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VOLUME 1 ISSUE 1 2020

BURNISHED LAW JOURNAL

Archita Satsangi

B.B.A. LL.B. (Hons).with specialization in Corporate Laws

School Of Law, University of Petroleum and Energy Studies, Dehradun

Controlling Mechanisms of Rule- Making in India

Abstract

Administrative law as a separate branch of legal discipline especially in India, it came to be

recognised very recently in the middle of 20th century. This branch of law is considered to be the

bye-product and of socio-economic functions of the state and the increased powers of the

government. This law basically enmates from an authority other than the soveriegn and is

dependent for its continued existence on some supreme authority. Scholars in this field have

presented quite contradicting views about delegation of power to legislate or execute and thus

giving rise to various stands in this issue.

One of the most significant development in present century is accounted to the growth of

legislative power of administrative authorities in the form of delegated legislation, though this

concept is presently treated as an evil but it should be understood that this is the need of the hour.

Delegated legislation basically refers to the law making undertaken outside the legislatures and

are expressed as rules, bye-laws, regulations, orders, schemes etc.

This paper seeks to analyze various forms of parliamentary control on delegated legislation in

varous stages and also how is it beneficial in the present modern times. This paper is basically a

doctrinal research work which has descriptive cum analytical approach.

Keywords: Administrative Law, Delegation, Parliamentary Control

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INTRODUCTION TO RULE MAKING IN INDIA

The Rule-making is the process that executive and independent agencies use to create, or

promulgate regulations. In general, legislatures first set the broad policy mandates by passing

statutes, and then agencies create more detailed regulations through rulemaking.

By bringing detailed scientific and other types of expertise to bear on policy, the rulemaking

process has been the means by which some of the most far-reaching government regulations of

the 20th Century have been created. For example, “science-based regulations are critical to

modern programs for environmental protection, workplace safety and food safety. However, the

growth in regulations has fueled criticism that the rulemaking process reduces the transparency

and accountability of democratic government”.1

Legislatures fully rely on rulemaking to add more detailed scientific, economic or industry

expertise to a policy- fleshing out the broader mandates of authorizing legislation. For example,

typically a legislature would pass a law mandating the establishment of safe drinking water

standards, and then assign an agency to develop the list of contaminants and safe levels through

rulemaking. The rise of the rulemaking process itself is a matter of political controversy. Many

find that obscure and complex rulemaking tends to undercut the democratic ideal of a

government that is closely watched by and accountable to its citizens.

1 Schoenbrod, David (2008). "Delegation". In Hamowy, Ronald. The Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE; Cato Institute. pp. 117–18. doi:10.4135/9781412965811.n74. ISBN 978-1412965804. LCCN 2008009151. OCLC 750831024. ...[L]egislators can claim credit for the expected benefits..., but shift blame to the agency for the costs and disappointed expectations ....”



Although executive agencies are usually charged with executing, not promulgating a regulatory

scheme, the breadth and depth of regulation today renders it utmost difficult, if not possible, for

legislatures to specify the details of modern regulatory schemes. As a result, the specification of

these details are mostly delegated to agencies for rulemaking.

With the growth of the administrative process in the 20 th century, administrative rule-making or

delegated legislation has assumed tremendous proportions and importance. Today, the bulk of

the law which governs people comes not from the legislature but from the chambers of

administrators. The fact is that the direct legislation of parliament is not complete, unless it is

read with the help of rules and regulations framed thereunder; otherwise by itself is becomes

misleading.

In the present day context of free market economy, there has been a tremendous growth of

administrative and regulatory forces which has made outsourcing of law-making power to the

administrative authority a compulsive necessity. Therefore, legislature limits its functions to

merely laying down policies and guidelines of the law, outsourcing all ancillary law-making

power to the administrative authorities to make law relevant to the needs of the people.

Delegated Legislation is often described as that which proceeds from any authority other than the

sovereign power and is, therefore dependent for its continued existence and validity on some

superior or supreme authority. This dependence can often take the form of checks and controls,

namely,

• parliamentary or legislative control;

• procedural control and

• Judicial control.

Delegated Legislation is not a new phenomenon. Ever since the statutes came to be made by the

parliament, delegated legislation also came to be made by an authority to which the power was

delegated by parliament.

The basis of need matrix of administrative rule-making lies in the fact that the complexities of

modern administration are so baffling and intricate and bristle with details, urgencies,

difficulties, and a need for flexibility that our massive legislatures may not get off to a start if



they must directly and comprehensively handle legislative business in all their plenitude,

proliferation and particularization. Therefore, the delegated legislation of some part of legislative

power becomes a compulsive necessity for viability.

DELEGATED LEGISLATION

The term “Delegated Legislation” is difficult to define, However, if defined in a simple way,

delegated legislation refers to all law-making which takes place outside the legislature and is

generally expressed as “rules, regulations, bye-laws, orders, schemes, directions or notifications,

etc. in other words, when an instrument of a legislative nature is made by an authority in exercise

of power delegated or conferred by the legislature, it is called subordinate legislation or

delegated legislation”.2

Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or

empowering another to act as an agent or representative’. E.g. Delegation of Contractual Duties.

The Dictionary further defines ‘Doctrine of Delegation’ as:

“The Principle (based on the Separation of Powers Concept) limiting Legislature’s ability to

transfer its legislative power to another Governmental Branch, especially the Executive Branch.”

‘Subordinate Legislation’ has been defined as:

“Legislation that derives from any authority other than the Sovereign Power in a state is the one

that depends for its continued existence and validity on some superior or supreme authority3.”

2 Halsbury’s Laws of England, Vol. 44 (4th Edn.) 981-843 Zenab Ali, Delegated Delegation, SCRIBD, (June ,2019) https://www.scribd.com/document/400627531/Delegated-Delegation



“Delegation of powers means the powers passed on by the higher authority to the lower authority

to make laws. Delegated legislation means the powers given by the legislature to the executive or

administration to enact certain laws. The simple meaning of the expression “delegated

expression”4 may be:

When the function of the legislation is entrusted to organs other than the legislature by

the legislature itself, the legislation made by such organs is known as delegated legislation.

According to M.P. Jain, “the term ‘delegated legislation’ is used in two senses: (a) exercise by a

subordinate agency of the legislative power delegated to it by the legislature, or (b) the

subsidiary rules themselves which are made by the subordinate authority in pursuance of the

power conferred on it by the legislature .”

The concept can be further substantiated with the help of an example. “The Parliament of UK

itself made the Road Traffic Act, 1930, and so the legislation is original (rather than delegated).

Section 30 of that Act provides that, “the Minister [of Transport and Civil Aviation] may make

regulations as to the use of motor vehicles, their construction and equipment.” Accordingly the

Minister made the Motor Vehicles (Construction and Use) Regulations, 1955”5. The regulations

were made by someone other than Parliament and are, therefore, delegated (rather than original)

legislation.

Delegated legislation, also referred to as secondary legislation, is legislation made by a person or

body other than Parliament. Parliament, through an Act of Parliament, can permit another person

or body to make legislation. An Act of Parliament creates the framework of a particular law and

tends only to contain an outline of the purpose of the Act. By Parliament giving authority for

legislation to be delegated it enables other persons or bodies to provide more detail to an Act of

Parliament. Thereby through primary legislation (i.e. an Act of Parliament), permit others to

make law and rules through delegated legislation. The legislation created by delegated legislation

must be made in accordance with the purpose laid down in the act.

4 Akhil Ahuja, Administrative Law-Delegated Legislation, SCRIBD (June, 2019),https://www.scribd.com/document/322989906/Administrative-Law-Delegated-Legislation.5 Amit Kumar, Delegated Legislation Development and Parliamentary Control, LEGALSERVICES, (July, 2019), http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-Parliamentary-Control.html.



Delegated Legislation is often criticized as an excuse for the legislators, a shield for the

administrators and a provocation for the Constitutional Purists. However, the very mechanism of

delegated legislation cannot and should not be reduced to an evil because it is at the end of the

day a necessity. In the modern world where social, economic, technological and administrative

speed outstrips the placid tradidtional legislative processes, delegated legislation is an essential

means of survival. Thus, since it is the legislature which delegates power, it is primarily for it to

supervise and control the exercise of this power, and ensure against its objectionable, abusive &

unwarranted use.

HISTORY OF DELEGATED LEGISLATION IN INDIA

a. Pre – constitutional Position:

The history of delegation of powers can be traced from the charter stage of 1833 when the East

India Company was regaining political influence in India. “The year of 1833 vested the

legislative powers exclusively in Governor General-in council, which was an executive body. He

was empowered to make laws and regulations for repealing, amending or altering any laws or

regulations, which were in force for all persons irrespective of their nationality”6. In 1935 the

Government of India Act, 1935 was passed which contained an intensive scheme of delegation.

The report of the committee on ministers’ powers was submitted and approved which fully

established the case for delegation of powers and delegation of legislation was regarded as

inevitable in India.

b. Present Position:

Though, our constitution was based on the principal of separation of powers, a complete

separation of powers was not possible hence it maintained the sanctity of the doctrine in the

modern sense. “The Indian Constitution does not prohibit the delegation of powers. On the other

hand there are many provisions where the executive has been granted the legislative powers. For

example the legislative powers of the president under the Indian Constitution are conspicuous.”7

6 Raunak, Delegation of Powers and its Limitations, ANTIESSAYS (June, 2019), https://www.antiessays.com/free-essays/Delegation-Of-Powers-And-Its-Limitations-107097.html.7 Swathi Raman, Delegation of Power and its Limitations, SCRIBD (June, 2019), https://www.scribd.com/document/59608640/Delegation-of-Power-and-Its-Limitations.



Under Article 123 the President of the country has the power to promulgate the ordinances and

unrestricted power to frame regulations for peace progress and good government of the union

territory under article 240. The Apex Court has also upheld the delegation of legislative powers

by the legislative to the legislative to the executive in the case of Raj Narayan Singh v. Chairman

Patna Administration Committee.8

CONTROL OF DELEGATED LEGISLATION

Control and safeguards should be exercised so that advantage could be available, while the

dangers and risks of abuse inherent in it may be minimized.

The question today isn’t whether there should be delegated legislation, but subject to what

safeguards it should be resorted to.

Such Control operate at two level:

First: at the point of delegation of power by the legislature; the question here is, how much

power should the legislature be permitted to delegate?

Second: at the point of exercise of delegated power by the administration; the question here

being subject to what restraints and safeguards the delegate function in exercising the delegated

powers should?

It is the control at the second level i.e. the supervision over DL rather than over delegating

legislation that is more important.

The control mechanism of delegated legislation comprises of parliamentary control, procedural

control (consultation, publication etc.) and judicial control. The main thrust of such control is to

ensure that the limits of delegation are precisely defined, the delegated power is properly

exercised and the delegated legislation is adequately published.

8 AIR 1954 SC 569



Parliamentary Control

It is not only the right of the legislature, but also its duty, as principal to see how its agent

(executive) carries out the agency entrusted to it. In India the parliamentary control is implicit as

a normal constitutional function because the executive is responsible to parliamentary.

There are three major types of parliamentary control in India:-

(1)- Direct general Control- it is exercised through debate, questions, and notices, moving

resolutions, etc., by which the necessity, extent and type of delegation all these matters are

scrutinized by MPs.

(2)-Direct Special Control- it is exercised through the technique of ‘laying’ on the table of the

house rules and regulations, framed by administration.9

There is another parliamentary control which is exercised at the stage of delegation. A rule of

procedure of each House of parliament requires that a bill involving proposal for delegation shall

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. But, in practice, the

memorandum are usually scrappy, of a routine nature and not very informative.

‘Laying’ comes into play after the rules are made, and it takes three major forms:-

(a) Simple laying (laying without further procedure or direction)

(b) Laying Subject to negative resolution

(c) Laying Subject to affirmative resolution

Thus this procedure is sparingly used and is reserved to cases where the order almost amounts to

an Act by affecting changes which approximate to true legislation.

(3)- Indirect control-

“This control is exercised by Parliament through its committees. The functions of the committee

shall be to examine-

9 Atlas Cycle Industries Ltd. v. State of Haryana



● Whether rules are in accordance with the general object of Act

● Whether it contains imposition of taxes

● Whether it directly or indirectly bars the jurisdiction of Court.

● Whether there has been unjustified delay in its publication or laying.

● Whether the rules contain any matter which could more properly be dealt with in the

act.”10

Procedural Control

Procedural control like publication, consultation, etc. besides providing effective vigil, can

guarantee effective people participation for better social communication, acceptance and

effectivity of the rules. Procedural control mechanism allows specific audit of rules by those for

whose consumption they are made.

In a case11 the question was whether the notification issued under Sec. 6(5) of Gujarat

Agricultural Produce Markets Act, 1964, covering additional varieties of agriculture produce

(like ginger and onion), must not only be published in official Gazette but also be published in

Gujarati in a newspaper. The relevant provision of the said Act was, ‘ a notification under this

section (i.e sec 6) shall also be published in Gujarati in a newspaper having circulation in the said

area”. It was contended that the requirement regarding the publication in Gujarati is directory

and not mandatory, despite the use of word ‘shall’; that word really means ‘may’.

Several tests have been propounded in decided cases for determining the question whether a

provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on

this matter. In each case one must look into the subject matter and consider the importance of the

provision disregarded and the relation of the provision to the general object intended to be

secured.

10 Amit Kumar, Delegated Legisation Development and Parliamentary Control, LEGALSERVICES (July, 2019), http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-Parliamentary-Control.html.11 Govind Lal v AGR. P.M. committee



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 court held that “some rules,” as said in Thakur Pratap Singh v Shri Krishna (AIR 1956 SC

140) “are vital and go to the root of the matter: they cannot be broken.” The words of the statute

here must therefore be followed punctiliously. The notification issued under sec. 6(5) as not

published in newspaper at all, much less in Gujarati, is invalid. Further, failure to publish in a

gazette can’t be cured by a clause making such defect of irregularity in an Act non-

challengeable.

In another case12, the rules for the levy of a rate on building/lands were held to be ‘published’

under sec.77 of the Bombay Municipal Boroughs Act, 1925 when the notice published in a

newspaper reciting the sanction of the state government to the rules mentions that rules

themselves are open to inspection in the municipal office and that copies of the rules can also be

purchased there.

The mandatory requirement of sec.77 was that rules should be published and 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. Had the

act itself specified the mode in which the rules were to be published, that mode would have to be

adopted for publishing the rules, but the act is silent as to this.

Judicial control

Judicial Control over Delegated Legislation is exercised at following 2 levels:-

1. Delegation may be challenged as unconstitutional; or

2. The Statutory power has been improperly exercised.

“The delegation can be challenged in the courts of law as being unconstitutional, excessive or

arbitrary. The scope of permissible delegation is wide enough. Within the wide limits, delegation

is sustained it does not otherwise; infringe the provisions of the Constitution. The limitations

imposed by the application of the rule of ultra vires are quite clear. If the Act of the Legislature

12 Sonik Industries, Rajkot v Municipal Corporation, Rajkot



under which power is delegated, is ultra vires, the power of the legislature in the delegation can

never be good. No delegated legislation can be inconsistent with the provisions of the

Fundamental Rights”13. If the Act violates any Fundamental Rights the rules, regulations and

bye-laws framed there under cannot be better. Where the act is good, still the rules and

regulations may contravene any Fundamental Right and have to be thereby struck down. Besides

the constitutional attack, the delegated legislation may also be challenged as being ultra vires the

powers of the administrative body framing the rules and regulations.

The validity of the rules may be assailed as the stage in 2 ways:-

1. That they run counter to the provisions of the Act;

2. That they have been made in excess of the authority delegated by the legislature.

Illustrative cases: Kruse. v. Johnon 14- “It was laid down that a bye-law would be unreasonable

if it is found to be (i) disclosing bad faith; (ii) partial or unequal i.e. its operation as between

different classes; (iii) manifestly unjust:; and (iv) involving such oppressive or gratuitous

interference with the right of the people that it could find no justification in the minds of

reasonable men.”15

Chadran v. R.16: “A rule or bye-law must be within the power entrusted to the legislature. For

example an Act of the U.P. state was devised to control the transport of goods and passengers by

ferries and authorized the Commissioner to make rules for the safety of the passengers and

property. But actually the Commissioner forbade the establishment of private ferries within a

distance of two miles from another ferry. That rule was struck down.”17

EFFECTIVENESS OF CONTROLLING MECHANISM OVER DELEGATED

LEGISLATION

One of the most significant developments of the present century is the growth in the legislative

powers of the executive. “The development of the legislative powers of the administrative

13 Shailaja B, The Judicial Control over Delegated Legislation in India, SHAREYOURESSAYS, (Jun,2019), http://www.shareyouressays.com/knowledge/the-judicial-control-over-delegated-legislation-in-india/111367.14 [1898] 2 QB 91.15 Id.16 (1952) Alld. 793.17 Gagan Singh Parmar, Controls on Delegated Legislation, SCRIBD, (July, 2019), https://www.scribd.com/document/260725450/Admin-Law-Final.



authorities in the form of delegated legislation occupies very important place in the study of the

administrative law. We know that there is no such general power granted to the executive to

make law; it only supplements the law under the authority of legislature. Such type of power is

known as delegated legislation.”18

“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 of power on their

part. Parliament has control in that the enabling or parent Act passed by Parliament sets out the

framework or parameters within which delegated legislation is made. In India, the question of

control on rule-making power engaged the attention of the Parliament.”19

“Every delegate is subject to the authority and control of the principal and the exercise of

delegated power can always be directed, corrected or cancelled by the principal. Hence

parliamentary control over delegated legislation should be a living continuity as a constitutional

remedy.”20 The fact is that due to the broad delegation of legislative powers and the generalized

standard of control also being broad, judicial control has shrunk, raising the desirability and the

necessity of parliamentary control.

With regard to the control of the legislature over delegated legislation, M.P. Jain states: “In a

parliamentary democracy it is the function of the legislature to legislate. “If it seeks to delegate

its legislative power to the executive because of some reasons, it is not only the right of the

Legislature, but also its obligation, as principal, to see how its agent i.e. the Executive carries out

the agency entrusted to it”21. 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 the

danger of its objectionable, abusive and unwarranted use by the administration.”22

18 Rahul Singh, Delegated Legislation, UPSC (July, 2019), https://upsc.oureducation.in/delegated-legislation/.19 Aberham Yohannes, The Nature and Definition of Delegated Legislation,ABYSSINALAW (July, 2019), https://www.abyssinialaw.com/about-us/item/309-the-nature-and-definition-of-delegated-legislation. 20 Legalbharat, Effectiveness of Parliamentary Control over Delegated Legislation” LEGALSERVICES (June, 2019), http://www.legalservicesindia.com/article/1894/Effectiveness-of-Parliamentary-Control-over-Delegated-Legislation.html21 Rakesh, Control over Delegated Legislation, 22, STUDY MODE, 6 (2013).22 http://www.legalservicesindia.com/article/1894/Effectiveness-of-Parliamentary-Control-over-Delegated-Legislation.html



The legislative control over administration in parliamentary countries like India is more

theoretical than practical. In reality, the control is not that effective as it ought to be. The

following factors are responsible for the ineffectiveness of parliamentary control over delegated

legislation in India23:

● The Parliament has neither time nor expertise to control the administration which has

grown in volume as well as complexity.

● The very size of the Parliament is too large and unmanageable to be effective.

● The legislative leadership lies with the executive and it plays a significant role in

formulating policies.

● “The majority support enjoyed by the executive in the Parliament reduces the

possibility of effective criticism.

● The growth of delegated legislation reduced the role of Parliament in making detailed

laws and increased the powers of bureaucracy.”24

● Lack of strong and steady opposition in the Parliament has also contributed to the

ineffectiveness of legislative control over administration in India.

● Parliament’s control is sporadic, general and mostly political in nature.

● “There is no automatic machinery for the effective scrutiny on behalf of the

Parliament as a whole; and the quantity and complexity are such that it is no longer

possible to rely on such scrutiny.”25

23 Laxmikanth, Public Administration, Tata MC-Graw-Hill Education, p. 212, available on <http://books.google.co.in/books?id=9JcCVqJ14gC&dq=is+parliamentary+control+over+delegated+legislation+effective&source=gbs_navlinks_s> (Last accessed on 14 Feb, 2017)24 Harman, what hinders Parliament’s control over Government & Administration, CAREERRIDE (July, 2019), https://www.careerride.com/mchoice/what-hinders-parliaments-control-over-government-administration-28093.aspx.25 Legalbharat, Effectiveness of Parliamentary Control over Delegated Legislation, LEGALSERVICES (July, 2019), http://www.legalservicesindia.com/article/1894/Effectiveness-of-Parliamentary-Control-over-Delegated-Legislation.html.



CONCLUSION

Delegated or subordinate legislation means rules of law made under the authority of an Act of

Parliament. Although law making is the function of legislature, it may, by a statute, delegate its

power to other bodies or persons. The statute which delegates such power is known as Enabling

Act. By Enabling Act the legislature, lays down the broad guidelines and detailed rules are

enacted by the delegated authority. Delegated legislation is permitted by the Indian Constitution.

It exists in form of bye-rules, regulations, bye-laws, orders etc. There are many factors

responsible for its increase: Parliament and State Legislature are too busy to deal with the

increasing mass of legislations, which are necessary to regulate daily affairs. Modern legislation

requires technicality and expertise knowledge of problems of various fields, our legislators, who

are politicians are not expected to have such knowledge. Subordinate legislations are more

flexible, quickly and easily amendable and revocable than ordinary legislation, in case of failure

or defect in its application. When contingencies arise which weren’t forceable at the time of

making it, subordinate legislation can pass an act quickly to handle them. Quick effective and

confidential decisions aren’t possible in body of legislatives. So, executives are delegated with

power to make rules to deal with such situations. These are the main factors, besides many

others, for the fast increase in delegated legislation today. Justice P.B Mukherjee has stated

“Delegated legislation is an expression which covers a multitude of confusion”. It is an excuse

for the legislators, a shield for the administrators and a provocation to the constitutional jurists. It

is praised as a necessity and felt as inevitable in our world where social economic technological

psychological and administrative speed outstrips the spacious and placid traditional legislative

ideals and processes. It is criticized as an abdication of power by legislators and an escape from

the duty imposed on them by voters of democracy. In England the king lost the legislative power

at Runnymede and Parliament lost legislative at stampede that followed since to provide the

government for the country through administration and bureaucracy.

BIBLIOGRAPHY

Books/Articles

● Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Ed., Vol. II,

Wadhwa Nagpur.



● I.P.Massey, Administrative Law, (7th ed.2008).

● Takwani C.K. (2007) Lectures on Administrative Law. Eastern Book Company,

Lucknow.

● Dr. J.J.R. Upadhyaya, Administrative law, 7th Ed., (Central Law Agency) (2010).

● S.P. Sathe, Administrative Law, 7th ed., (LexisNexis Butterworth Wadhwa Nagpur),

(2012).

Internet /Web Resources

● www.legalservicesindia.com/article Doctrine Of Permissible Limits under Delegated

Legislation under the Indian Constitution: of India

● books.google.co.in/books/about/Delegated_legislation Delegated Legislation in India, US

and England

● aclawresearch.blogspot.com Development of delegated legislation in India

● www.lawyersclubindia.com/articles Delegated Legislation in India

● elearning.vtu.ac.in/P3/CIP71/3.pdf Delegated Legislation

● www.napsipag.org/pdf/Dr.M.shamsur_rahman.pdf. The delegated legislation


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