In re Delhi Laws Act

With reference to the Constitutionality of

Delegated Legislation

Arpitha Anna Mathew

5th Semester B.B.A LL.B.
Section – B
Christ Academy Institute of Law
Queen v. Burah [1878 3 AC 889]

 Pre-constitutional era
 Act (No. XXII. of 1869) – Section 9
 The impugned Act gave certain powers to the Lt Governor
 Bring effect to the Act
 Determine what laws were to be applicable
 Extension of the application of the Act

 The act was enacted to remove Garo hills from the jurisdiction of civil and criminal courts
and extend all or any provisions of the Act in Khasi, Jaintia and Naga Hills in Garo Hills.
 Issue: Whether the power of application and extension
granted to the Lt. Governor is a delegatory power?

 “The Indian Legislature has powers expressly limited by the Act of the imperial Parliament which
created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But
when acting within those limits, it is not in any sense an agent or delegate of the imperial Parliament,
but has, and was intended to have, plenary powers of legislation as large and of the same nature as
those of Parliament itself.”

 This case shows that the Governor-General’s Legislative Council in India had wide powers to enact
laws and to delegate powers to other Executive authorities so that the administration of new smaller
areas could be easily done.
 Section 7, The Delhi Laws
Act, 1912
The Central Government may,
by notification in the official
gazette, extend to the Province
of Ajmer-Merwara with such
restrictions and modifications
as it thinks fit any enactment
which is in force in any other
Province at the date of such
notification."
Section 2, Ajmer-Merwara
(Extension of Laws) Act,
1947
"The Provincial Government
may, by notification in the
official gazette, extend with
such restrictions and
modifications as it thinks fit to
the Province of Delhi or any
part thereof, any enactment
which is in force in any part of
British India at the date of such
notification."
Section 2 of the Part ‘C’
States (Laws) Act, 1950
“Power to extend enactments to certain
Part ‘C’ States .—
The Central Government may, by
notification in the Official Gazette, extend
to any Part ‘C’ State (other than Coorg and
the Andaman and Nicobar Islands) or to
any part of such State, with such
restrictions and modifications as it thinks
fit, any enactment which is in force in a
Part A State at the date of the notification
and provision may be made in any
enactment so extended for the repeal or
amendment of any corresponding law
(other than a Central Act) which is for the
time being applicable to that Part ‘C’
State.”
 Issues
The President - Article 143 of the Constitution referred the case to the SC
Was Section 7 of the Delhi
Laws Act, 1912, or any of
the provisions thereof and
in what particular or
particulars or to what extent
ultra vires the Legislature
which passed the said Act ?
Was the Ajmer-Merwara Is section 2 of the Part C
(Extension of Laws) Act, States (Laws) Act, 1950, or
1947, or any of the any of the provisions thereof
provisions thereof and in and in what particular or
what particular or particulars particulars or to what extent
or to what extent ultra vires ultra vires the Parliament ?
the Legislature which passed
the said Act ?
 View of the Counsels
There exist separation of powers in the country and
Power of delegation comes along with the power
India follows delegates non potest delegare.
of legislation and the same does not result in
Therefore, there is an implied prohibition on
abdication of the powers
delegation of power

Fazl Ali, J conclusions regarding the case was:

i. The legislature must normally discharge its primary legislative function itself and not through
others.
ii. Is ancillary to and necessary for the full and effective exercise of its power of legislation.
iii. It cannot abdicate its legislative functions, and does not become a parallel legislature.
 Power to Legislate includes power to delegate

C.J Kania, Mahajan and Mukherjea J.J , Sastri and Das JJ,
Bose J

 Constitution has never per se warranted  Based on the theory of parliamentary

delegation powers at any stage sovereignty
 Conditionally legislate.  Power to make law comes along with
 Conditional legislation means delegating the power to delegate.
such legislative powers to the executive
which are necessary for the operation of
law
Limits of Delegation

 True and intrinsic legislative functions cannot be delegated

 Non-essential functions can be delegated
 J Mukhreaja – if the policy laid down in an Act is in broad terms, the formulation of the
details of the policy can generally to be passed to the executive.
 Mahajan J - essential matters cannot be delegated by the legislature.
 Kania CJ - legislature cannot delegate to lay down policy underlying a rule of conduct.
 The question on amount of discretion exercisable by delegated authority cannot be defined.
Delegated power to make alterations and
changes

 Kania C.J and Mahajan J - only legislature has the authority to modify and alter the law in any
substantive sense.
 Fazel Ali J - power to change necessary things is incidental to apply the law. If modifications are
done within the framework and does not change the identity or structure no objection could be
taken.
 Mukhreaja J - modification does not mean change of policy but it is confined to alterations
which keeps the policy intact and introduces changes appropriate to suit the local conditions.
 The executive authority could be authorised to modify but not in essential and intrinsic sense.
 Delegated power to repeal law

If any law exists and power is given to repeal or abrogate such laws either in whole or in part and

substitute in place of the same other laws which are in force in other areas, it would certainly amount to

an unwarrantable delegation of legislative powers.

To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy

behind such acts must be the policy of the legislature itself.

THANK YOU