CONSTITUTION OF INDIA AND DELHI LAWS ACT 1912 Vs. UNION OF INDIA
LAWS(SC)-1951-5-10
SUPREME COURT OF INDIA
Decided on May 23,1951

IN RE (ART.143,CONSTITUTION OF INDIA AND DELHI LAWS ACT 1912) Appellant
VERSUS
UNION OF INDIA Respondents


Referred Judgements :-

HODGE V. THE QUEEN [REFERRED]
STOUTENBURGH V. HENNICK [REFERRED]
MUTUAL FILM CORP. V. INDUSTRIAL COMMISSION OF OHIO [REFERRED]
SPRIGG V. SIGCAU [REFERRED]
CANADA V. EVERETT E. CAIN [REFERRED]
AUSTRALIA V. COLONIAL SUGAR REFINING CO. LTD. [REFERRED]
HANIPTON AND CO. V. UNITED STATES [REFERRED]
PANAMA REFINING CO. V. RYAN [REFERRED]
KING V. MINISTER OF HEALTH [REFERRED]
MEAKES V. DIGNAN [REFERRED]
J. W. HAMPTON JR. AND CO. V. U. S. [REFERRED]
SCHECHTER POULTRY CORP. V. UNITED STATES [REFERRED]
REX V. HALLIDAY' [REFERRED]
KING V. NAT BELL LIQUORS LTD. [REFERRED]
JATINDRA NATH GUPTA V. PROVINCE OF BIHAR [REFERRED]
THE QUEEN V. BURAH [REFERRED]
EMPEROR V. BENOARI LAL SARMA [REFERRED]
JATINDRA NATH GUPTA V. THE PROVINCE OF BIHAR [REFERRED]
JAPANESE CANADIANS V. ATTORNEY-GENERAL FOR CANADA [REFERRED]



Cited Judgements :-

UNION OF INDIA VS. LACHMI NARAIN [LAWS(DLH)-1971-11-20] [REFERRED TO]
FIRM MYSTERY RAJIBHAI SAVJIBHAI AND BROS VS. STATE OF GUJARAT [LAWS(GJH)-1965-7-7] [REFERRED TO]
BASTI SUGAR MILLS CO LTD VS. STATE OF UTTAR PRADESH [LAWS(ALL)-1954-2-10] [REFERRED TO]
BRITISH INDIA CORPORATION LTD VS. GOVT OF UTTAR PRADESH [LAWS(ALL)-1954-3-5] [REFERRED TO]
MURARI LAL SOLAN VS. STATE [LAWS(ALL)-1954-10-7] [REFERRED TO]
SHEO PRASAD KANHAYA LAL VS. MUNICIPAL BOARD BAHRAICH [LAWS(ALL)-1955-3-7] [REFERRED TO]
KUNWAR MURLI MANOHAR VS. STATE OF UTTAR PRADESH [LAWS(ALL)-1956-10-7] [REFERRED TO]
JAIN TRANSPORT AND GENERAL TRADING CO VS. STATE OF UTTAR PRADESH [LAWS(ALL)-1956-12-17] [REFERRED TO]
NASIR HUSAIN VS. STATE OF U P [LAWS(ALL)-1957-1-35] [REFERRED TO]
BALAK SINGH KUSHWAHA VS. STATE OF U P [LAWS(ALL)-1998-10-22] [REFERRED TO]
MONNET SUGAR LTD VS. UNION OF INDIA [LAWS(ALL)-2005-8-90] [RELIED ON]
MOHAMMAD BHUDAN KHAN VS. STATE OF ANDHRA PRADESH HYDERABAD [LAWS(APH)-1958-11-4] [REFERRED TO]
NALLURI VENKATARAJU VS. STATE OF ANDHRA PRADESH [LAWS(APH)-1960-4-28] [REFERRED TO]
G VENKATA RAMAIAH VS. STATE OF ANDHRA PRADESH [LAWS(APH)-1963-6-11] [REFERRED TO]
DURGA RICE AND BABA OIL MILLS CO NIDUBROLE VS. STATE OF ANDHRA PRADESH [LAWS(APH)-1963-8-5] [REFERRED TO]
V RAMACHANDRA REDDY VS. STATE OF ANDHRA PRADESH [LAWS(APH)-1964-7-3] [REFERRED TO]
JAGRITI VS. STATE [LAWS(APH)-1993-12-36] [REFERRED TO]
GOVERNMENT OF INDIA VS. KUL HIND ALL INDIA [LAWS(APH)-1995-7-29] [REFERRED TO]
ITC LIMITED VS. DEPUTY COMMISSIONER CT GUNTUR DIVISION GUNTUR [LAWS(APH)-2002-6-130] [REFERRED TO]
G V JAYACHANDRA CHOWDARY VS. GOVT OF A P [LAWS(APH)-2004-4-54] [REFERRED TO]
G V JAYACHANDRA CHOWDARY VS. GOVT OF A P [LAWS(APH)-2004-4-45] [REFERRED TO]
ATULYA KUMAR DE VS. DIRECTOR OF PROCUREMENT AND SUPPLY [LAWS(CAL)-1953-3-8] [REFERRED TO]
CORPORATION OF CALCUTTA VS. SARAT CHANDRA GHATAK [LAWS(CAL)-1959-4-13] [REFERRED TO]
ARUN CHANDRA GHOSE VS. UNION OF INDIA [LAWS(CAL)-1967-2-15] [REFERRED TO]
JAYANTILAL OSHAH VS. CHIEF PRESIDENCY MAGISTRATE CALCUTTA [LAWS(CAL)-1968-4-10] [REFERRED TO]
BIHARILAL VS. RAMCHARAN [LAWS(MPH)-1957-4-19] [REFERRED TO]
INDIRA NEHRU GANDHI SHRI RAJ NARAIN VS. RAJ NARAIN INDIRA NEHRU GANDHI [LAWS(SC)-1975-11-1] [RELIED ON]
UNION OF INDIA VS. UNITED MOTORS INDIA LIMITED [LAWS(SC)-1953-3-5] [RELIED ON]
RAJNARAIN SINGH VS. CHAIRMAN PATNA ADMINISTRATION COMMITTEE PATNA [LAWS(SC)-1954-5-23] [EXPLALNED AND RELIED ON]
NEW CENTRAL JUTE MILLS CO LIMITED VS. ASSISTANT COLLECTOR OF CENTRAL EXCISE ALLAHABAD [LAWS(SC)-1970-9-56] [REFERRED TO]
STATE OFBIHAR VS. KAMESHWAR SINGH:STATE OF MADHYA PRADESH:GOVERNMENT OF THE STATE OF UTTAR PRADESH:KAMESHWAR SINGH [LAWS(SC)-1952-5-3] [REFERRED]
HARISHANKAR BAGLA VS. STATE OF MADHYA PRADESH [LAWS(SC)-1954-5-3] [RELIED ON]
PURANLAL LAKHANPAL VS. PRESIDENT OF INDIA [LAWS(SC)-1961-3-54] [EXPLAINED]
KHAZAN SJNGH AMAR TRANSPORT ROADWAYS AND SHRI DULUH SINGH VS. STATE OF UTTAR PRADESH [LAWS(SC)-1973-12-13] [DISTINGUISHED]
GWALIOR RATON SILK MANUFACTURING WEAVING CO LIMITED VS. ASSTT COMMISSIONER OF SALES TAX [LAWS(SC)-1973-12-41] [CONSIDERED]
KHEMKA AND COMPANY AGENCIES PVT LIMITED STATE OF MYSORE VS. STATE OF MAHARASHTRA: GULDAS NARASAPPA THIMMAIAH OIL MILLS [LAWS(SC)-1975-2-3] [RELIED ON]
LACHMI NARAIN VS. UNION OF INDIA [LAWS(SC)-1975-11-50] [REFERRED TO]
BABU RAM JAGDISH KUMAR VS. STATE OF PUNJAB [LAWS(SC)-1979-5-23] [RELIED ON]
A K ROY THAN SINGH TYAGI DR VASANTKUMAR PANDIT VS. UNION OF INDIA [LAWS(SC)-1981-12-15] [RELIED ON]
BRIJ SUNDER KAPOOR DR GOVERDHAN DASS AGARWAL SMT USHA SHARMA RAMESHWAR DAYAL VS. I ADDITIONAL DISTRICT JUDGE:RATTAN LAL AGARWAL:III ADDITIONAL DISTRICT JUDGE:IV ADDITIONAL DISTRICT JUDGE MEERUT [LAWS(SC)-1988-10-28] [DISTINGUISHED]
PRESIDENT OF INDIA VS. CAUVERY WATER DISPUTES TRIBUNAL [LAWS(SC)-1991-11-74] [DISTINGUISHED]
ORGANON INDIA LIMITED [NOW KNOWN AS INFAR INDIA LIMITED ] VS. COLLECTOR OF EXCISE [LAWS(SC)-1994-7-69] [OVERRULED]
KIRAN GUPTA VS. STATE OF UTTAR PRADESH [LAWS(SC)-2000-9-151] [REFERRED]
M P HIGH COURT BAR ASSOCIATION VS. UNION OF INDIA [LAWS(SC)-2004-9-126] [REFERRED TO]
STATE OF RAJASTHAN VS. BASANT NAHATA [LAWS(SC)-2005-9-23] [REFERRED TO]
KRISHNA BRICK FIELD VS. STATE OF UTTAR PRADESH [LAWS(ALL)-1971-5-2] [REFERRED TO]
N SEKHAR VS. GOVT OF A P [LAWS(APH)-2006-6-147] [REFERRED]
STATE VS. HAIDARALI [LAWS(MPH)-1957-5-4] [REFERRED TO]
DANDAPANI PATNAIK VS. STATE OF ORISSA [LAWS(ORI)-1961-3-5] [REFERRED TO]
P P KUTTI KEYA VS. STATE OF MADRAS [LAWS(MAD)-1953-7-16] [REFERRED TO]
DADABHOYS NEW CHIRIMIRI PONRI HILL COLLIERY CO PRIVATE VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1966-12-8] [REFERRED TO]
DAMODARAN VS. STATE [LAWS(KER)-1959-6-23] [REFERRED TO]
COLLECTIVE FARMING SOCIETY VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1973-10-5] [REFERRED TO]
BIJOY KUMAR ROUTRAI VS. STATE OF ORISSA [LAWS(ORI)-1975-5-1] [REFERRED TO]
GOODLAND PLANTATIONS PRIVATE VS. STATE BANK OF TRAVANCORE [LAWS(KER)-1964-8-24] [REFERRED TO]
RAJASEKHARAN NAIR TRIVANDRUM VS. CITY CORPORATION OF TRIVANDRUM [LAWS(KER)-1964-12-34] [REFERRED TO]
MUKUND DAS VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1991-7-19] [REFERRED TO]
MOTI MARRY VS. SUPERINTENDENT LADY ELGIN HOSPITAL [LAWS(MPH)-1993-6-1] [REFERRED TO]
STATE VS. JANAMOHAN DAS [LAWS(ORI)-1993-1-12] [REFERRED TO]
R K TRADERS VS. STATE OF MADHYA PRADESH [LAWS(MPH)-1994-8-11] [REFERRED TO]
SRIKANTA DATTA NARASIMHA RAJA WADIYAR VS. ASSISTANT COMMISSIONER OF WEALTH TAX [LAWS(KAR)-1999-3-67] [REFERRED TO]
MADHYA PRADESH DAINIK VETAN BHOGI KARMACHARI SANGH VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2003-6-5] [REFERRED TO]
ANIL KUMAR GULATI VS. STATE OF M P [LAWS(MPH)-2003-8-8] [REFERRED TO]
SADRUDDIN SULEMAN JHAVERI VS. J H PATWARDHAN [LAWS(BOM)-1964-7-3] [REFERRED TO]
GANESH NARAYAN VS. COMMISSIONER NAGPUR DIVISION NAGPURAND [LAWS(BOM)-1964-8-1] [REFERRED TO]
LAKSHMI AMMAL VS. ASSISTANT COMMISSIONER LAND REFORMS VILLUPURAM [LAWS(MAD)-1991-1-25] [REFERRED TO]
MANAGEMENT OF M/S AIR FRANCE NEW DELHI VS. DEPUTY COMMISSIONER OF LABOUR [LAWS(MAD)-1991-9-3] [REFERRED TO]
MAHARASHTRA STATE CO OPERATIVE COTTON GROWERS MARKETING FEDERATION LIMITED VS. RALLI BROS AND CONEY LIMITED U K [LAWS(BOM)-1991-7-65] [REFERRED TO]
SUVINA B REDKAR VS. GOVERNMENT OF GOA [LAWS(BOM)-1991-8-60] [REFERRED TO]
S M MALLEWAR VS. STATE OF MAHARASHTRA [LAWS(BOM)-1993-3-46] [REFERRED TO]
N NARADARAJAN VS. STATE OF TAMIL NADU [LAWS(MAD)-2001-10-1] [REFERRED TO]
PALANISWAMY K C CHAIRMAN CHERAN GROUP COIMBATORE VS. APPELLATE AUTHORITY FOR INDUSTRIAL AND FINANCIAL RECONSTRUCTION NEW DELHI [LAWS(MAD)-2003-9-145] [REFERRED TO]
K SRIDHAR KUMAR VS. UNION OF INDIA [LAWS(MAD)-2010-12-33] [REFERRED TO]
FIRM ADARSH INDUSTRIAL CORPORATION VS. MARKET COMMITTEEKARNAL [LAWS(P&H)-1962-1-9] [REFERRED TO]
THANMAL SURANA VS. UNION OF INDIA [LAWS(RAJ)-1959-4-18] [REFERRED TO]
RAJNARAIN SINGH VS. CHAIRMAN PATNA ADMINISTRATION COMMITTEE [LAWS(PAT)-1952-12-2] [REFERRED TO]
STATE VS. RAMANAND TIWARI [LAWS(PAT)-1955-8-5] [REFERRED TO]
RAMSWARUP SINGH VS. SUB DIVISIONAL OFFICER [LAWS(PAT)-1964-9-5] [REFERRED TO]
UPENDRA NARAIN SINGH VS. STATE OF BIHAR [LAWS(PAT)-1973-7-17] [REFERRED TO]
KARPOORI THAKUR VS. STATE OF BIHAR [LAWS(PAT)-1982-12-27] [REFERRED TO]
BHUPINDER SINGH VS. UNION OF INDIA [LAWS(P&H)-1997-5-63] [REFERRED]
MONNET ISPAT & ENERGY LIMITED VS. UNION OF INDIA [LAWS(CHH)-2013-1-6] [REFERRED TO]
M/S HOLYSTAR NATURAL RESOURCES PVT. LTD. VS. UNION OF INDIA [LAWS(DLH)-2014-1-125] [REFERRED TO]
MOHD SUBHAN VS. STATE [LAWS(J&K)-1955-8-2] [REFERRED TO]
BAJRANGLAL NANDALAL VS. COMMISSIONER OF TAXES [LAWS(GAU)-1959-2-4] [REFERRED TO]
ADANI GAS LIMITED VS. AHMEDABAD MUNICIPAL CORPORATION AND ORS [LAWS(GJH)-2013-10-272] [REFERRED TO]
HOWRAH NAGARIK SAMITY AND ORS. VS. STATE OF WEST BENGAL AND ORS. [LAWS(CAL)-1956-8-16] [REFERRED TO]
R MOORTHY VS. STATE OF TAMIL NADU [LAWS(MAD)-2014-9-467] [REFERRED]
PRATABMULL RAMESWAR VS. MANICK CHAND DURGA PROSAD [LAWS(CAL)-1960-2-33] [REFERRED]
TILOKCHAND GOPALDAS VS. STATE [LAWS(RAJ)-1951-9-32] [REFERRED]
POWER MACHINES INDIA LIMITED VS. STATE OF MADHYA PRADESH & ORS. [LAWS(SC)-2017-4-67] [REFERRED TO]
ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED VS. STATE OF GUJARAT [LAWS(GJH)-2017-4-273] [REFERRED TO]
SATINDER SINGH VS. UNION OF INDIA AND OTHERS [LAWS(P&H)-2017-8-212] [REFERRED TO]
LENNOX JAMES ELLIS VS. UNION OF INDIA [LAWS(DLH)-2019-1-2] [REFERRED TO]
PROPERTY OWNERS ASSOCIATION AND OTHERS VS. STATE OF MAHARASHTRA [LAWS(BOM)-2019-4-227] [REFERRED TO]
R BHOOPATHI REDDY VS. CHAIRMAN, TELANGANA STATE LEGISLATIVE COUNCIL [LAWS(TLNG)-2019-7-28] [REFERRED TO]
DR. JAISHRI LAXMANRAO PATIL VS. THE CHIEF MINISTER & ORS [LAWS(SC)-2021-5-9] [REFERRED TO]
LALIT KUMAR JAIN VS. UNION OF INDIA [LAWS(SC)-2021-5-25] [REFERRED TO]
DRAVIDA MUNNETARA KAZHAGAM VS. UNION OF INDIA AND ORS. [LAWS(MAD)-2021-3-394] [REFERRED TO]
INDEPENDENT SCHOOLS ASSOCIATION CHANDIGARH VS. UNION OF INDIA [LAWS(P&H)-2021-5-34] [REFERRED TO]


JUDGEMENT

KANIA C. J - (1.).
(2.)THIS is a reference made by the President of India under article 143 of the Constitution asking the court's opinion on the three questions submitted for its consideration and report. The three questions are as follows:- '(1) Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in what particulars or particulars or to what extent ultra vires the Legislature which passed the said Act ?' Section 7 of the Delhi Laws Act, mentioned in question, runs as follows :-- '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.' '(2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act ?' Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows:-- ''Extension of Enactments to Ajmer-Merwara.--The central government may, by notification in the official gazette, extend to the Province of Ajmer-Merwara 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.' '(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament ?' 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 S. 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. It is therefore necessary to have an idea of the legislative powers of the Indian Legislature during those three periods. Without going into unnecessary details, it will not be out of place to know the historical background. The East India Company first started its operations as a trading company in India and gradually acquired political influence. The Crown in England became the legislative authority in respect of areas which had come under the control of the East India Company. The Indian councils Act of 1861, section 22, gave power to the governor-General in council, with additional nominated members, to make laws. The constitutional position therefore was that the British Parliament was the sovereign body which passed the Indian councils Act. It gave the governor-General in council in his legislative capacity powers to make laws over the territories in India under the governance of the Crown. Under the English Constitution the British Parliament with its legislative authority in the King and the two Houses of Parliament is supreme and its sovereignty cannot be challenged anywhere. It has no written Charter to define or limit its power and authority. Its powers are a result of convention but are now recognised as completely absolute, uncontrolled and unfettered. Sir Cecil Cart in his book on English Administrative Law : "A more basic difference between the constitution of the United States and Britian is the notorious fact that Britian has no written Constitution, no fundamental statute which serves as a touchstone For all other legislation and which cannot be altered save by some Specially solemn and dilagory process. In Britian the King in Parliament is all powerful. There is no Act which cannot be passed and will not be valid within the ordinary limits of judicial interpretation... Even Magna Carta is not inviolate ... The efficient secret of the English Constitution was the close union and nearly complete fusion of the executive authority is entrusted to a committee consisting of members of the dominant party in the legislature and in the country"
It is further stated that it is for this reason that there is no law which the King in Parliament cannot make or unmake whether relating to the Constitution itself or otherwise; there is no necessity as in States whose Constitutions are drawn up in a fixed and rigid form and contained in written documents for the existence of a judicial body to determine whether any particular legislative Act is within the constitutional powers of Parliament or not; and laws affecting the Constitution itself may be enacted with the same ease and subject to the same procedure as ordinary laws. In England, when occasions of conferment of powers on subordinate bodies became frequent and assumed larger scope, questions about the advisability of that procedure were raised and a Committee on the Minister's Powers, what is generally described as the Donoughmore Committee was appointed. The Committee recommended that certain cautions should be observed by the Parliament in the matter of conferment of such powers on subordinate bodies. This is natural because of the well recognised doctrine of the English Constitution that Parliament is supreme and absolute and no legislation can control its powers.

Such a legislative body which is supreme has thus certain principal characteristics. It is improper to use the word 'constitutional' in respect of laws passed by such a sovereign body. The question of constitutionality can arise only if there is some touchstone by which the question could be decided. In respect of a sovereign body like the British Parliament there is no touchstone. They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws. Such laws are changed by the same body with the same ease as any other law. What law follows from this is that no court or authority has any right to pronounce that any Act of Parliament is unconstitutional. In Dicey's Law of the Constitution, 9th Edition, in considering the Constitution of France, It was observed that the supreme legislative power under the Republic was not vested in the ordinary Parliament of two Chambers, but in a National Assembly or Congress composed of the Chamber of Deputies and the Senate sitting together. The Constitutions of France which in this respect were similar to those of Continental polities exhibited as compared with the expansiveness or flexibility of English institutions that characteristic which was described by the author as rigid. A flexible constitution was one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body. The flexibility of the British Constitution consists in the right of the Crown and the two Houses to modify or repeal any law whatever. They can modify or repeal in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London. Therefore, in England laws are called constitutional because they refer to subjects proposed to affect the fundamental institutions of the State and not because they are legally more sacred or difficult to change than other laws. Under the circumstances the term 'constitutional law or enactment' is rarely applied to any English statute to give a definite description to its character. Under a rigid constitution, the term 'constitutional' means that a particular enactment belongs to the articles of the constitution and cannot be legally changed with the same ease and in the same manner as ordinary laws, and it is because of this characteristic that courts are invested with powers to determine whether a particular legislation is permitted or not by the constitution. Such a question can never arise in respect of an enactment of the British Parliament. 336

As against this, the governor-General in council with legislative powers established under the Indian councils Act stood in a different position. Its charter was the Indian councils Act. Its powers were there necessarily defined and limited. That power, again, at any time could be withdrawn, altered and expanded or further curtailed. Moreover, as the powers were conferred by an Act of the British parliament, the question whether the action of the governor-General in council in his legislative capacity was within or without its legislative power was always capable of being raised and decided by a court of law. In Dicey's Law of the Constitution, 9th Edition the author has distinguished the position of a sovereign legislature and a subordinate law-making body. The distinction is drawn from the fact that the subordinate legislatures have a limited power of making laws. At page 99, he has specifically considered the position of the legislative council of British India prior to 1915 and stated as follows:--'Laws are made for British India by a Legislative council having very wide powers of Legislation. This council, or, as it is technically expressed, the governor-General in council, can pass laws as important as any Acts passed by the British Parliament. But the authority of the council in the way of law-making is as completely subordinate to, and as much dependent upon, Acts of Parliament as is the power of the London and North Western Railway Company to make bye-laws ...... Now observe, that under these Acts the Indian council is in the strictest sense a non-sovereign legislative body, and this independently of the fact that the laws or regulations made by the governor-General in council can be annulled or disallowed by the Crown; and note that the position of the council exhibits all the marks or notes of legislative subordination. (1) The council is bound by a large number of rules which cannot be changed by the Indian legislative body itself and which can be changed by the superior power of the Imperial parliament. (2) The Acts themselves, from which the council derives its authority, cannot be changed by the council and...... they stand in marked contrast with the laws or regulations which the council is empowered to make. These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the council may legislate ......(3) The courts in India ...... may, when the occasion arises, pronounce upon the validity or constitutionality of laws made by the Indian council.' It is therefore clear that the Indian Legislature in 1861 and up to 1915 was a subordinate legislature and not a sovereign legislature.

At this stage it may again be noticed that the government was unitary and not federal. There was no distribution of legislative powers as between the Centre and the different Provinces. Another important factor to be borne in mind is that while the British Parliament was supreme, its executive government came into power and remained in power so long only as the Parliament allowed it to remain and the Parliament itself was not dissolved. The result is that the executive government was a part of the legislature and the legislature controlled the actions of the executive. Indeed, the legislature was thus supreme and was in a position effectively to direct the actions of the executive government. In India the position was quite different if not the reverse. The governor-General was appointed by the Crown and even after the expansion of the legislative body before the government of India Act of 1915 in numbers, it had no control over the executive. In respect of the Indian Legislature functioning prior to the government of India Act of 1915 the control from the secretary of State was justified on the ground that the Provincial Legislatures were but an enlargement of the executive government for the purpose of making laws and were no more than mere advisory bodies without any semblance of power. The executive government of India was not responsible to the Indian Legislature and the composition of the Indian Legislature was such that the executive officers together with the nominated members constituted the majority in the Legislature. The result was that the Legislative council was practically a creature of the executive government of India and its functions were practically limited to registering the decrees of the executive government. It would not be wrong, according to Mr. Cowell in his lecture on 'Courts and Legislative Authorities in India,' to describe the laws made in the Legislative councils as in reality the orders of government. Every Bill passed by the governor General's council required his assent to become an Act. The Indian councils Act of 1892 empowered the governor-General in council, with the approval of the secretary of State in council, to make regulations as to the conditions under which nomination of the additional members should be made. The word 'election' was carefully avoided. The existence of a strong official block in the councils was the important feature of the Act. As noticed by a writer on Indian Constitution, the government maintained a tight and close control over the conduct of official members in the Legislature and they were not allowed to vote as they pleased. They were not expected to ask questions or move resolutions or (in some councils) to intervene in debate without government's approval. Their main function was to vote--to vote with the government. However eloquent the non-official speakers might talk and however reasonable and weighty their arguments might be, when the time for voting came the silent official flanks stepped in and decided the matter against them. All these factors contributed to the unreality of the proceedings in the council because the number of elected members was small and the issue was often known beforehand. Speaking in the. House of Lords in December 1908 on the Bill which resulted in the government of India Act of 1909, Lord Morley, the then secretary of State for India, declared: 'If I were attempting to set up a Parliamentary system in India, or if it could be said that this Ch. of rules led directly or necessarily up to the establishment of a Parliamentary system in India. I for one would have nothing at all to do with it ......... A Parliamentary system is not at all the goal to which I would for one moment aspire.' The constitution of the central Legislative council under the Regulation of November, 1909, as revised in 1912, was this: JUDGEMENT_332_AIR(SC)_1951Html1.htm 337

(3.)THE executive government was thus supreme and was not bound to obey or carry out the mandates of the legislature. Instances where Finance Bills were rejected and other Bills were backed by the popular feeling and which decisions the governor-General overruled, are well known. THE Indian Legislature was powerless to do anything in the matter. Without the consent of the executive government no Bill could be made into an Act nor an Act could be amended or repealed without its consent. THE possibility of the Legislature recalling the power given tinder an Act to the executive against the latter's consent was therefore nil. Once an Act giving such power (like the Delhi Laws Act) was passed, practically the power was irrevocable. In my opinion, it is quite improper to compare the power and position of the Indian Legislature so established and functioning with the supreme and sovereign character of the British Parliament.
The legislative power of the Indian Legislature came to be changed as a result of the Act of 1915 by the creation of Provincial legislatures. I do not propose to go into the details of the changes, except to the extent they are directly material for the discussion of the questions submitted for the court's opinion, Diarchy was thus created but there was no federation under the Act of 1915. Under the government of India Act, 1935, the legislative powers were distributed between the central legislature and the Provincial legislature, each being given exclusive powers in respect of certain items mentioned in Lists 1 and 2 of the Seventh Schedule. List 3 contained subjects on which it was open to the Centre or the Province to legislate and the residuary power of legislation was controlled by section 104. This Act however was still passed by the British Parliament and therefore the powers of the Indian central legislature as well as the Provincial legislatures were capable of being altered, expanded or limited according to the desire of the British Parliament without the Indian legislature or the people of India having any voice in the matter. Even under this Act, the executive government was not responsible to the central Legislature or the Provincial Legislature, as the case may be. I emphasize this aspect because it shows that there was no fusion of legislative and executive powers as was the case with the Constitution in England. The result of the Indian Independence Act, 1947, was to remove the authority of the British Parliament to make any laws for India. The Indian central Legislature was given power to convert itself into a Constituent Assembly to frame a Constitution for India, including the power to amend or repeal the government of India Act, 1935, which till the new Constitution was adopted, was to be the Constitution of the country. Even with that change it may be noticed that the executive government was not responsible to the central Legislature. In fact with the removal of the control of the Parliament it ceased to be responsible to anyone.

Under the Constitution of India as adopted on the 26th of January, 1950, the executive government of the Union is vested in the President acting on the advice of the Ministers. A Parliament is established to make laws and a Supreme court is established with the powers defined in different articles of the Constitution. The executive, legislative and judicial functions of the government, which have to be discharged, were thus distributed but the articles giving power to these bodies do not vest the legislative or judicial powers in these bodies expressly. Under the Constitution of India, the Ministers are responsible to the legislatures and to that extent the scheme of the British Parliament is adopted in the Constitution. While however that characteristic of the British Parliament is given to the Indian Legislature, the principal point of distinction between the British Parliament and the Indian Parliament remains and that is that the Indian Parliament is the creature of the Constitution of India and its powers, rights, privileges and obligations have to be found in the relevant articles of the Constitution of India. It is not a sovereign body, uncontrolled with unlimited powers. The Constitution of India has conferred on the Indian Parliament powers to make laws in respect of matters specified in the appropriate places and Schedules, and curtailed its rights and powers under certain other articles and in particular by the articles found in Ch. 111 dealing with Fundamental Rights. In case of emergency where the safety of the Union of India is in danger, the President is given express power to suspend the Constitution and assume all legislative powers. Similarly. in the event of the breaking down of the administrative machinery of a State, the President is given powers under article 257 to assume both legislative and executive powers in the manner and to the extent found in the article. There can be no doubt that subject to all these limitations and controls, within the scope of its powers and on the subjects on which it is empowered to make law, the Legislature is supreme and its powers are plenary.

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