1.

JUDICIAL CONTROL
It was held in the State of Kerala v. Unnikrishnan, Judicial review of Administrative rule-making
cannot be a foreclosed in any manner by the enabling Act.
1.1. Constitutionality of the parent Act
There is always a presumption in favour of constitutionality, and a law will not be declared
unconstitutional unless the case is so clear so as to be free from doubt. Where the validity of a
statute is questioned and there are two interpretations one of its will make the law valid and the
other void, the former must be preferred and the validity of the law upheld.
In, the scheme of judicial control of delegated legislation the first question which may arise
is whether the parent statute under which legislative powers have been delegated to the
administration is itself Constitutional or not, for if the delegating statute itself is unconstitutional,
then the delegated legislation a emanating there under will also be invalid.
The parent Act may be unconstitutional on several Grounds example
1. Excessive delegation or
2. Breach of Fundamental Rights or
3. On any other ground such as Distribution of powers between the Centre and States.
1.2. Constitutionality of Delegated Legislation
There is a presumption in favour of constitutionality of statutes as well as delegated legislation
and it is only when there is clear violation of Constitutional provision for of the parent statute in
the case of delegated legislation beyond reasonable doubt that the court should declare it to be
unconstitutional.
The courts may be asked to consider the question of constitutionality of delegated legislation
itself. It is quite possible that the parent Statute may be Constitutional the enabling delegated
legislation may be in conflict with some provision of the Constitution. For example, delegated
legislation may be in conflict with fundamental right guaranteed by the Constitution.
A few examples may be mentioned herein to illustrate the point:
i) In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh a few provisions of UP Coal
Control Order, 1953 made under Section 3(2)of Essential Supplies Act, 1946 were declared
ultra-virus as infringing Art. 19 (1)(g), a fundamental right guaranteed by the Constitution.
ii) In Rashid Ahmed v. Municipal Board, 1950 certain bye laws made by a municipality were
held bad under article 19 (1)(g).
iii) In Narendra Kumar v. Union of India 1960 the Supreme Court specifically considered the
point whether the question of unconstitutionality of delegated legislation made under a valid Act,
could be raised or not. The Non- Ferrous Metal Order, 1958 was made under the Essential
Commodities Act, 1955.
In Hari Shankar Bagla v. State of Madhya Pradesh AIR, 1954 the validity of Essential
Commodities Act, had been upheld. The question in Narendra now was whether the
constitutional validity of the order made under the Act could be canvassed under Art. 19(1)(g).
The court held that though law may not be unconstitutional, an order made there under may yet
be challenged under the constitution, because the law could not be presumed to authorise
anything unconstitutional.
iv) In Air India v. Nergesh Meerza AIR, 1981 is the Supreme Court declared certain regulations
pertaining to the conditions of service of air hostess in India, and undertaking of the Central
Government as discriminatory under Art. 14 of the Constitution.
v) The Bar Council made a rule under the Advocates Act, barring enrolment of a person as an
advocate if he was engaged in any other profession. The rule was declared valid as it did not
infringe Art.14 of the Constitution.
1.3 Doctrine of Ultra Vires
Ultra vires means beyond power or authority or lack of power. An act may be said to be ultra
vires when it has been done by a person or a body of persons which is beyond his, its or their
power, authority or jurisdiction. 8Ultra vires9 relates to capacity, authority or power of a person
to do an act. It is not necessary that an act to be ultra vires must be illegal. The act may or may
not be illegal. The essence of the doctrine of ultra vires is that an act has been done in excess of
power possessed by a person.
Delegated legislation does not fall beyond the scope of judicial review and in almost all
democratic countries it is accepted that courts can decide the validity or otherwise of delegated
legislation mainly applying two tests:
1. Substantive ultra vires; and
2. Procedural ultra vires.
1. SUBSTANTIVE ULTRA VIRES
When an Act or legislation is enacted in an excess of power, conferred on the Legislature by the
Constitution, the legislation is said to be ultra vires the Constitution. On the same principle, when
a subordinate legislation goes beyond what the delegate is authorized to enact (and exceeds over
conferred on it by the Legislature), it acts ultra vires. This is known as substantive ultra vires.
Substantive ultra vires means that the delegated legislation goes beyond the scope of the
authority conferred on it by the parent statute or by the Constitution. It is a fundamental principle
of law that a public authority cannot act outside the powers; i.e. ultra vires, and it has been
rightly described as the 8central principle9 and 8foundation of large part of administrative law.9
An act which, for a reason, is in excess of power is ultra vires.
Circumstances
A delegated legislation may be held invalid on the ground of substantive ultra vires in the
*where the parent Act is unconstitutional
* Where parent Act delegates essential legislative functions;
*Where delegated legislation is inconsistent with general law;
*Where delegated legislation is unconstitutional
*Where delegated legislation is inconsistent with parent Act;
*Unreasonableness;
*Mala fide (Bad faith);
*Sub-delegation;
*Exclusion of judicial review;
*Retrospective effect;
1. Where Parent Act is Unconstitutional
For delegation to be valid, the first requirement is that the parent Act or enabling statute by
which legislative power is conferred on the executive authority must be valid and constitutional.
If the delegating statute itself is ultra vires the Constitution and is bad, delegated legislation is
necessarily bad. Under the Defence of India Act, 1939, the Central Government was empowered
to make rules for requisition of immovable property. But the subject of requisition of immovable
property was not within the field of the Federal Legislature. On that ground, the rule was held
invalid(Tan Bug Taim v Collector of Bombay , AIR 1946).
In Chintamanrao v. State of M.P, the parent Act authorized the Deputy Commissioner to
prohibit manufacturing of bidis in some areas during certain periods. The order passed by the
Deputy Commissioner under the Act was held ultra vires inasmuch as the Act under which it was
made violated the Fundamental Right to carry on any occupation, trade or business, guaranteed
by
Article 19(1)(g) of the Constitution.
2. Where parent Act delegates essential legislative functions
It is a well settled principle of Administrative Law that primary and essential legislative
functions must be performed by the Legislature itself and they cannot be delegated to any other
organ of the State. To put it differently, under the scheme of our Constitution, a legislature
cannot
create, constitute or establish a parallel Legislature.
3. Where delegated legislation is inconsistent with parent Act
The validity of delegated legislation can be challenged on the ground that it is ultra vires
the parent Act or enabling statute. It is an accepted principle that delegated authority must be
exercised strictly within the authority of law. Delegated legislation can be held valid only if it
conforms exactly to the power granted.
In Indian Council of Legal Aid & Advice v. Bar Council of India, a rule was framed by the
Bar Council barring enrolment as advocates of persons who had completed 45 years of age. The
parent Act enabled the Bar Council to lay down conditions subject to which an advocate 8shall
have right to practice.9 Declaring the rule ultra vires, the Supreme Court held that the Bar
Council
can make the rule only after a person is enrolled as an advocate, i.e. at post-enrolment stage. It
cannot frame a rule that is barring persons from enrolment. The rule was thus inconsistent with
the
parent Act.
The validity of delegated legislation can be challenged on the ground that it is ultra-vires
the parent act or enabling statute. It is an accepted principle that delegated authority must be
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exercised strictly within the authority of law. Delegated legislation can be held valid only if it
conforms exactly to the power granted.
Under English law delegated legislation may be struck down on the ground that if it
infringes the parent Act. Thus, where, in exercise of power under the parent Act, the executive
framed certain regulations in order to discourage Asylum claims by migrants, it was held that the
regulation were ultra vires since they rendered the provisions of the Act nugatory.
This principle is accepted in India also it is well settled that the rule making power
conferred by the parent Act does not enable rulemaking authority to make a rule which may
travel
beyond the scope of the Act or may be inconsistent with or repugnant to the enabling Act. If the
rule cannot be reconciled with the parent Act, it must be struck down. This principle was laid
down in Chandra Bali v. R., AIR 1952.
In Mohd. Yasin v. Town Area Committee AIR 1952 and in State of Karnataka v. Ganesh
kamath, 1983 SCC, under the parent Act, the municipality was empowered to charge fee only for
the use and occupation of some property of the committee, but the town area committee framed
bye-laws and imposed levy on wholesalers irrespective of any use or occupation of property by
them. Supreme Court held that the bye laws were beyond the powers conferred on the committee
and were ultra-virus.
In Kunj Bihari Bihari Lal vs State of H. P. 3 2000 SCC., he parent Act H.P. Ceiling on Land
Holdings Act, 1972, conferred on the state government power to make rules "for carrying out
purpose of the Act". Though the Act excluded from the operation of the Act "Tea Estate", rules
(delegated legislation) sought to include tea plantation and prohibited transfer of such land. The
rule was held ultra-vires and was struck down.
Even where the power to make delegated legislation is in subjective terms and allows the
administrative agency to make rules "as appear to it to be necessary or expedient for giving
effect
to the provisions of the Act", the discretion is neither unfettered nor beyond judicial scrutiny.
The
court has power to decide the validity for vires of such provision.
The question when can a bye-law any other delegated legislation is said to be inconsistent
with or repugnant to the parent Act or any general law and therefore, bad. In White v. Morley
1899
Q B "A delegate is not entitled to exercise powers in excess or in contravention of the delegated
powers. If any order is issued or framed in excess of powers delegated to the authorities, such
power would be illegal or void". Channel LJ stated: <A bye- law is not bad because it deals with
something that is not dealt with by the general law. But it must not alter the general law by
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making that lawful which the general law makes unlawful; or that unlawful which the general
law
makes lawful=.
Whether a particular piece of delegated legislation is in excess of power of subordinate
legislation conferred on the delegate has to be determined with reference to specific provisions
contained in the relevant statute conferring the power to make the rule regulation bye laws extra
and also the object and purpose of the Act as can be gathered from various provisions of the
enactment.
In State of M.P. v. Bhola SCC 2003 Supreme Court upheld the validity of rule 3 of the M
P Prisoners Release on Probation Rules, 1964 providing that a prisoners convicted under Section
396 of the penal code 1860 (IPC) would not be eligible for release on probation. It was held that
classification of offenders on the basis of nature and gravity of offences cannot be said to be
arbitrary and unreasonable.
In Ajay Canu v. Union of India, SCC 1988, Rule requiring compulsory wearing of helmet
by persons driving two-wheeler would not be held arbitrary discriminatory for imposing and
reasonable restriction on the fundamental right guaranteed under article 19 (1)(d) of the
constitution.
4. Where delegated legislation is inconsistent with General law
A subordinate legislation, apart from being intra vires the Constitution and consistent with
the parent Act, must also be in consonance with general law, i.e. any other law enacted by the
Legislature. This is based on the principle that a subordinate or delegated legislation made by the
executive cannot be contrary to the law of the land.
5. Where delegated legislation is unconstitutional
Sometimes a parent Act or delegating statute may be constitutional and valid and
delegated legislation may be consistent with the parent Act, yet the delegated legislation may be
held invalid on the ground that it contravenes the provisions of the Constitution. It may seem
paradoxical that a delegated legislation can be struck down on this ground because if the parent
Act is constitutional and delegated legislation is consistent with the parent Act, how can the
delegated legislation be ultra vires the Constitution? It was precisely this argument which the
Supreme Court was called upon to consider in Narendra Kumar v. Union of India. The Supreme
Court held that even though a parent Act might not be unconstitutional, an order made
thereunder
(delegated legislation) can still be unconstitutional and can be challenged as violative of the
provisions of the Constitution.
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In Hindustan Times v. State of U.P., Parliament, by an Act provided pension to working
journalists. The State Government, by executive instructions-imposed levy on government
advertisements on newspapers and deducted such levy from pension fund of working journalists.
The directive of the State Government was held beyond legislative competence and ultra vires
the
Constitution.
6. Unreasonableness
The test of unreasonableness has been, applied in Britain to the bye laws made by a
municipal corporation. The court might well take the position that the legislation never intended
to
give authority to make unreasonable rules, and they are, therefore, ultra vires.
In Kruse v. Johnson 1898 2 Q B, laying down the proposition, Lord Russel, however,
gave somewhat Limited meaning to the term unreasonableness, viz., if bye laws were found to be
partial and unequal in their operation as between different classes, if they were manifestly unjust,
if they disclosed bad faith, or if they involved such oppressive or gratuitous interference with the
right of those subject to them as could find no justification in the minds of reasonable man, then
these can be regarded as ultra-vires on the presumption that Parliament never intended to give
authority to make such bye laws.
In Air India v. Nergesh Meerza 1981 SCC, regulations made by Air India providing for
termination of service of an air hostess on her first pregnancy has been held to be the most
unreasonable and arbitrary provision which is abhorrent to the notions of civilized society. The
ruling in Yadav v. State of Haryana AIR1987 SC, also appears to come very close to saying that
unreasonable rules would be ultra vires.
The courts however adopt a restrictive view of unreasonableness. The test is not whether
the impugned rules are reasonable, but whether these are undesirable. A court does not hold a
rule
unreasonable merely because it does not like or approve the rule. A rule is held unreasonable if it
is <manifestly unjust, capricious, inequitable or partial in operation=. Rajasthan SRTC v. Bal
Mukund Bairwa 2009 SCC rule authorising a public sector undertaking to dismiss a permanent
employee just by giving him a 3 months9 notice without any hearing being given to him has
been
quashed by the Supreme Court as being unreasonable and arbitrary.
It might also be pointed out that delegated legislation may also be adjudged as
unreasonable under Article 14 or 19. Art.14 is been given as expansive interpretation by the
courts
to cover quite a few aspects of Administrative process.
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In Indian Express Newspapers v. Union of India, 1985 SCC the Apex Court ruled that
subordinate legislation does not enjoy the same degree of immunity as substantive legislation
enjoys. 8Unreasonableness9 is one of the grounds of judicial review available to test validity of
delegated legislation. If a delegate intends to impose a condition, which is unreasonable, it
cannot
be held legal or valid.
7. Mala Fide
Indian Administrative Law is based on the principle that every statutory power must be
exercised in good faith. Power to make delegated legislation cannot claim immunity from
judicial
review if the power has been exercised by the rule-making authority mala fide or with dishonest
intention. It may, however, be stated that the decisions of the Supreme Court, are not consistent
on
the point and there is cleavage of opinion.
8. Exclusion of Judicial Review
Quite often, statutes make an attempt to exclude judicial control of delegated legislation, by
providing that the rules made under and Act shall not be called in question in any court and they
may also provide that the rules made under any Act will have effect as if enacted in the Act. The
fundamental question here is whether such provision in the statute would prevent judicial review
of delegated legislation under the statute.
In England, this question was examined by the house of Lords in Institute of Patent Agents
v. LockWood, 1894 A.C. , in this case, Lord Herschell observed that a clause to the effect that
"the
rules made under the statute shall have the same effect as if they were contained in this Act"
would for all purpose mean that the rule would be part of the Act and for all purposes one has to
treat the rule exactly as if they were in the Act. This is known as Herschel Doctrine. However,
this
rule has been modified in Minister of Health v. King 1931 A.C., in this case, the House of Lords
held that if the rule or the scheme made under the delegated power was inconsistent with the
parent Act, the parent Act would prevail unless the rule or the scheme was incorporated in a
subsequent Act of the Parliament.
Herschel Doctrine in India
The position in India is not very clear. In Ravalu Shubha Rao v. Income Tax
commissioner, AIR 1956 SC, it appears that the Supreme Court has adopted the Herschel
Doctrine
but in Chief Commissioner of Ajmer v. Radheshyam, AIR 1957 Supreme Court the Doctrine was
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not followed. However, in Orient weaving Mills v. Union of India, AIR 1963 the Supreme Court
again adapted the Herschel Doctrine. The various High Courts have taken conflicting stands.
In State of Kerala v. Abdulla and Co. AIR 1965 SC Justice Shah and Justice Sikri made
the, following observations: "Power to frame rules is conferred by the Act upon the state
government and that power may be exercised within the strict limits of the authority conferred. If
in making a rule, the state transcends its authority, the rule will be invalid for statutory rules
made
in exercise of delegated authority are valid and binding only if made within the limits of
authority
conferred. Validity of a rule whether it is declared to have effect as if enacted in the Act or
otherwise is always open to challenge on the ground that it is unauthorised=.
The rule of law has always recognized power of judiciary to review legislative and quasi
legislative acts. The validity of a delegated legislation can be challenged in a court of law. As
early as 1877 in Empress v. Burah, the High Court of Calcutta had declared Section 9 of Act
XXII
of 1869 ultra vires. Though the decision of the Calcutta High Court was reversed by the Privy
Council, neither before the High Court nor before the Privy Council it was even contended that
the court had no power of judicial review and, therefore, cannot decide the validity of the
legislation.
Sometimes, however, attempts are made by the legislature to limit or exclude judicial
review of delegated legislation by providing different modes and methods. Thus, in an Act a
provision may be made that rules, regulations, bye-laws made under it 8shall have effect as if
enacted in the Act9, 8shall be final9, 8shall be conclusive9, 8shall not be called in question in
any
court9, 8shall not be challenged in any legal proceedings whatsoever9 and the like.
9. Retrospective operation
It is well-settled that delegated legislation cannot have any retrospective effect unless such
a power is conferred on the rule-making authority by the parent Act. The legislature can always
legislate prospectively as well as retrospectively subject to the provisions of the Constitution. But
the said rule will not apply to administrative authorities exercising delegated legislative power.
Some statutes specifically confer power to the rule-making authority to frame rules with
retrospective effect.
2. PROCEDURAL ULTRA VIRES
When a subordinate legislation fails to comply with procedural requirements prescribed by
the parent Act or by a general law, it is known as procedural ultra vires. While framing rules,
byelaws,
regulations, etc., the parent Act or enabling statute may require the delegate to observe a
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prescribed procedure, such as, holding of consultations with particular bodies or interests,
publication of draft rules or bye-laws, laying them before Parliament, etc. It is incumbent on the
delegate to comply with these procedural requirements and to exercise the power in the manner
indicated by the Legislature.
Failure to comply with the requirement may invalidate the rules so framed. At the same
time, however, it is also to be noted that failure to observe the procedural requirements do not
necessarily and always invalidate the rules. This arises out of a distinction between mandatory
requirements and directory requirements. Generally, non-compliance with a directory provision
does not invalidate subordinate legislation, but failure to observe a mandatory and imperative
requirement does. <It is a well-settled rule that an absolute enactment must be obeyed or fulfilled
exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.=
Procedural Requirements:
1. Publication
2. Consultation
1. Publication:
Object:
It is a fundamental principle of law that 8ignorance of law is no excuse9 (ignorantia juris non
excusat). But there is also another equally established principle of law that the public must have
access to the law and they should be given an opportunity to know the law. The very justification
for that basic maxim is that the whole of our law, written or unwritten, is accessible to the public,
in the sense, of course, at any rate, its legal advisers have access to it, at any moment, as of right.
In case of an Act made by Parliament this poses little difficulty as it receives sufficient publicity
during the introduction of a Bill, printing, reference to a Select Committee and its report thereon,
reading before the House or Houses, discussion, voting, final approval of the Bill, radio and
newspaper reports thereon, etc. But this is not true in the case of delegated legislation.
Directory or Mandatory
In Harla v. State of Rajasthan, the legislation in question passed by Council was neither
published nor was it made known to the general public through any other means. The Supreme
Court, by applying principles of natural justice, held that its publication was necessary. Again, in
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Narendra Kumar v. Union of India, S. 3 of the Essential Commodities Act, 1955 required all the
rules to be made under the Act to be notified in the Official Gazette. The principles applied by
the
licensing authority for issuing permits for the acquisition of non-ferrous metal were not notified.
The Supreme Court held the rules ineffective.
Mode of publication:
A question may also arise about the mode, manner and method of publication. As a rule, a
distinction must be drawn between publication of delegated legislation and the mode, manner or
method of publication. Even if a requirement of publication is held to be mandatory, the mode or
manner of publication may be held to be directory and strict compliance thereof may not be
insisted upon.
Effect of publication: Once the delegated legislation is promulgated or published, it takes effect
from the date of such promulgation or publication.
Defect in publication: As already noticed, there is difference between publication of delegated
legislation and the mode of such publication. If delegated legislation is not published at all, the
defect goes to the root and makes the instrument non est, ineffective and of no consequence. But,
if it is not published in a particular manner, it would not necessarily make the instrument void.
Effect to publish in the manner provided by law would be considered by the court.
2. Consultation:
One of the techniques adopted by Legislature to control exercise of power by executive
against abuse of power is the process of consultation with affected interests before delegated
legislation or statutory instrument is prepared. It is indeed a visible safeguard against possible
misuse of power by the rule-making authority.
The term 8consult9 implies a conference of two or more persons or an impact of two or more
minds in respect of a topic in order to enable them to evolve a correct or, at least satisfactory
solution of a problem. It is a process which requires meeting of minds between the parties to
consultation on material facts to come to a right conclusion.
Object:
An important measure to check and control the exercise of legislative powers by the
executive is the technique of consultation through which affected interests may participate in the
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rule-making process. This modus operandi is regarded as a valuable safeguard against misuse of
legislative power by the executive authorities.
As Wade and Philips remark, <One way of avoiding a clash between department exercising
legislative powers and the interest most likely to be affected is to provide for some form of
consultation.=
This process of exchange of ideas is beneficial to both: to the affected interests itself insofar
as they have an opportunity to impress on the authority their point of view; and to the rule-
making
authority insofar as it can gather necessary information regarding the issues involved and thus be
in a better position to appreciate a particular situation. The Administration is not always the
repository of ultimate wisdom; it learns from the suggestions made by outsiders and often
benefits
from that advice. A consultative technique is useful in balancing individual interests and
administrative exigencies. The purpose is to allow interested parties to make useful comment and
not to allow them to assert their right to insist that the rule to take a particular form. It acts as an
important brake on administrative absolutism.
Nature and Scope
Consultation does not mean consent or concurrence. It, however, postulates full and
effective deliberation, exchange of mutual viewpoints, meeting or minds and examination of
relative merits of the other point of view. Consultation is not complete unless the parties thereto
make their respective viewpoints known to others and examine relative merits of their views.
Even when consultation is not a legal requirement, such a step generates greater confidence of
the
persons who may be affected by an action that may be taken by the authority.
Mandatory or Directory
No hard and fast rule of universal application can be laid down as to when a provision
relating to consultation should be held as mandatory and when it should be regarded as directory.
As held by the Supreme Court, in absence of the legislation making it plain what the
consequences of failure to observe the statutory requirement are, the court should decide the
question keeping in view the scope and purpose of the enactment, object sought to be secured by
such consultation, intention of making such provision, effect of the exercise of power upon the
rights of persons to be consulted, etc.
In New India Industrial Corporation Limited v. Union of India, AIR1980, consultation
interest infuses law-making process with democratic forms, particularly in what is called
bureaucratic legislation. Apart from this, it is an administrative necessity for effective and
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meaningful administration is impossible without imaginative administrative process. If the
citizens are to receive the advantage of any beneficent measures of the administration, the
administrative process should be such that the benefit reaches the citizens in full measure and
with
expedition. A Consultative technique is useful in balancing individual interest and administrative
exigencies the consultative process can be a salutary safeguard against improper use of power of
delegated legislation as it infuses democratic norms in bureaucratic legislation.
LEGISLATIVE CONTROL /PARLIAMENTARY CONTROL
It is the function of the Legislature to legislate, but if it seeks to give this power to the
executive because of some circumstances, it is not only the right of the Legislature, but also its
duty, as principal, to see how its agent (executive) carries out the agency entrusted to it. Since it
is
the legislature which delegates legislative power to the administration, it is primarily for it 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. Based on this theory, a whole
system of Legislative supervision over delegated legislation has come into in India.
It is off-course open to Parliament to confer legislative power upon anyone it likes but, if
the Parliament delegates legislative power to any authority example to Executive it must also
ensure that the powers are properly exercise by the administration and there is no misuse of
authority by the executive. Arvind Singh v. State of Punjab 1979 SCC, Krishna Iyer J. rightly
stated that parliamentary control over delegated legislation should be a living continuity as a
constitutional necessity.
Object of control: The underlying object of parliamentary control is to keep watch over the
rule making authorities and also to provide an opportunity to criticize them if there is abuse of
power on their part. This mechanism is described as "legislative Veto"
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 8close watch9 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 8political9 control in terms of policy, which Parliament may be able to exercise
efficiently. The fact is that due to broad delegation of Legislative powers and the generalized
standard of control also bold, judicial control has shrunk, raising the desirability and the
necessity
of parliamentary control.
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In US the control of the Congress over delegated legislation is highly limited because
neither is the technique of <laying= extensively used nor is there any Congressional Committee
to
scrutinize it. This is due to the Constitutional structure reservation in that country in which it is
considered only the duty of courts to review the legality of Administrative rulemaking. There is
even authority that is negative resolution technique so widely used in Britain would be
unconstitutional in an, American legislature.
In England due to the concept of parliamentary sovereignty, the control exercised by
Parliament over administrative rulemaking is very broad and effective. Parliamentary control
mechanism operates through laying techniques because under the provision of the English
Statutory Instruments Act 1946, all administrative rulemaking is subject to the control of
Parliament through the select committee on statutory instruments. Parliamentary control in
England is most effective because it is done in a non-political atmosphere and the three-line whip
does not come into operation.
In India parliamentary control of Administrative rulemaking is implicit as a normal
Constitutional function because the executive is responsible to Parliament.
Modes:
The legislative control can be effectively exercised by
1.Memorandum on Delegation
2.Laying procedure
"Direct general control
"Direct special control
3. Indirect Control / Scrutiny Committees
1. Memorandum on Delegation.
At the centre, the first step in the process of parliamentary control of delegated legislation is
taken at the stage of delegation. A rule of procedure of each house of parliament requires that bill
involving proposal for delegation of legislative power shall be <accompanied by a memorandum
explaining such proposals and drawing attention of their scope, and stating also whether they are
of exceptional or normal character=.
The rule is of an informational nature. The rule is celebratory so far as it goes, for the first
stage of supervision arises at the stage of delegation. The Lok Sabha committee on subordinate
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legislation has emphasized that the rule is mandatory and the memorandum attached to a bill
should give full report and effect of the delegation of power to subordinate authorities, the points
which may be covered in the rules, the particulars of subordinate authorities who are to exercise
the delegated power, and the manner in which such power is to be exercised, the purpose of the
memorandum is to focus the attention of the members of the Parliament to the provisions of the
bill involving delegation of legislative power.
The speaker may also refer bills containing provisions for delegation of legislative powers to
the committee to examine the extent of such power sought to be delegated.
2. Laying procedure
Direct but general control over delegated legislation is exercised
1. Through, debate on Act contains delegation: Members may discuss anything about delegation
including necessity, extent, type of delegation and the authority to whom power is delegated.
2. Through questions and notices: 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.
3.Through moving resolutions and notices in the house: Any member may move a resolution on
motion if the matter regarding delegation of power is urgent and immediate, and reply of the
government is unsatisfactory.
4. Through vote on grant: Whenever the budget demands of ministry are presented, any member
may propose a cut and thereby bring the exercise of rule-making power by that Ministry under
discussion.
5.Through a private Member's Bill seeking modification 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,
members may discuss delegation. However, these methods are rarely used.
Direct Special Control
This control mechanism is exercised through the technique of laying on the table of the
house rules and regulations framed by the administrative authority.
In US, the control of the Congress over the exercise of delegated legislation is feeble;
however, it does not mean that the technique of laying is no non-existent. The notable use of this
technique was made in the Reorganisation Act of 1939 to 1969, which authorise the President to
recognise the executive government by administrative rulemaking. The Acts of 1939 and 1945
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provided that the presidential organisation plans were not to have any effect for a specified
period
during which they could be honoured by the Congress through a concurrent resolution of both
the
houses. Classic annulment through this process has been the rejection by the Senate of President
Truman's plan to abrogate the provision of the Taft-Hartley Act, 1947 providing for a separation
of functions between the National Labour Relations Board and the independent office of General
Council.
In England the technique of laying is very extensively used because all the administrative
rule making is subject to the supervision of Parliament under the Statutory Instrument Act, 1946
which prescribes a time table the most common form of provision provides that the delegated
legislation comes into immediate effect, but is subject annulment by an adverse resolution of
either House. Other provisions for laying defer the operation of delegated legislation for a
specified period require affirmative resolution for the how is before the delegated legislation can
operate; allowed the delegated legislation to operate immediately, but require affirmative
resolution for subsequent continents in operation; postpone operation until approved by
affirmative resolution.
In India, Atlas Cycle Industries Ltd v. State of Haryana, 1979 SCC, the Supreme Court
noticed that there are three different link clauses which assume different forms depending on the
degree of control which the legislature may like to exercise namely as well as the select
committee on delegated legislation summarised the procedure under seven heads:
1. Laying without further procedures.
2. Laying subject to affirmative resolution.
3. Laying subject to negative resolution.
4. Laying in draft subject to negative resolution.
5. Laying in draft subject to an affirmative resolution.
6. Laying with deferred operation.
7. Laying with immediate effect but subject to annulment.
1.Laying with no further direction: In this type of playing, the rules and regulations come into
effect as soon as they are laid. It is simply to inform the house about the rules and regulation.
2. Laying subject to negative resolution: in this process the rule come into effect as soon as they
are placed on the table of the house, shall cease to have effect if negated by a resolution of the
house.
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3.laying subject to affirmative resolution: this technique may take two shapes:
a) that the rules shall have no effect or force unless approved by a resolution of each house of the
Parliament
b) that the rules shall cease to have effect unless approved by an affirmative resolution.
In these both processes, it is the duty of the government to move resolution.
4.laying in draft subject to negative resolution: such a provision provides that when any Act
contains provision for this type of Laying the draft rules shall be placed on the table of the house
and shall come into force after 40 days from the date of laying unless disapproved before that
period.
5. Laying in draft subject to an affirmative resolution: In this type of laying, the instruments or
draft rules shall have no effect unless approved by the house.
6.laying with deferred operation: the requirement of laying is linked with postponement of
operation of the rules and thus parliament gets more control.
7. laying with immediate effect but subject to annulment: here the rules come into force when
laid
before parliament, but cease to be in operation if disapproved by it within the specified period.
This is the most common form of Parliamentary control and is known as the negative procedure.
The earliest instance of the laying provision found in India is in the Immigration Act, 1922.
Between (1929 to 1939) only 3 Act made provision for laying, namely, the Insurance Act 1938,
Agriculture Product Act, 1938 and The Motor Vehicles Act, 1939 after a gap of 5 years, The
Central Excise Act and Salt Act, 1944 and the Aircraft Act, 1934 made provisions that the rules
framed there under must be laid on the table of the house. Only in a few Acts that is Insurance
Act, 1938 and Aircraft Act, 1944 provision was made for the laying subject to a negative
resolution. The negative resolution procedure differs from its counterpart in England as in India
it
includes the power of modification also. Three other Act, namely, Representation of The Peoples
Act, 1951; All India Services Act, 1951 and Indian Development and Regulation Act, 1951
contain only the right of modification of the rules and not annulment. The period during which
the
rules could be modified varies from 7 day to 1 month. It may be noted that in England this is a
uniform period of 40 days. The Indian Tariff Amendment Act, 1950 provides an illustration
where
rules are made subject to laying with affirmative resolution.
By the delegated legislation provisions (Amendment) Act, 1983, our Parliament has amended
50 Indian statutes and inserted provisions for laying before State legislature and Parliament
where
there were no much provisions and in other instances, provided for an annulment or modification
within a specified period.
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A typical clause read as follows. Every rule prescribed for sanctioned by the central
government under this Act shall be laid down as soon as maybe after it is prescribed or
sanctioned, before each house of the Parliament, while it is in session, for a total period of 30
days
within which may be comprised in one session or in two or more successive sessions, and if,
before the expiry of the session immediately following the session or the successive sessions
aforesaid, both houses agree in making any modification in the rule or both houses agree that the
rule should not have effect, the rule shall thereafter have effect only in such modified form or 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 anything previously done under that rule.
In the State of Uttar Pradesh, and identical provision is made applicable to rule making by
the U.P. Government under all the U.P and Central Acts by adopting a convenient method of
inserting it in the U.P. General Clauses Act, 1904, thus, making it a rule of uniform application
without having to add or amend the individual U.P. or Central Act.
In the absence of any general law in India regulating laying procedure, the scrutiny
committee made the following suggestions:
1) All Acts of Parliament should uniformly require that rules be laid on the table of the house "as
soon as possible".
2) The laying period should uniformly be 30 days from the date of final publication of rules.
3) The rule will be subject to such modification as the house may like to make.
The highlights of this formula are as follows:
1. This formula requires the rules to be laid down before each house of the Parliament as soon as
possible. There is no time-frame within which the rules are to be laid down before the house after
their promulgation.
2. The laying procedure envisaged by the above formula is laying with a negative resolution.
3. The rules are to be laid for 30 session days. This period maybe comprised in one session or in
two or more successive sessions.
4. Before the expiry of the session immediately following the session or the successive sessions
aforesaid, if both Houses agree, they can make any modification in the rules or even annul them.
5. The rules come into force as soon as they are made and the laying procedure takes effect
thereafter.
6. If any modification is made in the rules, or they are annulled, by the Houses then the rules
operate in the modified form or be of no effect, in the future.
7. If they are annulled then they will cease to exist from the date of annulment.
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8. The rules can be annulled or modified only when both houses agree.
9. In this formula, the initiative to move a resolution to annul or modify the rules has to be taken
by the members of the House. The government is under no obligation to make any initiative in
this regard.
10. In this 8laying9 formula, there is a no time frame within which the rules have to be laid
before
the houses after their promulgation. The phraseology used is "as soon as may be" after the rules
are made. In practice, often the rules are laid long after they are made. This reduces the
effectiveness of the parliamentary control over delegated legislation. The laying formula as
contained in the above provision is regarded as being of directory nature and not mandatory.
Failure to lay: Effects
In England, the position is not clear. In Bailey v. Williamson, 1873 8 QB, 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 Metalcraft 1954, Q B, 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) Limited v.
Union of India, 1958 AIR SC, the supreme court observed by way of obiter dicta that the
provision regarding laying was mandatory. But in Re Kerala Education Bill, AIR1958 SC, 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 rules as amended become
effective.
In 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 observed that though the rules
were
not laid before the legislature, they became a 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. 1975 SCC, the court held that the rules under
the parent Act came into force as soon as they were framed. Negating the contention that the
power of Legislature to annul or repeal rules subsequently could not be regarded as a sufficient
control over delegated legislation. Mathew J. observed "the dilution of parliamentary
watchdogging
the delegated legislation may be deplored but, in the compulsions and complexities of
modern life, cannot be helped".
Whatever are the consequences of failure to lay it is submitted that the correct answer is to
this question depends on the terms relating to a particular laying clause. If the provision relating
to
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laying is a condition precedent, the requirement of laying must be held to be mandatory and the
rules do not come into force until they are laid. In case of "negative Clause", however, the rules
come into operation immediately and the provision of laying is generally construed as directory.
INDIRECT CONTROL/ SCRUNITY COMMITTEES
Object: 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. And, therefore, with a view to
strengthening Parliamentary control over delegated legislation, Scrutiny Committees are
established. In India, there are two Scrutiny Committees:
1) the Lok Sabha Committee on Subordinate Legislation
2) the Rajya Sabha Committee on Subordinate Legislation
This control is exercised by Parliament through its committee. In 1950 the law minister
made a suggestion for the establishment of committee of the House on the pattern of the select
committee on Statutory Instruments, 1944 to examine delegated legislation and bring to the
notice
of the house weather administrative rulemaking has exceeded the intention of the Parliament or
has departed from it or has affected any fundamental norm for principal.
Such committee known as committee on subordinate legislation of Lok Sabha was
appointed on 1st December 1953 the committee consisted of 15 members nominated by the
speaker for a period of 1 year, the chairman is appointed by the speaker from amongst the
members. If the deputy speaker happens to be member then he shall act as chairman.
In England, the healthy tradition is that the leader of the opposition is always appointed as
chairman. The committee has the power to appoint subcommittees and refer any matter for its
concentration. It also has the power to compel the attendance of any person and to compel the
production of documents and records. The powers of the Indian committees are much wider than
its counterpart. In England, the committee can only ask government departments to send memos
or to depute a person to appear before it as witness.
According to rule 223 of Lok Sabha rules of procedure, the main function of the
committee shall be to examine the following:
1. Whether the rules are in accordance with the general object of the act.
2. Whether the rules contain any matter which could more properly be dealt with in the Act.
3. Whether it contains imposition of tax.
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4. Whether it directly or indirectly bars the jurisdiction of the court.
5. Whether it is retrospective.
6. Whether it involves expenditure from the consolidated fund.
7. Whether there has been any justifiable delay in the publication for laying.
8. Weather, for any reason, it requires further elucidation.
This committee has between 1953 and 1961 scrutinized about 5300 Orders and rules, and
has submitted 19 reports. There is also a similar committee of the Rajya Sabha which was
constituted in 1964. It discharges functions similar to the Lok Sabha committee. The committee
on subordinate legislation has made the following recommendations in order to streamline the
process of delegated legislation in India:
1. Power of Judicial review should not be taken away or curtailed by the rules.
2. A financial Levy or tax should not be imposed by rules.
3. Language of the rules should be simple and clear and not complicated or ambiguous.
4. Rules should not be given retrospective operation, unless such a power has been expressly
conferred by the parent Act, as they may prejudicially affect the vested rights of a person.
5. 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.
6. Sub delegation in very wide language is improper and some safeguards must be provided
before a delegate is allowed to sab delegate his authority to another functionary.
7. Discriminatory rules should not be framed by the administration.
8. Rules should not travel beyond the rule making power conferred by the parent Act.
9. They should not be in ordinate delay in making rules by the administration.
10. The defects pointed out to the administration should be declared as soon as possible.
11. The rules framed by the administration and required to be laid before the house by the parent
Act should be late before Parliament as soon as possible, and whenever there is inordinate delay,
an explanatory note giving the reasons for such delay should be appended to the rules so laid.
12. The final authority for interpretation of rules should not be with the administration.
13. Rules should contain short titles explanatory notes, references to earlier amendments for
convenience of location, ready references and proper understanding.
14. Sufficient publicity should be given to the statutory rules and orders.
In India parliamentary control of Administrative rulemaking is to be made a living
continuity as a constitutional necessity, it is necessary that the role of the committees of
Parliament must be strengthened, and a separate law like the statutory Instruments Act 1946,
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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 Administrative rulemaking
more effective.
OTHER CONTROLS
Over and above judicial and parliamentary controls, sometimes other controls and
safeguards are also provided. One such safeguard against the abuse of delegated power is to
properly and precisely limits the power of the delegate. Is the extent of power is not properly
defined in the parent Act and the language used is very broad, the executive authority may usurp
some powers of the Legislature and may be tempted into unjustified interference with the rights
of
the individual.
The court also should interpret the provisions of the rules and regulations in such a manner
as not to give blanket powers to the executive authority. But it has also been said that it is
inadvisable to depend on the good sense of the individuals, however High-placed they may be. It
is trite to say that individuals are and do become wise because they occupy the seats of power.
Good sense, circumspection and fairness does not go with the post. There is only a complacent
presumption that those who occupy High seats have a high sense of responsibility. The
presumption is neither legal nor rational. History does not support it and reality does not warrant
it. In particular, in a society pledged to uphold the rule of law, it would be both an advise and
impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and
easily be covered by the rule of law.
It is also argued that the delegation of power should be conferred only on trustworthy
authorities, example Central Government, State governments, accept as these authorities will
exercise the power conferred on them in a reasonable manner.
In Maneka Gandhi v. Union of India, 1978 Supreme Court has observed it is true that
when the order impounding a passport is made by the central government, there is no appeal
against it, but it must be remembered that in such a case the power is exercised by the central
government itself and it can safely be assumed that the central government will exercise the
power
in a reasonable and responsible manner. When power is vested in a high authority like the central
government, abuse of power cannot be lightly assumed.
In S.R. Bommai v. Union of India, 1994 SCC, dealing with the power of president to
proclaim emergency, it is necessary to retreat that the court must be conscious while examining
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the validity of the proclamation that it is a power vested India highest constitutional functionary
of
the nation. The court will not lightly presume abuse or misuse.
In collective exercise of power also there is no likelihood of abuse of power. In K. Ashok
Reddy v. Government of India, 1994 SCC an action of transfer of a judge of a High Court was
challenged the decision was based on collective exercise of power by the High Constitutional
functionaries on objective Criterion. Treating it as inbuilt safeguard on arbitrariness and bias, the
supreme court observed "we have no doubt that the Chief Justice of India acting on the
institutional advice available to him is the surest and the safest bet for preservation of the
independence of judiciary.
Certain Central Acts provide some additional safeguards also. They empower the State
Governments to frame rules, but prior approval of the Central Government is necessary, example
Section 17 of the Probation of Offenders Act, 1958. Some statutes empower the government to
frame rules subject to previous publication in the Official Gazettes example Section 29 of the
Minimum Wages Act, 1948. Sometimes, powers are conferred on the government to frame rules
for regulation only after consultation with the affected interest, example Section 59 of the Mines
Act, 1952.
Plenary powers of law-making are entrusted to elected representatives. But in reality, the
political government, instructed by the bureaucracy gets bills passed through either by the aid or
whip or by other methods. Thus, law making has remained, more or less, exclusive prerogative
of
a small cross-section of elites. It affects not only the quality of the law made by reinforces
centralised system of power. There must be, therefore be social auditing by public at large.
Constitutional legitimation of unlimited power of delegation to the executive by legislature may,
on critical occasions, be subversive of responsible Government and erosive of Democratic order.
The system of law-making, therefore needs careful and radical restructuring, if participative,
pluralistic government by the people is not to be jettisoned. As, Krishna Iyer J stated, "That
prompts us to hint at certain portents to our parliamentary system, not because they are likely
now
but because society may have to pay the price someday".
Power to make subordinate or ancillary legislation may undoubtedly be conferred upon a
delegate, but the legislature must be conferring that power disclose the policy of principles are
standards which are to govern the delegate in the exercise of that power so as to set out a
guideline. Any delegation which transgresses this limit infringes the constitutional scheme.