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TMI Blog1951 (5) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ature enacted the Ajmer-Merwara (Extension of Laws) Act, 1947, section 2 of which conferred power on the Central Government by notification 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 notification; "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 regarded 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 incurred and penalties, forfeitures and punishments have been incurred or imposed under such Acts and instruments; & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 particulars or to what extent ultra vires the Legislature which passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Act ?" Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows:-- ''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 restrictions and modifications as it thinks fit any enactment 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 particular or particulars or to what extent ultra vires the Parliament ?" 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 amendment. of any corresponding law (other than a Central Act) which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the King in Parliament is all powerful. There is no Act which cannot be passed and will not be valid within 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 legislature 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 constitutional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer 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 "constitutional" 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary and not federal. There was no distribution of legislative powers as between the Centre and the different Provinces. Another important factor to be borne in mind is that while the British Parliament was supreme, its executive 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 government. 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 control over the executive. In respect of the Indian Legislature 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 adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 General'sCouncil, The Commander-in-Chiefand 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 Legislature recalling the power given tinder an Act to the executive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is vested in the President acting on the advice of the Ministers. A Parliament is established to make laws and a Supreme Court is established with the powers defined in different articles of the Constitution. The executive, legislative and judicial 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 Parliament 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 Constitution of India. It is not a sovereign body, uncontrolled with unlimited powers. The Constitution of India has conferred on the Indian Parliament powers to make laws in respect of matters sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can De no affirmative 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 Australia 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 lettered by an Act of the British Parliament, nevertheless 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 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 legislative bodies were not agents of the British Parliament. Not being agents or delegates of the British Parliament, the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of conduct. I find that the word "delegation" 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 functions 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( 51. A. 178,). Act XXII of 1869 of the Council of the Governor General of India for making laws and regulations was an Act to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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-General in Council. Their whole operation is directly and immediately under and by virtue of this Act (XXI 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w laws but only to extend Acts which were passed by the Lieut.Governor. or the Governor-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 question framed by him (and quoted earlier in this judgment) was incorrect. (9) It emphasized that the order of the LieutGovernor derived its sanction from the Act of the GovernorGeneral and not because it was an order of the Lieut.-Governor. (10) That in the legislation of the Governor-General in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrangement by which the local application of the provision of a statute is determined 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 (7 App. Cas. 629.): "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. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enactment into operation and effect, or that the Legislature having discharged legislative functions had specified the basic conclusions of fact upon 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, regulations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 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 the legislature and not for the courts of law to decide." (The italics are mine.) As regards the creation of new offences, their Lordships observed 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 inasmuch 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 Act of 1867 entrusts the legislative powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clearly our duty to give effect to their patriotic intentions." In the Chemical Reference case[1943] S.C.R. Canada 1. (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([1918] 57 S.C.R, Canada 150.) 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 regulations framed by the Governor-General in Council to safeguard 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([1923] A.C. 695.), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Proprietary Ltd. v. Dignan(46 Com. L.R. 73.), the question whether delegation of legislative power was according 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 purported to authorise the Governor-General to make regulations which (nothwithstanding anything in any other Act) shall have 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 generally 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((1921) 29 Corn. L.R. 329.) was an authority for the proposition that an authority of subordinate law-making may be invested in the executive. Whatever ,may be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee deny that in fact any delegation 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 Parliament 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 legislative power." He concludes: " But whatever it may be, we should now adhere to the interpretation which results from the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision of the Supreme Court of Australia there are observations 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 subsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 according 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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(72 P.A. 491,), it. is slated: "The proper 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. 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 (293 U.S. 388.), it was observed by Hughes C.J. "The Congress is not permitted to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive power cannot be constitutionally delegated by Congress. Minor premise: It is essential that certain powers be delegated to administrative officers and regulatory commissions. 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 legislative practice in India for over eighty years has recognised 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 schedule 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 practice. A few of the instances can be supported as falling under the description of conditional legislation or subsidiary 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereign character of 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 AttorneyGeneral for a legislature, have been recognised or permitted. 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 observations 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 observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 considerable 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 conferred was only left with the discretion to apply what was Considered suitable, as a whole or in part, 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 parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led arguments advanced by the learned AttorneyGeneral 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 authority, "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 discussion 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 legislature not having the power of delegation is, in my opinion, correct. Under the new Constitution of 1950, the British Parliament, i.e. an outside authority, has no more contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " is used. I do not think this argument is sound. Sub-clause (2) relates to the power 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 legislative 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 wording 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 connection. 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 arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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, Australia 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 specific and detailed lines of the rule of conduct to be laid down may vary according to the circumstances or exigencies, 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the legislature in 1912. Section 7 of the Delhi Laws Act enables the Government (executive) to extend by notification with such restrictions and modifications as it thinks fit, to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India, at the date of such notification, 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 legislature, 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 compared. They permitted the extension of Acts which were or might be made by the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossessing 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 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 legislature 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 clearly 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 restrict or modify the provisions of such Act also. On the second aspect the sanction flows clearly from the notification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government of India Act, 1935. Section 94 of that Act enumerates the Chief Commissioner's Provinces. They include the Provinces 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 include 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 and the Central Legislature was removed, the powers of the Central Legislature were still as those found in the Government of India Act, 1935. The Independence Act therefore made no difference on the question whether the power of delegation was contained in the legislative power. The result is that to the extent to which section 7 of the Delhi Laws Act is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up for consideration of the courts, it was suggested 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 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." Reg. v. Burah (3 App. Cas. 889.). "It appears to their Lordships, however, that the objection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Electors have no legal right of initiating, of sanctioning, or of repealing the legislation of Parliament." (Dicey's "Law of the Constitution", 8th edn., p. 57.) It seems to me therefore that it will not be quite accurate to say that the legislature being an agent of 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 doctrine 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 explanations, a few of which may be quoted as samples:(1) 295 U.S, 495 at 551. " ...... 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 believing that it is, or that the Constitution requires." [Per Holmes J. in Springer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared 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(293 U.S. 388.)] "This is not to say that the three branches are not coordinate 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.( 276 U.S. 394.)] I have quoted these extracts at the risk of encumbering my opinion for 2 reasons:firstly, because they show that notwithstanding the prevalence of the doctrine of separation of powers in America, the rule against delegation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .... the time has passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legislative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character."( Ibid, p. 100.) In England, the doctrine of separation of powers has exercised very little influence on the course of judicial decisions 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. (g141). 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."( Commentaries on the Laws of England, 1765.) Again, Montesquieu, when he enunciated the doctrine of separation of powers, thought that it represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted 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 separation 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 :-- "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 intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; I think that the correct legal position has been comprehensively 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 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." 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 comprehensive formula to define it, but it should be recognized that the rule against abdication does not prohibit the Legislature 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament as is the power of London and NorthWestern Railway Co. to make byelaws. This is undoubtedly an overstatement and is certainly not applicable to the Indian Parliament of today. Our present Parliament, though it may not be as sovereign as the Parliament of Great Britain, is certainly as sovereign as the Congress of the United States of America and the Legislatures of other independent countries having a Federal Constitution. But what is more relevant 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 Parliament, 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 subordination to the British Parliament but is controlled by the Indian Constitution. At this stage, it will be useful to refer to certain cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (7 App, Cas. 829.). In that case, the Canadian Temperance Act, 1878, was challenged on the ground that it was 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 hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Governor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legatus non potest delegare, does not apply to them. In 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 competent to enact, or that the giving of such authority as was entrusted in some cases to subordinate agencies was ancillary 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislature 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 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 necessary 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 agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hdrawn, 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 appointed 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial and Concurrent Legislative Lists. Lists I and II contained a list of subjects on which the Central Legislature and the Provincial Legislature could respectively legislate, and List III contained subjects on which both the Central and the 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 Provincial 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 definition 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espects that matter, notwithstanding that it is one which is not enumerated in the Union List." Under article 357, when there is a failure of constitutional 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 authorise 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 authority 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 powers and the imposition of duties, upon the Union or officers and authorities thereof. In both these articles, the power of delegation is expressly 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 del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision 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." 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 Legislature. 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 (other than a Central Act) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mportant 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 principle nor without precedent, will be clear from what follows:- 1. The facts of the case of Queen v. Burah(5 I.A. 178.) 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 obviously 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 Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tories 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 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 consistently 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 legislative power and discretion than the selection of appropriate laws out of a mass of ready-made enactments. The following observations in a well-known American case, which furnish legal justification for empowering a subordinate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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, 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 shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole or any part of the said Provinces by the Provincial Government concerned." It is obvious that if instead of making similar provisions 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 questioned now. 6. Our attention has been drawn to several Acts containing provisions similar to the Acts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to one place or object to be so adapted as to apply to another. The power of introducing necessary restrictions 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 popularly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stricts Act, 1874, The Burma Laws Act, 1898, The Bombay Prevention of Prostitution 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 country. 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 Valuation Act, and section 67 thereof provided that if any difficulty arose in connection with its application to any exceptional area, or the preparation of the first valuation list for any area, the Minister "may by order remove the difficulty.&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nry 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 bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machinery 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 regulations 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 legislate 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 to consult interests likely to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 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 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([1949-50] F.C.R. 595.) held by a majority that the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 Legislatures all over India for territories within their respective 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 Legislatures 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, I am unable to agree with the majority view. The Attorney-General, appearing on behalf of the President, vigorously attacked the majority view in Jatindra Nath Gupta's case([1949-50] F.C.R. 595.) as being opposed alike to sound constitutional principles and the weight of authority. He cited numerous decisions of the Privy 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 constitution and subject to the limitations prescribed thereby, and that every legislative act done contrary the provisions of the constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(9 App. Cas. 117) decided by the Privy Council in 1883. Upholding the validity of an enactment by a Provincial Legislature in Canada whereby authority was entrusted to a Boar6 of Commissioners to make regulations in the nature of bylaws or municipal regulations for the good government of taverns and thereby to create offences and annex penalties thereto, their Lordships observed as follows: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion entrusting a limited descretionary 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 unmistakably laid down in the passages quoted. The same doctrine was affirmed in Powell v. Apollo Candle Co. Ltd.( 10 App. Cas. 282.), where, after referring to Burah's case (5 I.A. 178. (4)) and Hodge's case(9 App. Cas. 117.), 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 Colonial 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 question 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly 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 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 procedure, 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 English 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained 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 consequent non-delegability of its power by one of the departments 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 resulting complexities of administration forced the realisation on the American Judges of the unavoidable necessity for large-scale delegation of legislative powers to administrative 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(277 U.S. 189.). "This result", says a recent writer on the subject, "is well put in Prof. Cushman's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions. 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(5 I.A. 178.). That was an appeal by the Government from a judgment of the majority of a Full Bench of the Calcutta High Court hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 instrumentality of high officials and public bodies, in whom a large discretion has been vested for that purpose."( Ibid, 140.) It could not therefore be supposed that "the Imperial Parliament 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 legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits 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 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 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." Mr. Chatterjee, on behalf of the opposite party, submitted that the remark regarding the incompetency of the Governor-General in Council to create in India a new legislative power had reference to the subordinate agency or instrumentality to which the legislative authority was to be delegated and thus negatived the legislature's right to delegate. The context, however, makes it clear that their Lordships were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to which legislative power is delegated 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 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. 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 and there was no question of delegating legislative power. Their Lordships were of opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. Its validity must, however, be founded "on the affirmative or the negative words" of the Constitution Act. Another logical consequence of the British theory of delegation 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 passing 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 Parliament 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 chose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 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 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 observation of Lord Selborne in Burah's case(5 I.A. 178) 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 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considerations are, in our opinion, an integral and essential part of the limitation on the extent of delegation of responsibility by the legislature to the executive. In the present case, it is impossible to deny that the Ordinance-making 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 respectively and left the whole matter to the ungu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...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 authority, 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."( 72 I.A. 57, 70-72.) 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" discretionary power affecting the liberty of the subject. In the language 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.( 293 U.S. 388.) Yet, the dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Government of India Act, 1935. The Indian Independence Act, 1947, authorised the removal of certain restrictions on the lawmaking 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other two impugned provisions save for the addition of a clause empowering 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 Constitution, 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 Sarma's case(72 I.A. 57.) on the Government of India Act, 1935. But the line of approach laid down in those cases and in numerous others, to which reference has been made, must be followed, not because of the binding force of those decisions, but because it is indubitabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Burah's case. Even if a mere delegation of power to legislate were not regarded as a law' 'with respect to" one orother 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 prohibits 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional status but could only have the force of a political precept to be acted upon by legislatures in a 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 different, and the courts in this country cannot strike down an Act of Parliament as unconstitutional merely because Parliament decides in a particular instance to entrust its legislative 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 politically undesirable is constitutionally competent. Mr. Chatterjee also attempted to spell out an implied prohibition against delegation on the strength of art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional 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 unquestionably 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. MAHAJAN J.--In exercise of the powers conferred by clause (1) of article 143 of the Constitution the President 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncils 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 Constitution 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 government 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 attained the status of a dominion under the Indian Independence Act, while the last question concerns th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional 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 authority that this kingdom acknowledges upon earth. It hath power to bind every subject in the land, and the dominions thereunto 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." (Vide Allen "Law in the Making " 3rd Edn., p. 367.). 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 delegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, and to give local authorities the right to say whether the provisions of the Act should be operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 delegation of legislative power was implicit within the power of legislation possessed by the legislature. It was not necessary 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 America Act, 1867. In order to appreciate and apprehend the rule to which their Lordships gave approval in the above mentioned case, it seems necessary to state precisely what Queen v. Burgh(1) decided. Act XXII of 1869 of the Council of the Governor-General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as for the time being forms part of British India." 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 territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the Courts of Civil and Criminal Judicature, and specified in the notification the boundaries 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 Lieutenant-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 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islation 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 commencement. "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 Legislature, and indeed of the nature and principles of legislation. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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-Governor...... "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 fulfilled, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epared to assent to the proposition 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 functionaries charged with the performance of public duties have to execute them according to their own judgment and discretion 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 conditional 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 :--- Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 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 Banerjee(1 Tay. & Bell, 390.) 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." 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 GovernorGeneral 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 regulations; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time it is subject to the condition that it cannot abandon formally or virtually its high trust. Hodge v. The Queen(9 App. Cas. 117.) was the next Canadian case decided 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 Toronto 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 prohibited by the Liquor Licence Act for sale of liquor therein. 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. The local legislature had assigned to three officials the power to define offences and impose penalties. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf. 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 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 legislation. It is significant, that their Lordships of the Privy Council never gave their a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 (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 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 unambiguous language laid it down that section 92 entrusts legislative power to its legislature and to that legislature 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to carry on the policy of a statute. Reference was also made to Powell v. Apollo Candle Co. (10 App. Cas. 282.) 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 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 ([1923] A.C. 695.), Co-operative Committee on Japanese Canadians v. Attorney-General for Canada ([1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 controlled 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 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 justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which our attention was drawn is Ref. re Regulations (Chemicals)( [1943] S.C.R. (Canada) 1). This case arose in connection 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(5 I.A. 178.) and Hodge v. The Queen(9 App. Cas. 117). One of the learned Judges observed that the maxim delegatus non potest delegare is a rule of the law of agency and has no application 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the point, while Idington J. was not prepared to subscribe to this view. The other Judges did not consider 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 implication of agency. To do anything outside the scope of their constitution as when the Dominion of Canada established the Province of Manitoba(34 Vict. c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 (6 Law. Edn. 262.), 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. 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 executing its policy. It was asserted that it was a principle universally recognised as vital to the maintenance of the system of government that Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. (293 U.S. a88.) is another leading decision of the Supreme Court on this subject. In Benoari Lal Sarma's ease ([1943] F.C.R. 96.) considerable reliance was placed by Varadachariar J. on this decision for arriving at his conclusion 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 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 flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to administrative officials and boards. Most prominent among the powers thus delegated have been the power to ascertain facts, and the power to promulgate 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 administrative 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 objection that legislative power has been unlawfully delegated. The filling in of mere matters of detail within the policy of, and according to, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 'the result of such alteration, a modified form or variety." 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 delegation of authority to modify an Act of the Congress is unconstitutional is fully borne out by the meaning of the expression "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 principle 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 delegate or on any other ground......... There being no objection 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. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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(1919] A.C. 935.), 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(29 C.LR. 329.) 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. So far as I have been able to see, Roche v. Kronheimer(29 C.L.R. 329.) decided nothing and it was based on the rule of stare decisis Victorian etc. Co. & Meakes v. Dignan(46 C.L.R. 73.) 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 regulations notwithstanding anything else contained in other Acts. The delegation was under the name and style of conferring "regulative power." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taft C.J. in Hampton & Co: v.U.S.( 276 U.S. 394, 406.).. .... 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 transferring any power essentially legislative to another organ or body. In an earlier decision the learned Judge had expressed 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 legislative power to the Parliament so as to restrain it from reposing in the executive an authority essentially legislative 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament of authority 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 authorities 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 automatically authorized it to delegate that power, then there was hardly any necessity for their Lordships of the Privy Council to justify delegation in the cases referred to above on the ground of conditional legislation and to state affirmatively that the cases considered by them were not cases of deleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baxter v. Ah Way(8 C.L.R. 626.) 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 Roche v. Kronheirner(29 C.L.R. 329.) 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(5 I.A. 178,), which has already been discussed 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 authority 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([1945] F.C.R. 161.) 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 Governor-General on the 2nd January, 1942, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial government specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined 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(7 App. Cas. 829.)." This case brings out the extent to which conditional legislation can go, but it is no authority justifying delegation of legislative power authorising an external authority 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 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 legislation though it may legislate as to main principles and leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 speaking, it amounts to enacting a new law. The dictionary meaning 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 legislature than that entrusted with the duty under the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's case([1949] F.C.R. 595.) 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 government 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 Donoughmore 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 fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "the nature and principles of legislation." The question can be posed thus: Why is delegation peculiarly 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 exercise of all power inasmuch as it is necessary to delegate 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 discretion 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 lawmaking ? 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 constituted in the manner indicated in the constitution and to the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islation is the formal utterance by the legislative 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 arbitrator 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 because 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 capacity and has to be exercised in that capacity. I am not able to apprehend why this principle which is well settled in. private law cannot appositely be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 administrative convenience in peace or war time and therefore conferment 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 Constitution or when they trespass on fields demarcated for State legislatures. Obviously, it is implict in the demarcation of legislative fields tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 article154). 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 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 judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Parliament 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 legislate 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 extends. In that article provision has also been made. for delegation of powers by a law made by Parliament. By article 349 the power of the Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application of the doctrine contended for by the learned AttorneyGeneral and it must be held that in the absence of express powers of delegation allowed by the Constitution, the Parliament has no power to delegate its essential legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of India Act, 1935, envisaged a federal constitution for India with a demarcation 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 Varadachariar J. in Benoari Lal Sarrna's case([1943] F.C.R. 96.) that the constitutional 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 essentiality 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 considered necessary to confer such power. The Indian Independence Act by section 6 conferred the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., non-regulation provinces. Another charter would not have been necessary if the Governor-General could arm himself with legislative power by a process of delegation from his own Council. In my opinion, the constitution 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(5 I.A. 178.) did not base their decision on this ground but merely upheld the enactment as intra vires on the ground of conditional legislation. 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 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) :-- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rictions 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 mentioned. The first of these is in sections 68 and 73 of the Inland Steam Vessels Act, 1917. Section authorised modification of an enactment for the purpose of adaptation. This certainly is no instance of the kind of legislation. contained in the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctment 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 applicable. This instance of 1920 bears no relevancy for determining 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 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-Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to extend that legislation 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 legislatures 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. 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." 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 notification and not necessarily any enactment in force in British India at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi. It seems to me that by enacting section 7 the legislature 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) in as much 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 power, but without any power of modifications in favour of the executive, might have been valid, but that is not what was enacted in section 7 of the Delhi Laws Act. Power to extend laws made in the future by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 500 is removed. The exercise 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ? 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 subsection (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, ultra vires the Bihar Provincial Legislature, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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, 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 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 consideration 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 legislative body. One is that the legislature cannot abdicate or surrender its powers altogether or bring into existen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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(Story's Constitution, s. 525, the other, in the slightest degree.)-- "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 that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon. 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 departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his dissenting 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 necessities of Government which cannot foresee today the developments 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 constitutional 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 doctrine 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 Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 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 popularised 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 constituted 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 provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m unable also to accept his contention that in this respect the authority of the Indian Legislature is as plenary 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 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. Edward Coke (See Coke's Fourth Institute, p. 36), "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 uncontrollable 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 kingdoms." The British Parliament can not only legislate on any subject it likes and alter or repeal any law it likes, but being both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delegation of legislative authority may be attributed--and there is no dispute that all the sovereign powers are vested in 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 separation 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 legislation has been described in detail in various articles(1). Powers have been given to the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond and the general public welfare. It follows as a self-evident proposition that a responsible legislative 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 undertakes to delegate the trust instead of executing it." The same considerations are applicable with regard to the legislative bodies which exercised the powers of lawmaking 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 consisting 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 amendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be used by the latter to relieve itself of its own responsibility or essential duties by devolving the same on some other agent or machinery. A constitutional power may be held to imply a power of delegation of authority 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 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 legislature itself; delegation may be resorted to only as a secondary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivy Council the Indian, 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 Legislative 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. expressed by Rand J. of the Supreme Court of Canada while the learned Judge was speaking about the essential character of the legislation passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplate 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 therange of practical consideration. The observations 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 legislative function which under the constitution should be exercised 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 abdication that the legislature should extinguish itself completely and efface itself out of the pages of the constitution 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 subject-matter of legislation in favour of another person or authority whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, modern times, has taken the form of conditional legislation, 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 legislative practice of America, and is not considered as an encroachment 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 Government. There are many things upon which wise and useful legislation must depend, which cannot be known to the lawmaking power and must, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arliament of Canada when the subject of legislation is within its competency." The same principle was applied by the Judicial Committee in King v. Benoari Lal Sarma. 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 application of the provisions of a statute is determined 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l over the subordinate 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 legislation not only connotes the subordinate or dependent character 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 legislative 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive power was held to be unconstitutionally delegated by the provision of section 3 of the National Industrial 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 declared invalid because of delegation of essential legislative powers. In the later cases the court has invaribly found the standard established by the Congress sufficiently definite to satisfy the prohibition against delegation 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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". It would be worth while mentioning in this connection that the report of the Committee on Ministers' Power recommended 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 Parliament intends to confer on a Minister should always be expressly 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 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 late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trusting 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 legislative 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. (10 App. Cas. 232.) 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rica Act did not contemplate complete abdication of its legislative powers by the Dominion Parliament, but considered such abdication to be something so inconceivable that the constitutionality 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 validity 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, excep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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