This article is written by Elham Mohammed Elamin of 6th Semester of Faculty of law, University of Khartoum, an intern under Legal Vidhiya
Delegated legislation, also known as secondary or subordinate legislation, plays a vital role in modern governance, allowing the executive to create detailed rules and regulations. In the Indian context, the delegation of legislative power is governed by Articles 245, 246, and 250 of the Constitution. Delegated legislation, while efficient, requires proper control to ensure compliance with the Constitution and principles of legality. Judicial control of delegated legislation is a critical component of this oversight, empowering courts to review and assess its legality and constitutionality. This article delves into the doctrine of ultra vires, a central aspect of judicial control, which involves substantive and procedural ultra vires grounds. Substantive ultra vires focuses on the authority and content of delegated legislation, while procedural ultra vires concerns the process of creating such legislation. It explores landmark cases, demonstrating how the judiciary ensures that delegated legislation remains within the bounds of legality, fairness, and constitutionality.
Keywords: Delegated legislation, judicial control, ultra vires, substantive ultra vires, procedural ultra vires, Indian Constitution, doctrine of ultra vires, landmark cases, legality, fairness, constitutionality, governance, rule of law.
What is delegated legislation?
Delegated legislation also known as secondary or subordinate legislation, is law made by some person or body other than the parliament, but with the authority of Parliament. That authority is usually laid down in a ‘parent’ Act of Parliament known as an enabling Act which creates the framework of the law and then delegates power to others to make more detailed law in the area. In other words Delegated legislation is the law made by the executive branch of government under the authority of a statute passed by the legislature.
Delegated legislation is necessary in modern governance because it allows the executive to make detailed and technical rules and regulations that would be too time-consuming or impractical for the legislature to enact.
In Indian Constitution the delegation of legislative power is primarily governed by Articles 245, 246, and 250.
Article 245 empowers the State Legislatures to make laws for the whole or any part of the State with respect to any matter in the State List.
Article 246 empowers the Parliament to make laws for the whole or any part of the territory of India with respect to any matter in the Union List or the Concurrent List.
Article 250 empowers the Parliament to make laws for the whole or any part of the territory of India with respect to any matter not enumerated in the Union List or the State List.
Delegated legislation plays an important role in the Indian legal system. It allows the government to make law in a flexible and efficient manner. However, it is important to ensure that delegated legislation is used within the limits of the Constitution. It is crucial to have proper control over delegated legislation, as it is often created by non-elected bodies with the authority to do so.
Control of delegated legislation in India involves mechanisms to oversee and regulate the exercise of legislative powers delegated to administrative authorities and government bodies. This control is essential for ensuring that delegated legislation complies with the Constitution and the principles of legality. The key aspects of control include judicial review, parliamentary oversight, and adherence to constitutional principles, all of which collectively maintain the balance between flexibility in rule-making and accountability to protect the rights and interests of citizens. In this article we will focus on judicial control of delegated legislation and the different grounds on which the judiciary can review delegated legislation.
Types of control on delegated legislation:
To control delegated legislation, India has a number of mechanisms in place. These include:
- Legislative control: Parliament and state legislatures have a number of mechanisms for scrutinizing and controlling delegated legislation. For example, the Standing Committee on Subordinate Legislation in each house of Parliament examines all subordinate legislation before it comes into force. The committee can also recommend that Parliament disallow subordinate legislation, which would prevent it from being implemented.
- Executive control: The President and state governors have the power to lay subordinate legislation before them before it comes into force. This gives them an opportunity to review the subordinate legislation and to disallow it if necessary. The executive also has the power to amend or repeal subordinate legislation that it has made itself or that has been made by subordinate authorities.
- Judicial control: The courts have the power to review delegated legislation and to declare it invalid if it is found to be unconstitutional or beyond the scope of the enabling statute.
Judicial Control of Delegated Legislation:
Judicial control of delegated legislation in India is a vital aspect of ensuring that administrative authorities and government bodies do not overstep their legal boundaries when creating rules, regulations, or bylaws.
The Indian Constitution empowers the judiciary, including the Supreme Court and High Courts, to exercise judicial review. This means that the courts have the authority to review and assess the legality and constitutionality of laws, including delegated legislation.
The court of law in India has the power to question the validity of delegated legislation if it is deemed unconstitutional, excessive, or arbitrary. It can be controlled by the judiciary on tow grounds, firstly, it should be on the ground of substantial ultra vires and secondly, it should be on the ground of procedural ultra vires.
The doctrine of ultra-vires:
Ultra vires is a legal term that refers to an action taken without the necessary legal authority. In the context of delegated legislation, it means that a law or regulation made by a government body is invalid if it goes beyond the powers that have been delegated to that body.
The opposite of ultra vires is intra vires, which means that an action is taken within the scope of the relevant legal authority.
The ultra vires doctrine is one of the main grounds on which parties can challenge delegated legislation in judicial review proceedings. If a court finds that delegated legislation is ultra vires, it will quash it (declare it invalid).
In simpler terms, ultra vires means “beyond the powers”. So, if a government body does something that is ultra vires, it is doing something that it is not legally allowed to do.
The doctrine has two types:
A. Substantive ultra-vires,
B. Procedural ultra-vires.
A. Substantive ultra-vires:
Substantive ultra vires refers to a situation where the delegated legislation lacks the substantive authority provided by the enabling Act to create the specific rules in question. In simpler terms, it implies that the delegate does not possess the authority to formulate a rule that is sanctioned by the parent statute. Consequently, delegated legislation can be declared invalid based on the grounds of substantive ultra vires. The instances leading to substantive ultra vires may include the following circumstances:
1. Inconsistency with Constitutional Scheme: If the delegated legislation violates the basic structure of the Indian Constitution or is inconsistent with the constitutional scheme, it is regarded as substantively ultra vires. In Keshavananda Bharati v. State of Kerala, the Supreme Court of India examined whether an amendment to the Indian Constitution was inconsistent with its basic structure. The court held that while the Parliament had the authority to amend the Constitution, it couldn’t alter its basic structure, emphasizing the importance of consistency with the constitutional scheme.
2. Unreasonable and Arbitrary: If the content of delegated legislation is found to be unreasonable, arbitrary, or lacking a rational nexus with its intended objectives, it is considered substantively ultra-vires. In Maneka Gandhi v. Union of India, the Supreme Court of India held that the term “procedure established by law” in Article 21 of the Constitution should be just, fair, and reasonable, rather than arbitrary. This case exemplifies the judicial control of delegated legislation to ensure that it is not arbitrary but adheres to principles of reasonableness.
And also if it is found that the administrative authority acted with malafide intent or had an ulterior motive, the delegated legislation may be declared ultra vires and struck down. In Ram Dial v. State of Punjab, The case involved a challenge to the cancellation of a transport permit on the ground that the authority had acted with a malafide intent and for an ulterior motive. The court held that delegated legislation must be free from malafide intent and should be made in good faith.
3. Violation of Fundamental Rights: Substantive ultra vires may occur when the delegated legislation infringes upon or is inconsistent with the fundamental rights guaranteed by the Indian Constitution. This constitutes a substantive violation of constitutional rights.
4. Discrimination: When the rules or regulations created through delegated legislation discriminate against a particular group or class of people, they are deemed substantively ultra vires. In State of West Bengal v. Anwar Ali Sarkar, This case addressed the issue of discriminatory application of laws. The court held that laws must not be discriminatory and should treat individuals equally. It highlighted the importance of delegated legislation being free from discriminatory provisions.
5. Conflict with Parent Act: If the delegated legislation’s provisions are inconsistent with or directly conflict with the provisions and objectives of the parent act, it is considered substantively ultra vires. State of Jammu and Kashmir v. Triloki Nath Khosa, In this case, the court examined whether rules framed under the parent act (Jammu and Kashmir Public Safety Act) were in conflict with the parent act itself. The court emphasized that delegated legislation should not be in conflict with the enabling legislation.
B. Procedural ultra-vires:
Procedural ultra vires relates to the process of making delegated legislation. It occurs when delegated legislation is made without following proper procedures, such as failing to consult stakeholders, affected parties, or without adhering to principles of natural justice.
1. Failure to Consult: Procedural ultra vires can result from the failure of the administrative authority to consult relevant stakeholders or affected parties during the rule-making process. In State of Orissa v. M.A. Tullock & Co., The Supreme Court of India held that the rules were invalid because there was a failure to consult the forest contractors, and the rules were made in violation of the principles of natural justice.
2. Lack of Clarity and Ambiguity: When the process of making delegated legislation lacks clarity, transparency, or results in ambiguity, it can be considered procedurally ultra vires. In Jindal Stainless Ltd. v. State of Haryana & Others, The Punjab and Haryana High Court ruled in favor of the petitioner, stating that the rules were vague and ambiguous, making them ultra vires the parent act. The court emphasized the importance of clear and unambiguous rules.
3. Non-Conformity with Statutory Provisions: Procedural ultra vires can occur when the process of making delegated legislation fails to conform to statutory provisions or legal requirements. In Dwarka Prasad Agarwal v. Ramesh Chandra Agarwal & Ors, The Supreme Court held that the rules were ultra vires the parent act as they contravened the statutory provisions of the Rent Control Act. The rules went beyond the powers delegated by the parent act.
4. Lack of Transparency: If the process of making delegated legislation lacks transparency and does not involve the publication or accessibility of the rules or regulations to the public, it can be challenged as procedurally ultra vires. In Parle Exports (P) Ltd. v. Union of India, The Supreme Court ruled in favor of the petitioner, stating that the lack of publication and transparency rendered the rules ineffective. The court emphasized that delegated legislation should be accessible to the public to ensure fairness and transparency.
Judicial control of delegated legislation in India is a crucial element in upholding the principles of legality, fairness, and constitutional conformity. Delegated legislation serves as an efficient tool for modern governance, allowing administrative bodies to create detailed rules and regulations. However, it is essential to maintain checks and balances to prevent potential abuses of power.
The doctrine of ultra vires, encompassing substantive and procedural grounds, offers a robust framework for challenging delegated legislation that exceeds its authority or lacks procedural fairness. Courts in India have consistently demonstrated their commitment to ensuring that delegated legislation aligns with the constitutional scheme, respects fundamental rights, and adheres to principles of reasonableness.
By providing a mechanism for individuals and entities to challenge delegated legislation, the judiciary plays a critical role in preserving the rule of law and protecting the rights and interests of citizens. This judicial control mechanism reflects the commitment of the Indian legal system to balance flexibility in rule-making with accountability and transparency.
In summary, judicial control of delegated legislation in India is a fundamental aspect of the legal framework, ensuring that the exercise of legislative powers by administrative authorities remains within the bounds set by the Constitution and the law. It exemplifies the commitment to uphold the principles of justice and legality in the governance of the nation.
- Martin, J., The English legal system (4th ed),(2005).
- Talawa, Naveen. “Judicial Control over Delegated Legislation.” Legal Vidhiya. November 26, 2021. Web. Accessed October 20, 2023.
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
- Maneka Gandhi v. Union of India, (1978) 1 SCR 621.
- Ram Dial v. State of Punjab, AIR 1982 SC 1473.
- State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
- State of Jammu & Kashmir v. Triloki Nath Khosa &. Ors., I SCR 771.
- Orissa v. M.A. Tulloch & Co., AIR 1964 SC 1284. 29.
- Jindal Stainless Ltd. & Anr. v. State of Haryana & Ors., 2016 Ind. Kanoon SC 1191 (Nov. 11, 2016).
- Dwarka Prasad Agarwal v. Ramesh Chandra Agarwal. (2003) 117 Com cases 206 (Sc): (2003) 4 Comp LJ 385.
- Dwarka Prasad Agarwal v. Ramesh Chandra Agarwal & Ors., AIR 2005 SC 3406.
Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.