions given in the administration of inland revenue duties. The
Finance A cts remain on the statute book, but certain provisions cease
to represent the law as appUed in practice. Sometimes arrangements
made administratively affect the rights of one subject against another.
Thus under section 29 o f the now repealed W ork m en ’ s Compensation
A ct, 1925, it was a defence to a claim by a workman for damages at
com m on law that he had accepted compensation under the A ct. In
1942, the H om e Secretary announced in the H ouse o f Commons that
em ployers’ organisations and insurance interests generally had agreed
n ot to raise this defence, provided that proceedings w ere started
within three months o f the accident. As a result the necessity for
remedial legislation was avoided. Thus without any change being
made in the law a substantial change was made in the advice which
solicitor should give his client. It is at least essential that there
should be some systematic publication of administrative notifications.
STATE O F A SSAM v. AJIT KU M AR SH AR M A

A.I.R. 1965 S.C. 1196
[The material facts of the case appear in the judgment.]
W anchoo, J :
This is an appeal by special leave against the judgment o f the

Assam H igh Court. Shri A jit Kumar Sharma (hereinafter referred to
as the respondent) is a teacher in the Handique Girls College
(hereinafter referred to as the C ollege) at Gauhati. H e filed a writ
petition in the High Court on the following averments. This is a
private college teaching up to B .A . standard and affiliated to the
Gauhati University established under the Gauhati U niversity A ct,
N o. 16 o f 1947 (hereinafter referred to as the A ct). The C ollege is
managed by a Governing Body according to the provisions of the
Statute for the management of private colleges framed by the Gauhati
University under S. 21(g) of the A ct. Under 8.23(h) o f the A ct, the
Executive Council may frame Ordinance to provide for the
emoluments and conditions o f service o f teachers o f the University,
including teachers in private colleges. The U niversity has in
purstiauce of the powers so conferred on it framed rules for the grant
of leave to teachers o f private colleges which are binding on the

Governing Bodies o f such colleges, and had actually been adopted by
the Governing B ody o f the College in July, 1956 for its teachers.
Under these rules the Governing Body of the College cannot com pel
a teacher to take leave without pay.
The C ollege receives grant-in-aid from the State o f Assam and
there are certain conditions for giving grant-in-aid. These conditions
do not provide for withdrawal o f the grant-in-aid if a private college
fails to put a teacher w ho seeks election to a legislative or local b od y
on com pulsory leave without pay from the date of the filing o f
nomination till the end o f the next academic session or till expiry o f
the term o f the office to which the teacher is elected.
The respondent as already stated is a teacher in the College. H e
applied for leave with pay from January 2, 1962 to M arch 5, 1962 in
order to con test a seat for Parliament. This leave was granted to
him by the Governing Body o f the C ollege by resolution N o. 1 o f
M arch 9,1962. The respondent stood for election and was defeated.
H e thereupon applied that he be permitted to rejoin his duties from
M arch 6, 1962 and the Governing B ody permitted him to do so b y its
resolution N o. 2 dated M arch 9,1962. H e therefore w orked as such from
M arch 7, 1962. O n M arch 20, 1962, the D irector o f Public Instruction,
Assam (hereinafter referred to as the D irector) w rote a letter to the
Principal and Secretary of the C ollege with reference to the letter
of M arch 10,1962 from the College in w h ich apparently the D irector
has been inform ed o f the leave granted to the respondent and certain
other teachers in con nection with elections to Parliament and Assam
Legislative Assem bly. In this letter, the D irector inform ed the
College that he was unable to approve the resolution o f the
Governing B ody perm itting the respondent and certain other
teachers to join their duties “im m ediately” . The letter pointed out
that such permission was in contravention o f r. 7 o f the Rules
regarding the C onduct and Discipline of the Em ployees of A id ed
Educational Institutions (hereinafter referred to as the R ules) and
could not th erefore b e approved. Th e D irector also added that
the Rules had been framed in 1960 after due consultation with the
University and the Assam C ollege Teachers’ A ssociation. O n receipt
o f this letter, the Governing Body seems to have reconsidered the
matter of leave to the respondent, and passed a resolution on
A pril 4,1962. This letter along with another letter was considered
by the G overning B ody of the C ollege, and it was resolved in view
o f these letters that the resolution o f M arch 9,1962, permitting the
276 INDIAN ADMINlSTRAflVE LAW [ CHAPTER 4
respondent to rejoin duties from M arch 6,1962 could n ot be given

effect to. It was further resolved that the respondent and some
other teachers be granted leave in accordance with the rules. This
resolution of the Governing B ody was conveyed to the respondent
by the Principal o f the College by letter dated A pril 5, 1962 and he
■was told that he had been granted compulsory leave without pay
till the end o f the academic session in view o f his standing for
election in the last general elections.
The respondent thereupon filed the writ petition in the High
Court out o f which the present appeal has arisen. His contention
was that the Rules to which the Director has made reference had no
statutory force and that he was entitled to leave under the Rules
framed by the Gauhati University, which had been accepted by the
College. H e also contended that the Rules not having the force of
law did not affect the powers of the Governing B ody o f the
C ollege in the matter o f its functions. Consequently the second
resolution of the Governing Body dated M arch 9, 1962 was proper
and correct and the respondent was properly allowed to rejoin duty
after the expiry o f his leave on M arch 6, 1962. T he D irector had no
authority to interfere with the second resolution o f the Governing
B ody dated M arch 9, 1962 and that resolution o f this character
passed by a Governing Body did not require the approval o f the
D irector and would have effect by themselves. It was further
contended that as the leave rules which govern the C ollege did not
give power to the Governing Body to put a teacher on compulsory
leave without pay against his will and consent, the resolution o f the
Governing Body dated April 4, 1962 by which the respondent was
put on leave without pay was o f no effect and in any case the
Governing Body should not have acted on the illegal direction of
the Director. Finally it was urged that the Governing Body acted
as it did on a threat contained in the letter from the Additional
D irector dated M arch 19,1962, in which it was said that the education
department would not provide funds for salaries and allowances for
any employee who had gone on leave in connection with elections in
contravention o f R. 7 of the Rules, and therefore the action o f the
Governing Body was bad and in any case the D irector had n o right
to threaten the Governing Body in this way. The respondent
therefore prayed for a writ in the nature o f certiorari/prohibition/
mandamus declaring r. 7 o f the Rules as having no legal force and
also as having no binding character on the Governing B ody or the
respondent, He further prayed that the resolution of the Governing
SECTION 5 J DELEGATEl) LEGISLATION 111
B ody dated A pril 4, 1962 be declared ultra vires, void and ineffective
in law, and the D irector should be directed not to withhold the
grant-in-aid to be given to the C ollege on the failure o f the Governing
Body to put the respondent on com pulsory leave without pay.
Before we consider the reply of the State, we would like to give

the genesis o f the Rules. It appears that in February 1959 the State
of Assam decided to grant additional grant-in-aid to private colleges
to implement the recommendations of the University Grants
Commission regarding scales o f pay and other emoluments to the
teachers o f such colleges. A pparently these scales o f pay and other
emoluments were advantageous to the teachers and meant an
improvement on their pay and other emoluments which they w ere
getting from before. It was futher decided that such grant-in-aid
should be given to private colleges on condition that the college
authorities agreed to abide by certain rules regulating the conditions
of service o f their employees. A ccordin gly it was decided to frame
rules in consultation with the University and Assam C ollege Teachers’
Association. Further the views of the Governing Bodies of all private
colleges w ere also invited on the draft rules. A m ong them, the
Governing B ody of the C ollege was also consulted and it resolved
on August 6,1960 that it agreed with the proposed rules contem plated
by the G overnm ent to be framed as com m unicated to it. The
Governm ent also ascertained the view s o f the Gauhati U niversity
and the Assam C ollege Teachers’ A ssociation and eventually the
Rules were notified by notification dated M arch 9, 1961, published on
March 29, 1961. Rule o f the Rules, w hich is material for our purposes
is in these terms:—
‘'A n em ployee desiring to seek' election to the Legislative Body

or to hold office w ith any political organisation or local bodies
shall b e on com pulsory leave w ith ou t' pay from the date o£ the
filing o f his nom ination till the end o f the next academic session
or till the term ination of the term ' o f office to which he may be
elected as the case may be. Such em ployee how ever shall n ot be
allow ed to retain lien on his post for' a period exceeding five
years.”
The Rules therefore were fram ed in consultation with, tlie

University and the Assam C ollege 'T each ers’ Association, w hich
presumably represents the teachers o f all' private colleges. The
Governing B ody of the C ollege was also consulted anci it accepted the
rules to b e prom uglated. In this G overning Body the members o f the
teaching staff o f the C ollege are w ell represented and it was after the
con cu rrence of the University, the C ollege T each ers’ A ssociation and
the Governing B ody o f the C ollege in particular in w h ich the teachers
o f the C ollege w ere w ell represented that the Rules were notified.
The case o f the appellants was that considering the manner in

w hich the Rules w ere framed they w ere binding on the C ollege as
w ell as on the teachers of the C ollege and it was thereafter that the
G overnm ent gave the revised grants to the C ollege. It seems further
that the case o f the appellants was that the Rules had statutory
fo rce in view o f the amendment o f the A c t b y Assam A c t II of 1961
by which a proviso was added to S. 21(g) o f the A c t w hereby the
Governm ent was given p ow er to make the necessary rules
in consultation with the U niversity in respect o f governm ent colleges
and government aided colleges. There were certain other objections
b y the appellants, to which it is unnecessary to refer.
The Governing B ody of the College was also made a party to the
w rit petition and it submitted a written statement. It supported the
stand taken by the State, and in particular pointed out that the
Governing Body in which the teaching staff of the C ollege was well
represented had accepted the Rules before they were notified. In
consequence the G overnm ent had been giving grant-in-aid to the
C ollege in accordance with the recommendations o f the U niversity
Grants Commission b y which the pay scales etc. o f the teachers had
im proved and the teachers had been receiving the pay and dearness
allow ance under this grant-in-aid. N o representation was ever made
b y any member o f the teaching staff when the Rules w ere under
consideration and were notified that he would not be bound by the
Rules. Th e teachers including the respondent having accepted the
pay and dearness allowance under the scheme o f grant-in-aid given
b y the State on terms and conditions laid dow n in the Rules, the
respondent was stopped from challenging the Rules which w ere in
th e interest o f the C ollege and education in general. T he Governing
B ody in particular was bound by the Rules having accepted them and
the resolution o f A pril 4, 1962 was not passed on accou n t o f any
threat by the Director.
The main question that was argued before H igh C ou rt was

whether the Rules in question had statutory force. A lternatively, it
was argued that even if the Rules had no statutory fo rce and w ere mere
executive instructions for the purpose of grant-in-aid, the H igh Court
should not issue a w rit against the State or the D irector interfering
SECTION 5 ] d elegated LEGISLATION 279
with such administrative instruction issued by the Director. It was

further urged that if the Rules were mere executive instruction,
which had been accepted by the Governing Body o f the C ollege in
which the teachers o f the College were well represented, they would
be in nature o f contractual obligations which could not be enforced
by the issue o f a writ under A rt. 226.
The H igh C ou rt first considered the question whether the Rules
had statutory force and came to the conclusion that they w ould not
be said to be issued under the proviso to S. 21(g) o f the A c t on which
reliance was placed and therefore did not have any statutory force.
But the H igh C ourt further held that even if th e Rules had no
statutory force it was open to it to issue a mandamus under A rt. 226
to the D irector, w ho is a public authority, to refrain from giving
effect to th e Rules which had no statutory force. It therefore made
a direction to the D irector not to give effect to his letter of M arch
20,1962.
The main question which falls for decision in this appeal is
whether the H igh C ourt is right in issuing a writ o f mandamus to
the State through the D irector directing it n ot to give effect to the
letter of M arch 20, 1962. It has not been contended on behalf o f
the appellants that the Rules have no statutory force and are mere
executive instructions given by the Governm ent to private college....
It seems to us that the H igh C ourt was in error in granting a writ o f
mandamus against the State through the D irector once it found that
the Rules had no statutory force and were mere administrative
instructions for the purpose o f giving grant-in-aid to private colleges.
W h at grants the State should make to private educational institutions
and upon what term s are matters fo r the State to decide. Conditions
of these grants may b e prescribed by statutory rules; there is how ever
no law to prevent the State from prescribing the conditions o f such
grants b y mere executive instructions which have not the force of
statutory rules. In the present case the Rules have been framed in
order to give revised grants to private colleges to enable them to
give higher scales o f pay etc. to their teachers in accordance with
the recom m endations o f the University Grants Commission. The
Rules have been held by the High C ourt to have no statutory force,
and that is not disputed before us. In these circumstances it is clear
that the Rules are mere executive instructions containing conditions
on which grants w ould be made to private colleges to implement
the recommendations o f the U niversity Grants Gpnjmission as to pay
scales etc. o f teachers o f private colleges. W h ere such conditions of
grant~in-aid are laid down by mere executive instructions, it is open

to a private college to accept those instructions or n ot to accept
them. If it decides not to accept the instructions it will naturally
n ot get the grant-in-aid which is contingent on its accepting the
conditions contained in the instructions. On the other hand, if the
college accepts the conditions contained in the instructions, it
receives the grant-in-aid. If how ever having a ccepted the instructions
containing the conditions and terms, the college does not carry out
the instructions, the Governm ent will naturally have the right to
withhold the grant-in-aid. That is how ever a matter betw een the
G overnm ent and the private college concerned. Such conditions and
instructions as to grant-in-aid con fer no right on the teachers o f the
private colleges and they cannot ask that either a particular
instruction or conditions should b e enforced or should not be enforced.
It is only for the Governing B ody of the College to decide whether
to carry ou t any directions laying down conditions for grant-in-aid.
Further it is open to the Governing Body not to carry out any such
instructions which is not based on rules having statutory force, and
it w ill then be naturally open to the State to consider what grant to
make. But if the Governing Body chooses to carry out the instruction,
it could hardly be said that the instruction was being carried out
under any threat. It is certainly not open to a teacher to insist that
the Governing Body should not carry out the instruction. The rules
for the purpose of grant-in-aid being as in this case— merely executive
instructions confer no right of any kind on teachers and they cannot
apply to the H igh C ourt for a mandamus asking for the enforcem ent
or non-enforcem ent o f the rules, even if indirectly there may be some
effect on them because o f the grant-in-aid being withheld in w hole or
in part. Such mere administrative instructions even though called
rules are only a matter between the Governing Body and in the State
through the D irector and cannot in our opinion form the basis o f a
petition for writ under A rt. 226 by a teacher.
W e may in this connection refer to M js Raman and Raman v.

State o f Madras, (A .I.R . 1959 S.C. 694) where this cou rt had to
■consider certain orders and directions issued under S.43A o f the M o to r
Vehicles (Madras Am endm ent) A ct, 1948. T he question arose
whether the orders issued under S.43A had the status o f law or not.
This C ourt held that such orders did not have the status o f law
regulating the rights o f parties and must partake of the character o f
administrative orders. ' It was further held that there cou ld b e no
right arising out of mere executive instructions, much less a vested
SECTION 5 ] DELE^fTED LEGISLATION 281
right, and if such instructions were changed pending any appeal, there
would be no change in the law pending the appeal so as to affect any
vested right o f a party. That decision in our opinion governs the
present case also, for it has been found by the H igh Court, and it is
not disputed before us that the Rules are mere administrative
instructions and have not the force o f law as statutory rules. T hey
therefore con fer no right on the teachers of private colleges w hich
would entitle them to maintain a w rit petition under A rt. 226 for the
enforcem ent or non-enforcem ent o f any provision of the Rules. The
Rules being mere administrative instructions are matters betw een
private colleges and the Government in the matter o f grant-in-aid to
such colleges, and no teacher of a college has any right under the
Rules to ask either for their enforcem ent or for their non-enforcem ent.
W e are therefore o f opinion that the H igh C ourt was in error when it
granted a w rit against the State through the D irector, b y which the
D irector was asked not to give effect to its letter dated M arch 20,
1962, against the G overning Body o f the College.
In the result we allow the appeal and set aside the order o f the
High C ou rt granting a writ against the State through the D irector....
A ppeal allowed.

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C h apter I V

SECTION 2. GROWTH AND DEVELOPMENT

COMMITTEE ON MINISTER’S POWERS REPORT

There are a few general considerations to be stated. In the

It is custom ary to-da y for Parliament to delegate minor

constitutional law, of changes in our ideas of governm ent w hich have

Before the middle o f the nineteenth century the main functions

...[T ]h e change in the conception o f the function o f governm ent

These are the practical considerations w hich have induced

field and given up tlie fight. There will be no withdrawal from

NECESSITY FOR DELEGATION

. W e have already expressed the view that the system of

technical developm ent is rapid, and often unforeseen, delegation is

(5) The practice, again, permits of experiment being made and

( 6) In a modern state there are many occasions w hen there is a

W e end these observations with a truism. Emergencies are

SUMMARY OF ARGUMENTS OF THE CRlTiCS OF DELEGATED

For these reasons a system o f delegated legislation is indispensable.

(6) The privilegpd position o£ the Crown as against the subject

SECTION 3. THE NATURE OF DELEGATED LEGISLATION

WADE, ADMINISTRATIVE LAW

One o f the principal administrative activities is legislation.

This administrative legislation is traditionally teokcd upon ag.a'

between- legislation and administration, ani|;|the assumption that

If w e look at the practical side, it is at on ce plain that

The growth o f a problem

Uneasiness at the extent of delegated legislation began to be

called The Period of C ollectivism ’ was a symptom o f a new era.

(а) for promoting the productivity o f industry, com m erce, and

Power to vary Acts o f Parliament

It is quite possible for Parliament to delegate a p ow er to amend

impersonation o f executive autocracy’. T he usual o b je ct was to

The one standing provision for peace-tim e emergehcies is; tfcie

appears that the community, or any substantial part o f it, will be

T h e powers granted in war-time are, o f course, much w ider— and

service (this was the subject of other legislation) or industrial

S. R. DAS, “INAUGURATION ADDRESS’' TO THE ADMINISTRATIVE

general principles and leaving it to the executive G overnm ent to

It is an interesting study how the English and the Am erican

In the American Constitution, we find a different principle in

A ccordingly, they started with a com plete separation of pow ers

felt, and by judicial pronouncem ents beginning with tliose o f Marshall

M ajor P rem ise: Legislative pow er cannot be constitutionally

The A m erican Judges whittled down the doctrine by limiting it

SECTION 4. POWER OF LEGISLATURE TO DELEGATE

It is agreed on all sides that,delegated legislation is indispeiisable

to the institution of delegated legislation.^ N ational planning and

between the tw o conflicting forces: doctrin e o f separation barring

2, New Deal • During the N ew D eal era, the Supreme C ourt

about standard is artificial."'' Frank observes, “ ...[ilt is improbable

SCHWARTZ. AN INTRODUCTION TO AMERICAN

...In order to preserve the position o f the Congress as the primary

The Committee on Ministers’ Powers, it should be noted,

10. Frank, Cases on the Constitution 61 (1951).

the A m erican system. W h a t the A m erican rule demands is that

It cannot be denied, in the Hgbt of the above, that the attitude

DAVIS, 1 ADMINISTRATIVE LAW TREATISE

A s recently as 1932 the Supreme Court d e cla re d : “ That the

CONGRESSIONAL DELEGATIONS UPHELD-STANDARDS

Because of history or context, vague phrases of this sort may

interest is the practical equivalent o f instructing i t ; “ H ere is the

In N B C V. U nited States, the validity of the F C C ’s chain

In Yakus v. U nited States, the delegations o f the Emergency