Civil Appeal No 1258 of 1969
From the Judgment and Decree dated 17 2 1969 of the Kerala High Court in Writ Appeal No 45 of 1968
V A Seyid Mohammed and K M K Nair for the Appellant
Ex Parte for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
The perennial nagging problem of delegated legislation and the so called Henry VIII clause have again come up for decision in this appeal by the State of Kerala
Section 60 of the Madras Cooperative Societies Act 1932 and a notification issued under that provision were struck down by the High Court of Kerala on the ground of unconstitutional delegation of legislative power
Certain consequential directions were issued by the High Court
Those directions have long since worked themselves out and so the party who invoked the jurisdiction of the High Court under Article 226 of the Constitution has no longer any surviving interest
The State of Kerala is however interested in sustaining the validity of Section 60 and has filed this appeal
Lawyers and judges have never ceased to be interested in the question of delegated legislation and since the case we 262 have been blessed by an abundance of authority the blessing not necessarily unmixed
We do not wish in this case to search for the precise principles decided in the case nor to consider whether N K Papiah  Sons vs Excise Commissioner1 beats the final retreat from the earlier position
For the purposes of this case we are content to accept the policy and guidelines theory and seek such assistance as we may derive from cases where near identical provisions have been considered
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 equity 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 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 263 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
In Harishankar Bagla and Anr
vs The State of Madhya Pradesh1 the question arose whether Section 3 of the Essential Supplies Temporary Powers Act 1946 which empowered the Central Government to make orders providing for the regulation or prohibition of the production supply and distribution of essential commodities and trade and commerce therein was void for excessive delegation
The Court said it was not and observed  the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct
The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law
The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct
In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices
The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3
In The Edward Mills Co Ltd Beawar vs The State of Ajmer2 this Court considered the question whether section 27 of the Minimum Wages Act under which power was given to the Government to add to either part of the schedule any employment in respect of which it was in its opinion that minimum wages should be fixed exceeded the 264 limits of permissible delegation and was therefore unconstitutional
The Court held that the legislative policy was apparent on the face of the enactment which aimed at the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour
The intention of the Legislature was not to apply the Act to all industries but only to those industries where by reason of unorganised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low
In enacting section 27 there was therefore no delegation of essential legislative power
In Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh1 this Court held that it was not unconstitutional for the Legislature to leave it to the Executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid the rates at which it is to be charged in respect of different classes of goods and the selection of goods in respect of which exemption from taxation might be granted etc
In Sardar Inder Singh vs The State of Rajasthan2 the validity of s15 of the Rajasthan Protection of Tenants Ordinance which authorised the Government to exempt any person or class of persons from the operation of the Act was upheld and the argument that there was impermissible delegation of legislative power was repelled on the ground that the Preamble to the Ordinance set out with sufficient clarity the policy of the Legislature
In Vasantal Maganbhai Sanjanwala vs The State of Bombay3 section 6 2 of the Bombay Tenancy  Agricultural Lands Act was challenged as permitting excessive delegation of legislative power as it enabled the Government to fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or to fix such rate on any suitable cases as it thought fit
This Court noticed that the Act was undoubtedly a beneficent measure as shown by the Preamble which stated that the object of the Act was to improve the economic and social conditions of peasants and ensure the full and efficient use of land for agricultural
Bearing in mind the Preamble and the material provisions of the Act it was held that the power delegated was within permissible limits
265 In Jyoti Pershad vs The Administrator for the Union Territories of Delhi1 Rajagopala Ayyangar J made some useful observations which may be extracted here In regard to this matter we desire to make two observations
In the context of modern conditions and the variety and complexity of the situations which present themselves for solution it is not possible for the Legislature to envisage in detail every possibility and make provisions for them
The Legislature therefore is forced to leave the authorities created by it an ample discretion limited however by the guidance afforded by the Act
This is the ratio of delegated legislation and is a process which has come to stay and which one may be permitted to observe is not without its advantages
So long therefore as the Legislature indicates in the operative provisions of the statute with certainty the policy and purpose of the enactment the mere fact that the legislation is skeletal or the fact that a discretion is left to those entrusted with administering the law affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate
The second is that if the power or discretion has been conferred in a manner which is legal and constitutional the fact that Parliament could possibly have made more detailed provisions could obviously not be a ground for invalidating the law
 In Mohammad Hussain Gulam Mohammad vs The State of Bombay2 the question was about the vires of section 29 of the Bombay Agricultural Produce Markets Act
It gave power to the State Government to add to or amend or cancel any of the items of agricultural produce specified in the schedule in accordance with prevailing local conditions
The attack was on the ground that legislative power had been delegated to an extent not permissible
The Court while noticing that section 29 itself did not provide for any criterion for determining which item of agricultural produce should be put into the schedule nevertheless upheld its vires on the ground that guidance was writ large in the various provisions and the scheme of the Act
It was observed that in each case the State Government had to consider whether the 266 volume of trade in the produce was of such a nature as to give rise to wholesale trade so as to merit inclusion in the schedule
Let us now turn to section 60 of the Madras Cooperative Societies Act 1932 whose vires is in question and which is as follows section 60 The State Government may by general or special order exempt any registered society from any of the provisions of this Act or may direct that such provisions shall apply to such society with such modifications as may be specified in the order
 The provision is a near Henry VIII clause
But to give it a name is not to hang it
We must examine the preamble the scheme and other available material to see if there are any discernible guidelines
Sure the Cooperative Societies Act is a welfare legislation
Its preamble proclaims Whereas it is expedient further to facilitate the formation and working of co operative societies for the promotion of thrift self help and mutual aid among agriculturists and other persons with common economic needs so as to bring about better living better business and better methods of production and for that purpose to consolidate and amend the law relating to co operative societies in the State of Madras The policy of the Act is there and so are the guidelines
Why the legislation  To facilitate the formation and working of Cooperative Societies
Cooperative Societies for what purpose  For the promotion of thrift self help and mutual aid
Amongst whom  Among agriculturists and other persons with common economic needs
To what end  To bring about better living better business and better methods of production
The objectives are clear the guidelines are there
There are numerous provisions of the Act dealing with registration of societies rights and liabilities of members duties of registered societies privileges of registered societies property and funds of registered societies inquiry and inspection supersession of committees of societies dissolution of societies surcharge and attachment arbitration etc
We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble
But numerous as the provisions are they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies
In fact the too rigorous application of some of the provisions of the Act may itself occasionally result 267 in frustrating the very objects of the Act instead of advancing them
It is to provide for such situations that the Government is invested by section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act
Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications
The power given to the Government under section 60 of the Act is to be exercised so as to advance the policy and objects of the Act according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out are clear
We are therefore of the view that section 60 is not void on the ground of excessive delegation of legislative power
We so declare and otherwise dismiss the appeal
NVK Appeal dismissed


Summary:
Section 60 of the Madras Cooperative Societies Act 1932 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications
In the appeal to this Court on the question whether Section 60 of the Act is void on the ground of unconstitutional delegation of legislative power
 HELD 1
Section 60 is not void on the ground of excessive delegation of legislative power
267 C 2
The power given to the Government under section 60 of the Act is to be exercised so as to advance the policy and objects of the Act according to the guidelines enunciated in the preamble and the other provisions of the Act267 B 3
The Act a welfare legislation to facilitate the formation and working of cooperative societies consists of numerous provisions dealing with registration of societies rights and liabilities of members duties of registered societies privileges of registered societies property and funds of registered societies inquiry and inspection supersession of committees of societies dissolution of societies surcharge and attachment arbitration etc
The too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them
To provide for such situations the Government was invested by section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act266 D G H 277 A 4
i 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
While excessive delegation may amount to abdication delegation unlimited may invite despotism uninhibited
The theory has therefore been evolved that the legislature cannot delegate its essential function
262 H 263 A ii 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 261 fundamental issues instead of technical and situational intricacies which are better left to better equipped full time expert executive bodies and specialist public 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
262 E G iii 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 generous degree of latitude must be held permissible in the case of welfare legislation particularly these statutes which are designed to further the Directive Principles of State Policy
263 B   M K Papiah  Sons vs Excise Commissioner  Harishankar Bagla and Anr
vs The State of Madhya Pradesh 1955 1 SCR p 380  388 The Edward Mills Co Ltd Beawar vs The State of Ajmer  Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh  Sardar Inder Singh vs The State of Rajasthan Vasantlal Maganbhai Sanjanwala vs The State of Bombay  Jyoti Prasad vs The Administrator for the Union Territory of Delhi  Mohammad Hussain Gulam Mohammad vs The State of Bombay   referred to