The Grounds on Which Delegated Legislation Is Void
Chapter -Three
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 396 to 398 of 430
In one line
There are eight grounds on which a rule can be attacked, and every one of them appears on MU's papers.
In the wording a student can write in an exam: delegated legislation may be declared void on the grounds that the parent Act is itself unconstitutional; that the delegation is excessive; that the rule is outside or inconsistent with the parent Act; that it violates the Constitution; that it is manifestly arbitrary or unreasonable; that it is mala fide; that it is retrospective without authority; and that a mandatory procedural condition such as previous publication, consultation, publication or laying was not observed.
MU's question
The University sets this on four of the eight papers, in three forms: the circumstances under which delegated legislation can be declared void in India; the grounds on which delegated legislation is declared invalid and unconstitutional; and the grounds of judicial control over it. So this is the most repeated question in Module IV, and the map is what an examiner is looking for first.
The eight grounds
One, the parent Act is unconstitutional. If the enabling Act falls, everything made under it falls with it, unless the rule is severable and referable to another power.
Two, excessive delegation. The Act conferred the power without laying down a policy: Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554.
Three, the rule is ultra vires the parent Act. Beyond the power, inconsistent with a section, or dealing with a subject the Act did not: Kunj Behari Lal Butail v. State of Himachal Pradesh, AIR 2000 SC 1069.
Four, the rule violates the Constitution. A rule is law under Article 13(3)(a): Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, and Air India v. Nergesh Meerza, AIR 1981 SC 1829.
Five, manifest arbitrariness or unreasonableness. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336.
Six, mala fides.
Seven, retrospectivity without authority.
Eight, non-compliance with a mandatory procedural condition. Previous publication, consultation, publication in the Gazette, or laying where the Act makes it mandatory: Narendra Kumar v. Union of India, AIR 1960 SC 430, and Harla v. State of Rajasthan, AIR 1951 SC 467.
The Indian checklist, from the case an examiner expects
State of Tamil Nadu v. P. Krishnamurthy, AIR 2006 SC 1622.
Facts. Rule 38A of the Tamil Nadu Minor Mineral Concession Rules 1959 terminated all existing leases and permissions to quarry sand on Government land and vested quarrying in the State, notwithstanding any judgment, decree or order of any court. Lessees challenged the rule.
Held. There is a presumption in favour of the validity of subordinate legislation and the burden is on the person attacking it. A rule may be challenged on the grounds of lack of legislative competence to make it; violation of the fundamental rights guaranteed by the Constitution; violation of any provision of the Constitution; failure to conform to the statute under which it is made, or exceeding the limits of authority conferred by the enabling Act; repugnancy to the laws of the land; and manifest arbitrariness or unreasonableness to a degree at which the court might say that the legislature never intended to give authority to make such rules. Where the inconsistency alleged is not with a specific provision of the enabling Act but with its object and scheme, the court should proceed with caution before declaring invalidity.
The Grounds on Which Delegated Legislation Is Void
Why it matters here. It is a modern, compact and quotable list, and it also states the presumption and the burden, which many answers omit.
The distinction from the review of a statute
Indian Express Newspapers states it: a piece of subordinate legislation does not carry the same degree of immunity as a statute passed by a competent legislature; it may be questioned on any ground on which plenary legislation may be questioned, and in addition 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.
That is the single most useful sentence in the module, because it explains why there are eight grounds here and three or four for a statute.
A worked example
A State makes rules under a shops Act requiring every shop to remain closed on one day a week, empowering an inspector to seize goods sold in breach, imposing the requirement from a date three months earlier, and never publishing them in the Gazette.
Four attacks. The closure requirement is probably within the Act and is not unreasonable. The seizure power is ultra vires unless the Act authorises seizure, because a rule cannot create a power the Act did not. The retrospective operation is void unless the Act permits retrospectivity. And the failure to publish is fatal on Harla and, if the Act requires Gazette publication, on Narendra Kumar.
What this does NOT mean
It does not mean the grounds are watertight. A rule outside the Act is often also arbitrary.
It does not mean the burden is on the State. P. Krishnamurthy puts it on the person attacking the rule.
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, upheld regulations and held that courts will not strike a regulation down merely because a different scheme could have been devised.
The Grounds on Which Delegated Legislation Is Void
Quick revision
Eight grounds: the parent Act unconstitutional; excessive delegation; ultra vires the parent Act; violation of the Constitution; manifest arbitrariness or unreasonableness; mala fides; unauthorised retrospectivity; and breach of a mandatory procedural condition. P. Krishnamurthy gives the modern list and states the presumption of validity and the burden on the challenger, with a caution where the inconsistency is with the object and scheme rather than a specific provision. Indian Express Newspapers explains why the list is longer than for a statute.
Test yourself
1. Give the P. Krishnamurthy list. Lack of legislative competence; violation of fundamental rights; violation of any other constitutional provision; failure to conform to the enabling statute or exceeding the authority conferred; repugnancy to the laws of the land; and manifest arbitrariness or unreasonableness.
2. Why can a rule be attacked on more grounds than a statute? Because it does not carry the same immunity: it may be questioned on every ground on which a statute may be, and in addition for non-conformity with its parent Act, for conflict with another statute, and for arbitrariness.
3. Who bears the burden? The person attacking the rule, because there is a presumption in favour of the validity of subordinate legislation.
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.