Sl.

LEGISLATIVE POWER Bench

No. Strength

17. There is undoubtedly an element of delegation implied in the

provision of Section 27 of the Act, for the Legislature, in a sense,
authorises another body, specified by it, to do something which it
might do itself. But such delegation, if it can be so called at all, does
not in the circumstances of the present case appear to us to be
unwarranted and unconstitutional. It was said by O'Connor, J. of the
High Court of Australia in the case of Baxter v. Ah Way1:
“The aim of all legislatures is to project their minds as far as possible
into the future, and to provide in terms as general as possible for all
contingencies likely to arise in the application of the law. But it is not
possible to provide specifically for all cases and, therefore, legislation
from the very earliest times, and particularly in modern times, has
taken the form of conditional legislation, leaving it to some specified
authority to determine the circumstances in which the law shall be
applied, or to what its operation shall be extended, or the particular
class of persons or goods to which it shall be applied.”
The facts of this Australian case, in material features, bear a striking
resemblance to those of the present one. The question raised in that
case related to the validity of certain provisions of the Customs Act of
1901. The Act prohibited the importation of certain goods which were
specifically mentioned and then gave power to the Governor-
General-in-Council to include, by proclamation, other goods also
within the prohibited list. The validity of the provision was
challenged on the ground of its being an improper delegation of
legislative powers. This contention was repelled and it was held that
this was not a case of delegation of legislative power but of
conditional legislation, of the type which was held valid by the Privy
Council in the case of Reg v. Burah2. It can indeed be pointed out that
in Burah case what was left to the Lieutenant Governor was the power
to apply the provisions of an Act to certain territories at his option
and these territories to which the Act could be extended were also
specified in the Act. The Legislature could be said therefore to have
applied its mind to the question of the application of the law to
particular places and it was left to the executive only to determine
when the laws would be made operative in those places. According
to the High Court of Australia the same principle would apply even
Sl. LEGISLATIVE POWER Bench
No. Strength

when the executive is given power to determine to what other

persons or goods the law shall be extended besides those specifically
mentioned therein. Whether a provision like this strictly comes
within the description of what is called “conditional legislation” is
not very material. The question is, whether it exceeds the limits of
permissible delegation. As was said by O'Connor, J. himself in the
above case, when a Legislature is given plenary power to legislate on
a particular subject there must also be an implied power to make
laws incidental to the exercise of such power. It is a fundamental
principle of constitutional law that everything necessary to the
exercise of a power is included in the grant of the power. A
Legislature cannot certainly strip itself of its essential functions and
vest the same on an extraneous authority. The primary duty of law
making has to be discharged by the Legislature itself but delegation
may be resorted to as a subsidiary or an ancillary measure. Mr
Chatterjee contends that the essential legislative function is to lay
down a policy and to make it a binding rule of conduct. This
legislative policy, he says, is not discernible anywhere in the
provisions of this Act and consequently there is no standard or
criterion to guide the administrative authority in the exercise of the
subsidiary legislative powers. We do not think that this is the correct
view to take. The legislative policy is apparent on the face of the
present enactment. What it aims at, is the statutory fixation of
minimum wages with a view to obviate the chance of exploitation of
labour. The Legislature undoubtedly intended to apply this Act not
to all industries but to those industries only where by reason of
unorganized labour or want of proper arrangements for effective
regulation of wages or for other causes the wages of labourers in a
particular industry were very low. It is with an eye to these facts that
the list of trades has been drawn up in the schedule attached to the
Act but the list is not an exhaustive one and it is the policy of the
Legislature not to lay down at once and for all time, to which
industries the Act should be applied. Conditions of labour vary
under different circumstances and from State to State and the
expediency of including a particular trade or industry within the
schedule depends upon a variety of facts which are by no means
Sl. LEGISLATIVE POWER Bench
No. Strength

uniform and which can best be ascertained by the person who is

placed in charge of the administration of a particular State. It is to
carry out effectively the purpose of this enactment that power has
been given to the “appropriate Government” to decide, with
reference to local conditions, whether it is desirable that minimum
wages should be fixed in regard to a particular trade or industry
which is not already included in the list. We do not think that in
enacting Section 27 the legislature has in anyway stripped itself of its
essential powers or assigned to the administrative authority anything
but an accessory or subordinate power which was deemed necessary
to carry out the purpose and the policy of the Act. The second
contention of Mr Chatterjee cannot therefore succeed.

Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25

8. After the dictum of Lord Selborne in Queen v. Burah1, oft-quoted
and applied, it must be held as settled that the legislatures in our
Country possess plenary powers of legislation. This is so even after
the division of legislative powers, subject to this that the supremacy
of the legislatures is confined to the topics mentioned as Entries in
the lists conferring respectively powers on them. These Entries, it has
been ruled on many an occasion, though meant to be mutually
exclusive are sometimes not really so. They occasionally overlap, and
are to be regarded as enumeratio simplex of broad categories. Where in
an organic instrument such enumerated powers of legislation exist
and there is a conflict between rival lists, it is necessary to examine
the impugned legislation in its pith and substance, and only if that
pith and substance falls substantially within an entry or entries
conferring legislative power, is the legislation valid, a slight
transgression upon a rival list, notwithstanding. This was laid down
by Gwyer C.J. in Subramanyam Chettiar v. Muthuswamy Goundan2 in
the following words:
“It must inevitably happen from time to time that legislation, though
purporting to deal with a subject in one list, touches also on a subject
in another list, and the different provisions of the enactment may be
so closely intertwined that blind adherence to a strictly verbal
interpretation would result in a large number of statutes being
Sl. LEGISLATIVE POWER Bench
No. Strength

declared invalid because the legislature enacting them may appear to

have legislated in a forbidden sphere. Hence the rule which has been
evolved by the Judicial Committee whereby the impugned statute is
examined to ascertain its ‘pith and substance', or its ‘true nature and
character', for the purpose of determining whether it is legislation
with respect to matters in this list or in that.”
This dictum was expressly approved and applied by the Judicial
Committee in Prafulla Kumar Mukherjee v. Bank of Commerce, Ltd.,
Khulna3, and the same view has been expressed by this Court on
more than one occasion. It is equally well settled that the power to
legislate on a topic of legislation carries with it the power to legislate
on an ancillary matter which can be said to be reasonably included in
the power given.

State of Rajasthan v. G. Chawla, AIR 1959 SC 544

22. McDowell14 however makes it clear that so far as the validity of a
statute is concerned, the same can be judged by applying the
principle of proportionality for finding out whether the restrictions
imposed by the statute are permissible and within the bounds
prescribed by our Constitution. McDowell14 referred to this exception
as follows: (SCC pp. 738-39, para 43)
“43. ... It is one thing to say that a restriction imposed upon a
fundamental right can be struck down if it is disproportionate, excessive
or unreasonable and quite another thing to say that the Court can
strike down enactment if it thinks it unreasonable, unnecessary or
unwarranted.”
(emphasis supplied)
That a statute can be struck down if the restrictions imposed by it are
disproportionate or excessive having regard to the purpose of the
statute and that the Court can go into the question whether there is a
proper balancing of the fundamental right and the restriction
imposed, is well settled. [See Chintaman Rao v. State of M.P.16; State of
Madras v. V.G. Row17; Indian Express Newspapers Bombay (P) Ltd. v.
Union of India18.] (The principle of “proportionality” is applied in
Australia and Canada also19 to test the validity of statutes.)
Sl. LEGISLATIVE POWER Bench
No. Strength

Union of India v. G. Ganayutham, (1997) 7 SCC 463

LIST OF JUDGMENTS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

GROUNDS PREVIOUSLY TAKEN BY LITIGANTS

REPLY TO GROUNDS PREVIOUSLY TAKEN BY LITIGANTS

Sl. LEGISLATIVE POWER Bench
No. Strength