JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

Author(s): V.N. SHUKLA

Source: Journal of the Indian Law Institute , Apr., 1959, Vol. 1, No. 3 (Apr., 1959), pp.
357-374
Published by: Indian Law Institute

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 JUDICIAL CONTROL OF DELEGATED
LEGISLATION IN INDIA
V.N. SHUKLA*

Judicial review of legislation has always been an essential featur

of the Indian constitutional law. At one time it was contended
before the Calcutta High Court that the limits on the powers of the
Indian Legislature are political, and not legal, and that the validity
of its legislation is not a justiciable issue. The Court rejected the
plea saying :
"The theory of every government with a written consti-
tution forming the fundamental and paramount law of
the nation must be that an Act of the legislature repung-
nant to the constitution is void. If void, it cannot bind the
courts, and oblige them to give it effect; for this would
be to overthrow in fact what was established in theory,
and make that operative in law which was not law."1
The Privy Council approved the interpretation of the Calcutta High
Court of the functions of the court,2 and the question of validity of
an Act has ever since been treated as an ordinary matter of con-
struction of the Constitution Act.3 The present Constitution incorpo-
rating a list of fundamental rights of the citizen has widened the
ambit of judicial review.
The position in England is different. No British court can
give judgment that an Act of Parliament need not be obeyed because
it is ultra vires. No Act is beyond Parliament's competence since
there is no law which defines what is within its powers. The British
Parliament has entrusted to the two Houses of Parliament, subject
to the consent of the King, an absolute power untrammelled by any
written instrument obedience to which may be compelled by any
judicial body.
But the rule of non-challengeability is applicable only to Acts of
Parliament. It does not apply to delegated powers. A subordinate
power of law-making is limited by the terms of the enactment whereby
it is delegated, and the courts, when a question arises whether the
* Dean, of the Faculty of Law, Professor of constitutional law and adminis-
trative law, Lucknow University; Project Director of the Instituteon 'The
Problem of Delegations '
1. Empress V . Burah and Book Singh. I.L.R. 3 Gal. 63, per Markby J. at 87-8.
2. R. V . Burah , (1878) 5 I.A. at 193-194.
3. " The Constitution of India contains express provisions for judicial re-
view of legislation as to its conformity with the Constitution "-per Sastri
C.J. in Stau of Madras v. V.G. Row, A.I.R. 1952 S.C. 197 at p.199.

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358 JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

prescribed limits have been exceeded, must determine that question.4

In regard to subordinate legislation, too, there is an important
distinction resulting from the divergence in the constitutional theories
of the two systems. British Parliament is sovereign and may, if
it likes, confer on any subordinate law immunity from being challeng-
ed in a law court. Thus by excluding subordinate legislation from
the control of the courts, it may obliterate the distinction between
subordinate and supreme legislation. In India obviously there is no
such power with Parliament. It can delegate only what it has, and
it has no power to oust the jurisdiction of the courts from the review
of laws, direct or subordinate.5
In this connection it will be appropriate to consider the effect
of two sorts of provisions sometimes found in Indian statutes: an
Act may declare ( a ) that the rules made thereunder shall not be
called in question in any court; or ( b ) that such rules are to have the
same effect as if contained in the Act itself.
As to the first, it has been held that the provision would not
prevent the court from determining the validity of a rule. In Keshav
Talpade v. Emperor ,6 the Federal Court declared Rule 26, made under
the Defence of India Act, 1939, ultra vires the Act in spite of S. 16(1) of
the Defence of India Act which stated that "No order made in exer-
cise of any power conferred by or under this Act shall be called in
question in any court." This section, though it did not mention the
word rule, has, it seems, to be understood to comprehend the act of
rule-making also. The view of the Federal Court about the validity
of Rule 26 has been reversed by the Privy Council in Emperor v . Shibnath
Banerji1 but the Privy Council agreed with the Federal Court that S.16
( 1 ) could not exclude the courts from scrutinising a rule or order and
from declaring it illegal if so found. In K.E. v. Shibnath Banerji ,8 Lord
Thankerton, delivering the judgment of the Board, said about the
objection to the court's jurisdiction based on the above sub-section as
below :
"Sub-Section (1) assumes that the order is made in exercise of
the power, which clearly leaves it open to challenge on the
ground that it was not made in conformity with the power
conferred."

4. Chester V
[1929] 1 K.B
T.L.R. 781.
5. See Articles 13, 32 and 226 of the Constitution of India.
6 A.I.R. 1943 F.G. 1.
7. A.I.R. 1945 P.C. 156.
8. (1945) 72 I.A. 241 at 261.

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 V.N. SHTJKLÀ 359

The second type of provision,

has been the subject-matter of co
Law. In Institute of Patent Agents
by the Board of Trade were decla
they were contained in this Ac
in the House of Lords, held that
the rules altogether from judic
that you cannot canvass an Act of Parliament in a court and if
Parliament said that a rule made under the Act shall have the same
force as if "contained in the Act itself," it intended to confer on the
rule the same immunity from judicial control as is possessed by the
delegating Act itself. This opinion of Lord Herchell was not neces-
sary, however, for the decision of the appeal and must be treated as
mere obiter dicta . Yet the soundness of the opinion has been doubted
and, in a later case, R.u. Minister oj Health , exparie Taffee10 the House of
Lords seems to have been of the opinion that these words do not pre-
vent the courts from ascertaining whether a subordinate law conflicts
with the delegating Act. The reasoning used is that while the pro-
vision makes the order speak as if it were contained in the Act, the
Act in which it is contained is the Act which empowers the making
of the order, and therefore if the order as made conflicts with the Act,
it will yield to the Act.
In India, so far as the jurisdiction of the court to examine sub-
ordinate legislation is concerned, the clause has been understood
in the same sense11 as explained in the Yaffe iase.12 Whether these words
have the effect of enlarging the scope of delegated power to any
particular case, we shall consider below.

Grounds of Invalidity
Invalidity of delegated legislation may arise on account of any
one of the following reasons:
1. The enabling Act being ultra vires .
2. The subordinate legislation violating the Constitution*
3. The subordinate legislation being ultra vires the dele-
gating Act.
1. A law will be ultra vires if it violates a constitutional prohibition.

9. [18941 A.C. 347.

10. [1931] A.C. 494.
11. See Municipal Corporation of Rangoon V. The Soobrati Bara Bazaar Co.,
5 Rang. 212; Statt V . A.K. Jain A.I.R. 1958 M.P. 162; Cooperativi Central
Bank V. Benovy A.I.R. 1954 Cal. 371 at p. 379.
12. [1931] A.C. 494.

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360 JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

The prohibition which has been infringed may affect the competence
of the Legislature to enact the law or it may merely operate as a check
on the exercise of a power which is within its competence.13 Where
the law is unconstitutional on either ground it is devoid of any effect
and is unenforceable.
As to the competence, we may classify it as express and implied.
The implied want of competence is illustrated by decisions of the
Supreme Court regarding the limits within which the Legislature
may delegate its law-making powers on outside authorities.14 Thus
it is now settled that there is a limit beyond which delegation may
not go. The limit is that essential powers of legislation cannot be
delegated which consist in the determination or choice of the legis-
lative policy and formally enacting that policy into a binding rule
of conduct. The Legislature, accordingly, may not delegate its
functions of laying down legislative policy to an outside authority in
respect of a measure and its formulation as a rule of conduct. So
long as a policy is laid down by the delegating Act, the Act is not
unconstitutional because it leaves to the Executive the making of
subordinate rules within prescribed limits and the determination of
facts to which the legislation is to apply.15 A law may therefore
be challenged on the ground that in making delegations of powers
it has transgressed the permissible limits. Thus in re Delhi Laws
Act etc.16 the majority of the Judges held the exercise of delegated
law-making power invalid because the enabling Act was ultra vires
for it had exceeded the constitutional limits in permitting the Execu-
tive to repeal a law existing in the area. Likewise, in Raj Narain
Singh v. Chairman , P.A. Committee 17 power was given to extend, with
modifications, an existing Act to a municipal area. The notification
issued under this power picked out one section and extended that
to the municipal area. The effect of such partial extension was to
bring about a change in the policy of the Act. It was held that it
was an ultra vires exercise of the power because an executive autho-
rity cannot be authorised to modify existing laws in any essential
feature.

13. There are certain differences as to the effect of unconstitutionality in the

two cases which it is unnecessary to discuss here.
14. In re Delhi Laws Act., A.I.R. 1951 S.C. 332 ; Raj Narain Singh
V. Chairman , P.A. Committee , A.I.R. 1954 S.C. 569 ; Hari Shanker Bagla
V. M.P . State, 1954 S.C. 465 ; Ram J away a V. State of Punjab , A.I.R.
1955, S.C. 549.
15. In re Delhi Laws Act etc ., A.I.R. 1951 S.C. 332, para 246.
16. A.I.R. 1951, S.C. 332.
17. A.I.R. 1954, S.C. 569.

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 V.N. SHTJKLÀ 361

Coming to the express limitation

has the power to transgress the d
the Constitution.18 The legislative
between Parliament and the Stat
limits of the respective powers
Union Parliament can make laws f
thereof in respect of matters in t
with a State Legislature in respe
List. Residuary powers belong t
Act of Parliament which encroach
is invalid. In Tan Bug Taim v. Colle
Government of India Act, 193520, t
empowered the Central Governmen
of immoveable property. The rule
of property was held ultra vires o
requisition of immoveable prope
In Bhimsen v . State of U.P .**. rul
U.P. Panchayat Raj Act, 1947, in so
of a special bench where one of th
side the State was held ultra vires. Article 245 of the Constitution
empowers a State Legislature to make laws for the whole or a part of
the State. The impugned rule in giving extra-territorial operation
to its provisions transgressed the limits placed on its powers.
The other reason of unconstitutionality, as we have noted above,
is that the prohibition operates as a check on the exercise of a power
which is within the competence of the Legislature. Violation of the
provisions of Part III of the Constitution which declare a number of
fundamental rights of the citizen would fall under this category. It
is provided18 there that the State shall not make any law which takes

18. See Articles 245 and 246 of the Constitution.

19. A.I.R. 1946 Bom. 266.
20. The Act, like the present Constitution of India, embodied a scheme
distribution of powers between the Central and Provincial Government
See Sees. 99 and 100 of the Govt, of India Act, 1935.
21. Under the Government of India Act, 1935, the subject matter did n
belong either to the centre or the provinces. The question of allotment
of the subject was left to the discretion of the Governor-General. [T
difficulty created by this division was met by the passing of the India
(proclamation of Emergency) Act 1945, by the British Parliament. Th
present constitution provides for requisition of property in item 33
List I, items 36 of List II and 43 of List III of the 7th schedule. Ed.]
22. A.I.R. 1955 S.C. 435.

23. Art. 13 els. (1) and (2).

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862 JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

away or abridges the -rights conferred by Part UJ and if any law

does have that effect, it shall be void ^ to the extent of contravention.
The same principle is made applicable to the laws existing on the date
of the commencement of the Constitution. In Chintamanrao v. State
of Madhya Pradesh u an Act of the state Legislature empowered the
Deputy Commissioner to prohibit, by general order, during the
agricultural season, the manufacture of bidis ( a kind of cigarette)
- in such villages as he might specify. By a notification issued under
the Act, the Deputy Commissioner forbade all persons in certain
villages from engaging in the manufacture of bidis. The Supreme
Court held that the Act (in permitting the imposition of a total pro-
hibition upon those carrying on the business of manufactures of
bidis during the Aagricultural season) arbitrarily interfered with
private business and thereby violated the fundamental right guaran-
teed by Article 19(1 )(g) of the Constitution. In the result the Deputy
Commissioner's notification was held to be void and inoperative.
2. Subordinate legislation in violation of the Constitution - In some
instances, while the enabling Act may be valid, the subordinate
legislation made thereunder may be violating some provision of the
Constitution. The san;^ principles which govern the constitutional
validity of legislation emanating directly from Parliament will apply
in determining the validity of a subordinate law. The decision of
the Supreme Court in Messrs Dworka Prasad v . State of U.P.25 is an
instance of subordinate legislation in conflict with the Constitution
being held ultra vires. In that case sub-clause (i) of clause (3) of the
U.P. Coal Control Order, 1953, issued under section 3 of the Essential
Supplies (Temporary Powers) Act, 1 946, provided that no person
shall "stock, sell, store for sale or utilise coal for burning bricks or shall
otherwise dispose of coal in this State except under a license in Form
'A' or 'B' granted under this Order or in accordance with the provisions
of this Order". Clause 3(ii) (A) laid down that nothing contained in
sub-clause (i) "shall apply to any person or class of persons exempted
from any provision of the above sub-clause by the State Coal Control-
ler to the extent of their exemption." The Supreme Court held
that clause 3(ii) (fr) was ultra vires because it gave unrestricted power
to the State Controller to make exemptions, and even if he acted
arbitrarily or from improper motives there was no check over him
and ho way of obtaining redress. Such a power was violative of the
freedom of trade and businesá guaranteed under Article 19(1 )(g),
and could hot be justified as a reasonable restriction Uhder clause
24. A.I.R. 1951 S.C. 118.
25. A.I.R. 1954 S.C. 224.

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 V.N, SHTJKLA 363

(6) of the same article.26

In Sheo Sharker v . M. P. State 2
enabling Act also became invalid
be ultra vires on the ground of i
Constitution. The majority held t
ding rule alone was, to be rejec
3. Subordinate legislation being ul
This is the only ground on which
statutory rule invalid.28 The two
fication of the principle that the
the competence of the delegating
parliamentary delegation in Engl
The various circumstances whic
rule of ultra vires to the exercise of
be stated below :
(a) In excess of delegated authority. - The delegated power is
limited by the terms of delegation. If the rules are not within the
powers entrusted by the Legislature, they are liable to challenge as
ultra vires . A good example of the application of this general
principle is found in the recent Allahabad case of Chandra Bali v . Ä.29
Section 19 of the Northern India Ferries Act authorised the making
of rules for the purpose of maintaining order and safety of passengers
and property but the Commission under the delegated power made
rules also for the purpose of forbidding the establishment of private
ferries within a distance of two miles from the limits of another
ferry. The Court held the rules ultra vires on the ground that they
were outside the scope of the rule-making power conferred by the Act.
It seems that the courts will not import any implied doctrine to
enlarge the ambit of delegated powers. Thus in Agarwal Avengar &
Co. r. State 80 it was contended that the power conferred on the rule-
making authority to control the price of textiles impliedly carried with

26. In this case clause 4(3) of the Control Order was also held void as impos-
ing an unreasonable restriction upon the freedom of trade and busi-
ness guartanteed under Article 19 (1) (g) of the Constitution and not
coming within the protection afforded by clause 6 of the Article.
For other instances of subordinate legislation held ultra vires on consti-
tutional grounds, see R.M. Seshadri V. Distt . Magistrate T anjore, A.I.R
1954 S.C. 747 and the discussion in R.M.D. Chamarbaugwalla V . Union
of India, [1957] S.C.J. 593.
27. A.I.R. 1952 Nag. 58.
28. e.g. Chester V. Bateson [19201 I K.B. 462.
29. A.I.R. 1952 All. 793.
30. A.I.R. 1951 Bom. 397,

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364 JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

it the power to regulate the priCe of "lickerin wire" - an article

necessary for use in the machinery for carding cotton. The principle
relied upon in support of the contention was that whenever power is
conferred upon the Legislature to pass laws in a given field, that power
carried with it the power to regulate all matters which might be called
subsidiary or ancillary. The Court held that this principle was in-
applicable in interpreting the subordinate power of legislation con-
ferred upon the executive government.
It is observed here, however, that the effective application of
the rule that the delegated powers must not go beyond the terms of
the enabling authority is conditioned by the delegatory Act defining
the precise limits of the law-making power. If the power to make
rules is delegated in very wide terms there would be little scope
left to apply the rule of ultra vires . The language used, for example,
in section 2, sub-sec. (1) of the Defence of India Act, 1939, is
so comprehensive that it is difficult to conceive how any rules can be
beyond its scope. Sub-section (2) of the same section gave certain
powers which were, however, declared to be "without prejudice to
the generality of the powers conferred by sub-section (1)." In King
Emperor V. Sibnath Banerji 81 the Privy Council held that a rule which
was covered by the more general language used in sub-section (I)
would not become ultra vires although it did not fall within the
terms of the legislative provisions of sub-section (2)
(b) In conflict with the delegating statute - Subordinate legislation,
to be valid, must not be in conflict with or repugnant to the delegat-
ing Act. In Ram Prasad v. Statč* Section 49 of the U.P. Panchayat
Raj Act, 1947, laid down that every case or proceeding cognizable
by panchayat adalat (village court) must be tried by a bench consti-
tuted in the manner provided in the Act. Rule 87 made under the
Act laid down that three members of a panchayat adalat shall consti-
tute the quorum of meeting of any bench. This number was less
than that prescribed in the Act. The Court held the rule invalid on
the ground of its being inconsistent with the main provisions of the
delegating Act.
Some times there are cases, similar to the above Allahabad case,
where the conflict between the parent Act and the subordinate legis-
lation may not be as apparent, yet the latter may be found to be
repugnant to the scheme of the Act. To illustrate, in Haji H. Ibrahim
v. Emperor 83 the power to make rules under the Factories Act for pre-
31. 72 I A. 241.
32. A.I.R. 1952 All. 843.
33. A.I.R. 1943 Bom. 5.

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 V.N. SHUKLA 365

cautions to be taken against fi

make rules for the consequences o
the provisions regarding that m
(as far as could reasonably be r
factory), and then leave to the
cautions have been taken.
Occasionally the question has arisen whether a subordinate law
becomes invalid, though otherwise within the scope of the delegating
Act, if it is in conflict with some other general porovision of law,
statutory or non-statutory. For example, in Subbarao v. LT . Com-
missioner ,34 the validity of Rules 2 and 6 of the Income-tax Act, 1922,
which provided that an authorised agent could not file the application
for the removal of registration of a firm was involved. The rules,
though clearly within the purview of the authority delegated under
the Act, are in conflict with the Powers of Attorney Act, 1822, which
permits the agent to sign on behalf of the principal. The Court
held the Rules valid, relying on the principle that a special enact-
ment overrides more general laws on the same subject. This principle
of interpretation applies equally to Acts as well as to statutory rules,
which are to be treated as part of the Act itself. In the above case,
the Act had declared that rules framed thereunder were to have the
same effect "as if enacted in the Act itself." But it appears from
the decision of the Supreme Court in T.B. Ibrahim v. Regional Transport
Authority that the same principle is applicable even in the absence
of these words. In that case certain rules were impugned on the
ground of being in conflict with the provisions of an earlier Act. The
Court said:
"If Rule 268 is, therefore, within the power of the rule-mak-
ing authority, it follows that it cannot be challenged as
being void because it is not consistent with some general
law."**
It is doubtful if the courts in England in the absence of an
express authorisation by Parliament would be willing to give such
an operation to subordinate legislation.87
(c) Disregard of prescribed procedure - A rule may become ultra
vires for not being made in the manner prescribed by the enabling

34. A.I.R. 1952 Mad. 127.

35. A.I.R. 1953 S.G. 79.
36. Ibid. P. 82.
37. Thus in Perry V. London General Omnibus Co. (1916) 2 K.B. 335 at p. 34
the Court doubted if in the absence of an express provision a statutory
instrument could repeal or amend an Act of Parliament.

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366 JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

Act. Thus where the rules were directed to be made by the State
Government with the concurrence of the Central Government, on
proof that amendments had been made in the existing rules with-
out such concurrence, the rules were held to be invalid.38 The same
will be the result if the condition of "Gazette publication" is dis-
regarded.89 Likewise failure to consult specified interest in rule-
making, if the condition of consultation is mandatory, will make the
rule subsequently promulgated invalid.40 But non-complicance of a
direction to make a rule after previous publication will not affect
the validity of the rule if it is subsequently published in the Official
Gazette. Publication in the Gazette, it may be pointed out here,
raises an irrebutable presumption of law that the rules were made
after previous publication.41
The effect of non-compliance with the conditionsi n the enabl-
ing Act that the rules shall be laid before the Legislature came for
consideration in Manna Lai v . H.R. Scott** Clause (5) of Article
320 of the Constitution of India requires that all regulations made
under the proviso to clause (3) "shall be laid for not less than
fourteen days before each House of Parliament

possible after they are made, and shall be su

whether by way of repeal or amendmen
ment

The Court held that clause (5) is merely dir

lay them before Parliament does not entail
regulations shall be inoperative and unenf
appears that a requirement that the statutory

38. Radhakriskna V . The State , A.I.R. 1952 Nag.

39. In re Venkataswami A.I.R. 1950 Mad. 308.
40. In an English case, May V. Beattie , (1927) 2 KB. 353, certain regulations
made by the Minister of Transport under the London Traffic Act, 1924,
were challenged on the ground that the Minister did not comply with the
provisions of the Act requiring compulsory consultation with the Statutory
Advisory Committee sitting with the additional members. While the
Court held that the regulations were not of the nature requring the
additional members to sit and, therefore, were valid, it was assumed all
along in the judgment that if the regulations had been of the type requir-
ing the sitting of additional members they would not have been valid
unless the required procedure was complied with. Recently, the
Supreme Court expressed the view that if consultaion is optional, an
administrative Act is not rendered invalid in the absence of such con-
sultation. (T.B. Ibrahim V . Regional Transport Authority , A.I.R. 1952
S.C. 79, 83).
41. General Clauses Act, 1897, Sec. 23
42. A.I.R. 1955 Cal. 451.

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 V.N. 8HTJKLA 367

before Parliament will be treated a

enabling Act has expressly stipulate
legal effect.44
(d) Mala fide - There is no Indian
has been held invalid on the ground
making power. But if it is establish
has acted with ulterior motive, th
following observations of Viscount
Sharma 45 , which involved the val
Governor-General, assumes the exis
"Assuming that he [the Gover
and in accordance with his sta
rest with the courts to challenge his view that the
emergency exist s."46
(i e ) Reasonableness - In England the courts will not hold a
departmental regulation invalid on the ground of unreasonableness,
though a bye-law of the county council may be declared to be ultra
vires on that ground.47 In a recent case, Taylor v . Brighton Borough
Council ,48 the Court of Appeal said, upon being invited to hold that a
provision in the Town Planning Scheme sanctioned by the Minister
was ultra vires on the ground of unreasonableness :
"The analogy of the bye-law, even if it could carry the
appellant as far as suggested, is quite out of place in the
present circumstances. We are dealing with a totally
different class of subject-matter and one in which the
ultimate arbiter is the Minister himself.,,
It is submitted that in India also the courts will not examine
the reasonableness of a statutory rule. In Mulcand v . Mukund 49 the
Court was asked to hold rule 36 made under the Bombay Cooperative
Societies Act invalid on the ground that it was unreasonable. The
Court rejected the plea observing :

43. Storey V. Graham , [1899] 1 Q.B. 406, at p. 412, and Bailey V. Williamson ,
L.R. 8 Q.B. 1 18. But in 1944 when it was discovered that 23 sets of
regulations, some of which had been made nearly years earlier, had not
been laid before Parliament, an indemnity was passed indemnifying the
Secretary of State from all consequencies of the failure to lay the regu-
lations, which were also declared to be valid. (7 and 8 Geo. 6, c. 38).
44. Metcalfe V. Cox , [1895] A.C. 328.
45. [1945] A.C. 14.
46. Ibid . p. 21.
47. Kruse V. Johnson , [1898] 2 .Q.B. 91.
48. [1947] K.B. 736 at pp. 748-49.
49. A.I.R. 1952 Bom. 296.

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368 JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

"Statutory rules stand on an entirely different footing.

Parliament or Legislature, instead of incorporating the
rule into the statute itself, ordinarily authorises Govern-
ment to carry out the details of the policy laid down by
the Legislature by framing the rules under the statute,
and once the rules are framed, they are incorporated in
the statute itself and become part of the statute, and
the rules must be governed by the same principles as
the statute itself. And, therefore, although 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. /. T. Commissioner :

"It is well established that rules authorised to be made by an

enactment are as effectual as if they were part of the Act
itself, the question of their reasonableness, fairness or propriety
not being a matter for the courts to investigate."50
The judgment of the High Court was affirmed by the Supreme
Court in Subbarao v . I. T. Commissioner.51
But the contrary view has been taken in two decisions of the
Allahabad High Court52. Both these decisions assumed that the
courts have a jurisdiction to examine the reasonableness of
a statutory rule though no reason or authority is cited for the view.
The decision of the Supreme Court in T.B. Ibrahim v. Regional Trans-
port Authority 53 would appear to support the Madras and Bombay
views. Though in that case the question of reasonableness of statutory
rules was not directly raised, the reasoning used by the Courts is
equally applicable to the question. The important point concerns
the status of the statutory rules ; are they to be treated as part of the
enabling Act? if as the Supreme Court says, they are 4 4 part and parcel
of the statute itself", it is difficult to see on what basis the court can
assume a jurisdiction to examine their reasonableness. There is no
such general power with the courts to examine the reasonableness of
Acts of Parliament.

In one respect, however, the courts are bound to examine the

reasonableness of statutory rules as well as Acts of Parliament or Acts

50. A.I.R. 1952 Mad. 127, at 134.

51. A.I.R. 1957 S.G. 606.
52. Surya Pal Singh V. U.P. Government , A.I.R. 1951 All. (F.B.) 674 at
698; Brij Bhushan Lai F. State , A.I.R. 1952 AU. 868.
53. A.I.R. 1953 S.G. 79.

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 V.N. SHUKLA 369

of Legislature. The Constitution

the citizen. The freedoms are n
mitted to impose, by law, reaso
rights generally in the interest
to determine if the restrictions
able. But here the jurisdiction
the restriction imposed by an A
rule made thereunder, is on constitutional grounds, and is
different from the general reasonableness of statutory rules discussed
above.

Methods of Review

So far we have considered the principles which regulate the re-

view of delegated legislation by the courts. Now we shall discus
briefly the procedures by which the jurisdiction of the court t
determine the legality of a rule is normally invoked. The principle
governing the methods of review are the same for administrative
adjudication and administrative legislation. Therefore in the
following pages only those points strictly applicable to the latter
are discussed and the general nature of these remedies are not
discused.
(a) Ordinary litigation - The validity of statutory rules may be
challenged in ordinary litigation. Thus it is a defence to prosecution
for an offence created by statutory rules to set up the plea that the rule
are ultra vires and void55. Similarly the validity of staturory rules can
be pleaded as a defence to the enforcement of a civil liability, or where
a person has suffered damage owing to an invalid rule he will have a
good cause of action for bringing a regular suit56.
(b) Declaratory Suits - In England the validity of statutory ins-
truments may be challenged through declaratory actions against the
Attorney-General. In Dyson v . Attorney-General 57 an action was brought
to test the legality of notices issued by the Commissioner of Inland
Revenue under the Finance Act, 1910. The plaintiff contended that
the Commissioners had exceeded their powers in the way in which they
had issued the notices. It was held that a declaratory action would
lie under order 25, r. 5 against the Attorney-General as defendant
representing the Crown. But the grant of relief is discretionary and
the courts may refuse the declaration unless there is a real and not a
54. See Article 19, clauses (2) to (6).
55. e.g. Darshan Singh V . State of Punjab, A.I.R. 1953 S.C. 83.
56. Atma Ram V. State of Bihar , A.I.R. 1952 Pat. 359.
57. [1911] 1 K.B. 410.

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370 JUDICIAL CONTKOL OF DELEGATED LEGISLATION IN INDIA

fictitious or academic question to be tried68.

In India the court's power to make declarations accompanied
by any coercive direction, is derived from section 42 of the Specific
Relief Act which provides as follows:
" Any person entitled to any legal character, or to any right as
to any property, may institute a suit against any person
denying, or interested to deny, his title to such character
or right, and the court may in its discretion make therein
a declaration that he is so entitled and the plaintiff need
not in such suit ask for any further relief ;
Provided that no court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so."
Whether a suit for simple declaration of invalidity of an Act
or a statutory rule lie under section 42 of the Specific Relief Act, 1877,
is not authoritatively settled. The question has arisen before the
Privy Council in Thakur J agannath Bakas h Singh v. United Provinces 59
but was left open. The Privy Council said :
" In dismissing the appeal their Lordships wish to make
it clear that they express no opinion on two points mentioned
in the case

under section 42 of the Specific Relie

that a Provincial statute is ultra vires."
In Narain Pros ad v. Indian Iron and Steal Co.60 and Singara Singh
V. Callaghan 61, it was held that a suit for mere declflration that an Act
or Ordinance is ultra vires and void does not fall within the terms
of section 42, Specific Relief Act. The reasoning is that section 42
does not sanction every form of declaration. The person seeking re-
lief must ask for a declaration either in regard to any property or in
regard to any legal character. It will be difficult to maintain that a
person who asked for a mere declaration of vires of an Act or rule is
seeking a declaration of title or legal character within the meaning of
the section. On the other hand, it is open to argument why the expres-
sion " legal character " should not be held wide enough to include
the status of a man not to be subjected to or threatened to be sub-
jected to, a law which is ultra vires . Indeed, in the sphere of private

58. Russian Commercial Bank V. British Bank for Foreign Trade [1921] A.C.
438, at p. 452.
59. A.I.R. 1943 F.C. 29; on appeal to the Federal Court (1943) F.C.R.
72 ; on appeal to the Privy Council L.R. 73 I.A. 123, 134.
60. A.I.R. 1953 Caí. 695.
61. A.I.R. 1946 Lah. 247, at 255-56.

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 V.N. SHtJKLA 371

law, decisions have given quite a

character ".62
Assuming that a declaration of invalidity of a law does not fall
within the terms of section 42, Specific Relief Act, can such relief be
given by civil courts in exercise of their inherent power ? In other
words, is section 42 exhaustive with regard to declaratory action ?
Any commentary on the Specific Relief Act would show that there are
two views on the matter. Thus the High Court of Madras has taken
the view that section 42 should not be held exhaustive of declaratory
decrees.63 The other view is that courts have no jurisdiction to grant
a declaration apart from section 4264.

Petition for writs and orders

Article 226 of the Constitution empowers every High Court to

issue to any person or authority, including in appropriate cases the
state government, directions, orders or writs, including writs in the
nature of habeas corpus , mandamus , prohibition, quo warranto and cer-
tiorari, or any of them, for the enforcement of any of the rights con-
ferred by Part III and for " any other purpose ".65 A similar power
to use such writs and orders for the enforcement of the fundamental
rights has been conferred on the Supreme Court under Article 32.
The ambit of powers of the High Courts is wider than the powers
of the Supreme Court, for the former may exercise its jurisdiction not

62. Sabapath Singh V. Abdul Gajfar, (1896) 24 Cal. 107 ; Chairman of Municipal
Commissioners V. Bisseswar Chose, (1921) 26 C.W.N. 92 ;
Audh Bihari Lai V. Kesari Prasad , (1921) 63 I.C. 6 ; Satnarain Cur aw al la
V. Hanuman Prasad , A.I.R. 1946 Lah 85.
63. Secretary of State V. Subbarao , I.L.R. 58 Mad. 758, relying on Robbert
Fisher V. Secretary of State , 26 I.A. 16.
64. e.g. Kishori Lai V. Begrai, A.I.R. 1952 Punjab 367, and P.C. Thevar V.
Samban , A.I.R. 1928 Rangoon 513, relying on the Privy Council decision
in Sheo Parasan Singh V. Ram Nandan , 43 Cal. 694. Pollock and Mulla
are also of the view that section 42 is exhaustive of the cases in which a
decree that is merely declaratory can be made. (Indian Contract and
Specific Relief Act, 6th ed. p. 847). In a very recent decision of the
Supreme Court, Basheshar Nath V. i.T. Commissioner , A.I.R. 1959 S.C.
149, the following obiter suggests that the courts have jurisdiction to grant
declaration of invalidity of statutes : " Even then he might merely
obtain a relief declaring the legislation ultra vires the Constitution and
the court would not grant him any consequential relief. For that relief
he would have to approach the regular courts of law, when all
questions of law, apart from the mere constitutionality of the provi-
sion would be considered by the court on a contest between the
parties" - per Bhagwati J. at 163.
65. Constitution, Art. 226.

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372 JUDICIAL CONTROL OF DELEQATED LEGISLATION IN INDIA

only for the enforcement of the fundamental rights but also for " any
other purpose
It will be noted that the power given to the High Courts and the
Supreme Court is not confined only to issuing what are known as
prerogative writs. This is clear from the words used in Articles 226
and 32 : the High Courts may issue directions, orders or writs, including
writs in the nature of habeas corpus , mandamus etc. The word ť in-
cluding ' connotes an amplification of the ordinary meaning of the
writs in the nature of habeas corpus , mandamus etc.66
A perusal of the reported decisions since the commencement of
the Constitution would show that the invalidity of an Act or subordinate
law has been the foundation of a large number of cases invoking the
jurisdiction of the High Courts under Article 226, and of the Supreme
Court under Article 32. More commonly it is the order or writ in the
nature of mandamus which has been used as a means to raise the issue
of invalidity of legislation.67
There is no doctrine of immunity of the State or its officers, in
India. Article 226 expressly mentions that the writ may be issued on
the Government. Hence this procedure is being used as an expedi-
tious means of challenging the validity of an Act or a statutroty rule.
The applicant comes before the High Court with the allegation that a
particular law or statutroy rule is ultra vires , that its enforcement
against him affects his rights and that the High Court may issue a writ
of mandamus to order the Government or its servants to desist from en-
forcing the same against him.68 The High Court has thus been induced
to enter into the question of the vires of the impugned law. To illus-
trate, in Sheo Shanker V. State 69 the petitioner, characterised as dis-
criminatory the provisions of one of the rules under the Prohibition
Act which precluded a person from obtaining a permit to consume
intoxicating liquor unless he had a certain social and economic status
and on that ground, invited the High Court to issue a writ of mandamus
directing the State Government not to enforce the rule against him
and to withdraw or cancel the rule.

66. Rashid Ahmad V. M.B. Kairana , A.I.R. 1950 S.C. 163.

67. e.g. Chamber of Commerce V. State of U.P . A.I.R. 1955 S.C. 8 ;
K.C. Gajpati Natain Deo V. State of Orissa , [1954] S.C.R. 1 ;
Ram Jawaya V. State of Punjab , A.I.R. 1955 S.C. 549; Ram Prasad V.
State of Bihar, A.I.R. 1953 S.C. 215.
68. Mst. Govindi V. State of U.P. , A.I.R. 1952 All. 88 ; R.M. Shehsdari V.
District Magistrate , A.I.R. 1952 Mad. 120 ; Ratan Chandra V . Adhar Biswas,
A.I.R. 1942 Mad. 840 ; V. Menon v. Development Department , A.I.R.
1952 Mad. 715.
69. A.I.R. 1951 Nag. 58.

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 V.N. SHT7KLA 373

In Charnajitlal V. Union of India 70

the right sought to be enforced by
right of the petitioner himself. T
an application must be preceded by
of the duty in order to give the p
whether he should comply or not w
and Bombay73 High Courts, howev
flexible. But the court will not pa
statute upon complaint of one who
injured by its operation. The new
to have compensated for the non-
is the interpretation which is final
suit under section 42 of the Specific
We do not find instances in Eng
being used to challenge the validit
similar circumstances a declarator
case will be an appropriate remedy
Crown is not amenable to an order of mandamus .

Summary
To sum up, the judicial control of delegated legislation in India
is complete. The constitutional position of the Judiciary is such that
its rights to examine legislation, whether emanating directly from
Parliament or from subordinate authorities, cannot be barred. A
law purporting to confer the status of statutory finality on subordinate
legislation would not bind the courts.
On the procedural side, the recently acquired jurisdiction of the
High Courts and the Supreme Court to issue prerogative writs - parti-
cularly mandamus - has provided an expeditious remedy to an aggrieved
party to challenge the validity of an ultra vires rule.
But it is submitted that judicial control from its very nature
can only be of limited effectiveness. The courts may step in to pre-
vent the abuse of power or its exercise for purposes other than those
for which it is delegated. Any interference by the courts beyond that
will hamper the potentialities of delegated legislation - a process of
undeniable necessity and incontestable usefulness.

70. A.I.R. 1951 S.C. 41

71. Surendra V . State of W. Bengal , [1951] C.W.N. 255 ; Sataynor V . Com
cial Tax Officer, [1951] C.W.N. 583.
72. Sheo Shanker V . State A.I.R. 1951 Nag. 58.
73. F.N. Bals ara V. State A.I.R. 1951 Bom. 10; on appeal, A.I.R. 1
S.C. 318

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374 JUDICIAL CONTROL OF DELEGATED LEGISLATION IN INDIA

Effective control against the abuse of delegated powers of

legislation must come from the Legislature itself, parimarily at the
time of delegation, and secondarily in the supervision of the manner
in which they are exercised. Equally important is the need for public
co-operation in the rule-making process. In a democratic system the
administration must respond to the needs and views of those whom its
rules are going to affect. There is no surer test of the success of a
policy than that it is in tune with the genuine needs of the people, re-
ceiving their sympathy, good-will and satisfaction. Finally, we must
devise methods by which the rapidly growing subordinate legislation
shall become easily accessible, in an intelligible manner, to those con-
cerned. All these have to be done in India to achieve an efficient
system of delegated legislation.

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