DME LAW SCHOOL

ADMINISTRATIVE LAW

Topic:-Direct Special Control on administrative rule making in

India, Laying procedure and its types

SUBMITTED TO
Mr. Amit Raj Agrawal
(Assistant Professor)
 CONTROL ON ADMINISTRATIVE RULE MAKING: TESTING
LEGITIMACY OF THE DELEGATED LEGISLATION BY LAYING
PROCEDURE AND ITS TYPES
‘PRAGATI SHUKLA’

 Abstract

Constitution of India empowers the legislature to formulate the laws and frame
policies for the affairs of the state, also the concept of separation of powers the
position of the legislature as the policy maker, but this did not last long. Soon
police state started its advent towards becoming a welfare state, and to achieve the
goal of welfare state, administrative law was only way to it. Hence, these
emergences lead to the evolution of the concept of delegated legislation. Prima
facie this concept was a revolutionary one but soon need of a control mechanism
was felt as to determine the limits of such legislations and various controls were
laid down under parliamentary control. This paper talks about the control
mechanism testing the legitimacy of such control.

 Introduction
Administrative law became an independent law branch after the increased socio
economic activity of the state, and its urge for transforming into welfare state.
Today the administration is ubiquitous and impinges freely and deeply on every
aspect of an individual’s life. Administrative law has become very necessary in the
developed society, as the relationship of the administrative authorities and the
people have become very complex. In order to regulate these complex relations,
some law has become the need of the hour; which may bring about regularity,
certainty and may pose a check on the misuse of powers vested in the
administration2.

1
*Pragati Shukla, 2nd year, DME Law School (GGSIPU) NOIDA.
2
Dr. U.P.D. Kesari 22nd Edition 2018.
 Emergence of Administrative Law
Administrative law is the law that governs the administrative actions. The
Administrative law is the law relating to administration’3. It determines the
organization, powers and duties of administrative authorities. Administrative law
deals with the power to supervise the administrative bodies in the discharge of their
functions. It also looks after the proper discharge of the rule making power of the
Administrative bodies and quasi judicial functions of the administrative agencies.
It also governs the executive and monitors that whether the executive is treating
public fairly. The need of administrative law was felt back in late 19th century but
at that time it was not given much of importance as many jurist and legal think
tanks refused such concept to exist. But administrative law grew like a seed, as
soon as it got all the condition favorable to it, it expanded in its best possible form.

 The concept of a welfare state

As the role of the state changed from laissez faire to welfare state the activities of
the government increased and so was the need to regulate these activities of the
government, as result this branch of law developed.

 Inadequacy of the legislature

The legislature has no time to legislate on the day to day changing needs of the
society4. Even, if it frames law for it, by the time the law is framed the needs of the
people are changed as the rule making procedure is very length and time taking,
and such law would be of no use. Hence, administrative law believed in delegating
powers to executive so as to frame laws using its discretion and keeping the needs
of the people in mind.

 Inefficiency of judiciary
The judicial procedure of adjudicating matters is very slow, costly complex and
formal. Furthermore, there are so many cases already lined up that speedy disposal
of suites is not possible. Hence, the need for tribunals arose.

3
SIR IVOR JENNINGS, (‘Law And The Constitution’) 1963
4
C.K. Takwani, Administrative Law 5th Edition
 Scope for the experiment
As administrative law is not a codified law there is a scope of modifying it as per
the requirement of the State machinery. Hence, it is more flexible. The rigid
legislating procedures need not be followed again and again.

 The Growth of Administrative Law

 ENGLAND
In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of
Administrative law. Until the 20th Century, Administrative law was not accepted
as a separate branch of law. It was only later that the existence of Administrative
law came to be recognized.
The Lord Donoughmore Committee, in 1929, recommended for better publication
and control of subordinate legislation. The principle, King can do no wrong, was
abolished and the scope of Administrative law expanded by virtue of the Crown
Proceeding Act in 1947 which allowed initiating civil proceedings against the
Crown as against any private person.
Breen v Amalgamated Engineering Union5 was the first case wherein the existence
of Administrative law in the United Kingdom was declared.

 UNITED STATE OF AMERICA

In united state of America the existence of administrative law was denied until it
grew up to become the fourth branch of law in the state. It was in 1933 that a
special committee was appointed to determine how judicial control over
administrative agencies could be exercised. Thereafter, in 1946 The Administrative
Procedure Act6 was passed which provided for judicial control over administrative
actions.

5
Breen v Amalgamated Engineering Limited [1971] 2 QB 175
6
Administrative Procedure Act 1946
 INDIA

In India the origin of the administrative law can be traced back from the era of
Guptas and Mauryas, they had centralized administrative system7. It was after the
arrival of British in India the administrative law underwent various changes and
various legislations were passed in British India to regulate the administrative law.

 Administrative Law In India

 Delegated legislation
Delegation of powers means the powers passed on by the higher authority to the
lower authority to make laws. Delegated legislation means the power givebn by the
legislature to executive or to any administrative body to make law on a particular
subject, in simple terms it can be defined as: “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 .”
This concept of delegated legislation can be understood in a better way with the
help of an example; in 1930 the parliament of UK framed Road Traffic Act 1930,
so the legislation is original. Section 30 of the same act provides that minister may
make regulation for the use of vehicles and 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 legislations are also known as secondary legislations because those are
legislations made by body other than parliament. Parliament through its authority
gives its law making power to the body subordinate to it. In the primary act or the
parent act only purpose of the law and its framework is laid.

7M.P. Jain, Legal History ( 8th Edition)

 The delegated legislation must be in accordance with the purpose laid down in the
parent Act.

 Abuse of Administrative Discretion In India

The problem of administrative discretion is complex. It is true that in any intensive
form of government, the government cannot function without the exercise of some
discretion by the officials. It is necessary not only for the individualization of the
administrative power but also because it is humanly impossible to lay down a rule
for every conceivable eventually in the complex art of modern government. But it
is equally true that absolute that absolute discretion is a ruthless master. It is
difficult for a country like India to attend the legislative call of the society without
the help of administrative framework. Hence, in mid 20th century the
administrative law became a separate branch of law. Administrative law gave the
element of discretion to the subordinate to whom the law making power is
delegated. But we have seen that in many cases these discretionary powers have
been abused. Some of the basis on which this abuse is carried out are;

 Mala fides
Mala fides or bad faith means dishonest intention or corrupt motive. Even though it
may be difficult to determine whether or not the authority has exceeded its powers
in a particular case because of the broad terms in which the statute in question may
have conferred power on it, the administration action may, nevertheless, be
declared bad if the motivation behind the action is not honest. At times, the courts
use the phrase “mala fides” in the broad sense of any improper exercise or abuse of
power. In Jaichand v.State of West Bengal8, the Supreme Court observed that mala
fide exercise of power does not necessarily imply any moral turpitude as a matter
of law. It only means that the statutory power is exercised for purposes foreign to
those for which it is in law intended.
Pratap Singh v. State of Punjab, the Supreme Court used the phrase “mala fides”
for initiating administrative action against an individual “for satisfying a private or
personal grudge of the authority.9”

8
1967 AIR 483, 1966 SCR 464
9
1964 AIR 72
 Improper purpose
If a statute confers power for one purpose, its use for a different purpose will not
be regarded as a valid exercise of the powers and the same may be quashed. The
cases of exercise of discretionary power from improper purposes have increased
in modern times because conferment of broad discretionary power has become
usual tendency.
Srilal Shav v. State of West Bengal10 a preventive detention order was issued
against a person mainly on the ground that he had stolen railway property. He had
documents in his possession to prove his bona fide and to prove that he had
purchased the goods in the open market. A criminal case filed against him was
dropped and the mentioned preventive detention was passed in its place. The
order was held to be bad by the court.

 Irrelevant considerations
This says that any administrative action taken should be in consonance with the
considerations given in the statute and any action should not be taken on
extraneous considerations or irrelevant considerations.
In Ram Manohar Lohia v. Bihar11, the petitioner was detained under the
Defence of India Rules, 1962 to prevent him from acting in a manner prejudicial
to the maintenance of “law and order”, whereas the rules permitted detention to
prevent subversion of “public order”. The court struck down the order as, in its
opinion, the two concepts were not the same, “law and order” being wider than
“public order”

 Colorable Exercise Of Power

At times the court use a phrase colorable use of power, this has been most popular
way of the abuse of administrative powers. Where the subordinate body has been
given power to achieve a object but the subordinate body seek to achieve a
different object other than given by the parent body. Such exercise of power is
invalid.

10
1975 AIR 393
11
1966 AIR 740
 Unreasonableness
The authority on which the power is delegated needs to perform the duties
reasonably. If found that any administrative action that is unreasonable or does not
falls within the purview of that body such actions shall be invalid.

The administration authority had cancelled certain grants of property made to the
petitioner by the previous owner on the ground that the transfer was made with a
view to defeating the provisions of Bihar Land Reforms Act, 1950, and to obtain
higher compensation12. The court found that there was no evidence to support the
findings of the authority. The court observed : “the word ‘satisfied’ in Section 4(4)
must be construed to mean ‘reasonably satisfied’ and therefore the finding of the
Collector under Section 4(4) cannot be subjective or arbitrary findings but must be
based upon adequate materials.

 Control On Rule Making Power of Administrative Bodies

To avoid the supreme assumption of the powers by the subordinate body to which
the power has been delegated some control mechanism as needed. Throughout the
course of time three effective controls made its way in India Administration system

 PARLIAMENTARY CONTROL
 JUDICIAL CONTROL
 PROCEDURAL CONTROL

12
chandeshwari Prasad V, State Of Bihar
 PARLIAMENTARY CONTROL ON RULE MAKING POWER

Administrative law is often considered as excuse for the legislators, shield for
administrators and provocation for constitutional purists. However the concept of
delegated legislation cannot be looked down as delegated legislation is no less than
a necessity in today’s era. In the modern world where social, economic,
technological, and administrative speed outstrips the placid traditional legislative
processes, delegated legislation is an essential means of survival. Since it is the
legislature only that delegates the power on the administrative bodies, it is upon it
to supervise the use of such power and to enforce proper checks and balances to
restrict the misuse of the power delegated.

 Direct Special Control

Concern for popular control of increasingly extensive administrative activities has
brought forth various proposals by which congressional supervision can be
maintained. Prominent among these remedies is the device of “laying on the table”,
which requires that administrative “legislation” made under delegated authority be
presented to the legislature for approval.

The control mechanism is exercised through technique of laying on the table of

the house of rules and regulations. The most remarkable use of this technique was
made in Reorganization Acts of 1939 to 1969 which authorized the president to
reorganize the executive government by administrative rule making. In England
the technique of laying is extensively used as all the administrative ruling are
subjective to the supervision of the parliament under Statutory Instruments Act
1946. 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.

This technique so far has been successful in checking the abrupt abuse of the
administrative discretion of the executive government and other administrative
bodies upon the general public.
 Laying On The Table

a) Object
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. And second it provides an
opportunity to the legislators to challenge or to question the rules already made or
proposed to be made. Through this ‘safety –valve’ the legislature exercises
supervision check and control over the rule making power of the executive.
“Laying technique” brings the legislature in close contact with executive and this
contact remains constant.13

b) Types
There are several types of laying, primarily there are three types of laying,

1. Simple laying
In this, the rules and regulations made come into effect as soon as they are laid
before the Parliament. It is done to inform the Parliament, the consent of the
Parliament with respect to its approval of the rules and regulations made are not
required.

2. Affirmative laying
The rules made shall have no effect until approved by both the houses of the
parliament.

3. Negative laying
The rules come into force as soon as they are placed before the Parliament but
cease to have effect if disapproved by the Parliament.

13
M.K. Papiah And Sons V. Excise Commissioner (1975) I SCC 492
 Legislation being the primary responsibility of the parliament the laying procedure
serves as a device by which parliament may come to know as to what has been
done under powers delegated by it. Moreover, the mere fact that the delegated
legislation has to be laid down before the parliament where it may be debated or
criticized makes the executive more careful while framing the laws14.
There were various forms of laying, each giving parliament a different degree of
control. The select committee on delegated legislation in its report in 1953 briefed
these forms of laying under following heads,

 Laying without further provision of control

The enabling act under this head simply provides that instrument or the policy that
is made under it shall be laid before the parliament and shall be effective from the
date it is laid before the house. This provision only serves one purpose of
informing the parliament that what rules and regulation have been made and gives
a little room to the parliament for its scrutiny

 Laying with deferred operation

When the requirement of laying is linked with postponement of the operation of
the instrument, parliament gets greater opportunity of control than in preceding
form of laying.

 Laying with immediate effect but subject to annulment

Under this procedure the rule made comes in effect when laid before parliament
but if either of the house or both the houses disapprove it such rule shall cease to
operate. This is by far most common parliamentary control called ‘negative
resolution procedure’.

 Laying in draft but subject to no resolution that no further proceedings be

taken
This is a variant of negative resolution procedure and applies where the enabling
act requires the draft of a statutory instrument to be laid before parliament but does
not prohibit making of it without the approval of parliament

14
winconsin Legislative Council, Research Report On The Administrative Rule Making Powers, 1955 Volume II
p.140
 Laying in draft and requiring affirmative resolution
This method provides a more strict parliamentary control on the delegated
legislation than the negative resolution procedure. Here under this method a rule
does not gets approved until an affirmative resolution approving the same have
been passed by both the houses and therefore it means that the proposed rules are
to be debated if it is to be effective

 Laying with immediate effect but requiring affirmative resolution as a

condition for continuance

This form of laying is convenient where the strict parliamentary suppression as

well as prompt operation delegated legislation are essential but keeps it alive which
would die otherwise without such confirmation. It is usually used in case of
taxation where prior notice to the subject may be prejudicial. Subordinate laws
made under emergency powers are also generally subject to this procedure15.

c) Mandatory or Directory
A provision as to ‘laying’ may be directory or mandatory. It will depend upon the
scheme of the act, language used, consequences enumerated in the relevant law
and other considerations. In Atlas Cycle Industries Ltd. V. State Of Haryana16, the
Supreme Court considered this aspect in detail that the use of the word shall is not
conclusive or decisive of the matter and the court has to ascertain the intent of the
legislature which is the determinating factor.17

d) Suggestions
As there was no uniform procedure of laying, scrutiny committee made the
following suggestions;
1) All acts of the parliament shall require that all the rules made should be laid before
house as soon as possible.

15
Paliamentary Control Of Delegated Legislation “Jain Public Law” 1964
16
(1979) 2 SCC 196
17
(1979) 2 SCC 203
 2) The period should be uniform and shall be 30 days from the date of its final
publication.

3) The rules will be subject to such modification as the houses may like.

e) Laying: effect
Where the parent act requires mere laying of the rules before the parliament it
becomes operative from the very time it is laid before house and no further action
is required. If the parent act provides for annulment of rules by the parliament then
the rules comes into force immediately but cease to operate if disapproved by the
parliament, but if the rules need positive affirmation to become operative than a
explicit approval is needed by the house.

f) Laying and judicial review

The laying procedure is relevant to the applicability and enforceability of rules. It
however, , neither confers validity on such rules nor does it grant the rules status
equal to the act and a court of law is not precluded from deciding vires of the rules.
In Dal-Ichi Karkaria Ltd. v. Union Of India18, the Supreme Court considering
several decisions held that mere laying of the rules before parliament does not
make a difference regarding the jurisdiction of the court to pronounce its validity.

SOME LANDMARK JUDGMENTS

In Jan Mohammad Noor Mohammad Bagban v. State Of Gujrat19 the supreme

court observed that the rules made under the parent act were valid and observed
that though it was not laid before the legislature it was valid from the very date it
was made as the act did not provide that the rules shall be rendered invalid if not
laid before legislature.

18
(2000) 4 SCC 57
19
AIR 1966 SC385
 In M.K. Papiah And Sons v. Excise Commissioner20, the court held that the rules
under the parent act come into force as soon as they are laid down and power of the
parliament to annul or repeal rules subsequently was not sufficient control over
delegated legislation, Mathew J observed, “the dilution of the parliamentary
watch- dogging of delegated legislation may be deplored but, in the compulsions
and complexities of modern life, cannot be helped”.

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

Question as to what are the failures to lay depends upon the terms relating to
particular laying clause. If the provision relating to laying is condition precedent,
the requirement of laying must be held to be mandatory and rules do not come into
force until they are laid21.

Thus, the evils of the necessity called delegated legislation can be kept in check by
the Parliament, judiciary and by keeping to strict procedures. Amongst all of this, it
is the Parliament which must take active interest and control in order to reduce
pressure on the judiciary and keep alive the doctrine of separation of powers
without clogging the wheels of the government.

20
(1975) I SCC 492
21
C.K. Takwani Administrative Law, 5th Edition
 BIBLIOGRAPHY

 C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, 3rd

Ed., 2012

 Treatise on Administrative Law, 1996, Vol. 1

 C.K. Thakker, Administrative Law, Eastern Book Company, 1992

 Monica Chawla, Delegation of Legislative Powers, Deep & Deep Publications,

2007, p. 69. Available on: http://books.google.co.in/books/delegated legislation
legislative control effectiveness&source

 Geoffrey Philip Wilson, Cases and Materials on Constitutional and

Administrative Law, CUP Archive, 1976,
 WWW.SCCONLINE.COM
 WWW.IBLOGPLEADERS.COM

 WWW.MANUPATRA.COM

 Rabindranath Tagore Library, DME Law School