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In modern governance, the practice of delegating legislative powers to the executive branch has become increasingly prevalent due to the complexities of regulating various spheres of public life.
This phenomenon, known as delegated legislation, allows the administration to formulate rules, regulations, and by-laws within the broad framework established by parent statutes enacted by the legislature.
However, this delegation of power raises concerns about the potential erosion of parliamentary sovereignty and the need for effective oversight mechanisms to ensure accountability and democratic legitimacy.
Parliamentary control over delegated legislation is a crucial safeguard against the excessive concentration of power in the executive branch and the potential abuse of delegated authority. It reinforces the principles of responsible government and upholds the supremacy of the legislature as the primary lawmaking body.
This article explores the various forms of parliamentary control exercised over delegated legislation, highlighting their significance, challenges, and potential reforms.
Direct Parliamentary Control
General Control
Direct parliamentary control is exercised through various means, such as debates, questions, notices, and resolutions moved by members of parliament (MPs). These mechanisms allow for scrutiny of the necessity, extent, and type of delegation, ensuring that the executive branch remains accountable to the legislature.
Special Control: The Laying Procedure
One of the most significant forms of direct parliamentary control is the laying procedure, which requires the executive to place delegated legislation before Parliament. There are three main variants of this procedure:
Simple Laying: In this form, the rules and regulations come into effect as soon as they are laid before the House, serving merely to inform Parliament about their existence.
Laying Subject to Negative Resolution: This is the most common form, where the rules have immediate operative effect upon being laid, but they are subject to annulment by a resolution of the House within a specified period, typically 40 days. This procedure acts as a deterrent and sometimes forces the Minister to modify the rules to address concerns raised by MPs.
Laying Subject to Affirmative Resolution: In this case, the rules have no effect or force unless approved by a resolution of each House of Parliament. This procedure necessitates a debate in every instance, potentially defeating one of the purposes of delegation – saving parliamentary time. It is typically reserved for cases where the delegated legislation significantly impacts public expenditure, replaces local Acts, or approximates true legislation.
The legal consequences of non-compliance with the laying provisions depend on whether the enabling Act's provisions are mandatory or directory. In the landmark case of Atlas Cycle Industries Ltd. v. State of Haryana(More Detailed Disccusion below), the Supreme Court held that each case must be evaluated based on its specific circumstances and the wording of the statute under which the rules are made.
Indirect Parliamentary Control
Indirect parliamentary control is exercised through specialized committees, such as the Committee on Subordinate Legislation in the Lok Sabha.
These committees scrutinize whether the delegated powers are being exercised within the scope of the delegation, examining issues such as compliance with the parent Act's objectives, the imposition of taxes, and potential encroachment on judicial jurisdiction.
The government generally attaches significant weight to these committees' reports and recommendations.
Procedural Controls
In addition to direct and indirect parliamentary controls, procedural safeguards like publication and consultation requirements provide an additional layer of oversight and public participation in the rule-making process.
Publication
Adequate publicity of delegated legislation is a crucial safeguard against the abuse of delegated powers. While there is no general statutory provision in India regulating the publication of delegated legislation, the Supreme Court has held in cases like Harla v. State of Rajasthan that publication is an essential requirement for the validity of delegated legislation, even if the law is silent on the matter.
The mode of publication, whether through official gazettes or other means, is generally considered directory rather than mandatory, as long as it reasonably enables affected individuals to access the rules with due diligence.
However, the court has emphasized the importance of publishing rules in local languages and widely circulated newspapers to ensure effective communication and accessibility.
Consultation
The consultative process democratises the rule-making process by allowing affected interests to have their say and influence administrative decisions. While there is no general requirement for consultation in India, some parent statutes mandate "previous publication" of draft rules, inviting objections and suggestions from the public before finalisation.
The Supreme Court has consistently held that provisions requiring consultation with affected parties or statutory bodies are mandatory, emphasizing the importance of public participation in the interest of public welfare and effective implementation of laws.
Challenges and Reforms
Despite the existing mechanisms for parliamentary control, delegated legislation continues to raise concerns about the potential erosion of legislative authority and the lack of adequate scrutiny. Some of the key challenges include:
The broad delegation of legislative powers, often with generalized standards of control, which can diminish the effectiveness of parliamentary oversight.
The limited capacity of Parliament to scrutinise the vast volume of delegated legislation, leading to a reliance on negative resolution procedures that may not provide sufficient oversight.
The lack of uniformity in control mechanisms across different statutes, creating inconsistencies and potential loopholes.
The inadequacy of memoranda accompanying bills involving delegation proposals, which often fail to provide comprehensive information about the scope and nature of the proposed delegation.
To address these challenges, various reforms have been proposed, including:
Establishing a uniform and mandatory laying procedure for all delegated legislation, subject to affirmative resolution by Parliament.
Strengthening the role and resources of specialized parliamentary committees to enhance their capacity for effective scrutiny.
Mandating comprehensive memoranda accompanying bills involving delegation proposals, providing detailed information about the scope, necessity, and potential impact of the proposed delegation.
Promoting greater transparency and public participation in the rule-making process through enhanced publication and consultation requirements.
Exploring the potential for post-legislative scrutiny mechanisms, such as periodic reviews or sunset clauses, to ensure the continued relevance and appropriateness of delegated legislation.
Case laws on Control of Delegated Legistation
1. Atlas Cycle Industries Ltd. v State of Haryana (AIR 1979 SC 1149)
This case addressed whether the requirement to lay rules before Parliament was mandatory or directory. The Supreme Court held that the determination depends on the specific wording and context of the statute under which the rules are made.
"The questions whether the direction to lay the 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 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."
2. Jan Mohmd. v State of Gujarat (AIR 1966 SC 385)
The case involved the Bombay Agricultural Produce Markets Act, which required rules to be laid before the legislature. The rules were not laid in the first session but were placed in the second session. The Court held that the rules remained valid as the legislature did not specify that non-laying in the first session would invalidate the rules.
"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."
3. Govind Lal v Agr. P.M. Committee (AIR 1976 SC 263)
This case examined whether the notification under the Gujarat Agricultural Produce Markets Act, 1964, needed to be published in Gujarati in a local newspaper. The Court held that this requirement was mandatory.
"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."
"The governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature, but from a variety of other circumstances and considerations."
4. Sonik Industries, Rajkot v Municipal Corporation, Rajkot (AIR 1986 SC 1518)
The case dealt with the publication of rules for the levy of a rate on buildings and lands. The Court held that the mode of publication is directory, and it is sufficient if it is reasonably possible for affected persons to obtain knowledge of the rules.
"The mandatory requirement of Sec. 77 was that the rules should be published and it seems to us that 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."
5. Harla v State of Rajasthan (AIR 1951 SC 467)
The Supreme Court held that a law cannot be enforced unless it is published. The case involved the Jaipur Opium Act, which was never published, and the Court ruled that it was against natural justice to punish someone under a law they had no knowledge of.
One Harla was prosecuted for the contravention of this law. The court held that
‘’publication of some sort is essential, as it would be against natural justice to punish the subjects under a law of which they had no knowledge and of which they could not, even with the exercise of reasonable diligence, have acquired any knowledge."
6. Rajnarain’s case (AIR 1954 SC 569)
The case involved a provision authorizing affected persons to file objections against any taxation measure imposed by a municipality. The Court regarded this as a matter of policy within the legislature's power, not the executive's.
"A provision authorising affected persons to file objections against any taxation measure imposed by municipality, was regarded as a matter of policy and so lying within the power of legislature and not of the executive to tamper with."
7. Raza Buland Sugar Co. case (AIR 1965 SC 895)
The case involved a statutory provision requiring a municipality to publish draft rules imposing a tax and consult the inhabitants of the area. The Court held that this requirement was mandatory.
"A statutory provision requiring a municipality to publish the draft rules imposing a tax to consult the inhabitants of the area was held to be mandatory."
8. Banwarilal Agarwalla v State of Bihar (AIR 1961 SC 849)
The case held that whenever there is a procedure to consult interested parties, such consultation is mandatory. The Court emphasized the importance of consultation in the interest of public welfare and effectuating the purposes of the Act.
"Whenever there is a procedure to consult interested parties, it is mandatory. The court observed that such consultation was essential (i.e. consultation with Mining Boards constituted under the Mines Act, 1952) in the interest of public welfare and for effectuating the purposes of the Act."
These cases collectively highlight the importance of procedural safeguards, publication, and consultation in the context of delegated legislation, ensuring that the executive's rule-making powers are exercised within the bounds of legislative intent and public interest.
Vital Safeguard for Democracy
Parliamentary control over delegated legislation is a vital constitutional safeguard that upholds the principles of responsible government, democratic accountability, and the separation of powers.
While the existing mechanisms in India provide a framework for oversight, there is a need for continuous evaluation and reform to ensure that delegated legislation remains subject to effective scrutiny and public participation.
By strengthening parliamentary control, enhancing procedural safeguards, and promoting transparency and consultation, the balance between administrative efficiency and democratic legitimacy can be maintained, ensuring that delegated legislation serves the public interest while respecting the supremacy of the legislature as the primary lawmaking body.