Delegated Legislation

Administrative Law
 Delegated Legislation

• “When an instrument of a legislative nature is made by an authority in

exercise of power delegated or conferred by the legislature, it is called
subordinate legislation or delegated legislation.” (Halsbury)

• The numbers: From 1973-77, total of 302 laws passed by Parliament.

Number of statutory orders and rules passed in the same period: 25,414.
(quoted in Avinder Singh v State of Punjab).
 Need for Delegated Legislation
• Parliamentary time.
• Impossibility to foresee all contingencies.
• Technical nature. (see various RBI, SEBI Rules)
• Flexibility to experiment.
• Secrecy (?)
• Localisation of needs and diversity.
• Participation and consultation.
 History
• UK
• Doctrine of Parliamentary Sovereignty.
• Henry VIII Clauses. 
– A Clause, which confers power on a Minister to modify the provisions of Acts of
Parliament.
– History – Statute of Proclamation, 1539, under which Henry was given powers to
legislate by way of proclamations.
– Article 372 of the Constitution:
– “(2) For the purpose of brining the provisions of any law in force in the territory of
India into accord with the provisions of this Constitution, the President may by
order make such adaptations and modifications of such law, whether by way of
repeal or amendment, as may be necessary or expedient, and provide that the law
shall, as from such date as may be specified in the order, have effect subject to the
adaptations and modifications so made, and any such adaptation or modification
shall not be questioned in any court of law.
Committee on Ministers’ Powers (1932)
• “the delegation of legislative powers is legitimate for
certain purposes, within certain limits, and under
certain safeguards. It is plain that it is in fact inevitable.”

• Suggestion: “The precise limits of the law-making

power which Parliament intends to confer on a Minister
should always be expressly should or defined in clear
language by the statute which confers it: when
discretion is conferred, its limits should be defined with
equal clearness.
• On Henry VIII Clauses:
• “Even though it may be admitted that Parliament itself has conferred these
powers upon Ministers, and must be presumed to have done so with the
knowledge of what it was doing, it cannot but be regarded as inconsistent with
the principles of Parliamentary government that the sub ordinate law-making
authority should be given by the superior law making authority power to
amend a statute which has been passed by the superior authority.”
• “mere existence of the power has aroused suspicion and hostility against the
machinery of government as it exists, and may well continue to do so in an
increasing degree : and that it is a standing temptation to Ministers and their
subordinates either to be slipshod in the preparatory work before the Bill is
introduced in Parliament or to attempt to seize for their own Departments the
authority which properly belongs to Parliament.”
• Using a Henry VIII clause should be abandoned in all but the most exceptional
cases.
• “the adoption of such a clause ought on each occasion when it is, on the initiative of
the Minister in charge of the Bill, proposed to Parliament to be justified by him up to
the hilt and that secondly its use should be avoided unless demonstrably essential. It
can only be essential for the limited purpose of bringing an Act into operation and it
should accordingly be in most precise language restricted to those purely machinery
arrangements vitally requisite for that purpose ; and the clause should always contain
a maximum time limit of one year after which the powers should lapse.

• In addition, saw two defects in the current Parliamentary system:

– The free delegation of law-making powers, and
– The non-availability of an effective machinery to oversee the exercise of delegated powers.
 
• Hence, suggested setting up a Standing Committee in each House to:
– Look through legislation that delegates, and
– Look through delegated legislation.
 US
• Constitutional Framework:
• Article I
• Section 1
• All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives.

• Article. II.Section. 1.
• The executive Power shall be vested in a President of the United States of America.
 
• Article. III.
• Section. 1.
• The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish.
 Field v Clark (1892)
• Facts: The third section of the Act of October 1, 1890, c. 1244, § 3, is in these words:
• "SEC. 3. That with a view to secure reciprocal trade with countries producing the following
articles, and for this purpose, on and after the first day of January, eighteen hundred and
ninety-two, whenever and so often as the President shall be satisfied that the government
of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and
uncured, or any of such articles, imposes duties or other exactions upon the agricultural
or other products of the United States, which in view of the free introduction of such
sugar, molasses, coffee, tea, and hides into the United States he may deem to be
reciprocally unequal and unreasonable, he shall have the power, and it shall be his duty,
to suspend, by proclamation to that effect, the provisions of this act relating to the free
introduction of such sugar, molasses, coffee, tea, and hides, the production of such
country, for such time as he shall deem just, and in such case and during such suspension
duties shall be levied, collected, and paid upon sugar, molasses, coffee, tea, and hides, the
product of or exported from such designated country, as follows, namely:" (This was
followed by very specific fixation of the rates involved for these products in such
circumstances.)
• Issue: Whether Section 3 of the Act is invalid because it delegates legislative powers to the
President?
• “That Congress cannot delegate legislative power to the President is a principle
universally recognized as vital to the integrity and maintenance of the system of
government ordained by the Constitution. The Act of October 1, 1890, in the
particular under consideration, is not inconsistent with that principle. It does not in
any real sense invest the President with the power of legislation… Congress itself
prescribed in advance the duties to be levied, collected, and paid on sugar, molasses,
coffee, tea, or hides, produced by or exported from such designated country while the
suspension lasted.
• ““As the suspension was absolutely required when the President ascertained the
existence of a particular fact, it cannot be said that in ascertaining that fact, and in
issuing his proclamation in obedience to the legislative will, he exercised the function
of making laws. Legislative power was exercised when Congress declared that the
suspension should take effect upon a named contingency. What the President was
required to do was simply in execution of the act of Congress. It was not the making
of law. He was the mere agent of the lawmaking department to ascertain and declare
the event upon which its expressed will was to take effect.
• “The legislature cannot delegate its power to make a law,
but it can make a law to delegate a power to determine
some fact or state of things upon which the law makes, or
intends to make, its own action depend. To deny this
would be to stop the wheels of government. There are
many things upon which wise and useful legislation must
depend which cannot be known to the lawmaking power,
and must therefore be a subject of inquiry and
determination outside of the halls of legislation.

• Hence, upheld the vires of the Act in question.

Panama Refining Co v Ryan (1935)
• Facts: New Deal Legislation. § 9(c) of title 1 of the National Industrial Recovery Act
provided:
• “(c) The President is authorized to prohibit the transportation in interstate and foreign
commerce of petroleum and the products thereof produced or withdrawn from storage in
excess of the amount permitted to be produced or withdrawn from storage by any State
law or valid regulation or order prescribed thereunder, by any board, commission, officer,
or other duly authorized agency of a State…”
• Section 1 of the Act: policy of Congress "to remove obstructions to the free flow of
interstate and foreign commerce which tend to diminish the amount thereof;" "to provide
for the general welfare by promoting the organization of industry for the purpose of
cooperative action among trade groups;" "to induce and maintain united action of labor
and management under adequate governmental sanctions and supervision;""to eliminate
unfair competitive practices, …

• Issue: Whether S 9(c) delegated legislative power to the President.

 
• “Section 9(c) does not state whether or in what circumstances or under
what conditions the President is to prohibit the transportation of the
amount of petroleum or petroleum products produced in excess of the
state's permission. It establishes no criteria to govern the President's
course. It does not require any finding by the President as a condition of
his action. The Congress in § 9(c) thus declares no policy as to the
transportation of the excess production. So far as this section is
concerned, it gives to the President an unlimited authority to determine
the policy and to lay down the prohibition, or not to lay it down, as he
may see fit.
• On the insufficiency of the policy declaration in the title of the Act: ““this
broad outline is simply an introduction of the act, leaving the legislative
policy as to particular subjects to be declared and defined, if at all, by the
subsequent sections.
• “The question whether such a delegation of legislative power is permitted by the
Constitution is not answered by the argument that it should be assumed that the
President has acted, and will act, for what he believes to be the public good. The
point is not one of motives, but of constitutional authority, for which the best of
motives is not a substitute.
• “The Congress manifestly is not permitted to abdicate or to transfer to others the
essential legislative functions with which it is thus vested. Undoubtedly legislation
must often be adapted to complex conditions involving a host of details with which
the national Legislature cannot deal directly. The Constitution has never been
regarded as denying to the Congress the necessary resources of flexibility and
practicality which will enable it to perform its function in laying down policies and
establishing standards, while leaving to selected instrumentalities the making of
subordinate rules within prescribed limits and the determination of facts to which
the policy as declared by the Legislature is to apply. Without capacity to give
authorizations of that sort, we should have the anomaly of a legislative power
which, in many circumstances calling for its exertion, would be but a futility. But
the constant recognition of the necessity and validity of such provisions and the
wide range of administrative authority which has been developed by means of
them cannot be allowed to obscure the limitations of the authority to delegate, if
our constitutional system is to be maintained.
• “Thus, in every case in which the question has been raised, the
Court has recognized that there are limits of delegation which there
is no constitutional authority to transcend. We think that § 9(c)
goes beyond those limits. As to the transportation of oil production
in excess of state permission, the Congress has declared no policy,
has established no standard, has laid down no rule. There is no
requirement, no definition of circumstances and conditions in
which the transportation is to be allowed or prohibited.
 Cardozo’s Dissent
• ““In the laying of his interdict, he is to confine himself to a particular commodity,
and to that commodity when produced or withdrawn from storage in contravention
of the policy and statutes of the states. He has choice, though within limits, as to
the occasion, but none whatever as to the means. The means have been
prescribed by Congress. There has been no grant to the Executive of any roving
commission to inquire into evils and then, upon discovering them, do anything he
pleases.
• “I am persuaded that a reference, express or implied, to the policy of Congress as
declared in § 1, is a sufficient definition of a standard to make the statute valid.
Discretion is not unconfined and vagrant. It is canalized within banks that keep it
from overflowing … Under these decisions, the separation of powers between
the Executive and Congress is not a doctrinaire concept to be made use of with
pedantic rigor. There must be sensible approximation, there must be elasticity of
adjustment, in response to the practical necessities of government, which cannot
foresee today the developments of tomorrow in their nearly infinite variety.
• “The ascertainment of these facts at any time or place was a task too intricate and special
to be performed by Congress itself through a general enactment in advance of the event.
All that Congress could safely do was to declare the act to be done and the policies to be
promoted, leaving to the delegate of its power the ascertainment of the shifting facts that
would determine the relation between the doing of the act and the attainment of the
stated ends. That is what it did. It said to the President, in substance: you are to consider
whether the transportation of oil in excess of the statutory quotas is offensive to one or more
of the policies enumerated in § 1, … If these standards or some of them have been flouted,
with the result of a substantial obstruction to industrial recovery, you may then by a
prohibitory order, eradicate the mischief.
• “There is no fear that the nation will drift from its ancient moorings as the result of the
narrow delegation of power permitted by this section. What can be done under cover of that
permission is closely and clearly circumscribed both as to subject matter and occasion. The
statute was framed in the shadow of a national disaster. A host of unforeseen contingencies
would have to be faced from day to day, and faced with a fullness of understanding
unattainable by anyone except the man upon the scene. The President was chosen to meet
the instant need.
• “So long as a policy is laid down and a standard established by statute no
constitutional delegation of legislative power is involved in leaving to selected
instrumentalities the making of subordinate rules within prescribed limits and
the determination of facts to which the legislation is to apply" [Schechter
Poultry Corp. v. United States, 295 U.S. 495].

• The syllogism of Prof Cushman:

• “Major Premise: Legislative powers cannot be constitutionally delegated by
Congress.
• Minor Premise: It is essential that certain powers be delegated to
administrative officers and regulatory commissions.
• Conclusion: Therefore, the powers thus delegated are not legislative powers.”
 India
• Constitutional provisions that explicitly
mention delegation:
– Article 357.
– 372.
– Article 53 v Articles 245 and246.
 R v Burah (1878)
• Privy Council.
• Facts: Act passed in 1869 to remove Garo Hills from the civil and criminal jurisdiction of
Bengal, vesting these powers in an officer to be appointed by the Lieutenant Governor of
Bengal. Section 9 of the Act allowed the LG to extend any provisions of the Act to the Khasi
and Jaintia Hills 
• The section runs as follows:-
• “The said Lieutenant-Governor may from time to time, by notification in the Calcutta
Gazette, extend to the said territory any law, or any portion of any law, now in force in the
other territories subject to his Government, or which may hereafter be enacted by the
Council of the Governor-General, or of the said Lieutenant-Governor, for making laws and
regulations, and may on making such extension direct by whom any powers or duties
incident to the provisions so extended shall be exercised or performed, and make any order
which he shall deem requisite for carrying such provisions into operation.”
•  The Calcutta HC declared Section 9 as unconstitutional delegation of power on the basis of
the principle of delegatus non-potest delegare.
• Doctrine of delegatus non-potest delegare, which in simple language means that a
delegated authority cannot be redelegated, or, in other words, one agent cannot lawfully
appoint another to perform the duties of agency.
• Issue: Whether the Act amounted to an unconstitutional delegation of legislative
power?

• Court:
• The doctrine of delegatus non-potest delegare:
• “The Indian Legislature has powers expressly limited by the Act of the Imperial
Parliament which created it, and it can of course do nothing beyond the limits which
circumscribe these powers. But when acting within those limits it is not in any sense
an agent or delegate of the Imperial Parliament, but has, and was intended to have,
plenary powers of legislation as large, and of the same nature, as those of Parliament
itself.”
• “Their Lordships agree that the Governor-General in Council could not by any form of
enactment, create in India, and arm with general legislative authority, a new
legislature power, not created or authorized by the Councils Act. Nothing of that kind
has, in their Lordships' opinion, been done or attempted in the present case.
• The proper Legislature has exercised its judgment as to place, person,
laws, powers; and the result of that judgment has been to legislate
conditionally as to all these things. The conditions having been
fulfilled, the legislation is now absolute. Where plenary power of
legislation exist as to particular subjects, whether in an Imperial or in
a provincial legislature, they may (in their Lordship's judgment) be
well exercised, either absolutely or conditionally. Legislation,
conditional on the use of particular powers, or the exercise of a
limited discretion, entrusted by the Legislature to persons in whom it
places confidence, is no uncommon thing; and in many
circumstances, it may be highly convenient….”

• Hence, upheld the Act.

 In Re Delhi Laws Act case. (1951)
• (a) Section 7 of the Delhi Laws Act, 1912.
• “The Provincial Government may, by notification in the official gazette,
extended with such restrictions and modifications as it thinks fit to the
Province of Delhi or any part thereof, any enactment which is in force in any
part of British India at the date of such notification.”
• (b) Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947: Similar to
the Delhi Laws Act above.
• (c) Section 2 of the Part C States (Laws) Act, 1950:
• “The Central Government may, by notification in the official Gazette, extend
to any Part C State (other than Coorg and the Andaman and Nicobar Islands)
or to any part of such State, with such restriction and modifications as it
thinks fit, any enactment which is in force in a Part A State at the date of the
notification; and provision may be made in any enactment to extended for
the repeal or amendment of any corresponding law (other than a Central
Act) which is for the time being applicable to that Part C State.”
• Fazl Ali’s three principles:
• Delegatus non-potest delegare.
• Separation of powers.
• Where the sovereign power of the State has
located the authority, there it must remain.
 Rajnarian Singh v The Chairman, Patna
Administration (1954)
• 5 Judges. Unanimous.
• Facts: The Appellants reside in an area which was originally outside the municipal limits of Patna and was
not liable to municipal taxation. Section 3(1)(f) of the Patna Administration Act was impugned in the case.
The section empowered the Local Government to:
• "extend to Patna the provisions of any section of the said Act" (the Bengal Municipal Act of 1884) "subject
to such restrictions and modifications as the Local Government may think fit."
• Section 6 of the Act allowed the extension of the application of the Act to new areas via notification.

• The Governor of Bihar picked section 104 out of the Bihar and Orissa Municipal Act of 1922, modified it an
extended it in its modified form to the Patna Administration and Patna Village areas. This ran as follows:
• “104. Assessment of taxes - When the Patna Administration Act, 1915, (B & O Act I of 1915), is first
extended to any place, the first tax on holdings, latrines or water may be levied from the beginning of the
quarter next to that in which the assessment of the tax has been completed in the area to which the Act is
extended.”

• Sections 4, 5 and 6 of the Original Act stated that no municipality competent to tax shall be thrust upon a
locality without giving its inhabitants a chance of being heard and of being given an opportunity to object.
• Issue: Whether the impugned notification travels beyond the vires of
the Act in question.
• Also, the validity of S 3(1)(f) of the Act.

• Court:
• “In our opinion, the majority view was that an executive authority can
be authorised to modify either existing or future laws but not in any
essential feature. Exactly what constitutes an essential feature cannot
be enunciated in general terms, and there was some divergence of
view about this in the former case, but this much is clear from the
opinions set our above : it cannot include a change of policy.”
• “It follows that when a section of an Act is selected for application,
whether it is modified or not, it must be done so as not to effect any
change of policy, or any essential change in the Act regarded as a
whole. Subject to that limitation we hold that section 3(1)(f) is intra
vires…”

• “The notification of 23rd April, 1951 does, in our opinion, effect a

radical change in the policy of the Act. Therefore, it travels beyond the
authority which, in our judgment, section 3(1)(f) confers and
consequently it is ultra vires.”

• This test of modification upheld in the Lachmi Narain v UOI (1975) case
as well.
Hamdard Dawakhana v Union of India (1959)
Gwalior Rayon case
• MK Papiah v Excise Commissioner (1975) case in effect went
against the majority in the Gwalior Rayon case despite
Papiah being just a two judge bench (Gwalior Rayon was 5
judges). Judgment by Mathew, J.

• Later case of Registrar of Coop Societies v Kunjabmu (1980):

• “We do not wish in this case to search for the precise
principles decided in the Delhi Laws Act case, nor to consider
whether MK Papiah beats the final retreat from the earlier
position. For the purposes of this case we are content to
accept the ‘policy’ and ‘guidelines’ theory.”
AV Nachane Case
 Sub-delegation
• The principle of delegatus non potest delegare, though not applicable to the Legislature
itself, applies to all subordinate authorities in the legislative sphere.

• General rule –
• prohibited unless expressly (or by necessary implication) allowed by the statute that
delegates the legislative power, and
• only to the extent strictly allowed by the provision that authorises it.

• Example: Essential Commodities Act: Section 5:

• “5. Delegation of powers—The Central Government may, by notified order, direct that [the
power to make orders or issue notifications under section 3] shall, in relation to such
matters and subject to such conditions, if any, as may be specified in the direction, be
exercisable also by-
• (a)  such officer or authority subordinate to the Central Government; or
• (b)  such State Government or such officer or such authority subordinate to a State
Government; as may be specified in the direction.”
 Conditional and Subordinate Legislation
• Conditional Legislation: when the legislation is complete in itself and
the legislature has itself made the law and the only function left to
the delegate is to apply the law to an area or to determine the time
and manner of carrying it into effect.

• “conditional legislation contains no element of delegation of

legislative power and is, therefore, not open to attack on the ground
of excessive delegation, delegated legislation does confer some
legislative power on some outside authority and is therefore open to
attack on the ground of excessive delegation.” (Hamdard Dawakhana)

• Subordinate legislation.
Recapitulation: The Limits of Delegation
• Essential legislative functions.
• The abdication problem.
• Discerning the policy of a statute.
– Explicit, and
– Implicit.
• Power to Repeal.
– Power to ‘bypass’.
• Power to Modify.
• Power wrt future laws.
• Sub-delegation.
 Controls and Safeguards
• Largely divided into two:
– Parliamentary, and
– Judicial.

• Difference b/w Parliamentary and Judicial

Control.
 Parliamentary Control
• General Control
– (i) questions to a Minister at any time and on any subject,
– (ii) motion of censure to be moved on the Minister-in-charge of implementation of any statute,
and
– (iii) debate on a subject relating to subordinate legislation.
– (iv) Votes on grants.

• Relevant Rule of the Rules of Procedure in the Lok Sabha:

• “70. A Bill involving proposals for the delegation of legislative power shall further be
accompanied by a memorandum explaining such proposals and drawing attention to
their scope and stating also whether they are of normal or exceptional character.”

• These devices, however, do not always function satisfactorily and, therefore, need to be
supplemented by special committees in the legislative bodies to watch over the exercise
of delegated legislation and to report accordingly.” – From the Report of the Committee
on Subordinate Legislation.
Indirect Control: Committee on Subordinate
Legislation
• Committee constituted u/R 317-322 of the Rules of
Procedure and Conduct of Business in the Lok Sabha.

• Major Functions of the Committee:

• Examination of Delegated Legislation – whether laid
before the House or not.
• Examination of legislation that delegates (Parent Act)
• Examination of any Bill specially referred by the
Speaker
 Rule 320
• 320. After each such Order referred to in rule 319 is laid before the House, the Committee
shall, in particular, consider—
• (i)  whether it is in accord with the general objects of the Constitution or the Act pursuant
to which it is made;
• (ii)  whether it contains matter which in the opinion of the Committee should more
properly be dealt with in an Act of Parliament.
• (iii)  whether it contains imposition of any tax;
• (iv)  whether it directly or indirectly bars the jurisdiction of the courts;
• (v)  whether it gives retrospective effect to any of the provisions in respect of which the
Constitution or the Act does not expressly give any such power;
• (vi)  whether it involves expenditure from the Consolidated Fund of India or the public
revenues;
• (vii)  whether it appears to make some unusual or unexpected use of the powers
conferred by the Constitution or the Act pursuant to which it is made;
• (viii)  whether there appears to have been unjustifiable delay in its publication or in laying
it before Parliament; and
• (ix)  whether for any reason its form or purport calls for any elucidation.
 Committee Procedure
• Can call for clarifications and has the power to summon witnesses
and compel the production of documents.

• Hears out various interested parties.

• Presents Reports to the House from time to time.

• Sends recommendations on Orders and Acts. On the

recommendations contained in the reports of the Committee, the
Government is required to take action within six months and keep
the Committee informed of the action taken or proposed to be
taken in each case
 Recommendations of the Committee
• (i)  Provision of Rule 70 of the Rules of Procedure and Conduct of Business in Lok
Sabha are mandatory and therefore compliance therewith should invariably be
made in case of every Bill which involves delegation of legislative power to the
Central Government or to any other authority.
• (ii)  Ordinarily, rules should be framed under an Act as soon as possible after its
coming into force and in no case this period should exceed six months.
• (iii)  As far as possible, the use of complicated language in the rules should be
avoided. Rules should be specific and definite. The use of vague expressions (like
‘unreasonable large quantity’), which may be interpreted differently by different
persons, is to be avoided.
• (iv)  In cases where the rules are required to be published in the draft form, a
period of not less than 30 clear days should invariably be given to the public to
send their comments/ suggestions on the draft rules.
• (xxv)  In cases where the rules/regulations/bye-laws are published in draft form for
inviting comments/suggestions from the public, those should be finalised and
notified in final form within a period of 3 months after the receipt of
comments/suggestions
• (v)  ‘Orders’, required to be laid before the House, should be laid within a period of 15 days after their
publication in the Gazette, if the House is in session. And if the House is not then in session, the ‘Orders’
should be laid on the Table as soon as possible (but within 15 days) after the commencement of the
following session, whenever, ‘Orders’ are laid after an inordinate delay, an explanatory note giving the
reasons for such delay should be appended thereto.
• (vi)  All rules framed by Government, pursuant to Constitutional or statutory provisions, should
invariably be published in the Gazette for public information.
• (ix)  Whenever rules are laid on the Table of the House, a Statement of Objects and Reasons and also
explanatory notes on the rules should also be appended thereto. When new rules amending the original
rules are laid on the Table the relevant extracts of the original rules sought to be amended should also be
attached to amending rules.

• (xi)  No charges should be levied unless there is an express authorisation therefor in the parent law.
• (xiv)  Retrospective effect to Subordinate Legislation cannot be given without an express authorisation
therefor in the parent Act. Even the cases where the Government has the power to give effect to
Subordinate Legislation such powers should be exercised only in unavoidable circumstances, and the
Rules/ Regulations framed thereunder should in each case be accompanied by an explanatory note or
memorandum affirming that no one was likely to be adversely affected as a result of retrospective effect
given thereto.
• (xvi)  Rules should conform to the principles of
natural justice. Conferring the right of being heard
to the party adversely affected by a decision of the
Executive, recording in writing the reasons for such
decision, and communicating the same to the party
concerned are the basic requirements of natural
justice.
• (xviii)  Some safeguard should be imposed before
sub-delegation is authorized to another functionary.
Report on Non-Implementation of the Various Recommendations
of the Committee (2011)
• “the recommendations of the Committee are still being followed only in breach by
various Ministries/Departments.” “This has rendered the Committee to such a
position that they have to reiterate the same recommendations again and again,
year after year and decade after decade.”

• Problems:
• Delays in
– Framing of rules. (upto 6 years)
– Publication.
– Printing of rules (“the responsibility of the Ministries does not only cease with the sending
of the notification to the press after the Rules/Regulations have been published in the
Gazette, they are also supposed to take immediate steps to examine whether the same have
been correctly printed in time, and if necessary, to issue corrigendum thereto without any
further delay.”).
– No time given to the public to render comments on draft rules.
– Badly framed rules (Hence recommend the appointment of a Law Officer in every relevant
department).
 Laying Provisions
• UK – Statutory Instruments Act 1946 – applies to all subordinate legislation
that requires to be laid before Houses of Parliament.
• General provision – Rules come into effect the moment they are laid before
the House, subject to annulment by either House of Parliament within 40 days.

• Different types of laying provisions:

• Laying with no further direction.
• Subject to negative resolution.
– Effective immediately, or
– Effective after a time period (Usually 40 days)
• Subject to affirmative resolution:
– No effect unless approved by both Houses, or
– Ceases to have effect unless approved.
• India – No General Act that regulates laying procedure. Different Acts have
different requirements.
– Section 113 of Recent Land Acquisition Act:
– “113. Power to remove difficulties. – (1) If any difficulty arises in giving effect to the
provisions of this Part, the Central Government may, by order, make such provisions or
give such directions not inconsistent with the provisions of this Act as may appear to it to
be necessary or expedient for the removal of the difficulty:…
– (2) Every order made under this section shall be laid, as soon as may be after it is made,
before each House of Parliament.”

• Delegated Legislation Provisions (Amendment) Act 1983 – 50 statutes amended

in order to included laying provisions.

• State of UP – Amendment made to General Clauses Act making it a rule of

uniform application in the State.
Procedural Controls – Procedural Ultra Vires
• Largely two requirements:
– Publication, and
– Consultation

• Publication:
– Ignorance of law is no excuse. Implies:
• That the law ought to be known, or
• That the law can be known with reasonable diligence.
 
• The particular problem of delegated legislation:
• “the first knowledge that those affected have of a rule, is usually after it
has gone into effect. The first opportunity they have to challenge it, is
usually after it is enforces against them.” (Roscoe Pound).
• UK – Statutory Instruments Act, 1946:
• “3. - (1) Regulations made for the purposes of this Act shall make
provision for the publication by His Majesty's Stationery Office of lists
showing the date upon which every statutory instrument printed and sold
by the King's printer of Acts of Parliament was first issued by that office; …
• (2) In any proceedings against any person for an offence consisting of a
contravention of any such statutory instrument, it shall be a defence to
prove that the instrument had not been issued by His Majesty's
Stationery Office at the date of the alleged contravention unless it is
proved that at that date reasonable steps had been taken for the purpose
of bringing the purport of the instrument to the notice of the public, or of
persons likely to be affected by it, or of the person charged…”
• US – Federal Register Act, 1935 – similar provisions to UK Legislation.
• Administrative Procedures Act 1946 goes a step further – generally defers effectivity of the
rules by 30 days from publication except in cases of public interest.

• Federal Crop Insurance Corpn v Merill (1947):

• Regulation published in the Federal Register in accordance with the requirements of the 1935
Act. Issue of crop insurance and exceptions promulgated by the Petitioner. Conceded fact
that the farmer in question did not know about the regulation that effected his interests.

• Opinion of the Court: ““If the Federal Crop Insurance Act had, by explicit language, prohibited
the insurance of spring wheat which is reseeded on winter wheat acreage, the ignorance of
such a restriction, either by the respondents or the Corporation's agent, would be
immaterial, and recovery could not be had against the Corporation for loss of such reseeded
wheat. Congress could hardly define the multitudinous details appropriate for the business of
crop insurance when the Government entered it. Inevitably "the terms and conditions" upon
which valid governmental insurance can be had must be defined by the agency acting for the
Government. And so, Congress has legislated in this instance, as in modern regulatory
enactments it so often does, by conferring the rulemaking power upon the agency created
for carrying out its policy. … Just as everyone is charged with knowledge of the United States
Statutes at Large, Congress has provided that the appearance of rules and regulations in the
Federal Register gives legal notice of their contents.”
• Dissenting opinion of Jackson:

• “To my mind, it is an absurdity to hold that every farmer who insures his
crops knows what the Federal Register contains, or even knows that there
is such a publication. If he were to peruse this voluminous and dull
publication as it is issued from time to time in order to make sure whether
anything has been promulgated that affects his rights, he would never
need crop insurance, for he would never get time to plant any crops.”
 India - State of Maharashtra v Mayer Hans
George (1987)
• Facts: The Respondent was convicted under Section 8(1) of the FERA for carrying gold into
India when in transit from Zurich to Manila. The RBI had granted certain exemptions to
persons who were carrying gold in transit on 25.08.48. This exemption was however
withdrawn via a subsequent notification of 08.11.48 where such persons carrying gold
had to make a declaration to that effect. The Respondent was caught on 28.11. 48.

• “8. (1) The Central Government may, by notification in the Official Gazette, order that,
subject to such exemptions, if any, as may be contained in the notification, no person
shall, except with the general or special permission of the Reserve Bank and on payment
of the fee, if any, prescribed, bring or send into India any gold or silver or any currency
notes or bank notes or coin whether Indian or foreign.”
 
• Contention of the Respondent: The notification, being merely subordinate or delegated
legislation, could be deemed to be in force not from the date of its issue or publication in
the Gazette but only when it was brought to the notice of persons who would be affected
by it.
• “the notification by the Reserve Bank varying the scope of the exemption, was admittedly
"published" in the Official Gazette - the usual mode of publication in India, … there would be
no question of individual service of a general notification on every member of the public,
and all that the subordinate law-making body can or need do, would be to publish it in such
a manner that persons can, if they are interested, acquaint themselves with its contents.
• On the argument that there was no prescribed means of publication in the Act: “Where there
is a statutory requirement as to the mode or form of publication and they are such that, in
the circumstances, the Court holds to be mandatory, a failure to comply with those
requirements might result in there being no effective order the contravention of which could
be the subject of prosecution but where there is no statutory requirement we conceive the
rule to be that it is necessary that it should be published in the usual form i.e., by
publication within the country in such media as generally adopted to notify to all the persons
concerned the making of rules. In most of the Indian statutes, including the Act now under
consideration, there is provision for the rules made being published in the Official Gazette. It
therefore stands to reason that publication in the Official Gazette viz., the Gazette of India is
the ordinary method of bringing a rule or subordinate legislation to the notice of the persons
concerned.”
• On the foreign applicability argument: “It is obvious that for an Indian law to
operate and be effective in the territory where it operates viz., the territory of
India it is not necessary that it should either be published or be made known
outside the country. … It would be apparent that the test to find out effective
publication would be publication in India, not outside India so as to bring it to
the notice of everyone who intends to pass through India… . It is, no doubt,
admitted on behalf of the prosecution in the present case that the respondent
did not have actual notice of the notification of the Reserve Bank, dated
November 8, 1962 but, for the reasons stated, it makes, in our opinion, no
difference to his liability to be proceed against for the contravention of s. 8(1)
of the Act.
• “We consider that it would be conducive to clarity as well as to the avoidance of
unnecessary technical objections giving occasion for litigation if an enactment on
the lines of the U.K. Statutory Instruments Act, 1946, were made in India
• Subba Rao’s Dissent:
• “The fact that the Reserve Bank of India published the order in the Official
Gazette does not affect the question for it need not have done so under
any express provisions of any statute or rules made thereunder. In such
cases the maxim cannot be invoked and the prosecution has to bring
home to the accused that he had knowledge or could have had knowledge
if he was not negligent or had made proper enquiries before he could be
found guilty of infringing the law.”
Harla v State of Rajasthan (1951)
Narendra Kumar v Union of India (1959)
 Raza Buland Sugar Co v Municipal Board,
Rampur (1964)
• Facts: The appellant is a public limited company and owns two sugar factories situated in the city of Rampur. The
Municipal Board of Rampur decided to impose water tax in Rampur as provided in the U.P. Municipalities Act. The
procedure for the imposition of tax by the Municipal Board under the Act is provided in Sections 131 to 135 of the
Act. Section 131 requires the Municipal Board to frame proposals and drafts of rules when it wants the State Govt
to impose any tax. Section 132 allows any affected inhabitant to file objections within 14 days to be considered by
the Board. Section 135 provides for the final notification of such a tax by the State Govt.
• Section 131(3):
• “The Board shall, thereupon publish in the manner prescribed in section 94 the proposals framed under sub-
section (1) and the draft rules framed under sub-section (2) along with a notice in the form set forth in Schedule
III.”
•  
• Section 94(3):
• “Every resolution passed by a Board at a meeting shall, as soon thereafter as may be, be published in a local
paper published in Hindi and where there is no such local paper, in such manner as the State Government may,
by general or special order, direct.”
 
• The tax here was imposed by Rampur Municipality and the notices were published in an Urdu newspaper called
"Aghaz" though the notices were in Hindi. There was in Rampur another newspaper which was published in Hindi
but its circulation was admittedly very poor.
• Issue: Whether the publication of the resolution in a local Hindi paper was a mandatory
provision.
• “The question whether a particular provision of a statute which on the face of it
appears mandatory, inasmuch as it uses the word "shall" - as in the present case - is
merely directory cannot be resolved by laying down any general rule and depends
upon the facts of each case and for that purpose the object of the statute in making the
provision is the determining factor. The purpose for which the provision has been
made and its nature, the intention of the legislature in making the provision, the
serious general inconvenience or injustice to persons resulting from whether the
provision is read one way or the other, the relation of the particular provision to other
provisions dealing with the same subject and other considerations which may arise on
the facts of a particular case including the language of the provision, have all to be
taken into account in arriving at the conclusion whether a particular provision is
mandatory or directory.
• “The provision with which we are concerned, namely, s. 131(3), can be divided into two
parts. The first part lays down that the Board shall publish proposals and draft rules
along with a notice inviting objections to the proposals or the draft rules so published
within a fortnight from the publication of the notice (see Sch. III). The second part
provides for the manner of publication and that manner is according to s. 94(3).
• On the First Part i.e. the part requiring publication: “The purpose of such publication
obviously is to further the democratic process and to provide a reasonable opportunity of
being heard to those who are likely to be affected by the tax before imposing it on them.
… In the circumstances if we are to hold that this part of s. 131(3) was merely directory,
the whole purpose of the very elaborate procedure provided in Sections 131 to 135 for
the imposition of tax would become meaningless, … We are therefore of opinion that this
part of s. 131(3) is mandatory and it is necessary to comply with it strictly before any
tax can be imposed.
• On the Second Part (the Manner of publication): “It seems to us that when the legislature
provided for the manner of publication it did not intend that that manner should be
mandatory. So long as publication is made in substantial compliance with the manner
provided in s. 94(3), that would serve the purpose of the mandatory part of the section
which provides for publication. It would therefore not be improper to hold that the
manner of publication provided in s. 94(3) is directory and so long as there is substantial
compliance with that the purpose of the mandatory part of s. 131(3) would be served.
• Hence, upheld the imposition of the tax in question.
• Mudholkar J: “While a mandatory provision must be strictly complied with, substantial
compliance is sufficient with respect to a directory provision.”
 Atlas Cycles v State of Haryana (1978)
• 3 Judges. Unanimous.

• Facts: The Petitioner was sought to be convicted for buying iron sheets at a rate higher
than the maximum statutory price fixed for such sheets by the Iron and Steel
Controller (hereinafter referred to as 'the Controller') in exercise of the powers vested
in him under Clause 15(1) of the Iron and Steel (Control) Order, 1956. This Order had
been passed under S 3 of the Essential Commodities Act. Sub-section (6) of Section 3
of the Act ordains that every order made under this section by the Central or by any
officer or authority of the Central Government ‘shall be laid before both Houses of
Parliament as soon as may be, after it is made.’ The Petitioner contended that, since
the notification fixing the maximum price for buying steel had not been laid before
both Houses of Parliament as required by the Section, it was void.

• Issue: Whether the notification fixing the maximum selling price of the commodity in
question is void for not having been laid before both Houses of Parliament.
• Though Sub-section (6) of Section 3 of the Act provides that every order made by
the Central Government or by any officer or authority of the Central Government
shall be laid before both Houses of Parliament as soon as may be after it is made,
the important point to be considered in the absence of analogous statutes like the
Statutory Instruments Act, 1946 and the Laying of Documents before Parliament
(Interpretation) Act, 1948 prescribing the conditions, the period and the legal effect
of the laying of order before the Parliament is whether the provision is directory or
mandatory.”
• Noted that (much like the Raza Buland case), even the use of the word ‘shall’ is not
conclusive in the matter.
• “Thus two considerations for regarding a provision as directory are : (1) absence of
any provision for the contingency of a particular provision not being complied
with or followed and (2) serious general inconvenience and prejudice that would
result to the general public if the act of the Government or an instrumentality is
declared invalid for non-compliance with the particular provision.
• Described the various ways through which a Rule can be laid before Parliament:
– (i) Laying without further procedure,
– (ii) Laying subject to negative resolution,
– (iii) Laying subject to affirmative resolution.

• “In the instant case, it would be noticed that Sub-section (6) of Section 3 of the Act
merely provides that every order made under Section 3 by the Central Government or
by any officer or authority of the Central Government shall be laid before both Houses
of Parliament, as soon as may be, after it is made.
– It does not provide that it shall be subject to the negative or the affirmative resolution by either
House of Parliament.
– It does not even say that it shall be subject to any modification which either House of Parliament
may in its wisdom think it necessary to provide.
– It does not even specify the period for which the order is to be laid before both Houses of
Parliament nor does it provide any penalty for non-observance of or non-compliance with the
direction as to the laying of the order before both Houses of Parliament.
– It would also be noticed that the requirement as to the laying of the order before both Houses of
Parliament is not a condition precedent but subsequent to the making of the order. In other
words, there is no prohibition to the making of the orders without the approval of both Houses of
Parliament.
– In these circumstances, we are clearly of the view that the requirement as to laying contained in
Sub-section (6) of Section 3 of the Act falls within the first category i.e. "simple laying" and is
directory not mandatory.
• “It may be asked and legitimately too that when the Parliament to keep its
control over delegated legislation directs that the rules shall be laid before
the Parliament and if that rule is construed as directory, the object itself
would be defeated. But the Parliament or the Legislature, as the case
may be if they intended to make that rule mandatory, they would have
clearly mentioned the legal consequences of its non-compliance as they
have done in other cases.

• Distinguished this case from Narendra Kumar’s case.

• Hence, upheld the validity of the Order in question.

 BK Srinivasan v State of Karnataka (1987)
• Facts: The original petitioners were residents of an area in Bangalore who objected to the construction
of high-rise buildings in their locality. Their claims were based on the Outline Development Plan (ODP)
for Bangalore that had been made under the Mysore Town and Country Planning Act, 1965. The Act in
question laid down the process through which an ODP is made. After going through several steps, the
ODP is to be published in accordance with Section 13 of the Act. S 13 (4), in particular, is as follows:
• “(4) The Planning Authority, shall then publish in the prescribed manner the Outline Development Plan
and the Regulations as approved by the Government. The plan and the particulars shall be permanently
displayed in the offices of the Director and the Planning Authority and a copy shall be kept available for
inspection of the public at the office of the Planning Authority.”

• The only other provision of the Act to which reference is necessary is, what we may call the, "Ganga"
clause, Section 76J which provides for 'Validation of acts and proceedings'. It is as follows:
“76J. Validation of acts and proceedings—No act done or proceeding taken under this Act shall be
questioned on the ground merely of, …
(e) any omission, defect or irregularity not affecting the merits of the case.”

• Note: [Similar to Article 122 (1) of the Constitution : “122. (1) The validity of any proceedings in
Parliament shall not be called in question on the ground of any alleged irregularity of procedure.”]
• Rule 33 provides for 'Publication of Outline Development Plan and
Regulations under Section 13(4)' and stipulates that the Outline Development
Plan and the Regulations as approved by the State Government under Sub-
section (3) of Section 13 shall be published in the Official Gazette.

• At every stage the public were informed by notices published in the Official
Gazette that the Outline Development Plan was available for inspection at the
office of the Planning Authority, though it is not disputed that the Plan and
the Regulations themselves were never published as such in the Gazette.

• Issue: whether the intimation to the public through the Official Gazette that
the Outline Development Plan was available for inspection at the office of the
Planning Authority is a sufficient compliance with the requirement of Section
13(4) regulating the publication of the approved Plan and Regulations?
• Note the importance of publication of delegated legislation.
• “It is, therefore, necessary that subordinate legislation, in order to take
effect, must be published or promulgated in some suitable manner, whether
such publication or promulgation is prescribed by the parent statute or not.
It will then take effect from the date of such publication or promulgation.
– Where the parent statute prescribes the mode of publication or promulgation that
mode must be followed.
– Where the parent statute is silent, but the subordinate legislation itself prescribes
the manner of publication, such a mode of publication may be sufficient, if
reasonable.
– If the subordinate legislation does not prescribe the mode of publication or if the
subordinate legislation prescribes a plainly unreasonable mode of publication, it will
take effect only when it is published through
• the customarily recognised official channel, namely, the Official Gazette or
• some other reasonable mode of publication.
– There may be subordinate legislation which is concerned with a few individuals or is
confined to small local areas. In such cases publication or promulgation by other
means may be sufficient.
• Were of the view that there had been compliance with the publication
requirements of S 13(4). Supplemented by the fact that over 600 representations
were received against the ODP when published.

• “We also desire to state that the effect of the non-performance of a duty imposed
by a statute in the manner prescribed by the statute is not discovered by a simple
answer to the question whether the statute is mandatory or directory. These are
not simple chemical reactions. The question whether a statutory requirement is
mandatory or directory cannot itself be answered easily… Many considerations
must prevail and the object and the context are the most important.

• On the ‘Ganga Clause’’(76 J): “a defective publication which has otherwise

served its purpose is not sufficient to render illegal what is published and that
such defect is cured by Section 76J.” Noted that there was sufficient publicity in
this case and the merits were not affected by minor defects.
 Consultation
• UK – not mandatory in law, but considered mandatory for all practical purposes.
• US – Administrative Procedure Act, 1946. Makes detailed provisions wrt
participation of persons in the rule-making process. Generally mandatory, unless
in cases of it being impractical, unnecessary, or contrary to public interest.
• India – No General Law, but different Acts provide for different processes wrt
consultation.
– Official Consultation with a Named Body/Statutory Body/Board: Banking Companies Act
and the RBI. Electoral Laws and the Election Commission in the RPA.
– Consultation with interested persons: Raza Buland case, BK Srinivasan.
– Preparation of Rules itself by affected persons: Mines Act, Section 60(1):
• “(1) The owner, agent or manager of a mine may, and shall, if called upon to do so by the Chief
Inspector or Inspector, frame and submit to the Chief Inspector or Inspector a draft of such bye-laws,
not being inconsistent with this Act or any regulations or rules for the time being in force, governing
the use of any particular machinery or the such adoption of a particular method of working the mine
as owner, agent or manager may deem necessary to prevent accidents and provide for the safety,
convenience and discipline of the persons employed in the mine.
 Substantive Ultra Vires
• Difference from procedural ultra vires.
• Circumstances:
– Parent Act itself unconstitutional.
• General violation of Constitutional provisions:
– FRs
– Legislative competence.
• Excessive delegation.
– Unconstitutionality of delegated legislation.
• Violation of FRs.
• Arbitrariness or unreasonability.
• Mala fide. (?)
• Exclusion of judicial review.
– Delegated legislation inconsistent with the Parent Act or other laws.
• Goes beyond Parent Act.
• Inconsistent with other existing laws.
• Illegal sub-delegation.
• Retrospectivity.
 Unconstitutionality of the Parent Act
• Chintaman Rao v State of MP (1950):
• Facts: A Notification was passed u/S 3 and 4 of the Central Provinces and Berar Regulation
of Manufacture of Bidis (Agricultural Purposes) Act, LXIV of 1948, which allowed the Dep
Commr to prohibit the manufacture of bidis during the agricultural season.
• “3. The Deputy Commissioner may by notification fix a period to be an agricultural season
with respect to such villages as may be specified therein.
• 4. (1) The Deputy Commissioner may, by general order which shall extend to such villages
as he may specify, prohibit the manufacture of bidis during the agricultural season.
• (2) No person residing in a village specified in such order shall during the agricultural
season engage himself in the manufacture of bidis, and no manufacturer shall during the
said season employ any person for the manufacture of bidis".

• Issue: Whether the Act and Notification in question amounts is violative of Article 19(1)(g)
of the Constitution.
• “The statute in sub-stance and affect suspends altogether the right mentioned in article
19(1)(g) during the agricultural seasons and such suspension may lead to such
dislocation of the industry as to prove its ultimate ruin.
• Even in point of time a restriction may well have been reasonable if it amounted to a
regulation of the hours of work in the business.
• The effect of the provisions of the Act, however, has no reasonable relation to the
object in view but is so drastic in scope that it goes much in excess of that object. Not
only are the provisions of the statute in excess of the requirements of the case but the
language employed prohibits a manufacturer of bidis from employing any person in his
business, no matter wherever that person may be residing. In other words, a
manufacturer of bidis residing in this area cannot import labour from neighbouring
places in the district or province or from outside the province. Such a prohibition on the
face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the
object which the legislation seeks to achieve.
• “The statute as it stands, not only compels those who can be engaged in agricultural
work from not taking to other avocations, but it also prohibits persons who have no
connection or relation to agricultural operations from engaging in the business of bidi
making and thus earning their livelihood.”
• Hence, struck down both the Section and the notification issued thereunder.
 Unconstitutionality of Delegated Legislation - Air India v
Nergesh Meerza (1981)

• Narendra Kumar’s case.

 Delegated Legislation being Ultra Vires the
Parent Statute
• Dwarkanath v MCD (1971)
• 3 Judges. Unanimous.

• Facts: Appellants are manufacturers of Ghee in Delhi. Food Inspectors inspected their
products, and according to the report of the Public Analysts, the sealed tin of pure
ghee from which the sample was taken had a label, but it did not conform to:
• (a) the packing and labelling Rules under the Act inasmuch as the name and business
address of the manufacturer or packer or vendor and
• (b) batch or Code numbers had not been specified on the label,
• as required under Rule 32(b) and (e) of the Rules.

• The appellants were hence prosecuted and convicted, being sentenced to pay a fine of
Rs 1 each.
• There was an address given on the label, but only “Mohan Ghee Laboratories, New
Delhi-5” was written on it.
 Relevant Provisions
• Section 23 of the Prevention of Food Adulteration Act, 1954:
• “The Central Government may, after consultation with the Committee and subject to the
condition of previous publication, make rules-…
• (d) restricting the packing and labelling of any article of food and the design of any such
package or label with a view to preventing the public or the purchaser being deceived or
misled as to the character, quality or quantity of the article;…”

• The impugned Rule 32:

• “Rule 32: Contents of the label – Unless otherwise provided in these rules there shall be
specified on every label:- …
• (b) the name and business address of the manufacturer or importer or vendor or packer, …
• (e) a batch number or code number either in Hindi or English numericals or alphabets or in
combination;…”

• Issue: whether Rule 32(b) and (e) of the Prevention of Food Adulteration Rules, 1955
(hereinafter to be referred as the Rules) is ultra vires as being beyond the rule making
power under Section 23 of the Prevention of Food Adulteration Act, 1954.
• On the Rule requiring Batch Numbers: “There cannot be any controversy that the
object of a rule framed under Clause (d) must be with a view to preventing the public
or the purchaser being deceived or misled as to the character, quality or quantity of
the article. … It is difficult for us to appreciate how the giving of the batch number or
the code number alone without giving any further particulars such as date of
manufacture of the article of food and the period within which the said article has to
be utilised, used or consumed and the quantity of the article in a container, will
prevent the public or the purchaser being deceived or misled as to the character,
quality or quantity of the article. …. We are not able to find any rational or even a
remote connection between the batch or code number artificially given by a packer
and the public or the purchaser being prevented from being deceived or misled as to
the character, quality or quantity of the article, contained in a sealed tin.
• “There is no definition of the expression "batch number" or "code number" either in
the Act or the Rules. It is also admitted that even assuming that the batch or code
number has to be given, there is no further obligation to specify in the label the date of
packing and manufacture of the article of food or the period within which the article of
food has to be utilised, used or consumed. In the absence of any obligation to give the
particulars mentioned by us above, the public or the purchaser will not be able to find
out even the freshness of the contents of a container. Therefore, it follows that merely
giving an artificial batch number or code number will not be of any use to the public
or to the purchaser. In view of all these circumstances we are of the opinion that Rule
32 (e) is beyond the rule making power even under Section 23(1)(d) of the Act. The
appellants could not be convicted for any violation of Clause (e) of Rule 32 as the said
provision, as pointed out above, is invalid.
• On the Rule requiring address of the manufacturer:
– “It is well known that in many cases in business the name
and address of a manufacturer, or importer, or vendor or
packer has become associated with the character, quality
or quantity of the article and as such we are of the
opinion that Clause (b) of Rule 32 is a valid rule.
– Noted that, though there was a technical breach of the
rule in question, there had been substantial compliance
by the appellants.
• Hence, set aside the convictions of the appellants.
 Himat Lal v Commissioner of Police,
Ahmedabad (1972)
• 5 Judges. Unanimous. Concurring Judgments of Mathew and MH Beg.

• Facts: The appellant had applied for permission to hold a public meeting (in connection with an All India
students' strike sponsored by All India Students Federation) to the Police Commissioner, which was
denied. The appellant challenged the provisions of the Bombay Police Act, 1951 and the rules framed
thereunder, which gave authority to the Police Commissioner to deny permission to hold a public meeting.

• Section 33, Bombay Police Act, 1951:

• “(1) The Commissioner and the District Magistrate, in areas under their respective charges or any part
thereof, may make, alter or rescind rules or orders not inconsistent with this Act for; …
• (o) regulating the conduct of and behavior or action of persons constituting assemblies and processions
on or along the streets and prescribing in the case of processions, the routes by which, the order in which
and the times at which the same may pass;…”

• Relevant Rules Framed under the Act:

• “6. Subject to the provisions of the foregoing rules and subject to the imposition of such conditions as,
may be deemed necessary, a permission shall be granted, unless the officer concerned is of opinion that
the procession proposed to be organised or taken out shall be prohibited,…
• 7. No public meeting with or without loudspeaker, shall be held on the public street within the
jurisdiction of the Commissionerate of the Police, Ahmedabad City unless the necessary permission in
writing has been obtained from the officer authorised by the Commissioner of Police.”
• On whether the Rules went beyond the scope of the Parent Act: “Under
Section 33(o) no rule could be prescribed prohibiting all meetings or
processions. The section proceeds on the basis that the public has a
right to held assemblies and processions on and along streets though it
is necessary to regulate the conduct and behavior or action of persons
constituting such assemblies or processions in order to safeguard the
rights of citizens and in order to preserve public order.
– “It seems to us that it follows from the above discussion that in India a citizen
had, before the Constitution, a right to hold meetings on public streets subject
to the control of the appropriate authority regarding the time and place of the
meeting and subject to considerations of public order. Therefore, we are
unable to hold that the impugned rules are ultra vires Section 33(1) of the
Bombay Police Act insofar as they require prior permission for holding
meetings.
• On whether the Rules themselves were ultra vires Article 19 (1) (b): “Rule 7 does not give
any guidance to the officer authorised by the Commissioner of Police as to the
circumstances in which he can refuse permission to hold a public meeting. Prima facie, to
give an arbitrary discretion to an officer is an unreasonable restriction. It was urged that
the Marginal Note of Section 33-power to make rules for regulation of traffic and for
preservation of order in public place, etc.-will guide the officer. It is doubtful whether a
marginal note can be used for this purpose, for we cannot imagine the officer referring to
the marginal note of the section and then deciding that his discretion is limited, specially
as the marginal note ends with ' etcetera '. It is also too much to expect him to look at the
scheme of the Act and decide that his discretion is limited. … In our view Rule 7 confers
arbitrary powers on the officer authorised by the Commissioner of Police and must be
struck down. The other Rules cannot survive because they merely lay down the procedure
for obtaining permission but it is not necessary to strike them down for without Rule 7 they
cannot operate.
• They upheld the vires of the Section itself on the grounds that the right of assembly is not
absolute.
• Hence, upheld the Section, but struck down the Rule.
V Sudheer v Bar Council of India (1999)
• Facts: The Bar Council of India Training Rules, 1995 (for short 'the rules') were amended by a resolution of the Bar
Council of India in its meeting dated 19.7.1998. The amended Rules imposed requirements of (a) an examination, and
(b) training before enrollment, before an Advocate could be enrolled at the Bar. The Petitioners challenged the vires
of these Rules.

• Rules were purportedly framed under the Advocates Act, 1961.

• Relevant Sections of the Act:

• “22. (1) There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every
person whose name is entered in the Roll of Advocates maintained by it under this Act.
•  24. Persons who may be admitted as advocates on a State Roll. - (1) Subject to the provisions of this Act, and the
rules made thereunder, a person shall be qualified to be admitted as an advocate on a State Roll, if he fulfils the
following conditions, namely:
• (a) he is a citizen of India: …
• (b) he has completed the age of twenty-one years; …
• (c) he has obtained a degree in Law: (d)[* * *] …
• (e) he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter;
…
• [(3) Notwithstanding anything contained in Sub-section (1), a person who:
• … (d) is entitled to be enrolled as an advocate under any rule made by the Bar Council of India in this behalf, may be
admitted as an advocate on a State Roll… “
• Section 24 Sub-section (1), as it stands on the statute-book on date, does not include clause (d) which was
omitted by Section 18 of amending Act 60 of 1973 with effect from 31.1.1974. his Clause (d) of Section 24(1)
as it stood originally from 1961 read as under:
• 24. (1)(d) he has undergone a course of training in law and passed an examination after such training both of
which shall be prescribed by the State Bar Council:

• 49. (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular,
such rules may prescribe: …
• [(af) the minimum qualifications required for admission to a course of degree in Law in any recognised
university;]
• (ag) the class or category of persons entitled to be enrolled as advocates;
• (ah) the conditions subjects to which an advocate shall have the right to practise and the circumstances
under which a person shall be deemed to practise as an advocate in a court;]

• 28. (1) A State Bar Council may make rules to carry out the purposes of this Chapter.
• (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provides for:
• (a)-(c)
• (d) the conditions subject to which a person may be admitted as an advocate on any such roll.

• Issue: whether the Bar Council of India Training Rules, 1995 (for short 'the rules') as amended by the
resolution of the Bar Council of India, relating to training of entrants of the legal profession are within the
competence of the Bar Council of India or are ultra vires its rule-making powers under the Advocates Act,
1961.
• “When both these provisions simultaneously existed on the statute-book from 1964 to the
beginning of 1974, it becomes obvious that the question of prescribing pre-enrolment
training and examination to be undertaken by an application for being enrolled as an
advocate on the State Roll, remained solely in the domain of the State Bar Councils
concerned and the Bar Council of India had nothing to do on this aspect of the matter.
• “It is axiomatic that these general rule-making powers in Clauses (ag) and (ah) of Section 49
necessarily did not take in their sweep the power to provide for pre-enrolment training and
examination for applicants who were seeking enrolment as advocates under the Act from
1964 to the end of 1973. It is easy to visualise that the legislature itself dispensed with the
concept of pre-enrolment training and examination for new entrants to the Bar with effect
from 31.1.1974. As noted earlier, this was done on the recommendation of the Bar Council
of India itself. Under these circumstances, it cannot be presumed that the same legislature
without expressly including the same topic in the rule-making power of the Bar Council of
India, impliedly permitted the Bar Council of India itself to prescribe pre-enrolment training
to new entrants at the Bar simultaneously with the withdrawal of the same training from
1974 onwards. … “Merely because the legislature withdrew even that rule-making power in
the light of the withdrawal of the statutory condition of enrolment by enacting (sic omitting)
Section 24(1) (d) from 31.1.1974, it could not be said that the then existing rule- making
power on other topics which was available to the Bar Council of India got enlarged or
elongated by necessary implication. The power, as couched in the same earlier existing
terms, has remained as it is after deletion of Section 24(1)(d) by Parliament.
• “the enabling power available to the Bar Council of India to make eligible
otherwise ineligible persons for enrolment as advocates under Section 24(1) did
not cover the question of pre-enrolment training and examination at all.

• A mere look at the aforesaid provision makes it clear that the rule- making
power entrusted to the Bar Council of India by the legislature is an ancillary
power for fructifying and effectively discharging its statutory functions laid down
by the Act. Consequently, rules to be framed under Section 49(1) must have a
statutory peg on which to hang. If there is no such statutory peg, the rule
which is sought to be enacted dehors such a peg will have no foothold and will
become stillborn. … We have seen earlier that neither of these statutory
provisions entitles the Bar Council of India to provide for the disqualification or
a disability or an additional condition for enrolment of a person who is
otherwise eligible to be enrolled as an advocate under Section 24(1). Once that
conclusion is reached, the very foundation for supporting the impugned Rules
gets knocked off. .... Any rule framed by the rule making authority going
beyond its statutory functions must necessarily be held to be ultra vires and
inoperative at law.
• Hence, struck down the impugned Rules.

• Remaining paragraphs note that the object of the Rules are laudable
nevertheless, and suggested by various Commissions as well. “However,
at the saying goes "a right thing must be done in the right manner."
We appreciate the laudable object with which the Bar Council of India
has framed the impugned Rules for providing training to the young
entrants to the profession by laying down details as to how they should
get appropriate training during their formative years at the Bar.
Unfortunately for the Bar Council of India, that right thing has not been
done in the right manner.”
• Suggest that appropriate amendments be made by Parliament itself.
 The Limits of Judicial Scrutiny - Maharashtra
S.B.O.S.E. v Paritosh Sheth (1984)
• 2 Judges.
• Facts: The Respondents are candidates who had appeared for the Higher Secondary Certificate and
Secondary School Certificate public examinations conducted by the Divisional Boards functioning under
the supervision and control of the Maharashtra State Board of Secondary and Higher Secondary
Education. They challenged certain Regulations passed by the State Board under Section 36 of the
Maharashtra Secondary and Higher Secondary Boards Act, 1965.

• Relevant Section:
• Section 36(1) of the Act empowers the State Board to make 'regulations' for the purpose of carrying into
effect the provisions of the Act. Sub-section (2) states that, without prejudice to generality of the
foregoing power, such regulations may provide for any of the matters enumerated in Clauses (a) to (n)
thereof.
• “(c) the general conditions governing admission of regular and private candidates for the final
examinations, and any particular conditions regarding attendance and character, on the fulfilment of
which a candidate shall have a right to be admitted to and to appear at any such examination; …
• (f) the arrangements for the conduct of final examinations by the Divisional Boards and publication of
results;
• (g) the appointment of examiners, their powers and duties in relation to the final examinations and their
remuneration;”
• Maharashtra Secondary and Higher Secondary Education Boards Regulations 1977.
•  
• “104. VERIFICATION OF MARKS OBTAINED BY A CANDIDATE IN A SUBJECT.
• (1) Any candidate who has appeared at the Higher Secondary Certificate examination may
apply to the Divisional Secretary for verification of marks in any particular subject. The
verification will be restricted to checking whether all the answers have been examined
and that there has been no mistake in the totalling of marks for each question in that
subject and transferring marks correctly on the first cover page of the answer-book and
whether the supplements attached to the answer book mentioned by the candidate are in
tact. No revaluation of the answer-book or supplements shall be done.
• …
• (3) No candidate shall claim, or be entitled to revaluation of his answers or disclosure or
inspection of the answer-books or other documents as these are treated by the Divisional
Board as most confidential.

• The High Court had struck down the Rule on the basis of it being unreasonable.

• Issue: Whether the regulations in question were ultra vires the Parent Act or the
Constitution.
• On whether ultra vires regulation-making power of the Board: the question whether a
particular piece of delegated legislation- whether a rule or regulation or other type of statutory
instrument-is in excess of the power of subordinate legislation conferred on the delegate has to
be determined with reference only to the specific provisions contained in the relevant statute
conferring the power to make the rule, regulation, etc. and also the object and purpose of the
Act as can be gathered from the various provisions of the enactment. It would be wholly wrong
for the court to substitute its own opinion for that of the legislature or its delegate as to what
principle or policy would best serve the objects and purposes of the Act and to sit in
judgment over the wisdom and effectiveness or otherwise of the policy laid down by the
regulation-making body and declare a regulation to be ultra vires merely on the ground that,
in the view of the Court, the impugned provisions will not help to serve the object and
purpose of the Act. So long as the body entrusted with the task of framing the rules or
regulations acts within the scope of the authority conferred on it, in the sense that the rules or
regulations made by it have a rational nexus with the object and purpose of the Statute, the
court should not concern itself with the wisdom or efficaciousness of such rules or regulations.
… any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires
and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or
prudent policy, but is even a foolish one, and that it will not really serve to effectuate the
purposes of the Act.

• Found Rule 104 to be rationally connected to the purposes of the Act.

• On whether the Rule was otherwise unreasonable: “The Court cannot say
that a bye law is unreasonable merely because the judges do not approve
of it. Unless it can be said that a bye law is manifestly unjust, capricious,
inequitable, or partial in its operation, it cannot be invalidated by the
Court on the ground of unreasonableness. The responsible representative
body entrusted with the power to make by laws must ordinarily be
presumed to know what is necessary, reasonable, just and fair.”

• Upheld the vires of the Rules in question.

 Retrospective Effect - BS Yadav v State of
Haryana (1980)
• 5 Judges. Unanimous.

• Facts: Controversy regarding service rules wrt the State Judicial services. Most of
the case dealt with other issues, but Wrt the retrospectivity, the relevant facts were
that one of the Rules in question, "Punjab Superior Judicial Service (Second
Amendment) Rules 1976" framed in consultation with the High Court of Punjab and
Haryana, and notified on 31 December 1976, were given retrospective effect from
April 9, 1976. Rule 12 of the Rules ran thus:
• “12. Seniority: The seniority, inter se, of the members of the service, shall be
determined by the length of continuous service on a post in the Service irrespective
of the date of confirmation;” (Date of confirmation was the earlier basis of
computing seniority)

• The Rules in question were given retrospective effect largely in order to override
the rules promulgated by the High Court.
• Court:

• “The amended Rule 12, as in force in Punjab, lays down the length of continuous service
in a cadre post as the guiding criterion for fixing seniority. That rule was notified by the
Governor on December 31, 1976 and was given retrospective effect 'from April 9, 1976.
Since the Governor exercises a legislative power under the proviso to Article 309 of the
Constitution, it is open to him to give retrospective operation to the rules made under
that provision. But the date from which the rules are made to operate must be shown
to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus
with the provisions contained in the rules, especially when the retrospective effect
extends over a long period as in this case. No such nexus is shown in the present case
on behalf of the State Government. On the contrary, it appears to us that the
retrospective effect was given to the rules from April 9, 1976 for the mere reason that
on August 25, 1976 the High Court had issued a notification fixing seniority of the
promotees and direct recruits appointed to the Superior Judicial Service of Punjab.
The notification issued by the Governor on December 31, 1976, will therefore, operate
on future appointments or promotions made after that date and not on appointments
or promotions made before that date. The seniority of all officers appointed or
promoted to the Superior Judicial Service, Punjab before Dec. 31, 1976 will be
determined by the High Court according to the criterion of the dates of confirmation,…”
• It should also be realised that giving retrospective effect to the rules
creates frustration and discontentment since the just expectations of the
officers are falsified. Settled seniority is thereby unsettled, giving rise to
long drawn-out litigation between the promotees and direct appointees.
That breeds indiscipline and draws the High Court into the arena, which
is to be deprecated.”
 Union of India v VD Dubey (2009)
• 2 Judges.

• Facts: Rule 2423A of the Indian Railways Establishment Code provided for certain concessions in
calculating the period of service for the purpose of pensionary benefits for all officers retiring after
31.3.1960. The Rule was amended on 15.11.1976 adding a proviso stating that the concession
shall be admissible only if the recruitment rules in respect of a service/post contain such a
provision. The respondent joined service on 4.8.1959 as Court Inspector in the Western Railway
and he retired from service on superannuation as Deputy Chief Vigilance Officer from Central
Railway on 31.12.1989. The respondent claimed the benefit of added years of service, but the same
was, however, denied to him. The reason for denial was that the recruitment rules in respect of his
service did not contain such a provision.

• Issue: “whether the Rule 2423A of the Indian Railway Establishment Code as amended, which
provides for adding certain period of service, to the qualifying service for superannuation pension,
would be available to those who retire from service after 31st March, 1960, irrespective of the fact
whether the recruitment rules at the time of their appointment had contained such a specific
provision or not.”
• The “amendment cannot have retrospective effect in respect of person
already in service but would be prospective; it would be applicable only to
those candidates appointed after the date of the amendment introducing the
proviso. Therefore the provision which states that the concession be
admissible only if the recruitment rule provides so, would operate only
prospectively.”

• Retrospective delegated legislation cannot deprive a person of an accrued

right vested in him.

• Soni v Air Officer Incharge (1990) – Teachers appointed under Delhi Education
Code which specified age of retirement as 60. Subsequent Delhi Education
Rules, 1973 fixed age of retirement at 58 years. SCI held Rules would not
apply to people already appointed before the enactment of the Rules.
 Retrospective Effect
• Generally prohibited, unless specifically authorised by the statute in question.
• Confined by the limitations imposed by the Statute in question.
• Authority in question must show that there was sufficient, reasonable and
rational justification to apply the rules retrospectively.
• Vested rights.
• Committee on Subordinate Legislation: “(xiv)  Retrospective effect to
Subordinate Legislation cannot be given without an express authorisation
therefor in the parent Act. Even the cases where the Government has the
power to give effect to Subordinate Legislation such powers should be
exercised only in unavoidable circumstances, and the Rules/ Regulations
framed thereunder should in each case be accompanied by an explanatory
note or memorandum affirming that no one was likely to be adversely
affected as a result of retrospective effect given thereto.”
Recapitulation – The Scope, and Limits, of
Delegated Legislation