Pre Independence: Queen v.

Burah wherein the Privy Council had validated only Conditional

Legislation and therefore as per its reasoning delegated legislation is not permitted. The
administration of civil and criminal justice within the said territory was vested in such officers as the
Lieutenant-Governor may from time to time appoint. Sections 8 and 9 of the said Act provided as
follows: - "Section 8. The said Lieutenant-Governor may from time to time, by notification in the
Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the
other territories subject to his Government, or which may hereafter be enacted by the Council of the
Governor-General, or of the said Lieutenant-Governor, for making laws and regulations, and may on
making such extension direct by whom any powers of duties incident to the provisions so extended
shall be exercised or performed, and make any order which he shall deem requisite for carrying such
provisions into operation."

"Section 9- The said Lieutenant-Governor may from time to time, by notification in the Calcutta
Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this
Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being
forms part of British India. It was held that Indian legislators have plenary powers and it exercised
the power in its own right and not as an agent or a delegate of the British parliament.

The Privy Council laid down that “seeking of assistance of a subordinate agency in the framing of
rules and regulations which are to become a part of the law and conferring on another body the
essential legislative functions which under the constitution should be exercised by the legislature
itself. It also stated that the essential legislative function consists in the determination or choosing of
the legislative policy and formally enacting that policy into binding rule of conduct.

Also in King v. Benoari Lal Sharma Conditional legislation was again applied by the privy council
wherein the validity of an emergency ordinance by the Governor-General of India was challenged
inter alia on the ground that it provided for setting up of special criminal courts for particular kinds of
offences, but the actual setting up of the courts was left to the Provincial Governments which were
authorised to set them up at such time and place as they considered proper. The Judicial Committee
held that "this is not delegated legislation at all. It is merely an example of the not uncommon
legislative power by which the local application of the provisions of a statute is determined by the
judgment of a local administrative body as to its necessity." The privy council held that “Local
application of the provision of a state is determined by the judgment of a local administrative body as
to its necessity.” Also the Federal Court inJatindra Nath v State of Bihar AIR 1949 FC 175held that
power of extension with modification is unconstitutional as legislative power cannot be delegated.
Wherein the S. 1 (3) of Bihar maintenance of public order Act, 1948 was challenged – as it gave
power of extension of modification to provincial Govt. but this case But created doubts on the limits
of delegation.

Post – Independence: The Delhi Laws Act, 1912, giving power to the Government to extend to
Delhi and Ajmer-Marwar with such restrictions and modifications as it thought fit any law in force in
any other part of India, was held intra vires- The case also discussed the validity of the law
empowering the Government to extend to part C States any law in force in a part A state and to
repeal existing laws-- It was held ultra vires under article 143 of the Constitution asking the Court's
opinion on the three questions submitted for its consideration and report. Section 2 of the Part C
States (Laws) Act, 1950, runs as follows:-"Power to extend enactments to certain Part C States. -
The Central Government may, by notification in the Official Gazette, extend to any Part C State
(other than Coorg and the Andaman and Nicobar Islands) or to 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 three sections referred to in the three questions are all in respect of what is described as the
delegation of legislative power and the three particular Acts are selected to raise the question in
respect of the three main stages in the constitutional development of India. The first covers the
legislative powers of the Indian Legislature during the period prior to the Government of India Act,
1915. The second is in respect of its legislative power after the Government of India Act, 1935, as
amended by the Indian Independence Act of 1947. The last is in respect of the power of the Indian
Parliament under the present Constitution of 1950.
As regards constitution of the delegation of legislative powers the Indian Legislature cannot be in the
same position as the prominent British Parliament and how far delegation is permissible has got to
be ascertained in India as a matter of construction from the express provisions of the Indian
Constitution. It cannot be said that an unlimited right of delegation is inherent in the legislature power
itself. 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 in 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. It is in the light of these principles that I propose to examine the
constitutional validity of the three legislative provisions in respect to which the reference has been
made.

In case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569in
which S.3(1)(f) wherein the Bihar & Orissa Act, empowered the local administration to extend to
Patna the provisions of any sections of the act ( Bengal Municipality Act, 1884) subject to such
modification, as it might think fit. The government picked up section 104 and after modifications
applied it to the town of Patna. One of the essential features of the Act was the provision that no
municipality competent to tax could be thrust upon a locality without giving its inhabitants a chance
of being heard and of being given as opportunity to object. The sections which provided for an
opportunity to object were excluded from the notification. It was held as amounting to tamper with
the policy of the Act.

In Lachmi Narain v. UOI (1976 2) SCC 95where the validity of Section 2 of Union Territories (Laws)
Act, 1950 and Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be determined. The issue
was that whether notification issued by Central Government in purported exercise of its powers
under Section 2 ultra vires of Central Government.