Control of Delegated Legislation

Control and safeguards should be exercised so that advantage could be

available , while the dangers and risks of abuse inherent in it may ne
minimized.
The question today is not whether there should be delegated legislation, but
subject to what safeguards it should be resorted to.
Such Control operate at two level:
First: at the point of delegation of power by the legislature; the question here
is, how much power should the legislature be permitted to delegate?
Second: at the point of exercise of delegated power by the administration; the
question here being subject to what restraints and safeguards should the
delegate function in exercising the delegated powers?
It is the control at the second level i.e the supervision over DL rather than over
delegating legislation that is more important.
• The control mechanism of delegated legislation comprises of
parliamentary control, procedural control (consultation, publication
etc.) and judicial control. The main thrust of such control is to ensure
that the limits of delegation are precisely defined , the delegated
power is properly exercised and the delegated legislation is adequately
published.
 (A) Parliamentary Control
• 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.
• U.S.A- the control of Congress over delegated legislation is highly limited, as it is
considered only the duty of courts to review the legality of delegation.
• U.K- the parliamentary control over DL is very broad and effective, as the technique of
‘laying’ is very extensively used and as it is done in a non-political atmosphere and the
three-line whip does not come into operation.
• India- the parliamentary control is implicit as a normal constitutional function because
the executive is responsible to parliamentary.
• There are three major types of parliamentary control in India:-
• (1)- Direct general Control- it is exercised through debate, questions, and notices,
moving resolutions, etc., by which the necessity, extent and type of delegation all
these matters are scrutinized by MPs.
• (2)-Direct Special Control- it is exercised through the technique of ‘laying’ on the
table of the house rules and regulations, framed by administration. (Ex. Atlas Case)
• There is another parliamentary control which is exercised at the stage of delegation.
A rule of procedure of each House of parliament requires that a bill involving
proposal for delegation shall be accompanied by a memorandum explaining such
proposals and drawing attention to their scope and stating also whether they are of
exceptional or normal character. But, in practice, the memoranda are usually
scrappy, of a routine nature and not very informative.
• ‘laying’ comes into play after the rules are made, and it takes three major forms:-
• (a) Simple laying (laying without further procedure or direction) in this type , the
rules and regulations come into effect as soon as they are laid. It is simply to
inform the house about rules. It is hardly used.
• (b) Laying Subject to negative resolution- in this type the rules have immediate
operative effect (as soon as laid on table of house), but they are subject to
annulment (by a resolution of house) within 40 days. This is by far the commonest
form of laying. It acts mostly as a deterrent and sometimes forces a minister to
‘buy-off opposition’ by proposing some modification(thus, negative resolution
procedures differs from its counterpart in U.K., as in India it includes the power of
modification also)
• (c) Laying Subject to affirmative resolution – in this type, the rules
shall have no effect or force unless approved by a resolution of each
house of Parliament. This procedure necessitates a debate in every
case, thus one object of delegation (viz. saving the time of Parliament)
is to some extent defeated. Normally, no time limit is fixed for
obtaining approval- none is necessary because the government will
naturally take the earliest opportunity of bringing it up for approval-
but sec. 16(3) of the House (Financial and Miscellaneous Provisions)
Act, 1946 did impose a limit of forty days.
• Thus this procedure is sparingly used and is reserved to cases where
the order almost amounts to an Act by affecting changes which
approximate to true legislation.
 Legal Consequences of Non-compliance with laying provisions

• In India, there is no general obligation on the administration to lay the

rules before the houses. The consequences of non- compliance with
the laying provision depend on whether the provisions in the enabling
act are mandatory or directory. This issue was discussed in detail in
Atlas Cycle’s case.
 Atlas Cycle Industries Ltd. v. State of Haryana
(AIR 1979 SC 1149)
• The question whether the direction to lay rules before Parliament is
mandatory or merely directory and whether laying is a condition
precedent to their operation or may be neglected without prejudice to the
effect of the rules are answered by saying that ‘each case must depend on
its own circumstances or the wording of the statute under which the rules
are made’.
• The SC held that the impugned provision of law which provided that every
order by the Central Government or its officer or authority ‘shall be laid
before both houses as soon as may be after it is made’ as merely directory
and did not make ‘laying’ a condition precedent to the making of the order.
• According to the court, the word ‘shall’ in sec. 3(6) of the Essential
Commodities Act, 1955 is not conclusive and decisive of the matter; and
the court is to determine the ‘true intention’ of the legislature which is
the determining factor , and that must be done by looking carefully to
the whole scope, nature and design of the statute.
• The court observed: the policy and object underlying the provisions
relating to laying the delegated legislation made by the subordinate law
making authorities or orders passed by subordinate executive
instrumentalities before both houses of Parliament being to keep
supervision and control over the aforesaid authorities and
instrumentalities, the “laying clauses” assume different terms depending
on the degree of control which the legislature may like to exercise.
• Jan Mohmd. v state of Gujarat (AIR 1966 SC 385), the Bombay
Agriculture Produce Markets Act contained a laying provision, but the
rules framed under the Act could not be laid before the legislature in its
first session, but however placed in its second session. The court held
that rules remained valid because the legislature did not provide that
the non-laying at its first session (there was no functioning legislature
because of world war II) would make the rules invalid.
• D.K. Kishnan’s case (AIR 1956 A.P. 129), the court observed that where
statute make the laying of rules a condition precedent or the resolution
of the Parliament a condition precedent, there is no difficulty, as in
former case, the rule has no legal force till the condition precedent is
complied with and in latter case, it ceases to have force from the date
of non- compliance with the condition subsequent. But, in case of a
statute directing rules to be laid without any condition attached , the
rule is only directory.
• In Mathura Prasad Yadav (1974 MPLJ 373), the court observed that laying
subject to affirmative resolution is mandatory, while laying subject to
negative resolution is directory.
• In the instant case, the court observed that there are two considerations
for regarding a provision as directory- (1) absence of any provision for
meeting the contingency of the provision not being complied with; and (2)
serious general inconvenience and prejudice that would result to general
public if the act of government is declared invalid for non- compliance
with the particular.
• Sec. 3(6) provides for simple laying in which parliament has no power
either to approve or disapprove the order. It does not provide that it shall
be subject to the negative or the affirmative resolution by either house of
Parliament.
• It does not even specify the period for which the order is to be laid
before both houses not does it provide any penalty for non-compliance
with the direction as to the laying of the order before both houses. It
would also be noticed that the requirement as to the laying of the
order before both houses of Parliament is not a condition precedent
but subsequent to the making of order. In other words, there is no
prohibition to the making of the orders without the approval of both
houses of Parliament. Therefore, simple laying is merely directory, and
non-laying would not make the order void.
• The word ‘shall’ in sec. 3(6) of the Essential Commodities Act, 1955 is
mere directory and does not make ‘laying’ a condition precedent to
the making of the order.
 (3)- Indirect Control
• This control is exercised by Parliament through its committees. The
functions of the committee shall be to examine-
• Whether rules are in accordance with the general object of Act
• Whether the rules contain any matter which could more properly be
dealt with in the act.
• Whether it contains imposition in tax.
• Whether it directly or indirectly bars the jurisdiction of Court.
• Whether there has been unjustified delay in its publication or laying.
 (B)- Procedural Control
• Procedural control like publication, consultation, etc. besides
providing effective vigil, can guarantee effective people participation
for better social communication, acceptance and effectivity of the
rules. Procedural control mechanism allows specific audit of rules by
those for whose consumption they are made.
 Govind Lal v AGR. P.M. committee
(AIR 1976 SC 263)
• The question in this case was whether the notification issued under Sec.
6(5) of Gujarat Agricultural Produce Markets Act, 1964, covering
additional varieties of agriculture produce (like ginger and onion), must
not only be published in official Gazette but also be published in Gujarati
in a newspaper.
• The relevant provision of the said Act was, ‘ a notification under this
section (i.e sec 6) shall also be published in Gujarati in a newspaper having
circulation in the said area”.
• It was contended that the requirement regarding the publication in
Gujarati is directory and not mandatory, despite the use of word ‘shall’;
that word really means ‘may’.
• Several tests have been propounded in decided cases for determining
the question whether a provision in a statute, or a rule is mandatory
or directory. No universal rule can be laid down on this matter. In
each case one must look to the subject matter and consider the
importance of the provision disregarded and the relation of that
provision to the general object intended to be secured.
• The notification issued under sec. 6(5) of the Act, besides official
Gazette, must also be published in Gujarati in a newspaper having
circulation in the particular area. This requirement is mandatory and
must be fulfilled.
• Decision- “some rules,” as said in Thakur Pratap Singh v Shri Krishna
(AIR 1956 SC 140) “are vital and go to the root of the matter: they
cannot be broken.” The words of the statute here must therefore be
followed punctiliously. The notification issued under sec. 6(5) as not
published in newspaper at all, much less in Gujarati, is invalid.
• Further , failure to publish in a gazette can’t be cured by a clause
making such defect of irregularity in an Act non- challengeable.
 Sonik Industries, Rajkot v Municipal Corporation, Rajkot
(AIR 1986 SC 1518)

• In this case, the rules for the levy of a rate on building/lands were held to be
‘published’ under sec.77 of the Bombay Municipal Boroughs Act, 1925 when
the notice published in a newspaper reciting the sanction of the state
government to the rules mentions that rules themselves are open to inspection
in the municipal office and that copies of the rules can also be purchased there.
• The mandatory requirement of sec.77 was that rules should be published and
the notice satisfies that requirement. The mode of publishing the rules is a
matter for directory or substantial compliance. It is sufficient if it is reasonably
possible for persons affected by the rules to obtain, with fair diligence,
knowledge of those rules through the mode specified in the notice. Had the
Act itself specified the mode in which the rules were to be published, that
mode would have to be adopted for publishing the rules. But the Act is silent as
to this