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of <h1>Validity of Kerala Act & Electricity Declaration Upheld; Some Cases Remanded for Article 14 Review</h1> <h3>KERALA STATE ELECTRICITY BOARD Versus INDIAN ALUMINIUM CO.</h3> The majority judgment upheld the validity of the Kerala Act, the declaration of electricity as an essential article, and the surcharge order. The appeals ... - Issues Involved:1. Validity of the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order 1968.2. Legislative competence and repugnancy between the Kerala Act and the existing Central laws.3. Excessive delegation and abdication of legislative functions by the Kerala Act.4. Whether the declaration and surcharge order form part of the Act and the effect of Presidential assent.Issue-wise Detailed Analysis:1. Validity of the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order 1968:The Kerala State Electricity Supply Surcharge Order 1968 was challenged for its validity. The order was made under the Kerala Essential Articles Control (Temporary Powers) Act, 1961, which empowered the Kerala State Electricity Board to levy surcharges on non-licensee consumers of electricity, even if long-term contracts existed. The Act aimed to control the production, supply, and distribution of essential articles in the public interest.2. Legislative Competence and Repugnancy:The respondents argued that the Kerala Act was repugnant to the Electricity Act, 1910, and the Electricity (Supply) Act, 1948, which fall under Entries 43 and 44 of List I, and Entry 38 of List III. The Solicitor General contended that the Kerala Act fell under Entries 26 and 27 of List II. The Court clarified that repugnancy arises only if both legislations fall within the same List III. The scope of legislative powers is defined in Article 246 of the Constitution. The Court applied the 'pith and substance' doctrine to determine the primary subject matter of the legislation, concluding that the Kerala Act, in essence, dealt with trade and commerce in essential articles, thus falling under Entries 26 and 27 of List II, and not under Entries 43 and 44 of List I or Entry 38 of List III.3. Excessive Delegation and Abdication of Legislative Functions:The Kerala Act authorized the Government to declare any article as essential without providing specific criteria, which was argued to be an excessive delegation of legislative powers. The Court referred to the principle that the Legislature must declare the policy and provide a standard for guidance. The Act was deemed to be a case of conditional legislation, where the Legislature left the determination of essential articles to the executive, which was permissible given the varying nature of essential articles over time. The Court upheld the validity of the Act, stating that it did not suffer from excessive delegation or abdication of legislative functions.4. Whether the Declaration and Surcharge Order Form Part of the Act and the Effect of Presidential Assent:The respondents contended that the declaration of electricity as an essential article and the surcharge order were not part of the Act and thus not covered by the Presidential assent. The Court held that the declaration and the surcharge order were within the scope of the Act and that the Presidential assent to the 1967 amendment, which extended the Act's life, validated the declaration and the surcharge order. The Court emphasized that only actual repugnancy could be cured by Presidential assent, not the possibility of repugnancy.Separate Judgment by Gupta, J.:Gupta, J. dissented, arguing that the Kerala Act was invalid due to excessive delegation, as it conferred unguided and uncanalized power on the executive to declare any article as essential. He also questioned whether the declaration and surcharge order formed part of the Act, suggesting that they did not, and thus the Presidential assent could not cure the repugnancy. He concluded that the Act was invalid and would have dismissed the appeals.Conclusion:The majority judgment upheld the validity of the Kerala Act, the 1965 declaration of electricity as an essential article, and the 1968 surcharge order. The appeals were allowed, and certain cases were remanded to the High Court for consideration of Article 14 issues. The dissenting opinion by Gupta, J. held the Act invalid due to excessive delegation.
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