CENTRAL UNIVERSITY OF SOUTH

BIHAR

PROJECT ON ADMINISTRATIVE LAW

JUDICIAL CONTROL OF DELEGATED

LEGISLATION

Submitted To: Submitted By:

Dr. Pawan Kumar Mishra Hemu Gupta

Associate Professor B. A. LL. B (H)

School of Law and Governance CUB1413125021

Central University of South Bihar 6th Semester

TABLE OF CONTENTS Page No.

Introduction 03

Delegation Implies the Power to Withdraw Delegation 04

Delegated Legislation—Executive Legislation 06

Judicial Control 08

The enabling Act or delegating statute being unconstitutional 09

The subordinate legislation violating the Constitution 10

The subordinate legislation being ultra vires the delegating Act. 13

Malafide 16

Unreasonableness 16

Conclusion 18

Bibliography 19
 DELEGATED LEGISLATION

Legislative Power of Administration—Delegated Legislation

Legislative power of the Administration means the power given to the administrative authority by the
Legislature to make rules, regulations, like provisions on certain matters. It may be defined as the law-
making power of the Executive or administrative authority. It is briefly known as "delegated legislation".
It has also been described as "outsourcing of law-making power".

Halsbnry's Law of England,1 explains that when an instrument of a legislative nature is made by
authority other than the Legislature, it is called delegated legislation. To put in simple terms delegated
legislation refers to all law-making, which takes place outside the Legislature. It is generally expressed
as rules, regulations, orders, by-laws, directions, scheme, notifications, etc.

Salmond puts delegated legislation2 as—

“that, which proceeds from any authority other than sovereign power and is therefore, dependent for its
continued existence and validity on some superior or supreme authority.”

The word 'delegate' is distinguished from the term 'delegation'. While delegate' is stated to mean a
person who is appointed, authorized, delegated or commissioned to act in the stead of another, the term
"delegation" means instructing another with a general power to act for the good of those who depute
him or it means transfer of authority by one person to another.3 In this sense, delegated legislation means
he conferring authority of law-making upon someone else,4 i.e., on administrative authorities.

Jain and Jain explained the expression in the following two senses5 :

 the exercise by a subordinate agency of the legislative power,delegated to it by the Legislature;

 the subsidiary rules themselves, which are made by the subordinate agency, in pursuance of the
power as mentioned in (a).

The expression is meant to have both the meanings. It may be stated to be "legislation by the authorities
other than the Legislature", which takes place outside the Legislature and is generally expressed as rule,
regulation, order by-law, direction, scheme, etc.6
The Supreme Court in Hamdard Dawakhana v. Union of India7explains :

... When the delegate is given power of making rules and regulations in order to fill in the details to carry
out and subserve the purposes of the legislation, the manner in which the requirements of the Statute are
to be met and the rights therein created to be enjoyed, it is an exercise of delegated legislation.

The Donoughmore Committee on Ministers' Powers, appointed inEngland in 1929, to consider, inter
alia, the powers exercised by die Ministersby way of "delegated legislation"8 also explained the expression
in the following two senses—

1. the exercise of law-making power by the executive under the authority delegated to it by the
Parliament; and
2. the rules, regulations, by-laws, etc., made by the executive in the exercise of the law making
power delegated to it by Parliament.

Stating in the above way, Jain & Jain say that as administrative lawyers, "we are more interested in the
'technique', rather than the actual rules made, and so the expression 'delegated legislation' is used here
primarily in the first sense", i.e., the exercise of legislative power by a subordinate agency.9

Delegation Implies the Power to Withdraw Delegation

It is said to be an accepted position in law that to 'delegate' to another is not to denude yourself.10
Wills, J. in Huth v. Clarke,11 observed :

In my opinion the word in its general sense and as generally used, does not imply or point, to a giving
up of authority, but rather the conferring of authority upon someone else.Thus, the person delegating
does not denude himself.12 'Delegation', therefore, implies also the power to withdraw delegation.

The Supreme Court in Roop Chand v. State of Punjab,13 explained :

In general, a delegation of power does not imply parting with authority. The delegating body will retain
not only power to revoke the grant, but also power to act concurrently on matters within the area of
delegated authority except in so far as it may already have become bound by an act of its delegate.
However when the delegate has exercise the power delegated ,there would be no scope for revision of
the order of the delegate by the delegator, such a situation, is also cannot review the order of the
delegate.14
 Distinguishing delegated legislation from the primary legislation, the Apex Court in U.P. Power
Corporation Ltd. v. Sant Steel & Alloys (P) Ltd.15, explained that so far as the primary legislation
was concerned, if the Act was passed by State Legislature and denied the benefit by the primary
legislation then no estoppel could be applied against that Act. But, so far as the case of delegated
legislation was concerned, where delegated authorities passed certain notification in exercise of his
delegated authority, there was no contemplation mentioned in the Act itself that it was capable of being
revoked at any time.Such acts could not be treated at par with the primary Act passed by the state
Legislature-

So ruled, the Court held that notification issued by the State Government under Electricity (Supply) Act,
1948, granting development rebate to new industrial units in hill areas, in the exercise of delegated
authority, could not 10 Revoked with retrospective effect and in such a case the principle of estoppel
would be attracted, because the notification had no flavour of Statute.

Subordinate Legislation

"Delegated legislation" is also called "Subordinate Legislation". Distinguishing between "Supreme

Legislation" and "Subordinate Legislation",
Salmond16 explains :
“Subordinate legislation is the legislation made by the authority other than the supreme authority in the
State, in the exercise of the power delegated to it, by the supreme authority.”
The subordinate legislation, says Salmond, "is dependent on some superior or supreme authority for its
continued existence and validity."

It thus follows that the authority which makes the legislation (subordinate legislation) in the exercise of
the legislative power delegated to it by the Legislature, is subordinate to the Legislature and the power of
the authority is limited by the Statute by which the delegation has been made.17 Thus, the rules, by- laws,
regulations, notifications, orders, etc., made by the Executive or other administrative authorities, in the
exercise of the powers conferred by the Legislature is known as subordinate legislation.
 .

Delegated Legislation
Delegated legislation may be distinguished from Executive Legislation. The former refers to the
legislation made by the authorities other than the Legislature to whom the Legislature delegates its
legislative power, while the latter stands for the legislative power conferred on the Executive by the
Constitution itself.

It thus follows that the legislation made by the Executive in the exercise of power confers on it expressly
by the Constitution, is not delegated legislation, but strictly speaking, it is original legislation.

For instance, Ordinances promulgated by the President under Article 123 or by the Governor under
Article 213 are expressly declared to have the same force and effect as a law enacted by the respective
Legislature.18

It may further be stated that while the source of delegated legislation is always an Act of the Legislature,
the source of the Executive Legislation is a provision of the Constitution. Further, that delegated
legislation to be constitutionally valid is to comply with the guidelines traced through judicial
pronouncements interpreting general principles in this respect while a piece of Executive Legislation is
required to be consistent with the provisions of the constitution.

JUDICIAL CONTROL
Under Indian Law.—The delegated legislation does not go beyond the reach of the judicial review of the
Supreme Court and of the High Courts. Judiciary exercises effective control over delegated legislation in
India. The validity of delegated legislation can be examined by the courts on several grounds. These
grounds are far wider than the grounds available in England. All laws made in this country shall have
to conform to the provisions of the Constitution including Chapter III thereof. Whenever a law made by
the Executive is found to be inconsistent with the Constitution or ultra vires the parent Act, from which
the law-making power has been derived, it is declared null and void by the Court. The power of examining
the validity of delegated legislation in India, has been vested in the Supreme Court and the High Courts.

In India the invalidity of delegated legislation may arise from any of the following reasons :
(1) The enabling Act or delegating statute being unconstitutional.
(2) The subordinate legislation violating the Constitution.
(3) The subordinate legislation being ultra vires the delegating Act.
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 :
 Substantive ultra vires; and
 Procedural 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'.19 It has been rightly described as 'the central principle' and
'foundation of large part of administrative law'.20 An act which is done in excess of power is 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. 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

The Enabling Act being Unconstitutional.—Where the enabling Act or some of its provisions,
under which delegated legislation is provided, are in contravention of the Constitution, the court
would declare the Act or its provisions, as the case may be, ultra vires.
The unconstitutionality of an Act may arise under the following three conditions:

(a) A law will be ultra vires if it violates a constitutional provision. Where the law is unconstitutional
on any of the grounds it is devoid of any effect and is unenforceable. It is now settled that there
is a limit beyond which delegation may not go. The limit is that essential legislative power, which
consists in the determination or choice of the legislative policy and formally enacting that policy
into a binding rule of conduct, cannot be delegated. The Legislature, thus, cannot delegate its
functions of laying down legislative policy to an outside authority. A law may, therefore, be
challenged on the ground that in making delegation of power it has transgressed the permissible
limits. Thus in re Delhi Laws Act case,21 the majority of the Judges held the exercise of delegated
law-making power invalid because the enabling Act exceeded the constitutional limits in
 permitting the Executive to repeal a law existing in the area. Sometimes certain provisions in
an Act may be unconstitutional because of excessive delegation, i.e., delegation without
prescribing any standards, limits or boundary. For instance, In Hamdard Dawakhana v. Union of
India,22 Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisement) Act was
declared ultra vires. The ‘whole Act was not struck down, because the other provisions were found
to be good law. The Court held that the words used in Section 3(d) do not lay down any certain
criteria or proper standard and surrender unguided and uncanalised power to the Executive. There
must be definite boundaries within which the powers of administrative authority are exercisable.
Delegation should not be so indefinite as to amount to any abdication of the legislative function.

(b) Secondly, the other type of limitation on the Legislature is known as express limitation.
According to this, no Legislature has the power to transgress the scheme of distribution of powers
embodied in the Constitution.
The Legislative powers are divided between the Parliament and the State Legislature. The ambit of
their power has been clearly spelt out in the Constitution. The Parliament of India can make laws for
the whole of India or any part thereof in respect of matters contained in the Union List and in the
Concurrent List. The residuary powers belong to the Union. An Act of Parliament which encroaches
upon a subject in the State List is invalid.
Article 245 of the Constitution empowers a State Legislature to make laws ^ith respect to State
list. Thus any provision of delegated legislation contained in an Act which is in violation of the
constitutional scheme of distribution of legislative powers would be ultra vires.

(c) The third condition leading to unconstitutionality of an Act is, where the Legislature has the power,
subjected to certain restrictions which are not observed by it. In Chintaman Rao v. State of
M.P.,23 the C.P. Regulation of Manufacturer of Biris Act, 1948, in order to ensure adequate
agricultural labour in biri-making areas empowered a Deputy Commissioner to fix the apicultural
seasons and to prohibit manufacture of biri in the notified villages during the season. By a
notification, the Deputy Commissioner forbade all persons from manufacturing the biri. The
Supreme Court held that the Act in permitting the imposition of a total prohibition upon those
carrying on business of manufacture of biris during the agricultural seasons interfered with private
business and violated Article 19(l)(g) of the Constitution, hence the notification under the Act was
void.
 Delegated Legislation Violating the Constitution
The second mode for judicial review comes into play where the delegated legislation violates the
provisions of the Constitution or any of the fundamental rights given thereunder. In all the countries
having written Constitution24 this mode of control is taken very seriously; whereas in the United
Kingdom there is no fundamental law or a written Constitution to which act of Legislature should
conform. Consequently a legislative grant made by the British Parliament cannot be read with any
limitations save those contained in the grant itself. If the Parliament authorizes the executive it could,
through delegated legislation, amend and even repeal an Act of Parliament itself.

In the countries where the powers of the Legislature are limited and defined by a written Constitution, the
position of subordinate legislation is different from what is found in United Kingdom. The tests which
have been applied to subordinate legislation by the courts in Australia, Canada, South Africa, U.S.A. and
India, each of which has a written Constitution, are mainly two—first, whether or not the enabling Act
or the enabling provision thereunder is valid. Second, whether or not subordinate legislation violates any
provision of the Constitution. The Supreme Court of India declared in Narendra Kumar v. Union of India25
every Act which confers power to make subordinate law does so with an implied condition that such
legislation shall be in accordance with the provisions of the Constitution. The well known case of M/s.
Dwarka Pd. v. State of U.P,26 is an instance of subordinate legislation being in conflict with Constitution
and hence was ultra vires. In this case clause 3(1) of U.P. Coal Control Order, 1953 was held ultra vires
because it gave unrestricted power to the State Controller to make exceptions and even if he acted
arbitrarily there was no check over him and no redress was available against it. The Court held that
it is violative of Article 19(1 )(g) and could not be justified as a reasonable restriction under clause (6) of
the same Article.
In Lakshmana v. State of M.P.,27 the Supreme Court struck down a notification issued under the M.P.
Grazing Rules made under the Forest Act, 1927. The rules prescribed excessive and prohibitive rates of
charges and a very limited period for grazing of 'foreign cattle'. Foreign cattle meant cattle of persons not
resident of M.P. Normally such cattle pass through several States. The Notification was held to be bad as
being violative of Articles 14, 19(l)(e), 19(l)(g) and Article 301 of the Constitution.
There is an important pronouncement of the court in which on ground of non-conformity with the
Constitutional provisions in Article 14 the delegated legislation has been struck down. In Nargesh Meerza
case,28 the regulation provided for the termination of services of an air-hostess if she ^dairies within first
four years of her service or on the first pregnancy. The Court found the first condition all right, i.e., no
marriage within first four years of her service but so far the second condition of pregnancy is concerned, it
was held to be "most unreasonable and arbitrary provisions of service regulation made by Air India which
has shaken the conscience of the court."

An air hostess can marry after four years of service and. if she then becomes pregnant, there is no
reason why pregnancy should stand in the way of her continuing the service. The Court observed that
the regulation amounts to compelling the air-hostesses not to have any children and thus it interferes
with and diverts the ordinary course of human nature. The court condemned the regulation in the
following words—
“It seems to us that the termination of the services of air-hostess under such circumstances is not only a
callous and cruel but an open insult to Indian womanhood—the most sacrosanct and cherished institution.
We are constrained to observe that such a course of action is extremely detestable and abhorrent to
the notions of a civilised society. Apart from being grossly unethical it smacks of a deep- rooted sense,
utter selfishness at the cost of all human values.”

The regulation was thus held to be not only "manifestly unreasonableand arbitrary" but also that it
"contains the quality of unfairness and exhibits naked despotism" and thus, held to be violative of
Article 14 of the Constitution.

The rules making reservation in promotions were quashed by the Supreme Court in J.B. Chopra
v. Union of India,29 on the ground of arbitrariness. In this case, the Central Hindi Directorate (Class III
and Class IV) Posts Recruitment Rules, 1961 were amended for reserving 100 per cent vacancies to
the post of superintendent to be filled by head clerks only and Senior Stenographers were debarred
from being considered for promotion to that post. The amendment of the rules was held to be wholly
arbitrary, irrational and mala fide and offending Articles 14 and 16.

In Deepak Sibal v. Punjab University30 the Court was asked to declare the Punjab University Rules
for admission to the evening classes of three years LL.B. Degree Course as unconstitutional on the
ground of violation of Article 14 of the Constitution. The impugned Rules restricted the admission to the
employees of government, semi government and similar institutions excluding the employees of private
 sectors and meritorious candidates. The Court held the Rules discriminatory. The Court ruled that the
Government or Semi-government employees as mentioned in the impugned Rules do not stand on a
different footing from the employees of private concerns, in so far as the question of admission to
evening classes is concerned.
The Supreme Court struck down a rule of the Gujarat Judicial Service which provided that a civil
judge who had crossed 45 years of age would not be considered for the post of Assistant Judge. It was
held to be void for being discriminatory.31
The Subordinate Legislation being Ultra Vires the Delegating Act

In all circumstances the power of delegated legislations should be exercised within the scope of the rule-
making power provided in the statute. The Supreme Court recently in Kerala State Electricity Board v.
Indian Aluminium Co.,32 laid down that notwithstanding the subordinate legislation being laid on the
Table of the House of Parliament or the State Legislature and being subject to such modification,
annulment or amendment as they may make, the subordinate legislation cannot be said to be valid
unless it is within the scope of the rule-making power provided in the statute.

Mala fide.—Delegated legislation may be declared ultra vires if the rule-making authority exercises its
power mala fide or acts with an ulterior motive. There is, however, no Indian case where a statutory rule
has been held invalid on the ground of mala fide exercise of the rule-making power. But if it is
established that the rule-making authority has acted with ulterior motive, the court would reject the
rule.40
In England the courts have taken the view that a rule could be challenged on the ground of mala
fides of the rule-making authority, or on the ground that it had no relation with the purpose for which
the rule-making power was delegated.41
In an early case, Lord Russel, C.J., observed : 'if (bye-laws) were manifestly unjust, if they disclosed
bad faith, if they involved such oppressive or gratuitous interference with the rights of those subject to
them as could find no justification in the minds of reasonable men, the Courts might well say, 'Parliament
never intended to give authority to make such rules; they- are unreasonable and ultra vires.42 The same
doctrine applies to other rules and regulations as well as to bye-laws.

Unreasonableness.—In English law there are cases in which bye-laws made by the local authorities
like the municipalities, county councils have been invalidated on the ground of unreasonableness. But the
rules framed by the government departments have not been held challengeable on the ground of
unreasonableness. It is considered as an exception because ministers are responsible to the Parliament; In
Australia, the courts do not recognise unreasonableness as a ground for challenging the validity of
 statutory regulation.
In the United States of America, unreasonableness of a statutory regulation would render it invalid
as it will be hit by the due process of law clause of the 5th and 14th Amendment of the Constitution. No
distinction is made in this respect between the executive legislation and the bye-laws.
In India the courts do not examine the reasonableness of a statutory rule. In Mulchand v. Mukand,43 the
court was asked to hold Rule 36 made under the Bombay Co-operative Societies Act invalid on the ground
that it was unreasonable. The court rejected the plea observing that a bye-law may be challenged on the
ground of its unreasonableness, a statutory rule cannot be so challenged

To the same effect are the observations of the Madras High Court in Subbarao v. I.T. Commissioner,44 "it
is well established that rules authorised to be made by an enactment are as effectual as if there were parts
of the Act itself, the question of their reasonableness, fairness or propriety not being a matter for the courts
to investigate."
But in view of some decisions of the Supreme Court after Maneka Gandhi v. Union of India,4 it can
be reasonably concluded that any administrative rule-making can be challenged on the ground of
unreasonableness within the purview of Article 14 of the Constitution. For example, in Air India v.
Nargesh Meerza,5 the Court quashed the service regulation, which provided for termination of services of
an air hostess on the first pregnancy. The Court held this regulation as most unreasonable and
arbitrary and therefore violative of Article 14.
Similarly the Court struck down Rules 151(i)(ii)(b) of the Bombay Civil Service Rules holding them
to be unreasonable and therefore void.6 The rules provided that a convicted government employee will be
paid Re. 1 as subsistence allowance even during the pendency of his appeal. Justice Chinnappa Reddy
remarked: 'the award of subsistence allowance at the rate of Re. one per month can only be characterized
as ludicrous. It is mockery to say that subsistence is awarded when the award is Re. one a month."

In one respect, however, the courts are bound to examine the reasonableness of statutory rules as well
as Acts of Legislatures. The Constitution has guaranteed certain freedoms to the citizen under Article 19.
The freedoms are not absolute, the Legislature is permitted to impose reasonable restrictions in respect of
these rights generally in the interest of the public. It is for the court to determine as to whether the
restrictions imposed on the freedom are reasonable
Conclusion

Generally speaking, any ground on which judicial review may be justified can logically be classified
as a branch of ultra vires doctrine45; here we have dealt with straight forward cases where ultra vires
was the solitary or principal justification for judicial review.

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
languages. 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.
Bibliography

1. Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed., Allahabad Law Agency,
Faridabad, 2011.
2. Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency, Allahabad, 2011.
3. Jain, M.P. & Jain, S.N.; Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur,
2007.
4. Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University Press, New
Delhi, 2006.
5. Kesari, U.P.D ; Administrative Law ,15th Edition Central Law Publications ,Allahabad,2005
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