Ramesh
Birch & Ors Vs. Union of India & Ors [1989] INSC 136
(21 April 1989)
Rangnathan,
S. Rangnathan, S.
Mukharji, Sabyasachi
(J)
CITATION:
1990 AIR 560 1989 SCR (2) 629 1989 SCC Supl. (1) 430 JT 1989 (2) 483 1989 SCALE
(1)1489
ACT:
Punjab
Reorganisation Act, 1966: s. 87--Power to extend enactments to Union Territory
of Chandigarh--Delegation of to the Executive--Validity of--Held, not a case of
abdication or effacement of legislative power--Contains sufficient declaration
of guideline--Power to extend future laws and amendments necessary corollary.
East Punjab Urban Rent Restriction (Amendment)
Act 1985-Extension of to Union Territory of Chandigarh by Central Government
Notification dated December
15, 1986--Validity of.
Constitution
of India, Article 246(4)--Executive--Power
of adaptation by extension of laws to Union Territory of Chandigarh by
notification--Constitutional validity of.
Administrative
Law: Central Government Notification dated December 15, 1986--Extension of East Punjab Urban
Rent Restriction (Amendment) Act, 1985 to Union Territory of Chandigarh--Nature
and scope of--Whether suffers from vice of impermissible delegation.
HEAD NOTE:
Section
87 of the Punjab Reorganisation Act, 1966 empowered the Central Government to
extend, with such restrictions and modifications as it thought fit, to the
Union Territory of Chandigarh any enactment which was in force in a State at
the date of the notification. Section 89 provided for adaptation and
modification by the appropriate Government of any law made before the appointed
day, whether by way of repeal or amendment, for application in relation to the
State of Punjab or Haryana or to the Union
Territory of Himachal Pradesh or Chandigarh before the expiration of two years. The State of Punjab, of which the Union Territory of Chandigarh
originally formed part, was then governed by the East Punjab Urban Rent
Restriction Act, 1949. Section 2(j) of that Act defined 'urban area' as any
area administered by a municipal committee, a cantonment board, a town
committee, or a notified area committee or any area declared by the State
Government by notification to be an urban area for the purposes of the Act.
630
The Central Government had issued under s. 89 of the Reorganisation Act, the
Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent
Subjects) Order, 1968 with effect from 1st November, 1966 Paragraph 4 of which
directed that in all the existing laws, in its application to the Union
Territory of Chandigarh, any reference to the State of Punjab should be read as
a reference to the Union Territory of Chandigarh. In exercise of the power
conferred by s. 2(j) of the Rent Act, the Central Government had also issued on
13th October, 1972 a notification declaring the area
comprising Chandigarh to be an "urban area" for
the purpose of that Act.
This
notification was, however, quashed by the High Court in Harkishan Singh v.
Union, AIR 1975 P & H 160, on the ground that no notification had been
issued prior to 1st November, 1966 under s. 2(j) declaring Chandigarh to be an
urban area, and there was no notification under s. 87 making the 1949 Act
operative in Chandigarh with the necessary adaptation. Thereupon, Parliament
enacted the East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974.
Section
3 of that Act extended to Chandigarh the 1949 Act subject to modifications
specified in the schedule with retrospective effect from 4th November, 1972
with a view to regularies all proceedings for eviction which might have been
initiated during the interregnum. These included a modification of the
definition of 'urban areas' as including the area comprising Chandigarh, as
defined in s. 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.
In
1982 Parliament passed the East Punjab Urban Rent Restriction (Chandigarh
Amendment) Act, 1982 effecting certain amendments in the 1949 Act in its
application to Chandigarh.
In
1985 the Legislature of the State of Punjab enacted East Punjab Urban Rent Restriction (Amendment) Act, 1985 to
make the 1949 Act more effective. This amendment came into force with effect
from 16th November,
1985.
By a
notification dated 15th December, 1986 purportedly in exercise of its power
under s. 87 of the Reorganisation Act the Central Government extended to the
Union Territory of Chandigarh the provisions of the 1985 Act as in force in the
State of Punjab at the date of the notification and subject to the
modifications mentioned therein, with 631 the result that while the provisions
of the 1949 Act had been brought into force with effect from 4th November, 1972
by the Act of Parliament, the provisions of the 1985 Act had been extended to
the said territory by means of a Notification of the Central Government issued
under s. 87. The High Court upheld the validity of the said notification.
In
these appeals by special leave and the writ petitions it was contended for the
appellants/petitioners that in the purported exercise of its power under
Article 246(4) of the Constitution, the Parliament could not delegate its
legislative function in favour of an executive authority to such an extent as
to amount to an abdication of its legislative function; that by enacting s. 87,
Parliament instead of legislating for the Union Territory had left it to the
Central Government to decide for all time to come what should be the law in
force in that Territory; whereas s. 89 gives a limited transitory power to the
Central Government to adapt existing laws within a period of two years; that
such adaptation could hold the field only until they were altered, repealed or
amended by a competent legislature or authority; that s. 87 confers on the
executive government a wide power of choice, for application to Chandigarh, of
not only one legislative enactment on any subject in operation in various parts
of the country but also groups of provisions from one or more of them and thus
enforce a law which would be an amalgam of various statutory provisions; that
there was no legislative guidance as to the manner in which these choices
should be exercised by the executive; that s. 87 enables extension by
Government notification even of any legislation which might have come into
force in any part of India at any time between 1966 and the date of the
notification; that the effect, therefore, of s. 87 could be that the entire
legislation for the Union Territory in respect of any particular subject would
entirely depend upon the fancy of the Central Government without any sort of
legislative or parliamentary application of mind; that a power to exercise such
wide power could not be described as a ministerial power, it is essential
legislative power; that these facets of s. 87 clearly render it an instance of
excessive delegation by Parliament to executive amounting in effect, to the
total abdication of its legislative powers in regard to Chandigarh.
It was
further contended that s. 87, on its proper construction, permits the extension
of the laws of another State to Chandigarh only so long as there is a vacuum of.
laws
on any particular subject; that once Parliament itself steps in and assumes
legislative responsibilities in respect of that subject, a transplantation of
laws from elsewhere by extension is neither necessary nor valid; that as early
as 1974 Parliament having applied its mind and legislated in respect of
landlord632 tenant matters for the Union Territory, it was for Parliament and
Parliament alone to legislate on the subject thereafter; that by purporting to
extend by an executive notification under s. 87 the provisions of the 1985 Act
to Chandigarh what the Central Government had really done was to modify or
amend an existing parliamentary law operating already in the State, which was
impermissible, and that the notification dated 15th December, 1986 having thus
exceeded the purview of s. 87 it was, therefore, ultra vires.
Dismissing
the appeals and the writ petitions,
HELD:
1.1 Section 87 of the Punjab Reorganisation Act, 1966 should be interpreted
constructively so as to permit its object being achieved rather than in a
manner that will detract from its efficacy or purpose. So construed, its
validity has to be upheld. [683C]
1.2 It
is impossible to carry on the government of a modern State with its infinite
complexities and ramifications without a large devolution of power and
delegation of authority. While Parliament should, therefore, have ample and
extensive powers of legislation, these should include a power to entrust some
of those functions and powers to another body or authority. Such entrustment,
however, could not be so extensive as to amount to abdication or effacement.
The legislatures cannot wash their hands off their essential legislative
function of laying down the legislative policy with sufficient clearness and
enunciating the standards which are to be enacted into a rule of law. This
function cannot be delegated. What can be delegated is only the task of subordinate
legislation which is by its very nature ancillary to the statute which
delegates the power to make it and which must be within the policy and
framework of the guidance provided by the legislature. [668G-H; 669C-D]
1.3
Section 87 of the Reorganisation Act did not cross the line beyond which
delegation amounts to abdication and self-effacement. It was not the power to
make laws that was delegated. The provision only conferred a power on the
executive to determine, having regard to the local conditions prevalent in the Union Territory, which one of several laws, all approved by one or the
other of the legislatures in the country, would be the most suited to Chandigarh. The power given as such was more
in the nature of ministerial than in the nature of legislative power because
all that the Government had to do was to study the laws and make selection out
of them. Thus viewed, it was not really an unguided and arbitrary power.
[675F-G] 633 In re Delhi Laws Act, [1951] SCR 747 applied.
Registrar
of Cooperative Societies v. Kunhambu [1980] 2 S.C.R. 260; R. v. Burah, [1878]
51.A. 178; Jatindra Nath Gupta v. The Province of Bihar & Ors., [1949] FCR
595;
Harishankar
Bagla & Anr. v. The State of Madhya Pradesh, [1955] 1 SCR 380; Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna
& Anr., [1955] 1 SCR 290; Sardar Inder Singh v. The State of Rajasthan, [1957] SCR 605; Pandit Banarsi Das
v. The State of Madhya
Pradesh & Ors.,
[1959] SCR 427; The Edward Mills Co. Ltd. Beawar v. The State of Ajmer, [1955] 1 SCR 735; The Western
India Theatres Ltd. v. Municipal Corporation of the City of Poona, [1959] 2 Supp. SCR 71; Hamdard Dawakhana
(Wakf) Lal Kuan v. Union of India, [1960] 2 SCR 671; Vasantlal Maganbhai Sanjanwala v. The
State of Bombay & Ors., [1961] 1 SCR 341; Jyoti Pershad v. Administrator
for the Union Territory of Delhi, [1962] 2 SCR 125; Shama Rao v. The
Union Territory of Pondichery, [1967] 2 SCR 650; Mohammad Hussain Gulam
Mohammad & Anr. v. The State Of Bombay & Anr. [1962] 2 SCR 659; Corporation
of Calcutta & Anr. v. Liberty Cinema, [1965] 2 SCR 477, Devi Das Gopal Krishan
& Ors. v. State of Punjab & Ors., [1967] 3 SCR 557;
Municipal Corporation of Delhi v. Birla Cotton, Spinning &
Weaving Mills, Delhi & Anr., [1968] 3 SCR 251; Sita Ram Bishambhar Dayal v.
State of U.P. & Ors., [1972] 2 SCR 141; Hira Lal Rattan Lal etc. etc. v.
State of U.P. & Anr. etc. etc., [1973] 2 SCR 502; Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v.
The Ass,. Commissioner of Sales Far & Ors., [1974] 2 SCR 879; M.K. Papiah
& Sons. v. The Excise Commissioner & Anr., [1975] 3 SCR 607; Brii Sundar
Kapoor v. First Additional District Judges, [1980] I SCC 651 and Sprigg. v. Sigcau,
[1897] AC 238, referred to.
2.1
Section 87 was quite valid even on the policy and guidelines theory. It is not
necessary that the legislature should "dot all the t's" and cross all
the t's" of its policy. It is sufficient if it gives the broadest
indication of a general policy of the legislature. [673E-F]
2.2
The policy behind s. 87 seems to be that it was necessitated by changes
resulting In territories coming under the legislative jurisdiction of the
Centre. These were territories situated In the midst of contiguous territories
which had a proper legislature. They were small territories falling under the
legislative jurisdiction of Parliament, which had hardly sufficient time to
look after the details of all their legislative needs and requirements. To
require or expect Parliament to legislate 634 for them would have entailed a
disproportionate pressure on its legislative schedule. It would also have meant
the unnecessary utilisation of the time of a large number of members of
Parliament for, except the few members returned to Parliament from the Union Territory none else was likely to be interested in such legislation.
In such a situation the most convenient course of legislating for them was the
adaptation by extension of laws in force in other areas of the country. [673F;
674A-B]
2.3
There could have been no objection to the legislation if it had provided that
the laws of one of the contiguous States should be extended to Chandigarh. But such a provision would have
been totally inadequate to meet the situation for two reasons. There might have
been more than one law in force on a subject in the contiguous States-say one
in Punjab, one in PEPSU and one in Himachal Pradesh etc.-and Parliament was
anxious that Chandigarh should have the benefit of that one of them which would
most adequately have met the needs of the situation in that territory. Or,
again, there might have been no existing law on a particular subject in any of
the continuous 3teas which was why the power had to include the power of
extending the laws of any State of India. While in a very strict sense this
might have involved a choice, it was in fact, and in general run of cases. only
a decision on suitability for adaptation rather than choice of a policy. It was
a delegation not of policy, but of matters of detail for a meticulous appraisal
of which Parliament had no time. Even if it be assumed that this involved a
choice of policy, the restriction of such policy to one that was approved by
Parliament or a State Legislature constituted a sufficient declaration of
guideline within the meaning of the "policy-guideline theory." [675GH;
676A-C] In re Delhi Laws Act, [1951] SCR 747 referred to.
3.
Once it is held that the delegation of a power to extend a present existing law
is justified, a power to extend future laws is a necessary corollary. If
Parliament had no time to apply its mind to the existing law initially to be
adapted, it could have hardly found time to consider the amendments from time
to time engrafted on it in the State of its origin. It would then seem only
natural as a necessary corollary that the executive should be permitted to
extend future amendments to those laws as well. [676D-E] In re Delhi Laws Act,
[1951] SCR 747 referred to.
4.1
The concept of vacuum is as much relevant to a case where there is absence of a
particular provision in an existing law as to a case 635 where there is no
existing law at all in the Union Territory on a subject. For instance, if
Parliament had not enacted the 1974 Act but had only enacted an extension of
the Transfer of Property Act to Chandigarh, it could not have been said that a
subsequent notification cannot extend the provisions of the 1949 Act to Chandigarh
simply because the subject of leases was governed by the Transfer of Property
Act, which had been already extended and there, was, therefore, no
"vacuum" left which could be filled in by such extension. Again,
suppose, initially, a Rent Act was extended by Parliament which did not contain
a provision regarding one of the grounds on which a landlord could seek evictionsay,
one enabling the owner to get back his house for reoccupation-and then the
Government thought that another enactment containing such a provision also be
extended, it could not perhaps be said that the latter was a matter on which
there was no legislation enacted in the Territory and that the extension of the
latter enactment only filled up a void or vacancy. Again, suppose the
provisions of a general code like. say, the Code of Civil Procedure were
extended to the Union Territory. In that case s.87 could not be construed so as to preclude
the extension of a later amendment to one of the rules to one of the orders of
the C.P.C. merely on the ground that it will have the effect of varying or
amending an existing law. There is no-warrant to thus unduly restrict the scope
of a provision like s. 87. [682D-H]
4.2
The extension of an enactment which makes additions to the existing law would
thus also be permissible under s. 87 of the Reorganisation Act, so long as it
does not, expressly or impliedly repeal or conflict with, or is not repugnant
to, an already existing law. [683A-B] In the instant case, the extension of the
East Punjab Urban Rent Restriction (Amendment) Act, 1985 to the Union Territory
of Chandigarh only added provisions in respect of aspects not covered by the
East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974 and in a
manner not inconsistant therewith. [683F] Lachmi Narain v. Union of India,
[1976] 2 SCR 795 and Hari Shankar Bagla v. State of Madhya Pradesh, [1955] 1 SCR 380 referred to.
5. A
notification while extending a law can make only such modifications and
restrictions in the law extended as are of an incidental, ancillary or
subservient nature and as do not involve substantial deviations therefrom. In
the instant case, the 1985 Act has been extended as 636 it is, with only very
minor modifications. The notification dated 15th December. 1986 was, therefore,
quite valid and not liable to be struck down. [684E-F] Lachmi Narain v. Union
of India, [1976] 2 SCR 785; referred to and Kewal Singh v. Lajwanti, [1980] 1
SCR 854;
distinguished.
6. Any
addition, however, small does amend or vary the existing law but so long as it
does not really detract from or conflict with it, there is no reason why it
should not stand alongside the existing law. In the instant case the
modifications introduced by the 1985 Act in the 1949 Act, as were reenacted by
the 1974 Act were minor modifications and restrictions. They do not incorporate
substantial changes in the scheme of the pre-existing law. Both sets of
provisions can stand together and effectively supplement each other.
[684F,
H] Hari Shankar Bagla v. State of Madhya Pradesh, [1955] 1 SCR 380 and Lachmi Narain v. Union of India,
[1976] 2 SCR 795 referred to.
7.
There is a very crucial difference between s. 87 and 89 in as much as within
the period of two years mentioned in s. 89, the Central Government could while
adapting preexisting laws make any changes by way of repeal or amendment. But
s. 87, though capable of enforcement indefinitely, confers a more limited
power. It can be invoked only to extend laws, already in existence, to the Union Territory and cannot make any substantial changes therein. The power
under s. 89 is limited in time but extensive in scope, while under s. 87 the
power is indefinite in point of duration but very much more restricted in its
scope. Therefore, resort to s. 87 did not render s. 89 redundant. [686E-F]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2448 of 1989 etc.
From
the Judgment and Order dated 25.5.1988 of the Punjab and Haryana High Court in C.W.P. No. 736 of 1987.
G. Ramaswamy,
Additional Solicitor General, Harbhawan Walia, Kapil Sibal, M.S. Gujral, Anil
Dev Singh, M.R. Sharma, D.V. Sehgal, Naresh Bakshi, R. Bana, Jitendra Sharma,
S.M. Satin, S.K. Mehta, D. Mehta, Atul Nanda, P.N. Pun, B.B.
Sawhney,
M.C. Dhingra, A.K. Gupta, T.C. Sharma, Mrs. Sushma Suri, Ms. Indu Goswami, R.S.
Yadav, Manoj Prasad, Manoj Swarup M.L. Verma, S. Bagga, D.S. Gupta, B.R. Kapur,
Anis Ahmad Khan, S. Sehgal and 637 N.K. Aggarwal for the appearing parties.
The
Judgment of the Court was delivered by RANGANATHAN, J. This is a batch of
appeals and writ petitions challenging the validity of a notification issued
on.15.12.1986 by the Central Government under section 87 of the Punjab Reorganisation
Act (Act of Parliament No. 31 of 1966), hereinafter referred to as 'the Reorganisation
Act'.
By
this notification, the Central Government 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 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 directly filed in this
Court challenging the validity of the notification. In view 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 dispose of the appeals and the writ
petitions by this common judgment.
Section
87 of the Reorganisation Act is in the following terms:
"87.
Power to extend enactment to Chandigarh--The
Central 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 enactment 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
with the provisions of Section 7 of the Delhi Laws Act, 19 12 and Section 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 1: The Provincial Government may, by 638 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
part of British India at the date of such
notification." "Section 2 of Act H: The Central Government may, by
notification in the official Gazette, extend to the province of Ajmer Marwara with such restrictions and modifications 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 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 111: The Central Government may, by 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 decision 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 delegation. 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.
When
the Constitution of India came into force on 26th January, 1950, the component
units of the Indian Union were grouped into four 639 types of territories.
There Were nine States in Part A (one of which was 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 Nicobar
Islands, in Part D. At this stage, although several of the former Indian States
had acceded to the Indian Union, the process of their integration as component
units of the Indian Union was not complete. Some units 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 recommendations of the States Reorganisation
Commission in 1955, the Constitution was amended to classify the units of the
Indian Union into States and Union Territories.
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 carrying out certain
territories from the State of Punjab.
Certain
hill areas of the Punjab were merged with the adjoining
Union Territory of Himachal Pradesh. A new 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 delimitation of the
territories of the States of Punjab and Haryana and the Union Territories of Himachal Pradesh and Chandigarh. One of the important aspects of the reorganisation, in respect of
which specific 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 following terms:
Section
87: Power to extend enactments to Chandigarh set out earlier.
Section
88: Territorial extent of laws-The Provisions 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 1 the appointed day.
640
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 and modifications of the law, whether by way of repeal or
amendment, as may be necessary or expedient, and thereupon every such law shall
have effect subject to the adaptations and modifications so made until altered,
repealed or amended by a competent Legislature or other competent authority.
Section
90: Power to construe laws-(1) Notwithstanding that no provision or
insufficient provision has been made 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 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 necessary or proper in regard to the
matter before the court, tribunal or authority.
(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 Punjab and Haryana.
The
dispute in this batch of cases is regarding the applicability of certain rent
laws to the Union Territory of Chandigarh. The territories 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 the State of Punjab. Section 2(j) of that Act defined 'urban area' as any area administered
by a municipal committee, a cantonment board, a town committee or a notified
area committee or any area 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 (Chandigarh) (Adaptation of Laws on State and
Concurrent Subjects) Order, 1968 w.e.f. 641 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 to the State of Punjab should be read as
a reference to the Union Territory of Chandigarh and para 2(1)(b) of the Order
defined the expression 'existing law'. The Central Government, in exercise of
the power conferred by section 2(j) of the principal Act, issued on 13.10.72 a
notification declaring the area comprising Chandigarh to be 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
Punjab & 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. 2(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 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 rendered on 9.10.1974.
Two
courses were open to the Government to set right the lacunae 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 Parliament 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 if the
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 rendered nonmaintainable 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:
"Section
3: Extension of East Punjab Act 111 of 1949 to Chandigarh-Notwithstanding
anything contained in any judgment, decree or order of any court, the Act
shall, subject to the 642 modifications specified in the Schedule, be in force
in, and be deemed to have been in force with effect from 4th day of November,
1972 in the UniOn 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." Three features of the
above legislation may be emphasised at this stage. The first was that, though
this purported to extend the principal 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
provisions of the principal Act. The second was that the Act was given
retrospective effect from 4.11.72, the date on which the previous notification
under section 89 had been gazetted with a view to regularise all proceedings
for eviction which might have been initiated during the interregnum. Thirdly,
the principal Act was re-enacted subject to the modifications specified in the
Schedule. These included a modification of the definition of 'urban area' as
including the area comprising Chandigarh as defined in section 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.
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 President of India promulgated
Ordinance 14 of 1976 on 17.12.76. By this Ordinance, the 1949 Act, as in force
in Chandigarh, was amended in the following
respects:
(a) In
section 13, an exlanation and subsection (4A) were introduced;
(b)
New sections 13A. 18A and 18B were inserted;
(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 added. This ordinance was allowed to lapse and
was not enacted into law thereafter.
643
(ii) In 1982, Parliament passed the East Punjab Rent 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 a
reference to "Punjab". The second was the
substitution of a new definition of "non-residential building" in s.
2(d) of the Act. This amendment Act did not, however, incorporate the
amendments earlier 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 amendments
as well.
(iii)
In 1985, the provisions of the principal Act were amended in their application
to the State of Punjab. The legislature 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
18B and a new Second Schedule and to make certain amendments 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. 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 section
87 of the Reorganisation Act. By this notification the Central Government
extended to the Union Territory of Chandigarh the provisions of the 1985 Act as
in force in the State of Punjab at the date of the notification (i.e.
to say as on 15.12.1986) and subject to the modifications mentioned therein.
The resultant position is that while the provisions of the principal Act had
been brought into force in the 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 permissible and valid in law.
644 Ex
facie, the impugned notification appears to be intra vires s. 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 construction thereof, the notification
travels beyond the area of extension permitted Under 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 Swarup boldly
concentrated on attacking the validity of s. 87 while also lending support to
Sri Gujral's principal argument as an argument in the alternative. 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 Constitution) 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 assembly 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 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:
(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 with s. 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 provision intended to enable the
Central Government to tide over the 645 difficulties caused by the sudden
creation of a new territory and the 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 amended by a competent legislature or authority.
But s.
87 empowers the Central Government to extend any legislation to Chandigarh at any time: even today, twenty
three years after the 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 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 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 provisions
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 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 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 646 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 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 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 Central Government without any sort of legislative or
parliamentary application of mind, except the fact that some legislature in
some part of the country has considered the law good enough for the conditions
prevailing in that territory. Learned counsel contends that these facets of
section 87 clearly render it an instance of excessive delegation by Parliament
to executive amounting, in effect, to the total abdication by Parliament of its
legislative powers in regard to Chandigarh.
The
problem 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 an abundance of authority, of even larger Benches
of this Court. The judgments in R.v. Burah, [1878] 51.A. 178; Jatindra Nath
Gupta, [1949] FCR 595; the Delhi Laws Act case, [1951] SCR 747; Hari Shankar Bagla,
[1955] 1 SCR 380; Rajnarain Singh, [1955] 1 SCR 290; Sardar Inder Singh, [1957]
SCR 605; Banarsi Das, [1959] 1 SCR 427; Edward Mills, [1959] 1 SCR 735; Western
India Theatres, [1959] Supp 2 SCR 71; Hamdard Dawakhana, [1960] 2 SCR 671; Vasantlal
Maghanbhai, [1961] 1 SCR 341; Jyoti Prashad, [1962] 2 SCR 125; Shama Rao,
[1962] 2 SCR 650; Mohammad Hussain Gulam Mohammad, [1962] 2 SCR 659; Liberty
Cinema, [1965] 2 SCR 477; Devi Dass, [1967] 3 SCR 557; Birla Cotton, [1968] 3
SCR 251; Sitaram Bishambar Dayal, [1972] 2 SCR 141; Hiralal Ratanlal, [1973] 2
SCR 502; Gwalior 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 examination of the several opinions
expressed in these cases. Suffice it to say that these decisions have been
interpreted as holding that the power of 647 Parliament to entrust legislative
powers to some other body or authority 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, Parliament cannot "abdicate" its legislative functions in favour
of such authority.
Doubts
have been expressed in some quarters as to the correctness 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] 51.A.
178
and adhered to by it ever since. This view is that, given the present system of
Parliamentary democracy, the extensive range of governmental functions today
and the kind and quantity of legislation which modern public opinion requires,
the legislatures under the Constitution 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 as they may choose, so long 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:
(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.
(2)
The Privy Council, ever since its leading decision in R. v. Burah, [1878] 51.A.
178,
has taken this view consistently. This is also the view to which American and
Australian courts have veered round in recent years.
(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.
648
(4) The magnitude of the controversies raised on this issue is so great that
legislations, if invalidated on this ground, have to be invariably validated
with retrospective effect. The result is that, on the one hand, the
implementation of important legislations is held up due to interim orders for
the long period of pendency of the litigation and even the final determination,
on the other, achieves no practical result. In short, the consideration of such
issues is practically a waste of judicial time.
5. The
doctrine is based on the theory that it is the legislature 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 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 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 taxing powers has been upheld
by drawing on non-existent distinctions 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, [1962] 2 SCR 650 and the
decision in the Delhi Laws Act, case upholding the delegation to the executive
of the power to extend 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 decision in Rajnarain.
(9)
The Indian Statute book contains any number of legislations, 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.
649
(10) Judicial dicta abound where it has been pointed out 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 authority and discretion it had vested in the delegate, it cannot be said
to have abdicated its legislative functions.
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 formulated in broad terms, though difficult of
practical application to 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 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
is what the Preamble to our Constitution says and that is what is elaborated in
the two vital chapters of the Constitution 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. Executive activity in the field of
delegated or subordinate legislation 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 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 objectives and fundamental issues
instead of technical and situational intricacies which are better left to
better equipped full time expert executive bodies and specialist public 650
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 Legislatures 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 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 entrusted to them by the Constitution,
subject to the limitations imposed by the Constitution itself. The power to
legislate carries with it the power to delegate. But excessive delegation may
amount to abdication. Delegation unlimited may invite despotism uninhibited. So
the theory has been evolved that the legislature cannot delegate its essential
legislative function. Legislate it must by laying down policy and principle and
delegate it may to fill in detail and carry out policy.
The
legislature may guide the delegate by speaking through the express provision
empowering delegation 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 permissible 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 those statutes which are designed to further
the Directive Principles of State Policy." 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 legislature 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 651 view cannot be
watered down by the opinion of a writer, however eminent he maybe, nor by
observations in foreign judgments made in the context of the statutes with
which they were dealing." If this be the consistent view of this court on
this thorny issue, Sri Manoj Swarup says, section 87 clearly offends the
principle so enunciated, particularly, when one considers the extremely broad
sweep of its language. In empowering the executive to extend laws to Chandigarh
to the contents of which Parliament has not applied its mind and further in
allowing the executive to exercise a choice among several such existing and
future laws, Parliament has in fact abdicated its essential legislative
functions in relation to the Union Territory in favour of the Central Government
and given the go-by to the elaborate procedures and safeguards enacted in the
Constitution in regard to the process of legislation by Parliament or a State
Legislature.
There
would have been considerable force in this contention had it not been for the
decision in the Delhi Laws Act case 195 1 SCR 747. As has been pointed out
earlier, that decision clearly upheld the validity of s. 7 of Act I, section 2
of Act II and the first part of s. 2 of Act III which did, in relation to
Delhi, Ajmer-Marwara and Part C States, exactly that which has been done by s.
87 in relation to Chandigarh despite the fact that some of the judges struck a
different line from R.v. Burah, [1878] 51.A 178, refused to accept the theory
of absolute freedom for Parliament to delegate its powers and enunciated the
"policy-guideline" theory which has been taken up in subsequent
decisions of this Court. It is said that there are some difficulties in
straightaway treating Delhi Laws Act, [1951] SCR 747 as conclusive of the issue
before us. In the first place, that was a decision which reflected the advisory
opinion of this Court in a reference made by the President under Art. 143(1) of
the Constitution which, technically speaking, is not a binding precedent.
Secondly, although five of the seven learned Judges upheld the validity of the
provisions referred to above, it is difficult to clearly formulate the
principle which emerges therefrom, for, as Patanjali Sastri C.J. observed in Kewal
Raning Rawat v. State, [1952] SCR 435:' "While undoubtedly certain
definite conclusions were 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 different and it is difficult to say
that any particular principle has been laid down by the majority which can be
of assistance in the determination of other cases".
652
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 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 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
relevant 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 Lordship 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 effacement 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:
1.
Even American Courts, which are fiercely opposed to uncanalised delegation of
legislative power to the executive, have been compelled, by practical
considerations, to engraft numerous exceptions 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 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)
2. The
true import of the rule against delegation is this:
"This
rule in a broad sense involves the principle underlying the maxim, delegatus
non potest delegate, 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
Legislature 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) 3. 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.
654
(3) It cannot abdicate its legislative functions, and therefore 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 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. Therefore, there are only two main
checks in this country on the power of the legislature to delegate, 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)
4. The
learned Judge recognised that the impugned provisions, at first sight, did
appear to be very wide--they were of the same sweeping nature as s. 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 laws had to be enacted for them. It is
clear that the legislatures 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 matter should be entrusted to an authority which 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
policy, defined a standard, and 655 directed the authority chosen to act within
certain prescribed 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 circumstances of the case that was the best way to legislate on the
subject and it so legislated. It will be a misnomer to 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 applicable to the State or States concerned. What is even more
important is that in each case the agency selected was not empowered to enact
laws,' but it could only adapt and extend laws enacted by responsible and
competent legislature. Thus, the power given to the Governments in those Acts
was more in the nature of ministerial than in the nature of legislative power.
The power given was ministerial, 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 unwarranted 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 had been empowered to do
under the impugned legislations was not to enact "new laws" but only
"to transplant" to the territory concerned laws operating in other
parts 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 was made only as a matter of caution and to ensure the
superintendence of Parliament, for the laws were good laws until they were
repealed, altered or varied by Parliament. If the Privy Council have correctly
stated the principle that the legislature in enacting subordinate or
conditional legislation does not part with its perfect control and 656 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] 195 US 138, where delegation by Congress of the power to
legislate for the Phillipine Islands was held valid." (p. 843)
6.
Indian legislation, past and present, contains numerous instances of enactments
where under 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 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 legislature 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 intended.7" (p. 846)
7. 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 sometimes the subject on which it has to legislate
is of such a 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 complex 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
contingencies 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 interests likely to be affected by a particular law, make 657 actual
experiments when necessary, and utilize the results of its investigations and
experiments in the best way possible. There may also arise emergencies and
urgent situations requiring prompt action and the entrustment of large powers
to authorities who have to deal with the various situations as they arise.
xxx xxx
xxx xxx It is obvious that to achieve the objects which were intended to be
achieved by these Acts, they could not have been flamed in any other way than
that in which they were flamed". (p. 851-2) 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 quantitatively 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 exercise 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
required. In the absence of a constitutional inhibition, delegation of
legislative power, however extensive, could be made so long as the delegating
body retains its own legislative 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 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 to
delegate is expressly given by the Constitution--and it has not been--a
legislature cannot 658 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.
E. To
turn next to the views of Mukharjea J. the learned Judge considered the
following aspects:
1. The
learned Judge did not accept the principle that an unlimited right of
delegation is inherent in the legislative power itself. He observed:
"This
is not warranted by the provisions of the Constitution 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 legislature must retain in
its own hands the essential legislative 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 subordinate 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 standard laid down the courts cannot and should not interfere
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 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 legislative powers to the executive
government, the learned Judges said:
"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
legislation as discussed above and no question of delegation would really
arise.
The
position would not be materially 659 different, if instead of framing a
statute, the legislature had specified one or more existing 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 operation 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 judgment 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
well and that too with the modifications and 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 essential legislative
power consists in formulating the legislative policy and enacting it into a binding
rule of law. With the merits of the legislative policy, the 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 no vagueness or indefiniteness in the
formulation of the policy, 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 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 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 660 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 19 12 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 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 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 'modifications and restrictions' as it thinks fit. The word
"restriction" does not present much difficulty. It connotes
limitation imposed 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 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 substantial alteration. The dictionary meaning of
the expression "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 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"
of several laws. The Attorney General has very fairly 661 admitted before us
that these things would be beyond the scope of the section itself and if such
changes are made, they would be invalid as contravening the provision of
section 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)
5. 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 III. 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 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 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 adjustments or changes of a
minor character. But this presupposes 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 certainly amount to an unwarrantable delegation of legislative powers.
To repeal or abrogate an existing law is the exercise 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
determine as to which of the laws in force in a particular territory 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 662 power of extension, which is
contemplated by section 2 of Part C States (Laws) Act, includes the power of
introducing laws which may be in actual conflict with the laws validly
established and already in operation in that territory. This shows how the practice,
which was adopted during the early British period as an expedient and possibly
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 executive government is given
the authority to alter, repeal or 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 portion of section 2 of Part C States (Laws) Act is, therefore, ultra vires
the power of the Parliament as being a delegation 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) F. Das
J., who upheld the validity of section 7 of Act 1, section 2 of Act II and both
parts of section 2 of Act III, rested his conclusions on the following
reasoning:
(i) After
expressing the opinion that the principle of non delegability of legislative
powers rounded 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 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 relevant passages
have been quoted above. It is that the legisla663 ture must not efface itself
or abdicate all its powers and give up its control 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, 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 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 the Union List and article 248 of our Constitution,
the residuary power of our Parliament is wide enough to include 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 1 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 subordinate authority, why cannot the legislature,
without effacing itself but keeping its own capacity intact, leave the entire
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 subordinate
authority is due to no other authority than the command of the legislature
itself. Therefore, short of self664 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 In my opinion, the true tests of the validity of a law enacted by the
Indian Legislature conferring legislative power on a subordinate authority are:
(i) Is the law within the legislative competency fixed by the instrument
creating the legislature? 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 second in the negative, 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 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 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.
It is
not for the court to substitute its own notions of expediency of the will of
the legislature. This, 1 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 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 possessions 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 undesirability of their
immediate merger with the established Provinces 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 territories.
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 opinion on this argument.
666 G.
Bose J. observed that he was not enamoured of this kind of 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.
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 doubt on the soundness of Burah's
case.
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:
"Now
in endeavoring to discover from the Constitution what the Constituent Assembly
thought of this grave problem. 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 a modern State
with its infinite complexities and ramifications 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 principle 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 away from the rigidity of their earlier
doctrine and devise ways and means 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."
3.
After pointing out the similarities between the Constitution and the Government
of India Act of 1935, the learned Judge concluded:
"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.
667 I
SO hold for another reason as well namely, that to decide otherwise would make
the Government of India an exceedingly 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 Constitution, namely that wherever the Constitution empowers
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:
"An
anxious scrutiny of all the many authorities and books which were referred to
in the arguments, and of the decisions which I have analysed here, leads me to
the conclusion 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 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 conclusion 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 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 Parliament 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."
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 repe668 aling or altering in essential particulars of
laws which are 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 delegation beyond the confines
which have been hallowed for 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 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 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 modern conditions--that,
while Parliament should have ample and extensive powers of legislation, these
should include a power to entrust some of those functions and powers to another
body or authority. They also seem 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
669 judges. All of them agreed that it could not be so extensive as to amount
to "abdication" or "effacement". Some thought that there is
no abdication or effacement unless it is total i.e. unless Parliament
surrenders its powers in favour of a "parallel" legislature or loses
control over the local authority to such an extent as to be unable to revoke
the powers given to, or to exercise effective supervision over, the body
entrusted therewith. But others were of opinion that such
"abdication" or "effacement" could not even be partial and
it would be bad if full powers to do everything that the legislature can do are
conferred on a subordinate authority, although the legislature may retain the
power to control the action of such authority by recalling such power or
repealing the Acts passed by the subordinate authority. A different way in
which the second of the above views has been enunciated--and it is this view
which has dominated since--is by saying that the legislatures cannot wash their
hands off their essential legislative function. Essential legislative function
consists in laying down the legislative policy with sufficient clearness and in
enunciating the standards which are to be enacted into a rule of law. This
cannot be delegated. What can be delegated is only the task of subordinate
legislation which is by its very nature ancillary to the statute which
delegates the power to make it and which must be within the policy and
framework of the guidance provided by the legislature.
It is
suggested for the petitioners that, since the reasonings of the learned Judges
are so different, we cannot derive any assistance from the Delhi Laws Act case
and should therefore ignore it. We are unable to accept this suggestion. We
think, with respect, that Bose J. was right when he pointed out in Rajnarain
Singh's case (1955 1 SCR 298) and his summary in the case, of the conclusions
arrived at in the Delhi Laws Act case has consistently been referred to with
approval in later decisions of this Court as an authoritative exposition--that:
"Because
of the elaborate care with which every aspect of the problem was examined in
that case, the decision has tended to become diffuse, but if one concentrates
on the matters actually decided and forgets for a moment the reasons given, a
plain pattern emerges leaving only a narrow margin of doubt for future
dispute." If we apply this formula, whatever reasoning one adopts, the
answer to the question posed before us has to be in favour of upholding the
constitutional validity of s. 87. One may doubt the wisdom of attempting to
trace a common ratio decidendi from such divergent views but it 670 seems
equally illogical to altogether ignore a clear conclusion arrived at by the
majority of judges only because they arrived at that conclusion by different
processes of reasoning. One would rather have thought that a conclusion stands
more fortified when it can be supported not on one but on several lines of
reasoning. At least for an identical problem, the final answer, we think,
should be the same. This should particularly be so when we remind ourselves
that the Delhi Laws Act case arose because, soon after India became a Republic,
the Government, envisaging the necessity of having recourse to legislation of
this type in the context of the changing topography of India, took the
precaution of seeking the advice of the Supreme Court for its future guidance
and that they have acted upon the answers propounded by the Supreme Court in
enacting a provision of this type. In this situation we find ourselves unable
to accept the contention that, after a lapse of thirty-eight years, we should
declare that the Delhi Laws Act case decided nothing or, as counsel euphimistically
put it, that it should be confined to its own facts.
It is
contended that the above line of approach is one of expediency rather than
logic and that, unless one can extract a principle of general application from
the Delhi Laws Act case, it will not be helpful as a precedent. Even if this is
taken to be the proper approach, an answer to the contention is furnished by Shama
Rao [1955] 2 SCR 650, on which considerable reliance was also placed on behalf
of the petitioners. The facts in that case were that the legislative assembly
for the Union Territory of Pondicherry passed a Sales Tax Act (10 of 1965) in
June, 1965. Under s 1(2) of the Act, it was to come into force on such date as
the Pondicherry Government may by notification, appoint. S. 2(1) of the Act
provided that the Madras General Sales Tax Act, 1959 as in force in the State
of Madras immediately before the commencement of the Pondicherry Act, shall be
extended to Pondicherry subject to certain modifications. The Pondicherry
Government issued a notification on March 1, 1966 appointed April 1, 1966 as the date of the commencement of
the Pondicherry Act. Prior to the issue of the notification, however, the
Madras Legislature had amended the Madras Act and consequently it was the
Madras Act as amended upto April 1, 1966,
which was brought into force in Pondicherry. When the Act thus came into force, the petitioner was
served with a notice to register himself as a dealer and thereupon he filed a
writ petition challenging the validity of the Act.
It was
contended for the petitioner that the Act was void and was a still-born
legislation by reason of the Pondicherry Legislature having abdicated its
legislative functions in favour of the Madras State Legislature. It was argued
that such abdica671 tion resulted from the wholesale adoption of the Madras Act
as in force in the State of Madras immediately before the commencement of the Pondicherry
Act, as s. 2(1) read with s. 1(2) meant that the legislature adopted not only
the Madras Act as it was when it enacted the Pondicherry Act but also such
amendment or amendments in the Madras Act which might be passed by the Madras
State Legislature upto the time of commencement of the Act i.e. upto April 1,
1966. On the other hand, counsel for the respondent relied on the decision of a
majority of judges (5:2) in the Delhi Laws Act case "that authorisation to
select and apply future Provincial Laws was not invalid" as had been
clearly brought out in the summary of the Delhi Laws Act Case attempted by Bose
J. in Rajnarain Singh's case, [1955] 1 SCR 290. After a brief reference to the
history of the doctrine of abdication contended for by the petitioner and a
discussion of the Delhi Laws Act Case, Shelat J., with whom Subba Rao, CJ. and Mitter
J. agreed, accepted the contention of the petitioner.
He
observed:
"The
question then is whether in extending the Madras Act in the manner and to the
extent it did under sec. 2(1) of the Principal Act the Pondicherry legislature abdicated its
legislative power in favour of the Madras legislature. It is manifest that the Assembly refused to perform its
legislative function entrusted under the Act constituting it. It may be that a
mere refusal may not amount to abdication if the legislature instead of going
through the full formality of legislation applies its mind to an existing
statute enacted by another legislature for another jurisdiction, adopts such an
Act and enacts to extend it to the territory under its jurisdiction. In doing
so, it may perhaps be said that it has laid down a policy to extend such an Act
and directs the executive to apply and implement such an Act. But when it not
only adopts such an Act but also provides that the Act applicable to its territory
shall be the Act amended in future by the other legislature, there is nothing
for it to predicate what the amended Act would be. Such a case would be clearly
one of non-application of mind and one of refusal to discharge the function
entrusted to it by the instrument constituting it. It is difficult to see how
such a case is not one of abdication or effacement in favour of another
legislature at least in regard to that particular matter.
But
Mr. Setalvad contended that the validity of such legislation has been accepted
in Delhi Laws Act's case and 672 particularly in the matter of heading No. 4 as
summarised by Bose J. in Raj Narain Singh's case. In respect of that heading,
the majority conclusion no doubt was that authorisation in favour of the executive
to adopt laws passed by another legislature or legislatures including future
laws would not be invalid. So far as that conclusion goes Mr. Setalvad is
right.
But as
already stated, in arriving at that conclusion each learned Judge adopted a
different reasoning. Whereas Patanjali Sastri and Das JJ. accepted the
contention that the plenary legislative power includes power of delegation and
held that since such a power means that the legislature can make laws in the
manner it liked if it delegates that power short of an abdication there can be
no objection. On the other hand, Fazal Ali J. upheld the laws on the ground
that they contained a complete and precise policy and the legislation being
thus conditional the question of excessive delegation did not arise. Mukherjea
J. held that abdication need not be total but can be partial and even in
respect of a particular matter and if so the impugned legislation would be bad.
Bose J. expressed in frank language his displeasure at such legislation but
accepted its validity on the ground of practice recognised over since Burah's
case and thought that that practice was accepted by the Constitution makers and
incorporated in the concept of legislative function. There was thus no
unanimity as regards the principles upon which those laws were upheld.
All of
them however appear to agree on one principle, viz., that where there is
abdication of effacement the legislature concerned in truth and in fact acts
contrary to the Instrument which constituted it and the statute in question
would be void and still born." (Underlining ours) Bhargava, J. (with whom
Shah J. agreed) did not consider it necessary to enter into this controversy
as, according to them--and on this they dissented from the majority--even if it
be held that the Pondicherry Act was bad for excessive delegation of powers
when it was enacted and published, a subsequent amending Act of the Pondicherry
Legislature had remedied the situation.
Sri Sibal
contended that the Pondicherry Assembly, on a true 673 construction of s. 18 of
the Government of Union Territories Act, 1963 was not a full fledged
legislature but only a delegate of Parliament and, therefore, a delegation by
it to the State Government amounted, in effect, to a sub-delegation which
cannot be justified at all and that, therefore, Shama Rao is distinguishable.
We do not think this contention is tenable in view of the observations made in Burha's
case, [1878] 51.A 178 and in the Delhi Laws Act case (supra) while repelling a
similar contention about the status of a Dominion Legislature vis-a-vis the
Parliament of the United Kingdom, and in the Delhi Laws Act case. Also that was
not the basis on which Shama Rao was either argued before, or decided by, this
Court. We may, therefore, turn to Sharma Rao's interpretation of the Delhi Laws
Act case and apply it here. We think we may accept the passage in Shelat J's
judgment which we have underlined earlier as a correct enunciation by this
Court of the Principle emerging from the Delhi Laws Act case; if we do so the
only question that will remain to be considered will be whether s. 87 is a case
of "abdication or effacement" and the answer to that question has
been furnished, in the negative, by the Delhi Laws Act case itself in respect
of identically worded provisions.
Thus, Shama
Rao, in effect, helps the respondents to sustain the validity of s. 87, though
it is true that, on a different, if somewhat analogous, provision in the Pondicherry
Act, their Lordships reached the contrary conclusion and held there was an
"abdication or effacement." But, these niceties apart, we think that
s. 87 is quite valid even on the "policy and guideline" theory if one
has proper regard to the context of the Act and the object and purpose sought
to be achieved by s. 87 of the Act. The judicial decisions referred to above
make it clear that it is not necessary that the legislature should "dot
all the t's" and cross all the t's" of its policy. It is sufficient
if it gives the broadest indication of a general policy of the legislature. If
we bear this in mind and have regard to the history of this type of
legislation, there will be no difficulty at all. Section 87, like the
provisions of Acts I, II and III, is a provision necessitated by changes
resulting in territories coming under the legislative jurisdiction of the
Centre. These are territories situated in the midst of contiguous territories
which have a proper legislature. They are small territories falling under the
legislature jurisdiction of Parliament which has hardly sufficient time to look
after the details of all their legislative needs and requirements. To require
or expect Parliament to legislate for them will entail a disproportionate
pressure on its legislative schedule. It will also mean the unnecessary utilisation
of the time of a large number of members of Parliament for, except the few
(less than ten) members returned to Parliament from 674 the Union Territory, none else is likely to be interested in such legislation.
In such a situation, the most convenient course of legislating for them is the
adaptation, by extension, of laws in force in other areas of the country. As Fazal
Ali J. pointed out in the Delhi Laws Act case, it is not a power to make laws
that is delegated but only a power to "transplant" laws already in force
after having undergone scrutiny by Parliament or one of the State Legislatures,
and that too, without any material change. There is no dispute before us--and
it has been unanimously held in all the decisions--that the power to make
modifications and restrictions in a clause of this type is a very limited
power, which permits only changes that the different context requires and that
changes in substance. There is certainly no power of modification by way of
repeal or amendment as is available under s. 89.
Sri Swarup
contends that the vice in the provision lies (a) in the choice it has left to
the Central Government of one among several laws that may be in force in
various areas and (b) in the power it has given to extend future laws as well.
A power to exercise such wide power, he says, cannot be described as a
ministerial power-; it is essential legislative power, according to him. It is
true that if one were to read the section in the abstract and in its broadest
connotation, it conjures up the possibilities of the executive picking up at
its fancy at any time any law that may exist in any part of India for extension
to Chandigarh without any particular rhyme or reason. The force of Sri Swarup's
objection on this aspect has been picturesquely brought out by Mahajan J. in a
passage in the Delhi Laws Act case:
"The
choice to select any enactment in force in any province at the date of such
notification clearly shows that the legislature declared no principles or
policies as regards the law to be made on any subject. It may be pointed out
that under the Act of 1935 different provinces had the exclusive power of
laying down their policies in respect of subjects within their own legislative
field.
What
policy was to be adopted for Delhi, whether
that adopted in the province of Punjab or of Bombay, was
left to the Central Government. Illustratively, the mischief of such law-making
may be pointed out with reference to what happened in pursuance of this section
in Ajmer-Marwara. The Bombay Agricultural Debtors' Relief Act, 1947, has been
extended under cover of this section to Ajmer-Marwara and under the power of
modification, by amending the definition of the word 'debtor' the whole policy
of the Bombay Act has been 675 altered. Under the Bombay Act a person is a
debtor who is indebted and whose annual income from sources other than
agricultural and manly labour does not exceed 33 per cent of his total annual
income or does not exceed Rs.500, whichever is greater. In the modified statute
"debtor" means an agriculturist who owes a debt, and
"agriculturist" means a person who earns his livelihood by
agriculture and whose income from such source exceeds 66 per cent of his total
income. The outside limit of Rs.500 is removed. The exercise of this power
amounts to making a new law by a body which was not in the contemplation of the
Constitution and was not authorized to enact any laws. Shortly stated, the
question is, could the Indian legislature under the Act of 1935 enact that the
executive could extend to Delhi laws that
may be made hereinafter by a legislature in Timbuctoo or Soviet Russia with
modifications.
The
answer would be in the negative because the policy of those laws could never be
determined by the law making body entrusted with making laws for Delhi. The Provincial legislatures in India under the Constitution Act of 1935
qua Delhi constitutionally stood on no better
footing than the legislatures of Timbuctoo and Soviet Russia though
geographically and politically they were in a different situation." But, with
respect, we think, we should not look at the provision in the present context
from that angle. We should here have regard to the object of the provision and
the purpose it was intended to achieve and, in the historical perspective we
have set out, there is no vice in the power conferred.
So far
as the first aspect referred by Sri Swarup is concerned, the provision only
confers a power on the executive to determine, having regard to the local
conditions prevalent in the Union Territory, which one of several laws, all
approved by one or the other of the legislatures in the country, will be the
most suited to Chandigarh. Thus viewed, it would fail under one of the
permissible categories of delegation referred to at p. 814 in the Delhi Laws
Act case and extracted by us earlier and, if so, it is not really an unguided
or arbitrary power. There could have been no objection to the legislation if it
had provided that the laws of one of the contiguous States (say Punjab) should be extended to Chandigarh. But such a provision would have
been totally inadequate to meet the situation for two reasons. There may be
more than 676 one law in force on a subject in the contiguous States--say one
in Punjab, one in Pepsu and one in Himachal Pradesh etc.--and Parliament was anxious
that Chandigarh should have the benefit of that one of them which would most
adequately meet the needs of the situation in that territory. Or, again, there
may be no existing law on a particular subject in any of the contiguous areas
which is why the power had to include the power of extending the laws of any
State in India. While, in a very strict sense,
this may involve a choice, it is in fact and in the general run of cases, only
a decision on suitability for adaptation rather than choice of a policy. It is
a delegation, not of policy, but of matters of detail for a meticulous
appraisal of which Parliament has no time. Even if we assume that this involves
a choice of policy, the restriction of such policy to one that is approved by
Parliament or a State Legislature constitutes a sufficient declaration of
guideline within the meaning, of the "policy-guideline" theory.
The
second aspect referred to by Sri Swarup, again, is, in the context, not a sign'
of "abdication" but is only a necessary enabling power. Once it is
held that the delegation of a power to extend a present existing law is
justified, a power to extend future laws is a necessary corollary. Here again,
its validity may be tested by considering what the position would have been if
the section had provided only for the extension of the laws in a contiguous
territory, say Punjab. As mentioned earlier, a power to
extend existing statutes in Punjab could
clearly have been delegated. If Parliament formulated such a policy as it had
no time to apply its mind to the existing law initially to be adapted, it could
hardly find time to consider the amendments from time to time engrafted on it
in the state of its origin. Hence once a policy of extension of Punjab laws is clear and permissible it
would seem only natural as a necessary corollary that the executive should be
permitted to extend future amendments to those laws as well. The power to
extend any future law has to be considered in the above context and not only
could be, but also has to be, conferred for the same reasons as justify the
conferment of a power to extend a present contiguous law. Mukherjea J. in the
Delhi Laws Act case has touched upon this issue. As pointed out by him, the
question of validity of the delegation of a power to extend any future law, is
not free from difficulty. If the provision is considered in the abstract and contrued
on the basis of its fullest possible ambit, it may be difficult to sustain it.
But if it is construed and judged in the historical context of the legislation,
the needs of the situation and a reasonably practical appraisal of the extent
of its intended application, there can be no doubt that it contains a
sufficient indication of broad policy to sustain the validity of the 677 extent
of delegation involved in s. 87. We may, in this context, repeat again that
courts, in the decided cases, do not envisage a meticulous enunciation of a
policy in all its details. They are satisfied even if they can discern even
faint glimmerings of one from the object and scheme of the legislation.
For
the reasons discussed above, we reject the contentions of the petitioners
challenging the constitutional validity of s. 87.
We now
turn to the second contention of the petitioners based on the assumption of s.
87 being valid. The point made is that s. 87, on its proper construction,
permits the extension of the laws of another State to Chandigarh only so long
as there is a 'vacuum" of laws, on any particular subject, within the
Union Territory but that, once Parliament itself steps in and makes laws for
the territory, it has assumed legislative responsibilities in respect of that
subject and a "transplantation" of laws from elsewhere by extension
is neither necessary nor valid, Sri Gujral submits that the raison d'etre of s.
87 is that, as Parliament may not have enough time to attend to the legislative
needs of the new territory brought into its fold, it is necessary to provide a
machinery by which some laws could enforced in the territory. But here, as
early as 1974, Parliament applied its mind and legislated, in respect of
landlord-tenant matters, for the Union Territory and having done this, it is for
Parliament and Parliament alone to legislate on the subject thereafter. Indeed
President issued an ordinance in 1976 and Parliament also amended the law in
1982 in some other respects indicating that Parliament was in full session of
the matter. This is one facet of the objection. The other facet is that, by
purporting to extend, by an executive notification, the provisions of the 1985
Act to Chandigarh, what the Central Government has
really done is to modify or amend an existing Parliamentary law (the 1974 Act)
operating in the State already. Conceding, for purposes of argument, that, had
the 1949 Act been extended to Chandigarh in 1974 by a notification under s. 87,
it might have been open to the Government, by another notification under s. 87,
to extend the 1985 Act also to the Union Territory, counsel contends that it
was impermissible to allow the Central Government to issue a notification under
s. 87 which will have the effect of amending or modifying a law of Parliament
already in force in the territory. A notification could amend a notification
but not a statute, he says. In support of this part of the argument, counsel strongly
relies on the decision, of a majority of Judges in the Delhi Laws Act case,
that the second part of s. 2 of Act 111 considered by them was ultra vires. He
submits that, if even a specific provision in a law could 678 not validly
permit a notification of extension to amend or repeal existing laws of the
territory in question, a notification under s. 87 which advisedly omits any
reference to such an enabling power (enacted in Act III and declared ultra vires
by this court) could hardly be on a stronger footing. On this construction of
s. 87, counsel contends, the notification dated 15.12.86 has exceeded the
purview of s. 87 and is, therefore ultra vires.
Turning,
therefore, to the judgments in the Delhi Laws Act case on which counsel
strongly relies in support of his contentions, we may observe at the outset
that the judgments of Kania CJ. and Patanjali Sastri J. are not helpful, as
according to Kania C J, the power of delegation was altogether bad except in so
far as it permitted an extension of laws made by the Central Legislature and,
according to Sastri J. extensive delegation of powers was valid. Fazal Ali J.,
in upholding its validity, observed thus in regard to the second part of s. 2
of Act III:
"I
will now deal with section 2 of Part C States (Laws) Act, 1950, in so far as it
gives power to the Central Government to make a provision in the enactment
extended under the Act for the repeal or amendment of any corresponding law
which is for the time being applicable to the Part C State concerned. No doubt
this power is a far-reaching and unusual one, but, on a careful analysis, it
will be found to be only a concomitant of the power of transplantation and
modification. If a new law is to be made applicable, it may have to replace
some existing law which may have become out of date or ceased to serve any
useful purpose, and the agency which is apply the new law must be in a position
to say that the old law would cease to apply. The nearest parallel that I can
find to this provision, is to be found in the Church of England Assembly
(Powers) Act, 19 19. By that Act, the Church Assembly is empowered to propose
legislation touching matters concerning the Church of England, and the
legislation proposed may extend to the repeal or amendment of Acts of
Parliament including the Church Assembly Act itself. It should however be
noticed that it is not until Parliament itself gives it legislative force on an
affirmative address of each House that the measure is converted into
legislation. There is thus no real analogy between that Act and the Act before
us. However, the provision has to be upheld, because, though it goes to the
farthest limits, it is difficult to hold that it was beyond the 679 powers of a
legislature which is supreme in its own field, and all we can say is what Lord Hewart
said in Kind v. Minister of Health, [1927] 2 KB 229, namely, that the
particular Act may be regarded as "indicating the high water-mark of
legislative provisions of this character," and that, unless the
legislature acts with restraint, a stage may be reached when legislation may
amount to abdication of legislative powers." Mahajan J. had this to say:
"For
reasons given for answering questions 1 and 2 that the enactments mentioned
therein are ultra vires the Constitution in the particulars stated, this
question is also answered similarly. It might, however, be observed that in
this case express power to repeal or amend laws already applicable in Part C
States has been conferred on the Central Government. Power to repeal or amend
laws is a power which can only be exercised by an authority that has the power
to enact laws. It is a power co-ordinate and co-extensive with the power of the
legislature itself. In bestowing on the Central Government and clothing it with
the same capacity as is possessed by the legislature itself the Parliament has
acted unconstitutionally." The observations of Mukherjea J. are very
relevant from the point of counsel for the petitioners. His Lordship said:
"It
will be noticed that the powers conferred by this section 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 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 adjustments or changes of a minor character. But this presupposes that
there is no existing law on that particular subject actually in force in that
territory. If any such law 680 exists and power is given to repeal or abrogate
such laws either in whole or in part and substitute in place of the same other
laws which are in force in other areas, it would certainly amount to an unwarrantable
delegation of legislative powers. To repeal or abrogate an existing laws is the
exercise 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 determine as to which of the laws in force in a
particular territory 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 power of extension
which is contemplated by section 2 of Part C States (Laws) Act, includes the
power of introducing laws which may be in actual conflict with the laws validly
established and already in operation in that territory. This shows how the
practice, which was adopted during the early British period as an expedient and
possibly 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 that that of vesting almost unrestricted legislative powers with
regard to certain areas in the executive government. The executive government
is given the authority to alter, repeal or amend any laws in existence in that
areas 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 portion of section 2 of Part C States (Laws) Act, is therefore, ultra vires
the powers of the Parliament as being a delegation 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." (Emphasis added) Bose
J., again, made certain observations which are strongly relied upon by counsel.
His Lordship observed:
"I
see no reason for extending the scope of legislative delegation 681 beyond the
confines which have been hallowed for 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 repeal the existing laws of 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] AC 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 think 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 The Queen v. Burah does not
extend as far as the latter portion of section 2 of the Part C States (Laws)
Act of 1950 endeavours to carry it." (Emphasis added) In support of his
"vacuum" theory, counsel also refers to an instance of legislative
practice referred to in Kapoor's case [1989] 1 S.C.C. 561. Counsel points out
there was a central rent law applicable t9 all cantonments in India, being Act 10 of 1952. In 1957,
Parliament decided that the rent law in force in the rest of a State should be
allowed to be extended to the cantonment areas in State as well by issue of
Government notification, and enacted Act 46 of 1957 for the purpose. However,
no such extension under s. 3 of the Act 46 of 1957 was notified for the State
of U.P. until Parliament, by passing Act 68
of 1971, statutorily clarified that:
"On
and from the date on which the United Provinces (Temporary) Control of Rent
& Eviction Act, 1947, is extended by notification under section 3 of the
Cantonments (Extention of Rent Control Laws) Act, 1957 to the Cantonments in
Uttar Pradesh, the Uttar Pradesh Cantonments (Control of Rent & Eviction)
Act 1952 (Act 10 of 1952) shall stand repealed." In other words, though
extension of local laws to cantonments by notification was allowed, Parliament
provided for the simultaneous creation of a "vacuum" in the
cantonment area by repeal of the 1952 Act which could be occupied by the
extended law. Counsel emphasises this aspect to show that an extension by
notification can be allowed to fill a void but cannot be allowed to knock
against a superior Parliamentary enactment already in existence.
682
There is certainly a good deal of force in these arguments but we think that
they proceed on an incorrect view of the effect of the notification impugned in
the present case.
We
might have been inclined to accept the submissions of the learned counsel had
the effect of the notification been to extend a law which is in "actual
conflict" with any parliamentary enactment or which has the effect of
"throwing out" any existing law in the Union Territory. To borrow an
expression used in an analogous context, we would have considered the validity
of the extension doubtful had the extended provisions been repugnant to an Act of
Parliament in force in the Union Territory. So long as that is not the effect
or result, we think, there is no reason to construe the scope of s. 87 in the
restricted manner suggested by counsel. It is no doubt true that s. 87 permits
an extension because there is no law in the Union Territory in relation to a particular subject
and Parliament has not the requisite time to attend to the matter because of
its preoccupations. But this purpose does not require for its validity that
there should be no existing law of Parliament at all on a subject.
Again
the concept of "subject" for the purposes of this argument is also an
elastic one the precise scope of which cannot be defined. The concept of vacuum
is as much relevant to a case where there is absence of a particular provision
in an existing law as to a case where there is no existing law at all in the Union Territory on a subject. For instance, if Parliament had not enacted
the 1974 Act but had only enacted an extension of the Transfer of Property Act
to Chandigarh, could it have been said that a subsequent notification cannot
extend the provisions of the 1949 Act to Chandigarh because the subject of
leases is governed by the Transfer of Property Act which has been already
extended and there is, therefore, no "vacuum" left which could be
filled in by 'such extension? Again, suppose, initially, a Rent Act is extended
by Parliament which does not contain a provision regarding one of the grounds
on which a landlord can seek eviction---say, one enabling the owner to get back
his house for reoccupation--and then the Government thinks that another
enactment containing such a provision may also be extended, can it not be
plausibly said that the latter is a matter on which there is no legislation
enacted in the territory and that the extension of the latter enactment only
fills up a void or vacancy? Again, suppose the provisions of a general code
like, say, the Code of Civil Procedure are extended to the Union Territory,
should be construe s. 87 so as to preclude the extension of a later amendment
to one of the rules to one of the Orders of the C.P.C. merely on the ground
that it will have the effect of varying or amending an existing law? We think
it would not be correct to thus unduly restrict the scope of a provision like
s. 87. The better way to put the principle, we think, is to 683 say that the
extension of an enactment which makes additions to the existing law would also
be permissible under s. 87 so long as it does not, expressly or impliedly,
repeal or conflict with, or is not repugnant to, an already existing law. In
this context, reference can usefully be made to the observations in. Hari Shanker
Bagla [1955] 1 SCR 380 at 39 1, which seem to countenance the
"by-passing" of an existing law by a piece of delegated legislation
and to draw the line only at its attempt to repeal the existing law, expressly
or by necessary implication. In a sense, no doubt, any addition, however small,
does amend or vary the existing law but so long as it does not really detract
from or conflict with it, there is no reason why it should not stand alongside
the existing law. In our view s. 87 should be interpreted constructively so as
to permit its object being achieved rather than in a manner that will detract
from its efficacy or purpose. We may also note, incidentally, that in
legislative practice also, such successive changes have been allowed to stand
together. Lachmi Narain v. Union of India, [1976] 2 SCR 785 narrates how the
Bengal Finance (Sales Tax) Act, 1941 extended to Delhi under Act III was
subsequently amended by Parliament Acts of 1956 and 1959 but was also sought to
be modified by various notifications from time to time.
These
notifications were challenged on the ground that the power to extend by
notification could be exercised only once and that the impugned notification
did not merely extend but also effected modifications of a substantial nature
in the Act sought to be extended. No contention was, however, raised that after
the intervention of Parliament in 1956 and 1959 there could have been no
extension of the Bengal Act as it would have the effect of adding to or varying
the Parliamentary legislation apparently because they could stand side by side
with each other. We, therefore, think that since the extension of the 1985 Act
only adds provisions in respect of aspects not covered by the 1974 Act and in a
manner not inconsistent therewith, the impugned, notification is quite valid
and not liable to be struck down.
We may
now briefly dispose of certain minor aspects of the above contentions which
were debated before us:
1. It
was urged that the provisions of the 1985 Act extended to Chandigarh cannot
stand independently and make sense only if read along with and as supplementing
the provisions of the 1949 Act already reenacted by the 1974 Act and,
therefore, amend or modify the 1974 Act. This is true but it does not affect
our line of reasoning indicated above.
684 2
There was considerable argument before us as to whether the modifications
introduced by the 1985 Act in the 1949 Act, as reenacted by the 1974 Act, are
minor "modifications or restrictions" or incorporate substantial
changes in the scheme of the pre-existing law. Counsel for the petitioners
contended that the changes introduced by the 1985 Act were substantial and far-reaching.
On the other hand counsel for the respondent contended to the contrary. Sri Sehgal,
appearing for one of the landlords submitted that the Act already contained
provisions enabling any owner to get back his premises when he needed it for
his occupation--S. 13(3)(a)(i) and (iv)--and a special provision enabling an
Army Officer to expeditiously recover possession of his premises when he needed
it for his family--S. 13(3)(a)(i-a) and (c)--and that the provision sought to
be introduced by the 1985 Act was only a natural and logical extension.
thereof.
Counsel for the landlord in SLP 92 17 of 1988 submitted that it was only a
procedural change that the 1985 Act introduced, relying on certain observations
made by this Court in Kewal Singh v. Lajwanti, [1980] 1 SCR 854. All this
discussion is wholly irrelevant on our line of reasoning. As we have pointed
out, in construing the scope of a law extended under s. 87 qua an existing law,
the question is not whether there are changes or not, the question is only, are
they inconsistent with, in conflict with or repugnant to, the scheme of the
existing law and we have answered this question in the negative. The question
of "modifications or restrictions" will loom large only in construing
the scope of the notification qua the law extended by it. In Lachmi Narain
[1976] 2 SCR 785 (at p. 801-2) and other cases it has been held that such a
notification, while extending a law, can make only such "modifications and
restrictions" in the law extended as are of an incidental, ancillary or
subservient nature and as do not involve substantial deviations therefrom.
Here, it is common ground that the 1985 Act has been extended as it is, with
only very minor modifications and, hence, it is unnecessary to consider the
question debated.
3. The
reference to the legislative precedent referred to in Kapoor's case does not
help us to determine the issue in the present case. Sri Gujral pointed out
that, in that case, Parliament considered it necessary to repeal an Act of
Parliament (10 of 1952) and thus create a vacuum before providing for extension
of a State law to the cantonment.
Central
Act 10 of 1952 in that case, was a detailed enactment and the State law
extended under s. 3 of the Act 46 of 1957 could not have stood alone with it.
It was, therefore, decided by Parliament that the Central Act should stand
repealed. Here, on the other hand, we have attempted to show that both sets of
provisions can stand together 685 and effectively supplement 'each other.
Sri Swarup
pointed out that, in Kapoor's case, the words "on the date of the
notification" were omitted with retrospective effect. This also does not
help the petitioners.
For
one thing, the omission of those words enlarges the power of notification and
made possible the issue of a notification to extend the State law along with
its future amendments. But that apart, the words "on the date of the
notification" are present in s. 87 and authorise the extension of the law
in force in Punjab, as on 15.12.1986, to Chandigarh.
4.
There was some discussion before us on the basis of the observations in Lachmi Narain
& Ors. v. Union of India & Ors., [1976] 2 SCR
785, as to whether there could be successive notifications under s. 87. But
this question, which was answered in the affirmative in Kapoor's case (supra),
does not arise here, as there is only one notification under s. 87.
5.
Learned counsel submitted that the observations of the High Court in para 17
and 26 of the judgment under appeal are not helpful as they refer to extension
of laws made under the provisions of Acts I, II and III which had been held
valid in the Delhi Laws Act case. This is correct but, as we have pointed out
earlier. s. 87 only continued the pattern of Acts I, II and III after being
assured by the Supreme Court that there was nothing wrong with it. This is a
relevant aspect which has to be kept in mind in considering the issues before
us.
6.
Learned counsel criticised the observations made by the High Court in para 27
of the judgment. The passage referred to seems to echo the observations made in
certain decisions of this Court (vide, for e.g. Mukherjea CJ) in Rai Sahab Ram Jawaya
Kapur v. State, [1955] 2 SCR 225 at p. 237 and Hedge J. in Sitaram Bishamber Dayal,
[1972] 2 SCR 141 at p. 143 cited, with apparent approval, in Roy v. Union,
[1982] 2 SCR 272 at p. 3 17. They should not be understood as equating the
exercise of legislative power by Parliament and the Executive.
7.
Both sides sought to take advantage of the history of the legislation in this
case. As stated earlier, the main contention of counsel for the petitioners was
that, by enacting the 1974 Act and the 1982 Act, Parliament had filled in the
"vacuum" which could no longer be penetrated by extension of laws
from other parts of the country on the subject. In addition they point out that
the 1976 Ordinance making the amendments which are now being sought to be 686
extended was allowed to lapse and that an incorporation of these amendments was
not considered necessary when the 1982 Act was passed. These two circumstances
show, according to them, that an extension of the provisions of the 1985 Act
was contrary to the clear intention of Parliament. On the contrary, counsel for
the State submitted that the passing of the 1974 Act and the promulgation of the
ordinance show that it was the policy of the Parliament to extend the
provisions of the 1949 Act and, in particular, the provisions now extended, to Chandigarh
as well. He further submitted that the ordinance could not be made into an Act
because of the intervention of the emergency and that the omission to convert
the ordinance into an Act and to insert the provisions of the ordinance into
the 1982 Act really demonstrate how Parliament is unable to keep track of
legislation necessary for a Union Territory. We do not wish to enter into this
controversy for our present purposes as we do not think that any clear
inference can be drawn one way or the other from these circumstances. It is
also not necessary to consider these developments in the view we have taken
that there can be no objection to extension of provisions which do not conflict
with the existing law in the Union Territory.
8. Sri
Swarup raised a point that if s. 87 is read as empowering the extension of any
law at any time, s. 89 which prescribes a maximum time limit of two years
within which to adapt existing laws for their application to Chandigarh would become redundant. This
argument overlooks a very crucial difference between ss. 87 and 89. This is
that, within the period of two years mentioned in s. 89, the Central Government
can, while adapting pre-existing laws make any changes therein, including
changes by way of repeal or amendment. But s. 87 though capable of enforcement
indefinitely, confers a more limited power. It can be invoked only to extend
laws already in existence to the Union Territory and cannot make any substantial
changes therein. The power under s. 89 is limited in time but extensive in
scope while under s. 87 the power is indefinite in point of duration but very
much more restricted in its scope.
The
above discussions dispose of all the contentions urged before us. For the
reasons set out, we are of opinion that the conclusion arrived at by the Punjab and Haryana High Court was the
correct one. All these petitions and appeals fail and are dismissed and the
rules nisi discharged but, in the circumstances, we direct each party to bear
his/its own costs.
P.S.S.
Appeals & petitions dismissed.
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