Executive Orders on rulemaking
📘 Executive Orders on Rulemaking
✅ I. What is Rulemaking?
Rulemaking refers to the process through which rules, regulations, and subordinate legislation are made by executive authorities under powers delegated to them by statutes.
In India, executive rulemaking typically involves:
Ministries, departments, and administrative agencies formulating rules under enabling legislation (e.g., Environment Protection Act, Income Tax Act).
Executive orders, circulars, notifications, and administrative instructions may be issued to fill gaps, clarify provisions, or implement law.
✅ II. What are Executive Orders?
Executive Orders are non-legislative, non-judicial directives issued by the executive to govern internal functioning, administration, or implementation of existing laws.
These do not go through the legislature, but must not contradict any law or constitutional provision.
Executive orders may include:
➤ Circulars
➤ Office Memoranda
➤ Notifications
➤ Government Resolutions
➤ Departmental guidelines
✅ III. Legal Status of Executive Orders in Rulemaking
They are binding on subordinate officials and departments.
Cannot override existing statutes.
Subject to judicial review if arbitrary, discriminatory, or violative of fundamental rights.
May not always have statutory force, unless issued under a delegated legislative power.
🔍 IV. Case Laws on Executive Orders and Rulemaking
1. B. Prabhakar Rao v. State of A.P. (1985) 1 SCC 432
Facts:
The Andhra Pradesh government issued an executive order increasing the retirement age, then later reversed it via another executive order without amending the statute.
Judgment:
The Supreme Court held that once a statutory rule is framed, it cannot be overridden by an executive order. The executive is bound by the rules made under Article 309 of the Constitution.
Key Takeaway:
🔹 Executive orders cannot nullify or modify statutory rules.
2. State of Madhya Pradesh v. G.C. Mandawar (1954) SCR 1046
Facts:
Disparity in pay scales was challenged, arising from executive orders issued under different statutes.
Judgment:
The Court held that executive orders cannot violate Article 14 (equality) and must maintain fairness.
Key Takeaway:
🔹 Executive discretion in rulemaking must not result in unconstitutional classification or discrimination.
3. Union of India v. Charanjit S. Gill (2000) 5 SCC 742
Facts:
Challenge was made against an executive order denying promotion to certain officers under a service rule.
Judgment:
Supreme Court held that executive orders cannot supplement or alter the essential contents of statutory rules. If they contradict statutory provisions, they are invalid.
Key Takeaway:
🔹 Executive orders cannot override statutory rules; they are subordinate to delegated legislation.
4. Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225
Facts:
The government took over printing textbooks through executive action without any legislative backing.
Judgment:
The Supreme Court laid down that the executive can act only if authorized by law, or in areas not covered by legislation — but it cannot make law.
Key Takeaway:
🔹 Executive orders have limited scope — they must operate within constitutional and statutory limits.
5. Sant Ram Sharma v. State of Rajasthan (1968) 1 SCR 111
Facts:
Petitioner challenged denial of promotion based on executive orders, not rules under Article 309.
Judgment:
Court held that executive orders may fill in the gaps where no rule exists, but cannot contradict existing rules.
Key Takeaway:
🔹 Permissible rulemaking by executive is only when it supplements, not supplants, existing law.
6. A.K. Bindal v. Union of India (2003) 5 SCC 163
Facts:
Government offered voluntary retirement scheme (VRS) through an executive policy. Employees argued that they had a right to it.
Judgment:
Supreme Court clarified that executive policies or schemes do not confer enforceable rights unless statutorily backed.
Key Takeaway:
🔹 Executive orders or schemes are not binding as law unless issued under statutory authority.
7. Navtej Singh Johar v. Union of India (2018) 10 SCC 1
Facts:
While this case mainly dealt with decriminalizing Section 377 IPC, it highlighted how executive inaction or misuse of rulemaking power can violate fundamental rights.
Judgment:
The Court emphasized that executive action must be constitutional, and cannot hide behind the lack of legislation to justify discrimination.
Key Takeaway:
🔹 Executive silence or misuse of discretion in rulemaking is subject to constitutional scrutiny.
📊 Summary Table: Executive Orders in Rulemaking – Case Law Highlights
| Case | Key Issue | Judicial Principle |
|---|---|---|
| B. Prabhakar Rao | Contradiction with statutory rules | Executive orders can't override rules made under Article 309 |
| G.C. Mandawar | Unequal treatment via executive orders | Must conform to Article 14 (Equality) |
| Charanjit S. Gill | Executive vs statutory promotions | Orders subordinate to statutory rules |
| Ram Jawaya Kapur | Executive policy without law | Executive can't make law; must act within authority |
| Sant Ram Sharma | Filling gaps via executive order | Allowed if not inconsistent with rules |
| A.K. Bindal | Enforceability of executive schemes | Executive orders aren't binding law unless backed by statute |
| Navtej Singh Johar | Executive misuse/inaction | Must act within constitutional limits |
🏛️ Conclusion
Executive orders are a powerful tool of administrative governance, especially for implementing legislation and issuing clarifications. However:
They must stay within the limits of the Constitution and delegated authority.
Cannot override or conflict with statutory rules.
Subject to judicial review for fairness, reasonableness, and legality.
They supplement but do not substitute legislation.
Thus, while the executive has flexibility in rulemaking, it is not absolute. The judiciary ensures that such power is exercised lawfully, constitutionally, and transparently.
RELATED Blog
0 comments