Grounds of Judicial Review

Judicial review is a cornerstone of the rule of law, empowering courts to examine the legality and constitutionality of actions taken by the executive and legislative branches, including delegated legislation. Delegated legislation refers to laws made by an executive authority under powers granted by a parent Act of Parliament or State Legislature.

Substantive Ultra Vires

This ground arises when the delegated legislation goes beyond the powers conferred upon the delegate by the parent Act. The delegate (the body to whom legislative power is delegated) must act strictly within the scope of the authority granted by the parent Act.

• Meaning: "Ultra Vires" means "beyond the powers." Substantive ultra vires occurs when the content or substance of the delegated legislation exceeds the powers granted by the enabling Act.
• Examples:
• If an Act empowers the executive to make rules for the regulation of traffic, and the executive makes rules imposing taxes, this would be substantively ultra vires as the power to regulate traffic does not include the power to tax.
• If a rule imposes a penalty disproportionate to the offense or beyond what is authorized by the parent Act.
• Judicial Intervention: Courts can strike down such delegated legislation as void if it is found to be substantively ultra vires.

Procedural Ultra Vires

This ground arises when the delegated legislation is made without following the procedure prescribed by the parent Act or by general law.

• Meaning: Even if the delegated legislation falls within the substantive powers granted, it can be challenged if the prescribed procedural requirements are not met.
• Examples of Procedural Requirements:
• Requirement of prior publication of draft rules.
• Requirement of consultation with specific bodies or experts.
• Requirement of laying the delegated legislation before Parliament or State Legislature.
• Failure to obtain necessary sanction from a higher authority.
• Case Example: In the UK, if a statutory instrument is not laid before Parliament as required by the parent Act, it may be considered procedurally ultra vires.

Essential Legislative Function

The principle of separation of powers dictates that Parliament (or the State Legislature) cannot delegate its essential legislative functions. Essential legislative functions are considered to be the determination of the legislative policy and its substance.

• Core Principle: While Parliament can delegate ancillary or subsidiary powers to the executive to fill in the details of legislation, it cannot abdicate its core responsibility of making the law itself.
• Delegatus Non Potest Delegare: This maxim means "a delegate cannot delegate." The power to legislate is a core function that Parliament cannot further delegate.
• Judicial Scrutiny: Courts can invalidate delegated legislation if it is found to be an improper delegation of essential legislative power. The delegation must be confined to ancillary or supplementary matters.
• Indian Context: In India, the Supreme Court has held that essential legislative function cannot be delegated. The parent Act must lay down the policy and principle, and the delegate can only do the "policing" or supplementary work.

Unreasonableness/Arbitrariness

Delegated legislation can be challenged if it is so unreasonable or arbitrary that it can be said to be no legislation at all.

• Doctrine of Unreasonableness: This doctrine, often associated with English law (e.g., the *Wednesbury* unreasonableness test), applies when a decision or action is so absurd or perverse that no reasonable authority could have arrived at it.
• Arbitrariness: In the Indian context, Article 14 of the Constitution guarantees equality before the law and equal protection of the laws, prohibiting arbitrary action. Delegated legislation that is arbitrary or capricious can be struck down.
• Examples:
• A rule that imposes an excessive or disproportionate burden without a rational nexus to the objective of the Act.
• A rule that grants unfettered discretion to an executive authority without any guidelines.

Malafides

Delegated legislation can be challenged if it is made with "malafides," meaning in bad faith, with improper motives, or for an ulterior purpose not envisaged by the parent Act.

• Proof Required: Proving malafides can be difficult, as it involves delving into the subjective intent of the delegate. The burden of proof lies on the challenger.
• Examples:
• If rules are framed not to achieve the objectives of the parent Act but to benefit a particular individual or group, or to harass a specific entity.
• If the delegate acts for personal gain or with a dishonest intention.
• Challenges: Courts are generally reluctant to interfere on grounds of malafides unless there is strong and cogent evidence.

Contradiction with parent Act or Constitution

Delegated legislation must be in conformity with the parent Act that empowers it, as well as with the Constitution of India.

• Conflict with Parent Act: If a rule or regulation made under an Act conflicts with the provisions of the parent Act itself, it is considered ultra vires the Act and can be struck down.
• Conflict with Constitution: If the delegated legislation violates any fundamental right guaranteed by the Constitution or any other constitutional provision, it is void.
• Examples:
• A rule that imposes a restriction on a fundamental right without adequate legal basis or reasonable classification.
• A regulation that contradicts a specific provision or a policy laid down in the parent Act.
• Judicial Role: Courts play a crucial role in ensuring that delegated legislation remains within the bounds of the parent Act and the Constitution, upholding the supremacy of the Constitution and Parliament's legislative will.

Laying Procedures

Legislative control over delegated legislation is a crucial mechanism to ensure that the executive does not exceed the powers granted by the legislature and that the delegated laws are consistent with the intent of the parent Act and the Constitution. One of the primary methods of legislative control is through "laying procedures," which involve presenting delegated legislation before Parliament or the State Legislature for scrutiny.

Affirmative Resolution

In this procedure, the delegated legislation (such as rules, regulations, or orders) does not come into effect unless it is expressly approved by a resolution passed by Parliament or the Legislature.

• Process: The delegated legislation is laid before the legislature, and a specific motion is moved for its approval.
• Effect: If the resolution is passed, the delegated legislation becomes effective. If it is rejected, the legislation does not take effect.
• Purpose: This provides a strong form of control, as the legislature actively endorses the delegated legislation. It is typically used for significant or policy-laden delegated legislation.

Negative Resolution

Under this procedure, the delegated legislation comes into effect immediately upon being laid before the legislature. However, it can be annulled or modified if the legislature passes a resolution to that effect within a specified period.

• Process: The delegated legislation is laid before the legislature, usually with a prescribed time limit (e.g., 40 sitting days) during which a resolution for annulment or modification can be moved.
• Effect: If no such resolution is passed within the stipulated time, the delegated legislation remains in force. If a resolution for annulment is passed, the legislation ceases to have effect.
• Purpose: This provides a more common and less intrusive form of control, allowing the legislature to act as a check without necessarily having to proactively approve every piece of delegated legislation.

Approval by Parliament/Legislature

This is a broader category that encompasses various methods by which the legislature scrutinizes and approves delegated legislation. It can include:

• Scrutiny by Committees: Delegated legislation may be referred to specialized parliamentary committees for examination before or after it is laid.
• Debate: In some cases, delegated legislation may be subject to debate in the legislature, allowing members to raise concerns and question the executive's actions.
• Incorporation into Parent Act: Sometimes, the delegated legislation is incorporated into the parent Act itself, effectively requiring legislative approval as part of the amendment process.

The specific laying procedure adopted depends on the parent Act and the constitutional framework of the country.

Parliamentary Committees

Parliamentary committees play a vital role in the oversight of delegated legislation, acting as specialized bodies that scrutinize these instruments on behalf of the entire legislature.

Committee on Subordinate Legislation

This is a standing committee in many parliamentary systems, including India and the UK, tasked with the specific responsibility of scrutinizing delegated legislation.

• Mandate: The primary function of the Committee on Subordinate Legislation is to examine and report to Parliament on any delegated legislation that has been made in pursuance of the powers granted by the Constitution or legislation, and which has been laid before Parliament.
• Scope of Scrutiny: The Committee typically examines delegated legislation on several grounds, including:
  • Whether it is in accordance with the general principles of the Constitution of India or the spirit of the parent Act.
  • Whether it purports to raise questions which fall within the Parliament's competence to amend, repeal or embody in any Act.
  • Whether it is inconsistent, in whole or in part, with any of the provisions of the parent Act.
  • Whether it is inappropriately applying or unduly delegating legislative power.
  • Whether it is retrospective, or confers retrospective privileges unreasonably.
  • Whether it involves an unjustifiable expense.
  • Whether it is subject to the delay in publication or laying before Parliament.
  • Whether its publication or laying before Parliament is otherwise considered defective.
• Powers: The committee can call for information from government departments, hear evidence, and make recommendations to Parliament. These recommendations can range from suggesting amendments to the delegated legislation to recommending its annulment.
• Impact: The scrutiny by such committees acts as a deterrent against the executive making arbitrary or faulty delegated legislation and ensures that the delegated powers are exercised judiciously.