Judicial Control over Delegated Legislation

2. The rule is inconsistent with the parent Act. A rule cannot contradict the Act under which it is made. If the Act says a licence "shall" be granted to a qualified applicant, a rule saying it "may" be refused on other grounds is void.

3. The rule is inconsistent with another statute. Delegated legislation is subordinate to all primary legislation, not only its own parent.

4. The rule violates a fundamental right. A rule is "law" within Article 13(3)(a), which defines law as including any ordinance, order, bye law, rule, regulation, notification, custom or usage having the force of law. So a rule inconsistent with Part III is void, and the commonest attacks are under Article 14 for arbitrariness or unreasonable classification and Article 19 for unreasonable restrictions.

5. The rule is unreasonable. This ground is well established for bye laws of local authorities, which have long been held void if manifestly unjust, partial, oppressive or made in bad faith. For rules made by a Government the ground is narrower: a rule is not struck down merely because a judge thinks it unwise, but manifest arbitrariness engages Article 14 and produces much the same result.

6. The rule is made in bad faith. Delegated legislation made for a purpose other than that for which the power was given, or to injure a particular person, is void.

7. The rule is retrospective without authority. A rule made under a general power operates prospectively. Retrospective effect requires express authority in the parent Act, because taking away a right already accrued is a legislative act of a higher order.

8. The rule excludes the jurisdiction of the courts. A rule cannot oust judicial review.

9. Sub-delegation without authority. A rule which passes on the rule making power to somebody else, where the parent Act does not permit it, is void: [Forms and Types of Delegated Legislation].

Procedural ultra vires

The parent Act often prescribes steps that must be taken before a rule is made: previous publication of a draft, consultation with a named body or with affected interests, obtaining the sanction of a superior authority, or laying before the legislature.

The question in every case is whether the requirement is mandatory, in which case non-compliance makes the rule void, or directory, in which case substantial compliance suffices. There is no mechanical test. Courts look at the purpose of the requirement, the words used, and the consequences of holding it mandatory.

Publication stands somewhat apart, because a law that has not been published cannot bind those it governs at all.

Facts. Harla v. State of Rajasthan, AIR 1951 SC 467, concerned the Jaipur Opium Act. The Council of Ministers appointed by the Crown Representative for the government of the Jaipur State passed a Resolution in 1923 purporting to enact that Act. It was neither promulgated nor published in the Gazette nor otherwise made known to the public. The Jaipur Laws Act 1923, in force from 1 November 1924, provided that the law to be administered by the courts should include enactments passed by the State and published in the Official Gazette. In 1938 the Opium Act was amended by adding a clause that it should come into force from 1 September 1924. The appellant was convicted under section 7 of it.

Held. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or at least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The mere passing of the Resolution, without publication or promulgation, was not sufficient to make the law operative, so the Jaipur Opium Act was not a valid law. It was not saved by the Jaipur Laws Act 1923, because it was not a valid law in force on 1 November 1924, and adding a clause in 1938 that it should come into force in 1924 was of no use.

Why it matters. It is the Indian authority that publication is a condition of a law becoming operative, and it is the foundation of the publication requirement discussed in [Other Controls: Publication, Consultation and Procedural Safeguards].

What a court will not do

An answer that lists only the grounds of attack misses the other half, which is judicial restraint. Three limits are worth stating.

1. A court does not sit in appeal on the merits of a rule. Whether a fee should be twenty rupees or thirty is not for the court. This is the position stated generally in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: in judicial review the court is not an appellate authority and may not direct or advise the executive on matters of policy.
2. There is a presumption of constitutionality, and the burden lies on the person attacking the rule.
3. Natural justice does not ordinarily apply to rule making, because a rule affects a class and not an identified person: [Classification of Administrative Functions].

A worked example

The Maharashtra Private Coaching Classes (Regulation) Act empowers the State Government to "make rules prescribing the minimum area of premises, the teacher to student ratio and the form of application for a licence". The Government makes these rules. Test each.

Rule 3 prescribes a minimum area of forty square metres. Valid. Squarely within the enabling words.

Rule 4 provides that no licence shall be granted to a person who has been convicted of any offence. Ultra vires. The enabling section permits rules on area, ratio and form, and says nothing about disqualification. The Government has legislated on a subject not delegated to it.

Rule 5 provides that a licence may be cancelled without notice. Two grounds. It is inconsistent with the scheme of the Act if the Act provides for cancellation after inquiry, and it offends natural justice and Article 14 by excluding a hearing before an order affecting an identified person: [Audi Alteram Partem].

Rule 6 provides that the rules shall be deemed to have come into force two years ago, and that licences granted in that period are cancelled. Ultra vires, because retrospective operation requires express authority in the parent Act, and this Act gives none.

Rule 7 provides that the Commissioner may by circular vary the minimum area. Ultra vires as sub-delegation, because the Act gave the rule making power to the State Government and did not authorise it to be passed on.

Rule 8 is made without publishing a draft, although the Act says rules shall be made "after previous publication". Procedurally ultra vires if the requirement is mandatory, which a requirement of previous publication ordinarily is, since its purpose is to let affected persons object.

One enabling section, six defective rules, six different grounds. That is the shape of a problem question on this topic.

Distinctions worth having straight

What it does NOT mean

It does not mean a court can strike down a rule because it disagrees with it. The grounds are legality, not merit.

It does not mean unreasonableness is a general ground against all rules. It is settled for bye laws; for Government rules it operates mainly through Article 14.

It does not mean a rule is safe because the Act is valid. The two questions are separate and the second is the one most often decisive.

Quick revision

1. The doctrine is ultra vires, and it has two branches: the Act is bad, or the rule is bad.
2. Act bad: want of legislative competence; violation of a fundamental right; excessive delegation.
3. Rule substantively bad: beyond the enabling words; inconsistent with the parent Act; inconsistent with another statute; violates a fundamental right, a rule being "law" under Article 13(3)(a); unreasonable, settled for bye laws; mala fide; retrospective without authority; ousts the courts; unauthorised sub-delegation.
4. Rule procedurally bad: a mandatory requirement of previous publication, consultation or sanction not complied with. Mandatory or directory is decided by purpose, words and consequences.
5. Harla v. State of Rajasthan, AIR 1951 SC 467: publication or promulgation is necessary before a law becomes operative.
6. Limits on the court: no appeal on merits, a presumption of constitutionality, and natural justice does not ordinarily apply to rule making. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Test yourself

1. Discuss judicial control over delegated legislation. Judicial control operates through the doctrine of ultra vires, which has two branches. First, the parent Act may itself be invalid, for want of legislative competence, for violation of a fundamental right, or for excessive delegation of the essential legislative function; if so, the rules made under it fall with it. Second, the rule may be invalid although the Act is valid. Substantively, a rule is void if it goes beyond the words of the enabling section, is inconsistent with the parent Act or with another statute, violates a fundamental right, since a rule is "law" within Article 13(3)(a), is unreasonable, is made in bad faith, is retrospective without express authority, ousts the jurisdiction of the courts, or sub-delegates without authority. Procedurally, a rule is void if a mandatory requirement such as previous publication or consultation has not been complied with. The court does not sit in appeal on the merits, presumes constitutionality, and does not ordinarily require a hearing before rules are made.

2. What is meant by procedural ultra vires? When does non-compliance invalidate a rule? Procedural ultra vires arises where the parent Act prescribes steps to be taken before a rule is made, such as previous publication of a draft, consultation with a named body or with affected interests, or the sanction of a superior authority, and those steps are not taken. Whether non-compliance invalidates the rule depends on whether the requirement is mandatory or directory, which is decided by looking at the purpose of the requirement, the language used and the consequences of holding it mandatory. A requirement of previous publication, whose purpose is to allow affected persons to object, is ordinarily mandatory.

3. Is publication necessary for delegated legislation to take effect? Yes in substance. Harla v. State of Rajasthan, AIR 1951 SC 467, held that before a law can become operative it must be promulgated or published, and broadcast in some recognisable way so that all may know what it is, or there must at least be a customary channel through which knowledge can be obtained with due and reasonable diligence. A resolution enacting the Jaipur Opium Act which was never published was accordingly not a valid law, and a later clause purporting to give it retrospective commencement did not save it.

4. Can a rule be struck down for unreasonableness? For bye laws made by local authorities the ground is well established: a bye law is void if it is manifestly unjust, partial, oppressive or made in bad faith. For rules made by a Government the ground is narrower, and a court will not strike a rule down merely because it thinks it unwise; but manifest arbitrariness attracts Article 14, and a restriction that is disproportionate attracts Article 19, so the result is often reached by the constitutional route rather than by a free standing test of reasonableness.

5. A rule made under a valid Act provides that it shall have effect from a date two years before it was made. Is it valid? Ordinarily not. Delegated legislation made under a general rule making power operates prospectively, and retrospective effect requires express authority in the parent Act, because giving a rule retrospective operation takes away rights already accrued and is a legislative act of a higher order than filling in detail. If the Act contains no such authority the rule is substantively ultra vires to the extent of its retrospectivity.