How does the Parliament in India Control Delegated Legislation?

In India, the question of control on rule-making power engaged the at­tention of the Parliament. Under the Rule of Procedure & Conduct of Business of the House of the People provision has been made for a Committee which is called ‘Committee on Subordinate Legislation’.

The First Committee was constituted on 1st December, 1953 for-

(i) Examining the delegated legislation, and

(ii) Pointing out whether it has-

(a) Exceeded or departed from the original intentions of the Parliament, or

(b) Effected any basic changes.

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Originally, the committee consisted to 10 members of the House and its strength was later raise to 13 members. It is usually presided over by a member of the Opposition. The Committee:

(i) Scrutinizes the statutory rules, orders, bye-laws, etc., made by any-making authority, and

(ii) Report to the House whether the delegated power is being properly exercised within the limits of the delegated authority, whether under the Constitution or an Act of Par­liament.

It further examines whether:

(i) The Subordinate legislation is in accord with the general objects of the Constitution or the Act pursuant to which it is made;

(ii) It contains matter which should more properly be dealt within an Act of Parliament;

(iii) It contains imposition of any tax;

(iv) It directly or indirectly, ousts the jurisdiction of the courts of law;

(v) It gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not ex­pressly confer any such power;

(iv) It is constitutional and valid;

(vii) In involves expenditure from the Consolidated Fund of India or the Public Revenues;

(viii) Its form or purpose requires any elucidation for any reason;

(ix) It appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made; and

(x) There appears to have been unjustifiable delay in its publi­cation or its laying before the Parliament.

The Committee of the first House of the People submitted a number of reports and continues to do useful work. The Committee considered the question of bringing about uniformity in the provisions of the Acts delegating legislative powers.

It made certain recommendations in its First report (March, 1954) which it later modified in its Third Report (May, 1955) after noting the existing divergent practices, due to recent character of the Parliament control of delegated legislation in India. The following are the modified recommendations:

1. That, in future, the Acts containing provisions for making rules, etc., shall lay down that such rules shall be laid on the Table as soon as possible.

2. That all these rules shall be laid on the Table for a uniform and total period of 30 days before the date of their final publication.

But where it is not deemed expedient to lay any rule on the Table before the date of publication, such rule may be laid as soon as possible after publication.

An Explanatory Note should, however, ac­company such rules at the time they are so laid, explaining why it was not deemed expedient to lay these rules on the Table of the House before they were published.

3. That, in future, the Acts authorising delegation of rule­making power shall contain express provisions that the Rules made there under shall be subject to such modifications as the House may like to make.

On the recommendation of the Committee, the Bills are general­ly accompanied with Memoranda of Delegated Legislation in which (i) full purpose and effect of the delegation of power to the subor­dinate authorities, (ii) the points which may be covered by the rules, (iii) the particulars of the subordinate authorities or the persons who are to exercise the delegated power, and (iv) the manner in which such power has to be exercised, are mentioned.

They point out if the delegation is of normal type or unusual.

The usefulness of the Committee lies more in ensuring that the standards of legislative rule-making are observed that in merely for­mulating such standards. It should effectively point out the cases of any unusual or unexpected use of legislative power by the Executive.

Parliamentary control of delegated legislation is thus exercised by:

(i) Taking the opportunity of examining the provisions provid­ing for delegation in a Bill, and

(ii) Getting them scrutinised by parliamentary committee of the Rules, Regulations, Bye-laws and orders,

When the Bill is debated:

(i) The issue of necessity of delegation, and

(ii) The contents of the provisions providing for delegation can be taken up.

After delegation is sanctioned in an Act, the exercise of this power by the authority concerned should receive the attention of the House of the Parliament. Indeed, it is this later stage of parliamentary scrutiny of the delegated authority and the rules as framed in its exer­cise that is more important.

In a formal sense, this is sought to be provided by making it necessary that the rules, etc., shall be laid on the Table of the House.

The members are informed of such laying in the daily agenda of the House. The advantage of this procedure is that members of both the Houses have such chances as parliamentary procedure and arrangements afford of passing for-

(1) The modification or the repeal of the enactment under which obnoxious rules and orders are made, or

(ii) Revoking rules and orders themselves.

The matter may be discussed in the House during the debates or on special motions.

The provisions for laying the rule, etc., are being made now practically in every Act which contains a rule making provision. Such provisions are enacted in the following form:

(1) The Government may by notification in the official Gazette, make rules for carrying out all or any of the purposes of this Act.

(2) Every rule made under this section shall be laid, as soon as may be, after it is made, before each House of Parliament while it is in session for a total period of fourteen days which may be comprised in one session or in the successive sessions, and, if, before the expira­tion of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or in the annulment of the rule, the rule shall thereafter have effect only in such modified form or shall stand annulled, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.