Administrative Law

Unit -II
Topic
Control Mechanism of Delegated Legislation
 Control Mechanism of Delegated
Legislation
Parliamentary Control

Judicial Control

Procedural Control
 Parliamentary Control

 Parliamentary control over delegated legislation should be

a living continuity as a constitutional necessity. Avinder
Singh v. State of Punjab , AIR 1979 SC 321.

 Comparative Discourses

 United States of America- It is limited

 United Kingdom – Broad and effective
 Parliamentary Control
India

In India parliamentary control of administrative rule

–making is implicit as a normal constitutional
function because the executive is responsible to
Parliament.
 Parliamentary Control

Direct Control

• General Control
• Special Control

Indirect Control
 Parliamentary Control
Direct General Control

 Debate and discussion

 Questions and notices

 Resolutions

 Vote on grant

 Private member Bill

 Parliamentary Control
Direct Special Control
 Laying with no further direction

 Laying Subject to negative resolution

 Laying Subject to affirmative resolution

 Laying in draft subject to negative resolution

 Laying in draft subject to an affirmative resolution.

 Parliamentary Control
Case Study
Interpretation of the word ‘Shall’ in section 3(6) of the Essentials
Commodities Act, 1955.

Every order by the Central Government or its officer or

authority “Shall be laid before both houses of Parliament as soon
as may be after it is made”.

Whether the provision is directory or mandatory?

The court held that the provision is directory and therefore, if the
laying is not done, it would not affect the validity of the rules.
Atlas cycles Industries Ltd. v. State of Haryana , AIR1979 SC1149.
 Parliamentary Control
Indirect Control
 This control is exercised by Parliament through its
Committees.

 The Committee on Subordinate Legislation – it is a

House committee and functions separately for each house
of the Parliament.
 Parliamentary Control
Functions of the Committee

 Whether the rules are in accordance with the general

object of the Act.
 Whether the rules contain any matter which could
more properly be dealt with in the Act.
 Whether it contains imposition of tax.
 Whether it directly or indirectly bars the jurisdiction
of the court.
 Parliamentary Control
Functions of the Committee
 Whether it is retrospective.

 Whether it involves the expenditure from the

Consolidated fund.

 Whether there has been unjustified delay in its

publication or laying.

 Whether , for any reason, it requires further elucidation.

 Judicial Control
A subordinate legislation could not enjoy the same
degree of immunity as a legislative Act would. State of
kerela v. Unni, (2007) 2 SCC 365.

Ground of invalidity
1. That the enabling Act is ultra vires the Constitution.
2. That the administrative legislation is ultra vires the
Constitution.
3. That the administrative legislation is ultra vires the
enabling Act.
 Judicial Control
Case Study
Rule 7, framed under the authority of section 33 (1) of the Bombay
Police Act, 1951 which provides that no public meeting will be held
without the previous permission of the Commissioner of Police.

Whether the rule puts unreasonable restriction on the exercise of

freedom of speech and expression , because it provides arbitrary
powers in the hands of the commissioner of police to grant or refuse
to grant the permission. There is no guidelines for the exercise of the
powers. Himmat Lal K Shah v. Commissioner of Police ,AIR 1973
SC 87.
It was held that, it amounts to infringement of Article 19(1)(a) as it
does not satisfy the test laid down in Article 19(2).
 Procedural Control
Components of Procedural Control Mechanism –

1. Drafting
2. Antenatal publicity
3. Consultation
4. Post –natal publicity

It aims at effective people participation for better

social communication, acceptance and effectivity of
the rules.
 Points to Remember
 Administrative rule making nowadays is increased day by day on
account of increased functions of the government. Since, law making as per
the constitutional mandate belongs to the legislature, but for above reasons, it
is inevitable for administrative agencies to frame laws. Therefore, it requires
effective control mechanism.

 There are three types of control mechanism , first is parliamentary

control, which is further categorized into direct and indirect control. Direct
control is again of two types, direct general control and direct special control.

 In direct general control, control is exercised by debate and discussion in

the House by the members. Members may put notice, move resolutions and
suggest amendments , recommendations and also bring private members
Bills.
 Points to Remember
 In direct special control , the Parliament exercises the control
through the technique of laying. As soon as rules are framed by the
executive, it is required to be laid down before the Houses of the
Parliament , either for information, or approval. The House may
approved it or disapproved it depending upon the provisions of the
parent Act.

 In Indirect control, the committee on subordinate legislation of

each House of the Parliament scrutinize the provisions of the Act, the
rules framed therein and recommend, whether the rules are in
accordance with the object and purpose of the Act or not, whether the
rules are in accordance with the provisions of the Constitution of
India or not and accordingly suggest the House for necessary action.
 Points to Remember
 Judicial control is another control mechanism, where the courts
exercises the control over the delegated legislation. The courts,
particularly the Supreme court and High Courts examines the
contents of subordinate legislation to find out whether they are in
accordance with the provisions of the Constitution or enabling Act
or not. The courts also scrutinize , the provisions of enabling Act,
whether the Act qualifies the test of Constitution or not.

 In procedural control, the purpose is to have peoples’

participation in the law making process. It involves the following
stages- Drafting, Antenatal publicity, consultation, post-natal
publicity.