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DEPARTMENT OF LAW

TRINITY INSTITUTE OF PROFESSIONAL STUDIES

Subject: Administrative Law–I

Subject code: LLB 208

Assignment TOPIC – Judicial control mechanism of delegated legislation

SUBMITTED TO: SUBMITTED BY:

Ms. Aishwarya Sharma Labhya Sharma

Assistant Professor, TIPS BALLB 2021-2026 (Sem-4)

(Enrollment no. – 017206038

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Index

Introduction………………………………………………………………………………… 3
Judicial Control Over Delegated Legislation………………………………………………..4
Grounds on which Judiciary can control the delegated legislation………………………….8
Conclusion………………………………………………………………………………….10
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Introduction

Delegated legislation is typically a sort of law created by the executive authority pursuant to the
authority granted to them by the primary authority in order to execute, implement, and administer
the requirements of the primary authority. It is possible to say that it is any law that is made by a
body that has access to parliamentary authority. Administrative law also refers to it as secondary
legislation. It gives the bodies below the legislature the authority to enact laws in accordance with
the conditions. Any person or authority may make legislation with the complete consent of
Parliament through an act of that body. An act of parliament sets the framework for a certain law,
which typically outlines the reason it was formed. The main goal of this is to ensure that any
legislation created by such delegation adheres to the goals specified in the act. Delegation of
authority refers to the transmission of legislative authority from a higher to a lower authority.
Delegated legislation is when the legislature grants the executive or administration the authority
to enact specific laws. There are primarily three different types of control mechanisms under
delegated legislation:

Modes of Controlling Delegated Legislation

Judicial Control
Procedural Control Parliamentary Control
1. Doctrine of Ultravires

2.Use of Prerogative Writs

In India, the delegated laws may be challenged in court for being unconstitutional, exorbitant, and
arbitrarily applied. The Judiciary can control it on two different bases: first, it must be a case of
substantive ultra vires, and second, it must be a case of procedural ultra vires. A law made by the
executive must not be ultra vires the parent act from which it derived its power to make laws or be
deemed inconsistent with the constitution in order for the court to declare it void and null. The
Supreme Court and the High Court in India have been given the authority to review the delegated
laws, and they actively participate in managing the delegated legislation.
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Judicial Control Over Delegated Legislation

Delegated legislation is not outside the purview of judicial review, and courts are generally
permitted to rule on the legality of delegated legislation in almost all nations. Despite the existence
of legislative control, it is acknowledged that judicial oversight over delegated legislation is a
crucial type of control. The primary rationale behind judicial review is the courts' constitutional
duty to uphold the rule of law. The primary duty of the judiciary in a state governed by the
constitution is to uphold the constitutionality of the laws passed by Parliament and ensure that any
delegated legislation passed as a result of the parent statute and the constitution is constitutionally
permissible. Since the courts have the authority to invalidate a legislation if it violates the parent
statute or the Constitution, judicial control is thought to be a more effective type of control.

Delegated legislation in India may be invalid for 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.

Judicial control has been the most notable controlling measure in the control mechanism. Two
standards are used by the judiciary to exercise its control over delegated legislation:

i. substantive ultra vires, and

ii. 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'.1It has been rightly described

1
Basu Administrative Law, 1984, p. 12.
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as 'the central principle' and 'foundation of large part of administrative law'.2 An act which is done
in excess of power is ultra vires.

Procedural ultra vires refers to the act of enacting subordinate legislation without adhering to the
procedural rules outlined in the Parent Act or by the General Law. Delegated legislation may or
may not be revoked in cases of procedural ultra vires, depending on whether the procedure is
deemed to be required or advisory. Applying the notion of ultra vires in a variety of situations
allows judges to exert their control over delegated legislation. The Enabling Act is
unconstitutional, for one. The court would deem the Act or its provisions, as the case may be, ultra
vires if the enabling Act or certain of its provisions, under which delegated legislation is granted,
violate the Constitution. The following three circumstances may result in an Act being deemed
unconstitutional:

(A) A statute is considered extra vires if it disobeys a constitutional clause. If a law violates
the Constitution on any of the grounds listed above, it has no legal power and is
unenforceable. There is now consensus that delegation is only permitted up to a certain
point. The restriction is that it is not possible to transfer the core legislative power, which
consists in selecting the legislative policy and formally implementing it as a binding code
of behavior. Therefore, the Legislature is unable to assign its duties of formulating
legislative policy to a third party. Therefore, a statute may be contested on the grounds that
it exceeded permitted bounds while granting power delegation.
For instance, Section 3(d) of the Drugs and Magic Remedies (Objectionable
Advertisement) Act was ruled to be outside of bounds in Hamdard Dawakhana v. Union
of India3. Due to the fact that the other parts were upheld as valid legal precedent, the
"whole Act" was not declared invalid. The Court concluded that the wording employed in
Section 3(d) do not provide any specific standards or guidelines and give the Executive
unrestrained and uncanalized discretion. The limits of an administrative authority's scope
of authority must be clearly defined. Delegation shouldn't be so vague that it amounts to a
legislative function being abandoned.

2
Wade, Administrative Law, 1988, p. 39.

3
AIR 1960 SC 554
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(B) The second kind of limitation on the Legislature is referred to as an express limitation.
This means that no Legislature has the authority to deviate from the power-division
structure set forth in the Constitution. The State Legislature and the Parliament each have
a portion of the legislative authority. The Constitution is very clear about the scope of their
authority. Regarding the topics listed in the Union List and the Concurrent List, the Indian
Parliament has the authority to enact laws for the entire country of India or any individual
state. The Union is the rightful owner of the remaining powers. An Act of Parliament that
violates a subject listed in the State List is void. A State Legislature may enact laws
pertaining to the State list within the authority of Article 245 of the Constitution.
Therefore, any provision of delegated legislation contained in an Act that violates the
constitutional framework for the division of legislative authority would be in violation of
the law. An Act of Parliament that violates a subject listed in the State List is void. A State
Legislature may enact laws pertaining to the State list within the authority of Article 245
of the Constitution. Therefore, any provision of delegated legislation contained in an Act
that violates the constitutional framework for the division of legislative authority would
be in violation of the law.
(C) The third circumstance that renders an Act invalid is where the Legislature has the
authority but is subject to limitations that it disregards. In Chintaman Rao v. State of M.P.4,
the C.P. Regulation of Manufacturer of Biris Act, 1948, empowered a Deputy
Commissioner to set the apicultural seasons and to forbid biri manufacturing in the notified
villages during the season in order to ensure sufficient agricultural labour in biri-making
areas. The Deputy Commissioner prohibited anyone from producing the biri by a
notification. According to the Supreme Court, the Act's provision allowing the imposition
of a complete ban on those engaged in the manufacturing of biris during agricultural
seasons interfered with private business and violated Article 19(l)(g) of the Constitution;
as a result, the notification made pursuant to the Act was null and void.

2. Delegated Legislation Violating the Constitution

When the delegated legislation contradicts the Constitution's terms or any of the fundamental rights
guaranteed by it, the second method of judicial review is applicable. This style of government is

4
AIR 1951 SC 118
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regarded very seriously in all nations with written constitutions, yet neither a basic law nor a
written constitution exist in the United Kingdom, where legislative actions must abide by them.
As a result, only the restrictions set forth in the legislative grant itself may be read into a gift
granted by the British Parliament. If the Parliament grants the executive the necessary authority,
the executive could change or even repeal a Parliamentary Act by delegated legislation.

A well-known instance of subordinate legislation that violated the Constitution and was therefore
ultra vires is M/s. Dwarka Pd. V. State of U.P.5 because it allowed the State Controller unrestrained
authority to make exceptions and because there was no check on him and no way to challenge his
actions, clause 3(1) of the U.P. Coal Control Order, 1953, was deemed extra vires in this instance.
The Court determined that it violates clause (6) of Article 19(1)(g) and cannot be justified as a
reasonable restriction.

3. The Subordinate Legislation Being Ultra Vires the Delegating Act

Delegated legislative authority must always be used within the parameters of the statute's provision
for rulemaking. Recently, the Supreme Court ruled in Kerala State Electricity Board V. Indian
Aluminum Co.6 that, despite being placed on the table of the State Legislature or the House of
Parliament and being subject to any modifications, annulments, or amendments they may make,
subordinate legislation cannot be said to be valid unless it falls under the statute's provision for
rule-making.

5
AIR 1954 SC 224
6
AIR 1976 SC 1031
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Grounds on which Judiciary can control the delegated legislation

Various circumstances in which a subordinate legislation can be declared ultra vires under this
head are:

1. When the Parent Act is ultra vires the Constitution

In this instance, it is noted that the Parent Act is void and unlawful if it contravenes the
Constitution's requirements. In the case of Chintaman Rao v. State of M.P.7, it was
determined that the order passed by the District Collector in violation of the fundamental
right guaranteed under Article 19(1)(g) of the Indian Constitution, which talks about
freedom of trade and profession, which has been guaranteed to all citizens of India, is ultra
vires. In this case, Beedi manufacturing was prohibited. In some circumstances, the Act's
provisions may be found to be unconstitutional on the grounds of undue delegation, but
this does not necessarily imply that the entire Act is unlawful.
2. Delegated Legislation not authorized by the enabling act:
When there are too many authorities, the subordinate laws are usually nullified. R. v.
Minister of Health, Ex Parte Davi,8 is the case at hand. If the Minister's plan violates the
Housing Act of 1925, the enabling act, Lord Hewart, C.J. granted a prohibition to curtail
the Minister's authority. By establishing the boundaries of the law-making power, the court
has frequently used effective reasoning to ensure that there is proper delegation of authority
and that the power does not exceed the extent of enabling authority by the delegated Act.
3. Delegated Legislation is Ultra Vires the Constitution:
The Parent Act is valid in some circumstances and is permitted under the Constitution.
The Parent Act's delegated legislation, however, might violate the Constitution.
The U.P. Coal Control Order, issued by the government under Section 3 of the Essential
Supplies (Temporary Powers) Act, 1946, was found to be ultra vires the Constitution in
Dwaraka Prasad v. State of U.P.9 because it violated Art. 19(1)(g), even though the Parent
Act was intra vires. The Supreme Court ruled that Clause 3(2) (b), which stated that the

7
AIR 1951 SC 118
8
[1931] UKHL J0323-2
9
1954 AIR 224
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State Coal Controller could exempt anyone from the license requirement for coal business
if he saw fit, is invalid because it gives the executive arbitrary and unguided powers in the
matter of exempting from licenses, which is in violation of Art. 19(1)(g).
4. Delegated Legislation is Ultra vires the Parent Act:
Delegated legislation's legality may be contested on the grounds that it violates the Parent
Act. The Uttar Pradesh Panchayat Raj Rule 87, which was created under the Parent Act
(U.P. Panchayat Act, 1947), was deemed to be in violation of the Parent Act, it was noted
in the case of Ram Prasad v. State of U.P.10
5. Delegated Legislation Ultra Vires any General Law/ Rule of Law:
The Delegated Legislation's legality may be contested on the grounds that it violates
general law. It occurs when the delegated makes an existing law unconstitutional and an
unconstitutional act legal.
11
In A.V. Nachane v. Union of India, it was determined that the rules the Union
Government created regarding bonuses for Class-III and Class-IV employees were ultra
vires since they superseded the Bonus Settlement 1974 provisions.
6. Unreasonableness:
In India, courts do not consider whether a statutory regulation is reasonable. In Mulchand
v. Mukand12, the court was urged to rule that Rule 36, which was created under the Bombay
Co-operative Societies Act, was illegal because it was irrational. The court dismissed the
argument, noting that while a statutory regulation cannot be challenged on the grounds of
being illogical, a bye-law can be.
7. Mala fide:
Mala fide, in its simplest form, refers to poor faith or an ulterior motivation. In A.K. Ray
v. India, 13the Supreme Court rejected the defence that the government acted dishonestly
by failing to implement certain 44th Amendment provisions. Mala fide is quite challenging
to demonstrate in court.

10
AIR 1957 All 411
11
AIR 1982 SC 1126
12
AIR 1952 Bom 296
13
AIR 1982 SC 710
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Hence, the malafide for challenging a delegated legislation is resorted to in rate cases where
strong proof of bad faith is available. The norm that prohibits inquiries into the sincerity of
a legislature is also applicable to all subordinate legislative bodies in the UK and the USA.
8. Excessive Delegation:
In India, the courts only occasionally invalidate the delegation of the authority to enact
laws on the grounds that it was excessive.
9. Sub- delegation:
A common and fundamental principle of agency law states that a delegate cannot reassign
their authority, but in some circumstances this rule is not applied to nations with written
constitutions. Unless there is an express or inferred provision to that effect, the notion of
sub delegation is vulnerable to criticism and is not generally accepted. As a result, the
legality of an act performed under sub-delegation may be questioned.
10. Non-compliance with court order:
If it is determined that the government is attempting to circumvent and resist the Supreme
Court's directive, the court has the authority to invalidate that specific conduct.
11. Non-application of Mind:
If it is determined that the delegate did not use their mind when allocating the appropriate
powers to the pertinent circumstances and facts while making decisions, the judiciary may
also invalidate the delegated legislation.

Conclusion

In general, judicial review of delegated legislation serves more as a symbolic check mechanism
than as one with significant practical effect. Legislation that grants authority must not do so in
two broad and generalised terms in order for judicial control to be more effective. In such a
situation, the Court may find it very challenging to uphold a rule as beyond the authority granted.
This is what the theory of excessive delegation aims to achieve. If delegated legislation exceeds
the fundamental principles of the Parent Act established by the legislature, it will be ultra vires.