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PETITIONER: In re THE DELHI LAWS ACT, 1912,THE AJMER-MERWARA (EXTENSION

       Vs.

RESPONDENT: THE PART C STATES (LAWS) ACT, 1950.

DATE OF JUDGMENT: 23/05/1951

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE, VIVIAN MUKHERJEA, B.K.

CITATION:  1951 AIR  332            1951 SCR  747  CITATOR INFO :  R          1952 SC  75  (29)  RF         1952 SC 123  (9,49)  D          1952 SC 252  (64,110)  R          1953 SC 252  (27)  R          1954 SC 465  (9)  RF         1954 SC 569  (17)  R          1957 SC 414  (13)  RF         1957 SC 510  (9,11)  R          1958 SC 468  (25)  R          1958 SC 682  (11)  R          1958 SC 909  (7)  R          1958 SC 956  (4)  R          1959 SC 512  (7)  E&F        1959 SC 749  (28)  E          1960 SC 833  (8)  RF         1961 SC   4  (15)  R          1961 SC 954  (23)  RF         1961 SC1381  (4)  RF         1961 SC1519  (4)  RF         1962 SC 981  (5,6,12,13)  F          1964 SC 381  (38)  R          1965 SC 745  (17,156,178)  R          1965 SC 845  (30,55)  R          1965 SC1107  (22,79,80)  MV         1966 SC 693  (28)  D          1966 SC1788  (44,45)  RF         1967 SC 212  (26)  RF         1967 SC1048  (20)  R          1967 SC1480  (3,4,9,19)  RF         1968 SC1232  (13,15,49,50,52,75)  RF         1969 SC 549  (2)  RF         1971 SC 454  (6)  RF         1973 SC1461  (227,450,566,1874,1890)  D          1974 SC 669  (12)  R          1974 SC1660  (17,28,48,55)  R          1975 SC1549  (34,35)  RF         1975 SC2299  (46,685)  D          1976 SC 714  (38,41,45,48,51,57,58,62,64,69  RF         1979 SC1475  (18)  R          1980 SC 650  (5)

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RF         1980 SC 882  (15)  C          1982 SC 710  (51)  R          1982 SC1126  (9)  R          1984 SC1130  (29)  R          1990 SC 560  (3,12,13,14,17,18,20,21,22,23,  RF         1992 SC 522  (21)

ACT:     Delhi Laws Act, 1912, s. 7--Ajmer-Merwara (Extension  of Laws) Act, 1947, s. 2--Part C States (Laws) Act,  1950--Laws giving  power  to Government to extend to Delhi  and  Ajmer- Merwara  with  such  restrictions and  modifications  as  it thinks fit any law in force in any other part of  India--Law empowering Government to extend to Part C States any law  in force in a Part A State and to repeal existing laws --Valid- ity--Rule  against delegation of  legislative  powers--Scope and  basis of the rule--Applicability  to  India--Difference between  delegation  of legislative  power  and  conditional legislation--Powers of Indian Legislature  under the  Indian Councils  Act, 1861, the Government of India Act, 1935,  and the Indian Constitution, 1950.

HEADNOTE:     Section 7 of the Delhi Laws Act, 1912, provided that "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  there- of,  any enactment which is in force in any part of  British India  at the date of such notification".  Section 2 of  the Ajmer-Merwara  (Extension of Laws) Act, 1947, provided  that "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  enact- ment which is in force in any other Province at the date  of such  notification.  Section 2 of the Part C  States  (Laws) Act,  1950,  provided that "The Central Government  may,  by notification  in the official gazette extend to any  Part  C State   ........   or to any part of such State,  with  such restrictions and modifications as it thinks fit, any  enact- ment 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   ....  which is for the time being applicable  to  that Part  C  State.  As a result of a decision  of  the  Federal Court,  doubts were entertained with regard to the  validity of  laws  delegating  legislative powers  to  the  executive Government  and the President of India made a  reference  to the Supreme Court under Art. 143 (1) of the Constitution for considering  the question whether the  above-mentioned  sec- tions  or any provisions thereof were to any extent, and  if so to what extent 748 and  in what particulars, ultra vires the legislatures  that respectively passed these laws, and for reporting to him the opinion   of the Court thereon:      Held, (1)per FAzL ALl, PATANJALI SASTRI, MUKHERJEA, DAS and  Bose JJ., (KANIA C.J., and MAHAJAN  J.,   dissenting).- Section  7  of  the Delhi Laws Act, 1912, and s.  2  of  the Ajmer-Merwara  (Extension  of Laws) Act,  1947,  are  wholly intra  vires. KANIA C.J.--Section 7 of the Delhi  Laws  Act, 1912, and s. 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947,  are ultra vires to the extent power is given  to  the

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Government  to  extend Acts other than Acts of  the  Central Legislature  to  the Provinces of  Delhi  and  Ajmer-Merwara respectively inasmuch as to that extent the Central Legisla- ture  has abdicated its functions and delegated them to  the executive  government.  MAHAJAN J.--The above said  sections are ultra vires in  the following  particulars: (i) inasmuch as  they permit the executive to apply to Delhi  and  Ajmer- Merwara, laws enacted by legislatures not competent to  make laws for those territories and which these legislatures  may make  within their own legislative field, and (ii)  inasmuch as  they clothe the executive with co-extensive  legislative authority  in  the matter of modification of  laws  made  by legislative bodies in India.      (2) Per FAZL ALI, PATANJALI SASTRI, MUKHERJEA, DAS  and BOSE  JJ.--The  first portion of s. 2 of the Part  C  States (Laws)  Act, ;950, which empowers the Central Government  to extend to any Part C State or to any part of such State with such  modifications  and restrictions as it thinks  fit  any enactment  which  is in force in a Part A  State,  is  intra vires.  Per KANIA C.J., MAHAJAN, MUKHERJEA and Boss JJ.--The latter  portion of the said section which empowers the  Cen- tral Government to make provision in any enactment  extended to a Part C State, for repeal or amendment of any law (other than  a Central Act) which is for the time being  applicable to that Part C State, is ultra vires.  Per FAzL ALI,  PATAN- JALI  SASTRI and DAS JJ.--The latter portion of s. 2 of  the Part C States (Laws) Act, 1950, is also intra vires.        KANIA  C.J.--To  the extent that s. 2 of the  Part  C States (Laws) Act, 1950, empowers the Central Government  to extend laws passed by any Legislature of a Part A Slate to a Part C State it is ultra vires.      MAHAJAN J.--Section 2 of the Part C States (Laws)  Act, 1950,  is ultra vires in so far as it empowers  the  Central Government (i) to extend to a Part C State laws passed by  a legislature  which is not competent  to make laws  for  that Part C State and (ii) to make modifications of laws made  by the legislatures of India and (iii) to repeal or amend  laws already applicable to that Part C State.    749     KANIA C.J.--(i) The essentials of a legislative function are  the  determination of the legislative  policy  and  its formulation  as a rule of conduct and these  essentials  are the  characteristics  of  a legislature  by  itself.   Those essentials arc preserved when the legislature specifies  the basic  conclusions of fact upon the ascertainment  of  which from relevant data by a designated administrative agency  it ordains that its statutory command is to be effective.   The legislature  having  thus made its laws,  every  detail  for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left  to another  subordinate  agency or to some  executive  officer. While  this  is also sometimes described  as  delegation  of legislative powers, in essence it is different from  delega- tion  of  legislative  power as this does  not  involve  the delegation of the power to determine the legislative  policy and formulation of the same as a rule of conduct.  While the so called delegation which empowers the making of rules  and regulations has been recognised as ancillary to  legislative power, the Indian Legislature had no power prior to 1935  to delegate  legislative power in its true sense.   Apart  from the  sovereign  character of the  British  Parliament  whose powers  are absolute and unlimited, a general power  in  the legislature to delegate legislative powers is not recognised in  any state.  The powers of the Indian  Legislature  under the Constitution Acts of 1935 and 1950 are not different  in

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this respect. (ii)An "abdication" of its powers by a  legis- lature need not necessarily amount to complete effacement of itself.  It may be partial. If full powers to do  everything that  the legislature can do are conferred on a  subordinate authority,  although  the legislature retains the  power  to control the action of the subordinate authority by recalling such  power or repealing the Acts passed by the  subordinate authority,  there  is  an abdication or  effacement  of  the legislature conferring such power.     FAzL  ALl J.--(i) The legislature  must  formally   dis- charge  its  primary  legislative function  itself  and  not through  others. (ii) Once it has been established  that  it has sovereign powers within a certain sphere, it is free  to legislate within that sphere in any way which appears to  it to  be  the  best way to give effect to  its  intention  and policy  in  making a particular law and it  may.utilise  any outside  agency to any extent it finds necessary  for  doing things,  which it is unable to do itself or finds it  incon- venient to (iii) It cannot, however abdicate its legislative functions  and therefore, while entrusting power to an  out- side agency, it must see that such agency acts as a subordi- nate  authority and does not become a parallel  legislature. (iv)  As the courts of India are not committed to  the  doc- trine  of separation of powers and the judicial  interpreta- tion  it  has received in America, there are only  two  main checks  in this country on the power of the  legislature  to delegate, these being its good sense and the principle  that it should not cross the line beyond which delegation amounts to 750 ’abdication  and self-effacement.’-(v)  The power to  intro- duce necessary restrictions and modifications is  incidental to  the power to adapt or apply the law.  The  modifications contemplated are such as can be made within the framework of the Act and not such as to affect its identity or  structure or the essential purpose  to be served by it. PATANJALI SASTRI J.--(i) It is now established beyond doubt that  the Indian Legislature, when acting within the  limits circumscribing  its legislative power, has and was  intended to  have plenary powers of legislation as large and  of  the same nature as those of the British Parliament itself and no constitutional  limitation on the delegation of  legislative power  to  a subordinate unit is to be found in  the  Indian Councils Act, 1861, Or the Government of India Act, 1935, or the Constitution of 1950.  It is therefore as competent  for the Indian Legislature to make a law delegating  legislative power,  both quantitatively and qualitatively. as it is  for the British Parliament to do so, provided it acts within the circumscribed  limits.  (ii) Delegation of  legislative  au- thority is different from the creation of a new  legislative power.  III the former, the delegating body does not  efface itself  but retains its legislative power intact and  merely elects  to exercise such power through an agency or  instru- mentality of its choice. In the latter, there is no  delega- tion  of power to subordinate units but a grant Of power  to an  independent and co-ordinate body to make laws  operative of  their  own force.  For the first, no  express  provision authorising  delegation  is required.  In the absence  of  a constitutional inhibition, delegation of legislative  power, however  extensive, could be made so long as the  delegating body  retains  its own legislative power  intact.   For  the second,  however, a positive enabling provision in the  con- stitutional document is required.  (iii) The maxim delegates non potest delegare is not part of the constitutional law of India  and has no more force than a political precept to  be

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acted  upon by legislatures in the discharge of their  func- tion  of making laws, and the courts cannot strike  down  an Act of parliament as unconstitutional merely because Parlia- ment decides in a particular instance to entrust its  legis- lative  power  to another in whom it has confidence  or,  in other  words, to exercise such power through  its  appointed instrumentality,  however repugnant such entrustment may  be to the democratic process.  What may be regarded as  politi- cally undesirable is constitutionally competent. (iv) Howev- er  wide  a  meaning may be  attributed  to  the  expression "restrictions  and modifications," it would not  affect  the constitutionality of the delegating statute.       ’MAHAJAN  J.--(i) It is a settled maxim  of  constitu- tional  law  that  a legislative body  cannot  delegate  its power. Not only the nature of legislative power but the very existence  of representative government depends on the  doc- trine  that  legislative powers cannot be  transferred.  The legislature cannot substitute the 751 judgment,  wisdom,  and patriotism of any  other  body,  for those  to  which alone the people have seen fit  to  confide this sovereign trust. The view that unless expressly prohib- ited  a  legislature  has a general power  to  delegate  its legislative  functions  to a subordinate  authority  is  not supported  by authority or principle.  The correct  view  is that unless the power to delegate is expressly given by  the constitution,  a legislature cannot delegate  its  essential legislative  functions. As the Indian Constitution does  not give  such  power  to the legislature, it has  no  power  to delegate essential legislative functions to any other  body. (ii)  Abdication by a legislative body need not  necessarily amount to complete effacement.  There is an abdication  when in  respect of a subject in the Legislative List  that  body says in effect that it will not legislate but would leave it to another to legislate on it. MUKHERJEA J.--As regards constitutionality of the delegation legislative powers, the Indian Legislature cannot be in  the same  position as the omnipotent British Parliament and  how far delegation is permissible has to be ascertained in India as  a matter of construction from the express provisions  of the Indian Constitution.  It cannot be said that an unlimit- ed right of delegation is inherent in the legislative  power itself.  This  is  not warranted by the  provisions  of  the constitution  and the legitimacy of delegation  depends  en- tirely upon its being used as an ancillary measure which the legislature  considers  to be necessary for the  purpose  of exercising its legislative powers effectively and  complete- ly.  The legislature must retain in its own hands the essen- tial.  legislative functions which consist in declaring  the legislative policy and laying down the standard which is  to be  enacted into a rule of law and what can be delegeted  is the task of subordinate legislation which by its very nature is  ancillary  to the statute which delegates the  power  to make it.  Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the  courts should  not interfere with the discretion  that  undoubtedly rests with the legislature itself in determining the  extent of delegation necessary in a particular case.      Das J.--(i) The principle of non-delegation of legisla- tive powers founded either on the doctrine of separation  of powers  or  the theory of agency has no application  to  the British Parliament or the legislature constituted by an  Act of the British Parliament;(ii) in the ever present  complex- ity  of  conditions  with which governments  have  to  deal, the.power of delegation is necessary for, and ancillary  to,

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the  exercise of. legislative power and is a component  part of it; (iii) the operation of the act performed under  dele- gated power is directly and immediately under and by  virtue of the law by which the power was delegated and its efficacy is referable to that antecedent law; (iv) if what the legis- lature  does is legislation within the general scope of  the affirmative words which give the power and if it violates no express 752 Condition  or  restriction by which that power  is  limited, then  it is not for the court to inquire further or  enlarge constructively  those conditions or restrictions; (v)  while the legislature is acting within its prescribed sphere there is,  except as herein after stated, no degree of,  or  limit to,  its  power of delegation of its legislative  power,  it being  for  the legislature to determine how far  it  should seek  the aid of subordinate agencies and how long it  shall continue them, and it is not for the court to prescribe  any limit  to  the legislature’s power of delegation;  (vi)  the power of delegation is however subject to the  qualification that the legislature may not abdicate or efface itself, that is, it may not, without preserving its own capacity  intact, create  and  endow with its own capacity a  new  legislative power not created or authorised by the Act to which it  owes its  own  existence.  (vii) The impugned laws  may  also  be supported as instances of conditional legislation within the meaning of the decision in Queen v. Burah.     Bose  J.--The Indian Parliament can legislate along  the lines  of  Queen v. Burgh, that is to say, it can  leave  to another  person or body the introduction or  application  of laws which are, or may be, in existence at that time in  any part of India which is subject to the legislative control of Parliament, whether those laws are enacted by Parliament  or by  a  State Legislature set up by  the  constitution.   But delegation  of  this  kind cannot proceed  beyond  that;  it cannot  extend  to the repealing or  altering  in  essential particulars  laws which are already in force in the area  in question.

JUDGMENT:     SPECIAL  JURISDICTION: Special Reference No. 1 of  1951. The circumstances which led to this Special Reference by the President  and the questions referred appear from  the  full text  of  the reference dated 7th January,  1951,  which  is reproduced below :--     "WHEREAS in the year 1912 the Governor-General of  India in  Council acting in his legislative capacity  enacted  the Delhi Laws Act, 1912, section 7 of which conferred power  on the  Central  Government by notification to  extend  to  the Province  of  Delhi (that is to say, the  present  State  of Delhi)  or  any  part thereof, with  such  restrictions  and modifications as it thought fit, any enactment which wag  in force  in  any  part of British India at the  date  of  such notification;    "AND WHEREAS in 1947 the Dominion Legislature enacted the Ajmer-Merwara  (Extension of Laws) Act, 1947, section  2  of which conferred power on the Central Government by notifica- tion to extend to the Province of Ajmer-Merwara (that is  to say, the present State of Ajmer), with such restrictions and modifications as it thought fit, any enactment which was  in force  in any other Province at the date of  such  notifica- tion; 753

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   "AND  WHEREAS, by virtue of the powers conferred by  the said sections of the said Acts, notifications were issued by the Central Government from time to time extending a  number of Acts in force in the Governors’ Provinces to the Province of Delhi and the Province of Ajmer-Merwara, sometimes  with, and  sometimes without, restrictions and modifications,  and the Acts so extended      and the orders,rules, by-laws  and other  instruments issued  under such Acts were and are  re- garded as valid law in force  in the Province (now State) of Delhi  and  in the Province of Ajmer-Merwara (now  State  of Ajmer),  as the case may be, and rights and privileges  have been   created, obligations and  liabilities have  been  in- curred and penalties, forfeitures and punishments have  been incurred or imposed under such Acts and instruments;     "AND  WHEREAS Parliament with the object inter  alia  of making a uniform provision for extension of laws with regard to all Part C States except Coorg and the Andaman and  Nico- bar  Islands  enacted the Part C States  (Laws)  Act,  1950, section 2, of which confers power on the Central  Government by  notification to 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 also confers  the power  on  the Central Government to make provision  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;     "AND WHEREAS section 4 of the Part C States (Laws)  Act, 1950 has repealed section 7 of the Delhi Laws Act, 1912, and the  Ajmer-Merwara  (Extension of Laws)Act,  1947,  but  the effect of the provisos to the said section is, notwithstand- ing  the said repeals, to continue, inter alia in force  the Acts extended to the Provinces of Delhi and Ajmer-Merwara or the States of Delhi and Ajmer under the provisions  repealed by the said section;     "AND  WHEREAS  notifications  have been  issued  by  the Central  (Government from time to time under section  9,  of the Part C States (Laws) Act, 1950, extending Acts in  force in  Part A States to various Part C States  sometimes  with, and sometimes without, restrictions and modifications;     "AND WHEREAS the Federal Court of India in Jatindra Nath Gupta  v. Province of Bihar(1) held by a majority  that (1)[1949] F.C.R. 595. 754 the  proviso  to sub-section (3) of section 1 of  the  Bihar Maintenance  of Public Order Act, 1947, was ultra  vires  of the Bihar Legislature inter alia on the ground that the said proviso  conferred  power on the  Provincial  Government  to modify  an  Act  of the Provincial  Legislature   and   thus amounted to a delegation of legislative power;   "AND  WHEREAS,  as a result of the said  decision  of  the Federal Court, doubts have arisen regarding the validity  of Section  7  of the Delhi Laws Act, 1912, Section  2  of  the Ajmer-Merwara  (Extension of Laws) Act, 1947, and Section  2 of  the  Part  C States (Laws) Act, 1950, and  of  the  Acts extended  to  the Provinces of Delhi and  Ajmer-Merwara  and various Part C States under the said sections  respectively, and  of  the orders and other instruments issued  under  the Acts so extended:    "AND WHEREAS the validity of Section 7 of the Delhi  Laws Act, 1912, and section 2 of the Ajmer-Merwara (Extension  of Laws)  Act, 1947, and of the Acts extended by virtue of  the powers conferred by the said sections has been challenged in some cases pending at present before the Punjab High  Court,

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the  Court  of the Judicial Commissioner of Ajmer,  and  the District Court and the Subordinate Courts in Delhi;       "AND WHEREAS, in view of what is hereinbefore  stated, it  appears to me that the following questions of law  have. arisen and are of such nature and of such public  importance that  it is expedient that the opinion of the Supreme  Court of India should be obtained thereon;     Now, THEREFORE,  in  exercise of the  powers conferred upon me by clause (1) of article 143 of the Constitution, I, Rajendra  Prasad, President of India, hereby refer the  said questions  to the Supreme Court of India  for  consideration and report thereon, namely :-     "(1)  Was section 7 of the Delhi Laws Act, 1912, or  any of the provisions thereof and in what particular or particu- lars  or  to what extent ultra vires the  Legislature  which passed the said Act ?    "(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, 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 ?    "(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the  provisions thereof and in what particular  or particulars or to what extent ultra vires the Parliament?" 755     Arguments were heard on the 9th, 10th, 11th, 12th, 16th, 17th,  18th,  19th, 20th, 23rd, 24th, 25th, 26th,  27th  and 30th days of April, 1951.     M.C. Setalvad, Attorney-General for India, (G. N. Joshi, with him) for the President of India.     C.K. Daphtary, Advocate-General of Bombay (G. N.  Joshi, with him) for the State of Bombay. (R.  Ganapathy lyer, for the State of Madras. M.L.  Saxena,for the State of Uttar Pradesh. A.R.  Somanatha lyer, Advocate-General of Mysore (R. Ganapathy lyer,  with him) for  the  State of Mysore. P.S. Safeer, for Captain Deep Chand. N.S. Bindra, for Pt. Amarnath Bharadwaj. M.M. Gharakhan, for the Ajmer-Electric Supply Co. Ltd.     N.C. Chatterjee,  (G. C. Mathur,  Basant Chandra  Ghose, and Tilak Raj Bhasin, with him) for the Maidens Hotel. Jessaram Banasingh, for Runglal Nasirabad.     Jyoti  Sarup  Gupta and K.B. Asthana, for the  Municipal Committee, Ajmer.     Din Dayal Kapur, for Shri Munshilal and two others.     1951. May 23. The following judgments were delivered.     KANIA C.J.--This is a reference made by the President of India  under  article  143 of the  Constitution  asking  the Court’s  opinion  on the three questions submitted  for  its consideration  and report.  The three questions are as  fol- lows:-     "(1)  Was section 7 of the Delhi Laws Act, 1912, or  any of the provisions thereof and in what particular or particu- lars  or  to what exent ultra vires  the  Legislature  which passed the said Act ?"     Section 7 of the Delhi Laws Act, mentioned in  question, runs as follows :-- 756      "The Provincial Government may, by notification in  the official gazette, extend with such restrictions and  modifi- cations  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."      "(2)  Was  the Ajmer Merwara (Extension of  Laws)  Act, 1947, or any of the provisions thereof  and in what particu-

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lar or particulars or to what extent ultra vires the  Legis- lature which passed the said Act ?"      Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947,  runs  as  follows:--      ’’Extension  of Enactments to Ajmer-Merwara.--The  Cen- tral  Government  may, by notification in the  official  ga- zette,  extend  to the Province of Ajmer-Merwara  with  such restrictions  and modifications as it thinks fit any  enact- ment which is in force in any other Province at the date  of such notification."      "(3)  Is  section 2 of the Part C  States  (Laws)  Act, 1950, or any of the provisions thereof and in what  particu- lar or particulars or to what extent ultra vires the Parlia- ment ?"      Section  2 of the Part C States (Laws) Act, 1950,  runs as follows :--      "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  amend- ment.  of any corresponding law (other than a  Central  Act) which  is  for  the time being applicable  to  that  Part  C State."      The  three sections referred to in the three  questions are  all in respect of what is described as  the  delegation of.  legislative  power and the three  particular  Acts  are selected to raise the question in respect of the three  main stages in the constitutional development of India. 757 The first covers the legislative powers of the Indian Legis- lature  during the period prior to the Government  of  India Act, 1915. The second is in respect of its legislative power after  the Government of India Act, 1935, as amended by  the Indian Independence Act of 1947. ’The last is in respect  of the power of the Indian Parliament under the present Consti- tution of 1950. It is therefore necessary to have an idea of the  legislative  powers of the  Indian  Legislature  during those three periods. Without going into unnecessary details, it  will  not be out of place to know the  historical  back- ground.  The East India Company first started its operations as a trading company in India and gradually acquired politi- cal influence.  The Crown in England became the  legislative authority  in  respect  of areas which had  come  under  the control  of the East India Company. The Indian Councils  Act of  1861, section 22, gave power to the Governor-General  in Council,  with additional nominated members, to  make  laws. The  constitutional position therefore was that the  British Parliament  was the sovereign body which passed  the  Indian Councils Act. It gave the Governor-General in Council in his legislative  capacity powers to make laws over the  territo- ries in India under the governance of the Crown.  Under  the English Constitution the British Parliament with its  legis- lative  authority in the King and the two Houses of  Parlia- ment  is  supreme and its sovereignty cannot  be  challenged anywhere.  It has no written Charter to define or limit  its power  and authority. Its powers are a result of  convention but are now recognised as completely absolute,  uncontrolled and unfettered. Sir Cecil Cart in his book on English Admin- istrative Law at page 15 observes: "A more basic  difference between  the Constitutions of the United States and  Britain is the notorious fact that Britain has no written  Constitu-

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tion,  no fundamental statute which serves as  a  touchstone for  all other legislation and which cannot be altered  save by.  some specially solemn and dilatory process. In  Britain the  King  in Parliament is all powerful. There  is  no  Act which cannot be passed and will not be valid within 758 the ordinary limits of judicial interpretation  ............ Even Magna Carts is not inviolate  .........  The  efficient secret  of the English Constitution was the close union  and nearly  complete  fusion of the  executive  and  legislative powers.  In other words by the system of Cabinet  Government the   executive   authority   is entrusted  to  a  committee consisting of members of the dominant party in the  legisla- ture and in the country."     In Halsbury’s Laws of England, Vol. VI, Article 429,  it is  further stated that it is for this reason that there  is no  law which the King in Parliament cannot make  or  unmake whether  relating to the Constitution itself  or  otherwise; there  is no necessity as in States whose Constitutions  are drawn up in a fixed and rigid form and contained in  written documents for the existence of a judicial body to  determine whether any particular legislative Act is within the consti- tutional powers of Parliament or not; and laws affecting the Constitution  itself may be enacted with the same  ease  and subject to the same procedure as ordinary laws. In  England, when occasions of conferment of powers on subordinate bodies became  frequent and assumed larger scope,  questions  about the advisability of that procedure were raised and a Commit- tee  on the Minister’s Powers, what is generally   described as  the Donoughmore Committee was appointed.  The  Committee recommended that certain cautions should be observed by  the Parliament  in  the matter of confermen of  such  powers  on subordinate  bodies.  This is natural because of  the  well- recognised doctrine of the English Constitution that Parlia- ment is supreme and absolute and no legislation can  control its powers.     Such  a legislative body which is supreme has thus  cer- tain  principal characteristics. It is improper to  use  the word  "constitutional" in respect of laws passed by  such  a sovereign body.  The question of constitutionality can arise only if there is some touchstone by which the question could be decided.  In respect of a sovereign body like the British Parliament there is no  759 touchstone. They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws.  Such laws are changed by the same body with the  same ease as any other law. What law follows from this is that no court  or authority has any right to pronounce that any  Act of  Parliament  is unconstitutional. In Dicey’s Law  of  the Constitution,  9th Edition, in considering the  Constitution of France,it was observed that the supreme legislative power under the Republic was not vested in the ordinary Parliament of  two  Chambers, but in a National  Assembly  or  Congress composed  of the Chamber of Deputies and the Senate  sitting together. The Constitutions of France which in this  respect were  similar to those of Continental polities exhibited  as compared  with the expansiveness or flexibility  of  English institutions that characteristic which was described by  the author as rigid. A flexible constitution was one under which every  law of every description can legally be changed  with the  same  ease and in the same manner by one and  the  same body.  The flexibility of the British Constitution  consists in  the right of the Crown and the two Houses to  modify  or repeal  any law whatever. They can modify or.repeal  in  the

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same manner in which they can pass an Act enabling a company to  make a new railway from Oxford to London. Therefore,  in England laws are called constitutional because they refer to subjects proposed to affect the fundamental institutions  of the  State and not because they are legally more  sacred  or difficult to change than other laws. Under the circumstances the term "constitutional law or enactment" is rarely applied to any English statute to give a definite description to its character.  Under a rigid  constitution, the  term  "consti- tutional"  means that a particular enactment belongs to  the articles  of the constitution and cannot be legally  changed with the same ease and in the same manner as ordinary  laws, and  it  is because of this characteristic that  courts  are invested  with  powers  to determine  whether  a  particular legislation is permitted or not by the constitution. Such  a question can 760 never  arise  in  respect of an  enactment  of  the  British Parliament.       As against this, the Governor-General in Council  with legislative  powers established under the  Indian   Councils Act  stood  in a different position. Its  charter   was  the Indian  Councils  Act.  Its powers were  there   necessarily defined and limited.  That power, again,   at any time could be  withdrawn, altered and expanded  or  further  curtailed. Moreover,  as  the powers were  conferred by an Act  of  the British parliament, the  question whether the action of  the Governor-General  in Council in his legislative capacity was within or  without its legislative power was always  capable of   being raised and decided by a court of law. In  Dicey’s Law of the Constitution, 9th Edition the author has  distin- guished  the  position  of a sovereign  legislature   and  a subordinate law-making body. The distinction  is drawn  from the  fact that the subordinate legislatures have  a  limited power  of  making  laws. At page  99,  he  has  specifically considered  the  position  of the   legislative  Council  of British  India prior to 1915 and  stated as  follows:--"Laws are made for British India  by a Legislative Council  having very  wide powers of  Legislation.  This Council, or, as  it is technically  expressed, the Governor-General in  Council, can pass  laws as important as any Acts passed by the  Brit- ish   Parliament.  But the authority of the Council  in  the way of law-making is as completely subordinate to,   and  as much dependent upon, Acts of Parliament as is  the power  of the  London and North Western Railway  Company to make  bye- laws  ......  Now observe,  that under these Acts the Indian Council  is in the strictest sense a non-sovereign  legisla- tive  body,  and this independently   of the fact  that  the laws or regulations made by the Governor-General in  Council can  be annulled or disallowed by the Crown; and  note  that the position of the Council exhibits all the marks or  notes of legislative subordination.  (1) The Council is bound by a large number of rules which cannot be changed by the  Indian legislative  body  itself and which can be  changed  by  the superior power of the Imperial parliament. 761 (2) The Acts themselves, from which the Council derives  its authority, cannot be changed by the Council and......   they stand in marked contrast with the laws or regulations  which the  Council is empowered to make. These  fundamental  rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may  legis- late   ......(3) The courts in India  ......  may, when  the occasion  arises, pronounce upon the validity  or  constitu- tionality of laws made by the Indian Council."  It is there-

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fore clear that the Indian Legislature in 1861 and upto 1915 was  a subordinate legislature and not a sovereign  legisla- ture.     At  this stage it may again be noticed that the  Govern- ment was unitary and not federal.  There was no distribution of legislative powers as between the Centre and the  differ- ent Provinces. Another important factor to be borne in  mind is that while the British Parliament was supreme, its execu- tive  Government  came into power and remained in  power  so long  only  as the Parliament allowed it to remain  and  the Parliament itself was not dissolved.  The result is that the executive  government was a part of the legislature and  the legislature controlled the actions of the executive. Indeed, the  legislature  was  thus supreme and was  in  a  position effectively  to direct the actions of the executive  govern- ment.  In India the position was quite different if not  the reverse. The Governor-General was appointed by the Crown and even after the expansion of the legislative body before  the Government  of India Act of 1915 in numbers, it had no  con- trol over the executive.  In respect of the Indian  Legisla- ture  functioning  prior to the Government of India  Act  of 1915  the control from the Secretary of State was  justified on  the ground that the Provincial Legislatures were but  an enlargement  of the executive government for the purpose  of making  laws  and  were no more than  mere  advisory  bodies without any semblance of power. The executive Government  of India was not responsible to the Indian Legislature and  the composition  of  the Indian Legislature was  such  that  the executive officers 762 together with the nominated members constituted the majority in  the  Legislature. The result was  that  the  Legislative Council was practically a creature of the executive  Govern- ment of India and its functions were practically limited  to registering  the  decrees of the  executive  government.  It would  not be wrong, according to Mr. Cowell in his  lecture on  "Courts  and Legislative Authorities in India,"  to  de- scribe  the  laws  made in the Legislative  Councils  as  in reality  the orders of Government. Every Bill passed by  the Governor General’s Council required his assent to become  an Act.   The  Indian  Councils  Act  of  1892  empowered   the Governor-General in Council, with the approval of the Secre- tary  of  State in Council, to make regulations  as  to  the conditions under which nomination of the additional  members should  be made. The word ‘election’ was carefully  avoided. The existence of a strong official block in the Councils was the important feature of the Act. As noticed by a writer  on Indian  Constitution, the Government maintained a tight  and close  control over the conduct of official members  in  the Legislature  and  they  were not allowed  to  vote  as  they pleased.  They  were not expected to ask questions  or  move resolutions  or  (in some Councils) to intervene  in  debate without  Government’s approval. Their main function  was  to vote--to  vote  with the Government.  However  eloquent  the non-official speakers might talk and however reasonable  and weighty  their arguments might be, when the time for  voting came  the silent official flanks stepped in and decided  the matter  against them. All these factors contributed  to  the unreality  of  the proceedings in the  Council  because  the number of elected members was small and the issue was  often known beforehand. Speaking in the. House of Lords in  Decem- ber  1908  on the Bill which resulted in the  Government  of India Act of 1909, Lord Morley, the then Secretary of  State for  India,  declared:  "If I were attempting to  set  up  a Parliamentary  system in India, or if it could be said  that

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this chapter of rules led directly or necessarily up to  the establishment of a Parliamentary system in India. I for  one would have    763 nothing  at  all to do with it  .........   A  Parliamentary system  is  not  at all the goal to which I  would  for  one moment aspire."  The constitution of the Central Legislative Council  under the Regulation of November, 1909, as  revised in 1912, was this: Ordinary members of the Governor Gene- ral’s Council, The Commander-in-Chief and the Lt.-Governor               ...                   8 Nominated members of whom not more than 28 must be officials          ...                   33 Elected members,  ....                                   27        and The Governor-General               ...                   1                                                        -----                                                          69     The  executive government was thus supreme and  was  not bound to obey or carry out the mandates of the  legislature. Instances where Finance Bills were rejected and other  Bills were backed by the popular feeling and which decisions   the Governor-General  overruled,  are  well  known.  The  Indian Legislature  was  powerless to do anything  in  the  matter. Without  the  consent of the executive  government  no  Bill could  be  made into an Act nor an Act could be  amended  or repealed without its consent.  The possibility of the Legis- lature recalling the power given tinder an Act to the execu- tive against the latter’s consent was therefore nil. Once an Act giving such power (like the Delhi Laws Act) was  passed, practically the power was irrevocable. In my opinion, it  is quite  improper  to compare the power and  position  of  the Indian  Legislature so established and functioning with  the supreme and sovereign character of the British Parliament.     The legislative power of the Indian Legislature came  to be changed as a result of the Act of 1915 by the creation of Provincial  legislatures.  I do not propose to go  into  the details  of the changes, except to the extent they  are  di- rectly material for the discussion of the questions  submit- ted for the Court’s opinion, Diarchy 764 was  thus created but there was no federation under the  Act of 1915. Under the Government of India Act, 1935, the legis- lative powers were distributed between the Central  legisla- ture and the Provincial legislature, each being given exclu- sive powers in respect of certain items mentioned in Lists I and II of the Seventh Schedule. List III contained  subjects on which it was open to the Centre or the Province to legis- late  and the residuary power of legislation was  controlled by  section  104. This Act however was still passed  by  the British  Parliament and therefore the powers of  the  Indian Central  legislature as well as the Provincial  legislatures were capable of being altered, expanded or limited according to  the desire of the British Parliament without the  Indian legislature  or the people of India having any voice in  the matter.   Even under this Act, the executive government  was not responsible to the Central Legislature or the Provincial Legislature,  as the case may be.  I emphasize  this  aspect because it shows that there was no fusion of legislative and executive  powers as was the case with the  Constitution  in England.  The result of the Indian Independence  Act,  1947, was  to  remove the authority of the British  Parliament  to make any laws for India. The Indian Central Legislature  was given power to convert itself into a Constituent Assembly to

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frame a Constitution for India, including the power to amend or repeal the Government of India Act, 1935, which till  the new Constitution was adopted, was to be the Constitution  of the  country.  Even with that change it may be noticed  that the executive government was not responsible to the  Central Legislature.  In fact with the removal of the control of the Parliament it ceased to be responsible to anyone.     Under  the Constitution of India as adopted on the  26th of  January, 1950, the executive government of the Union  is vested  in the President acting on the advice of the  Minis- ters.   A Parliament is established to make laws and  a  Su- preme  Court is established with the powers defined in  dif- ferent  articles  of  the  Constitution.   The    executive, legislative  and  judicial  765 functions  of the Government, which have to  be  discharged, were thus distributed but the articles giving power to these bodies  do  not vest the legislative or judicial  powers  in these bodies expressly. Under the Constitution of India, the Ministers  are responsible to the legislatures and  to  that extent  the scheme of the British Parliament is  adopted  in the  Constitution. While however that characteristic of  the British  Parliament is given to the Indian Legislature,  the principal point of distinction  between the British  Parlia- ment and the Indian Parliament remains and that is that  the Indian  Parliament  is the creature of the  Constitution  of India  and  its powers, rights, privileges  and  obligations have  to be found in the relevant articles of the  Constitu- tion  of  India.  It is not a sovereign  body,  uncontrolled with  unlimited powers.  The Constitution of India has  con- ferred  on  the  Indian Parliament powers to  make  laws  in respect  of matters specified in the appropriate places  and Schedules, and curtailed its rights and powers under certain other  articles and in particular by the articles  found  in Chapter  111  dealing with Fundamental Rights.  In  case  of emergency  where  the  safety of the Union of  India  is  in danger, the President is given express power to suspend  the Constitution  and assume all legislative powers.  Similarly. in  the  event of the breaking.down  of  the  administrative machinery  of a State, the President is given  powers  under article 257 to assume both legislative and executive  powers in the manner and to the extent found in the article.  There can  be no doubt that subject to all these  limitations  and controls, within the scope of its powers and on the subjects on  which  it is empowered to make law% the  Legislature  is supreme and its powers are plenary.     The  important question underlying the  three  questions submitted for the Court’s consideration is what is described as the delegation of legislative powers. A legislative  body which is sovereign like an autocratic ruler has power to  do anything.  It may, like a Ruler, by an individual  decision, direct  that a certain person may be put to death or a  cer- tain property may be 766 taken over by the State.  A body of such character may  have power  to nominate someone who can exercise all  its  powers and  make  all its decisions.  This is possible to  be  done because there is no authority or tribunal which can question the right or power of the authority to do so.     The  contentions  urged on behalf of  the  President  of India are that legislative power carries with it a power  of delegation  to  any  person the legislature  may  choose  to appoint.  Whether 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 of

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a subject or matter which is within the scope of the  legis- lative  power  of the body making the delegation.  (2)  Such power  of delegation is not negatived by the  instrument  by which  the legislative body is created or established.   And (3)  it does not create another legislative body having  the same  powers  and to discharge the same functions  which  it itself has, if the creation of such a body is prohibited  by the  instrument which establishes the legislative  body  it- self. It was urged that in the ease of an unwritten  consti- tution, like the British Parliament there  can De no affirm- ative limitation or negative prohibition against  delegation and  therefore  the power of delegation is included  to  the fullest extent within the power of legislation. The  British Parliament can efface itself or even abdicate because it has a  power to pass the next day a law repealing  or  annulling the previous day’s legislation.  When the British Parliament established legislative bodies in India, Canada and  Austra- lia  by Acts of the British Parliament, the legislatures  so established, although in a sense subordinate, because  their existence depended on the Acts of the British Parliament and which  existence  could  be  terminated  or   further   let- tered  by  an  Act  of  the  British  Parliament,  neverthe- less  are supreme with plenary powers of the same nature  as the British  Parliament, on the subjects and matters  within their  respective  legislative authority.  As the  power  of delegation is 767 included  in  the power of  legislation,  these  legislative bodies have also, subject to the three limitations mentioned above, full power of delegation in their turn. These  legis- lative  bodies  were not agents of the  British  Parliament. Not being agents or delegates of the British Parliament, the doctrine delegata potestas non potest delegare cannot  apply to  their actions and if these legislatures delegate  powers to  some  other authority to make rules or  regulations,  or authorise  the executive government to enforce laws made  by them  or  other legislatures wholly or in part and  with  or without restrictions or modifications, the legislatures  are perfectly competent to do so. The history of legislation  in England  and  India and the other  Dominions  supports  this contention.  It is recognised as a legislative practice  and is  seen in several Acts passed by the legislatures  of  the Dominions and in India.  Such delegation of the  legislative functions has been recognised over a series of years by  the Judicial  Committee of the Privy Council and it is too  late to  contest the validity of such delegation.  It was  lastly contended  that  the observations of the  Federal  Court  in Jatindra Nath Gupta v. Province of Bihar(1), tending to show that  delegation was not permissible, required to be  recon- sidered.     Before considering these arguments in detail, I think it is  essential to appreciate clearly what is conveyed by  the word "delegation’’. That word is not used, either in discus- sions or even in some decisions of the courts, with the same meaning.   When  a  legislative body passes an  Act  it  has exercised  its legislative function. The essentials of  such function are the determination of the legislative policy and its formulation as a rule of conduct.  These essentials  are the  characteristics  of a legislature by  itself.   It  has nothing to do with the principle of division of powers found in  the Constitution of the United States of America.  Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, (1) [1949] F.C.R. 595.

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768 it  ordains that its statutory command is to  be  effective. The legislature having thus made its laws, it is clear  that every detail for working it out and for carrying  the enact- ments into operation and effect may be done by the  legisla- ture or may be left to another subordinate agency or to some executive  officer.  While this also is sometimes  described as  a  delegation of legislative powers, in  essence  it  is different from delegation of legislative power which means a determination  of the legislative policy and formulation  of the same as a rule of conduct. I find that the word "delega- tion"  is quite often used without bearing this  fundamental distinction  in mind. While the so-called delegation,  which empowers  the  making  of rules and  regulations,  has  been recognised  as ancillary to the power to define  legislative policy  and  formulate the rule of  conduct,  the  important question raised by the Attorney-General is in respect of the right  of the legislature to delegate the legislative  func- tions strictly so called.     In support of his contention that the legislative  power of  the  Indian  Legislature carried with it  the  power  of delegation, the Attorney-General relied on several decisions of the Judicial Committee of the Privy Council and decisions of the Supreme Court of Canada and Australia.  The first  is The  Queen v. Burah(1). Act XXII of 1869 of the  Council  of the  Governor General of India for making laws  and  regula- tions was an Act to remove the Garo Hills from the jurisdic- tion of the tribunals established under the General  Regula- tions  and Acts passed by any legislature in  British  India and provided that "no Act hereafter passed by the Council of the  Governor-General for making laws and regulations  shall be deemed to extend to any part of the said territory unless the same was specifically named therein." The administration of civil and criminal justice within the said territory  was vested in such officers  as the Lieutenant-Governor may from time  to  time  appoint. Sections 8 and 9 of  the  said  Act provided as follows :-- (1) 51. A. 178, 769     "Section  8. The said Lieutenant-Governor may from  time to time, by notification in the Calcutta Gazette, extend  to the  said territory any law, or any portion of any law,  now in force in the other territories subject to his Government, or  which  may hereafter be enacted by the  Council  of  the Governor-General  ,or of the said  Lieutenant-Governor.  for making  laws and regulations, and may on making such  exten- sion  direct  by whom any powers of duties incident  to  the provisions so extended shall be exercised or performed,  and make  any order which he shall deem requisite  for  carrying such provisions into operation."     "Section 9.  The said Lieutenant-Governor may from  time to  time,  by notification in the Calcutta  Gazette,  extend mutatis  mutandis all or any of the provisions contained  in the  other  sections of this Act to the Jaintia  Hills,  the Nags  Hills, and to such portion of the Khasi Hills  as  for the time being forms part of British India.     Every such notification shall specify the boundaries  of the territories to which it applies."     The Lieutenant-Governor of Bengal issued a  notification in  exercise of the power conferred on him by section 9  and extended  the  provisions of the said Act to  the  territory known as the Khasi and Jaintia Hills and excluded  therefrom the jurisdiction of the ordinary civil and criminal  courts. By a majority judgment the Calcutta High Court decided  that the said notification had no legal force or effect.  In  the

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Calcutta  High  Court, Mr. Kennedy, counsel for  the  Crown, boldly claimed for the Indian Legislative Council the  power to transfer legislative functions to the Lieutenant-Governor of Bengal and Markby J. framed the question for decision  as follows:   "Can  the Legislature confer on  the  Lieutenant- Governor legislative power?" Answer: "It is a general  prin- ciple  of  law in India that any substantial  delegation  of legislative authority by the Legislature of this country  is void."     Lord  Selbourne after agreeing with the High Court  that Act XXII of 1869 was within the legislative 770 power  of  the Governor-General in Council,  considered  the limited question whether consistently with that view the 9th section  of that Act ought nevertheless to be held void  and of  no effect.  The Board noticed that the majority  of  the Judges  of the Calcutta High Court based their  decision  on the view that the 9th section was not legislation but was  a delegation  of legislative power.  They noticed that in  the leading  judgment  Markby  J. the principle  of  agency  was relied upon and the Indian Legislature seemed to be regarded an agent delegate, acting under a man.date from the Imperial Parliament.  They  rejected this view.  They observed:  "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.  The  established  courts  of justice,  when  a  question arises  whether  the  prescribed limits have been exceeded, must of necessity determine  that question;  and the only way in which they. can properly  do. so,  is by looking to the terms of the instrument by  which, affirmatively,  the legislative powers were created, and  by which,  negatively,  they are restricted. If what  has  been done is legislation, within the general scope of the affirm- ative  words  which give the power, and if  it  violates  no express  condition  or restriction by which  that  power  is limited   ......   it  is not for any court  of  justice  to inquire  further, or to enlarge constructively those  condi- tions and restrictions.     "Their  Lordships  agree that  the  Governor-General  in Council  could  not, by any form  of  enactment,  create  in India  and  arm  with general legislative authority,  a  new legislative power not created or authorised by the  Councils Act.  Nothing of that kind has, in their Lordships  opinion, been  done or attempted in the present case.  What has  been done  is this. The Governor-General in Council  has   deter- mined in the  771 due and ordinary course of legislation, to remove a particu- lar  district from the jurisdiction of the  ordinary  courts and  offices, and to place it under new courts and  offices, to be appointed by and responsible to the Lieut.-Governor of Bengal; leaving it to the Lieut.Governor 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 public notification to that  district  any law,  or  part of a law, which either already was,  or  from time  to  time might  be, in  force  by  proper  legislative authority,  in the  other territories  subject to  his  gov- ernment.  The   legislature  determined  that,  so  far,   a certain  change  should take place;  but that it was expedi-

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ent  to leave the time  and the manner of carrying  it  into effect  to the discretion of the Lieut.-Governor; and  also, that  the laws which were 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 not 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  Lieut.-Governor.  This having been done as  to  the Garo Hills, what was done as to the Khasi and. Jaintia Hills ?  The legislature decided that it was fit and  proper  that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing courts and  brought  under  the  same  provisions  with  the   Garo Hills  ......  if and when the Lieut.-Governor should  think it desirable to do so; and that it was also possible that it might  be  expedient that not all, but some only,  of  those provisions should be applied to that adjoining district; and accordingly  the  legislature entrusted for  these  purposes also a discretionary power to the Lieut.-Governor."     The important part of the decision, dealing with the the question before them was in these terms :--"Their  Lordships think that it is a fallacy to speak of the 772 powers  thus  conferred upon the Lieut.-Governor  (large  as they  undoubtedly are) as if, when they were  exercised  the efficacy  of  the acts done under them would be due  to  any other legislative authority than that of the Governor-Gener- al in Council.  Their whole operation is directly and  imme- diately  under and by virtue of this Act (XXI of  1869)  it- self.  The proper legislature has exercised its judgment  as to  place, person, laws powers and the result of that  judg- ment  has  been to legislate conditionally as to  all  these things.  The conditions having been fulfilled, the  legisla- tion  is now absolute. Where 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 condition- ally.  Legislation,  conditional on the  use  of  particular powers, or on the exercise of a limited discretion, entrust- ed  by the legislature to persons in whom it  places  confi- dence,  is no uncommon thing;and, in many circumstances,  it may  be highly convenient. The British Statute Book  abounds with  examples  of it: and it cannot be  supposed  that  the Imperial  Parliament did not, when constituting  the  Indian Legislature,  contemplate this kind of conditional  legisla- tion as within the scope of the legislative powers which  is from time to time conferred.  It certainly used no words  to exclude it."  (The italics are mine). They then mentioned by way of illustrations the power given to the Governor-General in  Council (not in his legislative capacity) to extend  the Code  of Civil Procedure and Code of Criminal  Procedure  by section 385, Civil Procedure Code. and section 445, Criminal Procedure  Code, to different territories. They held that  a different conclusion will be casting doubt upon the validity of a long series of legislation, appropriate, as far as they can  judge,  to the peculiar circumstances of  India;  great part  of which belongs to the period antecedent to the  year 1861,  and must therefore be presumed to have been known  to and in the view of, the Imperial Parliament, when the  Coun- cils  Act  of that year was passed.  For  such  doubt  their Lordships were unable 773 to  discover any foundation either in the affirmative or  in the negative words of the Act before them.

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   I  have  quoted in extenso extracts from  this  judgment because  it  is considered the foundation for  the  argument advanced by the learned Attorney-General. In my opinion this judgment  does  not support the contention  as  urged.   The Privy  Council noted the following:(1) That the  Garo  Hills were  removed by the Act from the jurisdiction of the  ordi- nary  courts. (2) That in respect of the Khasi  and  Jaintia Hills  the same position had been arrived at. (:3) That  the power was to be exercised over areas which,  notwithstanding the  Act, remained under the administrative control  of  the Lieut.-Governor.  (4)  That  the  authority  given  to   the Lieut.-Governor was not to pass new laws but only to  extend Acts which were passed by the Lieut.Governor. or the  Gover- nor-General in respect of the Province both being  competent legislatures for the area in question.  He was not given any power to modify any law.  (5) They rejected the view of  the majority  of the Judges of the Calcutta High Court that  the Indian Legislature was a delegate or an agent of the British Parliament.  (6)  That within the powers  conferred  on  the Indian  Legislature  it was supreme and its powers  were  as plenary  and of the same nature as the  British  Parliament. (7)  That by the legislation the Indian Parliament  had  not created a legislative body with all the powers which it had. (8)  The objection on the ground of delegation was  rejected because  what was done was not delegation at all but it  was conditional  legislation.   Throughout the  judgment  it  is nowhere suggested that the answer of Markby J. to the  ques- tion framed by him (and quoted earlier in this judgment) was incorrect.   (9) It emphasized that the order of the  Lieut- Governor derived its sanction from the Act of the  Governor- General and not because it was an order of the Lieut.-Gover- nor.  (10) That in the legislation of the   Governor-General in  Council (legislative) all that was necessary to  consti- tute legislation was found.  This applied equally to  future laws as the appropriate legislative body for the area was 774 the same.  This decision therefore carefully and deliberate- ly did not endorse the contention that the power of  delega- tion  was contained in the power of legislation.  The  Board after affirming that what was done was no delegation at  all held that the legislation was only conditional legislation.     In  Emperor  v. Benoari Lal Sarma and  others  (1),  the question  arose about the Special Criminal Courts  Ordinance 1I of 1942, issued by the Governor-General under the  powers vested  in  him on the declaration of an  emergency  on  the outbreak  of war. The validity  of that Ordinance was  chal- lenged  in  India  either (1) because the  language  of  the section  showed that the  Governor-General,  notwithstanding the  preamble, did not consider that an  emergency   existed but was making provision in case one should arise in future, or (2) else because the section amounted to what was  called delegated legislation by which the Governor General  without legal authority sought to pass the decision as to whether an emergency  existed, to the Provincial Government instead  of deciding  it  for  himself. The relevant  provision  of  the Government of India Act, 1935, was in these terms:     "72.   The Governor-General may, in cases of  emergency, make  and promulgate ordinances for the peace and good  gov- ernment of British India or any part thereof, and any  Ordi- nance  so  made  shall for the space of not  more  than  six months from its promulgation, have the like force of law  as an  Act  passed by the Indian Legislature;but the  power  of making Ordinances under this section is subject to the  like restrictions as the power of the Indian Legislature to  make laws;  and any Ordinance made under this section is  subject

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to  the  like disallowance as an Act passed  by  the  Indian Legislature and may be controlled or superseded by any  such Act."      In  rejecting  this second objection,  their  Lordships observed  that under paragraph 72 of Schedule 9, the  Gover- nor-General himself must discharge the duty of (I) 72 I.A. 27.    775 legislation and cannot transfer it to other authorities. But the  Governor-General  had  not  delegated  his  legislative powers  at all.  After stating again that what was done  was not delegated legislation at all, but was. merely an example of  the  not uncommon legislative arrangement by  which  the local  application of the provision of a statute  is  deter- mined  by the judgment of a local administrative body as  to its  necessity, their Lordships disagreed with the  majority view of the Federal Court that what was done was  delegation of  legislative functions.  If the power of  delegation  was contained  in the power of legislation as wide as  contended by  the  Attorney-General, there appears no reason  why  the Privy Council should have rejected the argument that the Act was  an  act of delegation and upheld its  validity  on  the ground  that it was conditional legislation.  Moreover  they reaffirmed  the following passage from Russell v. The  Queen (1): "The short answer to this objection (against delegation of legislative power) is that the Act does not delegate  any legislative  powers whatever. It contains within itself  the whole  legislation on the matters with which it  deals.  The provision  that  certain parts of the Act  shall  come  into operation only on the petition of a majority  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 of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate  cannot be  denied to the Parliament of Canada when the  subject  of legislation is  within  its  competency."  (The italics  are mine).  Support for this last mentioned statement was  found in  the  decision  of  the Privy Council  in  The  Queen  v. Burah(2).  It is clear that this decision does not carry the matter  further.   Even though this was a  war  measure  the Board  emphasized  that the  Governor-General  must  himself discharge the duty of legislation and cannot transfer it  to other authorities.  They examined the impugned Act and (1) 7 App. Cas. 629. (2) 5 I.A. 178. 776 came  to the conclusion that it contained within itself  the whole  legislation  on the matters with which it  dealt  and there was no delegation of legislative functions.     A close scrutiny of these decisions and the observations contained  therein,  in my opinion, clearly  discloses  that instead   of  supporting  the  proposition  urged   by   the Attorney-General  impliedly  that contention  is  negatived. While the Judicial Committee has pointed out chat the Indian Legislature had plenary powers to legislate on the  subjects falling within its powers and that those powers were of  the same nature and as supreme  as the British Parliament,  they do  not 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. When the argument  of  the power  of  the Indian Legislature  to  delegate  legislative powers  in  that manner to subordinate bodies  was  directly urged  before the Privy Council, in each one of their  deci-

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sions  the Judicial Committee has repudiated the  suggestion and  held  that  what was done was not  delegation  but  was subsidiary  legislation  or  conditional  legislation.  Thus while the Board has reiterated its views that the powers  of the  Indian  Legislature were "as plenary and  of  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 power  of  delegation  (as contended in this case) and which would have been a  direct, plain,  obvious  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. The  same attitude  is adopted by the Privy Council in respect of  the Canadian  Constitution.  The  expressions  "subsidiary"   or "conditional  legislation"  are used to  indicate  that  the powers  conferred on the subordinate bodies were not  powers of legislation but powers conferred only to carry the enact- ment  into  operation and effect, or  that  the  Legislature having  discharged legislative functions had  specified  the basic conclusions of fact upon     777 ascertainment  of which, from relevant data by a  designated administrative agency, that body was permitted to bring  the statute  into  operation. Even in such cases the  Board  has expressly pointed out that the force of. these rules,  regu- lations or enactments does not arise out of the decision  of the  administrative  or executive authority  to  bring  into operation   the  enactment or the rules  framed  thereunder. The authoritative force and binding nature of the  same  are found  in  the enactment passed by the  legislature  itself. Therefore,  a  correct reading of these decisions  does  not support the contention urged by the Attorney-General.     Some  decisions of the Privy Council on appeal from  the Supreme  Court of Canada and some decisions of  the  Supreme Court of Canada, on the point under discussion, on which the learned  Attorney-General relied for his contention, may  be noticed next.  In Hodge v. The Queen(1), which was an appeal from the Court of Appeal, Ontario, Canada, a question  about the validity of the Liquor Licences Act arose.  After  hold- ing  that the temperance laws were under section 92  of  the British  North America Act for "the good government",  their Lordships considered the objection that the Imperial Parlia- ment had conferred no authority on the local legislature  to delegate  those  powers to the  Licence  Commissioners.   In other  words, it was argued that the power conferred by  the Imperial  Parliament  on  the local  legislature  should  be exercised  in full by that body and by that body alone.  The maxim delegata potestas non potest delegare was relied  upon to  support  the objection. Their Lordships  observed:  "The objection  thus raised by the appellants was founded  on  an entire  misconception of the true character and position  of the Provincial Legislatures. They are in no sense  delegates of,  or acting under mandate from, the Imperial  Parliament. When the British North America Act enacted that there should be a legislature for Ontario and that its Legislative Assem- bly  should  have exclusive authority to make laws  for  the Province  and  for Provincial purposes in  relation  to  the matters (1) 9 App. Cas.117. 778 enumerated  in section 92, it conferred powers, not  in  any sense  to be exercised by delegation from, or as agents  of, the  Imperial  Parliament, but authority as plenary  and  as ample  within  the limits prescribed by section  92  as  the

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Imperial Parliament in the plenitude of its power  possessed and could bestow.  Within these limits of subjects and  area the local legislature is supreme and has the same  authority as the Imperial Parliament, or the Parliament of the  Domin- ion, would have had under like circumstances to confide to a municipal institution or body of its own creation  authority to make byelaws or resolutions as to subjects specified  the enactment,  and  with the object of carrying  the  enactment into operation and effect.     It  is  obvious  that such  authority  is  ancillary  to legislation’ and without it an attempt to provide for  vary- ing  details  and machinery to carry them out  might  become oppressive or absolutely fail  ......  It was argued at  the Bar  that a legislature committing important regulations  to agents  or  delegates effaces itself.  That is  not  so.  It retains  its power intact and can whenever. it  pleases  de- stroy  the agency it has created and set up another or  take the  matter  directly into its own hands. How far  it  shall seek  the aid of subordinate agencies and how long it  shall continue  them are matters for the legislature and  not  for the  courts  of law to decide." (The italics are  mine.)  As regards  the creation of new offences, their  Lordships  ob- served  that  if byelaws or resolutions  are  warranted  the power to enforce them seemed necessary and equally lawful.     This  case also does not help the  Attorney-General.  It recognises only the grant of power to make regulations which are "ancillary to legislation".     In  In re The Initiative and Referendum Act(1), the  Act of the Legislative Assembly of Manitoba was held outside the scope  of section 92 of the British North America Act  inas- much as it rendered the Lieut-Governor powerless to  prevent the Act from becoming actual law, if approved by the voters, even without his consent. Their Lordships observed: "Section 92 of the (1) [1919] A.C. 935.   779 Act of 1867 entrusts the legislative power in a Province  to its  legislature  and to that legislature only. No  doubt  a body with power of legislation on the subjects entrusted  to it.so  ample as that enjoyed by a Provincial Legislature  in Canada could, while preserving its own capacity intact, seek the  assistance of subordinate agencies as had been done  in Hodge  v. The Queen(1), but it does not follow that  it  can create  and  endow with its own capacity a  new  legislative power not created by the Act to which it owes its own exist- ence."     In  In re George Edwin Gray(2), the question of  delega- tion  of powers in respect of the War Measures Act,  19  14, came  for  consideration.  The provisions  there  were  very similar  to  the  Defence of India Act and  the  Rules  made thereunder  in India during the World War I.  In  delivering judgment Sir Charles Fitzpatrick C.J. observed as follows: - "The  practice of authorising administrative bodies to  make regulations  to  carry out the object of an Act  instead  of setting out all the details of the Act itself is well  known and its legality is unquestioned.’’ He rejected the argument that such power cannot be granted to the extent as to enable the  express  provisions of a statute to be amended  or  re- pealed,  as under the Constitution, Parliament alone  is  to make laws under the Canadian Constitution.  He observed that Parliament  cannot indeed abdicate its function  but  within reasonable limits at any rate it can delegate its powers  to the  executive government. Such powers must  necessarily  be subject  to  determination  at any time  by  Parliament.  He observed: "I cannot however find anything in that  Constitu-

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tional Act which would impose any limitation on the authori- ty of the Parliament of Canada to which the Imperial Parlia- ment is not subject."  Against the objection that such  wide discretion  should not be left to the executive he  observed that this objection should have been urged when the  regula- tions  were  submitted  to Parliament for  its  approval  or better still when the War Measures Act was being  discussed. The  Parliament was the delegating authority and it was  for that  body  to put any (1) 9 App. Cas. 117. (2) 57 S.C.R. Canada 150. 780 limitations  on the powers conferred upon the executive.  He then stated: "Our legislators were no doubt impressed in the hour  of  peril with the conviction that the safety  of  the country  was the supreme law against which no other law  can prevail.  It  is clearly our duty to give  effect  to  their patriotic intentions."     In the Chemical Reference case(D, Duff C.J. set out  the true effect of the decision in the War Measures Act. He held that the decision of the Privy Council in the Fort  Frances’ case(2) had decided the validity of the War Measures Act and no further question remained in that respect. He stated: "In In  re  Gray(3) was involved the principle,  which  must  be taken in this Court to be settled, that an  Order-in-Council in  conformity  with the conditions prescribed by,  and  the provisions  of, the War Measures Act may have the effect  of an Act of Parliament."  The Court considered that the  regu- lations  framed by the Governor-General in Council to  safe- guard  the supreme  interests of the State were made by  the Governor-General in Council "who was  conferred  subordinate legislative   authority."  He stated: "The judgment  of  the Privy  Council in the Fort Frances’ case(2), laid  down  the principle  that in an emergency, such as war, the  authority of  the Dominion in respect of legislation relating  to  the peace,  order and good government of Canada may, in view  of the  necessities  arising  from the  emergency,  disable  or over-bear  the authority of the Provinces in relation  to  a vast  field  in  which the Provinces  would  otherwise  have exclusive  jurisdiction.  It must not however be  taken  for granted  that  every matter within the jurisdiction  of  the Parliament of Canada even in ordinary times could be validly committed  by  Parliament to the executive  for  legislative action  in  the case of an emergency."   Unlike  the  Indian Constitution,  in the British North America Act there is  no power to suspend the Constitution or enlarge the legislative powers  in  an  emergency like  war.  The  Courts  therefore stretched the langugage of the sections to meet the emergen- cy in (1) [1943] S.C.R. Canada 1. (3) [1918] 57 S.C.R, Canada 150. (2) [1923] A.C. 695. 781 the  highest interest of the country but it also  emphasized that such action was not permissible in ordinary times.     The  War  Measures Acts were thus considered  by  the  z Supreme Court of Canada on a different footing. The question was of competence but owing to the unusual circumstances and exigencies what was stated in the legislation was considered a  sufficient statement of the legislative policy.   It  ap- pears to be thought that the same test cannot be applied  in respect of legislation made in normal times, in respect of a permanent  statute  which is not of limited  duration.   The discussion in Benaori Lal Sarma’s case(1) in the judgment of the  Privy Council mentioned above may be usefully noted  in

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this  connection as the legislation in that case was also  a war  measure but was held valid as conditional  legislation. In  so far as the observations in the Canadian decisions  go beyond  what  is held in the Privy Council  decisions,  with respect,  I  am unable to agree.  It appears that  the  word "delegation"  has  been given an extended  meaning  in  some observations of the Canadian courts, beyond what is found in the Privy Council decisions. It is important to notice  that in all the judgments of the Privy Council, the word "delega- tion" as meaning conferment of_legislative functions strict- ly,  is not used at all in respect of the impugned  legisla- tion  and  has been  deliberately avoided.   Their  validity was  upheld  on the ground that the legislation  was  either conditional or subsidiary or ancillary legislation.     An important decision of the Supreme Court of  Australia may be noticed next. In the Victorian Stevedoring and Gener- al  Contracting Company Proprietary Ltd. v.  Dignan(2),  the question whether delegation of legislative power was accord- ing  to  the Constitution came to be examined  by  the  High Court of Australia. It was argued that section 3 of the  Act in  question was ultra vires and void in so far as  it  pur- ported to authorise the Governor-General to make regulations which  (nothwithstanding  anything in any other  Act)  shall have (1) 72 I.A. 27.         (2) 46 Com. L.R. 73. 782 the  force of law. In the judgment of Gavan Duffy  C.J.  and Starke J. it was stated: "The attack upon the Act itself was based  upon  the American Constitutional  doctrine  that  no legislative  body can delegate to another department of  the Government or to any other authority the power either gener- ally  or specially to enact laws. This high prerogative  has been  entrusted to its own wisdom, judgment  and  patriotism and  not  to those of other persons and it  will  act  ultra vires  ii  it undertakes to delegate the  trust  instead  of executing  it. (Cooley’s Principles of  Constitutional  Law, 3rd Edition, p. 111). Roche v. Kronheimer(1) was an authori- ty  for  the proposition that an  authority  of  subordinate law-making  may be invested in the executive. Whatever  ,may be  said for or against that decision I think we should  not now depart from it." Mr. Justice Dixon considered the  argu- ment  fully in these terms: "The validity of this  provision is  now  attacked upon the ground that it is an  attempt  to grant  to the executive a portion of the  legislative  power vested by the Constitution in the Parliament which is incon- sistent  with the distribution made by the  Constitution  of legislative,  executive and judicial powers.  In support  of the  rule that Congress cannot invest another organ of  gov- ernment  with legislative power a second doctrine is  relied upon in America but it has no application to the  Australian Constitution.  Because the powers of Government are  consid- ered  to be derived from the authority of the people of  the Union no agency to whom the people have confided a power may delegate its exercise. The well-known maxim delegata potesta non  potest delegare applicable to the law of agency in  the general and Common Law is well understood and has had  wider application  in  the construction of our Federal  and  State Constitutions  than it has in private laws. No similar  doc- trine  has existed in respect of British  Colonial  legisla- tures,  whether  erected  in virtue the  prerogative  or  by Imperial Statute...It is important to observe that in Ameri- ca  the intrusion of the doctrines of agency into  Constitu- tional interpretation (1) (1921) 29 Corn. L.R. 329.  783

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has  in no way obscured the operation of the  separation  of powers.  In the opinion of the Judicial Committee a  general power of legislation belonging to a legislature  constituted under  a rigid Constitution does not enable  it by any  form of  enactment  to create and arm  with  general  legislative authority a new legislative power not created or  authorized by  the instrument by which it is established."  In  respect of  the legislation passed during the emergency of  war  and where the power was strongly relied upon, Dixon J. observed: "It  might be considered that the exigencies which  must  be dealt with under the defence power are so many, so great and so  urgent and are so much the proper concern of the  execu- tive  that from its very nature the power appears by  neces- sary intendment to authorise a delegation otherwise general- ly  forbidden  to the legislature ............  I  think  it certain that such a provision would be supported in  America and  the passage in Burah’s case appears to apply to  it  in which  the Judicial Committee deny that in fact any  delega- tion there took place  ............  This does not mean that a law confiding authority to the executive will be followed, however extensive or vague the subject-matter may be, if  it does  not fall outside the boundaries of federal power.  Nor does  it mean that the distribution of powers can supply  no considerations       or      weight      affecting       the validity    ............   It may be  acknowledged  that  the manner in which the Constitution accomplishes the separation of  power itself logically and theoretically makes the  Par- liament the executive repository of the legislative power of the  Commonwealth. The existence in Parliament of  power  to authorise   subordinate  legislation may be  ascribed  to  a conception of that legislative power which depends less upon juristic  analysis  and perhaps more upon  the  history  and usages  of British legislation and the theories  of  English law   .........  Such subordinate legislation remains  under Parliamentary control and is lacking in the independent  and unqualified authority which is an attribute of true legisla- tive  power."  He concludes: " But whatever it  may  be,  we should now adhere to the interpretation 784 which results from the decision of Roche v. Kronheimer(1).     This  whole  discussion  shows that  the  learned  Judge 12,was refuting the argument that because under the  Consti- tution  of U.S.A. such conferment of power would be  invalid it  should be held invalid under the  Canadian  Constitution also. He was not dealing with the question raised before us. Ultimately  he said that Roche v. Kronheimer(1) was  conclu- sive.      Mr.  Justice  Evatt  stated that in  dealing  with  the doctrine  of  the-separation of  legislative  and  executive powers  "it must be remembered that underlying  the  Common- wealth  frame  of  government  there is the  notion  of  the British  system  of  an executive which  is  responsible  to Parliament.   That  system  is not in  operation  under  the United  States’  Constitution.  He  formulated   the  larger proposition that every grant by the Commonwealth  Parliament of  authority  to make rules and  regulations,  whether  the grantee is the executive government or some such  authority, is itself a grant of legislative power. The true nature  and quality of the legislative power of the Commonwealth Parlia- ment involves as a part of its content power to confer  law- making powers upon authorities other than Parliament itself. If  such  power to issue binding commands  may  lawfully  be granted by Parliament to the executive or other agencies  an increase in the extent of such power cannot of itself inval- idate  the grant.  It is true that the extent of  the  power

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granted  will often be a very material circumstance  in  the examination  of the validity of the  legislation  conferring the  grant."   In this paragraph the learned  Judge  appears certainly to have gone much beyond what had been held in any previous decision but he seems to have made the observations in those terms because (as he himself had stated just previ- ously) in his view every conferment of power--whether it was by  conditional legislation or ancillary legislation--was  a delegation  of legislative power.  He concluded  however  as follows:"On final analysis therefore the (1) (1921) 29 Corn. L.R. 329.   785 Parliament of the Commonwealth is not competent to  abdicate its  powers of legislation.  This is not because  Parliament is bound to perform any or all of its legislative powers  or functions for it may elect not to do so and not because  the doctrine  of  the separation of powers  prevents  Parliament from  granting  authority to other bodies to  make  laws  or byelaws  and thereby exercise legislative power for it  does so in almost every statute but because each and every one of the laws passed by Parliament must answer the description of law  upon one or more of the subject-matters stated  in  the Constitution.   A  law  by which Parliament  gives  all  its lawmaking  authority  to another body would  be  bad  merely because it would fail to pass the test last  mentioned."Read properly,  these  judgments   therefore do not  support  the contention  of the  learned Attorney General.     The decisions of the Privy Council on appeal from Canada do  not carry the  matter further.  In the judgments of  the two  decisions of the Supreme Court of Canada and the  deci- sion  of the Supreme Court of Australia there  are  observa- tions  which  may appear to go beyond  the  limit  mentioned above.  These observations have to be read in the  light  of the  facts  of  the case and the  particular  regulation  or enactment  before  the court in each case.  These  decisions also  uniformly reiterate that the legislature must  perform its functions and cannot leave that to any other  authority. Moreover the word "delegation" as stated by Evatt J. in  his judgment  is  understood  by some Judges to  cover  what  is described  as  subsidiary or conditional  legislation  also. Therefore because at some places in these judgments the word "delegation"  is used it need not be assumed that  the  word necessarily  means delegation of legislative  functions,  as understood  in  the  strict sense of the  word.  The  actual decisions  were  on the ground that  they  were  subordinate legislation  or conditional legislation.  Again, in  respect of the Constitutions of the Dominions of Canada and  Austra- lia  I may observe that the legislatures of those  Dominions were not packed, as in India, and their Constitution was 786 on  democratic  lines.  The principle of  fusion  of  powers between the Legislature and Executive can well be considered in operation in those Dominions, while as I have pointed out above  there was no such fusion at all so far as the  Indian Constitution  in force till 1935 was concerned.  Conclusions therefore  based on the fusion of legislative and  executive powers  are not properly applicable to the Indian  Constitu- tion.   In my opinion therefore to the extent  the  observa- tions  in  the Canadian and Australian decisions  go  beyond what  is clearly decided by the Privy Council in respect  of the  Indian Legislature, they do not furnish a useful  guide to  determine the powers of the Indian Legislature to  dele- gate  legislative functions to administrative  or  executive authorities.     The Canadian and Australian Constitutions are both based

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on  Acts of the British Parliament and therefore  are  crea- tures  of  written  instruments.  To that  extent  they  are rigid. Moreover in the Australian Constitution in distribut- ing the powers among the legislative and executive  authori- ties, the word "vest" is used as in the Constitution of  the U.S.A.   To  that extent the two Constitutions  have  common features.  There is however no clear. separation  of  powers between  the legislature and executive so as to be  mutually and  completely  exclusive and there is fusion of  power  so that  the Ministers are themselves members of  the  legisla- ture.     Our  attention  was drawn to several  decisions  of  the Supreme Court of the United States of America mostly to draw a distinction between the legislative powers of the Congress in  the United States of America and the legislative  powers of  the  legislature  under Constitutions  prepared  on  the British  Parliament  pattern. It was conceded  that  as  the Constitution itself provided that the legislative and execu- tive powers were to vest exclusively in the legislature  and the  executive authority mentioned in the  Constitution,  it was not permissible for one body to delegate this  authority and  functions  to  another body.  It may  be  noticed  that several decisions of the Supreme Court of U.S.A,    787 are based on the incompetence of the delegate to receive the power  sought  to  be conferred on it.   Its  competence  to function  as the executive body is expressly set out in  the Constitution,  and  it has been thought that  impliedly  the Constitution has thereby prevented such body from  receiving from the legislative body other powers.  In view of my final conclusion I shall very briefly notice the position  accord- ing to the U.S.A. Constitution.     In  Crawford on Statutory Construction, it is stated  as follows:  "So far however as the delegation of any power  to an executive official or Administrative Board is  concerned, the  legislature must declare the policy of the law and  fix the legal principles which are to control in given cases and must provide a standard to guide the official or the  ,Board empowered to execute the law.  This standard must not be too indefinite or general.  It may be laid down in broad general terms. It is sufficient if the legislature will lay down  an intelligible principle to guide the executive or administra- tive  official  ......  From these difficult criteria it  is apparent that the  Congress exercises considerable liberali- ty  towards upholding legislative delegations if a  standard is  established.   Such delegations are not subject  to  the objection  that  the legislative power has  been  unlawfully delegated. The filling in mere matters of details within the policy of, and according to, the legal principles and stand- ards, established by the Legislature, is essentially  minis- terial   rather  than  legislative in  character,  even’  if considerable  discretion  is conferred  upon  the  delegated authority."     In  Hampton  & Co. v. United States(1),  Taft  C.J.  ob- served:  "It is a breach of the national fundamental law  if Congress gives up its legislative power and transfers it  to the  President  or to the judicial branch or if  by  law  it attempts to invest itself or its members with either  execu- tive  or judicial power. This is not to say that  the  three branches  are  not co-ordinate parts of one  Government  and that each in the field of duties  (1) (1928) 276 U.S. 394, 406 & 407. 788 may  not invoke the action of the two other branches  in  so far as the action invoked shall not be an assumption of  the

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constitutional  field  of action of another  branch   ...... The  field  of Congress involves all and many  varieties  of legislative  action  and Congress has  found  it  frequently necessary  to  use officers of the executive  branch  within defined  limits to secure the exact effect intended  by  its act of legislation by vesting discretion in such officers to make public regulations, interpreting a statute and  direct- ing  the  details  of its executive even to  the  extent  of providing    for    penalizing    a    preach    of     such regulations   .........   Congress may  feel  itself  unable conveniently  to determine exactly when its exercise of  the legislative power should become effective, because dependent on future conditions, and it may leave the determination  of such  time to the decision of an executive." He agreed  with the often cited passage from the judgment of Ranny J. of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. v.   Clin- ton  County Commissioners (1), viz., "The  true  distinction therefore  is between the delegation of power  to  make  the law  which necessarily involves a discretion as to  what  it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law. The  first cannot be done; to the latter no valid  objection can be made."     In  Locke’s Appeal(2), it. is slated:  "The proper  dis- tinction is this.  The legislature cannot delegate its power to  make a law but it can make a law to delegate a power  to determine  some fact or state of things upon which  the  law makes or intends to make its own action depend. To deny this would  be to stop the wheels of Government. There  are  many things  upon  which useful legislation  must  depend,  which cannot be known to the law-making power, and must  therefore be a subject of enquiry and determination outside the  halls of legislature."     In  Panama Refining Co. v. Ryan (s), it was observed  by Hughes C.J. "The Congress is not permitted to  (1) 1 Ohio St. 88.             (3) 293 U.S. 388.  (2) 72 P.A. 491, 789 abdicate  or  transfer to others the  essential  legislative functions with which it is vested.  Undoubtedly  legislation must often be adapted to complex conditions involving a host of  details with which the National Legislature cannot  deal directly.   The  Constitution  has never  been  regarded  as denying to the Congress the necessary resources of flexibil- ity  and  practicality which will enable it to  perform  its function  in laying down policies and  establish  standards, while  leaving to selected instrumentalities the  making  of subordinate rules within prescribed limits and the  determi- nation  of  facts  to which the policy as  declared  by  the legislature is to apply.  Without capacity to give  authori- sations of that sort we should have the anomaly of a  legis- lative  power  which in many circumstances calling  for  its exertion  would be but a futility but the constant  recogni- tion  of the necessity and validity of such  provisions  and the  wide range of administrative authority which  has  been declared  by means of them cannot be allowed to obscure  the limitations  of the authority to delegate if  our  constitu- tional  system is to be maintained. Similarly, in  Schechter v. United States (1), it is stated:  "So long as the  policy is  laid  down  and standard established by  a  statuten  no unconstitutional delegation of legislative power is involved in  leaving  to  selected instrumentalities  the  making  of subordinate rules within prescribed limits and the  determi- nation  of  facts  to which the policy as  declared  by  the legislature is to apply."

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   The  complexity of this question of delegation of  power and the consideration of the various decisions in which  its application  has led to the support or invalidation of  Acts has been somewhat aptly put by Schwartz on American Adminis- trative Law.  After quoting from Wayman v. Southend (2)  the observations  of  Marshall C.J. that the line has  not  been exactly drawn which separates those important subjects which must  be entirely regulated by the legislature  itself  from those  of less interest in which a general provision may  be made and power given to those who are to (1) 295 U.S. 459. (2) 10 Wheat 1 U.S. 1825. 790 act  under  such general provision to fill up  details,  the author points out that the resulting judicial dilemma,  when the  American courts finally were squarely  confronted  with delegation  cases, was resolved by the judicious  choice  of words to describe the word "delegated power".  The authority transferred  was,  in  Justice  Holmes’  felicitous  phrase, "softened  by  a quasi", and the courts were  thus  able  to grant  the fact of delegated legislation and still  to  deny the name.  This result is well put in Prof. Cushman’s syllo- gism:     "Major  premise: Legislative power cannot  be  constitu- tionally delegated by Congress.     Minor  premise: It is essential that certain  powers  be delegated to administrative officers and regulatory  commis- sions. Conclusions:  Therefore  the powers thus delegated  are  not legislative powers.     They  are  instead administrative  or  quasi-legislative powers. ’’     It was argued on behalf of the President that the legis- lative  practice in India for over eighty years  has  recog- nised  this  kind of delegation and as that is  one  of  the principles  which the court has to bear in mind in  deciding the  validity of Acts of the legislature, this Court  should uphold that practice. In support of this contention a sched- ule  annexed to the case filed on behalf of  the  President, containing  a list of Acts, is relied upon.  In my  opinion, out  of those, the very few Acts which on a  close  scrutiny may  be cited as instances, do not establish any such  prac- tice.   A few of the instances can be supported  as  falling under the description of conditional legislation  or subsid- iary  legislation. I do not discuss this in  greater  detail because  unless the legislative practice  is  overwhelmingly clear, tolerance or acquiescence in the existence of an  Act without a dispute about its validity being raised in a court of  law for some years cannot be considered binding, when  a question  about the validity of such practice is raised  and comes  for decision before the Court. In my opinion,  there- fore; this broad 791 contention of the Attorney-General that the Indian  Legisla- ture  prior to 1935 had power to delegate legislative  func- tions in the sense contended by him is neither supported  by judicial decisions nor by legislative practice.     A  fair  and  close reading and analysis  of  all  these decisions of the Privy Council, the judgments of the Supreme Courts  of  Canada  and  Australia  without  stretching  and straining the words and expressions used therein lead me. to the  conclusion that while a legislature, as a part  of  its legislative  functions, can confer powers to make rules  and regulations  for carrying the enactment into  operation  and effect,  and while a legislature has power to lay  down  the

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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 of the Act can be extended to certain areas or may be  brought  into force on such determination which  is  de- scribed  as conditional legislation, the power  to  delegate legislative  functions generally is not warranted under  the Constitution of India at any stage.  In cases of  emergency, like  war where a large latitude has to be necessarily  left in the matter of enforcing regulations to the executive, the scope  of the power to make regulations is very  wide,  but. even.  in those cases the suggestion that there was  delega- tion  of "legislative functions" has been repudiated.  Simi- larly, varying according to the necessities of the case  and the  nature of the legislation, the doctrine of  conditional legislation or subsidiary legislation or ancillary  legisla- tion  is equally upheld under all the Constitutions.  In  my opinion,  therefore,  the contention urged  by  the  learned Attorney-General  that legislative power carries with  it  a general power to delegate legislative functions, so that the legislature  may  not define its policy at all and  may  lay down  no  rule of conduct but that whole thing may  be  left either to the executive authority or administrative or other body,  is  unsound and not supported by the  authorities  on which he relies.  I do not think that apart from the  sover- eign character of 792 the  British Parliament which is established as a matter  of convention and whose powers are also therefore absolute  and unlimited,  in any legislature of any    other country  such general  powers  of delegation as claimed by  the  Attorney- General  for a legislature, have been recognised or  permit- ted.       It was contended by the learned Attorney-General  that under  the power of delegation the legislative  body  cannot abdicate  or  efface  itself.  That was its  limit.  It  was argued that so long as the legislature had power to  control the  actions of the body to which power was delegated,  that so  long as the actions of such body were capable  of  being revoked  there was no abdication or effacement.  In  support of this argument some reliance was placed on certain  obser- vations  in the judgments of the Privy Council in the  cases mentioned  above.  It should be noticed that the  Board  was expressing  its  views to support the  conclusion  that  the particular  piece  of legislation  under  consideration  was either  a  conditional legislation or that  the  legislation derived its force and sanction from what the legislature had done  and  not from what the delegate had done.   I  do  not think that those observations lead to the conclusion that up to that limit legislative delegation was permitted. The true test in respect of’ ’abdication" or "effacement" appears  to be  whether  in conferring the power to  the  delegate,  the legislature, in the words used to confer the power, retained its control. Does the decision of the delegate derive  sanc- tion from the act of the delegate or has it got the sanction from  what the legislature has enacted and decided ?   Every power given to a delegate can be normally called back. There can  hardly be a case where this cannot be done because  the legislative  body  which confers power on the  delegate  has always  the  power to revoke that authority and  it  appears difficult  to visualize a situation in which such power  can be irrevocably lost. It has been recognised that a  legisla- tive body established under an Act of the British Parliament by its very establishment has not the right to create anoth- er legislative body with the same junctions and

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793 powers and authority.  Such power can be only in the British Parliament and not in the legislature established by an  Act of the British  Parliament. Therefore, to say that the  true test of effacement is that the authority which confers power on  the subordinate body should not be able to withdraw  the power appears to be meaningless.  In my opinion,  therefore, the question whether there is "abdication" and  "effacement" or not has to be decided on the meaning of the words used in the  instrument by which the power is conferred on  the  au- thority.   Abdication, according to the  Oxford  Dictionary, means abandonment, either formal or virtual, of sovereignty. Abdication by a legislative body need not necessarily amount to  a complete effacement of it.  Abdication may be  partial or  complete.  When in respect of a subject in the  Legisla- tive  List the legislature says that it shall not  legislate on  that  subject  but would leave it to  somebody  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  subordi- nate  authority, although  the  legislature  has   power  to control the action of the subordinate authority, by  recall- ing such power or repealing the Acts passed by the  subordi- nate authority, the power conferred by the instrument, in my opinion,  amounts  to  an abdication or  effacement  of  the legislature conferring such power.     The power to modify an Act in its extension by the order of the subordinate authority has also come in for considera- ble discussion.  Originally when power was conferred on  the subordinate  authority  to  apply  existing  legislation  to specified  areas it was given only to apply the whole  or  a portion thereof. That power was further expanded by giving a power  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  power  was  con- ferred  was only left with the discretion to apply what  was Considered suitable, as a whole or in part, 794 and  to make adaptations which became necessary  because  of local conditions and nothing more.  Only in recent years  in some  Acts power of modification is given without any  words of  limitation on that power. The  learned  Attorney-General contended  that  the word "modify" according to  the  Oxford Dictionary means    to limit, restrain, to assuage, to  make less  severe, rigorous, or decisive ;to tone down."   It  is also given the meaning "to make partial changes in;to  alter without radical transformation." He therefore contended that if the done of the power exceeded the limits of the power of modification beyond that sense, that would be exceeding  the limits  of the power and to that extent the exercise of  the power  may be declared invalid. He claimed no  larger  power under  the  term  "modification."  On  the  other  hand,  in Rowland Burrows’ "Words and Phrases ", the word "modify" 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 of  the former  Act.  It has been pointed out that under the  powers conferred by the Delhi Laws Act, the Central Government  has extended  the application of the Bombay Debtors’ Relief  Act to  Delhi.  The Bombay Act limits its  application  to  poor agriculturists  whose agricultural income is less  than  Rs. SO0. Under the power of modification conferred on it by  the Delhi  Laws  Act, the Central Government  has  removed  this limit  on the income, with the result that  the  principles,

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policy  and  machinery to give relief to  poor  peasants  or agriculturists  with an income of less than Rs. 500 is  made applicable in Delhi to big landowners even with an income of 20  lakhs.   This  shows how the word  ’  ’modification"  is understood and applied by the Central Government and  acqui- esced  in  by the Indian Legislature.  I do not  think  such power  of modification as actually exercised by the  Central Government is permitted in law.  If power of modification so understood  is  permitted, it will be open  to  the  Central Legislature  in  effect  to change the whole  basis  of  the legislation and the reason for making the 795 law.   That  will be a complete  delegation  of  legislative power, because in the event of the exercise of the power  in that manner the Indian legislature has not applied its  mind either to the policy under which relief should be given  nor the class of persons, nor the circumstances nor the  machin- ery  by which relief is to be given. The provisions  of  the Rent  Restriction Act in different Provinces are an  equally good example to show how dangerous it is to confer the power of modification on the executive government.     Having  considered  all the decisions which  were  cited before us and giving anxious consideration to the  elaborate and  detailed  arguments advanced by the  learned  Attorney- General  in the discussion of this case, I adhere to what  I stated  in Jatindra Nath Gupta’s case(1) that the  power  of delegation,  in  the  sense of  the  legislature  conferring power, on either the executive government or another author- ity,  "to lay down the policy underlying a rule of  conduct" is not permitted. The word "delegation ", as I have  pointed out, has been somewhat loosely used in the course of discus- sion and even by some Judges in expressing their views. As I have  pointed  out  throughout the decisions  of  the  Privy Council  the  word "delegation" is used so as not  to  cover what  is described as conditional legislation or  subsidiary or  ancillary  legislation, which means the  power  to  make rules and regulations to bring into operation and effect the enactment. Giving "delegation" the meaning which has  always been  given  to it in the decisions of the  Privy   Council, what I stated in Jatindra Nath Gupta’s case, as the legisla- ture  not having the power of delegation is, in my  opinion, correct.     Under the new Constitution of 1950, the British  Parlia- ment,  i.e. an outside authority, has no more  control  over the  Indian Legislature. That Legislature’s powers  are  de- fined and controlled and the limitations thereon  prescribed only  by  the Constitution of India. But the  scope  of  its legislative power has not become (1) [1949] F.C.R. 595. 796 enlarged  by  the provisions found in  the  Constitution  of India.  While  the Constitution creates the  Parliament  and although it does not in terms expressly vest the legislative powers  in the Parliament exclusively, the whole  scheme  of the  Constitution is based on the concept that the  legisla- tive  functions of the Union will be discharged by the  Par- liament and by no other body. The essential of the  legisla- tive  functions, viz., the determination of the  legislative policy  and its formulation as a 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  provi- sions of article 357 and article 22 (4) of the  Constitution of  India. Article 356 provides against the  contingency  of the  failure of the constitutional machinery in the  States. On a proclamation to that effect being issued, it is provid-

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ed in article 357 (1) (a) that the power of the  legislature of the State shall be exercisable by or under the  authority of the Parliament, and it shall be competent for the Parlia- ment to confer on the President the power of the legislature of the State to make laws "and to authorise the President to delegate, subject to such conditions as he may think fit  to impose. the powers so conferred to any other authority to be specified  by  him in that behalf." Sub-clause (b)  runs  as follows  :--" For Parliament, or for the President or  other authority  in whom such power to make laws is  vested  under sub-cl.  (a),  to make laws conferring powers  and  imposing duties,  or  authorising the conferring of  powers  and  the imposition of duties, upon the Union or officers and author- ities  thereof." It was contended that on the  breakdown  of such  machinery authority had to be given to the  Parliament or  the President, firstly, to make laws in respect of  sub- jects  on which the State Legislature alone could  otherwise make  laws and, secondly, to empower the Parliament  or  the President  to make the executive officers of the State  Gov- ernment to act in accordance with the laws which the Parlia- ment  or the President may pass in such emergency.   It  was argued that for this purpose the word "to delegate" is used. I  do not think this argument is sound. Sub-clause  (2)  re- lates to the power 797 of  the President to use the State executive  officers.  But under clause (a) Parliament is given power to confer on  the President the power of the legislature of the State to  make laws. Article 357 (1) (a) thus expressly gives power to  the Parliament to authorise the President to delegate his legis- lative powers. If powers of legislation include the power of delegation  to any authority there was no occasion  to  make this additional provision in the article at all.  The  word- ing  of this clause therefore supports the  contention  that normally  a power of legislation does not include the  power of delegation.     Article  22 (4) again is very important in this  connec- tion.  It deals with preventive detention and provides  that no law shall be valid which will permit preventive detention of  a  person  for a period over three  months,  unless  the conditions  laid  down in article 22 (4)  (a)  are  complied with.  The exception to this is in respect of an Act of  the Parliament  made on the conditions mentioned in  article  22 (4)  (b).  According to that, the Parliament has to pass  an Act consistently with the provisions of article 22 (7).  The important point is that in respect of this fundamental right given to a person limiting the period of his detention up to three months, an exception is made in favour of the  Parlia- ment  by  the article. It appears to me a violation  of  the provisions of this article on fundamental rights to  suggest that  the Parliament having the power to make a  legislation within the terms of article 22(7) has the power to  delegate that  right  in favour of the executive government.   In  my opinion, therefore the argument that under the  Constitution of  1950 the power of legislation carries with it the  power of  delegation,  in the larger sense, as  contended  by  the Attorney-General cannot be accepted.     Having regard to the position of the British Parliament, the question whether it can validly delegate its legislative functions cannot be raised in a court of law. Therefore from the fact that the British Parliament has delegated  legisla- tive powers it does not follow. that the power of delegation is recognised in law as necessarily included in the power of legislation,  Although 798

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in the Constitution of India there is no express  separation of powers, it is clear that a legislature is created by  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 own 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 ?  I  am unable to read the decisions to which our attention has been drawn  as laying down that once a legislature  observes  the procedure  prescribed  for passing a bill into  an  Act,  it becomes  a valid law, unless it is outside  the  Legislative Lists  in  the Seventh Schedule prescribing  its  respective powers.  I do not read articles 245 and 246 as covering  the question of delegation of legislative powers. In my opinion, on a true construction of articles 245 and 246 and the Lists in  the  Seventh  Schedule, construed in the  light  of  the judicial  decisions mentioned above, legislation  delegating legislative powers on some other bodies is not a law on  any of  the  subjects or entries mentioned  in  the  Legislative Lists.  It amounts to a law which states that instead of the legislature  passing  laws  on any subject  covered  by  the entries, it confers on the body mentioned in the legislation the power to lay down the policy of the law and make a  rule of conduct binding on the persons covered by the law.     As a result of considering all these decisions  together it  seems to me that the legislature in India, Canada,  Aus- tralia  and  the  U.S.A. has to  discharge  its  legislative functions, i.e., to lay down a rule of conduct. In doing  so it  may,  in addition, lay down conditions, or  state  facts which  on  being fulfilled or ascertained according  to  the decision  of  another body or the executive  authority,  the legislation may become applicable to a particular area. This is  described as conditional legislation.   The  legislature may also, in laying down the rule of conduct, express itself generally  if the conditions and circumstances  so  require. The extent of the 799 specific  and  detailed lines of the rule of conduct  to  be laid down may vary according to the circumstances or exigen- cies,  of  each case. The result will be that if,  owing  to unusual  circumstances or exigencies, the  legislature  does not  choose to lay down detailed rules or regulations,  that work  may  be left to another body which is then  deemed  to have subordinate legislative powers.     Having regard to the distinction  noticed above  between the  power  of delegation of legislative functions  and  the authority  to confer powers which enables the donee  of  the power  to make regulations or rules to bring into effect  or operation  the law and the power of the legislature to  make conditional  legislation,  I shall proceed to  consider  the three specific questions mentioned in the Reference.  It may be  noticed that occasions to make legislation of  the  type covered  by the three sections mentioned in the three  ques- tions  began in the early stages of the occupation of  India where small bits of territories were acquired and in respect of  which  there  was no regular legislative  body.  It  was thought convenient to apply to these small areas laws  which were  made  by competent’ legislature in  contiguous  areas. That  practice was adopted to avoid setting up  a  separate, sometimes  inconvenient and sometimes costly,  machinery  of legislation  for  the  small area. Nor might  it  have  been considered  possible for the Governor-General in Council  to

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enact laws for the day to day administration of such bits of territory or for all their needs having regard to  different local  conditions. As local conditions may differ to a  cer- tain extent, it appears to have been considered also conven- ient to confer powers on the administrator to apply the  law either in whole or in part or to restrict its operation even to  a  limited  portion of such newly  acquired  area.  This aspect of legislation is prominently noticed in Act XXII  of 1869 discussed in The Queen v. Burah(1). Under section 22 of the  Indian  Councils Act of 1861, the  Governor-General  in Council was given power to make laws for all persons and for all  places  and things whatever within British  India.  The Province  of Delhi was carved out of the Province of  Punjab and was put (1) 5 I.A. 178. 800 under  a  Chief Commissioner and by section 2 of  the  Delhi Laws  Act  the laws in force in the Punjab continued  to  be operative  in  the newly created Province    of  Delhi.  The Province of Delhi had not its legislative body and so far as this  Chief Commissioner’s Province is concerned it  is  not disputed  that the power to legislate was in  the  Governor- General  in Council in his legislative capacity.  The  first question  as  worded  has to be answered  according  to  the powers and position of the legislature in 1912. Section 7 of the  Delhi  Laws Act enables the Government  (executive)  to extend by notification with such restrictions and  modifica- tions 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, i.e., a law which was in force not necessarily in the Province of Punjab only,  from which the Province of Delhi was carved out,  but any  Central  or provincial law in force  in  any  Province. Again, the Government is given power to extend any such  law with  such restrictions and modifications as it thinks  fit. Moreover  it enables the Provincial Government to extend  an Act  which is in force "at the date of  such  notification." Those words therefore permit extension of future laws  which may be passed either by the Central or any Provincial legis- lature, also with such restrictions and modifications as the Provincial Government may think fit. At this stage, sections 8 and 9 of Act XXII of 1869 under which powers were given to the  Lieut.-Governor  in The Queen v. Burah(1) may  be  com- pared.   They permitted the extension of Acts which were  or might  be made by the Governor-General in Council  (legisla- tive) or the Lieut.Governor, both of whom were the competent legislative authorities for the whole area under the  admin- istrative jurisdiction of the Lieut.-Governor. The power was confined to extend only those Acts, over the area  specified in Act XXII of 1869, although that area was declared by  Act XXII  of  1869 as not subject to the laws of  the  Province, unless the area was specifically mentioned in the particular Act.  On (1) 5 I.A. 178. 801 the authority of that decision therefore, so far as  section 7  of the Delhi Laws Act gives power to the executive  (Cen- tral) Government to extend Acts passed by the Central Legis- lature to the Province of Delhi, the same may be upheld.     The question then remains in respect of the power of the executive  government  to extend Acts  of  other  Provincial legislatures (with or without restrictions or modifications) to the Chief Commissioner’s Province. It is obvious that  in respect  of these Acts the Central Legislature has  not  ap- plied  its  mind at all. It has not considered  whether  the

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Province of Delhi requires the rule of conduct laid down  in those  Acts, as necessary or beneficial for the  welfare  of the  people of the Province or for its government. They  are passed  by other Provincial legislatures according to  their needs  and  circumstances.  The effect of section 7  of  the Delhi  Laws Act therefore in permitting the Central  Govern- ment to apply such Provincial Acts to the Province of  Delhi is  that, instead of the Central Legislature making  up  its mind  as to the desirability or necessity of making laws  on certain  subjects in respect of the Province of Delhi,  that duty  and right are conferred on the  executive  government. For  example, the question whether a rent act, or an  excise act,  or  what may be generally described as  a  prohibition act,  or a debt relief act is desirable or necessary,  as  a matter of policy for the Province of Delhi is not considered and decided by the Central Legislature which, in my opinion, has to perform that duty, but that duty and function without any reservation is transferred over to the executive govern- ment.   Section  7 of the Delhi Laws Act  thus  contains  an entirely  different  quality of power from  the  quality  of power conferred by sections 8 and 9 of Act XXII of 1869.     All  the  decisions of the Privy  Council  unequivocally affirm  that it is not competent for the Indian  Legislature to  create a body possessing the same powers as the  Central Legislature  itself.   It  is stated  that  the  legislature cannot efface itself. One may well ask, if section 7 of  the Delhi Laws Act has done 802 anything  else.  The Privy Council decisions  emphasize  two aspects  in respect of this question.  The first is  whether the  new body is empowered to make laws.The second is,  does the sanction flow from the legislation made by the  legisla- ture  or  from the decision of the newly created  body.   As regards the first, it is obvious that in principle there  is no difference if the newly created body itself writes out on a sheet of paper different sections of an Act or states that the Act will be what is written or printed on another clear- ly identifiable paper.  Therefore if such new body says that the law in Delhi will be the same as Bombay or Madras Act so and  so of such and such year it has made the law.  Moreover it  may be remembered that in doing so the new body may  re- strict  or modify the provisions of such Act also.   On  the second aspect the sanction flows clearly from the  notifica- tion of the newly created body that Bombay or Madras Act  so and so with such modifications as may be mentioned, will  be the law.That has not been the will or decision of the legis- lature.The  legislature  has not applied its mind  and  said "Bombay   Act    ...............   is  the   law   of   this Province".In  my opinion, it is futile to contend  that  the sanction  flows from the statement of the  legislature  that the  law  will  be what the newly created  body  decides  or specifies,  for that statement only indicates the  new  body and  says  that  we confer on it power to select  a  law  of another province.     The  illustrations  of the extension of  the  Civil  and Criminal  Procedure Codes, mentioned in the judgment in  The Queen v. Burah(1) have to be considered along with the  fact that  at that time the Governor-General in Council,  in  its legislative  capacity,  had power of  legislation  over  the whole  of  India  on all subjects. The  Civil  and  Criminal Procedure Codes were enacted by the Central Legislature  and it could have made the same applicable at once to the  whole of India.  But having passed the laws, it laid down a condi- tion  that its application may be referred to certain  areas until  the  particular  Provincial  Government   (executive)

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considered it convenient for these Codes to be made (1) 5 I.A. 178, 803 applicable   to  its individual area.  A Provincial  Govern- ment,  e.g.,  of Bombay, was not empowered to lay  down  any policy in respect of the Civil Procedure Code or the  Crimi- nal  Procedure Code nor was it  authorised to select, if  it liked,  a  law passed by the Legislature of Madras  for  its application  to the Province of Bombay.  If it wanted to  do so,  the Legislature of the Province of Bombay had to  exer- cise its judgment and decision and pass the law which  would be enforceable in the Province of Bombay.  It may be noticed that  the  power to extend, mutatis mutandis,  the  laws  as contained in sections 8 and 9 of Act XXII of 1869 brings  in t.he idea of adaptation by modification, but so far only  as it  is necessary for the purpose. In my opinion,  therefore, to  the extent section 7 of the Delhi Laws Act  permits  the Central  executive government to apply any law passed  by  a Provincial legislature to the Province of Delhi, the same is ultra  vires  the Central Legislature.  To that  extent  the Central  Legislature has abdicated its functions and  there- fore the Act to the extent is invalid.     Question 2 relates to Ajmer-Merwara (Extension of  Laws) Act.  Till  the  Government of India Act,  1915,  there  was unitary government in India.  By the Act of 1915, Provincial legislatures were given powers of legislation but there  was no distribution of legislative powers between the Centre and the  Provinces.  That was brought about only by the  Govern- ment  of India Act, 1935. Section 94 of that Act  enumerates the Chief Commissioner’s Provinces.  They include the  Prov- inces of Delhi and Ajmer-Merwara. Under sections 99 and  100 there  was  a  distribution of  legislative  powers  between Provinces  and Centre, but the word "Province" did  not  in- clude  a  Chief Commissioner’s Province  and  therefore  the Central  Legislature was the only law-making  authority  for the  Chief Commissioner’s Provinces. The  Ajmer-Merwara  Act was  passed under the Government of India Act as adapted  by the  Indian  Independence  Act.  Although by  that  Act  the control of British Parliament over the Government of India 804 and  the Central Legislature was removed, the powers of  the Central Legislature were still as those found in the Govern- ment of India Act, 1935. The Independence Act therefore made no  difference on the question whether the power of  delega- tion was contained in the legislative power.  The result  is that to the extent to which section 7 of the Delhi Laws  Act is  held  ultra vires, section 2 of the  Ajmer-Merwara  Act, 1947, should also be held ultra vires.      This  brings me to Question 3. section 2 of the Part  C States (Laws) Act, 1950, is passed by the Indian Parliament. Under  article 239 of the Constitution of India, the  powers for  the administration of Part C States are all  vested  in the President. Under article 240 the Parliament is empowered to  create or continue for any  State specified in  Part  C, and administered through a Chief Commissioner or  Lieutenant Governor;     (a)  a  body  whether nominated  or  elected  or  partly nominated  or partly elected, to function as  a  legislature for the State, or (b) a Council of Advisers or Ministers. It  is  common ground that no law creating such  bodies  has been passed by the Parliament so far. Article 246 deals with the  distribution of legislative powers between  the  Centre and the States but Part C States are outside its  operation. Therefore on any subject affecting Part C States, Parliament

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is the sole and exclusive legislature until it passes an Act creating a legislature or a Council in terms of article 240. Proceeding  on the footing that a power of legislation  does not carry with it the power of delegation (as claimed by the Attorney-General), the question is whether section 2 of  the Part  C States (Laws) Act is valid or not. By  that  section the Parliament has given power to the Central Government  by notification  to  extend to any part of such State  (Part  C State),  with  such  restrictions and  modifications  as  it thinks fit, any enactment which is in force in Part A  State at the date of the.notification. The section although framed on the lines of the Delhi Laws Act and the Ajmer-Merwara Act is restricted in 805 its scope as the executive government is empowered to extend only  an Act which is in force in any of the Part A  States. For  the reasons I have considered certain parts of the  two sections covered by Questions 1 and 2 ultra rites, that part of  section 2 of the Part C States (Laws) Act,  1950,  which empowers the Central Government to extend laws passed by any Legislature  of Part A State, will also be ultra  vires.  To the extent the Central Legislature or Parliament has  passed Acts which are applicable to Part A States, there can be  no objection to the Central Government extending, if necessary, the  operation of those Acts to the Province of  Delhi,  be- cause  the Parliament is the competent legislature for  that Province.  To  the extent however the  section  permits  the Central Government to extend laws made by any legislature of Part A State to the Province of Delhi, the section is  ultra vires.     In view of my conclusion in respect of the first part of section  2 of the Part C States (Laws) Act, 1950, I  do  not think it necessary to deal with separately the other part of the  section  relating  to the power to repeal  or  amend  a corresponding law for the time being applicable to that Part C State.     Before concluding, I must record the appreciation of the Court  in  the  help the learned  Attorney-General  and  the counsel  appearing  in the Reference have  rendered  to  the Court by their industry in collecting all relevant materials and  putting the same before the Court in an extremely  fair manner.     My  answers  to  the questions are that  all  the  three sections  mentioned in the three questions are  ultra  vires the Legislatures, functioning at the relevant dates, to  the extent  power  is given to the  Government  (executive)   to extend  Acts other than Acts of the Central  Legislature  as mentioned in the judgment.     FAZL  ALI  J.--The answer to the three  questions  which have been referred by the President under article 143 of the Constitution  of  India, depends upon the proper  answer  to another question which was the 806 subject of very elaborate arguments before us and which  may be stated thus: Can a legislature which is sovereign or  has plenary powers within the field assigned to it, delegate its legislative functions to an executive authority or to anoth- er agency, and, if so. to what extent it can do so ?     In  dealing with this question, three  possible  answers may be considered. They are :--     (1)  A  legislature which is sovereign in  a  particular field  has unlimited power of delegation and the content  of its  power  must necessarily include the power  to  delegate legislative functions;     (2)  Delegated  legislation is permissible  only  within

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certain limits; and      (3) Delegated legislation is not permissible at all  by reason of certain principles of law which are wellknown  and well-recognised.     I will first consider the last alternative, but I should state  that  in doing so I will be  using  the  expressions, "delegated  legislation,"  and  "delegation  of  legislative authority,"  in the loose and popular sense and not  in  the strict sense which I shall explain later.      One  of the principles on which reliance was placed  to show  that legislative power cannot be delegated is said  to be  embodied in the well-known maxim, delegatus  non  potest delegare,  which in simple language means that  a  delegated authority  cannot  be redelegated, or, in other  words,  one agent cannot lawfully appoint another to perform the  duties of agency. This maxim however has a limited application even in the domain of the law of contract or agency wherein it is frequently  invoked and is limited to those cases where  the contract of agency is of a confidential character and  where authority  is coupled with discretion or  confidence.  Thus, auctioneers,  brokers, directors, factors,  liquidators  and other persons holding a fiduciary position have generally no implied  authority  to employ deputies or  sub-agents.   The rule  is so stated in Broom’s Legal Maxims, and  many  other books,  and it is also stated that in a number of cases  the authority to employ 807 agents  is implied.  In applying the maxim to the act  of  a legislative  body,  we have necessarily to ask "who  is  the principal and who is the delegater" In some cases where  the question of the power of the Indian or   a colonial legisla- ture  came up for consideration of the courts, it  was  sug- gested that such a legislature was a delegate of the British Parliament  by  which it had been vested with  authority  to legislate.   But this view has been rightly repelled by  the Privy Council on more than one occasion, as will appear from the following extracts from two of the leading cases on  the subject:-     "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  circum- scribe 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." Reg. v. Burah (1).     "It appears to their Lordships, however, that the objec- tion  thus raised by the appellants is founded on an  entire misconception  of  the true character and  position  of  the Provincial Legislatures.  They are in no sense delegates  of or  acting under any mandate from the  Imperial  Parliament. When the British North America Act enacted that there should be  a Legislature for Ontario,  and that   its   Legislative Assembly  should have exclusive authority to make  laws  for the Province and for Provincial purposes in relation to  the matters  enumerated in section 92, it conferred powers,  not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and  as ample,  within the limits prescribed by section 92,  as  the Imperial Parliament in the plenitude of its power  possessed and could bestow.  Within these limits of subjects and areas the Local Legislature is supreme, and has the same authority as the Imperial Parliament.": Hodge v. The Queen (2). (1) 3 App. Cas. 889.         (2) 9 App. Cas. 117. 808

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    It  has  also been suggested by some writers  that  the legislature  is  a delegate of the people or  the  electors. This view again has not been accepted by some constitutional writers,  and Dicey dealing with the powers of  the  British Parliament  with reference to the Septennial Act, states  as follows :--      "That Act proves to demonstration that in a legal point of view Parliament is neither the agent of the electors  nor in  any sense a trustee for its constituents. It is  legally the  sovereign legislative power in the state, and the  Sep- tennial Act is at once the result and  the  standing   proof of such  Parliamentary sovereignty." (1) The same learned author further observes:--      "The  Judges know nothing about any will of the  people except  in  so far as that will is expressed by  an  Act  of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed  or being  kept alive in opposition to the wishes of  the  elec- tors." (2)        There can be no doubt that members of a legislature represent  the majority of their electors, but the  legisla- ture  as a body cannot be said to be an agency of the  elec- torate  as a whole. The individual members may and often  do represent different parties and different shades of opinion, but  the composite legislature which legislates, does so  on its own authority or power which it derives from the Consti- tution, and its acts cannot be questioned by the electorate, nor  can the latter withdraw its power to legislate  on  any particular matter.  As has been pointed out by Dicey,--      "the  sole  legal right of electors under  the  English Constitution  is  to elect members of  Parliament.  Electors have  no  legal right of initiating, of sanctioning,  or  of repealing the legislation of Parliament." (3)      It  seems  to me therefore that it will  not  be  quite accurate to say that the legislature being an agent of    (1) Dicey’s:"Law of the Constitution", 8th edn., p. 45.    (2) Ibid, p. 72.    (3) Dicey’s "Law of the Constitution", 8th edn., p. 57. 809 its constituents, its powers are subject to the restrictions implied  in  the Latin maxim referred to.  I  shall  however advert  to  this  subject again when  I  deal  with  another principle which is somewhat akin to the principle underlying the maxim.     The  second principle on which reliance was  placed  was said to be founded on the well-known doctrine of "separation of  powers."  It is an old doctrine which is  said  to  have originated  from  Aristotle, but, as is well-known,  it  was given  great prominence by Locke and Montesquieu.  The  doc- trine may be stated in Montesquieu’s own words:---     "In every government there are three sorts of power, the legislative; the executive in respect to things dependent on the  law of nations; and the executive in regard to  matters that  depend on the civil law  ......  When the  legislative and  the executive powers are united in the same person,  or in  the same body of magistrates, there can be  no  liberty; because  apprehensions  may rise, lest the same  monarch  or senate  should enact tyrannical laws, to execute them  in  a tyrannical manner. Again, there is no liberty, if the  judi- ciary  power be not separated from the legislative  and  the executive.   Were it joined with the legislative,  the  life and  liberty  of the subject would be exposed  to  abritrary control;  for the judge would be then the legislator.   Were it  joined  to the executive power, the judge  might  behave with  violence  and oppression.  There should be an  end  of

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everything,  were the same man or the same body, whether  of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public  resolu- tions, and of trying the causes of individuals."(1)     The  doctrine found many enthusiasts in America and  was virtually  elevated  to a legal principle in  that  country. Washington, in his farewell address, said :-     "The  spirit  of enroachment tends  to  consolidate  the powers of all governments in one, and thus to     (1)  Montesquieu’s  Spirit  of Laws, Vol.  1  by  J.  V. Pritchard, 1914 edn, pp. 162-3. 810 create, whatever the form of government, a real despotism."  John  Adams  wrote on similar lines as follows:"  It is by  balancing one of these three powers  against  the other  two that the efforts in human nature  toward  tyranny can alone be checked and restrained and any degree of  free- dom preserved." (1)     These  sentiments are fully reflected in  the  Constitu- tions   of   the  individual  States  as  well as   in   the Federal   Constitution   of  America. Massachusetts  in  her Constitution, adopted in 1780, provided that "in the govern- ment  of this commonwealth the legislative department  shall never  exercise the executive and judicial powers or  either of them; the executive shall never exercise legislative  and judicial powers or either of them; the judicial shall  never exercise legislative and executive powers or either of them; to  the end that it may be a government of laws and  not  of men."(2)  The Constitutions of 39 other States were  drafted on similar lines, and so far as the Federal Constitution  of the United States was concerned, though it does not express- ly create a separation of governmental powers, yet from  the three  articles stating that the legislative power vests  in Congress,  the judicial power in the Supreme Court  and  the executive power in the President, the rule has been  deduced that  the  power  vested in each branch  of  the  Government cannot  be  vested in any other branch. nor can  one  branch interfere  with  the power possessed by  any  other  branch. This  rule has been stated by Sutherland J. in  Springer  v. Government of the Philiipine Islands(s) in these words :--      "It  may be stated then, as a general rule inherent  in the  American constitutional system, that  unless  otherwise expressly   provided or incidental to the powers  conferred, the Legislature cannot exercise either executive or judicial power; the Executive  (1) Vide, Works, Vol. 1, p. 186. (2)      Willoughby’s  Constitution       of    the   United States, Vol. III, 1616. (3) 277 U.S. 189 at 201, 811 cannot  exercise either legislative or judicial  power;  the Judiciary  cannot exercise either executive  or  legislative power."     From the rule so stated, the next step was to deduce the rule  against delegation of legislative power which  has  so often  been stressed in the earlier American decisions.   It was  however  soon realized that the absolute  rule  against delegation  of legislative power could not be  sustained  in practice, and as early as 1825, Marshall C.J. openly  stated that  the rule was subject to limitations and asserted  that Congress "may certainly delegate to others powers which  the Legislature may rightfully exercise itself ,,(1). In  course of  time, notwithstanding the maxim against delegation,  the extent  of delegation had become so great that  an  American writer wrote in 1916 that "because of the rise of the admin-

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istrative process, the old doctrine prohibiting the  delega- tion  of  legislative power has virtually retired  from  the field  and given up the fight".(2) This is in one  sense  an over-statement,  because  the  American  Judges  have  never ceased  to be vigilant to check any undue or  excessive  au- thority being delegated to the executive as will appear from the  comparatively recent decisions of the American  Supreme Court  in  Panama  Refining Co. v. Ryan  (3)  and  Schechter Poultry  Corp. v. United States(4).  In the latter case,  it was  held that the National Industrial Recovery Act,  in  so far as it purported to confer upon the President the author- ity  to adopt and make effective codes of  fair  competition and impose the same upon members of each industry for  which such  a code is approved,-was void because it was an  uncon- stitutional  delegation of legislative power.  Dealing  with the matter, Cardozo J. observed as follows :’-     "The  delegated  power of legislation  which  has  found expression in this code is not canalized within  (1) Wayman v. Southard (1825) 23 U.S. 43.  (2) 41 American Bar Asscn. Reports, 356 at 368.  (3) 293 U.S. 388.            (4) 295 U.S. 495. 812 banks  that keep it from overflowing. It is  unconfined  and vagrant  ......  Here, in the case before us, is an attempt- ed  delegation  not confined to any single act  nor  to  any class or group of acts identified or described by  reference to  a  standard.  Here in effect is a roving  commission  to inquire  into evils upon discovery to correct  them   ...... This is delegation running riot.  No such plenitude of power is capable of transfer."(1)     The  fact however remains that the American courts  have upheld  the  so-called  delegated  legislation  in  numerous instances, and there is now a wide gulf between the theoret- ical doctrine and its application in practice. How  numerous are  the exceptions engrafted on the rule will appear  on  a reference to a very elaborate and informing note appended to the report of the case of Panama Refining Co. v. Ryan in 79, Lawyer’s  Edition  at page 448. In this  note,  the  learned authors  have classified instances of delegation  upheld  in America under the following 8 heads, with numerous sub-heads :-- 1. Delegation of  power to determine facts or conditions on which operation of statute is contingent.    2. Delegation of non-legislative or administrative functions.    3. Delegation of power to make administrative rules and regulations.    4. Delegation to municipalities and local bodies.    5. Delegation by Congress to territorial legislature or commission.    6. Delegation to private or non-official persons or corporations.    7. Vesting discretion in judiciary.    8. Adopting law or rule of another jurisdiction. The learned American Judges in laying down exceptions to the general rule from time to time, have offered various  expla- nations, a few of which may be quoted as samples:- (1) 295 U.S, 495 at 551. 813      "  ......  however we may disguise it by veiling  words we  do  not  and cannot carry out  the  distinction  between legislative and executive action with mathematical precision and divide the branches into watertight  compartments,  were it ever so desirable to do so, which  I am far from  believ- ing  that  it is, or that the Constitution  requires."  [Per

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Holmes  J. in Springer v. The Government of  Phillipine  Is- lands(1)] "  ......too much effort to detail and particularize, so  as to dispense with the administrative or fact-finding  assist- ance,  would  cause great confusion in the laws,  and  would result  in laws deficient in both provision and  execution." [Mutual Film Corporation v. Industrial Commission(2)]     "If  the legislature’ ’were’ strictly required  to  make provision  for all the minutiae of regulation, it would,  in effect, be deprived of the power to enact effective legisla- tion on subjects over which it has undoubted power."    "The true distinction......  is this.  The legislature cannot  delegate its power to make a law; but it can make  a law  to delegate a power to determine some fact or state  of things upon which the law makes, or intends to make, its own action depend.  To deny this would be to stop the wheels  of government."(3)     "The true distinction is between the delegation of power to  make the law which necessarily involves a discretion  as to what it shall be. and conferring authority or  discretion as to its execution, to be exercised under and in  pursuance of  the  law.  The first cannot be done; to  the  latter  no valid objection can be made."  [Per Ranney J. in  Cincinnati W. & Z.R. Co. v. Clinton County Commissioners(4)].  (1) 277 U.S. 189.     (31 Locke’s Appeal, 1873, 72 Pa. 491.  (2) 236 U.S. 230.     (4) 1 Ohio St. 88. 814 "Half  the  statutes on our books are  in  the  alternative, depending  on  the discretion of some person or  persons  to whom is confided the duty of determining whether the  proper occasion  exists for executing them.  But it cannot be  said that the exercise of such discretion is the making of  law." [Moore v.Reading(1)]             "Congress may declare its will and, after fixing a primary standard, devolve upon administrative officers the power  to fill up the details by prescribing  administrative rules and regulations." [United States v.  Shreveport  Grain & E. Co.(2)]                  ......................     "The Constitution has never been regarded as denying  to the  Congress  the necessary resources  of  flexibility  and practicality  which will enable it to perform its  functions in  laying down policies and establishing  standards,  while leaving to selected instrumentalities the making of subordi- nate  rules within the prescribed limits, the  determination of facts to which the policy as declared by the  legislature is to apply. Without capacity to give authorizations of that sort,  we  should have the anomaly of  a  legislative  power which  in many circumstances calling for its exertion  would be but a futility." [Per Hughes C.J. in Panama Refining  Co. Ryan(3)]     "This is not to say that the three branches are not  co- ordinate parts of one government and that each in the  field of  its  duties may not invoke the action of the  two  other branches  in  so far as the action invoked shall not  be  an assumption of the constitutional field of action of  another branch."  [Per  Taft C.J. in J.W. Hampton Jr. &  Co.  v.  U. S.(4)]     I have quoted these extracts at the risk of  encumbering my opinion for 2 reasons:firstly, because they  (1) 21 Pa. 202.        (3) 293 U.S. 388. (2) 287 U.S. 77.           (4) 276 U.S. 394. 815 show  that  notwithstanding  the prevalence of the  doctrine of separation of powers in America, the rule against delega-

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tion of legislative power is by no means an inelastic one in that  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 of the present-day administration, and  secondly, because they show that the rule against delegation is not  a necessary  corollary  from  the doctrine  of  separation  of powers.     It  is to be noted that though the principle of  separa- tion of powers is also the basis of the Australian Constitu- tion, the objection that the delegation of legislative power was  not permissible because of.the distribution  of  powers contained  in the Constitution has been raised in that  Com- monwealth only in a few cases and in all those cases it  has been  negatived. The first case in which this objection  was raised  was Baxter v. Ah Way(1). In that case, the  validity of section 52 of the Customs Act, 1901, was challenged. That section after enumerating certain prohibited imports provid- ed for the inclusion of "all goods the importation of  which may  be prohibited by proclamation."  Section 56 of the  Act provided  that   "the power of  prohibiting  importation  of goods shall  authorise prohibition subject to any  specified condition or restriction and goods imported contrary to  any such   condition   or  restriction  shall   be    prohibited imports."   The ground on which these provisions were  chal- lenged  was that they amounted to delegation of  legislative power  which  had  been vested by the  Constitution  in  the Federal  Parliament.   Griffith C.J.  however  rejected  the contention  and in doing so relied on Queen v. Burah(2)  and other cases, observing :--     "  .............  unless the legislature is prepared  to lay  down at once and for all time, or for so far  into  the future  as they may think fit, a list of  prohibited  goods, they must have power to make a prohibition depending upon  a condition, and that condition may be the coming into  exist- ence or the discovery of some fact (1) (1909) 8 C.L.R. 626.          (2) 3 App. Cas. 889. 816      .........  And if that fact is to be the condition upon which  the liberty to import the goods is to  depend,  there must  be some means of ascertaining that fact,  some  person with power to  ascertain it; and the Governor-in-Council  is the authority appointed to ascertain and declare the fact."     The other cases in which a similar objection was  taken, are  Welebach Light Co. of Australasia Ltd. v.  The  Common- wealth(1), Roche v. Kronheimer(2),  and Victorian  Stevedor- ing  and  General Contracting Co. Pry. Ltd.  and  Meakes  v. Dignan(3).  In the last mentioned case in which  the  matter has been dealt with at great length, Dixon J. observed  thus :--   "  ..........  the time has passed for assigning to the constitutional distribution  of  powers among  the  separate organs of government, an operation which confined the legis- lative  power  to the Parliament so as to restrain  it  from reposing  in  the Executive an authority of  an  essentially legislative character."(4) In  England, the doctrine of separation of powers has  exer- cised very little influence on the course of judicial  deci- sions  or in shaping the Constitution,  notwithstanding  the fact  that distinguished writers like Locke  and  Blackstone strongly advocated it in the 17th and 18th centuries.  Locke in his treatise on Civil Government wrote as follows :-- "The legislature cannot transfer the power of making laws to any  other  hands; for it being a delegated power  from  the people,  they who have it cannot pass it over to others.  (g 141).

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Blackstone endorsed this view in these words :--    Wherever  the  right of making and enforcing the  law  is vested  in  the same man or one and the same  body  of  men, there can be no public liberty."(5) Again, Montesquieu, when he enunciated the doctrine of sepa- ration of powers, thought that it represented the (1) (1916) 22 C.L.R. 268.      (3) (1931) 46C.L.R. 73. (2) (1921) 19 C.L.R. 329.      (4) Ibid, p. 100. (5) Commentaries on the Laws of England, 1765. 817 quintessence  of the British Constitution for which  he  had great  admiration.  The doctrine had  undoubtedly  attracted considerable  attention  in  England in the  17th  and  18th centuries,  but  in course of time it came to  have  a  very different  meaning  there from what it had acquired  in  the United States of America.  In the United States, the  empha- sis was on the mutual independence of the three  departments of Government. But, in England, the doctrine means only  the independence of the judiciary, whereas the emergence of  the Cabinet  system forms a ]ink between the executive  and  the legislature.  How the Cabinet system works differently  from the   so-called  non-parliamentary system which  obtains  in the  United  States,  may be stated very  shortly.   In  the United  States, the executive power is vested in the  Presi- dent,  to whom, and not to the Congress, the members of  the Cabinet are personally responsible and neither the President nor the members of the Cabinet can sit or vote in  Congress, and  they  have no responsibility for  initiating  bills  or seeking  their  passage through Congress.  In  England,  the Cabinet is a body consisting of members of Parliament chosen from  the party possessing a majority in the House  of  Com- mons. It has a decisive voice in the legislative  activities of  Parliament and initiates all the  important  legislation through one or other of the Ministers, with the result  that "while  Parliament is supreme in that it can make or  unmake Government,  the Government once in power tends  to  control the Parliament."     The conclusion which I wish to express may now be stated briefly. It seems to me that though the rule against delega- tion of legislative power has been assumed in America to  be a corollary from the doctrine of separation of powers, it is strictly  speaking not a necessary or inevitable  corollary. The extent to which the rule has been relaxed in America and the elaborate explanations which have been offered to justi- fy  departure  from the rule, confirm this view, and  it  is also  supported by the fact that the trend of  decisions  in Australia, notwithstanding the fact that its Constitution 818 is at least theoretically based  on the principle of separa- tion of powers, is that the principle does not stand in  the way of delegation in suitable circumstances. The division of the  powers  of Government is now a normal  feature  of  all civilised  constitutions, and, as pointed out by Rich J.  in New South. Wales v. Commonwealth.(1), ,, it  is  "well-known in   all  British communities  ; yet, except m  the   United States,  nowhere it has been held that by itself it  forbids delegation  of  legislative power. It seems to me  that  the American jurists have gone too far in holding that  the rule against  delegation was a direct corollary from the  separa- tion of powers. I  will  now  deal with the third principle,  which,  in  my opinion,  is the true principle upon which the rule  against delegation  may be founded. It has been stated  in  Cooley’s Constitutional  Limitations, Volume 1 at page 224  in  these words :--

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     "One  of the settled maxims in constitutional law  is, that  the power conferred upon the legislature to make  laws cannot be delegated by that department to any other body  or authority.   Where  the  sovereign power of  the  State  has located  the  authority, there it must remain;  and  by  the constitutional agency alone the laws must be made until  the constitution itself is changed. The power to whose judgment, wisdom,  and patriotism this high prerogative has  been  in- trusted  cannot  relieve  itself of  the  responsibility  by choosing  other agencies upon which the power shall  be  de- volved,  nor  can it substitute the  judgment,  wisdom,  and patriotism  of any other body for those to which  alone  the people have seen fit to confide this sovereign trust."       The same learned author observes thus in his wellknown book on Constitutional Law  (4th Edition, page 138):--       "No  legislative body can delegate to another  depart- ment  of  the  government, or to any  other  authority,  the power, either generally or specially, to enact (1) 20 C.L.R. 54 at 108. 819 laws.  The reason is found in the very existence of its  own powers.  This high prerogative has been intrusted to its own wisdom, judgment, and patriotism, and not to those of  other persons,  and  it will act ultra vires if it  undertakes  to delegate the trust, instead of executing it." This rule in a  broad sense involves the principle  underly- ing the maxim, delegatus non potest delegare, but it is  apt to be misunderstood and has been misunderstood. In my  judg- ment,  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  recognized both in America and  in  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  func- tions with which it is thus vested."(1)     The matter is again  dealt with by Evatt J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Neakes v. Dignan(2), in these words :-     "On  final  analysis therefore, the  Parliament  of  the Commonwealth  is not competent to ’abdicate’ its  powers  of legislation.  This  is not because Parliament  is  bound  to perform  any or all of its legislative powers or  functions, for it may elect not to do so; and not because the  doctrine of  separation of powers prevents Parliament  from  granting authority  to  other  bodies to make laws  or  bye-laws  and thereby exercise legislative power, for it does so in almost every  statute; but because each and every one of  the  laws passed  by Parliament must answer the description of  a  law upon  one or more of the subject-matters.stated in the  Con- stitution. A law by which Parliament gave all its  lawmaking authority  to  another body would be bad merely  because  it would  fail to pass the test last mentioned."  (1) 293 U.S. 421,            (2) 46 Com. L,R. 73 at 121, 820     I think that the correct legal position has been compre- hensively summed up by Lord Haldane in In re the  Initiative and Referendum Act(3):--     "No  doubt  a body, with a power of legislation  on  the subjects  entrusted  to  it so ample as that  enjoyed  by  a Provincial  Legislature in Canada, could,  while  preserving its own capacity intact, seek the assistance of  subordinate agencies,  as has been done when in Hodge v. The Queen,  the Legislature  of  Ontario was held entitled to entrust  to  a

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Board of Commissioners authority to enact regulations relat- ing  to taverns; but it does not follow that it  can  create and endow with its own capacity a new legislative power  not created by the Act to which it owes its own existence."     What 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 down any  comprehen- sive formula to define it, but it should be recognized  that the  rule against abdication does not prohibit the  Legisla- ture 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.     Having considered the three principles which are said to negative delegation of powers, I will now proceed to consid- er the argument put forward by the learned  Attorney-General that  the  power of delegation is implicit in the  power  of legislation.   This  argument is based on the  principle  of sovereignty  of the legislature within its appointed  field. Sovereignty  has been variously described by  constitutional writers,  and  sometimes  distinction   is   drawn   between legal  sovereignty  and  political sovereignty.  One of  the writers  describes it as the power to make laws and  enforce them  by means of coercion it cares to employ, and  he  pro- ceeds to say that in England the legal sovereign, i.e.,  the person  or  persons  who according to the law  of  the  land legislate  and  administer the Government, is  the  King  in Parliament, whereas the political (1) [1919] A.C. 935 at 945. 821 or  the constitutional sovereign, i.e., the body of  persons in  whom power ultimately resides, is the electorate or  the voting public(1). Dicey states that the legal conception  of sovereignty simply means the power of law making unrestrict- ed by any legal limit, and if the term "sovereignty" is thus used, the sovereign power under the English Constitution  is the  Parliament. The main attribute of such  sovereignty  is stated by him in in these words :--    "There  is no law which Parliament cannot change  (or  to put the same thing somewhat differently, fundamental or  so- called  constitutional  laws  are  under  our   Constitution changed  by  the same body and in the same manner  as  other laws, namely, by Parliament acting in its ordinary  legisla- tive  character)  and any enactment passed by it  cannot  be declared to be      void.     According  to the same writer, the characteristics of  a non-sovereign law-making body are :--( 1 ) the existence  of laws  which  such body must obey and cannot  change;(2)  the formation of a marked distinction between ordinary laws  and fundamental  laws;and  (3) the existence of some  person  or persons,  judicial  or otherwise, having authority  to  pro- nounce upon the validity or constitutionality of laws passed by  such  law-making body.  Dealing with the Indian  or  the colonial legislature, the learned writer characterizes it as a non-sovereign legislature and proceeds to observe that its authority  to make laws is as completely subordinate to  and as much dependent upon Acts of Parliament as is the power of London  and NorthWestern Railway Co. to make byelaws.   This is  undoubtedly  an overstatement and is certainly  not  ap- plicable  to  the Indian Parliament of  today.  Our  present Parliament, though it may not be as sovereign as the Parlia- ment  of  Great Britain, is certainly as  sovereign  as  the Congress  of the United States of America and  the  Legisla- tures  of other independent countries having a Federal  Con- stitution.  But what is more relevant (1) Modern Political Constitutions, by Strong.

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822 to our purpose is that Dicey himself, dealing with  colonial and  other similar legislatures, says that "they     are  in short within their own sphere copies of the Imperial Parlia- ment, they are within their own sphere sovereign bodies, but their freedom of action is controlled by their subordination to  the Parliament of the United  Kingdom."  These   remarks undoubtedly applied to the Legislative Council of 1912 which passed  the  Delhi  Laws Act, 1912, and they  apply  to  the present Parliament also with this very material modification that its freedom of action is no longer controlled by subor- dination to the British Parliament but is controlled by  the Indian Constitution.     At  this  stage, it will be useful to refer  to  certain cases  decided by the Privy Council in England in which  the question  of the ambit of power exercised by the Indian  and colonial  legislatures directly arose. The leading  case  on the  subject is Queen v. Burah(1), which has been  cited  by this court on more than one’ occasion and has been  accepted as good authority. In that case, the question arose  whether a  section of Act No. XXII of 1869 which conferred upon  the Lieutenant Governor of Bengal the power to determine whether a  law  or any part thereof should be applied to  a  certain territory  was or was not ultra vires.  While  holding  that the  impugned provision was intra vires, the  Privy  Council made  certain observations which have been quoted again  and again and deserve to be quoted once more.  Having held  that the  Indian Legislature was not a delegate of  the  Imperial Parliament  and hence the maxim, delegatus non potest  dele- gare,  did not apply (see ante for the passage dealing  with this   point),  their  Lordships  proceeded  to   state   as follows:.--     "Their  Lordships  agree that  the  Governor-General  in Council could not by any form of enactment, create in India, and  arm with general legislative authority, a new  legisla- tive  power, not created or authorized by the Councils  Act. Nothing of that kind has, in their Lordships’ opinion,  been done or attempted in the (1) 5 I.A. 178. 823 present  case.  What has been done is this.   The  Governor- General  in Council has determined, in the due and  ordinary course of legislation, to remove a particular district  from the jurisdiction of the ordinary Courts and offices, and  to place  it under new Courts and offices., to be appointed  by and responsible to the Lieutenant-Governor of Bengal,  leav- ing  it to the Lieutenant-Governor 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 public notification to that district any  law,  or part  of  a law, which either already was, or from  time  to time  might be, in force, by proper  legislative  authority, ’in the  other territories subject to his government ’." Then,  later they added : "The  proper  Legislature has exercised its judgment  as  to place, person, laws, 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.   Where plenary powers of-legislation exist as  to particular subjects, whether in an Imperial or in a  provin- cial legislature, they may (in their Lordships judgment)  be well exercised, either absolutely or conditionally.   Legis- lation,  conditional on the use of particular powers, or  on the  exercise  of  a limited discretion,  entrusted  by  the Legislature  to persons in whom it places confidence, is  no

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uncommon thing; and, in many circumstances, it may be highly convenient.  The British Statute Book abounds with  examples of  it; and it cannot be supposed that the Imperial  Parlia- ment  did  not, when constituting  the  Indian  Legislature, contemplate  this kind of conditional legislation as  within the  scope of the legislative powers which it from  time  to time conferred."     The  next  case on the subject is Russell v.  The  Queen (1).   In that case, the Canadian Temperance Act, 1878,  was challenged on the ground that it was (1) 7 App, Cas. 829. 824 ultra vires the Parliament of Canada.  The Act was    to  be brought  into force in any county or city if on vote of  the majority  of the electors of that county     city  favouring such a course, the Governor-General in Council declared  the relative part of the Act to be on force.  It was held by the Privy Council that this provision did not amount to a  dele- gation of legislative power to a majority of the voters in a city  or  county. The passage in which this is  made  clear, runs as follows:--     "The short answer to this objection is that the Act does not  delegate any legislative powers whatever.  It  contains within  itself  the whole legislation on  the  matters  with which it deals. The provision that certain parts of the  Act shall come into operation only on the petition of a majority of electors does not confer on these persons power to legis- late.  Parliament itself enacts the condition and everything which  is  to  follow upon the  condition  being  fulfilled. Conditional  legislation of this kind is in many cases  con- venient,  and is certainly not unusual, and the power so  to legislate cannot be denied to the Parliament of Canada  when he  subject  of legislation is  within  its  competency...If authority on. this point were necessary, it will be found in the case of Queen v. Burah, lately before this Board.     The same doctrine was laid down in the case of lodge  v. The  Queen (1), where the question arose as to  whether  the legislature of Ontario had or had not the power of  entrust- ing  to a local authority--the Board  of  Commissioners--the power  of  making  regulations with respect  to  the  Liquor Licence Act, 1877, which among other things created offences for the breach of hose regulations  and  annexed   penalties thereto.  their Lordships held that the Ontario  Legislature had  that power, and after reiterating that the  Legislature which  passed the Act was not a delegate, they  observed  as follows :--     "When  the British North America Act enacted that  there should be a legislature for Ontario, and that (1) 9 App. Cas. 117. 825 its legislative assembly should have exclusive authority  to make  laws for the Province and for provincial  purposes  in relation  to the matters enumerated in section 92,  it  con- ferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but  authority as  plenary  and as ample within the  limits  prescribed  by section  92 as the Imperial Parliament in the  plenitude  of its powers possessed and could bestow.  Within these  limits of  subjects and area the local legislature is supreme,  and has   the  same authority as  the  Imperial  Parliament,  or the  Parliament  of the  Dominion, would  have   had   under like   circumstances  to confide to a municipal  institution or  body of its own  creation  authority  to  make   byelaws or  resolutions as to subjects specified in  the  enactment, and with the object of carrying the enactment into operation

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and effect."     Another  case which may be usefully cited is  Powell  v. Apollo Candle Co. (1). The question which arose in that case was  whether section 133 of the Customs Regulations  Act  of 1879  of  New  South Wales was or was not  ultra  rites  the colonial legislature.  That section provided that "when  any article  of  merchandise then unknown to  the  collector  is imported,  which,  in the opinion of the  collector  or  the commissioners,  is  apparently a substitute  for  any  known dutiable  article, or is apparently designed to evade  duty, but  possesses properties in the whole or in part which  can be used or were intended to be applied for a similar purpose as such dutiable article, it shall be lawful for the  Gover- nor  to  direct that a duty be levied on such article  at  a rate  to be fixed in proportion to the degree in which  such unknown  article  approximates in its qualities or  uses  to such dutiable article." Having repelled the contention  that the  colonial  legislature was a delegate  of  the  Imperial Parliament  and  having held that it was not  acting  as  an agent  or  a delegate, the Privy Council proceeded  to  deal with the question raised in the following manner :-- (1) 10App. Cas. 282. 826     "It is argued that the tax in question has been  imposed by  the Governor, and not by the Legislature, who alone  had power  to impose it.  But the duties levied under the  Order in  Council  are really levied by the authority of  the  Act under  which the order is issued.  The Legislature  has  not parted  with its perfect control over the Governor, and  has the  power,  of  course, at any moment,  of  withdrawing  or altering the power which they have entrusted to him.   Under these circumstances their Lordships are of opinion that  the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond  the power of the Legislature."      Several other eases were cited at the Bar in which  the supremacy  of  a legislature (which  would  be  nonsovereign according to the tests laid down by Dicey) within the  field ascribed to its operation, were affirmed, but it  is  unnec- essary  to  multiply instances illustrative of that  princi- ple.  I might however quote the pronouncement of  the  Privy Council in the comparatively recent case of Shannon v. Lower Mainland Dairy Products Board (1), which runs as follows :--      "The  third  objection  is that it is  not  within  the powers  of the Provincial Legislature to delegate  so-called legislative powers to the Lieutenant-Governor in Council, or to  give  him powers of further delegation.  This  objection appears  to their Lordships subversive of the  rights  which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to  which the constitution has granted legislative powers. Within  its appointed sphere the Provincial Legislature is as supreme as any  other Parliament; and it is unnecessary to try to  enu- merate  the  innumerable occasions  on  which  Legislatures, Provincial,  Dominion  and  Imperial,  have  entrusted  var- ious  persons and bodies with similar powers to  those  con- tained in this Act."      I  must  pause here to note briefly  certain  important principles which can be extracted from the cases (1) [1938] A.C. 708 at 722. 827 decided  by  the Privy Council which I have  so  far  cited, apart from the principle that the Indian and colonial legis- latures  are supreme in their own field and that the  maxim, delegatus  non potest delegare, does not apply to them.   In

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the first place, it seems quite clear that the Privy Council never  liked  to  commit themselves to  the  statement  that delegated legislation was permissible.  It was easy for them to  have said so and disposed of the cases before them,  but they  were  at pains to show that  the  provisions  impugned before them were not instances of delegation of  legislative authority but they were instances of conditional legislation which, they thought, the legislatures concerned were  compe- tent  to enact, or that the giving of such authority as  was entrusted  in some cases to subordinate agencies was  ancil- lary  to legislation and without it "an attempt  to  provide for  varying details and machinery to carry them  out  might become oppressive or absolutely fail." They also laid  down: (1)  that  it will be not correct  to  describe  conditional legislation  and other forms of legislation which they  were called  upon  to consider in several cases which  have  been cited  as legislation through another agency.  Each  Act  or enactment which was impugned before them as being  delegated legislation,  contained within itself the whole  legislation on the matter which it dealt with, laying down the condition and  everything which was to follow on the  condition  being fulfilled;  (2) that legislative power could not be said  to have been parted with if the legislature retained its  power intact  and could whenever it pleased destroy the agency  it had  created and set up another or take the matter  directly into  its own hands; (3) that the question as to the  extent to which the aid of subordinate agencies could be sought  by the  legislatures  and as to how long they  should  continue them were matters for each legislature and not for the court of  law  to  decide; (4) that a  legislature  in  committing important regulations to others does not efface itself;  and (5)  that  the  legislature, like  the  Governor-General  in Council, could not by any form of enactment create, and  arm with legislative 828 authority, a new legislative power not created or authorised by  the Councils Act  to which it (the  Governor-General  in Council) owes its existence.     I have already indicated that the expressions "delegated legislation"  and "delegating legislative power"  are  some- times  used  in  a loose sense, and sometimes  in  a  strict sense.  These  expressions have been used in  the  loose  or popular  sense in the various treatises or  reports  dealing with  the so-called delegated legislation; and if  we  apply that sense to the facts before the Privy Council, there  can be no doubt that every one of the cases would be an instance of  delegated legislation or delegation of  legislative  au- thority.  But the Privy Council have throughout repelled the suggestion  that  the cases before them  were  instances  of delegated legislation or delegation of legislative  authori- ty. There can be no doubt that if the legislature completely abdicates  its functions and sets up a parallel  legislature transferring all its power to it, that would undoubtedly  be a real instance of delegation of its power. In other  words, there will be delegation in the strict sense if  legislative power  with  all its attributes is  transferred  to  another authority.   But  the Privy Council have repeatedly  pointed out  that  when the legislature retains its  dominant  power intact and can whenever it pleases destroy the agency it has created and set up another or take the matter directly  into its  own hands, it has not parted with its  own  legislative power.   They  have  also pointed out that the  act  of  the subordinate authority does not possess the true  legislative attribute,  if  the efficacy of the act done by  it  is  not derived from the subordinate authority but from the legisla-

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ture  by which the subordinate authority was entrusted  with the  power  to do the act.  In some of the  cases  to  which reference has been made, the Privy Council have referred  to the  nature  and principles of legislation and  pointed  out that conditional legislation simply amounts to entrusting  a limited discretionary authority to others, and that to  seek the  aid of subordinate agencies in carrying out the  object of the legislation is ancillary to legislation and properly 829 lies  within the scope of the powers which every legislature must  possess to function effectively.  There is a  mass  of literature  in  America also about  the  socalled  delegated legislation,  but if the judgments of  the eminent  American Judges are carefully studied, it will be found that,  though in  some cases they have used the expression in the  popular sense,  yet in many cases they have been as careful  as  the Privy  Council  in laying down the principles  and  whenever they  have upheld any provision impugned before them on  the ground that it was delegation of legislative authority  they have rested their conclusion upon the fact that there was in law no such delegation.     The learned Attorney-General has relied on the authority of  Evatt J. for the proposition that "the true  nature  and scope of the legislative power of the Parliament involves as part  of its content power to confer law-making  power  upon authorities other than Parliament itself"(1). It is undoubt- edly  true that a legislature which is sovereign within  its own  sphere  must  necessarily have very  great  freedom  of action,  but it seems to me that in strict point of law  the dictum  of Evatt J. is not a precise or an  accurate  state- ment. The first question which it raises is what is meant by law-making power and whether such power in the true sense of the  term can be delegated at all. Another difficulty  which it  raises is that once it is held as a general  proposition that delegation of lawmaking power is implicit in the  power of 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 whether the legislature is  competent to  delegate 1, 10 or 99 per cent of its legislative  power, and whether the strictly logical conclusion will not be that the  legislature can delegate the full content of its  power in  certain cases. It seems to me that the correct  and  the strictly  legal  way of putting the matter is as  the  Privy Council  have put it in several cases.  The  legislature  in order  to function effectively, has to call  for  sufficient data, has to (1) See the Victorian Stevedoring case: 46 Com L.R. 73. 830 legislate for the future as well as for the present and  has to  provide for a multiplicity of varying  situations  which may  be sometimes difficult to foresee. In order to  achieve its  object, it has to resort to various types and forms  of legislation, entrusting suitable agencies with the power  to fill  in  details and adapt legislation to  varying  circum- stances.   Hence, what is known as conditional  legislation, an  expression which has been very fully explained  and  de- scribed  in  a  series of judgments, and what  is  known  as subordinate  legislation,  which involves  giving  power  to subordinate  authorities  to make rules and  regulations  to effectuate the object and purpose for which a certain law is enacted,  have been recognized to be permissible  forms.  of legislation  on  the  principle that a  legislature  can  do everything which is ancillary to or necessary for  effective legislation.   Once  this is conceded, it follows  that  the legislature  can resort to any other form of legislation  on

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the  same  principle,  provided that  it  acts   within  the limits  of  its  power, whether  imposed  from   without  or conditioned by the nature of the duties    it is called upon to perform.      The conclusions at which I have arrived so far may  now be summed up :--    (1)  The legislature must normally discharge its  primary legislative function itself and not through others.      (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary  that it is free to legislate within that sphere in any way  which appears  to  it  to be the best way to give  effect  to  its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds neces- sary  for  doing things which it is unable to do  itself  or finds  it  inconvenient  to do. In other words,  it  can  do everything which is ancillary to and necessary for the  full and effective exercise of its power of legislation.      (3)  It cannot abdicate its legislative functions,  and therefore while entrusting power to an outside 831 agency, it must see that such agency, acts as a  subordinate authority and does not become a parallel legislature.     (4)  The doctrine of separation of powers and the  judi- cial  interpretation it has received in America  ever  since the  American Constitution was framed, enables the  American courts  to  check  undue and excessive  delegation  but  the courts  of this country are not committed to  that  doctrine and  cannot apply it in the same way as it has been  applied in  America.  Therefore, there are only two main  checks  in this  country on the power of the legislature  to  delegate, these being its good sense and the principle that it  should not  cross  the  line beyond  which  delegation  amounts  to "abdicacation and self-effacement".     I  will now deal with the three specific questions  with which  we  are concerned in this Reference, these  being  as follows :--     (1) 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 ?     (2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, 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 ?     (3) Is section 2 of the Part C States (Laws) Act,  1950, or  any of the provisions thereof and in what particular  or particulars or to what extent ultra vires the Parliament ?     Before attempting to answer these questions, it will  be Useful to state briefly a few salient facts about the compo- sition  and power of the Indian Legislature at the dates  on which  the  three Acts in question were passed.  It  appears that  formerly  it was the executive  Government  which  was empowered  to make regulations and ordinances for "the  good government  of  the factories and  territories  acquired  in India",  and up to 1833, the laws used to be passed  by  the Governor  General in Council or by the Governors  of  Madras and 832 Bombay  in  Council,  in the form of  regulations.   By  the Charter  Act  of 1833, the  Governor-General’s  Council  was extended  by the inclusion of a fourth member  who  was  not entitled  to sit or vote except at meetings for making  laws and  regulations.   The Governor General in Council  was  by this  Act  empowered to make laws and  regulations  for  the

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whole  of India and the legislative powers which  vested  in the  Governors of Madras and Bombay were  withdrawn,  though they were allowed to propose draft schemes.  The Acts passed by the Governor-General in Council  were required to be laid before the British Parliament and they were to have the same force as an Act of Parliament.  In 1853, the strength of the Council of the Governor-General was further increased to  12 members,  by  including  the fourth member  as  an  ordinary member and 6 special members for the purpose of  legislation only.   Then  came the Councils Act of 1861,  by  which  the power of legislation was restored to the Governors of Madras and  Bombay  in Council, and a legislative council  was  ap- pointed for Bengal; but the Governor-General in Council  was still  competent to exercise legislative authority over  the whole of India and could make laws for "all persons and  all places and things", and for legislative purposes the Council was  further  remodelled so as to include 6  to  12  members nominated  for a period of 2 years by the  Governor-General, of whom not less than one-half were to be non-officials.  In this Council, no measure relating to certain topics could be introduced without the sanction of the Governor-General, and no law was to be valid until the Governor-General had  given his assent to it and the ultimate power of disallowing a law was reserved to the Crown.  Further, local legislatures were constituted for Madras and Bombay, wherein half the  members were to be non-officials nominated by the Governors, and the assent  of  the Governor as well as that  of  the  Governor- General was necessary to give validity to any law passed  by the  local legislature.  A similar legislature was  directed to be constituted for the lower Provinces of Bengal, 833 and powers were given to constitute legislative councils for certain  other Provinces.  In 1892, the Indian Councils  Act was  passed, by which the legislative councils were  further expanded and certain fresh rights were given to the members. In  1909,  came  the  MorleyMinto  scheme  under  which  the strength  of  the legislative council was increased  by  the inclusion  of 60 additional members of whom 27 were  elected and 33 nominated.  Soon after this, in 1912, the Delhi  Laws Act  was  passed,  and the points which may  be  noticed  in connection  with  the legislature which functioned  at  that time  are:  firstly, within its ambit, its  powers  were  as plenary  as those of the legislature of 1861,  whose  powers came  up for consideration before the Privy Council  in  Bu- rah’s case, and secondly, considering the composition of the legislative  council  in  which  the  non-official  and  the executive  elements predominated, there was no room for  the application  of the doctrine of separation of powers in  its full  import,  nor could it be said that by reason  of  that doctrine the legislature could not invest the GovernorGener- al with the powers which we find him invested with under the Delhi  Laws Act.  It should be stated that in section  7  of that  Act as it originally stood, the  Governor-General  was mentioned as the authority who could by notification  extend any  enactment  which was in force in any  part  of  British India  at  the date of such  notification,  The  "Provincial Government"  was  substituted  for  the   "Governor-General" subsequently.     Coming  to  the second Act,  namely,  the  Ajmer-Merwara (Extension  of  Laws) Act, 1947, we find that  when  it  was enacted on the 31st December,  1947, the Government of India Act,  1935, as adapted by the India  (Provisional  Constitu- tion) Order, 1947, issued under the Indian Independence Act, 1947, was in force. Under that Act, there were three  Legis- lative Lists, called the Federal, Provincial and  Concurrent

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Legislative  Lists. Lists I and II contained a list of  sub- jects  on which the Central Legislature and  the  Provincial Legislature  could  respectively  legislate,  and  List  III contained subjects on which both the Central and the 834 Provincial  Legislatures could legislate. Section 100(4)  of the Act provided that "the Dominion Legislature has power to make laws with’ respect to matters enumerated in the Provin- cial  Legislative  List except for a Province  or  any  part thereof."  Section 46 (3) stated that the  word  "Province", unless  the context otherwise required,  meant a  Governor’s Province.  Therefore, section 100 (4) read with the  defini- tion  of "Province", empowered the Dominion  Legislature  to make  laws  with respect to subjects mentioned  in  all  the three  Lists for Ajmer-Merwara, which was not  a  Governor’s Province.  The  Central Legislature was  thus  competent  to legislate for Ajmer-Merwara in regard to any subject, and it had  also  plenary powers in the  entire  legislative  field allotted  to it.  Further, at the time the Act  in  question was  passed,  the Dominion Legislature  was   simultaneously functioning as the Constituent Assembly and had the power to frame the Constitution.     The  third  Act with which we are concerned  was  passed after the present Constitution had come into force.  Article 245  of  the  Constitution lays down that  "subject  to  the provisions  of this Constitution, Parliament may  make  laws from  the whole or any part of the territory of  India,  and the  Legislature of a State may make laws for the  whole  or any part of the State." On the pattern of the Government  of India  Act, 1935, Lists I and II in the Seventh Schedule  of the Constitution enumerate the subjects on which the Parlia- ment and the State Legislatures can respectively  legislate, while List 11 enumerates subjects on which both the  Parlia- ment and the State Legislatures can legislate. Under article 246 (4), "Parliament has power to make laws with respect  to any  matter for any part of the territory of India  not  in- cluded  in Part A or Part B of the First  Schedule  notwith- standing  that  such matter is a matter  enumerated  in  the State  List." The points to be noted in connection with  the Part C States (Laws) Act, 1950, are :--     (1)  The present Parliament derives its  authority  from the Constitution which has been framed by the 835 people of India through their Constituent Assembly, and  not from any external authority, and within its own field it  is as supreme as the legislature of any other country  possess- ing a written federal Constitution.     (2)  The Parliament has full power to legislate for  the Part C States in regard to any subject.     (3)  Though there is some kind of separation of  govern- mental  functions  under the Constitution, yet  the  Cabinet system,  which  is the most notable  characteristic  of  the British  Constitution,  is also one of the features  of  our Constitution and the doctrine of separation of powers, which never acquired that hold or significance in this country  as it has in America, cannot dominate the interpretation of any of the Constitutional provisions.     I  may  here refer to an argument which  is  founded  on articles  353 (b) and 357 (a) and (b) of  the  Constitution. Under  article 353 (b), when a Proclamation of Emergency  is made by the President-     "  the power of Parliament to make laws with respect  to any  matter  shall  include power to  make  laws  conferring powers and imposing duties, or authorising the conferring of powers  and  the  imposition of duties, upon  the  Union  or

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officers  and  authorities  of the Union  as  respects  that matter, notwithstanding that it is one which is not  enumer- ated in the Union List."     Under article 357, when there is a failure of  constitu- tional machinery in a State, "it shall be competent--     (a) for Parliament to confer on the President the  power of the Legislature of the State to make laws, and to  autho- rise  the President to delegate, subject to such  conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf;     (b)  for Parliament, or for the President or  other  au- thority  in  whom such power to make laws  is  vested  under sub-clause (a), to make laws conferring powers and  imposing duties, or authorising the Conferring of 108 836 powers  and  the  imposition of duties, upon  the  Union  or officers and authorities thereof.     In  both these articles, the power of delegation is  ex- pressly  conferred, and it is argued that if delegation  was contemplated in normal legislation, there would have been an express power given to the’ Parliament, similar to the power given in articles 353(b) and 357(a) and (b). In other words, the  absence  of an express provision has been  used  as  an argument  for  absence of the power to delegate.  It  should however  be noticed that these are emergency provisions  and give no assistance in deciding the question under considera- tion. So far as article 353(b) is concerned, it is enough to say  that a specific provision was necessary to empower  the Parliament  to make laws in respect of matters  included  in the  State List upon which the Parliament was not  otherwise competent  to legislate. When the Parliament  was  specially empowered  to  legislate in a field in which  it  could  not normally legislate, it was necessary to state all the powers it could exercise. Again, article 357(a) deals with complete transfer of legislative power to the President, while clause (b) is incidental to the powers conferred on the  Parliament and the President to legislate for a State in case of  fail- ure of constitutional machinery in that State. These  provi- sions  do not at all bear out the conclusion that is  sought to  be  drawn from them. Indeed, the  Attorney-General  drew from  them  the opposite inference, namely,  that  by  these provisions  the  Constitution-makers  have  recognized  that delegation  of power is permissible on occasions when it  is found  to  be  necessary. In my opinion,  neither  of  these conclusions can be held to be sound.       I will now deal with the three provisions in regard to which the answer is required in this Reference. They are  as follows:-- Section 7 of the Delhi Laws Act, 1912.       "The Provincial Government may, by notification in the official gazette, extend with such restrictions and  modifi- cations  as  it thinks fit to the Province of Delhi  or  any part thereof, any enactment which is in 837 force  in  any  part of British India at the  date  of  such notification."     Section 2 of the Ajmer-Merwara (Extension of Laws). Act, 1947.     "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 of the Part C States (Laws) Act, 1950.

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   "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  amend- ment  of  any corresponding law (other than a  Central  Act) which  is  for  the time being applicable  to  that  Part  C State."     At  the first sight, these provisions appear to be  very wide, their most striking features being these :--     1.   There  is no specification in the Act by way  of  a list  or schedule of the laws out of which the selection  is to  be made by the Provincial or the Central Government,  as the case may be, but the Government has been given  complete discretion to adopt any law whatsoever passed in any part of the country, whether by the Central or the Provincial Legis- lature.     2.   The provisions are not confined merely to the  laws in existence at the dates of the enactment of these Acts but extend to future laws also.     3.  The Government concerned has been empowered not only to  extend  or  adopt the laws but also  to  introduce  such restrictions and modifications as it thinks fit; and in  the Part C States (Laws) Act, 1950, power has been given to  the Central  Government  to make a provision  in  the  enactment extended  under the Act for the repeal or amendment  of  any corresponding law 838 (other  than  a  Central Act) which is for  the  time  being applicable to the Part C State concerned.     There  can be no doubt that the powers which  have  been granted  to the Government are very extensive and the  three Acts go farther than any Act in England or America, but,  in my judgment, nothwithstanding the somewhat unusual  features to which reference has been made, the provisions in question cannot be held to be invalid.      Let us overlook for the time being the power to  intro- duce modifications with which I shall deal later, and  care- fully  consider the main provision in the three  Acts.   The situation with which the respective legislatures were  faced when  these  Acts were passed, was that there  were  certain State or States with no local legislature and a whole bundle of  laws  had to be enacted for them. It is clear  that  the legislatures  concerned,  before passing the  Acts,  applied their mind and decided firstly, that the situation would  be met  by the adoption of laws applicable to the  other  Prov- inces  inasmuch  as they covered a wide  range  of  subjects approached  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 not go beyond those for which  laws  had already been framed by the various legislatures, and second- ly,  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 Acts so enacted was a complete law, because  it  em- bodied  a policy, defined a standard, and directed  the  au- thority  chosen to act within certain prescribed limits  and not to go beyond them. Each Act was a complete expression of the  will of the legislature to act in a particular way  and of its command as to how its will should be carried out. The legislature  decided that in the circumstances of  the  case that was the best way to legislate on the subject and it  so

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legislated.  It will be a misnomer to describe such legisla- tion as amounting to abdication of powers, because from  the very nature of the legislation 839 it  is  manifest that the legislature had the power  at  any moment  of withdrawing or altering any power with which  the authority  chosen was entrusted, and could change or  repeal the laws which the authority was  required to make  applica- ble  to  the State or States concerned. What  is  even  more important  is that in each case the agency selected was  not empowered to enact laws, but it could only adapt and  extend laws  enacted  by responsible  and  competent  legislatures. Thus,  the power given to the Governments in those Acts  was more  in  the nature of ministerial than in  the  nature  of legislative power. The power given was ministerial,  because all that the Government had to do was to study the laws  and make selections out of them.     That such legislation  is neither unwarranted on princi- ple nor without precedent, will be clear from what follows:-     1.   The facts of the case of Queen v. Burah(1)  are  so familiar  that  they  need not be reproduced,  but  for  the purpose of understanding the point under discussion, it will be  necessary to refer to section 8 of Act XXII of 1869  and some of the observations of the Privy Council which obvious- ly bear on that section.  The section runs as follows :--     "The said Lieutenant-Governor may from time to time,  by notification  in  the Calcutta Gazette, extend to  the  said territory  any law, or any portion of any law, now in  force in the other territories subject to his Government, or which may  hereafter  be enacted by the Council of  the  Governor- General,   or  of the said Lieutenant-Governor,  for  making laws  and  regulations,  and may on  making  such  extension direct  by whom any powers or duties incident to the  provi- sions so extended shall be exercised or performed, and  make any  order which he shall deem requisite for  carrying  such provisions into operation."     In  their judgment, the Privy Council do not quote  this section,  but evidently they had it in mind when  they  made the following observations :-- (1) 5 I.A. 178. 840      "The  legislature  determined that, so far,  a  certain change should take place; but that it was expedient to leave the  time and the manner, of carrying it into effect to  the discretion  of the Lieutenant-Governor; and also,  that  the laws  which were or might be in force in the other  territo- ries 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 not 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."      The  language  used here can be easily adapted  in  the following manner so as to cover the laws in question:--      "The legislature determined that  ..........  the  laws which   were   or   might  be  in   force   in   the   other territories  .......   (omitting the words "subject  to  the same  Government" for reasons to be stated  presently)  were such  as it might be fit and proper to apply to  this  State also;  but that, as it was not 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 Central or Provincial Government."      It  seems to me that this line of reasoning fully  fits in  with the facts before us.  The words  "territories  sub-

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ject to the same Government" are not in my opinon  material, because  in Burah’s case only such laws as were in force  in the other territories subject to the same Government were to be  extended.  We are not to lay undue emphasis on  isolated words  but look at the principle underlying the decision  in that case. In the Delhi Laws Act as originally enacted,  the agency which was to adapt the laws was the Governor General. In  the other two Acts, the agency was the  Central  Govern- ment.  In 1912, the Governor-General exercised  jurisdiction over the whole of the territories the laws of which were  to be adapted for Delhi. The same remark applies to the Central Government,  while  dealing with the other two Acts.   As  I have already 841 stated,  Burah’s  case has been accepted by  this  Court  as having been correctly decided, and we may well say that  the impugned  Acts are mere larger editions of Act XXII of  1869 which was in question in Burah’s case.     2. It is now well settled in England and in America that a  legislature  can pass an Act to allow a Government  or  a local body or some other agency to make regulations consist- ently  with  the provisions of the Act. At no stage  of  the arguments,  it  was contended before us that  such  a  power cannot  be granted by the legislature to another  body.   We have  known  instances in which regulations have  been  made creating offences and imposing penalties and they have  been held to be valid. It seems to me that the making of many  of these regulations involves the exercise of much more  legis- lative power and discretion than the selection of  appropri- ate  laws out of a mass of ready-made enactments.  The  fol- lowing  observations  in a well-known American  case,  which furnish  legal  justification for empowering  a  subordinate authority to make regulations, seem to me pertinent :-     "It  is  well  settled that the delegation  by  a  State legislature  to  a  municipal corporation of  the  power  to legislate,  subject to the paramount law,  concerning  local affairs, does not violate the inhibition against the delega- tion of the legislative function.     It  is a cardinal principle of our system of  government that  local affairs shall be managed by  local  authorities, and  general  affairs by the central authority,  and  hence, while  the rule is also fundamental that the power  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  of  general legislative power, but rather  as  the grant  of  the  authority to  prescribe  local  regulations, according to immemorial practice, subject, of course, to the interposition  of the superior in cases of necessity."  (Per Fuller J. in Stoutenburgh v. Hennick(1). (1) (1889) 129 U.S. 141. 842      3. A point which was somewhat similar to the one raised before us arose in the case of Sprigg v. Sigcau(1). In  that case,  section 2 of the Pondoland Annexation Act, 1894,  was brought  into question.  That section gave authority to  the Governor to add to the existing laws in force in the  terri- tories  annexed, such laws as he shall from time to time  by Proclamation  declare  to be in force in  such  territories. Dealing  with this provision, the Privy Council observed  as follows :-      "The legislative authority delegated to the Governor by the  Pondoland Annexation Act is very cautiously  expressed, and  is very limited in its scope.  There is not a  word  in the Act to suggest that it was intended to make the Governor

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a dictator, or even to clothe him with the full  legislative powers of the Cape Parliament. His only authority, after the date  of the Act, is to add to the laws, statutes and  ordi- nances  which had already been proclaimed and were in  force at its date, such laws, statutes and ordinances as he ’shall from time to time by proclamation declare to be in force  in such territories’.  In the opinion of their Lordships, these words  do not import any power in the Governor to make  "new laws" in the widest sense of that term; they do no more than authorise  him  to transplant to the  new  territories,  and enact  there,  laws, statutes and ordinances  which  already exist,  and are operative in other parts of the  Colony.  It was  argued for the appellant that the expression "all  such laws made" occurring in the proviso, indicates authority  to make  new laws which are not elsewhere in force;  but  these words cannot control the plain meaning of the enactment upon which  they  are a proviso; and, besides that  enactment  is left to explain the meaning of the proviso by the  reference back which is implied in the word "such" (pp. 247-8).      Following  the line of reasoning in the case cited,  it may  be  legitimately stated that what the  Central  or  the Provincial Government has been asked to do under the Acts in question  is not to enact "new laws" but to  transplant"  to the territory concerned laws operative (1) [1897] A.C. 238, 843 in  other parts of  the country.  I notice that in section 2 of  the Pondoland Annexation Act, 1894, there was a  proviso requiring  that  "all such laws made under or by  virtue  of this  Act shall be ]aid before both    Houses of  Parliament within  fourteen days after the beginning of the Session  of Parliament next after the proclamation thereof as aforesaid, and  shall be effectual, unless in so far as the same  shall be repealed, altered, or varied by Act of Parliament."  This provision  however  does not affect the principle.   It  was made only as a matter of caution and to ensure the  superin- tendence  of Parliament, for  the laws were good laws  until they were repealed, altered or varied by Parliament.  If the Privy  Council have correctly stated the principle that  the legislature in enacting subordinate or conditional  legisla- tion  does  not part with its perfect control  and  has  the power  at  any moment of withdrawing or altering  the  power entrusted to another authority, its power of superintendence must be taken to be implicit in all such legislation. Refer- ence  may also be made here to the somewhat unusual case  of Dorr v. United States(1), where delegation by Congress to  a commission appointed by the President of the power to legis- late for the Phillipine Islands was held valid. 4.    There are also some American cases in which the adopt- ing  of a law or rule of another jurisdiction has been  per- mitted, and one of the cases illustrative of the rule is  Re Lasswell(2), where a California Act declaring the  existence of an emergency and providing that where the Federal author- ities fixed a Code for the government of any industry,  that Code  automatically  became  the State  Code  therefor,  and fixing a penalty for violation of such Codes, was held to be constitutional and valid, as against the contention that  it was an unlawful delegation of authority by the State  legis- lature  to  the Federal government  and  its  administrative agencies.  This  case has no direct bearing  on  the  points before us, but it shows that application of laws made (1)  (1904) 195 U.S. 138.    (2) (1934) 1 Cal.  Appl.  (2d), 183. 109 844 by  another  legislature has in some cases been held  to  be

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permissible.     5.  There  are many enactments in India, which  are  not without  their  parallel in England, in which it  is  stated that  the  provisions of the Act concerned  shall  apply  to certain  areas  in the first instance and that they  may  be extended by the Provincial Government or appropriate author- ity to the whole or any part of a Province.  The Transfer of Property  Act,  1882, is an instance of such  enactment,  as section 1 thereof provides as follows :--     "It  (the Act) extends in the first instance to all  the Provinces of India except Bombay, East Punjab and Delhi.     But this Act or any part thereof may by notification  in the official Gazette be extended to the whole or any part of the said Provinces by the Provincial Government concerned."     It  is obvious that if instead of making similar  provi- sions in 50 or more Acts individually, a single provision is made  in any one Act enabling the Provincial Governments  to extend all or any of the 50 or more Acts, in which provision might  have been but has not been made for extension to  the whole or any part of the Provinces concerned there would  be no difference in principle between the two alternatives.  It was  pointed  out to us that in the Acts with which  we  are concerned,  power has been given to extend not only Acts  of the Central Legislature, which is the author of the Acts  in question, but also those of the Provincial Legislatures. But it seems to me that the distinction so made does not  affect the principle involved. The real question is: Can  authority be given by a legislature to an outside agency, to extend an Act  or  series of Acts to a particular area ?  This  really brings  us back to the principle of conditional  legislation which  is too deeply rooted in our legal system to be  ques- tioned now.     6.  Our  attention has been drawn to several Acts   con- taining provisions similar  to  the  Acts 845 which  are  the subject  of the Reference,   these being :--    1. Sections 1 and 2 of Act I of 1865.     2.  Sections 5 and 5A of the Scheduled  Districts   Act, 1874 (Act XIV of 1874).     3. The Burma Laws Act, 1898 (Act XIII of 1898).  section 10 (1).     4. Section 4 of the Foreign Jurisdiction Act, 1947  (Act XLVII of 1947).     The Merchant Shipping Laws (Extension to Acceding States and Amendment) Act, 1949 (Act XVIII of 1949), section 4.     The relevant provisions of two of these Acts, which were passed before the Acts in question, may be quoted, to  bring out the close analogy. The Scheduled Districts Act, 1874. 5.  "The Local Government, with the previous sanction of the Governor-General  in  Council,  may, from time  to  time  by notification  in the Gazette of India and also in the  local Gazette (if any), extend to any of the Scheduled  Districts, or to any part of any such District, any enactment which  is in  force in any part of British India at the date  of  such extension."   5A.  In declaring an  enactment in force in a  Scheduled District or part thereof under section 3 of this Act, or  in extending  an  enactment  to a Scheduled  District  or  part thereof  under section 5 of this Act, the  Local  Government with the previous sanction of the Governor-General in  Coun- cil,  may declare the operation of the enactment to be  sub- ject to such restrictions and modifications as that  Govern- ment think fit."

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The Burma Laws Act, 1898.     10(1). "The Local Government, with the previous sanction of the Governor-General in Council, may, by notification  in the Burma Gazette, extend, with such restrictions and  modi- fications  as  it  thinks fit, to all or  any  of  the  Shan States, or to any specified local area in the Shan State any enactment which is in force 846 in any part of Upper Burma at the  date of the extension." It  is hard to say that any firm legislative  practice   had been established before the Delhi Laws Act and other Acts we are  concerned with were enacted, but one may  presume  that the  legislature  had made several  experiments  before  the passing  of these Acts and found that they had  worked  well and achieved the object for which they were intended. I   will now deal with the power of modification  which  de- pends  on the meaning of the words "with such  modifications as it thinks fit."  These are not unfamiliar words and  they are often used by careful draftsmen to enable laws which are applicable  to  one place or object to be so adapted  as  to apply  to another.  The power of introducing  necessary  re- strictions  and modifications is incidental to the power  to apply  or  adapt the law, and in the context  in  which  the provision  as  to modification occurs, it  cannot  bear  the sinister  sense attributed to it.  The modifications are  to be  made within the framework of the Act and they cannot  be such as to affect its identity or structure or the essential purpose  to be served by it. The power to  modify  certainly involves a discretion to make suitable changes, but it would be  useless  to give an authority the power to adapt  a  law without  giving it the power to make suitable  changes.  The provision  empowering an extraneous authority  to  introduce modifications  in  an Act has been nicknamed in  England  as "Henry VIII clause", because that monarch is regarded  popu- larly  as the personification of executive  autocracy.   Sir Thomas Carr, who bad considerable experience of dealing with legislation  of the character we are concerned with,  refers to  "Henry VIII clause" in this way in his book  "Concerning English Administrative Law" at page 44:--      "Of  all the types of orders which alter statutes,  the so-called ’Henry VIII clause’ sometimes inserted in big  and complicated  Acts, has probably caused the greatest  flutter in England.  It enables the Minister 847 by  order to modify the Act itself so far as  necessary  for bringing  it into operation.  Any one who will look  to  see what  sort  of orders have been made under this  power  will find  them surprisingly innocuous.  The  device is partly  a draftsman’s  insurance  policy, in case  he  has  overlooked something,  and is partly due to the immense body  of  local Acts in England creating special difficulties in  particular areas.   These  local Acts are very hard to trace,  and  the draftsman could never be confident that he has examined them all in advance.  The Henry VIII clause ought, of course,  to be effective for a short time only."     It  is to be borne in mind that the discretion given  to modify  a statute is by no means absolute or irrevocable  in strict  legal sense, with which aspect alone we are  princi- pally concerned in dealing with a purely legal question.  As was  pointed out by Garth C.J. in Empress v.  Burah(1),  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,  or otherwise than  in  accordance with  its  intentions,  or if, having  been  exercised,  the result  is  in  any degree inconvenient, it  can  always  by

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another   Act   recall   its   powers,   or   rectify    the inconvenience."  The learned Chief Justice, while  referring to  the  Civil Procedure Code of 1861, pointed out  that  it went  further than the Act impugned before him, because  "it gave  the Local Governments a power to alter or  modify  the Code in any way they might think proper, and so as to intro- duce  a different law into their respective  Provinces  from that  which  was  in force  in  the  Regulation  Provinces." Nevertheless, the Privy Council considered the Civil  Proce- dure Code of 1861 to be a good example of valid  conditional legislation.  In the course of the arguments, we  were  sup- plied with a list of statutes passed by the Central and some of the Provincil Legislatures giving express power of  modi- fication to certain authorities, and judging from the number of instances included in it, it is not an unimpressive list. A few of the Acts which may be mentioned by (1) I.L.R. S  Cal. 63 at 140. 848 way of illustration are:  The Scheduled Districts Act, 1874, The Burma Laws Act, 1898, The Bombay Prevention of Prostitu- tion  Act,  1928,  The Madras City  Improvement  Trust  Act, 1945, The Madras Public Health Act, 1939, U.P. Kand  Revenue Act, 1901. There are also many instances of such legislation in   England, of which only a few may be mentioned below  to show  that such Acts are by no means confined to this  coun- try.      In 1929, a Bill was proposed to carry out the policy of having fewer and bigger local authority in Scotland.  During the debate, it was suddenly decided to create a new kind  of body called the district council. There was no time to  work out  details for electing the new district councillors,  and the Bill therefore applied to them the statutory  provisions relating  to  the election of county  councillors  in  rural areas "subject to such modifications and adaptations as  the Secretary of State may by order prescribe."       In  1925, the Parliament passed the Rating and  Valua- tion Act, and section 67 thereof provided that if any diffi- culty arose in connection with its application to any excep- tional area, or the preparation of the first valuation  list for  any area, the Minister "may by order remove the  diffi- culty."   It  was  also provided that "any  such  order  may modify  the provisions of this Act so far as may  appear  to the  Minister necessary or expedient for carrying the  order into effect."       In 1929, a new Local Government Bill was introduced in Parliament,  and  section  120 thereof  provided  that  "the Minister may make such order for removing difficulties as he may judge necessary..........  and any such order may modify the provisions of this Act."       Section 1(2) of the Road Transport Lighting Act, 1927, provided  that" the Minister of Transport may exempt  wholly or partially, vehicles of particular kinds from the require- ments of the Act," and sub-section (3) empowered him to "add to or vary such requirements" by regulations. 849     By section 1 of the Trade Boards Act, 1918, "the  Minis- ter  of Labour may, by special order, extend the  provisions of  the Trade Boards Act, 1909, to new trades.........   and may alter or amend the Schedule to the Act." The    Unemployment   Insurance   Act,   1920,    by    sec- tion 45 provided that "if any difficulty arises with respect to   the   constitution   of   special   or    supplementary schemes.........   the Minister of Labour.........   may  by order  do anything which appears to him to be  necessary  or expedient.........  and any such order may modify the provi-

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sions of this Act.........  "     Similar instances may be multiplied, but that will serve no  useful purpose. The main justification for  a  provision empowering modifications to be made, is said to be that, but for  it, the Bills would take longer to be made  ready,  and the  operation of important and wholesome measures would  be delayed, and that once the Act became operative, any  defect in its provisions cannot be removed until amending  legisla- tion  is  passed. It is also pointed out that the  power  to modify  within certain circumscribed limits does not  go  as far as many other powers which are vested by the legislature in high officials and public bodies through whom it  decides to act in certain matters. It seems to me that it is now too late  to  hold that the Acts in question  are  ultra  vires, merely because, while giving the power to the Government  to extend an Act, the legislatures have also given power to the Government to subject it to such modifications and  restric- tions  as  it thinks fit.  It must, however,  be  recognised that what is popularly known as the "Henry VIII clause"  has from time to time provoked unfavourable comment in  England, and the Committee on Ministers’ Powers, while admitting that it must be occasionally used, have added:" ....... we  are  clear in our opinion, first, that the  adoption  of such  a  clause ought on each occasion when it  is,  on  the initiative  of the Minister in charge of the Bill,  proposed to Parliament to be justified by him up to the essential. It can only be essential for the limited purpose of 850 bringing an Act into operation and it should accordingly  be in most precise language restricted to those purely  machin- ery arrangements vitally requisite for that purpose;and  the clause  should always contain a  maximum time limit  of  one year  after which the powers should lapse. If in  the  event the  time  limit proves too  short--which  is  unlikely--the Government  should then come back to Parliament with  a  one clause  Bill  to extend it." It may also be stated  that  in England  "delegated legislation" often requires the  regula- tions  or  provisions made by the delegate authority  to  be laid before the Parliament either in draft form or with  the condition  that  they are not to operate  till  approved  by Parliament or with no further direction. The Acts before  us are certainly open to the comment that this valuable   safe- guard has not been observed, but it seems to me that however desirable  the  adoption of this safeguard and  other  safe- guards  which have been suggested from time to time may  be, the  validity  of the Acts, which has to  be  determined  on purely  legal  considerations, cannot be affected  by  their absence.      I  will  now deal with section 2 of the Part  C  States (Laws) Act, 1950, in so far as it gives power to the Central Government  to  make a provision in the  enactment  extended under the Act for the repeal or amendment of any correspond- ing law which is for the time being applicable to the Part C State concerned.  No doubt this power is a far-reaching  and unusual one, but, on a careful analysis, it will be found to be  only a concomitant of the power of  transplantation  and modification. If a new law is to be made applicable, it  may have to replace some existing law which may have become  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 cease to apply.  The  nearest parallel  that I can find to this provision, is to be  found in  the  Church of England Assembly (Powers) Act,  1919.  By that  Act,  the  Church Assembly  is  empowered  to  propose legislation  touching  matters  concerning  the  Church   of

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England, and 851 the legislation proposed may extend to the repeal or  amend- ment of Acts of Parliament including the Church Assembly Act itself.  It should however be noticed that it is  not  until Parliament itself gives it legislative  force on an affirma- tive  address  of each House that the measure  is  converted into legislation. There is thus no real analogy between that Act and the Act before us. However, the provision has to  be upheld,  because, though it goes to the farthest limits,  it is  difficult  to hold that it was beyond the  powers  of  a legislature  which is supreme in its own field; and  all  we can  say  is what Lord Hewart said in King  v.  Minister  of Health(1),  namely, that the particular Act may be  regarded as "indicating the high water-mark of legislative provisions of  this character," and that, unless the  legislature  acts with restraint, a stage may be reached when legislation  may amount to abdication of legislative powers.     Before I conclude, I wish to make a few general observa- tions  here on the  subject  of "delegated legislation"  and its  limits, using the expression once again in the  popular sense.  This  form of legislation has become  a  present-day necessity,  and it has come to stay--it is  both  inevitable and indispensable.  The legislature has now to make so  many laws  that it has no time to devote to all  the  legislative details, and sometimes the subject on which it has to legis- late is of such a technical nature that all it can do is  to state  the  broad  principles and leave the  details  to  be worked out by those who are more familiar with the  subject. Again, when complex schemes of reform are to be the  subject of legislation, it is difficult to bring out a selfcontained and  complete Act straightaway, since it is not possible  to foresee  all  the contingencies and envisage all  the  local requirements  for which provision is to be made. Thus,  some degree  of  flexibility becomes necessary, so as  to  permit constant adaptation to unknown future conditions without the necessity  of having to amend the law again and  again.  The advantage  of such a course is that it enables the  delegate authority  (1) [1927] 2 K B. 229 at 236. 110 852 to  consult interests likely to be affected by a  particular law, make actual experiments when necessary, and utilize the results  of its investigations and experiments in  the  best way  possible. There may also arise emergencies  and  urgent situations  requiring prompt action and the  entrustment  of large  powers to authorities who have to deal with the  var- ious  situations  as they arise. There are examples  in  the Statute  books  of England and other countries, of  laws,  a reference  to which will be sufficient to justify  the  need for  delegated  legislation.   The  British  Gold   Standard (Amendment)  Act, 1931, empowered the Treasury to  make  and from time to time vary orders authorising the taking of such measures in relation to the Exchanges and otherwise as  they may  consider expedient for meeting difficulties arising  in connection  with  the suspension of the Gold  Standard.  The National  Economy  Act,  1931, of  England,  empowered  "His Majesty  to  make Orders in Council effecting  economies  in respect  of  the  services specified in  the  schedule"  and proved that the Minister designated in any such Order  might make regulations for giving effect to the Order.  The  Food- stuffs  (Prevention of Exploitation) Act,  1931,  authorised the Board of Trade to take exceptional measures for prevent- ing  or remedying shortages in certain articles of food  and drink. It is obvious that to achieve the objects which  were

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intended  to be achieved by these Acts, they could not  have been  framed in any other way than that in which  they  were framed.  I have referred to these instances to show that the complexity of modern administration and the expansion of the functions  of  the State to the economic and  social  sphere have rendered it necessary to resort to new forms of  legis- lation  and  to give wide powers to various  authorities  on suitable  occasions.  But while emphasizing that  delegation is in these days inevitable, one should not omit to refer to the  dangers attendant upon the injudicious exercise of  the power  of  delegation by the legislature.  The  dangers  in- volved  in defining the delegated power so loosely that  the area it is intended to cover cannot be clearly  ascertained, and in giving 853 wide  delegated powers to executive authorities and  at  the same  time depriving a citizen of protection by  the  courts against  harsh and unreasonable exercise of powers, are  too obvious to require elaborate discussion.     For the reasons I have set out, I hold that none of  the provisions  which  are the subject of  the  three  questions referred  to us by the President is ultra vires and I  would answer those questions accordingly.     PATANJALI SASTRI J.--The President of India by an order, dated  the 7th January, 1951, has been pleased to  refer  to this Court, under article 14:3 (1) of the Constitution,  for consideration and report the following questions:     1.  Was section 7 of the Delhi Laws Act, 1912, or any of the  provisions thereof and in what -particular or  particu- lars  or  to what extent ultra vires the  legislature  which passed the said Act ?     2.  Was the Ajmer-Merwara (Extension of Laws) Act, 1947, 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 ?    3.   Is section 2 of the Part C States (Laws) Act,  1950, or  any of the provisions thereof and in what particular  or particulars or to what extent ultra rites the Parliament ?     The reasons for making the reference are thus set out in the letter of reference: "And  whereas  the Federal Court of India in  Jatindra  Nath Gupta  v. The Province of Bihar(1) held by a  majority  that the  proviso  to sub-section (3) of section 1 of  the  Bihar Maintenance  of Public Order Act, 1947, was ultra vires  the Bihar  Legislature  inter alia on the ground that  the  said proviso  conferred  power on the  Provincial  Government  to modify  an  act  of  the  Provincial  Legislature  and  thus amounted to a delegation of legislative power; And whereas as a result of the said decision of the  Federal Court,  doubts  have arisen regarding (1) [1949-50] F.C.R. 595. 854 the  validity  of section 7 of the Delhi  Laws   Act,  1912, section  2  of the Ajmer-Merwara (Extension  of  Laws)  Act, 1947,  and section 2 of the Part C States (Laws) Act,  1950, and  of  the  Acts extended to the Provinces  of  Delhi  and Ajmer-Merwara  and  various  Part C States  under  the  said sections  respectively, and of the orders and other  instru- ments issued under the Acts so extended;      And whereas the validity of section 7 of the Delhi Laws Act, 1912, and section 2 of the Ajmer Merwara (Extension  of Laws)’Act,  1947, and of the Acts extended by virtue of  the powers  conferred by the said sections has been   challenged in  some  cases pending at present before  the  Punjab  High Court, the Court of the Judicial Commissioner of Ajmer,  and

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the District Court and the Subordinate Courts in Delhi." The provisions referred to above are as follows: -Section  7 of the Delhi Laws Act, 1912:      The  Provincial Government may, by notification in  the official Gazette, extend with such restrictions and  modifi- cations  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 Ajmer-Merwara (Extension of Laws) Act, 1947:      "Extension of enactments to Ajmer-Merwara.--The Central Government  may,  by notification in the  official  Gazette, extend  to the Province of Ajmer-Merwara with such  restric- tons and modifications as it thinks fit any enactment  which is in force in any other Province at the date of such  noti- fication. 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 Fart 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 855 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."     The Central Legislature, which enacted these provisions, had,  at all material times, the power to make  laws  itself for  the designated territories. But, instead of  exercising that  power, it empowered the Provincial Government  in  the first-mentioned  case,  and the Central  Government  in  the others, to extend, by notification in the official  Gazette, to the designated territories laws made by Provincial Legis- latures all over India for territories within their  respec- tive  jurisdiction. The principal features of the  authority thus delegated to the executive are as follows:     (1)  The laws thus to be extended by the  executive  are laws  made not by the delegating authority  itself,  namely, the Central Legislature, but by different Provincial  Legis- latures for their respective territories.     (2) In extending such laws the executive is to have  the power  of restricting or modifying those laws as  it  thinks fit.     (3)  The law to be extended is to be a law in  force  at the  time of the notification of extension, that is to  say, the executive is empowered not only to extend laws in  force at the time when the impugned provisions were enacted, which the  Central Legislature could be supposed to have  examined and  found  suitable  for extension to  the  territories  in question,  but also laws to be made in future by  Provincial Legislatures  for  their respective  territories  which  the Central Legislature could possibly have no means of  judging as to their suitability for such extension.     (4)  The power conferred on the executive by the  enact- ments referred to in Question No. a is not only to extend to the  designated territories laws made by other  legislatures but  also to repeal or amend any corresponding law in  force in the designated territories.   856   The  question  is:  Was the delegation  of  such  sweeping discretionary power to pick and choose laws made   by  other legislatures to operate elsewhere and to apply  them to  the

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territories in question within the competence of the Central Legislature ?   In  Jatindra  Nath  Gupta v. The Province  of  Bihar  (1), which  has  led  to this reference,  the  Federal  Court  of India held by a majority (Kania C.J., Mahajan and    Mukher- jea JJ.) that the proviso to sub-section (3) of   section  1 of  the Bihar Maintenance of Public Order   Act, 1937,  pur- porting  to authorise the  Provincial   Government, on  cer- tain conditions which are not   material here, to extend  by notification, the operation  of the Act for a further speci- fied period after its expiry   with or without modifications amounted  to a delegation of legislative power and  as  such was  beyond   the competence of the legislature.  The  deci- sion  proceeded   to  some  extent  on  the  concession   by counsel  that  delegation  of legislative power was   incom- petent though it must be admitted there are     observations in the judgments of their Lordships   lending the weight  of their authority in  support  of that view.  Fazl Ali J. in a dissenting judgment   held that the power to extend and  the power to modify  were separate powers and as the  Provincial Government  had  in fact extended the operation of  the  Act without  making  any   modification  in  it,  the    proviso operated as  valid conditional legislation.  While  agreeing with  the conclusion of the majority  that the detention  of the  petitioners in that case  was unlawful, 1 preferred  to rest  my decision on   a narrower ground which has no  rele- vancy  in  the   present discussion.  In the  light  of  the fuller  arguments addressed to us in the present case, I  am unable  to agree with the majority view.    The  Attorney-General, appearing on behalf of the  Presi- dent,  vigorously attacked the majority view  in    Jatindra Nath  Gupta’s case(1) as being opposed alike  to sound  con- stitutional  principles  and the weight of   authority.   He cited  numerous  decisions  of the  Privy      (1) [1949-50] F.C.R. 595. 857 Council and of the American, Australian and Canadian  Courts and also called attention to the views expressed by  various writers  on  the subject in support of his  contention  that legislative  power involves as part of  its content a  power to  delegate it to other authorities and that a  legislative body  empowered to make laws on certain subjects and  for  a certain  territory  is competent, while  acting  within  its appointed  limits, to delegate the whole of its  legislative power to any other person or body short of divesting  itself completely of such power.     It  is  now a commonplace of constitutional law  that  a legislature  created  by  a written  constitution  must  act within  the ambit of its powers as defined by the  constitu- tion and subject to the limitations prescribed thereby,  and that  every legislative act done contrary    the  provisions of the constitution is void.  In England no such problem can arise as there is no constitutional limitation on the powers of  Parliament, which, in the eye of the law,  is  sovereign and supreme. It can, by its ordinary legislative  procedure, alter the constitution, so that no proceedings passed by  it can  be challenged on constitutional grounds in a  court  of law.  But India, at all material times,--in 1912,  1947  and 1950 when the impugned enactments were passed-had a  written constitution,  and  it is undoubtedly the  function  of  the courts to keep the Indian legislatures within their  consti- tutional bounds.  Hence, the proper approach to questions of constitutional  validity  is "to look to the  terms  of  the instrument  by which, affirmatively, the legislative  powers were created, and by which, negatively, they were  restrict-

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ed.  If what has been done is legislation within the general scope  of the affirmative words which gave the power and  if it violates no express condition or restriction by which the power  is  limited (in which category would, of  course,  be included   any Act of the Imperial  Parliament  at  variance with  it)  it  is not for any court of  justice  to  inquire further  or, to enlarge constructively those conditions  and restrictions.": Empress v. Burah(1).  We (1) s I.A. 178. 858 have,therefore, to examine Whether the delegation of author- ity  made in each of the impugned enactments is contrary  to the  tenor  of the constitution under  which  the  enactment itself  was  passed.   No provision is to be  found  in  the relevant constitutions authorising or prohibiting in express terms  the delegation of legislative power.  Can a  prohibi- tion  against delegation be derived inferentially  from  the terms  of the constitution and, if so, is there anything  in those terms from which such a prohibition can be implied ?      Before examining the relevant constitutions to find  an answer  to the question, it will be useful to refer  to  the two  main theories of constitutional law regarding what  has been  called  delegated  legislation.   Though,  as  already explained, no question of constitutionality of such legisla- tion  could  arise  in England itself,  such  problems  have frequently  arisen  in the  British  commonwealth  countries which  have  written  constitutions,  and  British   Judges, trained in the tradition of parliamentary omnipotence,  have evolved  the doctrine that every legislature created  by  an Act of Parliament, though bound to act within the limits  of the  subject  and area marked out for it, is,  while  acting within  such limits, as supreme and sovereign as  Parliament itself.  Such legislatures are in no sense delegates of  the Imperial Parliament and, therefore, the maxim delegatus  non potest  delegare is not applicable to them. A delegation  of legislative functions by them, however extensive, so long as they  preserve their own capacity, cannot be  challenged  as unconstitutional.   These propositions were laid down in  no uncertain  terms  in the leading case of Hodge  v.  Queen(1) decided by the Privy Council in 1883. Upholding the validity of an enactment by a Provincial Legislature in Canada where- by  authority was entrusted to a Boar6 of  Commissioners  to make regulations in the nature of bylaws or municipal  regu- lations  for the good government of taverns and  thereby  to create offences and annex penalties thereto, their Lordships observed as follows: (1) 9 App. Cas. 117 859      "It was further contended that the Imperial  Parliament had  conferred  no  authority on the  local  legislature  to delegate  those powers to the Licence Commissioners, or  any other  persons.  In other words, that   the power  conferred by  the Imperial Parliament on the local legislature  should be  exercised in full by that body, and by that body  alone. The  maxim delegatus non potest delegare was relied  on.  It appears to their Lordships, however, that the objection thus raised  by the appellant is founded on an entire  misconcep- tion  of the true character and position of  the  provincial legislatures.  They are in no sense delegates of  or  acting under  any  mandate from the Imperial Parliament.  When  the British  North  America Act enacted that there should  be  a legislature  for Ontario, and that its legislative  assembly should  have exclusive authority to make laws for the  Prov- ince and for provincial purposes in relation to the  matters enumerated  in  section 92, it conferred powers not  in  any

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sense to be exercised by delegation from or as agents of the Imperial  Parliament, but authority as plenary and as  ample within  the limits prescribed by section 92 as the  Imperial Parliament in the plenitude of its power possessed and could bestow.  Within these limits of subjects  and area the local legislature  is supreme..................  It was argued  at the bar that a legislature committing important  regulations to  agents or delegates effaces itself. That is not  so.  It retains  its powers intact, and can, whenever  it   pleases, destroy  the  agency it has created and set up  another,  or take the matter directly into its own hands. How far it  can seek the aid of subordinate agencies, and how long it  shall continue them, are matters for each legislature, and not for courts of law, to decide."(1).     Here  is a clear enunciation of the English doctrine  of what  may  be called "supremacy within limits"; that  is  to say,  within  the circumscribed limits  of  its  legislative power,  a subordinate legislature can do what  the  Imperial Parliament can do, and no constitutional limit on its  power to delegate can be imported (1) 9 App. Cas. 117 131, 111 860 on the strength of the maxim delegatus non potest  delegare, because  it  is not a delegate.  The last few words  of  the quotation  are significant.  They insist,  as does the  pas- sage already quoted from Burah’s case(1), that the scope  of the enquiry when such an issue is presented to the court  is strictly limited to seeing whether the legislature is acting within  the  bounds of its legislative power.   The  remarks about "authority ancillary to legislation" and "abundance of precedents  for this. legislation entrusting a limited  des- cretionary authority to others " have, obviously,  reference to  the particular authority delegated on the facts of  that case which was to regulate taverns by issuing licences,  and those remarks cannot be taken to detract from or to  qualify in  any way the breadth of the general principles so  unmis- takably laid down in the passages quoted.       The  same  doctrine was affirmed in Powell  v.  Apollo Candle  Co. Ltd.(2), where, after referring to Burah’s  case (1)  and  Hodge’s  case(3),  their  Lordships  categorically stated: "These two cases have put an end to a doctrine which appears at one time to have had some currency, that a  Colo- nial Legislature is a delegate of the Imperial  Legislature. It  is a legislature restricted in the area of  its  powers, but  within  that area unrestricted, and not  acting  as  an agent  or a delegate." An objection that the legislature  of New  South Wales alone had power to impose the tax in  ques- tion  and it could not delegate that power to the  Governor, was  answered  by saying "But the duties  levied  under  the Order  in Council are really levied by the authority of  the Act  under which the order is issued.  The  legislature  has not  parted with its perfect control over the Governor,  and has  the  power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him"(4).       If Hodge’s ease(3) did not involve an extensive  dele- gation of legislative power, Shannon’s case(5) did.    (1) 5 I.A. 178.               (4) 10 App. Cas. 282, 291. (2) 10 App. Cas. 282.             (5) [1938] A.C. 708.    (3) 9 App. Cas. 117. 861 A  provincial legislature in Canada had passed a  compulsory Marketing  Act  providing for the setting  up  of  Marketing Boards  but leaving it to the Government to determine   what powers and functions should  be given to those  Boards.  One

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of  the objections raised to the  legislation  was  that  it was only a "skeleton of an Act" and that the legislature had practically  "surrendered its legislative responsibility  to another  body."  Lord Haldane’s dictum in what is  known  as the  Referendum case(1) (to which a more detailed  reference will  be made presently) suggesting a doubt as to a  provin- cial legislature’s power to "create   and endow with its own capacity  a new legislative power not created by the Act  to which  it  owes its existence" was cited in support  of  the objection.   The objection, however, was summarily  repelled without calling upon Government counsel for an answer. Their Lordships contented themselves with reiterating the  English doctrine  of "plenary powers of delegation within  constitu- tional  limits" and said: "This objection appears  to  their Lordships  subversive  of the rights  which  the  provincial legislature enjoys while dealing with matters falling within the  classes of subjects in relation to which the  constitu- tion  has granted legislative powers.  Within its  appointed sphere the provincial legislature is as supreme as any other parliament............  Martin C.J. appears to have disposed of this objection very satisfactorily in his judgment on the reference,  and their Lordships find no occasion to  add  to what he there said." What Martin C.J. said is to be found in Re  Natural  Products Marketing (B.C.) Act(2).  He  said  "1 shall  not, however, pursue at length this subject  (delega- tion of legislative powers) because, to use the language  of the Privy Council in Queen v. Burah(3), ’The British Statute book  abounds with examples of it’ and a  consideration  for several days of our early and late ’statute book’  discloses such  a surprising number of delegations to various  persons and bodies in all sorts of subject-matters that it would (1) [1919] A.C. 935.             (3) 3 App. Cas. 889, 906. (2) (1937) 4 D.L.R. 298, 310. 862 take  several  pages even to enumerate them, and  it   would also  bring  about a constitutional debacle  to   invalidate them.   I must, therefore, content myself by selecting  four statutes only."  The learned Judge then  proceeded to refer, among  others, to a statute whereby   "carte blanche  powers were  delegated  over affected fruit   lands areas  to  cope with  a pest", and to another  "whereby power was  conferred upon  the Lieutenant  Governor in Council to make  rules  of the widest scope"  and the first importance in our system of jurisprudence   whereby our whole civil practice and  proce- dure, appellate and trial, are regulated and constituted  to such  an  extent that even the sittings we hold are  thereto subjected." This  recent pronouncement of the Privy Council on the  Eng- lish view of the delegability of legislative   power is,  in my opinion, of special interest for the   following  reasons :-- (1)  The  case involved such an  extensive  delegation    of legislative  power--counsel thought the’ ’limit" had    been reached  --that  it squarely raised the  question  of    the constitutional validity of surrender or abdication   of such power and Lord Haldane’s dictum in the   Referendum  case(1) was relied upon. (2) Nevertheless, the objection was considered so    plainly unsustainable that Government counsel was   not called  upon to  answer, their Lordships having   regarded the  objection as  "subversive" of well-established constitutional  princi- ples.           (3)  Martin  C.J.’s  instances  of  "carte  blanche delegation"  were approved and were considered as  disposing of the objection "very satisfactorily."

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    (4)  All  that was considered necessary  to  repel  the objection  was a plain and simple statement of the   English doctrine,  namely, within its appointed sphere  the  provin- cial  legislature was as supreme as any  other   parliament, or,  in  other  words, as there can be no  legal   limit  to Parliament’s power to delegate, so can there (1) [1919] A.C. 935. 863 be none to the power of the provincial legislature to  dele- gate legislative authority to others.     Thus, the  English approach  to the problem of delegation of legislative  power is  characterised  by a refusal to regard legislation  by  a duly  constituted  legislature as exercise  of  a  delegated power, and it emphatically repudiates the application of the maximum  delegatus non potest delegate.  It  recognises  the sovereignty  of legislative bodies within the limits of  the constitutions by which they are created and concedes plenary powers of delegation to them within such limits.  It regards delegation as a revocable entrustment of the power to legis- late  to an appointed agent whose act derives  its  validity and  legal  force from the delegating statute and not  as  a relinquishment by the delegating body of its own capacity to legislate.     On  the other hand, the American courts have  approached the  problem along wholly different lines which are no  less the outcome of their own     environment and tradition.  The American  political  scene  in the  eighteenth  century  was dominated  by the ideas of Montesque and Locke that  concen- tration of legislative, executive and judicial powers in the hands of a single organ of the State spelt tyranny, and many State constitutions had explicitly provided that each of the great  departments of State, the legislature, the  executive and  the  judiciary, shall not exercise the  powers  of  the others.   Though the Federal Constitution contained no  such explicit provision, it was construed, against the background of  the separatist ideology, as embodying the  principle  of separation  of powers, and a juristic basis for  the  conse- quent  non-delegability of its power by one of  the  depart- ments  to the others was found in the old familiar maxim  of the  private  law of agency delegatuts non  potest  delegare which  soon  established itself as a  traditional  dogma  of American  constitutional law. But the swift progress of  the nation in the industrial and economic fields and the result- ing complexities of administration forced the realisation on the American Judges of the unavoidable necessity for 864 large-scale delegation of legislative powers to  administra- tive  bodies, and it was soon recognised that to  deny  this would be "to stop the wheels of government."  The result has been  that  American  decisions on this branch  of  the  law consist  largely  of  attempts to  disguise  delegation  "by veiling  words" or "by softening it by a quasi" (per  Holmes J.  in Springer v. Government of the Phillipine  Islands(1). "This result", says a recent writer on the subject, "is well put in Prof. Cushman’s syllogism ’-      Major  premise: Legislative power cannot  be  constitu- tionally delegated by Congress.       Minor premise: It is essential that certain powers  be delegated to administrative officers and regulatory  commis- sions.       Conclusion:  Therefore the powers thus  delegated  are not legislative powers."       They  are instead  "administrative"or  "quasi-legisla- tive"--(American Administrative Law by Bernard Schwartz,  p. 20).  After considerable confusion and fluctuation of  opin-

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ion  as to what are "essentially" legislative  powers  which cannot  be delegated and what are mere  "administrative"  or "ancillary" powers, the delegation of which is  permissible, the  recent  decisions of the Supreme Court  would  seem  to place  the  dividing line between laying down  a  policy  or establishing a standard in respect of the subject legislated upon  on the one hand and implementing that policy  and  en- forcing  that standard by appropriate rules and  regulations on  the  other:  (vide Schechter Poultry  Corpn.  v.  United States(2) and Panama Refining Co. v. Ryan(3)), a test  which inevitably gives rise to considerable divergence of judicial opinion as applied to the facts of a given case.       I will now turn to the questions in issue.  The  first question  which relates to the validity of section 7 of  the Delhi Laws Act, 1912. has to be determined with reference to the competency of "the legislature which     (1) 277 U.S. 189.          (3) 293 U.S. 388.     (2) 295 U.s. 495. 865 passed the said Act", that is, with reference to the consti- tution  then in force.  It may be mentioned her, e that  the Delhi Laws Act, 1912, as well as the AjmerMerwara (Extension of  Laws) Act, 1947, to which the second  question  relates, were  repealed  by section 4 of the Part  C  States   (Laws) Act, 1950, but the Acts already extended under the  repealed provisions have been continued in force and hence the neces- sity  for a pronouncement on the constitutional validity  of the repealed provisions.     In 1912 the Indian Legislature was the Governor  General in  Council,  and his law-making powers  were  derived  from section 22 of the Indian Councils Act, 1861 (24 and 25  Vic. Ch.  7) which conferred power "to make laws and  regulations for repealing, amending or altering any laws or  regulations whatever  now  in force or hereafter to be in force  in  the Indian territories now under the dominion of Her Majesty and to make laws and regulations for all persons whether British or  native,  foreigners  or others, and for  all  courts  of justice  whatever  and for all places  and  things  whatever within the said territories," subject to certain  conditions and  restrictions  which do not affect the  impugned  provi- sions.   The composition and powers of the  Governor-General in  Council were altered in other respects by  the  Councils Acts  of 1892 and 1909, but his law-making  powers  remained essentially  the  same in 1912.   The  question  accordingly arises  whether section 7 of the Delhi Laws Act,  1912,  was within  the  ambit of the legislative  powers  conferred  on himby  section 22 of the Indian Councils Act, 1861.  As  the power   is   defined   in  very  wide   terms--"   for   all persons.......   and  for all places and things  whatever  " within  the  Indian  territories--the  issue  of  competency reduces itself to the question whether section 7 was a "law" within the meaning of section 22 of the Indian Councils  Act of  1861. This question is, in my opinion, concluded by  the decision of  the Privy Council in Empress v. Burah(1). (1) 5 I.A. 178. 866      That was an appeal by the Government from a judgment of the  majority  of a Full Bench of the  Calcutta  High  Court holding that sections 8 and 9 of Act XXII of 1869 were ultra vires  the Governor General in Council as being an  unautho- rised  delegation  of legislative power to  the  Lieutenant- Governor of Bengal.  The combined effect of those provisions was  to authorise the Lieutenant-Governor to extend to  cer- tain districts by notification in the Calcutta Gazette  "any law  or  any portion of any law now in force  in  the  other

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territories subject to his government or which may hereafter be enacted by the Council of the Governor-General or of  the said    Lieutenant-Governor,    for    making    laws    and regulations..........  "Markby J., who delivered the leading judgment  of the majority, held (1) that section 9  amounted to a delegation of legislative authority to the  Lieutenant- Governor  by the Indian Legislature which, having  been  en- trusted  with such authority as a delegate of  the  Imperial Parliament,  had  no  power in its turn to  delegate  it  to another,  and (2) the Indian Legislature could  not  "change the  legislative  machinery in India without  affecting  the provisions  of  the Acts of Parliament  which  created  that machinery  and if it does in any way affect them,  then  ex- consensu  omnium  its  Acts are void."   The  learned  Judge referred  to  the argument of  Government  counsel,  namely, "where  Parliament  has  conferred upon  a  legislature  the general power to make laws, the only question can be ’Is the disputed  Act a law’.  If it is, then it is valid unless  it falls  within some prohibition." The learned Judge  remarked that  this argument was "sound", but met it by holding  that "it was clearly intended to restrict the Legislative Council to the exercise of functions which are properly legislative, that  is, to the making of laws, which (to use  Blackstone’s expression)are  rules of action prescribed by a superior  to an  inferior or of laws made in furtherance of those  rules. The English Parliament is not so restricted.  It is not only a  legislative  but a paramount  sovereign  body......   The Legislative Council, when it merely grants permission 867 to  another person to legislate, does not make a law  within the   meaning  of  the  Act  from  which  it   derives   its authority"(1) The learned Judge rejected the argument  based on previous legislative practice as the  instances relied on were  not "clear and undisputed instances of a  transfer  of legislative authority." Garth C.J. in his dissenting opinion pointed out that "by the Act of 1833 the legislative  powers which  were  then  conferred upon  the  Governor-General  in Council were in the same language, and (for the purposes  of the present case) to the same effect, as those given by  the Councils  Act in 1861; and from the time when that  Act  was passed, the Governor-General in Council has constantly  been in the habit of exercising those powers through the  instru- mentality  of  high officials and public bodies, in  whom  a large  discretion has been vested for that purpose."(2)   It could  not therefore be supposed that "the Imperial  Parlia- ment  would  have renewed in the Councils Act  of  1861  the legislative powers which the Governor-General in Council had so long exercised, if they had disapproved of the course  of action  which  the Legislature had been pursuing.  The  fact that with the knowledge of the circumstances which they must be assumed to have possessed, Parliament did in the Councils Act  renew the powers which were given by the Act  of  1833, appears  to me to amount to a statutory acknowledgment  that the course of action which had been pursued by the  legisla- ture  in the exercise of those powers was one which the  Act had  authorised."(3) The learned Chief  Justice  accordingly came  to  the  conclusion that Act XXII of 1869  was  a  law "which  the legislature was justified in passing."   I  have referred at some length to the reasoning and conclusions  of the learned Judges in the High Court as I think they will be helpful in understanding the full import of the judgment  of the Privy Council.     It  will be seen, in the first place, that the  line  of approach adopted by Government counsel in the High  (1)I.L.R. 3 Cal. 63 at 90, 91.     (3) Ibid 144.

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(2) Ibid, 140. 112 868 Court  was  endorsed by their Lordships as the  correct  ap- proach to the problem, that is to say, the court has to  see whether "what has been done is legislation within the gener- al  scope of affirmative words which give the power, and  if it  violates  no express condition by which  that  power  is limited  it  is not for any court to inquire further  or  to enlarge  constructively those conditions  and  restrictions" (italics  mine).   This passage clearly lays down  [what  we have  already seen was reiterated in Hodge’s  case(1)]:  (1) that  the scope of judicial review in such cases is  limited only to determining whether the impugned enactment is within the law-making power conferred on the legislature and wheth- er  it violates any express condition limiting  that  power, and  (2) that in determining the latter question  the  court should have regard only to express conditions and should not enlarge  them inferentially by a process of  interpretation. In the second place, their Lordships repudiated the doctrine [as they did also in respect of a provincial legislature  in Canada in Hodge’s case(1)] that the Indian Legislature is in any  sense an agent or delegate of the Imperial  Parliament, and that the rule against delegation by an agent applies  to the  situation. Thirdly, the distinction made by  Markby  J. between  Parliament  and  the Indian  Legislature  that  the latter  is  "restricted to the......making of laws"  in  the sense  defined  by Blackstone, while Parliament was  not  so restricted, or, in other words, that while Parliament  could make  a "law" delegating its legislative power,  the  Indian Legislature  could not make such a "law,’ was rejected,  and the  English  doctrine of supremacy within limits  was  laid down  specifically  in regard to  the  Indian.  Legislature, which,  when  acting within the  limits  circumscribing  its legislative  power  "has and was intended  to  have  plenary powers  of  legislation as large and of the same  nature  as those  of Parliament itself" (italics mine). It must  follow that it is as competent for the Indian Legislature to make a law  delegating legislative power, both  quantitatively  and qualitatively, as it is for (1) 9 App. Cas. 117. 869 Parliament to do so, provided, of course, it acts within the circumscribed  limits.  Fourthly, their Lordships     "agree that  the Governor-General in Council could not by any  form of  enactment create in India and arm with general  legisla- tive authority a new legislative power not created or autho- rised by the Councils Act. Nothing of that kind has in their Lordships’  opinion  been done or attempted in  the  present case."     Mr. Chatterjee, on behalf of the opposite party, submit- ted that the remark regarding the incompetency of the Gover- nor-General in Council to create in India a new  legislative power had reference to the subordinate agency or  instrumen- tality to which the legislative authority was to be delegat- ed  and thus negatived the legislature’s right to  delegate. The  context, however, makes it clear that  their  Lordships were expressing agreement on this point with Markby J.  who, as  we  have seen, had stated that  the  Indian  Legislature could not "change the legislative machinery in India without affecting  the  provisions of the Acts of  Parliament  which created  that  machinery." This shows that  their  Lordships were envisaging the setting up of a new  legislative machin- ery  not  authorised  by the Councils Act, that  is,  a  new legislature in the sense in which the Central and Provincial

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Legislatures  in the country were legislatures.  While  they agreed that  that could not. be done (because it would be  a contravention  of  the Act of Parliament  which  confers  no power to create such legislatures) their Lordships proceeded to point out that that was not what was done by the impugned Act  and that Markby J. fell into an error in thinking  that it was. Their Lordships gave two reasons: first, because "it is a fallacy to speak of the powers thus conferred upon  the Lieutenant-Governor (large as they undoubtedly are)’ as  if, when  they  were exercised, the efficacy of  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 Act (No. XXll of 1869) itself." Here, indeed,  their Lordships touch the core of the problem by indicating 870 the  true nature of delegated legislation as  distinct  from creating  a new legislative body. The point is developed  to its  logical  consequence  in later cases as  will  be  seen presently,  but  here they expose to view the  not  uncommon "fallacy"  of treating the one as of the same nature and  as having constitutionally the same consequence as the other, a fallacy which perhaps accounts for much of the confusion  of thought on the subject. It will be recalled that in  Hodge’s case(1) it was made clear that in delegated legislation  the delegating  body  does  not efface itself  but  retains  its legislative power intact and merely elects to exercise  such power  through an agency or instrumentality of  its  choice. There is no finality about this arrangement, the  delegating body  being free to "destroy the agency it has  created  and set  up  another or take the matter directly  into  its  own hands."  In  Burah’s case(2)  their  Lordships  emphatically stated  one consequence of that view, namely, that  the  act done by the authority to which legislative power is delegat- ed derives its whole force and efficacy from the  delegating legislature,  that is to say, when the delegate  acts  under the  delegated authority, it is the legislature that  really acts  through  its appointed instrumentality. On  the  other hand, in the creation of a new legislative body with general legislative  authority  and functioning in  its  own  right, there is no delegation of power to subordinate units, but  a grant  of  power to an independent and co-ordinate  body  to make  laws operating of their own force. In the first  case, according  to English constitutional law, no express  provi- sion authorising delegation is required. In the absence of a constitutional inhibition, delegation of legislative  power, however  extensive, could be made so long as the  delegating body retains its own legislative power intact. In the second case,  a positive enabling provision in  the  constitutional document is required.     The  second  reason  why their  Lordships  regarded  the majority view as erroneous was that Act XXII of 1869 was, in truth, nothing more than conditional legislation (1) 9 App. Cas. 117. (2) 5 I.A. 178. 871 and  there was no question of delegating legislative  power. Their  Lordships were of opinion that neither in fixing  the time for commencement of the -Act nor in enlarging the  area of its operation was the Lieutenant Governor exercising  "an act of legislation."  "The proper legislature has  exercised its  judgment  as to place, person, laws,  powers;  and  the result of that judgment has been to legislate  conditionally as  to  all these things. The conditions  having  been  ful- filled,  the  legislation is now  absolute.   Where  plenary

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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 of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in  whom it  places  confidence, is no uncommon thing; and,  in  many circumstances,  it  may be highly  convenient.  The  British Statute  book abounds with examples of it; and it cannot  be supposed that the Imperial Parliament did not, when  consti- tuting  the  Indian Legislature, contemplate this   kind  of conditional legislation as within the scope of the  legisla- tive  powers which it from time to time conferred.  It  cer- tainly used no words to exclude it."     Their Lordships finally proceeded to refer to the legis- lative practice in this country of delegating to the  execu- tive  government a discretionary power of  extending  enact- ments  to new territories subject in certain cases  to  such "restriction,  limitation or proviso" as the Government  may think  proper,  and  they expressed their  approval  of  the reasoning  of Garth C.J. based on such practice.  "If  their Lordships," they said, "were to adopt the view of the major- ity  of the High Court they would (unless  distinction  were made  on grounds beyond the competency of the  judicial  of- fice) be casting doubt upon the validity of a long course of legislation  appropriate,  as far as they can judge  to  the peculiar  circumstances  of India.........  For  such  doubt their Lordships are unable to discover any foundation either in the affirmative or the negative words of that Act"   872   (Indian  Councils  Act,  1861).  The  parenthetic   remark (which  I have italicised) is significant.  It is  not  com- petent for the court, according to their Lordships, to  dis- criminate  between  degrees  of delegation.   It  might   be extensive in some cases and slight in others.  Its  validity must, however, be founded "on the affirmative  or the  nega- tive words" of the Constitution Act. Another logical consequence of the British theory of   dele- gation  has  been worked out in  Co-operative  Committee  on Japanese Canadians v. Attorney-General for  Canada(1), where the  question  arose  as to whether an  order  made  by  the Governor in Council pursuant to  authority delegated by  the Parliament  of  Canada was a law made by the  Parliament  of Canada  within  the  meaning of the Statute  of  Westminster and, if so,  whether it was such a law made after the  pass- ing of    that Statute.  The  delegation of authority to the Governor  was made before that Statute was passed  but   the Governor’s order was promulgated after the Statute.  Holding that the order was a "law" made by the  Parliament of Canada after the Statute of Westminster  their Lordships  observed: "Undoubtedly, the law as  embodied in an order or regulation is made at the date  when the power conferred by the Parlia- ment  of the  Dominion is exercised. Is it made  after  that date by  the parliament of the Dominion ? That Parliament is the only legislative authority for the Dominion as a   whole and it has chosen to make the law through  machinery set  up and  continued  by  it for that purpose.   The  Governor  in Council has no independent status as  a law-making body. The legislative  activity of Parliament is still resent  at  the time  when the orders are made, and these orders are"  law". In their Lordships’ opinion they are law made by the Parlia- ment at the date of their promulgation."(2)       Mr.  Chatterice has urged that in Burah’s case(3)  the Privy Council did no more than hold that the type of  legis- lation which their Lordships there called conditional legis-

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lation was within the competence of the     (1) [1947] A.C. 87.           (3) S I.A. 178.     (2) Ibid 106-107. 873 Indian  legislature  and  was   valid,  and  that  the   con siderations  adverted  to ’by their Lordships  in  upholding such  legislation  have  no  relevancy  in  determining  the validity of the provisions impugned in the present case.  It is  true that the kind of legislation here in question  does not  belong  to  that category, for  the  operation  of  the impugned  Acts is not made to depend upon the exercise of  a discretion  by an external authority, but it is not  correct to  say that Burah’s case(1) has application only  to  facts involving conditional legislation. As I have endeavoured  to show,  it  lays  down  general  principles  of  far-reaching importance. It was regarded in Powell’s case(2) referred  to above  as "laying down the general law" and as  "putting  an end"  to the false doctrine that a  subordinate  legislature acts as an agent or a delegate.     Mr. Chatterjee next relied on the dictum of Lord Haldane in  the  Referendum case. (3) In that case  their  Lordships held  that  the Initiative and Referendum  Act  of  Manitoba (Canada)  was,  in so far as it  compelled  the  Lieutenant- Governor to submit a proposed law to a body of voters total- ly distinct from the legislature of which he was the consti- tutional head and rendered him powerless to prevent it  from becoming  an actual law if approved by those  voters,  ultra vires the Provincial Legislature, as the power to amend  the Constitution of the Province conferred upon that Legislature by  the British North America Act, 1867, excluded  from  its scope  "the office of the Lieutenant-Governor ".  Lord  Hal- dane, however, proceeded to make the following observations: "Section  92  of the Act of 1867  entrusts  the  legislative power in a Province to its Legislature, and to that Legisla- ture only. No doubt, a body, with a power of legislation  on the  subjects entrusted to it so ample as that enjoyed by  a Provincial  Legislature in Canada, could,  while  preserving its own capacity intact,  seek the assistance of subordinate agencies,   as   had  been   done  when   in  Hodge  v.  The Queen(4) the Legislature of Ontario was (1) 5 I.A. 178.                  (3) [1919] A.C. 935. (2) 10 App. Cas. 282.        (4) 9 App. Cas. 117, 874  held  entitled to entrust to a Board of  Commissioners  au- thority  to  enact regulations relating to taverns;  but  it does  not follow that it can create and endow with, its  own capacity  a new legislative power not created by the Act  to which it owes its own existence. Their Lordships do no  more than  draw  attention to the gravity of  the  constitutional questions which thus arise."(1)  Mr.  Chatterjee  submitted that  the  grave  constitutional question, to which Lord Haldane drew attention, arose in the present case. I do not think so. The dictum, like the obser- vation  of  Lord Selborne in Burah’s case(2)  regarding  the power of the Governor-General in Council "to create in India and arm with general legislative authority a new legislative power," to which reference has been made, seems to  envisage the  unauthorised  creation  of a new  legislature  with  an independent status as a law-making body, which, for  reasons already  indicated,  is quite different from  delegation  of legislative  power, and my remarks in connection  with  that observation equally apply here. The  only  other  decision of the Privy  Council  to   which reference  need  be  made is King Emperor  v.   Benoari  Lal Sarma. (3)  It was an appeal from a judgment of the majority

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of the Federal Court of India (reported in [1943] F.C.R. 96) holding,  inter  alia,  that sections 5, 10 and  16  of  the Special Criminal Courts Ordinance (No. II of 1942) passed by the  Governor- General in exercise of his  emergency  powers were  ultra vires and invalid.  The ground of  decision  was that  although the powers of the High Court were taken  away in form by section 26 of the Ordinance, they were, in  fact, taken away by the order of the executive officer to whom  it was left by sections 5, 10 and 16 to direct what offences or classes  of  offences  and what cases or  classes  of  cases should be tried by the special courts established under  the Ordinance.   In so far as these sections thus  purported  to confer  on the executive officers absolute and  uncontrolled discretion  without any legislative provision  or  direction laying down  (1) [1919] A.C. 935, 945. (2) 5 I.A. 178. (3) 72 I.A. 57. 875 the policy or conditions with reference to which that  power was to be exercised, they were beyond the competence of  the Governor-General.  Varadachariar  C.J., with  whom  Zafrulla Khan J. concurred, went elaborately into the whole  question of delegation of legislative powers, and while conceding, in view  of  the Privy Council decisions already  referred  to, that the Governor General (whose legislative power in  emer- gencies  was co-extensive with that of the  Indian  Legisla- ture)  could not be regarded as a delegate of  the  Imperial Parliament  and  that, therefore, the  maxim  delegatus  non potest  delegare had no application, nevertheless  expressed the opinion that "there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in the passage from the American author- ity which the Advocate-General of India proposed to adopt as his  own  argument."   That principle was  this:  "The  true distinction  is between the delegation of power to make  the law,  which necessarily involves a discretion as to what  it shall  be, and conferring authority or discretion as to  its execution,  to  be exercised under and in pursuance  of  the law.   The  first  cannot be done, to the  latter  no  valid objection  can be made :" (per Judge Ranney of  the  Supreme Court  of  Ohio,  often cited in  American  decisions).  The learned Chief Justice then proceeded to examine the American decisions  bearing  upon the delegation of  powers  and  the opinions expressed by writers on administrative law and came to the following conclusion :--     "As  we  have already observed, the  considerations  and safeguards  suggested  in the foregoing passages may  be  no more  than considerations of policy or expediency under  the English   Constitution.   But under Constitutions  like  the Indian  and  the American, where  the  constitutionality  of legislation is examinable in a court of law, these consider- ations  are, in our opinion, an integral and essential  part of  the limitation on the extent of delegation of  responsi- bility  by the legislature to the executive. In the  present case, it is impossible to deny that the Ordinance-making 113 876 authority  has  wholly evaded the responsibility  of  laying down any rules or conditions or even enunciating the  policy with  reference  to which cases are to be  assigned  to  the ordinary  criminal courts and to the special courts  respec- tively  and  left the whole matter to  the     unguided  and uncontrolled  action of the executive authorities.  This  is not a criticism of the policy of the law--as counsel for the Crown  would make it appear --but a complaint that  the  law has  laid down no policy or principle to guide  and  control

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the exercise of the undefined powers entrusted to the execu- tive   authorities  by  sections  5,  10  and  16   of   the Ordinance."(1)     I have set out at some length the reasoning and  conclu- sion of the learned Chief Justice because it summarises  and accepts most of what has been said before us by Mr. Chatter- jee  in support of his contention that the American rule  as to  delegation of legislative powers should be  followed  in this country in preference to the views of English Judges on the  point and that the delegation of a too wide and  uncon- trolled  power  must be held to be bad. The  Privy  Council, however, rejected the reasoning and conclusion of the major- ity  of  the ’Court in a clear and  emphatic  pronouncement. Their Lordships scouted the idea that what might be no  more than considerations of policy or expediency under the  Brit- ish  Constitution  could, in India, as in  America,  become. constitutional limitations on the delegation of  legislative responsibility  merely  because  the   constitutionality  of legislation was open to judicial review under the  constitu- tion of this country. They said:  "With the greatest respect to these eminent Judges, their Lordships feel bound to point out  that the question whether the Ordinance is intra  vires or  ultra vires does not depend on considerations of  juris- prudence  or of policy. It depends simply on  examining  the language of the Government Of India Act and of comparing the legislative authority conferred on the Governor-General with the  provisions of the ordinance by which he is  ’purporting to  exercise that authority"--the old traditional  approach, "It (1) [1943] F.C.R. 96, 139-140, 877 may be that as a matter of wise and well-framed  legislation it is better, if circumstances permit, to frame a statute in such a way that the offender may,know in advance before what court  he  will  be brought if he is charged  with  a  given crime; but that is a question of policy, not of law.   There is  nothing  of which     their Lordships are aware  in  the Indian  constitution  to render invalid a  statute,  whether passed  by  the Central legislature or under  the  Governor- General’s emergency powers, which does not accord with  this principle......There is not, of course, the slightest  doubt that the Parliament of Westminster could validly enact  that the choice of courts should rest with an executive  authori- ty,  and  their Lordships are unable to discover  any  valid reason  why the same discretion should not be conferred  ’in India by the law-making authority, whether  that   authority is the  legislature or the Governor-General, as an  exercise of  the discretion conferred on the authority to  make  laws for the peace order,’ and good government of India."(1)     The English doctrine of supremacy within limits is  here asserted  once  again, and its corollary is applied  as  the determining test: "What the British Parliament could do, the Indian  legislature  and  the  Governor-General  legislating within their appointed sphere could also do." There was here a ’delegation of an "unguided and uncontrolled"  discretion- ary power affecting the liberty of the subject. In the  lan- guage  of an American Judge,it was "unconfined and  vagrant" and  was  not  "canalised within banks  that  kept  it  from over-flowing  :"(per  Cardozo J. in Panama Refining  Co.  v. Ryan.(2) Yet, the delegation was upheld. Why? Because "their Lordships are unable to find any such constitutional limita- tion is imposed."     There  is, however, a passage in the judgment of  their- Lordships,  which,  torn from its context,  may  appear,  at first  blush,  to accept the maxim of delegatus  non  potest

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delegare  as  a  principle of  English  constitutional  law, notwithstanding its consistent repudiationby the same tribu- nal in the previous decisions already (1) 72 I.A. 57, 70-72.        (2) 293 U.S. 388. 878 referred to, and Mr. Chatterjee was not slow to seize  on it as making a veering round to the American point    of  view. I  do  not think that their Lordships meant     anything  so revolutionary.  The passage is this: "It  is     undoubtedly true  that the Governor-General, acting    under section  72 of   Schedule IX,  must himself      discharge the  duty  of legislation there cast on him, and    cannot transfer it  to other  authorities"(1)  (italics   mine).   This  was  said, however,  in  answering the   "second objection"  which  was that section 1 (3) of the   Ordinance "amounted to what  was called delegated   legislation by which the  Governor-Gener- al,  without   legal authority, sought to pass the  decision whether   an emergency existed to the Provincial  Governmen- tinstead  of  deciding it for himself."   Now,  the  opening words  of section 72 of Schedule IX of the  Government    of India  Act declare: "The Governor-General may, in   case  of an emergency, make and promulgate ordinances   for the peace and  good  government  of  British  India     or  any   part thereof."   The  ordinance was thus  passed     avowedly  in exercise  of  a  special power to legislate  to     meet  an emergency,  and the argument was that the    very  basis  of this  ordinance-making power must be an    exercise of  per- sonal  judgment  and discretion by  the     Governor-General which he could not delegate to the    Provincial  Government or  its  officers.  Their Lordships     accepted  the  major premise  of  this argument but went   on to point  out  that there  was no delegation of his    legislative power by  the Governor-General  at all and    that "what was done is  only conditional legislation."     It was with reference to  this special  ordinance-making    power to meet emergencies  that their  Lordships  said     that  the  Governor-General  must himself  exercise it and    could not transfer it  to  other authorities. The words    "acting under section 72 of Sched- ule  IX"  and  "there,    cast on him"  make  their  meaning clear, and the passage    relied on by Mr. Chatterjee  lends no support to his    argument regarding the  nondelegability of legislative  power in general.    In the light of the authorities discussed above and  adopting the line of approach laid down there, I am 879 of opinion that section 7 of the Delhi Laws Act, 1912,  fell within the general scope of the affirmative words of section 22  of  the Indian Councils Act, 1861, which  conferred  the law-making  power on the Governor.  General in  Council  and that  the  provision did not violate any of the  clauses  by which, negatively, that power was restricted.     The  same  line of approach leads me to  the  conclusion that section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, was also constitutional and valid. This Act was passed by  the  Dominion Legislature of India,  and  the  governing constitutional  provision was section 99 (1) of the  Govern- ment of India Act, 1935. The Indian Independence Act,  1947, authorised  the removal of certain restrictions on the  law- making powers of the Central Legislature and section 108  of the Constitution Act was omitted; but the material words  in section 99 (1) which granted the legislative power  remained the  same, namely, "may make laws for the whole or any  part of the Dominion." No doubt, as between the Dominion and  the Provinces  there  was a distribution  of  legislative  power according  to the Lists in Schedule VII, but such  distribu-

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tion did not affect the power of the Dominion Legislature to make  laws for what are known as Chief Commissioners’  Prov- inces,  of which Ajmer-Merwara is one.  This was made  clear by  section 100 (4) read with section 46. Section 2  of  the impugned  Act  was,  therefore a "law"  which  the  Dominion Legislature was competent to make and the restrictive  words "subject  to the provisions of this Act" had no  application to  the  case, as  no provision was brought  to  our  notice which affected the validity of the law.     There was some discussion as to the scope and meaning of the  words "restrictions" and "modifications".  It was  sug- gested  by Mr. Chatterjee that these words occurring in  the impugned provisions would enable the executive authority  to alter or amend any law which it had decided to apply to  the territories  in question and that a power of such  undefined amplitude could not be validly delegated by the legislature. On 880     the  other hand, the Attorney-General submitted that  in such  context  "modification" was usually taken  to  connote "making  a change without altering the essential  nature  of the thing changed," and that the use of the word would  make no  difference  to  the delegability or   otherwise  of  the legislative  power.  He drew attention  to an instance  men- tioned  by  the Privy Council in Burah’s case,  where  their Lordships thought that the power given to the local  govern- ment by Act XXIII of 1861 to extend the Civil Procedure Code of 1859 "subject to any restriction, limitation or proviso". which  it may think proper was not bad. In the view  I  have expressed above, however wide a meaning may be attributed to the expression, it would not affect the constitutionality of the delegating statute, because no constitutional limitation on the delegation of legislative power to a subordinate unit is’  to  be found in either of the  constitutions  discussed above.  That, I apprehend, is also the reason why the  Privy Council  too attached no importance to the words in  section 39 of Act XXIII of 1861 referred to above.      Turning  next to section 2 of the Part C States  (Laws) Act,  1950, it is framed on the same lines as the other  two impugned provisions save for the addition of a clause empow- ering  repeal or amendment of any corresponding  law  (other than a Central Act) which is for the time being in force  in the State. This additional clause, however, need not  detain us,  for, if there is no constitutional  inhibition  against delegation of legislative power under the present  Constitu- tion,  delegation can as Well extend to the power of  repeal as  to the power of modification and the Court  cannot  hold such’  delegation  to be ultra  vires.   The  Constitutional validity of the additional clause thus stands or falls  with that of the first part of the section and the only  question is: What is the position in regard to delegated  legislation under  the  present Constitution ? Here we do not  have  the advantage of Privy Council decisions bearing on the question as  we had in Burah’s case (1) on the Indian  Councils  Act, 1861, and Benoari Lal (1) 5 I.A. 178. 881 Sarma’s  case(1) on the Government of India Act,  1935.  But the line of approach laid down in those cases and in  numer- ous  others, to which reference has been made, must be  fol- lowed, not because of the binding force of those  decisions, but because it is indubitably the correct approach to  prob- lems  of this kind. Indeed, there is no  difference  between the English and the American  decisions on  this  point.  In both  countries  it is recognised that the  correct  way  of

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resolving  such  problems  is to look to the  terms  of  the constitutional  instrument,  and  to find  out  whether  the impugned  enactment falls within the ambit of the  lawmaking power conferred on the legislature  which passed the  enact- ment  and, if so, whether it transgresses  any  restrictions and  limitations imposed  on  such power.  If the  enactment in question satisfies this double test, then it must be held to be constitutional.     We  therefore begin by looking to the terms of the  Con- stitution  and  we find that article 245  confers  lawmaking power  on  Parliament in the same general terms  as  in  the other two cases discussed above.  The article says  "subject to the provisions of this Constitution, Parliament may  make laws  for  the  whole  or  any  part  of  the  territory  of India......   "Then  we have the scheme of  distribution  of legislative  powers  worked out in article  246  as  between Parliament  and the legislatures of the States specified  in Part  A  and Part B of the First Schedule,  which,  however, does  not  affect  the question we have  to  determine,  for article  246 (4), like section 100 (4) of the Government  of India Act, 1935, provides that Parliament has power to  make laws with respect to any matter for any part of the.territo- ry of India not included in Part A or Part B notwithstanding that such matter is a matter enumerated in the State List.     The  position,  therefore, is substantially  similar  to that under the Indian Councils Act, 1861, and the Government of  India  Act, 1935, so far as the  words  conferring  law- making  power are concerned.  Is then this  impugned  enact- ment, which merely purports to (1) 72 I.A. 57. 882 delegate law-making power to the Central Government for Part C  ,States, a "law" within the meaning of article 245 (1)  ? There  can  be no question but that the Act  was  passed  by Parliament  in  accordance with the  prescribed  legislative procedure,  and  I can see no reason why it  should  not  be regarded  as a law. It will be recalled that the  restricted interpretation  which Markby J. (1) put on the word in  sec- tion 22 of the Indian Councils Act in accordance with Black- stone’s definition (formulation of a binding rule of conduct for  the subject) was not accepted by the Privy  Council  in Burah’s case.  Even if a mere delegation of power to  legis- late  were not regarded as a law’ ’with respect to" one  or- other  of  the "matters" mentioned in the  three  Lists,  it would  be  a law made in exercise of  the  residuary  powers under article 248.     The  question next arises whether there is  anything  in the  Constitution which prohibits the making of such a  law. The  main  restrictions and limitations on  the  legislative power of Parliament or of the States are those contained  in Part III of the Constitution relating to Fundamental Rights. Our attention has not been called to any specific  provision in that Part or elsewhere in the Constitution which  prohib- its  or  has the effect of prohibiting the making of  a  law delegating  legislative  power to a  subordinate  agency  of Parliament’s  choice. What Mr. Chatterjee strenuously  urged was that, having regard to the Preamble to the Constitution, whereby  the people of India resolved, in exercise of  their sovereign right, "to adopt, enact and to give to  themselves the  Constitution,"  Parliament, which is charged  with  the duty of making laws for the territories of the Union,  must, as in the American Constitution, be deemed to be a  delegate of  the people, and that this fundamental conception,  which approximates  to  the conception’  underlying  the  American Constitution, attracts the application of the maxim  delega-

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tus non potest delegare, and operates as an implied prohibi- tion against the delegation of legislative power by  Parlia- ment or, for that matter, by any other legislature (1) I.L.R. 3 Cal. 63, 91, 883 in  the  country.  It is true to say that, in a  sense,  the people  delegated  to  the legislative,  executive  and  the judicial  organs  of  the  State  their  respective   powers while  reserving to themselves the fundamental  right  which they  made paramount by providing that the State  shall  not make  any law which takes away or abridges the  rights  con- ferred by that Part.  To this extent the Indian Constitution may  be said to have been based on the American  model,  but this  is  far  from making the principle  of  separation  of powers, as interpreted by the American courts, an  essential part of the Indian Constitution or making the Indian  Legis- latures  the  delegates of the people so as to  attract  the application of the maxim.  As already stated, the historical background  and the political environment  which  influenced the making of the American Constitution were entirely absent here,  and  beyond the creation of the three organs  of  the State to exercise their respective functions as a matter  of convenient governmental mechanism, which is a common feature of  most  modern civilised governments, there’  is  not  the least indication that the framers of the Indian Constitution made the American doctrine of separation of powers,  namely, that  in their absolute separation and vesting in  different hands  lay the basis of liberty, an integral and basic  fea- ture of the Indian Constitution. On the contrary, by provid- ing  that there shall be a Council of Ministers to  aid  and advise  the President in the exercise of his  functions  and that  the Council shall be collectively responsible  to  the House of the People, the Constitution following the  British model  has  effected a fusion of legislative  and  executive powers  which spells the negation of any clear cut  division of governmental power into three branches which is the basic doctrine  of  American constitutional law.  Without  such  a doctrine being incorporated in the Constitution and made its structural foundation, the maxim delegatus non potest  dele- gare could nave no constitutional status but could only have the force of a political precept to be acted upon by  legis- latures in a 884 democratic  polity consisting of elected representatives  of the  people  in the discharge of their function  of   making laws,  but  cannot  be enforced by the court as  a  rule  of constitutional law when such function is shirked or  evaded. The American courts are able to enforce the maxim because it has  been  made by the process of judicial  construction  an integral  part of the American Constitution as  a  necessary corollary of the doctrine of separation of powers.  But  the position in India, as pointed out above, is entirely differ- ent,  and the courts in this country cannot strike  down  an Act of Parliament as unconstitutional merely because Parlia- ment decides in a particular instance to entrust its  legis- lative  power to another in whom it has confidence,  or,  in other  words  to exercise such power through  its  appointed instrumentality,  however repugnant such entrustment may  be to the democratic process.  What may be regarded as  politi- cally undesirable is constitutionally competent.     Mr.  Chatterjee also attempted to spell out  an  implied prohibition  against delegation on the strength  of  article 357  (1) (a) which provides specifically for  delegation  by the  President of the law-making powers conferred on him  by Parliament in case of failure of constitutional machinery in

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States.   This express provision, it is claimed, shows  that whenever the makers of the Constitution wanted to  authorise delegation  of  legislative powers they have  made  specific provision  in  that behalf and, in the absence of  any  such provision  in other cases, no delegation of such  powers  is permissible.  I see no force in this argument.   Merely  be- cause  in  a particular instance of rare  and  extraordinary occurrence an express provision authorising the President to delegate to another the  law-making powers conferred on  him by Parliament is made in the Constitution, it is not reason- able  to infer that it was intended to prohibit the  delega- tion  of  powers in  all other cases.  The  maxim  expressio unius est exclusio alterius is not one of universal applica- tion,  and it is inconceivable that the framers of the  Con- stitution could have intended to deny to the Indian Legisla- tures 885 a  power which, as we have seen, has been recognised on  all hands as a desirable, if not, a necessary con-      comitant of  legislative  activity  in  modern   States      America, having  started with a rule against delegation         as  a necessary corollary of the constitutional doctrine        of separation  of powers, has made and is  making      numerous inroads  on  the rule, and English  constitutional  law  has allowed, as we have seen, even to subordinate  legislatures, the widest latitude to delegate their legislative powers  so long  as they retain their own law-making  capacity  intact. In such circumstances, a provision for express delegation in a  remote contingency is far too flimsy a ground for  infer- ring a general prohibition against delegation of legislative power  in all other eases.  In this connection, it  will  be useful to recall Lord Selborne’s observation in Burah’s case that all that the court has to see in adjudging an enactment constitutional is "that it violates no express condition  or restriction  by which the law-making power conferred on  the legislature is limited, and that it is not for the court  to enlarge  constructively those conditions and  restrictions," and as recently as 1944, the Privy Council, as we have  seen in  Benoari  Lal Sharma’s case referred to what  has  always been regarded as an established doctrine of English  consti- tutional law, namely, that the Indian legislature could  do, in the matter of delegating its legislative powers, what the British Parliament could do.  It would indeed be strange if, in  framing the constitution of the Independent Republic  of India  at  the present day, its makers were  to  ignore  the experience  of legislative bodies all the world over and  to deny  to Parliament a power which its  predecessors  unques- tionably possessed.  I have no hesitation in rejecting  this argument.     In  the result, I hold that section 7 of the Delhi  Laws Act,  1912,  section 2 of the  Ajmer-Merwara  (Extension  of Laws)  Act, 1947, and section 2 of the Part C States  (Laws) Act,  1950, are in their entirety constitutional  and  valid and I answer the reference accordingly. 886 MAHAJAN J.--In exercise of the powers conferred by clause (1) of  article 143  of  the Constitution the  Presi- dent  of India has referred the following questions to  this Court for its opinion :--     (1) Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the legislature which  passed the said Act ?     (2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or  any of the provisions thereof and in what particular  or

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particulars  and to what extent ultra vires the  legislature which passed the said Act ?     (a)  Was section 2 of Part C States (Laws)Act, 1950,  or any  of  the provisions thereof and in  what  particular  or particulars and to what extent ultra vires the Parliament ?     The  reference  raises  questions  of  great  importance concerning the administration of the affairs of the Republic and  is the first one of the kind since the inauguration  of the  new  constitution.   The only point  canvassed  in  the reference is as to the vires of the laws mentioned  therein. It was contended by the learned Attorney-General that legis- lative  power  without authority or power to delegate  is  a futility  and  that unless legislative power  includes.  the power to delegate, power to administer will be  ineffective. It  was  suggested  that the true nature and  scope  of  the legislative  power  of Parliament involves as  part  of  its content  power to confer law-making powers upon  authorities other  than  Parliament itself and that this  is  a  natural consequence of the doctrine of the supremacy of  Parliament. It  was said that the Indian legislature when acting  within the  ambit  of its legislative power has plenary  powers  of legislation  as large and of the same nature as the  British Parliament and unless the prescribed limits are exceeded, no question of ultra vires can possibly arise, that the  proper approach  to the question is "Look at the terms of  the  in- strument  by which affirmatively the legislative powers  are created  and  by which negatively they are  restricted.   If what 887 has been done is legislation within the general scope of the affirmative words which give the power and if it violates no express  condition  or  restriction by which  the  power  is limited,  it is not for any court of justice, to enquire  or to    enlarge    constructively   those    conditions    and restrictions."(1)  Reliance was also placed on the  legisla- tive  practice in India and other countries of the the  Com- monwealth sanctioning constitutionality of statutes drawn up in the same form as the impugned enactments.     The  questions referred cover’three distinct periods  of legislation  in the constitutional and political history  of this country. The first question relates to the period  when the  government of this country was unitary in form and  was constituted under the Indian Councils Act, 1861, as  amended from time to time up to the stage of the introduction of the Morley-Minto  Reforms, when the Indian Legislature  achieved the  status  of a political debating society and when  as  a result of the undoing of the partition of Bengal the capital of India was transferred from Calcutta to Delhi. The unitary form  of  government was changed after the  different  Round Table Conferences in London into a Federation by the Consti- tution  Act’of  1935.   This Act  with  certain  adaptations remained  in  force till 26th January, 1950,  when  the  new constitution  was inaugurated. Under the  Independence  Act, 1947, India became a Dominion of the British Empire but  the legislative power of the Parliament of the Dominion remained within the ambit of the Constitution Act of 1935, though the Parliament as a Constituent Assembly was conferred unlimited powers like that of a sovereign. The federal form of govern- ment that had been adopted ’by the Constitution Act of  1935 was also adopted by the framers of the new constitution. The second  question  relates to the period when India  had  at- tained  the status of a dominion under the Indian  Independ- ence  Act, while the last question concerns the  legislative competency  of Parliament under the new constitution of  the Republic of India.

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(1) Queen v. Burah, 5 I.A. 178. 888    It  is  futile to ask in the year of grace  1951  whether delegated  legislation  is necessary or not.  This  kind  of legislation  is  only  a special aspect of  the  problem  of administrative  discretion.  The  necessity  of   delegating rule-making  power  on the largest scale  to  administrative authorities  is  as much a basic fact of  modern  industrial society  as the assumption by the State of  certain  obliga- tions of social welfare. The problem, however, is how  dele- gated legislation and administrative discretion are confined and  controlled so as to comply with the elementary  princi- ples  of  law in a democratic society.  The  answer  to  the problem has to be found within the ambit of the constitution of  the  country concerned and on the  construction  that  a lawyer or a jurist would place on it with a constructive and not a purely legalistic approach.  In this back ground it is instructive to see how the question has been solved in other countries.     It was customary for the mother of Parliaments told ele- gate  minor legislative power  to   subordinate  authorities and  bodies. Some people took the view that such  delegation was wholly unwise and should be dispensed with. Prof. Dicey, however,  pointed out that it was futile for  Parliament  to endeavour  to work out details of large legislative  changes and  that  such anendeavour would result in  cumbersome  and prolix statutes. Blackstone remarked that power of this kind were  essential to the effective conduct of the  government. Constitutional  practice grew up gradually as and  when  the need  arose  in Parliament, without a  logical  system,  and power  was  delegated  by Parliament  for  various  reasons: because  ’the topic required much detail, or because it  was technical,  or because of pressure of other demands on  par- liamentary time. The Parliament being supreme and its  power being  unlimited,  it  did what it thought  was  right.  The doctrine  of ultra vires has no roots whatever in a  country where  the  doctrine of supremacy of  Parliament  holds  the field. The sovereignty of Parliament is an idea fundamental- ly inconsistent with the notions which govern inflexible and rigid constitutions existing in countries 889 which have adopted any scheme of representative  government. In  England supremacy of law only means the right of  judges to control the executive and it has no greater constitution- al  value than that.  The basis of power in England  is  the legal supremacy of Parliament and its unrestricted power  to make  law. In the words of Coke, "It is so transcendent  and absolute  as  it  cannot be confined either  for  causes  or persons within any bounds," or again, as Blackstone put  it, "An act of Parliament is the exercise of the highest author- ity that this kingdom acknowledges upon earth. It hath power to bind every subject in the land, and the dominions  there- unto belonging; nay, even the King himself, if  particularly named  therein. And it cannot be altered amended,  dispensed with,  suspended or repealed, but in the same forms  and  by the same authority of Parliament." (1).     The  Parliament being a legal omnipotent  despot,  apart from being a legislature simpliciter, it can in exercise  of its  sovereign power delegate its legislative  functions  or even  create  new bodies conferring on them  power  to  make laws.   The power of delegation is not necessarily  implicit in its power to make laws but it may well be implicit in its omnipotence  as an absolute sovereign. Whether it  exercises its power of delegation of legislative power in its capacity as  a mere legislature or in its capacity as  an  omnipotent

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despot,  it is not possible to test it on the touchstone  of judicial precedent or judicial scrutiny as courts of justice in England cannot inquire into it. ’The assertion  therefore that this power Parliament exercises in its purely  legisla- tive  capacity  has no greater value than that  of  an  ipse dixit.  For these reasons I am in respectful agreement  with the view of that eminent judge and jurist, Varadachariar J., expressed  in Benoari Lal arma’s case(2) that the  constitu- tional position in India    approximates more closely to the American model than to the English model and on this subject the  decisions of the United States so far as they lay  down any principle are a valuable guide on this question. (1)  Vide Allen "Law in the Making " 3rd Edn., p.  367. (2) [1943] F.C.R. 96. 890     This view finds support also from the circumstance  that the  constitutions  of the two countries  are  fundamentally different  in kind and character. They fail in two  distinct classes  having  different characteristics.  England  has  a unitary  form of’ government with a  flexible  constitution, while  in India we have always had a rigid constitution  and since  1935 it is federal in form. It is unsafe,  therefore, to make any deductions from the legislative power  exercised under a system of government which is basically different in kind and not merely in degree from the other on the question of  its legislative competency and reach conclusions on  the basis of such deductions. In my opinion, search for a  solu- tion  of  the problem referred to us in  that  direction  is bound  to produce no results. I have, therefore, no  hesita- tion  in rejecting the contention of the  learned  Attorney- General  that  the answer to the questions  referred  to  us should be returned by reference to, the exercise of power of Parliament in the matter of delegation of legislative  power to the executive.     It may, however, be observed that in spite of the widest powers possessed by the British Parliament, it has adopted a policy of self-abnegation in the matter of delegated  legis- lation.   A committee was appointed to report on the  Minis- ters’ powers, popularly known as the Donoughmore  Committee. It  made  its recommendations and stated the  limits  within which  power of delegated legislation should  be  exercised. Means  were later on adopted for keeping a watchful  eye  on such  legislation.  The Donoughmore Committee  discovered  a few  instances  of cases where delegation had  gone  to  the extent of giving a limited power of modifying  Parliamentary statutes.   One of these instances was in section 20 of  the Mental  Treatment  Act, 1930 (20 & 21 Geo. V,  c.  23).   It empowered  the  Minister of Health by order  to  modify  the wording of an enactment so far as was necessary to bring  it into  conformity  with the provisions of the  section.   The whole section related to terminology, its intention being to replace  certain  statutory expressions in previous  use  by others which at the moment were regarded less 891 offensive. The other instance was found in section 76 of the Local  Government  Scotland Act, 1929, (19 & 20 Geo.  V,  c. 25).  By this section the Secretary of State  was  empowered between 16th May, 1929, and 31st December, 1930, by order to make any adaptation or modification in the provisions of any Act  necessary to bring these provisions in conformity  with the  provisions  of other Acts. Such a clause in  a  statute bore  the  nickname "Henry VIII clause". Concerning  it  the Committee made the following recommendation: "The use of the so-called  Henry VIII clause conferring power on a  Minister to  modify  the provisions of Acts of  Parliament  (hitherto

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limited to such amendments as may appear to him to be neces- sary for the purpose of bringing the statute into operation) should  be abandoned in all but most exceptional  cases  and should  not be permitted by Parliament except upon   special grounds  stated  in a ministerial memorandum  to  the  bill. Henry  VIII clause should never be used except for the  sole purpose  of bringing the Act into operation but  subject  to the limit of one year."     The  language in which this  recommendation  is  couched clearly indicates that even in a country where Parliament is supreme  the power of modifying Parliamentary  statutes  has never  been exercised except in the manner indicated in  the above recommendation, and even as regards that limited power the  recommendation  was that the exercise of it  should  be abandoned.  It  is significant that since  then  Henry  VIII clause has not been used by Parliament.     The  Dominion of Canada has a written constitution,  The British North Amercia Act (30 & 31 Vict., c. 31). It is  not modelled  on  the doctrine of exclusive  division  of  power between the departments of State, legislative, executive and judicial.   It  does  not place them  in  three  water-tight compartments  and  it is somewhat similar in shape  in  this respect to the British constitution where the King is  still a  part of the legislature, the House of Lords still a  part of  the judicial as well as legislative and where all  parts of government form 892 a  mutual check upon each other. This  similarity,  however, does not mean that the legislature in Canada is of the  same kind  as the British Parliament.  It falls in the  class  of non-sovereign  legislatures, like all colonial  parliaments. The decisions of Canadian courts are by no means  uniform on the power of the Canadian Parliament to delegate legislative power.  Those cited to us of recent date seem to  have  been given under the pressure of the two world wars and under the provisions  of the War Measures Act. With great respect  and in  all humility, I am constrained to observe that in  these decisions,  to establish the vires of the powers  delegated, arguments  have  been pressed into service which are  by  no means  convincing or which can be said to be based on  sound juristic  principles.  They  can only be  justified  on  the ground that during a period of emergency and danger to   the State  the  dominion parliament can make  laws     which  in peace  time  it  has no competency to enact.   There  are  a number  of  Privy  Council decisions  which  have  concerned themselves  with  the  vires of  legislative  enactments  in Canada  which  purported to transfer  legislative  power  to outside authorities and it seems to me that these  decisions furnish a better guide to the solution of the problem before us  than the later decisions of the Supreme Court of  Canada which  seemingly  derive support from  these  Privy  Council decisions for the rules stated therein.     The  first of these decisions is in the case of  Russell v.  The Queen(1) decided in 1882. Two questions were  raised in  the  appeal.  The first was as to the  validity  of  the Canada  Temperance  Act,  1878.  It was  urged  that  having regard  to the provisions of the British North America  Act, 1867, relating to the distribution of legislative powers  it was  not competent for the Parliament of Canada to pass  the Act  in question. The second question was that even  if  the Dominion Parliament possessed the powers which it assumed to exercise by the Act, it had no power to delegate them (1) 7 App. Cas. 829, 893 and  to give local authorities the right to say whether  the

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provisions of the Act should be operative or not. It is  the second  question  which is relevant to the  present  enquiry the mode of bringing the second part of the Act into  force, stating it succinctly, was as follows:     "On a petition to the Governor in Council, signed by not less than one fourth in number of the electors of any county or city in the Dominion qualified to vote at the election of a  member of the House of Commons, praying that  the  second part  of the Act should be in force and take effect in  such county  or city, and that the votes of all the  electors  be taken  for  or  against the adoption of  the  petition,  the GovernorGeneral,  after certain prescribed notices and  evi- dence,  may issue a proclamation, embodying  such  petition, with  a  view to a poll of the electors being taken  for  or against its adoption.  When any petition has been adopted by the  electors of the county or city named in it, the  Gover- nor-General  in Council may, after the expiration  of  sixty days  from  the day on which the petition  was  adopted,  by Order in Council published in the Gazette, declare that  the second part of the Act shall be in force and take effect  in such county or city, and the same is then to become of force and take effect accordingly."     It  was urged before their Lordships that assuming  that the  Parliament  of Canada had authority to pass a  law  for prohibiting and regulating the sale of intoxicating liquors, it could not delegate its powers, and that it had done so by delegating the power to bring into force the prohibitory and penal provisions of the Act to a majority of the electors of counties  and cities. Their Lordships’ answer to  the  coun- sel’s contention was in these words :--     "The short answer to this objection is that the Act does not  delegate any legislative powers whatever.  It  contains within  itself  the whole legislation on  the  matters  with which it deals.  The provision that certain parts of the Act shall come into operation only 894 on the petition of a majority of electors does not confer on these persons power to legislate.  Parliament itself  enacts the  condition and everything which is to follow   upon  the condition being fulfilled.  Conditional legislation of  this kind  is  in  many cases convenient, and  is  certainly  not unusual,  and the power so to legislate cannot be denied  to the Parliament of Canada, when the subject of legislation is within  its competency. Their Lordships entirely agree  with the opinion of Chief Justice Ritchie on this objection.   If authority  on the point were necessary, it will be found  in the case of Queen v. Burah(1), lately before this Board."     It  seems  to  me that their  Lordships  acquiesced  and assented  in  the proposition urged by the  learned  counsel that  delegation  of legislative power was  not  permissible when  they combated his arguments with the remark  that  the Act  does  not  delegate  any  legislative  power  whatever. Otherwise, the short answer to the objection was that  dele- gation of legislative power was implicit within the power of legislation possessed by the legislature.  It was not neces- sary  to  base  the decision on the  ground  of  conditional legislation.     Though  Queen  v. Burgh(1) was an appeal from  the  High Court of Bengal, a reference was made to it and the decision therein  was mentioned as laying down an apposite  rule  for the decision of cases arising under the British North Ameri- ca Act, 1867.  In order to appreciate and apprehend the rule to  which  their Lordships gave approval in the  above  men- tioned  case,  it seems necessary to  state  precisely  what Queen  v. Burgh(1) decided. Act XXII of 1869 of the  Council

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of  the Governor-General of India which is entitled "An  Act to remove the Garo Hills from the jurisdiction of the tribu- nals established under the General Regulations and Acts, and for  other purposes" among other things provided as  follows :--     "Sec. 4. Save  as  hereinafter  provided,  the territory known  as the Garo Hills......  is hereby removed  from  the jurisdiction of the  Courts of Civil and (1) 5 I.A, 178. 895 Criminal Judicature, and from the control of the offices  of revenue  constituted by the Regulations of the  Bengal  Code and  the  Acts passed by any legislature now  or  heretofore established  in  British India, as well from  the  law  pre- scribed  for the said courts and offices by the  Regulations and  Acts  aforesaid.  And no Act hereafter  passed  by  the Council of the Governor General for making Laws and  Regula- tions  shall  be deemed to extend to any part  of  the  said territory, unless the same be specially named therein.     Sec.  5. The administration of civil and  criminal  jus- tice, and the superintendence of the settlement and realiza- tion  of the public revenue, and of all matters relating  to rent,  within the said territory, are hereby vested in  such officers  as the said Lieutenant-Governor may, for the  pur- pose  of  tribunals of first instance or  of  reference  and appeal, from time to time appoint. The officers so appointed shall,  in the matter of the administration   and   superin- tendence   aforesaid, be subject to the direction  and  con- trol  of the said Lieutenant-Governor and be guided by  such instructions as he may from time to time issue.     Sec.  8. The said Lieutenant-Governor may from  time  to time by notification in the Calcutta Gazette, extend to  the said  territory any law, or any portion of any law,  now  in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the  Gover- nor-General, or of the said Lieutenant-Governor, for  making laws  and  regulations,  and may on  making  such  extension direct  by whom any powers or duties incident to the  provi- sions so extended shall be exercised or performed, and  make any  order which he shall deem requisite for  carrying  such provisions into operation.     Sec.  9. The said Lieutenant-Governor may from  time  to time, by notification in the Calcutta Gazette extend mutatis mutandis all or any of the provisions contained in the other sections  of this Act to the Jaintia Hills, the Naga  Hills, and to such portion of the Khasi Hills as for the time being forms part of British India." 896      Under the provisions of the Act the Lieutenant Governor of Bengal on the 14th October, 1871, issued  a  notification and in exercise of the powers conferred  upon him by section 9, he extended the provisions of the said Act to the  terri- tory  known  as  the Khasi and Jaintia  Hills  and  excluded therefrom the jurisdiction of the Courts of Civil and Crimi- nal Judicature, and specified in the notification the bound- aries  of the said territory. The notification extended  all the  provisions  of the Act to the districts  of  Khasi  and Jaintia Hills. The Lieutenant-Governor did not exercise  the power of selecting parts of these Acts for purposes of local application. Section 9 of the Act did not empower the  Lieu- tenant-Governor to modify any of the provisions of the  Act. The  High Court of Bengal by a majority judgment  held  that the  notification had no legal force or effect  in  removing the  said territories from the jurisdiction which  the  High Court  had  previously possessed over it,  inasmuch  as  the

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Council of the Governor-General of India for making laws and regulations had under its constitution, by the Councils Act, 1861,   no   power  to  delegate  such  authority   to   the Lieutenant-Governor  as it had by Act XXII of 1869  in  fact purported to delegate.  The Indian Councils Act, 1861, 24  & 25 Vict. c. 67, by section 22, gave the Governor-General  in Council   power   for  the  purpose  of  making   laws   and regulation$,  power for repealing, amending or altering  any laws or regulations whatever then in force or thereafter  to be  in force and to make laws and regulations for  all  per- sons,  whether British or native, foreigners or others,  and for  all courts of justice whatever, and for all places  and things  whatever  within the said territories, and  for  all servants of the Government of India within the dominions  of princes and states, provided always that the said  Governor- General  in Council shall not have the power of  making  any laws or regulations which shall repeal or in any way  affect any  of the provisions of the Act. As regards section  9  of the Act their Lordships made the following observations :-- 897     "The ground of the decision to that effect of the major- ity  of  the  Judges of the High Court  was,  that  the  9th section was not legislation, but was a delegation of  legis- lative power.  In the leading judgment of Mr. Justice  Mark- by,   the  principles  of the 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 princi- ple  thus suggested were correct, and justified the  conclu- sion  drawn  from  it, they would be unable  to  follow  the distinction made by the majority of the Judges  between  the power  conferred upon  the Lieutenant-Governor of Bengal  by the  2nd and that conferred on him by the 9th section.   If, by the 9th section, it is left to the Lieutenant-Governor to determine  whether  the  Act, or any part of  it,  shall  be applied to a certain district, by the 2nd section it is also left  to him to determine at what time that Act  shall  take effect as law anywhere.  Legislation which does not directly fix the period for its own commencement, but leaves that  to be  done  by an external authority, may with quite  as  much reason  be called incomplete, as that which does not  itself immediately  determine the whole area to which it is  to  be applied,  but  leaves this to be done by the  same  external authority. If it is an act of 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 a fortiori to be an act of legislation to bring the law originally  into operation by fixing the time for  its  com- mencement.     "But their Lordships are of opinion that the doctrine of the  majority of the Court is erroneous, and that  it  rests upon  a mistaken view of the powers of the Indian   Legisla- ture,  and indeed of the nature and principles  of  legisla- tion.   The Indian Legislature has powers expressly  limited by the Act of the Imperial Parliament which created it,  and it can, of course, do 898 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. The  established courts of justice, when a  question  arises

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whether  the prescribed limits have been exceeded,  must  of necessity determine that question; and the only way in which they  can properly do so, is by looking to the terms of  the instrument by which,  affirmatively, the legislative  powers were 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 power, and  if it  violates  no express condition or restriction  by  which that  power is limited (in which category would, of  course, be  included any Act of the Imperial Parliament at  variance with  it),  it is not for any court of  justice  to  inquire further,  or to enlarge constructively those conditions  and restrictions."     The  learned Attorney-General placed considerable  reli- ance  on  these observations in support of  his  proposition that  if  the legislation is within the ambit of  the  field prescribed  for exercise of legislative power, then from  it it follows that within that field power can be exercised  to delegate  to  the widest extent.  This  quotation,  however, cannot  be  torn off from the context and  read  by  itself. Meaning can only be given to these observations in the light of  the observations that follow the quotation  cited  above and which are in these terms :--                          "     "Their  Lordships agree that  the  Governor General   in Council  could  not, by  any form of enactment,  create’  in India,  and  arm with general legislative  authority  a  new legislative power not created or authorised by the  Councils Act.  Nothing of that kind has, in their Lordships’ opinion, been  done or attempted in the present case.  What has  been done  is this.  The Governor-General in Council  has  deter- mined,  in  the due and ordinary course of  legislation,  to remove a particular district from the 899 jurisdiction  of  the ordinary courts and  offices,  and  to place  it under new courts and offices, to be  appointed  by and responsible to the Lieutenant-Governor of Bengal;  leav- ing it to the Lieutenant-Governor to say   at what time that change shall take place; and also enabling him, not to  make what  law he pleases for that or any other district, but  to apply  by public notification to that district any  law,  or part of law, which either already was, or from time to  time might be, in force, by proper legislative authority, in  the other  territories subject to his government.  The  legisla- ture  determined that, so far, a certain change should  take place; but that it was expedient to leave the time, and  the manner  of carrying it into effect to the discretion of  the Lieutenant-Governor;  and also, that the laws which were  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 not 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-Gover- nor......     "Their Lordships think that it is a fallacy to speak  of the  powers  thus  conferred upon  the  Lieutenant  Governor (large  as  they  undoubtedly are) as  if,  when  they  were exercised, the efficacy of 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  Act (XXII of 1869) itself.  The proper legislature has exercised its  judgment  as to place, person, laws,  powers;  and  the result of that judgment has been to legislate  conditionally as  to  all these things. The conditions  having  been  ful-

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filled,  the  legislation is now  absolute.   Where  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 of particular powers, or on the exercise of a limit- ed 116 900 discretion, entrusted by the legislature to persons in  whom it  places  confidence, is no uncommon thing; and,  in  many circumstances,  it  may be highly convenient.   The  British Statute book  abounds with examples of it; and it cannot  be supposed that the Imperial Parliament did not, when  consti- tuting  the  Indian Legislature, contemplate  this  kind  of conditional legislation as within the scope of the  legisla- tive  powers which it from time to time conferred.  It  cer- tainly used no words to exclude it."      Towards the close of the judgment certain illustrations were  mentioned of legislation in India described as  condi- tional legislation. Reference was made to the Codes of Civil and  Criminal Procedure and particularly, section 39 of  Act XXIII of 1861 which authorised the Local Government with the previous sanction of the Governor-General in Council (not in his legislative capacity) to  extend  the provisions of  the Act "subject to any restriction, limitation or proviso which the Local Government may think’proper."      In  my  opinion, in this case their Lordships  did  not affirmatively  assent  to the proposition  that  the  Indian Legislature had full power of delegation within the ambit of its  legislative  field and they did not  dissent  from  the conclusion of Markby J. in the concluding part of the  judg- ment  that  under  general principles of law  in  India  any substantial delegation of legislative power by the  legisla- ture  of the country was void. On the other hand,  they  re- marked that legislation of this kind was conditional  legis- lation  and  it only becomes complete on the  fulfilment  of those conditions and that the determination of those  condi- tions  could be left to an external authority.  In spite  of expressing their disapproval of the view of the majority  of the Full Bench in applying the principles of the doctrine of agency and in treating the Indian Legislature as an agent of the  Imperial Parliament, their Lordships clearly  expressed the  opinion that the exercise of the legislative  will  and judgment  could not be transferred to an external  authority and  that it was for the proper legislature to exercise  its own judgment as to the. 901 place, persons, laws and powers.  It seems to me that though their Lordships were not prepared to assent to the  proposi- tion  that  the matter should be dealt  with  on  principles deducible from the doctrine of the law of agency, they  were also  not prepared to depart from the rule that  apart  from the doctrine of the law of agency a person to whom an office or  duty  is assigned or entrusted by reason  of  a  special qualification  cannot  lawfully  devolve  that   duty   upon another unless expressly authorised so to do.  Public  func- tionaries charged with the performance of public duties have to execute them according to their own judgment and  discre- tion  except  to the extent that it is necessary  to  employ ministerial officers to effectively discharge those duties.     For the reasons given above presumably the Privy Council was not prepared to lay down that delegation of  legislative power was a content of the power itself. It contented itself by holding the law valid under the name and style of  condi-

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tional  legislation.  It is difficult to conceive  that  the Privy  Council would have hesitated in saying so if it  felt that  delegation of legislative power was a content  of  the power itself. Reference in this connection may be  made to a passage in the judgment of Markby J. which reads thus :---     The  various Parliamentary statutes nowhere  confer  any express  power  upon the Indian Legislature  to  change  the machinery of legislation in India.  But they do confer  that power  subject to important restrictions upon the  executive government.   Mr.  Kennedy  boldly claimed  for  the  Indian Legislative Council the power to transfer legislative  func- tions  to  the Lieutenant Governor of Bengal.  Indeed  as  I understand  him, the only restriction he would  attempt  was that the Legislative Council could not destroy its own power to  legislate  though  I see no reason why  he  should  stop there. The Advocate-General did not go so far. There are  no words  in the Acts of Parliament upon which the  legislative authority  could be made transferable in one class of  cases and not in others because I do not 902 for  a  moment suggest that every time a discretion  is  en- trusted  to  others  there is the  transfer  of  legislative authority.  Every Act of the legislature abounds with  exam- ples  of  discretion  entrusted to  judicial  and  executive officers  of government, the legality of which no one  would think of questioning.  ’the broad question, however, is’ Can the  legislature confer on the Lieutenant-Governor  legisla- tive  power?’ Answer: ’It is a general principle of  law  in India that any substantial delegation of legislative author- ity by the legislature of this country is void’."     It was then contended that the illustration cited in the concluding part of the judgment of their Lordships  suggests their approval of the proposition that the legislative power could  be  delegated conferring power to  modify  a  statute passed  by the legislature itself. This contention seems  to be based on a misapprehension of what their Lordships decid- ed.   In the Full Bench decision of the Calcutta High  Court in  Empress v. Burgh & Book  Singh(1) Markby J.   made   the following  observations while dealing with  these  illustra- tions :--     "Lastly  it was argued that the Indian  Legislature  had done so (delegated power) for a long series of years, and  a long  list  of Acts passed between 1845 and  1868  has  been handed  in to us, all of which, it is said, must be  treated as instances of delegation of legislative authority and  Act XXII  of 1869 should be so treated.  The Acts  contained  in the list do not appear to me to afford (as was asserted)  so many clear and undisputed instances of transfer of  legisla- tive  authority.  I may  observe that as to  the  provisions which  these and many other Acts contain for the  making  of rules by executive government in conformity with the Act  we have the highest authority in Biddie v. Tariney Churn Baner- jee(2)  that the power to make such rules may  be  conferred without  delegation of legislative  authority.........   The list of Acts does not seem to me to show any clear  practice of transferring legislative authority." (1) I.L.R. 3 Cal. 63.            (2) 1 Tay. & Bell, 390. 903     Ainslie  J.  specifically considered the  provisions  of section 39 of Act XXIII of 1861 and the meaning of the words "reservations  ", "limitations" and "provisos" and  said  as follows :--     "The provisions of section 39, Act XXIII of 1861, do not affect my view of this matter.  This section allows a  local Government,  with  the previous sanction  of  the  Governor-

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General in Council, to annex any restriction, limitation, or proviso it may think proper when extending the Code of Civil Procedure to any territory not subject to the general  regu- lations;  but  this is merely another form of  delaying  the full  extension  of  the Code. So far as  the  Code  obtains operation, it is still, because the extension is pro  tanto, a carrying out of the intention of the superior  legislature that this shall be sooner or later the law in the particular tract of country.  As I read the section, no power is  given to  amend  the law itself; it is only a power to  keep  some portion  in abeyance or to make its operation contingent  on something  external to it, which again is only another  form of postponing its full operation."     No  doubt was cast on this construction of the  language of  section 39 either in the minority judgment of  the  High Court  or  in the judgment of their Lordships of  the  Privy Council.   In  view of this clear expression of  opinion  of Ainslie J. as to the meaning of the language used in section 39  and  not  disapproved by their Lordships  of  the  Privy Council  it  cannot with any force be contended  that  their Lordships in Burahs case(1) gave approval to the proposition that  the  power of conditional  legislation   included  the power of amendment or modification of the Act of the  legis- lature itself.  In my  opinion,  the result of the  decision in  Burah’s case(1) is that it was decided that  the  Indian Legislature  had  power to  conditionally  legislate.   This case  is  no  authority for the proposition  that  it  could delegate the exercise of its judgment on the question as  to what  the  law should be to an external agency.   This  case does not support the (1) 5 I.A. 178. 904 proposition  that amendment of a statute of the  legislature itself is a matter which could form the subject of delegated legislation.  The expression that Indian  Legislature  could not  arm with legislative power a new legislative  body  not created  by the Indian Councils Act only means that it  must function itself in making laws and not confer this power  on any other body. In other words, it could not create a person having  co-extensive  power  of legislation  and  could  not clothe  it with its own capacity of law making, that  is  in laying  down  principles  and policies.  The  possession  of plenary  powers within the ambit laid down only  means  that within  that particular field it can make any laws on  those subjects, but it does not mean that it can shirk its duty in enacting  laws within the field by making    a law  that  it shall  not  itself operate on that field but  somebody  else will operate on its behalf. In my opinion, their  Lordships’ judgment  amounts  to saying that though  within  the  field prescribed  it has the largest power of legislation, yet  at the same time it is subject to the condition that it  cannot abandon formally or virtually its high trust.      Hodge v. The Queen(1) was the next Canadian case decid- ed  by the Privy Council in 1883.  The appellant Hodge,  was the  holder of a liquor licence issued on 25th April,  1881, by the Board of Licence Commissioners for the City of Toron- to  under the Liquor Licence Act of the Province of  Ontario in  respect of the St. James Hotel.  He was also the  holder of  a  licence  under the authority of  the  Municipal  Act, authorising  him to  carry on the business or calling  of  a keeper  of a billiard saloon with one table for  hire.   The appellant  did on the 7th May, 1881, unlawfully  permit  and suffer  a billiard table to be used and a game of  billiards to be played thereon, in his tavern during the time  prohib- ited  by the Liquor Licence Act for sale of liquor  therein.

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It was urged that the Ontario Assembly was not competent  to legislate  in regard to licences for the sale of liquor  and that  even  if the Ontario legislature could, it  could  not delegate its power to Licence Commissioners. ( 1) 9 App. Cas. 117. 905 The  local legislature had assigned to three  officials  the power to define offences and impose penalties.  This conten- tion  was met with the plea that there was no delegation  of legislative  authority  but only of the  power to  make  by- laws.  The Court of the King’s Bench Division held that  the local legislature had no power to delegate in the matter and that such power could be exercised by the legislature alone. The Court of Appeal reversed this decision and it was upheld by  their Lordships of the Privy Council. It was found  that sections 4 and 5 of the Liquor Licence Act were intra  vires the  constitution.   In the course of their  judgment  their Lordships made the following observations:-     "It appears to their Lordships, however, that the objec- tion  thus raised by the appellants is founded on an  entire misconception  of  the true character and  position  of  the provincial legislatures.  They are in no sense delegates  of or  acting under any mandate from the  Imperial  Parliament. When the British North America Act enacted that there should be  a  legislature  for Ontario, and  that  its  legislative assembly  should have exclusive authority to make  laws  for the Province and for provincial purposes in relation to  the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the  Imperial  Parliament, but authority as plenary  and  as ample  within  the limits prescribed by section  92  as  the Imperial Parliament in the plenitude of its power  possessed and could bestow.  Within these limits of subjects and  area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the  Domin- ion, would have had under like circumstances to confide to a municipal institution or body of its own creation  authority to  make by-laws or resolutions as to subjects specified  in the enactment, and with the object of carrying the enactment into operation and effect.     It  is  obvious that such an authority is  ancillary  to legislation,  and without it an attempt for varying  details and machinery to carry them out might 906   become  oppressive,  or absolutely fail,  The  very   full and  very elaborate judgment of the Court of    Appeal  con- tains  abundance  of precedents  for  this      legislation, entrusting a limited discretionary authority to others,  and has many illustrations of its necessity and convenience.  It was  argued  at  ’the bar that    a  legislature  committing important  regulations  to  agents    or  delegates  effaces itself.   That is not so.  It retains   its  powers  intact, and  can, whenever it pleases, destroy   the agency  it  has created  and set up another, or take   the  matter  directly into  its  own hands.  How far it   shall seek  the  aid  of subordinate agencies, and how   long it shall continue them, are  matters for each legis to decide. "lature, and not  for courts of law      This case, in my opinion, decided the  following points :--(1)  Power to make by-laws or regulations as to  subjects specified  in the enactment and with the object of  carrying that enactment into operation and effect can be  transferred to  municipal  ’institutions or local bodies.  (2)  Such  an authority  is  ancillary to legislation.   (3)  Giving  such power of making regulations to agents and delegates does not

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amount to an effacement of the legislature itself. The  case does not sanction the proposition that power to amend or  to modify  a  statute passed by the legislature itself  can  be delegated. Power of amending a statute or altering it cannot be  described  as ancillary to legislation, nor  is  such  a power within the armit of the doctrine of subsidiary  legis- lation.   It  is significant, that their  Lordships  of  the Privy Council never  gave their approval to the wide  propo- sition  that  what  the legislature itself can  do,  it  can employ an agent with coextensive powers for doing the  Same. They have been careful in saying to what extent and in  what measure delegation was permissible. All that they  sactioned was  delegation  of authority  ancillary to  legislation  or delegation to municipal institutions to make regulations and by-laws  and  no more.  It was not held by  their  Lordships that  power to declare what the law shall be could  ever  be delegated  or that such delegation will be intra  vires  the Parliament of Canada or of the 907 Indian  Legislature.  It was contended that  by  implication their  Lordships  held in this case that short  of  effacing itself the legislature could delegate. In my opinion,  there is no justification for placing such  a construction on  the language  used  by  their Lordships while they were  combat- ing  an argument that was placed before them by the  learned counsel.     In re The Initiative and Referendum Act (1) is the third Canadian  case decided by the Privy Council. By the  Initia- tive and Referendum Act of Manitoba the Legislative Assembly sought  to  provide that the laws of the province   will  be made and repealed by the direct vote of the electors instead of  only  by  the Legislative Assembly  whose  members  they elect.   It was held that the powers conferred on a  provin- cial  legislature by section 92 include the power of  amend- ment  of the constitution of the province except as  regards the  office of the Lieutenant-Governor and that the  Initia- tive  and  Referendum  Act of Manitoba excludes  the   Lieu- tenant-Governor   wholly from the new legislative  authority set up and that this was ultra rites the provincial legisla- ture.   The Act was therefore held void.  Lord  Haldane  who delivered  the  opinion of the Privy Council,  after  having found that the Act was ultra vires the legislature, made the following observations:--     "Having  said so much, their Lordships, following  their usual practice of not deciding more than is strictly  neces- sary,  will not deal finally with another  difficulty  which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the court below, to advert to it. Section 92 of the Act of  1867 entrusts the legislative power in a province to its legisla- ture and to that legislature only.  No doubt a body, with  a power  of  legislation on the subjects entrusted  to  it  so ample as that enjoyed by a provincial legislature in Canada, could, while preserving its own capacity intact, seek (1) [1919] A.C. 935. 117 908 the assistance of subordinate agencies as had been done when in  Hodge  v. The Queen (1) the Legislature of  Ontario  was held  entitled  to entrust to a  Board  of     Commissioners authority to enact regulations relating  to taverns; but  it does  not follow that it can create and endow with  its  own capacity  a new legislative power not created by the Act  to which it owes its own existence.  Their Lordships do no more than  draw  attention to the gravity of  the  constitutional

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questions which thus arise."      These observations reiterate the ratio of the  decision in  Hodge v. The Queen(1) and they do not amount  to  saying that power to amend or modify Acts of the legislature itself could  be given by delegation of legislative power.  It  is, however,  important that their Lordships in clear and  unam- biguous  language  laid  it down that  section  92  entrusts legislative  power to its legislature and to  that  legisla- ture only and  to no other.  The principle  underlying  Lord Haldane’s  remarks  is thus stated in Street’s book  on  the Doctrine of Ultra Vires, at page 430:-      "The decision in this case, that the statute was  ultra vires,  did not turn precisely on the ground of  delegation, but these remarks suggest that a legislature will not  ordi- narily be permitted to shift the onus of legislation, though it may legislate as to main principles and leave details  to subordinate agencies."      Reference  may also be made to the case of King v.  Nat Bell Liquors Ltd.(2) The Liquor Act (6 Geo. V, c. 4,  Alber- ta) was held intra vires the power of the province under the British  North America Act, 1867, and it was found  that  it was not ultra vires by reason of being passed pursuant to  a popular vote under the Direct Legislation Act (4 Geo. V,  c. 3, Alberta). Here the law was made by the provincial  legis- lature  itself  and  it was passed in  accordance  with  the regular procedure of the Houses of Legislature. This case is no  authority  for  the contention  raised  by  the  learned Attorney General. Il) 9 App. Cas. 117       (21 [1922] 2 A.C. 128. 909     The  next Canadian case decided by the Privy Council  is reported  in Croft v.  Dunphy(1).  Antismuggling  provisions enacted  operating beyond territorial limits which had  long formed  part of Imperial customs legislation and  presumably were regarded as necessary for its efficacy were held  valid and within the ambit of the constitutional powers. This case does  not suggest any new line of thought, not already  con- sidered  in  Queen v. Burah(2), or Hodge  v.  The  Queen(3). Shannon v. Lower Mainland Dairy Products Board (4) is a case in which the question arose whether Natural Products Market- ing Legislation Scheme of control or regulation and  imposi- tion of licence fees were intra vires the provincial  legis- lature.  It was argued that it was not within the powers  of the provincial legislature to  delegate  legislative   power to the Lieutenant-Governor in Council or to give him further power  of delegation. This contention was met with the  fol- lowing observations :-     "The objection seems subversive of the rights which  the provincial  legislature  enjoys while dealing  with  matters within its ambit.  It is unnecessary to enumerate the  innu- merable occasions on which legislature has entrusted similar powers  to various persons and bodies. On the basis of  past practice the delegation was upheld."     So far as I have been able to ascertain, the past  prac- tice  was in respect of conferring necessary  and  ancillary powers to carry on the policy of a statute.     Reference  was also made to Powell v. Apollo Candle  Co. (5)  decided in the year 1885.  There the question arose  as to the validity of section 133 of the Customs Regulating Act of 1879 which authorizes the levy of certain duties under an Order  in  Council.  The section was held  intra  vires  the constitution.  It  was argued that the power  given  to  the colonial legislature to impose duties was to be executed  by themselves  (1) [1933] A.C. 156.        (4) [1938] A.C. 708.

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(2) 5 I.A. 178.             (5) 10  App. Cas. 282.  (3) 9 App. Cas. 117. 910 only  and  could not be entrusted wholly or in part  to  the Governor  or anybody else.  This objection was  answered  in the following way     "The duties levied under the Order in Council are really levied  by  authority of the Act under which the  order  was issued.   The  legislature has not parted with  its  perfect control of the Governor and has the power of withdrawing  or altering the power entrusted."     On  this construction of the power delegated, that  what the  delegate was doing was done under the authority of  the Act no question of delegation of lawmaking power arises.     Fort  Frances  Pulp & Power Co. v. Manitoba  Free  Press (1),   Co-operative  Committee  on   Japanese  Canadians  v. Attorney-General  for Canada (2), and Cooperative  Committee v.  Attorney-General of Canada (3) cited at the Bar are  not helpful in giving an opinion on the present matter.     Four  recent Canadian cases were cited for  the  extreme view that short of effacing itself Parliament or a  legisla- ture  has the widest power of delegation and that   it  acts intra  vires  the constitution in doing so.   The  first  of these  cases  is In re George Edwin Gray(4).  The  case  was under  section 6 of the War Measures Act, 1914,  which  con- ferred very  wide powers on the Governor-General in  Council for  the efficient prosecution of the war. The decision  was given  by  a  majority of four to two and  in  the  majority judgment the following observations occur :--     "The practice of  authorizing  administrative bodies  to make  regulations  to  carry out the objectives  of  an  act instead  of  setting out all details in the  Act  itself  is well-known  and its legality is unquestioned but it is  said that the power to make such regulations could not  constitu- tionally  be  granted  to such an extent as  to  enable  the express provisions of the statute to be amended or repealed; that under the constitution (1) [1923] A.C. 695.        (3) [1947] A.C. 87. (2) [1947] 1 D.L.R. 577.    (4) 57 S.C.R. (Canada) 150. 911 Parliament  alone is to make laws, the Governor  General  to execute  them and the court to interpret them, then it  fol- lows  that no one of the fundamental branches of  government can constitutionally either  delegate or accept the function of any other branch. In view of Rex v. Halliday(1), I do not think this broad proposition can be maintained.   Parliament cannot  indeed  abdicate its  functions,  within  reasonable limits  at  any rate it can delegate its  power  to  execute government orders.  Such powers must necessarily be  subject to  determination at any rate by Parliament and needless  to say  that  the  acts of the executive  under  its  delegated authority  must  fall within the ambit  of  the  legislative pronouncement  by which this authority is  measured.  It  is true  that Lord Dunedin in Rex v. Halliday(1) said that  the British  Constitution  has entrusted to the  two  Houses  of Parliament  subject to assent by the King an absolute  power untrammelled by  any other circumstance, obedience to  which may  be compelled by a judicial body.  That  undoubtedly  is not the case in this country. Nothing in the Act imposes any limitations on the authority of the Parliament."     To  the  proposition stated in the opening part  of  the quotation there can be no possible objection.  But when  the learned  Judges  proceed to lay down the rule  that  in  the absence  of any limitations in the  constitution  Parliament can  delegate  the power to amend and repeal  laws  made  by

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itself  to  an external authority unless it  amounts  to  an abdication  of its functions does not in my  humble  opinion seem to be sound. In the first instance, these  observations seem  inconsistent with the fundamental proposition  that  a duty entrusted to a particular body of persons and which  is to be performed according to certain procedure by that  body can  be  entrusted to an external agency which is  not  con- trolled by any rules of procedure in the performance of that duty  and which would never have been entrusted  to  perform it.   Moreover, abdication by a legislative body  need   not necessarily amount to a (1) [1917] A.C. 260. 912 complete  effacement  of it.  Abdication may be  partial  or complete.  It would certainly amount to abdication  when  in respect of a subject of legislative list that body  says  it shall  not legislate on that subject but would leave  it  to somebody else to legislate on it.  That would be  delegation of the law-making power which is not authorized. There is no justification for the assumption that the expression  "abdi- cation" is only applicable when there is a total  effacement or  a legal extinction of such a body. In my opinion, it  is the abdication of the power to legislate when a  legislature refuses  to perform its duty of legislating on a  particular subject and entrusts somebody else to perform that  function for  it.   "Abdication" according to the  Oxford  Dictionary means abandonment, either formal or virtual, of  sovereignty or  other high trust. It is virtual abandonment of the  high trust  when the person charged with the trust says to  some- body  else  that the functions entrusted to him in  part  or whole be performed by that other person. Be that as it  may, the point of view contained in the above quotation cannot be supported  on the decisions of their Lordships of the  Privy Council  discussed  in the earlier part  of  this  judgment. Duff J. stated his view in the following way :--      "The  true view of the effect of this type of  legisla- tion  is  that  the subordinate body in  which  a  lawmaking authority is vested by it is intended to act as the agent or the organ of the legislature and that the acts of the  agent take  effect  by virtue of the antecedent  declaration  that they shall have the force of law."      These  observations, in my opinion,--and I  speak  with great  respect--cannot again be justified on  any   juristic principle.   In the matter of making law there cannot be  an anticipatory  sanction  of a law not yet born or  even  con- ceived.   Moreover, an organ of the legislature  for  making laws can only be created by the constitution and not by  the legislature which is itself confided with that power by  the constitution.   The  learned dissenting Judge in  this  case observed  that  a  wholesale surrender of the  will  of  the people to any 913 autocratic  power  would not be justified  either  in  cons- titutional  law or by the past history of  their  ancestors. These  observations  were made in respect to  the  power  of amendment  or repeal conferred on the delegate. As   I  have pointed  out earlier in this judgment, such a power has  not even  been exercised by the British Parliament and  the  Do- noughmore Committee recommended that its exercise as far  as possible should be abandoned.  The decision in this case, in my  opinion, is not an apposite authority for arriving at  a correct  conclusion on the questions involved in the  refer- ence. The  next case to which our attention was drawn is  Ref.  re Regulations  (Chemicals)(1). This case arose  in  connection

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with  the regulations respecting chemicals made pursuant  to powers  conferred by the Department of Munitions and  Supply Act  and by the War Measures Act. The question  was  whether these regulations were ultra vires the constitution. It  was held  that  except in one part the  regulations  were  intra rites,  and it was observed that the War Measures  Act  does not  attempt  to transform the executive government  into  a legislature  in the sense in which the Parliament of  Canada and the legislatures of provinces are legislatures and  that the  regulations  derive  legal force solely  from  the  War Measures  Act.  Reliance  was  placed  on  Queen          v. Burah(2)  and  Hodge v. The Queen(3).  One  of  the  learned Judges  observed  that  the maxim  delegatus     non  potest delegare is a rule of the law of agency and has no  applica- tion to Acts of a legislature, that the power of  delegation being  absolutely essential  in the circumstances for  which the  War  Measures  Act has been enacted so as  to  prove  a workable  Act,  power  must be deemed to form  part  of  the powers conferred by Parliament in that Act.  Another learned Judge observed that the maxim was not confined to the law of agency alone but that it had no application to  legislation. A  third learned Judge, however, said that the maxim  quoted above  also had application to grants of  legislative  power but  that the Parliament has not (1) [1943] S.C.R. (Canada) 1 (3) 9 App. Cas. 117, (2) 5 I.A. 178. 914 effaced  itself, in the ultimate analysis it had full  power to amend or repeal the War Measures Act.  In my opinion, for the  reasons already stated, the observations in  this  case also go beyond the rule laid down by their Lordships of  the Privy  Council  in  Queen  v.  Burah(1)  and  Hodge  v.  The Queen(s),  and are not a true guide to the solution  of  the problem.     Our  attention  was also drawn to  Attorney-General  of Nova Scotia v. Attorney-General of Canada(3). This case does not  lend full support to the view taken in the cases  cited above. Therein it was laid down that neither the  Parliament of  Canada nor the legislature of any province can  delegate one  to the other any of the legislative  authority  respec- tively conferred upon them by the British North America Act, especially  by sections 91 and 92 thereof.  The  legislative authority  conferred upon Parliament and upon  a  provincial legislature  is  exclusive and in consequence,  neither  can bestow  upon or accept power from the other,’ although  each may  delegate  to subordinate agencies. On the  question  of delegation  of legislative power, the learned Chief  Justice remarked that "delegations such as were dealt with in In  re George   Edwin   Gray(4)   and  in   Ref.   re   Regulations (Chemicals)(5)  under the War Measures Act were  delegations to a body subordinate to Parliament and were of a  character different from the delegation meant by the bill now  submit- ted to the courts." In this case on the general question  of delegation the Supreme Court did not proceed beyond the rule enunciated  in In re The Initiative and Referendum Act  (6), or what was stated in Hodge v. The Queen(7).      Lastly reference may also be made to the case of Oimuit v. Bazi (8).  The learned  Attorney-General placed  reliance on certain obiter dicta of Davies J. to the effect that  the Parliament  of Canada could delegate its  legislative  power and such delegation was within its power. The learned  Chief Justice did not express   (1) 5 I.A. 178.            (5) (1943) 1 D.L.R. 248.   (2) 9 App. Cas. 117.       (6) [1919] A.C. 935.

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 (3) (1950)4 D.L.R 369.’    (7) 9 App. Cas. 117.   57 S.C.R. 150-             (8) 46 S.C.R.L. (Canada)502. 915 any opinion on the point, while Idington J. was not prepared to subscribe to this view.  The other Judges did not consid- er  the  point  at all. In my opinion,  these  remarks,  the soundness  of which was doubted by other Judges, are not  of much  assistance to us in this case.    Having examined  the Canadian  cases on this subject it seems pertinent  at  this stage  to refer to a passage from Street on the Doctrine  of Ultra  Vires,  which states the true  position  of  colonial legislatures  and appositely brings out the meaning  of  the language  used  by the Privy Council in the cases  that  the legislatures  are not the agents of the Imperial  Parliament :--     "However  true it may be that colonial legislatures  are not mere agents of the Imperial Government, it is also  true that they are not unfettered principals. Within the terms of their constitution they are limited at least as to  subjects and  area, and, to the extent suggested, perhaps also as  to power of delegation. If an ultra vires colonial’ statute may be ratified by the Imperial Parliament, there is an implica- tion  of agency. To do anything outside the scope  of  their constitution  as when the Dominion of Canada established the Province  of Manitoba(1), an imperial statute  is  required. It  would appear that a legislature cannot, as  an  ordinary principal,  ratify  acts purporting to  be  done  under  its authority (2).  Taking a broad  view, non-sovereign legisla- tures  are, and so long as they do not repudiate their  con- stitutions  must  remain, delegates of the Imperial  Parlia- ment.  They have been so regarded by the  Privy  Council(3). But  just  as  in the case of the prerogative  it  would  be impolitic  to apply a formula too strictly, so also the  law of  agency must be accommodated to meet the solid fact  that the  colonies,  or the most important of  them,  enjoy  real independence."     The decisions of American courts  on  the constitutionality of delegation of legislative power are, as in (1) 34 Vict. c. 28. (2)  Commonwealth v. Colonial Ammunition Co. 34 C.L.R.  198, 221.    (3) [1906] A.C. 542; [1914] A.C. 237, 254. 118 916 the  case of other countries, by no means uniform.  Judicial opinion has sometimes taken a strict view against the valid- ity of such delegation and on other occasions it has  liber- ally  upheld it as constitutional on grounds which again  by no  means are based on logical deductions from any  juristic principle, but generally on grounds of convenience or  under the  doctrine of "determining conditions" and  sometimes  on historical considerations. The Supreme Court of America has, however,  never departed from the doctrine that  legislative power cannot be delegated to other branches of government or to  independent bodies or even back to the people. The  rule against delegation of legislative power is not based  merely on  the doctrine of separation of powers between  the  three state  departments,  legislative,  executive  and  judicial, evolved by the constitution. This doctrine puts a  restraint on delegation to other branches of government.   Prohibition against  delegation  to independent bodies  and  commissions rests  on Coke’s maxim, delegatus non potest delegare.   The maxim,  though usually held applicable to the law of  agency embodies  a sound juristic principle applicable to the  case of  persons entrusted with the performance of public  duties and the discharge of high trusts.  The restraint on  delega-

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tion  back  to  the people is tied up with  some  notion  of representative democracy.     Reference  was  made to a number of  decisions  of,  the Supreme  Court  during  the arguments  and  quotations  from several  books on constitutional law were cited. It  is  not useful  to  refer to all of them in my opinion,  but  a  few important ones may be mentioned.     The  first American case that needs mention is Waman  v. Southard (1), a decision of Marshall C.J. given in the  year 1825.  The question concerned the validity of certain  rules framed  by  the courts. The learned Chief  Justice  observed that it could not be contended that Congress could  delegate to courts or to any other tribunal powers which are strictly or exclusively legislative. (1) 6 Law. Edn. 262. 917     In Killbourn v. Thompson (1), it was held that  judicial power could not be exercised by the legislative  department. Field v. Clark C) is one of the leading cases in America  on this subject.  In this case power  had been delegated to the executive to impose certain duties.  Delegation of power was upheld on  the ground that the policy of the law having been determined  by the legislature, working out of  the  details could  be left to the President who could not be said to  be exercising  any legislative will but was  merely  authorised to execute the law as an agent of the legislature in execut- ing  its  policy. It was asserted that it  was  a  principle universally  recognised as vital to the maintenance  of  the system  of  government  that Congress  could  not   delegate legislative power to the President.     In Springer v. Phillipine Islands C), the same view  was expressed.  On  similar  lines is the decision  in  U.S.  v. Gravenport etc. Co. (4). It was observed that after fixing a primary standard, power to fill up details could be devolved by appropriate legislation. The provision attacked there was held  as  not  delegation of legislative  power  but  merely giving  power  to  make  administrative  rules.   O’Donouhue v.U.S. (5) concerned the question of  compensation   payable to Judges of the Supreme Court and it was held that it could not be lawfully diminished.  It was remarked that the object of  the creation of the three departments of government  was not  a  mere matter of convenience but was  basic  to  avoid commingling of duties so that acts of each may not be called to have been done under the coercive influence of the  other departments.     The  decision  in  Hampton & Co. v.U.S.(6)  is  the  oft quoted  judgment of Taft C.J.  The following  extracts  from that judgment may be quoted with advantage :--     "It  is  a  breach of the national  fundamental  law  if Congress gives up its legislative power and transfers it  to the President, or to the judicial branch, or, if by  103 U.S. 168.                (4) 287 U.S. 77.  (2) 143 U.S. 649.            (5) 289 U.S. 516.  (3) 277 U.S. 186.            (8) 276 U.S. 394. 918 law it attempts to invest itself or its members with  either executive power or judicial power.  This is not to say  that the three branches are not co-ordinate  parts of one govern- ment  and that each in the field of  duties may  not  invoke the  action  of  the other two  branches in so  far  as  the action  invoked shall not be an assumption of the  constitu- tional  field of action of another branch.   In  determining what  it may do in seeking assistance from  another  branch, the  extent and character of that assistance must  be  fixed according  to  commonsense and the inherent  necessities  of

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governmental co-ordination.  The field of Congress involves all  and many varieties of legislative action  and  Congress has  found  it frequently necessary to use officers  of  the executive branch, within defined limits, to secure the exact effect  intended  by  its acts of  legislation,  by  vesting direction in such officers to make public regulations inter- preting  a statute and directing the details of  its  execu- tion,  even  to  the extent of providing  for  penalizing  a breach  of  such  regulations.........   Congress  may  feel itself  unable  conveniently to determine exactly  when  its exercise  of the legislative power should become  effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an  executive, or, as often happens in matters of State legislation, it may be left to a popular vote of the residents of a district  to be affected by legislation."      Panama  Refining  Co.  v.U.S. (1)  is  another  leading decision  of the Supreme Court on this subject.  In  Benoari Lal  Sarma’s  ease (2) considerable reliance was  placed  by Varadachariar  J. on this decision for arriving at his  con- clusion  against  non-delegation  of power  in  India.   The following observations from the judgment of Hughes C.J.  may appositely be cited :--      The Congress is not permitted to abdicate, or to trans- fer  to  others, the essential  legislative  functions  with which it is vested.  Undoubtedly, legislation must often  be adapted to complex conditions involving (1) 293 U.S. a88.         (2) [1943] F.C.R. 96. 919 a host of details with which the national legislature cannot deal  directly. The Constitution has never been regarded  as denying to the Congress the necessary resources of flexibil- ity  and practicality, which will enable it to  perform  its function in laying down policies and establishing standards, while  leaving to selected instrumentalities the  making  of subordinate rules within prescribed limits and the  determi- nation  of  facts  to which the policy as  declared  by  the legislature is to apply." Cardozo J. observed as follows :"An attempted delegation not confined to any single act nor to any class or group of acts identified  or  described by reference to  standards  is  in effect a roving commission."     In  Opp Cotton Mills v. Administrator (1), it  was  said that essential legislative power could not be delegated  but fact  finding agencies could be created. Yakus v.U.S. C)  is to the same effect.  In Lichter v. U.S. (3) it was held that a   constitutional  power implies a power of  delegation  of authority  under it sufficient to effect its purpose.   This power   is  especially significant in  connection  with  war powers under which the exercise of discretion as to  methods to  be employed may be essential to an effective use of  its war  powers by Congress.  The degree to which Congress  must specify its policies and standards in order that the  admin- istrative  authority granted may not be an  unconstitutional delegation  of its own legislative power is not  capable  of precise specification.     These decisions  seem to indicate  that judicial opinion in  America  is against delegation of  essential  powers  of legislation by the Congress to administrative bodies or even to  independent commissions.  It is unnecessary to refer  to all  the passages that were quoted from the different  text- books which apart from the opinions of the text-book writers merely sum up  (1) 312 U.S. 126.         (3) 334 U.S. 742.  (2) 321 U.S. 414.

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920 the  result of the decisions given by the various courts  on this  point.   This  result has been, in  my  opinion,  very accurately summarized by Crawford in his book   on Construc- tion of Statutes at pages 215, 26 in the following words and represents  the present state of constitutional law in  that country on this subject :-      "Legislative  power  has been delegated, as  a  general rule,  not so often as an effort to break down the  triparte theory  of the separation of powers, but from necessity  and for  the  sake of convenience. More and more with  a  social system steadily becoming increasingly complex, the  legisla- ture  has  been obliged in order to  legislate  effectively, efficiently  and  expeditiously,  to delegate  some  of  its functions:  not  purely legislative in character,  to  other agencies,  particularly  to  administrative  officials   and boards. Most prominent among the powers thus delegated  have been the power to ascertain facts, and the power to  promul- gate  rules  and regulations. Many of  the  other  delegated powers, upon analysis, fall within one of these two major or basic classifications.      "So far, however, as the delegation of any power to  an executive official or administrative board is concerned, the legislature  must declare the policy of the law and fix  the legal  principles which are to control in given   cases  and must  provide a standard to guide the official or the  board empowered to execute the law.  This standard must not be too indefinite or general.  It may be laid down in broad general terms. It is sufficient if the legislature will lay down  an intelligible principle to guide the executive or administra- tive  official......  From these typical criterions,  it  is apparent  that the courts exercise considerable   liberality towards  upholding legislative delegations, if a standard is established. Such delegations are not subject to the  objec- tion  that legislative power has been unlawfully  delegated. The  filling in of mere matters of detail within the  policy of,  and  according to, the legal principles  and  standards established  by the legislature is  essentially  ministerial rather than legislative in character, even if considerable 921 discretion  is  conferred upon the delegated  authority.  In fact, the method and manner of enforcing a law must be  left to  the  reasonable discretion of  administrative  officers, under legislative standards."     On  one point, however, there is uniformity of  judicial decisions in the American courts and even amongst the  text- book  writers.   Delegation  of general power  to  make  and repeal  laws  has uniformly been held  as  unconstitutional: [vide observations of Dixon J. in Victoria etc. Co. & Meakes v.  Dignam(1)].  It was there pointed out that  no  instance could be cited of a decision of the Supreme Court of America in which Congress had allowed or empowered the executive  to make regulations or ordinances which may overreach  existing statutes.     In  Moses  v. Guaranteed Mortgage Co. of New  York(2)  a section of the Emergency Banking Law of 1933 was held uncon- stitutional delegation of power.   There a banking board was given  power  to adapt, rescind, alter or  amend  rules  and regulations  inconsistent with and in contravention  of  any law. In his second edition on Administrative Law, at p. 110, Walter Gellhorn states as follows :--     "Delegations  of power to alter or modify statutes  are, in effect, nothing more than delegations of the  dispensing, suspending or rule-making powers, or a combination  thereof. Yet  the  mere use of the terms ’alter’ or ’modify’  in  the

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statute,  has brought unexpected repercussions  from  courts and commentators."     In  a  number of decisions mentioned in  this  book  the courts have held that delegation of power to alter or modify a  statute  is  unconstitutional  delegation  of  power.  As observed by Prof. Salmond (Jurisprudence 10th Edn. p.  159), a  legislative Act passed by the supreme legislature  cannot be  amended by any other body than the  supreme  legislature itself.  In  Rowland Burrow’s Words and  Phrases,  the  word "modify"  has been defined as meaning "vary, extend  or  en- large, limit or restrict."  In Oxford Dictionary, one of the (1) 46 C.L.R. 73.          (2) 239 App. Div. 703, 922 meanings  of this word is "the making of partial changes  or altering without radical transformation." The same  diction- ary gives the following meaning to  the word "modification": ’ ’the result of such alteration, a modified form or  varie- ty."  In Stevens v. General Steam Navigation Co. Ltd.(1)  it was  stated that modification implies an alteration. It  may narrow  or  enlarge the provisions of a former Act.   In  my opinion,  the view taken in American decisions that  delega- tion of authority to modify an Act of the Congress is uncon- stitutional is fully borne out by the meaning of the expres- sion  "modify",  though  this view is not  liked  by  Walter Gellhorn.   Before  concluding, it is apposite  to  quote  a passage from Baker’s Fundamental Law which states the  prin- ciple  on which the American decisions are based  and  which coincides with my own opinion in respect of those decisions. The passage runs thus:      "The  division  of our American government  into  three co-ordinate  branches  necessarily prevents  either  of  the three departments from delegating its authority to the other two  or to either of them, but there are other  reasons  why the  legislative power cannot be delegated.   Representative government’  vests  in the persons chosen  to  exercise  the power of voting taxes and enacting laws, the most  important and sacred trust known to civil government. The  representa- tives of the people are required to exercise wise discretion and  sound judgment, having due regard for the purposes  and needs of the executive and judicial departments, the ability of the tax-payers to respond and the general public welfare. It follows as a self-evident proposition that a  representa- tive  legislative assembly must exercise its  own  judgment; that in giving its consent to a tax levied it must distinct- ly   and  affirmatively determine the amount of the  tax  by fixing a definite and certain rate or by fixing an aggregate amount on the tax-payers and that in enacting a law it  must so far express itself that the Act when it leaves the legis- lative  department  is a complete law.  It  is  therefore  a maxim of constitutional law that a legislative body (1) [1903] 1 K.B 890. 923 cannot delegate its power.  If it was competent for a repre- sentative legislative body to delegate its power it would be open to make the delegation to the executive which would  be destructive  of  representative government and a  return  to despotism. Not only the nature of the legislative power  but the very existence of representative government depends upon the doctrine that this   power cannot be transferred." The Australian Constitution follows the American model (63 & 64, Vic., c. 12, passed in July 1900). The legislative power of  the Commonwealth is vested in a Federal Parliament.  The executive  power is vested in the Queen, while the  judicial power is vested exclusively in the courts. The extent of the legislative   power is stated in sections 51 and 52  of  the

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Constitution Act. The residuary powers vest in the States. The  first  Australian  case cited to us  is  Baxter  v.  Ah Way(1). This was decided in the year 1909. It was held  that section  52,  sub-section (g), of the Customs Act  of  1901, which provides that all goods the importation of which shall be  prohibited by proclamation shall be prohibited  imports, is  not  a delegation of legislative power  but  conditional legislation and is within the power conferred on  Parliament by section 51 of the Constitution. It was further held  that prohibition  of  importation  is a legislative  act  of  the Parliament  itself, the effect of sub-section (g)  being  to confer  upon the Governor-General in Council the  discretion to  declare  to  what class of goods  the  prohibition  will apply.  In  the  course of his judgment  the  learned  Chief Justice observed as follows :--     "The  foundation of the argument that this power  cannot be  delegated by the legislature is to be found in the  case of.........  It is of course obvious that every  legislature does  in one sense delegate some of  its  functions......... Nor  is it to the purpose to say that the legislature  could have  done  the thing itself. Of course, it could.   In  one sense this is delegation of authority because it  authorizes another body to do (1) 8 C.L.R. 626. 119 924 something  which it might have done itself.  It is too  late in  the  day to contend  that such a delegation,if it  is  a delegation is objectionable m any sense......  The objection cannot be supported on the maxim delegatus non potest  dele- gate or on any other ground.........  There being no  objec- tion to conditional legislation being passed, this is a case of that sort." O’Connor J. said as follows :--      "Power  is given in section 51 in respect of trade  and commerce with other countries on taxation and there is  also power  to make laws incidental to the exercise of any  power vested in Parliament.  It is a fundamental principle of  the constitution that everything necessary to the exercise of  a power  is  included  in the grant of  a  power.   Everything necessary to the effective exercise of the power of legisla- tion must be taken to be conferred by the constitution  with that  power.........  Exercise of such discretion cannot  be said to be making of the law." Higgins J. said :- "According  to my view, there is not here in  fact       any delegation of the law-making power."      This case rests on the principle that legislative power cannot be delegated and it was for that reason that the impugned statute was  justi- fied  on the ground of conditional legislation.  If  delega- tion  of  legislative power was permissible, it  was  wholly unnecessary to justify the enactment as a form of condition- al legislation.      Roche  v. Kronheimer(1), decided in the year 1921,  was argued by Dixon (as he then was). The question in that  case concerned  the  validity of the Treaty of Peace  Act,  1919, which  by  section 2 authorized the  making  of  regulations conferring the delegation of powers on certain persons.  The legislation was held constitutional.  In the argument by Mr. Dixon,  its validity was attacked on the following  grounds: "It is not conditional legislation as in the case of. Baxter v. Ah Way(2), but it bestows on the executive full     29 C.L.R. 329.          (2) 8 C.L.R. 676. 925 legislative  power  upon a particular  subject.  Vesting  of

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legislative  power  to any other hands  than  Parliament  is prohibited.  The making of a law that another body may  make laws  upon a particular subject matter is not      making  a law on that subject." The decision was given in these  terms :--     It  was said that if Parliament had authority to  legis- late, it had no power to confer that authority on the Gover- nor-General. On this topic we were referred to Hodge v.  The Queen  (1) and Rex v. Halliday(2) and In re  The  Initiative and  Referendum  Act(3), and much interesting  argument  was devoted to the real meaning and effect of the first of those cases.  It is enough to say that the validity of legislation in  this form has been upheld in Farey v. Burvett(4);  Pank- hurst  v. Kierman(5); Ferrando v. Pearce(6); and  Sickerdick v. Ashton(D, and we do not propose to enter into any inquiry as to the correctness of those decisions."     This case therefore was decided on the ground of  cursus curiae,  and  the point raised by Mr. Dixon  remained  unan- swered.     In  the  year  1931 two cases came  before  the  Supreme Court,  one of which was decided in February, 1931, and  the other in November, 1931.  The first of these is the case  of Huddart  Parker Ltd. v. The Commonwealth(3), in which  Dixon J.  was  one of the presiding Judges. The question  in  that ease  concerned the validity of section 33 of the  Transport Workers  Act   which empowered   the   Governor-General   to make  regulations  in  respect of  transport  workers.   The learned  Judge  observed  that Roche  v.  Kronheimer(9)  had decided that a statute conferring on the executive power  to legislate  upon  some matters, is law with respect  to  that subject.   On this construction of the decision in Roche  v. Kronheimer(9) the case was decided.  (1) 9 App. Cas. 117.         (6) 25 C.L.R. 241.  12} [1917] A.C. 260.         (7) 25 C.L.R. 506.  (3) iI919] A.C. 935.         t8) 44 C.L,R. 492.  (4) 21 C.L,R. 433.           (9) 29 C.LR. 329.  (5) 24 C.L.R. 120. 926 So  far  as  I  have been able to  see,  Roche  v.  Kronhei- mer(1) decided nothing and it was based on the rule of stare decisis.     Victorian etc. Co. & Meakes v. Dignan(2) was decided  in November,  1931.   The  question in that  case  was  whether section  3 of the Transport Workers Act was intra rites  the constitution inasmuch as it delegated power of making  regu- lations  notwithstanding  anything else contained  in  other Acts. The delegation was under the name and style of confer- ring  "regulative power." The appellants in that  case  were informed  that  they were guilty of an offence  against  the Waterside Employment rights, picking up for work as a water- side worker at Melbournea person not a member of the  Water- side  Workers’ Federation, while transport workers who  were members of the Federation were available for being picked up for the work at the said port. The attack on the Act  itself was  based on the American constitutional  doctrine that  no legislative  body  can  delegate to  another  department  of government  or  to  any other authority  the  power,  either generally  or specially, to enact laws.  The reason, it  was said,  was  to  be found in the very existence  of  its  own powers’. This high prerogative having been entrusted to  its own  wisdom,  judgment and patriotism and not  to  those  of other  persons, it will act ultra rites if it undertakes  to delegate the trust instead of executing it. It was, however, said  that this principle did not preclude conferring  local powers of government upon local authorities. The defence was

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that the Act did not impinge upon the doctrine because in it the  Parliament  confined the regulating  power  on  certain specific matters within the ambit of the trade and  commerce power  and accordingly merely exercised its own  legislative power  within that ambit, and did not delegate any  part  of it.  Reference  was made to the decision of  Higgins  J.  in Baxter  v.  Ah  Way(3), in which it was  observed  that  the Federal Parliament had within its ambit full power to  frame its own laws in any fashion using any agent, any agency, any machinery that in its wisdom it thinks (1) 29  C.L.R.  329. (2) 46 C.L.R. 73.    (3) 8 C.L.R, 640. 927 fit for the peace, order and good government of the  Common- wealth.  Rich 3. held that the authority of subordinate  law making may be invested in the executive.  Reference was made to  Roche  v. Kronheimer(1)  The  learned   Attorney-General placed  considerable  reliance on the judgment of  Dixon  J. The  learned  Judge expressed his opinion  on  the  American decisions in these words :--     "But in what does the distinction lie between the law of Congress  requiring  compliance  with  direction  upon  some specified subject which the administration thinks proper  to give  and a law investing the administration with  authority to  legislate upon the same subject?  The answer  which  the decisions  of the Supreme Court supply to this  question  is formulated  in the opinion of that Court delivered  by  Taft C.J.  in  Hampton  & Co: v.U.S.(2)..  ....   The  courts  in America  had never had any criterion as to the  validity  of statutes  except that of reasonableness,--the common  refuge of  thought  and expression in the face  of  undeveloped  or unascertainable standards."     The  learned Judge then reached the conclusion  that  no judicial power could be given or delegated, but from that it did not follow that Parliament was restrained from transfer- ring  any power essentially legislative to another organ  or body.   In  an earlier decision the learned  Judge  had  ex- pressed  the opinion that time had passed for  assigning  to the constitutional distribution of powers among.the separate organs of government, an operation which confined the legis- lative  power  to the Parliament so as to restrain  it  from reposing in the executive an authority essentially  legisla- tive  in character and he remarked that he was not  prepared to change that opinion or his expression to the effect  that Roche v. Kronheirner(1) did decide that a statute conferring upon  the  executive a power to legislate  on  some  matters contained  within  one  of  the  subjects of the legislative power  of Parliament is a law with respect to  that  subject and the distribution of powers (1) 29 C.L.R. 329        (2) 276 U.S. 394, 406. 928 does  not restrain Parliament to make the law.  The  learned Judge then proceeded to say:-        "This does not mean that a law confiding authority  " to  the executive will be valid, however extensive or  vague the  subject-matter may be, if it does not fall outside  the boundaries of federal power......  Nor does it mean that the distribution  of  powers  can supply  no  considerations  of weight affecting the validity......  It may be  acknowledged that  the manner in which the constitution accomplished  the separation of power does logically or theoretically make the Parliament the exclusive repository of the legislative power of the Commonwealth. The existence in Parliament of power to authorize  subordinate  legislation  may be  ascribed  to  a conception of that legislative power which depends less upon

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juristic  analysis  and perhaps more upon  the  history  and usages  of British legislation and the theories  of  English law.  Such subordinate legislation remains under  Parliamen- tary control and is lacking in the independent and  unquali- fied  authority  which is an attribute to  true  legislative power."     It  seems  to  me  that in  its  ultimate  analysis  the judgment  of the learned Judge proceeded, as pointed out  by him, upon the history and the usages of British  legislation and   theories  of  English  law  and  not  on  the   strict construction of the Australian Constitution with respect  to which  the learned Judge frankly conceded that logically  or theoretically  the power of delegation of the  quality  held valid  in that case could not be justified on the  framework of the constitution. I have also not been able precisely  to follow  the  distinction  drawn by the  learned  Judge  that delegation held justified by him did not include  delegation in  the  fullest  extent of any matter  falling  within  the boundaries of federal power.  After a careful  consideration of the observations of this very learned and eminent Judge I venture  to think that these are not a safe guide for  deci- sion of the present reference.  Not only were the  constitu- tional limitations of the written constitution over-reached, but the decision was based on the theories of British legis- lation and English law which could 929 hardly be applied to a written constitution with a  complete separation of power.     Mr. Justice Evatt in this  case stated the  rule differ- ently. He observed "every grant by the Parliament of author- ity  to  make regulations is itself a grant  of  legislative power  and the true nature and quality of legislative  power of  the Commonwealth Parliament involves as  part   of   its contents  power to  confer law-making  powers  upon  author- ities other  than  the Parliament  itself."  The theory that legislative  power has a content of delegation in it, to  my mind, is not based on any principles of jurisprudence or  of legislation  and I venture to think that it is  inconsistent with  the  fundamental principle that when a high  trust  is confided to the wisdom of a particular body which has to  be discharged according to the procedure prescribed, such trust must be discharged by that person in whom it is confided and by no other. This decision is moreover inconsistent with the decisions of the Privy Council above mentioned. If the  mere existence of power of legislation in a legislature automati- cally  authorized it to delegate that power, then there  was hardly any necessity for their Lordships of the Privy  Coun- cil to justify delegation in the cases referred to above  on the ground of conditional legislation and to state  affirma- tively  that the cases considered by them were not cases  of delegation of legislative authority. This view is  certainly in  conflict with the observations of the Privy  Council  in Benoari Lal Sarma’s case (1), given under the Government  of India  Act, 1935, wherein their Lordships said: "It is  true that the Governor-General acting under section 72 of  Sched- ule IX himself must discharge the duty of legislation  there cast on him and cannot transfer it to any other  authority." Evatt J. after enunciating the rule discussed above remarked :-     "It  is true that the extent of the power  granted  will often  be a material circumstance in the examination of  the validity of the legislation conferring the grant.......  The nature of the legislative power of the (1) [1945] F.C.R. 161......... 930

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Commonwealth  authority is plenary, but it must be  possible to  predicate of every law passed by the Parliament that  it is  a  law with respect to one or other    of  the  specific subject-matters  mentioned  in  sections 51 and  52  of  the constitution."     After referring to a number of circumstances  considered by  the learned Judge material in reaching at a   result  as to the constitutionality of a statute, he observed as follows:-"As a final analysis the Parliament  of the Commonwealth is not competent to abdicate its powers  of legislation.   This  is not because Parliament is  bound  to perform  all or any of its legislative functions  though  it may elect not to do so, or because of the doctrine of  sepa- ration of powers, but because each and every one of the laws passed  by Parliament must answer the description of  a  law upon  one or more of the subject-matters stated in the  con- stitution.   A  law by which Parliament gave  all  its  law- making authority to another body will be bad because it will fail to pass the test last mentioned."     Frankly  speaking, I have not been able to apprehend  on what  principles, if any, of construction, the relevancy  of the  matters  considered by the learned  Judge  as  material circumstances  in judging the validity of an Act so  far  as the  question of the vires of the Act is concerned could  be justified.     Another  Australian case cited is Wishart v.  Fraser(1). There  the attack was on section 5 of the National  Security Act, 1939-40, which empowered the making of regulations  for securing public safety and defence of the Commonwealth  etc. It  proceeds on the same line as the earlier case  discussed above.     In  my opinion, the decision in Baxter v. Ah  Way(2)  is based  on  a correct construction of the provisions  of  the Australian  Constitution and the later decisions  cannot  be considered  as any guide. in this country for a decision  of the point involved m the reference. The argument pressed  by Mr. Dixon, as he then was, in (1) 64 C.L.R. 470-        (2) 8 C.L.R. 626. 931 Roche v. Kronheirner(1) in my opinion, states the  principle correctly.     The  decisions of their Lordships of the  Privy  Council from  India  are  not many. The first and  the  earliest  of these  is in Queen v. Burah(2), which has already been  dis- cussed  at considerable length in the earlier part  of  this judgment and as stated already, it is no authority  for  the proposition  that the Indian Legislature  constituted  under the Indian Councils Act, 1861, had power to delegate author- ity to the executive authorising them to modify or amend the provisions of an Act passed by the legislature itself.     King Emperor v. Benoari Lal Sarma(3) is the last  Indian decision of the Privy Council on this subject. Conviction of fifteen individuals made by a special magistrate  purporting to act under Ordinance II of 1942, promulgated by the Gover- nor-General  on  the 2nd January, 1942, was set aside  by  a special  Bench of the High Court at Calcutta and this  deci- sion  was affirmed by the majority of the Federal  Court  of India.  The ground on which the conviction was set aside was that the Ordinance was ultra vires.  In appeal before  their Lordships  of  the Privy Council it was contended  that  the Ordinance  was valid.  The Ordinance did not itself  set  up any of the special courts but provided by sub-section (3) of section 1 that the Ordinance--     "shall  come  into  force in any Province  only  if  the Provincial  Government, being satisfied of the existence  of

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an  emergency arising from any disorder within the  Province or from a hostile attack on India or on a country neighbour- ing  on  India or from the imminence of such an  attack,  by notification  in the official gazette, declare it to  be  in force  in the Province and shall cease to be in  force  when such notification is rescinded."     In view of this last provision it was contended that the Ordinance  was  invalid either because the  language  showed that  the Governor-General notwithstanding the preamble  did not consider that an emergency existed but was making provi- sion in case one should arise in   29 C.L.R. 329.   (2) 5 I.A. 178,   (3) [1945] F.C.R. 161. 120 932 future,  or  else because the section amounted to  what  was called  "delegated   legislation"  by which   the  Governor- General without legal authority sought to    pass the  deci- sion whether an emergency existed to the Provincial  Govern- ment instead of deciding it for himself.  On this last point their Lordships observed as follows :--      "It  is  undoubtedly  true  that  the  Governor-General acting  under s. 72 of Schedule IX, must  himself  discharge the duty of legislation there cast on him, and cannot trans- fer  it to other authorities. But the Governor  General  has not  delegated his legislative powers at all. His powers  in this  respect,  in cases of emergency, are as  wide  as  the powers  of the Indian legislature which, as already  pointed out, in view of the proclamation under s. 102, had power  to make  laws for a province even in respect of  matters  which would  otherwise be reserved to the Provincial  legislature. Their  Lordships are unable to see that there was any  valid objection,  in point of legality, to the  Governor-General’s ordinance  taking the form that the actual setting up  of  a special  court under the terms of the ordinance should  take place at the time and within the limits judged to be  neces- sary by the provincial government specially concerned.  This is not delegated legislation at all.  It is merely an  exam- ple of the not uncommon legislative arrangement by which the local  application of the provision of a statute  is  deter- mined  by the judgment of a local administrative body as  to its necessity. Their Lordships are in entire agreement  with the  view of the Chief Justice of Bengal and of Khundkar  J. on this part of the case. The latter Judge appositely quotes a passage from the judgment of the Privy Council in the well known decision in Russell v. The Queen(1)."      This  case brings out the extent to  which  conditional legislation can go, but it is no authority justifying  dele- gation of legislative power authorising an external authori- ty to modify the provisions of a legislative enactment.   It may  be  pointed out that the opening part  of  the  passage quoted above seems to approve the view (1) 7 App. Cas. 829. 933 of  the Federal Court expressed by Varadachariar J. in  that case  when his Lordship relying on a passage from Street  on the Doctrine of Ultra Vires observed that a legislature will not  ordinarily be permitted to  shift the onus of  legisla- tion though it may legislate as to main principles and leave the details to subordinate agencies.      The decision of the Federal Court in Jatindra Nath Gupta v.  The  Province of Bihar and Others(1) to which  I  was  a party  and  wherein I was in respectful agreement  with  the judgment of the learned Chief Justice and my brother Mukher- jea, in my opinion, correctly states the rule on the subject of delegation of legislative power.  The Bihar   Maintenance

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of Public  Order Act, 1947, in sub-section (3) of section  1 provided as follows :--     "It shall remain in force for a period of one year  from the date of its commencement.     Provided that the Provincial Government may, by  notifi- cation,  on  a resolution  passed by the  Bihar  Legislative Assembly  and  agreed to by the Bihar  Legislative  Council, direct  that  this Act shall remain in force for  a  further period  of one year with such modifications, if any, as  may be specified in the notification."     Acting  under the proviso the Provincial  Government  on the  11th March, 1948, extended by notification the life  of the  Act by one year.  The validity of the proviso  to  sub- section  (3)  of section 1 of the Act was  attacked  on  the ground  that it amounted to delegation of legislative  power by the Provincial Legislature and this it was not  competent to do. On the authority of the decision of the Privy Council in  Benoari  Lal Sarma’s case (2) I held the  proviso  void. The question was posed by me in the following way :--     "It may be asked what does the proviso purport to do  in terms and in substance ? The answer is that it empowers  the Provincial  Government to issue a notification  saying  that the Provincial Act shall remain (1) [1949] F.C.R. 595.     (2) [1945] F.C.R. 161. 934 in force for a further period of one year with such  modifi- cations, if any, as may be specified in the notification. As stated  in  the earlier part of this  judgment,  unless  the power of the Provincial Government is co-extensive with  the power of the Provincial Legislature, it is difficult to  see how it can have the power to modify a statute passed by that legislature,  Modification of statute amounts to re-enacting it  partially.  It involves the power to  say  that  certain parts  of it are no longer parts of the statute and  that  a statute with X sections is now enacted with Y sections.   In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of  the statute  are  to remain law in future or not or have  to  be deleted  from  it.  The power to modify may even  involve  a power to repeal parts of it.  A modified statute is not  the same original statute.  It is a new Act and logically speak- ing, it amounts to enacting a new law. The dictionary  mean- ing of the word ’modify’ is to make something existing  much less severe or to tone it down or to make partial changes in it.   What  modifications  are to be made in  a  statute  or whether any are necessary is an exercise of law-making power and  cannot amount merely to an act of execution of a  power already conferred by the statute.  The extent of changes  is left to external authority, i.e., the Provincial Government. Nothing is here being done in pursuance of any law.  What is being  delegated  is the power to determine  whether  a  law shall be in force after its normal life has ended and if so, what  that law will be, whether what was originally  enacted or something different. The body appointed as a delegate for declaring  whether a penal Act of this character shall  have longer life than originally contemplated by the  legislature and if so, with what modification, is a new kind of legisla- ture than that entrusted with the duty under the  Government of India Act, 1935."     I still maintain the view that the question of the  life of  an  Act is a matter for the judgment  of  the  competent legislature.  It  is  a matter  of policy whether a  certain enactment is to be on the statute 935 book  permanently or temporarily. Such a question  does  not

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fall  within  conditional  legislation as  it  concerns  the extension of the life of a temporary Act. Such an Act dies a natural  death  when the period fixed for its  duration  ex- pires.  It automatically  ceases  to operate and there is no real  analogy between conditional legislation which  author- izes  a  known authority to determine  the  commencement  or termination  of  an Act and an act done in exercise  of  any power  conferred  by  the Act itself.  It was  said  by  the learned  Attorney-General  that this  decision  had  created considerable  difficulties and that the various High  Courts in India on its authority had held certain enactments  void, the validity of which had never been questioned before  this decision was given.  In my humble judgment, there is nothing whatever in that decision which m any way unsettled the  law as  settled by their Lordships of the Privy Council  in  Bu- rah’s  case(1).  This  decision did not lay  down  that  the Indian  legislature  did  not possess  power  of  delegation necessary  for  effectively  carrying  out  its  legislative functions. All that it held  was and I think   rightly--that essential legislative function could not be delegated to  an external authority and that the legislature could not  shirk its own duty and lay the burden of discharging that duty  on others.  If  I was convinced that the decision laid  down  a wrong  rule  of law, I would have required  no  sugar-coated phrases  to own the error. Our attention is not drawn  to  a single  decision  of their Lordships of  the  Privy  Council during  the  whole  administration of this  country  by  the British  in which the highest court in the land  upheld  the contention  urged  by the learned Attorney-General.  On  the other  hand, learned Judges in this country of the  eminence of Markby J. and Varadachariar J. in very clear and unambig- uous  terms affirmed the rule that delegation  of  essential legislative  power  was  not within the  competence  of  the Indian legislatures.     Reference  may also be made to the case of The State  of Bombay v. Narottamdas(2), decided recently and to (1) 5 IA. 178.               (2) [1951] S.C.R. 51. 936 which I was a party. Therein it was explained that  Jatindra Nath Gupta’s case(1) was no authority prohibiting delegation of legislative power in case where the principle and  policy of  the  law had been declared in the enactment  itself  and ancillary  powers had been delegated to the provincial  gov- ernment  for  bringing into operation the provisions  of  an Act.     To sum up, judicial opinion on this subject is still  in a  fluid  state and it is impossible to  reconcile  all  the judgments  cited to us on the basis of any rigid  principles of constitutional law.  In England the Parliament is for the time being following the recommendations  of  the   Donough- more Committee.  In America the doctrine against  delegation of  legislative power still holds the field.  In  Canada  as well  as.in India the rule laid down by their  Lordships  of the Privy Council in Burah’s case(2) has never been departed from in theory. The same view was maintained in the  earlier Australian decisions.  Recently Australian decisions however have  gone  to  the length of holding  that  even  essential legislative power can be delegated so long as the  principal does not completely efface itself.     In  my  opinion,  the true solution of  the  problem  of delegation  of legislative power is to be found in the  oft- quoted passage from the judgment of Ranney J. of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. v. Clinton  County Comrs.(3).  This quotation is in these terms:--     "The true distinction is between the delegation of power

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to make the law, which necessarily involves a discretion  as to what it shall be, and conferring authority or  discretion as to its execution, to be exercised under and in  pursuance of  the  law.  The first cannot be done; to  the  latter  no valid objection can be made."     The decision in Locke’s Appeal(4) is also based on  this rule.  There it was said :--  (1) [1949] F.C.R. 595.        (3) 1 Ohio St, 88.  5 I,A. 178.                   (4) 72 Pa. St. 491, 937     "To assert that a law is less than a law, because it  is made  to  depend  on a future event or act, is  to  rob  the legislature  of the power to act wisely for the public  wel- fare  whenever  a  law  is passed relating  to  a  state  of affairs not yet developed, or to things future and  impossi- ble  to fully know."  The proper distinction the court  said was  this:   "The legislature cannot delegate its  power  to make  a  law, but it can make a law to delegate a  power  to determine  some fact or state of things upon which  the  law makes,  or intends to make, its own action depend. ’To  deny this  would be to stop the wheels of government.  There  are many  things  upon which wise and  useful  legislation  must depend  which cannot be known to the law-making  power,  and must,  therefore, be a subject of inquiry and  determination outside of the halls of legislation."     The Federal Court of India in its opinion, expressed  by Varadachariar J. in Benoari Lal Sarma’s case(1) considered a contention  of  the Advocate-General of India   made  to  it based  on the above quotation of Ranney J. and  observed  as follows:     "We  are  of the opinion that there is  nothing  in  the above  decisions of their Lordships that can be said  to  be inconsistent  with  the principle laid down in  the  passage from  the American authority which the  Advocate-General  of India proposed to adopt as his own argument."     The  majority of the court approved the rule  stated  by Chief Justice Hughes in Panama Refining Co. v. U.S.(2),  and it was stated that the rule therein held had nothing whatev- er  to do with maxim delegatus non potest delegate, but  was only the amplification of what was referred to by the  Judi- cial Committee in Burah’s case(3) as "the nature and princi- ples of legislation."     The question can be posed thus: Why is delegation pecul- iarly  a  content of legislative power and not  of  judicial power  ?   In my judgment, it is a content of  none  of  the three State powers, legislative, judicial or executive.   It is, on the other hand, incidental to the (1) [1943] F.C.R, 96.   (2) 293 U.S. 388.  (3) 5 I.A. 178. 938 exercise  of all power inasmuch as it is necessary to  dele- gate  for  the proper discharge of all  these  three  public duties.   No public functionary can himself perform all  the duties  he  is privileged to perform unaided by  agents  and delegates,  but  from this circumstance it does  not  follow that  he can delegate the exercise of his judgment and  dis- cretion  to others.  One may well ask, why is a  legislature formed with such meticulous care by all constitution  makers ?  Why  do they take pains to lay down the procedure  to  be followed  by an elected legislature in its function of  law- making ? Why do they define its different functions and  lay down  the  methods by which it shall act ? The  only  answer that reasonably can be given to these queries is:   "Because the constitution trusts to the judgment of the body  consti- tuted in the manner indicated in the constitution and to the exercise  of its discretion by following the procedure  pre-

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scribed  therein." On the same principle the judges are  not allowed  to surrender their judgment to others.  It is  they and they alone who are trusted with the decision of a  case. They can, however, delegate ancillary powers to others,  for instance, in a suit for accounts and in a Suit for  dissolu- tion  of partnership, commissioners can be   entrusted  with powers  authorising  them  to give decisions  on  points  of difference between parties as to items in the account. Again it  may  be enquired why cannot other  public  functionaries entrusted  in the matter of appointment of  public  servants delegate  this particular duty to others.  The answer  again is  found  in the same principle.  I put this query  to  the learned  Attorney-General  but I could not elicit  any  very satisfactory  answer.  He contented himself by  saying  that possibly  there  was something in the nature  of  the  power itself which requires the personal attention of the authori- ties  concerned  and that therefore  delegation  was   there impliedly forbidden.  To my mind, the same principle forbids delegation of essential legislative power. It is inherent in the  nature  of the power that has to be  exercised  by  the legislature elected for the purpose subject to the  qualifi- cations already stated,  It would be a breach of 939 the  constitutional  duty to bestow this  power  on  someone else.   In the words of Sir John Salmond, "In  general,  in- deed,  the power of legislation is far too important  to  be committed to any person or body of  persons save the  incor- porate  community itself.  The great bulk of enacted law  is promulgated  by the state in its own person. But  in  excep- tional  cases  it has been found possible and  expedient  to entrust  this power to private hands."  In the words of  Mr. Dixon  (as  he then was), the making of a law  that  another body  may make laws upon a particular subject matter is  not making  a law on that subject.  The quotation cited  in  the earlier  part of this judgment from Baker’s book  appositely states  the rule when it says: "It is an axiom of  constitu- tional  law  that representative legislative  bodies  cannot delegate legislative power because representative government vests in the persons chosen to exercise the power of  voting taxes  and  enacting laws, :the most  important  and  sacred trust  known to civil government."  In the words of  another jurist, "Legislation is the formal utterance by the legisla- tive  organ  of  the society and by no  others.   Its  words constitute the law and not the words of the delegate."     In private law the rule is well settled that an arbitra- tor  cannot lawfully devolve his duty on another  unless  so expressly authorized. The nature of the duty itself is  such that it demands exercise of his own judgment and discretion. It  is  again well settled that fiduciary duties  cannot  be made the subject of delegation, though trustees in order  to discharge certain functions can use machinery or subordinate agencies for effectively carrying on the duties which attach to  their constitution. Delegation is permissible  in  cases where  there is a legal or physical necessity to do  so  be- cause  without trusting some person or persons it  would  be impossible efficiently to discharge the duties. It cannot be denied that municipal and other corporations cannot delegate the by-law making power to the executive officers.  It is so because power is entrusted to them in their corporate capac- ity and has to be exercised in that capacity.  I am not able to apprehend 121 940 why  this  principle which is well settled in.  private  law cannot  appositely be applied to the discharge of duties  by

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public  functionaries and by a legislature. It seems  to  me that  the  nature of the duty is such that  it  is  implicit within  it  that it should be discharged by the  person  en- trusted with it and by no others. In other words, the nature of  the public duty itself demands it and the principles  of legislation require it.     For the reasons given above I cannot accept the proposi- tion  contended for by the learned Attorney-General that  in the  absence of an express or implied provision in the  con- stitution  legislative  authority can be bestowed  on  other persons.   In  my opinion, the correct proposition,  on  the other  hand, is that unless expressly or  impliedly  author- ized, such delegation is not permissible.  The exceptions to this rule fall in two classes which have been stated in  the quotation  from Crawford’s book earlier cited in this  judg- ment.     It  is now convenient to examine the provisions  of  our Constitution  in order to appreciate  the contention of  the learned  Attorney-General that it has been modelled  on  the British system and that the Parliament of India is as omnip- otent as in England and that in the matter of delegation  of legislative  power it is in an analogous situation.   In  my opinion, our Constitution is a judicious combination of  the American  model with the British Parliamentary  system.   In its  main  scheme it follows the Government  of  India  Act, 1935, which provides for a federation of States and provides for an executive responsible to the legislature. As a matter of  fact, the framers of the constitution, though they  have borrowed  ideas from other constitutions, have  not  rigidly adhered  to any particular model. Certain provisions in  our constitution are such for which there is no precedent in the constitution  of  any other country.  It seems to  ,me  that they  were as much alive to the doctrine  of  administrative convenience  as  to the dangers of a  system  which  permits delegation  of unfettered legislative power to   the  execu- tive.  The country had recently emerged from the bonds of  a bureaucratic system which had killed 941 its  very soul and they. apparently did not wish it  to  get engulfed  again m the rigours of that  system.  Bureaucratic rule is a necessary corollary to the existence of unfettered delegation of legislative power. To avoid this, the  consti- tution makers made detailed provision in the Constitution on all matters.  It has to be emphasized that no country in the world  has such an elaborate and comprehensive  constitution as  we  have in this country and it would not be  proper  to construe  such  a constitution with the  help  of  decisions given elsewhere on the construction of constitutions  shaped differently.   It is only after a consideration of  all  the provisions of the Constitution and its whole scheme that  it has to be decided whether delegation of  power--legislative, executive  or  judicial--is implict in the grant of  any  of these  powers  or has been expressly provided  for,  to  the extent it was considered necessary on grounds of administra- tive convenience in peace or war time and therefore  confer- ment  of this power by implication cannot be upheld  on  its true  construction.   It has also to be borne in  mind  that our  Constitution   is  fundamentally   different  from  the British  system  inasmuch as the doctrine  of  supremacy  of Parliament  has  its  limitations  here.   The  courts   are empowered  to  declare  Acts  of Parliament unconstitutional if  they  are  inconsistent  with Part III of the  Constitu- tion or when they  trespass  on  fields demarcated for State legislatures.  Obviously, it is implict in the   demarcation of legislative fields that one legislature cannot by delega-

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tion  of  subjects that are exclusively  within   its  field clothe  the other with legislative capacity to make laws  on that  subject  as it will amount to an infringement  of  the Constitution itself.  It seems clear, therefore, that  dele- gation of legislative power to that extent is prohibited  by the  Constitution. Illustratively, defence is a  Union  sub- ject,  while  law and order is a State subject.  Can  it  be argued with any reason that by delegation Parliament can arm a State legislature with the law-making power on the subject of  defence and that a State legislature can arm  Parliament with 942 power  to make law on the subject of law and order ?  In  my opinion, any argument on those lines has to be negatived  on the  ground  that the delegation of such    power  would  be contrary  to the Constitution itself and that this  kind  of transfer of power is outside its contemplation. For a  simi- lar reason if such transfer of power is not possible in  the case  of  one legislature to the other, it is  difficult  to justify  it if the transfer is made in favour of the  execu- tive except to the extent allowed by the Constitution or  to the  extent  that it had already been recognised  under  the designation   "conditional  legislation"   or   "rule-making power",  of  which presumably the  constitution-makers  were fully aware.  I have again no hesitation in holding that our constitution-makers  accepted the American doctrine  against delegation of legislative power, and on grounds of  adminis- trative  convenience  and to meet  particular  circumstances they carefully made express provisions within the  Constitu- tion for devolution of power in those eventualities.      Article  53 of the Constitution concerns the  executive power  of  the Union. It is vested in the President  and  in express terms it is stated in that article that it shall  be exercised by him either directly or through officers  subor- dinate  to  him in accordance with  this  Constitution.  The Parliament  is  authorized  by law to  confer  functions  on authorities  other than the President. A careful reading  of this article shows that an elaborate provision has been made in the Constitution for employing agencies and machinery for the  exercise     of the executive power of the Union.   The President is vested with the supreme command of the  Defence Forces  and in addition to this power, power  of  delegation has been conferred on Parliament even in its executive field in  article 53 (3) (b). Similar provision has been  made  in regard  to the executive power of each  State:(vide  article 154).   In article 77 provision has been made as to how  the business of the Government of India has to be conducted. The President  has been conferred the power of making rules  for the more convenient transaction of the business 943 of  the  Government of India and for  the  allocation  among Ministers  of the said business.  Such a detailed  provision regarding the exercise of executive power does not exist  in the other constitutions to which our    attention was drawn. Article 79 provides that there shall be a Parliament for the Union.  Provision has then been made in the various articles how  the Parliament has to be constituted and how it has  to conduct  its business, what officers and secretariat it  can employ and with what powers.  Articles 107 to 119 relate  to legislative  procedure.  It is implicit in  these  elaborate provisions  that  the Constitution  bestowed  the  lawmaking powers  on the body thus constituted by it, and it was  this body  in  its corporate capacity that had  to  exercise  its judgment  and discretion in enacting laws and  voting  taxes and  that  judgment had to be arrived at  by  following  the

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rules  of procedure expressly laid  down  therein.   Article 123 confers legislative power on the President when  Parlia- ment  is not in session and this power is co-extensive  with the legislative power of the Parliament itself.  Article 124 deals with the Union judiciary.  It prescribes the number of Judges and the method of their appointment and it lays  down the procedure that the President has the power in making the appointments.  In article 140 provision has been made  under which  Parliament can confer on the Supreme Court such  sup- plemental  powers  as  may appear to be  necessary  for  the purpose  of enabling the court more effectively to  exercise the jurisdiction conferred upon it by or under this  Consti- tution.   An express provision of this kind, in my  opinion, very  clearly  negatives  the  proposition which the learned Attorney-General  has been contending for. If the  power  of delegation of legislative powers is implict in the power  of legislation  itself, the constitution-makers would not  have made an express provision in article 140 bestowing authority on  Parliament  for conferment of ancillary  powers  on  the Supreme Court. Parliament obviously had authority to  legis- late on "Supreme Court" as it is one of the subjects in  the Union List. Article 145 (1) (a)again very strongly 944 negatives  the proposition of the learned Attorney  General. The  constitution has authorized the Supreme Court  to  make rules as to the persons practising before   the court.  This is one of the subjects in the Union List and this conferment of power by the Constitution on the Supreme Court is subject to the provision of any law made by the Parliament. In other words, Parliament has been given express power to take  away this power or supplement it by making a law. In my judgment, such a provision is quite foreign to a constitution in which delegation of law-making powers is implicit. Detailed provi- sion has been made for the appointment of High Court  Judges in  article 217, and rule making powers have been  given  to the High Courts under article 227. In article 243 the Presi- dent  has been given the power to make regulations  for  the peace and good government of territories enumerated in  Part D of the First Schedule and in exercise of that power he can repeal  or amend any law made by Parliament or  an  existing law. The Constitution itself has delegated the powers of the Parliament  to the President wherever it thought  that  such delegation was necessary. Articles 245 and 246 demarcate the field  of legislation between the Parliament and  the  State legislature and in article 248 provision has been made  that residuary powers of legislation remain  in the   Parliament. Article 250 makes provision for cases of emergency.  Parlia- ment  in that event has power to make laws for the whole  or any  part  of  the territory of India with  respect  to  any matters  enumerated  in the State lists. Article  252  is  a somewhat peculiar provision. Under it Parliament can  legis- late  for two or more States with their consent. This  is  a form  of  exercise of legislative power by Parliament  as  a delegate  of  the State as by its consent  alone  Parliament gets the power of legislation. By article 258 the  President has been authorized with the consent of the Government of  a State to entrust either conditionally or unconditionally  to that Government or to its officers functions in relation  to any  matter  to which the executive power of the  Union  ex- tends. In that article provision has also been made. for 945 delegation of powers by a law made by Parliament. By article 349 the power of the Parliament to enact laws in respect  of language has been restricted. Article 353 states the  effect of a proclamation of emergency and  provides that the execu-

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tive  power of the Union in such a case shall extend to  the giving of directions to any State as to the manner in  which the executive power thereof is to be exercised.  Clause  (2) of  this  article requires emphasis. It  provides  that  the power of Parliament to make laws with respect to any matters shall  include  power  to make laws  conferring  powers  and imposing duties, or authorizing the conferring of powers and he  imposition  of duties, upon the Union, or  officers  and authorities of the Union, as respects that matter,  notwith- standing that it is one which is not enumerated in the Union List. Parliament in an emergency under article 250 has  full power to make laws on subjects within the State List and  is certainly entitled to delegate that power if that power is a content  of  legislative power but the  constitution  makers thought otherwise and made an express provision for  delega- tion of power in such a situation. Article 357 provides that where  by  proclamation issued under clause (1)  of  article 356, it has been declared that the powers of the legislature of the State shall be exercisable by or under the  authority of  Parliament,  it  shall be competent  for  Parliament  to confer on the President the power of the legislature of  the State to make laws, and to authorize the President to  dele- gate,  subject  to such conditions as he may  think  fit  to impose, the power so conferred to any other authority to  be specified  by him in that behalf.  This is the only  article by  which the Constitution has authorized the delegation  of essential  legislative power.  Possibly it was thought  that in that contingency it was necessary that Parliament  should have power to confer legislative power on the executive  and to clothe it with its own legislative capacity in the  State field  and  further to authorize the President  to  delegate that  legislative power to any other authority specified  by him.   A reference to the entries in the three Lists of  the Seventh Schedule further 946 illustrates  this  point.  Entry 93 of List  I  is  Offences against  laws  with respect to any of the  matters  in  this List."   Entry  94  is "Inquiries,  surveys  and  statistics for the purpose of any of the matters in this List.’’  Entry 96  is "Fees in respect of any of the matters in this  List, but  not  including fees taken in any court."  Entry  95  is "Jurisdiction  and powers of all courts, except the  Supreme Court,  with  respect to any of the matters in  this  List." All  these entries are instances of subjects incidental  and ancillary  to the main subjects of legislation contained  in the  List. Similar entries are to be found in Lists  II  and III  as well. The Constitution seems to have taken  care  to confer  legislative  power in express terms  even  regarding incidental  matters and it is therefore unnecessary to  read by  implication and introduce by this process within such  a constitution any matter not expressly provided therein. I  am satisfied that the constitution-makers considered  all aspects  of  the question of delegation  of  power,  whether executive,  legislative or judicial, and expressly  provided for  it whenever it was thought necessary to do so in  great detail. In this situation there is no scope for the applica- tion of the doctrine contended for by the learned  Attorney- General  and it must be held that in the absence of  express powers  of delegation allowed by the Constitution, the  Par- liament  has no power to delegate its essential  legislative functions to others, whether State legislatures or executive authorities,  except, of course, functions which  really  in their true nature are ministerial, The scheme of the Consti- tution and of the Government of India Act, 1935, is that  it expressly entrusted with legislative capacity certain bodies

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and  persons  and it also authorised the  creation  of  law- making  bodies  wherever it thought necessary  but  gave  no authority  to  create a new law-making body not  created  by itself.   It even created the executive as a legislature  in certain  contingencies.  In these circumstances  it  is  not possible to add to the list of legislative authorities by  a process of delegation.  As pointed out by Crawford on Statu- tory 947 Construction,  at  page 333.  "If a statute  enumerates  the things  upon  which it is to operate, everything  else  must necessarily  and by implication be excluded from its  opera- tion and effect.  So if a statute directs certain acts to be done  in a specified manner by certain persons,  their  per- formance in any other manner than{ that specified, or by any other person than is there named, is impliedly  prohibited." The ordinary rule is that if authority is given expressly by affirmative words upon a defined  condition, the  expression of  that condition excludes the doing of the act  authorised under  other circumstances than those as defined. Under  the Government  of  India  Act, 1935, the  executive  enjoyed  a larger  power  of legislation than is contained in  the  new constitution.   It seems to have been cut down to a  certain extent. The new constitution confers authority on Parliament to make laws for the State of Delhi.  It also authorizes  it to  create  a legislature for that State.  The  Constitution therefore  has  made ample provision indicating  bodies  who would be competent to make laws for the State of Delhi.   In my  opinion, therefore, delegation of legislative  power  to the executive in matters essential is unconstitutional.  Any legislative  practice  adopted during  the  pre-constitution period for undeveloped and excluded areas can have no  rele- vancy in the determination of this point.     Having examined the provisions of the new  constitution, the constitutional position of  the Indian legislature under the Indian Councils Act of 1861 and    of the Government  of India  Act,  1935,  as subsequently adapted  by  the  Indian Independence Act, 1947, may now be examined.     As  already stated, the Government of India  Act,  1935, envisaged  a federal constitution for India with a  demarca- tion of the legislative field between the Federation and the States  and  it  is the scheme of this Act  which  has  been adopted in the new constitution. I have already expressed my respectful agreement with the view expressed by Varadachari- ar J. in Benoari Lal Sarrna’s case(1) that the constitution- al (1) [1943] F.C.R. 96. 122 948 position  in India under this Act approximates more  closely to the American model than to the English model and it seems to me that delegation of legislative   power in its essenti- ality  is not allowed by its provisions. During a period  of emergency  the Governor General could himself under his  own proclamation become the executive as well as the legislature and the necessities of administrative convenience were not a compelling  circumstance for introducing into the scheme  of the  Act  by implication, authority in  Parliament  for  the delegation  of  legislative power. This  Act  also  contains detailed provisions authorizing delegation of power both  in the executive and legislative field wherever it was  consid- ered necessary to confer such power. The Indian Independence Act  by section 6 conferred the power of legislation on  the Dominion Parliament within the ambit of the Act of 1935.  By other provisions of the Indian Independence Act it made  the

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Dominion  Parliament a Constituent Assembly for the  purpose of making the new constitution for India and it also gave it authority  to repeal Acts of Parliament. For the purpose  of ordinary  law-making it had the same powers as the  legisla- tures  in India enjoyed under the Government of  India  Act, 1935,  and  the  question referred to us in  regard  to  the Ajmer-Merwara  Act, 1947, has to be answered on  the  provi- sions of the constitution contained in the Constitution  Act of 1935.      The  constitutional position in India prior to the  Act of 1935 may now be briefly stated. Before the Charter Act of 1833  there was a division of legislative power between  the Governor-General and the Presidencies. By that Act the power of  the Presidencies as legislatures was terminated and  the whole  law-making power was vested in  the  Governor-General in  Council. Mr. Macaulay was added as a legislative  member to  the executive council without a right to vote.  In  sub- stance  the  executive and the  legislative  functions  were performed  by  the same body, of course, with the  help  and advice  of  Mr.  Macaulay.  With  slight  modifications  the situation remained the same till the   Indian Councils  Act, 1861.  Under  this  Act the 949 Governor-General  in Council in legislative  meetings  could legislate  for  the whole of India  and  local  legislatures could also legislate for the provinces. By section 10 of the Act  the  legislative power was vested  in  the    Governor- General in Council. In section 15 it was laid down how  that power  was to be exercised. For conduct of  the  legislative business  power  was given to the Governor-General  to  make rules  in section 18. Section 22 laid down the ambit of  the legislative power.  Section 23 bestowed power on the  Gover- nor-General  in emergencies to make ordinances.  Section  44 empowered the Governor-General to create local  legislatures and  confer on them legislative power.  It appears that  the scheme  of  the Councils Act was  that  whenever  Parliament wanted  the  Governor-General in  Council to have  power  to create  legislatures or to make rules or  regulations,  that power was conferred in express terms.  By another statute in the year 1870 summary power to make law was conferred on the Governor-General  in  his executive capacity in  respect  to less advanced areas, i.e., non-regulation provinces. Another charter would not have been necessary if the Governor-Gener- al could arm himself with legislative power by a process  of delegation from his own Council. In my opinion, the  consti- tution  as envisaged by the Indian Councils Act, 1861,  does not authorize the delegation of essential legislative  power by any of the legislative authorities brought into existence by that Act to the executive and it was for this reason that their Lordships of the Privy Council in Burgh’s case(1)  did not base their decision on this ground but merely upheld the enactment as intra vires on the ground of conditional legis- lation.   I am in respectful agreement with the  opinion  of Markby  J. expressed in the year 1877 in these terms:"  that any  substantial delegation     of legislative authority  by the legislature of this country is void." The Privy  Council on appeal did not dissent from this view.      It was argued that legislative practice in India  since a  long time has been such as would validate statutes (1) 5 I.A. 178. 950 designed on the model of the three statutes under  reference to  us. Reference was made to the following observations  in U.S.v.  Curriss Wright(1) :-- "Uniform, long continued and undisputed legislative practice

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resting  on an admissible view of the  constitution  goes  a long  way to the direction of proving the presence of  unas- sailable  grounds  for  the  constitutionality of the  prac- tice." In  my  opinion, there is no evidence in this case  of   any uniform, long continued and undisputed legislative  practice for  validating  statutes  which have been drafted on  lines similar  to the statutes in question. The material on  which this  argument was based is of a most meagre  character  and does not warrant the conclusion contended for.     Annexure (A) annexed to the case stated on behalf of the President  mentions two instances only before the year  1912 of  this  alleged long continued legislative  practice,  but even these instances are not analogous to the statutes which have been given in the reference, The scheme of those enact- ments  in vital matters is different from the enactments  in question. The first instance of this legislative practice is said to be furnished by section 5(a) which  was added to the Scheduled  Districts Act, 1874, by Act XII of 1891. It  pro- vided that with the previous sanction of the Governor-Gener- al  in  Council in declaring an enactment in  force  in  the scheduled districts or in extending an enactment to a sched- uled district the Local Government may declare the  applica- tion of the Act subject to such restriction and modification as   the  Government  may  think  fit.  It   is   noticeable that,section 7 of the Delhi Laws Act has not been drafted in the  same terms as section 5(a) of the  Scheduled  Districts Act.-Though constitutionally speaking, the  Governor-General discharged the executive and legislative functions in  meet- ings held separately for the two purposes and with the  help of  some additional members, for all practical purposes  the Governor-General was truly 299 U.S. 304. 951 speaking in both executive and legislative matters the  real authority in this country, and if previous sanction of  this authority  was necessary before declaring the law even  with modifications,  this  instance cannot be     such  as  would constitute legislative practice for what    has been enacted in section 7 of the Delhi Laws Act.     The  second instance cited is of the Burma Laws     Act, 1898.  In  section 10 of this Act it was provided  that  the Local  Government  may, with the previous  sanction  of  the Governor-General  in  Council  by  notification,  with  such restrictions  and  modifications as he  thinks  fit,  extend certain Acts in force in any part of Upper Burma at the date of  the extension to certain areas. In section 4 a  schedule was given of all the Acts that were in force in Upper  Burma at  the time of the enactment. This instance also  does  not furnish evidence of legislative practice for the  validation of  section  7 of the Delhi Laws Act in which  there  is  no provision  like the one contained in section 4 of the  Burma Laws Act, 1898, and which also contains a provision  similar to  section 5(a) of the  Scheduled Districts  Act  requiring the  previous sanction of the Governor-General  in  Council. Both  these important things are lacking in the  Delhi  Laws Act.   Between 1861 and 1912, a period of over fifty  years, two instances of this kind which occurred within seven years of  each  other cannot fail within the criterion  laid  down in the case cited above.  After  the  year 1912 three other illustrations  were  men- tioned.  The first of these is in sections 68 and 73 of  the Inland Steam Vessels Act, 1917. Section authorised modifica- tion  of  an enactment for the purpose of  adaptation.  This certainly  is no instance of the kind of  legislation.  con-

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tained  in  the Delhi Laws Act, 1912, section 7, or  in  the Ajmer-Merwara Act, 1947. Section 68 authorized the extension of certain chapters to certain areas with modifications.     The  next  instance mentioned was the  Cantonments  Act, 1924.  By  section 9 of this Act it was  provided  that  the Central  Government  may by notification  exclude  from  the operation of any part of this Act the 952 whole or any part of a cantonment or direct that any  provi- sions of this Act shall in the case of any cantonment  apply with such modifications as may be so      specified.    The  third  instance mentioned was in section 30  of  the Petroleum  Act, 1934. Here it was provided that the  Central Government  may  by  notification apply all or  any  of  the provisions  of  this Act with such modifications as  it  may think fit to any other dangerous inflammable substance. This is  an  instance  of adding certain items  to  the  schedule annexed to an Act.       These three instances show that between the year  1917 and  1934,  a period of seventeen   years,  three  instances occurred  of  legislation, though not of the  same  kind  as contained  in  the Delhi Laws Act, 1912,  but  bearing  some similarity  to that kind of legislation. No conclusion  from those  instances of any uniform legislative practice can  be drawn.       The  learned counsel appearing for the  Government  of Uttar  Pradesh  submitted  a note in which  an  instance  is mentioned  of  the Uttar Pradesh Land Revenue  Act,  III  of 1901, which in section 1 of subsection (2) provided that the State Government may by notification extend the whole or any part  of  this Act to all or any of the  areas  so  excepted subject  to  such exceptions or modifications as  it  thinks fit. This instance does not materially affect the situation.       After   the  research  of  a  fortnight  the   learned Attorney-General  gave us a supplementary list of  instances in  support of his contention.  Two instances  contained  in this  list  are from sections 8 and 9 of Act  XXII  of  1869 discussed  in Burah’s case(1).  The third instance  is  from section  39 of Act XXIII of 1861, again considered  in  that case,  and these have already been discussed in  an  earlier part of this judgment.  The only new instance cited is  from the  Aircraft Act of 1934, which authorized modification  in the specification of an aircraft. It confers no authority to modify  any  law. Two instances in’ this list are  from  the Airforce Act  1950, which was enacted subsequent to (1) 5 I.A. 178. 953 the enactment under reference to us and cannot be considered relevant  on this subject. The last instance cited  is  from the  Madras Local Boards Act, 1920, which    authorizes  the Governor to extend the Act with certain     modifications to areas  to which it originally had not    been made  applica- ble.  This instance of 1920 bears   no relevancy for  deter- mining the validity of section 7 of the Act of 1912, enacted eight years before this instance came into existence.     A seemingly similar instance to the enactment  contained in  section 7 of the Delhi Laws Act is in section 8  of  Act XXII  of  1869, considered by the Privy Council  in  Burah’s case(1). That instance, however, when closely examined,  has no real resemblance to section 7 of the Delhi Laws Act.  Act XXII  of 1869 was enacted to remove the Garo Hills from  the jurisdiction  of  tribunals established  under  the  General Regulations. That was its limited purpose. By section 5  the administration  of  this  part was vested  in  the  officers appointed  by  the Lieutenant-Governor of Bengal  and  those

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officers had to be under his control and were to work  under his  instructions.   The executive  administration  of  this territory was, therefore, vested in the  Lieutenant-Governor of  Bengal.  By  section 8 of the Act,  already  cited,  the Lieutenant-Governor  was authorized by notification  in  the Calcutta Gazette to extend to the excluded territories  laws in force in the other territories subject to his  government or laws which might thereafter be enacted by the Council  of the  Governor-General or the Lieutenant-Governor in  respect of those territories.  Both these authorities were competent to  make  laws for the province of Bengal. The  validity  of section  8  was  not questioned in Burah’s  case(1)  and  no argument  was  addressed about it. Regarding  this  section, however, the following observations occur in the judgment of their Lordships which were emphasized before us:--     "The Governor-General in Council has determined, in  the due and ordinary course of legislation, to remove (1) 5 t.A. 178 954 a particular district from the jurisdiction of the  ordinary courts and offices, and to place it under new    courts  and offices, to be appointed by and responsible    to the  Lieu- tenant-Governor  of  Bengal; leaving it to  the  Lieutenant- Governor  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 public  notifica- tion  to  that  district any law, or part of  a  law,  which either 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 leave the time, and  the  manner,  of carrying it into effect to the discretion of the Lieutenant- Governor; and also, that the laws which were or might be  in force  in the other territories subject to the same  Govern- ment  were  such as it might be fit and proper to  apply  to this district also." All that these observations mean is that a law ’having  been made  by  a competent legislature for the  territory   under his jurisdiction  could  be made  applicable  to a  district excluded  for   certain purposes by a  notification  of  the LieutenantGovernor. As already pointed out, the  Lieutenant- Governor  could make laws for the whole province  of  Bengal and similarly, the Governor-General in Council could do  so. The law having been made by a competent legislature for  the territory  for  which it had power to  legislate,  the  only power left in the Governor-General was to extend that legis- lation to an excluded area; but this is not what ’the  Delhi Laws  Act had done. As will be shown later, the  Delhi  Laws Act in section 7 has authorized the Governor-General in  his executive capacity to extend to Delhi laws made by  legisla- tures  which had no jurisdiction or competence to make  laws for Delhi.      Having stated the principles on which answer has to  be given to the questions referred to us, I now proceed to give my opinion on each of the three questions. 955     The  first  question relates to section 7 of  the  Delhi Laws  Act,  1912, and concerns its validity in whole  or  in part. The section as enacted in 1912 was in these terms :-     "The Governor-General in Council may by notification  in the  official  gazette  extend with  such  restrictions  and modifications  as he 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."

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   The section gives a carte blanche to the GovernorGeneral to  extend  to the newly formed province  any  enactment  in force in any part of British India at the date of the  noti- fication  and  not  necessarily any enactment  in  force  in British  India at the date of the passing of the Delhi  Laws Act.  No schedule was annexed to the Act of  the  enactments that were in force in any part in British India at the  date of  the passing of the Act.  As regards the enactments  that may be in force in any part of British India at the date  of any notification, there was no knowing what those laws would be.   Laws that were to be made after 1912, their  principle and policy could not be known to the legislature that enact- ed  section 7 of the Delhi Laws Act.  It seems obvious  that the legislature could not have exercised  its judgment,  nor its  discretion in respect of those laws. It also  conferred on  the  Governor-General power of  modifying  existing  and future  enactments passed by different legislatures  in  the country.   The power of modification implies within  it  the power  of  amending those statutes. To use the  words  of  a learned  Judge,  the section conferred a kind  of  a  vague, wide,  vagrant  and uncanalised authority on  the  Governor- General. There is no provision within the section by  virtue of  which the mind of the legislature could ever be  applied to  the  amendments  maple by the  Governor-General  in  the different statutes passed by different legislatures in India and extended to Delhi. 123 956     Illustratively, it may be pointed out that numerous rent control  Acts have been passed by different legislatures  in India, laying down basically different policies and  princi- ples. The Provincial Government under the Delhi Laws Act  is authorised  to apply the policy of any one of these Acts  to Delhi  or  the  policy which it might  evolve  by  combining different such statutes passed by different State   legisla- tures.  Legislative policy in the matter of rent control had not been evolved by the year 1912.  Another illustration may be  taken from the law of prohibition. Different State  gov- ernments  have adopted a policy of either complete  prohibi- tion  or of local option.  What policy is to be  applied  to Delhi  and who is to decide that policy ?  Obviously,  under section 7 the Provincial Government can without going to the legislature adopt any policy it likes whether of partial  or of  complete prohibition and may apply to Delhi any  law  it thinks  fit.  It is obvious therefore that within  the  wide charter of delegated power given to the executive by section 7 of the Delhi Laws Act it could exercise essential legisla- tive  functions and in effect it became the legislature  for Delhi.  It seems to me that by enacting section 7 the legis- lature  virtually abdicated its legislative power in  favour of  the executive. That, in my judgment, was  not  warranted by the Indian Councils Act, 1861, or by any decision of  the Privy  Council or on the basis of any legislative  practice. The  section  therefore, in my opinion, is ultra  vires  the Indian  Councils  Act, 1861, in the  following  particulars: (i)inasmuch  as it permits the executive to apply  to  Delhi laws enacted by legislatures not competent to make laws  for Delhi and which these legislatures may make within their own legislative  field,  and  (ii) inasmuch as  it  clothes  the executive  with  co-extensive legislative authority  in  the matter of modification of laws made by legislative bodies in India.   If  any list of the existing  laws  passed  by  the Governor-General in Council in his legislative capacity  and of  laws adopted by it though passed by  other  legislatures was  annexed  to the Act, to that extent the  delegation  of

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power, but 957 without  any power of modifications in favour of the  execu- tive, might have been valid, but that is not what was enact- ed in section 7 of the Delhi Laws Act. Power to extend  laws made in the future by the GovernorGeneral in Council for the whole of India or adopted by it though passed later by other legislatures  would  also be intra vires, but  farther  than that  the legislature could not go. If one may say so,  sec- tion  7 declares that the legislature has no policy  of  its own and that the Governor-General in Council can declare  it and can determine what laws would be in force in Delhi.     The second question concerns section 2 of the Ajmer-Mer- wara  (Extension  of  Laws) Act, 1947,  which  provides  for extension of enactments to Ajmer-Merwara. It says:     "The  Central  Government  may by  notification  in  the official  gazette extend to  the province of  AjmerMet  warn 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."     For the reasons given for holding that section 7 of  the Delhi  Laws Act is ultra vires the constitution in two  par- ticulars, this section also is ultra vires the Government of India Act, 193s, in those particulars. The section does  not declare  any law but gives the Central Government  power  to declare  what  the law shall be. The choice  to  select  any enactment  in  force  in any province at the  date  of  such notification clearly shows that the legislature declared  no principles or policies as regards the law to be made on  any subject.  It may be pointed out that under the Act  of  1935 different  provinces had the exclusive power of laying  down their  policies  in  respect to subjects  within  their  own legiSlative field.  What policy was to be adopted for Delhi, whether that adopted in the province of Punjab or of Bombay, was  left  to the Central  Government.  Illustratively,  the mischief  of such law-making may be pointed out with  refer- ence  to  what  happened in pursuance  of  this  section  in Ajmer-Merwara.   The  Bombay  Agricultural  Debtors’  Relief Acco,  1947, has  been 958 extended  under cover of this section to  Ajmer-Merwara  and under  the power of modification by amending the  definition of the word ’debtor’ the whole policy of the Bombay Act  has been altered.  Under the Bombay Act a person is a debtor who is indebted and whose annual income from sources other  than agricultural and manly labour does not exceed 33 per cent of his total annual income or does not exceed Rs. 500, whichev- er  is  greater. In the modified statute "debtor"  means  an agriculturist  who owes a debt, and "agriculturist" means  a person  who  earns his livelihood by agriculture  and  whose income  from  such source exceeds 66 per cent of  his  total income. The outside limit of Rs. 500 is removed.  The  exer- cise  of  this power amounts to making a new law by  a  body which  was not in the contemplation of the Constitution  and was  not authorized to enact any laws.  Shortly stated,  the question  is, could the Indian legislature under the Act  of 1935  enact  that the executive could extend to  Delhi  laws that  may be made hereinafter by a legislature in  Timbuctoo or Soviet Russia with modifications.  The answer would be in the negative because the policy of those laws could never be determined by the law making body entrusted with making laws for  Delhi. The Provincial legislatures in India  under  the Constitution Act of 1935 qua Delhi constitutionally stood on no  better  footing than the legislatures of  Timbuctoo  and Soviet  Russia  though geographically and  politically  they

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were in a different situation.     The  third  question concerns section 2 of  the  Part  C States (Laws) Act, 1950, which provides that-     "  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 or 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." 959     For  reasons given for answering questions 1 and 2  that the enactments mentioned therein are ultra rites the consti- tution  in  the particulars stated, this  question  is  also answered similarly.  It might, however, be observed that  in this  case  express power to repeal or  amend  laws  already applicable  in Part C States has been conferred on the  Cen- tral  Government.  Power to repeal or amend laws is a  power which  can  only be exercised by an authority that  has  the power to enact laws. It is a power co-ordinate and co-exten- sive with the power of the legislature itself. In  bestowing on  the  Central Government and clothing it  with  the  same capacity  as  is  possessed by the  legislature  itself  the Parliament has acted unconstitutionally.     In offering my opinion on the questions mentioned in the reference  I have approached this matter with great  caution and  patient attention and having in mind the rule that  the benefit  of reasonable doubt on questions on  the  constitu- tional validity of a statute has to be resolved in favour of legislative action. The legislative action, however, in  the enactments which are the subject-matter of the reference has been  of such a drastic and wide and indefinite nature  con- sidered  in  its full amplitude that it is not  possible  to hold that in every particular these enactments are constitu- tional.     MUKHERJEA J.--This is a reference made by the  President of India, under article 143 (1) of the Constitution,  invit- ing this Court to consider and report to him its opinion  on the three following questions :--     (1) Was section 7 of the Delhi Laws Act, 1912, or any of the  provisions thereof, and in what particular or  particu- lars  or  to what extent ultra vires the  Legislature  which passed the said Act ?     (2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, 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 ?     (3) Is section 2 of the Part C States (Laws) Act,  1950, or any of the provisions thereof, and in what 960 particular or particulars or to what extent ultra vires  the Parliament ?     The  necessity of seeking the advisory opinion  of  this Court is stated to have arisen from the fact that because of the  decision  of the Federal  Court in Jatindra Nath  Gupta v. The Province of Bihar(1), which held the proviso to  sub- section (3) of section 1 of the Bihar Maintenance of  Public Order  Act, 1947, ultra vires the Bihar Provincial  Legisla- ture,  by  reason of its amounting to a  delegation  of  its legislative  powers to an extraneous authority, doubts  have arisen  regarding  the  validity of  the  three  legislative provisions  mentioned above, the legality of the  first  and the  second  being actually called in  question  in  certain

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judicial  proceedings which are pending before some  of  the High Courts in India.     The  Delhi Laws Act, 1912, which is the earliest of  the enactments  referred  to above, was passed in  1912  by  the Governor-General in Council at its legislative meeting, that being the legislature constituted for British India at  that time, under the provisions of the group of statutes known as Indian Councils Acts (1861-1909).  Delhi, which up till  the 17th  of September, 1912, was a part of the province of  the Punjab, was created a Chief Commissioner’s Province on  that date and on the following date the Governor-General’s Legis- lative  Council enacted the Delhi Laws Act (Act  XIII)  1912 which came into force on and from the 1st of October,  1912. Section 7 of the Act, in regard to which the controversy has arisen, provides as follows :--     "The  Provincial Government may, by notification in  the official gazette, extend with such restrictions and  modifi- cations  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."     The Ajmer-Merwara (Extension of Laws) Act was enacted on the  31st  December,  1947, by the  Dominion (1) [1949-50] F.C.R. 595. 961 Legislature of India under the provisions of the  Government of India Act, 1935 (as adapted under the Indian Independence Act of 1947). Section 2 of the Act is in the following terms :--     "2.  ’Extension  of enactments to  Ajmer-Merwara.  --The Central  Government  may  be notification  in  the  official gazette  extend to the province of Ajmer-Merwara  with  such restrictions  and modifications as it thinks fit any  enact- ment which is in force in any other province at the date  of such notification."     Part C States (Laws) Act, 1950, has been enacted by  the Indian Parliament after the new Constitution came into force and  the  provision  of section 2 of the Act  to  which  the dispute relates is worded thus:--     "2.  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."     It will be noticed that in all the three items of legis- lation,  mentioned  above, there has been, what may  be  de- scribed,  as conferment by the legislatures,  which   passed the respective enactments, to an outside authority, of  some of the powers which the legislative bodies themselves  could exercise;  and the authority in whose favour the  delegation has  been  made  has not only been empowered  to  extend  to particular areas the laws which are in force in other  parts of  India but has also been given a right to introduce  into such  laws, any restrictions or modifications as  it  thinks fit.  The controversy centres round the point as to  whether such  delegation  was  or is within the  competency  of  the particular legislature which passed these enactments, 962      The  contention  of the learned  Attorney-General,  who represents  the President of, India, in substance is that  a legislature which is competent to legislate on  a particular

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subject has the competence also to delegate its  legislative powers  in respect of that subject to any agent or  external authority  as  it thinks proper. The extent  to  which  such delegation should be made is entirely a matter for consider- ation  by the legislature itself and a court of law  has  no say  in the matter. There could be according to the  learned Attorney-General,  only  two possible limitations  upon  the exercise of such  right of delegation by a competent  legis- lative body. One is that the legislature cannot abdicate  or surrender  its powers altogether or bring into  existence  a new  legislative power not authorised by the  constitutional instrument.  The second is that if the constitutional  docu- ment has provided for distribution of powers amongst differ- ent  legislative bodies, one legislature cannot delegate  to another,  powers, which are vested in it, exclusively  under the  Constitution. It is argued that, save and except  these two limitations, the doctrine of inhibition of delegation by legislative  authority  has no place in a  Constitution  mo- delled  on the English system which does not  recognise  the principle of separation of powers as obtains in the American system.  These questions are of great constitutional  impor- tance and require careful consideration.     In America the rule of inhibition against delegation  of legislative  powers is based primarily upon the  traditional American  doctrine   of  "separation   of  powers".  Another principle  is also called in to aid in support of the  rule, which  is expressed in the wellknown maxim of  Private  Law, "delegatus non potest delegare", the authority for the same, being  based  on one of the dieta of Sir Edward  Coke.   The modern  doctrine  of ,’separation of powers" was  a  leading tenet  in the political philosophy of the 18th  century.  It was  elaborated by Montesquieu in his "Lesprit des lois"  in explanation of the English political doctrine and was adopt- ed, in theory at least, in all its fulness and 963 rigidity by the constitution-makers of America.  The consti- tution of America provides for the separation of the govern- mental powers into three basic divisions-the executive,  the legislative,  and the judicial--and the powers  appertaining to  each department have been vested in a separate  body  of public servants. It is considered to be an essential princi- ple(1) underlying the constitution that powers entrusted  to one  department  should  be exercised  exclusively  by  that department  without encroaching upon the powers confided  to others.  As is said by Cooley,(2) "The different classes  of power have been apportioned to different departments; and as all  derive their authority from the same instrument,  there is  an implied exclusion of each department from  exercising the functions conferred upon the others."     The  other  doctrine that is invoked in support  of  the anti-delegation  rule  is  the well  accepted  principle  of municipal law, which prevents a person upon whom a power has been  conferred, or to whom a mandate has been  given,  from delegating  his powers to other people. The  legislature  is supposed  to  be  a delegate deriving its  powers  from  the ’people’ who are the ultimate repository of all powers,  and hence it is considered incapable of transferring such powers to any other authority.     These doctrines, though well recognised in theory,  have a  restricted  and limited application in  actual  practice. Mr. Justice Story said(3)--     "But  when we speak of a separation of the  three  great departments of Government and maintain that that  separation is  indispensable  to public liberty, we are  to  understand this  maxim  in a limited sense. It is not meant  to  affirm

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that  they  must be kept wholly and  entirely  separate  and distinct,  and have no common link of connection or  depend- ence, the one upon  (1) See Kilbourn v. Thomson, 103 U.S. 168 at p. 190.  i2) See Cooley’s "Constitutional Limitations", 7th Edition, page 126.  (3) Story’s Constitution, s. 525, 124 964 the  other,  in the slightest degree.  The true  meaning  is that the whole power of one of these departments should  not be exercised by the same hands which possess the whole power of  either of the other departments: and that such  exercise of the whole would subvert the principles of free  constitu- tion."     As regards the maxim delegatus non potest delegare,  its origin and theoretical basis are undoubtedly different  from those  of  the doctrine of separation of  powers.  But,  for practical purposes, both these doctrines are linked together and are used as arguments against the Congress attempting to invest any other authority with legislative powers.  Accord- ing  to Willis, the disability of the Congress  to  delegate its  legislative  powers to the executive,  purports  to  be based  upon the doctrine of separation of powers; while  its incapacity to bestow its authority upon an independent  body like  a  Board or Commission is said to rest  on  the  maxim delegatus non potest delegare(1).     As said above, a considerable amount of flexibility  was allowed in the practical application of these theories  even from  early times. The vast complexities of social and  eco- nomic  conditions  of the modern age, and the  ever  growing amount of complicated legislation that is called for by  the progressive  social  necessities, have made  it  practically impossible for the legislature to provide rules of law which are complete in all their details. Delegation of some  sort, therefore, has become indispensable for making the law  more effective and adaptable to the varying needs of society.     Thus  in  America, despite the  theory  which  prohibits delegation of legislative power,  one comes across  numerous rules  and regulations passed by non legislative  bodies  in exercise of authority bestowed on them by the legislature in some shape or other. The legislature has always been  deemed competent to create a municipal authority and empower it  to make  by-laws. In fact, such legislation is based  upon  the immemorial (1) Willis on Constitutional Law, p. 965 Anglo-Saxon practice of leaving to each local community  the management  and control of local affairs. The  Congress  can authorise  a  public  officer to make  regulations,  or  the Judges  of the Court to frame rules of procedure  which  are binding  in  the same way as laws proper. It  can  authorise some other body to determine the conditions or contingencies under which a statute shall become operative and can empower administrative  functionaries to determine facts  and  apply standards.   "The separation of powers between the  Congress and  the Executive", thus observed Cardozo, J. in  his  dis- senting judgment in Panama Refining Company v. Ryan(1),  "is not  a doctrinaire concept to be made use of  with  pedantic rigour.  There must be sensible approximation, there must be elasticity of adjustment in response to the practical neces- sities of Government which cannot foresee today the develop- ments  of  tomorrow in their nearly  infinite  variety".  In fact,  the  rule of non-delegation has  so  many  exceptions engrafted  upon it that a well known writer(2) of  constitu-

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tional  law  has tersely expressed that it is  difficult  to decide  whether the dogma or the exceptions state  the  rule correctly.     It  does not admit of any serious dispute that the  doc- trine  of  separation of powers has, strictly  speaking,  no place  in  the system of government that India  has  at  the present  day  under her own  Constitution or which  she  had during the British rule.  Unlike the American and Australian Constitutions,  the Indian Constitution does  not  expressly vest the different sets of powers in the different organs of the  State.  Under  article 53(1), the  executive  power  is indeed  vested  in the President, but there  is  no  similar vesting provision regarding the legislative and the judicial powers.  Our Constitution, though federal in its  structure, is modelled on the British Parliamentary system, the  essen- tial feature of which is the responsibility of the executive to  the  legislature.   The President, as the  head  of  the executive, is to act on the advice of the Council of (1) 293 U.S. 388 at 440. (2) See Willis on Constitutional Law, p. 137, 966 Ministers,  and this Council of Ministers, like the  British Cabinet,  is a "hyphen which joins, a buckle which  fastens, the legislative part of the State to the executive part."     There could undoubtedly be no question of ’the executive being responsible to  the legislature in the year 1912, when the  Delhi Act X111 of 1912 was passed, but at that time  it was the executive which really  dominated  the  legislature, and  the  idea of a responsible government   was  altogether absent. It was the Executive Council of the  GovernorGeneral which  together  with sixty additional members, of  whom  33 were  nominated, constituted the GovernorGeneral’s  Legisla- tive  Council and had powers to legislate for the  whole  of British India.  The local legislatures in the provinces were constituted  in a similar manner.  The first advance in  the direction of responsible government was made by the  Govern- ment  of  India Act, 1919, which introduced dyarchy  in  the provinces.   The Government of India Act, 1935,  brought  in Provincial  autonomy,   and ministerial  responsibility  was established  in  the provinces subject to  certain  reserved powers  of the Governor.  In the Centre  the  responsibility was still limited and apart from the discretionary powers of the  Governor-General the Defence and External Affairs  were kept  outside  the purview of  ministerial  and  legislative control.  Thus whatever might have been the relation between the legislature and the executive in the different constitu- tional  set ups that existed at different periods of  Indian history  since the advent of British rule in  this  country, there has never been a rigid or institutional separation  of powers in the  form that exists in America.     The  maxim  delegatus non potest delegare  is  sometimes spoken  of as laying down a rule of the law of  agency;  its ambit is certainly wider than that and it is made use of  in various fields of law as a doctrine which prohibits a person upon whom a duty or office has devolved or a trust has  been imposed  from delegating his duties or powers to other  per- sons.  The 967 introduction  of  this maxim into the  constitutional  field cannot  be  said to be altogether  unwarranted,  though  its basis rests upon a doubtful political doctrine.  To  attract the  application  of this maxim, it is  essential  that  the authority attempting to delegate its powers must itself be a delegate  of  some other authority. The legislature,  as  it exists  in  India  at the present day,  undoubtedly  is  the

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creature  of  the  Indian Constitution,  which  defines  its powers and lays down its duties; and the Constitution itself is  a gift of the people of India to themselves.  But it  is not  a  sound political theory, that  the  legislature  acts merely as a delegate of the people. This theory once popula- rised  by Locke and eulogized by early American  writers  is not  much  in favour in modern times.  With  regard  to  the Indian Legislature as it existed in British days  constitut- ed  under the Indian Councils Act, it was definitely held by the  Judicial Committee in the well-known case of  Queen  v. Burah (1)  that it was in no sense a delegate of the British Parliament.   In  that  case the question arose  as  to  the validity  of  section 9 of Act XXII of 1869  passed  by  the Governor-General’s  Legislative Council.  The  Act  provided that certain special laws, which had the effect of excluding the  jurisdiction of the High Court, should apply to a  cer- tain district. known as Garo Hills, and section 9  empowered the Lieutenant-Governor of Bengal to extend the operation of these  laws to certain other areas if and when the  Lieuten- ant-Governor, by notification in the Calcutta Gazette, would declare that they should be so applied.  The majority of the Judges  of the Calcutta High Court upheld the contention  of the  respondent, Burah, that the authority conferred on  the Lieutenant-Governor  to  extend the Act in this way  was  in excess of the powers of the Governor-General in Council, and in  support of this view, one of the learned  Judges  relied inter  alia upon the principles of the law of agency.   This view  was  negatived  by the Judicial  Committee,  and  Lord Selborne, in  delivering  the judgment,  observed as follows: (1) 5 I.A. 178. 968     "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   cir- cumscribe   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."     Practically the same observations were reiterated by the Judicial  Committee  in the case of Hodge  v.  The  Queen(1) while describing the position of the Provincial  Legislature under the Canadian Constitution and stress was laid upon the plenitude  of  power which such Legislature  could  exercise when  acting  within  the limits prescribed for  it  by  the Imperial Parliament.     I  am  quite  willing to concede that  the  doctrine  of separation  of powers cannot be of any assistance to  us  in the  solution of the problems that require consideration  in the  present case.  In my opinion, too much importance  need not  also  be  attached to the maxim  delegatus  non  potest delegare,  although as an epigrammatic saying it embodies  a general principle that it is not irrelevant for our  present purpose.  But even then I am unable to agree with the  broad proposition enunciated by the learned Attorney-General  that a legislative power per se includes within its ambit a right for  the legislative body to delegate the exercise  of  that power in any manner it likes to another person or authority. I  am  unable  also to accept his contention  that  in  this respect  the authority of the Indian Legislature is as  ple- nary  as that of the British Parliament, and,  provided  the subject-matter  of legislation is not one outside the  field of  its legislative competence, the legislature in India  is able  to  do  through an agent anything which  it  could  do

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itself.     It is to be noted that so far as the British  Parliament is concerned, there is no constitutional limitation upon its authority or power.  In the words of Sir 9 App. Cas. 117. 969 Edward Coke (1),  "the power and jurisdiction of  Parliament is so transcendent and absolute that it cannot be  confined, either     for    causes    or    persons,    within     any bounds........................  It hath sovereign and uncon- trollable  authority in the making,  confirming,  enlarging, abrogating,   repealing,   reviving   and   expounding    of laws...................   this  being the place  where  that absolute despotic power which must in all governments reside somewhere  is entrusted by the constitution of  these  king- doms."  The British Parliament can not only legislate on any subject  it likes and alter or repeal any law it likes,  but being  both "a legislative and a constituent  assembly",  it can change and modify the so-called constitutional laws  and they can be changed by the same body and in the same  manner as  ordinary laws; and no act of the Parliament can be  held to be unconstitutional in a British Court of Law. (2)     This  sovereign  character was not, and  could  not  be, predicated of the Legislative Council of British India as it was  constituted under the Indian Councils Act, even  though it had very wide powers of legislation and within the  scope of  its  authority  could pass laws as  important  as  those passed by the British Parliament (3). It is not present also in  the  Indian  Parliament of the present day  which  is  a creature of the Indian Constitution and has got to  exercise its  legislative powers within the limits laid down  by  the Constitution  itself.  Acting in its ordinary capacity as  a legislative body, the Indian Parliament cannot go beyond the Constitution or touch any of the Constitutional or fundamen- tal  laws, and its acts can always be questioned in a  court of law. Consequences of great constitutional importance flow from this difference and they have a material bearing on the question before us. The contention of the learned  Attorney- General  in  substance is that the power  of  delegation  of legislative  authority  without  any limitation  as  to  its extent is (1) See Coke’s Fourth Institute, p. 36. (2)  See  Dicey’s Law of the Constitution, p. 88  (9th  Edi- tion.) (3)  See  Dicey’s  Law  of  the  Constitution,  p.  99  (9th Edition). 970 implicit in the exercise of the power itself, and in support of  his contention he refers to the unrestricted  rights  of delegation  which are exercised by the  British  Parliament. But  the validity or invalidity of a delegation of  legisla- tive power by the British Parliament is not and cannot be  a constitutional  question at all in the United  Kingdom,  for the  Parliament  being the omnipotent sovereign  is  legally competent  to do anything it likes arid no objection to  the constitutionality  of its acts can be raised in a  court  of law.  Therefore, from the mere fact that the British Parlia- ment exercises unfettered rights of delegation in respect of its legislative powers, the conclusion does not follow  that such  right of delegation is an inseparable adjunct  of  the legislative power itself.  The position simply is this  that in England, no matter, to whichever department of the powers exercisable  by the British Parliament the right of  delega- tion  of legislative authority may be attributed--and  there is  no dispute that all the sovereign powers are  vested  in

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the Parliament-no objection can be taken to the legality  of the exercise of such right.  But in India the position  even at  the  present  day is different. There  being  a  written constitution  which  defines and limits the  rights  of  the legislature,  the question whether the right of  delegation, either  limited or unlimited, is included within, and  forms an integral part of, the right of legislation is a  question which  must  be answered on a proper interpretation  of  the terms  of  the Constitution itself.  We need  not  for  this purpose pay any attention to the American doctrine of  sepa- ration  of powers; we must look to the express  language  of our  own  Constitution  and our approach should  be  to  the essential  principles underlying the process  of  law-making which  our Constitution envisages. According to  the  Indian Constitution,  the power of law-making can be  exercised  by the  Union Parliament or a State Legislature which is to  be constituted in a particular manner and the process of legis- lation has been described in detail in various  articles(1). Powers have been given to the President (1) Vide Articles 107 and 111; 196 to 200, 971 in article 123 and to the Governor of a State under  article 213 to promulgate Ordinances during recess of the respective legislatures.   Specific provisions have also been made  for exercise  of  the  legislative powers by  the  President  on proclamation of emergency and in respect of Part D  territo- ries. Law-making undoubtedly is a task of the highest impor- tance  and  responsibility,  and, as  our  Constitution  has entrusted  this task to particular bodies of persons  chosen in particular ways, and not only does it set up a  machinery for  law-making but regulates the methods by which it is  to be  exercised and makes specific provisions for cases  where departure from the normal procedure has been sanctioned, the prima  facie presumption must be that the intention  of  the Constitution  is that the duty of law-making is to  be  per- formed primarily by the legislative body itself.  The  power of  the  Parliament to confer on the  President  legislative authority  to make laws and also to authorise the  President to  delegate the power so conferred to any  other  authority has been recognised only as an emergency provision in  arti- cle 357 of’ the Constitution. Save and except this, there is no  other  provision  in the Constitution  under  which  the legislature  has been expressly authorised to  delegate  its legislative powers. "It is a well-known rule of construction that if a statute directs that certain acts shall be done in a  specified manner or by certain persons, then  performance in  any  other manner than that specified or  by  any  other persons than those named is impliedly prohibited(1)." It has been observed by Baker in his treatise on "Fundamental Laws" that quite apart from the doctrine of separation of  powers, there are other cogent reasons why legislative power  cannot be  delegated. "Representative government,"   thus  observes the  ]earned  author,(2)  "vests in the  persons  chosen  to exercise  the power of voting taxes and enacting  laws,  the most  important and sacred trust known to civil  government. The representatives of the people are (1)  Vide  Crawford’s Statutory Construction,  p.  334. (2) Baker’s Fundamental Laws, Vol. I, p. 287. 125 972 required  to exercise wise discretion and a sound  judgment, having  due  regard for the purposes and the  needs  of  the executive  and judicial department, the ability of the  tax- payer to respond and the general public welfare. It  follows as a self-evident proposition that      a responsible legis-

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lative  assembly  must exercise its own judgment."   In  the same  strain  are  the observations made by  Cooley  in  his "Constitutional Law ,,(1) that the reason against delegation of  power by the legislature is found in the very  existence of its own powers. "This high prerogative has been entrusted to its own wisdom, judgment and patriotism, and not to those of  other persons, and it will act ultra vires if it  under- takes to delegate the trust instead of executing it."      The  same considerations are applicable with regard  to the  legislative bodies which exercised the powers  of  law- making  at the relevant periods when the Delhi Laws  Act  of 1912  and the Ajmer Merwara Act of 1947 were enacted.  Under the Indian Councils Act, 1861, the power of making laws  and regulations was expressly vested in a distinct body consist- ing  of  the members of the Governor-General’s  Council  and certain  additional  members  who  were  nominated  by   the Governor-General  for a period of two years. The  number  of such  additional members which was originally from 6  to  12 was increased by the subsequent amending Acts and under  the Indian  Councils Act ’of 1909, it was fixed at 60, of  which 27  were  elected and the rest nominated  by  the  Governor- General. It was this legislative body that was empowered  by the Indian Councils Act to legislate for the whole of  Brit- ish  India  and  there were certain  local  legislatures  in addition to this in some of the provinces.      Section 18 of the Indian Councils Act of 1861 empowered the Governor-General to make rules for the conduct of  busi- ness  at meetings of the Council for the purpose  of  making laws;  section 15 prescribed the quorum necessary for  such. meetings  and further provided that the seniormost  ordinary member could preside in the absence of the Governor-General. This was (1) Vide Fourth Edition, p. 138, 973 the normal process of law-making as laid down by the  Indian Councils  Act. Special provisions were made for  exceptional cases  when  the normal procedure could  be  departed  from. Thus  section 23 of the Act of 1861 empowered the  Governor- General  to make ordinances having the force of law in  case of  urgent  necessity; and later on under section 1  of  the Indian  Councils  Act of 1870 the executive  government  was given  the  power to make regulations for certain  parts  of India  to which the provisions of the section were  declared to  be applicable by the Secretary of State.  Besides  these exceptions for which specific provisions were made, there is nothing in the parliamentary Acts passed during this  period to suggest that legislative powers could be exercised by any other  person or authority except the  Legislative  Councils mentioned above.     The Ajmer-Merwara Act was passed by the Dominion  Legis- lature constituted under the Government of India Act,  1935, as  adapted under the Indian Independence Act of  1937.  The provisions of the Constitution Act of 1945 in regard to  the powers and functions of the legislative bodies were  similar to  those that exist under the present Constitution  and  no detailed reference to them is necessary.     The  point for consideration now is that if this is  the correct  position with regard to exercise of powers  by  the legislature,  then  no delegation of  legislative  function, however small it might be, would be permissible at all.  The answer is that delegation of legislative authority could  be permissible  but  only as ancillary to, or in  aid  of,  the exercise of law-making powers by the proper legislature, and not as a means to be used by the latter to relieve itself of its own responsibility or essential duties by devolving  the

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same  on  some other agent or  machinery.  A  constitutional power may be held to imply a power of delegation of authori- ty  which  is necessary to effect its purpose; and  to  this extent delegation of a power may be taken to be implicit  in the  exercise of that power. This is on the principle  "that everything necessary to the exercise of a power 974 is  implied in the grant of the power. Everything  necessary to the effective exercise of legislation must, therefore  be taken  to  be  conferred by  the  Constitution  within  that power."(1).  But it is not open to the legislature to  strip itself  of its essential legislative function and  vest  the same on an extraneous  authority.  The primary or  essential duty of law-making has got to be discharged by the  legisla- ture itself; delegation may be resorted to only as a second- ary or ancillary measure.    Quite apart from the  decisions of American courts, to some of which I will refer presently, the  soundness     of  the doctrine rests, as  I  have  said already,  upon  the  essential principles  involved  in  our written Constitution. The work of law-making should be  done primarily by the authority to which that duty is  entrusted, although  such  authority can employ an  outside  agency  or machinery  for the purpose of enabling it to  discharge  its duties  properly and effectively; but it can on  no  account throw the responsibility which the Constitution imposes upon it  on  the shoulders of an agent or  delegate  and  thereby practically abdicate its own powers.     The learned Attorney-General in support of the  position he took up placed considerable reliance on the  observations of the Judicial Committee in the case of Queen v.  Burah(2), which I have referred to already and which have been repeat- ed almost in identical language  in  more  than  one  subse- quent   pronouncement of the Judicial Committee.  The  Privy Council made those observations for the purpose of  clearing up  a  misconception which prevailed for a time  in  certain quarters  that the Indian or the Colonial Legislatures  were mere  agents  or delegates of the Imperial  Parliament,  and being  in a sense holders of mandates from the latter,  were bound  to execute these mandates personally.   This  concep- tion, the Privy Council pointed out, was wrong.  The  Indian Legislature, or for the matter of that the Colonial  Parlia- ment could, of course, do nothing beyond the limits (1)  Per  O’Connor J. in Baxter v. Ah Way, 8 C.L.R.  626  at 637. (2) 5 IA. 178. 975 prescribed  for them by the British Parliament.  But  acting within these limits they were in no sense agents of  another body  and had plenary powers of legislation as large and  of the  same  nature  as those of the  Parliament  itself.   It should  be  noted  that the majority of the  Judges  of  the Calcutta  High Court in Queen v. Burgh(1) proceeded  on  the view that the impugned provision of Act XXII of 1869 was not a  legislation  but amounted to  delegation  of  legislative power and Mr. Justice Markby in his judgment relied express- ly  upon  the doctrine of agency. This view of  Mr.  Justice Markby  was  held to be wrong by the Privy  Council  in  the observations  mentioned above and as regards the  first  and the  main point the Judicial Committee pointed out that  the majority  of the Judges of the High Court laboured  under  a mistaken  view of the nature and principles of  legislation, for as a matter of fact nothing like delegation of  legisla- tion was attempted in the case at all.  It seems to me  that the  observations relied on by the Attorney-General  do  not show  that in the opinion of the Privy Council the   Indian,

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Legislative  Council  had the same  unrestricted  rights  of delegation  of  legislative powers as are possessed  by  the British  Parliament. If that were so there was no  necessity of  proceeding  any  further and the case  could  have  been disposed  of on the simple point that even if there was  any delegation of legislative powers made by the Indian Legisla- tive Council it was quite within the ambit of its authority. In my opinion, the object of making the observations was  to elucidate  the  character in which  the  Indian  Legislative Council exercised its legislative powers.  It exercised  the powers  in its own right and not as an agent or delegate  of the  British Parliament. If the doctrine of agency is to  be imported, the act of the agent would be regarded as the  act of  the principal, but the legislation passed by the  Indian Legislature  was  the act of the Legislature  itself  acting within  the  ambit of its authority and not of  the  British Parliament,  although  it  derived its  authority  from  the latter.  This view has been clearly 5 I.A.78. 976 expressed  by Rand J. of the Supreme Court of  Canada  while the learned Judge was speaking about the essential character of  the  legislation  passed by the  legislative  bodies  in Canada  (1).  The observations of the learned Judge  are  as follows :- "The  essential  quality  of legislation  enacted  by  these bodies is that it is deemed to be the law of legislatures of Canada  as a self-governing political organization  and  not law  of Imperial Parliament.  It was law within  the  Empire and  law  within the Commonwealth, but it is not law  as  if enacted  at Westminster, though its source or  authority  is derived  from that Parliament."  It should be noted  further that in their judgment in Burah’s case(2) the Privy  Council while  dealing  with the matter of delegated  authority  was fully  alive to the implications of a  written  constitution entrusting the exercise of legislative powers to a  legisla- ture  constituted  and defined in a  particular  manner  and imposing  a disability on such legislature to go beyond  the specific constitutional provisions. Just after stating  that the  Indian  Legislature was in no sense a delegate  of  the Imperial Parliament the Privy Council observed: "The  Gover- nor-General in Council could not by any form of an enactment create  in  India and arm with legislative authority  a  new legislative   power not created and authorised by the  Coun- cils Act."      Almost in the same strain were the observations of  the Judicial  Committee in In re The Initiative  and  Referendum Act,  1919 (3); and while speaking about the powers  of  the Provincial  Legislature under the Canadian Act of 1867  Lord Haldane said :---      "Section 92 of the Act of 1867 entrusts the legislative power in a province to its legislature  and to that legisla- ture  only.  No doubt a body with a power of legislation  on the subjects entrusted to it so ample as that enjoyed by the provincial legislature in Canada could, while preserving its own capacity intact, seek       (1)  See Attorney-General of Nova Scotia v.  Attorney- General of Canada, (1950) 4 D.L.R, 369 at p. 383. (2) 5 I.A. 178. (3) [1919] A.C. 935 at p. 945. 977 the assistance of subordinate agencies as had been done when in  Hodge  v. Queen(1) the legislature of Ontario  was  held entitled to entrust to a Board of Commissioners authority to enact  regulations  relating  to taverns; but  it  does  not

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follow that it can create and endow with its own capacity  a new  legislative  power not created by the Act to  which  it owes its own existence."     It  is not correct to say that what  these  observations contemplate is a total effacement of the legislative body on surrender  of all its powers in favour of another  authority not recognised by the constitution.  Such a thing is  almost outside the- range of practical consideration.  The observa- tions of Lord Haldane quoted above make it quite clear  that his  Lordship had in mind the distinction  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 legisla- tive  function which under the constitution should be  exer- cised  by the legislature itself." The word "abdication"  is somewhat  misleading, but if the word is to be used at  all, it is not necessary in my opinion to constitute legal  abdi- cation  that the legislature should extinguish  itself  com- pletely and efface itself out of the pages of the  constitu- tion  bequeathing all its rights to another authority  which is  to  step into its shoes and succeed to its  rights.  The abdication  contemplated here is the surrender of  essential legislative  authority even in respect of a particular  sub- ject-matter  of legislation in favour of another  person  or authority  which  is not empowered by  the  constitution  to exercise this function.     I will now attempt to set out in some detail the  limits of  permissible  delegation, in the matter of  making  laws, with reference to decided authorities.  For this purpose  it will  be necessary to advert to some of the  more  important cases  on  the,  subject decided by the  highest  courts  of America,  Canada  and Australia. We have also  a  number  of pronouncements  of  the Judicial Committee in  appeals  from India  and the Colonies. I confess that no uniform view  can be gathered from (1) 9 App. Cas. 117. 978 these decisions and none could possibly be expected in  view of  the fact that the pronouncements emanate from Judges  in different  countries  acting under the  influence  of  their respective traditional theories and the weight of opinion of their own courts on the subject. None of these  authorities, however,  are binding on this court and it is not  necessary for  us to make any attempt at reconciliation.  We are  free to accept the view which appears to us to be well-founded on principle and based on sound juridical reasoning.     Broadly speaking, the question of delegated  legislation has  come up for consideration before courts of law  in  two distinct  classes of cases.  One of these classes  comprises what  is known as cases of "conditional legislation,"  where according  to  the generally accepted view, 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 provi- sions are made to operate.  The other class comprises  cases of  delegation proper, where admittedly some portion of  the legislative power has been conferred by the legislative body upon what is described as a subordinate agent or  authority. I  will take up for consideration these two types  of  cases one after the other.     In  a conditional legislation, the law is full and  com- plete when it leaves the legislative chamber, but the opera- tion  of the law is made dependent upon the fulfilment of  a condition,  and what is delegated to an outside body is  the authority to determine, by the exercise of its own judgment,

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whether  or not the condition has been fulfilled.  "The  aim of  all legislation", said O’Connor J. in Baxter v.  Ah  Way (1)  "is to project their minds as far as possible into  the future  and to provide in terms as general as  possible  for all contingencies likely to arise in the application of  the law.  But it is not possible to provide specifically for all cases and therefore legislation from the very earnest times, and particularly in  more (1) 8 C.L.R. 626 at 637, 979 modern  times,  has  taken the form  of  conditional  legis- lation, leaving it to some specified authority to deter mine the  circumstances in which the law shall be applied  or  to what  its  operation shall be extended,  or  the  particular class  of  persons or goods or things to which it  shall  be applied." In spite of the doctrine of separation of  powers, this form of legislation is well recognised in the  legisla- tive  practice of America, and is not considered as  an  en- croachment upon the anti-delegation rule at all.  As  stated in a leading Pennsylvania case (1), "the legislature  cannot delegate  its power to make a law; but it can make a law  to delegate  a power to determine some fact or state of  things upon  which the law makes or intends to make its own  action depend.  To deny this would be to stop the wheels of Govern- ment.   There  are many things upon which  wise  and  useful legislation  must depend, which cannot be known to the  law- making  power and must, therefore, be a subject  of  inquiry and determination outside the halls of legislation."     One  of  the  earliest pronouncements  of  the  Judicial Committee on the subject of conditional legislation is to be found in Queen v. Burah(2).  In that case, as said  already, the Lieutenant-Governor of Bengal was given the authority to extend  all or any of the provisions contained in a  statute to  certain districts at such time he considered  proper  by notification in the official gazette. There was no  legisla- tive act to be performed by the Lieutenant-Governor himself. The Judicial Committee observed in their judgment :-     "The proper legislature has exercised its judgment as to place,  persons, laws, powers, and the result of that  judg- ment has been to legislate conditionally as to those things. The  conditions  being  fulfilled, the  legislation  is  now absolute."     Just four years after this decision was given, the  case of Russell v. The Queen(3) came up before the (1)  Locke’s Appeal, 72 Pa. 491.       (8) 7 App.  Cas.  829 (2) 5 I.A. 178. 126 980 Judicial  Committee. The subject-matter of dispute  in  that case was the Canadian Temperance Act of 1878, the prohibito- ry and penal provisions of which were to be operative in any county  or city, only if upon a vote of the majority of  the electors of that county or city favouring such a course  the Governor-General  by Order in Council declared the  relative part  of  the  Act to be in force. One  of  the  contentions raised before the Judicial Committee was that the  provision was void as amounting to a delegation of legislative author- ity  to  a majority of voters in the city or  county.   This contention  was  negatived  by the Privy  Council,  and  the decision in Queen v. Burah(1) was expressly relied upon.  ’, The short answer to this question," thus observed the  Judi- cial  Committee,  "is  that the Act does  not  delegate  any legislative  powers whatsoever.  It contains  within  itself the whole legislation on the matter with which it deals. The provision  that  certain parts of the Act  shall  come  into

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operation  only  on the petition of a majority  of  electors does not confer authority or power to legislate.  Parliament itself  enacts  the  condition and everything  which  is  to follow  upon  the condition  being  fulfilled.   Conditional legislation of this kind is in many cases convenient and  is certainly  not unusual and the power so to legislate  cannot be  denied to the Parliament of Canada when the  subject  of legislation is within its competency."      The same principle was applied by the Judicial  Commit- tee  in  King  v. Benoari Lal Sarma(2). In  that  case,  the validity  of an emergency ordinance by the  Governor-General of  India  was challenged inter alia on the ground  that  it provided  for  setting  up of special  criminal  courts  for particular  kinds of offences, but the actual setting up  of the courts was left to the Provincial Governments which were authorised  to  set them up at such time and place  as  they considered proper. The Judicial Committee held that "this is not delegated legislation at all. It is merely an example of the not uncommon legislative power by which the local appli- cation  of the provisions of a statute is determined (1) 5 I.A. 178.             (2) 72 I.A. 57. 981 by  the  judgment of a local administrative body as  to  its necessity."     Thus, conditional legislation has all along been treated in judicial pronouncements not to be a species of  delegated legislation at all. It comes under a separate category, and, if  in a particular case all the elements of  a  conditional legislation exist, the question does not arise as to whether in  leaving  the  task of determining the  condition  to  an outside authority, the legislature acted beyond the scope of its powers. I  now come to the other and more important group  of  cases where  admittedly a. portion of the law-making power of  the legislature  is  conferred or bestowed  upon  a  subordinate authority  and  the rules and regulations which  are  to  be framed  by the latter constitute an integral portion of  the statute  itself.   As said already, it is within  powers  of Parliament or any competent legislative body when  legislat- ing  within  its legislative field,  to  confer  subordinate administrative  and legislative powers upon some  other  au- thority.  The question is what are the limits  within  which such  conferment  or bestowing of powers could  be  properly made?  It is conceded by the learned  Attorney-General  that the  legislature cannot totally abdicate its  functions  and invest another authority with all the powers of  legislation which  it  possesses.  Subordinate legislation,  it  is  not disputed, must operate under the control of the  legislature from  which it derives its authority, and on the  continuing operation of which, its capacity to function rests.  As  was said   by   Dixon J. (1) "a subordinate  legislation  cannot have  the independent and unqualified authority which is  an attribute of true legislative power."  It is pointed out  by this learned Judge that several legal consequences flow from this doctrine of subordinate legislation. An offence against subordinate  legislation is regarded as an  offence  against the statute and on the repeal of the statute the regulations automatically  collapse.  So far, the  propositions  cannot, and need not, be disputed. But,     (1)  Vide Victoria Stevedoring and  General  Contracting Company v. Dignan, 46 C.L.R. 73 at 102. 982 according to the learned Attorney-General all that is neces- sary  in  subordinate legislation is  that  the  legislature should  not totally abdicate its powers and that  it  should

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retain its control over the subordinate agency which it  can destroy   later at any time it likes. If this is  proved  to exist in a particular case, then the  character or extent of the  powers delegated to or conferred upon such  subordinate agent is quite immaterial and into that question the  courts have no jurisdiction to enter. This argument seems plausible at  first  sight, but on closer examination, I  find  myself unable  to  accept  it as sound. In my opinion,  it  is  not enough that the legislature retains control over the  subor- dinate  agent and could recall him at any time it likes,  to justify  its  arming the delegate with all  the  legislative powers in regard to a particular subject. Subordinate legis- lation not only connotes the subordinate or dependent  char- acter  of  the agency which is entrusted with the  power  to legislate,  but  also implies the subordinate  or  ancillary character  of  the legislation itself, the making  of  which such agent is entrusted with.  If the legislature hands over its  essential legislative powers to an  outside  authority, that would, in my opinion, amount to a virtual abdication of its powers and such an act would be in excess of the  limits of permissible delegation.      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 details  as it thinks proper and it may delegate the rest of the  legis- lative work to a subordinate authority who will work out the details within the framework of that policy.  "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  determi- nation of facts to which the legislation is to apply"(1). (1) Vide Schechter Poultry Corp. v. United States, 295  U.S. 495 983     The Supreme Court of America has held in more cases than one that the policy of the law-making body and the standards to guide the administrative agency may be laid down in  very broad  and general terms.  It is enough if  the  legislature lays down an intelligible principle which can be implemented by the subordinate authorities for specific cases or classes of  cases(1). The Court has been exceedingly loath  to  find violation of this principle and in fact there are, only  two cases,  viz., Panama Refining Co. v. Ryan(2)  and  Schechter Poultry  Corp. v.U.S.(3) where the federal  legislation  was held  invalid on the ground that the standard laid  down  by the  Congress for guiding administrative discretion was  not sufficiently  definite.  In Panama Refining Co.  v.  Ryan(2) Chief Justice Hughes very clearly stated "that the  Congress manifestly  is  not  permitted to abdicate  or  transfer  to others the essential legislative functions with which it  is invested." "In every case" the learned Chief Justice contin- ued,"  in which the question has been raised the  court  has recognised  that there are limits of delegation which  there is no constitutional authority to transcend......  We  think that section 9(c) goes beyond those limits; as to  transpor- tation  of oil production in excess of state permission  the Congress  has declared no policy, has established no  stand- ard,  has  laid down no rule.  There is no  requirement,  no definition  of  circumstances and conditions  in  which  the transportation is to be allowed or prohibited." Mr.  Justice Cardozo differed from the majority view m this case and held that  a reference express or implied to the policy  of  Con-

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gress  as declared in section 1 was a sufficient  definition of a standard to make the statute valid. "Discretion is  not unconfined and vagrant" thus observed the learned Judge. "It is confined within banks that keep it from overflowing."     It  is  interesting to note that in the  later  case  of Schechter  Poultry  Corporation(3),  where  the  legislative power  was  held to be unconstitutionally delegated  by  the provision of section 3 of the National Industrial (1) Vdie J. IV. Hampton v.U.S., 276 U.S. 394. (2) 293 U.S. 388.         (3) 295 U.S. 495. 184 Recovery  Act of 1933 as no definite standard was set up  or indicated  by  the legislature, Cardozo J. agreed  with  the opinion  of the Court and held that the delegated  power  of legislation which had found expression in that Code was  not canalised  within banks but was    unconfined  and  vagrant. "Here  in  the  case before us" thus  observed  the  learned Judge,  "is  an attempted  delegation not  confined  to  any single  act nor to any class or group of acts identified  or described  by  reference to a standard. This  is  delegation running  riot.  No such plenitude of powers  is  capable  of transfer."  As said above, these are the only two  cases  up till  now  in which the statutes of Congress have  been  de- clared invalid because of  delegation  of  essential  legis- lative powers.  In  the  later cases  the court has  invari- bly  found the standard  established by the Congress  suffi- ciently definite to satisfy the prohibition  against delega- tion of legislative  powers,  and in all  such cases a  most liberal construction has been put upon the enactment of  the legislature(1).      We are not concerned with the actual decisions in these cases.  The decisions are to be valued in so far as they lay down any principles.  The manner of applying the  principles to  the facts of a particular case is not at  all  material. The  decisions referred to above clearly lay down  that  the legislature  cannot  part  with  its  essential  legislative function  which consists in declaring its policy and  making it  a binding rule of’ conduct.  A surrender of this  essen- tial  function  would amount to  abdication  of  legislative powers in the eye of law.  ’the policy may be particularised in as few or as many words as the legislature thinks  proper and it is enough if an intelligent guidance is given to  the subordinate authority.  The Court can interfere if no policy is discernible at all or the delegation is of such an indef- inite  character  as  to amount to abdication,  but  as  the discretion  vests with the legislature in determining wheth- er there is necessity       (1)  See Opp Cotton Mills v. Administrator  of  Wages, 312 U.S. 126; Yakus v. United States, 321 U.S. 414; American Pt.  &  Lt. Co. v. Securities and Exchange  Commission,  329 U.S. 90. 985 for  delegation or not, the exercise of such  discretion  is not  to be disturbed by the court except in clear  cases  of abuse. These I consider to be the fundamental principles and in  respect to the powers of the legislature  the  constitu- tional  position in India approximates more to the  American than  to the English pattern.  There is a  basic  difference between  the Indian and the British Parliament in  this  re- spect. There is no constitutional limitation to restrain the British Parliament from assigning its powers where it  will, but the Indian  Parliament qua legislative body is  lettered by a written constitution and it does not possess the sover- eign  powers  of the British Parliament. The limits  of  the powers  of  delegation in India would therefore have  to  be

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ascertained as a matter of construction from the  provisions of the Constitution itself and as I have said  the right  of delegation  may  be implied in the exercise  of  legislative power  only  to the extent that it is necessary to make  the exercise of the power effective and complete.  It is said by Schwartz  in his work on American Administrative  Law  "that these  doctrines enable the American courts to  ensure  that the  growth of executive power necessitated by the  rise  of the  administrative  process will not be  an  uncontrollable one.  Delegation  of powers must  be  limited  ones--limited either  by  legislative prescription of ends and  means,  or even of details or by limitations upon the area of the power delegated.   The enabling legislation must, in other  words, contain  a framework within which the executive action  must operate"(1).     It  would be worth while mentioning in  this  connection that the report of the Committee on Ministers’ Power  recom- mended something very much similar to this American doctrine as a proper check on delegated legislation. The report  says that "the precise limits of a law-making power which Parlia- ment  intends to confer on a Minister should always  be  ex- pressly  defined  in  clear language by  the  statute  which confers  it, when discretion is conferred its limits  should be defined with (1) Schwartz’s American Administrative Law, p. 22. 986 equal  clearness"(1).  It is true that what in America is  a question  of vires and is subject to scrutiny by courts,  in the  United  Kingdom it is a question of   policy  having  a purely  political significance.  But the  recommendation  of the  Committee  would clearly indicate that the  rules  laid down  and acted upon by the American Judges particularly  in later  years can be supported on perfectly clear  and  sound democratic principles.      I will now advert to the leading Canadian and Australi- an cases on the subject and see how far these decisions lend support  to  the  principles set out above.  Many  of  these Canadian  cases, it may be noted, went up on appeal  to  the Judicial Committee.      I  will  start with the case of Hodge v.  The  Queen(2) which  came up before the Judicial Committee on appeal  from the  decision  of the Court of  Appeal  for Ontario  in  the year  1883.   The facts of the case are  quite  simple.  The appellant  was  convicted  for permitting  and  suffering  a billiard  table  to  be used and a game of  billiard  to  be played  thereon in violation of a resolution of the  License Commissioners who were authorised by the Liquor License  Act of 1877 to enact regulations regulating the use of  taverns, with power to create offences and annex penalties there  to. One of the questions raised was whether the Ontario Legisla- ture  could delegate powers to the License Commissioners  to frame  regulations by which new offences could  be  created. The Privy Council agreed with the High Court in holding that the legislature for Ontario was not in any sense  exercising delegated authority from the Imperial Parliament and it  had full authority to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as  to  subjects  specified in the enactment  and  with  the object of carrying the enactment into operation and  effect. It was observed :--      "Such  an authority is ancillary to  legislation;...... the very full and very elaborate judgment of the (1) Vide Report, page 65.          (2) 9 App, Cas, 117. 987 Court  of  Appeal contains abundance of precedents  for  the

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legislature entrusting a limited discretionary authority  to others  and as many illustrations of its necessity and  con- venience."     It  will be seen that what was delegated by the  Ontario Legislature  to  the License  Commissioners  was-simply  the power to regulate tavern licenses. There was no question  of parting  with substantial legislative powers in  this  case. But  although  the  Privy Council stated  clearly  that  the Ontario  legislature  was  quite  supreme  within   its  own sphere and enjoyed the same authority as the Imperial or the Dominion  Parliament, they described the power delegated  as authority ancillary to legislation and expressly referred to the "abundance of precedents for the legislature  entrusting a  limited discretionary authority to others." There was  no necessity for the Privy Council to use the guarded  language it  used  if in fact the Ontario legislature  had  the  same right  of delegating its powers as the  British  Parliament. It would be pertinent to note that Davey, Q.C., who appeared for  the Crown in support of the judgment appealed  against. did  not contend before the Privy Council that  the  Ontario legislature  had full rights of delegation like the  British Parliament and consequently its acts could not be challenged as  unconstitutional.  His argument was that  in  this  ease there  was no delegation of legislative authority  and  what was delegated was only the power to make by-laws.  By legis- lative  authority the learned Counsel apparently  meant  the essential  legislative  function as distinguished  from  the power to make rules and regulations and the argument implied that the essential legislative powers could not be delegated at all.     The case of Powell v. Appollo Candle Co. (1) is the next case  in point of time which has a bearing on  the  question before  us.  That case came up on appeal from a decision  of the Supreme Court of New South Wales, and the question arose whether section 133 of (1) 10 App. Cas. 232. 127 988 the Customs Regulation Act of 1879of the Colony, was or  was not ultra vires the Colonial legislature. The attack on  the validity  of  the legislation was inter alia on  the  ground that it conferred upon the Government power to levy duty  on certain articles which in the opinion of the Collector  were substituted  for other dutiable articles.  The question  was whether  such power could be validly conferred.   The  Privy Council had no difficulty in holding that the provision  was perfectly  valid and it was quite within the  competence  of the Colonial legislature which was in no sense a delegate of the  Imperial  Parliament, to confer a  discretion  of  this character  on  the executive for the purpose of  making  the statute  properly effective.  The policy of the law as  well as  the  main principles were laid down in the  Act  itself. What  was left to the executive was a power to  enforce  the provisions  of  the  Act more properly  and  effectively  by levying  duties on articles which could be used for  similar purposes as the dutiable articles mentioned in  the statute. The  legislature  itself laid down the standard and  it  was sufficiently definite to guide the executive officers.     I  now  come  to the decision of the  Supreme  Court  of Canada in In re Gray (1), which was decided during the first world  war.  The Dominion War Measures Act, 1914, passed  by the  Dominion Parliament of Canada empowered  the  Governor- General  to  make "such regulations as he may, by reason  of the  existence     of real  or  apprehended  war............ deem  necessary  or  advisable for  the  security,  defence,

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peace, order and welfare of Canada"; and the question  arose whether such transfer of power was permitted by the  British North America Act.  The Supreme Court decided by a  majority of four to two that the Act was valid, though the Judges who adopted  the majority view were not unanimous regarding  the reasons  upon which they purported to base  their  decision. The Chief Justice was of the opinion that there was  nothing in  the Constitutional Act which so far as material  to  the question (1) 57 S.C.R. 150. 989 under  consideration  would  impose any  limitation  on  the authority of the Parliament of Canada to which the  Imperial Parliament was not subject. Anglin J. referred to the  deci- sion  in Hodge v. The Queen(1) (supra) in the course of  his judgment.  He seemed to think that the British North America Act did not contemplate complete abdication of its  legisla- tive powers by the Dominion Parliament, but considered  such abdication to be something so inconceivable that the consti- tutionality  of an attempt to do anything of that  kind  was outside the range of practical consideration. Apparently the learned Judge gave the expression "abdication" a very narrow meaning.   The opinion of Duff J. was much the same, and  he considered  that  there was no  abandonment  of  legislative powers in this case, as the powers granted could at any time be  revoked  and anything done thereunder nullified  by  the Parliament.  Idington  and Brodeur JJ. dissented  from  this majority view.  This decision was followed in the "Reference in the Matter of the Validity of the Regulations in Relation to Chemicals Enacted by the Governor-General of Canada under the  War  Measures Act ", which is to be found  reported  in 1943 S.C.C. 1.      In this case the question raised related to the validi- ty  of  certain regulations made by an Order in  Council  in terms  of the powers conferred upon the Governor in  Council by the War Measures Act and the Department of Munitions  and Supply  Act. It was held that with the, exception  of  para- graph  4 of  the Order in Council the rest of the Order  was not  ultra  vires. It appears from the report that  in  this case it was not disputed before the court that powers  could be delegated by the legislature to  the Governor in  Council under the War Measures Act.  The question raised was whether the Governor in Council could further delegate his powers to subordinate  agencies.   The question was  answered  in  the affirmative, the reason given being that the power of  dele- gation  being absolutely essential in the circumstances  for which the War Measures Act has been designed so as to have a workable Act, the power (1) 9 App. Cas. 117. 990 delegated  must  be deemed to form part of the  powers  con- ferred by Parliament in the Act.     These  are  war time decisions and it is  apparent  that the  doctrine of delegation has been pushed too far  in  the Chemical  Reference  case.  In In re Gray  (1)  the  learned Chief  Justice at the conclusion of his  judgment  expressly stated that the security of the country was the supreme  law against which no other law could prevail.  I agree with  the Attorney-General  that the competency of the  Parliament  to legislate  could not be made dependent upon the fact  as  to whether the law was a war time or a peace time measure.  But on the other hand, it is possible to argue that in a  legis- lation  passed  by  a Parliament in times of  war  when  the liberty  and  security of the country are in  jeopardy,  the only policy which the legislature can possibly formulate  is

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the  policy  of  effectively carrying on the  war  and  this necessarily  implies  vesting of all war operations  in  the hands  of the executive.  There appears to  be  considerable substance  in the observations made by Dixon J.(2) that  "it may  be considered that the exigencies which must  be  dealt with  under the defence powers are so many, so great and  so urgent and so much the proper concern of the executive  that from its very nature the power appears by necessary  intend- ment to authorise delegation otherwise  generally  forbidden by  the  legislature."  It may be mentioned  here  that  the decision in In re Gray(1) was sought t6 be distinguished  in a subsequent Canadian case on the ground that in case     of emergency  it was possible to pass legislation of this  sort by taking recourse to the residuary powers conferred on  the Dominion  Parliament by section 91 of the North America  Act (3).     In  point of time, the case of In re The Initiative  and Referendum  Act(4)  comes immediately after that  of  In  re Gray(1).  The dispute in this case related to an Act (1) 57 S.C.R. 150. (2) Vide Victoria Stevedoring and General Contracting Co. v. Dignan, 46 C.L.R. 73 at p. 99. (3)  Vide-Credit Froncier v. Ross, (1987) 3 D.L.R. 365.  (4) [1919]  A.C. 935.