Delegated Legislation

Table of Contents
SAMPURNA’S CLASS NOTES.......................................................................................................................... 1
INTRODUCTION....................................................................................................................................... 2
WHAT IS DELEGATED LEGISLATION?............................................................................................... 2
TYPES OF DELEGATED LEGISLATION.............................................................................................................. 2
STATUTORY INSTRUMENTS......................................................................................................................................5
BY-LAWS.............................................................................................................................................................5
NEED FOR ADMINISTRATIVE RULE MAKING...................................................................................7
CONSTITUTIONALITY OF DELEGATED LEGISLATION: WHEN IS DELEGATED LEGISLATION
PERMISSIBLE?......................................................................................................................................... 7
LIMITS OF DELEGATED LEGISLATION:............................................................................................................ 8
TWO WAYS TO APPROACH DELEGATED LEGISLATION..................................................................................10
SAFEGUARDS OF DELEGATED LEGISLATION................................................................................................. 10
CONTROL OVER DELEGATED LEGISLATION.................................................................................................. 12
(1) PARLIAMENTARY CONTROL:.........................................................................................................................12
JUDICIAL CONTROL..............................................................................................................................................18

What is delegated legislation and what are its various types. Reasons for growth (4 asked).
Safeguards of delegated legislation. (+1 judicial pronouncement on it) V
Short Notes
Safeguards of Delegated Legislation II
Reasons for growth of Delegated Legislation

Sampurna’s Class Notes

Delegated Legislation- must lay down the guidelines in such a fashion that there is no
problem in the implementation aspect of the same, should not violate the parent act, made in
accordance with the purposes laid down in the Act
Jalan Trading Company v Mill Majdur Sabha [1967]- case of excessive delegation by the
government; Section 37(1) and (2) of the Payment of Bonus Act (1965)
Panama Refining Co. v Rayans
Types include Skeleton legislation, power to impose tax, conditional legislation, sub
delegation and Henry VIII clause
Safeguards against Delegated legislation
1. Parliamentary Control
2. Judicial Control can be exercised when (a) Parent act is ultra vires to the Consti,
Delegated legislation is ultra vires to the Consti, doctrine of ultra vires [L Chandra
Kumar case], Non-compliance with the Court order, Non-application of the mind
3. Instruments like the RTI act
All of them can be applied and there is no debate about which one is better
Introduction
The development of the legislative powers of the administrative authorities in the form of the
delegated legislation occupies very important place in the study of the administrative law.
There is no such general power granted to the executive to make law it only supplements the
law under the authority of legislature. This type of activity where the power has been given to
the administrative authorities (executive) to supplement legislation has been described as
delegated legislation or subordinate legislation. Administrative rule making can be regarded
as useful, inevitable and indispensable.

What is Delegated Legislation?

Delegated legislation means legislation made by authorities other than the Legislature. For
example, the rules, regulations, bye-laws, orders, schemes, directions, notifications, etc are
the laws which are made by the administrative authorities and these are termed as delegated
legislations.
In other words, “when an instrument of legislative nature is made by the authority in the
exercise of express power which has been delegated by the legislature is called sub-ordinate
or delegated legislation.”

Types of Delegated Legislation

The Donoughmore committee, has distinguished delegated legislation into normal and
exceptional types. The former is marked by the following characteristics – its limits are
clearly defined by the parent act, it does delegate power to legislate on matters of principle or
to impose taxation. The exceptional type delegates legislative powers:
To legislate on matters of principle, and even impose taxation.
To amend acts of Parliament, either by the act by which the powers are delegated, or other
acts.
Conferring so why get a discretion on the minister that it is almost impossible to know what
limit Parliament did intend to impose.
Abandoning limits of Delegated powers not formally, yet actually by forbidding control by
the courts of law.
There are various types of delegation of legislative power in India:

> SKELETON LEGISLATION:

In this type of delegation of legislative power, the enabling statutes set out broad principles
and empower the executive authority to make rules for carrying out the purposes of the Act.
A typical example of this kind is the Mines and Minerals (Regulation and Development) Act,
1948.
Case: Ravi Sankar Bagla v. State of Madhya Pradesh (1954)

Held: The delegation is valid on the ground that Sec. 3 of Essential Supplies (temporary
Powers) Act lays down the legislative policy with sufficient clarity within which the
government can operate. Sec. 6 is also valid because it is not delegation of power to repeal
the law but only an attempt to overcome the difficulty.

> POWER OF INCLUSION AND EXCLUSION, AMENDMENT OF SCHEDULE:

• A common legislative practice is to confer power on the Government to bring
individuals, bodies or commodities within the purview of a statute or to exclude them from a
statute.
• A usual legislative formula is to say that the Act applies to the items mentioned in the
schedule of the Act, but Government has power to alter the schedule by adding or removing
some items.
• Thus, the range of operation of the Act can be expanded or reduced by making
alterations in the schedule through delegated legislation.
• To some extent, this provision involves delegation of power to modify the parent Act,
but invariably such a provision has been upheld as valid.

Case: Edward Mills Co. v. State of Ajmer

Facts: The Minimum Wages Act, 1948 has been enacted, as stated in its preamble, “to
provide for fixing minimum wages in certain employments”. The Act applies to employments
mentioned in the schedule, but Government is given power to add any other employment
thereto and, thus, to extend the Act to that employment.
The Act lays down no norms on which Government may exercise its power to add any
employment to the schedule.
Held: SC upheld the provision arguing that the policy provided that the Act would fix
minimum wages in order to avoid exploitation of labour in those industries where wages were
very low because of unorganized labour or other causes.

Case: Hamdard Dawakhana vs. Union of India

Facts: Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954
was challenged. This provision prohibited an advertisement suggesting that a medicine could
be used for curing any venereal disease or “any other disease” specified in the rules.
Held: The Court held that no standards or principles had been laid down in this Act for
specifying “any other disease" in the rules and hence the power delegated to make rules was
invalid.

> POWER OF EXEMPTION AND MODIFICATION OF THE STATUTE

Case: A N Parasuraman v. State of TN

Held: The Tamil Nadu Private Educational Institutions (Regulation) Act, 1966 was declared
ultra vires because the legislature did not lay down any policy or guidelines with reference to
which the power to regulate and control private educational institutional can be exercised by
the government.
Case: Baburam Jagdish Kumar & Co. v. State of Punjab

• The Punjab General Sales Tax Act, 1948 levied a Purchase Tax on goods except the
items mentioned in the schedule annexed. This meant that, if the government added an item
to the schedule it became tax exempt.
• Held: The Supreme Court upheld the provision against challenge on the basis of
excessive delegation. The power to add to the schedule has been upheld.

> REMOVAL OF DIFFICULTIES:

• Statutes usually contain a removal of difficulty clause, nick-named in Britain as the
Henry VIII clause because “that king is regarded popularly as the impersonation of executive
autocracy”
• The provision is used usually when the Legislature passes a statute implementing a
new socio-economic scheme. Not being sure of what difficulties may crop up in the future
implementation of the provisions of the law, the Legislature introduces therein a “removal of
difficulty” clause envisaging that Government may make provisions to remove any difficulty
that may arise in putting the law into operation.
• Generally, two types of “removal of difficulty” clauses can be identified in the Indian
statutes:
(a) A narrow power under which “power to remove difficulties” has to be exercised
consistent with the provisions of the parent Act. In such a case, the Government cannot
modify any provision of the statute itself.
(b) The other, a broader version, may authorize modification of the parent Act, or any
other Act, in the name of removal of difficulties. Usually, such a power is limited in point of
time, say two or three years. In principle, such a power is objectionable as it vests a vast
power in the Executive.

In the Indian context, the following are the types of delegated legislations:

Statutory instruments
They are the one which is formed by the government. For example – a parent act is an act
which permits the parliament for making the law. Orders in the council are generally made by
the government when there is a need and it can affect the public at large as well as an
individual.

By-Laws
They are created by the local authority which is approved by the Central Government. There
are many reasons for the delegation of the legislature. The parliament does not have that
much time to deliberate and debate about every topic. Therefore, delegated legislation helps
in making laws rapidly than the Parliament and the procedure of the Parliament is also very
slow as the bills for every law needs to pass from every stage. Further, it is also believed that
the Member of Parliament does not possess the technical ability which is required to make
law.
For example – making any law regarding taxation requires knowledge as well as experience
which can be done by the person who is professional in that field. In the case of welfare
purpose, the local authority can understand the needs of the people in his area more
effectively than others. The democratic bodies have many important powers for the
delegated legislation which can be easily used for updating the legislation according to the
requirement which leads to social welfare.

But there should be control over delegated legislation. Delegated legislation is controlled by
the Parliament and the Judiciary. Parliament has the overall control over the delegated
legislation as it takes account with the statutory committees which make law through bills.
The main object of parliamentary control is to look that there is no abuse or unnecessary use
of the powers given to rulemaking authorities.

Cases
In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the
provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that
any rules framed under the Act must be presented before both the houses of the Parliament.
Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented
in the Parliament.

There are a number of rules in the area of judicial control over the delegation of legislation
which is laid down by the judiciary.

In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and
should not suffer from any unreasonableness.

Delegated legislation should protect the rule of law and there should be no arbitrariness.
Rules framed which violates the Parent Act are illegal. Rules framed which violates any other
statute should also be considered as void. Delegated legislation made with mala fide intention
is also considered illegal.

To have a better understanding please go through the attached PowerPoint Presentation. It has
a better version of explanation about the Control Mechanism of Delegated Legislation.
Need for Administrative Rule Making
The reasons as to why the Legislature alone cannot perform the job of legislations is due to
the following:
1.Certain emergency situations may arise which necessitate special measures. In such cases
speedy and appropriate action is required. The Parliament cannot act quickly because of its
political nature and because of the time required by the Parliament to enact the law
2.The over-burden of the Parliament has increased and it has no time for the consideration of
complicated and technical matters. The Parliament cannot provide the society with the
requisite quality and quantity of legislation because of lack of time.
3.Certain matters covered by delegated legislation are of a technical nature which requires
handling by experts. In such cases it is inevitable that powers to deal with such matters is
given to the appropriate administrative agencies to be exercised according to the requirements
of the subject matter.
4.Parliament while deciding upon a certain course of action cannot foresee the difficulties,
which may be encountered in its execution. Accordingly various statutes contain a 'removal
of difficulty clause' empowering the administration to remove such difficulties by exercising
the powers of making rules and regulations
5.The practice of delegated legislation introduces flexibility in the law. The rules and
regulations, if found to be defective, can be modified quickly. Experiments can be made and
experience can be profitability utilized.

Constitutionality of Delegated Legislation: When is delegated

legislation permissible?

Delegation is considered to be a sound basis for administrative efficiency and it does not by
itself amount to abdication of power if restored to within proper limits. Constitutionality of
Administrative Rule Making means the possible limits of the constitution of any country
within which the legislature can validly delegate rule making power to other
administrative agencies.
The delegation should not, in any case, be unguided and uncontrolled. Parliament and State
Legislatures cannot abdicate the legislative power in its essential aspects which is to be
exercised by them.
It is only a non-essential legislative function that can be delegated and the argument in such
always lies in the line of demarcation between the essential and nonessential legislative
functions. The essential legislative functions consist in making a law. It is to the legislature to
formulate the legislative policy and delegate the formulation of details in implementing that
policy.
Legislative Policy: The legislative model used to tackle a certain issue via legislation. It is
reflected in the preamble, objectives and scheme of the Act, factual and circumstantial
background.
Discretion as to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive.

LIMITS OF DELEGATED LEGISLATION:

The question of permissible limits given in the Constitution, within which the law making
power may be delegated, can be studied in different periods:

(1)When Privy Council was Highest Court of Appeal:

In the case of R v. Burrah, it was held that there is no limit on delegation of legislative
functions because Indian legislature is not a delegate of British of British Parliament. Also,
since the Privy Council validated only conditional legislation, the delegation of legislative
power is not permissible.
(2)When Federal Court became the High Court of Appeal:
In the case of Jatindra Nath Gupta vs. Province of Bihar, validity of Sec. 1(3) of Bihar
Maintenance of Public Order Act was challenged – which authorized provincial government
to extend life of the Act for one more year after making few modifications which it deems fit.
Held: The delegation of the legislative power of extension of the Act after modification is
unconstitutional because it is an essential legislative function which should not have been
delegated. However, Justice Fazal Ali gave dissenting opinion and held that, it is not
unconstitutional because, extension of the Act with certain modification is not an essential
function but merely the continuation of the Act. (pg: 92)
(3)When Supreme Court is the Highest Court of Appeal:
The position of delegated legislation was clarified in the case of In Re Delhi Laws Act Case
Here, the President of India sought the opinion of the Supreme Court under Article 143 of the
Constitution to settle the concept and the limits of delegated legislation. Three acts were
challenged in this case and this case is called “Bible of Delegated Legislation.”
(a)Section 7 of the Delhi Laws Act, 1912: It delegated the power to the provincial
government to extend any law which was in force in any part of British India, after making
necessary restrictions and modifications.
(b)Section 2 of Ajmer Merwara (Extension of Laws Act) , 1947: It delegated the power to the
government to extend any law which is In force in any other province to the province of
Ajmer-Merwara, after making necessary modification and restriction.
(c) Section 2 of Part “C” States (laws) Act, 1950: It delegated the power to the Central
Government to extend any enactment which was in force in any Part A State, to any Part C
States after making necessary modifications and restrictions. It also empowered the
government to repeal or amend any corresponding laws which are already applicable in Part
C States.
Held:
•Doctrine of Separation Of Power is not a part of Indian Constitution.
•The principle of “Delegatus non protest delegare” – if the legislative powers have been
delegated, then it cannot be further delegated, is not applicable because Indian Parliament
was not an agent of anybody.
•Parliament cannot abdicate (quit or renounce) or efface (do away with) itself by creating a
parallel legislative body.
•Power of delegation is ancillary to the power of legislation.
•The power of delegation can be exercised with the limitation.
The limitation is that, the legislature cannot part with its essential legislative powers that have
been expressly vested to it by the Constitution.
Therefore, Section 7 of Delhi Laws Act is valid. Section 2 of Ajmer Merwara Act is valid.
Section 2 of Part C States Law is also valid. However, the modification repeal of the
legislative policy is not valid because it amounts to excessive delegation of legislative
powers.
•Legislature alone cannot give that quantity and quality of law which is needed for the
functioning of a modern state.
•In view of a country which has a written constitution, the power of delegation cannot be
unlimited. There are limits to that delegating power.
•The power to repeal an existing law or modify a legislative policy cannot be delegated
because they are essential functions of the legislature which cannot be delegated.
Therefore, power of delegation is a constituent element of legislative powers within the limits
of Article 245 of the Constitution.

Two Ways to Approach Delegated Legislation

1.Indian Legislature can delegate its power to keeping in mind the limitation that it does not
efface itself, or abdicate its powers.
In other words,
(a) the legislature should never give up its control over the delegate (executive)
(b) it must not destroy its own legislative power;
(c) it must retain in its hands the ultimate control over the authority so as to be able to
withdraw the delegation whenever the delegate (executive) does something wrong or foolish.

2.The legislature should not delegate the essential legislative function which comprises of the
formulation of policy and enacting it into a binding rule of conduct.
Meaning: It means that the legislature should lay down standards or policy in the delegating
Act and the delegate (administrative authority) may be left with the power to execute the
policy. Delegation is valid only when it is confined to legislative policies and guidelines. A
delegate must exercise its jurisdiction within the four corners of its delegation.

Safeguards of Delegated Legislation

In a general sense, since delegated legislation is a necessary evil, and is likely to increase in
volume, rather than diminish, in view of the complex social organisation and vast
developmental and promotional activities that a modern government undertakes, some
safeguards and controls are necessary and desirable. The following safeguards should set
bounds to the system of delegated legislation –
1. Meets to lawmaking powers given to the executive should be carefully defined by the
enabling act.
2. The jurisdiction of courts should not be curtailed. As the donor more committee puts it, the
rule of law requires that all regulation should be open to challenging the courts except when
Parliament deliberately comes to the conclusion that it is a sensual in the public interest to
create an exception and to confer on a minister the power of legislating with the immunity
from challenge.
3.The department should consult outside interests, which are directly affected by the
proposed exercise of rule – making powers.
4.explain a tree notes should be attached to all regulations so that only man me know why a
particular regulation is needed, and how it would be exercised. Besides there should be an
explanatory memorandum in the enabling bill indicating what types of regulations are to be
made under the bill when it is enacted.
5. Uniform procedure should be adopted in regard to all regulations requiring them to be
numbered, printed, publish, and cited.
6. Rules and regulations should normally be published; their publication should be a
condition precedent to their coming to course. Seven. Parliamentary control and supervision
should be strengthened.
8. Rule-making powers should be delegated trustworthy authorities which are approved of by
the Parliament.
In the Indian context, the case of the position of delegated legislation was clarified in the case
of In Re Delhi Laws Act Case
Here, the President of India sought the opinion of the Supreme Court under Article 143 of the
Constitution to settle the concept and the limits of delegated legislation. Three acts were
challenged in this case and this case is called “Bible of Delegated Legislation.”
(a)Section 7 of the Delhi Laws Act, 1912: It delegated the power to the provincial
government to extend any law which was in force in any part of British India, after making
necessary restrictions and modifications.
(b)Section 2 of Ajmer Merwara (Extension of Laws Act) , 1947: It delegated the power to the
government to extend any law which is In force in any other province to the province of
Ajmer-Merwara, after making necessary modification and restriction.
(c) Section 2 of Part “C” States (laws) Act, 1950: It delegated the power to the Central
Government to extend any enactment which was in force in any Part A State, to any Part C
States after making necessary modifications and restrictions. It also empowered the
government to repeal or amend any corresponding laws which are already applicable in Part
C States.
Held:
•Doctrine of Separation Of Power is not a part of Indian Constitution.
•The principle of “Delegatus non protest delegare” – if the legislative powers have been
delegated, then it cannot be further delegated, is not applicable because Indian Parliament
was not an agent of anybody.
•Parliament cannot abdicate (quit or renounce) or efface (do away with) itself by creating a
parallel legislative body.
•Power of delegation is ancillary to the power of legislation.
•The power of delegation can be exercised with the limitation.
The limitation is that, the legislature cannot part with its essential legislative powers that have
been expressly vested to it by the Constitution.
Therefore, Section 7 of Delhi Laws Act is valid. Section 2 of Ajmer Merwara Act is valid.
Section 2 of Part C States Law is also valid. However, the modification repeal of the
legislative policy is not valid because it amounts to excessive delegation of legislative
powers.
•Legislature alone cannot give that quantity and quality of law which is needed for the
functioning of a modern state.
•In view of a country which has a written constitution, the power of delegation cannot be
unlimited. There are limits to that delegating power.
•The power to repeal an existing law or modify a legislative policy cannot be delegated
because they are essential functions of the legislature which cannot be delegated.
Therefore, power of delegation is a constituent element of legislative powers within the limits
of Article 245 of the Constitution.

This case can be viewed as an example to impose safeguards on the power of delegated
legislation.

Control over Delegated Legislation

(1) Parliamentary Control:
• In a parliamentary democracy it is the function of the legislature to legislate. If it
seeks to delegate its legislative power to the executive because of some reasons, it is not only
the right of the Legislature, but also its obligation, as principal, to see how its agent i.e. the
Executive carries out the powers entrusted to it.
• Since it is the legislature which grants legislative power to the administration,
it is the responsibility of Legislature to ensure the proper exercise of delegated legislative
power, to supervise and control the actual exercise of this power, and ensure the danger of its
objectionable, abusive and unwarranted use by the administration.
• In U.S.A., the control of the Congress over delegated legislation is highly limited
because neither is the technique of “laying” extensively used nor is there any Congressional
Committee to scrutinize it. It is considered only the duty of courts to review the legality of
administrative rule-making.
• In England, under the provisions of the Statutory Instruments Act, 1946, all
administrative rule-making is subject to the control of Parliament through the Select
Committee on Statutory Instruments.
• In India, parliamentary control of administrative rule-making is implicit as a normal
constitutional function because the executive is responsible to Parliament.

(A ) DIRECT GENERAL CONTROL:

This form of parliamentary control is exercised at the time of passing the enabling act.

a. It is exercised in various methods such as debates on the act which involve delegation.
Members discuss about delegation which includes aspects such as necessity, extent, type of
delegation and the authority to whom power is delegated.
b. Furthermore, by means of questions any Member may ask questions on any aspect of
delegation of legislative powers and, if dissatisfied, may give notice of discussion pursuant to
Rule 59 of the Lok Sabha Rules of Procedure and Conduct.
c. Where notices in house moving resolutions, any member may pass a resolution on
motion, if the matter regarding delegation of power is urgent and immediate & reply of the
government is unsatisfactory.

(B ) DIRECT SPECIAL CONTROL:

• This control mechanism is practiced by way of the "laying" techniques on the table of
house rules and regulations introduced by the administrative body.
• The use of this laying technique in the 1939 to 1969 Reorganization Act, authorizes
the president to reorganize the executive government by administrative rule making.
• The clause states that the delegated legislation will take effect immediately, but will
be subject to annulment by either house's adverse resolution.
Types of laying:
The select committee on delegated legislation summarized the laying procedure under
following heads:
1. Laying without further provision for control
In this type of laying the rules and regulations come into effect as soon as they are laid. It is
simply to inform the house about the rules and regulations.

2. Laying with immediate effect but subject to annulment

Here the rules and regulations come into operation as soon as they are laid before the
parliament. However, they cease to operate when disapproved by the parliament.

3. Laying subject to negative resolution

In this process the rule come into effect as soon as they are laid before the parliament, but
shall cease to have effect if annulled by a resolution of the house.

4. Laying subject to affirmative resolution

This technique takes two forms: firstly, that the rules shall have no effect or force unless
approved by a resolution of each house of parliament. Secondly, that the rules shall cease to
have effect unless approved by an affirmative resolution.

5. Laying in draft subject to negative resolution

Such a provision provides that when any act contains provision for this type of laying the
draft rules be placed on the table of the house and shall come into force after forty days from
the date of laying unless disapproved before that period.

6. Laying in draft subject to affirmative resolution

In this type of laying the instrument or draft rules shall have no effect unless approved by the
house. In India, there is no statutory provision requiring ‘laying of’ of all delegated
legislation. In the absence of any general law in India regulating laying procedure, the
scrutiny committee made the following suggestions:
a. All acts of parliament should uniformly require that rules to be laid on the table of the
house as soon as possible
b. The laying period should uniformly be thirty days from the date of final publication of
rules and
c. The rule will be subject to such modifications as the house may like to make.

Legal consequences of noncompliance with the laying provisions

In India, the laying provision shows the implications of non-compliance is based on whether
the relevant provision in the Act is mandatory or a directory.

INDIRECT CONTROL
Parliament exercises this form of indirect control through its committees. Given the
strengthening of parliamentary control over delegated legislation, scrutiny committees were
established. There are standing committees of parliament in India to scrutinise the delegated
legislation known as Lok Sabha's Subordinate Legislation Committee.

The main functions of the committee are to examine:

• Whether the rules are in accordance with the general object of the Act
• Whether the rule contain any matter which could be more properly be dealt within the
Act
• Whether it contains imposition of tax
• Whether directly or indirectly it bars jurisdiction of the Court
• Whether it is retrospective
• Whether it requires expenditure from the Consolidated Fund
• Whether there has been delay unjustifiably in publication of laying down
• Whether for any reason it requires further elucidation.

2. Procedural Control
It is not possible for the Parliament to exercise effective control over delegated legislation.
Therefore certain procedural safeguards have been provided which are relevant to keep
constant watch over the exercise of this power by the administrative authorities.

1. Drafting:
The drafting of a delegated legislation by an expert draftsman who can advise whether the
proposed rules and regulations are intra vires is a valuable safeguard. The language of rules
should be simple and clear and not complicated or ambiguous.
Caselaw: Daiichi Sankyu Co. Ltd. vs. Jayaram
Held: Object and reason clause must be introduced in delegated legislation so that it helps in
proper interpretation of administrative rule-making.

2. Antenatal Publicity:
• It means delegated legislation may be publicised before it is formally made, and/or
after it is formally made.
• In US, Federal Administrative Procedure Act provides for publication of proposed
rules in the Federal Register. An opportunity is also given to the interested persons to
participate in the administrative rule making so that they can submit their oral and written
submissions on the given law. If the procedure is found to be impracticable, unnecessary or
contrary to public interest, it may also be dispensed.
• In Britain, the law contains no general requirement for antenatal publicity or any right
to hearing. However, in specific cases, the law may provide for antenatal publicity and prior
consultation.
• In India, there is no separate law governing the administrative rule making. The
Parent Act may or may not provide for procedural requirement. However, in some cases the
Parent Acts have provided for antenatal publicity like Sec. 30(3) of the Chartered
Accountants Act and Sec 43 of Co-operative Societies Act. Etc. so that people are aware of
the draft rules and can have their say in it.

3. Consultation with affected persons:

The technique of consultation is another means through which affected interest may
participate in the rule-making process. To facilitate consultation, the device of setting up
advisory or consultative committees is frequently resorted to. These committees enable the
concerned Minister to come in touch with informed opinion before any decision is taken. In
India, a number of statutes prescribe consultation. These provisions fall under the following
heads:

• Official Consultations
The Central Government is required to make rules under S. 52 of the Banking Companies
Act, 1949, after consulting the Reserve Bank of India.

• Consultation with Administrative Boards:

The rule-making powers conferred on the Central Government under various Statutes are
exercisable after consulting the concerned boards.2 Taking into account the composition of
these boards, the provision for consultation affords some opportunity to the afftected interests
to canvass their views and suggestions before the government.

• Consultation with a specialised statutory board:

The Tea Board Act, 1949 makes it obligatory to consult the Tea Board before the government
can frame rules under the Act. This Board is acting as a statutory body which is in-charge of
the entire subject area of tea.

• Consultation with interested persons:

Law authorised municipalities to frame rules for the imposition of tax, but has made it
obligatory to publish the draft rules in Hindi and consult the inhabitants of the area who are to
be affected by such tax.

• Preparation of rules by the affected interests:

In order to ensure safety and acceptability, the Mines Act empowers the owners of Mines to
draft rules themselves for the safety and prevention ofaccidents in mines and submit the draft
rules to the inspector of mines. Such rules become operative after being approved by the
government.

4. Post-natal Publicity:

Post-natal publicity is a necessary element because the principle “ignorance of law is no

excuse” is based on the justification that laws are applicable to the public.
In India, there is no general law which prescribes the mode of publication of the rules.
Therefore, the practice of publication differs from statute to statute.
If the parent Act prescribes a mode of publication, it must be followed. If the Parent Act is
silent, the rules framed by the administrative authority may prescribe a sufficient and
reasonable mode and manner of publication.
• Case: State of Orissa vs. Sridhar Kumar,
Held: Quashed the publication which was made in a local newspaper but not in a local
language. If the provision regarding manner and mode of publication is mandatory, the non-
compliance of the same would render the rules invalid. If the publication is vague due to
which the persons for whom such publication was intended could not properly avail the right
of representation, such a publication is bad in law.

• Case: Harla vs. State of Rajasthan

Held: A law cannot be enforced unless it is published. The rules of natural justice demand
that the laws be published before they are enforced.

• Case: State of Kerala vs. P J Joseph

Held: Govt. of Cochin – authorized – Board of Revenue to sanction extra quota of foreign
liquor on payment of 2% commission. The court was of the view that such authorization does
not have the force of law because the rules were never published.

Judicial Control
Judicial form of control is said to be more effective form of control because the courts have
the power to strike down a law if it is ultra vires to the parent statute or to the Constitution.
The implementation of the procedural form of control is also entrusted to the judiciary who
determine the legality of the subordinate law making process through the rules of procedural
ultra vires.

1. Parent act is Ultra Vires the Constitution

• If the parent statute or the enabling Act is in nonconformity with the Constitution then
the different rules and regulations framed under such statute will also be deemed to be
unconstitutional, if it is in violation with the express or implied limits of the constitution.
• It is necessary that both the Parent statute as well as the delegated legislation should
be in compliance with these express limits of the constitution for the purpose of legal
enforcement.
• The implied limits in the context of delegated legislation has been laid down in the
cases of In Re: Delhi Laws Act case and Harishankar Bagla v State of M.P. wherein it was
acknowledged that legislature can delegate the power of rule making to a subordinate body
after laying down the legislative policy and the general rules of conduct.

2. Delegated Legislation is ultra vires the constitution

• The court may be asked to consider the question of Constitutionality of delegated
legislation itself. The parent statute may be constitutional, but the delegated legislation
emanating there under may be in conflict with some provision of the constitution. In that
case, the delegated legislation will be invalid.
• In Dwarka Prasad Laxmi Narain v State of U.P., a few provisions of the UP Coal
Control Order, 1953, made under S.3(2) of the Essential Supplies Act,1946 were declared
ultra vires as infringing Art.19(1)(g).