SOCIOLOGY II

DELHI LAWS ACT, 1912

SUBMITTED BY:

ADITYA PRASANNA BHATTACHARYA

YEAR I – TRIMESTER III

ID NO. – 2275

DATE OF SUBMISSION: 13TH APRIL, 2017

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

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As a general principle of modern political theory, sovereign power is vested in the People,
who in turn, delegate this power to elected leaders. Speaking normatively, this delegation is
the source of the power of a Legislative body. The question then arises: Can this Legislature
further delegate a set of its powers to a non-legislative body? In this paper, I shall argue that
delegation of power is a necessity in order to ensure well-ordered functioning of the
Legislature.

There is a popular jurisprudential argument that no legislative body can delegate to another
governmental department, or to any other authority, the power, either specially or generally,
to enact laws (Cooley, 1994: 138). The reason provided is found in the basis of the very
existence of the Legislature: “The high prerogative has been entrusted to its own wisdom,
judgement, and patriotism, and not to those of other persons, and it will act ultra vires if it
undertakes to delegate the trust, instead of executing it” (Locke, 1690: 212).

But the “sphere of State action” has expanded enormously in modern times, and it has thus
become practically impossible for Legislatures to enunciate every detail while enacting a law
(Ganguly, 1968). As a corollary, there has thus been a huge increase in the quantum of
administrative legislation, to provide laws with better implementing and adaptive
mechanisms, to meet the ever-changing needs of society. These details, however, are
essential to facilitate the necessary and proper implementation of the laws. This is why the
Legislature is required to further delegate powers to the Executive, so that administrative
actions with regard to the laws passed can be performed with ease.

The problem of delegated legislation appeared in India at a time when the issue was in full
swing in the Western legal sphere. As a general rule, in countries where the Constitution
contains rigid provisions for separation of power, the battle over delegated legislation is a
well-contested one (Alexandrowicz-Alexander, 1954). This was the case in the United States.
The problem in India, however, was not restricted to the tussle between constitutional theory
and practical requirements, but spilled over to the debate between the American and British
positions of law, with regard to delegated legislation.

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While framing the Constitution, the Constituent Assembly left the issues that were of
relatively minor importance, in comparison to greater constitutional debates, for
interpretation by the judicial department, or for future conventions, whenever necessitated.
One such issue was that of delegated legislation, on which the President approached the
Supreme Court in 1950, to seek advice, under the provision granted in Article 143 of the
Indian Constitution. The reason for this was the decision rendered in Jatindra Nath Gupta v.
the Province of Bihar, by which a piece of legislation was held as ultra vires, as it had been
passed by an extraneous authority, to which power had been delegated by the Provincial
Legislature of Bihar. This judgement, in addition to having prospective precedential value,
cast aspersions on the constitutionality of certain pre-Independence legislations. The first of
these was the Delhi Laws Act, 1912.

In 1912, the legislative power in British India was vested with the Governor General in
Council, drawing from the Indian Councils Act, 1861. At this time, the Privy Council in the
case of Queen v. Burah considered the question of delegated legislation. It was held that the
Council of the Governor General had plenary powers, and had complete authority to delegate
powers to a non-legislative body. This decision was in line with the standard practice in the
United Kingdom, where the House of Commons hold absolute power. But it is important to
note that the Privy Council termed it ‘conditional legislation’, and did not use the word
‘delegated’. Conditional legislation grants powers to a non-legislative body to formulate any
necessary rules or by-laws, contingent on a event that might occur in the future. Only if the
event occurs, does it become lawful for the extraneous body to legislate. But we can
definitely arrive at the conclusion that at the time of passing of the Delhi Laws Act, the Privy
Council accepted delegated legislation, although, sensu stricto, it did not term it so.

While considering the constitutionality of the Delhi Laws Act, the judges had to keep in mind
that they were part of a post-independence judicial framework, one in which the recently
framed Constitution reigned supreme. It was a question of the juxtaposition of imposed
tradition, flowing from British convention, and newly formulated Constitutional principles,
enshrined in the bare text. Alexandrowicz puts it succinctly when he says: “Existing patterns

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and precedents were carefully weighed while the requirements of the peculiar conditions of
the new state were not ignored.” (ibid.)

Finally, three judges opined in favour of the English position, granting plenary powers to the
Legislature to delegate powers to the fullest extent. Two other judges opined in favour of the
American position, where delegation is not acceptable. The case was finally decided by the
remaining two judges, who fell in line with the British position, but expressed the sentiment
that delegation by the Legislature could not be given a free rein, but must be “confined within
banks to keep it from overflowing.” This was the decision rendered in In Re: Delhi Laws Act,
1912.

Upon a careful study of the rendered judgement, it is found that the first three judges
attempted to answer three fundamental questions:

1. Can a legislature, which has powers delegated from another, further sub-delegate?
2. Is delegation of powers possible to the Executive, from the Legislature, in spite of
separation of powers, as embodied in the Constitution?
3. Can a legislature, in which the electorate has vested its trust to execute powers of
legislation, delegate such trust to extraneous bodies?

The first question, which was answered in affirmative, was particularly important in deciding
the constitutionality of the impugned Section 7 of the Act. The section reads: “"The
Provincial Government may by 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". This
speaks unambiguously of the delegation of power to the Executive, flowing from the
Legislature. The question being answered in the affirmative meant that the Court reaffirmed
the supremacy of the Legislature, and thus the maxim of delegatus non potest delegare (He
who derives power from delegation cannot delegate it himself) could not be applied to it.

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The second and third questions could be merged into one, for all intents and purposes. If one
were to look at it from the English perspective, it is clear that owing to the retention of
plenary powers by the Parliament, delegation cannot be challenged. Theoretically speaking,
inn the United Kingdom, the House of Commons can pass a law setting up a parallel
legislature, and delegate all of its powers to this new body. But such unrestrained power
could not have been granted to the Parliament in India, as separation of powers is one of the
fundamental values of our Constitution.

It is important to keep in mind, however, that India had adopted a Parliamentary system of
government, and not a Presidential one. In the former, the roles of the Legislature and the
Executive are intertwined to such an extent, that separation, although envisaged in theory,
cannot be achieved in praxis. In India, unlike in the United States (which follows a
presidential system of government), the Executive is responsible to the Legislature. So any
powers transferred to the Executive, from the legislature, can be termed to be either
Executive, or Legislative in nature (since responsibilities exist for both). But if they are
executive, the Legislature has no authority to delegate such powers. So the delegated powers
must necessarily be Legislative in nature.

At this point, it may be noted that quasi-separation of powers is vastly different from non-
separation of powers, as adopted in autocratic states. Countries like China and the former
Soviet Union claimed that separation of powers is a myth, and that if authority was unified,
there would be no need to address the issue of delegation as a separate and contentious
matter. But in the West, and in India, there is genuine independence of the Judiciary, which is
further vested with the power of judicial review. Furthermore, in a Parliamentary system, the
Legislature and the Executive are not coercively amalgamated, but are made to work in closer
cooperation. Thus, India’s problem was not one of unified power, but of establishing proper
channels of transfer of power from the Legislature to the State, to address the problems of
practical government. Thus the second and third questions were also answered in the
affirmative. Delegated legislation, as long as it does not exceed reasonable limits, is
permissible in India.

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The juxtaposition of separation of power, and delegated legislation, can be better understood
by using the theory of autopoieticoiesis in the interface of law and sociology, as proposed by
Niklaus Luhmann in his paper Law As A Social System, and further reduced to its nuances by
David Seidl, in his commentary Luhmann’s Theory of Autopoieticoietic Social Systems.

Luhmann argues that all elements of an autopoietic system are produced within it, and are not
imported from the outside. This is called operative closure of the system (Luhmann, 1985).
In a similar fashion, the Indian Constitution enshrines separation of powers, thus operatively
closing the Legislature from the other wings of the government. The Executive cannot
interfere with the Legislature as far as its operations are concerned, and it cannot dictate how
the latter functions. That is the exclusive domain of the Legislature, making it an autopoietic
system.

But Luhmann contends that operative closure of an autopoietic system does not imply that it
is a closed model (Seidl, 2004). All such systems are open systems, and they have contact
with the external environment. This contact, he calls interactional openness. The autopoietic
system decides what level of interaction it requires, and modifies its contact with the external
environment accordingly. As far as extending this analogy is concerned, delegation of
legislative power is thus an exercise of interactional openness by the autopoietic system, the
Legislature.

The Executive, for the purposes of this model, is analogous to a component of the external
environment (although for a different thesis, it might too be considered a distinct autopoietic
system). Thus through delegation of legislative power, there is an outward flow of certain
functions from the Legislature (autopoietic system), to the Executive (external environment).
This presents a minor modification to Luhmann’s theory, as he primarily focuses on an
inward flow, which influences internal operations. But in this case, the effects that an
autopoietic system has on its environment cannot be ignored. Further, the external flow is to
serve the very purpose of facilitation of internal functions. Analogically, this would mean that

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the Legislature outsources certain legislative functions to the Executive, in order to ensure
stronger enactments, which is an essential function of the Legislature itself.

Luhmann further argues that operative closure is a precondition for interactional openness.
This argument can be extended to fit the analogy too. The Constitution enshrines separation
of powers in its provisions, thus creating a structure that can undoubtedly be termed rigid.
This ensures operative closure of the Legislature. How can this be a precondition for
interactional openness, or, how can separation of powers be a precondition for delegation of
powers? Owing to the fact that the Constitution ensures closer cooperation of the Executive
and the Legislature, and rules out any chance of amalgamation, it necessitates proper
channels for transfer of certain powers. This transfer is, again, for the benefit of the internal
operations of the closed system. This relation between the system and the environment is
termed as structural coupling.

In conclusion, therefore, the Legislature is an operatively closed autopoietic system, which

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 BIBLIOGRAPHY/REFERENCES

BOOKS

 Cooley Thomas M., 1994, The General Principles of Constitutional Law In The United
States Of America.

 Locke John, 1690, Second Treatise Of Civil Government.

ARTICLES / PAPERS

 Ganguky Bangendu, 1968, Administrative Legislation in Modern India: A Preface.

CASES

 Queen v. Burah
 Jatindra Nath Gupta v. the Province of Bihar
 In re: Delhi Laws Act, 1912.