INTRODUCTION
Delegated legislation, which is frequently termed or referred to as Subordinate legislation/Administrative legislation. In India, all forms of legislative activities are recognised by law; other than the power of parliament, they are subordinate legislation. All Subordinate legislations are subjected to parliamentary control. An example of delegated or subordinate law is an instrument of a legislative kind created by an authority in the exercise of their powers given or delegated by the legislature (Parliament). These are referred to by other names, including rules, regulations, bye-laws, orders, notices, etc. This delegated legislation system is similar in the situation of England and in other countries with parliamentary systems. All subordinate legislation is of a derivative nature. Any law made by a subordinate authority for which there is no authority will be void if being Ultra vires. Salmond defines delegated as ‘that which proceeds from any authority other than sovereign power and therefore dependent for its continuous existence and validity on some superior or supreme authority.’
Example of Delegated Legislation: The Essential Commodities Act 1955 empowers the central government under section 3 of the act to make an order to regulate or prohibit production, supply and distribution of essential commodities, and under section 2A (2), the central government can, by notification in the official gazette, amend the schedule where essential commodities are mentioned
Ultra vires: Ultra Vires is a Latin phrase used where ultra means ‘beyond’ and ‘vires’ means ‘power’. In relation to delegated legislation, this term is used to describe any act, rule, or regulation enacted by an administrative agency going beyond or contrary to the extent or limitations laid out by the legislature (Parent Act) or the Constitution. Speaking of the subordinance principle, it may be said that the subordinate body does not have legislative power on its own; it only has the power that it receives or obtains from the superior body. The power that had been loaned to it. Courts invoke this doctrine to invalidate a rule when it is arbitrary, outside the authority’s jurisdiction, or in contradiction to the enabling law. Legal Maxim “Delegatus non potest delegare”, A person to whom a duty is delegated cannot delegate it unless specifically authorised to do so. This is one of several grounds on which an ultra vires case can be contested.
This ultra vires is of two types:
- Substantive ultra vires
- Procedural ultra vires
Substantive ultra vires: Delegated lactation is beyond the scope of authority, the authority which is conferred upon it by the parent Act or by the Constitution, or it conflicts with the parent Act. The following circumstances render delegated legislation invalid on the grounds of substantive ultra vires:
Consequences of Unconstitutionality of the Enabling Act: If the Parent Act conferring power upon the executive is illegal (e.g., it could be unconstitutional or otherwise ultra vires the Constitution), then any delegated legislation will also be unable to stand. In Hamdard Dawakhana v Union of India, the validity of Section 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Act was examined by the Supreme Court. The Court ruled that this section of the Act gave to an Executive Authority a completely unrestricted and unregulated power to name which diseases could or cannot be advertised; thus, there was no legislative criteria or standards established to determine what could or could not be named. Since the Parent Act provided no discernible policy or guiding principle, it fell afoul of the Constitution of India 1950, Article 14, as an unconstitutional delegation of power. As a corollary, the delegated legislation, the rules made under such an invalid section, was also struck down.
When delegated legislation itself is unconstitutional/ultra vires? If the parent statutes are found to be within the scope of the constitution, this does not mean that all the subordinate legislation issued under this power must also comply with the test for compliance with the constitution. Even if a subordinate rule appears to be issued pursuant to valid legislation, if that subordinate rule is found to violate any provision of the constitution (especially one dealing with Fundamental Rights), it will be nullified by the court on the grounds of substantive ultra vires. In Dwarka Prasad Laxmi Narain v The State of Uttar Pradesh, a provision under the Coal Control Order was struck down by the Supreme Court as it provided absolute, unchecked, and discretionary power to the Licensing Authority for granting, withholding, or Cancelling licenses. Although the parent act, i.e., Essential Supplies Act 1946, was constitutional, the delegated act was violative of the Constitution of India 1950, art 19(1)(g), as it provided an unreasonable restriction on the freedom of trade, which was devoid of any standard for the executive authority.
The Doctrine of Statutory Repugnancy and Overreach: When delegations of authority regarding laws conflict with the original laws or statutes under which they originated, the delegation of authority regarding laws must follow the requirements and provisions of the original law or statute creating them. It can be challenged on the ground that it is Ultra vires to the parent act. In the case of Himat Lal K. Shah v Commissioner of Police, Section 33 (1)(o) of the Bombay police Act 1951 gave power to the commissioner of police to frame rules for the regulation of conduct and misbehaviour of assemblies and processions by prescribing the routes and time of processions. A particular rule provides that no public meetings will take place unless the police commissioner grants prior approval.
When does the delegated legislation seem to be repugnant to the general law? Delegated legislation can be declared invalid due to the reason of being against the law of the land, even if it is still compliant with its parent act. In Hindustan Times v State of UP, the Supreme Court decided in the year 2002 that an executive order or rule cannot be obeyed when it comes to any law enacted by the legislature. The Supreme Court decided that the State of UP could not, through an executive decree, regulate rules that were not consistent with the Working Journalists Act or the Code of Civil Procedures. The supremacy of delegative legislation is directed to follow the general law of the land, even when such legislation is found to be valid within the Parent Act.
Judicial Review of Unreasonable and Arbitrary Delegated Legislation: Delegated legislation can be struck down if it is irrational/capricious. It is submitted that even if the Parent Act is valid and the procedure is followed, a rule can be set aside by this Court for violation of Article 14 if it is shown to be ‘manifestly arbitrary’ or to ‘shock the conscience’ of this Court.” In Air India v Nergesh Meerza, the Supreme Court struck down Air India’s service regulations, which provided that female cabin crew would be terminated upon their first pregnancy. The Court held that this rule was deeply insulting, arbitrary, and unreasonable, deviating from the right to equality mentioned in Article 14, as it had no rational nexus with the nature of the job.
Invalidation for Mala Fide Exercise of Delegated Power: Delegated legislation remains subject to judicial scrutiny if the underlying authority acted with malice. In D.C. Wadhwa v State of Bihar, the Supreme Court had invalidated the practice of the Bihar government of issuing successive ordinances without ever laying them before the State Legislature. The Court held that this was a colourable exercise of power and a fraud on the Constitution since the executive, to circumvent the legislative process, was continuing to rule by ordinance, which is mala fide.
Prospective vs. Retrospective Operation of Rules: If there is not an obvious provision in the parent act to allow for the application of the delegated legislation before the time of the enactment of that delegated legislation, then the delegated legislation does not apply retrospectively. Therefore, any administrative provision that attempts to regulate a past transaction without appropriate legislative authority will be declared invalid. Moreover, in Gurcharan Singh v. State of Haryana, the Supreme Court clarified its earlier ruling about the Sovereign Legislature’s power of legislating retrospectively, but held that no subordinate Government body had the same authority unless provided within the Parent Act. The order was quashed as the executive had gone beyond its lawful powers of jurisdiction when it attempted to make the rule retrospective.
Jurisdictional Constraints and Judicial Self-Restraint: Judicial review is not permitted for delegated legislation by the legislative authority specifying additional words, such as a rule/order passed, which gives delegated acts or rules the same effect as if they were passed under the statute.
Constitutional and Statutory Mandates for Procedural ultra vires: Legislation by a parent act also has procedures that must be adhered to for subordinate legislation, which must have: 1) Consultation, 2) Publication, and 3) Laying Before Parliament. If subordinate legislation is created and the procedures set out in the parent Act are not complied with, the sub-delegated subordinate legislation may be declared by the Judiciary to be Procedurally Ultra Vires. The Court must first determine whether the parent statute’s procedural requirements are mandatory or directory before deciding on the Procedural Ultra Vires issue. Parent statutes that contain prescriptive verbiage in their procedural requirement sections can use either “must” or “may” to establish whether the suggested procedure is Mandatory (must) versus Directory (may). Generally, the determination of mandatory versus directory is dependent upon the particular statute at issue and the facts of each individual case.
CONCLUSION
The doctrine of Ultra Vires acts as the necessary constitutional safety valve in a parliamentary democracy. Insofar as the intricateness of modern governance requires the granting of legislative powers to the executive, so the danger of administrative despotism arises. The courts ensure, through the twin prisms of Substantive and Procedural Ultra Vires, that the subordinate authorities do not convert a loaned power into an absolute one. The courts are responsible for enforcing the Rule of Law and upholding the supremacy of the Constitution by striking down laws that are arbitrary, enacted in bad faith, or that exceed their enabling statute. Legislation can provide the outline of a law, and then those who are authorised to create regulations can provide that regulation, which forms the shape of the law. The courts can then ensure that this formed law does not go beyond its authority.
Authors: Chelluboyina Revanth Roy & Pallavi Anurag (ICFAI University, Dehradun)
References:
- PJ Fitzgerald, Salmond on Jurisprudence (12th edn, Sweet & Maxwell 1966).
- The Essential Commodities Act 1955
- CK Takwani, Lectures on Administrative Law (7th edn, Eastern Book Company 2021)
- Hamdard Dawakhana v Union of India, AIR 1960 SC 554
- The Constitution of India, art14
- Dwarka Prasad Laxmi Narain v State of Uttar Pradesh, AIR 1954 SC 224
- The Constitution of India, art19
- Himat Lal K. Shah v Commissioner of Police, AIR 1973 SC 87
- Bombay Police Act 1951, s 33(1)(o)
- Hindustan Times v State of UP AIR 2003 SC 250
- Air India v Nergesh Meerza AIR 1981 SC 1829
- DC Wadhwa v State of Bihar AIR 1987 SC 579
- Gurcharan Singh v State of Haryana AIR 1974 SC 2235
