The Essential Legislative Function: In re Delhi Laws Act
Chapter -One
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 390 to 392 of 430
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.
The Essential Legislative Function: In re Delhi Laws Act
What the essential legislative function means
Determining the policy. What the law is for, whom it binds, what it forbids or requires.
Formulating it as a binding rule of conduct. Enacting the policy, rather than announcing an aspiration.
What is not essential is everything that follows: the machinery, the forms, the procedure, the rates within a stated band, the technical standards, the exemptions within stated criteria.
The test in practice
A court asks three questions.
Is there a policy in the Act? It may appear in the preamble, the long title, the scheme, or a section stating the objects.
Is the delegate confined by it? A power to make rules for carrying out the purposes of the Act is confined by those purposes.
Could the delegate make the law say something the legislature did not decide? If so, policy has moved.
A worked example
An Act says that no person shall carry on the business of a money lender without a licence, that the Government shall prescribe the conditions for a licence, and that the Government may by notification exempt any person or class from the Act.
The first two are unobjectionable: the policy is that money lending shall be licensed, and the conditions are machinery. The third is the problem: a power to exempt anybody from the whole Act is a power to decide to whom the law applies, which is the policy itself, and unless the Act supplies a standard for exemption it is an excessive delegation on the reasoning of the Delhi Laws Act reference.
What this does NOT mean
It does not mean a policy must be stated in a section. It may be gathered from the Act as a whole, and Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660, shows how little may suffice.
It does not mean an Act must fix every rate. Avinder Singh v. State of Punjab, AIR 1979 SC 321, upholds the delegation of a taxing rate to a municipal body.
It does not mean the doctrine is dead. Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554, struck a delegation down, and that case is worked in the next chapter.
Quick revision
Three enactments referred under Article 143: the Delhi Laws Act 1912 section 7, the Ajmer-Merwara (Extension of Laws) Act 1947 section 2, and the Part C States (Laws) Act 1950 section 2. Seven judges, seven opinions, one surviving proposition: delegation is permissible so long as the legislature does not part with its essential legislative function, which is the determination of the policy and its formulation as a binding rule. The first two provisions were upheld; the power to provide for the repeal or amendment of a corresponding law in a Part C State was struck down.
The Essential Legislative Function: In re Delhi Laws Act
Test yourself
1. What is the essential legislative function? The determination of the legislative policy and its formulation as a binding rule of conduct.
2. Which part of the reference failed? The power in section 2 of the Part C States (Laws) Act 1950 to provide, in an enactment extended to a Part C State, for the repeal or amendment of a corresponding law in force there.
3. How should a candidate handle seven opinions? By stating the question referred, the three enactments, the surviving proposition and the provision that fell, rather than attempting to summarise each opinion.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.