JAMIA MILLIA ISLAMIA

Faculty of law

Project

Parliamentary Control over Delegated Legislation

Administrative Law

Submitted to: Bhavna Sharma

Submitted by: Dilshad Ahmed

BA.LLB (Regular) 6th Semester

Batch: 2019 – 2020

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Acknowledgements
At the outset, I would like to express my heartfelt gratitude and thank my mentor, Prof. Bhavna
Sharma, for instilling confidence in me and entrusting the task to carry out a project on the topic
Parliamentary Control over Delegated Legislation. I am indeed privileged having being groomed
in a prestigious institution like Jamia Millia Islamia, New Delhi. I would also like to express my
gratitude to my friends for their support and help. My gratitude also goes out to the staff and
administration of Jamia Millia Islamia, New Delhi for the library infrastructure that was a source
of great help for the completion of this project.

Dilshad Ahmed

BA.LLB (Hons.)

Semester VIth

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 Table of Content

1. List of Cases 4
2. Introduction 5
3. Object of Parliamentary Control 8
4. Forms of Parliamentary Control over Delegated Legislation 8
4.1. Direct General Control
9
4.2. Direct Special Control
9
4.2.1. Legal Consequence of Non-compliance with Laying Provision 11
4.3. Indirect Control
12
5. Recommendations by the Committee on Subordinated Legislation 13
6. Effectiveness of Parliamentary Control over Delegated Legislation 14
6.1. In Indian
14
6.2. In U.S.A
15
6.3. In England
15
7. Control Mechanism of Parliamentary Control over Delegated Legislation 15
7.1. Normal Delegation
15
7.2. Exceptional Delegation
15
8. Conclusion 17
9. References 18

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List of Cases

 Agricultural Market Committee v. Shalimar Chemical Works

 Avinder Singh v. State of Punjab
 Lohia Machines Ltd. v. Union of India
 R v. Sheer Metalcraft
 Narendra Kumar v. Union of India
 Jan Mohammad v. State of Gujarat
 W.B. State Electricity Board v. Desh Bandhu Gosh
 Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly

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Introduction

With the growth of the administrative process in the 20th century, administrative rule-making or
delegated legislation has assumed tremendous proportion and importance. Today the bulk of law
which governs people comes not from legislature but from the chamber of administrators. The
fact is that the direct legislation of parliament is not complete, unless it is read with the help of
rules and regulations framed thereunder; otherwise by itself it become misleading. In the present
day context of free market economy, there has been a tremendous growth of administrative and
regulatory forces which has made outsourcing of law making power to the administrative
authorities a compulsive necessity. Therefore legislature limits down its functions to merely
laying down policies and guideline of the law, outsourcing all the ancillary law making power to
the administrative authorities to make law relevant to the need of the people.

The term “Delegated Legislation” is difficult to define. However if defined in simple way,
delegated legislation refers to all law making which takes place outside the legislature and is
generally expressed as rules, regulations, bye-laws, orders, schemes, directions or notifications,
etc. In other words, when an instrument of legislative is made by an authority in exercise of
power delegated or conferred by legislature, it is called subordinate legislation or delegated
legislation.1 Salmond defines delegated legislation 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”2. The term delegated legislation may be used in
two senses: 1) the exercise of law-making power by the administrative authority delegated to it

1
Halsbury’s Law of England, Vol. 44 (4th Edition.) 981-84.
2
Salmond, Jurisprudence (12th Edition.) 116.

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by the legislature; 2) the actual exercise of law-making power itself in the forms of rule and
regulations, etc.3

The delegated legislation is not a new phenomenon. Ever since the statutes came to be made by
parliament, delegated legislation also came to be made by an authority to which the power was
delegated by Parliament. Going back into history one can find the Statutes of Proclamation, 1539
under which Henry VIII was given extensive power to legislate by proclamations. This proves
the fact that there was and will always be need for delegated legislation. The exigencies of the
modern state, specially social and economic reforms, has given rise to delegated legislation on a
large scale, so much so that a reasonable fear arises among the people that they are being ruled
by bureaucracy.4 The Indian Parliament enacted from the period 1973 to 1977 a total no of 302
laws; as against this the total number of statutory orders and rules passed in the same period was
approximately 25,414. Corresponding figures for the States and Union Territories are not
available, but the number of rules issued under the delegated powers may be astronomical. 5 The
modern trend is that the parliament passed only a skeletal legislation. A classical example may
be the Import and Export (Control) Act 1947which contains only eight sections to provide
through the rule-making power delegated to it under legislation and delegates the whole power to
the administrative agencies to regulate the whole complex mechanism of imports and exports.

Thus, Delegated legislation has been defined by the Committee on Minister's powers "as the
exercise of minor legislative power by subordinate authorities and bodies in pursuance of
authority given by parliament itself. Such delegation of legislative power has become inevitable
in modern industrialised society and due to changed concept of a welfare State. A century ago, in
the laissez-faire state, the function of the government was chiefly protective and regulatory. It
was to prevent violence and fraud, to maintain security and integrity of the State from outside
aggression and to enforce contracts. It also performed some functions relating to the care of the
poor, education, communications, coinage and a few other social Projects. It was not expected to
do anything beyond these. In other words, the State acted for the most part as soldier, policeman,
and judge. On such basis, it was the function of the legislature to lay down general guiding
3
Jain and Jain, Principles of Administrative Law (1986), 26.
4
Agricultural Market Committee v. Shalimar Chemical Works, (1997) 5 SCC 516.
5
Statement from the working paper presented by Prof. Upendra Baxi, quoted in Avinder Singh v. State of Punjab,
(1979) I SCC 137, 160 : AIR 1979 SC 321.

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principles, and of the executive to see that they were put into effect and to work out the specific
and local details. The position is totally different in the Public Service State of the twentieth
century. The welfare activities of the state have assumed enormous proportions and the
machinery of the state has developed into a gigantic organization carrying practically every
aspect of man's life. A State of this type cannot be governed by the same methods as the liberal
state. A tremendous expansion governmental activity is inevitable, it is not possible for the
legislator from his lofty position to direct this giant machine effectively. To a great extent, the
constructive initiative has to pass from the parliament to the government offices and a series of
semiautonomous boards and commissions. In terms of law this trend manifests itself in numerous
acts of legislative authorization in all democracies. This power of rule-making in conferred on
Ministers, Public servants and important governmental agencies under statutory authority. This
rule-making power is also known as administrative legislation or subordinate legislation, because
this legislation is strictly subordinate to the terms of the statute under which it is made. It has
been rightly said that one has to find out a middle course between two conflicting principles; one
permitting very wide powers of delegation for practical reasons while the other that no new
legislative bodies should be set up by transferring essential legislative functions to administrative
authorities. Delegated legislation has become inevitable but the question of control has become
crucial.

It is of course open to parliament to confer legislative power upon anyone it likes, including the
captain of an English cricket team, or to the author of administrative law. But if Parliament
delegates legislative powers to any other authority e.g. to the executive it must also ensure that
those powers are properly exercised by the administration and there is no misuse of authority by
the executive. Krishna Iyer J6 rightly stated that parliamentary control over delegated legislation
should be a living continuity as a constitutional necessity.

As to the control of the legislature over delegated legislation, Jain and Jain7 state:

“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
6
Avinder Singh v. State of Punjab, (1979)1 SCG 137: AIR 1979 SC 321
7
Principles of Administrative Law (2007) 175.

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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 against
the danger of its objectionable, abusive and unwarranted use by the administration.”

The Parliament or the Legislature provide a number of safeguards to secure the proper exercise
of the power by the delegate. The control is done in two ways:

 Control at the time of passing of the parent act.

 Control when legislature scrutinizes the delegated legislation.

Object of Parliamentary 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. 8 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 “close
watch” 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 and political control in terms of policy, which
parliament may be able to exercise efficiently.

Forms of Parliamentary Control over Delegated Legislation

1. Direct General Control :

Direct but general control over delegated legislation is exercised

i. 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;
ii. 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;

8
Lohia Machines Ltd. V. Union of India, (1985) 1 SCC 197, para.26: AIR 1985 SC 421

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 iii. 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;
iv. Through vote on grant. Whenever the budget demands of a ministry are presented,
any Member may propose a cut and thereby bring the exercise of rule-making power
by that ministry under discussion;
v. Through a private Member’s Bill seeking modifications 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.
2. 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.
The notable use of this technique was made in the Reorganization Acts of 1939 to 1969,
which authorised the President to reorganise the executive government by administrative
rule-making. 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
Instruments Act, 1946 which prescribes timetable. The most common form of provision
provides that the delegated legislation comes into immediate effect but is subject to
annulment by an adverse resolution of either house.
By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is
required to be laid before Parliament after being made, a copy shall be laid before each
House before the legislation comes into operation. However, if it is essential that it
should come into operation before the copies are laid, it may so operate but notification
shall be sent to the Lord Chancellor and the Speaker of the House of Commons
explaining why the copies were not laid beforehand. Under Section 6 of the Statutory
Instruments Act, 1946, the draft of any statutory instrument should be laid before the
parliament.9

Laying on Table:

9
Administrative Law, I P Massey, Eastern Book Company, reprinted 2018, pg. 113-114.

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 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.

Object of Laying:
In almost all the Commonwealth countries, the procedure of “Laying on the Table” of the
legislature is followed. It serves two purposes; first, it informs the legislature as to what
rules have been made by the executive authorities in exercise of delegated legislative
power; and second it provides an opportunity to the legislators to question or challenge
the rules already made or proposed to be made. Through this “safety-valve” the
legislature exercises supervision, check and control over executive rule-making power.
“Laying technique” brings legislature into close and constant contact with the
administration.
Types of Laying The Select Committee on delegated Legislation summarised the laying
procedure under following heads10:
1. Laying without further provision for control
In this type of laying the rules and regulations come into effect as soon as they are
laid. It is simply to inform the House about the rules and regulations.
2. 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.
3. Laying subject to negative resolution
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.
4. Laying subject to affirmative resolution
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.

10
Delegated Legislation in India, ILI, 1964, p. 166-169.

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 5. 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 forty days from the date of laying unless disapproved before that period.
6. Laying in draft subject to affirmative resolution
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:
 All Acts of Parliament should uniformly require that rules be laid on the table
of the House ‘as soon as possible’.
 The laying period should uniformly be thirty days from the date of final
publication of rules; and
 The rule will be subject to such modifications as the House may like to
make11.
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 30 days from the date of final publication
of rules.
iii. The rule will be subject to such modification as the House may like to make.12

Legal Consequences of Non-Compliance with the Laying Provisions

In England, the provisions of Section 4(2) of the Statutory Instruments Act, 1946 makes the
laying provision mandatory for the validation of statutory instruments 13. In India, however, the
consequences of non-compliance with the laying provisions depend on whether the provisions in

11
C.K. Thakker, Administrative Law, Eastern Book Company, 1992, p. 152.
12
Ibid.
13
R v. Sheer Metalcraft, (1954) 1 All ER 542.

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the enabling Act are mandatory or directory. In Narendra Kumar v. Union of India 14, the
Supreme Court held that the provisions of Section 3(5) of the Essential Commodities Act, 1955,
which provided that the rules framed under the Act must be laid before both Houses of
Parliament, are mandatory, and therefore Clause 4 of the Non-Ferrous Control Order, 1958 has
no effect unless laid before Parliament. However, in Jan Mohammad v. State of Gujarat 15, the
court deviated from its previous stand. Section 26(5) of the Bombay Agricultural Produce
Markets Act, 1939 contained a laying provision but the rules framed under the Act could not be
laid before the Provincial legislature in its first session as there was then no functioning
legislature because of World War II emergency. The rules were placed during the second
session. Court held that the rules remained valid because the legislature did not provide that the
non-laying at its first session would make the rules invalid. Even if the requirement of laying is
only directory and not mandatory, the rules framed by the administrative authority without
conforming to the requirement of laying would not be permissible if the mode of rule-making
has been violated.

3. Indirect Control :

This form of control is exercised by the Parliament through its Committees. With a view to
strengthen Parliamentary control over delegated legislation, Scrutiny Committees were
established16. 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

14
AIR (1960) SC 430
15
AIR (1966) SC 385
16
Treatise on administrative law, 1996, Vol. I, P. 136

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any fundamental principle. Such a committee known as the Committee on Subordinate
Legislation of Lok Sabha was appointed on December 1, 1953.17

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.18

There is also a similar Committee of the Rajya Sabha which was constituted in 1964. It
discharges functions similar to the Lok Sabha Committee.

Recommendations by the Committee on Subordinated Legislation

The Committee on Subordinate Legislation has made the following recommendation in order to
streamline the process of delegated legislation in India19.

 Power of judicial review should not be taken away or curtailed by rules.

 A financial levy or tax should not be imposed by rules.
 Language of the rules should be simple and clear and not complicated or ambiguous.
 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.
 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.
 Discriminatory rules should not be framed by the administration.
 Rules should not travel beyond the rule-making power conferred by the parent Act.

17
Ibid.
18
Ibid.
19
Ibid.

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  There should not be inordinate delay in making of rules by the administration.
 The final authority of interpretation of rules should not be with the administration.
 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 body20.”

Effectiveness of Parliamentary Control over Delegated Legislation

In India

The legislative control over administration in parliamentary countries like India is more
theoretical than practical. In reality, the control is not that effective as it ought to be. The
following factors are responsible for the ineffectiveness of parliamentary control over delegated
legisplation in India21 :

 The Parliament has neither time nor expertise to control the administration which has
grown in volume as well as complexity.
 The legislative leadership lies with the executive and it plays a significant role in
formulating policies.
 The very size of the Parliament is too large and unmanageable to be effective.
 The majority support enjoyed by the executive in the Parliament reduces the possibility
of effective criticism.
 The growth of delegated legislation reduced the role of Parliament in making detailed
laws and increased the powers of bureaucracy.
 Parliament’s control is sporadic, general and mostly political in nature.
 Lack of strong and steady opposition in the Parliament have also contributed to the
ineffectiveness of legislative control over administration in India.

20
Parliamentary Control of Delegated Legislation, Public Law, 1956, p. 200.
21
Laxmikanth, Public Administration, Tata MC-Graw-Hill Education, p. 212, available on
http://books.google.co.in/books?
id=9JcCVqJ14gC&dq=is+parliamentary+control+over+delegated+legislation+effective&s ource=gbs_navlinks_s
(Last accessed on 11 April, 2020)

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  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 U.S.A

In U.S.A, 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
scrutinise it.

In England

In England the technique of laying is very extensively used because the administrative delegation
is subject to the supervision of the parliament under the Statutory Instruments Act, 1946, which
prescribes a timetable. The most common form of provision provides that the delegated
legislation comes into immediate effect but is subject to annulment by an adverse resolution of
either House22.

Control Mechanism of Parliamentary Control over Delegated Legislation

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
parliament control over delegated legislation should be living continuity as a constitutional
necessity. The fact is that due to the broad delegation of legislative powers and the generalized
standard control also being broad, the judicial control has shrunk, raising the desirability and the
necessity of parliamentary control.

In India the parliamentary control of delegated legislation is implicit as a normal constitutional

function because the executive is responsible to the parliament.

Legislation is an inherent and inalienable right of Parliament and it has to be seen that this power
is not usurped nor transgressed under the guise of what is called subordinate legislation. It can
control the following:

1. Normal Delegation
22
Ibid.

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  Positive: where the limits of delegation are clearly defined in the enabling Act.
 Negative: It does not include power to do certain thing.
2. Exceptional Delegation
 Power to legislate on matters of principle (policy).
 Power is amend Act of parliament (In re Delhi laws Acts ).

W.B. State Electricity Board v. Desh Bandhu Gosh23 it was held that Regulation 34 of the West
Bengal State Electricity Regulation which had authorized the Board to terminate the Service of
any permanent employer on three months’ notice or pay in lieu thereof. This hire & fire rules of
regulation 34 is parallel to Henry VIII clause.

Similar position was held by the court in the case of Central Inland Water Transport
Corporation Limited v. Brojo Nath Ganguly 24 wherein rule 9 of the service rules of the CIWTC
conferred power to terminate on similar lines as in the case of West Bengal State Electricity
Board & Ors v. Desh Bandhu Ghosh & Ors 25 the court went on to say that no description of
Rule 9(i) can be given than to call it "the Henry VIII clause". It confers absolute and arbitrary
power upon the Corporation and therefore invalid.

23
(1958) 3 SCC 116.
24
AIR (1986) SC 1571.
25
(1985) AIR 722, 1985 SCR (2) 1014

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Conclusion

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.

The Parliament while delegating the legislative powers often requires that the subordinate
legislation be laid before the Parliament, When the delegated legislation is brought before the
Parliament, it is discussed there and if it is found that proper use has not been made of delegated
authority, a resolution may be moved for repealing or amending the statutory instrument
concerned. The members of the Parliament may criticize the delegated legislation when the
Parliament grants money to the executive.

What are the consequences of failure to lay? It is submitted that the correct answer to this
question depends on the terms relating to a particular laying clause. If the provision relating to
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.
Parliamentary control over delegated legislation should be a living continuity as a constitutional
necessity, but excessive parliamentary control frustrates the basic object of delegating law
making power to the administration to make for economic use of parliamentary time. Strategies
of parliamentary control over administrative rule making may be discussed in the backdrop of
the above observation.

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References :

 Takwani C.K. Lectures on Administrative Law. Eastern Book Company, Lucknow.

 Massey I.P., Administrative Law, Ninth Edn., (Eastern Book Company) (2018).
 M.P. Jain & S.N. Jain, Principles of Administrative law, (2017)
 Thakker C.K., Administrative Law, Eastern Book Company, (1992)

Websites :

 www.manupatra.com
 www.ssrn.com
 www.legalservice.com
 www.lawnotes.in
 http://books.google.co.in/books
 www.shareyouressays.com
 www.lawteacher.net

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