JUDICIAL REVIEW

Scope - The delegated legislation does not fall beyond the reach of the judicial
review power of the Supreme Court and the High Courts. In fact it can be doubly
reviewed.
Firstly, to ensure the consistency with the provisions of the Constitution; and,
secondly to enforce the compliance with the statutory policy objectives,
purposes and limitations.

No rule, order, regulation or notification can contravene and violate any of the
constitutional limitations. The rule making power must be "Subject to the
provisions of the Constitution", and should be conferred on the Government
under a valid law. What the Legislature cannot do, it cannot delegate to the
Government; and consequently, the Government cannot do. If the Act under which
delegated legislation is framed is ultra vires the power of the Legislature, the
delegated legislation cannot at all be sustained. When the Act is unconstitutional,
the rules cannot be saved.1

The delegated legislation is void ab initio, if the statutory delegation in the

particular case is constitutionally impermissible, and is void on the ground of the
excessive delegation for being in violation of the rule against delegation of the
essential legislative function, or for subverting the scheme, policy and intendment
of the parent law. The raison d' etre for this ground of voidness of delegated
legislation is that the rule that limits the competence of the Legislature, limits the
competence of the administrative authority as well; and the former cannot delegate,
if delegation implies giving away of the essential legislative function and results in
the legislative abdication. Subject to the permitted wide limits of the delegation, and
the established presumption of validity of the statute, the delegated legislation may
be assailed on amongst other the following grounds, namely.

1. That it is ultra vires the statute, or in opposition to the policy and purpose of
the statute;

2. That, it is void for excessive delegation;

1 HarakChandv. Unionof India, AIR 1970 SC 1453; Mohammad Faruk\. State of Madhya Pradesh,
AIR1970SC93; Shamaraov. Union Territory of Pondicherry, AIR 1967SC 1480; Devi Das Copal
Krishan v. State of Punjab AIR 197 SC 1985; Hamdard Dawakhana v. Unionof India, AIR 1960
SC 554; Raj Narain v. Patna Administration Committee, AIR 1954 SC 569.
 3. That, it is irregularly framed, and that in framing it the prescribed mandatory
conditions are not complied; and,

4. That, it contravenes any of the constitutional limitations.

ULTRA VIRES RULE :

The rules, regulations and notifications should not be ultra vires the statutorily
delegated authority as determined by the judicial interpretation of the relevant
provisions of the given statute2. Neither the scope of the rule-making power can be
extended by the rule-making authority, nor the rules framed after stretching the
statutory limits be deemed intra vires the delegated authority.

i. They should be intra vires the objects, purposes and the policy of the
enactment.

ii. They should sub serve, or carry out the statutorily stated purposes.

iii. They must not falsify the legislative intendment, and must not travel
beyond the scope of the statute.

iv. They must not be inconsistent with the provisions of the Act; should
conform to the standards, follow the guidelines laid out by the Legislature,
and should strictly carry out the policy of the statute.3

v. They must not transgress the area carved out by the statute, and should
not violate its scope and purpose.

vi. They must provide what the Legislature is required to prescribe; and the
rule-making authority should make no serious substantial omission.4

vii. No rule should make a provision inconsistent with, or in conflict with the
statute.5 Any conflict whether perceptible or imperceptible must make a

2 Daya v. Joint Chief Controller of Imports and Exports, AIR 1962 SC 1796; Hamdard Dawakhana
v. Union of India, supra; Darshan Singh v. State of Punjab, AIR 1954 SC 83; Adarsh Industrial
Corporation v. Marketing Committee, AIR 1962 Punjab 426; Venkatanarayna v. State ofA.P., AIR
1960 A.P. 171.
3 Venkateswara v. Government ofA.P., AIR 1966 SC 629; D.S. Mills v. Union of India, AIR 1959
SC626; Sivarajanv. Unimoflndia, AIR 1959SC556;ShahabuddinKhanv. StateofU.P., AIR1960 All.
373; Munsha Singh Dhaman Singh v. State of Punjab, AIR 1960 Punj. 217.
4 Chief Commissioner of Ajmer v. R.S. Ddni, AIR 1957 SC 304.
5 ManepalliVenkatanarayanav. StateofA.P., AIR 1960 AP171;Ram Prasad v. State, AIR 1952 All.
843.
 rule void for being ultra vires the statute.6 If the rule is consistent, and
not in conflict with the parent Act, but is inconsistent with a law already
in force, it is not void.7

viii. When challenged on the ground of the substantive ultra vires, the court
can examine their contents without, of course, looking into the policy and
wisdom of their subject-matter, except indirectly, to ensure conformity
with the legislative intendment.

ix. It can see if the statutory instrument in its pith and substance falls
within the scope of the delegated power, and within the import of the
language and policy of the statute read as one piece. It does not strike a
statutory instrument, merely because, it does not mention the particular
section of the relevant particular statute if it is justified otherwise.

x. The non-recital of the relevant section, and the fact that it has been made
under the delegated authority does not make it invalid.8

xi. If the statutory source of the delegated power is shown to be established,

the fact that the statutory instrument inaccurately purported to be made
under any other provision does not render the delegated legislation
inoperative.

xii. Any inaccuracy in the recital in the preamble to the statutory instrument
should be ignored, if the competence of the Government or the
administrative authority (delegate) is otherwise beyond doubt.9 It is
rendered invalid only if it defeats the statutory policy; and reduces the
legislative objects and purposes to ad absurdum, or otherwise nullifies
their effect.10

xiii. The doctrine of severability applies as a practical rule of the judicial review
of delegated legislation; and only such of the rules framed in a statutory
instrument are deemed void as are shown to be ultra vires the statute.
The whole statutory instrument is struck down, if the objectionable rules

6 Mohammad Hussain v. State of A.P., AIR 1962 97, Adarsh Industrial Corporation v. Market
Committee, AIR 1962 Punj. 526.
7 T.B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79.
8 Brajendra Kumar v. Union of India, AIR 1961 Cal. 317.
9 Afzal Ullah v. State ofU.P., AIR 1964 SC 264; Balakotiah v. Union oflndia, AIR 1958 SC 232.
10 Raj Narain v. Patna Administration Committee (supra pp. 247,250-251).
 cannot be severed.

Subject to their basis of validity and given the competence of the rule- making
authority, the rules cannot be found inoperative. Any excessive exercise of
discretion by the authority ex facie does not render them bad.

Coir Industry Act, 1953 - Under Section 26(1)

The Central Government can make rules for carrying out the purposes of
the Act, subject to the condition of the previous publication.

- Sub-section (2) enumerates the matter in respect of which rules can

be made in particulars without prejudice to the generality of the power
conferred under Sub-section (1). Among other things rules can be
made for registration of the manufacturers of coir products, and
articulation of conditions of such registration and the grant and issue
of licences, forms of application etc.

- The licensing rules framed under this Act provided that no person
could export coir fibre, yam or coir products without a licence, and a
person who in any three preceding years exported not less than 55 tons
of coir products (excluding coir ropes) would be entitled to a licence;
and, if at all, he could be registered as an exporter "if during the period
of twelve months immediately preceding the date of application, a
minimum quantity of 25 tons of coir yam had been ranked in a factory
owned by the applicant and registered under the Factories Act, 1948".

- It was held that the exercise of the rule-making power was not marked
by excessive discretion on the part of the rule-making authority.

- While attacking the rules it was contended that by prescribing a

quantitative test instead of a qualitative test the rule-making authority
ousted the small dealers in coir products from the export trade. This
created a room for a wide discretion in matters of control and
regulation of trade in coir export. It was also pointed out that the
contents of the rules went contrary to the recommendations of an Ad
Hoc Committee for External Marketing set up by the Coir Board.

- The Court observed that it was not a case of the exercise of excessive
 discretion by the rule-making authority when it was competent to
make rules in the way it did. It could go against the recommendations
of the Ad Hoc Committee, because, it was finally for this body to decide
which test would meet the requirements of public interest, and which
method would be the most expedient in controlling the industry in the
national interest.11

The court has no jurisdiction to question the wisdom of the rule making
authority. The rules cannot be attacked on the general plea of unreasonableness
like the bye-laws framed by a local body. The reasonableness of the rules etc. can
be examined only when it is necessary to do so for purposes of Articles 14 and 19 of
the Constitution.

Procedural irregularities

- The rule of procedural ultra vires too provides only limited articulated
means of judicial control of delegated legislation. It is necessary that the
rule-making authority should be exercised in the manner indicated by the
Legislature. It is incumbent upon the rule making authority that while
framing the rules it should follow the prescribed procedure. Any disregard
of a mandatory provision renders the rules nugatory. Any non-compliance
with the directions, if they are deemed mandatory; and non-existence of
the conditions precedent to the rule-making must render a statutory
instrument invalid.

- The question whether a statutory provision prescribes a mandatory rule,

or is merely directory in character too is a question of law, requiring
interpretation of the relevant statutory provisions and assessment of their
nature., scope, purpose, scheme and intention12.

- The purpose for which the provision is made, the nature of the legislation,
the legislative intention, the degree of inconvenience or injustice to
persons resulting as the provision is read in one way or the other, the
relation of the particular provision to other provisions dealing with the

11 P.V. Sivarajan v. Union of India, AIR 1959 SC 556.

12 Sitapur Municipality v. Prayang Narain, AIR 1970 SC 58.
 same subject, the language of the provision and other relevant
considerations e.g. general practice, have all to be taken into account in
arriving at the conclusion whether a particular provision is mandatory or
directory :

1. The Raza Buland Sugar Co. Case.13

FACTS - The appellant Co. owned two sugar factories and a number of buildings in
respect of which the respondent Municipal Board of Rampur levied a water tax. The
company contended that the levy was illegal as the Board had not framed the
proposals, and the rules in accordance with the mandatory procedural provisions
laid down in the U.P. Municipalities Act, 1916.

ALLEGATIONS - It was alleged that the proposal and the draft rules were not
published in the prescribed manner in a local paper published in Hindi as required
statutorily, and instead they were published in a local Urdu daily. It was urged that
the publication in a local paper published in Urdu was not in accordance with the
mandatory provision that the publication "shall...be in a local paper published in
Hindi"; and therefore, the tax was not levied according to law, no matter other
conditions were complied with.

RESPONDENTS - The respondent contended that the provision in respect of the

publication was directory in character, and had been substantively complied with.
It was pointed out that there was no local paper regularly published in Hindi.

HELD - The Court held that the appellant's arguments could not be accepted; and
ruled that what was mandatory was publication of the rules etc. The provision that
the publication would be in a paper published in Hindi was only directory.

- The publication was intended to give previous publicity, and appearance of

the proposal of, and rules in the Hindi version in a local Urdu paper was
the substantial compliance with the statutory requirement. It fully met the
condition of previous publicity; and satisfied the purpose of giving an
opportunity to the residents for filing objections, and of being heard.
Wanchoo J. in the course of his judgment said :

13 Raja Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895. See also Sitapur Municipality v.
Prayag Narain, AIR 1970 SC 58.
"The question whether a particular provision of a statute which on the face of it
appears mandatory in as much as it uses the word "shall"as in the present case
or is merely directory cannot be resolved by laying down any general rule; and
depends upon the facts of each case, and for that purpose the object of the statute in
making the provision is the determining factor So long as publication is made in
substantial compliance with the manner provided therein it would serve the purpose
of the mandatory part of the section which provides for publication."

- The statutory recognition of the substantial compliance with the procedural

conditions is often made by providing that after the delegated legislation is
formally approved by the Government and published in the gazette it should
be the "conclusive evidence" of procedural regularity in making of the rules
and the bye-laws framed by the administrative authority, any directory
procedural irregularity notwithstanding.14 This shield is pierced, however, in
case the statutory instruments is ultra vires the delegated authority; and
the delegated legislation is "in complete lack of jurisdiction."15 16

2. The Banwarilal's Case.17

FACTS - The appellant assailed the validity of certain regulations framed by
the respondent State under the Mines Act, 1952. The statutory authorisation
required that before the regulation was made the draft shall be referred to
every Mining Board which is in the opinion of the Central Government
concerned with the subject dealt with by the regulation; and the regulation
"shall not be published until such Board has had a reasonable opportunity of
reporting as to the expediency of making the same and as to the suitability of
its provision."

ALLEGATIONS - It was contended that the impugned regulation was made

without such prior reference to any Mining Board.

RESPONDENT - The respondent State urged that the reference was not
made, because, in fact, no such Board then existed. Nevertheless, it was

14 Berar Swedeshi Vanaspati v. Municipal Committee, Skcgaon, AIR 1962 SC 425; Beni Prasad v.
Jabalpur Improvement Trust, AIR 1978 MP191.
15 Trust Mai Lachmi Sialkot Biradri v. Amritsar Improvement Trust, AIR 1963 SC 976.
16 Bamoari Lai v. State of Bihar, AIR 1961 SC 849.
17 Banwarilal Agarwalla vs The State of Bihar, 1961 AIR 849, 1962 SCR (1) 33
 contended that the regulation was invalid as the condition for reference to the
Mining Board was mandatory.

HELD - The Court sustained the regulation, and held it valid. On the
question whether a statutory provision was mandatory or directory in
character Das Gupta J. observed as follows :
" ......... no general rule can be laid down for deciding whether any
particular provision in a statute is mandatory meaning, thereby, that non-
observance thereof involves the consequence of invalidity, or only directory, the
non-observance of which does not entail the consequence of invalidityBut in
each case the court has to decide the legislative intent to decide this we have
to consider not only the actual words used, but the scheme of the statute, the
intended benefit to public of what is enjoined by the provisions and the
material danger to the public by the contravention of the same."

- Applying these tests it has been held that the provisions for consultation
"with such other authority as it may deem desirable" before an authority
made a general order in respect of placing of the bus stands was
directory.18 The condition of laying also seems to be directory.19

- However, the conditions of obtaining concurrence of the Government,20

and publication of statutory instruments are, on all hands, deemed
mandatory in view of express statutory provisions in the General Clauses
Act, 1897; and the Harla's Case 21 The Court can investigate into the
contention of non-satisfaction of conditions precedent to the making of a
statutory instrument. If the instrument contains a recital that the
conditions are satisfied the court will presume that the statutory condition
was met, and the order was regularly made.

- The burden to prove that the conditions precedent are not satisfied falls on
the person who asserts their non-satisfication. On the other hand, in the
absence of such recital the rule-making authority should establish that
they are in fact satisfied by making depositions in an affidavit or by other

18 T.B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79.

19 Munrta Lai v. H.R. Scott, AIR 1955 Cal. 451.
20 Raiha Krishna v. State, AIR 1952 Nag. 387.
21 See also Raja Buland Sugar Co. v. Rampur Municipality (supra pp. 294-295.)
 means :

3. The Swadeshi Cotton MiUs Case.22

FACTS - The appellant challenged the constitutionality of Section 3 of the
U.P. Industrial Disputes Act, 1947; and also two general orders made there
under for non-fulfillment of certain conditions precedent to their making. The
statutory provision laid down that an order could be made, if in the opinion
of the State Government it "is necessary, or expedient so to do for securing
the public safety or convenience, or the maintenance of pubic order or
for maintaining employment".

ALLEGATIONS - It was alleged that the State Government had made the
order which did not recite that the stated conditions existed. The non-recital
would per se mean that the Government formed no opinion, and as such the
condition precedent to the making of the orders was not fulfilled. Therefore,
the making of the orders was not a valid exercise of the delegated authority.

RESPONDENT - In reply the Government at first filed no affidavit stating

their position; but when asked by the Supreme Court deposed that the
notifications containing the impugned orders "were issued only after all
aspects of the matter were fully considered by the State Government, and it
had satisfied itself that it was necessary and expedient to issue the same for
the purpose of securing, The Court accepted the affidavit.

HELD It was held that the alleged condition precedent to the making of the
orders was in fact satisfied. Answering the objection for the non recital, the
Court held that the defect was not fatal to the validity of the orders. Wanchoo
J. in the course of his Judgment of the Court declared the law as follows :
"It is true that power may have to be exercised subject to certain conditions
precedent, but that does not assimilate the action of the subordinate executive
authority to something like a legislative procedure which must be followed
before a bill becomes a law where certain conditions precedent have to be
satisfied before a subordinate authority can pass an order (be it executive, or of
the character of subordinate legislation), it is not necessary that the

22 Swadeshi Cotton MiUs Ltd. v. State Industrial Tribunal, AIR 1961 SC 1381.
 satisfaction of those conditions must be recited in the order itself, unless the
statute requires it, though it is most desirable that it should be so, for in that
case the presumption that the conditions were satisfied would immediately
arise, and burden would be thrown on the person challenging the fact of
satisfaction to show that what is recited is not correct."

- The subordinate legislation thus does not carry the same degree of
immunity which is available with respect to a statute. It may be
questioned on any of the grounds on which plenary legislation is
questioned. In addition it may also be questioned on the ground that it
does not conform to the statute under which it is made.

- It may further be questioned on the ground that it is contrary to some

other statute. It can also be impugned on the ground of arbitrariness, if it
is so arbitrary that it could not be said to be in conformity with the
statute, or that it offends Article 14 of the Constitution. Nonetheless, all
the grounds that may be urged ordinarily cannot be available against a
statutory instrument e.g. notification.

- It can be questioned on the ground that it does not conform to

constitutional requirements, or that it offends some constitutional
limitation provision. Yet it cannot be questioned in the manner of an
administrative action on the ground of violation of principles of natural
justice or reasonableness23. When a quasi-legislative discretionary power
is required to be exercised in the public interest, the Court may require
the Government to exercise that power in a reasonable manner in
accordance with the statute, and in accord with the spirit of the
appropriate and relevant constitutional provision :

4. The Indian Express Newspapers Case:

FACTS - The Central Government gave, by issuing a notification, dated 15
July, 1977, total exemption from import duty in respect of news print. Four
years later this total exemption was cut short by another notification, dated 1

23 Indian Express (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 (542); Ram Chandra Kachardas
Porwal v. State of Maharashtra, AIR 1981 SC 1127; Tulsipur Sugar Co. Ltd. v. Notified Area
Commissioner, AIR 1980 SC 88.
March, 1981; and a duty at the rate of 15% ad valorem was imposed on
imported newsprint for the year 19811982. Soon thereafter, one other
notification was issued in supersession of the earlier '81 notification on 28
February, 1982, and thereby, an auxiliary duty totalling Rs 825 per tonne of
newsprint was additionally imposed. The levy of this auxiliary duty on
newsprint was hiked further, already high price of newsprint. In consequence
the price of newspaper went up and circulation came down.

ALLEGATIONS - The petitioner Express Newspapers and others moved the

Supreme Court, by a petition challenging the notification on the ground of
infringement of press freedom. The contention was that the administrative
action notification was unconstitutional. It was submitted that the enormous
increase in the price of newsprint and inflationary conditions raised
production cost, and thereby, caused loss of capacity of the industry to
absorb the increased duty levied under the successive notifications. The
Government had not taken into consideration the capacity of the newspaper
industry to bear the duty load, and therefore, the levy was unreasonable. It
was urged that the duty was violative of the freedom to continue to run the
industry under Article 19(l)(g)/(6), and in particular, Article 19(l)(a)/(2) of the
constitution.
RESPONDENT - The respondent Government replied the petitioner's
contentions; and submitted that the levy of duty was necessitated by the need
for augmentation of revenues and in the public interest.

HELD - The Constitution Bench of the Court declared that the impugned
notifications were administrative law, even though all the grounds that might
be urged against an administrative order could not be available against them.
In all circumstances like one before it, the Court directed that the
Government at all material times should be conscious of the fact that it is
dealing with an activity protected by Article 19(l)(a) of the Constitution, which
was vital to our democratic existence. The discretion under the statute [the
Customs Act, 1962] was not unfettered; and could only be exercised under
reasonable restrictions clause of Art. 19(2). The Government must not be
guided by irrelevant considerations.

- A statutory instrument cannot also be invalidated for its wisdom or lack of

 the legislative policy. But when that policy is expressed in language of law
the same can be reviewed on ground of violation of any constitutional
provision.

Void for unconstitutionality.There is no general power of judicial review of

delegated legislation. The judicial review can be made on grounds on which it can
be undertaken in respect of statutes, namely,
a) want of legislative competence ; due to violation of distribution of powers
rule;
b) contravention of a clause of the Bill of Rights; and,
c) Infringement of other constitutional limitations e.g. restrictions in the
interests of inter-State trade, commerce and intercourse.

- What the Legislature cannot do, it cannot authorise its delegate to do. It
can delegate the legislative power only in respect of a matter which falls
within its legislative competence. If an Act is ultra vires its power, the rules
framed there under must also be deemed ultra vires without a separate
review for them. But, if a law passes the test of constitutionality the
statutory order or other subordinate legislation passed thereunder, should
be reviewed. It is possible that the latter is unconstitutional.24

- The rules, regulations, orders, notifications are laws covered by the

definitional clause of Article 13(3) (a), and therefore, must be void, if they
contravene any provision of Part III the Fundamental Rights Chapter
(the Bill of rights)25. The fetters upon the legislative power must fetter the
power of the rule-making. The condition of valid rule-making is non-
contravention of Clause (2) of Article 13. The guarantees of procedure
established by law, and curtailment of freedoms : speech and expression,
assembly, association, movement, and trade and profession, except by
laws saved under reasonable restrictions clauses of Article 19(2) - (6), and
others are not any the less weak in respect of delegated legislation than in
relation to the statutory law.

24 Bennett Coleman Co. Ltd. v. Union of India, A.I.R. 1973 S.C. 106; Dwarka Parsad Laxminarain v.
State of U.P., A.I.R. 1954 S.C. 224.
25 Indian F,xpress Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 (544); Narendra
Kumar v. Union of India, A.I.R. 1960 S.C. 430; Hamam Singhv. Regional Trt Authority, A.I.R. 1954
S.C. 190; Dwarka Prasad Laxmi Narain v. State of U.P., A.I.R. 1954 S.C. 224
 - The rules, regulations, orders or notifications can be reviewed rigorously
under the various clauses of the Bill of Rights in the same manner as in
relation to any enacted law, nay, perhaps more vigorously The Indian
Express Case [supra pp. 294, 297-298].

Other grounds of reviewThere is, however, no general power of judicial

review of delegated legislation on grounds of reasonableness substantive
or procedural. The statutory rules cannot be invalidated on a plea of
unreasonableness in the manner of the bye-laws of a local authority :

5. The Mulchand's Case26

FACTS - In exercise of the rule-making power in respect of the prescription of the

mode of appointing an arbitrator and procedure of arbitration proceedings under
the Cooperative Societies Act, the Government of Bombay framed a rule providing,
thereby, that no party would be represented by a legal practitioner. The petitioner
who was a member of a cooperative bank, and had a dispute involving a large sum
asked for a better representation through a lawyer. The request having been
rejected by the arbitrator, he objected to the unreasonableness of the rule. The
objection was held unsound.

HELD - The Bombay High Court held that a provision for not to be heard at all
might violate a substantial right, but the right to be represented through a lawyer
was a matter of procedure. The denial of this latter right could not be objected to in
the absence of a statutory right in this respect.

SAVING CLAUSES :
The challenge at the second level on the ground of an improper exercise of the
rule-making power is made relatively difficult, if not impossible by declaring that
the rules when made have the effect "as if enacted in the Act." The effect of this
attempt at immunity from judicial review of the rules declared to have such effect
has occasionally been considered. The Income-tax, Act, 1922, declared in Section
59(5) as under :

"Rules framed under this section shall be published in the Official Gazette, and
shall thereupon have the effect as if enacted in this Act."

26 Mulchandv.Mukand, A.I.R. 1952Bom. 296: See also K.J. Thomas v. Commissioner of Income-tax!, A.I.R.
1968 Ker. 6.
 - The Supreme Court construed this clause in the Ravulu Subbarao's
Case27 28, following the Lockwood's decision29 of the British House of
Lords. It held that Rule 2 of the Income-tax Rules could not be attacked as
being inconsistent with the provisions of the Act, or as being void for
having been made in exercise of a power under excessive delegation.

- The challenge on ground of vires could not be made. It was said that the
words "as if enacted in the Act" equated the rule with a statutory
provision. It could be presumed that the Legislature ratified it, and it
became part of the statute. On another occasion in the Karmithravi Tea
Estates Case206 the effect of Rule 24 of the Income-tax Rules was
examined. The Rule prescribed that in the case of a tea company 60%, of
its income would be deemed agricultural income, and, for that matter,
excluded from the total income taxable under the Income-tax Act. The
Court held that the proportion so prescribed should be taken to be
prescribed by the Act for purposes of definition of agricultural income
under Article 366(1) of the Constitution/Section 2(1) Income-tax Act,
1922. Notwithstanding this relative immunity the construction based on
the Lockwoods decision cannot be stretched to its illogical limits. Indeed
the authority of the English case is doubted, and the rigor of the "as if

28 Ravulu Subba Rao v. Commissioner of Income-tax, A.I.R. 1956 S.C. 604-An application for
registration of a firm was rejected by the Income-tax Officer on the ground that it was not
signed by all the partners themselves, as one of them had gone on a piligrimage and before
leaving had authorised another partner to sign it on his behalf under a power of attorney; and
the authorised partner had signed for himself and on behalf of the absentee partner. The order
of rejection was based on R. 2 of the Income-tax Rules which required that the application
should be signed by the partners personally. The Court held that the rule had to be complied
with, and any inquiry into its vires was not possible.

29 Institute of Patent Agent v. Lockwoods, 1894 S.C. 347 Under the Patents, Designs Trade Mark
Act the Board of Trade was empowered to pass such general rules as it thought expedient for
the purposes of the Act. Such rules were "subject......as hereinafter prescribed," to be of the
same effect as if they were contained in the Act, and were required to be judicially noticed. The
Board of Trade made certain rules for registration of patent agents which were, a required under
the clause "subject as hereinafter prescribed to be laid before Parliament. The rules prescribed
that all registered patent agents would pay an annual subscription, and prescribed a penalty for
any one who called himself a patent agent but was not registered or had refused to pay the
subscription and also for the removal of his name from the register. In an action for a
declaration and injunction on the grounds that the rules were ultra vires the statute, the House
of Lords held that the rules should be deemed to have been enacted in the Act. This precluded
any inquiry into their vires."
 enacted" clause is already softened in the Yaffes case in England. In
relation to a "scheme" declared to be something "as if enacted in this Act"
the House of Lords observed that it was not -per se embodied in the Act. If
found inconsistent with the statutory provision, it was void ab initio
having been framed without authority. Closely following this weakening of
the Lockwood's authority, it has now been held in this country that a rule
declared to have the effect "as if enacted in the Act" is always open to the
challenge on the ground that it is unauthorised.30

- The clause does not preclude judicial review on other grounds. The rules
protected by this clause cannot be attacked only on the ground of
statutory excessive delegation. They can be challenged as being ultra
vires the statute, and on such other grounds on which a legislation can
generally be invalidated. It is given its fullest scope in Section 2(4) of the
English Emergency Act, 1920. It is provided therein that the regulations
framed under the Act should be taken to be free from the requirements of
the Statutory Instruments Act, 1946. The provision is as follows :

'The regulations so made shall have effect as if enacted in this Act, but
may be added to, altered, or removed by resolutions of both Houses of
Parliament, or regulations made in like manner, and subject to the
like provision : as the original regulations, and regulations made
under this section shall not be deemed to be statutory rules"

- Often specific provisions are enacted prohibiting raising of any issue

relating to the validity of the statutory rules and orders. This sort of
prohibition can seldom be presumed, and can be justified only on the
basis of a specifie statutory provision and the special and exceptional
circumstances of an emergency legislation, or on the ground of state
necessity. An illustration of such a saving clause was contained of the
Defence of India Act, 1962:

"No order made in exercise of any power conferred by, or under this Act
shall be called in question in any court."

30 Stateof Kerala v. K.G. Abdin, AIR 1965SC Itrulel4A framed under the Madras General Sales
Tax Act, 1939; Chief Commissioner v.R.S.Dani, A.I.R. 1957 S.C. 304.
 STATUTORY RULES, IF BINDING

- Delegated legislation is not executive instruction : and is 'law' passed

on authority of the Legislature. It derives sanction from the legislative
power vested in the Legislature. When framed properly, it is "law" for
purposes of Article 13(2)/(3)(a), and Articles 302, 303 and 30431. It
binds the administration; and an administrative authority having
framed the rules cannot refuse to follow them, or modify them for
their application to any given case32.

- Mandamus can be issued for enforcement, or their observance. The

framing of the rules for prescribing the procedure for exercise of an
executive power ousts the discretion to follow any ad hoc procedure;
and the Government should not act, except in accordance with the
procedure prescribed by such rules.

- For instance, if the rules prescribe the manner of a settlement of

fisheries after auction by the Government conducted by the
commissioner and on submission of a report by him containing his
recommendation, the Government cannot dispense with the auction
procedure and the commissioner's recommendation, and settle a
fishery by order.33

31 Chinla Lingam v. Government of India, A.I.R. 1971 SC 474 (476); Ouruswami v. State of
Mysore, A.I.R. 1954 S.C. 592.
32 Chinta Lingam v. Government of India, A.I.R. 1971 S.C. 474. v. State of Assam v.
Keshab,(l953) S.C.R.865.
33 State of Assam v. Keshab, (1953) S.C.R. 865.