53. In interpreting a law, we must bear in mind the caution struck by Lord Daglock in W. Devis and Sons Ltd v. Atkins, reported in ;P77 AC 931. Lord Diplock has pointed out in a graphic phrase refusing to construe a provision which would convert it “into a veritable rogue’s charter”.
54. In considering the powers of the Indian Legislature, the Privy Council, in R.V. Burah laid down a fundamental principle for the interpretation of a written Constitution. In a classic passage. Lord Selborne said:
The Indian Legislature has powers expressly limited by the Act of Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition, or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.
55. No decision of the Privy Council has thrown any doubt on the soundness of Burah’s case. On the contrary, it has been relied upon in case after case from the Dominions. In Kesavananda v. Kerala (MANU/SC/0445/1973 : AIR 1973 SC 1461) the majority of Judges reaffirmed the correctness of the principle laid down in Burah’s case. In Kesavananda V. Kerala (supra) Ray, J. Palekar, J., Khanna J., Mathew J., Beg J., Chandrachud J., affirmed the principle Dwivedi J. affirmed the principle without mentioning Burah’s case by name. But the view expressed by Hedge and Mukherjea JJ. that Burah’s case was only an authority on delegated legislation and not in the interpretation of a written Constitution. But it is the majority decision which is binding on us.
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