Administrative Law
Judicial Control over Delegated Legislation: Grounds of Challenge, Scope of Review and Landmark Cases
Judicial control is the effective control over delegated legislation in India. Legislative control operates through laying and committees but carries no legal sanction in the ordinary case; procedural control invalidates a rule only where a prescribed step was mandatory. It is the courts that decide whether a rule made by the executive is law at all. They do so on a settled set of grounds: whether the enabling provision itself was a valid delegation, whether the rule stays within that provision and within the Constitution, whether it was made by the right authority and by the prescribed procedure, and whether it is so unreasonable or arbitrary that it cannot stand. This topic sets out those grounds, the scope and limits of review, and the leading decisions.
1. The Two Levels of Challenge
A challenge to delegated legislation operates at two distinct levels, and they must be kept apart because they attack different instruments and have different consequences.
- The enabling provision. The complaint is that the legislature delegated too much, or without policy or guidance, so that the conferment itself is unconstitutional. Success invalidates the parent provision and, with it, every rule made under it. This is the doctrine of excessive delegation, drawn from In re Delhi Laws Act, 1912, AIR 1951 SC 332 and applied in Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
- The rule made under it. The complaint is that the delegate exceeded or misused a power validly conferred. Success invalidates the rule alone, and the power survives to be exercised properly. This is the ordinary jurisdiction of ultra vires, and it is the ground on which most challenges are fought.
Where both are raised, the questions are decided in that order, because the second does not arise if the first succeeds.
2. The Grounds of Challenge
The grounds on which subordinate legislation may be challenged have been settled by a consistent line of decisions and may be stated as follows.
Ground | What must be shown |
|---|---|
Excessive delegation | The enabling provision confers power without laying down policy or guidance, or amounts to abdication |
Beyond the parent Act | The rule deals with a matter the rule-making power does not cover, or travels beyond its scope |
Conflict with the parent Act | The rule is inconsistent with a provision of the Act under which it is made, or defeats its scheme |
Conflict with another statute | The rule contravenes a different Act that governs the field |
Unconstitutional | The rule offends the fundamental rights, legislative competence or any other constitutional provision |
Manifest arbitrariness or unreasonableness | The rule is arbitrary, irrational or, in the case of bye-laws, manifestly unreasonable |
Made by the wrong authority | The power was exercised by someone other than its repository, or was unlawfully sub-delegated |
Procedural non-compliance | A mandatory step such as consultation, previous publication or publication was omitted |
Bad faith or improper purpose | The power was used for a purpose other than that for which it was conferred |
Unauthorised retrospective effect | The rule operates for the past without authority in the parent Act |
📖 Kunj Behari Lal Butail v. State of Himachal Pradesh, (2000) 3 SCC 40 Facts: The Himachal Pradesh Ceiling on Land Holdings Act, 1972 exempted tea estates from the ceiling. Rule 3 of the rules framed under the Act, made in exercise of the general power to make rules for carrying out the purposes of the Act, imposed restrictions on the use and transfer of land comprised in such tea estates, a matter on which the Act itself was silent. Held: The Supreme Court struck down the rule. A general power to make rules to carry out the purposes of an Act does not enable the rule-making authority to make a rule on a subject the Act has not dealt with, or to travel beyond the scope of the Act. Delegated legislation must be consistent with the parent Act and cannot supplant it or deal with matters outside the field the legislature has occupied. The restrictions imposed by the rule had no foundation in the Act and were therefore beyond the power. Ratio: The commonest and most practical ground of review. A rule made under a general enabling clause must be traceable to the Act, must serve its purposes and cannot add to the substantive scheme the legislature enacted. |
3. Unreasonableness as a Ground
How far a court may strike down a rule simply because it thinks it unreasonable has been carefully limited. Three positions have been taken and all three remain part of the law.
- Bye-laws of local bodies have long been open to review for manifest unreasonableness, on the standard associated with Kruse v. Johnson, [1898] 2 QB 91, because such bodies exercise limited local powers.
- Rules and regulations made by government are not struck down merely because the court considers a different rule preferable; the court does not sit in appeal on the wisdom or the policy of subordinate legislation.
- Manifest arbitrariness is nonetheless a ground. A rule that is arbitrary, irrational or capricious, that has no rational basis, or that treats unequals alike without justification, offends Article 14 and falls, whether the objection is framed as unreasonableness or as arbitrariness.
The position was applied to an expert regulator's regulations in Cellular Operators Association of India v. Telecom Regulatory Authority of India, (2016) 7 SCC 703, where the Supreme Court struck down a regulation compelling compensation for dropped calls as manifestly arbitrary and unreasonable, holding that regulations made under a statutory power are subordinate legislation and remain open to review even though the maker is an expert body.
4. The Scope and Limits of Review
- Presumption of validity. Subordinate legislation is presumed valid, and the burden lies on the person challenging it to establish the ground relied on.
- No review on merits or policy. The court examines the legality of the rule, not its wisdom, expediency or adequacy; a rule is not bad because a better one could have been framed.
- No requirement of reasons. Since rule-making is legislative, the maker need not give reasons for the rule, and the absence of reasons is not a ground of invalidity.
- No hearing required. Natural justice does not apply to legislative action (Union of India v. Cynamide India Ltd., (1987) 2 SCC 720); participation comes only from statutory consultation or previous publication.
- Severability. Where only part of a rule is bad, the court strikes down that part if it is separable from the rest, leaving the remainder in force; the same applies to unauthorised retrospective operation, where the retrospectivity alone is struck down.
- Effect of invalidity. A rule held ultra vires is void, and, being void, is treated as never having been validly made, subject to the protection of concluded transactions where the court moulds relief.
⚠ The forum and the instruments Judicial control over delegated legislation is exercised by the High Courts under Article 226 and by the Supreme Court under Article 32 where fundamental rights are involved, and the ordinary civil courts may also decide the validity of a rule where it arises incidentally in a suit. The relief is usually a declaration that the rule is ultra vires and void, coupled with a writ restraining its enforcement; certiorari, which quashes a decision, is not the appropriate remedy against a rule, because a rule is legislation and not an adjudication. |
5. The Position in Summary
- Judicial control is the effective control over delegated legislation, because it alone carries the sanction of invalidity in the ordinary case.
- A challenge lies at two levels: against the enabling provision for excessive delegation, and against the rule for ultra vires; success at the first invalidates everything made under the power, success at the second invalidates only the rule.
- The settled grounds are excessive delegation, travelling beyond or conflicting with the parent Act or another statute, unconstitutionality, manifest arbitrariness, exercise by the wrong authority or unlawful sub-delegation, procedural non-compliance, bad faith and unauthorised retrospectivity.
- A general power to make rules to carry out the purposes of an Act does not permit rules on matters the Act has not dealt with (Kunj Behari Lal Butail).
- Review is confined to legality: the rule is presumed valid, no reasons or hearing are required, the court does not sit in appeal on policy, and a bad part may be severed from the rest.
6. Related Topics and Provisions
- Constitutionality of Delegated Legislation (Topic 45): review against the Constitution in detail.
- Substantive and Procedural Ultra Vires (Topic 46): the two branches of the ultra vires jurisdiction.
- Doctrine of Excessive Delegation (Topic 27): the challenge to the enabling provision.
- Legislative Control (Topic 42) and Procedural Control (Topic 43): the other two controls and their limits.
- Important Cases on Delegated Legislation (Topic 48): the consolidated case law.
- Constitution of India: Articles 13, 14, 19, 32, 226, 245 and 246.