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CONTROL MECHANISM OVER DELEGATED LEGISLATION

INTRODUCTION

The tendency of just a relatively small portion of the overall legislative output coming directly from the Legislature is now highly popular in all democratic countries. As a delegate of the Legislature, the Executive promulgates most of the laws; this is referred to as “delegated legislation”.[1] “That which proceeds from any authority other than sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority,” according to Salmond, is the definition of the phrase.[2]

To implement the Act’s policy, the Legislature frequently finds it expedient and essential to provide delegates of their choosing subsidiary or supplementary authorities.[3] No legislature in a democracy has exclusive control over all legislative decisions; instead, this authority is shared with the executive and other governing bodies. Since there are so many different types of delegated legislation, reading the statutory text without also reading the delegated legislation that complements and enhances it would leave it inadequate and even deceptive.[4] Furthermore, it is a well-established legal concept that the delegated party has to exercise its authority inside the bounds of its delegation.[5] If a delegated party  has gone beyond that, his actions lack legal standing unless the delegator approves of them.[6] Legislation that is delegated should encourage responsible and logical policy execution.[7] No action taken by a delegate may be against the law. A sub-delegate cannot use any authority that has not been granted to him by legislative restrictions. It must be compliant with all legislative Acts as well as the rules set out in the laws and the legislation.[8]

The legislature has extensive delegation authority. This, however, is constrained in one way namely, it cannot transfer unchecked authority. Only when it is restricted to parliamentary rules and regulations, delegation is valid.[9] There are several flaws in the delegated legislation system, therefore it is not entirely faultless. It does, to a certain extent, entail the Legislature giving up its legislative role and giving the Administration more power. As a result, the Executive is given the responsibility for putting together and deciding rules and principles about the issue at hand of legislation. The Legislature frequently approves legislation in a “skeleton” structure, featuring only the most basic principles in general.

CONTROL MECHANISM: A RESTRAINING HAND

The controls over delegated legislation operate at two levels.

  • (a) By the Legislature: At the point of delegation.
  • (b) By the Administration: At the point of the exercise of delegated power.

In this article, we will understand the control of delegated legislation by the legislature or in other words legislative control.

LEGISLATIVE CONTROL

In a democracy governed by parliament, the legislative body’s role is to pass laws. If, for any reason, it wishes to transfer this authority over to the executive branch, the legislative body has the right—and even the duty—to monitor how its designated representative, the executive, executes the task assigned to it. Since legislators are the one who authorises the executive branch legislative authority, it is mainly up to the legislative body to ensure proper delegation of that authority, monitor and control how that authority is used, and guard against the risk of objectionable, obnoxious or inappropriate application by the executive branch. In its enthusiasm to attain the intended aims, the delegated authority might not constantly grasp the need of the public and occasionally disregard freedoms enjoyed by individuals; it may place a higher priority on convenience in administration than on human rights.

Legislation should effectively oversee and rectify the development of administrative rules. Based on this principle, India has established a comprehensive system of parliamentary oversight of delegated laws.

This approach has two key components:[10]

  • Laying of delegated legislation before the Legislature.
  • Scrutiny of delegated legislation by a legislative scrutiny committee.

STATEMENT OR MEMORANDUM OF DELEGATION

At the time of delegation by Parliament, the first step in the process of legislative authority over delegated legislation is taken. Each House of Parliament’s rules of procedure state that any legislation that proposes the delegation of legislative authority must be “accompanied by a memorandum explaining such proposals and drawing attention to their scope, and stating also whether they are of exceptional or normal character.”[11] The memo’s goal is to draw lawmakers’ notice towards the bill’s clauses relating to the delegation of legislative authority.[12]

LAYING

After the rules are made the Parliamentary control is achieved by the mechanism of the ‘laying procedure.’ The fundamental tenet is that for Legislation to exert any control, the Houses of Parliament must be informed of the details of the delegated legislation that the administration periodically makes by numerous statutes. Garner claims that the purpose of the laying procedure is to “potentially notice” the members of Parliament about the legislative proposals.[13] According to the wording of each delegated act, the regulations issued according to that statute must be submitted before the Houses or not. The necessary delegated legislation must be placed per the statute if it has a laying provision; if not, the government may choose whether to do so.

In legislation, this method might take one of three primary forms:

Simple Laying: Here, the only need is to present the regulations to Parliament.

Laying with annulment: Here, the regulations are set down in draught form and may be revoked by a House resolution. This approach is called negative laying.

Laying subject to affirmation: Here, the Houses are shown a draft of the rules. When the Houses approve resolutions establishing the rules, they take effect.

  • The last iteration of the laying mechanism is the most successful from the perspective of legislative control over delegated laws since in this case, the Houses must accept the proposed regulations before they take effect. This implies that the draft rules must be discussed in the two Houses.[14]
  • “There are several ways to lay anything before the legislature. The regulations might only need to be laid; they might also be subject to a negative resolution within forty days; they might also expire unless they are affirmed by an affirmative resolution; or they might even need to be laid in draught form. There are times when they do not need to be laid at all since Parliament has not made any provisions.”[15]
  • The Supreme Court noted that there are three alternative procedures to lay before the Houses of Parliament in Quarry Owners’ Assn. v. State of Bihar.[16] Any rule that is laid down may be susceptible to confirmation or to any negative resolution that is made within a given time frame. This is referred to as either a negative or positive resolution. The third could just include presenting it before the House.

SCRUTINY BY PARLIAMENTARY SCRUTINY COMMITTEE

By itself, the laying process does not provide a strong enough legislative oversight. Everything in the current negative resolution mechanism used in India hinges on each member of Parliament being vigilant. Allen said it so well: “It lies, then, in the realm of constitutional fiction to say that Parliament exercises any effective safeguards over delegated legislation.”[17] Two Committees on Subordinate Legislation have been created, one in each House of Parliament, to improve the effectiveness of parliamentary oversight of over-delegated legislation.[18] It was considered that these committees were necessary since just presenting rules to a House would not be very effective without a way to carefully review them.

CONCLUSION

If Parliamentary control overlaps with delegated legislation, a powerful enough parliamentary committee and separate laws providing a common standard for laying down and publishing requirements must be created and approved. To assess whether the task being delegated is being done correctly and successfully, a committee must have a particular body. To keep the system from becoming chaotic, all three organs should concentrate on their tasks and avoid taking unnecessary breaks. Legislative delegation must be effectively controlled, first now of delegation and secondarily via oversight of how such delegations are carried out, by the legislature itself. The requirement for public participation in the rule-making process is equally crucial. In a democratic society, the government must consider the needs and opinions of individuals whose lives its regulations will affect.[19]

Author(s) Name: Vidhi Maheshwari (Sharda University, Greater Noida)

Reference(s):

[1] MP Jain & SN Jain, Principle of Administrative Law (6th Edn, 2013)

[2] Salmond, Jurisprudence, (12th Edn, p. 116)

[3] Vasanlal Manganbhai v. State of Bombay, AIR 1961 SC 4

[4] Carr, Concerning English Administrative Law (1941)

[5] Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705

[6] Rasid Javed v. State of U.P., (2010) 7 SCC 781

[7] Global Energy Limited v. Central Electricity Regulatory Commission, (2009) 15 SCC 570

[8] Life Insurance Corporation of India v. Retired LIC Officers Association, (2008) 3 SCC 321

[9] J.K. Industries Limited v. Union of India, (2007) 13 SCC 673

[10] M.P. JAIN, Parliamentary Control of Delegated Legislation in India, 1964 Public Law 33, 152.

[11] Rules of Procedure and Conduct of Business in Lok Sabha, Rule 70, Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), Rule 65.

[12] First Report (I L.S.), 1 (1954), Second Report (III L.S.), 1 (1954).

[13] Garner, Administrative Law, 60 (1985).

[14] Parliament & Delegated Legislation in Nethercote, Parliament & Bureaucracy, 149-168 (1982).

[15] Wade & Forsyth, Administrative Law, 8th Edn., p. 878.

[16] Quarry Owners’ Assn. v. State of Bihar, AIR 2000 SC 2870

[17] Allen, Law, and Orders, 135.

[18] Lok Sabha Rules 317 – 322, Rajya Sabha Rules 204 – 212.

[19] Control Mechanism over Delegated Legislation, IJCRT, Vol. 6, Issue 2, April 2018.