Rule-making power of the executive
🔷 Rule-Making Power of the Executive in India
🔹 What is Rule-Making Power?
Rule-making by the executive refers to the power to frame rules, regulations, or by-laws under the authority of parent statutes passed by the legislature. This is known as delegated legislation.
🔹 Types of Rule-Making:
Delegated/Subordinate Legislation:
Parliament delegates rule-making authority to the executive.
Executive makes rules within the framework of the enabling Act.
Executive Legislation (Independent):
Under Articles 73 and 162, executive can issue executive orders/instructions in areas where there is no legislative enactment, provided it doesn't conflict with any law.
🔹 Constitutional Basis
Article 73: Executive power of the Union extends to matters on which Parliament can legislate.
Article 162: Executive power of States similarly defined.
Article 13(3)(a): “Law” includes rules, regulations, ordinances, notifications — hence, rules made by the executive are subject to Fundamental Rights.
🔷 Key Features of Executive Rule-Making Power
Must be authorized by law – Executive cannot make rules on its own without delegation.
Rules must conform to the parent Act – Cannot override or contradict the law.
Subject to Judicial Review – Courts can strike down rules that are ultra vires (beyond powers).
Can be struck down for arbitrariness – If a rule is manifestly unreasonable or violative of fundamental rights.
🔷 Landmark Cases on Rule-Making Power of the Executive
1. In re Delhi Laws Act Case (1951)
Citation: AIR 1951 SC 332
Facts:
The case challenged the delegation of power by Parliament to the executive to extend laws to Delhi with modifications.
Judgment:
The Supreme Court upheld the concept of delegated legislation.
Held that essential legislative functions (like laying down policy) cannot be delegated.
However, conditional legislation and subordinate legislation are valid.
Significance:
Established the limits of delegation.
Recognized that the executive can make rules only within the policy and framework laid down by the legislature.
2. A.K. Roy v. Union of India (1982)
Citation: AIR 1982 SC 710
Facts:
A challenge to the National Security Ordinance, and the executive's rule-making power under preventive detention laws.
Judgment:
The Court held that while the executive has wide powers under preventive detention, it must act strictly within the statute and follow procedural safeguards.
Significance:
Reinforced that executive rule-making is valid only if not arbitrary or violative of Fundamental Rights.
3. State of T.N. v. P. Krishnamurthy (2006)
Citation: (2006) 4 SCC 517
Facts:
Question of whether rules made by the executive can be challenged in court.
Judgment:
Laid down clear grounds for judicial review of subordinate legislation:
Inconsistent with the parent Act.
Violates Fundamental Rights.
Is manifestly arbitrary.
Ultra vires the Constitution.
Significance:
Defined judicial limits and controls over executive rule-making.
Important precedent for challenging rules made by ministries, departments, or regulatory bodies.
4. Barium Chemicals Ltd. v. Company Law Board (1967)
Citation: AIR 1967 SC 295
Facts:
Executive orders passed under the Companies Act were challenged for being arbitrary and without reasoning.
Judgment:
The Court held that rules and orders must be reasonable and not made with malafide intent or abuse of discretion.
Significance:
Introduced the concept of malice in law in rule-making.
Administrative rules and decisions must not be irrational or unfair.
5. Agricultural Market Committee v. Shalimar Chemical Works Ltd. (1997)
Citation: AIR 1997 SC 2502
Facts:
Rules were framed under a statute that went beyond the scope of the enabling Act.
Judgment:
The Court held the rule ultra vires.
Stated that rules cannot travel beyond the power granted by the parent statute.
Significance:
Clear reiteration that subordinate legislation must be consistent with the object and limits of the enabling law.
6. Indian Express Newspapers v. Union of India (1985)
Citation: AIR 1986 SC 515
Facts:
Challenge to the customs and excise duty imposed under executive rules.
Judgment:
The Supreme Court upheld the power of judicial review over executive rule-making.
Held that rules can be struck down if they are arbitrary, unreasonable, or violative of Article 14.
Significance:
Emphasized that delegated legislation is not immune from constitutional scrutiny.
7. Vasu Dev Singh v. Union of India (2006)
Citation: (2006) 12 SCC 753
Facts:
A rule allowing the auction of property by the Railways without judicial oversight was challenged.
Judgment:
The Court held that executive action must be fair, just, and reasonable, and subject to constitutional safeguards.
Significance:
Limits executive rule-making that affects property and civil rights.
🔷 Summary Table: Rule-Making Power and Key Cases
| Case Name | Year | Principle Established |
|---|---|---|
| Delhi Laws Act Case | 1951 | Delegated legislation is valid but policy-making cannot be delegated |
| A.K. Roy v. Union of India | 1982 | Preventive detention rules must follow due process |
| State of T.N. v. P. Krishnamurthy | 2006 | Grounds for judicial review of rules laid down |
| Barium Chemicals v. CLB | 1967 | Rule-making must not be malafide or unreasonable |
| Shalimar Chemical Case | 1997 | Rules cannot go beyond the enabling Act |
| Indian Express Newspapers Case | 1985 | Rules subject to Article 14; must be reasonable |
| Vasu Dev Singh Case | 2006 | Executive rules must protect civil rights |
🔷 Conclusion
The rule-making power of the executive in India is both necessary and constitutionally recognized, but it is:
Not unlimited
Must be authorized by legislation
Subject to constitutional and judicial scrutiny
Courts ensure that:
Executive rules remain within their legal bounds (intra vires).
Do not violate fundamental rights.
Are not arbitrary, discriminatory, or malafide.
The doctrine of checks and balances is actively upheld through judicial review of delegated legislation, keeping the executive's power within democratic and constitutional limits.
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