ACKNOWLEDGEMENT

There is always a sense of gratitude one expresses to the other for their helpful and needy
service they render during all phases of life. I wish to express my deep gratitude towards all
of them.
My deepest thanks to my Administrative Law Professor, Dr. Pallavi Singh for guiding and
helping at every stage during the completion of this project with attention and care.
I would also like to thank my friends, institution and every single person who is related with
this Project in any way and without whom this would have been a distant reality.
-GAUTAM KUMAR
 CONTENTS

Introduction Page 03
Need of Judicial control in Delegated Page 03
legislation

The scope of Judicial control Page 04

Judicial control under Indian law Page 04, 05,06

Conclusion Page 07
References Page 07
Introduction:-
In this modern Welfare State, governmental activity has pervaded almost every field of
human Endeavour, thus,necessitating enactment of multifarious laws to regulate this ever-
widening activity. The Legislature does not have enough time to deliberate upon, discuss and
approve all the regulatory measures required to implement the enacted law and here comes
the requirement of delegated legislation. 1 Moreover, law-making has now become a
complicated and technical matter, and law has to be flawless in technical details. Delegated
legislation is nothing but the law made by a person or body other than the legislature but
with the legislature’s authority. In India, the legislature is vested with wide powers of
delegation but this delegation is restricted to certain limitation, to curb the issue of excessive
delegation. It is mostly bureaucratic legislation and performed by the executive the question
of controls of delegated legislation therefore assumes importance if the executive is not to
be allowed to act arbitrarily. This paper tried to discuss all the types of control mechanism
over delegated legislation and the judicial approach towards it.

Delegated legislation is generally a type of law made by the executive authority as per the
powers conferred to them by the primary authority in order to execute, implement and
administer the requirements of the primary authority. It can be said that it is the law made
by any person or authority under the power of parliament. It is also known as subordinate
legislation in administrative law.

There are three kinds of Control given under Delegated Legislation:

Parliamentary or Legislative Control

Judicial Control
Executive or Administrative Control

Judicial Control
Judicial review upgraded the rule of law. The court has to see that the power delegated is
within the ambit of the constitution as prescribed. Judicial review is more effective because
court do not recommend but it clearly strikes down the rule which is ultra vires in nature. As
per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate
that State should not make any law which abridge the right given in Part iii of the Constitution

1 Researchgate.com
Why there is need of judicial control in Delegated legislation:-
With the growth of the administrative process in the 20th century the delegated legislation
has assumed great importance, today most of the laws which govern the people come not
from the legislature but the chambers of administrators. Delegated legislation is bureaucratic
legislation, it involves the transfer of legislative power from the legislature to the executive.
The delegation of the legislative power is permissible only when the legislative policy is
adequately laid down and the delegate is empowered to carry out the policy within the
guidelines laid down by the legislature. Delegated legislation does not fall beyond the scope
of judicial review, the courts often decide the validity of the delegated legislation on the
ground whether it is ultra vires or Intra vires to the parent Act.2 The general theory of judicial
control is called the doctrine of Ulta-vires. Administrative power derives from the statute.
The limits are found in the statute itself or in the general principles of the construction by the
courts. Judicial control, therefore, means control and is based on the fundamental principle
of the legal system that powers can be validly exercised only within their true limits.

The scope of judicial control may be classified by the following

principles.

Breach of the principle of Natural justice

Excess of power of “substantive” ultra vires.
Errors of law
Failure to perform a duty
Bad faith or abuse of power

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 delegating statute being unconstitutional.

2 Ssrn id 1877247
 (2) The subordinate legislation violating the Constitution.
(3) The subordinate legislation being ultra vires the delegating 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 vires3

Doctrine of ultravires :
‘Ultra vires is a Latin phrase that means beyond the power or lack of power. An act is said to
be ultra vires if it is done by a person or a body of persons which is beyond their authority or
jurisdiction. The doctrine of ultra vires is the basic doctrine in the area of administrative law,
it provides that an authority has to exercise only such power as it is conferred on it by the
law. An action of the authority is said to be Intra vires when it falls within the ambit of the
powers conferred on it, but ultra vires when it goes beyond the power conferred on it.

Substantive ultravires:
Substantive ultra-vires means that the delegated legislation has no substantive power under
the empowering Act to make the rules in question in other words it means that the delegate
cannot make a rule which is not authorized by the parent statute. Therefore the delegated
legislation may be held invalid on the ground of substantive ultra-vires. The following are the
circumstances of substantive ultra-vires :4

1. Constitutionality of the parent Act :

The first requirement for the delegation to be valid is that the parent Act or the enabling
statute by which the legislative power is conferred on the executive authority must be valid
and constitutional. If the parent statute is itself ultra-vires the constitution then the
delegated legislation is bad. In Chintaman Rao v. State of Madya Pradesh, the parent Act has
authorized the deputy commissioner to prohibit the manufacture of bidis in some areas for
a certain period, it was held that the parent Act was unconstitutional as it violated Art. 19(1)
(g) of the constitution and the court also struck down the order passed by the deputy
commissioner.

2. Constitutionality of the delegated legislation :

If the parent Act or some of its provisions through which the delegation is conferred are in
contravention of the constitution then the same will be declared as ultra vires. In CB
Muttamma v. Union of India, a provision in service-rule making a female employee obtain

3https://www.lawteacher.net/free-law-essays/constitutional-law/the-doctrine-of-substantive-ultra-vires-constitutional-law-
essay.php

4 https://www.academia.edu/2413478/The_Doctrine_of_Ultra_Vires_and_Judicial_Review_of_Administrative_Action
the permission of the government before solemnizing the marriage and denying the right to
get an appointment on the ground that she was married was held to be unconstitutional.

3. Unreasonableness and Arbitrary :

If the delegated legislation is unreasonable and arbitrary then it will be declared invalid. In
Air India v. Nargeesh mirza, a regulation framed by air India providing that services of an air
hostess could be terminated if she becomes pregnant was held arbitrary, unreasonable, and
violative of articles 14 and 15 of the constitution. And in the case of the Indian council of legal
aid and advice v. Bar Council of India, the court held that the rule framed by the bar council
of India barring enrolment of a person who is 45 years of age is violative of articles 14,19
(1)(g) and 21 of the constitution.5

4. Malafide :
If the delegated legislation is made by the administrative authority exercising its power in
Malafide or with the ulterior motive then the same will be held ultra-vires and invalid. In
Narendra Kumar v. Union of India, the court struck down the delegated legislation on the
ground that the delegated legislation has acted Malafide or in bad faith.

5. Exclusion of the judicial review :

Sometimes the clause is inserted in the parent Act ousting the jurisdiction of the courts, such
an ouster clause cannot affect the jurisdiction of the courts under articles 32,136, and 226 of
the constitution as judicial review is now considered as a part of basic structure doctrine.

6. Retrospective operation :
Sometimes a delegated authority while making subordinate legislation tries to give
retrospective effect to the rules, but this power cannot be used by the delegated authority
unless it expressly confers powers in this regard. The court in the case of State of Madhya
Pradesh v. Tikim Das held that “the delegated authority cannot use the power of
retrospective effect for rules and regulations unless the concerned statute expressly or by
necessary implications confers power in this behalf”. 6

II. Procedural ultravires :

The delegated legislation may be challenged on the ground that it is not following the
procedure prescribed by the parent Act, if the delegated legislation fails to comply with
procedural requirements prescribed by the parent Act or by the general law then it is said to
be procedural ultra-vires.

The formalities which the authorities have to follow may include consultation with the
interested bodies, publication of the draft rules and regulations, hearing of objections, etc. If
5 C K Takwani administrative law

6 https://blog.ipleaders.in/delegated-legislation/
these requirements are mandatory and the authorities disregarded these formal
requirements then the same may be invalidated by the court being ultra-vires the Enabling
Act.
When the power is conferred on an administrative body, the instrument conferring the
power may itself provide for restrictions on the exercise of the power. Such restriction may
be procedural (ie how the power is to be exercised). Even though the statue conferring the
powers does not in terms limit its operation, the courts will impose limits by reference to
principle of reasonableness and fairness.18 In recent times, procedural fairness has emerged
as a unique check on the executive and courts may read such procedural fairness in delegated
legislation.

Failure to comply with this procedure is Ultra vires. In case or procedural ultra vires, the court
may quash the Delegated legislation depending whether the procedure is held to be directory
or mandatory. The procedural defects cannot be regarded as fundamental or as
Invalidating the imposition of tax by a local body where the tax proposal was not published
in the prescribed manner. If substantial compliance is made, the omission would amount only
as a mere irregularity and not ultra vires 7

Conclusion :
With the growth of the administrative law in the 20th century, the delegated legislation has
acquired a very prominent place in the administration, with ever-widening state activities the
parliament cannot exercise all its functions without delegation, and hence delegation is
utmost necessary however the delegated legislation must not go beyond its authority while
excessing its power and the validity of the delegated legislation will be determined by the
courts whether it is Intra vires or ultra-vires to the parent Act.

7 Administrative law Ninth edition I.P Massey

REFERENCES:
Cases:
Chintaman Rao v The State Of Madhya Pradesh.,1951 AIR 118, 1950 SCR 759.
C. B. Muthamma vs Union Of India & Ors.,1979 AIR 1868, 1980 SCR (1) 668.
Air India Etc. Etc vs Nergesh Meerza & Ors. 1981 AIR 1829, 1982 SCR (1) 438
Indian Council Of Legal Aid & … vs Bar Council Of India & Anr .,1995 AIR 691, 1995 SCC (1)
732
Narendra Kumar And Others vs The Union Of India And Others .,1960 AIR 430, 1960 SCR (2)
375
The State Of Madhya Pradesh And … vs Tikamdas., AIR 1975 SC 1429, (1975) 2 SCC 100, 1975
Supp SCR 234, 1975 (7) UJ 410 SC

Sources:-
.Class Notes under the Course Instructor
.YouTube
.Google

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