Judicial Control Over Delegated Legislation ( BLOG I PLEADERS)

Introduction

According to M.P. Jain, “ the term is used in two different senses:

 to exercise the legislative power by subordinate agents, or

 the subsidiary rules themselves which are made by the subordinate authority in pursuance
of the powers conferred on it by the legislature”.

Delegated legislation is generally a type of law made by the executive authority as per the powers
conferred to them by the primary authority in order to execute, implement and administer the
requirements of the primary authority. It can be said that it is the law made by any person or
authority under the power of parliament. It is also known as subordinate legislation in administrative
law. It allows the bodies beneath the primary authority or legislature to make laws according to the
requirement. Through an act of Parliament, Parliament has full authority to permit any person or
authority to make legislation. An act of parliament creates a framework of a particular law which
tends to be an outline of the purpose for which it is created. The important object of this is that any
legislation by such delegation should be according to the purposes as laid down in the act.

The main feature is that it allows the state government to amend the laws if there is any need
without delaying for the new act to be passed by the Parliament. If there is any requirement then
sanctions can also be altered by the delegated legislation as the technology changes. It is believed
that when such authority is delegated by the Parliament to any person or authority it enables such
person or the authority to provide more detail to the act of the Parliament.

For example, the local authority has power conferred by the superior one to make or amend laws
according to the requirement of their respective areas. The delegated legislation plays a very
important role as the number of them are more than the acts of the Parliament. It has the same legal
standing as the act of Parliament from which it is created.

There are three forms of delegated legislation i.e., statutory instrument, orders in council and by-
laws.

Statutory instruments

They are the one which is formed by the government. For example – a parent act is an act which
permits the parliament for making the law. Orders in the council are generally made by the
government when there is a need and it can affect the public at large as well as an individual.

By-Laws

They are created by the local authority which is approved by the Central Government. There are
many reasons for the delegation of the legislature. The parliament does not have that much time to
deliberate and debate about every topic. Therefore, delegated legislation helps in making laws
rapidly than the Parliament and the procedure of the Parliament is also very slow as the bills for
every law needs to pass from every stage. Further, it is also believed that the Member of Parliament
does not possess the technical ability which is required to make law.
For example – making any law regarding taxation requires knowledge as well as experience which
can be done by the person who is professional in that field. In the case of welfare purpose, the local
authority can understand the needs of the people in his area more effectively than others. The
democratic bodies have many important powers for the delegated legislation which can be easily
used for updating the legislation according to the requirement which leads to social welfare.

But there should be control over delegated legislation. Delegated legislation is controlled by the
Parliament and the Judiciary. Parliament has the overall control over the delegated legislation as it
takes account with the statutory committees which make law through bills. The main object of
parliamentary control is to look that there is no abuse or unnecessary use of the powers given to
rulemaking authorities.

Cases

In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the
provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any rules
framed under the Act must be presented before both the houses of the Parliament.
Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented in the
Parliament.

There are a number of rules in the area of judicial control over the delegation of legislation which is
laid down by the judiciary.

In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and should
not suffer from any unreasonableness.

Delegated legislation should protect the rule of law and there should be no arbitrariness. Rules
framed which violates the Parent Act are illegal. Rules framed which violates any other statute
should also be considered as void. Delegated legislation made with mala fide intention is also
considered illegal.

To have a better understanding please go through the attached PowerPoint Presentation. It has a
better version of explanation about the Control Mechanism of Delegated Legislation.

Factors responsible for the rapid growth of Delegated Legislation

 Pressure on Parliament – The number of activities in states is expanding which requires law
and it is not possible for the Parliament to devote sufficient time to every matter. Therefore
for this, the Parliament has made certain policies which allows the executives to make laws
accordingly.

 Technicality – Sometimes there are certain subject matters which requires technicality for
which there is a requirement of the experts who are professional in such fields and members
of Parliament are not experts for such matters. Therefore, here such powers are given to
experts to deal with such technical problems like gas, atomic, energy, drugs, etc.

 Flexibility – It is not possible for the Parliament to look after each contingency while passing
an enactment and for this certain provisions are required to be added. But the process of
amendment is very slow as well as the cumbersome process. Thus, the process of delegated
 legislation helps the executive authority to make laws according to the situation. In the case
of bank rate, policy regulation, etc., they help a lot in forming the law.

 Emergency – At the time of emergency, it is not possible for the legislative to provide an
urgent solution to meet the situation. In such case delegated legislation is the only remedy
available. Therefore, in the times of war or other national emergencies, the executives are
vested with more powers to deal with the situation.

 The complexity of modern administration – With the increasing complexity in modern

administration and the functions of the state being expanded and rendered to economic and
social spheres too, there is a need to shift to new reforms and providing more powers to
different authorities on some specific and suitable occasions. In a country like Bangladesh,
where control over private trade, business or property may be needed to be imposed, and
for implementation of such a policy so that immediate actions can be taken, it is needed to
provide the administration with enough power.

And so, therefore for immediate and suitable actions to be taken there has been an immense growth
of delegated legislation in every country and being that important and useful it becomes a non-
separable part in the modern administrative era.

Advantages of Delegated Legislation

 Save time for the legislature.

 Allow for flexibility.

 Expert opinion is required in legislation.

 Parliament is not always present in the session.

 Used as an experimental basis.

 It is restored to use it in a situation of emergency.

 Can be easily Settle down with consulting the required party of the case.

Criticism of Delegated Legislation

 It has a long duration of bearing for legislative control because the legislature is the supreme
organ of the state as it consists of three main organs which are: Judiciary, Legislative and
Executive.

 All of them have to work with or in relation to each other and it should be done in a
balanced way on the basis of power given to each organ for working effectively. Instead of
various advantages, delegated legislation has weakened the legislative control executive.

 The executive has become stronger with delegated legislation, it can easily encroach the
rules and regulation of legislation by making rules.

 This concept opposes the rule of Separation of Power.

 Lack of relevant discussion before framing the law.

 It is not in acceptance with the principle of rule of law.

 It is not stable in nature, it keeps on fluctuating on the ground of Political changes.

Classification of Delegated Legislation

Power to bring Act into Action As it is already given that in a specified date this Act will come into
force prescribed by Central or State Government by giving a notice in the Official Gazette.

In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to bring the
Act into force and it should not be excessive in delegated power of legislation. So, here the court
rejected the contention that the power was excessive in nature as per prescribed. It was practically
difficult for enforcement. Therefore, power is given to the executive authority to decide the date of
enforcing the act.

Conditional Legislation the rules are framed or designed by the legislature but to implement or
enforce it, is done by the executive organ, so executive has to look that what all conditions need to
be fulfilled to bring it in operation. If all conditions are satisfied then it is well and good otherwise
notice will be issued to bring the law into operation and it is known as Conditional Legislation.

Click Above

Condition legislation is of following types

 Power to bring the act into action.

 Power to extend the time period or life of the act.

 Power to extend the application of the act to any territory and to make restriction or make
an alteration in the act itself.

 Exempt the operation on certain ground or subjects of territories.

Power to fill in the blanks of the format – A rough format is prepared by the legislature and pass on
to the executive to fill up with all the necessary blanks or elements needed by the subordinate
legislation.

Power face in removing difficulties – Power to modify the statute maybe given to the government
by removal of difficulties clause.

Control of Delegated Legislation

There are three kinds of Control given under Delegated Legislation:

1. Parliamentary or Legislative Control

2. Judicial Control

3. Executive or Administrative Control

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only the
right but the duty of the legislature to look upon its agent, how they are working.

It is a fact that due to a delegation of power and general standards of control, the judicial control has
diminished and shrunk its area.

In India “Parliamentary control” is an inherent constitutional function because the executive is

responsible to the legislature at two stages of control.
 1. Initial stage

2. Direct and Indirect stage

In the Initial stage, it is to decide how much power is required to be delegated for completing the
particular task, and it also observed that delegation of power is valid or not.

Now, the second stage consists of two different parts.

1. Direct control

2. Indirect control

Direct control

Laying is an important and essential aspect under direct control and it is laid down as per the
requirement which means that after making the rule it should be placed before the Parliament. It
includes three important part as per the degree of control needs to be exercised.

1. Simple Laying

2. Negative Laying

3. Affirmative Laying

And “test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into impact
then in such a case laying need is mandatory.

Where the provision is mentioned that the rules should be drafted in a particular format then it
becomes mandatory to follow the format.

Test of Directory – Where the laying need is next to enforce the rule into operation then it will be
directory in nature.

Indirect control

This is a control exercised by Parliament and its committees. Another name for such type of
committee is Subordinate legislation. The main work of the committee is to examine

1. Whether rule are according to general object of the act.

2. It bars the jurisdiction of the court in direct or indirect ways.

3. Whether it has retrospective effect or not.

4. Whether it safeguard or destroy the Principle of Natural Justice.

5. Expenditure involved in it is from Consolidated fund.

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the executive to
follow certain rules or procedure.

To follow a particular format it may take a long time which will definitely defeat the actual objective
of the act. Hence, procedural control means that under Parent act certain guidelines are given which
need to be followed while whether it is mandatory or directory to follow it or not. It includes three
components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.

3. Laying of rules.

It can be either Mandatory or Directory, to know, certain specified parameters are given:

1. Scheme of the Act.

2. Intention of Legislature.

3. Language used for drafting purpose.

4. Inconvenience caused to the public at large scale.

And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur Municipal
Council.

Judicial Control

Judicial review upgraded the rule of law. The court has to see that the power delegated is within the
ambit of the constitution as prescribed. Judicial review is more effective because court do not
recommend but it clearly strikes down the rule which is ultra vires in nature. As per Section 13(3)(a)
“Law” is defined under the Constitution of India which clearly indicate that State should not make
any law which abridge the right given in Part iii of the Constitution. It is dependent on two basic
grounds:

1. It is ultra vires to the Constitution of India, and

2. It is ultra vires to the enabling Act.

Conclusion

If in India, Parliamentary control overlaps the delegated legislation then it is mandatory that the
committee of parliament need to be strong enough and separate laws should be made and passed
which give a uniform rule for laying down and publication purposes. A committee must contain a
special body to look on the delegated work whether it’s going in the right direction and effectively or
not. All the three organs should focus on their work and do not interrupt unnecessarily to prevent
chaos in the system.
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This article examines the principle of delegation. legislation and its control. Delegation is the process
by which legislative authority is transferred from the legislature to the executive branch or other
entities. This transfer of authority enables the creation of laws and regulations that effectively
address specific and technical challenges.

However, concerns about possible abuse of this authority and the lack of democratic accountability
in the process arise. The main benefit is that it allows the state government to amend laws as
needed without waiting for the new act to be passed by Parliament. If there is a requirement, then
sanctions can be changed by delegated legislation as technology evolves.

It is believed that when such authority is delegated by the Parliament to any person or authority,
such person or authority is able to provide more detail to the Parliament's act. Thus, delegated
legislation must be legitimate and accountable, necessitating strong control systems.

Control Mechanism
There are numerous reasons for instituting a control mechanism for delegated legislation, including
the following: it ensures transparency and accountability in the legislative process. Delegated
legislation delegated significant authority to executive or subordinate agencies to implement laws
without the involvement of the legislature. Without adequate checks and balances, these authorities
may abuse the authority bestowed upon them.

The implementation of control mechanisms, such as parliamentary control or judicial review, allows
for a check on these powers, ensuring that the delegated law stays within the limits of its authority
and serves the public good.

Control mechanisms act as safeguards to ensure that the delegated law does not violate any
individual's rights and freedoms or exceeds the scope of its original purpose. This mechanism aids in
the preservation of the rule of law.

Judicial Control Over Delegated Legislation

The need to delegate diverse discretionary powers to the administration necessitates the
development of procedures to control their usage in order to prevent abuse. Montesquieu is
generally credited with devising a system of checks and balances based on a broad division of
governmental functions into three categories: legislative functions, which concern the making of
laws, administrative functions, which concern the execution of laws, and judicial functions, which
concern the application of laws after facts have been correctly ascertained. To avoid misuse or non-
exercise of power by the government or executive organ, judicial control of administrative power is
essential.
Although there are no particular provisions in the Indian Constitution containing this unbending
separation of powers on the American model, it is widely believed that such a separation of
functions exists in our Constitution in a broad sense[1]. One of the fundamental rules that our
judiciary must follow while exerting control is that it must never consider the decision's merits but
must instead judge on its legality. The judiciary will have to interfere in the exercise of discretionary
authority for judicial control administrative discretion on a variety of grounds[2].

Among these grounds are:

1. Abuse of discretionary power: When authority is given discretionary power, it must be

exercised in line with the law. As he phrased it, "when the mode of exercising a valid power is
improper or unreasonable, there is an abuse of power." Certain circumstances can be used
to infer misuse or excess of discretionary power. Acting without jurisdiction, exceeding
jurisdiction, arbitrary action, mala fide actions, wrong purpose, unreasonableness, non-
observance of natural justice norms, and so on are examples.

2. Non-exercise of discretion: Administrative discretion is subject to judicial oversight because it

is not exercised.

a. When the authority delegated authority to a subordinate without legal

authorization, or

b. When someone acts on the orders of superiors without statutory authority.

3. When a statute bestows discretionary power on an administrative authority but does not
specifically provide delegation of such power, discretion must be exercised only by the
authority given with such power. Any subsequent delegation of such power to a subordinate
or other authority will be a blatant violation of the principle, delegatus non protest delegare,
which states that a delegatee cannot delegate further. The House of Lords overturned a
registered dock worker's dismissal in Vine v. National Dock Labour Board[3] on the grounds
that, rather than deciding the case itself, the Dock Labour Board on which the power was
conferred had instead delegated the entire subject to a disciplinary committee.

Delegated legislation may be declared invalid for any of the following reasons[4]:

i. The enabling Act is unconstitutional: Any statute that violates the Constitution is
unconstitutional. The constitutional restriction that has thus been violated may impact the
Legislature's competence to make such law or may simply function as a check on the power
that is within its competence. There is a limit to how far delegation can go. Legislative
essential powers shall not be ceded.

ii. Subordinate law in violation of the Constitution: In some cases, the enabling Act may not be
in violation of the Constitution, but the subordinate legislation may be. Principles governing
the constitutional legitimacy of legislation originating in Parliament will likewise apply in
establishing the validity of a subordinate law. The Act is not to be rejected if a rule created
 under the enabling Act is determined to be ultra vires because it violates constitutional
provisions. Only the violating regulation will be repealed[5].

iii. Infringement of the delegating Act by subordinate legislation: The limits of delegation limit
the delegated power. If the rules do not fall within the scope of the Legislature's powers,
they may be challenged as ultra vires. As a result, the subordinate delegation must not be
contrary to or in contradiction with the delegating Act.

Conclusion
Delegated legislation is permitted by the Indian Constitution. It exists in form of bye-rules,
regulations, orders, bye laws etc. Modern legislation requires technicality and expert knowledge of
problems of various fields, our legislators, who are politicians are not expected to have such
knowledge. Subordinate legislations are more flexible, quickly and easily amendable and revocable
than ordinary legislation, in case of failure or defect in its application.

In order to ensure that the power of delegated legislation is not misused in the hands of executive it
is necessary to adopt effective modes of control. The judicial control of delegated legislation in India
is complete. The constitutional position of judiciary is such that its right to examine legislation,
whether emanating directly from Parliament or from subordinate authorities, cannot be barred. A
law purporting to confer the statutory finality on subordinate legislation would not bind the court.

End-Notes:

1. In re. Delhi Laws Act A.I.R., 1951, S.C. 332.

2. N.K. Jayakumar, Limits of Judicial Activism vis-a-vis Administrative Discretion: A Preliminary

Inquiry, 26 Journal of Indian Law Institute 55, 56 (1984).

3. (1957) A.C. 488.

4. V.N. Shukla, Judicial Control of Delegated Legislation in India, 3 Journal of the Indian Law
Institute 357, 359 – 364 (1959).

5. A.I.R. 1952 Nag. 58.

Judicial control of delegated legislation (https://www.defactolaw.in/post/jud)

is a critical aspect of maintaining the rule of law. It ensures that the powers conferred upon
administrative authorities are exercised within the bounds of the enabling Act and the Constitution.

This control is exercised through judicial review, which can strike down any rule that is ultra vires the
enabling Act or the Constitution. In India, judicial review of delegated legislation is subject to the
normal rules governing the review of administrative action, with certain exceptions.

Unlike administrative actions, subordinate legislation cannot be challenged on the ground of

violation of the principles of natural justice.

However, this gap is filled when such legislation is challenged on the grounds of unreasonableness
and arbitrariness under Articles 14 and 19 of the Constitution.

Grounds for Judicial Review

Judicial review of delegated legislation can be invoked on several grounds, including:

1. Ultra Vires the Constitution: The enabling Act itself may be ultra vires the Constitution if it
violates either the implied or express limits of the Constitution. For instance, the legislature
cannot delegate its essential power, as established in Re Delhi's case. Additionally, the
enabling Act must not violate the scheme of distribution of power given in the Constitution
or the provisions of Part III, which encompasses fundamental rights.

1. Ultra Vires the Enabling Act: Even if the enabling Act is intra vires, the constitutionality of the
delegated legislation can still be challenged. In Narendra Kumar v Union of India (AIR 1960
SC 430), the court held that the law cannot be presumed to authorize anything
unconstitutional. The case involved a challenge to the Essential Commodities Act, 1955,
where the court emphasized that delegated legislation must conform to the Constitution.

2. Substantive Ultra Vires: This occurs when delegated legislation exceeds the scope of
authority conferred by the enabling Act or conflicts with the delegating statute. The
efficiency of judicial review in such cases depends on the terms in which power is conferred
on the executive and the width of substantive statutory provisions. For example, in Dwarka
 Nath v Municipal Corp. (AIR 1971 SC 1844), the Supreme Court held Rule 32 under the
Prevention of Food Adulteration Act, 1954, as ultra vires because it exceeded the power
conferred by the Act. The Act authorized the government to restrict the packing and labeling
of any food article to prevent the public from being misled as to the quantity and quality of
the article. Rule 32, however, required the name and business address of the manufacturer
to be specified on every label, which the court found to be beyond the scope of the enabling
Act.

3. Procedural Ultra Vires: In the making of delegated legislation the authority may be required
by statute to follow certain procedures like pre-publication, consultation,publication, laying,
etc. Rules become invalid on the ground of noncompliance with the prescribed procedure
only if such procedure is mandatory. Non-compliance with the directory provisions does not
render them invalid. As the courts would not quash delegated legislation when only
directory, procedural norms are ignored by the rule-making authority.

In Raza Buland Sugar Co. case, the Supreme Court spelt out the judicial technique for determining
whether a provision was mandatory or directory. The question whether a particular provision of a
statute is mandatory or directory depends upon the facts of each case and for that purpose the
object of the statute in making the provision is the determining factor. The following four tests are
important to determine the question of procedural ultra vires: Purpose of the Act; Intention of the
legislature to make it (i.e. procedure) directory or mandatory; Inconvenience caused to the parties
(e.g. when rules not published in prescribed manner); and, the language of the provision in the Act.

1. Unreasonableness, Arbitrariness, and Discrimination: Delegated legislation can be

challenged if it is unreasonable, arbitrary, or discriminatory, thus violating Articles 14 and 19
of the Constitution. For instance, in Air India v Nargesh Meerza (AIR 1981 SC 1829), the
court quashed a service regulation that terminated the services of an air hostess on the first
pregnancy, deeming it violative of Article 14. The court found the regulation to be
discriminatory and arbitrary, as it imposed an unreasonable restriction on the employment
of women.

2. Mala Fide: Administrative rule-making can be challenged on the ground of bad faith or
ulterior purpose. For example, the Bombay High Court invalidated a rule under the Drug and
Cosmetics Act, 1940, which required manufacturers of eau de cologne to add a poisonous
substance to render the product non-potable, as it was deemed an attempt to enforce
prohibition policy under the guise of prescribing standards.

Cases Law on Judicial Control

Several landmark cases illustrate the application of judicial control over delegated legislation:

 Dwarka Prasad v State of U.P. (AIR 1954 SC 224): The court held a rule under the U.P. Coal
Control Order as ultra vires Article 19(1)(g) because it placed unreasonable restrictions by
giving arbitrary powers to the executive in granting exemptions. The rule allowed the State
coal controller to exempt any person from the license requirements, which the court found
to be an excessive delegation of power and an unreasonable restriction on the right to carry
on any occupation, trade, or business.

 Ibrahim v Regional Transport Authority (AIR 1953 SC 79): The court declared rules for fixing
bus stand sites as invalid, being in excess of the power conferred by the enabling Act. The
 enabling Act authorized the agency to make rules for the "control of transport vehicles," but
the court found that the rules for fixing bus stand sites went beyond this authorization.

 State of Karnataka v Ganesh Kamath (AIR 1983 SC 550): The court struck down Rule 5(2) as
being inconsistent with the enabling Act. This rule provided that even though a person has
passed the test for driving heavy motor vehicles, he cannot obtain a license unless he had
already possessed a license for and had two years' experience driving a medium motor
vehicle. The court found this rule to be in direct conflict with Section 7(7)(a) of the enabling
Motor Vehicles Act, 1939, which provided that a person who passes the test in driving a
heavy vehicle is to be deemed also to have passed the test in driving any medium vehicle.

 Air India v Nargesh Meerza (AIR 1981 SC 1829): The court quashed a service regulation that
was discriminatory and violative of Article 14. The regulation provided for the termination of
services of an air hostess on the first pregnancy, which the court found to be an
unreasonable and arbitrary restriction on the employment of women.

 W.B. State Electricity Board v Desk Bandhu Ghosh (AIR 1985 SC 722): The Supreme Court
quashed a regulation that allowed arbitrary termination of services, deeming it
unreasonable. Regulation 34 of the W.B.E.B’s Regulations provided that the services of a
permanent employee could be terminated by serving three months' notice or on payment of
three months' salary in lieu of the notice. The court found this regulation to be arbitrary and
an unreasonable exercise of power.

Cases Where Delegated Legislation Was Upheld

Not all challenges to delegated legislation result in invalidation. Some rules have been upheld as intra
vires the enabling Act:

 L.M. Sundaram v Director of Legal Studies (AIR 1981 Mad. 198): The rules of the Bar Council
of India prescribing standards for legal education were upheld. The rules required that for
admission to the Bar, a person should have obtained a law degree after undergoing a regular
course of three years and should have attended at least 60% of the classes in each subject.
The court found that the expression "to lay down standards of such education" in Section
7(1)(h) of the Advocates Act, 1961, was capable of encompassing every ingredient necessary
to constitute the end or ultimate level of education expected of a candidate applying for
enrollment as an advocate.

 Meenakshi Bhandari v Delhi University (AIR 1983 Del. 104): A rule prescribing percentage
marks for admission to a law degree course was upheld. The court found that the Bar
Council's power to lay down standards of legal education through rules included the
authority to prescribe minimum qualifying marks for admission.

 Ajay Canu v Union of India (1988) 4 SCC 156: A rule mandating the compulsory wearing of
crash-helmets by drivers of two-wheelers was upheld. The court found that the rule was
within the rule-making power delegated by the Motor Vehicles Act, which aimed to ensure
the safety of drivers and the public.

Vital Mechanism

Judicial control of delegated legislation is a vital mechanism to ensure that administrative authorities
do not exceed their powers and that the rule of law is upheld. Through judicial review, courts can
strike down rules that are ultra vires the enabling Act or the Constitution, thereby maintaining a
balance between administrative efficiency and constitutional propriety.

This control is exercised on various grounds, including substantive and procedural ultra vires,
unreasonableness, arbitrariness, discrimination, and mala fide intentions. The judiciary's role in this
regard is indispensable in safeguarding the rights and liberties of individuals against potential
overreach by administrative authorities

Significance of Judicial Control

This control is primarily exercised through judicial review, which can invalidate any rule that is ultra
vires the enabling Act or the Constitution. In India, judicial review of delegated legislation follows the
normal rules governing the review of administrative actions, with some exceptions. Unlike
administrative actions, subordinate legislation cannot be challenged on the grounds of violating the
principles of natural justice. However, this gap is addressed when such legislation is challenged on
the grounds of unreasonableness and arbitrariness under Articles 14 and 19 of the Constitution.

Ensuring Constitutional Compliance

One of the primary significances of judicial control is to ensure that delegated legislation complies
with the Constitution. The judiciary acts as a guardian of the Constitution, ensuring that any
delegated legislation does not violate constitutional provisions, including fundamental rights. For
instance, in Narendra Kumar v Union of India (AIR 1960 SC 430), the court held that even if the
enabling Act is intra vires, the constitutionality of delegated legislation can still be considered
because the law cannot be presumed to authorize anything unconstitutional.

Preventing Abuse of Power

Judicial control prevents the abuse of power by administrative authorities. By reviewing delegated
legislation, courts ensure that administrative authorities do not exceed the powers conferred upon
them by the enabling Act. This is crucial in maintaining a balance between administrative efficiency
and the protection of individual rights. For example, in Dwarka Prasad v State of U.P. (AIR 1954 SC
224), the court held a rule under the U.P. Coal Control Order as ultra vires Article 19(1)(g) because it
placed unreasonable restrictions by giving arbitrary powers to the executive in granting exemptions.

Upholding the Rule of Law

Judicial control upholds the rule of law by ensuring that all actions taken by administrative
authorities are within the legal framework. This prevents arbitrary and capricious actions by the
executive, thereby protecting the rights and liberties of individuals. In Air India v Nargesh Meerza
(AIR 1981 SC 1829), the court quashed a service regulation that terminated the services of an air
hostess on the first pregnancy, deeming it violative of Article 14. The court found the regulation to be
discriminatory and arbitrary, as it imposed an unreasonable restriction on the employment of
women.

Ensuring Reasonableness and Fairness

Judicial control ensures that delegated legislation is reasonable and fair. Courts review delegated
legislation to ensure that it is not arbitrary, discriminatory, or unreasonable. This is particularly
important in protecting the rights of individuals against unjust administrative actions. In W.B. State
Electricity Board v Desk Bandhu Ghosh (AIR 1985 SC 722), the Supreme Court quashed a regulation
that allowed arbitrary termination of services, deeming it unreasonable. Regulation 34 of the
W.B.E.B’s Regulations provided that the services of a permanent employee could be terminated by
serving three months' notice or on payment of three months' salary in lieu of the notice. The court
found this regulation to be arbitrary and an unreasonable exercise of power.

Maintaining Legislative Intent

Judicial control ensures that delegated legislation aligns with the intent of the legislature. Courts
review delegated legislation to ensure that it does not go beyond the scope of the authority
conferred by the enabling Act. This maintains the integrity of the legislative process and ensures that
administrative authorities do not usurp legislative functions. In State of Karnataka v Ganesh Kamath
(AIR 1983 SC 550), the court struck down Rule 5(2) as being inconsistent with the enabling Act. This
rule provided that even though a person has passed the test for driving heavy motor vehicles, he
cannot obtain a license unless he had already possessed a license for and had two years' experience
driving a medium motor vehicle. The court found this rule to be in direct conflict with Section 7(7)(a)
of the enabling Motor Vehicles Act, 1939, which provided that a person who passes the test in
driving a heavy vehicle is to be deemed also to have passed the test in driving any medium vehicle.

Protecting Public Interest

Judicial control protects public interest by ensuring that delegated legislation serves the public good
and does not harm the interests of the community. Courts review delegated legislation to ensure
that it is not enacted for ulterior motives or bad faith. For example, the Bombay High Court
invalidated a rule under the Drug and Cosmetics Act, 1940, which required manufacturers of eau de
cologne to add a poisonous substance to render the product non-potable, as it was deemed an
attempt to enforce prohibition policy under the guise of prescribing standards.
Exclusion of judicial review (https://blog.ipleaders.in/all-about-judicial-
review/#Exclusion_of_judicial_review)
Meaning of exclusion of judicial review

Exclusion of judicial review refers to those circumstances wherein the powers of the high courts and
the Supreme Court to exercise writs are excluded. It can be said to be the restrictions/limitations
imposed on the power of the courts to review the actions of a public body (including the executive
and the legislature).

How is the exclusion of judicial review carried out?

The exclusion of judicial review is carried out by Article 74(2) of the Constitution of India, and then
there is the ouster clause. The ouster clause has provisions that do not provide for appeals or
revision. It makes the judgement or act of the authority to be final and binding. This clause also avers
that once an order is passed, it may not be called upon for questioning in any court. Thus, it may
exclude the jurisdiction of the court entirely.

Indian scenario on the exclusion of judicial review

The position of India on matters of judicial exclusion is quite similar to that of the United States.
There is a charter of fundamental rights guaranteed under the Constitution in written format, and
such rights can be reduced by the theory of administrative finality.

In India, all three organs of the state, i.e., the legislature, the executive, and the judiciary, obtain
power from the written Constitution, and the organs must act within the limitations of such powers.

Constitution of India (COI) and the exclusion of judicial review

The judiciary has been allotted the task of ascertaining what powers are conferred on which branch
of the government, thus being the interpreter of the Constitution. It is also presented with the power
of judicial review under Articles 32 and 226, which is not only an important part of the Constitution
but also its basic structure, as held in the case of SP Sampath Kumar vs. UOI (1987) by Justice
Bhagwati, relying on the Minerva Mills case.

A note must be taken that despite the written Constitution, the fundamental rights (Articles 12 to 35)
and the constitutional remedies (Articles 32, 226, 227, and 136), the legislature still has the
propensity to exclude judicial review in certain fields, namely:

 Express or implied exclusion,

 Total or partial exclusion,

 Conditional or qualified exclusion, or

 Unconditional or unqualified exclusion.

Provisions of the Constitution excluding judicial review

Article 53

Under Article 53 of the Constitution, the executive power of the Union is vested in the President.
Article 72

Under Article 72 of the Constitution, the President shall have the power to grant pardons or suspend
punishments and such a power cannot be truncated by any court.

Article 74 (1) and (2)

Under Articles 74(1) and (2), there shall be a Council of Ministers at the head to help and educate the
President, and the President shall work in consonance with such advice. However, the question of
whether any and if so what, advice was given to the President by the Ministers shall not be
investigated by any court.

Article 77

Under Article 77, the conduct of any business of the government shall not be a subject of suspicion.

Article 77 and 78

Under Articles 77 and 78, there is a prohibition of judicial review to give ample freedom for the
exercise of executive power.

Article 80

Under Article 80, the composition of the Council of States is exclusively left to the discretion of the
President.

Article 103

Under Article 103, on the grounds of Article 102, the decision on questions as to disqualifications of
members shall be vested in the President and such rulings shall be absolute.

Article 161

Under Article 161, the power of the Governor to grant pardons, suspend punishments, etc., cannot
be truncated by any court.

Article 361

Under Article 361, the President, Governors, and Rajpramukhs are excused from legal proceedings in
a court of law with respect to the acts performed during the term of office.

Further, the exercise of the power of the President or the Governor cannot be subjected to judicial
review based on merits, as held in the case of Swaran Singh vs. State of UP (1998).

Moreover, the courts cannot issue any guidelines in matters of such interests as held in the case
of Maru Ram vs. UOI (1981).

Besides, the court cannot ask the President or the Governor to list reasons for backing the order
passed by them as stated in the case of State of Punjab vs. Joginder Singh (1990).

Exceptions for the exclusion of judicial review

The power of judicial review will be exercised in cases where the exercise of power is-

 Arbitrary,

 Discriminatory,
  Mala fide, or

 When material facts were not brought to the notice of the President or the Governor.

In such cases, the action can be set aside and instructions can be issued to pass a new ruling in
compliance with the law.