CONSTITUTION OF INDIA AND DELHI LAWS ACT 1912 Vs. UNION OF INDIA

JUDGEMENT

(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"

(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.