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Presented By: Rupendra Singh

Asst. Professor.
 Today the question is not whether delegated
legislation is desirable or not, but what controls
and safeguards can and ought to be introduced
so that the rule making power conferred on the
administration is not misused or misapplied.
 Practice of delegated legislation is not bad but
risk of abuse are incidental to it.
 One has to find out a middle course between
two conflicting principles; on permitting very
wide powers of delegation for practical reasons
while other no new legislative bodies should be
set up by transferring essential legislative
functions to administrative authorities.
 The control must be introduced at two stages:
 Firstly, at source: the safeguards must be
provided when the legislature confers the
legislative power on the executive
 Secondly, safeguards against the misuse and
abuse of powers by the executive.
 Control on the delegated legislation may be
divided into three categories:
 Judicial Control
 Legislative Control
 Other Controls
 Delegated Legislation does not fall beyond the scope
of judicial review.
 Court can decide the validity of delegated legislation
mainly applying two tests
 Substantive Ultra Vires
 Procedural Ultra Vires
 Ultra vires means beyond power or authority or lack of
power.
 Ultra Vires related to capacity, authority or power of a
person to do an act.
 Act may be legal or illegal.
 Essence is that an act has been done in excess of power
possessed by a person.
 When an Act of Legislature enacts in excess
of power conferred on the legislature by the
constitution, the legislation is said to be ultra
vires the constitution.
 On the same principle, when the subordinate
legislation goes beyond what the delegate is
authorised to enact, it acts as ultra vires. This
is known as Ultra Vires.
 Substantive ultra vires means that the delegated legislation goes
beyond the scope of the authority conferred on it by the parent
statute or by the constitution.
 Fundamental principle is that public authority cannot act outside
the powers.
 As Schwartz states: “If an agency acts within the statutory limits
(intra vires), the action is valid; if it acts outside it (ultra vires), it is
invalid. No statute in needed to establish this; it is inherent in the
constitutional position of agencies and courts ”
 Delegate must act in good faith, reasonably, intra vires the power
granted and on relevant considerations.
 All decisions whether legislative, administrative or quasi judicial
must be in harmony with the constitution, parent Act and other
laws of land.
 If the laws are manifestly unjust or oppressive
or outrageous or directed to an unauthorized
end or do not tend in some degree to the
accomplishment of the objects of delegation
court might well say, “Parliament never
intend to give authority to make such rules;
they are unreasonable and ultra vires”
 Where parent Act is unconstitutional
 Where parent Act delegates essential legislative functions
 Where delegated legislation is inconsistent with parent Act
 Where delegated legislation is inconsistent with general
law.
 Where delegated legislation is unconstitutional
 Unreasonableness
 Malafide; bad faith
 Sub-delegation
 Exclusion of Judicial Review
 Retrospective effect
 For delegation to be valid, the first requirement is that
the parent Act or enabling statute by which legislative
power is conferred on the executive authority must be
valid and constitutional. If the delegating statute itself
is ultra vires the constitution and is bad, delegated
legislation is necessarily bad.
 Chintaman Rao v.State of M.P.AIR 1951 SC 118
 The parent Act authorised the Deputy Commissioner to
prohibit manufacturing of Bidis in some areas during
certain time. The order passed by the deputy
Commissioner under the Act was held ultra vires in as
much as the Act under which it was made violated the
Frs to carry on any occupation, trade or business,
guranteed by Art 19 (1)(g) of the Constitution.
 State of Kerala v Travancore Chemicals and Mfg.Co.(1998)8
SCC 188
 The Act of legislature provided that if any question relating to
sale of tax livable under the Act on any goods referred to the
Government, the decision of the Government thereon shall be
‘final’. Observing that there was displacement of judicial or
quasi-judicial power in the government, the SC held that
provision arbitrary and ultra vires Art. 14 of the constitution.
 When question of unconstitutionality of any legislation has
been raised, the true nature and character of the legislation
required to be ascertained. To do that one must have to regard
to the enactment as a whole, to its preamble, object scope and
effect of its provisions.

 Court need to apply the doctrine of Pith and Substance or ‘true
nature and character of the Statute.’
 Primarily and essential legislative function
cannot be delegated to any other organ of
state.
 Avinder Singh v. State of Punjab the founding
document of the nation has create three
great instrumentalities and entrusted with
them with certain basic functions abdication
of these powers by any organ would amount
to betrayal of the constitution itself and
intolerable in law. (1979)1 SCC 137
 Validity of delegated legislation can be challenged on the
ground that it is ultra vires the parent Act or enabling
statute.
 Delegated authority must be exercised strictly within
authority of law i.e. parent legislation.
 Indian Council of Legal Aid & Advice v. Bar Council of India
(1995) 1 SCC 732
 A rule was made by bar council barring enrollment as advocate of
persons who had completed 45 years of age. The parent Act
enabled the bar council to lay down conditions subject to which an
advocate “shall have right to practice.” declaring the rules ultra
vires, the SC held that the Bar Council can make the rule only after
a person is enrolled as an advocate, i.e. at post enrollment stage. It
cannot frame a rule barring persons from enrollment. The rule was
inconsistent with parent Act.
 delegated legislation, apart from being intra vires the
Constitution and consistent with the parent Act, must also
be in consonance with general law, i.e. any other law
enacted by the Legislature.
 Delegated legislation cannot be contrary to the law of
land.
 Hindustan Times V. State of U.P. (2003)1 SCC 591,
Parliament by an Act provided pension to working
journalists. The state government, by executive
instruction s imposed levy on govt. advertisements on
newspaper and deducted such levy from pension fund of
working journalists. The directive of the state government
was held beyond legislative competence and ultra vires to
the constitution.
 Sometimes a parent Act or delegating statute may be constitutional
and valid delegated legislation may be consistent with the parent
Act, yet the delegated legislation may be held invalid on the ground
that it contravenes the provision of constitution.
 Narendra Kumar v. Union of India AIR 1960 SC 430: in this case the
validity of the Non- ferrous Metal Control Order, 1958 issued under
section 3 of the Essential Commodities Act 1955 was challenged as
unconstitutional. The petitioner had not challenged validity of the
parent Act. it was argued that if the enabling Act was not considered
unconstitutional, the rules made there under could not be held to be
unconstitutional. Rejecting this ‘extravagant’ argument, the SC held
that even though a parent Act might not be unconstitutional, an
order made there under can still be unconstitutional and can be
challenged as violative of the provisions of the constitution.
 A regulation framed by Air India providing
that services of an Air Hostess could be
terminated if she became pregnant was held
arbitrary, unreasonable and violative of Art 14
and 15
 It is well settled that the bye-laws made by
corporations and local authorities or by delegate may
be declared ultra vires on the ground of
unreasonableness.
 Lord Russell C.J. Propounded:
 “If for instance they (bye laws) were found to be
partial or unequal in their operation as between
different classess; if they were manifestly unjust; if
they disclosed bad faith, if they involve such
oppressive or gratuitous interference with the rights
of those subject to them as could find no justification
in the minds of reasonable men, the court upheld the
bye-law, but observed that the validity of delegated
legislation can be questioned on the ground of
unreasonableness. ”
 Apex court ruled that subordinate legislation
does not enjoy the same degree of immunity as
substantive legislation enjoys. Unreasonableness
is one of the grounds of judicial review available
at test validity of delegated legislation. If a
delegate intends to impose a condition, which is
unreasonable, it cannot be geld legal and valid.
 Air India v. Nargesh Mirza
 In England any law passed by the legislature cannot
be questioned in court on the ground that same was
passed with improper motive.
 But whenever legislative confers power to
administrative body such powers must be exercised in
good faith.
 Same position is reiterated in India.
 Sukhdev Singh V. State of Punjab AIR 1963SC 365
Under PRPSU Tenancy Lands Act, 1955, rules were
framed by state govt. it was contented that the
powers conferred are arbitrary and same was in
malafide exercise by statutory bodies. Same was
rejected by the court.
 Assuming that sub-delegation is permissible
under the parent Act. There are certain
limitations on to it:
 Sub-delegation to authorities of a particular rank was
permitted in the parent Act but power exercise by
some other authority.
 Case Ajab Singh v.Gurbachan Singh AIR 1965 SC 1619.
U/s 3 of the Defence of India Act, 1962 the Central
government was empowered to make rules
authorizing detention of persons by an authority not
below the Rank of District Magistrate. Power was
exercised by ADM hence ultra vires.
 Sub-delegate cannot act beyond the power
conferred on him by the delegate.
 Blackpool Corporation V. Locker
 If some conditions are imposed by the
delegate which must be complied with by the
sub-delegate before exercise power, those
conditions must be fulfilled; other wise
exercise of power will be ultra vires.
 In England and In America it is well established practice
that a judicial or quasi-judicial power conferred on a
particular authority by a statute must be exercised by that
authority and cannot be delegated to any one unless such
delegation is authorized by the statute either expressly or
impliedly.
 In Morgan V. US: it has been observed by the Lord Smith:
that the maxim (delegatus non protest delegare) is applied
with the utmost rigour to the proceedings of the ordinary
courts, and in the entire process of adjudication a judge
must act personally, except insofar as he is expressly
absolved from his duty by statute. Only in very exceptional
circumstances may judicial functions be sub-delegated in
the absence of express authorization.
 Same principle has been accepted in India as a basic
principle. Views of Justice Smith is adhered by the J.
Hidayutullah.
 Case: Gullapali Nageshwar Rao v. APSRTC AIR 1959 SC 308
Under the relevant Act and Rules the Minister was
empowered to hear the parties and to pass the final order,
but he delegated his function to his secretary, who heard
the parties and put up a note before minister for final
decision and order was passed by the Minister. Subba Rao
J. observed that it was not a judicial hearing. If one person
hears and another decides, personal hearing becomes an
empty formality.
 Sub-delegation of administrative power.
 Rule of law has always recognised the power
of judiciary to review legislative and quasi-
legislative.
 The Validity of delegated Legislation can be
challenged in a court of law.
 In an Act provision may be made that rules,
regulations, bye-laws etc. made under it,
“shall have effect as if enacted in the Act”,
“shall be final;” “Shall be conclusive”; “shall
not be called in question in any court of law”.
 Sometimes, provisions are made in s statute by which
orders passed by administrative tribunals or other
authorities are made “Final.” This is called as “Statutory
Finality.” Such clauses are of two types:
 Sometimes no provision is made for filing any appeal, revision,
or reference to any higher authority against an order passed by
the administrative tribunal or authority; and
 Sometimes an order passed by the administrative authority or
tribunal is made final and jurisdiction of civil court is expressly
ousted.
 With regard to the first type of ‘finality’ there can be no
objection, as no one has an inherent right of appeal. It is merely
a statutory right and if the statute does not confer that right on
any party and treats the decision of lower authority as “final”,
no appeal can be filed against that decision.
 With regard to second type of finality, the
provisions are made to exclude jurisdiction of
civil courts. And even though the subject matter
of the dispute may be of civil nature and thus
covered by section 9, a civil suit is barred by the
statutory provisions. For Example :S. 170 of RP
Act.
 No civil court shall have jurisdiction to question the
legality of any action taken or of any decision given by
the returning officer or by any other person appointed
under this Act in connection with an election.
 In such cases the correct legal position is that the
jurisdiction of a civil court may be ousted either
expressly or by necessary implication. But even in the
cases where jurisdiction of the civil court is ousted , it
has jurisdiction to examine the cases where the
provisions of the Act and rules made there under have
not been complied with, or the order passed by the
tribunal is a purported order, or the statutory
authority has not acted in conformity with the
fundamental principles of natural justice or decision is
based on no evidence etc. In all these cases, the order
cannot be said to be under the Act but is really de hors
the Act and the jurisdiction of civil court is not ousted.
 One way of excluding judicial scrutiny has
been noticed in extending special probative
force to certain administrative actions.
 Section 35 of the Companies Act, 1956 treats
a certificate of incorporation given by the
Registrar to be conclusive evidence that all
the requirements of the Act have been
complied with.
 Modern legislation has adopted itself toteh wide variety of
remedies available in administrative law, and has evolved a
comprehensive provision that the Acct or order to be
protected “shall not be questioned in any legal proceedings
whatsoever.”
 India General Navigation & Rly Co. Ltd. V. Workmen AIR
1960 SC 219, An award was made by the Industrial Tribunal,
Assam under Indian Disputes Act, 1947. it was publishd in
accordance with section 17 A of the Act. Section 17 (2) of the
Act provided that the award published under section 17(1)
“shall be final and shall not be called in question by any
court in any manner whatsover.” Same was challenged in SC
by SLP under Art 136. Court declare that this provision is
itself against the constitution.
 The underlying object if this ancient formula is
to protect all rules, regulations or bye laws
framed or notifications issued under the Act
which are in the nature of delegated legislation
or orders passed or actions taken there under.
Such provisions cloth subordinate legislation
with the force of the provisions of parent Act and
all actions are to be effective “as if enacted in
the Act”. Their legality and validity can be
questioned in the same way as the legality and
validity of the Act itself.
 At times, a parent statute prevents an act
done or proceedings taken merely on the
ground of irregularity not affecting the merits
of the case. Such clause is described as
“omnibus curative clause” or “Ganga Clause ”
and is permissible in law.
 Delegated legislation cannot be in retrospective in
operation unless specific power was conferred by the
parent Act.
 In State of M.P. v. Tikamdas, the Supreme Court
observed: “There is no doubt that unlike legilsation
made by soverign legislature, subordinate legislation
made by a delegate cannot have retrospective effect
unless the rule making power in the concerned statute
expressly or by necessary implication confers powers
in that behalf”
 Vijayalaxmi Rice Mills v. State of A.P. (1976)3SCC 37
 An action which is UV is without jurisdiction, null and
void, and of no legal effect . It has no legal leg to
stand. Once the court declares that some
administrative act is legally a nullity, the
consequences is that such act has not happened at all.
 There is no question of Estoppels against the UV Act.

 Case: Lohia Machines Ltd. V. Union of India (1985) 2


SCC 197 The Supreme Court observed: if a rule made
by a rule making authority is outside the scope of its
power, it is void and it is not at all relevant that its
validity has not been questioned for a long period of
time; if a rule is void it remains void whether it has
been acquiesced or not.
 A delegated legislation may be partially good
and partially bad. If both the parts good or bad
are severable, the instrument cannot be struck
down as a whole. In such case, legal invalid part
can be forced ignoring the valid part.
 It has been said, “unless the invalid part is
inextricably interconnected with the valid, the
court is entitled to set aside or disregard the
invalid part, leaving the rest intact; which is
known as blue pencil test. ”
 When a delegated legislation fails to comply
with procedural requirements prescribed by the
parent Act or by general law, it is known as
procedural ultra vires.
 While framing rules, bye laws, regulations etc.
the parent Act or enabling statute may require
the delegate to observe a prescribed procedure,
such as holding of consultations with particular
bodies or interests, publication of draft rules or
bye laws, laying them before parliament .
 Failure to comply with the requirement may
invalidate the rules so framed.
 Procedural UV depends on the mandatory and
directory requirements.
 Non-compliance with a directory requirements
do not invalidate a legislation but failure to meet
with a mandatory one does.
 It is well settled rule that an absolute enactment
must be obeyed or fulfilled exactly but it is
sufficient if a directory enactment be obeyed or
fulfilled substantially.
 1. Publications
 2. Consultation
 Publication:
 Underlying principle is ignorantia facit excusat
ignorantia juris non execusat.
 A law passed by the parliament receives sufficient
publicity against a delegated legislation.
 Roscoe Pound observes, “the first knowledge that
those affected have of a rule, is usually after it has
gone into effect. The first opportunity they have
challenge it, is usually after it is enforced against
them ”
 In England, by Rules Publication Act, 1893
certain provisions were made for giving of
notice and inviting representations from
interested public bodies.
 Under Statutory Instruments Act, 1946
certain provisions were made with a aview to
ensure that public would be aware of
delegated legislation.
 Before 1935, there was no machinery for
publication of delegated legislation in the US.
 But after the Panama Case wherein the court
found that there was no adequate publication of
delegated legislation where as the Federal
Register Act was passed in 1935 which required
the publications of all regulation.
 Hotch Vs. US (1954)212F2d 280 A circular court
hold that if a regulation was not published in the
federal register in accordance with Act of 1935, it
was invalid.
 Unlike UK and USA there is no statutory
provisions requiring publication of delegated
legislation. Yet the courts have treated some
sort of publication of delegated legislation as
an essential requirement for its validity.
 Harla v. State of RajasthanAIR 1951 SC 467
 The legislation is question passed by the
Council was neither published nor was it
made known to the general public through
any other means. Holding its publication
necessary and applying the principles of
natural justice.SC observed: A decision
reached in secret affect their lives, liberty and
property. Promulgation or publication of
some reasonable sort is essential.
 As a rule, a distinction must be drawn between
publication of delegated legislation and the mode,
manner or method of publication. Even if a
requirement of publication is held to be mandatory,
the mode of manner of publication may be held to be
directory and strict compliance thereof may not be
insisted.
 In the case of Raza Buland Sugar Co., the SC held that
the statutory provision requiring publication of rules
before imposition of tax was mandatory, but the
manner in which the rules were required to be
published was directory, and there was substantial
compliance with requirement of publication, the rules
were valid.
 Goind Lal Changa Lal Patel v. Agricultural
Produce Market Committee: Publication was
required in Gujarati SC held that requirement
of publication in Gujarati is mandatory.
 Once delegated legislation has been
published or promulgated, it takes effect
from the date such publication.
 In Pankaj Jain Agencies v. Union of India, the
notification was published in the official
gazatte on Feb 13, 1986 prescribing rates of
custom duty which were to be come in force
from Feb 19, 1986. Notification was declared
valid.
 Difference between publication of normal
legislation and of a delegated legislation.
 If a delegated legislation is not published at all,
the defects goes to the root and makes the
instrument non est, ineffective and of no
consequence.
 But if it is not published in a particular manner, it
would not necessarily make the instrument void.
 Effect to publish in the manner provided by law
would be considered by the court.
 Sometimes a statute or an Act itself provides that no act
done or proceeding taken shall be called in question
merely on the ground of any defect or irregularity in such
act or proceeding, not affecting the merits of the case.
This is known as conclusive evidence clause or Ganga
Clause.
 In B.K. Srinivasan v. State of Karnataka, AIR 1987 SC
1059 there was defect in publication of Outline
Development Plan and Regulations. Section 76J of the
parent Act however, contained a ganga clause, which
validate all defects in publication. The Supreme Court
upheld the legislative device and object underlying therein
to put beyond challenge defects of procedure which had
not resulted in substantial prejudice or miscarriage justice.
 It implies a conference of two or more
persons or an impact of two or more minds in
respect of a topic in order to enable them to
evolve a correct or, at least satisfactory
solutions of a problem.
 One way of avoiding a clash between
department exercising legislative powers and
the interest most likely to be affected is to
provide some form of consultation.
 Consultation does not mean consent or
concurrence. It however postulates full and
effective deliberations, exchange of view
points, meeting of minds and examination of
relative merits of the other point view.
 In England, there is no statutory provision
requiring consultation of affected interest
before making subordinate legislation but
later made mandatory.
 With Regard to the absence of statutory
provisions requiring consultations, the Lord
Chancellor says: We no longer promulgate
the regulations or rules in the Gazette and
wait for representations to be made. We go
to the trade or interest, concerned and deal
with it by getting them round the table,
hearing what they say , and drafting the rules
after obtaining their view.
 Ordinary Types of Consultation
 Individual objection
 Consultation with specified interest.
 Extra ordinary Types of Consultation
 Preparation by affected groups.
 Approval by Statutory authority.
 No general statutory provision requiring
consultation with the affected interests in the
making of delegated legislation.
 Official Consultation Ex. Sec. 52 of the Banking
Companies Act,1949
 Consultation with Statutory bodies
 Consultations with advisory bodies
 Draft rules by affected interests
 Chandrmauleshwar v.High Court of Patna
(1970) 2 SCR 666
 SC held that before making an appointment
of a DJ, consultation with high court is
mandatory.
 Hindustan Zinc Ltd. V. Andhra Pradesh State
Electricity Board:
 Parliament indeed can delegate their law
making power upon any one.
 Justice Krishna Iyer rightly stated that
Parliamentary control over delegated
legislation should be a living continuity as a
constitutional necessity.
 Therefore, parliament need to check that
powers so conferred are properly discharged.
 Laying on Table
 Scrutiny Committees.
 Laying on Table : All common wealth countries
followed it. It serves two purpose:
 It inform the legislature about the rule made by
delegate.
 It gives an opportunity to legislature to question or
challenge the rules already made or proposed to be
made.
 Through this a safety valve; legislature exercises
supervision, check and control over executive rule
making.
 Laying without further provision of control.
 Laying with deferred operation
 Laying with immediate effect but subject to
annulment
 Laying in draft but subject to resolution that no
further proceedings be taken
 Laying in draft and requiring affirmative resolution
 Laying with operation deferred until approval given
by affirmative resolution
 Laying with immediate effect but requiring
affirmative resolution as a condition for continuance
 In India there is no statutory provision requiring
laying laying.
 According to committee on Delegated
Legislation, the statute contain the four
methods of laying:
 Requirement of mere publication of rules in official
gazette.
 Requirement of such publication and laying on table
 Modifications by parliament
 Requirement of laying of rules for a specified period
before they published in official gazette.
Scrutiny Committees
 The Lok Sabha Committee on Subordinate Legislation

 The Rajya Sabha Committee on Subordinate Legislation

Functions of the Committee

Important observations, recommendations and directions


by the Committee on Subordinate Legislation, regarding its
working
 They act as watch dog which bark and arouse their master
from slumber when they find that an invasion on the premises
has taken place.
 USA- Control is highly  Reorganization Acts of
limited 1939 to 1969.

 England- Control is very  Statutory Instrument Act,


broad and effective 1946

 India- Control is effective  Delegated Legislation


Provisions (Amendment)
Act, 1983

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