The Grounds on Which Delegated Legislation Is Void

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.