Delegated legislation that it was an expression which covered a multitude of
confusion. He viewed it as an excuse for the Legislature, a shield for Executors
and a provocation to the Constitutional Jurist.- Justice P.B Mukherjee
Delegation of powers means the powers passed on by the higher authority to the
lower authority to make laws. Delegated legislation means the powers given by
the legislature to the executive or administration to enact certain laws. Under
Delegated Legislation there are mainly three kinds of control mechanism:
- Parliamentary Control;
- Judicial Control;
- Executive Control
Parliamentary Control Over Delegated Legislation:
This is up to Parliament to
give anyone the powers that it possesses, just as parliament transfers
legislative powers to some other entity, e.g. executive, they must ensure that
such powers are duly exercised by the government and there is no abuse of
authority that the executive is provided with.
Judicial Control Over Delegated Legislation:
The legislation that has been
delegated does not fall beyond the reach of the Judicial Review and in almost
all countries the courts are allowed to decide on the validity of delegated
legislation. Despite the presence of parliamentary control, judicial control of
delegated legislation is recognized as an integral form of control mechanism.
The fundamental justification for judicial review is based on the Courts'
constitutional obligation to obey the rule of law principle.
constitutionally controlled state, maintaining that the laws made by Parliament
are not Ultra vires under the Constitution is the essential function of the
judiciary, and that the delegated legislation enacted under the statute falls
within the limits of both the parent statute and the constitution. Judicial
control is considered to be a more effective form of control, since the courts
have the power to strike down a law if it is ultra vires with the parent statute
or the Constitution.
The term Ultra virus means that beyond power or authority
or lack of power. An act may be said to be Ultra Virus when it has been done by
a person or a body of persons which is beyond his, it’s or their power,
authority or Jurisdiction.
Procedural and Executive Control:
There is no particular procedure for it until
the legislature makes it mandatory for the executive to follow certain rules or
procedure. To follow a particular format it may take a long time which will
definitely defeat the actual objective of the act. Hence, procedural control
means that under Parent act certain guidelines are given which need to be
followed while whether it is mandatory or directory to follow it or not.
It includes three components:
- Pre-publication and consultation with an expert authority,
- Publication of delegated legislation.
- Laying of rules.
Following are the grounds on which judiciary can control/ review the
delegated legislation which is as follows:
When the Parent Act is ultra vires the Constitution: This is a situation where
it is observed that if the Parent Act violates the provisions of the
Constitution, it is void and unconstitutional.
The delegation made under such
Act is also void, in the case of Chintaman Rao vs. State of M.P, AIR 1951 SC
118, the District Collector under delegated authority passes an order for
prohibiting Beedi manufacturing, where it was held that the order passed is
ultra vires because it violates the fundamental right guaranteed under Article
19(1)(g) of Indian Constitution which talks about freedom of trade and
profession which has been guaranteed to all citizens of India.
In certain cases it can be observed that certain provisions of the Act may be
unconstitutional on the ground of being excessively delegated which doesn’t mean
that the whole act is unconstitutional.
- Delegated Legislation not authorised by the enabling act: In most countries
where there is excess of authorities it invalidated the subordinate legislation.
In the case of R. v. Minister of Health, Ex Parte Davi, (1929) 1 K.B. 618. Lord
Hewart, C.J, granted the prohibition to restrain the power of Minister if the
scheme made by the Minister is ultra vires of the enabling act which was the
Housing Act, 1925. In many cases the court has made an effective application of
its mind to seek that there is proper delegation of power and the power does not
goes beyond the scope of enabling authority by the delegated Act by defining the
limits of the law- making power.
Delegated Legislation is Ultra Vires the Constitution: In certain situations,
the Parent Act holds good and is within the limits of Constitution. However, the
delegated legislation made under the Parent Act may be ultra vires the
In Dwaraka Prasad v. State of U.P, Clause 3(2) (b) of the U.P. Coal Control
Order (issued by government under Section 3 of the Essential Supplies (Temporary
Powers) Act, 1946) was declared ultra vires the Constitution as it was violative
of Art. 19(1)(g) though the Parent Act was intra vires the Constitution. As per
Clause 3(2) (b) laid down that the State Coal Controller can exempt any person
from the license requirement for Coal business if he deems fit, were the Supreme
Court held that this clause is invalid as it give arbitrary and unguided powers
to the executive without any guidelines in the matter of exempting from license,
which violates Art. 19(1)(g).
In the case of Air India v. Nargesh Meerza, The regulation may be Air
India providing for termination of service of an air hostess on her first
pregnancy, was held violative of Article 14 of Constitution. In another case of
Central Inland Water Transport Corporation Ltd. v. Brajonath, AIR 1986 SC
1571 the Supreme Court declared that Rule 9 (1) of Central Inland Water
Transport Corporation Lt., Services and Discipline and Applied Rules, 1979 was
unconstitutional and being violative of Article 14, 39 and 41. The Court held
that such rules affected Article 14 , therefore, the impugned rules were struck
down as it violated Article 14.
Delegated Legislation is Ultra vires the Parent Act: The validity of delegated
legislation can be questioned on the ground that it is ultra vires of the Parent
Act. It was observed in the case of Ram Prasad v. State of U.P, ,the Uttar
Pradesh Panchayat Raj Rule 87 framed under the Parent Act (U.P Panchayat Act,
1947) was held to be ultra vires of the Parent Act.
In the case of Additional District Magistrate (Rev.) v. Sri Ram, the
Supreme Court held that the conferment of rulemaking power by an Act does not
enable the rule- making authority to make a rule which travels beyond the scope
of enabling Act. In this case Delhi Land Revenue Act and Delhi Reforms Act did
not empower rule making authority to classify land or to exclude any area from
preparation of record of right and annual register. The Court held that the
rules are ultra-virus the parent/ enabling act.
- Delegated Legislation Ultra Vires any General Law/ Rule of Law: The validity of
the Delegated Legislation can be challenged on the ground that it is ultra vires
the general law. It takes place, when the delegated makes a law in force
unlawful and unlawful act lawful.
In A.V. Nachane v. Union of India, AIR 1982 SC 1126 in this case the
rules framed by the Union Government under delegated authority by L.I.C. with
regard to bonus to Class-III and Class- IV employees was held ultra vires since
it supersedes the terms of the Bonus Settlement 1974.
Unreasonableness:Generally, a statute cannot be challenged on the ground of unreasonableness. The
leading case on unreasonableness is Kruse v. Johnson, (1898) 2 QB 91, in
this case the Parent Act conferred power on the County Council of Kent to make
bye- laws. A bye- law was made ‘ prohibiting any person from playing music or
singing in any public place or highway within fifty years of any dwelling
house.’ As it was reasonable, the same was therefore held ultra vires.
Mala fide (Bad Faith):
In simple words, the meaning of Mala fide is ‘bad faith’ or ulterior motive. In
A.K. Ray v. India, AIR 1982 SC 710, the Supreme Court rejected the argument
that the government’s failure to bring into force certain provisions of the 44th
Amendment of the Constitution was mala fides. It is extremely difficult to prove
mala fide before the Court.
Hence, the malafide for challenging a delegated legislation is resorted to in
rate cases where strong proof of bad faith is available. In UK and in the USA,
the rule to exclude enquiry into good faith of a legislature is applied to all
subordinate legislative bodies as well.
Excessive Delegation:In India, only in few cases, delegation of law making power is struck down by
the Courts on the ground of excessive delegation.
Sub- delegation:A general and a basic rule from the law of agency is that a delegate cannot re-
delegate its authority, but in certain cases it is not applied to the countries
who have written constitution. The principle of sub delegation is subject to
criticism and not accepted, unless there is a provision express or implied to
that effect. Hence, the validity of an act under sub-delegation can be
questioned ultra vires.
Non-compliance of Court’s order:If it has been observed that the government tries to escape and avid the
direction given by the Supreme Court, then the Court has the power to struck
down that particular act.
Non-application of Mind:Delegated legislation can also be struck down by the judiciary if it is observed
that the delegatee has not made an application of their mind in delegating the
powers to the relevant facts and situations while taking the decisions.
Therefore, from the above explanation one would clearly understand the kinds of
control mechanism over delegated legislation and with deep analysis of Judicial
Control over delegated legislation.
- Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th
Ed., Vol. II, Wadhwa Nagpur
- Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed.,
Allahabad Law Agency, Faridabad, 2011.
- Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency,
- Judicial control of delegated legislation in India, V. N Shukla, Journal
of the Indian
- Law Institute , Vol. 1, No. 3 (Apr., 1959), pp. 357-374 (18 pages)