Judicial control over Delegated legislation
Introduction :
With the growth of the administrative process in the 20th century the delegated legislation has assumed great importance, today most of the laws which govern the people come not from the legislature but the chambers of administrators.
Delegated legislation is bureaucratic legislation, it involves the transfer of legislative power from the legislature to the executive. The delegation of the legislative power is permissible only when the legislative policy is adequately laid down and the delegate is empowered to carry out the policy within the guidelines laid down by the legislature. Delegated legislation does not fall beyond the scope of judicial review, the courts often decide the validity of the delegated legislation on the ground whether it is ultra vires or Intra vires to the parent Act.
Doctrine of ultravires :
‘Ultra vires is a Latin phrase that means beyond the power or lack of power. An act is said to be ultra vires if it is done by a person or a body of persons which is beyond their authority or jurisdiction. The doctrine of ultra vires is the basic doctrine in the area of administrative law, it provides that an authority has to exercise only such power as it is conferred on it by the law. An action of the authority is said to be Intra vires when it falls within the ambit of the powers conferred on it, but ultra vires when it goes beyond the power conferred on it. The doctrine has two aspects ;
- Substantive ultravires ;and
- Procedural ultravires
I. Substantive ultravires:
Substantive ultra-vires means that the delegated legislation has no substantive power under the empowering Act to make the rules in question in other words it means that the delegate cannot make a rule which is not authorized by the parent statute. Therefore the delegated legislation may be held invalid on the ground of substantive ultra-vires. The following are the circumstances of substantive ultra-vires :
1. Constitutionality of the parent Act :
The first requirement for the delegation to be valid is that the parent Act or the enabling statute by which the legislative power is conferred on the executive authority must be valid and constitutional. If the parent statute is itself ultra-vires the constitution then the delegated legislation is bad. In Chintaman Rao v. State of Madya Pradesh, [1] the parent Act has authorized the deputy commissioner to prohibit the manufacture of bidis in some areas for a certain period, it was held that the parent Act was unconstitutional as it violated Art. 19(1) (g) of the constitution and the court also struck down the order passed by the deputy commissioner.
2. Delegation of essential legislative functions :
It is a well-settled principle that the essential legislative functions must be carried out by the legislature itself, if the essential legislative functions are delegated then the same will be struck down .some essential legislative functions include a repeal of the law, modification of the Act, and imposition of taxes.
3. Constitutionality of the delegated legislation :
If the parent Act or some of its provisions through which the delegation is conferred are in contravention of the constitution then the same will be declared as ultra vires. In CB Muttamma v. Union of India,[2] a provision in service-rule making a female employee obtain the permission of the government before solemnizing the marriage and denying the right to get an appointment on the ground that she was married was held to be unconstitutional.
4. Unreasonableness and Arbitrary :
If the delegated legislation is unreasonable and arbitrary then it will be declared invalid. In Air India v. Nargeesh mirza, [3] a regulation framed by air India providing that services of an air hostess could be terminated if she becomes pregnant was held arbitrary, unreasonable, and violative of articles 14 and 15 of the constitution. And in the case of the Indian council of legal aid and advice v. Bar Council of India, [4] the court held that the rule framed by the bar council of India barring enrolment of a person who is 45 years of age is violative of articles 14,19 (1)(g) and 21 of the constitution.
5. Malafide :
If the delegated legislation is made by the administrative authority exercising its power in Malafide or with the ulterior motive then the same will be held ultra-vires and invalid. In Narendra Kumar v. Union of India, [5] the court struck down the delegated legislation on the ground that the delegated legislation has acted Malafide or in bad faith.
6. Exclusion of the judicial review :
Sometimes the clause is inserted in the parent Act ousting the jurisdiction of the courts, such an ouster clause cannot affect the jurisdiction of the courts under articles 32,136, and 226 of the constitution as judicial review is now considered as a part of basic structure doctrine.
7. Retrospective operation :
Sometimes a delegated authority while making subordinate legislation tries to give retrospective effect to the rules, but this power cannot be used by the delegated authority unless it expressly confers powers in this regard. The court in the case of State of Madhya Pradesh v. Tikim Das [6] held that “the delegated authority cannot use the power of retrospective effect for rules and regulations unless the concerned statute expressly or by necessary implications confers power in this behalf”.
II. Procedural ultravires :
The delegated legislation may be challenged on the ground that it is not following the procedure prescribed by the parent Act, if the delegated legislation fails to comply with procedural requirements prescribed by the parent Act or by the general law then it is said to be procedural ultra-vires.
The formalities which the authorities have to follow may include consultation with the interested bodies, publication of the draft rules and regulations, hearing of objections, etc. If these requirements are mandatory and the authorities disregarded these formal requirements then the same may be invalidated by the court being ultra-vires the Enabling Act.
Conclusion :
With the growth of the administrative law in the 20th century, the delegated legislation has acquired a very prominent place in the administration, with ever-widening state activities the parliament cannot exercise all its functions without delegation, and hence delegation is utmost necessary however the delegated legislation must not go beyond its authority while excessing its power and the validity of the delegated legislation will be determined by the courts whether it is Intra vires or ultra-vires to the parent Act.
REFERENCES:
Cases:
- Chintaman Rao v The State Of Madhya Pradesh.,1951 AIR 118, 1950 SCR 759.
- C. B. Muthamma vs Union Of India & Ors.,1979 AIR 1868, 1980 SCR (1) 668.
- Air India Etc. Etc vs Nergesh Meerza & Ors. 1981 AIR 1829, 1982 SCR (1) 438
- Indian Council Of Legal Aid & … vs Bar Council Of India & Anr .,1995 AIR 691, 1995 SCC (1) 732
- Narendra Kumar And Others vs The Union Of India And Others .,1960 AIR 430, 1960 SCR (2) 375
- The State Of Madhya Pradesh And … vs Tikamdas., AIR 1975 SC 1429, (1975) 2 SCC 100, 1975 Supp SCR 234, 1975 (7) UJ 410 SC
Online materials :
- Pratiksha Gautam and Sakshi Nathani, ‘ Judicial control: Doctrine of ultra vires in administrative law., available here.
- https://lexforti.com/legal-news/the-doctrine-of-ultra-vires/
- https://www.lawteacher.net/free-law-essays/constitutional-law/the-doctrine-of-substantive-ultra-vires-constitutional-law-essay.php
Books :
- C.K.Takwani, ‘lectures on administrative law’( eastern book company, Lucknow .,6th ed.,2018)
- MP Jain and SN Jain, ‘Principles of administrative law’(Lexis Nexis, Haryana.,7th ed.,2011)
Author: Naveen Talawar,
student in Karnataka state law university's law school