The Essential Legislative Function: In re Delhi Laws Act

In one line

A legislature may hand over the work but not the choice, and the choice is called the essential legislative function.

In the wording a student can write in an exam: a legislature may delegate legislative power so long as it does not part with its essential legislative function, which consists in the determination of the legislative policy and its formulation as a binding rule of conduct; a delegation which leaves the policy itself to the delegate is excessive and void.

The case

In re The Delhi Laws Act, 1912, AIR 1951 SC 332.

Facts. The President referred three enactments to the Supreme Court under Article 143. Section 7 of the Delhi Laws Act 1912 allowed the Provincial Government to extend to Delhi, with such restrictions and modifications as it thought fit, any enactment in force in any part of British India. Section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947 was to the same effect for Ajmer-Merwara. Section 2 of the Part C States (Laws) Act 1950 allowed the Central Government to extend to any Part C State any enactment in force in a Part A State, with such restrictions and modifications as it thought fit, and provided that provision might be made in any enactment so extended for the repeal or amendment of any corresponding law in force in the Part C State.

Held. Seven judges delivered seven opinions, and the proposition that survived them is that delegation of legislative power is permissible so long as the legislature does not part with its essential legislative function, which is the laying down of the policy of the law and its enactment as a binding rule of conduct. The first two provisions were upheld. The third was upheld except for the power to provide in an extended enactment for the repeal or amendment of a corresponding law in force in the Part C State, which was held to be a delegation of an essential legislative function and beyond the competence of the delegate.

Why it matters here. It is the foundation of the Indian law of delegated legislation, it settles that delegation is permissible in India without a constitutional provision authorising it, and it fixes the limit.

Why the case is difficult, and how to write about it

Seven judges wrote seven opinions and no two agreed on everything, so a candidate who tries to state the ratio of each will run out of time and marks. The correct approach is to state the question referred, the three enactments, the proposition that has been treated as the ratio ever since, and the one provision that fell.

The three positions, very briefly, were these. One view was that the legislature cannot delegate legislative power at all, because it is itself a delegate of the people. A second was that it may delegate anything short of abdication. The third, which prevailed, is that it may delegate the details but must retain the policy.