C H A P T E R IV

JUDICIAL REVIEW OF DELEGATED LEGISLATION

In chapter III we examined the constitutional limits within which

legislatures can vaUdly delegate their legislative function. On the assump­
tion that a law-making power is validly delegated, we proceed to consider
in this chapter how far the courts can control the exercise o f that power
by the delegate. In all the countries under examination, the courts can
question the validity of subordinate legislation on the following two prin­
cipal bases:

(a) the subordinate law is substantively ultra vires because the

delegate has exceeded the scope o f the power authorising the
making of the law.
(b) the subordinate law is procedurally ultra vires because the dele­
gate did not follow the prescribed procedure in making the law.

Before taking up the discussion o f the doctrine o f ultra vires

reference may be made to a formula which is at times used to exclude the
jurisdiction of the courts, viz; the rules made under the Act shall not be
called in question in any court. The legal implications o f this clause are
not yet clear. In India, however, courts have held that the formula, “ No
order made in exercise o f any power conferred by or under this Act shall be
called in question in any c o u rf’i, does not preclude judicial review o f the
delegated legislation,® because the formula assumes that the order is made
in exercise of the power, which clearly leaves it open to challenge on the
ground that it was not made in conformity with the power conferred.

A. Substantive Ultra Vires

In all the countries under examination, the courts have uniformally

taken the view th at delegated legislation made in excess o f powers conferred

1- s. 16(1) o f the Defcnce o f In d ia A ct, 1935.

2- Keshav Talpade v. Emperor, A .I.R . 1943 F.C . 1; Emperor v. Sibnath Banerjee, A .I.R .
1945 P.C . 156.
 Ill

on the delegate is invalid. But, as the following discussion will show, the
grounds on which delegated legislation may be held to be unauthorised are
not the same in all countries. The difference arises because the limitations
on the exercise of the delegated power are not confined only to the enabling
Acts, but may spring from other sources ai well, the scope of which varies
from country to country. If the constitution of a country imposes any
general restriction on law-making, the delegated legislative power also must
be exercised subject to those restrictions. For example, in India, statutory
rules cannot abridge the fundamental rights guaranteed by the Constitu-
tion.i Again the courts may and, sometimes do, read certain implied limi­
tations on the delegate’s authority to make laws. Thus unreasonableness
is a ground for invalidating departm ental legislation in South Africa but
not so in the U.K.2 At times, in the same country while the courts read
an implied limitation on the power to make one type of subordinate legis­
lation, they may decline to im port the same in respect of other types. To
take an illustration from the U.K., Chester v. Bateson^ laid down that a
regulation could not take away the right of access to the courts without
an authorisation in that behalf from the empowering Act in clear language
but according to Liversidge v. Anderson‘S no such restriction applies in
respect of departmental legislation affecting the right to personal liberty
during the days of war. Judicial decisions regarding substantive ultra vires
may be discussed under the following heads;

1. Delegated legislation not aufhorised by the enabling Act.

In all countries under study, excess of authority is a common ground

for invalidating subordinate legislation. If a rule-making power is con­
ferred on the-executive in very wide terms it will, of course, be difficult to
ascertain the precise limits o f the power intended by the legislature. But
once such limits are determined by the courts they unhesitatingly strike
down the instruments which fall outside those limits. We m ay take a case
or two from each country.

1- A rticle 13 of the Constitution of In d ia.

2- See this C hapter, below, u nder the heading of “ Unreasonableness o f Delegated Legis­
lation.”
3- (1920) 1 K .B . 829 a t p. 83 6 ..
4- (1942) A .C . 206.
 112

In the U.K. it was held in R. v. Minister o f Health, E x parte Davis^

th at an improvement scheme not within the purpose of the empowering
Act was ultra vires. The Housing Act, 1925, authorised a scheme ‘for
the rearrangement and reconstruction of the streets and houses in the area
o r some of such streets or houses’. Bat the scheme in question was, as des­
cribed by Lord Hewart, C.J., not for the above purpose but ‘for the purpose,
if and when the local authority thinks fit, of resale, and, of course, of resale
a t the highest obtainable price’. The court granted prohibition to restrain
the Minister from confirming the scheme.

Lord Herschell observed in Institute o f Patents Agents v. Lockwood^

th at if an enabling Act provided that instrum ents made thereunder
“ should have effect as if enacted in this Act” , the jurisdiction o f the
courts to inquire whether or not the instruments conformed to the statute
was taken away. The object of this clause, according to his Lordship, was to
make the courts as powerless to pass judgment on subordinate legis­
lation as they were helpless against an Act of Parliament. This view has
been disapproved by the House o f Lords in Minister o f Health v. The King^
(on the prosecution o f Yaffe) where it was said that the above clause would
n o t save the instruments which were inconsistent with the empowering
Act, because:

T h e A ct o f P a rlia m en t in w hich it is contained is the A ct w hich provides for the

fram ing o f the scheme, n o t a subsequent Act. I f therefore the schem e, as m ade, c onflicts
w ith the Act, i t will have to give w ay to the A c t----- I t w ould be othci-wise if the scheme
h a d been, p e r se, em bodied in a subsequent .A ctj^or then the m axim to be a pplied w ould
have been “Posteriora derogant prioribus”.^

The Committee on M inister’s Powers took the view that the contro­
versy regarding the efTect o f “as. if enacted” clause “ had been laid to rest”
by the Yaffe case, though according to Allen the precise effect o f the clause
“ is still doubtful” and “remains undetermined.’’^

!• (1929) 1 K .B . 618. O dgers stated the position as follow s: “ R ules m ust be read
together w ith their relevant A ct; they cannot repeal or con trad ict express provisions
in the A ct from w hich they derive th eir auth o rity . I f the A ct is plain
the ru le m ust be interpreted so as to be reconciled w ith it or
if it cannot be reconciled the ru le m ust give way to the plain term s o f the A c t."
Odgers, The Construction o f D a d s and Statutes (1952), 3rded, p. 303, see «lio,
Hal.bury’s Laws o f England, Vol. 31,.
2- (1894) A .C . 347.
3- (1931) A .C . 494.
4. V iscount D unedin, Ibid. a t 5 0 l
5- T h e sam e opinion is expressed in Craies, Statute L aw (5th ed.), p. 283.
 113

For an Australian illustration holding subordinate legislation void

on the ground that it exceeded the enabling power, reference may be made
to Morton v. Union U.S. Co. o f New Zealand Ltd.^ S, 164 of the Excise
Act 1901-49 provided inter alia: “The Governor-General may make regu­
lations not inconsistent with this Act prescribing all matters. . . as may be
necessary or convenient to be prescribed for giving effect to this Act or for
the conduct o f any business relating to the excise. The High C ourt held
that the provision authorised only such regulations which were, for the
more effective administration o f the provisions, actually contained in the
Act and not those which departed from the positive provisions made by the
Act, or which were outside the field marked out by the A ct itself. Consequent­
ly, a regulation which in the opinion of the court imposed a distinctive
and independent liability in addition to the liabilities imposed by the Act,
was invalid.

As to the effect of the “as if enacted clause” , a State Supreme Court

refused in Foster v. Aloni'^ to hold that every regulation purporting to be
made under a provision governed by such clause, was automatically vali­
dated. The court observed that the conditions laid down by the enabling Act
as precedent to the exercise of delegated power, must genuinely purport to
be made under the power delegated by the enabling statute. If there was
inconsistency between the sections of the empowering Act and the regula­
tions, “ (normally) the inconsistent section would be treated as the leading
provision and the regulation as the subordinate.’’^

As early as 1916, the Canadian Supreme C ourt had taken the view
similar to that taken by the House o f Lords in 1931 in the Yaffe case. The
relevant decision was of Belanger v. the King^ in which a certain rule, pro­
fessedly made under certain provisions of the Government Railways Act,
directed the doing of an act which was inconsistent with the explicit re­
quirements of a section of the statute. Another section o f the statute pro­
vided, “All such regulations made under this Act shall be taken and read
as part of this Act.” The court held that the said rule could not override
the inconsistent section o f the Act. Despite the provision th at regulations
made under the Act were to be taken as part of the Act, Duff, J. observed^:

1- (1951) 83 C .L .R . 402 a t pp. 409, 410.

(1952) A .L .R . 18 (F.C .)
3- Ibid, at 20.
4- 34 D L R (1917) p. 221.
r>- Ibid, at 220.
 114

1 see no difficulty in holding th at in this case the regulation, in so for as it is inconsis­

tent w ith section 16, mvist give way; or as it is perhaps better to pwt it, th e regulation
must be re ad as subject to an im plied proviso th a t n o th in g in it shall be considered
to sanction a departure from section 10.

In R ex V. Ngubane,^ the South African Supreme C ourt held a sta*

tutory regulation invalid on the ground that it exceeded the authority con­
ferred by the Act. In this case S.23 of the Diseases of Stock Act empowered
the Governor-General to make regulations for a variety of purposes and
ended with the words “ generally for protecting the introduction or spread
of any disease within the Union . . . and for securing co-operation between
officers and owners.’’ A regulation claimed to have been made under
this general clause provided for a census of cattle and required an owner
of cattle to take an active part in the compilation of a census return of his
cattle. The Supreme C ourt held that the regulation was not authorised
by the Act and was therefore ultra vires.

® In the U.S.A., the judicial authority for invalidating subordinate

legislation made in excess of the enabling power, is to be found in Morill v.
Jones.^ The relevant statute provided that, “Animals, alive, specially im­
ported for breeding purposes from beyond the seas, shall be admitted free
(of duty), upon proof thereof satisfactory to the Secretary of the Treasury.”
But a regulation made under this provision required that before a collector
adm itted such animals free, he must “ be satisfied that the animals are of
superior stock, adapted to improving the breed in the United States.” The
Supreme Court held that the regulation was unauthorised as it exceeded the
delegated power. The statute clearly included animals of all classes, while
the regulation sought to confine its operation to animals of ‘superior stock’.
This was manifestly an attem pt to put into the body of the statute a limita­
tion which Congress did not think it necessary to prescribe.

In India, courts have clearly taken up the position that rules falling
outside the purview .of the powers delegated are invalid. In Chandra Bali
v. i?.,3 the validity of certain rules made under S. 19 of the N orthern India
Ferries Act was questioned-. The section authorised the m aking of rules
for the purpose of maintaining order and safety of passengers and property.
The commission, however, made inter alia, certain rules for the prupose of

1- 1952 S .A .L .R . 21 (A .D .)
2- 108 U .S . 207 (1882).
3- A .I.R . 1952 All 795.
 115

forbidding the establishment of private ferries within a distance of two miles

from the limits of another ferry. The court held the rules ultra vires as
they were outside the scope of the rule-making power conferred by the Act.

In Munxha Singh Dhaman Singh v. Slale o f Punjab^, Rule 16 (//) of the

East Punjab Consolidation Rules was struck down as being in excess of
the rule-making powers conferred by S. 46 o f the E.P. Holdings Act, 1948,
because th e consolidation officer in pursuance of that rule exercised and
enjoyed vast powers whose unfettered exercise resulted in virtual liquida­
tion of the areas of the individual proprietors which was outside the scope
and purpose of the Act. A nother instance of the same type is Shahabuddin
Khan v. The State o f U.P.,^ where a government notification curtailing the
powers of the Chief Inspector of Factories was held to be in excess of the
delegated authority conferred by S. 105 of the Factories Act.

The Supreme Court considered this question in Chief Commissioner

o f Ajmer v. R. S. Dani.^ The Ajmer Merwara Municipalities Regulation,
1925, laid down certain qualifications for enrolment as an elector of the
Ajmer Muncipality. The Chief Commissioner was empowered to make
rules consistent with the regulation, among other things, for ‘the preparation
and revision o f electroral rolls, and the adjudication of claims to be enrolled
and objections to enrolm ent.’ The Chief Commissioner made the elec­
tion rules, prepared the electoral rolls accordingly and published them
in the gazette as final. He however omitted to provide for giving oppor­
tunity to parties concerned to scrutinize the qualifications o f the electors
and for revision of the rolls and adjudication of claims and objections to
enrolment. The court held that because of the said omission the rules did
not serve the purpose of the regulation and were therefore defective. It
was further held that for the same reason the electoral rolls were not in
conformity with S. 30(2) of the regulation which prescribed the qualifica­
tions of electors and could not, therefore^ form a ba^is for any valid election.
The court took this view notwithstanding the fact that S. 248(4) of the
Regulation provided, “ On publication in the Official Gazette of any rules
made under this Regulation such rules shall have effect as if enacted in
this Regulation.” This decision indicates that in India also ‘as if enacted’
clause cannot save subordinate legislation from being held invalid on the

1- A .I.R . I9 6 0 P unjab 3217.

2- A .I.R . 1960 AU. 373.
3- )9tf7 S .C .J, 193; A IR 1957 S.C . 304.
 116

ground that it does not conform to the enabling Statute.! xhe court, of
course, said that it was unnecessary to consider whether in the event o f an
inconsistency between the section o f the regulation and the rules made
thereunder, the section would prevail or the rules. But when the court
had expressed the opinion that because of the omission to make provision
in the rules for the revision of electoral rolls etc., the rules were defective,
there remained, it is submitted, little to be said about the incon­
sistency between the regulation and the rules. Again, if the electoral
rolls could not stand because o f the said omission and the resulting non­
conformity with the regulation, how could the rules?

Some of the Indian High Courts have already held th at the ‘as if
enacted’ clause does not preclude the courts from enquiring whether or
not statutory rules conform to their enabling Act.i

It seems that the courts will not im port any implied doctrine to enlarge
the ambit of delegated powers. T h u s in Agarwal Ayengar and Co. v.
State,^ it was contended that the power conferred on the rule-making
authority to control the price o f textiles impliedly carried with it the power
to regulate the price o f “likerin wire”—an article necessary for use in the
machinery for carding cotton. The principle relied upon in support of the
contention was that whenever power was conferred upon the legislature to
pass laws in a given field, that power carried with it the power to regulate
all the matters which might be called subsidiary or ancillary. The court
held that this principle was inapplicable in interpreting the subordinate
power of legislation conferred upon the executive government.

N or do the courts permit the rule-making authority to give retrospec­

tive operation to its rules unless and until that power was expressly con­
ferred by the parent Act.s

It may be observed here, however, that the effective application of the

rule that the delegated powers m ust not go beyond the scope o f the enabling
authority is conditioned by the delegatory Act defining the precise limits
of the law-making power. As pointed out earlier, if the power to make
rules is delegated in very wide terms there would be little scope left to apply
]• Stale V . Kunja Behari A .I.R . 1954 P attia 71; Slate v. A. K. Jain, A .I.R . 1058 M .P. 162
at 165.
2- A .I.R . 1951 Bom. 397.
General S. Shivdev Singh v. State o f Puiyab, A .I.R . 1959 P u n ja b 453; A/. L. Bagga
V. Murhar Rao, A .I.R . 1966 H y d . 35,
 117

the rule o f ultra vires. The language used, for example, in S. 2, sub-sec.
(1) of the Defence of India Act, 1939, is so comprehensive that it is difficult
to conceive how any of the rules could be beyond its scope. S. 2(2) o f the
Act gave certain powers which were, however, declared to be “ without pre­
judice to the generality of the powers conferred by sub-section (1).” In King
Emperor v. Sibnath Banerji,^ the Privy Council held that a rule which was
covered by the more general language used in sub-sec. (1) would not be­
come ultra vires although it did not fall within the terms o f the legislative
provisions of sub-sec. (2).

Subordinate legislation, to be valid, must not be in conflict with or

repugnant to the delegating Act.

In Ram Prasad v. State,^ S. 49 o f the U.P. Panchayat Raj Act, 1949,

laid down that every case or proceeding cognizable by Panchayat Adalat
(village court) must be tried by a bench constituted in the manner pro­
vided in the Act. Rule 87 made under the Act laid down that three mem­
bers o f a Panchayat Adalat should constitute the quorum o f meeting of any
bench. This number was less than what was prescribed in the Act, and so
the rule was held invalid as being inconsistent with the provisions of the
delegating Act.

Similarly, in ManepaUi Venkatanarayana v. The State o f Andhra Pradesh;*

Rule 31(5) of A.P. General Sales Tax Rules, 1957, was declared to be in
conflict with the delegating statute i.e., the Sales Tax Act. The Act in this
case did not prescribe the assessing authority but left it to the State Govern­
ment to make the appointment. It gave the power of reassessment only to
the assessing authority and to none else, whereas the rule-making authority
extended it, under the impugned rule, to include other authorities also.
The rule was held ultra vires and void.

Sometimes the conflict between the parent Act and the subordinate
legislation may not be apparent, yet the rule may be found to be repugnant
to the scheme of the Act. In Mohammad Hussain Gulam Mohammad v.
The State o f Bombay ^ the validity of Rules 53, 65, 66 and 67 made under
the Bombay Agricultural Produce M arket Act, 1939, was questioned

1• 72 I.A . 241; See also Hart Shanker Bagla v. M . V. Stale, A .I.R . 1951 S.C . 46S.
2- A .I.R . 1952 All. 843.
3- A .I.R . 1960 A .P. 171.
4- A .I.R . 1963 S .C . 97.
 118

before the Supreme Court on the ground that they were in conflict with
the enabling Act. Rule 53 provided that the m arket committee should
levy and collect fees on agricultural produce brought and sold in the
m arket area at such rates as might be specified in the bye-laws. The rule,
however, failed to prescribe the maxima to which the bye-laws should
conform. S. 11 of the Act clearly stipulated th at the maxima should be
prescribed by the Rules. On this ground, the Supreme C ourt held rule
53 ultra vires S. 11.

S. 5A, read with the proviso to S. 4(2), contemplated the Commis­

sioner to be the licence issuing authority, but not the m arket committee.
Rule 65, however, conferred this power on the market committee. On
the ground of the rule being in conflict with the Act, the Supreme Court
struck down rule 65. Rules 66 and 67 being of the same description, were
also declared ultra vires.

For the same reason referred to above, a notification was quashed

in Ram Sewak v. State o f U.PA The U.P. Governm ent issued a notifi­
cation under S. 6(1) of the Land Acquisition Act, 1894, empowering the
collector to take possession of about thirty-one acres of unspecified lands
in a specified village. The language used in the section is, “any particular
land is needed for a public purpose.” The Allahabad High Court held the
notification invalid as it was not in conformity with S. 6. The court ob­
served that “the law requires the land to be particularised in the notification
under S. 6. It requires definiteness in the m atter and it is clear that
in the present case definiteness is wanting. . . . In my judgm ent the impugned
notification in the instant case suffers from the defect o f want of particu­
larity and is not in accordance with law.” 2

In Haji H. Ibrahim v. Emperor,^ the power to make rules under the

Factories Act for precautions to be taken against fire was held not to
include the power to m ake rules for the consequences of the .fire since the
Act intended th at the provisions regarding that m atter should be made by
each factory (as far as could reasonably be required in the circumstances
of each factory), and then left to the inspectors to see if the necessary pre­
cautions had been taken. Rule 37 of the Factories Rules was therefore
declared ultra vires.

1- A .I.R . 1963 M l. 24.

2- Ibid, a t 20 (Per Jag d ish Sahai, J . ) .
3- A .I.R . 1043 Bom. 6.
 119

The principle of implied conflict has been invoked in Adarsh Industrial

Corporation v. M arket Committee, KarnalA S. 31 o f the Punjab Agricultural
Produce Markets Act of 1939 provides that dues from the market com­
mittee to the government shall be recovered as arrears o f land revenue.
Rule 51 of the rules made under the above Act provides for the same
mode of recovery of fees payable to the market committee by others. The
Punjab High. C ourt held the rule ultra vires S. 3L It said th at the recovery
of sums as arrears of land revenue was a m atter o f legislative policy clearly
provided in S. 31,. but its scope was restricted to sums payable to the
government by the m arket committee. S. 31 excluded, by implication, the
recovery of fees payable to the market committee as arrears o f land revenue.
Consequently, it Was not for the rule-making authority to extend the scope
of S. 31 and include matters following outside its purview. The rule was,
therefore, inconsistent with the legislative intention gathered from S. 31.

Occasionally a question arises whether a subordinate law becomes

invalid, though otherwise within the scope of the delegating Act, if it is
in conflict with some other statutory or non-statiltory provision of law.
The position is that if the statute itself declares that the rules formed
thereunder shall have the same efi'ect as if enacted in the Act, then the rules
would be valid even though they come in conflict with some other existing
law. For example, in Subbarao v. Income Tax Commissioner,^ the validity of
Rules 2 & 6 framed under the Income-Tax Act, 1922, which provided that
an authorised agent could not file the application for the removal of re­
gistration of a firm, was questioned. These rules though within the pur­
view of the authority delegated under the Act, were in conflict with the
Attorney Act of 1822 which permitted the agent to sign on behalf of the
principal. Relying on the principle that a special enactment over rided
more general laws on the same subject, the court held the rules valid.

If instead of the ‘as if enacted’ formula, the parent statute says that
the rules made under it shall have efi'ect notwithstanding anything incon­
sistent therewith contained in any enactment other than the enabling Act,
then also the result would' the same. This has been so held by the
Supreme C ourt in Hari Shanker Bagla v. State o f M.P.^ where it
declared S. 6 of the Essential Supplies Act, which provided that any
order made under S. 3 shall have efi'ect even if it was inconsistent with any

I- A .I.R . 1962 P u n ja b 42B.

A .I.R . J952 M ad, 127.
•H- A .I.R , 1954 S.C . 465.
 120

other existing law, a valid piece of legislation.

Another situation may arise where no such provision exists in the

statute but a rule framed under the rule-making power conferred by an
Act may be found to be inconsistent with the provisions o f an existing
Act. A similar question arose in T.B. Ibrahim v. R. T. Authority.^ S. 68
of the M otor Vehicles Act sets out that a Provincial Government may
make rules for the purpose ofprohibiting the picking up or setting down of
passengers by stage or contract carriages at specified places or in specified
areas or at places other than duly notified stands or halting places. Rule
268 made under the power conferred by the above provision provided that
in case of public service vehicles the transport authority might fix or alter
the starting places and termini between which such vehicles shall be per­
mitted to be used within its jurisdiction. On the other hand, S. 270 of the
Madras District Municipalities Act of 1920 empowers the Municipal
Council to construct or provide halting places and m otor vehicle stands.
Where a Municipal Council has provided a public landing place, halting
place or cart stand, the executive authority may prohibit the use for the
same purpose o f any public place or the sides of any public street. It was
contended that the authority which was clothed with a power to fix a stand
was the municipality under the Madras District Municipalities Act and not the
Regional Transport Authority who derived its power from rule 268 of the
Madras Vehicles Rules framed under the M otor Vehicles Act, 1939. Hence
rule 268 was bad as being inconsistent with S. 270 o f the District Munici­
palities Act.

The Supreme Court did not hold that there was any inconsistency
between the rule and the State Act, nevertheless, it did observe that
if rule 268 was within the power of the rule-making authority ‘it follows
that it cannot be challenged as being void because it is not consistent with
some general law.’

It is doubtful if the courts in England, in the absence of an express

authorisation by Parliament, would be willing to give such an operation to
subordinate legislation.^

A .I.R . J9.53 S.C . 7i).

Thus in Perry v. London General Omnibus Co., (1961) 2 K .B . 335 a t p . 348, the court
doubted if in the absence of an express provLsion a statutory instrum ent could repeal
or am end on A ct o f Parliam ent.
 121

2 . Delegated legislation violating fundamental law

In the United Kingdom there is no fundamental law or a written

constitution to which Acts of the legislature should conform. Conse­
quently a legislative grant made by the U .K .’s Parliam ent cannot be read
subject to any limitation save those contained in the grant itself. Provided
the Parliament so authorises, subordinate legislation can amend or repeal
an Act of Parliam ent itself. Thus, in Miller v. Boothm ani the Court
of Appeal held Regulation 10(c) of the W ood W orking Machinery Regula­
tions, 1922 to have modified the provisions of S. 14 o f the Factories Act
of 1937. The power to modify was expressly given by the Act.
It therefore follows th at whenever the question of vires o f a piece of sub­
ordinate legislation arises in the U .K ., what the courts have to determine
is whether the necessary authority has been conferred by the empowering
Act. If the language o f the enabling statute is not clear, the problem is
one of interpretation and then the intention of Parliam ent is to be
ascertained.The following decisions will show the approach of the courts
in cases where subordinate legislation affects what hiay be called the
fundamental rights of the subjects.

In Chester v. Bateson,^ a statute authorised the m aking of regula­

tions for the public safety and successful prosecutioiii o f the war. One
of the regulations made under the statute prohibited, in certain cases,
proceedings, to recover possession of the dwellings o f the workmen
employed in the manufacturing of war materials, and imposed penalty
for taking any such proceedings. It was held that the regulation forbade
the owner o f the property access to all legal tribunals in regard to
this matter for which there was no authority in 'th e statute. Avory,
J. observed

N othing less th an express words in the statute tak in g away the right of the K ing’s
subjects o f access to th e courts o f justice w ould authorise or justify it.

In R. W. Paul Ltd. v. Wheat Commission * a bye-law, which looked

*like more a departm ental regulation than a rule of a local authority,^

■1- (1944) 1 K .B. 337.

2- (1920) 1 K .B . 829.
3- Ibid, at 837.
(1937) A .C . 139.
5- See Griffith & Street, op. cit., 116.
 122

was held to be ultra vires because it purported to dispense with an Act of

Parliament for which no express authority could be found in the enabling
statute.

On the other hand, in R. v. HaUiday^ the contention that depart­

mental legislation could not affect personal liberty without parliamentary
authority in clear language, was rejected. The regulation involved in this
case was a war-time regulation made under the Defence of the Realm Act,
1914, and allowed the government to detain without trial a person of alleged
‘hostile origin or association’. There were no express words in the enabling
statute granting such a wide power and this, in the opinion o f the dis­
senting judge. Lord Shaw, made the regulation ultra vires. But the majo­
rity upheld the regulation as a necessary security measure and within the
authority of the Act.

It shows that subordinate legislation in the U.K. has not received

a uniform interpretation from the courts. In Institute o f Patent
Agents V. Lockwood,'^ the Board of Trade was authorised by Parliament
to make such general rules as were, in the opinion of the board,
necessary to give effect to the provisions o f the relevant statute with regard
to the registration of patent agents. One o f the rules m ade by the board
required every patent agent to pay an annual fee for being registered. It was
claimed that the rule was ultra vires as the parent Act did not expressly
authorise imposition o f a tax. The House o f Lords, however, held that the
general words used in the statute conferred the necessary power. In
Attorney-General v. Wilts United Dairies^ however, the same court had
held that to charge a licensing fee under a regulation amounted to taxation
and was illegal in absence of express authority from Parliament.

The only conclusion possible from the above interpretation appears to

be that in the U.K. subordinate legislation encroaching on basic rights of
the subjects will not be deemed to be valid without express authorisation
from Parliam ent; whereas in some cases, however, a general and broadly
phrased power may be regarded as impliedly granting the required authority.

In countries where powers o f the legislature are limited and defined

by a written constitution, the position of subordinate legislation as to its

1- (1917) A .C . 260.
2- (1894) A .C . 347.
:!• (1922) 38 T .L .R . 781.
 123

vires is different from what we find in the U.K. In the U.K. there is only
one test to determine the validity of subordinate legislation, viz. whether
or not it is authorised by the enabling statute. There is no further test
except that o f ‘good faith’ which we shall discuss below. The tests, which
have been applied to subordinate legislation by the courts in Australia,
Canada, South Africa, U.S.A. and India, each o f which has a written
constitution, are mainly two, The first is, whether or n o t the enabling
Act, or the enabling provision, is itself valid. If a legislature purports
to delegate a power which it does not itself possess under the consti­
tution, or otherwise violates a constitutional provision, the Act will
be invalid, and subordinate legislation based on such Act will conse­
quently fall to the ground. “ Every Act which confers power to make
subordinate laws” , declared the Supreme C ourt of India in Narendra
Kumar v. Union o f India,^ “ does so with an implied condition that such
legislation shall be in accordance with the provisions of the Consti­
tution.” The second test which compliments the first, is whether or not
subordinate legislation violates any provision of the Constitution. If it
does, it is unauthorised, because the legislature should not be deemed to
have authorised what it could not itself do. However, if the legislature did,
in express terms, authorise its delegate to make laws which would be in­
consistent with the constitution, the m atter should fall under the first test
and the laws would, again, be invalid. ^

In Australia, in the Jehovah's witnesses case,^ the court considered the

validity of the National Security (Subversive Associations) Regulations
1940-41 and of the National Security Act 1939-40, under which these Regu­
lations were framed. The regulations made unlawful all bodies, which in
the opinion o f the Governor-General, were subversive to the war effort.
Consquently the association of the Jehovah’s witnesses, a religious orga­
nisation believing in neutrality in matters relating to war, was. declared to
be an unlawful body. The regulations ^nd the Act were challenged as void
being inconsistent with S. 116 o f the Constitution which provided that the
Commonwealth shall not make any laws prohibiting the free exercise of
any religion. The court found that the constitutional provision was not
infringed by the regulations or the Act. It was, however, of the view that
a contravention o f the provision would have rendered the offending legis­
lation ultra vires.

1- A .I.R . 1900 S .C . 430 a t p . 433.

2- Adelaide Co. etc. v. CommonweaUh, (1943) 07 C .L .R . 116.
 124

In Canada, where the Constitution distributes legislative powers

between the Dom inion Parliam ent and Provincial Legislatures, the Saskat­
chewan Court of Appeal described the above two tests as follows
I t is only axiom atic to say th a t a proviacial legislature cannot delegate pow er which
it does not possess, n o r can it enlarge o r extend its c o n stitu tio n al powers by a process
of a delegation. T h e test o f th e validity of a P ro clam atio n m ade u n d e r th e legislation
(Act) is sim ply this— w ould the P roclam ation, if enacted as legislation by the provin­
cial legislature, be w ithin the com petence of th a t body.“

In South Africa, the legislative powers of the Union Parliament are

limited to the extent to which the South Africa Act contains ‘entrenched’
provisions. Therefore, the courts can control delegated legislation on
the same grounds that the enabling legislation must not be inconsistent
with the constitution and that subordinate legislation m ust not violate a
constitutional provision. This is clear from the judicial statement in
R ex V. N gnbane\ which we noted earlier.

In the U.S.A. also rules made under delegated authority have been
invalidated on the above two grounds. Thus in Panama Refining Co. v
Ryan^, certain laws made by the President were struck down by the Supreme
Court because the enabling statute was itself unconstitutional. In
Chicago R.l. & P. Ry. Co. v. U.S:^ a regulation was declared ultra vires
being in contravention of provisions of the Federal Constitution. The
regulation required compensation to be paid by one rail road common
carrier to another for the use o f cars belonging to another carrier, but
exempted short line roads from paying the compensation in certain cases.
The Supreme Court held that the regulation was so arbitrary and unreason­
able as to become an infringement upon the rights o f ownership and was in
violation of the due process o f law.

In India the first of the above two tests was applied in Chiniamanrao
V. State o f Madhya Pradesh,^ where* a State Act which authorised the
Deputy Commissioner to impose a total prohibition of bidi-making in
some areas during certain periods was declared idtra vires since it violated
the right to carry on any occupation, trade or businessguaranteed by^Art.

1- Re. Sask, Moratoriuni Legislation, (1951) 4 D .L .R . 599. a t 652-53.

2- (1952) SA LR 21 (A .D .).
3- (1934) 293 U .S . 388-44S.
4- 284 U .S . 80.
5- 1950 S .C .J. 571; A IR 1951 S.C . IIS .
 125

1 9 (l)(g ) of the Constitution. Consequently, the order issued under the’

Act was also held invalid. Again, in Tan Bug Taim v. Collector o f Bombay,^
the Central Legislature authorised the government to make rules for re­
quisition of immovable property—a subject which was not within the legis­
lative field of the legislature. It was held that the rules made under the
provision were void.

As to the second test namely, that subordinate legislation must noi

be inconsistent with the Constitution, it was argued before the Supreme
C ourt in Narendra Kumar v. Union o f India^ that if the enabling provisions
of a statute were accepted as valid, rules made thereunder could not be
challenged as being unconstitutional. The court rejected the argument and
referring to the words ‘in accordance with the provisions of the Articles of
the Constitution’ said:
Such words have to be read by necessary im plication in every provision and every
law m ade by the P a rlia m en t on any day after the C onstitution cam e in to force.

The principle underlying the above observation had already been ap­
plied by the Supreme C ourt in earher decisions. Thus, Art. 286(2) of the
Constitution, as it stood before its amendment in 1956, granted certain
exemptions in respect of taxes on the sale or purchase of goods. But
rule 5(2)(1) made under the Bombay Sales Tax Act, 1952, imposed certain
conditions on such exemptions. The offending provision was held invalid.»
We have already noted above that in J^aJ Narain v. Chairman, P.A. Committee,
Patna,^ the notification in question was held ultra vires because it effected
a change in the policy of an Act of Parliament which, according to In re
Delhi Laws A ct case, was prohibited by the Constitution. The same question
arose again in Messers Dwarka Prasad Laxm i Narain v. State o f U.P.,°
where Cl. 3(1) of the U.P. Coal Control Order, 1953, issued under S. 3 of
the Essential Supplies (Temporary Powers) Act, 1946, provided that no
person shall “ stock, sell, store for sale or utilise coal for burning bricks
or shall otherwise dispose o f coal in this State except under a licence in
Form ‘A ’ or ‘B’ granted under this Order or in accordance with the pro­
visions of this Order.” Cl. 3(2)(i) laid down that nothing contained in

1- A .I.R . 194C Bom. 21G; see, V. N . Shukla, Judicial Control o f Delegated Legislation in
India, I J .I .L .I . p. 361
2. A .I.R . 1960 S.C. 430.
3- Stale o f Bombay v. UniUd Motors Ltd., 1953 S .C .J. 373; A IR 1953 S.C . 252.
■t- 1954 S .C .J. 661.
•5- A .I.R . 1954 S.C . 224.
 126

sub-cl.(i) “ shall apply to any person or class of persons exempted from

any provision o f the above sub-clause by the State Coal Controller to the
extent of their exception.” The Supreme Court held that cl, 3(2)(b) was
ultra vires because it gave unrestricted power to the State Controller to
make exemptions, and even if he acted arbitrarily from improper motives
there was no check over him and no way of obtaining redress. Such a
power was violative o f the freedom of trade and business guaranteed under
Art. 19(l)(g) and could not be justified as a reasonable restriction under
cl. (6) of the same Article.i

Tn Sheo Shanker v. M.P. State-, the court had to consider whether the
enabling Act also became invalid if a rule made under it would be found
to be ultra vires on the ground of its violating some provisions of the
Constitution. The majority held that only the offending rule, and not the
Act was to be rejected. In the State o f Bombay v. United Motors^ while the
Bombay Sales Tax Act was held wholly intra vires, rule 5 (2) made under
the Act was held invalid being in conflict with Art. 286 of the Constitution.
The same principle was affirmed in Madhubhai Amathalal Gandhi v. Union
o f India^ and Narendra Kumar v. Union o f India/'’

3. Unreasonableness

Subordinate legislation emanating from local authorities (e.g., a muni­

cipal bye-law) must be reasonable in order to be held valid by the courts.
The rule is based on a presumed intention of the legislature th at while con­
ferring on such bodies power to make laws, it did not authorise them to
make unreasonable provisions. In a leading English case on the subject
Kruse v. Johnson, Lord Russell said:^

In this ease cl. 4(3) of the Control O rder was also held void as imposing an u n ­
reasonable restriction upon the freedom of trade a n d business guaranteed under
.^rt. 1 9 (l)(g ) of the C onstitution and not coming w ithin the protection afforded by
cl. 6 o f the A rt. F or o th er instances of subordinate legislation held ullra vires
on constitutional grounds, see R . M . Seshadri v. Disi. Magistrate, Tanjore, A .I.R . l9o4
S.C. 747; R, M . D . Chamarbaughwalla v. Union o f India, A .I.R . 1957 S.C. 28; R . J .
Singh V . Electric Inspector, A .I.R . 1960 All. 87; U.P. S. M . Sangh v. U.P., A .I.R . 1960
All. 45; Bidya Shushan Mahapatra v. Stale, A .I.R . I9 6 0 Orissa 08,
A .I.R . 1951 N ag. 58.
A .I.R . 1953 S.C . 252.
A .I.R . 1961 S .C . 21.
A .I.R . 1900 S.C . 430.
(189S) 2 Q..B. 91 a t pp. 99-100.
 127

If, for instance, they w ere found to be p a rtial a n d u n e q u al in th e ir o p e ratio n as b e t­

w een different classcs; if they were m anifestly unjust; if they disclosed b a d fa ith ; if
ihey involved such oppressive or g ra tu ito u s interference w ith the rights of those su b ­
ject to them as could find n o justification in the m inds of reasonable m en, the court
m ight well say, ‘P a rlia m en t never intended to give a u th o rity to m ake such rules; thev
are unreasonable a n d ultra vim .

No implied restriction ib, however read, by the courts when legislative

power is conferred on a government department and, consequently, exe­
cutive legislation is not subject to the requirement of reasonableness.
In such a type o f legislation, the arbiter is the m inister himself who is
responsible to Parliam ent.i In Sparks v. Edward Ash Ltd.^ and Taylor
V. Brighton Borough Council,^ the court refused to examine the validity of
the departmental regulations on the ground of unreasonableness.

In Australia, the courts do not recognise ‘unreasonableness’ as a ground

for challenging the validity of statutory regulations.^

The courts in South Africa require all subordinate legislation to be

reasonable irrespective of whether it is made by a government department
or a municipality or any other local authority. The basis for holding
unreasonable statutory regulations invalid in that country is the pre­
sumed intention of the Parliament that it does not authorise the making
o f unreasonable laws. The authority for such presumed intention has been
found in the passage from the English case Kruse v. Johnson^. Though in
its parent country this decision has been held to be inapplicable to depart­
mental legislation, in South Africa it has been used by the courts to con­
trol all types o f subordinate legislation. According to Kruse v. Johnson,
unreasonableness covers partiality between classes, manifest injustice, bad
faith, and oppressive or gratuitous interference with rights. All these

1. (1943) K.B. 223 a t 229-30. I t may, however, be pointed o u t th a t all su b o rd in att

legislation is not m ade by M inister, n o r all subordinate legislation is laid before P a r­
liam ent. T his explanation is, therefore, not applicable to rules m ade by authorities
other th an m inistries and to rules th a t are not laid before P arliam ent.
2- (1943) K.B. 223.
3. (1947) K .B . 736,
t. L athan, C .J., in Victorian Chamber o f Manufacturers v. The Commonwealth, 67 C .L .R . 413
(1943); D ixon, J . , in King Get Clothing Co. Proprietary Ltd. v. The Commonwealth, 71
C .L .R . 184 (1945).
5- (1898) 2 Q .B . 91.
 128

grounds have been approved by the South African courts for testing the
reasonableness of executive regulations.^

Regulation 179 of the Mines and Works Regulations provided that

in Transval and Orange Free Provinces certain specified jobs of shiftmen
should be held only by white men. In Rex v. Hildwick-Smith,^ the court
held that the regulation discriminated against coloured persons by ex­
cluding them from certain forms o f employment on the ground o f their
colour, and as no power was conferred either in express terms or by neces­
sary implication to make such a discrimination, the regulation was ultra
vires the enabling Act.

This was approved by the South African Supreme C ourt in Minister

o f Posts and Telegraphs v. Rasool, where Stratford, A. C. J., observed^
that an enabling Act might not be construed to confer the power to do un­
reasonable things, unless such power was specifically given.

In R ex V. Abdurahman,* the court has reiterated the view that an

unreasonable regulation will be ultra vires.

In the U .K ., the justification for excluding departmental legislation

from the test o f reasonableness has been based, as we have seen above,*'
on the Minister’s responsibility to Parliament. In that country the Par­
liament is representative of all the inhabitants in general and may well
therefore be depended upon for preventing any departmental legislation
in case it is unreasonable. But in South Africa, as is well known, the
Parliament repreknts only a small section of the inhabitants of the country,
namely, the Whites, and the vast majority o f the population consisting of
the coloured people have no representation there. The idea of ministerial
responsibility, therefore, could afford little justification in South Africa
for relieving the departmental legislation from the test of reasonableness.
The courts o f that country seemed to have realised this and deliberately
extended the principle of Kruse v. Johnson to statutory regulations in the

1- Rex V. Abdurahman, 1950(3) S .A .L .R . J36 (A.D.) a t 143. See also, Ellison K ahn,
The British Commonwealth, Vol. 5 (1960), p. 189; Caney, Statute Law andSubordinate
Legislation, 1957, pp. 109-110: M ay, The South African Constitution, 1955, p. 305.
2- 1924 T . P. D. 69.
3- 1934 A .D . M7 a t 173.
4- 1950(3) S .A .L .R . 136 (A .D .) at 143 and 147-8.
5- In Sparks v Edward Ash Ltd., (1943) K .B . 223 a t 229-30.
 129

interests o f justice. The judicial approach on this subject can be seen from
the following remarks o f a retired judge of the Natal Provincial Division
of the South African Supreme Court, L. R. Caney. Referring to the said
decision, he says;i

In o u r country, however, wliere racial conflicts a n d colour consciousness a b o u n d a n d

w here by fa r the m ajority of th e p opulation is not only illiterate b u t also has the most
m eagre, a n d often n o p a r t in the process o f go v ern m en t (n a tio n al, provincial a n d
local), the courts should be read y to bear th e full m easure o f th e b u rd e n o f deciding
upon the reasonableness. . . o f sub o rd in ate legislation, for the protection o f m inorities
a n d also of th e politically in articu late , a n d in th e in te restj of ju stic e .’

In the U.S.A. unreasonableness of a statutory regulation would

render it invalid as it will be hit by the ‘due process of law’ clause of the
5th or 14th Amendment of the Constitution.3 N o distinction is made in
this respect between executive legislation and bye-laws. “Just as the
Ordinances of a municipal corporation must be reasonable to stand up
under the delegations o f the municipal charter”, writes Hart,^ “ so must
administrative regulations be reasonable to be valid.”

In Pacific States Box and Basket Co., v. White^ and, Manhattan

General Equipment Co., v. Commissioner^ certain regulations were attacked
as being unreasonable. In both the cases the Supreme C ourt found that
the regulations were not unreasonable, but had they been so the court
was prepared to declare them ultra vires.

In India, unreasonable piece of delegated legislation may be hit by the

Constitution, as for example, under Art. 19 which guarantees seven free­
doms and allows the State to impose only reasonable restrictions upon those
freedoms on certain grounds specified in the article, any bye-law or a
statutory regulation shall be ultra vires the Constitution if it unreasonably
restricts those freedoms.

1- Statute Law and Subordinate Legislation, 1957, p. 106,

2- In Sinovich v. Hercules Municipal Council (1946) A .D . 783 it was held by a m ajority th at
where an enabling A ct confers a specific power and the subordinate legislation does
the same w h a t was authorised, the question of reasonableness is ruled out. See also
Rex V . Canestra, (1951), 2 S .A .L .R . 317, (A.D.)
3- Sec also, Schw artz, Introduction toAmerican Administrative Law, 1958, pp. 73-74.
4- An Introduction to Administrative Law, 1950, p . 331.
0- 296 U .S . 176 (ld 3 5 ).
6- 297 U .S . 129 (1935).
 130

The more im portant question is whether the courts in India can

question the reasonableness of subordinate legislation outside the provi­
sions of the Constitution. So far as the reasonableness of local bye-laws
is concerned, the rule laid down by Kruse v. Johnson^ is followed. But
the position o f departmental regulations does not appear to have been
settled in this respect.

The Allahabad High Court has in some cases taken the view that
rules made under statutory authority would be invalid if unreasonable.^
The statements were obiter dicta and were made simply to refer the
position of delegated legislation. No reason was assigned, nor any
authority cited, for the view taken.^ The High Courts of Bombay,'*
Madras^ and M adhya Pradesh,® have however held th at the validity of
statutory rules cannot be questioned on the ground of reasonableness,
because the rules made under statutory authority become part and parcel
of the statute and therefore stand on a different footing from bye-laws,
with the result th at though the latter can be challenged on the ground of
unreasonableness, the former cannot.

It is, however, not clear as to why the statutory rules should be re­
garded as ‘part and parcel o f the statute itself’ so as to put them on a diffe­
rent footing from th at o f municipal bye-laws in respect of reasonableness.
English law makes this distinction because in view o f English courts a minis­
ter responsible to Parliam ent is more trustworthy than a local authority,
and a departm ental legislation is normally laid before Parliam ent subject to
annulm ent by the Houses. O f course, these two conditions exist in India
also and on th at basis the distinction between bye-laws and statutory rules
would appear to be justifiable. But it is interesting to note that the Indian
courts have adopted the English distinction between these two types of
subordinate legislation without committing themselves to the reasons on
which such distinction is made.

1- (1898) 2. Q..B. 91
2- Suiyapal Singh v. U.P. Government, A .I.P .. 1951 All. 674 a t 698j Bhushanlal v. State,
A .I.R . 1952 All. 8C6 a t 870-87J.
3- See aUo, StaU v. M alik Ram, 1961 A .L .J. 224.
4- Mulchand v. Mukund, A .I.R . 1952 Bom. 296. T h e court observed a t p. 297 th a t “ once
the rules a re fram ed, th ey are incorporated in the sta tu te itself a n d become p a r t o f
the statu te, a n d the rules m ust be governed by the sam e principles as the statute
itself. A nd, therefore, although a bye-law m ay be challenged on the ground th a t it
is unreasonable, a statutory rule cannot b e So challenged.”
5- Subbarao v. I. T . Commissioner, A .I.R . 1952 M ad . 127.
6- Banta Singh v. State o f M .P ., A .I.R . 1958 M .P. 193,
 131

4. Bad Faith

It is the settled law in ail countries, under study that legislative Acts
cannot be questioned by the courts on the ground that they have been
obtained by improper motives.^ Once a law passed by a legislature is found
to be within its legislative field, its validity does not depend on
whether good o r bad motives induced its enactment.

There is another rule that when a statutory authority is conferred on

the administration or any other body, it must be exercised in good faith;
otherwise on the proof of bad faith the courts can set aside the adminis­
trative action even though it does not transgress the express limits of the
power.2 Now, can the courts examine, on the ground o f bad faith, the
validity of laws that are passed not by a legislature but by its delegate?
The answer is not the same for all the countries.

In the U.K., Canada, South Africa and India delegated legislation

made by administrative authorities including the executive head, stands
sulyect to the test o f good faith. There are judicial statements to the
effect that on satisfactory evidence regarding malafides o f the delegate
being adduced, his laws can be held invalid. Thus in the U.K., Clauson,
L.J. observed

If, on read in g the O rd e r in Council m aking th e regulation, it seems in fact th a t it

d id not a p p e a r to H is M ajesty to be necessary or expedient for the relevant purposes
to m ake th e re g u la tio n , I agree th a t, o n the face o f th e O rder, it w ould be in­
operative.

In a Canadian appeal before the Privy Council an Order in Council

was attacked as being made with the ulterior motive o f confiscating profits
of a class o f merchants. On the facts o f the case the court could not
decide whether the allegation was true, but it said^ that if there was
‘a cause in which powers entrusted for one purpose are deliberately used
with design of achieving another, itself unauthorised or actually forbidden’,
it was bad faith and a court o f law might intervene.

1- Leev. Bude and Torrington J n Ry. Co., 24 L T R (1871) p. 827 a t p. 829; Victorian
Stevedoring etc. and Meakes v. Dignan (1932) 46 C .L .R . 73 Gqjapati v.State o f Orissa,
A .I.R . 1953 S .C .3 7 5 a t p. 379.
2- See, Municipal Council o f Sydney v. Champbell, (1925) A .C . 338.
3- Rex V . Comptroller General o f Patents, (1941) 2 K .B . 306 a t p . 316.
AtI.-Cen.Jor Canada v. Hallet & Carey Ltd., (1952) A .C . 427 a t p. 444.
 132

The same view was held in South Africai and India. In Narendra
Kumar v. Union o f India^ the validity of Non-ferrous M etal C ontrol Order,
1958 was in question. Supposing that the order would have been invalid
if it were made malafide, the Supreme C ourt stated;3

M alafides h ave n o t been suggested a n d we a re proceeding o n the assum ption th a t the

C entral G overnm ent w as honestly o f opinion th a t it w as necessary and expedient to
m ake an order providing for regulation a n d prohibition o f the supply and d istribu­
tion of im ported co p p er and trad e a n d com m erce therein.

But in Australia the rule against enquiry into motives behind Acts
-of a legislature has been extended to apply partly to delegated legislation
also. By a unanimous opinion in Dignan's* case, the Australian High
Court applied this rule to regulations made by the Governor-General (on
advice of a Minister) and refused to take into consideration the motives
behind such regulations for examining their vahdity. G avan Duff, C.J.
and Stark J., stated
I f P arliam ent, how ever, placed in the hands o f the E xecutive the pow er of m aking
ih e R egulations the subject o f attack in these proceedings, and th a t power has been
abused or m isused, the only rem edy is by political action, and n o t by appeal to the
courts o f law.

The justification for excluding motives from judicial examination was

based on the legislative character of the function performed by the Gover-
nor-General in. m aking the provisions. In the words of Rich, J.®
. . . .th e pow er given by the delegation is so akin to th a t o f legislation th a t the re ­
asons a n d m otives of the donee, w hether a p p ea rin g ex facie th e Regulations or
aliunde, cannot affect their validity.

But in Arthur Yates & Co. Ptv. Ltd.v. Vegetable Seeds Committee,’’ a
distinction was made between delegated legislation issued by King or his

1- See, Reddy V . Durban Corporation, (1954) 4 S.A .L .R . 304 a t 306 (N .P.D .); See also,
Caney, op. cit., pp. 108-10.
2- 1960 S .C .J. 214.
3- Ibid, a t p. 217. In King Emperor v. Benorilal Sarma, (1945) A .C . 14, Viscount Simon,
L .C ., observed a t p . 21 : “ Assuming th a t h e (the G overnor-G eneral) acts bonafide
and in accordance w ith his statutory powers, it can n o t rest w ith th e courts to ch al­
lenge his view th a t the emergency e.'cists.” A n inference m ay be draw n from this
observation th a t courts m ay question the malafide exercise of pow er.
4- Victorian Stevendoring etc. & Meakes v. Dignan, (1932) 46 C .L .R . 73.
5- Ibid, a t 84.
6- Ibid, a t 87.
7- (1945) 72 C .L .R . 37.
 133

representative acting on tiie advice of a responsible minister and that

issued by ‘a domestic, executive or administrative body.’ The former
could not, the court affirmed, be questioned on the ground of bad faith
but the latter could be so questioned since it was not, in the opinion of the
court, an act o f a pure legislative body. Notwithstanding any legislative
clement that might be contained in delegated legislation made by an
‘administrative’ body, the provisions were not, according to the decision,
a real act of legislation and were, therefore, not protected by the rule against
enquiry into motives. In the present case it was alleged that the Vegetable
Seeds Committee, constituted tinder defence powers, had issued a direction
under delegated authority prohibiting sales of certain seeds by merchants
in order to compel them to purchase the committee’s own inferior stock
o f seeds which it could n o t otherwise dispose of. The court held that this
was a relevant ground for examining the validity of the direction.

In America, the rule excluding enquiry into good faith of a legislature

is applied to all subordinate legislative bodies also. Whatever be the
status of the law making authority, whether a legislature or a
municipal body, it is to be conclusively presumed th at its legislative act
has been induced by proper motives.^

But the above rule protects from enquiry into good faith not all
acts of a legislative body bu t only such of its acts which are o f a legislative
character. In a case, the court disallowed a municipal resolution which
was obtained by corrupt means, as the resolution constituted part of
the administrative duties o f the council and was not an exercise o f powers
of “ sovereignty.”

The Australian and American views depart from the general prin­
ciple, followed in the U .K ., Canada, South Africa and India, that every
exercise of delegated legislative power by an executive authority is, for
the purpose of enquiry into motives, an administrative action (as against
that o f a legislature) and so is subject to the test o f good faith. In
Australia, statutory regulations framed by Governor-General on the

“ A nd the sam e presum ption th a t legislative action has been advised and adopted on
adequate inform ation and under the influence of correct motives vv^ill be applied”,
writes Cooley, “ to the discretionary action of m unicipal bodies, a n d of the state
legislature, and will preclude, in the one case as in th e other, all collateral attack .”
T h e a uthor cites num erous decisions of state courts w here this proposition was upheld.
Cooley, Constitutional Limitations, (1927) p p . 451-55.
 134

advice of a responsible minister, are regarded as legislative for this pur­

pose but those made by subordinate authorities are not so. In the U.S.A.,
though every legislative act of a delegate is protected by the rule against
enquiry into motives, some of his poceedings can be held as administrative.
It is clear that a distinction between ‘legislative’ and ‘administrative’
actions has been deemed necessary in all these countries for the purpose of
enquiry into the bonafides of law-making authorities, Such distinction is
rather fine in the field of delegated legislation where almost every act of the
delegate is, in a sense, legislative and, in another sense, administrative. It
is legislative because the act is an exercise of legislative power and it is
administrative because the action is taken by an administrative machinery.
Where the line of this division should be drawn remains, therefore, a matter
of opinion.

5. Sub-delegation

A general rule drawn from the law of agency that a delegate cannot
re-delegate, is expressed in the maxim delegatus non protest delegare. The
maxim does not apply to the legislature under a written constitution!.
Does, then, this maxim apply to the delegate on whom the legislature has
conferred a legislative power? W here-the legislature itself authorises its
delegate to sub-delegate his power there arises little difficulty, but it has to
be seen what the courts have said in situations where there is no such
express authorisation.

In the U.K. there seems to be no decision on the question whether

sub-delegation of a legislative power without express provision for it is
permissible.2 The above maxim was, of course, applied in Allingham v.
Minister o f Agriculture'^, where a County War Agricultural Committee
delegated to its executive officer its power to give discretion with respect to
the use of land for agricultural purposes. This power was conferred on the
committee by the M inister of Agriculture under the Defence Regulations,
1939. A direction issued by the committee’s executive officer was held
invalid on the ground that the regulations were to be construed as .re­
quiring the committee itself to issue the direction and th at the commhtee
had no power to delegate its own delegated authority. But since the sub-

1• Except perhaps in the U .S.A .

2- Allen, Law aiid Orders, 2nd ed., pp. '705, '209.
3- (1948) 1 All E .R . 780.
 135

delegated power was not for issuing general directions but to issue specific
ones to individual farmers, it was a delegation of taking, what should nor­
mally be called, an administrative action, and not of making laws. Pro­
fessor de Smithi regards this decision as ‘settled law’ that the maxim delegatus
non potest delegare applies to regulations made by Ministers of the Crown.
But A lle n 2 disagrees with him saying th at the instrument involved in the
case was not a regulation but a ‘specific direction’. However, if a sub-dele­
gated power to take an administrative action is governed by the rule of
non-sub-delegation, there is greater justification, it is suggested, for apply­
ing the rule to sub-delegation of a legislative power since ‘of all
powers th at can be put in commission, none can possibly be more im portant
than the legislative because it has the largest range and can produce the most
far-reaching consequences’.^
There is, in fact, a judicial dictum which suggests that sub-delegation
of a legislative power without express authority from the empovvering
statute or instrument to do so, would be invalid. In Jackson, Stansfield
& Sons V. Butterworth*, it was held by the C ourt 0 f Appeal
that the plaintiff could not recover from the defendant payment for work
done in repairing certain garages, because at the time when the work was
done, there was no written licence to do the same within the meaning of
Regulation 56A(2) o f the Defence (General) Regulations, 1939. The
power to grant the licence was conferred by the Regulation on the Minister
of W orks who delegated it to clerks or other duly appointed officers of
local authorities in circulars issued by the Ministry o f Health. Referring
to such sub-delegation, Scott L.J., made the following statement,^

T h e circulars are, in character, m ainly adm inistrative, b u t I th in k th a t in some re­

spects they go beyond adm inistration a n d become legislative.........T h e delegation to
another M inister or to local authorities o f powers of ad m inistration a n d discretion
was n o t w ithin the a uthority o f th e M inister o f W orks. Delegatus non potest, delegare
b u t the in tention to delegate pow er a n d discretion to the local au th o ritie s is cigar.
T h e m ethod chosen was convenient and desirable, b u t the pow er so to legislate was,
unfortunately not there.

But it is also realised in the U.K . that if a power to make laws is given
to a minister in general terms, it will be impossible for him to personally

1- Sub delegation and Circulars, 1948 (12) M .L .R . 37.

2- Allen, Law and Orders, p. 209.
3- Ibid, a t 209.
4- (1048) 2 A ll E .R , 538.
5- Ibid, a t 563, 5Cr>.
 136

enact all the laws required under the power. Professor Griffith, therefore,
suggests that in such cases, if no express authority to sub-delegate is given
to the minister, an implied one should be read in the empowering provisions
I f the M inister is em pow ered to m ake subordinate legislation, it is suggested th a t his
pow er to authorise him self or o th e rs___ to m ake sub-delegated legislation depends
on the generality of the sta tu te and the e x ten t to w hich th e powers to legislate are
there defined. I f the sta tu te is so widely phrased th a t tw o o r m ore “ tiers” of sub­
ordinate legislation a re necessary to reduce it to specialised rules on w hich action
can be based, then it m ay be th a t the courts will im ply the power So m ake the
necessary sub-delegated legislation.

In a significant decision, In the matter o f a Reference as to the Che­

mical Regulations,^ the Canadian Supreme Court adopted a view similar
to that expressed by Professor Griffith. One of the questions the court
had to consider in this case was whether the regulations in relation to
chemicals, framed under the W ar Measures Act, 1927, were ultra vires the
Governor-General-in-Council since by these regulations he sub-delegated
to certain agencies power to make orders, rules and bye-laws of which
no express authority was given by the Act. The Governor-General-in-
Council was authorised to make ‘Such orders and regulations as he
may by reason o f the existence of real or apprehended war, invasion or
insurrection deem necessary or advisable for the security, defence, peace,
order and welfare o f C a n a d a . T h e sub-delegation was unanimously
upheld by the court in view of the very wide power conferred on the
Governor-General-in-Council from which the judges inferred that the
authority to sub-delegate was impliedly given by the Act. Some of the
judges also discussed the rule of non-subdelegation but excluded the
case from its application.* W hat appears to have weighed with the

1- Griffith and Street, Principles o f Administrative Law, 2nd ed., p. 60.

2- (1943) S .C .R . 1.
3* S. 3.
4- Duff, C .J ., thought th a t there was nothing in the words of the empowering provision
w hich precluded sub-delegation and th a t ex facie it was w ithin the language there
employed. T h e legislative pow er conferred by the A ct was, according to him , ‘nothing
less th an a plenary discretion’ and the statute was ‘of the high>.st p o litick n a tu re .’
T o R infret J . , the authority delegated to Governor-General-in-Council was of
‘plenary powers of legislation as large and of the same nature as those of Parliam ent
itself’ and regarding the m axim ‘delegatus non potest delegare’ his Lordship said th a t it
h a d no reference to delegated legislation. N or was the Governor-General-in-Council,
w ithin the am bit of the Act, a delegate o f Parliam ent, according to the learned judge.
K erw in and H udson, J J . seemed to be of the opinion th at the above m axim would
apply to delegated legislation, b u t because of the wide power conferred on the
Governor-General-in-Council and of the fact th at the statute was a wartim e legislation
the m axim was not applicable to the present case.
 137

judges was not only the generality o f the power conferred on the
Governor-General-in-Council but also the special character of the Act
which was intended to meet war exigencies.

Recently, in A. G. o f Canada v. Brent,^ the Supreme Court invali­

dated a sub-delegation o f legislative power by the Governor-General-in-
Council, under regulations which prohibited admissions where, in the
opinion of a Special Enquiry Officer, such person should not be admitted
by reason of the enumerated list of matters which were contained in
S. 61 of the relevant Act. In a brief judgment the court declared the
provision ultra vires sa y in g ;2

P arliam en t had in contem plation the enactm ent o f such regulations relev an t to the
nam ed subject m atters or som e o f them , as in H is Excellency in C ouncil’s own
opinion were advisable and n o t a w ide divergence of rules a n d opinions ever changing
according to the individual notions of Im m igration OfficcrS a n d Special In q u iry
Officers. T h ere is no pow er in G ovcrnor-G encral-in-G ouncil to delegate his authority
to such officers.

These two decisions show that in Canada sub-delegat/on of a legisla­

tive power is not precluded from the appUcation of the maxim delegatus
non potest delegare, but if the delegate has been given what the courts may
regard as ‘plenary’ power of legislation, an implied authority to sub-dele­
gate may be inferred.3

Two Australian cases relating to sub-delegation of legislative powers

■ are also relevant in this connection. The m atter involved in both of
them was what may be described as ‘conditional sub-delegated-legislation’,
i.e. laws made by the delegate to come into operation on a condition
which is left to be determined by a sub-delegate. In Welsbach Light
Co. V.Commonwealth,*: the Governor-General was authorised by the
Trading with the Enemy Act, 1914, to prohibit by proclam ation any
act or transaction in relation to trade with the enemy. The Governor-
General prohibited all transactions with a company which the
Attorney-General declared to be, in his opinion, of a nature described
in the proclamation. The proclamation was attacked as delegating
to the Attorney-General the power of finally determining whether

1- (1956) S .C .R . 318.
2- Ibid, a t 321.
3- Sec Willis, Delegatus non petest delegare, 21, Can. Bar Rev. (1943) 257.
i- (1916) 22 C .L .R . 268.
 138

a particular company was within the prohibition or not. The High

Court of Australia upholding the proclamation said that no delega­
tion of legislative power was involved. Griffith, C. J. thoughti that this
type of delegation was ‘very common' and Isaac, J. expressed^ the view
th at what was given was not a legislative but ‘a declaratory power’.
Higgins, J. applied^ to the case the argument which was employed by the
Privy Council in Russell v. The Queen * and said, “ the Attorney-General
does not legislate; Parliament legislates conditionally on the declaration
of the Attorney-General.”

In Croft V. Rose,° the Governor-in-Council was authorised to make

regulations fixing the maximum speed for driving in any specified locality.
The regulation made for this purpose fixed the speed limit as 30 m.p.h.
for the areas in which there was provision for the lighting ‘by means of
street lighting’ or which were defined ‘by means o f a restriction sign and a
de-restriction sign’. The provision of lighting and signs was to be made
by authorities other than the government. It was contended that the
Governor-in- Council in leaving to other persons to determine the areas
in which the speed limit was to operate, sub-delegated his legislative power
for which there was no express authority in the enabling Act. The court
held that there was no delegation of legislative power since the Governor-
in-Council had hiniself chosen some criteria and descriptions specified in
the regulation. It was observed:®
T h e most th a t could be said in favour o f delegation was th a t the G o v ernor-in
Council h a d placed in the han d s of o th er persons th a n him self th e pow er to d e te r­
m ine w hen a n d w here th e provisions o f the regulations should operate. B ut this
does not a m o u n t to delegation th a t has, as we un d erstan d the m a tte r, e v er been
considered o b je c tio n a b le .. . .

Thus in Australia, if a legislative delegate authorises others to bring

into operation the provisions of lawmade by thedelegate himself, the courts
will not regard it as sub-(Jelegation of a legislative power although on
the permissibility o f sub-delegation as such, authoritative judicial pronounce­
ment is still awaited.

1 ■ Ibid, at 275.
2- Ibid, at283-S 4.
3- Ibid, at 283-284.
4-(1882) 7 A .C . 829 at 835,
5- (19')7) A .L .R . 148.
f>- rtirf, a t 151..
 139

Regarding South Africa, writes Caney,i “ unless the enabling legis­

lation authorises, expreessly or by necessary implication, a power of dele­
gation on the part of the subordinate legislature, the latter cannot dele­
gate to an. official or other persons the power conferred upon it.” But the
decisions^ cited by him in support of this proposition relate to conferring
upon a sub-delegate the authority to take what may be regarded as ad­
ministrative action pursuant to a legislative power. In this respect, the
South African courts have held^ that a subordinate legislative body,
whether it be a government department or a local authority, cannot so
make its laws as to give to an official an unfettered authority to decide what
may, and what may not, be done under those laws. If it does so, the
provisions may be interpreted to be oppressive and gratuitaus interference
with the rights of the persons affected thereby and will be hit by the rule
laid down in Kruse v. Johnson.^ Thus, on this ground a government regu­
lation was held invalid in Natal Organic Industries (Pty.) Ltd. v. Union
Government,^ because it conferred an unlimited discretion on an official
by providing that no person should use certain material in -the manufacture
of yeast unless he was authorised by the said official to do so. But, as already
pointed out, such decisions relating to taking of administrative action
do not throw light on the problem whether or nrot a legislative delegate
can, without an express authority from the empowering body in
that behalf, sub-delegate his power to make laws.

Most o f the American judicial decisions as well as juristic

writings relating to sub-delegation deal with re-delegation of executive
or administrative power and not with that of legislative power delegated by
Congress to the President or to administrative agencies. An explanation for
this may be found in the following observation of Davis:®

R ules and regulations are alm ost alwaj-s issued in the nam es of agency heads, who
custom arily know a t least som ething of the final p ro d u c t a n d ap p ro v e it. T h e result
is th a t sub-delegation concerning rulem aking seldom comes to court.

1 ' Stiilule Law and Subordinate Legislation, 19o7, p. I l l ,

2- A few of them arc : Arnestain v. Durban Corp., 1953 (1) S .A .L .R . 279 a t p. 297 (A .D .);
Wilson V . S. A . Rlys. and Harbours, IQiCt N .P .D . 775 a t 768, 7G9; Pretoria Cily Council
V. S. A. Organ Builders Ltd., 1953, (3) S .A .L .R . 400 at p .400.
3- Ibid.
+ ■ (1898) 2 Q^.B. 91. All the fo u r tests of validity of byelaws laid dow n by Lord Russell
in this decision arc also applied to departm ental legislation. See p. 330, supra.
5- Natal Organic Industries (Pyt.) Ltd., v. Union Government, 1935, N .P .D . 701 at 713-15.
0- Davis, Administrative Law (T ext), 1959, ‘p. 174.
 140

In 1937 H arti expressed the view that with the exception of “ such
concertizing ordinances and sub-legislative powers which directly affect major
personal and property interests. . . . the President may (sub) delegate his
ordinance making powers to the heads of the appropriate departments,
whose acts in such cases are in law his own.” But he did not support the
exception pointed out by him with any judicial decision. Referring to this
statement, Schubert^ commented in 1956 that “the exception is probably
no t warranted” , though he too did not quote any judicial authority for his
own opinion.

In the following two decisions of lower courts, however, sub-delega-

tion of legislative powers was held permissible.

In States v. Bareiw^ the relevant statute conferred the power to make

regulations concerning exports on the President and provided that unless
he otherwise directed his functions under the Act they should be performed
b> ihe Board o f Economic Welfare. The board sub-delegated the power
to its executive director who further sub-delegated it to his assistant.
The sub-delegation went still further and passed through a few more officials
the last of whom made the regulation for the violation o f which the defen­
dant was indicated in the present case. The various sub-delegations were
upheld by the court which stated:^

W e believe there is n o th in g invalid a bout the delegation and re-delegation of a u t­

hority to act. H eads o f G overnm ent D ep artm en ts a n d Boards m ust a ct, a n d presu­
m ably have been actin g , tim e o u t of m in d , vicariously in the perform ance of their
routine business. I t is im possible for them to do o th erw ise'a n d dispose o f the large
a m o u n t o f w ork. B ut th ey still rem ain , as d id the V ice-P resident in th e present case,
responsible for the acts of their subordinates.

In Shreveport Engraving Co. v. U.S.^ the Shreveport Engraving Com­

pany was convicted for violations of conservation orders and directions
issued under the W ar Powers Act because it used copper in excess of its
allowable quota. It was contended that the orders and directives in question
were issued neither by the President nor by the Chairman of the W ar Pro-

1 - The exercise o f Rule M aking Power, President's Committee on Administrative Manage­

ment, Report with Special Studies, (1937), p. 188.
2- The Executive Rule M aking Power, Journal o f Public Law, (1935), p . 188.
3- 50 F. Suppl. 520 (D .C . M ad. 1913).
■t- Ibid, a t 527-28.
5- U 3 F. 2d. 222 (1944).
 141

duction Board, but by a subordinate official to whom the Chairman

purported to delegate the powers conferred by the Act upon the President,
and by the President upon him and they were, therefore completely void
for want o f authority. The contention was rejected as the court found that
the Acts had expressly authorised the President to sub-delegate and the
President had also expressly authorised the Chairman o f the W ar Produc­
tion Board to sub-delegate the powers in question. But even if there were
no express provision for^ the sub-delegation, the court was prepared to
read an implied authority. The court said:^

These express provm ons aside, we*think it is too clear for d e b ate th a t Congress, in
conferring the powers in quesjion, d id not expect or in ten d th a t th e P resident should
execute all of the trem endous powers and in person discharge all the vast duties im ­
posed upon h im a n d th a t if there h a d been no express a u th o rity to "act by deputies
th a t au th o rity w ould h a v e been im pb'ed.

From these two decisions it appears that the necessity, referred to

by Professor Griffith, for reading an implied authority to sub-f3elegate legis
lative power, has already been recognised by the American courts.

The Supreme C ourt of India, in Ganpati Singh v. State o f Ajmer,-

invalidated certain statutory rules because they am ounted to sub-delegation
of a legislative power for which there was no express authority in the enabling
provisions. The Ajmer Laws Regulation (III of 1877) empowered the
Chief Commissioner to make rules about the maintenance of W atch and
W ard and about the establishment of a proper system of conservancy and
sanitation at fairs and other large public assemblies. The rules made under
this power prohibited the holding o f a fair except under a perm it issued by
the District M agistrate and before issuing such perm it the District Magistrate
was enjoined to satisfy that the applicant was in a position to establish a
proper system of sanitation and watch and ward at the fair. Tn a brief
judgm ent the court observed:®

T h e rules em pow er D istrict M agistrate to m ake his own system a n d see th a t it was
observed. B ut the R egulation confers this power on the C h ief C om m issioner and not
on the D istrict M agistrate, therefore the action of the C h ief C om m issioner in d elegat­
ing this atu h o rity to the D istrict M agistrate is ultra vires.

1• Ibid, a t 2'2G.
1955 s . c . j . no
:i- Ihid, at V2\.
 142

The facts of this case are a little peculiar because the object of the
regulation of maintaining a proper system of sanitation etc. was attempted
to be achieved through the requirement o f personal satisfaction of the Dis­
trict Magistrate in individual cases and not by asking him to prescribe a
proper system to which the fair-holders might conform. This point was
touched by the Supreme C ourt but was not elucidated. Some High Court
decisions have dealt with the problem of sub-delegation at a greater length.

In State v. Ameer Chand,^ the Central Government having been

authorised by the relevant statute, delegated to the Punjab Provincial
Government, its authority to make ordet^ relating to essential commodi­
ties which again authorised the District M agistrates and certain
other officers to make orders directing certain persons to declare their
stocks of food grains in the prescribed manner. It was held that the Provinci­
al Government had no authority to subdelegate the power which was itself
delegated to it. The maxim delegatus non potest delegare and the English
case Allingham v. Minister o f Agriculture- were relied upon. The court
was also of the view that the order issued in this case by an officer requir­
ing certain persons to submit certain returns and declaring that legal action
would be taken against them who would fail to comply with the provisions
thereof, was clearly an order of legislative character and could not be
issued under the sub-delegated authority.

Referring to the above decision, the Bombay Higli C ourt disputed,

in a similar case^ brought before it, whether the order issued by the officer
was legislative in nature. The view adopted by the court was that
since the order was issued to each individual m erchant concerned,
it was an ex^ :utive order and would not, therefore, be hit by the rule of
non-delegatioTi of delegated authority, but it never denied that sub-delegat­
ion of a legislatrtve power without an express authority from the empower­
ing body in th at behalf would be bad.

Again, in Pritam Bus Ltd. v. State o f Punjab,'^ the Provincial Govern­

ment redelegat^d its delegated authority to prescribe uniforms for bus
drivers and coiiductors to the Regional Transport Authority. The court
took the view tlv\t the power delegated to the Regional Transport Authority

1- I.L .R . 10.53 (Punjab) 80.

(1948) 1 A i y ^ . R . 780.
3- Thakur Chaturbtyhj v. Stateo f Bombay, A .I.R . 1959 Bom. 511
I- A .I.R . 19-17 P unjab 145.
 143

was not legislative but executive, and therefore the sub-delegation was not
void. However, the court seemed to be agreeable to the proposition that
if it were a legislative sub-delegation, if would have been invalid.

Thus in India the trend o f the judicial opinion seems to be that the
maxim delegatus non potest delegare would apply to sub-delegation of
legislative power.

B. Procedural Ultra Vires

If before making any subordinate laws the executive is required to

comply with certain procedural preliminary requirem ents prescribed by the
enabling Act or by a general statute such as holding consultation with particular
bodies, or to pubhsh the laws whether in the draft or final forms, or to lay
them before Parliam ent, failure to comply with the same may invalidate the
laws. But non-compliance with a procedural requirement, may not always
invalidate such laws, because there is a well established judicial distinction
between a m andatory and directory provision, and non-compliance with
a directory provision does not invalidate legislation but failure to observe
an imperative provision does. If the relevant statute is silent about the
effect o f non-compliance with a provision, it is not easy to say how one
should determine whether the provision is m andatory or merely directory.^

1• O ne reasonable test suggested in Howard v. Bodington (1877) P .D . 203 i s :

You m ust took to the subj<;ct m atter: consider the im portance of the provision
th at has been disregarded and the relation of th a t provision to the general object
im perative to be secured by the Act; and decide w hether the m a tte r is w hat is called
^ n p e ra tu ie or only directory.
A m ore definite test is to be found in a Privy C ouncil decision given in Montreal
Sheet Railway Co. v. Normandin (1917) A .C . 170. W hen the provisions o f a statute
relate to the perform ance o f a public d u ty a n d the case is such th a t to hold null
a n d void acts done in neglect of this d u ty w ould w ork serious general inconvenience,
or injustice to persons \\'ho have no control over those entrusted w ith the d u ty , and
a t th e sam e tim e w ould n o t prom ote the m ain object o f the L egislature, it has been
th e practice to h old such provisions to be directory only, th e neglect of them , though
punishable, n o t affecting the validity of th e act done.
M ore elaborate rules for this purpose w ere laid dow n by the A ppellate Division of
the South A frican Suprem e C ourt in Sutter v. Sheepera 1032 A .D . 165.
(1) I f a provision is coouched in a negative form it is to be regarded as a per­
em ptory ra th e r th an as directory m andate. T o say th a t no pow er o f a ttorney
shall be accepted b y th e Deeds office unless it com plies w ith certain conditions
ra th e r discloses a n in tention to m ake the condition perem ptory th an directory:
though even such language is n o t conclusive.
(2) I f a provision is couched in positive language, a n d there is no sanction added
 144

1. Effect o f failure to consult

In the U.K. a provision requiring ‘consultation’ before the making

of subordinate laws has, according to Professor Griffith, generally been
regarded as m andatory.i In M ay v. Beattie,^ the Minister of Transport
was authorised by S. 1, sub-sec. 1 and 2, of the London Traffic Act, 1924,
to declare a street a ‘restricted street’ for the purpose of omnibus and to
make regulations. But S. 5 of the Act stipulated that before doing so he
“shall refer the m atter to the Advisory Committee for their advice and
report.” It was argued th at the committee to which a reference was made
in th at case by the M inister was not constituted as required by the Act
and therefore regulations made in pursuance of the reference were invalid
and ultra vires. The court without saying that the validity o f the
regulations could be challenged on that ground did not agree that
the committee was improperly constituted. Again, in Rollo and Another
V. Minister o f Town and Country Planning,^ the question was whether
the Minister, who was required by S.1(1) of the New Towns Act, 1946 to
consult with the local authorities before making an order designating an
area as the site for the proposed new town, did or did not hold the required
consultation. It was contended that what was done by the Minister in the
case was not ‘consultation’ within the meaning of the Act and therefore
the order involved in the case was liable to be quashed. The court
took great pains to show that what the Minister did was consultation
as required by S. 1(1). Presumably, the court was of the view that the
requirement o f consultation was m andatory; otherwise the court could have
disposed o f the case by saying that even if there was no consultation the
validity o f the order was not affected. The following lines quoted with
approval by Bucknil, L.J.,"* from the judgm ent of M orris J. in the court
below, affirm this view:

in case the requisites are n o t carried out, th a n the presum ption is in favour of an
intention to m ake the provisions only directo ry .........
(3) If, w hen we consider the scope and objects of a provision, we find th at its
term s w ould, if carried out, lead to injustice an d even fraud, and if there is ho
explicit statem ent th a t the Act is to be void if the conditions are not complied
with, o r if no sanction is added, then the presum ption is rath e r in favour o f the
provision being directory.
(4) T h e history of legislation will also afford a clue in some cases.
1- Griffith and Street, Principles o f Administrative Law, 2nd ed., p. 107.
(1927) 2 K .B . 353.
3- (194S) 1 All E .R . 43.
i' Ibid, at H ,
 145

T h e h o ld in g o f c onsultation w ith such local a u th o ritie s as a p p e a r to tlie M inister

to b e concerned is, in m y ju d g m e n t, a n im p o rta n t statu to ry obligation. T h e M inister
w ith receptive m in d m ust b y such consultation seek a n d welcom e th e aid a n d advice
w hich those w ith local know ledge m ay be in a position to offer in regard to a p lan
w hich th e M inister has tentatively evolved.

Decisions of the Canadian and Australian courts regarding the effect

of a failure to hold ‘consultation’ are not known. But Driedger thinksi
that the position in Canada would be the same in this respect as in the U.K.

In South Africa, a provision requiring consultation with advisory

bodies before making statutory regulations is regarded as m andatory. It
has been so held in R . v. Mzimitkulu.^ S. 21(3) o f the Natives (U rban
Areas) Consolidation Act, 1945, required th at the Native Advisory Board
or Boards established under the Act should be consulted before certain
regulations were approved by the competent authority. The question
before the court was whether the impugned regulations, which were validly
promulgated after consultation with the existing native advisory board,
became invalid because subsequently in the same municipal area another
native advisory board was established for a separate location and the
new advisory board was not consulted in respect o f those regulations.
The court held th at the regulations in question did not become invalid
but expressed the view that if any such regulations were originally made
without consultation with the existing advisory board, they would have been
invalid.

In the U.S.A., there is a general provision in S. 4 o f the Adminis­

trative Procedure Act, 1946, requiring th at opportunity m ust be given to
interested persons in the process of enacting delegated legislation. Subject
to certain exceptions, general notice^ of proposed rule-making is to be
published in the Federal register; thereafter, the rule-making agency is
required to afford to interested persons an opportunity to participate
in the rule-making through submission of written data, views or
arguments, or in any other manner, with o r w ithout the opportunity
being given to present the same orally. Where “rules are regarded

1- Subordinate Legislation, 38 Can. Bar Review, 1 a t pp. 8-9 (1900).

2- 1956 (3) S .A .L .R . 429 A .D .
3. T h is notice m ust include (1) a statem ent o f the tirtie, place a n d n a tu re o f public rule-
m aking proceedings; (2) reference to the au th o rity u n d e r w hich th e rule is proposed;
a n d (3} either the term s or substance o f the proposed rule o r a description o f the
subject and issues involved.
 146

by statute to be made on the record after opportunity for an agency

hearing,” a much m ore detailed procedure has been prescribed.i
The rules must be adopted* by the agency concerned after considering
all relevant m atter presented jto it and if the rules are substantive, they must
be published not less than 30 days before the date o f their coming into
effect. But this period o f 30 days can be reduced by the agency concerned
on good cause which should be published with the rules.

The above provision requiring notice of proposed rule making lias

been regarded as m andatory. In American Air Transport Inc., et al. v.
Civil Aeronautic Board et al.,^ a District Court enjoined enforcement of
a regulation which was issued ‘without such a hearing as is necessary under
the Administralive Procedure A ct’ and also under the parent Act. There
seems to be napronouncem ent of the Supreme C ourt of the United States
on the effect * failure to give opportunity to interested persons to pre­
sent evidenc^ or written data during the rule-making process.

In IncMa, the Federal Court in Biswanath Khemka v. The King Emperor,^

considered the effect of non-compliance with the provisions of S. 256 of the
Government o f India Act, 1935, requiring consultation between public
authorities before the conferm ent of magisterial or enhanced magisterial
powers on a person. W hen an appointm ent o f a magistrate as Additional
Presidency M agistrate without the required consultation was questioned,
it was held that the requirement to consult was directory and th at the non-
compliance thereof would not render ineffective or inoperative an appoint­
m ent otherwise regularly and validly made. The same view had been
followed by the Supereme C ourt in T. B. Ibrahim v. Regional Transport
Authority^ and State o f U.P. v. M . L. Srivastava^. In the form er case con­
sultation was required before certain routes for public buses were fixed
by Transport Authority and in the latter case, the Public Service Commis­
sion was required to be consulted on all disciplinary matters affecting a
civil servant. In both the cases, the requirement was held to be directory
only.

!• Vide, Ss. 7 a n d 8 o f the A dm inistrative Procedure Act, 1940.

2- 98 F. Supp. 660, 061 (D .C . 1951).
3- 1945 F . L J . 103.
4- 1953 S .C .J. 31.
5- 1958 S .C .J. 150.
 147

The requirement of ‘concurrence’ in contra-distinction to ‘consulta­

tion’, however, has been held to be m andatory by the N agpur High Court
in Radha Krishna v. The StateA In this case, the Central Government, under
authority of S. 4 o f the Essential Supplies (Temporary) Powers Act, 1946,
sub-delegated its power to provide for certain m atters in relation to food
stuffs to the Provincial Government, subject to the condition that before
making an order, concurrence of the Central Governm ent would have to
be obtained. The Provincial Government made an order after obtain­
ing the required concurrence, but later amended it without such con­
currence. It was held that because the condition of obtaining the
concurrence was not fulfilled the amendment of the order was ultra
vires.

2. Effect of failure to publish.

In the U .K . it was decided in Jones v. Robson'^ that sta­

tutory provision which required a notice to be given of making certain
orders in such m anner as the rule-making authority may direct, was
directory only and not a condition precedent for the orders to be effec­
tive. In this case, no statisfactory evidence was adduced of the required
notice in respect of the order in question, nor of any m anner in which the
notice was directed to be issued, but the order was published in accordance
with the Rules Publication Act, 1893. Though the court did not accept
this as the required notice, it held that the order was valid and binding.

But later in Johnson v. Sargent and Sons,^ it was held that an order
could come into operation only when it became known. The order
questioned here was made on the 16th May, 1917 and in effect published on
May 17. There was no reason to suppose that any one in the trade knew
about it. His Lordship agreed with the rule that a statute would come
into effect from the earliest moment on the date o f its coming into force.
But he argued:*

T h ere is ab o u t statutes a p ublicity even before they com e into operation w hich is a b ­
sent in the case o f m an y orders such as th at w ith w hich we a re now dealing.

1- A .I.R . 1952 N ag. 387.

2- (1901) 1 K .B . 073.
3- (1918) 1 K .B . 101.
4- Ibid, at 103.
 148

H e decided therefore th at the order did not become effective until

the morning of M ay 17 when it was known.

The Johnson's case has been described as ‘a bald example o f Judge

m ade law,i and its soundness ‘very doubtful’.s However, the view ex­
pressed there gets support from Lynskey, J., who stated in Simms Motors
Units V. Minister o f Labour^ that a statutory rule or order ‘must be pub­
lished in the proper way for the information o f the public and those who
are bound to comply with the regulations.’
The Statute Instrum ents Act, 1946, provides th at unless otherwise
provided by law, copies of statutory instruments shall be printed and sold
as soon as may be after their making.^ The Act also affords a protection
whereby in criminal proceedings for contravention of any statutory instru­
ment it can be pleaded as defence that the instrum ent in question has not
been ‘issued’ by the stationery office or that no reasonable steps are taken
to make it known.o It was held in R. v. Sheet M etalcraft Ltd.,^ that an
instrument, which was required to be printed as above, was not precluded
from coming into effect because o f its non-printing. The court pointed out
th at by providing the afforesaid statutory defence in criminal proceedings,
the Act postulated that the instrum ent was validly made and was opera­
tive before it was printed; otherwise there would have been no infringe­
m ent o f the instrum ent and in that case there was no necessity for provid­
ing the defence. This decision was given by a lower court but in view of
the language used in the provision, it does not seem likely that the higher
courts will treat the requirement of printing mandatory.

In Australia the requirement to notify regulations was regarded as

imperative by a State Supreme C ourt in Shepparton Water Trust v. JeffreyJ
In this decision an objection that the regulation was not validly made
because it was not notified in the gazette as required, was upheld. As
regards publication of delegated legislation made by the Commonwealth
authorities, it is required^ th at all regulations must, unless a contrary in­

i' A llen, Law and Orders (2nd e d .), 132.

3- Ibid, a t 133.
3- (1940) 2 All E .R . 201.
i.- S. 2(1).
5- S . 3(2).
6- (1954) 1 a s . 58*5.
7- 1890 A .L .R . 42.
8- Sec, Acts In terp re ta tio n Act, 1901-59, S. 4 8 (l)(a ).
 149

tcntion appears, be notified in tiie gazette. There does not seem to be

any High C ourt decision on tlie point whether such a provision was
directory or m andatory. But in Digiian v. Australian Steamships Pty. Ltd,
Evatt, J., observed.i “Notification in the Gazette is essential to the regula­
tions taking effect at all.” According to this view, the requirement to
notify should be regarded as m andatory .2

111 Canada it was held in a British Columbia case o f R ex v. Rose^^

that there could be no convinction for the contravention o f an order which
was not published and was not in the knowledge o f the accused. Though
there was, in the Province o f British Columbia, no provision which required
publication of legislative orders at all, but the court relied for its decision
on the authority o f the English case o f Johnson v. Sargent and SonsK The
view taken in these cases that since delegated legislation does not receive
the publication which a statute gets, the former does not come into effect
until published (though no such restriction operates in case statutes),
has been widely crhicised in Canada. The discussion however is only o f an
academic interest now after the enactment of the Rules Publication Act,
1950. S. 6(1) of the A ct requires every regulation save those specially
exempted under S. 9 o f the Act, to be published in the C anada Gazette
within a specified time of its making. The Act, however, adds a rider in
sub-sec. (3) o f the said section to the effect that no regulation will be
invalid by reason only because it is no t published. The requirement
evidently seems to be only directory. It may, however, be noted that
the view expressed in R ex v. Ross still continues to be a good law in
Canada.

The Orange Provincial Division of the South African Supreme C ourt

held certain rules to be invalid in Van Rooy v. Law Society,^ because

1- (1931) 45 C .L .R . 188 a t p . 201.

2- B ut it seems th a t if once a regulation becomes effective, it can in certain cases (i.e.
w here the existing rights o f a person, other th an the C om m onw ealth o r a n au th o ­
rity o f th e C om m onw ealth, are not prejudicially affected), be m ade to operate
from a d a te before th e d a te of its notification. See, S. 48(2) o f Acts In terp re ta ­
tion A ct a n d th e interp retatio n p u t on it b y the H ig h C o u rt in Australia Coal and
Shale Emplcyees Federation v. Aberfield Coal Mining Co. Ltd. v. Commonwealth (1945) 71
C .L .R . 245. T h e effect o f these decisions is discussed by C .K . Com ans. See,
Retrospective Commonwealth Regulation, 27 A .L .J.231.
3- (1945) 3 D .L .R . 574.
4- Supra.
5- 1953 S .A .L .R . 580 O .P .D .
 150

they were never prom ulgated as required by a general statutory provision.i

It was contended in this case that since the provision requiring publica­
tion was couched in the positive and not negative language 2 and since there
was no sanction added in case of non-compliance with the requirement, the
provision was directory. The court rejected the contention on the ground
that there was nothing in the authorising statute which could be taken as
expressly or by necessary implication dispensing with the general require­
ment of publication. It was therefore held that the provision was
peremptory.

In South Africa, even at common law, the position is that regulations

or bye-laws to have the force o f law must be duly published.^

In America, S. 5(1) o f the Federal Register Act requires the pubhca-

tion in the Federal Register of such documents as may be required to be
published by an Act of Congress. The Administrative Procedure Act
directs, as m entioned earlier that, “ agency shall separately state and
currently publish in the Federal Register. . . substantive rules adopted as
authorised by law.” '* S. 4(c) of the same Act requires that “pubUcation
or service of any substantive rules shall be made not less than 30 days
prior to the elTective date thereof except as otherwise provided by the
agency upon good cause found and published with the rule.”

W hat will be the effect of non-publication o f a rule made under

delegated authority has not been expressly m entioned in the above two
statutes. But S. 7 of the Federal Register Act says that no document
required to be published under the Act “ shall be valid as against any person
who has not had actual knowledge thereof” until it has been actually fixed
for publication. A circuit court has held in Hatch v. U.S.^ that the effect
of the above provisions is that a regulation which had not been published
is not valid regardless o f whether the person charged with its contraven­
tion had actual knowledge of its contents. It observed:®

!• s. 16 o f the In terp re ta tio n A ct 1910, now S. 16 of a n A ct of 1957 bearing the same

title.
2- See quotation from Sutler v. Scheepers, 1932 A .D . 165, Supra.
3- R . V . G luck, 1923 S .A .L .R . 149 A .D . a t p. 151.
4- T h e A dm inistrative Procedure A ct, 1946, S. 3(a)(3).
5- 212 F. 2nd 280 (1954).
6- Ibid, a t 283. In American Air Transport Inc. et al v.iCivil Aeronautic Board etal, 08F. Supp.
660 (D .C . 1951), an A m erican D istrict C ourt held the requirem ent for notice as
m andatory.
 151

T h e Acts set u p th e p ro c ed u re w hich m u st be follow ed in o rd e r fo r agency rulings to

be given the force o f law . U nless the procedures a re com plied w ith , th e agency
(or adm in istrativ e) ru le h a s not been legally issued a n d consequently it is
ineffective.

Davis has criticised! this decision as wrong in view o f the aforesaid

express provision of the Federal Register Act that an unpublished regula­
tion is not valid “ as against any person who has not had actual knowledge.”
The m atter does not seem to have been considered by the Supreme Court
so far.

The Supreme C ourt of India considered the effect of non-publication

of delegated legislation in ffarla v. State o f Rajasthan^ and Narendra Kumar
V. Union o f India.^ The facts of the first case were that during the minority
of the then M aharajah o f Jaipur State, a Council o f Ministers was appoint­
ed in 1923 by the Crown Representative to look after the government
and administration of the State. The powers o f the council were defined
and limited. This council by a resolution purported to enact the Jaipur
Opium Act which was never published and nor was it made known to the
public through any other means. The court did not know what law or
custom regarding the coming into effect o f an enactm ent was prevalent in
Jaipur State. It therefore applied the principle o f natural justice that
before a law could be operative, it must be prom ulgated or published. The
Supreme Court expressed itself rather strongly;'*

T h e th o u g h t th a t decision reached in the secret recesses o f a C h a m b e r to w h ic h the

public h ave n o access a n d to w hich even th eir accred ited representatives h ave no
access and o f w hich they can norm ally know n o th in g , can nevertheless affect th e ir
lives, liberty a n d p ro p e rty by th e m ere passing of a resolution w ith o u t a n ything
m ore is a b h o rre n t to civilised m a n ............P rom ulgation or p u b lic a tio n o f som e re­
asonable sort is essential.

The statutory requirement for publication of rules is thus reinforced by

the dictates o f natural justice and therefore leaves no room for doubt about
its mandatory character.

1- Administrative Law Treatise, (1958), V ol. 1, pp. 395-00; Administrative Law Text, (1959),
p . 110.
2- 1D51 S .C .J. 735.
3- 1960 S .C .J. 214.
i- 1951 S.C.J. 735, at p. 737; (1952) II I S.C .R. 110 at p. 113.
 152

In the other case o f Narendra Kumar v. Union o f India,^ the Supreme

C ourt was concerned with the Non-Ferrous M etals (Control) Order 1958.
The order was made by the Central Governm ent under S. 5 o f the Essential
Commodities Act, 1955, and was made applicable to copper. Cl. 4 of
the order prohibited acquisition o f non-ferrous metal except under a
permit issued by the controller ‘in accordance.with such principles as the
Central Government may from time to time specify.’ The enabling section
required all rules made thereunder to be notified and laid before both Houses
of Parliament. The petitioners, who were dealers in copper, applied per­
mits to purchase the metal from importers but none was issued. Four days
after the petitioners’ application, the Central Governm ent communi­
cated to the Chief Industrial Adviser in a letter certain principles on the
basis of which the permits were to be issued and the effect of the principles
was that the permits were to be issued only to the manufacturers. The
Non-Ferrous M etals Order was itself published in the gazette but the
principles were not notified. A question for the court to decide was whether
these principles had any legal force. The court held that since they were
not notified and laid before Parliament as required by the enabling statute,
they were ineffective. Thus, the provisions regarding notification and
laying were treated as imperative. W hat would have been the effect if the
principles were laid out but not notified, is not clear from the decision.
The issue regarding non-publication of the principles was decided rather
summarily without giving any reason why the requirement o f notification
was regarded as m andatory and not directory. In State o f U.P. v.
M . L. Srivasiava,^ the court had cited with approval a rule from
Crawford on Statutory Construction th at for holding a provision to be
m andatory or directory the consequences which would follow from cons­
truing it in one way or the other, should also be taken into consideration.
T he fact th at the court has not laid down any positive rule on the point
only indicates th at a requirement for notification of delegated legislation
must be regarded as imperative without doubt.

It is interesting th a t in In re Pesala Subrahmanyam,^ the M adras High

C ourt has gone still further. S. 3(2) (c) of the Essential Supplies (Temporary
Poweis) Act, 1946, required the publication of the notification in the
‘‘Oflficial Gazette” , The relevant notification was however published in

1- 1900 S .G .J. 214.

2- 1958 S .C .J. 150 a t p. 15R,
:!• A .I.R . 1950 M ad. 308.
 153

tha District Gazette. Relying on the General Clauses Act, 1863, the court
construed the ex.pression, ‘Official G azette’ meaning the Gazette o f India
or F ort Saint G azette of M adras Province and invalidated the notification
on the ground th a t publication of the notification in the District Gazette
was not a sufficient compliance with the requirement of the A ct.’

3 . Effect of failure to lay

In all the countries under study, except the U.S.A., the normal practice
is to require statutory rules to be laid before the respective legislatures.
Even in the U.S.A., the requirement for laying has not been completely
unknown .2 W hat actually is the legal effect o f failure to comply with this
requirement, is discussed below.

In the U .K ., the effect of a failure to comply with the requirem ent of

laying is not clear,3 as there is no direct judicial authority on the point.
In Bailey v. Williamson,'^ the court considered certain rules which were
required to be laid before the House of Parliam ent within specified time
after being made and were not to be enforced to the extent to which they
were disapproved by either House within th at period after being laid.
It was held th at the disapproved rules were not to be enforced after
the disapproval, but were valid until then. Thus the rules were regarded
as valid before they were laid, but the decision did not say anything about
the effect o f nonlaying. By the time the case arcs? the rules were not
laid but period prescribed for their laying did not expire.

In Storey v. Graham,^ a doubt arose whether the laying requirement

was more than directory, e

1 ■ T h e H igh C o u rt of P u n ja b held inSundcrlal v. State o f Punjab, (A .I.R . 1957 P u n ja b 140)

th a t a decision of th e governm ent to am end a n existing rule, though com m unicated
to the heads o f the dep artm en ts did n o t a m o u n t to a n a m en d m en t because it. w as n o t
published in th e G azette for th e inform ation o f the people concerned. In th is case
there was no provision requiring publicatiflii even of the original rules,
2- See, C hap. V.
3* B ut the position is clear in situations w here a sta tu re specifically stipulates th a t unless
tljey are laid before legislature th e rules do not com e in to force. In such cases failure
to com ply w ith th e re q u ire m e n t renders the rules invalid, See. Metealfie v. Cox (1895)
A .C . 328.
4- (1873) 8. Q..B 118.
5- ( 1 8 9 4 )A .C . 347,
6- (1899) 1 Q..B. 406. In Institute o f Patent Agents Lockwood (1894) A .C . 347, L ord
H ersehell observed th a t ‘lay in g ’ was com pulsory b u t he d id not explain w hat w ould
be the effect if the ru le s w ere n o t laid.
 154

Allen thinks^ that it is better to regard the requirement for

laying as directory where the statutory instruments to which it is
annexed are subject to a negative resolution, because the annulment of such
instrum ents usually is w ithout prejudice to the acts done earlier. This
he argues, assumes th at the instrument is valid from the beginning but is
subject to a condition subsequent. This assumption cannot however apply
to statutory instruments which are required to be laid before they become
operative as required in S. 4 of the Statutory Instrum ents Act, 1946.

W here rules are to be laid and are subject to affirmative resolution,

laying the rules do not become effective, or continue to be effective, with­
out an affirmative resolution, and so laying becomes m andatory. How­
ever, when the laying requirement is in respect o f a draft—whether subject
to an affirmative or a negative resolution — i t has been s u g g e s te d ^ that the
requirement is imperative because here the laying precede the making.

The departm ental view in the U.K . seems to be that a requirement to

lay delegated legislation before Parliament is directory.^ Yet the govern­
ment, it is interesting to note, got Indemnity Acts* passed by Parliament on
two occasions when it found that certain instruments had not been laid in
accordance with their authorising Acts. These statutes not only indemni­
fied the officials concerned against all the consequences whatever of the
failure to lay but also provided th at the instruments in question ‘shall be
deemed to have been duly laid before ParUament’. I f that was so and
if the laying requirement was considered to be merely directory, then the
necessity o f such statutes did not arise.

In Australia a State Supreme C ourt has held laying requirement to

be m andatory in Bain v. Thorne.^ The parent Act provided that regula­
tions made under it should have the force of law on their publication and
should be laid before Parliam ent within a specified period after their
approval by the Governor-General-in-Council. The regulation in question
was never so laid. The court held that even if the regulation had come into
force on its notification in the gazette, it became inoperative because

1■ Allen, Law and Orders (2nd ed.) p . 166.

2- Griffith a n d Street, Principles o f Administrative Law (2nd ed.) p. 110.
3- See A llen, Im w and Orders (2nd ed.), p . 161.
4- N ational Fire Service R egulations (Indem nity) Act, 1944; Price C ontrol and other
O rders (Indem nity) A ct, 1955.
5- (1916) 12 T as. L .R . 57.
 155

subsequently it was not laid as required. The laying, said the court,
“ cannot be looked upon as merely directory.” The requirement was re­
garded as a m atter of real substance since, by this, the Parliam ent had, in the
opinion of the court, retained control over the regulation. Though the
Houses had no power to rescind the regulation, it was, in the court’s view,
possible for any member of Parliament to move a resolution which, if carried
would practically compel the government to have them rescinded.

But later in Dignan v. Australian Steamships Pty. L td .} two High

Court Judges^ expressed the view th at a provision requiring laying of re­
gulations was not m andatory. S. l0 (c) of the Acts Interpretation Act
1904-30, directed all regulations made under an Act to be laid before each
House o f the Commonwealth Parliament within a specified time after their
making. The Act was silent about the effect of non-laying, and that was
why their Lordships held that the non-tabling o f regulations did not make
them void.3 The Acts Interpretation Act has since then been amended so
as to provide that failure to lay would make the regulations void.

In Commonwealth v. Grunseit,'^ the High t o u t t considered tlie clTcct

of ‘non-tabling’ of a direction which was not laid under’S. 48 (1) (c). It
was contended that the direction was legislative and so was void being not
laid. The court held that the direction was administrative and not legis­
lative and so laying was not necessary. It was not however disputed that
had the direction been legislative, its non-tabling would have made it void.

So in Australia, we see that the regulations which are not laid

before Parliament within the specified time, have to be remade and
then laid before the Houses. Remaking in these cases is deemed necessary
because the regulations are considered to have become void for failure
to lay.5

W hat the courts in C anada feel regarding the effect of non-

laying is not known though in that country, S. 7 of the Regulations Act
makes it compulsory to lay all regulations except those specially exempted in
this behalf.

1- (1931) C .L .R . 188.
2- Discon & S tarke, J J .
3- Ibid, a t 202, 205.
4- (1943) C .L .R . 58.
5- See, Seventh R ep o rt of the Com m ittee on R egulations aad Ordinanc<-
 156

The qeestion does not appear to have come up before the South
African Supreme C ourt but the Cape of Good Hope Division of that court
considered it in R. v. Daniels & Another.^ A certain Provincial Regula­
tion required to be laid upon the table o f the Provincial Council within a
specified time after its making was not so laid, yet the court held it valid
treating the laying provision as directory. The court gave three reasons
for this view: first, if the provisions were regarded as m andatory the conse­
quence would be uncertainly in law. Secondly, there was no explicit
legislative statement that the regulation was to be void if it was not
laid. Thirdly, the direction for laying was couched in positive and not
in negative language and the legislature had imposed or suggested no penalty
which was to follow in case the regulation was not laid. The West Indian
Court of Appeal in Springer v. Doorly^ also held the laying requirement as
directory on the ground o f avoiding uncertainty in law.
In the U.S.A. only a few statutes require rules m ade thereunder to be
so laid or to be reported to Congress.^ In such cases invariably the
authorising Acts direct that the rules would take effect after a specified
period from the date of their transmission to Congress. Even where a
rule is subject to a negative resolution, it cannot under its enabling terms,
take affect until the prescribed period has expired. If such resolution is
passed within the said period, the rule never becomes operative. The
reporting of rules to Congress in such cases is clearly a condition precedent
for their coming into force and must be taken to be a m andatory require­
ment. There seems to be no judicial authority on the point but Pfiffner
thinks that the ‘reporting’ is mandatory.*
In India until recently the requirement to lay subordinate legislation
before Parliament was made in the following words

All rules m ade u n d e r ihis section shall be laid for n o t less th an 30 day s before
b oth H ouses of P a rlia m e n t as soon as possible after they a re m ad e a n d shall be
subject to such m odifications as P a rlia m en t m ay m ake d u rin g the session in w hich
they are so laid o r th e session im m ediately following.

Regarding the effect of non-laying two questions seem to arise;

(1) Arc the rules prevented from taking effect until they are laid before
1- (1936) C .P .D . 331.
2- cf. 38 Can. Bar Rev. (I'JoO), p. 791.
3- For details see C h a p . V .
4- Public Administration, p. 498.
a- See, First R ep o rt, Lok S ab h a C orarnitttc on S u b o rd in a te Legislation (1951).
 157

Parliam ent? (2) I f the rules can come into effect before they are so laid,
do they cease to be effective subsequently because they arc not laid within
the specified period?

As to the first question, the following observation of th e Supreme

Court, though made by way of obiter dicta, in Express Newspapers v.
Union o f I n d i a , may be relevant:
T h e rule was fram e d by th e C c n tia l G o v e r n m e n t . . a n d was a p iccc o f delegated
legislation w hich, if the rules w cie laid before b o th the H ouses o f P a r l i a m e n t . . . .
acq u ired the force o f law . A fter the p u b lic a tio n o f the rules, th ey becam e a p a rt
o f the A c t itself.

The earher part of this passage suggests that for bringing the rules into
force their laying is essential, but the latter p art indicates, perhaps a little
inconsistently, that their publication is enough to give them the force of
law. It is difficult to draw an inference whether the court said so because
in its opinion both laying and publication were essential. We may recall
here that in Narendra Kumar v. Unio)i o f India;- certain principles
regarded as part of certain statutory rules were declared ineffective because
they were neither published nor laid. There is, however, nothing in
Narendra Kumar's case to suggest that the result would liave been the same
if the principles were published but not laid.

In 111 re Kerala Education Bill, the Supreme C ourt observed : =

‘After the Rules are laid before the Legislative Assembly they m a y be
altered or amended and it is then that the Rules, as amended, become
effective. I f no amendments are made the Rules com e into operation
after a period o f 14 days (the period for wliich they were required to
remain before legislature) expired.’

Here the court seemed to be o f the definite view that the rules could not
come into effect until they were laid and after the laying period had elapsed.
If this was the correct view, it would follow that the rules would not be
effective at all in case they were n o t laid.

This m atter was considered in detail by the Calcutta High C ourt in

Munnalal v. H. R. Scott,^ where the court examined whether a laying

1 • 1958 S .C .J. 113 a t p. 118.

2- Supra.
3- 1959 S .C .J. 321 a t p. 344
4 ' 195.5 A .I.R . C al. 451.
 158

requirement, contained in Art. 320(5) of the Constitution o f India, was

mandatory or directory. This provision was materially the same as given
above with the addition, however, o f a few words to the effect that the
modifications which the Houses o f Parliament might make could be
‘whether by way of repeal or amendment’. Chakravarti, C.J., pointed
out th at the word ‘repeal’ implied and connoted that what had to be repealed
was already law. It was not said in the provision that till the regulations
had been laid or after they had been laid for a particular period, they
should not come into force. The court therefore held that the laying
requirement was not m andatory and the regulations involved in the case
were intended by the Constitution to be valid even before they were laid.

The Calcutta High C ourt’s opinion that the statutory rules required
to be laid before Parham cnt are valid even before they are laid, seems
rather convincing. Prior to the regular practice of providing for laying of
statutory rules before Parliam ent grew up, the enabling Acts used to state,
th at rules might be made by government by notification in the Gazette
and to come into force on the date of such notification or on a later date
specified therein. Now what the laying provision requires is th a t the rules
shall be laid. . . as soon as possible after they are made. . . Obivously
the old position that rules may come into effect on their notification seems
to remain unchanged. No doubt rules are directed to be subject to such
modifications as Parliam ent may make within the prescribed period after
their laying, but this direction does not affect the validity of the rules prior
to passing of such modifications if any.i

It is interesting to note that to get over the difficulties implicit in the

observation of the Supreme C ourt in In re Kerala Education Bill,” the Central
Government, after consulting the Committee on Subordinate Legislation,
changed the laying clause in such a way that the rules required to be laid
before Parliament would be operative ab initio.^ The following words
have been added to the clause

So lio w cv tr th a t any such m odification o r a n n u lm e n t shall be w ithout prejudice to the

v alidity o f any thing previously done u n d e r th a t rule.

1- T h e English Case, Bailey v. Williamson (1873)8 Q,.B. 118 is a useful guide on this
point.
2- 1959 S .C .J. 321 a t p. 344.
3- Fifth R eport, Com m ittee on S ubordinate Legislation (2nd L .S .), pp. 8-9.
i- F o r exam ple, sec S. 17 o f the H aj C om m ittee A cl, 1959.
 159

The second question, whether the rules cease to be operative if they

are not laid before the Legislature within the specified time, remains to be
considered. If the rules required to be laid become effective before they
are laid, do they later cease to be operative if not laid within the prescribed
period? The Supreme C ourt’s observations cited above do not indicate
th at the court regarded the laying requirement as directory; rather they
suggested the contrary. The Calcutta High Court, which held in Muntialal
V. H . R. Scott‘S that the laying requirement was directory, did so, it is res­
pectfully submitted, without considering the question fully. The court
examined only one aspect of the problem—whether laying was essential
for the relevant regulations to come into effect. After finding that the
regulations were intended to be valid even before they were laid, the court
held that the laying requirement was directory. If ‘laying’ was directory
it should mean that a failure to lay the regulations within the prescribed
period would not affect the continued validity of the regulations. But
this aspect was not touched by the court.

In deciding whether the requirement to lay statutory rules within the

prescribed period is directory or mandatory, the consequence of holding
the requirement as m andatory shall have to be taken into consideration.
The period within which rules are required to be laid according to the
laying clause in India is “ as soon as possible after they are m ade”
which means an indefinite period. I f the laying provision is held to be
mandatory, the consequence will be that the rules which are in force
ab initio will cease to be operative because they are subsequently not laid
before Parliament within some future and indefinite period. This will
introduce uncertainty into law, causing hardship to the general public for
want of proper means to know the government’s failure to lay. On the
other hand, if we look to the object of the laying requirement it does not
seem to be m ore than th at of providing an opportunity for parliamentary
control o f delegated legislation. But as was said in Springer v. Doorly,
uncertainty in law is a greater evil than the ineffectiveness o f parliamentary
control in those few cases where there may be failure to lay. If all these
factors afe taken into consideration it seems likely that the Indian courts
will take the stand that the requirement to lay rules before Parliam ent
within the prescribed period is only directory.

1• Supra.
 160

Concluding Remarks

The judicial control o f delegated legislation in India is on a faiily

wide scale. O f the several groiinds on which the doctrine o f ultra vires
is applied to statutory rules, the ground of ‘unreasonableness’ is not in
much use in India in determining the validity of such rules, except, of
course, when validity of delegated legislation is to be judged with reference
to A rt. 19 of the Constitution. As regards ‘failure to lay’, as a ground
o f procedural ultra vires, the obiter dictum of the Supreme C ourt in In
re Kerala Bill^ (suggesting that such rules when required to be laid, do not
become effective until laid) has, of course, now been watered down
and the rules can now be brought into effect before laying.

The scope of judicial control o f delegated legislation is much wider

in India than in the U.K. Delegated Legislation in India is required to
conform not only with the enabling Act but also with the written Consti­
tution and further the enabling Act itself must conform with the Consti­
tution; whereas in the U .K ., statutory instruments have to conform only with
the empowering Act, and the validity of an Act o f Parliam ent cannot be
questioned. In Australia, Canada, South Africa and the U S.A., the
position is the same as in India. Even as com pared with the American
courts, the Indian courts exercise a greater check on delegated legislation
because they apply the doctrine of mala fides, like the English, Canadian
and South African courts, while in the U.S.A. the bona fides o f a legislative
body, be it a legislature or a subordinate law making body, cannot be
questioned in respect of its legislative acts.

The Supreme C ourt’s attitude in respect of laying requirement, as

expressed in In re Kerala Bill,^ Express Newspapers v. Union o f India^ and
Narendra Kumar v. Union o f Iiidia^ appears to be rather strict, but it is
suggested that the above requirement should be regarded as merely direc­
tory. The reasoning o f South African case R. v. Baniels^ and of the West
Indian case Springer v. Doorly^ that the consequence of holding such re­
quirement to be m andatory would unnecessarily bring uncertainty into

1- 195i) S .C .J. p. 321.

2- Ibid.
3- 1958 S .C .J. 1113 a t p. 1187.
4- 19C0 S .C .J. « U .
6- (193G) C.'P.D. 33].
6- U nreported, but discussed in 2S Can. Bar. Rev., (1950), 791.
 16 1

law, sounds to be strong. If certain statutory rules, which have already

come into force, cease to be effective for want of layin g within an uncer­
tain period described as “ as soon as possible” , there might be hardship
to the general public. The object o f the provision to lay is to provide for
patliam entary control, and the government’s failure to comply with the
provision does, no doubt, defeat th a t object, but ineffectiveness o f parlia­
mentary control in stray cases where government may fail to lay rules
m ay not be so great an evil as the uncertainty of law that results from
holding the requirement to be mandatory.

Regarding sub-delegation, the Indian judicial opinion is that a power to

make law cannot be sub-delegated w ithout there being an express provision
in th at behalf by the enabling Act. It should however be realised th at with
the need for ever increasing State regulation, more and more quasi-legislative
powers have to be conferred on the government, and th at too in broad
terms. W ithout sub-delegation, the government may not find it possible
to fram e the necessary rules and regulations. A strict apphcation of the
rules against sub-delegation m ay thus cause administrative hardships. It
is now a settled law th at the legislature cannot delegate law making power
without laying down legislative policy for the guidance o f the delegate.
This policy, it is submitted, may be regarded as an adequate guide for the
sub-delegate also, and implied authority be read into the enabling Act to
th e effect th at sub-delegation can take place subject to the policy declared
in the statute. This necessity is being realised in the U .K . and has already
been recognised in the U .S .A .