Judicial and Parliamentary Control of Delegated Legislation: The Doctrine of Ultra Vires
Delegated legislation means rules, regulations, orders and notifications made by the Executive or other authorised bodies under powers given by the Legislature (Parliament or State Legislatures).
The Legislature passes the main law. The executive then makes detailed rules to put that law into practice. This is needed because the Legislature often lacks the time or technical knowledge to handle every small detail.
However, the Executive can only act within the limits set by the Legislature. Delegated legislation must not violate the Constitution, the parent Act, or the fundamental rights of citizens.
Two main methods control delegated legislation:
- Judicial Control – exercised by the courts.
- Parliamentary Control – exercised by Parliament or the State Legislature.
These controls prevent misuse of power and protect the rule of law.
Doctrine of Ultra Vires
“Ultra vires” means beyond legal powers or authority.
If the Executive makes a rule, regulation or notification that goes beyond the powers given by the parent Act, that delegated legislation is ultra vires and can be declared invalid by the courts. In simple terms, the Executive cannot make rules outside the authority given to it by the Legislature.
There are two main types:
1. Substantive Ultra Vires
When the delegated legislation goes beyond the powers in the parent Act, violates the Constitution, or conflicts with the Act itself.
2. Procedural Ultra Vires
When the authority fails to follow a mandatory procedure required by the parent Act while making the rules.
Judicial Control of Delegated Legislation
Judicial control is the power of the Supreme Court and High Courts to examine whether delegated legislation is valid.
Under Articles 32 and 226 of the Constitution, these courts can review delegated legislation and strike it down if it violates the Constitution or exceeds the powers given by the parent Act.
Grounds for Judicial Review of Delegated Legislation
Courts usually examine these grounds:
- Violation of the Constitution: Especially Fundamental Rights.
- Beyond the Powers of the Parent Act: Rules that go outside the authority granted.
- Conflict with the Parent Act: Delegated legislation cannot contradict the Act under which it is made.
- Improper Delegation: The Legislature cannot hand over its essential legislative functions (such as deciding the basic policy and principles of a law).
- Failure to Follow Mandatory Procedure: If the parent act requires a specific procedure and it is not followed.
- Unreasonableness and Arbitrariness: If the rule is clearly arbitrary, unreasonable or violates Article 14.
- Retrospective Operation: Delegated legislation cannot normally apply to past events unless the parent Act clearly allows it.
Important Judicial Decisions on Delegated Legislation
These Supreme Court cases explain the scope of judicial control:
1. In Re Delhi Laws Act (1951)
The Legislature can delegate subordinate powers, but it cannot delegate its essential legislative functions. It must itself decide the basic policy and principles of the law.
2. General Officer Commanding-in-Chief v. Dr Subhash Chandra Yadav (1988)
A rule is valid only if it:
- Follows the provisions of the parent Act, and
- Stays within the rule-making power given by that act.
If either condition fails, the rule is invalid.
3. Indian Express Newspapers v. Union of India (1985)
Subordinate legislation can be challenged if it violates the Constitution, goes beyond the parent Act, or is clearly arbitrary.
4. Kunj Behari Lal Butail v. State of Himachal Pradesh (2000)
Rule-making power cannot be used to introduce matters that are not covered by the parent Act or that go beyond its scope.
5. State of Tamil Nadu v. P. Krishnamurthy (2006)
The Court listed the main grounds for challenging delegated legislation:
- Lack of legislative competence
- Violation of Fundamental Rights
- Violation of any constitutional provision
- Failure to follow mandatory procedure
- Exceeding the authority given by the parent Act
- Clear arbitrariness or unreasonableness
The Court also noted that subordinate legislation is generally presumed valid until proved otherwise.
Parliamentary Control of Delegated Legislation
Parliamentary control is the supervision by Parliament over the rules, regulations and orders made by the Executive under delegated powers.
Since the Executive acts under Parliament’s authority, Parliament must ensure these powers are used properly.
1. Laying Before Parliament
Many acts require rules to be placed before Parliament. This is called the laying procedure. Members can examine the rules and raise objections.
Common forms:
- Simple Laying: Rules are placed for information only.
- Negative Resolution: Rules come into force but can be cancelled or changed by Parliament within a set time.
- Affirmative Resolution: Rules need Parliament’s approval before they can take effect or continue.
2. Questions and Discussions
Members can ask the concerned minister questions and raise debates about how delegated powers are being used.
3. Modification or Cancellation
Where the parent Act allows, Parliament can change or cancel rules that are unnecessary, unreasonable or go beyond the intended policy.
4. Parliamentary Committees
The Committee on Subordinate Legislation of the Lok Sabha and the corresponding Committee of the Rajya Sabha examine whether:
- The rules stay within the powers given by the parent Act.
- They violate the Constitution or any other law.
- They place an unreasonable burden on citizens.
- They make unauthorised retrospective changes.
- They involve unjustified use of public money.
- They have been properly published and laid before Parliament.
The committees report their findings and make recommendations.
5. Financial Control
Parliament can question expenditure, examine budget demands and hold the government accountable for the use of public funds.
Constitutional and Parliamentary Framework in India
The Constitution does not prescribe one single method for controlling all delegated legislation. Different parent acts provide different forms of parliamentary supervision.
Relevant constitutional provisions include:
| Constitutional Article | Subject |
|---|---|
| Article 245 | Extent of laws made by Parliament and by the legislatures of states |
| Article 246 | Subject matter of laws made by Parliament and by the legislatures of states |
| Article 32 | Right to approach the Supreme Court for enforcement of fundamental rights |
| Article 226 | High Courts’ power to issue writs |
| Article 105 | Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof |
| Article 118 | Power of each house to make its own rules of procedure |
Important Difference Between Judicial and Parliamentary Control
| Judicial Control | Parliamentary Control |
|---|---|
| Exercised by the Supreme Court and High Courts | Exercised by Parliament and its committees |
| Checks legality and constitutionality | Checks whether powers are properly exercised |
| Can declare ultra vires rules invalid | Can question, modify or disapprove rules (as allowed by the parent act) |
| Protects the Constitution and citizens’ legal rights | Ensures political accountability and legislative supervision |
Limitations of Parliamentary Control
Parliamentary control has practical limits:
- Parliament has limited time to examine the large volume of rules.
- Many rules are highly technical and need specialised knowledge.
- Committees cannot examine every rule in detail.
- Political factors sometimes weaken effective supervision.
- The Executive may exercise powers with little public discussion.
For these reasons, parliamentary control alone is not enough. Strong judicial review is also necessary.
Conclusion
Delegated legislation is essential for modern administration. Yet the power to make rules must not become a tool for misuse of authority.
Parliamentary control keeps the executive accountable to the legislature. Judicial control ensures that delegated legislation stays within the Constitution and the parent Act.
The doctrine of ultra vires is a key safeguard against the abuse of delegated powers. Both judicial and parliamentary controls are needed to uphold the rule of law, protect citizens’ rights and maintain responsible government.
Delegated legislation is valid only when it remains within the authority given by the Legislature and complies with the Constitution.
