RAMESH BIRCH & ORS. ETC. v. UNION OF INDIA & ORS. ETC.

The Judgment of the Court was delivered by

RANGANATHAN, J. This is a batch of appeals and writ peti- tions challenging the validity of a notification issued on,.15 .12.1986 by -~ the Centr(al Government under section 87)of the Punjab Reorganisa- B 1 tion Act Act of Parliament No. 31of1966 , hereinafter referred to as ·' "-t 'the Reorganisation Act'. By this notification, the Central Govern- ment purported to extend to the Union Territory of Chandigarh- hereinafter referred to also as 'Chandigarh'-the provisions of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 (Punjab Act 2 of 1985) (hereinafter referred to as 'the 1985 Act'), as it was in force in the State of Punjab at the date of the notification and subject c ~ to the modifications mentioned in the said notification. The Punjab and Haryana High Court by its judgment in Ramesh Birch v. Union, AIR 1988 P & H 281 upheld the validity of the above notification and hence the special leave petitions. The writ petitions have been dirtctly filed in this Court challenging the validity of the notification. In view D of the importance of the question involved, we have heard the parties on the merits of the cases. We, therefore, grant special leave in the special leave petitions and rule nisi in the writ petitions and proceed to )L dispose of the appeals and the writ petitions by this common judg- ment. E

- Section 87 of the Reorganisation Act is in the following terms:

"87. Power to extend enactment to Chandigarh-The Cen-. tral Government may, by notification in the Official Gazette, extend with such restrictions or modifications as it thinks fit, to the Union Territory of Chandigarh any enact- F ment which is in force in a State at the date of the notification."

There are other provisions of this Act which will be referred to later. But it is necessary to refer to s. 87 here for a specific purpose and that is to point out that the provisions of section 87 are pari materia G with the pr0visions of Section 7 of the Debi Laws Act, 1912 and Sec- tion 2 of the Ajmer.Marwara' (Extension of Laws) Act, 1947, which, for convenience, we shall refer to.as Act I and Act II respectively. These provisions read as follows:

"Section 7 of Act I: The Provincial Government may, by H

p. 638 Copy page pinpoint

A notification in the Official Gazette, extend with such res- x- trictions 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 Act Il: The Central Government may, by }.-- notification in the' official Gazette, extend to the province of Ajmer Marwara with such restrictions and modifications t· as it thinks fit any enactment which is in force in any other province at the date of such notification."

It is also necessary here to contrast the above two provisions with c section 2 of the Part C States (Laws) Act, 1950 (hereinafter referred to, for purposes of convenience, as Act III). That provision reads as follows:

"Section 2 of Act III: The Central Government may, by '' D notification in the official Gazette, extend to any Part C State (other than Coorg and the Amendment and Nicobat. Islands) or 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."

The reference to these provisions is being made at this stage - because the validity of section 7 of the Delhi Laws Act, 1912 and section 2 of Ajmer Marwara (Extension of Laws) Act 1947 were upheld by this court in the decision reported as In re Delhi Laws Act, ,, [1951] S.C.R. 747. The decisio.n also upheld the validity of the first part of section 2 of Act III but struck down the second part of that provision (underlined above) as vitiated by the vice of excessive dele- gation. A good deal of the arguments addressed before us naturally turned on the"'ratio and effect of the decision of this Court in the Delhi Laws Act case (supra), but, before turning to the arguments, it is necessary to give a brief history of s. 87, the interpretation of which is presently in question.

WI\en the Constitution of India came into force on 26th January, H 1950, the component units of the Indian Union were grouped into four

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.] 639

-Y types of territories. There were nine States in Part A (one of which was A Punjab, earlier known as East Punjab), nine States in Part B (which included Pepsu), ten States in Part C (which included Himachal Pradesh) and only one State, namely, Andaman and Nico.bar Islands, in Part D. At tliis stage, although several of the former Indian States had acceded to the Indian Union_, the process of their integratior. as . component units of the Indian Union was not complete. Some units B ----\ were accepted as units of the Union in the form in which they existed .> . . at the time of independence while some were formed by grouping

· together one or more of the former princely States. After the recom- mendations of the States Reorganisation Commission in 1955, the Constitution was amertded to classify the units of the Indian Union into States and Union Territories. c At the time of the 1956 reorganisation one State of Punjab was created by merging the erstwhile States of Pepsu and Punjab. In 1966 a new State of Haryana was created by carying out certain territories from the'Staie of Punjab. Certain hill areas of the Punjab were merged with the adjoining Union Territory of Himachal Pradesh. A new D Union Territory of Chandigarh was carved out which became the joint capital of Punjab and Haryana. The Punjab Reorganisation Act, 1966 gave effect to these proposals. Sections 3 and 4 dealt with the delimita- )<. tion of the territories of the States of Pu.njab and Haryana and the Union Territories of Himachal Pradesh and Chandigarh. One of the important aspects of the reorganisation, in respect of which specific E

- statutory provision was needed, was regarding the applicability of laws to the various territories which underwent reoganisation. This was effected by Part X of the Reorganisation Act Comprising of sections 86 to 97. It is however sufficient for our present purposes to refer to the provisions contained in sections 87 to 90. These provisions were in the ...l... ·followin£terms: - ---- · · - - ·· ·· · F ·~ Section 87: Power to extend enactments· to Chandigarh- As set out earlier.

Section ·ss:· Territorial extent of laws- The Pro- visions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within the State immediately before the appointed day.

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A Section 89: Power to adapt laws- For the purpose of \'- facilitating the application in relation to the State of Punjab or Haryana or to the Union territory of Himachal Pradesh or Chandigarh of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations B and modifications of the law, whether by way of repeal or \ amendment, as may be necessary or expedient, and there- r upon every such law shall have effect subject to the adapta- ·-A - tions and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. c Section 90: Power to construe laws- (1) Notwithstanding that no provision or insufficient provision has been made "'f- 411 under section 89 for the adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the D purpose of facilitating its application in relation to the State of Punjab or Haryana, or to the Union of territory of Himachal Pradesh or Chandigarh construe the law in such manner, without affecting the substance, as may be neces- sary or proper in regard to the matter before the court, .~ tribunal or authority. E (2) Any reference to the High Court of Punjab in any law shall, unless the context otherwise requires, be construed, on and from the- appointed day, as a reference to the High Court of Pun jab and Haryana. _).,. F The dispute in this batch of cases is regarding the applicability of certain rent laws to the Union Territory of Chandigarh. The territories t' ' originally comprised in the former Province of East Punjab-later designated as the State of Punjab-were governed by the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'principal Act' or the' 1949 Act'). This Act applied to all urban areas in G the State of Punjab. Section 2(j) of that Act defined 'urban area' as any area administered by a municipal committee, a cantonment board, )r a town committee or a notified area committee or any are.a declared by the State Government by notification to be an urban area for the purposes of the Act. The Central Government had earlier issued, under section 89, the Punjab-Reorganisation (Chandi_garh) (Adapta- H tion of Laws on State and Concurrent Sub.iects) Order, 1968 w.e.f.

RAMESH BIRCH v. U.O.I. (RANGANAIBAN, J.] 641

-Y 1.11.66. Paragraph 4 of the Order directed that in all the existing laws, in its application to the Union Territory of Chandigarh, any reference A to the State of Punjab should be read as a reference to the Union Territory of Chandigarh and para Z(l)(b) of the Order defined the expression 'existing Jaw'. The Central Government, in exercise of the power conferred by section Z(j) of the principal Act, issued on . 13.10. 72 a notification declaring the area comprising Chandigarh to be B - \ an 'urban area' for the purposes of the principal Act. The notification ,..~was published in the Gazette of India on 4.11.72. This notification was however quashed by the Pun jab & Haryana High Court by its decision in the case of Harkishan Singh v. Union, AIR 1975 P & H 160. That . was on the short ground that, as no notification had been issued prior to 1.11.66 under s. Z(j) declaring Chandigarh to be an urban area, the ... Act could not be said to have been in force within the said area prior to c • I ~ 1.11.66. Neither s. 88 not the notification of 13.10.72 could, it was held, be effective to make the principal Act operative in Chandigarh unless it had first been applied to the Union Territory of Chandigarh or any part thereof by a notification under s. 87 with the necessary adaptation. This decision, of a Full Bench of the High Court, was D rendered on 9.10.1974.

Two courses were open to the Government to set right the lacuna pointed out by the High Court. The first, as pointed out by the Full Bench, was to extend the principal Act.to Chandigarh by a notification under s. 87. The second was to invoke the legislative powers of Parlia- E ment available in respect of Chandigarh under article 246(4) of the Constitution to enact a legislation for this purpose. But it was important that any corrective measure had to be made retrospective in its operation ifthe large number of suits for eviction that had been filed in the meanwhile on the strength of the notification and were pending disposal in various courts were to be saved from being F rendered non-maintainable consequent on the decision of the High ~ Court. Presumably for this reason, the second of the above courses was adopted and Parliament enacted the East Punjab Urban Rent Restriction (Extension to Chandigarh) Act (Central Act 54 of 1974) hereinafter referred to as 'the 1974 Act'. Section 3 of this Act provided for the enforcement of the principal Act in Chandigarh. It reads: G

"Section .3: Extension of East Punjab Act Ill of 1949 to Chandigarh-

Notwithstanding anything contained in any judgment, de- cree or order of any court, the Act shall, subject to the H

642 SUPREME COURT REPORTS [19891 2 S.C.R.

A modifications specified in the Schedule, be in force in, and Y- be deemed to have been in.force with effect from 4th day of November, 1972 in the Unio11 Territory of Chandigarh, as if the provisions of the Act so modified had been included in and formed part of this section and as if this section had been in force at all material times." B Three features of the above legislation may be emphasised at this '>-- stage. The first was that, though this purported to extend the principal • A

Act to Chandigarh, it was in truth and substance a Parliamentary ' enactment applicable to Chandigarh incorporating within itself by reference, for purposes of convenience and to avoid repetition, all the C provisions of the principal Act. The second was that the Act was given retrospe,ctive effect from 4.11.72, the date on which the previous notification under section 89 had been gazetted with a view to ~ j. regufarise all proceedings for eviction which might have been initiated I during the interregnum. Thirdly, the principal Act was re-enacted sub- ject to the modifications specified in the Schedule. These included a D modification of the definition of 'urban area' as including the area comprising Chandigarh as defined insection 2 of the Capital of Punjab (Development Regulation) Act, 1952 and such other areas comprised in the Union Territory of Chandigarh as the Central Government may by notification declare to be urban for the purposes of the Act.

E Before turning to the issues before us, it is necessary to refer to three subsequent developments:

(i) In 1976, when Parliament was not in session, the Presi- dent of India promulgated Ordinance 14 of 1976 on 17.12.76. By this Ordinance, the 1949 Act, as in force in Chandigarh, was F amended in the following respects: ~1 (a) In section 13, an exlanation and sub-section (4A) were 1' introduced;

(b) New sections 13A, 18A and 18B were inserted; G (c) A new sub-section (2A) in section 19 was inserted;

. (d) A Schedule II prescribing the form of summons to be issued in proceedings under the newly inserted s. 13A was edded. Thi> ordinance was allowed to lapse and was not enacted into law H tl'ereafter.

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.) 643

-Y (ii) In 1982, Parliament passed the East Punjab Rent A Restriction (Chandigarh Amendment) Act (No. 42) of 1983 (hereinafter referred to as 'the 1982 Act'). By this Act, two amendments were effected to the principal Act in its application to Chandigarh. One was a formal one replacing reference to "East Punjab" by areference to "Punjab". The second was the substitution of a new definition of "non-residential building" in B s. 2(d) of the Act. This amendment Act did not, however, incorporate the amendments ea~lier effected in the principal Act (as in force in Chandigarh) by the Ordinance of 1976 which had lapsed, though this opportunity could have been availed of by Parliament had it been so minded, to introduce those amend- ments as well. c ~- (iii) In 1985, the prov1S1ons of the principal Act were amended in their application to the State of Punjab. The legisla- ture of the State of punjab enacted Punjab Act 2 of 1985 (hereinafter referred to as 'the 1985 Act') by which the principal Act was amended to insert therein new sections 13A, 18A and D 18B and a new Second Schedule and to make certain amend- ments in sections 13 and 19 of the Act. These amendments were substantially the same as those that had been effected by the Ordinance of 1976 except that a new definition of "specified landlord" was added in s. 2 and the other provisions verbally altered in consequence. This amendment came into force w.e.f. E 16.11.1985.

When the last of the above developments took place, the Central Government considered it necessary to extend the 1985 Act to the territory of Chandigarh. In order to effectuate this object, it issued a notification dated 15.12.86 purportedly in exercise of its powers under F section 87 of the Reorganisation Act. By this notification the Central Government extended to the Union Territory of Chandigarh the pro- visions of the 1985 Act as in force in the State of Pun jab at the date of the notification (i.e. to say as on 15.12.1986) and subject to the modifi · cations mentioned therein. The resultant position is that while the provisions of the principal Act had been brought into force in the G Union Territory of Chandigarh w.e.f. 4.11.72 by an Act of Parliament, the provisions of the 1985 Act have been extended to the territory of Chandigarh by means of a notification of the Central Government issued under s. 87. The short question posed before us is whether the latter "extension'' is pem1issible and valid in law. H

644 SUPREME COURT REPORTS [1989] 2 S.C.R.

Ex facie, the impugned notification appears to be intra vires s. ¥- A

87. The 1985 Act is an enactment in force in a State on the date of the notification and s. 87 clearly permits the Central Government to extend it to Chandigarh. If the petitioners/appellants seek to challenge its validity, they have either to contend that s. 87 itself is ultra vires the Constitution or that, though s. 87 is a valid provision, on a proper B construction thereof, the notification travels beyond the area of exten- sion permitted tinder it and is hence invalid. Both these contentions '>.- have been urged before us. Sri Gujral had so.much confidence in the latter ·argument that he had made it his principal argument, taking up the former as a plea in the alternative. But young Sri Swamp boldly ·--- .. concentrated on attacking the validity of s. 87 while also lending sup- port to Sri Gujral's principal argument as an argument in the alterna- c tive. We shall proceed to examine these two contentions. "'-- The argument contesting the validity of s. 87 proceeds on the following lines. The main premise of the argument is that, under Article 246( 4) of the Constitution, Parliament has exclusive power to make laws on matters enumerated in the State List and Concurrent List (i.e. List II and List III of the Seventh Schedule to the Constitu- tion) in respect of a Union Territory except where (as in the case, say, of Pondicherry) the territory has a legislative assembly, in which event the power will vest in such assembly under s. 18 of the Government of ~ Union Territories Act (18 of 1963). There being no legislative assem- E bly set up for Chandigarh, Parliament and Parliament alone has any legislative power with regard to that territory. This power, however, plenary and .extensive, cannot be self effacing. In purported exercise of such power, Parliament cannot delegate its legislative function in favour of an executive authority to such an extent as to amount to an - "abdication" of such legislative function. The argument is that this is ~ F exactly what has been done under s. 87. By enacting s. 87, Parliament, instead of legislating for the Union Territory, has left it to the Central ~ Government to decide for all time to come what should be the laws in force in that territory. This, it is said, is clear from. the extraordinary ambit of the powers conferred by s. 87 on the Central Government in three important directions: 0 ~ (i) S. 87 is not transitional in nature but confers an all time power on the executive. This will be clear if one contrasts it withs. 89. Section 89 gives a limited power to the Central Government to adapt existing laws within a period of two years. Though, as will be noticed later, s. 89 is wider in certain respects, it is clearly a transitory provi- H sion -intended to enable the Central Government to tide over the

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.J 645

- 'y difficulties caused by the sudden creation of a new territory and the • A immediate need for having laws applicable therto. The transitoriness is indeed emphasised by the concluding words of s. 89, (which are really superfluous) that the adaptation will hold the field only until they are altered, repealed or a.mended by a competent legislature or authority. But s. 87 empowers tine Central Government to extend any legislation to Chandigarh at any time: even today, twenty three years after the B ~

- -· passing of Reorganisation Act.

(ii) The second feature of s. 87 is this. Under it, the Central Government could extend to the Union Territory any law in force in any part of India. For instance, it could be the Rent Control Act in force in Punjab or the Rent Control Act in operation in a distant State like the State of Tamil Nadu. It could perhaps extend to the Union c --Y" Territory some provisions of the rent control legislation in one State side by side with certain other provisions of legislations in force in any .., other State or States and thus enforce a law which would be an "amalgam" of various statutory provisions in force in various parts of the country. Though a concession against this possibility was made in D Delhi Laws Act case (1951 SCR 747 at p. 1005), it would seem to be possible if such provisions are contained in independent enactments. Here, for e.g. the 1949 Act and the 1985 Act, both of Punjab, have been made applicable to Chandigarh. But suppose, after the provi- 't sions of the 1949 Act had been made applicable to Chandigarh by the 1974 Act, an amendment Act of the nature presently in question had been introduced not in the Punjab but, say, in Kerala, there is nothing - in the language of s. 87 to prohibit the Central Government from extending the Kerala Amendment Act to Chandigarh to stand side by side with the 1974 Act. In other words, the section confers on the executive government a wide· power of choice, for application to ~- Chandigarh, of not only one legislative enactment on any subject from F ,_.. among various enactments on that subject in operation in various parts of the country but also of groups of provisions from one or more of them. There is no legislative guidance as to the manner in which these choices should be exercised by the executive government.

(iii) The laws that can be extended to the Union Territory under G I --f s. 87 would include not only the laws in force in any State in India on the date of the Reorganisation Act (i.e. 1.11.66) but any Act that may come into force in those States upto the date of the notification. If it had been restricted to laws in force as on the day the Reorganisation Act came into force, one could at least say that Parliament could be attributed with a knowledge of the various provisions in existence in H

646 SUPREME COURT REPORTS [1989] 2 S.C.R.

A the various states, and to have decided, as a matter of policy that )'-'· anyone of them could be good enough for Chandigarh and hence left it to the executive government to choose and extend any one of them for application to the territory. But section 87 goes further and enables extension, by Government notification, even of any legislation which might come into force in any part of India at any time between 1966 a and the date of the notification. Parliament, while enacting the )..._. Reorganisation Act, could certainly have had no knowledge or even inkling of possible laws that might be enacted in future in any part of ~ t the country on any subject. The effect, therefore, of s. 87 would be that the entire legislation for the Union Territory, in respect of any particular subject, would entirely depend upon the fancy of the Cen- ... C tral Government without any sort of legislative or parliamentary appli- cation of mind, except the fact that some legislature in some part of the country has considered the law good enough for the conditions prevail- ~ ing in that territory. Learned counsel contends that these facets of section 87 clearly render it an instance of excessive delegation by Parli- ament to executive amounting, in effect, to the total abdication by D Parliament of its legislative powers in regard to Chandigarh.

The prob.lem posed before us is, what Chinnappa Reddy, J. in Registrar of Cooperative Societies v. Kunhambu, [1980] 2 SCR 260 described as, the "perennial, nagging problem of delegated legislation and the so called Henry VIII clause". This is an issue on which there is E an abundance of authority, of even larger Benches of this Court. The judgments in R. v. Burah, [1878] 5 I.A. 178; Jatindra Nath Gupta, · [1949] FCR 595; the Delhi Laws Act case, [1951] SCR 747; Hari Shankar Bag/a, [1955] 1 SCR 380; Rajnarain Singh, [1955] 1SCR290; Sardar Inder Singh, [1957] SCR 605; Banarsi Das, [1959] 1 SCR 427; Edward Mills, [1959] 1 SCR 735; Western India Theatres, [1959] Supp 2 F SCR 71; Hamdard Dawakhana, [1960] 2 SCR 671; Vasantla/ Maghanbhai, (1961] 1 SCR 341; Jyoti Prashad, (1962] 2 SCR 125; t" Shama Rao, [1962] 2 SCR 650; Mohammad Hussain Gu/am Moham- mad, (1962] 2 SCR 659; Liberty Cinema, (1965] 2 SCR 477; Devi Dass, [1967] 3 SCR 557; Bir/a Cotton, (1968] 3 SCR 251; Sitaram Bishambar Dayal, (1972] 2 SCR 141; Hira/al Ratanlal, [1973] 2 SCR 502; Gwalior G Rayon, [1974] 2 SCR 879; Papiah, [1975]-3 SCR 607 and Kunhambu, [1980] 2 SCR 260 and Brij Sunder Kapoor, [1989] 1 SCC 561 can be referred to for a detailed discussion and application of the relevant principles in the context of various kinds of legislative provisions. It is unnecessary, for our present purposes, to undertake a detailed exami- nation of the several opinions expressed in these cases. Suffice it to say H that these decisions have been interpreted as holding that the power of

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.) 647

-¥ Parliament to entrust legislative powers to some other body or autho- A rity is not unbridled and absolute. It must lay down essential legislative policy and indicate the guidelines to be kept in view by that authority in exercising the. delegated powers. In delegating such powers, Parlia- ment cannot "abdicate" its legislative functions in favour of such authority. · B ----( Doubts have been expressed in some quarters as to the correct- _,._-. ness of the principle indicated above. It has been suggested that, had the question been res integra or even if one carefully analysed the observations made in these various cases, there is much to be said for a different view advocated by the Privy Council in R. v. Burah, [1878] 5 I.A. 178 and adhered to by it ever since. This view is that, given the \..,- present system of Parliamentary democracy, the extensive range of c -I governmental functions today and the kind and quantity of legislation which modern public opinion requires, the legislatures under the Con- stitution should be held to be supreme and unrestricted in the matter of legislation and should not be prohibited from delegating some of their powers of legislation to such other agencies, bodies or authorities D as they may choose, so Jong as they do not altogether divest themselves of their legislative power and confer them on another and so long as they retain the power, whenever it pleases them, to remove the agency )( they have created and set up another or take the matter directly into their own hands. The reasons put forward in support of this line of thought are these: E

(1) The whole doctrine of excessive delegation is based either on the doctrine of separation of powers or on the doctrine of the law of agency: "delegata potestas non potest delegari", neither of which can validly apply to the constitutional context we are concerned with. F

(2) The Privy Council, ever since its leading decision in R. v. Burah, [1878] 5 I.A. 178, has taken this view consistently. This is also the view to which American and Australian courts have veered round in recent years. G (3) The doctrine enunciated in the above cases is so difficult of practical application and has resulted in such a large number of separate judgments that litigants are encouraged to raise the plea in respect of every conceivable piece of delegation banking on an off chance of being ultimately successful. H

648 SUPREME COURT REPORTS [1989] 2 S.C.R.

A (4) The magnitude of the controversies raised on this issue '¥- is so great that legislations, if invalidated on this g~ound, have to be invariably validated with retrospective effect. The result is that, on the one hand, the implementation of important legisla- tions is held up due to interim ordf:rs for the long period of pendency of the litigation and even the final determination, on B the other, achieves no practical result. In short, the considera- tion of such issues is practically a waste of judicial time.

5. The doctrine is based on the theory that it is the legisla- ture and not the executive that has to apply its mind to the basis of all legislation. Judicial dicta are not wanting which emphasise that this is a theory wholly unrelated to the practical realities of c the modern functioning of a cabinet. system of Government.

6. An examination of the cases decided on this principle show that it is very difficult to define the scope of "essential legislative function" which cannot be delegated. In the ultimate D analysis, only lip service is paid to the doctrine of legislative policy and guidance and courts are inclined to grab at the weakest of straws as a policy or guideline with which to bale out an impugned piece of legislation rather than invalidate it.

(7) There have been. cases where the delegation of the tax- E ing powers has been upheld by drawing on non-existent distinc- tions such as, for example, one between the delegation of a power to fix the rates of the taxes to be charged on different classes of goods and the power to fix rates of taxes simpliciter.

(8) There is clear inconsistency between Shama Rao, ,>-. F [1962] 2 SCR 650 and the decision in the Delhi Laws Act, case upholding the delegation to the executive of the power to extend l/' not only present but also future laws to a particular territory. Shama Rao does not answer the question posed before it that the validity of such legislation follows on the answer given by Delhi Laws to categories (3) and (4) of Bose J.'s summary of its deci- G sion in Rajnarain. ·"""'

(9) The Indian Statute book contains any number of legis- lations, on tax matters as well as others, conferring a wide range of delegation of powers and a search for guidelines or policy underlying them may well prove an unending quest. H

RAMESH BIRCH v. U.0.¹. [RANGANATIIAN, J.] 649

( 10) Judicial dicta abound where it has been pointed out A that, so long as the legislature has preserved its capacity in tact and retained control over its delegate, so as to be able, at any time, to repeal the legislation and withdraw the au)hority and discretion it had vested in the delegate, it cannot be said to have abdicated its legislative functions. B Chinnappa Reddy, J. in Kunhambu, [1980] 2 SCR 260, did not wish to be drawn into the pros and cons of the above line of reasoning. His Lordship observed that the clear trend of a large number of the decisions of this Court was in favour of the "policy" and "guidelines" theory and he was content to adopt the same for the purposes of the case before the Court. This theory, which is capable of being for- mulated in broad terms, though difficult of practical application to c individual cases as and when they arise, can be set out best in the words of Reddy, J. in the above case:

"It is trite to say that the function of the State has long·since ceased to be confined to the preservation of the public D peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure to its citizens 'social, economic and political justice', to preserve 'liberty of thought, expression, belief, faith and worship', and to ensure 'equality of status and of opportunity' and 'the dignity of the individual' and the 'unity of the nation'. That E

- is what the. Preamble to our Constitution says and that is what is elaborated in the two vital chapters of the Constitu- tion on Fundamental Rights and Directive Principles of State Policy. The desire to attain these objectives has necessarily resulted in intense legislative activity touching every aspect of the life of the citizen and the nation. Execu- F

• tive activity in the field of delegated or subordinate legisla- tion has increased in direct, geometric progression. It has to be and it is as it should be. The Parliament and the State Legislatures are not bodies of experts or specialists. They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and G the acquiescence and the articulation of the views of the people whom they represent. They function best when they concern themselves with general principles, broad objec- tives and fundamental issues instead of technical and situa- tional intricacres which are better left to better equipped full time expert executive bodies and specialist public H

650 SUPREME COURT REPORTS [1989] 2 S.C.R.

A servants. Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance. Nor can Parliament and the State Legis- latures visualise and provide for new strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the B raison d'etre for delegated legislation. That is what makes delegated legislation inevitable and indispensable. The Indian Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects

c entrusted to them by the Constitution, subject to the limi- tations imposed by the Constitution itself. The power to legislate carries with it the power to delegate. But excessive - delegation may amount to abdication. Delegation unlimi- ted may invite despotism uninhibited. So the theory has been evolved that the legislature cannot delegate its essen- tial legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and D carry out policy. The legislature may guide the delegate by speaking through the express provision empowering dele- gation or the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance there is, wherever it may be found, the delegation is valid. A good deal of latitude has been held to be permis- E sible in the case of taxing statutes and on the same principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly tho.se statutes which are designed to further the Directive Principles of State Policy." - F The same view was taken by Khanna J. in Gwalior Rayon, [1974] 2.SCR 879 when; after reviewing the entire literature on the subject, • he observed:

"It would appear from the above that the view taken by this Court in a long chain of authorities is that the legisla- ture in conferring power upon another authority to make ),. subordinate or ancillary legislation must lay down policy, principle, or standard for the guidance of the authority concerned. The said view has been affirmed by Benches of this Court consisting of seven Judges. Nothing cogent, in our opinion, has been brought to our notice as may justify departure from the said view. The binding effect of that

RAMESH BIRCH v. U.0.¹. [RANGANAlHAN, J.I 651

view cannot be watered down by the opinion of a writer, however eminent he may be, nor by observations in foreign judgments made in the context of the statutes with which they were dealing." ·

"While undoubtedly certain definite conclusions were G reached by the majority of the judges who took part in the decision in regard to the constitutionality of certain specified enactments, the reasoning in each case was diffe- rent and it is difficult to say that any particular principle has been laid down by the majority which can be of assistence in the determination of other cases". H

652 SUPREME COURT REPORTS [1989] 2 S.C.R.

A Thirdly, Shama Rao, [1967] 2 SC 650 is said to be a binding decision of a Constitution Bench of this Court to the contrary and that has to be followed by us. ·

Since the Delhi Laws Act case, [1951] SCR 747 was concerned with provisions identical in language to the one before us, it is only B proper and appropriate for us to refer to the reasoning of the judges in the Delhi Laws Act case in regard to the provisions the validity of which was upheld:

A. Kania CJ. held that all the provisions under consideration were ultra vires to the extent they permitted the extension of Acts C other than those of the Central Legislature to the areas in question. ·His view was that the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct and these essentials are the characteristics of a legislature itself. These essentials are preserved when the legislature specifies the basic conclusions 'of fact upon the ascertainment of which from rele- D vant 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. His Lord- ship was further of the opinion that, if full powers to do everything that the legislature can do are conferred on a subordinate authority, although the legislature retains the 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 efface- ment of the legislature conferring such power. Even such partial "abdication or effacement" is not permissible. The provisions impugned were, therefore, invalid.

B. The salient point in the opinion of Fazal Ali J. are these: •

1Copy pinpoint1. Even American Courts, which are fiercely opposed to un- canalised delegation of legislative power to the executive, have been compelled, by practical considerations, to engraft numerous excep- ~ tions to the rule and, in laying down such exceptions, have offered various explanations, one of which is this:

"The true distinction ..... is this. The legislature cannot delegate the power to make a law; but it can make a law to delegate a power to determine some fact or state of things

RAMESH BIRCH 11. U.O.I. (RANGANATIIAN, J.) 653

upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of Government. " · (P. 814)

2Copy pinpoint2. The true import of the rule against delegation is this: B "This rule in a broad sense involves the principle underly- ing the maxim, delegatus non potest delegare, but it is apt to be misunderstood and has been misunderstood. In my judgment, all that it means is that the legislature cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted. This rule has been recognised both in America and in England ...... "

xxx xxx xxx xxx

"What constitutes abdication and what class of cases will be covered by that expression will always be a question of fact , and it is by no means easy -to lay down any comprehensive formula to define it, but it should be recognised that the rule against abdication does not prohibit the Legisiature from employing any subordinate agency of its own choice for doing such subsidiary acts as may be necessary to make its legislation effective, useful and complete". (P. 819)

3Copy pinpoint3. The conclusions are set but thus:

" (1) The legislature must normally discharge its primary legislative function itself and not ·through others.

(2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate 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 that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation . H

:· 654 SUPREME COURT REPORTS [1989} 2 S.C.R.

A (3) It cannot abdicate its legislative functions, and there- fore while entrusting power to an outside agency , it must · see that _such agency acts as a subordinate authority and does not become a parallel legislature.

(4) The doctrine of .separation of powers and the judicial B interpretation it has received in America ever since the American Constitution was framed, enables the American courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therd()re,-there are only two main checks in this country on the power of the legislature to delegate, c these being its good sense and the principle that it should not cross the line beyond which delegation amounts to "abdication and self-effacement". (P. 830-1)

4Copy pinpoint4. The learned Judge recognised that the impugned provisions, at first sight, did appear to be very wide-they were of the same sweeping nature ass. 87 here-and observed.

"Let us overlook for the time being the power to introduce modifications with which I shall deal later, and carefully consider the main provision in the three Acts. The situation with which the respective legislatures were faced when these Acts were passed, was that .there were certain State or States, with no local legislature and a whole bundle of Jaws had to be enacted for them. It is clear that the legisla- tures concerned before passing the Acts, applied their mind and decided firstly, that the situation would be met by the adoption of laws applicable to the other provinces inasmuch as they covered a wide range of subjects approached from a variety of points of view and hence the requirements of the State or States for which the laws had to be framed could not go beyond those for which laws had already been framed by the various legislatures, and secondly, that the matt~r should be entrusted to an autho~ · rity w.hich was expected .to be familiar and could easily make itself familiar with the needs and conditions of the State or States for which the laws were to be made. Thus, everyone of the Acts so enacted was a complete law, because it embodied a golicy, _defined a standa~d; and

RAMESH BIRCH v. U.O.L (RANGANATHAN, J.] 655

directed the .. authority chosen to act within certain pres- A cribed limits and not to go beyond them. Each Act was a complete expression of the will of the legislature to act in a particular way and of its command as to how its will should be carried out. The legislature decided that in the circum- stances of the case that was the best way to legislate on the subject and it so legislated. It will be a misnomer to B describe such legislation as amounting to abdication of • • powers) because from the very nature of the legislation it is manifest that the legislature had the power at any. moment of withdrawing or altering any power with which the authority chosen was entrusted, and could change or repeal the laws which the authority was required to make appli- cable to the State or States concerned. What is even more c important is that in each cas,e the agency selected was not empowered to enact laws; but it could only adapt and extend laws enacted by responsible and competent legisla- tures. Thus, the power given to the Governments in those Acts was more in the nature of ministerial than in the D nature of legislative power. The power given was minis- terial, because all that the Government had to do was to study the laws and make selections out of them." (pp. 838-9)

He proceeded to point out that such legislation was neither unwar- E ranted nor unprecedented.

5: Following the line of reasoning in Sprigg v. Sigoau, [1897] A. C. 233 the learned Judge held that what the Central Government ; ''7.'> '\ had been empowered to do under the impugned legislations was not to enact "new laws" but only "to tran_splant" to the territory concerned F laws operating in other 1wrts in the country. As to the absence of a clause-such as the one in 'the enactment considered in Sprigg and the latter part of s. 89 that any extensions made shall be subject to repeal, alteration or variation by Parliament, the learned Judge observed,

"This provision however does not affect the principle. It G was made only as a matter of caution and to ensure the superintendence of Parliament, for the laws were good Jaws until they were repealed, altered or varied by Parlia- ment. If the Privy Council have correctly stated the princi- ple that the legislature in enacting subordinate or condi- tional legislation does-not part with its perfect control and H

656 SUPREME COURT REPORTS [1989] 2 S.C.R.

A has the power at any moment of withdrawing or altering the power entrusted to another authority, its power of superintendence must be taken to be implicit in all such legislation. Reference may also be made here to somewhat unusual case of Dorr v. United States, [1904 I 195 US 138, where delegation by Congress of the power to legililate for B the Phillipine Islands was held valid." (p. 843) '.>---

6. Indian legislation, past and present, contains numerous ". (

instances of enactments whereunder power was conferred on a local Government to extend to the local territory laws in force in other parts ... of the country as on the date of such extension. The learned Judge c observed:

"It is hard to say that any firm legislative practice had been established before the Delhi Laws Act and other Acts we are concerned with were enacted, but one may presume that the legislat)H'e had made several experiments before the passing of these Acts and found that they had worked well and achieved the object for which they were inten- ded.]' (p. 846)

·1. The learned Judge concluded with a few general observations on the subject of "delegated legislation" in its popular sense. He observed:

"The legislature has now to make so many laws that it has . no time to devote to all the legislative details, and some- times the subject on which it has to legislate is of such a F technical nature and all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject. Again, when comp- lex schemes of reform are to be the subject of legislation, it is difficult to bring out a self contained and complete Act straightaway, since it is not possible to foresee all the con- G tingencies and envisage all the local requirements for which provision is to be made. Thus, some degree of flexibility becomes necessary, so as to permit constant adaptation to unknown future conditions without the necessity of having to amend the law again and again. The advantage of such a course is that it enables the delegate authority to consult H interests likely to be affected by a particular law, make

RAMESH BIRCH v. U.0.¹. (RANGANA1HAN, J.) 657

actual experiments when necessary, and utilize the results of its investigations and experiments in the best way possi- A ble. There may also arise emergencies and urgent situa- tions requiring prompt action and the entrustment of large powers to authorities who have to deal with the various situations as they arise. B xxx xxx xxx xxx

It is obvios that to achieve the objects which were intended to be achieved by these Acts, they could not have been framed in any other way than that in which they were framed". (p. 851-2) c C. Patanjali Sastri, J. upheld the validity of all the impugned provisions. His Lordship held that it is as competent for the Indian Legislature to make a law delegating legislative power, both quantita- tively and qualitatively, as 'it is for Parliament to do so provided, of course, it acts Within the circumscribed limits. The learned judge, however, drew a distinction between delegation of legislative authority and the creation of a new legislative power. He observed:

In the former the delegating body does not efface itself but retains its legislative power intact and merely elects to exer- cise 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 co-ordinate body to make laws operating.of their own force. In the first case, according to English constitutional law, no express provision authorising delegation is re- quired. In the absence of a constitutional inhibition, dele- F gation of legislative power, however extensive, could be made so long as the delegating body retains its own legisla- tive power- intact. In the second case, a positive enabling provision in the constitutional document Is required.

D. Mahajan J. shared the view of Kania CJ that all the impugned G -{ provisions were ultra vires. His Lordship considered it a settled maxim of constitutional law that a legislative body cannot delegate its power. The legislature cannot substitute the judgment, wisdom and patriotism of any other body for those to which alone.the people have seen fit to confide this sovereign trust. Unless the power io delegate is expressly . given by the Constitution-and it has not bee.il-a legislature cannot H

658 SUPREME COURT REPORTS [1989] 2 S.C.R.

A abdicate its functions and delegate essential legislative functions to any ~ other body. There is such 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.

B E. To turn next to the views of Mukharjea J. the learned Judge considered the following aspects: · f

1. The learned Judge did not accept the principle that an un- -, ~. limited right of delegation is inherent in the legislative power itself. He ' observed:

"This is not warranted by the provisions of the Constitution c 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 completely. The legisla- . ture must retain in its own hands the essential legislative D 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 subor- dinate 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 E standard laid down the courts cannot and should not in- terfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. These, in my opinion, are the limits within which delegated legislation is constitutional provided of course, the legislature is competent to deal ) F with and legislate on the particular subject matter". (P. 997) ~

2. Dealing with the question whether the statutory provisions under consideration envisaged an unwarrantable delegation of legisla- tive powers to the executive government, the learned Judges said: G "If the competent legislature has framed a statute and left it to an outside authority to extend the operation of the whole or any part of it, by notification, to any particular area, it would certainly be an instance of conditional legis- lation as discussed above and no question of delegation would really arise. The position would not be materially

RAMESH BIRCH v. U.O.J. [RANGANATHAN, J.] 659

different, if instead of framing a statute, the legislature had specified one or more ei<isting statutes or annexed them by way of a schedule to the Act and had given authority to a subordinate or administrative agency to enforce the opera- tion of any one of them at any time it liked to a particular area. It could still be said, in my opinion, that in such circumstances the proper legislature had exercised its judg- B ment already and the subordinate agency was merely to determine the condition upon which the provisions already made could become operative in any particular locality". (P. 999-1000)

3. Adverting to the wide power in the impugned provision to extend future laws as welland that too with the modifications and c )(-· restrictions, he observed:

"The question is whether these facts indicate a surrender of the essential powers of legislation by the legislature. The point does not seem to be altogether free from difficulty, but on careful consideration I am inclined to answer this question in the negative. As I have already said, the essen- tial legislative power consists in formulating the legislative policy and enacting it into a binding rule of law. With the merits of the legislative policy, t.he court of law has no concern. It is enough if it is defined with sufficient precision and definiteness so as to furnish sufficient guidance to the executive officer who has got to work it out. If there is n!J vagueness or indefiniteness in the formulation of the pol- icy, I do not think that a court of law has got any say in the matter. The policy behind the Delhi Laws Act seems to be ~-. that in a small area like Delhi which was constituted a F separate province only recently and which had neither any local legislature of its own nor was considered to be of sufficient size or importance to have one in the near future, it seemed to the legislature to be quite fit and proper that the laws validly passed and in force in other parts of India should be applied to such area, subject to such restrictions G and modification as might be necessary to make the law suitable to the local conditions. The legislative body thought fit that the power of making selection from the existing statutes as to the suitability of any one of them for being applied to the province of Delhi, should rest with the Governor General in Council which was considered to be H

660 SUPREME COURT REPORTS [1989] 2 S.C.R.

the most competent authority to judge the necessities and requirements of the Province. That this was the policy is apparent from several other legislative enactments which were passed prior to 1912 and which would show that with regard to areas which were backward or newly acquired or extremely small in size and in which it was not considered proper to introduce the regular legislative machinery all at once, this was the practice adopted by the legislature at that time." ) (P. 1000-1)

4. one more passage from the opinion of the learned Judge may be set out In regard to two aspects of the impugned provision that were c touched upon before us. The learned Judge said:

"Of course the delegate cannot be allowed to change the policy declared by the legislature and it cannot be given the power to repeal or abrogate any statute. This leads us to D the question as to what is implied in the language of section 7 of the Delhi Laws Act which empowers the Central Government to extend any statute in force in any other part of British India to the Province of Delhi with such 'modifi- cations and restrictions' as it thinks fit. The word "restric- tion" does not present much difficulty. It connotes lilnita- E tion ilnposed upon a particular provision so as to restrain Its application or limit its scope. It does not by any means involve any change in the principle. It seems to me that in I the context, and used along with the word "restriction", the word "modification" has been employed also in a cognate sense and it does not involve any material or sub- F stantial alteration. The dictionary meaning of the expres- sion ''to modify" is to "tone down" or "to soften the rigidity of the thing" or "to make partial changes without any radical alteration." It would be quite reasonable to hold that the word "modification" in section 7 of the Delhi Laws Act means and signifies changes of such character as G are necessary to make the statute which is sought to be extended suitable to the local conditions of the province. I do not think that the executive government is entitled to change the whole nature or policy underlying any particular Act or take different portions from different statutes and prepare what has been described before us as "amalgam" H of several laws. The Attorney Gcfieral has very fairly

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.l 661

admitted before us that these things would be beyond the A scope of the section itself and if such changes are made, they would be invalid as contravening the provision of sec- tion 7 of the Delhi Laws Act, though that is no reason for holding section 7 itself to be invalid on that ground." ' (P. 1004-5) B

5Copy pinpoint5. Mukharjee J. however joined with Kania CJ., Mahajan J. and Bose J. in upsetting the validity of the second part of s. 2 of Act Ill. Since this part of the judgment has been relied on by the learned counsel for the petitioners, it may also be referred to here. On this aspect, the learned Judge observed:

"It will be noticed that the powers conferred by this section c upon the Central Government are far in excess of those conferred by the other two legislative provisions, at least in accordance with the interpretation which I have attempted to put.upon them. As has been stated already, it is quite an intelligible policy that so long as a proper legislative D machinery is not set up in a particular area, the Parliament might empower an executive authority to introduce laws validly passed by a competent legislature and actually in force in other parts of the country to such area, with such modifications and restrictions as the authority thinks proper, the modifications being limited to local adjust- E ments or changes of a minor character. But this pre- supposes that there is no existing law on that particular subject actually in force in that territory. If any such law exists and power is given to repeal or abrogate such laws either in whole in part and substitute in place of the same · other laws which are in force in other areas, it would cer- F tainly amount to an unwarrantable delegation of legislative powers. To repeal or abrogate an existing law is the exer- cise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to deter- mine as to which of the laws in force in a particular·territory G are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modification as it thinks proper, that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down. Thus the H

662 SUPREME COURT REPORTS [1989] 2 S.C.R.

power of extension, which is contemplated by section 2 of ,A Part C States (Laws) Act, includes the power of introduc- ing laws which may be in actual conflict with the laws validly established and already in operation in that terri- tory. This shows how the practice, which was adopted dur- ing the early °British period as an expedient and possibly B harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into a full fledged administrative and political unit, is being resorted to in later times for no other purpose than that of vesting almost unrestricted legislative powers with regard to certain areas in the executive government. The execu- tive government is given the authority to alter, repeal or c amend any laws in existence at that area under the guise of bringing in laws there which are valid in other parts of India. This, in my opinion, is an unwarrantable delegation of legislative duties and cannot be permitted. The last por- tion of section 2 of Part C States (Laws) Act is, therefore, D ultra vires the power of the Parliament as being a delega- tion of essential legislative powers in favour of a body not competent to exercise it and to that extent the legislation must be held to be void. This portion is however severable; and so the entire section need not be declared invalid." (P. 1008-1010) E F. Das J., who upheld the validity of section 7 of Act I, section 2 of Act II and both parts of section 2 of Act Ill, rested his conclusions on the following reasoning:

(i) After expressing the opinion that the principle of non delega- F bility of legislative powers founded either on the doctrine of separation of powers or on the theory of agency had no application to the British Parliament or the legislatures constituted by an Act of the British Parliament and that, in the ever present complexity of conditions with which Governments have to deal, a power of delegation is necessary and ancillary to the exercise of legislative power and is a component G part of it, the learned Judge observed:

"The only rational limitation upon the exercise of this absolute power of delegation by the Indian Legislature as by any Dominion Legislature is what has been laid down in the several Privy Council and other cases from which rele- H vant passages have been quoted above. It is that the legisla-

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.J 663

ture must not efface itself or abdicate all its powers and give up its ~ontrol over the subordinate authority to whom it delegates its law making powers. It must not, without preserving its own capacity intact, create and arm with its own capacity a new legislative power not created or authorised by the instrument by which the legislature itself was constituted. In short, it must not destroy its own legislative power. There is an antithesis between the abdication of legislative power and the exercise of the power of legislation. The former excludes or destroys the latter. There is no such antithesis between the delegation of legislative power and the exercise of the legislative power, for however wide the delegation may be, there is nothing to prevent the legislature, if it is so minded, from, at any time,c withdrawing the matter into its own hands and exercising its law-making powers. The delegation of legislative power involves an exercise of the legislative power. It does not exclude or destroy the legislative power itself, for the legislative power is not diminished by the exercise of it. A D power to make law with respect to a subject must, as we have seen, include within its content, the power to make a law delegating that power. Having regard to entry No. 97 in y the Union List and article 248 of our Constitution, the residuary power of our Parliament is wide enough to in-

- clude delegation of legislative power of a subject-matter with respect to which Parliament may make a law. Apart from that considertion, if a statute laying down a policy and delegating power to a subordinate authority to make rules and regulations to carry out that policy is permissible then I do not see why an Act merely delegating legislative power to another person or body should be unconstitutional if the legislature does not efface itself or abandon its control over the subordinate authority. If the legislature can make a law laying down a bare principle or policy and commanding people to obey the rules and regulations, made by a subor- dinate authority, why cannot the legislature, without effac- ing itself but keeping its own capacity intact, leave the en- G tire matter to a subordinate authority and command people to obey the commands of that subordinate authority? The substance of the thing is the command which is binding and the efficacy of the rules of conduct made by the subordi- nate authority is due to no other authority than the com- mand of the legislature itself. Therefore, short of self: H

664 SUPREME COURT REPORTS [1989] 2 S.C.R.

A effacement, the legislative power may be as freely and ~ - widely delegated as the Dominion Legislature, like the "'!"- British Parliament, may think fit and choose.

xxx xxx xxx

B f.-.. 1 Ibn mhy opidn.ionL,th~ true tests off the va lidity o ~ a law enacted y 1 e 1n ian eg1s1a1ure con ernng 1eg1s1a 1ve power on a subordinate authority are : (i) Is the law within the legisla- )" • live competency fixed by the instrument creating the legis- lature? and (ii) Has the legislature effaced itself or abdicated or destroyed its own legislative power? If the .. answer to the first is in the affirmative and that to the c second in the nagative, it is not for any Court of justice to enquire further or to question the wisdom or the policy of the law.

2. Dealing with the necessity for limiting or restricting the powers of delegation the learned Judge observed:

"It is said that it will be dangerous if the legislature is permitted to delegate all its legislative functions without formally abdicating its control or effacing itself, for then the legislature will shirk its responsibility and go to sleep and peoples' life, liberty or property may be made to depend on the whims of the meanest policy officer in whom, by successive delegation, the legislative power may come to be vested. I do not feel perturbed. I do not share the feeling of oppression which some people may possibly - entertain as to the danger that may ensue if the legislature goes to sleep after delegating its legislative functions, for I feel sure that the legislators so falling into slumber will i have a rude awakening when they will find themselves thrown out of the legislative chamber at the next general election. I have no doubt in my mind that the legislature after delegating its powers will always keep a watchful eye on the activities of the persons to whom it delegates its powers of legislation and that as soon as it finds that the powers are being misused to the detriment of the public, the legislature will either nullify the acts done under such delegation or appoint some more competent authority or withdraw the matter into its own hands. There is and will always remain some risk of abuse whenever wide legislative

RAMESH BIRCH v. U.0.¹. [RANGANATifAN, J.] 665

powers are committed in general terms to a subordinate body, but the remedy lies in the corrective power of the legislature itself and, on ultimate analysis, in the vigilance of public opinion and not in arbitrary judicial fiat against the free exercise of law-making power by the legislature within the ambit fixed by the instrument of its constitution. B It is not for the court to substitute its own notions of expe- diency of the will of the legislature. This, I apprehend, is the correct position in law. In my judgment, if our law is not to be completely divorced from logic and is not to give way and surrender itself to sterile dogma, the widest power • of delegation of legislative power must perforce be conceded to our Parliament. A denial of this necessary c power will "stop the wheels of government" and we shall be acting "as a clog upon the legislative and executive departments."

3. The learned Judge also referred to the Indian legislative practice and relied on several instances of enactments such as the ones in question before the Court and observed:

"During the time of the expansion of the British posses- sions in India, small bits of territories in outlying parts of Indian were being constantly annexed by the British but on account of the smallness of such territories or the undesira- bility of their immediate merger with the established Pro- vinces it was not found to be practically possible to provide legislative Councils for these enclaves. Nor was it possible for the Governor-General in Council to enact laws for the day to day administration of these bits of territories or for all their needs. The practice, therefore, grew up for the Governor-General in Council, by a simple legislation, to confer power on the Lieutenant-Governor to extend to such territories such of the laws as were or might be in force in other parts of the territories under the Lieutenant- Governor which were considered suitable for these terri- G tories. Such practice was certainly convenient, and ever since Burah's case does not appear to have been seriously questioned. I do not say that the argument has no merit, but in the view I have taken and expressed above, I do not find it necessary, on the present occasion to base my opi- nion on this argument. H

666 SUP~EME COURT REPORTS [1989) 2 S.C.R.

G. Bose J. observed that he was not enamoured of this kind of ~- A legislation and did not like "this shirking of responsibility, for after all, the main function of the legislature is to legislate and.not to leave that to others." He, however, leaned in favour of upholding the statutes in question before the court for the following reasons.

B 1. Two of the Acts under consideration before the court were Acts of British Parliament and had to be looked at through British .·- ' ~· eyes. In the face of Queen v. Burah, [1878] 5 I.A. 173, there was no doubt that this legislation would have been upheld and it was not necessary to enquire further because no single decision of the Judicial Committee had thrown any do·ubt on the soundness of Burah's case. .. c 2. Act III however, stood on a different footing as it was an Act ~ of the Indian Parliament of 1950. One had to try to discover from the Constitution itself what concept of legislative power Parliament had in mind while framing the Constitution. The learned Judge observed:

D "Now in endeavouring to discover from the ConstitutiC)n what the Constituent Assembly thought of this grave prob\ !em. I consider it proper to take the following matters into consideration. First, it has been acknowledged in all free countries that it is impossible to carry on the government of -y a modern State with its infinite complexities and ramifica- E tions without a large devolution of power and delegation of authority. It is needless to cite authority. The proposition is self-evident. Next, the practical application of that princi- pie has been evident through the years both in India and in - other parts of the British Empire and in England itself. In the third place, even in America, Judges have had to veer F away from the rigidity of their earlier doctrine and devise * ways and me11ns for softening its rigour and have not always ~-

been able, under a barrage of words, to disguise the fact that they are in truth and in fact effecting a departure because compelled to do by the force of circumstances."

G 3. After pointing out the similarities between the Constitution ).-- and the Government of India Act of 1935, the learned Judge con- eluded:

"I prefer therefore to hold that that which The Queen v. Burah, authorised, whatever you may choose to call it, was not abrogated except in special cases.

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.] 667

I so hold for another reason as well namely, that to decide otherwise would make the Government of India an exceed- ingly difficult matter and would put back the hands of the clock. I prefer therefore to hold-and that has the logic of history behind it-that the concept of legislative power which had hitherto been accepted in India continued to hold good but that this limitation was placed upon it by the B Constitution, namely that wherever the Constitution em- powers Parliament to do a particular thing as opposed to

• legislating generally on a particular topic, there can be· no delegation. Parliament must itself act."

3. Referring to the authorities and text books cited before the Court, the learned Judge observed: c ~ "An anxious scrutiny of all the many authorities and books which were referred to in the arguments, and of the deci- sions which I have analysed here, leads me to the conclu- sion that it is difficult to deduce any logical principle from them. In almost every case the decision has been ad hoc and in order to meet the exigencies of the case then before them, judges have placed their own meaning on words and .y- phrases which might otherwise have embodied a principle of general application. I have therefore endeavoured, as far as I possibly could, to avoid the use of these disputable terms and have preferred to accept the legacy of the past - and deal with this question in a practical way. My conclu- sion is that the Indian Parliament can legislate along the lines of The Queen v. Burah, that is to say, it can leave to another person or body the introduction or application of --,.I.. laws which are or may be in existence at that time in any part of India which is subject to the legislative control of Parliament, whether those laws were enacted by Parlia- ment. or by a State Legislature set up by the. Constitution. That has been the practice in the past. It has weighty reasons of a practical nature to support it and it does not seem to have been abrogated by the Constitution." G

4. The learned Judge, however, held that second part of section 2 of Act 3 could not be held to be valid for the following reasons:

"But I also consider that delegation of this kind cannot proceed beyond that and that it cannot extend to the repe- H

668 SUPREME COURT REPORTS [1989] 2 S.C.R.

aling or altering in essential particulars of laws which are '-i,. - A already in force in the area in question. That is a matter which Parliament alone can handle.

I See no reason for extending the scope of legislative dele- gation beyond the confines which have been hallowed for B so long. Had it not been for the fact that this sort of practice was blessed by the Privy Council as far back as :>--- 1878 and has been endorsed in a series of decisions ever• • since, and had it not been for the practical necessities of the case, I would have held all three Acts ultra vires. But, so far as the latter portion of the third Act is concerned, no case . was cited in which the right to appeal the existing laws of c the land and substitute others for them has been upheld. That was tried in a South African case, Sir John Gorden ~ Sprigg v. Sigcau, [1897) A.C. 238, but the Privy Council held it could not be done, not indeed on any ground which is material here but that is the only case I know where the attempt was made and the right litigated. It is one thing to fill a void or partial vacuum. Quite another to throw out existing laws enacted by a competent authority. It is bad enough to my mind to hold that the first is not a delegation of legislative power. But as that has been held by an .'{ authority which it is impossible now to question so far as the past is concerned, I bow to its wisdom. But as to the future, I feel that a body which has been entrusted with the powers of legislation should legislate and not leave the decision of important matters of principle to other minds. I am therefore of opinion that the power upheld by the - Queen v. Burah, does not extend as far as the latter portion __.___ F of section 2 of the Part C States (Laws) Act of 1950 endeavours to carry it."

A perusal of the above judgments shows that the validity of the provisions in question were upheld on different lines of reasoning. Nevertheless all the learned Judges seem to have agreed-and, indeed, as pointed out in later decisions, it is inevitable in modem conditions-that, while Parliament should have ample and extensive 't-- powers of legislation, these should include a power to entrust some of those functions and powers to another body or authority. They also ~eem to have agreed that there should be a limitation placed on the extent of such entrustment. It is only on the question as to what this limitation should be that there was lack of consensus among the

RAMESH BIRCH v. U.0.¹. [RANGANATHAN, J.) 669