DR.
RAM MANOHAR LOHIA NATIONAL
LAW UNIVERSITY, LUCKNOW
2020-25
Administrative Law
FINAL DRAFT
Judicial Control Over Delegated Legislation
Submitted by: Submitted To:
Devanshi Singh Dr. Rajneesh Kumar Yadav
200101061 (Administrative law Prof.)
Semester V RMLNLU
ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible without the
kind support and help of many individuals. I would like to extend my sincere thanks to all
of them.
I am highly indebted to Dr. Rajneesh Kumar Yadav for his guidance and constant
supervision as well as for providing necessary information regarding the project and also
for their support in completing it.
I would like to express my gratitude towards my parents for their kind co-operation and
encouragement which helped me in completion of this project.
My thanks and appreciations also go to my colleagues in developing the project and
people who have willingly helped me out with their abilities.
- Devanshi Singh
Table of Contents
INTRODUCTION...................................................................................................................................4
DELEGATION IMPLICATLY MEANS THE RIGHT TO REFRAIN DELEGATION.......................5
DELEGATED LEGISLATION..............................................................................................................5
JUDICIAL CONTROL............................................................................................................................6
I. When parents act ultra vires the constitution...............................................................................7
II. Where delegated legislation is ultra vires the Constitution.........................................................8
III. Where delegated legislation is ultra vires the Parent Act........................................................8
MALA FIDE............................................................................................................................................8
UNREASONABLENESS.......................................................................................................................8
CONCLUSION......................................................................................................................................10
BIBLIOGRAPHY..................................................................................................................................11
INTRODUCTION
Delegated Legislation and the Legislative Power of Administration
The legislative authority of the Administration refers to the authority granted to the
administrative authority by the Legislature to enact rules, regulations, and other measures on
certain issues. It might be described as the Executive's ability to enact laws or its
administrative authority. The short name for it is "delegated legislation." The phrase
"outsourcing of lawmaking authority" has also been used to describe it.
According to Halsbnry's Law of England, when a legislative act is made by a body other than
the legislature, it is referred to as delegated legislation. Delegated legislation, to put it simply,
is any type of lawmaking that happens outside of the Legislature. Rules, regulations,
commands, bylaws, directives, schemes, announcements, etc. are common ways to
communicate it.
According to Salmond, delegated legislation is "anything, which originates from any
authority other than sovereign power and is thus dependent on some higher or ultimate
authority for its continuous existence and legitimacy."
The phrase "delegation" is different from the word "delegate." While the definition of
"delegate" is given as "a person who is appointed, authorised, delegated or commissioned to
act in the stead of another," the term "delegation" really refers to giving someone else general
instructions with the ability to act on their behalf. In this meaning, delegated legislation refers
to giving another party, in this case administrative authorities, the power to make laws.
The phrase was defined by Jain and Jain in the following two contexts:
• the delegation by the Legislature to a subordinate agency of the legislative authority;
• The actual subsidiary regulations, which are created by the subordinate agency in
accordance with the authority described in (a).
Both interpretations are intended for the phrase. When anything is done outside of the
Legislature, it is said to be "legislation by the authority other than the Legislature."
Generally speaking, rules, regulations, orders, bylaws, directions, schemes, etc., are created
by the legislature.
DELEGATION IMPLICATLY MEANS THE RIGHT TO REFRAIN
DELEGATION
A widely held belief in the legal community is that "delegating" work to someone else does
not entail self-denial. J. Wills. Observed in Huth v. Clarke:
In my perspective, the word does not indicate or refer to a giving up of authority in its broad
meaning and as it is typically used, but rather the imparting of authority upon someone else.
As a result, the delegator does not deprive himself. Therefore, the term "delegation" also
refers to the authority to revoke a delegation.
In Roop Chand v. State of Punjab, the Supreme Court explained:
In general, a transfer of authority does not always mean a transfer of power. Except in cases
where it may already be bound by an act of its delegate, the delegating body will maintain the
right to act simultaneously on topics within the scope of the delegation as well as the right to
withdraw the grant.
However, after the delegate has used the authority granted, there is no longer room for the
delegator to revise the delegate's order. In this case, the delegate's order cannot be reviewed.
DELEGATED LEGISLATION
It is possible to distinguish between executive legislation and delegated legislation. While the
latter denotes the legislative authority granted to the Executive by the Constitution itself, the
former refers to legislation produced by authorities other than the Legislature to whom the
Legislature has delegated its legislative authority.
This means that the law created by the Executive in the exercise of the authority granted to it
expressly by the Constitution is original legislation rather than delegated legislation.
For instance, it is specifically stated that ordinances issued by the President under Article 123
or by the Governor under Article 213 have the same force and effect as laws passed by the
corresponding Legislature.
Additionally, it should be noted that even if the Law is a provision of the Constitution.
Furthermore, the constitutional validity of the delegated law is expected to follow the criteria
established by court decisions interpreting broad principles in this regard, whereas an
executive act must adhere to the constitution's requirements.
JUDICIAL CONTROL
According to Indian law, the delegated legislation is subject to judicial scrutiny by both the
Supreme Court and the High Courts. In India, the judiciary effectively controls delegated
legislation. Courts may review the legality of delegated legislation for a number of reasons.
Compared to the grounds accessible in England, these grounds are far larger. All legislation
passed in this nation must adhere to its Constitution's stipulations, particularly Chapter III.
When a legislation passed by the Executive is deemed to be against the Constitution or to be
an ultra vires of the parent Act from which the power to pass laws has been drawn, the Court
declares it to be void and unenforceable.
Delegated law in India may be invalid for any of the following reasons:
(1) The Parent Act, often known as the enabling act, violates the constitution.
(2) The subsidiary laws violate the constitution.
(3) The parent act is violated by the subordinate law.
Judicial control has been the most notable controlling measure in the control mechanism.
Two criteria are used by the judiciary to exercise control over delegated legislation:
Substantive ultra vires; and
Procedural ultra vires.
Ultra vires, which literally translates to "beyond powers," refers to subordinate legislation
that exceeds the extent of the power granted to the delegate to enact it. This is referred to as
substantive ultra vires. A fundamental legal concept states that public authorities are not
allowed to act outside of their authority and that, should they do so, "such conduct becomes
ultra vires and, thus, invalid." It has been correctly referred to as "the fundamental premise"
and "the basis of a significant portion of administrative law." Ultra vires is the legal term for
a power-exceeded act.
Procedural extra vires is the legal term for when a subordinate law is passed without adhering
to the formal standards imposed by the Parent Act or the general law. Delegated legislation
may or may not be revoked in cases of procedural ultra vires, depending on whether the
procedure is deemed to be required or advisory.
Applying the notion of supra vires allows judges to regulate delegated legislation in a variety
of situations.
I. When parents act ultra vires the constitution
The parameters within which the legislature may act are set down in the constitution. Rules
and regulations created under the parent legislation or enabling act would likewise be invalid
if they violate the constitution. If the parent act breaches I stated constitutional restrictions (ii)
implicit constitutional limits (iii) constitutional rights, it is held to be invalid.
1. Expressing a constitutional limit
If the Patent Act goes beyond the clear bounds set out by the Constitution, the rules
and regulations become invalid. Article 246 of the Constitution divides up the
legislative authority between the Union and the states. If either legislature crosses the
line separating their respective jurisdictions, which are set forth in three lists: (a) the
Union list, (b) the State list, and (iii) the concurrent list.
2. Implied Constitutional Limits
The limitations on establishing policy and translating that policy into a legally
enforceable rule or behaviour that were stated in the Delhi Laws Act case are known
as implied constitutional constraints. Legislators are not permitted to assign crucial
legislative duties to any other entity, and if they do, the Parent Act will violate the
Constitution. Accordingly, in the Delhi Laws Act case, the Supreme Court ruled that
clause 2's latter portion was unconstitutional since it gave the administrative body the
authority to repeal laws, which the Court deemed to be a crucial legislative function.
In a similar vein, the Court determined that Section 3 of the Drugs and Magic
Remedies (objectionable Advertisement) Act violates the constitution in Hamdard
Dawakhana v. Union of India because the Legislature failed to establish adequate
guidelines for the exercise of administrative discretion in choosing a disease to be
included on the list.
The Supreme Court ruled in St. Johns Teachers Training Institute v. Regional
Director, National Council for Teacher Education that delegated law is predicated on
the idea that the legislature is unable to anticipate every administrative issue that can
emerge during the application of a legislation. Delegated legislation is intended to
meet such requirements and is a complement to the enabling act, not a replacement
for it.
3. Constitutional Right
A legislation that violates the provisions of the trade clause, the right to property
under Article 300-A, or the right to life and personal freedom under Article 21 cannot
be passed by a legislature. There is even another basis for disputing the legality of the
Parent Act. Although the Act complies with legislative requirements, it still violates
Part III of the Constitution by placing what may be described as an excessive limit on
the exercise of basic rights.
II. Where delegated legislation is ultra vires the Constitution
Even when the delegated law is compatible with the parent act and the parent act is not ultra
vires the Constitution, it is possible for the delegated legislation to be declared illegal on the
grounds that it is. In Narendra Kumar v. Union of India, the Supreme Court was asked to take
this issue into consideration. In this case, the Supreme Court determined that even if the
Parent Act is constitutional. Delegated legislation's legality can nevertheless be contested on
the grounds that it cannot be assumed to authorise actions that would violate the Constitution.
III. Where delegated legislation is ultra vires the Parent Act
The authority of delegated legislation must be exercised within the authority, according to a
widely established concept. Delegated legislation can be challenged on the grounds that it is
ultra vires the Parent Act, an enabling act, or any general law. A regulation that is not
permitted by the Parent Legislation or the delegating statute cannot be made by the delegate.
Only if a piece of law is exactly in line with the authority granted can it be deemed legal. Any
rule can be contested on the grounds that it is invalid. It is a question of whether vires
whether or not delegated legislation is legal, that is, whether or not the power has been
overstepped, used in an improper manner, or is in conflict with the Parent Act.
MALA FIDE
When a rule-making body acts dishonestly or with a hidden agenda, delegated laws may be
ruled to be extra vires. However, there is no Indian example where a legislative rule has been
declared illegal due to improper use of the rule-making authority. However, if it is proven
that the body responsible for creating the regulation behaved dishonestly, the rule would be
overturned by the court.
UNREASONABLENESS
In India, courts do not consider whether a legislative regulation is fair. The Bombay Co-
operative Societies Act's Rule 36 was created, and the court was petitioned to declare it
unlawful because it was arbitrary in Mulchand v. Mukand. The Madras High Court made the
following observations in Subbarao v. I.T., which the court used to reject the argument: "A
bye-law may be attacked on the grounds of its unreasonableness, but a statutory regulation
cannot be so challenged to the same effect." The question of their reasonableness, fairness, or
appropriateness is not one for the courts to review, Commissioner, as it is "clearly known that
regulations approved to be enacted by an enactment are as effective as if there were elements
of the Act itself."
However, it may be logically inferred from various Supreme Court rulings rendered
following Maneka Gandhi v. Union of India that any administrative rule-making is subject to
challenge under the provisions of Article 14 of the Constitution on the grounds of
unreasonableness. For instance, in Air India v. Nargesh Meerza, the Court invalidated the
service regulation that called for an air hostess' employment to be terminated after the first
pregnancy. The Court determined that this regulation violated Article 14 because it was so
irrational and absurd. In a similar vein, the Court declared Rules 151(i)(ii)(b) of the Bombay
Civil Service Rules unconstitutional since they were deemed to be unreasonable. The
regulations stipulated that a guilty government worker would get Re. 1 as a subsistence
payment even while his appeal was pending. The granting of subsistence payment at the rate
of Re. 1 per month can only be described as absurd, said Justice Chinnappa Reddy. To claim
that sustenance is given when Re is given is absurd. The courts are required to consider the
reasonableness of statutory laws as well as Acts of Legislatures in one regard, but, since the
Constitution has provided certain liberties to the citizen under Chapter 19. The liberties are
not unrestricted; in the interest of the public, the Legislature may set reasonable limitations
on these rights. The appropriateness of the constraints placed on freedom will be determined
by the court.
CONCLUSION
In general, every basis for judicial review may be logically categorised as a branch of the
ultra vires concept; in the examples we have dealt with, ultra vires was the sole or primary
rationale for judicial review. In general, judicial review of delegated legislation serves more
as a symbolic check mechanism than as one with significant practical effect. Legal authority
must not be granted in two broad and generic terms in order for judicial oversight to be more
effective. In such a situation, the Court may find it very challenging to uphold a regulation as
beyond the authority granted.
BIBLIOGRAPHY
WEBSITES
1. [Link]
2. [Link]
BOOK
1. Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency, Allahabad, 2011
