CONTROL ON EXECUTIVE LAW MAKING

(LEGISLATIVE CONTROL AND JUDICIAL CONTROL)

• In a parliamentary democracy it is the function of the legislature to enact laws.
• If it seeks to delegate its legislative power to the executive because of some
reasons, it is not only the right of the Legislature, but also its obligation, as
principal, to see how its agent i.e. the Executive carries out the agency entrusted
to it.
• It is primarily legislature’s responsibility to ensure the proper exercise of
delegated legislative power, to supervise and control the actual exercise of this
power, and ensure the danger of its objectionable, abusive and unwarranted use
by the administration.
• There is need to control the administrative actions simply because administrative
actions consists of all the powers- legislative, judicial and executive.
• Hence, due to increase in the government functions, administrative agencies
exercise vast powers in all fields.
 Need for Control
• Since, it is the legislature which delegates power, it is primarily for it to
supervise and control the exercise of this power, and ensure against its
unwarranted use.
• Delegated legislation is made privately, rather than being debated as
parliamentary legislation and although the enabling act may require some
public consultation, delegated legislation could be much less open and
publicized.
• No directly created by Parliament, and often not even those given the
responsibility by Parliament, but is further sub-delegated.
• In U.S.A., the control of the Congress over delegated legislation is highly limited because
neither is the technique of “laying” extensively used nor is there any Congressional
Committee to scrutinize it. This is due to the constitutional structurization in that country
in which it is considered only the duty of courts to review the legality of administrative
rule-making.
• In England, due to the concept of Parliamentary sovereignty, the control exercised by
Parliament over administrative rule-making is very broad and effective. Parliamentary
control mechanism operates through “laying” techniques because under the provisions of
the Statutory Instruments Act, 1946, all administrative rule-making is subject to the
control of Parliament through the Select Committee on Statutory Instruments.
 Delegated Legislation Control in India
• A whole system of legislative supervision over delegated legislation has come into being in
India.
• Two significant kinds:
1. Parliamentary Control: Underlying object of this control is to keep a watch over the
rule-making authorities and to provide an opportunity to criticize them if there is an
abuse of power on their part.
2. Judicial Control: 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.
a) Procedural Ultra Vires: some parent Acts specify method of creation. Any
delegated legislation made w/o following these procedures can be declared ultra
vires. Eg: requirement for consultation.
b) Substantive Ultra Vires: content of delegated legislation. Any legislation beyond
this content is ultra vires. Eg: Collection of taxes- Commissioners passed a law
deciding “how much” tax to collect (Customs& Excise Commissioners v Cure &
Deeley Ltd 1962).
 Parliamentary Control
• In India, this type of control of administrative rule-making is implicit as a normal
constitutional function because the executive is responsible to the Parliament.
• Direct (General) Control
i. questions to a Minister at any time and on any delegation including necessity, extent, type of
delegation and the authority to whom power is delegated.
ii. motion of censure to be moved on the Minister-in-charge of implementation of any statute, and
iii. debate on a subject relating to subordinate legislation

• Rules of Procedure in the Lok Sabha:

“70. A Bill involving proposals for the delegation of legislative power shall further be accompanied by a
memorandum explaining such proposals and drawing attention to their scope and stating also whether they
are of normal or exceptional character.”:

“These devices, however, do not always function satisfactorily and, therefore, need to be supplemented by
special committees in the legislative bodies to watch over the exercise of delegated legislation and to
report accordingly.” – From the Report of the Committee on Subordinate Legislation.
 Indirect Control: Parliamentary Committees on Subordinate Legislation
• This is a control exercised by Parliament and its committees. The main work
of the committee is to examine
i. Whether rules are according to general object of the act.
ii. Whether it has retrospective effect or not.
iii. Whether it safeguard or destroy the Principle of Natural Justice.
iv. Expenditure involved in it is from Consolidated fund.
• Committee constituted u/R 317-322 of the Rules of Procedure and Conduct
of Business in the Lok Sabha.
• Major Functions of the Committee:
• Examination of Delegated Legislation
• Examination of legislation that delegates (Parent Act)
• Examination of any Bill specially referred by the Speaker
 Committee Procedure
• Can call for clarifications and has the power to summon witnesses and
compel the production of documents.
• Hears out various interested parties.
• Presents Reports to the House from time to time.
• Sends recommendations on Orders and Acts. On the recommendations
contained in the reports of the Committee, the Government is required
to take action within six months and keep the Committee informed of
the action taken or proposed to be taken in each case.
 Process of Scrutiny: Rule 320
320. After each such Order referred to in rule 319 is laid before the House, the Committee shall, in
particular, consider—
(i) whether it is in accord with the general objects of the Constitution or the Act pursuant to which it is
made; (constitutionality)
(ii) whether it contains matter which in the opinion of the Committee should more properly be dealt
with in an Act of Parliament. (excessive delegation of essential functions)
(iii) whether it contains imposition of any tax; (delegation of tax powers)
(iv) whether it directly or indirectly bars the jurisdiction of the courts; (blocking judicial review)
(v) whether it gives retrospective effect to any of the provisions in respect of which the Constitution or
the Act does not expressly give any such power;
(vi) whether it involves expenditure from the Consolidated Fund of India or the public revenues;
(vii) whether it appears to make some unusual or unexpected use of the powers conferred by the
Constitution or the Act pursuant to which it is made;
(viii) whether there appears to have been unjustifiable delay in its publication or in laying it before
Parliament; and
(ix) whether for any reason its form or purport calls for any clarification.
Recommendations of the Committee
(i) Provision of Rule 70 of the Rules of Procedure and Conduct of Business in Lok Sabha
are mandatory and therefore compliance therewith should invariably be made in case of
every Bill which involves delegation of legislative power to the Central Government or to
any other authority.
(ii) Ordinarily, rules should be framed under an Act as soon as possible after its coming
into force and in no case this period should exceed six months.
(iii) As far as possible, the use of complicated language in the rules should be avoided.
Rules should be specific and definite.
(iv) In cases where the rules are required to be published in the draft form, a period of not
less than 30 clear days should invariably be given to the public to send their comments/
suggestions on the draft rules.
(xxv) In cases where the rules/regulations/bye-laws are published in draft form for inviting
comments/suggestions from the public, those should be finalized and notified in final
form within a period of 3 months after the receipt of comments/suggestions
(v) ‘Orders’, required to be laid before the House, should be laid within a period of 15 days
after their publication in the Gazette, if the House is in session. And if the House is not then in
session, the ‘Orders’ should be laid on the Table as soon as possible (but within 15 days) after
the commencement of the following session, whenever, ‘Orders’ are laid after an inordinate
delay, an explanatory note giving the reasons for such delay should be appended thereto.
(vi) All rules framed by Government, pursuant to Constitutional or statutory provisions,
should invariably be published in the Gazette for public information.
(ix) Whenever rules are laid on the Table of the House, a Statement of Objects and Reasons
and also explanatory notes on the rules should also be appended thereto. When new rules
amending the original rules are laid on the Table the relevant extracts of the original rules
sought to be amended should also be attached to amending rules.
(xi) No charges should be levied unless there is an express authorization therefor in the
parent law.
(xiv) Retrospective effect to Subordinate Legislation cannot be given without an express
authorization therefor in the parent Act. Even the cases where the Government has the power
to give effect to Subordinate Legislation such powers should be exercised only in unavoidable
circumstances, and the Rules/ Regulations framed thereunder should in each case be
accompanied by an explanatory note or memorandum affirming that no one was likely to be
adversely affected as a result of retrospective effect given thereto.
Report on Non-Implementation of the Various
Recommendations of the Committee (2011)
“the recommendations of the Committee are still being followed only in
breach by various Ministries/Departments.”
“This has rendered the Committee to such a position that they have to
reiterate the same recommendations again and again, year after year and
decade after decade.”

• Problems:
• Delay in Framing of rules. (upto 6 years)
• Delay in Publication.
• No time given to the public to render comments on draft rules.
• Badly framed rules (Hence recommended the appointment of a Law Officer in every
relevant department).
Parliamentary Control in Practice
• In practice, a large number of rules are laid before Parliament, making
it very difficult for Parliamentarians to examine them effectively.
• In a single session of Parliament, more than 1500 documents are
sometimes laid before Parliament. No discussion on specific rules has
taken place in Parliament in the 14th and 15th Lok Sabha (2004-10).
• Both the Lok Sabha and Rajya Sabha also have Committees on
Subordinate Legislation to examine these rules. Out of 1515 rules,
regulations, circulars and schemes laid before Lok Sabha between
2008 and 2010, the Committee has examined 44 documents. This
amounts to only 3% of the afore-mentioned documents laid before
the Lok Sabha.
 Laying Provisions
• Another way for the parliament/ legislature to exercise supervision.
• UK – Statutory Instruments Act 1946 – applies to all subordinate legislation that
requires to be laid before Houses of Parliament.
• General provision – Rules come into effect the moment they are laid before the
House, subject to cancellation by either House of Parliament within 40 days.
• Different types of laying provisions:
1. Simple Laying: with no further direction: the rules and regulations come into effect as
soon as they are laid down before the Parliament. It is laid down to inform the
Parliament, but the consent of the Parliament with respect to its approval for the rules
and regulations are not required.
2. Negative Laying: (In India it may include modification as well): The rules will come into
force as soon as they are placed before the Parliament, but cease to have effect if
disapproved by the Parliament.
1. Effective immediately, and cease to have effect if disapproved
2. Effective after a time period (Usually 40 days) unless disapproved
3. Affirmative Laying: The rules shall have no effect unless approved by both the houses of
the Parliament.
1. No effect unless approved by both Houses, or
2. Ceases to have effect unless approved within time.
Example: Farmers Bills 2020
Farmers Trade and Commerce Facilitation Act 2020
Section 18. Laying of rules.—
Every rule made by the Central Government under this Act shall be laid, as
soon as may be after it is made, before each House of Parliament, while it is
in session, for a total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule.
Laying of Delegated Legislation in India
• India – No General Act that regulates laying procedure. Different Acts
have different requirements. No Uniformity
• Delegated Legislation Provisions (Amendment) Act 1983 – 50 statutes
amended in order to included laying provisions.
• State of UP – Amendment made to General Clauses Act making it a
rule of uniform application in the State.
• Consequences of non compliance: Depends if the clause is mandatory
or directory- Unlike UK and Australia where it is always construed to
be a mandatory requirement
 Atlas Cycles v State of Haryana (1978)
• 3 Judges. Unanimous.
• Facts: On 29 December 1964, the Development Officer of the Directorate-General, Technical
Development, New Delhi, carried out a spot review of the balance sheet at Atlas Cycle. From a review of
the books of accounts of the said appellant, it was discovered that from 1 January 1964 to 12 January
1965, the company had purchased 60.03 metric tons of plain iron sheets from multiple suppliers at a rate
higher than the maximum permissible price set for such sheets by the Iron and Steel Controller, by the
authority conferred by the Iron and Steel Control Order, 1956. Charges under Section 120B of Indian Penal
Code read with Section 7 of the Essential Goods Act and Section 7 read with Section 15(3) of the Control
Order are imposed by a special magistrate.
• The Appellants claimed the notification from the government that set the maximum selling prices of
different Iron & Steel categories, including the product in question in the present case, was not put before
the parliament, and was therefore not valid.
• This Order had been passed under S 3 of the Essential Commodities Act.
• Sub-section (6) of Section 3 of the Act ordains that every order made under this section by the Central or
by any officer or authority of the Central Government ‘shall be laid before both Houses of Parliament as
soon as may be, after it is made.’ The Petitioner contended that, since the notification fixing the
maximum price for buying steel had not been laid before both Houses of Parliament as required by the
Section, it was void.
• Issue: Whether the notification fixing the maximum selling price of the commodity in question is void for
not having been laid before both Houses of Parliament.
Held
• Though Sub-section (6) of Section 3 of the Act provides that every order
made by the Central Government or by any officer or authority of the
Central Government shall be laid before both Houses of Parliament as soon
as may be after it is made, the important point to be considered in the
absence of analogous statutes like the Statutory Instruments Act, 1946
and the Laying of Documents before Parliament (Interpretation) Act, 1948
prescribing the conditions, the period and the legal effect of the laying of
order before the Parliament is whether the provision is directory or
mandatory.”
• Noted that even the use of the word ‘shall’ is not conclusive in the matter.
 Mandatory v Directory
• Mandatory – Where the provision is mentioned that the rules should
be drafted in a particular format then it becomes mandatory to follow
the format.
• Directory – Where it is next to enforce the rule into operation then it
will be directory in nature.
“In the instant case, it would be noticed that Sub-section (6) of Section 3 of the
Act merely provides that every order made under Section 3 by the Central
Government or by any officer or authority of the Central Government shall be
laid before both Houses of Parliament, as soon as may be, after it is made.”
• It does not provide that it shall be subject to the negative or the affirmative resolution
by either House of Parliament.
• It does not even say that it shall be subject to any modification which either House of
Parliament may in its wisdom think it necessary to provide.
• It does not even specify the period for which the order is to be laid before both Houses
of Parliament nor does it provide any penalty for non-observance of or non-compliance
with the direction as to the laying of the order before both Houses of Parliament.
• It would also be noticed that the requirement as to the laying of the order before both
Houses of Parliament is not a condition precedent but subsequent to the making of the
order. In other words, there is no prohibition to the making of the orders without the
approval of both Houses of Parliament.
• In these circumstances, we are clearly of the view that the requirement as to laying
contained in Sub-section (6) of Section 3 of the Act falls within the first category i.e.
"simple laying" and is directory not mandatory.
Why was this considered directory?
• For the following reasons –
• In the absence of any provision of the contingency of a particular provision
not being complied with or followed
• Serious general inconvenience and prejudice caused to the public if the act
of the government is held to be invalid due to the said procedure.
• Section 3(6) of the Essential Commodities Act merely provides to lay the
said order before the Parliament. It does not subject to any type of laying
be it affirmative or negative resolution by the Parliament.
• Also, doesn’t stipulate the parliament can annul the order under Section 3.
• “It may be asked and legitimately too that when the Parliament to
keep its control over delegated legislation directs that the rules shall
be laid before the Parliament and if that rule is construed as directory,
the object itself would be defeated. But the Parliament or the
Legislature, as the case may be if they intended to make that rule
mandatory, they would have clearly mentioned the legal
consequences of its non-compliance as they have done in other
cases.
In Contrast
• Water (Prevention and Control of Pollution) Cess Act 1977: Section
16(1) provides a power of amending the schedule.
• S. 16(2): a notification amending the schedule shall be laid before the
parliament and the Central Government shall seek approval of
Parliament to the resolution within 15 days
Laying Provisions and Judicial Review
• Laying provisions do not confer any more sanctity on the rules as
though they were statutory provisions themselves
• Roles of courts and legislatures in this respect are different.
Legislature probes into the policy of the rules. Courts probe into their
legality.
Judicial Control – Procedural Ultra Vires
• Largely two prongs of procedural control, to ensure participation,
communication, efficiency and acceptability:
• Publication, and
• Consultation
• The particular problem of delegated legislation:
“the first knowledge to those affected of a rule, is usually after it has
gone into effect. The first opportunity they have to challenge it, is
usually after it is enforced against them.” (Roscoe Pound).
Publication
• Publication: Ignorance of law is no excuse. Implies:
• That the law ought to be known, or
• That the law can be known with reasonable diligence.
• Legislation by a legislature involves a lot of publicity, for the bill is
discussed on the floor of the legislature for several days; it passes
through several stages, and the discussions are reported in the press,
which may also comment on policy and principles underlying the bill.
• The same degree of publicity does not, however, attach to
administrative rule-making because most of the time rules are drafted
by departments in secrecy.
UK
• UK – Statutory Instruments Act, 1946:
• “3. - (1) Regulations made for the purposes of this Act shall make provision
for the publication by His Majesty's Stationery Office of lists showing the
date upon which every statutory instrument printed and sold by the King's
printer of Acts of Parliament was first issued by that office; …
• (2) In any proceedings against any person for an offence consisting of a
contravention of any such statutory instrument, it shall be a defence to
prove that the instrument had not been issued by His Majesty's
Stationery Office at the date of the alleged contravention unless it is
proved that at that date reasonable steps had been taken for the purpose
of bringing the purport of the instrument to the notice of the public, or of
persons likely to be affected by it, or of the person charged…”
US
• Position in the US: Federal Register Act in 1935.
• The Act establishes a Federal Register and provides for publication
therein of all federal rules, regulations, orders, and other documents
of "general applicability and legal effect.”
• Failure to publish rules results in an infirmity in so far as such rules
are not to adversely affect a person having no actual knowledge of
them. Thus, publication in the Register is a mandatory requirement
for legal effectiveness of rules.
• once a rule is published in the Federal Register, it is legally binding
regardless of the lack of knowledge of those persons who are subject
to it
INDIA
• India has no general statutory provision requiring or regulating
publication of delegated legislation.
• However, speaking generally, delegated legislation has to be
published. Publication of the rules (or any other form of delegated
legislation) is regarded as an essential requirement for their validity.
• So the requirement of publication of rules is always mandatory. The
specific manner of publication, if provided for in the statute, can be
either mandatory or directory
• What counts as adequate publication where no specifics are
provided? What would count as standard practice?
Harla v. State of Rajasthan
• On the 11th of December, 1923, the Council of Ministers appointed by the
Crown Representative for the government and administration of the Jaipur
State passed a Resolution which purported to enact the Jaipur Opium Act.
• Issue: whether the mere passing of the Resolution without promulgation or
publication in the Gazette, or other means to make the Act known to the
public, was sufficient to make it law.
• The same Council enacted the Jaipur Laws Act, 1923. Section 3(b) of this
Act provided as follows :- "3. Subject to the prerogative of the Ruler the law
to be administered by the Court of Jaipur State shall be as follows:…(b) All
the regulations now in force within the said territories, and the enactments
and regulations that may hereafter be passed from time to time by the
State and published in the Official Gazette."
• Jaipur Opium Act was never published in the Gazette either before or after
the 1st of November, 1924. But it is contended that was not necessary
because it was a "regulation" already in force on that date.
Held
• In the absence of any special law or custom, we are of opinion that it would be
against the principles of natural justice to permit the subjects of a State to be
punished or penalized by laws of which they had no knowledge and of which they
could not even with the exercise of reasonable diligence have acquired any
knowledge.
• Before a law can become operative it must be promulgated or published. It
must be broadcast in some recognizable way so that all men may know what it
is; or, at the very least, there must be some special rule or regulation or
customary channel by or through which such knowledge can be acquired with
the exercise of due and reasonable diligence.
• It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations
then in force from the necessity of publication in the Gazette. That may be so, but
the Act only saved laws which were valid at the time and not resolutions which
had never acquired the force of law. the mere passing of the Resolution of the
Council without further publication or promulgation of the law was not sufficient
to make the law operative and the Jaipur Opium Act was not therefore a valid
law.
Manner of Publication:
Govindlal v Agricultural Produce Market
• Appellant bought certain quantity of ginger without a license as
required by the Gujarat Agricultural Produce Markets Act 1964.
• Issue: whether the notification of including ginger within the purview
of the act was properly published?
• Gujarat Agricultural Produce Markets Act:
• 6(1). Declaration of market areas.-the Director may, by notification in the
Official Gazette, declare the area specified in the said notification or any
portion thereof to be a market area for the purposes of this Act in
respect of all or any of the kinds of agricultural produce specified in the
said notification. A notification under this section shall also be published
in Gujarati in a newspaper having circulation in the said area and in such
other manner, as may be prescribed.
• 6(5) After declaring in the manner specified in section 5 his intention of
so doing, and following the procedure there in, the Director may, at any
time by notification in the Official Gazette exclude any area from a
market area specified in a notification issued under sub-section (1), or
include any area therein and exclude from or add to the kinds of
agricultural produce so specified any kind of agricultural produce.
• Question: whether newspaper requirement applies to 6(5) too?
• The scheme of the Act and the purpose of the particular provision in section
6(1) underline the need to give to the provision its plain, natural meaning.
• It is not reasonable to assume in the legislature an ignorance of the
distinction between a "section" of the statute and the "subsections" of that
section.
• Therefore, the requirement laid down by section 6(1) that a notification
under "this section" shall also be published in Gujarati in a newspaper would
govern any and every notification issued under any part of section 6, that is
to say, under any of the sub-sections of section 6.
• If this requirement was to govern notifications issued under sub-section (1)
of section 6 only, the legislature would have said so.
 Whether it’s mandatory
• The meaning and intention of the legislature must govern, and these are to be ascertained, not only
from the phraseology of the provision, but also by considering its nature, its design, and the
consequences which would follow from construing it the one way or the other
• One of the fundamental rules of interpretation is that if the words of a statute are themselves
precise and unambiguous, no more is necessary than to expound those words in their natural and
ordinary sense, the words themselves in such case best declaring the intention of the legislature
• It is a matter of common knowledge that publication in a newspaper attracts greater public
attention than publication in the Official Gazette. That is why the legislature has taken care to direct
that the notification shall also be published in Gujarati in a newspaper. A violation of this
requirement is likely to affect valuable rights of traders and agriculturists because in the absence
of proper and adequate publicity, their right of trade and business shall have been hampered
without affording to them an opportunity to offer objections and suggestions, an opportunity
which the statute clearly deems so desirable.
• It is therefore vital from the point of view of the citizens' right to carry on trade or business, no less
than for the consideration that violation of the Act leads to penal consequences, that the
notification must receive due publicity. As the statute itself has devised an adequate means of such
publicity, there is no reason to permit a departure from that mode.
RAZA BULAND
• The Rampur Municipality, by a special resolution, proposed to levy property tax
on persons or a class or persons as per the U.P. Municipalities Act, 1916.
• Act in question: UP Municipalities Act 1916
• S. 131(3), can be divided into two parts. The first part lays down that the Board
shall publish proposals and draft rules along with a notice inviting objections to
the proposals or the draft rules so published within a fortnight from the
publication of the notice. The second part provides for the manner of publication
and that manner is according to Section 94(3)
• Section 94 (3) which provides for the manner of publication reads thus :"Every
resolution passed by a Board at a meeting shall, as soon thereafter as may be, be
published in a local paper published in Hindi and where there is no such local
paper, in such manner as the State Government may, by general or special order,
direct.“
• The resolution in this case was published in Hindi in a Local Urdu Newspaper.
Argued: It was non compliance of S.94. Hence invalid.
RAZA BULAND
Whether directory or mandatory: how to determine:
• The purpose for which the provision has been made and its nature,
• the intention of the legislature in making the provision,
• the serious general inconvenience or injustice to persons resulting
from whether the provision is read one way or the other,
• the relation of the particular provision to other provisions dealing
with the same subject and other considerations which may arise on
the facts of a particular case including the language of the provision,
have all to be taken into account in arriving at the conclusion whether a
particular provision is mandatory or directory
RAZA BULAND
• First part mandatory: the purpose served by the publication of the
proposals being to invite objections, in particular from the tax-payers,
to the tax proposed to be levied on them, the legislature in its
wisdom thought that compliance with this part of s. 131(3) would
essentially carry out that purpose. In the circumstances if we are to
hold that this part of s. 131(3) was merely directory, the whole
purpose of the very elaborate procedure provided in ss. 131 to 135
for the imposition of tax would become meaningless, for the main
basis of that procedure is the consideration of objections of tax-
payers on the proposals of the Board.
RAZA BULAND
• Second Part: It seems to us that when the legislature provided for the
manner of publication it did not intend that manner should be
mandatory. So long as publication is made in substantial compliance
with the manner provided in s. 94(3), that would serve the purpose of
the mandatory part of the section which provides for Publication. It
would therefore, not be improper to hold that the manner of
publication provided in s. 94(3) is directory and so long as there is
substantial compliance with that the purpose of the mandatory part
of s. 131(3) would be served.
Consultation
• Meaning: deliberation, conference of two or more persons
• Significance:
• ensure participation
• Communication
• efficiency
• Acceptability
• Infusion of democratic forms in bureaucratic legislation
Consultation
• UK – not mandatory in law, but considered mandatory for all practical purposes.
• US – Administrative Procedure Act, 1946. Makes detailed provisions with respect
to participation of persons in the rule-making process. Generally mandatory,
unless in cases of it being impractical, unnecessary, or contrary to public interest.
• India – No General Law, but different Acts provide for different processes
regarding consultation.
• Official Consultation with a Named Body/Statutory Body/Board: Banking Companies Act and
the RBI. Electoral Laws and the Election Commission in the RPA.
• Consultation with interested persons (Net Neutrality)
• Preparation of Rules itself by affected persons: Mines Act, Section 60(1):
• “(1) The owner, agent or manager of a mine may, and shall, if called upon to do so by the Chief Inspector
or Inspector, frame and submit to the Chief Inspector or Inspector a draft of such bye-laws, not being
inconsistent with this Act or any regulations or rules for the time being in force, governing the use of any
particular machinery or the such adoption of a particular method of working the mine as owner, agent
or manager may deem necessary to prevent accidents and provide for the safety, convenience and
discipline of the persons employed in the mine.
Banwarilal v. State of Bihar
• Central Bhowra Colliery in Bihar: an accident occurred as a result of
which 23 persons lost their lives.
• After an inquiry under. a. 24 of the Mines Act, 1952, a complaint was
prepared by the Regional Inspector of Mines, Dhanbad, under the
direction of the Chief Inspector of Mines, Dhanbad, before the Sub-
Divisional Officer, Dhanbad, against the appellant for an offence
under s. 74 of the Mines Act, 1952, for contravention of regulations
107 and 127 of the Coal Mines Regulations, 1957.
• The regulations are challenged here
• S.59(3) of the Mines act: "Before the draft of any regulation if; published
under this section it shall be referred to every Mining Board which is, in the
opinion of the Central Government concerned with the subject dealt with
by the regulation, and the regulation shall not be so published until each
such Board has had a reasonable opportunity of reporting as to the
expediency of making the same and as to the suitability of its provisions.“
• Preparation of Rules itself by affected persons: Mines Act, Section 60(1):
• “(1) The owner, agent or manager of a mine may, and shall, if called upon
to do so by the Chief Inspector or Inspector, frame and submit to the Chief
Inspector or Inspector a draft of such bye-laws, not being inconsistent with
this Act or any regulations or rules for the time being in force, governing
the use of any particular machinery or the such adoption of a particular
method of working the mine as owner, agent or manager may deem
necessary to prevent accidents and provide for the safety, convenience and
discipline of the persons employed in the mine.
 Whether directory or mandatory
• The language used in this case is emphatic and appears to be designed to
express an anxiety of the legislature that the publication of the regulation,
which is condition precedent to the making of the regulations, should itself be
subject to two conditions precedent-first, a reference to the Mining Boards
concerned, and secondly, that sufficient opportunity to the Board to make a
report as regards the expediency and suitability of the proposed regulations.
• most of the matters and purposes under S.57 on which regulations can be
made impinge heavily on the actual working of the mines. The very purpose of
the Act may well be defeated unless suitable and practical regulations are
framed to help the achievement of this purpose.
• Arbitrary and haphazard regulations without full consideration of their
practicability and ultimate effect on the efficient working of the mines, would,
apart from, often defeating the purpose of the Act, affect injuriously the
general economy of the country.
• It is certainly to the public benefit that Boards thus constituted should have
an opportunity of examining regulations proposed in the first place, by an
administrative department of the government and of expressing their
opinion.
• But, even where the opinion expressed by the Board is not accepted the
very fact that there has been such an examination by the Board, and a
consequent re. examination by the department is likely to minimize the
risks to public welfare: no necessary concurrence but deliberation required.
• It has to be noticed, as pointed out above, that s. 60 of the Mines Act,
1952, also lays down clear provisions where the consultation as required in
s. 59 need not take place. Here, however, the legislature itself has given
clear guidance as to the cases where such consultation need not be made
by the Government. What is more, the legislature has laid down that
regulations made without such consultation would have a limited life.
• Hence: Mandatory
Naraindas v. State of Madhya Pradesh,
• Section4: (1) The State Government may, by order, prescribe the text books
according to syllabi laid down under section 3;
Provided that text books for secondary education shall not be prescribed without
prior consultation with the Board.
(2) The text books prescribed by the State Government or the Board according to
the syllabi referred to in sub-section (2) of section 3 and in force immediately
before the appointed day shall till they are changed in accordance with the
provisions of this Act, be the text books prescribed for the purpose of subsection,
(1).
(3) As from the appointed day, no books other than the text books prescribed
under sub- section (1) or referred to in subsection (2) shall be used in any approved
school or recognized school for imparting instructions in accordance with syllabi in
primary education, middle school education or secondary education."
Facts
• The State Government thereafter in exercise of the power conferred
under s. 4, sub-s. (1) of the Act of 1973 issued a notification dated
24th May, 1973 according its approval to certain text books on
Botany, Zoology, History, Element of Commerce and English for the
Higher Secondary School Certificate Examination, 1976. It was recited
in the notification that the approval to these text books was given by
the State Government in consultation with the Board.
• The validity of the notification dated 24th May, 1973 was challenged
on the ground that the State Government by this notification
prescribed certain text books for the Higher Secondary classes
without prior consultation with the Board and the notification was,
therefore, invalid
• The appropriate Committee of Courses after scrutinizing the text books
placed before it and considering the evaluation made by the reviewers,
submitted its recommendations to the Board and the Chairman of the
Board, agreeing with the recommendations made by the appropriate
Committee of Courses, forwarded them to the State Government as
recommendations of the Board
• the question as to what text books should be recommended, to the State
Government for prescription was not placed before the general meeting of
the Board, nor was any resolution passed by general meeting of the Board
recommending any particular text books. The recommendations in regard
to the text books were made by the Chairman of the Board.
• Contended: Chairman of the board was entitled to act on behalf of the
board
• What the proviso to s. 4, sub-s. (1) requires is that there should be prior
consultation with the Board, and therefore, it is the Board which must give
its opinion and advice to the State Government in regard to the
prescription of text books. Now the Board may act by resolution passed at
general meeting but as pointed out above, there. was no resolution passed
at general meeting of the Board recommending any text books. It was the
Chairman who recommended the text books
• We do not find anything in the Act or in the Regulations which provides
that the power of the Board to recommend or give advice in relation to
text books to the State Government which power is necessarily by
implication conferred on the Board under s. 4, sub-s. (1) proviso-shall be
exercisable by the Chairman so that consultations with the Chairman
would be tantamount to consultation with the Board.
• Court: According to the scheme of the act, If any power or function of
the Board is intended to be made exercisable by the Chairman, that can
only be a done through the mechanism of the Regulations. The Board
cannot, by a resolution passed at a, general meeting, authorize the
Chairman to exercise a particular power or function entrusted to the
Board
• The resolution merely authorizes the Chairman to take all necessary
steps for the purpose of proceeding further with the implementation of
the text books improvement scheme and it does not confer any authority
on him to exercise a power of the Board which he other-wise did not
possess.
• In any event the authority conferred by this ,decision cannot include the
exercise of a statutory function which came to be vested in the Board for
the first time on 23rd Match, 1973 when s. 4, sub-s. (1) was enacted.
 Unconstitutionality of the Parent Act
Parent Act/ Delegated Legislation is Ultra Vires the Constitution
Chintaman Rao v State of MP (1950):
• Facts: A Notification was passed u/S 3 and 4 of the Central Provinces and Berar Regulation of
Manufacture of Bidis (Agricultural Purposes) Act, LXIV of 1948, which allowed the Deputy
Commissioner to prohibit the manufacture of bidis during the agricultural season.
• Relevant provisions of the Act:
“3. The Deputy Commissioner may by notification fix a period to be an agricultural season with
respect to such villages as may be specified therein.
4. (1) The Deputy Commissioner may, by general order which shall extend to such villages as he may
specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season engage
himself in the manufacture of bidis, and no manufacturer shall during the said season employ any
person for the manufacture of bidis".

• Issue:
Whether the Act and Notification in question amounts is violative of Article 19(1)(g) of the
Constitution.
Held
• “The statute in substance and effect suspends altogether the right mentioned in article
19(1)(g) during the agricultural seasons and such suspension may lead to such dislocation of
the industry as to prove its ultimate ruin.
• Even in point of time a restriction may well have been reasonable if it amounted to a
regulation of the hours of work in the business.
• The effect of the provisions of the Act, however, has no reasonable relation to the object in
view but is so drastic in scope that it goes much in excess of that object. Not only are the
provisions of the statute in excess of the requirements of the case but the language
employed prohibits a manufacturer of bidis from employing any person in his business, no
matter wherever that person may be residing. In other words, a manufacturer of bidis
residing in this area cannot import labour from neighbouring places in the district or
province or from outside the province. Such a prohibition on the face of it is of an arbitrary
nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to
achieve.
• “The statute as it stands, not only compels those who can be engaged in agricultural work
from not taking to other avocations, but it also prohibits persons who have no connection or
relation to agricultural operations from engaging in the business of bidi making and thus
earning their livelihood.”
• Hence, struck down both the Section and the notification issued thereunder.
Delegated Legislation is Ultra Vires the Constitution:
Himat Lal v Commissioner of Police, Ahmedabad (1972)
5 Judges. Unanimous. Concurring Judgments of Mathew and MH Beg.
• Facts:
• The appellant had applied for permission to hold a public meeting (in
connection with an All India students' strike sponsored by All India
Students Federation) to the Police Commissioner, which was denied.
The appellant challenged the provisions of the Bombay Police Act,
1951 and the rules framed thereunder, which gave authority to the
Police Commissioner to deny permission to hold a public meeting.
 Relevant Provisions
• Section 33, Bombay Police Act, 1951:
“(1) The Commissioner and the District Magistrate, in areas under their respective
charges or any part thereof, may make, alter or rescind rules or orders not inconsistent
with this Act for; …
(o) regulating the conduct of and behavior or action of persons constituting
assemblies and processions on or along the streets and prescribing in the case of
processions, the routes by which, the order in which and the times at which the same
may pass;…”
• Relevant Rules Framed under the Act:
“6. Subject to the provisions of the foregoing rules and subject to the
imposition of such conditions as, may be deemed necessary, a
permission shall be granted, unless the officer concerned is of opinion
that the procession proposed to be organised or taken out shall be
prohibited,…
7. No public meeting with or without loudspeaker, shall be held on
the public street within the jurisdiction of the Commissionerate of the
Police, Ahmedabad City unless the necessary permission in writing has
been obtained from the officer authorised by the Commissioner of
Police.”
• On whether the Rules went beyond the scope of the Parent Act:
“Under Section 33(o) no rule could be prescribed prohibiting all
meetings or processions. The section proceeds on the basis that the
public has a right to held assemblies and processions on and along
streets though it is necessary to regulate the conduct and behavior or
action of persons constituting such assemblies or processions in order
to safeguard the rights of citizens and in order to preserve public
order.
• “It seems to us that it follows from the above discussion that in India a citizen
had, before the Constitution, a right to hold meetings on public streets
subject to the control of the appropriate authority regarding the time and
place of the meeting and subject to considerations of public order. Therefore,
we are unable to hold that the impugned rules are ultra vires Section 33(1)
of the Bombay Police Act insofar as they require prior permission for
holding meetings.
• On whether the Rules themselves were ultra vires Article 19 (1) (b): “Rule 7
does not give any guidance to the officer authorized by the Commissioner
of Police as to the circumstances in which he can refuse permission to
hold a public meeting. Prima facie, to give an arbitrary discretion to an
officer is an unreasonable restriction.
• It was urged that the Marginal Note of Section 33-power to make rules for
regulation of traffic and for preservation of order in public place, etc.-will
guide the officer. Court Replied: It is doubtful whether a marginal note can
be used for this purpose, for we cannot imagine the officer referring to
the marginal note of the section and then deciding that his discretion is
limited, specially as the marginal note ends with ' etcetera '.
• It is also too much to expect him to look at the scheme of the Act and
decide that his discretion is limited. … In our view Rule 7 confers arbitrary
powers on the officer authorized by the Commissioner of Police and must
be struck down. The other Rules cannot survive because they merely lay
down the procedure for obtaining permission but it is not necessary to
strike them down for without Rule 7 they cannot operate.
• Hence, upheld the Section, but struck down the Rule.
Air India v. Nergesh Meerza

• Regulations 46 and 47 of the Air India Employees Service Regulations

were challenged. These Service Regulations had created a significant
amount of disparity between the pay and promotional avenues of
male and female in-flight cabin crew
• under Regulation 46, while the retirement age for Flight Pursers was
58, Air Hostesses were required to retire at 35, or on marriage (if they
married within four years of joining the service), or on their first
pregnancy, whichever occurred earlier. Under Regulation 47, this
period could be extended, subject to the absolute discretion of the
Managing Director
Impugned Provisions
• REGULATION 46 AIR INDIA EMPLOYEES SERVICE REGULATIONS
Retiring Age:
Subject to the provisions of sub-regulation (ii) hereof an employee shall retire from the
service of the Corporation upon attaining the age of 58 years, except in the following cases
when he/she shall retire earlier:
(c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within
four years of service or on first pregnancy, whichever occurs earlier.
• REGULATION 47 OF AIR INDIA EMPLOYEES SERVICE REGULATIONS
Extension of Service.
Notwithstanding anything contained in Regulation 46, the services of any employee, may,
at the option of the Managing Director but on the employee being found medically fit, be
extended by one year at a time beyond the age of retirement for an aggregate period not
exceeding two years, except in the case of Air Hostesses and Receptionists where the period
will be ten years and five years respectively."
 Held
• Difference in service rules: Reasonable classification on the basis of sex: AH and FPs
are different cadres, so different service rules for them is reasonable.- Conflict with
Article 15
• Marriage Restrictions: “the Regulation permits an AH to marry at the age of 23 if she
has joined the service at the age of 19 which is by all standards a very sound and
salutary provision. Apart from improving the health of the employee, it helps in the
promotion and boosting up of our family planning program.” Agency of the woman
employee?
• “Secondly, if a woman marries near about the age of 20 to 23 years, she becomes
fully mature and there is every chance of such a marriage proving a success, all things
being equal.”
• Thirdly, if the bar of marriage within four years of service is removed then the
Corporation will have to incur huge expenditure in recruiting additional AHs either on
a temporary or on ad hoc basis to replace the working AHs if they conceive and any
period short of four years would be too little a time for the Corporation to phase out
such an ambitious plan
Held
• requirement of termination on the first pregnancy: unconstitutional: “It
seems to us that the termination of the services of an AH under such
circumstances is not only a callous and cruel act but an open insult to
Indian womanhood, the most sacrosanct and cherished institution.”
• Proposed replacing “first pregnancy” with “third pregnancy” and subjecting
Air Hostesses to a series of requirements, such as taking leave without pay
during the pregnancy period and having to undergo an annual fitness
examination “in the interests of maintenance of efficiency”. These
Amendments were described by the Court as “quite reasonable“.
• Struck down the absolute discretion vested in the Director to terminate the
employment of Air Hostesses after they reached the age of 35, holding that
the unfettered discretion amounted to excessive delegation of power,
hence ultra vires.
 Retrospective Applicability
India:
• There is no prohibition in the Constitution against ex-post facto laws.
• Early Judicial Principle: Legislature may enact laws retrospectively, but a
delegate cannot, unless the parent statute gives it the power to do so either
expressly or by necessary implication.
• Rationale: retrospective rules may prejudicially impact vested rights therefore
the responsibility should rest with the Legislature and not the delegate to
”Carry out the purpose of the act…”
 State of Madhya Pradesh v. Tikamdas
• Facts – The respondent obtained a licence for the sale of foreign liquor (in Form -F, L. 3) issued
under the Foreign Liquor Rules framed under the Madhya Pradesh Excise Act, 1915 (Act II of
1915).
• The licence which he held was for one year from April 1, 1963, to March 31, 1964. He obtained
a fresh license for a period of one year from April 1964.
• Government was entertaining the idea of enhancing the scales of licence fee for the various
kinds of foreign liquor. The balance quantity left over with the respondent at the end of the
licensed period, viz., March 31, 1964, was checked by the concerned Excise Officials and a
Panchnama prepared in that behalf.
• Ordinarily, the surplus stock must be surrendered by the licensee but, on an undertaking to
pay the difference in the event of an enhancement of the rates, the bar owner was permitted
to keep on his premises the balance quantity.
• The Excise Act and the Foreign Liquor Rules made thereunder govern sales of these intoxicants
and Form F.L.3 applies to bars which sell foreign liquor for consumption on the premises. On
April 25, 1964, the Government, by virtue of its powers under the Act, amended in certain
respects the Foreign Liquor Rules.
• One such amendment concerns the scale of fees in respect of licence in Form F.L.3 → The rule
itself although promulgated on April 25, 1964, was given effect retrospectively from April 1,
1964.
• Rules - S. 62 – The State Government may make rules for the purpose of
carrying out the provisions of the Act (s.62). Such rules may regulate the
amount of fee. the terms and conditions of licences and the sale of fees
and the manner of fixing the fees payable in respect of such licences [62
(g) and (h) 1. This provision, by itself does not expressly grant power to
make retrospective rules.
• S.63 specifically states that 'all rules made, and notifications issued under
this Act shall be published in the Official Gazette, and shall have effect
from the date of such publication or from such other date as may be
specified in that behalf.’
• Apart from raising the rates. Rule IV was also amended by the addition of
the following provision at the end of it: The licensee shall be liable to pay
the difference of fees per bottle on the balance of stocks of foreign
liquor in the event of the enhancement of the scale of fees during the
currency or on expiry of the licence.
• Held- Subordinate legislation made by a delegate cannot have
retrospective effect unless the rule-making power in the concerned
statute expressly or by necessary implication confers power in this
behalf - Test for Retrospective Application.

• Looking at S. 63, it is evident that the legislature has empowered its

delegate, the State Government, not merely to make the rules but to
give effect to them from such date as may be specified by the
delegate. This provision regarding subordinate legislation does
contemplate not merely the power to make rules but to bring them
into force from any previous date. Rules are not Ultra Vires the Excise
Act.
 A. V. Nachane v. Union of India
Facts –
• The LIC was constituted under the LIC Act, 1956 to provide for nationalization of life
insurance business in India.
• Section 49(1 ) empowered the Life Insurance Corporation of India to make regulations for
the purpose of giving effect to the provisions of the Act.
• Two settlements were reached on January 24, 1974, and February 6, 1974, between the Life
Insurance Corporation and its Class III and Class IV employees - DJ Bahadur Case. These
settlements covered a large ground including the claim for bonus. These were settlements
under section 18 read with section 2(p) of the Industrial Disputes Act 1947. Clause 12 of the
settlements, the settlements were to be effective from 1st April 1973 for a period of four
years that is, from 1st April 1973 to 31st March 1977.
• In 1975, the Payment of Bonus (Amendment) ordinance was promulgated which was
subsequently replaced by the Payment of Bonus (Amendment) Act 1976. The Central
Government decided that the employees of establishments not covered by the Payment of
Bonus Act would not be liable to get bonus and ex-gratia payment in lieu of bonus.
• Payment of Bonus for the financial year 1975-1976 to the employees of the Corporation was
stopped under instructions from the Central Government.
• Rules – Section 49 – “The Corporation may, with the previous approval of the Central
Government, by notification in the Gazette of India, make regulations not inconsistent
with this Act and the rules made thereunder to provide for all matters for which
provision is expedient for the purpose of giving effect to the provisions of this Act.”
• Section 48 (3) – “Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of Parliament while it is in
session, for a total period of thirty days which may be comprised in one session or in
two or more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in making
any modification in the rule or both Houses agree that the rule should not be made, the
rule shall thereafter have effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule”.
• Section 48 by The Life Insurance Corporation (Amendment) ordinance, 1981: Sub-
clause(c) was inserted in sub-section 2 with retrospective effect from 20th June 1979.
• Life Insurance Corporation of India Class III and Class IV Employees (Bonus and
Dearness Allowance) Rules 1981: Rule 3(1) which states “No Class Ill or Class IV
employee of the Corporation shall be entitled to the payment of any profit-sharing
bonus or any other kind of cash bonus.”
• Court’s Decision - The rules made subsequent to the amendment cannot supersede
the settlements retrospectively & can only have prospective effect from the date of
publication of the Life Insurance Corporation of India Class III and Class IV Employees
(Bonus and Dearness Allowance) Rules, 1981.
• The decision clearly mentioned that the employees are entitled to be paid the bonus
earned by them & the Life Insurance Corporation of India was under an obligation to
pay the bonus in terms of the writ issued in D. J. Bahadur’s case. The Court further
went on to state that The Life insurance Corporation (Amendment) Act, 1981 and the
Life Insurance Corporation of India Class III and Class IV Employees (Bonus and
Dearness Allowance) Rules, 1981 are relevant legislation but rule 3 operating
retrospectively cannot nullify the effect of the writ issued in D. J. Bahadur’s case. A
retrospective amendment in Life Insurance Corporation of India Class III and IV
Employees (Bonus and Dearness Allowance) Rules, 1981 cannot nullify the effect of
writ issues by the court in an earlier case.
 B. S. Yadav v. State of Haryana
Facts:
• The case involved the rules governing seniority between direct recruits and promotees appointed to the
superior judicial services of the States of Punjab and Haryana.
• The Punjab Superior Judicial Service Rules were promulgated by the State of Punjab in 1963 under
Article 309 Constitution. They were amended from time to time, at times retrospectively. When the
State of Haryana was created on 1 November 1966, the Punjab rules as amended till that date were
adopted by Haryana. It also amended the rules from time to time, also a retrospectively.
• On 31 December 1976 the Punjab rules were amended retrospectively with effect from 9 April, 1976. Till
that amendment the position was that seniority of the members of the judicial service depended on the
date of confirmation, but by the aforesaid amendment the seniority was to be determined by the length
of continuous service in a post in the service irrespective of the date of confirmation – in consultation
with the HC.
• On April 21, 1972, the Governor of Haryana, in exercise of the powers conferred by the proviso to Article
309 of the Constitution and all other powers enabling him in that behalf, amended the 1963 Rules by the
Haryana First Amendment Rules, 1972, with retrospective effect from April 1, 1970.
• In regard to the rule of seniority, the position as it obtains in the two States is fundamentally different:
1. In Punjab, under rule 12 as amended on December 31, 1976, with retrospective effect from April 9,
1976, seniority is determined by the length of continuous service on a post irrespective of the date of
confirmation.
2. In Haryana, rule 12 as it stood originally was revived with effect from April 1, 1976, with the result,
that seniority of judicial officers in the Superior Judicial Service is determined with reference to the
dates of confirmation.
Article 309 – Recruitment and conditions of service of persons serving the Union or a
State Subject to the provisions of this Constitution
Acts of the appropriate Legislature may regulate the recruitment, and conditions of
service of persons appointed, to public services and posts in connection with the affairs
of the Union or of any State.
Provided that it shall be competent for the President or such person as he may direct in
the case of services and posts in connection with the affairs of the Union, and for the
Governor of a State or such person as he may direct in the case of services and posts in
connection with the affairs of the State, to make rules regulating the recruitment, and
the conditions of service of persons appointed, to such services and posts until provision
in that behalf is made by or under an Act of the appropriate Legislature under this
article, and any rules so made shall have effect subject to the provisions of any such Act
Held:
• The frequent amendments to the rules which are often given a long retrospective
effect, as long as seven years, makes the High Court's administrative task difficult. And if
the amendments are made either without consulting the High Court or against its
advice, the High Court has a delicate task to perform because if it adheres to its opinion,
it is accused of bias and if it gives up its stand, it is accused of being weak kneed and
vacillating.
• “That is hardly conducive to the sense of discipline and the feeling of brotherhood which
ought to animate the Judiciary. Surely, the State Governments of Punjab and Haryana
could have saved the High Court from this predicament by evolving a common set of
rules of seniority, at least in the name of national integration. There is nothing peculiar
in the soil of Punjab and nothing wanting in the soil of Haryana to justify the application
of diametrically opposite rules of service to the judicial officers of the two States.”
• “The territories comprised in these two States were at one time, and that too not in the
distant past, parts of the territory of the same State of Punjab. The promotees, at any
rate, who figure in these proceedings, all flowered on the soil of Punjab but are not told
that their claim to seniority will depend upon whether they remained in Punjab or were
allotted to Haryana.”
• This unfortunate position has arisen largely because of the failure of the State Governments to
take the High Court into confidence while amending the rules of service. Neither promotees nor
direct recruits felt secure about their existing rank or seniority because the rules were being
amended from time to time, sometimes just to suit the convenience, sometimes to tide over a
temporary crisis, sometimes to appease a class of officers who shouted louder and at least once
in order to strike at an individual.
• Whether the determination of seniority of the members of the Service is a matter which is
within the exclusive jurisdiction of the High Court as a necessary consequence of the control
vested in it by virtue of Article 235 of the Constitution of India?
• According to the Court, any intrusion into the field of this control by any agency other than the
High Court would be unwarranted and therefore, unconstitutional. “We are of the firm view
that both on principle and logic and in view of the trend of the present authorities, it appears
to be plain that the Seniority of the members of the judicial Service is so integral and vital to
the control of the High Court over them, that any erosion thereof would both be violative of
Article 235 of the Constitution and equally run counter to the settled concept of the
independence of judiciary which is now coming to be recognised as the basic feature of the
Constitution.” It appears to us that what the State Government cannot do directly, it cannot be
allowed to do indirectly by framing rules even by the exercise of executive power vested in it by
virtue of Article 309 and without even consulting or informing the High Court.
• Who has law making powers? On a plain reading of Articles 235 and 309 of the
Constitution, it is clear that the power to frame rules regarding seniority of officers in
the judicial service of the State is vested in the Governor and not in the High Court. A
combined reading of Articles 235 and 309 will yield the result that though the control
over Subordinate Courts is vested in the High Court, the appropriate legislature, and
until that legislature acts, the Governor of the State, has the power to make rules
regulating the recruitment and the conditions of service of judicial officers of the State.
• On the grounds of retrospective application – The Governor exercises a Legislative
power under the proviso to Article 309 of the Constitution, it is open to him to give
retrospective operation to the rules made under that provision. But the date from
which the rules are made to operate must be shown to bear, either from the face of the
rules or by extrinsic evidence, reasonable nexus with the provisions contained in the
rules, especially when the retrospective effect extends over a long period as in this case.
No such nexus is shown in the present case on behalf of the State Government.
Judicial Control: 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.
a) Procedural Ultra Vires: some parent Acts specify method of creation.
Any delegated legislation made w/o following these procedures can be
declared ultra vires. Eg: requirement for consultation.
b) Substantive Ultra Vires: content of delegated legislation. Any
legislation beyond this content is ultra vires. Eg: Collection of taxes-
Commissioners passed a law deciding “how much” tax to collect
(Customs& Excise Commissioners v Cure & Deeley Ltd 1962).
 SUBSTANTIVE ULTRA VIRES
Delegated legislation may be held invalid on the grounds of substantive ultra
vires in the following circumstances:
(i) When Parent act is unconstitutional,
(ii) When Parent act delegated essential legislative functions,
(iii) When DL is inconsistent with general law
(iv) Where DL is unconstitutional,
(v) Where DL is arbitrary,
(vi) Where DL is unreasonable,
(vii) Where DL is mala-fide,
(viii) Where DL operated retrospectively etc.
 V. Sudeer v. Bar Council of India
Facts:
• The Bar Council of India is the primary body which regulates the legal profession.
• 1961 – Advocates Act, 1961 - An Act to amend and consolidate the law relating to
the legal practitioners and to provide for the constitution of Bar Councils and an
All-India Bar.
• Section 7 – Function of the Bar Council.
• Section 24 - Persons who may be admitted as advocates on a State roll: conditions
that can be put on a person wishing to practice law.
• Section 49 - General power of the Bar Council of India to make rules.
• Bar Council of India Training Rules, 1995- These rules deal with the conditions
and training process to be undergone by a person before he can be enrolled as an
advocate in a State Bar Council. Before enrolment – One year training. After
enrolment – Another year of training after which you get a Certificate of Practice.
Petitioner’s Contention – The Petitioners submitted that there is no power with the Bar
Council of India to frame the impugned rules.
• The provisions do not entitle the Bar Council of India to frame rules prescribing a pre-
condition before enrolment of an applicant as an `advocate' under the Act by
requiring him to undergo pre-enrolment training and apprenticeship as laid down under
the impugned rules.
• Rules framed are so obnoxious, arbitrary, unreasonable, and unworkable that they
violate the fundamental right of the petitioners under Article 14 of the Constitution of
India.
Issue:
Whether the impugned rules are ultra vires the rule making power of the Bar Council of
India as available to it under the provisions of the Act?
 Court’s Decision
• Legislative Intent – Historical Background – Amend and consolidate the law relating
to legal practitioners and to provide for the constitution of Bar Councils and an All-
India Bar. A Bill was introduced in the Parliament seeking to implement the
recommendations of the All-India Bar Committee made in 1953 after taking into
account the recommendations of the Law Commission on the subject of Reform of
Judicial Administration.
• Conditions set by the State Bar Council - From 1961 to 1964, the State Bar Council, as
a condition of enrolment, required an applicant to undergo a course of training in Law
and also required him to pass the examination after such a training. But after 1964 till
1973, it was permissible for the State Bar Council to prescribe a course of training in
Law as a precondition for enrolment of a candidate and he was also required to pass
the requisite examination during the training or even after completion of the training
course and such examination could be prescribed by the State Bar Council concerned
only. Advocates (Amendment) Bill, 1970 → Section 24(1)(d) stood deleted. The said
clause entitled the State Bar Councils to frame Rules for prescribing pre-enrolment
training and examination subject to which a person would get qualified to be
enrolled as an advocate on the State roll.
• Pre-enrolment Training – The Bar Council of India has decided that in future a degree in Law
can be obtained only after undergoing a three-year course of study in Law after graduation as a
result of which the age of entry into the legal profession becomes much higher than the age of
entry in other professions. It is, therefore, felt that after a three- year course in Law in a
University it is not necessary to retain the statutory provision in the Act requiring a further
examination or practical training.
• From 1964 till the end of 1973, the Bar Council of India had rule making power to exempt
those persons who were otherwise required to undergo pre-enrolment training and passing an
examination as prescribed by the State Bar Councils under Section 24 (1)(d).
• After 31st January 1974, the legislature did not think it fit to clothe the State Bar Councils with
the power to prescribe any pre-enrolment training and examination to be undergone by an
applicant for enrolment as an Advocate on the State roll.
• Rules by the Bar Council – According to the SC, all that the Bar Council of India can do is to
suggest ways and means to promote such legal education to be imparted by the Universities
and for that purpose it may lay down the standards of education, syllabi in consultation with
the Universities in India. It is, therefore, difficult to appreciate how for promoting legal
education through the Universities imparting legal education in India, the Bar Council of India
can itself take up the role of laying down pre- enrolment training for applicants seeking to
enter legal profession by getting enrolled under Section 24 of the Act.
• Final Holding – There was a legislative amendment that removed this training however the
executive has, through an executive act of rulemaking, undone the action. The Court held that
there was specific legislative intent in removing the training and the BCI does not have the
power to make rules.
V. Sudeer v. Bar Council of India, AIR 1999 SC 1167 overruled by Bar Council of India v. Bonnie Foi Law
College & Ors. Civil Appeal No. 969 of 2023 (Arising out of SLP (C) No. 22337 of 2008)
Held:
• The Supreme Court of India decided in this case that the Bar Council of India has the power to conduct
the pre-enrolment examination (AIBE) to maintain the standards of lawyers practicing.
• The Constitutional Bench observed that there are no provisions in the Advocate Act, which prohibits
the Bar Council of India from conducting pre-enrolment examinations (all India Bar examination)
because the Bar Council is extremely concerned with the quality of Law Practitioners who want to
obtain a license from it.
• The Court later decided that it is Bar Council's to decide the examination at what stage it should be
held pre or past because it is mainly concerned authority related to it and further addressing the court
said that there are consequences concerning the interregnum period which would be in both
situations pre or past examination later the court said that they are not right authority to enquire in it
and it would be better than this matter is left for bar council to look into both the situations.
 ADMINISTRATIVE DIRECTIONS
• Art.73 and Art. 162 of the Constitution outline the extent of executive power of the Union/State
respectively. It states that the executive power of the Union/State shall extend to the matters with
respect to which Parliament has power to make laws. The State, in exercise of its executive powers carries
out the general administration of the State. As long as the government does not go against the provisions
of the Constitution, the width and amplitude of the executive power cannot be curtailed or circumscribed.
• If the executive has not been given legislative power, then the government can carry out administrative
responsibilities by issuing administrative directions (these are purely executive in nature). Administrative
directions arise for the smooth and effective functioning of the administration. These directions are given
by a superior authority to a subordinate authority for proper implementation of the law/rule.
• As there was a growth in the role of the State as a Welfare State, there has been a growth of
administrative process; this growth has been accompanied by the conferment of more and more
discretionary powers on administrative authorities.
• Administrative directions have no statutory force and are applied to a particular case or general laying
down general principles of polity. E.g., letters, circulars, oral directions, pamphlets, notes etc. They are
administrative quasi-legislation.
• Enforceability of Administrative Directions – Administrative directions are not so binding or enforceable
as they neither confer any enforceable rights on the individual nor impose an obligation upon the
administrative authority or individual. Even in instances when the direction is misapplied or ignored by
the administrative authority, the affected individual can rarely claim remedy in a court of law against the
administrative authority. A direction cannot jeopardize a right of an individual, and the breach of the same
may lead to disciplinary or appropriate action against the individual.
Is there a remedy then?
If an administrative direction is not complied with, there are remedies that are intra-departmental or
administrative in nature, and not through a court of law.
What are some instances of administrative directions?
The following are a few instances of administrative directions:
a. When power is conferred on a specified authority by the statute and directions come from a superior
authority.
b. When legislative power is conferred on a specified authority by the statute, but that authority sub
delegates the power and directions are issued by this authority to the delegate → Inoperative form of
Delegated Legislation.
c. When the power is conferred by a particular statute on the President, or the governor and such
authority gives directions to civil servants. (Art. 309) {Superior authority → Subordinate Authority}
How do you identify a direction?
An administrative direction make prove tricky to identify. The Government is continuously engaged in the
process of “legislation” in the sense of laying down a general norm of public behaviour or administrative
behaviour. There is no definitive distinction as to what constitutes an administrative direction, and
expressions like “code”, “rules”, and “regulations” are used haphazardly and indiscriminately for directions.
The usual distinction is that administrative directions are rules made by the administration in pursuance of
the statutory rule-making power conferred on it by a statutory or constitutional provision. Directions are
issued by the Administration in exercise of general administrative powers conferred under Art. 73 and 162.
 Kumari Regina v. St. Aloysius Higher Elementary School and Another
Facts:
The following is the timeline of events:
1. 10th April 1949 – Appellant appointed as headmistress.
2. 1st June 1955 – The manager of the school demoted her to an Assistant Teacher
The appellant appealed against the action of the management to the District Educational Officer, which was
rejected. There was a second Appeal to the Divisional Inspector of Schools. The DI, by order dated July 5, 1956,
directed the District Educational Officer to issue instructions to the Management of the School to reinstate the
appellant as Head Mistress. The management did not act on it. Aggrieved, the appellant filed a suit claiming a
mandatory injunction directing the Management of the School to reinstate her to the post of Head Mistress and
damages for loss resulting from the wrongful action of the Management.
Appellant’s Arguments – The school was receiving grant- aid from the Government of Madras and was subject to
the supervision and control of the Education Department, Government of Madras. The school’s affairs must be
conducted according to the rules and regulations framed by the Government and embodied in the rules relating
to the elementary schools framed under the Madras Elementary Education Act, 1920. The order passed by the
Manager removing her from the post of Head Mistress stood vacated, and refusal of the Manager to reinstate her
was illegal, because bound by rr. 13 & 14 framed under the Madras Elementary Education Act to obey the order
passed by the Divisional Inspector of Schools on an appeal preferred by her.
Respondent’s Arguments – They contended that they were not bound by the Madras Elementary Education Act
or the rules framed thereunder; and that the Manager alone was responsible for the "efficiency, strength and
progress" of the school and for the internal discipline, which were all matters left to his discretion and the
Management could not be compelled to reinstate the appellant as Head Mistress when she did not command
their confidence.
Issue

(i) Whether the rules framed under the Madras Elementary Education Act,
1920, which conferred authority upon the educational authorities of the State,
were statutory and enforceable at the instance of a person prejudicially
affected by breach thereof?

(ii) Whether an order made by the Educational authorities in exercise of the

powers conferred upon them by rules is liable to be enforced by action in a civil
court at the instance of a person affected by the action of the school authorities
falls to be determined?
• MADRAS ELEMENTARY EDUCATION ACT
• Section3(vi): defines such an elementary school as one recognised by
the Director of Public Instruction or by such authority as may be
empowered by him in that behalf.
• Section 56: authorises Govt. to make rules not inconsistent with the
provisions of the Act "to carry out all or any of the purposes of this
Act", and in particular Clause (h) of Sub-section (2) for "declaring the
conditions subject to which schools may be admitted to recognition
or aid.
Held
• The new Rules were divided into two parts. The first part contained rules dealing with matters provided for in
specific sections. Part II Rules did not set out or refer to any of the sections in the Act as Part I Rules did. The reason
was that rules in Part II dealt with recognition and aid in respect of which there were, after the 1939 amendment, no
corresponding provisions in the Act.
• It is also of some significance that when published in 1939 the rules in Part I were headed "Rules framed under the
Madras Elementary Education Act, 1920", while the rules contained separately in Part II were not given any such
heading or title. When Part II Rules were published in August 1939 there was no previous publication of them as
required by S. 56(1) of the Act.
• Part II Rules cannot be said to be statutory rules framed under S. 56. “The mere fact that such a school has obtained
recognition and aid from the education department would not mean that the relationship between its management
and its employees has ceased to be governed by the contracts of employment under which the employees are
recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one
finds in statutes dealing with industrial disputes and similar other matters.” In the absence of 'statutory provision
having the effect of controlling or superseding the contract of employment agreed to between the parties, the
termination would in law be valid.
• The rules thus govern the terms on which the Government would grant recognition and aid and the Government can
enforce those rules upon the management. But the enforcement of such rules is a matter between the Government
and the management, and a third party, such as a teacher aggrieved by some order of the management, cannot
derive from the rules any enforceable right against the management on the ground of a breach or noncompliance of
any of the rules. The appellant could not have a cause of action for enforcing the directions given by the Divisional
Inspector to restore her as the Head Mistress in the appeal filed by her.
The ‘rules’ made thereunder were merely administrative instructions for the
following reasons:
1. The rules made under the statute could be made for carrying out the purposes
of the Act. That was a condition precedent. But the rules in question could be
related to no purpose or provision of the concerned statute and an
administrative instruction doesn’t have to be consistent with the Parent Act.
2. The Government did not claim to make them under their statutory power.
3. Under the Act, prepublication of the rules was necessary, but the rules in
question were not published. Could not be related to the statutory authority as
these are ultra-vires the Act. The rules were treated as having been issued
under the general administrative power and so characterized as directions.
• When can rules be binding?
• It is a well-established principle that while rules made under statutory power are binding, a non-
statutory direction is not enforceable in a court of law against either an individual or the
Administration. It does not fall under the category of a direct or subordinate legislation.
• A direction is unenforceable in a Court against either a person or the Administration. A direction
neither confers any enforceable right on person nor imposes an obligation or duty on the
Administration and the misconstruction nor misapplication of a direction by the administration
does not amount to an error of law.
• There are, however, two circumstances, wherein administrative directions can be binding. These
are :
• Authority conferred by some statute; Any administrative direction that is backed by a statutory
provision, which is issued by a higher authority to a subordinate one will have binding authority
on the latter. This was held in the landmark case of Delux Land Organisers v. State, wherein
directions issued by the Central Government under Section 36 of the Urban Land (Ceiling and
Regulation) Act 1976 were held to be binding on the state government.
• In this, it is imperative that such direction is backed by a statutory regulation , this is so because
if in an act there is no provision for the higher authority to give directions to the lower authority,
that would mean, that it would have been the intent of the act to let the lower authority
function on its own without any interference. Essentially determining the nature of
administrative directions would mean construing their enforceability.
• Through some provision of the Constitution.
 B.S. Minhas v. Indian Statistical Institute & Ors.
Facts
• The petitioner challenged the appointment of the respondent no. 4 on the grounds that
he was much more highly qualified academically and had accomplishments far superior to
the said respondent.
• The petitioner has been holding the position of Distinguished Scientist since March 12,
1976, while Respondent 4 was not a Distinguished Scientist till his appointment as
Director. The petitioner was more qualified than Respondent 4.
• The Council approved the recommendation of the Selection Committee, and it also
approved the terms and conditions of appointment of Respondent as Director.
• In the writ petition it was contended that byelaw requires that the vacancy of the director
should be publicized but it was not many were not aware of the vacancy until the
appointment. No bio data or information of the candidates was given to the council.
Petitioner’s Contentions
The appointing authority had not observed the rules and regulations and byelaws of the
Institute as laid down in the memorandum of association and had also violated the
provisions of Arts. 14 and 16 of the Constitution.
Petition also pointed out that the vacancy of the post of Director had not been publicized
and he, being the senior most researcher working as Distinguished Scientist of the
Institute, was not given an opportunity to apply for the same.

Respondent’s Contention
Assuming that there has been a violation of byelaw no writ can lie to correct the same as
the alleged byelaw has no statutory basis in as much as the Institute has been declared
as an Institution of National Importance, the byelaws not being statutory the
respondents are under no obligation to observe the procedure laid down therein.
Held
• Quashed and has set aside the appointment of director of the Indian Institute of
Statistics. Before respondent 1 tries to select a new director, it has to comply the
requirement of byelaw by publicizing the vacancy of the post.
• The Central Government provides all the money required for the funding for the
institute and the other source of money to the institute must have the Central
Government’s approval.
• The control of the Central Government is deep and pervasive and, therefore, it is an
instrumentality of the Central Government subject to constitutional obligations under
Article 14&16. The vacancy for the post of the director should had been publicized and
it would have garnered wider people for eligibility and the council would have much
larger field to choose for the post.
• But in the absence of publicity as contemplated by byelaw, it cannot be said that all
other qualified persons like the petitioner were also considered by the selection
committee for appointment, in the absence of any application by them for the post or
any recommendation of them by any other authority or individual. Before respondent
No. 1 proceeds to select a new Director, it will comply with the requirement of byelaw
by giving suitable publicity to the vacancy in the office of Director.