NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

PROJECT FOR

Indian administrative law: Emerging challenges

TOPIC

“Legislative control of delegated legislation: Comparative

study of UK, US and INDIA”

SUBMITTED TO: SUBMITTED BY:

PROF. SUSHMA SHARMA DEEPAK KANERIYA

2017 LLM 35

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 1. TABLE OF INDEX
S.N. NAME OF TOPIC P.N.

1 introduction 5

2 Various legislative control mechanism of delegated legislation 6-16

3 Control procedure in other jurisdictions 17-19

4 conclusion 20

5 Bibliography 21

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ACKNOWLEDGEMENT

I would like to thank my administrative law teacher, Dr. Sushma Sharma for allowing me to
make a project on such an interesting topic “legislative control of delegated legislation:
comparative study of UK, US, & INDIA I would also like to thank my friends for providing me
with their valuable inputs during the course of this project.

I am also thankful to my parents for their constant inspiration and moral support that kept me
going throughout the project.

DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this report has
been copied in any unauthorized manner and no part in it has been incorporated without due
acknowledgement. I take the full responsibility for any copyright claims that may arise out of
this seminar paper.

-DEEPAK KANERIYA

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 1. INTRODUCTION
Legislatures are entrusted with the function to legislate, but at times it seeks to give power to
legislate to executive in some circumstances. It’s the duty of legislatures to see how its agent I;e
executive carries out the agency entrusted to it. Since it’s the legislature which delegate
legislative power to administration its 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. Thus a whole system of legislative supervision over delegated legislations has
come into being in India.1

The control mechanism of administrative rule making comprises three components , namely
parliamentary control, procedural control and judicial control.

Today delegated legislation has become inevitable and has been come to be described as a
necessary evil. To quote the Committee on Subordinate Legislation ‘today the question is not
whether delegated legislation is desirable or not, but it is what controls and safeguards can be
introduced so that the power conferred is not misused or misapplied’ 2. Consequently, a number
of controlling mechanisms have been developed to keep a check over delegated legislation.

The controls have been introduced at two stages

I. At the source, i.e. at the time of delegation of power by the legislature.

II. Secondly, some safeguards have been provided at the stage of misuse or abuse of power
by the executive. The second category of safeguards can be described as post facto
safeguards as they come into play only once the executive has misused or abused the
power conferred upon it.

Legislative controls, overlap over both the category of controls as stated above. Some of the
legislative controls operate at the source while some of them come into play at a later stage.

The Preamble to the Constitution of India declares India to be a sovereign and republic nation.
As such, the country’s Legislature, i.e. the Parliament, is the supreme law making body and has
extraordinarily wide powers. Such wide powers bring with them tremendous responsibilities as

1
M.P.jain, parliamentary control of delegated legislation in india, 1964 public law, 33,152
2
Committee on Subordinate Legislation (First Lok Sabha), 3 rd Report, 1954, p. 16.

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well, and it is the duty of the Legislature to ensure that if it delegates its law making power upon
any authority, such authority does not misuse the delegated power. It is for the Legislature 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. As stated by the Supreme
Court in the case of Lohia Machines Ltd. v. Union of India3, as it is the Parliament which
delegates the legislative powers to the administration, the Parliament is required to keep a watch
over the rule-making authorities and to criticize them if there is abuse of power on their part.
Moreover, due to the broad delegation of legislative powers and generalized standard of control
also being broad, the judicial control has shrunk, raising the desirability and necessity of
parliamentary control4.

3
AIR 1985 SC 421, see also Avinder Singh v. State of Punjab AIR 1979 SC 321.
4
I.P.Massey, Administrative Law, 5th Ed., Eastern Book Company, 2001, p.100.

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 2. LEGISLATIVE CONTROL IS EXERCISED IN A NUMBER OF WAYS, VIZ. –
a) Direct general control
b) Direct special control
c) Indirect control

1) DIRECT GENERAL CONTROL

It means that placing of delegation proposal before the Legislature, Direct but general control
over delegated legislation is exercised:
a) Through debate on the act which contains delegation, members may discuss anything
about delegation including necessity, extent, type of delegation and the authority to
whom power is delegated.
b) Through questions and notice. Any member may ask questions on any aspect of
delegation of legislative powers if dissatisfied can give notice for discussion under rules
595 of the procedure and conduct of business in lok Sabha rules.
c) Through moving resolutions and notices in the house. Any members may move a
resolution on motion, if the matter regarding delegation of power is urgent and
immediate, and reply of the government is unsatisfactory,
d) Through vote or grant. Whenever the budget demands of a ministry are presented any
member may propose a cut and thereby bring the exercise of the rule making power by
that ministry under discussion;
e) Through a private members bill seeking modifications in the parent act or through a
debate at the time of discussions on the address by the president to the joint session of the
parliament, members may discuss delegation. However, these methods are rarely used.
f) Directions by Speaker- the Speaker may refer bills containing provisions for delegation
of legislative powers to the committee to examine the extent of powers sought to be
delegated.

5
Matters before tribunals, commissions, etc: No motion which seeks to raise discussion on a matter pending
before any statutory tribunal or statutory authority performing any judicial or quasi judicial functions or any
commission or court of enquiry appointed to enquire into, or investigate, any matter shall ordinarily be permitted to
be moved: Provided that the Speaker may while exercising discretion allow such matter being raised in the House as
is concerned with the procedure or subject or stage of enquiry if the Speaker is satisfied that it is not likely to
prejudice the consideration of such matter by the statutory tribunal, statutory authority, commission or court of
enquiry

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CRITICISM: However, this method has not proved to be very effective. Usually, the
memorandum does not provide sufficient information and is reduced to being a mere formality.
The Lok Sabha Committee on Subordinate Legislation had recommended for making the
memorandum more informative. The Committee had suggested that the memorandum describing
the proposal for delegated legislation should also state the effect of delegation, purpose of
delegation, the authorities empowered to exercise the power so delegated, the manner in which
the power is to be exercised, etc. But these recommendations have gone unnoticed and the
memorandum continues to be a lifeless document. Even otherwise, the memorandum is hardly
ever looked at with any degree of seriousness by a time-strapped Parliament. In a situation where
the Legislature doesn’t get the time to examine the provisions of the Bill it is passing, it is
doubtful that it would even be glancing at any memorandum attached to the Bill.

Additionally, in case of a strong executive, it can easily get the memorandum buried in the vast
mountain of papers presented to the Legislature and can therefore ensure that a Bill gets passed
without the memorandum ever seeing the light of the day. For these reasons, it is submitted that
this method of legislative control over delegated legislation is not very effective.

2) DIRECT SPECIAL CONTROL

The second link in the chain of legislative control comes into play after the rules are made. This
is achieved by the “laying procedure”. Supreme Court6 noticed that there are three different
laying clauses which assume different forms depending on the degree of control which the
legislature may likely to exercise namely:

i. Laying without further procedures

ii. Laying subject to negative resolution
iii. Laying subject to affirmative resolution

A British tradition, laying on the table is a procedure now followed in most Commonwealth
countries. It serves two purposes, firstly, it informs the Legislature as to what rules have been
framed by the executive in exercise of its powers of delegated legislation, and secondly, it
provides an opportunity to the legislators to question or challenge the rules already made or

6
Atlas cycle industries ltd v. state of Haryana, [1979] 2 SCC 196

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proposed to be made7. The requirement of laying of the rules before the houses indicates check
on excessive delegation.8 There is no general obligation in the administration to lay rules before
the house. Whether the rules made under a statute are to be laid before the houses or not depends
on the terms of each delegating statutes. Various mechanisms of laying procedures:

a. Laying with no further direction: in this type the laying the rules and regulation comes
into operation as soon as they laid. It is simply to inform the house about the rules the
regulation.
b. Procedure of laying of rules with the affirmative resolution which envisages that the
rules be laid before the legislature but to remain effective they must be approved by the
house.

c. Laying in the draft subject to negative resolution: such a provision provides that when
any act contains provisions for this type of laying the draft rules shall be placed on the
table of the house and shall be placed on the table of the house and shall come into
operation and force after forty day from the days of laying unless disapproved before
that period.

d. Laying without further provision for control – here the enabling Act merely provides
that the delegated legislation should be laid before the Legislature. The delegated
legislation becomes operative from the date it is laid before the Legislature and in some
cases even before it is so laid. This procedure is largely to inform the Legislature about
what rules have been framed by the administration under the powers delegated to it by
the Legislature and does not result in any effective control over the delegated legislation.

e. Laying with deferred operation – here the requirement of laying is linked with
postponement of operation of the rules. That is to say that the operation of the rules is
postponed with their laying before the Legislature. This way the Legislature gets more
control over the delegated legislation.

7
C.K.Takwani, Lectures on Administrative Law, 3rd Ed., Eastern Book Company, 1998, p.151.
8
DCM v. union of india, [1983] 4 SCC 166

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 f. Laying with immediate effect but subject to annulment – here the rules come into
force when they are laid before the Legislature but cease to be in operation if they are
disapproved by it within a specified period. This has been described as the most common
form of legislative control and is also known as the ‘negative resolution’ principle9.

g. Laying in draft but subject to resolution that no further proceedings be taken – here drafts
of the delegated legislation are required to be placed before the Legislature and the rules
are not to be made effective until a specified period expires. This is also a kind of
‘negative resolution’ procedure.

h. Laying with immediate effect but requiring affirmative resolution as a condition for
continuance – this form of laying is used where prompt operation of delegated legislation
is essential but strict parliamentary supervision is also necessary. The confirmatory
resolution keeps the delegated legislation alive, in the absence of which it would cease to
operate further. It is often applied in cases of taxation or to rules made during emergency.

This controlling mechanism simply requires that rules and regulations framed by the
administrative authorities be laid on the table before the Legislature. The laying procedure
enables the members of the Legislature to scrutinize the subordinate legislation and thereby to
exercise control over it. In India there is no general statutory provision requiring all the rules and
regulation to be laid before the Parliament instead the provision requiring laying of delegated
legislation would usually be found in the enabling or parent Act10. The earliest instance of the
laying provision found in India is in the Immigration Act, 192211. Similar provisions are also
found in various Acts.

It would be pertinent to mention here that the absence of a single legislation stipulating that all
delegated legislation be placed before the Legislature is keenly felt. There have been countless
instances where the enabling Act does not incorporate a provision for laying of the delegated
legislation and then later on the Act has been had to be amended. Thus, we have had the
Delegated Legislation Provision (Amendment) Act, 1983 which inserted laying provisions in 50

9
Supra, n.8.
10
Kailash Rai, Administrative Law, 2nd Edition, Allahabd Law Agency, 2000, p. 96.
11
Supra, n.6, p.103.

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Acts which did not contain such provisions originally. A similar Act was passed two years later
in 1985 which inserted such provisions in 91 Acts. It is submitted that a single central enactment
stipulating that all delegated legislation needs to be placed before the Legislature would
considerably sort out the present mess.

LEGAL CONSEQUENCES OF NON COMPLIANCE WITH THE LAYING

PROVISIONS

EFFECTS OF FAILURE TO LAY:

i. UNITED KINGDOM: long ago was realized that due to growth in delegated legislation
a systematic scheme for publication and reference is required. Accordingly, Rules
publication act, 1893 was enacted providing for publication of statutory rules and orders.
Thereafter, the statutory instrument act, 1946 was enacted which comes into force in
1948. Section 4 of the statutory instrument act provides that where an instrument must be
laid in parliament after being made, it must be in general be laid before it come to
operation. The copy of instrument is required to show the dates on which it was made,
laid, and come into operations respectively. In England, the legal consequences of non-
compliance with laying provisions are not clear. In Bailey v. Williamson12, the position of
laying was held to be directory. However, the condition has changed after passing of the
Statutory Instruments Act. 1946. It has been held that delegated legislation became valid
only after it was laid before parliament.
ii. INDIA, There has been some controversy over the effects of failure to lay a piece of
delegated legislation before the Legislature. Needless to say that the absence of any
central legislation on the matter has only amplified the confusion. Thus, while on the one
hand in Express Newspaper (P) Ltd. v. Union of India13, the Supreme Court held that the
provisions regarding laying were mandatory, on the other hand in Jan Mohd. v. State of
Gujarat14 and Papiah v. Excise Commissioner15 the Supreme Court refused to invalidate
rules made by the executive on the ground that they had not been laid before the
Legislature. In this situation it is submitted that the consequences of non-compliance with

12
(1873) QB 118
13
AIR 1958 SC 578.
14
AIR 1966 SC 385.
15
AIR 1975 SC 1007.

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 laying provisions depends on the provisions of the enabling or parent Act. If the
provisions of the enabling or parent Act are mandatory then non-compliance with them
would invalidate the delegated legislation16 and if the provisions were merely directory
then non-laying would not result in invalidation of the delegated legislation17. Whether or
not the laying provision is mandatory is determined by taking into account a variety of
factors like the language of the provision, the consequences of non-compliance with the
provisions and also the inconvenience or prejudice that would result to the general public
if the rules framed by the administration are declared invalid. Thus, while declaring the
laying provision to be declaratory in the Atlas Cycle Industries Ltd. v. State of
Haryana18, the Supreme Court gave weight to the following factors:

 it does not provide that the delegated legislation shall be subject to the negative or
affirmative resolution passed in either House of Parliament,
 it does not provide that the delegated legislation shall be subject to any modification or
amendment by either House of Parliament,
 it does not provide any penalty for non-compliance,
 it does not specify the period for which the delegated legislation is to be laid before both
the Houses of Parliament,
 the requirement of laying was not a condition precedent but a condition subsequent to the
making of the delegated legislation,
 the laying provision did not in any way prohibit the making of the delegated legislation
without the approval of the Parliament,
 the provision did not provide that it shall be open to the Parliament to approve or
disapprove the delegated legislation made under the concerned enabling statute.
Thus, it is reiterated that in India there is no concrete rule about whether the laying provisions are
mandatory or directory, instead it depends upon the facts and circumstances of each case. Indeed,
considering the loose wording of the majority of the laying provisions and the ruling of the

16
Hukum Chand v. Union of India AIR 1972 SC 2427.
17
Atlas Cycle Industries Ltd. v. State of Haryana AIR 1979 SC 1149.
18
Ibid.

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Supreme Court in the Atlas Cycles19 case, it is humbly submitted that in most cases the courts are
not likely to hold such provisions to be mandatory.

But a problem more significant than the one posed by this directory-mandatory debate remains
unanswered, viz. the problem of sub-delegated legislation. As per the current model, the
provisions requiring laying of delegated legislation fail to include within their ambit the sub-
delegated legislation. At present the laying provisions only call for the ‘rules’ framed under the
enabling Act to be laid before the Legislature. They do not require the ‘sub-rules’ to be so laid
also. This matter came before the Committee on Subordinate Legislation when the Textile
Commissioner issued an order under clause 14(b) 29 of the Cotton Control Order, 1955,
promulgated under section 3 of the Essential Commodities Act. The Committee considered
whether the Commissioner’s order should have been laid before the Parliament in view of
section 3(6) of the Act which required every order made by the Central Government or any other
authority or officer of the Central Government to be laid before both the Houses of Parliament.
The Government was of the view that the sub-order need not be laid as it was issued under the
Cotton Control Order and not under the Act. The Government further pointed out that there were
practical difficulties in laying of sub-orders before Parliament. The Committee accepted the
Government’s contentions and agreed to drop the suggestion regarding laying of sub-rules. Sub-
delegated legislation thus need not be laid before the Legislature and it is free from legislative
supervision. However, it must be noted that till now there has been no ruling of any High Court
or of the Supreme Court in this regard.

3) INDIRECT CONTROL

This control is exercised by parliament through its committee. In 1950, the law minister made a
suggestions for the establishment of a committee on the pattern of the select committee on
statutory instruments, 1944 to examine delegated legislation and bring to the notice of the house
whether the administrative rule making has exceeded the intention of the parliament or has
departed from it or has affected any fundamental norm or principles. Such a committee known as
the committee on the subordinate legislation of Lok Sabha was appointed in 1953.

I. PARLIAMENTARY COMMITTEE

19
Ibid.

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In India significant control over delegated legislation is exercised by the legislature through its
committees. The reason for this is that legislative control over delegated legislation would not be
much use, unless the rules were properly studied and scrutinized. Therefore with a view to
strengthen Parliamentary control over delegated legislation. Scrutiny committees were sought to
be established. As has been submitted earlier, the laying provisions are not mandatory in every
case and as such their force as a controlling mechanism is considerably reduced. In India we
have two scrutiny committees – the Lok Sabha Committee on Subordinate Legislation20, and the
Rajya Sabha Committee on Subordinate Legislation21. These committees have been given the
task of scrutinizing and reporting to the respective Houses of Parliament whether the powers to
make regulations, rules, sub-rules, bye-laws, etc., conferred by the Constitution or delegated by
the Parliament are being properly exercised within the ambit of such delegation.

The former was established in 1953, and the latter in 1964. With the institution of these
committees, parliamentary control of delegated legislation in India has become more effective.

Need for these committees has been felt because of the fact that mere laying of rules before a
house would not be of much efficacy unless some method is evolved to scrutinize the rule so
laid. With this objectives in view, the two houses in india have set up the committees on
subordinates legislation.22

CONSTITUTION OF COMMITTEES

a. The Lok Sabha committee consist 15 members, appointed by the speaker for a year; it
represents all the political parties in the house in proportions to their respective strength.
The chairman is usually a member of the oppositions, and ministers are debarred from the
committee membership.
b. The Rajya Sabha committee also consists of 15 members who are nominated by the
chairman of the Rajya Sabha. The chairman of the committee is also appointed by the
chairman of the house. There is no prohibition in a minister becoming a member of the
Rajya Sabha committee. The committee ids to hold office until a new committee is
nominated.

20
Lok Sabha Rules of Procedure and Conduct of Business, Rule 317.
21
Rajya Sabha Rules of Procedure and Conduct of Business, Rules 204-212.
22
The committee on subordinate legislation in India have been established on the model of the British committee.

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Generally, each committee is charged with the function of scrutinizing and reporting to the house
whether the power to make regulations, rules, etc., conferred by the constitution or delegated by
the parliament has been properly exercised within such delegation. Each committee is required to
scrutinize orders laid before the house and to consider the following in relation to each other.23

FUNCTIONS OF COMMITTEE’S

i. Whether the order is in accordance with the general objective of the constitution or the
act pursuant to which it is made,
ii. Whether it contains matters which in the opinion of the committee should more properly
be dealt with in an act of parliament;
iii. Whether it contains impositions of any taxes
iv. Whether it gives retrospective effect to any of the provisions in respect of which the
constitutions or the act does not expressly give any such power
v. Whether it directly or indirectly bars the jurisdictions of the court.
vi. Whether it involves expenditure from the consolidated funds of India or the public
revenues;
vii. Whether it appears to make some unusual or unexpected use of the powers conferred by
the constitutions or the act pursuant to which it is made;
viii. Whether there appears to have been unjustifiable delay in its publication or the laying of
it before parliament; and
ix. Whether for any reason its form or purport calls for any elucidation.

PROCEDURE PRESCRIBED FOR COMMITTEE:

a. Each committee places its reports before the respective house. The committee may also
bring to the notice of the house any other matter relating to the rules which it thinks
deserve the notice of the house. The committee may report, along with the grounds, its
view that rules may be annulled wholly or in parts or amended in any respect.
b. Each of the committee placed its report before the house. The committee may also bring
to the notice of the house any matters relating to the rules which it thinks deserve the

23
Rule 320 of the Lok Sabha rules.

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 notice of the house. The committee may report, along with the grounds, its view that the
rules be annulled wholly or in part or amended in any respect.
c. Committee may also bring if it deems necessary, and can also examine the ministry’s
concerned officials while considering the rules.
d. The reports of the committee are not discussed in the house but the government gives due
weight e to the views of the committee and seeks to implement the suggestions made
therein.
e. The reports of the committees are instructive in nature and also informative as they throw
a flood of light on the way of the institution of delegated legislations functions in India
f. The committees have constantly objected to the delays in laying rules before parliament
after they are made. They have insisted that the rules be laid before the houses as soon as
possible after they are made. It is one of the specific functions of the committees to take
notes of any justifiable delay in laying rules before parliament.
g. The usual statutory formula in India stipulates that the rules be laid “as soon as may be”
after they are made, but often the rules are laid after the lapse of a long time. Such a delay
reduces the efficacy of parliamentary control and, therefore, the committees have
emphasized that the govt. should take the first opportunity of placing the rules before the
house. From this point of view, the record of the departments has not been very good. 24
The main reason for the delay in laying rules before the house is the directory nature of
the laying formula and inadvertence on the part of ministries.

CRITICISM

A major criticism of the Scrutiny Committee is that the committee may not consider the merits
of any piece of delegated legislation (only whether the delegated legislation has been correctly
used) and has no power to alter any statutory instruments. As the scrutiny committees report has
no binding effect it can sometimes be seen as a waste of parliamentary time as well as the
committee’s time. The Hansard Society in their 1992 report found that some of the critical
findings of the committee were ignored by ministers, however despite this Elliott and Quinn
highlight “a[the scrutiny committee] makes an important contribution, and has been able to
secure changes to a number of important pieces of legislation”.

24
12th Lok sabha report [VI ], 1978

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Additionally, the Committees may bring to the notice of the respective Houses any other matter
which in their opinion should be noticed by the House. The Committees, described by Sir Cecil
Carr as ‘a vigorous and independent body’, have played a vital role in the development of the
system of delegated legislation in the country and the reports of the Committees provide a vital
insight into the functioning of the system of delegated legislation.

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 3. CONTROL PROCEDURE IN OTHER JURISDICTIONS

BRITAIN
In England due to the concept of parliamentary sovereignty, the control exercised by parliament
over administrative rule making is very broad and effective. Parliamentary control mechanism
operates through ‘laying’ technique because under the provisions of the statutory instrument act,
1946, all administrative rule making is subject to the control of parliament through select
committee on statutory instruments. Parliamentary control in England is most effective because
it is done in a non- political atmosphere and three line whips does not come into operation.

1. DONNOUGHMORE COMMITTEE REPORT:

The question of safeguards against misuse of delegated authority and its control has agitated the
minds of the legislators, judges, lawyers, and jurists not only in its country, but also in the United
Kingdom and others countries practicing parliamentary democracy. In the United Kingdom the
subject has been examined by at least two parliamentary committees:

i. Donnoughmore committee [the ministers powers committee, 1929]

ii. Select committee on delegated legislation, 1953

The Donnoughmore committee examined the question of the powers exercised by or under the
direction of the ministers by persons or bodies appointed by them by, way of delegated
legislation and the safeguards necessary to secure the principle of parliamentary supremacy and
rule of law.

FINDINGS OF THE COMMITTEE:

i. Delegation of legislative power was legitimate for certain purpose within certain limits,
and subject to certain safeguards.
ii. Practice of delegation of legislation in England had grown up unsystematically.
iii. Parliament had contributed to the abuse of the practice of delegation in no small
measures by paying insufficient attention to the importance of a clear and consistent
terminology.
iv. Whenever legislative power was delegated the limit of the delegated legislation should
clearly be defined in the statute by which the delegation was effected.

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 v. Parliament should be careful to preserve the jurisdictions of the courts and therefore, the
powers should not be delegated to bar any access to the courts.
vi. Parliament shouldn’t confer with any immunity on the delegated legislation from its
being challenged and reviewed in the court of law on the grounds of vires.

2. THE STATUTORY INSTRUMENT ACT, 1946

On the basis of recommendations of the Donnoughmore committee the British
parliament passed the statutory instrument act, 1946. The act repealed the rules
publication act, and made provisions which dealt with the manner and procedure
required to be followed in making a “statutory instrument”. Such statutory instrument
includes a document by which her majesty-in-council, a minister or any other designated
authority makes the rules, regulations or other acts of subordinate legislative character.
The act provides for numbering, printing, publication, and citation of the statutory
instruments and their laying before parliament.
The committee on statutory instruments consists of certain members of the House of
Commons. It combines the ordinary member’s vigilance with the assistance rendered by
an independent expert, the counsel to Mr. Speaker.

Thus In the UK, much delegated legislation takes the form of ‘statutory instruments’. There is a
drafting manual, and annual volumes of statutory instruments are published. The parent act may
give either house the power to disallow a statutory instrument, but there is reluctance in the
Lords to press matters to a division. There is no formal procedure in the House of Commons for
scrutiny of bills to see that any delegated power is necessary and appropriately defined and
controlled, but the House of Lords set up a committee to deal with these matters in 1994. Quasi-
legislation and sub-delegation are virtually uncontrolled, and control of Henry VIII clauses is
patchy. There are something like fifteen acts a year which delegate power to the government to
amend acts of parliament, and it is not uncommon for the government to be permitted to exercise
the power without an affirmative resolution of the parliament.

UNITED STATES OF AMERICA

In the USA, 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

18 | P a g e
scrutinize it. This is due to the constitutional structurisation in that country in which it is
considered only the duty of courts to review the legality of administrative rule making. There is
even authority that the negative resolution technique so widely used in Britain would be
unconstitutional in an American experience.

DIRECT SPECIAL CONTROL:

In the USA the control of the of the congress over the exercise of delegated legislation is feeble;
however it, does not mean that the techniques of ‘laying’ is nonexistent. The notable use of this
technique was made in the reorganization act of 1939 to 1969; which authorized the president to
reorganize the executive government by administrative rule making. The act of 1939 and 1945
provided that the presidential organization plans were not to have any effect for specified periods
during which they could be annulled by the congress through a concurrent resolution of both
houses. A classis annulment through this process has been the rejection by the senate of
President Truman’s plan to abrogate the provisions of the Taft- Hartle act, 1947 providing for
separation of functions between the national labour relations board and the independent office of
general council.25 In six states like Connecticut, Kansan, Michigan, Nebraska, Virginia and
Wisconsin provisions exist for the annulment of administrative rules either by concurrent
resolution of two houses or by resolution of one.

25
Schwartz: legislative control of administrative rules and regulation : the American experience , 30 NYUL rev.
1036.

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 4. CONCLUSION

In the democratic system of governance, legislature is vested with the function to legislate and
executive is required to implement or say execute the same. Nonetheless it is not only the right
but also the obligation of the legislature as the principal to see and keep check over the function
of the executive. Since the legislature which grants legislative power to the administration, it is
its primary responsibility to ensure proper exercise of delegated legislation and to control and
supervise the actual exercise of this power. Thus ensuring that objectionable and abuse exercise
of administrative power shouldn’t take place. Parliament while delegating the power for ensuring
efficient administration mechanism requires the subordinate legislation to be laid in the
parliament. When the proposed legislation lay before the parliament it’s required that a
resolution can be moved to repealing and amending the concerned statutory instrument. The
members of parliament may criticize the legislation when parliament grants money to the
executive.

The question may arise as to the consequences of the failure of laying of legislation. In that case
if the provision related to the laying are mandatory in nature then failure to perform the same the
rule cant come into force without laying it in the parliament.

However if the laying is not mandatory but only directory in nature in that case it comes into
operation merely after passing of the concerned legislation.

Parliament control over delegated legislation should be a living continuity as a constitutional

necessity notwithstanding excessive parliamentary control over the delegated legislation
frustrates the basic object of delegating law making power.

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 5. BIBLIOGRAPHY

1) David Scott and Alexandra Felix, “Principles of Administrative Law”,

Cavendish Publishing Ltd., 1997.
2) I.P. Massey, “Administrative Law”, 5th Ed., Eastern Book Company, 2001.
3) Kailash Rai, “Administrative Law” 2nd Ed., Allahabad Law Agency, 2000.
4) P.P. Craig, “Administrative Law”, 2nd Ed., Sweet & Maxwell, 1996.
5) S.P. Sathe, “Administrative Law”, 6th Ed., Butterworths, 1999.
6) M.C. jain kagzi, “ The indian administrative law” seventh edition 2014
7) Legislative Control of Administrative Rulemaking: Lessons from the British
Experience, Jack Beatson ,Cornell International Law Journal Volume 12,Issue
2 Summer 1979

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