CONSTITUTIONALITY OF DELEGATED LEGISLATION

The term constitutionality of administrative rule- making means the permissible limits of the
constitution of any country within which the legislature can validly delegate rule- making power
to other administrative agencies. Today the necessity to aid the transition from laissez faire to a
welfare and service state has led to the tremendous expansion of government authority. The new
role of the State can be fulfilled only through the use of greater power in the hands of the
government which is most suited to carry out the social and economic tasks before the country.
For this reason delegation of legislative functions is highly necessary. This delegation of
legislative power raises a natural question of its constitutionality.1
I.

WHEN THE PRIVY COUNCIL WAS THE HIGHEST COURT OF APPEAL

The Privy Council was the highest court for appeal in India for constitutional matters till 1949.
The question of constitutionality came before it in the famous case of R. v. Burah2, the Calcutta
High Court declared Section 9 as unconstitutional on the ground that a delegate cannot further
delegate. The Privy Council on appeal reversed the decision and upheld it as constitutional on the
ground that it is merely a conditional legislation.
The doctrine of conditional legislation was again applied by the Privy Council in Benoari Lal3
when it upheld the constitutionality of an ordinance passed by the Governor General for the
establishment of special courts, and delegated power to the provincial governments to declare
this law applicable in their provinces at any time they deem fit.
Therefore, during the period the Privy Council was the highest court of appeal, the question of
permissible limits of delegation remained uncertain.
II.
WHEN FEDERAL COURT BECAME THE HIGHEST COURT OF APPEAL
The question of constitutionality came before the Federal Court in Jatinder Nath Gupta v.
Province of Bihar.4 In this, the validity of section 1(3) of the Bihar Maintenance Of Public Order
Act, 1948 was challenged on the ground that it authorized the provincial government to extend
1

Massey, I.P. (2012). Administrative Law (8th ed.). Lucknow, India: Eastern Book Company. pp. 91-92.
ILR (1879) 4 Cal 172.
3
AIR 1945 PC 48.
4
AIR 1949 FC 175.
2

the life of the Act for one year with such modifications as it deemed fit. The Federal Court held
that the power of extension with modification is unconstitutional because it is an essential
legislative function. But Fazal Ali, J. gave a dissenting opinion as for him it was constitutional on
the ground that it merely amounted to continuation of the Act.5
III.
WHEN SUPREME COURT BECAME THE HIGHEST COURT OF APPEAL
The decision in Jatinder Nath created doubts about the limits of delegation of legislative powers.
Therefore, in order to clarify the position of law the President of India sought the opinion of the
court under Article 143 of the Constitution on the constitutionality of three acts covering three
different periods:
1. Section 7 of the Delhi Laws Act, 1912
2. Section 2 of the Ajmer- Merwara (Extension of laws) Act, 1947
3. Section 2 of the Part C States (Laws) Act, 1950
Re Delhi Laws Act, 19126 is said to be the Bible of delegated legislation. Seven judges heard the
case and produced seven different judgments. The SC took the view via media and held:
1. Doctrine of separation of powers is not a part of the Indian Constitution.
2. Indian Parliament was ever considered an agent of anybody, and therefore the doctrine of
delegatus non potest delegare has no application.
3. Parliament cannot abdicate or efface itself by creating a parallel legislative body.
4. Power of delegation is ancillary to the power of legislation.
5. The limitation on delegation of power is that the legislature cannot part with its essential
legislative power that has been vested in it by the Constitution. Essential legislative
power means laying down the policy of the law and enacting that policy into a binding
rule of conduct.
On the basis of this reasoning, the Supreme Court came to the conclusion that
1. Section 7 of the Delhi Laws Act, 1912 is valid.
2. Section 2 of the Ajmer- Merwara (Extension of laws) Act, 1947 is valid
3. Section 2 of the Part C States (Laws) Act, 1950 is valid except that part of the section
which delegated power of repeal and modification of legislative policy, as it amounted to
excessive delegation of legislative powers.
Though seven judges gave seven different opinions, there is similarity on their views at least on
three points:

5
6

Ibid, 194.
AIR 1959 SC 332.

1. That the legislature cannot give that quantity and quality of law which is required for
the functioning of a modern state, hence delegation is necessary
2. That in view of a written Constitution the power of delegation cannot be unlimited
3. That the power to repeal a law or to modify legislative policy cannot be delegated
because there are essential legislative functions which cannot be delegated.