M.P. Jain and S.N. Jain: Principles of Administrative Law (Set of 2 Volumes) [1, 7 ed.] 8180387100, 9788180387104

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M.P. Jain and S.N. Jain: Principles of Administrative Law (Set of 2 Volumes) [1, 7 ed.]
 8180387100, 9788180387104

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Principles of Administrative Law M.P.Jain
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M_P_Jain_Principles_of_Administrative_Law_2
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M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER I INTRODUCTORY

CHAPTER I INTRODUCTORY 1. EXPANSION OF ADMINISTRATIVE LAW Administrative law has been characterised as the most "outstanding legal development of the twentieth century."1 It does not mean, however, that there was no Administrative Law in any country before the twentieth century. Being related to public administration, Administrative Law should be deemed to have been in existence in some form or another in every country having some form of government. It is as ancient as the administration itself as it is a concomitant of organised administration. As has been stated by a scholar: "Since administrative law is the law that governs, and is applied by, the executive branch of government, it must be as old as that branch."2 In India itself, Administrative Law can be traced back to the well organised and centralised Administration under the Mauryas and the Guptas,3 several centuries before the Christ, following through the administrative system of the Mughals to the Administration under the East India Company, the precursor of the modern administrative system.4 What the opening statement, therefore, signifies is that Administrative Law has grown and developed tremendously, in quantity, quality and relative significance, in the twentieth century; that it has become more articulate and definitive as a system in democratic countries; that it has assumed a more recognisable form in the present century so much so that it has come to be identified as a branch of public law by itself, distinct and separate from Constitutional Law,5 a fit and proper subject-matter of independent study and investigation in its own right. Problems of Administrative Law are presently raised in a large number of Court cases. This shows the topical significance of Administrative Law at present. The rapid growth of Administrative Law in modern times is the direct result of the tremendous growth of administrative powers and functions. This development can partly be attributed to the critical international and internal situation creating a sense of insecurity which compels the government to acquire vast powers to provide for the defence and internal security of the country. For example, in India, the National Security Act, 1980 (NSA)6 confers vast discretionary powers on the Administration to interfere with the personal freedom of the people. This Act provides for preventive detention on several grounds, viz., defence of India, security of a state, public order, maintenance of supplies and services essential to the community. But, mainly, the growth of Administrative Law is to be attributed to a change of philosophy as to the role and function of the state. The ruling political gospel of the nineteenth century was laissez faire which manifested itself in the theories of individualism, individual enterprise, and self-help.7 This philosophy envisaged minimum government control, maximum free enterprise and contractual freedom. The state was characterised as the "law and order" state and its role was conceived to be negative as its interest extended primarily to a few activities only, e.g., defending the country from external aggression, maintaining law and order within the country, dispensing justice to its subjects and collecting a few taxes to finance these activities. It was an era of free enterprise and minimum governmental responsibility and functions. The management of social and economic life was not regarded as the government responsibility. But the laissez faire doctrine resulted in human misery. It came to be realised that the bargaining position of every person in the society was not equal, and uncontrolled contractual freedom led to exploitation of the weaker by the stronger, e.g., of the labour by the management in industries. On the one hand, there existed slums, unhealthy and dangerous conditions of work, child labour, widespread poverty, and exploitation of masses, but, on the other hand, concentration of wealth in a few hands became the order of the day. It came to be realised that the state should take active interest in ameliorating the conditions of the poor. This approach led to the demise of laissez faire and the growth of the new political dogma of "collectivism" which favoured state intervention in, and social control and regulation of, individual enterprise.8 The state started to

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act in the interests of social justice; it assumed a "positive" role. In course of time, out of the dogma of collectivism emerged the concept of the "social welfare state" which lays emphasis on the role of the state as a vehicle of socio-economic regeneration and welfare of the people.9 As Maclver observes:10 "Thus the economic individualism of laissez faire, itself born of changing needs, could not withstand the demonstration of its inadequacy which the age afforded. Its doctrine of free competition gave even to the name of freedom a sinister as well as an unreal sound. It came to appear that the unequal are never free and that without protective laws the free are only the strong. Against such a destroying freedom man appealed again to the state, and the brief age of laissez faire passed with its prophets."

This trend may be illustrated very forcefully by referring to the position in India. Before 1947, British India was a police state. The ruling foreign power was primarily interested in strengthening its own domination; the administrative machinery was used primarily with that object in view and the civil service came to be characterised as the "steel frame". The state did not concern itself much with the welfare of the people. But this scenario changed with the advent of independence in 1947. A conscious effort then began to be made to transform the country into a welfare state. The philosophy of welfare state has been expressly ingrained in the Indian Constitution. According to the preamble, the Constitution aims at establishing a sovereign socialist secular democratic republic in India so as to secure to all its citizens, inter alia, social, economic and political justice.11 According to Art. 38 of the Directive Principles of State Policy,12 the state is obligated to strive to secure a social order in which social, economic and political justice shall inform all the institutions of national life. The state is required to direct its policy towards securing that the citizens have equal right to an adequate means of livelihood; that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; that there is no concentration of wealth and means of production to the common detriment; and that there is equal pay for equal work.13 The state is obligated to provide for education and assistance in old age, in unemployment and in other contingencies.14 The state is to provide for free and compulsory education for children up to the age of fourteen years.15 Further, in interpretation of the law and the Constitution, the judiciary does at times take note of the ideals of a social welfare state even though some of these ideals may not be expressly incorporated in the Constitution.16 The emergence of the social welfare concept has affected all the democracies very profoundly. It has led to state activism. A phenomenal increase in the area of state operations has occurred in the 20th century; the state has taken over a number of functions which were previously left to private enterprise. The state to-day pervades every aspect of human life; it runs buses, railways and postal services; it undertakes planning of social and economic life of the community with a view to raise the living standards of the weaker sections of the people and reduce concentration of wealth; it improves slums, plans urban and rural life, and looks after health, morals and education of the people; it generates electricity, works mines and operates key and important industries. It acts as an active instrument of socio-economic policy, regulates individual life and freedom to a large extent, provides many benefits to its citizens, and imposes social control and regulation over private enterprise. The functions of a modern state may broadly be placed into five categories, viz., the state as protector, provider, entrepreneur, regulator, and arbiter.17 As protector, the state protects the country against external aggression and internal disorder. As provider, the state provides social security, social welfare and a minimum standard of living to all. As regulator, the state regulates and controls various activities of the community. Urban and town planning, environmental control, regulation of economic activities fall under this head. As entrepreneur, the state engages in public enterprise. As an umpire, the state arbitrates between competing social interests in the society. The state has to ensure minimum fairness and maintain a reasonable balance between the different economic and social groups in the community. The state regulation has been taken to such an extent that Maine's classic generalization that the movement of progressive societies has been from status to contract18 has all but been reversed in our day. In many ways, the contemporary societies have reverted more or less to the medieval concept of status.19 The twentieth century has seen a decline in the importance of the institution of contract. Many relations are no longer governed by contract. Government largely allocates resources in the economy and effectively manipulates

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the market, by price contracts, wage controls and other legal and fiscal arrangements. Growth of state activism has inevitably increased the number of situations where relations between the citizen and public authority are governed by public law rather than private law. Consequently, private law is giving place to public law; contract law to administrative law. According to Atiyah:20 ". . . much administrative law now governs exchange relationships of a non-market character, and the distinction between market and non-market relationships ends in a murky grey area where contractual and administrative law ideas struggle for paramountcy". Taking the scene nearer home, the ideal of a social welfare state is sought to be translated into practice through state planning of economic resources and social control of private enterprise with a view to create a socialistic pattern of society which involves improving the economic conditions of the poor, keeping in view the demands of social justice; and all resources of the community are organised and husbanded with that end in view. A large number of government enterprises have thus come into being; some key industries, financial institutions and transport services have been nationalised;21 a rigorous system of state control and regulation of private enterprise has been created;22 the state plays a major role in promoting socio-economic welfare of labour by regulating the employer-employee relationship and by other means;23 increasing provision is being made by the state for social services, such as, education, housing, health, family welfare; the state undertakes to supply food and other essential commodities to the people at reasonable prices. The state has now become a major source of wealth.24 This state activism has led to one inevitable result. In its quest to improve physical, moral and economic welfare of the people, the state has assumed more and more powers to regulate society. Traditionally, the government of a country is divisible into three organs--legislature, judiciary and executive. While increase in state activities has meant increased work for all the organs--the legislature has to enact newer and newer laws to give effect to newer and newer socio-economic schemes, and the Courts have to interpret these laws and adjudicate upon more and more disputes generated by these laws--yet the largest extension in depth and range of functions and powers has taken place at the level of the executive-cum-administrative organ. We have come to live in an administrative age; administrative organ has become predominant and still it is on the ascendancy; its functions and powers have grown vastly over time. Administration is the all-pervading feature of life to-day; the hegemony of the executive is now an accomplished fact. It makes policies, provides leadership to the legislature, executes and administers the law and takes manifold decisions. It exercises to-day not only the traditional functions of administration, but other varied types of functions as well. It exercises legislative power and issues a plethora of rules, bye-laws, and orders of a general nature. This is designated as delegated or subordinate legislation. Delegated legislation has assumed more importance, quantitatively and qualitatively, than even the legislation enacted by the legislature.25 No law enacted by the Legislature is complete and several details need to be filled in through delegated legislation. To-day, not all disputes are decided by the Courts in the traditional manner. The administration has acquired powers of adjudication over disputes not only between itself and private individuals but also between private individuals inter se, and thus have emerged a plethora of tribunals, apart from other innumerable adjudicative bodies, diversified in structure, jurisdiction, procedures and powers, connected with the administration in varying degrees and pronouncing binding decisions like the courts whose powers have been diluted or excluded in several areas.26 The Administration has secured extensive powers to grant, refuse or revoke licences, impose sanctions and take action of various kinds in its discretion or subjective satisfaction.27 To enable the Administration to discharge effectively its rule-making, adjudication and other discretionary and regulatory functions, it has been given vast powers of inquiry, inspection, investigation, search and seizure, and supervision.28 The administrative machinery has vastly proliferated. The administrative organs are variously designated as departments, directorates, boards, commissions, authorities, bureaus, officers, tribunals, public corporations, government companies etc.. The truth is that in modern democratic societies, the administration has .acquired an immense accession of power and has come to discharge functions which are varied and multifarious in scope, nature and ambit. In the Words of Robson, the hegemony of the executive is now an accomplished fact.29 Extension in functions and powers of the Administration has become a desideratum as most of the contemporary complex socio-economic problems can be tackled best, from a practical point of view, only by administrative process instead of the normal legislative or judicial process. A legislative body is best suited to determining the direction of major policy but it lacks time, technique and expertise to handle the mass of

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details. The legislature has to content itself more and more with laying down broad policies and leaving the rest to the Administration, and thus has arisen the practice of delegated legislation. Administrative adjudication has arisen largely because the multitude of cases arising for adjudication under the modern legislation need to be decided expeditiously with the least formality and technicality, at less cost, and by persons having specialised skills to handle such cases. The courts are not in a position to fulfil these conditions and so the administrative tribunals have come into vogue.30 Reliance has come to be placed in the administrative process as it is felt that the complex problems of to-day can best be solved that way. Administrative process is comparatively flexible, less formal, and expeditious and hence the proliferation of administrative process. Another advantage of the administrative process is that it could evolve new techniques, processes and instrumentalities, and acquire expertise and specialisation, to meet and handle new complex problems of modern society. Administration has become a highly complicated job needing a good deal of technical knowledge, expertise and know-how. Continuous experimentation and adjustment of detail has become an essential requisite of modern administration. If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from experience has to be supplied. Even a well-tested rule may have to be changed because of the rapidly changing situation in a developing or a developed society. The Administration can change an unsuitable rule without much delay. Even if it is dealing with a problem case by case (as does a Court), it could change its approach according to the exigency of the situation and the demands of justice. Such a flexibility of approach is not possible in the case of the legislative or the judicial process. Again the judicial process in which decisions are made after hearing and on the basis of evidence on record is not suited to deciding matters involving wide discretion to be exercised on the basis of particular departmental policy, position of finance, priorities and allocations between competing claims. In many cases, preventive administrative action may prove to be more effective and useful than punishing a person later for a breach of law. Thus, inspection and grading by the state would answer the consumer's needs more adequately than prosecuting the seller for adulteration later after the injury has been done to the consumer by unwholesome food. All this has resulted in a proliferation of bureaucracy and administrative process.31 Administration has assumed such an extensive, sprawling and varied character, that it is not now easy to define the term "Administration" or to evolve a general norm to identify an administrative body. It does not suffice to say that an administrative body is one which administers, for the administration does not only put the law into effect, but does much more than that; it legislates and adjudicates. At times, Administration is explained in a negative manner by saying that what does not fall within the purview of the legislature or the judiciary falls within the purview of the Administration. 2. FUNCTION OF ADMINISTRATIVE LAW In such a context, a study of Administrative Law becomes a matter of great significance. The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. The modern administration impinges more and more on the individual. It has assumed a tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person's existence when he is not in contact with the Administration in one way or the other. While development of administrative process is inevitable in modern times, it also creates the concomitant problems of infringement of the rights of the individual unduly, of misuse of power by the Administration. This circumstance poses a basic and critical question for administrative lawyers, viz.: how to control administrative power? It thus poses the eternal problem of devising proper safeguards subject to which bureaucracy must exercise its powers. A host of questions thus arise. Does arming the Administration with more and more powers keep in view the interests of the individual? Are adequate precautions being taken to ensure that the Administration does not misuse or abuse its powers? Do the administrative agencies follow in discharging their functions such procedures as are reasonable, consistent with the rule of law, democratic values and natural justice? Has adequate control-mechanism been developed so as to ensure that the administrative powers are kept within the bounds of law, and that it would not act as a power-drunk creature, but would act only after informing its own mind, weighing carefully the various issues involved and balancing the individual's interest against the needs of social control? It has increasingly become important to control the Administration, consistent with

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efficiency, in such a way that it does not interfere with impunity with the rights of the individual. There is an old adage containing a lot of truth that power corrupts and absolute power corrupts absolutely. Between individual liberty and government, there is an age-old conflict. As Locke said in the 17th century: "Wherever law ends, tyranny begins." There thus arises the need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between private interest and public interest. It is the demand of prudence that when sweeping powers are conferred on administrative organs, effective control-mechanism be also evolved so as to ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose. It is the task of Administrative Law to ensure that the governmental functions are exercised according to law, on proper legal principles and according to rules of reason and justice; that adequate control-mechanism, judicial and others, exist to check administrative abuses without unduly hampering the Administration in the discharge of its functions efficiently. Thus, the objectives of Administrative Law are to ensure legal control of the administrative power and to provide protection to the individual against abuse of such power. It is the basic philosophy of Administrative Law that the Administration must have lawful authority to do what it seeks to do. "The powerful engines of authority must be prevented from running amok."32 Administrative Law seeks to adjust the relationship between public power and individual rights.33 Administrative Law is the best designation for the system of legal principles which settle the conflicting claims of executive and administrative authority on the one side and of individual or private right on the other.34 It is the function of Administrative Law, in a democratic society, to draw a fine balance between the conflicting claims of the individual and the Administration. Of course, in securing this balance, the needs of efficient administration are to be duly taken note of. But efficiency of administration though desirable cannot be the only yard-stick of good administration. Fairness to the individual concerned is also a value to be achieved along with efficient administration. A fair administration is really good administration. As the Kerr Committee in Australia has emphasized: "... although administrative efficiency is a dominant objective of the administrative process, nevertheless the achievement of that objective should be consistent with the attainment of justice to the individual."35 Schwartz describes the function of Administrative Law in a different way. In an Administrative Law case, the private party is confronted by an agency of government endowed by all the power, prestige and resources enjoyed by the possessor of sovereignty. "The starting point is the basic inequality of the parties. The goal of administrative law is to redress this inequality-to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice."36 In reality there is no antithesis between a strong government and controlling the exercise of administrative powers. Administrative powers are exercised by thousands of officials and affect millions of people. While the Administration has the capacity to do a lot of good to the people, it also has the capacity to do a lot of damage to the rights and interests of the individuals. As Justice Douglas of the U.S. Supreme Court once said: "Absolute discretion, like corruption, marks the beginning of the end of liberty."37 Maladministration results in weakening and not in strengthening the government as people get alienated from it. Thus, it becomes necessary to ensure that powers are exercised properly and for the purposes for which these are conferred. Administrative efficiency cannot be the end-all of administrative powers. There is also the question of protecting individual's rights against bad administration. It is necessary to have good administration, and a fair administration will lead to good administration. A democracy will be no better than a mere facade if the rights of the people are infringed with impunity without affording them proper redressal mechanism. An important function of Administrative Law is to ensure that when the Administration oversteps its authority or acts unlawfully, the citizen should have an effective remedy at his disposal. The need for a proper system of Administrative Law is no less urgent in a parliamentary system of government. Here the legislative control over the Administration is not very effective because the party system gives to the government of the day a tremendous hold over the legislature.38 Therefore, parliamentary control needs to be supplemented by additional control mechanism. In addition, there is the question of widespread bureaucratic corruption.39 Broad and uncontrolled discretionary powers conferred on administrators have inherent seeds of corruption for, in the absence of guiding norms to regulate the exercise of such powers and an effective supervisory mechanism, there may be no way to assess whether a particular decision arrived at by an administrator is bona fide or is motivated by some corrupt consideration. It will be extremely difficult, if not impossible, to contain corruption in a country where uncontrolled powers are conferred on administrators.40 A proper system of Administrative Law may help in averting this danger to a great extent.

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This makes the study of Administrative Law important in every country. For India, however, it is of special significance because of the proclaimed objective of the Indian polity to build up a welfare and egalitarian society. This has generated administrative process, and hence administrative law, on a large scale. Administration in India is bound to multiply further and at a quick pace. A strong desire for rapid development has its own dangers and pitfalls. A country in which the roots of democracy are not very deep, a strong bureaucracy may have the tendency to ride rough-shod over the rights of the people. If exercised properly, the vast powers of the Administration may lead to a welfare state; but, if abused, they may lead to administrative despotism and a totalitarian state.41 A careful and systematic study and development of Administrative Law becomes a desideratum as Administrative Law is an instrument of control of the exercise of administrative powers. 3. DEFINITION, NATURE AND SCOPE OF ADMINISTRATIVE LAW It is difficult to evolve a satisfactory definition of Administrative Law so as to demarcate articulately its nature, scope and content. There are many formulations in the field, but none of them is completely satisfactory; either they are too broad or too narrow; either they include much more than what properly should be included within the scope of the subject, or else, they leave out some essential aspects or elements of Administrative Law. The American approach to Administrative Law is denoted by the definition of Administrative Law as propounded by the leading scholar, Kenneth Culp Davis. According to him, Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. It does not include the enormous mass of substantive law produced by the agencies. An administrative agency, according to him, is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rule-making. Davis goes on to observe further: "Apart from judicial review, the manner in which public officers handle business unrelated to adjudication or rule-making is not a part of administrative law; this means that much of what political scientists call "public administration" is excluded.42 He says that emphasis of Administrative Law is on administrative process--procedures for formal adjudication and for rule-making. It also studies such incidental matters as investigating, supervising, prosecuting, negotiating, settling, or informally acting. The difficulty in this formulation of Administrative Law is that, on the face of it, it does not include the consideration of purely discretionary functions (which may be called administrative) not falling within the category of legislative or quasi-judicial. In modern Administrative Law, discretionary administrative functions are vast in scope and range. The control-mechanism of these functions constitutes an important subject for study in modern Administrative Law. In the U.S.A., some of these functions are included under the two categories mentioned above. In the U.S.A., the term 'adjudication' is given a very broad connotation. 'Adjudication', according to Davis, includes "all that goes into the decision of a case, including policy making and administrative functions." The main reason for the lack of distinction between 'adjudicative' and 'administrative' functions arises because of the 'due process of law' concept contained in the V and XIV Amendments of the Constitution. Thus, an 'administrative' power becomes 'adjudicative' as 'fair hearing' is a must in most of the situations.43 Nor does the above formulation of an administrative agency appear to be exhaustive as it seeks to exclude agencies having administrative authority pure and simple not having adjudicative or legislative functions.44 Further, the emphasis in the definition is on judicial control of administrative agencies. But other control mechanisms, like the parliamentary control of delegated legislation, control through administrative appeals, and through the ombudsman type institution, are quite important and significant and need to be studied for a fuller comprehension of Administrative Law. In England, Dicey defined Administrative Law as denoting that portion of a nation's legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities are enforced.45 This definition is narrow and restrictive in so far as it leaves out of consideration many aspects of Administrative Law, e.g., it excludes many administrative authorities which, strictly speaking, are not officials of the state such as public corporations; it also excludes procedures of

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administrative authorities, or their various powers and functions, or their control by Parliament or in other ways. Dicey's for-mulation refers primarily to one aspect of Administrative Law, i.e., judicial control of public officials. Dicey formulated his definition with the droit administratif in view. Dicey's main concern was judicial remedies against the Administration and so he gave a restricted interpretation to Administrative Law.46 The modern British approach to Administrative Law is depicted by the following definition formulated by Sir Ivor Jennings: "Administrative law is the law relating to the Administration. It determines the organisation, powers and duties of administrative authorities."47 This is the most commonly accepted view and has been adopted with slight verbal changes, by many leading British scholars of to-day. For example, Wade and Phillips define Administrative Law much on similar lines: "Administrative law is a branch of public law which is concerned with the composition, powers, duties, rights and liabilities of the various organs of government which are engaged in administration".48 Jennings' definition is fuller in one respect as compared to that of Davis; it includes "administrative powers" which Davis seems to include within the two headings of legislation and adjudication, but does not mention them separately as such. In one respect, however, Jennings' definition falls short of Davis' formulation. While Davis lays emphasis on procedures used by administrative agencies in exercising their powers, Jennings does not mention administrative procedures directly and specifically; he only leaves them to be implied from such broad words as "organisation, powers and duties," and this appears to constitute a basic difference between the present-day American and the English approaches to Administrative Law.49 Until recently there appeared a basic difference in the approaches of the American and the English Administrative lawyers. The English Administrative Law did not lay so much emphasis on procedures of administrative bodies as did the American Administrative Law.50 This feeling led to the enactment of the Federal Administrative Procedure Act in 1946 in the U.S.A.51 This Act lays down minimum procedures which the American administrative agencies are required to follows.52 Similar legislation has been enacted in a number of States. It is, however, necessary to underline the importance of procedures in Administrative Law. In a democratic set-up, administrative procedures have to be democratic; the affected interest groups should get a participation not only in the policy-making but even in the administration of policies. The current thinking is that procedures have great significance in Administrative Law because proper procedures are necessary for proper discharge of administrative powers and that it is in the area of procedures that safeguards can be incorporated for the individual against the administrative process with any success rather than seeking to control administrative power through other means. Evolution of fair procedures is thus necessary to minimise the abuse of administrative powers. Therefore, the basic question at the present time is: how can the legal ideas of fair procedure and just decision be infused into the exercise of administrative powers by the state and its instrumentalities? This approach promises greater success than the attempt to control the administration through the courts. It is this realisation which has led the American administrative lawyers to place emphasis upon procedural safeguards to ensure a proper exercise of the administrative power. Lately, thinking in England has also started along these lines as is evidenced by the fact that the Franks Committee investigated rather elaborately into the working of various tribunals and quasi-judicial bodies, and as a result thereof, a number of procedural improvements have been effected into the working of the whole system.53 Presently, more attention is being devoted in England to a study of administrative procedure. As a result, some studies devoted to administrative procedures have made their appearance.54 Two other criticisms have been levied against Jennings' definition by Griffith and Street, leading exponents of Administrative Law in England. First, the Jennings' definition does not attempt to distinguish Constitutional Law from Administrative Law, as the former "in its usual meaning has a great deal to say concerning the organisation of administrative authorities." In another sense also, "this is a very wide definition, for the law which determines the powers of these authorities must include, for example, the provisions of Acts relating to public health, housing, town and country planning, the National Coal Board and the personal health services. Indeed, almost every statute affects to some extent the powers and duties of administrative authorities."55 Though Administrative Law may not be concerned with the substantive law as such, yet, as Griffith and Street themselves have somewhat recognised56 a study of substantive law becomes necessary for appreciating the powers of the Administration and for controlling the same. For instance, whether the principles of natural justice are to be observed by an authority or not depends, to a great extent, upon the kind of action it is empowered to take, and to find this, one will need to look into the statute under which it functions.57 Again, whether the authority has abused its power, e.g., it has acted on irrelevant consideration,

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etc.58 has to be decided with reference to the substantive provisions. A limitation, which appears to be necessary to impose on the expression "law of the administration," the phrase used by Jennings in his formulation, is that matters of purely internal administration and management of an administrative agency should be excluded from the purview of the Administrative Law. Such matters as recruitment of staff members by an agency, matters of their leave, promotion, gradation rules, etc. are matters which fall more properly within the area of public administration and not so much within the compass of Administrative Law. The reason is that these matters pertaining to the internal functioning of an administrative agency do not very much impinge on the private citizen in his dealings with the agency concerned.59 But, of course, a study of the general structure of an agency concerned may often become necessary to assess whether the power has been exercised objectively and without bias and by a duly authorized official. Again, how much control-mechanism exists within the department or an agency can be found out only from a study of its structure. A more satisfactory and a proper formulation to define the scope, content and ambit of Administrative Law appears to be as follows: Administrative Law deals with the structure, powers and functions of the organs of administration; the limits of their powers; the methods and procedures followed by them in exercising their powers and functions; the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation. This statement has four limbs. The first limb deals with the composition and powers of the organs of administration. This proposition is subject to the qualification stated earlier that the topics falling under the rubric of public administration are to be excluded from a discussion on Administrative Law. The term 'organs of administration' includes all kinds of public or administrative authorities. Vast powers are being conferred on the Administration through legislation. In innumerable cases, the courts have legitimized the conferment of broad powers on administrative authorities. The second limb refers to the limits on the powers of administrative authorities. Just as the Administration needs powers to reach the goals of the modern state, so must the powers be subject to some limitations to develop a balanced administrative system. It is necessary to have safeguards and standards subject to which the Administration must act. Otherwise, there may be maladministration, administrative injustice and undue denial of individual rights. These limits may either be express or implied. The express limits are laid down in statutory norms. The implied limits are derived by the courts by the interpretative process. This is the most significant and creative aspect of Administrative Law as express limits are not usually laid down. The third limb refers to the procedures used in exercising those powers. The study of Administrative Law of to-day seeks to emphasize not only the extraneous control but also the internal processes and procedures which the administrative authorities themselves follow in the exercise of their powers. Evolving of fair procedures is a way of minimising the abuse of vast discretionary powers conferred on the Administration. For example, in the area of delegated legislation, emphasis is being laid on the consultative procedure;60 natural justice forms a significant component of administrative process to-day and in many situations courts apply the concept of "fairness".61 The Supreme Court of India has also underlined the importance of procedures. The Court has observed, 'It is procedural rules which infuse life into substantive rights, which activate them to make them effective.'62 The fourth limb refers to the control of the administration through judicial and other means. Under this head would fall judicial as well as extra-judicial means of controlling the administration, e.g., tribunals, ombudsman, etc. This heading also lays emphasis on redressal_ of individual grievances through the court and other processes. This is a very important aspect of Administrative Law. This aspect of Administrative Law is based on three basic propositions, viz.: (i) power is conferred by law; (ii) no authority can exceed its power; and (iii) no power is absolute and uncontrolled. The control and redressal aspects are the most significant features of Administrative Law. All the three prior limbs in reality converge at this point. In the modern onslaught of an ubiquitous Administration, the individual is affected in many ways in the name of "public good" and "public interest". The individual is in the weakest defensive position against the mighty power of the Administration. It is, therefore, the important function of Administrative Law to ensure that government's powers are exercised according to law, on proper legal principles, according to the rules of reason and justice; and not at the mere caprice or whim of administrative officers, and that the individual has adequate remedies when his rights are infringed by the Administration. There is perennial quest in the

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common law world to achieve this ideal.63 Some of the traditional means of control have been found to be wanting. As for example, the concept of collective responsibility of the Cabinet to the Parliament64 does not provide an adequate safeguard to the citizen for several reasons: (1) the Cabinet enjoys majority support in Parliament; (2) the parliamentary procedures are such that a matter of individual grievance can be raised on the floor of the House with great difficulty; (3) members of Parliament have no access to departmental files and thus have meagre knowledge of day to day administration; (4) ministers do not have control over every detail of administration and departmental officials dispose of large number of cases without any reference to the minister;65 (5) modern party system gives to the government of the day a tremendous hold over the legislature.66 Therefore, it has been found necessary to search for other controls and not depend solely on Parliament for the purpose. Judicial control plays a significant role in keeping the Administration within due limits but even this has several lacunae.67 Thus search for other methods to control the Administration goes on.68 It is well to remember that democracy is sustained not merely by conferring large powers on the Administration but also by devising proper checks and balances subject to which the bureaucratic power is to be exercised. It will become merely a facade democracy if rights and liberties of the people are infringed by the Administration with impunity without affording them any redress. Conferring large powers on the Administration may be justified only if control-mechanism is improved and due administrative procedures are devised. Such an ideal can be achieved by strengthening the remedies and reliefs against the Administration which an individual may invoke when he is adversely affected by a particular administrative action. This is a constant quest and improving the redressal mechanism against the administrative machinery is a dynamic process. Without a well developed system of Administrative Law, democracy will lose much of its true content. From this point of view, there is presently a ferment in the common-law world in the area of Administrative Law and new trends are becoming visible. Many common-law countries have been engaged for some time now in the exercise of improving and reforming their own system of Administrative Law which is in a state of flux at present in the common-law world. Official bodies have been appointed to study and make suggestions for improvement of Administrative Law. Some of the suggestions made by these bodies have been implemented and others are in the process of being implemented. Standing bodies have been created to keep administrative procedures constantly under review and make suggestions to improve them. Such an effort is lacking in India. In India only the courts act as a control mechanism vis-a-vis the Administration. The courts have played a creative role to some extent in this area. The courts have made several landmark pronouncements displaying a law-creative role of a high order. But judicial process has its own limitations. The courts seek to do justice from case to case. Therefore, the emphasis is on deciding individual cases rather than on the creation of general legal principles. In reconciling the public and private rights by and large the courts take a pragmatic view of the matter rather than a theoretical view. As Krishna Lyer, J. emphasized in Gujarat Steel,69 "law is not dogmatics but pragmatics", or as Bhagwati, J. said in Maneka Gandhi70 that law is not logic but experience. Judicial creativity therefore may lead to some outstanding Judicial pronouncements in individual cases but emergence of a systematic, coherent body of legal principles is difficult through judicial process. Legislation may have to be undertaken to achieve such a result. Therefore, it seems time has come when in India also an over-all review of the Administrative Law ought to be undertaken.71

1 Vanderbilt's Introduction to Schwartz, French Administrative Law and the Common Law World, xiii (1954). 2 Parker, The Historic Basis of Administrative Law, 1 Rutg. L.R., 449 (1958). 3 See Shamasastry, Kautilya's Arthasastra, 56-75 (1961); Kane, History of Dharmasastra, Vol. 1, 201 (1968); Jayaswal, Manu and Yajnavalkya, 9, 92-101 (1930). 4 Majumdar, Problems of Public Administration in India, 11 (1952); A.K. Chanda, Indian Administration, 15-42 (1965). 5 For further discussion on this point, see Chapter II, infra. 6 Reference has been made to this Act at several places in the following pages. Besides the NSA, there are two other central

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statutes on preventive detention dealing with economic matters. The Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (Cofeposa, for short) provides for preventive detention on grounds of conservation of foreign exchange and prevention of smuggling of goods. The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 is directed against persons committing acts prejudicial to the maintenance of essential commodities, as defined by the Essential Commodities Act, 1955, to the community. 7 Dicey, Law and Public Opinion in England, 126-210, 212-302 (1962); Jethro Brown, The Underlying Principles of Modern Legislation, 156-280 (1971); Friedmann, Law in a Changing Society, 1-11, 38, 347 (1959). 8 Dicey, Law and Public Opinion in England, at 212-302 (1962). DICEY wrote in 1914 that 'by 1900, the doctrine of laissez faire, in spite of the large element of truth which it contains, had more or less lost its hold upon the English people.' Ibid. at XXXI. 9 Maclver, The Web of Government, 236 (1965); Robson, Justice and Administrative Law, 33 (1951); Prettyman, Nature of Administrative Law, 44 Virginia L.R. 685, 696 (1958); Calvin Woodard, Reality and Social Reform: The Transition from Laissez Faire to the Welfare State, 72 Yale L.J. 286 (1963); Friedmann, The State and the Rule of Law in a Mixed Economy, (1971). 10 Maclver, The Modern State, 460 (1964). 11 Preamble to the Constitution. 12 See, Jain, Indian Constitutional Law, Chapter 29 (1987). Also, Chapter II, infra. 13 Art. 39. 14 Art. 41. 15 Art. 45. 16 Mukherjea, C.J., in Ram Jawaya v. Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123], 533 : 1955 (2) SCR 225 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]; Crown Aluminium Works v. Workmen, AIR 1958 SC 30 [LNIND 1957 SC 106] [LNIND 1957 SC 106] [LNIND 1957 SC 106]: 1958 (1) LLJ 1 : 1958 SCR 651 [LNIND 1957 SC 106] [LNIND 1957 SC 106] [LNIND 1957 SC 106]; Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]. These ideals have been put into force in recent years more actively through a string of public interest litigation cases--reference to which has been made in later pages. See, infra, Judicial Control. 17 See Friedman, The State and the Rule of Law in a Mixed Economy 3 (1971). 18 Ancient Law, 170. 19 See, Bernard Schwartz, Crucial Areas in Administrative Law, 34 George Washington L.R. 401 (1966). 20 Atiyah, The Rise and Fall of Freedom of Contract, 717 (1979). 21 Infra, last Chapter. 22 To name only, a few statutes in the area: The Industries (Development and Regulation) Act, 1951;The Essential Commodities Act, 1955; The Foreign Exchange Regulation Act, 1973; The Imports and Exports (Control) Act, 1947; The Companies Act, 1956; The Monopolies and Restrictive Trade Practices Act, 1969; various statutes for regulating specific commodities, e.g., The Tea Act, 1953; The Coffee Act, 1942; The Rubber Act, 1947; The Coir Industry Act, 1953; The Cardamom Act, 1965; and the Tobacco Act, 1975. A huge bureaucratic apparatus has been created to implement these laws and thus a lot of administrative law is created in the process. See, Indian Law Institute, Administrative Process under theEssential Commodities Act, 1955 (a study by M.P. Jain, 1963). For some excerpts from this book, see, Jain, Indian Administrative Law: Cases & Materials (hereinafter cited as Jain, Cases), chapter 1 (1994). Also, Indian Law Institute, Government Regulation of Private Enterprise (1971). 23 Some of the important enactments in this area are: The Industrial Disputes Act, 1947; The Employees State Insurance Act, 1948; The Factories Act, 1948; The Minimum Wages Act, 1948; The Payment of Bonus Act, 1965; The Payment of Wages Act, 1936; and The Workmen's Compensation Act, 1923. 24 CHARLES A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965), and also, The New Property, 73 Yale L.J. 733 (1964). Reich states in the New Property: 'One of the most important developments in the United States during the past decade has been the emergence of government as a major source of wealth. Government is a gigantic syphon. It draws in revenue and power; and pours forth wealth: money, benefits, services, contracts, franchises and licences. Government has always had this function. But while in early times it was minor, today's distribution of largess is on a vast, imperial scale'. The new Property, 73 YALE L.J., at 733. Also see, infra, Government Contracts. 25 Infra, Chapters III, IV and V. 26 Infra, Chapters IX-XIV. For a study of some of these tribunals, see Chapter XIII, infra and S.N. Jain, Administrative Tribunals in India (1977); Jain, Cases, Chapters XII and XIII. Also see, Street, Justice in the Welfare State (1975); J.A. Farmer, Tribunals and Government (1974).

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27 Infra, Chapters XVII, XVIII, XIX. 28 Infra, Chapters XVI. 29 Robson, Justice and Administrative Law. 34 (1951). See also, Ramaswamy, Rule of Law in a Planned Society, 1 J.I.L.I., 31 (1959); HARRY W. Jones, The Rule of Law and the Welfare State, 58 Col LR, 143 (1958). 30 Julius Stone, The Twentieth Century Administrative Explosion and After, (1964) 52 California L.R., 513. 31 For this purpose, see M.P. Jain, Indian Administrative Law : Cases and Materials, Chapter 1. 32 Wade, Administrative Law, 5 (1988). 33 Griffith and Street, Principles of Adnrinistrative Law, 2 (1973). 34 Freund, Cases on Administrative Law, (1911). 35 Commonwealth Administrative Committee, 3 (1971); Wade, Towards Administrative Justice, 11 (1963). 36 Schwartz, Administrative Law, 26 (1976). 37 New York v. United States, 342 U.S. 882, 884. 38 Keeton, The Passing of Parliament, 56-63 (1954); F.A.H. Birch, Representative and Responsible Govt., 137 (1964). For a discussion of the Parliamentary system in India, see, Jain, Indian Constitutional Law, Chapters 2 and 3. 39 See in this connection the observations of Justice IYER in the Fertilizer Corporation case, AIR 1981 SC 344 : 1981 (1) LLJ 193 : (1981) 1 SCC 568 [LNIND 1980 SC 455] [LNIND 1980 SC 455] [LNIND 1980 SC 455]; infra, Vol. II. 40 As Wheare observes in Maladministration and its Remedies, 7 (1973): 'We would also regard as falling within the scope of maladministration actions which were influenced by what is loosely described as bribery and corruption. In most cases this would amount to a form of illegality, but there can be examples where influence may be used to persuade officials either to act or not to act in an area where they have discretion but where, though it might not be clear that illegality was involved, it could be urged that maladministration had occurred.' 41 See, Denning, Freedom under the Law, 126 (1949). 42 Davis, I Administrative Law Treatise, 1-3 (1959); Davis, Administrative Law Cases--Text-Problems, 1 (1977). Schwartz also maintains that 'it is through its exercise of rule-making and adjudicatory authority that the administrative agency is able to determine private rights and obligations': Administrative Law, 7 (1976) . 43 See, Davis, English Adm. Law--An American View, (1962) , Public Law, 139. 44 In the U.S.A., extensive use is made of independent regulatory commissions having powers of administration, legislation, adjudication, regulation, prosecution, investigation etc. Such a body is by and large independent of the government and has power to determine private rights either by rule or decision. American Administrative Law concentrates mostly on such bodies. See, Schwartz, Administrative Law(1976); also, Case-book, 7-20 (1988); Report of U.S. Attorney-General Committee on Administrative Procedure, 7 (1941); Schwartz and Wade, Legal Control of Government, 26 et. seq. (1972) . 45 Law of the Constitution, 329-33 (8th ed.). 46 Infra, next Chapter. 47 Jennings, The Law and the Constitution, 217 (5th ed., 1959). 48 Constitutional Law, 547 (1977). Also see, Wade, Adm. Law, 4-6 (1988). 49 See the criticism by DAVIS of H.W.R. Wade's book on Administrative Law from this angle: English Administrative Law, An American View, 1962 Public Law, 139 Also see, infra, this Chapter. 50 SCHWARTZ says: "The focus to-day is the administrative process itself--upon the procedures which administrative agencies must follow in exercising their powers:" Administrative Law, 3 (1976). 51 For comments on this Act, see infra. 52 Infra, Chapter II. For comments on the Administrative Procedure Act, see, Nathanson, Some Comments on the Administrative Procedure Act, 41, Ill. L.R. 368 (1946-47). 53 See, infra. Also, Jain, Cases, Chapter XII, Sec. B. 54 See, Ganz, Administrative Procedures (1974). It focuses attention on 'non judicial' administrative procedures which regulate an ever increasing area of decision-making by administrative authorities.

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55 Principles of Adminisntrative Law, 3 (1973). 56 Principles of Administrative Law, at 5 (1973). 57 Infra, Chapter IX. 58 Infra, Chapter XIX. 59 In India, however, in a number of cases, problems of Administrative Law have been raised in such matters as appointment, promotion, compulsory retirement, dismissal of employees of administrative bodies. These cases are noted at several places in the following text. This means that the area of public administration beyond the reach of Administrative Law has been shrinking over time. 60 Infra, Chapter VI. 61 Infra, Chapter IX. 62 Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622 [LNIND 1980 SC 287] [LNIND 1980 SC 287] [LNIND 1980 SC 287], 1623 : (1980) 4 SCC 162 [LNIND 1980 SC 287] [LNIND 1980 SC 287] [LNIND 1980 SC 287] : 1980 Crlj 1075. 63 Infra, Chapter II. 64 For "collective responsibility", see, M.P. Jain, Indian Constitutional Law, 102. Lord Hailsham has characterised the cabinet system as "elected dictatorship": The Dilemma of Democracy, 107 (1978). 65 Infra, Chapter XXI. 66 Keeton, The Passing of Parliament, 56-63 (1954); also, Jain, Indian Constitutional Law, 106-108. 67 Infra, under Judicial Control. 68 Infra, Chapter II. Also see under Ombudsman, infra. 69 Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]: (1980) 2 SCC 593 : 1980 (1) LLJ 137 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]. 70 Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 71 See, infra, next Chapter. For further discussion on this development see, Jain, Changing Face of Administrative Law (1982); Jain, The Evolving Indian Administrative Law (1983). The Law Commission in XIV Report did make some reference to some aspects of Indian Administrative Law.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER II SOME CONSTITUTIONAL PRINCIPLES AND THEIR IMPACT ON ADMINISTRATIVE LAW

CHAPTER II SOME CONSTITUTIONAL PRINCIPLES AND THEIR IMPACT ON ADMINISTRATIVE LAW 1. RELATION BETWEEN CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW There is deep, intimate and abiding relationship between Constitutional Law and Administrative Law. Both are not only inter-related, but belong to one and the same family, one genus, as both are laws governing or regulating the state. Both deal with the powers and functions of the government; the function of both is to diffuse powers of the state and control them. Both are branches of Public Law and both supplement each other. The structure of the constitution of a country vitally affects the character of Administrative Law prevailing there. In any discussion on Administrative Law, there looms large in the background the Constitutional Law of the country which affects the complexion of Administrative Law. For instance, in

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England, certain basic concepts of Constitutional Law, such as, Sovereignty of Parliament, rule of law, ministerial responsibility, prerogatives of the Crown, position of the courts, do permeate and vitally affect the tone and character of Administrative Law. To some extent, the parliamentary system prevailing in India, judicial review and the Fundamental Rights therein, affect the character of the Indian Administrative Law. In the U.S.A., on the other hand, the doctrine of Separation of Powers, Presidential form of government, Fundamental Rights and Judicial Review of administrative action affect the character of Administrative Law. While strict demarcation between Constitutional Law and Administrative Law is not possible, still there exists an essential difference between the two. A practical way to distinguish between the two may be to say that while Constitutional Law deals mainly with the structures, organisation, powers and functions of the three apex organs of the government of a state, viz., the Legislature, Executive and the Judiciary, Administrative Law refers mainly to the operation of the Administration vis-a-vis the individual. Here the concern is much more with the exercise of statutory powers of the administrative authorities rather than with the organisation of the executive organ. The emphasis is more on its powers and functions in so far as these have an impact on the individual. The idea underlying Administrative Law is to evolve some principles for the exercise of powers and functions by the innumerable administrative bodies which are set up in the country to discharge the various and manifold functions which the state has now assumed. Administrative Law also seeks to emphasize upon the means of redress against these bodies in case a person feels aggrieved by any action of any such body. It may be said justifiably that Administrative Law deals with administrative authorities and administration at a lower level, while Constitutional law deals with the three top organs of the state, although some aspects of functioning of these organs are relevant to Administrative Law as well. Administrative law has a more functional bias. To take one simple example, the power of licensing is to-day a very commonly conferred power on administrative bodies. An administrative lawyer is interested in exploring what safeguards can be read into the law subject to which the licensing power is to be exercised when ex facie the law conferring the power prescribes no safeguards.1 Certain topics are discussed under Constitutional Law, and certain other topics under Administrative Law, and there is some common ground between the two. Over time, many developments have occurred in the range and scope of Administrative Law so much so that it has developed an identifiable personality of its own and has developed into a branch of law some what distinct from Constitutional Law, as the contents of this book will show. Administrative Law can no longer be treated as merely an appendage of Constitutional Law. Many topics are discussed under Constitutional Law which are not discussed under Administrative Law and vice versa. But, at the same time, the two act and react to some extent on each other. In a country like India having a written constitution, the scope of Constitutional Law is somewhat definitive and distinguishable from the rest of the legal system. Nevertheless, a student of Indian Administrative Law needs to have a good deal of knowledge of Indian Constitutional Law to better appreciate the nuances of Administrative Law as the Constitution being the fundamental law of the land conditions every law, much more Administrative Law. This will be evident from constant references made in the following text to certain provisions of the Constitution of India. 2. RULE OF LAW The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to law. Applied to the powers of Government, this requires that every Government authority which does some act which would otherwise be a wrong (such as taking a man's land), or which infringes a man's liberty (as by refusing him planning permission), must be able to justify its action as authorised by law--and in nearly every case this will mean authroised directly or indirectly by Act of Parliament. Every act of governmental power, i.e. every act which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree. The affected person may always resort to the Courts of law, and if the legal pedigree is not found to be perfectly in order the Court will invalidate the act, which he can then safely disregard.2 The concept of Rule of Law has had an abiding impact on the evolution of Administrative Law in the common-law world. DICEY expounded the concept of Rule of Law in relation to the British Constitutional Law. "Rule of Law", said DICEY in 1885, means "the absolute supremacy or predominance of regular law as

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opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government."3 He claimed that Englishmen were ruled by law and law alone; that no man was punishable merely by government's own fiat; he could be punished only for a distinct breach of law established in an ordinary legal manner before ordinary courts. DICEY denied that in England the government was based on exercise by persons in authority of wide, arbitrary or discretionary powers. While in many countries the executive exercised wide discretionary powers and authority, it was not so in England. DICEY asserted that "wherever there is discretion there is room for arbitrariness" which led to insecurity of legal freedom of the citizens. Another significance which DICEY attributed to the concept of Rule of Law was "equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts."4 In England, he maintained, no man was above law; every person whatever be his rank or condition, was subject to ordinary law and amenable to the jurisdiction of the ordinary courts. DICEY vehemently criticised the system of droit administratif prevailing in France. Under that system, there were separate administrative tribunals for deciding cases between the government and the citizens, and the officials, in their official capacity, were protected from the ordinary law of the land and from the jurisdiction of the ordinary courts, and were subject to official law administered by official bodies.5 DICEY characterised the French system as despotic and one designed to protect the guilty administrative officials. He went on to assert that in England there was nothing really corresponding to the "administrative law" or the "administrative tribunals" of France. The idea of having separate bodies to deal with disputes in which government is concerned, and keeping such matters out of purview of the common courts, asserted DICEY, was "utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs."6 This thesis of DICEY has had a tremendous impact on the growth of Administrative Law in England where people were not ready till very recently to accept that anything like the Administrative Law had come into being there. But DICEY'S thesis has been criticised by many from many angles. It has been said that even in 1885, DICEY'S postulates were not fully operative in England. DICEY was factually wrong in his analysis of the position in England as he ignored the privileges and immunities enjoyed by the Crown (and thus the whole government) under the cover of the constitutional maxim that the king can do no wrong. DICEY also ignored the many statutes which conferred discretionary powers on the executive which could not be called into question in ordinary courts. He also ignored the growth of administrative tribunals, quite a few of which had come into existence by 1885. Also, he misunderstood and miscomprehended the real nature of the French Droit Administratif. DICEY'S view that droit administratif was devised to give protection to, and confer privileges and arbitrary powers on, government officials and, therefore, it was inferior to the British system of ordinary courts deciding disputes between the citizen and the state,7 has also proved to be wrong and irrational in course of time. The truth is that in many respects, Droit Administratif has been found to be more effective in controlling the Administration and protecting the individual against it than the common-law system. After a careful study of the French system, many scholars have concluded that there the executive is controlled much more effectively than in England, and that a better safeguard against administrative excesses can be found by adopting some kind of an administrative court on the lines of the French model. The real test of a legal system is not whether courts decide all controversies or not, but whether it effectively controls administrative powers and whether it provides an effective redressal mechanism to the individual in case he feels aggrieved by administrative action. From this point of view, Droit Administratif has been found in some respects to stand on a higher footing than the common-law system of Administrative Law.8 DICEY was wrong in asserting that England had no Administrative Law. It is interesting to note that while DICEY was denying the existence of Administrative Law in England, his more perceptive contemporary, Maitland, was already emphasizing at that very time that Administrative Law had emerged in England.9 However, by 1915, after the famous Rice and Arlidge cases,10 DICEY himself came to admit, though reluctantly, that Administrative Law was growing in England as well. He noted that since the beginning of the XXTH century, a large number of duties had been imposed on government through parliamentary legislation which led to acquisition of powers, including judicial and quasi-judicial powers, by the government. The law

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of England was being officialized under the influence of socialistic ideas, said DICEY. He lamented that this transference of functions to government officials which in their nature belonged to the courts "saps the foundation of that rule of law which has been for generations a leading feature of the English constitution." But DICEY accepted its inevitability. Without this, many new functions being undertaken by government could not be discharged by it. DICEY accepted that conferment of judicial or quasi-judicial authority on officials was a "considerable step towards the introduction among us of something like the Droit Administratif of France." But he still maintained that the fact that the ordinary courts could deal with any actual and provable breach of the law committed by an official "still preserves that rule of law which is fatal to the existence of Droit Administratif."11 If DICEY'S formulations regarding the Rule of Law were not fully tenable in England in his own days, they are much less so to-day in England and other contemporary democratic societies based on the common-law system. Since the days of DICEY, things have changed demonstrably. DICEY deprecated Administrative Law as being inconsistent with the Rule of Law, but it has now developed into a fairly well-defined system in every country. Another grave defect in the Dicean analysis has been his characterisation of discretionary powers as being incompatible with the Rule of Law. DICEY insisted on the absence of not only 'arbitrary' but even of 'wide' discretionary powers. But the exigencies of modern government make wide discretionary powers inescapable. Every country has now witnessed the growth of such powers in abundance. Discretionary powers are a fact of modern life; it is not only not possible to do away with such powers but that such powers are indispensable in a modern industrialized welfare state. If, therefore, the Rule of Law negatives discretionary powers, then no modern democratic society has Rule of Law.12 Also DICEY was a great believer in ordinary courts. DICEY exhibited great trust in the efficacy of judicial control as a panacea for all administrative ills. He deprecated creation of tribunals at the cost of ordinary courts as amounting to negation of Rule of Law. But this has been proved to be a wrong assumption; tribunals have now proliferated in every country.13 It has come to be accepted that courts have only a limited efficacy in controlling administrative action. Judicial review is only peripheral in nature and the courts are not in a position to undertake review of administrative action in depth. But the fact remains that DICEY'S misplaced belief that so long as the courts exist, they can control the administration in all its actions, though not a correct assessment of the real situation, did stand in England in the way of adopting more efficacious, but extra-judicial, means of controlling administrative action. DICEY assumed that there should be complete equality between government and officials, on the one hand, and citizens, on the other. But the fact remains that government cannot be placed on an equal footing with the citizens in all respects. Government and its officials do enjoy many powers and privileges under the law which citizens do not. It is fallacious to place government and citizens on the same footing because inequalities between the two "are inherent in the very nature of political society."14 The fact of the matter, therefore, is that either we say that the Rule of Law prevails in no contemporary society or we emphasize upon the basic values inherent in the concept rather than merely on forms and structures. The latter course appears to be a more fruitful and meaningful line of approach in the modern context. In this way, Rule of Law will still have a great utility as a frame of reference, a touchstone, a standard, to test the Administrative Law prevailing in a country and then to orient our efforts to achieve those values and mould the forms and structures accordingly. This can be characterised as the positive side of the concept of Rule of Law. It has given to the common-law countries a philosophy to curb governmental powers and to keep the Administration within bounds. DICEY'S main emphasis in substance, on the whole, in his enunciation of Rule of Law is on the absence of arbitrary power, equality before law, and legal protection to certain basic human rights. Seen in this light the concept of Rule of Law can be of great relevance to contemporary society as it can be a potent instrument in the hands of administrative lawyers advocate to evaluate the country's Administrative Law and to strive for its improvement and reform so as to accord with these values. Rule of Law can be used to spell out many propositions and deductions to restrain an undue increase in administrative powers and to create controls over it. In many inquiries in common-law countries into various aspects of Administrative Law, Rule of Law has been invoked for this purpose. Rule of Law may become a potent tool in the hands of administrative lawyers to advocate reform of Administrative Law. Holdsworth emphasizes the importance of Rule of Law in so far as it means that courts can see that administrative officials do not exceed their powers and that the rights of the citizens are determined in accordance with law. Ousting court's jurisdiction and giving of a purely administrative discretion abrogates

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Rule of Law.15 The first basic value derivable from Rule of Law is that the Administration does not enjoy any power outside the law. Bureaucratic powers are to be confined within legal parameters. Administration does not have any inherent powers of its own so as to affect by its own fiat or decree any individual right. It can enjoy such powers only as emanate or are derived from law. The bureaucracy has to keep itself within the confines of law and it can exercise no power which is not sanctioned by law. This is the cardinal principle operative in a common-law country. This principle plays a vital role in the common-law system of Administrative Law. It leads to the application of the doctrine of ultra vires and judicial control of administrative action. This principle ensures that no one can be deprived of his right, liberty or property without authority of law. Secondly, Rule of Law is associated with the supremacy of the courts. DICEY was a firm believer of judicial control. For him this was basic to rule of law. If judicial power is transferred to some other agency it would be negation of rule of law according to DICEY. This ensures judicial review of administrative action as courts seek to ensure that the Administration does not overstep its legal powers. In the ultimate analysis, therefore, courts should continue to have the power to control administrative action and any overt diminution of that power is to be criticised. Judicial review of administrative action still remains the pivot of Administrative Law in England and other common-law countries including India. But, then, concentration of control power in courts alone is not sufficient. Other control mechanism is also to be thought of, e.g., Ombudsman, tribunal system etc. On the whole, judicial control has been found to be inadequate.16 The real test is how effectively administrative powers are controlled and how effective is the control mechanism. On this view, creation of tribunals ought not to be regarded as inconsistent with the Rule of Law in so far as they are used to control administrative powers and provide quick justice to individuals. Courts still remain the mainstay of control mechanism of the Administration in common-law countries, but they are not in a position to give complete protection to the individual and so other means of control over the Administration have become necessary. No official or functionary should be given a final decision-making power without an appeal or review at a higher level, and in the ultimate analysis court-review should be possible on points of law, and that this power of the courts should not be diluted. Thirdly, distinction should be drawn between arbitrary powers and discretionary powers. Traditionally, Rule of Law denotes absence of arbitrary, irresponsible and uncontrolled powers. This leads to the proposition that officials can have discretionary powers but not arbitrary powers. Therefore, discretionary powers should not be too wide, uncontrolled and unrestrained so as to become arbitrary, but subject to proper safeguards. Efforts are thus to be made to restrain an undue expansion of such powers and create proper controls over them. What is pertinent to-day is not complete absence of discretionary powers but proper safeguards against their abuse or misuse. Fourthly, Administrative Law seeks to explore limitations on administrative power. In many situations there are implied limitations, over and above what may be imposed by law. From this point of view, Administrative Law is not to be regarded as retarding, but instead promoting, the Rule of Law in so far as it discourages arbitrary powers, seeks to draw a balance between public power and private interests, provides for a control-mechanism over the Administration and a redressal mechanism when an individual gets hurt by administrative action, and thus ensures exercise of administrative powers in a lawful manner. At the same time, in so far as Administrative Law is able to discourage administrative arbitrariness, ensure an effective control over the bureaucracy which is now endowed with extensive powers, and is able to provide an effective redressal mechanism to a person who is hurt by any undue bureaucratic action, it may be asserted that Administrative Law does not infringe, but on the other hand, promotes and strengthens the concept of Rule of Law in democratic societies.17 The concept of Rule of law has been invoked by the courts in India as well from time to time not however in the Dicean sense, but as a means to discipline the powers of the Administration and to infuse some values therein. Thus, in Kraipak,18 HEGDE, J., observed: "In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not

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charged with the duty of discharging their functions in a fair and just manner."

In A.D.M. Jabalpur v. S. Shukla,19 dissenting Judge KHANNA, J., trying to put a curb on the vast administrative powers during the emergency, invoked the concept of rule of law and stated: "Rule of law is the antithesis of arbitrariness... Rule of Law is now the accepted norm of all civilized societies... Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every State the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the State and compel governments to conform to the law."

KHANNA, J., went on to emphasize that Rule of Law means government under the law, supremacy of law over government as distinct from government by law. It means the mere supremacy of law in society generally which would apply also in totalitarian States. The majority, on the other hand, took the view that Rule of Law argument is "intractable" as Rule of Law cannot override the emergency provisions. As RAY, C.J., said: "Constitution is the rule of law. No one can rise above the rule of law in the Constitution."20 The views expressed by the majority are the extremist positivist arguments. The majority arguments in effect boil down to this: Rule of Law is not available when one needs it most as a protection and shield against arbitrary administrative actions in the name of the emergency. Such extreme arguments do not have much validity in modern democratic societies. The concept of Rule of Law has also been discussed by the Supreme Court Judges in another context in another case, Indira Gandhi v. Raj Narain.21 In India, unlike England, Rule of Law is not a mere abstract concept. It is concretized in Art. 14of the Constitution. Over time, Art. 14 has emerged as a very significant constitutional provision. It has assumed a very activist dimension. Art. 14 guarantees "equality before law" and "equal protection of law" to every person. The courts have derived the concept of Rule of Law from Art. 14 and have invoked it to invalidate any unreasonable, arbitrary or discriminatory administrative action on the premise that such action amounts to denial of equality.22 Reference will be made to Art. 14 at several places in the ensuing text.23 Rule of law should establish a uniform pattern for harmonious existence in a society where every individual should exercise his rights to his best advantage to achieve excellence, subject to the protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps in to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man's status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Therefore, law is the foundation on which the potential of the society stands. If the law is to adapt itself to the needs of the changing society, it must be flexible and adaptable. The constitutional objective of socio-economic democracy cannot be realised unless all sections of the society participate in the State power equally irrespective of their caste, community, race, religion and sex. All discriminations in sharing the State power made on these grounds and those discriminations are to be removed by positive measures. The concept of equality, therefore, requires that law should be adaptable to meet equality.24 3. GROWTH OF ADMINISTRATIVE LAW (a) England DICEY'S concept of rule of law did however exert some negative influence on the growth of Administrative Law in England. DICEY'S assertions and assumptions, mentioned above, for long threw a chilly shadow over the growth of Administrative Law in England. Although what DICEY meant to say was that England did not have anything like the French Droit Administratif,25 yet his statements that England had no Administrative Law and that such a law was incompatible with Rule of Law created amongst lawyers a kind of antipathy towards Administrative Law as such. For long, DICEY'S thesis generated a sense of complacency among the English people so that they failed to take notice of the emergence of Administrative Law as such. For long the Englishmen regarded Administrative Law as a 'continental jargon' and were not prepared to accept

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that anything like it was coming into being in their own country as well although, in the meantime, Parliament continued to confer broad powers on the bureaucracy through legislation. Till the middle of the twentieth century, the English legal profession hardly appreciated what Administrative Law was.26 Thus, recognition, identification and study of Administrative Law in England was very much delayed. One result of this complacency has been that Administrative Law as a subject of study came on the scene quite late in the day. Another result of this attitude has been that in England until now development of Administrative Law has been piecemeal, unsystematic and planless and it lacks a coherent corpus.27 Also, DICEY concentrated mainly on remedies and thus confined himself only to a part of Droit Administratif. Droit Adnunistratif, on the other hand, concerns itself with much wider ground. The Continental system concerns itself, apart from remedies and procedures against administrative authorities, with such matters of substance as public law contracts, domains and principles of public ownership, principles of legal responsibility on the part of government and other public authorities. The result of DICEY'S influence has been that the concept of Administrative Law in England still has a very restricted significance. Friedmann states: "By contrast, the almost total failure, in the common law science of administrative law, to regard such matters as the status and powers of public enterprises, the development of public law contracts within the general field of contract, or the borderlines between legal duty and discretion in the conduct of public authorities, still greatly limits the understanding of administrative law in the common law world. Many of the vital problems of public law have to be culled from scattered decisions, standard conditions of government contracts, and other materials found in the case--and textbooks on contracts, tort or property, which, in turn, largely fail to analyse the public problems as such."28 Any way, the fact remains that in spite of the negative effect of DICEY'S assertions, Administrative Law has continued to grow in England in course of time mainly through two channels: (i) judicial creativity and (ii) legislation. As regards the first, in the common law system, the courts play a crucial role in controlling the Administration and, thus, develop the principles of Administrative Law. Till the middle of the 20th century, the role of the English courts in developing a viable system of Administrative Law was very disappointing. By and large, the courts regarded their function as legitimizing the delegation of vast powers to the Administration without paying much heed to safeguards against misuse of powers.29 "This was the period when the courts showed no inclination to indulge in fisticuffs with the Government."30 The administrative lawyers at the time were very dejected and frustrated at the passive way the courts were handling administrative law issues. They were criticizing the judges for their statism, lack of judicial creativity and lack of growth of Administrative Law. They were prodding the judges to show some dynamism, initiative and creativity in handling the problems of Administrative Law which had reached its nadir at the time.31 But when things appeared to be very bleak, a transformation came about in judicial attitude as regards the problems of Administrative Law and the judges started playing a creative and dynamic role. The new phase was initiated with the famous Ridge case in 1963.32 Since then a qualitative metamorphosis has come over the judicial process in England and other common-law countries as regards the development of Administrative Law.33 The courts have rendered a yeoman service in shaping and moulding Administrative Law and convert it into a sophisticated system of rules to regulate administrative behaviour and to discourage arbitrariness and lawlessness on the part of the Administration. The courts have played a very dynamic, creative and constructive role in developing the corpus of Administrative Law. The following pages will bear ample testimony to this new judicial trend. Many principles to regulate administrative behaviour have been evolved by the courts over a period of time in a number of landmark decisions. The last thirty years have been very significant from the point of view of the courts' contribution to the development of Administrative Law so much so that the British courts do now acknowledge that England has come to have a system of Administrative Law. Lord DENNING said in Breen v. A.E.U.34, "It may now truly be said that we have a developed system of Administrative Law." And things have changed a great deal since that observation was made.35 As regards the second channel of development, a realization has been dawning_ for some time now on enlightened governments in the common-law world that the task of developing Administrative Law cannot be left to the courts alone and that principles of Administrative Law need to be developed further than what the courts alone can achieve; there is need to establish certain institutions to oversee the bureaucracy beyond, and in addition to, the courts. This realization has led to some interesting developments recently in the area of Administrative Law. Several statutes have now been enacted for the purpose in several common-law

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countries.36 As regards England, DICEY'S thesis regarding rule of law could not retard the process of Parliament conferring powers on the Administration. A time came when perceptive persons in society could no longer ignore the growth of bureaucratic powers and had to take note of this phenomena. Accordingly, the first significant step towards articulation and systematisation of some aspects of Administrative Law was taken in 1929. Alarmed by the large scale assumption of power by the executive, Lord HEWART in 1929 in his book The New Despotism made a scathing attack on the expansion of administrative powers of legislation and adjudication, and warned that vast opportunities had come to exist for misuse of powers by officials. He warned that bureaucracy had become the true rulers of the country. This led the Government to appoint in 1929 the Committee on Ministers' Powers (also known as the Donoughmore Committee after the name of its Chairman), to consider the powers exercised by the Administration by way of--(a) delegated legislation, and (b) judicial or quasi-judicial decision, and to report "what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law." In the words of Carr, the questions posed for Committee were whether Britain had gone off the "DICEY standard" and, if so, what was the quickest way back.37 In its report submitted in 1932, the Committee found nothing fundamentally wrong in the developments which were taking place. Nevertheless, it accepted that there were opportunities for the Administration to misuse its powers. Accordingly, it made a number of suggestions to improve the control and supervisory mechanism. The report of the Committee called attention to three main defects in the existing system of Administrative Law, viz., (1) the inadequate provision made for publication and control of delegated legislation; (2) the lacuna in the law caused by the inability of a subject to sue the Crown in tort; and (3) the extent to which the control and supervision of administrative decisions were passing out of the hands of the courts and were being entrusted by Parliament to specialist tribunals and enquiries. This led to the appointment of a Committee on Statutory Instruments in 1944 in the House of Commons to oversee legislation by the Administration, and also to the enactment of the Statutory Instruments Act, 1946, to tidy up, to some extent, matters relating to, and improve parliamentary control on, delegated legislation. This Act has been characterised as purporting to enact a "comprehensive procedural code for the making of subordinate legislation."38 This Act formulates rules for publication of statutory instruments and also regulates the laying procedure before Parliament. The report of the Donoughmore Committee represents the first attempt made in England at systematisation of Administrative Law. In 1947, the Crown Proceedings Act was enacted to liberalise the law relating to civil proceedings against the Government and making it liable to be used in the courts and pay damages for contractual and tortious liabilities.39 Then occurred the Crichel Down Affair.40 The Air Ministry compulsorily purchased a piece of land for use as a bombing range during the war. After the war the original owner wanted to repurchase the land as it was no longer required by the Air Ministry, but it transferred the land to the Ministry of Agriculture for use as a model farm. The claim of the original owner was handled by various officials with too little care and consideration and this was considered as bad administration. The affair led not only to the resignation of the Minister of Agriculture, but also the appointment of the Franks Committee to look into the system of adjudication by the Administration. The Committee known as the Committee on Administrative Tribunals and Enquiries was appointed in 1955 and it gave its report in 1957.41 As a result of the Committee's findings and recommendations, several procedural improvements have been effectuated in the working of the tribunals and inquiries in England. The Tribunals and Inquiries Act was enacted in 1958. Many procedural improvements were made in the tribunal system; judicial review over tribunals was strengthened; the Council on Tribunals was appointed to supervise the working of the tribunals and to seek to improve their procedures.42 Till 1958, the areas of delegated legislation and administrative adjudication had been investigated and some reforms introduced therein, but the area of the other administrative powers had not been touched so far. This task was performed by Justice, the English wing of the International Commission of Jurists, which published a report in 1961 (known as the Whyatt Report) suggesting the appointment of an ombudsman in England.43 In 1967, England adopted the ombudsman system as it was felt that the judicial control of administrative powers was inadequate and that it needed to be supplemented by other institutional arrangements.44 Justice released another report in 1971 suggesting several reforms in exercising discretionary powers.45 One of the

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suggestions made was the setting up of an administrative division in the High Court.46 In spite of these developments, there was a feeling that the growth of Administrative Law in England had been piecemeal and unsystematic and that there was need to reform this law further. It was felt that what was needed was a "comprehensive and coherent system of administrative law." To achieve this goal, the Law Commission in 1969 proposed to the Lord CHANCELLOR that a comprehensive inquiry be held into Administrative Law. The Commission felt that in spite of notable developments and clarifications which the courts had brought about there remained "a need to consider to what extent the courts would be assisted by a legislative framework of principles more systematic and comprehensive than has so far been evolved by case-law." But the proposed inquiry did not materialise as the Lord CHANCELLOR took the view that it was premature and that the "right time" for such an inquiry had not yet arrived.47 However, the Commission did undertake a limited inquiry into one significant sector of Administrative Law, viz., Legal Remedies, and its report was released in 1976.48 The Commission's basic recommendation was that under cover of "an application for judicial review," a litigant should be able to obtain any of the prerogative orders, viz., mandamus, prohibition, certiorari, declaration or injunction. Some of the recommendations made in the report have been implemented. A single procedure, known as "application for judicial review" has now been introduced. The rule of standing has also been liberalised to facilitate invocation of judicial review of administrative action. This has gone a long way to simplify and strengthen judicial review of administrative action in Britain.49 However, much still remains to be done in this area. To channelise ideas for further reform of the British Administrative Law, a joint committee of All Souls College and Justice was set up in 1978. The committee first released a discussion paper in 1981 inviting comments on a number of proposals for reform of Administrative law.50 In 1988, the committee released its report suggesting a number of reforms in Administrative Law of England.51 It appears to be only a matter of time when England may also see some more reforms in the area of Administrative Law. The result of the various developments mentioned above has been that Administrative Law, which was once characterised in England as a "continental jargon" has now become transformed into an identifiable and developed branch of law. (b) Australia Administrative Law is not static. A ferment has been going on at present in the common-law world in the area of Administrative Law as conscious efforts are being made to improve the same. In Australia, a systematic attempt has been made to tackle the problems of Administrative Law. The courts have contributed a lot in this respect but what is being done now is much more than what the courts could have ever achieved. New institutions of control and overseeing administrative functioning are being created and improvements in administrative procedure are being envisaged. What is remarkable is that the Australian Government itself has played an active role and taken active interest in sponsoring these reforms. In 1968, the Attorneygeneral appointed the Administrative Review Committee, known as the Kerr Committee, to make a comprehensive and intensive study of the prevailing system of Administrative Law. The committee reporting in 1971 suggested that the time had come when a general system of Administrative Law should be introduced in Australia and with this object in view it made a number of suggestions. The report led to the appointment of the Bland Committee to review administrative discretions under the Commonwealth Law and to advise the government as regards those discretions in respect of which a review on merits should be provided. Another committee known as the Ellicott Committee, was also appointed to review the prerogative writ procedures. The committee noted that the legal grounds on which remedies could be obtained were "limited and often complicated", and that the law relating to judicial review of administrative action was "technical and complex". The recommendations of the Ellicott Committee were similar to those made in England as regards the institution of the procedure by way of "application for judicial review". This would eliminate the risk of an aggrieved person applying for a wrong remedy. All these studies have resulted in the establishment of several institutions in Australia.52 The Ombundsman has been established by the Ombundsman Act, 1976. The Administrative Appeals Tribunal Act, 1975 has established the Administrative Appeals Tribunal to review a large number of administrative decisions on merits. The creation of the tribunal is a very radical concept. It is a kind of super-tribunal hearing appeals from a wide variety of administrative decisions. An Administrative Review Council has also been set up. This is the Australian counterpart of the British Council on Tribunals but with

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much wider terms of reference. It is to keep under review the classes of administrative decisions which are subject to review by a court, tribunal or any other body. An important function of the Council is to recommend to the minister regarding improving procedures for the exercise of administrative discretions for the purpose of ensuring that those discretions are exercised in a just and equitable manner. The Council is thus a kind of standing body to keep a constant review over administrative procedures in Australia. The Administrative Decisions (Judicial Review) Act, 1977, confers on the Federal Court of Australia (a court newly created) a jurisdiction to review federal administrative action. An all-purpose remedy, 'the order of review', has been introduced. A single, liberal test of standing has been introduced, namely, that the applicant be aggrieved Grounds for judicial review have been listed in the Act. Obligation to give reasons has been imposed on the decision makers. A Freedom of Information Act has been enacted.53 These are radical innovations, but more changes are anticipated, e.g., a code of procedure for all federal tribunals is proposed to be enacted. (c) New Zealand New Zealand has not lagged behind in reviewing its system of Administrative Law and making several procedural and institutional improvements therein. A number of steps have been taken to reform Administrative Law during the last few years. It was the first common-law country to adopt the Scandanavian system of Ombudsman as early as in 1962 and this has had tremendous impact in other common-law countries in making the institution acceptable.54 To undertake a systematic review of Administrative Law and to make necessary recommendations for the reform thereof, a standing committee, known as the Public and Administrative Law Reform Committee, was established in 1967. The Committee functioned for several years and made several reports. The Committee claimed for itself the same status as the Council on Tribunals has in England. On the Committee's recommendation, a number of reforms have been introduced in the New Zeland Administrative Law. The most significant innovation is the establishment of an Administrative Division in the Supreme Court to deal with problems of Administrative Law in the country.55 The Division has been created with a view to promote expertise and specialization amongst the Judges of the Division to deal with problems of Administrative Law. If problems of Administrative Law are dealt with by the same Judges over and over again, they will develop an expertise, skill and specialization to deal effectively and creatively with the problems of Administrative Law and it would also make for "consistency of judicial policy and approach". The Division could bring "greater consistency, coherence and authority" in administrative decisions. Appeals from many tribunals lie to this division on law, fact and discretion and it also exercises the jurisdiction of the Supreme Court in Administrative Law.56 New Zealand opted for this innovation in spite of the fact that it had been rejected by the Franks Committee in England. New Zealand has also adopted an additional remedy styled as "application for judicial review". This is in addition to the remedies of prerogative writs, declaration and injunction. On such application, the applicant can get any relief from the court to which he may be entitled in any proceeding for a writ, injunction or declaration or any combination of them. Steps have also been taken to improve the tribunal system as well as the regulation-making powers and procedures. Many other reforms are on the anvil. (d) Canada The Law Reform Commission of Canada is also engaged in studying various problems existing in the Canadian Administrative Law.57 The Commission has prepared several in depth studies of several administrative agencies and made recommendations aimed at making the administrative practices of the agencies fairer, more efficient and effective and ultimately more accountable to the public. It would thus appear from the above that presently in the common-law world, there is wide-spread thinking on how to improve Administrative Law. The influence of DICEY has now worn thin. It has come to be realised that mere court review does not provide an effective control-mechanism over administrative functioning and that to achieve this objective, some features of Droit Administratif need to be incorporated into the common-law system.

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(e) India In India, during the last several years, the courts have played a very creative role in developing principles of Administrative Law.58 These developments are taken note of in the following pages. One salient development which has taken place during the last few years is the proliferation of the tribunal system to adjudicate upon some types of disputes. Parliament has enacted laws to establish a number of tribunals which have taken over some functions from the courts and some from the Administration.59 Earlier, in some States, Lokayukta mechanism (something on the lines of the Ombudsman) was established. Parliament has not so far enacted any such Act in spite of the fact that the proposal to do so was made as early as 1967 by the Administrative Reforms Commission.60 Besides this, nothing much has happened in the area of Indian Administrative Law. A number of problems exist in this law, but the government and the legislature have not evinced much interest in improving the law and in developing mechanism to control administrative authorities. India remains as yet untouched by the innovative developments taking place in other common-law countries. 4. SEPARATION OF POWERS If the Rule of Law as enunciated by DICEY affected the growth of Administrative Law in Britain, the doctrine of 'Separation of Powers' had an intimate impact on the development of Administrative Law in the U.S.A. As Davis points out: "Probably the principal doctrinal barrier to the development of the Administrative Process has been the theory of separation of powers."61 The truth is that while the doctrine of separation has affected the character of the American Administrative Law, the doctrine itself has been affected by the newly emerging trend in favour of Administrative Law. The doctrine of separation of powers, traceable in its modern form to the French political philosopher Montesquieu, emphasizes the mutual exclusiveness of the three organs of government, viz., legislative, executive and judicial. The main underlying idea is that each of these organs should exercise only one type of function. There should not be concentration of all the functions in one organ otherwise it will pose a threat to personal freedom, for, in that case, it can act in an arbitrary manner. It could enact a tyrannical law, execute it in a despotic manner and interpret it in an arbitrary manner without any external control. The doctrine therefore emphasizes that the legislature should be confined to legislative function only and it should have no executive or judicial function to discharge; the executive should restrict itself to executive functions and should not exercise any other function and the judiciary should discharge only judicial, and neither executive nor legislative, function.62 The purpose underlying the separation doctrine is to diffuse governmental authority so as to prevent absolutism and guard against tyrannical and arbitrary powers of the state, and to allocate each function to the institution best suited to discharge it. The rationale underlying the doctrine has been that if all power is concentrated in one and the same organ, there would arise the danger of state absolutism endangering the freedoms of the people. The doctrine of separation forms. the basis of the American constitutional structure. Articles I, II and III which delegate and separate powers exemplify the concept of separation of powers. Art. I vests legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court. The form of government, characterised as presidential, is based on the theory of separation between the executive and the legislature. The executive power is vested in the President, the legislative power in the Congress and the judicial power in a hierarchy of courts with the Supreme Court at the apex. The President is both the head of the state as well as its chief executive. He appoints and dismisses other executive officers and thus controls the policies and actions of government departments. The persons in charge of the various departments, designated as the Secretaries of State, hold office at his pleasure, are responsible to him and are more like his personal advisers. The President is not bound to accept the advice of a Secretary and the ultimate decision rests with the President. Neither the President nor any member of the executive is a member of the Congress and a separation is maintained between the legislative and executive organs. This system of government is fundamentally different from the parliamentary system prevailing in many common-law countries, like England, India, Malaysia, Singapore, Australia etc., where the system of government works on the basis of co-ordination between the executive and the legislative organs. The cabinet is collectively responsible to the Parliament and holds office so long as it enjoys the confidence of the

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majority there. In a parliamentary system, while separation is not maintained in legislative-executive relationship, separation of judiciary is regarded as a vital principle.63 On the other hand, the Prime Minister has power to seek dissolution of the Parliament. In the U.S.A., the President is not in theory responsible to Congress. He has a fixed tenure of office and he does not depend on the majority support in the Congress. He stays in office for his entire term. Before the expiry of his term, he can be removed only by the extremely cumbersome process of impeachment. Nor can the President dissolve the Congress. The executive therefore is not in a position to provide any effective leadership to the legislature and it is not always that the Congress accepts the programme and the policy proposed by the executive.64 The independence of the Supreme Court is constitutionally guaranteed. The U.S. Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. For instance, a bill passed by the Congress may be vetoed by the President and, to this extent, the President may be said to be exercising a legislative function. Again, appointment of certain high officials is subject to the approval of the Senate. Also, treaties made by the President are not effective until approved by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive functions. The Congress continuously probes into executive functioning through its various committees, and also has the power to tax and sanction money for governmental operations. The Supreme Court has the power to declare the Acts passed by the Congress unconstitutional. But the Judges of the Supreme Court are appointed by the President with the consent of the Senate. This exercise of some part of the function of one type by an organ of the other type is justified on the basis of the theory of checks and balances. It means that the functioning of one organ is checked in some measure by the other organ so that no organ may run amok with its powers and misuse the same. The danger sought to be averted is that an organ having one type of power may exercise it arbitrarily or unwisely if left completely uncontrolled. Administrative Law and the separation doctrine are somewhat incompatible, for modern administrative process envisages mingling of various types of functions at the administrative level. Administrative process arises because new demands are made on the government to solve many complex socio-economic problems of the contemporary society and thus new institutions need to be created and new procedures evolved. Had the doctrine of separation been applied strictly in the U.S.A., the growth of administrative process would have been extremely difficult and modern government might have become impossible. For practical reasons therefore the doctrine of separation has to be diluted somewhat to accommodate the growth of administrative process. Thus, the doctrine of separation has influenced, and has itself been influenced by, the growth of Administrative Law. The American Administrative Law has certain distinctive features which are a product of the separation doctrine. A significant breach in the doctrine occurred when the courts conceded that legislative power could be conferred on administrative authorities, and, thus, the system of delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine with the new institution, the courts laid down that Congress cannot confer an unlimited legislative power on an administrative authority, that the Congress must not give up its position of primary legislator and that the Congress should therefore lay down the policy which the delegate is to follow while' making the rules.65 Thus, the principle has been accepted that the delegating statute must contain a framework within which the administrative-delegate has to operate. If this is not done then the primary legislator, namely, the Congress, abdicates its function to the delegate and this is unconstitutional. This has led to the emergence of the doctrine of Excessive Delegation. Thus, there was double adjustment here; modification of the strict application of the doctrine of separation but, at the same time, the doctrine of separation itself imparting a character of its own to the American Administrative Law. The separation doctrine has also come in the way of the development of legislative supervision over delegated legislation in the U.S.A. through a legislative committee like what has been developed in Britain or India.66 A further encroachment was made on the doctrine of separation when adjudicatory powers came to be conferred on the executive and some administrative tribunals, like the Tax Court, were established. Administrative Justice is expanding in all countries67 and the U.S.A. is no exception to this rule. A far more serious dilution of the separation doctrine occurred when autonomous statutory regulatory commissions endowed with the triple functions, legislative, administrative and adjudicatory, along with powers of

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investigation and prosecution, were established to regulate new areas of activities. Such a body has authority to prescribe generally what shall or shall not be done in a given situation, which is a type of legislative power. It has also authority to determine whether the law has been violated in particular cases and to proceed against the violators, which is a kind of adjudicatory power. The commissions are by and large independent of the Executive.68 The emergence of such bodies has greatly compromised the separation doctrine. As Mr. Justice Jackson points out, the administrative agencies "have become a veritable fourth branch of the government, which has deranged our three branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking."69 For long it was debated whether it was constitutional to have such bodies or not. But as such bodies have now been in existence for long and new bodies are being created from time to time, they have come to be accepted as a fact of modern life and are treated as an integral part of the American Administrative Process.70 American administrative lawyers primarily concentrate their attention on such bodies.71 The Supreme Court has not so far held the vesting of the three types of functions in one body as unconstitutional. With the emergence of such bodies, the view has now come to be advocated that the danger of tyranny or injustice (which the separation doctrine seeks to avoid) lurks in 'unchecked' power not in 'blended' power and, therefore, the more important thing is to have checks and balances. The separation doctrine though not applicable in its strict form to contemporary government, nevertheless, is not entirely redundant. Its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, the following comment about the doctrine in a leading book on American Administrative Law may be noted:72 "Its object is the preservation of political safeguards against the capricious exercise of power; and incidentally, it lays down the broad lines of an efficient division of functions. Its logic is the logic of polarity rather than strict classification... the great end of the theory is, by dispersing in some measure the centres of authority, to prevent absolutism."

Accordingly, it has come to be emphasized that while it may be necessary to confer various functions on a regulatory agency, and it may not be possible to separate adjudicatory functions from other functions, nevertheless, efforts must be made to achieve some sort of internal separation of functions within the agency, e.g., adjudicatory function may be separated from the function of investigation and prosecution within the same agency.73 The aim of the separation doctrine is to guard against tyrannical and arbitrary powers of the state. Though, in the face of the complex socioeconomic problems demanding solution in a modern welfare state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it has been stated about the doctrine: "Its object is the preservation of political safeguards against the capricious exercise of power; and incidentally, it lays down the broad lines of an efficient division of functions. Its logic is the logic of polarity rather than strict classification... the great end of the theory is, by dispersing in some measure the centres of authority, to prevent absolutism."74 By force of circumstances, Administrative Law has inevitably grown in the United States, but the separation doctrine did not generate an attitude of indifference towards it, as happened in England under the spell of the Dicean concept of "rule of law". In the U.S.A., the attitude was that of discussion, examination and criticism of the new development. A constant debate went on on the advisability and propriety of establishing the statutory commissions having multiple powers. Many lawyers criticized the growth of administrative process as doing violence to the purism of the separation doctrine. There was an insistent demand that a full-fledged investigation be carried out into the growth of administrative process, and that due safeguards be devised against abuse of powers by administrative authorities. As a result of this demand, the U.S. Attorney-General appointed a committee in 1939 to review the entire administrative process and to recommend improvements therein. The committee conducted a thorough probe into the administrative procedures followed by the various agencies of the Federal Government and made a report in 1941. The Committee came out with a number of recommendations to reduce the chances of abuse of power. Because of the Second World War no immediate progress could be made to give legal effect to these recommendations, but after sometime the

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most tangible result was the enactment of the Administrative Procedure Act, 1946. The Act is now the foundation of federal Administrative Law in the U.S.A. The Act strengthens hearing procedures. It provides for a sort of hearing in exercising the function of delegated legislation. The Act strengthens provisions for judicial review keeping in view the needs of flexibility and diversity in administrative process. The Act also provides for a sort of separation of functions within the same agency. The Act lays down minimum general principles of a procedural nature to regulate the exercise of powers by all agencies. It is neither a comprehensive nor a detailed code. Its provisions affect and control the procedures of all administrative tribunals and agencies whose decisions affect the person or property of private citizens. The Act "represents a moderate adjustment on the side of fairness to the citizens in the never-ending quest for the proper balance between governmental efficiency and individual freedom."75 The Act seeks to judicialize procedures and extend the scope of judicial review keeping in view the needs of flexibility and diversity in administrative process. The statute represents a compromise between two contending ideas: one, propagated mainly by the legal profession, was to seek to restrain administrative power, provide for greater uniformity and certainty in administrative procedures, and expand the role of the judiciary in controlling the exercise of administrative power. On the other hand was the view of the administrative agencies themselves; they were desirous of retaining flexibility and diversity in the administrative process and they certainly did not favour an expansion of the scope of judicial review. The Act thus contains many compromises and generalities. The Act within its limitations is of great significance for it represents the first legislative attempt in the common-law world to state essential principles of fair administrative procedure. Suggestions have been made in other countries to have a similar statute. For example, the Kerr Committee in 1971 suggested that Australia should have such a statute prescribing minimum procedural standards for all tribunals and also containing provisions dealing with regulation-making power, disclosure of documents, appointment and removal from office of members of tribunals.76 The matter has not however stood still at the 1946 level and search for more effective control over the Administration continues in the U.S.A. An important step was taken in the U.S.A. in 1967 with the enactment of the Freedom of Information Act with a view to move towards open government, and remove secrecy in the functioning of administrative agencies. The Act makes it obligatory for an agency to publish orders, opinions, statements of policy, interpretations, rules of procedure etc. in the Federal Register. The Act also contains the general access principle, viz., all other documents in the possession of agencies are to be made available for inspection or copying by a member of the public unless covered by one of the exceptions. These types of public documents shall be published in the Federal Register and others shall be available for inspection by members of the public. Officials may not withhold documents at their discretion on the ground of protection of public interest. There are also some exceptions laid down in the Act. The Act gives to a citizen a legally enforceable right of access to agency files and documents generally. In case the request to make the records available is refused by an agency, an action can be brought in the district court which has jurisdiction to enjoin the agency from withholding records and, in any such action, the court is to determine the matter de novo and the burden shall be upon the agency to sustain its action. The whole purpose of the Act is to reverse the self-protective attitude of the agencies; disclosure has been made the general rule and only information specifically exempted by the Act may now be withheld. As has been stated by Schwartz and Wade: "The Freedom of Information Act effects a profound change in the position of the citizen vis-a-vis government. No longer is the citizen seeking information from an administrative agency as a mere suppliant."77 Another development is the enactment of the Government in the Sunshine Act, 1976. This Act requires an agency where it consists of a body of two or more members to hold open meetings open to public observation with certain exceptions. A major innovation in the U.S.A. is the creation of a new Agency, the Administrative Conference of the United States. This agency is now responsible for conducting continuous research into the problems of Administrative Law and for initiation of proposals for reform. It has been created by congressional statute enacted in 1964. It is purely a recommendatory body. It makes recommendations to improve the efficiency,

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adequacy and fairness of the legal procedures of federal agencies which affect private rights and obligations through adjudication, rule-making and investigation. The weakness of this body lies however in that it is an unwieldy body having a membership of 83 and it is dominated by government officials. Not less than 60%, but not more than 66-2/3%, of its members have to be government personnel.78 A special feature of the American Administrative Law has been its emphasis on administrative procedure, i.e., imposing procedural requirements on active administration. This American attitude is reflected in Justice Frankfurter's assertion that "the history of liberty has largely been the history of the observance of procedural safeguards".79 Thus, there is emphasis upon procedural safeguards to ensure the proper exercise of administrative authority. Perhaps, the "due process" clause in the U.S. Constitution has something to do with this emphasis on administrative procedure. In this task the judiciary has helped by providing an intellectual leadership and the Congress has taken initiative by way of passing the necessary legislation as mentioned above. On the whole, there has been considerable judicial creativity in the development of American Administrative Law. It needs to be emphasized however that although the separation doctrine has been very much diluted over the years because of the emergence of administrative process, the doctrine at times manifests itself with all its force in judicial decisions. One instance of this is to be found in Buckley v. Valeo,80 where the Supreme Court held a Congressional Act to be unconstitutional because it breached the separation doctrine in so far as the Congress sought to claim the administrative power of making appointments to a federal body, viz. the Federal Election Commission. The Court stated: "The Constitution diffuses power the better to secure liberty", though "a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself."81 Recently, the Supreme Court has applied the separation doctrine in Immigration and Naturalization Service v. Jagdish Rai Chadha.82 Sec. 244(c)(2)of the Immigration and Nationality Act authorizes either House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney-General, to allow a particular deportable alien to remain in the United States. The Attorney-General suspended the deportation order passed on Chadha. Thereafer, the House of Representatives passed a resolution pursuant to S. 244(c)(2) vetoing the suspension. The Immigration judge consequently reopened the proceedings. Chadha moved to terminate the proceedings on the ground that S. 244(c)(2)was unconstitutional. The matter ultimately reached the Supreme Court which ruled that the Congressional veto provision in S. 244(c)(2)was unconstitutional. The Court enunciated the separation doctrine as follows (majority opinion, per BURGER C.J.): "The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted. Although not 'hermetically' sealed from one another, the powers delegated to the three Branches are functionally identifiable. When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it."

The Court thus held that the function discharged in the instant case by the House was legislative in nature which would be subject to bicameralism83 and the presentment clauses.84 Since the House was exercising legislative power, it was subject to the standards prescribed in Art. 1. "The provisions of Art. 1 are integral parts of the constitutional design for the separation of powers". "The bicameral requirement, the presentment clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President." This pronouncement may have far-reaching repercussions on the fabric of administrative process in the U.S.A., particularly, on the question of Congressional supervision and control over the actions of the

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Administration. Congress confers broad powers on administrative bodies and then imposes veto either by one House or both Houses over the exercise of those powers. It is regarded as an essential check on the expanding powers of the agencies, as they engage in exercising authority delegated by Congress. Over 200 statutes at present impose some kind of legislative veto over these bodies. The constitutional validity of all these statutory provisions has now become problematic in view of the Chadha pronouncement. When the Court declares any legislative or executive action as being violative of the provisions of the Part III of the Constitution, it would be permissible for Legislature or the Executive to remove the defect pointed out by the Court, even retrospectively and the previous action can also be validated. Where there is a mere validation with retrospective effect, without the defect being legislatively removed with retrospective effect, the legislative action will amount to overruling the judgment of the Courts by way of legislative fiat and will be invalid as being contrary to the doctrine of separation of powers.85 5. DROIT ADMINISTRATIF At several places above, reference has been made to Droit Administratif in France which is quite different in conception from the Common-law system of Administrative Law. It is therefore proper to say a few words about it. Droit Administratif is being discussed at this place because it is in itself the product of the doctrine of separation of powers. This doctrine has meant in France that there should be separation between the courts and administrative bodies. In this respect, the separation theory has had a greater imprint in France than in the U.S.A. The separation doctrine in France has resulted in non-interference by the courts in the working of administrative authorities. The most original aspect of the French Administrative Law therefore is the independence of the Administration from judicial control. The ordinary courts exercise no control over administrative functioning. In France, a person has no avenue for redress of grievances against the administration through the courts. This is the important point of deviance between the Droit Administratif and the British or the Common-law system of Administrative Law. Autonomy of the Administration from judicial control does not however mean that it is despotic or is free from all control. Administration has been able to develop its own tribunals to supervise it. It is another characteristic feature of Droit Administratif, viz., that administrative tribunals supervise administrative functioning.86 France has a large number of administrative tribunals, but the most significant of these is the Conseil d'Etat.87 It consists mostly of civil servants who, in theory, can be dismissed by political authorities. Thus, while on the face of it, this body may not seem to be as independent and impartial as an ordinary court, but, as a matter of fact, because of the emergence of certain practices and conventions, the Conseil is very independent in practice. The Conseil is composed of the cream of the French Civil Service. The Conseil D'Etat is an important administrative tribunal. It acts as the court of appeal from all other administrative tribunals. All. tribunals whether specialised or not are subject to the Conseil's control, as all decisions of administrative tribunals are subject to review by the Conseil on points of law. Because the Conseil acts as the central appellate administrative tribunal, it has been possible to secure the unity of Droit Administratif, and also the tribunals in France have come to have a cohesion and autonomy unknown in commonlaw countries where there function many tribunals without any single general administrative appellate tribunal. The Conseil also acts as the court of first instance for cases for recourse pour excess de pouvoir against the decrets of the Administration. To further protect administrative tribunals from interference from the ordinary courts, a separate Tribunal des Conflicts has been established which decides whether a matter should go before the ordinary courts or the tribunals. It has judges and civil servants in equal numbers with the Minister of Justice as the President, but he rarely presides over it. Only when members of the tribunal are equally divided, it may be necessary for him to use his veto. The administrative tribunals have spelled out two principal limitations on administrative bodies. One, these bodies must not act against the law; two, they must pay damages when they cause injuries. If an administrative action is ultra vices, it can be nullified by the tribunal by recours pour excess de pouvoir on an action brought by the affected private citizen. The scope of this action is very broad and it constitutes the best means to protect citizens against abuse of power. The Conseil can supervise the form and content of administrative decisions. It can also supervise the grounds on which administrative action is taken. As regards the action for damages, damages can be granted to an individual when he is injured by an

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administrative action not only when the state is at fault but also when not at fault. This gives significant protection to the individual against the wrongs of public administration. The French Droit Administratif has sought to draw a balance between private rights and public benefit. On the one hand, it maintains and supports administrative powers; on the other, it has developed a mechanism for protecting individual rights and civil liberties against possible attacks by public authorities. The Conseil d'Etat has been characterised as the "bulwark of civil liberties," and also as the "guardian of administrative morality." This system has now come to be regarded as providing better protection to individual rights against the despotism of public administration than the Common-law system provides at present. It permits of a much deeper and broader range of control over the Administration than the courts in Britain can exercise.88 There is no longer any doubt that in criticising the Droit Administratif the way DICEY did, he displayed an utter lack of perception into the system. DICEY was a great believer in ordinary courts. Any transfer of judicial power to any other agency was anathema to him. But it is now realized that that cannot the sole test of the efficacy of the system of Administrative Law of a country. The crucial test is how effectively Administration is controlled in exercising its powers and whether or not a citizen has an adequate redressal mechanism in case he is hurt by the Administration. From both these tests, Droit Administratif is found to be more satisfactory than the common-law system of Administrative Law. DICEY had believed that administrative tribunals would be partial to the Administration. But the truth is that the Conseil d'Etat in discharging its judicial and controlling functions has achieved a high degree of objectivity.89 Gradually, some elements of Droit Administratif are filtering into the common-law system as well. In fact, some British scholars have made a very radical suggestion indeed: import Droit Administratif and Conseil d'Etat into England from France.90 But, many other scholars do not find such an idea palatable because it constitutes a fundamental break form the British tradition. They would like to reform their own system rather than import wholesale from outside. They advocate that there is nothing which the Common law system of Administrative Law cannot achieve after some modifications which the French Droit Administratif seeks to achieve.91 The question however remains whether England's membership of the European Economic Community will not subject its laws and institutions, particularly, the Administrative Law, to European influences in course of time.

1 See, infra, Chapters XVIII and XIX . 2 WADE & FORSYTH : Administrative Law, 9th Edn., 2005, p. 20. 3 The Law of the Constitution, 198 (8th ed.). 4 The Law of Constitution, at 198 (8th ed.). 5 On Droit Adtninistratif, see, infra, this chapter. 6 There was a third sense also which Dicey attributed to Rule of Law, viz., England does not have any constitutionally guaranteed fundamental rights (unlike the USA) but the basic political freedoms of the people are inherent in the common law, and are judgemade. This idea is not being discussed here as it is more relevant to Constitutional Law rather than to Administrative Law. It really indicates no constitutional principle but only summarizes a British legal tradition. However, lately there has been some shift in public opinion in favour of having some guaranteed freedoms: See, SCARMAN, English Law--The New Dimension (1974); YARDLEY, Modern Constitutional Developments: Some Reflections, 1975 Pub. Law, 197. For discussion on DICEY'S views see: COSGROVE, The Rule of Law, 66-113 (1980); WADE and PHILLIPS: Constitutional and Administrative Law, 86 (ed. BRADLEY, IX ed.). 7 LAWSON, DICEY Revisited, 7 Political Studies, 109,207 8 BROWN and GARNER, French Administrative Law (1983); MITCHELL, Constitutional Law (1968): HAMSON, Executive Discretion and Judicial Control (1954), SCHWARTZ, French Administrative Law and the Common Law World (1954); CAROL HARLOW, Remedies in French Administrative Law, 1977 Pub. Law 227; Z.M. NEDZATI and J.E. TRICE, English and Continental Systems of Adm. Law (1978). 9 Constitutional History of England, 505 (1908). 10 Board of Education v. Rice, (1911) A.C. 179; Local Government Board v. Arlidge, (1915) AC 120. The principle laid down in these cases is that when judicial or quasi-judicial powers are conferred on a government department, it is not bound to follow

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the ordinary court procedures in exercising its jurisdiction though it is bound to act with fairness. See, infra Chapter IX . 11 DICEY, The Development of Administrative Law in England, 31 LQR 148 (1915). 12 DAVIS, Discretionary Justice (1969). For discussion of discretionary powers, see, infra, Chapters XVII, XVIII, XIX ; JAIN, Cases, Chapters XV and XVI. 13 For Administrative Adjudication, see, infra, Chapters IX-XIV ; JAIN, Cases, Chapters VIII-XIII . 14 FRIEDMANN, Law in a Changing Society, 380 (1972). 15 55 LQR 587. 16 For discussion on Judicial Control of Administrative Act, see infra, Vol. II ; JAIN, Cases, Vol. IV. 17 HARRY W. JONES, The Rule of Law and the Welfare State, 58 Col. L.R. 143 (1958). 18 AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], at 154 : (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]. 19 AIR 1976 SC 1207 [LNIND 1976 SC 196] [LNIND 1976 SC 196] [LNIND 1976 SC 196], at 1254, 1263 : (1976) 2 SCC 521 [LNIND 1976 SC 196] [LNIND 1976 SC 196] [LNIND 1976 SC 196]. For a full discussion of this case, see, JAIN, Indian Const. Law, 732-36 (1987). 20 AIR 1976 SC 1207 [LNIND 1976 SC 196] [LNIND 1976 SC 196] [LNIND 1976 SC 196]at 1224 : 1976 Supp SCR 172. 21 AIR 1975 SC 2299, 2384, 2470 : 1975 Supp SCC 1; JAIN, supra, note 17, at 886-887. Also see, BHAGWATI, J. in Bachan Singh v. Punjab, AIR 1982 SC 1325 [LNIND 1982 SC 117] [LNIND 1982 SC 117] [LNIND 1982 SC 117]at 1340 : (1982) 3 SCC 24 [LNIND 1982 SC 117] [LNIND 1982 SC 117] [LNIND 1982 SC 117]; JAIN, op. cit., 597. 22 E.P. Ropayya v. Tamil Nadu, AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]: (1974) 4 SCC 3 : 1974 (2) SCR 348 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]; Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537 [LNIND 1990 SC 565] [LNIND 1990 SC 565] [LNIND 1990 SC 565]at 539 : (1991) 1 SCC 212 [LNIND 1990 SC 565] [LNIND 1990 SC 565] [LNIND 1990 SC 565]; JAIN, Indian Const. Law, 483-497. 23 See, infra, Chapter XVIII ; JAIN, Cases, Chapter XV. 24 Chattar Singh v. State of Rajasthan, (1996) 11 SCC 742 [LNIND 1996 SC 1532] [LNIND 1996 SC 1532] [LNIND 1996 SC 1532], 749-50 (para 17) : AIR 1997 SC 303 [LNIND 1996 SC 1532] [LNIND 1996 SC 1532] [LNIND 1996 SC 1532]. 25 On Droit Administatif, see, infra, 38. 26 SCHWARTZ and WADE, Legal Control of Government, 4 (1972). Also, WADE, Adm. Law, 25 (1982). 27 Report of the Administrative Review Committee (Australia), 32 (1971); Law Commission, Working Paper No. 13, para. 8 (1967). 28 FRIEDMANN, Law in a Changing Society, 352-3 (1959); see pp. 381-382 (1972). 29 Some of the cases reminiscent of this judicial phase are: Institute of Patent Agents v. Lockwood, (1894) A.C. 347; Liversidge v. Anderson, (1942) AC 206; Nakkuda Ali v. Jayaratne, (1951) A.C. 66; Vidyodaya University v. Silva, (1965) 1 WLR 77; Duncan v. Cammell Laird & Co., (1942) AC 624. 30 J.A.G. GRIFFITH, Administrative Law and the Judges, The Pritt Memorial Lecture (1978). 31 DAVIS, Judge-made Law in England, (1961) 61 Col. L.R, 209; Lord DEVLIN, 9 Current Legal Problems, 1, 14 (1956). 32 Ridge v. Baldwin, (1963) 2 All ER 66. Lord REID said in his opinion that England did not have a well developed system of Administrative Law. 33 Also see, M.P. JAIN, Changing Face of Administrative Law, 1-21, 47-48 (1983). 34 (1971) 1 All ER 1148, 1153. Also see the opinion of Lord WILBERFORCE in Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278, 1293. Compare this statement with what Lord REID had said only eight years earlier in Ridge v. Baldwin, (1963) 2 All ER 66. 35 So much so that in 1981, Lord DIPLOCK cautioned that any judicial statements on matters of public law made before 1950 "are likely to be a misleading guide to what the law is to-day". See, L.R.C. v. Federation of Self-Employed, (1981) 2 All ER 63 at 103, 104. 36 M.P. JAIN, Changing face of Administrative Law, at 47-64.

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37 CECIL CARR, Concerning English Administrative Law (1941). For excerpts from the report of the Committee, see, JAIN, Indian Adm. Law: Cases and Materials, Chapter III. 38 For details see, infra, Chapter, VI . 39 Infra, Chapter XXIV, under Compensation. 40 Crichel Down Enquiry Report, cmd. 9176 (1954). 41 For excerpts from the Report of the Franks Committee, see, JAIN, Cases, Chapter XII, Sec. B. 42 For details see, infra, Chapter XIII ; JAIN, Cases, Chapter XII, Sec. B. 43 Justice, The Citizen and the Administration. 44 Infra, see under Ombudsman, Vol. II . 45 See, Justice, Administration under the Law (1971). For discussion on problems of reform of Administrative Law at this time in England, see, TRICE, Administrative Law Reform-A Survey, (1972) Jl. Planning Law, 418-26; WADE, Crossroads in Adm. Law, (1968) Current Legal Problems, 75-93. 46 See, infra, under New Zealand, 28. 47 Law Comm., Working Paper No. 20, Cmnd. 4059; Also, (1967) Public Law, 185. 48 Law Comm., Report on Remedies in Administrative Law, Paper No. 73, Cmd. 6407 (1976). For comments on this report, see, WADE, 92 L.Q.R. 334 (1976) and 94 LQR 179 (1978). 49 Infra, under Judicial Control. For further details of the changes made in England, see, JAIN, M.P. JAIN, Changing Face of Administrative Law, at 50-64 (1983). 50 The paper is entitled Review of Administrative Law in the United Kingdom. The paper highlights a number of lacunae existing in Administrative Law. See, further, JAIN, M.P. JAIN, Changing Face of Administrative Law, at 62-64 (1983). 51 The title of the report is: Administrative Justice: Some Necessary Reforms (Clarenden Press: 1988). 52 KERR Committee, Report (1971); BLAND Committee, Interim Report and Final Report, (1973). For a discussion on the KERR Committee Report see, M.P. JAIN, Reform of Administrative Law in Australia, 15 J.I.L.I., 185-216 (1973). 53 For a discussion of these reforms, see, KATZ, Australian Federal Adm. Law Reform, 58 Can. B.R. 341 (1980); WHITMORE, Principles of Australian Adm. Law, 210-223 (1980); M.P. JAIN, Changing Face of Administrative Law, at 64-73 (1982). Also see, infra, under Right to Information. 54 See, infra, under Ombudsman. 55 M.P. JAIN, Reform of New Zealand Administrative Law, (1983) 25 J.I.L.I, 297. 56 Public and Administrative Law Reform Committee, Reports. Also, PATERSON, First Report of the Pub. & Adm. Law Reform Committee, (1968) 3 New Zealand Universities L.R., 351 (1968); J.F. NORTHEY, A Decade of Change in Adm. Law, 6 N.Z.U.L.R., 25 (1974); M.P. JAIN, Reform of New Zealand Administrative Law, (1983) 25 J.I.L.I, 297; M.P. JAIN, Changing Face of Administrative Law in India and Abroad, 77-79 (1982). 57 M.P. JAIN, Changing Face, of Administrative Law in India and Abroad, 73-77, 1982. 58 M.P. JAIN, Justice BHAGWATI and the Indian Administrative Law, 1980 BENARAS L.J. 1; The Evolving Indian Adm. Law (1983); M.P. JAIN, Changing Face of Administrative Law, at 80-98 (1983). 59 Infra, Chapters XIII and XIV on Administrative Adjudication. 60 See, infra, under Ombudsman. 61 DAVIS, I Administrative Law Treatise, 64 (1958). 62 For discussion on the doctrine of separation, see, VANDERBILT, The Doctrine of Separation of Powers; VILE, Constitutionalism and the Separation of Powers (1967); also articles in 52 Indiana L.J., 311-447 (1977); Report of the Attorney General's Committee on Administrative Procedure, 7 (1941). 63 See, Liyanage v. R., (1967) A.C. 259; Hinds v. R., (1967) 1 All E.R. 353; S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 Supp SCC 87 : 1982 (2) SCR 365. 64 JAIN, Indian Constitutional Law, 115-119 (1987). 65 Infra, Chapter IV .

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66 Infra, Chapter V . JAFFE AND NATHANSON, Administrative Law; Cases and Materials, 109-115 (1961); SCHWARTZ, Legislative Control of Administrative Rules and Regulations: The American Experience, 30 N.Y.U.L.R. 1031 (1955); MILLER and KNAPP, The Congressional Veto: Preserving the Constitutional Framework, 52 Indiana L.J., 366 (1977); MARTIN, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va. L. Rev., 253 (1982); SCHWARTZ, The Legislative Veto and Constitution--A re-examination, 46 Geo. Wash. L. Rev., 351, 362-63 (1978). Also see, Immigration and Naturalization Service v. Jagdish Rai Chadha, 462 U.S. 919 (1983). 67 Infra, Chapters IX, XIII . 68 The first of such commissions--The Interstate Commerce Commission--was established as early as 1887. Since then a number of such commissions have been established. 69 Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470,487 (1952). 70 DAVIS, I Administrative Law Treatise, 65 (1958). Also, Report of the Attorney General's Committee on Administrative Procedure, 7 (1941). 71 SCHWARTZ and WADE, Legal Control of Government, 27; WADE, Towards Administrative Justice, 24-51 (1963). 72 JAFFE and NATHANSON, Administrative Law, Cases and Materials, at 38. 73 Even in countries with a parliamentary system, it has become quite common to set up statutory bodies having mixed functions e.g., regulatory, administrative, legislative, adjudicative etc. In India, a number of such bodies may be identified, as for example, Election Commission, Reserve Bank of India etc. 74 JAFFE and NATHANSON, Administrative Law: Cases and Materials, 38 (1961). 75 BYSE, The Federal Administrative Procedure Act, 1 J.I.L.I., 89,92 at 107. Also, JAFFE, The Administrative Procedure Act, (1956) Public Law, 218; NATHANSON, Some Comments on the Administrative Procedure Act, 41 Ill. L.R., 368 (1946-7); SCHWARTZ, The Administrative Procedure Act in Operation, 29 N.Y.U.L.R., 1173 (1957); WARREN, The Federal Administrative Procedure Act and the Administrative Agencies (1947); SCHWARTZ, Casebook, 59. 76 KERR Committee, Report, 100-1 (1971). 77 SCHWARTZ and WADE, Legal Control of Government, 77-80, at 78. Also, ENID CAMPBELL, Public Access to Government Documents, 41 A.L.J., 73; S.N. JAIN, Official Secrecy and the Press, 37 (ILI, 1982); see for comments on the Information Act, 14 Harv. Jl. of Legislation, 620 (1977); see, infra, under Right to Information. 78 SCHWARTZ and WADE, Legal Control of Government, 180-4. Also, WOZENCRAFT, The Administrative Conference of the U.S., (1968) 24 Business Lawyer, 915; SCHWARTZ, Recent Developments in American Administrative Law, (1980) 58 Can. B.R., 320. 79 Mcnabb v. U.S., 318 U.S. 332, 347 (1943). See, supra, 11-12. In this connection, Schwartz observes as follows: "The focus of administrative law today is the administrative process itself-the procedures that administrative agencies must follow in exercising their powers." Adm. Law--A Casebook, 59 (1988). 80 424 U.S. 1 (1977). 81 Buckley v. Valeo, 424 US 121 (1977). Also see, Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). 82 462 US 919 (1983). 83 Legislative powers are exerciseable by both Houses of Congress and not by one House alone. 84 A bill is passed by the two Houses and is then presented to the President for his approval. 85 Indra Sawhney v. Union of India, AIR 2000 SC 498 : (2000) 1 SCC 168. 86 This aspect, namely, settlement of disputes between the citizen and the Administration constitutes only a small sector of Droit Administratif. 87 The Conseil d'Etat was established in 1799. Originally it was an advisory body but gradually it also took over adjudicatory functions. This became necessary in 1790 when civil courts were prohibited from hearing any matter involving the Administration. 88 In its exploratory Working Paper, No. 13 of 1967, the Law Commission referred to the feeling expressed by some that one reason for the British Judges not being able to get "near enough" to the administrative decision could be their "lack of expertise in the administrative field." As against this, the judges of the Conseil d'Etat possess high degree of expertise. This is one of the factors which have given to that body "the qualities which have been so widely admired." See, (1967) Public Law, 185; supra, 20. After reviewing the views and criticisms on this paper, the Commission finalised it and submitted it to Lord CHANCELLOR in 1969.

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89 For references on Droit Adrninistratif see, BROWN and GARNER, French Administrative Law (1983); MITCHELL, Constitutional Law (1968); HAMSON, Executive Discretion and Judicial Control, (1954); SCHWARTZ, French Administrative Law and the Common Law World (1954); CAROL HARLOW, Remedies in French Administrative Law, (1977) Pub. Law 227; Z.M. NEDZATI and J.E. TRICE, English and Continental system of Adm. Law (1978). Also, P.M. GAUDEMET, Droit Administratif in France in DICEY, The Law of the Constitution, App. I, 475-491 (1959). 90 See MITCHELL, The Causes and Consequences of the Absence of System of Public Law in the United Kingdom, (1965) Pub. Law, 95. Also, 46 Pub. Adm., 167 (1968); (1967) Political Quarterly, 380. 91 See, WADE, Crossroads in Adm. Law, (1968) Current Legal Problems, 75-93. JAFFE, Research and Reform in Eng. Adm. Law, (1968) Public Law, 119-134. Also see, supra.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER III CLASSIFICATION OF FUNCTIONS

CHAPTER III CLASSIFICATION OF FUNCTIONS 1. THREEFOLD CLASSIFICATION An administrative lawyer has at times to classify action taken by the Administration into three categories, viz.: legislative, administrative and quasi-judicial (or adjudicative, the term commonly used now). Although many thoughtful scholars have decried such a conceptual classification of functions discharged by the Administration, and although it is usually too difficult or artificial to make such a classification, and although in recent years the courts have made some attempt to reduce the need for, and reliance on, such a classification (especially between administrative and quasi-judicial)1, the fact remains that in the present state of Administrative Law, it is not possible to avoid such a labelling exercise, as much of the law relating to executive government is still based on such a classification. For example, distinguishing between legislative function, on the one hand, and administrative /quasi-judicial function, on the other hand, assumes practical significance inter alia for the following reasons:(i) Publication: Usually, a legislative order is required to be published in the official gazette,2 but not an administrative order, the reason being that the former is of a general nature and applies to many persons and hence it should be widely known, but the latter applies to a specified individual or individuals and, therefore, it is enough if it is served on the affected person or persons. This can be illustrated by reference to the position under the Essential Commodities Act, 1955. Under S. 3, the Central Government may by 'order' regulate several things--movement of essential commodities, their prices, distribution, etc. Under S. 3, the Administration can make either a legislative or an administrative order. This becomes clear from S. 3(5), which lays down that an order of a 'general nature'; or one affecting a 'class of persons' has to be notified in the official gazette, but an order directed to a 'specified' individual need only be served on the concerned person without being published in the gazette.3 Many examples can be found of statutory provisions under which the Administration can issue either a legislative or an administrative order. (ii)

(iii)

Procedure: Different procedures may have to be followed by the Administration in making orders of different kinds. There arise procedural differences depending on the nature of the order in question. As we shall see later, for making a quasi-judicial order, the Administration must follow principles of natural justice, even when the specific statute under which the action in question is being taken is silent on the point.4 But, in case of exercise of legislative power, the Administration need not follow natural justice;5 the Administration must follow only such procedural norms as may be stipulated in the relevant statute, there being no obligatory implied procedural requirements to be followed in such a case.6 Judicial Review: As will be seen later, the scope of judicial review is narrower in respect of legislative function than in case of administrative or quasi-judicial function. For example, while

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(iv)

mala fides may be pleaded as a ground for challenging an administrative action, it is doubtful that the same ground may be invoked to challenge a legislative order.7 Sub-delegation: Differences between legislative and non-legislative functions also may become meaningful when questions of sub-delegation of powers arise.8

All the above-mentioned points are considered in greater detail at proper places in the book. Before going further with the matter of classification of functions, it needs to be pointed out that an extremely complicated problem of to-day's Administrative Law is that of terminological inexactitude. For example, the term 'administrative' is used in two senses. One, a broad sense, e.g., every thing pertaining to the Administration is administrative. Thus, the expression Administrative Law denotes the law pertaining to the Administration and deals with the whole gamut of powers exercised by the Administration. In the broad sense, the word administrative denotes all kinds of bodies participating in the administrative process (other than the legislature and the courts), and all kinds of functions discharged by them, whether legislative, administrative, quasi-judicial or of any other kind. Two, the word 'administrative' is used in a narrow sense, i.e., it denotes only a limited category of functions discharged by the Administration--functions in juxtaposition to legislative and quasi-judicial functions. It is from the context in which the word 'administrative' is used that one can identify the sense in which the word is used. More has been said on this point later in the book. 2. IDENTIFICATION OF A LEGISLATIVE ORDER The present day Administrative Law suffers from conceptual confusion. The terms legislative, administrative and quasi-judicial are used constantly, but none of these concepts is susceptible of an articulate definition. One of the most difficult problems of Administrative Law is to identify the nature of a function discharged by the Administration. There is really no bright line of distinction between these concepts. Howsoever the definition of any these concepts be formulated, it either excludes, or includes, something which ought to be included, or excluded, from the purview of that concept. Whatever test is propounded to identify these concepts, there will always be some exceptional situations falling on the other side of the line. The problem to consider at this place is: how to distinguish 'legislative' from other types of functions? When a statute confers power on the Administration to make rules, regulations, bye-laws etc., it is easy to identify them as delegated legislation. But how to identify delegated legislation when these terms are not used. Are such functions as price-fixing, wage-fixing, fixing tax rates legislative in character? No articulate norms have been evolved so far to distinguish between legislative and non-legislative functions. Difficulties in characterisation arise because of several reasons. One, many a time, administrative bodies perform and exercise mixed functions. For example, the Election Commission exercises legislative, administrative and adjudicatory functions. Two, as stated above, a statute may give power to the Administration to make orders for certain purposes. Such orders may be legislative or non-legislative. To take one example, the Imports and Exports (Control) Act, 1947 confers power on the Central Government to regulate import and export of commodities through an order published in the Gazette of India. Under this power, both types of orders--legislative or non-legislative--can be made. In the U.S.A., two tests have been propounded to identify legislative functions. One test depends on the element of applicability, i.e., legislative function is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class. As against this, an administrative decision is one which applies to specific individuals or situations. Similarly, a power to take specific action is administrative; power to take general action is legislative. Another test is that a rule prescribes future patterns while an administrative decision determines liabilities on the basis of present or past facts.9 The Administrative Procedure Act emphasizes upon the second test and not the first.10 The key factor in the definition of a rule in A.PA. is that of 'future effect', and not the distinction between 'generality' and 'particularity'. This means that statements of particular applicability, i.e. applying to specific individuals or situations but having 'future effect', may be characterised as legislative in nature. Both these tests, viz. generality and futurity, are workable in a great majority of situations, though there may arise some situations where the tests may not work. In England, the Committee on Ministers' Powers evolved a definition which included the elements of both the above tests, viz., legislation is the process of formulating a general rule of

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conduct, without reference to particular cases, and usually operating in futuro; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.11 The Committee gave the following examples of administrative powers which are "in no sense legislative": (i) the power to issue a particular command; (ii) the power to issue a licence; (iii) the power to remit a penalty; (iv) the power to inspect premises; (v) the power to inquire.12 In modern times, de Smith has emphasized the applicability test. He observes: "A distinction often made between legislative and administrative acts is that between the general and the particular." And, further, "A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice."13 With the help of the above-mentioned test of general applicability, it is possible to distinguish legislative functions from any other kind of functions in a large number of situations. But then there may be cases where the test may break down for it may not be easy to distinguish 'general' from 'particular'. The test of generality of an order is not very articulate. It gives enough scope for judicial policy to have play. The distinction between that which is general and that which is particular in its application is itself only a matter of degree. For example, an order fixing price of a commodity may be treated as of general applicability if the commodity involved is something like rice or wheat which is produced by thousands of farmers, but may be treated as of particular applicability if the commodity involved is, say, pig iron which is produced by a few producers. The difficulties of characterising a function can be very well illustrated by reference to some court cases. In Express Newspapers Ltd. v. Union of India, 14 a statutory wage board was appointed to fix the rates of wages of working journalists. The Board consisted of an equal number of persons nominated by the Central Government to represent employers in relation to the newspaper establishments and working journalists with an independent person as chairman. The Supreme Court considered the nature of the function discharged by the wage board. This became important for several reasons: (i) whether the decision of the wage board was open to judicial review; (ii) whether the principle of natural justice applied to its proceedings. If the functions of the Board were held to be administrative or legislative in character they could not be subject to appeal to the Supreme Court under Art. 136,15 and natural justice would not be applicable to the proceedings before the board.16 The Court pointed out that a practical difficulty arises in characterising the functions of administrative agencies because their functions do not fall in watertight compartments. This difficulty may be resolved by the Court considering whether the agency performs a predominantly legislative or administrative or quasi-judicial function.17 Since the Board's determinations would bind not only the employers and employees and not only in the present but in the future as well, its function could be regarded as being of legislative character. But as the wage board also adjudicates between the employers and employees and thus discharges a function like that of an industrial tribunal, it could be said that it discharges a quasi-judicial function. After analysis, the Court refused to pronounce a final verdict in the instant case. In India, formerly, the courts proceeded on the basis that a power to fix prices is administrative rather than legislative in nature.18 But then the judicial view underwent a change. In S.I. Sytdicate,19 was challenged a notification issued by the Central Government under the Sugar (Control) Order, 1966, fixing ex-factory prices of sugar for the sugar factories specified in the order. Under the Control Order, in fixing sugar prices, the government was to give regard to the costs given in the Report of the Sugar Enquiry Commission and subsequent rise in the cost of production. The Supreme Court characterised the price-fixing power as "more in the nature of a legislative measure." This approach excludes the invocation of the concept of natural justice in the exercise of price-fixing function. But, as the Court insisted, the "criterion" adopted to fix the price "must be reasonable," and in S.I. Syndicate, while adjudicating upon the validity of the price fixing order, the Court invoked such considerations as are more pertinent to an administrative rather than a legislative order. For instance, the Court stated that Government cannot fix any arbitrary price, or fix a price on extraneous considerations, and reasonable criteria have to be applied in fixing prices; there should be reasonable nexus between the matters which are taken into account in exercising a power and the purposes for the exercise of that power. As we shall see,20 these are tests more pertinent to the exercise of discretionary administrative power. In the instant case, the Court rejected the writ petition as it was not satisfied that in fixing the price of sugar the government took into consideration any extraneous matters or that it acted arbitrarily or unreasonably in doing so. In later cases, however, the Supreme Court has come out more clearly in favour of

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characterising the rate-fixing power as legislative.21 In this connection, reference may be made to a recent landmark Supreme Court case Union of India v. Cynamide India Ltd. 22, in which the Court has examined in depth the nature of the price-fixing function. The Court has ruled that price fixation under the Drugs (Price Control) Order, 1979, is a legislative activity. The Court has noted that "the distinction between the legislation and administration is disappearing into an illusion with the proliferation of delegated legislation" and so it is "difficult in theory and impossible in practice" to attempt to draw a distinct line between legislative and administrative functions. Nevertheless, such distinction needs to be made for deciding whether natural justice applies. The test laid down by the Court for the purpose of drawing such distinction is: "A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases, an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of Policy. Legislation is process of formulating a general rule of conduct without reference to particular cases and usually operating in future, administration is the process of performing particular acts of issuing particular orders or of making decisions which apply general rules to particular cases."

Here the Court refers to both the aspects of a legislative act, as mentioned above, viz.: its generality and futurity. As regards the latter, the Court has observed further that while "adjudication is determinative of the past and the present" facts and decides rights and liabilities, "legislation is indicative of the future" course of action. Thus, generality and prospectivity distinguish a legislative from an administrative /quasi-judicial act. The The Drugs (Price Control) Order, 1979, was made by the Central Government in exercise of its powers under Sec. 3(2)(c) of the Essential Commodities Act, 1955. The Central Government issued notifications under Para 3 of the Order fixing the maximum prices at which the various indigenously manufactured bulk drugs could be sold by the manufacturers. Notifications fixing the retail prices of the formulations were also issued. These notifications were struck down by the Delhi High Court on the ground of "failure to observe the principles of Natural Justice". The Court's view was that since the existing drug prices were being changed causing loss to the manufacturers, they ought to have been given a hearing before deciding upon the new prices. On appeal, the Supreme Court held in the instant case that "price fixation does not concern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character, not directed against a particular situation. It is intended to operate in the future. It is conceived in the interests of general consumer public. The right of the citizens to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge no more than the price fixed." Price fixation assumes legislative character if viewed from the angle of its general application, the prospectivenes of its effect, the public interest served, and the rights and the obligations flowing therefrom. However, there may be circumstances when "Price fixation may assume administrative or quasi-judicial character" e.g., when it relates to acquisition or requisition of goods or property from an individual. In such a case, price has to be fixed separately in relation to the concerned individual. Such a situation may arise when the owner of the property or goods is compelled to sell his property to the Government or its nominees at the price directed by the legislature to be determined according to statutory guidelines laid down by it.23 Legislative activity whether plenary or subordinate is not subject to the rules of Natural Justice. Parliament may provide in a statute for a notice and a hearing. Failure to observe the statutory requirement renders the subordinate legislation invalid under the theory of procedural ultra vires.24 But if the legislature is silent, or has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read Natural Justice into such legislative activity. Thus, the Court has ruled that "price fixation is a legislative activity and the question of observing principles of natural justice does not arise". Accordingly, the price fixation under the Drugs (Price Control) Order, 1979 has been held to be a legislative activity. What the Drugs (Price Control) Order contemplates is "such enquiry" by the Government "as it thinks fit". This provision enables the Government to obtain relevant information from any source and is not intended to vest any right in any other body. In the present case, the enquiry under Para 3 of the Drugs (Price Control) Order is intended for fixing the maximum price at which a bulk drug may be sold with a view

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to regulate its equitable distribution and make it available at a fair price. In arriving at a price of a bulk drug the Government is expressly required by the order to take into account the average cost of production of such bulk drug by an "efficient manufacturer" and allow a reasonable return on net worth. The Government is free to collect information from any source including the manufacturers. The enquiry contemplated by Para 3 of the Drugs (Price Control) Order is an enquiry leading to legislative activity. Such enquiry must of necessity comply with statutory conditions, if any, but principles of natural justice cannot be impliedly read into it unless it is a statutory condition.25 In State of U.P. v. Renusagar Power Co., 26 referring to Cynamide, Chinnappa Reddy, J., has again observed that price fixation is more in the nature of a legislative activity than any other. Due to the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative, quasi-judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions is difficult in theory and impossible in practice. In the instant case, the Court has ruled that the power given to the government to grant exemption from the operation of a statute may be regarded as quasi-legislative and quasi-administrative. When this power is exercised with reference to any class it would be in the nature of subordinate legislation, but when the power is exercised with reference to an individual, it would be regarded as administrative. In Renesagar, a decision on exemption sought by a company from payment of the electricity duty on self-generated electricity for its own consumption, has been held to be quasi-judicial in nature. This means that the government has to give a hearing to the company before deciding the matter. On the other hand, in Bakul,27 an exemption order of a general nature has been held to be legislative in nature. It may however be emphasized that the courts should be wary of unduly extending the frontiers of legislative function, as this concept is often invoked by the Administration to deny hearing to the affected persons. The more the concept of legislative function expands the less scope there will be to invoke procedural safeguards for the affected interests. In this way, much of the gains made by expanding the concept of natural justice will be neutralized correspondingly.28 It also needs to be emphasized that even though the order in its final form may seem to be legislative, it may still be preceded by some kind of an adjudicatory process. Certain facts may have to be determined by the Administration before making the order. For example, it is possible to argue that in price-fixation, two major considerations are: cost of production to a producer and his margin of profit. Both of these seem to be adjudicative facts and that fairness demands that these facts ought not to be decided by the concerned authority without giving a hearing to the producer as these facts directly pertain to him. There seems to be no reason to deny application of natural justice to the pre-order stage in such a case. An administrative lawyer cannot afford to ignore the pre-order process and concern himself merely with the end product. The courts should investigate the possibility of applying adjudicative process in a situation even if the end product is regarded as legislative. More will be said in this connection later. Here an instructive case from New Zealand may be cited.29 Under a statutory provision a tribunal was appointed to fix prices for goods and services. To discharge that function, the tribunal could hold such inquiries and conduct such investigations as it thought fit. The Court of Appeal held by majority that the tribunal was bound to give a hearing to the vendors of goods before fixing the price of any class of goods. The Court considered the question on the basis whether the tribunal discharged an administrative or a quasi-judicial function. The majority view was that the decision of the tribunal affected the rights of the vendors and that it should act judicially. On the other hand, the minority view was that the tribunal had to decide questions on the basis of "policy or expediency" and that its function was administrative in nature. The question whether price-fixing was a legislative function was never raised in the case.30 In this connection, an Indian case State of Assam v. Bharat Kala Bhandar 31 may be mentioned. The executive issued a notification under the Defence of India Rules, 1962, notifying certain employments as essential "for securing the public safety and for maintaining supplies and services necessary to the life of the community." Another notification ordered payment of an ad hoc specific cost of living allowance per month to all workers drawing pay up to Rs. 400 per month and also to workers employed on daily wages in essential services. A question was raised before the Court about the necessity of consultation of the concerned interests before the issuance of the two notifications. The Supreme Court ruled that it was necessary to consult the interests concerned before the notifications were issued. The Court stated: "The effect of the exercise of such power is to unsettle settled relations between employers and employees which may be

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existing for along time and which may be the outcome either of contractual relations or even of industrial awards".32 The Court went on to say that such "wide" and "far-reaching" powers ought not to be exercised without consulting the interests concerned. In this case, the government did enter into some kind of consultation but the Court did not find the same to be adequate and, thus, quashed the order. The Court insisted that "some kind of collection of data with the help of the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred by sub-rule (4)..." According to the above mentioned tests for classification of functions, the notification in question could be regarded as being of legislative character and yet the Court insisted on some kind of consultation before its issue. This is the right approach. In the instant case, the Court did not put any label on the power exercised but analysed its effect. If a rule lays down a prospective law, may be no hearing or consultation is mandated, but when established rights or interests are sought to be disturbed, then the affected interests ought to be given some participation in the decision-making process. Hearing or consultation ought not to be denied by adopting a mere formalistic stance-whether the order in question is legislative or quasi-judicial; the important consideration is its effect on established interests. In some cases, there may be some adjudication prior to issuing of a 'legislative' order. Hearing in a legislative order is sought to be excluded on the analogy of a legislature which does not hear any body while enacting a law. But this is not a correct analogy for the legislature being a representative body is not likely to take arbitrary action; but when the Administration exercises legislative function, there is no such in-built safeguard. From this point of view, in Cynarnide, the High Court approach seems to be preferable to the Supreme Court view.33 This is the approach adopted by the Supreme Court in Shephard.34 The Reserve bank prepared three separate schemes of amalgamation of three private banks with nationalised banks. This involved dispensing with the services of 125 employees of the private banks. These schemes were challenged by these employees, inter alia, on the ground that no opportunity of being heard was given to them. The Reserve Bank argued that the 'scheme-making' was 'legislative' in character and, thus, was outside the purview of the ambit of natural justice. The Supreme Court rejected the contention of the Bank and upheld the employees' argument. Two points may be noted in this connection. One, under a provision in the Banking Regulation Act, any such scheme was required to be placed before both Houses of Parliament. This could be regarded as indicative of scheme-making being a legislative activity.35 Still, the Court argued that there were similar statutory provisions requiring placing of material before the two Houses of Parliament yet not involving any legislative activity. Two, the schemes in question applied to a large number of employees of the three banks, of whom 125 were adversely affected as they were to lose their jobs. And, yet, the schemes were held not legislative in nature. The Court seems to have felt concerned that to hold the schemes as legislative would deprive the affected employees of any opportunity to defend themselves against whatever charges there might be against them resulting in their dismissal from service. Thus, the test of 'generality' to distinguish between a legislative or an adjudicatory act is only a broad test which may not necessarily be true or decisive always, and other considerations may have to be taken into account by the courts to decide the nature of a particular act of the Administration. The Govt. of India in exercise of the powers conferred by Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 framed the scheme of amalgamation of the New Bank of India with the Punjab National Bank called the New Bank of India [#8968]Determination of Placement of Employees (Officers and Workmen) of the New Bank of India in Punjab National Bank[#8969] Scheme, 1993 which the High Court held to be not legislative in view of the decision of the Supreme Court in K.I. Shephard v. Union of India 36 where in some of private Banks were amalgamated with certain Banks in terms of separate schemes drawn under Section 45 of the Banking Regulation Act, 1949 and on examining the said Section 45(11), the Supreme Court came to hold that merely because a scheme frame is required to be laid before both Houses of Parliament after the same has been sanctioned by the Central Govt., the scheme cannot be held to be legislative in nature. The Supreme Court was of the view that the High Court had failed to notice the fundamental distinction between the provisions of Section 45 of the Banking Regulation Act, 1949 and Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 as under the latter, the scheme framed is required to be laid before each House of Parliament for a total period of 30 days and Parliament has the power to agree to the scheme or make any modification or reject it, only then the scheme becomes effective whereas under the former, the scheme framed has merely to be placed before Parliament and nothing further. Hence, the Apex Court held that scheme framed under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 is a legislative one.37

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Reference may also be made here to Govt. of Mysore v. J.V. Bhat 38 In this case, the Supreme Court ruled that the government could not issue a notification declaring an area as a 'slum area' or a 'clearance area' without giving a hearing to the property owners in the said area as such a notification had deep and abiding impact on the property rights of the people. This notification was of general applicability and, as such, could be regarded as legislative in nature but still the Court insisted on hearing being given to the affected parties and, in fact, quashed the notification on the ground of non-hearing. One reason for such an approach was that at that time, Art. 19(1)(f), a fundamental right in the Constitution protected property rights and only reasonable restrictions (both substantive as well as procedural) could be imposed on property rights. Therefore, to make substantive restrictions on property rights reasonable, it was necessary to have proper procedural safeguards. Again, in S.C. & Weaker Section Welfare Association v. State of Karnataka, 39 a notification cancelling an earlier notification which had declared an area as a slum clearance area was quashed by the Supreme Court on the ground that it adversely affected the interests of the slum dwellers as no development would now take place in the slum area in question. The earlier notification was a step in the direction of improving the condition of slum dwellers. The later notification by rescinding the earlier notification affected them adversely. As such, therefore, the slum-dwellers deserved to be heard before the notification was rescinded. This notification could very well be regarded as legislative in nature as it was of a general application as it applied to a large number of slum dwellers and still the Court insisted on a hearing being given to the affected persons. There was no question of Art. 19(1)(f) in this case. The Court did not at all go into the question whether the impugned notification could be regarded as legislative in character. These cases show that while the general principle is that no hearing need be given by the Administration when it is discharging a legislative function, there may be circumstances when the courts may relent on the point and adopt somewhat liberal approach on the matter of procedural safeguards to the affected persons.40 It may also be pointed out that, for some time now, the doctrine of "legitimate expectation" has come into being. A person can claim hearing on the basis of "legitimate expectation" when the Administration affects him adversely through a legislative order.41

1 See, infra, Chapter IX . 2 See, infra, Chapter VI . 3 See, infra, Chapter XV . 4 See, infra, Chapter IX . 5 Tulsipur Sugar Co. Ltd. v. Notified Area Committee, AIR 1980 SC 883 : (1980) 2 SCC 295; JAIN, Cases, 284; Union of India v. Cynamide India, AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720; Bates v. Lord Hailsham, (1972) WLR 1372; JAIN, Cases, 626. Also see, infra, Chapters VI and IX . 6 See, infra, under Procedural ultra vires, Chapter V and Consultation, Chapter VI . 7 See, infra, Chapters V and XIX . 8 See, infra, Chapters VII, XXI . 9 SCHARTZ, American Administrative Law, 146 (1984); Administrative Law: A Case-book, 229-240 (1988). 10 NATHANSON, Some Comments on the Administrative Procedure Act, 41 Ill. L.R. 368 (1946). Also see, SCHWARTZ Casebook, 230-232 (1988). 11 Report, 20. See, supra Chapter II . 12 Report, 15-20. 13 Judicial Review of Administrative Action, 71 (1980). According to WADE, Administrative Law, 848 (1988), "... legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation." For further discussion, see, infra, Chapter XV . 14 AIR 1958 SC 578 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25]: 1959 SCR 12.

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15 Infra, under Judicial Control. 16 Infra, Chapter IX. 17 See, infra, Chapter IX, for differentiation between administrative and quasi-judicial functions. 18 Dwarka Prasad v. Uttar Pradesh AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND 1954 SC 1]: 1954 SCR 803; Diwan Sugar Mills v. Union of India, AIR 1959 SC 626 [LNIND 1959 SC 10] [LNIND 1959 SC 10] [LNIND 1959 SC 10]: 1959 (2) Supp SCR 123; Subhash Oil Industries v. State of U.P., AIR 1975 All 19. In Premier Automobiles v. Union of India, AIR 1972 SC 1690 [LNIND 1971 SC 596] [LNIND 1971 SC 596] [LNIND 1971 SC 596]: 1972 (2) SCR 526, the Supreme Court suggested the appointment of a commission for the purpose of suggesting a fair price for the cars manufactured by car manufacturers after taking into consideration all the relevant factors. There were only three car manufacturers at the time. 19 S.I. Syndicate v. Union of India, AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], 464 : (1974) 2 SCC 630 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257]. The Court observed in this connection: "Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable." 20 Infra, Chapter XIX. 21 Prag Ice and Oil Mills v. Union of India, AIR 1978 SC 1296 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978 SC 69]: (1978) 3 SCC 459. In this case, a statutory order fixing the sale price of mustard oil was challenged. 22 AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720. See, JAIN, Cases, Chapter II, 13, 310. 23 Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 223. See, JAIN, Cases, Chapter II, 19, 185. 24 Infra, Chapter V. 25 See, JAIN, Cases, Chapter V . 26 AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761 : (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]: (1991) 70 Comp Cas 127. 27 Bakul Cashew Co. v. S.T. Officer, Quilon, AIR 1987 SC 2240: (1986) 2 SCC 365: (1986) 159 ITR 565; Also see, P.J. Irani v. State of Madras, AIR 1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192]: 1962 (2) SCR 169; infra, Chapter XVII. For exemption clauses, see, infra, Chapter IV . 28 On Natural Justice, see, infra, Chapter IX . 29 New Zealand United Licensed Victuallers Association of Employers v. Price Tribunal, (1957) NZLR 167. 30 In the U.S.A., rate-making is regarded as legislative in character: See, Parentis v. Atlantic Coastline, 211 U.S. 210 (1908). But, when rates are fixed for a commodity being produced by one manufacturer only, it is regarded more as a quasi-judicial rather than a legislative activity and the manufacturer has a right to be heard: see, SCHWARTZ, Casebook, 353-54 (1988). Also, it may be noted that in 1936 in the first MORGAN case ( Morgan v. United States, 298 U.S. 468), the Supreme Court regarded the proceedings as quasi-judicial while fixing future rates of stockyard services. See, DAVIS, I Administrative Law Treatise, 416, 419 (1958). 31 AIR 1967 SC 1766 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND 1967 SC 123]at 1768 : 1968 (1) LLJ 25 [LNIND 1967 SC 124] [LNIND 1967 SC 124] [LNIND 1967 SC 124]: 1967 (3) SCR 490 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND 1967 SC 123]. 32 State of Assam v. Bharat Kala Bhandar, AIR 1967 SC (1766) at 1774: (1967-68) 33 FJR 273: (1968) 16 FLR 96. 33 In the U.S.A., A.P.A. provides for a consultative procedure in rule-making. No such procedure is prescribed in India: see, infra, Chapter VI . 34 K.I. Shephard v. Union of India, AIR 1988 SC 686 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]: 1988 (1) LLJ 162: (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]. See, JAIN, Cases, Chapter II, 23 and Chapter VIII, 586. Also, H.L. Trehan v. Union of India, AIR 1989 SC 568 [LNIND 1988 SC 557] [LNIND 1988 SC 557] [LNIND 1988 SC 557]: (1989) 1 SCC 764: (1989) 65 Comp Cas 673; JAIN, Cases, 590. 35 On 'laying procedure', see infra, Chapter VI . 36 (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] : (1988) 1 SCR 188 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]. 37 New Bank of India Employees' Union v. Union of India, (1996) 8 SCC 407 [LNIND 1996 SC 565] [LNIND 1996 SC 565]

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[LNIND 1996 SC 565], 430 (para 32): AIR 1996 SC 3208 [LNIND 1996 SC 565] [LNIND 1996 SC 565] [LNIND 1996 SC 565]. 38 AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317]: (1975) 1 SCC 110; JAIN, Cases, 516. 39 AIR 1991 SC 1118: (1991) 2 SCC 604; JAIN, Cases, 519. 40 Also see, infra, Chapter VI ; Chapter IX . 41 See, infra, Ch VI, 163, under "Consultation," and also Chapter IX, notes 44a-47, 64b-64e and 301.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER IV DELEGATED LEGISLATION

CHAPTER IV DELEGATED LEGISLATION 1. INTRODUCTORY A trend very much in vogue to-day in all democratic countries is that only a relatively small part of the total legislative output emanates directly from the legislature. The bulk of the legislation is promulgated by the executive and is known as Delegated Legislation. Such legislation is made by a body by virtue of the powers conferred on it by a statute. Usually what happens is that the legislature enacts a statute covering only the general principles and policies relating to the subject-matter in question, and confers rule-making powers on the government, or some other administrative agency, to fill in the details. This technique of delegated legislation has assumed central importance in modern Administrative Process. Delegated legislation is being increasingly used as a major component of the method of modern government. It is so extensively used today that there is no statute enacted by the legislature which does not delegate some legislative power to the executive. Delegated legislation is so multitudinous that the statute book will not only be incomplete but even misleading unless it be read along with the delegated legislation which amplifies and supplements it.1 In no democratic country does the legislature monopolise the whole of the legislative power; it shares this power with the government and other administrative agencies. Over the years, delegated legislation has increased not only in bulk but in scope as well so much so that it is used not only to lay down details but also to lay down, amplify and change government policies from time to time. Delegated legislation has been defined by Salmond as "that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority". (See: Salmond, Jurisprudence, 12th Edn., page 116).2 "Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (as it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation."3 It is an accepted position in law that to "delegate" to another is not to denude yourself.4 As was observed by WILLS, J. in Huth v. Clarke:5 "In my opinion the word, in its general sense and as generally used, does not imply, or point out to, a giving up of authority, but rather the conferring of authority upon someone else."

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As was observed by Lord COLERIDGE, C.J. in 25 QBD 304,6 the word "delegation" implies that powers are committed to another person or body which are as a rule, always subject to resumption by the power delegating. The word "delegate" means little more than an agent. An agent exercises no power of his own but only the powers of his principal.7 In general, a delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except insofar as it may already have become bound by an act of its delegate.8 The term delegated legislation is used in two senses: (i) the exercise by a subordinate agency (a delegate of the legislature) of legislative power delegated by the legislature; or (ii) the subsidiary rules themselves which emanate from the subordinate agency as a result of the exercise of power as mentioned in (i). As administrative lawyers, we are interested more in the technique, i.e. in aspect (i) mentioned above, rather than in the actual rules themselves as mentioned in (ii), and so the term 'delegated legislation' is used here mostly in the first sense, though, at times, in the second sense as well. The technique of delegated legislation is very extensively used in India. The legislatures in India delegate broad legislative powers to the Administration as will be clear from the following discussion. The term often used in India is 'subordinate legislation'; it conveys the idea that the authority making the legislation is subordinate to the legislature and derives its powers from it. In the U.S.A., the term often used is 'rule-making' and this term is used in India also at times. Delegated legislation (in the second sense mentioned above) is designated by several names, such as, rules, regulations, bye-laws, orders, schemes9etc. As pointed out by RAY, C.J. in Sukhdev Singh v. Bhagatram.10 "Rules Regulations, Schemes, Bye-laws, Orders made under statutory powers are all comprised in delegated legislation." According to the legislative practice in India, the term 'rules' is more commonly employed. The terms 'regulations' and 'bye-laws' are usually used to denote the legislation framed by statutory, corporations under delegated legislative power. Generally, in respect of these corporations,11 there are two levels of delegated legislation: the government has power to promulgate 'rules' in respect of these bodies, and the corporation is also given power to promulgate 'regulations' or 'bye-laws', and these different terminologies are used to distinguish government-made rules from the corporation-made sub-legislation.12 The term 'bye-laws' is also used for the sub-legislation made by municipal bodies. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations.13 In terms of Section 127(1) of the M.P. Municipalities Act, 37 of 1961, the power to impose the tax has to be exercised by the Municipal Council, subject to any general or special order of the State Govt. The Municipal Council exercises power as a delegatee and the power exercised under Section 127 is a delegated legislation.14 Examples of promulgating delegated legislation through 'orders' are provided by several Acts, e.g., the Imports and Exports (Control) Act, 1947, and the Essential Commodities Act, 1955. At times, a statute may provide for making of delegated legislation under several appellations, e.g., the Essential Commodities Act, 1955, uses three terms--'order', 'notified order' and 'notification'--for the delegated legislation which the Central Government can make in exercise of its powers under several sections in the Act.15 The Supreme Court observed: "The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the statue. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern-day society being complex, it cannot possibly foresee every administrative difficulty that may arise after the statue has begun to operate. Delegated legislation fills those

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needs. The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature."16

As to the need of delegation of legislative powers by the Central Govt. to the State Govt., the Supreme Court, in Govt. of A.P. v. Medwin Educational Society,17 observed that keeping in view the practical difficulties faced by the Central Govt. or the statutory bodies like the Medical Council of India or the University Grants Commission, some power is sought to be delegated to the State Govt. so as to make the parliamentary statute completely workable. Such "play in the joint" is also desirable having regard to the federal structure of our Constitution. (para 35) The question of such delegation of power under the Medical Colleges Regulations, 1993 read with the scheme framed thereunder has got to be considered having regard to the limited manpower and resources available to the Medical Council and the Dental Council on the one hand, vis-à-vis the plentitude of resources including the expertise in the matter of local conditions in the State on the other. (para 29). In delegating such a power to the State Govt., it is idle to contend that the Central Govt. has abdicated its powers in favour of the State Govt. in terms of Entry 66, List I of the VII Schedule of the Constitution. Parliament is empowered to enact an Act for the purpose of ensuring coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. By reason of such a provision, the Central Govt. cannot be said to abdicate its power in favour of the State. Thereby only a part of its function is required to be carried out by the State. (para 31) The rules framed by a statutory body have the force of law.18 The canteen facility of a residential university, the inmates of whose hostel are not permitted to have food from outside, cannot be said to be a mere welfare service to the students. The canteen facility is a requirement of the Regulations framed under the relevant Act and thus they have statutory sanction and force.19 The Bye-laws are laws in force in India.20 However, the Orissa Police Manual, 1940 does not have any force of law in view of the framing of the Orissa Ministerial Service (Method of Recruitment to Posts of Junior Assistants in the Offices of Heads of Departments) Rules, 1975, issued under Art. 309 of the Constitution and covering the Ministerial Staff of the DGP/IGP.21 Under Section 90 of the Jaipur Development Authority Act, 1982, the Government can frame the policy and issue guidelines for general application or for a class of persons or area or based on some other criteria as may withstand the test of Art. 14 of the Constitution.22 2. FACTORS LEADING TO THE GROWTH OF DELEGATED LEGISLATION Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by Parliament, delegated legislation also came to be made by an authority to which the power was delegated by Parliament. It is no use going back into the pages of history or to look to the Statute of Proclamations, 1539 under which Henry VIII was given extensive powers to legislate by proclamation. What is intended to be emphasised is that there has always been, and continues to be, need for delegated legislation. The exigencies of the modern State, especially the social and economic reforms, have given rise to the making of delegated legislation on a large scale (by authorising the Government, almost in every statute passed by Parliament or the State Legislature to make rules) so much so that a reasonable fear could have arisen among the people that they were being ruled by the bureaucracy.23 A number of factors have been responsible for the growth of delegated legislation in the modern democratic state.24 The fast-changing scenario of economic social order with scientific development spawns innumerable situations which the legislature possibly could not foresee, so the delegatee is entrusted with power to meet such exigencies within the inbuilt check or guidance and the declared policy.25 The increase in the scope and size of government has led to the growth of delegated legislation. As has already been stated26, the modern state functions on a very wide front and manages the day to day lives of the people to a very large extent. It directs a major part of the socio-economic development of the people. In India, since independence, the government has been endeavouring to evolve a socialistic pattern of society through democratic means which involve massive planning and control of various activities, especially private trade and commerce. All these circumstances create the need for more and more law. Law has become an accepted instrument of socio-economic change and development in the democratic societies. Law is needed for taking any action affecting any body's person, property or any other right. The demand for law is practically insatiable to-day. This generates a great pressure of work on the legislature which not only makes

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laws but also discharges several other functions, such as, supervising the government, discussing and influencing its policies, discussing proposals for taxation and expenditure, ventilating people's grievances, holding debates on matters of national importance. During the laissez faire era, when the government discharged only limited functions, the legislature could possibly enact all legislation that was needed, but to-day it cannot cope with all the legislative work by itself unaided. A method to economise legislative time is delegated legislation. The legislature saves time by confining itself to laying down broad policies and principles in the law it enacts and leaving the task of shaping and formulating details to the concerned administrative agency. If the legislature were to attempt enacting comprehensive laws including not only policies but all necessary details as well, its work-load would become so heavy that it may not be able to enact the quantity of law on diverse subjects which the public demands of it and which only the legislature can enact. It is, therefore, essential to free the legislature from the burden of formulating details so that it can better devote its time to the consideration of the essential principles and policies. As the Committee on Ministers' Powers (CMP hereafter)27 states tersely: "The truth is that if Parliament were not willing to delegate law-making power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires.28 At another place, the Committee talks of the practice in these words: "It is a natural reflection, in the sphere of constitutional law of changes in our ideas of government which have resulted from changes in political social and economic ideas, and of changes in the circumstances of our lives which have resulted from scientific discoveries."29 "The practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out of practical necessity and pragmatic needs of the modern welfare state".30 Also, if each piece of legislation enacted by the legislature were to be complete with all details, the legislation would itself become very prolix and cumbersome, difficult to understand by the common man. Further, since most of the present day activities of the state relate to socio-economic matters, legislation tends to be quite technical and complex and expert knowledge is required to work out the details to fully implement the policy in view. This can be done better by specialists in the administration rather than by legislators who are mostly generalists and not experts in these matters. There are also occasions when it is difficult to work out beforehand and include in the bill all details which may be needed to implement large and complex schemes of reform and, therefore, the task of evolving the necessary details in this regard has to be left to the administration. At times it may be deemed advisable to hold consultation with the interests affected before all details of the policy are worked out, and the administration may be depended upon to do so before finalising the details.31 Apart from the above mentioned factors, the system of delegated legislation has become popular because it has the advantages of flexibility, elasticity, expedition and opportunity for experimentation. The procedure for making rules is much simpler than that required for enacting statutes. Usually, many present day socio-economic schemes at the legislative stage are experimental in nature and it is difficult to foresee what problems would arise in future in working them out in practice. Many a time, legislation is rushed through the legislature in a hurry in the hope that through experimentation the executive would be able to find the right solutions for problems at hand. This means that details of these schemes need to be constantly adjusted in the light of experience gained in the course of their implementation. If details were to be included in the statute itself, then each time a change becomes necessary in the details, the legislature will have to pass an amending legislation. It would waste much time, and increase pressure on the legislature, if every time need is felt to effect adjustments in a scheme, the matter is referred to the legislature. The technique of delegated legislation avoids such a situation and introduces flexibility in legislative as well as administrative processes for it provides a mechanism for constant adaptation to unknown future conditions, and utilisation of experience, without the formality of the legislature enacting amending legislation from time to time. As Wade and Phillips point out, delegated legislation fulfils the need of modern times "that something less cumbrous and more expeditious than an Act of Parliament shall be available to amplify the main provisions, to meet unforeseen contingencies and to facilitate adjustments that may be called for after the scheme has been put into operation".32 In the words of the CMP: "The practice ... permits of experiment being made and, thus affords an opportunity, otherwise difficult to ensure, of utilising the lessons of experience".33 A modern society is faced many a time with emergency situations when a sudden need is felt for legislative action. There may be threats of aggression, breakdown of law and order, strikes, etc. Such situations cannot be met adequately unless the executive has standby powers. The legislature cannot meet at short notice and

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turn out legislation on the spur of the moment. It is, therefore, a desirable expedient to pre-arm the government with necessary powers to take action at a moment's notice by promulgating the needed rules and regulations according to the needs of the situation. Similarly economic conditions change so fast in modern times that standing powers may be needed to enable the executive to deal quickly with any situation. Because of these factors, delegated legislation, as a technique of modern administration, is now regarded as useful and indispensable.34 There was a time when delegated legislation was criticised as undemocratic and an extension of despotic powers of the bureaucracy. But, in course of time, much of the antipathy towards it has died down. The CMP Report in 1932 gave a verdict in favour of its inevitability in modern administrative process. It stated at one place: "But in truth whether good or bad the development of the practice is inevitable".35 It said at another place: "... the system of delegated legislation is both legitimate and constitutionally desirable for certain purposes, within certain limits, and under certain safeguards."36 In India, the Supreme Court has reiterated the inevitable need of delegated legislation in the modern administrative process in the following words:37 "Now, the increasing complexity of modern administration and the need for flexibility capable of rapid readjustment to meet changing circumstances which cannot always be foreseen, in implementing our socio-economic policy pursuant to the establishment of a welfare state as contemplated by our Constitution, have rendered it convenient and practical, nay, necessary, for the legislatures to have frequent resort to the practice of delegating subsidiary or ancillary powers to delegates of their choice. The parliamentary procedure and discussion in getting through a legislative measure in the legislatures is usually time-consuming. Again such measures cannot provide for all possible contingencies because one cannot visualize various permutations and combinations of human conduct and behaviour. This explains the necessity for delegated or conditional legislation. Due to the challenge of the complex socio-economic problems requiring speedy solution the power of delegation has by now as per necessity become a constituent element of legislative power as a whole."

In another case,38 the Court has observed: "Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d' etre for delegated legislation. That is what makes delegated legislation inevitable and indispensable.

The reasons for giving delegated power to the Government to make rules are many, but the most prominent and dominant reasons are: (i) (ii) (iii)

The area for which powers are given to make delegated legislation may be technically complex, so much so, that it may not be possible and may even be difficult to set out all the permutations in the statute. The Executive may require time to experiment and to find out how the original legislation was operating and thereafter to fill up all other details. It gives an advantage to the Executive, in the sense that a Government with an onerous legislative time-schedule may feel tempted to pass skeleton legislation with the details being provided by the making of rules and regulations.39

3. NEED FOR SAFEGUARDS In spite of its usefulness and indispensability, delegated legislation suffers from several defects as well. To some extent, it does involve abandonment of its function by the legislature and enhancement of powers of the Administration. Power flows from legislature to bureaucracy.40 The legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative function, or, what is fictionally called, a power to fill up the details.41 Many a time, the legislature passes Acts in "skeleton" form containing only the barest of general principles and thus leaves to the executive the task of not only laying down "details" but even that of formulating and determining

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principles and policies. The legislature often uses wide, subjectively worded provisions, giving power to the delegate to make such rules as appear to it to be "necessary" or "expedient" for the purposes of the Act without laying down any standards to guide the discretion of the delegate and the delegate gets a blank cheque to make whatever regulations it likes. According to the CMP, 'skeleton legislation' denotes a power to make delegated legislation which is of extremely wide character and which lays down no limits on the range and scope of the power conferred on the Administration. In Kunj Behari Lal Butail v. State of H.P.,42 the Apex Court held that a delegated power to legislate by making rules "for carrying out the purposes of the Act" [here H.P. Ceiling on Land Holdings Act, 1872 (19 of 1973)] is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself. The executive becomes powerful as it secures powers to affect the life, liberty and property of individuals without the democratic restraints of a debate in the legislature as happens when a statute is enacted through the legislature. In case of legislation through the legislature several democratic safeguards are available. Discussion on a bill in the legislature secures publicity; a lot of discussion takes place on the principles underlying the bill both within and outside the legislative chamber which can gauge the public mood. Legislation thus keeps in harmony with the public sentiment. But this salient and democratic safeguard is not available in the case of delegated legislation which is drafted in government chambers by some anonymous civil servant and mostly promulgated all of a sudden without much publicity or notice. No one may come to know anything about it until it is notified. There may be no public discussion, no press criticism and no public opinion on it. The system thus becomes undemocratic giving rise to the danger that the government may misuse its powers. At any rate, there is widespread suspicion and apprehension that civil and personal liberties may be endangered by an unbridled use of the technique of delegated legislation by the Administration. Therefore, though the technique of delegated legislation has definite advantages, has become generally acceptable, and the exigencies of modern administrative process make its use necessary, yet the dangers inherent in its indiscriminate use cannot be lost sight of. The power of delegated legislation is in no way of less significance than the power of the legislature to legislate, for it affects the rights of the people just as vitally as legislation by a legislature. There is danger involved in enacting measures without public debate or consultation. It therefore becomes necessary to evolve proper safeguards to minimize the feeling of insecurity and distrust generated from an apprehension that the government may misuse its powers of delegated legislation, to ensure that the statutory powers are exercised and statutory functions performed properly and that the government is not able to capriciously injure private rights of person or property. Therefore, the basic problem in the area of delegated legislation is that of devising suitable controls and safeguards so that the advantages of the technique of delegated legislation may be available, while the dangers and risks of abuse inherent therein may be minimized. The focus of the inquiry is thus shifted from the question of desirability of delegated legislation to that of its control and safeguards. The question to-day is not whether there should be delegated legislation, but subject to what safeguards it should be resorted to. The controls over delegated legislation operate at two levels. First, at the point of delegation of power by the legislature. The question here is, how much power should the legislature be permitted to delegate? Should the legislature be completely free to delegate any amount of legislative power on the Administration, or should there be some restraints on the legislature in this respect? Secondly, control mechanism operates at the point of exercise of delegated legislative power by the Administration. The question here is subject to what restraints and safeguards should the delegate function in exercising the delegated legislative powers? In short, what control-mechanism should be put into being so as to minimize the hazards of the technique of delegated legislation? It may be noted that both levels of control are supplementary to each other. The efficacy of the control at the second stage, to a large extent, depends upon the first. If the legislature confers power in very broad terms, its exercise by the delegate cannot be effectively controlled later. If the legislature confers power subject to certain norms and standards, then the exercise of the power can be tested in the light of those norms, and any attempt by the delegate to deviate from those norms may be checked by voiding the delegated legislation produced by the delegate.43 Therefore, the CMP suggested: "The precise limits of the law-making powers, which Parliament intends to confer on a Minister should always be defined in clear language by the statute which confers it."44

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In the following pages, an attempt is made to discuss controls over delegated legislation at both the levels. 4. RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER (a) England There prevails in England the doctrine of sovereignty of Parliament which implies that Parliament has unlimited power to make any law, and that the courts cannot question a parliamentary law on any ground.45 This means that Parliament can delegate any amount of legislative power to an administrative agency. Therefore, no restriction exists on the capacity of Parliament to confer its law-making powers on anybody it pleases and to any extent it pleases. It is not necessary for Parliament to insert in a delegating statute any standard, policy, or norm for guiding the delegate in exercising the power conferred on him. The delegate can be left free to draft delegated legislation in any way he likes and to evolve his own policy or standards in exercising the delegated legislative power. It has often been suggested that Parliament should not confer power in too broad or general terms, that it should define the limits of the power being delegated or define the norms or standards in the enabling statutes subject to which the delegated power may have to be exercised, so that the delegate is not left free to use the power as he likes but may be restrained from misapplying the power. But, as the CMP has stated: "Legislative powers are freely delegated by Parliament without the members of the two Houses fully realising what is being done".46 However, the important point to note is that the remedy for such state of affairs lies in the hands of Parliament itself; it can itself control the delegation of power by it if it so pleases and there is no external agency to compel Parliament to prescribe any norms or standards in a delegating statute subject to which the delegated power may have to be exercised. (b) U.S.A. In the United States, the position is substantially different. The U.S. Congress functions under a written constitution, and the courts have power to interpret the Constitution and declare a congressional statute unconstitutional if it does not conform with their views of the Constitution. The U.S. courts have raised two theoretical objections against delegation of legislative power to the executive. One, on the basis of the doctrine of separation of powers, as discussed earlier,47 it has been argued that legislative and executive powers should not be mixed with each other but should be kept separate. Besides, the U.S. Supreme Court has also invoked the doctrine of delegatus non potest delegare against delegation by Congress. The doctrine means that -a delegate cannot further delegate its powers. The courts thus argue that the Congress, being a delegate of the people, cannot further delegate its law-making functions to any other agency.48 In the U.S.A., the question of delegation of legislative powers thus involves a conflict of values. On the one hand, the theoretical considerations demand that the legislative function be kept aloof and distinct from the executive function. On the other hand, as already noted, the exigencies of modern government make it practically impossible not to have any delegation of legislative power and to concentrate all legislative power in the hands of the Congress which cannot possibly dispose of all legislative work itself in the sense of turning out comprehensive legislation complete in all details on every subject it undertakes to legislate upon. If Congress were not willing to delegate law-making power to some agency then it may be impossible for it to enact the kind and quantity of legislation which the country may need. Thus, pragmatic considerations have prevailed over theoretical objections and, in course of time, the courts have relaxed the rigours of the doctrine of separation of powers and permitted broad delegation of legislative power, subject to the rider that the Congress itself should lay down standards or policies for the guidance of the delegate, that delegation should not be vagrant and uncontrolled, and that Congress should not give a blank cheque to the executive to make any rules it likes for to do so would amount to an abdication of its functions by the Congress. Standards provide a measure to ensure that the delegate acts according to legislative will. If Congress transfers to others "the essential legislative functions with which it is vested", the statute doing so will be held unconstitutional. Therefore, the courts insist that the Congress should itself declare the policy regarding the subject-matter of legislation, and only the power to lay down details to effectuate that policy may be

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delegated to the Administration. The test, in the words of Justice Cardozo, is that "to uphold the delegation there is need to discover in the terms of the Act a standard reasonably clear whereby the discretion must be governed".49 The principle that authority granted by the legislature must be restricted by an adequate standard serves the theory of "separation" by ensuring that fundamental policy decisions must be made by the legislature and not by officials. Prescribing legislative policy is regarded as an "essential legislative function"; and this function must be discharged by the democratically elected legislature itself; it ought not to be left to any politically unresponsive delegate. Thus, Congress can delegate only "non-essential legislative functions". If the statute contains no standard to limit delegation of power, it amounts to giving a blank cheque to make law in the delegated area of authority and, thus, the agency, rather than the Congress, becomes the primary legislator.50 The working of the above rule can be illustrated with reference to two cases. In Panama Refining Co. v. Ryan,51 Congress authorised the President to ban oil in interstate commerce when produced in excess of the quota fixed by a State. The U.S. Supreme Court by majority held the Act unconstitutional, for the Congress had declared no policy, established no standards, and laid down no rule. There was no requirement, no definition of circumstances and conditions in which the transportation was to be allowed or prohibited. The President was given an unlimited authority to determine the policy and to lay down the prohibition or not to lay it down, as he thought fit. Yakes v. U.S.52 is a case on the other side of the line. During World War II, the Office of the Price Administrator was set up to control prices. The relevant Act declared that the prices fixed ought to effectuate the declared policy of the Act to stabilise commodity prices with a view to prevent wartime inflation and its disruptive causes and effects. In addition, the prices fixed had to be fair and equitable. In fixing the prices, the administrator had to give due consideration to the prices prevailing within a designated base-period. The Act gave no direct answers to such basic questions: how much prices should be allowed to go up? Whether prices could be fixed below cost? What margin of profit should be allowed on a product? The delegation, though in effect extremely broad, was held valid for the Congress had stated the legislative objective and had prescribed the method of achieving that objective-maximum price-fixing--and had laid down the standards to guide the administrator's determination. The Court found that the standards prescribed were sufficiently definite and precise to enable every one to ascertain whether or not the administrator, in fixing the designated prices, had conformed to those standards. There are not many examples of the United States Supreme Court declaring Congressional legislation unconstitutional because of excessive delegation of legislative power. Only in three cases of significance has the delegation been held to be excessive so far.53 The exigencies of modern government have persuaded the Supreme Court to relent in its attitude towards delegation. The basic premise still remains that Congress cannot delegate legislative power without prescribing standards,54 but whether this test is satisfied or not by a statute is a matter for the Court to determine, and it has adopted a liberal attitude on this question. In many cases, very broad delegations have been upheld and very vague phrases have been held to be adequate as laying down standards, so much so that one commentator has remarked that "judicial language about standards is artificial".55 But still, the courts do reserve to themselves the power to declare delegation of legislative power unconstitutional if they feel that in a given case the delegation is too broad and indefinite. Till that extreme point is reached, courts permit delegation realising that the legislature to-day has to deal with complex socio-economic problems and it may not be practical for it to meticulously lay down standards for the delegate to follow. Although, by and large, the U.S. Supreme Court has emasculated the doctrine of much of its substance, nevertheless, the academic and judicial views are in favour of maintaining the doctrine that delegation by Congress should be accompanied by discernible standards. It is argued that the doctrine serves two primary functions. First, it ensures that the fundamental policy decisions will be made not by an appointed official but by the body immediately responsible to the people. Formulation of policy is the primary responsibility of the legislature which task is entrusted to it by the electorate. Secondly, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.56 Even though the Supreme Court has upheld broad delegations because of the exigencies of the government in modern times, the Court always reiterates the doctrine of excessive delegation. The doctrine has never been repudiated, though in its practical application the courts adopt a flexible approach. The existence of the doctrine may lead the court to read the delegating provisions narrowly to avoid constitutional problems.57 Also, the delegation of taxing powers to the executive would

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never be upheld as valid. In recent years, there have been calls for revitalization of the excessive delegation doctrine from many quarters, even from those who have no antipathy toward social legislation.58 In spite of the dilution of the theory of non-delegation in the U.S.A., there is a real doctrinal difference between England and the U.S.A. on the question of delegation. Though, in both countries, delegation of legislative power has come to be accepted as a technique of legislative and administrative process, and broad delegations have come to be permitted, yet, while in the U.S.A., in theory, the last word rests with the courts on the question as to how much delegation would be permitted in a given situation, in England it rests with Parliament as there is no constitutional limitation to restrain Parliament from assigning power where it likes, and how much it likes. The doctrine of excessive delegation in the U.S.A. has had some impact on the legislative process in so far as the Congress does seek to lay down some standards in the legislation delegating legislative power. (c) India The question of permissible limits of delegation of legislative power became important in Independent India. Just on the eve of independence, the Federal Court had held in Jatindra Nath v. Province of Bihar59 that there could be no delegation of legislative power in India beyond "conditional legislation"--a concept referred to later.60 But then, after the inauguration of the new Constitution in 1950, the question was raised whether the legislature in Independent India should be restricted to this limited form of delegation, or should it be given a greater freedom to resort to this technique? If the legislature were to be permitted a greater freedom then the next question was, which of the two models--the British or the American which differ from each other rather fundamentally--should be followed in India? The courts could hold either that a legislature in India could delegate as much powers as it liked following the British model, or else that, like the American Congress, it could not give to the delegate unlimited powers, and that it should state the policies subject to which the delegate is to function in making delegated legislation. India and England have both parliamentary form of government in which the executive is also a part of the legislature and can be closely supervised by it. But the two countries differ in one significant respect, viz., while India has a written constitution, England functions mostly under an unwritten constitution. Also, while India, like the U.S.A., has a written constitution and the system of judicial review of legislation, these do not prevail in England. But then, while in the U.S.A., the presidential form of government is based on the principle of separation of powers, the Indian system does not follow that principle in the area of executive-legislative relationship. The parliamentary form of government is based not on separation, but on co-operation, rather unison, of the two organs. Because of these similarities and dissimilarities between the Indian, English and the American constitutional systems, it was open to the Supreme Court in Independent India to follow either the English or the American model on the question of delegation of legislative power. Further, the Constitution of India did not provide any clear guidance on the point as there is nothing in the Constitution either expressly prohibiting or permitting the legislature to delegate its legislative power to the Administration. Therefore, if the Supreme Court had to find any restrictions on the legislature in the matter of delegation, it had to be on the basis of some general theories and principles of constitutional law, but not on the basis of any specific provision in the Constitution. The Supreme Court of India was faced with all these questions in the famous case of In re Delhi Laws Act,61 and the Court opted for the American model. In Delhi Laws Act, 1912, In re,62 while dealing with the reference under Article 143 of the Constitution, the Supreme Court opined that keeping the exigencies of the modern Government in view, Parliament and State Legislatures in India needed to delegate legislative power, if they were to be able to face the multitudinous problems facing the country, as it was neither practicable nor feasible to expect each of the legislative bodies to enact complete and comprehensive legislation on all subjects sought to be legislated upon. It was also observed that since the legislatures in India derive their powers from a written Constitution, they could not be allowed the same freedom as the British Parliament has in the matter of delegation. In this case,63 KANIA, C.J. made following observations: "A fair and close reading and analysis of all these decisions of the Privy Council, the judgments of the Supreme Courts of Canada and Australia without stretching and straining the words and expressions used therein lead me to the conclusion that while a legislature, as a part of its legislative functions, can confer powers to make rules and

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regulations for carrying the enactment into operation and effect, and while a legislature has power to lay down the policy and principles providing the rule of conduct, and while it may further provide that on certain data or facts being found and ascertained by an executive authority, the operation of the Act can be extended to certain areas or may be brought into force on such determination which is described as conditional legislation the power to delegate legislative functions generally is not warranted under the Constitution of India at any stage. In cases of emergency, like war where a large latitude has to be necessarily left in the matter of enforcing regulations to the executive, the scope of the power to make regulations is very wide, but even in those cases the suggestion that there was delegation of 'legislative functions' has been repudiated. Similarly, varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary legislation is equally upheld under all the Constitutions. In my opinion, therefore, the contention urged by the learned Attorney General that legislative power carries with it a general power to delegate legislative functions, so that the legislature may not define its policy at all and may lay down no rule of conduct but that whole thing may be left either to the executive authority or administrative or other body, is unsound and not supported by the authorities on which he relies. I do not think that apart from the sovereign character of the British Parliament which is established as a matter of convenition and whose powers are also therefore absolute and unlimited, in any legislature of any other country such general powers of delegation as claimed by the Attorney General for a legislature, have been recognised or permitted."

Keeping in view the parliamentary position in India in juxtaposition with the British system, His Lordship proceeded to State:64 "Having regard to the position of the British Parliament, the question whether it can validly delegate its legislative functions cannot be raised in a Court of law. Therefore from the fact that the British Parliament has delegated legislative powers it does not follow that the power of delegation is recognised in law as necessarily included in the power of legislation. Although in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. Is it then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making laws is primarily cast on the legislatures? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies, executive or judicial, are not intended to discharge legislative functions? I am unable to read the decisions to which our attention has been drawn as laying down that once a legislature observes the procedure prescribed for passing a bill into an Act, it becomes a valid law, unless it is outside the legislative lists in the Seventh Schedule prescribing its respective powers. I do not read Articles 245 and 246 as covering the question of delegation of legislative powers. In my opinion, on a true construction of Articles 245 and 246 and the lists in the Seventh Schedule, construed in the light of the judicial decisions mentioned above, legislation delegating legislative powers on some other bodies is not a law on any of the subjects or entries mentioned in the legislative lists. It amounts to a law which states that instead of the legislature passing laws on any subject covered by the entries, it confers on the body mentioned in the legislation the power to lay down policy of the law and make a rule of conduct binding on the persons covered by the law."

In the same reference,65 FAZL ALI, J. observed: "There can be no doubt that if the legislature completely abdicates its functions and sets up a parallel legislature transferring all its power to it, that would undoubtedly be a real instance of delegation of its power. In other words, there will be delegation in the strict sense if legislative power with all its attributes is transferred to another authority. But the Privy Council have repeatedly pointed out that when the legislature retains its dominant power intact and can whenever it pleases destroy the agency it has created and set up another or take the matter directly into its own hands, it has not parted with its own legislative power. They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the legislature by which the subordinate authority was entrusted with the power to do the act. In some of the cases to which reference has been made, the Privy Council have referred to the nature and principles of legislation and pointed out that conditional legislation simply amounts to entrusting a limited discretionary authority to others, and that to seek the aid of subordinate agencies in carrying out the object of the legislation is ancillary to legislation and properly lies within the scope of the powers which every legislature must possess to function effectively."

As to delegation of legislative powers, His Lordship reached the following conclusions66: "(1) (2)

The legislature must normally discharge its primary legislative function itself and not through others. Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words it can do everything which is ancillary to

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(3) (4)

and necessary for the full and effective exercise of its power of legislation. It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency, acts as a subordinate authority and does not become a parallel legislature. The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American Courts to check undue and excessive delegation but the Courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to 'abdication and self-effacement'."

In the case on hand, the M.P. Reorganisation Act of 2000 as enacted by Parliament was full and complete when it left the legislative chamber. There was, therefore, no question of delegation of legislative power by the legislature in favour of the executive. What was left to the executive was merely to decide whether to continue the Administrative Tribunal or to abolish it. The State Government, after considering the facts and circumstances, decided not to continue the Tribunal which was within the power of the State Government and, hence, no objection can be raised against exercise of such power. The Supreme Court was of the opinion that there is no excessive delegation by Parliament to the State Government which would be hit either by the provisions of the Constitution or the law laid down in Delhi Laws Act, 1912, In re,67 or other decisions of this Court.68 There were a few (Delhi being one of them) Part C States, under the direct administration of the Central Government, without having a legislature of their own. Parliament had to legislate for these States. As it was very difficult for Parliament to find the necessary time to do so in view of its other manifold engagements, Parliament passed a law, the Part C States (Laws) Act, 1950. It authorised the Central Government to extend to any Part C State, with such restrictions and modifications as it thought fit, any enactment in force in a Part A State, and while doing so it could repeal or amend any corresponding law (other than a Central law) which might be operative at the time in the Part C State concerned. Undoubtedly, it was a very sweeping kind of delegation. The Government could extend to a Part C State any law made by a State Legislature (and not by Parliament), at any time (not only laws prevailing in 1950 but even those made subsequently), and even modify the law before extension. And if there was already a law in force in the Part C State on the point, it could either be repealed or modified when the law was being extended. The Supreme Court was called upon to adjudge the validity of this provision. Seven Judges participated in the decision and seven opinions were delivered exhibiting a cleavage of judicial opinions on the question of limits to which the legislature in India should be permitted to delegate legislative power. Yet, on two points there was a unity of outlook amongst all these opinions. First, keeping the exigencies of the modern government in view, Parliament and State Legislatures in India need to delegate the legislative power if they are to be able to face the multitudinous problems facing the country, for it is neither practicable nor feasible to expect that each legislative body could turn out a complete and comprehensive legislation on all subjects sought to be legislated upon. Second, since the legislature is the creature of, and derives its powers from, the written Constitution which creates it, it could not be allowed the same freedom as the British Parliament in the matter of delegation, and that some limits should be set on its capacity to delegate. The Constitution entrusts the legislative power to the cumulative judgment of the legislature, and, therefore, it just cannot delegate the power in its entirety to someone else without exercising its judgment at all. Thus, the Court rejected the extreme contention of the Government that an unlimited right of delegation is inherent in the legislative power itself. But the Judges differed on the question as to what were to be the permissible limits within which an Indian legislature could delegate its legislative power? One view propounded was that the Indian legislature could delegate its power to any extent subject to the limit that it did not efface itself or abdicate its powers, which meant that the legislature should never give up its control over the delegate; that it must not destroy its own legislative power; it must retain in its hands the ultimate control over the authority so as to be able to withdraw the delegation whenever the delegate did something wrong or foolish. The other view which approximated to the American approach, and which in theory at least is somewhat more restrictive than the first, was that the legislature should not delegate its essential legislative function which comprised the formulation of policy and enacting it into a binding rule of conduct. The Constitution having

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chosen to vest legislative power in the elected representatives of the people, they must at least discharge the essential legislative function themselves and not leave the entire legislative power to the executive. That meant that the legislature should lay down standards or policy in the delegating Act and the delegate may be left with the power to execute the policy. The majority was in favour of adopting the second view. By a majority, the specific provision in question was held valid subject to two riders: (1) that part of it was bad which authorised the government to repeal a law already in force in a Part C State; (2) the power to effect modifications in a state law in its application to a Part C State envisaged only such modifications as did not change the underlying policy of the law sought to be extended. The Delhi Laws Act case achieved two ends: (1) it legitimized delegation of legislative power by the legislature to administrative organs; and (2) it imposed an outer limit on delegation by the legislature. This case may be regarded as a notable example of judicial creativity. First, the Court had to get out of the limiting and restrictive doctrine of conditional legislation. Then, the Court had to make a choice out of the two alternatives before it on the question of delegation of legislative power. Nevertheless, the Court selected the alternative seeking to impose some restraints on the legislatures in the matter of delegation. The Court did not want to concede a blank cheque to a legislature to delegate as much legislative power as it would like to the executive. This choice was made by the Court consciously with a view to promote democratic values in the country. But the theoretical justification for this judicial approach could not be the same as in the U.S.A. The Supreme Court Judges repeatedly emphasized that in India the theory of separation of powers does not operate in the area of legislative-executive relationship. Also, the theory accepted in the U.S.A. that the legislature being a delegate of the people cannot further delegate because of the maxim delegatus non potest delegare was rejected by the Judges for India as being "not a sound political theory." The majority therefore developed an alternative theory: a legislature in India functions under a written constitution and so it cannot enjoy the same freedom as the British Parliament in the matter of delegation because of Britain's unwritten constitution. The result of this approach is that while an Indian legislature can delegate legislative power, the final say in this respect rests with the courts. If the court feels that unduly large amount of legislative power is being conferred on an administrative authority in any specific instance without adequate checks, it can cry a halt to the process of delegation. In course of time, through a series of decisions, the Supreme Court ratified the proposition that a legislature can delegate its legislative power subject to its laying down the policy, principle or standard in the legislation subject to which the legislative power can be exercised by the delegate. Otherwise, the law will be bad on account of excessive delegation. In a number of cases, the courts have applied, confirmed and reiterated this doctrine of excessive delegation. Some of these cases are noted below under suitable headings. While the question seemed to be settled in the Delhi Laws Act, and a few subsequent cases, it was again opened in Gwalior Rayon.69 The point of debate in the case was whether the doctrine of excessive delegation be maintained, modified or given up. Mathew, J. propounded the theory that so long as Parliament retains the power to repeal the delegating provision, it retains ultimate control over the delegate and so it does not abdicate the legislative function. Therefore, there should be no objection to delegation howsoever broad its extent. The key to his thinking is to be found in his following observation in his opinion in the case: "The hunt by court for legislative policy or guidance in the crevices of a statute or the nook and cranny of its preamble is not an edifying spectacle."70 It is thus clear that Mathew, J., was pleading for the dilution of the doctrine of excessive delegation as he felt dissatisfied at the flexible way the doctrine had been applied hitherto by the Supreme Court, for, in order to uphold legislation against the argument of excessive delegation the Court had gone to the farthest limit in some cases to find the legislative policy underlying the statute in question. The whole judicial exercise thus smacked of artificiality. But the question is whether this should lead to applying the doctrine in a more meaningful manner or abolishing the doctrine itself as Mathew, J. was pleading. However, the majority on the Bench did not agree with Mathew J.'s approach. The majority reiterated the proposition that when a legislature confers power on an authority to make subordinate legislation, it must lay down policy, principle or standard for the guidance of the authority concerned. Justifying the principle, Khanna, J., observed on behalf of the majority. "At the same time it has to be borne in mind that our constitution-makers have entrusted the power of legislation to the representatives of the people, so that the said power may be exercised not only in the name of the people but also by the people speaking through their representatives. The rule against excessive delegation of the legislative authority

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flows from and is a necessary postulate of the sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of legislative policy the view of the individual officers or other authorities, however competent they may be for that of the popular will as expressed by the representatives of the people."71 Mathew, J.'s view would have meant a complete emasculation of the doctrine of excessive delegation; it would be tantamount to saying that a legislature can delegate as much legislative power as it desires without any semblance of restriction. Rejecting this view, the majority pointed out that acceptance of Mathew, J.'s view would lead to startling results. The dangers inherent in his approach were pinpointed by the majority thus: suppose the crime situation in the country deteriorates. Can Parliament pass a law saying that henceforth criminal law enforced in the country would be such as is framed by a designated officer? Although Parliament still has the power to repeal the provision, yet can such a blanket delegation of legislative power be accepted? The weakness in Mathew, J.'s approach is his lack of appreciation that after Parliament has delegated power, it cannot, in a practical sense, control it through its power of repealing the law. Because of the party system, to-day's legislature passes no law without the initiative and consent of the executive and it is highly improbable that the executive would ever ask Parliament to repeal a provision delegating legislative power to itself because it has misused the power. It is illusory to believe that a legislature will ever repeal, without executive consent, a law delegating legislative power on the ground that the delegated power has been improperly used by the delegate. This will amount to a vote of censure in the government of the day and eventually lead to its fall.72 For all practical purposes, Mathew, J.'s thesis would have resulted in uncontrolled delegation. The majority view expressed in Gwalior Rayon was reiterated by a five Judge Bench of the Supreme Court in KS.E. Board v. Indian Aluminium.73 The Court has reiterated the principle of excessive delegation in Kunjabmu.74 Explaining the principle of excessive delegation the Court has pointed out that "the power to legislate carries with it the power to delegate," but "excessive delegation may amount to abdication" and "delegation unlimited may invite despotism uninhibited". Thus, the following theory has been evolved:75 "... the legislature cannot delegate its essential legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out policy."

In State of Mahrashtra v. Indian Medical Association,76 the Supreme Court held that in granting approval or permission to a private management to establish a medical college as contemplated under Section 64 of the Maharashtra University of Health Sciences Act, 1998 and in issuing Essentiality Certificate under Para 3 of the Medical Colleges Regulation, 1993, the State Government acts as a sovereign and discharges its constitutional obligation. The Government can neither delegate this sovereign/essential function to any other authority nor can it create a statutory authority under a State Act. As a result of these and other pronouncements, the doctrine of excessive delegation is well established in India. Thus, while delegating legislative power, the legislature must lay down legislative policy, standards or guidelines for the delegate to follow.77 It may be interesting to note that both in America and India, the doctrine of excessive delegation is purely a judge-made doctrine emanating from some of the basic postulates on which a written, democratic constitution is based. The American and Indian doctrines though practically congruent are yet based on different postulates. The American doctrine is based on the theory of separation of powers between the legislature and the executive, while the Indian doctrine is based on the theory of constitutional trust in the legislature. As an example of invalidation of a statutory provision delegating legislative power on the ground of excessive delegation, reference may be made to Harakchand.78 S. 5(2)(b) of the Gold Control Act, 1968, empowered the Gold Administrator, so far as it appeared to him to be necessary or expedient for carrying out the purpose of the Act, to regulate the manufacture, distribution, use, disposal, consumption, etc. of gold. The Supreme Court characterised the power conferred on the Administrator by the provision in question as 'legislative' in character and further declared it invalid because it was very wide and suffered from the vice of 'excessive delegation'. The Court pointed out that under S. 114 of the same Act, power of delegated

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legislation was conferred on the Central Government as well, but while the rules made by the Government were required to be laid before each House of Parliament, there was no such obligation imposed in respect of the rules made by the Administrator under S. 5(2)(b). The power of the Administrator was not subjected to any procedural safeguard while that of the Government was, and thus the power of the Administrator was even broader than that conferred on the Government. The delegation of essential legislative power of the principal to the delegatee would amount to abdication of its legislative power and, if it is bereft of any guidelines, then it is unsustainable in the eye of the law.79 In N. Vendkateswara Rao v. S.T.A.,80 the Supreme Court held that it is true that the clause (1) of Section 58 of the Motor Vehicles Act, 1988 indicates and gives an impression that the Central Government has abdicated its discretion of rating the gross vehicle weight and axle weight in favour of the manufacturer but the explanatory note added by the Govt. clarifies the position that the weight testing agencies should have to act in conformity with the provisions of the Act and the Rules and should certify accordingly. On the other hand, coming to the practical application of the doctrine to concrete situations, in innumerable cases broad delegation of legislative power has been upheld. On the whole, the courts adopt a tolerant, or rather an ambivalent, attitude in this matter. The courts do permit a good deal of latitude to the legislature in the matter of delegation of legislative power, hardly ever demanding that the legislature lays down policies or standards in the legislation in concrete terms to guide the delegate in making delegated legislation. While the Supreme Court invariably reiterates the doctrine that delegation of legislative power is valid only if the delegating statute specifies the policies subject to which the delegate is to exercise its rule-making powers, in actually applying the doctrine to any specific legislation, the Court has diluted its efficacy a great deal and exhibited anxiety to uphold the legislation against a challenge on the ground of excessive delegation. The Supreme Court usually leans towards the validity of the delegating provision. To uphold broad delegation against the charge of excessive delegation, the Supreme Court adopts several strategies. One, and this is the most usual one, is for the Court to find principles and policies within or without the statute concerned subject to which the delegation is made. Thus, the Court has upheld very broad and general delegation treating vague statements in the law as amounting to an adequate policy statement. The Supreme Court has sought to read policy in the preamble to the Act in question, or in the delegating provision itself, or in any other provision of the concerned statute, or in the scheme or subject-matter of the concerned statute; at times even in the previous statute which the statute in question may have repealed or replaced,81 or even in the rules which the Act may have adopted from the past.82 At times, the Court has itself supplied or rationalized the policy when the same may not be discernible from the face of the statute, and to do so has gone into the legislative history of the legislation, affidavits filed by the officers in support of the impugned Act, or any other supporting material. At times, the Court has met the demands for more definite policy statement by the argument that the subject-matter of the legislation is such that no more guidance could possibly be given to the delegate. At times, the Court treats the purpose for which legislative power is delegated as the policies underlying the Act. It was this kind of judicial attempt to which Mathew, J., took exception as noted above.83 Two, at times, the Court upholds broad delegation of legislative power if the statute in question contains procedure for the delegate to follow in making delegated legislation. The argument is that with procedural safeguards woven in the statute, uncontrolled legislative power has not been delegated and this makes delegation valid. Three, the Court at times upholds broad delegation by resorting to the argument that in socio-economic and welfare legislation seeking to promote the directive principles of state policy a generous degree of latitude ought to be permissible to the legislature in the matter of delegation.84 Recently, the Supreme Court has adopted another strategy for the purpose of upholding broad delegation. S. 58-A of the Companies Act, 1956, empowers the Central Government to prescribe the limits up to which, the manner in which, and the conditions subject to which, deposits may be invited or accepted by the non-banking companies. Upholding the validity of S. 58-A in Delhi Cloth and General Mills Co. Ltd. v. Union of India,85 against the challenge of excessive delegation, the Supreme Court found sufficient guidance in the law for the exercise of the rule-making power. The Court observed: "The policy is definite, guidelines are available from the history of legislation and Companies Act taken as a whole and one cannot shut one's eye to articulated sickness in private sector undertakings all around so that this feeble measure extending only a semblance of protection can be struck down as arbitrary or as violating the permissible limits of delegated legislation."

The above statement exhibits the strategy adopted by the Court to uphold broad delegation of legislative

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power. The policy to guide the delegate is found not so much in the Act itself, but in the history of the legislation, in the Companies Act, and other factors external to the Act. Further, having said this, the Court then mentioned one more factor to uphold S. 58-A, viz., that the Act contains a provision for laying of rules before both Houses of Parliament and that the Houses have power to suggest modifications in the proposed rules. The Court deemed this control of Parliament as "sufficient to check any transgression of permissible limits of delegated legislation by the delegate." On the basis of the laying requirement, the Court held that Parliament has not abdicated its power.86 The Court has again resorted to the 'laying requirement' to ward off challenge to S. 80-J of the Income Tax Act on the ground of excessive delegation in Lohia Machines Ltd. v. Union of India.87 This kind of a ruling raises some serious questions for a student of Administrative Law. As is discussed later,88 in practice, the laying requirement (other than that of the affirmative type) does not lead to any effective Parliamentary supervision over delegated legislation. Further, now-a-days, it has become a standard legislative practice in India to include a standard laying formula in each and every statute enacted by Parliament. Therefore, if the 'laying' provision comes to be regarded as an argument to uphold broad delegation, then the doctrine of excessive delegation will be completely annihilated, and all restraints on Parliament in the matter of delegation will become in-efficacious. It also needs to be noted that in the context of the doctrine of ultra vires, the Supreme Court has already declared that laying before Parliament does not affect the jurisdiction of the courts to pronounce upon the validity of the rules.89 It is therefore suggested that laying ought to be kept out of the reckoning by the Court while assessing whether a provision suffers from excessive delegation or not, otherwise it would amount to giving up the substance for a shadow. However, in Quarry Owners' Assn. V. State of Bihar,90 the sub-section (1) and (3) of Section 28 of the Mines and Minerals (Regulation and Development) Act, 1957, providing for laying of every rule and notification issued by the Central Govt. and State Govts. respectively before each of Parliament and State Legislature were considered by the Supreme Court. The sub-section (3) provides for mere laying down of the rules or notifications issued by the State Govt. The Supreme Court observed that when any statute requires mere laying of any notification or rule before the legislature its executive, viz., the State Govt. comes under the scrutiny of the legislature concerned. Where any document, rule or notification requires placement before any House or when placed, the said House inherently gets the jurisdiction over the same, each member of the House, subject to its procedure gets the right to discuss the same, they may put questions to the Ministry concerned. Irrespective of the fact that such rules or notifications may not be under the purview of its modification, such Members may seek explanation from such Ministry of their inaction, arbitrariness, transgressing limits of their statutory orbit on any such other matter. Short of modification power, it has right even to condemn the Ministry. This positive control of the House over the executive makes even mere laying to play a very vital and forceful role which keeps check over the State Govt. concerned. The Court found that the notification required to be placed before each House if the Legislature was not so placed and directed the same to be placed at the earliest. However, the provisions being directory, the notification was upheld. However, in CBI v. Ravi Shankar Srivastava,91 it was held that the letter, rescinding the impugned notification, was allegedly simply an interdepartmental communication and it was not established that the person writing the letter could take the decision to rescind the said notification and even authority to write the letter was not indicated, thus not meeting the requirements of Art. 166 of the Constitution and hence it was not even conceptually a notification. As the following discussion will show, in the matter of applying the doctrine of excessive delegation, the courts show a good deal of deference to legislative will and judgment. In effect, as things stand to-day, the legislature in India does not seem to be much circumscribed, by the judicial dicta in the matter of delegation as a careful drafting of the legislation, with some broad and general statements thrown in, may pass muster in the judicial view as policy statements to uphold legislation. In effect, at present, the doctrine of excessive delegation has more of a symbolic value or is of a formalistic nature. During the last forty years it is only rarely that legislation has been invalidated or the ground of excessive delegation. As the Supreme Court has stated in Ramesh Birch recently: "faint glimmerings of policy" are sufficient to uphold a law against the challenge of excessive delegation.92 There may be some reasons for this permissive and flexible judicial approach. The courts realise that if they apply the doctrine of excessive delegation in a rigid, theoretical or doctrinaire manner, rather than in a pragmatic manner, then many statutes may have to be declared to be invalid. The courts also appreciate that in the modern complex world, administrative process cannot do without broad delegation of legislative power and that it may not always be possible for the legislature to formulate minute and specific standards for the executive to follow. At times, the factors may be so variable that it may be difficult to mention them in the legislation. The courts also do not wish to invalidate

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socio-economic legislation lest they should be dubbed as reactionary and conservative stalling social and economic progress. But, in spite of all these considerations, there does seem to be some scope for improvement in this respect. Every legislation is based or some policy; it is to implement some policy goals that a law is enacted. There seems to be no reason therefore as to why the policy goals cannot be stated in the preamble to the statute for the guidance not only of the administrators but even of the general public. As it is, an unfortunate result of the permissive judicial attitude has been that the legislature never cares to formulate principles and policies underlying a legislation with any specificity even when it may be possible to do so. The necessity of the legislature's delegating its powers in favour of the executive is a part of legislative function. It is constituent element of the legislative power as a whole under Article 245 of the Constitution. Such delegation of power, however, cannot be wide, uncanalised or unguided. The legislature while delegating such power is required to lay down the criteria or standard so as to enable the delegate to act within the framework of the statute. The principle on which the power of the legislature is to be exercised is required to be disclosed. It is also trite that essential legislative functions cannot be delegated. The procedural powers are, therefore, normally left to be exercised by the executive by reason of a delegated legislation.93 The power of delegation is a constituent element of the legislative power as a whole under Article 245 of the Constitution and other relative articles and when the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by the Acts as part of the Administrative Law. The legislature has to lay down the legislative policy and principle to afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. The essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. These principles also apply to taxing statues. The effect of these principles is that the delegate which has been authorised to make subsidiary rules and regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act.94 Under the Constitution, the power to legislate is with the legislature. The said power of making laws, therefore, cannot be delegated by the legislature to the executive. In other words, a legislature can neither create a parallel legislature nor destroy its legislative power. The essential legislative function must be retained by the legislature itself. Such function consists of the determination of legislative policy and its formulation as a binding rule of conduct. But it is also equally well-settled that once the essential legislative function is performed by the legislature and the policy has been laid down, it is always open to the legislature to delegate to the executive authority ancillary and subordinate powers necessary for carrying out the policy and purposes of the Act as may be necessary to make the legislation complete, effective and useful.95 The delegatee of a legislative power can exercise the power of exemption in a fiscal statute.96 The Supreme Court held that the power conferred by Section 3 of the Bharat Petroleum Corporation Ltd. (Determination of Conditions of Service of Employees) Act, 1988 on the Central Government to frame the scheme [in this case the Bharat Petroleum Corporation Ltd. (Determination of Conditions of Service of Post-Nationalisation Refinery Employees Scheme, 1989] could be exercised for the purpose of making the service conditions of the Corporation's employees comparable with those of other public sector companies. This is not unguided power. The guidelines are contained within Section 3 itself.97 Under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, the Central Govt. delegated the power to fix the rate of royalty/dead rent of the minor minerals to the State Government and there beingno statutory maximum limit of such rates, it was alleged that there was absence of purposeful guidance to the delgatee State Govt., hence the delegation of power was excessive or unbridled. The Supreme Court held that the State Govt. is the highest executive in the State and is responsible to the State Legislature and, through it, to the people which factor itself is an additional factor to keep the State Govt. under check not to act arbitrarily or unreasonably. When a policy is clearly laid down in a statute with reference to minor minerals, with the main object under the Act, being for its conservation and development, coupled with various other provisions of the Act guiding it, checking it and controlling it, then such delegation cannot be said to be unbridled.98 The Apex Court observed that in order to adjudicate, whether any delegation of power is unbridled or excessive, the historical background of similar provisions which preceded

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the impugned provision should be kept in mind, as it is also a relevant consideration.1 Section 9(a) of U.P. Secondary Education Services Commission and Selection Board Act, 1982 which enumerates the powers and duties of the Secondary Education Services Commission which included the preparation of guidelines on matters relating to the method of recruitment and promotion of teachers. The Section 9(a) was impugned on the ground of delegation of essential legislative function. The Supreme Court held that the essence of the essential legislative function lies in the legislature formulating a policy in respect of a matter within its field of legislation and translating it into words of an enactment to clothe it with binding authority. The legislative policy as could be gathered from the aforementioned provisions, appears to constitute a Commission, a statutory body consisting of experts and leave the question as to how it should proceed with the method of recruitment and promotion of teachers to the posts of Principals/Headmasters to that Commission. A plain reading of the clause (a) of Section 9 shows that the legislature has delegated the power of preparation of guidelines on matters relating to the method of recruitment of the Commission which is in the sphere of effectuation of the legislative policy rather than in the realm of laying down a legislative policy and the delgatee Commission is an expert and most competent body for the said purpose. Hence, on facts there is no delegation of essential legislature function.2 In Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board,3 it was contended that the State Electricity Board could impose only such conditions as might be found to be in an agreement between other ordinary licensees and consumers. The contention was that the Board could neither define "malpractices" nor prescribe an adjudicatory machinery for assessing and levying penal damages as such matters were essential legislative functions which could not be delegated to the Board. The Supreme Court observed that Section 49 of the Electricity (Supply) Act, 1948 empowered the Board to supply electricity on "such terms and conditions as it thinks fit." It may also frame uniform tariffs. The terms and conditions of supply are statutory in character. They can be invalidated only if they are in conflict with any provision of the Act or the Constitution. Clause 39 of the Terms and Conditions of Supply of electricity to consumers (notified by APSEB vide B PMS No. 690 dated 17.9.1975 does not violate any provision in the Electricity (Supply) Act, 1948. It is the statutory duty of the Board to arrange for the supply of electricity throughout the State. Unauthorised user, pilferage or malpractices by the consumers have got to be prevented. For ascertaining the loss and fixing the compensation, a uniform procedure has to be framed and machinery constituted and clause 39 is only doing that. Hence, the Apex Court found itself unable to accept the contentions. And in view of the provisions of the Section 4 of the U.P. Secondary Education Services Commission and Selection Board Act, 1982, the Supreme Court held that inasmuch as the UP. Secondary Education Services Commission, was an expert statutory body entrusted with the duty of selection of Teachers, Principal/Headmasters, it would be the most competent body to lay down guidelines on the matters relating to the method of recruitment and promotion of the teachers to the posts of Principals/Headmasters. Indeed laying down of guidelines by the Commission in such matters when it is so authorised by an Act of legislature or by statutory rules is a well-accepted principle and no exception can be taken to it.4 It was urged before the Apex Court that the conferment of power to issue a declaration under Section 3 of the Central Armed Forces (Special Provisions) Act, 1958 (as amended) on the Governor of the State is invalid since it amounts to delegation of power of Central Government and that for the purpose of issuing a declaration of disturbed area, the application of mind must be that of the Central Government with respect to the circumstances in which such deployment of armed forces is to take place and that conferment of the power to make a declaration of disturbed area on the Governor of the State cannot be held to be valid. The Apex Court observed that there is a basic infirmity in this contention. There is a distinction between delegation of power by a statutory authority and statutory conferment of power on a particular authority/authorities by the legislature. Under Section 3 of the Central Act there is no delegation of power of the Central Government to the Governor of the State. What has been done is that the power to issue a declaration has been conferred by Parliament on three authorities, namely, (1) the Governor of the State; (2) the Administrator of the Union Territory; and (3) the Central Government. In view of the information available at the local level the Governor of the State or the Administrator of the Union Territory is in a position to assess the situation and form an opinion about the need for invoking the provisions of the Central Act for use of the armed forces of the Union in aid of the civil power for the purpose of dealing with the situation that has arisen in the State or the Union Territory concerned. Moreover, the issuance of a declaration, by itself, would not oblige the Central Government to deploy the armed forces of the Union. After such a declaration has been issued by the Governor/Administrator, the Central Government would have to take a decision regarding deployment of the armed forces of the Union in the areas that has been declared as a "disturbed area". The

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conferment of power on the Governor of the State to make the declaration under Section 3 cannot, therefore, be regarded as delegation of power of the Central Government.5 Similarly, where under the Constitution of India, the power to administer the Union Territories vests in the President of India and he can exercise this power directly or through an Administrator appointed by him, the contention that the notifications issued by the Administrator (Chief Commissioner) of the Union Territory of Chandigarh were bad because it was a further delegation of power by the Central Govt. to the Administrator cannot be accepted. Actually, there was no delegation of power.6 Section 19 of the A.P. Co-operative Societies Act, 7 of 1964 provides for and governs the admission of members to the Toddy Tappers' Co-operative Society. The power under Section 19 is delegated to the Superintendent of Excise. Class (aa) of Section 21 of the Act provides that a person, who is not eligible for the membership of the Society under Section 19, is disqualified for being admitted as, and for being, a member of the Society. The Supreme Court held that under these circumstances, once the power of non-admission of a member of the Society under Section 19 has been engrafted in Section 21 and delegated for removal from membership as envisaged in Rule 20 of the A.P. Cooperative Society Rules, 1964, the Superintendent of Excise has power under Rule 20 which empowers him to consider the ineligibility for being removed from membership under Section 19, the power under which is delegated to the Superintendent. The inescapable consequence is that the subsequent disqualification for being a member also becomes available to him and it is not necessary that there should be an express separate conferment of power of the Registrar under Section 21 on the Superintendent of Excise.7 Section 86 of the Motor Vehicles Act, 1939 provideds for cancellation and suspension of the transport permits. Its sub-section (4) permits exercise of the power of cancellation and suspension of permits by the transport authority or any authority or person to whom such powers are duly delegated. The provision to enable delegation of these powers is obviously to make it workable in case the jurisdiction of the transport authority is so large that the need is of several persons to exercise this authority.8 Section 49 of the Electricity (Supply) Act, 1948 does not require the A.P. State Electricity Board to enter into a contract with the individual consumer. The Board, in performance of a statutory duty, supplies energy on certain specific terms and conditions framed in exercise of a statutory power. Probably in order to avoid any possible plea by the consumer that he had no knowledge of the Terms and Conditions of Supply, agreements in writing were entered into with each consumer. That will not make the statutory terms and conditions purely contractual.9 The cover page of the Indian Railways Conference Association Rules states that only the Rules in its Part 1 (Vol. 2) were issued under the authority of the Central Govt. and not the Rules in Part 1 (Vol. 1). The Apex Court held that that could not lead to a contrary inference that the Rules in Part 1 (Vol. 1) are not statutory as they have been issued by the Railway Board in exercise of the power under Section 29 or 54 of the Railways Act, 1890 delegated to it by the Central Govt.10 Regulations framed under Section 33 of the Medical Council Act, 1956 with the previous sanction of the Central Govt. are statutory and, if a regulation falls within the purposes mentioned under Section 33 of the Act, it will have a mandatory force.11 A statutory notification cannot be notified by issue of circular.12 A valid regulation once framed would be a part of the statute;13 so would be a rule validly framed.14 The Reserve Bank of India Staff Regulations, 1948 were framed with the sanction of the Central Govt. and are framed in exercise of the powers conferred by Section 58(2)(j) of the Reserve Bank of India Act, 1934. The Act empowers the Central Board to frame regulations with the sanction of the Central Govt. which is mandatory. The recommendations by the Board to amend the regulations were turned down by the Central Govt. Unless they are approved by the Central Govt., they have no binding force.15 Where the State Govt. has been entrusted with the rule-making power under an Act, the Central Govt. has no say in that matter and it cannot excise such power by resorting to its power "to remove difficulties". Rule-making power is a separate power which has noting to do with the power to remove difficulty. By reason of the power to remove difficulty or doubt, the Central Govt. has not been conferred with any legislative power. Hence, in the instant case, the Model Rules framed by the Central Govt. in purported exercise of power under Section 70 of the Juvenile Justice (Care and Protection of Children) Act, 2000, having no legal force, cannot be given effect to.16 The regulations framed by the Medical Council of India with respect to the qualifications for appointment as teachers in Medical Colleges are only directory in nature. It is really within the domain of the State Government to prescribe qualifications for appointment to various posts in State Services. Though recruitment to the State Medical Services falls within the purview of the State Government, they are expected to comply with the regulations made by the Medical Council in order to maintain high standard of medical education. Section 19-A of the Indian Medical Council Act, 1956 enables the Council to prescribe by making regulations minimum standards of medical education required for granting recognised medical qualifications by Universities or Medical Institutions in

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India and that would include prescribed minimum qualifications for appointment as teachers of medical education. As State Governments are thus expected to comply with the recommendations made by the Medical Council from time to time and if the State Governments comply with such recommendations irrespective of whether they are approved by the Central Government or not, it cannot be said that in doing so they have acted arbitrarily or illegally.17 It was held that a pre-amended rule as to the Railway Establishment was to be operative in a case where the selection process for the vacancies was completed before 1990 amendment in the Railway Establishment Manual.18 In State of Bihar v. Bal Mukund Sah,19 the Apex Court held that no rule or law made by the delgatee can supersede or override the powers exercised or the law made by the delegator of the power, the sovereign legislature. The Rules framed under one Act cannot have overriding effect on the provisions of another Act.20 The rules framed by the Secretary of the M.P. State in 1925 under Section 58(1) of the M.P. Land Revenue Code 20 of 1959 provided that in case the Central Govt. required land belonging to the State Govt., the Central Govt. would be liable to pay 25 times of the land revenue once as a one-time payment which was paid by the Central Govt. in respect of land transferred to it. The State Govt. claimed payment of further revenue from the successor-in-interest of the Central Govt. The Apex Court held that it could not claim beyond the rules.21 In Rajasthan Agricultural University v. Ram Krishna Vyas,22 it was held that the Agricultural University, being a body corporate having perpetual succession, had a separate legal entity and as such service rules framed by the Govt. would not be applicable to it unless those rules were specifically adopted by the University in accordance with the provisions of the Act by which the University was constituted. The Govt. of India in exercise of its power under Section 16(1)(g) of the General Insurance Business (Nationalisation) Act, 1972 framed a Scheme called the "General Insurance (Rationalisation and Revision of Pay Scales and Other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974". It was contended that, though it was meant for the benefit of workmen, they were not consulted. The Supreme Court held that in matters of legislative nature consultation is not required unless the law requires the same to be done.23 The Sales Tax Commissioner, by a notification, delegated his power under Section 23(4)(a) of the Orissa Sales Tax Act, 1947 r.w. Rule 80 of the Orissa Sales Tax Rules, 1947 to revise assessment orders passed by the Sales Tax Officers suo motu to the Assistant Commissioner in exercise of which the Asstt. Commissioner issued a show-cause notice to a party which he subsequently dropped. The Sales Tax Commissioner in purported exercise of the revisional power under the same provisions issued that party a show-cause notice in respect of the same cause. The Apex Court held that it is true that the Sale Tax Commissioner is not denuded of the statutory power of revision after delegation, but that, in view of the said notification, only means that he can resume that power or cancel the delegation of revisional power. That, by no stretch of imagination, can be construed to mean that once the orders of the Sales Tax Officer have been examined under the revisional power by the Asstt. Commissioner (the delgatee), the same orders can again be subjected to revisioal jurisdiction by the Sales Tax Commissioner. The power of the Commissioner (the delegator) has been exhausted by the Asstt. Commissioner (the delegatee) and the Commissioner cannot, in law, exercise the delegated power over again.24 It was held that the delegation of the enabling administrative power by the State Govt. to the State Public Service Commission to extend the joining period of the selected candidates was neither in derogation of the powers of the State Govt. and, in the absence of statutory rules to this effect, nor can be considered as self-destructive of its powers. Hence, in case the Govt. itself extended the joining period of any candidate on the basis of reasonableness of the request, the extension, in absence of any order by the Commission, cannot be said to be without authority in law.25 The regulation empowered the Chairman and Managing Director to exercise the power of review. As a result of a departmental injury penalty was imposed on an employee. The Executive Director who was for the time being also holding the charge of the offices of the Chairman and Managing Director enhanced the penalty in exercise of the power of review. It was held that exercise of such power by the Executive Director did not amount to exercise of a delegated power.26 It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is

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clear intention on the part of the Government to enforce those rules in the near future.27 However, in Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana,28 it was held that draft rules can be invoked only when no rule is operative in the field, but a scheme which was never in existence and was only a draft scheme should not be and could not have been directed by the Court to be implemented for the benefit of a single individual.29 The rules, validly framed, should be treated as a part of the Act.30 The Code of Conduct for Ministers, issued in GOMS No. 1350, dated 26-7-1968 by the Govt of T.N. in the name of the Governor, not having a statutory force and not enforceable in a Court of law, nor having any sanction or procedure for dealing with a contravention thereof by the Chief Minister, cannot be construed to impose a legal prohibition against the purchase of property of the Government so as to give rise to a criminal offence under Section 169, IPC. In law, there must be a specific provision prohibiting an act to make it illegal.31 A Code of Conduct prescribed by the Government under certain notification by itself cannot be elevated to the level of law as has been rightly held by the Andhra Pradesh High Court in the case of Vidadala Harinadhababu v. N.T. Ramarao.32 Altough there are certain strong expressions used in the course of the said decision to the effect that " no Minister or Chief Minister can have the temerity to act contrary to such a Code" and it is binding on the Minister, still it cannot be elevated to the level of prohibition under law. Following observations made by a Full Bench of the A.P. High Court in this case are quite apposite: "21. The Codes of Conduct issued by the Union Government and the State Government are not statutory in nature. They lay down rules of conduct which the ministers must observe. They are in the nature of guidelines. They also prescribe the authority who should ensure compliance with the said Code; it is to him that the statements contemplated by paragraphs 1(a), 2(a) and 2(e) have to be furnished. Even the procedure to be followed in the case of an alleged or suspected breach of the Code is also left to the discretion of such authority. Having regard to the facts and circumstances of the Code, the 'authority' shall evolve the appropriate procedure. Evidently, the nature of action to be taken on such enquiry is also left to him. Not being statutory, Courts will not enforce them."

It was further observed33: 50. (i)

(ii)

There is no provision in the Constitution, nor is there any provision of law which regulates the conduct of a minister--which expression includes Chief Minister and Prime Minister. There is also no constitutional or statutory provision prohibiting a Minister from engaging himself in any profession, occupation, or business, whether actively for gain, or otherwise. The Code of Conduct issued by the Union Government--and by the State Government--is of great significance and sanctity, though it is not statutory. It fills a great void. The Code is evolved with an eye upon good Government and clean administration, not only in action but also in appearance. It is binding upon all ministers. It prescribes the authority who shall ensure observance thereof. The procedure to be followed by him and the action to be taken thereon is also left to him. Similar rules have also been evolved in United Kingdom. However, for the reasons given hereinbefore, the petitioners cannot seek to enforce the Code through the Court."

Even if the Government order is traced to have been issued under executive power of the State under Article 162, such a Code will not be enforceable when the language used is not in mandatory terms and they are intended to be mere guidelines or instructions to the persons concerned in authority. Therefore, as long as such a Code of Conduct is not enforceable in any Court of law and does not even provide what action could possibly be taken in case of breach by the Chief Minister, the prohibition contained therein is only having ethical or moral effect and any breach thereof cannot be treated to be unlawful or even illegal within the meaning of Section 43, IPC. To constitute a ground for civil action under Section 43, there must be a right in a party which can be enforced. It may be a breach of contract or a claim for damages or some such similar right accruing under any law. There is no law which debars the Chief Minister from participating in a sale conducted by any department of the Government or any of the corporations or any public sector undertaking affording a cause for civil action especially when no fraud or illegal gain is involved. Therefore, the Supreme Court was constrained to hold that the offence under the aforesaid provision has not been established.34 (d) Delegator not to revise/review his delegate's order

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The custodian of Evacuee Property, U.P., functioning under the provisions of the Administration of Evacuee Property Act, 1950 passed an order in respect of a property which was approved by the Assistant Custodian General as a delegate of the Custodian General of the Evacuee Property. Revision was filed before the Custodian General who took the view that his delegate had already approved the order sought to be revised so he could not exercise his revisional jurisdiction against the same order and dismissed the revision application which was challenged in High Court which took an otherwise view and remanded the proceedings for fresh decision. The Supreme Court observed that it was rightly held by the Custodian General that the revision application was not maintainable as the Custodian General could not undertake the exercise of being satisfied whether the order approved by his delegate was legal and proper which would amount to review which he was empowered to do under the relevant Section 27 of the Act.35 A mother, the victim of Bhopal gas leak disaster, claimed a compensation of 15 lakhs for the death of her daughter, who was conceived shortly after the disaster. She contended that the child in her womb was adversely affected on account of the gas she had inhaled. Her case was supported by the evidence of the doctor who had examined and treated the child and the medical evidence. The Deputy Commissioner, on evaluation of evidence accepted her case and awarded her a compensation of 1.5 lakhs. The Welfare Commissioner, Bhopal Gas Victim Tribunal, on a suo motu examination of the record felt that the Deputy Commissioner had committed a gross error and considered it fit to suo motu revise the decision. He issued notice to the claimant father, heard his counsel and taking note of the fact that his wife had conceived after the tragedy, came to the conclusion that there could be no direct effect of gas leakage on the pregnancy. He examined the doctor who deposed that the gas inhalation could have adverse effect on a child born in a span of five years after the tragedy. However, brushing aside the doctor's evidence on the ground that it was not supported by any expert opinion on research, he concluded that the claimant had failed to prove that, if the parents are adversely affected by the gas leakage and, if the conception is few years thereafter there would be an adverse effect found on the child and the child could die on that account. The Apex Court held that the commissioner was not justified in brushing aside the doctor's evidence and it was hardly a case for interference in exercise of suo motu revisional jurisdiction as it was not a case that the Deputy Commissioner had based his decision on irrelevant evidence or inadmissible evidence or evidence which could be said to be based on any mistake.36 This is a well-known principle that, if a Court is constituted by law and matters go before it under a special law, then the Court can also exercise various other general powers attached to the Court by other statutes. The same principle will apply to quasi-judicial tribunals also. Hence, once the revision goes to the Board of Revenue under Section 15 of the 1958 Act, the Board can exercise its review powers under the 1951 Act.37 Between 1951 and 1958, the revisional powers exercised by the Orissa Board of Revenue under various statutes were reviewable by the Board under Section 7 of the Orissa Board of Revenue Act 23 of 1951. Likewise, it was held that, after 1958, if the Board passed any orders under Sections 6-D, 15, 25 and 32 of the Orissa Survey and Settlement Act 1958 (3 of 1959) which repealed the statutes in force between 1951 and 1958, those orders became reviewable by resort to Section 7 of the 1951 Act. That is how the Board of Revenue, when it exercised powers of revision under the 1958 Act, became entitled to review those orders by resort to Section 7 of the 1951 Act.38 Thus, it was held by the Apex Court that the Board of Revnue would be certainly entitled to exercise review powers under Section 7 of the 1951 Act in respect of orders passed in its revisional jurisdiction under Sections 6-D, 15, 25 and 32 of the 1958 Act.39 The order of the delegate is to be treated, for all intents and purposes, as an order of the principal itself, in the instant case the Orissa Board of Revenue, and hence, it was held that the Board cannot revise an order passed by the delegate, the Commissioner of Land Records and Settlement.40 The Apex Court observed that it may be argued that, if the order of the delegate is tantamount to the order of the principal, then the principal can review such an order of the delegate. The Court said that this appears to be plausible at first but is not correct because of the intervention of the fundamental principle relating to "review" of orders i.e. a review application is to be made only to the same judge or if he is not physically available to his successor. Thus, the principle being applicable to quasi-judicial authorities also, the order passed by the delegate, Commissioner of Land Records and Settlement cannot be reviewed by the Board of Revenue. It can be reviewed only by the said Commissioner or his successor, because he alone would be able to remember the arguments made before him. Review of the Commissioner's order by the Board, would amount to an indirect power of revision by the Board of Revenue which was not permissible.41 Further, the Commissioner, being a delegate, its orders will have to be treated as orders of the Board of Revenue and will

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not be revisable by the Board. The Board cannot review the orders passed by the Commissioner, as the orders are not passed by the Board.42 It is a well settled principle that the principal does not lose his powers merely because those powers have been delegated to another body. Hence, in the instant case, the Board of Revenue and the Commissioner, both may exercise the revisional jurisdiction under 1951 Act, of course in respect of different pieces of land and the both can exercise the review powers under Section 7 of the 1951 Act to correct the obvious mistakes in their orders. When the delegate personifies his principal and his orders are to be treated as orders of his principal all other powers attributable to the personality, which he personifies, will be exercisable by him.43 5. SOME SPECIAL FORMS OF DELEGATED LEGISLATION In a large number of cases, the courts have considered the validity of various delegating provisions vis-a-vis the doctrine of excessive delegation. Some of these cases are noted here. The cases have been classified from the point of view of the nature of the power conferred under several broad heads. These categories are not mutually exclusive and have been adopted because of their most common occurrence and for the sake of convenience to facilitate analysis of cases. They are governed by the same overall principle of "excessive delegation". The truth, however, remains that, in practice, difficulties arise in applying the doctrine of excessive delegation to concrete situations and that, or the whole, the judicial tendency is to uphold the power of delegated legislation, and that it is only rarely that such a power may be struck down or the ground of excessive delegation. This is borne out by the following discussion. (a) Skeleton Legislation What does the term "skeleton legislation" mean? The term is used to denote a statute which delegates legislative power without laying down any principle or policy for the guidance of the delegate.44 In modern times, primary legislation is becoming more of a skeletal framework conferring not just the function of detailed implementation, but the power to determine major policy questions as well, on the Administration. Ordinarily, in India, a skeletal statute ought not to be valid because of the doctrine of Excessive Delegation which insists that the Legislature should lay down policies, in the statute which delegates legislative power. Otherwise also, as stated before, the usual justification for the institution of delegated legislation is supposed to be that while the legislature lays down the policies the Administration supplies the details within the framework of those policies.45 But such a distinction is hardly maintained in practice, and power to frame policies is usually delegated to the executive. It is not uncommon to find skeletal statutes in which the legislature lays down no policies, or lays down the barest of policies, or standards, or principles, and the executive is given power to legislate not only on matters of detail but even on matters of principles and policies without much of a limitation on power. The power of delegated legislation may be so wide in range and scope as to be subject to no meaningful restriction. In practice, the flexible way the courts apply the doctrine has resulted in the validation of many statutes which can be characterised as "skeleton legislation". A few typical examples may be cited here. In Harishankar Bagla v. State of M.P.,46 the following two sections of the Essential Supplies (Temporary Powers) Act, 1946, were questioned on the ground of excessive delegation: S. 3(1)--"The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply..."; S. 6: "Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act."

S. 3 is an excellent illustration of skeleton legislation as this provision empowers the executive to promulgate delegated legislation not only to fill in the details in the statute but even to decide questions of policy. A whole edifice of vast administrative control over essential commodities has been built up by the executive through

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administrative legislation under S. 3. However, the Supreme Court declared both the sections valid saying that the Act had sufficiently formulated the legislative policy, namely, "maintaining or increasing supplies etc." in S. 3 and given a clear and sufficient guidance to the government to exercise its power under the section. Justifying the broad delegation, the Court stated that the "ambit and the character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy."47 In other words, the Court recognised that the area of essential commodities control was such that broad delegation of legislative power was inevitable. S. 6 was also upheld. Its effect, the Court explained, was certainly not to repeal or abrogate any pre-existing law. Its object was simply to by-pass the law where it was inconsistent with the provisions of the Act in question and the orders made under it. The Court argued further that even if it be conceded, for the sake of argument, that an existing law stood repealed to the extent of its repugnancy with the order made under S. 3, by implication, then the repeal was "not by an act of the delegate," but was by the "legislative act of the Parliament itself," as Parliament itself had declared in S. 6 that an order made under Section 3 "shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act."48 In this way, the Supreme Court upheld a very broad delegation of power. Both these sections now survive in the Essential Commodities Act, 1955. Thus, under S. 3 of the Act, a very broad delegation of power to the Executive has been made, which has again been upheld by the Supreme Court.49 Under S. 3, the Executive has virtually a free choice of what orders it will issue and what steps it will take to control commodities. None of these orders has been held ultra vires on the ground of exceeding the authority conferred.50 There are quite a few other cases in line with the same liberal approach. In Bhatnagars & Co. v. Union of India51 was involved S. 3(1)(a) of the Imports and Exports (Control) Act, 1947 authorising the Central Government to prohibit or restrict the import or export of goods of any specified description by order. The statute is skeletal and gives no indication as to what considerations and policies are to be kept in view by the Government in controlling imports and exports. The whole regulatory process over import and export of goods has been developed by the Administration through delegated legislation under this statutory provision. But the Supreme Court held the statute valid arguing that the underlying policy was to be found in the preceding statute, the Defence of India Act, 1939, whose provisions the statute in question purported to continue. It is, however, not clear as to how this relation between the old and the new Acts was established by the Court. The only reference made to the old provision by the Act in question was in S. 4 under which all orders made under rule 84 of the Defence of India Rules, 1939 were to continue in force so far as not inconsistent with the Act. It may also be noted that the Defence of India Act was an emergency, colonial law and dealt not only with imports and exports but also with a whole range of other matters which became relevant in the war emergency. Further, the Defence of India Act was itself a skeletal piece of legislation. The whole complexion of import and export control has changed in Independent India and differs very much in details and fundamental approach from what it was in the 1940's. The control policies in the area of import and export are developed by the executive from time to time and for this purpose the Act in question lays down no guidelines. However, in support of the Court's decision it may be said that the subject of import and export control is so variable in the modern world that perhaps it is not possible for Parliament to lay down articulate norms which could be valid for all time to come and thus broad powers have to be left in this area to the executive, but the reasoning adopted by the Court to uphold the provision in question was very artificial. In Makhan Singh v. State of Punjab,52 the Supreme Court upheld, against the attack of excessive delegation, S. 3 of the Defence of India Act, 1962, which empowered the Central Government to make rules, as it "appears expedient" to it, for defence of India and maintenance of public order and safety. The All India Services Act, 1951 is an extremely brief statute of four sections of which the key provision is S. 3 which authorises the Central Government to make rules to regulate conditions of service in the all India Services. Pending the making of the rules under the Act, the rules existing on the date the law was enacted, were to be deemed to be the rules under the Act. Undoubtedly, it was an extremely wide delegation, as the Parliament had left the matter in the hands of the government in its entirety without laying down any policy. Yet the Supreme Court held the Act valid, arguing strangely, that the fact that the existing rules were adopted by the Act showed that the policy had been clarified as the existing rules contained the policy.53 But this argument is hardly tenable. The essence of the doctrine of excessive delegation is that policy be laid down by the legislature in the Act and not by the executive in the rules. It is not correct to control the discretion conferred

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under the Act through the rules made under a prior Act as these could be changed at any time. Further, to treat the existing rules as laying down the policy could result in the further argument that these rules could not be changed by the rule-making authority as that would be tantamount to the Executive changing the policy approved by the legislature, and in substance that view could result in very much restricting the rule-making power. It could certainly not be the intention of the legislature to fossilize or stratify the existing rules once for all.54 In Nachane55, the Supreme Court has upheld a statutory provision in the L.I.C. Act, 1956, providing that the service rules made thereunder shall have effect notwithstanding anything in the Industrial Disputes Act or any other law in force. Upholding the provision, the Court adopted mutatis mutandis the observations made in Bagla on S. 6 of the E.S.A.56 In case of a skeletal law, the delegate has too much power and all controls over rule-making are weakened.57 Keeping this eventuality in mind, the CMP suggested: "The precise limits of the law-making power which Parliament intends to confer on a Minister should always be defined in clear language by the statute which confers it; when discretion is conferred, its limits should be defined with equal clearness."58

To the extent possible, this precept ought to be kept in mind while delegating powers of subsidiary legislation. There may be exceptional situations when broad legislative powers may have to be delegated to the Administration, but this ought not to become a routine practice. (b) Power to include A statute may clothe the executive with the power to expand the range of its operation by bringing within its scope individuals, or bodies or commodities through methods other than formally amending a schedule.59. For example, the Essential Commodities Act, 1955 covers certain specified commodities listed in the Act and further empowers the Central Government to declare any other commodity as an "essential commodity" thus making the Act applicable to it. There is no difference of substance between this method and that of amending a schedule except this that it does not involve a formal amendment of the law. This technique gives a kind of flexibility to the law: as and when it is found necessary to extend the provisions of a statute to any person or object not covered by it, the executive can itself do so without seeking a formal amendment of the law by the legislature. Such a provision is held valid subject to the statute laying down a policy. In Mohmedalli v. Union of India,60 the Supreme Court upheld a provision in the Employees' Provident Funds Act, 1952, authorising the Central Government to bring within the purview of the Act such establishments as it may specify. This Act can be applied to a factory engaged in any scheduled industry employing twenty or more workers. The Act thus gives sufficient indication of the policy underlying its provisions.61 A case falling in the same category, but reaching a contrary result, is Hamdard Dawakhana v. Union of India.62 S. 3 of the Drugs and Magic Remedies, (Objectionable Advertisement) Act, 1954, was in question. This provision forbade an advertisement suggesting that a medicine could be used for curing any venereal disease or any other disease specified in the rules. The Court held that no criteria, standards or principles had been laid down in the Act for specifying "any other disease" in the rules. "It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease". So, the power to make rules to that extent was held to be uncanalised and uncontrolled and therefore invalid. The Bar Council of India Training Rules, 1995 have been framed by the Bar Council of India in exercise of its statutory powers under Section 24(3)(d) of the Advocates Act, 1961. The express language of the section clearly shows that the rule making power of the Council proceeds only in direction, namely, for bringing into the sweep of Section 24(1), all those who were not entitled to be enrolled as advocates under the provisions of Section 24(1). It is an enabling power to make eligible otherwise ineligible person for enrolment as an advocate. It cannot be exercised for making otherwise eligible person ineligible for enrolment by prescribing additional qualification of pre-enrolment training and examination for enrolment as an advocate.63

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(c) Power to exempt A statute may grant power to the executive to exempt from its operation any person, institution or commodity as the case may be, and thus restrict the scope of operation of the Act. This is done with a view to introduce some flexibility in the legislative scheme. While a statute has provisions of general applicability there may be some circumstances of hardship when some exceptions therefrom may become desirable in favour of some specified individuals or bodies. The power to exempt takes care of such an eventuality. Usually the power to grant exemptions is given in general terms and is not specified as to what type of persons or individuals can be exempted, or under what circumstances can they be exempted, or what type of exemptions can be granted. All these matters are left by and large to the discretion of the concerned official. In several cases, such exemption clauses have been held valid against challenges under Art. 14 of the Constitution which is the equality clause.64 For example, in Jalan Trading Co. v. Mill Mazdoor Union,65 the Supreme Court upheld S. Section 36 of the Payment of Bonus Act, 1965, authorising the government to exempt any establishment or a class of establishments from the operation of the Act having regard to the financial position and other relevant circumstances of the establishment provided the government is of the opinion that it would not be in the public interest to apply all or any of the provisions of the Act. Holding the provision valid vis-a-vis Art. 14, the Court observed: "Parliament has clearly laid down principles and has given adequate guidance to the appropriate government in implementing the provisions of S. 36.". S. 60 of the Madras Co-operative Societies Act, 1932, runs as follows: The State Government may, by general or special order, exempt any registered society from any of the provisions of this Act or may direct that such provisions shall apply to such society with such modifications as may be specified in the order.

This broad clause confers both the power of exemption as well as that of modification in applying the Act to any specific society. In Registrar, Co-Operative Societies v. K Kunjabmu,66 the clause was held valid against the challenge of excessive delegation, as the Supreme Court found the policy of the Act stated in the preamble, viz., to facilitate the formation and working of co-operative societies. There may arise complex situations in course of the working of the Act and formation and functioning of the societies. So, S. 60 enables the Government to relax occasionally the rigours of the provisions of the Act. The power given to the Government under S. 60 is to be exercised so as to advance the policy and objectives of the Act. As regards the exemption clauses, the Supreme Court has observed in Hindustan Paper Corp. Ltd. v. Govt. of Kerala:67 "In almost all the statutes by which the fiscal or economic interests of the State are regulated, provision for granting exemption in appropriate cases would have necessarily to be there and the power to grant exemption is invariably conferred on the Government concerned. The Legislature which is burdened with heavy legislative and other types of work is not able to find time to consider in detail the hardships and difficulties that are likely to result by the enforcement of the statute concerned. It has, therefore, now become a well-recognized and constitutionally accepted legislative practice to incorporate provisions conferring the powers of exemption on the Government in such statutes. Such exemptions cannot ordinarily be granted secretly. A notification would have to be issued and published in the Gazette and in the ordinary course it would be subject to the scrutiny by the Legislature. The power can be exercised only in the public interest as provided by the section itself."

Usually, under an exemption clause either an administrative order68, or a legislative order, can be made.69 When exemption is granted to a single specified entity, the order is regarded as an administrative order but when exemption is granted to a class of entities, the order is a legislative order.70 An order granting exemption may however be susceptible to challenge on the ground of discrimination under Art. 14 of the Constitution.71 This point has been discussed later.72 (d) Power to modify the statute At times, a statute may confer power on the executive to modify the statute itself through delegated legislation. Prima facie it is a drastic power as it makes the executive supreme over the legislature itself, as

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the executive can change any provision of the statute enacted by the legislature. The power of the executive is very similar in quality to the power of the legislature itself as the legislature has enacted the statute which the executive can modify. The CMP characterised such a power as an exceptional form of delegation.73 But, in some situations, it may be a practical necessity to confer such a power on the executive to provide for a flexibility of approach into the legislative scheme so as to meet the changing situation. When some complicated scheme is introduced, it is thought advisable to confer such a power on the executive to enable it to make necessary adjustments in the legislation itself so as to meet any unforeseen difficulty. If such power is not given to the executive, then it will have to go again and again to the legislature to effect necessary modifications in the Act. This may delay matters as the legislature is a busy body. It is necessary to balance two factors: (i) the danger of the executive misusing its power; and (ii) the need for delegating the power. The judicial treatment of the problem reflects this balancing approach, the tilt being in favour of the latter factor. Generally, the judicial approach in India is favourable to conferment of such a power on the executive subject to the rider that it cannot use such a power so as to change the basic policy underlying the Act in question, or effect any essential changes therein.74 Procedural rules can neither enlarge the substantive provision of an Act nor curtail the same.75 The 'modification' power is discussed under the following several heads. (e) Power to amend schedule A common legislative practice is to confer power on the Administration to amend the schedule annexed to the Act. Usually, the Act would say that the Act applies to the individuals, bodies or commodities mentioned in the schedule annexed, but the Government may alter the schedule from time to time by adding thereto or removing therefrom some items. Thus, the range of operation of the Act may be expanded or reduced by making alterations in the schedule through delegated legislation. Prima facie, such a provision involves delegation of power to modify the parent Act, but invariably such a provision has been upheld against the challenge of excessive delegation on the premise that it is be exercised in the light of the policy of the Act. A few examples may be cited here of such judicial approach. The Minimum Wages Act, 1948, has been enacted, as stated in its preamble, "to provide for fixing minimum wages in certain employments". The Act has been made applicable to employments mentioned in the schedule, but the Government has been given power to add any other employment to the schedule and, thus, bring that employment as well within the operational range of the Act. Ostensibly, the Act did not formulate any specific legislative policy to regulate the governmental power to add any employment to the schedule; "no principles had been prescribed and no standards laid down in that behalf". Nevertheless, the Supreme Court upheld the provision in Edwards Mills Co. v. State of Ajmer76, arguing that the policy is apparent on the face of the Act which is to fix minimum wages in order to avoid exploitation of labour in those industries where wages are low because of unorganised labour or other causes. The Court pointed out that the conditions of labour vary from State to State and the expediency of including a particular industry within the schedule can best be ascertained by the person placed in charge of administration of a particular State.77 Such a power has been validated even in taxing statutes.78 A case in point is Babu Ram v. State of Punjab.79 The Punjab General Sales Tax Act, 1948, levied a purchase tax on the sale of goods except the items or goods mentioned in Schedule C to the Act. The State Government, after giving three months' notice, could add to, or delete any goods from the schedule. This meant that if the Government added any item to the schedule, it became tax exempt; and if any item was excluded from the schedule, it became subject to taxation. The provision was challenged on the ground of excessive delegation of legislative power. The Court upheld the provision mainly on two grounds: (1) it is common to give to the executive the power to amend schedules and such power has been upheld in a number of cases; (2) changes in the said schedule could be made only after giving three months' notice. Thus, the government could make changes after giving prior publicity of its intention to make changes in the schedule and giving interested parties an opportunity to make representations against the proposed changes. "In the case of a democratic government, this itself acts as a check on arbitrary exercise of power," asserted the Court. Section 39 of the Bihar Agricultural Produce Markets Act 16 of 1960 authorises the State Govt. to add any

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item to the Schedule of the Act containing the items of agricultural produce. The power of altering the Schedule by addition or deletion so as to determine the area of control and the goods to be controlled other than those specified in the Schedule has been delegated by the legislature to the State Govt. in the same manner as the power has been delegated to the Central Govt. under Section 2(a) of the Essential Commodities Act 10 of 1955 to specify essential commodities other than those specified by the legislature itself.80 (f) Territorial extension of statute Another technique used is to confer power on the executive to extend a statute already in force in one area to another area with such modifications as the executive may think fit. Such a situation was present in the Delhi Laws Act already noted.81 Such a formula has also been held valid subject to the rider that the power of modification is not used in such a manner as to change the policy underlying the Act in question. In Rajnarain v. Chairman, Patna Administration Committee,82 the relevant statutory provision provided that the Government could extend to a particular area any section of the statute (viz., the Bihar and Orissa Municipal Act, 1922) subject to "such restrictions and modifications as the Government may think fit." The Supreme Court upheld the delegation of power but subject to what it said in the Delhi Laws Act case that "when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole."83 In this case, a notification extending to an area one section from a law prevailing in another area was quashed as it involved a change of policy of the law.84 In Lachmi Narain v. Union of India,85 the Supreme Court considered the validity of the power of extending a statute with modifications conferred on the Central Government by S. 2 of the Union Territories Act. This provision is similar to the one which was considered by the Court in the Delhi Laws Act case.86 On the face of it, S. 2 appears to give an uncontrolled power of modification of a statute being extended to a Union Territory. But such a broad view would have rendered the provision vulnerable on the ground of excessive delegation as it amounts to authorizing the delegate itself to sit over the judgment of the legislature. The Court therefore engrafted several limitations on the provision to save it from the vice of excessive delegation, viz., (i) the power conferred by the provision in question is that of extension, bringing into operation and effect in a Union Territory an enactment already in force in a State. (ii) The power to make "restrictions and modifications" in the enactment sought to be extended is not a separate and independent power but is an integral constituent of the power of extension. It can be exercised only along with, and not apart from, the power of extension. (iii) This power exhausts itself once the enactment is extended to the Union Territory. After the law has been extended, the power of modification cannot be exercised again. (iv) In the exercise of this power, only such "restrictions and modifications" can be validly engrafted in the enactment to be extended as are necessary to bring it into operation and effect in the Union Territory. "Modifications" which are not necessary for, or ancillary and subservient to the purpose of extension, are not permissible. And, only such "modifications" can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying it into operation and effect. (v) The words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature of the enactment or the legislative policy built into it. The scope of the words "restrictions and modifications" is to be confined to "alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory". Lachmi Narain reiterates forcefully the approach adopted by the Court in Delhi Laws Act and Raj Narain. Two alternative strategies may thus be adopted by the courts as regards a provision conferring power of modification of legislation on the executive: (i) if the provision is very broadly worded, and is capable of being used to change the basic policy of the statute, it may be declared invalid on the ground of excessive delegation. Such instances are rare.87 (ii) The judicial strategy usually adopted is to interpret the provision narrowly so as to protect it from being hit by the doctrine of excessive delegation and then to adjudge the validity of the delegated legislation issued thereunder so as to see whether it effectuates any change in the policy of the parent statute or exceeds the power delegated in any other manner. This topic is discussed in

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the next Chapter under Judicial Control. The question of validity of delegating power to the executive to extend a law prevailing in one area to another area after making "suitable modifications" has been recently discussed by the Supreme Court at some length in Brij Sunder Kapoor v. First Additional District Judge,88 and on the whole, the Court has adopted a liberal view in the matter. There are several cantonments interspersed throughout the length and breadth of India. As per the Indian Constitution, legislative power over these areas vests in the Central Parliament and not in the Legislature of the State where a cantonment is situated. It was felt necessary to have a rent control law in the cantonments. Accordingly, Parliament has enacted an Act (Act 46 of 1957), S. 3 of which runs to the following effect: "The Central Government may, by notification in the official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force in the State in which the cantonment is situated".

This provision was challenged on the ground of excessive delegation. The argument was that Parliament could not predicate on the date of passing the above law as to what law a State would pass in future regarding rent control. Thus, the Central Government was authorized to introduce a law in the cantonment to the provisions of which Parliament did not have any occasion to apply its mind at all. Also, it was argued that the Central Government was authorised to effect such modifications into the law as it thought fit. Thus, material modifications could be introduced into a State law before extending the same to a cantonment. Too broad legislative power was thus delegated to the Government. The Supreme Court however rejected the contention and upheld the validity of the provision impugned. The Court stated in this connection:89 "These cantonments were located in the heart of various cities in the different States and unlike the position that prevailed in early years, had ceased to be a separate and exclusive colony for army personnel. It was, therefore, but natural for Parliament to decide, as a matter of policy, that there should be no difference, in the matter of housing accommodation, between persons residing in cantonment areas of a State and those residing in other parts of the State and it is this policy that was given effect to by Act 46 of 1957."

Having decided upon this policy, Parliament could do either of two things: pass a separate statute in respect of cantonment areas in each State or merely extend to them the statutes prevalent in the respective States by a single statute. The second course was opted upon by Parliament. As regards the power to effectuate "modifications" in the State statute before extending the same to a cantonment, the Supreme Court said that this had a very limited connotation: "The nature of modifications or restrictions each statute would require can only be a matter of detail of drafting, of not much significance or importance, once the general policy was clear. It is only this matter of detail that has been delegated to Central Government to be attended to while passing appropriate notifications in each case." The Central Government "cannot change the basic essential structure or the material provisions of the law sought to be extended to the cantonment areas." The Court also ruled that the power conferred by S. 3 on the Central Government enables it to issue notifications from time to time as occasion arises and it is not a one time affair and is not exhausted by one single invocation.90 In Ramesh Birch v. Union of India,91 the Supreme Court has upheld as valid a provision in relation to Chandigarh similar to the one validated in Delhi Laws Act or Lachmi Narain. There is however one additional point which has emerged in Birch, If a law is already in existence in a Union Territory on a subject matter then no law can be extended to it again which may be in "actual conflict" with the existing law. Giving power to the executive to repeal or abrogate an existing law and substitute in its place another law which may be operative in some State, is not permissible and valid. A law may be extended when-(1) there is no law, there is vacuum, in the Territory concerned; (2) there may be an already existing law in the territory, but the law being extended is not in conflict with it but supplements it, makes additions to it; if both the existing and the law being extended can stand side by side. In Lachmi Narain, the Supreme Court had expressed the view that under S. 2, Union Territories Act (similar to the law involved in Birch), the power to extend the law to a Union Territory regarding a subject matter, is a one time affair. This view has now been modified in Birch to the extent that while the power is not a one time

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affair, and another extension of a law on the subject matter can take place, provided that the later law is not in 'actual conflict' with the law already prevailing in the Union Territory. Another interesting question disposed of in Birch is whether it would be valid for Parliament to authorise the executive to extend to a Union Territory a law to be passed in future by a State Legislature. The argument against this was that, as regards the existing State laws, one could assume that Parliament has approved the policy underlying these Acts, but how could one assume that the policy of the laws which have not yet been passed, but will be passed at some future date has also been approved by Parliament, In Delhi Laws Act the Court had validated the provision regarding extension of future laws, but doubt was thrown on this ruling in Pondicherry. Now, in Birch, by-passing Pondicherry, the Court has reiterated the ruling in Delhi Laws Act and has held a provision authorizing extension of future State laws to the Union Territories. In Kapoor, a similar proposition has been accepted as regards extension of laws to the cantonments. (g) Applying provisions from one act to another act with modifications A statute may empower the Government to apply to certain matters thereunder provisions from another statute with necessary modifications. For example, S. Section 43 of the Life Insurance Corporation Act, 1956, authorises the Central Government to apply the provisions of the Insurance Act, 1938, with such modifications and conditions as it thinks expedient to the Life Insurance Corporation. S. 12 of the Central Excises and Salt Act, 1944, authorises the Central Government to apply to certain matters under the Act, provisions of the Customs Act, 1962, with such modifications as the Government may consider necessary. As regards this provision, in N.C.J. Mills Co. v. Asst. Collector, Central Excises,92 the Supreme Court has reiterated the principle that "the power to restrict and modify does not import the power to make essential changes" and that "it is confined to alterations of a minor character and no change in principle is involved." The Court asserted: "No question is thus involved of delegation either of any essential legislative functions or any change of legislative policy." (h) Henry VIII Clause At times a statute may contain a 'removal of difficulty' clause, or which is nicknamed in England as the "Henry VIII clause" because "that king is regarded popularly as the impersonation of executive autocracy."93 What is sought to be denoted thereby is that such a clause vests an unlimited power, or rather an autocratic power, in the executive to change the legislation made by the legislature. Accordingly, the use of such clauses has been adversely criticised in England.94 Usually what happens is that when a law is enacted to implement a new socio-economic scheme, and the legislature is not sure of the difficulties which may crop up in future in implementation of the law, the legislature introduces a "removal of difficulty" clause in the statute. The clause envisages the government to remove any difficulty which may arise in putting the law into operation. Generally, two types of such clauses can be identified in the Indian statutes. One is a narrow one under which, "power to remove difficulties" has to be exercised consistent with the provisions of the parent Act. In such a case, the government cannot modify any provision of the parent statute itself. An example of this can be seen in S. Section 128 of the States Reorganisation Act, 1956 which laid down: "If any difficulty arises in giving effect to the provisions of this Act, the President may by order do anything not inconsistent with such provisions which appear to him to be necessary or expedient for the purpose of removing the difficulty."

The restrictive variety of removal of difficulty clause has been held to be valid on the touchstone of the doctrine of excessive delegation.95 S. 45(10) of the Banking Regulation Act, 1949, runs as follows: "If any difficulty arises in giving effect to the provisions of the scheme, the Central Government may by order do anything, not inconsistent with such provisions which appears to it necessary or expedient for the purposes of removing the difficulty.

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Under this clause, three requirements need be fulfilled for an order to be validly made, viz.: (1) a difficulty has arisen in giving effect to the provisions of the scheme; (2) the order to be made is such as appears to the Government to be necessary or expedient for the purpose of removing the difficulty; and (3) the order is not inconsistent with any provision of the scheme.96 Here the modification of the parent Act is not permitted; the 'removal of the difficulty' order is not final and its validity can be tested in a court of law.97 S. 42 of the A.P. General Sales Tax Act, 1957 provided that "if any difficulty arises in giving effect to the provision of this Act," the State Government "may make such provisions as appear to them to be necessary or expedient for removing the difficulty". Under this provision, the State Government issued an order clarifying that "cast iron castings" would be included in the term "cast iron" and, thus, be exempt from sales tax. Quashing the order, the Supreme Court pointed out in Bengal Iron1 that 'cast iron castings' were "different and distinct" goods from "cast iron", that the power under S. 42 was to be used not for "altering" the provisions of the Act but only "for giving effect" to those provisions. What was taxable under the Act could not be exempt from taxation by the government order. "Cast iron castings" were taxable under the Act; they were different from "cast iron" which was not taxable. The government could not therefore say, under S. 42, "that the levy created by the Act shall not be effective or operative". "In other words", said the Court, "the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be." Another version of the 'removal of difficulties' clause is broader as under it the government may be authorised to modify the parent Act, or any other Act, in the name of removal of difficulties. Usually such a power is limited in point of time, say two or three years from the commencement of the Act in question. Such a clause may run somewhat as follows: "If any difficulty arises in giving effect to the provisions of the Act, the government may, as the occasion may require, by order, do anything which appears to be necessary for the purpose of removing the difficulty." A supreme illustration of such a clause is provided by the Indian Constitution itself which under Art. 392(1) authorised the President to direct by order that the Constitution would, during such period as might be specified, have effect subject to such adaptations, whether by way of modification, addition or omission, as he might deem to be necessary or expedient. No such order could, however, be made after the first meeting of Parliament duly constituted under the Constitution. Art. 372 of the Constitution conferred a similar power of making adaptations and modifications in the existing law to bring the same in accord with the Indian Constitution.2 The broader version of "removal of difficulty" clause gives power to the government to make necessary adjustments in the statute to meet any difficulties which may arise in its implementation. Such a provision is objectionable as it vests a vast arsenal of power in the executive. Such a power is inconsistent with the principles of parliamentary democracy that the subordinate law-making authority be given power to amend a statute passed by the superior law-making authority. Nevertheless, the exigencies of modern administrative process demand that such a power be conferred on the executive when a new and complicated socio-economic measure is brought into force. In Jalan Trading Company v. Mill Mazdoor Union,3 the Supreme Court considered the validity of such a removal of difficulty clause. S. 37(1) of the Payment of Bonus Act, 1965 empowered the Central Government to make provisions, not inconsistent with the purposes of the Act, for removal of difficulties or doubts in giving effect to the Bonus Act. S. 37(2) purported to make the order of the Central Government issued under sub-sec. (1) final. By a majority, the Court held S. 37 invalid on the ground of excessive delegation of legislative power.. The Government had been made the sole judge whether any difficulty or doubt had arisen in giving effect to the Act, whether it was necessary or expedient to remove the doubt or difficulty, and whether the order made was inconsistent or not with the purposes of the Act. The clause involved in Jalan differed from the one involved in Delhi Laws Act and Rajnarain. In the latter case, the power was to extend a statute already in operation in one area to another area, and the power of modification was to be used only to make such adjustments in the statute as may be necessary to make it suitable for the new area. No modification was to be made in the original law as it prevailed in the old area. The court could examine whether the modifications made were inconsistent or not with the basic policy of the law in question. But the power conferred in Jalan was much wider in so far as the original legislation could be modified thereunder and the courts could not go into the question whether or not the modifications effected in the parent Act were against the basic policy of the Act.

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Since Jalan, the Supreme Court has somewhat relented in the matter of upholding the validity of the broader variety of removal of difficulty clauses. Such a clause does not stipulate that the provisions to be made by the government to remove the difficulty must not be inconsistent with the parent Act and so it means that provisions of the Act can also be amended to some extent. Such a clause has been held valid because of the following considerations: existence or arising of a "difficulty" is the sine qua non or the condition precedent for the exercise of power under such a clause, and, therefore, whether a difficulty has arisen or not is a matter which is not within the "subjective satisfaction" of the government; it must be established as an "objective" fact. This means that the court has to be satisfied that in fact a difficulty has arisen and that the difficulty needs to be removed and so the removal of the difficulty order is necessary. If there is no 'difficulty', the power to remove difficulty cannot be exercised. Again, the difficulty in question is a difficulty arising in giving effect to the provisions of the parent Act, and not a difficulty arising aliunde, or an extraneous difficulty. Therefore, a government order seeking to remove a difficulty which has not arisen would be unauthorised. Further, in removing the difficulty, the government can exercise the power under the clause in question only to the extent it is necessary for applying or giving effect to the Act and no further. Thus, the essential provisions of the Act cannot be amended. In the words of the Court itself: "It [the government] may slightly tinker with the Act to round off angularities, and smoothen the joints or remove minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. In no case, can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act."4 It is evident from the above that "finality" cannot be conferred on an order made by the government in exercise of the power of "removal of difficulty" and that only minor amendments can be made in the parent Act without changing its basic policies. The Court reserves to itself the power to decide whether any "difficulty" has arisen in fact to remove which any action is necessary. Applying these principles, the Court declared the provisions made by the government under the removal of difficulty clause ultra vires in Straw Products5 and Sinai,6 because there was no difficulty in applying the provisions of the Act, and the government order, in effect, attempted to change the fundamental scheme of the parent Act in question. S. 19A of the Employees' Provident Funds Act, 1952, authorises the Central Government to give any direction, "not inconsistent with the provisions of this Act" for "the removal of the doubt or difficulty" if "any difficulty arises in giving effect to the provisions of this Act." The order of the Central Government is to be final. Explaining the scope of this provision, the Supreme Court has stated in Union of India v. Ogale Glass Works,7 that after a court has given a decision on a particular aspect relating to the Act and the scheme, no difficulty can be said to arise and, therefore, no occasion can arise for the Central Government to give a direction under S. 19A. The Central Government is bound to give effect to the decision, then the same could be treated as a direction under S. 19A. But after the court's decision, there is no warrant for assuming that there still remains some difficulty or doubt in respect of which the Central Government may give a direction under Section 19A. The Committee on Ministers' Powers8 criticised the use of the Henry VIII clause on the ground that it is inconsistent with the principles of parliamentary government that the subordinate law-making authority should be given power by the superior law-making authority to amend the statute passed by the superior authority, that it provides a temptation to the executive to be slipshod in preparing the bills, and also that such a power might be unscrupulously used by the executive. However, recognising the advisability of having such a clause when a new and complicated socio-economic legislative measure is being brought into force, the committee suggested that the Henry VIII clause should be used for the sole purpose of bringing an Act into operation and that too only when "demonstrably" essential and only for a period of one year from the passing of the Act. This is a sound suggestion and might as well be followed by the draftsmen in India. That the clause is susceptible of misuse is very tellingly exemplified by Krishnadeo Misra v. State.9 The State of Bihar continued to issue circulars and instructions, without even formally making any rules, for eleven long years under the 'removal of difficulty' clause in the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976. The High Court deprecated the practice in very strong terms. (i) Power of taxation In a democratic system, levying tax is regarded exclusively as a function of the legislature as this power is a strong weapon at the disposal of the legislature to control the executive.10 The democratic tradition of taxation by the legislature is very strong. But, in modern times, a dent has been made even in this principle

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and delegation has permeated the tax area as well. After the legislature enacts the statute to levy a tax, it leaves some elements of taxing power to the executive. The doctrine of excessive delegation is applied by the courts to adjudge the validity of the provision delegating the power. The courts uphold delegation of power to decide "matters of details" concerning the working of the tax law in question. However, the truth is that the expression "matters of details" is merely an euphemism to cover delegation of significant and substantial taxing powers to the executive. This is one area where the power of the legislature ought to have been preserved, but the truth is that the Supreme Court has been quite liberal in the matter of delegation of taxing powers on the ground that the legislature should have more leeway in a fiscal measure.11 Several variants of formulae are used to delegate power in the tax area. First, power may be delegated to government to exempt a commodity from the purview of a tax. In Orient Weaving Mills v. Union of India,12 a provision conferring power on the Central Government to exempt any excisable goods from the whole or part of the duty leviable on such goods was held valid against the plea of excessive delegation. A statute levied a multi-point sales tax, but in case of the goods notified by the government a single point tax could be levied. The Supreme Court held the provision valid saying that while a legislature cannot delegate its essential legislative function, it can delegate the power to select the persons on whom, or the goods or the transactions on which, the tax is to be levied. In the instant case, it is not possible for the legislature itself to select goods to be subjected to the single point tax. Before making such a selection, several matters need to be considered, such as, impact of the levy on society, economic consequences, administrative convenience, etc. These factors change from time to time. Hence, in the very nature of things these details have got to be left to the government.13 Secondly, power may be conferred on the government to bring additional transactions, commodities or persons within the purview of a tax. In Babu Ram,14 a provision authorising the government to bring any goods within the purview of sales tax law was held valid. Thirdly, power may be conferred on the executive to fix the rates of tax itself. Law may impose a tax but may leave it to the executive to quantify the rate at which it is to be levied. The statute usually fixes a maximum limit subject to which the executive may fix the rate of taxation from time to time. A few examples of this may be mentioned here. Under the Coal Mines (Conservation and Safety) Act, 1952, the Central Government is empowered to impose a duty of excise, subject to a maximum prescribed, on all coal raised and despatched, and as a corollary thereof, the government may impose an equivalent import duty on the coal imported. The Terminal Tax on Railway Passengers Act, 1956 authorised the Central Government to fix rates of taxation subject to the maximum fixed in the Act. The courts, speaking generally, do not favour delegation of an unrestricted power to fix rates of tax; they require that the legislature should itself fix the maximum limit subject to which the executive may fix the rates. In Devi Das v. State of Punjab,15 the law empowering the executive to levy sales tax at a rate not, exceeding 2% was held valid. The Court stated that it was all right to confer a reasonable area of discretion on the government by a fiscal statute, but a large statutory discretion placing a wide gap between the minimum and the maximum rates, and, thus, enabling the government to fix an arbitrary rate might not be sustained. In the ultimate analysis, the permissible discretion depends upon the facts of each case. In the instant case, the discretion to fix the rate between 1% and 2% was insignificant, and did not exceed the permissible limits. In the same case, a provision authorising government to levy sales tax at such rates as it deems fit was held bad as there was no policy or guidance discernible from the statute and thus an uncontrolled power was conferred on the executive to levy tax from time to time. It was too broad a delegation without any guidelines and to sanction the same would be "to destroy the doctrine of excessive delegation itself". In Sitaram Bishamber Dayal v. Uttar Pradesh,16 the power to impose sales tax at a rate not exceeding 5% was not regarded bad by the Supreme Court as the rate prescribed was a reasonable upper limit. To the same effect is V. Nagappa v. Iron Ore Mines Cess Commissioner.17 A Central Act authorised the Central Government to levy, by notification in the official gazette, a cess up to 50 paise per metric tonne on iron and spend the money so collected on labour welfare. The delegation of power was held valid because the provision laid down the purposes for which the duty collected was to be utilized and these purposes were neither vague nor indefinite. The policy of the Act was thus clearly stated. Further, the maximum rate at which the tax might be collected had been fixed. Said the Supreme Court: "The area within which discretion has to be exercised having been clearly demarcated, it cannot be said that a blanket power to fix the rate has

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been delegated to the government." On the other hand, there is Papiah.18 A State Act provided for levy of excise duty "at such rates as the government may prescribe". Here was delegation running "riot"--there was neither any policy guidance given nor was any maximum rate of taxation prescribed. Yet the provision was held valid. The decision does not accord with the earlier cases where the Court emphasized upon the necessity on fixing the maximum tax limit by the legislature within which the executive discretion could operate. For the reasons already mentioned earlier, Papiah cannot be regarded as good law.19 In Shama Rao v. Union territory of Pondicherry,20 the Pondicherry Assembly passed an Act in 1965 providing that the Madras General Sales Tax Act, 1959, as in force in the State of Madras immediately before the commencement of the Pondicherry Act, would apply to Pondicherry; and the date of commencement of the Act was left to the Pondicherry Government. The result was that all the amendments to the Madras Act passed by the Madras Legislature during the period of enactment and commencement of the Pondicherry Act automatically became applicable to Pondicherry. The Supreme Court ruled that this amounted to abdication of its power by the Pondicherry Legislature in favour of the Madras Legislature, and, therefore, the Pondicherry Act was bad on account of excessive delegation. The Pondicherry Legislature at the time of passing the Act in question could not anticipate that the Madras Act would not be amended nor could it predicate what amendments would be carried out, whether they would be of a sweeping nature or whether they would be suitable in Pondicherry. In the opinion of the Court, the Pondicherry Legislature accepted the amended Act though it was not and could not be aware what the provisions of the amended Act would be. The Pondicherry case can be looked at from two angles: (i) there was an abdication of power in favour of another legislature; (ii) there was an abdication in favour of the Pondicherry Government as by fixing the date of commencement of the Act, the Government could adopt the future laws enacted by the Madras Legislature. As far as the second angle is concerned, it was covered by the Delhi Laws case, but the court did not follow that case, as in its opinion there was difference of opinion among the Judges with respect to several matters.21 As for the first angle, the Supreme Court ruled that, in the circumstances, there was a 'total surrender' by the Pondicherry Assembly in favour of the Madras Assembly. S. 8(2)(b) of the Central Sales Tax Act, 1956, authorises levy of sales tax on sales of goods in the course of interstate trade and commerce at the rate of 10%, or at the rate applicable to the sale or purchase of such goods inside the appropriate state, whichever is higher. The italicised portion of S. 8(2)(b) was challenged on the ground of excessive delegation, the argument formulated being that fixation of rate of tax is a legislative function; that in so far as Parliament had not fixed a rate of tax itself, but adopted the rate prevailing in a State if over 10%, it had abdicated its legislative function. It was argued that a State Legislature would fix the rates of sales tax in its own right and according to its own needs and Parliament would be adopting this rate for Central taxation even without being aware of what the rate might be in future. The Court declared the provision valid in Gwalior Rayon.22 The Court argued that the provision was enacted to prevent evasion of the Central sales tax and there was a clear legislative policy underlying the impugned provision, viz., that the rate of Central sales tax would in no case be less than the rate of local sales tax. The Court pointed out that it was not possible for Parliament to fix the maximum rate of tax because the rate of local sales tax varied from State to State, and the State Legislatures could vary the rates from time to time. Parliament has no control over local rates and, therefore, Parliament has "necessarily, if it wants to prevent evasion of payment of Central sales tax, to tack the rate of such tax with that of local sales tax, in case the rate of such local sales tax exceeds a particular limit." The Court ruled that S. 8(2)(b) was induced by a desire to prevent evasion of the Central sales tax. Prima facie, it may appear that S. 8(2)(b) of the Central Sales Tax Act does not reveal any policy, but a deep analysis and the history of the statute would show that it had been drafted after careful consideration of the complicated economic factors and administrative problems to rectify in the best possible manner the problems which arose before the enactment. The Court distinguished the Pondicherry case by ruling that, in the instant case, unlike Pondicherry, there was no such abdication by Parliament in favour of the State Legislatures.23 In State of Kerala v. Madras Rubber Factory Ltd.,24 The Supreme Court held that a charge under a taxing statute can only be under the Act and not under the rules. The rules normally provide for the procedure to be followed for the realisation of the statutory dues. (1) Delegation of taxing power to a non-elected body

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The Bangalore Development Authority Act, 1976 delegated the taxing power to Bangalore Development Authority, which was a non-elected body which was challenged before the Apex Court besides on the grounds of it being excessive, unguided and arbitrary. The Court held that the BDA undertakes so many developmental activities and as such it could not be treated as a stranger for the purpose of being delegated the authority to levy property tax on the property situated within its jurisdiction. The Court further held that the taxing power was not left to the arbitrary wisdom/discretion of the delegate as the same was governed by the procedure to be adopted under the Bangalore Corporation Act, 1949 which itself provided for an elaborate machinery for determining the levy and collection thereof. Therefore, the delegation was neither beyond the scope of legislative power nor was in excess of the same. Besides the said delegation was neither unguided nor arbitrary.25 (2) Power to determine compensation The Section 124-A of the Railways Act, 1989 provides that a passenger injured in any ontoward incident occurring in the Railways could claim compensation but it does not fix the amount of compensation payable. The statute leaves it to be determined by the Central Govt. from time to time by means of rules. This delegation to the Central Govt. indicates that it was difficult for Parliament to fix the amount because compensation amount is a varying phenomenon and the Govt. would be in a far more advantageous position to ascertain what would be just and reasonable compensation in respect of myriad different kinds of injuries taking into account very many factors.26 (j) Delegation to municipal bodies A liberal judicial approach is discernible in the case-law in the matter of delegation of legislative power to municipal bodies. One reason for this judicial attitude is that these bodies are representative institutions, which are responsible to the people, and this element serves as an inherent restraint on these bodies in the matter of making delegated legislation. Broad delegations to such bodies have been upheld with a view to strengthen the institution of local self-government which is regarded as the primary unit of democracy. Thus, a provision conferring power on a municipal corporation to levy octroi duty on commodities other than those specified in the statute,27 or a power to levy electricity tax by the municipal corporation without any limit conferred by the parent Act, has been upheld.28 This is because "the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation."29 A municipal corporation consists of elected people; the power is exercised after debate by elected representatives; they have to go to the electors after regular interval with the possibility of being thrown out in case they act unreasonably. This factor imposes on in-built safeguard on excessive delegation as regards municipal bodies. Other safeguards may also be there, e.g., the statute may provide maximum rates of taxation to ensure that taxation only at a reasonable rate is imposed; government approval or sanction is usually necessary for any taxation proposal by a municipality;30 there may be provision for consultation with local inhabitants etc.31 The needs of a municipal body are limited as compared with those of the government whose needs are practically unlimited and this factor also imposes a kind of restraint on the level of taxation by a municipal body. This factor was emphasized by the Supreme Court in Corporation of Calcutta v. Liberty Cinema.32 A State statute conferred power on the corporation to levy a licence fee on cinemas at such rates as the corporation "may resolve from time to time." The legislative policy of "imposing taxes at such rates by the corporation as may be necessary to defray the cost of discharging its duties" which the court impliedly read into the statute was held to be a sufficient guidance to the corporation for validating the statute. In Modi,33 a provision conferring power on a municipal corporation to levy tax on lands and buildings without fixing any maximum limit was upheld. According to the Court, mere absence of a provision prescribing the maximum rate in the Act delegating power to the corporation to levy a tax does not per se render such delegation arbitrary or excessive, for corporation's taxing power is limited to the extent of its statutory needs which furnishes sufficient control over and provides guidance to the corporation. The contrast in judicial attitude toward the executive and the municipal bodies, in the matter of delegation of taxing power, is further underlined when reference is made to another situation. At times, the State Legislature, without specifying what taxes municipalities may levy, confers on them the power to levy any tax

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which the Legislature itself may levy. This is an extremely broad delegation indeed and, prima facie, on general principles, should be deemed to be invalid on the ground of excessive delegation as the statute contains no policy to guide the municipalities as to what taxes to levy, and at what rates to levy them. Nevertheless, the Supreme Court has upheld such a provision arguing that only such taxes may be levied by a municipality as are necessary to implement the purposes specified in the statute, and this provides a sufficient guideline to the municipality. Also, prior sanction of the State Government is necessary for imposing such a tax.34 In Avinder Singh v. State of Punjab,35 when a municipality failed to carry out its direction to impose sales tax at the rate of Rs. 10 per bottle of foreign liquor, the State Government itself imposed the same for municipal purposes. The Act in question did not lay down any minima or maxima of tax rates. Had the municipality imposed the tax, it was required to give an opportunity to the residents to file objections against it, but the Government was under no such obligation. Still the Court upheld the statutory provisions arguing that it made no difference in principle whether the tax was directly levied by the municipality or the Government for the benefit of the former and not to replenish its coffers. However, the Court ignored a very significant consideration in this case: the municipality would have been directly responsible to the people of the area while the State Government was not. Responsibility to the locality has been a strong factor in support of broad delegation to municipality; this factor was absent here. Further, in the instant situation, the residents lost their right to object to the levy of the tax which they could have exercised if the municipality and not the State Government had levied the tax. The above-mentioned cases undoubtedly sanction broad delegation of taxing power to municipal bodies. But, as the Devidas case shows,36 no such general proposition about the validity of wide delegation of taxing power to the executive government can be spelled out from these decisions. It may be noted that a similar position obtains in the United States. While the State Courts take a strict view of the 'non-delegation doctrine', yet delegation to municipal bodies is considered as an exception thereto.37 In the same genre falls J.R.G. Mfg. Association v. Union of India.38 S. 12(2) of the Rubber Act, 1947 empowers the Rubber Board to levy an excise duty on either the owner of a rubber estate by whom rubber is produced or on the manufacturer by whom such rubber is used. In upholding the provision against the challenge of excessive delegation, the Supreme Court based its decision on the following considerations: the Rubber Board is a high powered body having representation of various rubber interests and, thus, it could keep in view the interests of all concerned; the policy of the Act in question has been enunciated with. sufficient clarity and the Act furnishes guidance to the board as to how it should levy and collect the tax; all acts of the board are subject to the control of the Central Government which can modify, cancel or suspend any action of the board; and the board is to levy the duty in accordance with the rules made by the Central Government which are laid before Parliament. 6. BINDING EFFECT In R.K. Trivedi v. Union of India,39 the Supreme Court held that, when the statutory rules provided a particular mode of selection for certain posts, the Central Administrative Tribunal could not in law direct that the essential mode which was required to be followed could be given a go-by. 7. CONDITIONAL LEGISLATION During the colonial days in India, modest delegation of legislative power was held valid by the courts under the rubric of 'conditional legislation'. The idea behind this term is that the legislature makes the law which is full and complete in all respects, but it is not brought into operation immediately. The enforcement of the law is made dependent upon the fulfilment of a condition, and what is delegated to the outside agency is the authority to determine, by exercising its own judgment, whether or not the condition has been fulfilled. Thus, in conditional legislation, the law is there but its taking effect is made to depend upon determination of some fact or condition by an outside agency.40 The operation of the rule can be illustrated by reference to a few cases. The classic case is Queen v. Burah.

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41

In 1869 the legislature passed an Act to remove Garo Hills from the system of law and courts prevailing therein, and to vest the administration of justice therein in such officers as the Lt. Governor of Bengal might appoint. The law also authorised the Lt. Governor of Bengal to extend to Garo Hills any law which might be then in force in other territories under him. The Act was to come into force on a day appointed by the Lt. Governor. The Act was held valid by the Privy Council on the ground that the legislature having determined that a certain change should take place, had left to the discretion of the Lt. Governor the time and manner of carrying the same into effect. The legislature had exercised its judgment as to the place, person, laws, powers, and legislated on all these things conditionally. In King Emperor v. Benoari Lal,42 an ordinance promulgated by the Governor-General providing for the setting of special courts was in question. The operation of the ordinance was left to each provincial government on being satisfied that emergency had come into existence in the province concerned. The ordinance was upheld as an example of conditional legislation as the local application of its provisions was to be determined by the local administrative body. S. 1(3) of the Employees' State Insurance Act, 1948, passed by Parliament provided that the Act "shall come into force on such date or dates as the Central Government may by notification in the official gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States and for different parts thereof." The provision was held valid as an example of conditional legislation.43 The Court pointed out that the said Act prescribed a self-contained code in regard to the insurance of the employees covered by it. In leaving to the discretion of the Central Government when the scheme should be brought into force and in respect of what factories, the Legislature was doing "what is usually done by conditional legislation." The scheme though very beneficent, could not be introduced all at once in the. entire country. Such a scheme can be introduced only in stages and so, inevitably, the question of extending the benefits contemplated by the Act in question has to be left to the discretion of the concerned government. In Inder Singh v. State of Rajasthan,44 the Rajasthan Government promulgated an ordinance for two years, but the Governor was authorised to further extend its duration by a notification. The Governor extended the life of the ordinance first by two years and then again by two years. The Supreme Court held the power to extend the life of the ordinance valid as being conditional legislation. In A.K. Roy v. Union of India,45 the Court upheld a provision in a constitutional amendment giving unfettered discretion to the executive to bring the amendment into effect. From the above, it is clear that when a legislature enacts a law and authorises an executive authority to bring it into force in such area, or at such time, as it decides, or to extend the life of the legislation, it is characterised as conditional legislation.46 The doctrine of conditional legislation is reminiscent of the colonial days when the Privy Council had to draw a kind of compromise between the exigencies of administration demanding delegation, and the limited character of the colonial legislatures bound as they were by the statute of the British Parliament. The Privy Council did not like to commit itself to the position that the subordinate legislatures could delegate legislative powers, and the term "conditional legislation" was evolved to denote that what was being delegated was some minor legislative power. In line with this approach was the decision of the Federal Court of India,47 just on the eve of the inauguration of the new Constitution, that legislatures in India could not delegate legislative power and that only conditional legislation and nothing more was allowed. The assumption underlying conditional legislation is that not much discretion is conferred on the executive because the law as enacted by the legislature is more or less complete, and that the executive only brings the law as it is into operation or extends its operation. Under delegated legislation, undoubtedly, the discretion conferred on the executive is much wider, as the cases mentioned earlier would testify. The question is that when the broader power of delegation has come to be accepted, is it necessary now to keep alive the limited and narrower concept of conditional legislation? What can be upheld as conditional legislation can be easily upheld as delegated legislation. The capacity of the legislature to delegate having been recognised now, the doctrine of conditional legislation appears to have become redundant because the greater (meaning delegation) would include the lesser (conditional legislation). The doctrine of conditional legislation now is nothing more than an historical anomaly. In examining statutes from the point of view of the validity of delegation of legislative power it is more appropriate to consider whether delegation is excessive or not rather than hold it valid by calling it conditional legislation. Though the tendency of the courts increasingly is to use the term 'delegated legislation', the term 'conditional legislation', has not been discarded for good and it still pops up once in a while in judicial opinions. From time

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to time, the courts resort to the argument of conditional legislation and uphold a delegation of legislative power by characterising it as conditional legislation. For example, a Kerala Act was enacted to regulate production, supply and distribution of 'essential articles'. But the Act gave no list of such articles; it left it to the government to notify an article as an 'essential article' and bring it within the purview of the Act. The Supreme Court upheld the power as a case of 'conditional legislation'.48 It is quite obvious that the concept of conditional legislation was invoked unnecessarily as similar power has been upheld in a number of cases as delegated legislation.49 In Tulsipur,50 the Supreme Court stated that 'conditional legislation' cannot be characterised as 'subordinate legislation'. It is strange logic because there is delegation of some legislative power in conditional legislation as well. The Supreme Court rightly stated in Lachmi Narain v. Union of India,51 that no useful purpose is served by calling a power conferred by a statute as conditional legislation instead of delegated legislation. There is no difference between the two in principle, for 'conditional legislation' like delegated legislation has a "content, howsoever small and restricted, of the law-making power itself', and in neither case can the person be entrusted with the power to act beyond the limits which circumscribe the power. But the courts have not ceased making references to the doctrine of conditional legislation.52 It is suggested that the courts follow what the Supreme Court has stated in Lachmi Narain and discard the concept of conditional legislation for good. Much broader delegations having been upheld than what would pass muster as conditional legislation, it is unnecessary to keep alive a shibbeloth, reminiscent of the colonial era, which serves no practical value. The power to bring an Act into force as well as the power to grant exemption are both treated, without a doubt, as belonging to the category of conditional legislation. Very often the legislature makes a law but leaves it to the executive to prescribe a date with effect from which date the Act shall come into force. As a matter of fact, such a course has been adopted even in the case of a constitutional amendment, to wit, the Constitution (forty-fourth Amendment) Act, 1978, insofar as it pertains to amendment of Article 22 of the Constitution. The power given to the executive to bring an Act into force as also the power conferred upon the Government to exempt persons or properties from the operation of the enactment are both instances of conditional legislation and cannot be described as delegated legislation.53 Conditional legislation can be broadly classified into three categories: I.

II.

III.

When the legislature has completed its task of enacting a statute, the entire superstructure of the legislation is ready but its future applicability to a given area is left to the subjective satisfaction of the delegate, who being satisfied about the conditions indicating the ripe time for applying the machinery of the said Act to a given area, exercises that power as a delegate of the parent legislative body. When the Act itself is complete and is enacted to be uniformly applied in future to all those who are to be covered by the sweep of the Act, the legislature can be said to have completed its task. All that it leaves to the delegate is to apply the same uniformly to a given area indicated by the parent legislature itself but at an appropriate time. This would be an act of pure and simple conditional legislation depending upon the subjective satisfaction of the delegate as to when the said Act enacted and completed by the parent legislature is to be made effective. When the exercise of conditional legislation would depend upon satisfaction of the delegate on objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons who otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. In such type of cases the satisfaction of the delegate has necessarily to be based on objective consideration of the relevant data for and against the exercise of such power. May be such an exercise does not amount to any judicial or quasi-judical function, still it has to be treated to be one which requires objective consideration of relevant factual date pressed in service by one side and which could be tried to be rebutted by the other side who would be adversely affected if such exercise of power is undertaken by the delegate. In this category of cases of conditional legislation, the legislature fixes up objective conditions for the exercise of power by the delegate to be applied to past or existing facts and for deciding whether the rights or liabilities created by the Act are to be denied or extended to particular areas, persons or groups. This exercise is not left to his subjective satisfaction nor it is a mere ministerial exercise.

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Therefore, in the third category of cases even though the delegate is said to be exercising conditional legislative power, it cannot be said to be entrusted by the legislature with the function of a purely subjective nature based on its sole discretion, nor can it be said to be exercising such power for binding uniformly the whole class of persons without benefiting one class at the cost of the other class of persons who are subjected to he exercise of such exemption power. In this category of cases of exercise of power of conditional legislation, objective assessment of relevant data furnished by rival classes of persons likely to be affected by such an exercise cannot be said to be ruled out or a taboo to such an exercise of power. It is also necessary to keep in view that in such category of cases the delegate exercising power of conditional legislation does not lay down a uniform course of conduct to be followed by the entire class of persons covered by the sweep of such an exercise but lays down a favourable course of conduct for a smaller class of persons at the cost of rival large category of persons covered by the very same exercise of power. To that extent there is a mini lis between these two rival categories of persons likely to be affected by such an exercise by the delegate. Such exercise may also cover existing situations as well as future situations sought to be subjected to the exemption for the period prescribed in the order and may sometimes affect to any permissible extent even past transactions in individual cases. Such type of exercise of power cannot be said to rule out consideration of rival view point on the question of grant of exemption to an establishment or to a class of establishments from the relevant provisions of the Act. In the instant case the legislation has prescribed objective standards and has permitted the delegate to grant exemption and to withdraw the benefit of the statute which is being enjoyed by the persons and in our opinion, in such a situation, principles of fair play or consultation or natural justice cannot be totally excluded. All that is required for such an exercise is, therefore, not any personal hearing to be granted to the employees likely to be affected by the said exercise but they must be given at least an opportunity to put forward their rebuttal evidence or material against the material furnished by the claimant-establishment so that the appropriate Government can have an objective assessment of the relevant data with a view to arriving at a rational, well informed and reasonable opinion on a comprehensive consideration of pros and cons of the fact situations concerned calling for such an exercise of power on its part.54 The Industrial Disputes (Amendment) Act, 1982 left the enforcement of a certain provision therein to the discretion of the Government, without laying any objective standards which the Government failed to do for eighteen years. An affected party moved the High Court for issue of mandamus to the Government which the High Court did giving it six months time to decided as to when it would be feasible to give effect to the said provision. The Supreme Court did not agree holding that no mandamus could be issued to the executive directing it to commence the operation of the enactment as Parliament had not laid down an objective standard to guide and control its discretion. Moreover, the Government had placed a data of its efforts to enforce the said provision which showed that the Government was alive to the problem. However, the Apex Court upheld the High Court view that that such a power did not enable the Government to decide whether to bring or not to bring the said provision into force and it was obligatory on the Government to take appropriate action to bring into effect the said provision.55 In Common Cause v. Union of India,56 it was contended that in case the Government does not issue the notification as to from when a certain enactment is to come into operation, Section 5 of the General Clause Act, 1897 would apply i.e. it should come into operation from the date, it received assent of the President/Governor. It was held that the submission was misconceived as the said provision is applicable only when the Act does not express any date for its coming into operation. In the instant case, the situation was otherwise. The question whether the power of conditional legislation can be exercised with retrospective effective was considered by the Supreme Court in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti, Authorised Official and I.T.O.57 The Travancore Legislature had enacted the Travancore Taxation on Income (Investigation Commission) Act (14 of 1124). Section 1(3) "authorised the Government to bring the Act into force on such date as it may, by notification, appoint". The Government issued a notification in exercise of that power on 26.7.1949 stating that the Act is brought into force with effect from 22-7-1949. The contention before this Court was that in the absence of an express provision in Section 1(2) authorising the Government to fix the date of commencement of the Act with retrospective effect, the Government had no power to say on 26.7.1949 that the Act must be deemed to have come into operation on 22.7.1949. This contention was negatived by the Constitution Bench of this Court in the following words:

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"The reason for which the Court disfavours retroactive operation of laws is that it may prejudicially affect vested rights. No such reason is involved in this case. Section 1(3) authorised the Government to bring the Act into force on such date as it may, by notification, appoint. In exercise of the power conferred by this section the Government surely had the power to issue the notification bringing the Act into force on any date subsequent to the passing of the Act. There can, therefore, be no objection to the notification fixing the commencement of the Act on 22.7.1949 which was a date subsequent to the passing of the Act. So the Act has not been given retrospective operation, that is to say, it has not been made to commence from a date prior to the date of its passing. It is true that the date of commencement as fixed by the notification is anterior to the date of the notification but that circumstance does not attract the principle disfavouring the retroactive operation of a statute. Here there is no question of affecting vested rights. The operation of the notification itself is not retrospective. It only brings the Act into operation on and from an earlier date. In any case it was in terms authorised to issue the notification bringing the Act into force on any date subsequent to the passing of the Act and that is all that the Government did."

(1) Conditional Legislation and Delegated Legislation--Distinction In Hamdard Dawakhana (Wakf) v. Union of India,58 the Supreme Court dealt with the distinction between conditional legislation and delegated legislation. The following observations are apposite: "The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton & Co. v. U.S.,59 and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; (Queen v. Burah,60; Russell v. Queen,61; King-Emperor v. Benoari Lal Sarma,62; Sardar Inder Singh v. State of Rajasthan,63 Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation. To put it in the language of another American case: 'To assert that a law is less than a law because it is made to depend upon a future event or act is to robe the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a State of affairs not yet developed, or to things future and impossible to fully know.'

The proper distinction there pointed out was this: 'The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be subject of enquiry and determination outside the hall of legislature.' (In Lockes Appeal64; Field v. Clark65)."

In Sardar Inder Singh v. State of Rajasthan,66 the Supreme Court made the following observation: "In the present case, the preamble to the Ordinance clearly recites the state of facts which necessitated the enactment of the law in question, and Section 3 fixed the duration of the Act as two years, on an understanding of the situation as it then existed. At the same time, it conferred a power on the Rajpramukh to extend the life of the Ordinance beyond that period, if the state of affairs then should require it. When such extension is decided by the Rajpramukh and notified, the law that will operate is the law which was enacted by the legislative authority in respect of 'place, person,

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laws, powers', and it is clearly conditional and not delegated legislation as laid down in R. v. Burah,67 and must, in consequence, be held to be valid."

Referring to Sardar Inder Singh,68 and reiterating the principle laid down therein, this Court in State of T.N. v. K. Sabanayagam,69 speaking through S.B. Majumdar, J. stated: "It is thus obvious that in the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter i.e. the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation."

In the case of conditional legislation, legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e. the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does not confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation.70 8. NEED FOR THE DOCTRINE OF EXCESSIVE DELEGATION It needs to be emphasized that the doctrine of Excessive Delegation is not a mere empty formalism or a mere matter of semantics. The doctrine has an important function to serve in Administrative Law. For an Administrative Lawyer, the doctrine has a significant practical utility. In the first place, the doctrine seeks to preserve the traditional role of the elected representatives of the people to make policies rather than hand over the function to politically unresponsive civil servants. The doctrine ensures that important choices of social policy be made by the legislature which is the most responsive branch of government to popular will, and not by bureaucracy. If no standards are prescribed to limit delegation of power, bureaucracy gets a blank cheque to make any rules it likes, and, thus, the concerned administrator and not the legislature, becomes the primary legislator. The doctrine thus promotes democracy and curbs bureaucracy.71 In the second place, the doctrine ensures that the legislature takes care in framing legislation and that while delegating authority, the legislature provides the recipient of that power with an "intelligible principle" to guide the exercise of the delegated discretion. Thus, the discretion of the delegate is controlled somewhat. In the third place, the doctrine serves as a safety valve which is necessary in the context of the functioning of the modern parliamentary system in a developing country. It provides the courts with a judicial tool to control delegation of legislative power beyond a legitimate degree. The doctrine enables the courts to obligate the legislature to devote some attention to formulation and enunciation of broad policies and enacting them as laws rather than leave the entire matter to bureaucratic discretion. The doctrine thus ensures that too much legislative power ought not to be delegated to the executive lest the executive should become too powerful and despotic. In the absence of any such restriction, the executive may persuade or pressurize the legislature to hand over to it blank cheques in the matter of delegated legislation. The relative ineffectiveness of legislature as a systematic check on the government's legislative ambitions and executive power is the general phenomenon of the modern parliamentary system. Not only the function of laying down of technical details but also formulation of policy is being delegated by the legislature to the executive. In the absence of such a doctrine, the courts will be left with no mechanism to control delegation of legislative power. As the CMP Report insists, delegated legislation has become inevitable but the question of control has become crucial.72 The doctrine of excessive delegation does obligate the legislature to state some policies, principles and

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guidelines in the statutes to guide the exercise of delegated discretion to some extent. The courts can use the doctrine, if they so like, to check extreme instances of delegation. In the fourth place, statements of policies in the statutes enable 'the courts later to apply the doctrine of ultra vires to delegated legislation in a more meaningful and effective manner. The doctrine of excessive delegation strengthens the application of the doctrine of ultra vires to assess judicially the validity of the delegated legislation itself. If a statute sets up standards in sufficiently precise terms so as to ensure that the relevant authority receives clear signals as regards the policy it is expected to carry out, the courts will have a workable standard for reviewing the rules made by the concerned authority.73 An important purpose underlying the rule of laying down policy in the delegating Act is that the discretion of the delegate in making rules would thereby be circumscribed to some extent, thus reducing the chance of misuse of power. The delegate will not feel entirely free to make whatever rules he wants if policy is stated in the Act; the emerging rules can be tested in the light of the policy laid down in the statute and the rules going beyond the policy could be held ultra vires.74 Therefore, if the policy is stated in very vague and general terms, its efficacy as a restraint on the delegate would be weakened. The broader the terms of delegation, the greater is the difficulty in applying the doctrine of ultra vires and control the exercise of power. This weakens judicial control for in such a case, there is no definite standards which the courts can apply to adjudge whether delegated legislation is ultra vires or intra vires the statute.75 Therefore, in considering whether a particular case is a case of excessive delegation or not, it may be useful for the courts to examine whether in the context of the subject-matter of legislation, it was possible or reasonably practical for the legislature to provide more definite standards without undue sacrifice of administrative efficiency, and whether there exist in the law some procedural and democratic safeguards against abuse of power. While it is recognised that the doctrine of excessive delegation ought not to be applied in a pedantic manner because in the modern complex world, it may be difficult for the legislature to state policies or formulate standards very articulately, and power has to be given to the Administration in, broad terms to make rules according to the needs of the situation. But still the courts must ensure that the doctrine does not become just an incantation or an empty formality. It is necessary to have some limiting doctrine on the legislature in the matter of delegation. The doctrine should not be watered down unduly as there is great merit in the legislature laying down standards in the statute so as to control the actions of the delegate.76 The doctrine of excessive delegation is very appropriate to promote democracy in the country. As Khanna, J., delivering the majority opinion in Gwalior Rayon said: "The rule against excessive delegation of the legislative authority flows from and is a necessary postulate of the sovereignty of the people."77 The Supreme Court has itself emphasized that "delegation unlimited may invite despotism uninhibited."78 The Supreme Court has cautioned in Avinder:79 "... constitutional legitimation of unlimited power of delegation to the Executive by the Legislature may on critical occasions, be subversive of responsible government and erosive of democratic order."

The question whether any particular legislation suffers from excessive delegation has to be decided having regard to the subject-matter, the scheme, the provisions of the statute including its preamble and the facts and circumstances in the background of which the statute is enacted.80 The question whether a particular delegated legislation is in excess of the power of the supporting legislation conferred on the delegate, has to be determined with regard not only to specific provisions contained in the relevant statue conferring the power to make rules or regulations, but also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the Court to substitute its own opinion as to what principle or policy would best serve the objects and purposes of the Act; nor is it open to the Court to sit in judgment over the wisdom, the effectiveness or otherwise of the policy, so as to declare a regulation ultra vires merely on the ground that, in the view of the Court, the impugned provision will not help to carry through the object and purposes of the Act.81 The Supreme Court reiterated the legal position, well established by a long series of decisions in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth:82 "So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose

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of the statute, the Court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the statue."

Applying this test, the Supreme Court found itself unable to hold that the impugned circular No. 789 dated 30.3.1994 issued by CBDT amounts to impermissible delegation of legislative power. That the amendment made in Section 90 of the I.T. Act, 1961 was intended to empower the Government to enter into an agreement with a foreign Government, if necessary, for relief from or avoidance of double taxation, is also made clear by the Finance Minister in his Budget speech, 1953-54.83 In exercise of the power conferred by Section 28 of the Advocates Act, 1961 to the State Bar Councils to frame rules as to "Right to practise" legal profession, the Bar Council of Maharashtra and Goa framed Maharashtra and Goa Bar Council rules of which R. (1) prescribed eligibility conditions for the enrolment of an advocate. It disqualified persons to be admitted as advocates, if they were already engaged in any other profession such as medical profession in the instant case. It was contended that the said rule was vitiated on the ground of excessive delegation of legislative function. The Apex Court held that it was not vitiated on the alleged ground as it effectuated the object, the purpose and the scheme of the Act which laid down a complete Code and provided enough guidelines and hence fell within the rule-making power of the State Bar Council.84 Sections 3 and 4 of the Pondicherry Municipal Decree (Levy and Validation of Taxes, Duties, Cesses and Fees) Act, 1973 were challenged to be ultra vires on the ground of excessive delegation; but the Supreme Court observed that the question of their being ultra vires was not relevant because by virtue of the said provisions, there followed no subordinate or delegated legislation and the delgatee had to take no decision. Section 3 of the 1973 Act was enacted by the competent legislature, specifically empowering the levy of any tax, duty, cess or fee which the legislature of a Union Territory had the power to levy and Section 4 validates the taxes already levied, assessed and collected.85 In this connection, it may be worthwhile to mention that the doctrine of excessive delegation can play a very useful role in curbing executive power during an emergency under Art. 352 of the Constitution when fundamental rights under 14 and 19 are suspended. 86 The doctrine of excessive delegation arose in the U.S.A., and became moribund in course of time. But, there the dilution of the delegation doctrine has been compensated by two significant developments: (1) development of procedural safeguards in the making of delegated legislation. The Federal A.P.A. imposes a number of safeguards, especially the consultative procedure called "notice and comment". This leads to some democratisation of rule-making;87 (2) Increasing legislative control over delegated legislation. Many statutes give "legislative veto" to Congress which enables one or both Houses of Congress to disapprove delegated legislation by passage of an annulling resolution.88 Efforts are being made to enact a law providing for general legislative review of delegated legislation and, according to Schwartz, "this may help restore the balance which has been tilted unduly by the judicial reluctance... to exercise control over the delegation of power themselves".89 In the U.S.A., because of the governmental system based on Separation of Powers, Congress is not totally under the thumb of the Executive.90 But, in India, not much development has taken place in the area of procedures to make rules; consultation is not yet a normal procedure; nor does Parliament exercise any effective control over delegated legislation,91 and the party system makes parliamentary control over the executive rather nominal. Even judicial control is minimal as courts tend to interpret the delegating provision broadly and rarely hold the rules ultra vires.92 Hence the great significance of the doctrine of excessive delegation in India applied meaningfully. The doctrine of excessive delegation should not only be supported by the courts but even be applied in a vigorous manner so as to win from the legislature substantive and procedural safeguards in the area of delegated legislation. The doctrine of excessive delegation is again showing signs of resurrection in the U.S.A. It is being emphasized by scholars that there must be some limit on the extent to which Congress can transfer its own powers to other bodies without guidance to how these powers are to be exercised.93 Even the U.S. Supreme Court Judges have now emphasized from time to time

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that delegation of legislative power must be accompanied by discernible standards. As Justice Rehnquist of the U.S. Supreme Court has observed very forcefully:94 "We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority. . . Indeed, a number of observers have suggested that the Court should once more take upsits burden of ensuring that Congress does not necessarily delegate important choice of social policy to politically unresponsive administrators".

It may be of interest to note that while the U.S. Supreme Court has diluted the non-delegation doctrine over time, the State Courts "still adopt a strict attitude towards delegations." While the U.S. Supreme Court has upheld broad delegations since 1935, there are State cases after 1935 which have struck down delegations on the ground that the enabling legislation contains no adequate standards.95 In Ajoy Kumar Banerjee v. U.O.I.,96 the Supreme Court held that the Legislature must retain in its own hand the essential legislative function which consists in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law with sufficient clearness, and what can be delegated is the task of subordinate legislation which by very nature is ancillary to the statute which delegates the power to make it effective. The Courts cannot and do not interfere on the discretion that undoubtedly rests with the Legislature itself in determining the extent of the delegated power in a particular case. The Supreme Court97 has held: "So far as the delegated legislation is concerned, the case-law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate uncanaslised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law-making to Parliament and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be filled in by the delgatee. Thus, the question is whether any particular legislation suffers from excessive delegation and in ascertaining the same, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statue, a legislative policy and guidelines for its execution are brought out, the statute, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the Court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive."

The proviso to Rule 10(3) of the M.P. Non-Gazetted Class III Education Service (Non-Collegiate Service) Recruitment and Promotion Rules, 1973 (as inserted vide amendment dated 10.5.1993), gives to the State Govt., in consultation with the General Administration Department, power to prescribe separate criteria and procedure for selection of candidates in specific circumstances. It was contended that it confers unguided and excessive delegation of powers on the State Govt. The Supreme Court held that the question of excessive delegation does not arise because the rule-making authority has given to itself the power to frame the special rules prescribing criteria and procedure in specific circumstances.1 In S. Samuel, M.D., Harrisons Malayalam v. Union of India,2 the Supreme Court held that the Central Government can delegate any of its statutory powers to the State Governments, if permitted by law. Three things should be clearly understood: (i) Since in practice Government demands a great deal of delegation, this has to be authorised by statute, either expressly or impliedly. (ii) A statutory power to delegate functions, even if expressed in wide general terms, will not necessarily extend to everything. (iii) Implied power to delegate is not commonly found in peacetime legislation. The instant case is concerned with delegation of power by the Central Government under Section 5 of the Essential Commodities Act, 1955 to the State Government as to which the Apex Court held that it could be in relation to "such matter" as may be specified in the direction. If there is abdication of legislative power or there is excessive delegation or if there is a total surrender or

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transfer by the legislature of its legislative functions to another body then that is not permissible. There is, however, no abdication, surrender of legislative functions or excessive delegation so long as the legislature has expressed its will on a particular subject-matter, indicated its policy and left the effectuation of the policy to subordinate or subsidiary or ancillary legislation, provided the legislature has retained the control in its hand with reference to it so that it can act as a check or a standard and prevent or undo the mischief by subordinate legislation when it chooses to or thinks fit.3 The Supreme Court declared that the Section 116(3) of the Delhi Municipal Corporation Act 66 of 1957 is invalid as it delegates unguided and uncanalised legislative powers to the Commissioner to declare any plant or machinery as part of land or building for the purpose of determination of the rateable value thereof.4

1 CARR, Concerning English Administrative Law (1941); ALLEN, Law and Orders; PEARCE, Delegated Legislation, (1977). 2 Cited by the Supreme Court in Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], para 21 : AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759]. 3 WADE & FORSYTH: Administrative Law, 8th Edn., 2000, at p. 839. 4 Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8) : AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 5 (1890) 25 QBD 391: 63 LT 348. 6 As cited in Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8) : AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 7 Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8) : AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 8 Battelley v. Finsbury Borough Council, 1958 LGR 165 as cited in Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8): AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 9 See, Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1918: 1972 (2) LLJ 259: (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]; contra, K.I. Shephard v. Union of India, AIR 1989 SC 568 [LNIND 1988 SC 557] [LNIND 1988 SC 557] [LNIND 1988 SC 557]: (1989) 1 SCC 321: AIR 1988 SC 686 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]: 1988 (1) LLJ 162: (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]. 10 AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79], 1337: (1975) 1 SCC 421 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79]. 11 See, Infra, under Public Enterprises 12 See, Infra, under Public Enterprises. For instance, the power to make bye-laws by the concerned statutory body is to be found in the following statutes: The Coir Industry Act, 1953; The Tea Act, 1953. 13 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 331 (para 10): AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]. 14 Associated Cement Companies Ltd. v. State of M.P., (2005) 5 SCC 347 [LNIND 2005 SC 336] [LNIND 2005 SC 336] [LNIND 2005 SC 336], 356 (para 14): AIR 2005 SC 2461 [LNIND 2005 SC 336] [LNIND 2005 SC 336] [LNIND 2005 SC 336]. 15 See, M.P. JAIN, Administrative Process under the Essential Commodities Act, 1955 (1964). For extracts from the book, see, JAIN, Cases, Chapter I. 16 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 331 (para 10): AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]. 17 (2004) 1 SCC 86, 98-99 (paras 29, 30 and 31): AIR 2004 SC 613, relying on State of A.P. v. K. Purushotham Reddy, (2003) 9 SCC 564 [LNIND 2003 SC 310] [LNIND 2003 SC 310] [LNIND 2003 SC 310]: AIR 2003 SC 1956 [LNIND 2003 SC 310] [LNIND 2003 SC 310] [LNIND 2003 SC 310]and Preeti Srivastava (Dr.) v. State of M.P., (1999) 7 SCC 120 [LNIND 1999 SC 665] [LNIND 1999 SC 665] [LNIND 1999 SC 665]: AIR 1999 SC 2894 [LNIND 1999 SC 665] [LNIND 1999 SC 665] [LNIND

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1999 SC 665]. 18 Mewa Singh v. Shiromani Gurdwara Prabandhak Committee, (1999) 2 SCC 60, 66 (para 7): AIR 1999 SC 688. 19 G.B. Pant University of Agriculture & Technology v. State of U.P., (2000) 7 SCC 109 [LNIND 2000 SC 1098] [LNIND 2000 SC 1098] [LNIND 2000 SC 1098], 116 (para 9): AIR 2000 SC 2695 [LNIND 2000 SC 1098] [LNIND 2000 SC 1098] [LNIND 2000 SC 1098]. 20 Ganga Retreat & Towers Ltd. State of Rajasthan, (2003) 12 SCC 91 [LNIND 2003 SC 1147] [LNIND 2003 SC 1147] [LNIND 2003 SC 1147], 110 (para 31). 21 Ajay Kumar Bhuyan v. State of Orissa, (2003) 1 SCC 707 [LNIND 2002 SC 764] [LNIND 2002 SC 764] [LNIND 2002 SC 764], 717-18 (para 11). 22 Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91 [LNIND 2003 SC 1147] [LNIND 2003 SC 1147] [LNIND 2003 SC 1147], 118 (para 49). 23 Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], 524, para 22: AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759]. 24 DE SMITH, Constitutional and Adm. Law, 349 (1985). 25 Consumer Action Group v. State of T.N., (2000) 7 SCC 425 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130], para 18: AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130]. 26 Supra, Chapter I. 27 On the circumstances leading to the appointment of the CMP, see, supra, Chapter III. 28 CMP Report, 23. For excerpts from this Report, see, JAIN, Cases, Chapter III. 29 CMP Report, 5. 30 Ajay Kumar Bannerjee v. Union of India, AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: (1984) 3 SCC 127. 31 On Consultation, see, infra, Chapter VI. 32 WADE and PHILLIPS, Constitutional Law, 608 (1965). 33 CMP Report, 52. 34 Committee on Ministers' Powers Report, at 4, 5, 23, 51, 52 (1932). 35 Committee on Ministers' Power Report, 5 (1932). 36 Committee on Ministers Power Report, at 51 (1932). Also see, JAFFE, An Essay on Delegation of Legislative Power, 47 Col. L.R., 361 (1947). 37 Tata Iron and Steel Co. v. Workmen, AIR 1972 SC 1917 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300], 1922: 1972 (2) LLJ 259 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]: (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]. 38 See, Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340; JAIN, Cases, 77, 115. For reference to the circumstances leading to the growth of delegated legislation in India. See, JAIN, Cases, Chapter III. 39 Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], 524, para 23: AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759]. 40 Lord HEWART, The New Despotism (1929). 41 Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], para 8: AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], relying on Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edn., 1999, PP. 689-90. 42 (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], para 14: AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344]. 43 Infra, Chapter V. under Judicial Control of Delegated Legislation.

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44 CMP Report, 21. 45 WADE, The Basis of Legal Sovereignty, (1955) Camp. L.J. 172. 46 CMP Report, 62. 47 See under heading: Separation of Powers, Chapter II . 48 HORSE P. EHMKE, Delegate Potestas Non Potest Delegari--A maxim of American Constitutional Law, 47 Cornell L.Q., 50 (1961); JAFFE, An Essay on Delegation of Legislative Power, 47 Col. L.R., 359 (1947). Also see, infra, Chapters VII and XXI, under sub-delegation. 49 Panama Refining Co. v. Ryan, 293 US 388, 434 (1935); JAIN, Cases, 30. This case is known popularly as the Hot Oil case. 50 SCHWARTZ and WADE, Legal Control of Government, 85-6; SCHWARTZ, American Adm. Law--A Synoptic Survey, (1979) 14 Israel L.R., 413-15. Also see, JAIN, Cases, Chapter III, 30. 51 293 US 388, 434 (1935). For the text of the case, see, JAIN, Cases, Chapter III. 52 321 U.S. 414 (1944). See, JAIN, Cases, 35, 352. 53 Besides Panama, two other cases are: Schechter v. U.S., 295 U.S. 495 (1935); Carter v. Carter Coal Co., 298 U.S. 238 (1936). 54 Federal Energy Adm. v. Algonquin, 426 U.S. 458, 599 (1976). Also, Justice REHNQUIST in American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490,543 (1981). 55 DAVIS, Administrative Law, 54 (1951). Also JAFFE, An Essay on Delegation of Legislative Power, 47 Col. L.R., 359 (1947); WADE, Anglo-American Adm. Law: Some Reflections, 81 LQR 357, 372 (1965); Lichter v. U.S., 334 U.S. 742 (1948); SCHWARTZ. American Adm. Law A synoplic Survey, (1979) 14 Israel L.R. 413-15. 56 J. SKELLY WRIGHT, Beyond Discretionary Justice, 81 Yale L.J., 575 (1972); U.S. v. Robel, 389. U.S. 258 (1967); Justice HARLAN (joined by Justices DOUGLAS and STEWART) in Arizona v. California, 373 U.S. 546 (1963). 57 National Cable Television Assn., v. U.S., 415 U.S. 336 (1974). 58 SCHWARTZ, Administrative Law-A Casebook, 117 (1988). 59 AIR 1949 FC 175. 60 Rajnarain v. Chairman, Patna Administration Committee, AIR 1954 SC 567. Also see, JAIN, Cases, Chapter III, 153. 61 AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. For text of the case, see, JAIN, Chapter III, 39. 62 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], as cited in M.P. High Court Bar Association v. Union of India, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 784-85 (para 39 to 43). 63 Delhi Laws Act, 1912, In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 791-92: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]. 64 Delhi Laws Act, 1912, In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 797-78: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], per KANIA, C.J. 65 Delhi Laws Act, 1912 In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 828-29: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]. 66 Delhi Laws Act, 1912 In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 830-31: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], per FAZAL ALI, J. 67 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]. 68 M.P. High Court Bar Association v. Union of India, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 789-90 (paras 50 and 51). 69 Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. See, JAIN, Cases, Chapter III, 48. 70 Gwalior Rayon Co. v. Asstt. Commr. Of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98, at 1678.

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71 Gwalior Rayon Co. v. Asstt. Commr. Of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98, at 1667. 72 Although MATHEW, J.'s view was rejected decisively by the majority in Gwalior Rayon, MATHEW, J., again took opportunity to reiterate his view while delivering the opinion of a three Judge Bench in N.K Papiah v. Excise Commissioner, AIR 1975 SC 1007 [LNIND 1975 SC 607] [LNIND 1975 SC 607] [LNIND 1975 SC 607]: (1975) 1 SCC 492, and validated a very broad delegation of taxing power by applying the theory that since the legislature retained the power to repeal the provision delegating the power, there was no abdication of legislative power. No reference was made to Gwalior Rayon in Papiah. The authority of Papiah is extremely doubtful especially when the Gwalior Rayon view has been reiterated in numerous later cases. For comments on these cases see, Administrative Law, X ASIL, 507-10 (1974) and XI ASIL, 458-60 (1975). 73 AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313], 1050: (1976) 1 SCC 466 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]. For comments see XII ASIL 475 (1976). 74 Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 351: (1980) 1 SCC 340. 75 Registrar, Co-operative Societies v. K. Kunjabmu, 1980 SC 350: (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472], at 352. 76 (2002) 1 SCC 589 [LNIND 2001 SC 2784] [LNIND 2001 SC 2784] [LNIND 2001 SC 2784], 594, 599 (paras 3 and 9): AIR 2002 SC 302 [LNIND 2001 SC 2784] [LNIND 2001 SC 2784] [LNIND 2001 SC 2784]. 77 Ajay Kumar Banerjee v. Union of India, AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: 1984 (1) LLJ 368: (1984) 3 SCC 127 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]; JAIN, Cases, 191. Also, Ramesh Birch v. Union of India, AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430. For text of the case, see, JAIN Cases, Chapter III, 72. 78 Harakchand R. Banthia v. Union of India, AIR 1970 SC 1453 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199]. See, JAIN, Cases, Chapter III, 97. 79 B.R. Enterprises v. State of U.P., (1999) 9 SCC 700 [LNIND 1999 SC 517] [LNIND 1999 SC 517] [LNIND 1999 SC 517], para 81: AIR 1999 SC 1867 [LNIND 1999 SC 517] [LNIND 1999 SC 517] [LNIND 1999 SC 517]. 80 (1997) 2 SCC 320, paras 12 to 14. 81 See, Bhatnagars & Co. v. Union of India, AIR 1957 SC 478 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]: 1957 SCR 701. 82 See, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792; Garewal v. State of Punjab, AIR 1961 SC 4: (1961) 1 SCR 341. 83 Gwalior Rayon v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. 84 Registrar, Co-op. Soc. v. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340. 85 AIR 1983 SC 512; JAIN, Cases, 216. 86 The Court invoked D.S. Garewal v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792, JAIN, Cases, 61, in support of this view. Garewal should be regarded as an exception rather than the rule. 87 AIR 1985 SC 512. See, JAIN, Cases, Chapter III, 69. 88 Infra, Chapter VI. 89 Infra, Chapter V. Also see, LE. Newspapers case, JAIN, Cases, 211. 90 (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], paras 44, 45 and 48: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 91 (2006) 7 SCC 188 [LNIND 2006 SC 605] [LNIND 2006 SC 605] [LNIND 2006 SC 605], 200 (para 13), relying on CBI v. State of Rajasthan, (1996) 9 SCC 735 [LNIND 1996 SC 1008] [LNIND 1996 SC 1008] [LNIND 1996 SC 1008] and Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762 [LNIND 1961 SC 196] [LNIND 1961 SC 196] [LNIND 1961 SC 196]: (1962) 2 SCR 195: (1961) 2 Crlj 828. 92 Ramesh Birch v. Union of India, AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430. Also see, A. MOHANDOSS, Towards and Away from Delhi Laws Act Case, 26 J.I.L.I., 100 (1984); K.C. JOSHI, Questions of Legislative Policy in Delegated Legislation; Recent Cases, 18 J.I.L.I., 509 (1976). Also see, infra, this Chapter.

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93 State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681], 92 (paras 19 and 20): AIR 2005 SC 3401 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681]. 94 Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], paras 24 and 24: AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], relying on Vasantlal Maganbhai Sanjanwala v. State of Bombay, AIR 1961 SC 4: (1961) 2 SCR 341; Municipal Corpn. Of Delhi v. Birla Cotton, Spg. And Wvg. Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251; In re Delhi Laws Act, 1912, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]and Avinder Singh v. State of Punjab, (1979) 1 SCC 137 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: AIR 1979 SC 312. 95 M.P. High Court Bar Association v. Union of India, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 784 (para 38). 96 Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 28 (para 31): AIR 2004 SC 1107 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853]. 97 Process Technicians & Analyst's Union v. U.O.I., (1997) 10 SCC 142: AIR 1997 SC 1288. 98 Quarry Owners' Association v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], paras 36 and 38: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]; following Avinder Singh v. State of Punjab, (1979) 1 SCC 137 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: AIR 1979 SC 321 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]; Municipal Corpn. of India v. Birla Cotton, Spg. and Wvg. Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251. 1 Quarry Owners' Assn. v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 42: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], following Bhatnagars & Co. Ltd. v. U.O.I., (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 42: 1957 SCR 701 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]; Municipal Corpn. of Delhi v. Birla Cotton Spg. and Wvg. Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251 and D.K. Trivedi & Sons v. State of Gujarat, 1986 Supp SCC 20. 2 Kiran Gupta v. State of U.P., (2000) 7 SCC 719 [LNIND 2000 SC 1315] [LNIND 2000 SC 1315] [LNIND 2000 SC 1315], para 12, following Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947, Re, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747, 982. See also People's Union for Civil Liberties v. U.O.I., (2004) 2 SCC 476, 493-94 (paras 37-42): AIR 2004 SC 1462; Andhra Bank v. B. Satyanarayana, (2004) 2 SC 657, 660-661 (paras 9-13): AIR 2004 SC 4007 [LNIND 2004 SC 203] [LNIND 2004 SC 203] [LNIND 2004 SC 203]; State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681], 95 (para 30 and 32). 3 (1998) 4 SCC 470 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405], 485 (para 27): AIR 1998 SC 1715 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405]. 4 Kiran Gupta v. State of U.P., (2000) 7 SCC 719 [LNIND 2000 SC 1315] [LNIND 2000 SC 1315] [LNIND 2000 SC 1315], para 14, following Krishna Chandra Sahu v. State of Orissa, (1995) 6 SCC 1 [LNIND 1995 SC 889] [LNIND 1995 SC 889] [LNIND 1995 SC 889]: AIR 1996 SC 352 [LNIND 1995 SC 889] [LNIND 1995 SC 889] [LNIND 1995 SC 889]. 5 Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511], 140 (para 40): AIR 1998 SC 431 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511]. 6 Sushil Flour Dal & Oil Mills v. Chief Commissioner, (2000) 10 SCC 652. 7 A. Nadamuni v. Prohibition & Excise Commissioner, (1997) 2 SCC 695 [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79], 696 (para 3): AIR 1997 SC 1021 [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79]. 8 M.C. Mehta v. U.O.I, 1997 (7) Scale 114: JT 1997 (9) SC 213 [LNIND 1997 SC 1461] [LNIND 1997 SC 1461] [LNIND 1997 SC 1461]. 9 Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board, (1998) 4 SCC 470 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405], 484 (para 20) AIR 1998 SC 1715 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405]. 10 Jagjit Cotton Textile Mills v. Chief Commercial Superintendent, N.R., (1998) 5 SCC 126 [LNIND 1998 SC 467] [LNIND 1998 SC 467] [LNIND 1998 SC 467], 141 (paras 24 to 26 and 38): AIR 1998 SC 1959 [LNIND 1998 SC 467] [LNIND 1998 SC 467] [LNIND 1998 SC 467]. See also State of Karnataka v. B. Suvarna Malini, (2001) 1 SCC 728 [LNIND 2001 SC 39] [LNIND 2001 SC 39] [LNIND 2001 SC 39], 732 (para 4): AIR 2001 SC 606 [LNIND 2001 SC 39] [LNIND 2001 SC 39] [LNIND 2001 SC 39]. 11 Medical Council of India v. State of Karnataka, (1998) 6 SCC 131 [LNIND 1998 SC 609] [LNIND 1998 SC 609] [LNIND 1998 SC 609], 154 (para 24): AIR 1998 SC 2423 [LNIND 1998 SC 609] [LNIND 1998 SC 609] [LNIND 1998 SC 609].

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12 M.C. Mehta v. Union of India, (2004) 12 SCC 118 [LNIND 2004 SC 367] [LNIND 2004 SC 367] [LNIND 2004 SC 367], 160-61 (para 37): AIR 2004 SC 4016 [LNIND 2004 SC 367] [LNIND 2004 SC 367] [LNIND 2004 SC 367]. 13 Andhra Bank v. B. Satyanarayana, (2004) 2 SCC 657 [LNIND 2004 SC 203] [LNIND 2004 SC 203] [LNIND 2004 SC 203], 661 (para 10): AIR 2004 SC 4007 [LNIND 2004 SC 203] [LNIND 2004 SC 203] [LNIND 2004 SC 203]. 14 National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 [LNIND 2004 SC 20] [LNIND 2004 SC 20] [LNIND 2004 SC 20], 338 (para 94): AIR 2004 SC 1531 [LNIND 2004 SC 20] [LNIND 2004 SC 20] [LNIND 2004 SC 20]. 15 R.B.I. v. Cecil Dennis Solomon, (2004) 9 SCC 461 [LNIND 2003 SC 1050] [LNIND 2003 SC 1050] [LNIND 2003 SC 1050], 467 (para 8): AIR 2004 SC 3196 [LNIND 2003 SC 1050] [LNIND 2003 SC 1050] [LNIND 2003 SC 1050]. 16 Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 [LNIND 2005 SC 100] [LNIND 2005 SC 100] [LNIND 2005 SC 100], 589-91 (paras 107 and 112): AIR 2005 SC 2731 [LNIND 2005 SC 100] [LNIND 2005 SC 100] [LNIND 2005 SC 100]. 17 R.K. Goyal (Dr.) v. State of U.P., (1996) 11 SCC 658 [LNIND 1996 SC 2062] [LNIND 1996 SC 2062] [LNIND 1996 SC 2062], 662 (para 8): AIR 1997 SC 1567 [LNIND 1996 SC 2062] [LNIND 1996 SC 2062] [LNIND 1996 SC 2062], relying on Ganga Prasad Verma (Dr.) v. State of Bihar, 1995 Supp (1) SCC 192: 1995 SCC (L&S) 383: (1995) 29 ATC 154: Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401: AIR 1998 SC 2111 [LNIND 1998 SC 554] [LNIND 1998 SC 554] [LNIND 1998 SC 554]; Govt. of A.P. v. R. Murali Babu Rao, (1988) 2 SCC 386 [LNIND 1988 SC 160] [LNIND 1988 SC 160] [LNIND 1988 SC 160]: 1988 SCC (L&S) 610 (1988) 7 ATC 316: (1988) 3 SCR 173 [LNIND 1988 SC 160] [LNIND 1988 SC 160] [LNIND 1988 SC 160]. 18 Prem Kumar Verma v. Union of India, (1998) 5 SCC 457 [LNIND 1998 SC 438] [LNIND 1998 SC 438] [LNIND 1998 SC 438], 460 (para 5): AIR 1998 SC 2854 [LNIND 1998 SC 438] [LNIND 1998 SC 438] [LNIND 1998 SC 438]. 19 (2000) 4 SCC 640 [LNIND 2000 SC 481] [LNIND 2000 SC 481] [LNIND 2000 SC 481]: AIR 2000 SC 1296 [LNIND 2000 SC 481] [LNIND 2000 SC 481] [LNIND 2000 SC 481]. See also Commissioner of Central Excise v. Ashok A.R.C., (2005) 9 SCC 223, 225 (para 7). 20 Haryana State Co-operative Land Development Bank Ltd. v. Haryana State Co-operative Land Development Banks Employees' Union, (2004) 1 SCC 574 [LNIND 2003 SC 1127] [LNIND 2003 SC 1127] [LNIND 2003 SC 1127], 580 (paras 12 and 13). 21 State Authority of India Ltd. v. State of MP., (1999) 4 SCC 76 [LNIND 1999 SC 343] [LNIND 1999 SC 343] [LNIND 1999 SC 343], 84 (paras 23 and 24): AIR 1999 SC 1630 [LNIND 1999 SC 343] [LNIND 1999 SC 343] [LNIND 1999 SC 343]. 22 (1999) 4 SCC 720 [LNIND 1999 SC 480] [LNIND 1999 SC 480] [LNIND 1999 SC 480], 723 (para 14): AIR 1999 SC 1937 [LNIND 1999 SC 480] [LNIND 1999 SC 480] [LNIND 1999 SC 480]. 23 Kishan Prakash Sharma v. Union of India, (2001) 5 SCC 212, 232 (para 28): AIR 2001 SC 1493. 24 OCL India Ltd. v. State of Orissa, (2003) 2 SCC 101 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818], 106 (paras 13 and 14): AIR 2003 SC 2148 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818]. 25 P. Srinivas v. M. Radhakrishna Murthy, (2004) 2 SCC 459 [LNIND 2004 SC 136] [LNIND 2004 SC 136] [LNIND 2004 SC 136], 462 (para 10). 26 Gopalji Khanna v. Allahabad Bank, (1996) 3 SCC 538 [LNIND 1996 SC 2642] [LNIND 1996 SC 2642] [LNIND 1996 SC 2642], 542 (para 7): AIR 1996 SC 1729 [LNIND 1996 SC 2642] [LNIND 1996 SC 2642] [LNIND 1996 SC 2642]. 27 High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 [LNIND 2003 SC 312] [LNIND 2003 SC 312] [LNIND 2003 SC 312], 732 (para 27): AIR 2003 SC 1201 [LNIND 2003 SC 312] [LNIND 2003 SC 312] [LNIND 2003 SC 312], relied on Vimal Kumari v. State of Haryana, (1998) 4 SCC 114 [LNIND 1998 SC 140] [LNIND 1998 SC 140] [LNIND 1998 SC 140]. 28 (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 632 (para 37), relying on Union of India v. V. Ramakrishnan, (2005) 8 SCC 394 [LNIND 2005 SC 809] [LNIND 2005 SC 809] [LNIND 2005 SC 809] (paras 23 and 24): AIR 2005 SC 4295 [LNIND 2005 SC 809] [LNIND 2005 SC 809] [LNIND 2005 SC 809]. 29 ONGC Ltd. v. G.S. Chugani, AIR 1999 SC 1784: (1999) 1 SCC 194. 30 Chief Forest Conservator (Wildlife) v. Nisar Khan, (2003) 4 SCC 595 [LNIND 2003 SC 219] [LNIND 2003 SC 219] [LNIND 2003 SC 219], 599 (para 19): AIR 2003 SC 1867 [LNIND 2003 SC 219] [LNIND 2003 SC 219] [LNIND 2003 SC 219]. 31 R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, 52 (para 50). 32 AIR 1990 AP 20 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333], 33 (para 21): (1989) 3 An LT 66 (FB), as cited in R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, 52 (para 50): AIR 2004 SC 692. 33 Vidadala Harinadhababu v. N.T. Ramarao, AIR 1990 AP 20 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333], 51 (para 50).

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34 R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, 52-53 (para 50): AIR 2004 SC 692. 35 Behari Kunj Sahkari Awas Samiti v. State of U.P, (1997) 7 SCC 37 [LNIND 1997 SC 1090] [LNIND 1997 SC 1090] [LNIND 1997 SC 1090], 40 (paras 7 and 8): AIR 1997 SC 3123 [LNIND 1997 SC 1090] [LNIND 1997 SC 1090] [LNIND 1997 SC 1090], following Roop Chand v. State of Punjab, AIR 1963 SC 1503 [LNIND 1962 SC 328] [LNIND 1962 SC 328] [LNIND 1962 SC 328]: 1963 Supp (1) SCR 539. 36 S. Said-ud-din v. Court of Welfare Commissioner Bhopal Gas Victims, (1997) 11 SCC 460 (para 2). 37 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 172 (para 23): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], relying on National Sewing Thread Co.Ltd. v. James Chadwick & Bros. Ltd., AIR 1953 SC 357 [LNIND 1953 SC 57] [LNIND 1953 SC 57] [LNIND 1953 SC 57]: 1953 SCR 1028. 38 State of Orissa v. Commmissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 172 (para 22): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. See also OCL India Ltd. v. State of Orissa, (2003) 2 SCC 101 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818]: AIR 2003 SC 2148 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818]. 39 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 172 (para 24): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], partly approving to this extent Ramakanta v. Gaji Pratap Singh, (1974) 40 Cut LT 917. 40 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 174-75 (para 27): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. 41 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 174 (para 28): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], relying on Roop Chand v. State of Punjab, AIR 1963 SC 1503 [LNIND 1962 SC 328] [LNIND 1962 SC 328] [LNIND 1962 SC 328]: 1963 Supp (1) SCR 539; Bechari Kunj Sahakari Awas Samiti v. State of U.P., (1997) 7 ACC 37and Maharajah Moheshur Singh v. Bengal Govt., (1857-60) 7 MIA 283: 3 WR 45 (PC). 42 State of Orissa v. Commissioner of land Records and settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 17475 (para 31): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. 43 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 175 (para 34): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. 44 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98,61-62. 45 The Supreme Court has itself projected this idea in some cases. For example, in Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1918, 1922: (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]: 1972 (2) LLJ 259 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300], the Court said that the legislature "can only utilise other bodies or authorities for the purpose of working out the details within the essential principles laid down by it." In fact, at another place, the details were qualified as "subsidiary and ancillary details". 46 AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: 1954 Crlj 1322: 1955 (1) SCR 380 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]; See, JAIN, Cases, Chapter III, 56. 47 Harshankar Bagla v. State of M.P., AIR 1954 SC 645: 1954 Crlj 1665, at 468. 48 Harshankar Bagla v. State of M.P., AIR 1954 SC 645: 1954 Crlj 1665, at 469. 49 See, C. Lingam v. Union of India, AIR 1974 SC 474, where S. 3(2)(d) of the Essential Commodities Act, 1955, has been upheld against the challenge of excessive delegation. 50 M.P. JAIN, Administrative Process under the Essential Commodities Act, 1955. For some excerpts from this study, see, JAIN, Casebook, Chapter I. 51 AIR 1957 SC 478 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]: 1957 SCR 701. Also see, JAIN, Cases, Chapter III, 59. 52 AIR 1964 SC 381 [LNIND 1952 SC 126] [LNIND 1952 SC 126] [LNIND 1952 SC 126]: 1964 (1) Crlj 269: 1964 (4) SCR 797 [LNIND 1963 SC 234] [LNIND 1963 SC 234] [LNIND 1963 SC 234]. 53 Garewal D.S. v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792; JAIN, Cases, 61.

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54 A few other cases on the point are: Izhar Ahmad v. Union of India, AIR 1962 SC 1052 [LNIND 1962 SC 74] [LNIND 1962 SC 74] [LNIND 1962 SC 74]: 1962 (2) Crlj 215: 1962 Supp (3) SCR 235; Vasanlal Maganbhai Sanjanwala v. Bombay, AIR 1961 SC 4, JAIN, Cases, 64; Raghubar Dayal v. Union of India, AIR 1962 SC 263 [LNIND 1961 SC 296] [LNIND 1961 SC 296] [LNIND 1961 SC 296]: 1962 (3) SCR 547; State of Nagaland v. Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] [LNIND 1966 SC 77] [LNIND 1966 SC 77]: 1967 Crlj 265. 55 A.V. Nachane v. Union of India, AIR 1982 SC 1126 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]: 1982 (2) LLJ 110: (1982) 1 SCC 205 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]. 56 AIR 1962 SC 1052 [LNIND 1962 SC 74] [LNIND 1962 SC 74] [LNIND 1962 SC 74]: 1962 (2) Crlj 215. Harshankar Bagla v. State of M.P., AIR 1954 SC 645: 1954 Crlj 1665. Also see, D.K. Trivedi & Sons v. State of Gujarat, AIR 1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50]: 1986 Supp SCC 20; infra, Chapter VI; JAIN, Cases, 241. 57 Also see, infra, Chapter V. 58 CMP Report, 122. For extracts from this report, see, JAIN, Cases, Chapter III. 59 For amendment of schedule see, Mohmedalli v. Union of India, AIR 1964 SC 980 [LNIND 1962 SC 361] [LNIND 1962 SC 361] [LNIND 1962 SC 361]: 1963 Supp (1) SCR 993. 60 AIR 1964 SC 980 [LNIND 1962 SC 361] [LNIND 1962 SC 361] [LNIND 1962 SC 361]: 1963 (1) LLJ 536: 1963 Supp (1) SCR 993. 61 Such provisions have been upheld in a number of cases. See, for example, Kerala State Electricity Board v. Indian Aluminium Co. Ltd., AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]: (1976) 1 SCC 466; Saraswat Co-op. Bank Ltd. v. P.G. Koranne, AIR 1983 Bom. 317. 62 AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735: 1960 (2) SCR 671 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]. Also see, JAIN, Cases, Chapter III; JAIN, Cases, 108. 63 V. Sudeer v. Bar Council of India, (1999) 3 SCC 176 [LNIND 1999 SC 246] [LNIND 1999 SC 246] [LNIND 1999 SC 246], 198 (para 16): AIR 1999 SC 1167 [LNIND 1999 SC 1609] [LNIND 1999 SC 1609] [LNIND 1999 SC 1609]. 64 For discussion on Art. 14, see, infra, Chapters V and XVIII. 65 AIR 1967 SC 691 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]: 1966 (2) LLJ 546: 1967 (1) SCR 15 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]. Also see, JAIN, Chapter III; JAIN, Cases, 118. 66 AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340. 67 AIR 1986 SC 1541 [LNIND 1986 SC 132] [LNIND 1986 SC 132] [LNIND 1986 SC 132], 1543: (1986) 3 SCC 398 [LNIND 1986 SC 132] [LNIND 1986 SC 132] [LNIND 1986 SC 132]. Also see, State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761: (1988) 1 SCC 59; JAIN Cases, Chapter XVI. 68 State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761: (1988) 1 SCC 59. P.J. Irani v. State of Madras, AIR 1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192]: 1962 (2) SCR 169; also see, infra, under Discretionary Power, Chapters XV and XVI. 69 S. Kandaswamy Chettiar v. State of Tamil Nadu, AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: (1985) 1 SCC 290. Also see, JAIN, Cases, Chapters III and XV. 70 Supra, Chapter III. 71 See, for example, S. Kanaswamy Chettiar v. State of Tamil Nadu, AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: (1985) 1 SCC 290. AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: (1985) 1 SCC 290; also, Punjab Tin Supply v. Central Govt., AIR 1984 SC 87 [LNIND 1983 SC 300] [LNIND 1983 SC 300] [LNIND 1983 SC 300]: (1984) 1 SCC 206; State of West Bengal v. Rash Behari Sarkar, (1993) 1 SCJ 479: JT 1993 (1) SC 1. 72 Infra, Chapters V and XVIII. 73 CMP Report supra. 74 In re Delhi Laws Act, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747; Lachmi Narain v. Union of India, AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953. Rajnarain v. Chairman, PA. Committee, AIR 1954 SC 567: 1955 (1) SCR 290; Baban Naik v. Union of India, AIR 1979 Goa 1. 75 State of A.P. v. Vatsavji Kumara Venkata Krishna Verma, (1999) 2 SCC 297 [LNIND 1999 SC 9] [LNIND 1999 SC 9] [LNIND 1999 SC 9], 304 (para 14): AIR 1999 SC 745 [LNIND 1999 SC 9] [LNIND 1999 SC 9] [LNIND 1999 SC 9]. 76 AIR 1955 SC 25 [LNIND 1954 SC 130] [LNIND 1954 SC 130] [LNIND 1954 SC 130]: 1954 (2) LLJ 686: 1955 (1) SCR 735

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[LNIND 1954 SC 130] [LNIND 1954 SC 130] [LNIND 1954 SC 130]. Also see, JAIN, Cases, Chapter III, 106. 77 Banarsi Das v. State of Madhya Pradesh, AIR 1958 SC 909 [LNIND 1958 SC 40] [LNIND 1958 SC 40] [LNIND 1958 SC 40], 913: 1959 SCR 427 [LNIND 1958 SC 40] [LNIND 1958 SC 40] [LNIND 1958 SC 40]; Sable Waghire & Co. v. Union of India, AIR 1975 SC 1172 [LNIND 1975 SC 133] [LNIND 1975 SC 133] [LNIND 1975 SC 133]: (1975) 1 SCC 763. 78 Also see, infra, this chapter, under Taxing Powers. 79 AIR 1979 SC 1475 [LNIND 1979 SC 272] [LNIND 1979 SC 272] [LNIND 1979 SC 272]: (1979) 3 SCC 616. 80 Sasa Musa Sugar Works v. State of Bihar, (1996) 9 SCC 681 [LNIND 1996 SC 2363] [LNIND 1996 SC 2363] [LNIND 1996 SC 2363], 705 (paras 30 and 31): AIR 1997 SC 188 [LNIND 1996 SC 2363] [LNIND 1996 SC 2363] [LNIND 1996 SC 2363], followed in Bihar State Agrl. Mkt. Board v. Anil Prasant, (2005) 10 SCC 173 (paras 1 and 6). 81 In re Delhi Laws Act, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. 82 AIR 1954 SC 569 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]: 1955 (1) SCR 290. Also see, JAIN, Cases, Chapter III, 101. 83 Rajnarain v. Chairman Patna Administration Committee, AIR 1954 SC 567, at 575. 84 Also see, infra, Chapter VI, under 'Consultation'. 85 AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953; XII A.S.I.L. 475 (1976); JAIN, Cases, Chapter III, 102. 86 See, In re Delhi Laws Act, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. The title of the Act has been changed from the Part C States (Laws) Act, 1950 to the Union Territories (Laws) Act, 1950, because Part C States have disappeared and Union Territories have appeared instead. 87 See, B. Shama Rao v. Union territory of Pondicherry, AIR 1967 SC 1480 [LNIND 1967 SC 39] [LNIND 1967 SC 39] [LNIND 1967 SC 39]: 1967 (2) SCR 650, JAIN Cases 99; and also, the minority view in Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788 [LNIND 1966 SC 83] [LNIND 1966 SC 83] [LNIND 1966 SC 83]: 1966 (3) SCR 885. 88 AIR 1989 SC 572 [LNIND 1988 SC 525] [LNIND 1988 SC 525] [LNIND 1988 SC 525]: (1989) 1 SCC 561; JAIN, Cases, 110. 89 Brij Sunder Kapoor v. First Additional District Judge, AIR 1989 SC 572 [LNIND 1988 SC 525] [LNIND 1988 SC 525] [LNIND 1988 SC 525]: (1989) 1 SCC 561, 583. 90 Brij Sunder Kapoor v. First Additional District Judge, AIR 1989 SC 572 [LNIND 1988 SC 525] [LNIND 1988 SC 525] [LNIND 1988 SC 525]: (1989) 1 SCC 561, 574. 91 AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430. For the text of Ramesh Birch, See, JAIN, Cases, Chapter III, 72. 92 AIR 1971 SC 454 [LNIND 1970 SC 352] [LNIND 1970 SC 352] [LNIND 1970 SC 352]: (1970) 2 SCC 820. 93 Report of the CMP. 94 Report of the CMP2, 39, 59-61. Also see, Central Inland Water Transport Corp. Ltd. v. Brojo Nath, AIR 1986 SC 1571 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]: (1986) 3 SCC 156: 1986 (2) LLJ 171 [LNIND 1986 SC 112] [LNIND 1986 SC 112] [LNIND 1986 SC 112]; JAIN, Cases, Chapter IV. 95 Gammon India Ltd. v. Union of India, AIR 1974 SC 960 [LNIND 1974 SC 109] [LNIND 1974 SC 109] [LNIND 1974 SC 109]: (1974) 1 SCC 596: 1974 (1) LLJ 489 [LNIND 1974 SC 109] [LNIND 1974 SC 109] [LNIND 1974 SC 109]; I.N. Rao v. State, AIR 1977 AP 178 [LNIND 1976 AP 164] [LNIND 1976 AP 164] [LNIND 1976 AP 164]. 96 State Bank of Travancore v. Goodfield Plantations, AIR 1980 SC 650 [LNIND 1979 SC 440] [LNIND 1979 SC 440] [LNIND 1979 SC 440]: (1980) 1 SCC 389: (1980) 50 Comp Cas 581. 97 Some other examples are: S. Section 120 of the States Reorganisation Act, 1965 authorised the appropriate government to make changes in the existing law to facilitate its application to any newly formed State. The power was to last for one year only. Also, S. 23-A of the Business Profits Act, 1947 and S. 6 of the Taxation Laws Act, 1949. 1 Bengal lron Corp. v. Commercial Tax Officer, AIR 1993 SC 2414 [LNIND 1993 SC 401] [LNIND 1993 SC 401] [LNIND 1993 SC 401]: 1994 Supp (1) SCC 310. 2 A much more drastic removal of difficulties clause was enacted in the Forty-second Amendment of the Constitution which authorised the President to "make such provisions including any adaptation or modification of any provision of the Constitution, as appear to him to be necessary or expedient for the purpose of removing the difficulty'. Under this clause the modification in the Constitution is not limited to a period of time. No such order, however, can be made after the expiry of two years.

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3 AIR 1967 SC 691 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]: 1967 (1) SCR 15: 1966 (2) LLJ 546 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]; JAIN, Cases, Chapter III, 118. Following Jalan, the Madras High Court in A.N. Parasuraman v. State, AIR 1972 Mad 123 [LNIND 1971 MAD 221] [LNIND 1971 MAD 221] [LNIND 1971 MAD 221], declared a removal of difficulty clause invalid which authorised the Government by order, to do anything "which appears to it to be necessary for the purpose of removing the difficulty". According to the Court, the section conferred a sweeping power on the State Government, the limits of which the Court was unable to comprehend. 4 M.U. Sinai v. Union of India, AIR 1975 SC 797 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], 809: (1975) 3 SCC 765 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353]. In this case, the Court has explained the reasons for having 'removal of difficulty' clauses in modern statutes. 5 Straw Products v. I.T. Officer, AIR 1968 SC 579 [LNIND 1967 SC 303] [LNIND 1967 SC 303] [LNIND 1967 SC 303]: (1968) 68 ITR 227. 6 M.U. Sinai v. Union of India, AIR 1975 SC 797 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], 809: (1975) 3 SCC 765 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353]. 7 AIR 1971 SC 2577 [LNIND 1971 SC 431] [LNIND 1971 SC 431] [LNIND 1971 SC 431]: (1971) 2 SCC 678: 1971 (2) LLJ 513 [LNIND 1971 SC 431] [LNIND 1971 SC 431] [LNIND 1971 SC 431]. 8 Report at 36, 59-61 (1932). Also see, N.A.K. SARMA, HENRY VIII Clause in India, 15 J.I.L.I., 460 (1973). 9 AIR 1988 Pat 9; JAIN, Cases, Chapter III, 121. 10 JAIN, Indian Constitutional Law, 38-47. 11 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. Also, S.B. Dayal v. State of U.P., AIR 1972 SC 1168 [LNIND 1971 SC 542] [LNIND 1971 SC 542] [LNIND 1971 SC 542]: 1972 (2) SCR 141, where the Court said that the power to tax must be "a flexible power" because it can be used as an instrument of planning and to achieve socio-economic goals. 12 AIR 1963 SC 98 [LNIND 1962 SC 93] [LNIND 1962 SC 93] [LNIND 1962 SC 93]: 1962 Supp (3) SCR 481. 13 Hira Lal Ratan Lal v. S.T.O., Kanpur, AIR 1973 SC 1034 [LNIND 1972 SC 476] [LNIND 1972 SC 476] [LNIND 1972 SC 476]: (1973) 1 SCC 216. 14 Babu Ram v. State of Punjab, AIR 1979 SC 1475 [LNIND 1979 SC 272] [LNIND 1979 SC 272] [LNIND 1979 SC 272]: (1979) 3 SCC 616. 15 AIR 1967 SC 1895 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: 1967 (3) SCR 557. Also, JAIN, Cases, Chapter III, 95. 16 AIR 1972 SC 1168 [LNIND 1971 SC 542] [LNIND 1971 SC 542] [LNIND 1971 SC 542]: (1972) 4 SCC 485: (1972) 29 STC 206 (SC); JAIN, Cases, 148. 17 AIR 1973 SC 1374 [LNIND 1973 SC 121] [LNIND 1973 SC 121] [LNIND 1973 SC 121]: 1973 (2) LLJ 120: (1973) 2 SCC 1 [LNIND 1973 SC 121] [LNIND 1973 SC 121] [LNIND 1973 SC 121]. 18 N.K. Papiah v. Excise Commissioner, AIR 1975 SC 1007 [LNIND 1975 SC 607] [LNIND 1975 SC 607] [LNIND 1975 SC 607]: (1975) 1 SCC 492. 19 Supra, this chapter. 20 AIR 1967 SC 1480 [LNIND 1967 SC 39] [LNIND 1967 SC 39] [LNIND 1967 SC 39]: (1967) 20 STC 215; JAIN, Cases, 99. 21 On 'abdication' see, supra, This chapter. 22 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. 23 Also see, International Cotton Corp. v. C.T.O., AIR 1975 SC 1604 [LNIND 1974 SC 303] [LNIND 1974 SC 303] [LNIND 1974 SC 303]: (1975) 3 SCC 585, where S. 8(2)(a) of the same Act was held valid against a similar challenge. 24 State of Kerala v. Madras Rubber Factory Ltd., (1998) 1 SCC 616 [LNIND 1997 SC 1559] [LNIND 1997 SC 1559] [LNIND 1997 SC 1559], para 20: AIR 1998 SC 723 [LNIND 1997 SC 1559] [LNIND 1997 SC 1559] [LNIND 1997 SC 1559], relying on Mohan Breweries & Distillers Ltd. v. CTO, (1997) 7 SCC 542 [LNIND 1997 SC 1189] [LNIND 1997 SC 1189] [LNIND 1997 SC 1189]: AIR 1997 SC 3497 [LNIND 1997 SC 1189] [LNIND 1997 SC 1189] [LNIND 1997 SC 1189]. 25 B. Krishna Bhat v. State of Karnataka, (2001) 4 SCC 227 [LNIND 2001 SC 862] [LNIND 2001 SC 862] [LNIND 2001 SC 862], para 5: AIR 2001 SC 1885 [LNIND 2001 SC 862] [LNIND 2001 SC 862] [LNIND 2001 SC 862]. 26 Rathi Menon v. U.O.I., (2001) 3 SCC 714 [LNIND 2001 SC 664] [LNIND 2001 SC 664] [LNIND 2001 SC 664], para 23: AIR

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2001 SC 1333 [LNIND 2001 SC 664] [LNIND 2001 SC 664] [LNIND 2001 SC 664]. 27 Bangalore W.C. Mills v. Bangalore Corporation, AIR 1962 SC 1263 [LNIND 1961 SC 44] [LNIND 1961 SC 44] [LNIND 1961 SC 44]: 1961 (3) SCR 698. 28 Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills Ltd., AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: 1968 (3) SCR 251. Here the Corporation was given authority to fix the maximum rate of tax by its resolution subject to government approval. Also, JAIN, Cases, Chapter III, 132. 29 Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251. 30 Municipal Board, Hapur v. Raghuvendra Kripal, AIR 1966 SC 693 [LNIND 1965 SC 232] [LNIND 1965 SC 232] [LNIND 1965 SC 232]: 1966 (1) SCR 950. 31 Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251. Also see, infra, Chapter VI. 32 AIR 1965 SC 1107 [LNIND 1964 SC 354] [LNIND 1964 SC 354] [LNIND 1964 SC 354]: 1965 (2) SCR 477. Also, JAIN, Cases, Chapter III, 124. 33 G.B. Modi v. Ahmedabad Municipality, AIR 1971 SC 2100 [LNIND 1971 SC 169] [LNIND 1971 SC 169] [LNIND 1971 SC 169]: (1971) 1 SCC 823. 34 Western India Theatres Ltd. v. Municipal Corporation, AIR 1965 SC 586; Also, N.J. Nayudu & Co. v. Administrator, City of Nagpur, AIR 1970 Bom. 59 [LNIND 1968 BOM 69] [LNIND 1968 BOM 69] [LNIND 1968 BOM 69]. 35 AIR 1979 SC 321 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: (1979) 1 SCC 137. Also, JAIN, Cases, Chapter III. 36 Devi Das v. State of Punjab, AIR 1967 SC 1895 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: (1967) 3 SCR 557. 37 See FOSTER, The Delegation of Legislative Power to Administrative Officers, 7 111. L.R., 397, 398 (1913). 38 AIR 1970 SC 1589 [LNIND 1969 SC 292] [LNIND 1969 SC 292] [LNIND 1969 SC 292]: (1970) 2 SCC 644; JAIN, Cases, 145. 39 (1998) 9 SCC 58, 59 (Para 7). 40 The Supreme Court has explained the difference between 'conditional legislation' and 'delegated legislation' in Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: (1960) 2 SCR 671; also, AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735, JAIN cases, Chapter III, 108. 41 5 IA 178 (1878). See, JAIN Cases, Chapter III, 151. 42 72 IA 57 (1945). 43 Basant Kumar Sarkar v. Eagle Rolling Mills, AIR 1964 SC 1260 [LNIND 1964 SC 52] [LNIND 1964 SC 52] [LNIND 1964 SC 52]: 1964 (2) LLJ 105: 1964 (6) SCR 913 [LNIND 1964 SC 52] [LNIND 1964 SC 52] [LNIND 1964 SC 52]. 44 AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]: 1957 SCR 605. 45 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: (1982) 1 SCC 271: 1982 Crlj 340; JAIN, Cases, 718. Also, infra, Chapter V, under Judicial Control of Delegated Legislation. 46 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735; supra, note 130; JAIN, Cases, Chapter III, 108. 47 Jatindra Nath v. Province of Bihar, AIR 1949 FC 175. See, JAIN, Cases, Chapter III, 153. 48 K.S.E. Board v. Indian Aluminium, AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]: (1976) 1 SCC 466. 49 Supra, this chapter. AIR 1962 SC 1052 [LNIND 1962 SC 74] [LNIND 1962 SC 74] [LNIND 1962 SC 74]: 1962 (2) Crlj 215. 50 Tulsipur Sugar Co. v. Notified Area Committee, AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]: (1980) 2 SCC 295; see, next Chapter. 51 AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], 722: (1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]. XII A.S.I.L. 475 (1976); JAIN cases, Chapter III, 102.

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52 See, Saraswat Co-op. Bank Ltd. v. P.G. Koranne, AIR 1983 Bom. 317. 53 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 655 (para 26). 54 State of T.N. v. K. Sabanayagam, (1998) 1 SCC 318 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486], paras 20, 21, 22: AIR 1998 SC 344 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486]. 55 Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44 [LNIND 2002 SC 346] [LNIND 2002 SC 346] [LNIND 2002 SC 346], 49-50 (paras 7 and 8): (2002) 3 SCR 600 [LNIND 2002 SC 346] [LNIND 2002 SC 346] [LNIND 2002 SC 346], followed in Common Cause v. Union of India, (2003) 8 SCC 250 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862], 262 (para 27): AIR 2003 SC 4493 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862]. 56 (2003) 8 SCC 250 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862], 262 (para 28): AIR 2003 SC 4493 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862]. 57 (1955) 2 SCR 1196 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]: AIR 1956 SC 246 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]. 58 (1960) 2 SCR 671 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230], as cited in I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 653 (para 22). 59 276 US 394: 72 L Ed 624 (1927). 60 (1878) 3 AC 889. 61 (1882) 7 AC 829, 835: 51 LJPC 77: 46 LT 889. 62 (1944) LR 72 IA 57: AIR 1945 PC 48 [LNIND 1944 PC 32] [LNIND 1944 PC 32] [LNIND 1944 PC 32]. 63 1957 SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]: AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]. 64 72 Pa 491. 65 143 US 649: 36 L Ed 294 (1892). 66 1957 SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], 619: AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], as cited in M.P. High Court Bar Association v. U.O.I, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 789 (paras 47 and 48). 67 (1878) 3 AC 889: 5 IA 178 (PC). 68 1957 SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], 619: AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]. 69 (1998) 1 SCC 318 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486], 336 (para 14): 1998 SCC (L&S) 260: AIR 1998 SC 344 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486]as cited in M.P. High Court Bar Association v. U.O.I., (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 789 (para 49). 70 State of T.N. v. K. Sabanayagam, (1998) 1 SCC 318 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486], para 14: AIR 1998 SC 344 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486]. 71 Justice BRENNAN emphasizes this point in U.S. v. Robel, 389 U.S. 258, 276 (1967) as follows: "Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people." 72 Committee on Minister's Power Report; see supra this chapter AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792. 73 See the observations of Justice REHNQUIST in Industrial Department v. American Petroleum Institution, 448 U.S. 607 (1980). Also see, this chapter; AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430; JAIN, Cases, Chapter III. 74 Infra, Chapter V. 75 See, supra 68, under "skeleton legislation". 76 See, supra, this chapter AIR 1957 SC 478 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]: 1957 SCR 701, for comments on how the doctrine is applied at present.

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77 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. 78 Registrar Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340. 79 Avinder Singh v. State of Punjab, AIR 1979 SC 321 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: (1979) 1 SCC 137. Also JAIN, Cases Chapter III. 80 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 332 (para 12): AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], relying on Registrar of Co-operative Societies v. K. Kunjabmu, (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]and State of Nagaland v. Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] [LNIND 1966 SC 77] [LNIND 1966 SC 77]: 1967 Crlj 265. 81 Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 34-35 (paras 56 and 57): AIR 2004 SC 1107 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853]. 82 (1984) 4 SCC 27 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173], 39-40 (para 14): AIR 1984 SC 1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]. 83 Union of India v. Azadi bacho Andolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 35 (para 57): AIR 2004 SC 1107 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853]. 84 Haniraj L. Chulani (Dr.) v. Bar Council of Maharashtra & Goa, (1996) 3 SCC 342 [LNIND 1996 SC 743] [LNIND 1996 SC 743] [LNIND 1996 SC 743], 355-359 (paras 16 to 19): AIR 1996 SC 1708 [LNIND 1996 SC 743] [LNIND 1996 SC 743] [LNIND 1996 SC 743]. 85 Mahe Beach Trading Co. v. Union Territory of Pondicherry, (1996) 3 SCC 741 [LNIND 1996 SC 741] [LNIND 1996 SC 741] [LNIND 1996 SC 741], 747 (para 15). 86 See, Makhan Singh v. State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] [LNIND 1952 SC 126] [LNIND 1952 SC 126]: (1964) 4 SCR 797: 1964 (1) Crlj 269. For emergency provisions of the Constitution, see, JAIN, Indian Constitutional Law, 358. 87 See, Chapter VI, infra. 88 A doubt has been raised against the constitutional validity of this procedure: see, supra, Chapter II . 89 SCHWARTZ, Recent Developments in American Adm. Law, (1980) LVIII Can. B.R., 319, 325; SCHWARTZ, Am. Adm. Law--A Synoptic Survey, 14 Israel L.R., 413, 415-16. Also see, supra, Chapter II . 90 Supra, Chapter II. 91 Infra, Chapter VI. 92 Infra, Chapter V. 93 Supra, this chapter AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98: AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: 1954 Crlj 1322. 94 Industrial Department v. American Petroleum Institution, 448 US 607 (1980). 95 SCHWARTZ, Casebook, 115-116 (1988). 96 (1984) 3 SCC 127 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88], para 29: AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88], relying on Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner of Sales Tax, (1974) 4 SCC 98 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418] and In re Delhi Laws Act, 1912, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. 97 Kishan Prakash Sharma v. Union of India, (2001) 5 SCC 212, 226-27 (para 18): AIR 2001 SCC 1493, following Ajoy Kumar Banerjee v. U.O.I., (1984) 3 SCC 127 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]. 1 Arun Tewari v. Zila Mansavi Shikshak Sangh, (1998) 2 SCC 332 [LNIND 1997 SC 1526] [LNIND 1997 SC 1526] [LNIND 1997 SC 1526], 337 (paras 14-16): AIR 1998 SC 331 [LNIND 1997 SC 1526] [LNIND 1997 SC 1526] [LNIND 1997 SC 1526]. See also Workmen v. Meenakshi Mills Ltd., (1992) 4 SCC 336, 372. 2 (2004) 1 SCC 256, 269 (paras 23 and 25): AIR 2004 SC 218, relying on WADE & FORSYTH: Administrative Law, 8th Edn., 2000, at page 322.

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3 Mahe Beach Trading Co. v. Union Territory of Pondicherry, (1996) 3 SCC 741 [LNIND 1996 SC 741] [LNIND 1996 SC 741] [LNIND 1996 SC 741], 764 (para 13), relying on Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, (1960) 2 SCR 671 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735; Devi Das Gopal Krishnan v. State of Punjab, (1967) 3 SCR 557 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: AIR 1967 SC 1895 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: (1967) 20 STC 430; Municipal Corpn. of Delhi v. Birla Cotton Spg. And Wvg. Mills, (1968) 3 SCR 251 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]and Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST, (1974) 4 SCC 98 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: 1974 SCC (Tax) 226: (1974) 2 SCR 879 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]. 4 Krishna Mohan (P.) Ltd. v. Municipal Corporation of Delhi, (2003) 7 SCC 151 [LNIND 2003 SC 588] [LNIND 2003 SC 588] [LNIND 2003 SC 588], 171 (para 51(1); AIR 2003 SC 2935 [LNIND 2003 SC 588] [LNIND 2003 SC 588] [LNIND 2003 SC 588].

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER V JUDICIAL CONTROL OVER DELEGATED LEGISLATION

CHAPTER V JUDICIAL CONTROL OVER DELEGATED LEGISLATION 1. NEED FOR CONTROLS It has been stated in the previous chapter that to-day the institution of delegated legislation has come to stay as a part of the modern administrative process. The question no longer arises whether delegated legislation is desirable or necessary or not, but what controls and safeguards can and ought to be introduced so that the rule-making power conferred on the Administration is not misused or misapplied.1 Delegated legislation essentially is bureaucratic legislation. It involves transfer of legislative power from the legislature to the Administration. Here are absent the normal democratic safeguards which usually operate in case of legislation by a representative legislature. It is therefore very necessary to have an effective control mechanism so that the benefits and advantages of the institution of delegated legislation may be utilised but its disadvantages minimised. Many types of controls operate in this area, e.g., judicial control, legislative control, procedural controls like publication and consultation with affected interests. In the entirety of control-mechanism, the first place is occupied by judicial control. This is the theme of this Chapter. The courts review delegated legislation on a number of grounds. 2. JUDICIAL CONTROL In Indian Express Newspapers (Bom) (P) Ltd. v. Union of India ,2 the grounds on which subordinate legislation can be questioned were outlined by the Supreme Court. E.S. Venkataramiah, J. observed thus: "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made.. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say 'Parliament never intended authority to make such rules. They are unreasonable and ultra vires."

In State of M.P. v. Bhola ,3 the Supreme Court observed as under: A delegated legislation can be declared invalid by the Court mainly on two grounds: firstly, that it violates any provision

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of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule-making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be held to be in violation of the enabling Act.

Any rule, regulation or executive instruction which has the effect of taking away the services rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Article 14 and 16 of the Constitution. Hence, they would be liable to be struck down.4 The Supreme Court5 observed: "True, the breach of policy decision by itself is not a ground to invalidate delegated legislation. But, in a case like this, the inevitable fallout of the breach of policy decision which the Government itself treated as a charter for the resultant legislation is to leave an imprint of arbitrariness on the legislation. When the selection or classification of certain drugs is involved for the purpose of price control, such selection or classification should be on a rational basis and cannot be strikingly arbitrary. No doubt, in such matters, wide latitude is conceded to the legislature or its delegate. Broadly, the subordinate law-making authority is guided by the policy and objectives of the primary legislation disclosed by the preamble and other provisions. The delegated legislation need not be modelled on a set pattern or prefixed guidelines. However, where the delegate goes a step further, draws up and announces a rational policy in keeping with the purposes of the enabling legislation and even lays down specific criteria to promote the policy, the criteria so evolved become the guideposts for its legislative action. In that sense, its freedom of classification will be regulated by the self-evolved criteria and there should be demonstrable justification for deviating therefrom. Though exactitude and meticulous conformance is not what is required, it is not open to the Government to go haywire and flout or debilitate the set norms either by giving distorted meaning to them or by disregarding the very facts and factors which it professed to take into account in the interest of transparency and objectivity. Otherwise, the legislative act of the delegate in choosing some drugs for price control while leaving others will attract the wrath of Article 14."

The Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself. The delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14.6 There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds : (a) (b) (c) (d) (e) (f)

Lack of legislative competence to make the subordinate legislation. Violation of fundamental rights guaranteed under the Constitution of India. Violation of any provision of the Constitution of India. Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. Repugnancy to the laws of the land, that is, any enactment. Manifest arbitrariness/unreasonableness (to an extent where the Court might well say that the legislature never intended to give authority to make such rules).7

The test of arbitrary action is applicable to executive action. It does not necessarily apply to delegated legislation to strike down which it has to be established that there is manifest arbitrariness.8 The Court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the Court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the Court should proceed with caution before declaring invalidity.9

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(a) Constitutionality of the Parent Act A question may arise whether the statute under which legislative powers have been delegated is itself constitutional or not, for if the delegating statute itself is unconstitutional, then the delegated legislation emanating thereunder will ipso facto be invalid. The parent Act may be unconstitutional on the ground of excessive delegation, or on the ground of breach of a Fundamental Right or on any other ground (e.g., distribution of powers between the Centre and the States). This aspect is best discussed under Constitutional Law and it is not necessary to go into this matter here.10 (b) Constitutionality of Delegated Legislation The courts may be asked to consider the question of constitutionality of delegated legislation itself. The parent statute may be constitutional, but the delegated legislation emanating thereunder may be in conflict with some provision of the Constitution. In that case, the delegated legislation will be invalid. Here, again, the frame of reference to assess the validity of delegated legislation is the Constitution. For example, in Dwarka Prasad Laxmi Narain v. State of U.P. , a few provisions of the U.P. Coal Control Order, 1953, made under S. 3(2) of the Essential Supplies Act, 1946,11 were declared ultra vires as infringing Art. 19(1)(g). Similarly, in Rashid Ahmad v. Municipal Board ,12 certain bye-laws made by a municipality were held bad under Art. 19(1)(g). In Narendra Kumar v. Union of India ,13 the Supreme Court specifically considered the point whether the question of unconstitutionality of delegated legislation made under a valid Act could be raised or not. The Non-Ferrous Metals Order, 1958 was made under the Essential Commodities Act, 1955. In an earlier case,14 the validity of the Act had been upheld. The question now was whether the constitutional validity of the order could be canvassed under Art. 19(1)(g). The Court held that though a law may not be unconstitutional, an order made thereunder may yet be challenged under the Constitution, because the law could not be presumed to authorise anything unconstitutional. Again, the question of unconstitutionality of the rules falls more appropriately under Constitutional Law. Art. 14 guarantees 'equal protection of the laws' and 'equality before the law'.15 In course of time, Art. 14 has emerged as the most potent constitutional provision to control rule-making. Delegated legislation has been declared invalid in a number of cases under Art. 14 on such grounds as being arbitrary, or discriminatory or on the ground of unreasonableness.16 A rule vesting unguided and uncontrolled discretion in the government to retire any government servant at any time after his completing 30 years of service (even though he had not reached the age of superanuation) was held invalid under Art. 14 since the rule provided no safeguards, gave absolute discretion and, thus, was "capable of being used arbitrarily and with an uneven hand.17 Similarly, a rule empowering an authority to terminate the service of a permanent employee by giving him a three months' notice, or salary in lieu thereof, has been held to be invalid under Art. 14 as it rendered the tenure of an employee subject to the whim or pleasure of the employer unguided by any principle or policy.18 In India Express Newspapers (Bombay) (P) Ltd. v. Union of India ,19 the Supreme Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; "unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary." Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say "Parliament never intended the authority to make such rules; they are unreasonable and ultra vires." In India arbitrariness is not a separate ground since it will come within the embargo of the Article 14. But the subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14. The rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power.20 The Supreme Court observed that, if the main Act is within the legislative competence of the State Legislature and the rules have been framed under a validily delegated authority and are within the scope of that authority, the rules cannot be challenged on the ground of lack of legislative competence. If the Act is

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valid, so are the rules.21 One of the conditions of the auction of the timber logs was that the authorities were absolved of their liability for any deficiency in the quantity and quality of the timer and of the measurements when the intending bidder purchased the logs in the forest timber depots. Thereafter, there were provisions that the empowered officer would inspect the premises and verify the wood purchased to satisfy himself of the source of the wood found in the depot and also the purchase of logs in auction. However, a detailed procedure has been prescribed in the relevant forms in that behalf from the time of felling of the trees till the entrustment of the purchased logs to the auction purchaser. The transit permit does contain the same details with number of the truck carrying the wood. The meticulous details are required to be mentioned in the relevant forms. When the logs reach the destination, namely, the saw-mill or the saw-pit necessary entries are required to be made in various Forms. Thus the M.P. Transit (Forest Produce) Rules, 1961 whose vires was challenged, are consistent with the meticulous details and there is no gap. Hence, it was held that they could not be declared ultra vires the Constitution as offending the Articles 19(1)(g) or 14 simply because some shortfall or discrepancy was noticed by the officer in the quantity or quality of the wood. Equally, when officer takes action for the violation of the statutory provisions, an individual case is required to be considered on the fact-situation. The rules could not be declared ultra vires on account thereof.22 If a case, here involving a subordinate legislation, can be decided upon any other ground other than constitutional grounds, such as by statutory construction or the like, the Supreme Court must do so.23 (c) Doctrine ofUltra Vires Delegated legislation can be challenged before the courts on the ground of being ultra vires the parent Act. The courts can adjudge the legality and validity of delegated legislation by applying the doctrine of ultra vires. The doctrine of ultra vires has two aspects : substantive and procedural. When delegated legislation goes beyond the scope of the authority conferred by, or it is in conflict with, the parent statute it is invalid and this is known as substantive ultra vires. When the rule-making authority deviates from the procedure, if any, prescribed by the parent statute for making rules, it is known as procedural ultra vires. Both these aspects are discussed below. It may be pointed out here that the doctrine of ultra vires is the basic doctrine in Administrative Law. It is the root principle of power of the Administration and is the foundation of judicial power to control actions of the Administration.24 The basic principle is that an authority being the creature of the law it has only such powers as are granted to it by the law. The parent statute is thus both--(i) a source of authority of the concerned agency as well as (ii) of the limits on it. An action of the agency is valid, when it falls within the statutory limits, but it is invalid when it falls outside legal limits (ultra vires). We shall have occasion to revert to this theme again and again in the following pages. It is also well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and the other invalid, the Courts must adopt that construction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires.25 3. SUBSTANTIVE ULTRA VIRES Delegated legislation may also be struck down because its substance infringes the parent Act, another primary statute, or constitutional principle.26 Substantive ultra vires means that the rule-making authority has no substantive power under the empowering Act to make the rules in question. It refers to the scope, extent and range of power conferred by the parent statute to make delegated legislation. Briefly stated, the principle is that the delegate cannot make a rule which is not authorised by the parent statute. If the subordinate legislative authority keeps within the scope and bounds of the power delegated, the delegated legislation is valid; but if it falls outside the scope of the

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power, the courts will declare it invalid. Delegated legislation to be valid must fall within the four corners of the powers conferred by the statute. Declaring a rule in the Karnataka Motor Vehicle Rules, 1963, ultra vires the Motor Vehicles Act, 1939, as the rule was inconsistent with a section in the Act, the Supreme Court declared in State of Karnataka v. Ganesh Kamath 27 that the rule-making power "cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. .. Conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto." As the Supreme Court has emphasized in Renusagar28: "If the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled." Thus, delegated legislation repugnant to, or inconsistent with or in contravention of, or in excess of, or overriding the provisions of, the parent Act is ultra vires.29 Section 4(1) of the Telegraph Act, 1885 empowers exclusively the Central Govt. to establish, maintain and work telegraphs and Section 7 enables it to make rules consistent with the provisions of the Act which it did not do, but the Supreme Court observed that in that event it could not be held that, unless such rules are framed, the Govt. could not exercise its power under Section 4(1) and exercise of that statutory power by the Govt. could not be circumscribed, limited or restricted by any subordinate legislation/rules framed under Section 7.30 Thus, if power is conferred to legislate only with respect to certain topics, or for certain purposes, or in certain circumstances, the limits of the power must not be crossed. For this purpose, the phraseology of the delegating provision becomes very relevant. In applying the doctrine, the court has a three-fold task: first, to determine the meaning of the words used in the Act itself to describe the delegated legislation which the delegate is authorised to make; secondly, to determine the meaning of the subordinate legislation itself; and, finally, to decide whether the subordinate legislation complies with that description. Before taking up some illustrations to exemplify as to how the doctrine of ultra vires operates in the area of delegated legislation, it may be worthwhile to point out that, in practice, it is quite a difficult matter to have delegated legislation declared ultra vires. Not many cases actually occur in which the courts declare delegated legislation invalid on the ground of substantive ultra vires. Several reasons contribute to this situation. One main reason is that the rule-making power delegated to the executive is couched in broad and general terms. The efficacy of judicial review of delegated legislation on the ground of substantive ultra vires depends ultimately on the phraseology of the statutory provision delegating the power on the concerned Authority. If the power is couched in too broad and general terms, the efficacy of the ultra vires doctrine will be very much compromised as in such a case it may be very difficult to hold that a rule falls outside the purview of the rule-making power delegated. Broader the power delegated, less the chance for the courts to be able to control their exercise. Thus, in case of skeletal legislation,31 where the legislature lays down only the barest outlines of the statutory scheme in the parent Act, and does not specify clearly the principles, policies or standards which it wants the delegate to follow while making the rules, or gives no guidance or direction to the delegate as to how he is to exercise his power to make delegated legislation, the application of the doctrine of substantive ultra vires becomes extremely difficult. And the truth is that in modern legislation, rule making powers are usually delegated in very broad terms and so declaration of rules ultra vires becomes a rarity indeed. This underlines the need and significance of having the doctrine of excessive delegation so that too broad legislative powers are not conferred by the legislature on the Administration and the statute contains standards and policy statements subject to which the power of delegated legislation is to exercised. In such a case, the courts can control the ensuing delegated legislation by applying the principle that delegated legislation going beyond the policy of the Act is ultra vires. But the statutes rarely lay down standards or policies. For example, S. 3(1) of the Defence of India Act, 1962, authorised the Central Government to make rules "as appear to it necessary or expedient for securing the defence of India and civil defence... or for maintaining supplies and services essential to the life of the community". Prima facie this provision conferred a very liberal power on the Government to make rules as the 'necessity' or 'expediency' of a rule depended on the subjective satisfaction of the Government and there was no principle, policy, direction or guidance given to the Government as to how to exercise its rule making power. The only possible restriction on the Government may be that it acts in good faith, does not act with an ulterior motive,32 and that the rules have some nexus with the purposes specified in S. 3(1).33 The Supreme Court struck down the proviso inserted in sub-rule (1) of Rule 3 of the H.P. Ceiling on Land Holdings Rules, 1973 by notification dated 4.4.1986 and the circular order dated 21.8.1990 issued by the Registrar, District Kangra at Dharamshala and declared them invalid, they being ultra vires the powers of the H.P. Ceiling on Land Holdings Act, 1973 as they were the outcome of unguided general delegation and did not subserve any

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purpose sought to be achieved by the parent Act.34 T.N. Town and Country Planning Act, 1971 (35 of 1972), Sec. 113-A delegated wide powers to grant exemption to buildings under the Act without any guidelines but the Supreme Court held that the delegation of power was not excessive, though wide, as it could be controlled through legislative policy which could be gathered from the Preamble, Objects and Reasons and relevant provisions of the Act and the Development Control Rules.35 Keeping this aspect in view and with the objective of giving a meaningful play to the ultra vires doctrine so as to strengthen judicial control over delegated legislation, the Committee on Ministers' powers36 observed in 1932 that the "precise limits of the law-making power which Parliament intends to confer on a Minister should always be expressly defined in clear language by the statute which confers it: when discretion is conferred, its limits should be defined with equal clearness."37 This aspect brings out the great significance of the doctrine of excessive delegation,38 for if the legislature is made to delegate legislative power in controlled terms, and not in too broad and generalized language, and were to incorporate policies, standards or guidelines as well as some procedural safeguards into the delegating provision, then it may be possible for the courts to apply the ultra vires concept in a more effective manner. But the way the courts have applied the doctrine of excessive delegation so far fails to achieve this significant objective. Another reason for failure of challenges to delegated legislation on the ground of substantive ultra vires is judicial reticence to declare the same invalid. The efficacy of the doctrine of ultra vires depends also on the judicial attitude--how scrutinising an attitude do the courts adopt? The courts generally adopt a benevolent and indulgent, rather than a critical, attitude towards delegated legislation while applying the doctrine of ultra vires. The judicial attitude by and large is to lean toward the validity of delegated legislation. It is therefore a rarity to come across examples of judicial invalidation of rules on the ground of ultra vires. To uphold delegated legislation, the courts adopt several strategies. One is for the courts to eschew any challenge to delegated legislation on the basis of policy or principle underlying the same. The Supreme Court has emphasized39 that while adjudging the vires of delegated legislation, the courts are not concerned with the principle or policy underlying the same. Matter of policy are left to the government. The court's scrutiny is to be limited to the question whether the impugned regulations fall within the scope of the rule making power conferred on the delegate by the statute. The court cannot sit in judgment over the wisdom of the policy evolved by the rule-making body. The policy may be wise so as to fully effectuate the purpose of the statute, or it may lack in effectiveness, but any drawback in the policy incorporated in a rule does not render it ultra vires. In the words of the Court : "So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it... the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural, would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the courts to examine the merits or demerits of such a policy."

Thus, while adjudging the vires of delegated legislation, the courts do not concern themselves with the merits, demeris, wisdom or unwisdom of the underlying policy. A Court never quashes a rule because, in its opinion, the policy underlying it is not wise or prudent. The Court's only concern is to see whether the impugned delegated legislation falls within the scope of the rule-making power conferred on the concerned authority by the parent statute. Similarly, in England where a similar rule is followed; the court has said :40 "They [Ministers] are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge."

Further, the judicial attitude generally is to interpret the delegating provision rather broadly and this makes it easier to uphold delegated legislation as intra vires, for if the scope of the rule-making power is broad, it may be difficult to argue that the impugned rules fall outside the purview of the rule-making power. This judicial attitude can be illustrated by two examples. S. 80J of the Income Tax Act, 1961, uses the term "capital employed" on which relief may be granted to new enterprises. Rule 19A of the Income Tax Rules, 1962,

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defines the term restrictively so as to exclude from its scope long term borrowing. By a majority, the Supreme Court upheld the vires of the rule in Lohia Machines Ltd. v. Union of India .41 According to the Court, the term 'capital employed' has no fixed connotation; it is not a term of art; it is "susceptible of varied meanings including or excluding short term borrowings or long term borrowings, whether of all categories or of any particular category or categories depending on its environmental context". The Court thus conceded to the Government power to define the term in any way it thinks best as the term in question has been given a very flexible connotation. The Essential Supplies Act extended to "cotton textiles". The Cotton Textile Control Order, 1948, fixed prices for cotton yarn. The question was whether the order was ultra vires. Answering in the negative, the Court pointed out that the expression "cotton textiles" would include "yarn" as well. "Cotton Textiles" is a generic term which includes both cotton fabrics as well as yarn.42 Again, in evaluating the vires of delegated legislation, the courts start with the presumption of "constitutionality, competence and reasonableness" of delegated legislation just as the courts do in respect of primary legislation by the legislature. As a general proposition, delegated legislation is regarded as validly made, and part of the law of the land, until a court decides otherwise. In the House of Lords, in Hoffman43, Lord Diplock referred to this aspect and observed, "... the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question."44 The Kerala High Court has said recently in P.V. Mani v. Union of India follows:45 "The court shall not assume that a subordinate legislative instrument is invalid for absence of competence or bona fide or fairness or reasonableness and cast the negative burden on the rule-making authority. It should be just the other way; the person who challenges the vires of a rule has to prove his challenge just as much as a person who challenges a legislative enactment. If he fails in such attempt the challenge can only be thrown out."

Thus, the rule is presumed prima facie to be intra vires. It is not for the authority concerned to show that it exercised its power "honestly, bona fide, fairly and reasonably". It is for the person aggrieved to prove affirmatively that "the presumption in favour of constitutionlity, competence, fairness and reasonableness is unsustainable."46 The onus of establishing invalidity is on the challenger. According to the court, such a presumption is necessary otherwise no subordinate legislation will be safe from attacks on imaginary or flimsy grounds. Rules of interpretation as applied to legislative enactments are also applied to delegated legislation. The task of a person who endeavours to challenge the validity of delegated legislation is indeed a difficult one. In the light of what has been said above, it will appear that, on the whole, judicial review of delegated legislation is a weak control mechanism. In reality, it seems to be more of a symbolic value rather than of much practical value as a control mechanism over delegated legislation. It also needs to be emphasized that legislative control over delegated legislation also does not amount to much of an effective democratic control.47 Therefore, a more interventionist role on the part of the courts to the question of vires of delegated legislation may be in order. It is necessary that in assessing the validity of subsidiary legislation, the courts play a creative, rather than a mere mechanistic role. The main question is to draw a balance between administrative legislation and individual rights in the light of the prevailing circumstances and the purpose of the statute in question. But such judicial stance is not forthcoming at the present moment. A few examples are mentioned below denoting the application of the substantive ultra vires doctrine to delegated legislation. Under S. 3 read with S. 5 of the Essential Commodities Act, 1955, the State Government has power to make orders regulating manufacture, distribution etc. of essential commodities mentioned in S. 2. This Section does not mention bricks as an essential commodity. Therefore, an order made by the State Government requiring brick manufacturers to take out licences for using coal for manufacturing bricks was held to be unwarranted. Therefore, no prosecution could be launched for contravention of the order and the first information report lodged in that behalf would be quashed.48 At times, a statute may authorise the State Governments to make rules but subject to the rider that they do

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so with the concurrence or sanction of the Central Government. This is regarded as a substantive restriction on the competence of the State Governments. Therefore, amendments made to the existing rules by a State Government without the concurrence or sanction of the Central Government would be invalid.49 Even when broad rule-making power is conferred, and the impugned rules are intra vires the parent Act, they may, nevertheless, be struck down by the courts if found to be against some specific statutory provision. Ultimately it is for the court to decide whether a rule is inconsistent with a specific statutory provision or not. Rules may also be declared ultra vires if they come in conflict with some fundamental principle of general law including Administrative Law, e.g., a rule conferring excessive discretionary power on an administrative authority is invalid.50. Under S. 3(4) of the Advocates Act, 1961, the qualifications and conditions entitling an advocate to vote at an election, or for being a candidate for membership of the State Bar Council, have to be prescribed by the Bar Council of India. This cannot be done by the State Bar Council. If a rule for the purpose is made by the State Bar Council, it cannot be valid even if it is approved by the Bar Council of India for--(i) approval of an ultra vires rule cannot validate it; (ii) such a rule cannot be regarded as having been made by the Bar Council of India, for making of a rule and giving approval to a rule are two distinct concepts.51 One cannot take the place of the other. Thus, the rule was held invalid because the rule-making authority had no power to make the rule in question. The Cinematograph Act makes district magistrates as the licensing authorities. A district magistrate may grant licences to whomsoever he thinks fit "subject to the control of the government." A rule made by a State Government transferred in effect to the government itself the power to decide as to whom to grant the licence, making the function of the district magistrate more or less mechanical. Such a rule is ultra vires for, under the law, the function of granting or refusing a cinema hence has been vested in the district magistrate as the licensing authority and the government cannot usurp that function. The legislature contemplates a licensing authority as distinguished from the government. The government can exercise control over the licensing authority but cannot completely oust him.52 It is the licensing authority who has to act and not the government itself. Similarly, power to make procedural rules for tribunals would not include the power to make a rule to impose a period of limitation within which a person could take recourse to the tribunal. Limitation bars the claim and extinguishes the right and this is a "substantive" and not a "procedural" matter.53 The rule thus being of a "substantive" nature could not be made in pursuance of the power to make "procedural" rules. A provision in a State Municipal Act stated that when any local area was included within the limits of a municipality, "all rules, bye-laws, orders, directions and powers" made under the Act and in force in the concerned municipality, would apply to the local area included. The court ruled that this provision did not include "notification", and so a tax being collected in the municipal area under a "notification" could not be levied in the newly included local area.54 The court thus took an extremely technical and literal view of the provision in question. Perhaps, the judicial view emanated from the fact that a tax was being levied in the instant case and there is a well established principle that tax statutes should be strictly construed.55 The Cantonments Act confers power on the Central Government to make rules to fix the tenure of office, salaries, leave of absence and 'other conditions of service of servants' of Cantonment Boards. Under this provision, the Government made a rule providing for transfer of an employee of one Cantonment Board to another Board. The Supreme Court declared the rule to be ultra vires, the reason being that each Cantonment Board is an autonomous entity, the service under the Cantonment Board is not a centralised service, and so an employee of one Board cannot be transferred to another Board.56 The transfer of an employee from one board to another amounts to termination of his service in the first and his re-appointment in the second board. S. 5 of the Coal Mines Provident Fund and Bonus Act, 1948, authorises the Central Government to frame the bonus scheme. As a part of the scheme, the Government created a quasi-judicial tribunal to decide disputes arising under the scheme. The Supreme Court rejected the argument that the creation of the tribunal was ultra vires arguing that this was merely a matter of detail which was subsidiary or ancillary to the main purpose.57 In Federation of Customs House Agents' Association v. Union of India ,58 the validity of

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Regulation 8 of the Customs House Agents Licensing Regulations, 1984, which provided for grant of temporary licence before the applicant qualified for the said purpose at the prescribed examination. The Regulations were framed under Section 146 of the Customs Act, 1962 of which sub-section (1) barred the business as a Customs House Agent without a licence; but none of the clauses of sub-section (2) of Section 146 prescribed any restriction on grant of temporary licence. Besides, the Committee for Subordinate Legislation in its report had also recommended that temporary licence should be issued initially for a period of two years and the performance of the temporary licensee be watched. The Supreme Court held that in this background it could not be said that the said Regulation 8 was invalid, arbitrary or unconstitutional in any manner. Moreso when the said Regulation 8 had proper check and balance in which the experience of work relating to clearance of goods through the customs as well as the performance at the qualifying written or oral examination both had been taken note of.59 Rules framed in 1983 by the State of Bihar under the provisions of Sections 41, 42 and 76 of the Forest Act, 1927 for the establishment of saw-pits and establishment and regulation of depots were held to be not ultra vires the rule making power conferred by the Act. Hence, the Supreme Court held that the notice issued by the Chief Conservator of Forests under the rules requiring the owners of saw-pits and depots to obtain licenses and providing that those found unlicensed would be liable to penalty under the Rules was valid.60 Orders passed by an officer during the period, the appointment of the said officer was declared to be illegal, would not be invalid or ultra vires as the said officer was not an usurper of the post.61 Section 3-A(2) of the National Highways Act, 1965 required giving of a brief description of the land sought to be acquired in the notification issued under Section 3-A(1). Hence, where a notification specified a plot number, the part whereof was intended to be acquired but did not specify that part, the said requirement was not satisfied and the notification was vitiated.62 Many a time the term 'regulation' is used in statutory provisions delegating legislative power to the executive. For example, it may be said: "The Authority may regulate by making rules...". Here the scope of the rule-making authority depends on the interpretation of the word "regulation". Broader the meaning given to "regulation", the broader is the scope of the rule-making power. Question often arises whether the word 'regulation' can be taken to mean 'prohibition'. In some cases, the courts have interpreted 'regulation' restrictively as excluding prohibition'63 while in other cases,64 the courts have interpreted it broadly as including prohibition. The proposition that the word 'regulation' has flexible meaning has been reiterated by the Supreme Court in K. Ramanathan v. State of Tamil Nadu .65 S. 3(2)(d) of the Essential Commodities Act, 1955 empowers the Central Government to issue an order for "regulating by licenses, permits'etc. of storage, transport, use and consumption of any essential commodity. The Supreme Court has ruled that the word 'regulating' in 5. 3(2)(d) takes in 'prohibition'. Thus, an order banning movement or transport of paddy out of some districts of Tamil Nadu was held valid. The Court has emphasized that the word 'regulation' does not have that rigid or inflexible meaning as to exclude 'prohibition'. "The word 'regulate' is difficult to define as having any precise meaning. It is a word of wide import, having a broad meaning, and is very comprehensive in scope. There is a diversity of opinion as to its meaning and its application to a particular state of facts." A broad view of the word 'regulation' was taken by the Supreme Court in Minerva Talkies66. where a rule fixing the number of cinema shows at four per day was held valid as a matter of regulation of exhibition of cinematograph films under the Karnataka Cinemas (Regulation) Act, 1964. The liberal judicial attitude towards delegated legislation is tellingly typified by the Supreme Court pronouncement in State of Tamil Nadu v. M/s Hind Stone .67 S. 15 of the Mines and Mineral (Regulation and Development) Act, 1957, empowers the State Governments to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals. The Tamil Nadu Government promulgated a rule banning leases for quarrying black granite in favour of private persons and laying down that in future leases could only be granted to a wholly government-owned corporation. Thus, by using its rule-making power, the government abolished private enterprise in, and nationalised, quarrying of black granite. The High Court struck down the rule on the ground that S. 15 gave power only "to regulate", and not "to prohibit", the grant of mining leases. On appeal, the Supreme Court upheld the validity of the inpugned rule on the ground that it was made for conserving, and prudent exploitation of, minerals with a view to secure maximum benefit to the community. The word "regulating" in S. 15 was interpreted broadly, so as to include "prohibiting" as well. The Court pointed out that "regulation" does not have such a rigidity of meaning as never to take in "prohibition". The word 'regulation' has no fixed connotation. Its meaning differs according to the thing to whom it is applied. "Much depends on the context in which the expression is used in the statute and the object sought to be achieved by the contemplated regulation". Said the Court:

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"In modern statutes concerned as they are with economic and social activities, 'regulation' must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare state."

The Court also rejected the argument that the impugned rule changed the policy of the Act which could be done by the legislature alone. The Court argued that the rule referred only to one mineral, viz., black granite, and not to all minerals, and this did not represent any change of policy. If, however, a complete and general ban is imposed on private mining of all minor minerals, then it may invoke a reversal of a major policy which may need legislative sanction. The Court also held that the rule was not invalid because it created a monopoly in favour of the State. A commonly used technique of delegating legislative power is first to give a general rule-making power for carrying out the purposes of the Act and, then, to lay down, without prejudice to the generality of the previous clause, several specific heads for which the delegate is authorised to make rules. The courts have taken the view that when such a formula is used, the real source of power is the general provision; the specific heads enumerated do not confer any fresh power; the purpose of the specific heads is only illustrative and not exhaustive, and the range, scope and ambit of the general rule-making power conferred by the previous clause is not restricted or cut down in any way by the illustrative specific heads mentioned. A rule justifiable under the general rule-making power is valid even if it is not relatable to any of the enumerated specific heads. For example, S. 2(1) of the Defence of India Act, 1939, gave power to the Central Government to make such rules "as appear to it to be necessary or expedient for securing the defence of British India, the public safety ... etc." Then, "without prejudice to the generality of the powers" conferred by S. 2(1),S. 2(2)(x) gave a limited power to the Government to apprehend and detain persons in preventive detention. The Government made a rule which went beyond the scope of S. 2(2)(x). The Federal Court of India held the rule invalid as it took the view that the legislature having set out in plain and unambiguous language in S. 2(2)(x) the scope of the rules which could be made providing for preventive detention, "it is not permissible to pray in aid the more general words in S 2(1) in order to justify a rule which so plainly goes beyond" the limits of S. (2)(x).68 On appeal in another case, the Privy Council, however, reversed this ruling and held the rule in question to be valid under the general power contained in S. 2(1). The Privy Council characterised the function of S. 2(2) as merely 'illustrative'; the rule-making power having been conferred by S. 2(1), the provisions of S. 2(2) were not restrictive of S. 2(1).69 But is the reverse position also true? Can a specified illustrative head extend the scope of the general power? This interesting question arose before the Supreme Court in Regina.70 A statute conferred a general rule-making power on the Government "to carry out all or any of the purposes of the Act." Then, certain heads were specified for which rules could be made. One of these heads was: conditions for recognition of elementary schools. There was, however, no provision in the Act itself relating to recognition of schools. The Court held that the rules made under the specific head related to no purpose of the Act and so the rules could not be valid as they would not satisfy the condition precedent for such rule-making, namely, that they can be made only "to carry out all or any of the purposes of this Act." The implication of this ruling is that the specific heads cannot broaden the scope of general power in so far as the rules made under specific illustrative heads must satisfy the over-all condition contained in the general power, namely, to carry out the purposes of the parent Act. At times, the authority concerned may wrongly state that it has made a rule under a particular provision of a statute, while, in fact, it has done so under another provision. This does not affect the validity of the rules. When power exists and a rule made is within the competence of the rule-making authority, it cannot be held invalid merely because it purports to be made under a wrong provision, if it can be shown that the rule could be made under any other provision. The crucial question is whether the concerned authority has the power to make the rule in question.71 A mere wrong label cannot invalidate the action of an authority which otherwise falls within its statutory power.72. Similarly, rules do not become invalid if the rule-making authority omits to mention the source of its rule-making power, provided it has the power to make them. The court can relate the rules to the enabling provision in the parent Act.73 Rule 9-A of the J&K CS (Judicial Recruitment) Rules, 1967, providing for the relaxation of upper age limit for the candidates, was later on deleted. Subsequently, the State Govt. by its order relaxed the upper age limit by a certain period in favour of a candidate. The Supreme Court held that such an order, in the absence of an enabling provision in the rules, could not be

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sustained.74 The Schedule II to the T.N. General Sales Tax Act 1 of 1959 specifies in respect of iron and steel the single point of levy as "the point of first sale in the State" whereas the impugned circular shifted the point of levy from the first sale to a subsequent sale, which was held be bad in law.75 Rule 9 (as amended) of the H.P. Passengers and Goods Taxation Rules, 1957 was held to be impliedly ultra vires Section 3 of the H.P. Passengers and Goods Taxation Act 15 of 1955.76 The Bar Council of India Training Rules, 1995 prescribed additional qualification of pre-enrolment training and examination for being qualified to be enrolled as an advocate on the State Roll. They also provided that a trainee advocate would have a limited right to ask for adjournment and mention cases of his guide. The Supreme Court held that these provisions were ultra vires the rule-making power of the Bar Council of India available under the Advocates Act, 1961.77 Reference has already been made to removal of difficulties clauses.78 Questions may arise whether an order made thereunder is intra vires or ultra vires. For example, the Supreme Court ruled in State Bank of Travancore v. Goodfield Plantations ,79 with reference to S. 45(10) of the Banking Regulation Act, 1949, that there was real difficulty in implementing the scheme, and the Central Government was fully competent to pass an order removing that difficulty, and the order in question was not inconsistent with the provisions of the scheme in any manner. In the end result, the Court held that the order was not ultra vires S. 45(10).80 Similarly, in R.B.I v. Peerless Gen. Fin. & Invest. Co. Ltd. ,81 the Supreme Court held that the para 4-A inserted by a Notification in directions issued by RBI under the enabling provision of Section 45-K(3) of Reserve Bank of India Act, 1934 was intra vires as the enabling power covers, ancillary or incidental power also. Even if an Act does not specifically provide for the levy in question by name but provided statutory authority for its imposition by delegated legislation which was actually done, it was held that such an imposition of levy would be valid and not ultra vires. The same was the position in the instant case.82 Merely misstatement of the appropriate/enabling section will not invalidate the reopening of the assessment because the power to do so was already there under the Act.83 Mere wrong reference to the enabling provision would not invalidate the bye-law as long as the provision therefore exists.84 In Hyderabad Karnataka Education Society v. Registrar of Societies ,85 it was contended that Rule 7 of the rules framed by the Society ran counter to the provisions of Section 2(b) of the Karnataka Societies Registration Act (17 of 1960) as it provided for automatic loss of ordinary membership of the Society in case of default in payment of annual subscription within the stipulated time but the Apex Court found that the contention was wrong as it was in pari materia and did not offend the said section in any manner. Rules ought not to be repugnant to the parent Act. Rules can only be effective to the extent that they are consistent with the parent Act. A rule is ultra vires if it is inconsistent with the policy of the parent Act. An example of the application of this principle is furnished by Baban Naik v. Union of India .86 The Maharashtra Co-operative Societies Act, 1961, authorises (S. 78) the Registrar to remove the committee of a Co-operative society after giving it an opportunity to state its objections. Under another provision of the Act, the Government could by a notification in the Gazette exempt any society from any provision of the Act. The Government issued a notification exempting the society in question from the purview of S. 78 thus withdrawing the requirement of hearing. This notification was held invalid on the ground that it affected the substance of the provisions of the parent Act insofar as the notification withdrew the safeguards given to a society in the matter of suppression of its committee. The court emphasized that the power of exemption given to the government could not be so exercised as to affect the substance of the provisions of the parent Act in question.87 This principle can also be exemplified by another situation. It has been pointed out earlier that a statute may confer power on the executive for its own modification.88 The courts insist that such a power cannot be exercised so as to change the basic policy of the parent Act. In Rajnarain,89 where such a provision was involved, the executive picked up a section of the parent Act pertaining to the levy of taxes and extended it to a new area. The policy of the parent Act was to give to the concerned people an opportunity of filing objections and of being heard before any tax was imposed on them. In the instant case, this safeguard was dropped. The tax was imposed without giving the people concerned a hearing. The Court held that this involved a change of policy and, therefore, the extension of the section was ultra vires. A similar situation arose in Lachmi Narain.90 The delegating provision in question gave power to the government to modify the schedule appended to the Act by giving a three months' notice. The schedule listed non-taxable items under

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the Act. Under the Union Territories (Laws) Act, this provision was modified by dropping the requirement of three months' notice. The Supreme Court declared this modification ultra vires for it made a change in the policy of the Act. The three months' notice to effect any change in the schedule was a matter of "legislative policy" which only the legislature could change and not the delegate. It is for the courts to decide what is the "essential legislative policy" of a statute and whether or not it is sought to be changed by the impugned delegated legislation.91 If the power to make rules conferred on the concerned authority is exercisable having regard to some factors specified in the parent Act, then the making of the rules without taking into account these factors will vitiate the rules.92 A delegated legislation, though, legislative in character, will be invalid, on the ground of violation of principles of natural justice, if the enabling Act, under which the delegated legislation is made, specially requires observance of the principles of natural justice for doing the act.93 When the parent statute expressly states the specific purposes for which the rules are to be made, then the task of the court in assessing the validity of the rules is comparatively easy: the court determines the validity of the rule by relating it to what it does to that purpose. The court has to assess whether the rules can be related to the stated purposes. The rules can be valid only if they have a nexus with the stated purposes because the power is limited to making rules only for the specified purposes. If the rules purporting to be made under this power could be shown to have been made otherwise than for the specified purposes, then the rules could be held to be ultra vires.94 There also operates in this area the doctrine of 'implied powers' which means that the rule-making power would extend to whatever may be regarded as incidental to, or consequential upon, the stated purposes. This gives an added dimension to the rule-making power, but, as the Bombay High Court has clarified the doctrine of implied powers does not enable the rule-making authority to operate beyond the field within which it can operate.95 A few examples will clarify the position. S. 15(2) of the Advocates Act authorises a State Bar Council to make rules to provide for the manner of election of its chairman. The Delhi High Court has ruled that the State Bar Council could make rules for the purpose of removing its chairman (for which there is no specific provision in the Act) because the power to elect would also include power to remove the chairman.1. S. 7(1)(h) of the Advocates Act authorises the Bar Council "to lay down standards" of legal education. The provision has been interpreted broadly so as to include every ingredient constituting the end or ultimate level of legal education that was expected of a candidate applying for enrolment as an advocate.2. But this does not happen often that the statute specifically states the purposes for which rule-making power is conferred. In most of the cases the purposes, policies and objects of the statute are left unstated. Usually the rule-making power is conferred without specifically mentioning the purposes as such for which it is to be used; a general formula is used, e.g., rules can be made "for carrying out the purposes of the Act." The general principle is that the rule-making power is to be exercised to advance the policy, purposes and objects of the parent Act. The legal effect of such a formula is to confer a plenary rule-making power on the delegate but subject to the over-all requirement that the rules made ought to have a nexus with the underlying purposes of the Act. The courts infer the purposes underlying the parent Act from the preamble and other provisions of the Act.3. The Supreme Court has stated in Minerva Talkies4: "The declared will of the Legislature and the policy and purpose of the Act are discernible from the title, preamble and the express provisions of the Act." The Court has explained that if the express provisions of the Act are "plain and unambiguous" it is advisable to find out the purposes of the Act from those provisions but if the provisions are ambiguous and the court faces difficulty in deducing the purposes of the Act from these provisions, then it is permissible to refer to the title and preamble of the Act to find out the legislative objects, and the purposes of the Act. A rule may be challenged as ultra vires on the ground that it has no relation with the purposes for which the rule-making power has been given under the parent Act or that it subverts the general purposes of the Act. In practice, however, it may be extremely difficult to substantiate such a challenge before a court. In Ibrahim v. Regional Transport Authority ,5 the rule-making power was conferred "for the purpose of carrying into effect the provisions of this chapter." The purpose of the chapter was "control of transport vehicles." Rules relating to "fixing or altering busstands" were held to fall within the rule-making power of the concerned authority and were regarded as being not foreign to the purposes of the chapter. In Sales Tax Officer v. Abraham ,6 the State Government having rule-making power to carry out the purposes of the Act made rules prescribing the last date for filing declaration forms by dealers in order to get the

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benefit of confessional rates on interstate sales. The Court struck down the rules as it found that the statute authorised the making of rules only for prescribing what particulars were to be mentioned in the forms, etc., and not for prescribing a time-limit for filing the forms. A rule made by the Delhi Administration stipulating that the rates of admission to cinema auditoriums would be fixed or revised only with the prior approval of the Lt. Governor of Delhi was held to be not justified by S. 16(a) of the Cinematograph Act, 1952 which authorised prescription of "the terms, conditions and restrictions" subject to which licences may be issued to cinema exhibitors. The Court ruled that the conditions to be made in the licences must be such as to facilitate the achieving and carrying out the purposes of the Act. Such purposes set down the limits on the framing of such rules so that a rule to be valid must pertain to them. The regulation or control of cinema admission tickets was not the purpose of the Cinematograph Act, and so the rule in question could not be valid. The Court emphasized that rules must be made so as to facilitate the achieving and carrying out the purposes of the Act and that a lacuna or absence of policy and purpose in the parent Act could not be cured by the rule-making authority as it has no plenary powers as such but has to act within the parameters of the power granted to it by the parent Act.7 Thus, in this case, the ultra vires doctrine became applicable because the rule-making authority sought to achieve a purpose not warranted by the statute in question. On the other hand, in a similar situation, the Andhra Pradesh High Court took a different stand. The relevant State Act was in peri matria with the Cinematograph Act. The court justified the fixation of rates of admission to cinemas by licensing authority on several grounds, viz.: (i) the word 'regulation' in the Act is a word of broad import having wide meaning comprehending all facets not only specifically enumerated in the Act but also embracing within its fold the powers incidental to the regulation envisaged in good faith with an eye on public welfare; (ii) the legislature seems to have intended that "the rules thus made would subserve not merely the enumerated but any other legitimate incidental purposes necessary to carry them out effectually.8 The Act need not spell out the details of each incidental matter for which rules could be made; and (iii) the power to fix the rates of admission was in public interest and an "incidental or ancillary purpose of the regulation to exhibit cinematographs. The A.P. High Court thus resorted to an extremely liberal approach to the purposes stated in the Act to uphold the impugned rule. According to this approach, sky is the limit; no rule can ever be ultra vires; the rule-making authority can make any rule in public interest and the purposes stated in the Act can be stretched to accommodate the rule. In Punjab Tin Supply Co. v. Central Government ,9 the Supreme Court also gave an additional dimension to the purposes stated in the Act. Said the Court: "The preamble and the provisions of a statute no doubt assist the court in finding out its object and policy but its object and policy need not always be strictly confined to its preamble and the provisions contained therein. ..."

As regards the Rent Control Act, which was the statute in question, the Court ruled that its object and policy appeared to be "slightly wider" than some of its "key provisions". In Minerva,10 the Karnataka Government made a rule (Rule 41A) under S. 19 of the Karnataka Cinemas Regulation Act, 1964, restricting cinema licensees to hold not more than four shows in a day. S. 19 of the at gave power to the Government to make rules for the "purposes of the Act". The rule in question was challenged as being ultra vires the Act but the Supreme Court rejected the contention. The Court ruled that Rule 41A was framed to carry out the purposes of the Act. The Court looked at the title of the Act, its preamble and provisions to discern the purposes of the Act and ruled that Rule 41A was referable to several provisions of the Act as the Act conferred wide powers on the government for the regulation of the exhibition of films. "The restriction to limit the number of shows to four in a day placed by Rule 41A is regulatory in nature which clearly carries out the purposes of the Act". Ajay Kumar Bannerjee v. Union of India ,11 is one of those rare cases in which a piece of delegated legislation was held void as going beyond the object for which the power was delegated. To ascertain the object for which the power was delegated, the Supreme Court referred to the preamble to the Act in question, some provisions therein and also to the memorandum on delegated legislation presented to the Parliament at the time of the passage of the Bill. It is one of those rare cases where the Court really cut down the breadth of the delegation to bring it in line with the object of the delegation of legislative power. The Court emphasized that "the purpose or object of the conferment of the power must be borne in mind." The Court pointed out that "the authority and scope for subordinate legislation can be read in either of the two ways; namely one which creates wider delegation and one which restricts that delegation." In the peculiar facts of

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this case, "the one which restricts the delegation must be preferred to the other." Thus, in the instant case, the Court consciously adopted the strategy of cutting down the range of delegation by referring to the purposes of the Act unlike numerous other cases where the reverse strategy has been adopted, viz., to extend the range of delegation by referring to the purposes of the Act. The case arose in consequence of merger and nationalisation of general insurance companies. The Central Government issued a scheme for rationalisation of the terms and conditions of service of various sections of the employees. The employees challenged the scheme as they maintained that they were prejudicially affected thereby. Prima facie, the scheme appeared to fall within the terms of the statutory provision delegating power to frame schemes on the Government. But the Court held the scheme invalid by arguing that the statutory power to frame schemes could not be exercised in a manner unrelated to merger or amalgamation of insurance companies. But the scheme in question was not connected with the process of merger and was thus unauthorised. As regards land acquisition, Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948 does not empower the Government to deduct any amount from the compensation payable to the owner for the land acquired for public purpose in the exercise of its power of eminent domain. Hence, the Govt. Circular directing the deduction of 1/3rd of the market value of the land towards interest of the Govt. being ultra vires, was held invalid.12 By virtue of Section 9 of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, a scheme came to be framed called "The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985." As per the Scheme, certain Deputy Commissioners came to be appointed under Section 6 of the Act. Under para 5(3) of the Scheme, if the Deputy Commissioner was of the opinion that the claims fell in a category different from the category mentioned by the claimant, he might decide the appropriate category after giving opportunity to the claimant. The Welfare Commissioner issued administrative orders that the Deputy Commissioner shall not alter the categorisation unless the Welfare Commissioner has approved the same. The Apex Court held that the power of the Deputy Commissioner being quasi-judicial in nature, by issuing the directions the Welfare Commissioner has clearly impinged on the power of the Deputy Commissioner which is justified neither by the Act nor the Scheme.13 The Govt. of Gujarat issued the Gujarat Paddy (Procurement) Order, 1974 with its Schedule II fixing the price of different varieties of paddy to be procured in the State of Gujarat without taking into consideration the relevant statutory requirements specified in the amended sub-section 3-B of Section 3 of the Essential Commodities Act, 1955, hence it being ultra vires the said sub-section, was struck down.14 The proviso to Rule 5 of the Assam Agricultural Income-Tax Rules, 1939 empowers the State Officers to recompute the agricultural income already computed by the central authorities under the Income-tax Act, 1961. Section 50 of the Assam Agricultural Income-tax Act, 1939 empowers the State Govt. to make such rules as are necessary for the purpose of carrying out the purposes of the Act. The object and scheme of the Act do not contemplate the State authorities being empowered to recompute the agricultural income contrary to the computation made by the Central Officers under the Central Act. It is an established principle that the power to make rules under an Act is derived from the enabling provision found in such Act. Therefore, it is fundamental that a delegate on whom such power is conferred has to act within the limits of the authority conferred by the Act and it cannot enlarge the scope of the Act. A delegate cannot override the Act either by exceeding the authority or by making provision which is inconsistent with the Act. Any rule made in exercise of such delegated power has to be in consonance with the provisions of the Act, and if the rule goes beyond what the Act contemplates, the rule becomes in excess of the power delegated under the Act, and if it does any of the above, the rule becomes ultra vires the Act. The same is the position of the said Rule 5 of the State rules.15 The penalty cannot be beyond what is permissible in Act.16 In holding a relevant rule to be ultra vires, it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto. If the entire enactment read as whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment.17 It is well-established principle in law that so long as the impugned power is traceable to the statute concerned, mere omission or error in reciting the correct provision of law does not denude the power of the authority from taking statutory action.18 The J&K State Board of Education is vested with the power to ensure proper conduct of examination and also with power to constitute committees for different purposes and delegate any of its functions in favour of any officer of the Board. If the Board in its wisdom considered it advisable to delegate the power in the matter of mass copying at any examination centre in favour of its Chairman, no exception can be taken to it on the ground of want of power. In that case, the Chairman acts as a delegate of the Board. Any action taken or order passed, here

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notification cancelling the examination on the ground of mass copying, passed by the Chairman on the strength of delegation made by the Board, cannot be faulted on the ground of lack of competence or authority.19 In the case of inconsistency between the Regulations and provision of the statute mentioned therein, the inconsistent provisions contained in the Regulations would be inoperative and not the provision of the statute.20 The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the Courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that Regulations, under consideration in the instant case and made under Section 23 of the All-India Council for Technical Education Act, 1987 have "constitutional" and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions.21 The Central Govt. and the State Govt. are statutory authorities. They must, thus, act within the four corners of the statute. When an order is meant to be passed by either of the Govts., the same must be passed by an authority competent therefor. An order which has been passed by an officer without any authority would be non est.22 The Central Govt. by notification delegated power to State Govts. to make orders under Section 3 of the Essential Commodities Act, 1955 in relation to foodstuffs. Exercising that power the State of T.N. promulgated T.N. Scheduled Articles (Prescription of Standards) Order, 1977 including tea within its sweep vide Entry 19 of Sch. I. The Supreme Court held that the said Order of 1977 was ultra vires to the extent it related to tea as it is not foodstuff.23 Where a certain statutory power was assigned to an authority, the Central Govt. could not confer such power upon itself by amending certain circular letters.24 Administrative decision or direction contrary to statutory regulation, being ultra vires, would be ineffective.25 By promulgation of an ordinance by the President of India which was later on approved by Parliament, prescribing procedure in respect of a matter regarding which subordinate legislation in form of Rules already existed, the said rules would cease to exist.26 In Kerala Samsthana Chethu Thozhilali Union v. State of Kerala ,27 the Apex Court held that Rule 4(2) of the Keralal Abkari Shops Disposal Rules, 2002 was ultra vires in its entirety as even that part of it, vis a vis, the toddy workers was not severable. Where the assessment was made in strict compliance of the rules whose validity had been upheld by the Apex Court, the assessment cannot be challenged on the ground of non-compliance of rules.28 While framing the rules for the purposes of the Act, the legislative policy cannot be abridged. The rules must be framed to carry out the purposes of the Act. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature, rules could not be framed in matters not contemplated under the Act. They could be made only for the purpose of carrying out the purposes of the Act and not dehors the same. The rules in terms of Section 29(1) of the Kerala Abkari Act, 1 of 1077, thus, could be framed only for the purpose of carrying out the provisions of the Act. Both the power to frame rules and the power to impose terms and conditions are, therefore, subject to the provisions of the Act. They must not be framed in contravention of the constitutional or statutory scheme.29 By reason of Section 8 of the Kerala Abkari Act, 1 of 1077, trade in arrack was prohibited as far back as in

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the year 1996. By reason of the impugned Kerala Abkari Shops Disposal Rules, 2002, the State has not laid down the terms and conditions for employment of a worker. The Act does not contain any provision therefor. An employer is entitled to employ any person, he likes. It is well settled that no person can be thrust upon an unwilling employer except in accordance with the provisions of a special statute operating in the field. Such a provision cannot be made by the State in the exercise of its power under delegated legislation unless the same is expressly conferred by the statute. The State may have unfettered power to regulate the manufacture, sale or export-import sale of intoxicants but in the absence of any statutory provision, it cannot, in the purported exercise of the said power, direct a particular class of workers to be employed in other categories of liquor shops.30 The Supreme Court, in Kerala Sansthana Chethu Thozhilali Union v. State of Kerala ,31 cited various authorities on the point that the subordinate legislation must be framed in consonance with the legislative intent. It being a consolidated picture, it is given in full and under : In Ashok Lanka v. Rishi Dixit ,32 it was held: We are not oblivious of the fact that framing of rules is not an executive act but a legislative act; but there cannot be any doubt whatsoever that such subordinate legislation must be framed strictly in consonance with the legislative intent as reflected in the rule-making power contained in Section 62 of the M.P. Excise Act, 1915.

In Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group ,33 the Supreme Court has stated the law in the following terms: "104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the appellants that the Courts cannot exercise their power of judicial review at all. By reason of any legislation, whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith."

In Craies on Statute Law, 7th Edn., it is stated at pp. 297-98: The initial difference between subordinate legislation (of the kind dealt with in this chapter) and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority, and that Courts of law, as a general rule, will not give effect to the rules, etc., thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the Courts, the validity of delegated legislation as a general rule can be. The Courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation: and it follows that the Court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials.

In G.P. Singh's Principles of Statutory Interpretation, 10th Edn., it is stated at p. 916: Grounds of judicial review: Delegated legislation is open to the scrutiny of Courts and may be declared invalid particularly on two grounds (a) Violation of the Constitution; and (b) Violation of the enabling Act. The second ground includes within itself not only cases of violation of the substantive provisions of the enabling Act, but also cases of violation of the mandatory procedure prescribed. It may also be challenged on the ground that it cannot be said to be in conformity with the statute or Article 14 of the Constitution or that it has been exercised in bad faith. The limitations which apply to the exercise of administrative or quasi-judicial power conferred by a statute except the requirement of natural justice also apply to the exercise of power of delegated legislation. Rules made under the Constitution do not qualify as legislation in true sense and are treated as subordinate legislation and can be challenged in judicial review like delegated legislation. Compliance with the laying requirement or even approval by a resolution of Parliament does not confer any immunity to the delegated legislation but it may be a circumstance to be taken into account along with

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other factors to uphold its validity although as earlier seen a laying clause may prevent the enabling Act being declared invalid for excessive delegation.

In Clariant International Ltd. v. Securities & Exchange Board of India ,34 this Court observed: "63. When any criterion is fixed by a statute or by a policy, an attempt should be made by the authority making the delegated legislation to follow the policy formulation broadly and substantially and in conformity therewith. (See Secy., Ministry of Chemicals & Fertilizers, Govt. of India v. Cipla Ltd. 35)

In State of Rajasthan v. Basant Nathata ,36 it was pointed out: "66. The contention raised to the effect that this Court would not interfere with the policy decision is again devoid of any merit. A legislative policy must conform to the provisions of the constitutional mandates. Even otherwise a policy decision can be subjected to judicial review."

In B.K. Industries v. Union of India ,37 this Court clearly held that a delegate cannot act contrary to the basic feature of the Act stating: "The words 'so far as may be' occurring in Section 3(4) of the Cess Act cannot be stretched to that extent. Above all it is extremely doubtful whether the power of exemption conferred by Rule 8 can be carried to the extent of nullifying the very Act itself. It would be difficult to agree that by virtue of the power of exemption, the very levy created by Section 3(1) can be dispensed with. Doing so would amount to nullifying the Cess Act itself. Nothing remains thereafter to be done under the Cess Act. Even the language of Rule 8 does not warrant such extensive power. Rule 8 contemplates merely exempting of certain exciseable goods from the whole or any part of the duty leviable on such goods. The principle of the decision of this Court in Kesavananda Bharati v. State of Kerala ,38 applies here perfectly. It was held therein that the power of amendment conferred by Article 368 cannot extend to scrapping of the Constitution or to altering the basic structure of the Constitution. Applying the principle of the decision, it must be held that the power of exemption cannot be utilised for, nor can it extend to, the scrapping of the very Act itself. To repeat, the power of exemption cannot be utilised to dispense with the very levy created under Section 3 of the Cess Act or for that matter under Section 3 of the Central Excise Act."

The law that has, thus, been laid down is that if by a notification the Act itself stands affected the notification may be struck down.39 In Hotel Balaji v. State of A.P. ,40 it is stated: "The necessity and significance of the delegated legislation is well accepted and needs no elaboration at our hands. Even so, it is well to remind ourselves that rules represent subordinate legislation. They cannot travel beyond the purview of the Act. Where the Act says that rules on being made shall be deemed 'as if enacted in this Act', the position may be different. (It is not necessary to express any definite opinion on this aspect for the purpose of this case). But where the Act does not say so, the rules do not become part of the Act."

(a) Control of Rule-maker's Discretion In some statutes, the delegating formula may be cast in subjective terms. For instance, it may say that the authority may make rules "as appear to it to be necessary or expedient for giving effect to the provisions of the Act." While this formula gives a wide latitude to make rules to the concerned authority, it does not confer a completely unreviewable discretion. It is wrong to suppose that if the rule-making power is conferred in subjective terms, the rule-making authority gets a carte blanche to make any rules which it sees fit to enact and the doctrine of ultra vires is excluded. The discretion given to the delegate to make legislation is never regarded as completely unfettered. It does not permit him to make any rules whatever which he may feel inclined to make. The power is always conferred for promoting the policy and purposes of the Act and it

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cannot be used for an irrelevant purpose. It is ultimately for the court to determine the limits of the power. Referring to such subjective rule-making power, the Privy Council observed in A-G for Canada v. Mallet & Carey Ltd. 41 "Parliament has chosen to say explicitly that he (the delegate) shall do whatever things he may deem necessary and advisable. That does not allow him to do whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes."

Reference may be made in this connection to Cure and Deeley.42 The commissioners of customs and excise were authorised to make regulations providing for "any matters for which provision appears to them to be necessary" for giving effect to the Act. A regulation barring access to the courts was challenged.43 It was claimed on behalf of the commissioners that their regulation-making power was couched in subjective terms; that the formula "appears to them to be necessary" was the widest which Parliament could use; that the decision whether a regulation was necessary or not for giving effect to the Act was left to the judgment of the commissioners and was not open to any objective assessment and so the court could not go into the validity of the regulation made by the commissioners. The court rejected the argument and stated that the formula did not make the commissioners the sole judge of the extent of their powers as well the sole judge of the way in which they should exercise their powers. The regulation-making power is given to promote the policy and objects of the Act, and, therefore, a regulation to be valid should be one which is capable of being related to the specified or underlying purposes of the legislation. The court observed :44 A court is bound, before reaching a decision on the question whether a regulation is intra vires, to examine the nature, objects and scheme of the piece of legislation as a whole, and in the light of their examination to consider exactly what is the area over which powers are given by the section under which the competent authority is purporting to act.

The question therefore for the courts to consider is whether there is any nexus or connection between the subsidiary legislation in question and the purposes underlying the parent Act. If no such nexus can be found then the regulation is invalid. The court declared the regulation ultra vires. Cure and Deeley is a landmark case in English Administrative Law. The case shows that when power to make delegated legislation is granted to a delegate in subjective terms, the courts may, nevertheless, determine the limits of the power in question. It has however been suggested by commentators that this case is one of the few and rare decisions where a regulation has been declared to be ultra vires and the case has been characterised as an "extreme case of judicial activism".45 Reference may also be made in this connection to an Indian case.46 Under S. 3(1) of the Defence of India Act, 1962, the Government of India was given rule-making power in subjective terms.47 The Government promulgated the Gold Control Rules under this provision. These rules were challenged on the ground that they did not subserve the purposes mentioned in S. 3(1). It was argued that there must be some real and proximate connection between the rules and the specified purposes for which the rules could be made. The Gujarat High Court took the position that while considering the question whether the rules would subserve the purposes for which they were claimed to have been made, it was not to act as a court of appeal from the Government; the court could not examine whether the view taken by the Government that the rules would subserve the stated purposes was right or wrong; the court could not substitute its own opinion for that of the Government. The Government has to take into consideration a multiplicity of factors and certain amount of latitude and free-play must therefore be allowed to it while making rules. The rules in question could not be struck down unless it appeared clearly that they could not, on a reasonable view of the matter, subserve the stated purposes. The test must be whether the rules are reasonably related to the end in view, namely, the achievement of the stated purposes. It is not necessary that the connection or nexus between the means and the end must be such that the implementation of the means must directly result in the achievement of the end without any intervening steps in the chain of causation. It is immaterial how many links there are in the chain between the rules and the stated purposes for the effectuation of which the rules have been made. On the basis of the affidavits filed on behalf of the Government, the court came to the conclusion in the instant case that the rules in question were reasonably related to the purposes stated in S. 3(1). Thus, a direct nexus between the rules and the stated purposes is not necessary. What is necessary is to establish

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that there is some nexus between the two, even if the nexus is an indirect or a distant one. Only if no nexus can be found then the rules will be invalid. On this view, it can be appreciated how difficult it is to challenge any rules as going beyond the purposes stated in the parent Act defining the rule-making power, especially when the power is given in subjective terms.48 In Administrative Law, a cardinal principle is that all statutory powers must be employed in good faith and that mala fides would vitiate an administrative action. This proposition operates in the area of discretionary powers as is discussed later.49 Thus, a discretionary power ought never to be exercised mala fide. But it is a moot point whether the doctrine of male fides operates in the area of delegated legislation.50 Whether a rule can be challenged on the ground of mala fides of the rule-making authority, this question cannot be answered definitively. Some indication has been given to this effect in England in a case of the House of Lords, viz., Mc Eldowney v. Forde .51 Perhaps, mala fides in this area would mean that the rule-making authority is seeking to achieve a purpose through rules which is not warranted by the parent statute; the rule-making power given for one purpose is deliberately being used with the design of achieving some other unauthorized or forbidden purpose. This may be another way of stating the proposition that a rule not in conformity with the purposes for which the rule-making power has been conferred is ultra vires. The Privy Council has stated that if power entrusted for one purpose is deliberately used with the design of achieving another purpose, itself unauthorised or actually forbidden-if bad faith of this kind can be established, the court may intervene.52 It has also been stated that subordinate legislation may be held ultra vires the enabling Act if "the legislators have been animated by improper personal motives which affect the substance of the end-product."53 In Addl. Distt. Magistrate (Rev.) v. Siri Ram ,54 the Supreme Court held that conferment of rule-making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. The Supreme Court found that the rule making authority, by amending the Delhi Land Revenue Rules, 1962 and its Form P-5, had exceeded the power conferred on it by the enabling Act i.e., Delhi Land Revenue Act, 1954 and quashed them, being ultra vires the enabling Act. Mala fides or bad faith is usually associated with some degree of dishonesty or moral turpitude. Therefore, a delegated law-making power is exercised in bad faith when the delegated law-maker's real object is to do harm or to confer a pecuniary benefit on a particular individual rather than to secure some generally beneficial result. In India, the Supreme Court has sent confusing signals on this point. In Suman,55 while holding a notification valid, the Court specifically mentioned that it was not mala fide. The implication of this statement could be that had it been male fide, the Court would have quashed it. In B.D. Gupta v. State of U.P. ,56 where certain service rules made by the Executive under Art. 309 of the Constitution were challenged on the ground that the rules were mala fide and arbitrary, the Supreme Court has said: "It is well-settled that no legislation can be challenged on the ground of mala fides." At least one comment can be made on this statement; in the face of the judicial dicta in England, it can hardly be said that it is 'well-settled' that mala fides of the rule-making authority does not vitiate a rule. On principle and logic, if mala fides of an authority may vitiate an administrative order, there seems to be no reason why it ought not to vitiate a legislative order made by it. There seems to be no logical reason as to why delegated legislation should stand outside this basic principle. If the rule-making authority is motivated by improper motives in passing the impugned rules, why cannot the rules be quashed on this ground? It may be argued that mala fides cannot be attributed to a legislature and that the same principle should be applied to a delegated legislator. But the analogy between a democratically elected legislature and an authority exercising delegated rule-making power is far-fetched and misleading. Earlier, in Jagdish Prasad Sinha v. Bhagwat Prasad ,57 a notification containing some service rules regarding promotion was quashed by the Supreme Court on the ground that the government was motivated by extraneous considerations in issuing the notification in question. Without characterising the action of the government as mala fide, the Court came very near saying so. Recently, the Supreme Court has more or less equated a legislative order with an administrative order for purposes of judicial control of the rule-maker's discretion. The Supreme Court has said that an exercise of power whether legislative or administrative will be set aside on such grounds as: manifest error in the exercise of power; if exercise of power is manifestly arbitrary; if power has been exercised on a non-consideration or nonapplication of mind to relevant factors, if power is exercised on the basis of non-existent or patently erroneous facts.58 These grounds are discussed later in this book.59 It has been asserted by the Supreme Court in State of Rajasthan v. Union of India 60 that a presidential proclamation under Art. 356 of the Constitution can be challenged if power is exercised mala fide. As Bhagwati, J. has

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observed, "if satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it . . ." A proclamation under Art. .356 cannot but be regarded as legislative in nature.61 In V. Jagannadha Rao v. State of A.P. ,62 the Supreme Court held that transfer does not comprehend promotion, hence Special Rules, framed by the Governor of A.P., in exercise of powers under proviso to Article 309, which provided for appointment by transfer to higher category on the basis of seniority-cum-efficiency, was held to be violative of para 5(2) of the Presidential Order and hence was set aside. The Tamil Nadu Govt. published, a draft amendment proposing to omit sub-rules (8), (9) and (11) of Rule 20 and to amend the sub-rules (13) and (14) and militate against the laudable object underlying Rule 20 of the T.N. Motor Vehicles Accidents Claims Tribunal Rules, 1989 as originally framed which was in consonance with the guidelines approved by the Supreme Court. The Apex Court felt sure that T.N. Govt. would not finalise the proposed amendments and if already effected, it shall consider their repeal and restoration of the original R. 20.63 In, People's Union for Civil Liberties v. U.O.I. 64 the Supreme Court noticed that, though the Telegraph Act was enacted in 1885 the Central Govt. did not frame any rules under its Section 7(2)(b) for providing the precautions to be taken for preventing the improper interception or disclosure of messages, hence, it was not possible to safeguard the rights of the citizens guaranteed under Article 19(1)(a) and 21 of the Constitution of India against the exercise of power under Section 5(2) of the Act. Accordingly the Supreme Court issued order and directions in this regard so that the right to privacy of a person is protected. Delegated legislation cannot be questioned for violating the principles of natural justice in its making except when the statute itself provides for that requirement. Where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it is not possible to read natural justice into such legislative activity. Moreover, a provision for such "inquiry as it may consider necessary" by a subordinate legislating body is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in any body.65 While exercising legislative functions, unless unreasonableness or arbitrariness is pointed out, it is not open for the Court to interfere.66 (b) Implied Restrictions While applying the doctrine of substantive ultra vires to delegated legislation, the courts do not look merely at the express words of the enabling provision in the parent statute, but go beyond them and also imply certain restrictions therein. The idea is that the courts do not want the executive to do certain things by using its general rule-making power without being specifically authorised to do so by law. This approach, to some extent, helps in preservation of individual liberty, strengthening of judicial control over delegated legislation, and giving a somewhat broader dimension to the doctrine of ultra vires. (1) Unreasonableness The first implied restriction is that an unreasonable rule is invalid. To begin with, the principle was applied in England to the bye-laws made by a municipal corporation. The courts' position was that the Legislature could never intend to confer power to make unreasonable rules and, therefore, such rules would be ultra vires. But, the concept of unreasonableness was kept within very strict limits as it was realised that unreasonableness could vary from judge to judge. The first significant case in the area is Kruse v. Johnson ,67 in which Lord Russel while laying down the proposition that an unreasonable municipal bye-law would be invalid said that "the courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage." Nevertheless, he gave a very limited meaning to the term unreasonableness, viz., if the bye-laws were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; or if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, then these could be regarded as unreasonable and ultra vires.68 But a bye-law would not be unreasonable "merely because particular judges may think that it goes further than is prudent or necessary or convenient", or because it was not accompanied by a qualification or exception which some

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judges might think ought not to be there. In Kruse, the bye-law was held as not unreasonable. It was also pointed out that the power to make bye-laws was subject to a number of procedural safeguards. As was later explained by Diplock, L.J. in Mixnam69: "The various grounds upon which subordinate legislation has sometimes been said to be void.....can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a bye-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires .. If the Courts can declare subordinate legislation to be invalid for 'uncertainty,' as distinct from unenforceable ... this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain....'." Thus, the concept is that the rules be not unreasonable rather than that they be reasonable. Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation : The Test of Reasonableness' in 36 Modern Law Review 611 at pages 622-23 has summarised the present position in England as follows : (i)

(ii)

(iii)

(iv)

"It is possible that the Courts might invalidate a statutory instrument on the grounds of unreasonableness or uncertainty vagueness or arbitrariness : but the writer's view is that for all practical purposes such instruments must be read as forming part of the parent statute, subject only to the ultra vires test. The Courts are prepared to invalidate bye-laws, or any other form of legislation emanating from an elected representative authority, on the grounds of unreasonableness uncertainty or repugnance to the ordinary law : but they are reluctant to do so and will exercise their power only in clear cases. The Courts may be readier to invalidate bye-laws passed by commercial undertakings under statutory power, although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings, as explained in Kruse v. Johnson , might not now be applied so stringently. As far as subordinate legislation of non-statutory origin is concerned, this is virtually obsolete, but it is clear from French Protestant Hospital In re (1951) Ch. 567 that it would be subject to strict control.70

For long, the judicial view was held in England that the principle of unreasonableness would apply only to bye-laws made by local authorities but not to rules made by government departments. Although, in theory, there can be no reason for not applying the test of unreasonableness to departmental rules, the courts, nevertheless, took the view that they should trust the discretion of a minister because he was directly responsible to Parliament.71 The tenability of this proposition appears to have been shaken in course of time. In Mixnam,72 it was settled that departmental rules could be declared unreasonable. This proposition has now been placed beyong doubt by the House of Lords decision in Mceldowney v. Forde ,73 where views were expressed that a ministerial regulation can be held void on such grounds as vagueness, ambiguity, arbitrariness, uncertainty, unreasonableness and bad faith.74 Uncertainty arises when the court is unable to attach any meaning to the language of the rule. In McEldowney, however, the regulation in question which was made by a Minister was upheld by the House by 3:2 against the charge of being "too vague and so arbitrary as to be wholly unreasonable." Even Cure & Deeley75 has been read by some commentators as supporting the proposition that ministerial regulations could be held invalid on the ground of unreasonableness.76 In India, the test of unreasonableness is applied to delegated legislation under the Kruse v. Johnson doctrine. For example, certain bye-laws made by the Hyderabad Municipal Corporation were held to be meaningless and arbitrary, and hence void. The Court invoked Kruse v. Johnson for the purpose.77 In 1972, the Supreme Court applied the test of unreasonableness to the rules made by the Government and struck them down as wholly unreasonable.78 In another case,79 the Supreme Court considering the question of applicability of the doctrine of unreasonableness, and adopting the Kruse v Johnson test, has stated that

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unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the court on the ground of unreasonableness. The Board of Education made a regulation permitting a candidate to apply for verification of his marks but not for revaluation of his answer books or inspection or disclosure of the answer book which was to be treated as confidential. The High Court struck down the regulation as being unreasonable. On appeal, the Supreme Court reversed the High Court saying that it was for the Board to lay down rules regarding verification of marks and inspection of answer books. The Supreme Court has emphasized that a court cannot strike down a bye-law as unreasonable merely because it thinks that it goes further than "is necessary", or that it does not incorporate certain provisions which, in the opinion of the court, would have been fair and wholesome. A court cannot say that a bye-law is unreasonable merely because it does not approve of it. "The responsible representative body entrusted with the power to make bye-laws must ordinarily be presumed to know what is necessary, reasonable, just and fair."80 In this connection, the Court observed : ".. . when considering whether a bye-law is reasonable or not, the court would need a strong case to be made against it and would decline to determine whether itwould have been wiser or more prudent to make the bye-law less absolute nor will it hold the bye-law to be unreasonable because considerations which the court would itself have regarded in framing such a bye-law have been overlooked or rejected by its framers."

However, in the area of fixation of rates at which a government enterprise will provide services to the public, the Court has exhibited reluctance to apply the test of unreasonableness. This question is discussed later in the Chapter on Public Enterprises. In India, the courts can imply the concept of unreasonableness not only from the common law as is done in England, but also from Art. 14 of the Constitution of India. Art. 14 is the equality clause which guarantees equal protection of laws and equal treatment to all before the law.81 Under Art. 14, the courts regard any delegated legislation as invalid which is arbitrary or unreasonable. According to judicial thinking, any law which is unreasonable or arbitrary denies equality. As the Supreme Court has emphasized in Indian Express,82 arbitrariness "will come within the embargo of Art. 14 of the Constitution". The Kerala High Court has stated the proposition thus: "Any regulation which is not fair, reasonable or rational would run the risk of being invalidated by a court of law."83 This formulation as to unreasonableness is much broader than the one in Kruse v. Johnson . In India, therefore, the doctrine of unreasonableness is based on a more solid foundation than on a common-law principle alone. The courts in India thus enjoy more flexibility for expanding the concept of unreasonableness rather than confining it to the extremely restrictive view prevailing under the common-law. A case in point is Air India v. Nergesh Meerza .84 Air India, a statutory public corporation,85 made a rule to retire any air hostess on her first pregnancy after marriage. The Supreme Court characterised the rule as the "most unreasonable and arbitrary provision which shocks the conscience of the court", which is "extremely detestable and abhorrent to the notions of a civilized society," which amounts to "an open insult to Indian womanhood," and which "contains the quality of unfairness and exhibits naked despotism". The rule was thus held violative of Art. 14. Here the Court took recourse to a much wider concept of unreasonableness than the common law doctrine propounded in Kruse v. Johnson . In another case,86 the Supreme Court has declared a rule made by the Railway Board as unreasonable. The Court pointed out that the rule-making power is given to the Board under the Railway Establishment Code but "such rules must be framed with certain objects in view and must not be arbitrary". "The court is always entitled to examine whether a particular rule which takes away the vested right of a railway employee or seriously affects him with retrospective effect, has been made to meet the exigencies of circumstances or has been made arbitrarily without any real objective behind it." In the instant case, the Court did not find "any objective or purpose" behind the impugned rule made to the serious prejudice of the appellants. Thus, the rule was held to be arbitrary and it could not be allowed to be operative to the detriment of the appellants. A service rule provided that a civil judge could be promoted as an assistant judge provided he was below the age of 48 years. The rule was quashed as irrational, arbitrary and unreasonable, as there was no nexus between the age restriction and appointment by promotion of an assistant judge.87 A rule authorising a public sector undertaking to dismiss a permanent employee just by giving him a three months' notice, or three months' salary in lieu of notice, has been quashed by the Supreme Court as being arbitrary and unreasonable vis-a-vis Art. 14.88 A rule giving power to the government to retire a government

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servant after 30 years' service has been declared invalid under Art. 14 as conferring arbitrary power without any guidelines having been laid down.89 A rule prescribing Re 1/- per month as subsistence allowance payable to a government servant under suspension who has been sentenced to imprisonment pending his appeal against conviction till he is dismissed from service has been held to be invalid as being unreasonable, illusory and meaningless. The sum of Re 1/- per month can never sustain a civil servant for even a day much less for a month.90 Further, certain other fundamental rights in the Indian Constitution also introduce the concept of reasonableness, as for example, Art. 19. The Government of India issued a notification under S. Section 25 of the Customs Act withdrawing certain exemptions granted in favour of newsprint from the levy of customs duty. This led to the imposition of a heavy burden on the newspapers. The Supreme Court criticised this step as being inconsistent with Art. 19(1)(a). The Court ruled that the Government had issued the impugned notification without considering all the relevant circumstances. The Court said, "The power exercisable under S. 25 is no doubt discretionary but it is not unrestricted". Accordingly, the Court directed the Government to reconsider the matter of levy of customs duty on newsprint.91 A Price-fixing order can be challenged as being unreasonable under Art. 19(1)(g), but the Supreme Court has shown reluctance to assess the reasonableness of an individual price-fixing order.92 This topic is further discussed later in this book.93 On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19(1)(a) of the Constitution. It cannot, no doubt, be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant.94 (2) Rules Excluding Court's Jurisdiction Another implied restriction is that the jurisdiction of the courts should not be excluded by means of delegated legislation made in exercise of the general rule-making power. A legislature can do so by using clear words for the purpose in the statute, but a rule-making authority ought not to do so unless there is a specific grant of power to this effect in the parent statute.95 The courts jealously guard the right of the citizens to have recourse to them to settle their disputes. A very good case to illustrate this principle is Cure & Deeley.96 A statute authorised the Commissioners of Customs and Excise to make regulations for giving effect to the Act providing for "any matters for which provision appears to them to be necessary." The Commissioners made a regulation providing that where a proper return was not filed, they might themselves determine the tax due and that the amount so determined by them would be the tax payable. The regulation thus excluded the assessee from access to the courts in such a case. The Court held the regulation invalid. Excluding the subject from having access to the court to have the issues determined was held to be repugnant to the Act, its general nature, objects and scheme. The Court emphasized that the normal scheme of the Act was to define the goods and transactions which attracted the tax and leave it to the courts to decide disputes between the executive and the subject in the normal way. The regulation in question was held repugnant to this scheme of things and constituted an attempt to assume arbitrary power to determine a tax liability which was properly to be determined according to the Act with a right of appeal to the court and amounted to an attempt to oust the court's jurisdiction. Recently, the House of Lords in Raymond v. Honey ,97 has reaffirmed the principle that a citizen's right to unimpeaded access to the courts can only be taken away by express enactment. Accordingly, a rule fettering a prisoner's right of access to courts and, in particular, his right to institute proceedings in person, was held ultra vires. The principle is operative in India as well. It may also be mentioned that in India the parliamentary committee on subordinate legislation has an obligation to draw the attention of the House if court's jurisdiction is excluded through a rule.98 (3) Financial Levy Another implied restriction read by the courts into the general rule-making power is that no tax, charge, or financial levy can be imposed by any bye-law, rule or regulation, made under the general power to make

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rules, unless the parent statute under which the subordinate legislation is being made specifically authorises such a levy. A general power to make rules does not warrant imposition of a financial levy through delegated legislation. The classic case on the point is Attorney-General v. Wilts United Dairies .99 A regulation empowered the Food Controller to make orders "regulating or giving directions with respect to the production, manufacture, treatment, use, consumption, transport, storage" etc. of any article. Under this power, he issued an order banning any one dealing in milk without a licence. The appellants were granted a licence on the condition that they paid to the Controller a levy per gallon of milk purchased. Later the question arose whether the Controller could impose the levy, without being authorised to do so, by the regulation in question. Could such a power be implied? The court declared the levy invalid. The court reasoned that the executive could justify a charge upon the subject only if it could show in clear terms that the Legislature had authorised the particular charge. The principle has been accepted by the courts in India. The Supreme Court has ruled that no tax can be levied by any bye-law rule or regulation, unless the statute under which the subordinate legislation is being made specifically authorises such an imposition.1 It has been held that for a levy of fee to be valid, the power to charge fees must be expressly conferred by law on the executive.2 If such is power is not expressly given, it cannot be implied from the general power to make rules for the purposes of the Act. But, recently, the Supreme Court seems to have deviated from this wellestablished principle.3 S. 15 of the Mines & Minerals Act, 1957 empowers the State Government to grant mining leases in respect of minor minerals and to make rules to regulate the same. Before 1972, the Act contained no provision authorising the State Government to charge any royalty on mineral extraction. It was argued that in the absence of express provision in the Act for charging royalty, the government could not do so. However, the Supreme Court thought otherwise. In its opinion, the power to makes rules for regulating the grant of such leases" would "include the power to fix the consideration payable by the lessee to the lessor in the shape of ordinary rent or surface rent or dead rent and royalty." The Court went on to say : if this were not so, it would lead to the absurd result that when the Government grants a mining lease, it is granted gratis to a person who wants to extract minerals and profit from them.

Thus, the Court thought that the power to grant mining leases would include the power to charge royalty. In 1972, the Act was amended and such a power was specifically conferred on the State Government. By the rules made under the Central Excises and Salt Act, 1944, provision was made for charging of fees for the inspection of excisable goods. The Lok Sabba Committee on Subordinate Legislation pointed out that there was no enabling provision in the Act to charge fees for services rendered by the Central Excise officers. Accordingly, the Act was suitably amended in 1985. (4) Retrospectively Another implied restriction is against making rules with retrospective effect unless the parent Act expressly or by necessary implication confers a power to that effect. Parliament or a State legislature can enact laws with retrospective effect as there is no prohibition in the Constitution against ex post facto laws, except in the area of criminal law.4 But the position of a sub-ordinate legislator is different. The courts have consistently taken the view that a subordinate legislator cannot exercise a similar power and give retrospectivity to the rules made by it unless the parent statute gives it a power to do so either in express terms or by necessary implication. He has to act within the limits of the power delegated to him and a mere general power to make rules "to carry out the purposes of the Act" does not entitle him to make retrospective rules.5 The Supreme Court has stated in this regard : "... an authority which has the power to make subordinate legislation cannot make it with retrospective effect unless it is so authorised by the Legislature which has conferred that power on it."6 The reason for this proposition is that retrospective rules may prejudicially affect vested interests and rights of the people; people act on the faith of the existing law, and so rules ought not to change the character of past transactions, and it is, therefore, proper that only a representative body like the legislature, and not its delegate, does that. Accordingly, the courts declare retrospective rules invalid7 unless the rule-making authority has power to do so under the parent statute.8 Thus, a notification issued by the government investing a tehsildar with the power to recover tax with retrospective effect was held invalid

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because the parent statute gave no power to the Government to make rules with retrospective effect.9 In Bakul,10 a retrospective notification exempting cashew industry from payment of sales tax was held to be ineffective. Similarly, in State of Bihar v. Krishna Kumar Kabra ,11 the Supreme Court held that delegated legislation cannot be made operative to impose sales tax retrospectively. In Hukam Chand, the Supreme Court held that the Central Government could not amend the rules with retrospective effect as no such power was given by the parent statute.12 In another case, a legislative order having been held invalid, a fresh order was issued. A clause in the new order stated that anything done or action taken under the old order should be deemed to have been taken under the new order. The court declared the clause invalid on the ground of retrospectively because the parent Act did not confer any power on the government to issue a retrospective order.13 On the same analogy, the Supreme Court has denied power to a cooperative society to amend its bye-laws with retrospective effect, as there was nothing in the parent Act impliedly or expressly conferring power on such societies to amend their bye-laws with retrospective effect.14 In A.V. Nachane v. Union of India ,15 it was held that retrospective amendment of the rules cannot nullify the effect of the writ issued by the court earlier concerning the subject-matter. These rules would operate prospectively only as far as that judgment was concerned. However, in K. Kuppusamy v. State of T.N. ,16 the Supreme Court held that, unless expressly or by necessary implication the amendment of a rule is found to be retrospective, ordinarily it would be prospective in nature. However, in G. Nagendra v. State of Karnataka ,17 it was held that the rules can be given retrospective effect. When the government issued a notification exempting a commodity from sales tax in the middle of the financial year, but failed to specify the date from which the notification was to be operative, the court ruled that it would be operative from the beginning of the financial year. The reason adduced was that sales tax was a yearly tax under the law and it was made payable on the annual taxable turnover of a dealer. So the exemption from tax must operate for the whole year in the absence of any clear indication to the contrary. This interpretation obviously conferred a benefit on the tax payers.18 Similarly, a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees.19 A clarificatory notification can be given a retrospective effect.20 It may be mentioned here that according to one of its terms of reference, the parliamentary committee on subordinate legislation is specifically required to object to retrospective operation being given to rules without there being authority for the purpose in the relevant parent Act.21 This underlines the doubtful propriety of retrospective delegated legislation. However, the courts have relaxed the above norm somewhat in a few situations. In Musaliar,22 the Supreme Court upheld a notification dated July 26, 1949, bringing an Act enacted on July 1, 1949, into force from July 22, 1949, on the ground that the date fixed for the operation of the Act was subsequent to the date of its enactment. In Suman,23 the Supreme Court upheld a notification having retrospective effect because it was made to effectuate an order of a quasi-judicial body; it was neither unreasonable nor mala fide; it fell within the rule-making power of the concerned authority, and if it was not given retrospective effect, its very purpose would stand defeated.24 Service rules made under Art. 309 of the Constitution may be given retrospective effect as Art. 309 has been interpreted to be wide enough to enable rules being made with retrospective effect.25 The Supreme Court has argued that Art. 309 confers power on the legislature to make service rules, and failing that, the concerned government can make these rules. Thus, the government-made rules fill a "hiatus" till the legislature legislates, and the range of rule-making power of the government is co-extensive with the power of the legislature to legislate. Rules made by the executive are only transient in nature and do duty only until legislation is enacted and, therefore, these rules should have the same range of operation as a law made by the legislature which can be both prospective as well as retrospective. A service rule (made under Art. 309) gave power to the Governor to relax the rigour of the general rules in

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such manner as appeared to him to be just and equitable. The Supreme Court interpreted this rule as authorising the Governor to relax a rule with retrospective effect. The Court argued that the power was meant to be exercised in the interest of justice and equity. When some injustice came to the notice of the government, justice had to be done by exercising the power with retrospective effect, otherwise the object and purpose of the rule in question would be largely frustrated.26 The attention of the government may be drawn to a case where there has been a failure of justice. In such a case, justice can be done only by exercising the power with retrospective effect. The government power to make retrospective service rules has in practice not been exercised, with caution and circumspection. In some States, service rules have become "a plaything" in the hands of the government as rules are changed with every change in the government; sometimes rules are amended with long retrospective effect, at times, as long as seven years with a view to benefit a few specific individuals. The Supreme Court has taken note of this tendency in B.S. Yadav v. State of Haryana .27 To curb such a tendency, the Court has ruled that the retrospective operation of a rule will be struck down if there exists no reasonable nexus between the concerned rule and its retrospectively. Such a nexus may be shown either from the face of the rule or by extrinsic evidence. In Yadav, the Court refused to give retrospective operation to the rule in question as it found no nexus between the rule and its retrospectively. This is a new principle evolved by the Court to test the validity of retrospective rules trade under Art. 309. This principle comes very close to the principle, discussed above, that unreasonable rules are invalid. In Yadav, the Court advised the government not to make retrospective service rules as it causes frustration, discontent and demoralisation among the civil servants by falsifying their just expectations. Thus, the Court was moved to rule like this in order to curb the unbridled power of the government as it felt that the power was not being exercised properly. Art. 309 envisages legislation by the legislature as regards service matters and government's rule-making power in this area is "transient in nature".28 But it is surprising that even though forty years have passed since the Constitution became operative, service matters still continue to be governed by rules and administrative directions.29 However, in I.C.A.R. v. Satish Kumar ,30 the Apex Court held that retrospective operation to service rules could not be given by mere executive instructions. No comprehensive legislation to regulate service matters has so far been enacted either by Parliament or any State Legislature. The reason is that every government wants to retain flexibility in this area and does not want to give up its leverage over its employees by having fixed rules through laws made by the legislature. Art. 148(5) of the Constitution also gives rule-making power to prescribe conditions of service of persons serving in the Audit and Account Department, subject to any law made by Parliament. Service rules for these employees can be made by the President in consultation with the Comptroller and Auditor-General. Because of the difference in phraseology of Art. 148(5) and Art. 309, Art. 148(5) has been interpreted, unlike Art. 309, as not authorising retrospective rules.31 Retrospective rules have been quashed on several ground arising out of Art. 14, e.g.: taking away accrued rights;32 amendment of a service rule to the disadvantage of a class of officers;33 unfairness, arbitrariness, violation of the principles of equality. "It is open to judicial review", the Supreme Court has asserted, "whether any rule ... has violated the principles of equality and non-arbitrariness . . . "34 In Upen Chandra Gogoi v. State of Assam ,35 the Supreme Court held that the subsequent rules cannot validate the appointment made earlier contrary to the rules prevailing at the time of appointment. The Court cannot issue direction for the creation of promotion avenue retrospectively neither can it direct the Govt. to make rules by way of subordinate legislation with retrospective effect.36 Subsidy cannot be withdrawn with retrospective effect where the purchase has been made before the withdrawal of the scheme.37 A benefit that has accrued under the existing rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right which has become crystallized and no rule can be framed under the proviso to Article 309 of the Constitution which affects or impairs the vested right.38

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4. PROCEDURAL ULTRA VIRES Delegated legislation may be held invalid on the ground of procedural ultra vires. The enabling statute may require the rule-making authority to follow some procedural norms while making rules. Some of the procedural norms usually imposed are: previous publication, consultation with affected interests, publication, laying before the legislature, etc.39 The question often arises whether the rules made in disregard of the prescribed procedural norms are valid or not. An answer to this question depends on the answer to another question: whether the said procedural norms are to be regarded as directory or mandatory ? The courts take the view that while the directory procedural norms may be substantially complied with, the mandatory ones must be meticulously observed. As Mudholkar. J., has stated in Raza Buland: "While a mandatory provision must be strictly complied with, substantial compliance is sufficient with respect to a directory provision".40 Non-observance of this rule would make the rules so made ultra vires, and this is known as procedural ultra vires. Thus, to apply procedural ultra vires, the first question for the courts to decide is whether the provision in the parent Act prescribing the procedure is directory or mandatory. Usually when the statutory provision uses the word 'shall' it is regarded as mandatory and when the word 'may' is used, it is regarded as directory. But this test is not conclusive of the matter and examples can be found in the case-law where 'may' has been interpreted as mandatory and 'shall' as directory. Depending upon the context, 'shall' can either be construed literally and thus as mandatory, or liberally and so as directory. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.41 However, whether a procedural requirement is mandatory or directory is ultimately a matter for the decision of the court depending on how much importance does the court attach to the procedure required to be followed. A few examples may be mentioned here. In Raza Buland Sugar Co. v. Rampur Municipality ,42 considering the question whether a statutory provision using the word 'shall' was mandatory or directory, the Supreme Court said that such a question cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The Court observed:43 "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."44

In Kalipada v. Union of India ,45 the Supreme Court considered the nature of S s. 12(1) and 59(3) of the Mines Act, 1952. S. 12(1) provides for constitution of mining boards by the Central Government. This provision says: the Central Government "may constitute" a mining board for any territory. On the other hand, S. 59(3) lays down that before the draft regulations are published, the draft shall be referred to every mining board and it should have a reasonable opportunity of reporting as to the expediency of making the regulations and their suitability. The Supreme Court held S. 12(1) to be directory. The power of the Central Government is discretionary. In the context, "may" in S. 12(1) cannot mean 'shall'. The Court observed, "Whether or not the word 'may' means 'may' or it means 'shall' would inevitably depend upon the context in which the said word occurs...". On the other hand, S. 59(3) was held to be mandatory; reference of draft regulations to every mining board, if constituted, is a prerequisite for the validity of the regulations.46 It is immaterial whether the board makes a report or not, or sends individual opinions of the members instead of a collective report of the board.47 Generally, consultative procedure whenever laid down by a statutory provision as a prelude to rule-making is regarded as a mandatory procedure as courts attach great importance to this democratic procedure.48 In the same category falls the procedure seeking to provide an opportunity to the affected persons to file objections against any proposed rules. A rule made without providing such an opportunity will be invalid.49 A requirement for pre-publication of draft rules is regarded as mandatory.50 If a statute requires giving of three months' notice for effectuation of the rules, then giving of

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such a notice is mandatory.51 All these norms are variants of the consultative procedure. A simple laying procedure is regarded as merely directory in nature.52 A statutory provision requiring publication of delegated legislation is regarded as mandatary.53 Para 16 of the Export and Import Policy provided that the Chief Controller of Imports and Exports might specify the procedure to be followed by an exporter or importer or by any licensing, competent and other authority for the purpose of implementing the rules and orders made under the policy by means of public notice but a clarification was issued not by means of public notice. The Supreme Court held that it could not be sustained.54 It needs to be pointed out that there is some judicial dicta somewhat deviating from the general rule stated above as regards the observance of procedural norms. In some cases, it has been suggested that rules may not be invalid even if there is no compliance with a directory procedural norm.55 Such an approach makes a procedural norm, held to be directory, as completely inefficacious. There are also cases diluting the efficacy of mandatory procedural norms by suggesting that substantial, and not strict, compliance with a mandatory procedural norm would be adequate and a rule is not to be invalidated on the ground that there was no strict compliance with such a procedure.56 As a comment on this judicial approach, it may be said that it does not seem to be proper for the courts to mitigate the importance of procedural norms. When Parliament lays down a procedural norm in the statute, its intention is that it must be followed. Legislature does not lay down a procedural norm in a statute for merely ornamental purposes. Therefore, to say that a directory procedure need not be followed at all amounts to negativing legislative intent. 5. EFFECT OF ULTRA VIRES A decision by a court that a piece of delegated legislation is ultra vires makes it void and renders it incapable of ever having any effect upon the rights and duties of the concerned parties to the proceedings. Although such a decision is directly binding only as between the parties to the proceedings in which it was made, but because of the doctrine of precedent, the benefit of the decision accrues to all other persons whose legal rights have been interfered with in reliance of the law which the delegated legislation purports to declare. Until there is a challenge to the validity of some delegated legislation, and the same is upheld or invalidated by a court of law, there is presumption of validity of the delegated legislation in question as well as of legality of acts done in pursuance thereof.57 If the valid and invalid portions of a rule can be severed then only the invalid portion of the rule is quashed and the valid portion can continue to remain operative. Whether the invalid portion can be severed from the valid portion is a question for the court to decide. But if the invalid and valid parts of a rule are inextricably mixed up, then the entire rule has to be set aside.58 The Supreme Court has made an important pronouncement in Indian Express.59 A legislative order dated July, 1977, was superseded by another order dated March 1, 1981. The latter order was held to be ultra vires by the Court in the instant case. The Court has ruled that the invalidation of the latter order would not lead to the revival of the earlier order. When any provision is held to be ultra vires, it covers the field as against all its subjects who are within the jurisdiction of the said legislation and the Court.60 Challenging Rules: The question of invalidity of subsidiary legislation can be raised either directly, or, collaterally, by way of defence to a civil claim based thereon, or as a defence to a prosecution for an offence of infringing the delegated legislation in question.61 No offence is committed by infringing an invalid rule. A person can also challenge an administrative action taken under subsidiary legislation by arguingg against its validity. A void rule cannot be the basis of any administrative action. A person whose interest is adversely affected by some rules can directly challenge their vires through a court case. The court may grant an injunction or declaration or issue an order in the nature of mandamus or award damages, as may be suitable. The question of remedies has been discussed later in the book.62

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In Kishan Prakash Sharma v. U.O.I. ,63 it was observed that the validation of an invalid rule by amending the main enactment under which it is made, is a well-known legislative device approved by the Supreme Court. (1) Repeal or Modification of Rules By issuing a notification, the Govt. kept a certain rule framed earlier in abeyance. The notification was quashed by the Administrative Tribunal and the Govt. was directed to give it partial effect. The Apex Court agreed with the submission of the Govt. that the rule framed by it was legislative in character and such a rule could at any time be repealed or modified and when the matter was under consideration of the Govt., the Tribunal could not issue such a direction.64 Once an administrative order is issued, it can be revoked only by another administrative order and not by oral submission before the Court.65 The authority that frames the rules can also amend them.66 The cut-off date laid down by the office memorandum (OM) for reckoning of the criterion for promotion could not be altered or replaced by the letter of the Central Ministry to the Secretary of the Union Public Service Commission proposing an alternative date.67 6. EXEMPTION FROM OPERATION OF RULES There cannot be relaxation of the rules which are mandatory in nature and cannot be dispensed with specially in the case of a high-rise building. The position may be different in the case of one-or two-storyed building where there are minor deviation from the Rules, which do not affect public safety and convenience. The Government cannot deviate from the prescribed procedure when granting exemption from operation of Rules.68 7. STATUTORY EXCLUSION OF JUDICIAL REVIEW (a) Interrelation of Parliamentary Supervision and Judicial Review As we shall see, some statutes introduce a system of parliamentary control over delegated legislation either through the 'laying' procedure pure and simple, or coupling it with a 'negative' or an 'affirmative' resolution procedure.69 Does this parliamentary control oust the doctrine of ultra vires and that of judicial control of delegated legislation? The answer to this question is in the negative. The judicial view is that even when delegated legislation is contained in an order approved by resolution of both Houses of Parliament, the courts do retain jurisdiction to declare it invalid on the ground of ultra vires, whether procedural or substantive. Lord Diplock has explained the position well in Hoffman:70 in constitutional law, a clear distinction exists between an Act of Parliament and subordinate legislation, even though the latter is contained in an order approved by the two Houses of Parliament. Lord Diplock observes:71 "Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, ... the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted out with the legislative powers conferred on him by the previous Act of Parliament under which the order purported to be made; and this is so whether the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects)."

Recently, on the same question, the Court has stated that although Parliament is supreme, yet when Parliament authorises ministers to take executive action, "it is the duty of the courts in appropriate cases to consider whether ministers have exceeded that authority", minister's authority being derived from Parliament and contained in an Act of Parliament. The Court has pointed out that when Parliament affirms the rules, it does not give lawful authority to do something which was unlawful when it was done. Parliament could not do so by a simple motion in each House; it would need enactment of a statute. Parliament is concerned more with the merits or policy underlying the rules; the court with the legality. Parliament does not consider whether the Minister's action was or was not lawful; this is a matter for the court; unlike Parliament, it is not for the courts to approve or disapprove of minister's actions.72 A similar position obtains in India. The Supreme Court has ruled that when rules are required to be laid

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before Parliament, the doctrine of ultra vires is not excluded; rules remain subject to this doctrine and will not be valid if outside the scope of the rule-making power. The 'laying' requirement has no impact on the legal validity of the rules, or on the application of the doctrine of ultra vires to delegated legislation. Rules ultra vires the statute under which they are made, cannot be presumed to be valid, nor are the courts prevented from scrutinising the validity of the rules, because they were laid before the Legislature and they were subject to such modification, amendment or annulment as the Legislature might deem fit.73 So, in Hukam Chand,74 while holding that the rules could not be made with retrospective effect under the statute in question, the Supreme Court also ruled that the 'laying' requirement would not confer validity on such rules. Recently, in Indian Express,75 the Supreme Court has again expressed the view that the fact that a notification is required to be laid before Parliament "does not make any substantial difference as regards the jurisdiction of the court to pronounce its validity". However, as already stated, recently the Supreme Court has in some cases invoked the laying procedure to meet the challenge of excessive delegation.76 This does not seem to be a healthy development in view of the practical inefficacy of the laying procedure.77 (b) As if enacted clause At times, legislative draftsmen seek to exclude judicial review of delegated legislation by incorporating some formula or set of words within the parent statute. This is because of the propensity of the Administration to try to insulate the rules made by it from legal challenge. For this purpose, a number of formulae are used but, on the whole, it can be said that the reaction of the courts generally to such exclusionary formulae is to interpret them restrictively and in such a manner that judicial review is not totally excluded.78 No formula has been evolved as yet which may succeed in barring the courts completely from reviewing delegated legislation on the ground of ultra vires. This judicial attitude emanates from the courts' desire to preserve their jurisdiction as a safeguard against improper use of statutory powers by the Administration.79 A formula used at times in the statutes for the purpose of excluding judicial review of rules is to say that the rules enacted under the Act would have effect "as if the rules were enacted or included in the Act itself." This is known as the "as if enacted clause." The implications of this formula have caused some doubt over time. The question of interpretation of these words came before the courts in England several times. One possible explanation of these words could be that Parliament in England being sovereign, no statute passed by it could be challenged in a court, and if the rules were to be regarded as a part of the statute itself then the rules themselves would become non-challengeable and judicial review of the rules excluded. This was the initial judicial response. Initially, the House of Lords, accepted such a broad view of the clause in Institute of Patent Agents v. Lockwood .80 Lord Herschell found it difficult to explain the meaning of these words, or suggest the effect to be given to them, if notwithstanding them the rules were still open to review by the courts. He could not give any other meaning to these words except this that the rules "for all purposes of construction or obligation or otherwise" should be treated "exactly as if they were in the Act." This view thus sought to exclude the doctrine of ultra vires and accord to the rules a finality and freedom from judicial review in the presence of the "as if enacted clause" in the parent statute. But, in course of time, this judicial view came to be criticised as representing the high watermark of the inviolability of delegated legislation as it had the effect of making delegated legislation exempt from judicial review just as the statute itself was exempt therefrom.81 The House of Lords overruled the Minister of Health v. The King, ex parte Yaffe .82 Lord Dunedin took the view that it was inconceivable that such words in the Act could extend protection without limit. If the delegate went out of his province altogether, it was repugnant to commonsense that the rules would still be protected. He thus expressed the view that delegated legislation, if inconsistent with the parent Act, could not be regarded as having been made under the Act and so it could not form part of the Act itself and, thus, it could not be saved and it would be invalid. Therefore, in England, the validity of the rules remains subject to the ultra vires doctrine in spite of the presence of the 'as if enacted' clause in the parent Act. Only when the delegated legislation in question falls within the limits of the power conferred by the statute, and conforms to the conditions imposed, and is thus intra vires, that it acquires the force of law. The 'as if enacted' formula does not preclude judicial consideration of the vires of delegated legislation.83

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The 'as if enacted' formula has been used in India as well but its legal effect has not been beyond doubt because the judicial view about its implications has not so far been uniform, consistent and definitive. The Supreme Court adopted the Herscehll (or the Lockwood) doctrine in a few earlier cases,84 while in a few later cases, the Court declared the rules invalid in spite of the 'as if enacted' clause.85 In State of Kerala v. KM. Charia Abdulla and Co. ,86 the Court stated that if the rule-making authority transcends the limits of the power conferred, the rules would be invalid and the 'as if enacted' clause could attach no additional sanctity to the rules. The Court observed: "Power to frame rules is conferred by the Act upon the State Government and that power may be exercised within the strict limits of the authority concerned. If in making a rule, the State transcends its authority, the rule will be invalid, for statutory rules made in exercise of delegated authority are valid and binding only if made within the limits of the authority delegated. Validity of a rule whether it is declared to have effect as if enacted in the Act or otherwise is always open to challenge on the ground that it is unauthorised."87 This comes nearer the Yaffe rather than the Lockwood approach. The Supreme Court has again considered the matter recently.88 S. 281(2) of the Cantonments Act provides that the rules made under the Act, on publication "shall have effect as if enacted in the Act." The Appellants argued that the rules in question became a part of the statute and, accordingly, the question of their contrariety to the Act could not arise at all. Rejecting the contention as unsound, the Supreme Court observed: "It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But, before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely : (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule-making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void."

Thus, the Court ruled that in spite of S. 281(2), "any rule framed under the Cantonments Act has to fulfil the two conditions mentioned above for their validity". A rule was held ultra vires the Act in the instant case. This means that an ultra vires rule cannot be validated by such a formula. It is suggested that this is the reasonable and logical approach to take; the courts should apply the ultra vires doctrine even when the rules are declared to be effective "as if enacted in the Act." The rules constitute delegated legislation; the delegate can claim no more power than what the ambit or scope of the rule-making power conferred by the statute is; the rules ultra vires the rule-making power being void ab initio cannot form part of the statute. The Supreme Court has recently reiterated this ruling in Asstt. Collector, Central Excise v. Rantakrishnan .89 8. CONCLUSIVE EVIDENCE CLAUSE Another formula used in the statutes at times to exclude judicial review of delegated legislation is to say that when the rules are notified, the notification will be "conclusive evidence" that the rules have been duly made in accordance with the provisions of the Act. This clause is known as the "conclusive evidence" clause. The effect of such a clause on judicial review of delegated legislation is not very clear. The judicial view has been variable and not uniform. One thing is clear: this clause does not shut out all enquiry by the courts. Then, several questions arise: Will the formula oust judicial review on the ground of substantive ultra vires, or when there is complete lack of jurisdiction to make the rules in the rule-making authority? Or, will the formula exclude not substantive but procedural ultra vires only? Or, does the formula immunize rules only if minor deviations from procedure are made or when only a directory procedural norm is infringed? According to the CMP, "the protection afforded even by this clause is not limitless".90 The position seems to be well settled that the 'conclusive evidence' clause cannot touch a case where there is complete lack of jurisdiction in the concerned authority to frame the impugned rules.91 As will be seen later, the courts never condone jurisdictional error in a decision-making authority even in the face of a privative clause.92 This means that the clause will not cure substantive ultra vires. Since 'as if enacted' clause, as noted above, is not taken to cure substantive defects in the rules, similar should be the case in respect of 'conclusive evidence' clause, which ought to be treated no higher than that. The clause does cure some procedural defects in the rule-making process. Even on the phraseology of the provision it would appear to be so, for the clause in question only shows that the rules have been 'duly

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made', and this indicates reference to rule-making procedure only. If the statute prescribes some procedure for the making of the rules, and the rule-making authority fails to observe some of the steps in the prescribed procedure, the 'conclusive evidence' clause may be invoked to protect the rules from being invalidated. But the question is how far deviation from the prescribed procedure will be tolerated by the courts. Will the clause in question cure infringement of a mandatory, or only of a directory, procedural requirement? The judicial views expressed so far seem to be equivocal. In some cases, a broad view has been expressed and, in some, a narrow view. In Raza Buland,93 Hidayatullah, J., talking about such a clause said: "It lays down emphatically a rule of evidence which precludes courts from making inquiries into the minutiae of procedure with a view to declaring the imposition invalid." But he raised the question whether the clause in question enacted an absolute rule of evidence or one merely related to 'venial defects, errors or omissions'. It appears to be established that if the procedural defects are not of a fundamental nature, but are of a minor or directory nature, and have not caused any substantial prejudice to the persons affected by the impugned rules, then these defects will be cured by such a clause. In Raza Buland, rules were saved by invoking the 'conclusive evidence' clause because there was substantial compliance with the 'directory' procedural norms laid down in the relevant statute for making of bye-laws by the concerned municipality.94 In Raza Buland,95 an argument was raised on behalf of the concerned municipality that the clause in question would validate a rule as soon as notified even if no procedural provision had been complied with at all. The Supreme Court left the question open saying that "the question in this form does not arise before us directly". However, the Court indirectly expressed its disapproval of the argument in this broad form, for it observed : If S.135(3) means that where there is substantial compliance with the provisions of the Act that would be conclusive proof that they have been complied with there can be no valid objection to such a provision. But if the section is interpreted to mean ... that even if there is no compliance whatever with any mandatory provision relating to imposition of tax and the only thing proved is that a notification under S. 135(3) has been made, the tax would still be good, the question may arise whether S. 135(3) itself is a valid provision. For present puposes it is unnecessary to decide that question. ...."

There are some other cases in which a similar view has been taken, viz., that the 'conclusive evidence' clause can cure deviation from directory, but not mandatory, procedural norms.96 For example, the Supreme Court held so in Sitapur Municipality v. Prayag Narain .97 The factual situation in this case was as follows. Ss. 131-135 of the U.P. Municipalities Act, 1916 laid down the procedure for imposing a tax by a municipality. First, the municipal board must pass a special resolution framing the preliminary tax proposal. The Sitapur Municipality passed such a resolutions to levy water tax. Secondly, the board was required to prepare draft rules, and the Sitapur Board took this step as well. Thirdly, the board was required to publish, in the prescribed form. Sitapur Municipality published the draft rules along with a notice in a local newspaper, but the proposal as such was not published separately, though it could be found in the draft rules published. Objections filed by the inhabitants against the proposed tax were duly considered by the Sitapur Board and it finally approved the tax proposal in a modified form. Under S. 132(2), it was necessary for the Board to publish the modified proposal, and deal with the objections received against it. The Sitapur Board failed to take this step. Nevertheless, the proposal was duly sanctioned by the concerned authority. Thereafter, as required by S. 134(2), the Sitapur Board passed a special resolution directing imposition of the tax, but this resolution was not published in the prescribed manner. Thereafter, under S. 135(2), the concerned authority notified the imposition of the tax in the official gazette. S. 135(3) provided that "a notification of the imposition of a tax under sub-section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act". The levy of the water tax was challenged on the ground of non-publication of the preliminary proposal separately, non-publication of the modified proposal according to S. 132(2), and the non-publication of the special resolution directing imposition of the tax. Holding the levy valid, the Supreme Court pointed out that the procedural defects were not of a fundamental character as no substantial prejudice had been caused thereby to the inhabitants of the municipality. Omission to publish the original proposal separately was a mere irregularity and the object of the publication, viz., to inform the inhabitants of the proposal so that they could file their objections thereto had been fully achieved. Non-publication of the modified proposal did not cause any prejudice to the inhabitants as they had full opportunity to raise objections to the proposed tax and the modified proposal was to levy the tax at a reduced rate. Non-publication of the special resolution also did not create an infirmity, and was a mere irregularity as the inhabitants had no right to file objections against it. Whatever the procedural defects, they were cured by the

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issue of the notification under S. 135(2) which was 'conclusive proof' that all necessary steps for the imposition of the tax had been taken in accordance with the provisions of the Act. It is thus clear from the tenor of the decision that the 'conclusive evidence' clause cures only procedural irregularities and not deviation from any fundamental procedural norm. However, there are some cases in which judicial dicta may be found conceding a wider converge to the 'conclusive evidence' clause. For example, in Berar Swadeshi Vanaspati,98 the Supreme Court said: "Having been notified in the Gazette it is conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it cannot be challenged on the ground that all the necessary steps had not been taken." This statement would show that the clause in question can cure even infringement of mandatory procedural norms. But in this case the Court did not discuss the question at all but facilely assumed that the clause meant so. Again, in Maunath Bhanjan Municipality v. S.C. Mills ,99 the Supreme Court considered the scope of the provision in the parent Act, saying that a notification published under it would be 'conclusive proof' that the tax had been imposed in accordance with the provisions of this Act, and the Court stated, expounding the scope of the clause, that "when a probative effect had been given by law making the notification of the imposition of the tax 'conclusive proof' that the tax had been imposed 'in accordance with the provisions of this Act', no evidence could be allowed to combat that fact, and we have no hesitation in holding that the imposition was according to law." 100

This formulation as regards the effect of the 'conclusive evidence' clause would appear to be very broad; it may seem to suggest that the clause would immunize even a breach of a mandatory procedure, or lack of rule-making power in the concerned authority. But when viewed in the context of the specific facts and issues in the case, it would seem that it was not meant to be so. The notification in question was published under S. 300 of the Act; it was challenged on the ground that it ought to have been published under S. 135 of the Act. The Court held by-passing the objection raised that in "fact and substance" the impugned notification was issued under S. 135, and "it would not matter if it did not make a specific reference to that sub-section and made a reference to S. 300 instead." The Court ruled: "It is the nature of the notification which is decisive of the section under which it has been issued", and then it went on to state that this defect would also be cured by the 'conclusive evidence' clause. At another place, the Court also said that the clause would cure 'technical' defects. Thus, the defects actually sought to be cured were merely technical and minor in nature although the observation in question conveys a much broader sense. Thus, the question of the effect of the 'conclusive evidence' clause on judicial review of delegated legislation so far remains enigmatic. The courts do not appear to be very clear on this point. If the clause is taken merely to protect and immunize the rules against attacks on the ground of deviation from procedural norms of a directory nature, then the clause does not serve much of a purpose, for, even in the absence of such a clause, the courts would not quash rules when only directory, and not mandatory, procedural norms are not observed meticulously by the rule-making authority.1 But if the clause is given a broader connotation, then it will tantamount to diluting the doctrine of ultra vires and with it the judicial review of delegated legislation, and this may effectively nullify whatever safeguards may have been woven into the fabric of the parent statute against misuse of the rule-making power. Broad interpretation of the clause is against the general tenor of Administrative Law and also against the general judicial policy of preserving judicial view and interpreting exclusionary clauses restrictively. As will be seen later, the courts never condone jurisdictional error in a decision-making body even in the face of a privative clause.2 The courts ought to tolerate only insignificant deviations from directory procedural norms and not cases of substantive ultra vires or of deviation from mandatory procedural norms, such as, consultative process.3 It is suggested that the correct view was propounded by the Supreme Court in Raza Buland,4 and the clause ought not to be given any wider coverage than that. As it is, the control over delegated legislation in India is already very weak, and, therefore, the courts should have power to intervene in cases of non-observance of significant or mandatory provisions of the law, e.g., when the law provide. for inviting objections against the proposed rules and the objections are either not invited at all, or are not considered by the rule-making authority and a democratic procedural norm is violated.5 The best thing, of course, would be for the legislature to avoid using such clauses in the statutes. The clause either serves no purpose or may be mischievous in scope. If the clause is interpreted restrictively as curing non-confermity with directory procedural norms only, then it serves no

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purpose for delegated legislation is in any case immune against minor breaches of directory procedural norms. If the clause is interpreted broadly, it becomes objectionable as it negates mandatory procedural requirements and other substantive restrictions contained in the law, thus freeing the executive from any legal restraints in the matter of rule-making. What purpose is really served if the law, on the one hand, lays down procedural and substantive safeguards, and, on the other hand, makes the courts powerless to enforce them and take cognizance of any breaches of such safeguards in making delegated legislation. The CMP has characterised the "conclusive evidence" clause as "objectionable" and has expressed a doubt whether it was ever 'justified'.6 (a) Bagla Case It has already been stated that delegated legislation which is intra vires the parent Act may yet be held to the ultra vires if it comes in conflict with any other statute. At times, a statute may contain words so as to protect rules made under it from being invalidated on the ground of inconsistency with any other statute. For example, such a formula was upheld by the Supreme Court in Bagla.7 The formula was to be found in the Essential Supplies Act, 1946, and is now present in the Essential Commodities Act, 1955. Such a formula was again upheld by the Supreme Court in Nachane.8 S. 48(2)(cc) of the Life Insurance Corporation Act, 1956, authorises the Central Government to make rules in respect of the terms and conditions of service of the employees and agents of the Corporation. Sub-section (2)(c) provides that these rules "shall have effect notwithstanding anything contained in the Industrial Disputes Act or any other law for the time being in force. The provision was challenged on the ground of excessive delegation of legislative power. It was argued that "repealing a law" was an "essential legislative function" and no legislative policy or guidelines were laid down in the parent Act as regards the extent to which the rule-making authority would be competent to override any statute. The Supreme Court rejected the contention. Citing Bagla, the Court said that what was said there regarding S. 6 of the Essential Supplies Act could very well be said as regards S. 48(2c) which is similar in terms insofar as it authorises the Central Government to make rules by-passing the existing laws." The Court rationalized the situation be saying, as it had said earlier in Bagla, that it was not really rules that overrode the existing laws but the power to override the existing laws was enacted be Parliament itself. The Court found the police of the Act in the preamble as offering sufficient guidance to the Central Government in exercising its rule-making power under that Act. Finally, the Court referred to S. 48(3) requiring laying of rules before Houses of Parliament and authorising them to make any modifications in the rules. "This makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and control over its delegate," said the Court. This however is only a formalistic argument as the 'laying' procedure does not, in effect, lead to any 'strict vigilance and control' by Parliament over its delegate.9 Nevertheless, the Court did rule that no rules could be made with retrospective effect so as to nullify the effect of the writ issued by the Supreme Court in an earlier case. 9. SOME MISCELLANEOUS PRINCIPLES (a) Repugnance between rules Subordinate legislation enacted under one Act will impliedly repeal the earlier subordinate legislation made under another Act if there is repugnancy between the two pieces of delegated legislation, i.e. if both deal with the same subject-matter and both cannot stand together and operate simultaneously. This will be so even if the earlier delegated legislation is by the State Government and the latter by some other official. There is no question of one delegate being lower than the other in status. In other words, the status and character of the rule-making authority would be irrelevant as both are delegates of the legislature. In the instant case, the rules and bye-laws made by the municipality in 1965 under the Gujarat Municipalities Act, 1964, were allowed to prevail over the earlier rules made be the State Government under an ordinance of 1949, as both covered the same ground.10 In 1925, under the U.P. Municipalities Act, 1916, the U.P. Government made octroi rules concerning levy of octroi duties by the municipalities. In 1963, under the same Act the Government made separate rules for assessment and collection of octroi by the Bareilly Municipality. The Supreme Court ruled that so far as the Bareilly Municipality was concerned, the 1963 rules superseded the 1925 rules.11

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(b) Void Rule A rule which is void remains void and it does not matter that it has remained in force for long without being challenged. A rule which is void remains void whether it has been acquiesced in or not.12 A void rule does not become valid by lapse of time. (c) Notes At times, explanatory notes are appended to the rules.13 The judicial attitude is to treat these notes as part of the rules. The Rajasthan Government made some service rules under Art. 309 of the Constitution,14 and some explanatory notes were appended thereto. The Supreme Court held in Tara Singh v. State of Rajasthan 15 that the notes had legal effect similar to that of the rules themselves because the notes were made by the government contemporaneously with, and were promulgated along with, the rules in exercise of its legislative powers. The function of the notes was to provide procedure, control discretion and fill up the gaps where the rules were silent. The notes were of aid not only in applying the rules but also in interpreting their true import and considering their validity under the Constitution. (d) Non-exercise of Rule-making Power A usual practice for legislatures in India is to pass a statute and then leave it to the executive to bring it into force at some future date. At times, the Government may be empowered to bring different provisions of a statute into force on different dates. What happens if the Government sleeps over the matter and does not bring the Act into force for long? Such a question was raised before the Supreme Court in A.K. Roy v. Union of India .16 Parliament enacted the 44th Amendment of the Constitution adding some more safegurds to Art. 22 for the benefit of those confined in preventive detention. However, instead of bringing the Amendment into force immediately the Central Government was given discretion to bring it into effect at a future date. For long the Act was not brought into force. The question was whether the Court could issue mandamus to compel the Government to bring the Act into force. The Court refused to accept the argument that the Government's failure to bring the Act into force was mala fide.17 The Court ruled by a majority of three to two that it could not compel the executive to bring the Act into force. The power was given to the government in subjective terms and so it was ultimately a matter which lay in the hands of Parliament. Parliament can compel the government to bring the Act into force if it so likes. If Parliament lays down an objective standard to guide and control the government's discretion to bring the Act into force, then the Court can compel the government to discharge the function assigned to it by Parliament. On the other hand, the dissenting judges took the view that the Court could itself issue mandamus requiring the Act to be brought into force when the same had not been done after the lapse of a reasonable period (here two and half years) and when there was no practical or administrative difficulty in this regard. But in Aeitemesh Rein v. India ,18 where a provision of the Advocates Act had not been brought into force for nearly 27 years, the Supreme Court ruled that while it would not issue mandamus directing the government to bring the provision into force, it would issue mandamus directing the government to consider the question whether the time for bringing the provision into force had arrived or not. The rule-making power is granted by the statutes to the Administration in permissive terms. It often happens that the executive does not issue rules for years under provisions enabling it to make rules.19 Can the government be compelled by the courts to make the rules? On the analogy of Roy, mentioned above, it may be said that the courts will not order the government to exercise its rule-making power if it chooses not to do so. The Supreme Court has now ruled in Indian Express20 that mandamus cannot be issued to a subordinate rule-making authority to enact or not to enact a rule which the authority has power to make. The Court has also ruled that pending the making of rules, the government may carry on by issuing directions.21 In A.S. Narayana Deekshitulu v. State of A.P. ,22 the Supreme Court observed that it is settled law that existence of rules is not a condition for the Act to become operative. This has further reduced any urgency to make rules. However, the matter is taken cognisance of by the Committees on Subordinate Legislation. They have been critical of the government's inaction in the matter of making rules.23

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(e) Repeal or invalidation of the parent act As delegated legislation is conceptually an extension of its parent legislation, the rules can subsist only so long as the parent Act survives. If the parent Act is repealed or invalidated, the delegated legislation made thereunder automatically falls to the ground. However, in a few cases it may so happen that the repealing Act may continue the rules made under the Act being repealed till the new rules are framed.24 (f) Interpretative Rules At times, the Administration may issue interpretative rules, i.e., rules interpreting or clarifying statutory provisions. Through these rules, the Administration seeks to give its own interpretation of a statutory provision. The system of issuing interpretative rules is widespread in the U.SA. where administrative agencies issue "interpretations, rulings, or opinions upon the laws they administer, without any specific authorisation to do so."25 The system prevails in England as well to some extent.26 Such interpretative rules issued by the Administration to clarify statutory provisions do not have any final effect because what is binding on the courts is the statute and not any interpretation put on it by the Administration. In our terminology, the interpretative rules are more akin to directions. In actual practice, however, a good deal of value is attached to the administrative interpretation of a statutory provision which may have held the field for considerable length of time, and the courts may be guided by it, to some extent, though the courts are free to put their own meaning on a statutory provision rather than feel bound by the, administrative view thereof. For example, in Oudh Sugar Mills v. State of M.P. ,27 the High Court pointed out that the interpretation put by government for a considerable length of time may have some value; it may be considered as a relevant matter or an effective guide to a proper interpretation of the statutory provision. In the instant case, however, the Court rejected the administrative interpretation of a rule by characterising it as "an untenable interpretation, which is opposed to commonsense interpretation and which in effect would amount to rioting with commonsense." As the Supreme Court has said in another context: "There can be no estoppel against the statute."28 (g) Power to relax rules The note appended to the Note 10(3) of the U.P. Jal Nigam Engineers (Public Health Branch) Services Regulations, 1978 gives lever for relaxation of conditions of recruitment and enables adoption of any other criteria for the selection and promotion of Junior Engineers and Computers to the post of Assistant Engineer. In other words, it enabled to relax the rules prescribed for passing the qualifying examination for selection to the posts of Assistant Engineers. The Supreme Court observed that it ran contrary to the settled service jurisprudence and the law laid down by the Apex Court itself and deleterious to augment efficacy of service and would dry out the source to improve excellence and honest service. As the said note was not the subject-matter of attack, the Court refrained from further observation.29 In an auction-purchase, the bidder deposited the 25%of the sale price immediately but failed to pay the balance of 75%within the fixed period. It was held that the sale became void and neither the chief officer nor the Municipal Council had power to relax or even condone the delay and accept the delayed payment.30 Relaxation cannot be read into a provision where the rule itself mandates the maximum period of study leave.31 In Haridas Parsedia v. Urmila Shakiya ,32 the Supreme Court held that once the power of relaxation by Rules framed under Article 309 was available to the Government, the said power exercised either by a general administrative order or by special administrative order. (h) Delay in trial In Raj Deo Sharma v. State of Bihar ,33 the Supreme Court held that the trial Courts cannot be permitted to flout the mandate of Parliament to continue examination of witnesses from day-to-day until the witnesses in attendance have been completed unless the Court has very cogent and strong reasons. The Apex Court directed the High Court to remind the trial judges through a circular of the need to comply with this provision

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of Section 309 of the CrPC, 1973 in letter and spirit and to take note of the conduct of any particular trial judge who violates the legislative mandate and to adopt such administrative action against the delinquent judicial officer as law permits.

1 See under heading : Need for safeguard, Chapter III . 2 (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 689 (para 75) : AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 3 (2003) 3 SCC 1 [LNIND 2003 SC 164] [LNIND 2003 SC 164] [LNIND 2003 SC 164], 10 (para 20) : AIR 2003 SC 1191 [LNIND 2003 SC 164] [LNIND 2003 SC 164] [LNIND 2003 SC 164]. 4 Roopal v. Lt. Governor, AIR 2000 SC 594 [LNIND 1999 SC 1149] [LNIND 1999 SC 1149] [LNIND 1999 SC 1149]: (2000) 1 SCC 644. 5 Secretary, Ministry of Chemicals & Fertilizers v. Cipla Ltd., (2003) 7 SCC 1 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625], 10 (para 4.3) : AIR 2003 SC 3078 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625]. 6 Secretary, Ministry of Chemicals & Fertilizers v. Cipla Ltd., (2003) 7 SCC 1 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625], 9 (para 4.1) : AIR 2003 SC 3078 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625]. 7 State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210], 528 (para 15). 8 Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 [LNIND 2001 SC 2753] [LNIND 2001 SC 2753] [LNIND 2001 SC 2753]: (2002) 2 SCC 188. 9 State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210], 528-29 (para 16), relying on Indian Express Newspapers (Bombay) (P.) Ltd. v. Union of India, (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337] : 1985 SCC (Tax) 121; Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351]; Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152], 334 : AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]; St. John's Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175] : AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]; Rameshchandra Kachardas Porwal v. State of Maharashtra, (1981) 2 SCC 722 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86] : AIR 1981 SC 1055 [LNIND 1981 SC 212] [LNIND 1981 SC 212] [LNIND 1981 SC 212]; Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] : AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]. See also Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 490, 511 (paras 117 and 201). 10 M.P. Jain, Indian Constitutional Law (1987). 11 AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND 1954 SC 1]: 1954 SCR 803. 12 AIR 1950 SC 163 [LNIND 1950 SC 24] [LNIND 1950 SC 24] [LNIND 1950 SC 24]: 1950 SCR 566. Also see, Md. Faruk v. State of M.P., AIR 1976 SC 93 : (1969) 1 SCC 853; Jain, Cases, Chapter IV, for an example of an unconstitutional rule under Art. 19(1)(g). 13 AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375. 14 Harishankar Bagla v. State of M.P., AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: (1955) 1 SCR 380 : 1954 Crlj 1322; Jain, Cases, Chapter III, Sec. D. 15 M.P. Jain, Indian Constitutional Law, 471-497 (1987). 16 See, for example: Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263 [LNIND 1985 SC 196] [LNIND 1985 SC 196] [LNIND 1985 SC 196]: 1985 SCC (Supp) 72; Nidmarti v. State of Maharashtra, (1986) 2 SCC 534 [LNIND 1986 SC 111] [LNIND 1986 SC 111] [LNIND 1986 SC 111]. Sankar Mukherjea v. Union of India, AIR 1990 SC 532 [LNIND 1989 SC 570] [LNIND 1989 SC 570] [LNIND 1989 SC 570]: 1990 (2) LLJ 443 : 1990 Supp SCC 66. Also, infra, under Unreasonableness, under this chapter. 17 Senior Supdt. of Post Office v. Izhar Hussain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318; Jain, Cases, 432. Also see, infra, under Directions, Chapter VIII and Discretionary Powers, Chapter XVII-XIX ; Jain, Cases, Chapter XV .

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18 See, O.P. Bhandari v. Indian Tourism Development Corp. Ltd., AIR 1987 SC III : (1986) 4 SCC 337 [LNIND 1986 SC 353] [LNIND 1986 SC 353] [LNIND 1986 SC 353] : 1986 (2) LLJ 509 [LNIND 1986 SC 353] [LNIND 1986 SC 353] [LNIND 1986 SC 353]; Delhi Transport Corp. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1991 (1) LLJ 395 : 1991 Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]. Also see, infra, Chapter XVIII . 19 AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 542 (paras 73 and 75) : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 20 Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304, 314 (para 13) : AIR 1996 SC 911, relying on Indian Express Newspapers (Bombay) (P.) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]: (1985) 1 SCC 64 and State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400] : AIR 1987 SC 251 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400]. 21 Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304, 313 (para 12) : AIR 1996 SC 911. 22 Madanlal Sethi v. State of M.P., (1997) 5 SCC 141 [LNIND 1997 SC 558] [LNIND 1997 SC 558] [LNIND 1997 SC 558], 147 (para 13) : AIR 1977 SC 2264. 23 Central Organisation of T.N. Electricity Employees v. T.N. Electricity Board, (2005) 8 SCC 729 [LNIND 2005 SC 831] [LNIND 2005 SC 831] [LNIND 2005 SC 831], 745 (para 50). 24 See, infra, under Judicial Control and Discretionary Powers, Chapters XVII XIX . 25 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 332 (para 12) : AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]. See also Molar Mal v. Kay Iron Works (P.) Ltd., (2000) 4 SCC 285 [LNIND 2000 SC 476] [LNIND 2000 SC 476] [LNIND 2000 SC 476], 297 (para 15) : AIR 2000 SC 1261 [LNIND 2000 SC 476] [LNIND 2000 SC 476] [LNIND 2000 SC 476]. Presumption of intra vires T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 [LNIND 2002 SC 681] [LNIND 2002 SC 681] [LNIND 2002 SC 681], 585-86 (para 155) : AIR 2003 SC 355 [LNIND 2002 SC 681] [LNIND 2002 SC 681] [LNIND 2002 SC 681]. 26 P.P. Craig: Administrative Law, 5th Edn., 2003, p. 389. 27 AIR 1983 SC 550 [LNIND 1983 SC 96] [LNIND 1983 SC 96] [LNIND 1983 SC 96]: (1983) 2 SCC 402. See also Myurdhwaj Co-operative Group Housing Society Ltd. v. Presiding Officer, Delhi Co-operative Tribunal, (1998) 6 SCC 39 [LNIND 1998 SC 603] [LNIND 1998 SC 603] [LNIND 1998 SC 603], 48 (para 11) : AIR 1998 SC 2410 [LNIND 1998 SC 603] [LNIND 1998 SC 603] [LNIND 1998 SC 603]. 28 State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619], 1761 : (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]. 29 Greater Bombay Municipal Corp. v. Nagpal Printing Mills, AIR 1988 SC 1009 [LNIND 1988 SC 174] [LNIND 1988 SC 174] [LNIND 1988 SC 174]: (1988) 2 SCC 466. See also Major Radha Krishan v. Union of India, (1996) 3 SCC 507 [LNIND 1996 SC 2721] [LNIND 1996 SC 2721] [LNIND 1996 SC 2721], 511 (para 9) : AIR 1996 SC 3091 [LNIND 1996 SC 2721] [LNIND 1996 SC 2721] [LNIND 1996 SC 2721]. 30 Delhi Science Forum v. Union of India, (1996) 2 SCC 405 [LNIND 1996 SC 421] [LNIND 1996 SC 421] [LNIND 1996 SC 421], 417 (para 13) : AIR 1996 SC 1356 [LNIND 1996 SC 421] [LNIND 1996 SC 421] [LNIND 1996 SC 421]. 31 Supra, Chapter IV, 67-70. 32 Infra, this Chapter. 33 Infra, this Chapter. 34 Kunj Behari Lal Butail v. State of U.P., (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], para 15 : AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], Following Supreme Court Employees' Welfare Assn. v. U.O.I., (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1999 SC 334 and General Officer Commanding-in-Chief v. Subhash Chandra Yadav (Dr.), (1988) 2 SCC 351 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621] : AIR 1988 SC 876 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621]; relying on Sant Saran Lal v. Parsuram Sahu, AIR 1966 SC 1852 [LNIND 1965 SC 181] [LNIND 1965 SC 181] [LNIND 1965 SC 181]: 1962 Supp (2) SCR 189 and Bhim Singhji v. U.O.I., (1981) 1 SCC 166 : AIR 1981 SC 1982 [LNIND 1980 SC 347] [LNIND 1980 SC 347] [LNIND 1980 SC 347]. 35 Consumer Action Group v. State of T.N., (2000) 7 SCC 425 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130], para 18 : AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130]. 36 Supra, Chapter IV. 37 CMP Report, 65.

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38 Supra, Chapter IV, 56 et seq. 39 Maharashtra S.B.O.S. & H.S. Education v. Paritosh, AIR 1984 SC 1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]: (1984) 4 SCC 27; Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 230, 254-57; Jain, Cases, Chapter IV, Sec. B (i). 40 I.R.C. v. National Federation of Self-Employed and Small Businesses, (1981) 2 All ER 93 at 107. 41 AIR 1985 SC 421 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572]: (1985) 2 SCC 197; Jain, Cases, Ch, III, Sec. I. 42 Shree Meenakshi Mills Ltd. v. Union of India, AIR 1974 SC 366 [LNIND 1973 SC 360] [LNIND 1973 SC 360] [LNIND 1973 SC 360]: (1974) 1 SCC 468. 43 Hoffman-La Roche v. Secretary of State for Trade and Industry, (1975) AC 295; Jain Cases, Chapter XI, 93b. 44 Hoffman-La Roche v. Secretary of State for trade and industry, (1975) AC 295, 366. Also see, Mceldowney v. Forde, (1971) AC 632. 45 AIR 1986 Ker 86 at 99. 46 Also see, State of U.P. v. Babu Ram, AIR 1961 SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292]: 1961 (1) Crlj 773 : 1970 (1) LLJ 670. 47 See, next Chapter. 48 State of U.P. v. Janata Industrial Udyog, AIR 1991 SC 477 : 1991 Supp (2) SCC 506. 49 K.C. Pazhanimala v. Kerala, AIR 1969 Ker 154 [LNIND 1968 KER 130] [LNIND 1968 KER 130] [LNIND 1968 KER 130]. 50 See Senior Supdt. of Post Office v. Izhar Husain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318; Jain Cases, 432, infra, Chapter XVIII . Also see State of Punjab v. Hari Kishan, AIR 1996 SC 1081 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118]: (1996) 2 SCC 98; Channagiri v. District Magistrate, AIR 1971 Mys 244; State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: (1970) 2 SCC 744. 51 Bar Council of Delhi v. Surjeet Singh, AIR 1980 SC 1612 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC 224]: (1980) 4 SCC 211. 52 State of Punjab v. Hari Kishan, AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362]: 1966 (2) SCR 982; Channagiri v. District Magistrate, AIR 1971 Mys 244; State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: (1970) 2 SCC 744; also see, infra, Chapter XIX . 53 B.B. and D. Mfg. Co. v. E.S.I. Corp., AIR 1972 SC 1932. 54 Atlas Cedes Ltd. v. State of Haryana, AIR 1972 SC 121 [LNIND 1971 SC 671] [LNIND 1971 SC 671] [LNIND 1971 SC 671]: (1971) 2 SCC 564. 55 See, for some old cases on ultra vires: Yassin v. Town Area Committee, AIR 1952 SC 115 [LNIND 1952 SC 11] [LNIND 1952 SC 11] [LNIND 1952 SC 11]: 1952 SCR 572; Tahir Hussain v. Dist. Board, Muzaffarnagar, AIR 1954 SC 630 [LNIND 1954 SC 289] [LNIND 1954 SC 289] [LNIND 1954 SC 289]; Ganpati Singh v. State of Ajmer, AIR 1955 SC 188 [LNIND 1954 SC 168] [LNIND 1954 SC 168] [LNIND 1954 SC 168]: 1955 (1) SCR 1065. 56 General Officer, Commanding-in-Chief v. Suphash Chandra, AIR 1988 SC 877 : 1988 (2) LLJ 345 : (1988) 2 SCC 351 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621]. 57 Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1918 : 1972 (2) LLJ 259 : (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]. 58 AIR 1996 SC 2513 [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26]: (1996) 10 SCC 136. 59 (1996) 10 SCC 136, 142 (para 7) : AIR 1996 SC 2513 [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26]. 60 State of Bihar v. Ranchi Timber Traders' Association, (1996) 5 SCC 276 [LNIND 1996 SC 1098] [LNIND 1996 SC 1098] [LNIND 1996 SC 1098], 278 (para 4) : AIR 1996 SC 2774 [LNIND 1996 SC 1098] [LNIND 1996 SC 1098] [LNIND 1996 SC 1098]; See also Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board, (1998) 4 SCC 470 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405], 488 (para 35) : AIR 1998 SC 1715 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405]; Regns. 25 and 31(4) as amended by Regulation dated 3.2.2000, held intra vires Section 58 of Electricity Regulatory Commissions Act, 1998, W.B. Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632], 740 (para 50) : AIR 2002 SC 3588 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632].

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61 Chintu Nayak v. State of Jharkhand, (2005) 13 SCC 415, 416 (para 3). See also National Centre for Human Settlement & Environment v. U.O.I., (2005) 12 SCC 369, 370 (para 2). 62 Competent Authority v. Barangore Jute Factory, (2005) 13 SCC 477 [LNIND 2005 SC 928] [LNIND 2005 SC 928] [LNIND 2005 SC 928], 483-85 (para 5). 63 Purxotoma v. Union of India, AIR 1970 Goa 35; Tahir Hussain v. District Board, Muzaffarnagar, AIR 1954 SC 630 [LNIND 1954 SC 289] [LNIND 1954 SC 289] [LNIND 1954 SC 289]. 64 Narendra Kumar v. Union of India, AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375; Santosh Kumar Jain v. Union of State, AIR 1951 SC 201 [LNIND 1951 SC 16] [LNIND 1951 SC 16] [LNIND 1951 SC 16]: 1951 Crlj 757 : 1951 SCR 303. 65 AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116. 66 Minerva Talkies, Bangalore v. State of Karnataka, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176; Jain, Cases, Chapter IV, 170. 67 AIR 1981 SC 711 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60]: (1981) 2 SCC 205. Also see, Jain, Cases, Chapter IV, Sec. B (i), 164. 68 Keshav Talpade v. Emperor, AIR 1943 FC 1 at 8. 69 Emperor v. Sibnath Banerji, AIR 1954 PC 156 at 160. Also see, Santosh Kumar v. State, AIR 1951 SC 201 [LNIND 1951 SC 16] [LNIND 1951 SC 16] [LNIND 1951 SC 16]: 1951 Crlj 757 : 1951 SCR 303; Afzal Ullah v. State of U.P., AIR 1964 SC 264 [LNIND 1963 SC 220] [LNIND 1963 SC 220] [LNIND 1963 SC 220]: (1964) 4 SCR 991 : 1964 (1) Crlj 156; Kasinathan v. Govt. of Madras, AIR 1967 Mad 21 [LNIND 1965 MAD 355] [LNIND 1965 MAD 355] [LNIND 1965 MAD 355]; Om Prakash v. Union of India, AIR 1971 SC 771 : (1970) 3 SCC 942; K. Ramanathan v. State of Tamil Nadu, AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116; Minerva Talkies, Bangalore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176; Ajay Canu v. Union of India, AIR 1988 SC 2027 [LNIND 1988 SC 417] [LNIND 1988 SC 417] [LNIND 1988 SC 417]: (1988) 4 SCC 156; Asstt. Collector, Central Excise v. Ramakrishnan, AIR 1989 SC 1831 : 1989 Supp (1) SCC 541; D.K. Trivedi & Sons v. State of Gujarat, AIR 1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50]: 1986 Supp SCC 20; Jain, Cases, Chapter IV, 241. 70 Regina v. St. A.H.E.. School, AIR 1971 SC 1920 [LNIND 1971 SC 178] [LNIND 1971 SC 178] [LNIND 1971 SC 178]: (1972) 4 SCC 188. 71 Foremost Dairies v. State, AIR 1986 Raj 116. 72 Afzal Ullah v. State of U.P., AIR 1964 SC 264 [LNIND 1963 SC 220] [LNIND 1963 SC 220] [LNIND 1963 SC 220]: 1964 (1) Crlj 156 : 1964 (4) SCR 991 [LNIND 1963 SC 220] [LNIND 1963 SC 220] [LNIND 1963 SC 220], followed in Om Prakash v. State of U.P., (2004) 3 SCC 402 [LNIND 2004 SC 1328] [LNIND 2004 SC 1328] [LNIND 2004 SC 1328], 409 (para 12); P.V. Mani v. Union of India, AIR 1986 Ker 86; Indian Aluminium Co. v. K.S.E. Board, AIR 1975 SC 1967 [LNIND 1975 SC 225] [LNIND 1975 SC 225] [LNIND 1975 SC 225]: (1975) 2 SCC 414; M.B. Municipality v. S.C. Mills, AIR 1977 SC 1055 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60]: (1977) 2 SCC 875; also see, infra, under 'Conclusive Evidence' Clause. 73 H.C. Suman v. Rehabilitation Ministry Employees' Coop. House Building Society Ltd., (1991) 4 SCC 490, 505 : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]; Pournami Oil Mills v. State of Kerala, AIR 1987 SC 590 [LNIND 1986 SC 529] [LNIND 1986 SC 529] [LNIND 1986 SC 529]: 1986 Supp SCC 728; Asstt. Commr., Commercial' Taxes v. Dharmendra Trading Co., AIR 1988 SC 1247 [LNIND 1988 SC 288] [LNIND 1988 SC 288] [LNIND 1988 SC 288]: (1988) 3 SCC 570. 74 Chairman, Public Service Commission, J&K v. Sudarshan Singh Jamwal, (1998) 9 SCC 327, para 3 : AIR 1999 SC 840. 75 Shanmuga Traders v. State of T.N., (1998) 5 SCC 349, 354 (para 14) : AIR 1999 SC 1516, overruling Royal Steel Traders, Madras, (1992) 1 MTCR 580. 76 State of H.P. v. Nurpur Private Bus Operators' Union, (1999) 9 SCC 559 [LNIND 1999 SC 897] [LNIND 1999 SC 897] [LNIND 1999 SC 897], 561 (paras 6 and 7). See also Govt of T.N. v. Park View Enterprises, (2001) 1 SCC 742 [LNIND 2000 SC 1616] [LNIND 2000 SC 1616] [LNIND 2000 SC 1616], 747 (para 11). 77 V. Sunder v. Bar Council of India, (1999) 3 SCC 176 [LNIND 1999 SC 246] [LNIND 1999 SC 246] [LNIND 1999 SC 246], 198 (para 16) : AIR 1999 SC 1167 [LNIND 1999 SC 1609] [LNIND 1999 SC 1609] [LNIND 1999 SC 1609]. Rule 32 of the Railway claims Tribunal (Procedure) Rules, 1989, held, ultra vires Section 18(3)(f) of the Railway Claims Tribunal Act, 1987, Kalpataru Agroforest Enterprises v. Union of India, (2002) 3 SCC 692 [LNIND 2002 SC 172] [LNIND 2002 SC 172] [LNIND 2002 SC 172], 696 (para 15) : AIR 2002 SC 1565 [LNIND 2002 SC 192] [LNIND 2002 SC 192] [LNIND 2002 SC 192], notification violating parent Act, Competent Authority v. Baramgore Jute Factory, (2005) 13 SCC 477 [LNIND 2005 SC 928] [LNIND 2005 SC 928] [LNIND 2005 SC 928], 483-84 (para 5). 78 See under heading : Henry VIII Clause, Chapter IV .

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79 AIR 1980 SC 650 [LNIND 1979 SC 440] [LNIND 1979 SC 440] [LNIND 1979 SC 440]: (1980) 1 SCC 389. 80 For S. 45(10), see, supra, Chapter IV, 78. 81 (1996) 1 SCC 642 [LNIND 1996 SC 22] [LNIND 1996 SC 22] [LNIND 1996 SC 22], 660 : AIR 1996 SC 646 [LNIND 1996 SC 22] [LNIND 1996 SC 22] [LNIND 1996 SC 22]. See also Ratanlal Nath v. State of Tripura, (1997) 4 SCC 168 [LNIND 1997 SC 352] [LNIND 1997 SC 352] [LNIND 1997 SC 352], 176 (para 12) : AIR 1997 SC 1075 [LNIND 1997 SC 352] [LNIND 1997 SC 352] [LNIND 1997 SC 352]. 82 State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26 [LNIND 2003 SC 1015] [LNIND 2003 SC 1015] [LNIND 2003 SC 1015], 105 (para 120). 83 State of W.B. v. Jindal India Ltd., (2000) 9 SCC 369, 370 (para 4). 84 Om Prakash v. State of U.P., (2004) 3 SCC 402 [LNIND 2004 SC 1328] [LNIND 2004 SC 1328] [LNIND 2004 SC 1328], 409 (para 12) : AIR 2004 SC 1896 [LNIND 2004 SC 1328] [LNIND 2004 SC 1328] [LNIND 2004 SC 1328]. 85 (2000) 1 SCC 566 [LNIND 1999 SC 1103] [LNIND 1999 SC 1103] [LNIND 1999 SC 1103], 580 (para 29) : AIR 2000 SC 301 [LNIND 1999 SC 1103] [LNIND 1999 SC 1103] [LNIND 1999 SC 1103]. 86 AIR 1979 Goa 1. 87 On the power to exempt, see, supra, Chapter IV, 71-72. 88 Supra, Chapter IV, 73-74. 89 Rajnarain v. Chairman, Patna Administration, AIR 1954 SC 569 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]: 1955 (1) SCR 290; Jain, Cases, Chapter III, 101. 90 Lachmi Narain v. Union of India, AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953. Also, Jain, Cases, Chapter III, 102. 91 For further comments, see XIIA. S.I.L. 476 (1976). 92 State of U.P. v. Renusagar Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]: (1988) 4 SCC 59 : (1991) 70 Comp Cas 127; Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 22; Union of India v. Cynamide Ltd., AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720; Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 93 State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210], 534 (para 27), relying on Remeshchandra Kachardas Porwal v. State of Maharashtraa, (1981) 2 SCC 722 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86] : AIR 1981 SC 1127 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86]and Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] : AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]. 94 Lord Pearson in Mceldowney v. Forde, (1969) 2 All ER 1039; Jain Cases Chapter IV, Sec. B (iii). 95 Agarwal, Ayengar & Co. v. State, AIR 1951 Bom. 307. 1 Bar Council of Delhi v. Bar Council of India, AIR 1975 Del 200 [LNIND 1974 DEL 196] [LNIND 1974 DEL 196] [LNIND 1974 DEL 196]. 2 L.M. Sundaram v. Director of Legal Studies, AIR 1981 Mad 198 [LNIND 1980 MAD 305] [LNIND 1980 MAD 305] [LNIND 1980 MAD 305]; Inamdar Vahale v. Symbosis Society's Law College, Pune, AIR 1984 Bom 451 [LNIND 1984 BOM 90] [LNIND 1984 BOM 90] [LNIND 1984 BOM 90]. 3 A.P. Co-op. Bank v. C.P. Co-op. L.M. Bank, AIR 1974 SC 1962. 4 Minerva Talkies, Bangalore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176; Also, Canu v. Union of India, AIR 1988 SC 2027 [LNIND 1988 SC 417] [LNIND 1988 SC 417] [LNIND 1988 SC 417]; S. Kandaswamy Chettiar v. State of Tamil Nadu, AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341], 260 : (1985) 1 SCC 290 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]; Registrar, Cooperative Societies, Trivandrum v. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340 and 77; Jain, Cases, Chapter III, Sec. E. 5 AIR 1953 SC 79 [LNIND 1952 SC 81] [LNIND 1952 SC 81] [LNIND 1952 SC 81]: 1953 SCR 290. 6 AIR 1967 SC 1823 [LNIND 1967 SC 124] [LNIND 1967 SC 124] [LNIND 1967 SC 124]: (1967) 20 STC 367. 7 Durga Chand v. Union of India, AIR 1979 Del. 249 [LNIND 1979 DEL 107] [LNIND 1979 DEL 107] [LNIND 1979 DEL 107].

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Also see, Deepak Theatres v. State, AIR 1981 P&H 92. This view expressed by a single judge was reversed by the Division Bench, see, State of Punjab v. Deepak Theatre, AIR 1981 P&H 230. This view has been recently upheld by the Supreme Court; Deepak Theatre, Dhuri v. State of Punjab, AIR 1992 SC 1519 [LNIND 1991 SC 672] [LNIND 1991 SC 672] [LNIND 1991 SC 672]: 1992 Supp (1) SCC 684; infra, Chapter XVIII; Jain, Cases, Chapter XV, under Art. 19(1)(g). 8 D.V.K. Prasada Rao v. State of A.P., AIR 1984 AP 75 [LNIND 1983 AP 117] [LNIND 1983 AP 117] [LNIND 1983 AP 117]. 9 AIR 1984 SC 87 [LNIND 1983 SC 300] [LNIND 1983 SC 300] [LNIND 1983 SC 300], 92 : (1984) 1 SCC 206 [LNIND 1983 SC 300] [LNIND 1983 SC 300] [LNIND 1983 SC 300]. 10 Minerva Talkies, Banglore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176. 11 AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: (1984) 3 SCC 127 : 1984 (1) LLJ 368 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]. 12 State of Maharashtra v. Babu Govind Gavate, (1996) 1 SCC 305 [LNIND 1995 SC 1041] [LNIND 1995 SC 1041] [LNIND 1995 SC 1041] (paras 3 & 4) : AIR 1996 SC 904 [LNIND 1995 SC 1041] [LNIND 1995 SC 1041] [LNIND 1995 SC 1041]; see also Hansraj & Sons v. State of J&K, (2002) 6 SCC 227 [LNIND 2002 SC 441] [LNIND 2002 SC 441] [LNIND 2002 SC 441], 237 (para 21) : AIR 2002 SC 2692 [LNIND 2002 SC 441] [LNIND 2002 SC 441] [LNIND 2002 SC 441]; B.L. Wadhera v. U.O.I., (2002) 9 SCC 108 [LNIND 2002 SC 307] [LNIND 2002 SC 307] [LNIND 2002 SC 307], 136 (para 36) : AIR 2002 SC 1913 [LNIND 2002 SC 307] [LNIND 2002 SC 307] [LNIND 2002 SC 307]; Kanyakumari District Sidha and Ayurveda Vaidyar Sangam v. Govt. of T.N., (1996) 8 SCC 342 [LNIND 1996 SC 568] [LNIND 1996 SC 568] [LNIND 1996 SC 568], 344 (para 3) : AIR 1996 SC 1314 [LNIND 1996 SC 568] [LNIND 1996 SC 568] [LNIND 1996 SC 568]. 13 Krishna Mohan Shukla v. Union of India, (2000) 10 SCC 507 [LNIND 2000 SC 160] [LNIND 2000 SC 160] [LNIND 2000 SC 160], 508-9 (para 1). 14 State of Gujarat v. Kalabhai Vallabhbhai, (1998) 8 SCC 683, 684 (paras 2 and 3). 15 Assam Co. Ltd. v. State of Assam, (2001) 4 SCC 202 [LNIND 2001 SC 3047] [LNIND 2001 SC 3047] [LNIND 2001 SC 3047] : AIR 2001 SC 1485 [LNIND 2001 SC 3047] [LNIND 2001 SC 3047] [LNIND 2001 SC 3047]. See also ITW Signode India Ltd. v. Collector of Central Excise, (2004) 3 SCC 48 [LNIND 2003 SC 1007] [LNIND 2003 SC 1007] [LNIND 2003 SC 1007], 71 (para 56); Secy. Deptt. of Excise of Commercial Taxes v. Sun Bright Marketing (P.) Ltd., (2004) 3 SCC 185 [LNIND 2004 SC 204] [LNIND 2004 SC 204] [LNIND 2004 SC 204], 196 (para 36) : AIR 2004 SC 2743 [LNIND 2004 SC 204] [LNIND 2004 SC 204] [LNIND 2004 SC 204]; Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747 [LNIND 2004 SC 1100] [LNIND 2004 SC 1100] [LNIND 2004 SC 1100], 760 (para 13). 16 State of U.P. v. Sitapur Packing Wood Suppliers, (2002) 4 SCC 566 [LNIND 2002 SC 312] [LNIND 2002 SC 312] [LNIND 2002 SC 312], 571 (para 10) : AIR 2003 SC 2165 [LNIND 2002 SC 312] [LNIND 2002 SC 312] [LNIND 2002 SC 312]. 17 Commissioner of Central Excise & Customs v. Venus Castings (P.) Ltd., (2000) 4 SCC 206 [LNIND 2000 SC 598] [LNIND 2000 SC 598] [LNIND 2000 SC 598], 212 (para 12) : AIR 2000 SC 1568 [LNIND 2000 SC 598] [LNIND 2000 SC 598] [LNIND 2000 SC 598], followed in Union of India v. Supreme Steels and General Mills, (2001) 9 SCC 645 [LNIND 2001 SC 2913] [LNIND 2001 SC 2913] [LNIND 2001 SC 2913], 646 (para 3) : AIR 2001 SC 2987 [LNIND 2001 SC 2913] [LNIND 2001 SC 2913] [LNIND 2001 SC 2913]. 18 B.S.E. Brokers' Forum v. Securities and Exchange Broad of India, (2001) 3 SCC 482 [LNIND 2001 SC 286] [LNIND 2001 SC 286] [LNIND 2001 SC 286], 499 (para 22) : AIR 2001 SC 1010 [LNIND 2001 SC 286] [LNIND 2001 SC 286] [LNIND 2001 SC 286], relying on Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343 [LNIND 1992 SC 104] [LNIND 1992 SC 104] [LNIND 1992 SC 104] : AIR 1992 SC 1033 [LNIND 1992 SC 104] [LNIND 1992 SC 104] [LNIND 1992 SC 104]and U.O.I. v. Tulsiram Patel, (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219] : AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]. 19 Chairman, J&K State Board of Education v. Feyaz Ahmed Malik, AIR 2000 SC 1039 [LNIND 2000 SC 181] [LNIND 2000 SC 181] [LNIND 2000 SC 181]: (2000) 3 SCC 59. 20 Vikramaditya Pandey v. Industrial Tribunal, (2001) 2 SCC 423 [LNIND 2001 SC 168] [LNIND 2001 SC 168] [LNIND 2001 SC 168], 426-28 (para 6) : AIR 2001 SC 672 [LNIND 2001 SC 168] [LNIND 2001 SC 168] [LNIND 2001 SC 168]. See also State of A.P. v. Sunita Industries, (2005) 13 SCC 573, 575 (para 6). 21 Bharathidason University v. All-India Council for Technical Education, (2001) 8 SCC 676 [LNIND 2001 SC 2123] [LNIND 2001 SC 2123] [LNIND 2001 SC 2123], 688-89 (para 14). 22 Indian Charge Chrome Ltd. v. Union of India, (2003) 2 SCC 533 [LNIND 2002 SC 815] [LNIND 2002 SC 815] [LNIND 2002 SC 815], 556 (para 27) : AIR 2003 SC 953 [LNIND 2002 SC 815] [LNIND 2002 SC 815] [LNIND 2002 SC 815]. 23 S. Samuel, M.D. Harrisons Malayam v. Union of India, (2004) 1 SCC 256, 269-70 (para 26) : AIR 2004 SC 218. 24 Ajay Gandhi v. B. Singh, (2004) 2 SCC 120 [LNIND 2004 SC 11] [LNIND 2004 SC 11] [LNIND 2004 SC 11], 128 (para 19) : AIR 2004 SC 1391 [LNIND 2004 SC 11] [LNIND 2004 SC 11] [LNIND 2004 SC 11].

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25 Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 [LNIND 2005 SC 912] [LNIND 2005 SC 912] [LNIND 2005 SC 912], 306, 07 (para 9). 26 Union of India v. C. Dinakar, (2004) 6 SCC 118 [LNIND 2004 SC 522] [LNIND 2004 SC 522] [LNIND 2004 SC 522], 124 (para 17) : AIR 2004 SC 2498 [LNIND 2004 SC 522] [LNIND 2004 SC 522] [LNIND 2004 SC 522]. 27 (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 346 (para 60). 28 Rai Vimal Krishna v. State of Bihar, (2003) 6 SCC 401 [LNIND 2003 SC 545] [LNIND 2003 SC 545] [LNIND 2003 SC 545], 409 (para 21) : AIR 2003 SC 2676 [LNIND 2003 SC 545] [LNIND 2003 SC 545] [LNIND 2003 SC 545]. 29 Kerala Sansthana Chethu Thozhilali Union v. State of Kerala, (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 337, 340 (paras 15, 17, 26 and 28). See also Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 488 (para 104). 30 Kerala Sansthana Chethu Tozahilali Union v. State of Kerala, (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 337, 340 (paras 16 and 27). 31 (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 340-342, 344 (paras 29-36 and 46). 32 (2005) 5 SCC 598 [LNIND 2005 SC 498] [LNIND 2005 SC 498] [LNIND 2005 SC 498], 622 (para 57) : AIR 2005 SC 2821 [LNIND 2005 SC 498] [LNIND 2005 SC 498] [LNIND 2005 SC 498]. 33 (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 488 (para 104). 34 (2004) 8 SCC 524 [LNIND 2004 SC 852] [LNIND 2004 SC 852] [LNIND 2004 SC 852], 547 (para 63) : AIR 2004 SC 4236 [LNIND 2004 SC 852] [LNIND 2004 SC 852] [LNIND 2004 SC 852]. 35 (2003) 7 SCC 1 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625] (para 4.1) : AIR 2003 SC 3078 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625]. 36 (2005) 12 SCC 77 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681], 103 (para 66) : AIR 2005 SC 3401 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681]. 37 1993 Supp (3) SCC 621, 626 (para 10) : AIR 1993 SC 2123 [LNIND 1993 SC 365] [LNIND 1993 SC 365] [LNIND 1993 SC 365]. 38 (1973) 4 SCC 225 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154] : AIR 1973 SC 1461 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154]. 39 Kerala Sansthana Chethu Thozhilali Union v. State of Kerala, (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 342 (para 36). 40 1993 Supp (4) SCC 536, 558 (para 31) : AIR 1993 SC 1048 [LNIND 1992 SC 758] [LNIND 1992 SC 758] [LNIND 1992 SC 758]. 41 (1952) AC 427, 450. 42 Customs & Excise Commrs v. Cure & Deeley, (1961) 3 All ER 641; Jain, Cases, Chapter IV, Sec. B(V), 249. 43 Customs & Excise Commrs. v. Cure & Deeley, (1961) 3 All ER 641. 44 (1961) 3 All ER at 367. 45 De Smith, Const. & Adm. Law, 364 (1985). Also, A.W. Bradley's comment on the case in (1962) Camb LJ, 1. 46 Jayantilal v. Union of India, AIR 1970 Guj 108 [LNIND 1968 GUJ 103] [LNIND 1968 GUJ 103] [LNIND 1968 GUJ 103]. 47 The section authorised the Government to make rules "as appear to it necessary or expedient for securing the defence of India and civil defence... for maintaining supplies and services essential to the life of the community." 48 But see, Indian Express Newspapers (Bombay) Ltd. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]; for comments on this case, see Jain, Cases, 214, where the Supreme Court has stated that the rule-making power even when couched in discretionary terms is "not unrestricted". 49 Infra, Chapter XIX. 50 Wade suggests that subordinate legislation can be so challenged : Adm. Law, 871 (1988). 51 (1969) 2 All ER 1039; Jain, Cases, Chapter IV, Sec. B (iii), 231; (1969) 2 All ER 1039.

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52 A.G. For Canada v. Hallet & Carey Ltd., [1952] AC 427 at 444. 53 Mceldowney v. Forde, (1969) 2 All ER 1039. 54 (2000) 5 SCC 451 [LNIND 2000 SC 835] [LNIND 2000 SC 835] [LNIND 2000 SC 835] (paras 15 and 16) : AIR 2000 SC 2143 [LNIND 2000 SC 835] [LNIND 2000 SC 835] [LNIND 2000 SC 835]. To the same effect : Sri Ganganagar Urban Co-operative Bank Ltd. v. Prescribed Authority, (1997) 6 SCC 29 [LNIND 1997 SC 787] [LNIND 1997 SC 787] [LNIND 1997 SC 787], 30 (paras 5 and 6) : AIR 1997 SC 2687 [LNIND 1997 SC 787] [LNIND 1997 SC 787] [LNIND 1997 SC 787]. 55 H.C. Suman v. Rehabilitation Ministry Employees Co-op. House Building Society Ltd., (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421] : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]. 56 AIR 1991 SC 526, 529 : 1991 Supp (1) SCC 1. 57 AIR 1989 SC 1795 : (1989) 3 SCC 610 : 1989 (2) LLJ 476 [LNIND 1989 SC 370] [LNIND 1989 SC 370] [LNIND 1989 SC 370]. 58 State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761 : (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]; Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 223. 59 Infra, Chapters XVII-XIX. 60 AIR 1977 SC 1361 [LNIND 1977 SC 214] [LNIND 1977 SC 214] [LNIND 1977 SC 214]: (1977) 2 SCC 592. 61 On Art. 356, see, Jain, Indian Constitutional Law, 374-76. 62 (2001) 10 SCC 401 [LNIND 2001 SC 2549] [LNIND 2001 SC 2549] [LNIND 2001 SC 2549], 417-18 (para 21) : AIR 2002 SC 77 [LNIND 2001 SC 2549] [LNIND 2001 SC 2549] [LNIND 2001 SC 2549], holding judgments in State of A.P. v. Sadanandam, 1989 Supp (1) SCC 574 : AIR 1989 SC 2060 [LNIND 1989 SC 714] [LNIND 1989 SC 714] [LNIND 1989 SC 714]and Govt. of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262 [LNIND 2000 SC 604] [LNIND 2000 SC 604] [LNIND 2000 SC 604] : AIR 2000 SC 1729 [LNIND 2000 SC 604] [LNIND 2000 SC 604] [LNIND 2000 SC 604] not sustainable. 63 Legal Aid and Advice Centre v. State of T.N., (1996) 7 SCC 137 (para 2). 64 (1997) 1 SCC 301, paras 31 and 34 : AIR 1997 SC 568 [LNIND 1996 SC 2173] [LNIND 1996 SC 2173] [LNIND 1996 SC 2173]. 65 Pune Municipal Corporation v. Promoters and Builders Association, (2004) 10 SCC 796 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615], 799-800 (para 5) : AIR 2004 SC 3502 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615]. See also U.O.I. v. Cynamide India Ltd., (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] (paras 5 of 27); H.S.S.K Nijami v. U.O.I., (1990) 4 SCC 516 [LNIND 1990 SC 439] [LNIND 1990 SC 439] [LNIND 1990 SC 439] : AIR 1990 SC 2128 [LNIND 1990 SC 439] [LNIND 1990 SC 439] [LNIND 1990 SC 439]and Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324] : 2003 SCC (L&S) 507 : AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324]. 66 Pune Municipal Corporation v. Promoters and Builders Association, (2004) 10 SCC 796 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615], 799-800 (para 5) : AIR 2004 SC 3502 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615]. 67 (1898) 2 QB 91; Jain, Cases, Chapter IV, Sec. B (iii), 207. 68 See, Alan Wharam, Judicial Control of Delegated Legislation: The Test of Reasonableness, 36 Mod LR 611 (1973). 69 Mixnam Properties Ltd. v. Chertsey U.D.C., (1964) (1) QB 214. Also see, infra. 70 As cited in Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 542 (para 74) : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 71 Sparks v. Edward Ash Ltd., (1943) 1 KB 223; Taylor v. Brighton Borough Council, (1947) 1 KB 736, 748-9. 72 In this case, some conditions imposed by the authority were invalidated as being unreasonable. 73 (1969) 2 All ER 1039. Also, Jain, Cases, Chapter IV, Sec. B (iii), 231. 74 Foulkes, Introduction to Adm. Law, 96 (IV Ed.). Also, Maccormick, Delegated Legislation and Civil Liberty, 86 L.Q.R. 171 (1970); Wade, Legal Control of Govt., 102-3. 75 Custom & Excise Commr. v. Cure & Deeley, (1961) 3 All ER 641.

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76 Yardley, A Source Book of English Administrative Law, 52-3 (1970). Also, Alan Wharam, supra, and comment by Bradley in (1962) Camb LJ 1. 77 T.N. Kambati v. State of A.P., AIR 1982 AP 431 [LNIND 1982 AP 15] [LNIND 1982 AP 15] [LNIND 1982 AP 15]. 78 State of Mysore v. Malick Hashim & Co., (1973) 31 STC 358 : AIR 1973 SC 1449 : (1974) 3 SCC 251. In 1968, in Municipal Corp. of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: 1968 (3) SCR 251, Hidayatullah, J. characterised the Kruse v. Johnson rule as "universally accepted and applied in India and elsewhere." 79 Maharashtra S.B.O.S. & H.S. Education v. Paritosh, AIR 1984 SC 1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]: (1984) 4 SCC 27; Jain, Cases, Chapter IV, Sec. B (i), 161; Also see, B.S. Yadav v. State of Haryana, AIR 1981 SC 561 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC 437]: 1981 (1) LLJ 280 : 1980 Supp SCC 524, where the Supreme Court came very close to saying that unreasonable rules would be ultra vires. In Natraj Construction Co. v. State of A.P., AIR 1984 AP 59 [LNIND 1983 AP 54] [LNIND 1983 AP 54] [LNIND 1983 AP 54], 66, the High Court has suggested that regulations made under statutory power can only be held invalid if inconsistent with the statute but cannot be challenged on the ground of unreasonableness. According to the court: "Reasonableness of the regulations cannot be the subject-matter of judicial determination as they are framed in exercise of legislative power". This proposition is not correct in view of what has been said here. 80 The Supreme Court referred to Slattery v. Naylor, (1888) 13 AC 446, a Privy Council case. 81 For a fuller discussion on Art. 14, see, Jain, Indian Constitutional Law 471-497 Also, infra, See under heading : Need for safeguard, Chapter XVIII . 82 Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. Also, Jain, Cases, Chapter IV, Sec. B (iii), 211. 83 T.R. Sundaresan v. Director Gen., Civil Aviation., New Delhi, AIR 1985 Ker 59 84 AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366]; Jain, Cases, Chapter IV, Sec. B (iii), 223. Also see, Jain, The Evolving Indian Administrative Law, 38. 85 See, infra, under Public Enterprises. 86 Haribans Misra v. Railway Board, (1989) 2 SCC 84 [LNIND 1989 SC 12] [LNIND 1989 SC 12] [LNIND 1989 SC 12] : AIR 1989 SC 696 [LNIND 1989 SC 12] [LNIND 1989 SC 12] [LNIND 1989 SC 12]: 1989 (2) LLJ 260. 87 Indravadan v. State of Gujarat, AIR 1986 SC 1035 [LNIND 1986 SC 89] [LNIND 1986 SC 89] [LNIND 1986 SC 89]: 1986 (2) LLJ 166 : 1986 Supp SCC 254 [LNIND 1986 SC 89] [LNIND 1986 SC 89] [LNIND 1986 SC 89]. 88 Central Inland Water Transport Corpn. Ltd. v. Brojo Nath, AIR 1986 SC 1571 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]: 1986 (2) LLJ 171 : (1986) 3 SCC 156 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]; Jain, Cases, Chapter IV. Also, O.P. Bhandari v. Indian Tourism Development Corp. Ltd., AIR 1978 SC 111 : (1986) 4 SCC 337; M.K. Agarwal v. Gurgaon Gramin Bank, AIR 1988 SC 286 : 1987 Supp SCC 643; Delhi Transport Corp. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1991 (1) LLJ 395; Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263 [LNIND 1985 SC 196] [LNIND 1985 SC 196] [LNIND 1985 SC 196]: 1985 Supp SCC 72; Nidmarti v. State of Maharashtra, (1986) 2 SCC 534 [LNIND 1986 SC 111] [LNIND 1986 SC 111] [LNIND 1986 SC 111] : AIR 1986 SC 1362 [LNIND 1986 SC 111] [LNIND 1986 SC 111] [LNIND 1986 SC 111]; Shankar Mukherjee v. Union of India, AIR 1990 SC 532 [LNIND 1989 SC 570] [LNIND 1989 SC 570] [LNIND 1989 SC 570]: 1990 Supp SCC 668, and also, infra, Chapter IX, 'Natural Justice'. 89 Senior Supdt. of Police v. Izhar Hussain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318; Jain, Cases, 432. 90 State of Maharashtra v. Chandrabhanu, AIR 1983 SC 803 [LNIND 1983 SC 165] [LNIND 1983 SC 165] [LNIND 1983 SC 165]: (1983) 3 SCC 387 : 1983 (2) LLJ 256 [LNIND 1983 SC 165] [LNIND 1983 SC 165] [LNIND 1983 SC 165]. 91 Indian Express Newspapers (Bom.) P. Ltd. v. AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. For comments on this case, see, Jain, Cases, 214. 92 Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152] : AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]; Jain, Cases, 19; supra, Chapter III, note 24; Union of India v. Cynamide India Ltd., AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720. 93 Infra, Chapter XVIII; Jain, Cases, Chapter XV; See, supra, notes 3-6 for examples of unreasonableness under Art. 19(1)(g). In Minerva Minerva Talkies, Banglore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176, Rule 41a was held valid against a challenge under Art. 19(l)(g). Also see, Delhi Cloth Gen.

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Mills Co. Ltd., v. India, AIR 1983 SC 937 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175]: (1983) 4 SCC 166; Jain, Cases, Chapter IV, Sec. B (iii), 216. 94 Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 543 (para 76) : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 95 See, Chester v. Bateson, (1920) 1 KB 829; R.&W. Paul Ltd. v. Wheat Commission, (1937) AC 139. 96 Customs & Excise Commr. v. Cure & Deeley, (1961) 3 All ER 641. 97 [1983] 1 AC 1, 14. 98 Infra, under Legislative Control, Chapter VI. 99 [1922] KB 897. 1 Bimal Chandra Banerjee v. State of M.P., AIR 1971 SC 517 [LNIND 1970 SC 322] [LNIND 1970 SC 322] [LNIND 1970 SC 322]: (1970) 2 SCC 467. 2 Shardul Kumar v. Ahmedabad Urban Development Authority, AIR 1984 Guj 60. 3 D.K. Trivedi & Sons v. State of Gujarat, AIR 1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50], 1345 : 1986 Supp SCC 20; Jain, Cases, Chapter IV, Sec. B (IV), Also see, Ambalal v. State of Gujarat, AIR 1986 SC 1620 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50]: 1989 Supp (2) SCC 362. 4 Jain, Indian Constitutional Law, 563-65 (1987). 5 Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601; See also Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana, (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 633 (para 41); West v. Gwyanne, (1911) 2 Ch 1 : 104 LT 759 (CA). Jain, Cases, Chapter IV, Sec. B(ii), 198. 6 Bakul Cashew Co. v. S.T.O., Quilon, AIR 1987 SC 2239 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]at 2243 : (1986) 2 SCC 365 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]. 7 Cannanore Spg. & Wvg. Mills v. Customs Collector, AIR 1970 SC 1950 [LNIND 1969 SC 403] [LNIND 1969 SC 403] [LNIND 1969 SC 403]: (1969) 3 SCC 112; Dr. Indramani Pyarelal Gupta v. W.R. Nathu, AIR 1963 SC 274 [LNIND 1962 SC 159] [LNIND 1962 SC 159] [LNIND 1962 SC 159]: 1963 (1) SCR 721; Modifood Products v. Commr. of Sales Tax, AIR 1965 All 35; India Sugar Refineries v. State of Mysore, AIR 1960 Mys. 326; Shivdev Singh v. State of Punjab, AIR 1959 Punj. 453; Sri Vijaya Lakshmi Rice Mills v. State of Andhra Pradesh, AIR 1976 SC 1471 [LNIND 1976 SC 114] [LNIND 1976 SC 114] [LNIND 1976 SC 114]at 1473 : (1976) 3 SCC 37 [LNIND 1976 SC 114] [LNIND 1976 SC 114] [LNIND 1976 SC 114]; Phulwasi Devi v. Union of India, AIR 1977 Pat 32; Bangalore University v. St. John's Medical College, AIR 1980 Kant 142. In Chittoor v. Associated Transport Madras (P) Ltd., AIR 1980 SC 1872 [LNIND 1980 SC 370] [LNIND 1980 SC 370] [LNIND 1980 SC 370]: (1980) 4 SCC 597, the Court ruled that the statutory provision in question did not confer on the government power to make retrospective rules. Retrospective subordinate legislation taking away vested rights, held unlawful and unjust, Bejgam Veeranna Venkata Narasimloo v. State of A.P., 1997 (7) Scale 146 : 1998 (1) SLT 199. See also Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana, (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 633 (para 44), West v. Gwyanne, (1911) 2 Ch 1 : 104 LT 759 (CA); so would be the amendment in rules given retrospective effect, affecting vested right of an employee, U.O.I. v. Parmanand, (1996) 10 SCC 434, 435 (para 3). See also Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana, (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 633 (para 44); West v. Gwyanne, (1911) 2 Ch 1 : 104 LT 759 (CA); notifications issued retrospectively reducing pension, held unreasonable and arbitrary and violative of Article 14, Chairman, Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC 623 [LNIND 1997 SC 1001] [LNIND 1997 SC 1001] [LNIND 1997 SC 1001], paras 26 and 34 : AIR 1997 SC 3828 [LNIND 1997 SC 1001] [LNIND 1997 SC 1001] [LNIND 1997 SC 1001]. 8 Many statutes do confer power to make rules with retrospective effect. Thus, S. 46(3) of the Gift Tax Act, 1958 runs as follows : The power to make rules conferred by this section shall on the first occasion of the exercise thereof include the power to give retrospective effect to the rules or any of them from a date not earlier than the date of commencement of this Act. To the same effect was S. 85(2) of the Estate Duty Act, 1953. Parliament passed the Central Duties of Excise (Retrospective Exemption) Act, 1986 so as to validate certain notifications issued by the Central Government with retrospective effect under the Central Excise Rules, 1944 to vary duties of excise fixed by the Excise Tariff Act, 1985. 9 Income Tax Officer, Alleppey v. M.C. Ponnoose, AIR 1970 SC 385 [LNIND 1969 SC 226] [LNIND 1969 SC 226] [LNIND 1969 SC 226]: (1969) 2 SCC 351; Jain,.Cases, Chapter IV, Sec. B (ii), 196. also, Woodcrafts Enterprises v. S.T.O., (1972) 29 STC 315 (Delhi). 10 Bakul Cashew Co. v. S.T.O., Quilon, AIR 1987 SC 2239 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]at 2243 : (1986) 2 SCC 365 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]. 11 (1997) 9 SCC 763, paras 6 and 7 : (1998) 108 STC 1, following CST v. Agra Belting Works, (1987) 3 SCC 140 [LNIND

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1987 SC 443] [LNIND 1987 SC 443] [LNIND 1987 SC 443] : (1987) 3 SCR 93 [LNIND 1987 SC 443] [LNIND 1987 SC 443] [LNIND 1987 SC 443] and STO v. Dealing Dairy Products, 1994 Supp (2) SCC 639 : AIR 1994 SC 840. 12 Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601; Jain, Cases, Chapter IV, 198. 13 Gurcharan Singh v. State, AIR 1974 P&H 223. 14 I.T. Commr Lucknow v. Bazpur Coop. Sugar Factory, AIR 1988 SC 1263 [LNIND 1988 SC 292] [LNIND 1988 SC 292] [LNIND 1988 SC 292]: (1988) 3 SCC 553. 15 AIR 1982 SC 1126 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]: 1982 (1) LLJ 110 : (1982) 1 SCC 205 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]. 16 (1998) 8 SCC 469 (para 3). 17 (1998) 9 SCC 439 (para 3) 18 Mathra Pd. & Sons v. State of Punjab, (1962) 13 STC 180 [LNIND 1961 SC 378] [LNIND 1961 SC 378] [LNIND 1961 SC 378] (SC) : AIR 1962 SC 745 [LNIND 1961 SC 378] [LNIND 1961 SC 378] [LNIND 1961 SC 378]; Deputry Commr. v. Saravanan, (1980) 45 STC 94 (Mad). 19 U.P. Raghavendra Acharya v. State of Karnataka, (2006) 9 SCC 630 [LNIND 2006 SC 411] [LNIND 2006 SC 411] [LNIND 2006 SC 411], 639-40 (para 23). 20 Ashok Lanka v. Rishi Dikshit, (2006) 9 SCC 90 [LNIND 2006 SC 289] [LNIND 2006 SC 289] [LNIND 2006 SC 289], 122 (para 67). 21 See, infra, hapter VI . Also M.P. Jain, Parliamentary Control of Delegated Legislation in India, 1964 Public Law, 33, 56. 22 T.K Musaliar v. M. V. Pooti, AIR 1956 SC 246 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]: 1955 (2) SCR 1196. 23 H.C. Suman v. Rehabilitation Ministry Employees Coop. House Building Society Ltd., (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421] : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]. 24 H.C. Suman v. Rehabilitation Ministry Employees Co-operative House Building Society Ltd., (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421], 499 : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]. 25 B.S. Vadera v. Union of India, AIR 1969 SC 118 [LNIND 1968 SC 90] [LNIND 1968 SC 90] [LNIND 1968 SC 90]: 1970 (1) LLJ 499. See also Bharkta Ramegowda v. State of Karnataka, (1997) 2 SCC 661 [LNIND 1997 SC 107] [LNIND 1997 SC 107] [LNIND 1997 SC 107], 663 (para 6) : AIR 1997 SC 1038 [LNIND 1997 SC 107] [LNIND 1997 SC 107] [LNIND 1997 SC 107]; B.S. Vadera v. Union of India, AIR 1969 SC 118 [LNIND 1968 SC 90] [LNIND 1968 SC 90] [LNIND 1968 SC 90]: (1968) 3 SCR 575; Chief Secy. to Govt. of A.P. v. V.J. Cornelius, (1981) 2 SCC 347 [LNIND 1981 SC 90] [LNIND 1981 SC 90] [LNIND 1981 SC 90] : AIR 1981 SC 1099 [LNIND 1981 SC 90] [LNIND 1981 SC 90] [LNIND 1981 SC 90]; P.D. Aggarwal v. State of U.P., (1987) 3 SCC 622 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475] : AIR 1987 SC 1676 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475]; Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351]; R.L. Bansal v. Union of India, 1992 Supp (2) SCC 318 [LNIND 1992 SC 395] [LNIND 1992 SC 395] : AIR 1993 SC 978 [LNIND 1992 SC 395] [LNIND 1992 SC 395] [LNIND 1992 SC 395]; V.K. Sood v. Secy. Civil Aviation, 1993 Supp (3) SCC 9 : AIR 1993 SC 2295 [LNIND 1993 SC 469] [LNIND 1993 SC 469] [LNIND 1993 SC 469]. 26 State of A.P. v. D. Janardhana Rao, AIR 1977 SC 451 [LNIND 1976 SC 331] [LNIND 1976 SC 331] [LNIND 1976 SC 331]: (1976) 4 SCC 226. 27 AIR 1981 SC 561 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC 437]: 1980 Supp SCC 524 : 1981 (1) LLJ 280 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC 437]. For a comment on the case see S.N. Jain, (1981) JILI 102. 28 Art. 309, it has been held, does not authorise making of a rule giving immunity to a government servant from prosecution for an offence after the lapse of a particular period. This matter does not fall within the phrase conditions of service for which rules can be made under Art. 309: State of Punjab v. Kailash Nath, AIR 1989 SC 558 : (1989) 1 SCC 321 : 1989 (2) LLJ 209. 29 Infra, Chapter VIII. 30 (1998) 4 SCC 219 [LNIND 1998 SC 380] [LNIND 1998 SC 380] [LNIND 1998 SC 380] : AIR 1998 SC 1782 [LNIND 1998 SC 380] [LNIND 1998 SC 380] [LNIND 1998 SC 380]. 31 Accountant-General v. S. Doraiswamy, AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93; Jain, Cases, 201.

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32 State of Gujarat v. Raman Lal Keshav Lal Soni, (1983) 2 SCC 33 [LNIND 1983 SC 36] [LNIND 1983 SC 36] [LNIND 1983 SC 36] : AIR 1984 SC 161 [LNIND 1983 SC 36] [LNIND 1983 SC 36] [LNIND 1983 SC 36]: 1983 (1) LLJ 284. A rule provided for counting of military service, in case of appointment of an ex-service man, for the purpose of giving seniority to him in service. After appointment of several servicemen, the Government changed the rule with retrospective effect. The Supreme Court ruled that the Government could not take away the accrued right of the persons concerned by changing the rule retrospectively; K.C. Arora v. State of Haryana, AIR 1987 SC 1858 [LNIND 1984 SC 379] [LNIND 1984 SC 379] [LNIND 1984 SC 379]: (1984) 3 SCC 281 : 1984 (2) LLJ 362 [LNIND 1984 SC 127] [LNIND 1984 SC 127] [LNIND 1984 SC 127]; Jain, Cases, 203. 33 T.R. Kapur v. State of Haryana, AIR 1987 SC 415 [LNIND 1986 SC 522] [LNIND 1986 SC 522] [LNIND 1986 SC 522]: 1986 Supp SCC 584 : 1987 (2) LLJ 25 [LNIND 1986 SC 522] [LNIND 1986 SC 522] [LNIND 1986 SC 522]. See also O.P. Lather v. Satish Kumar Kakkar, (2001) 3 SCC 110 [LNIND 2001 SC 296] [LNIND 2001 SC 296] [LNIND 2001 SC 296], 116 (para 13). 34 P.D. Aggarwal v. State of U.P., (1987) 3 SCC 622 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475] : AIR 1987 SC 1676 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475]. 35 (1998) 3 SCC 381 [LNIND 1998 SC 335] [LNIND 1998 SC 335] [LNIND 1998 SC 335], para 6 : AIR 1998 SC 1289 [LNIND 1998 SC 335] [LNIND 1998 SC 335] [LNIND 1998 SC 335]. 36 K. Narayani Hegde v. State of Karnataka, (2000) 9 SCC 175, 176-78 (paras 7 and 8). 37 State of Rajasthan v. Khemka Cement Pvt. Ltd., JT 1999 (5) SC 170 : (2000) 9 SCC 382. 38 R.S. Ajara v. State of Gujarat, (1997) 3 SCC 639 [LNINDORD 1997 SC 132] [LNINDORD 1997 SC 132] [LNINDORD 1997 SC 132], 653-54 (para 16) : JT 1997 (3) SC 573 [LNIND 1997 SC 377] [LNIND 1997 SC 377] [LNIND 1997 SC 377]. 39 See, infra, Chapter VI, for discussion on these procedural norms. 40 Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970 41 Sharif-ud-Din v. Abdul Gani, AIR 1980 SC 303 [LNIND 1979 SC 446] [LNIND 1979 SC 446] [LNIND 1979 SC 446], 306 : (1980) 1 SCC 403 [LNIND 1979 SC 446] [LNIND 1979 SC 446] [LNIND 1979 SC 446]; Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: (1979) 2 SCC 196. 42 AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970; Jain, Cases, 300. Also, see, next Chapter. 43 AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]at 899 : 1965 (1) SCR 970 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]. Also see, Jain, Cases, Chapter V Sec. C (i), 300; infra, Chapter XIX . 44 Also see, State of U.P. v. Manbodhan Lal, AIR 1957 SC 912 [LNIND 1957 SC 93] [LNIND 1957 SC 93] [LNIND 1957 SC 93]: 1958 (2) LLJ 273, where the Supreme Court held Art. 320(3)(c) to be directory even though the word 'shall' is used therein. Also see, Owners & Parties Interested in M.V. Valipero v. Fernandeo Lopez, AIR 1989 SC 2206 [LNIND 1989 SC 453] [LNIND 1989 SC 453] [LNIND 1989 SC 453]: (1989) 4 SCC 671; Jain, Cases, Chapter IV, Sec. C. 260. 45 AIR 1963 SC 134 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]: 1963 (1) Crlj 88 : 1963 (1) LLJ 303 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]. See, Jain, Cases, Chapter V, Sec. C (i), 289. 46 Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849 [LNIND 1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56]: 1961 (2) LLJ 140 : 1961 (2) Crlj 12. Also see, Kalipada v. Union of India, AIR 1963 SC 134 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]: (1963) 2 SCR 904 : 1963 (1) Crlj 80 : 1963 (1) LLJ 303 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]. 47 State of Bihar v. B.L. Agarwalla, AIR 1966 Pat 411. 48 Infra, Chapter VI, under Consultation of Interests. 49 Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 567; also, infra, Chapter VI. 50 Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294], 899 : (1965) 1 SCR 970 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]. 51 Lachmi Narain v. Union of India, AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953. See also Mohan Wahi v. CIT, (2001) 4 SCC 362 [LNIND 2001 SC 861] [LNIND 2001 SC 861] [LNIND 2001 SC 861], 373 (para 19); Surinder Nath Kapoor v. U.O.I., 1988 Supp SCC 626 : AIR 1988 SC 1777 [LNIND 1988 SC 360] [LNIND 1988 SC 360] [LNIND 1988 SC 360]. 52 Infra, Chapter VI, under Legislative Control. 53 See, Govindlal v. Agricultural Produce Markets Committee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300]

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[LNIND 1975 SC 300]: 1975 Crlj 1993 : (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]; Jain, Cases, Chapter V, Sec D, 322. Also see, Chapter VI, infra, under 'Publication'. 54 Union of India v. Shree Ganesh Steel Rolling Mills Ltd., (1996) 8 SCC 347, 349 (para 8). 55 See, infra, under Exclusion of Judicial Review and Chapter VI. 56 See, B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62] : AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]; infra, Chapter VI; Jain, Cases, Chapter V. 57 Lord Diplock in Hoffman-La Roche v. Secretary of State for Trade and Industry, [1974] 2 ALL ER 1128; Jain, Cases, Chapter XI, 936. 1975 AC 295. 58 Deepak Sibal v. Punjab University, AIR 1989 SC 903 [LNIND 1989 SC 91] [LNIND 1989 SC 91] [LNIND 1989 SC 91]: (1989) 2 SCC 145. 59 Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], at 552 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]; Jain, Cases, Chapter IV, Sec. B(viii), 211. 60 K.N. Raghavan v. Habeeb Mohammed, (2002) 10 SCC 180, 182 (para 7), approving by implication Issac Ninan v. State of Kerala, (1995) 2 KLT 555 [LNIND 1995 KER 240] [LNIND 1995 KER 240] [LNIND 1995 KER 240]. 61 For an example of this see, Govindlal, v. Agricultural Produce Markets Committee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]: (1975) 2 SCC 482 : 1975 Crlj 1993, in which conviction of the appellant for breach of a rule was quashed as the rule was held to be non-enforceable due to lack of due publication: see, infra, Chapter VI, 150 et seq. 62 Infra, under Judicial Control. 63 (2001) 5 SCC 212, para 19 : AIR 2001 SC 1493. 64 State of A.P. v. Civil Supplies Services' Association, (2000) 9 SCC 299, 300 (para 2). 65 E.T. Sunap v. C.A.N. S.S. Employees Association, (2004) 8 SCC 683 [LNIND 2004 SC 1070] [LNIND 2004 SC 1070] [LNIND 2004 SC 1070]. 66 High Court of Judicature for Rajasthan v. P.P. Singh, (2003) 4 SCC 239 [LNIND 2003 SC 100] [LNIND 2003 SC 100] [LNIND 2003 SC 100], 250 (para 16) : AIR 2003 SC 1029 [LNIND 2003 SC 100] [LNIND 2003 SC 100] [LNIND 2003 SC 100]. 67 R.P. Bhardwaj v. Union of India, (2005) 10 SCC 244, 248 (para 8). 68 V.M. Kurian v. State of Kerala, (2001) 4 SCC 215 [LNIND 2001 SC 827] [LNIND 2001 SC 827] [LNIND 2001 SC 827], 223 (para 11) : AIR 2001 SC 1409 [LNIND 2001 SC 827] [LNIND 2001 SC 827] [LNIND 2001 SC 827]. 69 Infra, Chapter VI, for 'laying' before Parliament. 70 Hoffman-La Roche v. Secretary of State for Trade and Industry, (1974) 2 All ER 1128. Also, Laker Airways v. Dept. of Trade, [1977] 2 All ER 182. 71 Hoffman-La Rache v. Secretary of State for Trade and Industry, (1974) 2 All ER at 1153. 72 R. v. Home Secretary, ex p. Brind, [1990] 1 All ER 469; Jain, Cases, Chapter V, 282. 73 Kerala State Electricity Board v. Indian Aluminium Co., AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313], 1046 : (1976) 1 SCC 466 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]; R.T.O. Chittoor v. Associated Transport Madras (P) Ltd., AIR 1980 SC 1872 [LNIND 1980 SC 370] [LNIND 1980 SC 370] [LNIND 1980 SC 370]: (1980) 4 SCC 597. 74 Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601. 75 Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 76 Supra, Chapter IV; see, Garewal, v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792; Delhi Cloth and General Mills Co. Ltd. v. Union of India, AIR 1983 SC 937 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175], 938 (para 32) : (1983) 4 SCC 166 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175]. 77 Infra, Chapter VI.

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78 See under heading : Doctrine of ultra vires, Chapter V; infra, Chapter VI. 79 See also, infra, under Judicial Control. 80 (1894) AC 347. 81 Schwartz, Administrative Finality in England, 26 Can. B.R., 1072 (1948); Allen, Law and Orders, 258 (1965). 82 (1931) AC 494. 83 Schwartz, Administrative Finality in England, 26 Can. B.R. 1072 (1948); Allen, Law and Orders, 228 (1965); C.M.P. Report, 40. Also, Mceldowney v. Forde, (1969) 2 All ER 1039. 84 See, for example, R. Subba Rao v. C.I.I., AIR 1956 SC 604 [LNIND 1956 SC 49] [LNIND 1956 SC 49] [LNIND 1956 SC 49]: 1956 SCR 577; Orient Weaving Mills v. Union of India, AIR 1963 SC 98 [LNIND 1962 SC 93] [LNIND 1962 SC 93] [LNIND 1962 SC 93]: 1962 Supp (3) SCR 481. 85 Chief Commissioner of Ajmer v. Radhey Shyam, AIR 1957 SC 304 [LNIND 1956 SC 97] [LNIND 1956 SC 97] [LNIND 1956 SC 97]: 1957 SCR 68. 86 AIR 1965 SC 1585 [LNIND 1964 SC 254] [LNIND 1964 SC 254] [LNIND 1964 SC 254]: 1965 (1) SCR 601. 87 Per Shah and Sikri, JJ., State of Kerala v. K.M. Charia Abdulla and Co., AIR 1965 SC 1585 [LNIND 1964 SC 254] [LNIND 1964 SC 254] [LNIND 1964 SC 254]: (1965) 1 SCR 601. Generally, the High Courts have not followed the Herschell view, see, for example, State v. Kunja Behari, AIR 1954 Pat 371; State v. V.K. Jain, AIR 1958 MP 162; K. Rama Rao v. R.A. Mundkur, AIR 1960 Mys 313. 88 General Officer, Commanding-in-Chief v. Subhash Chandra, AIR 1988 SC 876 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621]: (1988) 2 SCC 351 : 1988 (2) LLJ 345 [LNIND 1988 SC 146] [LNIND 1988 SC 146] [LNIND 1988 SC 146]; See also Supreme Court Employees' Association v. U.O.I., (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351]; Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], 44 (para 8) : AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344]. Jain, Cases, Chapter IV, 265. 89 AIR 1989 SC 1829 [LNIND 1989 SC 231] [LNIND 1989 SC 231] [LNIND 1989 SC 231]: 1989 Supp (1) SCC 541; Jain, Cases, Chapter IV, Sec. B (i), 179. 90 Committee on Ministers Powers, Report, 40-41, 61-62; see, supra, Chapter IV. 91 Trust Mai Lachmi Sialkot Bradari v. Chairman, Amritsar Improvement Trust, AIR 1963 SC 976 [LNIND 1962 SC 144] [LNIND 1962 SC 144] [LNIND 1962 SC 144]: 1963 (1) SCR 242; Hapur Municipality v. Raghuvendra Kirpal, AIR 1966 SC 693 [LNIND 1965 SC 232] [LNIND 1965 SC 232] [LNIND 1965 SC 232]at 696 : 1966 (1) SCR 950. 92 Infra, under Judicial Control. 93 Raza Buland Sugar Co., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970; Jain, Cases, 300. 94 Infra, Chapter VI, under Consultation; Jain, Cases, Chapter V, Sec. C (ii). 95 S. 135(3) was the 'conclusive evidence' clause in the relevant statute. 96 Azimulla v. Suraj Kumar Singh, AIR 1957 All 307 [LNIND 1957 ALL 6] [LNIND 1957 ALL 6] [LNIND 1957 ALL 6]; Municipal Board, Hapur v. Raghavendra, AIR 1966 SC 693 [LNIND 1965 SC 232] [LNIND 1965 SC 232] [LNIND 1965 SC 232]; Vallabhdas v. M.C. Akola, AIR 1967 SC 133 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35]: 1961 (3) SCR 618; Beni Prasad v. Jabalpur Improvement Trust, AIR 1970 MP 191. 97 AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969 SC 12]: (1969) 1 SCC 399. Also Jain, Cases, Ch.IV, Sec. D (i), 263. For detailed comments on the case by the Author, see, I.L.I., A.S.I.L.,77-80 (1970). 98 Berar Swadesi Vanaspati v. Shegaon Municipality, AIR 1962 SC 420 [LNIND 1957 SC 18] [LNIND 1957 SC 18] [LNIND 1957 SC 18]: 1962 (1) SCR 596. Also see, B.K Srinivasan v. State of Karnataka, AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]: (1987) 1 SCC 658, Jain, Cases, 327. In this case, the Supreme Court gave a liberal connotation to the 'conclusive evidence' by calling it metaphorically as the 'Ganga' clause. A dip in the Ganga washes away all sins. 99 AIR 1977 SC 1055 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60]: (1977) 1 SCC 875. 100 Maunath Bhanjan Municipality v. S.C. Mills, AIR 1977 SC 1055 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60]: (1977) 1 SCC 875. 1 Supra, also, infra, Chapter VI.

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2 See, infra, under Judicial Control. 3 Infra, next Chapter. 4 Raza Buland Sugar Co., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: (1965) 1 SCR 970. Also see, infra, next Chapter. 5 Infra, next Chapter under Consultation. 6 CMP Report, 40-41, 61-62. 7 Harishankar Bagla v. State of M.P., AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: (1955) 1 SCR 380 : 1954 Crlj 1322; Jain, Cases, 56. 8 A.V. Nachane v. Union of India, AIR 1982 SC 1126 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]: (1982) 1 SCC 205 : 1982 (1) LLJ 110 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]. 9 See, infra, Chapter VI, under Legislative Control. 10 Dharangadhra Chemical Works v. Dharangadhra Municipality, AIR 1985 SC 1729 [LNIND 1985 SC 273] [LNIND 1985 SC 273] [LNIND 1985 SC 273]: (1985) 4 SCC 92. Municipal Board v. Bharat Oil Co., (1990) 1 SCC 312 : AIR 1990 SC 548 [LNIND 1989 SC 677] [LNIND 1989 SC 677] [LNIND 1989 SC 677]. Also see, Jain, Cases, Chapter IV, Sec. B (i), 181. 11 For an example of repugnancy between the rules made by the same body. 12 Proprietary Articles Trade Associations v. A.G. of Canada, 1931 AC 310; A.G. for Australia v. Queen. 95 CLR 529; Lohia Machines v. Union of India, AIR 1985 SC 421 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572]at 433 : (1985) 2 SCC 197 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572], Jain. Cases, Chapter III, 69. 13 Shivachandra v. State of Mysore, AIR 1965 SC 280 [LNIND 1964 SC 82] [LNIND 1964 SC 82] [LNIND 1964 SC 82]: 1967 (2) LLJ 246; Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 14 AIR 1969 SC 895. 15 AIR 1975 SC 1487 [LNIND 1975 SC 128] [LNIND 1975 SC 128] [LNIND 1975 SC 128]: (1975) 4 SCC 86. Also see, Shyanm Lal v. State of U.P., AIR 1954 SC 369 [LNIND 1954 SC 54] [LNIND 1954 SC 54] [LNIND 1954 SC 54]. 16 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: (1982) 1 SCC 271 : 1982 Crlj 340; Jain, Cases, 251. Also see, State of Tamil Nadu v. Hind Stone, AIR 1981 SC 711 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60]: (1981) 2 SCC 205. 17 On mala fide exercise of discretionary power, see infra, Chapter XIX. 18 AIR 1988 SC 1768 [LNIND 1988 SC 361] [LNIND 1988 SC 361] [LNIND 1988 SC 361]: (1988) 4 SCC 54 : 1988 Crlj 1809; Jain, Cases, Chapter IV, Sec. B (vi), 257. 19 See, note 66, Ch VI, infra. 20 Indian Express, (Bombay) v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 21 See, Chapter VIII, infra. 22 (1996) 9 SCC 548 [LNIND 1996 SC 633] [LNIND 1996 SC 633] [LNIND 1996 SC 633], 608 (para 126) : AIR 1996 SC 1765 [LNIND 1996 SC 633] [LNIND 1996 SC 633] [LNIND 1996 SC 633]. 23 See, infra, Chapter VI. 24 See, for example, Garewal, v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792. 25 Report of the Attorney-General's Committee, 90. 26 Megarry, Administrative Quasi-Legislation, 60 LQR. 125 (1944); also see, infra, Chapter VIII. 27 AIR 1975 MP 125. 28 Infra, Chapter XXII, under Promissory Estoppel. See, Bengal Iron Corp. v. Commercial Tax Officer, AIR 1993 SC 2414 [LNIND 1993 SC 401] [LNIND 1993 SC 401] [LNIND 1993 SC 401]: 1994 Supp (1) SCC 310. Also see 'Interpretative Directions', supra, hapter VIII.

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29 U.P. Jal Nigam v. Narinder Kumar Agarwal, (1996) 8 SCC 43 [LNIND 1996 SC 234] [LNIND 1996 SC 234] [LNIND 1996 SC 234], 45 (para 3). 30 M.C. Mehta v. U.O.I., 1997 (1) Scale (SP) 1. 31 State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240 [LNIND 1999 SC 376] [LNIND 1999 SC 376] [LNIND 1999 SC 376] : 2000 (1) LLJ 122 [LNIND 1999 SC 376] [LNIND 1999 SC 376] [LNIND 1999 SC 376]. 32 1999 (7) Scale 152 [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] : JT 1999 (9) SC 152 [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] [LNIND 1999 SC 1042]: AIR 2000 SC 278 [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] [LNIND 1999 SC 1042]: (2000) 1 SCC 81. 33 (1999) 7 SCC 604 [LNIND 1999 SC 856] [LNIND 1999 SC 856] [LNIND 1999 SC 856] : AIR 1999 SC 3524 [LNIND 1999 SC 856] [LNIND 1999 SC 856] [LNIND 1999 SC 856].

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER VI LEGISLATIVE AND OTHER CONTROLS OVER DELEGATED LEGISLATION

CHAPTER VI LEGISLATIVE AND OTHER CONTROLS OVER DELEGATED LEGISLATION 1. LEGISLATIVE CONTROL In a parliamentary democracy it is the function of the Legislature to legislate, 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. Since it is the Legislature which grants legislative power to the Administration, it is primarily its responsibility to ensure the proper exercise of delegated legislative power, to supervise and control the actual exercise of this power, and ensure against the danger of its objectionable, abusive and unwarranted use by the Administration. Legislature represents public opinion. Administration may not always understand the public mind, and may, at times, ignore individual freedom in its zeal to achieve the desired goals; it may treat administrative convenience as more important than individual rights. As has already been seen, judicial control is none too effective in this area.1 Grant of power in broad language dilutes judicial control. There is also reluctance on the part of the courts to closely supervise delegated legislation. All these considerations demand that the Legislature should effectively supervise, and provide the necessary corrective to, administrative rule-making. Based on this theory, a whole system of legislative supervision over delegated legislation has come into being in India. Two significant limbs of this mechanism are: (i) laying of delegated legislation before the Legislature; and (ii) scrutiny of delegated legislation by a legislative scrutiny committee.2 (a) Memorandum on Delegation At the Central level, the first step in the chain of Parliamentary control over delegated legislation is taken at the stage of delegation by Parliament. A rule of procedure of each House of Parliament requires that a bill involving proposal for delegation of legislative power shall be3 "accompanied by a memorandum explaining such proposals and drawing attention to their scope, and stating also whether they are of exceptional or normal character."4 The rule is salutary, for the first stage of supervision arises at the stage of delegation. In practice, however, the rule does not amount to much as the memoranda accompanying bills are usually scrappy, of a routine nature and not very informative. The Lok Sabha Committee on Subordinate Legislation has emphasized that the rule is mandatory and the memorandum attached to a bill should give full purport and effect of the delegation of power to subordinate authorities, the points which may be covered in the

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rules, the particulars of subordinate authorities who are to exercise the delegated power, and the manner in which such power is to be exercised. The purpose of the memorandum is to focus the attention of the members of Parliament to the provisions of the bill involving delegation of legislative power.5 The Speaker may also refer bills containing provisions for delegation of legislative power to the committee to examine the extent of such powers sought to be delegated.6 (b) Laying Procedure The second link in the chain of Parliamentary control comes into play after the rules are made. This is achieved by the mechanism of the "laying procedure". The basic purpose of this procedure is informational. The underlying idea is that if Parliament is to exercise any control, it is necessary that the Houses of Parliament be informed of the content of the delegated legislation made by the government from time to time under various statutes. According to Garner, the object of laying procedure is to bring the legislative measures to the "potential notice" of the Members of Parliament.7 There is no general obligation on the Administration to lay the rules before the Houses of Parliament. Whether the rules made under a statute are to be laid or not before the Houses depends on the terms of each delegated statute. If the statute has a laying clause, then the relevant delegated legislation is to be laid in terms of the statute; if there is no such clause, then it is optional for the government to lay or not to lay delegated legislation. In England, the Statutory Instruments Act, 1946, has somewhat formalised and systematised the laying procedure. Three main variants of this procedure are used in statutes: (1) (2)

(3)

Simple Laying: Here the requirement simply is to lay the rules before Parliament. S. 4(1) of the Statutory Instruments Act (SIA) says that if the parent Act requires that a statutory instrument be laid before Parliament, then the instrument is to be laid before it comes into operation. Laying with annulment: Here the rules are laid in draft and can be annulled by a resolution of a House. This is known as negative laying. In this procedure, the legitimacy of delegated legislation precedes, not follows, the negative laying procedure. In this procedure the parliamentary function is ex post facto; it is negative rather than positive; it provides for disallowance rather than allowance. Laying subject to affirmation: Here the rules are laid in draft before the Houses. The rules come into operation when the Houses pass resolution affirming them.

From the point of view of parliamentary control over delegated legislation, the last variety of the laying procedure is the most effective because here it is necessary for the Houses to approve the proposed rules before they become effective. This means that there must be a discussion in the two Houses on the draft rules.8 "An act of Parliament will normally require that rules or regulations made under the Act shall be laid before both Houses of Parliament. Parliament can then keep its eye upon them and provide opportunities for criticism. Rules or regulations laid before Parliament may be attacked on any ground. The object of the system is to keep them under general political control, so that criticism in Parliament is frequently on grounds of policy. The legislation concerning 'laying' has already been explained. "Laying before Parliament is done in a number of different ways. The regulations may merely have to be laid; or they may be subject to negative resolution within forty days; or they may expire unless confirmed by affirmative resolution; or they may have to be laid in draft. Occasionally they do not have to be laid at all, because Parliament has omitted to make any provision."9 "...If the instrument has merely to be laid, or laid in draft, before Parliament, it will be delivered to the Votes and Proceedings Office of the House of Commons. No opportunity is provided by parliamentary procedure for the instrument to be discussed, but its existence will at least be brought to the notice of Members and the Minister is more likely to be questioned about it than if it is not laid before Parliament at all."10

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In India, for long, there was confusion on the question of laying. Many statutes did not contain any such provision; and the statutes mostly required laying simpliciter after the rules were made. But, now, a standard laying formula is used in practically each Central statute. This formula runs as follows: Every rule made 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 session 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 tothe validity of anything previously done under that rule.

The above formula is now invariably incorporated in every statute enacted by the Indian Parliament. This formula requires the rules to be laid before each House as soon as possible after being made.11 The rules are to be laid before each House for 30 session days. This period is comprised in one session or in two or more successive sessions. Before the expiry of the session immediately following the session or the successive sessions aforesaid, if both Houses agree, they can make any modifications in the rules or even annul them. The rules come into force as soon as they are made and the laying procedure takes effect after that, but if any modification is made therein, or if they are annulled, by both the Houses then the rules operate in the modified form, or be of no effect, in the future. If they are annulled then they will cease to exist from the date of annulment. Any modification or annulment of the rules does not affect the validity of any previous administrative action taken under the rules as they were. Thus, the annulment or modification has prospective, and no retrospective, effect on the rules. The rules can be annulled or modified when only both Houses agree. In this formula, the initiative to move a resolution to annul or modify the rules has to be taken by the members of the House. The government is under no obligation to take any initiative. Under this formula, rules stand modified or annulled as soon as a resolution to that effect is passed by one House and is agreed to by the other House. This standardised laying formula has been evolved in India so as to do away with the varying formulae which were in use earlier resulting in varying practices which caused confusion and ambiguities in the area of Parliamentary control of delegated legislation. In some exceptional cases, the delegating statute may stipulate that the rules be laid before the Houses before they become enforceable. In such a case, the rules are laid in the draft form and become effective either automatically after the passage of the stipulated period, or, when the Houses pass resolutions affirming the rules. This is termed as laying with affirmative procedure. Such a procedure is not used frequently in India. Whether it is to be used or not depends upon the terms of the delegating Act in question. Two of the statutes where the affirmative procedure is followed are: The Salaries and Allowances of Ministers Act, 1952; and The Essential Services Maintenance Act, 1968. The Rajya Sabha Committee on Subordinate Legislation is of the opinion that the affirmative procedure would make parliamentary control more effective and meaningful. The committee recommended that it was highly desirable to follow such a procedure where the rule-making power may: (a) trespass unduly on personal rights and liberties; (b) infringe the rule of law and the rules of natural justice; (c) impose or increase taxation, fees or charges; (d) lay down a policy not clearly identifiable in the enabling Act or make a departure in policy; (e) involve considerations of special importance (e.g. powers to create new varieties of criminal offence of a serious nature).12 The Lok Sabha Committee on Subordinate legislation asked the government to examine Acts to find out which of them did not contain "laying" requirement and to incorporate the requirement in them at the earliest.13 The committee also recommended the amendment of the General Clauses Act to provide for laying of the rules, made by the Central Government under the Central statutes, before Parliament.14 Many Central statutes enacted either under the Union List or the Concurrent List of the Seventh Schedule to the Constitution confer rule-making power on the State Governments. This has raised the problem of laying of such rules. The Lok Sabha Committee has examined the question in detail.15 The committee realised the difficulty of placing such rules before Parliament because the Central Government or the minister of the department concerned has no responsibility in framing these rules and thus no purpose would be served by the Parliament discussing those rules.16 The committee felt that such rules should be laid before the State Legislature concerned. From the point of view of the legality of such laying before the State Legislature, the committee made a distinction between those Central Acts which fell under the Concurrent List and those

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which came under the Union List. As regards the former, the committee found that there could be three alternatives: (a) the State Legislature could make a provision in its rules of procedure; (b) the Speaker of the State Legislature could issue a direction to the State Committee on Subordinate Legislation to examine these rules; and (c) a provision could be made in all the Central Acts concerned requiring that the rules made by the State Government be laid before the State Legislature. The committee preferred the last alternative and noted that such a provision had been made in the Industrial Relations Bill, 1978. As regards the Acts falling in the Union List, there were legal difficulties in requiring the rules to be laid before the State Legislature as the power has been delegated to the State Government and not the Legislature. The committee, however, felt that there would be no constitutional impropriety if such rules are laid before the State Legislature and are examined by its Committee on Subordinate Legislation. For this purpose, some procedure would have to be devised in the absence of a statutory provision. There would be no constitutional inhibition if the Speaker of the State Legislature issued a direction empowering its committee to examine such rules, even if they are not laid on the table of the House. The committee was of the view that even if the rules are laid before the State Legislature, it is only the State Government and not the legislature which will have the power to modify the rules. The committee has pleaded for laying not only of rules but also other forms of delegated legislation, such as, notifications, regulations, bye-laws, etc., whether promulgated by the Central Government or by any other authority under a Central Act. For instance, the Customs Act, 1962 and the Central Excises and Salt Act, 1944 empower the Central Government to promulgate rules and notifications. The former Act provides for laying of rules and certain notifications, and the latter Act only provides for laying of rules. The committee has taken the view that all notifications under both the statutes are to be laid.17 Similarly, the committee has emphasised that the following should also be laid: (i) all orders of legislative nature issued under the Industries (Development and Regulation) Act, 1951;18 (ii) regulations issued by the University Grants Commission under the U.G.C. Act, 1956;19 and (iii) statutes, ordinances and regulations issued by the universities under the different central university statutes.20 According to the direction of the Speaker the committee may examine all legislative orders framed by the executive under the Constitution or a statute whether laid on the table of the House or not.21 In spite of laying, legislative orders are hardly discussed in the House. There seems to be only one occasion when this happened.22 In Quarry Owners' Assn. v. State of Bihar,23 the Supreme Court observed that laying before the Houses of Parliament is done in three different ways. Laying of any rule may be subject to any negative resolution within a specified period or may be subject to its confirmation. This is spoken of as negative or positive resolution respectively. The third may be mere laying before the House. Section 16(2) of the Water (Prevention and Control of Pollution) Cess Act, 1977 shows that there has to be a positive act of approval by Parliament to the issuance of the notification before it can be held that the schedule I has been amended. Merely laying down the notification before each House of Parliament, as is the case in the instant one, is not sufficient compliance with the provisions of Section 16(2).24 (c) Laying requirement: Legal Effect A laying requirement is regarded as directory when not coupled with the requirement of laying rules in draft form and approval by the House. In the latter case, the requirement of laying is regarded as mandatory because the rules cannot come into force without being laid and approved by the Houses. In a simple laying procedure, failure to lay the rules does not affect their legal validity and hence it is deemed to be directory.25 A main consideration in regarding this requirement as directory also is that if it is held mandatory, the question will arise at what precise moment do the rules become invalid for failure to lay.26 The statutes prescribing simple laying provision for the rules made thereunder do not prescribe a time-frame within which the rules are to be laid before the Houses of Parliament. The usual laying formula runs as: "The rules shall be laid before both Houses of Parliament as soon as may be".

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In case of laying procedure subject to a negative resolution, it is also regarded as directory. In this case, the rules come into effect as soon as they are made and the 'laying' procedure takes effect subsequently. If Parliament disapproves the rule, it will cease to be operative thereafter, but until then the rules remain effective. But when rules are to be laid before Parliament, and they become effective only after Parliament passes an affirmative resolution, then the procedure is to be treated as mandatory as parliamentary resolution is a condition precedent for the validity of the rules. In India also, the courts have taken a similar view.27 The question has been elaborately considered by the Supreme Court in Atlas Cycle Industries Ltd. v. State of Haryana.28 S. 3(6) of the Essential Commodities Act, 1955, lays down that any order issued under S. 3 "shall be laid before both Houses of Parliament as soon as may be after it is made." An order issued under S. 3 was not laid in the Houses and it was challenged as being ultra vires. Rejecting the argument, the Supreme Court ruled that S. 3(6) is only directory and not mandatory and that non-laying of an order before Parliament does not make it void. The use of the word 'shall' in S. 3(6) is not conclusive and decisive of the matter, it is for the court to determine the true intention of the Legislature. The two considerations for regarding a provision as directory are: (i) absence of any provision for meeting the contingency of the provision not being complied with; and (ii) serious general inconvenience and prejudice that would result to the general public if the act of government is declared invalid for non-compliance with the particular provision. The policy and object underlying 'laying' provisions is to keep supervision and control over subordinate authorities. There are various forms of laying, i.e., simple laying, laying with negative resolution and laying with affirmative resolution. S. 3(6) provides for simple laying without any 'affirmative' or 'negative' resolution. Nor does it provide that it shall be open to Parliament to approve or disapprove the order made under S. 3. The requirement of laying is not a condition precedent but a condition subsequent to the making of the order. Such a simple laying procedure is regarded only as directory and not mandatory, and non-laying of the order would not make it void. Observations made by the Court in some earlier cases29 suggesting laying procedure to be mandatory where now held to be only incidental. Obviously, the Court has here accepted the position as it obtains in England in this respect as stated above.30. In Jagadale,31. the Karnataka High Court has ruled that when an Act uses a laying formula with a negative resolution, the rules may be made effective as soon as they are made and laying before the legislature is not a condition precedent to their validity. From the above discussion it would appear that, in practice, the 'laying' requirement (other than that of the affirmative type) does not lead to any effective parliamentary control over delegated legislation. However, it needs to be pointed out that in Australia the simple laying procedure is regarded as mandatory.32 One can think of several good reasons why this kind of laying procedure ought to be deemed to be mandatory and not directory. The laying provision forms part of the general publication requirements and, therefore, it may be argued that it should be strictly complied with. The requirement is an exercise by the legislature of its right to check the action of its legislative delegate; parliamentary review of delegated legislation is an essential part of the control mechanism over delegated legislation and it should not be diluted. It is also an essential part of the law making process and so Parliament must have the opportunity to look into delegated legislation which can be ensured only if laying procedure is regarded as mandatory. Though regarded legally as directory, the responsibility of the executive to the legislature remains for any failure to lay. For example, regulations made under the All India Services Act, 1951, were not laid before Parliament for several years. To rectify the omission, Parliament passed the All India Services Regulations (Indemnity) Act, 1975, to indemnify the Government and its officials from all consequences arising out of the omission to lay. The Punjab National Bank Employees Voluntary Retirement Scheme, 2000, not being part of statutory regulation, its placement by the Central Govt. under Section 19(4) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 was not necessary and failure to do so did not vitiate it.33 (d) Laying and Judicial Review As has already been explained earlier at some length, the 'laying' requirement makes no substantial difference to the applicability of the doctrine of ultra vires of delegated legislation and the judicial power to go

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into the question of its legal validity.34 (e) Parliamentary Scrutiny Committees As is clear from the above, the laying procedure by itself does not afford much of an effective parliamentary supervision. In the negative resolution procedure which now prevails in India, everything depends on the vigilance of each individual member of Parliament. Allen has remarked so rightly, "It lies, then, in the realm of constitutional fiction to say that Parliament exercises any really effective safeguards over delegated legislation.35 Though said in the context of England, it is equally true in the Indian context as well. To make parliamentary supervision over delegated legislation more effective, two Committees on Subordinate Legislation, one in each House of Parliament, have been established.36 The Lok Sabha Committee on Subordinate Legislation is older than the corresponding Rajya Sabha Committee. The Lok Sabha Committee was established in 1953, while the Rajya Sabha Committee in 1964. With the institution of the Rajya Sabha Committee, Parliamentary control of delegated legislation in India has become much more effective, for the two committees can scrutinize many more rules every year than could possibly be done by one committee alone. The need for such committees was felt because of the fact that mere laying of rules before a House could not be of much efficacy unless some method was evolved to scrutinize the rules so laid. The House, as a whole, being pressed for time, cannot exercise any effective supervision over delegated legislation by itself. Also, under the laying formula used in India, as mentioned above, the whole initiative to move a resolution to disapprove or amend any rules laid rests on the individual members. Therefore, the members themselves have to be vigilant, but individual members themselves are not adequately equipped to scrutinise the massive and complicated delegated legislation being turned out constantly by the government departments, and so they need help in discharging their responsibilities in Parliament. It was thus realised that some organised effort was necessary so that there may be some kind of automatic scrutiny of delegated legislation on behalf of the House to make parliamentary control somewhat more effective. It was therefore thought necessary that a Parliamentary Scrutiny Committee be instituted to keep watch over delegated legislation on behalf of the House as such and make a report to it. With this aim in view, in England, the Select Committee on Statutory Instruments was established in the House of Commons in 1944. The committee emerged as a result of the recommendations of the Donoughmore Committee, which suggested the creation of such a committee not as a critic or censor of delegated legislation but "to supply the Private Member with knowledge which he lacks at present and thus enable him to exercise an informed discretion whether to object or criticise himself."37 Since 1973, a Joint Committee on Statutory Instruments of both Houses has been established.38 On the lines of the British Committee, each of the Houses of Parliament in India has got the Committee on Subordinate Legislation. The Lok Sabha Committee consists of 15 members, appointed by the Speaker for a year, so that it represents all political parties in the House in proportion to their respective strength. The Chairman of the Committee is usually a member of the opposition, and ministers are debarred from the Committee's membership It is the tradition of the two Committees that all decisions are arrived at unanimously and party considerations are not allowed to affect their deliberations.39 The Rajya Sabha Committee also consists of 15 members who are nominated by the Chairman of the Rajya Sabha. The Chairman of the Committee is also appointed by the Chairman of the House. There is no prohibition in a Minister becoming a member of the Rajya Sabha Committee. The Committee is to hold office until a new Committee is nominated. Generally, each Committee is charged with the function of scrutinising and reporting to the House whether the power to make regulations, rules, etc., conferred by the Constitution or delegated by Parliament has been properly exercised within such delegation. More specifically, each Committee is to scrutinise orders laid before the House and to consider.40 1. 2. 3.

Whether the order is in accord with the general object of the Constitution or the Act pursuant to which it is made; Whether it contains matter which in the opinion of the Committee should more properly be dealt with in an Act of Parliament; Whether it contains imposition of any tax;

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4. 5. 6. 7. 8. 9.

Whether it directly or indirectly bars jurisdiction of the courts; 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; Whether it involves expenditure from the Consolidated Fund of India or the public revenues; 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; Whether there appears to have been unjustifiable delay in its publication or the laying of it before Parliament; and Whether for any reason its form or purport calls for any elucidation.

Each Committee places its reports before the respective House. The Committee may also bring to the notice of the House any other matter relating to the rules which it thinks deserves the notice of the House. The Committee may report, along with the grounds, its view that rules may be annulled wholly or in part or amended in any respect. The Committee may, if it deems necessary, examine the representative of the concerned ministry while considering the rules. The reports of the Committee are not discussed in the House but the government gives due weight to the views of the Committee and seeks to implement the suggestions made in its reports. The reports of the Committees are very instructive and informative as they throw a flood of light on the way the institution of delegated legislation functions in India. The Committees' reports are full of comments on the rules promulgated by the executive and the manner in which they are made. Some assessment of the work done by these Committees, and their efficacy as a supervisory organ over delegated legislation, may be made by referring to the reports of the Committees which are replete with comments and criticism of the rules and the way these are made. The Committees have evolved several propositions to improve rule making by government agencies and also to protect the interests of the individual.41 As a result of the Committees' suggestions, many improvements have been effectuated in the rules as well as in the provisions regarding parliamentary supervision. To take an example about the latter, the presentday laying formula, noted above, has come in vogue because of the Lok Sabha Committee's constant efforts over a period of time.42 The Committees have constantly objected to delays in laying rules before Parliament after they are made. They have insisted that the rules be laid before the Houses as soon as possible after they are made. It is one of the specific functions of the Committees to take note of any unjustifiable delay in laying rules before Parliament. The usual statutory formula in India stipulates that the rules be laid "as soon as may be" after they are made, but often the rules are laid after a lapse of long time. Such delay reduces the efficacy of parliamentary control. From this point of view, the record of the departments has not been very good.43 The main reason for the delay in laying rules before the Houses is inadvertence on the part of the ministries.44 Therefore, the Committees have emphasized time and again that the Government take the first opportunity of placing the rules before the Houses of Parliament. As a result of the constant efforts of the two Committees, some improvement has been effected in this direction. Again, referring to the delay of over one year in laying certain notifications before the House, the Committee has said: "The Committee does not approve of the inordinate delay in the instant case and expresses its concern in the matter and directs that such an instance should not recur".45 The Committees do not take kindly to the attempts made by the executive to curtail judicial review through rules and have constantly advocated the principle that a substantive provision excluding jurisdiction of courts, if thought necessary, should be made through Parliament, and not by subordinate legislation.46 The Committees have also objected to the vesting of final power of interpretation of rules in the rule-making authority. It is true that such exclusion of judicial review is not binding on the courts, but the Committees have pointed out that even then it should not be provided in the rules as it would create an impression in the minds of the persons concerned that the jurisdiction of the courts has been ousted.47 The Committee has again referred to this aspect in 1984. Referring to the "known presumption of delegated legislation that Parliament did not intend to oust the jurisdiction of the courts of law," the Committee has stressed that "no subordinate legislation should directly or indirectly oust the jurisdiction of the courts of law in any manner."48 The Committee has argued that, first, curtailing or limiting powers of courts by rules is not in keeping with the structure of the Constitution; and, secondly, if this were allowed, there would be no judicial check over transgression of the rule-making power by administrative authorities. The general principle enunciated by the Scrutiry Committee has been accepted by the Central Government.

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As regards taxation, the Committees have assiduously taken the view that, consistently with democratic principles, a financial levy, whether tax, fee, or any charge, should be imposed by a statute and not by rules.49 This is based on the theory that financial imposition is the privilege of Parliament and the Executive should not be permitted to levy any financial levy without any parliamentary authorisation. If Parliament considers it necessary to delegate to the concerned authority power to impose any financial levy, it should do so expressly or by necessary implication in the statute. The courts also follow this principle in testing the vires of the rules.50 The Committees have criticised some rules on the ground of using complicated language, or containing ambiguities, which make it difficult for the general public to understand them. They have emphasized that the language of the rules should be simple and not complex and should be such as the Indian public is able to understand.51 The Committees have made this suggestion under the heading (no. 9 above) saying "Form and purport calling for elucidation". The Committees have taken objection to giving retrospective operation to the rules unless such a power has been expressly conferred by the parent statute. Retrospective operation of the rules is disfavoured as this prejudicially affects vested rights. The Government has generally accepted this view subject to the rider that if it becomes necessary in rare cases to give retrospective effect to any subordinate legislation, care would then be taken to see that it is in accordance with the principle laid down by the courts that such operation does not affect vested rights. It has been emphasized that where retrospective effect to rules is given, there should be an explanatory note stating the circumstances and reasons thereof and affirming that no one will be adversely affected as a result of retrospective effect.52 The explanatory note should be published in the gazette as it would go to prove that there was no mala fide action.53 The Committees have also pointed out from time to time that certain provisions made through rules be better made through an act of Parliament. The basic philosophy underlying the technique of delegated legislation is that policies are formulated by the legislature and laid down in the statutes, and detailed provisions to given effect to those policies may be worked out through rules made by the Administration. It, however, happens at times that matters which ought more properly to be considered by the legislature are not discussed there, but are left to be taken care of through rules and this, consequently, diminishes parliamentary control of the executive. Therefore, the committees are specifically charged with the duty to see if the rules contain any matter which should more properly be enacted in the Act, so that important matters do not escape parliamentary consideration. As for example, the Lok Sabha Committee has objected to delegation of rule-making power to the government to make rules regarding allowances to the ministers under the Salaries and Allowances of Ministers Act, 1952, on the ground that it amounts to ministers legislating for themselves. Such rules, the Committee has suggested, should become operative after an affirmative vote by the House. The Rajya Sabha Committee has taken objection to a rule conferring on an authority all the powers of a civil court. The conferment of powers of court on an authority being a matter of substantive law, it should be provided in the statute itself and not in the rules made under it.54 Similarly, levy of interest is to be provided in the enabling Act rather than the rules,55 or the power of seizure should be provided in the parent statute and not in the rules.56 At times, the Committees have suggested that the matter should be dealt with by rules rather than administrative instructions.57 At times, the Committees have criticised the delegation of rule-making power in wide language. Generally speaking, the Committees' function is not to criticise or reformulate policies embodied in the rules, or to review them on merits; their task is to scrutinise application of policy, its forms and its results. Such a restriction is imposed because of the fear that the Committees, consisting of party men, may divide on party lines on policy matters which might compromise their efficacy.58 However, the term of reference empowering them to consider whether the Executive has made an 'unusual or unexpected' use of the rule-making power (Term of reference number 7, mentioned above), may be said to be the nearest approach to consideration of policy matters, or, merits of the rules, without saying so specifically. This formula has a wide range and it gives a discretion to the Committees to criticise the rules on any ground that they want to. This introduces flexibility in respect of the Committees' scrutinising functions. A few illustrations as to how this power is used by the Committees may be noted here. Under this head, the Committees have criticised the rules on such grounds as: the rules are not fair, or they are harsh, or they are against natural justice,59 or they are ultra vires or discriminatory, or they confer very broad discretion on the Administration without proper safeguards,

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or the restriction imposed is disproportionate to the evil sought to be remedied. It has been emphasized that guidelines should be laid down for the exercise of discretion60 and that a wide discretion should not be conferred on an official below a certain rank.61 The Committees have quite often insisted on the necessity of providing procedural safeguards in the rules against abuse of administrative powers. The Committees realize that in the absence of proper procedural safeguards, there is a danger of discretionary power being misused. Thus, the Committees have insisted on the observance of the principles of natural justice where an individual is adversely affected by administrative action under the rules;62 the Committees have insisted that such principles must invariably be observed where the rules provide for imposition of a penalty.63 The Committees have suggested that reasons be recorded for refusal to grant a licence,64 or taking some other adverse action against the individual,65 and making provisions for appeal against the orders of administrative authorities.66 Many a time, the Committees have suggested amendment of the rules so as to incorporate procedural safeguards therein. One specific instance may be noted here. A rule conferred general power on the concerned authorities to withdraw either totally or partially any telephone if they considered it necessary to do so. The Committee apprehending that such an unqualified power may be abused or used arbitrarily suggested modification of the rule so as to incorporate the following safeguards therein: (1) giving of due notice to the subscriber before withdrawing the telephone; (2) recording of reasons in writing for withdrawing the telephone, and (3) communication of the same to the subscriber. The Committees have stated that the power of search should be exercised subject to certain safeguards, such as, the officers exercising power of search should pay due regard to the social and religious customs of the occupants of the premises, witnesses should be present at the time of search, and an inventory of the goods should be prepared.67 At times the rules have been found to be ultra vires,68 discriminatory69 or unfair.70 In some cases "Removal of Difficulties" clause has been used in the rules itself. Under this clause the government could by directions remove the difficulties in the operation of the rules in question. The Committee has criticised the use of the clause in the rules because the government has got the right to amend the rules themselves, and the directions issued under the clause are not published in the gazette.71 A general power has been given to the Committees to bring to the notice of the House any matter relating to an order which in its opinion deserves the notice of the House. Under this head, which is a kind of residuary power, the Committees may point out such matters in connection with the rules as are not covered by any specific term of reference. The Committees have thus taken opportunity to comment on several matters concerning rule-making. One such matter is delay in making rules under several Acts. In some cases, the rules were not framed for such long period as over 6, 7 or 14 years.72 It is not clear how these Acts, which provide for certain matters to be regulated by rules, were administered in the absence of such rules. The Committees have emphasised that delay in making the rules should be avoided and in no case the period for making the rules should exceed six months.73 In this connection, the Rajya Sabha Committee on Subordinate Legislation has observed: "The Committee observes from their study of the various factors contributing to delay in making rules and regulations under the various Acts of Parliament, that the one main factor for the delay has been the involvement of various Ministries, Bodies, Departments for consultation in framing, vetting and finalisation of the rules etc. It has been brought to the notice of the Committee by the concerned Ministries that correspondence between different departments consumes lot of time. In this context the Committee recommends that in such cases where multiple agencies are involved in the matter of finalisation of rules, the practice should be to call the representatives of all the concerned Ministries, Departments etc. simultaneously round the table for discussion instead of writing to one authority or the other. Such a meeting may be repeated, if necessary, for speedy decision and expeditious finalisation of the rules and regulations."74

The Committee has again referred to this matter later in its Seventyfirst report.75 The Lok Sabha Committee has also suggested ways and means of publication of rules in the Gazette of India with a view to make it easy and convenient to the people to locate them.76 Even when the parent Act

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did not require publication of rules, the Committees have insisted on publication of the rules in the Gazette of India. This is to be done even when the rules have been otherwise published for the information of those concerned.77 Like any other law, delegated legislation ought not only to be certain but also ascertainable. The Committees have taken the view that publication of such legislation is a vitally important factor both for protection of the affected persons as well as for keeping the administrative agency in line with democratic principles. The Committees have made a number of other suggestions to improve the procedure and techniques of rule-making. For example, even when the parent Act did not contain such a provision, in several cases, the Committees have insisted for draft rules being circulated and objections invited thereto from the affected interests before finalisation of the rules.78 The committee has stated that where draft rules are published to invite comments from the public, sufficient time (at least 30 days) must be given to the public for the purpose, and to ensure this the date on which the gazette containing the draft rules was made available to the public should invariably be mentioned in the preamble to the rules when they are finally notified.79 From the above brief resume of the work done by the Parliamentary Scrutiny Committees, it would appear that the Committees on Subordinate Legislation of the two Houses constitute an important agency through which parliamentary control over delegated legislation is exercised in India. It is through these Committees that 'Parliament keeps a watchful eye on the government departments to whom the power of legislation is delegated and maintains its control over such delegated legislation. The Committees have been doing useful work and trying to develop some norms and standards for the Administration to follow in the task of rule-making. The role of the Committees is not only curative, or critical, but also preventive. The value of these Committees does not lie only in the number of cases they expose of administrative lapses. Their existence keeps the Administration on its guard, and discourages it from doing things which the Committees have criticised, and thus the Administration becomes more careful in using its power of rule-making. There has been a good deal of co-operation between the Committees and the Government and the latter has implemented invariably most of the suggestions made by the former. Even in cases where a difference of opinion arises between a Committee and the Government there is discussion between the two with a view to evolving norms which may be acceptable to both. It may, however, be noted that these Committees do not have any effective sanction in their hands. Whatever has been achieved by the Committees has been through discussion between them and the rule making departments. But where this process fails, the Committees have no recourse except to report to Parliament. Also, these Committees do not go into questions of merits or policy underlying delegated legislation, and the area of administrative policy-making is largely immune from the Committees' scrutiny. To this extent, the efficacy of the Committees is limited for much of the policy is made to-day by the Administration through its power to make rules and the Legislature cannot always effectively scrutinise such policies. This weakness in parliamentary control of delegated legislation remains and no effective method has been devised so far to fill in this gap, except to some extent, through the consultative technique discussed below. It is suggested that Parliament should develop some mechanism to examine in detail the substance of delegated legislation. 2. PUBLICATION There is a well-known maxim that ignorance of law is no excuse, and that every one is presumed to know the law. But this maxim can apply legitimately only when there exist channels for publication of the law enacted from time to time. Publication of law is extremely important as it enables the people to know what the law is. It will be unfair to make people liable for breaking a rule if it was never published or brought to their attention. 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. For an individual, publication of delegated legislation is no less important than that of the Acts of Legislature, because in many cases, it is the delegated legislation to which he must turn to ascertain what he may not do. In most cases, the rights of the individuals are regulated by rules which impose obligations on them and the breach of the rules may subject the concerned person to penal sanctions. It is essential, therefore, that adequate means are adopted to publicize delegated legislation so that people are not caught on the wrong

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foot in ignorance of the rules applicable to them in a given situation. The system of publication ought to be such that delegated legislation is not only made known to the people, but it is also easy to locate as and when necessary. In England, systematic publication of delegated legislation is ensured by the Statutory Instruments Act, 1946.80 A statutory instrument81 of a general nature is to be sent to the Queen's Printer as soon as it is made to be numbered, printed and sold to the public.82 Subject to a few exceptions, every statutory instrument must bear on its face a statement showing the date on which the instrument came or will come into force. In any proceedings against a person for an offence under a statutory instrument,83 it is a good defence that the instrument had not been issued by Her Majesty's Stationery Office at the date of the alleged offence unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the statutory instrument to the notice of the persons likely to be affected by it. This provision thus ensures that some steps have been taken to acquaint the people with a particular statutory instrument before a prosecution is launched. The provision seeks to avoid the danger that a person might be convicted for contravening a rule the existence of which he had no means of knowing. Under this provision, actual knowledge of the instrument is not necessary. What is necessary is that either the instrument had been published and issued before the date of its infringement, or reasonable steps had been taken to bring its purport to the notice of the persons likely to be affected by it. According to these provisions, there is a distinction between making and publication of an instrument. An instrument comes into effect when made, or from the date fixed for its commencement. Its non-publication does not affect validity or effectiveness. The requirement of publication of an instrument is only directory, purely a matter of procedure. Publication of an instrument in the manner prescribed is a notice to every one of its existence. Lack of publication thus only raises the question of lack of notice of its existence, but notice can be proved otherwise than publication as stated above. S. 2(1) of the Statutory Instruments Act does not refer to the making of rules through publication but of publication immediately after the making of any statutory instrument. The idea of the provision is to give 'constructive' notice of the rules made to the affected persons.84. S. 3(2), SIA, envisages only a criminal liability. This means that non-publication would not affect the validity of a statutory instrument altering civil rights. In the United States, before 1935, there existed no provision for publication of delegated legislation. Affected persons thus remained uninformed and could hardly locate the rules applicable to them. The unsatisfactory state of affairs was forcefully exposed in the Panama case85 where the United States Supreme Court found that because of inadequate publicity, the industry, the enforcement officers, the lower courts were all unaware that a NRA regulation on which the proceedings were based in the case had been revoked. This disclosure, and the resulting uproar, led the Congress to enact the Federal Register Act in 1935.86 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." The Register is published every day from Monday through Friday. 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; failure to publish renders a regulation unenforceable, except against a person who has actual knowledge thereof. A corollary of the above principle is that 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. The provisions for publicity of delegated legislation have been further strengthened by the Administrative Procedure Act, 1946.87. Under S. 552(a)(1), every agency is required to publish in the Federal Register, description of its central and field organisation, rules of procedure, substantive rules of general applicability adopted as authorised by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency" for the guidance of the public, but not rules addressed to and served upon named persons in accordance with law. There is a general requirement of pre-publication of rules in the Administrative Procedure Act. S. 553(d) requires that substantive rules shall be published at least 30 days before the effective date thereof except as otherwise provided by the agency for good cause found and published with the rules. This gives a discretion to the agency to bring into immediate force rules which it thinks should be enforced immediately in public interest.88 This provision provides for deferred effectiveness of the rules. The underlying idea is to give a timely notice to the people of the forthcoming rules so that they have time to adjust themselves to the requirements of these rules and are not caught unawares.

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To further facilitate the task of an individual in finding a rule and its amendments, apart from publication in the Federal Register, rules are brought out in a codified form in the Code of Federal Register. Each volume of the Code contains an annual supplement for the current year containing amendments to the rules made during the last year. The code is divided into fifty subject-matter titles, and is revised annually. "The Code is a compilation, in logical order, of federal rules and regulations, arranged on an agency-by-agency basis."89 The authority for the publication of the Code of Federal Register is to be found in S. 311(a) of the Federal Register Act. In the USA, the approach seems to be to regard publication of rules as directory. The idea of publication at one place is to give "constructive notice" of the rules having been made.90 Of course, actual notice, if taken, is the "best of all notices." As against the above-mentioned provisions in the United Kingdom and the United States, 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 of their validity, and publication in the Gazette of India, or of the State concerned, as the case may be, is deemed adequate. The Indian Statute Book presents many variants of the publication requirement. But there are statutes which provide for the making of rules but are silent as to publication and make no stipulation that the rules made under them be published in some manner.91 Even in such a case, publication of the rules in the Official Gazette is regarded as an essential requirement for their validity. The matter was settled early by the Supreme Court in Harla v. State of Rajasthan.92 In this case, the law in question made by the Executive had remained buried in the government files for years without ever seeing the light of the day. There was no law requiring publication at the time when the law in question was made. Nevertheless, the Supreme Court held the law to be invalid. The Court emphasized that promulgation or publication of some reasonable sort is essential to bring a law into force, to make it legally effective, as it would be against natural justice to punish people under a law of which they had no knowledge, and of which they could not, even with the exercise of reasonable diligence, have acquired any knowledge. Thus, what the Court held in Harla was that promulgation or publication of some reasonable sort was essential to bring the law into being, to make it legally effective, but the Court left it vague as to what channels of publication were to be adopted. In State of Maharashtra v. George,93 the Supreme Court again ruled that in a situation where there is no statutory requirement for publication of the rules, it is necessary to publish the rules in the usual form, in such media as is generally adopted to notify to all persons concerned with the making of the rules. As publication of the rules in the Gazette of India is the usual method of bringing rules to the notice of the concerned persons, such publication was held to be sufficient in this case. The most common statutory provision to be found in India regarding publication of rules is the one requiring publication of rules in the official gazette. Each statute has to make such a stipulation as there is no general formula for the purpose. The usual formula used for the purpose is: The Central Government may, by notification in the official gazette, make rules to carry out the purposes of this Act. At times, however, a slightly different formula is to be found, e.g., S. 133(2) of the Motor Vehicles Act, 1939, ran as follows: "All rules made under this Act shall be published in the official gazette, and shall, unless some later date is appointed, come into force on the date of such publication." Any such formula makes publication of the rules in the official gazette mandatory. In case of formula one above, it can be argued that since it stipulates "making" of rules by "publication in the official gazette", the rules cannot be said to have been made if not published in the Gazette. Therefore, the rules are not enforceable if published in any other mode but not in the gazette.94 In case of formula two above, while the rules may be said to have been made before publication, their publication in the gazette is the condition precedent for the rules do not come into force without publication in the gazette. When rules are required to be published in the State Gazette, their publication in the district gazette, but not in the State Gazette, does not make them enforceable.95 At this place, reference may be made to Bangalore W.C.S. Mills Co. v. Bangalore Corporation,96 which introduced a discordant note in this regard. The statute in question required publication of the delegated legislation made thereunder in the official gazette. The municipality in question imposed a tax by resolution which was published in the local newspapers and was also communicated to those who were affected thereby. A statutory provision laid down that no act or proceeding taken under the Act was to be questioned merely on the ground of "any defect or irregularity in such Act or proceeding not affecting the merits of the case." The Supreme Court ruled that although the resolution in question was not published in the official gazette as the Act required, the defect was cured by this provision. The case refers to municipal resolutions and not ordinary delegated legislation made by the Administration. A factor present in the instant case was that the

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proposal to impose the tax was pre-published and objections were invited against it,97 and, accordingly, the affected persons had some notice. But, even so, the value of this case is dubious for several reasons, viz.: (i) the publication of delegated legislation in the gazette is the accepted mode. This is deemed to be the authenticated mode of publication. (ii) In many cases, the provision regarding publication of delegated legislation in the official gazette has been held to be mandatory. Therefore, lack of publication in the gazette cannot be made good by any other mode of publication; (iii) the "curing of defect clause", or the clause making "defect or irregularity in act or proceeding" non-challengeable, as already noted can only cure directory procedural defects but not deviations from mandatory procedural provisions. Therefore, the failure to publish in the gazette could not have been cured by this clause. The Govindlal case,98 mentioned below, has shaken the authority of the Bangalore case. Some statutes incorporate a requirement for publication of delegated legislation but leave the mode thereof to the choice of the rule-maker. Publication in the form prescribed by the Authority will be mandatory in such a case.1 A statutory provision authorised the State Government to lay down the syllabi for various examinations and publish the same in "such manner as may be prescribed." After that the Government could prescribe text books for various courses. The Supreme Court ruled that, under the statute, publication of the syllabi was essential. The Court emphasized that "publication" involves wider publicity than mere minimal. communication to the departmental officialdom; it involves publication of the syllabi to the academic world. "Necessarily publication is important", and "the State Government should not dismiss it as a ritual of little moment." In the absence of publication of syllabi, it would be void for the State Government to prescribe the text books.2 A word of comment may be said here on the above formula. The courts have always insisted on publication of rules in some recognisable manner or in the customary channel.3 From the point of view of the individual, it is unfair to publish rules in an obscure publication instead of the official gazette. Publication of the rules in the gazette has several advantages for the individual. First, publication of the rules in the official gazette gives authenticity to the rules and it creates certainty in the mind of the individual that the rules have been duly made. Secondly, the individual can have easy access to the rules for he knows where to look for the rules under any statute. It is, therefore, advantageous for him if all the rules are published in the gazette and not in sundry publications. From this point of view, the abovementioned formula of not prescribing the gazette as a mode of publication, but leaving the same to the discretion of the rule-making authority is anomalous for it will make knowledge of, and access to, the rules very difficult. The rule-making authority, may prescribe any mode of publication and the individual may not know where to locate the rules. Such a formula ought not to be used in statutes. Rules should be published in one customary channel, and not in different channels depending upon the sweet will of the concerned rule-making authority itself. Certain statutes specify special modes or forms of publication of rules made thereunder. While publication as such is mandatory, it is for the courts to decide whether the specific mode prescribed is to be regarded as mandatory or directory. In this connection, reference may be made to Govindlal4 where emphasis on publication reached its high watermark. Under the relevant Act, the Director of Agricultural Marketing could issue a notification to regulate purchase and sale of agricultural produce in any area. There was provision for pre-publication of the draft notification.5 The final notification needed to be published in the official gazette, as well as in Gujarati in a local newspaper. In this way, a double publication was stipulated for the final notification, viz., publication in the official gazette and publication in a local newspaper in Gujarati. In the instant case, the final notification was published in the Gazette, but not in Gujarati in a newspaper. The Supreme Court declared that the notification lacked legal validity. The Court ruled that publication of the notification in the newspaper was mandatory. The Court came to this conclusion not only because of the presence of the word 'shall' therein which usually makes a provision mandatory, but also because of the following reasons. The notifications under the Act could vitally affect valuable rights of trade and commerce of the people, and violation of the notification could subject them to penal consequences. Adequate publicity of the notification was thus a great necessity. The legislature did not regard mere publication of the rules in the gazette as an adequate means of publication. Publication in a newspaper attracts greater attention of the public than publication in the official Gazette, and, therefore, the same was obligatory. The statute itself devised an adequate means of due publicity, and there was no reason to depart from the mode prescribed by the legislature. A rule made under the Act in question had required that a copy of the notification "shall also be published by affixing a copy thereof at some conspicuous place in the office of each of the local

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authorities functioning in the area specified in the notification." The Court ruled that the requirements of this rule must also be complied with as the rule caused no inconvenience to the authorities charged with the duty of administering the Act. It is clear that this ruling lays great stress on complying with the statutory requirement regarding publication of the rules. Failure to publish the rules as required by the parent statute affects the enforceability of the rules and this lapse cannot be cured by invoking the doctrine of constructive notice of the rules to those who are affected by them. In Govindlal, in spite of publication in the Gazette, the rules were held to be not enforceable because of non-observance of the additional publicity procedure prescribed.6 Section 46(2) of the Police Act, 1861 prescribed that rules could be framed by notification in the Official Gazette. However, the administrative order in question in the instant case was not specifically under the section concerned but was referable to various powers available under the Act. Hence, its publication was held to be not necessary and non-publication did not render it ineffective.7 The publication of notice in the Official Gazette under Section 269-D(1) of the Income-tax Act, 1961 is the very foundation for initiation of proceedings for acquisition of immovable property under Chapter XX-A of the Act and only after this publication the competent authority gets jurisdiction to make an order for acquisition of the property. However, any error or mistake in the service of the show-cause notice under Section 269-D(2) to transferor and transferee of the said immovable property does not in any manner affect the jurisdiction conferred upon the competent authority to take proceedings for acquisition of the said property and service of such notice prior to publication is merely an irregularity and cannot have the effect of ullifying the entire proceedings, validly commenced.8 Section 69 of the Kerala Police Act, 1960 (5 of 1961) required the rules to be notified in Kerala State Gazette. Kerala GOMS No. 252/Home contained rules for appointment to the posts of Head Constables by promotion. It was published in Kerala Police Gazette and not in Kerala State Gazette. The Supreme Court held that such rules could not be said to be rules made under Section 69 and must be treated as an executive order only.9 In some cases, the Supreme Court has desisted from applying the statutory provision laying down the mode of publication of delegated legislation strictly and has become satisfied with a substantial compliance thereof. A notable case on the point is B.K. Srinivasan v. State of Karnataka.10. The relevant provision in the parent Act required publication of the approved plan in the official gazette. Instead of publishing the entire plan, the Administration published in the gazette a notice informing the public that a copy of the plan could be seen at the authority's office. The Supreme Court held this as substantial compliance with the prescribed publication procedure. Similarly, in State of T.N. v. Sun Paper Mills,11 a notification cancelling the earlier notification by publishing its number in the Gazette without mentioning the page, part and the section of the Gazette in which the earlier one was published, was held to be published in accordance with law. The Court also invoked the 'conclusive evidence' clause12. contained in the parent Act. The clause provided that "no act done or proceeding taken under this act shall be questioned on the ground merely of ... any omission, defect or irregularity not affecting the merits of the case." Calling it as 'Ganga' clause,13 the Court ruled that it would cure deviance from the publication procedural laid down in the Act. The "conclusive evidence" clause was thus being used to cure deviance from a mandatory provision. This case constitutes an example where the Court has become satisfied with a substantial compliance with a mandatory procedural norm. The mode of publication of the plan was prescribed in the Act, and the rules, viz., publication the Gazette which was not strictly followed. Here the Court has compromised two basic principles of Administrative Law, viz.: (1) a mandatory procedural provision must be strictly observed; (2) Rules must be published in the official gazette to make them enforceable. By a strange logic, the words in the statute "published in the Gazette" were strained to mean "published in the Gazette or some other place designated in the Gazette". The Court acquiesced in the executive view of the publication requirement which, in essence, was more'convenient to itself though not necessarily to the people. The attitude adopted by the Court in Srinivasan seems to be very much in variance with the Court's attitude in Govindlal. Also, the Court has given a very liberal connotation to the 'conclusive evidence' clause. A similar soft attitude on the part of the Court towards publication of the rules is evident in Sonik.14 The relevant provision in the parent Act required that the rules made by the municipality "shall be published by the municipality in the municipal borough, together with a notice reciting the (government) sanction, and the, date and serial number thereof." The tax imposed through the rules could not be levied before at least one month from the date of publication of such notice. In the instant, case, the concerned Municipality published a notice in a Gujarati newspaper that the Municipality had resolved to enforce the rules regarding the tax on buildings and lands. The notice after reciting the date, and serial number, stated that the rules could be

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inspected at the office of the Municipality on any working day and the copies of the rules could be purchased from the municipal office. The levy of the tax was challenged on the ground that the rules had not been published as envisaged by the relevant provision in the parent Act. Rejecting the argument, the Court rules that the provision in question in the Act did not prescribe any specific mode of publication. The provision envisaged that the rules must be published and that requirement had been complied with. The mode of publication was a matter of a directory nature. It is sufficient if it is reasonably possible for persons affected by the rules to get knowledge thereof with fair diligence. "Had the Act itself specified the mode in which the rules were to be published, that mode would have to be adopted for publishing the rules... But the Act is silent as to this." However, the Court did express the opinion that it would have been more desirable for the Municipality to have published the rules in the newspaper along with the notice. Again, while the statutory provision envisaged publication of the rules as such along with the notice, the Court was satisfied with a notice informing the people that the rules were available at the office of the municipality. Obviously, this was a case where a mandatory provision regarding publication of rules had not been strictly followed. Due publication of the rules in the mode required by the statute, or, in the usual mode, has the legal effect of notice to all concerned. In such a case, ignorance of the rules cannot be pleaded as a defence. This would be so even though the individual had no reasonable means of actually knowing the rules. In George,15 a notification of the Reserve Bank of India dated November 8, 1962, was published in the Gazette of India on 24th November, 1962 making bringing of gold into India as illegal. The accused left Switzerland on 27th November, 1962, with gold, and arrived in India the next day bringing with him gold in contravention of the notification. In his defence, he argued that he was not aware of the notification. Rejecting the argument, the Supreme Court said: "In a sense the knowledge of the existence or content of law by an individual would not always be relevant." The Court held that since the notification was published and made known in India, its ignorance by the accused was wholly irrelevant. The Court went on to observe that for an Indian law to operate and be effective in India, it is not necessary that it should either be published or be made known outside the country. The notification in question having been published in India on November 24, the ignorance of it by the foreigner was wholly irrelevant. Even though he had no actual notice of the notification it would make no difference to his liability. The Court rejected the argument that the notification in question would not be effective unless it was brought to the actual notice the respondent. The fact-situation in George very tellingly underlines the need of publicizing the rules, imposing new burdens on the people or making an existing legal activity as illegal, a reasonable time before they are to come into effect so that people are not caught unawares. This is the demand of the values of openness and fairness in the administration. This objective can be achieved by enacting provision for the purpose. As noted above, in the U.S.A. and England, lack of publication of delegated legislation only raises the question of notice.16 The position is different in India. In India, however, judicial view goes much further. Here the publication of rules is regarded as mandatory and so non-publication affects their legal validity and it is irrelevant that a person had any notice or knowledge of the rules in question. This point comes out very clearly in Govindlal. There was enough basis to assume in that case that the person prosecuted for the violation of the said rule had knowledge of it, or at least had "constructive" notice of it. But his conviction was quashed because the mandatory provision regarding additional publication of the rule in the newspaper had not been complied with.17 When does delegated legislation come into force ? The day on which it comes into force is connected with the publication of the rules. Usually, the rules themselves mention the date of their coming into force. If this date is a date subsequent to the date of their publication, there is no difficulty and the rules come into effect from the date mentioned. If this date is a date anterior to that of publication, this is also the date on which rules should come into force, unless they are held to be ultra vires on the ground of retrospectivity. When the date is not mentioned in the rules, there are three possible dates on which they may be held to have come into force: (1) the date on which they are made; (2) the date of their publication; or (3) in the case of the requirement of their publication in the gazette, or specified mode, the date on which the gazette is published. The difficulty arises because there is always a time-lag between the making of the rules and their publication. In the George case, the Supreme Court held that at least the rules in question (notification dated Nov. 8 published on Nov. 24 in the gazette) came into effect on the date of the publication of the gazette, and the question whether they came into effect at an earlier date was left open.18

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It is true that a statute comes into effect on the day it is made but this has no relevance to the rules because the proceedings for the making of the rules are not publicized. The Allahabad High Court, however, has held19 that the rules relating to conditions of service of government servants came into effect on the date they were made. The Court distinguished such rules from rules penal in nature. The Court stated: "We are dealing with certain rules framed by an employer with respect to conditions of service of his employees. There is no good reason why such rules should not come into force as soon as they are framed."20 Since publication of rules is deemed to be mandatory for their validity, it is clear that such rules as impose a liability or an obligation on the individual will become effective on the date the gazette is published, and not earlier. As some sort of publication is in any case mandatory, the date of making the rules becomes irrelevant for their effectuation and the second and the third dates, mentioned above, only are relevant. However, in view of the uncertainty existing on the point as to when the rules come into existence, the Supreme Court in George advocated the enactment of a statute, on the lines of the Statutory Instruments Act, to clarify the position. The best thing appears to be to adopt the date of publication of the gazette, or the specified mode, containing the rules (i.e. the third alternative) as the date on which the rules come into force. When can the gazette be said to be published ? Sometimes there may be a time-lag between the date of publication which the gazette bears and its actual publication in the sense of its copies being made available to the public. This question arose in G. Narayan Reddy v. State of A.P.21. A government notification increasing the rate of sales tax was published in the official gazette bearing 1st December, 1966, as the date. It was actually received by the subscribers on 25th December. The court on perusal of the official records found that the gazette was printed and released to the public on 12th December. It was held that the Government notification came into effect only on 12th December, 1966, and not earlier.22 Similarly, in G.T.C. Industries Ltd. v. Union of India,23. exemption in favour of cigarettes from excise duties was withdrawn by an order dated March 1, 1979. The Excise Department informed the petitioners about the withdrawal of exemption on Dec. 14, 1982. The withdrawal of exemption order was published in the Gazette which was on sale from Dec. 8, 1982. The Court ruled that the petitioners were liable to pay excise duties on cigarettes manufactured by them with effect from Dec. 8, 1982. The principle is thus established that an order becomes operative from the date from which the Gazette copies are made available to the public.24. If, however, the Administration takes some steps to bring the order to the notice of the public, before the Gazette copies are made available to the public, then the order may become operative from this date. A Central Excise notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette, then mere printing of it in the Gazette, would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.25 A prohibitory notification, notifying that the possession of certain kinds of arms in the notified areas was prohibited thus affecting the rights of the public, would come into effect from the date when it was published in the Official Gazette and not from the date of notification.26 An Office Memorandum (OM) was never made public nor was the existence thereof made known to any body concerned. The Apex Court held that it meant that it was never acted upon and hence, the same could not be relied upon by the Govt. to support its case.27 The Govindlal28 ruling would seem to indicate that when the parent Act requires publication of the rules in the official gazette as well as in some other mode, the rules would be regarded to become effective from the date on which all the requirements are completed. In case, no other requirement except publication in the gazette, is prescribed, the rules will become effective when published in the gazette. Justice demands that rules are not regarded as being effective before their publication. This is the trend of judicial decisions in India because here publication, and not mere notice, of the rules is required. This rule will also compel the concerned rule-making authority to ensure that the rules are published in the gazette as soon as possible after having been made. The object of publication in the Gazette is not merely to give information to public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of the making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspapers or may be broadcast by radio or television. If a question arises when was a particular order or

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rule made, it is the date of Gazette publication that is relevant and not the date of publication in a newspaper or in the media. In other words, the publication of an order or rule is the official irrefutable affirmation that a particular order or rule is made, is made on a particular day (where the order or rule takes effect from the date of its publication) and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in Courts to refer to the Gazette whenever there is a doubt about the language of, or punctuation in, an Act, Rule or Order. Section 83 of the Evidence Act, 1872 says that the Court shall presume the genuineness of the Gazette. Court will take judicial notice of what is published therein, unlike the publication in a newspaper, which has to be proved as a fact as provided in the Evidence Act. If a dispute arises with respect to the precise language or contents of a rule or order, and if such rule or order is not published in the Official Gazette, it would become necessary to refer to the original itself, involving a good amount of inconvenience, delay and unnecessary controversies. It is for this reason that very often enactments provide that Rules and/or Regulations and certain type of orders made thereunder shall be published in the Official Gazette. To call such a requirement as a dispensable one -- directory requirement -is, in our opinion, unacceptable. Section 21 of the Andhra Pradesh General Clauses Act says that even where an Act or Rule provides merely for publication but does not say expressly that it shall be published in the Official Gazette, it would be deemed to have been duly made if it is published in the Official Gazette.29 Khanna, J., speaking for himself and Shelat, J., in Sammbhu Nath Jha v. Kedar Prasad Sinha,30 observed that the requirement of publication in the Gazette is an imperative requirement and cannot be dispensed with. The learned Judge was dealing with Section 3(1) of the Commissions of Inquiry Act, 1952 which provides inter alia that a Commission of Inquiry shall be appointed "by notification in the Official Gazette". The learned Judge held that the said requirement is mandatory and cannot be dispensed with. The learned Judge further observed: "The commission of inquiry is appointed for the purpose of making an inquiry into some matter of public importance. The schedule containing the various allegations in the present case was a part of the notification, dated 12-3-1968 and specified definite matters of public importance which were to be inquired into by the Commission. As such, the publication of the schedule in the Official Gazette should be held to be in compliance with the statutory requirement. The object of publication in an Official Gazette is twofold: to give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents."

While pointing out the importance of subordinate legislation in the affairs of the modern State, Chinnappa Reddy, J., speaking for himself and G.L. Oza, J., made the following observations: "But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication."31

Where a notification withdrew an exemption granted earlier, whether the date coming into operation of such a notification would be the date on which the copy of the Gazette was made available for sale to the public or the date of its publication, the Apex Court left the question open.32 Where the parent statute prescribes the mode of publication or promulgation that mode has to be followed and that such a requirement is imperative and cannot be dispensed with.33 In Rajinder Singh v. State of Haryana,34 the Supreme Court observed that the requirement in Section 4(2) of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 41 of 1963 for publishing the contents of the declaration made under Section 4(1) in two newspapers in a language other than English was not mandatory and non-compliance therewith would not vitiate the original declaration. Moreso, when in the instant case, the said requirement was satisfied though belatedly. A levy created by a statute can be lifted, suspended or withdrawn only by a statute or in the manner prescribed by the statute creating the levy. Dispensing with the levy or payment of tax is a serious matter. It is done only with a view to promote a

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countervailing public interest. When such a power is conferred by legislature upon another authority, that authority has to, and can, exercise that power only in strict compliance with the requirements of the provision conferring that power. It is in the interest of the general public that such notifications are not only given wide publicity but there should also be no dispute with respect to the date of their making or with respect to the language and contents thereof.35 Whether the provisions of Section 11 of the A.P. Non-Agricultural Lands Assessment Act 14 of 1963 as to publication are mandatory or directory, the Supreme Court observed that it was not reasonable to hold that while other requirements mentioned in Section 11(1) are mandatory, and only the requirement of publication in the Gazette is not, or to make such a distinction in the context of the said sub-section. It held that the power given by Section 11 is of a substantive nature besides being in the nature of an exception and for this reason too, the provision conferring that power has to be complied with fully, i.e., in all respects.36 The Supreme Court applied the logic of A. Jhangal Kunju Musaliar v. M. Venkitachalam Potti, Authorised Official and ITO37 to the power delegated to the Govt. under Section 11(1) of the A.P. Non-Agricultural Lands Assessment Act 14 of 1963 to exempt any class of non-agricultural lands from the levy and held that the said power could be exercised not only prospectively but also retrospectively and upheld the retrospective operation given to GOMS No. 386 issued by the Government. It observed that the very existence of the GOMS No. 201 which was issued by the Govt. under no statutory provision and was not published in the Official Gazette either, became doubtful in view of the later GOMS No. 386 which was issued under statutory authority and was published in the Official Gazette. It was observed that there cannot be a statutory and a non-statutory G.O. on the same subject and covering the same period, inconsistent to each other as the GOMS Nos. 201 and 386 were.38 The Lok Sabha Committee on Subordinate Legislation has, however, made efforts to improve the informational side of the rule-making process in India. In cases where statutes do not require publication of the rules in the official gazette, the committee has recommended that the statutes be suitably amended to provide for publication of the rules.39 Besides, as a requirement of laying, Rule 319 of the Lok Sabha Rules of Procedure stipulates that each regulation, rule, etc., framed in pursuance of legislative functions delegated by Parliament to a subordinate authority, and which is required to be laid before the House, shall be numbered centrally and published immediately after its promulgation. A major defect existing in the method of publication of rules was that not all of them were published at one place in the gazette and there was no uniformity in the manner of numbering them so that reference to them became difficult. At first, therefore, the Committee desired that all statutory rules and orders be published in one section of the gazette and be centrally numbered from year to year. The Government found difficult to implement this suggestion. The Committee then made the following suggestions:40 (1) the Government should ensure that their notifications containing particular constitutional and statutory rules and orders are published in proper parts and sections of the gazette; (2) a yearly consolidated index should be issued; (3) a monthly index should be prepared covering all notifications published in any part and section of the gazette; (4) notifications regarding rules in each part and section of the gazette should be centrally numbered from year to year with a distinctive prefix;41 (5) a notification regarding rules should be referred to by its central number and year of its publication. As a consequence of these suggestions, the Government has evolved the following scheme of publication of rules with effect from March 1, 1958: Statutory rules and orders are serially numbered into three separate groups each with a distinct prefix. General statutory rules and orders of a general character issued by the ministries of Central Government (other than the Ministry of Defence) and by central authorities (other than the Union Territories Administration) are prefixed as G.S.R., are numbered serially and separately and are published in Part II, section 3, sub-section (i) of the Gazette of India,42 and those not of general character are published in Part II, section 3, sub-section (ii), are prefixed as S.O. and are numbered centrally and separately. Statutory rules and orders issued by the Ministry of Defence and prefixed as S.R.O., are numbered separately, serially and centrally and are contained in Part II, Section 4 of the Gazette of India. Rules and orders made by other offices or authorities are contained in other parts of the gazette.43 Each of them is an annual series. The Committee has also suggested that each order be given a number according to its date of publication, and not the date of issue, which could be given at the top of each order; that separate notifications be published under separate S.R.O. numbers; that several notifications should not be published under a single number as that is likely to cause confusion and inconvenience to everybody while making a reference to those notifications individually. Half-yearly indices of the statutory rules and orders should also be prepared.44

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Several other suggestions have been made by the Committee to improve the technique of publication of the rules so that they may be referred to conveniently, located easily and understood by the public, viz.,: (1) as rules are amended very often, the amended version of the rules should be reprinted very frequently and it should be done whenever extensive amendments are made to the rules;45 (2) rules and amendments thereto be given short titles in the body and at the top; (3) to make it possible to trace back the amendments, the S.R.O. numbers of the previous amendments or the original rules should be cited in the footnotes whenever rules are amended; (4) amendments to the same rules should be published in the gazette bearing the order numbers in the same sequence as are assigned to the amendments by the ministry;46 (5) explanatory notes, not forming part of the rules and amendments, should be appended to all rules and amendments in order to explain their general purport;47 (6) the precise statutory authority under which rules are made should be cited in the preamble of rules so that all concerned may know precisely the authority under which the rules have been made; (7) corrigenda to the rules should be published within fifteen days of the publication of the rules in which errors are found. In spite of the above recommendations of the Committee, the matter of publication of rules in the gazette remains unsatisfactory. The important recommendations whose implementation is essential for easy accessibility of rules have not been implemented, such as, the publication of a yearly consolidated index or a monthly index, making of any reference to the original rules or their previous amendments whenever the rules are amended, giving of explanatory notes to explain the general purport of the rules, reprinting of the up-to-date version of the rules whenever extensively amended, etc. The Committee again examined in 1981 the question of publishing an index to the rules (including the amending rules) and also giving references by means of footnotes to the original rules and amendments thereto and desired that it be done. It is suggested that at least the Government should bring out an Annual Index of Subordinate Legislation under the central statutes, apart from simply publishing of subordinate legislation in the drab document called the Gazette of India. The index may be divided in two parts--one part should contain the names of the statutes and subordinate legislation published under those statutes, and the other part containing subordinate legislation in alphabetical order. Both parts should give the following information: (a) Part and page number of the gazette in which published; (b) sections of the statutes under which the subordinate legislation has been made; and (c) a short comment against each subordinate legislation to show how it has affected the earlier subordinate legislation and the references thereto. It is the primary duty of the Government to improve access to subordinate legislation which is no less important than a law passed by the Legislature. Apart from the gazette, as stated earlier,48 there are a few other publications containing rules and statutory orders. The position from the publication point of view is, however, unsatisfactory on the whole. Consequently, it is not easy to find: the amendments made from time to time in the schedules to the various Acts; whether a particular rule is still in operation or not; whether it has been amended subsequently and, if so, where these amendments could be found; and whether any rules have been framed at all under an Act. The Committee has, therefore, suggested that there should be some publication of statutory rules and orders, on the lines of the United Kingdom's annual publication of statutory instruments,49 for the convenience of the public. The Government has found two difficulties in accepting the suggestion: pressure of work on the Government press which could not undertake such a voluminous work; its utility would not be commensurate with the high cost involved and it would be obsolete in no time. Instead, the Government, agreed to bring out an up-to-date publication of general statutory rules in force. Further, to give wide publicity to the rules as to make the public aware of them, the Committee has suggested that press communiqués should also be issued to give publicity to the general purport and effect of the rules. Further, advance copies of the rules of a general character be sent to the State Governments which should give wide publicity to them through their gazettes and also publicise their translations in recognised state languages. The Central Government has not favoured advance publicity of the rules in the States as premature leakage of rules might be prejudicial to the public interest. The Government has, therefore, accepted the Committee's suggestions subject to the rider that rules be published in the state gazette soon after their publication at the Centre. Regarding other suggestions, the Central Government has issued the necessary directions to State Governments. One suggestion may be made here. It has been said earlier that there is in India no general statute requiring publicity of rules and sub-rules. Though notification of rules and sub-rules in the gazette is attempted to be

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ensured, yet it would improve matters a great deal if a general provision is added in the General Clauses Act, 1897, on the lines of the Statutory Instruments Act, 1946, so as to ensure that rules and sub-rules are properly published, are made available to the public, and that no penalty for their contravention is incurred unless such publication is made.50 The Supreme Court has also suggested in George51 that an Act be enacted in India on the lines of the Statutory Instruments Act to clarify the law as to--(a) when subordinate legislation can be said to have been passed, and (b) when it comes into effect. At present, the law in India suffers from a certain amount of uncertainty. Passage of the law suggested "would be conducive to clarity as well as to the avoidance of unnecessary technical objections giving occasion for litigation." Another very important step which the Central Government ought to take is to improve the mechanism of publication so that people may have better access to delegated legislation than at present. India has no publication comparable to the American Code of Federal Register.52 The Government of India commenced in 1960 the publication of various rules in a codified form under the title "Statutory Rules and Orders." But the process was extremely slow. It took 20 years for the Government to complete the task of publishing all the 30 volumes by 1980. By the time the task was completed, the whole collection of rules had become outdated as many changes had occurred in the rules between 1960 to 1980. The Lok Sabha Committee on Subordinate Legislation pointed out in this connection that "the utility of the compilation is greatly marred by the fact that bulk of the work has already become out of date."53 On important subjects, the Ministers do bring out manuals containing relevant Acts and rules made thereunder. Thus, there are inter alia Income Tax Manual, Election Manual, Central Excise Manual, Customs Manual, Foreign Exchange Manual. There are some private publications of Central Government rules, e.g., Supplement to the Madras Law Journal, Current Central Legislation. A reference is printed every month in the All India Reporter--another private publication. These publications are helpful to the extent they go, but these are sporadic attempts. On the whole, the present-day system leaves much to be desired and needs to be improved. Rules of Business: The Central Government under Art. 77(3) and the State Governments under Art. 166(3) of the Constitution make rules of business. These rules are not publicized, not even in the official gazette as is usually the case with all other rules. Nevertheless, these rules are treated as having statutory force. These rules are meant for internal management of the Government. But they are important for the individuals dealing with the Government, as a decision made infringing the Rules of Business may be held ultra vires by the court. Whenever a need arises to refer to these rules to decide a case, the Government does present them in the court.54 (a) Criteria for promotion on the posts of private secretaries to High Court Judges The Chief Justice of the High Court of Bombay changed the criteria for promotion to the posts of Private Secretaries to the High Court Judges from seniority to merit-cum-seniority which was struck down by the Division Bench of the same High Court on ground of lack of due publicity. The Apex Court held that the question of giving publicity to the criteria would not arise as the Chief Justice had formulated the criteria for filling up the post of Private Secretaries which he thought appropriate for efficient administration and discharge of the duties of the Judges.55 3. CONSULTATION OF INTERESTS A modern and effective technique of controlling the exercise of power of delegated legislation is "consultation of interests" affected by the proposed rule-making. Public participation in, or what is also known as the democratisation of, the rule-making process is regarded as a desirable safeguard, for it enables the interests affected to make their views known to the rule-making authority, and thus help in the framing of the rules. This may serve as a significant safeguard against an improper or wrong exercise of its power. The rationale behind this technique is that legislation is primarily the function of the legislature where various interests are represented which can have their say when the legislature legislates. A major criticism of the use of delegated legislation is the lack of public debate when it is made. When a bill is discussed on the floor of the legislature, the interested persons get ample time to react to the statutory proposals. But it is not so in case of rule-making. If, therefore, a legislature cannot itself legislate, or scrutinise rules made by the

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Administration, there must at least be some procedure for the affected interests to present their views to the concerned rule-making authority. This is one way in which, to some extent, the objections to bureaucratic legislation may be minimised and an improper use of rule-making power avoided. This process of exchange of ideas is beneficial to both: to the affected interests itself insofar as they have an opportunity to impress on the authority their point of view; to the rule-making authority in so far as it can gather necessary information regarding the issues involved and thus be in a better position to appreciate a particular situation. The Administration is not always the repository of ultimate wisdom; it learns from the suggestions made by outsiders and often benefits from that advice. A consultative technique is useful in balancing individual interests and administrative exigencies. Consultation ensures that delegated legislation is passed by the authority concerned with adequate knowledge of the problems involved, and that the rule-making agency has before it all relevant materials so that it does not make decisions on insufficient information. Making rules regarding the present day complex problems involving economic, technical, and other difficult issues requires expert knowledge and adequate and reliable data. This often needs to be collected by the Administration from outside sources, that is, from persons who are likely to be affected by the rules and who are able to grasp and assess their significance, effect and practicability. Consultation with such interests by the rule-making authority ensures that the latter will be apprised of all facets of the problem sought to be dealt with by the rules; and that it would make necessary adjustments in the rules, before, rather than after, their promulgation so that the rules made by it have a better chance of coping with the problems sought to be solved. The technique of consultation avoids a clash between the rule-making authority and the interests likely to be affected by the rules insofar as they can discuss and understand the various facets and implications of the proposed rules, and it thus secures a co-operative spirit between the two which is so very essential for the successful implementation of Government policies. People have a sense of participation in administrative process. Consultative process dilutes the stigma against delegated legislation of being bureaucratic and non-representative (because of its non-discussion in Parliament), as affected interests have a chance to have their say and affect administrative decisions. The consultative process can act as a salutary safeguard against any improper exercise of the rule-making power by the Administration. As the CMP observed: "Antecedent publicity is undoubtedly a safeguard of the highest value particularly where it leads to consultation with the interests concerned."56 Public airing of grievances and problems through rul-making makes the bureaucracy more responsive to public needs and acts as an important brake on administrative absolutism. The process of consultation has been facilitated by the emergence of organised groups in the society, such as, labour, manufacturers, wholesalers, professionals, etc. These groups are in a position to give expert advice and reliable information to the Administration, and their views the Administration cannot lightly ignore.57 Therefore, the technique of consultation is an inevitable pre-condition of the present day rule-making process. Most of the consultation between the Government and the various groups goes on informally, as a matter of departmental practice. What an Administrative Lawyer is concerned with is to ensure consultation on a mandatory and formal basis in the process of rule making. In England, there is a lot of informal consultation. But consultation as a matter of right arises only when it is prescribed by a statutory provision. There is no general statutory provision requiring consultation of affected interests in the rule-making process.58 From time to time, statutes specifically lay down some requirement or process for the rule-making authority to consult designated bodies or interests.59 Usually, the statutory requirement of consultation has been held to be mandatory by the courts.60 The technique of "consultation" is used much more extensively in the United States. Consultation of interests has become the keystone of the rule-making process. The Administrative Procedure Act in S. 553 lays down a minimal obligatory procedure generally requiring rule-making authority in every case to consult the interests affected.61 A general notice of the proposed rule-making is to be published in the Federal Register specifying the time, place and nature of the rule-making proceedings, the authority under which the rules are to be made, and either the terms or substance of the proposed rules or description of the subjects and issues involved. Interested persons are to be given an opportunity by the rule-making agency to participate in the rule-making through submission of written data, views, or arguments with or without opportunity of presenting the same orally in any manner. After considering the same, the rule-making agency is to finalise the rules and incorporate in them a brief statement of their basis and purpose. The procedure described so far is known as "informal rule-making". Here a formal hearing before rule-making is not necessary. This procedure is called "notice and comment rule-making". There is, however, an escape clause. Agencies are permitted to

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dispense with this procedure if they find for 'good cause' that this procedure is "impractical, unnecessary, or contrary to the public interest". The statute (APA) also provides for a "formal procedure" for rule-making, similar to the one followed in adjudicatory proceedings, when the rules are required by the parent statute to be made on "the record after opportunity for an agency hearing". In such a case, hearings are publicly announced in advance and any interested party is permitted to attend and testify. At such hearings, either the agency, or a member thereof or an examiner appointed by it, may preside. The presiding officer is to act in an impartial manner. Each party has a right to present his case or defence by oral or documentary evidence, and to conduct cross-examination. On the basis of this record, the agency or the hearing officer may take an initial decision and the parties are to be afforded a reasonable opportunity to make submission. The procedure is very much like the one followed in adjudication. This procedure is not prescribed by the statutes very commonly. However, even the 'notice and comment' requirement itself is a substantial step towards the democratization of the rule-making process as it involves antecedent publicity of the proposed rule-making and enables the affected interests to know about the proposed rule-making and to tansmit their views before the rules are finally adopted.62 The APA provides a minimum general procedure which is to be followed in all cases of rule-making, but specific statutes may lay dawn more elaborate procedures far intensive consultation of interests; same statutes even require adjudicatory or adversary type of hearing. Even though the APA does not impose the obligation of oral hearing in informal rule-making, use of such hearings in the rule-making has, however, become a common feature of the American administrative process. Hearings ensure a very wide participation of affected interests in the rule-making process and is very useful where affected interests are numerous and unorganised. In India there is no minimum formalized consultative procedure imposed an a rule-making authority. It is now a well established proposition in India that no hearing or consultation can be claimed by any one as a matter of right or natural justice, when the Administration is engaged in discharging a legislative functian,63 and the same cannot be challenged on the ground of non-observance of the principle of natural justice.64. According to the Supreme Court: "The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed".65. The courts argue that since a legislature does not hear or consult any one while legislating, so the Administration is not under any legal obligation to hear and consult any one, in the absence of a legal provision to that effect, while making rules. The flaw in this judicial argumentation is that an analogy is drawn between a legislature and a rule-making body. The truth however is that such an analogy is far fetched. A representative democratically elected legislature is incomparable with a subordinate delegated legislation making body. The two have nothing in common with each other. A legislature consists of people's representatives and this factor provides protection against arbitrary legislation. In case of a legislative function exercised by the Administration, no such in-built restraint operates and, therefore, other controls have to be thought of to afford protection to the affected interests. Another argument advanced in this connection is that legislation does not involve any adjudication and, therefore, procedure by way of hearing cannot be implied from natural justice. To take an example of this judicial approach, the function of the Government in establishing a municipality has been held to be legislative in nature, and the Government is not bound to hear the persons affected thereby.66. Although the courts have refused to imply any consultative procedure in rule-making in the absence of any such statutory requirement, or legitimate expectation,67 they do however attach a good deal of importance to such a procedure being followed by the Administration. Several times the courts have underlined the importance of following such a procedure and have advised the administrative authorities to observe the same informally even when not bound to do so formally. In Laxmi Khandsari v. State of U.P.,68 a case under Art. 19(1)(g) of the Constitution, the Supreme Court rejected the contention of the sugarcane crushers that before issuing an order banning crushing of sugarcane, the Administration ought to have consulted them. The Court said that such an order being a 'legislative measure' "the rules of natural justice stand completely excluded and no question of hearing arises." Nevertheless, the Court suggested as a guideline for the future that while imposing such a ban, the Government "may consider the desirability of giving a bare minimum hearing," if not to all owners of khandsari units, at least to one representative of the association representing them and getting his views on the subject. If the matter is urgent and hearing may not be possible, at least a representation against the proposed action may be called for from such an association and considered. Said the Court: "Not that such action is a legal requirement but it will generate greater confidence of the persons

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who may be affected by an order to be passed against them."69 In this connection, reference may also be made to what has been said earlier.70 The advice given by the Court in Laximi Khamdsari, viz. that the Administration may suo motu adopt, without any mandatory legal requirement, a procedure of consultation with the representatives of the interests affected by the proposed measure is a very sagacious one and is relevant not only in the context of the specific factual situation in that case, but even in a wider context whenever the Administration seeks to proceed through a legislative order so as to affect the established rights and . interests of a group. Even where no formal consultative procedure is prescribed, the Administration can still resort to informal consultation with the affected interests. If this judicial advice is heeded to by the Administration, a voluntary consultative procedure in making delegated legislation will come into vogue, and it will democratise administrative process in India to some extent. In the absence of a statutory consultative requirement, there is no bar in the way of the bureaucracy to informally consult the affected interests. After all, this is the essence of democratic administration. But the more effective solution to promote consultation would be to incorporate a statutory requirement to this effect in the delegating statute, or better still to have a general provision similar to the one found in the A.P.A. in the U.S.A. As consultation cannot be claimed as a matter of right, in rule-making, it can only be claimed if it is provided for by a statutory provision, on the basis of legitimate expectation. A weakness of the Indian Administrative Process is that there is no general requirement for following any minimal consultative procedure imposed on rule-making authorities just as there is in the U.S.A. In India, if in a particular case, consultation is deemed to be desirable, the legislature will have to make a statutory provision for the purpose. Therefore, reference has to be made to the parent Act to see whether it imposes any consultative requirement on the concerned rule-making authority. One general proposition may however be stated here: if a statute provides for a consultative technique then the courts do regard it as a mandatory procedural requirement, breach of which may result in the invalidation of the rules made. (a) Some Statutory Consultative Formulae Some statutes create some kind of consultative mechanism. A scanning of the Central Statutes will reveal a variety of consultative formulae being used.71. For example, under S. Section 43 of the Motor Vehicles Act, 1939, the State Government may fix fares and freights but before a notification to that effect is issued, the Government has to invite objections and to give representatives of the interests affected an opportunity of being heard. Usually the sales tax statutes provide for giving prior publicity and an opportunity to make representations against the proposal to amend the schedule to the Act.72 Also, the municipal Acts provide for inviting objections against the proposal for extending the limits of a town area or a municipal body.73S. 5(b) of the Minimum Wages Act, 1948, provides that while fixing minimum wages, the Government shall publish its proposals by notification in the gazette for information of those likely to be affected thereby and specify a date, not less than two months from the date of the notification on which the proposals will be taken into consideration. After considering all representations received by it by the fixed date, the Government shall fix the minimum wages by notification in the official gazette. This procedure has all the elements of 'previous publication' procedure mentioned below, except for two significant improvements: (1) Here the method of publication is specified, viz., in the official gazette; in the 'previous publication', this has been left to the discretion of the rule-making authority. (2) A minimum period of two months is to intervene between publication of the draft proposals and their consideration by the Government. This provides an effective opportunity for the concerned persons to make their views known to the Government concerned as regards the draft proposals. As stated below, there is no such minimum period prescribed in the 'previous publication' procedure. Another technique used for consultative purpose is to require the rule-making authority to consult a committee consisting of the representatives of the affected interests. For example, S s. 8 and 9 of the Minimum Wages Act, 1948 provides for a Central Advisory Board and committees consisting of representatives of employers, employees and independent persons. The Government may consult these bodies for several purposes as laid down in the Act. The Drugs and Cosmetics Act, 1940, creates two bodies for consultation. One, the Drug Technical Advisory Board to advise the Central and State Governments on technical matters arising out of the administration of the Act. The Board consists of some officials ex officio, some nominated officials, and some persons elected by various concerned bodies. Two, the Drugs

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Consultative Committee consists of representatives nominated by the Central and State Governments, and advises these Governments on matters tending to secure uniformity throughout India in the administration of the Act. Acting on the advice of the Board, the Central Government banned the manufacture of a medicine. The Board itself had acted on the advice of the committee. The notification banning the medicine was challenged under Arts. 14 and 19(1)(g) of the Constitution. The Punjab and Haryana High Court upheld the notification relying on the consideration that the Board consists of experts and this ensures that the Board's opinion "has a rational basis and constitutes sufficient basis for the Central Government for satisfying itself to issue the impugned notification. . ." In assessing the validity of the impugned notification, the court gave a good deal of credence to the fact that the consultative mechanism created by the Act consisted of experts and elected representatives of the various interests affected and the Government acted on the advice of these bodies in banning the drug in question. In the words of the court: "As can be seen from the provisions of Section 5 of the Act, the composition of the Board is such it consists of persons who are technical experts, on various topics concerning the composition and properties of various ingredients used in manufacture of drugs and also experience about the good or bad effects of the manufactured drugs used for curing the different types of diseases. The Committee constituted under S. 7 consists of the representatives of the Central Government and one representative from each State nominated by the Central Government. As can be seen from the proceedings of the Board dated 22-4-1988, it is expressly stated that after the exchange of views amongst the members, each of whom is an expert on the subject-matter, they agreed that ban should be imposed on corticosteroids with other drugs for use in asthma also. The Board has clearly stated that the use of corticosteroids with other drugs for use in asthma therapy caused more harm than good to the patients as it was a long term therapy. The formation of that opinion is preceded not only by consultation with experts, but also consideration of the opinion of the Committee. We are of the view that the advise tendered by the Board consisting of experts, who have special knowledge and experience in respect of different kinds of drugs their special knowledge and experience and the opinion formed after due exchange of views in itself ensures that the opinion given by the Board has a rational basis and constitutes sufficient basis for the Central Government for satisfying itself to issue the impugned notification in exercise of its power under S. 26-A of the Act. When such a high powered body consisting of experts arrive at such a decision after due consideration and exchange of views, we have to presume that the advise tendered is good in the absence of any basis to characterise it as arbitrary. In this case there is no material or basis to discard the opinion formed and the advise tendered by the Board. Therefore, as the Central Government has exercised its power under Section 26A of the Act on the advise tendered by the Board, we are unable to agree that the impugned notification is illegal, arbitrary or violative of Articles 14 and 19(g) of the Constitution. The notification has a rational basis and has a clear nexus with the object sought to be achieved by Section 26A of the Act, and it also amount to a reasonable restriction in the interest of the general public as permitted by clause (6) of Article 19."74.

Section 59 of the Mines Act, 1952 prescribes consultation with the mining boards.75 Draft regulations are first referred to every mining board concerned with the subject dealt with by the regulations and its opinion is sought about the expediency of making the same and suitability of their provisions. The draft regulations are then subject to the procedure by way of "previous publication". It is further laid down that the minimum time-lag between the date of publishing the draft regulations and the date when the same are to be taken into consideration for finalisation is to be three months. In this way, an effective participation of the interests affected by the proposed rules is secured in the rule-making process. In Banwari Lal Agarwalla v. Bihar,76 the procedure laid down in Section 59 has been held to be mandatory; regulations made in contravention of this stipulation would not be valid, but constitution of the mining boards has been held to be directory. Some statutes even go to the extent of conferring power to initiate and frame rules on the concerned interests themselves. For example, under Section 9-A of the Forward Contracts (Regulation) Act, 1952, a "recognised association" is itself entitled to make rules with respect to several matters mentioned there. These rules become effective on being approved by the Central Government which can approve the rules with such modifications as it deems fit. At times, a statutory provision may say that the government may consult such bodies or associations as it may think fit.77 While such a provision stipulates some kind of consultation, it does not specify what interests should be consulted and leaves this matter to the absolute discretion of the government. The Drug (Price Control) Order, 1979, made under the Essential Commodities Act, lays down a procedure for fixation of drug prices. The procedure is in two stages: (1) the government may fix the drug process after making such inquiry as 'it thinks fit'; (2) a person aggrieved by a price-fixation order may seek review of the order by the government. Each stage may be regarded as designed to promote some sort of consultation

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between the drug manufacturers and the government in the matter of fixation of prices. Both at the inquiry stage as well as the review stage, the drug manufacturers may feed the government with necessary and relevant information having a bearing on the cost of production of drugs and other related matters as laid down in the Drug Order itself. The government of India issued an order fixing drug prices. The drug manufacturers applied for a review of the order by the government, but before the review could be completed, they moved a writ petition before the Supreme Court challenging the prices fixed. Their main contention was that the 'enquiry' as well as the 'review' both were quasi-judicial in nature to which the principles of natural justice ought to have been applied but were not applied.78 In Cynamide,79 the Court refused to interfere and rejected the manufacturers' contentions. Commenting on the procedure laid down in the Drug Order, the Court pointed out that price-fixation was a legislative function and, accordingly, neither the 'inquiry' nor the 'review' could be regarded as a quasi-judicial proceeding. The Court explained that the formula "such inquiry as it thinks fit" usually denotes that while the inquiry was a condition precedent to the price-fixing exercise, the nature and extent of the enquiry would be within the discretion of the concerned authority. The inquiry would not be open to challenge on the ground that it was not as full as it might have been. The provision is only an 'enabling' one and it enables the concerned authority to obtain relevant information having a bearing on the price-fixing from any one and from any source, not necessarily only the manufacturers. The provision does not vest any right in any one. The drug manufacturers could not therefore claim any notice or hearing by the government in the matter of price-fixing of drugs. As regards the 'review' procedure, the Court pointed out that it was difficult to fit it into any stereotype-legislative, administrative or quasi-judicial. The Court characterised it as being "in the nature of a legislative review of legislation, or more precisely a review of subordinate legislation by a subordinate legislative body at the instance of an aggrieved person." The Court refused to interfere in the matter in the instant case and directed the manufacturers to seek a review of the drug prices from the government. The government was asked to furnish to them the relevant information as to basis adopted by it for fixing prices. As regards the complaint of the drug manufacturers that the government was taking enormous time in reviewing the matter while time was the essence of the matter, the Court directed the government to complete the review within six months. (b) Previous Publication Coming to the actual statutory provisions requiring consultation with affected interests in rule-making, at times a statute may use the following formula: "The power to make rules shall be subject to the condition of previous publication." For example, S. 133(1) of the Motor Vehicles Act, 1939 ran as follows: "Every power to make rules given by this Act is subject to the condition of the rules being made after previous publication." The effect of the term 'previous publication' is defined in S. Section 23 of the General Clauses Act, 1897. The procedure by way of 'previous publication' includes the following several steps: (i) the rule-making authority shall publish a draft of the proposed rules for information of the affected persons; (ii) the publication shall be made in such manner as the authority deems sufficient; (iii) there shall be published with the draft rules a notice specifying a date on or after which the draft will be taken into consideration; and (iv) the authority shall take into consideration, while finalising the rules, any objections or suggestions which may be received by it. The objections are also to be considered by the authority giving sanction, approval or concurrence to the rules made by another authority. Finally, S. 23(5) says that the publication in the official gazette of a rule purporting to have been made in exercise of rule-making power after previous publication "shall be conclusive proof that the rule has been duly made".80 The technique of previous publication defers the effectuation of the rules for sometime, and gives an opportunity to the interested parties to have their say in the matter. The main object and purpose of publication of draft rules is to give an opportunity to affected persons to object to all or any of the proposed rules or make suggestions to alter or modify them. The condition of 'previous publication' is not to be found in many Indian statutes.81 There is no rational basis for including or excluding the formula in statutes. "While statutory rules and notifications vitally affecting private rights have been made without previous publicity, instances may be cited when the procedure has been used for matters of least importance."82 Such capriciousness is clearly discernible from the fact that while the requirement of previous publication was to be found for rules to be made under the Income Tax Act, 1922, it was dropped, without any apparent reason, in its successor the Income Tax Act, 1961. Even under one and the same statute, where rule-making power may be interspersed over several sections, rule-making under some provisions may be made subject to

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'previous publication' while rule-making under other sections may not be so subject. A typical example of this anomalous situation is furnished by Tulsipur.83 Under S. 39(3)of the U.P. Town Area Committee Act, 1914, the power to make rules under the Act was subject to the requirement of 'previous publication'. Under S. 3, the State government could by a notification extend the area of a notified area committee. This power was not subjected to 'previous publication' under the Act. The government extended the limits of the Tulsipur Town Area. The plaintiff whose factory now fell within the municipal boundaries and who was thus asked to pay octroi duty, challenged the notification on the ground that no opportunity was given to the affected persons to represent against extending the limits of the committee. The Supreme Court refused to read any such requirement in S. 3 arguing that no hearing could be claimed as a matter of natural justice when the Administration is performing a legislative function.84 Making of a declaration under S. 3 was held to be "legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration." This is an anomalous situation as the extension of the Act to a new area is a much more basic and crucial function, and affects the residents of the new area much more vitally than making of rules under the Act and yet hearing is given while making rules but not while extending municipal limits. Because of the several advantages flowing from 'consultation', it is advisable that the procedure by way of 'previous publication' be used as a general norm of rule-making as far as possible. If, however, in a situation it does not seem feasible to do so owing to the urgency of the matter, or in public interest, provision may be made authorising the rule-making authority to dispense with the procedure of previous publication after recording reasons for taking such a step, or a shorter period may be prescribed for filing objection. "Consultation of interests" should be the normal rule rather than the exception which it is at present. The government could avoid many pitfalls arising out of ignorance through consultation with the people in the know of things.85 The present procedure of "pre-publication" needs to be rationalised in several respects. There is no minimums time-lag prescribed between publication of the draft rules and their final making. If the rule-making agency is so minded, it can make the procedure of consultation a sham by prescribing a brief interval between the two crucial dates making it extremely difficult for the interested parties to file their views. In many cases, the time allowed for filing views is less than a week and sometimes the gazette containing the draft rules is available only after the date fixed for inviting comments has expired.86 The Karnataka High Court has ruled that the persons likely to be affected by the promulgation of the rules must have reasonable opportunity to go through the draft rules and file their objections and suggestions.87 Where only four days were given for filing objections and suggestions, there was really a denial of reasonable opportunity to persons likely to be affected thereby. "The opportunity to be afforded should be adequate and reasonable and should not be a sham, nominal or illusory." The efficacy of the procedure of "previous publication" very much depends on whether the time allowed is sufficient to enable the interested persons to submit their considered views in the matter. It is, therefore, necessary to amend the law and prescribe a period of at least 30 days for the persons to send their comments.88 Another weakness of the procedure is the absence of a prescribed method of publication of the proposed rules. Too much now depends on the discretion of the rule-making authority for publication is to be in such manner as the rule-making authority deems to be sufficient. Another snag of the procedure of the "previous publication" is that under Section 23(5) of the General Clauses Act, 1897, publication of the rules in the gazette is conclusive proof that the rules have been duly made. As has already been seen, the implications of the conclusive evidence clause are not very clear.89 The judicial view seems to be that such a clause can immunize only minor deviations from the prescribed procedure, but no major or fundamental step in the prescribed procedure can be ignored. It is not clear what elements in the procedure prescribed by way of previous publication are to be regarded as fundamental, and what elements of this procedure can the rule-making authority ignore without risking the validity of the rules made. The whole procedure as laid down in the General Clauses Act for previous publication is the product of the pre-Independence era and is, therefore, out of date in the context of modern thinking and democratic era. It is suggested that the relevant clause should be amended so as to take care of the comments made here and the conclusive evidence clause dropped from there so that the courts may declare the rules ultra vires if any of the prescribed elements of the procedure is ignored by the rule-making authority.

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The Lok Sabha Committee on Subordinate Legislation has taken note of long delays in several cases (sometimes as much as 2 to 4 years) between the publication of the draft rules and the final publication of the rules. This reduces the efficacy of consultative procedure. The Committee has recommended that the final publication of the rules should be within one year of the publication of the draft rules.90 (c) Pre-publication Procedure and the Courts The term 'Pre-publication' is being used here in a generic sense to denote publication of draft rules with a view to invite objections thereto. This is more general than the technical procedure laid down by way of 'previous publication'. The requirement of 'pre-publication' is contained in a number of Central and State statutes. Generally speaking, the courts tend to regard the condition of pre-publication of draft rules prescribed in a statute as mandatory,91 because pre-publication is a prelude to consultation with the concerned interests. If, however, the requirement of pre-publication has been substantially complied with, then deviations from some minor elements of prescribed procedure which may be characterised as directory, may not invalidate the rules made. A few examples may be cited from the case-law to illustrate this point. In Rajnarain'92 a provision authorising affected persons to file objections against any municipal taxation measure, was regarded a matter of 'policy', and so a matter lying within the power of the legislature and not of the executive to tamper with. In Lachmi Narain,93 the requirement of three months' notice to effect any modification in the schedule annexed to the sales tax law was held to be mandatory, as well as a matter of 'legislative policy.' One of the reasons favouring this judicial view was that it was necessary that the dealers and others likely to be affected by the proposed amendment should have sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment. But then there exist some judicial pronouncements where the courts have exhibited an indulgent attitude towards procedural lapses by the Administration in the matter of following the statutorily prescribed consultative procedure. One such case is Berar Swadeshi Vanaspati v. Shegaon Municipality.94 Under S. 67 of the C.P. and Berar Municipalities Act, 1977, whenever a municipal committee proposed to levy a tax, it would pass a resolution at a special meeting and publish it. Any inhabitant of the municipality could object to the proposed tax and the committee was bound to take the objection into consideration. Thereafter, the committee could seek the sanction of the State government to its proposal. After its sanction, the government could notify the tax. Under S. 67(8), a notification of the imposition of a tax under S. 67 "shall be conclusive evidence that the tax has been imposed in accordance with the provisions of the Act". In the instant case, levy of an octroi duty by the committee was challenged by some ratepayers on the ground that the committee did not consider the objections on merit, and since that was one of the essential steps for the validity of the imposition of the tax, S. 67 had not been complied with and so the imposition was invalid. The High Court found that the non-consideration of objections was an error in procedure, but it rejected the plea of invalidity by invoking the "conclusive evidence" clause contained in S. 67(8). On appeal, the Supreme Court agreed with the High Court view. The Court observed: "The language of subs. (8) lends support to this view. It provides that the issuance of the notification imposing a tax shall be conclusive evidence that the tax had been imposed in accordance with the provisions of the Act."95

Such judicial attitude seems to be inconsistent with the Rajnarain approach where consultative procedure was placed on a very high pedestal. The Supreme Court there characterised such a procedure as a matter of legislative policy with which the Administration could not trifle. If consultation is given such a fundamental importance, and it should be so treated as it promotes democracy, then its non-compliance cannot be cured by the 'conclusive evidence' clause which should cover only minor deviations from procedure. In Raza Buland Sugar Co. v. Rampur Municipality,1 a statutory provision requiring a municipality to publish draft rules imposing a tax with a view to consult the inhabitants of the area was held to be mandatory for "the purpose of such publication obviously is to further the democratic process and to provide a reasonable

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opportunity of being heard to those who are likely to be affected by the tax before imposing it on them." In the instant case, the statute required pre-publication of a resolution passed by a municipality in a newspaper published in Hindi. The municipality published the Hindi text of its resolution in a paper published in Urdu. It was contended that this invalidated the resolution when finally adopted by the municipality as the mode of publication as prescribed in the Act was not strictly complied with. The Supreme Court rejected the argument saying that so long as the publication is made in substantial compliance with the manner provided in the Act, that would serve the purpose, as the manner of publication is only directory. In the instant case, the paper in which the resolution was published had a much wider circulation than the paper published in Hindi which came out very irregularly. The court concluded that there was substantial compliance with the mode of publication stipulated in the statute and the resolution was validly passed. There was also the "conclusive evidence" clause which was held to cure such a defect. In Sitapur Municipality v. Prayag Narain,2 the concerned municipality imposed a water tax and this was challenged on the ground that not all the prescribed procedural requirements regarding pre-publication of the draft proposal and rules were observed. There were several irregularities in the procedure followed by the municipality in the pre-publication stage. But the Supreme Court held the levy valid saying that the procedural defects were not of a fundamental character and no substantial prejudice had been caused thereby to the inhabitants of the municipality because the object of the pre-publication, viz., to inform the inhabitants of the proposal so that they could file their objections to it had been fully achieved. The inhabitants had full opportunity to raise objections to the proposed tax.3 Above all, the Court also invoked the 'conclusive evidence' clause found in the relevant statute.4 On the other hand, in some later cases, a stricter judicial attitude may be discerned as regards pre-publication. In Govindlal,5, the Director of Agricultural Marketing was authorised by the relevant statute to issue a notification to regulate purchase and sale of agricultural produce in any area. Before issue of final notification, a draft notification had to be pre-published in the official gazette and as the statute said, it "shall" also be published in Gujarati in a newspaper having circulation in the area concerned. The Director could issue the final notification after considering any objection or suggestion received against the proposed notification. The question was whether prepublication of the draft notification in the gazette would be sufficient or whether publication in the newspaper was also required. The Court ruled that the publication of the draft notification in Gujarati in a local newspaper was mandatory and not directory. Mere publication in the gazette was not adequate to communicate the director's intention to those who would be vitally affected by the proposed notification. It is a matter of common knowledge that publication in a newspaper attracts greater public attention than mere publication in the gazette and that is why the legislature has directed publication of the draft notification in Gujarati in a newspaper so that those who would be vitally affected by the proposed notification could offer their objections and suggestions. The Court emphasized that the violation of the pre-publication provision "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 may be noted that the statute in question did not contain the "conclusive evidence" clause and this may have affected judicial attitude to some extent. In Bhau Saheb Tavnappa v. State,6 part of the pre-publication procedure was held to be directory and part mandatory. The provision in question was in two parts: (i) the notification 'may' be published in the language in the area in any newspaper circulating therein; (ii) the notification 'shall' be published "in such other manner as in the opinion of the State government is best calculated to bring to the notice of the persons in the area the intention aforesaid." The provision further said that the notification "shall invite" suggestions or objections from the public to be considered by the government. The first part was held to be directory, but the second part was held to be mandatory. As the latter part was not complied with, the final notification was held invalid and inoperative. In holding this part mandatory, the Court resorted to two arguments: (i) the word 'shall' and not 'may' was used in the rule laying down the procedure; (ii) it was important that the people ought to know what the government proposed to do so that they could file objections against it. It was an important procedural safeguard. Under the Orissa Municipal Act, 1950, the State government has power to declare an area as a 'notified area' to make provision for municipal services therein. But before issuing such a notification, the government has to publish it in the official gazette and also publish "at least in one newspaper circulating in the area" a proclamation announcing its intention to make the area a 'notified area' and inviting objections to the proposal. In the instant case, the proclamation proposing to make certain area

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into a notified area was published in English in a local Oriya newspaper. The said statutory provision does not prescribe the language in which the proclamation is to be published in a local newspaper, but in State of Orissa v. Sridhar Kumar,7 the Supreme Court ruled that publication of the proclamation in English in a local newspaper did not serve the statutory requirement, for, "having regard to the object with which a proclamation is required to be published ... it must be published in the local language of the area in which the newspaper circulates ... To reach out to the people, it must be published in a language with which they are familiar". The notification issued by the government was thus quashed. The proclamation was faulted on another ground as well. The statutory provision in question says that the State government may declare that it is necessary to make administrative provision "for all or any of the purposes" of the Act for the area proposed to be declared as a notified area. The proclamation in question was challenged as being vague as it did not specify whether all the purposes of the Act or only some of them, and if so which, were sought to be the subject of administrative provision in relation to the area. Accepting the contention, the Court emphasized that the statutory provision in question "specifically envisages that when issuing the notification contemplated therein the State government must decide whether administrative provision needs to be made 'for all or any of the purposes' of the Act in the area proposed to be notified. Unless the proposal formulated in the notification .. is precise and clear and indicates with sufficient accuracy the area intended to be notified, and further indicates whether the administrative provision is proposed for all the purposes of the Act or only some of them, and if only some of them then which of them, it will not be possible for the residents to properly avail of the right conferred on them by the statute to make their objections to the proposal of the State government." The proclamation in question was held to be vague, ambiguous and incomplete as it did not say whether the government proposed to make administrative provision in- the proposed area for all or some of the purposes of the Act. "It is not the kind of notification which will ensure that the intention behind making it and calling for objections will be served", said the Court. The Sridhar pronouncement shows that the Supreme Court attaches great importance to effective consultation of the people by the Administration in those matters which vitally affect them and where legislature statutorily prescribes a consultative process. In the instant case, it is true that constituting an area into a notified area is to the benefit of the people in the area as it results in provision of civic amenities and conveniences to the residents of the concerned area but, at the same time, it also results in imposition of taxes on them, and hence consultation with them must be an effective consultation.8 The courts do seek to ensure that the prescribed consultative procedure is followed by the Administration strictly so that there is effective consultation between the rule-making authority and the interests affected. A few examples may be cited here as to how the courts handle the question of observance of the consultative procedure. The Punjab Towns Improvement Act prescribes the procedure for framing of scheme by improvement trusts. An important element in the procedure is inviting objections, and consideration of these objections to the draft scheme. In the instant case, objections received against the draft scheme were not considered at all and the scheme was finally notified. S. 42(2) of the Act says that the scheme as notified "shell be conclusive evidence that the scheme has been duly formed and sanctioned." Nevertheless, the High Court ruled that the non-consideration of the objections could not be protected by the 'conclusive evidence clause.' The Court went on to state that this non-compliance with the procedure amounted to "colourable exercise of power", even to 'mala fides', which vitiated the procedure of framing of the scheme and this could not be protected by the 'conclusive evidence' clause.9 Recently, the Supreme Court has applied the provision regarding consultative procedure very strictly. S. Section 44 of the Delhi Development Act, 1957, requires that every public notice given under the Act "shall be in writing" over the signature of the Secretary to the Delhi Development Authority and "shall be widely made known in the locality to be affected thereby affixing copies thereof in conspicuous public places within the said locality or by advertisement in local newspaper of by any two or more of these means, and by any other means that the Secretary may think fit." The Supreme Court interpreting the provision in Syed Hasan Rasul Numa v. Union of India10 stated that the provision provides for three methods of publicity of the notice, viz.: (1) affixing its copies in conspicuous public places within the said locality; (2) publishing the same by the beat of drum; (3) advertisement in local newspapers. Of these, the authorities must follow any two methods. "This is mandatory. There is no discretion in this regard." Discretion has been left to the Secretary to follow more than the two methods. "It is also discretionary to follow any other means of publication that the Secretary may think fit." The Court stated: "This appears to be the only reasonable and sensible view to be

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taken by the overall structure of the section." The Court noted that S. 44 is not happily worded. The Court rejected the restrictive interpretation put on the provision by the government that only one mode of publicity is adequate. The Court adopted a liberal interpretation favouring wide publicity of the notice regarding the proposal to make modification in the Delhi Master Plan and inviting objections to the proposed change. The Court also insisted that the affected persons have a right to file their objections within the specified time, and that they have the further right to have the objections considered by competent authorities. The Court observed in this connection: "In order to effectuate these rights, the prescribed means of publication must be faithfully followed giving the persons clear notice as specified in the statute. The provision providing such notice to persons whose rights or interests are likely to be impaired must always be considered as mandatory. As otherwise, it would defeat the very purpose of giving public notice inviting objections and suggestions against the proposed action."

In the instant case, the notice was published in several newspapers. But that was only one of the three modes of publication provided under S. 44. This 'apparently fell short of the mandatory requirements of S. 44" Since the mandatory requirements of S. 44 had not been complied with, the notice in question had no validity and the action taken pursuant thereto had also no validity. What had happened in the instant case was that the petitioners having come to know of the notice late, sent their objections after the last date fixed for the purpose, and these objections had not been considered. Thus, there was prejudice to the petitioners. Clarifying the position, the Court observed: "We do not however, mean to say that the appellants have a right to have their belated objection considered by the authorities. If there was valid publication of the notice as prescribed under the law, they ought to have filed the objection within the period specified in the notice. They could not file their objection after 'he prescribed period and complain that they have been prejudiced by non-consideration of the objection. The prejudice would be presumed only when the objection filed within the prescribed period is not considered by the competent authorities."

It is clear from the tenor of the above pronouncement that the Court attached great importance to the consultative procedure prescribed by the parent statute and insists that the same be followed meticulously. If not so followed, the resultant order would be held to be invalid. (d) Legitimate Expectation Lately, however, the courts have developed a novel doctrine in public law, viz., a duty to consult may arise out of 'legitimate expectation' based either on a promise by the rule-maker11 to consult the affected persons or by an established practice of consultation.12 The doctrine has been discussed fully later13 but one case may be mentioned here to give some idea of the nature of the doctrine. In England, Lord Chancellor made certain regulations fixing the fees payable to barristers under the Legal Aid Act. The court granted permission to the chairman, Bar Council, to seek a declaration challenging the regulations on the ground that a decision was taken by the Lord Chancellor without consulting or negotiating with the bar despite the expectation that such consultation would take place. There was hearing on the application in the court, but the court did not have to decide the matter finally as the Lord Chancellor agreed to discuss the matter with the bar. The doctrine of 'legitimate expectation' seems to have been established now in the rule-making sphere requiring the rule-maker to consult the affected interests in certain circumstances.14

1 Supra, Chapter V. 2 For a detailed discussion of this topic, see, M.P. JAIN, Parliamentary Control of Delegated Legislation in India, 1964 Public Law 33, 152. 3 Lok Sabha rule 70; Rajya Sabha Rule 65.

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4 See under heading: Parliamentary Scrutiny Committees, infra this chapter. 5 See, First Report (I L.S.), 1 (1954); Second Report (III L.S.), 1 (1954). 6 Directions 103A of the Speaker in Directions by the Speaker of Lok Sabha, 66 (III ed. 1980). 7 GARNER, Administrative Law, 60 (1985). 8 See REID, Parliament & Delegated Legislation in NETHERCOTE, Parliament & Bureaucracy, 149-168 (1982). 9 Administrative Law by WADE & FORSYTH, Eighth Edn., p. 878. 10 Constitutional and Administrative Law by STANLEY DE SMITH and RODNEY BRAZIER, 7th Edn., as cited in Quarry Owners' Assn. v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 47: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 11 On laying procedure and its advantages, see, Thanmal v. Union of India, AIR 1959 Raj 206 [LNIND 1959 RAJ 195] [LNIND 1959 RAJ 195] [LNIND 1959 RAJ 195]. Members can raise, within the limits of parliamentary procedure, such discussion as is possible over the rules and criticise illegal or extravagant use of rule-making power. Members can also press for the repeal of the statutory provision under which obnoxious rules are made and also revoking of those rules: Fifth Report (R. S.) 5 (1968). Also see, Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601; JAIN, Cases, Chapter IV, 198, and Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: (1979) 2 SCC 196: 1979 Crlj 927, where the Supreme Court has referred to the various forms of laying procedure. 12 Forty-fifth Report (R.S.), 17-18 (1981). 13 Fourteenth Report (V L.S.), 4 (1974); Eighth Report (VII L.S.), 3 (1981). This has now been done. Parliament has enacted the Delegated Legislation Provisions (Amendment) Act, 1985, incorporating the standard formula of laying and annulment of delegated legislation in a number of old central statutes. This is the second such legislation. Earlier, the Delegated Legislation Provisions (Amendment) Act, 1983, had likewise amended fifty Central Acts introducing a laying provision in each of them. 14 Tenth Report (V L.S.) 31 (1974). 15 Twentieth Report (VI L.S.) 3-19 (1979). 16 See, infra, next Chapter. 17 Twenty-first Rep. (VI L.S.), 7-8 (1979). 18 Second Rep. (VII L.S.), 7 (1980). 19 Sixth Rep. (VII L.S.), 35-36 (1981). 20 Sixth Rep. (VII L.S.), 35-36 (1981). 21 Direction 103, Directions by the Speaker Lok Sabha 65 (3rd ed., 1980). 22 See, The Committee on Subordinate Legislation, 25 Jl. of Parl. Information, 482, 489, note 29(1979). 23 (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 45: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 24 Union of India v. National Hydroelectric Power Corporation, Ltd., (2001) 6 SCC 307 [LNIND 2001 SC 1459] [LNIND 2001 SC 1459] [LNIND 2001 SC 1459], 309 (para 8): AIR 2001 SC 2512 [LNIND 2001 SC 1459] [LNIND 2001 SC 1459] [LNIND 2001 SC 1459]. 25 R. v. Secretary of State for Social Services, ex p. Camden London Borough Council, (1987) 1 WLR 819. 26 Bailey v. Williamson, (1873) 8 QB 118. Also, C.B. BOURNE, Delegated Legislation, 28 Can BR 791 (1950); 66 LQR 299 (1950); ALLEN, Law and Orders, 144 (1985). 27 Jan Mohammad Noor Mohammad v. State of Gujarat, AIR 1966 SC 385 [LNIND 1965 SC 194] [LNIND 1965 SC 194] [LNIND 1965 SC 194]: 1966 (1) SCR 505; Krishna Khanna v. State of Punjab, AIR 1962 Punj 132; State v. Karna, 1973 Crlj 1871; Mathura Prasad Yadav v. Inspector General, Rly. Protection Force, Rly. Board, New Delhi, 1974 Lab LC 1177. 28 AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: 1979 Crlj 927: (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]. See also State of M.P. v. Hukum Chand Mills Karamchari, (1996) 7 SCC 81, 82 (paras 3 and 5); D.K. Krishnan v. Secretary, Regional Transport Authority, AIR 1956 AP 129 [LNIND 1955 AP 153] [LNIND 1955 AP 153] [LNIND 1955 AP 153]: 1956 Andh LT 127: 1956 Andh WR 142; I.T.C. Bhadrachalam v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 656 (para 29); JAIN, Cases, Chapter V, 272.

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29 See, for instance, Narendra Kumar v. Union of India, AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 SCJ 214; Express Newspapers v. Union of India, AIR 1958 SC 578 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25]: 1961 (1) LLJ 339: 1959 SCR 12 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25]; In Re Kerala Education Bill, AIR 1958 SC 956: 1959 SCR 995. 30 Also see, Chapter V, under Procedural Ultra Vires. 31 Jagadale & Sons v. State, AIR 1990 Kant 262; JAIN, Cases, 280. 32 PEARCE, Delegated Legislation, 105-6 (1977). 33 Bank of India v. O.P. Swarnakar, (2003) 2 SCC 721 [LNIND 2002 SC 817] [LNIND 2002 SC 817] [LNIND 2002 SC 817], 767 (para 124): AIR 2003 SC 858 [LNIND 2002 SC 817] [LNIND 2002 SC 817] [LNIND 2002 SC 817], following Jan Mohd. Noor Mohd. Bagban v. State of Gujarat, AIR 1966 SC 385 [LNIND 1965 SC 194] [LNIND 1965 SC 194] [LNIND 1965 SC 194]: (1966) 1 SCR 505 and Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: (1979) 2 SCC (Cri) 422. 34 Supra, Chapter V, notes 128-133. Also see, JAIN, Cases, Chapter V, Sec. B. Also see, Indian Express, Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541: (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 35 ALLEN, Law and Orders, 135. Also see, Report of the Davies Committee (1953). 36 Lok Sabha Rules 317-322; Rajya Sabha Rules 204-212. 37 C.M.P. Report, 11, 62-64, 68-50; supra, Chapter IV. Also see, GRIFFITH, Delegated Legislation: Some Recent Developments, 12 Mod LR., 297-306 (1946). 38 FOULKES, Administrative Law, 86 (1990); MCGOVERN, The Report of the Joint Committee on Delegated Legislation, 36 Mod LR 64 (1973); HAYHURST AND WALLINGTON, The Parliamentary Scrutiny of Delegated Legislation, [1988] PL 547. 39 See, The Committee on Subordinate Legislation, 25 Jl. of Parl. Inf., 482, 489 (1979). 40 Rule 320 of the Lok Sabha Rules. 41 For a discussion on the working of the Lok Sabha committee, see M.P. JAIN, Parliamentary Control of Delegated Legislation, 1964 Public Law 33, 152 (1964); The Committee on Subordinate Legislation, 25 Jl. of Parl. Inf., 482 (1979); First Rep. (VII L.S.), 28-35, 4551(1980). 42 Second Rep. (III L.S.), 1-7 (1963); Fifth Rep. (R.S.), 6 (1968); Ninth Rep. (R.S.), 10 (1971); Sixth Rep. (IV L.S.), para 19; Tenth Rep. (R.S.), 16 (1971). 43 Even as late as 1978, the Lok Sabha Committee on Subordinate Legislation indicated its unhappiness either for not laying the rules or delay in the matter: Twelfth Rep. (VI L.S.), 25 (1978); Fourteenth Rep. (VI LS), 18 (1978). 44 There are now two Committees on Papers Laid on the Table of the two Houses to examine delays in laying of papers. The Lok Sabha Committee was established in 1975 and the Rajya Sabha Committee in 1982. However, as a matter of practice, these committees are not concerned with the laying of rules. 45 Seventy-First Report (R.S.), 37 (1987). 46 Fourth Rep. (II L.S.), 4 (1958). Also see, supra, Chapter V. 47 Fourth Rep. (III L.S.), 7 (1965); Sixth Report (V L.S.), 12 (1973); Eleventh Report (V L.S.), 40 (1974). 48 Twenty Sixth Report (VII L.S.), para 29. 49 First Rep. (II L.S.), 3 (1957); Second Rep. (II L.S.), 2 (1957); Third Rep. (III. L.S.), 6 (1964); Thirteenth Rep. (R.S.), 10 (1972); Sixth Rep. (VI L.S.), 26 (1978). 50 Supra, Chapter V. 51 Fourth Rep. (R.S.), 1 (1968). Again, the Committee of Lok Sabha has emphasized that the language used in the rules "should be clear and unambiguous". The Committee has also objected to legislation by reference in some rules. Rules should be "self contained": Twenty-third Report (VIII L.S.), 16 (1988-89). 52 See, for instance, Twelfth Report (V L.S.), 13 (1974); Fifteenth Report (R.S.), 46-47 (1973); Eleventh Report (VI L.S.), 28 (1978); First Report (VII L.S.), 8 (1980). 53 Ninth Report (V L.S.) 34 (1973). 54 Ninth Rep. (R.S.) 1 (1971); ibid.

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55 Sixth Rep. (VII L.S.) 10 (1981). Also Eleventh Rep. (VI L.S.) 9-10 (1978). 56 Twentieth Report (V L.S.) 10 (1976). 57 Eleventh Rep. (VI L.S.) 9-10 (1978); Fourth Rep. (VII L.S.) 7 (1980); Forty-fifth Rep. (R.S.) 19 (1981). 58 In 1973, the House of Commons set up a Standing Committee to consider the merits of any statutory instrument and draft statutory instrument which may be referred to it. This committee is in addition to the Joint Scrutiny Committee mentioned above, supra, note 32. According to Yardley: "In recent years this new committee has done more and more work, serving a valuable function in debating issues of policy which have always been outside the purview of the various scrutiny committees." This new committee has a majority of government members. "What is achieved is that merits as well as form are ventilated in a committee of Commons, thus guarding against unforeseen errors and blunders." See YARDLEY, Principles of Administrative Law, 24 (1981). 59 Seventy First Report (Rajya Sabha), 16. 60 Twelfth Report (VI L.S.), 6-7 (1978). 61 First Report (IV L.S.), 13 (1968). 62 For instance, see, First Report (IV L.S.), 5 (1968); Seventh Report (V LS.), Nineteenth Report (V L.S.), 21 (1976); Twelfth Report (R.S.), 9 (1976); Thirty-first Report (R.S.), 16 (1979). 63 Sixth Report (V L.S.), 2-3 (1973). 64 Third Report (III L.S.), 2 (1964); Eighth Report (V L.S.), 2 (1973). 65 Thirteenth Report (VI L.S.), 11 (1978); Eighth Report (VII L.S.), 31 (1981). 66 Third Report (III L.S.), 2 (1964); Seventh Report (V L.S.), 11 (1973); Eleventh Report (VLS.), 17 (1974); Seventeenth Report (RS.), 9 (1974). 67 Second Report (III L.S.) (1964). 68 This has generally happened in case of rules imposing fees or some other charges. See, supra, Chapter V; M.P. JAIN, Parliamentary Control of Delegated Legislation in India, 1964 Pub Law at 158. An example in the non-financial area is R. 22 of the Minerals Conservation and Development Rules, 1958, requiring every owner, agent or manager of a mine to permit students of approved mining and geological institutions to acquire practical training in mines operated by them: Fourth Rep. (II L.S.), 2 (1958). 69 For instance, Cl. 22 of the Fertilizer Control Order authorising the State Governments to fix different fees for different classes of dealers for the grant of a duplicate licence or certificate of registration: Fourth Rep, (II L.S.), 3 (1958). 70 Apart from the rules being unfair on account of procedural grounds, the Committees have at times found them unfair on substantive grounds as well. See M.P. JAIN, supra, note 62 at 155-57. An example of substantive unfairness is the rule of a Cantonment Board which required water meters supplied by consumers at their cost to become the property of the board: Second Rep. (II L.S.), 3 (1957). 71 Fifteenth Rep. (VI L.S.), 16 (1978). 72 First Rep. (IV L.S.), 15 (1968); Ninth Rep. (R.S.), 13 (1971); Tenth Rep. (R.S.), 14 (1971). Also see, supra, Chapter V. 73 See Eighteenth Report (V L.S.), 33 (1976); Fourteenth Report (R.S.), 40 (1973): Thirty-first Report (R.S.), 37 (1979). 74 Fifty-seventh Report (Rajya Sabha), para 116. 75 Para 5. 10, p. 31 (1987). 76 Infra, under Publication. 77 First Rep. (R.S.), 5 (1966); Seventh Rep. (IV L.S.), 4 (1970); Eleventh Rep. (VI L.S.), 5 (1978). 78 Twenty-Third Report (VIII L.S.), 4 (1988-89); see, infra, under consultation. 79 First Rep. (IV L.S.), 8 (1968); Eighteenth Rep. (VI L.S.), 3 (1979); Fifth Rep. (VI L.S.), 15 (1978). See also, infra, under Consultation of Interests. 80 For relevant extracts from this Act, see, JAIN, Cases, 331. 81 A statutory instrument is a document by which power of delegated legislation is exercised by Her Majesty in Council by an order in Council, or a minister by a statutory instrument. Each enabling Act now lays down whether the power of delegated legislation under it is to be exercised through a statutory instrument or otherwise. When the power is to be exercised through a

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statutory instrument then the provisions of the Statutory Instruments Act apply. See, ALLEN, Statutory Instruments Today, ALLEN, Statutory Instruments Today, (1955) 71 LQR. 490. 82 S. 2(1) of the S.I.A.; also see, infra. 83 S. 3(2). See, Regina v. Sheer Metatcraft Ltd., (1954) 1 QB 586. 84 However, in Johnson v. Sargant & Sons (1918) 1 KB 101, a pre SIA case, an order was not given any operation (it was a case of civil liability) as it was not known to any one in the trade. Perhaps, this rule of common law may apply still to delegated legislation falling outside the coverage of SIA. 85 Panama Refining Co. v. Ryan, 293 US 388, 434 (1935). 86 GRISWOLD, Government in Ignorance of Law, 48 Harv LR, 198 (1934); SCHWARTZ, Casebook, 267. 87 For relevant extracts from this Act, see, JAIN, Cases, 337. 88 Of course, there appears to be some scope for improvement in the publication of the Federal Register as suggested by some writers. Newman, Government and Ignorance--A Progress Report on Publication of Federal Regulations, 63 Harv LR, 929 (1950); Futor, Modernising Federal Regulation Publications, 21 Fed. BJ., 219 (1961). The situation, however, is much better in the U.S.A. than what prevails in India. 89 SCHWARTZ, Administrative Law--A Casebook, 267 (1988). 90 S. 552(a)(1) of the APA says: "Except to the extent that a person hag actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." See, HUTTON, Public Information and Rule-making Provisions of the APA., 33 Temp. L.Q. 58 (1959-60); HAWKINS, A Note in 28 Wash. L.Q., 434 (1963). 91 See, for example, S. 63 of the Water (Prevention and Control of Pollution) Act, 1974. Also, S. Section 42 of the Industrial Finance Corporation Act, 1948, as originally enacted; S. 42 was later modified to provide for notification of the rules in the Official Gazette. 92 AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]: 1952 Crlj 54: 1952 SCR 110 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]. Also see, JAIN, Cases, Chapter V, Sec. D., 317. 93 AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: (1965) 1 Crlj 641: (1965) 35 Comp Cas 557. Also, JAIN, Cases, Chapter V, Sec. D., 319. 94 Narendra Kumar v. Union of India, AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375; Joint Chief Controller of Imports and Exports v. Aminchand, AIR 1966 SC 478 [LNIND 1965 SC 176] [LNIND 1965 SC 176] [LNIND 1965 SC 176]; State of U.P. v. Kishori Lal, AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500]: (1980) 2 SCC 8. Also infra. 95 In re Pesala Subramanyam, AIR 1950 Mad 308 [LNIND 1949 MAD 175] [LNIND 1949 MAD 175] [LNIND 1949 MAD 175]. 96 AIR 1962 SC 562 [LNIND 1961 SC 44] [LNIND 1961 SC 44] [LNIND 1961 SC 44]: 1961 (3) SCR 707. 97 On pre-publication, see, infra, in this chapter. 98 Govindlal v. Agricultural Produce Marketing Committee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]: (1975) 2 SCC 482: 1975 Crlj 1993. 1 Shakoor Hasan v. Emperor, AIR 1944 Nag 40; Leslie Gwilt v. Emperor, AIR 1945 Bom 368; Baboolal Rajulal v. Emperor, AIR 1945 Nag 218. 2 State of M.P. v. Ram Raghubir Prasad, AIR 1979 SC 888 [LNIND 1979 SC 102] [LNIND 1979 SC 102] [LNIND 1979 SC 102]: (1979) 4 SCC 686. 3 See, Harla v. State of Rajasthan, AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]: 1952 SCR 110: 1952 Crlj 54 and State of Maharashtra v. M.G. George, AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: (1965) 1 SCR 123: 1965 (1) Crlj 641. 4 Govindlal v. Agricultural Produce Marketing Coimmittee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]: 1975 Crlj 1993: (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]. Also see, JAIN, Cases, Chapter V, Sec. D., 322. 5 See, infra, on 'Pre-publication', in this chapter. 6 In another context, the Supreme Court has said of publication in the official Gazette that its "publicity value is by no means great": V.G. Row v. Madras, AIR 1962 SC 201 [LNIND 1961 SC 284] [LNIND 1961 SC 284] [LNIND 1961 SC 284].

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7 Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 [LNIND 2002 SC 396] [LNIND 2002 SC 396] [LNIND 2002 SC 396], 150 (para 39): AIR 2002 SC 2322 [LNIND 2002 SC 396] [LNIND 2002 SC 396] [LNIND 2002 SC 396]. 8 CIT v. Pearl Mech. Engg. & Foundry Works (P.) Ltd., (2004) 4 SCC 597 [LNIND 2004 SC 506] [LNIND 2004 SC 506] [LNIND 2004 SC 506], 603 (para 6): AIR 2004 SC 2345 [LNIND 2004 SC 506] [LNIND 2004 SC 506] [LNIND 2004 SC 506]. 9 K. Dayanandalal v. State of Kerala, (1996) 9 SCC 728 [LNIND 1996 SC 1187] [LNIND 1996 SC 1187] [LNIND 1996 SC 1187], 733 (para 10). 10 AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]: (1987) 1 SCC 658. Also see, JAIN, cases, Chapter V, Sec. D., 327. 11 (1998) 9 SCC 693, 695 (para 5). 12 On 'conclusive evidence' clasue, see, supra, Chapter V. 13 According to the Hindu tradition, the waters of the Ganga purify, cleanse the sins and remedy all insufficiencies. Therefore, the analogy is that like the Ganga, this clause would cure and remedy all deviances from the prescribed procedure. But, as the discussion on the clause would show, this is taking too broad a view of such a clause which has not been propounded earlier. 14 Sonik Industries, Rajkot v. Rajkot Municipality, AIR 1986 SC 1518 [LNIND 1986 SC 101] [LNIND 1986 SC 101] [LNIND 1986 SC 101]: (1986) 2 SCC 608. Also see, JAIN, Cases, Chapter V, Sec. D., 325. 15 State of Maharashtra v. M.G. George, AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: 1965 (1) Crlj 641: (1965) 1 SCR 123 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]. See also Union of India v. Ganesh Das Bhojraj, (2000) 9 SCC 461 [LNIND 2000 SC 357] [LNIND 2000 SC 357] [LNIND 2000 SC 357], 469 (para 14): AIR 2000 SC 1102 [LNIND 2000 SC 357] [LNIND 2000 SC 357] [LNIND 2000 SC 357]. 16 See under heading: Publication, supra in this chapter; see S. 307 of the Federal Register Act and S. 552(a) of the Administrative Procedure Act. 17 See also, D.B. Raju v. H.J. Kantharaj, (1990) 4 SCC 178 [LNIND 1990 SC 337] [LNIND 1990 SC 337] [LNIND 1990 SC 337]: JT 1990 (3) SC 148 [LNIND 1990 SC 337] [LNIND 1990 SC 337] [LNIND 1990 SC 337], where the principle of publication of delegated legislation was applied to the rectification of electoral roll. The rectified list was not at all publicized. "If the roll as it stood earlier, was confidentially corrected by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared according to law." The Court ruled out all modifications made in the list. Reference was made to Harla, Srinivasan and George. 18 See also Ramjilal v. Municipal Committee. Piparia, AIR 1959 MP 82, where it was held that the tax in question would take effect from the date of the publication of the notification directing its imposition. A contrary decision of the Allahabad High Court, in State of U.P. v. Bansidhar, AIR 1969 All. 184 [LNIND 1967 ALL 73] [LNIND 1967 ALL 73] [LNIND 1967 ALL 73], that in the absence of the notification mentioning the date on which the delegated legislation was to come into force, it did not come into effect on publication, does not seem to be good law. 19 Banarsi Das v. U.P. Government, AIR 1959 All. 393 [LNIND 1958 ALL 183] [LNIND 1958 ALL 183] [LNIND 1958 ALL 183]. 20 Banarsi Das v. U.P. Government, AIR 1959 All 393 [LNIND 1958 ALL 183] [LNIND 1958 ALL 183] [LNIND 1958 ALL 183]at 398. 21 (1975) 35 STC 319 (AP). 22 To the same effect is R.K.V. Motor & Timbers (P) Ltd. v. R.T.O., 1982 Ker. 156; Asia Tobacco Co. v. Union of India, (1984) 18 ELT 152. 23 (1988) 33 ELT 83 [LNIND 1987 BOM 485] [LNIND 1987 BOM 485] [LNIND 1987 BOM 485]; JAIN Cases, Chapter V, Sec. D., 333. 24 To the same effect is the ruling in Universal Cans Containers Ltd. v. Union of India, (1993) 64 ELT 23. 25 Collector of Central Excise v. New Tobacco Co., (1998) 8 SCC 256, 258 (para 12), followed in Garware Nylons Ltd. v. Collector of Customs & Central Excise, (1998) 8 SCC 282, 284 (para 4): AIR 1999 1999 SC 844which reversed Garware Nylons Ltd. v. CCE, (1992) 59 ELT 647. See also State of A.P. v. Twin City Jewellers' Association, (2005) 13 SCC 552, 554 (para 8). 26 S.K. Shukla v. State of U.P., (2006) 1 SCC 314 [LNIND 2005 SC 891] [LNIND 2005 SC 891] [LNIND 2005 SC 891], 327-28 (para 18), relying on State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580] [LNIND 2005 SC 580] [LNIND 2005 SC 580]. 27 Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644 [LNIND 1999 SC 1149] [LNIND 1999 SC 1149] [LNIND 1999 SC 1149], 658 (para 19): AIR 2000 SC 594 [LNIND 1999 SC 1149] [LNIND 1999 SC 1149] [LNIND 1999 SC 1149]. 28 Govindlal v. Agricultural Produce Marketing Committee, 1976 SC 263: (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND

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1975 SC 300] [LNIND 1975 SC 300]. 29 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 646 (para 13). See also Pankaj Jain Agencies v. U.O.I., (1994) 5 SCC 198 [LNIND 1994 SC 595] [LNIND 1994 SC 595] [LNIND 1994 SC 595]: AIR 1995 SC 360 [LNIND 1994 SC 595] [LNIND 1994 SC 595] [LNIND 1994 SC 595]. 30 (1972) 1 SCC 573 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53], 578 (para 17): AIR 1972 SC 1515 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53]. 31 B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62], 672-73 (para 15): AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]. 32 Khattar Enterprises (P.) Ltd. v. Collector of Customs, (1997) 11 SCC 654, 656 (para 3). 33 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 647 (para 15). 34 (2005) 9 SCC 1 [LNIND 2004 SC 1201] [LNIND 2004 SC 1201] [LNIND 2004 SC 1201], 10-11 (paras 10 and 11). 35 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 647 (para 16). 36 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 648 (para 16). 37 (1955) 2 SCR 1196 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]: AIR 1956 SC 246 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]. 38 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 656 (para 28). 39 See under heading: Parliamentary Scrutiny Committees, Chapter VI. 40 For a reference to the reports of the Committee on the subject, see M.P. JAIN, Parliamentary Control of Delegated Legislatoin, 1964 Public Law 33, 152 (1964). 41 The distinctive prefix will help in finding out the part of the gazette and the central number will help in locating the particular notification. 42 Ordinary issues of this part of the gazette are published every Saturday, extraordinary parts are published as and when the need arises. 43 Orders issued under the Constitution are serially numbered as C.O.1, C.O.2, etc. 44 The various recommendations of the Committee noted here are largely based on the provisions of the Statutory Instruments Act, 1946, and the regulations made thereunder. For provisions of this Act, see, JAIN, Cases, Chapter V, Sec. D. 45 This recommendation was reiterated by the Committee in 1978: Eleventh Rep. (VI L.S.), 16 (1978). 46 At present, it may happen that the order may fail to bear the same serial number in the same sequence as is assigned to the amendment. Thus, the seventh amendment may be printed as S.O, 419 of 1961, while the sixth may be printed as S.O. 546 and the eighth may bear the inscription S.O. 645. This practice is defective. 47 This is necessary because often the rules, like Acts of Parliament, are expressed in technical language which is not easily understood by the public. 48 See under heading: Publication, supra in this chapter. 49 The official publications on statutory instruments in England are: Annual Volumes of Statutory Instruments containing all instruments made, printed and sold during the year, and arranged according to subject-matter, and a classified list of local instruments at the end of the volume for the year, grouped according to their subject-matter. Two other important publications are: (1) Index to Government Orders (published in alternate years) for easily locating those general instruments which are still in operation. (2) Table of Government Orders which lists general statutory rules and orders and statutory instruments in chronological and numerical order, and shows which of them have been revoked, amended, etc., identifying the revoking Act or instrument. The Table also lists prerogative instruments. When any instrument has been amended, the Table gives particulars of the article, section, rule, etc., affected. All these publications seek to achieve the object of making the law, in its up-to-date form, easily accessible to the public. As compared to this elaborate scheme of publication of delegated legislation in England, India looks primitive. 50 See, Law Commission of India, XIV Report, at 708 (1958).

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51 State of Maharashtra v. M.G. George, 1965 SC 722: 1965 (1) Crlj 641. 52 See also under heading: Publication, supra this chapter. 293 US 388, 434. 53 Sixth Report (VII L.S.), 27-28 (1981). 54 Sanwal Ram v. Add!. District Magistrate, 1982 Raj 139. More will be said about these rules in a later chapter: see, infra, Chapter XXI. 55 Hon'ble Chief Justice, High Court of Bombay v. B.S. Nayak, (2001) 9 SCC 763, 764 (para 2). 56 CMP Report, 44 57 For example, the Central Government consults the Sugarcane Growers and Mill Owners' Association as regards the formulation of policies for development of the sugar industry. 58 The Rules Publication Act, 1893, made provision for antecedent publicity of rules, but the Statutory Instruments Act, 1946, dropped such a provision. The government argued that consultation with affected interests had become a routine administrative practice and so there was no need for a statutory provision requiring antecedent publicity. However, removal of a statutory provision was a retrograde step as it did free the Administration from any legal obligation to consult the affected interests. 59 For example, the Agricultural Act, 1947 requires the minister to consult bodies representative of the interests of landlords and tenants before making certain regulations and orders. A more elaborate procedure has been laid down in the National Insurance Act, 1946 under which a statutory committee has been created to give advice and assistance to the minister in connection with his duties under the Act. A preliminary draft of the proposed rules is submitted to this committee which hears objections and then reports to the minister who finalises the rules after considering the report. The rules and the committee's report are laid before Parliament and the minister has to give reasons for his departing from the report in case he does so. 60 See, R. v. Secretary of State, ex p. AMA, [1986] 1 All ER 164. For a general review of the position in England and the desirability of consultation of interests, see GRIFFITH, Delegated Legislation--Some Recent Developments, 12 Mod LR, 297 (1949); FITZGERALD, Safeguards in Delegated Legislation, 27 Can BR, 550 (1949); GARNER, Consultation in Subordinate Legislation, (1964) Public Law 105; JERGESEN, The Legal Requirement of Consultation, (1978) Pub Law; 290. 61 For text of S. 553 see, JAIN, Cases. Sec. E., Chapter V. 62 SCHWARTZ, Administrative Law--A Casebook, 274-303; SCHWART, Administrative Law, 165-77 (1976); FUCHS, Procedure in Administrative Rule-Making, 52 Harr LR, 259 (1938); DAVIS, Adm. Law, 241-7 (1977). Also see, PEDERSON, Formal, Records and Informal Rule-making, 85 YALE L.J, 38 (1975). 63 Supra, Chapter III; infra, Chapter IX; Tulsipur Sugar Co. v. Notified Area Committee, Tulsipur, 1980 SC 882: (1980) 2 SCC 295 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]. 64 I.E. Newspapers (Bombay) P. Ltd. v. Union of India, 1986 SC 515, 540: (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], also see, JAIN, Cases, Chapter IV, 269. 65 Sundarjas Kanyalal Bhathija v. Collector, Thane, 1991 SC, 1893, 1901: (1989) 3 SCC 396 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]. Also, infra Chapter IX; JAIN, Cases, 629 66 Sundarjas Kanyalal Bhathija v. Collector, Thane, 1990 SC 261: (1989) 3 SCC 396 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]: AIR 1991 SC 1893 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]. See also, Sundarjas Kanyalal Bhathiya v. Collector, Thane, 1991 SC 1893, 1901: (1989) 3 SCC 396 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]: AIR 1990 SC 261 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]. Tulsipur Sugar Co. v. Notified Area Committee, 1980 SC 882: (1980) 2 SCC 295 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]. 67 See, infra, Chapter IX, AIR 1991 SC 1893 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]: (1989) 3 SCC 396. 68 AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]: 1981 2 SCC 600. Also see, JAIN, Cases, Chapter V, Sec. C. 69 Also see WADE, J.'s decision in New India Industrial Corp. Ltd. v. Unon of India, 1980 Del 277. Holding the Ice Control Order, 1979, issued under the Commodities Act, 1955, as invalid, arbitrary and unreasonable vis-a-vis Art. 19(1)(g), WAD, J. pointed out that the said order contained routine provisions usually found in other control orders but which were impractical in case of a commodity like ice which melts away. The Judge emphasized upon the need of consultation of interests concerned calling it a 'salutary practice' which 'infuses bureaucratic legislation with democratic norms. 'Calling consultation as an 'administrative necessity' he said that the instant case "vividly illustrates the self-defeating consequences of non-consultation". Obviously, if the ic-etrade had been taken into confidence while drafting the order, many of the pitfalls arising from Administration's lack of experience and lack of knowledge concerning the ice trade could have been avoided. In this context, the Judge quoted a passages from JAIN & JAIN, Principles of Adm. Law (ed. 1979) at 90. Also see, Baldev Singh v. State of H.P., 1987 SC 1239: (1987) 2 SCC 510.

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70 See, supra, Chapter III. 71 For a description of the various consultative formulae, see, I.L.I., Delegated Legislation, 42-49 (1964). 72 See, The Punjab General Sales Tax Act, 1948. This type of procedure was involved in Rajnarain Singh v. Chairman, Patna Administration Committee, 1954 SC 569: 1955 (1) SCR 290 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102] and Lachmi Narain v. Union of India, 1976 SC 714: (1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]. 73 See, The Bihar and Orissa Municipal Act, 1922. See, Rajnarain Singh v. Chairman, Patna Administration Committee, 1954 SC 569: 1955 (1) SCR 290 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]. 74 Systopicalabo Ratoribs Pvt. Ltd. v. Dr. Them Gupta, Drugs Controller (India), New Delhi, AIR 1993 P & H. 28. On the other hand, the Bombay High Court declared the order invalid: Unichem Laboratories v. Union of India, 1988 Bom. 134. 75 Supra, Chapter V, under Procedural Ultra Vires. 76 AIR 1961 SC 849 [LNIND 1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56]: (1962) 1 SCR 33. 77 See, The Sugarcane (Control) Order. Also see, R. v. Secretary of State, exp. AMA, [1986] 1 All ER 166: JAIN, Cases, Chapter V, 297. 78 For discussion on Natural Justice, see, infra, Chapters IX and X. 79 Union of India v. Cynamide India Ltd., 1987 SC 1802: (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]. Also see, JAIN, Cases, Ch V, 310. 80 For text of S. 23, see, JAIN, Cases Chapter V, Sec. C (ii). 81 It has been stated in the Indian Law Institute's Study on Delegated Legislation in India, 38 (1964) that "not more than sixty central statutes existing until 1960 lay down the condition of giving antecedent publicity to the rules made thereunder." For example, see. S. 133(1) of the Motor Vehicles Act, 1939; S. Section 114 of the Insurance Act, 1938; S. 59(1) of the Mines Act, 1952; S. 17(1) of the Coal Mines (Conservation and Safety) Act, 1952: S. 85(1) of the Estate Duty Act, 1953; S. Section 30 of the Minimum Wages Act, 1948. 82 Indian Law Institute's Study on Delegated Legislation of India, 38, at 47 (1964). 83 Talsipur Sugar Co. v. Notified Area Committee, AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]: (1980) 2 SCC 295; JAIN, Cases, Chapter V, Sec. C., 284. 84 Also see under heading: Legislative Function, Chapter IX, for further discussion on the point. 85 See, The Sugarcane Control Order. 86 See M.P. JAIN, supra, 1964 Pub Law at 170. 87 Allisab Husensab Hulkoti v. State of Karnataka, 1980 NOC 110 (Kant). 88 See, Alisab Husensab Hulkoti v. State of Karnataka, 1980 NOC 110 (Kant). The Lok Sabha Committee on Subordinate Legislation has stated that draft rules should be published without delay. To avoid reduction of the period available to the public due to publication of draft rules in the gazette, it should be indicated in the preamble that draft rules will be taken into consideration 30 days after their publication in the gazette: Ninth Report (V L.S.), 4 (1973). See, Twenty Third Report (VIII) L.S.), 4 (1988-89). 89 See under heading: Conclusive Evidence Clause, Chapter V. 90 See, Fifteenth Report (V L.S.) 6 (1975). 91 See Kali Pada v. Union of India, 1963 SC 134: (1963) 2 SCR 904 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]: 1963 (1) Crlj 88; JAIN, Cases, 289. For the distinction between mandatory and directory provisions see, supra, Chapter V, 108d-117. 92 Rajnarain Singh v. Chairman, PA. Committee, 1954 SC 569: 1955 (1) SCR 290 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]. 93 Lachmi Narain v. Union of India, 1976 SC 714: (1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]. 94 AIR 1962 SC 420 [LNIND 1957 SC 18] [LNIND 1957 SC 18] [LNIND 1957 SC 18]: 1962 (1) SCR 596. 95 Berar Swadeshi Vanaspati v. Shegaon Municipality, 1962 SC 420: (1962) 1 SCR 596. See also under heading: Conclusive Evidence Clause, Chapter V.

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1 AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970. Also see, JAIN. Cases, Chapter V, 300. 2 AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969 SC 12]: (1969) 1 SCC 399; JAIN, Cases, Chapter IV, 263. 3 Also see, Municipal Board, Hapur v. Raghuvendra Kripal, 1966 SC 693: 1966 (1) SCR 950; Vallabhdas v. Municipal Committee, Akola, 1967 SC 133: 1961 (2) SCJ 194 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35]. 4 See under heading: Conclusive Evidence Clause, Chapter V. 5 Govindlal v. Agricultural Produce Marketing Committee, 1976 SC 263: (1975) 2 SCR 482: 1975 Crlj 1993. 6 AIR 1982 Bom 284 [LNIND 1981 BOM 184] [LNIND 1981 BOM 184] [LNIND 1981 BOM 184]. 7 AIR 1985 SC 1411 [LNIND 1985 SC 234] [LNIND 1985 SC 234] [LNIND 1985 SC 234]: (1985) 3 SCC 697. Also see, JAIN, Cases. Chapter V, 305. 8 Also see, Bhaskar Textile Mills Ltd. v. Jharsuguda Municipality, 1984 SC 583: (1984) 2 SCC 25 [LNIND 1984 SC 12] [LNIND 1984 SC 12] [LNIND 1984 SC 12]. 9 Jodh Singh v. Jullunder Improvement Trust, AIR 1984 P&H 398. 10 AIR 1991 SC 711 [LNIND 1990 SC 881] [LNIND 1990 SC 881] [LNIND 1990 SC 881]: (1991) 1 SCC 401. Also see, JAIN, Cases, Ch V, 308. 11 Re Liverpool Taxi Owners' Association, (1972) 2 All ER 589. 12 In re Westminster City Council, (1986)1 AC at 692; JAIN, Cases, 447, 487; C.C.S.U. v. Civil Service Minister, (1985)1 AC 374 at 415; JAIN, Cases, 491; R. v. Secretary of State for Transport, ex parte G.L.C., (1985) 3 All ER 300 at 316, 320. 13 See, infra, Chapter VIII & IX, for further discussion on the doctrine of legitimate expectation. 14 Regina v. Lord Chancellor, ex parse Alexander, (1986) Times Reports, 128, 129, 134, 144; JAIN, Cases, 288.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER VII SUB-DELEGATION OF LEGISLATIVE POWER

CHAPTER VII SUB-DELEGATION OF LEGISLATIVE POWER 1. SUB-DELEGATION In accordance with general principle, and with the few available authorities, it seems safe to presume that unless Parliament expresses or implies a dispensation, legislative power must be exercised by those to whom it is given, and not by further delegates. But this presumption is subject to circumstances, and may be greatly weakened in time of emergency. Power to make regulations was freely delegated in the First World War, although the Defence of the Realm Act did not authorise it expressly. No case came before the Courts to show whether delegation was lawful. But in the Second World War, the Supreme Court of Canada held that the Governor-General's emergency powers entitled him without express authorisation to delegate the power to make regulations.1 In Britain the Emergency Powers (Defence) Act 1939 itself gave express powers to delegate, so that an elaborate pyramid of regulations was constructed, delegated, sub-delegated, sub-sub-delegated and so on.2 Besides delegation, sub-delegation is also used on an elaborate scale as an administrative technique in modern times.3 What happens is that the statute confers legislative power on an agency and then that agency further delegates the rule-making power either to itself, or its officers, or another person or agency, This is sub-delegation. 'Sub-delegation' thus implies a further delegation of the same power which was

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originally delegated by the Legislature. There are times when the process of sub-delegation from one level to another goes on four or five degree removed from the original grantee of power. The process of sub-delegation may be illustrated by referring to the practices which have emerged under the Essential Commodities Act, 1955.4 The Act in S. 3 confers power to make rules on the Central Government for the control of the production, supply and distribution, trade and commerce in certain specified essential commodities. This is the first stage of delegation. Under S. 5 of the Act, the Central Government is empowered to delegate its powers under S. 3 to its own officers, the State Governments and their officers. This provision is frequently made use of and delegation under it may be characterised as the second stage. The third stage is reached when the power is further sub-delegated by the State Governments or the official concerned. The working of the process can be seen in the context of the Cotton Control Order, 1955. The Order is made by the Central Government under Section 3 of the Act. Under the Order, the functions and powers are conferred on the Textile Commissioner. This is the second stage in the process of delegation. Then by Cl. 10, the Textile Commissioner is authorised, with the previous sanction of the Central Government, by general or special written order, to authorise any officer to exercise on his behalf all or any of his functions and powers under the Order, and this constitutes the third stage. Sub-delegation at several stages removed from the source dilutes accountability of the administrative authority and weakens the safeguards granted by the Act. It becomes difficult for the people to know whether the officer is acting within his prescribed sphere of authority. It also transfers power from a higher to a hierachically lower authority. It is, therefore, necessary to limit in some way the degrees to which sub-delegation may proceed. An important point to note is that the governing principle is that the legislative powers must be exercised by the delegate himself and by none else; a delegate cannot further delegate his powers unless the parent law permits him to do so. The doctrine applied here is delegatus non potest delegare, i.e. a delegate cannot further delegate. Thus, if a law confers power on the Central Government to make rules, it cannot further delegate that power to any other officer unless the parent law itself gives authority to the government to that effect.5 Sub-delegation of power of delegated legislation is justified only where the parent statute expressly or impliedly authorises the delegate himself to further sub-delegate that power to anyone else. In the absence of an express provision, whether a statute authorises sub-delegation or not is a question for judicial interpretation.6 In an elaborate decision in A.S. Rao & Co. v. Agricultural Market Committee ,7. the Andhra Pradesh High Court has delved into the question of sub-delegation of legislative power. Under S. 7(1) of the A.P. Markets Act, 1966, no person could within a notified area use any place for the purchase, sale, etc. of any notified agricultural produce except under a license granted to him by the market committee. S. 7(3) provided that the government could prescribe license fee by making rules. Under Rule 48 made under the Act, the government authorised the market committee to fix the license fee, but not exceeding Rs.100. The validity of Rule 48 was challenged on the ground that the government ought to have fixed the license fee itself through rules and it could not sub-delegate that power to the market committee. The argument was based partly on the phraseology of S. 7(3) and partly on the maxim of delegatus non potest delegare. The Court rejected the argument saying that the maxim in question was not a rule of law but only a rule of construction. Even when a statute does not contain any express provision authorising delegation of legislative power, such a power can be spelt out by necessary implication from the provisions of the statute. In the instant case, the Court spelt out such a power from the statutory provisions involved. Usually, the courts interpret sub-delegation rather broadly. The case in point is K. Ramanathan v. State of Tamil Nadu .8 Here, the Central Government sub-delegated its power to the State Government under S.3(2)(d) of the Essential Commodities Act. The Supreme Court interpreted the sub-delegation broadly saying: "... although Cl. (d) of sub-s. (2) of S. 3 of the Act deals only with a specific power, the general power to issue the impugned order flows from the provisions of sub-s. (1) of S. 3 which stands delegated to the State Government..." When there is valid sub-delegation, the sub-delegate exercises the power in his own name. S. Section 37 of the Electricity Act, 1910, empowers the Central Electricity Board (CEB) to make rules for regulating generation, transmission, supply and use of electrical energy. Accordingly, the CEB framed the Indian Electricity Rules, 1956, of which Rule 45(1) empowers the State Government to regulate the grant of licenses, certificates and permits. The Orissa State Government framed regulations inter alia constituting the

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Electrical Licensing Board (ELB) and holding of examinations for supervisors. Pursuant to Rule 45(1), the regulations were published in the State Gazette. The vires of the regulations were challenged on the ground that the power conferred on the CEB under the Act could not be sub-delegated further by it to the State Government which, in its own turn, had sub-delegated the same to the ELB. But the High Court ruled that the exercise of the power by the ELB was not hit by the maxim of delegatus non potest delegate.9 Regulations 12(2) and 13(1) of the Employees' State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959conferred on the Director General of the Employees' State Insurance Corporation to specify, by a general or special order, an authority which could act as a disciplinary authority for the employees and also institute disciplinary proceedings against them. The Supreme Court held that this power of the Director General related to the powers conferred on him under the Regulations made under the provisions specified in Section 97(2)(xxi) or Section 17(2) of the Employees' State Insurance Act, 1948 and not to the powers and functions delegated to him by the corporation on its standing Committee under Section 94-A of the said 1948 Act. Hence, such statutory conferment of power does not suffer from the vice of sub-delegation.10Section 94-A of Employees' State Insurance Act 34 of 1948 has empowered the Employees' State Insurance Corporation to delegate the power to any of its officers and its Regional Director, being one of them, was competent to exercise power on behalf of the Corporation and the same does not suffer from the vice of further delegation.11 Rule 16(2) of the Employees' State Insurance (Central) Rules, 1950 empowers the Director General of the Employees' State Insurance Corporation to delegate any of his powers or duties under the Rules or the Regulations or under any resolution of the Corporation or the Standing Committee, as the case may be, to any person subordinate to him after obtaining approval of the Standing Committee. This power of delegation under Rule 16(2) can be divided into two parts: one is relating to delegation of powers or duties under the Rules and the Regulations and the other is relating to the powers and duties under any resolution of the corporation or the Standing Committee. The Supreme Court held that the former, being independent statutory powers, is not violative of the principle of sub-delegation but the position as to the latter is different as it empowers the Director General to further delegate the said powers or duties which amounts to sub-delegation of powers which is impermissible in law.12 (a) Unguided Legislative Power ought not to be sub-delegated Sub-delegation raises several problems. The first is whether it is necessary for the delegate to lay down lines of guidance for the sub-delegate to follow, or can there be a plain and simple sub-delegation without laying down any policy-guidance for the delegate to observe ? The matter has arisen before the Indian courts on a few occasions. A broad proposition in this connection may be stated thus: the sub-delegate ought not to be given uncanalised and unguided legislative power. However, the judicial attitude regarding the application of this principle to concrete situations remains somewhat equivocal. In Rao,13. mentioned above, the Court also emphasized that in sub-delegation also, like delegation, sufficient guidance must be given to the sub-delegate concerned. The Court ruled that an important feature of the market committee was that it was a body manned by the representatives of traders, growers and government nominees. The fixation of the maximum rate for the license fee was itself guidance for the purpose. The nature of the body, e.g. that it was a representative body, was also a factor in deciding whether there was proper guidance or not. Thus, the rule fixing the maximum license fee and then leaving it to the committee to fix the license fee in specific cases through its bye-laws was held to be valid. Under Section 3 of the Essential Supplies Act, 1946, the Government of India promulgated the Iron and Steel Order, 1941. Cl. 11-B of the Order authorised the Iron and Steel Controller to fix the maximum prices at which any iron and steel might be sold by a producer, stockholder or any other person, and different prices could be fixed for iron and steel obtained from different sources and could include allowances for contribution to and payment from an equalisation fund. One High Court declared Cl. 11-B invalid on the ground that it conferred a "naked and arbitrary" power on the Controller to control prices,14 but another High Court held it valid.15 The Supreme Court, however, held the clause valid16 on the ground that under S. 3 of the Act,17 the Central Government could have itself prescribed a price structure for iron and steel. Instead of doing so itself, the Government authorised the Controller to do so. The control order, taken as a whole, gave him the necessary guidance to exercise his power; it constituted an integrated scheme to enable the Controller to effectuate the policy of Act; and the authority conferred on the Controller was not "uncanalised or unbridled or unguided." A close reading of the

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case leaves the impression that since the Order was made with a view to confer power on the Controller to effectuate the policies laid down in the parent Act, the Court did not think it necessary that the Central Government should lay down any further guidelines for the Controller to follow. The parent Act governed the discretion not only of the Government but of the Controller as well. The Supreme Court adopted a similar approach in Laxmi Khandsari v. State of Uttar Pradesh .18 An order was made under the power delegated by Cl. 8 of the Sugarcane Order passed under S. Section 3 of the Essential Commodities Act, 1955. Cl. 8 of the Sugarcane Order conferred power on the Central Government to make orders, issue directions to various persons' connected with the production of Khandsari sugar or crushers of sugarcane. Powers under the Order were delegated to the Cane Commissioner who made the impugned order. Cl. 8 was challenged as invalid on the ground that it gave no guidance to the delegate. Rejecting the argument, the Court observed that the Sugarcane Control Order was made under S. 3 of the Act, and it contains sufficient guidelines, checks and balances to prevent any misuse or abuse of the power conferred on the authorities under Cl. 8. Also, the power cannot be deemed to be arbitrary or unguided because the impugned notification derives its source from S. 3 which clearly lays down sufficient guidelines. The notifications under the Control Order have to be read in the light of the main Act of 1955.19 At times, the Supreme Court seeks to ward off the challenge to the sub-delegated legislation on the ground of lack of guidelines to the sub-delegate by emphasizing upon the high statuts of the delegate. In Laxmi Khandsari, mentioned above, power sub-delegated to the Central Government was held valid on the ground inter alia that the Central Government being a very high authority, it must be presumed to act in a just and reasonable manner.20 The Lok Sabha Committee on Subordinate Legislation has emphasized21 that sub-delegation should not be made in very wide language, or that it should not be made whereon the parent statutes is silent on the point. S. 5(2) of the Coal Mines (Conservation and Safety) Act, 1952, authorised the Central Government to delegate any of its powers to the Coal Mines Board by a special or general order. By making a rule, the Government left the power of laying down 'principles' for acquisition or disposal of lands and surface rights to the Coal Board. The Committee raised the objection that the 'principles' should be laid down by the Government itself and not by a subordinate authority. As a consequence, the Government amended the rule. The Central Silk Board Rules, 1955, sub-delegated rule-making power to the Silk Board when the parent Act specifically authorised the Central Government to make the rules. The Committee took objection to the sub-delegation and the Government agreed to amend the rules in question. Again, Rule 13 of the Carbide Calcium Rules, 1937, made under the Petroleum Act, 1934, delegated rule-making power to subordinate authorities though such delegation was not authorised by the parent Act. The Committee took objection thereto and the government agreed to delete the said rule. S. 3 of the All-India Services Act, 1951, empowers the Central Government to make service rules. By the rules made by the government, it assumed further power to regulate residuary matters, not covered by the rules by issuing regulations. The Committee objected to this provision. The Committee has also emphasized that there should be some safeguards imposed before a delegate is allowed to sub-delegate its authority to another functionary. It has objected to wide language used in statutes to permit sub-delegation.22 (b) Sub-delegate must act within the Power Delegated There is a well established principle that a sub-delegate cannot act beyond the scope of the power delegated to him.23 This is known as the principle of ultra vires.24 The Supreme Court has recently stated the principle as follows: "A delegate is not entitled to exercise powers in excess or in contravention of the delegated powers. If any order is issued or framed in excess of the powers delegated to the authorities, such order would be illegal and void."25 In order to protect the validity of sub-delegated legislation, the courts often adopt the strategy of liberally interpreting the scope of delegation of power.26 Reference has already been made to S s. 3 and 5 of the Essential Commodities Act, 1955. Usually, while delegating rule-making power on a State Government under S. Section 5 of the Essential Commodities Act,

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the Central Government imposes the condition that the State Government can make rules only with its prior concurrence. In such a case, the rules made by a State Government without the concurrence of the Central Government are invalid.27 This is tantamount to the State Government exercising power in contravention, or, in excess, of the power sub-delegated to it. The Court has also ruled that the Central Government's order of concurrence must be in writing though need not be authenticated under Art. 77(2).28 The Rajasthan High Court considered an interesting question in Foremost Dairies v. State 29. The Central Government sub-delegated its power under S. 3(2)(g), Essential Commodities Act, to the State Government subject to the usual condition that the State Government would take 'prior approval' of the Central Government before making any rules. The State Government promulgated the Milk (Export Control) Order, 1948 banning export of milk outside the State without seeking the Centre's prior consent but obtained its ex post facto consent. The question was whether the Order was valid and the Court ruled that the Centre's consent being merely of a 'formal nature', the ex post facto consent could "fulfil the requirement of the prior concurrence of the Central Government". The ruling seems to be questionable for several weighty reasons. It was wrong of the Court to suggest that the 'prior consent' of the Centre was merely a formality. It was not so because before giving its consent the Centre must weigh carefully the interests of the exporting State as well as of the importing State and the economic dimension of the proposed order. Freedom of trade and commerce is a value inherent in the Constitution and, therefore, restrictions on it could not be regarded as of no consequence. In fact, in the letter giving its ex post facto consent to the order in question, the Central Government emphasized that its prior consent ought to have been taken. Further, from the Administrative Law angle, a sub-delegate cannot exceed the power given to him; his power is subject to the limitation imposed on him by the delegator. Non-observance by him of this limitation will make his order ultra vires and void ab initio. In the instant case, the order made without the Centre's prior consent was void ab initio. Therefore, it could not be validated retrospectively by the ex post facto consent. In any case, there could be no valid order before the ex post facto consent was given by the Central Government. It needs to be emphasized that there is a difference between 'prior consent', 'consent' simpliciter. If the latter term is. used in the order of sub-delegation, then it may be argued that it includes ' ex post facto consent', but not the former expression.30 2. PUBLICATION There arises the question of publication of sub-delegated legislation. It would appear that on the basis of the general principles laid down in Harla,31 sub-delegated legislation should also receive some publicity so that those affected by it may become acquainted with, and acquire some knowledge of, the rules which bind them. At times, the parent statute may contain a stipulation that all orders made under the Act should be published in the official gazette, and the question may then arise whether this stipulation applies to the rules made immediately under the Act, or even to the orders and sub-rules made under the rules, i.e. to the sub-delegated legislation as well. The point may now be regarded to have been settled by the Supreme Court in Narendra Kumar v. Union of India .32 Under S. 3(5) of the Essential Commodities Act, 1955, all orders of a general nature made under S. 3(1) are to be notified in the official gazette. The Non-Ferrous Metals Control Order, issued under the Act, prohibited through Cl. 4 acquisition of copper without a permit issued by the Controller in accordance with the principles "specified" by the Central Government from time to time. The principles for the issue of permits, which may be regarded as sub-delegated legislation, were specified by the Central Government in a communication to the Controller but had not been notified in the gazette. The Supreme Court held that the principles were not legally effective as they were not validly specified due to their non-publication in the gazette as envisaged in S. 3(5) of the Act. The Court insisted that the principles should have been notified in the gazette. Any changes made therein should also be notified in the gazette. These principles could not be effective unless specified by the Central Government through an order notified in accordance with S. 3(5) of the Act and without these principles having been specified in a legal manner, Cl. 4 of the Order could not be activated and no permits could be issued. The question of publication of sub-delegated legislation also figured in State of Maharashtra v. George .33 The Act in question stipulated publication of the rules made under the Act in the official gazette but did not say anything about the publication of sub-delegated legislation issued by an authority under the rules. A notification made by the Reserve Bank under the rules was published in the official gazette. The Supreme

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Court held that the publication of the notification in the gazette, the usual and recognisable way of publication in India, was adequate for its validity. The point to note is that even though the parent Act may not specifically require publication of the sub-delegated legislation, nevertheless, it would be imperative to publish it for its effectiveness and validity. In this connection, the following observation of SCOTT, L.J. Blackpool Corp. v. locker ,34 may be taken note of: "The modern extent of sub-delegated legislation is almost boundless: and it seems to me vital to the whole English theory of the liberty of the subject, that the affected person should be able at any time to ascertain what legislation affecting his rights has been passed under sub-delegated powers".

Criticising the non-publication of certain circulars, having been regarded as sub-delegated legislation, SCOTT, L.J., remarked in Jackson Stansfield & Sons v. Butterworth .35 "At the date material to the present proceedings,... there were no means at all open to the public affected by which a private owner whether an individual or a company, even with the assistance of his lawyer, could, as of right, ascertain what the detailed provisions were which in practice governed and limited his right or effective power to get a licence... The truth is that, as emphasized in the Report of the Committee on Ministers' Powers, while in our modern constitutional practice delegated legislation is both necessary, convenient and desirable. . safeguards are essential, especially that its content should always be within public knowledge. In my view, compulsory publicity is only preventive of many of those evils which most people have in mind when they speak of "bureaucracy" with an accent of censure. And whereas, in my opinion, is, in certain respects, the case as to parts of the official literature now before the court-administration is mixed up with sub-delegated legislation and none of the mixture is made public, it is really unfair and, indeed, unjust to the public."

The Lok Sabha Committee on Subordinate Legislation has also been seized of the problem. Rules made under a statute often confer further powers on administrative officers to issue directives, non-compliance of which by persons is penal, but no procedure is laid down in the rules for publication of such directives. The Committee has, therefore, suggested that the rules should specifically lay down a procedure for bringing such directives to the notice of the persons concerned.36 The Committee has emphasised that all statutory orders, regulations or principles issued under the rules should be published in the same manner as the rules under the parent Act.37 Similarly, when there is a requirement to "pre-publish", the same should be followed as in the case of delegated legislation.38 At times a provision authorising the making of sub-delegated legislation may not prescribe any specific mode of its publication but may merely say that the authority concerned shall publish the same "in such manner as may, in the opinion of such authority be best adopted for informing persons whom the order concerns..." Explaining the purport of this provision, a High Court has stated that publication is a condition precedent for the enforceability of sub-delegated legislation. The provision in question signifies--(i) that the authority concerned has to bring its mind to bear on the question of the best means of publication and prescribe a mode of publication, and (ii) the sub-delegated legislation must have been published accordingly. Mere making of sub-delegated legislation is not enough, its publication is essential. The mode of its publication is to be prescribed by the concerned authority and its publication in any other mode is not sufficient.39 It may not be out of place to mention here that in England there exists no obligation, statutory or common law, on the Administration to publish sub-delegated legislation as the Statutory Instruments Act, 1946 stipulates printing of delegated, and not of sub-delegated, legislation. This is a big lacuna in England.40 In India, however, the obligation to publish sub-delegated legislation has been established by the courts as mentioned above. (a) Laying Another problem in the area of sub-delegated legislation concerns its laying before the Houses of Parliament. The parent statute usually says that the orders made under it shall be laid before the Houses of Parliament. Does such a provision cover the rules made immediately under the Act, or also the sub-rules made under the rules? If it is held that the statutory provision requires the laying of only the rules, then the sub-rules would not be required to be laid and these may thus escape parliamentary scrutiny or control. If the

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view is taken that the statutory provision regarding laying covers both the rules and the sub-rules, then parliamentary scrutiny of all delegated and sub-delegated legislation is provided for, but it may cause inconvenience and difficulty to the Administration in view of the large bulk of sub-delegated legislation. The question has arisen specifically in relation to the Essential Commodities Act, 1955. Under S. 3(6) of the Act, every order made under S. 3(1) by the Central Government or by any officer or authority thereof has to be laid before both Houses of Parliament. Under S. 3(1), the Central Government issued the Cotton Control Order, 1955 and, under this order, the Textile Commissioner made a sub-order. The Government took the view that the sub-order need not be laid before Parliament under S. 3(6) as it had been issued under the control order and not under the Act. The Lok Sabha Committee on Subordinate Legislation, on the other hand, took the view that, as the ultimate authority of the sub-order was to be traced to the Act, it should have been laid. The Committee took a similar view in respect of a sub-order issued under the Fertiliser (Control) Order, 1957 made under S. 3(1) of the same Act. The Central Government, however, pointed out that the acceptance of the Committee's view would create a number of practical and administrative difficulties, e.g., the number of sub-orders ran into thousands; most of these orders were of ad hoc character; the rules of procedure of the Houses required that every document and paper laid on the table of each House should be duly authenticated by the member presenting it and it would be a stupendous task to authenticate thousands of sub-orders, many of them being unimportant and of a temporary nature. The Committee fell in line with the Government's view and dropped its suggestion that the sub-orders be laid before the House.41 Legally speaking, the view of the Committee was correct and its logic was impeccable because the ultimate authority to issue the sub-orders is traceable to the statute itself and, therefore, the statutory provision requiring laying of orders made under the Act should cover even the sub-orders. But, ultimately, practical considerations of administrative convenience prevailed over theoretical considerations. The Committee, however, subsequently stated the necessity to "lay" sub-delegated legislation made under the Coal Mines Conservation and Safety Rules, 1954,42 and statutory orders under the Defence of India Rules, 1971.43 As stated above, a direction of the Speaker requires that the Committee on Subordinate Legislation may examine all legislative orders under the Constitution or a statute whether laid or not. Further, the Committee has also insisted that all regulations framed by the autonomous bodies formed under the Central statues be laid. In view of these factors it now seems necessary to lay sub-delegated legislation before the Legislative. As stated earlier, rule-making power under S. 3(1) of the Essential Commodities Act may be delegated by the Central Government on the State Governments.44 The Supreme Court has ruled that rules made by the State Government in exercise of the delegated power by the Centre are not required to be placed before Parliament under S. 3(6).45 There is a valid reason underlying this proposition. The order in question was made by the State Government which is not responsible to Parliament. However, it could be argued in this situation, that no order is made by a State Government without the consent of the Central Government46, and, therefore, to some extent, the Central Government is responsible for State orders made under the Essential Commodities Act. Therefore, on this basis, it could be argued that S. 3(6) of the Act ought to be held applicable. But, as stated above, sub-delegated legislation made under the Essential Commodities Act, is not laid before the Houses of Parliament. It would seem from this that parliamentary supervision over sub-delegated legislation is, on the whole, weaker than on delegated legislation. (b) Consultation As regards consultation, the position in the area of sub-delegated legislation is the same as in delegated legislation, viz., the authority making sub-delegated legislation is not obligated to consult the affected interests unless a legal provision requires it to do so. Such a provision can be found either in the parent Act or in the delegated legislation under which the sub-delegated legislation arises. In reality, some of the cases cited in the last Chapter under 'consultation', may be ascribed to sub-delegated legislation. For example, in Laxmi Khandsari,47 the Sugar Controller made the impugned order under the Sugar Order issued under the Essential Commodities Act; in Cynamide,48 the order to fix drug prices was issued by the Central Government under the Drug Control Order, 1979 which again was issued under the Essential Commodities

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Act. The requirements of 'inquiry' and 'review' were laid not by the Act but by the Drug Order. As noted above, there is a lacuna in the control mechanism over sub-delegated legislation insofar as parliamentary supervision over it is rather weak. This deficiency can be made good, to some extent, by promoting more consultation between the interested groups and the Administration. This aspect has been emphasized upon by the High Court in New India Industrial Corp. v. Union of India ,49 where the Court has said that the problem is more acute in the area of sub-delegated legislation. Under the Essential Commodities Act, the Central Government has delegated power to the Delhi Administration, and the Administration has delegated the same to the deputy commissioner and assistant commissioner of food and supplies and civil supplies officers. Sub-delegated legislation is not required to be laid before the legislature like other statutory rules and, thus, no scrutiny of the sub-delegated legislation is possible at any stage, and so more consultation should be promoted in this area. It needs to be underlined that there is need for more, and not less, effective control mechanism over sub-delegated legislation as compared to delegated legislation because its bulk is immense and it involves transfer of legislative power from a higher to a lower authority in most cases.50 Like delegated legislation, consultation in the area of sub-delegated legislation can also be claimed on the ground of legitimate expectation.

1 Re Chemicals Regulations, (1943) SCR 1, as cited in WADE & FORSYTH: Administrative Law, 9th Edn., 2005, p. 886. 2 WADE & FORSYTH: Administrative Law, 9th Edn., 2005, pp. 886-87. 3 This Chapter deals specifically with sub-delegation of legislative power. Sub-delegation of other powers is considered in a later Chapter: see, Chapter XXI . 4 See for details, M.P. JAIN, Administrative Process under the Essential Commodities Act, 21-22, 129-30 (I.L.I. 1964). For extracts from this study, see, JAIN, Cases, Chapter I . 5 State of Punjab v. Amir Chand, AIR. 1953 Punj 1; Pritam Bus Ltd. v. Punjab, AIR 1957 Punj 145; Forum, Prevention of Environment & Sound Pollution v. U.O.I., JT 2005 (9) SC 319 [LNIND 2005 SC 870] [LNIND 2005 SC 870] [LNIND 2005 SC 870]: 2005 (9) Scale 69. 6 See, U.P. State Electricity Board v. Abdul Shakoor, AIR 1981 SC 1708; See also Pramod K. Pankaj v. State of Bihar, (2004) 3 SCC 723 [LNIND 2003 SC 1010] [LNIND 2003 SC 1010] [LNIND 2003 SC 1010], 730 (para 16): AIR 2004 SC 746 [LNIND 2003 SC 1010] [LNIND 2003 SC 1010] [LNIND 2003 SC 1010]: (1980) 3 SCC 278 infra, Chapter XXI. 7 AIR 1977 AP 325. 8 AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116. 9 S.N. Sahu v. State of Orissa, AIR 1983 Ori 131 [LNIND 1983 ORI 46] [LNIND 1983 ORI 46] [LNIND 1983 ORI 46]. 10 Director General, E.S.I. v. T. Abdul Razak, (1996) 4 SCC 708 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], 717-718 (paras 15 and 16): AIR 1996 SC 2292 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], relying on Sahni Silk Mills (P.) Ltd. v. ESI Corporation, (1994) 5 SCC 346. 11 Sovrin Knit Works v. Employees' State Insurance Corporation, (1996) 11 SCC 758, 759 (para 2): AIR 1997 SC 1771 [LNIND 1996 SC 2012] [LNIND 1996 SC 2012] [LNIND 1996 SC 2012]. 12 Director General, ESI v. T. Abdul Razak, (1996) 4 SCC 708 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], 718 (para 17): AIR 1996 SC 2292 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], relying on Sahni Silk Mills (P.) Ltd. v. ESI Corporation, (1994) 5 SCC 346. 13 A.S.Rao & Co. v. Agricultural Market Committee, AIR 1977 AP 325. 14 State of M.P. v. Haidarali, AIR 1957 MP 179 [LNIND 1957 MP 9] [LNIND 1957 MP 9] [LNIND 1957 MP 9]. 15 Bhagwati v. Uttar Pradesh., AIR 1959 All 332 [LNIND 1958 ALL 189] [LNIND 1958 ALL 189] [LNIND 1958 ALL 189]. 16 Union of India v. Bhanamal Gulzarimal, AIR 1960 SC 475 [LNIND 1959 SC 228] [LNIND 1959 SC 228] [LNIND 1959 SC 228]: 1960 Crlj 664; JAIN, Cases, Chapter VI, 349. The ruling was reiterated-in Bhagavati Saran v. State of UP., AIR 1961 SC 928 [LNIND 1961 SC 24] [LNIND 1961 SC 24] [LNIND 1961 SC 24]: 1961 (2) Crlj 24.

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17 This provision was held to be valid in Harishankar Bagla v. State of M.P., AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: (1955) 1 SCR 380: 1954 Crlj 1322. 18 AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140], 888: (1981) 2 SCC 600 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]; JAIN, Cases, Chapter VI, 354. 19 The following cases were cited in support of the proposition: Chinta Lingam v. Govt. of India, AIR 1971 SC 474 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464]: (1970) 3 SCC 768; V.C. Shukla v. Delhi Administration, AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC 179]: 1980 Crlj 965. 20 Hans Raj Bhartiys & Co. v. Union of India, AIR 1991 Del 83, JAIN, Cases, Chapter VI, 353. 21 For a detailed discussion of this topic, see M.P. JAIN, Parliamentary Control of Delegated Legislation in India, 1964 Public Law at 160 22 M.P. JAIN, 1964 Public Law, at 160. 23 Blackpool Corporation v. Locker, (1948) 1 KB 349; Allingham v. Minister of Agriculture and Fisheries, (1948) 1 All ER 780; Radhakishan v. State, AIR 1952 Nag 387. 24 Supra, Chapter V. 25 Dist.Collector, Chittoor v. Chittoor Dist. Groundnut Traders' Assn., (1989) 2 SCC 58 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690]: AIR 1989 SC 989 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690]; JAIN, Cases, Chapter VI, 344. 26 For an example of this judicial strategy, see, K Ramanathan v. State of Tamil Nadu, AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116; JAIN, Cases, 339. 27 Shib Shankar Dokania Oil, Rice and Flour Mills v. State, AIR 1981 Pat 355. Also, Dist. Collector; Chittoor, (1989) 2 SCC 58 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690] at p. 60: AIR 1989 SC 989 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690]; D.U.E. Sangh, Jabalpur v. Madhya Pradesh, AIR 1986 MP 9 [LNIND 1985 MP 27] [LNIND 1985 MP 27] [LNIND 1985 MP 27]. 28 On Authentication, see, infra, Chapter XXI . 29 AIR 1986 Raj 116. 30 See, L.I.C. v. Escorts Ltd., AIR 1986 SC 1370 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], 1375, 1403: (1986) 1 SCC 264 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362]; JAIN, Cases, Chapter XIV. 31 Harla v. State of Rajasthan, AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]: 1952 SCR 43: 1952 Crlj 54. 32 AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375. 33 AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: 1965 (1) Crlj 641. 34 [1948] 1 KB 349, 369. 35 [1948] 2 All ER 558. 36 Sixth Rep.(II L.S.), 2 (1959). 37 Tenth Rep.(V L.S.), 11 (1974); Fourteenth Rep. (V L.S.), 9 (1974). 38 Tenth Rep.(V L.S.), 11 (1974); Fourteenth Rep. (V L.S.), 9 (1974). 39 Babulal Rajoolal v. Emperor, AIR 1945 Nag 218, 224. 40 GRIFFITH and STREET Principles of Administative Law, at 58 (1973). 41 M.P. JAIN, 1964 Pub Law at 48-49. 42 Tenth Report (V L.S.), 11 (1974). 43 Seventeenth Report (V LS.), 19 (1976). Also see, Fourteenth Report (V LS.), 9 (1974). 44 Supra. 45 Sarkari Sasta Anaj Vikreta Sangh v. State of M.P., AIR 1981 SC 2030, 2034: (1981) 4 SCC 471. Earlier in Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: 1979 Crlj 927: (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277], supra, Chapter VI, note

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24, the Supreme Court had left the question open whether it was necessary under the Essential Commodities Act to lay sub-delegated legislation before Parliament under S. 3(6). 46 AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969 SC 12]: (1969) 1 SCC 399. 47 Laxmi Khandsari v. State of U.P., AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]: (1981) 2 SCC 600. Also, supra, Chapter VI, 168. 48 Union of India v. Cynamide India Ltd., AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720. 49 AIR 1980 Del 277 [LNIND 1980 DEL 155] [LNIND 1980 DEL 155] [LNIND 1980 DEL 155]. 50 Supra, Chapter VI, 179.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER VIII DIRECTIONS

CHAPTER VIII DIRECTIONS 1. DIRECTIONS GENERALLY In addition to the various forms of delegated legislation adverted to in the previous pages, a modern phenomenon in administrative process is the emergence of the institution of directions. Issuing directions has become an essential and normal administrative technique in modern times. This is a kind of informal or quasi-legislation made by the Administration.1 Directions are less formal than rules. Administrative authorities churn out directions for a variety of purposes2 and in a variety of ways, e.g., through letters, circulars, instructions, orders, memoranda, directives, bulletins, guidelines, manuals, pamphlets, public notices, press notes, clarifications, trade notices etc. At times, directions may even be published in the government gazette.3 A direction may be specific, being applicable to a specific person or matter or case; or, it may be general in nature laying down some general norm or principle or policy, practice or procedure to be followed in all similar cases. The theme of this Chapter is directions of a general nature issued by the Administration; discussion on specific directions, which are also known as directions of an administrative nature, is being postponed to a later stage.4 Prima facie,a direction of a general nature may in form resemble a rule, or some form of delegated legislation, as 'both are of general applicability, and both are issued by administrative authorities, and both may seek to regulate the relationship between the State and the citizen. But directions and delegated legislation do differ basically from each other in concept and essence. To underline the difference between the two, directions are at times characterised as 'administrative quasi-law' or 'administrative quasi-legislation'. One basic difference between the two is that while delegated legislation is issued only when the concerned authority has statutory power to do so, as is discussed in the previous pages,5 statutory power is not the sine qua non for issuing directions. Directions are usually issued under general administrative power of the government and not under its legislative power.6 The power to issue directions is now regarded as being inherent in the administrative power. But cases are not wanting where statutory power is also conferred on an authority to issue directions.7 Another difference is that while a rule can override a direction, a direction cannot override a rule. Since a direction cannot amend a rule, a direction, from this point of view, occupies a secondary place in relation to a rule.8 Another basic distinguishing feature between a direction and delegated legislation is that while the latter is binding on both the individual as well as the Administration, and is legally enforceable against each at the instance of either the Administration or the individual, a direction, generally speaking, may not always be regarded as enforceable.9

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On the whole, as the discussion in this Chapter shows, the presentday law concerning directions is extremely uncertain and complex. For an administrative lawyer, the picture existing in the area is very confusing. There are no definite answers to many crucial questions, e.g., how to distinguish between directions and rules? Under what circumstances do directions become enforceable? What we have today is merely a catena of judicial pronouncements depicting an ad hoc judicial approach from case to case from which any general propositions of law are very difficult to draw. The law regarding directions is in a flux and there is a lack of consistency in judicial pronouncements in the area. The fact however remains that because of some judicial pronouncements over time, the status of directions has been very much enhanced so much so that the differentiation between directions and rules has become very blurred, and, at times, it even reaches the vanishing point. In Karnataka SRTC v. KSRTC Staff & Workers' Federations,10 the Supreme Court held that in the exercise of powers conferred by Section 34of the Road Transport Corporation Act, 1950 on the State Govt. to issue directions to the Karnataka State Road Transport Corporation, the Govt. Could not direct the Corporation to commit breach of any binding settlement between the parties under Section 18(1)or to make the Corporation liable for criminal action in this connection under Section 29of Industrial Disputes Act, 1947. In State of T.N. v. L. Krishnan,11 the High Court was of the view that the Government notification GOMS are statutory notifications but the Supreme Court, disagreeing with this view held that they are only administrative instructions as guidelines when if misused could be withdrawn by the Govt. as when it had power to issue guidelines, it has plenary power to withdraw the same. In a case, on the basis of the material before the Collector, he had formed the opinion that the land in question was required for public purpose and the Govt., after protracted litigation and to avoid further litigation, had directed to acquire the land after obtaining permission of the Govt., if the value of the land was more than Rs. 20,000 per acre but that did not mean that the collector had abdicated his power under Section 4(1)of the Land Acquisition Act, 1894. The administrative instructions, no doubt, bind the subordinates but the violation thereof does not constitute an infirmity in the acquisition itself. The Govt. could take appropriate disciplinary action against the officials but it does not constitute infirmity in the valid exercise of power under Section 4(1)of the Act and the declaration under Section 6of the Act.12 (a) Need for directions It is a fact of life that directions are used by the Administration very pervasively in modern administrative process to serve a variety of purposes. Today Administration cannot do without taking recourse to the technique of directions. An index of the growing significance of the system of directions is to be seen in the volume of caselaw coming before the courts in this area. Directions appear in various guises. There has been an exponential growth in this type of administrative 'legislation'. Directions may confer benefits, or impose duties, on persons concerned. The justification for directions is to be found in the following factors: informality; convenience in issuing directions; possibility to use nonlegal and nontechnical language in formulating directions; flexibility; ability to change or modify directions more easily and expeditiously than rules. Directions are also used to explain and interpret the law in ordinary nontechnical language.13 The technique of issuing directions is an integral part of modern administrative process. The directions are used mostly by the Administration to inform the people of the policy decisions which the government takes from time to time in various areas which may affect the concerned persons one way or the other. As we shall see later, it is not always necessary for the government to make a law to implement each and every decision taken by the government. To the extent, a government decision does not affect the vested rights of any person, it can be effectuated without enacting a law by using the technique of directions for the purpose.14 Another use made of directions is to announce concessions that will be made in the application of a statute in individual cases. In this way, without actually changing the wordings of a law, its effect in practice may be changed through the medium of directions. The technique of directions is also used to lay down procedures for various purposes to be followed by the Administration or the public. Directions are also used to fill in the gaps in the area of wide discretionary powers conferred on the Administration. The government may

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announce in advance as to how it seeks to exercise its powers under a particular statutory provision. Thus, directions may be used as a mechanism for structuring wide discretion conferred on officials by the legislature.15 Directions are a part and parcel of the internal administrative procedure of a government department. When a number of officials are engaged in executing a law and taking decisions thereunder, directions may serve the purpose of laying down some criteria to be followed by these officials in discharging their functions so that there may be some uniformity of approach in disposing of similar cases by the various officials. The government may lay down through directions some norms, general principles, practices and policies within the area of operation of a statute for the guidance of officials and convenience of the public. Reference may be made here to S. Section 5B of the Cinematograph Act, 1952. The Act provides for the creation of a Board of Film Censors for sanctioning films for public exhibition. This provision confers a very broad discretion on the Board. Then, under S. 5B(2)the Central Government may issue "such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition." This leads to the flexibility of the system as the directions can be changed by the government from time to time without much ado. In certain situations, Administration may prefer to use directions rather than rules: a principle may not lend itself to, or may not be ripe for, precise articulation;16 the agency may prefer to retain some freedom to modify its views without undergoing much formality; a department may like to confer a benefit on the public but may not like to make it a legal right, or the benefit conferred many be over and above what the statute provides for and this may not be done through a rule for such a rule may be ultra vires the Act being inconsistent with it.17 A department may be faced with a new problem for which no past experience is available to it and may for the time being have to experiment with the method of trial and error until some stable norms are evolved which may be capable of being laid down in the form of rules.18 Until a particular problem has been worked out for a sufficient period, norms and standards may have to be kept somewhat flexible and in such a situation, directions rather than the rules may be regarded as being more expedient from an administrative point of view. Further, directions may be used when the factors for operation of the Administration are fluid and subject to rapid changes.19 Directions provide the Administration with a certain degree of flexibility as it does not have to follow the formalities involved in rulemaking, e.g., publication in the gazette, laying before Parliament, etc. Therefore, the government may change a direction any time without much formality. Directions are less formal than rules. A direction can be amended by issuing another direction,20 but a rule can only be amended by a rule and not a direction.21 2. IDENTIFICATION OF DIRECTIONS The Administration is continuously engaged in the process of legislation in the sense of laying down general norms for public or administrative behaviour. Administrative legislation may be classified as either delegated legislation22 or directions.23 As is discussed below, this differentiation creates some significant problems for an administrative lawyer. Therefore, it becomes very important to identify whether a piece of administrative legislation amounts to delegated legislation or direction. This may, at times, be a complicated exercise. In doing so, an administrative lawyer may be faced at the very threshold with a problem arising from terminological in exactitude. Expressions like code, rules, regulations which are appropriate for use in the area of delegated legislation, are also used haphazardly and indiscriminately in the area of directions as well. Therefore, the label which may be appended to a particular piece of administrative legislation is not always determinative of its true character. The presentday law regarding directions is in a very unsatisfactory condition as no stable principle appears to emerge from the caselaw to distinguish directions from rules. This is thus an area open to judicial legislation. One general proposition may be cited at this stage. What the government issues under the rulemaking power conferred on it by a statutory provision or some specific constitutional provision,24 will generally be characterised as a rule. On the other hand, directions are issued under the government's administrative, and not legislative, power. Arts. 73(1) and 162 confer administrative power on the Central and State governments respectively. For example, Art. 73(1)says that, subject to the provisions of the Constitution, the executive power of the Union extends to matters with respect to which Parliament has power to make laws.25 Similarly, under Art. 162, the executive power of the State extends to matters with respect to which the State Legislature has power to make laws. The administrative power of a government is thus coextensive with its

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legislative power. The Centre can make laws with respect to matters enumerated in Lists I and III, and the States can make laws with respect to matters enumerated in Lists II and III of the VII Schedule to the Constitution.26 These constitutional provisions confer administrative, but no legislative, power on the Central or the State Government, as the case may be.27 Accordingly, whatever the government does under any of these constitutional provisions cannot be regarded as a rule. The extent and scope of the executive power of the modern government is not capable of any precise definition.28 The government can carry on general administration, and so long as it does not infringe a constitutional or legal provision, the width and amplitude of administrative power cannot be circumscribed. Accordingly, the scope for issue of directions by the Administration becomes extremely broad. As a general proposition it may be stated that the government can issue directions on any matter falling within the range of its administrative power so long as the field is not occupied by any statutory provision or a rule. Thus, in Nivedita,29 upholding a State directive on admission of Scheduled Casts and Scheduled Tribes candidates to medical Colleges, the Supreme Court said that as there was no legislation covering the field of selection of candidates for admission to medical colleges, and as the matter fell within its administrative power, the State would be competent to pass executive orders in this regard. In Balaji,30 Supreme Court rejected an argument that under Art. 15(4), reservation of seats in medical colleges for backward classes could be made only by legislation and not by an executive order. In Fernandez v. State of Mysore,31 the Supreme Court characterised the Mysore P.W.D. Code as containing only directions as the said code had been issued by the Government not under any statutory authority but under its general administrative power. In Sadhu Singh v. State of Punjab,32 paragraph 516-B of the Punjab Jail Manual laying down provisions for commutation of sentences has been held to constitute a direction and not a rule. The Manual is based on a resolution of the Government of India which in itself does not have any statutory force. Besides, several other socalled 'codes' and manuals have been held by the courts only amounting to directions and not rules, e.g., provisions of the Education Grantinaid Code of Maharashtra;33 Assessment and Collection Manual, 1917 of the Calcutta Corporation;34 the Orissa Forest Code;35 the Store Purchase Manual of the Kerala Government;36 the West Bengal Government Estates Manual.37 The Exchange Control Manual has been characterised as "a sort of a guidebook for authorised dealers, moneychangers etc." and it is "a compendium of collection, various statutory directions, administrative instructions, advisory opinions, comments, notes, explanations, suggestions etc." Accordingly, the Supreme Court has ruled that it cannot be held that "any and every provision contained in the Exchange Control Manual whether of significance or otherwise is liable to be proceeded against under S. 64of the FERA."38. Issuing certain norms under the designation of 'rules' is not determinative of their true character; these may still be identified by the courts as directions. There are a number of court cases in which provisions though called 'rules' have been held to be in effect only directions and not rules, e.g., the Madhya Pradesh Pre-Medical Examination Rules, 1972, regulating admission to medical colleges in the State;39 the Medical Colleges (Selection for Admission) Rules, 1978, in the State of Karnataka;40 Conduct and Discipline of the Employees of Aided Educational Institutions Rules.41 In State of U.P. v. Kishori Lal,42 the U.P. Excise Rules were characterised as only directions on the basis that they were never published in the gazette as was required by the relevant statute. It was published only in the Excise Manual. Though called a rule, it could not really be regarded as a rule having legal force in the absence of publication in the official gazette, and it could only be regarded as giving some sort of guidance to the concerned officials. under Art. 148(5), the President may, after consultation with the Comptroller and Auditor-General frame rules laying down conditions of service for the persons serving in the Indian Audit and Accounts Service. Accordingly, in Doraiswamy,43 a provision made by the CAG giving weightage to length of service in fixing seniority and contained in the manual of standing orders, was held to be only a direction and not a rule having statutory force. On the other hand, in Virendra Kurnar v. Union of India,44 the Supreme Court characterised an army instruction regarding release of commissioned officers as a rule having statutory force. In Kumari Regina v. St. A.H.E. School45,the socalled 'rules' laying down certain norms for recognition of schools were held to be merely administrative instructions for the following reasons: the rules under the relevant statute could be made for carrying out the purposes of the Act; that was the condition precedent, but the socalled 'rules' in question could be related to no purpose or provision of the concerned statute; the government did not claim to have made them under its statutory power; under the Act, prepublication of the rules was necessary but the socalled 'rules' in question had not been prepublished.46 The socalled 'rules', therefore, could not be related to the statutory authority as these were ultra vires the Act. The 'rules' were treated as having been issued under the general administrative power and so these were characterised as

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directions. The Punjab Government issued certain 'rules' for enforcing a uniform practice in the method of allowing extra supply of canal waters for gardens and orchards. The High Court held that the socalled 'rules' were directions and not rules in the real sense of the term as these were not framed under any statutory power and had not been published in the official gazette.47 Difficulties in identifying of directions are further enhanced at times by the fact that one and the same pronouncement or document issued by the government may be a mixture of rules as well as directions; partly it may be held as constituting directions and partly as delegated legislation. Thus, while Chapter XXIII of the U.P. Police Regulations dealing with disciplinary proceedings in the police force has been held to constitute rules,48 its Chapter XX empowering the police to interfere with the personal liberty of a person,49 and Chapter XI laying down the mode of investigation by the police into criminal charges, have been held to be merely directions,50 as these are based on no statutory foundation, and contain injunctions merely for the guidance of police officers in the discharge of their work. The confusion in the area becomes worse confounded when it is seen that while the provisions of the U.P. Police Regulations interfering with personal liberty were regarded as merely directions,51 in a later pronouncement,52 the Supreme Court held similar provisions in the Madhya Pradesh Police Regulations as rules. The Court explained away its earlier ruling by saying that that decision was based on a concession made by the counsel of the State. The Punjab Jail Manual contains both executive instructions as well as statutory rules, the latter being specifically marked with black line.53 The Foreign Exchange Manual incorporates various statutory and administrative instructions, advisory opinions, comments, notes, explanations, suggestions etc. issued from time to time.54 Directions are not always issued under general administrative power. At times, a statute may contain a provision authorising issue of directions. To take a few examples, under S. 119(1)of the Income Tax Act, the Central Board of Direct Taxes issues directions in the form of circulars.55 Under this provision, circulars have been issued, inter alia,for giving exemptions or concessions to taxpayers when not expressly provided for in the statute;56 for clarifying doubtful points of law by the Board's own interpretation so as to achieve uniformity in the application of the law by different tax authorities;57 for dealing with a new problem,58 or with an ad hoc problem which is not likely to recur again;59 and for providing for procedural matters.60 There are statutes which have provisions enabling the Administration to issue both rules as well as directions, e.g., the Indian Income tax Act. The Medical Council of India is a statutory body which has been created by the Indian Medical Council Act, 1956. It is an expert body constituted to control the minimum standards of medical education. The Council issued certain regulations laying down the eligibility for admission to the M.B.B.S. course in medical colleges. The Government of Madhya Pradesh issued a direction lowering the eligibility in respect of scheduled castes candidates. The question was whether the State Government's direction could prevail over the Council made regulations. Answering in the affirmative, the Supreme Court ruled in State of M.P. v. Km. Nivedita Jain61 that the regulations were only directions and were merely of an advisory nature and, consequently, the State Government could depart therefrom as regards admission of candidates in government medical colleges.62 Then again a question arose regarding the status of regulations issued by the Council laying down qualifications for appointment of academic staff in medical colleges. The Supreme Court characterised these regulations as only directions. The Court stated that the Council could only lay down broad guidelines for prescribing qualifications for appointment of academic staff in medical colleges and such a regulation could not override a rule made by the State Government under Art. 309.63 If rules are made under statutory power, and they cannot he given effect to because of some lacuna, they could still be treated as directions. Non-publication of rules denudes them of any legal force.64 In such an eventuality, such 'rules' can still be treated as directions, or as guiding norms. For example, certain rules were published in the Excise Manual but not in the official gazette. Although called 'rules', they could only be treated to be merely as administrative directions and not rules.65 The courts have propounded this view in order to control discretionary decisions; in the absence of any rules or directions, there may arise the danger of arbitrary decisions being taken by the concerned body. In Indian Airlines Corporation v. Sukhdev Rai,66 the Supreme Court ruled that the regulations made by a statutory body under statutory regulationmaking powers dealing with service matters did not have the force of law and thus were not binding. In this case, the regulations in question were service regulations which had

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been approved by the Central Government and were published in the official gazette as required by the statute establishing the body in question. Still the court held them not binding. The reason advanced for this view was that service or employment was basically a contract which is a matter of private law. This was an extremely debatable pronouncement as there appeared to be no valid reason to declare the regulations as not binding, implying that the regulations were mere directions. The Supreme Court however overruled this view in Sukhdev Singh v. Bhagatram.67 The Court took the view that "Rules, regulations, schemes, by laws, orders made under statutory powers are all comprised in delegated legislation". There is no substantial difference between 'rules' and 'regulations' inasmuch as both are made under powers conferred by the statute and therefore regulations are imperative and have the force of law. under Art. 324, the "superintendence, direction and control" of the conduct of elections to Legislatures in India is vested in the Election Commission. Under this power, the Commission has issued the Election Symbols (Reservation and Allotment) Order, 1966. In APHL Conference v. W.A. Sangama,68 the Supreme Court was not ready to commit whether this order is "a piece of legislative activity" or not. The Court characterised the order as "a compendium of directions in the shape of general provisions to meet various kinds of situations appertaining to elections with particular reference to symbols." The Court did however say that the Commission is empowered to issue directions in general in widest terms necessary to facilitate a free and fair election with promptitude. The Symbols Order is of a general nature and has been given legal effect. The only plausible explanation for the hesitancy of the Court to treat it as delegated legislation may be attributed to the wordings of Art. 324which does not specifically confer a rulemaking power on the Election Commission. The Supreme Court has specifically ruled in A. C. Jose v. Sivan Pillai69 that Art 324 confers only executive, but no legislative, power on the Election Commission. The Court has ruled that legislative power in respect of elections vest in Parliament and State Legislatures. The Commission can issue directions only when no statutory provision exists in that respect. If a valid statutory provision has been made, the Commission must act in conformity with, not in violation of, such a provision. However, where law is silent, the Commission has plenary power under Art. 324(1)to give any direction regarding conduct of elections. In Krishna Mohini v. Mohinder Nath Sofat70 the Supreme Court held that the Circular dated 9.8.1996 and the guidelines issued by the Election Commission of India are consistent with the statutory provisions and correctly bring out the position of law. An authority, statutory or nonstatutory, can also issue directions under its own administrative power.71 (a) Nature of Import Policy A statute may confer a general power to make orders. Such a power may authorise the making of orders of both administrative and legislative in character and, at times, the courts may be hard put to delineating the nature of an order. Further confusion is caused because the government often issues public notices or circulars, outside the statutory provision, under its general administrative power. The problems arising here may be best illustrated by reference to the Imports and Exports (Control) Act, 1947. S. 31(1)of the Act authorises the Central Government, by an order published in the official gazette, to make provisions for prohibiting, restricting or otherwise controlling import or export of any goods. The provision prima facie authorises the making of rules as well as issue of administrative orders. The Imports (Control) Order, 1955 issued under the Act has been held to be legislative in character, i.e. amounting to delegated legislation. The order prohibits import of goods without an import licence. Difficulties have arisen as regards many other public notices, schemes and orders issued from time to time concerning imports or exports, where the government has not indicated the source of authority under which these are being issued, but which are nevertheless published in the gazette. For example, the government periodically announces its imports control policy. This policy is regarded as having no statutory force. The Supreme Court has dilated upon the nature of the Import Policy in Union of India v. Anglo Afghan Agencies72 as follows: It cannot be assumed that merely because the Import Trade Policy is general in terms and deals with the grant of import licences for import of goods and related matters, it is statutory in character. The Policy was evolved to facilitate the mechanism of the Act and the orders issued thereunder. It is not the form of the order, the method of its publication or source of its authority, but its substance, which determines its true character. A large majority of the paragraphs of the scheme are in the form of instructions to

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departmental officers and advice to persons engaged in the export and import business with their foreign counterparts. It may be possible to pick out paragraphs which appear in isolation to be addressed generally and have direct impact upon the rights and liberties of the citizens, but a large number of paragraphs of the scheme refer to matters of procedure of departmental officers and heterogeneous materials. The Policy sets out forms of applications, application fee, designation of licensing officers, classification of importers etc. "There is no pattern of orders or logical sequence in the policy statement: it is a jumble of executive instructions and matters which impose several restrictions upon the rights of the citizens." But the Supreme Court also observed: "Granting that it is executive in character, this Court has held that the courts have the power in appropriate cases to compel performance of the obligations imposed by the scheme upon the departmental authorities." Thus, the policy has been held by the Supreme Court as administrative and not statutory in nature, i.e., only a direction. It can be changed, rescinded or altered by mere administrative instructions issued at any time by the government. The judicial view is that the import policy published from time to time is only a guidance to the concerned administrative officers and the principles contained therein have no statutory force whatsoever, and no person can, merely on the basis of the policy, claim an enforceable right to the grant of an import licence.73 This judicial view is based on the premise that imports require foreign exchange and so they need to be constantly controlled. In granting import licences for an item, the concerned authorities have to keep in view various flexible factors which may have an impact on imports of other more important items and overall economy of the country has to be the supreme consideration in the area.74 A significant result of the proposition that the Policy is administrative in nature is that the Central Government has a right to change, rescind and alter the Policy from time to time through merely administrative directions. Another very important result of this proposition is that the principles stated in the Policy cannot be held binding on the government, and, ordinarily, no person can claim a right to the grant of an import licence enforceable at law merely on the basis of the Policy statement. As the Supreme Court has asserted: "On the basis of an Import Trade Policy, an applicant has no absolute right, much less a fundamental right, to the grant of an import licence."75 But then there are also cases where the courts have enforced some of the provisions of the Import Policy in favour of the importers against the import control authorities. One such case is Oswal.76 The petitioners were a 'trading house' recognised under para 195(4) of the Import Policy, 1981-82. The petitioners acquired by transfer the Replenishment (REP) licence from a manufacturerexporter and sought enforcement thereon in their favour from the Deputy Chief Controller of Imports and Exports. He refused to make the necessary enforcement because of a circular issued by the Joint Chief Controller of Imports and Exports. Para 138 of the Import Policy provided for transfer of REP licences, under which the said licence was enforceable. But the J.C.C.'s circular added one more condition for enforcement which was not there in the Policy. The Supreme Court directed the concerned authorities to enforce the said REP licence. The Supreme Court ruled that the circular in question added a condition which was not to be found in the Import Policy as such. The JCCIE had claimed that the said circular did not modify or amend the relevant para in the Policy but was only clarificatory in nature. Basing itself on this assertion, the Court said: "In view of the respondents' contention that the circular dated 31-8-1981 is only clarificatory of paragraph 138(1) of the Import Policy, 1981-82, and does not amend or modify that paragraph it is unnecessary for us to go into the question whether the circular issued by the Joint Chief Controller of Imports and Exports can validly amend the Import Policy, 1981-82."

The Court ruled that the petitioners' request should have been complied with by the concerned authorities, as the circular was invalid and the rejection of the petitioner's request was unwarranted. In this way, the Court enforced a provision of the Import Policy in favour of the Importers. Apart from the Import Policy, the Central Government issues from time to time other notices concerning imports and exports, and the question arises as to the nature of these notices. The Central Government issued a public notice laying down the principles governing the issue of import licences. It was published in the official gazette. Nevertheless, in East India Commercial Co. v. Collector of Customs,77 the Supreme Court held it not to be statutory in nature for the following reasons: a perusal of the public notice showed that it was intended to give information to the public as regards the procedure to be followed in the matter of filing of applications by different categories of applicants;78 it not only did not on its face purport to be a statutory

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order issued under S. 3of the said Act, but also the internal evidence furnished by it clearly showed that it could not be issued under that section; statutory orders issued under S. 3did state that they were issued under S. 3, the public notice in question did not state so; notifications issued under S. 3were described as orders, but the present communication was described as "Public Notice" and not an order; the statutory orders regulated the rights of the parties, the public notice in question did not do any such thing but only gave information to the public regarding principles governing the issue of licences. The Court thus ruled that the public notice in question was a policy statement administratively made by the government for public information. In this case, the Court heavily relief on the form of the public notice to hold it to be nonstatutory in nature. It needs to be noted that S. 3of the Act in question requires publication of orders made under it in the official gazette; the public notice in question was published in the official gazette but still the Court held that it had been issued under the government's general administrative power and not under S. 3. The Court regarded the said notice as informational and procedural rather than regulatory.79 It was held that such a public notice could not amend the open general license which was issued under the Import Trade Control Order, a statutory Order issued under S. 3of the Act. OGL conferred a valuable right of importing goods from abroad. An unstated consideration which appears to have weighed with the court was that on the character of the public notice in question depended the enforceability of a condition in the import licence authorising the Administration to confiscate imported goods disposed of in breach of the condition. By holding the notice to be a direction, the appellants were saved from incurring the penalty of confiscation of the goods. In this series of cases, Anglo Afghan Agencies80 constitutes a significant pronouncement. The Supreme Court was called upon to decide the nature of an export scheme giving inducements to exporters and published in the gazette. The Central Government's contention was that the scheme had been issued under its executive power; that it was merely an instruction issued by the government to the Textile Commissioner and thus created no right in anyone to get an import licence nor it obligated the government to issue any such licence. On the other hand, the respondent argued that since the scheme was published in the gazette, contained general provisions relating to the grant of import licences and imposed restrictions upon the right of the people, it must be held to have been issued under S. 3of the Imports and Exports (Control) Act and was statutory in nature. The Court did not specifically decide this question, although its preference appears to have been in favour of holding the scheme as nonstatutory in nature, and it decided the controversy on that assumption.81 The Court stated that merely because the scheme was of a general nature, was published in the gazette, and was issued under S. 3of the Imports and Exports (Control) Act, 1947, it could not be assumed that it would be of statutory character. Both "legislative" and "executive" (or administrative) orders could be issued under the section, and the Court felt that the import trade control policy containing the scheme constituted "executive or administrative instructions" and was not legislative in character. It may be commented that it is true that under S. 3of the Act both "legislative" order or an "administrative" order (e.g., a licence issued by the government to an individual) could be issued but an order made under the section, whatever be its character, has to be treated as binding. If the scheme is treated to have been issued under the section, it has to be regarded as binding on the government and hence enforceable. It is only when the government acts under its nonstatutory general administrative power, that an instrument made by it can be regarded as a direction. The Court also stated: "It is not the form of the order, the method of its publication or the source of its authority, but its substance, which determines its true character." It is suggested that this statement may create confusion in so far as it may create the impression that "the source of power" of an order is not a material consideration in determining whether it is a direction or not. The truth is that "the source of authority" under which an order is issued is the crucial and determining factor to decide whether it is a direction or not. It is suggested that an instrument issued under a statutory power and fulfilling all the required formalities such as publication may not be characterised as directions. Similarly, directions issued under nonstatutory general administrative power cannot be given the status of rules whether they are published in the gazette or not. That the source of power is crucial in determining the nature of a government order finds support from another pronouncement of the Supreme Court, viz., Jayantilal Amratlal v. F.N. Rana.82 A notification issued by the President under Art. 258(1)of the Constitution83 entrusting to the commissioners in a State, the powers of the Central Government under the Land Acquisition Act, 1894, concerning acquisition of land for the Centre, was held to have the force of law to the extent of pro tanto amending the Act in question so that instead of the word 'appropriate government' in the Act, the words 'appropriate government or commissioners' were to be read. The Court clarified the position in the following words:84

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This is not to say that every order issued by the executive authority has the force of law. If the order is purely administrative or is not issued in exercise of any statutory authority it may not have force of law. But where a general order is issued even by an executive authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute such conferment of powers must be regarded as having the force of law.

(b) Directions in lieu of rules The Supreme Court has pointed out again and again that when a statute confers rule-making power on the government or an authority, the Government, or the authority concerned, is not immobilised in the absence of rules from functioning under the statute. The Government or the authority can issue directions pending the issue of rules. S. 46(1)of the Electricity (Supply) Act says that Grid Tariff "shall, in accordance with any regulations made in this behalf, be fixed from time to time . . ." S. 79(h)authorises the Electricity Board to make regulations laying down the principles governing the Grid Tariff. In UPSE Board v. City Board, Mussoorie,85 the Supreme Court rejected the argument that the Electricity Board could not fix Grid Tariff till the regulations were made. The Court interpreted S. 46(1)as not envisaging that no Grid Tariff could be fixed until such regulations were made. " S. 46(1)only means", said the Court, that "if there were any regulations, the Grand Tariff should be fixed in accordance with such regulations and nothing more." Framing of regulations is not a condition precedent for fixing the Grid Tariff. The Administration can take recourse to directions in lieu of making rules. S. 40(2)(j) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 empowering the Central Government to frame rules laying down procedure for transfer of property out of the compensation pool and the manner of realisation of the sale proceeds of the property. S. 14 authorises the Government to take such measures as it considers necessary or expedient for disposal of the compensation pool. The Central Government issued directions authorising urban agricultural property to be disposed of by auction. In Surinder Singh v. Central Government,86 the Supreme Court rejected the argument that property could not be auctioned till the rules were made under the Act. The Court observed:87 "Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of Rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the Statute."

(c) The Court explained "The expression 'subject to the Rules' only means, in accordance with the rules, if any. If rules are framed, the powers so confirmed (conferred) on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute."88

The Court ruled that under the Act the Central Government had ample powers to dispose of pool property by auction sale and for that purpose had authority to issue administrative directions. This judicial view lessens the urgency for the government to frame rules under an Act because most of the time it can take recourse to directions instead of the rules and its work is not hampered in any way. Thus, directions take the place of the rules. The reason for the judicial view that when a statute confers rule-making power on the Administration, it may continue to function by issuing directions pending the making of rules, may be the desire on the part of the judiciary to smoothen the administrative process, as it may take some time to frame the rules, and in the meantime, the Administration should not stand still. While this judicial view lends flexibility to the administrative process, it has one negative aspect as well, viz., the urgency to frame rules is minimized; the Administration may take its own time to frame the rules under a statute because the absence of the rules does not hamper it in any way.89

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When the Administration having rule-making power, issues certain norms, it may become difficult at times to identify the nature of the norms in question whether these are directions or rules, especially when the source of power under which the norms have been issued is not indicated. If it is said that the norms have been issued under the statutory power to make rules, then the norms can be characterised as rules without much difficulty. But when the source of power is not indicated, then the norms may amount to either rules or directions. The problem of identification of the nature of the norms becomes complicated as there are no definitive indices to apply to solve the problem. This can be illustrated by reference to service matters. Art. 309 of the Constitution empowers the President, or the Governor, as the case may be, to make rules to regulate the recruitment and conditions of service of persons appointed to the public services and posts in connection with the affairs of the Union or the State.90 The Judicial attitude is that it is not always necessary for the government to make rules under Art. 309to regulate service matters.91 In the absence of the rules, the government can, under its administrative powers, issue directions regarding service matters. The courts have argued that the executive power of a government is co-extensive with the legislative power of the legislature and, therefore, in the absence of a statute, or the rules made under Art. 309, directions can be issued to regulate service matters. Even when service rules exist, directions can still be issued to fill the gaps in the rules. Thus, the Supreme Court has observed in Sant Ram Sharma92 that in the absence of service rules made under Art. 309, there is no bar in the way of the Administration issuing directions as long as such directions are not inconsistent with any rule on the subject. While the Government cannot amend or supersede statutory rules by directions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue directions not inconsistent with the rules already framed.93 Service conditions can be altered by issuing executive instructions where the field is not occupied by statutory rules.94 The Government has the power to issue an administrative order in the absence of any statutory provision governing the field.1 However, in Shish Ram v. State of H.P.,2 the Apex Court held that executive instructions must yield to subsequent statutory rules i.e., statutory rules prevail over executive instructions. Once the statutory rules come into force, the administrative instructions are not to be adhered to.3 A non-statutory order cannot replace a statutory notification even if it purports to do so specifically, though a statutory notification can substitute a non-statutory notification/order.4 The Government cannot amend or substitute statutory rules by administrative instructions, but if the rules are silent on any particular point, the government can fill the gaps and supplement the rules by issuing instructions not inconsistent with the administrative order. The Government also can confer certain benefits on its employees by an administrative order.5 The executive orders/instructions should fill the gaps in the statutory rules and not be inconsistent with them.6 The Registry (PIL Branch) of the Supreme Court was directed not to accept any application or affidavit unless permitted by the Supreme Court. The Apex Court observed that the said direction was not consistent with the Supreme Court rules and could not be treated as a judicial order, rather it was only an administrative order and hence, the Court recalled the same.7 Administrative instructions/ circulars/orders cannot change the principle contained in the statutory rules.8 When power is given to the Government to issue notification, there is inherent in the same power to amend the same.9 A statutory notification may not be extended so as to meet a casus omissus.10 This judicial approach has given rise to a good deal of confusion and uncertainty as, in a number of cases, the courts have been called upon to decide whether the norms laid down by the government regarding a particular service matter amount to rules under Art. 309, or only to directions under its general administrative power.11 In a few cases, the norms laid down for promoting officers from a lower to a higher grade have been held to amount to only directions and not rules under Art. 309.12 It has been held that the government can issue instructions for reservation of posts for scheduled castes and backward classes under Art. 16(4).13 But, the Railway Establishment Code,14 and the portion of the U.P. Police Regulations dealing with police disciplinary matters,15 have been held to be rules and not directions. An idea of uncertainty prevailing in the area of service matters can be had by the way the Supreme Court has treated government memoranda fixing the age of retirement of civil servants. In I.N. Saksena v. State of M.P.,16 the question arose whether a memorandum issued by the Government of Madhya Pradesh fixing the age of retirement of civil servants should be characterised as a rule as having been issued under Art. 309, or only a direction as having been issued under the administrative power of the government. The Supreme Court ruled that it was merely an executive direction and not a rule on the following considerations: the memorandum in question had not been published in the gazette; it was in the form of a letter issued by the

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government to the collectors; its form (it began with the words that "The Government have decided") showed that the government was conveying an executive decision to the collectors to be followed by them. This view was reiterated in State of Assam v. Premadhar.17 Again, in State of Assam v. B.K. Das,18 the Court held an office memorandum issued by the Assam Government on the subject of age of retirement to be merely a direction and not a rule under Art. 309. After some time, a similar question arose in relation to central services. To begin with, Rule 56of the Fundamental Rules fixed the age of retirement at 55. Then an office memorandum was issued by the Central Government raising the age of retirement to 58 subject to certain exceptions. The date from which the memorandum was to be effective was mentioned therein. Thereafter Rule 56 was amended to incorporate the substance of the office memorandum. The Supreme Court ruled in Naidu19 that the memorandum must be held to have been issued under Art. 309and to have become effective on the date mentioned therein. There was nothing in the memorandum to suggest that it was not to be effective until Fundamental Rule 56 was consequently amended. In Naidu,the Supreme Court made no reference to the earlier Saxena case. The Naidu pronouncement was made on 9-1-73, i.e. a few days after Das which judgment was delivered on 22-12-72. Naidu took no notice of Das nor did it explain as to why it took a view different from that in Das.20 The only explanation for the Naidu ruling may be that the purport of the office memorandum in question was incorporated later into the relevant rule, and so the Court may have thought it fit and expedient to treat the memorandum as a rule from the very beginning to avoid any confusion. Another possible explanation may also be that originally the age of retirement was prescribed through a rule; this age was extended through an office memorandum. As a rule cannot be amended through a direction, the only way in which the advantage could be given to the employees was to treat the memorandum as a rule and not a direction. A very significant judicial pronouncement on directions is V.T. Khanzode v. Reserve Bank of India.21 The question was regarding the status of regulations concerning staff seniority laid down by the Bank in Administrative Circular and office order and which had been acted upon by the Bank in drawing seniority list. The decision of the Bank was challenged by some staff members. The Reserve Bank is a statutory corporation's set up by the Central Government. S. 58(1)of the Reserve Bank Act, 1934 confers power on the Central Board of Directors to make regulations in order to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of the Act. under S. 58(1), the Bank can make regulations providing for service conditions of the Bank's staff. This regulation-making power is subject to two conditions: (i) prior sanction of the Central Government; (ii) laying of the regulations before each House of Parliament. Nevertheless, the Court ruled that the 'regulations' in question were merely directions as they had not been made under S. 58(1), but under the administrative power of the Bank given to it by S. 7(2) of the Act. According to S. 7(2), the general superintendence and direction of the affairs and business of the Bank are entrusted to the Central Board of Directors. On this point, the Court observed: "Matters relating to the service conditions of the staff are, preeminently, matters which relate to the affairs of the Bank. It would therefore be wrong to deny to the Central Board the power to issue administrative directions and circulars regulating the conditions of service of the Bank's staff."

Thus, S. 58(1) is not the sole repository of the power of the Bank to provide for conditions of service of the Bank staff. S. 58(1) does not prohibit issuance of such directions or circulars. To do so would be "patently to ignore the scope of wholesome powers" conferred on the Bank by S. 7(2). The Court accepted the proposition that a statutory corporation can perform only such acts as are authorised by the statute creating it. It cannot exceed the powers beyond what a statute provides expressly or by necessary implication. If an act is neither expressly nor impliedly authorised by the parent statute, it must be taken to be prohibited. Power to regulate conditions of service of the staff lies with the Bank under S. 58(1), but that is only an enabling provision and it "does not justify the argument that staff regulations must be framed under it or not at all." The Bank can regulate conditions of the service of the staff either under S. 58(1) or administratively under S. 7(2). So long as staff regulations are not framed under S. 58(1), the Bank may issue administrative circulars for the purpose or providing for service condition of its staff under S. 7(2). The Court observed: "... the power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subjectmatter on which a rule or regulation can be framed, until it is so framed. The only precaution to observe in the cases of statutory corporations is that they must act within the framework of their charter. Its express provisions and necessary implications must at all events be observed scrupulously."

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The next question was to ascertain whether the staff regulations in question had been issued under S. 7(2) or S. 58(1), and the Court ruled that they had been issued under S. 7(2). The Court advanced the following reasons for this view: First, the regulations had not been made with the previous sanction of the government as is required by S. 58(1). Secondly, while issuing the regulations, the source of power under which they were made was not mentioned. The Court conceded that failure to do so was not by itself conclusive of the matter, if otherwise the concerned authority has necessary power to do so. But if the common course of manner in which the power has been exercised establishes that while exercising power under the section, the practice has been to mention the source, that would be a relevant factor in determining whether the regulations have statutory force or not. The Court noted that various other regulations promulgated by the Bank did mention the source of power in the recitals. In such a context, the absence of such a recital in case of the regulations in question led to the inference that they were not made under S. 58(1). The staff 'regulations' being in the nature of directions, they could be altered or amended by administrative circulars. The Court also upheld the retrospective operation of the seniority scheme on the ground that it was necessary to rectify imbalances and anomalies created by the previous method to determine seniority. The choice of the date to give effect to the scheme seemed to be "the best solution in the peculiar circumstances of the case."22 The case blurs the distinction between rules and directions. One can understand as to why the Bank would prefer to make service regulations under S. 7(2)rather than under S. 58(1). That way the Bank enjoys more flexibility, but that precisely is the reason to discountenance resort to directions rather than to rules. The basic question is: should the courts countenance use by a body of its administrative power in preference to its legislative power? Should the courts accept making of directions instead of rules when the body concerned has rulemaking power ? From the point of view of the affected person, it is preferable to have rules rather than the directions. There are several reasons for this: making of rules is a more formal affair; it is subject to the greater discipline of Administrative Law, e.g. publication, laying before Parliament, previous sanction of the Central Government. Any change made in the rules will also be subject to the same conditions. The parent statute may hedge the rule-making power with some procedural formalities. But all these safeguards are bypassed when resort is had to directions rather than to rules. Changes can be made in the directions frequently without any such formalities. The administrative power of the Bank under S. 7(2)is subject to governmental directions, if any issued. On the other hand, the regulationmaking power of the Bank under S. 58(1) is subject to the 'previous sanction' of the Central Government. Minimising the difference between S. 58(1) and S. 7(2), the Court said, "In either case, the Central Board has to abide by the decision or directions of the Central Government." "The overall authority of the Central Government acts as a restraining influence on any action taken by the Central Board, whether it acts under one or the other provision of the Act". This, however, does not seem to be a correct approach. It is one thing to seek prior approval of the Government (as is necessary in case of regulations), but quite another to make directions and let the Government raise any objections thereto later if it so wants. That way the government control is weakened, and the freedom of the Bank enhanced. The decision of the Supreme Court in Khanzode will have the following undesirable effects: (i) (ii) (iii)

Statutory bodies will be encouraged to resort more and more to directions instead of rules or regulations because this way they have more manoeuvrability and are subject to less controls; The courts will have to hold, to avoid the staff being adversely affected, that the directions are binding; and, thus, it will confound the separation and distinction between rules and directions.

The only one justification in favour of the Court's decision in the instant case is that since 1948, the Reserve Bank has been resorting to the technique of directions to regulate staff matters and to hold the directions now as unauthorized would have been to throw away everything in confusion. But, after Khanzode,it remains doubtful whether the Reserve Bank, or any other statutory body for that matter, will ever resort to making regulations for the purpose. The better course seems to be for the Central Government administratively to encourage the statutory bodies to resort as far as possible to their statutory power to make regulations and rules rather than use their administrative power to issue directions so that the ultimate government control can be made effective over these bodies.

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The Khanzode ruling has been applied by the Supreme Court recently in V. Balasubramaniam v. T.N. Housing Board.23 A statutory body had power to make service regulations with the previous approval of the State Government. The corporation made regulations laying down norms for the promotion of the staff members and got the approval of the government. The regulations were not however published in the official gazette as required by the T.N. General Clauses Act. The Court held that the corporation could appoint staff members without making any regulations in the exercise of its administrative power, and can also issue directions. The 'regulations' were not enforceable as such in the absence of publication in the official gazette, but could be treated as directions. Later, the corporation sought to modify these 'regulations' by making fresh regulations but did not obtain the sanction of the State Government thereto. The Court ruled that the norms for promotion laid down in the earlier 'regulations' could only be relaxed by the corporation passing a resolution and obtaining the government's approval. The earlier norms having been laid down with the government's approval could not be changed without obtaining government's approval. Any such action would be arbitrary in character. The circulars issued by the Union of India, being administrative in nature, could not override the constitutional provision.24 In State of Assam v. Radha Kanoo,25 the Supreme Court held that the administrative instructions cannot override the statutory operation of the Regulations and Rules nor do they give legitimacy to illegal acts done in compliance of them; they cannot override the law of the land as laid down by the Supreme Court either.26 Rules and regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the rules and regulations framed thereunder. The administrative instructions issued or the notes attached to the rules, which are not referable to any statutory authority, cannot be permitted to bring about a result which may take away the ri