Parliamentary Control of Administrative Rule Making

“…even if there be delegation, parliamentary control over delegated legislation should be a living continuity as a constitutional necessity”. [1]

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. [2] This dependence can often take the form of checks and controls, namely, parliamentary or legislative control; procedural control and judicial control. [3]

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 traditional legislative processes, delegated legislation is an essential means of survival. [4] 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.

This paper attempts to analyze the various forms of parliamentary control over delegated legislation at both levels, first at the time of passing the enabling act and the second at the when the legislature scrutinizes the delegated legislation. An effective comparison is sought to be made by comparing the Indian standards with that of the United Kingdom and the United States of America.

Chapter 1: Direct General Control

The first form of parliamentary control is exercised at the time of passing the enabling act. This is the proceedings in the Parliament which are in the nature of general and direct control.

In India, various methods and mechanisms are used such as debates on the delegating bill which include aspects such as the necessity, extent, type of delegation and the authority to whom power is delegated. [5] Further, any member may ask questions on any aspect of delegation of legislative powers and if dissatisfied can give notice for discussion under Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules. [6]

Budget cuts during a vote of grant and discussions on delegation through a private members’ Bill seeking modifications in the parent act or through a debate at the time of discussion on the address by the President to the joint session of Parliament are also useful.

However, in India as in the U.K. these methods are rarely used. This is purely because of lack of convention or practice. Scholars however believe that this method should be used extensively and effectively so as to nip the vices of delegation in the bud.

Chapter 2: Direct Special Control

Concern for popular control of increasingly extensive administrative activities has brought forth various proposals by which congressional supervision can be maintained. Prominent among these remedies is the device of “laying on the table”, which requires that administrative “legislation” made under delegated authority be presented to the legislature for approval.

“Laying” may take various forms such as laying with no further direction wherein the purpose is to simply inform the House. Laying subject to negative resolution implies the coming into force of the rules with the exception that it shall cease to have effect if the House annuls it. [7] Another form is laying subject to affirmative resolution where the rules need approval for coming into effect or else they cease to be in operation until such resolution. The process of laying in draft subject to negative resolution means that within 40 days of laying, the rules will come into force unless disapproved and laying in draft subject to an affirmative resolution is coupled with the power of modification and then approval.

In America, even though the concept of strict separation of powers makes parliamentary control rather invisible, Reorganisation Acts of 1939 to 1945 provided that the Presidential organizational plans were not to have any effect for a specified period during which they could be annulled by any Congress through a concurrent resolution of both the Houses. In six states, namely, Connecticut, Kansas, Michigan, Nebraska, Virginia and Wisconsin, provisions exist for laying the rules before the legislative houses.

In England, on the other hand, this requirement of laying is used effectively and extensively. [8] The Statutory Instruments Act, 1946 clearly lays down uniform provisions such as deferring the legislation until approval of House; coming into effect of legislation subject to disapproval by House; sending notification to Lord Chancellor and Speaker of House of Commons incase such provisions cannot be maintained.

It is also important to assess the legal consequences of non-compliance with laying provisions. In England Section 4(2) of the Statutory Instruments Act, 1946 makes laying provisions mandatory and hence, any violation would lead to nullity of the legislation or rendering the rule void.

However, in India, the dichotomy remains as the courts judge if they are mandatory or directory and then proceed to judge the legal consequences. A careful analysis of few cases will show the confusion inherent.

In the case of Narendra Kumar v Union of India [9] , Section 3(6) of the Essential Commodities Act, 1955 which reads as, “Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made” was called mandatory primarily because of the words “shall be laid”.

However, this ruling was not followed as such in the case of Jan Mohammad v State of Gujarat. [10] In this case, Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939 prescribed a similar laying procedure. The rules were framed in 1941 however were not laid before the legislature in its first session citing World War II as a lawful emergency. Thereafter, the rules were laid before the Houses of Parliament in its second session. The Court did not stand by its previous interpretation and in fact held that the Act did not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. Thus laying was not mandatory. Further, since the Act did not categorically say that if the rules were not placed in the very first session itself, they would be invalid, inferring the same is not required.

Even assuming that the above was not really a deviation as it was due to certain special circumstances, the ruling in Atlas Cycle Industries v State of Haryana [11] was clearly a very doubtful.

In Atlas Cycle Industries case, the same provision of the Essential Commodities Act, 1955 was under consideration as in the Narendra Kumar case. The Court gave a surprisingly different verdict when it left the tool of literary interpretation to lay down different standards in case of delegated legislations. It held that, “Two considerations for regarding a provision directory are (i) Absence of any provision for the contingency of a particular provision not been complied with and (ii) Serious general inconvenience and prejudice to the general public, if rules are declared invalid. On applying these two principles to the facts in hand, it held that Section 3(6) does not stipulate negative or affirmative resolution by either Houses. It is not subject to the approval or disapproval of Parliament. [12] Further, the section does not stipulate any period of time or a penalty for non-observance. Hence, simple use of the words “must” or “shall” do not determine the nature of the laying provisions. [13]

It is therefore seen that lack of a uniform and general law has lead to very ambiguous interpretations which do not give any clear direction as to the position of law.

Chapter 3: Indirect Control

This form of control is exercised by the Parliament through its Committees. [14] In 1950, the then Law Minister made a suggestion that Indian Parliament should also have a Committee on the lines of those present in England. Pursuant to this, The Committee on Subordinate Legislation of Lok Sabha was appointed on December 1, which comprised 15 members nominated by the Speaker for one year. The Chairman is appointed by the Speaker from amongst its members. A similar Committee was established in the Rajya Sabha in 1964. In England, it is a rather healthy tradition to appoint the Leader of Opposition as Chairman.

The main functions are to examine whether rules comply with the general object of the Act and the Constitution; whether the Act is better equipped to deal with matters delegated in the rules; does the delegated authority deal with imposition of tax. [15]

This Committee has also suggested various means by which the process of delegated legislation in India can be better organized and effective. It states that all enabling Acts must mandate laying in a language which is simple, clear and concise. Ambiguity or unnecessary wideness should be avoided. Any financial levy or tax should not be imposed by rules as it contains the latent threat of financial abuse and corruption by the authorities. [16] A very coherent policy should be laid down by the Legislature so that the Executive can frame rules only within those parameters. Even then, the power of the Parliament to modify and the courts’ power of judicial review should not be curtailed in any manner. Further, inordinate delay must not be excused and rules themselves should be self-explanatory so as to avoid unnecessary confusions regarding purpose and intention.

Conclusion

A careful analysis of Indian parliamentary control over delegated legislation will show that it is very weak and undeveloped or rather under-utilized. Reasons for this include lack of legal skills with parliamentarians; lackadaisical attitude of ruling parties; too much dependence on courts for any problem.

It is striking to note that a country like America which has strict separation of powers thereby making parliamentary control a mere fiction as per their Constitution, believes in the importance of it and incorporates it in significant areas. India, a country with quasi-federal structure and a separation of powers which is quite diluted has ironically failed to realize the significance and effectiveness of parliamentary control as a check on excessive delegation.

Parliamentary control in England is the most effective because it is done in a non-political atmosphere with a uniform law and the extent of making the Leader of Opposition the Chairman of the Committee which scrutinizes. India thus should learn from this and strive to move away from dreams of individual power to realizing the values of true democracy.

In India, thus, if parliamentary control of administrative rule-making is to be made a living continuity as a constitutional necessity, it is necessary that the role of the committees of Parliament be strengthened and a separate law like the Statutory Instruments Act providing for uniform rules of laying and publication must be passed. The committee may also be supplemented by a specialized official body to make the vigilance of administrative rule-making more effective.

Each of the three areas of legislative control is not free from problems and each problem has its solutions laid down as follows.

First, the area of direct general control is most unutilized. This is indeed unfortunate considering that it is the very essential function of Parliament to debate, discuss, argue and draft the best possible laws and rules. The Opposition has the golden chance to point out major flaws and delve into future problems that might be foreseen. Even the ruling party can gain from these points. Further, this will prevent any unwarranted or unfair legislation from being passed in the first place. This is why this control, exercised at the stage of passing the law is crucial in avoiding future litigations and harassment to the people of our democracy.

Second, in the area of direct special control, which is the more popular form of check, Indian politics and law has several loopholes. The most obvious and glaring of them all is the lack of a law which is uniform, general and lucid and which clearly declares laying as mandatory with a clear intention of declaring the rules or the enabling act itself void on non-compliance. The suggestion of the Committee for a uniform period of 30 days for laying before final publication is helpful with exceptions created in cases of urgency. This is in order to infuse speediness in the Parliamentary proceedings.

The courts’ too have been caught in this web of lack of uniform laws as they decide cases differently on different principles. Instances where the same provision has been held mandatory due to words used like “shall”, “must” and then directory due to implication and intention show that the judiciary too has failed to give a clear direction. This is deplorable considering that the judiciary has wide powers to correct the otherwise incorrect laws.

In cases like, Dattatraya Moreshwar v. State of Bombay [17] , this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. It is not beyond doubts that delegated legislation confers powers on authorities to exercise duties of public nature but these have a direct impact on private rights of citizens. Thus, the courts should interpret provisions of laying as mandatory even by this guideline.

Further, in the case of Raza Buland Sugar v. Municipal Board, Rampur [18] ; and State of Mysore v. V.K. Kangan, this Court held that as to whether a provision is mandatory or directory, would depend upon the intent which has to be gathered from the phraseology of the provision and its design. Keeping this principle in mind, sections of enabling acts which use the words “shall” or “must” clearly display the intention of making it a strictly applicable provision. A strict interpretation would go a long way in bringing in efficiency despite the lack of a uniform law.

Third, the special control mechanism has been reduced to a mere suggestive and recommendatory body wherein committees are established; their suggestions are heard but rarely implemented. Examples from Australia, Scotland and United Kingdom would show how this area of special control is taken with utmost seriousness. In India, the idea of setting up bodies of enquiry, commissions and committees for almost any occurrence is a frequent phenomenon. Most believe that this is a way of hushing up the public discontent. However, it must be kept in mind that these Committees are made up of members of the Parliament who are actually elected by the people of our country. Their suggestions if implemented can solve not only problems of excessive delegation but also never ending litigations.

It must be stressed that as stated in the case of Lohia Machines v Union of India, it was held that “…since every Rule made under the Act is required to be laid before each House of Parliament so that both Houses of Parliament have an opportunity of knowing what the rule is and considering whether any modification should be made…thus, Parliament has not parted with its control over the rule making authority and it exercises strict vigilance and control over the rule making power exercised by the Central Board of Revenue. This is a strong circumstance which militates against the argument based on excessive delegation of legislative power”. Hence, parliamentary control is a vital feature in assessing the extent of delegation by the enabling act to check on the vices of excessive delegation.

Thus, the evils of the necessity called delegated legislation can be kept in check by the Parliament, judiciary and by keeping to strict procedures. Amongst all of this, it is the Parliament which must take active interest and control in order to reduce pressure on the judiciary and keep alive the doctrine of separation of powers without clogging the wheels of the government.