Short Essay on Delegated Legislation and Ultra Vires

The delegated legislation will be ultra vires the enabling Act if it is not made in accordance with the procedure prescribed by such Act.

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However, rules become invalid on the ground of noncompliance with the prescribed procedure only if such procedure is mandatory. The mandatory provisions can take three forms, namely:

(a) Consultation with the affected interests or an expert body

(b) Publication of delegated legislation; and

(c) Laying the rules before the legislature.

As regards the consultation with the affected interest, before the making of subordinate legislation, it is regarded as mandatory. In Banwarilal Agarwal v. State of Bihar (AIR 1961, S.C. 849), the Supreme Court held that the provision under the Mines Act, 1952, before framing regulations was mandatory and failure to consult the Mining Boards (Constituted under Section 12 of the Act) invalidated the regulations.

As regards the effect of non-publication of delegated legislation, the courts regard it as void. In Harla v. State of Rajasthan, AIR 1951 S.C. 467th Supreme Court held that the rules of natural justice demanded that a law must be promulgated or published before it was enforced.

Thirdly, it is mandatory to lay the rules before the Legislature. In the Kerala Education Bill 1957, the Supreme Court made an observation that when rules were required to be laid before Parliament after their publication in the Gazette, such rules become operative after they were so laid for the stipulated period.

Some legislators seek to exclude the judicial review of the rules made under a statute. This practice was definitely deplored by the Committee on Ministers’ Powers in England (Cmd. 4060). In India, judicial review is of considerable significance.

The subordinate legislation is not immune from judicial review. The Courts have held that the validity of a rule whether it is declared to have effect as if enacted in the Act or otherwise is always subject to judicial review.

Thus, delegated legislation is of considerable importance in the practice of public administration.

While modern government demands the use of delegated legislation, certain controls are at the same time necessary. In deciding whether or not they are sufficient in any particular case, all the various methods must be considered.

Thus for instance, any pitfalls in legislative control could be compensated for by a practice of consultation, and shortcomings in judicial control remedied by legislative control. There has to be the balance between the resort to delegated legislation and its control.

Whatever its dangers, the fact remains that the easy talk of ‘conspiracy’ and the ‘bureaucracy triumphant’ in which Lord Hewart and Mr. K.C. Allen have indulged, not only shrank to nothing at the first serious analysis, but revealed the more important fact that administrative law is well-settled in the general respect as child to parent, a growing child called upon to relieve the parent of the strain of over-work and capable of attending to minor matters while the parent manages the main business.

In the words of Prof. Laski “there is everything to be said for, and little effective to be said against the process of delegated legislation. Any one who examines the kind of subject-matter with which it deals will find that it saves a good deal of valuable Parliamentary time which can be better used for other matters.

An extension of the list of persons, a change in the schedule of fares for taxi-cabs in London, these, to take typical illustrations of the use of regulatory powers, are not really a threat to our freedom if they are done under suitable safeguards by a body of Ministers, rather than by the House itself.

The vital thing is that Parliament should be in a position to take objection to any use of the power when it deems fit, and that it should be so able to examine what is done in its name as to make it certain that nothing to which objection can be taken escapes from its purview.

That achieved, the system of delegated legislation, which is, in fact, far older that its critics like to make out is an elementary procedural convenience essential to the positive state.”

Whatever may be the objections of the orthodox theorist and the logic of the doctrine of separation of powers, we will have to admit that delegated legislation has become indispensable almost in every country.

So the great question today is not the dispute about the existence of delegated legislation but to examine the consequences flowing from such a system and providing checks and limits on its scope.