A Rule Contrary to the Constitution

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.