This article has been written by Tarang.

Abstract

The Indian Constitution compels the legislative body to make laws for the nation, and it is the chief’s responsibility to administer and implement the laws made by the legislative body. This is in alignment with the separation of powers principles. Notwithstanding executive government is frequently instituted with enactments that draw on the executive government or determined bodies to make directives or other types of instruments that, if properly made, have an effect of the statute. This kind of regulation is referred to as “delegated legislation.” This provision seems to be prima facie a significant violation on the concept of separation of powers. This doctrine has been ensured in the parliamentary setup by creating a structure or mechanism which facilitates legislative or parliamentary oversight over executive law-making. 

Parliament has the power to give anyone it loves the power it possesses for law making such as the executive authority, yet it must cautiously ensure that those powers which are delegated are properly exercised by the administration and that those powers are not misused by the government. Each delegate is reliant on the head’s role and authority, and the executive may actively change, alter, or drop most things pursuant to the delegated power. Parliament has authority since the engaging or parent Act, which was enacted by the legislature, establishes it itself the model, parameters & limits under which the delegated law is created. This paper aims to analyze delegated legislation and see how effective parliamentary control is over the delegated legislation. 

Introduction

Delegation of powers refers to the transfer of legislative law- making function from a higher authority to a lower authority. The powers granted by the legislature to the executive or administration to enact certain laws are known as delegated legislation. In other simple words the term “delegated expression” can be defined as when the legislature delegates the function of enacting legislation to organs other than the legislature, the legislation enacted by those organs is known as delegated legislation. Delegated Law can be used in two senses:

(i) Exercise of delegated power by the subordinate agency which was given by the legislature.

(ii) Subsidiary rules made by the administrative authority in furtherance of the power bestowed by the legislature.

To further substantiate with the aid of an example the UK Parliament enacted the Road Traffic Act, (which is Original Legislation and not Delegated since it is made by the Parliament itself) and further in the Act, section 30 states that Ministry of Transport may further if need be enact suitable rules and regulations with regards to the use of motors vehicles, their manufacturing, etc. Accordingly, the Ministry made the Motor Vehicles (Construction & Use) Regulation (now, this is example of delegated legislation as someone other than the Parliament made the law). 

1. Committee on Ministers’ Powers (1932): “We do not agree with those critics who think that the practice of delegated legislation is wholly bad. We see in it definite advantages, provided that the statutory powers are exercised and the statutory functions performed in the right way. However, the risk of abuse are incidental to it, and we believe that safeguards are required, if the country is to continue to enjoy the advantages of the practice without suffering from its inherent dangers.”
2. 8th Lok Sabha Committee on Subordinate Legislation (1985): “One of our immediate tasks will be to persuade the Government to bring fresh legislation covering all the remaining Acts providing for delegation of legislative powers wherein the requisite laying provisions are still required to be incorporated.”
3. 12th Lok Sabha Committee on Subordinate Legislation (1988): “The committee notes with concern that the matter relating to framing of rules under the Act are being dealt with by the ministries in a very casual lackadaisical manner and no serious attention is paid for expeditious rule making.”
4. M. P. Jain (2017): “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.”

Parliamentary control of delegated legislation

The growth of legislative powers of the executive is one of the hallmarks of the 21st century. Legislative control over delegated legislation is exercised at two levels. The first control is exercised at the time of passing the enabling Act while the second control is exercised when the legislature scrutinizes the delegated legislation.

I. Pre-enactment Control

With a view to enabling the members to exercise the initial control, the Rule of Procedure 1988 of the House of People requires that a Bill involving proposals for delegation of legislative powers shall be accompanied by a memorandum explaining such proposals, drawing attention to their scope, and also stating whether they are of exceptional or normal character. Though this is a statutory rule in itself, in practice it does not amount to much. 

II. Post-enactment Control

It is the control at the second level, that is the supervision over delegated legislation rather than over delegating legislation that is more important. This is effectuated by two methods. One is that of laying the subordinate legislation before the Parliament so as to enable the members to scrutinize it. The second is that of appointing a Committee to scrutinize the delegated legislation on behalf of the parliament.

Types of method to exercise control

Since the executive is accountable to the Parliament, legislative oversight of administrative rule-making is evident as a standard constitutional role in India. There are three different types of control that are generally used:

Direct general control

In India, the Direct General Control is exercised in the following manner: (i) By discussion on the act comprising the delegation. Members are free to address any part of delegation, including the necessity, duration, form, and authority to whom power is delegated. (ii) By way of inquiries and notice. Any member of the Lower House can raise questions regarding any part of legislative delegation and, if they are not pleased, can order a discussion under Rule 59 of the Procedure and Conduct of Business in the Lok Sabha Rules. (iii) Moving resolutions and reminders are displayed in the house. If a matter involving delegation of authority is urgent and immediate, and the government’s response is unsatisfactory, every member has the right to move resolution on motion.

Direct special control

This type of control is exercised by the process of “laying” laws and regulations framed by the administrative on the table of the House. The Reorganization Acts of 1939 to 1969, which allowed the President to reorganize the executive government by regulatory rule-making, were notable examples of this strategy. The laying process can be summarized on Subordinate Laws by the Select Committee under the following headings:

Laying without making any special arrangements for regulation.

The rules and regulations are in place as soon as they are laid in this method of laying. Its primary aim is to remind the House of the rules and regulations in force.

Laying and its types:

1. Laying with immediate effect but with the risk of it being revoked or annulled.

As soon as the rules and regulations are laid before Parliament, they become effective. They, on the other hand, come to a halt if Parliament disapproves of them.

2. Laying being subjected to Negative resolution if and when passed.

The laws take force as soon as they are put before Parliament, but they will be nullified if the House passes a motion annulling the same.

3. Laying being contingent upon affirmative vote.

This strategy takes two forms: firstly, the rules have no influence or power until each House of Parliament approves them, and secondly, the rules cease to have effect until they are approved by an affirmative vote by the House.

4. Laying in draft subject and contingent to negative resolution.

When any Act provides a provision for this form of laying, the draft rules must be put on the table of the House first and must enter into effect forty days after the date of such laying, unless disapproved before that time.

5. Laying in draft subject and contingent to affirmative resolution.

In this form of laying the draft rules have no effect until they are approved by the House. There is no constitutional requirement in India for “Laying of” delegated legislation. The Scrutiny Committee made the following recommendations in the absence of any general law in India for regulating the laying procedure: 

(i) All Acts made to require rules to be laid on the table of the House as soon as possible. 

(ii) The laying duration shall be maximum thirty days from the date of such publication of the rules.

(iii) The rules so made would be subjected to any change and modifications as the House may make at any point of time.

Legal ramification of non-compliance of laying procedure

In India, the ramifications of non-compliance are determined by looking into whether the provisions of the enabling Act are mandatory or directory in nature.

In the landmark case of Narendra Kumar v Union of India, the Supreme Court ruled that Section 3(5) of the Essential Commodities Act which required any rules so enacted in furtherance of the same to be laid before both the Houses of Parliament, is mandatory in nature, and that Clause 4 of the Non-Ferrous Control Order will have no effect unless it is laid before the Parliament.

In another landmark case of Jan Mohammed v State of Gujarat, the court deviated from its earlier stand and changed its former position. In the present case The Bombay Agricultural Produce Markets Act, had a laying clause, however it so happened that the Act’s provisions could not be laid before the Provincial legislature in its first session because there was no working legislature at the time due to the World War II emergency. However, during the second session, the rules were duly placed. The court held that in the present instance the rules remained valid as the court opined that non- laying of rules in the first session of the House does not make the rules void per se. The court further held that if the provision of laying is only directory in nature and not mandatory but if the said rules so framed has been made without confirming to the requirements and in the process has violated provision of rule making then such rules become ipso facto void.

Indirect control

Parliament retains indirect control by its Committees. Scrutiny Committees were formed to improve Legislative oversight over subordinate legislation. Delegated law is scrutinized by Standing Committees of Parliament in the United Kingdom and India. In the United States, on the other hand, such commissions do not exist, and liability is divided. The responsibility is split among a variety of committees, including standing committees in each House of Congress, committees on government activities in each house, and other combined bodies such as the Atomic Energy Committee.

Recommendations by the committee on subordinate legislation

In order to streamline the mechanism of delegated legislation in India, the Committee on Subordinate Legislation has formulated the necessary recommendations.

(i) Rules made in furtherance of the Parent Act should not restrict or curtail in any manner the right to judicial review. 

(ii) Rules made in furtherance should not impose financial levy or tax. 

(iii) Rules made in furtherance should be written in plain, straight forward, clear and unambiguous manner. 

(iv) Legislative policy must be established by the legislative and enshrined in the Parent Act, while the executive may retain the authority to include details and further information, which can be further carried out by administrative laws. 

(v) The power to sub delegate in broad terms must be made inappropriate and some safeguard mechanisms must be put in place before a delegate can further delegate its authority. 

(vi) Rules made by the administration should not be discriminatory in nature and should go through a discrimination check. 

(vii) The rule-making authority given by the parent Act shall not be surpassed by the administration at any point of time. 

(viii) There should be a check on the amount of time during which the administration may make the required rules and there must not be unreasonable delay in the making of the same. 

(ix) The administration should not be given the ultimate power and control over interpretation of the rules so framed. 

(x) Statutory rules and orders so made in furtherance of the Parent Act should be given sufficient publicity.

The Committee’s work has been largely proven to be adequate, and it has proven to be a reasonably successful body in thoroughly reviewing and developing India’s delegated laws. Sir Cecil Carr observed that “It is evidently a vigorous and independent body.” As a result, the legislature in India uses two methods to exercise control over delegated legislation firstly through the ‘laying’ procedure and secondly through the Scrutiny committees. However, the question of whether or not these two methods are effective in providing check and balance on delegated legislation is a question must be duly considered.

Effectiveness of parliamentary control over delegated legislation in India

Legislative control over delegated legislation in India can be said to be more theoretical than practical in nature. In actuality the control exercised by the legislative cannot be said to be as effective as it ought to be. The ineffectiveness of the parliamentary control can be attributed to the following variables:

(i) The Parliament has neither time nor skills that are required to monitor the current administration which happens to have grown in scale, volume, sophistication, and complexity.

(ii) In the parliamentary set up, the legislative leadership rests with the executive which further plays an essential part in policy development.

(iii) The Parliament’s very scale is too big and unmanageable to be fully effective.

(iv) The overwhelming support enjoyed by the executive branch in the Parliament decreases any possibility of successful opposition or attempt at criticism.

(v) The development of delegated legislation diminished Parliament’s role in the formation of substantive laws and expanded the powers of bureaucracy.

(vi) The control exercised by the parliament is often erratic, general and political in nature.

(vii) The lack of strong and steady opposition in Parliament has also led to the ineffectiveness of India’s parliamentary control over governance of administration in India.

(viii) Absence of automatic machinery from the Parliament for successful inspection and scrutiny and furthermore so the quantity and complexity make it unsuccessful for any reliance to be made upon such scrutiny even if made given the inherent nature as regards to its amount and scope.

Conclusion and way forward

If parliamentary power over delegated laws in India is to be retained, the role of Parliamentary committees must be enhanced, and a separate statute, such as the Statutory Instruments Act like that of UK must be enacted, creating uniform rules and procedures on laying and publishing. To increase the efficacy of assigned delegated law diligence, the committee can be supplemented by a specialist official body. Aside from that, other action should be taken to improve Parliament’s power over delegated legislation. In India, parliamentary control over delegated laws is not as effective as it is in the United Kingdom. The laying off process is efficiently practiced in the United Kingdom and all regulatory rule-making is subject to Parliamentary oversight by the Select Committee on Statutory Instruments. In India the parliamentary control is not very effective as there is no legal requirements for the ‘laying’ of delegated laws. Scrutiny committees have proven to be an efficient body in reviewing and strengthening parliamentary oversight of subordinate laws, despite ineffectiveness in their own working.

Bibliography

• C.K Takwani, Lectures on Administrative law, Eastern Book Company, 2010.
• Lexis Nexis’s Principles of Administrative Law (2 Volumes) by M P Jain & S N Jain – 8th Edition.
• I.P. Massey, Administrative Law, Eastern Book Company, 6th Ed., 2005.
• Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur. 

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