Law and You > Administrative Law > Parliamentary Control Over Delegated Legislation
The Constitution of India empowers Legislature to make laws for the country and it is the power of the executive to administer and execute the law made by the legislature. This is in accordance with the doctrine of the separation of power. However, frequently enacts legislation containing provisions which empower the executive government, or specified bodies or office-holders, or the judiciary, to make regulations or other forms of instruments which, provided that they are properly made, have the effect of law. This form of law is referred to as “delegated legislation”. This arrangement has the appearance of a considerable violation of the doctrine of the separation of powers. This doctrine of the separation of powers has been largely preserved by a system for the parliamentary control of executive law-making.
It is open to parliament to confer upon anyone it likes the powers which it has but of the parliament delegates legislative powers to any other authority i.e. executive, it must ensure that those powers are properly exercised by the administration and there is no misuse of such powers by the executive. 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. 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 Lohia Machines Limited v. Union of India AIR 1985 SC 421 case, the Court observed that the underlying object of parliamentary control is to keep watch over the rulemaking authorities and if there is an excess of power exercise or there is an abuse of power, it provides an opportunity to the parliament to criticize them. This mechanism is described as a “legislative veto’.
In Avinder Singh v. State of Punjab, AIR 1979 SC 321, Krishna Iyer J. rightly stated that parliamentary control over delegated legislation should be a living continuity as a constitutional necessity.
As the control of the legislature over delegated legislation, Jain and Jain(Principles of Administrative law (2007) 175) state: “In a parliamentary democracy, it is the function of the legislature to legislate. If it seeks to delegate its legislative powers 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 against the danger of its objectionable, abusive and unwarranted use by the administration.”
The parliament provides a number of safeguards to secure the proper exercise of the power by the delegate. The executive is responsible to the legislature at two stages of control.
- Pre-enactment control
- Post-enactment control
Pre-enactment control: In England the Rule of Procedure Act, 1988, requires that if a bill to be passed in the House of Commons involves delegation of the legislative powers, it should be accompanied by a memorandum explaining the proposal with special reference to the scope of the delegation, stating whether such delegation is normal or is exceptional in nature. This provision enables the members of the legislature to examine such delegation from all possible angles before the Bill is passed.
Due to quality debates taking place in the parliament, in India there is no such provision.
Parliamentary control is done in three ways:
- Direct general control
- Direct special control
- Indirect control
Direct general Parliamentary control:
The first form of parliamentary control is exercised at the time of passing the enabling act. The proceedings which are initiated in the parliament are in the nature of general and direct control. There is a 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. Any member can ask questions on any aspect of the 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. Similarly, any member may move a resolution on motion, if the matter regarding delegation of power is urgent and immediate, and the reply of the government is unsatisfactory. However in India, due to lack of practice, these methods are rarely used.
Direct special Parliamentary 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 within a specified time. 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 rulemaking. 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. Under Section 6 of the Statutory Instruments Act, 1946, the draft of any statutory instrument should be laid before the parliament.
Laying on the table (Placing Before Parliament):
The object of this Laying techniques bring the legislature into close and constant contact with the administration. It serves two purposes: firstly, it helps the legislature in informing as to what all rules have been made by the executive authorities in the exercise of delegated legislation. Secondly, it provides the forum to the legislators to question or challenge the rules made or proposed to be made. By this provision the legislature exercises supervision, check and control over executive rulemaking power. Thus this provision acts as a Safety Valve.
Types of laying:
- 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. It is a weak form of control because the intention is only to inform the house and not to have any discussion.
- 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 within a prescribed/given/reasonable time. It is a negative resolution procedure.
- Laying subject to negative resolution: In this process, the rule comes 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. They shall not become effective until a stipulated period of time has expired. It is also a negative resolution procedure.
- 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, the rules shall cease to have effect unless approved by an affirmative resolution. It is positive resolution procedure.
- Laying in draft subject to negative resolution: Such a provision provides that when any act contains a 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.
- 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:
- All acts of parliament should uniformly require that rules to be laid on the table of the house ‘as soon as possible’
- The laying period should uniformly be thirty days from the date of final publication of rules and
- The rule will be subject to such modifications as the house may like to make.
Legal consequences of noncompliance with the laying provisions In India, :
the consequences of noncompliance with the laying provisions depend on whether the provisions in the enabling act are mandatory or directory.
In Narendra Kumar v. Union of India, AIR 1960 SC 430, 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.
In Jan Mohammad v. State of Gujarat, AIR 1966 SC 385, the court deviated from its previous judgment. 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 rules invalid. Even if the requirement of laying is the 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 rulemaking has been violated.
In Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149, the Court commented on whether the provision in the statute, that laying of rules made by delegated legislation before the house is mandatory or merely directory. The Court held that the use of the word “shall” is not conclusive in such cases and that the intention of the legislature is more important.
Indirect Parliamentary control (Scrutiny Committee):
Many times the member of the legislature are not experts on the subject about which the rules are made by delegated legislation. In such case, Scrutiny committees are formed to scrutinize the rules framed by the executives. Thus the Parliament exercises indirect control through its committees. In 1950, the law minister Dr. B. R. Ambedkar made a suggestion for the establishment of the committee which is to be based on the select committee on the statutory instrument of England, to examine the delegated legislation and bring to the notice to the house. Such a committee known as the committee on subordinate legislation of Lok Sabha was appointed on December 1, 1953. There is also a similar committee of the Rajya Sabha which was constituted in 1964. The main functions of the committee are to examine: (a) Whether the rules are in accordance with the general object of the act, (b) Whether there are any rules which can be more appropriately dealt with in the act, (c) Whether it is retrospective, etc. It discharges the same functions as that of the Lok Sabha committee.
Recommendations by the committee on subordinate legislation:
The committee on subordinate legislation has made the following recommendations in order to streamline the process of delegated legislation in India which are as follows:
- The power of judicial review should not be taken away or curtailed by rules.
- A financial levy or tax should not be imposed by rules.
- The language in which the rules are written should be simple and clear and all ambiguities are strictly to be avoided.
- Rules should not be given retrospective effect unless such a power is clearly spelt out in the Parent Act.
- The legislative policy must be formulated by the legislature and details may be left to the executive to supply.
- Discriminatory rules should not be framed by the administration.
- Rules should not go beyond the rulemaking power conferred by the Parent Act.
- There should not be an inordinate delay in making of rules by the administration and should be made within six months from the date of commencement of the Parent Act.