Name: Mayukha S Parcha

Student ID: 20151126

Class & Section: BBA-LLB (A)
Control over delegated legislation- Judicial review (Procedural & Substantive ultra
vires)

The easiest place to start understanding the term ‘delegated legislation’ is to start with
the simple definition of the word ‘delegate’. Delegate is a verb which means to pass power
and in terms of legislation, it means to pass the power to make laws to someone else. We
understand that the Parliament is the supreme law making body and the reason as to why it is
supreme is because, through the process of democratic elections, we elect people to make
decisions on our behalf and those decisions are at the heart of the laws that the Parliament
makes. When Parliament passes that power to someone else, it is important for us to be aware
of it. We need to understand why the Parliament wishes to pass over this power and what are
the implications of passing over this power to someone else and whether this would
undermine the position of the Parliament as a supreme law making authority. There are an
awful lot of complex questions in the process of delegated legislation but in short, Parliament
wouldn’t be able to function if it didn’t delegate legislation.

Let’s have a look why: Most laws made by the Parliament are just legal framework.
Some laws are stand alone laws but a great number of laws in the Parliament are just
framework. We can use the analogy of a skeleton and compare it with a skeleton having flesh
put on the bones. If you imagine the large number of laws in the Parliament which are just
framework, this framework can be compared to the skeleton. They contain the background to
the laws i.e.; what does the Parliament want to achieve. What is missing from those laws is
the details. What happens in delegated legislation is that details are put on by someone other
than the Parliament. Parliament passes a law that is a framework for what it wants to achieve
and then it hands over the power to put the details of the law to someone else. That in essence
is what delegated legislation is and the reason for that is the concept of time. Parliamentary
time where Parliament passes laws is very limited and the government who is elected would
obviously want to use Parliamentary time to get their manifesto promises.

The Parliament would have to delegate for various reasons. For example, some laws
are specific to area and perhaps Parliament uses people who are local specialists to create
laws that are to do with specific geography. Technical matters like health or sanitation are
 Name: Mayukha S Parcha
Student ID: 20151126
Class & Section: BBA-LLB (A)

best completed by the specific department that is designed to deal with it. Thus, because of
the technical nature of a law, government would want the department to fill out the details.
Sometimes, in times of emergency or when a new situation arises, there is a requirement for a
new law to be passed. Speed is the requirement in such scenarios and Parliamentary process
would prove to be slow.

Parliament frequently delegates the detail filling part to someone else. In order for
them to do so, they need to create a parent/enabling act. According to the analogy explained
in the earlier part of this paper, the parent/enabling act would be the rough idea or outline of
what the Parliament wishes to achieve. This in other words is known as the primary
legislation. Parliament gives authority to others to make law and the law that is given
authority to make is known as secondary law/delegated legislation. So for instance, the parent
act could be the ministry of human resource development with a minister heading the
department. If it is an active Parliament that looks specifically at education, then the
Parliament makes the primary legislation and then passes it on to the minister or an expertise
to fill in the details.

As the discussion of this paper is the judicial control over delegated legislation, it is
important to understand why this control is essential. We know that over 3000 statutory
instruments are made each year together with the large number of by laws and orders. One
criticism of delegated legislation is that it is undemocratic. Individual ministers, councils,
private companies can make law without being elected to do so. Therefore, it is important to
exercise control so that this power is not abused. Controls and safeguards are required in
order to make sure that the legislative power conferred on the administration by the
legislature is not misused or applied arbitrarily. Legislature after delegating its powers has to
bear the responsibility to ensure that the person who possess that power (the delegate) does
not over-step the legitimate domain by exceeding or abusing the powers delegated.

Judicial review is the name given to the process of reviewing delegated legislation.
Judicial review proceedings consider whether the delegated legislation is lawful or not.
Judicial control has become an inevitable necessity to prevent executives acting as super-
 Name: Mayukha S Parcha
Student ID: 20151126
Class & Section: BBA-LLB (A)
legislatures or potential dictators. 1 Legislature cannot delegate their essential legislative
powers. Delegation should be confined to “non essentials” or subsidiary matters.

Judicial control is exercised by various principles laid down by the judiciary. In the
case of Narendra Kumar vs Union of India, it was held that if a law is ex-facie
unconstitutional, it cannot be legalized by a parent act which is constitutional. 2 In Municipal
Corporation of Greater Bombay vs Nagpal Printing Mills, it was held that rules framed that
violate the parent act are illegal. 3 In Hindustan Times vs. State of U.P, it was held that rules
framed violating any other statute or inconsistent with any other law are also illegal and
void.4 In the case of Chandra Bhan’s case; delegated legislation must be reasonable and not
suffer unreasonableness. Delegated legislation may also be struck down on the ground of
non-application on mind on the part of the delegate to the relevant facts in taking decisions.
5
Some other guiding principles are that delegated legislation must not be malafide and should
not be exercised against public standards or public morality.

An important question that is often raised is: who can bring proceedings and
challenge the validity of delegated legislation? Any individual can challenge the validity of
the delegated legislation, provided that he/she is affected by it. The claim is that the delegated
legislation is ‘ultra vires’ which is to say, that it is beyond the powers of the parent act. If
judicial review is successful, the delegated legislation is void. The doctrine of ultra vires has
two aspects: Substantive ultra vires and Procedural ultra vires.

Substantive ultra vires in simple terms, means that the content of the delegated
legislation is outside of the limits set by the parent act. The rule-making authority has no
substantive power under the empowering act to make these rules in question. The delegate
cannot make rules that the parent act prohibits/does not permit. The courts while exercising
judicial control have to assess whether the rule made by the delegate is ultra vires and
whether the parent statute authorises it. 6 For a rule to be valid, it should satisfy two
conditions: Firstly, it should be within the provisions of the statute under which it is being
1
C.K. Takwani ‘Lectures on Administrative Law’, 5th Edition 2012, P.172.
2
Narendra Kumar vs. Union of India, AIR 1969 SC P.430.
3
Municipal Corporation of Greater Bombay vs. Nagpal Printing Mills AIR 1988 SC P. 1009.
4
Hindustan Times vs. State of U.P. AIR 2003 SC P.250.
5
Vasu Dev Singh vs. Union of India, (2006) 12 SCC 753,801.
6
Yassin v. Town Area Committee, AIR 1952 SC 115, para 8.
 Name: Mayukha S Parcha
Student ID: 20151126
Class & Section: BBA-LLB (A)
made and secondly, it must also come within the scope and purview of the rule making power
of the authority who is making the rule. In the case of State of Karnataka vs. H.Ganesh
Kamath, it was held that the rule making power cannot include within its scope the power to
make a rule contrary to the provisions of the parent act. 7

Procedural ultra vires looks at how the delegated legislation was made and whether
the correct procedures in the parent act were followed. The courts need to assess whether the
rules were made according to the procedure provided in the parent act. The courts verify
whether the mandatory norms of procedure have been meticulously followed. If the
mandatory rules have not been observed, then the rules made shall be ultra vires. A decision
that renders delegated ultra vires makes it void and renders it incapable of having any effect
upon rights and duties of the concerned parties.

Judiciary should not over-step its legitimate sphere. Judicial review should essentially
only operate in cases where the delegated legislation exceeds its power or abuses it. Judicial
control should work in order to preserve the rule of law by making it accountable, legitimate
and confined to constitutional limits. The best way that judicial control can be strengthened is
if the Supreme Court frames rules under Article 141 of the Constitution, relating to the power
of courts to review in the sphere of delegated legislation so that uniform rules are followed by
all courts. Lastly, it is important to note that judicial review is an important aspect of the
basic structure doctrine that is so universally respected and it cannot be taken away even by
an amendment to the Constitution.

7
AIR 1983 SC 550, para 7 : (1983) 2 SCC 402