Legislative Control / Parliamentary Control | Administrative Law - CLAT PG PDF Download

Parliamentary Control Over Delegated Legislation

• Parliament has the authority to delegate legislative powers to the executive or any other authority. However, it is also responsible for ensuring that these powers are exercised properly and not misused. The Supreme Court, in the case of Arvind Singh v. State of Punjab, emphasized the necessity of parliamentary control over delegated legislation.
• The main objective of parliamentary control is to monitor rule-making authorities and provide a platform for criticism in case of abuse of power. This mechanism is known as "legislative veto."
• Given the inherent risk of abuse of power by the executive in delegated legislation, it is crucial for the legislature to keep a close watch on the delegate. Judicial control over delegated legislation alone is not sufficient to keep administrative agencies within the bounds of delegation. Therefore, political control by Parliament is necessary.
• In the United States, Congress has limited control over delegated legislation. In contrast, England has broad and effective parliamentary control over administrative rulemaking due to the concept of parliamentary sovereignty. In India, parliamentary control over administrative rulemaking is implicit as a normal constitutional function since the executive is responsible to Parliament.

Modes of Legislative Control

Legislative control can be effectively exercised through various modes such as:

• Memorandum on Delegation
• Laying procedure
• Direct general control
• Direct special control
• Indirect Control/Scrutiny Committees

Memorandum on Delegation

The process of parliamentary control over delegated legislation begins at the delegation stage. A procedural rule in each house of Parliament requires that any bill proposing the delegation of legislative power be accompanied by a memorandum. This memorandum should explain the delegation proposals, outlining their scope and indicating whether they are exceptional or normal in nature.
The purpose of this memorandum is to inform Parliament members about the delegation of legislative power. The Lok Sabha committee on subordinate legislation has emphasized the mandatory nature of this rule. The memorandum should provide a comprehensive report on the delegation of power to subordinate authorities, covering details such as:

• Effects of delegation
• Particulars of subordinate authorities exercising the delegated power
• Manner of exercising the delegated power

The speaker may also refer bills involving delegation of legislative power to the committee for examination.

Laying procedure

Direct but general control over delegated legislation is exercised through various means:

• Debate on Act containing delegation: Members can discuss any aspect of the delegation, including its necessity, extent, type, and the authority to whom power is delegated.
• Questions and notices: Members can ask questions regarding the delegation of legislative powers, and if dissatisfied, can give notices for discussion.
• Moving resolutions and notices in the house: Members can move resolutions on urgent matters regarding delegation of power.
• Vote on grant: During budget demands, members can propose cuts, bringing the exercise of rule-making power under discussion.
• Private Member's Bill or debate during the President's address: Members can discuss delegation during these occasions.

Direct Special Control is exercised through the technique of laying on the table of the house rules and regulations framed by the administrative authority.

Indirect Control/Scrutiny Committees

• Types of Laying Procedures in India: In India, there are several types of laying procedures for delegated legislation:
• Laying without further procedures: Rules come into effect as soon as they are laid, merely informing the house.
• Laying subject to negative resolution: Rules cease to have effect if negated by a resolution.
• Laying subject to affirmative resolution: Rules have no effect unless approved by a resolution of each house.
• Laying in draft subject to negative resolution: Draft rules come into force after a specified period unless disapproved.
• Laying in draft subject to an affirmative resolution: Draft rules have no effect unless approved by the house.
• Laying with deferred operation: Rules' operation is postponed until laid.
• Laying with immediate effect but subject to annulment: Rules come into force when laid but cease to operate if disapproved.

Memorandum on Delegation

The process of parliamentary control over delegated legislation commences during the delegation stage. A procedural rule in each house of Parliament mandates that any bill proposing the delegation of legislative power be accompanied by a memorandum. This memorandum should elucidate the delegation proposals, outlining their scope and indicating whether they are exceptional or normal in nature.
The purpose of this memorandum is to inform Parliament members about the delegation of legislative power. The Lok Sabha committee on subordinate legislation has emphasized the mandatory nature of this rule. The memorandum should provide a comprehensive report on the delegation of power to subordinate authorities, covering details such as:

• Effects of delegation
• Particulars of subordinate authorities exercising the delegated power
• Manner of exercising the delegated power

The speaker may also refer bills involving delegation of legislative power to the committee for examination.

Failure to Lay: Effects

• In England, the situation regarding the failure to lay is unclear. In the case of Bailey v. Williamson, 1873 8 QB, the court considered the condition of laying to be directory. However, the position changed after the enactment of the Statutory Instruments Act, 1946. In the case of R. v. Sheer Metalcraft, 1954, QB, the court ruled that delegated legislation became valid only after it was laid before Parliament.
• In India, the position is also not free from doubt. In the case of Express Newspaper (P) Limited v. Union of India, 1958 AIR SC, the Supreme Court observed, albeit in obiter dicta, that the provision regarding laying was mandatory. However, in the case of Re Kerala Education Bill, AIR 1958 SC, the Supreme Court clarified that once the rules are laid before the legislative assembly, they can be altered or amended, and it is these rules that become effective.
• In the case of Jan Mohammed Noor Mohammad Bagban v. State of Gujarat, AIR 1966 SC, the court held that the rules made under the Parent Act were valid, and noted that even though the rules were not laid before the legislature, they became valid from the date of their creation, as the Act did not stipulate that they could be invalidated due to the failure to present them before the legislature.
• In M. K. Papiah and Sons v. Excise Commr, 1975 SCC, the court ruled that the rules under the Parent Act came into effect as soon as they were framed. The court rejected the argument that the legislature's power to annul or repeal rules later was insufficient control over delegated legislation. Justice Mathew remarked that while the reduction of parliamentary oversight over delegated legislation might be regrettable, it was unavoidable due to the complexities of modern life.
• The consequences of failing to lay depend on the specific terms of the laying clause. If the laying provision is a condition precedent, then the requirement of laying is mandatory, and the rules do not come into force until they are laid. In the case of a "negative clause," however, the rules come into operation immediately, and the laying provision is generally seen as directory.

Indirect Control/Scrutiny Committees

Object: As previously discussed, laying on the table has not always been considered mandatory. Even when that requirement is met, simply laying the rules before Parliament would not be effective unless the rules are thoroughly studied and scrutinized. Therefore, to strengthen Parliamentary control over delegated legislation, Scrutiny Committees have been established. In India, there are two such committees:

• The Lok Sabha Committee on Subordinate Legislation
• The Rajya Sabha Committee on Subordinate Legislation

Parliament exercises this control through these committees. In 1950, the law minister proposed the formation of a committee similar to the select committee on Statutory Instruments, 1944, to examine delegated legislation and inform the House if administrative rulemaking has exceeded parliamentary intent, deviated from it, or violated any fundamental norm or principle.

• Consequently, the Lok Sabha Committee on Subordinate Legislation was established on 1st December 1953. This committee comprises 15 members nominated by the Speaker for a one-year term, with the Chairman appointed by the Speaker from among the members. If the Deputy Speaker is a member, they serve as the Chairman.
• In England, it is customary for the leader of the opposition to be appointed as the chairman of such committees. The Indian committee possesses broader powers than its English counterpart. While the English committee can only request government departments to send memos or have a person appear as a witness, the Indian committees have more extensive authority.

According to Rule 223 of the Lok Sabha Rules of Procedure, the committee's primary functions include examining the following:

1. Whether the rules align with the general objectives of the Act.
2. Whether the rules contain provisions that should be more appropriately addressed in the Act.
3. Whether the rules impose a tax.
4. Whether the rules directly or indirectly restrict the jurisdiction of the courts.
5. Whether the rules have retroactive effect.
6. Whether the rules entail expenditure from the Consolidated Fund.
7. Whether there has been a justifiable delay in publication for laying.
8. Whether the rules require further clarification for any reason.

Between 1953 and 1961, this committee scrutinized approximately 5300 Orders and rules and submitted 19 reports. The Rajya Sabha has a similar committee, established in 1964, with functions akin to those of the Lok Sabha committee.

Recommendations by the Committee on Subordinate Legislation

The Committee on Subordinate Legislation has made several recommendations to streamline the process of delegated legislation in India:

1. The power of Judicial review should not be restricted or removed by the rules.
2. A financial charge or tax should not be imposed through rules.
3. The language used in the rules should be simple,clear, and not complicated or ambiguous.
4. Rules should not have retroactive effect unless such authority has been explicitly granted by the parent Act, as it may adversely impact a person's vested rights.
5. Legislative policy should be determined by the legislature and specified in the statute, while the executive can handle details through rules.
6. Sub-delegation in broad terms is inappropriate, and safeguards should be in place before allowing a delegate to sub-delegate authority to another official.
7. Discriminatory rules should not be created by the administration.
8. Rules should not exceed the rule-making authority granted by the parent Act.
9. There should not be undue delays in rule-making by the administration.
10. Deficiencies pointed out to the administration should be addressed as soon as possible.
11. The rules made by the administration, which need to be laid before the House as per the parent Act, should be presented to Parliament promptly. In cases of significant delay, an explanatory note detailing the reasons for the delay should accompany the laid rules.
12. The final authority for interpreting the rules should not rest with the administration.
13. Rules should include short titles,explanatory notes,references to previous amendments for ease of location, and proper understanding.
14. Sufficient publicity should be given to statutory rules and orders.

For effective parliamentary control over administrative rulemaking, it is essential to strengthen the role of parliamentary committees and enact a separate law, similar to the Statutory Instruments Act 1946, ensuring uniform rules for laying and publication. Additionally, a specialized official body may support the committees to enhance the oversight of administrative rulemaking.

Other Controls

• Apart from judicial and parliamentary controls, additional safeguards and controls are sometimes implemented to prevent the misuse of delegated power. One such safeguard is to clearly and precisely limit the delegate's authority. If the scope of power is not well-defined in the parent Act and the language is overly broad, the executive authority may encroach upon legislative powers and unjustly interfere with individual rights.
• The courts should also interpret the provisions of rules and regulations in a way that does not grant blanket powers to the executive authority. However, relying solely on the good judgment of individuals, regardless of their position, is not advisable. It is often assumed that individuals in power possess good sense, but this is not always the case. History does not support this presumption, and in a society committed to the rule of law, it is unwise to leave any aspect of governance to discretion when it can be effectively managed by the rule of law.
• It is also suggested that the delegation of power should be limited to trustworthy authorities, such as the Central Government and State governments, as these entities are expected to exercise the conferred power reasonably.
• In the case of Maneka Gandhi v. Union of India, 1978, the Supreme Court noted that while there is no appeal against the central government's decision to impound a passport, it is assumed that the central government will exercise this power responsibly. When power is granted to a high authority like the central government, the possibility of abuse of power is minimal.
• In S.R. Bommai v. Union of India, 1994, concerning the President's power to declare an emergency, the court must be aware of the potential for abuse of power even in collective decision-making. Similarly, in K. Ashok Reddy v. Government of India, 1994, where the transfer of a High Court judge was challenged, the Supreme Court viewed the collective decision of high constitutional authorities as an internal safeguard against arbitrariness and bias.
• Certain Central Acts provide additional safeguards by allowing State Governments to frame rules with prior approval from the Central Government. For instance, Section 17 of the Probation of Offenders Act, 1958. Some statutes empower the government to frame rules subject to previous publication in the Official Gazette, such as Section 29 of the Minimum Wages Act, 1948. In some cases, rules can only be framed after consulting the affected parties, as seen in Section 59 of the Mines Act, 1952.
• While plenary law-making powers rest with elected representatives, the political government, guided by the bureaucracy, often ensures the passage of bills through various means, reinforcing a centralized power structure. Therefore, there must be social auditing by the public to ensure responsible governance. The constitutional endorsement of extensive delegation of power from the legislature to the executive may, in critical instances, undermine responsible governance and democratic principles. A careful and radical restructuring of the law-making process is necessary to maintain participatory and pluralistic governance. As Krishna Iyer J. noted, it is essential to be mindful of potential issues within the parliamentary system, not because they are imminent, but because society may have to bear the consequences in the future.

While subordinate or ancillary legislation-making power can be delegated to a delegate, the legislature must confer this power with clear policy guidelines, principles, or standards to govern the delegate's exercise of that power. Any delegation that exceeds this limit violates the constitutional framework.