II) Delegated Legislation – Need for delegated legislation, classification of delegated
legislation. Constitutionality of delegation legislation and control mechanism of administrative
rule making in India.
Delegated Legislation
Introduction:- Montesquieu, a French scholar, conceived the principle of separation of powers.
He felt that governmental power should be vested in three different organs, the legislature, the
executive and the judiciary. Each organ should be independent of the other and no one organ
should perform functions that belong to the other.
The Indian Constitution does not strictly follow the principle of separation of powers.
The executive is a part of the legislature and is responsible to it. In all democratic countries, an
important segment of administrative process is delegated legislation. The great increase in
delegated legislation in modern times is due to several factors, which we will discuss later on.
Though law making is the primary function of the legislature, yet in no country does the
legislature monopolise the entire legislative power; it shares the same with the executive. A
large bulk of legislation is made by the Administration under the powers conferred on it by the
legislature. No statute is passed today by a legislature which does not confer some legislative
power on the Administration. The Act conferring legislative power is known as the “Parent Act”;
the subordinate legislation goes under various appellations, such as, rules, regulations, schemes,
by-laws, statutory rules, orders etc. The power of delegated legislation may be given to the
Central Government or the State Government depending upon whether the statute is a Central
or a state law. Sometimes Central laws delegate legislative powers to the state governments and
sometimes both the Central and the state governments derive rule-making power from the
same Act.
What is delegated legislation? Delegated legislation has been defined by: Salmond 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’.
In simple terms it means-‘when the function of legislation is entrusted to organs other
than the legislature by the legislature itself the legislation made by such organs is called
delegated legislation’.
Here we may give some instances of delegation viz., the Northern India Canal and
Drainage Act, 1873, the Opium Act, 1878; the Advocate Act, 1961, the Export & Import Act,
Essential Commodities Act, 1955, the Indian Medical Council Act, the Right to Information Act,
2005 etc.
Need for delegation legislation or reasons for the growth of delegated legislation
The causes for the growth of delegated legislation are discussed below:
(a) Pressure upon Parliamentary Time: The legislative activity of the State has increased
in response to the increase in its functions and responsibilities. The legislature is
preoccupied with more important policy matters and rarely finds time to discuss
matters of detail. It therefore formulates the legislative policy and gives power to the
executive to make subordinate legislation for the purpose of implementing the policy.
(b) Filling in Details of Legislation: The legislature has to make a variety of laws and the
details required to be provided in each of these laws require knowledge of matters of
technical or local or specialized nature. The executive in consultation with the experts
or with its own experience of local conditions can better improve these. There is no
point in the legislature spending its time over such details and therefore the power to
fill them in is often delegated to the executive or local authorities or expert bodies.
(c) The Need for Flexibility: A statutory provision cannot be amended except by an
amendment passed in accordance with the legislative procedure. This process takes
time. It may however be necessary to make changes in the application of a provision in
the light of experience. It is therefore convenient if the matter is left to be provided
through subordinate legislation. Delegated legislation requires less formal procedure
and therefore changes can be made in it more easily.
(d) Administration through Administrative Agencies: Modern government is plurastic
and functions through a number of administrative agencies and independent
regulatory authorities, which have to regulate and monitor activities in public interest.
These agencies such as the Election Commission or the Reserve Bank of India or the
Board for Industrial and Financial Reconstruction(BIFR) or the Electricity Commission or
the Telecom Regulatory Authority of India(TRAI) etc. have to perform ongoing
regulation and control of various activities. Each of these agencies is required to make
rules or regulations in pursuance of its regulatory function.
(e) Meeting Emergency Situations: In times of emergency, the government may have to
take quick action. All its future actions cannot be anticipated in advance and hence
provisions cannot be made by the legislature to meet all unforeseeable contingencies.
It is safer to empower the executive to lay down rules in accordance with which it
would use its emergency power.
All these reasons for the growth of delegated legislation were summarized by
the Supreme Court in St. John’s Teacher Training Institute v. Regional Director, NCTE
(2003)3 SCC 321.
Classification of delegation legislation:
Delegated legislation may be classified as follows:
(a) Power to bring an Act into Operation:
Usually an Act provides that it shall come into force on such date as the Central
Government or the State government, as the case may be, may, by notification in the
Official Gazette appoint. For example section 1(3) of The Industries( Development and
Regulation) Act, 1951. Such power is given because the government has better knowledge
of the practical exigencies of bringing the law into force. Ideally, since the legislature has
passed the law, the executive is bound to bring it into force.
In A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the
Constitution (44th) Amendment Act, 1978, which conferred power on the executive to bring
the provisions of that Act into force did not suffer from excessive delegation of legislative
power. The Court rejected the contention that the power delegated was a constituent
power. It was held that there were practical difficulties in the enforcement of the laws
contemporaneously with their enactment as also in their uniform extension at the time
when the law was enacted. Therefore, the power is given to the executive to decide the
date on which the Act is to come into force.
(b) Conditional Legislation:
The legislature makes the law but leaves it to the executive to bring the Act into
operation when conditions demanding such operation are obtained. The executive has to decide
whether the necessary conditions required for the law to be in operation have been satisfied or
not and if they have been so, it should issue a notification bringing the law into operation. This
is called conditional legislation. Conditional legislation is of the following types:
(i) Power to bring an Act into operation;
(ii) Power to extend the application of any Act in force in one territory to another
territory; and to restrict and make modifications in the original legislation to suit the
exigencies of the territory under its control;
(iii) Power to extend the life of an Act; and
(iv) Power to extend or to exempt from the operation of an Act certain categories of
subjects or territories.
(c) Power to Fill in Details
This is the most common type of delegated legislation. The legislature passes the
skeleton and empowers the executive to provide the flesh and bones through
subordinate legislation. The enabling clause usually says that the Central or the state
government may make rules ‘to carry out the purposes of the Act’.
(d) Powers to Remove Difficulties
Many Acts contain provisions for conferring such extensive power of delegated
legislation on the executive. The purpose of such provision is to enable the executive to
remove difficulties in the implementation of the Act and to effectuate its purpose and
policy. For example, Section 26 of the Legal Services Authorities Act, 1987 and section
29 of the Insurance(Regulatory and Development) Authority Act, 1999.
Constitutionality of delegated legislation – Judicial Review of Delegated Legislation
Judicial review upholds the rule of law. The courts have to see that the delegated legislation is
exercised within the ambit of the power delegated and according to the Constitution. Judicial
review tends to be more effective because the Courts do not merely recommend but can strike
down a rule if it is ultra vires the enabling Act or the Constitution. Since the word ‘law’ as
defined in Article 13(3) (a) includes order, by law, rule, regulation and notification, the entire
subordinate legislation, like plenary legislation is subject to the command of art 13(2) which says
that the state shall make no law which takes away or abridges the rights conferred by Part III of
the Constitution. Delegation legislation may therefore be assailed on the following grounds:
(i) that it is ultra vires the enabling Act; and
(ii) that it is ultra vires the Constitution.
The first ground alleges that the rules so impugned are not within the ambit of the power
delegated. This ground may contain the charge of substantive lack of power or non-conformity
with the procedure prescribed under the enabling Act. The second ground involves lack of
power as well as violation of any specific constitutional provision.
Control Mechanism of administrative rule making in India
Control Mechanism of delegated Legislation (three types)
1. Parliamentary/Legislative Control.
2. Procedural/Administrative/Executive Control.
3. Judicial Control.
1. PARLIAMENTARY/LEGISLATIVE CONTROL.
In a parliamentary democracy it is the function of the legislature to legislate, but if it
seeks to delegate this power to the executive in some circumstances, it is not only the right of
legislature, but also its obligation as principal to see how its agent (i.e. the Executives) carries
out the agency entrusted to it. Hence the parliamentary control over delegated legislation
should be a living continuity as a constitutional necessity. The fact is that due to the broad
delegation of legislative powers and the generalized standard of control also being broad, the
judicial control has shrunk, raising the desirability and necessity of parliamentary control.
In India, ‘parliamentary control’ is implicit as a normal constitutional function because
the executive is responsible to the Parliament Legislative Control is a two stage control.
1. Initial stage (At the stage of delegation of power)
2. When legislature exercise control in two parts (direct and indirect control)
Initial stage: In case where there is a bill which provides of delegation of powers
such a bill should be accompanies by a legislation stating how much power has
been delegated. The basic emphasis in the initial stage is that whether the
power has been validity delegated or not.
Second stage: (A) Direct Control, and (B) Indirect Control.
(A) Direct Control: In this the important aspect is the laying requirement which means that the
rules have to be placed before the Parliament. Laying comes into play after the rules are made
and it assumes three major forms depending on the degree of control which the legislative may
like to exercise.
(a) Simple laying (i.e. laying with no further direction): In this, the rules inform house come
into effect as soon as they are laid. It is simply to vides that the rules shall be laid before
parliament as soon as they are made or published. It is directory in nature.
(B) Negative laying or subject to annulment or modification: The rules come into force as
soon as they are placed before Parliament but cease to have effect if disapproved by the
Parliament in specified time i.e. within 40 days. It is directory in nature unless and until
annulled by the Parliament.
(c) Affirmative Laying: The technique may take two shapes:
(i) That the rules have no effect unless approved by a resolution of both houses of
parliament.
(ii) That the rules shall cease to have effect unless approved by affirmative resolution. This
technique necessitates a debate in every case thus one object of delegation (viz. saving the time
of Parliament) is to some extent defeated. This requirement is mandatory in nature because
rules made in draft form shall be placed before both the houses of parliament for approval and
then they will come into force after they have been approved. If this procedure is not followed
it affects the legal validity of rule.
Therefore this procedure is sparingly used and reserved to cases where the order almost
amounts to an Act by effecting changes which approximate to true legislation, and cases where
the spending of public money is affected or where the order replaces local Acts or provisional
orders. Amongst all three methods simple laying is hardly used and negative resolution is the
commonest form of laying.
Legal consequences of non compliance with the laying provision
In India, the position is not categorical, the consequence of non compliance with the laying
provisions depend on whether the provisions in the enabling Act are mandatory or directory.
Test for mandatory.
1. Where the laying requirement is a conditions precedent to bring the rules into force
then in such a case the laying requirement is mandatory in nature.
2. Where there is a provision that the rules be in draft form then such form states that
laying is mandatory in nature.
Test for Directory
Where laying requirement is subsequent to bring the rules into operation then the laying
requirement will directory in nature.
This issue of mandatory or directory was debated at length in Atlas Cycle Ind. Ltd. V. State of
Haryana (AIR 1979 SC 1149) the Section 3(6) of Essential Commodities Act, 1955 provided that
rules made by the central government shall be laid before the parliament as soon as they are
made. Accordingly the central government made a rule, making Iron and Steel an essential
commodities. On spot checking the development officer found that the company had
purchased instituted against the company. The company contended that this suffered from
procedural ultravires as it has not been laid before the Parliament. The court held that the
Section required simple laying hence it is directory in nature and not mandatory in nature. In
case of simple laying the rules come into force the moment they are laid before the legislature
and they do not require any action on the part of the legislature to come into force. The
Supreme Court observed two consideration for regarding a provision as directory-
1. absence of any provision for the contingency of a particular provision not being
complied with or followed.
2. serious general inconvenience and prejudice that would result to the general public
if the act of the Government or an instrumentality is declared invalid for non-
compliance with the particular provision.
(B)Indirect Control: This control is exercised by Parliament through its committees. Such a
committee known as the committee on subordinate legislation of Lok Sabha set up in 1953 and
consist of 15 members appointed by Lok Sabha Speaker for a period of one year. Another
committee on subordinate legislation known as Rajay Sabha committee constitutive in 1964
consist of 15 member nominated by chairman of Rajaya Sabha & it holds office till new
committee is formed. The committee is assigned the task to scrutinize and report to the House,
whether the power to make regulations, bye laws, etc conferred by the constitution or
delegated by the Parliament are being properly exercised within such delegation Ministers can
become members of this committee. The main function of the committee shall be to examine:
1. Whether the rules are in accordance with the general object of Act.
2. Whether the rules contain any matter which could more properly be dealt with in the
Act.
3. whether it conations imposition of tax.
4. Whether it directly or indirectly bars the jurisdiction of the court.
5. Whether there has been unjustified delays in its publication or laying.
6. whether it is retrospective in nature.
7. Whether it involves expenditure from the consolidated fund.
8. Whether it is safeguard of principle of natural justice.
The government attaches great weight to the committee’s report and tires is implement its
recommendations. The biggest drawback is that is cannot strike know delegated legislation on
the basis of being excessive in nature, it is just recommendatory in nature not corrective.
2. PROCEDURAL/ADMINISTRATIVE/EXECUTIVE 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 viz (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. Raza Buland Sugar Co. v.
Rampur Municipal Council (AIR 1965 Sc 895).
(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, 1897 is 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.
In Ibrahim vs. Regional Transport Authority (Air 1953 SC 79), consultation with the
Municipality was required to be made the Transport Authority before certain routes for
buses were fixed. The S.C. held it to be merely directory.
(2) PUBLICATION (POST NATAL PUBLICITY)’
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 f 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.
NECESSITY OF PUBLICATION
Whether the requirement as to be mode of publication of rules is mandatory or directory? Will
the rules be valid if to published in official gazette but circulated in any other mode?
Form the point of view of the individual it is infair to publish the rule is obscure publication.
First publication in required mode creates certainty in the mind of the individual that rules have
been duly made. Secondly it enables him to have say access ability to the rules.
In Raza Buland Sugar Co. v. Rampur Municipality (AIR 1965 SC 896) for the S.C. Wanchoo, J.
observed. ‘The question whether a particular provision of statute which on the face of a
appears mandatory or is merely directory cannot be laying down any general rule and depends
upon the facts of each case and for that purpose the object of the statute in making the
provision is the determining factor. The language of the provision have all to be taken into
account in arriving at the conclusion whether particular provision is mandatory or directory.”
Further, the medium of publication has been held to be a mandatory requirement.
3. JUDICIAL CONTROL
Judicial review upholds the rule of law. The courts have to see that the delegated legislation is
exercised within the ambit of the power delegated and according to the Constitution. Judicial
review tends to be more effective because the Courts do not merely recommend but can strike
down a rule if it is ultra vires the enabling Act or the Constitution. Since the word ‘law’ as
defined in Article 13(3) (a) includes order, by law, rule, regulation and notification, the entire
subordinate legislation, like plenary legislation is subject to the command of art 13(2) which says
that the state shall make no law which takes away or abridges the rights conferred by Part III of
the Constitution. Delegation legislation may therefore be assailed on the following grounds:
(iii) that it is ultra vires the enabling Act; and
(iv) that it is ultra vires the Constitution.
The first ground alleges that the rules so impugned are not within the ambit of the power
delegated. This ground may contain the charge of substantive lack of power or non-conformity
with the procedure prescribed under the enabling Act. The second ground involves lack of
power as well as violation of any specific constitutional provision.
….
legislation. Constitutionality of delegation legislation and control mechanism of administrative
rule making in India.
Delegated Legislation
Introduction:- Montesquieu, a French scholar, conceived the principle of separation of powers.
He felt that governmental power should be vested in three different organs, the legislature, the
executive and the judiciary. Each organ should be independent of the other and no one organ
should perform functions that belong to the other.
The Indian Constitution does not strictly follow the principle of separation of powers.
The executive is a part of the legislature and is responsible to it. In all democratic countries, an
important segment of administrative process is delegated legislation. The great increase in
delegated legislation in modern times is due to several factors, which we will discuss later on.
Though law making is the primary function of the legislature, yet in no country does the
legislature monopolise the entire legislative power; it shares the same with the executive. A
large bulk of legislation is made by the Administration under the powers conferred on it by the
legislature. No statute is passed today by a legislature which does not confer some legislative
power on the Administration. The Act conferring legislative power is known as the “Parent Act”;
the subordinate legislation goes under various appellations, such as, rules, regulations, schemes,
by-laws, statutory rules, orders etc. The power of delegated legislation may be given to the
Central Government or the State Government depending upon whether the statute is a Central
or a state law. Sometimes Central laws delegate legislative powers to the state governments and
sometimes both the Central and the state governments derive rule-making power from the
same Act.
What is delegated legislation? Delegated legislation has been defined by: Salmond 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’.
In simple terms it means-‘when the function of legislation is entrusted to organs other
than the legislature by the legislature itself the legislation made by such organs is called
delegated legislation’.
Here we may give some instances of delegation viz., the Northern India Canal and
Drainage Act, 1873, the Opium Act, 1878; the Advocate Act, 1961, the Export & Import Act,
Essential Commodities Act, 1955, the Indian Medical Council Act, the Right to Information Act,
2005 etc.
Need for delegation legislation or reasons for the growth of delegated legislation
The causes for the growth of delegated legislation are discussed below:
(a) Pressure upon Parliamentary Time: The legislative activity of the State has increased
in response to the increase in its functions and responsibilities. The legislature is
preoccupied with more important policy matters and rarely finds time to discuss
matters of detail. It therefore formulates the legislative policy and gives power to the
executive to make subordinate legislation for the purpose of implementing the policy.
(b) Filling in Details of Legislation: The legislature has to make a variety of laws and the
details required to be provided in each of these laws require knowledge of matters of
technical or local or specialized nature. The executive in consultation with the experts
or with its own experience of local conditions can better improve these. There is no
point in the legislature spending its time over such details and therefore the power to
fill them in is often delegated to the executive or local authorities or expert bodies.
(c) The Need for Flexibility: A statutory provision cannot be amended except by an
amendment passed in accordance with the legislative procedure. This process takes
time. It may however be necessary to make changes in the application of a provision in
the light of experience. It is therefore convenient if the matter is left to be provided
through subordinate legislation. Delegated legislation requires less formal procedure
and therefore changes can be made in it more easily.
(d) Administration through Administrative Agencies: Modern government is plurastic
and functions through a number of administrative agencies and independent
regulatory authorities, which have to regulate and monitor activities in public interest.
These agencies such as the Election Commission or the Reserve Bank of India or the
Board for Industrial and Financial Reconstruction(BIFR) or the Electricity Commission or
the Telecom Regulatory Authority of India(TRAI) etc. have to perform ongoing
regulation and control of various activities. Each of these agencies is required to make
rules or regulations in pursuance of its regulatory function.
(e) Meeting Emergency Situations: In times of emergency, the government may have to
take quick action. All its future actions cannot be anticipated in advance and hence
provisions cannot be made by the legislature to meet all unforeseeable contingencies.
It is safer to empower the executive to lay down rules in accordance with which it
would use its emergency power.
All these reasons for the growth of delegated legislation were summarized by
the Supreme Court in St. John’s Teacher Training Institute v. Regional Director, NCTE
(2003)3 SCC 321.
Classification of delegation legislation:
Delegated legislation may be classified as follows:
(a) Power to bring an Act into Operation:
Usually an Act provides that it shall come into force on such date as the Central
Government or the State government, as the case may be, may, by notification in the
Official Gazette appoint. For example section 1(3) of The Industries( Development and
Regulation) Act, 1951. Such power is given because the government has better knowledge
of the practical exigencies of bringing the law into force. Ideally, since the legislature has
passed the law, the executive is bound to bring it into force.
In A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the
Constitution (44th) Amendment Act, 1978, which conferred power on the executive to bring
the provisions of that Act into force did not suffer from excessive delegation of legislative
power. The Court rejected the contention that the power delegated was a constituent
power. It was held that there were practical difficulties in the enforcement of the laws
contemporaneously with their enactment as also in their uniform extension at the time
when the law was enacted. Therefore, the power is given to the executive to decide the
date on which the Act is to come into force.
(b) Conditional Legislation:
The legislature makes the law but leaves it to the executive to bring the Act into
operation when conditions demanding such operation are obtained. The executive has to decide
whether the necessary conditions required for the law to be in operation have been satisfied or
not and if they have been so, it should issue a notification bringing the law into operation. This
is called conditional legislation. Conditional legislation is of the following types:
(i) Power to bring an Act into operation;
(ii) Power to extend the application of any Act in force in one territory to another
territory; and to restrict and make modifications in the original legislation to suit the
exigencies of the territory under its control;
(iii) Power to extend the life of an Act; and
(iv) Power to extend or to exempt from the operation of an Act certain categories of
subjects or territories.
(c) Power to Fill in Details
This is the most common type of delegated legislation. The legislature passes the
skeleton and empowers the executive to provide the flesh and bones through
subordinate legislation. The enabling clause usually says that the Central or the state
government may make rules ‘to carry out the purposes of the Act’.
(d) Powers to Remove Difficulties
Many Acts contain provisions for conferring such extensive power of delegated
legislation on the executive. The purpose of such provision is to enable the executive to
remove difficulties in the implementation of the Act and to effectuate its purpose and
policy. For example, Section 26 of the Legal Services Authorities Act, 1987 and section
29 of the Insurance(Regulatory and Development) Authority Act, 1999.
Constitutionality of delegated legislation – Judicial Review of Delegated Legislation
Judicial review upholds the rule of law. The courts have to see that the delegated legislation is
exercised within the ambit of the power delegated and according to the Constitution. Judicial
review tends to be more effective because the Courts do not merely recommend but can strike
down a rule if it is ultra vires the enabling Act or the Constitution. Since the word ‘law’ as
defined in Article 13(3) (a) includes order, by law, rule, regulation and notification, the entire
subordinate legislation, like plenary legislation is subject to the command of art 13(2) which says
that the state shall make no law which takes away or abridges the rights conferred by Part III of
the Constitution. Delegation legislation may therefore be assailed on the following grounds:
(i) that it is ultra vires the enabling Act; and
(ii) that it is ultra vires the Constitution.
The first ground alleges that the rules so impugned are not within the ambit of the power
delegated. This ground may contain the charge of substantive lack of power or non-conformity
with the procedure prescribed under the enabling Act. The second ground involves lack of
power as well as violation of any specific constitutional provision.
Control Mechanism of administrative rule making in India
Control Mechanism of delegated Legislation (three types)
1. Parliamentary/Legislative Control.
2. Procedural/Administrative/Executive Control.
3. Judicial Control.
1. PARLIAMENTARY/LEGISLATIVE CONTROL.
In a parliamentary democracy it is the function of the legislature to legislate, but if it
seeks to delegate this power to the executive in some circumstances, it is not only the right of
legislature, but also its obligation as principal to see how its agent (i.e. the Executives) carries
out the agency entrusted to it. Hence the parliamentary control over delegated legislation
should be a living continuity as a constitutional necessity. The fact is that due to the broad
delegation of legislative powers and the generalized standard of control also being broad, the
judicial control has shrunk, raising the desirability and necessity of parliamentary control.
In India, ‘parliamentary control’ is implicit as a normal constitutional function because
the executive is responsible to the Parliament Legislative Control is a two stage control.
1. Initial stage (At the stage of delegation of power)
2. When legislature exercise control in two parts (direct and indirect control)
Initial stage: In case where there is a bill which provides of delegation of powers
such a bill should be accompanies by a legislation stating how much power has
been delegated. The basic emphasis in the initial stage is that whether the
power has been validity delegated or not.
Second stage: (A) Direct Control, and (B) Indirect Control.
(A) Direct Control: In this the important aspect is the laying requirement which means that the
rules have to be placed before the Parliament. Laying comes into play after the rules are made
and it assumes three major forms depending on the degree of control which the legislative may
like to exercise.
(a) Simple laying (i.e. laying with no further direction): In this, the rules inform house come
into effect as soon as they are laid. It is simply to vides that the rules shall be laid before
parliament as soon as they are made or published. It is directory in nature.
(B) Negative laying or subject to annulment or modification: The rules come into force as
soon as they are placed before Parliament but cease to have effect if disapproved by the
Parliament in specified time i.e. within 40 days. It is directory in nature unless and until
annulled by the Parliament.
(c) Affirmative Laying: The technique may take two shapes:
(i) That the rules have no effect unless approved by a resolution of both houses of
parliament.
(ii) That the rules shall cease to have effect unless approved by affirmative resolution. This
technique necessitates a debate in every case thus one object of delegation (viz. saving the time
of Parliament) is to some extent defeated. This requirement is mandatory in nature because
rules made in draft form shall be placed before both the houses of parliament for approval and
then they will come into force after they have been approved. If this procedure is not followed
it affects the legal validity of rule.
Therefore this procedure is sparingly used and reserved to cases where the order almost
amounts to an Act by effecting changes which approximate to true legislation, and cases where
the spending of public money is affected or where the order replaces local Acts or provisional
orders. Amongst all three methods simple laying is hardly used and negative resolution is the
commonest form of laying.
Legal consequences of non compliance with the laying provision
In India, the position is not categorical, the consequence of non compliance with the laying
provisions depend on whether the provisions in the enabling Act are mandatory or directory.
Test for mandatory.
1. Where the laying requirement is a conditions precedent to bring the rules into force
then in such a case the laying requirement is mandatory in nature.
2. Where there is a provision that the rules be in draft form then such form states that
laying is mandatory in nature.
Test for Directory
Where laying requirement is subsequent to bring the rules into operation then the laying
requirement will directory in nature.
This issue of mandatory or directory was debated at length in Atlas Cycle Ind. Ltd. V. State of
Haryana (AIR 1979 SC 1149) the Section 3(6) of Essential Commodities Act, 1955 provided that
rules made by the central government shall be laid before the parliament as soon as they are
made. Accordingly the central government made a rule, making Iron and Steel an essential
commodities. On spot checking the development officer found that the company had
purchased instituted against the company. The company contended that this suffered from
procedural ultravires as it has not been laid before the Parliament. The court held that the
Section required simple laying hence it is directory in nature and not mandatory in nature. In
case of simple laying the rules come into force the moment they are laid before the legislature
and they do not require any action on the part of the legislature to come into force. The
Supreme Court observed two consideration for regarding a provision as directory-
1. absence of any provision for the contingency of a particular provision not being
complied with or followed.
2. serious general inconvenience and prejudice that would result to the general public
if the act of the Government or an instrumentality is declared invalid for non-
compliance with the particular provision.
(B)Indirect Control: This control is exercised by Parliament through its committees. Such a
committee known as the committee on subordinate legislation of Lok Sabha set up in 1953 and
consist of 15 members appointed by Lok Sabha Speaker for a period of one year. Another
committee on subordinate legislation known as Rajay Sabha committee constitutive in 1964
consist of 15 member nominated by chairman of Rajaya Sabha & it holds office till new
committee is formed. The committee is assigned the task to scrutinize and report to the House,
whether the power to make regulations, bye laws, etc conferred by the constitution or
delegated by the Parliament are being properly exercised within such delegation Ministers can
become members of this committee. The main function of the committee shall be to examine:
1. Whether the rules are in accordance with the general object of Act.
2. Whether the rules contain any matter which could more properly be dealt with in the
Act.
3. whether it conations imposition of tax.
4. Whether it directly or indirectly bars the jurisdiction of the court.
5. Whether there has been unjustified delays in its publication or laying.
6. whether it is retrospective in nature.
7. Whether it involves expenditure from the consolidated fund.
8. Whether it is safeguard of principle of natural justice.
The government attaches great weight to the committee’s report and tires is implement its
recommendations. The biggest drawback is that is cannot strike know delegated legislation on
the basis of being excessive in nature, it is just recommendatory in nature not corrective.
2. PROCEDURAL/ADMINISTRATIVE/EXECUTIVE 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 viz (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. Raza Buland Sugar Co. v.
Rampur Municipal Council (AIR 1965 Sc 895).
(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, 1897 is 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.
In Ibrahim vs. Regional Transport Authority (Air 1953 SC 79), consultation with the
Municipality was required to be made the Transport Authority before certain routes for
buses were fixed. The S.C. held it to be merely directory.
(2) PUBLICATION (POST NATAL PUBLICITY)’
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 f 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.
NECESSITY OF PUBLICATION
Whether the requirement as to be mode of publication of rules is mandatory or directory? Will
the rules be valid if to published in official gazette but circulated in any other mode?
Form the point of view of the individual it is infair to publish the rule is obscure publication.
First publication in required mode creates certainty in the mind of the individual that rules have
been duly made. Secondly it enables him to have say access ability to the rules.
In Raza Buland Sugar Co. v. Rampur Municipality (AIR 1965 SC 896) for the S.C. Wanchoo, J.
observed. ‘The question whether a particular provision of statute which on the face of a
appears mandatory or is merely directory cannot be laying down any general rule and depends
upon the facts of each case and for that purpose the object of the statute in making the
provision is the determining factor. The language of the provision have all to be taken into
account in arriving at the conclusion whether particular provision is mandatory or directory.”
Further, the medium of publication has been held to be a mandatory requirement.
3. JUDICIAL CONTROL
Judicial review upholds the rule of law. The courts have to see that the delegated legislation is
exercised within the ambit of the power delegated and according to the Constitution. Judicial
review tends to be more effective because the Courts do not merely recommend but can strike
down a rule if it is ultra vires the enabling Act or the Constitution. Since the word ‘law’ as
defined in Article 13(3) (a) includes order, by law, rule, regulation and notification, the entire
subordinate legislation, like plenary legislation is subject to the command of art 13(2) which says
that the state shall make no law which takes away or abridges the rights conferred by Part III of
the Constitution. Delegation legislation may therefore be assailed on the following grounds:
(iii) that it is ultra vires the enabling Act; and
(iv) that it is ultra vires the Constitution.
The first ground alleges that the rules so impugned are not within the ambit of the power
delegated. This ground may contain the charge of substantive lack of power or non-conformity
with the procedure prescribed under the enabling Act. The second ground involves lack of
power as well as violation of any specific constitutional provision.
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