JUDICIAL CONTROL OF DELEGATED LEGISLATION

A Project Submitted to:

Army Institute of Law, Mohali

In partial fulfilment of the requirements for the award of

degree of B.A.LLB

Submitted to: Submitted by:

Dr. Vibhuti Jaswal Priya Kumari

(Astt. Professor of law) 2149

 ACKNOWLEDGEMENT

In preparation of this assignment, I had to take the help of some respected persons who deserve
my deepest gratitude. As the completion of this assignment gave me much pleasure, I would
like to show my gratitude towards Dr. Vibhuti Jaswal for giving me guidance for this
assignment through various consultations. I would also like to extend my gratitude all those
who have directly or indirectly guided me in writing this assignment.

I would like to thank my family and peers, whose constant encouragement kept me motivated
to work towards the completion of this project. I would also like to extend my gratitude towards
Army Institute of Law, Mohali and Dr. Tejinder Kaur, the Principal Army Institute of Law,
Mohali for giving me this golden opportunity.
S. No Title Page No.

Introduction 1-2

2 Doctrine of Ultra Vires 3

3 Where Parent Act is Ultra Vires the Constitution 4-5

4 Where Delegated Legislation is Ultra Vires the 6-7

Constitution

5 Where Delegated Legislation is Ultra Vires the 8-11

Parent Act

6 Conclusion 11
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INTRODUCTION

One of the advances in the realm of administrative process made during these days is that apart
from 'pure' administrative function, the executive performs legislative function as well. Due to
a number of reasons, there is rapid growth of administrative legislation.

This type of activity is known as "Delegated Legislation". Generally, what happens is that
legislature enacts a law covering only general principles and policies relating to the subject
matter in question and confers rule-making power on the government or some other
administrative agency. This is so because the direct legislation of Parliament is not complete.
The Executive is given power to supplement the laws made by the Legislature. The result is
that the technique of delegated legislation is so widely used in modern time as a process of
government that there is no statute passed by the Legislature to-day which does not delegate
some power of legislation to the Executive.

❖ DEFINITION:

The term delegated legislation is difficult to define. However, even if defined, it is equally
difficult to determine with certainty the scope of such delegated legislation.

• As stated in Halsbury's Laws of England, "when an instrument of a legislative nature

is made by an authority in exercise of power delegated or conferred by the legislature
it is called “subordinate legislation”
• According to the Committee on Ministers, Powers, the expression "delegated
legislation is used in two senses.
i. In one sense delegated legislation means the exercise of power of rule-making
delegated to the Executive by the Legislature.
ii. In the other sense, it means the output of the exercise of that power.

In the first sense, it means that the authority making the legislation is subordinate to legislature
The legislative powers are exercised by an authority other than the legislature in the exercise
of the powers delegated or conferred on them by the legislature itself. This is also known as
"subordinate legislation" because the powers of the authority which makes it are limited by the
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statute which conferred the power and consequently it is valid insofar as it keeps within those
limits.

In the second sense, "delegated Legislation" refers to all law making which is generally
expressed as rules, regulations, bye-laws, orders, schemes, directions, circulars or notifications.
etc.

Generally, 'delegated legislation' means the law made by the executive under the powers
delegated to it by the legislature. A simple definition of the term 'delegated legislation' may be
given as follows:

"When the function of legislation is entrusted to organs other than the legislature
itself, the legislation made by such organs is called delegated legislation."

DOCTRINE OF ULTRA VIRES

In the control-mechanism, judicial control has emerged as the most outstanding controlling
measure. Judicial control over delegated legislation is exercised by applying two tests:
(a)Substantive ultra vires; and

(b) Procedural ultra vires.

• Substantive ultra vires: Ultra vires means beyond powers, when a subordinate
legislation goes beyond the scope of authority conferred on the delegate to enact, it is
known as substantive ultra vires.

It is a fundamental principle of law that a public authority cannot act outside the powers
and if the authority acts, ‘such act becomes ultra vires and, accordingly void.’ It has
been rightly described as 'the central principle' and ‘foundation of large part of
administrative law’ An act which is done in excess of power is ultra vires.

• Procedural ultra vires: When a subordinate legislation is enacted without complying

with the procedural requirements prescribed by the Parent Act or by the general law, it
is known as procedural ultra vires.
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In case of procedural ultra vires, the Courts may or may not quash delegated legislation
as it depends upon the circumstances whether the procedure is held to be mandatory or
directory.

Judicial control over delegated legislation is exercised by applying the doctrine of ultra
vires in a number of circumstances:

• Where Parent Act is ultra vires the Constitution

• Where delegated legislation is ultra vires the Constitution
• Where delegated legislation is ultra vires the Parent Act

WHERE PARENT ACT IS ULTRA VIRES THE CONSTITUTION

The Constitution prescribes the boundaries within which the legislature can act. If the Parent
Act or enabling Act is ultra vires the Constitution the rules and regulations made thereunder
would also be null and void. The Parent Act is declared ultra vires the Constitution, if it violates:

(i) Express Constitutional Limits;

(ii) Implied Constitutional Limits; and
(iii) Constitutional Rights,

• Express Constitutional Limits

Invalidity of the rules and regulations arises if the Parent Act is violative of express limits
prescribed by the Constitution. The legislative powers of the Union and the States are
distributed in Article 246 of the Constitution. If either legislature encroaches upon the exclusive
sphere of the other as demarcated in three Lists: Union list, State list; and concurrent list, its
legislation will be ultra vires.

• Implied Constitutional Limits

Implied Constitutional limits are those which were enunciated in Delhi Laws Act case. 1 viz.,
laying down policy and enacting that policy into a binding rule of conduct. Legislature cannot

1
AIR 1951 SC 332.
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delegate essential legislative function to any other agency and it it so case delegates the Parent
Act will be ultra vires the Constitution.

On this principle, the Supreme Court in

Delhi Laws Act case

declared the later part of clause 2 bad because it conferred power on the administrative agency
to repeal a law which, according to the Court, is an essential legislative power.

Hamdard Dawakhana v. Union of India2

The Court held Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement)
Act ultra vires the Constitution because the legislature had not laid down sufficient guidelines
for the exercise of administrative discretion in selecting a disease to be included in the list.

St.Johns Teachers Training Institute

v.
Regional Director, National Council for Teacher Education3
The Supreme Court has laid down that delegated legislation is based on the assumption that
legislature cannot possibly foresee every administrative difficulty that may arise in operation
of statute. Delegated legislation is designed to fill those needs and is meant to supplement and
not supplant the enabling statute.

Constitutional Rights

No legislature has competence to pass a law violative of the provision of commerce clause,
right to property under Article 300-A or right to life and personal liberty under Article 21
Moreover, there is another ground on which the validity of Parent Act may be challenged,
although the statute is well within the legislative compliance, yet violates the provisions of Part
III of the Constitution by imposing what may be called an unreasonable restriction on the
enjoyment of fundamental rights.

2
AIR 1960 SC 554.
3
AIR 2003 SCW 8014. 4
AIR1951 SC 118.
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Chintaman Rao v. State of Madhya Pradesh4

The Parent Act conferred power on the Deputy Commissioner to prohibit the manufacture of
bidis in notified areas during the agricultural season as fixed by him. The Deputy Commissioner
imposed a total ban on the manufacture of bidis. The order passed by the Deputy Commissioner
ultra vires in as much as the Act under which it was made violated the fundamental right to
carry on trade, business, profession and occupation guaranteed under Article 19 (1) (g) of the
Constitution of India. In the opinion of the Court the order imposed unreasonable restriction on
the exercise of fundamental right.

WHERE DELEGATED LEGISLATION IS ULTRA VIRES THE

CONSTITUTION

• General
• Arbitrary power is ultra vires the Constitution
• Theory of Derivative Immunity

General:

Sometimes it may happen that the Parent Act may not be ultra vires the Constitution and
delegated legislation may be consistent with the Parent Act, yet the delegated legislation may
be held invalid on the ground that it is ultra vires the Constitution.

It precisely this point which the Supreme Court was called upon to consider in

Narendra Kumar v. Union of India4

In this case the Supreme Court held that even if the Parent Act is Constitutional, the validity
of delegated legislation can still be challenged on the ground that law cannot be presumed to
authorise anything which may be in contravention of the Constitution.

Arbitrary power is ultra vires the Constitution:

4
AIR 1960 SC 430. 6
AIR 1985 AP 208.
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K. Panduranga v. State of Andhra Pradesh6

The Court quashed Andhra Pradesh Catering Establishments (Fixation and Display of Prices
of Foodstuffs) Order, 1978 which made it compulsory for hoteliers to sell all the seven eatable
items mentioned in the schedule. The Court ruled that any order compelling a person to carry
on business against his will was violative of Article 19 (1) (g) of the Constitution.

Labh Chandra v. State of Bihar5

The impugned rule had restricted the voting rights for the management of Jain temples to
persons who are of 21 years, who had donated not less than Rs. 500/-to the temple and who
were residing within the State for the last 10 years. The Patna High Court held the rule to be
discriminatory and ultra vires Article 14 of the Constitution.

Theory of Derivative Immunity:

Where the Parent Act cannot be challenged before the Court because it is protected under
Article 31-B of the Constitution on account of its placement in the Ninth Schedule, the question
is whether the delegated legislation made thereunder can be challenged.

In Vasanial Maganbhai v. State of Bombay6 and Latafat Ali Khan v. State of Uttar Pradesh7
it was held that it the Parent Act is saved under Article 31-B and cannot be challenged, the
delegated legislation also cannot be challenged as being violative of any Fundamental Rights
on the ground of derivative protection.

However, this theory of derivative immunity was not reiterated in

Prag Ice and Oil Mills v. Union of India8

The question before the Supreme Court was whether the orders and notification (child
legislation) issued under the Essential Commodities Act, 1955 can still be challenged as
violative of Fundamental Rights. The Supreme Court answered the said question in the

5
A.I.R. 1975 Pat. 206.
6
AIR 1961 SC 4.
7
AIR 1973 SC 2070.
8
AIR 1978 SC 1296.
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affirmative. The Court held that even in a case where a Parent Act cannot be challenged before
the Court because of protection of Article 31-B of the Constitution on account of its placement
in the Ninth Schedule, the delegated legislation promulgated thereunder can still be challenged
if it violates any provision of the Constitution. In this way child legislation does not come under
the protective umbrella of the Ninth Schedule.

WHERE DELEGATED LEGISLATION IS ULTRA VIRES THE PARENT

ACT

Delegated legislation can be challenged on the ground that it is ultra vires the Parent Act or
enabling statute or any general law. The delegate cannot make a rule which is not authorised
by the Parent Statute or delegating statute. Delegated legislation or subordinate legislation can
be declared valid only if it conforms to the power conferred.

Delegated Legislation in excess of the power conferred by the Parent Act

If the subordinate authority keeps within the powers delegated, the delegated legislation is
upheld valid; but if it does not, the Court will certainly quash it.

Dwarka Nath v. Municipal Corporation9

Proceedings started against Mohan Ghee Company for violation of Rule 32 as on Ghee tins
only "Mohan Ghee Laboratories, Delhi-5" was written. It was pleaded on behalf of Mohan
Ghee Company that the requirement of address under Rule 32 is in excess of the power of the
Parent Act which is restricted to "quantity and quality" only. Accepting the contention, the
Supreme Court held Rule 32 as ultra vires of the Act as it was beyond the power conferred on
the government:

Similarly, in the case of

9
AIR 1971 SC 1844
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Ibrahim v. Regional Transport Authority10

Under the Parent Act, the administrative authority was empowered to frame rules for the
control of transport vehicles. But the authority made rules for fixing sites for the bus stand. The
Court held the rules ultra vires being in excess of power conferred by the delegating statute.

Delegated legislation in conflict with the Parent Act

The validity of delegated legislation can be challenged on the ground that it is in conflict with
any provision of Parent Act.

D.T.O. v. Hajelay11

Under section 95 of the Delhi Corporation Act, 1957, it was provided that no employee can be
dismissed be any authority subordinate to the appointing authority i.e. the General Manager.
Ha delegated that power by making a rule to the Assistant Manager. It was held that such a rule
was in conflict with the Parent Act and therefore it was invalid.

State of Karnataka v. Ganesh Kamath12

Rule 5 (2) made under the Act provided that though a person has passed the test for driving
heavy motor vehicle, he cannot obtain a licence unless he has already possessed a licence and
has two years’ experience for driving medium motor vehicle. He cannot obtain such a licence
unless he has previously passed the test in driving medium motor vehicle. This rule was found
to be in direct conflict with section 7 of the Parent Act. The Supreme Court held that the rule
travelled beyond the scope of statutory authority and therefore it was inconsistent with the
enabling Act.

Delegated legislation in conflict with the prescribed procedure the Parent Act

10
AIR 1953 SC 79
11
AIR 1984 SC 1543
12
AIR 1983 SC 550
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Sometimes it happens that the Parent Act lays down procedure which must be followed by the
administrative body while exercising law-making power under it. If the procedure is not
followed, the delegated legislation may be declared bad.

Banwari Lal Agarvalia v. State of Bihar13

Under section 12 of the Mines Act, 1952, the Central Government was required to consult the
Mining Board constituted under the Act before framing rules. The Central Government made
rules without consulting the Mining Board. The Supreme Court held that the rules so framed
in violation of the statutory provision were invalid being ultra vires the procedure established
by the Parent Act.

In considering the question of validity of delegated legislation on the ground of procedure, the
Court looks to the intent rather than the form of law.

Raza Buland Sugar Co. v. Rampur Municipality14

It was provided under the Municipalities Act, 1916 that the rule in draft form must be published
in local Hindi daily. However, the draft rules were published in an Urdu daily. It was contended
that the draft rules were invalid on account of violation of the mandatory procedure clause.
Rejecting the contention, the Supreme Court held that what was material was the publication
and not the Hindi daily.

Delegated legislation is bad on ground of procedure where it is in excess or in contravention of

delegated powers.

13
AIR 1961 SC 849
14
AIR 1965 SC 895
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Malafide: Bad Faith.

(a) England: Delegated legislation may be challenged on the ground of mala fides or improper
motives of the rule-making authority. Whenever legislature confers any legislative power on
any administrative authority, the said power must be exercised in good faith by the latter and
on proof of bad faith the Court can hold the exercise of power ultra vires. (b) India-

Nagraj v. State of A. P.15

the Andhra Pradesh Government issued an ordinance reducing the age of superannuation of all
Government Employees from 58, years to 55 years. The ordinance was challenged, inter alia,
on the ground that it was mala fide exercise of power. Negativing the contention, the Supreme
Court held that the ordinance making power was a legislative power and the argument of mala
fides was misconceived.

It may be submitted that not only a delegated legislation but a statute passed by competent
legislature and even a Constitutional Amendment can be challenged as being mala fide. The
point is concluded in the leading case of

A.K. Roy v. Union of India16

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It may, however, be observed that "allegations about mala fides are more easily made than
made out." If, however, made out, the delegated legislation may be declared ultra vires.

Unreasonableness

The leading case on unreasonableness of bye-laws is

Kruse v. Johnson.17

In this case, the Parent Act conferred power on the County Council of Kent to make bye-laws.
A bye-law was made "prohibiting any person from playing music or singing in any public place

15
AIR 1985 SC 551
16
AIR 1982 SC 710
17
(1898) 2 QB 91
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or highway within fifty yards of any dwelling house." As it was unreasonable, the same was
therefore held ultra vires.

CONCLUSION

On the whole, judicial review of delegated legislation is more of symbolic value rather than of
much practical value as a control mechanism over delegated legislation. To make judicial
control more efficacious it is necessary that delegating legislation does not confer power in two
broad and generalized language. In such a case the Court may find extremely difficult to hold
a rule as falling outside the scope of power delegated. This is what is envisaged by the doctrine
of excessive delegation. In that case, delegated legislation will be ultra vires if it goes beyond
basic policy underlying the Parent Act passed by the legislature.