Abstract

The growth of delegated legislation in modern governance has made judicial oversight an indispensable constitutional safeguard. This article examines the scope and limits of judicial control over subordinate legislation with particular emphasis on Indian law. It analyses the doctrines of substantive and procedural ultra vires through landmark judgements from India, the United Kingdom, and the United States and traces how courts have responded to the exercise of delegated legislative power across these jurisdictions.

The article further examines the judicial treatment of the demonetisation notification of 2016, which raised fundamental questions about executive action under delegated authority and culminated in the Constitution Bench decision in Vivek Narayan Sharma v. Union of India (2023). The analysis concludes that while judicial review of delegated legislation is a vital constitutional check, courts tend to exercise greater deference in matters of economic policy than in matters directly engaging fundamental rights. Effective judicial control ultimately depends on the precision with which Parliament frames enabling legislation.

Keywords

• Delegated legislation
• Ultra vires
• Judicial review
• Demonetisation
• Subordinate legislation
• Rule of law
• Separation of powers

I. Introduction

Modern governance cannot function without a significant degree of legislative delegation. Parliament, operating under severe time constraints and confronted with increasingly specialised technical and administrative matters, inevitably entrusts a portion of its law-making function to executive authorities. This transfer of authority—from the legislature to ministers, departments, regulatory bodies, and local governments—is what is broadly termed delegated or subordinate legislation.

While the practical necessity of delegated legislation is widely acknowledged, its proliferation raises serious questions of constitutional propriety. The core concern is that law-making power, which under democratic theory belongs exclusively to elected representatives, comes to be exercised by unelected officials, often with limited transparency and scrutiny. This tension between administrative efficiency and democratic accountability lies at the heart of every debate over the legitimacy of subordinate legislation.

The judiciary has historically served as the principal mechanism for disciplining the exercise of delegated power. Through the doctrine of ultra vires, courts examine whether a statutory instrument, rule, regulation, or bye-law falls within the scope of authority conferred by the parent statute. Where it does not, the subordinate legislation is liable to be declared void. This article examines the grounds upon which such control is exercised, traces the development of relevant doctrines in India, the United Kingdom, and the United States, and considers the demonetisation exercise of 2016 as a contemporary illustration of the tensions inherent in executive law-making.

Key Themes Discussed in the Introduction

• Legislative delegation in modern governance
• Administrative efficiency versus democratic accountability
• Judicial oversight of delegated legislation
• The doctrine of ultra vires
• Comparative constitutional developments
• Demonetisation as a case study in delegated authority

II. The Concept and Growth of Delegated Legislation

Delegated legislation refers to any law made by a body other than the legislature, acting under authority expressly conferred by a primary enactment. Parliament enacts ‘framework’ or ‘skeleton’ statutes, leaving the subordinate authority to fill in operational details through rules, regulations, notifications, and bye-laws. The pattern is well established: the enabling act states the legislative policy, and the delegate translates that policy into workable rules.

The growth of delegated legislation in India has been nothing short of remarkable. Between 1973 and 1977 alone, Parliament enacted approximately 300 statutes, while the executive machinery produced over 25,000 rules and subordinate instruments during the same period.¹ This staggering ratio illustrates how delegated legislation has come to dwarf primary legislation in quantitative terms, even as the latter retains superior constitutional standing.

Growth of Delegated Legislation in India

Period	Primary Legislation Enacted	Rules and Subordinate Instruments
1973–1977	Approximately 300 statutes	Over 25,000 subordinate instruments

The Supreme Court of India addressed the constitutional limits of delegation in the landmark In Re: Delhi Laws Act case,² where the majority held that while Parliament may delegate ancillary law-making functions to the executive, it cannot abdicate its essential legislative function—that is, the function of laying down legislative policy—to any external body. This principle remains the cornerstone of Indian constitutional law on delegation.

Constitutional Principle from In Re: Delhi Laws Act

Issue	Judicial Position
Delegation of ancillary legislative functions	Permissible
Delegation of essential legislative function	Not permissible
Determination of legislative policy	Must remain with Parliament

Essential Features of Delegated Legislation

• Authority originates from a parent or enabling statute.
• Rules, regulations, notifications, and bye-laws are common forms.
• The legislature lays down policy, while the delegate implements details.
• Delegation is justified by administrative necessity and technical expertise.
• Judicial review acts as a constitutional safeguard against misuse of delegated power.

III. Judicial Control: A Comparative Overview

A. The United Kingdom

In the United Kingdom, judicial review of delegated legislation has traditionally followed a restrained course. Courts have intervened principally on grounds of procedural irregularity and ultra vires but have been reluctant to second-guess executive policy choices. The position shifted substantially following the enactment of the Human Rights Act, 1998, which requires all legislation—including subordinate instruments—to be compatible with Convention rights.

The decision of the House of Lords in Anisminic Ltd v. Foreign Compensation Commission broadened the reach of judicial review by holding that errors of law—not merely jurisdictional errors in the narrow sense—could render a decision ultra vires. This expansive approach has had lasting implications for the review of subordinate legislation. More recently, in R (Privacy International) v. Investigatory Powers Tribunal, the Supreme Court affirmed that even tribunals created by delegated legislation remained subject to judicial review, reflecting the courts’ enduring commitment to constitutional oversight.

B. The United States

The United States Constitution vests all legislative power in Congress. The Supreme Court developed the non-delegation doctrine as a constitutional limit on Congress’s ability to transfer its law-making authority to the executive branch. In Schechter Poultry Corp. v. United States, the Court struck down the National Industrial Recovery Act on the ground that Congress had delegated legislative power without supplying an ‘intelligible principle’ to guide its exercise. While the non-delegation doctrine has rarely been applied with full rigour since, it retains constitutional significance as an outer limit on permissible delegation.

The doctrine of judicial deference, articulated in Chevron USA Inc. v. Natural Resources Defence Council, subsequently directed courts to defer to an agency’s reasonable interpretation of an ambiguous statutory provision. This doctrine significantly curtailed judicial intervention in the substance of administrative rule-making for several decades, though its scope has been considerably narrowed by more recent Supreme Court decisions.

C. India

The Indian Constitution does not expressly prohibit delegation but imposes limits on its extent through the doctrine of excessive delegation. Under Article 13, any law inconsistent with or in derogation of fundamental rights is void to that extent. The Supreme Court has consistently held that subordinate legislation must conform both to the enabling statute and to the Constitution. Unlike its counterparts in the United Kingdom and Australia, the Indian judiciary has at times demonstrated a more interventionist posture in reviewing subordinate legislation, particularly where fundamental rights are at stake.

IV. Grounds Of Judicial Control Under Indian Law

Courts in India exercise control over delegated legislation principally through two categories of review:

• Substantive Ultra Vires
• Procedural Ultra Vires

Ultra vires, literally translated as ‘beyond powers’, constitutes the primary basis for the invalidation of subordinate legislation.

Type of Review	Meaning
Substantive Ultra Vires	Concerns the substance and scope of delegated legislation.
Procedural Ultra Vires	Concerns compliance with procedural requirements prescribed by law.

A. Substantive Ultra Vires

1. Excess Of Enabling Power

Subordinate legislation must remain strictly within the bounds of the authority conferred by the enabling statute. Any rule that travels beyond those bounds is void.

In Dwarkanath v. Municipal Corporation of Delhi, the central government exercised its rule-making power under the Prevention of Food Adulteration Act, 1954, to prescribe labelling requirements for food products. Rule 32, framed thereunder, mandated that every label carry the manufacturer’s name, address, and batch number. The court examined whether this prescription exceeded Section 23(1) of the Act—which authorised regulations only to prevent misleading labelling as to quantity or quality—and affirmed the principle that a delegate may not exercise any power that the parent statute has not, expressly or by necessary implication, conferred.

2. Conflict With The Parent Statute

Delegated legislation may not contradict or override the very statute under which it purports to be made.

In Ram Prasad v. State, Rule 87, framed under the relevant Act, reduced the quorum of a Panchayati Adalat Bench below the number prescribed by the parent statute. The court declared the rule invalid as being repugnant to the enabling enactment, reaffirming that a delegate may not use its rule-making power to override the legislative intent that the parent statute has expressly articulated.

3. Unreasonableness

The treatment of unreasonableness as a ground for challenge varies across jurisdictions.

England

In England, bye-laws enacted by local authorities may be struck down as manifestly unreasonable. Lord Russell C.J. observed in Kruse v. Johnson that a bye-law could be invalidated if it was manifestly unjust, revealed bad faith, or involved such oppressive interference with rights as no reasonable legislature could have intended to authorise.

India

In India, however, courts have consistently declined to apply a reasonableness standard to statutory rules made by central or state governments.

In Mulchand v. Mukand and in Subbarao v. Income Tax Commissioner, it was held that the validity of a statutory rule, once within the enabling power, is not subject to challenge merely on grounds of unreasonableness. The underlying rationale is that ministers and departments, being answerable to Parliament, enjoy a degree of political accountability that warrants judicial restraint. Local bye-laws, by contrast, are not subject to any equivalent form of parliamentary scrutiny and remain amenable to challenge on grounds of unreasonableness.

4. Malafide Exercise Of Power

Where the rule-making authority has exercised its power for a collateral purpose or with a dishonest motive, the subordinate legislation is liable to be struck down as ultra vires.

Although Indian courts have not yet invalidated a statutory rule solely on this ground, the principle is well-recognised in public law. The courts’ willingness to entertain the argument has been affirmed in principle, and any rule that can be shown to have been made in bad faith or in pursuit of an improper purpose would be susceptible to challenge.

B. Procedural Ultra Vires

Procedural ultra vires arises where the maker of subordinate legislation fails to comply with the procedural requirements prescribed by the enabling statute or by general law.

The critical distinction is between the following:

• Mandatory Requirements – Failure to comply renders the subordinate legislation void.
• Directory Requirements – Failure may constitute an irregularity without necessarily vitiating the instrument.

In Radhakrishna v. State of Madhya Pradesh, the enabling statute required that rules be framed by the state government with the prior concurrence of the central government. Rules framed without such concurrence were declared unconstitutional.

Similarly, in Raja Buland Sugar Co. Ltd. v. Municipal Board, Rampur, the Municipal Board’s failure to publish its proposals in a Hindi newspaper—as the U.P. Municipalities Act, 1916, expressly required—and its substitution of an Urdu daily were found to vitiate the consequent levy on the appellant company.

In Banwarilal v. State of Bihar, regulations governing mining activities were framed without referring them to the mining board as the parent statute required. The court declared the regulations void, observing that the consultation requirement existed to protect the public interest and to ensure the participation of those with domain expertise before the rules came into effect.

Key Takeaways: Judicial Control Of Delegated Legislation

• Judicial review ensures constitutional and statutory compliance of delegated legislation.
• India applies both substantive and procedural ultra vires review.
• Excessive delegation remains subject to constitutional scrutiny.
• Delegated legislation cannot override the parent statute.
• Procedural safeguards are essential for the validity of subordinate legislation.
• Indian courts have adopted an interventionist approach where fundamental rights are implicated.

V. Judicial Control and Demonetisation: A Contemporary Illustration

A. Background

On the evening of 8 November 2016, the Union Government issued a gazette notification under Section 26(2) of the Reserve Bank of India Act, 1934, declaring that currency notes of ₹500 and ₹1,000 denominations would cease to be legal tender with effect from midnight. This measure—popularly referred to as demonetisation—was among the most consequential and contested exercises of executive power in post-Independence India. The notification was subsequently given statutory form by the Specified Bank Notes (Cessation of Liabilities) Act, 2017.

The constitutional validity of the notification turned principally on the scope of Section 26(2) of the RBI Act. Critics argued that the provision conferred power only to demonetise a particular ‘series’ of notes, not an entire denomination. On this reading, the notification—which withdrew all notes of two denominations at a stroke—was substantively ultra vires the enabling statute. The challenge also raised questions about the adequacy of prior consultation between the union government and the Reserve Bank of India before the notification was issued.

Key Constitutional Issues Raised

Issue	Description
Scope of Section 26(2)	Whether the RBI Act permits withdrawal of an entire denomination or only a specific series of notes.
Ultra Vires Challenge	Whether the notification exceeded the powers granted under the enabling statute.
Consultative Process	Whether adequate consultation occurred between the union government and the RBI.

B. The Supreme Court’s Decision

In Vivek Narayan Sharma v. Union of India,¹⁸ a Constitution Bench of the Supreme Court upheld the validity of the demonetisation notification by a majority of 4:1. The majority held that the expression ‘any series’ in Section 26(2) of the RBI Act was broad enough to encompass all notes of a particular denomination and that a consultative process with the Reserve Bank had preceded the notification. The majority further held that the measure did not, on its face, amount to an arbitrary or disproportionate exercise of executive power.

The lone dissent by Justice B.V. Nagarathna is of particular significance to the doctrine of delegated legislation. In her view, demonetisation of an entire denomination—as distinct from the withdrawal of a specific series—was a measure of such far-reaching economic consequence that it required the initiative to originate with the central government by way of a formal recommendation to the RBI, rather than a notification issued at the proposal of the union executive alone. On this construction, the provision authorised a reactive, specific exercise of power and not the broad, proactive withdrawal of two entire denominations from circulation. The notification was therefore, in Justice Nagarathna’s view, ultra vires the enabling statute.

The demonetisation litigation serves as a vivid illustration of the difficulty courts face when reviewing exercises of delegated power that carry significant macroeconomic consequences. The majority’s broad construction of the enabling provision reflects a degree of judicial deference to executive judgement in matters of economic policy, while the dissent articulates a more stringent insistence on explicit legislative authorisation for consequential departures from established norms—an approach that is more faithful to the classical theory of ultra vires.

Majority and Dissent: Comparative View

Aspect	Majority Opinion	Justice B.V. Nagarathna’s Dissent
Interpretation of “Any Series”	Includes all notes of a denomination.	Limited to specific series of notes.
Legislative Authority	Notification valid under Section 26(2).	Required broader legislative authorisation.
Judicial Approach	Deference to economic policy.	Strict ultra vires scrutiny.

VI. Parliamentary Control as a Complementary Mechanism

While judicial review is the most visible mechanism of control over delegated legislation, parliamentary oversight serves a complementary function. In India, Parliament exercises scrutiny over subordinate legislation through the Committee on Subordinate Legislation in each House, which examines whether rules and regulations framed under enabling statutes are consistent with the legislative mandate and reports any excesses or anomalies to the respective House.

The effectiveness of parliamentary control has, however, been questioned in practice. Wade and Forsyth observe that in a parliamentary system operating on the principle of majority rule, formal legislative controls over delegated legislation are rendered largely theoretical, since the government of the day ordinarily commands the very majority that would need to act as a check upon it. 19 This observation reinforces the indispensability of judicial review as a non-partisan and structurally independent check on executive law-making.

Mechanisms of Control Over Delegated Legislation

• Judicial Review – Reviews the legality and constitutionality of delegated legislation.
• Parliamentary Oversight – Scrutiny through Committees on Subordinate Legislation.
• Procedural Safeguards – Ensures compliance with enabling statutes.
• Ultra Vires Doctrine – Prevents excesses beyond delegated authority.

VII. Conclusion

Delegated legislation is an unavoidable feature of the modern administrative state. The complexity and volume of contemporary governance make it impracticable for Parliament to legislate on every operational detail. At the same time, the delegation of legislative authority carries an inherent risk of unaccountable law-making and executive overreach. The judiciary, through the doctrines of substantive and procedural ultra vires, provides the principal constitutional safeguard against these risks.

The analysis in this article demonstrates that Indian courts have developed a coherent doctrinal framework for reviewing subordinate legislation but that the intensity of review varies with the subject matter. In matters engaging fundamental rights, the courts have been vigilant and interventionist. In matters of economic policy—as illustrated by the demonetisation litigation—courts have shown a marked tendency towards deference. The disagreement between the majority and the dissent in Vivek Narayan Sharma reflects a deeper jurisprudential tension between institutional deference and constitutional discipline that is unlikely to be resolved definitively.

A principled and consistent approach to judicial control over delegated legislation ultimately depends on the precision with which Parliament drafts its enabling statutes. Broad and generic grants of power make judicial control difficult and effectively insulate executive action from meaningful scrutiny. Parliament bears an equal responsibility for ensuring that the rule of law is not silently surrendered through the mechanism of legislative delegation. The effectiveness of the courts as a check on subordinate legislation is, in the final analysis, only as strong as the enabling words that the legislature chooses to write.

Key Takeaways

• Delegated legislation is essential for modern governance.
• Judicial review remains the primary safeguard against executive overreach.
• The doctrines of substantive and procedural ultra vires are central to constitutional control.
• Demonetisation litigation highlights the tension between judicial deference and constitutional accountability.
• Parliamentary scrutiny complements, but does not replace, judicial oversight.
• Careful drafting of enabling statutes strengthens the rule of law.

Endnotes:

1. M.P. Jain & S.N. Jain, Principles of Administrative Law (7th edn., Wadhwa and Company Nagpur, 2011) 51.
2. In Re: Delhi Laws Act, AIR 1951 SC 332.
3. Human Rights Act 1998 (UK), s 4; see also R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) 131 (Lord Hoffmann).
4. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL).
5. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
6. Schechter Poultry Corp v United States 295 US 495 (1935).
7. Chevron USA Inc. v Natural Resources Defence Council, 467 US 837 (1984). Note that the Chevron doctrine was substantially curtailed in Loper Bright Enterprises v Raimondo, 603 US ___ (2024).
8. Hamdard Dawakhana v Union of India AIR 1960 SC 554; see also Agricultural Market Committee v Shalimar Chemical Works Ltd (1997) 5 SCC 516.
9. Dwarkanath v Municipal Corporation of Delhi AIR 1971 SC 477.
10. Ram Prasad v State AIR 1953 Raj 127.
11. Kruse v Johnson [1898] 2 QB 91, 99–100 (Lord Russell CJ).
12. Mulchand v Mukand AIR 1952 Bom 296.
13. Subbarao v Income Tax Commissioner AIR 1954 Mad 564.
14. Kruse v Johnson [1898] 2 QB 91, 99 (Lord Russell CJ); see also General Officer Commanding-in-Chief v Dr Subhash Chandra Yadav (1988) 2 SCC 351.
15. Radhakrishna v State of Madhya Pradesh AIR 1959 MP 178.
16. Raja Buland Sugar Co Ltd v Municipal Board, Rampur AIR 1965 SC 895.
17. Banwarilal v State of Bihar AIR 1961 Pat 24.
18. Vivek Narayan Sharma v Union of India (2023) 3 SCC 1 (Constitution Bench, majority: Nazeer, Joseph, Bhat and Trivedi JJ; dissent: Nagarathna J).
19. H.W.R. Wade & C.F. Forsyth, Administrative Law (11th edn, Oxford University Press, 2014) 731–732.

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