Fundamentals of Business Laws and Business Communication · Primary and Subordinate Legislation
Primary vs Subordinate Legislation and Judicial Control
Updated 10 October 2026 · Fact-checked
Primary legislation is law made directly by Parliament or a State Legislature, such as an Act. Subordinate legislation is law made by another authority under power given by an Act. Courts and Parliament control it. A rule that goes beyond the power given is ultra vires and can be struck down.
Understand Primary vs Subordinate Legislation and Judicial Control
Start with who makes the law. Parliament and State Legislatures have the power to pass Acts. This is primary legislation. It is also called enacted or parent legislation. It gets its power straight from the Constitution.
Parliament cannot write every detail. Think of the Income-tax Act: it sets the main rules, but forms, procedures and dates are fixed later by the government. These details are made by the executive or another authority that the Act names. This is subordinate legislation, also called delegated legislation. It appears as rules, regulations, bye-laws, orders and notifications. The Act that gives the power is called the parent Act or enabling Act.
The key link: subordinate legislation exists only because the parent Act allows it. It has no independent power. So it must stay inside the limits the parent Act sets, and it must not conflict with the Act or the Constitution.
This is the ultra vires doctrine. Ultra vires means beyond powers. If a rule-making authority goes beyond the power given, the rule is invalid. Ultra vires can be substantive (the authority had no power to make that kind of rule) or procedural (the authority did not follow the procedure the parent Act required, such as prior publication or consultation). A rule can also be struck down if it violates the Constitution, for example Fundamental Rights.
Control works in two ways. Judicial control: courts can examine a rule and declare it void if it is ultra vires the parent Act or unconstitutional. Parliamentary control: the rules are usually laid before Parliament, which can examine, modify or annul them, and committees scrutinise them. There is also control by procedure, such as the requirement of publication before the rule takes effect.
Key formulas to remember
- Primary legislation
- Made directly by Parliament or State Legislature = Acts
- Gets power from the Constitution. Courts can strike it down only for lack of legislative competence or violation of the Constitution.
- Subordinate legislation
- Made by an authority under power given by a parent Act = rules, regulations, bye-laws, orders, notifications
- Also called delegated legislation. It is valid only within the limits of the parent Act.
- Ultra vires test
- Rule beyond the power in the parent Act (or against the Constitution) = void
- Two kinds: substantive and procedural.
- Controls on delegated power
- Judicial control + Parliamentary control + Procedural control
- Courts review validity. Parliament examines rules laid before it. Procedure includes publication and consultation.
How to solve Primary vs Subordinate Legislation and Judicial Control questions
Most questions ask you to identify the type of law, compare the two, or decide if a rule is valid. Use the same steps each time.
- 1Read who made the law. If Parliament or a State Legislature passed it as an Act, it is primary.
- 2If an authority made it under an Act (a rule, regulation, bye-law or notification), it is subordinate.
- 3For a validity question, find the parent Act and check what power it gave.
- 4Check whether the rule goes beyond that power. If yes, it is substantively ultra vires.
- 5Check whether the required procedure (publication, consultation, laying before Parliament) was followed. If not, it may be procedurally ultra vires.
- 6Check for conflict with the Constitution, such as Fundamental Rights.
- 7Match the answer to the control named: courts for validity, Parliament for laying and scrutiny.
- 8Pick the option that fits all the facts and drop absolute words like always or never.
Quickest way: Who made it, and did it stay within power?
When to use it: Use this for any MCQ that gives a short scenario or asks you to compare the two forms of law.
- Ask: Act or rule? Act by legislature is primary, anything made under an Act is subordinate.
- Ask: Is the rule inside the parent Act's power? If not, ultra vires.
- Remember: courts decide validity, Parliament scrutinises and can annul.
- Eliminate options that say subordinate legislation can override its parent Act. It cannot.
Common mistakes in Primary vs Subordinate Legislation and Judicial Control
Treating rules and regulations as primary legislation because they look like law.
They are binding and published like Acts.
Fix: Primary means passed by the legislature. Anything made under an Act's authority is subordinate.
Thinking subordinate legislation can override the parent Act.
Students think the executive rule is more detailed, so it must prevail.
Fix: The parent Act is superior. A conflicting rule is void to that extent.
Saying courts can never question an Act.
Confusing Parliament's law-making power with unlimited power.
Fix: Courts can strike down an Act that violates the Constitution or lacks legislative competence, though not for being merely unwise.
Mixing up substantive and procedural ultra vires.
Both end in the rule being invalid.
Fix: Substantive: no power for the content. Procedural: power existed but the required steps were skipped.
Believing delegated legislation is outside Parliament's control once made.
Students forget the laying procedure.
Fix: Rules are usually laid before Parliament, which can examine and modify or annul them.
Worked examples
Example 1
An Act authorises the Central Government to make rules about the manner of filing returns. The Government makes a rule imposing a new tax on traders. What is the position of this rule?
A) Valid, since the Government made it
B) Valid, since it is published
C) Void, as it is ultra vires the parent Act
D) Valid, as it is primary legislation
Show the solution
- The parent Act gave power only for the manner of filing returns.
- Imposing a new tax is a different matter, beyond that power.
- A rule made beyond the power given is substantively ultra vires.
- Publication does not cure lack of power, so B is wrong. The rule is subordinate, so D is wrong.
Answer: C) Void, as it is ultra vires the parent Act
Example 2
Which statement correctly compares primary and subordinate legislation?
A) Both are made only by Parliament
B) Primary is made by the legislature, subordinate under power delegated by an Act
C) Subordinate legislation can override the parent Act
D) Primary legislation can never be challenged in court
Show the solution
- Primary legislation is made directly by Parliament or a State Legislature.
- Subordinate legislation is made by an authority under the parent Act's power.
- A is wrong because subordinate law is made by other authorities.
- C is wrong because the parent Act prevails.
- D is wrong because courts can strike down an Act that violates the Constitution.
Answer: B) Primary is made by the legislature, subordinate under power delegated by an Act
Exam tips
- Look for the maker of the law first. It settles most primary versus subordinate questions.
- Treat options with always, never or can override as likely wrong.
- For validity questions, find what power the parent Act actually gave.
- Learn the two kinds of ultra vires, since questions test the difference.
- Remember both courts and Parliament keep delegated power in check.
Practice questions from Primary and Subordinate Legislation
- Which of the following is an example of subordinate legislation rather than primary legislation?
- A rule made by a Ministry under an Act is challenged because it imposes a tax that the parent Act never authorised. A court is most likely t…
- An Act authorises the Central Government to make rules 'for carrying out the purposes of the Act'. The rules must ordinarily be laid before …
- A trade association in a city has long followed a usage that a buyer may return goods within seven days. A newly enacted Central statute app…
- A Ministry frames rules under an Act. One rule conflicts directly with a provision in the parent Act itself. What is the legal position of t…
Primary vs Subordinate Legislation and Judicial Control: frequently asked questions
What is the difference between primary and subordinate legislation?
Primary legislation is an Act passed by Parliament or a State Legislature. Subordinate legislation is made by another authority under power given by an Act. It must stay within the parent Act.
What does ultra vires mean in delegated legislation?
It means beyond powers. If a rule goes beyond what the parent Act allows, or ignores the required procedure, a court can declare it invalid.
How do courts control delegated legislation?
Courts review a rule and can declare it void if it is ultra vires the parent Act or violates the Constitution. They check both the content and the procedure followed.
How does Parliament control delegated legislation?
Rules are usually laid before Parliament, which can examine them and modify or annul them. Committees also scrutinise them.