A PROJECT

ON
LEGISLATIVE CONTROL OVER DELEGATED LEGISLATION

[Submitted as a partial fulfillment of the requirements for B.A.LL.B (HONS.) 5-yearIntegrated Course]

SESSION: 2024-2025

SUBMITTED ON: 21/09/2024

SUBMITTED BY: SUBMITTED TO:

CHANCHAL VERMA DR. JUHI PAWA
ROLL NO. – 22 (FACULTY OF ADMINISTRATIVE LAW)
SEMESTER- VII (A)

UNIVERSITY FIVE YEAR LAW COLLEGE

UNIVERSITY OF RAJASTHAN
JAIPUR
 CERTIFICATE

Date: 21/09/2024
DR. JUHI PAWA
FACULTY OF ADMINISTRATIVE LAW
University Five Year Law College
University of Rajasthan, Jaipur

This is to certify that Chanchal Verma of VII Semester of University Five Year Law College,
University of Rajasthan has carried out the project entitled “LEGISLATIVE CONTROL OVER
DELEGATED LEGISLATION” under my supervision and guidance.

It is an investigation report of a project. The student has completed research work in my stipulated time
and according to the norms prescribed for the purpose.

DR. JUHI PAWA

 DECLARATION

I, Chanchal Verma, hereby declare that this project entitled “LEGISLATIVE CONTROL OVER
DELEGATED LEGISLATION” is based on the original research work carried out by me under the
guidance and supervision of Dr. Juhi Pawa , Faculty of Administrative Law at University Five
Year Law College.

The interpretations put forth are based on my reading and understanding of the original Texts, the
books, articles and the websites etc. which have been relied upon by me have been duly
acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or diploma has been
conferred on me before, either, in this or in other university.

DATE: 21/09/2024 CHANCHAL VERMA

 ACKNOWLEDGEMENT

I have written this project “LEGISLATIVE CONTROL OVER DELEGATED LEGISLATION”

under the supervision of Dr. Juhi Pawa , Faculty, University Five Year Law College, University of
Rajasthan, Jaipur. Her Valuable suggestions herein have not only helped me immensely in making this
work but also in developingan analytical approach towards this project.

I would also like to present my gratitude to Hon’ble Director Dr. Akhil Kumar for their consistent
support during the preparation of this project.

I am extremely grateful to all the librarians and library staff of the college for the support and
cooperation extended by them from time to time.

CHANCHAL VERMA
 TABLE OF CONTENTS

S.NO. PARTICULARS PAGE

NO.

1. CERTIFICATE I
II
2. DECLARATION
III
3. ACKNOWLEDGEMENT
1
4. CHAPTER-1: INTRODUCTION

6
5. CHAPTER-2 : LEGISLATIVE CONTROL
OVER DELEGATED LEGISLATION
7
6. CHAPTER-3: CONCLUSION

8
7. BIBLIOGRAPHY
 CHAPTER-1
INTRODUCTION

The Constitution of Indian empowers Legislature to make laws for the country. One of the
significant legislative functions is to determine a legislative policy and to frame it as a rule of
conduct. Obviously such powers cannot be conferred on other institutions. But keeping in
mind various multifarious activities of a welfare State, it is not possible for the legislature to
perform all the functions. In such situation, the delegated legislation comes into the picture.
Delegated Legislature is one of the essential elements of administration whereby the
executive has to perform certain legislative functions. So, delegated legislation is a process
by which the executive authority is given powers by primary legislation to make laws in
order to implement and administer the requirements of that primary legislation.

Delegated legislation has been defined by Salmond 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”
While subordinate legislation has become an important constituent element of legislation as
the complexity of lawmaking has increased, it is also important to consider how this process
of legislation by the executive under delegated powers can be reconciled with democratic
principles or parliamentary control. Legislation is Parliament's inherent and intrinsic right,
and it must be ensured that this power is not abused or violated under the pretense of
"subordinate legislation."1

1
https://www.defactolaw.in/post/parliamentary-control-of-delegated-legislation-in-india
 CHAPTER 2
LEGISLATIVE CONTROL OVER
DELEGATED LEGISLATION

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. 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.

A whole system of legislative supervision over delegated legislation has come into being in
India. Two significant limbs of this mechanism are:

• Laying of delegated legislation before the legislature (i.e Direct Control)

• Scrutiny of delegated legislation by a legislative scrutiny committee (i.e. Indirect
Control).

(a) Memorandum on Delegation:

The first step in the chain of Parliamentary control over delegated legislation is taken at the
stage of delegation by Parliament. A rule of procedure of each House of Parliament requires
that a bill involving proposal for delegation of legislative power shall be “accompanied by a
memorandum explaining such proposals and drawing attention to their scope, and stating also
whether they of exceptional or normal character”. The rule is salutary, for the first stage of
supervision arises at the stage of delegation. 2

2
https://www.thelawbug.com/legislative_control_over_delegated_legislation/
The purpose of memorandum is to focus the attention of the Member of Parliament to the
provisions of the bill involving delegation of legislative power. The Speaker may also refer
bills containing provision for delegation of legislative power to the committee to examine the
extent of such powers sought to be delegated.

(b) Laying Procedure:

The second link in the chain of Parliamentary Control comes into play after the rules are
made. This is achieved by the mechanism of the ‘laying procedure’. The basic purpose of this
procedure is informational. The underlying idea is that if Parliament is to exercise any
control, it is necessary that the House of parliament be informed of the content of the
delegated legislation made by the Government from time to time under various statutes.
According to Garner, the object of laying procedure is to bring the legislative measures to the
potential notice of the Members of Parliament.
(i) Simple Laying: In almost all the Commonwealth countries, the procedure of
‘Laying on the Table’ of the Legislature is followed. It serves two purposes:
firstly, it helps in informing the legislature as to what all rules have been made by
the executive authorities in exercise of delegated legislation, secondly, it provides
a forum to the legislators to question or challenge the rules made or proposed to
be made.

(ii) Laying with immediate effect but subject to annulment: Here the rules are laid
in draft and can be annulled by a resolution of a House. This is known as negative
laying. In this procedure, the legitimacy of delegated legislation precedes, not
follows, the negative laying procedure. In this procedure the parliamentary
function is ex post facto; it is negative rather than positive; it provides for
disallowance rather than allowance.

(iii) Laying in draft subject to affirmative resolution: here the rules are laid in draft
before the houses. The rules come into operation when the houses pass resolution
affirmation them. An act of parliament will normally requires that rules or
regulation made under the Act shall be laid before both houses of Parliament. 3

3
https://blog.ipleaders.in/delegated-legislation/
 (iv) Legal consequences of non-compliance with the laying provisions:

In India, however, the consequences of non-compliance with the laying provisions depend on
whether the provisions in the enabling Act are mandatory or directory. A laying requirement
is regarded as directory when not coupled with the requirement of laying rules in draft form
and approval by the House. In the latter case the requirement of laying is regarded as
mandatory because the rules cannot come into force without being laid and approved by the
houses of the Parliament as a pre-requisite.

In India also, the courts have taken a similar view the question has been elaborately
considered by the Supreme Court in Atlas Cycle Industries Ltd. V State of Haryana.
Section 3 (6) of the Essential Commodities Act,1955 lays down that any order issued under
Section 3 “shall be laid before both Houses of the Parliament as soon as maybe after it is
made”. An order issued under S. 3 was not laid in the Houses and it was challenged as being
ultravires. Rejecting the argument, the Supreme Court ruled that S. 3(6) is only directory and
not mandatory and that non-lying of an order before Parliament does not make it void. The
use of the world ‘shall’ in S. 3(6) is not conclusive and decisive of the matter, it is for the
court to determine the true intention of the legislature.

In Narendra Kumar v. Union of India, the Supreme Court held that the provisions of
Section 3(5) of the Essential Commodities Act, 1955, which provided that the rules framed
under the Act must be laid before both Houses of Parliament, are mandatory, and therefore
Clause 4 of the Non-Ferrous Control Order, 1958 has no effect unless laid before Parliament.

However, in Jan Mohammad v. State of Gujarat, the court deviated from its previous
stand. Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained a
laying provision but the rules framed under the Act could not be laid before the Provincial
legislature in its first session as there was then no functioning legislature. The rules were
placed during the second session. Court held that the rules remained valid because the
legislature did not provide that the non-laying at its first session would make the rules invalid.
Even if the requirement of laying is only directory and not mandatory, the rules framed by the
administrative authority without conforming to the requirement of laying would not be
permissible if the mode of rule-making has been violated.
(c) Parliamentary Scrutiny Committees (Indirect Control):

The laying procedure by itself does not afford much of an effective parliamentary
supervision. In the negative resolution which now prevails in India, everything depends on
the vigilance of each individual member of Parliament.

To make parliamentary supervision over delegated legislation more effective, two

committees on subordinate Legislation, one in each House of Parliament, have been
established. In India , there are Standing Committees of Parliament to scrutinize delegated
legislation.The Committee on Subordinate Legislation of Lok Sabha was appointed on
December 1, 1953. The main functions of the Committee are to examine:

• whether the rules are in accordance with the general object of the Act,
• whether the rules contain any matter which could more properly be dealt with in the
Act,
• whether it is retrospective,
• whether it directly or indirectly bars the jurisdiction of the court, and questions alike.

The Committee has between 1953 and 1961, scrutinized about 5300 orders and rules and has
submitted 19 reports. With the institution of the Rajya Sabha Committee, Parliamentary
Control of delegated legislation in India has become much more effective, for the two
committees can scrutinize many more rules every year than could possibly be done by one
committee alone.

(d) Recommendation by the Committee on Subordinate Legislation:

The Committee on Subordinate Legislation has made the following recommendation in

order to streamline the process of delegated legislation in India:

• Power of judicial review should not be taken away or curtailed by rules.

• A financial levy or tax should not be imposed by rules.
• Language of the rules should be simple and clear and not complicated or ambiguous.
 • Legislative policy must be formulated by the legislature and laid down in the statute
and power to supply details may be left to the executive, and can be worked out
through the rules made by the administration.

• Sub-delegation in very wide language is improper and some safeguards must be

provided before a delegate is allowed to sub-delegate his authority to another
functionary.

• Discriminatory rules should not be framed by the administration.

• Rules should not travel beyond the rule-making power conferred by the parent Act.

• There should not be inordinate delay in making of rules by the administration.

• The final authority of interpretation of rules should not be with the administration.

• Sufficient publicity must be given to the statutory rules and orders. 4

4
https://www.ijcrt.org/papers/IJCRT1813055
 CHAPTER-3

CONCLUSION
Delegated legislation is permitted by the Indian Constitution. It exists in form of bye-rules,
regulations, orders, bye laws etc. Modern legislation requires technicality and expert
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.In order to ensure that the power of delegated legislation is not misused in the
hands of executive it is necessary to adopt effective modes of control.

Effective control against the abuse of delegated powers of legislation must come from the
legislature itself, primarily at the time of delegation, and secondarily in the supervision of
the manner in which they are exercised. Equally important is the need for public co-
operation in the rule-making process. In a democratic system the administration must
respond to the needs and views of those whom its rules are going to effect. There is no sure
test of the success of a policy than that it is in tune with the genuine needs of the people,
receiving their sympathy, good-will and satisfaction. Finally, we must devise methods by
which the rapidly growing subordinate legislation shall become easily accessible, in an
intelligible manner, to those concerned. All those have to be done in India to achieve an
efficient system of delegated legislation.5

5
https://www.thelawbug.com/legislative_control_over_delegated_legislation/
 BIBLIOGRAPHY

WEB SOURCES:

• https://www.thelawbug.com/legislative_control_over_delegated_legislation/
• https://www.defactolaw.in/post/parliamentary-control-of-delegated-legislation-in-
india
• https://www.ijcrt.org/papers/IJCRT1813055
• https://blog.ipleaders.in/delegated-legislation/