CONTROLS OF DELEGATED LEGISLATION

• Delegated legislation is allowing bodies below the parliament to pass their own legislation. It
is often described as that which proceeds from any authority other than the sovereign power
and is, therefore, dependent for its continued existence and validity on some superior or
supreme authority. This dependence can often take the form of checks and controls, namely,
parliamentary or legislative control; procedural control and judicial control. 
• There are a numerous critical reasons why it is necessary to have control over delegated
legislation . Taking into account that delegated legislation is made by elected representatives,
individuals have the aptitude to pass delegated legislation. Without control, there would be
many absurd laws .
• Delegated legislation is often criticized as an excuse for the legislators, a shield for the
administrators and a provocation for the Constitutional purists. However, the very mechanism
of delegated legislation cannot and should not be reduced to an evil because it is at the end of
the day a necessity.
 REASONS FOR CONTROL
 In the modern world where social, economic, technological, and administrative
speed outstrips the placid traditional legislative processes, delegated legislation is
an essential means of survival. Thus, since it is the legislature which delegates
power, it is primarily for it to supervise and control the exercise of this power, and
ensure against its objectionable, abusive & unwarranted use.
 Sub-delegation is a problem with delegated legislation, as the creation of the
legislation is delegated further, such as by a government minister, who was
originally given the power to make delegated legislation by the enabling act, to
civil servants within the department.
 This means power is taken even further from those elected and continues to make
delegated legislation appear undemocratic and in need of strict controls.
 Another point to consider is that delegated legislation is generally made privately,
rather than being debated as parliamentary legislation is, and thus, although the
enabling act may require some public consultation, delegated legislation could be
seen as much less open and publicised than statutes. Also, although delegated
legislation is published, the vast quantities produced and complex wording mean
delegated legislation is criticised for being difficult for people to fully understand,
and therefore may not be very open to public scrutiny or involvement in its creation.
 The main reason that controls over delegated legislation are necessary is because it
is not created by Parliament, and often not even those given the responsibility by
Parliament, but is further sub-delegated. This means that the public are not able to
elect those making legislation, as they are with Parliament, and thus those making
delegated legislation are not accountable to the people, so delegated legislation can
seem undemocratic and a particular problem if it is used for more important
policies, and not simply administrative rules.
 TYPES OF CONTROL
There are three types of control on the Delegated Legislation-

(A) Parliamentary Control

(B) Legislative Control

(C) Judicial Control

 PARLIAMENTARY CONTROL

The underlying object of this control is to keep a watch over the rule-making
authorities and to provide an opportunity to criticize them if there is an abuse of power
on their part.

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.

Parliament has control in that the enabling or parent Act passed by Parliament sets out
the framework or parameters within which delegated legislation is made. In India, the
question of control on rule-making power engaged the attention of the Parliament.
Every delegate is subject to the authority and control of the principal and the exercise
of delegated power can always be directed, corrected or cancelled by the principal.
Hence parliamentary control over delegated legislation should be a living continuity
as a constitutional remedy. The fact is that due to the broad delegation of legislative
powers and the generalised standard of control also being broad, judicial control has
shrunk, raising the desirability and the necessity of parliamentary control.

In a parliamentary democracy it is the function of the legislature to legislate. If it

seeks to delegate its legislative power to the executive because of some reasons, it is
not only the right of the Legislature, but also its obligation, as principal, to see how its
agent i.e. the Executive carries out the agency entrusted to it. Since it is the legislature
which grants legislative power to the administration, it is primarily its responsibility to
ensure the proper exercise of delegated legislative power, to supervise and control the
actual exercise of this power, and ensure the danger of its objectionable, abusive and
unwarranted use by the administration.
In India parliamentary control of administrative rule-making is implicit as a normal
constitutional function because the executive is responsible to the Parliament.
There are three types of control exercised:

1. Direct but general control over delegated legislation is exercised-

(a) Through the 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 notices. Any member can 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.
(c) 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.
2. Laying on Table-
In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of
the Legislature is followed. It serves two purposes: firstly, it helps in informing the
legislature as to what all rules have been made by the executive authorities in exercise
of delegated legislation, secondly, it provides a forum to the legislators to question or
challenge the rules made or proposed to be made.

Laying with immediate effect but subject to annulment-

Here the rules and regulations come into operation as soon as they are laid before the
Parliament. However, they cease to operate when disapproved by the Parliament.
In this process the rules come into effect as soon as they are laid before the
Parliament, but shall cease to have effect if annulled by a resolution of the House.
This technique takes two forms: firstly, that the rules shall have no effect or force
unless approved by a resolution of each House of Parliament, secondly, that the rules
shall cease to have effect unless approved by an affirmative 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 forty days from the date of laying unless disapproved before that period.
In this type of laying the instruments or draft rules shall have no effect unless
approved by the House.
In India, there is no statutory provision requiring ‘laying of’ of all delegated
legislation. In the absence of any general law in India regulating laying
procedure, the Scrutiny Committee made the following suggestions:
(i) All Acts of Parliament should uniformly require that rules be laid on the table of
the House ‘as soon as possible’.
(ii) The laying period should uniformly be thirty days from the date of final
publication of rules; and
(iii) The rule will be subject to such modifications as the House may like to make.
3. Scrutiny Committees- Indirect control is exercised by Parliament through its
Committees. With a view to strengthen Parliamentary control over delegated
legislation, Scrutiny Committees were established. In UK and India, there are
Standing Committees of Parliament to scrutinise delegated legislation. In the USA, on
the other hand, there is no equivalent to such committees, the responsibility being
diffused.
The responsibility is shared but a host of committees – standing committees in each
House of Congress, committees on government operation in each house, and some
other joint bodies like the committee on atomic energy.
In England, the Select Committee on Statutory Instruments was established by the
House of Commons in 1944. In 1950, the Law Minister made a suggestion for the
establishment of a 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 whether administrative rule-making has exceeded the intention of the
Parliament or has departed from it or has affected any fundamental principle.
Such a committee known as the Committee on Subordinate Legislation of Lok
Sabha was appointed on December 1, 1953.
The main functions of the Committee are to examine:
(i) whether the rules are in accordance with the general object of the Act,
(ii) whether the rules contain any matter which could more properly be dealt
with in the Act,
(iii) whether it is retrospective,
(iv) whether it directly or indirectly bars the jurisdiction of the court, and
questions alike. The Committee has between 1953 and 1961, scrutinized
about 5300 orders and rules 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
recommendation in order to streamline the process of delegated legislation in
India.
(i) Power of judicial review should not be taken away or curtailed by rules.
(ii) A financial levy or tax should not be imposed by rules.
(iii) Language of the rules should be simple and clear and not complicated or
ambiguous.
(iv) 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.
(v) Sub-delegation in very wide language is improper and some safeguards must be
provided before a delegate is allowed to sub-delegate his authority to another
functionary.
(vi) Discriminatory rules should not be framed by the administration.
(vii) Rules should not travel beyond the rule-making power conferred by the parent Act.
(viii) There should not be inordinate delay in making of rules by the administration.
(ix) The final authority of interpretation of rules should not be with the administration.
(x) Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has proved to be a
fairly effective body in properly examining and effectively improving upon delegated
legislation in India. Sir Cecil Carr aptly remarks: “It is evidently a vigorous and
independent body.” Therefore, legislature exercises its control over the delegated
legislation or the rule-making power by these two methods: namely, ‘laying’ procedure
and via Scrutiny committees.
 REASONS FOR FAILURE OF PARLIAMENTARY
CONTROL
(i) The Parliament has neither time nor expertise to control the administration which
has grown in volume as well as complexity.
(ii) The legislative leadership lies with the executive and it plays a significant role in
formulating policies.
(iii) The very size of the Parliament is too large and unmanageable to be effective.
(iv) The majority support enjoyed by the executive in the Parliament reduces the
possibility of effective criticism.
(v) The growth of delegated legislation reduced the role of Parliament in making
detailed laws and increased the powers of bureaucracy.
(vi) Parliament’s control is sporadic, general and mostly political in nature.
(vii) Lack of strong and steady opposition in the Parliament have also contributed to
the ineffectiveness of legislative control over administration in India.
(viii) There is no automatic machinery for the effective scrutiny on behalf of the
Parliament as a whole; and the quantity and complexity are such that it is no longer
possible to rely on such scrutiny. 

In India parliamentary control over delegated legislation is to be made a living

continuity, it is necessary that the role of the committees of the Parliament must be
strengthened and a separate law like the Statutory Instruments Act, 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 delegated
legislation more effective. Besides this other measures should be taken to strengthen
the control of Parliament over delegated legislation.
 JUDICIAL CONTROL
The Indian Constitution has established a Welfare State which mandates that the State
shall legislate on innumerable activities touching human lives in order to promote the
‘maximum happiness of the maximum number of people’.

Consequently the State has to undertake legislation on a variety of subjects. In view

of this increasing legislative activity, the legislatures will not find adequate time to
legislate on every minute details and limit themselves to ‘policy matters and leaving a
large volume of area to executives to frame rules to carry out the purposes of
legislation.

Thus, the need for delegation became indispensable and it was sought to be justified
on grounds of ‘speed’, flexibility and adoptability’. The application of law to
changing circumstances was made feasible through the instruments of ‘rules’ framed
by the executive.
Pre-constitutional control to post-constitutional judicial control found a big shift from
the scrutiny of delegated legislation confined to the area of sub-delegation from
British Parliament to Indian legislature and laying down a fundamental principle of
delegation in the post-constitutional era which can be stated as follows:-
“Legislatures cannot delegate their essential legislative powers. Essential legislative
powers relate to the determination of the policy of the legislature and of rendering
that policy into a binding rule of conduct”.

Judicial control over delegated legislature can be exercised at the following two

levels:-
1. Delegation may be challenged as unconstitutional; or
2. That the Statutory power has been improperly exercised.
The delegation can be challenged in the courts of law as being unconstitutional,
excessive or arbitrary.
The scope of permissible delegation is fairly wide. Within the wide limits, delegation
is sustained it does not otherwise; infringe the provisions of the Constitution. The
limitations imposed by the ap­plication of the rule of ultra vires are quite clear. If the
Act of the Legislature under which power is delegated, is ultra vires, the power of
the legislature in the delegation can never be good.
No delegated legislation can be inconsistent with the provisions of the Fundamental
Rights. If the Act violates any Fundamental Rights the rules, regula­tions and bye-
laws framed there under cannot be better.
Where the Act is good, still the rules and regulations may con­travene any
Fundamental Right and have to be struck down.
Besides the constitutional attack, the delegated legislation may also be challenged as
being ultra vires the powers of the administra­tive body framing the rules and
regulations. 
The validity of the rules may be assailed as the stage in two ways:—
(i) That they run counter to the provisions of the Act; and
(ii) That they have been made in excess of the authority delegated by the Legislature.
The method under these sub-heads for the application of the rule of ultra vires is
described as the method of substantive ultra vires.
Here the substance of rules and regulations is gone into and not the procedural
requirements of the rule marking that may be prescribed in the statute. The latter is
looked into under the procedural ultra vires rule.
When the Court applies the method of substantive ultra vires rule, it examines the
contents of the rules and regulations without probing into the policy and wisdom of the
subject matter. It merely sees if the rules and regulations in their pith and substance are
within the import of the language and policy of the statute. The rules ob­viously cannot
go against the intent of statute and cannot be inconsis­tent with the provisions of the
Act. They are framed for giving effect to the provisions of this Act and not for
nullifying their effect and they should not be in excess of the authority delegated to the
rule­making body.
Delegated legislation should not be characterised with an excessive exercise of
discretion by the authority. The rules cannot be attacked to the general plea of
unreasonableness like the bye-laws framed by a local body. Reasonableness of the
rules can be examined only when it is necessary to do so for purpose of Articles 14 and
19 of the Constitution.
The rule of procedural ultra vires provides with a very limited method of judicial
control of delegated legislation
Often there are specific saving clauses barring the jurisdiction of the courts to question
the validity of rules and orders. For example, Section 16 of the Defence of India Act,
1939 lay down as follows:
“16 Saving as to orders- (1) No order made in exercise of any power conferred by or
under this Act shall be called in question in any Court.
(2) Where an order purports to have been made and signed by any power conferred by
or under this Act, a Court shall, within the meaning of Indian Evidence Act, 1872,
presume that such order was so made by that authority.”
 PROCEDURAL CONTROL
Executive legislating under delegated legislation is ordinarily free from rigid procedural
requirements unless the legislature makes it mandatory for the executive to abide by a
certain procedure.  This is because rigid procedural requirements may turn out to too
time consuming and cumbersome and they may defeat the very purpose of delegated
legislation.    However, communication in one form or other to the general public still
remains indispensable for the law to be legally valid and binding.
 Hence procedural control means certain procedures which are laid down in the parent
Act which have to be followed by the authorities while making the rules.  Delegated
legislation may be challenged on the ground that it has been in accordance with the
procedure prescribed by the enabling Act.  However, rules become invalid on the
ground of non-compliance with prescribed procedure only if such procedure is
mandatory.  
Non compliance with the directory provisions does not render them invalid.  It
becomes a case of procedural alternatives.   One has to see whether the procedure is
mandatory or directory.
Procedural control  mechanism operates in three components:

(i) Pre-publication and consultation with an expert body  or approval of an authority.

(ii) Publication of delegated legislation.

(iii) Laying of the rules before the legislature.

This procedural control mechanism may be either mandatory or directory. For the
purpose of mandatory or directory control mechanisms few important parameters should
be taken into account as laid down in the case of Raza Buland Sugar Co. v. Rampur
Municipal Council (AIR 1965 SC 895)-

(a) Scheme of Act

(b) Intention of legislature i.e. whether treated mandatory or directory
(c) language in which the provision is drafted
(d) Serious inconvenience being caused to the public at large, these were four
parameters laid down in case.  
(1) Consultation and Pre-publication- The “modus-operandi” is  regarded as a
valuable safeguard against the misuse of legislative power by the executive
authorities.  

The effect of the term previous publication according to S.23 of General Clause Act,
1897is that:
(i) The rules should be published in draft form in Gazette.
(ii) Objections and suggestions be invited by a specific date mentioned there in, and
(iii) Those objection and suggestions be considered by rule-making authority.

In India, a provision of prior consultation, if contained in the enabling Act is

considered sometimes as mandatory and sometime as directory.  In issue like
environment, this requirement is considered as mandatory in nature.
The provisions for prior consultation may take various forms:

(a) Official consultation: The central govt.  is required to make rules U/s 52 of the
Banking Companies Act, after consulting the Reserve Bank  of India.
(b) Consolation with statutory bodies: Incharge of a particular subject.
(c) Consultation with Administrative boards.
(d) Consultation with affected persons:  Municipalities, before tax imposition have
to publish draft rules in a Hindi daily and consult the inhabitants of the area.  Under the
industries development and regulations act, representations from the industry and
public are invited.
(e) Draft Rules and Affected interest: Under Indian Mines Act, Sec.61 empowers
owner of a time to frame or to draft rules themselves for safety etc. n mines and submit
them to inspector of mines.  Such rule become operative on being approved by the
government.
(2) Publication- It is a fundamental principal of law “ignorantia jris non excusat”
(ignorance of law is no excuse) but there is also another equally established principle
of law that the public must have the access to the law and they should be given an
opportunity to know the law.  All laws ought either to be known or at least laid open
offend against them under pretence of ignorance.  It is essential that adequate means
are adopted to publicize the rules so that people are not caught on the wrong foot, in
ignorance of the rules applicable to them in a given situation.”
Thus, in Harla v. State of Rajasthan (AIR 1951 SC 467) the council by resolution
enacted the Jaipur opium Act which made rule that if a person carried opinion
beyond  a certain limit then it was an offence committed and penalty had to be
imposed on the accused & act was never published.  One Harla was prosecuted for
the contravention of this law because he was in possession of opium in more
quantity than permitted.  
He contended that it was a case of procedural ultravires.  Holding that the law was
not enforceable the Supreme Court observed. “promulgation or publication of some
sort is essential other wise it would be against principles of natural justice to punish
the subject under a law of which they had no knowledge and of which they could not
even with the exercise of reasonable diligence be said to have acquired any
knowledge.”

In Narendra Kumar v.s U.O.I. (AIR 1960 SC 430) Sec.3  of Essential
commodities Act, 1955 required all the rules to be made under the Act to be notified
in official gazette.  The principles applied by licensing authority for issuing permits
for the acquisition of non-ferrous metals were not notified.   The S.C. held the rules
ineffective because the mode of publication i.e. in Official Gazette was held to be
mandatory.