vil Appeal No 2448 of 1989 etc
From the Judgment and Order dated 2551988 of the Punjab and Haryana High Court in CWP No 736 of 1987
G Ramaswamy Additional Solicitor General Harbhawan Walia Kapil Sibal MS Gujral Anil Dev Singh MR Shar ma DV Sehgal Naresh Bakshi R Bana Jitendra Sharma SM Satin SK Mehta D Mehta Atul Nanda PN Pun BB Sawhney MC Dhingra AK Gupta TC Sharma Mrs Sushma Suri Ms Indu Goswami RS Yadav Manoj Prasad Manoj Swarup ML Verma section Bagga DS Gupta BR Kapur Anis Ahmad Khan section Sehgal and 637 NK Aggarwal for the appearing parties
The Judgment of the Court was delivered by RANGANATHAN J
This is a batch of appeals and writ petitions challenging the validity of a notification issued on15121986 by the Central Government under section 87 of the Act of Parliament No 31 of 1966 hereinafter referred to as the Reorganisation Act 
By this notification the Central Government purported to extend to the Union Territory of Chandigarh hereinafter referred to also as Chandigarh  the provisions of the East  Punjab Urban Rent Restriction Amendment Act 1985 Punjab Act 2 of 1985 hereinafter referred to as the 1985 Act  as it was in force in the State of Punjab at the date of the notification and subject to the modifications men tioned in the said notification
The Punjab and Haryana High Court by its judgment in Ramesh Birch vs Union AIR 1988 P  H 281 upheld the validity of the above notification and hence the special leave petitions
The writ petitions have been directly filed in this Court challenging the validity of the notification
In view of the importance of the ques tion involved we have heard the parties on the merits of the cases
We therefore grant special leave in the special leave petitions and rule nisi in the writ petitions and proceed to dispose of the appeals and the writ petitions by this common judgment
Section 87 of the Reorganisation Act is in the following terms 87
Power to extend enactment to Chandigarh The Central Government may by notification in the Official Gazette extend with such restrictions or modifications as it thinks fit to the Union Territory of Chandi garh any enactment which is in force in a State at the date of the notification
 There are other provisions of this Act which will be referred to later
But it is necessary to refer to section 87 here for a specific purpose and that is to point out that the provisions of section 87 are pari materia with the provisions of Section 7 of the Delhi Laws Act 19 12 and Section 2 of the Ajmer Marwara Extension of Laws Act 1947 which for convenience we shall refer to as Act I and Act II respectively
These provisions read as follows Section 7 of Act 1 The Provincial Government may by 638 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 Section 2 of Act H The Central Government may by notification in the official Gazette extend to the province of Ajmer Marwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other province at the date of such notifi cation
 It is also necessary here to contrast the above two provisions with section 2 of the Part C States Laws Act 1950 hereinafter referred to for purposes of convenience as Act III
That provision reads as follows Section 2 of Act 111 The Central Government may by notification in the official Gazette extend to any Part C State other than Coorg and the Amendment and Nicobat Islands or 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 reference to these provisions is being made at this stage because the validity of section 7 of the and section 2 of Ajmer Marwara Extension of Laws Act 1947 were upheld by this court in the decision reported as In re   The decision also upheld the validity of the first part of section 2 of Act III but struck down the second part of that provision underlined above as vitiated by the vice of excessive delegation
A good deal of the arguments addressed before us naturally turned on the ratio and effect of the decision of this Court in the case supra but before turning to the arguments it is necessary to give a brief history of section 87 the interpretation of which is presently in question
When the Constitution of India came into force on 26th January 1950 the component units of the Indian Union were grouped into four 639 types of territories
There Were nine States in Part A one of which was Punjab earlier known as East Punjab nine States in Part B which included Pepsu ten States in Part C which included Himachal Pradesh and only one State namely Andaman and Nicobar Islands in Part D
At this stage although several of the former Indian States had acceded to the Indian Union the process of their integra tion as component units of the Indian Union was not com plete
Some units were accepted as units of the Union in the form in which they existed at the time of independence while some were formed by grouping together one or more of the former princely States
After the recommendations of the States Reorganisation Commission in 1955 the Constitution was amended to classify the units of the Indian Union into States and Union Territories
At the time of the 1956 reorganisation one State of Punjab was created by merging the erstwhile States of Pepsu and Punjab
In 1966 a new State of Haryana was created by carrying out certain territories from the State of Punjab
Certain hill areas of the Punjab were merged with the ad joining Union Territory of Himachal Pradesh
A new Union Territory of Chandigarh was carved out which became the joint capital of Punjab and Haryana
The Punjab Reorganisa tion Act 1966 gave effect to these proposals
Sections 3 and 4 dealt with the delimitation of the territories of the States of Punjab and Haryana and the Union Territories of Himachal Pradesh and Chandigarh
One of the important as pects of the reorganisation in respect of which specific statutory provision was needed was regarding the applica bility of laws to the various territories which underwent reoganisation
This was effected by Part X of the Reorgani sation Act comprising of sections 86 to 97
It is however sufficient for our present purposes to refer to the provi sions contained in sections 87 to 90
These provisions were in the following terms Section 87 Power to extend enactments to Chandigarh set out earlier
Section 88 Territorial extent of laws The Provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immedi ately before the appointed day extends or applies and territorial references in any such law to the State of Punjab shall until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the State immediately before 1 the appointed day
640 Section 89 Power to adapt laws For the purpose of facilitating the application in relation to the State of Punjab or Haryana or to the Union territory of Himachal Pradesh or Chandigarh of any law made before the appoint ed day the appropriate Government may before the expiration of two years from that day by order make such adaptations and modifications of the law whether by way of repeal or amend ment as may be necessary or expedient and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered repealed or amended by a competent Legislature or other competent authority
Section 90 Power to construe laws 1 Not withstanding that no provision or insufficient provision has been made under section 89 for the adaptation of a law made before the ap pointed day any court tribunal or authority required or empowered to enforce such law may for the purpose of facilitating its applica tion in relation to the State of Punjab or Haryana or to the Union of territory of Himachal Pradesh or Chandigarh construe the law in such manner without affecting the substance as may be necessary or proper in regard to the matter before the court tribu nal or authority
2 Any reference to the High Court of Punjab in any law shall unless the context otherwise requires be construed on and from the ap pointed day as a reference to the High Court of Punjab and Haryana
The dispute in this batch of cases is regarding the applicability of certain rent laws to the Union Territory of Chandigarh
The territories originally comprised in the former Province of East Punjab later designated as the State of Punjab were governed by the East Punjab Urban Rent Restriction Act 1949 hereinafter referred to as the pri ncipal Act  or the 1949 Act 
This Act applied to all urban areas in the State of Punjab
Section 2j of that Act defined urban area  as any area administered by a municipal committee a cantonment board a town committee or a noti fied area committee or any area declared by the State Gov ernment by notification to be an urban area for the purposes of the Act
The Central Government had earlier issued under section 89 the Punjab Reorganisation Chandigarh Adapta tion of Laws on State and Concurrent Subjects Order 1968 wef 641 11166
Paragraph 4 of the Order directed that in all the existing laws in its application to the Union Territory of Chandigarh any reference to the State of Punjab should be read as a reference to the Union Territory of Chandigarh and para 21b of the Order defined the expression existing law 
The Central Government in exercise of the power conferred by section 2j of the principal Act issued on 131072 a notification declaring the area comprising Chand igarh to be an urban area  for the purposes of the princi pal Act
The notification was published in the Gazette of India on 41172
This notification was however quashed by the Punjab  Haryana High Court by its decision in the case of Harkishan Singh vs Union AIR 1975 P  H 160
That was on the short ground that as no notification had been issued prior to 11166 under section 2j declaring Chandigarh to be an urban area the Act could not be said to have been in force within the said area prior to 11166
Neither section 88 not the notification of 131072 could it was held be effective to make the principal Act operative in Chandigarh unless it had first been applied to the Union Territory of Chandigarh or any part thereof by a notification under section 87 with the necessary adaptation
This decision of a Full Bench of the High Court was rendered on 9101974
Two courses were open to the Government to set right the lacunae pointed out by the High Court
The first as pointed out by the Full Bench was to extend the principal Act to Chandigarh by a notification under section 87
The second was to invoke the legislative powers of Parliament available in respect of Chandigarh under article 2464 of the Constitu tion to enact a legislation for this purpose
But it was important that any corrective measure had to be made retro spective in its operation if the large number of suits for eviction that had been filed in the meanwhile on the strength of the notification and were pending disposal in various courts were to be saved from being rendered non maintainable consequent on the decision of the High Court
Presumably for this reason the second of the above courses was adopted and Parliament enacted the East Punjab Urban Rent Restriction Extension to Chandigarh Act Central Act 54 of 1974 hereinafter referred to as the 1974 Act 
Section 3 of this Act provided for the enforcement of the principal Act in Chandigarh
It reads Section 3 Extension of East Punjab Act 111 of 1949 to Chandigarh Notwithstanding anything contained in any judgment decree or order of any court the Act shall subject to the 642 modifications specified in the Schedule be in force in and be deemed to have been in force with effect from 4th day of November 1972 in the UniOn Territory of Chandigarh as if the provisions of the Act so modified had been included in and formed part of this section and as if this section had been in force at all material times Three features of the above legislation may be empha sised at this stage
The first was that though this pur ported to extend the principal Act to Chandigarh it was in truth and substance a Parliamentary enactment applicable to Chandigarh incorporating within itself by reference for purposes of convenience and to avoid repetition all the provisions of the principal Act
The second was that the Act was given retrospective effect from 41172 the date on which the previous notification under section 89 had been gazetted with a view to regularise all proceedings for eviction which might have been initiated during the inter regnum
Thirdly the principal Act was re enacted subject to the modifications specified in the Schedule
These included a modification of the definition of urban area  as includ ing the area comprising Chandigarh as defined in section 2 of the Capital of Punjab Development Regulation Act 1952 and such other areas comprised in the Union Territory of Chandigarh as the Central Government may by notification declare to be urban for the purposes of the Act
Before turning to the issues before us it is necessary to refer to three subsequent developments i In 1976 when Parliament was not in session the President of India promulgated Ordinance 14 of 1976 on 171276
By this Ordinance the 1949 Act as in force in Chand igarh was amended in the following respects a In section 13 an exlanation and sub section 4A were introduced b New sections 13A 18A and 18B were insert ed c A new sub section 2A in section 19 was inserted d A Schedule II prescribing the form of summons to be issued in proceedings under the newly inserted section 13A was added
This ordi nance was allowed to lapse and was not enacted into law thereafter
643 ii In 1982 Parliament passed the East Punjab Rent Restriction Chandigarh Amendment Act No 42 of 1983 hereinafter referred to as the 1982 Act 
By this Act two amend ments were effected to the principal Act in its application to Chandigarh
One was a formal one replacing reference to East Pun jab by a reference to Punjab
The second was the substitution of a new definition of non residential building in section 2d of the Act
This amendment Act did not however incorporate the amendments earlier effected in the principal Act as in force in Chandigarh by the Ordinance of 1976 which had lapsed though this opportunity could have been availed of by Parliament had it been so mind ed to introduce those amendments as well
iii In 1985 the provisions of the principal Act were amended in their applica tion to the State of Punjab
The legislature of the State of punjab enacted Punjab Act 2 of 1985 hereinafter referred to as the 1985 Act  by which the principal Act was amended to insert therein new sections 13A 18A and 18B and a new Second Schedule and to make certain amendments in sections 13 and 19 of the Act
These amendments were substantially the same as those that had been effected by the Ordinance of 1976 except that a new defi nition of specified landlord was added in section 2 and the other provisions verbally altered in consequence
This amendment came into force wef 1611
When the last of the above developments took place the Central Government considered it necessary to extend the 1985 Act to the territory of Chandigarh
In order to effec tuate this object it issued a notification dated 151286 purportedly in exercise of its powers under section 87 of the Reorganisation Act
By this notification the Central Government extended to the Union Territory of Chandigarh the provisions of the 1985 Act as in force in the State of Punjab at the date of the notification ie to say as on 15121986 and subject to the modifications mentioned therein
The resultant position is that while the provisions of the principal Act had been brought into force in the Union Territory of Chandigarh wef 41172 by an Act of Parliament the provisions of the 1985 Act have been extend ed to the territory of Chandigarh by means of a notification of the Central Government issued under section 87
The short question posed before us is whether the latter extension is permissible and valid in law
644 Ex facie the impugned notification appears to be intra vires section 87
The 1985 Act is an enactment in force in a State on the date of the notification and section 87 clearly permits the Central Government to extend it to Chandigarh
If the petitionersappellants seek to challenge its validi ty they have either to contend that section 87 itself is ultra vires the Constitution or that though section 87 is a valid provision on a proper construction thereof the notifica tion travels beyond the area of extension permitted Under it and is hence invalid
Both these contentions have been urged before us
Sri Gujral had so much confidence in the latter argument that he had made it his principal argument taking up the former as a plea in the alternative
But young Sri Swarup boldly concentrated on attacking the validity of section 87 while also lending support to Sri Gujral s principal argument as an argument in the alternative
We shall proceed to examine these two contentions
The argument contesting the validity of section 87 proceeds on the following lines
The main premise of the argument is that under Article 2464 of the Constitution Parliament has exclusive power to make laws on matters enumerated in the State List and Concurrent List ie List II and List III of the Seventh Schedule to the Constitution in respect of a Union Territory except where as in the case say of Pondicherry the territory has a legislative assembly in which event the power will vest in such assembly under section 18 of the Government of Union Territories Act 18 of 1963
There being no legislative assembly set up for Chandigarh Parliament and Parliament alone has any legislative power with regard to that territory
This power however plenary and extensive cannot be self effacing
In purported exer cise of such power Parliament cannot delegate its legisla tive function in favour of an executive authority to such an extent as to amount to an abdication of such legislative function
The argument is that this is exactly what has been done under section 87
By enacting section 87 Parliament instead of legislating for the Union Territory has left it to the Central Government to decide for all time to come what should be the laws in force in that territory
This it is said is clear from the extraordinary ambit of the powers conferred by section 87 on the Central Government in three impor tant directions i section 87 is not transitional in nature but confers an all time power on the executive
This will be clear if one contrasts it with section 89
Section 89 gives a limited power to the Central Government to adapt existing laws within a period of two years
Though as will be noticed later section 89 is wider in certain respects it is clearly a transitory provision intended to enable the Central Government to tide over the 645 difficulties caused by the sudden creation of a new territo ry and the immediate need for having laws applicable therto
The transitoriness is indeed emphasised by the concluding words of section 89 which are really superfluous that the adaptation will hold the field only until they are altered repealed or amended by a competent legislature or authority
But section 87 empowers the Central Government to extend any legislation to Chandigarh at any time even today twenty three years after the passing of Reorganisation Act
ii The second feature of section 87 is this
Under it the Central Government could extend to the Union Territory any law in force in any part of India
For instance it could be the Rent Control Act in force in Punjab or the Rent Control Act in operation in a distant State like the State of Tamil Nadu
It could perhaps extend to the Union Territory some provisions of the rent control legislation in one State side by side with certain other provisions of legislations in force in any other State or States and thus enforce a law which would be an amalgam of various statutory provisions in force in various parts of the country
Though a conces sion against this possibility was made in case  at p 1005 it would seem to be possible if such provisions are contained in independent enactments
Here for eg the 1949 Act and the 1985 Act both of Pun jab have been made applicable to Chandigarh
But suppose after the provisions of the 1949 Act had been made applica ble to Chandigarh by the 1974 Act an amendment Act of the nature presently in question had been introduced not in the Punjab but say in Kerala there is nothing in the language of section 87 to prohibit the Central Government from extending the Kerala Amendment Act to Chandigarh to stand side by side with the 1974 Act
In other words the section confers on the executive government a wide power of choice for appli cation to Chandigarh of not only one legislative enactment on any subject from among various enactments on that subject in operation in various parts of the country but also of groups of provisions from one or more of them
There is no legislative guidance as to the manner in which these choices should be exercised by the executive government
iii The laws that can be extended to the Union Terri tory under section 87 would include not only the laws in force in any State in India on the date of the Reorganisation Act ie 11166 but any Act that may come into force in those States upto the date of the notification
If it had been restricted to laws in force as on the day the Reorganisation Act came into force one could at least say that Parliament could be attributed with a knowledge of the various provi sions in existence in 646 the various states and to have decided as a matter of policy that anyone of them could be good enough for Chandi garh and hence left it to the executive government to choose and extend any one of them for application to the territory
But section 87 goes further and enables extension by Gov ernment notification even of any legislation which might come into force in any part of India at any time between 1966 and the date of the notification
Parliament while enacting the Reorganisation Act could certainly have had no knowledge or even inkling of possible laws that might be enacted in future in any part of the country on any subject
The effect therefore of section 87 would be that the entire legislation for the Union Territory in respect of any particular subject would entirely depend upon the fancy of the Central Government without any sort of legislative or parliamentary application of mind except the fact that some legislature in some part of the country has considered the law good enough for the conditions prevailing in that terri tory
Learned counsel contends that these facets of section 87 clearly render it an instance of excessive delegation by Parliament to executive amounting in effect to the total abdication by Parliament of its legislative powers in regard to Chandigarh
The problem posed before us is what Chinnappa Reddy J in Registrar of Cooperative Societies vs Kunhambu  described as the perennial nagging problem of delegated legislation and the so called Henry VIII clause
This is an issue on which there is an abundance of authori ty of even larger Benches of this Court
The judgments in Rv
Burah 1878 51A 178 Jatindra Nath Gupta  the case   Hari Shankar Bagla  Rajnarain Singh   Sardar Inder Singh   Banarsi Das   Edward Mills  Western India Theatres 1959 Supp 2 SCR 71 Hamdard Dawakhana   Vasantlal Maghanbhai   Jyoti Prashad   Shama Rao  Mohammad Hussain Gulam Mohammad   Liberty Cinema   Devi Dass   Birla Cotton   Sitaram Bishambar Dayal   Hiralal Ratanlal   Gwalior Rayon   Papiah  and Kunhambu  and Brij Sunder Kapoor  can be referred to for a detailed discus sion and application of the relevant principles in the context of various kinds of legislative provisions
It is unnecessary for our present purposes to undertake a de tailed examination of the several opinions expressed in these cases
Suffice it to say that these decisions have been interpreted as holding that the power of 647 Parliament to entrust legislative powers to some other body or authority is not unbridled and absolute
It must lay down essential legislative policy and indicate the guidelines to be kept in view by that authority in exercising the delegat ed powers
In delegating such powers Parliament cannot abdicate its legislative functions in favour of such authority
Doubts have been expressed in some quarters as to the correctness of the principle indicated above
It has been suggested that had the question been res integra or even if one carefully analysed the observations made in these var ious cases there is much to be said for a different view advocated by the Privy Council in R vs Burah 1878 51A 178 and adhered to by it ever since
This view is that given the present system of Parliamentary democracy the extensive range of governmental functions today and the kind and quantity of legislation which modern public opinion requires the legislatures under the Constitution should be held to be supreme and unrestricted in the matter of legis lation and should not be prohibited from delegating some of their powers of legislation to such other agencies bodies or authorities as they may choose so long as they do not altogether divest themselves of their legislative power and confer them on another and so long as they retain the power whenever it pleases them to remove the agency they have created and set up another or take the matter directly into their own hands
The reasons put forward in support of this line of thought are these 1 The whole doctrine of excessive delegation is based either on the doctrine of separation of powers or on the doctrine of the law of agency delegata potestas non potest delegari neither of which can validly apply to the constitutional context we are concerned with
2 The Privy Council ever since its leading decision in R vs Burah 1878 51A 178 has taken this view consistently
This is also the view to which American and Australian courts have veered round in recent years
3 The doctrine enunciated in the above cases is so difficult of practical application and has resulted in such a large number of separate judgments that litigants are encour aged to raise the plea in respect of every conceivable piece of delegation banking on an off chance of being ultimately successful
648 4 The magnitude of the controversies raised on this issue is so great that legisla tions if invalidated on this ground have to be invariably validated with retrospective effect
The result is that on the one hand the implementation of important legislations is held up due to interim orders for the long period of pendency of the litigation and even the final determination on the other achieves no practical result
In short the consideration of such issues is practically a waste of judicial time
The doctrine is based on the theory that it is the legislature and not the execu tive that has to apply its mind to the basis of all legislation
Judicial dicta are not wanting which emphasise that this is a theory wholly unrelated to the practical realities of the modern functioning of a cabinet system of Government
An examination of the cases decided on this principle show that it is very diffi cult to define the scope of essential legis lative function which cannot be delegated
In the ultimate analysis only lip service is paid to the doctrine of legislative policy and guidance and courts are inclined to grab at the weakest of straws as a policy or guideline with which to bale out an impugned piece of legislation rather than invalidate it
7 There have been cases where the delegation of the taxing powers has been upheld by drawing on non existent distinctions such as for example one between the delega tion of a power to fix the rates of the taxes to be charged on different classes of goods and the power to fix rates of taxes simplicit er
8 There is clear inconsistency be tween Shama Rao and the decision in the  case upholding the delegation to the executive of the power to extend not only present but also future laws to a particular territory
Shama Rao does not answer the question posed before it that the validity of such legislation follows on the answer given by Delhi Laws to categories 3 and 4 of Bose J s summary of its deci sion in Rajnarain
9 The Indian Statute book contains any number of legislations on tax matters as well as others conferring a wide range of delegation of powers and a search for guide lines or policy underlying them may well prove an unending quest
649 10 Judicial dicta abound where it has been pointed out that so long as the legisla ture has preserved its capacity in tact and retained control over its delegate so as to be able at any time to repeal the legisla tion and withdraw the authority and discretion it had vested in the delegate it cannot be said to have abdicated its legislative func tions
Chinnappa Reddy J in Kunhambu   did not wish to be drawn into the pros and cons of the above line of reasoning
His Lordship observed that the clear trend of a large number of the decisions of this Court was in favour of the policy and guidelines theory and he was content to adopt the same for the purposes of the case before the Court
This theory which is capable of being formulated in broad terms though difficult of practical application to individual cases as and when they arise can be set out best in the words of Reddy J in the above case 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 equality 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 Funda mental 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
Execu tive 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 articu lation of the views of the people whom they represent
They function best when they con cern 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 650 servants
Parliament and the State Legisla tures 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 unfore seen and unpredictable situations arising from the complexity of modern life and the ingenui ty of modern man
That is the raison d etre for delegated legislation
That is what makes delegated legislation inevitable and indis pensable
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 it self
The power to legislate carries with it the power to delegate
But excessive delega tion may amount to abdication
Delegation unlimited may invite despotism uninhibited
So the theory has been evolved that the legisla ture 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 empow ering 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 lati tude has been held to be permissible in the case of taxing statutes and on the same prin ciple a generous degree of latitude must be permissible in the case of welfare legisla tion particularly those statutes which are designed to further the Directive Principles of State Policy
 The same view was taken by Khanna J in Gwalior Rayon 1974 2 SCR 879 when after reviewing the entire literature on the subject he observed It would appear from the above that the view taken by this Court in a long chain of author ities is that the legislature in conferring power upon another authority to make subordi nate or ancillary legislation must lay down policy principle or standard for the guid ance of the authority concerned
The said view has been affirmed by Benches of this Court consisting of seven Judges
Nothing cogent in our opinion has been brought to our notice as may justify departure from the said view
The binding effect of that 651 view cannot be watered down by the opinion of a writer however eminent he maybe nor by observations in foreign judgments made in the context of the statutes with which they were dealing
 If this be the consistent view of this court on this thorny issue Sri Manoj Swarup says section 87 clearly offends the principle so enunciated particularly when one considers the extremely broad sweep of its language
In empowering the executive to extend laws to Chandigarh to the contents of which Parliament has not applied its mind and further in allowing the executive to exercise a choice among several such existing and future laws Parliament has in fact abdicated its essential legislative functions in rela tion to the Union Territory in favour of the Central Govern ment and given the go by to the elaborate procedures and safeguards enacted in the Constitution in regard to the process of legislation by Parliament or a State Legislature
There would have been considerable force in this contention had it not been for the decision in the case 195 1 SCR 747
As has been pointed out earlier that deci sion clearly upheld the validity of section 7 of Act I section 2 of Act II and the first part of section 2 of Act III which did in relation to Delhi Ajmer Marwara and Part C States exactly that which has been done by section 87 in relation to Chandigarh despite the fact that some of the judges struck a different line from Rv
Burah 1878 51A 178 refused to accept the theory of absolute freedom for Parliament to delegate its powers and enunciated the policy guideline theory which has been taken up in subsequent decisions of this Court
It is said that there are some difficulties in straightaway treating   as conclusive of the issue before us
In the first place that was a decision which reflected the advisory opinion of this Court in a reference made by the President under article 1431 of the Constitution which technically speaking is not a binding precedent
Secondly although five of the seven learned Judges upheld the validity of the provisions re ferred to above it is difficult to clearly formulate the principle which emerges therefrom for as Patanjali Sastri CJ observed in Kewal Raning Rawat vs State  While undoubtedly certain definite conclu sions were reached by the majority of the judges who took part in the decision in regard to the constitutionality of certain specified enactments the reasoning in each case was different and it is difficult to say that any particular principle has been laid down by the majority which can be of assistance in the determination of other cases
652 Thirdly Shama Rao is said to be a binding decision of a Constitution Bench of this Court to the con trary and that has to be followed by us
Since the case  was con cerned with provisions identical in language to the one before us it is only proper and appropriate for us to refer to the reasoning of the judges in the case in regard to the provisions the validity of which was upheld A Kania CJ
held that all the provisions under consid eration were ultra vires to the extent they permitted the extension of Acts other than those of the Central Legisla ture to the areas in question
His view was that the essen tials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct and these essentials are the characteristics of a legisla ture itself
These essentials are preserved when the legis lature specifies the basic conclusions of fact upon the ascertainment of which from relevant data by a designated administrative agency it ordains that its statutory command is to be effective
The legislature having thus made its laws every detail for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer
His Lordship was further of the opinion that if full powers to do everything that the legislature can do are conferred on a subordinate authority although the legislature retains the power to control the action of the subordinate authority by recalling such power or repealing the Acts passed by the subordinate authority there is an abdication or effacement of the legislature conferring such power
Even such partial abdication or effacement is not permissible
The provisions impugned were therefore invalid
The salient point in the opinion of Fazal Ali J are these 1
Even American Courts which are fiercely opposed to uncanalised delegation of legislative power to the execu tive have been compelled by practical considerations to engraft numerous exceptions to the rule and in laying down such exceptions have offered various explanations one of which is this The true distinction   is this
The legislature cannot delegate the power to make a law but it can make a law to delegate a power to determine some fact or state of things 653 upon which the law makes or intends to make its own action depend
To deny this would be to stop the wheels of Government P 814 2
The true import of the rule against delega tion is this This rule in a broad sense involves the principle underlying the maxim delegatus non potest delegate but it is apt to be misunder stood and has been misunderstood
In my judg ment all that it means is that the legisla ture cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted
This rule has been recognised both in America and in England   XXX XXX XXX XXX What constitutes abdication and what class of cases will be covered by that expression will always be a question of fact and it is by no means easy to lay down any comprehensive formula to define it but it should be recog nised that the rule against abdication does not prohibit the Legislature from employing any subordinate agency of its own choice for doing such subsidiary acts as may be necessary to make its legislation effective useful and complete
P  819 3
The conclusions are set but thus 1 The legislature must normally discharge its primary legislative function itself and not through others
2 Once it is established that it has sover eign powers within a certain sphere it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law and that it may utilize any outside agency to any extent it finds neces sary for doing things which it is unable to do itself or finds it inconvenient to do
In other words it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legisla tion
654 3 It cannot abdicate its legislative func tions and therefore while entrusting power to an outside agency it must see that such agency acts as a subordinate authority and does not become a parallel legislature
4 The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed enables the American courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America
There fore there are only two main checks in this country on the power of the legislature to delegate these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self effacement
P 830 1 4
The learned Judge recognised that the impugned provisions at first sight did appear to be very wide they were of the same sweeping nature as section 87 here and observed
Let us overlook for the time being the power to introduce modifications with which I shall deal later and carefully consider the main provision in the three Acts
The situation with which the respective legislatures were faced when these Acts were passed was that there were certain State or States with no local legislature and a whole bundle of laws had to be enacted for them
It is clear that the legislatures concerned before passing the Acts applied their mind and decided firstly that the situation would be met by the adop tion of laws applicable to the other provinces inasmuch as they covered a wide range of subjects approached from a variety of points of view and hence the requirements of the State or States for which the laws had to be framed could not go beyond those for which laws had already been framed by the various legislatures and secondly that the matter should be entrusted to an authority which was expected to be familiar and could easily make itself familiar with the needs and conditions of the State or States for which the laws were to be made
Thus everyone of the Acts so enacted was a complete law because it em bodied a policy defined a standard and 655 directed the authority chosen to act within certain prescribed limits and not to go beyond them
Each Act was a complete expres sion of the will of the legislature to act in a particular way and of its command as to how its will should be carried out
The legisla ture decided that in the circumstances of the case that was the best way to legislate on the subject and it so legislated
It will be a misnomer to describe such legislation as amounting to abdication of powers because from the very nature of the legislation it is manifest that the legislature had the power at any moment of withdrawing or altering any power with which the authority chosen was entrusted and could change or repeal the laws which the authority was required to make applicable to the State or States con cerned
What is even more important is that in each case the agency selected was not empowered to enact laws  but it could only adapt and extend laws enacted by re sponsible and competent legislature
Thus the power given to the Governments in those Acts was more in the nature of ministerial than in the nature of legislative power
The power given was ministerial be cause all that the Government had to do was to study the laws and make selections out of them pp 838 9 He proceeded to point out that
such legislation was neither unwarranted nor unprecedented
5 Following the line of reasoning in Sprigg vs Sigoau the learned Judge held that what the Central Government had been empowered to do under the impugned legislations was not to enact new laws but only to trans plant to the territory concerned laws operating in other parts in the country
As to the absence of a clause such as the one in the enactment considered in Sprigg and the latter part of section 89 that any extensions made shall be subject to repeal alteration or variation by Parliament the learned Judge observed This provision however does not affect the principle
It was made only as a matter of caution and to ensure the superintendence of Parliament for the laws were good laws until they were repealed altered or varied by Parliament
If the Privy Council have correct ly stated the principle that the legislature in enacting subordinate or conditional legis lation does not part with its perfect control and 656 has the power at any moment of withdrawing or altering the power entrusted to another au thority its power of superintendence must be taken to be implicit in all such legislation
Reference may also be made here to somewhat unusual case of Dorr vs United States   where delegation by Congress of the power to legislate for the Phillipine Islands was held valid p 843 6
Indian legislation past and present contains numerous instances of enactments whereunder power was conferred on a local Government to extend to the local territory laws in force in other parts of the country as on the date of such extension
The learned Judge observed It is hard to say that any firm legislative practice had been established before the and other Acts we are concerned with were enacted but one may presume that the legislature had made several experiments before the passing of these Acts and found that they had worked well and achieved the object for which they were intended7 p 846 7
The learned Judge concluded with a few general observations on the subject of dele gated legislation in its popular sense
He observed The legislature has now to make so many laws that it has no time to devote to all the legislative details and sometimes the subject on which it has to legislate is of such a technical nature and all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject
Again when complex schemes of reform are to be the subject of legisla tion it is difficult to bring out a self contained and complete Act straightaway since it is not possible to foresee all the contin gencies and envisage all the local require ments for which provision is to be made
Thus some degree of flexibility becomes necessary so as to permit constant adaptation to unknown future conditions without the necessity of having to amend the law again and again
The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particu lar law make 657 actual experiments when necessary and utilize the results of its investigations and experi ments in the best way possible
There may also arise emergencies and urgent situations re quiring prompt action and the entrustment of large powers to authorities who have to deal with the various situations as they arise
xxx xxx xxx xxx It is obvious that to achieve the objects which were intended to be achieved by these Acts they could not have been flamed in any other way than that in which they were flamed
p 851 2 C Patanjali Sastri J upheld the validity of all the impugned provisions
His Lordship held that it is as compe tent for the Indian Legislature to make a law delegating legislative power both quantitatively and qualitatively as it is for Parliament to do so provided of course it acts within the circumscribed limits
The learned judge however drew a distinction between delegation of legislative author ity and the creation of a new legislative power
He ob served In the former the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency
or instrumental ity of its choice
In the latter there is no delegation of power to subordinate units but a grant of power to an independent and co ordi nate body to make laws operating of their own force
In the first case according to English constitutional law no express provision authorising delegation is required
In the absence of a constitutional inhibition dele gation of legislative power however exten sive could be made so long as the delegating body retains its own legislative power intact
In the second case a positive enabling provi sion in the constitutional document Is re quired
D Mahajan J shared the view of Kania CJ that all the impugned provisions were ultra vires
His Lordship consid ered it a settled maxim of constitutional law that a legis lative body cannot delegate its power
The legislature cannot substitute the judgment wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust
Unless the power to dele gate is expressly given by the Constitution and it has not been a legislature cannot 658 abdicate its functions and delegate essential legislative functions to any other body
There is such abdication when in respect of a subject in the legislative list that body says in effect that it will not legislate but would leave it to another to legislate on it
To turn next to the views of Mukharjea J the learned Judge considered the following aspects 1
The learned Judge did not accept the principle that an unlimited right of delega tion is inherent in the legislative power itself
He observed This is not warranted by the provisions of the Constitution and the legitimacy of delega tion 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 func tions which consist in declaring the legisla tive policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancil lary 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 neces sary in a particular case
These in my opin ion 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
P 997 2
Dealing with the question whether the statutory provisions under consideration envisaged an unwarrantable delegation of legislative powers to the executive govern ment the learned Judges said If the competent legislature has framed a statute and left it to an outside authority to extend the operation of the whole or any part of it by notification to any particular area it would certainly be an instance of conditional legislation as discussed above and no question of delegation would really arise
The position would not be materially 659 different if instead of framing a statute the legislature had specified one or more existing statutes or annexed them by way of a schedule to the Act and had given authority to a subordinate or administrative agency to enforce the operation of any one of them at any time it liked to a particular area
It could still be said in my opinion that in such circumstances the proper legislature had exercised its judgment already and the subor dinate agency was merely to determine the condition upon which the provisions already made could become operative in any particular locality
P 999 1000 3
Adverting to the wide power in the impugned provision to extend future laws as well and that too with the modifications and restrictions he observed The question is whether these facts indicate a surrender of the essential powers of legis lation by the legislature
The point does not seem to be altogether free from difficulty but on careful consideration I am inclined to answer this question in the negative
As I have already said the essential legislative power consists in formulating the legislative policy and enacting it into a binding rule of law
With the merits of the legislative poli cy the court of law has no concern
It is enough if it is defined with sufficient preci sion and definiteness so as to furnish suffi cient guidance to the executive officer who has got to work it out
If there is no vague ness or indefiniteness in the formulation of the policy I do not think that a court of law has got any say in the matter
The policy behind the seems to be that in a small area like Delhi which was constituted a separate province only recently and which had neither any local legislature of its own nor was considered to be of sufficient size or importance to have one in the near future it seemed to the legislature to be quite fit and proper that the laws validly passed and in force in other parts of India should be ap plied to such area subject to such restric tions and modification as might be necessary to make the law suitable to the local condi tions
The legislative body thought fit that the power of making selection from the exist ing statutes as to the suitability of any one of them for being applied to the province of Delhi should rest with the Governor General in Council which was considered to be 660 the most competent authority to judge the necessities and requirements of the Province
That this was the policy is apparent from several other legislative enactments which were passed prior to 19 12 and which would show that with regard to areas which were backward or newly acquired or extremely small in size and in which it was not considered proper to introduce the regular legislative machinery all at once this was the practice adopted by the legislature at that time P 1000 1 4
one more passage from the opinion of the learned Judge may be set out in regard to two aspects of the impugned provision that were touched upon before us
The learned Judge said Of course the delegate cannot be allowed to change the policy declared by the legislature and it cannot be given the power to repeal or abrogate any statute
This leads us to the question as to what is implied in the language of section 7 of the which empowers the Central Government to extend any statute in force in any other part of British India to the Province of Delhi with such modifications and restrictions  as it thinks fit
The word restriction does not present much difficulty
It connotes limitation im posed upon a particular provision so as to restrain its application or limit its scope
It does not by any means involve any change in the principle
It seems to me that in the context and used along with the word re striction the word modification has been employed also in a cognate sense and it does not involve any material or substantial alter ation
The dictionary meaning of the expres sion to modify is to tone down or to soften the rigidity of the thing or to make partial changes without any radical alteration
 It would be quite reasonable to hold that the word modification in section 7 of the means and signifies changes of such character as are necessary to make the statute which is sought to be extend ed suitable to the local conditions of the province
I do not think that the executive government is entitled to change the whole nature or policy underlying any particular Act or take different portions from different statutes and prepare what has been described before us as amalgam of several laws
The Attorney General has very fairly 661 admitted before us that these things would be beyond the scope of the section itself and if such changes are made they would be invalid as contravening the provision of section 7 of the  though that is no reason for holding section 7 itself to be invalid on that ground P 1004 5 5
Mukharjee J however joined with Kania CJ Mahajan J and Bose J in upsetting the validity of the second part of section 2 of Act III
Since this part of the judgment has been relied on by the learned counsel for the petitioners it may also be referred to here
On this aspect the learned Judge observed It will be noticed that the powers conferred by this section upon the Central Government are far in excess of those conferred by the other two legislative provisions at least in accordance with the interpretation which I have attempted to put upon them
As has been stated already it is quite an intelligible policy that so long as a proper legislative machinery is not set up in a particular area
the Parliament might empower an executive authority to introduce laws validly passed by a competent legislature and actually in force in other parts of the country to such area with such modifications and restrictions as the authority thinks proper the modifications being limited to local adjustments or changes of a minor character
But this presupposes that there is no existing law on that particu lar subject actually in force in that territo ry
If any such law exists and power is given to repeal or abrogate such laws either in whole in part and substitute in place of the same other laws which are in force in other areas it would certainly amount to an unwar rantable delegation of legislative powers
To repeal or abrogate an existing law is the exercise of an essential legislative power and the policy behind such acts must be the policy of the legislature itself
If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modification as it thinks proper that would be to invest the executive with the determination of the entire legisla tive policy and not merely of carrying out a policy which the legislature has already laid down
Thus the 662 power of extension which is contemplated by section 2 of Part C States Laws Act in cludes the power of introducing laws which may be in actual conflict with the laws validly established and already in operation in that territory
This shows how the practice which was adopted during the early British period as an expedient and possibly harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into a full fledged administrative and political unit is being resorted to in later times for no other purpose than that of vest ing almost unrestricted legislative powers with regard to certain areas in the executive government
The executive government is given the authority to alter repeal or amend any laws in existence at that area under the guise of bringing in laws there which are valid in other parts of India
This in my opinion is an unwarrantable delegation of legislative duties and cannot be permitted
The last portion of section 2 of Part C States Laws Act is therefore ultra vires the power of the Parliament as being a delegation of essen tial legislative powers in favour of a body not competent to exercise it and to that extent the legislation must be held to be void
This portion is however severable and so the entire section need not be declared invalid P 1008 1010 F Das J who upheld the validity of section 7 of Act 1 section 2 of Act II and both parts of section 2 of Act III rested his conclusions on the following reasoning i After expressing the opinion that the principle of non delegability of legislative powers rounded either on the doctrine of separation of powers or on the theory of agency had no application to the British Parliament or the legisla tures constituted by an Act of the British Parliament and that in the ever present complexity of conditions with which Governments have to deal a power of delegation is necessary and ancillary to the exercise of legislative power and is a component part of it the learned Judge observed The only rational limitation upon the exer cise of this absolute power of delegation by the Indian Legislature as by any Dominion Legislature is what has been laid down in the several Privy Council and other cases from which relevant passages have been quoted above
It is that the legisla 663 ture must not efface itself or abdicate all its powers and give up its control over the subordinate authority to whom it delegates its law making powers
It must not without pre serving its own capacity intact create and arm with its own capacity a new legislative power not created or authorised by the instru ment by which the legislature itself was constituted
In short it must not destroy its own legislative power
There is an antithesis between the abdication of legislative power and the exercise of the power of legislation
The former excludes or destroys the latter
There is no such antithesis between the dele gation of legislative power and the exercise of the legislative power for however wide the delegation may be there is nothing to prevent the legislature if it is so minded from at any time withdrawing the matter into its own hands and exercising its law making powers
The delegation of legislative power involves an exercise of the legislative power
It does not exclude or destroy the legislative power itself for the legislative power is not diminished by the exercise of it
A power to make law with respect to a subject must as we have seen include within its content the power to make a law delegating that power
Having regard to entry No 97 in the Union List and article 248 of our Constitution the residuary power of our Parliament is wide enough to include delegation of legislative power of a subject matter with respect to which Parliament may make a law
Apart from that considertion if a statute laying down a policy and delegating power to a subordinate authority to make rules and regulations to carry out that policy is permissible then 1 do not see why an Act merely delegating legisla tive power to another person or body should be unconstitutional if the legislature does not efface itself or abandon its control over the subordinate authority
If the legislature can make a law laying down a bare principle or policy and commanding people to obey the rules and regulations made by a subordinate author ity why cannot the legislature without effacing itself but keeping its own capacity intact leave the entire matter to a subordi nate authority and command people to obey the commands of that subordinate authority The substance of the thing is the command which is binding and the efficacy of the rules of conduct made by the subordinate authority is due to no other authority than the command of the legislature itself
Therefore short of self 664 effacement the legislative power may be as freely and widely delegated as the Dominion Legislature like the British Parliament may think fit and choose
XXX XXX XXX In my opinion the true tests of the validity of a law enacted by the Indian Legislature conferring legislative power on a subordinate authority are i Is the law within the legislative competency fixed by the instrument creating the legislature and ii Has the legislature effaced itself or abdicated or destroyed its own legislative power If the answerto the first is in the affirmative and that to the second in the negative it is not for any Court of justice to enquire further or to question the wisdom or the policy of the law
Dealing with the necessity for limiting or restricting the powers of delegation the learned Judge observed It is said that it will be dangerous if the legislature is permitted to delegate all its legislative functions without formally abdi cating its control or effacing itself for then the legislature will shirk its responsi bility and go to sleep and peoples  life liberty or property may be made to depend on the whims of the meanest policy officer in whom by successive delegation the legisla tive power may come to be vested
I do not feel perturbed
I do not share the feeling of oppression which some people may possibly entertain as to the danger that may ensue if the legislature goes to sleep after delegating its legislative functions for I feel sure that the legislators so falling into slumber will have a rude awakening when they will find themselves thrown out of the legislative chamber at the next general election
I have no doubt in my mind that the legislature after delegating its powers will always keep a watchful eye on the activities of the persons to whom it delegates its powers of legislation and that as soon as it finds that the powers are being misused to the detriment of the public the legislature will either nullify the acts done under such delegation or appoint some more competent authority or withdraw the matter into its own hands
There is and will always remain some risk of abuse whenever wide legislative 665 powers are committed in general terms to a subordinate body but the remedy lies in the corrective power of the legislature itself and on ultimate analysis in the vigilance of public opinion and not in arbitrary judicial fiat against the free exercise of law making power by the legislature within the ambit fixed by the instrument of its constitution
It is not for the court to substitute its own notions of expediency of the will of the legislature
This 1 apprehend is the correct position in law
In my judgment if our law is not to be completely divorced from logic and is not to give way and surrender itself to sterile dogma the widest power of delegation of legislative power must perforce be conceded to our Parliament
A denial of this necessary power will stop the wheels of government and we shall be acting as a clog upon the legis lative and executive departments
The learned Judge also referred to the Indian legislative practice and relied on several instances of enactments such as the ones in question before the Court and ob served During the time of the expansion of the British possessions in India small bits of territories in outlying parts of Indian were being constantly annexed by the British but on account of the smallness of such territories or the undesirability of their immediate merger with the established Provinces it was not found to be practically possible to pro vide legislative Councils for these enclaves
Nor was it possible for the Governor General in Council to enact laws for the day to day administration of these bits of territories or for all their needs
The practice therefore grew up for the Governor General in Council by a simple legislation to confer power on the Lieutenant Governor to extend to such territories such of the laws as were or might be in force in other parts of the territories under the Lieutenant Governor which were considered suitable for these territories
Such practice was certainly convenient and ever since Burah s case does not appear to have been seriously questioned
I do not say that the argument has no merit but in the view I have taken and expressed above I do not find it necessary on the present occasion to base my opinion on this argument
666 G Bose J observed that he was not enamoured of this kind of legislation and did not like this shirking of responsibility for after all the main function of the legislature is to legislate andnot to leave that to others
 He however leaned in favour of upholding the statutes in question before the court for the following reasons
Two of the Acts under consideration before the court were Acts of British Parliament and had to be looked at through British eyes
In the face of Queen vs Burah 1878 5 IA 173 there was no doubt that this legislation would have been upheld and it was not necessary to enquire further because no single decision of the Judicial Committee had thrown any doubt on the soundness of Burah s case
Act III however stood on a different footing as it was an Act of the Indian Parliament of 1950
One had to try to discover from the Constitution itself what concept of legislative power Parliament had in mind while framing the Constitution
The learned Judge observed Now in endeavoring to discover from the Constitution what the Constituent Assembly thought of this grave problem
I consider it proper to take the following matters into con sideration
First it has been acknowledged in all free countries that it is impossible to carry on the government of a modern State with its infinite complexities and ramifications without a large devolution of power and dele gation of authority
It is needless to cite authority
The proposition is self evident
Next the practical application of that prin ciple has been evident through the years both in India and in other parts of the British Empire and in England itself
In the third place even in America Judges have had to veer away from the rigidity of their earlier doctrine and devise ways and means for soften ing its rigour and have not always been able under a barrage of words to disguise the fact that they are in truth and in fact effecting a departure because compelled to do by the force of circumstances
After pointing out the similarities between the Constitution and the Government of India Act of 1935 the learned Judge conclud ed I prefer therefore to hold that that which The Queen vs Burah authorised whatever you may choose to call it was not abrogated except in special cases
667 I SO hold for another reason as well namely that to decide otherwise would make the Gov ernment of India an exceedingly difficult matter and would put back the hands of the clock
I prefer therefore to hold and that has the logic of history behind it that the concept of legislative power which had hither to been accepted in India continued to hold good but that this limitation was placed upon it by the Constitution namely that wherever the Constitution empowers Parliament to do a particular thing as opposed to legislating generally on a particular topic there can be no delegation
Parliament must itself act
Referring to the authorities and text books cited before the Court the learned Judge observed An anxious scrutiny of all the many authori ties and books which were referred to in the arguments and of the decisions which I have analysed here leads me to the conclusion that it is difficult to deduce any logical princi ple from them
In almost every case the deci sion has been ad hoc and in order to meet the exigencies of the case then before them judges have placed their own meaning on words and phrases which might otherwise have em bodied a principle of general application
I have therefore endeavoured as far as I possi bly could to avoid the use of these disputa ble terms and have preferred to accept the legacy of the past and deal with this question in a practical way
My conclusion is that the Indian Parliament can legislate along the lines of The Queen vs Burah that is to say it can leave to another person or body the introduction or application of laws which are or may be in existence at that time in any part of India which is subject to the legisla tive control of Parliament whether those laws were enacted by Parliament or by a State Legislature set up by the Constitution
That has been the practice in the past
It has weighty reasons of a practical nature to support it and it does not seem to have been abrogated by the Constitution
The learned Judge however held that second part of section 2 of Act 3 could not be held to be valid for the following reasons But I also consider that delegation of this kind cannot proceed beyond that and that it cannot extend to the repe 668 aling or altering in essential particulars of laws which are already in force in the area in question
That is a matter which Parliament alone can handle
I See no reason for extending the scope of legislative delegation beyond the confines which have been hallowed for so long
Had it not been for the fact that this sort of prac tice was blessed by the Privy Council as far back as 1878 and has been endorsed in a series of decisions ever since and had it not been for the practical necessities of the case I would have held all three Acts ultra vires
But so far as the latter portion of the third Act is concerned no case was cited in which the right to appeal the existing laws of the land and substitute others for them has been upheld
That was tried in a South African case Sir John Gorden Sprigg vs Sigcau  but the Privy Council held it could not be done not indeed on any ground which is material here but that is the only case I know where the attempt was made and the right litigated
It is one thing to fill a void or partial vacuum
Quite another to throw out existing laws enacted by a competent authori ty
It is bad enough to my mind to hold that the first is not a delegation of legislative power
But as that has been held by an author ity which it is impossible now to question so far as the past is concerned I bow to its wisdom
But as to the future I feel that a body which has been entrusted with the powers of legislation should legislate and not leave the decision of important matters of principle to other minds
I am therefore of opinion that the power upheld by the Queen vs Burah does not extend as far as the latter portion of section 2 of the Part C States Laws Act of 1950 endeavours to carry it
 A perusal of the above judgments shows that the validity of the provisions in question were upheld on different lines of reasoning
Nevertheless all the learned Judges seem to have agreed and indeed as pointed out in later decisions it is inevitable in modern conditions that while Parlia ment should have ample and extensive powers of legislation these should include a power to entrust some of those func tions and powers to another body or authority
They also seem to have agreed that there should be a limitation placed on the extent of such entrustment
It is only on the ques tion as to what this limitation should be that there was lack of consensus among the 669 judges
All of them agreed that it could not be so extensive as to amount to abdication or effacement
Some thought that there is no abdication or effacement unless it is total ie unless Parliament surrenders its powers in favour of a parallel legislature or loses control over the local authority to such an extent as to be unable to revoke the powers given to or to exercise effective supervision over the body entrusted therewith
But others were of opinion that such abdication or effacement could not even be partial and it would be bad if full powers to do everything that the legislature can do are conferred on a subordinate authority although the legislature may retain the power to control the action of such authority by recalling such power or repealing the Acts passed by the subordinate authority
A different way in which the second of the above views has been enunciated and it is this view which has dominated since is by saying that the legislatures cannot wash their hands off their essential legislative function
Essential legislative function consists in laying down the legislative policy with sufficient clearness and in enunciating the standards which are to be enacted into a rule of law
This cannot be delegated
What can be delegated is only the task of subordinate legislation which is by its very nature ancillary to the statute which delegates the power to make it and which must be within the policy and framework of the guidance provided by the legislature
It is suggested for the petitioners that since the reasonings of the learned Judges are so different we cannot derive any assistance from the case and should therefore ignore it
We are unable to accept this suggestion
We think with respect that Bose J was right when he pointed out in Rajnarain Singh s case and his summary in the case of the conclusions arrived at in the case has consistently been referred to with approval in later decisions of this Court as an authoritative exposition that Because of the elaborate care with which every aspect of the problem was examined in that case the decision has tended to become diffuse but if one concentrates on the mat ters actually decided and forgets for a moment the reasons given a plain pattern emerges leaving only a narrow margin of doubt for future dispute
 If we apply this formula whatever reasoning one adopts the answer to the question posed before us has to be in favour of upholding the constitutional validity of section 87
One may doubt the wisdom of attempting to trace a common ratio decidendi from such divergent views but it 670 seems equally illogical to altogether ignore a clear conclu sion arrived at by the majority of judges only because they arrived at that conclusion by different processes of reason ing
One would rather have thought that a conclusion stands more fortified when it can be supported not on one but on several lines of reasoning
At least for an identical prob lem the final answer we think should be the same
This should particularly be so when we remind ourselves that the case arose because soon after India became a Republic the Government envisaging the necessity of having recourse to legislation of this type in the context of the changing topography of India took the precaution of seeking the advice of the Supreme Court for its future guidance and that they have acted upon the answers propounded by the Supreme Court in enacting a provision of this type
In this situation we find ourselves unable to accept the contention that after a lapse of thirty eight years we should declare that the case decided nothing or as counsel euphimistically put it that it should be confined to its own facts
It is contended that the above line of approach is one of expediency rather than logic and that unless one can extract a principle of general application from the case it will not be helpful as a precedent
Even if this is taken to be the proper approach an answer to the contention is furnished by Shama Rao  on which considerable reliance was also placed on behalf of the petitioners
The facts in that case were that the legisla tive assembly for the Union Territory of Pondicherry passed a Sales Tax Act 10 of 1965 in June 1965
Under s 12 of the Act it was to come into force on such date as the Pondicherry Government may by notification appoint
section 21 of the Act provided that the Madras General Sales Tax Act 1959 as in force in the State of Madras immediately before the commencement of the Pondicherry Act shall be extended to Pondicherry subject to certain modifications
The Pondi cherry Government issued a notification on March 1 1966 appointed April 1 1966 as the date of the commencement of the Pondicherry Act
Prior to the issue of the notification however the Madras Legislature had amended the Madras Act and consequently it was the Madras Act as amended upto April 1 1966 which was brought into force in Pondicherry
When the Act thus came into force the petitioner was served with a notice to register himself as a dealer and thereupon he filed a writ petition challenging the validity of the Act
It was contended for the petitioner that the Act was void and was a still born legislation by reason of the Pondicher ry Legislature having abdicated its legislative functions in favour of the Madras State Legislature
It was argued that such abdica 671 tion resulted from the wholesale adoption of the Madras Act as in force in the State of Madras immediately before the commencement of the Pondicherry Act as section 21 read with section 12 meant that the legislature adopted not only the Madras Act as it was when it enacted the Pondicherry Act but also such amendment or amendments in the Madras Act which might be passed by the Madras State Legislature upto the time of commencement of the Act ie upto April 1 1966
On the other hand counsel for the respondent relied on the deci sion of a majority of judges 52 in the case that authorisation to select and apply future Provin cial Laws was not invalid as had been clearly brought out in the summary of the Case attempted by Bose J in Rajnarain Singh s case  After a brief reference to the history of the doctrine of abdication contended for by the petitioner and a discussion of the Case Shelat J with whom Subba Rao CJ
and Mitter J agreed accepted the contention of the petitioner
He observed The question then is whether in extending the Madras Act in the manner and to the extent it did under sec
21 of the Principal Act the Pondicherry legislature abdicated its legisla tive power in favour of the Madras legisla ture
It is manifest that the Assembly refused to perform its legislative function entrusted under the Act constituting it
It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction adopts such an Act and enacts to extend it to the territory under its jurisdiction
In doing so it may perhaps be said that it has laid down a policy to extend such an Act and di rects the executive to apply and implement such an Act
But when it not only adopts such an Act but also provides that the Act applica ble to its territory shall be the Act amended in future by the other legislature there is nothing for it to predicate what the amended Act would be
Such a case would be clearly one of non application of mind and one of refusal to discharge the function entrusted to it by the instrument constituting it
It is diffi cult to see how such a case is not one of abdication or effacement in favour of another legislature at least in regard to that partic ular matter
But Mr Setalvad contended that the validity of such legislation has been accepted in Delhi Laws Act s case and 672 particularly in the matter of heading No 4 as summarised by Bose J in Raj Narain Singh s case
In respect of that heading the majority conclusion no doubt was that authorisation in favour of the executive to adopt laws passed by another legislature or legislatures includ ing future laws would not be invalid
So far as that conclusion goes Mr Setalvad is right
But as already stated in arriving at that conclusion each learned Judge adopted a dif ferent reasoning
Whereas Patanjali Sastri and Das JJ accepted the contention that the plenary legislative power includes power of delegation and held that since such a power means that the legislature can make laws in the manner it liked if it delegates that power short of an abdication there can be no objec tion
On the other hand Fazal Ali J upheld the laws on the ground that they contained a complete and precise policy and the legisla tion being thus conditional the question of excessive delegation did not arise
Mukherjea J held that abdication need not be total but can be partial and even in respect of a par ticular matter and if so the impugned legisla tion would be bad
Bose J expressed in frank language his displeasure at such legislation but accepted its validity on the ground of practice recognised over since Burah s case and thought that that practice was accepted by the Constitution makers and incorporated in the concept of legislative function
There was thus no unanimity as regards the principles upon which those laws were upheld
All of them however appear to agree on one principle viz that where there is abdica tion of effacement the legislature concerned in truth and in fact acts contrary to the Instrument which constituted it and the stat ute in question would be void and still born Underlining ours Bhargava J with whom Shah J agreed did not consider it necessary to enter into this controversy as according to them and on this they dissented from the majority even if it be held that the Pondicherry Act was bad for excessive delegation of powers when it was enacted and published a subsequent amending Act of the Pondicherry Legislature had remedied the situation
Sri Sibal contended that the Pondicherry Assembly on a true 673 construction of section 18 of the was not a full fledged legislature but only a delegate of Parliament and therefore a delegation by it to the State Government amounted in effect to a sub delega tion which cannot be justified at all and that therefore Shama Rao is distinguishable
We do not think this conten tion is tenable in view of the observations made in Burha s case 1878 51A 178 and in the case supra while repelling a similar contention about the status of a Dominion Legislature vis a vis the Parliament of the United Kingdom and in the case
Also that was not the basis on which Shama Rao was either argued before or decided by this Court
We may therefore turn to Sharma Rao s interpretation of the case and apply it here
We think we may accept the passage in Shelat J s judgment which we have underlined earlier as a correct enunciation by this Court of the Principle emerging from the case if we do so the only question that will remain to be considered will be whether section 87 is a case of abdication or effacement and the answer to that question has been furnished in the negative by the case itself in respect of identically worded provisions
Thus Shama Rao in effect helps the respondents to sustain the validity of section 87 though it is true that on a differ ent if somewhat analogous provision in the Pondicherry Act their Lordships reached the contrary conclusion and held there was an abdication or effacement
 But these niceties apart we think that section 87 is quite valid even on the policy and guideline theory if one has proper regard to the context of the Act and the object and purpose sought to be achieved by section 87 of the Act
The judicial decisions referred to above make it clear that it is not necessary that the legislature should dot all the t s and cross all the t s of its policy
It is sufficient if it gives the broadest indication of a general policy of the legislature
If we bear this in mind and have regard to the history of this type of legislation there will be no difficulty at all
Section 87 like the provisions of Acts I II and III is a provision necessitated by changes re sulting in territories coming under the legislative juris diction of the Centre
These are territories situated in the midst of contiguous territories which have a proper legisla ture
They are small territories falling under the legisla ture jurisdiction of Parliament which has hardly sufficient time to look after the details of all their legislative needs and requirements
To require or expect Parliament to legislate for them will entail a disproportionate pressure on its legislative schedule
It will also mean the unneces sary utilisation of the time of a large number of members of Parliament for except the few less than ten members returned to Parliament from 674 the Union Territory none else is likely to be interested in such legislation
In such a situation the most convenient course of legislating for them is the adaptation by exten sion of laws in force in other areas of the country
As Fazal Ali J pointed out in the case it is not a power to make laws that is delegated but only a power to transplant laws already in force after having undergone scrutiny by Parliament or one of the State Legislatures and that too without any material change
There is no dispute before us and it has been unanimously held in all the decisions that the power to make modifications and restric tions in a clause of this type is a very limited power which permits only changes that the different context re quires and that changes in substance
There is certainly no power of modification by way of repeal or amendment as is available under section 89
Sri Swarup contends that the vice in the provision lies a in the choice it has left to the Central Government of one among several laws that may be in force in various areas and b in the power it has given to extend future laws as well
A power to exercise such wide power he says cannot be described as a ministerial power  it is essential legis lative power according to him
It is true that if one were to read the section in the abstract and in its broadest connotation it conjures up the possibilities of the execu tive picking up at its fancy at any time any law that may exist in any part of India for extension to Chandigarh without any particular rhyme or reason
The force of Sri Swarup s objection on this aspect has been picturesquely brought out by Mahajan J in a passage in the case The choice to select any enactment in force in any province at the date of such notifica tion clearly shows that the legislature de clared no principles or policies as regards the law to be made on any subject
It may be pointed out that under the Act of 1935 differ ent provinces had the exclusive power of laying down their policies in respect of subjects within their own legislative field
What policy was to be adopted for Delhi whether that adopted in the province of Punjab or of Bombay was left to the Central Govern ment
Illustratively the mischief of such law making may be pointed out with reference to what happened in pursuance of this section in Ajmer Marwara
The Bombay Agricultural Debtors  Relief Act 1947 has been extended under cover of this section to Ajmer Marwara and under the power of modification by amend ing the definition of the word debtor  the whole policy of the Bombay Act has been 675 altered
Under the Bombay Act a person is a debtor who is indebted and whose annual income from sources other than agricultural and manly labour does not exceed 33 per cent of his total annual income or does not exceed Rs500 whichever is greater
In the modified statute debtor means an agriculturist who owes a debt and agriculturist means a person who earns his livelihood by agriculture and whose income from such source exceeds 66 per cent of his total income
The outside limit of Rs500 is removed
The exercise of this power amounts to making a new law by a body which was not in the contemplation of the Constitution and was not authorized to enact any laws
Shortly stated the question is could the Indian legislature under the Act of 1935 enact that the executive could extend to Delhi laws that may be made hereinafter by a legislature in Timbuctoo or Soviet Russia with modifications
The answer would be in the negative because the policy of those laws could never be deter mined by the law making body entrusted with making laws for Delhi
The Provincial legisla tures in India under the Constitution Act of 1935 qua Delhi constitutionally stood on no better footing than the legislatures of Tim buctoo and Soviet Russia though geographically and politically they were in a different situation
 But with respect we think we should not look at the provision in the present context from that angle
We should here have regard to the object of the provision and the purpose it was intended to achieve and in the historical perspective we have set out there is no vice in the power conferred
So far as the first aspect referred by Sri Swarup is concerned the provision only confers a power on the execu tive to determine having regard to the local conditions prevalent in the Union Territory which one of several laws all approved by one or the other of the legislatures in the country will be the most suited to Chandigarh
Thus viewed it would fail under one of the permissible categories of delegation referred to at p 814 in the case and extracted by us earlier and if so it is not really an unguided or arbitrary power
There could have been no objec tion to the legislation if it had provided that the laws of one of the contiguous States say Punjab should be extended to Chandigarh
But such a provision would have been totally inadequate to meet the situation for two reasons
There may be more than 676 one law in force on a subject in the contiguous States say one in Punjab one in Pepsu and one in Himachal Pradesh etc and Parliament was anxious that Chandigarh should have the benefit of that one of them which would most adequately meet the needs of the situation in that territory
Or again there may be no existing law on a particular subject in any of the contiguous areas which is why the power had to include the power of extending the laws of any State in India
While in a very strict sense this may involve a choice it is in fact and in the general run of cases only a decision on suitability for adaptation rather than choice of a policy
It is a delegation not of policy but of matters of detail for a meticulous appraisal of which Par liament has no time
Even if we assume that this involves a choice of policy the restriction of such policy to one that is approved by Parliament or a State Legislature constitutes a sufficient declaration of guideline within the meaning of the policy guideline theory
The second aspect referred to by Sri Swarup again is in the context not a sign  of abdication but is only a necessary enabling power
Once it is held that the delega tion of a power to extend a present existing law is justi fied a power to extend future laws is a necessary corol lary
Here again its validity may be tested by considering what the position would have been if the section had provid ed only for the extension of the laws in a contiguous terri tory say Punjab
As mentioned earlier a power to extend existing statutes in Punjab could clearly have been delegat ed
If Parliament formulated such a policy as it had no time to apply its mind to the existing law initially to be adapt ed it could hardly find time to consider the amendments from time to time engrafted on it in the state of its ori gin
Hence once a policy of extension of Punjab laws is clear and permissible it would seem only natural as a neces sary corollary that the executive should be permitted to extend future amendments to those laws as well
The power to extend any future law has to be considered in the above context and not only could be but also has to be conferred for the same reasons as justify the conferment of a power to extend a present contiguous law
Mukherjea J in the case has touched upon this issue
As pointed out by him the question of validity of the delegation of a power to extend any future law is not free from difficulty
If the provision is considered in the abstract and contrued on the basis of its fullest possible ambit it may be difficult to sustain it
But if it is construed and judged in the historical context of the legislation the needs of the situation and a reasonably practical appraisal of the extent of its intended application there can be no doubt that it contains a sufficient indication of broad policy to sustain the validity of the 677 extent of delegation involved in section 87
We may in this context repeat again that courts in the decided cases do not envisage a meticulous enunciation of a policy in all its details
They are satisfied even if they can discern even faint glimmerings of one from the object and scheme of the legislation
For the reasons discussed above we reject the conten tions of the petitioners challenging the constitutional validity of section 87
We now turn to the second contention of the petitioners based on the assumption of section 87 being valid
The point made is that section 87 on its proper construction permits the extension of the laws of another State to Chandigarh only so long as there is a vacuum of laws on any particular subject within the Union Territory but that once Parlia ment itself steps in and makes laws for the territory it has assumed legislative responsibilities in respect of that subject and a transplantation of laws from elsewhere by extension is neither necessary nor valid Sri Gujral submits that the raison d etre of section 87 is that as Parliament may not have enough time to attend to the legislative needs of the new territory brought into its fold it is necessary to provide a machinery by which some laws could enforced in the territory
But here as early as 1974 Parliament applied its mind and legislated in respect of landlord tenant matters for the Union Territory and having done this it is for Parliament and Parliament alone to legislate on the subject thereafter
Indeed President issued an ordinance in 1976 and Parliament also amended the law in 1982 in some other respects indicating that Parliament was in full ses sion of the matter
This is one facet of the objection
The other facet is that by purporting to extend by an execu tive notification the provisions of the 1985 Act to Chandi garh what the Central Government has really done is to modify or amend an existing Parliamentary law the 1974 Act operating in the State already
Conceding for purposes of argument that had the 1949 Act been extended to Chandigarh in 1974 by a notification under section 87 it might have been open to the Government by another notification under section 87 to extend the 1985 Act also to the Union Territory counsel contends that it was impermissible to allow the Central Government to issue a notification under section 87 which will have the effect of amending or modifying a law of Parliament already in force in the territory
A notification could amend a notification but not a statute he says
In support of this part of the argument counsel strongly relies on the decision of a majority of Judges in the case that the second part of section 2 of Act 111 considered by them was ultra vires
He submits that if even a specific provision in a law could 678 not validly permit a notification of extension to amend or repeal existing laws of the territory in question a notifi cation under section 87 which advisedly omits any reference to such an enabling power enacted in Act III and declared ultra vires by this court could hardly be on a stronger footing
On this construction of section 87 counsel contends the notification dated 151286 has exceeded the purview of section 87 and is therefore ultra vires
Turning therefore to the judgments in the case on which counsel strongly relies in support of his contentions we may observe at the outset that the judgments of Kania CJ
and Patanjali Sastri J are not helpful as according to Kania C J the power of delegation was alto gether bad except in so far as it permitted an extension of laws made by the Central Legislature and according to Sastri J extensive delegation of powers was valid
Fazal Ali J in upholding its validity observed thus in regard to the second part of section 2 of Act III I will now deal with section 2 of Part C States Laws Act 1950 in so far as it gives power to the Central Government to make a provision in the enactment extended under the Act for the repeal or amendment of any corre sponding law which is for the time being applicable to the Part C State concerned
No doubt this power is a far reaching and unusual one but on a careful analysis it will be found to be only a concomitant of the power of transplantation and modification
If a new law is to be made applicable it may have to replace some existing law which may have become out of date or ceased to serve any useful purpose and the agency which is apply the new law must be in a position to say that the old law would cease to apply
The nearest parallel that I can find to this provision is to be found in the Church of England Assembly Powers Act 19 19
By that Act the Church Assembly is empowered to propose legislation touching matters concerning the Church of England and the legislation proposed may extend to the repeal or amendment of Acts of Parliament including the Church Assembly Act itself
It should however be noticed that it is not until Parliament itself gives it legis lative force on an affirmative address of each House that the measure is converted into legislation
There is thus no real analogy between that Act and the Act before us
Howev er the provision has to be upheld because though it goes to the farthest limits it is difficult to hold that it was beyond the 679 powers of a legislature which is supreme in its own field and all we can say is what Lord Hewart said in Kind vs Minister of Health  namely that the particular Act may be regarded as indicating the high water mark of legislative provisions of this character and that unless the legislature acts with restraint a stage may be reached when legislation may amount to abdication of legislative powers
 Mahajan J had this to say For reasons given for answering questions 1 and 2 that the enactments mentioned therein are ultra vires the Constitution in the par ticulars stated this question is also an swered similarly
It might however be ob served that in this case express power to repeal or amend laws already applicable in Part C States has been conferred on the Cen tral Government
Power to repeal or amend laws is a power which can only be exercised by an authority that has the power to enact laws
It is a power co ordinate and co extensive with the power of the legislature itself
In be stowing on the Central Government and clothing it with the same capacity as is possessed by the legislature itself the Parliament has acted unconstitutionally
 The observations of Mukherjea J are very relevant from the point of counsel for the petitioners
His Lordship said It will be noticed that the powers conferred by this section upon the Central Government are far in excess of those conferred by the other two legislative provisions at least in accordance with the interpretation which I have attempted to put upon them
As has been stated already it is quite an intelligible policy that so long as a proper legislative machinery is not set up in a particular area the Parliament might empower an executive authority to introduce laws validly passed by a competent legislature and actually in force in other parts of the country to such area with such modifications and restrictions as the authority thinks proper the modifications being limited to local adjustments or changes of a minor character
But this presupposes that there is no existing law on that particu lar subject actually in force in that territo ry
If any such law 680 exists and power is given to repeal or abro gate such laws either in whole or in part and substitute in place of the same other laws which are in force in other areas it would certainly amount to an unwarrantable delega tion of legislative powers
To repeal or abrogate an existing laws is the exercise of an essential legislative power and the policy behind such acts must be the policy of the legislature itself
If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modification as it thinks proper that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down
Thus the power of extension which is contemplated by section 2 of Part C States Laws Act in cludes the power of introducing laws which may be in actual conflict with the laws validly established and already in operation in that territory
This shows how the practice which was adopted during the early British period as an expedient and possibly harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into a full fledged administrative and political unit is being resorted to in later times for no other purpose that that of vest ing almost unrestricted legislative powers with regard to certain areas in the executive government
The executive government is given the authority to alter repeal or amend any laws in existence in that areas under the guise of bringing in laws there which are valid in other parts of India
This in my opinion is an unwarrantable delegation of legislative duties and cannot be permitted
The last portion of section 2 of Part C States Laws Act is therefore ultra vires the powers of the Parliament as being a delegation of essential legislative powers in favour of a body not competent to exercise it and to that extent the legislation must be held to be void
This portion is however severable and so the entire section need not be declared invalid Emphasis added Bose J again made certain observations which are strongly relied upon by counsel
His Lordship observed I see no reason for extending the scope of legislative delegation 681 beyond the confines which have been hallowed for so long
Had it not been for the fact that this sort of practice was blessed by the Privy Council as far back as 1878 and has been endorsed in a series of decisions ever since and had it not been for the practical necessi ties of the case I would have held all three Acts ultra vires
But so far as the latter portion of the third Act is concerned no case was cited in which the right to repeal the existing laws of the land and substitute others for them has been upheld
That was tried in a South African case Sir John Gorden Sprigg
vs Sigcau  but the Privy Council held it could not be done not indeed on any ground which is material here but that is the only case I know where the attempt was made and the right litigated
It is one think to fill a void or partial vacuum
Quite another to throw out existing laws enacted by a competent authority
It is bad enough to my mind to hold that the first is not a delegation of legislative power
But as that has been held by an authority which it is impossible now to question so far as the past is concerned I bow to its wisdom
But as to the future I feel that a body which has been entrusted with the powers of legislation should legislate and not leave the decision of important matters of principle to other minds
I am therefore of opinion that the power upheld by the The Queen vs Burah does not extend as far as the latter portion of section 2 of the Part C States Laws Act of 1950 endeavours to carry it
 Emphasis added In support of his vacuum theory counsel also refers to an instance of legislative practice referred to in Ka poor s case  Counsel points out there was a central rent law applicable t9 all cantonments in India being Act 10 of 1952
In 1957 Parliament decided that the rent law in force in the rest of a State should be allowed to be extended to the cantonment areas in State as well by issue of Government notification and enacted Act 46 of 1957 for the purpose
However no such extension under section 3 of the Act 46 of 1957 was notified for the State of UP until Parliament by passing Act 68 of 1971 statutorily clarified that On and from the date on which the United Provinces Temporary Control of Rent  Evic tion Act 1947 is extended by notification under section 3 of the Cantonments Extention of Rent Control Laws Act 1957 to the Canton ments in Uttar Pradesh the Uttar Pradesh Cantonments Control of Rent  Eviction Act 1952 Act 10 of 1952 shall stand repealed
 In other words though extension of local laws to canton ments by notification was allowed Parliament provided for the simultaneous creation of a vacuum in the cantonment area by repeal of the 1952 Act which could be occupied by the extended law
Counsel emphasises this aspect to show that an extension by notification can be allowed to fill a void but cannot be allowed to knock against a superior Parliamentary enactment already in existence
682 There is certainly a good deal of force in these argu ments but we think that they proceed on an incorrect view of the effect of the notification impugned in the present case
We might have been inclined to accept the submissions of the learned counsel had the effect of the notification been to extend a law which is in actual conflict with any parlia mentary enactment or which has the effect of throwing out any existing law in the Union Territory
To borrow an ex pression used in an analogous context we would have consid ered the validity of the extension doubtful had the extended provisions been repugnant to an Act of Parliament in force in the Union Territory
So long as that is not the effect or result we think there is no reason to construe the scope of section 87 in the restricted manner suggested by counsel
It is no doubt true that section 87 permits an extension because there is no law in the Union Territory in relation to a particular subject and Parliament has not the requisite time to attend to the matter because of its preoccupations
But this purpose does not require for its validity that there should be no existing law of Parliament at all on a subject
Again the concept of subject for the purposes of this argument is also an elastic one the precise scope of which cannot be defined
The concept of vacuum is as much relevant to a case where there is absence of a particular provision in an existing law as to a case where there is no existing law at all in the Union Territory on a subject
For in stance if Parliament had not enacted the 1974 Act but had only enacted an extension of the Transfer of Property Act to Chandigarh could it have been said that a subsequent noti fication cannot extend the provisions of the 1949 Act to Chandigarh because the subject of leases is governed by the Transfer of Property Act which has been already extended and there is therefore no vacuum left which could be filled in by such extension Again suppose initially a Rent Act is extended by Parliament which does not contain a provision regarding one of the grounds on which a landlord can seek eviction say one enabling the owner to get back his house for reoccupation and then the Government thinks that anoth er enactment containing such a provision may also be extend ed can it not be plausibly said that the latter is a matter on which there is no legislation enacted in the territory and that the extension of the latter enactment only fills up a void or vacancy Again suppose the provisions of a gener al code like say the Code of Civil Procedure are extended to the Union Territory should be construe section 87 so as to preclude the extension of a later amendment to one of the rules to one of the Orders of the CPC merely on the ground that it will have the effect of varying or amending an existing law We think it would not be correct to thus unduly restrict the scope of a provision like section 87
The better way to put the principle we think is to 683 say that the extension of an enactment which makes additions to the existing law would also be permissible under section 87 so long as it does not expressly or impliedly repeal or conflict with or is not repugnant to an already existing law
In this context reference can usefully be made to the observations in
Hari Shanker Bagla at 39 1 which seem to countenance the by passing of an existing law by a piece of delegated legislation and to draw the line only at its attempt to repeal the existing law expressly or by necessary implication
In a sense no doubt any addi tion however small does amend or vary the existing law but so long as it does not really detract from or conflict with it there is no reason why it should not stand alongside the existing law
In our view section 87 should be interpreted con structively so as to permit its object being achieved rather than in a manner that will detract from its efficacy or purpose
We may also note incidentally that in legislative practice also such successive changes have been allowed to stand together
Lachmi Narain vs Union of India  narrates how the Bengal Finance Sales Tax Act 1941 extended to Delhi under Act III was subsequently amend ed by Parliament Acts of 1956 and 1959 but was also sought to be modified by various notifications from time to time
These notifications were challenged on the ground that the power to extend by notification could be exercised only once and that the impugned notification did not merely extend but also effected modifications of a substantial nature in the Act sought to be extended
No contention was however raised that after the intervention of Parliament in 1956 and 1959 there could have been no extension of the Bengal Act as it would have the effect of adding to or varying the Parlia mentary legislation apparently because they could stand side by side with each other
We therefore think that since the extension of the 1985 Act only adds provisions in respect of aspects not covered by the 1974 Act and in a manner not inconsistent therewith the impugned notification is quite valid and not liable to be struck down
We may now briefly dispose of certain minor aspects of the above contentions which were debated before us 1
It was urged that the provisions of the 1985 Act extended to Chandigarh cannot stand independently and make sense only if read along with and as supplementing the provisions of the 1949 Act already reenacted by the 1974 Act and therefore amend or modify the 1974 Act
This is true but it does not affect our line of reasoning indicated above
684 2 There was considerable argument before us as to wheth er the modifications introduced by the 1985 Act in the 1949 Act as reenacted by the 1974 Act are minor modifications or restrictions or incorporate substantial changes in the scheme of the pre existing law
Counsel for the petitioners contended that the changes introduced by the 1985 Act were substantial and far reaching
On the other hand counsel for the respondent contended to the contrary
Sri Sehgal ap pearing for one of the landlords submitted that the Act already contained provisions enabling any owner to get back his premises when he needed it for his occupation section 133ai and iv and a special provision enabling an Army Officer to expeditiously recover possession of his premises when he needed it for his family section 133ai a and c and that the provision sought to be introduced by the 1985 Act was only a natural and logical extension
thereof
Counsel for the landlord in SLP 92 17 of 1988 sub mitted that it was only a procedural change that the 1985 Act introduced relying on certain observations made by this Court in Kewal Singh vs Lajwanti  All this discussion is wholly irrelevant on our line of reasoning
As we have pointed out in construing the scope of a law ex tended under section 87 qua an existing law the question is not whether there are changes or not the question is only are they inconsistent with in conflict with or repugnant to the scheme of the existing law and we have answered this question in the negative
The question of modifications or restrictions will loom large only in construing the scope of the notification qua the law extended by it
In Lachmi Narain  at p 801 2 and other cases it has been held that such a notification while extending a law can make only such modifications and restrictions in the law extended as are of an incidental ancillary or subservi ent nature and as do not involve substantial deviations therefrom
Here it is common ground that the 1985 Act has been extended as it is with only very minor modifications and hence it is unnecessary to consider the question debated
The reference to the legislative precedent referred to in Kapoor s case does not help us to determine the issue in the present case
Sri Gujral pointed out that in that case Parliament considered it necessary to repeal an Act of Parliament 10 of 1952 and thus create a vacuum before providing for extension of a State law to the cantonment
Central Act 10 of 1952 in that case was a detailed enact ment and the State law extended under section 3 of the Act 46 of 1957 could not have stood alone with it
It was therefore decided by Parliament that the Central Act should stand repealed
Here on the other hand we have attempted to show that both sets of provisions can stand together 685 and effectively supplement each other
Sri Swarup pointed out that in Kapoor s case the words on the date of the notification were omitted with retro spective effect
This also does not help the petitioners
For one thing the omission of those words enlarges the power of notification and made possible the issue of a notification to extend the State law along with its future amendments
But that apart the words on the date of the notification are present in section 87 and authorise the exten sion of the law in force in Punjab as on 15121986 to Chandigarh
There was some discussion before us on the basis of the observations in Lachmi Narain  Ors
vs Union of India  Ors
   as to whether there could be succes sive notifications under section 87
But this question which was answered in the affirmative in Kapoor s case supra does not arise here as there is only one notification under section 87 5
Learned counsel submitted that the observations of the High Court in para 17 and 26 of the judgment under appeal are not helpful as they refer to extension of laws made under the provisions of Acts I II and III which had been held valid in the case
This is correct but as we have pointed out earlier
section 87 only continued the pattern of Acts I II and III after being assured by the Supreme Court that there was nothing wrong with it
This is a relevant aspect which has to be kept in mind in consider ing the issues before us
Learned counsel criticised the observations made by the High Court in para 27 of the judgment
The passage referred to seems to echo the observations made in certain decisions of this Court vide for eg Mukherjea CJ in Rai Sahab Ram Jawaya Kapur vs State at p 237 and Hedge J in Sitaram Bishamber Dayal  at p 143 cited with apparent approval in Roy vs Union  at p 3 17
They should not be understood as equating the exercise of legislative power by Parliament and the Executive
Both sides sought to take advantage of the history of the legislation in this case
As stated earlier the main contention of counsel for the petitioners was that by enacting the 1974 Act and the 1982 Act Parliament had filled in the vacuum which could no longer be penetrated by extension of laws from other parts of the country on the subject
In addition they point out that the 1976 Ordinance making the amendments which are now being sought to be 686 extended was allowed to lapse and that an incorporation of these amendments was not considered necessary when the 1982 Act was passed
These two circumstances show according to them that an extension of the provisions of the 1985 Act was contrary to the clear intention of Parliament
On the contrary counsel for the State submitted that the passing of the 1974 Act and the promulgation of the ordinance show that it was the policy of the Parliament to extend the provisions of the 1949 Act and in particular the provi sions now extended to Chandigarh as well
He further sub mitted that the ordinance could not be made into an Act because of the intervention of the emergency and that the omission to convert the ordinance into an Act and to insert the provisions of the ordinance into the 1982 Act really demonstrate how Parliament is unable to keep track of legis lation necessary for a Union Territory
We do not wish to enter into this controversy for our present purposes as we do not think that any clear inference can be drawn one way or the other from these circumstances
It is also not neces sary to consider these developments in the view we have taken that there can be no objection to extension of provi sions which do not conflict with the existing law in the Union Territory
Sri Swarup raised a point that if section 87 is read as empowering the extension of any law at any time section 89 which prescribes a maximum time limit of two years within which to adapt existing laws for their application to Chandigarh would become redundant
This argument overlooks a very crucial difference between sections 87 and 89
This is that within the period of two years mentioned in section 89 the Central Government can while adapting pre existing laws make any changes therein including changes by way of repeal or amendment
But section 87 though capable of enforcement indef initely confers a more limited power
It can be invoked only to extend laws already in existence to the Union Terri tory and cannot make any substantial changes therein
The power under section 89 is limited in time but extensive in scope while under section 87 the power is indefinite in point of dura tion but very much more restricted in its scope
The above discussions dispose of all the contentions urged before us
For the reasons set out we are of opinion that the conclusion arrived at by the Punjab and Haryana High Court was the correct one
All these petitions and appeals fail and are dismissed and the rules nisi discharged but in the circumstances we direct each party to bear hisits own costs
PSS Appeals  petitions dismissed


Summary:
The assessee a co operative society was rendering the service of ginning and pressing raw cotton received from its members and marketing the finished product on their behalf
The assessee charged the members a certain amount by way of ginning and pressing charges and further charged commission for the sale of the finished product
For the assessment years 1961 62 to 1963 64 the assessee claimed that the receipts from the ginning and pressing activities were exempt under section 81ic of the Income Tax Act 1961 as it stood then which provided that income tax shall not be payable by a co operative society in respect of the profits and gains of business carried on by it if it was a society engaged in the marketing of the agricultural produce of its members
The Income Tax Officer declined to accept the claim on the ground that the assessee had been carrying out the process of ginning and pressing with the aid of power
The Appellate Assistant Commissioner confirmed the orders of the Income Tax Officer
The Appellate Tribunal allowed the second appeal of the assessee holding that the ginning and pressing activities were to be regarded as an integral part of the marketing activity
The High Court while deciding the reference in favour of the Revenue observed that the assessee carried on ginning and pressing of cotton with the aid of power and even if those activities were regarded as ancillary or incidental to its marketing activity they would not come within the category of exempted activities in view of the proviso to the section
Allowing the appeals this Court HELD 1 Ginning and pressing was part of the integral process of marketing
It was an activity incidental or ancillary to marketing 721 which included the ginning and pressing of raw cotton and was not confined to selling activity alone
The members did not take back the cotton after it was ginned and pressed
All the raw cotton so treated was marketed by the assessee on behalf of its members to the outside world and not to its members
723G H 724A Addl
Commissioner of Income Tax Karnataka vs Ryots Agricultural Produce Co operative Society Ltd  Commissioner of Income Tax Gujarat IV vs Karjan Co op
Cotton Sale Ginning  Pressing Society Ltd  referred to
2 The object of section 81i of the Income Tax Act 1961 was to encourage and promote the growth of co operative societies and consequently a liberal construction must be given to the operation of that provision
724A B 3 The proviso to section 81i operates to exclude from the exemption those activities which can be regarded as separate and distinct from the activities enumerated in clauses a to f of section 81i
If the activity in question is inciden tal or ancillary to one of the activities mentioned in those clauses the proviso will not apply
724B 4 The assessee is entitled to the exemption of the profits and gains derived from the activity of the entire business of ginning and pressing of cotton and marketing it by virtue of cl
c of section 81i of the Incometax Act and the High Court erred in holding to the contrary
724F G