CONTEXT:

It was a reference made by the President of India, under article 143(1) of the
Constitution, inviting the Court to consider and report to him its opinion on the three
following questions :-

(1) Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof, and
in what particular or particulars or to what extent ultra vires the Legislature which
passed the said Act?

(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions
thereof, and in what particular or particulars or to what extent ultra vires the
Legislature which passed the said Act?

(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof,
and in what particular or particulars or to what extent ultra vires the Parliament?

It was rendered necessary in the light of the decision in Jatindra Nath Gupta v. The
Province of Bihar [1949] F.C.R. 595, which held the proviso to sub-section (3) of
section 1 of the Bihar Maintenance of Public Order Act, 1947, ultra vires the Bihar
Provincial Legislature, by reason of its amounting to delegation of its legislative
powers to an extraneous authority.

OPINION OF MUKHERJEA, J.

1. The two grounds on which delegated legislation was sought to be invalidated were
a. The doctrine of separation of powers.
b. The maxim delegatus non potest delegare.
He rejected both of them by stating that the framework of the Constitution does not
provide for SOP in the sense of the US Constitution and hence cannot be a ground for
defeating delegation of legislative powers.
He further cited Queen v Burah to state that the maxim would not be applicable as the
case had clarified that the Governor general was not a delegate of the British
parliament. (This is relevant as two of the three challenged Acts were pre-
constitutional)
2. But he held that delegation of powers is still permissible in India because:-
a. A power to legislate per se gives a right to delegate.
The constitution framework entrusts the task of law making to the legislature but
delegation is permissible but only as ancillary to, or in aid of, the exercise of law-
making powers by the proper legislature, and not as a means to be used by the latter to
relieve itself of is own responsibility or essential duties by devolving the same or
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. Thus, he located this power in the Constitution itself by stating that
delegation is essential to exercise the power of legislation effectively.
4. He distinguished Queen v Burah by stating that the powers of the Indian parliament
were very different from the powers of the Gover General in Council.
5. Limits of legislative delegation:
a. Conditional Legislation.
b. Delegated Legislation
i. Can’t be entrusted with an unqualified and independent
authority without any checks.
ii. The authority to whom it is delegated must be sub ordinate to
the legislature.
iii. It cannot amount to an abdication (surrender of essential
legislative functions).
6. What are essential legislative functions?
a. Determination of legislative policy.
b. Formal enactment of policy into a binding rule of conduct.
Therefore, the legislature can establish broad policy that would limit the sub ordinate
authority “Policy” would be there if it offers “intelligible guidance”.
7. He laid down three parameters for evaluating whether delegation is permissible or
not.
a. Clear enunciation of legislative policy.
b. Laying down of a standard.
c. Parliament is competent to legislate on the particular subject.

8. He evaluated the three acts on these parameters and held that:-

(a) Section 7 of the Delhi Laws Act, 1912, is in its entirety intra vires the legislature
which passed it and no portion of it is invalid.

(b) The Ajmer-Merwara (Extension of Laws) Act, 1947, or any of its provisions are
not ultra vires the legislature which passed the Act.

(c) Section 2 of Part C States (Laws) Act, 1950, in ultra vires to the extent that it
empowers the Central Government to extend to Part C States laws which are in force
in Part A States, even though such laws might conflict with or affect laws already in
existence in the area to which they are extended. The power given by the last portion
of the section to make provisions in any extended enactment for the repeal or
amendment of any corresponding provincial law, which is for the time being
applicable to the Part C State, is, therefore, illegal and ultra vires.