SCHOOL OF LAW

GURU GHASIDAS VISHWAVIDYALAYA, BILASPUR (C.G.)

(A Central University)

SESSION 2019-
2020

PROJECT ON

JUDICIAL
CONTROL OVER DELEGATED LEGISLATION

SUBMITED BY.

HEMU BHARDWAJ

STUDENT OF B.A. LLB, 5TH SEMESTER

ROLL NO. 17001251

UNDER THE GUIDANCE OF

PROF AJAY SINGH

SUBJECT:- ADMINISTRATIVE LAW

ACKNOWLEDGEMENT

I would like to express my deepest and earnest gratitude to, PROF. AJAY SINGH
faculty for ADMINISTRATIVE LAW, School of Law, for giving me this opportunity
to do a project on such a valuable topic of JUDICIAL CONTROL OVER

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DELEGATED LEGISLATION I am grateful for the assistance, guidance, and
support that were extended during the course of excellent research. I am also thankful
to the college administration for providing the resources necessary for thee research
work. I thank my parents and friends their moral support and love throughout my
research work and project preparation. Above all I thank the God almighty for
blessing me with the health and the vitality to complete this project.

HEMU BHARDWAJ
ROLL NO- 17001251
B.A.LLB
5TH SEMESTER

CERTIFICATE

I am glad to submit this project report on JUDICIAL CONTROL OVER

DELEGATED LEGISLATION as a part of my academic assignment. The project is
based on research methodology and further discusses the interview method. I think

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this would be significant for academic purposes as well as prove information to all the
readers. Here though I declare that this paper is an original piece of research and the
borrowed text and ideas have been duly acknowledged.

HEMU BHARDWAJ FACULTY SIGN

ROLLNO.-17001251
B.A.LLB 5TH SEMESTER

DECLRATION

I, HEMU BHARDWAJ, Roll No.17001251, B.A.LLB 5 TH Semester of the

GURU GHASIDAS UNIVERSITY do hereby declare that, this project is my
original work and I have not copied this project or any part thereof from any source

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without acknowledgement. I am highly indebted to the authors of the books that I
have referred in my project as well as all the writers of all the articles and the owners
of the information taken from the website for it. It is only because of their
contribution and proper guidance of my faculty advisor PROF. AJAY SINGH that I
was able to gather light on the subject.

HEMU BHARDWAJ

Roll. No.-17001251
B.A,LL.B.
5TH SEMESTER

INTRODUCTION

Legislative Power of Administration—Delegated Legislation

Legislative power of the Administration means the power given to the

administrative authority by the Legislature to make rules, regulations, like

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 provisions on certain matters. It may be defined as the law- making power of the
Executive or administrative authority. It is briefly known as "delegated
legislation". It has also been described as "outsourcing of law-making power".

Halsbnry's Law of England, explains that when an instrument of a legislative nature

is made by authority other than the Legislature, it is called delegated legislation. To
put in simple terms delegated legislation refers to all law-making, which takes
place outside the Legislature. It is generally expressed as rules, regulations, orders,
by-laws, directions, scheme, notifications, etc.

Salmond puts delegated legislation as—

“that, which proceeds from any authority other than sovereign power and is
therefore, dependent for its continued existence and validity on some superior or
supreme authority.”

The word 'delegate' is distinguished from the term 'delegation'. While delegate' is
stated to mean a person who is appointed, authorized, delegated or commissioned
to act in the stead of another, the term "delegation" means instructing another with
a general power to act for the good of those who depute him or it means transfer
of authority by one person to another. In this sense, delegated legislation means he
conferring authority of law-making upon someone else, i.e., on administrative
authorities.

Jain and Jain explained the expression in the following two senses :

 the exercise by a subordinate agency of the legislative power, delegated to it

by the Legislature;
 the subsidiary rules themselves, which are made by the subordinate agency,
in pursuance of the power as mentioned in (a).

The expression is meant to have both the meanings. It may be stated to be

"legislation by the authorities other than the Legislature", which takes place outside
the Legislature and is generally expressed as rule, regulation, order by-law,
direction, scheme, etc.

DELEGATION IMPLIES THE POWER TO WITHDRAW

DELEGATION
It is said to be an accepted position in law that to 'delegate' to another is not to

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denude yourself. Wills, J. in Huth v. Clarke, observed :

In my opinion the word in its general sense and as generally used, does not imply
or point, to a giving up of authority, but rather the conferring of authority upon
someone else. Thus, the person delegating does not denude himself. 'Delegation',
therefore, implies also the power to withdraw delegation.

The Supreme Court in Roop Chand v. State of Punjab, explained :

In general, a delegation of power does not imply parting with authority. The
delegating body will retain not only power to revoke the grant, but also power to
act concurrently on matters within the area of delegated authority except in so far
as it may already have become bound by an act of its delegate.
However when the delegate has exercise the power delegated ,there would be no
scope for revision of the order of the delegate by the delegator, such a situation, is
also cannot review the order of the delegate.

DELEGATED LEGISLATION

Delegated legislation may be distinguished from Executive Legislation. The

former refers to the legislation made by the authorities other than the Legislature
to whom the Legislature delegates its legislative power, while the latter stands for
the legislative power conferred on the Executive by the Constitution itself.

It thus follows that the legislation made by the Executive in the exercise of power
confers on it expressly by the Constitution, is not delegated legislation, but strictly
speaking, it is original legislation.

For instance, Ordinances promulgated by the President under Article 123 or by the

Governor under
Article 213 are expressly declared to have the same force and
effect as a law enacted by the respective Legislature.18

It may further be stated that while the Legislation is a provision of the

Constitution. Further, that delegated legislation to be constitutionally valid is to
comply with the guidelines traced through judicial pronouncements interpreting
general principles in this respect while a piece of Executive Legislation is required
to be consistent with the provisions of the constitution.

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 JUDICIAL CONTROL
Under Indian Law.—The delegated legislation does not go beyond the reach of the
judicial review of the Supreme Court and of the High Courts. Judiciary exercises
effective control over delegated legislation in India. The validity of delegated
legislation can be examined by the courts on several grounds. These grounds are far
wider than the grounds available in England. All laws made in this country shall
have to conform to the provisions of the Constitution including Chapter III thereof.
Whenever a law made by the Executive is found to be inconsistent with the
Constitution or ultra vires the parent Act, from which the law-making power has
been derived, it is declared null and void by the Court. The power of examining the
validity of delegated legislation in India, has been vested in the Supreme Court and
the High Courts.
In India the invalidity of delegated legislation may arise from any of the following
reasons :
(1) The Enabling Act or Parent Act ultra vires the constitution.
(2) The subordinate legislation ultra vires the constitution.
(3) The subordinate legislation being ultra vires the Parent Act.

In the control-mechanism, judicial control has emerged as the most outstanding

controlling measure. Judicial control over delegated legislation is exercised by
applying two tests :
 Substantive ultra vires; and
 Procedural ultra vires.

Ultra vires means beyond powers, when a subordinate legislation goes beyond the
scope of authority conferred on the delegate to enact, it is known as substantive ultra
vires. It is a fundamental principle of law that a public authority cannot act outside
the powers and if the authority acts, 'such act becomes ultra vires and, accordingly
void'. It has been rightly described as 'the central principle' and 'foundation of large
part of administrative law'. An act which is done in excess of power is ultra vires.
When a subordinate legislation is enacted without complying with the procedural
requirements prescribed by the Parent Act or by the general law, it is known as
procedural ultra vires. In case of procedural ultra vires, the Courts may or may not
quash delegated legislation as it depends upon the circumstances whether the

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procedure is held to be mandatory or directory.
Judicial control over delegated legislation is exercised by applying the doctrine of
ultra vires in a number of circumstances.

I.When parents act ultra vires the constitution

The constitution prescribes the boundaries within the legislature can act. If the
parent act or enabling act ultra vires the constitution the rules and regulations made
thereunder would also be null and void. The parent act declared to be null and void if
it violates (i) express constitutional limits , (ii) implied constitutional limits (iii)
constitutional rights
(I) Express Constitutional Limit:
Invalidity of the rules and regulations arises if the Patent Act is violative of express
limits prescribed by the Constitution. The legislative powers of the Union and the
state list are distributed in Article 246 of the Constitution. If either legislature
enroaches upon the exclusive sphere of the other as demarcated in three Lists : (a)
Union list; (b) State list ; and (iii) concurrent list. its legislation will be ultra vires.
(ii) Implied Constitutional Limits
Implied Constitutional limits are those which were enunciated in Delhi laws act case,
viz., laying down policy and enacting that policy into a binding rule conduct.
Legislature cannot delegate essential legislative function to any other agency and If it
is so delegates the Parent Act will be ultra vires the Constitution. On this principle, in
Delhi Laws Act case, the Supreme Court declared the later part of clause 2 bad
because it conferred power on the administrative agency to repeal a law which,
according to the Court, is an essential legislative power. Similarly, in Hamdard
Dawakhana v. Union of India,“ the Court held Section 3 of the Drugs and Magic
Remedies (objectionable Advertisement) Act ultra views the constitution because the
Legislature had not laid down sufficient guidelines for the exercise of administrative
discretion in selecting a disease to be included in the list.
In St. Johns Teachers Training Institute v. Regional Director,National council for
Teacher Education, the Supreme Court has laid down that delegated legislation is
based on the assumption that legislature cannot possibly foresee every administrative
difficulty that may arise in operation of statute. Delegated legislation is designed to
fulfill those needs and is meant to supplement and not supplant the enabling statute.
(iii) Constitutional Right

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No legislature has competence to pass a law violative of the provision of the
commerce clause, Right to property under Article 300-A or Right to life and persons
liberty under Article 21. Moreover, there is another ground on which the validity of
Parent Act may be challenged. although the statute is well Within the legislative
compliance, yet violates the provisions of Part III of the Constitution by imposing
what may be called an unreasonable restriction on the enjoyment of fundamental
rights.” In Chintaman Rao v. State of Madhya Pradesh, the Parent Act conferred
power on the Deputy Commissioner to prohibit the manufacture of bidis in notified
areas during the agricultural season as fixed by him. The Deputy Commissioner
imposed a total ban on the manufacture of bidis. The order passed by the Deputy
Commissioner was held ultra vires inasmuch as the Act under which it was made
violated the fundamental right to carry on trade, business, profession and occupation
guaranteed under Article 19 (1) (g) of the constitution . In the opinion of the Court the
order imposed unreasonable restrictions on the exercise of fundamental right.
II. Where delegated legislation is ultra vires the Constitution
Sometimes it may happen that parent act may not be ultra vires the constitution and
delegated legislation may be consistent with the parent act, yet the delegated
legislation may be held invalid on the ground that it is ultra vires the Constitution. It is
precisely this point which the Supreme Court was called upon to consider in
Narendra Kumar v. Union of India.“ In this case the Supreme Court held that even if
the Parent Act is Constitutional. the validity of delegated legislation can still be
challenged on the ground that the law cannot be presumed to authorise anything
which may be in contravention of the Constitution.
In Dwarka Prasad v. State of Uttar Pradesh, the UP. Control Order was made under
the Essential Supplies (Temporary Powers) Act, 1946. Although the Parent Act was
Constitutional, yet clause 3 (2) (b) of the Order was held ultra was by the Supreme
Court as it violated Article 19 (1) (g) of the Constitution of India by imposing
unreasonable restriction on the right to carry on trade and business. Clause 3 (1) of
the Order provided that no one can carry on business in Coal except under a license.
Clause 3 (2) (b) further laid down that the State Coal Controller can exempt any
person from the license requirement. The Court held that clause 3 (2) (b) was ultra
vires Articles 19 (1) (g) as it confers arbitrary powers on the executive in granting
exemptions.
III. Where delegated legislation is ultra vires the Parent Act

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Delegated legislation can be challenged on the ground that it is ultra vires the Parent
Act or enabling statute or any general law.” It is an accepted principle that the
authority of delegated legislation must be exercised within the authority. The delegate
cannot make a rule which is not authorised by the Parent Statute or delegating statute.
Delegated legislation or subordinate legislation can be declared valid only if it
conforms exactly to the power conferred. Rule is always open to challenge on the
ground that it is unauthorised. The validity of delegated legislation is a matter if vires,
that is. whether or not the power has been exceeded or otherwise wrongfully exercised
or is inconsistent with the Parent Act.
In Additional District Magistrate (Rev) v Sri Ram, the Supreme Court held that the
conferment of rule-making power by an Act does not enable the rule-making authority
to make a rule which travels beyond the scope of enabling Act. In this case Delhi
Land Revenue Act and Delhi reforms Act did not empower rule-making authority to
classify land or to exclude any area from preparation of record of right and annual
register. However, rules made under Act in 1962 classified land into six categories
and provided that the name of tenure holder or sub-tenure holder occupying land in
‘extended abadi' and in prescribed six categories  land will not be reflected in the
record of right and annual register. The Court held that the rules are ultra vires the
parent/enabling Act.
In Kunj Behari Lal Butel v. State of H.P, the Apex Court held that the administrative
authority (in this case state) cannot bring within the net of the rules what has been
excluded by Act itself. In this case H.P. Ceiling on Land Holdings Act, 1972 had
delegated to the State Government the power to make rules for the purpose for
carrying out the purposes of this Act.‘ The Act by Section 5 trade exempted 'The
Estates and land subservient thereto" from the operation of the Act. However, rules
framed by the State Government had put embargo on the transfer of land subservient
to estates. Accordingly, the rules were held ultra vires the Parent Act being
inconsistent and repugnant to it repugnant to it.
MALA FIDE

Delegated legislation may be declared ultra vires if the rule-making authority

exercises its power mala fide or acts with an ulterior motive. There is, however, no
Indian case where a statutory rule has been held invalid on the ground of mala

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fide exercise of the rule-making power. But if it is established that the rule-making
authority has acted with ulterior motive, the court would reject the rule.

UNREASONABLENESS

In India the courts do not examine the reasonableness of a statutory rule. In

Mulchand v. Mukand, the court was asked to hold Rule 36 made under the Bombay
Co-operative Societies Act invalid on the ground that it was unreasonable. The court
rejected the plea observing that a bye-law may be challenged on the ground of its
unreasonableness, a statutory rule cannot be so challenged to the same effect are the
observations of the Madras High Court in Subbarao v. I.T. Commissioner, "it is
well established that rules authorised to be made by an enactment are as effectual as
if there were parts of the Act itself, the question of their reasonableness, fairness or
propriety not being a matter for the courts to investigate." But in view of some
decisions of the Supreme Court after Maneka Gandhi v. Union of India, it can be
reasonably concluded that any administrative rule-making can be challenged on the
ground of unreasonableness within the purview of Article 14 of the Constitution. For
example, in Air India v. Nargesh Meerza, the Court quashed the service regulation,
which provided for termination of services of an air hostess on the first pregnancy.
The Court held this regulation as most unreasonable and arbitrary and therefore
violative of Article 14. Similarly the Court struck down Rules 151(i)(ii)(b) of the
Bombay Civil Service Rules holding them to be unreasonable and therefore void.
The rules provided that a convicted government employee will be paid Re. 1 as
subsistence allowance even during the pendency of his appeal. Justice Chinnappa
Reddy remarked: 'the award of subsistence allowance at the rate of Re.1 per month
can only be characterized as ludicrous. It is mockery to say that subsistence is
awarded when the award is Re. 1 a month." In one respect, however, the courts are
bound to examine the reasonableness of statutory rules as well as Acts of
Legislatures. The Constitution has guaranteed certain freedoms to the citizen under
Article 19. The freedoms are not absolute, the Legislature is permitted to impose
reasonable restrictions in respect of these rights generally in the interest of the
public. It is for the court to determine as to whether the restrictions imposed on the
freedom are reasonable

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 CONCLUSION

Generally speaking, any ground on which judicial review may be justified can
logically be classified as a branch of ultra vires doctrine ; here we have dealt

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with straight forward cases where ultra vires was the solitary or principal
justification for judicial review. On the whole, judicial review of delegated
legislation is more of symbolic value rather than of much practical value as a
control mechanism over delegated legislation. To make judicial control more
efficacious it is necessary that delegating legislation does not confer power in two
broad and generalized languages. In such a case the Court may find extremely
difficult to hold a rule as falling outside the scope of power delegated. This is what
is envisaged by the doctrine of excessive delegation. In that case, delegated
legislation will be ultra vires if it goes beyond basic policy underlying the Parent
Act passed by the legislature.

BIBLIOGRAPHY

WEBSITES

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1.https://blog.ipleaders.in/delegated-legislation/
2. https://blog.ipleaders.in

BOOK
1. Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency, Allahabad,
2011

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