In re Delhi Laws Act (1951)

It is known as the Bible of delegated legislation: seven Judges heard the case and produced seven separate judgments. It settles the Indian middle course between the view that a legislature may delegate without limit short of abdication and the view that the separation of powers forbids delegation altogether. Every later case in this module — Rajnarain Singh, Lachmi Narain, Rojer Mathew — applies its test.

By a reference by the President under Article 143, not an appeal, which explains the advisory form of the answers. The necessity arose from the Federal Court's decision in Jatindra Nath Gupta v Province of Bihar, which had held a proviso to the Bihar Maintenance of Public Order Act 1947 ultra vires "by reason of its amounting to a delegation of its legislative powers to an extraneous authority", casting doubt on three provisions.

Section 7, Delhi Laws Act 1912. "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, Ajmer-Merwara (Extension of Laws) Act 1947, in materially the same terms for Ajmer-Merwara.

Section 2, Part C States (Laws) Act 1950, which went further: it allowed extension of any enactment in force in a Part A State and provided that "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."

Section 7 of the 1912 Act was "in its entirety intra vires the legislature which passed it"; the Ajmer-Merwara Act was not ultra vires; and section 2 of the 1950 Act was ultra vires to the extent that it allowed the extension of laws "even though such laws might conflict with or affect laws already in existence in the area to which they are extended", so that the power to provide for the repeal or amendment of a corresponding provincial law was "illegal and ultra vires". The offending portion being severable, the whole section was not struck down.

The argument ran from two extremes — that the power of legislation carries the power to delegate unless the legislature has completely abdicated, against the theory of separation of powers said to prohibit delegation. "The Supreme Court took the via media and held:"

1. "Doctrine of separation of powers is not a part of the Indian Constitution."
2. "Indian Parliament was never considered an agent of anybody, and therefore the doctrine of delegates non potest delegare has no application." (read delegatus)
3. "Parliament cannot abdicate or efface itself by creating a parallel legislative body."
4. "Power of delegation is ancillary to the power of legislation."
5. "The limitation upon delegation of power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the Constitution. Essential legislative power means laying down the policy of the law and enacting that policy into a binding rule of conduct."

"(i) that the legislature cannot give that quantity and quality of law which is required for the functioning of a modem State, hence delegation is necessity; (ii) that in view of a written Constitution the power of delegation cannot be unlimited; and (iii) that the power to repeal a law or to modify legislative policy cannot be delegated because these are essential legislative functions which cannot be delegated."

"The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much detail as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy."

The American formulation he adopts: "So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply".

On the word abdication. It is not necessary that "the legislature should extinguish itself completely and efface itself out of the pages of the constitution". What is contemplated is "the surrender of essential legislative authority even in respect of a particular subject-matter of legislation in favour of another person or authority which is not empowered by the constitution to exercise this function." Lord Haldane's distinction, adopted, is between "seeking the assistance of a subordinate agency in the framing of rules and regulations which are to become a part of the law" and "conferring on another body the essential legislative function which under the constitution should be exercised by the legislature itself".

It is an intelligible policy that until proper legislative machinery exists in an area, Parliament may empower the executive to introduce laws already validly passed elsewhere, "the modifications being limited to local adjustments or changes of a minor character." But that presupposes no existing law on the subject in force there. Where the power extends to repealing or abrogating existing laws and substituting others, "it would certainly amount to an unwarrantable delegation of legislative powers", because "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." A power to decide which existing laws are useful and to replace them would "invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down."

The opinion also settles that conditional legislation is a different thing: there "the element of delegation that is present relates not to any legislative function at all, but to the determination of a contingency or event, upon the happening of which the legislative provisions are made to operate", and it "has all along been treated in judicial pronouncements not to be a species of delegated legislation at all." The authorities are Queen v Burah, Russell v Queen and King v Benoari Lal Sarma.

The legislature may delegate everything except its essential legislative function, which is the determination of policy and its enactment into a binding rule of conduct. Extension of an existing enactment with minor local modification is permissible; power to repeal or amend an existing law is not.

• One line to carry: extension is permissible, repeal is not.
• Pair it with Rajnarain Singh, which holds that picking and choosing sections within an enactment is itself a policy choice and therefore bad.
• Pair it with Lachmi Narain, where the same test is used not to strike down a statute but to confine a delegate.
• For the modern application, Rojer Mathew holds that prescribing the qualifications of tribunal members is an essential legislative function.