Legislative Control over Delegated Legislation

1. Simple laying

The rule is laid before the House for information only. It comes into force on its own terms and the House takes no decision on it. This is the weakest form: it secures publicity and nothing more.

A variant is laying with immediate effect, where the rule takes effect at once and is laid afterwards, and another is laying with deferred operation, where the rule does not come into force until a stated period after laying, so that the House has an opportunity to consider it first.

2. Laying subject to negative resolution

The rule takes effect but remains before the House for a stated period, and the House may within that period resolve that it be annulled or modified. If no resolution is passed, the rule stands.

This is by far the commonest form in India. The standard clause runs, in substance: every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions; and if before the expiry of the session immediately following, both Houses agree in making any modification in the rule or that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

That final proviso is worth learning, because it contains the practical consequence: annulment operates for the future only, and what was done under the rule while it was in force remains good.

3. Laying subject to affirmative resolution

The rule does not take effect, or ceases to have effect, unless the House positively approves it. This is the strongest form and is used sparingly, for powers of an exceptional kind.

The legal effect of a failure to lay

A question that is regularly set. The answer has two parts.

If the parent Act makes laying a condition of the rule coming into force, non-compliance is fatal: the rule never takes effect.

If the Act simply requires the rule to be laid after it is made, the requirement is ordinarily treated as directory, and failure to lay does not by itself invalidate a rule that is otherwise within the power conferred. The reasoning is that the purpose of laying is to inform the House, and the citizen's rights should not turn on whether a departmental clerk sent copies to the Secretariat.

The test is the same as for any procedural requirement: mandatory or directory, decided on the purpose of the provision, its language and the consequences: [Judicial Control over Delegated Legislation].

Stage 3: the scrutiny committees

Laying is of little use if nobody reads what is laid, and the volume is far beyond what a House can consider. Hence the committees.

The Committee on Subordinate Legislation of the Lok Sabha was constituted in 1953, and the Rajya Sabha constituted its own in 1964. Each State legislature has an equivalent committee. They are appointed under the rules of procedure made under Articles 118 and 208.

Its function is to examine whether the powers to make rules delegated by Parliament are being properly exercised. The heads on which it reports are, in substance:

1. Whether the rule is in accordance with the general object of the Act.
2. Whether it contains matter which should more properly be dealt with in an Act.
3. Whether it contains an imposition of taxation.
4. Whether it directly or indirectly bars the jurisdiction of the courts.
5. Whether it gives retrospective effect where the Act does not expressly authorise it.
6. Whether it involves unusual or unexpected use of the power.
7. Whether there has been unjustifiable delay in publishing it or in laying it before the House.
8. Whether, for any reason, its form or purport calls for elucidation.

Its limits, which an honest answer states: the committee is advisory, it reports rather than annuls, it works after the rule is in force, it cannot cover the whole volume of delegated legislation, and its recommendations depend on the Government accepting them.

A worked example

An Act provides: "The Central Government may make rules prescribing the standards of purity for packaged drinking water. Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament for a total period of thirty days ... and if both Houses agree that the rule should not be made, the rule shall thereafter be of no effect, without prejudice to the validity of anything previously done thereunder."

Rules are made in January and laid in February. Both Houses resolve in April that the rule should not be made.

• The rule was valid from January to April, and prosecutions launched in that period on the strength of it are unaffected, because of the saving proviso.
• From April the rule has no effect.
• The Government may make a fresh rule, since the power in the Act survives; annulment of a rule is not repeal of the power.

Now suppose the rules were never laid at all. The rule is not thereby void, because this Act requires laying after the rule is made rather than as a condition of its coming into force, so the requirement is directory. The remedy is political: the Committee on Subordinate Legislation would report the delay under head 7, and the House could take the matter up.

Now suppose the Act had said "no rule shall come into force until it has been approved by resolution of both Houses". Then laying and approval are conditions precedent, and a rule not so approved never takes effect at all.

Distinctions worth having straight

What it does NOT mean

It does not mean Parliament approves every rule. In the ordinary negative resolution form the House does nothing at all, and the rule stands by default.

It does not mean annulment undoes what was done. The standard saving clause preserves the validity of anything previously done under the rule.

It does not mean a failure to lay makes a rule void. It does so only where the Act makes laying a condition of coming into force.

It does not mean the committee can strike anything down. It reports; it does not annul.

Quick revision

1. Three stages: control at delegation, laying, and the scrutiny committee.
2. At delegation: state the policy, confine the subject matter, set outer limits, prescribe procedure, require laying, and time limit exceptional powers.
3. Three forms of laying: simple, negative resolution, affirmative resolution. Negative resolution is the usual Indian form.
4. The standard clause: thirty days across one or more sessions, both Houses agreeing, and annulment without prejudice to anything previously done.
5. Failure to lay: fatal if laying is a condition of coming into force; otherwise ordinarily directory.
6. Committee on Subordinate Legislation: Lok Sabha 1953, Rajya Sabha 1964, and one in each State legislature. Eight heads of scrutiny.
7. Weaknesses: volume, party discipline, the committee's advisory character, and the fact that control operates after the rule is already in force.

Test yourself

1. Explain legislative control over delegated legislation. It operates at three stages. When the power is delegated, the legislature controls it by stating the policy in the Act, listing the matters on which rules may be made, setting outer limits such as maximum fees, prescribing procedural conditions such as previous publication or consultation, requiring laying, and limiting exceptional powers in time. After rules are made, control is exercised through the laying procedure, in one of three forms: simple laying for information, laying subject to negative resolution, under which the rule stands unless the House annuls or modifies it within the stated period, and laying subject to affirmative resolution, under which the rule takes effect only on approval. Continuously, control is exercised by the Committee on Subordinate Legislation of each House, constituted in the Lok Sabha in 1953 and the Rajya Sabha in 1964, which examines whether the delegated powers are being properly exercised and reports to the House.

2. What are the three forms of the laying procedure? Simple laying, where the rule is placed before the House for information and takes effect on its own terms; laying subject to negative resolution, where the rule takes effect but may be annulled or modified by resolution within the period prescribed, which is the usual Indian form; and laying subject to affirmative resolution, where the rule does not take effect unless the House positively approves it, which is used only for exceptional powers.

3. What is the effect of a failure to lay rules before the House? It depends on the parent Act. Where the Act makes laying, or approval after laying, a condition of the rule coming into force, non-compliance is fatal and the rule never takes effect. Where the Act merely requires rules to be laid as soon as may be after they are made, the requirement is ordinarily construed as directory, so that failure to lay does not by itself invalidate a rule otherwise within the power conferred; the remedy is political rather than judicial, through the scrutiny committee and the House.

4. What does the Committee on Subordinate Legislation examine? Whether the rule accords with the general object of the Act; whether it contains matter that should properly be in an Act; whether it imposes taxation; whether it bars the jurisdiction of the courts directly or indirectly; whether it has been given retrospective effect without express statutory authority; whether it involves an unusual or unexpected use of the power; whether there has been unjustifiable delay in its publication or laying; and whether its form or purport calls for elucidation. It reports to the House, and its recommendations are advisory.

5. Compare legislative and judicial control over delegated legislation. Legislative control is exercised by the House and its committee, operates continuously and both before and after the rules are made, and can question policy and merit as well as legality; its remedies are annulment or modification operating for the future, and its weaknesses are the volume of delegated legislation, party discipline and the merely advisory character of the committee. Judicial control is exercised by the courts, operates only when a case is brought by a person with standing, and is limited to legality: whether the parent Act is valid and whether the rule is within the power conferred and consistent with the Constitution. Its weaknesses are cost and delay, and its strength is that its declaration that a rule is void is binding.