A Rule Contrary to the Constitution
Chapter -Five
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 402 to 404 of 430
In one line
A rule is law, so it dies on exactly the same constitutional grounds a statute does, and on some the statute would survive.
In the wording a student can write in an exam: Article 13(3)(a) defines law to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law, so a rule which takes away or abridges a fundamental right is void under Article 13(2); and because subordinate legislation carries no presumption of the legislature's own competence, it may also be attacked on grounds on which a statute could not be.
The proposition and its authority
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515.
Facts. Customs duty on imported newsprint, abolished in 1966, was reimposed and increased by successive notifications and Finance Acts. Newspaper publishers challenged the levy as a burden on the freedom of the press and challenged the exemption notifications made under the Customs Act as arbitrary.
Held. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned, and in addition it may be questioned on the ground that it does not conform to the statute under which it is made, that it is contrary to some other statute, or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14. The Court directed the Government to reconsider the levy in the light of the special position of the press.
Why it matters here. It is the sentence which explains the whole architecture of this module, and it is the authority for saying that a rule is more vulnerable than an Act.
The three constitutional grounds in practice
Article 14. The commonest. A rule which classifies without an intelligible differentia, or which confers an unguided power, or which is manifestly arbitrary.
Air India v. Nergesh Meerza, AIR 1981 SC 1829, is the standard illustration.
Facts. Service regulations of Air India and Indian Airlines required an air hostess to retire at thirty-five, or on marriage if it took place within four years of joining, or on first pregnancy, with the retirement age extendable at the option of the Managing Director.
Held. The bar on marriage within four years and the extension of the retirement age at the unguided option of the Managing Director were struck down, and termination on first pregnancy was held to be manifestly unreasonable and arbitrary. A regulation which leaves an extension entirely to the discretion of an officer, without any guidelines, confers an unguided and uncanalised power and offends Article 14. The classification of air hostesses as a separate cadre was upheld.
A Rule Contrary to the Constitution
Why it matters here. It shows all three vices in one instrument: unguided power, arbitrary condition, and a classification examined and partly upheld.
Article 19. A rule restricting a freedom must satisfy the reasonable restrictions test in clauses (2) to (6), which is a proportionality test.
Article 21. A rule prescribing a procedure which deprives a person of life or personal liberty must be right, just and fair: Maneka Gandhi v. Union of India, AIR 1978 SC 597, and Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, where a regulation permitting termination without notice, reasons or enquiry was struck down as arbitrary and opposed to public policy.
The protection a rule does not get
The Ninth Schedule does not protect it. Ajoy Kumar Banerjee v. Union of India, AIR 1984 SC 1130.
Facts. After the nationalisation of general insurance, schemes framed under section 16(1) of the General Insurance Business (Nationalisation) Act 1972 merged the companies, and a later scheme altered the conditions of service of the employees. It was argued that because the Act was in the Ninth Schedule the scheme too was protected.
Held. The inclusion of an Act in the Ninth Schedule protects the Act; it does not protect an order, notification or scheme made under it, which remains open to challenge on all the ordinary grounds.
Why it matters here. It is the practical answer to a student who thinks the Ninth Schedule ends the argument, and it states the principle that subordinate legislation borrows no immunity from its parent.
And the presumption of constitutionality is weaker. State of Tamil Nadu v. P. Krishnamurthy, AIR 2006 SC 1622, preserves a presumption of validity, but it is the presumption that an authority acted lawfully rather than the deference owed to an elected legislature.
A worked example
A State makes rules under a transport Act providing that no woman shall be granted a licence to drive a heavy goods vehicle, and that a licence may be suspended by the Regional Transport Officer for such period as he thinks fit if he is satisfied that the driver's conduct is unsatisfactory.
The first is a classification on the ground of sex with no differentia rationally related to any object of the Act, so it offends Articles 14 and 15 and, since it bars a livelihood, Article 19(1)(g) as well. The second confers an unguided power with no standard and no maximum, which is Nergesh Meerza. Neither would survive, and neither needs any argument about the parent Act.
A Rule Contrary to the Constitution
What this does NOT mean
It does not mean a rule is presumed bad. The burden is on the challenger: P. Krishnamurthy.
It does not mean a rule may be struck down for being unwise. St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education, AIR 2003 SC 1533.
It does not mean the parent Act saves the rule. A rule within the Act may still violate the Constitution, and then both may fall.
Quick revision
Article 13(3)(a) makes a rule law, so Article 13(2) voids it if it abridges a fundamental right. Indian Express Newspapers: subordinate legislation has no immunity, may be questioned on every ground a statute may be, and in addition for non-conformity with the parent Act, conflict with another statute, and arbitrariness offending Article 14. Nergesh Meerza illustrates unguided power and arbitrary conditions. Ajoy Kumar Banerjee holds that the Ninth Schedule protects the Act and not a scheme made under it.
Test yourself
1. Quote the Indian Express proposition. That subordinate legislation does not carry the same immunity as a statute; it may be questioned on any ground on which plenary legislation may be, and in addition for not conforming to the statute under which it is made, for being contrary to another statute, or for arbitrariness offending Article 14.
2. What was wrong with the extension provision in Nergesh Meerza? It left the extension of an air hostess's service entirely to the option of the Managing Director without guidelines, which is an unguided and uncanalised power offending Article 14.
3. Does the Ninth Schedule protect a scheme made under a protected Act? No. Ajoy Kumar Banerjee holds that the protection attaches to the Act and not to orders, notifications or schemes made under it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.