Judicial and Procedural Control Unit 3-
- 1. Judicial Control Over Delegated Legislation Unit 3
- 2. Forms of Judicial Control Substantive Ultra Vires Procedural Ultra Vires
- 3. Substantive Ultra Vires When an Act of legislature enacts in excess of power conferred on the legislature by the Constitution,the legislation is said to be ultra vires the Constitution. On the same principle, when a subordinate legislation goes beyond what the delegate is authorisedto enact, it acts ultra vires. This is known as substantive ultra vires.
- 4. Instances of Substantive Ultra Vires
- 5. Where Parent Act Is Unconstitutional This happens when the delegating statute itself is ultra vires the Constitution and is bad, delegated legislation is necessarily bad. Tan Bug Taim v. Collector of Bombay (AIR 1946) Chintamanrao v. State of M.P. (AIR 1951) Naga People’s Movement of Human Rights v. UOI (1998)
- 6. Where Parent Act Delegates Essential Legislative Functions Who shall perform primary and essential legislative functions? Can the parallel Parliament be established ?
- 7. Where Delegated Legislation Is Inconsistent With The Parent Act Delegated authority must be exercised strictly within the authority of law. Delegated legislation can be held valid only if it conforms exactly to the power granted. United States v. Two hundred Barrels of Whisky Mohd. Yasin v. Town Area Committee (AIR 1952) Indian Council of Legal Aid & Advice v. Bar Council of India (1995) Tahir Hussain v. District Board, Muzaffarnagar (AIR 1954) State of M.P. v. Bhola (2003)
- 8. Where Delegated Legislation Is Inconsistent with General Law A subordinate legislation apart from being intra vires the Constitution and consistent with parent Act, must also be in consonance with general law. Hindustan Times v. State of U.P. (2003) Indravadan H. Shah v. State of Gujarat (1986) Subordinate or delegated legislation made by the executive cannot be contrary to the law of the land.
- 9. Where Delegated Legislation is Unconstitutional Here parent Act may be constitutionalandvalidand delegatedlegislationmay be consistent with parent Act, yet the delegatedlegislationmay be held invalid onthe ground that it contravenesthe provisionsof the Constitution. NarendraKumar v. Union of India (AIR 1960) Dwarka Prasad Laxmi Narainv. State of U.P. (AIR 1954) Air India v. Nargesh Meerza (1981) D. S. Nakra v. Union of India (1983)
- 10. Where The Delegated Legislation Is Arbitrary Article 14 of the Indian Constitution. Nargesh Meerza Case
- 11. Where Delegated Legislation is Unreasonable Indian Express Newspapers (Bombay) (P)Ltd. v. UOI (1985) Nargesh Meerza Case
- 13. Where Delegate Further Delegates Sub-delegation of legislative power. Sub-delegation of judicial power Sub-delegation of administrative power
- 15. Gullapalli Nageswara Rao v. A.P. SRTC (AIR 1959) “No public functionary can himself perform all the duties he is privileged to perform, unaided by agents and delegates, but this from this circumstances it does not follow that he can delegate the exercise of his judgement and discretion to others.” (Mahajan J in Delhi Laws Act, 1912) Sub- delegationof Judicial Power
- 16. Sub-delegation of Administrative Power • Administrative power can be sub-delegated in certain circumstances and on certain conditions
- 17. Where Delegated Legislation Operates Retrospectively Delegated legislation cannot have any retrospective effect unless such power is conferred on the rule- making authority by the parent Act. The legislature can always legislate prospectively as well as retrospectively subject to the provisions of the Constitution. State of M.P. v. Tikamdas (1975) Vijayalakshmi Rice Mills v. State of A.P. (1976)
- 18. Where Delegated Legislation Excludes Judicial Review • Rule of law recognises judicial review of legislative and quasi- legislative acts. • Validity of delegated legislation can be challenged in a court of law. • “shall have effect as if enacted in the Act”, “shall be final”, “shall be conclusive”, “shall not be called in question in any court”, etc.
- 20. Procedural Ultra Vires • Subordinate legislation fails to comply with procedural requirement prescribed by the parent Act or by a general law, it is known as procedural ultra vires. • Requirement as to may be directory or mandatory.
- 21. Requirements as to procedure Publication Consultation
- 22. Publication- object • “Ignorance of law is no excuse.” • Whole of our law is accessible to the public • “Adequate means are adopted to publicise delegated legislation so that people are not caught on the wrong foot in ignorance of the rules applicable to them in a given situation. The system of publication ought to be such that delegated legislation is not only made known to the people, but it is also easy to locate as and when necessary.” (Jain and Jain)
- 23. Publication: Whether Directory or Mandatory Harla v. State of Rajasthan (AIR 1951) Narendra Kumar v. Union of India (AIR 1960) State of Maharashtra v. Mayer Hans George (AIR 1965)
- 24. Publication: Mode Even if requirement of publication is held to be mandatory, the mode and manner of publication may be held to be directory and strict compliance thereof may not be insisted upon. Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur (AIR 1965) Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee (1975)
- 25. Publication: Effect • Once published- delegated legislation- effective from the date of promulgation or publication.
- 26. Publication: Defect Publication of delegated legislation and the mode of publication are two different things. If delegated legislation is not published at all, it will be ineffective and of no consequence. If it is not published in a particular manner, it would not necessarily make the instrument void. (Considered by the Court )
- 27. Omnibus Curative Clause Ganga Clause No act done or proceeding taken shall be called in question merely on the ground of irregularity in such act or proceeding, not affecting merits of the case. B. K. Srinivasan v. State of Karnataka (1987) Anuradha Bhasin v. Union of India (2020)
- 28. Consultation • It is a technique adopted by courts to control exercise of powers by executive • Consultation is a process which requires meeting of minds between the parties to consultation, on material facts, to come to a right consultation.
- 29. Consultation: Object • To check and control the exercise of legislative power by the executive. • Safeguard against misuse of legislative power. • Avoiding clash between department exercising legislative powers and the interest most likely to be affected. (Wade and Philips) • Scope for suggestions and advice. • To put a break on administrative absolutism.
- 30. Contd… • Consultation postulates full and effective deliberation, exchange of view points, meeting of minds and examination of relative merits of the point of view. • it is not complete unless the parties thereto make their respective viewpoints known to others and examine relative merits of their views.
- 31. Consultation: India Official consultation Consultation with statutorybodies Consultation with advisory bodies Draft rules by affected interests
- 32. Consultation: Mandatory or Directory No specific provisions relating to consultation should be held as mandatory or not. Municipal Corpn. of greater Bombay v. New Standard Engg. Co. Ltd. (1991)
- 33. Effect: Failure to Consult T. B. Ibrahim v. RTA (AIR 1953) Hindustan Zinc Ltd. V. A. P. SEB (1991) Banwarilal Agrawalla v. State of Bihar (AIR 1961) UOI v. S.H. Sheth (1977)