Control on Executive Law

Making
Legislative and Judicial Control

Module 3
 Motor Vehicles Act -
Section 64 – Power of
Central Government to
make Rules.
Hypothetical
On 16.03.2022 – CG
passed rules regulating
taxi and cab services.
Hypothetical
◦ The rules were to apply retrospectively. – with effect from
01.03.2022.
◦ The rules regulated the colour of Taxis/Cabs.
◦ All taxi cabs were to be painted – blue, red, orange.
◦ If not complied with, the police has the power to detain these
vehicles without a warning.
◦ Sonipat Tours and Travel has approached the Section to draft a
petition challenging the same.
◦ Grounds?
Grounds
Delegated legislation may be held invalid on the grounds of substantive ultra vires in the
following circumstances :
◦ When Parent act is unconstitutional.
◦ When Parent act delegated essential legislative functions.
◦ When DL is inconsistent with general law.
◦ Where DL is unconstitutional.
◦ Where DL is arbitrary.
◦ Where DL is unreasonable.
◦ Where DL is mala-fide.
◦ Where DL operated retrospectively.
Introduction
◦ Basic Problem is controlling the delegate in exercising his legislative powers.
◦ “Today the question is not whether delegated legislation is desirable or not but what controls and
safeguards can and ought to be introduced so that the rule making power conferred on the Administration is
not misused or misapplied.”
– Committee on Ministers’ Powers.
 Safeguards – Control Mechanisms.
◦ It suffers from various defects  abandonment of legislative functions from the legislature and enhancement
of powers of the administration.
◦ Legislature uses subjective words  “necessary” or “expedient”  without laying down any standards or
procedures  granting a blank cheque to the executive.
◦ More transparency when a bill is passed  publicity/discussion/public participation/gauging public mood in
the process.
◦ Democratic safeguard not granted with DL  drafted in government offices  no publicity  directly gets
notified  inherently undemocratic.
◦ Control over Delegated Legislation:
a) Pre-Natal: Legislative control – How much should the legislature delegate? Should the power delegated be
unlimited? What kind of Control mechanisms are in place?
b) Post-Natal: Exercise by the Administration – control mechanism to be put into place to minimize abuse.
◦ If the legislature confers certain safeguards/standards/norms  exercise of those powers can be tested in light
of those standards  Ultra Vires Principles.
CATEGORIES
Legislative Judicial Control
Control
 Beyond the power or authority
or lack of power.
When is an act ultra vires?

Principle of Courts can decide the validity of

delegated legislation mainly
Ultra Vires applying two tests :
◦ Procedural Ultra Vires
◦ Substantive Ultra Vires
 Pre-Natal Control – Procedural

When a subordinate legislation fails to comply with

procedural requirements prescribed by the Parent Act
or by a general law.
Procedural Ultra-Vires
◦ Rule-making authority may be required by the parent act to follow certain
procedures.
◦ While framing rules, bye-laws, regulations etc., the parent act or enabling
statute may require the delegate to observe a prescribed procedure.
◦ Why is the procedural requirement in DL different from the PA?
◦ Can these rules be made without complying with these procedures?
◦ Courts looks at whether the prescribed procedure is mandatory or directory?
 PUBLICATION

Procedural
Requirements
CONSULTATION
 I. PUBLICATION
◦ Ignorantia juris non excusat.
◦ Public must have access to the law, and they should be given the opportunity to know the law –
Accessibility
◦ UK – Rules Publication Act, 1893
◦ US – Federal Register Act, 1935
◦ What is the mechanism in India?
◦ It is essential, therefore, that adequate means are adopted to publicise delegated legislation, so that
people are not caught on the wrong foot in ignorance of the rules application to them in a given
situation. The system of publication ought to be such that delegated legislation is not only made know
to the people, but it is also easy to locate when necessary.” - Jain and Jain.
 Usually, the date is mentioned in the rules
When does a themselves.
Three possibilities:
delegated ◦ The date on which they are made.
legislation ◦ The date on which they are published.

come into ◦ In the case of requirement of their

publication in the Gazette, or specified
force? mode, the date on which it is so published.
Lachmi Narain V. Union Of India &
Ors
Bengal Finance (Sales Tax) Act, 1941
“6(1) No tax shall be payable under this Act on the sale of goods specified in the
first column of the Schedule subject to the conditions etc: and (2) The State
Government after giving by notification in the official gazette not less than 3
months notice of its intention to do so, may by like notification add to or omit
from or otherwise amend the Schedule and thereupon the Schedule shall he
amended accordingly A modified Schedule of goods exempted from tax under s.
6.”
What is the procedural requirement here?
What did the court hold in this case?
Art 309
Recruitment and conditions of service of persons serving the Union or a State Subject to
the provisions of this Constitution, Acts of the appropriate Legislature may regulate the
recruitment, and conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union or of any State
Provided that it shall be competent for the President or such person as he may direct in the case
of services and posts in connection with the affairs of the Union, and for the Governor of a State
or such person as he may direct in the case of services and posts in connection with the affairs of
the State, to make rules regulating the recruitment, and the conditions of service of persons
appointed, to such services and posts until provision in that behalf is made by or under an Act of
the appropriate Legislature under this article, and any rules so made shall have effect subject to
the provisions of any such Act
 A. Directory vs. Mandatory
Is the requirement of prior publication of delegated legislation
mandatory?
Harla vs. State of Rajasthan

M/S Pankaj Jain Agencies vs. Union of India

Collectors of Central Excise vs. Tobacco Company Etc.

Gulf Goans Hotels Co. Ltd. vs. Union of India

Harla vs. State of Rajasthan - 24/09/1951
◦ Rulers of Jaipur had full powers of government including those of legislation. On the 7th of
September 1922, the late Maharaja died and at the time of his death his successor, the present
Maharaja, was a minor.
◦ The Crown Representative appointed a Council of Ministers to look after the government and
administration of the State (Jaipur Gazette Notification dated the 11th August 1923).
◦ On the 11th of December 1923, this Council passed a Resolution which purported to enact the
Jaipur Opium Act.
◦ The appellant was convicted under section 7 of the Jaipur Opium Act and fined Rs. 50.

Issue: Whether the mere passing of the Resolution without promulgation or publication in the
Gazette, or other means to make the Act known to the public, was sufficient to make it law?
Time-line
◦ The Council enacted the Jaipur Laws Act, 1923.
Section 3(b) of this Act provided as follows :--
"3. Subject to the prerogative of the Ruler the law to be administered by the Court of Jaipur State shall be
as follows:
(b) All the regulations now in force within the said territories, and the enactments and regulations that may
hereafter be passed from time to time by the State and published in the Official Gazette."
◦ This law came into force on the 1st of November 1924. It is admitted that the Jaipur Opium Act was
never published in the Gazette either before or after the 1st of November 1924.
◦ But it is contended that was not necessary because it was a "regulation" already in force on that date.
◦ On the 19th of May 1938, section 1 of the Jaipur Opium Act was amended by the addition of sub-
section (c) which ran as follows: "(c) It shall come into force from the 1st of September 1924.” (14
years later!)
◦ The offence for which the appellant was convicted took place on the 8th of October, 1948.
Court Held
◦ The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor
did it function of its own right. It was brought into being by the Crown Representative, and the
Jaipur Gazette Notification dated the 11th August 1923, defined and limited its powers.
◦ “We are entitled therefore to import into this matter consideration of the principles and
notions of natural justice which underlie the British Constitution, for it is inconceivable that a
representative of His Britannic Majesty could have contemplated the creation of a body which
could wield powers so abhorrent to the fundamental principles of natural justice. “
◦ In the absence of some specific law or custom to the contrary, a mere resolution of a Council
of Ministers in the Jaipur State without further publication or promulgation would not be
sufficient to make a law operative.
◦ Jaipur Laws Act of 1923 only saved laws which were valid at the time and not resolutions
which had never acquired the force of law.
M/S. Pankaj Jain Agencies vs Union Of India And
Other on 14 July, 1994
◦ The petitioner, challenges the vires of Notification dated 13-2-1986 of the Central Government
issued in exercise of powers under Section 25(1) of the Customs Act, 1962, amending the
earlier Notification dated 17-3-1985.
◦ These notifications relate to rates of customs duty on the imports of parts, components and
sub-assemblies of Ball Bearings and Roller Bearings.
◦ The petitioner's contention is that the higher rates of duty indicated in the Notification dated
13-2-1986 could not be applied to the said two consignments as the impugned notification
could not be held to have been duly promulgated or brought into force on the day the
import had occurred.
◦ That the import was complete even before the impugned notification can be said to have come
into force as the impugned notification was not made known to those who were likely to be
affected by it as the notification was not available in Bombay till the 19-2- 1986.
Court Held
◦ The mode of publication prescribed by Section 25(1) was complied with. The notification was
published in the Official Gazette on the 13-2-1986.
◦ It will take effect only when it is published through the customarily recognised official
channel, namely, the Official Gazette or some other reasonable mode of publication.
◦ No substance in the contention that notwithstanding the publication in the Official Gazette
there was yet a failure to make the law known and that, therefore, the notification did not
acquire the elements of operations and enforceability. This contention was not accepted.
◦ “if it is published in such a manner that person can, if they are so interested acquaint
themselves with its contents. If publication is though a Gazette, then mere printing of it in the
Gazette would not be enough. Unless the Gazette contained in the notification is made
available to the public, the notification cannot be said to have been duly published.”
◦ Once the notification was published in the manner laid down in the Act, it was further not
necessary to make it known for its enforceability.
 Collectors of Central Excise vs. Tobacco Company Etc.
◦ Notification enhancing higher rate of duty on cigarettes was published on 30th November 1982 in the Official Gazette.
◦ Notification was placed for sale to public on 8th December 1982.
◦ Central Excise and Salt Act, 1944 Section 38 of the Act provides that all the rules made and notifications issued under
the Act shall be published in the official Gazette.
◦ The dictionary meaning of the word public’ as given in Webster’s Comprehensive Dictionary. International
Edition, is "(1) To make known or announce publicly; promulgate; proclaim, (2) To print and issue to the public (3)
To communicate to a third person.”
◦ “Natural justice required that before a law can become operative it must be promulgated or published. It must be
broadcast in some recognisable way so that all men may know what it is; or all the very least, there must be some
special rule or regulation or customary channel by or through which such knowledge can be acquired with the
exercise of due and reasonable diligence.”
◦ Interpreting the Pankaj Jain case erroneously, the SC held that the notification can be said to have been published only
when it is known to the public at large. Mere publication of notification in the Official Gazette was not enough.
◦ Overruled – Gulf Goan Hotels vs. Union of India.
Principle on Publication
◦ Law Stipulates it  must be published  Principle of Natural Justice  How
can a law be enforced when there is no way to find out about it.
◦ If the law doesn’t mention, where to publish  Official Gazette.
◦ Doesn’t need to be told to the public at large  enough that it is published on a
platform, so the persons interested have access to it.
 B. Mode of Publication
◦ Mode, manner and method of publication.
◦ Distinction between publication of delegated legislation and the mode, manner
and method of of publication.
◦ Even if requirement of publication is held mandatory, the mode or manner of
publication may be held directory and strict compliance may not be insisted
upon.
Raza Buland Sugar Co. vs. Municipal
Board, Rampur – Facts
Whether publication as provided in s. 131(3) mandatory or directory?
◦ Rampur Municipality, by a special resolution, proposed to levy property tax on persons or a class or
persons as per the U.P. Municipalities Act, 1916.
◦ S. 131(3) is divided into two parts. The first part lays down that the Board shall publish proposals and
draft rules along with a notice inviting objections to the proposals or the draft rules so published within a
fortnight from the publication of the notice (see Sch. III). The second part provides for the manner of
publication and that manner is according to s. 94(3).
◦ Under Section 94(3), every resolution passed by the Board shall be published in a
local Hindi Newspaper or in its absence by general or special order as may be directed by the State
Government.
 Holding – On Publication.
◦ “the question whether a particular provision of a statute was mandatory, or directory
cannot be resolved by laying down any general rule and it should depend upon the
facts of each case for that purpose, the object of the statute in working out the
provision is a determining factor……
◦ …….The purpose for which the provision has been made and its nature, the
intention of the legislature in making the provision, the serious general
inconvenience or injustice to persons resulting from the provision or other
provisions dealing with the same subject and other considerations which may arise
on the facts of a particular case including the language of the provision, have all to
be taken into account in arriving at the conclusion whether a particular provision is
mandatory or directory.” - Para 9 - Test .
 Holding – On Publication
◦ “Further the purpose served by the publication of the proposals being to invite objections, in
particular from the tax-payers, to the tax proposed to be levied on them, the legislature in its wisdom
thought that compliance with this part of s. 131(3) would essentially carry out that purpose. In the
circumstances if we are to hold that this part of s. 131(3) was merely directory, the whole purpose of
the very elaborate procedure provided in Sections 131 to 135 for the imposition of tax would become
meaningless, for the main basis of that procedure is the consideration of objections of tax-payers on
the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the
tax without complying with them and that would make the entire elaborate procedure provided in the
Act before a tax is imposed nugatory. We are therefore of opinion that this part of s. 131(3) is
mandatory and it is necessary to comply with it strictly before any tax can be imposed.” –Para 13
◦ We therefore hold that this part of s. 131(3) is mandatory
Holding – Mode and Method.
◦ “when the legislature provided for the manner of publication it did not intend
that that manner should be mandatory. So long as publication is made in
substantial compliance with the manner provided in s. 94(3), that would serve
the purpose of the mandatory part of the section which provides for
publication. It would therefore not be improper to hold that the manner of
publication provided in s. 94(3) is directory and so long as there is
substantial compliance with that the purpose of the mandatory part of s.
131(3) would be served.” –Para 14
Holding – Mode and Method.
◦ “It may be accepted that there has not been strict compliance with the provisions of s. 94(3) inasmuch as
the publication has not been made in a local paper published in Hindi. We must however point out that if
s. 94(3) is interpreted literally, all that it requires is that the publication must be in a local paper and
that local paper must be published in Hindi, though the actual publication of the resolution may not be
in Hindi. That does not seem to us to be the real meaning of s. 94(3) and what it substantially requires is
that the publication should be in Hindi in a local paper, and if that is done that would be compliance
with s. 94(3).
◦ Now what has happened in this case is that the publication has been made in a local paper which on the
evidence seems to have good circulation in Rampur and the actual resolution has been published in
Hindi, though the paper itself is published in Urdu. It seems to us therefore that there is substantial
compliance with the provisions of s. 94(3) in this case, even though there is a technical
defect inasmuch as the local paper in which the publication has been made is published in Urdu
and not in Hindi. But what has happened in this case is in our opinion substantial compliance with s.
94(3) and as we have held that provision to be directory it must be held that s. 131(3) has been complied
with.” – Para 15
Holding
◦ Section 131(3) is mandatory based on language, the purpose for
which it has been enacted, the setting in which it appears and the
intention of the legislature.
◦ Section 94(3) is directory. As long as compliance is made in
substantial part and it serves the purpose of the mandatory part of a
statutory provision, it would not be improper to hold the provision
as directory.
Govindlal C. Patel vs. Agricultural
Produce Market Committee
Whether the notification issued under Section 6(5) of the Act, covering additional
varieties of agricultural produce like ginger and onion, must not only be published in the
official gazette but must also be published in Gujarati in a newspaper?

◦ In the State of Bombay there was in operation an Act called the Bombay Agricultural
Produce Markets Act, 22 of 1939. On the bifurcation of that State on May 1, 1960 the new
State of Gujarat was formed.
◦ The Bombay Act of 1939 was extended by an appropriate order to the State of Gujarat by the
Government of that State. That Act remained in operation in Gujarat till September 1, 1964
on which date the Gujarat Agricultural Produce Markets Act, 20 of 1964, came into force.
Section 6
6. Declaration of market areas –
(1) After the expiry of the period specified in the notification issued under Section 5 (hereinafter referred to
in this section as ‗the said notification‘), and after considering the objections and suggestions received
before its expiry and holding such inquiry as may be necessary, the Director may, by notification in the
Official Gazette, declare the area specified in the said notification or any portion thereof to be a market area
for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said
notification. A notification under this section shall also be published in Gujarati in a newspaper having
circulation in the said area and in such other manner, as may be prescribed…….

…..(5) After declaring in the manner specified in Section 5 his intention of so doing, and following the
procedure therein, the Director may, at any time by notification in the Official Gazette, exclude any area
from a market area specified in a notification issued under sub-section (1), or include any area therein
and exclude from or add to the kinds of agricultural produce so specified any kind of agricultural
produce.
Appellant’s Arguments
◦ The concluding sentence of Section 6(1) says that a notification under "this
section" "shall also be published in Gujarati in a newspaper" having
circulation in the particular area.
◦ That "this section" means "this sub-section" so that the procedure in regard to
publication which is laid down in sub-section (1) of Section 6 must be
restricted to notifications issued under that sub-section and cannot be extended
to those issued under sub-section (5) of Section 6; and
◦ Assuming that the words "this section" are wide enough to cover every sub-
section of Section 6, the word "shall" ought to be read as "may".
 Holding
◦ It is not reasonable to assume in the legislature an ignorance of the distinction between "section" & " Sub
section”.
◦ If the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those
words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the
Legislature.
◦ The requirement to publish in Gujarati newspaper is "Mandatory".
◦ It is a matter of common knowledge that publication in a newspaper attract greater public attention than
publication in the Official Gazette. That is why the Legislature has taken care to direct that the
notification shall also be published in Gujarati in a newspaper.
◦ A violation of this requirement is likely to affect valuable right of traders and agriculturists because in the
absence of proper and adequate publicity, their right of trade and business shall have been hampered without
affording to them an opportunity to offer objections and suggestions, an opportunity which the statute clearly
deems so desirable.
 II. CONSULTATION
◦ Technique adopted by the legislature to control the exercise of power by executive.
◦ The process of consultation with affected individuals before delegated legislation or
statutory instrument is prepared.
◦ Visible safeguard against proper misuse of power by rule-making authority.
◦ The consultative technique is useful in balancing individual interests and
administrative exigencies.
◦ Democratization of delegated legislation – enhanced public participation.
◦ One way to minimize any objections being raised against executive law making.
 TYPES OF CONSULTATION
◦ No general minimum formalized consultative procedure imposed on rule-making authorities.
◦ Some statutes specifically provide for consultation:
1. Official Consultation - Section 52 - Power of Central Government to make rules - Banking
Regulation Act, 1949
2. Consultation with Statutory bodies – Section 6 (2) - The Central Drugs Laboratory.— The
Drugs And Cosmetics Act, 1940.
3. Consultation with Advisory bodies – setting up administrative boards to advise governments
and makes obligatory prior consultation with the boards before the Central Government can
make rules.
4. Draft rules by affected interests - Section 61 in The Mines Act, 1952.
The Mandatory or Directory Test
No hard and fast rule of universal application can be laid down as to when a
provision relating to consultation should be held as mandatory and when it
should be regarded as directory.
 Banwarilal Agarwalla vs. State of Bihar
Whether the the Coal Mines Regulations, 1957, are invalid having been framed in
contravention of s. 59(3) of the Mines Act, 1952?
◦ On February 20, 1958, there occurred in the Central Bhowra Colliery, in Dhanbad in Bihar an
accident as a result of which 23 persons lost their lives.
◦ After an inquiry under. a. 24 of the Mines Act, 1952, into the causes of and the circumstances
attending the accident, and the publication of the report of the inquiry, a complains was
prepared by the Regional Inspector of Mines, (Dhanbad, under the direction of the Chief
Inspector of Mines, Dhanbad, before the Sub-Divisional Officer, Dhanbad, against the
appellant for an offence under s. 74 of the Mines Act, 1952, for contravention of regulations
107 and 127 of the Coal Mines Regulations, 1957.
◦ Appellant’s Contention - The Coal Mines Regulations, 1957, are invalid having been framed in
contravention of a. 59(3) of the Mines Act, 1952.
Law Applicable
Section 59 empowers the Central Government to 'make regulations consistent with the Act for all or any of
the purposes mentioned therein, while s. 58 empowers the Central Government to make rules consistent with the
Act for all or any of the purposes mentioned therein. Section 59 after providing in its first sub-section that the
power to make regulations and rules conferred by sections 57 and 58 is subject to the condition of the regulations
and rules being made after previous publication-provides in its third sub. section further conditions as regards the
making of regulations. This sub-section runs thus:-
"Before the draft of any regulation if; published under this section it shall be referred to every Mining Board
which is, in the opinion of the Central Government concerned with the subject dealt with by the regulation,
and the regulation shall not be so published until each such Board has had a reasonable opportunity, of
reporting as to the expediency of making the same and as to the suitability of its provisions."
 Holding
◦ Legislative intent - The legislature, after saying in the first part of sub-s. (3), that before any regulation is published, it
"shall be" referred to every Mining Board which is, in the opinion of the Central Government concerned with the subject,
and goes on to say in the latter part, that the regulation "shall not" be published until each Board has had a reasonable
opportunity of reporting as to the expediency and suitability of the provisions.
◦ Arbitrary and haphazard regulations without full consideration of their practicability and ultimate effect on the
efficient working of the mines, would, apart from, often defeating the purpose of the Act, affect injuriously the
general economy of the country.
◦ It is true that the law does not require concurrence of the Board with the regulations proposed. It is reasonable to expect
however that when a Board has expressed an opinion in favour of the rejection or modification of a proposed
regulation, the department would not treat it lightly. But, even where the opinion expressed by the Board is not accepted
the very fact that there has been such an examination by the Board, and a consequent re. examination by the department is
likely to minimise the risks to public welfare.
Holding
That the provision under the Mines Act, 1952, before
framing regulations was mandatory and failure to consult
the Mining Boards (Constituted under Section 12 of the
Act) invalidated the regulations.
 Pre-natal Control - Legislative

◦ When Parliament delegates legislative authority to another authority, it must ensure that
those powers are properly exercised by the administration and there is no misuse of
authority by the executive.
◦ To keep a watch over rule-making authorities and also provide an opportunity to
criticize them if there is abuse of power on their part – legislative veto.
◦ Judicial Control over delegated legislation is not enough to keep administrative
agencies within the bounds of delegation.
 Laying on Table.

MODES
Scrutiny Committees.
 Informs the legislature about what rules
have been made by executive
authorities in exercise of delegated
legislative power.

Laying on the
Table It provides an opportunity to the
legislator to question or challenge rules
already made or proposed to be made.
Mandatory or Directory Test
◦ Depends on the scheme of the Act , the language used, consequences enumerated in the relevant law.
Atlas Cycle Industries vs. State of
Haryana
Whether the notification attempting to set the commodity’s maximum selling price is void for not being
laid before both parliamentary houses?
Whether the laying provision incorporated in Section 3(6) of the Essential Commodities Act, 1955 is
mandatory?
Facts
◦ On 29 December 1964, the Development Officer of the Directorate-General, Technical Development, New
Delhi, carried out a spot review of the balance sheet at Atlas Cycle.
◦ From a review of the books of accounts of the said appellant, it was discovered that from 1 January 1964 to 12
January 1965, the company had purchased 60.03 metric tons of plain iron sheets from multiple suppliers at a
rate higher than the maximum permissible price set for such sheets by the Iron and Steel Controller, by the
authority conferred by the Iron and Steel Control Order, 1956.
◦ Charges under Section 120B of Indian Penal Code read with Section 7 of the Essential Goods Act and Section
7 read with Section 15(3) of the Control Order are imposed by a special magistrate.
◦ The Appellants claimed the notification from the government that set the maximum selling prices of different
Iron & Steel categories, including the product in question in the present case, was not put before the parliament,
and was therefore not valid.
Provisions
The major provisions of the Essential Commodities Act, 1955 are:
Section 2 performs the function of the glossary for the act. Under clause (a)(vi) of that section, iron and steel and their manufactured
products fall within the scope of the phrase “essential commodity”.
Sub-section (1) of Section 3 of the Act gives the Central Government general authority to make and issue orders regulating or
prohibiting the manufacture, supply, and distribution of an essential commodity and trade and trade therein if it considers it necessary
or expedient to do so in order to maintain or increase the supply of any essential commodity or to ensure its equal distribution and
availability at reasonable prices, or to obtain any necessary resources for India’s defence or the successful conduct of military
operations.
Clause (c) of sub-section (2) of Section 3 of the Act provides for the issue of an order for the regulation of the price at which any
necessary product can be purchased or sold.

Sub-section (6) of Section 3 of the Act specifies that any order made with respect to this section by the Central
or any Central Government officer or authority shall be put before both Parliament Houses as soon as possible
after it has been made.
Section 5 of the Act provides for delegation of powers. It provides that, by notified order, the Central Government may direct that, in
connection with such matters and subject to certain conditions, the power to issue orders or notifications defined in section 3 may also
be exercised by (a) that officer or authority subordinate to the Central Government or (b) that State Government or that officer or
authority as may be specified in the Direction and is subordinate to the State Government.
Provisions
Section 6 of the Act embodying the non-obstante clause stipulates that every order made in accordance with section 3 shall have
force in spite of anything conflicting, found with it in any statute other than this Act or any instrument having an effect with
respect to any statute other than this Act – conflict with general law.
Section 7 of the Act provides for the penalties that are to be levied on any person who contravenes any order made under section
3.
Section 10 of the Act which deals with offences by the companies provides as follows-
If the person who contravenes with the order made in accordance with Section 3 is a company, every person who was
responsible for the conduct of the business of the company as well as the company at the time the contravention was committed
shall be deemed guilty of the contravention and shall be liable to be prosecuted and punished accordingly, provided that nothing
in this sub-section makes any such person liable for any punishment if he proves that the contravention occurred without his
knowledge or if he has exercised all due diligence in order to prevent such contravention.
Notwithstanding the provisions of sub-section (1), where an offence under this Act has been committed by a corporation and that
company’s owner, manager, secretary or other officers shall also be considered guilty of that offence and shall be liable for and
punished accordingly.
Appellant’s Allegations
◦ The control orders and notifications did not have legal force because they were not introduced within a
reasonable period before the House of Parliament under the Essential Commodities Act.
Respondent’s Arguments
◦ The provisions of sub-section (6) of Section 3 of the act, requiring that an order be placed before the House of
Parliament, are directory and not mandatory, and the failure to comply with that requirement did not invalidate
the notification
 Kinds of Laying Procedure
◦ Laying without further procedure: the rules and regulation comes into effect as soon as
they are laid. It is the duty of the regulation maker to merely inform the House about the
rules so formed. Therefore, this type of laying is merely directory in nature.
◦ Laying subject to negative resolution: in this, the instruments thus laid come into
operation as soon as they are laid before the parliament but are subject to annulment in
lieu of a resolution by either House of Parliament, if not disapproved within 40 days. It is
the most common type of laying procedure followed.
◦ Laying subject to affirmative resolution: this procedure has two parts, the first part,
states that unless approved by a resolution of each house of parliament, the regulation will
have no effect or force and the second part, states that the rules will cease to have effect
until approved by an affirmative resolution. (Art 352)
Judgement
◦ Sub-section (6) of Section 3 of the Act generally requires that any order made in accordance with
Section 3 by the Central Government, or any officer or authority of the Central Government shall
be brought before both Houses of Parliament and laid down as soon as possible after it has been
made.
◦ But it does not provide whether it would be subject to negative or affirmative resolution by
either House of the Parliament.
◦ It further does not specify as to the time during which the order has to be laid down before
both the houses nor does it specify the penalty for the non-compliance or non-observance with
the instructions for laying the order before both the Houses of the Parliament.
◦ The legislature’s intention was never to make the order or notification void by failing to comply
with section 3(6) of the Essential Commodities Act. Consequently, failure to submit the order or
notification before both Parliament Houses can not result in the notification being annulled
Why directory?
◦ In the absence of any provision of the contingency of a particular
provision not being complied with or followed
◦ Serious general inconvenience and prejudice caused to the public if the
act of the government is held to be invalid due to the said procedure.
◦ Section 3(6) of the Essential Commodities Act, merely provides to lay the said
order before the Parliament. It does not subject to any type of laying be it
affirmative or negative resolution by the Parliament,.
◦ Also, doesn’t stipulate the parliament can annul the order under Section 3.
 Conclusion of the Laying Procedure.
◦ In India, there is no constitutional requirement that allows all delegated
legislation to be ‘laid down.’ Therefore, in the absence of any general law
governing the laying procedure.
◦ Is it a counter productive exercise?
Scrutiny Committee
◦ Rules are properly scrutinized  View to strengthening Parliamentary control over delegated
legislation  Scrutiny Committees were established.
◦ Laying on the table procedure would not be of use  unless a scrutiny mechanism is put in
place.
◦ The Parliament  pressured for time cannot exercise effective supervision over delegated
legislation.
◦ India has two Scrutiny Committees – Lok Sabha Committee on Subordinate Legislation and
Rajya Sabha Committee on Subordinate Legislation.
◦ Function of the Committee  scrutinizing and reporting to the House whether the power to
make regulations, rules, etc. conferred by the Constitution or delegated by the Parliament has
been properly exercises within such delegation.
What do they look into?
◦ Is in accordance with the general object of the Constitution.
◦ Whether they believe that this subject matter should be properly dealt with by the Parliament.
◦ Bars jurisdiction of the court.
◦ Retrospective effect granted  in contravention with the parent act.
◦ Unusual or unexpected power conferred.
Based on their findings the Committee subjects a report in the House  but the Government
gives due weight to the views and findings and seeks to implement them.
They are instructive and informative in nature.
The Committee have evolved several propositions to improve rule-making by Government
agencies and also protect the interests of the individual.
 Post-Natal Safeguard – Substantive

◦ Substantive Ultra Vires.

◦ When a subordinate legislation goes beyond what the delegate is authorized to enact , it
acts ultra vires.
Grounds
Delegated legislation may be held invalid on the grounds of substantive ultra vires in the
following circumstances :
◦ When Parent act is unconstitutional.
◦ When Parent act delegated essential legislative functions.
◦ When DL is inconsistent with general law.
◦ Where DL is unconstitutional.
◦ Where DL is arbitrary.
◦ Where DL is unreasonable.
◦ Where DL is mala-fide.
◦ Where DL operated retrospectively.
 I. Constitutionality of the Parent Act
◦ For a delegation to be valid  parent act or enabling statute by which
legislative power has been conferred on the executive must be valid and
constitutional.
◦ If the delegating statute itself is invalid  is the delegated legislation valid?
◦ When is comes to the constitutional validity they need to look at the scope of
power conferred on a legislature and violates no restriction of that power  the
law must be upheld  irrespective of what the court might think of it.
◦ Parent act may be unconstitutional on several grounds:
a. Excessive delegation.
b. Breach of fundamental rights.
c. Any other ground; distribution of power between the center and the states.
 Chintaman Rao and Ors. vs. State of Madhya
Pradesh – Background
◦ The manufacture of bidis vs. the fundamental right to trade.
◦ Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural
Purposes) Act (LXIV of 1948)  Law prohibiting bidi manufacture during the
agricultural season in District Sagar (State of Madhya Pradesh).
◦ Section 3 & 4 of the Act grants power to the Deputy Commissioner to fix the period
as the agricultural season concerning certain villages where the Act applies.
◦ The Deputy Commissioner has the power to prohibit the manufacture of bidis and
no person is authorized to manufacture the bidis.
 Provisions
Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act
Preamble - it is stated that it has been enacted to provide measures for the supply of adequate
labor for agricultural purposes in bidi manufacturing areas.
S. 3. The Deputy Commissioner may by notification fix a period to be an agricultural season with
respect to such villages as may be specified therein.
S. 4. (1) The Deputy Commissioner may, by general order which shall extend to such villages as he
may specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season
engage himself in the manufacture of bidis, and no manufacturer shall during the said season
employ any person for the manufacture of bidis.
S. 7 – Contravention of any of these provisions is made punishable – Penalty being imprisonment for
a term which may extend to 6 months or with fine or both.
Chintaman Rao and Ors. vs. State of
Madhya Pradesh – Facts
◦ On 13th June 1950, an order was issued by the Deputy Commissioner of Sagar prohibiting the people in
certain villages to manufacture bidis  petition was filed in the SC challenging the order.
◦ During the pendency of the case  another order covering the agricultural period from 8 th October 1950
to 18th November 1950 was issued  subsequently challenged

◦ ISSUE: Whether the total prohibition of carrying on the business of

manufacture of bidis within the agricultural season amounts to a reasonable
restriction on the fundamental rights mentioned in Art. 19(1)(g) of the
Constitution?
Reasonable Restriction
◦ Reasonable Restriction – that the limitation imposed on a person in enjoyment of the right should not be
arbitrary or of an excessive nature, beyond what is required in the interest of the public.
◦ Restriction to be valid must have a direct and proximate nexus with the object which the legislation seeks to
achieve and the restriction must not be in excess of that object i.e.; a balance between the freedoms guaranteed
under Art. 19(1) (a) to (g) and the social control permitted by clauses (2) to (6) of Art. 19.
◦ The word “reasonable” implies intelligent care and deliberation.
HOLDING
◦ Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom guaranteed in art. 19 (1) (g) and the
social control permitted by cl. (6) of article 19.
◦ The statute in substance and effect suspends altogether the right mentioned in art. 19 (1) (g) during the
agricultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin.
◦ Other reasonable solution: Even in point of time a restriction may well have been reasonable if it amounted to a
regulation of the hours of work in the business.
◦ “A restriction may well have been reasonable if it amounted to a regulation of the hours of work in the business.
Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate
the hours of the working of the industry, would not have amounted to a complete stoppage of the business of
manufacture and might well have been within the ambit of clause (6). The effect of the provisions of the Act,
however, has no reasonable relation to the object in view but is so drastic in scope that it goes much more than
that object.”
HOLDING
◦ No reason for prohibiting them from carrying on their occupation.
◦ Compels people who have no connection to agricultural operations from engaging in the business of bidis
making and thus earning their livelihood.
◦ Provisions cannot be said to amounting to reasonable restrictions on the rights of the applicants.
◦ Statute is not in conformity with provisions of Part III.
◦ The language is employed is wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting the rights – held to be wholly void.
◦ The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive; it
is subject to the supervision by this Court. In the matter of fundamental rights, the Supreme Court watches
and guards the rights guaranteed by the Constitution and in exercising its functions it has the power to set
aside an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution. We are
therefore of opinion that the impugned statute does not stand the test of reasonableness and is therefore void
HOLDING – BUSINESS OWNERS
◦ A manufacturer of bidis residing in this area cannot import labour from
neighbouring places in the district or province or from outside the province.
◦ Such a prohibition on the face of it is arbitrary since it has no relation
whatsoever to the object which the legislation seeks to achieve and as such
cannot be said to be a reasonable restriction on the exercise of the right.
HOLDING – WORKERS
◦ The statute seeks to prohibit all persons residing in the notified villages during the agricultural
season from engaging themselves in the manufacture of bidis.
◦ There would be several infirm and disabled persons, several children, old women, and petty
shop keepers residing in these villages who are incapable of being used for agricultural labour.
◦ All such persons are prohibited by law from engaging themselves in the manufacture of bidis
and are thus being deprived of earning their livelihood.
◦ “It is a matter of common knowledge that there are certain classes of persons residing in every
village who do not engage in agricultural operations. They and their womenfolk and children
in their leisure hours supplement their income by engaging themselves in bidi business. There
seems no reason for prohibiting them from carrying on this occupation.”
HELD
◦ The statute as it stands, not only compels those who can be engaged in agricultural work from
not taking to other avocations, but it also prohibits persons who have no connection or relation
to agricultural operations from engaging in the business of bidi making and thus earning their
livelihood.
◦ The law even to the extent that it could be said to authorize the imposition of
restrictions regarding agricultural labour cannot be held valid because the
language employed is wide enough to cover restrictions both within and
without the limits of constitutionally permissible legislative action affecting the
right.
◦ These provisions of the statute, in our opinion, cannot be said to amount to
reasonable restrictions on the right of the applicants and that being so, the
statute is not in conformity with the provisions of Part III of the
Constitution.
II. Constitutionality of the Delegated
Legislation
◦ While the parent act may be Constitutional, the emanating delegated legislation may conflict with some
provision of the Constitution.
Air India vs. Nergesh Meerza, 1981
◦ Challenged the service rule forcing air hostesses to retire on the grounds of marriage, first pregnancy or 35
years of age, whichever occurred earlier. Challenged Regulations 46 and 47 of the Air India Employees
Service Regulations.
◦ On the grounds that the regulation created a substantial degree of disparity between Air Flight Pursers
and Air Hostesses .
◦ Within the Air Hostesses different operational standards dependent on whether one is working for Air India
International on the International circuit or Indian Airlines on the domestic circuit.
◦ Disparity on multitude of grounds such as promotional avenues, differential retirement ages,
conditions pertaining to termination of the Air hostesses' services in cases of pregnancy or marriage
(retirement age for them was 35 years as opposed to 58 for their “male counterparts” – according to
Regulation 46).
◦ The discretionary powers of the Managing Director who under Regulation 47 could increase the age
of retirement as per his own behest. An aspect which is contested by the petitioners as being arbitrary.
Relevant Provisions
Regulation 46 Air India Employees Service Regulations
◦ Retiring Age:
Subject to the provisions of sub-regulation (ii) hereof an employee shall retire from the service of the Corporation
upon attaining the age of 58 years, except in the following cases when he/she shall retire earlier:
(c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within four years of
service or on first pregnancy, whichever occurs earlier.
Regulation 47 Of Air India Employees Service Regulations
Extension of Service.
◦ Notwithstanding anything contained in Regulation 46, the services of any employee, may, at the option of the
Managing Director but on the employee being found medically fit, be extended by one year at a time beyond
the age of retirement for an aggregate period not exceeding two years, except in the case of Air Hostesses and
Receptionists where the period will be ten years and five years respectively.”
Facts
◦ Under Regulation 46, while the retirement age for Flight Pursers ( male cabin crew) was 58,
Air Hostesses (female cabin crew) were required to retire under three circumstances: (1) upon
reaching 35 years of age, (2) upon getting married, or (3) upon first pregnancy.
◦ The first round of proceedings took place before two Tribunals, which successively upheld the
Rules, making findings such as the need to cope with temperamental customers by getting
“young and attractive” air hostesses.

Issue: Whether Regulation 46 & 47 are violative of

Article 14 of the Constitution of India and thus ultra
vires in whole or part?
Line of Arguments
◦ Violative of Art 14 – not a reasonable classification.
◦ These regulations are arbitrary and unreasonable basis  thus by extension are
ultravires to Article 14.
◦ The issue of termination.
Line of Arguments – Air India
◦ Air India stressed the importance of beauty, youth and glamour as
important characteristics of inflight service.
Holding
◦ Art. 14 forbids hostile discrimination but not reason able classification. Thus, where persons belonging to a particular
class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public
interest to advance and boost members belonging to backward classes, such a classification would not amount to
discrimination having a close nexus with the objects sought to be achieved so that in such cases Art. 14 will be completely
out of the way.
◦ set of guidelines to assess whether the Air Hostesses and Air Flight Pursuers forged separate classes and by extension
checking the supposed violation of Article 14.
◦ By assessing their promotional avenues, starting salaries and entry level qualification they are deemed as two distinct
categories by the Court and thus the assertion of Article 14 being violated is rejected on the basis of reasonable and
intelligible differentia.
◦ “Having regard, therefore, to the various circumstances, incidents, service conditions, promotional avenues, etc. of the
AFPs and AHs, the inference is irresistible that AHs though members of the cabin crew are an entirely separate class
governed by different set of rules, regulations and conditions of service.” – Para 51.
◦ That the functions of the two, though obviously different overlap on some points but the difference, if any, is one of degree
rather than of kind.
◦ Not violative of Art. 14.
Holding
◦ Regulations is “arbitrary” according to Article 14 - under Article 14, the legislation will fail if it is “manifestly
unreasonable” or “absolutely unreasonable” or “absolutely arbitrary”.
On the Marriage Requirement:
“We do not think that the laws suffer from any constitutional infirmity as far as the issue of marriage within four years is
concerned. An AH continues her career between the age of 19 and 26 years, according to the legislation. Most AHs are
not just SSC, which is the basic requirement, but they have much higher credentials, and very few plan to marry after
joining the service immediately. Accordingly, the Law requires an AH to marry at the age of 23 if it has entered the
service at the age of 19, which is a very sound and salutary provision by all means.
In addition to enhancing the employee’s health, it aims to support and improve our family planning programme. Second,
if a woman marries near the age of 20 to 23 years, she becomes fully mature and there is every likelihood that such a
marriage will prove fruitful, all things being equal. Thirdly, the Corporation has rightly pointed out to us that if the
marriage bar is abolished within four years of operation, then the Corporation would have to incur considerable
expense either on a temporary or ad hoc basis in hiring additional AHs to replace the working AHs if they conceive and
any period short of four years will be too little time for the Corporation to phase out.”
Holding
◦ Men were not entitled to the same marriage requirements that, according to the Court, were
necessary for “health and family planning,”
First Pregnancy
◦ “It seems to us that under certain conditions, the termination of the services of an AH is not
only a callous and cruel act but an open insult to the most sacrosanct and revered institution
of Indian womanhood.”
◦ Termination after the first pregnancy to be unconstitutional.
Director’s Powers
The Court struck down the absolute authority bestowed upon the Director to terminate the work
of Air Hostesses, holding that the unchanneled discretion amounted to an undue delegation of
power.
 Held:
◦ Struck down the Air India and Indian Airlines Regulations on the retirement and pregnancy bar
on the services of air hostesses as unconstitutional on the ground that the conditions laid down therein
were entirely unreasonable and arbitrary.
◦ The Regulation on termination was found to be clearly violative of Article 14 of the Constitution 
having taken in service and after having utilised her services for four years to terminate her service if
she becomes pregnant amounts to compelling the air hostess not to have any children and thus
interfering with the ordinary course of human nature was found to be inherently wrong.
◦ Discretionary powers conferred on the managing director; the Regulation was found to be excessive
delegation by the court. The option to continue in service may be exercised in favour of one Air
hostess and not in favour of the other at the mercy of Director was found to be violation of Article 14.
III. Constitutionality - When there is excess of
power conferred by the enabling act.
V Sudheer vs. Bar Council of India, 1999
◦ Bar Council of India  Regulates the legal profession.
◦ 1961 – Advocates Act, 1961 - An Act to amend and consolidate the law relating to the legal practitioners and
to provide for the constitution of Bar Councils and an All-India Bar.
◦ Bar Council of India Training Rules, 1995  relating to training to entrants of legal profession are within the
competence of the Bar Council of India
Relevant Provisions
◦ Section 7 – Function of the Bar Council.
◦ Section 24 - Persons who may be admitted as advocates on a State roll: conditions that can be put on a person
wishing to practice law.
◦ Section 49 - General power of the Bar Council of India to make rules.

Bar Council of India Training Rules, 1995: These rules deal with the conditions and training process to be
undergone by a person before he can be enrolled as an advocate in a State Bar Council.
Before enrollment  One year training.
After enrollment  Another year of training  Certificate of Practice.
Petitioner’s Contention
◦ The Petitioners submitted that there is no power with the Bar Council of India to frame
the impugned rules.
◦ Section 7 of the Act lays down the statutory functions of the Bar Council of India 
The provisions do not entitle the Bar Council of India to frame rules prescribing a pre-
condition before enrolment of an applicant as an `advocate' under the Act by
requiring him to undergo pre-enrolment training and apprenticeship as laid down
under the impugned rules.
◦ Rules framed are so obnoxious, arbitrary, unreasonable and unworkable that they
violate the fundamental right of the petitioners under Article 14 of the Constitution of
India.
Issue
Whether the impugned rules are ultra vires the rule making power
of the Bar Council of India as available to it under the provisions
of the Act?
Holding – Legislative Intent
◦ Historical Background  Legislative Intent  Amend and consolidate the law relating to legal practitioners and
to provide for the constitution of Bar Councils and an All-India Bar. A Bill was introduced in the Parliament
seeking to implement the recommendations of the All-India Bar Committee made in 1953 after taking into
account the recommendations of the Law Commission on the subject of Reform of Judicial Administration.
◦ Bill was to introduce:
(1) the establishment of an All-India Bar Council and a common roll of advocates, an advocate on the common roll
having a right to practise in any part of the country and in any Court, including the Supreme Court;
(2) the integration of the bar into a single class of legal practitioners known as advocates;
(3) the prescription of a uniform qualification for the admission of persons to be advocates;
(4) the division of advocates into senior advocates and other advocates based on merit;
(5) the creation of autonomous Bar Councils, one for the whole of India and one for each State.
 Holding – Conditions set by the SBC
◦ 1961 to 1964, the State Bar Council, as a condition of enrolment, required an applicant to
undergo a course of training in Law and also required him to pass the examination after such
a training.
◦ But after 1964 till 1973, it was permissible for the State Bar Council to prescribe a course of
training in Law as a precondition for enrolment of a candidate and he was also required to
pass the requisite examination during the training or even after completion of the training
course and such examination could be prescribed by the State Bar Council concerned only.
◦ Advocates (Amendment) Bill, 1970  Section 24(1)(d) stood deleted. The said clause
entitled the State Bar Councils to frame Rules for prescribing pre-enrolment training and
examination subject to which a person would get qualified to be enrolled as an advocate on
the State roll.
Holding - Pre-enrolment training
◦ Pre-enrolment training - The Bar Council of India has decided that in future a degree in Law can be obtained
only after undergoing a three-year course of study in Law after graduation as a result of which the age of entry
into the legal profession becomes much higher than the age of entry in other professions. It is, therefore, felt
that after a three- year course in Law in a University it is not necessary to retain the statutory provision in the
Act requiring a further examination or practical training.
◦ Practical Training  Bar Council  recommended syllabus to law schools  became redundant for providing
further practical training before enrolment of such trained graduates in Law.
◦ After 31st January, 1974, the legislature did not think it fit to clothe the State Bar Councils with the power to
prescribe any pre-enrolment training and examination to be undergone by an applicant for enrolment as an
Advocate on the State roll.
◦ From 1964 till the end of 1973, the Bar Council of India had rule making power to exempt those persons who
were otherwise required to undergo pre-enrolment training and passing an examination as prescribed by the
State Bar Councils under Section 24 (1)(d).
 Holding – Bar Council Rules
◦ 19th July, 1998  Enacting the Bar Council of India Training Rules, 1995  provided for certain pre-conditions to be
complied with by an applicant to be enrolled on the roll of the State Bar Council.
◦ Pre-Enrolment Procedure: while undergoing training, the trainees shall be enrolled provisionally as Trainee Advocates after
approval of name of their guides by the State Bar Council and the State Bar Council shall issue identity card to said provisionally
enrolled Trainee advocates for their identification. Detailed procedure has been laid down how a trainee advocate has to function
during the period of training. Such candidate has to maintain two types of diaries as approved by the State Bar Council - one for
the work done in chambers and the other for the work in Courts  Period of 1 year.

◦ All that the Bar Council of India can do is to suggest ways and means to promote such legal
education to be imparted by the Universities and for that purpose it may lay down the standards of
education, syllabi in consultation with the Universities in India. It is, therefore, difficult to appreciate
how for promoting legal education through the Universities imparting legal education in India, the
Bar Council of India can itself take up the role of laying down pre- enrolment training for applicants
seeking to enter legal profession by getting enrolled under Section 24 of the Act.
 Held
◦ That neither of these statutory provisions entitles the Bar Council of India to provide for the disqualification or a disability or an
additional condition for enrolment of a person who is otherwise eligible to be enrolled as an advocate under Section 24(1). Once
that conclusion is reached, the very foundation for supporting the impugned rules gets knocked off --. ultra vires the statutory
functions
◦ Recommendations made by the High Power Committee could have been put into practice by following appropriate methods and
adopting appropriate modalities by the Bar Council of India. Unfortunately, the attempt made by the Bar Council of India by
enacting the impugned rules has resulted into firing at the wrong end though backed up by a very laudable purpose.
◦ The impugned rules can be suitably re-enacted by deleting the condition of pre-enrolment training to advocates and
instead of treating them to be a hybrid class of trainee advocates with limited right of audience in courts, may provide in-
practice training to already enrolled advocates atleast for the first year of their practice as professionals . Such rules can
also provide for appropriate stipend to be paid to them by their guides, if during that period such enrolled junior advocates are
shown to have no independent source of income.
◦ It concluded that the training rules of 1995 weren’t violating article 14 and 19(1) (g) of the Indian Constitution. A right to
practice law isn’t an absolute and unconditional right. Given the fact that in litigation, the quality of life of the clients are at
stake, a training period for the fresh entrants will only aid the entrants to hone their technical and other relevant legal skills.
 2021 – Updates
◦ 18th Jan 2021 - petition challenging the All-India Bar Examination Rules 2010 which require an advocate to
qualify for the All-India Bar Examination (AIBE) within two years after enrolment to a State Bar Council.
◦ Petition filed  Parthsarthi Mahesh Saraf a new advocate who enrolled in 2019.
◦ The petition challenges the Bar Council of India’s authority to prescribe a post-enrollment qualification for
practising law. It also seeks a stay on the Bar Council’s December 21, 2020 notification which announces
that the AIBE will be conducted twice.
◦ The exam was first introduced in 2010 after the Bar Council inserted Rules 9 to 11 in Part VI, Chapter III of
the Bar Council of India Rules on Conditions for the Right to Practice.
◦ It is conducted by the Bar Council twice a year to test the candidates’ knowledge on various substantive and
procedural law such as constitutional law, administrative law, the Indian Penal Code, criminal and civil
procedure, evidence, public interest litigation, and professional ethics.
◦ Once an advocate has cleared the exam  certificate of practice deeming them fit to practice law in India is
issued.
◦ Citing the V Sudheer case  Bar Council cannot make subordinate rules
imposing additional conditions for advocates contrary to the Advocates Act of
1961.
◦ Most commonwealth countries prescribe a bar examination as a precondition
for enrolment. Even the High-Powered Committee appointed by the Supreme
Court of India in 2009 recommended training and examination prior to
enrolment.
◦ The Bar Council has ignored the recommendations and established the
precedent of the court and has instead imposed post-enrolment
qualifications.
◦ Similar petition filed in 2016  regarding the effectiveness of the bar exam as
a form of certification.
 Dwarka Nath vs. Municipal Corp of Delhi
◦ M/s. Mohan Ghee Laboratories carrying on business in Pure Desi Ghee, in Gurdwara Road, New Delhi.
On December 29, 1962 at about 12 50 p. m. five Food Inspectors of the respondent visited the
Laboratories of the appellants at Gurdwara Road, and all of them purchased ghee from different containers
on payment of price.
◦ The Public Analyst tested the sample on January 3, 1963 and reported that all the five samples taken by
the five Food Inspectors and sent to him conformed to standard.
◦ The Food Inspectors had also seized the labelled tins from which samples of ghee had been taken
◦ The sealed tin of pure ghee from which the sample was taken had a label, but it did not conform to the
packing and labelling Rules under the Act inasmuch as the name and business address of the manufacturer
or packer or vendor and batch or Code numbers had not been specified on the label as required under Rule
32(b) and (e) of the Rules ; and that the appellants are guilty for non-observance of the Labelling Rules.
◦ The appellants contended that Rule 32 (b) and (e) is beyond the rule making power conferred u/s. 23(1)(d)
of the Prevention of Food Adulteration Act, 1954.
Provision
"23(1) Power of the Central Government to make rules: The Central Government may, after consultation with the Committee and
subject to the condition of previous publication, make rules-
(c) laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class
of articles of food which the Central Government may, by notification in the Official Gazette. specify in this behalf including
registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of
the healthy state of human beings associated with the production, distribution and sale of such article or class of articles.

(d) restricting the packing and labelling of any article of food and the design of any such package or
label with a view to preventing the public or the purchaser being deceived or misled as to the character,
quality or quantity of the article
(f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or
restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the
manufacture or sale of any article of food ;
(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health."
 Provision – Labelling Rules
Rule 32 : Contents of the label-
Unless otherwise provided in these rules there shall be specified on every label:-
(b) the name and business address of the manufacturer or importer or vendor or packer,
(e) a batch number or code number either in Hindi or English numericals or alphabets or in combination :
Provided that in the case of food package weighing not more than 60 grams particulars including the statement
under any clause need not be specified.
Explanation -The term 'label' means a display of written, printed, perforated, stencilled, embossed or stamped
matter upon the container, cover lid and/ or crown cork of any food package."
 Holding – 32(e)
◦ The label contained the words "pure ghee" and on analysis of the, sample it has been found to conform to the standard.
◦ Not established how the giving of the batch number or the code number alone without giving any further particulars such as
date of manufacture of the article of food and the period within which the said article has to be utilised, used or consumed
and the quantity of the article in a container, will prevent the public or the purchaser being deceived or misled as to the
character, quality or quantity of the article.
“We are not able to find anything in Clauses (c), (f) and(g) of S. 23(1) of the Act, which will give power to the Central
Government to frame rules requiring the name and business address of manufacturer or vendor being given ; or for Batch
Number or Code number being given on the labels. Clause, (c) deals, with provisions for imposing rigorous control over
production, distribution and sale of any article or class of articles. of food notified by the Central Government in the Official
Gazette.”
“No attempt has been made by the respondent to establish any relation between the giving of the batch number or the code
number with the public or the purchaser being prevented from being deceived or misled in respect of the matters referred to in
Cl. (d). We are not able to find any rational or even a remote connection between the batch or code number artificially given
by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or
quantity of the article, contained in a sealed tin.”
Holding – 32(e)

“It is also admitted that even assuming that the batch or code number has to be given, there is no further
obligation to specify in the label the date of packing and manufacture of the article of food or the period
within which the article of food has to be utilised, used or consumed. In the absence, of any obligation to
give the particulars mentioned by us above, the public or the purchaser will not be able to find out even the
freshness of the contents of a container. Therefore, it follows that merely giving an artificial batch number
or code number will not be of any use to the public or to the purchaser. In view of all these circumstances
we are of the opinion that rule 32(e) is beyond the rule making power even u/s. 23(1)(d) of the Act.”
Holding - 32(b)
◦ Cl. (b) of Rule 32 requires that the name and business address of the manufacturer, or
importer, or vendor or packer be given on every label.
◦ “It is well known that in many cases in business the name and address of a manufacturer,
or importer, or vendor or packer has become associated with the character, quality or
quantity of the article and as such we are of the opinion that Cl. (b) of Rule 32 is a valid
rule.”
“there is a technical breach of Cl. (b) of Rule 32 inasmuch as full particulars, referred to above,
have not been given by the appellants in the label. No doubt, the appellants have been convicted
for breach of Cls. (b) and (e) of Rule 32 and a fine of Re. 1 has been imposed. We have already
held that Cl. (e) of Rule 32 is invalid and the appellants cannot be convicted for non-compliance
of the same.”
 IV. Retrospective Application of Rules
◦ No prohibition in the Constitution against ex-post facto laws. Any
exceptions? (Art. 20(1)).
◦ Early Judicial Principle: Legislature may enact laws retrospectively, but a
delegate cannot  unless the parent statute gives it the power to do so
either expressly or by necessary implication.
◦ Rationale: retrospective rules may prejudicially impact vested rights 
responsibility should rest with the Legislature  not the delegate.
◦ ”Carry out the purpose of the act…”
State Of Madhya Pradesh vs
Tikamdas
◦ The respondent obtained a licence for the sale of foreign liquor (in Form -F, L. 3) issued under
the Foreign Liquor Rules framed under the Madhya Pradesh Excise Act, 1915 (Act II of
1915).
◦ The licence which he held was for one year from April 1, 1963 to March 31, 1964  Obtained
a fresh license for a period of one year from April 1964. Government was entertaining the idea
of enhancing the scales of licence fee for the various kinds of foreign liquor.
◦ The balance quantity left over with the respondent at the end of the licensed period, viz.,
March 31, 1964 was checked by the concerned Excise Officials and a panchnama prepared in
that behalf. Ordinarily, the surplus stock has to be surrendered by the licensee but, on an
undertaking to pay the difference in the event of an enhancement of the rates, the bar owner
was permitted to keep on his premises the balance quantity.
State Of Madhya Pradesh vs
Tikamdas
◦ The Excise Act and the Foreign Liquor Rules made thereunder govern sales of these intoxicants and
Form F.L.3 applies to bars which sell foreign liquor for consumption on the premises.
◦ On April 25, 1964, the Government, by virtue of its powers under the Act, amended in certain respects
the Foreign Liquor Rules.
◦ One such amendment concerns the scale of fees in respect of licence in Form F.L.3  The rule itself
although promulgated on April 25, 1964 was given effect retrospectively from April 1, 1964.
Relevant Provision
◦ S. 62  The State Government may make rules for the purpose of carrying out the provisions of the Act
(s.62). Such rules may regulate the amount of fee. the terms and conditions of licences and the sale of
fees and the manner of fixing the fees payable in respect of such licences [62 (g) and (h) 1. This
provision, by itself. does not expressly grant power to make retrospective rules.
◦ S.63 specifically states that ' all rules made and notifications issued under this Act shall be
published in the Official Gazette, and shall have effect from the date of such publication or
from such other date as may be specified in that behalf.'
Amendments – Foreign Liquor Rules
◦ On April 25, 1964, the Government, by virtue of its powers under the Act, amended in certain
respects the. Foreign Liquor Rules. One such amendment concerns the scale of fees in respect
of licence in Form F.L. 3, an upward revision having been effected. The rule itself, although
promulgated on April 25, 1964 was given effect retrospectively from April 1, 1964. Apart
from raising the rates. Rule IV was also amended by the addition of the following provision at
the end of it :

The licensee shall be liable to pay the difference of fees per bottle on the balance of stocks of
foreign liquor in the event of the enhancement of the scale of fees during the currency or on
expiry of the licence.
Respondent’s Arguments
◦ Despite the undertaking given to comply with such enhanced demand, the hotelier resisted it
and took up the stand that the balance stock had already been subjected to licence fee when it
was brought in and that the subsequent raising of the rate of licence fee could not be applied
validly to such stocks.
◦ Since the State insisted on levying at the larger rate even on the balance stock held on March
31, 1964
Holding
◦ Subordinate legislation made by a delegate cannot have retrospective effect
unless the rule-making power in the concerned statute expressly or by necessary
implication confers power in this behalf  Test for Retrospective Application.
◦ Looking at S. 63  Legislature has empowered its delegate, the State Government,
not merely to make the rules but to give effect to them from such date as may be
specified by the delegate.
◦ This provision regarding subordinate legislation does contemplate not merely the
power to make rules but to bring them into force from any previous date.
◦ Rules are not Ultra Vires the Excise Act.
B. S. Yadav v. State of Haryana, AIR 1981
SC 561
◦ The case involved the rules governing seniority between direct recruits and promotees appointed to the superior
judicial services of the States of Punjab and Haryana.
◦ The Punjab Superior Judicial Service Rules were promulgated by the State of Punjab in 1963 under article 309
Constitution. They were amended from time to time, at times retrospectively. When the State of Haryana was
created on 1 November 1966, the Punjab rules as amended till that date were adopted by Haryana. It also amended
the rules from time to time, also a retrospectively.
◦ On 31 December, 1976 the Punjab rules were amended retrospectively with effect from 9 April, 1976. Till that
amendment the position was that seniority of the members of the judicial service depended on the date of
confirmation, but by the aforesaid amendment the seniority was to be determined by the length of continuous
service in a post in the service irrespective of the date of confirmation – inn consultation with the HC.
◦ On April 21, 1972 the Governor of Haryana, in exercise of the powers conferred by the proviso to Article 309 of
the Constitution and all other powers enabling him in that behalf, amended the 1963 Rules by the Haryana First
Amendment Rules, 1972, with retrospective effect from April 1, 1970.
 Facts
◦ Ever since November 1, 1966 when the State of Haryana was formed, there has been a common High Court for the
States of Punjab and Haryana called the High Court of Punjab and Haryana.
◦ Two separate High Courts were not created for these two States probably because of considerations of viability in
regard to one of the States and the need to foster a spirit of national integration.
◦ But the fact of there being two separate Governors for the two States with independent powers under the proviso
to Article 309 of the Constitution has made the task of the High Court difficult and unenviable.
◦ The Chief Justice and Judges of the Common High Court of the two States are faced with the predicament of
applying one set or service rules to members of the Superior Judicial Service of one State and a totally
different, and to a large extent opposite, set of rules to those of the other State.
◦ Haryana First Amendment Rules, 1977, 'cadre post' means a permanent post in the Service. Temporary posts are not
cadre posts in Haryana. In Punjab, 'cadre post' means both permanent and temporary posts in the Superior Judiciary.
◦ The definition of 'cadre post' has a significant bearing on the fortunes and future of judicial officers.
Facts
In regard to the rule of seniority, the position as it obtains in the two States is fundamentally different:
◦ In Punjab, under rule 12 as amended on December 31, 1976 with retrospective effect from April 9, 1976,
seniority is determined by the length of continuous service on a post irrespective of the date of confirmation.
◦ In Haryana, rule 12 as it stood originally was revived with effect from April 1, 1976 with the result, that
seniority of judicial officers in the Superior Judicial Service is determined with reference to the dates of
confirmation.
Art 309
Recruitment and conditions of service of persons serving the Union or a State Subject to the
provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and
conditions of service of persons appointed, to public services and posts in connection with the affairs
of the Union or of any State
Provided that it shall be competent for the President or such person as he may direct in the case of services
and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he
may direct in the case of services and posts in connection with the affairs of the State, to make rules
regulating the recruitment, and the conditions of service of persons appointed, to such services and posts
until provision in that behalf is made by or under an Act of the appropriate Legislature under this article,
and any rules so made shall have effect subject to the provisions of any such Act
Art 235
Control over subordinate courts :

The control over district courts and courts subordinate thereto including the posting and
promotion of, and the grant of leave to, persons belonging to the judicial service of a State and
holding any post inferior to the post of district judge shall be vested in the High Court, but
nothing in this article shall be construed as taking away from any such person any right of
appeal which he may under the law regulating the conditions of his service or as authorising the
High Court to deal with him otherwise than in accordance with the conditions of his service
prescribed under such law
Holding
◦ The frequent amendments to the rules which are often given a long retrospective effect, as long as seven years, makes the
High Court's administrative task difficult.
◦ And if the amendments are made either without consulting the High Court or against its advice, the High Court has a
delicate task to perform because if it adheres to its opinion, it is accused of bias and if it gives up its stand, it is accused of
being weak kneed and vacillating.
◦ “That is hardly conducive to the sense of discipline and the feeling of brotherhood which ought to animate the Judiciary.
Surely, the State Governments of Punjab and Haryana could have saved the High Court from this predicament by evolving
a common set of rules of seniority, at least in the name of national integration. There is nothing peculiar in the soil of
Punjab and nothing wanting in the soil of Haryana to justify the application of diametrically opposite rules of service to
the judicial officers of the two States.”
◦ “The territories comprised in these two States were at one time, and that too not in the distant past, parts of the territory of
the same State of Punjab. The promotees, at any rate, who figure in these proceedings, all flowered on the soil of Punjab
but are not told that their claim to seniority will depend upon whether they remained in Punjab or were allotted to
Haryana.”
Holding
◦ This unfortunate position has arisen largely because of the failure of the State Governments to take the
High Court into confidence while amending the rules of service.
◦ Neither promotees nor direct recruits felt secure about their existing rank or seniority because the rules were
being amended from time to time, sometimes just to suit the convenience, sometimes to tide over a temporary
crisis, sometimes to appease a class of officers who shouted louder and at least once in order to strike at an
individual.
Holding – Who decides seniority?
◦ Whether the determination of seniority of the members of the Service is a matter which is within the exclusive
jurisdiction of the High Court as a necessary consequence of the control vested in it by virtue of Article 235 of
the Constitution of India?
◦ Then it is plain that any intrusion into the field of this control by any agency other than the High Court would
be unwarranted and therefore, unconstitutional.
◦ “We are of the firm view that both on principle and logic and in view of the trend of the present authorities, it
appears to be plain that the Seniority of the members of the judicial Service is so integral and vital to the
control of the High Court over them, that any erosion thereof would both be violative of Article 235 of the
Constitution and equally run counter to the settled concept of the independence of judiciary which is now
coming to be recognised as the basic feature of the Constitution.”
◦ It appears to us that what the State Government cannot do directly, it cannot be allowed to do indirectly by
framing rules even by the exercise of executive power vested in it by virtue of Article 309 and without even
consulting or informing the High Court.
 Who has law making powers?
◦ On a plain reading of Articles 235 and 309 of the Constitution, it is clear that the power to frame rules regarding
seniority of officers in the judicial service of the State is vested in the Governor and not in the High Court.
◦ Not the High Court because, there is no power in the High Court to pass a law, though rules made by the High Court in
the exercise of power conferred upon it in that behalf may have the force of law.
◦ “Does not confer upon the High Courts the power to make rules relating to conditions of service of judicial officers
attached to district courts and the courts subordinate thereto. Whenever, it was intended to confer on any authority the
power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has
stated so in express terms.”
◦ 309 on the other hand - It provides that Acts of the appropriate legislature may regulate the recruitment and conditions
of service of persons appointed to posts in connection with the affairs of the Union or of any State.
◦ A combined reading of Articles 235 and 309 will yield the result that though the control over Subordinate
Courts is vested in the High Court, the appropriate legislature, and until that legislature acts, the Governor of
the State, has the power to make rules regulating the recruitment and the conditions of service of judicial
officers of the State.
Holding – Retrospective Application
The Governor exercises a Legislative power under the proviso to Article
309 of the Constitution, it is open to him to give retrospective operation to
the rules made under that provision. But the date from which the rules are
made to operate must be shown to bear, either from the face of the rules
or by extrinsic evidence, reasonable nexus with the provisions contained
in the rules, especially when the retrospective effect extends over a long
period as in this case. No such nexus is shown in the present case on
behalf of the State Government  New principle for Retrospective
Application.
 A.V. Nachne vs. Union of India
◦ The Life Insurance Corporation was constituted under the Life Insurance Corporation Act 1956, to provide for the
nationalisation of life insurance business in India by transferring all such business to the Life Insurance Corporation of
India.
◦ Section 49(1 ) empowered the Life Insurance Corporation of India to make regulations for the purpose of giving effect to
the provisions of the Act.
◦ Two settlements were reached on January 24, 1974, and February 6, 1974, between the Life Insurance Corporation and
its Class III and Class IV employees - DJ Bahadur Case. These settlements covered a large ground including the claim
for bonus. These were settlements under section 18 read with section 2(p) of the Industrial Disputes Act 1947. Clause 12
of the settlements, the settlements were to be effective from 1st April 1973 for a period of four years that is, from 1st
April 1973 to 31st March 1977.
◦ In 1975, the Payment of Bonus (Amendment) ordinance was promulgated which was subsequently replaced by the
Payment of Bonus (Amendment) Act 1976. The Central Government decided that the employees of establishments not
covered by the Payment of Bonus Act would not be liable to get bonus and ex-gratia payment in lieu of bonus.
◦ Payment of Bonus for the financial year 1975-1976 to the employees of the Corporation was stopped under
instructions from the Central Government.
Facts
◦ Power under s. 49  issued two new regulations  amended the Life Insurance Corporation(Alteration of
Remuneration and other Terms and Conditions of Service of Employees) order, 1981 ensure that the
employees of the Corporation shall not be entitled to any profit-sharing bonus & payment of any non-profit
bonus to the employees was to be decided by the corporation after giving due consideration to the financial
condition of the corporation
Provisions
◦ Section 49  “The Corporation may, with the previous approval of the Central Government, by
notification in the Gazette of India, make regulations not inconsistent with this Act and the rules made
thereunder to provide for all matters for which provision is expedient for the purpose of giving effect to
the provisions of this Act.”
◦ Section 48 (3)  “Every rule made by the Central Government under this Act shall be laid, as soon as
may be after it is made, before each House of Parliament while it is in session, for a total period of
thirty days which may be comprised in one session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case
may be; so, however, that any such modification or annulment shall be without prejudice to the validity
of anything previously done under that rule”.
◦ Section 48 by The Life Insurance Corporation (Amendment) ordinance,
1981:
Sub-clause(c) was inserted in sub-section 2 with retrospective effect from
20thJune 1979.

◦ Life Insurance Corporation of India Class III and Class IV Employees

(Bonus and Dearness Allowance) Rules 1981:
Rule 3(1)which states “No Class Ill or Class IV employee of the Corporation
shall be entitled to the payment of any profit-sharing bonus or any other kind of
cash bonus”
Holding – On Retrospective Application
◦ The rules made subsequent to the amendment cannot supersede the settlements retrospectively & can only have
prospective effect from the date of publication of the Life Insurance Corporation of India Class III and Class IV
Employees (Bonus and Dearness Allowance) Rules, 1981.
◦ The decision clearly mentioned that the employees are entitled to be paid the bonus earned by them & the Life
Insurance Corporation of India was under an obligation to pay the bonus in terms of the writ issued in D. J. Bahadur’s
case.
◦ The Court further went on to state that The Life insurance Corporation (Amendment) Act, 1981 and the Life Insurance
Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 are relevant
legislation but rule 3 operating retrospectively cannot nullify the effect of the writ issued in D. J. Bahadur’s case.
◦ A retrospective amendment in Life Insurance Corporation of India Class III and IV Employees (Bonus and
Dearness Allowance) Rules, 1981 cannot nullify the effect of writ issues by the court in an earlier case.
Miss Raj Soni vs. Air Officer Inn-Charge,
1990
◦ Petitioner retired from the post of teacher in the Air Force Central School, New Delhi on her attaining the age
of 58 years.
◦ Under the Delhi Education Code read with the Delhi Education Act, 1973 (hereinafter called the 'Act') and the
Delhi Education Rules, 1973 (hereinafter called the 'Rules') the age of superannuation for the teachers who
joined service before the coming into force of the Act is 60 years and as such the management of the school
acted arbitrarily in depriving her of two years of service and consequential benefits.
◦ The petitioner was initially appointed for a period of five years. On completion of the said period in 1961 the
contract was renewed for a further period of five years. Thereafter she continued in service of the school on
regular basis till the retirement dated October 31,1981.
◦ The petitioner has averred that prior to coming into force of the Act the conditions of service of the teachers of
the school provided 60 years as the age of superannuation.
Provisions
◦ With a view to provide uniformity and security of service to the teachers of recognised schools, the Delhi
Administration laid down model conditions of service including age of superannuation for the
teachers/employees.
◦ Section 208 of the Code is as under:
"Section 208. The normal age of retirement of an employee of an aided school (including the head of the School)
shall be the date on which he attains the age of 60. But an employee may be retired any time between the age of
55 & 60 years on grounds of inefficiency, incompetence, or physical unfitness after he has been given a
reasonable opportunity to show cause against the proposed retirement and after his representation, if any, has
been duly considered."
Respondent’s Contentions
◦ The school management was following the practice of retiring the teachers on attaining the age of 58 years with
some exceptions where extensions were given upto the age of 60 years.
◦ The school is being run by a private management, there is no Government control in the management of the
school and no aid of any kind is being given to the school.
◦ The management of the school is neither State nor an authority under Article 12 of the Constitution of India and
as such no writ petition against the respondent-management is maintainable  complete control over the
school by the Air Force.
Holding
◦ Respondent has not produced any Rules or bye-laws either framed by the management itself or
otherwise to show that there was any uniform provision for retirement of teachers at the age of
58 years.
◦ The age of superannuation cannot be left to the whims of the employer to enable him to retire
different employees at different ages.
◦ In the absence of any regulation, Bye-laws or policy decision by the management regarding
the age of superannuation  the management was following the Delhi Education Code which
provided 60 years as the age of superannuation for the schoolteachers.
◦ The petitioner being an existing employee was entitled to be retired at the age of 60 years.