Judicial and Procedural Control Unit 3-

law

1. Judicial Control Over
Delegated Legislation
Unit 3

2. Forms of Judicial Control
Substantive
Ultra Vires
Procedural
Ultra Vires

3. Substantive Ultra Vires
When an Act of legislature enacts in excess of power conferred
on the legislature by the Constitution, the legislation is said to
be ultra vires the Constitution.
On the same principle, when a subordinate legislation goes
beyond what the delegate is authorised to enact, it acts ultra
vires. This is known as substantive ultra vires.

4. Instances of Substantive Ultra
Vires

5. Where Parent Act Is Unconstitutional
This happens when the delegating statute itself is ultra vires the Constitution
and is bad, delegated legislation is necessarily bad.
Tan Bug Taimv. Collector of Bombay (AIR 1946)
Chintamanrao v. State of M.P. (AIR 1951)
Naga People’s Movement of Human Rights v. UOI (1998)

6. Where Parent Act Delegates Essential
Legislative Functions
Who shall perform
primary and
essential legislative
functions?
Can the parallel
Parliament be
established ?

7. Where Delegated Legislation Is Inconsistent
With The Parent Act
Delegated authority must be exercised strictly within the authority of law.
Delegated legislation can be held valid only if it conforms exactly to the power granted.
United States v. Two hundred Barrels of Whisky
Mohd. Yasin v. Town Area Committee (AIR 1952)
Indian Council of Legal Aid & Advice v. Bar Council of India (1995)
Tahir Hussain v. District Board, Muzaffarnagar (AIR 1954)
State of M.P. v. Bhola (2003)

8. Where Delegated Legislation Is Inconsistent
with General Law
A subordinate legislation apart from being intra vires the Constitution and
consistent with parent Act, must also be in consonance with general law.
Hindustan Times v. State of U.P. (2003)
Indravadan H. Shah v. State of Gujarat (1986)
Subordinate or delegated legislation made by the executive cannot be contrary
to the law of the land.

9. Where Delegated Legislation is
Unconstitutional
Here parent Act may be constitutional and valid and delegated legislation may be consistent with parent Act, yet the
delegated legislation may be held invalid on the ground that it contravenes the provisions of the Constitution.
Narendra Kumar v. Union of India (AIR 1960)
Dwarka Prasad Laxmi Narainv. State of U.P. (AIR 1954)
Air India v. Nargesh Meerza (1981)
D. S. Nakra v. Union of India (1983)

10. Where The
Delegated
Legislation Is
Arbitrary
Article 14 of
the Indian
Constitution.
Nargesh
Meerza Case

11. Where
Delegated
Legislation is
Unreasonable
Indian Express
Newspapers (Bombay)
(P)Ltd. v. UOI (1985)
Nargesh Meerza Case

12. Where
Delegated
Legislation Is
Mala Fide

13. Where
Delegate
Further
Delegates
Sub-delegation
of legislative
power.
Sub-delegation
of judicial power
Sub-delegation
of administrative
power

14. Sub-delegation
ofLegislative
Power

15. GullapalliNageswaraRaov.A.P.
SRTC(AIR1959)
“Nopublicfunctionarycan
himselfperformalltheduties
heisprivilegedtoperform,
unaidedbyagentsand
delegates,butthisfromthis
circumstancesitdoesnot
followthathecandelegatethe
exerciseofhisjudgementand
discretiontoothers.”(Mahajan
JinDelhiLawsAct,1912)
Sub-
delegation of
Judicial
Power

16. Sub-delegation
of
Administrative
Power
•Administrativepowercanbesub-delegated
incertaincircumstancesandoncertain
conditions

17. Where
Delegated
Legislation
Operates
Retrospectively
Delegated legislation cannot have any retrospective
effect unless such power is conferred on the rule-
making authority by the parent Act.
The legislature can always legislate prospectively as
well as retrospectively subject to the provisions of
the Constitution.
State of M.P. v. Tikamdas (1975)
Vijayalakshmi Rice Mills v. State of A.P. (1976)

18. Where
Delegated
Legislation
Excludes Judicial
Review
•Ruleoflawrecognisesjudicial
reviewoflegislativeandquasi-
legislativeacts.
•Validityofdelegatedlegislationcan
bechallengedinacourtoflaw.
•“shallhaveeffectasifenactedin
theAct”,“shallbefinal”,“shallbe
conclusive”,“shallnotbecalledin
questioninanycourt”,etc.

19. Procedural Control
(Ultra Vires)

20. Procedural Ultra Vires
•Subordinate legislation fails to comply with procedural requirement
prescribed by the parent Act or by a general law, it is known as procedural
ultra vires.
•Requirement as to may be directory or mandatory.

21. Requirements as to procedure
Publication Consultation

22. Publication-object
•“Ignoranceoflawisnoexcuse.”
•Wholeofourlawisaccessibletothepublic
•“Adequatemeansareadoptedtopublicisedelegatedlegislationsothat
peoplearenotcaughtonthewrongfootinignoranceoftherules
applicabletotheminagivensituation.Thesystemofpublicationoughtto
besuchthatdelegatedlegislationisnotonlymadeknowntothepeople,
butitisalsoeasytolocateasandwhennecessary.”(JainandJain)

23. Publication: Whether Directory or Mandatory
Harla v. State of Rajasthan (AIR 1951)
Narendra Kumar v. Union of India (AIR 1960)
State of Maharashtra v. Mayer Hans George (AIR 1965)

24. Publication: Mode
Even if requirement of publication is held to be mandatory, the mode and
manner of publication may be held to be directory and strict compliance
thereof may not be insisted upon.
Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur (AIR 1965)
Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee
(1975)

25. Publication:
Effect
•Once published-delegated legislation-
effective from the date of promulgation or
publication.

26. Publication: Defect
Publication of delegated legislation and the mode of publication
are two different things.
If delegated legislation is not published at all, it will be ineffective
and of no consequence.
If it is not published in a particular manner, it would not
necessarily make the instrument void. (Considered by the Court )

27. Omnibus Curative Clause
Ganga Clause
No act done or proceeding taken shall be called in question merely on the ground
of irregularity in such act or proceeding, not affecting merits of the case.
B. K. Srinivasan v. State of Karnataka (1987)
Anuradha Bhasin v. Union of India (2020)

28. Consultation
•Itisatechniqueadoptedby
courtstocontrolexerciseof
powersbyexecutive
•Consultationisaprocesswhich
requiresmeetingofminds
betweenthepartiesto
consultation,onmaterialfacts,to
cometoarightconsultation.

29. Consultation: Object
•Tocheckandcontroltheexerciseoflegislative
powerbytheexecutive.
•Safeguardagainstmisuseoflegislativepower.
•Avoidingclashbetweendepartmentexercising
legislativepowersandtheinterestmostlikelyto
beaffected.(WadeandPhilips)
•Scopeforsuggestionsandadvice.
•Toputabreakonadministrativeabsolutism.

30. Contd…
•Consultationpostulatesfullandeffective
deliberation,exchangeofviewpoints,
meetingofmindsandexaminationof
relativemeritsofthepointofview.
•itisnotcompleteunlessthepartiesthereto
maketheirrespectiveviewpointsknownto
othersandexaminerelativemeritsoftheir
views.

31. Consultation: India
Official consultation
Consultation with statutory bodies
Consultation with advisory bodies
Draft rules by affected interests

32. Consultation: Mandatory or Directory
No specific provisions
relating to consultation
should be held as
mandatory or not.
Municipal Corpn. of
greater Bombay v. New
Standard Engg. Co. Ltd.
(1991)

33. Effect: Failure to Consult
T. B. Ibrahim v. RTA (AIR 1953)
Hindustan Zinc Ltd. V. A. P. SEB (1991)
BanwarilalAgrawallav. State of Bihar (AIR 1961)
UOI v. S.H. Sheth(1977)