MOHAMMAD ANZAR HUSNAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) An order of demand made under the Bihar Agriculturists' Levy Order, 1950 was served on the petitioner Syed Mohammad Anzar Husnain, requiring him to deliver a certain quantity of paddy to a person and at a place named in the order. The petitioner did not comply with the order and was, in consequence, prosecuted. An application was then made to this Court under Article 228 of the Constitution, and as questions of constitutional law arose, this Court withdrew the case from the Court of the trying Magistrate in order that these questions might be decided. The questions that arose are, in the first place, whether the extent of the delegation of legislative or quasi legislative power made by the legislature to the executive in Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, is in excess of that permissible under the Constitution, & secondly, whether certain provisions contained in the Bihar Agriculturists' Levy Order, 1950, violate the fundamental rights conferred by Article 14 and Article 19, Clauses (f) and (g) of the Constitution. These questions are of far-reaching importance, and his Lordship the Chief Justice constituted myself and my brothers Ramaswami and Sarjoo Prosad, JJ. as a Special Bench to determine them.

(2.) The impugned Act is not a mere skeleton or frame-work, that is, it does not merely state in general terms the object which the legislature has in view and then delegate to an outside authority a completely untrammelled power to take any steps whatever which it may consider necessary or desirable to achieve that object. It is interesting to compare it with the Food-stuffs (Prevention of Exploitation) Act, 1931, which was enacted by British Parliament when Great Britain went off the gold standard in order to meet a situation comparable with that with which the Indian legislature had to deal. The English Act is described in the preamble as:

(3.) Mr. B.C. Ghosh, in attacking the impugned Act, relies mainly 6n the provisions contained in Sub-section (1) of Section 3, Section 4 and Section 6. The learned advocate for the petitioner points out that jurisdiction to legislate on the subject-matter of Section 3 (1) of the Act, is under the Constitution, assigned to the States and that the power which Parliament at present has to legislate or it is (sic) or was originally derived from a statute of the British Parliament ( 9 and 10, George VI, Caput 39). Mr. Ghosh also points out that the articles of trade or commerce which are set out in the English statute are precisely the articles which are defined in the impugned Act as essential commodities. In this situation, Mr. Ghosh contended, Parliament, in enacting Section 3(1), has delegated its whole power to legislate on this particular matter, and under the Constitution it was not entitled and had no power to do this. This argument which Mr. Ghosh puts forward is substantially the argument which commended itself to Evatt, J. of the Australian High Court in 'VICTORIAN STEVEDORING & GENERAL CONTRACTING CO. v. DIGNAN', (1931) 46 Comm- W LR 73 at p. 123. Evatt, J. there said that a law might be a law with respect to the legislative power of the Commonwealth and yet might also be a law with respect to one of the matters on which the Parliament of the Commonwealth was empowered to legislate, in which case the law would be a valid law. If, on the other hand, a law of the Commonwealth Parliament was a law with respect to legislative power and if that were the only description to which it answered it would not be valid. I do not think that the criterion adopted by Evatt, J. can be applied in India, or at all events, can be applied to an Act passed by the Indian Parliament. In Australia, Parliament is under the Constitution, empowered to legislate on certain specified matters concurrently with the States and exclusively on a small number of other matters and residuary powers are vested in the States. In this situation it may well be said that if a law enacted by Parliament does not answer the description of a law relating to one or other of the specified matters set out in the Constitution Act, it is not a law which Parliament had legislative jurisdiction to make. In India, however, residuary powers of legislation are vested in Parliament, and, in consequence any law which Parliament may enact which does not come under any of the other entries in the Union or Concurrent Lists must come under entry No. 97 in the Union List unless, of course, it comes under some entry in the State List in which case it is invalid on quite another ground. Apart, however, from this it seems to me quite clear that if the criterion laid down by Evatt, J. were applied to the impugned Act, it would have to be held that it was 'intra vires.' It has to be remembered that Evatt, J. had in mind a hypothetical case in which an enactment was passed to the following effect: "The executive Government may make regulations having the force of law upon the subject of trade and commerce with other countries or among the States." Now, even if Sub-section (1) of Section 3 of the impugned Act is considered in isolation from the context in which it appears, it clearly does not go quite so far as that. It, for instance, stipulates that the power or discretion conferred on the executive is to be exercised only for certain specific purposes. Section 3(1) cannot, however, be divorced from Sub-section (2) of Section 3 which immediately follows it. Sub-section (2), as I have already said, indicates with some precision the steps which Parliament considered ought to be taken to achieve its purpose. The reason, it seems clear, why Sub-section (1) was inserted was to enable other similar steps, of which Parliament had not foreseen the necessity, being taken as soon the occasion for taking them should arise. The draftsman accomplished this by inserting in the Act a general provision, and then following it up with another and detailed special provision.