Unit 3

Delegated Legislation

3.1 Meaning, Scope and Importance of Delegated Legislation

Meaning and Defination of Delegated legislation

Delegated legislation means law making authority exercised by bodies other than legislature. In
other word, when the function of legislation is entrusted to organs other than the Parliament by
the Parliament itself, the legislation made by such organs is called delegated legislation. 1
Delegated legislation is generally known as rules, regulations, bye-laws or notification etc.

It also refers the transferred authority from parliament to the government to make rules while
implementing the law and legal provision. The transfer of authority / power by the superior to the
sub-ordinate; when a subordinate by virtue of delegated authority passed law/ legislation, it is
called delegated legislation. It means conferring one's power of law `making to another, i.e. it is
the extension of law making power to the executive by the legislative. 2 So, delegated legislation
is subordinate legislation as its power and authority is limited by the statute and it is valid only so
far as it is within those limitations.

According to R. Dayal, “Delegated legislation means a legislation which is passed by a body to

which the power of legislation is delegated by the statute.”3

According to Salmond, “Delegated legislation as that which proceeds from any authority other
than the sovereign power and is therefore dependent for its continues existence and validity on
some superior or supreme authority.”

According to Jain and Jain

The term delegated legislation is used in two senses:4
(a) The exercise by a subordinate agency of the legislative power delegated to it by legislature, or
(b) The subsidiary rules themselves which are made by the subordinate agency pursuance of the
power as mentioned in no (a).

According to Halsbury law of England,” sub-ordinate legislation is legislation which is made by

a person or body after than sovereign in parliament by virtue of power conferred either by
legislation which is itself made under statutory power.”5
So from above definition, it can be said that delegated legislation is the law made by the
1
C.K. Takwani ,Lectures on Administrative Law,(Lucknow, Eastern book company,2009),59.
2
Dr. Rega Surya Rao, Lectures on Administrative Law, (Hyderabad, Asia Law House, 2008), 24.
3
R. Dayal, Administrative Law, 3rd edn. Pg.18.
4
MP Jain and SN Jain, S(n6),26.
5
Keshav Raj Pandey,Administrative Law,(Putalisadak, Mega offset print, 2009),95.
administrative authority except by the supreme authority i.e. the legislature and it gets legal
validity and recognition on the basic of the law promulgated by the supreme authority. Therefore
delegated legislation that is born by the parent act cannot go beyond the parent acts. It cannot go
beyond the parent act, it cannot go against the parent act and it cannot change the objective,
structure and policy of the parent act. A rule cannot be made by the executive against the parent
act and constitution.

Thus, a validly enacted piece of delegated legislation has the same legal force and effect as the
Act of Parliament under which it is enacted. Delegated legislation is dependent power of
administrative authority that is why it has to follow Parliamentary norms. If it is made against the
Parliamentary norms i.e. the parent act and constitution it is void ab initio.

Scope of Delegated Legislation

 Delegated legislation must not:
a. Exceed the parent/enabling Act made by the legislature.
b. Conflict with the Enabling Act and
c. Alter the necessity, special features make or policies of the Act.
 Austin says," There can be no law without a legislative act." But when the legislature, under
the pressure of work delegates the legislative power, it results in delegated legislation.
 Delegated legislation refers to all law making by the authorities other than the legislature i.e.,
the central, the state Govt. and the other administrative bodies and is generally expressed as
statutory rules and orders, regulations, bye-laws, scheme directions or notifications etc.
 It is a kid of subordinate legislation. It has two meanings:
Firstly, it means the exercise of power that is delegated to the executive to make rules.
Secondly, it means the output the output or rules or regulations etc. made under the power so
given.
 It is fundamental that the delegate on whom such power is conferred has to act within the
limits of the enables Act.
 Its purpose is to supplant and not to supplement the law, its main justification is that
sometimes legislature does not foresee the difficulties that will come while enacting the law.
 Delegated legislation fills in those gaps which are not seen while the formulation of the
enabling act. Delegated legislation gives flexibilities to law and there is ample scope for
adjustment in the light of experiences gained during the working of legislation.
 3 forms of delegated legislation- statutory instruments, order in council and bye-laws.

Case Laws
In re Delhi Laws Act case, AIR 1961 Supreme Court 332; Vasantlal Magan Bhai v. State of
Bombay, AIR 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR 1977 J&K 4,
Supreme Court observed that "Under the constitution of India article 245 and 246 provide that
the legislative powers shall be discharged by the Parliament and State legislature. The delegation
of legislative power was conceived to be inevitable and therefore it was not prohibited in the
constitution. Further, Articles 13(3)(a) of the Constitution of India lays down that law includes
any ordinances, order, bylaw, rule, regulation, notification, etc. Which it found in violation of
fundamental rights would be void."

R.V. Minister of Health, (1943), 2 ALLER591)

In case of delegated legislation, unlike and Act of the Parliament, the court can inquire into
whether it is within the limits laid down by the present statute. If a piece of delegated legislation
were found to be beyond such limits, court would declare it to be ultra-vires and hence invalid.

Bharat Prasad Koirala vs. Public Service Commission (NKP 2076, Decision Date: 2075/ 09/ 01:
Public bodies and officials working in accordance with the law while interpreting and
implementing the law according to the general rules and accepted principles of law enforcement
should not override the Act by the Regulations.

Narayan Prasad Ghimire et. al vs. Ministry of Infrastructure and Transportation (NKP 2075,
Decision date: 2075/ 09/ 03)
While interpreting Regulations, the aim or the purpose of the Act or the Legislative intent must
be honored i.e. it should be harmonious interpretation with the objective of the Act.

3.2 Factors Leading to the Growth of Delegated Legislation

Reasons for Delegated Legislation

1. Lack of time- The parliament is so much occupied with time that it has no time to enact social
legislation. Thus, parliament frames only the board rules and principles and the departments are
left to make rules.

2. Experiment- Legislature sometimes left the authorities to make the necessary laws as per
their suitability in the particular issue as an experiment.

3. Technicality of subject matter- With the progress of the society, things have become more
complicated and technical. All the Legislators may not know them fully and hence they cannot
make any useful and hence they cannot make any useful decision on it. Thus, after framing of the
general policy by the parliament, the government departments or other bodies who know its
technicalities may make laws.

4. State of emergency- Delegated legislation can deal with an emergency situation as it arises
without having to wait for an Act to be passed through the Parliament to resolve the particular
situation. Therefore, delegated legislation is often used for emergency and urgent problems.

5. Local matters- There are matters which concern only a particular group of profession. Any
legislation on these matters need consultation with the people of that particular locality, group or
professional.

6. Flexibility- To adopt the law according to future contingencies or any other adjustments
which are to be made in Act in future can be done efficiently through delegated legislation.

Criticisms/ Limitations of Delegated Legislation

– Making or amending laws through delegated legislation lacks democracy since it is not made
by elected representatives of the people.
– Delegated legislation is subject to less legislative scrutiny than primary legislation. Thus,
legislature has lost control over it, which may lead to inconsistencies in laws.
– Delegated legislation has possibility to be used in ways which law making body had
anticipated when it conferred the power through the parent Act.
– Delegated legislation lacks publicity since the public is not, normally, notified of it.

Differences between Supreme and Subordinate Legislation

Supreme Legislation Subordinate Legislation
Supreme legislation proceeds from the Subordinate legislation proceeds from any
sovereign power in the State. authority other than the sovereign power.
It is independent for its continued existence It is dependent for its continued existence and
and validity, on any superior authority. validity on some superior authority i.e. the
However it can be amended by the sovereign. Parent Act.
It cannot be repealed, annulled or controlled It can be repealed, annulled or controlled by
by any other legislative authority. the Parent Act.
It is made by the legislative body of the It is made by the bodies other than the
government. legislative organ to regulate the supreme
legislation.
In democratic countries, it is made by the People do not usually elect the subordinate
people’s representatives elected through law- makers.
election.

3.3 Limitation on Delegated Legislation

 Constitutional Supremacy

 Principle of Ultra Vires

 Judicial Review

3.4 Control Over Delegated Legislation: Legislative, Judicial and Procedural

Delegated legislation is made by non-elected bodies away from democratically elected

politicians (parliament). In addition delegated legislation lacks discussion, criticism and public
opinion as law made by the legislature. Thus there is a danger of misuse of conferred power by
the administrator and pass outrageous unreasonable legislation. This can adversely affect the
fundamental rights of a citizen guaranteed under the basic law, liberty, equality and property of
the individual people. Therefore, an effective & adequate system of control is necessary to keep
the sub- ordinate law making body into legal limits. So, Controls over the delegated legislation
operate two levels. One at the point of delegation of legislative power by the legislature on its
subordinates and secondly, at the point of exercise of delegated legislative power by it’s
subordinate6 to prevent the misused of authority by the administrator. In order to check excessive
delegation to keep delegated legislation within the limit granted by the statute certain control
mechanism is needed. Such control mechanism, which are exercised over delegated legislation,
are:
1. Legislative Control
2. Judicial Control, and
3. Procedural Control

Necessity of the parliamentary control.

Parliament means the supreme legislative assembly of country. Parliamentary is adjective of

parliament. Pertaining to the legislature (parliamentary maneuver), Legislative, law making,
congressional, to exercise a directing influence over something (the company controlled its
workers) regulate, govern, dominate, guide, supervise, discipline, direct, rule, superintend,
dictate, manage, master, regiment, administer, engineer, command, operate, manipulate, pilot,
oversees are some synonym of control.

The 'control' involve in determining whether principle and agent relationship or master and
servant relationship is involve must be accompanied by power or right to order or direct.7

There has been the rapid growth of delegated legislation after the reinstatement of democracy in
Nepal. Due to the compulsive necessity and unavoidable circumstances the rules, regulations,
orders, bylaws, schemes or any form lf delegated legislation made by the administration under
the authority received from parliament are extensively growing in the newly established
parliamentary form of government. To see and watch whether a subordinate body is properly
exercising the law making power conferred upon it or not, there is an ever increasing necessity
for effective control and scrutiny by the parliament itself. Sometimes, the legislature can provide
a blank cheque to the administration to do anything it considers 'necessary' or 'expedient' for
sewring a specified objective without laying down any standard. To observe whether the
administration is properly exercising its delegated power or not it is basic duty or prime function
of the parliament itself to remain vigilant and sincere regarding the legislative activity of the
administration. Again, discussion on a bill in parliament provides a good law. This is not seen in

6
Dr. Bidya Kishore Roy ‘Bimal’, Judicial Control Over Delegated Legislation: An Oveview, Annual Survey of
Nepalese Law-2001, NLR, Vol. 16, No. 1&2.

7
Ibid, p-159.
the case of delegated legislation. Delegated legislation lacks discussion, criticism and public
opinion. There is, thus a danger that the administration may misuse its conferred power which
can adversely affect the fundamental rights of a citizen guaranteed under the basic law and
liberty, equality and property of an individual can be at stake.If the proper control of delegated
legislation is not duly considered by the parliament, which is primarily its responsibility, there
can arise a sense of thinking that the parliament is not the supreme authority to check over the
abusive and unwarranted use of power of administration.It is not at all the essence of delegated
legislation that a servant should supersede its master. In such a situation, the supremacy of
parliament as a supreme law maker remains good for nothing, it gets diluted or even eroded. Due
to there pragmatic reasons a proper check over delegated legislation is required to be duly
maintained.8

Parliamentary control over delegated legislation

The parliament or legislature, which delegates law making power on the executive has a duty to
see and check whether such delegated authority in making laws is properly exercised.

The Legislative or the parliamentary control over the delegated legislation can be effectively
exercised by:

a. Laying on the table

b. Scrutinizes committee
c. Reports of the committees

a. Laying on the table

It means placing before the table. It is made to to make legislature know as to the law making
power to be conferred on the executive. It also gives an opportunity to the members to question
or challenged the proposed delegation of authority on the executive.9
This laying procedures requires that an act of the parliament will normally required that rules or
regulation made under the acts shall be laid before both houses of parliament so that
parliamentarians can know as to what rules have been made by the administration in exercise of
delegated legislative power and thereafter they (the parliamentarians) can have the proper and
effective check over the legislative power of the administration. This technique of parliamentary
control is extensively used in United kingdom. Nepal lacks this type of control mechanism.10
The object of this system is to keep them under general political control, so that criticism in
parliament is frequently on the grounds of policy.
Laying before parliament can be done in a number of different ways. But in practice there are
two clear categories into which the majority of cases fall. Either the regulations will be of no
effect unless conformed by resolution of each house or they will take effect without any further
formality in parliament, but subject to annulment in pursuance of a resolution of either house.

8
n(1) pg 173
9
Rao, n(4), pg 42.
10
n(1) p-175.
These are known as the affirmative and negative procedures respectively.11

b. Scrutiny committees:-
Parliament would be of no use unless the rules are properly studied and scrutinized. In order to
strengthen the parliamentary control over delegated legislation, scrutiny committees are
constituted.12
There shall be a committee on subordinate legislation to scrutinize the rules and regulation in
both house. The committee can examine the rules and regulations from all point of view even
through merits of the subject involved. A note embodying the comments is also submitted to the
committee by the competent officer of the secretariat, so that points which are important enough,
may be brought to the notice of the committee. The committee after a massive discussion may
approve the proposed rules or scrutinize the rules as it think appropriate and report its opinions
and the grounds thereof, to the house.13
Parliamentary scrutiny committees act as watchdogs which bark and arouse their master from
slumber when they find that an invasion on the premises has taken place. This method is more
appropriate in the sense that delegated legislation is properly studied and scrutinized here with
special attention and due care. The very object of the scruting committees is to see, scrutinize
and report to the house of parliament whether the delegated power to make rules, regulation,
bye-laws, sub rules etc. is being properly exercised within the limits of delegated legislative
power or not. The rules of the house of representatives, 2054(1998) under its rules 188
incorporates nine committees of the house of representatives, among which law, justice and
parliamentary affairs committee deals with the subject matter of delegated legislation. The rules
of the national assembly, 2055(1998) on the other hand, under its rules 150 provides four
committees of the national assembly committee on delegated legislation is one of them.
According to the rules of the house of the representatives, law, justice and parliamentary affairs
committee consists of a maximum of 25 members including the ex-officio members, who are
nominated by the speaker of the house of representative with the consent of the house. The
prime-minister and the minister, who is in charge of a particular subject matter related to the
committee, work as the ex-officio member of the committee. The committee on delegated
legislation constituted under the rules of national assembly on the other hand consist of a
maximum of 15 members who are nominated by the chairperson of the national assembly with
the consent of the member of national assembly.14

(c) Reports of the committees

The rule of the house of representatives, 2048 (1991), had foreign and human rights committee
and the subject matter of 'delegated legislation' was under the jurisdiction of this committee.
There was no separate committee on delegated legislation. The committee concentrated mostly
upon the matters relating to Attorney General and commission for the Investigation of Abuse of
11
Essays on constitutional law, Nepal law society, volume 29 may, 1999, pg (77-78)
12
Rao n(4) pg-43
13
n(10) pg 78.
14
n(1) pg 176.
Authority. But nevertheless it also made some recommendation regarding delegated legislation.
The committee suggested that the rules, bye-law, orders and notice made and issued by the
executive authorities under the authority of parliament should be duly made available to
parliamentary secretariat in time and the requirement contemplated under Rule 188 of Rules of
the House of Representatives 2048 should be fulfilled.15
Meaning, Scope and Importance Judicial Control over Delegated Legislation
Judicial control over delegated legislation means power of the court to determine the legal
validity of the delegated legislation. Judicial controls also refer to assessment by the court of the
legal validity of a piece of delegated legislation which the court may do first, with reference to
the constitution by applying doctrine of Ultra Vires and secondly with reference to the other
recognized principle of law.16 In simple term Judicial Control of Delegated Legislation means the
judicial review of the executive action which is unconstitutional and ultra vires with the Parent
act. And stressing the importance and the rationale of Judicial Review Supreme Court has also
stated, “If court were to close its door for the injured people whose legal and constitutional rights
have been curtailed, then injured will always suffer injustice and the government and public
officials will become more and more arbitrary and ultimately the constitutional aim of rule of
law will not be achieved. Thus, Nepalese Interim Constitution 2063, in Article 107 17 has
mentioned about the right to judicial review any act of the administrative agency and the law to
the Supreme Court of the Nepal under its extraordinary jurisdiction. This also indicates that
judicial control is the one of strong mechanism to control delegated legislation guaranteed by the
constitution itself. It is the integral Constitutional principle that forms a very important regulating
mechanism of democratic government and for the protection of people’s rights. It is not only a
means to checking executive action but also an ultimate watch dog of the people’s fundamental
rights.

Administrative power derives from the statutes and the limits are found in the statute itself i.e.
delegated legislation cannot go beyond the statutory limit provided by the legislature. Judicial
control is based on the fundamental principle of the legal system that powers can be validly
exercised only within their true limits18. Lindley MR has also clearly mention that “no duty of the
court which is more important to observe and no power of the court which is more important to
enforce than its power of keeping public body within their rights.” 19So, judicial control over the
delegated legislation is the essential function of the court to prevent arbitrariness and abuse of
power by the administrative authority.

By judicial control is meant the power of the courts to examine the Legality of the officials act

15
n(1) p-177
16
M.P. Jain, Cases and aterials on Indian Administrative Law, ( NAGPUR: Wadhawa and Co,1994),154.
17
The Interim Constitution of Nepal 2063,Art107(1):”…the fundamental right conferred by the Contitution or sny
other ground and extra ordinary power shall rest with Supreme Court to declare the law Void either ab initio or from
its decision if it appears that the law in question is inconsistent with constitution.”
18
B.P. Aacharya,Adminstrative law,(Kathmandu, Pairavi books and stationary center,2002),165.
19
Fazal Karim,Judicial Review of Public Action,(Pakistan, Universal law publishing Co,2006),6.
and thereby to safeguard the fundamental and other essential rights of the citizens. While
controlling the delegated legislation by the court, it must examine the nature objects and scheme
of the legislation, and in the light of that examination must consider what is the exact area over
which power are given by the section under which the competent authority purports to act.20

Approaches/ Methods of Judicial Control over Delegated Legislation

The validity of any law either supreme or sub-ordinate is tested by the Supreme Court of Nepal
under the doctrine of judicial Review. Therefore Delegated legislation is challenged through the
procedure of judicial review21. The principle of judicial review is base on doctrine of Ultra vires.
Thus, all Delegated legislation is subject to judicial control under the doctrine of ultra vires.22
The doctrine of Ultra vires has two principal bases and the bases of the doctrine of the Ultra
vires are the method or approaches to control the delegated legislation by the judiciary.
a) Substantive ultra vires
b) Procedural ultra vires

a) Substantive ultra vires

Substantive ultra vires means that the delegated legislation goes beyond the scope of the
authority conferred by the parent statute or by the Constitution. It is the fundamental principle of
the law that a public authority cannot act outside the powers i.e. ultra vires. The doctrine refers
to the extent; scope and range of power conferred by the parent action the concerned authority to
makes rules. To be valid a rule must fulfill two conditions, that is:23
1. It must conform to the provisions of the statute under which it is framed; and
2. It must also come within the scope and purview of the rule making power of the authority
framing the rule.
If either of these conditions is not fulfilled, the rule would be void as Parliament never intended
to give authority to make such rules which are unreasonable and ultra vires.24
A delegated legislation may be held to be invalid on the ground of substantive ultra vires in the
following circumstances:25
1. Where parent Act is unconstitutional.
2. Where delegated legislation is inconsistent with the parent Act.26
3. Where delegated legislation is unconstitutional.

20
O.Hood Phillips and Jackson, Constitutional and Administrative Law,(London, Sweet and Maxwell,2001),699.
21
Apuraba Katiwada, Judicial Review in Nepal,(cited from http://www.ksl.edu.np/cpanel/pics/
judicial_review_in_Nepal_apurba.pdf) visted on 2011-4 -6.
22
Ibid,666.
23
Halsbury’s laws of India,Administrative law,(New Delhi, LexisNexis Butterwoths, Voume1,2004),56-57.
24
Sitaram Sugar Mills vs. Union of India,AIR(1990) SC 1277; cited from C.K.Takwani,(n9),102.
25
C.K.Takwani,(n9),102-103.
26
When the subordinate authority exercised the power of rule-making beyond the principles and objects laid down
in the Act and the rules are made without any reference to the provisions of the Act, under which such power is
given, it is declared ultra vires the act. It is exclusively within the province of the legislature and its delegate to
determine, as a matter of policy how the provisions of a statute can best be implemented and what measures
substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious
achievement of the objects and purposed of the Act
 4. Unreasonableness27.
5. Mala fide; Bad faith.28
6. Sub delegation29 etc.

b) Procedural ultra vires

When a subordinate legislation fails to comply with certain procedural requirement prescribed by
the parent Act or by the general law, it is known as procedural ultra vires.30 To apply the doctrine
of procedural ultra vires, the first question for the courts to decide is whether the provision in the
Act prescribing the procedure is mandatory or directory. Rule becomes invalid only in case of
non compliance with the mandatory procedure. Non compliance with directory procedure does
not render them invalid. So, an absolute enactment must be obeyed or fulfilled exactly but it is
sufficient if directory enactment be obeyed or fulfilled substantially.

Parliament laid down the procedures, principles and guidelines in the parent Act. If
administrative authorities don’t follow the designated procedures such delegation legislation will
be declared void on the ground of procedural ultra vires. Basically non compliance of following
procedure declares delegated legislation void31.
1. Publication of delegated legislation
2. Consultation with export body or approval of an authority

Judicial Control over delegated legislation on the ground of Constitutionality

Constitution is the fundamental law of the land and any laws, bylaws or the regulation
promulgated should be consistent with the constitution. If any laws inconsistent with the
constitution is declared null and void to the extent of inconsistency with the constitution. 32 As
the constitution is the supreme law of the law all laws should follow the spirit of the constitution
and cannot exercised the power beyond the constitutional authority. Delegated legislation is sub
ordinate to the parliamentary Act and parliament get authority and the power from the
constitution. Thus delegated legislation also come under the constitutional limitation and must be
27
The legislature never intended to give authority to make unreasonable rules and therefore reasonable rules are
ultra vires. The test of unreasonableness is applicable to the delegated legislation both on the general principle of
Administrative law as well as under the interpretation of fundamental rights. Generally a statute cannot be
challenged on the ground of unreasonableness. But, in the exceptional cases, it can be challenged on the ground of
unreasonable.
28
Mala fide means bad faith or ulterior motive. A rule can be challenged on the ground of mala fides of the rule
making authority. It is a cardinal principle of administrative law that mala fides of the decision s maker vitiates an
administrative action. Therefore all powers are to be exercised in good faith. In the case of Mc Eidowney vs.
Forde,it has stated that the power entrusted for one purpose is deliberately used with the design of achieving some
other purpose, which itself is unauthorized or is forbidden, if bad faith of this kind may be established , the court
may intervene and declare ultra vires.
29
A subordinate legislator cannot delegate its authority to make delegated legislation to another person or body.
Sub-delegation is not permitted: delegates delegare non potest. Hence the validity of an act under sub delegation can
be questioned ultra vires.
30
C.K.Takwani,(n9),121.
31
Ibid, 122.
32
The Interim Constitution 2063: Article 1.
comply with the constitution and the constitutional provision.

If parliament exceeds its legislative power and makes any law contrary to the constitution
provisions and principles, Supreme Court under Article 107(1) 33 and (234) of the constitution has
power of judicial review can declare these laws ultra vires. So the limitation by constitution are
of imposed to the Parent act and to the rules, not to exceeds to the constitutional provision being
an ultra-vires, it comes under the scopes of the constitutional limitation. And, judiciary is
authorized by constitution to ask question of the constitutionality of the delegated legislation. It
shows that, administrative action i.e. delegated legislation should be within constitutional
limitation.

Judiciary checks the Constitutionality of the delegated legislation on the following two grounds;
1. Constitutionality of the Parent Act.
2. Constitutionality of the Delegated Legislation.

Constitutionality of the Parent Act

The constitutionality of the Parent Act plays a dominate role for delegated legislation under
which it is made. For delegation to be valid, the requirement is that the Parent Act or enabling
statute by which legislative power is conferred on the executive authority must be valid and
constitutional. If the delegating statute is itself unconstitutional or ultra vires the Constitution,
delegated legislation made under it is also necessarily bad35 and will be ipsofacto invalid.
The parent Act may be declared unconstitutional in different grounds that may be excessive
delegation or breach of fundament right or inconsistency with any other constitutional provisions
or principle or on various other grounds.36

Constitutionality of delegated legislation

Constitutionality of delegated legislation means the permissible limits of the constitution of any
country within which the legislature, which as the sole repository of law making power, can
validly delegate rule making power to other administrative agencies. 37Constitution as being a
supreme law of land, it cannot be accepted that the by-laws are important than the law of land.
The provision of constitution cannot overrule by the delegated legislation. If delegated

33
The Interim constitution, 2063; Article107(1): “… the Supreme Court to have any law or any part thereof declared
void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the
enjoyment of the fundamental rights conferred by this constitution or on any other ground, and extra ordinary power
shall be rest with supreme court to declare that law void either ab initio or from the date of its decision if it appears
that the law in question is inconsistent with the Constitution.”
34
The Interim constitution, 2063; Article107 (2): “The Supreme Court shall, for the enforcement of the fundament
rights conferred by this constitution, for the enforcement of any other legal right… or for the settlement of any
constitutional or legal question involved in any dispute of public interest or concern, have extraordinary power to
issue necessary and appropriate orders to enforce such rights to settle the dispute. For these Supreme Court may,
with view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs...”
35
C.K.Takwani,(n9),109.
36
M.P.Jain & S.N. Jain,(n6),88.
37
I.P Massey,S(n3),166.
legislation inconsistent with constitution, it becomes a subject of judicial intervention based on
the constitution. And, judicial intervention in all cases has been justified in terms of
constitutional principles; parliament could never have intended to authorize such infractions of
fundamental rights38 guaranteed by the constitution. The delegated legislation may also be
declared unlawful, if it is against the policy of the act.39

Therefore the court may ask to consider the question of constitutionality of delegated legislation
itself. Sometime the parent statute may be constitutional but the emanating delegated legislation
may be in conflict with some provision of the constitution. 40 The delegated legislation becomes
invalid on the ground of ultra vires the enabling Act, because an enabling Act, which is
constitutional, cannot be deemed to have authorized unconstitutional delegated legislation.

When delegated legislation exceeds the authority provided by the legislature than such delegated
legislature is ultra vires and invalid as parent Act intended to exercised the granted power within
its limit provided by the Act. Thus delegated legislation may be void even if the parent act is
valid.

Nepalese experience regarding Constitutionality of the delegated legislation

1) Meera Gurung Vs central Immigration Department Themel41
Fact of the case: Meera Gurung, citizen of Nepal does marriage with Irani citizen Abdul Reje,
Mohamed Namin Both decided to stay in Nepal and for that, husband of Meera Gurung apply for
the non-tourist visa to reside in Nepal. But according to Rules 14(4) of Foreign Immigration
Rules, he gets visa only for 4 month once in a year. Whereas 14(3) of same Rules states that,
foreign women having marriage with Nepali man, that women can get visa for permanent
residence and it is not needed to add visa time frame once permission is granted. Being
discriminatory provision in a marriage by Nepali man and women with foreign nationals women
and man based on Art 11 of the Constitution of Kingdom of Nepal 2047, Right to equality, case
filed to quash the Rules 14(4) and writ petition by demanding equal provision of visa in a
marriage with Nepali citizen by a foreign national, to both man and women.

Decision of the Court: Having discriminatory provision of Rules 14(3) and 14(4) hits the
essence of the Constitution, i.e. Right to Equality. So, discriminatory provision of Rule 14(4) is
null and void as to the extent of inconsistency with Constitution and issued directive order to
make equal rules.

2. Reena Bajracharya and others v. RNAC and others.42

38
H.W.R Wade and C.F. Forsyth, Administrative Law, (Delhi,universal Law publishing,8th edition),858.
39
Ibid, 168
40
M.P Jain and S.N.Jain,,S(n6),26.
41
Meera Gurung Vs central Immigration Department Themel, NKP 2051(1994), decisions no 4858 page 68.

42
Reena Bajracharya and others v. RNAC and others, 2054, Writ no.2812
Fact of the case: In the petition it was stated that under Rule 16.1.1 of the Service Rule of
Personnel of RNAC, 2031(1974) provided that employees other than crew members shall retire
from the service after attaining the age of 60 and crew members shall retire at the age of 55
whereas under Rule 16.1.3 of the same Rule, states that airhostesses retire at the age of 30 or at
the end of 10 years service whichever is earlier. These provisions were challenged on gender
discrimination ground and ultra vires to the Article 11 of the Constitution of the Kingdom of
Nepal. Petitioner claimed that Bye-law 16.1.3 of the Service Regulation of employees of RNAC,
2031 is discriminatory and violated the Article 11 of the Constitution.

Decision of the Court: Employees should not be discriminatory treated on the basis of gender.
Both air hostesses and stewards belonged to the crew service but the air hostesses were subjected
to blatant discrimination and forced to get early retirement on the ground of sex. This is against
the essence of the constitution i.e. right to equality. The provision of article 11 (3) of the
Constitution which provides special provision for the protection and advancement of the
downtrodden (unequals) including women is not a negative obligation but is positive obligation
to make law for the protection and advancement of women. Hence court made it clear that the
unequal treatment for unequal does not mean that one should be discriminated in the name of
unequal treatment. The Court declared Rule 16.1.3 of Royal Nepal Airlines Corporations
Workers Rule ultra vires as that Rule discriminated individuals on the ground of sex by
determining unequal working limit and job security on the basis of the worker’s gender. Thus,
those Rules were held null and void as it is 'Ultra vires' to the constitution.

2 Balkrishna Neupane vs. Cabinet Secretariat and other43

Fact of the case: The provision relating to get citizenship in a time of commencement of 2047
Constitution is expressly written in Article8 44. This is related with acquire the citizenship after
commencement of constitution. In Citizenship Act 2020 Sec 3 and 4 have provision about modes
acquiring and loss of citizenship respectively. But government made Citizenship Rules 2049,
which provide some provision of citizenship. According to rule 3.4 of Citizenship Rules, CDO
shall issue certificate of citizenship following bases:
a) Person whose name is registered in voter list of 2037 referendum.
b) Name record person in 2032 is citizenship camp.
c) Person who is currently working or retired from government office of government owned
office.
These rules are contravention with Citizenship Act 2020 and to the Article 8 and 9 45 of the
Constitution. So, writ petition was filed to quash the 3.4(a) (b) (c) of Citizenship Rules 2049.

Decision of the Court: Rules only can be made to implement the objective of Act and rules
cannot impose any duty in against the parent act. Rules only bridged the gap of the parent Act
43
Balkrishna Neupane vs. Cabinet Secretariat and other, NKP 2051(1994) decision No 4970 page 675.
44
Article 8 of the Constitution kingdom of Nepal 2047; Citizenship at the commencement of the constitution.
45
Article 9 of the Constitution Kingdom of Nepal 2047; Acquisition and termination of Citizenship after the
commencement of the Constitution.
not for restrict the scope of parent act. The rules which are other than the spirit of Act cannot be
applicable and acceptable. No delegated legislation can provide the provisions, which are
contrary to the Constitution and the parent Act. Therefore as the byelaws 3.4(a) (b) (c) of
Citizenship Rule 2049 is inconsistent with Article 8 and 9 of the Constitution of 2047and Sec 3
and 16 of the Citizenship Act 2020. Thus, the rule 3.4(a) (b) (c) of Citizenship Rules 2049 is
declared null and void.

4. Lilamani Poudel v. HMG46

Fact of the Case: Writ petition was filed in the Supreme Court against HMG and its different
department contending that section 6(2)47 of Legal Aid Regulation is inconsistent with article
14(5)48,26(14)49, 1150of the Constitution of Kingdom of Nepal1990 and Article 14(2) 51 of ICCPR
1966 and section 3(1)52 and Preamble53 of Legal Aid Act of Nepal 2054.

Decision of the Court: The Supreme Court decided the criteria’s enumerated in section 6(2) of
the said Regulation are inconsistent with Right to legal aid guaranteed by the constitution,
ICCPR and Legal Aid Act. The court has laid down the following ratios in this regard:
 The provision of Regulation is against the general principle of criminal law that is based on
the principle of presumed innocent under which the persons remains innocent until he/she is
provided guilty.
 Legal representation is the right of accused which is the general principle of criminal justice
system. This right is guaranteed in article, 14(3) (d) of ICCPR and Article 26(14) of
Constitution. Besides these article 14 of the Constitution guarantees Right to criminal justice
as the fundamental right for important justice and fair trial.
Hence, Rule 6(2) of Legal Aid Regulation 2055 is inconsistent with right to criminal justice
under Article 14 of Constitution 2047 and spirit of legal aid mentioned in Preamble of Legal Aid
Act 2054 and thus the provision 6(2) of Legal Aid Regulation has been void abinito.

5. Chandra Kant Gyawali and others v. HMG and others 54

46
Lila Mani Poudel vs. HMG, Writ no. 3553 of 2056 (decision 2059/12/13) cited from Sambiadioni Bibadma
sarwocha Adalat ko faisala ,volume 2(Nepal, published by supreme Court),25
47
In following cases right to legal aid will not be provide:
Espionog act,2018,Trafficking control act2043,Ancient cultural heritage protection act2013, rape law,corruption
control act 2017, drug trafficking act 2033 and other.
48
No person who is arrested shall be detained in custody without being informed, as soon as may be of the ground
for south crest, nor shall be denied the right to consult and be defended by a legal practitioner of his choice.
49
The state shall, in order to secure justice for all, pursue a policy of providing free legal aid to indigents persons for
their legal representations in keeping with principle of rule of law.
50
Right to equality
51
Everyone changed with a criminal offence shall have the right be the presumed innocent until proved guilty
according to law.
52
The person having minimum annual fiscal income than determined by law will get free legal aid service
53
The act is envisaged to develop a system if free legal aid in other to help economically and socially incapable
people obtain free legal assistance on the cast of the state.
54
Chandra Kant and others v. HMG and others,NKP2057(1999),502.
Fact of the case: Bye-law 21(1)of Prison Rules 2020 had provided that prisoners will be divided
into two categories 'Ka','Kha' and 22(3)(a)(b)(c) also categories in three class on the basis of
facilities. So, the case was file to declare Bye-law 21(1) of the Prison Rules null and void as it
violate the Article 11(1)(2)(3) of the Constitution.

Decision of the court: The Supreme Court held that even in prison every individual (prisoner) is
afforded with the equal protection of law and the distinction of any prisoner on the basis of
his/her living standard and educational background cannot be a justifiable reason to distinguish
prisoners into privileged (ka shreni) and underprivileged (kha shreni) group, whereby declared
Rule 21 (1) of Prison Rules 2020 ultra vires with the Constitution.

6. Aachuta Prasad Kharel vs. prime Minister, Office of Council of Minister and others55
Fact of the Case: Rule 5 of Appointment and Service/ facilities Regulation of Official of Nepal
council of Legal Professional, 2055 is related with the examination period of the official for
permanently appointment for service in council. Rule 5(1) state that examination period for the
official shall be 1year for permanent appointment in the Service of Nepal council of legal
professional. Similarly, Rule 5(2) states that officials, who are working in the council at the
examination period of 1 year, can be remove from the service without giving reasonable notice if
their service is not satisfactory. Rule 5(3) talks about removal from the service according to Sub-
rule (2) without providing right to hearing. So, Rule 5(2) is inconsistent with Article 24(8) and
Rule 5(3) is inconsistent with Article 24(9) of the Constitution related to Right regarding Justice
and the Principle of Natural justice. Therefore the case was filed to declare Rule 5(2) (3) null and
void as it is inconsistent with the Constitution and Principle of Natural Justice.

Decision of the Court: Supreme Court held that Right to hearing and the reasonable decision is
the core Principle of the Justice. Which cannot be curtailed by the Constitution itself. These
rights are the basic and fundamental rights of the people. So the power delegated by the Nepal
Legal Professional Act, 2050 to make the rule cannot exceed the authority provide by the parent
Act and violate the basic Principle of the Justice. Thus the court declared the rule 5(2) (3) void
ab initio on the ground of Ultra vires to the Constitution, Act and the general Principle of
Justice.

Procedural Control:
Parliamentary control over executive or administrative rule making is admitted weak because,
legislators are sometime innocent of legal skills. Procedural Control mechanisms has the
potential to meet the requirement of allowing specific audit of rules by those whose
Consumption , they are made , as discussed below:
a) Drafting
b) Annual Publicity
c) Consultation

55
Aachuta Prasad Kharel vs. prime Minister, Office of Council of Minister and others,NKP 2066(2010),1063.
d) Postnatal Publicity