Exclusion of Judicial Review of Delegated Legislation — Administrative Law Notes

Exclusion of Judicial Review of Delegated Legislation

Sometimes a parent Act tries to bolt the courtroom door: it says a rule made under it “shall not be questioned in any court” or “shall be final”. Does that shut the courts out? Short answer: not really — because the power of judicial review under Articles 32 and 226 cannot be taken away by an ordinary statute.

Can judicial review of delegated legislation be excluded?

Legislatures sometimes insert ouster or finality clauses — provisions purporting to exclude or limit the courts’ power to review delegated legislation. In India such clauses have only a limited effect:

• The writ jurisdiction of the Supreme Court (Art. 32) and the High Courts (Art. 226) is part of the basic structure and cannot be ousted by a parent Act.
• However worded, a finality clause cannot protect a rule that is ultra vires, unconstitutional or made without jurisdiction — courts always retain the power to correct a jurisdictional error.
• At most, such a clause may narrow the grounds of challenge; it can never confer immunity on a rule that exceeds the parent Act or violates the Constitution.

🔑 The controlling idea: an ouster clause cannot make valid what is void. A rule that is beyond power stays beyond power, finality clause or not — because the court is enforcing the Constitution and the parent Act, not merely reviewing the rule.

In Simple Terms: A parent Act may try to say “no court can question these rules”, but it cannot really shut the courts out. Judicial review under Articles 32 and 226 is protected by the basic structure, and no finality clause can save a rule that is ultra vires or unconstitutional.

flowchart TD
    ROOT["Ouster / finality clause<br/>'rule shall not be questioned'"]:::root
    ROOT --> A["Cannot oust Art. 32 / 226<br/>(basic structure)"]:::leaf
    ROOT --> B["Cannot save an ultra vires<br/>or unconstitutional rule"]:::leaf
    ROOT --> C["Court always corrects<br/>jurisdictional error"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

🧩 WORKED EXAMPLE — A “shall be final” clause

Facts. A parent Act provides that rules made under it “shall be final and shall not be called in question in any court.” A rule made under it plainly exceeds the Act. A citizen challenges it in the High Court.

Rule. A finality clause cannot oust Article 226 or validate an ultra vires rule; courts retain review over jurisdictional error and constitutionality.

Apply. The rule exceeds the parent Act — a jurisdictional defect. The finality clause cannot cure that defect or bar the writ court from examining it.

Conclusion. The High Court can and will review the rule despite the clause, and strike it down as ultra vires.

Case Laws

• L. Chandra Kumar v Union of India (1997) — judicial review under Arts 32 and 226 is part of the basic structure and cannot be excluded.
• Kihoto Hollohan v Zachillhu (1992) — finality clauses do not bar review for jurisdictional error/constitutional violation.

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