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ANALYSIS OF IN RE DELHI LAWS ACT CASE: CONCEPT OF DELEGATED

LEGISLATION AND ITS IMPACT ON ADMINISTRATIVE LAW IN INDIA

Ashmira Moon1

REVIEW OF LITERATURE

In this research the student will consider certain books, journals, research articles, and
authentic internet sites to fulfill the research question of the project. Some of the books
referred by the Students and Professors. The project also includes online sources and preserve
articles and some dynamic blogs.

RESEARCH QUESTION

1. What is the importance of the case in Post Constitution?

2. What is the Impact of the case?
3. What are the limits for delegated legislation?

RESEARCH METHODOLOGY

In order to approach the objectives, research questions of the study, which the researcher will
be going to be discussed. And the deep review will be done regarding the issues of the
respected topic in a proper manner. The Researcher approached the doctrinal model of the
Research Methodology. The Researcher made an effort to examine the primary sources like
newspaper, books and e-resources.

In this research, many academicians, experts, professors help in the study and gave their real
contribution to the research. E-resources was the main source of the research for getting the
contemporary news and relevant case laws related to the topic, which helped the researcher to
think more in other dimensions.

1
BA LLB, THIRD YEAR, MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR.

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INTRODUCTION

Delegated Legislation is one of the essential and controversial topics related to

Administrative Law. The word ‘Delegation’ means extending the power of one person to
another. So, the delegation of legislation means transferring the Authority/ Power of the
superior to the subordinate. Delegated legislation is also known as the laws by the executive
under the power delegated to it, by the legislature. As we know, the legislature makes laws
and then the judiciary punishes the person, who infringe the laws or doesn't follow the laws.
So, basically the legislature dealt with superior power because of the excessive burden,
delegation took place along with the power of legislation and it shifted to Administrative
Function.

The case which we are going to discuss is one of the landmark judgments by the Supreme
Court and also known as a ‘Bible case’ as far as the delegated legislation is concerned. The
case had seven judges on the bench. There was a huge argument with each counselor on
delegated legislation. The delegated legislation has been in existence from pre-Independence
to post- Independence and as well as in post-Constitution.2 The Researcher is going to discuss
Post-Constitution or After Constitution, because the researcher will be dealing with the case
of In re Delhi Laws Act Case.

BACKGROUND OF THE CASE

In the Re Delhi Laws Case, there were some pre-existing Acts, which contained some
delegation. Let’s take a look at which sections of the respective Act talks about delegated
legislation.

1) The Delhi Laws Act,1912: Section 7 says that “the provincial government may, by
notification in the official gazette, extend with such restriction and modification as it
thinks fit to the province of Delhi or any part hereof, any enactment which is in force
in any part of British India at the date of such notification.”3
2) The Ajmer- Marwar (extension of laws) Act, 1947: Section 2, “the Central
Government may, by notification in the official gazette, extend to the province of

2
ID.
3
Section 7, The Delhi Laws Act, 1921.

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Ajmer-Marwar 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.” 4

3) Part C States (Laws) Act, 1950: Section 2 runs as follows, Power was delicate to the
Central Government for two purposes & two provisions were made.

i) To Extend & apply with restriction and modification recruitment in force in part A
state to part C state.

ii) It also gave delegated power to the Central Government to repeal or amend any
corresponding law.5

Before Independence, during the formation of this Act, the states were divided into three
kind’s i.e Part A States/ Part B States/ Part C States. These Acts were sent to the President
and they entertained the doubt regarding a delegation power i.e whether such delegation was
proper and permissible. So, the President of India referred the Supreme Court under Article
123 of Constitution6 for seeking the opinion on delegated power given to the Executive/
Administration in the mentioned Acts.”

LEGAL ISSUES

1. “Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof, or to
what extent the ultra vires the legislature which passed the said Act?”

2. “Was the section 2 of Ajmer Marwar- extension of laws Act 1947 or any of the
provisions thereof ultra vires the legislature which passed the said Act?”

3. “Is Section 2 of the Part C States (laws) Acts 1950 or any of the provisions thereof
ultra vires the parliament?”

In short, whether the Indian Parliament and State Legislature had the power to transfer its
sole functions of legislative body to an executive authority. And if so, then to what limits can
it be done so?

4
Section 2, The Ajmer-Marwar (extension of laws) Act, 1947.
5
Section 2, Part C States (Laws) Act, 1950.
6
Art. 123, Constitution of India, 1950.

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JUDGMENT

(i) In the first Issue, the Act delegated the power to the provincial government to the Delhi
area with some restrictions and modification in any parts of the British India laws. The
Supreme Court held section 7 as valid by the majority of opinion. (ii) In the Second issue, the
Act delegated the power to the Central Government to the extent to the provinces with some
modification and restriction as much as it fits in the Act, and again the Supreme Court held
this section 2 to be a Valid. (iii) Part C states directly “come under the Central Government
without having their own legislature. So, the Parliament has to legislate them somehow or
other. The delegated power was given to the Central Government to the extent of the Part C
states with some modification and restriction as much as it can be in force to any Part A
states.”

The Central Government has also delegated some exclusive powers like to repeal the Act or
to amend any corresponding laws which were applicable to Part C States. The Supreme Court
kept this section valid till modification and restriction but when it comes to repeal or amend
any act or any laws, it goes invalid. So, the Supreme Court declared it void because the laws
were applicable to Part C and held to be an essential function and delegation would amount to
excessive delegation on part of Parliament.

Based on the opinion of the seven judges (which the researcher is going to talk about it
further), Supreme Court decided their Judgment:

1. “Separation of Power” is not a part of Indian Constitution.

2. Indian Parliament was never being an agent of anybody. Therefore, doctrine of

“delegatus non potest delegare” (no transfer of power can be further transfer) is not
applicable.

3. Parliament cannot totally relinquish itself by making a parallel authority.

4. Only auxiliary capacities or non-essential functions can be delegated.

5. There is a limitation on delegation of power. Legislature cannot delegate its essential

functions involving setting down the strategy of the law and enacting that strategy
into binding rules of conduct.

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Overall the judgment legitimized the delegation of the legislative power by the
legislature to the administrative organ/ it gives an overall limit on delegation by the
legislature.7

ANALYSIS OF THE OPINION

Seven judges bench over this case provided their 7 different supposition. In this case, half of
the bench was permitting delegated legislation, while on the other hand it demarked the scope
of the permissible delegation of power. There were a lot of extremist views kept forward by
the judges. M.C. Setalvad took a view that the power of delegation always comes along with
the power of legislature and the same doesn’t result in abdication of the power. 8 M.C.
Chatterjee took the view that, there is an existence of separation of power in many countries
including India and India follows, “Delegated Non Potest Delegare” (which means one to
whom power is delegated cannot himself further delegate the power). There is an indirect
restriction on delegation of power.

There was a unity on two points: first was that the Central Government and state legislature
had to delegate the power in order to deal with the problems prevailing in India, as we can’t
expect each and everything to come with a complete enactment on all the subjects looked to
be administered on. Second point was that the lawmaking body got its capacity from the
Constitution, and the opportunity in the British Constitution can't be allowed and restrictions
are required

(i) Power to Legislature Include Power of Delegate:

Many of the counselors' intention was that the legislature should only be enacted by the
legislature as a sole concern. They can't get leave or retire from the task of law making to
another body, because their sole duty or power is given to them by the constitution. After the
end of the discussion, it cleared that the power to make laws come with the delegation of
power.

(ii) Limits of Delegation:

7
Chhavi Agarwal, In Re Delhi Laws Act Case: Landmark in Concept of Delegated Legislation in India,
www.manupatra.com/roundup/333/Articles/In re Delhi Laws Act Case.pdf, (last visted on Oct 19, 2020).
8
Supra Note 2, at 70.

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If the legislature wants to delegate the power then they can do so, but with certain conditions.
Like the delegation will also be with the non-essential function. That means, the legislature
can’t delegate any essential or sole policy of the act or law to the executive to modify it or
amend it. Although amendment is not applicable at all. J. Mukhraja stated that, if the policy
approach the acts in a broad sense, then the formulation of the details with respect to the
policies can be passed to the executive. No essential matter can be delegated.

(iii) Delegation of power to make Modification or Alteration:

The Counselor observed that only the legislature has the authority or power to modify or alter
the laws in any sense. But in case of delegation, if the modifications are done with the
framework and doesn’t change the identity or the structure then no question could be asked
against it but the modification shouldn’t be changing the main policy, it should keep the
policy intact and let that policy be the essential thing. 9

REPEAL OF LAW

Power to repeal a law is a sole function of the legislature and delegating that power to the
government can be ultra vires to the power to delegate. The few judges held this section to be
perfectly valid but the remaining counselors weren’t in favour. Their opinion was that the
essential function can’t be delegated under any condition. In short legislature can’t be
renounce its power as similar to that the legislature can’t delegate its essential power.

IMPACT OF THE CASE

Many questions arose regarding the limits of delegation of power, after In re Delhi Case. The
first case was “Gwalior Rayon Silk Manufacturing Co. v Assistant”10 “sec8(2)(b) of Central
Sales Tax Act,1956” states that the sales tax on interstates sale at the rate of 10% or the rate
applicable to the sale or purchase of goods in the state whichever is higher. The above stated
line was challenged as an excessive delegation on the ground that no policy was set down in
the parent Act. But the Act held to be legitimate or valid. Some of the judges stated the
“standard test” for delegation i.e if the law making body gives power to authority to make

9
Lawctopus, https://www.lawctopus.com/academike/delegated-legislation-re-delhi-laws-act, (last visted on Oct
19, 2020).
10
(1974) 4 SCC 98

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delegated legislation, then it must set down the principle, policies or unique guidelines for the
delegation is concerned. On the Abdication test- the legislature doesn't abdicate its power.

Indeed, even in case of “Brij Sunder v First Additional District Judge”11 the court permitted
the augmentation of future laws of another state to which the selected state legislature never
had an opportunity to exercise its mind. In addition to this, in the case “Registrar of Co-
operative Societies v K Kanjambu”12 the court overruled the “policy and Guidelines” test.
All these cases maintained the Constitutional Validity of the delegate legislation.

CONCLUSION

After reading the entire case, there were only issues regarding the limitations, while
delegating the power to an executive. But currently delegated legislation is not an issue of
debate. Nowadays, the societal changes are happening in our country, and with respect to that
the different limits and controls will have to be framed for delegation. This case set down the
foundation on which the issue regarding the extent and limits of the delegation of legislation
has become accessible. This case gave a fundamental principle to the judicial system to carry
forward any issues regarding delegation. Although, the case talks about British or the
American model but it isn't implemented in India. Indian system borrowed extensively from
other systems around the world but the situation in this case will be viewed as “Indian Model
on Delegated Legislation” set out for different nation to consider.

11
(1989) 1 SCC 561
12
(1980) 1 SCC 492

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