JUDICIAL CONTROL OVER DELEGATED LEGISLATION:
A CRITICAL ANALYSIS OF THE CONCEPT OF A SUBORDINATE LEGISLATION
BEING ULTRA VIRES THE PARENT ACT
FACULTY INCHARGE: Prof. Virendra Singh Thakur
NAME- Adishree Singh
PRN-19010126103
3rd Year BBA LL. B: Divison B
Administrative Law
Internal Assessment- II
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
TABLE OF CONTENTS
Abstract..................................................................................................................................... 3
Introduction .............................................................................................................................. 4
Delegated Legislation being ultra vires the Parent Statute................................................... 5
The Delegated Legislation exceeds the Delegated Authority's Jurisdiction .......................... 5
The Delegated Legislation contradicts the Parent Statute .................................................... 6
The delegated legislation fails to follow the prescribed process. .......................................... 6
The Delegated Legislation is ill-advised or malafide ............................................................ 7
The Delegated Legislation is Irrational or Unreasonable .................................................... 7
Conclusion ................................................................................................................................ 9
Suggestions ............................................................................................................................ 9
References ............................................................................................................................... 10
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 2
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
ABSTRACT
The Indian Constitution established the Parliament of India to serve as the country's ultimate
legislative body, enabling for the enactment of national laws and the accountability of the
Union administration for its policies. The parliament's primary function is legislation, or the
approval of laws. The legislature is responsible for primary legislation. Delegated or ancillary
legislation is any supplementary legislation that is subordinate, auxiliary to primary legislation,
as well as the legislative authority exercised by a body which is subordinate to the legislature.
The critical question to be answered in the modern legal system is not whether delegated
legislation is desirable or not, but rather what controls and safeguards can be implemented to
guarantee that authority is conferred securely. The legislature's authority over the executive
branch is not abused or misapplied.
KEYWORDS: DELEGATED LEGISLATION, PARENT ACT, SUBSTANTIVE, ULTRA
VIRES, PROCEDURAL
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 3
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
INTRODUCTION
According to the mandates laid down in India, delegated legislation cannot escape judicial
scrutiny in the form of judicial review by the High Courts in addition to the Supreme Court.
Numerous criteria can be used to determine the legitimacy of delegated legislation. In this
aspect, the Indian Legal System is far stricter than English Law.
The legitimacy of delegated legislation in the Indian legal system can be contested on three
primary grounds:
1. Whether the parent statute is ultra vires the Constitution;
2. Whether the delegated legislation is ultra vires the Constitution; and,
3. Whether the delegated legislation is ultra vires the parent statute.
When we examine the idea of 'ultra vires,' we see two distinct types: substantive and procedural
ultra vires.
Substantive ultra vires- Substantive ultra vires is a legal term that refers to a scenario in which
delegated legislation exceeds the authority bestowed on the legislation to enact. It is a well-
established concept that a public authority may not act outside the scope of its jurisdiction, and
if the authority does so, the conduct is ultra vires in nature. This is a significant portion of
Indian Administrative Law. 1
Procedural ultra vires- Procedural ultra vires refers to a circumstance in which delegated
legislation is passed in violation of the parent statute's procedural restrictions. When a
procedure is found to be ultra vires, the courts may or may not strike down the statute,
depending on whether the procedure is required or directory. 2
Through the present article, a discussion will be mandated upon the circumstances in which
delegated legislation may be deemed to be ultra vires the parent statute.
1
DURGA DAS BASU, ADMINISTRATIVE LAW, 12 (7th Ed. 2019).
2
WILLIAM WADE, ADMINISTRATIVE LAW, 39 (6th Ed. 1988).
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 4
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
DELEGATED LEGISLATION BEING ULTRA VIRES THE PARENT STATUTE
It is an important point to note that in all instances, delegated legislative authority is one which
must be exercised within the scope of the statutory rule making authority. As recently
adjudicated upon by the Supreme Court in Kerala State Electricity Board v. Indian
Aluminium Co.3, despite being laid before the House of Parliament or the State Legislature
and subject to their modification, annulment, or amendment, a subordinate legislation is not
valid unless it falls within the statute's rule-making authority.
There are many circumstances in which a delegated statute may be judged to be ultra vires the
parent act:
1. The delegated legislation exceeds the delegated authority's jurisdiction.
2. The delegated legislation contradicts the parent statute.
3. The delegated legislation fails to follow the prescribed process.
4. The delegated law is ill-advised or malafide.
5. The delegated legislation is irrational or unreasonable.
THE DELEGATED LEGISLATION EXCEEDS THE DELEGATED AUTHORITY'S JURISDICTION
When a subordinate authority exercises its rulemaking authority in excess of the Act's
principles and purposes, and the rules are created without reference to the Act's provisions
providing such authority, the authority is said to be acting ultra vires the Act. The Legislature
and its delegate have exclusive jurisdiction to determine how a statute's provisions should be
implemented and what substantive and procedural safeguards should be included in rules or
regulations to guarantee the Act's objectives and purposes are successfully realised. 4
In the case of Baleshwar Pd. Srivastava v. Smt. Sita Devi5, the petitioner challenged the
legitimacy of Rule 16(1), which was created under Section 21 of the Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent, and Eviction) Act, 19726, on the grounds that it was
ultra vires the section. Section 21 stated that if a landlord satisfies all of the section's conditions,
including his bonafide necessity, he is immediately entitled to an eviction order. However, Rule
16(1) took into consideration the tenant's problem and stated that it must be weighed against
3
Kerala State Electricity Board v. Indian Aluminium Co., AIR 1976 SC 1031.
4
Maharashtra State Board of Secondary and Higher Secondary Education v. Panitosh Bhupesh Kumar Seth, AIR
1984 SC 1543.
5
Baleshwar Pd. Srivastava v. Smt. Sita Devi, AIR 1976 All 338.
6
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent, and Eviction) Act, 1972, § 49, No. 13, Act of U.P.,
1972.
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 5
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
the landlord's. The court concluded that the rule clearly violates the Act. Regulations enacted
by the State-Government in the course of carrying out its assigned duty cannot exceed the
authorised bounds, and if they do, they are null and void, regardless of whether they have been
laid before the Houses of the Legislature.
In Dwarka Nath v. Municipal Corporation of Delhi 7, the Central Government was empowered
under Section 23(1) of the Prevention of Food Adulteration Act, 1954 8, to enact rules governing
the packing and labelling of any article of food with the purpose of protecting the public from
being deceived or misled regarding the quantity or quality of the product. The Government
then issued Rule 32, requiring each label to include the manufacturer's name and company
address, as well as a batch number or code number in Hindi or English. The Supreme Court,
accepting the appellants' contention, ruled Rule 32 ultra vires for exceeding the Government's
power.
THE DELEGATED LEGISLATION CONTRADICTS THE PARENT STATUTE
It is a renounced principle that a delegated legislation should not clash with the original statute.
As adjudicated in the case of Ram Prasad Seth v. State of Uttar Pradesh & Ors.9, it was
established that every matter cognizable by Panchayati Adalat must be heard by a Bench
formed in line with the requirements under Section 49 of the Uttar Pradesh Panchayat Raj Act,
1947.10 According to Rule 87 of the Act, a quorum for any Bench meeting is three members of
the Panchayati Adalat. This was a lower figure than that established in the Act. The Court
deemed the regulation ultra vires on the grounds that it conflicts with the delegating act's basic
features.
THE DELEGATED LEGISLATION FAILS TO FOLLOW THE PRESCRIBED PROCESS.
If the delegated law violates the prescribed procedure, it is deemed to be in violation of the
parent Act. In the case of Radhakrishna v. State of Madhya Pradesh11, the State Government
was directed to enact rules with the consent of the Central Government, but the State
Government proceeded without the approval of the Central Government. The rules as a result
were deemed to be null and void.
7
Dwarka Nath v. Municipal Corporation of Delhi, AIR 1971 SC 1844.
8
Prevention of Food Adulteration Act, 1954, § 23(1), No. 26, Acts of Parliament, 1954.
9
Ram Prasad Seth v. State of U.P. & Ors., AIR 1957 All 411.
10
Uttar Pradesh Panchayat Raj Act, 1947, § 49, No. 26, Act of U.P., 1947.
11
Radhakrishna v. State of M.P., AIR 1952 Nag 467.
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 6
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
Additionally, in Raja Buland Sugar Co. v. Rampur Municipality 12, the appellant company
was owned two sugar plants and a number of structures with a water tax imposed by the
respondent, Municipal Board of Rampur. The corporation stated that the charge was unlawful
because the Board did not adhere to the required procedural requirements of the Uttar Pradesh
Municipalities Act, 1916 13 in adopting the proposals and rules. According to the complaint, the
plan and draught guidelines were not properly publicised in a local Hindi newspaper as required
by law, but were instead published in a local Urdu daily. The Court dismissed the appellant's
arguments and ruled that what was necessary was, among other things, was the publication of
the regulation. The need for publication in a Hindi-language journal was just descriptive.
Another case that may be examined is the case of Banwarilal v. State of Bihar14, in which the
Court determined that the regulations were ultra vires as the procedural requirement of sending
draught rules to each mining board were not followed and the regulations were created without
such reference. The Court held that such debate was necessary for the general good.
THE DELEGATED LEGISLATION IS ILL-ADVISED OR MALAFIDE
A measure of delegated legislation can be ruled ultra vires the parent statute if the delegated
authority acts maliciously or with an ulterior intention in exercising its jurisdiction. There is no
example in India at the moment as to where a delegated legislation has been declared ultra
vires on the grounds that the rule-making authority acted in bad faith. However, if the same is
established, the courts invalidate the delegated statute.
In England, courts have found that a rule may be challenged on the grounds of misconduct by
the rule-making authority or because it was irrelevant to the purpose for which the rule-making
power was granted. 15
THE DELEGATED LEGISLATION IS IRRATIONAL OR UNREASONABLE
Bye-laws made by local government organisations such as municipalities have been deemed
unconstitutional under English law due to their unreasonableness. However, it has been
determined that the rules established by government agencies are not reviewable on grounds
of unreasonableness. Due to ministers' accountability to Parliament, this is considered an
exception.
12
Raja Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895.
13
Uttar Pradesh Municipalities Act, 1916, No. 2, Acts of U.P., 1916.
14
Banwarilal v. State of Bihar, AIR 1961 SC 849.
15
Mc Eldowney v. Forde, (1969) 2 All ER 1039.
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 7
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
In India, courts do not assess the rationality of a legislative rule. For instance, in Mulchand v.
Mukand16, the court was petitioned to declare Rule 36 delegated under the Bombay Co-
operative Societies Act unconstitutional due to its irrational nature. The court rejected the
claim, stating that while a bye-law may be challenged on the grounds of unreasonableness, a
statutory provision cannot be attacked in this manner. Similarly, in Subbarao v. IT
Commissioner17, it was held that rules authorised by an enactment are as effective as if they
were parts of the Act, with no jurisdiction for the courts to examine their reason, fairness, or
constitutionality.
However, in subsequent judgements after the case of Maneka Gandhi v. Union of India 18, it
was determined that any delegated legislation might be ruled ultra vires under Article 14 19 of
the Constitution on the basis of unreasonableness. For instance, in Air India v. Nargesh
Meerza,20 the Court struck down a service regulation requiring an air hostess's services to be
terminated upon her first pregnancy. The Court determined that this regulation was very
illogical and arbitrary, violating Article 14.
16
Mulchand v. Mukand, AIR 1952 Bom 296.
17
Subbarao v. IT Commissioner, AIR 1952 Mad 127.
18
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
19
INDIA CONST., art. 14.
20
Air India v. Nargesh Meerza, AIR 1981 SC 1829.
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 8
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
CONCLUSION
In principle, every rationale for judicial review may be classified logically as a subset of the
ultra vires notion.21 By and large, judicial review of delegated legislation serves as a symbolic
rather than practical purpose as a check on delegated legislation. To ensure the effectiveness
of judicial review, delegation law should avoid using two broad and general languages which
grant authority. As a result of the same, the Court may have difficulty finding if a rule exceeds
the power conferred.
This is the intention of the ideology of excessive delegation. In such case, delegated legislation
will be ultra vires if it differs from the essential policy behind the Parent Act, which was
enacted by the legislature.
SUGGESTIONS
A factor to consider in determining whether delegated legislation is ultra vires the parent act is
the extent to which the delegated law may be beyond the act's scope. The issue of the act's
scope necessitates an additional study of what constitutes "reaching beyond the act's scope."
Additionally, when an act is altered, it does not necessarily result in an alteration of the
delegated law, which is another point to consider. The Amendment should also alter the scope
and power of delegated legislation and only then should it be deemed to be ultra vires.
21
M.G. Pandke v. Municipal Council, Hinganghat, AIR 1993 SC 142.
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 9
A Critical Analysis of the concept of a subordinate legislation being ultra vires the Parent Act
REFERENCES
INDIAN CASES
1. Air India v. Nargesh Meerza, AIR 1981 SC 1829 ............................................................... 8
2. Baleshwar Pd. Srivastava v. Smt. Sita Devi, AIR 1976 All 338 ......................................... 5
3. Banwarilal v. State of Bihar, AIR 1961 SC 849 .................................................................. 7
4. Dwarka Nath v. Municipal Corporation of Delhi, AIR 1971 SC 1844 ............................... 6
5. Kerala State Electricity Board v. Indian Aluminium Co., AIR 1976 SC 1031 ................... 5
6. M.G. Pandke v. Municipal Council, Hinganghat, AIR 1993 SC 142. ................................. 9
7. Maharashtra State Board of Secondary and Higher Secondary Education v. Panitosh
Bhupesh Kumar Seth, AIR 1984 SC 1543........................................................................... 5
8. Maneka Gandhi v. Union of India, AIR 1978 SC 597......................................................... 8
9. Mulchand v. Mukand, AIR 1952 Bom 296 ......................................................................... 8
10. Radhakrishna v. State of M.P., AIR 1952 Nag 467 ............................................................. 6
11. Raja Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895 .................................. 7
12. Ram Prasad Seth v. State of U.P. & Ors., AIR 1957 All 411 .............................................. 6
13. Subbarao v. IT Commissioner, AIR 1952 Mad 127 ............................................................ 8
INTERNATIONAL CASES
1. Mc Eldowney v. Forde, (1969) 2 All ER 1039. ................................................................... 7
CONSTITUTIONAL PROVISIONS
1. INDIA CONST., art. 14............................................................................................................ 8
STATUTES
1. Prevention of Food Adulteration Act, 1954, § 23(1), No. 26, Acts of Parliament, 1954 .... 6
2. Uttar Pradesh Municipalities Act, 1916, No. 2, Acts of U.P., 1916 .................................... 7
3. Uttar Pradesh Panchayat Raj Act, 1947, § 49, No. 26, Act of U.P., 1947 ........................... 6
4. Uttar Pradesh Urban Buildings (Regulation of Letting, Rent, and Eviction) Act, 1972, § 49,
No. 13, Act of U.P., 1972 .................................................................................................... 5
BOOKS
1. DURGA DAS BASU, ADMINISTRATIVE LAW, 12 (7th Ed. 2019). ........................................... 4
2. WILLIAM WADE, ADMINISTRATIVE LAW, 39 (6th Ed. 1988). ............................................... 4
Adishree Singh/19010126103/Div B/Administrative Law/Internal II/Article Submission 10
