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LL.M Final year student and Practicing Advocate in Sessions court.
Delegated Legislation Development and Parliamentary Control
The issue of delegated legislation has been one of the most debated issues in the domain of legal theory because of its various implications. Scholars have consistently presented differing and even contradicting views about delegation of power to legislate and have thus taken different stands on the issue.
While Delegated Legislation has been a widespread practice in modern times and is almost an accepted norm, there have been contrary views. For instance Cooley has expressed a staunchly critical view of the power to delegate. He has stated that "One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust."Further he has also observed that "No legislative body can delegate to another department of the government, or to any other authority, the power, either generally or specially, to enact laws. The reason is found in the very existence of its own powers. This high prerogative has been entrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it."While such positions do raise the questions about the propriety of delegating the power to legislate by higher legislative bodies to the lower ones, the fact remains that this has been a general practice followed in all modern democratic countries. Hence it is important to understand what is firstly meant by delegated legislation and then analyse its various aspects.
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.
Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or empowering another to act as an agent or representative’. E.g. Delegation of Contractual Duties.
The Dictionary further defines ‘Doctrine of Delegation’ as:
“The Principle (based on the Separation of Powers Concept) limiting Legislature’s ability to transfer its legislative power to another Governmental Branch, especially the Executive Branch.”
‘Subordinate Legislation’ has been defined as:
“Legislation that derives from any authority other than the Sovereign Power in a state and that depends for its continued existence and validity on some superior or supreme authority.”
The Principle of Delegated Legislation has been defined as:
“This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.”
Delegated Legislation: 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.
Types of Delegated legislation: -
1.Power to bring an Act into operation: -eq: on rule date on the Govt. by notification in the Gazette. Example: on such date as the government by notification in the gazette because govt. has better knowledge of the practical exigencies of bringing the law into force. The Court Cannot Ask the Govt. to bring the law into force. It was held inA.K. Roy. v. UOI AIR 1982 SC 710where the constitution of the Advisory Board was in question and the term qualified to be a High Court judge changed to actual or had been a High Court judge. National Security Act. 1980 did not have this provision it was held by that the court cannot ask the Govt. to implement.
2.Conditional Legislation: -The legislation makes the law but leaves it to the executive to bring the act into operation when conditions demanding such operation are obtained.
(a) To bring an act into operation.
(b) To extend the application of any act in force in one territory.
(c) To extend or to except from the operation of an Act certain categories of subjects or territories.
Reasons for Growth of Delegated Legislation
(a) Pressure upon parliamentary time: The horizons of state activities are expanding. The bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature formulates the general policy – the skeleton and empowers the executive to fill in the details – thus giving flesh and blood to the skeleton so that it may live- by issuing necessary rules, regulation, bye-laws etc.
In the words of Sir Cecil Carr,‘ delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business. The Committee on Ministers’ powers has rightly observed: “The truth is, that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality and legislation which modern public opinion requires.”
(b) Technicality: Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. These matters are required to be handled by experts. Here, the legislative power may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs, electricity etc.
(c) Flexibility: Parliament cannot foresee all the contingencies while passing on enactment. To satisfy these demands of unforeseen situation some provisions are required to be made. A legislative amendment is a slow and cumbersome process. But by the device of delegated legislation the executive can meet the situation expeditiously, e.g. bank rate, police regulations, export and import, foreign exchange etc. Therefore, in a number of statutes a ‘removal of difficulty’ clause has been added empowering the administration to overcome such difficulties by exercising delegated power. This Henry VIII clause confers very wide power son the Government.
(d) 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. As for example, in road traffic matters, an experiment may be conducted and in the light of its application necessary changes could be made. The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary and utilize the result of his investigation and experiments in the best possible way. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand, if they are found to be defective, the defects can be cured immediately.
(e) Emergency: In times of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient- indeed the only possible remedy. Therefore, in times of war and other national emergencies, the executive is vested with extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two world wars similarly in cases of epidemics, floods, inflation, economic depression etc. immediate remedial actions are necessary which may not be possible by lengthy legislative process and delegated legislation is the only convenient remedy.
(f) Complexity of modern administration: The complexity of modern administration and the expansion of the functions of the state to the economic and social sphere have rendered it is necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. In a country like Bangladesh, where control and regulation over private trade, business or property may be required to be imposed, it is necessary that the administration should be given ample power to implement such policy so that immediate action can be taken.
Therefore, there has been rapid growth of delegated legislation in all countries and it becomes indispensable in modern administrative era.
Growth of Administrative Process bulk of law comes from the administrators.
1. Law making or ever widening modern welfare and service state is not possible. For the nature and quality of work required 365 days – may not be sufficient and if overburdened the parliament can’t give quality legislation. Also it is occupied with important policy matters and rarely finds time to discuss matters of details.
2. Filling in Details of legislation- The executive in consultation with the experts or with its own experience of local conditions can better improvise. Also legislation has become highly technical because of the complexities of a modern govt.
3.Need for flexibility - Ordinary legislative process suffers from the limitation of lack of experiment. A law can be repeated by parliament itself, if it required adjustment administrative rule making is the only answer between two sessions.
4. Meeting Emergency Situations – it is a cushion against crisis because what if crisis legislation is needed.
5. When Govt. action required discretion – rule making power of administrative agencies is needed when the government needs to have discretion to carry out the policy objectives.
6. Direct participation of those who are governed is mere possible in delegated legislation.
Limitations on Delegated Legislation
1. The Legislature cannot delegateEssential Legislative Functionswhich consist in the determination or choosing of the Legislative Policy and of formally enacting that policy into a binding rule of conduct.
Justice Cardozo famously stated that the Legislature cannot delegate ‘uncanalized and uncontrolled power’, the power delegated must not be unconfined and vagrant, but must be canalized within banks that keep it from overflowing.
2. Thus what is permitted is the delegation of ancillary or subordinate legislative functions or a power to fill up the details.
3. Whether any particular legislation suffers fromExcessive Delegationhas to be decided by courts having regard to the subject-matter, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted.
4.Essential Legislative Functions include the power to repeal or modify a law and cannot be delegated.
5. In the absence of anexpress or impliedpower to that effect, Delegated Legislation, be it a rule, bye-law or a notification, cannot haveretrospective operation.
6.A power to Tax or levy any feecannot be inferred from mere generality of the powers conferred by the enabling enactment. Such power of imposition of tax or fee by Delegated Authority must be veryspecificand there is no scope of implied authority for imposition of such tax or fee.
7. One of the important conditions prescribed underSection 23of the General Clauses Act, 1897 is that the authority having power to make the rules or bye-laws shall, before making them, mustpublish a draftof the proposed rules or bye-laws for the information of person likely to be affected thereby.
8. Where the delegating statute itself is ultra vires to the Constitution of India, the rules made under such statute are also unconstitutional.
9. The power to modify the parent statute is limited to bringing about consequential changes and cannot be exercised to subvert the policy laid down by the legislature. No radical change in the enacted law is permitted.
10. The legislature is the master of policy and if the delegate is free to switch policy it may be usurpation of legislative power itself.
11.Delegated Legislation may also be declared invalid on the following grounds:
A. Violation of the Constitution of the India.
B. Violation of the Enabling Act.
C. Violation of Principles of Natural Justice when the Statute itself provides of such requirement.
Constitutionality of Delegated Legislation
Position in the USA: Two phenomena operate in the USA namely—
1. Separation of Power and
2. “Delegatus non potest delegare”.
Since Congress was itself a delegate, how can it delegate its power. The framers of the American Constitution were imbued with the political theories propagated by John Locke and Montesquieu. John Locke has said: "The legislature cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others."
According to Locke "the legislature neither must, nor can, transfer the power of making laws to anybody else, or place it anywhere but where the people have. "Montesquieu had developed this doctrine of separation of powers.
The framers of the American Constitution adopted the doctrine in its full force as seen in the provisions of the US Constitution: Art. 1, section 1. All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.
Art. 2, section 1. The executive power shall be vested in a President of the United States of America.
Art. 3, section 1. The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress many, from time to time, ordain and establish.
Alongside this doctrine of separation of powers the American constitutional law had another doctrine which also negatived the delegation of power. Sutherland has stated "incident to the separation-of-powers doctrine was the corollary that legislative power could not be exercised by any agency of the government save the legislature."
"The rule against the delegation of legislative powers, if there is such a rule, is broader than any doctrine of separation of powers. That part of its which forbids the delegation of powers to other branches or the government comes within the doctrine of separation of powers. That part of it which forbids the delegation of powers to independent boards or commissions rests upon the maximdelegata potestas non potest delegare." Therefore the powers thus delegated are not legislative powers. They are instead administrative or quasi-legislative powers."
Position in England: In England the Parliament is Supreme, unhampered by any constitutional limitations with wide legislative powers on the executive. Parliament being supreme and it power to legislate being unlimited, there is nothing to prevent Parliament from delegating its legislative power to the executive officers or other subordinate bodies. Sir Cecil Carr in this "Delegated Legislation" quoted in the Report of the Committee on Ministers' Powers, usually referred to as the Donoughmore Committee, said : "The first and by the far smallest part is made by the Crown under what survives of the prerogative.
The second and weightiest part is made by the King in Parliament and consists of what we call Acts of Parliament. The third and bulkiest part is made by such persons or bodies as the King in Parliament entrusts with legislative power." As observed by Sir Cecil Carr, "the truth is that if Parliament were not willing to delegate law-making power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires." In England, the practice of delegating legislative power has certainly been facilitated by the close fusion of the legislative and executive power resulting from the development the cabinet system of government in England.
Position in India
Pre Independence: Queen v. Burah wherein the Privy Council had validated only Conditional Legislation and therefore as per its reasoning delegated legislation is not permitted. The administration of civil and criminal justice within the said territory was vested in such officers as the Lieutenant-Governor may from time to time appoint. Sections 8 and 9 of the said Act provided as follows: - "Section 8. The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor-General, or of the said Lieutenant-Governor, for making laws and regulations, and may on making such extension direct by whom any powers of duties incident to the provisions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation."
"Section 9- The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India. It was held that Indian legislators have plenary powers and it exercised the power in its own right and not as an agent or a delegate of the British parliament.
The Privy Council laid down that “seeking of assistance of a subordinate agency in the framing of rules and regulations which are to become a part of the law and conferring on another body the essential legislative functions which under the constitution should be exercised by the legislature itself. It also stated that the essential legislative function consists in the determination or choosing of the legislative policy and formally enacting that policy into binding rule of conduct.
Also in King v. Benoari Lal Sharma Conditional legislation was again applied by the privy council wherein the validity of an emergency ordinance by the Governor-General of India was challenged inter alia on the ground that it provided for setting up of special criminal courts for particular kinds of offences, but the actual setting up of the courts was left to the Provincial Governments which were authorised to set them up at such time and place as they considered proper. The Judicial Committee held that "this is not delegated legislation at all. It is merely an example of the not uncommon legislative power by which the local application of the provisions of a statute is determined by the judgment of a local administrative body as to its necessity." The privy council held that “Local application of the provision of a state is determined by the judgment of a local administrative body as to its necessity.” Also the Federal Court inJatindra Nath v State of Bihar AIR 1949 FC 175held that power of extension with modification is unconstitutional as legislative power cannot be delegated. Wherein the S. 1 (3) of Bihar maintenance of public order Act, 1948 was challenged – as it gave power of extension of modification to provincial Govt. but this case But created doubts on the limits of delegation.
Post – Independence: The Delhi Laws Act, 1912, giving power to the Government to extend to Delhi and Ajmer-Marwar with such restrictions and modifications as it thought fit any law in force in any other part of India, was held intra vires- The case also discussed the validity of the law empowering the Government to extend to part C States any law in force in a part A state and to repeal existing laws-- It was held ultra vires under article 143 of the Constitution asking the Court's opinion on the three questions submitted for its consideration and report. Section 2 of the Part C States (Laws) Act, 1950, runs as follows:-"Power to extend enactments to certain Part C States. - The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.
The three sections referred to in the three questions are all in respect of what is described as the delegation of legislative power and the three particular Acts are selected to raise the question in respect of the three main stages in the constitutional development of India. The first covers the legislative powers of the Indian Legislature during the period prior to the Government of India Act, 1915. The second is in respect of its legislative power after the Government of India Act, 1935, as amended by the Indian Independence Act of 1947. The last is in respect of the power of the Indian Parliament under the present Constitution of 1950.
As regards constitution of the delegation of legislative powers the Indian Legislature cannot be in the same position as the prominent British Parliament and how far delegation is permissible has got to be ascertained in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said that an unlimited right of delegation is inherent in the legislature power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated in the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard laid down the courts cannot and should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. These, in my opinion, are the limits within which delegated legislation is constitutional provided of course the legislature is competent to deal with and legislate on the particular subject-matter. It is in the light of these principles that I propose to examine the constitutional validity of the three legislative provisions in respect to which the reference has been made.
In case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569in which S.3(1)(f) wherein the Bihar & Orissa Act, empowered the local administration to extend to Patna the provisions of any sections of the act ( Bengal Municipality Act, 1884) subject to such modification, as it might think fit. The government picked up section 104 and after modifications applied it to the town of Patna. One of the essential features of the Act was the provision that no municipality competent to tax could be thrust upon a locality without giving its inhabitants a chance of being heard and of being given as opportunity to object. The sections which provided for an opportunity to object were excluded from the notification. It was held as amounting to tamper with the policy of the Act.
In Lachmi Narain v. UOI (1976 2) SCC 95where the validity of Section 2 of Union Territories (Laws) Act, 1950 and Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be determined. The issue was that whether notification issued by Central Government in purported exercise of its powers under Section 2 ultra vires of Central Government.
LEGISLATIVE CONTROL ON 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 which 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.
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, inJan 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 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.”
Effectiveness of Parliamentary Control over Delegated Legislation
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 legislation 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 has 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.
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.
# Cooley's Constitutional Limitations, Volume I at page 224
# Cooley Constitutional Law 4th Edition, page 138
# Halsbury’s Laws of England, 4th Ed., Vol. 44, p. 981-984.
# Ajoy Kumar Banerjee & Ors. Etc v. Union of India & Ors., AIR 1984 SC 1130
# C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, 3rd Ed., 2007, p. 59.
# A.K. Roy. v. UOI AIR 1982 SC 710
# In re, Article 143, Constitution of India, AIR 1951 SC 332.
# Panama Sugar Refining Co. v. Ryan, 293 US 388.
# Bhatnagar & Co. v. Union of India, AIR 1957 SC 478.
# India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326.
# Ahemdabad Urban Development Authority v. Sharad Kumar Jayanti Kumar Pasawalla, AIR 1992 SC 1393.
# Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569.
# Avinder Singh v. State of Punjab, AIR 1979 SC 321.
# John Locke, in his Civil Government, article 141
# Ibid article 142
# Montesquieu in his Esprit Des Lois
# Sutherland's Statutory Construction, 3rd Edn., Vol. 1, p. 56
# Jatindra Nath v State of Bihar AIR 1949 FC 175
# In Re Delhi Laws Act, 1912 AIR 1951
# Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569
# Lachmi Narain v. UOI (1976 2) SCC 95
# dspace.cusat.ac.in/.../The Problem of Delegation of Legislative P