Parliamentary Control over Delegated Legislation

LF482 : Administrative Law

Submitted By : Muskan Harlalka

Enrolment no. : 190262
Course Instructor : Ms. Sangeeta Jakhar
Assistant Professor
School of Law
Mody University of Science and Technology
INTRODUCTION

The increasing role of the state in social security, employment, education, and the general
governance of the people that constitute the state has led to the executive performing not merely
the role of the executor of the laws. The executive has had its role vastly expanded, with it
reaching into the functions of the legislative and the judiciary also. The judicial functions that the
executive performs are described as ‘quasi-judicial functions’ and are permissible within certain
limits while adhering to certain parameters.

The products of the legislative functions that the executive performs are known as ‘delegated
legislations’. They may also be referred to as ‘subordinated legislations’ or may specifically be
referred to by the type of delegated legislation they are, such as ‘rules’, ‘regulations’,
‘notifications’, etc. The eminent jurist Salmond has opined that supreme legislations emanate
from the sovereign and therefore delegated or subordinated legislations are products of an
authority that is something other than the sovereign.1

REASONS FOR GROWTH OF DELEGATED LEGISLATION

There is no doubt that it is the twentieth century which has witnessed rapid growth of delegated
legislation in almost all legal systems of the world. But that does not mean that it is the new
phenomenon or there was no delegation of legislative power by legislature to executive in the
past. There are many factors which are responsible for the rapid growth of delegated legislation
In every modern democratic state. The traditional theory of ‘laissez faire’ has been given up by
every state and the old ‘police state’ has now become a ‘welfare state’. Because of these changes,
the role of the delegated legislation has become essential and inevitable.2

The Committee On Ministers’ Powers laid down certain factors which are responsible for the
growth of delegate legislation which are:

a) Pressure upon parliamentary time. :- As the nature of the state activities are
expanding, the bulk of legislations is so vast that it is not possible for the legislature to

1
CK Takwani, Lectures on Administrative Law 65-66 (6th ed 2017).
2
Jyoti Parshad v. Union Territory of Delhi, A.I.R. 1961 S.C. 1602.
 devote sufficient time as required to discuss all the Matters in growth. Therefore, the
legislature formulated the general policy and empowers the executive to fill in the details.
b) Technicality :- The subject matter on which the legislation is required to be made is so
technical in nature that the legislator, being a common man is not able to legislate upon it
and there comes to the rescue the assistance of the experts. Therefore, the legislative
powers may be conferred on the experts to deal with the technical problems e.g. gas,
atomic energy, drugs, electricity etc.
c) Flexibility :- At the time of passing any legislative enactment, it becomes impossible to
see any contingencies that may arise. Therefore in that case a legislative amendment is a
slow and cumbersome process but by the device of delegated legislation, the executive
can meet the situation expeditiously.
d) Emergency :- In time of emergency, quick action is required to be taken. Though the
legislative process Is overburdened with lot many things and with the growing changes, it
is not possible for The legislature to provide for the urgent solution to meet the situation.
The only thing that Comes to the rescue is the delegated legislation. Therefore, in the
case of war, external Aggression, ‘bandh’ etc. the executive is vested with special wide
powers to deal with this Situation.3

DELEGATED LEGISLATION IN INDIA

The development of subordinate or delegated legislations maybe split into two distinct time
Periods in India. These are the pre-constitutional and the post-constitutional periods. As India
Credits a large portion of its legal history with Britain due to our colonial past, the positions of
Both jurisdictions on the matter of delegated legislations have also been comparably similar.

However, the unbridled supremacy of the Parliament is not a feature in India as it is in the United
Kingdom and this significant departure leads to some differences. The legality of delegated
legislations in India has developed largely through addressed in the sections that Follow.4

3
Mishika Bhargava, A Comparative Study On Parliamentary Control Over Delegated Legislation, 4 IJLDAI, 109, 111-
112.
4
Mr. Abhijit B And Ms. M. Vamsi Mohana, Delegated Legislation: A Study of Its History, Evolution, And
Contemporary Position in India, United States of America and United Kingdom, 3 International Journal Of Law
Management & Humanities, 690, 692-693.
 a) Pre-Constitution Period:- In case of R. v. Burrah5, which is considered to be the
leading authority on the subject, by The Act of XXII of 1869, the area of Garo hills was
removed from the jurisdiction of civil And criminal courts, and by Section 9, the
lieutenant governor was empowered to extend mutatis mutandis all or any of the
provisions of act applicable to Khasi, Jaintia and Naga Hills in the Garo hills. Later, the
lieutenant governor extended all the provisions of the Act To the district of Khasi and
Jaintia hills.
The appellant who were convicted of murder Challenged the said notification. The High
Court of Calcutta6, upheld the contentions of Appellants and held that section 9 of the act
as ultra vires.
On appeal the Privy Council reversed the decision of Calcutta High Court and held that
Indian legislature was not a delegate of the imperial parliament and it had plenary powers
Of legislation as those of imperial parliament itself. Here in this case, the governor
general Did not create a new legislative power but only extend the provisions of the act
enacted but The competent legislature.7
b) Post constitutional period :- The question of constitutionality of delegation of
legislative powers came before the Federal Court in Jatindra Nath Gupta v. Province of
Bihar. In this the validity of Section 1(3) of Bihar Maintenance of Public Order Act, 1948
was challenged on the ground it authorised the provincial government to extend the life
of the Act for One year with such modifications is unconstitutional delegation of
legislative power because it is an essential Legislative act. In this manner for the first
time it was laid down that in India that legislative powers cannot be Delegated.
The decision in Jatindra Nath case created doubts about the limits of the delegation of
legislative powers. Therefore, in order to clarify the position of law for the future
guidance of the legislature in matters of Delegation of legislative functions, the president
of India sought the opinion of the Court under Article 143 of The Constitution on the
constitutionality of three acts covering three different periods:
I) Section 7 of the Delhi Laws Act, 1912
II) Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947

5
(1878) 3 AC 889.
6
Empress v. Burrah & Book Singh, ILR 3 Cal 64.
7
Supra note 3 at 111.
 III) Section 2 of the Part ‘C’ State (Laws) Act, 1950
Even though seven judges gave seven separate judgments but it will not be correct to
hold that no principle was laid down by the majority of judges. There were similarities on
three points:
i. That the legislature cannot give that quantity and quality of law which is
required for the functioning of a modern State, hence delegation is necessity;
ii. That in the view of a written Constitution of the power of delegation cannot
be unlimited ; and
iii. That the power to repeal a law or to modify legislative policy cannot be
delegated because these are Essential legislative policy cannot be delegated
because these are essential legislative functions which Cannot be delegated.8
After the in Re Delhi laws Act, 1912, Hamdard Dawakhana v. Union of India was
Probably the first case in which Central act was held ultra vires on the ground of
excessive Delegation. The Drugs and Magic remedies (Objectionable advertisements)
Act, 1954 was Enacted by the parliament to control advertisement of certain drugs.
Section 3 laid down a List of diseases for which advertisement was prohibited and
authorised the central Government to include any other disease in the list. The Supreme
Court held section 3 Invalid as no criteria, principle was laid down and the power
delegated was unguided and Uncontrolled.9

PARLIAMENTARY CONTROL OVER DELEGATED LEGISLATION

Control over delegated legislation can be of various kinds, e.g., judicial, parliamentary and of
other types; the latter may include participation of the affected interests in the rule-making
process, its due publication, etc.

Control of the legislature over delegated legislation:

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 legislature which grants legislative power to the

8
Aparajita Kumari, Control Mechanism over Delegated Legislation, 6 IJCRT 1414.
9
Supra note 3 at 117.
administration, it is primarily its responsibility to ensure the 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
scrutinize 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.

A whole system of legislative supervision over delegated legislation has come into being in
India. Two Significant limbs of this mechanism are:

1. Laying of delegated legislation before the legislature (i.e Direct Control) ; and
2. Scrutiny of delegated legislation by a legislative scrutiny committee (i.e.
Indirect Control)10
1. Direct Control
 Direct General Control :- Direct but general control over delegated legislation is
exercised
a) Through 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 may ask questions on Any
aspect of delegation of legislative powers, and if dissatisfied Can give

10
Supra note 9 at 1415.
 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;
d) Through vote on grant. Whenever the budget demands of a ministry are
presented, any Member may propose a cut and thereby bring the exercise
of rule-making power by that ministry under discussion.
e) Through a private Member’s Bill seeking modifications in the parent Act,
or through a debate at the time of discussion on the address By the
President to the joint session of Parliament, Members may Discuss
delegation. However, these methods are rarely used.11
 Direct Special Control – This control mechanism is exercised through the
techniques of “laying” on the table of the House rules and regulations framed by the
administrative authority. This technique of laying Was made in the Reorganization
Act of 1939 to 1969, which authorize the president to Reorganize the executive
government by administrative rule making. In comparison to England, this technique
is extensively and effectively used because the entire Administrative rule making is
subject to the supervision of parliament under the statutory Instrument act, 1946.
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 operation23. However, if it is essential
that it should Come into operation before the copies are laid, it can be done so but the
copies should be Laid before the Lord Chancellor and the speaker of the House of
Commons explaining why The copies were not laid beforehand. Under Section 6 of
Statutory Instrument Act, 1946, The draft of any statutory instrument should be laid
before the parliament.12

LAYING ON TABLE :-

11
IP Massey, Administrative Law, 175, 7th edition.
12
Supra note 3 at 119.
In almost all countries, the procedure of ‘laying on the table’ of the legislature is
followed. It Serves two purposes: firstly, it helps the legislature in informing as to
what all rules have been Made by the executive authorities in exercise of delegated
legislation. Secondly, it provides the Forum to the legislators to question or challenge
the rules made or proposed to be made.
Through this “safety valve” the legislature exercises supervision, check and control
over Executive rule making power. The object of this Laying techniques bring
legislature into close And constant contact with the administration.

Types of laying :The select committee on delegated legislation summarised the

laying procedure under Following heads25:
1. 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.
2. 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.
3. Laying subject to negative resolution :- In this process the rule
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.
4. 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.
5. 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 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.
6. Laying in draft subject to affirmative resolution :- In this
type of laying the instrument 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:
(a) All acts of parliament should uniformly require that rules to be laid on the table of
the House ‘as soon as possible’
(b) The laying period should uniformly be thirty days from the date of final
publication of Rules and
(c) The rule will be subject to such modifications as the house may like to make.13

LEGAL CONSEQUENCES OF NON-COMPLIANCE WITH THE LAYING

PROVISIONS

In India, the consequences of non compliance with the laying provisions depend on whether The
provisions in the enabling act are mandatory or directory. Upon that basis consequences are
Drawn out. However in England, the provisions of Section 4(2) of the Statutory Instrument Act,
1946 makes the laying provision mandatory for the validation of statutory instrument.

In Narendra Kumar v. Union of India14, 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.

Further in Jan Mohammad v. State of Gujarat(AIR 1966 SC 385), the court deviated from its
previous judgement. 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

13
Supra note 3 at 121.
14
AIR 1960 SC 430.
rules remained Valid because the legislature did not provide that the non laying at its first session
would make 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.

2. 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 scrutinize delegated legislation. In the USA, on the other hand, there is no
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 scrutinize
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:
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.

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.15

EFFECTIVENESS OF PARLIAMENTARY CONTROL OVER DELEGATED

LEGISLATION

15
Supra note 4 at 694.
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:

a) The Parliament has neither time nor expertise to control the administration which has
grown In volume as well as complexity.
b) The legislative leadership lies with the executive and it plays a significant role in
formulating Policies.
c) The very size of the Parliament is too large and unmanageable to be effective.
d) The majority support enjoyed by the executive in the Parliament reduces the
possibility of Effective criticism.16

CONCLUSION

Effective control against the abuse of delegated powers of legislation must come from the
legislature itself, Primarily at the time of delegation, and secondarily in the supervision of the
manner in which they are Exercised. Equally important is the need for public co-operation in the
rule-making process. In a democratic System the administration must respond to the needs and
views of those whom its rules are going to effect.

There is no sure test of the success of a policy than that it is in tune with the genuine needs of the
people, Receiving their sympathy, good-will and satisfaction. Finally, we must devise methods
by which the rapidly Growing subordinate legislation shall become easily accessible, in an
intelligible manner, to those concerned. All those have to be done in India to achieve an efficient
system of delegated legislation.

16
Supra note 4 at 496.