This article is written by Saloni of 7th Semester of BBALL.B. of Bhagat Phool Singh Mahila Vishwavidyalaya of Department of Laws, an intern under Legal Vidhiya
Delegated legislation pertains to the transfer of legislative authority from a higher authority to a lower authority, such as the executive or administration. It is sometimes referred to as secondary legislation or subordinate legislation. Through this delegation, the subordinate authority is able to implement particular laws and regulations within the parameters and jurisdiction set forth by the parent statute. Effective governance requires the delegation of powers, but in order to guarantee that these powers are used responsibly and within the bounds established by the parent statute and the constitution, control mechanisms must be in place. In the piece of paper we will analyse the concept of judicial control in delegated legislation.
Keywords: Judicial review, delegated legislation, parent act, procedural ultra vires, substantive ultra vires
The three primary mechanisms for controlling delegated legislation are the judicial, executive, and legislative branches. These checks and balances serve to maintain the legality, constitutionality, and procedural compliance of the laws enacted by delegated legislation. This guarantees that the legislation that has been delegated adheres to the rule of law, preserves fundamental rights, and reflects the intent of the legislature. Judicial control has been the most notable controlling measure in the control mechanism.
MEANING OF JUDICIAL CONTROL
Judicial controls on delegated law are the procedures by which the courts supervise and examine rules issued by executive or administrative agencies acting under main legislation’s authority. These safeguards are meant to guarantee that delegated legislation abides by the legality and fairness principles and stays within the parameters established by the enabling legislation.
Classification of control mechanism of delegated legislation is exercise at two stages:
- When the legislature transfers legislative authority to the executive
- When the executive is using the authority that has been delegated to it.
CLASSIFICATION OF CONTROLS OVER DELEGATED LEGISLATION
There are three categories into which the controls over delegated legislation fall:
- Judicial control
- Legislative control and
- Procedural control
Judicial control has been the most notable controlling measure in the control mechanism. The legislature grants the executive authority and ensures that it is exercised properly by monitoring its usage. The doctrine of supra vires is utilized to verify the legitimacy of the executive branch. A rule is considered extra vires if it exceeds the authority granted by the parent statute.
Legislative bodies have the authority to enact laws and to transfer powers to other executive bodies for more effective operation. However, when the legislature transfers power to the government, an executive body, or any other authority, it is crucial for the legislature to maintain oversight and control over the transferred authority.
The purpose of procedural control is to guarantee that the public is effectively involved in the process of creating delegated laws.
BASIS OF JUDICIAL CONTROL: RULE OF LAW
The phrase “rule of law” was first used in England, and India has adopted it. This concept requires that no person should be subjected to harsh or arbitrary treatment. According to article 13 of the Indian constitution rule of law means law means law of land. In 1885 prof. A.V Dicey developed this concept and propounded three postulates of rule of law, in his book ‘the law and the constitution’.
- Absence of arbitrary power
- Equality before law
- Predominance of legal spirit
JUDICIAL CONTROL: DOCTRINE OF ULTRA VIRES
Judicial control over the delegated legislation is exercise by applying two tests
- Substantive ultra vires and
- Procedural ultra vires
Substantive ultra vires: ultra vires means beyond powers, when a subordinate legislation goes beyond the scope of authority conferred on the delegate to enact, it is known as substantive ultra vires.
KINDS OF SUBSTANTIVE ULTRA VIRES
- Constitutionality of the patent act
- Constitutionality of delegate legislation
- Carrying out the purpose of the act
- Power to modify the parent act
- Malafides of the rule maker
- Unreasonableness of the rules
- Retrospective operation
- Sub delegation
Procedural ultra vires: when a subordinate legislation is enacted without complying with the procedural requirement prescribed by the parent act, it is known as procedural ultra vires. Judicial control over delegated legislation is exercise by applying the doctrine of ultra vires in a number of circumstances:
- Where the parent act is ultra vires the constitution
- Where delegated legislation is ultra vires the constitution
- In situations where the parent act supersedes delegated law
- Where parent act is ultra vires the constitution
The limits within which the legislature is authorized to function are specified by the constitution. The rules and regulations created under them would likewise be void if the parent act, or enabling act, is extra vires the constitution. The parent act is deemed to be beyond the scope of the constitution if it contravenes:
- Express constitutional limits
- Implied constitutional limits
- Constitutional rights
Express constitutional limits
If the parent act violates express limitations outlined in the constitution, the rules and regulations become invalid. Article 246 of the Constitution assigns the states and the union respective legislative powers.
Implied constitutional limits
In the Delhi Laws Act case, implied constitutional boundaries were stated. The legislature cannot assign any important legislative duties to another body, and in the event that it does, the parent act will violate the Constitution.
The Supreme Court established in St. Johns Teacher Training Institute v. Regional Director, National Council for Teacher Education (2003) that delegated legislation is predicated on the idea that the legislature is unable to anticipate every administrative challenge that may occur during the implementation of a statute. Delegated legislation is intended to complement the enabling statute rather than replace it, and it is made to address those needs.
It is not within the authority of any legislature to enact laws that violate the commerce clause, article 21 or 300A’s right to property. Furthermore, even though the parent act complies with legislative requirements, there is still another basis for contesting its validity: it contravenes part III of the constitution by placing what can be considered an unjustifiable limitation on the exercise of fundamental rights.
Where delegated legislation is ultra vires the constitution
Delegated legislation may occasionally be found unconstitutional on the grounds that it is ultra vires the constitution, even when the delegated law may be consistent with the parent act and not be ultra vires the constitution.
Arbitrary power is ultra vires the constitution
The court invalidated the Andhra Pradesh catering establishments (fixation and display of pricing of foodstuffs) order, 1978 in the matter of K. Panduranga v. State of Andhra Pradesh. The order required hoteliers to sell all seven of the eatable products listed in the schedule. The Constitution’s article 19(1)(g) was declared to be violated by any order forcing someone to conduct business against their will, according to the Court.
Theory of derivative immunity
The question is whether the delegated legislation made under the parent act can be challenged in cases where the parent act is protected by article 31-B of the constitution due to its placement in the ninth schedule and cannot be disputed in court. It was decided in Vasanlal Maganbhai v. State of Bombay (1961) and Latafat Ali Khan v. State of Uttar Pradesh that the delegated legislation could not be challenged as violating fundamental rights on the basis of derivative protection if the parent was saved under article 31B and could not be challenged.
Where delegated legislation is ultra vire the parent act
It is possible to challenge delegated legislation on the grounds that it exceeds the scope of the parent act or enabling statute. A regulation that is not permitted by the parent statute cannot be made by the delegate. Legislation that has been delegated authority and exactly matches the authority granted can be deemed lawful. Whether or not the power has been overreached, misused, or is in conflict with the parent act determines whether or not delegated legislation is lawful.
- Delegated legislation in excess of the power conferred by the patent act
- Delegated legislation in conflict with parent act
- Delegated legislation in conflict with the prescribed procedure of the parent act
- Malafide: bad faith
In the case of Chintaman Rao v. Madhya Pradesh, 1951, the parent legislation gave the deputy commissioner the authority to forbid the production of bidis in notified areas during the agricultural season, as long as the deputy commissioner issued a set order outlining a complete prohibition on bidi manufacture. The deputy commissioner’s order was extra vires since the act that gave rise to it infringed upon the basic freedom to engage in any trade, business, profession, or occupation that is protected by article 19(1)(g) of the Indian Constitution. The court decided that the injunction placed unjustifiable limitations on the enjoyment of basic rights.
Dwarka Prasad v. state of Uttar Pradesh (1954), the U.P. control order was made under the essential supplies act (temporary powers) act, 1946. Despite the constitutionality of the parent legislation, the Supreme Court ruled that clause 3(2)(b) of the order was unconstitutional because it infringed upon the right to trade and business, as stipulated in article 19(1)(g) of the Indian Constitution. The order’s clause 3(1) stated that only those with a license may conduct business in the coal industry. Furthermore, as stated in clause 3(2)(b), the state coal controller has the authority to waive the licensing requirement for any individual. The court determined that clause 3(2)(b) was beyond the scope of article 19(1)(g) since it gives the executive arbitrary authority to provide exemptions.
According to the Supreme Court’s ruling in Employees Welfare Association v. Union of India (1990), “the validity of the subordinate legislation can be challenged on such grounds as any other legislative acts can be challenged.” The court came to the following conclusion after citing several important cases: “When a subordinate legislation’s validity is contested, the court must take into account the nature, purposes, and overall design of the instrument. Based on this analysis, it must determine the precise boundaries and purposes of the authority granted by the governing law.”
The legality of the Air India service regulation that permits an airhostess to terminate her services upon her first pregnancy was contested in the case of Air India v. Nargesh Meerja. According to the supreme court, the rule was grossly arbitrary, irrational, repugnant to the ideas of a civilized society, and it interfered with people’s natural tendencies. It is “not a disability, but an inevitable byproduct of marriage and an unchangeable aspect of married life.”
In the Meenakshi v. University of Delhi case, attendance at any Delhi school for the previous two years was required in order to be considered for admission to the medical college in Delhi. The requirement was deemed arbitrary and irrational by the Supreme Court.
In the 1992 case of Mohini Jain v. State of Karnataka, it was decided that regulations created by the government under the 1984 Educational Institution (Prohibition of Capitation Fees) Act were invalid since they did not serve the intended purpose. In this instance, the statute forbade capitation fees, but the regulations established therein stipulated a fee—capitation fees, not tuition costs—that private medical colleges might impose. The regulations stipulated that Karnataka and non-Karnataka students would pay fees of Rs. 25,000 and 60,000, respectively, for non-merit students and Rs. 2000 for merit students.
We have discussed the major grounds on which the courts in this country review the action of administrative agency exercising rule making power. Generally speaking, a branch of ultra vires doctrine can be rationally defined as any basis for judicial review. In conclusion it can be said that judicial review of delegated legislation is more of symbolic value rather than of much practical value as a control mechanism over delegated legislation.
- (St. Johns Teachers Training … vs Regional Director, National , 2003) https://ijirl.com/wp-content/uploads/2022/01/DELEGATED-LEGISLATION-A-NECESSARY-EVIL.pdf
- (Vasantlal Maganbhai Sanjanwala vs The State Of Bombay , 1960) https://indiankanoon.org/doc/1340429/
- (Latafat Ali Khan And Ors. vs The State Of U.P, 1971) https://indiankanoon.org/doc/3607498/#:~:text=Imposition%20of%20Ceiling%20on%20Land,(1)%20of%20the%20Constitution.
- (Chintaman Rao vs The State Of Madhya Pradeshram , 1950) https://lawtimesjournal.in/chintaman-rao-and-ors-v-state-of-madhya-pradesh/
- (Messrs. Dwarka Prasad Laxmi … vs The State Of Uttar Pradesh, 1954) https://lawtimesjournal.in/dwarka-prasad-laxmi-narain-vs-state-of-uttar-pradesh-and-ors/
- (Air India Etc. Etc vs Nergesh Meerza & Ors. Etc., 1981) https://lawbhoomi.com/air-india-v-nargesh-meerza/#:~:text=The%20case%20of%20Air%20India,of%20the%20Constitution%20of%20India
- (Meenakshi Malik vs University Of Delhi & Ors, 1989) https://indiankanoon.org/doc/864320/
- (Miss Mohini Jain vs State Of Karnataka, 1992) https://legalvidhiya.com/mohini-jain-v-state-of-karnataka-1992-fundamental-right-to-equality-of-opportunity-under-article-14-of-indian-constitution/
 (St. Johns Teachers Training … vs Regional Director, National , 2003) https://ijirl.com/wp-content/uploads/2022/01/DELEGATED-LEGISLATION-A-NECESSARY-EVIL.pdf
 (Latafat Ali Khan And Ors. vs The State Of U.P, 1971) https://indiankanoon.org/doc/3607498/#:~:text=Imposition%20of%20Ceiling%20on%20Land,(1)%20of%20the%20Constitution.
 (Chintaman Rao vs The State Of Madhya Pradeshram , 1950) https://lawtimesjournal.in/chintaman-rao-and-ors-v-state-of-madhya-pradesh/
 (Messrs. Dwarka Prasad Laxmi … vs The State Of Uttar Pradesh, 1954) https://lawtimesjournal.in/dwarka-prasad-laxmi-narain-vs-state-of-uttar-pradesh-and-ors/
 (Air India Etc. Etc vs Nergesh Meerza & Ors. Etc., 1981) https://lawbhoomi.com/air-india-v-nargesh-meerza/#:~:text=The%20case%20of%20Air%20India,of%20the%20Constitution%20of%20India.
 (Miss Mohini Jain vs State Of Karnataka, 1992) https://legalvidhiya.com/mohini-jain-v-state-of-karnataka-1992-fundamental-right-to-equality-of-opportunity-under-article-14-of-indian-constitution/