Queen

v.

Burah

[(1878) 3 AC 889]

ADMINISTRATIVE LAW

CIA -1

Submitted To: Submitted By:

Akansha ma’am Allen sajeev
Faculty 19213204
(School of Law) BBA LLB(Hons)

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INTRODUCTION
In the realm of legal theory, delegated legislation is one of the most debatable issues because
of its various implications. Indian democracy is said to rest on the acclaimed four pillars and
these are the legislature, the executive, the judiciary, and the press. These pillars are
empowered by the constitution not to interfere in the matters of others. As per the
Constitution, the legislative has legislative powers and the Executive has the power to
execute the laws. In contrast to this increasing legislative activity, the legislatures are not able
to find adequate time to legislate on every minute detail. They have limited themselves to
policy matters and have left a large volume of area to the Executive to make rules to carry out
the purposes of the Legislature. In such types of situation, the system of delegated legislation
comes to our mind. Therefore, the need for delegation is necessary and is sought to be
justified on the ground of flexibility, adaptability and speed.

BACKGROUND AND HISTORY OF THE CASE

The Privy Council has only authorised conditional legislation in Queen v. Burah (1878). In
this case, the privy council transferred the legislature’s power to the executive. The
administration of a territory’s civil and criminal justice might be entrusted to officials
selected by the Lieutenant-Governor regularly.

The historical backdrop of the delegation of power can be followed from the Charter Act of
1833 when the East India Company was recapturing political impact in India. The Charter
Act of 1833 vested the administrative powers only in the hands of the Governor-General-in
Council, which was an official body. He was enabled to make laws and guidelines for
revoking, correcting or modifying any laws or guidelines, which were for all people
regardless of their nationality. In 1935 the Government of India Act, 1935 was passed which
contained a serious plan of delegation. our Constitution depended on the separation of power;
a total partition of forces was unrealistic henceforth it kept up the holiness of the tenet in the
cutting edge sense. The Indian Constitution does not deny the assignment of forces. Then
again there are a few arrangements where the official had been conceded with the
administrative forces. For instance, the administrative forces of the President under the Indian
Constitution are prominent. The problem of the delegation of legislation in India originated
under the British rule when the controversy on the problem in the West was in full swing. the

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politicians in the Constituent Assembly tended to multiply legal formulations. These issues
were of minor importance on which legal formulation was made in comparison to other
greater constitutional issues that were by-passed by the Assembly that were left to future
accord or judicial interpretation. In the case of Queen v. Burah, nature and extent of
Legislature power and the feasibility of its delegation was considered by the Privy Council.
The Privy Council, in this case, held that Councils of Governor-General was supreme
Legislature and has ample number of powers and who are entitled to transfer certain powers
to provincial executors. At the time of passing of New Delhi Act of 1912, the Privy Council
accepted the transfer of Legislature power to the Executive.1

FACTS

The Act in question (Act XXII of 1869) deals with the Governor General’s power to bring the
Act in effect, determine what laws were to be applicable and the power to extend application
of provisions of the Act. Here an Act was passed by the Indian legislature to remove Garo
Hills from the civil and criminal jurisdiction of Bengal and vested the powers of civil and
criminal administration in an officer appointed by the Lt. Governor of Bengal. The Lt.
Governor was further authorized by S.8 of the Act to extend any provision of this Act with
incidental changes to Khasi and Jaintia Hills. One Burah was tried for murder by the
Commissioner of Khasi and Jaintia Hills and was sentenced to death.2

ISSUE

The question was whether these functions would be categorized as delegated legislation.

JUDGMENT

The court held that the above-mentioned powers were conferred only on the fulfilment of
certain conditions and hence this was conditional legislation, a concept all together different
from delegated legislation. The court also stated that “It is a general principle of law in India
that any substantial delegation of legislative authority by the legislature of the country is
void”. The case thus lays down that substantive delegation i.e. delegation if the important

1
https://old.amu.ac.in/emp/studym/100002551.pdf
2
https://www.iilsindia.com/study-material/996199_1624043290.docx

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functions are void in India and that delegation, if at all possible, would have to be
conditional.

DEFINITION OF CONDITIONAL LEGISLATION

When the law is complete and certain conditions are laid down as to how and when the law
would be applied by the delegate, it is conditional legislation. It includes no law-making
powers but only the power of determining when it should come into force or when it should
be applied.3

CONDITIONAL LEGISLATION CAN BE FOUND IN THE OCCURRENCES

WHERE:

I. The legislature empowers the executive to expand the activity of a current law to a specific
area or region.

II. To determine and decide the time of application of an Act to a given area.

III. To broaden the span of a Temporary Act, subject to maximum period fixed by the
legislative assembly.

IV. To determine and decide the degree and limits within which the statute or Act should be
employable and operative.

V. Lastly, to introduce a special law if the contemplated situation has arisen in the opinion of
the government.

Conditional Legislation allows better implementation and better reach of laws as it gives
them ample discretion to work and to make decisions regarding implementation in the best
manner possible. Thus, all the modern socio-economic welfare schemes are a formation of
the legislature, but they have become successful in the country because of their
implementation. All the “when, where and how” aspects of implementation have been ticked
generously by the government because of the discretion that they have been given by the
legislature for the implementation of the Acts framed by the lawmakers. But this discretion
cannot be exercised beyond the power that has been delegated. If exceeded, then that action is
null and void.
3
https://lawbhoomi.com/conditional-legislation

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CONDITIONAL LEGISLATION AND DELEGATED LEGISLATION :-

Conditional legislation though a kind of delegated legislation is different from it as the latter
includes conferring law-making power to another body, but the former is only for bringing
the law in force by another body without having any law-making power. Both the jobs are
being done by delegates, but one involves law making and the other involves implementing
the same. The point of commonality being that both are done by delegates with a motive of
better implementation and usage of law. One with framing supporting rules, guidelines,
notifications and the other with method and satisfying conditions for execution of the law
made by the assembly accordingly. In the end, delegated legislation be it of any kind is
working under the umbrella of powers given by the law-making bodies of central and state
governments respectively.

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