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PARLIAMENTARY CONTROL

OF DELEGATED
LEGISLATION - A CRITICAL
ANALYSIS
TABLE OF CONTENTS

INTRODUCTION......................................................................................................................1

DELEGATED LEGISLATION..................................................................................................1

Why Delegated Legislation Becomes Inevitable?.................................................................1

PARLIAMENTARY CONTROL...............................................................................................1

Object of Parliamentary Control............................................................................................1

FORMS OF PARLIAMENTARY CONTROL OVER DELEGATED LEGISLATION...........1

1. Direct General Control.......................................................................................................1

2. Direct Special Control........................................................................................................1

3. Indirect Control..................................................................................................................1

EFFECTIVENESS OF PARLIAMENTARY CONTROL OVER DELEGATED


LEGISLATION..........................................................................................................................1

In India...................................................................................................................................1

In England..............................................................................................................................1

In U.S.A.................................................................................................................................1

CONCLUSION..........................................................................................................................1

REFERENCES...........................................................................................................................1

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INTRODUCTION
Delegated legislation has been defined by the Committee on Minister's powers "as the
exercise of minor legislative power by subordinate authorities and bodies in pursuance of
authority given by parliament itself. Such delegation of legislative power has become
inevitable in modern industrialised society and due to changed concept of a welfare State. A
century ago, in the laissez-faire state, the function of the government was chiefly protective
and regulatory. It was to prevent violence and fraud, to maintain security and integrity of the
State from outside aggression and to enforce contracts. It also performed some functions
relating to the care of the poor, education, communications, coinage and a few other social
Projects. It was not expected to do anything beyond these. In other words, the State acted for
the most part as soldier, policeman, and judge. On such basis, it was the function of the
legislature to lay down general guiding principles, and of the executive to see that they were
put into effect and to work out the specific and local details. The position is totally different
in the Public Service State of the twentieth century. The welfare activities of the state have
assumed enormous proportions and the machinery of the state has developed into a gigantic
organization carrying practically every aspect of man's life. A State of this type cannot be
governed by the same methods as the liberal state. A tremendous expansion governmental
activity is inevitable, it is not possible for the legislator from his lofty position to direct this
giant machine effectively. To a great extent, the constructive initiative has to pass from the
parliament to the government offices and a series of semiautonomous boards and
commissions. In terms of law this trend manifests itself in numerous acts of legislative
authorization in all democracies. This power of rule-making in conferred on Ministers, Public
servants and important governmental agencies under statutory authority. This rule-making
power is also known as administrative legislation or subordinate legislation, because this
legislation is strictly subordinate to the terms of the statute under which it is made.
It has been rightly said that one has to find out a middle course between two conflicting
principles; one permitting very wide powers of delegation for practical reasons while the
other that no new legislative bodies should be set up by transferring essential legislative
functions to administrative authorities. Delegated legislation has become inevitable but the
question of control has become crucial.

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DELEGATED LEGISLATION
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 it only supplements the law under the authority of
legislature. This type of activity namely, the power to supplement legislation been described
as delegated legislation or subordinate legislation.

WHY DELEGATED LEGISLATION BECOMES INEVITABLE?


The reasons as to why the Parliament alone cannot perform the jobs of legislation in this
changed context are not far to seek. Apart from other considerations the inability of the
Parliament to supply the necessary quantity and quality legislation to the society may be
attributed to the following reasons:
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.
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.
Certain matters covered by delegated legislation are of a technical nature which
require 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. Parliaments cannot obviously
provide for such matters as the members are at best politicians and not experts in
various spheres of life.
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

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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.
The practice of delegated legislation introduces flexibility in the law. The rules and
regulations, if found to be defective, can be modified quickly. Experiments can be
made and experience can be profitability utilized. However, the attitude of the jurists
towards delegated legislation has not been unanimous. The practice of delegated
legislation was considered a factor, which promoted centralization. Delegated
Legislation was considered a danger to the liberties of the people and a devise to place
despotic powers in few hands. It was said that delegated legislation preserved the
outward show of representative institutions while placing arbitrary and irresponsible
power in new hands. But the tide of delegated legislation was high and these protests
remained futile.
A very strong case was made out against the practice of Delegated Legislation by Lord
Hewart who considered increased governmental interference in individual activity and
considered this practice as usurpation of legislative power of the executive. He showed the
dangers inherent in the practice and argued that wide powers of legislation entrusted to the
executive lead to tyranny and absolute despotism. The criticism was so strong and the picture
painted was so shocking that a high-power committee to inquire into matter was appointed by
the Lord Chancellor. This committee thoroughly inquired into the problem and to the
conclusion that delegated legislation was valuable and indeed inevitable. The committee
observed that with reasonable vigilance and proper precautions there was nothing to be feared
from this practice.

PARLIAMENTARY CONTROL
It is of course open to parliament to confer legislative power upon anyone it likes, including
the captain of an English cricket team, or to the author of administrative law. But if
Parliament delegates legislative powers to any other authority e.g. to the executive it must
also ensure that those powers are properly exercised by the administration and there is no
misuse of authority by the executive.
Krishna Iyer J1 rightly stated that parliamentary control over delegated legislation should be a
living continuity as a constitutional necessity.

1 Avinder Singh v. State of Punjab, (1979)1 SCG 137: AIR 1979 SC 321

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As to the control of the legislature over delegated legislation, Jain and Jain2 state:
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 against the danger of its objectionable, abusive and unwarranted use by
the administration.
The Parliament or the Legislature provide a number of safeguards to secure the proper
exercise of the power by the delegate. The control is done in two ways:
Control at the time of passing of the parent act.
Control when legislature scrutinizes the delegated legislation.

OBJECT OF PARLIAMENTARY CONTROL


The underlying object of parliamentary control is to keep watch over the rule-making authorities
and also to provide an opportunity to criticise them if there is abuse of power on their part3. This
mechanism is described as legislative veto.
Since the risk of abuse of power by the executive is inherent in the process of delegated legislation,
it is necessary for the legislature to keep close watch on the delegate. This is much more
important in view of the fact that judicial control over delegated legislation is not sufficient
enough to keep administrative agencies within the bounds of delegation and there is need and
necessity and political control in terms of policy, which parliament may be able to exercise
efficiently.

FORMS OF PARLIAMENTARY CONTROL OVER


DELEGATED LEGISLATION

2 Principles of Administrative Law (2007) 175.

3 Lohia Machines Ltd. V. Union of India, (1985) 1 SCC 197, para.26: AIR 1985 SC 421.

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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:

1. DIRECT GENERAL CONTROL


The first form of parliamentary control is exercised at the time of passing the enabling act.
This is the proceedings in the Parliament which are in the nature of general and direct control.
In India, various methods and mechanisms are used such as debates on the delegating bill
which include aspects such as the necessity, extent, type of delegation and the authority to
whom power is delegated. Further, any member may 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. Also, 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. 4
Budget cuts during a vote of grant and discussions on delegation through a private members
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 are also useful.
However, in India as in the U.K. these methods are rarely used. This is purely because of lack
of convention or practice. Scholars however believe that this method should be used
extensively and effectively so as to nip the vices of delegation in the bud.5

2. 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

4 https://www.lawteacher.net/free-law-essays/constitutional-law/parliamentary-control-of-
administrative-rule-making-constitutional-law-essay.php#ftn6 (Last accessed on 13 Feb,
2017).

5 https://www.linkedin.com/pulse/effectiveness-parliamentary-control-over-delegated-bharat-
kumar-singh (Last accessed on 13 Feb, 2017).

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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.

Object of Laying:
In almost all the Commonwealth countries, the procedure of Laying on the Table of the
legislature is followed. It serves two purposes; first, it informs the legislature as to what rules
have been made by the executive authorities in exercise of delegated legislative power; and
second it provides an opportunity to the legislators to question or challenge the rules already
made or proposed to be made. Through this safety-valve the legislature exercises
supervision, check and control over executive rule-making power. Laying technique brings
legislature into close and constant contact with the administration.

Types of Laying
The Select Committee on delegated Legislation summarised the laying procedure under
following heads6:
1. Laying without further provision for control

6 Delegated Legislation in India, ILI, 1964, p. 166-169.

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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 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.

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 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.

6. 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:
All Acts of Parliament should uniformly require that rules 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 make7.

Legal Consequences of Non-Compliance with the Laying Provisions

7 C.K. Thakker, Administrative Law, Eastern Book Company, 1992, p. 152.

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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 8. 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 India9, 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 Gujarat10, 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.

3. INDIRECT CONTROL
This form of control is exercised by the Parliament through its Committees. With a view to
strengthen Parliamentary control over delegated legislation, Scrutiny Committees were
established11. 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

8 R v. Sheer Metalcraft, (1954) 1 All ER 542.

9 AIR (1960) SC 430.

10 AIR (1966) SC 385.

11 Treatise on administrative law, 1996, Vol. I, P. 136.

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operation in each house, and some other joint bodies like the committee on atomic energy 12.
In England, the Select Committee on Statutory Instruments was established by the House of
Commons in 194413. 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, 195314.
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 reports15.
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 India16.

12 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> (Last accessed on 13 Feb, 2017)

13 Id.

14 Supra Note. 11

15 Id.

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Power of judicial review should not be taken away or curtailed by rules.
A financial levy or tax should not be imposed by rules.
Language of the rules should be simple and clear and not complicated or ambiguous.
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.
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.
Discriminatory rules should not be framed by the administration.
Rules should not travel beyond the rule-making power conferred by the parent Act.
There should not be inordinate delay in making of rules by the administration.
The final authority of interpretation of rules should not be with the administration.
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 body17.

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 legisplation in India18:
The Parliament has neither time nor expertise to control the administration which
has grown in volume as well as complexity.

16 Id.

17 Parliamentary Control of Delegated Legislation, Public Law, 1956, p. 200.

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The legislative leadership lies with the executive and it plays a significant role in
formulating policies.
The very size of the Parliament is too large and unmanageable to be effective.
The majority support enjoyed by the executive in the Parliament reduces the
possibility of effective criticism.
The growth of delegated legislation reduced the role of Parliament in making
detailed laws and increased the powers of bureaucracy.
Parliaments control is sporadic, general and mostly political in nature.
Lack of strong and steady opposition in the Parliament have also contributed to
the ineffectiveness of legislative control over administration in India.
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 House19.

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:20

18 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&s
ource=gbs_navlinks_s> (Last accessed on 14 Feb, 2017)

19 Id.

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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.
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.
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.
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.
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
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.

20 Geoffrey Philip Wilson, Cases and Materials on Constitutional and Administrative Law,
CUP Archive, 1976, p. 362.

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The Parliament while delegating the legislative powers often requires that the subordinate
legislation be laid before the Parliament, When the delegated legislation is brought before the
Parliament, it is discussed there and if it is found that proper use has not been made of
delegated authority, a resolution may be moved for repealing or amending the statutory
instrument concerned. The members of the Parliament may criticize the delegated legislation
when the Parliament grants money to the executive.

What are the consequences of failure to lay? It is submitted that the correct answer to this
question depends on the terms relating to a particular laying clause. If the provision relating
to laying is a condition precedent, the requirement of laying must be held to be mandatory
and the rules do not come into force until they are laid. In case of negative clause, however,
the rules come into operation immediately and the provision of laying is generally construed
as directory. Parliamentary control over delegated legislation should be a living continuity as
a constitutional necessity, but excessive parliamentary control frustrates the basic object of
delegating law making power to the administration to make for economic use of
parliamentary time. Strategies of parliamentary control over administrative rule making may
be discussed in the backdrop of the above observation.

REFERENCES

BOOKS:
Dr. J.J.R. Upadhyaya, Administrative law, 7th Ed., (Central Law Agency) (2010).
M.P. Jain & S.N. Jain, Principles of Administrative law, 6th Ed., (2011)
S.P. Sathe, Administrative Law, 7th ed., (LexisNexis Butterworth Wadhwa Nagpur),
(2012).
I.P. Massey, Administrative Law, 7th Ed., (Eastern Book Company) (2008).

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