Legislative or Parliamentary Control over Delegated Legislation
Introduction
In India, primarily the rule-making power as per the distribution of power under the constitutional framework is bestowed upon the parliament for the union government and legislative assemblies for the state(s). However, with the change in nature of the state from the police state to that the welfare state, the work which is supposed to be done increased to a much larger extent and that is where when the need for delegated legislation arises.
However, in delegated legislation administrative jurisprudence shows that the essential legislative functions cannot be delegated further as it stands in violation of the distribution of power amongst different organs of the government, but, ancillary and incidental functions of the legislative organ of the government can be delegated further. This is so to reduce the burden of the legislature which can be directed towards more fruitful rather than mechanical works that do not require much legislative intervention.[1]
That is why in the jurisprudence of administrative law, the need for delegated legislation was felt and inculcated on the ground that it is more flexible and adaptable to the needs of the society because of less rigor involved in rule-making power that has been delegated to the executive. Moreover, delegated legislation is also referred to as “subordinate or secondary legislation”, because, the legislature has the primary duty to frame the policy decision[2] or pass the parent Act which gives power to the executive to frame the law further with certain checks by the legislature itself in order to ensure that the executive does not acquire such unchecked power which can undermine the constitutional schema in toto.[3]
Why there is a need for Delegated Legislation?
There are several reasons for the development of the concept of delegated legislation in the modern welfare state, some of the major reasons for such development are highlighted below;
(a) Pressure upon the Parliament: As stated earlier, the very nature of the welfare state is burdensome in terms of duties and obligations which are assigned to the legislature as they are the one who is responsible to take care of basic needs like that of food, cloth, shelter, and other welfare schemes, for the betterment of its subjects. On the other hand, in a police states, the government has no responsibility except that to maintain a law and order situation in the territorial jurisdiction of the state. Thus, with the change in time, many new duties are being bestowed on the state and it is expected from them that these duties are duly performed, which is why the parliament or the state legislature has enormous duty to pass legislation after much deliberation on the floor of the house, and, at the same time, they have the duty to take care of the needs of its subjects.[4]
Thus, leeway has been provided under the constitution itself through which incidental functions of the legislature can be assigned to the executive so that to reduce the burden from the shoulders of legislatures as only then they can function for the betterment of the common populace with zeal and passion instead of rendering itself to doing mechanical work of passing hollow legislations.
(b) Technicality: With the change in time, technology and societies in toto are getting complex, but, the legislatures in India are chosen by the general public based on their agendas and promises, however, it is not necessary that these public representatives have all the required knowledge of different fields. They might have an understanding of the needs of their voters/constituency, or, they might have the required knowledge of particular fields like law, administration, technology, taxation, etc. depending upon their experience and expertise as working professionals. But, it is too much to expect that the public representative who was a scientist on atomic energy has all the knowledge and understanding of the tax laws of the country.[5]
That is why to ensure proper deliberation and application of the best minds in the field to the concerned legislation, the need was felt to assign the concerned legislation to the experts in the field once the parliament/state legislature has framed the broad provisions of the statute.
(c) Flexibility: Furthermore, there are situations in which certain laws are needed to be changed or amended in order to suit the needs of changing society. Especially when it comes to technology in the 21st century, the world is continuously changing, or in the situation of emergency which requires prompt action to meet the needs of society. But, going through the whole legislative process might take a certain number of years because of the nitty-gritty involved in the passage of legislation by the legislature and also because of one or other reasons pertaining to issues like the legislature is not in session or bill gets lapsed without duly passed by both the houses.
Thus, in the select situation, delegation is required to further its aim of making law as per the developments which take place in the changing world, and for this, going through traditional law-making power of the legislature might be cumbersome where the situation might also arise where the law has been passed but the technology upon which the regulation was solicited, becomes out-dated because of the passage of a couple of years of pendency in one or other house of the parliament.[6]
Apart from all this, there are other reasons like experimentation where the laws framed by the executive of a particular locality can be applied to that jurisdiction on a trial basis so that to observe its viability in pursuance of the aspirations of that locality, and, if it is found to be apt to reduce the existing menace, then, that can be made applicable through legislation in different parts of the country, for which the delegation is required to be done of the legislative function of the legislature. But, the main motive behind all this is to reduce the burden of the parliament and ensure quality legislation through the application of the minds of the experts in the concerned field in order to ensure the needs and aspirations of the commoners are duly taken care of in the modern welfare state.[7]
Whether Delegated Legislations Constitutional?
Under the framework of the Indian Constitution, the delegation of legislative powers of the legislature does not stand on the same footing as that of practice followed by the British Parliament. As in India, the permissibility of delegated legislation has been defined and extended from time to time by the courts in consonance with the express provisions of the constitution. And, just to clarify that the Indian Constitution does not contain the express provision which bestows inexhaustible right of delegation of legislative power which is bestowed upon the legislature, instead, it is a matter of construction keeping in mind the key legislative function of the concerned legislature.[8]
For the first time in the post-independence era, the constitutionality of delegated legislation has been recognized in Raj Narain Singh v. Chairman, Patna Administration Committee,[9] in which the local level of government has the power to extend the territorial application of Bengal Municipal Act, 1884, to their respective jurisdiction as well.
Though the Indian Constitution does not bestow any inherent power on the legislature to transfer its rule-making power to the executive, at the same time, it does not prohibit them from delegating such power.[10] This is why it can be said that the whole realm of the constitutionality of delegated legislation lies with the interpretation of the constitutional provisions and it is the court’s duty to decide over any such matter in accordance with the jurisprudence which has been developed so far in the realm of the constitutionality of delegated legislation or the rule-making power of the executive.
Furthermore, in the landmark case of Re Delhi Laws Act,[11] the Supreme Court had dealt extensively with the aspect of the constitutionality of delegation of the legislative power of the legislature to the executive. In the said case, certain limitations/boundaries have been defined by the court, these are;[12]
- While delegating the law-making power of the legislature to the executive, parliament cannot create a parallel body for the said purpose. That is; the legislature cannot delegate all its functions to a different organ of the government.
- Delegation of power by the parliament is allowed, but, excessive delegation as defined by the constitutional courts is not permissible within the realms of delegated legislation.
- Only ancillary and not primary functions can be delegated by the legislature to an executive.
Thus, though the delegated legislations are permissible within the ambit of constitutional schema,, in order to ensure that no organ interferes with the primary functions of another organ, certain safeguards have been developed by the Supreme Court to balance the conflict between the needs of the society and functions of different organs of the government.
Parliamentary Control of Delegated Legislation:
One of the controls over delegated legislation is parliamentary or legislative control of delegated legislation, this is to make sure that the delegation does not lead to an excessive delegation which might become subject to arbitrariness at the hands of the executive.[13]
There are different types of legislative/parliamentary control of delegated legislation, these are;
(i) Memorandum on Delegation: Before passage of any law which delegates the authority of rule-making power of the parliament to an executive, requires that such law must predetermine the scope and extent of the power which is proposed to be bestowed upon the executive. Primarily these kinds of legislation contain a memorandum that explains the four corners of legislation and acts as the first stage of supervision over the actions of other organs of the government, that is; the executive.
(ii) Laying Procedure: This is one of the most practiced forms of control over delegated legislation where the laws made by the executive are required to be placed before the parliament for the purpose of getting it sanctioned by the competent authority. In this way, two purposes are served; firstly, the parliament through this process gets to know about what laws are framed by the executive within the power bestowed upon them under the ambit of the parent Act. And, secondly, it helps the parliament to discuss, deliberate, and scrutinize the concerned legislation in order to make sure that the delegation does not result in excessive delegation that ultimately leads to arbitrariness in the actions of the concerned executive.[14]
Moreover, there are different forms of laying procedure which can be specified by the legislature through the parent Act, these are;
- Laying Without Provision for Control in the hand of the Legislature: This type of laying procedure is comparatively considered as weak since the legislature does not reserve the right to discuss the provisions of delegated legislation. It is just to inform the legislature about the rules and regulations which are framed by the executive, this type of laying procedure is practiced.
- Laying but Subject to Annulment by the Parliament: Here, the delegated legislation comes into operation once they are placed before the parliament, but, in case if the concerned legislation has been disapproved by the legislature, in such situations, the said legislation ceases to exist.
- Laying the Draft before the Parliament: In this type of procedure, the concerned draft of rules and regulations framed by the executive does not come into effect unless it is approved by the parliament.
(iii) Scrutiny Committee: In order to reinforce the parliamentary supervision over delegated legislation in a much more holistic fashion, committees are established in both the houses of parliament and the primary purpose of both these committees is to scrutinize the rules framed by the executive. This is also done to reduce the time and burden on the shoulders of parliament.[15]
The primary function of each of these committees includes but is not limited to the following;
- To see the order passed by an executive is in accordance with the broad constitutional framework as well as to look over its validity with respect to the boundaries set forth by the parent Act itself.
- To look over the fact that such orders/rules/regulations/bye-laws do not bar the jurisdiction of courts in toto.
- To scrutinize the issue that such rules which are framed by the executive do not give the Act a retrospective operation which is not permissible as per the constitutional schema.
- Whether the executive had complied with the laying procedure as specified in the parent Act or not.
Conclusion and Suggestion:
If, as is the case in India, parliamentary control overlaps with delegated legislation, a powerful enough parliamentary committee and separate laws providing a uniform standard for laying down, and publishing requirements must be created and passed. A committee needs to have a separate body to assess whether the assigned work is being done correctly and efficiently. To avoid systemic disorder, each of the three organs should concentrate on their tasks and avoid taking unnecessary breaks. In parliamentary nations like India, the legislative power over the executive branch is more theoretical than actual. The control is actually not as effective as it should be. The administration, which has increased in bulk and complexity, is beyond the capacity and knowledge of the Parliament to manage, and the executive has legislative leadership which is heavily involved in creating policy. Moreover, The Parliament is too big and difficult to manage to be effective along with the fact that effective criticism is diminished by the executive’s majority backing in the Parliament.
As delegated legislation increased, Parliament’s ability to craft intricate laws was diminished and bureaucracy’s authority grew. Furthermore, Parliament’s oversight is infrequent, all-encompassing, and primarily political in nature. And, the ineffectiveness of legislative oversight over administration in India has also been attributed to the lack of vocal and consistent opposition in the Parliament. The number and complexity of the work are such that it is no longer possible to rely on such inspection, and there is no automatic apparatus for effective scrutiny on behalf of the entire Parliament.
If legislative oversight of delegated legislation in India is to be maintained over time, it is essential to improve the role of the Parliament’s committees and create a distinct statute, which establishes uniform laying and publication procedures. In order to increase the effectiveness of the committee’s oversight of delegated legislation, a specialized official body may be added. In addition, additional steps should be done to tighten Parliament’s oversight over delegated legislation. In comparison to the UK, parliamentary oversight of delegated legislation is less effective in the USA and India. The UK practically follows the laying off procedure because all administrative rules are under effective and meaningful scrutiny which is conducted by the parliamentary scrutiny committee.[16]
[1] Ishwar Singh v State of Rajasthan, (2005) 2 SCC 334.
[2] Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v Asstt. Commissioner of Sales Tax, A.I.R. 1974 S.C. 1660 (1667).
[3] Gopal Shankarnaraynan, The Constitution of India, EBC publication, 12th Ed.
[4] I.P Massey, Administrative Law, Eastern Book Company, 6th ed., 2005, p.102.
[5] CK Takwani, Lectures on Administrative Law, Eastern Book Company, 3rd ed., p.59.
[6] Treatise on Administrative Law, 1996, Vol.1, p.136.
[7] Delegated Legislation in India, ILI 1964, p.166-169.
[8] Laxmikanth, Public Administration, Tata MC-Graw-Hill Education, p.212.
[9] 1954 AIR 569.
[10] Kishan Prakash Sharma v Union of India, (2001) 5 SCC 212 : AIR 2001 SC 1493.
[11] 1951 AIR 332.
[12] CK Thakker, Administrative Law, Eastern Book Company, 1992, p.152.
[13] M.P.Jain, Parliamentary Control of Delegated Legislation in India, 1964 Public Law, p. 33, 152.
[14] Parliamentary Control of Delegated Legislation, Public Law, 1956, p.200.
[15] Lok Sabha Rules 317-322, Rajya Sabha rules 204-212
[16] Gary Slapper, The English System, Taylor & Francis, 2009, p.97
Author: Kumar Aditya,
School of Law, Bennett University, 4th Yr.
