This article has been written by Harsimran Kaur, a 4th-year law student from New Law College, BVDU (Pune).
The legislature reflects the will of its people and acts as a custodian of the interests of its community. It exercises control over the administration to hold it accountable and responsible for its activities.
However, the system of legislative control over the government in a parliamentary form of government differs from such control in a presidential form of government.
Parliamentary control of delegated legislation is also called a control mechanism for administrative rule-making in India. It has three components:-
Parliamentary Control or Legislative Control.
Procedural Control or Administrative or Executive Control.
Parliamentary or Legislative Control
In India, “Parliamentary Control” is a constitutional function because the executive is responsible to the legislature at two stages of control i.e Initial stage and Indirect stage.
Initial stage: In this stage, it is to decide about how much power is required to be delegated for completing a particular task. It is also observed if the delegation of power is valid or not.
Direct control (General): Direct but general control over the delegated legislation is exercised. The debate on the Act which contains delegation, through questions and notices, or through a vote on grants. It is also exercised via moving resolutions & notices in the Houses, or when a private member’s bill is seeking modification in the parent Act or through a debate.
Direct Special Control: Direct Special Control is exercised through a technique of “Laying” on the table of the House; on the rules and regulations framed by the administrative authority.
Forms of Laying
Laying with no further direction
Rules & regulations come into effect as soon as they are laid.
It is simply to inform the house about the rules & regulations.
Laying subject to negative resolution
Rules & regulations come into effect as soon as they are placed on the table of the House but shall cease to have effect if annulled by a resolution of the House.
Laying subject to affirmative resolution
This technique may take two forms:
Rules shall have no effect or force unless approved by the resolution of each house.
Rules shall cease to have effect unless approved by affirmative resolutions.
Procedural control or Administrative or Executive control
A procedural control is meant to be done under instructions. That is, under Parent Act certain guidelines are given which need to be followed to determine whether it is mandatory or directory to follow it or not. It includes three components:
Advance publication and consultation with expert authority.
Publication of delegated legislation.
Laying of rules.
It determines if it’s either Mandatory or Directory, certain specified parameters are given:
Scheme of the Act.
Intention of Legislature.
Language used for drafting purposes.
Disruption caused to the public at large scale.
And these four parameters were given in the case of Raza Buland Co. vs, Rampur Municipal Council.
This control review is meant to upgrade the rule of law. The court is responsible to see that the power delegated is within the ambit of the constitution as prescribed. Judicial review is more successful because the court does not recommend, but it clearly strikes down the rule which is ultra vires in nature. As per Article13(3)(a) “Law” is defined under the Constitution of India, which clearly indicates that State should not make any law which abridges the right given by the Part (iii) of the Constitution. It is dependent on two basic attributes:
It is ultra vires to the Constitution of India, and
It is ultra vires to the enabling Act.
Narendra Kumar v. Union of India
The Supreme Court held that the provisions of Section 3(5) of the Essential Commodities Act, 1955 which provides that the rules framed under the Act must be laid before both the Houses of Parliament, are mandatory, and therefore Clause 4 of the Non-Ferrous Control Order, 1958 has no effect unless laid before the Parliament.
However, in Jan Mohammad v. the State of Gujarat, the court deviated from its previous stand. Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained an underlying 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. The court held that the rules remained valid because the legislature did not provide that the non-laying provisions at its first session would make the rules invalid.
Control over delegated legislation:
One criticism of delegated legislation is that it is undemocratic. Individual ministers, councils and even private companies can make law without being elected to do so.
Therefore it is important that there are controls over delegated legislation so that people do not make unfair or unreasonable laws.
There are two ways in which delegated legislation is controlled:
Control by Parliament
Control by Courts
Control by Parliament:
Limitations within the Enabling Act:-
Nobody can make delegated legislation without the authority by an Act of Parliament.
Limitations within the Enabling Act:-
The Enabling Act “Enables” the minister/local authority etc. to make law. Therefore it lays down rules on what they can and cannot do.
Scrutiny Committees on Statutory Instruments:
These are groups of politicians who examine delegated legislation in detail(similar to the Committee Stage of lawmaking). It is kept under control by ensuring that ministers do not exceed the powers.
The delegated legislation is laid before Parliament and they should check it before it comes into force and objects to it if there are any issues.
This is where the Parliament has to agree with the delegated legislation or it will not become law.
Super Affirmative Resolution:
This is only used for SI’s made under the Legislative and Regulatory Reform Act, 2006. This, however, gives ministers far-reaching powers and so it needs more control.
Control by Courts
The Courts control delegated legislation with by the doctrine of “ Ultra Vires” and this is where a law-maker has exceeded their law-making powers.
Judicial Review of the delegated legislation is used to determine whether:
The minister has exceeded their powers,
They have acted unreasonably,
They have failed to follow the correct procedure.
Substantive Ultra Vires
Totally going beyond the powers in the Enabling Act.
Case law- R v. Home Secretary, ex parte Fire Brigades Union Minister exceeded his power under an Act to make changes to the Criminal injuries.
Substantive Ultra Vires for Unreasonableness
Case example- Strickland v. Hayes; where the delegated legislation prohibited the singing of any song with any obscene language or the use of obscene language generally.
So it was held to be unreasonable and therefore Ultra vires.
Procedural Ultra Vires: del-leg not in consultation with Mushroom Growers Association as required by the Enabling Act; hence, Ultra Vires.
In the case of Harla v. State of Rajasthan,
The Supreme Court recognised the importance of the publication of rules in the governance of a country. Natural justice requires that before a law becomes operative it must be published. It must be broadcasted in some recognisable manner so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel through which such knowledge can be acquired with the exercise of due and reasonable diligence.
In Union of India v M/s. Ganesh Das Bhojraj,
It was said by the court that any publication in the Official Gazette is the established practice for bringing a rule or subordinate legislation under the notice of the people. Individual service of notice to every member of the public about a general notification is not required and all interested person can acquaint themselves with the content of the notification through the Gazette.
In India, there should be a Parliamentary control overlaying a delegated legislation. It is binding that the committee of parliament needs to be strong enough and separate laws should be created and passed which would give a uniform rule for laying down and for publication purposes as well. There should be a committee which contains a special body to look into the delegated work; whether it’s going in the right direction or not. The three organs should focus on their work and should not break in unnecessarily to prevent disorder in the entire system.
Effectual control against the abuse of delegated powers of legislation must come from the legislature itself, primarily at the time of delegation, and secondarily, through the supervision of the manner in which they are exercised. Equally important is the need for public co-operation in the rule-making process. In a democratic system, the administration must respond to the needs and views of those, upon whom, the rules are going to have an effect.