Administrative Law Project

On

Parliamentary Control over Delegated Legislation: An Analysis

Submitted to:

Dr. Kaumudhi Challa

Faculty of Administrative Law

Submitted by:

Abhinav Surollia
Roll no. 07

Semester VI, Section C

B.A. LLB (Hons.)

Submitted on:
February 15, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur (C.G.) – 492002

 i

Declaration of Originality
I, Abhinav Surollia, have undergone research of the project work titled “Parliamentary Control
over Delegated Legislation: An Analysis”, as a student of Administrative Law. I hereby declare
that this Research Project has been prepared by the student for academic purpose only, and is the
outcome of the investigation done by me and also prepared by myself under the supervision of
Dr. Kaumudhi Challa, Faculty of Administrative Law, Hidayatullah National Law University,
Raipur. The views expressed in the report are personal to the student and do not reflect the views
of any authority or any other person, and do not bind the statute in any manner.
I also declare that this Research Paper or any part, thereof has not been or is not being submitted
elsewhere for the award of any degree or Diploma. This report is the intellectual property of the
on the part of student research work, and the same or any part thereof may not be used in any
manner whatsoever in writing.

Abhinav Surollia
Roll. No. 07
Semester VI, Section C
 ii

Certificate of Originality
This is to certify that Mr. Abhinav Surollia, Roll Number 07, student of Semester VI, Section C
of B.A.LL.B.(Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has
undergone research of the project work titled “Parliamentary Control over Delegated
Legislation: An Analysis”, in partial fulfillment of the subject of Administrative Law. His
performance in research work is up to the level.

Place: New Raipur ………………………… ……………………………

Date: 15.02.2016 Dr.Kaumudhi Challa.

(Faculty- Administrative Law)

Hidayatullah National Law University, New Raipur, Chhattisgarh

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Acknowledgement
I feel highly elated to work on the project “Parliamentary Control over Delegated
Legislation: An Analysis”. The practical realisation of the project has obligated the assistance of
many persons. Firstly I express my deepest gratitude towards Dr. Kaumudhi Challa, Faculty of
Administrative Law, to provide me with the opportunity to work on this project. Her able
guidance and supervision in terms of her lectures were of extreme help in understanding and
carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.

Abhinav Surollia
Roll. No. 07
Semester VI, Section C
 iv

Table of Cases
Foreign Judgments:

1. Bailey v. Williamson, (1873) 8 QB 118 (LR).

2. Hotch v. United States, 212 F. rd. 280 (1954).
3. Institute of Patent Agents v. Lockwood, (1894) AC 347.
4. R. v. Sheer Metalcraft, (1954) 1 QB 586.

Indian Judgments:

1. Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149.

2. Avinder Singh v. State of Punjab, AIR 1979 SC 321.
3. Dal-Ichi Karkaria Ltd. v. Union of India, AIR 2000 SC 1741.
4. Express Newspaper (P) Ltd. v. Union of India, AIR 1958 SC 578.
5. In Re Kerala Education Bill, AIR 1958 SC 956.
6. Jan Mohammad Noor Mohammad Bagban v. State of Gujarat, AIR 1966 SC 385.
7. Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197.
8. M.K.Papiah and Sons v. Excise Commr., (1975) 1 SCC 492.
9. Narendra Kumar v. Union of India, AIR 1960 SC 430.
 v

List of Abbreviations
1. & And
2. Ed. Edition
3. Ltd. Limited
4. No. Number
5. Sec. Section
6. UK United kingdom
7. USA United States of America
8. V. Versus
 vi

Table of Contents
1. Declaration i
2. Certificate of Originality ii
3. Acknowledgement iii
4. Table of Cases iv
5. List of Abbreviations v
6. Introduction 1
7. Research Methodology 3
7.1. Problem of the Study 3
7.2. Rationale 3
7.3. Hypothesis 3
7.4. Objectives 4
7.5. Review of Literature 4
7.6. Nature of Study 5
7.7. Limitations 5
7.8. Chapterization 5
8. Delegated Legislation: Control in USA and UK 7
9. Delegated Legislation: Control in India 9
10. Modes of Parliamentary Control 11
10.1. At the time of Delegating 11
10.2. Laying 11
10.3. Scrutiny Committees 14
11. Judicial Approach 19
12. Conclusion 21
13. Suggestions 23
14. Bibliography 25
 1

Chapter I: 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 frauds 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 have
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
of 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.

The sphere of State action has expanded enormously in the modern age. This has resulted in a
tremendous growth of complicated legislation and it has become practically impossible for the
legislature to provide laws complete in all necessary details. As a natural corollary, there has
been a phenomenal increase in the quantum of administrative legislation for making laws more
 2

effective and adaptable to the varying needs of society and relieving the legislature of the
crushing burden of work. Administrative legislation, which is made by different non-legislative
bodies under the authority of statutes, is closely related to these statutes, related, says Carr, "as
child to parent, 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."1

There is no doubt that arbitrary exercise or abuse of rulemaking powers by the Executive may
constitute a threat to liberty of citizens, as pointed out by Lord Hewart in his book New
Despotism but it will be futile to oppose delegated legislation because of a possibility of its
abuse.2 The Committee on Ministers' Powers (Donoughmore Committee) after making a
searching inquiry on delegated legislation pronounced the verdict that it was necessary and
inevitable. "The truth is," said the report of the Committee, ''that if Parliament were not
willing to delegate law-making power, Parliament would be unable to pass the kind and
quality of legislation which modern public opinion requires."3 The Committee was of opinion
that the alleged dangers could be obviated under certain safe-guards. Increasing resort to
delegated legislation is essential for the survival and welfare of the democracies, but this power
is to be exercised under the authority and scrutiny of Parliament.

The Executive must, make regulations under quite specific powers given to it for particular
purposes by Acts of Parliament. Parliament will exercise powers of supervision and control of
this departmental legislation. There must be the utmost possible freedom of discussion among
the chosen representatives of the people so that a genuine crystallization of public opinion may
take place, followed by a genuine formulation of the national will.

The focus of our inquiry therefore should shift from desirability of delegation to that of control
and it will be pertinent therefore to examine the problem of constitutional limits within which
Parliament may delegate legislative authorities in U.S.A., Britain, and India and the nature and
extent of legislative control/parliamentary control over delegated legislation in the respective
countries.

1
Cecil T. Carr, Delegated Legislation, 2 (Cambridge University Press) (1921).
2
Ramesh Narain Mathur, Legislative Control of Delegated Legislation A Survey, The Indian Journal of Political
Science, Vol. 21, No. 1, 25 (January—March, 1960).
3
Id at 26.
 3

Research Methodology
Problem of the Study
Though Subordinate Legislation is now universally accepted as ‘inevitable and indispensable’, it
is generally agreed that the tendency to delegate to the Executive the legislative powers is
dangerous. Political scientists and others interested in the subject have felt that the concerned
departments or the authorities, to whom the ancillary legislative powers have been delegated,
regulate matters of substantive nature which may closely affect the rights and interests of the
citizens. In certain circumstances, people may be denied liberties by the administrators who are
armed with legislative powers. Another risk inherent in the system of subordinate legislation is
that officials in their zeal to achieve a particular objective may impose an undesirable burden on
citizens by requiring them to comply with various conditions and formalities which might be
restrictive of individual rights and freedom. Therefore, It is necessary to have a mechanism to
control the acts of administrative authorities which they perform through delegated legislation.

Rationale
As a result of increase in rule making power by administrative authority, two pertinent questions
crop up. First, how much power should be delegated by the Legislature to the subordinate
authorities? And second, what restraints or safeguards should be imposed upon the authorities
exercising delegated legislative powers? Today, the problem is not about the desirability or
otherwise of delegated legislation but it is with regard to the control and safeguards which can be
introduced to ensure effective parliamentary control over subordinate legislation so that the
powers conferred are not abused or misapplied. This project attempts to answer the second
question.

Hypothesis

Parliament has the inherent right to see that the powers delegated by it to make rules, sub-rules,
regulations, bye-laws, etc., have been exercised in harmony with the terms of the statute
delegating such powers and also that they are in accordance with the general principles of
delegation. It has also the right to see that rule-making powers conferred by the Constitution,
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which are essentially of a legislative character, are properly exercised by the Executive.
Parliamentary Control over Subordinate Legislation is exercisable in several ways.

Objectives
The objectives of this project are:

1. To study in brief the control of delegated legislation by Parliament in UK and USA.

2. To study in detail the control of delegated legislation by Parliament in India.
3. To study the modes of Parliamentary control over delegated legislation.
4. To understand the approach of judiciary in particular Indian Judiciary towards
Parliamentary control over delegated legislation

Review of Literature
1. C.K.Takwani, Lectures on Administrative Law, (ed.5, Eastern Book Company,
Lucknow) (2012):
This text book in Administrative Law deals in all aspects relating to Administrative Law.
Chapter 5 of the book comprises of controls over delegated legislation and includes a
section of Parliamentary Control over delegated legislation and various modes of control
exercised by parliament to control delegated legislation.

2. Ramesh Narain Mathur, Legislative Control of Delegated Legislation A Survey, The

Indian Journal of Political Science, Vol. 21, No. 1, (January—March, 1960):
This Research article written by Ramesh Narain Mathur beautifully summarises the
control of parliament over delegated legislation in India along with the scenarios in other
countries such as Australia, USA, UK and Canada.

3. Committee on Subordinate Legislation,

http://164.100.47.192/loksabha/writereaddata/Abstract/subordinate_legislation.pdf
(Accessed on February 6, 2016):
This report presented by Lok Sabha includes the role of Lok Sabha Committee on
Subordinate Legislation in controlling delegated legislation and also provides the
constitution and functions of the Committee.
 5

4. Rajya Sabha Practice & Procedure Series, Committee on Subordinate Legislation,

http://rajyasabha.nic.in/rsnew/practice_procedure/committ_sub_legis.pdf (Accessed on
February 7, 2016):
This report presented by Rajya Sabha includes the role of Rajya Sabha Committee on
Subordinate Legislation in controlling delegated legislation and also provides the
constitution and functions of the Committee.

5. Kumar Bharat, Effectiveness of Parliamentary Control over Delegated Legislation,

http://www.legalservicesindia.com/article/article/effectiveness-of-parliamentary-control-
over-delegated-legislation-1879-1.html. (Accessed on February 11, 2016):
This Internet article written by Kumar drives home the benefit of Parliamentary control
over delegated legislation. It also narrates the judicial approach towards this control and
provides the recommendations made by various Parliamentary Committees over
delegated legislation.

Nature of Study
The nature of the study in this project is doctrinal and is primarily descriptive and analytical.
This project is largely based on primary sources of data such as cases and reports of committees,
however secondary & electronic sources of data have been referred to a great extent. Books, case
laws, journals & other reference as guided by faculty of Administrative Law are primarily used
for the completion of this project.

Limitations of the Study

Due to paucity of time and resources the author has dealt in brief the role of Parliamentary
control over delegated legislation bringing out various modes of this control and its effectiveness
in brief. A detailes account though desirable is not done because of time constraints. Various
cases have been taken into account showing the approach of judiciary towards this control
mechanism but not each and every case is analyzed in their entirety.

Chapterisation
This project has been divided into 5 chapters. Chapter 1 comprises of Introduction and Research
Methodology of the project. Chapter 2 includes the parliamentary control of delegated legislation
 6

in USA and UK to bring home a comparison with India which is covered in Chapter 3 of the
project. Chapter 4 comprises of the Modes of Parliamentary control of delegated legislation with
special reference to Indian Parliament. Chapter 5 tries to show the Judicial approach towards the
parliamentary control over delegated legislation with special reference to Indian Judiciary. At
last Chapter 6 concludes this project along with suggestions and references
 7

Chapter II: Delegated Legislation—

Control in USA and UK
USA
In U.S.A. control of delegated legislation is left to the courts4, and there is hardly any provision
for laying it before Congress for scrutiny except in the case of reorganization orders which have
to be laid before Congress for 60 days during which they can be annulled by Congress. The
Congress seeks to control delegated legislation indirectly through prescription of certain
requirements to which it must conform.

The Federal Register Act, 1935, provides for publication in the Federal Register of all rules,
regulations and orders of general applicability and legal effect, while antecedent publicity is
secured by Administrative Procedure Act, 1946, which requires notice of the proposed rules to
be published in the Federal Register. The Federal Register Act 1935 prescribes three things:

i. Regulation must be duly issued, prescribed or promulgated;

ii. Regulation to be filed with the Division and made available to people;
iii. A certified copy of the regulation to be lodged with the office of the Federal Register.

Under the provisions of the Federal Register Act, it is expressly provided that no document
required to be published under the Act 'shall be valid as against any person who has not had
actual knowledge thereof' until it has actually been filed for publication. In a recent federal case
of Hotch v. United States5 a criminal conviction was reversed because the regulation which a
defendant had violated had never been published in the Federal Register.

UK
In parliamentary countries like Britain, Canada, Australia, Ireland and India where separation of
powers in the strict sense of the term does not prevail there is no constitutional difficulty in the

5
212 F. rd. 280 (1954).
 8

delegation of legislative power by Parliament to the executive. However, in England, certain

standards to which delegation should conform have been formulated and departure from these is
regarded abnormal delegation. According to the Committee of Ministers' Powers there are
several types of delegated legislation which should be regarded as abnormal.

In Britain the power of judicial control over delegated legislation is limited. Parliamentary
statutes sometimes expressly bar judicial review. Sometimes words are used elevating
departmental regulations to the status of Acts of Parliament and hence beyond judicial control.

In Institute of Patent Agents v. Lockwood,6 Trade Marks Act, 1883 conferred on the Board
power to make such rules, as in the opinion of the Board, were necessary to give effect to the
provisions of the Act governing Registration of patent agents. Such rules, when made were to
have effect as if embodied in the Act itself. The court held that such provisions excluded judicial
review.

Again the Courts cannot review orders which are required to be submitted to Parliament for
approval. The only effective safeguard against delegated legislation is through parliamentary
scrutiny. Parliament provides two kinds of safeguards against abuse of delegated legislation. One
is antecedent safeguard and the other is post-natal safeguard. The antecedent safeguards are that
delegation of legislative power should be made to responsible bodies only i.e. to authorities
directly responsible to Parliament.

A number of acts of British Parliament require consultation of such interests. Section 77 of the
National Insurance Act, 1946, which lays down that regulations made under the Act must be
submitted in draft to the Advisory Committee concerned whose report must be laid before
Parliament along with the regulations, when they have been made. Other Acts require direct
consultation with associations of employers and workers.7

Another way to control is through ‘Parliamentary Scrutiny’. Parliamentary scrutiny of delegated

legislation is done through the various forms of 'laying' of rules before the two Houses of
Parliament as prescribed under the Act under which they are made.

6
(1894) AC 347.
7
Ramesh Narain Mathur, Supra note 2 at 30.
 9

Chapter III: Delegated Legislation—

Control in India
General
The need for making detailed regulations to meet the expanding needs of a progressive Welfare
State necessitated a good deal of delegated legislation in India. The nature and scope of
delegation in different statutes are varied and manifold. Very few statutes expressly make any
provision how the rules have to be published in the official Gazette before they come into
operation. Some statutes provide the procedure of laying the rules on the table before Parliament
or legislature and that they are subject to modification by the latter; such as Section 10 of the
National Highways Act, 1956, Section 17(3) of the Standards of Rates and Wages Act, 1956 or
Section 13(2) of the Central Sales Tax Act, 1956. There are certain statutes which delegate to the
administrative authorities powers to impose taxation.8

The Indian Tariff Act empowers the Government to levy export duty on an article not included in
the second schedule. In the Minimum Wages Act, 1948, Section 27, gives power to the
appropriate Government to add to the Schedule and thereby amend the Act.9

Again Section 4 of the Employees Provident Fund Act, 1952, delegates power to the Central
Government to add to the first schedule by notification in the official gazette any other industry
in respect of employees whereof it is of opinion that the Provident Fund Scheme should be
framed in this Act. In delegating this power Parliament has not laid down any standard or guide
on which ‘such opinion' should be based nor does it provide whether before such opinion is
formed it should hear or consult the industry proposed to be added. Another example of
abnormal delegation where the statute gives so wide a discretion that its limits are hardly
discernible are the local bodies Acts in India which contain such clauses as ' to carry out the
purposes of the Act.10

8
Ramesh Narain Mathur, Supra note 2 at 35.
9
Id at 35.
10
Id at 35.
 10

Justice Krishna Iyer in Avinder Singh v. State of Punjab11 rightly stated that parliamentary
control over delegated legislation should be a living continuity as a constitutional necessity. As
to the control of the legislature over delegated legislation, Jain and Jain state:12

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.

Object
The honourable Supreme Court of India in Lohia Machines Ltd. v. Union of India13 held that 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 part. This
mechanism is described as "legislative veto."14

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.

11
AIR 1979 SC 321.
12
MP Jain and SN Jain, Principles of Administrative Law, 175, (ed. 6, LexisNexis) (2015).
13
(1985) 2 SCC 197.
14
Bernard Schwartz, Administrative Law, 197, (Little Brown) (184).
 11

Chapter IV: Modes of Parliamentary

Control
The effective modes of legislative control over delegated legislation are:

1. Direct Control at the time of Delegating

2. Laying on table; and
3. Scrutiny Committees.

At the time of Delegating

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. 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.

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; 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.
 12

In the case of M.K.Papiah and Sons v. Excise Commr.,15 the Apex Court held that 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.

There are several types of "laying." Generally, however a provision of laying is found in the
following words:

Every rule made under this section shall be laid, as soon as may be, after it is
made, before each House of Parliament while it is in session, for a total period of
thirty days which may be comprised in One session or in two successive sessions
and if before the expiry of the session both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be made, the
rule shall thereafter have effect only in such modified form or to be of no effect,
as the case may be; so however that any such modification or annulment shall be
without prejudice to the validity of any thing previously done under that rule.16

A provision as to “laying” may be directory or mandatory. It will depend upon the scheme of the
Act, the language used, consequences enumerated in the relevant law and other considerations.
In Atlas Cycle Industries Ltd. v. State of Haryana17, the Supreme Court considered this aspect in
detail and observed 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 determining factor.

As there was no uniform practice in the laying procedure, the Scrutiny Committee made the
following suggestions:18

1. All Acts of Parliament should uniformly require that the rules shall be laid on the
'Table of the House "as soon as possible".
2. This period should be uniform and should be a total period of 3o days from the date
of their final publication.
3. The rules will be subject to such modification as the Houses may like to make.

15
(1975) 1 SCC 492.
16
C.K.Takwani, Lectures on Administrative Law, 168 (ed.5, Eastern Book Company, Lucknow) (2012).
17
AIR 1979 SC 1149.
18
C.K.Takwani, Supra note 16 at 169.
 13

Effect of Laying
Where the parent Act requires mere laying of rules before Parliament, they come into force as
soon as they are made and no further action is necessary. If the parent Act provides for
annulment of rules by Parliament, the rules come into force immediately but cease to be
operative if disapproved by Parliament. But if the Act provides draft rules to be placed before
Parliament requiring affirmative action by the latter, "positive" action is a condition precedent
and rules come into force only after they are approved by the House.

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 India19, the Supreme Court, considering several decisions
observed that the mere fact of laying the notification before Parliament does not make substantial
difference as regards the jurisdiction of the court to pronounce on its validity.

Effect of failure to lay

In England, the position is not clear. In Bailey v. Williamson20, the condition of laying was held
to be directory. However, the position has changed after passing of the Statutory Instruments
Act, 1946, and in R. v. Sheer Metalcraft21, the court held that delegated legislation became valid
only after it was laid before Parliament.

In India also, the position is not free from doubt. In Express Newspaper (P) Ltd. v. Union of
India22, the Supreme Court observed by way of obiter dicta that the provision regarding laying
was mandatory. But in Re Kerala Education Bill23, the Supreme Court most emphatically and
lucidly observed: After the rules are laid before the Legislative Assembly, they may be altered or
amended and it is then that the rules as amended become effective.

19
AIR 2000 SC 1741.
20
(1873) 8 QB 118 (LR).
21
(1954) 1 QB 586.
22
AIR 1958 SC 578.
23
AIR 1958 SC 956.
 14

In Jan Mohammad Noor Mohammad Bagban v. State of Gujarat,24 the court held that the rules
made under the parent Act were valid, and observed that though the rules were not laid before
the legislature, they became valid from the date on which they were made as the Act did not
provide that they could in case be invalidated by failure to place them before the legislature.

In M.K. Papiah and Sons v. Excise Commr.,25 the court held that the rules under the parent Act
came into force as soon as they were framed. Rejecting the contention that the power of the
legislature to annul or repeal rules subsequently could not be regarded as a sufficient control
over the delegated legislation.

Scrutiny Committees
As discussed above, laying on the table has not always been held to be mandatory. Even if that
requirement is complied with, mere laying of rules before Parliament would not be of much use
unless the rules were properly studied and scrutinized. Therefore, with a view to strengthening
parliamentary control over delegated legislation, Scrutiny Committees are established. In
England, the Select Committee on Statutory Instruments was established by the House of
Commons in 1944.

In India also, there are two Scrutiny Committees:

1) the Lok Sabha Committee on Subordinate Legislation, and

2) the Rajya Sabha Committee on Subordinate Legislation.

The function of these Committees is "to scrutinize and report to the respective Houses whether
the powers to make regulations, rules, sub-rules, bye-laws, etc., conferred by the Constitution or
delegated by Parliament are being properly exercised within such delegation". "They act as
watch-dogs which bark and arouse their master from slumber when they find that an invasion on
the premises has taken place."26

24
AIR 1966 SC 385.
25
AIR 1975 SC 1007.
26
Delegated Legislation in India, ILI, 201 (1964).
 15

Lok Sabha Committee on Subordinate Legislation

To secure adequate parliamentary control of delegated legislation and to prevent tendency to
executive despotism a Committee on subordinate legislation consisting of 15 members was
created by the Speaker to 'scrutinize and report to the House whether the powers delegated by
Parliament have been properly exercised within the frame work of the statute delegating this
power '. Its terms of reference are laid down in Rule 320 of the Rules of Procedure and Conduct
of Business in Lok Sabha (1957)27 and correspond to those within the scope of scrutiny of the
House of Commons scrutinizing Committee, i.e., whether the statutory rule is in accord with the
statute, whether it deals with a matter of substance appropriate for parliamentary enactment,
whether it imposes a tax, whether it gives retrospective effect to any provision which is not
permitted by the act, whether it calls for further elucidation etc. If the Committee is of opinion
that any order should be annulled wholly or in part, or should be amended in any respect, it shall
report that opinion and the grounds thereof to the House.

The Committee is a vigorous and independent body. Since its inception up to April, 1957 it held
16 meetings and scrutinized 700 statutory orders. Between April, 1957 and 1959 (Budget
section) it held 17 sittings and examined 1884 statutory instruments. In its reports it made a
number of useful recommendations. It recommended that all the rules should be laid down on the
table of the House for 30 days before their final publication so that they may be subject to
modification by the House.28 It pointed out that specific section of the parent Act should be
invariably cited in the preamble of all rules, regulations for the purpose of enabling all concerned
to know under what precise authority the rules have been framed. It also stressed the need of
publicity of all rules and orders in one section of the Gazette and to be centrally numbered. An
index of the rules should be published every month and a consolidated index be issued annually.
It pointed out that the Rules should not be framed so as to contravene the parent Act.

It criticized that some statutes made delegation extending to matters of principle and taxation. It
explained that merely laying rules on the table of the House was ineffective and that they should
be followed by an affirmative resolution of the House. It pointed out the desirability of providing

27
Committee on Subordinate Legislation,
http://164.100.47.192/loksabha/writereaddata/Abstract/subordinate_legislation.pdf (Accessed on February 6,
2016).
28
Id.
 16

in the parent Act that all rules be laid on the table of the House within a couple of days after their
publication and thereby avoid undue delay in laying. The Committee also pointed out the
undesirability of sub-delegated powers in a wide language and recommended that some
safeguards be imposed before a delegate is given wide powers to sub-delegate its authority to
another functionary. It also observed that when an Act requires certain matters to be regulated by
rules to be made there under, such rules should be framed immediately after the commencement
of the Act.

Inspite of the vigorous and independent manner the Committee has conducted its work, it is
apprehended that with the mounting output of delegated legislation the Committee will be
swamped by it and will be less thorough. The Lok Sabha is unduly pressed by volume of work
and time. It is suggested that a scrutiny Committee of the Rajya Sabha be also set up which may
relieve pressure of work and may scrutinize instruments on broad terms of reference on the same
lines as the Australian Senate Committee on Delegated Legislation. The members of the Rajya
Sabha are not distracted by the urgencies of political and governmental problems as the Lok
Sabha and are expected to apply an impartial and non-partisan approach in scrutinizing
regulations. Further, regulation should be drafted in a simple language and the terminology
should not be vague and indefinite. Antecedent publicity, provision for consultation and hearing
of affected interests and rights of representation should be accorded before rules are finalised.
Rules and regulations should be published not only in the Gazette but should also be notified in
papers.29

Finally, the scrutiny Committee should have the assistance of an expert advisory body,
independent of administrative authorities and ministers but subservient to the legislature. Having
administrative and legal experience they will be very helpful to the Committee in the work of the
review of delegated legislation. Legislators may change from time to time but this legislative
Staff agency will continue to function on a permanent basis and provide continuity in review.

Rajya Sabha Committee on Subordinate Legislation

Rajya Sabha Committee on Subordinate Legislation was formed with an aim to scrutinise and
ensure whether powers to make rules, regulations, bye-laws, schemes or other statutory

29
Id.
 17

instruments conferred by the Constitution or delegated by Parliament have been properly

exercised within such conferment or delegation, a Committee called the Committee on
Subordinate Legislation has been constituted under Rules 204-206 of the Rules of Procedure and
Conduct of Business in Rajya Sabha.30

Rajya Sabha Committee on Subordinate Legislation was first constituted in 1964. The
Committee consists of fifteen members including the Chairman who is nominated by the
Chairman, Rajya Sabha. The Committee holds office until a new Committee is nominated.
Normally, the Committee is re-constituted every year. The Committee has till the conclusion of
the 200th Session of Rajya Sabha presented 151 Reports.31 Rule 209 of the Rules of Procedure
and Conduct of Business in Rajya Sabha lays down the functions of the Committee. Considering
the scope of its functioning under the provisions contained in Rule 209, the Committee on
Subordinate Legislation of Rajya Sabha found that only such orders as were required to be laid
before Parliament and were so laid before the Council could be examined by it and fell within
the purview of scrutiny of the Committee. The Committee, however, felt that it should have the
power to scrutinise not only the rules, regulations, bye-laws and statutory instruments, generally
termed as ‘orders’ as are laid on the Table but all instruments of subordinate legislation in
whatever form, whether framed in exercise of the powers conferred by the Constitution or
delegated by Parliament and irrespective of whether they are laid before the Council or not.

The principal function of the Committee is to scrutinise the various rules, regulations, bye-laws,
schemes and other statutory instruments (briefly referred to as ‘orders’) framed in exercise of the
powers conferred by the Constitution or delegated under the various Acts of Parliament to see
whether the ‘order’ is in accord with the provisions of the Constitution or the Act, pursuant to
which the same is made and to report to Rajya Sabha in regard thereto.32

The Committee has to satisfy itself whether the ‘order’ is intra vires of the Constitution or the
respective Act of Parliament. In case any order is found not to be in accord with the provisions of
the Constitution or of the Act where under it is made, the Committee recommends that the
respective rules and regulations be suitably amended. The Committee also sees to it that the

30
Rajya Sabha Practice & Procedure Series, Committee on Subordinate Legislation, 4,
http://rajyasabha.nic.in/rsnew/practice_procedure/committ_sub_legis.pdf (Accessed on February 7, 2016).
31
Id at 5.
32
Id at 7.
 18

orders issued in exercise of the powers of delegated legislation do not take the place of an Act of
Parliament nor do they seek to amend or add to the basic law.

Besides the functions as enumerated in Rule 209, the Committee goes into matters, where the
rules, regulations, bye-laws and other statutory instruments as contemplated in the Constitution
or envisaged in an Act of Parliament have not been framed or the framing thereof has been
inordinately delayed. The Committee also monitors the timely laying of notifications containing
the subordinate legislation.
 19

Chapter V: Judicial Approach

Delegated legislation is permitted by the Indian Constitution. It exists in form of bye rules,
regulations, orders, bye laws etc. There are many factors responsible for its increase: Parliament
and State Legislature are too busy to deal with the increasing mass of legislations, which are
necessary to regulate daily affairs. Modern legislation requires technicality and expertise
knowledge of problems of various fields, our legislators, who are politicians are not expected to
have such knowledge. Subordinate legislations are more flexible, quickly and easily amendable
and revocable than ordinary legislation, in case of failure or defect in its application.

Justice P B Mukerjee has stated:

“Delegated legislation is an expression which covers a multitude of confusion. It

is an excuse for the legislators, a shield for the administrators and a provocation to
the constitutional jurists. It is praised as a necessity and felt as inevitable in our
world where social economic technological psychological and administrative
speed outstrips the spacious and placid traditional legislative ideals and processes.
It is criticized as an abdication of power by legislators and an escape from the
duty imposed on them by voters of democracy. In England the king lost the
legislative power at Runnymede and parliament lost legislative at stampede that
followed since to provide the government for the country through administration
and bureaucracy”33

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. The approach of judiciary towards parliamentary
control over delegated legislation is not crystal clear and has varied from time to time in different
cases.

33
www.legalservicesindia.com/article Doctrine Of Permissible Limits under Delegated Legislation. ... under the
IndianConstitution: of India.
 20

In Narendra Kumar v. Union of India34, 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 Express Newspaper (P) Ltd. v. Union of India35, the Supreme Court observed by way of obiter
dicta that the provision regarding laying was mandatory. But in Re Kerala Education Bill36, the
Supreme Court most emphatically and lucidly observed: After the rules are laid before the
Legislative Assembly, they may be altered or amended and it is then that the rules as amended
become effective.

In Jan Mohammad Noor Mohammad Bagban v. State of Gujarat,37 the court held that the rules
made under the parent Act were valid, and observed that though the rules were not laid before
the legislature, they became valid from the date on which they were made as the Act did not
provide that they could in case be invalidated by failure to place them before the legislature.

In M.K. Papiah and Sons v. Excise Commr.,38 the court held that the rules under the parent Act
came into force as soon as they were framed. Rejecting the contention that the power of the
legislature to annul or repeal rules subsequently could not be regarded as a sufficient control
over the delegated legislation.

Thus the Courts in India earlier had the view that it was not mandatory to lay down the delegated
legislation before the Parliament or State Legislatures but now the approach has inclined towards
mandatory laying down of Delegated Legislations before the Legislatures. If the Act expressly
provides for laying down it is mandatory.

34
AIR 1960 SC 430.
35
AIR 1958 SC 578.
36
AIR 1958 SC 956.
37
AIR 1966 SC 385.
38
AIR 1975 SC 1007.
 21

Conclusion
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.

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.

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 majority support enjoyed by the executive in the Parliament reduces the
possibility of effective criticism.
(iv) The growth of delegated legislation reduced the role of Parliament in making detailed
laws and increased the powers of bureaucracy.
(v) Parliament’s control is sporadic, general and mostly political in nature.
 22

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.
 23

Suggestions
The suggestion which can be adopted to provide a better Parliamentary control over delegation,
few of which, the Committee on Subordinate Legislation has also made recommendations on are
following:

(i) Power of judicial review should not be taken away or curtailed by rules.
(ii) Like rules, regulations should also be laid before Parliament and there should be a
provision to this effect in the relevant statutes. When the principal rules are required
to be laid before Parliament, all statutory orders made under the rules should also be
laid on the Table.
(iii) Language of the rules should be simple and clear and not complicated or ambiguous.
As far as possible, the use of complicated language in the rules should be avoided.
Rules should be specific and definite. The use of vague expressions which may be
interpreted differently by different persons, is to be avoided.
(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) Discriminatory rules should not be framed by the administration.
(vi) Rules should not travel beyond the rule-making power conferred by the parent Act.
Only matters of procedure and details should be spelt out through Subordinate
Legislation. Substantial matters should, more appropriately, be dealt within the Act
itself.
(vii) There should not be inordinate delay in making of rules by the administration.
(viii) The final authority of interpretation of rules should not be with the administration.
(ix) Sufficient publicity must be given to the statutory rules and orders.
(x) Committees should employ experts.
(xi) Retrospective effect to Subordinate Legislation cannot be given without an express
authorisation given in the parent Act. Even the cases where the Government has the
power to give effect to Subordinate Legislation such powers should be exercised only
in unavoidable circumstances, and the Rules/ Regulations framed there under should
 24

in each case be accompanied by an explanatory note or memorandum affirming that

no one was likely to be adversely affected as a result of retrospective effect given
thereto.

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.”39

Therefore, legislature exercises its control over the delegated legislation or the rule-making
power by these two methods: namely, ‘laying’ procedure and via Scrutiny committees. However,
to what extent these two methods are effective in posing a check and control over delegated
legislation, is the question which needs to be taken into consideration.

39
Parliamentary Control of Delegated Legislation, Public Law, 200 (1956).
 25

Bibliography
Books:

1. C.K.Takwani, Lectures on Administrative Law, (ed.5, Eastern Book Company,

Lucknow) (2012).
2. I.P. Massey, Administrative Law, (ed.7, Eastern Book Company) (2008).
3. MP Jain and SN Jain, Principles of Administrative Law, (ed. 6, LexisNexis) (2015).
4. Cecil T. Carr, Delegated Legislation, (Cambridge University Press) (1921).
5. Bernard Schwartz, Administrative Law, (Little Brown & Company) (1994).
6. Delegated Legislation in India, ILI, (1964).
7. Parliamentary Control of Delegated Legislation, Public Law, (1956).

Internet Documents:

8. Ramesh Narain Mathur, Legislative Control of Delegated Legislation A Survey, The

Indian Journal of Political Science, Vol. 21, No. 1, (January—March, 1960).

9. Committee on Subordinate Legislation,

http://164.100.47.192/loksabha/writereaddata/Abstract/subordinate_legislation.pdf
(Accessed on February 6, 2016).
10. Rajya Sabha Practice & Procedure Series, Committee on Subordinate Legislation,
http://rajyasabha.nic.in/rsnew/practice_procedure/committ_sub_legis.pdf (Accessed on
February 7, 2016).
11. Kumar Bharat, Effectiveness of Parliamentary Control over Delegated Legislation,
http://www.legalservicesindia.com/article/article/effectiveness-of-parliamentary-control-
over-delegated-legislation-1879-1.html. (Accessed on February 11, 2016).