Published on: 17 August 2023 at 19:40 IST
Court: Privy Council
Citation: Queen V. Burah (1878)
Honourable Privy Council has held 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”. The doctrine is based on the theory that it is the legislature and not the executive that has to apply its mind to the basis of legislation and application.
The next question was whether the Legislature had power to affect the jurisdiction of the High Court by the mode provided in sect. 9 of Act XXII. of 1869. The powers of the Indian Legislature are as great as those of the Canadian, and see 30 & 31 Vict., c. 3 (Canada), s. 91; which establishes the Parliament of Canada. Compare 3 & 4 Will. 4, c. 85, s. 45. [Lord Selborne:—Is it, contended that the Legislature may not render its enactment dependent for its coming into operation on the act of the executive?] That is the main contention on the other side.
The powers given to the Lieutenant-Governor are within the limits of the legislative authority to confer; see Act XXII of 1869, sects. 5 and 8. For instances of conferred discretion, see Act XI of 1857; Act XVI of 1857; Act XXIII of 1861, sect. 39; Act VIII of 1859, sect. 385; Act XIV of 1859, sect. 24. The Legislature frequently delegates autority to say when the Act is to come into force, within what limits it is to be applied, and to make rules and orders. For instances of delegation of authority by Parliament to the Governor-General, see 22 & 23 Vict. c. 27; 28 Vict. c. 15, sects. 3 and 5; 28 Vict., c. 18; 33 Vict, c. 3; 24 & 25 Vict. c. 67, sects. 44, 46 and 47. It would be a serious thing to interfere with the exercise of such delegated authority as being ultravires the legislative authority to confer. It has been frequently exercised in the colonies as well as in India: see Act III. of 1865 (Cape of Good Hope), sect. 12.
Drafted By Abhijit Mishra
