Delegated

Legislation
• ‘Delegation’ has been defined by Black’s Law Dictionary as an act
• (1) Of entrusting a person with the power,
• (2) Or empowering him to act on behalf of that person who has given
him that power,
• (3) Or to act as his agent or representative.
• Only a relatively small part of the total legislative output emanates
directly from the Legislature.
• The bulk of the legislation is promulgated by the Executive as a
delegate of the Legislature, and this is known as “delegated
legislation”.
• Salmond defines the expression ‘Delegated legislation’ 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.”
• Legislature enacts a law covering only the general principles and
policies relating to the subject matter in question,
• And confers rule-making power on the Government, or on some
other administrative agency.
• The delegation of legislative power is permissible only when the
legislative policy is adequately laid down and, the delegate is
empowered to carry out the policy within the guidelines laid down
by the legislature.
 Parent Statute Procedure
AKA
Enabling Act

Act of Parliament Local Authority / Delegated

Executive Legislation

• Giving power • Power to issue • An order issued

to local rules, which has
authority to regulations, characteristics of
make laws on by-laws, legislation, i.e.
an issue. notification, general
etc. applicability and
prospectivity.
• There is no statute enacted by the Legislature which does not delegate
some power of legislation to the Executive.
• In no democratic country does the Legislature monopolize the whole of
the legislative power;
• It shares this power with the Government and other administrative
agencies.
• The Legislature finds it convenient and necessary to delegate subsidiary
or ancillary powers to delegates for carrying out the policy laid down in
the Act.
• It is necessary to recognize that while Rules are required to implement a
legislation. Rules are not required to determine the existence of a
legislation.
• A delegatee must exercise its jurisdiction within the four corners of its
delegation and any action beyond the permissible limits has no legal
validity unless ratified by the delegator.
• The power of sub-delegatee is even more restricted.
• A delegatee cannot act in violation of a statute.
• A sub-delegatee cannot exercise any power which is not expressly
conferred by statutory provisions.
• The sub-delegatee must conform not only to the provisions of the
regulations and the Act under which been conferred but other
relevant Parliamentary Acts.
• For example if the power has been conferred under the Municipal
Corporation Act the sub-delegate has to act not just in accordance
with the Municipal Corporation Act but other statutes such as the
Rent Control Act or the Slum Clearance Act and any other relevant
statute.
Types of Delegated Legislation
• The term "delegated legislation" is used in two different senses:

• (a) the exercise by a subordinate agency of the legislative power

delegated to it by the Legislature, or

• (b) the subsidiary rules themselves which are made by the

subordinate agency in pursuance of the power as mentioned in (a).
• “Subordinate legislation”- This term conveys that the authority
making the legislation is subordinate to the Legislature.
• A subordinate legislation, when validly framed, becomes a part of the
principal Act.
• The technique of delegated legislation is very extensively used in
India.
• The Imports and Exports (Control) Act, 1947 is a small piece of
legislation containing eight sections.
• Section 3 authorizes the Central Government to prohibit or restrict
the import or export of goods of any specified description by order.
• Under this provision, the Central Government has built up a vast
mechanism of control over imports and exports with delegated
legislation promulgated under the statute.
• Under the Essential Commodities Act, 1955, the Central and State
Governments have promulgated a large number of orders and rules.
• The Act in itself contains only 16 sections, but under it the
Government carries on the whole operation of controlling and
regulating production, movement, supply, sale, and prices of a
number of commodities characterized as “essential commodities”.
• Delegated legislation (in the second sense mentioned before) is
designated by several names, such as, rules, regulations, bye-laws,
orders, etc.
• “Rules” are more commonly employed.
• The terms "regulations" and "bye-laws" are usually used to denote
the legislation framed by statutory corporations under delegated
legislative power.
• Generally, in respect of these corporations there are two levels of
delegated legislation:
• The Government itself has power to promulgate "rules" and,
accordingly, to distinguish the government-made "rules" from what
the corporation itself may make, a different terminology (regulations)
is used for the latter.
• The Legislature has wide powers of delegation.
• Delegation is valid only when it is confined by legislative policy and
guidelines.
• What is permitted by the concept of "delegation" is the delegation of
ancillary or subordinate legislative function or what is fictionally
called as "power to fill up the details".
• The judgments of the Supreme Court have laid down that the
legislature may, after laying down the legislative policy, confer
discretion or administrative or executive agency like the Central
Government to work out details within the framework of the
legislative policy laid down in the plenary enactment.
• The, power to supplement the existing law is not abdication of
essential legislative function.
• Power to make subordinate legislation is derived from the enabling
Act.
• It is fundamental principle of law that the delegate on whom such
power is conferred has to act within the limitations of the authority
conferred by the Act.
• Rules made on the matters permitted by the Act in order to
supplement the Act and not to supplant it, cannot be found to be in
violation of the Act.
• A delegate cannot override the Act either by exceeding the authority
or making provisions inconsistent with the Act.
• In Cellular Operators Association of India v. TRAI (AIR 2016 SC 2336)
the statute permitted the regulator to formulate regulations to
uphold the objectives of the Act or to control the quality of service.
• The regulator imposed a penalty on the service providers for dropping
of calls, even when the calls dropped were within the limits
determined as acceptable by technical experts.
• In the circumstances the regulations were found to be ultra vires.
• When a complete bar is created, the power to delegate must be
express, it cannot be implied.
• A legislative Act must be read with the regulations framed.
• A subordinate legislation, when validly framed, becomes a part of the
Act.
• The Government cannot, by way of subordinate legislation, nullify the
directions issued by the Supreme Court.
• Schedules, forms and appendix form part of the statutes and/or the
rules.
Growth of Delegated Legislation
• The function of the Indian State is to secure to its citizens objectives
set out in Part III and IV of the Indian Constitution.
• The desire to attain these objectives has resulted in intense state
activity.
• The Union and State Legislatures have neither the time nor the
expertise to deal with technical and situational intricacies.
• These Legislative Bodies cannot anticipate and provide for new
strange, unforeseen and unpredictable situations, arising out of
complexity of modern state.
• The modern State functions on a very wide front and manages the
day to day lives of the people to a very large extent.
• It directs a major part of the socio-economic development in the
country.
• These circumstances create the need for more and more law.
• Law has become an accepted vehicle of socio-economic change and
development in the democratic societies.
• The demand for law, which is practically insatiable, generates a great
pressure of work on the Legislature to makes laws.
• During the laissez faire, the Government discharged only limited
functions, the Legislature could enact all legislation that was needed.
• But neither the welfare State nor the regulatory state can cope by
itself with all the legislative work.
• The Legislature confines itself to laying down broad policies and
principles in the legislation it enacts,
• And leaves the task of shaping and formulating details to the
concerned administrative agency.
• If the Legislature attempts to enact comprehensive laws with all
necessary details its work-load would become so heavy that it may
not be able to enact the law on diverse subjects.
• It is essential to free the Legislature from the burden of formulating
details so that it can better devote its time to the consideration of the
essential principles and policies.
• If each piece of legislation were to be complete in all details, the legislation
would tend to become very cumbersome.
• Most of the present day activities of the State related to socio-economic
matters, legislations tends to be quite technical and complex.
• Consequently, expert knowledge is required to work out the details to fully
implement the policy.
• This can be done better by specialists in the Administration.
• There are also occasions when it is difficult to work out in advance and
include in a legislation all the detailed rules which are needed,
• The task of evolving the necessary details in this regard has to be left to the
Administration.
• At times, it is important to hold consultation with the affected interests
before all details of the policy are worked out, and the Administration is
required to do the same.
• The system of delegated legislation has become popular because it
has the advantages of flexibility, elasticity, and opportunity for
experimentation.
• The technique of delegated legislation provides for constant
adaptation to unknown future conditions, and experience.
• The formality of the Legislature enacting amending legislation from
time to time is not required.
• As Wade and Phillips point out, delegated legislation fulfils the need
of modern times “that something less cumbrous and more
expeditious than an Act of Parliament shall be available to amplify the
main provisions, to meet unforeseen of contingencies and to facilitate
adjustments that may be called for after the scheme has been put
into operation.”
• A modern society is faced with situations when a sudden need is felt
for legislative action.
• There are threats of aggression, breakdown of law and order, strikes,
etc. Such situations cannot be met adequately unless the executive
has standby powers.
• The Legislature cannot meet at short notice and turn out legislation
on the spur of the moment.
• It is expedient to pre-arm the Government with necessary powers so
as to enable it to take action at a moment's notice by promulgating
the needed rules and regulations.
• The Supreme Court of India in Agricultural Marketing Committee v
Shalimar Chemicals Works Ltd. (AIR 1997 SC 2502) has mentioned
the following reasons for delegating the power of legislation:
• (1) the area for which powers are given to make delegated legislation
may be technically complex, that it may not be possible and may even
be difficult to set out all the permutations in the statute.
• (2) The Executive may require to experiment and to find out how the
original legislation was operating and therefore to fill up all other
details.
• (3) It gives an advantage to the Executive, a Government with an
onerous Legislative time schedule may need, to pass skeleton
legislation with the details being provided by the making of rules and
regulations.
• In St. John's Teachers Training Institute v Regional Director, NCTE
[(2003) 3 SCC 321] the Supreme Court emphasised the need for
delegated legislation.
• It was held that delegated legislation is framed with care and
minuteness when the statutory authority after coming into force of
the Act, is in a better position to adapt the Act to special
circumstances.
• Delegated legislation permits utilisation of experience and
consultation with interests affected by practical operation of statutes.
• It was further held that main justification for delegated legislation is
that legislature being overburdened and the needs of modern society
being complex, it cannot possibly foresee every administrative
difficulty that may arise after statute has begun to operate. Delegated
legislation fills those needs.
Advantages of Delegated Legislation
• 1. It reduces the workload on parliament.
• Delegated legislation takes away part of the multiple responsibilities
of the legislature.
• The agencies to which legislative authority is delegated can legislate
on matters of detail relating to their areas of work and within the
limits set for them. The practice makes it possible for parliament to
work effectively by allowing ministries and departments to assist with
law-making.
• The obvious benefit is that delegated legislation increases the level of
efficiency in the work of parliament.
• 2. Parliament benefits from the expertise of civil servants.
• Delegated legislation allows the legislature to tap into the expert
knowledge and skills of civil servants.
• The art of government has become quite scientific and technical. Not
all MPs will have the requisite knowledge on all matters that come
before them.
• Delegated legislation allows specialized agencies to utilize the
expertise of highly qualified and experienced technocrats to
formulate rules that apply to their areas of authority and
competence.
• 3. Delegated legislation enhances flexibility in government.
• For example, during the normal process of law-making, parliament is
not always able to foresee certain contingencies that are likely to crop
up later. So these may not be adequately covered in the parent act.
• Delegated legislation gives room for a quick response to social,
political and economic changes that may occur in the future. In other
words, bye-laws are easily made to suit new situations as and when
they arise.
• 4. It promotes quick decision-making and saves time.
• Delegated legislation ensures that government is able to respond
quickly whenever there is an emergency. During a state of emergency,
for example, certain actions have to be taken quickly. These actions
are usually in excess of the normal powers of government.
• This is where delegated legislation becomes useful. In such cases, the
rules of delegated legislation may allow constitutional requirements
to be set aside. This will then enable the concerned ministries and
departments to act quickly in the best interest of the state.
• 5. Delegated legislation makes experimentation possible.
• The practice allows for experimentation. Whenever a pilot project is
carried out successfully in one district, another locality may adopt it
by using the same blueprint.
• On the other hand, if ever a new policy being implemented in a
limited number of local government areas fails to live up to
expectations, it can be abandoned at a minimal cost. This is because
the cost incurred would be lower than if it had been implemented on
a national scale from the beginning.
• 6. It promotes popular participation in government.
• Local governments and government ministries engage in wide-ranging
consultations during the process of delegated legislation. Traditional
rulers, interest groups and civil society organizations are some of the
stakeholders that are given the opportunity to make their input
during the making of rules and regulations that affect them.
• The practice, therefore, enhances participatory democracy.
Disadvantages of Delegated Legislation
• 1. It undermines the authority and sovereignty of parliament.
• With delegated legislation, parliament loses its constitutional power
as the sole law-making organ of government. There is always the
possibility that parliament might lose its significance in the face of a
steady erosion in its legislative authority. This can seriously
undermine the concept of the supremacy of parliament.
• 2. Delegated legislation violates the concept of separation of
powers.
• Secondly, the fact that actors in the executive branch of government
are able to make laws means that the executive is allowed to take on
too much power. The practice therefore, dilutes the practice of
separation of powers and all its benefits.
• 3. It is undemocratic.
• Delegated legislation is undemocratic because individuals and
institutions that perform the law-making function under delegated
legislation are not duly elected representatives of the people. Clearly,
the popular notion of no taxation without representation is
compromised under delegated legislation.
• 4. It is not compatible with the rule of law.
• Another major disadvantage of delegated legislation is that it flies in
the face of the fundamental principles of the rule of law. These are
legality, impartiality and liberty.
• Ministers may set up administrative tribunals to try offenders. These
tribunals are not part of the ordinary courts. For that matter, they
violate the principle of legality, a key principle of the rule of law.
• Actions of the executive tend to favour their political allies. People
who hold contrary views are often not treated fairly. This is in clear
violation of the principle of impartiality or equality before the law.
• During emergencies, the constitutional provisions that guarantee the
rights and freedoms of the ordinary citizen are sidestepped in the
interest of the common good. Thus, delegated legislation threatens
the principle of liberty or human rights.
• 5. It is not controlled effectively enough.
• The effective control of delegated legislation is the only way to
minimize its negative effects on democratic governance.
Unfortunately, however, it is almost impossible to sufficiently control
delegated legislation. Thus, this becomes one of the disadvantages of
delegated legislation.
• 6. Delegated legislation is prone to abuse.
• Both power-thirsty and power-drunk officials are known to grab
undue powers and exercise them as they wish – all in the name of
delegated legislation. This is how delegated legislation has opened
the doors to such negative practices as political victimization,
nepotism and outright corruption.
• 7. It can lead to dictatorship.
• There is always the danger that government officials who have tasted
some power via delegated legislation may gradually assume too many
discretionary powers.
• 8. Secrecy
• Delegated legislation is often not as declarative as legislature. The
executive may abuse the opaqueness existing in administration while
enacting delegated legislation.
Procedural Control over Delegated
Legislation
• Procedural control mechanism allows specific audit of rules by those
for whose consumption they are made. Procedural control
mechanism operates in following components:
• (1) Drafting.
• (2) Antenatal publicity.
• (3) Consultation.
• (4) Post-natal publicity.
• Drafting
• The drafting of delegated legislation by an expert draftsman who is, in
a position to advise whether the proposed rules and regulations are
intra vires is a valuable safeguard.
• In the absence of this safeguard, in India poorly drafted rules, in many
situations, create great hardship for the people by increasing avoid-
able litigation.
• The Committee on Subordinate Legislation in India recommended
that the language of rules should be simple and clear and not
complicated or ambiguous.
• In Daiichi Sankyo Co. Ltd. v. Jayaram Chigurupati (2010) 7 SCC 449,
the Supreme Court emphasised that “Object and Reason Clause”
must also be introduced in delegated legislation, as it would help in
proper interpretation of administrative rule-making.
• Antenatal publicity
• In India there is no law governing the procedure of administrative
rule-making, and the parent Act may or may not provide for procedural
requirement. However, in some cases the parent Acts have provided for
antenatal publicity.
• Section 15 of the Central Tea Board Act, 1949, Section 30(3) of the Chartered
Accountants Act, 1949 and Section 43 of the Co-operative Societies Act, 1912
are examples that, the rules must first be published in draft form to give an
opportunity to the people to have their say in the rule-making.
• Antenatal publicity required by the enabling Act attracts the application of
Section 23 of the General Clauses Act, 1897 which requires
• (1) that the rules be published in draft form in the Gazette;
• (2) that objections and suggestions be invited by a specific date mentioned
therein;
• (3) that those objections and suggestions be considered by the rule-making
authority.
• The procedure prescribed in the General Clauses Act, 1897 applies
only to rules, regulations and bye-laws, and the administrative
rule-making appearing under any other name is not governed by it.
• In America antenatal publicity is beneficial in practice because those
subject to administrative regulations tend to be members of trade or
business organisations which perform the routine task of scanning the
Federal Register and alert their members about the proposed
rule-making.
• In the US “lobbying” is an institution and vigorous efforts are made to
support the organisation's viewpoint before the administrative
agency.
• Keeping in view the utility of antenatal publicity, Section 4 of the
Federal Administrative Procedure Act, 1946 provides for the
publication of proposed rules in the Federal Register.
• The agency concerned must then afford an opportunity to the
interested persons to participate in the administrative rulemaking
through submission of written data, views or arguments, with or
without opportunity of being heard orally.
• The Act also provides an escape clause where this procedure can be
dispensed with in cases of its impracticability, or it being unnecessary
or contrary to public interest.
• In Britain, unlike in the US, the emphasis is on informal procedural
requirements.
• The original rules of antenatal publicity and prior consultation laid
down in the Rules Publication Act, 1893 have been repealed by the
Statutory Instruments Act, 1946 which now provides for publication
of rules.
• In England, the law contains no general requirement for antecedent
publicity or any right to hearing.
• However, in individual cases, Parliament may provide for antenatal
publicity and prior consultation.
• It does not mean that antenatal publicity and people's participation
are absent in England.
• In England these are provided as a matter of unavoidable
administrative necessity.
• It is almost unthinkable that the Minister of Health can run the
National Health Service through his rule-making power without
consulting the medical professionals.
• Consultation with affected persons
• This control mechanism makes administrative rule-making a democratic
process and, therefore, increases its acceptability and effectivity.
• In India there is no general law which provides for prior consultation with
affected persons before rules and regulations are framed by administrative
authorities.
• Therefore, the provision of prior consultation is sometimes provided in the
enabling Act itself.
• In Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849 it was held that
such a provision if contained in the enabling Act is considered as mandatory
and its violation is visited with the invalidity of rules.
• However, if the prior consultation has not been made mandatory by the
parent Act, failure to consult will not affect the validity of the rules.
• Prior consultation shall be considered mandatory when some
consequences are provided in the absence of such consultation.
• Section 16(5) of the Electricity (Supply) Act, 1948 makes provision for
consultation with the State Electricity Consultative Council before
raising tariffs.
• The Supreme Court in Hindustan Zinc Ltd. v. A.P. SEB (1991) 3 SCC
299 held that the failure to consult does not render the exercise of
power invalid because consultation with the council has not been
made mandatory, in the sense that no consequence is provided in the
absence of such consultation.
• In India, the provisions for prior consultation made in the enabling Act
may be grouped into five possible headings:
• (1) Official consultation with a named body- The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970 provides for prior
consultation with Reserve Bank of India before making rules under
the act.
• (2) Consultation with administrative boards- The Mines Act, 1901
sets up Administrative Boards to advise the government and
obligatory prior consultation with the boards before the Central
Government can make rules under the Act.
• (3) Consultation with a statutory board in charge of a particular
subject- Under the Tea Board Act, 1949, the Tea Board has been
constituted as a statutory body in charge of the whole subject of tea
cultivation, development, marketing, etc. The Act makes it obligatory
to consult this Board before the government can frame rules under
the Act.
• (4) Consultation with interested persons- Amendments to the Food
Adulteration Rules and standards for food items are similar for drugs
and cosmetics as well as rates of minimum wages call for
representations and suggestions from the general public by publishing
the draft rules in the Official Gazette.
• Similarly, under the Industrial Development and Regulation Act, 1951
representations from industry and the public are invited.
• (5) Preparation of rules by the affected interests- In order to
guarantee complete efficacy and acceptability, the Mines Act
empowers the owners of mines to draft rules themselves for the
safety and prevention of accidents in mines and submit the draft rules
to the inspector of mines. Such rules become operative on being
approved by the government.
• In England the Statutory Instruments Act, 1946 does not mandate
prior consultation.
• The Committee on Ministers' Powers in Britain was informed:
• “No Minister in his senses with the fear of Parliament before his eyes
would even think of making regulations without (where practicable)
giving the persons who will be affected thereby (or their
representatives) an opportunity of saying what they think about the
proposal.”
• In England, public participation is provided by another technique of
consulting statutory advisory agencies which are supposed to reflect
public opinion and express independent views.
• Therefore, the Tribunals and Inquiries Act, 1958 requires prior
consultation with the Council on Tribunals before procedural laws are
made for tribunals and enquiries.
• In the US, Section 4 of the Administrative Procedure Act, 1946
provides only for opportunity to submit data, views, or arguments.
• It does not provide for any oral hearing, adversary or auditive.
• However, it is not uncommon that in the US, the statutes themselves
provide for hearing over and above the minimum laid down in the
Administrative Procedure Act, 1946.
• Unless the statute provides otherwise, the hearing is always informal
resembling hearing before a legislative committee rather than before
a court.
• The consultative practices include correspondence, consultations,
conferences, gallup poll techniques, and public hearings, auditive or
adversary type.
• Besides these, the practice of consulting ad-visory committees is also
widely followed.
• For example, under the Fair Labour Standards Act, 1938, the wage
orders had to originate from the industry advisory committee
consisting of the employer, employee, and public representatives.
• Postnatal publicity
• The dictum that ignorance of law is no excuse is based on the justification
that laws are accessible to the public.
• In India, there is no general law prescribing the mode of publication of
rules; therefore, the practice of publication differs from statute to statute.
• In some cases the statute lays down that the rules must be published in the
Official Gazette, but in other cases the administrative authority is left free
to choose its own mode of publication.
• In such cases, publication is necessary in any “recognizable” or “customary”
manner.
• Where the parent statute prescribes a mode of publication, that mode
must be followed.
• Where the parent statute is silent, rules framed by the administrative
authority may prescribe the manner of publication, and such mode of may
be sufficient if reasonable.
• If the rules do not prescribe the mode of publication or if the rules
prescribe an unreasonable mode of publication, then the rules shall take
effect only when published the Official Gazette or some other reasonable
mode of publication.
• There may be rules and regulations which are concerned with a few
individuals or are confined to a small local area. In such cases publication by
other means may be sufficient.
• Thus, if a statutory provision requires publication of any notice but the
language of notice is not prescribed, it is reasonable to expect that the
language of the notice would be the local language and the mode of
publication will be a local newspaper.
• The Supreme Court in State of Orissa v. Sridhar Kumar AIR 1985 SC 1411
quashed the publication which had been made in a local newspaper but not
in the local language.
• R.S. Pathak J held that having regard to publication made in a local
newspaper, the publication must have been in the local language of the
area.
• In Raza Buland Sugar Co. Ltd. V Municipal Board, Rampur AIR 1965
SC 895 the SC held that the question whether the mode, manner, and
method of publication prescribed in a statute is mandatory or
directory cannot be answered with reference to any fixed formula.
• It would depend on the language of the statute, the purpose for
which the provision was made, the intention of the legislature,
inconvenience or injustice to persons resulting from whether the
provision is read one way or the other, relation of a particular
provision to other provisions dealing with the same subject and
other considerations which may arise on facts of a particular case.
• Non-compliance of mandatory rule-publishing would render the rules
invalid, and if the provision of publication was found to be directory,
its non-compliance would not affect the validity of the rules.
• In B.K. Srinivasa v State of Karnataka (1987) 1 SCC 658 it was held
that if the publication is vague because of which the persons for
whom the publication was intended could not properly avail the right
of representation, it is bad in law.
• The Supreme Court in Harla v. State of Rajasthan AIR 1951 SC 467
has held that a law cannot be enforced unless published.
• In this case during the minority of the then Maharaja of Jaipur, the
Council of Ministers was appointed by the Crown representative to
look after administration.
• The Council by a resolution enacted the Jaipur Opium Act, 1923 which
was never published in any form.
• One Harla was prosecuted for the contravention of this law because
he was in possession of opium in more quantity than permitted.
• The court held that the rules of natural justice demand that the laws
be published before they are enforced.
• This position was maintained by the Supreme Court in State of Kerala
v. P.J. Joseph AIR 1958 SC 296.
• In this case, the Government of Cochin authorised the Board of
Revenue to sanction extra quota of foreign liquor on payment of two
per cent commission.
• The court was of the view that this authorisation does not have the
force of law because the rule was never published.
• However, if the rules are not published but are acted upon by
authority and are binding on the authority, it will not be open to the
authority to contend that rules were not published.
• If the rules were required to be published, the authority cannot take
advantage of its failure to publish them.
• Unless the rule-making authority has laid down a date on which the
rules shall come into force, the rules generally come into force on the
date of publication.
• Administrative agency can give retrospectivity to their rules provided
the rules are not invalid on the ground of their retrospective
operation.
• Sometimes rule-making may be made subject to approval or
permission of the competent authority or the delegating authority.
• In such a condition, if the rule-making is subject to "approval", rules
can come into operation as soon as made and shall continue in
operation until disapproved.
• However, if the rule-making is subject to "permission", rules do not
come into operation unless permission is obtained.
• In England, Section 3 of the Statutory Instruments Act, 1946 provides
that the rules shall not come into force unless published.
• Sub-clause (2) of Section 3 further provides that in case of a
prosecution for the breach of any rule, it would be a good defence to
plead that the rules were not made known.
• Section 2(1) of the Act provides the mode of publication.
• It lays down that unless otherwise provided, the copies of statutory
instruments of general nature must be sent to the Queen's Printer to
be printed, numbered, and sold to the public.
• However, all instruments of delegated legislation are not brought
within the definition of "statutory instruments" and consequently,
such delegated legislation need not be published unless so required
by any other statutory provision.
• In the US, before the passage of the Federal Register Act, 1935, there was
no provision for the publication of administrative rules and regulations.
• However, Section 5(1) of the Federal Register Act, 1935 now provides that
all the rules which are required to be published must be published in the
Federal Register.
• Unless it is so published, it cannot be enforced against any person except
the one who has actual notice of it.
• These provisions have been further reinforced by the Administrative
Procedure Act, 1946.
• Section 4(c) defers effectivity of the rules by 30 days from the date of
publication so that everyone has an opportunity of knowing them, unless
the agency decides otherwise in public interest.
• After the publication of the rules in the Federal Register, the rules are
classified, indexed, and codified under the provisions of Section 311(a) of
the Federal Register Act, 1935.
Doctrine of Vice of Excessive Delegation
• Supreme Court has confirmed the principle that the Legislature can
delegate its legislative power subject to its laying down the policy.
• In Hamdard Dawakhana v Union of India AIR 1960 SC 554 the SC
held that the Indian Legislature cannot delegate unrestrained
uncanalised and unqualified legislative power on an administrative
body.
• The Legislature must declare the policy of the law, lay down legal
principles and provide standards for the guidance of the delegate to
promulgate delegated legislation, otherwise the law will be bad on
account of "excessive delegation".
• In case the Legislature fails to do so, the law made by it delegating,
legislative power would be invalid.
• Delegation is valid only when it is confined to legislative and
guidelines.
• It is equally well settled that a delegatee must exercise its jurisdiction
within the four corners of its delegation.
• It has been held in Sitaram Vishambhar Dayal v State of UP AIR 1972
SC 1168, whether a power delegated by the legislature to the
executive has exceeded the permissible limits in a given case depends
on its facts and circumstances.
• The question does not admit of any general rule.
• It depends upon the nature of power delegated and the purpose
intended to be achieved.
• In determining whether there is "excessive delegation", Courts
examine the breadth of the discretion conferred by an Act to
promulgate delegated legislation, and also examine the procedural
safeguards contained in the Act against misuse of power.
• For example, laying of the ruled before the Legislature, consultation
with the affected interests are seen to circumscribe the power of the
delegate.
• A completely unlimited blanket power where there is neither any
guidance to the delegate, nor any procedural safeguards against
improper exercise of power by the delegate, can be found to be
excessive delegation and declared invalid.
• H.R. Banthia v. Union of India AIR 1970 SC 1453
• Section 5(2)(b) of the Gold (Control) Act, 1968 empowered the Gold
Administrator, so far as it appeared to him to be necessary or expedient
for carrying out the purposes of the Act, to regulate the manufacture,
distribution, use, disposal, consumption, etc., of gold.
• The Supreme Court declared the provision invalid because it was very
wide and suffered from the vice of "excessive delegation".
• The Court also took into consideration the fact that under s. 114 of the
Act, power of delegated legislation was also conferred on the Central
Government.
• Contd.
• But while the Rules made by the Government were required to be
laid before each House of Parliament, there was no such obligation in
respect of the Rules made by the Administrator under s. 5(2)(b).
• The power of the Administrator was not subject to any procedural
safeguard while that of the Government was, and, thus, the power
conferred on the former was even broader than that conferred on the
Government.
• Delhi Laws Act Case 1951 AIR 332, 1951 SCR 747
• There were a few States, under the direct administration of the
Central Government, without having a Legislature of their own, Delhi
being one of these.
• Parliament had to legislate for these States.
• As it was very difficult for Parliament to find the necessary time to do
so in view of its other engagements, Parliament passed a law, the Part
C States (Laws) Act, 1950.
• The Act authorised the Central Government to extend to any Part C
State, with such restrictions and modifications as it thought fit, any
enactment in force in a Part A State.
• While doing so, the Government could repeal or amend any
corresponding law (other than a Central Law) which might be
operative at the time in the Part C State concerned.
• It was a very sweeping kind of delegation.
• The Government could extend to a Part C State any law made by a
State Legislature (and not by Parliament), at any time (not only laws
prevailing in 1950 but even those made subsequently), and even
modify the law before extension.
• And if there was already a law in force in the concerned Part C State
on the point, it could either be repeated or modified by the
Government when the law was being extended.
• The Supreme Court was called upon to adjudge the validity of this
abovementioned provision.
• Seven Judges participated in the decision and seven opinions were
delivered exhibiting a wide range of judicial views on the question of
limits subject to which the Legislature in India should be permitted to
delegate legislative power.
• Yet on two points there was a unity of outlook amongst all these
opinions.
• First, keeping the exigencies of the modern Government in view,
Parliament as well as State Legislatures in India need to delegate the
legislative power if they are to be able to face the multitudinous
problems facing the country, for it is neither practical nor feasible to
expect that each legislative body could turn out a complete and
comprehensive legislation on all subjects sought to be legislated
upon.
• Two, since the Legislatures derive their powers from the written
Constitution which creates them, they could not be allowed the same
freedom as the British Parliament in the matter of delegation, and
that some limits should be set on their capacity to delegate.
• The Judges, however, differed on the question as to what were to be
the permissible limits within which the Indian Legislature could
delegate its legislative power?
• One view propounded was that the Indian Legislature could delegate
its power to any extent subject to the limit that it did not efface itself,
or abdicate its powers, which meant that the Legislature should never
give up its control over the delegate;
• that it must not destroy its own legislative power; that it must retain
in its hands the ultimate control over the authority so as to be able to
withdraw the delegation whenever the delegate did something wrong
or foolish.
• The other view which approximated to the American approach, and
which is more restrictive than the first, was that the Legislature
should not delegate its essential legislative function which comprised
the formulation of policy and enacting it into a binding rule of
conduct.
• That means that the Legislature should lay down standards or policy
in the delegating Act and the delegate may be left with the power to
execute the policy.
• By a majority, the Court laid down, that the Legislature should not
delegate its essential legislative function which comprises the
formulation of policy and enacting it into a binding rule of conduct.
• The Supreme Court propounded the thesis in the instant case that the
Legislature is the creature of the Constitution,
• the Constitution-makers have placed their confidence in the collective
wisdom of the Legislature, and the Constitution has chosen to vest
legislative power in the elected representatives of the people.
• It is inevitable that the Legislature should itself discharge the essential
legislative function, viz., the Legislature should itself lay down
standards or policy in the delegating Act leaving Legislature.
• The specific provision involved in the instant case was held valid by a
majority of Judges subject to two riders:
• (1) that part of it was bad which authorised the Government to repeal
a law already in force in a Part C State;
• (2) the power to effect modifications in a State law in its application
to a Part C State envisaged only such modifications as did not change
the underlying policy of the law sought to be extended.
• The Delhi Laws Act case achieved two ends:
• (1) it legitimised delegation of legislative power by the Legislature to
administrative organs;
• (2) it imposed an outer limit on delegation by the Legislature: No
Indian Legislature can delegate unlimited legislative power to the
Administration.
• If delegation is too broad, the Courts can declare the same as
excessive and hence invalid.
• The power to legislate must be delegated after laying down essential
legislative policy.
• Delegation of essential legislative function is impermissible.
• It is essential for the legislature to declare its legislative policy which
can be gathered from the express words used in the statute or by
necessary implication, having regard to the attending circumstances.
• The Legislature cannot delegate its power to repeal the law or modify
its essential features.
• The question in the Delhi Laws Act case was again re-opened in Gwalior
Rayon Co. v Asst. Commr. Of Sales of Tax AIR 1974SC 1660 after a period of
twenty-four years since the doctrine was laid down in Delhi Laws Act case.
• Mathew J., opined that so long as Parliament retains the power to repeal
the delegating provision, it does not abdicate its legislative function and,
therefore, there should be no objection to delegation howsoever broad its
extent.
• The judge was of the view that due to this power of repeal, there should be
no need to lay down policy or standard in the statute.
• Mathew's, J., view would have resulted in dilution of the doctrine of
excessive delegation, and there would remain no semblance of restraint on
the Legislature in the matter of delegation.
• However, the majority of the judges on the Bench did not agree with Justice
Mathew.
• They reiterated the proposition that when a Legislature confers power
on an authority to make subordinate legislation, it must lay down
policy, principle or standard for the guidance of the authority
concerned.
• It would have led to uncontrolled delegation like that in Britain,
because no Legislature can ever part with its power to repeal a law
enacted by it.
• In reality, after delegating the power, Parliament cannot control its
delegated power through the power of repeal.
• Today's Legislature is too much under the control of the Executive.
• In a Parliamentary democracy, the Government of the day having
majority support in the Legislature can persuade or pressurise the
Legislature to enact any statute it desires.
• It is only a myth to suppose that the Legislature can ever repeal a law on its
own initiative if the delegate does not use the delegated powers properly;
• All legislation is sponsored by the Government; Parliament passes no law
without the initiative and consent of the Executive and it is highly
improbable that the Executive would ever ask Parliament to repeal a
provision delegating legislative power to itself on the ground that it has
misused that power as this would amount to self-censure by the
Government.
• The majority led by Khanna, J., refused to accept Mathew's, J., thesis and
reiterated the doctrine of excessive delegation with persuasive arguments.
• In his words: "The rule against excessive delegation of the legislative
authority flows from and is a necessary postulate of the sovereignty of the
people".
• Khanna, J., pinpointed the dangers inherent in Mathew's, J., thesis.
• Acceptance of this view would lead to startling results. Suppose the
crime situation in the country very much deteriorates.
• Can the legislature pass a law saying that henceforth criminal law
enacted in the country would be such as is framed by a Designated
Officer, can such a blanket delegation of legislative power be accepted
although the Legislature still keeps within its hands the ultimate
control of repealing the law in question if the Designated Officer does
not use his power in a way approved by the Legislature.
• Khanna J., explained the theoretical basis of the doctrine of excessive
delegation thus:
• “Our constitution makers have entrusted the power of legislation to
the representatives of the people, so that the said power may be
exercised not only in the name of the people but also by the people
speaking through their representatives.
• The rule against excessive delegation of the legislative authority flows
from and is necessary postulate of the sovereignty of the people.
• The rule contemplates that it is not permissible to substitute in the
matter of legislative policy the views of the individual officers or other
authorities, however, competent they may be for that of the popular
will as expressed by the representatives of the people.”
• While delegating legislative power, the Legislature should lay down
legislative policy, standards or guidelines for the delegate to follow.
• The Supreme Court has enunciated the doctrine of excessive
delegation in Registrar, Co-operative Societies v. K. Kunjabmu AIR
1980 SC 350 as follows:
• "...The power to legislate carries with it the power to delegate.
• But excessive delegation may amount to abdication.
• Delegation unlimited may invite despotism unlimited.
• So the theory has been evolved that the Legislature cannot delegate
its essential legislative function.
• Legislature, by laying down policy and principle, delegate it to fill in
detail and carry out policy.... If guidance is there, wherever it may be
found, the delegation is valid."
• The Court has stated in Kunjahmu case that guidance may be found
anywhere in the statute.
• E.g., in the express provision empowering delegation, or other provisions of
the statute, the Preamble, the scheme or even the very subject-matter of
the statute.
• The Court seeks to assess the policy underlying the Act not always within
the Act itself but even from factors external to the Act,
• E.g, history of the legislation.
• The Courts adopt a liberal stance in bringing out the legislative policy and
guidelines to uphold delegation of legislative power.
• The process of liberal interpretation should not be carried so far as to
always trying to discover “dormant and latent” legislative policy and,
sustain an arbitrary power on the Executive.
• The doctrine of "excessive delegation" will become ineffective and the
Legislature will be conferring unlimited power.
• The Supreme Court in St. John's Teachers Training Institute V Regional
Director NCTE (2003) 3 SCC 321, held that question whether a particular
legislation suffers from the vice of excessive delegation has to be
examined in the context of subject matter, the scheme, the provisions of
statute including its Preamble and the facts and circumstances in the
background of which statute is enacted.
• It was further held that there is a presumption in favour of the validity of
subordinate legislation and if it is open to two constructions, the one
which would make it valid has to be adopted and the legislation can also
be read down to avoid its being declared ultra vires.
• In Mahe Beach Trading Co. v. Union Territory of Pondicherry (1996) 3
SCC 741 the Supreme Court has stated that abdication of legislative
power, or excessive delegation, or a total surrender or transfer by the
Legislature of its legislative functions to another body, is not
permissible.
• There is, however, no abdication, surrender of legislative functions or
excessive delegation
• so long as the Legislature has expressed its will on a particular subject
matter, indicated its policy and left its effectuation to subordinate
legislation.
• When the Legislature has retained control in its hand on the matter of
delegation it can act as a check or a standard and prevent or undo the
mischief inflicted by subordinate legislation when it thinks fit.
• Whenever a statute is challenged on the ground of excessive
delegation, it becomes necessary for the Court to examine
• the statute and discern policy or guidelines for the exercise of power
of delegated legislation.
• The following cases have been classified as valid deligation from the
point of view of the nature of the power conferred:
• (i) skeleton legislation;
• (ii) power of inclusion and exclusion;
• (iii) power of modification of the statute; and
• (iv) removal of difficulties;
• (v) power to impose tax.
• (a) Skeleton Legislation
• In Bagla v. State of Madhya Pradesh AIR 1954 SC 465, two sections of
the Essential Supplies (Temporary Powers) Act, 1946, were
questioned on the ground of excessive delegation:
• Section 3(1) - “The Central Government, so far as it appears to it to be
necessary or expedient for maintaining or increasing supplies of any
essential commodity, or for securing their equitable distribution and
availability at fair prices, may by order provide for regulating or
prohibiting the production, supply...”; and
• Section 6 - “Any order made under s. 3 shall have effect
notwithstanding anything inconsistent therewith contained in any
enactment other than this Act.”
• Section 3 is empowering the Executive to create delegated legislation
not only to fill in the details in the statute but even to decide
questions of policy.
• Administrative control over essential commodities has been built up
by the Executive through administrative legislation under s. 3.
• The Supreme Court declared both the sections valid.
• The Act had sufficiently formulated the legislative policy, “maintaining
or increasing supplies etc.” in
• S. 3, and gave a clear and sufficient guidance to the Government to
exercise its power under the Section.
• The Court stated that the “ambit and the character of the Act is such
that the details of that policy can only be worked out by delegating
them to a subordinate authority within the framework of that policy.”
• The effect of s. 6, according to Court was not to repeal or abrogate
any pre-existing law.
• Its object was simply to by-pass the law where it was inconsistent
with the provisions of the Act and the orders made under it.
• With the order made under s. 3, then the repeal "is not by an act of
the delegate," but is by the "legislative act of the Parliament itself,“
• As Parliament itself has declared in s. 6 that an order made under s. 3
“shall have effect notwithstanding any inconsistency in this order with
any enactment other than this Act.”
• (b) Power of Exclusion and Inclusion
• To bring individuals, bodies or commodities within, or to exempt
them from, the purview of a statute.
• A usual legislative formula is to say that the Act applies to the items
mentioned in the schedule but Government has power to alter the
schedule by adding or removing some items.
• The range of the Act can be expanded or reduced by making
alterations in the schedule through delegated legislation.
• This provision involves delegation of power to modify the parent Act.
• The Minimum Wages Act, 1948 has been enacted, as stated in its
Preamble, “to provide for fixing minimum wages in certain
employments”.
• The Act applies to employments mentioned in the schedule, but
Government is given power to add any other employment to extend
the Act to that employment.
• In Edward Mills Co. v. State of Ajmer AIR 1955 SC 25 the Supreme
Court upheld the provision that the policy was apparent on the face
of the Act which was to fix minimum wages in order to avoid
exploitation of labour in those industries where wages were very low
because of unorganised labour or other causes.
• (c) Power to Modify the Statute
• A statute may confer on the executive the power to modify or amend the
parent statute itself.
• Prima facie it makes the Executive supreme even over the Legislature but,
such a power may have to be conferred in certain situations to provide for
flexibility of approach to meet the changing circumstances.
• For example, when some complicated scheme is introduced, it is thought
advisable to confer such a power on the Executive to enable it to make
necessary adjustments in the legislation itself so as to meet any unforeseen
difficulty.
• The power is conferred on the Executive because if the matter is taken to
the Legislature, it may delay the making of necessary changes in the
statute.
• There is thus a necessity of balancing two factors-
• (i) the danger of the executive misusing its power, and
• (ii) the need for delegating the power
• Such a drastic power does not fall foul of the doctrine of excessive
delegation if two conditions are satisfied:
• (a) the parent Act lays down the policy subject to which the power to
modify is to be exercised;
• (b) the power to modify cannot be exercised to change the policy
underlying the parent statute,
• or effect any essential changes therein.
• The power is to make alterations of a minor character.
• The scope of the words "such modification" is confined to alterations
which keep the inbuilt policy, essence and substance of the parent Act
intact.
• In Baburam Jagdish Kumar & Co. v State of Punjab AIR 1979 SC 1475
it was held that power by the Legislature to a local authority or to
Executive Government to vary or modify an existing law,
• Would not be unconstitutional if such delegation does not involve
abdication of essential legislative power by the Legislature,
• i.e., necessary guidelines are provided.
• (d) Removal of Difficulties
• Statutes usually contain a removal of difficulty clause,
• Nick-named in Britain as the Henry VIII clause because “King is
regarded popularly as the impersonation of executive autocracy”.
• The provision is used usually when the Legislature passes a statute
implementing a new socio-economic scheme.
• Not being sure of what difficulties may crop up in the a "removal of
difficulty" clause, Government may make provisions to remove any
difficulty that may arise in putting the law into operation.
• Generally, two types of "removal of difficulty" clauses can be
identified in the Indian statutes:
• (a) A narrow power under which "power to remove difficulties" has to
be exercised consistent with the provisions of the parent Act.
• In such a case, the Government cannot modify any provision of the
statute itself.
• Such a provision is valid vis-à-vis the doctrine of excessive delegation.
• But the resultant order made by the Executive to remove the
difficulty ought not to change the basic policy of the parent Act.
• (b) The other, a broader version, may authorize modification of the
parent Act, or any other Act, in the name of removal of difficulties.
• Usually, such a power is limited in point of time, say two or three
years.
• In principle, such a power is objectionable as it vests a vast arsenal of
power in the Executive.
• Section 128 of the State Reorganisation Act, 1956 laid down that
• “if any difficulty arises in giving effect to the provisions of this Act, the
President may by order do anything not inconsistent with such
provisions which appears to him to be necessary or expedient for the
purpose of removing the difficulty.”
• (e) Power to Impose Tax
• Levying tax is exclusively the function of the Legislature.
• After the Legislature enacts the statute to levy a tax, it may leave
some elements of taxing power to the Executive.
• No tax, fee or other pecuniary imposition can be levied by
subordinate legislation, unless the statute under which it is made
specifically authorises its imposition.
• General authorisation for carrying out purposes of the Act does not
include taxation.
• The Courts uphold delegation of power to decide “matters of details”
concerning the working of the tax law in question.
• In Orient Weaving Mills v. Union of India, AIR 1963 SC 98 a provision
conferring power on the Central Government to exempt any excisable
goods from the whole or part of the duty leviable on such goods was
held valid.
• The Supreme Court held the provision to be valid saying that while a
Legislature cannot delegate its essential legislative function,
• It can delegate the power to select the persons on whom, or the
goods or the transactions on which, the tax is to be levied.
• In the instant case, it is not possible for the Legislature itself to select
goods to be subjected to the single point tax.
Judicial Control
• Delegated legislation may be struck down on the ground of
non-application of mind on the part of delegatee to the relevant facts
in taking decisions.
• While considering the validity of delegated legislation, the scope of
judicial review is limited and based on nature and object of the
delegated legislation.
• The nature of delegated legislation can be broadly classified as:
• (1) the rule-making power and,
• (2) grant of exemption from the operation of a statute.
• In the second category, the scope of judicial review is wider as the
statutory authority must show that the it is done within the four
corners and,
• Also fulfils the criteria laid down by the legislature.
• The power of judicial review is not intended to assume a supervisory
role.
• The power is not intended to review governance under the rule of
law.
• The Courts do not step into the areas exclusively reserved to other
organs of the State.
• The supervisory jurisdiction of a Court is limited to see that the
authority concerned functions within its limits of its authority and its
decisions do not cause miscarriage of justice.
• Where irrelevant aspects have been removed from consideration and
• No relevant aspect has been ignored and,
• Administrative decisions have nexus with the facts on record, there is
no scope for interference.
• The duty of the Court is:
• (a) to confine itself to the question of legality;
• (b) to decide whether the decision-making authority exceeds its
powers;
• (c) committed an error of law;
• (d) committed breach of the rules of natural justice; and
• (e) reached a decision which no reasonable Tribunal would have
reached; or
• (f) abused its powers.
• The Court can ensure that the statutory functions are not carried out
at the whims of the officers of the Government in an arbitrary
manner.
• But the Court cannot itself take over these functions.
• An action is said to be arbitrary and capricious, where a person in
authority does any action
• based on individual discretion by ignoring prescribed rules, procedure
or law
• and the action or decision is founded on preference rather than
reason or fact.
• In Sanchit Bansal v Joint Admission Board, AIR 2012 SC 214
• To be termed as arbitrary and capricious, the action must be illogical
and whimsical, something without any reasonable explanation.
• When an action or procedure seeks to achieve a specific objective in
furtherance of prejudice or education in a bona fide manner,
• By adopting a process which is uniform and non-discriminatory, it
cannot be described as arbitrary or capricious or mala fide.
• Constitutionality of the Parent Act
• There is always a presumption in favor of Constitutionality,
• And a law will not be declared unconstitutional unless the case is so
clear as to be free from doubt;
• Where the validity of a statute is questioned and there are two
interpretations,
• Will make the law valid and the other void, the former must be
preferred and the validity of the law upheld.
• In pronouncing on the Constitutional validity of a statute, the Court is
not concerned with the wisdom or foolishness, the justice or the law.
• In Karnataka Bank Ltd v State of A.P. (2008) 5 SCC 254 the Supreme
Court held:
• If that which is passed into law, is within the scope of power
conferred a legislature and violates no restrictions on that power, the
law must be upheld whatever a Court may think of it.
• The first question is whether the parent statute under which
legislative powers have been delegated to the Administration is itself
Constitutional or not,
• If the delegating statute itself is unconstitutional, then the delegated
legislation emanating thereunder will also be invalid.
• The parent Act may be unconstitutional on several grounds,
• (i) excessive delegation; or
• (ii) breach of a Fundamental Right; or
• (iii) on any other ground, such as, distribution of powers between the
Centre and the States.
• Constitutionality of Delegated Legislation
• The Courts may be asked to consider the question of Constitutionality
of delegated legislation itself.
• It is quite possible that while the parent statute may be
Constitutional, the emanating delegated legislation may be in conflict
with some provision of the Constitution.
• In Narendra Kumar v. Union of India, the Supreme Court specifically
considered the point whether the question of unconstitutionality of
delegated legislation made under a valid Act could be raised or not.
• The Non-Ferrous Metals Order, 1958 was made under the Essential
Commodities Act, 1955.
• The question now was whether the Constitutional validity of the
order made under the Act could be canvassed under Art. 19(1)(g).
• The Court held that though a law may not be unconstitutional,
• An order made thereunder may yet be challenged under the
Constitution,
• Because the law could not be presumed to authorise anything
unconstitutional.
• Doctrine of Ultra Vires
• Where the validity of subordinate legislation is challenged,
• The question to be asked is whether the power given to the
rule-making authority is exercised for the purpose for which it is
given.
• Before reaching the conclusion that the rule is intra vires,
• The Court has to examine the nature, object and the scheme of the
legislation as a whole,
• The Court has to consider the nature of the power conferred by the
section under which the rule making authority has to act.
• The Court has to start with the presumption that impugned rule is
intra vires.
• The validity of delegated legislation may be adjudged by the Courts on the
ground whether it ultra vires or intra vires the parent Act.
• The doctrine envisages that an authority can exercise only so much power
as is conferred on it by law.
• The basic test is to determine and consider the source of power which is
relatable to the rule.
• A rule must be in accord with the parent statute as it cannot travel beyond
it,
• Therefore, an order passed by an officer having no authority of law has no
effect.
• In Union of India v. Purushottam AIR 2015 SC 961 the Supreme Court
noted that
• “The Army Authorities are often consumed by the Army Rules, 1954
without fully comprehending, the scope of the Army Act, 1950 itself.”
• If power to do a particular act is only provided in the Rules but not in the
statute then the Rules would suffer from the vice of excessive delegation.
• An action of the authority is intra vires when it falls within the
parameters of the power conferred on it, but ultra vires when it goes
outside these limits.
• As the Supreme Court has observed in State of Uttar Pradesh v.
Renusagar AIR 1988 SC 1737:
• “If the exercise of power is in the nature of subordinate legislation,
the exercise must conform to the provisions of the statute. All the
conditions of the statute must be fulfilled.”
• Is the rule challenged within the scope of the authority conferred on
the rule-maker by the parent statute?
• The Court does not concern itself with the wisdom or efficaciousness
of the rules.
• It is not for the Courts to examine the merits or demerits of a policy.
• Doctrine of ultra vires is concerned with legality and not with the
policy underlying the impugned rules,
• The doctrine of ultra vires has two aspects:
• (1) substantive ultra vires and
• (2) procedural ultra vires.
• When a piece of delegated legislation is declared to be ultra vires, it is
deemed to be void ab initio, and it becomes unenforceable.
• Until a rule is declared invalid by a Court, it is presumed to be valid.
• If the valid and the invalid parts of a rule can be severed, then only
the invalid portion of the rule is quashed and the valid portion can
continue to remain operative.
• But if the valid and the invalid parts are inextricably mixed up, then
the entire rule has to go.
• In MJ. Sivani v State of Karnataka AIR 1995 SC 1770 it was held that
though the delegated authority under the Act made a general order, it
may well be that a part thereof is not applicable or is bad in relation
to a particular trade or business but the delegated legislation cannot
be condemned as a whole unless the invalid part is inextricably
inter-connected with the valid part.
• A void rule cannot be the basis of any administrative action. No one
can be prosecuted under a void rule.
• Substantive Ultra Vires
• Substantive ultra vires means that the rule-making authority has no
substantive power under the empowering Act to make the rules in
question.
• It refers to the scope, extent and range of power conferred by the
parent statute to make delegated legislation.
• The principle is that the delegate cannot make a rule which is not
authorised by the parent statute.
• If the subordinate legislative authority keeps within the scope and
bounds of the power delegated, the delegated legislation is valid; but
if it falls outside the scope of the power, the Courts will declare it
invalid.
• Delegated legislation to be valid must fall within the four corners of
the powers conferred by the statute.
• Delegated legislation will be struck down on the ground of
substantive ultra vires if it infringes the parent Act, another statute, or
Constitutional principle.
• Delegated legislation beyond the scope of the power conferred by the
parent Act, or in conflict with the delegating statute is invalid.
• While applying the principle of ultra vires, the Courts do not go into
the question whether there could be a better rule than the one
framed.
• The Courts do not review the policy underlying a rule.
• The only concern of the Courts is to assess whether the impugned
rule is ultra vires or intra vires.
• The principle is that the delegate cannot make a rule which is not
authorised by the parent statute.
• The Supreme Court in Agricultural Marketing Committee v Shalimar
Chemical Works AIR 1997 SC 2502 has explained the doctrine ultra
vires as follows:
• “The effect of these principles is that the delegate which has been
authorised to make subsidiary Rules and Regulations has to work
within the scope of its authority and cannot widen or constrict the
scope of the Act or the policy laid down thereunder.”
• The Supreme Court has declared in State of Karnataka v. H. Ganesh
Kamath AIR 1983 SC 550, that the rule-making power cannot include
within its scope the power to make a rule contrary to the provisions
of the Parent Act.
• To be valid, the rule must fulfil two conditions,
• (1) it must conform to the provisions of the statute under which it is
being framed; and
• (2) it must also come within the scope and purview of the rule making
power of the authority framing the rule.
• If either of these conditions is not fulfilled, the rule would be ultra
vires.
• The Supreme Court while dealing with challenge to the validity of
subordinate legislation has held that there is a presumption in favour
of its Constitutionality or validity.
• Subordinate legislation can be challenged under any of the following
grounds:
• (a) Lack of legislative competence to make the subordinate
legislation;
• (b) Violation of fundamental rights guaranteed under the
Constitution;
• (c) Violation of any provision of the Constitution;
• (d) Failure to conform to the statute under which it is made or
exceeding the limits of authority conferred by the enabling Act;
• (e) Repugnancy to the laws of the land, that is, any enactment;
• (f) Manifest arbitrariness/unreasonableness to an extent where the
Court might well say that the legislature never intended to give
authority to make such rules.
• In Kerala Samsthana Chetu Thozhilali Union v State of Kerela, AIR
2006 SC 3480, it has been held that a rule must not only conform to
provisions of the Act under which it is made, but also to the
provisions of other Acts.
• Rule 4(2) and 9(10)(b) of Kerala Abkari Shops Disposal Rules, 2002
which provided that one arrack worker each must be employed in all
toddy shops, was struck down as violating the provisions of Industrial
Disputes Act, 1947.
• To apply the doctrine of substantive ultra vires,
• The Court, first, interprets the relevant statutory provision to
determine the scope of delegation of power and, then,
• interprets the delegated legislation
• and, adjudge whether the same is within, or without, the statutory
power conferred.
• The Court may interpret the statutory provision narrowly or broadly
keeping in view the circumstances of the specific case.
• In Bar Council of Delhi v Surjeet Singh AIR 1980 SC 1612,
• (1) Under s. 3(4) of the Advocates Act, 1961, the qualifications
entitling an advocate to vote at an election, or for being a candidate
for membership of the State Bar Council, have to be prescribed by the
Bar Council of India.
• This cannot be done by the State Bar Council.
• If a rule for the purpose is made by the State Bar Council, it cannot be
valid even if it is approved by the Bar Council of India for
• (i) approval of an ultra vires rule cannot validate it;
• (ii) making of a rule and giving approval to a rule are two distinct
concepts.
• Usually, the Legislature confers power in broad terms.
• The efficacy of judicial review on the ground of substantive ultra vires
depends on the phraseology.
• If it is couched in broad language, the efficacy of the doctrine of
substantive ultra vires will be very much compromised as,
• The Court will find extremely difficult to hold a rule as falling outside
the scope of the power delegated.
• Declaring delegated legislation ultra vires also becomes difficult
because of judicial attitude.
• The judicial policy generally is to interpret the delegating provision
rather broadly.
• Courts also adopt a deferential, rather than a critical, attitude towards
delegated legislation.
• And they lean towards the validity of the impugned delegated
legislation.
• In Bombay Dyeing & Manufacturing Co. Ltd. V Bombay
Environmental Actions Group, AIR 2006 SC 1489
• Section 3 (1) of the Defence of India Act, 1962 authorized the Cetral
Government to make rules
• “as appear to it necessary or expedient for securing the defence of
India and civil defence… or for maintaining supplies and services
essential to the life of the community.:
• The provision conferred a very liberal discretionary power on the
Government to make rules as the "necessity" or "expediency" of a
rule depended on the subjective satisfaction of the Govt.
• And there was no principle, policy direction or guidance given to the
Government as to how to exercise its power.
• The only possible restriction on the Government would be to act in
good faith, not with an ulterior motive," and make rules for the
purposes specified in s. 3(1), which were stated in broad terms.
• The High Court took the position that it could not act as a Court of
appeal from the Government.
• And examine whether the view of the Government that the rules
would subserve the purposes stated was right or wrong, or substitute
its own opinion for that of the Govt.
• The rules could not be struck down unless it appears clearly to the
Court that the rules cannot, on a reasonable view of the matter,
subserve stated purposes.
• The test must be whether the rules are reasonably related to t
achievement of the specified purposes.
• In Rajnarain v Chairman Patna Administration Committee AIR 1954
SC 569,
• the Executive picked up a section of the parent Act pertaining to the
levy of taxes and extended it to a new area.
• The policy of the parent Act was to give to the concerned people an
opportunity of filing objections of being heard before any tax was
imposed on them.
• In the instant case, this safeguard was dropped.
• The tax was imposed without giving the people concerned a hearing.
• The Court held that this involved a change of policy and therefore, the
extension of the section was ultra vires.
• In Lachmi Narain v Union of Inida AIR 1976 Sc 714,
• The delegating provision gave power to the Government to modify
the schedule appended to the Act by giving a three months notice.
• The schedule listed non-taxable items under the Act.
• Under the Union Territories (Laws) Act, 1950 this provision was
modified by dropping the requirement of three months notice.
• The Supreme Court declared this modification ultra vires for it made a
change in the policy of the Act.
• The three months' notice to effect any change in the schedule was a
matter of "legislative policy" which only the Legislature could change
and not the delegate.
• Mala Fides of the Rule Maker
• A rule may be challenged on the mala fides of the rule-making
authority.
• All powers are to be exercised in good faith.
• There can be two ways by which a case of mala fides can be made
out,
• one that the action which is impugned has been taken with the
specific object of damaging the interest of the party and,
• secondly, such action is aimed at helping some party which results in
damage to the party alleging mala fides.
• The burden of proving mala fides is very heavy on the person who
alleges it.
• There has to be very strong and convincing evidence to establish the
allegations of mala fides.
• In Mc Eldowney v. Forde, (1969) 2 All ER 1039, it has been stated by
the Privy Council that
• if the power entrusted for one purpose is deliberately used with the
design of achieving some other purpose,
• which itself is unauthorised or is forbidden,
• if bad faith of this kind may be established, the Court may intervene.
• It has also been stated that subordinate legislation may be held ultra
vires the enabling Act if “the legislators have been animated by
improper personal motives which affect the substance of the
end-product.”
• The Courts have ruled that an unreasonable rule denies equality.
• A rule which is arbitrary or irrational would not stand the test of Art.
14.
• In State of MP v Mahalaxmi Fabrics Mills AIR 1995 SC 2213 it is held
that a subordinate legislation is open to challenge on the ground that
• It is arbitrary, irrational or confiscatory in nature so as to be violative
of Arts. 14 and 19(1)(g) of the Constitution.
• In Khoday Distilleries Ltd. v State of Karnataka, (1996) 10 SCC 639 it
was observed that,
• in order that a delegated legislation can be struck down, it must be
shown that such legislation is manifestly arbitrary,
• a law which could not be expected to emanate from an authority
delegated with the law making power.
• Under Art. 19, only reasonable restrictions can be imposed on certain
freedoms enjoyed by the citizens of India, viz., freedom of speech,
association, assembly, movement and trade.
• Article 19 bars unreasonable restrictions being imposed on the
various freedoms guaranteed by it.