Delegated Legislation

Control Mechanism
At Different Stages
General Introduction

At present, in almost all countries, the technique of

delegated legislation is resorted to and some legislative
powers are delegated by the legislature to the executive.
It must be conceded that currently legislative powers
can validly be delegated to executive within permissible
limits. At the same time, there is inherent danger of
abuse of the said power by executive authorities. The
basic problem, therefore is that of controlling the
delegate in exercising his legislative powers.
Contd….

III Report of Committee on Subordinate

Legislation (Ist Lok Sabha) in 1954 opined as—
Today the question is not whether delegated
legislation is desirable or not, but what controls
and safeguards can and ought to be introduced
so that the rule-making power conferred on the
Administration is not misused or misapplied.
The control at 2 stages

The control must be introduced at two stages:

first at the source, that is the safeguards must be
provided when the legislatures confers the
legislative power on the executive. Second, some
safeguards must be provided in case of misuse or
abuse of power by the executive.
Control over the Delegated
Legislation

Controls over the delegated Legislation may be

divided into 3 categories—
1. Judicial Control
2. Legislative Control
3. Other Controls
Judicial Control

Delegated Legislation does not fall beyond the

scope of Judicial Review and in almost all
democratic countries, it is accepted that courts
can decide the validity of delegated Legislation
mainly applying two tests:
1.Substantive ultra vires
2.Procedural ultra vires
Substantive ultra vires

When an Act of Legislature enacts in excess of power

conferred on the legislature by the Constitution, the
Legislation is said to be ultra vires the Constitution.
On the same principle, when a subordinate legislation
goes beyond what the delegate is authorised to enact
(and exceeds power conferred on it by the
legislature), it acts ultra vires. This is known as
substantive ultra vires.
All the decisions of the delegate, whether
characterised as legislative, ……..
Contd…

Administrative or quasi judicial, must be reasonably

related to the purposes of the enabling legislation. If
they are manifesly unjust or oppressive or outrageous
or directed to an unauthorised end or do not tend in
some degree to the accomplishment of the objects of
delegation, court might well say, “Parliament never
intended to give authority to make such rules; they
are unreasonable and ultra vires.” –As in Sitaram
Sugar Co. Ltd. V. Union of India AIR 1990 SC 1277
ground of Substantive ultra vires

Delegated Legislation may be held invalid on the

ground of substantive ultra vires in the following
circumstances:
1. Where parent Act is unconstitutional
2. Where parent Act delegates essential legislative
function
3. where delegated legislation is inconsistent with
parent Act
4. Where delegated legislation is inconsistent with
general law
Contd…

5. Where delegated legislation is unconstitutional

6. Where delegated legislation is arbitrary
7. Where delegated legislation is unreasonable
8. Where delegated legislation is mala fide
9. Where delegate further delegates
10. Where delegated legislation excludes judicial
review
11. Where delegated legislation operates
retrospectively
Procedural ultra vires

When a subordinate legislation fails to comply with

procedural requirements by the parent Act or by a
general law, it is known as procedural ultra vires.
While framing rules, bye-laws, regulations
etc. the parent Act or enabling statute may require
the delegate to observe a prescribed procedure,
such as holding of consultations with particular
bodies or interests, publication of draft rules or
bye-laws, laying them before Parliament etc.
Contd…

It is incumbent on the delegate to comply

with these procedural requirements and to
exercise the power in the manner indicated by
the legislature. Failure to comply with the
requirement may invalidate the rules so framed.
Generally, non- compliance with a directory
provision does not invalidate subordinate
legislation but failure to observe a mandatory
and imperative requirements does.
Procedural requirements-
discussion

The following 2 procedural requirements are important

to be complied with properly-
1. Publication
2. Consultation
Publication- Object- All laws ought either to be
known or at least laid open to the knowledge of all the
world, in such a manner, that no one may with impunity
offend against them, under pretence of ignorance.
It is essential therefore, that adequte means are adopted
to publicise ……….
Contd.

delegated legislation so that people are not caught on the

wrong foot in ignorance of the rules applicable to them in a
given situation. The system of publication ought to be such
that delegated legislation is not only made known to the
people, but it is also easy to locate as and when necessary.
Unlike in England and in US, there is no statutory
provision requiring publication of delegated legislation. Yet
the courts have treated some sort of publication of
delegated legislation as an essential requirement for its
validity.
Defect in Publication-
Consequence

There is a difference between publication of

delegated legislation and the mode of such
publication. If delegated legislation is not published
at all, the defect goes to the root and makes the
instrument non est, ineffective and of no
consequence. But if it is not published in particular
manner, it would not necessarily make the
instrument void. Effect to publish in the manner
provided by law would be considered by the court.
Consultation

One of the techniques adopted by courts to

control exercise of power by executive against
abuse of power is the process of consultation
with affected interests before delegated
legislation or statutory instrument is prepared. It
is indeed a visible safeguard against possible
misuse of power by the rule-making authority.
Benefits of consultation

This process of exchange of ideas is beneficial to

both- to the affected interests itself insofar as they
have an opportunity to impress on the authority their
point of view; and to the rule making authority
insofar as it can gather necessary information
regarding the issues involved and thus be in a better
position to appreciate a particular situation.
A consultative technique is useful in balancing
individual interests and administrative exigencies.
Certain Heads of Consultation in
India

In India there is no general statutory provision

requiring consultation with affected interests in the
making of delegated legislation. But some statutes
specifically provide for consultation which fall under
the following heads:-
Official Consultation- The rule-making power is
delegated subject to a stipulation that it is to be
exercised in consultation with a named official
authority or agency e.g. the Central Government is
required to make rues under
Contd….

Section 52 of the Banking Companies Act, 1949

after consulting the Reserve Bank of India.
Consultation with Statutory bodies: In certain
statutes, the rule making power is conferred on
the Central Govt. which can be exercised after
consulting the Boards concerned, e.g. the Central
Govt. is empowered to make rules under section
6 and 12 of the Drugs Act, 1940 after consulting
the Drugs Technical advisory Board.
Contd….

Consultation with Advisory bodies: Under some statutes

advisory bodies are constituted to assist the Central Govt. or
other subordinate authorities in framing rules. Thus Mining
Boards are constituted under the Indian Mines Act, 1901 to
assist and advise the government in making rules.
Draft rules by affected interests: In some cases the power to
frame rules is directly conferred on the affected interests
e.g. Under S. 61 of Indian Mines Act, 1961 the power is
conferred on the owner of a mine to frame and submit draft
of bye-laws for prevention of accidents and for safety of
those employed in the mines.
Legislative Control

If Parliament delegates legislative powers 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.
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.
Object of Legislative 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 on their part. This
mechanism is described as “legislative veto”.
Modes of Legislative Control

Legislative Control can be effectively exercised by-

1. Laying on table and
2. Scrutiny Committees

Laying on table:- This mode of control 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
the opportunity to the legislators to question or challenge
the rules already made or proposed to be made.
Effect of Laying

Where the Parent Act requires mere laying of rules

before Parliament, they come into force as soon as they
are made and no further action is necessary. If the Parent
Act provides for annulment of rules by Parliament, the
rules come into force immediately but cease to be
operative if disapproved by Parliament.
But if the Act provides draft rules to be placed before
parliament requiring affirmative action by the latter,
“positive” action is a condition precedent and rules come
into force only after they are approved by the House.
Scrutiny Committees

With a view to strengthening parliamentary control

over delegated legislation, Scrutiny Committees are
established.
In India there are 2 Scrutiny committees-
1. Lok Sabha Committee on Subordinate Legislation
2. Rajya Sabha Committee on Subordinate
Legislation
Function of Scrutiny Committee – The function is
“to scrutinise and to report to the respective Houses
whether the powers to …..
Contd…

make regulations, rules, sub-rules, bye-laws etc.,

conferred by the Constitution or delegated by
Parliament are being properly exercised within
such delegation.
Other Controls

Over and above judicial and parliamentary controls,

sometimes other controls and safeguards are also provided.
One such safeguards against the abuse of delegated power is
to properly and precisely limit the power of the delegate.
The courts should also interpret the provisions of rules
and regulations in such a manner as not to give blanket
powers to the executive authority.
It is also argued that delegation of power should be
conferred only on trustworthy authorities e.g. Central Govt.
state Govt. etc. so that these authorities will be exercising
power reasonably.