Constitutionality of Delegated Legislation: Article 13, Fundamental Rights and Tests of Validity

Delegated legislation is subordinate to the parent Act, and the parent Act is subordinate to the Constitution. It follows that a rule must satisfy the Constitution twice over: once because the Act under which it is made must do so, and again on its own account, since a rule may offend the Constitution even where the Act is unimpeachable. The instrument of this control is Article 13, which makes the fundamental rights binding on 'law' and defines law to include rules, regulations, notifications, bye-laws and orders. This topic examines the constitutional tests applied to subordinate legislation: legislative competence, Article 14, the freedoms under Article 19, Article 21, and the special position of Article 31A and the Ninth Schedule.

1. Article 13 and the Definition of Law

Article 13, Constitution of India

(1) All laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3)(a) 'Law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

The inclusive definition in clause (3)(a) is the textual foundation of this topic. Because rules, regulations, bye-laws, notifications and orders are 'law' for the purposes of Part III, they are directly subject to the fundamental rights and are void to the extent of inconsistency. Two consequences follow. First, a person aggrieved by a rule may challenge it under Article 32 or Article 226 exactly as he might challenge a statute. Second, a rule may be struck down on constitutional grounds even though it is entirely within the parent Act, because conformity with the Act answers the question of vires and not the question of constitutionality.

2. The Tests of Constitutional Validity

Legislative competence. The rule must relate to a field within the legislative competence of the legislature that enacted the parent Act. A delegate can never have power wider than its principal, so a rule on a subject outside the relevant List is void whatever the enabling clause says.
Article 14. The rule must not classify without an intelligible differentia bearing a rational relation to the object, and must not be manifestly arbitrary. Arbitrariness in subordinate legislation is a distinct and much used ground.
Article 19. A rule restricting a freedom under Article 19(1) must be authorised by law and must impose a restriction that is reasonable and within the permitted grounds in clauses (2) to (6), tested in modern doctrine by proportionality.
Article 21. A rule affecting life or personal liberty must be backed by a valid law and must lay down a procedure that is fair, just and reasonable.
Article 265 and Article 300A. A rule cannot impose a tax without authority of law, nor deprive a person of property save by authority of law.
Other constitutional limits. Articles 301 to 304 on freedom of trade, Article 311 on the services, and the basic structure doctrine as it affects the parent Act, all apply.

3. Article 19 and Subordinate Legislation

📖 Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641

Facts: Customs duty was levied on imported newsprint by notifications under the Customs Act, 1962, and the concessional exemption previously available was withdrawn or curtailed. Newspaper publishers contended that the burden on newsprint, the principal raw material of the press, restricted the freedom of speech and expression under Article 19(1)(a) and that the notifications were bad.

Held: The Supreme Court held that although taxation of the press is not immune from review, a tax on newsprint operates directly on the circulation and content of newspapers and must be scrutinised with care, because the press occupies a special position under Article 19(1)(a). The Court also restated the law on challenges to subordinate legislation: such legislation may be questioned on the ground that it is contrary to the Constitution or to the parent statute or to any other statute, or that it is manifestly arbitrary or unreasonable, though it does not carry the immunity that primary legislation enjoys in some respects and equally is not open to challenge on grounds of mere unwisdom. On the facts the Court directed the Government to reconsider the levy.

Ratio: Subordinate legislation is fully subject to the Constitution, and where it affects a fundamental right the court examines both the authority for it and its reasonableness. The judgment is the standard modern statement of the grounds of challenge to delegated legislation.

4. Article 14 and Subordinate Legislation

Article 14 is the most frequently invoked constitutional ground, and it operates in two ways: through the classical doctrine of reasonable classification, and through the doctrine that arbitrary State action is a denial of equality.

📖 Air India v. Nergesh Meerza, (1981) 4 SCC 335

Facts: Regulations of Air India and Indian Airlines governing air hostesses provided that their service would terminate on marriage within four years of joining, on first pregnancy, or on attaining the age of thirty-five, extendable at the option of the Managing Director. Comparable male cabin crew were subject to different and more favourable conditions. The regulations were challenged under Articles 14 and 16.

Held: The Supreme Court upheld some of the conditions but struck down others. The rule terminating services on first pregnancy was held to be manifestly unreasonable and arbitrary and violative of Article 14: having permitted marriage after four years, the employer could not then terminate service on the pregnancy that would naturally follow, a condition the Court described as callous and offending against the ordinary decencies of family life. The provision leaving extension of the age of retirement to the unguided discretion of the Managing Director was also struck down as conferring uncanalised and arbitrary power.

Ratio: Regulations of a statutory corporation are subordinate legislation and are fully subject to Article 14. A condition that is manifestly unreasonable, or that confers unguided discretion on an officer, is arbitrary and void even where the power to make the regulation exists.

5. Points on Which Subordinate Legislation Differs from a Statute

Point	Statute	Subordinate legislation
Grounds of challenge	Legislative competence and violation of the Constitution	Those grounds, plus conflict with the parent or another Act, and procedural non-compliance
Arbitrariness	Manifest arbitrariness is a ground under Article 14 for legislation as well	Arbitrariness and unreasonableness are well-established and frequently applied grounds
Presumption	Strong presumption of constitutionality	Presumption of validity, but weaker, since the maker is not a representative body
Requirement of reasons	None	None; rule-making is legislative and no reasons are required
Effect of the parent law being void	Not applicable	The rule falls with the enabling provision if that provision is struck down
Protection of the Ninth Schedule	Available for statutes placed there, subject to the basic structure test after 24 April 1973	Not available to rules as such; the protection attaches to the Act

⚠ Vires and constitutionality are separate questions

A rule must pass two tests that are often confused. The vires test asks whether the rule is within the power conferred by the parent Act; a rule that travels beyond the Act fails it even though nothing in the Constitution is offended. The constitutionality test asks whether the rule conforms to the Constitution; a rule squarely within the Act fails it if it offends Article 14 or Article 19, as the regulation in Nergesh Meerza did. A complete challenge raises both, and they are answered on different materials: the first on a comparison of the rule with the Act, the second on a comparison of the rule with the Constitution.

6. The Position in Summary

Article 13(3)(a) includes rules, regulations, bye-laws, notifications and orders within 'law', so that subordinate legislation is directly subject to the fundamental rights and void to the extent of inconsistency.
A rule must satisfy legislative competence, Article 14, the reasonableness of restrictions under Article 19, fair procedure under Article 21, and the requirements of Articles 265 and 300A where a levy or property is affected.
Subordinate legislation may be challenged as contrary to the Constitution, to the parent statute or to another statute, or as manifestly arbitrary or unreasonable (Indian Express Newspapers).
Regulations of statutory corporations are subordinate legislation and are fully subject to Article 14; conditions that are manifestly unreasonable or that confer unguided discretion are void (Nergesh Meerza).
Conformity with the parent Act does not answer the constitutional question, and conformity with the Constitution does not answer the question of vires; both must be satisfied.

7. Related Topics and Provisions

Judicial Control over Delegated Legislation (Topic 44): the grounds of challenge as a whole.
Substantive and Procedural Ultra Vires (Topic 46): the non-constitutional branch of review.
Doctrine of Excessive Delegation (Topic 27): the constitutional challenge to the enabling provision.
Delegation of Taxing Power (Topic 34): Article 265 as a constitutional limit on fiscal rules.
Constitutional Foundations of Administrative Law (Topic 7): Articles 13, 14, 19 and 21 in the wider scheme.
Constitution of India: Articles 13, 14, 19, 21, 32, 226, 245, 246, 265, 300A and 301 to 304.