American Society of Comparative Law

Delegation of Legislative Power in India

Author(s): C. H. Alexandrowicz-Alexander
Source: The American Journal of Comparative Law, Vol. 3, No. 1 (Winter, 1954), pp. 72-79
Published by: American Society of Comparative Law
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72 THE AMERICAN JOURNAL OF COMPARATVE LAW

for more difficult questions, however, resort to translations may enable the
judge to consider the proof of foreign law with a more critical knowledge
than if he has to rely completely on what is presented to him by experts.
In view of these considerations,the importanceof translationsof foreign codes
should not be underestimated.
CHARLES SZLADITS*

* Associate in Comparative Law, Parker School of Foreign and Comparative Law, Colum-
bia University.

DELEGATION OF LEGISLATIVE POWER IN INDIA

I
The problem of delegation of legislative power appeared in India under
British rule at a time when the controversy over the problem in the West
was in full swing.Whereverthe principleof separationof powerswas incorporated
in a constitution in a rigid way, the conflict tended to become acute. This was
the case in the United States. Whenevera country had a more flexible constitu-
tion, the conflict could be solved without the painful process of sacrificing
major constitutional devices. This was the case in Great Britain. In inde-
pendent India, the conflict in settling the problem of delegation of legislative
power was not only one between the practical requirements of government
and constitutional theory in general, but prima facie also a conflict between
the English and Americantypes of solution. The Constitution of India com-
prises nearly four hundred articles, and it would not have been surprising
had the constitution makers included some solution.' But many of these pro-
visions were incorporated in the Constitution because politicians in the Con-
stituent Assembly tended to multiply legal formulations; they were often of
minor importance if compared with some of the greater constitutional issues
which were by-passed by the Assembly and thus left to future conventions
or to judicial interpretation. One of these issues, presented in three enact-
ments, was delegation of legislative power, on which the SupremeCourt was, in
1950,approachedby the President to give advice.2This referencewas occasioned
by the decision in Jatindra Nath Gupta v. the Province of Bihar, by which
the Bihar Maintenance of Public Order Act of 1947 had been considered by
the former Federal Court of India, and Section 3 of the Act had been held
ultra vires the ProvincialLegislatureof Bihar because of delegationof legislative
power to an extraneous authority.3This judgment was followed in a number
I See for instance the French Constitution of 1946 (art. 13), which states that the National

Assembly cannot delegate legislative power.

2 1951 SCJ 527-729.

3 1949 FLJ 225.

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 COMMENTS 73

of cases and cast doubt on the legality of the three statutory enactments
involved in the Advisory Opinion of the Supreme Court,4and on delegation
of legislative power as such.
The first of these enactments dates from 1912, at a time when the legislative
power in India was vested in the Governor General in Council on the basis
of the Indian Councils Act, 1861 (S.22). The nature and extent of legislative
power and the possibility of its delegation at this period was considered by
the Privy Council in the case of Queenv. Burah.5The Act under consideration
in this case (Act XXII of 1869 of the Council of the Governor-General)au-
thorized one of the Provincial Executives to extend laws in force in one area
to another extraneous area. The Privy Council held that the Council of the
Governor-Generalwas a supreme legislature with plenary powers and entitled
to transfer certain powers to the Provincial Executive. Laws passed by the
subordinate executive authority on the basis of such transfer of power were
held to be valid. It is, however, characteristic that delegated legislation was
carefully termed conditional legislation by the Privy Council. The Privy
Council considered a similar state of affairs in two Canadian cases, in Russel
v. the Queen6and in Ilodge v. the Queen,7in which powers transferredfrom
a legislature to the subordinateauthority were also called powers of conditional
or of ancillary legislation. The same reluctance to call delegation of legislative
power by name may be found in a number of other cases whether Indian,
Canadian, or Australian.8Thus at the time of passing the New Delhi Act of
1912 it was obvious that the Privy Council, the highest judicial authority
for India, accepted transfer of legislative power to the executive though it was
not called delegation sensu stricto.
The second enactment, Section 2 of the Ajmer-Mervara (Extension of
Laws) Act 1947, dates from a period immediately preceding the present

41951 SCJ 574. The following are the provisions in question in the three enactments:

Section 7 of the Delhi Laws Act, 1912:

"The Provincial Government may, by notification in the official Gazette, extend with such
restrictions and modifications as it thinks fit, to the Province of Delhi or any part thereof any
enactment which is in force in any other part of British India at the date of such notification."
Section 2 of the Ajmer-Mervara (Extension of laws) Act, 1947:
"The Central Government may, by notification in the official Gazette, extend to the
Province of Ajmer-Mervara with such restrictions and modifications as it thinks fit any en-
actment which is in force in any other Province at the date of such notification."
Section 2 of the of the Part C States (Laws) Act 1950:
"The Central Government may, by notification in the Official Gazette, extend to any Part
C State (other than Coorg and the Andaman and Nikobar Islands) or to any part of such
State, with such restrictions and modifications as it thinks fit, any enactment which is in
force in a Part A State at the date of the notification and provision may be made in any
enactment so extended for the repeal or amendment of any corresponding law (other than a
Central Act) which is for the time being applicable to that Part C State."

6 (1878) L. R. 5 I.A. 178; ILR 4 Cal. 172 (P.C.).

6 (1882) 7 A.C. 829.
7 (1883) 9 A.C. 117.
8 1951 SCJ 567-9.

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74 THE AMERICAN JOURNAL OF COMPARATIVE LAW

Constitution. India was then governed on the basis of the Government of

India Act 1935, which (together with the Indian Independence Act 1947)
laid the foundations for the federal structure of the State. We have seen
that in this period the Federal Court of India, the predecessorof the present
Supreme Court, examined the problem of delegation of legislative power to
an extraneous authority in Jatindra Nath Gupta v. the Provinceof Bihar and
held such delegation ultra vires the Bihar provincial legislature.9 This was
a decision of great importance implying the acceptance of a rigid theory of
separation of powers. In 1950 Parliament enacted the Part C States (Laws)
Act, which in Section 2 provides again for delegation of legislative power.
This was an enactment issued on the basis of the present constitution, and,
as the inter-relationshipbetween legislature and executive called for clarifica-
tion, the President of India on the basis of article 143 of the Constitution
asked the Supreme Court to give an Advisory Opinion in the matter.
II
The Advisory Opinion is composed of seven separate opinions each given
by one of the sevenparticipatingmembersof the Court. In giving their opinions,
the judges were confronted with the recent legacy of the constitution makers
and the pressure of governmental activity in a vast country calling for in-
tensified organization.Existing patterns and precedentswere carefullyweighed
while the requirements of the peculiar conditions of the new state were not
ignored. The outcome was an opinion of three judges in favor of the English
solution as to admissibility of delegation of legislative power as such.10Two
judges, including the late Chief Justice, expressed the view that the problem
of delegation of legislative power in India is similar to that in the United
States, mainly because of the existence of a supreme written Constitution
limiting the powers of the legislature."1Two other judges in principle joined
the three judges but disagreedwith them on the limits of delegation.12This
chef-d'oeuvre of expediency resulted finally in the acceptance of delegation
of legislative power as such without allowing it in Mr. Justice Cardozo'swords
to "run riot" but confining it "within banks that keep it from overflowing.""3
The first three judges tackled three fundamental problems: (1) whether a
legislature which has powers delegated from another legislature can sub-
delegate; (2) whether delegation is possible in spite of separation of powers;
and (3) whether it can take place in spite of legislative power vested by the
people in a legislature as the trustee of such power. The first question, which
was particularly important for the consideration of the validity of the New
Delhi Laws Act 1912 (S.7), was answered in the affirmative. Legislatures

91949 FLJ. 225.

'0 1951 SCJ 558-601, 668716.
111951 SCJ 531-558, 601-640.
12 1951 SCJ 640-668, 716-729.
13 Schechter Poultry Corp. v. U. S., 295 U. S. 495, 551 (1934).

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 COMMENTS 75

in India must be consideredsupreme in all the three periods under considera-

tion. Though their powers were before independencederived from the British
Parliament, they were nevertheless supreme in their own sphere, and the
maxim "delegatusnon potestdelegare"could therefore not be applied to them.
Neither was supremacy of Parliament questioned in the postindependence
period in which India received a written constitution. The second and third
problem may be merged into one. If its solution is attempted in an English
way as it was by the three judges, there is obviously no obstacle to delegation
of legislative power in principle. India has adopted a parliamentary regime
under which legislature and executive are intimately interconnectedand not
separated as under a presidential regime. In the United States, delegation
of legislative power had first to be reconciledwith the rigid theory of separa-
tion of powers inherent in the Constitution. Some of the Indian Supreme
Court judges recalled Prof. Cushman's well-known syllogism expressing the
conflict between theory and practice.'4
The United States Supreme Court termed the powers delegated administra-
tive or rather quasi-legislativepowers.'5But once a quasi institution is intro-
duced into the picture it tends to be highly contagious. In the United States,
Congressis the repositoryof legislative power and the President the repository
of executive power. The latter is not responsible to the former as under the
parliamentary regime. The paradoxical situation arises that if transfer of
power from one organ of the state to another takes place in spite of separation
of powers, and moreover if power so transferredand exercisedby the executive
is not legislative power, it must be power that the transferor could neither
have had nor have transferred.But as no reasoning can change the fact that
transfer of power takes place, it is impossible to maintain that there is still
real separation of powers. Thus the theory of quasi-legislativepower is bound
to lead to a theory of quasi separation of powers, according to which no organ
of the state could be exclusively the repository of one particularpower.
However absurd such a multiplication of quasi institutions may seem, the
fact remains that quasi separation of powers is not identical with nonsepara-
tion of powers as adopted in autocratic states. Russian and Chinese constitu-
tional lawyers speak today about unified state power and about separation
of functions between the three organs of the state.'6 In order to give a more
general value to their theory they try to interpret separation of powers in

141951 SCJ 549, 589, 677. See Cushman, The Independent Regulatory Commissions, 429:

"Major premise: legislative power cannot be constitutionally delegated by Congress.

"Minor premise: It is essential that certain powers be delegated to administrative officers and
regulatory commissions.
"Conclusion: Therefore the powers thus delegated are not legislative powers."

16 U. S. v. Grimaud, 220 U. S. 506 (1911); Humphrey's Executor v. U. S., 295 U. S. 602

(1934): See also Bernard Schwartz, American Administrative Law, p. 20.
16 A. K.
Srinivasamurthy, "Separation of powers in East and West," Indian Year Book of
International Affairs, 1952, pp. 197-209.

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76 THE AMERICAN JOURNAL OF COMPARATIVE LAW

the West as a fictitious doctrine. Attempts at such an interpretation can

hardly be convincing because of the genuine independence of the judiciary
in the West, and moreover because legislature and executive, whether under
a presidential or parliamentaryregime are not amalgamatedbut rather forced
into closer co-operation,while maintaining a real separate status with separate
powers. In other words, it is one thing to avail oneself of quasi institutions
for the purpose of achieving or explaining flexible solutions, and another thing
to fall into extremismand revert to unifiedpower which the West has discarded
after the collapse of autocratic monarchies.India has followed the democratic
path, and her problem as examined by the Supreme Court judges was not
one of unified power but a problem of maintaining channels for a transfer
of power from the legislature to the executive in accordancewith the require-
ments of practical government. In channellingthis transfer,the Supreme Court
was not faced with obstacles resulting from a rigid separation of powers but
could benefit from the flexibility of the parliamentary regime.
Some of the Advisory Opinions of the Supreme Court judges, whether they
belonged to the majority group or were dissenting, have contributed a great
deal to the clarificationof the real meaning of delegation of legislative power.
They have drawn attention to the fact that, in spite of two different regimes
in the United States and in Great Britain, there has been reluctance to refer
to delegation of legislative power by its name in both countries. The Privy
Council, as well as other British courts which were not concerned in any
way with overcoming the difficultiesof a rigid theory of separation of powers,
tended to explain in the same way as American judges who were faced with
these difficulties, the transfer of power from the legislature to the executive
by the concept of conditional, ancillary, or subordinate legislation.'7 This
kind of explanation had already been adopted in Hodge v. the Queen,1"in
re theInitiative and ReferendumAct,9 in re GeorgeEdwin Gray,20in theChemical
Referencecase,2' the Victorian Stevedoringand General ContractingCompany
Proprietary,Ltd. v. Dignan22and in other cases from all over the Common-
wealth, quoted by several Judges in their Advisory Opinions. It was applied
in the same way in a number of American cases such as in Locke'sAppeal,23
Hamptonand Co. v. United States,24 in Panama Refining Co. v. Ryan,25and in
Schechterv. United States.26 The last two cases were fully discussed by the
Supreme Court and deserve our careful attention, as they were of exceptional
17
1951 SCJ 542, 547, 549, 569, 578, 634, 648, 651, 661, 700, 712.
18
(1883) 9 A.C. 117.
19[1919] A.C. 935.
20
(1918) 57 S.C.R. Canada 150.
21[1943] S.C.R. Canada 1.
22 [1931]. 46 Com. L. R. 73.
2 72 Pa. St. 491. (1873).
24 276 U. S.
394, 406 (1928).
25 293 U. S. 388 (1934).
26 295 U. S. 495 (1934).

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 COMMENTS 77

importance in the history of delegation of legislative power in the United

States. It is in these two cases that the AmericanSupreme Court put a definite
limit to delegation of legislative power in the United States. The Supreme
Court took the view that delegation of essential legislative power had taken
place in the above two cases and that therefore federal legislation under
consideration was unconstitutional. Where however nonessential legislative
power was delegated, it was upheld by the Supreme Court, and legislation
enacted on the basis of such transfer of power was considered conditional or
ancillary. Here belong inter alia, cases of transferof power to make administra-
tive rules and regulations, to determine facts and conditions on which the
operation of statutes is contingent and transfer of nonlegislative or adminis-
trative functions. The Indian Supreme Court examined among other cases
the case of Dorr v. United States.27In this case the American Supreme Court
considered power delegated by Congress to a Presidential Commission to
legislate for the PhilippineIslands and held the power to be valid. The circum-
stances of the case are to some extent similar to those in the three Indian
enactments under consideration.
Judge Fazl Ali, the senior among the three judges, expressed the view
that there are two checks on delegation of legislative power, first, good sense
and, second, non-self-effacement.28This means that no parallel legislature
can be set up by Parliament and that primary legislation must always be re-
tained by it. It seems that the three judges applied two tests to the limits
of delegation of legislative power, a qualitative and a quantitative test. Ac-
cording to the first, delegation must be limited to conditional, ancillary, or
subordinate legislation;accordingto the second, no delegation of any quantity
of power which would be tantamount to abdication can take place.29In both
cases good sense must determine the frontiers at which delegation must stop.
The three judges followed in principle the English pattern of delegation of
legislative power, but there is not much deviation from the Americansolution.
Whatever is primarilya legislative function would not be delegatedby Congress
to the President or other executive authorities, but otherwise appropriate
formulae have been found to enable the executive to perform legislative
functions delegated by Congress,which are of a nonessential or a nonprimary
character.30One of the judges states emphatically that he sees no reason
why the "artificial and almost impracticable classification of governmental
powers laid down by the American decisions in a haphazard and illogical
manner, should be magnified into, and epitomized as laying down a sound
principle of legislation and be adopted" in India.3"It is difficult to agree with
the learned judge if we consider the whole development of delegation of
27 195 U. S. 138. (1904).
28 1951 SCJ 571.
29 1951SCJ 565.
30 1951SCJ 678.
31 1951
SCJ 704.

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78 THE AMERICAN JOURNAL OF COMPARATIVE LAW

legislative power in the United States, which resulted in spite of the presi-
dential regime in more or less the same solution as under English law. Delega-
tion of legislative power was accepted in both cases but only after overcoming
considerableobstacles, and whenever it went too far anxiety was felt because
of the growing power of the executive at the cost of the legislature. In the
United States, there was, in spite of the separation of powers, a growing
readiness to delegate legislative power, particularlywhere authority delegated
to the President is cognateto the latter's constitutional powers.32On the other
hand, it was thought in GreatBritain that the easily growingbody of secondary
legislation in the hands of the executive, though unlimited in principle,would
finally lead to a change of the constitution.33

III
The question whether in the particular three Indian enactments under
considerationthe limits of transferof power from the legislative to the executive
had been transgressed was considered by the judges in the following way:
the three judges gave a negative answer in respect of the clauses in all three
enactments referring to "restrictions and modifications" to be made by the
delegated authority in transplanted laws, as well as in respect of the clause
in the Part C States (Laws) Act 1950, referringto "repeal or amendment of
any correspondinglaw."34As stated above the judges consideredsuch transfer
of power as admissible delegation. Judge Fazl Ali recalled inter alia the Henry
VIII clause in English law which enables a minister by order to modify an
act of Parliament so far as necessary to bring it into operation.35As to the
power of repealing or amending any correspondinglaw, he considered it a
concomitant of the power of transplantation and modification of laws. He
relied in this respect multatismutandis on the Church of England Assembly
(Powers) Act 1919, by which the Church Assembly is empowered to propose
legislation concerning the Church which may extend to repeal and amend-
ment of existing acts of Parliament.36One of the two judges who were partly
dissenting and who accepted the clause concerning restrictions and modifica-
tions but considered the clause concerning repeal and amendment as in-
compatible with permissible delegation, relied on the judgment in Sir John
GordonSprigg v. Sigcou, in which the Privy Council held that the power
of repeal is inconsistent with the principles of delegation.37The entirely dis-
senting judges were of the opinion that the limits of transferof power had been
transgressed in all three enactments. They expressed the view that such

32E. S. Corwin, The President (1940) 122, 134.

33C. K. Allen, Law and Orders (1950).
341951 SCJ 583, 601, 716.
351951 SCJ 581; see E. Wade and G. Phillips, Constitutional Law (1950) 330.
36 1951SCJ 582.
37 1887 A.C. 238; 1951 SCJ 728.

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 COMMENTS 79

transfer of power amounted to delegation of legislative power sensu stricto,

which they considered inacceptable in principle.38
Out of these divergent views, a rather complicated picture emerged. The
clause referring to restrictions and modifications was saved by a majority
of five judges (the three judges and the two partly dissenting judges) against
two, whereas the opinion of the two entirely dissenting judges plus the opinion
of the two partly dissenting judges in respect of the clause concerningrepeal
and amendment prevailed over the group of three judges. Thus in the words
of Lord Hewart,39the Supreme Court of India has located the highwater
mark for certain types of delegation of legislative power in India and has
indicated what kind of clauses extending delegation would be ultra vires or
intra vires. It has also tended to explain delegated legislation by the concept
of conditional,ancillary,or subordinatelegislation.The decision of the Supreme
Court has since been followedby a numberof High Courts which have declared
delegation of legislative power in principlevalid, but subject to definite limita-
tions. They also have followed the Supreme Court in rejecting clauses of
repeal and amendment as unconstitutional,while accepting clauses concerning
restrictionsand modifications.40
In settling a constitutional issue of primary importance,the SupremeCourt
had, apart from general principles, little guidance from the Constitution.
Its advisory opinion constitutes an impressivesurvey of the history of delega-
tion in Great Britain and other Commonwealthcountries, and in the United
States. To constitutional lawyers in the West, this opinion may reveal the
possibility of simultaneous application of English and American patterns in
countries with new constitutions. It shows that by now the previously distant
lines of development of the parliamentaryand presidential regimes began at
least in certain respects to run parallel, and that Indian lawyers were able to
rely on the experience of both systems without excessive difficulties in recon-
ciling some of the differenceswhich tend to fade on the common background
of democracy.
C. H. ALEXANDROWICZ-ALEXANDER*

38 1951 SCJ 558, 640.

39 King v. Min. of Health, [1927] 2 KB 229, 236.
40 1952 ILR Patna. 220, 359; 1952 ILR All. 866; 1952 II. M.L.J. 598; 1952 ILR., S.C.
123.
* Research
Professor, Department of Law, Madras University.

NEW LEGISLATION

BOLIVIA: DECREE NATIONALIZING TIN MiNEs-The Decree nationalizing

the tin mines theretofore operated by the Patiflo, Aramayo, and Hochschild
interests was promulgatedin Bolivia on October31, 1952. Although no general

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