The delegation can be challenged in the courts of law as being unconstitutional, excessive or arbitrary. The scope of permissible delegation is fairly wide. Within the wide limits, delegation is sustained it does not otherwise; infringe the provisions of the Constitution.
The limitations imposed by the application of the rule of ultra vires are quite clear. If the Act of the Legislature under which power is delegated, is ultra vires, the power of the legislature in the delegation can never be good. No delegated legislation can be inconsistent with the provisions of the Fundamental Rights.
If the Act violates any Fundamental Rights the rules, regulations and bye-laws framed there under cannot be better. Where the Act is good, still the rules and regulations may contravene any Fundamental Right and have to be struck down. Besides the constitutional attack, the delegated legislation may also be challenged as being ultra vires the powers of the administrative body framing the rules and regulations. The validity of the rules may be assailed as the stage in two ways:— (i) That they run counter to the provisions of the Act; and (ii) That they have been made in excess of the authority delegated by the Legislature. The method under these sub-heads for the application of the rule of ultra vires is described as the method of substantive ultra vires. Here the substance of rules and regulations is gone into and not the procedural requirements of the rule marking that may be prescribed in the statute. The latter is looked into under the procedural ultra vires rule.
When the Court applies the method of substantive ultra vires rule, it examines the contents of the rules and regulations without probing into the policy and wisdom of the subject matter. It merely sees if the rules and regulations in their pith and substance are within the import of the language and policy of the statute. The rules obviously cannot go against the intent of statute and cannot be inconsistent with the provisions of the Act. They are framed for giving effect to the provisions of this Act and not for nullifying their effect and they should not be in excess of the authority delegated to the rulemaking body.
Delegated legislation should not be characterised with an excessive exercise of discretion by the authority. The rules cannot be attacked to the general plea of unreasonableness like the bye-laws framed by a local body. Reasonableness of the rules can be examined only when it is necessary to do so for purpose of Articles 14 and 19 of the Constitution. The rule of procedural ultra vires provides with a very limited method of judicial control of delegated legislation Often there are specific saving clauses barring the jurisdiction of the courts to question the validity of rules and orders. For example, Section 16 of the Defence of India Act, 1939 lay down as follows: “16 Saving as to orders- (1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.
(2) Where an order purports to have been made and signed by any power conferred by or under this Act, a Court shall, within the meaning of Indian Evidence Act, 1872, presume that such order was so made by that authority.” Such provisions can only be justified— (i) On the basis of special circumstances of emergency legislation, and (ii) On the plea of State necessity. Illustrative cases: Kruse.
v. Johnon- It was laid down that a bye-law would be unreasonable if it is found to be (i) partial or unequal i.e. its operation as between different classes; (ii) manifestly unjust: (iii) disclosing bad faith; and (iv) involving such oppressive or gratuitous interference with the right of the people that it could find no justification in the minds of reasonable men.
Delhi Laws Act Case:
In this case the power given to the Central Government to repeal pre-existing laws was held to be ultravires.
Chintaman Rao’s Case:
(1951 S.C.I 18) Article 13 has a specific impact upon the validity of all the rules and bye-laws.
In Chintaman Rao’s case the notification of a Deputy Commissioner prohibiting the manufacture of bee dies during the agriculture season was invalidated on the ground of its violating Article 19 (1) (g).
Chadran v. R. (1952) Alld. 793:
A rule or bye-law must be within the power entrusted to the legislature. For example an Act of the U.P.
State was devised to control the transport of goods and passengers by ferries and authorised the Commissioner to make rules for the safety of the passengers and property. But actually the Commissioner forbade the establishment of private ferries within a distance of two miles from another ferry. That rule was struck down.