Jurisprudence
Supreme versus Subordinate Legislation
At a Glance ▪ Salmond: supreme legislation proceeds from the sovereign power in the State and cannot be repealed, annulled or controlled by any other legislative authority; subordinate legislation proceeds from any other authority and depends for its existence and validity on a superior authority. ▪ Salmond's five kinds of subordinate legislation: colonial, executive, judicial, municipal and autonomous. Delegated legislation by the executive under a parent Act is by far the largest today. ▪ In India no legislature is supreme in Dicey's sense: Acts are subject to the Constitution and judicial review. Yet within its field an Act of Parliament or a State legislature is plenary, and supreme relative to the rules made under it. ▪ Limits on delegation: the legislature may not delegate its essential legislative function (In re Delhi Laws Act, 1951). Controls are legislative (laying, committees), procedural (publication, consultation) and judicial. ▪ Subordinate legislation may be struck down on every ground available against a statute and for being ultra vires the parent Act, contrary to any other statute, or manifestly arbitrary (Indian Express Newspapers, 1985; State of TN v P. Krishnamurthy, 2006). |
Think of a large company. The board of directors lays down policy: which markets to enter, how much to spend, what the company will never do. Branch managers then issue detailed circulars on shift timings, forms and local procedures. A circular is valid only within the authority the board gave; if it contradicts board policy, it falls. The board's resolutions are supreme legislation within the company; the circulars are subordinate legislation. But the board itself is bound by the company's constitution and by the law of the land, just as an Indian legislature is bound by the Constitution. Note 23 introduces both kinds; this note compares them in detail.
1. Salmond's Distinction
Salmond classified legislation by the authority from which it proceeds. Supreme legislation is that which proceeds from the sovereign power in the State, and which therefore cannot be repealed, annulled or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power, and which is therefore dependent for its continued existence and validity on some superior or supreme authority. The test is not importance: the Central Motor Vehicles Rules, 1989, made under the Motor Vehicles Act, 1988, affect more people daily than many Acts. The test is dependence.
Three consequences follow from dependence. Subordinate legislation may be repealed or overridden by the superior authority at any time. It must stay within the limits of the power conferred, and a court will declare void what exceeds them (the doctrine of ultra vires). And a delegate cannot, without authority, pass the power on: delegatus non potest delegare. Supreme legislation, in Salmond's model, suffers none of these limits.
Classic Definitions ▪ Salmond (Jurisprudence): supreme legislation is that which proceeds from the supreme or sovereign power in the State, and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority (paraphrase). ▪ Salmond (Jurisprudence): subordinate legislation is that which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme authority (paraphrase). ▪ Dicey (Law of the Constitution, 1885): Parliament has the right to make or unmake any law whatever, and no person or body is recognised by the law of England as having a right to override or set aside its legislation (paraphrase). |
2. The Kinds of Subordinate Legislation
Salmond's five kinds are explained in Note 23 and are only recalled here. Colonial legislation was made by the legislature of a colony subordinate to the imperial Parliament. Executive legislation consists of rules, regulations, orders and notifications made by the government under a parent Act. Judicial legislation in this sense means rules of court, such as those made by the Supreme Court under Art. 145, not judge-made law. Municipal legislation means the bye-laws of municipalities, panchayats and other local bodies. Autonomous legislation means the rules of bodies such as universities, companies and registered societies for their own affairs.
The Privy Council in The Queen v Burah (1878) held that the Indian legislature, though created by and subordinate to the imperial Parliament, was not a mere agent or delegate: within the limits of its powers it had plenary authority of the same nature as Parliament itself. A body may thus be subordinate in the chain of authority yet plenary within its field: the key to the Indian position.
3. Is Indian Legislation Supreme?
In Salmond's strict sense, no Indian legislature makes supreme legislation. Parliament and the State legislatures take their powers from the Constitution, which divides them (Arts. 245 and 246, Seventh Schedule), subjects them to fundamental rights (Art. 13(2)), and protects its basic structure even against constitutional amendment (Kesavananda Bharati, 1973). Courts routinely strike down Acts of Parliament. The contrast with Westminster is the theme of Note 95.
Yet the classification still does useful work in India, in a relative sense. Within its constitutional field, an Act of a competent legislature is plenary: no executive rule, bye-law or order can override it, and it can be challenged only on constitutional grounds, namely want of legislative competence or violation of fundamental rights or other constitutional provisions. The courts do not inquire into the motives of a legislature; the doctrine of colourable legislation is a question of competence, not of good faith (K.C. Gajapati Narayan Deo v State of Orissa, 1953). Rules made under the Act, by contrast, remain subordinate: they must conform to the Act, and they fall if they go beyond it. Ordinances under Arts. 123 and 213 are a special case: though made by the executive, they are an exercise of legislative power with the same force and effect as an Act, not delegated legislation, and they too are subject to judicial review (Krishna Kumar Singh v State of Bihar, Supreme Court, 2017, 7 judges, holding repeated re-promulgation a fraud on the Constitution).
4. Limits on Delegation
Delegation is unavoidable in a modern State (Note 23). The Constitution contains no express bar on it, but a legislature cannot abdicate its function.
In re Delhi Laws Act Supreme Court of India, 1951 (7 judges) On a Presidential reference, the Court held that a legislature may delegate subsidiary and ancillary powers but may not delegate its essential legislative function: determining legislative policy and enacting it as a binding rule of conduct. A power to extend laws to a territory with restrictions and modifications was upheld, but not a power to repeal or alter the essential features of existing law. |
The test therefore looks at the parent Act: it must declare the policy and lay down standards or guidelines for the delegate. Where it hands the executive an uncanalised power, the parent provision itself falls for excessive delegation, as in Hamdard Dawakhana (1960; Note 23). Here the challenge is to supreme legislation, but on the ground that it has failed to legislate at all.
5. Control of Subordinate Legislation
Three kinds of control ▪ Legislative control. Rules are laid before the House, by simple laying or subject to an affirmative or negative resolution, and scrutinised by the Committees on Subordinate Legislation of each House, which report whether rules exceed the power delegated. ▪ Procedural control. Prior publication of draft rules for objections where the parent Act requires it (Section 23, General Clauses Act, 1897), consultation of affected interests, and official publication before the rules take effect (Harla v State of Rajasthan, 1951: an unpublished law does not bind). ▪ Judicial control. Courts review the validity of the rule itself, on grounds wider than those open against a statute (Section 6). |
One limit on judicial control should be noted. Subordinate legislation is legislative in character, so the rules of natural justice do not ordinarily require the rule-maker to give a hearing to those affected, unless the parent Act requires it: Union of India v Cynamide India Ltd (Supreme Court, 1987), a case on price fixation under a drug price control order.
6. Grounds of Challenge
Indian Express Newspapers (Bombay) v Union of India Supreme Court of India, 1985 Examining customs notifications on newsprint, the Court held that subordinate legislation does not carry the same degree of immunity as a statute passed by a competent legislature. It may be questioned on any ground on which plenary legislation may be questioned, and also on the grounds that it does not conform to the statute under which it is made, that it is contrary to some other statute, or that it is unreasonable, meaning not merely unreasonable but manifestly arbitrary. |
State of Tamil Nadu v P. Krishnamurthy Supreme Court of India, 2006 The Court restated the law. Subordinate legislation carries a presumption of validity, and the burden lies on the challenger. It may be challenged for (a) lack of legislative competence to make it; (b) violation of fundamental rights; (c) violation of any other provision of the Constitution; (d) failure to conform to the parent Act or exceeding the authority it confers; (e) repugnancy to the laws of the land, that is, any enactment; and (f) manifest arbitrariness or unreasonableness, to an extent where the court may well say that the legislature never intended to give authority to make such a rule. A court judging validity must look at the object of the parent Act and the area over which power is delegated. |
English law reached a similar idea for bye-laws in Kruse v Johnson (Divisional Court, 1898), where Lord Russell CJ said that bye-laws may be held unreasonable and void if they are partial and unequal between classes, manifestly unjust, made in bad faith, or involve such oppressive or gratuitous interference with rights that no reasonable person could justify them. The gap between the two kinds of legislation has narrowed since Shayara Bano (2017), which accepted manifest arbitrariness as a ground for striking down plenary legislation too. The grounds of ultra vires the parent Act and repugnancy to any statute remain peculiar to subordinate legislation, because only it depends on another law for its validity.
Basis | Supreme legislation | Subordinate legislation |
|---|---|---|
Source (Salmond) | The sovereign power in the State | Any authority other than the sovereign power |
Dependence | Independent; not controlled by any other legislative authority | Depends on a superior authority for existence and validity |
Indian form | Acts of Parliament and State legislatures (plenary within their field, subject to the Constitution) | Rules, regulations, notifications, bye-laws, rules of court, statutes of autonomous bodies |
Can another body override it? | No subordinate body can; only a legislature competent over the subject (in the Concurrent List, subject to Art. 254) | Yes, by the parent legislature or superior authority |
Grounds of challenge in India | Legislative competence; fundamental rights; other constitutional limits; manifest arbitrariness (Shayara Bano) | All those, plus ultra vires the parent Act, repugnancy to any statute, manifest arbitrariness (P. Krishnamurthy) |
Parliamentary scrutiny | Passed by the legislature itself | Laid before the House; Committees on Subordinate Legislation |
Further delegation | Can delegate non-essential functions (Delhi Laws Act) | Cannot sub-delegate without authority: delegatus non potest delegare |
7. Evaluation
Salmond's classification was drawn for a unitary State with a sovereign Parliament, and in that setting it is absolute: supreme legislation stands above all review. In India it becomes relative: every legislature is subordinate to the Constitution yet plenary within its field. The real Indian distinction is between plenary and delegated legislation, and its practical content lies in the wider grounds of challenge against delegated rules. The rise of delegated legislation has shifted much real law-making to the executive, which makes the essential-function doctrine, laying requirements and judicial review the indispensable safeguards of the rule of law (Note 40).
Memory Aid ▪ Analogy: the board and the branch circular. The board's resolution is supreme within the company; a branch circular is valid only within the board's authority. The board itself answers to the company's constitution, as an Indian legislature answers to the Constitution. ▪ Five kinds: 'Can Every Judge Make Amendments?' Colonial, Executive, Judicial, Municipal, Autonomous (as in Note 23). ▪ Three controls: 'LPJ', like a 'Lawyer's Paper Jacket'. Legislative, Procedural, Judicial. ▪ Krishnamurthy grounds: 'Can Five Constitutional Parents Repeal Madness?' Competence, Fundamental rights, Constitution, Parent Act, Repugnancy to statutes, Manifest arbitrariness. |
Exam Corner: Likely Questions ▪ Distinguish between supreme and subordinate legislation. Is the legislation of the Indian Parliament supreme in Salmond's sense? ▪ What are the kinds of subordinate legislation? Explain the limits on delegation with reference to In re Delhi Laws Act. ▪ Discuss the grounds on which subordinate legislation may be challenged in India, with reference to Indian Express Newspapers and P. Krishnamurthy. ▪ Explain the legislative, procedural and judicial controls over delegated legislation. |
Exam Corner: MCQ Traps ▪ In Salmond's scheme, judicial legislation means rules of court, a kind of subordinate legislation, not judge-made law. ▪ In re Delhi Laws Act (1951, 7 judges): the essential legislative function cannot be delegated. It was a Presidential reference, not an ordinary appeal. ▪ Ultra vires the parent Act and repugnancy to any statute are grounds against subordinate legislation only; a statute cannot be ultra vires another statute. ▪ An Ordinance is legislative power exercised by the executive under the Constitution, not delegated legislation; it has the force of an Act (Krishna Kumar Singh, 2017). ▪ The Queen v Burah (Privy Council, 1878): the Indian legislature was not a delegate of the imperial Parliament but had plenary powers within its limits. |
8. Frequently Asked Questions
Q. Is a State Act subordinate legislation because State legislatures are below Parliament?
A. No. A State legislature derives its power directly from the Constitution and is plenary within the State List and, subject to Art. 254, the Concurrent List. Its Acts are not dependent on any parliamentary Act for their validity.
Q. Can a rule be struck down if it is inconsistent with a statute other than its parent Act?
A. Yes. Repugnancy to the laws of the land, that is, to any enactment, is a recognised ground against subordinate legislation (P. Krishnamurthy, 2006).
Q. Must the government hear affected persons before making rules?
A. Not ordinarily. Making subordinate legislation is a legislative function, so natural justice does not require a hearing unless the parent Act provides for consultation or objections (Cynamide India, 1987).
See also: Note 23 (legislation), Note 95 (parliamentary sovereignty versus constitutional supremacy), Note 38 (sovereignty), Note 40 (rule of law), Note 46 (constitutional doctrines), Note 102 (legislation versus precedent).
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