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This paper explains the subordinate authority and the function of delegated power by the legislative body. Delegating power and ensuring that it is not exercised in an abusive or ultra-vires manner. The control mechanism is discussed in the paper, which is mainly of three types (1) Parliamentary or Legislative Control, (2) Judicial Control, and (3) Executive or Procedural Control. Here parliamentary control is exercised by the legislation itself, that committee are established to look upon the working of the executive. Judicial control looks at whether the rules that are so drafted are not ultra-vires in nature to the main act and enabling act and lastly, procedural control talks about the procedures for making rules is exclusively mentioned in the law and the executive must follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off of the rules by the executive to the parliament. Main committees for legislative control and the stages on which legislative control is carried out by the legislation. Lastly, the important cases which carve out the existence and working of delegated legislation in India.
Keywords – Delegation, control, procedural, Standard operating procedure, Epidemic Disease Act of 1897.
1. A theoretical approach to control mechanism. An introduction.
As we know that delegated means to transfer some power to other entities, i.e., in this scenario parliament is transferring some powers to the executive so that the flow of work is much more fluid and affects the people at ground level whether positively or negatively. Here, the executive acts as the main component as executive control working of the entire nation regarding several areas such as Public Welfare Department, Income Tax department, etc. In both levels, whether it is at the state level or central level, these administrative agencies aim to provide a better workflow and better supervisory guidance.
Here, in spite of having all these functions, there should be some control either procedural or structural so that the executive doesn’t act over its delegatory powers. As it is not stated in the constitution specifically that when delegating power there should be some control, but giving rulemaking power should be attached with some procedures with talks about control of that power and hence when some law dictates or delegates rulemaking power to executive then the law itself contains procedure or rules that direct the control and working procedure for the delegated law.
Here, the Control mechanism is not by parliamentary law but in some of the cases, higher administrative authorities control the working procedures of the small administrative authorities. Courts by exercising can control the working of administrative authorities and tribunals such as writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto and can also exercise by orders such as order of injunction and declaratory injunctions which by the way ensures that natural justice is followed and it keeps a good control on administrative functions.
1.1 – Types of Control Mechanism
There are three types of control –
1. Parliamentary or Legislative Control.
2. Judicial Control
3. Executive or Procedural Control
1.1.1 – Parliamentary Control – Under the Parliamentary control, Parliaments looks upon the working and functions of the executive and it is the inherent function given in constitution and it is controlled and looked upon the initial stage and direct stage. Here at the initial stage when delegating powers it is looked upon by the parliament how much power should be delegated and secondly in the second stage after the rules which are prepared by the central government should be laid off before the parliament for further inspection.
1.1.2 – Judicial Control – Here as the name suggests that the rules so made by the executive are under the ambit of the law and do not violate any articles regarding fundamental rights and other necessary articles in the constitution of India. It is the duty of the judiciary to remove the law which is violative in nature or ultra vires in nature.
1.1.3 – Procedural control of Executive control – In this, the procedures for making rules are exclusively mentioned in the law and it is mandatory for the executive to follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off the rules by the executive to the parliament.
2. Some important factors responsible for the growth of delegated legislation in India.
2.1 – Firstly, the most obvious factor would be the flexibility of the executive towards every governmental agency and as we know parliament can’t control each and everything on its own as there will be an enormous workforce and it can’t be controlled by a single entity and also the process of amendment is a cumbersome and lengthy process instead here parliament make rules after analyzing the situation and delegating it to the executive.
2.2 – Secondly, would be the technicality of the subject, it is not possible for the parliament to look upon that technical subject matters hence it transfers powers to someone who is expert in that area, for example, to deal with the areas of drugs, energy, etc.
2.3 – Thirdly, In an emergency situation it is not possible for the parliament to come up with a solution to cope with the situation, then in this type of situation delegated legislation comes into the picture, and also executive is given more powers in this scenario and the best example of this would be Sec 2 of the Epidemic Disease act, which gives power to central gov to frame out rules in case of a pandemic emergency.
2.4 – Fourthly, the activities arising in the states are arising at alarming rates such as in the areas of drugs, petroleum, engineering, etc, it is very difficult for one entity to look upon all of this, hence parliament made policies and delegates the power to the executive to make laws accordingly.
2.5 – Also, it saves a lot more time for parliament as the executive can draft and make laws accordingly much faster and more accurately by analyzing the situation for the same and making laws accordingly.
3. Theoretical approach to Parliamentary Control (Stages for the passing of SOP)
Under the Parliamentary control, Parliament looks upon the working and functions of the executive and it is the inherent function given in constitution and it is controlled and looked upon the initial stage and direct stage. Here at the initial stage when delegating power it is looked upon by the parliament how much power should be delegated and secondly in the second stage after the rules which are prepared by the central government should be laid off before the parliament for further inspection.
In this, it is under the state legislature that to take a look upon the rules created by the executive and whether it is violating its rulemaking power and acting in an ultra-vires manner and in this scenario, the state legislature possesses the power to penalize the agency so responsible by taking away the power to make law regarding that subject matter or investigating the agency for frauds or in the worst scenario abolishing or reorganizing the agency.
In India, parliamentary control is carried out in two main stages. 1. Initial Stage 2. Direct Stage and Indirect Stage
3.1 – Direct Stage – It is the starting phase where the legislative is making laws and looking and analyzing the law how much rule-making power is needed to delegate to the executive to work properly and in a fluid manner and whether the power delegated is not violative in nature and in the purview of the law. It is the first and the foremost initial level of Parliamentary control.
In Second stage it is divided into two parts, Direct and Indirect Control.
3.2 – Direct Control – It is the stage where the executive after drafting the rules has to lay off before the parliament for its inspection process. And here laying is of three types –
3.2.1 – Simple Laying – It is the weakest form of laying, here as soon as the layoff is given it is passed by the parliament. Here, we can say that it is only laid off to inform the parliament about the rules and regulations.
3.2.2 – Laying as to negative resolution – Here also the regulations come into force after the laid off and the process of acceptance is not time taking but there is time period only after that it will come into effect it can be void if a negative resolution is passed by the parliament. That is the reason it is called negative resolution.
3.2.3 – Laying as to affirmative resolution – Here, it is passed by the resolution of the parties of the parliament and until that time it shall cease to have no effect at all. After passing the resolution, it needs to be accompanied by an affirmative resolution by the parliament, afterwhile it will come into effect.
The two main test here is the Test of Mandatory and Directory, in case of mandatory, if the law itself says the procedure to draft in the format mentioned then it should be strictly followed by the executive. In the case of the Directory, here it is first approved by the parliament and then enforced as such in the public law.
3.3 – Indirect Control – Here to look upon the working of the executive committees are made for specific areas and their purpose is to look upon the rules made are in the purview of the law and enacted as stated in the law, to look upon the retrospective effect of the rules, that it is in the purview of the natural justice and it safeguards the public interest and the expenditure so use is from the specified fund which is allotted for this purpose.
4. Theoretical approach to Judiciary Control. (Role of judiciary in respect of execution)
Here as the name suggests that the rules so made by the executive are under the ambit of the law and do not violate any articles regarding fundamental rights and other necessary articles in the constitution of India. It is the duty of the judiciary to remove the law which is violative in nature or ultra vires in nature.
4.1 – Parent Act is ultra-vires to the constitution – This control is not exclusively but partially covered under Sec 13(3) (a) of the constitution of India which mentions no rules or law should be made with violated the components mentioned in Part 3 of the constitution or violate any fundamental right and also should not be ultra-vires to the constitution of India and also to the law from where that rule is derived. Here, when the ultra vires power is exercised then the court looks upon the agency on which the power is distributed that is the main and discretionary agency, not the lower agency as it is obvious that these lower agencies work under the supervision of the principal agency and then gives proper jurisdiction and gives the order for the same. Further, the legislative power and its distribution should not violate List 1, 2, and 3 of the 7th Schedule, that it is not following retrospective effect under Article 20 and also no the violation of commerce clause which is stated under Article 301 of the constitution
In the situation where there is a question regarding the question of law and question of fact, then it is in the hands of the judiciary and it becomes essential in this scenario that a judicial review should be taken as this type of issue can’t be corrected by the amendments but rather court should provide orders to confine powers and it does not violate the laws and rights conferred by the constitution of India.
4.2 – Delegated legislation is itself ultra-vires to the constitution – Here the question arises on the delegation power itself where this power should be delegated to the executive. The enabling act may be safe but the delegation itself may be infringing the constitution of India. In the case of Dwarka Prasad Laxmi Narain v State of U.P., talks about the order and provisions of the U.P. coal Control Order 1953, here Sec 3(2) of the Essential Applies Act 1946, was found to be ultra-vires as it is infringing the Article (19((1)(g) of the constitution.
5. Theoretical approach to Executive control or Procedural Control
Procedural control of Executive control – In this, the procedures for making rules are exclusively mentioned in the law and the executive must follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off the rules by the executive to the parliament. The main parameters for the executive control here are the intention of the legislature behind making the law, the main scheme of the act and its main intention and procedure, and the main language used in the law, main properties the language is trying to mention and lastly, it should be in the purview of the public welfare.
5.1 – Prior publication of Rules and ordinances – Here the executive must publish the rules and regulations conferring from the parent law and it is also deemed to be necessary under Sec 23 of the General Clauses Act 1897, that the concerned authority shall publish in the public interest and if any objections regarding that are given it should also be taken in consideration by the authority and should be finalized and republish the same.
5.2 – Prior consultation which may be affected by the delegated legislation – In India, there are no such general laws that state that consultation should be taken by the parties who are affected by the proposed rule and the process which was involved during lawmaking. Here, in some laws, it formerly states that firstly to consult and take the considerations for the same and after then frame the rules and regulations. In some statues, there are also provisions that state that no hearing or consultation can be claimed by anyone as a matter of right and in the sense of natural justice, when the administration is working in other functions or discharging other liabilities then the same cannot be challenged on the ground that the concept or principle of natural justice was not considered by the executive or parliament. Also. This Hon’ble Supreme Court of India stated that the principles of natural justice will not apply in the cases of legislative action or plenary action and here the proceeding or the process of hearing can’t be carried out by the court.
6. Important cases related to the Control Mechanism of Delegated legislation in India.
6.1 – Avinder Singh v. the State of Punjab, AIR 1979 SC 321 – In this, Justice Krishna Iyer emphasized the necessity of parliamentary control and mentioned that it should be continued and should be considered as a constitutional necessity. He further added as we know the legislature has control over the executive as it is his agents, so it is the function of its legislature if it seems or observes that some powers regarding rulemaking need to be transferred and it is not only the right but also the obligation on the legislature that it looks upon the working of the executive and whether the power is utilized as stated in the law. It is the delegatory responsibility of the parliament to supervise, control, and exercise its power so that there will not be any cases regarding ultra vires or abusive use of power by the executive. The parliamentary control is divided basically into two stages – 1. Pre-enactment control 2. Post-enactment control provides safeguards against abusive use of power.
6.2 – Atlas Cycle Industries Ltd. V. State of Haryana, AIR 1979 SC – The main issue here is that where the rules that provide delegated legislation are mandatory rules and shall be followed or just directory in nature. Here, the court held that the use of shall is not conclusive in nature and here the intention of the legislature is not given importance when comes to the rules of delegated legislation. Further, it was added that it is not possible for the legislature to look upon and control the executive as a single entity as an executive is a merge of several subjects, areas of workings and productions, so in this scenario, several separate scrutiny committees should be formed so that it can control the working of the executive more fluently. The main function of these committees would be –
6.2.1 – The rules that are framed by the executive are according to the parent act or enabling act and necessary obligations and procedures are followed.
6.2.2 – To look upon the specific rules that need to be dealt with more specifically and where it can be a more appropriate way of dealing with that rule.
6.2.3 – To ensure the rules are not exercised in a retrospective manner, and lastly these committees also help to discharge some workforce from the legislature.
6.3 – Indian Express Newspapers (Bom) P. Ltd v. Union of India – In this case, the question was regarding the grounds on which subordinate legislation can be questioned and it was outlined in this case. Here, the court observed that subordinate legislation should not be treated as the principal legislation and it doesn’t carry that much power which is enjoyed by a full-fledged competent legislative authority. Subordinate legislation can be questioned on many grounds as the legislation thinks fit. The grounds here can be that the rules which are framed out of the parent act or enabling act, whether it is ultra-vires in nature and also whether it is contrary to some another statute. This is done because subordinate legislation is the yield of the plenary legislation and it should exercise under the control of the principal legislation. The further questionable ground would be on the basis that whether it is reasonable or not and also whether it is manifestly arbitrary.
Delegated legislation shows how some powers are transferred from the legislative to the executive so that it ensures fluid working of the legislation as the single entity can’t perform every aspect of the state and central government on its own. Transferring of powers also comes up with the control mechanism, that it is not used in ultra-vires or in an abusive manner and should not contravene with the enabling or parent act or the other act. The three main control mechanism in India is Judicial control, Procedural Control, and Legislative control. Under the Parliamentary control, Parliament looks upon the working and functions of the executive and it is the inherent function given in constitution and it is controlled and looked upon the initial stage and direct stage. Here at the initial stage when delegating power it is looked upon by the parliament how much power should be delegated and secondly in the second stage after the rules which are prepared by the central government should be laid off before the parliament for further inspection. Here in the case of judicial control that the rules so made by the executive are under the ambit of the law and do not violate any articles regarding fundamental rights and other necessary articles in the constitution of India. In the case of procedural control, procedures for making rules are exclusively mentioned in the law and it is mandatory for the executive to follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off the rules by the executive to the parliament.
 Sayjal Deshpande, Control Mechanism Of Administrative Rule-Making Power, Legal Bites, (Dec 23, 2019), https://www.legalbites.in/control-mechanism-of-administrative-rule-making-power/#:~:text=Control%20Mechanism%20Of%20Administrative%20Rule%2DMaking%20Power%20%7C%20Overview&text=Administrative%20rulemaking%20is%20the%20functions,provide%20legislative%20supervision%20and%20guidance.
 Author, what is the control mechanism of administrative law, Academic Law Research, Blogger, (December 21, 2012), http://aclawresearch.blogspot.com/2012/12/what-is-control-mechanism-of.html
 Legislative Controls of Administrative Rule Making Author(s): Orrin L. Helstad, William W. Boyer and Jr.
 Hemant More, Parliamentary control over delegated legislation, The fact factor, (October 27, 2019), https://thefactfactor.com/facts/law/civil_law/administrative-law/parliamentary-control/4309/
 The Constitution of India, 1950, Act of parliament, 1950, (India)
 Dwarka Prasad Laxmi Narain v State of U.P, (11 Jan, 1954), 1954 AIR 224, 1954 SCR 803
 Avinder Singh v/s State of Punjab, (1979) AIR 1979 SC 321
 Atlas Cycle Industries Ltd. v/s State of Haryana, (1979) AIR 1979 SC
 Indian Express Newspapers (Bom) P. Ltd v/s Union of India, (6 December 1984), 1986 AIR 515, 1985 SCR (2) 287
Author: Ravi Ranjan, School of law, University of Petroleum and Energy Studies.
Editor: Kanishka Vaish, Senior Editor, LexLife India