Delegated or subordinate legislation is the name given to rules, regulations, bye-laws, orders, schemes, etc. framed in pursuance of the legislative functions delegated by Parliament to a subordinate authority. This is promulgated by an authority subordinate to Parliament in exercise of the powers delegated in the original legislation.
What is the need for Subordinate Legislation?
In the context of the concept of the modern Welfare State, there is hardly any walk of a citizen’s life which is not regulated by the state in one way or the other. Consequently, the legislation that has to be passed by the Legislature is so vast and varied that is impossible for any body of legislators to deliberate upon, discuss and approve every little detail of legislation which may be necessary for proper administration. Apart from the pressure on the parliamentary time, the technicality of the subject-matter, the need to meet unforeseen contingencies, the requirement of flexibility, etc. make an delegated legislation a necessity. The Legislature can only lay down the broad policy and principles of a legislation, leaving the details to be worked out by the executive in the form of rules, regulations, leaving the details to be worked out by the executive in the form of rules, regulations, bye-laws, etc.
What are the risks inherent in Subordinate Legislation?
Delegation of legislative power, inevitable and indispensable as it is, has certain inherent risks. One of the risks pointed out is that the Parliamentary statutes may tend to be skeletal, containing only the barest general principles omitting matters of substance which may have a vital bearing on the life of the citizen. Another risk pointed out is that the powers delegated might be so wide as to subject the citizen to a harsh or unreasonable action by the administration. The third risk is that some powers may be so loosely defined that the areas intended to be covered may not be clearly known. Another risk is that the executive may, while exercising rule-making power, transgress the limits laid down by Parliament. All these risks are there. It is the responsibility of Parliament to see that the power delegated by it are not abused. Hence the need for the Parliamentary control over the subordinate legislation.
What are the ways for Parliamentary Control over Subordinate Legislation?
Firstly, Parliament has an opportunity of examining the power to make such legislation when
it appears in a Bill before it. Secondly, the parent statutes often require the subordinate laws to be laid before Parliamentary procedure. Thirdly, the subordinate laws may in other ways be questioned or debated by Parliament. But the most effective control which Parliament exercises over the subordinate legislation is through a standing scrutiny committee—known as the Committee on Subordinate Legislation.
What is the Committee on Subordinate Legislation of Lok Sabha?
Suggestion to form a Standing committee on Subordinate Legislation was first mooted in Provisional Parliament during the Budget Session in the year 1950. A set of rules for constituting such a Committee was framed and incorporated in the Rules of Procedure and conduct of Business in Lok Sabha on April 30, 1951. However, the first such Committee was constituted by the Speaker on December 1, 1953. Initially, the Committee consisted of 10 members by amending the relevant rule on January 9, 1954.
A significant provision in the Rules is that a Minister cannot be nominated as a member of the Committee and if a member, after his nomination as member of the Committee, is appointed as a Minister, he ceases to be a member of the Committee from the date of such appointment. This provision is intended to keep the Committee free from any influence of the Government. Thus, the Committee can function independently and arrive at conclusions, on the basis of the facts which come to its notice, objectively without any fear or favour.
The term of office of the Committee is one year from the date of its appointment. In making selection from a panel of names as received from the Leader of the House and the leaders of other parities and groups in Parliament, the Speaker gives preference to those having legal background and experience.
The Chairman of the committee is appointed by the Speaker from amongst members of the Committee.
If, however, the Deputy Speaker is a member of Committee, he is appointed the Chairman. The Committee has had the privilege of being chaired by eminent luminaries in the legal field irrespective of their party affiliations.
What are the functions of the Committee?
The Committee is authorised under the Rules of Procedure to make detailed rules for regulating its working, and in exercise of this power, the Committee has framed rules for its internal working. The procedure of work evolved in the course of working of the Committee for over 45 years have enabled the Committee to act as an effective instrument of Parliamentary control over the subordinate legislation brought out by the executive. The Committee exercises control over subordinate legislation at two stages:
(i) Bill stage when the powers to frame subordinate legislation are delegated; and
(ii) ‘Order’ stage when the rules, regulations etc. in pursuance of the delegated powers are issued by the executive.
An important safeguard against assumption of arbitrary powers by the executive is that the rules framed by it in exercise of the delegated powers of legislation not only be laid before Legislature but that Legislature be always alive to exercise its statutory right of annulling or modifying them. For this purpose, the Committee has long before set in motion a standard formula for inclusion in all Bills delegating rule-making power. Every Bill introduced in the House or transmitted by the Rajya Sabha is examined by the Committee to see whether it contains a provision for laying and modification of the rules on the lines set forth by the Committee.
Under Direction 103A, the Speaker may also refer a Bill containing provisions for delegation of legislative powers, to the Committee for scrutiny. The Committee is required to examine the extent of the powers sought to be delegated, and if the Committee is of the opinion that the provisions be annulled in part or as a whole or be amended in any respect, it may report that opinion and the grounds therefore to the House before the Bill is taken up for consideration. For facility of members, every Bill involving proposals for the delegation of legislative powers is accompanied by a memorandum explaining such proposal and stating also whether they are of normal or exceptional Committee.
Under Rule 317, the function of the Committee is ‘to scrutinise and report to the House whether the powers to make regulations, rules, sub-rules, byelaws, etc. conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation’. The committee examines all ‘Orders’, whether laid on the Table of the House or not, framed in pursuance of the provisions of the Constitution or a statute delegating power to a subordinate authority to make such ‘Orders’. In practice, the Committee starts scrutinising ‘Orders’ after they are published in the official Gazette, irrespective of whether they have been laid on the Table of the House or not.
The Committee also examines the recruitment rules framed under the proviso to Article 309 of the Constitution, which are notified in the official Gazette and
assigned serial numbers like all other statutory ‘Orders’ framed under the powers delegated by legislative enactment, even though they are not required to be laid before the House.
What is its approach?
In its approach, the Committee is not content merely with the legality of the rules framed under the authority of delegated powers. The Committee aims far beyond that as the ultimate goal of all legislation (including subordinate legislation) is the larger public good. The Committee ensures, on the one hand, that the subordinate legislation framed by the executive does not transgress the limits laid down in the parent statutes, and watch, on the other hand, that it is in conformity with the canons of equity and natural justice and does not in any way result in unnecessary hardship, harassment or inconvenience to the public at large. As the public at large consists mainly of laymen, it is imperative that the intention behind the subordinate legislation is expressed in simple language which can be understood by common man without any difficulty. To achieve this objective, the Committee has always recognised the need that the statutory orders should be precise, free from ambiguity and shouldn't be cryptic, sketchy or skeletal. The committee further ensures that such legislation does not in any way conflict with the general objects of the Constitution or the stature pursuant to which it is made.
Although the Committee does not like to question the powers conferred by Parliament through a statute, it can certainly while examining the subordinate legislation issued thereunder, take note that the powers are not abused. Under Rule 320, it is incumbent on the Committee to see whether a rule contains matter which in the opinion of the Committee, should more properly be dealt with in an Act of Parliament. It is also the duty of the Committee to see whether the rule appears to make some unusual or unexpected use of the given powers. Another important point which the Committee to see whether the rule appears to make some unusual or unexpected use of the given powers. Another important point which the Committee bears in mind is that the Government is not allowed to resort to issuing executive orders or administrative instructions to regulate the matters which should have been provided through the statutory rules. Once the need for issue of executive order has arisen, it should be incumbent on the executive to frame rules, regulations, as the case may be, in accordance with the relevant statute. In this connection, the Committee has categorically observed that ‘administrative instructions are no substitute for statutory rules because such instructions are not published in the Gazette and as such they do not come to the notice of the Committee to judge their fairness or otherwise.
Several statutes provide for prior publication of rules in the draft form for eliciting comments from the general public. The committee does not involve itself at this stage of drafting of rules of the obvious reasons that such rules are in fluid form and liable to be modified by the Government in the light of public comments.
Even in cases where the rules are not statutory required to be published in the draft form and the government approaches the Committee for prior approval, it refrains from scrutiny of such rules with the following exceptions:-
(a) Where the stature providers for laying of draft rules before Parliament for approval e.g. rules made under Section 7(2)(c) of the Oilfields (Regulation and Development) Act, 1948.
(b) Where the draft rules or amendments emanate from the recommendations of the Committee itself.
Under Direction 105, after an ‘Order’ is published in the Gazette, it is examined by the Lok Sabha Secretariat to determine whether it is required to be brought to the notice of the committee on any of the grounds laid down in rules or in accordance with any practice or direction of the Committee. If, in the course of examination, it is considered necessary to seek any clarification regarding any point, it is referred to the Ministry concerned and the matter, if necessary, re-examined in the light of such reply. If it is considered necessary to bring any point to the notice of the Committee, a self-contained memorandum is prepared on the subject and after the approval of the Chairman, placed before the Committee. The approved memorandum together with extracts of the relevant ‘Order’ wherever necessary, are circulated to the members of the Committee in advance. In cases where the Committee considers it necessary, it hears the oral evidence of the representatives of the Ministry concerned. The decisions of the Committee are recorded in the minutes. The draft Report is then prepared by the Secretariat on the basis of the minutes. The draft Report, as approved by the Chairman, is placed before the Committee are recorded in the minutes. The draft Report is then prepared by the Secretariat on the basis of the minutes. The draft Report, as approved by the Chairman, is placed before the committee for adoption. In order to ensure that the members of the Committee are not precluded from examining the ‘Orders’ and giving suggestions, copies of all the ‘Orders’ laid on the Table of the House are circulated to them in convenient batches.
It is well known that the parties which are affected by a given set of rules are always in a better position to say how the rules work in actual operation.Likewise, persons who have to deal with the working of rules in their professional capacity, such as lawyers, accountants, actuaries, etc. have some special knowledge which can be profitably made use of by the Committee. As a result of consultation with such institutions/interests, not only unnecessary rigours of a subordinate law can be removed but such law made more purposive, and in tune with the needs of the day. Keeping this in view, the Committee always welcomes comments/suggestions from the chambers of commerce, trade unions, professional bodies, etc.on the provisions of the rules with which they are concerned wherever considered necessary. There can thus be no objection to the Committee taking cognisance of petitions relating to assumption of arbitrary powers or excessive exercise of delegated authority by the executive transgressing the limits laid down by Parliament and thereby subjecting a citizens to any harsh or unreasonable action by the administration.
What are the procedures for the implementation of Committee's recommendations?
The procedure for the implementation of Committee’s recommendations is set forth in Direction 108 by the Speaker. The Ministries are required to furnish from time to time the statements of action taken or proposed to be taken on the recommendations and on the assurances given by them in the course of correspondence with the Committee. The information is placed before the Committee in the form of self-contained memoranda with the approval of the Chairman. The Committee has laid down a time limit of six months within which the Government is expected to implement its recommendations. In cases where Government is not in a position to implement or feels any difficulty in giving effect to a recommendation made by the Committee, the matter is reconsidered by the Committee in the light of such views. If it thinks fit, the Committee may either drop the recommendation or modify it or insist on its implementation and make a further report to the House accordingly. As a matter of tradition, the reports of the Committee are not discussed in the House. However, members are free to raise a discussion on a matter covered by the report, under the relevant rules.