Development of delegated legislation in India

The Privy Council was the highest Court for appeal from India in constitutional matters till 1949. The question of constitutionality came before the Privy Council in the famous case of R.Vs. Birah (1878) 3 AC 889. An Act was passed in 1869 by the Indian Legislature to remove Groro Hills from the civil and criminal jurisdiction of Bengal and vested the powers of civil and criminal administration in an officer appointed by the Legislative Governor of Bengal. The Legislative Governor was further authorized by section 9 of the Act to extend any provision of this Act with incidental changes to Khasi and Jaintia Hills. By a notification the Legislative-Governor extended all the provisions of the Act to the districts of Khasi and Jaintia Hills. One Burah was tried for murder by the commissioner of Khasi and Jaintia Hills and was sentenced to death. The Calcutta High Court declared section 9 as unconstitutional delegation of legislative power by the Indian legislature. The ground was that the Indian Legislature is a delegate of British Parliament, therefore, a delegate cannot further delegate. The Privy Council on appeal reversed the decision of the Calcutta High Court and upheld the constitutionality of section 9 on the ground that it is merely a conditional legislation. The decision of the Privy Council was interpreted in two different ways.

(i) Indian legislature was not delegate of British Parliament; there is no limit on the delegation of legislative functions.

(ii) Since Privy Council has validated only conditional legislation. Therefore, delegation of legislative power is not permissible.

So, it did not become clear whether full-fledged delegated legislation was allowed or only conditional legislation was allowed.

Federal Court

The question of constitutionality of delegation of legislative powers came before the Federal Court in Jhatindra Nath Gupta Vs. Province of Bihar, AIR 1949 FC 175. On this case section 1(3) of Bihar Maintenance of public order Act, 1948 was challenged on the ground that it authorized the provincial government to extend the life of the Act for one year with modification as it may deem fit. The Federal Court held that

the power of extension with modification is unconstitutional delegation of legislative power because it is an essential legislative Act. In this manner for the first time it was held that in India legislative powers cannot be delegated. However, Fazal Ali J. in his dissenting opinion held that the delegation of the power of extension of the Act is unconstitutional because according to him it merely amounted to a continuation of the Act. Later on, it is submitted that the minor view was correct and the Supreme Court upheld similar provision in another cases.

Supreme Court

The decision in Jatinfra Nath Case created doubts about the limits of delegation of legislative powers. Therefore, in order to clarify the position of law for the future guidance of the legislature in matters of delegation of legislative function, the President of India sought the opinion of the Court under Article 143 of the Constitution on the constitutionality of three Acts which conferred extension of area and modification power to the executive.

The Delhi Laws Act case, AIR 1951 SC 332, among them, said to be the Bible of delegated legislation. Seven judges heard the case and produced separate judgments. The case was argued from two extreme points.

Argument-1: Power of legislation carries with it the power to delegate. If the legislative don’t abdicate itself, there can be no limitation on delegation of legislative powers.

Argument-2: As there is in the Constitution the separation of powers and delegatus non potest delegare, so there is an implied prohibition against delegation of legislative powers.

The Supreme Court took the moderate view and held-

(i) Doctrine of separation of powers is not a part of the constitution.

(ii) Indian Parliament is never considered an agent of anybody and therefore doctrine of delegatus non potest delegare has no application.

(iii) Parliament cannot abdicate or efface itself by creating a legislative body.

(iv) Power of delegation is ancillary to the power of legislation.

(v) The limitation upon delegation of power is that the legislature cannot part with its essential legislative power that has been expressly vested in it by the constitution. Essential legislative power means laying down the policy of the law and enacting that policy into a rule of conduct.

So, the delegation was held to be valid except with repealing and modification of legislative power.