Karnataka Amendment Conferring Judicial Magistrate's Power To Decide Delayed Birth/ Death Registration Upon Executive Authority Ultra Vires: High Court

The Karnataka High Court has declared the Karnataka Registration of Births and Deaths (Amendment) Rules, 2022 by which it amended Rule 9 of the Births and Deaths Rules, 1999, and conferred powers on Revenue officials to decide on application for delayed registration of births and death, as ultra vires, the Registration of Births and Deaths Act, 1969.

The State Government by the amendment had substituted the words in sub-rule (3) of Rule 9 which hitherto read “a Magistrate of First Class or a Presidency Magistrate” with the words “an Assistant Commissioner (Sub-Divisional Magistrate)”. The State Government had taken away the power of the Magistrate of the First Class and placed it at the mercy of the Assistant Commissioner.

A single judge bench of Justice M Nagaprasanna allowed the petition filed by Advocate Sudarshan V Biradar, obliterated the amendment Rules notified on 18.07.2022 and said “If the amendment Rule of 2022 is not obliterated “it would be permitting the tail to wag the dog.”

The bench held that “The amendment to Rule 9 of the Rules as notified on 18.07.2022 travels beyond the parent Act i.e., the enabling Act, as the amendment runs completely counter to sub-section (3) of Section 13 of the Act for it is inconsistent with the said provision of law. Therefore, the amendment Rules notified on 18.07.2022 would lose its legal legs to stand, as it is not intra vires the Act, but ultra vires; if it is ultra vires the parent Act, it cannot but be held to be illegal and a nullity.”

On 18.07.2022, the Government of Karnataka brought in an amendment to Rule 9 of the Rules of 1999 substituting the words ‘a Magistrate of First Class or a Presidency Magistrate’ to that of an ‘Assistant Commissioner (Sub-Divisional Magistrate)’.

Representations were submitted to the Government by the Karnataka State Bar Council seeking deletion of the amendment or withdrawal of the amendment. Reasons were indicated in the representation as to why the amendment was unworkable. When the State did not heed to the representation of the Karnataka State Bar Council, the petitioner approached the court, contending that the amendment Act runs counter to the parent Act and is therefore, ultra-vires the parent Act and to be quashed on account of it being unconstitutional.

The Union of India also submitted “Rule cannot take away the judicial power that was given under sub-rule (3) of Rule 9 of the 1999 Rules and place it at the mercy of the bureaucrats.”

However, the government defended its action by submitting that they have only followed every other State Government who have given the power to the Revenue Authorities in cases where the births and deaths are registered after a long delay and therefore, the State Government has brought in this amendment to be in tune with every other State.

Findings:

The bench noted Sub-section (3) of Section 13 mandates that any birth or death which has not been registered within one year of its occurrence can also be registered and such registration shall happen only after an order by a Magistrate of the First Class or a Presidency Magistrate under sub-section (3) on verifying the correctness of the birth or death. Section 30 empowers the State Government to make Rules to carry out purposes of the Act.

Then the bench said “The power to make Rules is delegated to the State Governments under Section 30 of the Act. Therefore, the Rules that are made are delegated legislation. Delegated legislation can be challenged before the Courts on the ground that it is ultra vires the parent Act. The Court examining the said issue can adjudge the legality and validity of the delegated legislation on the touchstone of the doctrine of ultra vires.”

Noting that under Section 13 (3) of the Act, it is the judicial power conferred upon the First Class Magistrate under the Act and such registration on delay can be only on an order made by the Magistrate, the bench said

“The power conferred under the Act is neither quasi judicial nor administrative, it is “Judicial”. If Section 13 of the Act confers certain judicial power upon a Magistrate, it is trite that the Rules cannot take it away by going beyond or deviating from what is mandated under the Act.”

Following which it held the amendment to Rule 9 runs counter to the Act. "The amendment to the Rule, a delegated legislation, is to the effect that the parent Act itself is amended,” it said.

Accordingly it allowed the petition and declared that all actions taken in furtherance of the said notification are declared to be a nullity in law.

Also Read: Only Judicial Magistrate & Not Executive Magistrate Empowered To Verify Correctness Of Delayed Registration Of Births & Deaths: Madhya Pradesh HC

Case Title: Sudarshan V Biradar And State of Karnataka

Case No: WRIT PETITION No.15800 OF 2022

Citation: 2023 LiveLaw (Kar) 155

Date of Order: 17-04-2023

Appearance: Senior Advocate P.P.Hegde for Advocate Venkatesh Somareddi for petitioner.

AGA B V Krishna for R1, R2.

DSGI H Shanthi Bhushan for R3.