# [1951] 1 S.C.R. 747

- **Citation:** [1951] 1 S.C.R. 747
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Bench:** Shri Harilal Kania
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1951-1-s-c-r-747-204
- **Pages:** 379

## Headnote

FAZL Au, PATANJALI
SAsTRI, MEHR CHAND MAHAJAN, MuKHEllJEA,
DAs AND BosE JJ.]
Delhi Laws Act, 1912, s. 7-Ajmer~Merwara (Extension of Laws)
Act, 1947, s. 2-Part C States (1.Aws) Act, 1950-Laws giving power
to Government to extend to DClhi and Ajmer-Merwara with such
restrictions and modifications as it thinks fit any law in force in any
other part of India-Law .,mpowering Government to extend to Part C
States any law in force in a Part A State·and to repeal existing laws
-Validity-Rule against delegation
of legislative powers-Scope
and basis of the rule-Applicability to lndia:-Difference between
delegation of legislative power and conditional legislation-Powers of
Indian Legislature under the Indian
Councils
Act, 1861,
the
Government of India Act, 1935, and the Indian Constitution, 1950.
Section 7 of the Delh.i Laws Act. 1912, provided that "The
Provincial Govemment may by notification in. the official gazette
extend, with such restrictions and modifications as
it thinks fit,
to the Province of Delhi, or any part thereof, any enactment
which is in force in any part of British India at the· date of such
notification".
Section 2 of the Ajmer-Merwara (Extension
of
Laws) Act, 1947, provided that "The Central Government may,
by notification in the official gazette, extend to the Province
of
Ajmer-Merwara, with such restrictions and modifications as it
thinks fit, any enactment which is in force in any other Province
at the date of such notification. Section 2 of the P;trt C States
(Laws) Act, 1950, provided that "The Central Government may,
by notification in the official gazette extend
to any Part C
State ........ or to any part of such State, with such restrictions and modifications as it thinks fit, any 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 . . . . which is for the time
. being applicable to that Part C State.
As a result of a decision of
the Federal Court, doubts were entertained with regard to the
va\ictity of laws delegating legislative powers to the executive
Government and the President of India made ·a reference to the
Supreme Court under Art. 143(1) of the Constitution for consider·
ing the question whether the above-mentioned sections or any
provisions thereof were to any extent and if so to what extent
2-!1 S.C India/68
1951
},fay 23
19'1
In re
The Delhi
Laws Act, 1912,
etc.
748
SUPREME COURT REPORTS
[1951]
and in what particulars, ultra vires the
legislatures that
respectively passed these laws, and for reporting to him the opinion
of the Court thereon :
Held, (1) per FAZL ALI, PATANJALt SAsTRI, MuKHERJEA, DAs
and BosE JJ,
(KANIA. C. J., and MAHAJAN J., dissenting).-
Section 7 of the Delhi Laws Act, 1912, and s. 2 of the AjmerMerwara (Extension of Laws) Act, 1947, are wholly intra vircs.
KANIA C. ].-Section 7 of the Delhi Laws Act, 1912, and s. 2 of
the Ajmer-Merwara (Extension of Laws) Act, 1947, are ultra vircs
to the extent power is given to the Government to extend
Acts
other than Acts of the Central Legislature to the Provinces of
Delhi and Ajmer-Merwara respectively inasmuch as to that extent
the Central Legislature has abdicated its functions and delegated
them
to
the executive government,
MAHAJAN J.-Thc abovesaid
sections
arc
ultra
vires
in
the
following
particulars :
(i) inasmuch as they permit the executive to apply to Delhi and
Ajmcr·Mcrwara, laws enacted by legislatures not competent to
make laws for those territories and which these legislatures may make
within their own legislative field, and (ii) inasmuch as they
clothe the executive with co-extensive
legislative
authority
in
the matter of modification of laws made by legislative bodies
in India.
(2) Per FAZL ALI, PATANJAI.I SASTRI, MUKHERJEA, DAs and
BoSE JJ.-The first portion of s. 2 of the Part C States (Laws)
Act, 1950, which empowers the Central Government to extend
to
any Part C State or to "!lY part of

## Text

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a

S.C.R.
SUPREME COURT REPORTS
747
In re THE DELHI LAWS ACT, 1912,
THE AJMER-MERW ARA (EXTENSION OF LAWS)
ACT, 1947
AND
THE PART C STATES (LAWS) ACT, 1950. ·
[SHRI
HARILAL
KANIA, C. J.,
FAZL Au, PATANJALI
SAsTRI, MEHR CHAND MAHAJAN, MuKHEllJEA,
DAs AND BosE JJ.]
Delhi Laws Act, 1912, s. 7-Ajmer~Merwara (Extension of Laws)
Act, 1947, s. 2-Part C States (1.Aws) Act, 1950-Laws giving power
to Government to extend to DClhi and Ajmer-Merwara with such
restrictions and modifications as it thinks fit any law in force in any
other part of India-Law .,mpowering Government to extend to Part C
States any law in force in a Part A State·and to repeal existing laws
-Validity-Rule against delegation
of legislative powers-Scope
and basis of the rule-Applicability to lndia:-Difference between
delegation of legislative power and conditional legislation-Powers of
Indian Legislature under the Indian
Councils
Act, 1861,
the
Government of India Act, 1935, and the Indian Constitution, 1950.
Section 7 of the Delh.i Laws Act. 1912, provided that "The
Provincial Govemment may by notification in. the official gazette
extend, with such restrictions and modifications as
it thinks fit,
to the Province of Delhi, or any part thereof, any enactment
which is in force in any part of British India at the· date of such
notification".
Section 2 of the Ajmer-Merwara (Extension
of
Laws) Act, 1947, provided that "The Central Government may,
by notification in the official gazette, extend to the Province
of
Ajmer-Merwara, with such restrictions and modifications as it
thinks fit, any enactment which is in force in any other Province
at the date of such notification. Section 2 of the P;trt C States
(Laws) Act, 1950, provided that "The Central Government may,
by notification in the official gazette extend
to any Part C
State ........ or to any part of such State, with such restrictions and modifications as it thinks fit, any 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 . . . . which is for the time
. being applicable to that Part C State.
As a result of a decision of
the Federal Court, doubts were entertained with regard to the
va\ictity of laws delegating legislative powers to the executive
Government and the President of India made ·a reference to the
Supreme Court under Art. 143(1) of the Constitution for consider·
ing the question whether the above-mentioned sections or any
provisions thereof were to any extent and if so to what extent
2-!1 S.C India/68
1951
},fay 23
19'1
In re
The Delhi
Laws Act, 1912,
etc.
748
SUPREME COURT REPORTS
[1951]
and in what particulars, ultra vires the
legislatures that
respectively passed these laws, and for reporting to him the opinion
of the Court thereon :
Held, (1) per FAZL ALI, PATANJALt SAsTRI, MuKHERJEA, DAs
and BosE JJ,
(KANIA. C. J., and MAHAJAN J., dissenting).-
Section 7 of the Delhi Laws Act, 1912, and s. 2 of the AjmerMerwara (Extension of Laws) Act, 1947, are wholly intra vircs.
KANIA C. ].-Section 7 of the Delhi Laws Act, 1912, and s. 2 of
the Ajmer-Merwara (Extension of Laws) Act, 1947, are ultra vircs
to the extent power is given to the Government to extend
Acts
other than Acts of the Central Legislature to the Provinces of
Delhi and Ajmer-Merwara respectively inasmuch as to that extent
the Central Legislature has abdicated its functions and delegated
them
to
the executive government,
MAHAJAN J.-Thc abovesaid
sections
arc
ultra
vires
in
the
following
particulars :
(i) inasmuch as they permit the executive to apply to Delhi and
Ajmcr·Mcrwara, laws enacted by legislatures not competent to
make laws for those territories and which these legislatures may make
within their own legislative field, and (ii) inasmuch as they
clothe the executive with co-extensive
legislative
authority
in
the matter of modification of laws made by legislative bodies
in India.
(2) Per FAZL ALI, PATANJAI.I SASTRI, MUKHERJEA, DAs and
BoSE JJ.-The first portion of s. 2 of the Part C States (Laws)
Act, 1950, which empowers the Central Government to extend
to
any Part C State or to "!lY part of such State with such modifications and restrictions as it thinks fit any enactment which is
in force in a Part A State, is
intra vires.
Pt+
KANIA C. J.
MAHAJAN, MVKHERJEA and BosE JJ.-The latter portion of the
said section which empowers the Central
Government to make
provision in any enactment extended to a Part C S~tes, for repeal
or amendment of any law (other than a Central Act) which is
for the time being applicable to that Part C States,
is ultra
llirn. Per FAZL Au, PATANJALI SASTRI and DAS JJ.-The latter
portion of s. 2 of the Part C States (Laws) Act, 1950, is also
intra virt:s . .
KANIA C. J.-To the extent that s. 2 of the Part C States
(Laws) Act, 1950, empowers the Central Government to extend
laws passed by any Legislature of a Part A State to a Part C
State it is ultra v;res.
MAHAJAN ].-Section 2 of the Part C States (Laws) Act, 1950,
is ultra vires in so far as it empowers the Central Government (i)
to extend to a Part C State laws passed by a legislature which is
not competent to make laws for that Part C State and (ii) to
make modifications of laws made by the legislatures of India and
(iii) to repeal or amend laws already applicable to that Part C
State.
S.C.R.
SUPREME COURT REPORTS
749
KANIA C. J.-(i) The essentials of a legislative function arc
the determination of the legislative policy and its formulation as
a rule of conduct and these essentials arc the characteristics of a
legislature by itself.
Those essentials are preserved · when
the
legislature specifies the basic conclusions
of
fact
upon
the
ascertainment of which from relevant . data by a designated administrative agency
it
ordains that its statutory command is to be
effective. The legislature having thus made its laws, every detail
for working it out and for carrying the enactment into operation
and effect may be done by the legislature or may be left to another
subordinate agency or to some executive :officer. While this is
. also sometimes described as delegation of legislative·
powers.
In essence it is different from delegation of legislative powe~s as
t_his docs not involve the delegation of the power to determine
the legislative policy and formulation of the same as a rule of
conduct.
While the so called delegation which empowers
the
making of rules and regulations has been recognised as ancillary
to. legislative power, the Indian Legislature had no power prior
to 1935 to delegate legislative power in its true sense.. Apart
from the sovereign character of the British Parliament
whose
powers arc absolute and unlimited, a general power in the legislature to delegate legislative powers is not
recognised in
any
· sta!e. The powers of the Indian Legislature under the Constitution Acts of 1935 and 1950 a,re not different in this respect (ii) An
"abdication" of its powers by a legislature need not necessarily
.amount to complete effacement of itself. It may be partial.
If
full powers to do everything that the legislature can do nre conferred on a subordinate authority, although _the legislature retains
thb power to control the action of the subOrdinate authority by
recalling such power or repealing the Acts passed by the subordinate authority, there is an abdication or
effacement of the
legislature conferring such power.
FAZL Au J.-(i) The legislature must formally discharge
its
p~imary legislative function itself and not through others. (ii)
once 1t has been established that it has sovereign powers within
a certain sphere, it is free to l.:gislatc within that sphere in any
way which appears to it to be the best way to give effect to its
intention and policy in making a particular law and it may utilise
any outside agency to any extent it finds necessary for doing
things, which it is unable to do itself . or finds it inconvenient to
<lo. (iii) It cannot however abdicate its 1 cgislative functions and
therefore, while entrusting power to an outside agency, it must
sec that such agency acts as a subordinate authority and does
not become a parallel legislature. (iv) As the courts of India arc
not c·ornmittcci to the doctrine of separation of powers and the
judicial interpretation it has received in America; there arc only
two main checks in this country on the power of the legislature
to delegate, these being its good sense and the principle that it
should not cross the line beyond whlcli delegation amounts to
1951
In re
The Delhi
Laws Act, 1912,
etc.
1951
In,.
rhe Dtlhl
Laws Act, 1912,
etc.
750
SUPREME COURT REPORTS
[1951]
'abdication and sclf.dfacement.'
( v)
The power
to introduce
necessary restrictions and modifications is incidental to the power
to adapt or apply the law. The modifications contemplated arc
such as can be made within the framework of the Act and no
such as to affect its identity or structure or the essential purpose
to be served by it.
PATANJALI SASTIU J.-(i) It is now estal\lishcd beyond doubt
that the Indian Legislature, when acting within the limits cir·
cumscribiqg its Jcgislative power, has and was intended to have
plenary powers of legislation as large and of the same nature as
those of the British Parliament itself and no constitutional limitation on the delegation of legislative power to a subordinate unit
is to be found in the Indian Councils Act, 1861, or the Govern·
ment of India Act, 1935, or the Constitution pf 1950.
It is therefore as competent for the Indian Legislature to make a law delegating legislative
power,
both quantitatively and qualitatively,
as it is for the British Parliament to do so, provided it acts within
the circumscribed limits (ii) Delegation of legislative authority
is ·different from the creation of a new legislative power. In the
former, the delegating body docs not efface itself but retains its
legislative power intact and merely elects to exercise · such
power
through an agency or instrumentality of its choice.
In the latter,
there is no delegation of power to subordinate units but a grant
of power to an independent and <»ordinate body to make laws
operative of their own force.
For the first, no express. provision
authorising delegation is required. In the absence of a constitutfonal inbibitation, delegation of legislative power, however extensive, could be made so long as the delegating body
retains its
own legislative power intact.
For the second,. however, a positive coabling provision in the constitutional document
is
re~
quired.
(iii) The maxim dekgatus non protest dekgare is not part
of the constitutional law of Indian and has no more force than a
political precept to be· acted upon by legislatures .in the discharge
of their function of making laws, and the courts 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 c.onfidencc or, in
other
words, to exercise such power through its appointed instrumentality,
however
repugnant such entrustmcnt may
be
to the
democratic process.
What
may
be
reg:irdcd
as
politically
undesirable is constitutionally c:ompctcnt. (iv) however
wide
a
meaning may be attributed to the expression "restrictions
and
modification," it would not affect the constitutionality nf the
delegating statute.
MAHAJAN J.-(i) It is a set.tied maxim of c:Onstitutional
law
that a legislative body cannot delegate its power.
Not only the
nature of the legislative power but the very existence of representative gov..-nment depends on the doctrine
that. legislative
powers
cannot
be
transferred. The legislature cannot:
substitute the-
S.C.R.
SUPREME COURT REPORTS
751
judgment, wisdom, and patriotism of any other body, for those to
which alone the people have been seen fit to confide this sovereign
trust. The view that unless expressly prohibited a legislature has
.a general power to delegate its legislative functions to a subordinate authority is not supported by authority or principle.
The
correct v.iew is that unless the power to delegate
is
expressly
given by the constitution, a legislature cannot delegate its essential legislative functions.
As the Indian Constitution does
not
give such power to the legislature, it has no power
to
delegate
"Cssential legislative functions to any other body. (ii) Abdication
by a legislative body need not necessarily amount to complete
effacement.
There is an abdication when in respect of a subject
in the Legislative List that body says in effect that it will
not
legislate but would leave it to another to legislate on it.
MuKHERJEA J.-As regards
constitutionality
of
the delegation
-0f legislative powers, the Indian Legislature cannot be in the
same position as the omnipotent British Parliament and how far
delegation is permissible has to be ascertained in India as a matter
-0f construction from the express provisions of the Indian
Con~ti
tution. It cannot be said that an unlimited right of delegation
is inherent in the legislative power itself. This is not warranted
by the provisions of the constitution and the legitimacy of delegation depends entirely upon its being used
as
an
ancillary
measure which the legislature considers to be necessary for the
purpose of exercising its legislative powers effectively and com- .
pletely.
The legislature must retain in its owh hands the essential legislative functions which consist in declaring the legislative
policy and laying down the standard which is to be enacted into
a rule of law and what can be delegated is the task of subordinate
legislation which by its very nature is ancillary to the statute
which delegates the power to make it.
Provided
the legislative
policy is enunciated with sufficient clearness or a standard is laid
down, the courts should not interfere with the discretion
that
undoubtedly rests with the legislature itself
in
determining the
extent of delegation necessary in a particular case.
DAs J.-(i) The Principle
of
non-delegation
of
legislative
powers founded either on the doctrine of separation of powers or
the theory of agency has no application to the British Parliament or the legislature constituted by an Act of the British
Parliament; (ii) in the even present complexity of comlition is
with which governments have tO deal, the power of delegation is
necessary for, and ancillary to, the exercise of legislative power
and is a component part of it; (iii) the operation of the act performed under delegated power is directly and immediately under
.and by virtue of the law by which the power was delegated and
its efficacy is referable _to that antecedent law ; (iv) if what the
legislature does is legislation within the general scope of the a ffirmative words which give the power and if it violates no express
1951
Jn re
The Deihl
Laws Act, 1912,
etc.
1951
In re
The Delhi
Law1 Act, 1912
etc.
752
SUPREME COURT REPORTS
[1951)
condition or restriction by which that power is limited, then it is
not for the court to enquire
further or enlarge constructively
those conditior.is or restrictions; { v) while the legislature is acting
within its prescribed sphere there is, except as
hereinafter
stated,.
no degree of, or limit to, its power of delegation of its legislative
power, it being for the legislature to determine how ·far it should
seek the aid of subordinate agencies and how long it shall continue
them, and it is not for the court to prescribe any limit to the
legislature's power of delegation ; (vi} the power of delegation
is
however subject to the qualification that the legislature may not
abdicate or efface itself, that is, it may
not,
without preserving
its own capacity intact, create and endow with its
own
capacity
a new legislative power not created or authorised by the Act to
which it owes its own existence. {vii) The impungcd laws may
also be supported as instances
of conditional legislation
within
the meaning of the decision in Queen v. Burah.
Bo SE J .-Tlie Indian Parliament can legislate along the lines
of Queen v. Burah, that is to say, .it can leave to another person or body the introduction or application of laws which arc, or
may be, jn existence at that time in any part of India · which is
subject to the legislative control of Parliament, whether those
laws are enacted by Parliament or by a State Lagislature set up
by the constitution.
But delegation of this kind cannot proceed
beyond that; it cannot extend to the repealing or altering in
essential particulars laws which arc already in force in the area
in qU:estion.
SPECIAL Jm1sD1CT10N
Special Reference No. 1 of
1951.
The circumstances which led to this Special
Reference by the President and the questions referred
appear fi om the full text of the reference dated 7th
January, 1951, which is reproduced below :-
"W HEREAs
in
the year
1812
the
Governor-General
of
India in Council acting in
his legislative
capacity
enacted
the
Delhi
Laws
Act,
1812,
section
7
of which
conferred
power on the Central Government by
notification
to
extend
to the Province of Delhi (that is to say,• the present State
of
Delhi)
or
any
part thereof,
with such
restrictions and
modifications at it thought fit, any enactment which was in
force in any part of British India at the date
of
such
notification ;
"AND
WHEREAS in 1947 the Dominion Legislature enacted the
Ajmer-Merwara
(Extension
of
Laws}
Act,
1947,
section 2 of which conferred power on the Central Government by
notification to extend to the Province of
AjmerMerwara (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;
S.C.R.
SUPREME COURT REPORTS
753
"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 arc 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 ;
"AND
WHEllEAs Parliament with the object inter .alia of
making a
uniform
provision for extension of laws with regard
to all
Part C States except Coorg and the Andaman and
Nicobar Islands enacted the Part C States (Laws) Act, 1950,
section 2 of which comes power on the Central
Government
by
notification to extend to any Part C State (other than
Coorg and the Andaman and Nicobar Islands) or to any part
of such State, with such restrictions and modifications as it
thinks fit, any enactment which is in force in a Part A State
at the date of the notification and also confers the power on
the ·Central Government to make provision in any enactment
so extended for the repeal
or amendment of
any
corresponding law (other than a Central Act) which is for the time
being applicable to that Patt C State ;
"AND
WHEREAS section 4 of the Part C States
(Laws)
Act,
1950 has repealed section 7 of the Delhi Laws
Act,
1912,
and
the Ajmer-Merwara
(Extension .of Laws)
Act,
1947, but the effect of the provisos to the said section is,
notwithstanding the said repeals, to continue,
inter alia
in
force
the Acts extended to the Provinces
of
Delhi
and
Ajmer-Mcrwara or the States of Delhi and Ajmer under the
provisions repealed by the said section ;
"AND
WHEREAS
notifications
have
been
issued
by
the
Central
Government
from
time
to
time
under
section
2
of the
Part
C
States
(Laws)
Act,
1950,
extending Acts
in force in Part A States to various Part C States sometimes.
with, and sometimes without, restrictions and modifications ;
"AND
WHEREAS
the Federal Court of India in /atindra
Nath Gupta v. Province of Bihar( 1)
held by a majority that
( 1) (1949) F.C.R. S9S.
1951
In re
The Delhi
Laws Act, 1912
etc.
19$1
In re
T•e Delhi
Law1Act,1912,
etc·
754
SUPREME COURT REPORTS
[1951]
the proviso to sub-section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra .vires of the
Bihar Legislature inter alia
on
the
ground that the
said
proviso
conferred
power
on
the
Provincial
Government
to.
modify
an
Act
of
the
Provincial
Legislature
and
thus
amounted to a delegation of legislative power ;
"AND WHEREAS as a result of the said decision of the
Federal Court,
doubts have
arisen
regarding the validity of
Section 7 of the Delhi Laws
Act,
1912,
Section
2 of the
Ajmer-Marwara
(Extension of Laws)
Act,
1947, and
Section 2 of the Part C States (Laws) Act, 1950,
and
of the
Acts extended to the Provinces of Delhi and Ajmer-Merwara
.and
various Part C States under the said
sections
~espccti·
vely, and
of
the orders and other instruments issued under
the Acts so extended :
"AND
WHEREAS the validity of Section 7 of the Delhi Laws
Act, 1912, and section
2
of the
Ajmer-Merwara
(Extension
of Laws) Act, 1947, and of the Acts extended by virtue of
the powers conferred by the said section 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 ;
0 AND
WHEREAS, in view of
what·. is
hcrcinbcforc
stated,
it appears to me that the following qliestions
of
law have
arisen and arc 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
THEREPoJtE, in exercise of the powers conferred upon me
by clause powers (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 Legislatore which
passed the said Act ?
"(2) Was the Ajmer-Mcrwara (Extension
1947, or any of the provisions thereof
and
cular or particulars . or to what extent ultra
lature which passed the said Act?
of Laws)
in
what
vir~s the
Act,
partiLcgis-
"(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
~ires the Parliament?"
S.C.R.
SUPREME COURT REPORTS
755
Arguments were heard on the 9th. 10th, 11th, 12th,
16th, 17th, 18th, 19th, 20th, 23rd, 24th, 25th, 26th,
27th and 30th days of April 1951.
M. C. Setalvad, Attorney-General for India ( G. N.
Joshi, with him) for the President of India.
C. K. Daphtary, Advocate-General of Bombay ( G. N.
Joshi, with him) for the State of Bombay.
R. Ganapathy Iyer, for the State of Madras.
M. L. Saxena, for the State of Uttar Pradesh.
A. R. Somanatha Iyer, Advocate-General of Mysore
(R. Ganapathy Iyer, with him) for the State of
Mysore.
P. S. Safeer, for Captain Deep Chand.
N. S. Bindra, for Pt. Amarnath Bharadwaj.
M. M. Gharak_han, for the Ajmer-Electric Supply
Co. Ltd.
N. C. Chauerjee, (G. C. Mathur, Basant Chandra
Ghose, and Tilak. Raj Bhasin, with him), for the
Maiden's Hotel.
/essaram Banasingh, for Runglal Nasirabad.
Jyoti Sarup Gupta and K. B. Asthana, for the
<.,
Municipal Committee, Ajmer.
--.,/
Din Dayal Kapur, for Shri Munshilal and two
others.
1951, May 23. The following judgments were delivered.
19S1
In re
The Delhi
Laws Act, 1912,
etc.
KANIA C. J .-This is a reference made by the PresiKania C. J.
dent of Incha under article
143 of the Constitution
asking the Court's opinion on the three questions submitted for its consideration and report.
The three
questions are as follows :-
-
" ( 1) Was section 7 of the Delhi Laws Act, 1912,
·Or any of the provisions thereof and in wliat particular
or particulars or to what extent ultra vires the Legislature which passed the said Act ?".
Section 7 of the Delhi Laws Act, mentioned in the
question, runs as follows :-
1951
In re
The Delhi
Laws Act, 1912,
etc.
Kania C. J.
756
SUPREME COURT REPORTS
(19511
"The Provincial Government may, by notification
in the official gazette, extend with such restnct10ns
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."
"(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?"
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 t1tres
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 restricrions and modifications as it thinks fit, any enactment which is in force iii a part A State at the date of
the notification and provision may be made in any
enactment so extended for the repeal or amendment of
any corresponding law (other than a Central Act) which
is for the time being applfcable to that Part C State."
The three sectioqs referred to in the three questions
are all in respect of what is described as· the delegation
of legislative power and the three particular Acts are
selected to raise the question in respect of the three
main stages in the constitutional development of India.
S.C.R.
SUPREME COURT REPORTS
757
The first covers the legislative powers of the Indian
Legislature during the period prior to the Government
of India Act, 1915.
The second is in respect of its
legislative power after the Government of India Act,
1935, as amended by the Indian Independence Act of
1947.
The last is in respect of the power of the Indian
Parliament under the present Constitution of 1950.
It is therefore necessary to have an idea of the legislative powers of the Indian Legislature during those
r.h.ree periods.
Without going into unnecessary details,
it will not be out of place to know the historical background.
The East India Company first started its
operations as a trading company in India and gradually
acquired political influence.
The Crown in England
became the legislative authority in respect of areas
which had come under the, control of the East India
Company.
The Indian Councils Act of 1861, section 22,
gave power to the Governor-General in Council, with
additional nominated members, to make laws. · The
constitutional position therefore was
that the
British
Parliament was the sovereign body which passed the
Indian Councils Act.
It gave the Governor-General in
Council in his legislative capacity powers to make
laws over the territories in India under the governance
of the Crown.
Under the English Constitution the
British Parl1ament with its legislative authority in the
King and the two Houses of Parliament is supreme
and its sovereignty cannot be challenged anywhere.
It has no written Charter to define or limit its power
and authority.
Its powers are a result of convention
but are now recognised as completely absolute, uncontrolled and unfettered. Sir Cecil Carr in h'is book on
English
Administrative Law at page 15 observes :
"A more basic difference between the Constitutions of
the United States and Britain is the notorious fact that
Britain has to written Constitution, no fundamental
statute which serves as a touchstone for all other legislation and which cannot be altered save by some
specially solemn and dilatory process. In Britain the
King in Parliament is all powerful.
There is no Act
which cannot be passed and will not be valid within
19Sl
In re
The Delhi
Laws,Act, 1912,
etc.
Kania C. J.
1951
In re
The Delhi
Laws Act, 1912,
etc.
Ka11ia C. J.
758
SUPREME COURT REPORTS
[1951]
the ordinary limits of judicial interpretation ......... .
Even Magna Carta 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
1s
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 in as States
whose Constitutions are drawn up in a fixed and rigid
from and contained in written documents for the
existence of a judicial body to determine whether any
particular legislative Act is within the constitu6onal
powers of Parliament or not and laws affecting the
Constitution itself may be enacted with the same ease
and subject to the sanie procedure as ordinary laws.
In England, when occasions of conferment of powers
on subordinate bodies became frequent and assumed
larger scope, questions about the advisability of that
procedure were raised and a Committee on the Minister's
Powers, what is
generally described as the
Donoughmore Committee was appointed.
The Committee recommended that certain cautions should be
observed by the Parliament in the matter of conferment
of such powers on subordinate bodies.
This is natural
because of the well-recognised doctrine of the English
Constitution that Parliament is supreme and absolute
and no legislation can control its powers.
Such a legislative body which is supreme has thus
certain principal characteristics. It is improper to use
the word "constitutional" in respect of laws passed
by such a sovereign body.
The question of constitutionality can arise only if there is some touchstone by
·which the question could be decided.
In respect of a
sovereign body like the British Parliament there is no
S.C.R~
SUPREME COURT REPORTS
759
touchstone.
They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws.
Such laws are changed by the
same body with the same ease as any other law.
What
follows from this is that no court or authority has any
right to pronounce that any
Act of Parliament is
unconstitutional.
In Dicey's Law of the Constitution,
9th Edition, in considering the Constitution of France,
it was observed · that the supreme
kgislative power
under the Republic was not vested in the ordinary
Parliament of two Chambers, but in a National Assembly or Congress composed of the Chamber of Deputies
and the Senate sitting together.
The Constitutions of
France which in this respect were similar to those 0f
Continental polities exhibited as compared with the
expansiveness or
flexibility of
English institutions
that characteristic which was described by the author
as rigid.
A flexible constitution was one under which
every law of every description can legally be changed
with the same ease and in the same manner by one
and the same body.
The flexibility of the British
Constitution consists in the right of the Crown and
the two Houses to modify or repeal any law whatever.
They can modify or repeal in the same manner in
wMch they can pass an Act enabling a company to
make a new railway from Oxford to London.
Therefore, in England laws are called constitutional because
they refer to subjects proposed to affect the fundamental institutions of the State and not because they
are legally more sacred or difficult to change than other
laws.
Under the circumstances
the
term
"constitutional law or enactment" is rarely applied to any
English statute to give a definite description to its
character.
Under a
rigid
constitution,
the term
"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 cOJJrts are invested with powers to
determine whether a particular legislation is permitted
or not
by the constitution.
Such a question can
1951
& re
The Detlli
Laws Jfcr, 1912,
etc.
Kania C. J.
1951
In re
The Delhi
Law1 Act, 1912
etc.
Kama c.·1.
760
SUPREME COURT REPORTS
[1951]
never arise in respect of an enactment of the British
Parliament.
As against this, the Governor-General in Council
with legislative powers established under the
Indian
Councils Act stood in a different position. Its charter
was the Indian Councils Act.
Its powers were there
necessarily defined and limited.
That power, again,
at any time could be withdrawn, altered and expanded
or further curtailed.
Moreover,
as the powers were
conferred by an Act of the British Parliament, the
question whether the act!on of the Governor-General
in Council in his legislative capacity was within or
without its legislative power was always capable of
being raised and decided by a court of law.
In Dicey's
Law of the Constitution, 9th Edition, the author has
distinguished the position of a sovereign legislature
and a subordinate law-making body.
The distinction
is drawn from the fact that the subordinate legislatures have a limited power of making laws.
At page
99, he has specifically considered the position of the
legislative Council of British India prior to 1915 and
stated as follows :-"Laws are made for British India
by a Legislative Council having very wide powers of
Legislation.
This Council, or, as it is technically
expressed, 'the Governor-General in Council', can pass
laws as important as any Acts passed
by the British
Parliament.
But the authority of the Council· in the
way of law-making is
as completely subordinate to,
and as much dependent upon. Acts of Parliament as is
the power of the London and North Western Railway
Company to make byelaws .......... Now observe, that
under these Acts the Indian Council is in the strictest
sense a non-sovereign legislative body, and this independently of the fact the laws or regulations made
by the Governor-General in Council can be annulled or
disallowed by the Crown ; and note that the position
of the Council exhibits all the marks or notes of legislative subordination.
(1) The Council is bound by a
large number of rules which cannot be changed by the
Indian legislative body itself and which can be changed
by the superior power of the Imperial Parliament.
S.C.R.
SUPREME COURT REPORTS
761
(2) The Acts themselves, from which the Council derives
its authority, .cannot be changed by the Council and
...... they stand in marked contrast with the laws or
regulations which the Council is empowered to make.
These fundamental rules contain, it must be added,
a number of specific restrictions on the subjects with
regard to which the
Council may legislate .... (3) The
courts in India ........ may, when the
occasion arises,
pronounce
upon the validity or
constitutionality of
laws made by the Indian Council."
It is therefore
clear that the Indian Legislature in 1861 and up to
1915 was a subordinate legislature and not a sovereign
legislature.
At this stage it may again be noticed that the
Government was unitary 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 Parl'iament 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 expan-
~ion 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 advisory bodies without any semblance of power.
The executive Government of India was not responsible
to the Indian Legislature and the composition of the
Indian Legislature was such ·that the executive officers
1951
In ~e
The Delhi
Laws Act, 1912,
etc.
Kania C. J.
1951
lnre
T1rt Delhi
Lows Act, 1912,
etc.
KJmkt C. J.
762
SUPREME COURT REPORTS
[1951)
together with the nominated members constituted the
majority in the Legislature. The result was that the
Legislative Council was practically a creature of the
executive Government of India and its functions were
practically limited to registering the decrees of the
executive government.
It would not be wrong, according to Mr. Cowell in his lecntre on "Courts and
Legislative Authorities in India," to describe the laws
made in the Legislative Councils as in reality the order
of Government. Every Bill passed by the GovernorGeneral' s Council required his assent to become an Act.
The
Indian Councils Act of 1892 empowered the
Governor-General in Council, with the approval of the ·
Secretary of State in Council, to make regulations as to
the conditions under which nomination of the additional members should be made. The word 'election'
was carefully avoided.
The existence of a strong
official block in the Councils was ·the important feature·
of the Act.
As noticed by a writer on Indian Constitution, the Government maiittained a tight and close
control over the conduct of official members in the
Legislature and they were not allowed to vote as
they pleased. They were not expected to ask questions
or move resolutions or (In some Councils) . to intervene
in debate without Government's approval.
Their main
function was to vote-to vote with the Government.
However eloquent the non-official speakers might talk
and however reasonable and weighty their arguments
might be, when the time for voting came the silent
oflicial
flanks stepped in and
decided the matter
against them. All these factors contnbuted to the unreality of the · proceedings in the · Council because the
number of elected members was small and the issue
was often known beforehand.
Speaking in the House
of Lords in December 1908 on the Bill which resulted
in the Government of India Act of 1909, Lord Morley,
the then Secretary of State for India, declared : "If
I were attempting to .set up a Parliamentary system in
India, or if it could be said that this chapter of rules
led directly or necessarily up to the establishment of a
Parliamentary system in India.
I for one W<111ld have
S.C.R.
SUPREME COURT REPORTS
763
nothing at all to do with it ............