Judicial Control over Delegated Legislation

In one line

A court can strike down a rule on two grounds: that the Act which authorised it was bad, or that the rule goes beyond what the Act authorised.

In the words a student can write in an exam: judicial control over delegated legislation operates through the doctrine of ultra vires. A rule is void if the parent Act itself is unconstitutional, whether for want of legislative competence, for violation of a fundamental right or for excessive delegation; and it is void if the rule, though made under a valid Act, is substantively ultra vires because it exceeds the power conferred, is inconsistent with the parent Act or another statute, violates a fundamental right, is unreasonable, is made in bad faith or is unconstitutionally retrospective, or is procedurally ultra vires because a mandatory procedural requirement such as publication or consultation has not been complied with.

The structure of the whole topic

Everything in this chapter fits under one Latin phrase. Ultra vires means "beyond the powers". A rule is valid only if the person who made it had the power to make it and stayed within that power.

That gives the two branches, and every ground below belongs to one of them.

Keep these apart. The commonest error in this topic is to answer a question about a rule by discussing excessive delegation, which is an attack on the Act. See [Excessive Delegation: Permissible and Impermissible Delegation].

Branch 1: the parent Act is invalid

Three grounds, each of which destroys the rules made under the Act.

1. Want of legislative competence. The legislature had no power to legislate on the subject under the Seventh Schedule, or legislated beyond its territory contrary to Article 245.

2. Violation of a fundamental right. The Act itself offends Part III and is void under Article 13(2).

3. Excessive delegation. The Act delegated the essential legislative function or amounted to abdication: In re The Delhi Laws Act, 1912, AIR 1951 SC 332, and Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554, treated in the previous two chapters.

Branch 2: the rule is invalid although the Act is good

This is where most litigation happens, and it divides into substantive and procedural ultra vires.

Substantive ultra vires

1. The rule goes beyond the power conferred. The enabling section allows rules on A, and the rule deals with B. This is the primary ground and it is a pure question of construction: read the enabling section, read the rule, and ask whether the rule falls within the words.