Judgments Under Knife

(P.V. Aiyappan, Advocate, Ernakulam)

S. 2(1) (a) (f) of the Prevention of Food Adulteration Act as amended by Act 34 of 1976, has recently given rise to conflicting views by the Highest Court of the land. S. 2(1) (a) (f) reads "If the article consists wholly or in part, any filthy, putrid, disgusting, rotten, decomposed or deceased animal or vegetable substance or is insect infested oris otherwise unfit for human consumption". The question whether "unfit for human consumption" qualifies the words preceding it, has come up for elaborate discussion before a Division Bench of Delhi High Court in Dhanaraj v. Municipal Corporation of Delhi reported in 1973 Cr. L. J. 433 and the Division Bench following the reasoning adopted by a single Judge of the Calcutta High Court in Rameswarlal Harlalak v. Union of India (AIR. 1970 Cal. 520) held "that the word otherwise in sub-clause 1 of S. 2 does suggest that all the adjectives used, do refer to the quality of the articles being unfit for human consumption. To fall under that category the article of food must be unfit for human consumption either because it consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or deceased animal or vegetable substance or because it is insect infested or on account of any other cause". (The word disgusting stands omitted by Act 34 of 1976). The Delhi Division Bench seems to have adopted a redrafting of the clause in accordance with their understanding of the same. A Bench of two Judges of the Supreme Court had occassion to examine the interpretation given by the Delhi High Court in Municipal Corporation v. Kacheroomal reported in AIR. 1976 SC. 394. Their Lordships held that "the phrase "or is otherwise unfit for human consumption" has to be read conjunctively and not disjunctively. The adjectives filthy, putrid, disgusting, decomposed, rotten, insect infested refer to the quality of the article and furnish the indicia for presuming the article to be unfit for human consumption". The Supreme Court has virtually approved the re-drafting of the clause done by the Delhi Division Bench. In para 7 of the Judgment, the Supreme Court has noticed that the phrase, "or is otherwise unfit for human consumption" has to be read conjunctively and not disjunctively and observed "if it is read conjunctively that is, in association with what precedes it, sub clause (f) with slight con--sequent re-arrangement and paranthesis would read like this: "If the article is unfit for human consumption on account of (a) its consisting wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or deceased animal or vegetable substance or being insect infested, (b) or on account of any other cause". In this view of the sub-clause, proof of 'unfitness of the articles for human consumption', is a must for bringing the case within its purview". It is observed in para 8 of the Judgment "if the phrase is to be read disjunctively the mere proof of the whole or any part of the article being filthy, putrid, disgusting, rotten, decomposed or deceased animal or vegetable substance or being insect infested could be conducive to bring the case within the mischief of this sub clause and it would not be necessary in such a case to prove that the article is unfit for human consumption". And the learned Judge proceeds to prefer the 1st construction "as it comports best with reason, common sense, realities, the tenor of this provision and the main purpose and scheme of the Act", it would appear that no meaning or stress is given to the words "is otherwise" used in the clause and it is an elementary rule of construction of a statute that the legislature should not be deemed to have used a word unnecessarily in a statute. Neither the Delhi Division Bench nor the Supreme Court in the aforesaid ruling, seems to have laid any emphasis on the words "is otherwise". It certainly comports best with common sense that the preceding words are independent by themselves and the last category comprises food materials which are rendered unfit for human consumption otherwise than the preceding processes. It is unfortunate that the learned Judges who decided those cases have not bestowed much thought on these important words. A single Judge of the Kerala High Court has followed the view (as he is bound to) and decided that the phrase "or is otherwise unfit for human consumption" occurring in S. 2(1) (a) (f) is to be read conjunctively with the preceding words as is done in the Supreme Court case. That remains as an authority as far as Kerala is concerned. (vide 1978 KLT. 242)

2. A Bench of three Judges of the Supreme Court has taken it for granted that 'insect infested' appearing in S. 2 (1) (a) (f) is sufficient to attract the definition of "adulterated" within the meaning of S. 2(1) (a) (f) (vide 1980 Cr. LJ. 216). In para 3 of the Judgment it is observed that "the High Court did not take into consideration the provision of S. 2 (1) (a) (f) of the Act, according to which an article of food is deemed to be adulterated if inter alia it is wholly or in part insect infested. So when it had been proved that this was sold, the only possible conclusion was, that the respondent has committed an offence under S. 7 read with S. 16 of the Act for that reason and that there was no occassion to examine, the standard of quality of 'besam' specified under Rule 5 of the rules". In this ruling the Supreme Court has overruled the decision of the Delhi Division Bench reported in 1973 Cr. LJ. 1959 from which the appeal before the Supreme Court was entertained and decided. This ruling of the Supreme Court was rendered on 1 — 8—1979. It is lamentable that when a larger bench is taking an apparently contrary view from what has been taken by the Supreme Court by a two member decision reported in AIR. 1976 SC. 394, no reference was made to the said ruling, nor is there any demur to the reasoning given by the learned Judges who decided AIR. 1976 SC. 394.

3. A bench of two Judges of the Supreme Court again considered the scope of the definition contained in S. 2 (1) (a) (f) in the ruling reported in AIR. 1980 SC. 360 which was decided on 11 — 10—1979 (Municipal Corporation Delhi v. Tekchand Bhatia) (1980 KLT. Short Notes 1). In this case the Supreme Court has ruled that "otherwise unfit for human consumption" should be read disjunctively without any reference to the preceding words. Referring to Municipal Corporation of Delhi v. Kacheroomal (AIR 1976 SC. 394) the learned Judges expressed as follows "If we may say so with respect we have reservations about the correctness of this decision, but it is not necessary to refer the case to a larger bench". After quoting paragraphs 7 and 8 of the decision in Kacheroomal's case the learned Judges expressed their view "with utmost respect we are not able to share this view and would hold that the observation made in the Judgment will be confined to the particular facts of the case". One could not find any cogent reason for not referring the case to a larger bench when the bench which is rendering the decision consists of an equal number, differing from an earlier decision of a bench consisting of an equal number. Unfortunately in this case also which was rendered on 11—10—1979, the Judgment rendered by the three Judges in Municipal Corporation of Delhi v. Ram Swaroop which, though wanting in an elaborate discussion, has not been referred to in the latter ruling. Now it is up to the Supreme Court to resolve the anomalous situation created by the conflicting decisions on the same subject capable of creating far reaching consequences. Not only that, viewed from the impact of Article 141 of the Constitution of India, the ruling in 1978 KLT. 242 has got the backing of AIR. 1976 SC. 394, since it has not been overruled by a larger bench. Municipal Corporation of Delhi v. Ram Swaroop reported in 1980 Cr.LJ. 216 lacks in discussion and did not refer to AIR. 1976 SC. 394 or overrule the reasoning contained therein. Therefore the position will be all High Courts and other subordinate courts could follow AIR. 1976 SC. 394 and AIR. 1980 SC. 360 : 1980 KLT. SN. case No. 1 and decide case in accordance with the principles laid down in either case and in accordance with the dictates of the conscience of the Judges of the lower judiciary. It is humbly submitted that the words 'or otherwise unfit for human consumption" must stand by itself because that interpretation appears to be reasonable and accords with common sense which according to Justice Krishna Iyer is "the best law giver".

ADDRESSING COURT

(N.K. Kuttiraman, Advocate, Trichur)

It won’t be far from true to say that the administration of justice in India is copied from England which is one of the seats of very ancient monarchy. King in England is the Supreme Law-giver, Supreme Executive and Supreme Judge. As he found it inconvenient to discharge all these functions together, he delegated them. He created the Parliament and delegated his legislative powers; he appointed Ministers and delegated to them his executive powers and appointed Judges and delegated to them his judicial powers. That is how Judges in England became more or less the representatives of the King. The legal fiction is that King in England is administering justice through his representatives called judges and as such they were addressed ceremoniously as ‘Your Lordship and Your Honour!

This ceremonious form of address is confined to the court room, that is, the Judge is addressed “as ‘Your Lordship’ or ‘Your Honour’ only when he is on the Bench. When he is in Chambers or outside, he is addressed as ‘Sir’. One is not obliged to address him as ‘Your Lordship ‘or’ Your Honour when outside the Bench.

In India we have copied the practice of England and ceremonious forms as ‘Your Lordship’ and ‘Your Honour’ are used on the assumption that Judges in India represent the British Monarch who was the ruler of India. This is quite right so far as we remained a colony of the British King.But what is the position when we became a Republic on 26th January 1950? Are we to continue the old forms or are we to adopt new forms? That is the question.

In Republican countries the forms used are different, for instance, in America, a Judge in the Bench is addressed as ‘Mr. Judge, Sir’ for, he does not represent the King, who America has none, on the other hand, he represents the people. In Russia the Judge is addressed as “comrade Judge”. It has to be noted that in Republican countries Judges are not addressed as ‘Your Lordship’ or ‘Your Honour’.

In India we have to change the present form for two reasons. For one thing India has become a Republic and as such Judges are not the representatives of the King, on the other hand they represent the people of this country from whom they have received their authority. For another, the present forms tend to show inequality in status. In a democratic and Republican country any citizen is equal to any other citizen and to retain such forms of address as would tend to show inequality will be a violation of the fundamental principles guaranteed by the Constitution. So we have to change the present form into ‘Mr. Judge’ ‘Mr. Munsiff’ and so on. I also suggest that “submission” and “make myself clear” and such other things must also be dropped. I hope that people who are competent to effect the change will bestow some thought upon this matter.

Of course, I am mindful of the possible opposition from such quarters as are very much pleased with these forms. But this is not a question of the pleasure or displeasure of some people; it is a question of choosing some forms consistent with our Constitution.

THE RENT CONTROL ORDINANCE OF 1959

(An Advocate)

A Bill to amend and consolidate the Buildings Lease and Rent Control Order of 1950 in force in T-C. State and the Madras Buildings Lease and Rent Control Act of 1949 was introduced in the Kerala Legislative Assembly, reported by the Select Committee and is awaiting the 2nd reading and further steps. It was included in the agenda of the Legislative work of the Assembly during the last two Sessions. Several amendments have been tabled by the members. Hardly a month before the next session of the Assembly an Ordinance is promulgated by the Governor enacting a law for the Buildings Lease and Rent Control for the whole of Kerala State. The circumstances which are said to exist for this emergent and extraordinary legislation are still unknown. There is a law in force in the State for the control of rents of buildings. There is no urgency to amend that law by such a summary procedure as the promulgation of an Ordinance. This is a clear instance of an abuse of the power to legislate by Ordinance vested in the Executive. Such Ordinances justify the suggestion made recently by the Speaker of the Lok Sabha that this power of the Executive shall be taken away as it amounts to “the very negation of Parliamentary democracy.

Except in the case of one new provision to avoid eviction contained in Section 11(2)(b) and another in the proviso to Section 5(2) regarding the determination of fair rent, most of the main provisions of the Ordinance are more favorable to the landlords than the Travancore-Cochin Rent Control Order, 1950. The popular notion that all evictions are stayed till the passing of the Bill by the Assembly is probably a misreading of Section 31. That section only makes certain evictions since 12-2-1958 voidable at the instance of the evicted tenants. It is not all evictions, but only those evictions which could not have affected if this Ordinance were in force. Ordinarily such evictions will be thosewhich could have been avoided on deposit of the arrears of rent even a month after the order of eviction as laid down in the above mentioned Section 11(2)(b).

Section 8. The provision for demanding a month’s rent as advance has been amended to two months’ rent. (Vide Section 8 (1) (a) Proviso). The provision in Clause 6 (c) of the T-C. Rent Control Order for refund of the “sum paid in excess of the fair rent” even up to the very day of taking the building on rent, is amended by the proviso to section 8(1) (b) of the Ordinance so as to limit the refund of the excess to a period of one year prior to the filing of the petition for fixing the fair rent. The provision for refund i» based on the sound principle that a landlord who has taken a rent higher than what he was legally entitled to shall refund the excess. But limiting the period to one year is an arbitrary provision favoring the land-lord No person shall be allowed to retain that which he has obtained illegally. If any limitation were to be placed it should have been a period of 3 years on the basis of the provision in the Limitation Act for similar cases. There is no reason or rhyme in fixing one year as the period of refund. It is a reactionary provision intended to benefit the land-lord.

Section 11. The provision in S. 11 (6) that a tenant whose building has been renovated shall be liable to pay enhanced rent is not just and fair, as renovation means only restoration to the original condition. Increase in fair rent is provided for in case of additions, improvements or alterations, as well as in cases of the increase of taxes and cases in Sections 6 and 7. Provision for enhancement of rent over and above these even for renovation is also a reactionary provision favoring the land-lord.

Section 12. The worst is the provision contained in S.12 of the Ordinance that no tenant shall be allowed to contest a petition for eviction on any ground unless all the admitted arrears and even the rent during the pendency of the proceedings are deposited. Such a provision was unknown in the T-C. State it is one of the primary principles of the rule of law that no decision shall be given against a party unless he is given an opportunity to be heard. Such penalties as the payment of admitted amounts are sometimes imposed by courts on negligent parties who have not made use of the opportunities for contest given to them. It is not proper to lay down such conditions for the initial exercise of a right to contest. The hardship of such a condition precedent will be patent when the contest itself is regarding the petitioner’s right to receive the rent, the maintainability of the petition or the denial of his title. Similarly, if an agent of the land-lord files a petition for eviction without the written consent of the land-lord as laid down in S. 11 (16), this provision in S. 12 will disable the tenant even to oppose such a petition. This does not mean that a tenant may be allowed to be in arrears of rent. But this section seems to be intended primarily to collect the rent for the land-lord. Moreover, the right to contest without these conditions has been a vested right of the tenants in the T-C. State and petitions pending for the last two or three years are being contested without such payments. This provision read with S. 30 that pending proceedings shall be ‘‘continued subject to the provisions of this Ordinance”, compels the contesting tenants to deposit all the rent up to this day before they can proceed This is taking away a vested right with retrospective effect. This will ‘ cause great hardship to large number of tenants in the Travancore-Cochin areaagainst whom petitions have been pending long before the Ordinance. If this provision were made applicable only to the petitions filed after the date of the Ordinance it would have been less troublesome. There is another anomaly. Subsection 3 of this section directs that if any tenant fails to pay the rent as aforesaid all further proceedings in the petition shall be stopped and the land-lord shall be put in possession of the building, whereas even a tenant against whom an order of eviction for arrears of rent has been passed can avoid the order by depositing the arrears within a month as laid down in S 11(2)(b). Further, there is no provision to revive the contest in case the tenant pays after the proceedings are stopped. No time is fixed for complying with this provision in the case of pending proceedings.

The provision for two months’ advance, the provision for refund only of one year’s excess, the provision for increase of rent on renovation and the provision for deposit of rent in pending proceedings are enough to establish that this is a law intended to favor the land-lords. It cannot be called a progressive socialistic legislation. It is more a Rent Recovery Act than a Rent Control Ordinance.

Section 2. A few other defects of the Ordinance too cannot but be pointed out. The definition to the term ‘‘tenant” does not seem to include the legal heirs of deceased tenants of non-residential buildings whereas in the case of houses such heirs are regarded as tenants. If this discrimination is deliberate it does not appear to be reasonable If a shop keeper dies, his son who wants to continue the trade in the same building will not be a tenant of the building according to this definition unless he enters into a fresh agreement of tenancy with the land-lord.Section9. According to S, 9 it is only after a refusal to accept the rent that the tenant can give notice to the land-lord to mention a Bank and it is only after that the rent may be sent by money order. This would mean that the tenant has to offer the rent at first either in person or through a messenger. Will not the tender be equally good if it is sent by money order even at the outset instead of offering it hi person? Why is it necessary that the tenant should go over with the rent to the land-lord or send it through anyone to wait on the land-lord’s convenience? Is it a return to the feudal custom which has almost died out?

Section 11. The proviso to S. 11(2)(a) stipulates that on receipt of notice of default the tenant shall tender the rent together with 6 1/4% thereof by way of penalty. This is an usurious rate of interest When for every debt it is interest at a moderate rate that is realisable why should such a high penalty be stipulated for default of rent? This too is an indication of the leaning towards the landlord disregarding the hardship of the tenant.

Section 17. It is a notorious fact that the land-lords do not attend to the periodical maintenance and necessary repairs of the buildings thereby’ causing great inconvenience to the tenants of residential buildings especially. The tenants of thatched houses and small houses are the worst sufferers in this. Leaking roofs, broken doors and window-shutters letting in sun and rain, damaged floors, and ever-flowing water taps are common in the raise of small houses paying rent. The tenants of these houses are too poor to afford to seek the remedy provided for in S. 17(2) by putting in petitions beforeThe Controller who has to notify the land-lord, hear the “objections and pass orders, often after a number of adjournments spread over months. In order to avoid this it could have been stipulated that a month’s rent may be used by the tenant for annual maintenance and repairs. The assessments by local autho­rities make such deductions for maintenance. This concession given to the land-lord by local authorities should be extended to the tenants.

Section 31. The provision to set aside evictions, for arrears of rent since February 1958 though in appearance very beneficial is likely to do more harm than good to many in its application. Many of the evicted tenants may have settled in new houses and new tenants will be occupying the vacated houses. As Justice Balakrishna Iyer of the Madras High Court observed recently in a Rent Control Petition such provisions will “impose considerable hardship on the allottee”.

The Sections are very long and complex and should have been divided into separate sections with separate headings. Many of the sections contain different subjects which could have been split up enabling easy reference. S.4 with 8 Sub-Sections and further sub-divisions could have been split up into at least 6 separate sections with distinct headings. Similarly S.11 with 16 Sub-sections and more sub-divisions.

On the whole the Ordinance is more favorable to the land-lords than the T-C. Rent Control Order of 1950. It is reactionary and ill suited to the policy of a socialist Government and a socialistic pattern of society. The Legislature has to amend it and make it progressive. 

SOME ASPECTS OF CONTROL OVER DELEGATED LEGISLATION

(Memana Viswanathan, Advocate, Ernakulam)

The problem of parliamentary delegation of legislative powers to subordinate authorities is one of the most vital problems that calls for careful tackling and early solution in any constitutional democracy of modern times. Delegation has assumed enormous proportions in recent times that it has not only encroached upon the legitimate sphere of the legislature but also laid hands on a sizable portion of the liberties of the citizens. It is a matter of crucial importance that some methods of control or adequate safeguards are provided to minimize if not to eliminate the risk involved. A passing glance at the twin aspects of parliamentary control and judicial review of delegated legislation is attempted below.

The Committee on Ministers’ powers known as the Donoughmore Committee defined delegated legislation as the exercise of minor legislative power by subordinate authorities and bodies in pursuance of statutory authority given by the parliament itself. The delegates are usually the ministers or ministries, local authorities or boards or other statutory bodies like universities etc. They are generally never individual officers of the lower grade. Delegated legislation otherwise called or ill-called as subordinate legislation passes under the name of orders, bye-laws, regulations, rules, schemes etc. It is undoubtedly true that subordinate legislation is meant only to fulfill the function of filling up matters of-minor details as per the terms and policy of the parent statute for its effective administration. But more often than not they trench upon the important fields of legislation like determination of matters of principles, imposing taxes, amendment of laws (the notorious Henry VIII clause) and sometimes creating new offences. Subordinate legislation under these circumstances tend towards legislative abdication. The executive tends more-and more towards assuming the autocratic role of a legislative despot.

(Lord Hewart-The new despotism 1929)

This is not only mischievous but dangerous too.

Subordinate legislation became necessary because of parliament’s lack of time to shape all legislation, its lack of technical knowledge, aptitude, etc. It has to content with laying down general principles leaving it to the executive to administer them by framing suitable rules or regulations within the frameworkwork of the laws passed. In such a context delegation becomes a matter of necessity. But it may sometimes happen that parliament in its wisdom or hurry may delegate what it should have properly kept in its own hands and the executive in its lack of wisdom may make rules travelling very well beyond the terms of delegation with an eye on their own convenience than the liberty of the people. In short as the late speaker of our Lok Sabha Sri. Mavlankar remarked “Delegated legislation is both a necessity and a risk”

Makers of modern constitutions faced with this problem may either include an express provision on delegation in the constitution as was done in France or leave the solution to parliamentary practice and judicial decisions as in the case of the U.S.A. and other Commonwealth democracies including India. Under the British system with its close inter connection between the legislature and the executive there is no obstacle to delegation of powers to any authority since as is well known the parliament is supreme in itself. Yet the Committee on Ministers’ Powers while not denying the legal capacity of the parliament to delegate recommended that the more pronounced kind of such delegation should be abandoned. The position is quite the reverse in U.S.A. There the doctrine of strict separation of powers is supposed to be embodied in the constitution in its entirety and as such any sort of delegation inter departmental or otherwise was viewed with horror and obviously considered to be incompatible and necessarily unconstitutional. But judicial decisions coming down through a century have considerably watered down this stiff attitude. The dicta of Chief Justice Marshall in Wayman v. Sothard (1825-10 Wheaton 1) followed by other decisions gave the impetus for this change. During the third decade of this century the American Supreme Court gave its decisions in two very important cases, the Panama Refining Co. v. Bryan (1935) 293 U.S.388 and The Schechter Poultry Corporation v. U.S. (1935) 295 U.S.495 wherein the court struck down the National Industrial Recovery Act (N.I.R.A.) holding that essential legislative powers have been delegated unconstitutionally. The learned Judges remarked: “Powers were not confined within banks from overflowing” and “It is delegation running riot” etc. etc. These remarks of the learned Judges need not be taken as-a broadside against subordinate legislation as such because subordinate legislation is felt to be a necessity not only in the U.S.A. but also by all other countries with a constitutional set up. The attitude of Cordezo J in the Panama Refining Co- case noted above can very well be discerned from a few observations of his. “The separation of powers between the executive and the congress is not a doctrinaire concept to be made use of with pedantic rigor. There must be a sensible approximation; there must be elasticity of adjustment in response to the practical necessities of Government which cannot for see today the development in their nearly infinite variety”. But it should be carefully noted here that any attempt at delegation of functions partaking the character of a legislative power is strictly disallowed with rigor. The principles accepted and acted upon by the Supreme Court can very well be summarized in the words ofCrawford (statutory construction) as follows:-” the legislature mustdeclare the policy of the law and fix the legal principles which ‘are to control in given cases and must provide a standard to guide the official or the board empowered to execute the law. This standard must be laid down in broadgeneral terms. It is sufficient if the legislature will lay down an intelligibleprinciple to guide the executive or administrative official

 The filling in mere matters of details within the policy and according to the legal principles & standards established by the legislature is essentially ministerial rather than legislative in character even if considerable discretion is conferred on the delegated authority.” Any over stepping of the limits prescribed above is resented to and will certainly be struck down as unconstitutional. This difference of approach from the days of Chief Justice Marshall to Earl Warren C.J. has provoked our Chief Justice Sri Sudhi Ranjan Das to remark thus:-”Though the English and American systems started at two opposite ends they have now come and met halfway” (Address -Administrative Law Seminar).

Delegated legislation is sometimes identified with subordinate legislation or conditional legislation. But it is essential that the subtle distinction is properly appreciated In the case of subordinate legislation the legislature lays down the policy or standard retaining its powers in tact leaving to the executive the mere duty of filling up details. In a way this may be termed as administrative delegation. Similar in scope is conditional legislation. In this case the legislature legislates conditionally leaving a discretion to the executive to decide as to when and where it shall be put into effect. The power delegated is only the power to determine some fact or state of things upon which the law makes or intends to make its action depend. Any delegation confined strictly to the limits stated above is permissible and constitutional. But delegation of legislative powers as such does not stop here. Often by such delegation the executive is entrusted with the determination of policies, power to tax etc which are strictly legislative. This is not only illegitimate but also objectionable for as Cooley says: (Constitutional Law 4th Edn P. 138) “No legislative body can delegate to another department of the government or to any other authority the power either generally or specially to enact laws. The reason is found in the very existence of its powers. This high prerogative has been entrusted to its own wisdom, judgment and patriotism and not to those of other persons and it will act ultra virus if it undertakes to delegate the trust instead of executing it.”

It is interesting to note here that the legislature sometimes employs ingenious methods to take away the rules made under such delegated legislation from the mischief of judicial review. They include an express provision in the enabling statute to the effect that all rules made there under are to be treated as if enacted in the main statute itself. The British judiciary rightly questioned such dubious procedures and struck down various rules as ultra virus unless they were otherwise found intra virus.

The extent and scope of the power of delegation of legislative functions in India can be examined in the light of decided cases of the Supreme Court with special reference to its advisory opinion in in Be Delhi Laws Act, 1951 SCR. 747. Three enactments dating from three different periods were referred to the court to ascertain whether they were void due to unconstitutional delegation. The. First was the period before the 1935 Act, the second under the 1935 Act and the third under the present Constitution. It ‘was during the first period that the Privy Council decided the celebrated case A’, v. Burah (1878-5 I A. 178) and during the second period the Federal Court gave its decision in the case of Jatindru v. Bihar (1949 F L T J225). Our Supreme Court made an elaborate study of all the case material and legal principles involved before reaching a decision. This elaborate study and learned discussion did not result in any invention or propounding of new theories or principles. R. v. Burah remains the cornerstone of the law of delegation in India and as pointed out by one learned Professor all our judges made it the starting point of their opinions. In R. v. Burah the question before their Lordships of the Privy Council was whether the impugned Act which authorized the Bihar Government to fix the areas and the time when the Act should be extended thereto was bad for unconstitutional delegation. It was contented that the colonial legislature was only an agent or delegate of the British parliament and a delegate cannot further delegate since the principle is “Delegatus non potest Delegare”. Negative this contention their Lordships held that the Colonial legislature is not a delegate and within its sphere its powers are as plenary and supreme as the British parliament itself. Further the Act in question is only an example of conditional legislation which the legislature could always validly make. Their Lordships studiously refrained to pronounce upon abstract principles of delegation as such. The same views were expressed by the Privy Council in later well known cases like Mussel Vs. Queen (1882 7 AC 829), and in Re Initiative and Referendum Act (A.I.R. 1919 P.C. 145) etc. etc In Jatindranatha Gupta Vs. Bihar (1949 FLJ 225) the problem was as to the power to extend the operation of the Act beyond the period mentioned in the Act. It was held that such a power is essentially legislative. Kania C. J. observed thus:-” Applying the principles laid down in R. v. Burah and Russel v. Queen, I do not think the extension of the Act beyond the first year by the notification can escape being classified as delegated legislation”. The Supreme Court examined every available piece of case material before coming to a conclusion. The final outcome was a variety of opinions with a majority of five out of seven upholding the validity of the enactments while Mukerji and Bose JJ. dissented on the point of repeal and amendment thus constituting a majority in that respect. A few passages of some of the learned judges may help to show the exact nature of the conclusions reached. Sastri J. stated that in the Indian Constitution in as much as there is no fusion of legis­lative powers and does not know of the American doctrine of separation of powers the court cannot strike down an Act simply because parliament decides to exercise such powers through an appointed instrumentality. The legal position even prior to the Constitution is brought out clearly by Mahajan J. “In my opinion the Constitution as envisaged by the Indian Councils Act 1861 does not authorize the delegation of essential “legislative powers by any legislative authority brought into existence by that Act to the executive and it was for this reason that their Lordships of the Privy Council in Burah’s case did not base their decision on this ground but merely upheld the enactment as intra virus on the ground of conditional legislation”. Elsewhere the learned Judge States “In my opinion therefore delegation of legislative power to the executive in matters essential is unconstitutional Any legislative practice adopted during the pre-constitution period for undeveloped and excluded areas can have no relevancy in the determination of this point”. An examination of the divergent pronouncements of all the Judges will show that the judges were reluctant to accept transfer of power to the executive in the matterof essential legislation. But the possibility of transfer of non-essential legislative powers relating to conditional or subordinate legislation is generally agreed to. What are essential or non-essential legislative powers have been dealt with in a few later decisions of the court. In Surya Pal Sing v. U.P. (1952 S.C.R. 1056) it was said that in as much as the law is within the competence of the legislature it is perfectly good and cannot be challenged on the ground of invalid delegation. The same was stated in Kathi Raning Rawut v. Sourastra 1952 SCR 435. In two of the later important cases, Harishankar Bagla v. M. P. (1954 SCJ 637) and RajNarain v Chairman P.A. Committe (AIR 1954 SC 569) the Supreme Court apart from affirming the doctrine stated above clarified further as what is an essential legislative function which according to the court “consists in the determination or choice of the legislative policy and enacting that policy into a binding rule.

The whole question of delegation in India is succinctly stated by His Lordship D.N. Sinha J. of the Calcutta High Court in Liberty Cinema v. Commissioner Calcutta Corporation (A.I.R. 1959 Cal.45). The relevant passages from the judgment may be fruitfully reproduced here in extensor.

“The power to delegate legislative functions generally is not warranted under the Constitution of India at any stage. The whole scheme of the Constitution is based on the concept that legislative functions of the Union will be discharged by Parliament and that of the States by the respective State Legislatures and no other body. The essentials of legislative function, viz , the determination of the legislative policy and its formulation as a rule of conduct are in Parliament or the State Legislature as the case may be and nowhere else. If however owing to unusual circumstances and exigency the legislature does not choose to lay down detailed rules or regulations that work may be left to another body which is then deemed to have subordinate legislative power. This is described as “Subordinate Legislation.” The legislature cannot however abdicate its legislative functions 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. The essential legislative function consists of the determination or choosing of the legislative policy and of formula enacting the policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much detail as it thinks proper and it may delegate the rest of the legislative work to subordinate authority which will work out the details within the framework of that policy. So long as a policy is laid down and standard established by statute no constitutional delegation of legislative power is involved. It is equally true that where no policy is laid down but arbitrary power is given without limit there is a surrender of legislative function in that no policy has been laid down or indicated.”

As already stated judicial review is certainly the most important single safeguard against excessive delegation resulting by way of legislative abdication or executive usurpation. But no less in importance is parliamentary control because the latter checks the mischief at the very source. It saves the citizen the enormous trouble of setting in motion the judicial process every now and then. To prevent is always better than to seek a remedy later. The first step in this direction was taken by the parliament of U. K., prompted by the revelations of Lord Howart in his New Despotism, by appointing a specialcommittee, the committee on Minister’s powers to go into the whole question of delegation and make necessary recommendations for establishing proper safeguards in this field. The committee made a thorough study after taking elaborate evidence and suggested various methods from time to time many of which were translated into practice. Similar steps were taken in the U.S.A. also. An important step in this direction was taken in India on December first of 1953 when the Speaker of the Lok Sabha appointed a “Committee on Subordinate legislation” under the chairmanship of Sri H.V. Pataskar the then Union Minister for Law. The committee was required to go into the question of subordinate legislation and make proper recommendations. A detailed study was undertaken and various suggestions were made by the Committee from time to time some of which may be dealt with below. The main work of the committee centered round the following topics.

(a) To evolve a uniform pattern of terms of delegation with particular regard to laying of rules before the legislature and the right of the latter to alter the same.

(b) To improve the publicity rules and modify the language employed to make it more intelligible and understandable by the people.

(c). to scrutinize the rules made till date and evolve a jurisprudence of delegated legislation as a safe guide for further action in the field.Dealing with the question of uniformity the committee in its second sitting on March 1954 recommended thus

(a)     Bills containing proposed legislation should always be accompanied by a memorandum explaining its scope and details.

(b)     The provisions dealing with delegation should always be uniform. With regard to the laying of rules before the parliament the committee found that existing Acts contained four types of delegating provisions. The majority of delegating provisions belong to the type wherein the government can promulgate rules without any formality. The second type is where the government is required to lay the rules before the legislature after publication while the third type requires the Government to lay the rules before the parliament subject to moderation by the latter. The fourth type requires the draft rules to be laid before the parliament for a certain period before publication and subject to modification by the latter. The last instance is very rarely found. For the sake of uniformity and proper scrutiny the committee suggested that,

(a.) All Acts making delegation of powers should uniformly require the rules made under them to be laid on the table of the Houses as soon as possible but not later than seven days after their publication in the Gazette?

(b) The laying of rules on the table of the Houses should be in all cases for a uniform total period of 30 days.

(c) The enabling Acts should always provide expressly that the rules made under them shall be subject to modification by the parliament.

(d) In exceptional cases provision may be made for laying of rules and regulations on the table of the “Houses 30 days before the rules come into force.

The next question that came up for consideration, was *the question of proper publicity of rules and improvement of their language. In the U.K. as well as the U.S.A. there are statutes regulating the same. In the U.K, thereIs the Rules Publication Act 1893 requiring prior notice of draft rules for circulation, criticism and suggestions? In the USA there are the Federal Register Act 1935 and the Administrative Procedure Act 1946 providing for publicity and popular consultation. There is no such analogous legislation attempted so far in India. The committee dealt with this question and recommended that:-

a. The importance of rules is to be assessed by the Government in the light of its genera) concern to the public.

b. Copies of such rules are to be published simultaneously by the Central and State governments in their official Gazettes and in the appropriate regional languages.

c.Press communiqués to publicise the general import and effect of the rules are to be issued in proper cases.

The question of the language employed in the various rules also attracted the attention of the committee. As a former Lord Chancellor observed, these rules are of “unrivalled complexity and difficulty and couched in language so tortuous that I am tempted to reject them as quite meaningless.” To avoid all such difficulties the committee suggested that explanatory notes should be appended to the rules to explain their general scope.

Finally the committee went into the whole range of almost all the rules made under the various Acts and suggested definite modifications and appropriate alterations. The committee demanded the authorities to alter the rules when they lacked simplicity and definiteness, were liable to cause injustice, were couched in complicated language, omitted matters of vital importance and also in various other obnoxious cases. The committee by its labor is slowly developing a jurisprudence of its own in the matter of subordinate legislation. It may be noted here that the committee also went into various other aspects of the problem and made many noteworthy suggestions which due to lack of availability of material is not discussed here. The obviously important role played by the committee requires no stress at all. As one noted parliamentarian remarked: “The usefulness of the committee and its prestige can be established only as the time goes on and as the committee functions dispassionately with the judicial mind and moderation on non party lines.” If the various recommendations of the committee are to be accepted and acted upon by the parliament many of the risks involved in delegated legislation could very well be avoided. What is stated viz a viz the Union Parliament applies mutatis mutandis to the various State legislatures also.

It is heartening to note that the Indian Law institute has taken upon itself this onerous task of conducting elaborate research into this problem to seek a solution and make necessary suggestion. It can reasonably be hoped that their Endeavour will be adequately fruitful. Very recently the International Committee of Jurists which met in New Delhi this month had the opportunity to consider the various aspects of subordinate legislation in relation to the rule of law. Many of the speakers were of the view that it might be necessary to prohibit subordinate legislation in matters of fundamental rights (the Hindu d/8-1-59). The suggestion certainly requires strong endorsement. The rule of law as Dicey meant once is “the equal subjection of all to the ordinary law of the land administered by the ordinary law courts”. Further “not only that no man is above the law but (what is a different thing) that here everyman whatever be his rank or condition is subject to the ordinary law of the realm and amenable the jurisdiction of the ordinary tribunals”. What Dicey meant by ordinary law is the common law and the statute law enacted by the parliament. He would not have known that the bulk of law which regulates human conduct in modern times is the result of legislation by other than legislative bodies, that is by delegated legislation. Further what Dicey means by ordinary courts are the ordinary civil courts only. It is interesting to note that the rights and liabilities of the citizens are adjudicated upon more by quasi judicial and administrative tribunals than the ordinary civil courts. According to our Union Minister for Law there are as many as one hundred administrative tribunals operating under the Central Acts alone. To take one example the recent Companies Act 1956 itself has clothed the executive with judicial and quasi judicial powers or functions in a number of very important matters. Under these circumstances if the ‘Rule of Law’ is to be saved from being reduced to a simple epita on the grave of Dicey it is high time that “administrative Justice” be given its proper place in our Victorian set up along with taking proper safeguards to reduce and confine the vagrant overflowing of legislative delegation within its proper limits.

How to Address Judicial Officers

(By an old Stager)

The forthright and stimulating article by Shri. N.K. Kuttiraman published in 1959 K.L.T. page 31 (Journal Section) interested me and induced me to present in brief another point of view so that it may also be taken into consideration before any decisive step is taken. I do not appear in a controversial spirit my purpose is only to express a view different from that advanced in the article.

The writer of it wants to put an end to the prevailing system of addressing judicial officers when presiding in courts, by such honorific titles as “Your Lordship” and “Your Honour” and to substitute in their place such modes of address as “Mr. Judge” and “Mr. Munsiff”. If I understand him correctly, his grounds are two:-(l) That in a monarchy, a Judge is the representative of the sovereign and so shines with a reflected light. Adulatory kinds of address were there appropriate, but they should find no place in a democracy like ours. A judicial officer in a democracy is as good a man as and no more than, any other individuals. That being so, the application to them of elevated modes-of address is entirely out of place.

I am unable to see how adjudging a democracy occupies a lower status than one under a monarchy If at all, a greater respect is due to a Judge in a democracy than to one under a monarchy The former kind of Judge is a more independent officer; besides, he is virtually the people’s own nominee, notwithstanding the prescribed procedure under which the selection is made. It is only when respect is induced by coercion, patent or latent, it becomes irksome and dishonorable; but when respect is voluntarily offered, to one of your own choice, selected under machinery framed by yourself, and then the element of indignity does not come in. By “honouring” a Judge, a member of the Bar, in such circumstances, only honours himself. Let the angle of vision, be shifted in the light of this, and then see what ensues. 

Ground (2).

The Constitution decrees and secures equality among the people. To day to “honour” a Judge derogates from this constitutional right of equality. The presiding Judge, the members of the bar, those who stand beside them or promenade the corridors of the court house, are all equal in the eye of the law. True, but there are obvious reasons why judicial officers when in court, should not be addressed in terms of ordinary familiarity. Majesty of the law and the dignity of its administrators ought to be maintained in the interests of the public. Judicial paraphernalia like royal or Presidential paraphernalia serves a useful purpose and are insisted on all along for psychological reasons. I need not harp on this point The recently submitted Report of the Law Commission, it will be noticed, deprecates in strong terms, conduct that would detract from the dignity and prestige of the judiciary and it will be an irony if the Bar which should serve as the feeder as well as the buttress of the Bench becomes the first to start the process of degradation. A time may come when these formalities can be dispensed with, but till then, they should be permitted to continue. Any unconsidered precipitate step will be fraught with serious consequences. Patience: Time will bring opportunely its own remedy in this ever changing world.