Legislative Control: Laying and the Scrutiny Committees
Chapter -Two
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 422 to 424 of 430
In one line
Parliament gave the power away and keeps two devices for watching what is done with it, and neither works very well.
In the wording a student can write in an exam: legislative control of delegated legislation operates through the terms of the enabling Act itself, through the requirement that rules be laid before the House, and through the scrutiny of the Committees on Subordinate Legislation; the laying requirement takes three forms, simple laying, laying subject to negative resolution and laying subject to affirmative resolution, and its legal effect depends on whether the Act makes laying a condition of validity.
Control at the stage of the enabling Act
The first and most effective control is drafting: how much is delegated, to whom, with what standard, and with what procedural conditions. A House which passes a section saying that everything shall be as may be prescribed has surrendered the control it later complains of losing.
Laying: the three forms
Simple laying. The rules are laid before the House for information. No resolution is contemplated.
Laying subject to negative resolution. The rules take effect on being made but the House may annul or modify them within a stated period, commonly thirty days over one or more sessions. This is by far the commonest Indian form.
Laying subject to affirmative resolution. The rules do not take effect, or cease to have effect, unless approved by a resolution of the House. Reserved for the most important powers, and rare.
The legal effect of a failure to lay
The question is the mandatory or directory question again. Where the Act makes laying a condition of the rule taking effect, a failure to lay is fatal. Where the Act merely requires the rules to be laid after they are made, the failure is ordinarily an irregularity which does not invalidate them, because the rule has already taken effect and the laying is a parliamentary rather than a legal condition.
Where the Act requires both publication and laying, and neither is done, the publication point is the stronger one, which is what Narendra Kumar v. Union of India, AIR 1960 SC 430, decided: principles which were neither published in the Gazette nor laid before both Houses as the Act required were of no effect.
The Committees on Subordinate Legislation
Constitution. A Committee on Subordinate Legislation was constituted in the Lok Sabha in 1953 and in the Rajya Sabha in 1964, and the State legislatures have similar committees.
Function. To examine whether the powers delegated by Parliament are being properly exercised within the framework of the Act.
The standard questions the committees ask. Whether the rules are within the enabling Act; whether they impose a tax; whether they exclude the jurisdiction of the courts; whether they have retrospective effect where the Act does not authorise it; whether they involve unusual or unexpected use of the power; whether there has been unjustifiable delay in making or publishing them; and whether they require elucidation.
Legislative Control: Laying and the Scrutiny Committees
The weakness. The committees report; they cannot annul. Their recommendations are acted on by departments most of the time, and the process is slow and invisible.
Why legislative control is weak in India
Volume. Thousands of instruments are laid each year and a committee of fifteen members cannot read them.
Time. Rules are laid, the period expires, and nothing happens.
Party discipline. A motion to annul rules made by the Government of the day will not carry.
And no consequence attaches to laying in most Acts, so the requirement is procedural rather than substantive.
That is why the honest conclusion, which MU's most recent question invites, is that judicial control does the work in India that legislative control is supposed to do.
A worked example
An Act provides that every rule made under it shall be laid before each House while it is in session for a total of thirty days, and that if both Houses agree in making a modification or in deciding that the rule should not be made, the rule shall thereafter have effect only in the modified form or be of no effect, but that any such modification or annulment shall be without prejudice to the validity of anything previously done.
That is the standard negative resolution formula, and three things follow. The rule is valid from the date it is made. A failure to lay does not by itself invalidate it, because validity does not depend on laying. And even an annulment operates prospectively, so acts done under the rule before annulment stand.
What this does NOT mean
It does not mean laying is pointless. It is the only routine parliamentary sight of a rule.
It does not mean the committees are ineffective. They have secured many amendments, quietly.
It does not mean an affirmative resolution requirement is unknown. It is used, sparingly, for the most significant powers.
Quick revision
Three controls: the terms of the enabling Act, laying, and the scrutiny committees. Laying takes three forms, simple, negative resolution and affirmative resolution, and the negative form is the Indian norm. A failure to lay invalidates only where the Act makes laying a condition of the rule taking effect. The Committees on Subordinate Legislation were constituted in 1953 and 1964 and examine whether the delegated power is being properly exercised, but they report rather than annul. Legislative control is weak because of volume, time, party discipline and the absence of a legal consequence, which is why judicial control matters more.
Legislative Control: Laying and the Scrutiny Committees
Test yourself
1. Name the three forms of laying. Simple laying for information; laying subject to negative resolution, so that the House may annul or modify within a stated period; and laying subject to affirmative resolution, so that the rules require approval.
2. Does a failure to lay invalidate a rule? Only where the Act makes laying a condition of the rule taking effect; otherwise it is ordinarily an irregularity.
3. Give three of the questions the scrutiny committees ask. Whether the rules are within the enabling Act; whether they impose a tax or exclude the jurisdiction of the courts; and whether they have retrospective effect where the Act does not authorise it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.