SOUTHERN UNIVERSITY

BANGLADESH
Assignment on

Judicial Review of Delegated Legislation

Course name: Administrative Law

Submitted to

Md. Easin
Assistant Professor
Department of Law
Submitted by
Raihan Uddin Rabi
Department of law
Judicial Review of Delegated Legislation

Judicial review, power of the courts of a country to examine the actions of the legislative,
executive, and administrative arms of the government and to determine whether such actions
are consistent with the constitution. Actions judged inconsistent are declared unconstitutional
and, therefore, null and void. The institution of judicial review in this sense depends upon the
existence of a written constitution. The conventional usage of the term judicial review could be
more accurately described as “constitutional review,” because there also exists a long practice
of judicial review of the actions of administrative agencies that require neither that courts have
the power to declare those actions unconstitutional nor that the country have a written
constitution. Such “administrative review” assesses the allegedly questionable actions of
administrators against standards of reasonableness and abuse of discretion. When courts
determine challenged administrative actions to be unreasonable or to involve abuses of
discretion, those actions are declared null and void, as are actions that are judged inconsistent
with constitutional requirements when courts exercise judicial review in the conventional or
constitutional sense. Whether or not a court has the power to declare the acts of government
agencies unconstitutional, it can achieve the same effect by exercising “indirect” judicial review.
In such cases the court pronounces that a challenged rule or action could not have been
intended by the legislature because it is inconsistent with some other laws or established legal
principles. Constitutional judicial review is usually considered to have begun with the assertion
by John Marshall, fourth chief justice of the United States (1801–35), in Marbury v. Madison
(1803), that the Supreme Court of the United States had the power to invalidate legislation
enacted by Congress. There was, however, no express warrant for Marshall’s assertion of the
power of judicial review in the actual text of the Constitution of the United States; its success
rested ultimately on the Supreme Court’s own ruling, plus the absence of effective political
challenge to it. Judicial review of administration is, in a sense, the heart of administrative law. It
is certainly the most appropriate method of inquiring into the legal competence of a public
authority. The aspects of an official decision or an administrative act that may be scrutinized by
the judicial process are the competence of the public authority, the extent of a public
authority’s legal powers, the adequacy and fairness of the procedure, the evidence considered
in arriving at the administrative decision and the motives underlying it, and the nature and
scope of the discretionary power. An administrative act or decision can be invalidated on any of
these grounds if the reviewing court or tribunal has a sufficiently wide jurisdiction. There is also
the question of responsibility for damage caused by the public authority in the performance of
its functions. Judicial review is less effective as a method of inquiring into the wisdom,
expediency, or reasonableness of administrative acts, and courts and tribunals are unwilling to
substitute their own decisions for that of the responsible authority.

–According to M.P. Jain, the term delegated legislation is used in two senses; It may mean,

1) Exercise by a subordinate agency of the legislative power delegated to it by the legislature, or

2) The subsidiary rules themselves which are made by the subordinate authority in pursuance
of the power conferred on it by the legislature.

In its first application, it means that the authority making the legislation is subordinate to the
legislature. The legislative powers are exercised by an authority other than the legislature in
exercise of powers delegated or conferred on them by the legislature itself. This is also known
as ‘subordinate legislation’, because the powers of the authority which makes it are limited by
the statute which conferred the power and consequently, it is valid only in so far it keeps within
those limits.

In its second application, ‘delegated legislation’ means and includes all rules, regulations, bye-
laws, orders etc.

The statute enacted by the legislature conferring the legislative power upon the executive is
known as the ‘parent Act’ or primary law and the rules, regulations, bye-laws, orders etc. made
by the executive in pursuance of the legislative powers conferred by the legislature are known
as subordinate laws or subsidiary laws or the ‘child legislation’.

For example, the Bangladesh Environmental Conservation Act, 1995 it is a parent Act made by
the parliament. It empowers the Government to make any rules and regulations for the
carrying out of the

object of the Act, in pursuance of that power Government made the Environmental
Conservation Rules, 1997. It is a ‘child legislation.

At present, on almost all the countries, the technique of delegated legislation is restored to and
some legislative powers are delegated by the legislature to the executive. At the same time,
there is inherent danger of abuse of the said power of the executive authorities. Delegated
legislation has become inevitable but the question of control has become crucial. Judicial
review refers to the power of a court to review the constitutionality of a statute or treaty, or to
review an administrative regulation for consistency with a statute, a treaty, or the constitution
itself.

We can found judicial review in our constitution. Article 7, 26, 44(1), 102(1) are the main article
where judicial review we can found.
Article 7: (1) All power of the republic belongs to the people, and their supremacy of the
exercise on behalf of the people shall be affected only under, and by the constitution authority
of, this constitution.

(2) This constitution is, as the solemn expression of the will of the people, the supreme
law of the Republic, and if any other law is inconsistent with this constitution that other law
shall, to the extent of the inconsistency.

Article 26: (1) All existing law inconsistent with the provision of this part shall,to the extent of
such inconsistency, become void on the commencement of this constitution,

(2) The state shall not make any law inconsistent with any provisions of this part and
any law so made shall, to the extent of such inconsistency be void.

(3) Nothing in this article shall apply to any amendment of this constitution made
under the article 142.

Article 44(1): the right to move the (High court division) in accordance with of article 102, for
the enforcement of the right conferred by this part is guaranteed.

Article 102 (1): the High court division on the application of any person aggrieved, may give
such directions or order to any person or authority, including any person performing any
function in connection with the affairs of the Republic, as may be appropriate for the
enforcement of any of the fundamental rights conferred by part 3 of this constitution.

102(1)(2): called writ jurisdiction of the High Court Division of the supreme court.

Judicial Review may be sought on the ground of inconsistency with fundamental rights; as well
as on the ground of legality and constitutionality administrative action.

This the most important form of control over delegated legislation. Delegated legislation is
subject to the scope of judicial review. Courts can decide the validity of delegated legislation
mainly applying two tests:

1) Substantive ultra vires

2) Procedural ultra vires

Substantive ultra vires:

When the authority acts beyond the powers conferred upon it, the act becomes ultra vires. This
ultra vires is called substantive ultra vires.
Delegated legislation may be challenged on the ground of substantive ultra vires in the
following grounds

1. Where parent act is unconstitutional.

2. Where delegated legislation is unconstitutional

3. Where delegated legislation is inconsistent with the parent act.

4. Unreasonableness

5. Mala fide: Bad faith

6. Sub delegation

7. Exclusion of judicial review act.

8. Retrospective operation.

Where parent act is unconstitutional:

The enabling act must be valid and constitutional for delegation to the valid because if the
delegation statute itself is ultra vires the constitution and is bad for that reasons, delegated
legislation also is necessarily bad parent if the infringe the fundamental rights. Delegation may
be declared invalid when the Parent Act is unconstitutional on the ground of excessive
delegation or violation of fundamental rights.

In Chintamanrao vs State of M.P. (1951) the Parent Act authorized the Deputy Commissioner to
prohibit the manufacture of cigarette within some areas during certain periods. The order
passed by the Deputy Commissioner held ultra vires on the ground that the Act under which it
was made violated the fundamental right to carry on any occupation, trade or business
guaranteed by Article 19 (1) (g) of the Constitution of India.

Where the delegated legislation is unconstitutional:

It may happen that the enabling act may not be ultra vires the constitution yet the rules and
regulation formed there order may violate any provision of the constitution.

In Naranda kumar vs union of India air 1960 se 430, the Indian SC held that even if the enabling
act is introverts, the constitutionality of delegated legislation can still be consiclved because the
law can not be presumed to authorities anything unconstitutional.

The leading case on this point is Narendra Kumer vs Union of India AIR (1960), In that 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 petitioners had not challenged
the 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 constitutional. Rejecting
this ‘extravagant’ argument, the Supreme Court held that even though a Parent Act might not
be unconstitutional, an order made thereunder (delegated legislation) can still be constitutional
and can be challenged as violative of the provisions of the Constitution. Justice Das Gupta
rightly observed: “It is clear that when Section 3 confers powers to provide for regulation or
prohibition of the production, supply or distribution of any essential commodity it gives such
power to make any regulation or prohibition insofar as such regulation and prohibition do not
violate any Fundamental Rights guaranteed by the Constitution of India”.

Where delegated legislation is inconsistent with the parent act:

The validity of the delegated legislation can be challenged on the ground that it is ultra vires the
parent act. Authority must exercise power within the limit prescribed by the act. The validity of
the rule enacted by the authority is always open to challenge.

In US vs. 200 barrels of whisky (1877) 95 571, the parent act provided for admitting duty free
animals specially imported for breeding purpose. The regulation made under the act required
the animals to be of a superior stoke if they were to be admitted duty free. The court held the
regulation ultra vires because the parent act included all animals which the regulation confined
its operation to animals of a particular stoke alone. In Hodage vs Hodge 1 all ER 358, a statutory
provision required a party to matrimonial proceeding to obtain the leave of the court before
applying for the maintains. But there was no provision for such leave in the parent Act. The
delegated legislation was held ultravires the parent act.

State of Karnataka vs. Ganesh kamath Air 1983 SC 550 is another case on the point. 5.7 of the
motor vehicles Act 1939 provided that a person who passes a test in driving a heavy motor
vehicle is to be deemed to have passed the test in driving any medium motor vehicle also. Rule
5(2) framed under the act provided that though a person has passed the test for driving heavy
motor vehicle, he can not obtain a license unless he has already possessed a lenience an has
two year’s experience for driving medium motor vehicle. He can not obtain such license he has
previously passed the test in driving medium motor vehicle. Thus even though under the parent
Act it was not necessary before obtaining a license of a heavy motor vehicle to obtain a license
of medium motor vehicle, under the rule, it was necessary. The Supreme Court held that scope
of the rule traveled beyond the scope of the parent Act and was in consisted with it.

Unreasonableness:

Bye-laws may be held Ultra vires on the ground of unreasonableness. There is an ampiled
intention of the legislative is that the authorities should exercise the power reasonably. De
smith rightly observed “….. there is no reason of principle why a manifestly irresponsible
statutory instrument on that ground alone.”

In Kruse vs. Johnson 1998(2) QB 91 20th Russell laid down the test of unreasonable of
delegated legislation as:

A) Partial or unequal operation between different classes.

B) Manifestly injustice

C) Bad faith

D) Oppressiveness

E) Gross interference with the rights of the people that no legislation can he found in the mind
of a reasonable man.

Bangladesh Biman Corporation -v- Rabia Bashri Irene and others, 55 DLR 132, the SC quashed
the service regulation framed by Air India which had provided for the termination of service of
Rabia Basshri. The court held this regulation as most unreasonable and arbitrary course of
human nature. Legitimate Expectation; Non-discrimination; Fundamental Rights.

In administrative law reasonableness is the standard indicated of the Act which distinguishes
what the statutory authority may or may not be authorized to do. It distinguishes between
proper and improper use of power, it is often expressed by saying that the decision is
unreasonable authorities could have come. The essence of what is now commonly called
“wednesbury unreasonaflencess’1991 3 scc 91. so an action of administrative authority will be
considered as reasonable if it directs itself properly in law, considers the matter which it is
found to consider, excludes irrelevant consideration and absurd that no sensible man could
ever dreams that it lay within the powers of authority.

Mala fide:

Administrative rule making can be challenged on the ground of mollified. In Kruse vs. Johnson
(1898) 2 QB 91. being empowered the authority made a bye-law. Prohibiting any person from
playing music or singing in any public places or high way in within 50 yards of any dwelling
house. It was held ultravires on the ground of bad faith.

Bilkis Akhtar Hossain vs Bangladesh,(1997) 17 BLD (HCD) 344, where the high court division
directed the government to pay an exemplary compensation of tk 100000 to each of the four
political detainees who were detained unlawfully and with BAD FAITH under the special powers
act 1974.
Common law rights inconsistent with Parent Act:

Administrative rule and regulation can also be challenged on the ground that they arbitrarily
interfere with common law rights of a privet citizen. In Spphy Kelly vs state of Maharashtra
(1967) 69 Bom lr 186

A regulation of the Education board provided that all headmasters should toward all forms all
forms of conditions for S.S.C examination to the board irrespective of their academic progress
during the year. It was held ultravires because the Headmasters have a common law right to
forward the form of those students who make satisfactory progress during the year. In the
same manner in Chester vs. bateson (1920) 1 KB 829 a statute aphorized making of regulations
for public safety and successful prosecution of war Regulation made there under provided that
no premises can be recovered from the possession of any workman employed in the
manufacture of war material and imposed a penalty for taking legal proceeding in this behalf
ultravires the common law right of a private citizen to move a court of low for justice.

Sub delegation:

“Delegation non polest delegate” so sub delegation is not generally allowed. But if the parent
article authorizes to sub delegate. Then it is ok. If the parent Act permits sub delegation to
officers or authorities not bellow a particular rank, then the power can be delegated only to
those officers or authorities. Here it may be mentioned that the authority can not go beyond
the power delegated.

Exclusion of judicial review act:

In bangladesh this question can not arise at all. Because under our constitution (article 102)
doctrine of judicial review is accepted and treated as basic structure and treated as basic
structure and essential features of the constitution. It can not be taken away by a statutory
provision or even by a constitutional amendment.

In England where parliament is supreme and can exclusive judicial review of any administrative
action. In Institute of patent vs. Lockwood (1894) AC 347 Lord Herschel observed that the
jurisdiction of the courts to question the validity of delegated legislation could be taken away.
But this view was subsequently disapproved by the house of lords in Minister of Health vs
Yaffee (1931) Ac 494 . in this case Lord Dunedin observed” it is inconceivable that the
protection should extend without limit. If the authority went out the province of its power ……
it is replegnant to commonsense the authority’s act should be protected……” So this can’t is
saved by the finality clause. The committee on Ministers power also recommended that the
clause excluding judicial Review should be exercised in very restricted case and the special
grounds should be stated in the Ministerial Memorandum. Power to repeal a law is essentially a
legislative function and therefore delegation of power to the executive to repeal a law is
excessive delegation and is ultravire. In England this power is very restrict used by the
authority.

Here we may deal with non-obstinate classes. Some act says that “ not with standing anything
contained in other exactenent” this law would prevail. The object of such clases is not to repeal
other laws but just to by passing the difficulties. a subordinate legislation has been declared
ultra vires by the court it becomes null and void. It will be considered if this rule or regulation
was not in existence at all. Therefore it will neither operate as an stopped nor can it be ratified.

Example:

Bar council of India was empowered by the advocates Act 1961 to make rule about the
qualification and conditions of an advocate to vote at an election. But the state bar council
enacted such rule. Court held that this is ultra vires the Act and even a ratification by the Bar
council of India can not save it.

-Bar council of INDIA v. surjeet sing (1980) 4 sec 211

Parliament may require that certain procedure should be followed in framing rule legislation
and bye-laws. As for example constitution and bye laws, laying them before parliament
embodies or persons, publication of draft rule and bye-laws, laying them before parliament etc.
the authorities should comply with this procedure failure to comply with it seen to invalidate
the rule, none complain with a directly provision doesn’t invalidate subordinate legislation but
failure to observe a mandatory and insperactive requirements does. These are two procedural
requirements.

1) Publication

2) Consultation

Publication:

It is fundamental principle of law that ignorance of law is no excuse but there is also another
view that public must have access to the law and they should be given an opportunity to know
the law. In opportunity to know the law, In case of parliamentary enactment the act receive
sufficient publicity but this is not true in the case of delegated legislation so, it is essential to
take step in this purpose. In England and USA publication is statutorily mandatory but there is
no statutory provision requiring publication of delegated legislation. Yet the courts have treated
publication of delegated legislation as an essential requirement for its validity.
In RAza Buland Sugar vs. ampur Municipality Air 1965 SC 859 it was held that the question
whether the model manner and method of publication prescribed in a statute can not be
answered with reference to any fixed formula. Much would depend on the language of the
statute, the purpose for which the provision was made, the intention of the legislature
inconvenience or institute to person resulting from whether the [provision was read one way or
the other relation of a particular province to other provision dealing with the same subject and
other consideration which may arise on facts of a particular case.

In Srinivassan vs state of Karnataka (1987) Air SC 1059 emphasis was made on proper
publication of the subordinate legislation. If any particular mode is prescribed for publication
that mode should be followed and if no mode is mentioned a suitable way should the
emphases with. However, the general model of publication is through the government
notification.

Consultation:

Consultation is an important way to cheek and content the exercise of legislative power.
Through it, affected interest may take part in rule making process. It is a valuable safeguard to
prevent the misuse a power. Wade and Philps rights says, “ one way of avoiding a clash
between department exercising legislative powers and the interest likely to the affected is to
provide for some of constitution”

According to the Griffith; such consultation are of two types:

1) Ordinary types of consultation

2) Extraordinary types of consultation

Ordinary types of consultation:

These can be further sub-divided into two categories

a) Individual objections: generally, consultation of this kind is by statutory provision, e. g.,

factory laws. The proposed regulations are required to be published, objections are invited and
opportunity of hearing is given to the affected persons.
b) Consultation with specified interests.

Here the minister is required to consult specified interests before he makes the regulations.
Normally, these interests are statutory advisory bodies or local authorities.

2) Extraordinary types of consultation:

These can also be sub divided into two categories

a) preparations by affected interests:

Here the power to draft the regulations is delegated to the individual or group and the minister
become a confirming or approving authority. Under certain factory laws, the power of making
rules to compel the observance of requirements of the laws regarding cleanliness, ventilation
and general health maters is delegated to the occupier of the factory.

b) approval by statutory body:

Some statutes provide for submission of the draft of the regulations to a statutory body by the
minister and the report of that body is to be laid before parliament.

Plenary powers of law making are entrusted to elected representatives. But in reality, the
political government, entrusted by the bureaucracy, gets bills passed through either by the aid
of whip or by other methods. Thus, law making has remained, more or less, exclusive
prerogative of a small cross section of elites. It affects not only the quality of the law made but
reinforces centralized system of power. There must therefore be social auditing by public at
large. Constitutional legitimating of unlimited power of delegation to the executive by the
legislature may, on critical occasions, be subversive of responsible government and erosive of
democratic order.