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Published : September 05, 2015 | Author : legalbharat
Category : Constitutional Law | Total Views : 3836 | Rating :

  
legalbharat
Kumar Bharat
 

Effectiveness of Parliamentary Control over Delegated Legislation

Written by: Shreaa Nath - 4th Year Student, B.A. L.L.B (Hons.), National University of Study and Research in Law, Ranchi and Bharat Kumar Singh - 5th Year Student, B.A. L.L.B (Hons.), National University of Study and Research in Law, Ranchi

Administrative law is the bye-product of the increasing socio-economic functions of the State and the increased powers of the government. Administrative law as a separate branch of legal discipline, especially in India, came to be recognized by the middle of the 20th century. Today the administration is ubiquitous and impinges freely and deeply on every aspect of an individual’s life. Therefore, administrative law has become a major area for study and research . Administrative Law has been characterized as the most outstanding legal development of the 20th century. Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties, rights and liabilities of the various organs of the government.

Administrative law has become very necessary in the developed society, as the relationship of the administrative authorities and the people have become very complex. In order to regulate these complex relations, some law has become the need of the hour; which may bring about regularity, certainty and may pose a check on the misuse of powers vested in the administration.

Administrative law can be traced to the well-organized administration under the Mauryas and Guptas, followed by the administrative system of Mughals; to the administration under the East India Company, the precursor of the modern administrative system . But in the modern society, the functions of the state are manifold. In fact, the modern state is regarded as the custodian of social welfare and consequently, there is not a single field of activity which is free from direct or indirect interference by the state. Along with duties and powers the state has to shoulder new responsibilities. The growth in the range of responsibilities of the state thus ushered in an administrative age and an era of Administrative law. Every delegate is subject to the authority and control of the principal and the exercise of delegated power can always be directed, corrected or cancelled by the principal. Hence parliamentary control over delegated legislation should be a living continuity as a constitutional remedy . The fact is that due to the broad delegation of legislative powers and the generalised standard of control also being broad, judicial control has shrunk, raising the desirability and the necessity of parliamentary control. The Parliamentary control over delegated legislation in USA and India is not as effective as in UK. In UK the laying off procedure is followed effectively because there all administrative rule-making is subjected to the control of Parliament through the Select Committee on Statutory instruments. In India the control is not very much effective. There are no statutory provisions regarding ‘laying’ of delegated legislation. Though the working of the Scrutiny committees is not very effective, yet they have proved to be an effective body in examining and improving upon the legislative control over delegated legislation. The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. Experiments can be made and experience can be profitability utilized. A law passed by Parliament has to be in force till the next session of the Parliament when it can be repealed. In situations, which require frequent adjustments, experimentation is the only answer. The underlying object of parliamentary control is to keep watch over the rule-making authorities and also to provide an opportunity to criticize them if there is abuse of power on their part. Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or parameters within which delegated legislation is made. In India, the question of control on rule-making power engaged the attention of the Parliament. The legislative control over administration in parliamentary countries like India is more theoretical than practical. In reality, the control is not that effective as it ought to be.

One of the most significant developments of the present century is the growth in the legislative powers of the executives. The development of the legislative powers of the administrative authorities in the form of the delegated legislation occupies very important place in the study of the administrative law. We know that there is no such general power granted to the executive to make law. The work of executive is limited to supplement the law under the authority of legislature. This type of activity has been described as delegated legislation or subordinate legislation. Delegated legislation refers to all law-making, which takes place outside the legislature and is generally expressed as rules, regulations, bye-laws, order, schemes, etc. In other words when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is known as delegated legislation . In modem times the sheer bulk of legislation required to effect the business of government is so great that if the legislative function were performed by Parliament alone, then the law-making machine would become choked and grind to a standstill.

Delegated Legislation

2.1 Meaning
Delegation of powers means the powers passed on by the higher authority to the lower authority to make laws. Delegated legislation means the powers given by the legislature to the executive or administration to enact certain laws. The simple meaning of the expression “delegated expression” may be:
When the function of the legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is known as delegated legislation.

According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses: (a) exercise by a subordinate agency of the legislative power delegated to it by the legislature, or (b) the subsidiary rules themselves which are made by the subordinate authority in pursuance of the power conferred on it by the legislature .”

The concept can be further substantiated with the help of an example. The Parliament of UK itself made the Road Traffic Act, 1930, and so the legislation is original (rather than delegated). Section 30 of that Act provides that, “the Minister [of Transport and Civil Aviation] may make regulations as to the use of motor vehicles, their construction and equipment.” Accordingly the Minister made the Motor Vehicles (Construction and Use) Regulations, 1955. The regulations were made by someone other than Parliament and are, therefore, delegated (rather than original) legislation.

Delegated legislation, also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purpose laid down in the Act.

Factors responsible for the growth of Delegated Legislation

Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by the Parliament, delegated legislation also came to be made by an authority to which the power was delegated by Parliament. There has been always a need for delegated legislation. The factors leading to the growth of delegated legislation may be summarised as below:
Parliamentary pressure
The bulk of the business of the Parliament has increased and it has no time for the consideration of complicated and technical matters. The Parliament cannot provide the society with the requisite quality and quantity of legislation because of lack of time. Most of the time of the Parliament is devoted to political matters, matters of policy and particularly foreign affairs.

To meet emergency
Certain emergency situations may arise which necessitate special measures. In such cases speedy and appropriate action is required. The Parliament cannot act quickly because of its political nature and because of the time required by the Parliament to enact the law. In such cases quick action needs to be taken. In times of war and other national emergencies, the executive is vested with special and extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two world wars.

Technicality of subject-matter
Certain matters covered by delegated legislation are of a technical nature which requires handling by experts. In such cases it is inevitable that powers to deal with such matters is given to the appropriate administrative agencies to be exercised according to the requirements of the subject matter. Parliament cannot provide for such matters as the members are at best politicians and not experts in various spheres of life. Therefore, it is convenient for the legislature to confine itself to policy statements only, as the legislators are generally ignorant of legal and technical skills.

Expediency and flexibility
The practice of delegated legislation introduces flexibility in the law. At the time of passing any legislative enactment, it is impossible to foresee all the contingencies. Legislative amendment is a slow and cumbersome process, but with the aid of delegated legislation, the executive can meet the situation expeditiously .

To experiment
The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. Experiments can be made and experience can be profitability utilized. A law passed by Parliament has to be in force till the next session of the Parliament when it can be repealed. In situations, which require frequent adjustments, experimentation is the only answer.

To meet unforeseen contingencies
Parliament while deciding upon a certain course of action cannot foresee the difficulties, which may be encountered in its execution. Accordingly various statutes contain a 'removal of difficulty clause' empowering the administration to remove such difficulties by exercising the powers of making rules and regulations. These clauses are always so worded that very wide powers are given to the administration.

Merits of Delegated Legislation
(i) Saves parliamentary time.
(ii) Government Ministers often consult interested bodies and parties before drafting statutory instruments.
(iii) Delegated legislation is more flexible than an Act of Parliament. It can be passed quickly and easily amended or revoked, so that the law is up to date. Therefore, it allows rapid change.
(iv) Delegated legislation helps in removing the difficulty clause and meet unforeseen emergencies expeditiously.
(v) Also helps in meeting situations of emergency and thus helps in reducing parliamentary pressure.

Demerits of Delegated Legislation
(i) Delegated legislation is not well publicised in contrast to debates on Bills in Parliament.
(ii) Parliament has insufficient time to scrutinise the laws. Parliament is not reviewing legislation properly.
(iii) Sub-delegation of powers a further problem, which causes complexity and confusion. It is impossible for anyone to keep abreast of all delegated legislation.
(iv) The large volume of delegated legislation produced every year (some 3,000 statutes annually) means that it is very difficult for Members of Parliament, let alone the general public, to keep up to date with the present law. This is exacerbated by the fact that delegated legislation is made in private, unlike Acts of Parliament which are made following public debates in Parliament.

Parliamentary Control over Delegated Legislation

One of the most significant developments of the present century is the growth in the legislative powers of the executive. The development of the legislative powers of the administrative authorities in the form of the delegated legislation occupies very important place in the study of the administrative law. We know that there is no such general power granted to the executive to make law; it only supplements the law under the authority of legislature. Such type of power is known as delegated legislation.

The underlying object of parliamentary control is to keep watch over the rule-making
authorities and also to provide an opportunity to criticize them if there is abuse of power on their part. Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or parameters within which delegated legislation is made. In India, the question of control on rule-making power engaged the attention of the Parliament.

Every delegate is subject to the authority and control of the principal and the exercise of delegated power can always be directed, corrected or cancelled by the principal. Hence parliamentary control over delegated legislation should be a living continuity as a constitutional remedy . The fact is that due to the broad delegation of legislative powers and the generalised standard of control also being broad, judicial control has shrunk, raising the desirability and the necessity of parliamentary control.

With regard to the control of the legislature over delegated legislation, M.P. Jain states:
In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to delegate its legislative power to the executive because of some reasons, it is not only the right of the Legislature, but also its obligation, as principal, to see how its agent i.e. the Executive carries out the agency entrusted to it. Since it is the legislature which grants legislative power to the administration, it is primarily its responsibility to ensure the proper exercise of delegated legislative power, to supervise and control the actual exercise of this power, and ensure the danger of its objectionable, abusive and unwarranted use by the administration.

In U.S.A., the control of the Congress over delegated legislation is highly limited because neither is the technique of “laying” extensively used nor is there any Congressional Committee to scrutinise it. This is due to the constitutional structurization in that country in which it is considered only the duty of courts to review the legality of administrative rule-making.

In England, due to the concept of Parliamentary sovereignty, the control exercised by Parliament over administrative rule-making is very broad and effective. Parliamentary control mechanism operates through “laying” techniques because under the provisions of the Statutory Instruments Act, 1946, all administrative rule-making is subject to the control of Parliament through the Select Committee on Statutory Instruments . Parliamentary control in England is most effective because it is done in a non-political atmosphere and the three-line whip does not come into operation.

In India parliamentary control of administrative rule-making is implicit as a normal constitutional function because the executive is responsible to the Parliament. There are three types of control exercised:
Direct General Control

Direct but general control over delegated legislation is exercised:
(a) Through the debate on the act which contains delegation. Members may discuss anything about delegation including necessity, extent, type of delegation and the authority to whom power is delegated.
(b) Through questions and notices. Any member can ask questions on any aspect of delegation of legislative powers and if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules.
(c) Through moving resolutions and notices in the house. Any member may move a resolution on motion, if the matter regarding delegation of power is urgent and immediate, and reply of the government is unsatisfactory./'

Direct special control
This control mechanism is exercised through the technique of “laying” on the table of the House rules and regulations framed by the administrative authority. The notable use of this technique was made in the Reorganization Acts of 1939 to 1969, which authorised the President to reorganise the executive government by administrative rule-making. In England the technique of laying is very extensively used because all the administrative rule-making is subject to the supervision of Parliament under the Statutory Instruments Act, 1946 which prescribes timetable. The most common form of provision provides that the delegated legislation comes into immediate effect but is subject to annulment by an adverse resolution of either house.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required to be laid before Parliament after being made, a copy shall be laid before each House before the legislation comes into operation . However, if it is essential that it should come into operation before the copies are laid, it may so operate but notification shall be sent to the Lord Chancellor and the Speaker of the House of Commons explaining why the copies were not laid beforehand. Under Section 6 of the Statutory Instruments Act, 1946, the draft of any statutory instrument should be laid before the parliament.

Laying on Table
In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as to what all rules have been made by the executive authorities in exercise of delegated legislation, secondly, it provides a forum to the legislators to question or challenge the rules made or proposed to be made.

Types of ‘Laying’
The Select Committee on delegated Legislation summarised the laying procedure under following heads :
Laying without further provision for control
In this type of laying the rules and regulations come into effect as soon as they are laid. It is simply to inform the House about the rules and regulations.

Laying with immediate effect but subject to annulment
Here the rules and regulations come into operation as soon as they are laid before the Parliament. However, they cease to operate when disapproved by the Parliament.

Laying subject to negative resolution
In this process the rules come into effect as soon as they are laid before the Parliament, but shall cease to have effect if annulled by a resolution of the House.

Laying subject to affirmative resolution
This technique takes two forms: firstly, that the rules shall have no effect or force unless approved by a resolution of each House of Parliament, secondly, that the rules shall cease to have effect unless approved by an affirmative resolution.

Laying in draft subject to negative resolution
Such a provision provides that when any Act contains provision for this type of laying the draft rules shall be placed on the table of the House and shall come into force after forty days from the date of laying unless disapproved before that period.

Laying in draft subject to affirmative resolution
In this type of laying the instruments or draft rules shall have no effect unless approved by the House.
In India, there is no statutory provision requiring ‘laying of’ of all delegated legislation . In the absence of any general law in India regulating laying procedure, the Scrutiny Committee made the following suggestions:
(i) All Acts of Parliament should uniformly require that rules be laid on the table of the House ‘as soon as possible’.
(ii) The laying period should uniformly be thirty days from the date of final publication of rules; and
(iii) The rule will be subject to such modifications as the House may like to make.

Legal consequences of non-compliance with the laying provisions
In England the provisions of Section 4(2) of the Statutory Instruments Act, 1946 makes the laying provision mandatory for the validation of statutory instruments . In India, however, the consequences of non-compliance with the laying provisions depend on whether the provisions in the enabling Act are mandatory or directory.

In Narendra Kumar v. Union of India, the Supreme Court held that the provisions of Section 3(5) of the Essential Commodities Act, 1955, which provided that the rules framed under the Act must be laid before both Houses of Parliament, are mandatory, and therefore Clause 4 of the Non-Ferrous Control Order, 1958 has no effect unless laid before Parliament.

However, in Jan Mohammad v. State of Gujarat, the court deviated from its previous stand. Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained a laying provision but the rules framed under the Act could not be laid before the Provincial legislature in its first session as there was then no functioning legislature because of World War II emergency. The rules were placed during the second session. Court held that the rules remained valid because the legislature did not provide that the non-laying at its first session would make the rules invalid.

Even if the requirement of laying is only directory and not mandatory, the rules framed by the administrative authority without conforming to the requirement of laying would not be permissible if the mode of rule-making has been violated.

Indirect control
Indirect control is exercised by Parliament through its Committees. With a view to strengthen Parliamentary control over delegated legislation, Scrutiny Committees were established . In UK and India, there are Standing Committees of Parliament to scrutinise delegated legislation. In the USA, on the other hand, there is no equivalent to such committees, the responsibility being diffused. The responsibility is shared but a host of committees – standing committees in each House of Congress, committees on government operation in each house, and some other joint bodies like the committee on atomic energy . In England, the Select Committee on Statutory Instruments was established by the House of Commons in 1944 . In 1950, the Law Minister made a suggestion for the establishment of a Committee of the House on the pattern of the Select Committee on Statutory Instruments, 1944, to examine delegated legislation and bring to the notice of the House whether administrative rule-making has exceeded the intention of the Parliament or has departed from it or has affected any fundamental principle.

Such a committee known as the Committee on Subordinate Legislation of Lok Sabha was appointed on December 1, 1953 . The main functions of the Committee are to examine: (i) whether the rules are in accordance with the general object of the Act, (ii) whether the rules contain any matter which could more properly be dealt with in the Act, (iii) whether it is retrospective, (iv) whether it directly or indirectly bars the jurisdiction of the court, and questions alike. The Committee has between 1953 and 1961, scrutinized about 5300 orders and rules has submitted 19 reports .
There is also a similar Committee of the Rajya Sabha which was constituted in 1964. It discharges functions similar to the Lok Sabha Committee.

Recommendations by the committee on subordinated legislation

The Committee on Subordinate Legislation has made the following recommendation in order to streamline the process of delegated legislation in India .
(i) Power of judicial review should not be taken away or curtailed by rules.
(ii) A financial levy or tax should not be imposed by rules.
(iii) Language of the rules should be simple and clear and not complicated or ambiguous.
(iv) Legislative policy must be formulated by the legislature and laid down in the statute and power to supply details may be left to the executive, and can be worked out through the rules made by the administration.
(v) Sub-delegation in very wide language is improper and some safeguards must be provided before a delegate is allowed to sub-delegate his authority to another functionary.
(vi) Discriminatory rules should not be framed by the administration.
(vii) Rules should not travel beyond the rule-making power conferred by the parent Act.
(viii) There should not be inordinate delay in making of rules by the administration.
(ix) The final authority of interpretation of rules should not be with the administration.
(x) Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has proved to be a fairly effective body in properly examining and effectively improving upon delegated legislation in India. Sir Cecil Carr aptly remarks: “It is evidently a vigorous and independent body .”

Therefore, legislature exercises its control over the delegated legislation or the rule-making power by these two methods: namely, ‘laying’ procedure and via Scrutiny committees. However, to what extent these two methods are effective in posing a check and control over delegated legislation, is the question which needs to be taken into consideration. The effectiveness of parliamentary control over delegated legislation has been discussed in the next chapter.

 

Effectiveness of Parliamentary Control over Delegated Legislation

Is Parliamentary control really effective?
In India
The legislative control over administration in parliamentary countries like India is more theoretical than practical. In reality, the control is not that effective as it ought to be. The following factors are responsible for the ineffectiveness of parliamentary control over delegated legisplation in India :
(i) The Parliament has neither time nor expertise to control the administration which has grown in volume as well as complexity.
(ii) The legislative leadership lies with the executive and it plays a significant role in formulating policies.
(iii) The very size of the Parliament is too large and unmanageable to be effective.
(iv) The majority support enjoyed by the executive in the Parliament reduces the possibility of effective criticism.
(v) The growth of delegated legislation reduced the role of Parliament in making detailed laws and increased the powers of bureaucracy.
(vi) Parliament’s control is sporadic, general and mostly political in nature.
(vii) Lack of strong and steady opposition in the Parliament have also contributed to the ineffectiveness of legislative control over administration in India.
(viii) There is no automatic machinery for the effective scrutiny on behalf of the Parliament as a whole; and the quantity and complexity are such that it is no longer possible to rely on such scrutiny.

In England

In England the technique of laying is very extensively used because the administrative delegation is subject to the supervision of the parliament under the Statutory Instruments Act, 1946, which prescribes a timetable. The most common form of provision provides that the delegated legislation comes into immediate effect but is subject to annulment by an adverse resolution of either House.

In U.S.A

In U.S.A., the control of the Congress over delegated legislation is highly limited because neither is the technique of “laying” extensively used nor is there any Congressional Committee to scrutinise it.
Recommendations
(i) The precise limits of the law-making power which Parliament intends to confer on a Minister should always be expressly defined in clear language by the statute which confers it, when discretion is conferred, its limits should be defined with equal clearness.

(ii) The use of the so-called “Henry VIII Clause” conferring power on a Minister to modify the provisions of Acts of Parliament should be abandoned in all but the most exceptional cases, and should not be permitted by Parliament.

(iii) The “Henry VIII Clause” should never be used except for the sole purpose of bringing an Act into operation; and should be subject to a time limit of one year from the passing of the Act.

(iv) The use of clauses designed to exclude the jurisdiction of the Courts to enquire into the legality of a regulation or order should be abandoned in all but the most exceptional cases.

(v) Enabling Act should contain express provisions that the rules made there-under would be subject to such modifications as the House may like to make.

Conclusion
If in India parliamentary control over delegated legislation is to be made a living continuity, it is necessary that the role of the committees of the Parliament must be strengthened and a separate law like the Statutory Instruments Act, providing for uniform rules of laying and publication, must be passed. The committee may be supplemented by a specialised official body to make the vigilance of delegated legislation more effective. Besides this other measures should be taken to strengthen the control of Parliament over delegated legislation.

The Parliamentary control over delegated legislation in USA and India is not as effective as in UK. In UK the laying off procedure is followed effectively because there all administrative rule-making is subjected to the control of Parliament through the Select Committee on Statutory instruments. In India the control is not very much effective. There are no statutory provisions regarding ‘laying’ of delegated legislation. Though the working of the Scrutiny committees is not very effective, yet they have proved to be an effective body in examining and improving upon the legislative control over delegated legislation.

End Notes:
# The first seminar on administrative law was organized by the Indian law Institute, New Delhi in December, 1957, right after its inauguration. Since then the major area of activity of the Institute has been administrative law.
# Dr. Sunita Zalpuri, Training Package on administrative law, Associate Professor, J & K. Available on ,
# Avinder Singh v. State of Punjab, (1979) 1 SCC 137.
# Halsbury’s Laws of England, 4th Ed., Vol. 44, p. 981-984.
# C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, 3rd Ed., 2007, p. 59.
# Treatise on Administrative Law, 1996, Vol. 1, p. 51.
# Supra Note 6, at p. 61-62.
# Available on ,
# Available on ,
# Gary Slapper, The English Legal System, Taylor & Francis, 2009, p. 97.
# Avinder Singh v. State of Punjab, (1979) 1 SCC 137.
# Treatise on administrative law, 1996, Vol. I, P. 136.
# I.P. Massey, Administrative Law, Eastern Book Company, 6th Ed., 2005, p. 102.
# Supra Note 6, at p. 133.
# Delegated Legislation in India, ILI, 1964, p. 166-169.
# Supra Note 6, at p. 135.
# C.K. Thakker, Administrative Law, Eastern Book Company, 1992, p. 152.
# R v. Sheer Metalcraft, (1954) 1 All ER 542.
# AIR (1960) SC 430.
# AIR (1966) SC 385.
# Supra Note 14, at p. 108.
# Monica Chawla, Delegation of Legislative Powers, Deep & Deep Publications, 2007, p. 69. Available on: http://books.google.co.in/books?id=XNpAlSfKkCkC&dq=delegated legislation legislative control effectiveness&source=gbs_navlinks_s
# Supra Note 14, at p. 109.
# Parliamentary Control of Delegated Legislation, Public Law, 1956, p. 200.
# Laxmikanth, Public Administration, Tata MC-Graw-Hill Education, p. 212, available on: http://books.google.co.in/books?id=9JcCVqJ14gC&dq=is parliamentary control over delegated legislation effective&source=gbs_navlinks_s
# Geoffrey Philip Wilson, Cases and Materials on Constitutional and Administrative Law, CUP Archive, 1976, p. 362.

 

The author can be reached at: bharatkumar@legalserviceindia.com




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Article Comments

Posted by amit on October 12, 2015
PRS legislative research has given statistic regarding the same...and found that legislative control is just a myth. These committees just scrutinised 4 rule in 9 years

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