A COMPARATIVE STUDY OF LEGISLATIVE CONTROL OVER

DELEGATED LEGISLATION IN INDIA, UK AND USA

Abstract
The practice of allowing parties, below the parliament to pass their own legislation is known
as delegated legislation. The three main forms of delegated legislation include by-laws, which
are created by local authorities and have to be approved by the Central Government, statutory
instruments, which are constructed by Government departments, and Orders passed by a
council, court or tribunal.

There are various reasons, as to why delegated legislation is necessary, the first one being
paucity of time available to the parliament to deliberate and debate every detail of complex
rules and regulations. Delegated legislation makes the process faster as the Parliament is not
in sitting at all times, and the procedure followed by the Parliament is very time-consuming
because each bill has to pass through three stages. The second reason as to why delegated
legislation is necessary is because most of the times, it so happens that Members of the
Parliament lack the required technical expertise. An example can be that of carrying out
difficult taxation proposals, in which professionals can be used by virtue of delegated
legislation, in their favored topics. It is also important for local individuals to recognize and
take their needs and requirements into consideration.

The three fundamental problems associated with legislative control over delegated legislation
are; how to distinguish between matters of administration and those of policy, how to ensure
that significant policy matters are brought to the attention of the legislature, for their
acceptance or disapproval, and how to ensure that any such quasi-laws which affect
individuals are reasonably available to them for review/modifications.

In addition to putting forward a comprehensive comparative study of legislative control over

delegated legislation in India, United Kingdom (hereinafter ‘UK’) and the United States of
America (hereinafter ‘USA’), this paper aims to put forward a detailed study of the different
mechanism of legislative control over delegated legislation as it exists in India, USA and UK.
The paper also aims to study the effectiveness of legislative control over delegated legislative
in India and various foreign jurisdictions, and hence, bring out the existing deficiencies in the
system of legislative control over delegated legislation and suggest measures to correct it.
Furthermore, this paper would throw light on the assumption made legislators that the
parliamentary control over delegated legislation in India is limited merely to theory and has
little or no practical relevance, and that a statute akin to the Statutory Instruments Act, 1946
of UK or some other practical measure would help in enhancing the effectiveness of
parliamentary control over delegated legislation.

Finally, this paper deals with the recommendations that have been provided by the committee
on subordinate legislation, and provide suggestions and solutions to the issue at hand while
considering the present legal system in India, UK and USA.

Introduction
Function of legislature is to legislate but in some cases it gives this power to the executive. It
is not only its right but its duty as the principal to see how the executive carries out the
agency entrusted to it. In India a whole system of legislative supervision over delegated
legislation has come into being.1

The parliamentary control over delegated legislation should be a living continuity as a

constitutional remedy. The fact that the delegation of legislative power has become too broad,
by this fact, the judicial control has struck, giving way to desirability and necessity of
parliamentary control. The parliamentary control in India is not very effective and needs to be
strengthened as that in UK. In UK, the laying off procedure is followed effectively because
there all administrative rule making is subjected to the control of parliament through select
committee on statutory instrument. In India, there is no statutory provision regarding ‘laying’
of delegated legislation which should be taken into consideration. The working of scrutiny
committees is though not very effective yet they have proved to be an effective body in
examining and improving the legislative control over delegated legislation. The underlying
object of the parliamentary control is to keep watch on the activities of the rule making
authorities and also to provide an opportunity to criticize them if there is an abuse of power
on their part. In India, the parliamentary control which is exercised is not effective which it
ought to be.

The aim of this research is to understand the various legislative control mechanisms over
delegated legislations as practiced in India and similar practices in various foreign
jurisdictions. The research initiates an in-depth analysis of various procedures of legislative

1
For a detailed discussion the same ,see, M.P. Jain, Parliamentary Control of Delegated Legislation in India,
1964, Public Law, 33, 152
control over delegated legislation as practiced in India and subsequently moves on to discuss
the various best practices of the world. The procedures, benefits and shortcomings of
legislative control over delegated legislation have been discussed in detail through the course
of this paper.

An Insight into Delegated Legislation

Before moving towards a comparative analysis, it is imperative that we understand that nature
of delegated legislation, its characteristics, the reasons for its growth, and the criticisms
associated with it.

Essential characteristics of Delegated Legislation:

1. Short titles, reference to earlier amendments or explanatory notes, for the purposes of
clear understanding, should be absent in the rules.
2. No extraordinary delay, i.e. a delay beyond reasonable apprehension, should occur in the
making of the sub-ordinate legislation
3. The administrative authority, to which the powers have been delegated, should ensure that
their exercise of powers does not exceed the powers prescribed in the Parent Act.
4. Essential functions of the legislature cannot be subject to delegation, i.e. they cannot be
delegated
5. ‘Delegatus non potest delegare’, which literally translates to ‘one to whom power is
delegated cannot himself delegate that power’, is a principle that is applicable in cases
and instances where power has been already delegated to an authority. Further delegation
of power by an authority to which power has been delegated, i.e. sub-delegation of power
is not encouraged.
6. General rules should not be framed with retrospective operation, unless and until the
parent Act instructs to do so.
7. Until and unless the Parent Act permits or instructs to, retrospective applicability of
general rules that are drafted should not be permitted.
8. Rules that are arbitrary and discriminatory in nature should not be framed.
9. To ensure more effectiveness and efficiency in certain cases, consultation should also be
permitted for the purposes of clarifying the nature, value or effect of a rule, or clarify any
sort of prevalent ambiguity in the draft rules.
 10. Rigid, difficult and highly technical language should not be used by Sub-ordinate
Authorities while preparing the rules, and in no manner should make it difficult or
impossible to interpret and comprehend for the public.
11. Interpreting the statutes is something that the administrative authorities are not
empowered to do, and the final authority of interpretation of the subordinate rules is
vested with the Parliament and Courts.
12. No imposition of tax or financial levy by the rules
13. Explanatory notes shall be given wherever necessary
14. Taking into account Public Interest while delegating powers

Reasons for the Growth of Delegation of Powers

The growth of delegation of powers can be attributed to many reasons in the modern
democratic state. They can be identified as follows: -
1. Pressure existing on Parliaments due to lack of adequate time
Due to the ever expanding horizons of state activity, the bulk of legislation tends to become
so much that it becomes nearly impossible for the legislature to allocate sufficient time for
the purpose discussing each and every matter in detail. This paves way for the need for
delegation of power.
2. Technical Difficulties
At times, it so happens that the subject on which a legislation is being drafted, is so technical
and specific, that it would be unreasonable to expect a legislator, a common man, to
appreciate and legislate on such technical and subjective matters, in which assistance may be
required. Hence, this paves way for the need for delegated legislation.
3. Flexibility
There has always been a need to make a provision to overlook all the unforeseen
contingencies in a legislative enactment at the time of passing a legislative enactment. The
provision so made may be for the purpose of demanding exigent action. Therefore, there is
indeed a need for flexibility, which brings out the need to delegate power.
4. Cases of Emergency
During emergency situations, when action has to be taken swiftly, the legislature may not be
able to do so, as it is not equipped with to provide a quick solution to mitigate the crisis.
Therefore, in such instances, there arises a need for the delegation of power.
Criticisms of Delegated Legislation

The following are grounds on which Delegated Legislation is often criticized: -

 1. It defeats the purpose of democracy as much of the delegated legislation is made by
people who are not elected directly or indirectly by the citizens.
2. Inconsistencies in laws can arise as parliament lacks control over delegated
legislation, and also because delegated legislation is also subject to less scrutiny by
the Parliament than primary legislation.
3. There is lack of public awareness with regard to a delegated legislation that has been
made. A law made by a statutory instrument is normally not notified to the public,
whereas the Acts of the Parliament are widely publicized.

Parliamentary Control over delegated Legislation: An overview of UK,

USA and India

The growth in the range of responsibilities of the state has ushered in an administrative age
and an era of Administrative law. Every delegate is subject to the authority and control of the
principal and the exercise of delegated power can always be directed, corrected or cancelled
by the principal. Hence parliamentary control over delegated legislation should be a living
continuity as a constitutional remedy. The fact is that due to the broad delegation of
legislative powers and the generalised standard of control also being broad, judicial control
has shrunk, raising the desirability and the necessity of parliamentary control. The
Parliamentary control over delegated legislation in USA and India is not as effective as in
UK. In UK the laying off procedure is followed effectively because there all administrative
rule-making is subjected to the control of Parliament through the Select Committee on
Statutory instruments.2 In India the control is not very much effective. There are no statutory
provisions regarding ‘laying’ of delegated legislation.

Further, though the working of the Scrutiny committees is not very effective, yet they have
proved to be an effective body in examining and improving upon the legislative control over
delegated legislation. The practice of delegated legislation enables the executive to
experiment. This method permits rapid utilization of experience and implementation of
necessary changes in application of the provisions in the light of such experience.
Experiments can be made and experience can be profitability utilized. A law passed by
Parliament has to be in force till the next session of the Parliament when it can be repealed. In

2
S. A. de Smith. “Delegated Legislation in England.” The Western Political Quarterly, vol. 2, no. 4, 1949, pp.
514–526. JSTOR, JSTOR, www.jstor.org/stable/442972 (last accessed on November 02, 2018 at 19:00 hrs IST)
situations, which require frequent adjustments, experimentation is the only answer. The
underlying object of parliamentary control is to keep watch over the rule-making authorities
and also to provide an opportunity to criticize them if there is abuse of power on their part.
Parliament has control in that the enabling or parent Act passed by Parliament sets out the
framework or parameters within which delegated legislation is made. In India, the question of
control on rule-making power engaged the attention of the Parliament. The legislative control
over administration in parliamentary countries like India is more theoretical than practical. In
reality, the control is not that effective as it ought to be.

With regard to the control of the legislature over delegated legislation, M.P. Jain states:3

“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.”

In U.S.A., the control of the Congress over delegated legislation is highly limited because
neither is the technique of “laying” extensively used nor is there any Congressional
Committee to scrutinise it. This is due to the constitutional structurization in that country in
which it is considered only the duty of courts to review the legality of administrative rule-
making.4

In England, due to the concept of Parliamentary sovereignty, the control exercised by

Parliament over administrative rule-making is very broad and effective. Parliamentary control
mechanism operates through “laying” techniques because under the provisions of the
Statutory Instruments Act, 1946, all administrative rule-making is subject to the control of
Parliament through the Select Committee on Statutory Instruments . Parliamentary control in
England is most effective because it is done in a non-political atmosphere and the three-line
whip does not come into operation. In India parliamentary control of administrative rule-

3
Principles of Administrative law (2007) 175
4
Carr, Cecil T. “Delegated Legislation in the United States.” Journal of Comparative Legislation and
International Law, vol. 25, no. 3/4, 1943, pp. 47–54. JSTOR, JSTOR, www.jstor.org/stable/754755 (last
accessed on November 03, 2018 at 16:00 hrs IST)
making is implicit as a normal constitutional function because the executive is responsible to
the Parliament.5

Object of Parliamentary Control

It is open to parliament to confer upon anyone it likes the powers which it has but of the
parliament delegates legislative powers to any other authority i.e. executive, it must ensure
that those powers are properly exercised by the administration and there is no misuse of such
powers by the executive. In Avinder Singh v. State of Punjab6, Krishna Iyer J. rightly stated
that parliamentary control over delegated legislation should be a living continuity as a
constitutional necessity.

The underlying object of parliamentary control is to keep watch over the rule making
authorities and if there is an excess of power exercised or there is abuse of power, it provides
an opportunity to the parliament to criticise them. 7 This mechanism is described as
“legislative veto”. It becomes very important for the legislature to keep a close watch on the
functions and power of executive, since the risk of power by the executive is inherent in the
process of delegated legislation. The fact that judicial control over delegated legislation is not
sufficient enough to keep administrative agencies within the boundaries of delegation and
there is an urgent need and necessity which parliament may be able to exercise efficiently.
The parliament provides a number of safeguards to secure the proper exercise of the power
by the delegate. The control is done in two ways:

1. Control at the time of passing of parent act

2. Control when legislature scrutinizes the delegated legislated.

Forms of Parliamentary Control over delegated Legislation in India, UK

and USA

In India parliamentary control of administrative rule-making is implicit as a normal

constitutional function because the executive is responsible to Parliament. The various
control mechanisms as followed in India are:

5
Ramesh Narain Mathur, Legislative Control of Delegated Legislation A Survey, The Indian Journal of Political
Science, Vol. 21, No. 1 (January—March, 1960), pp. 25-37, available at https://www.jstor.org/stable/41852089
(last accessed on November 09, 2018 at 21:00 hrs IST)
6
Avinder Singh v. State of Punjab AIR 1979 SC 321
7
Lohia Machines Limited v. Union of India AIR 1985 SC 421
Direct General Control
Direct but general control over delegated legislation is exercised-

(a) Through debate on the Act which contains delegation. Members may discuss anything
about delegation including necessity, extent, type of delegation and the authority to whom
power is delegated;
(b) Through questions and notices. 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 the Conduct of Business in Lok Sabha Rules;
(c) Through moving resolutions and notices in the House. Any member may move a
resolution on motion, if the matter regarding delegation of power is urgent and
immediate, and reply of the government is unsatisfactory;
(d) Through vote on grant. Whenever the budget demands of a ministry are presented any
member may propose a cut and thereby bring the exercise of rule-making power by that
ministry under discussion;
(e) Through a private member’s 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, members may discuss delegation. However, these methods are rarely used.

Direct Special Control

MEMORANDUM OF DELEGATION
First step in parliamentary control of delegated legislation is taken at the stage of delegation.
A rule of procedure of each House or Parliament requires that a bill involving proposal for
delegation of legislative power shall be “accompanied by a memorandum explaining such
proposals and drawing intention to their scope, and stating also whether they are of
exceptional or normal character.”8

The rule is of an informational nature. This rule is however salutary. In practice however, the
rule does not amount to much as the memoranda accompanying the bills are usually of a
routine nature and not very informative.

The Lok Sabha Committee on Subordinate Legislation has emphasized that the rule is
mandatory and the memoranda attached to a bill should be given full purport and effect of the
delegation of power to subordinate authorities, the points which may be covered in the rules,

8
Lok Sabha Rule 70, Rajya Sabha Rule 65
the particulars of subordinate authorities who are to exercise the delegated power, and the
manner in which the power is to be exercised.9

The purpose of the memorandum is to focus the attention of the members of the Parliament to
the provisions of the bill involving delegation of legislative power. The Speaker may also
refer bills containing provisions for delegation of legislative powers to the Committee to
examine the extent of such powers sought to be delegated.10

LAYING PROCEDURE
The second link in the chain of legislative control comes into play after the rules are made.
This is achieved by “laying procedure”.11

A technique to invoke legislative supervision of delegated legislation is a provision in the

delegating statute requiring laying of the rules before the Legislature. The requirement of
laying Rules indicates check on excessive delegation. 12 There is no general obligation in the
Administration to lay rules before the Houses. It depends on the term of each delegating
statute.

Simple Laying Formula

A simple laying formula which says that the rules shall be laid before the Legislature serves
no purpose except being of an informational nature. Informs the Houses of Legislature about
the content of the delegated legislature made by the Government from time to time under
various statutes

Affirmative Resolution
Envisages that the rules to be laid before the Legislature but to remain effective they must be
approved by the House.

Illustration: In Article 352 of the Constitution which says that a proclamation of emergency
“shall be laid before each House of Parliament” and “shall cease to operate at the expiration
of one month” unless it is approved by both Houses of Parliament. It means that
proclamation comes into force as soon as it is promulgated but thereafter it remains alive for
one month unless approved by both Houses of Parliament.
9
Singh, Mähendra Prasad. “THE INDIAN PARLIAMENTARY-FEDERAL EXECUTIVE.” The Indian
Journal of Political Science, vol. 56, no. 1/4, 1995, pp. 31–44. JSTOR, JSTOR, www.jstor.org/stable/41855723
(last accessed on November 02, 2018 at 17:00 hrs IST)
10
Directions 103A of the Speaker; Directions by The Speaker Lok Sabha 66 (3rd Ed., 1980)
11
Delegated legislation in India, ILI 1964, Pg no. 166-169
12
DCM v Union of India (1983) 4 SCC 16
Illustration: Another example Article 356. A proclamation issued by the Centre assuming
the Government of the State has to be laid before both the Houses of Parliament and it ceases
to operate after two months unless approved by both Houses.

In some exceptional cases, the delegating statute may stipulate that the rules be laid before
the Houses before they become enforceable. In such a case, the rules are laid in the draft form
and become effective either automatically after the passage of the stipulated period, or, when
the House pass resolutions affirming the rules. This is termed as laying with affirmative
procedure and it is not frequently used in India.

Two statutes where affirmative procedure is followed are:

1. Salaries and Allowances of Ministers Act, 1952; and

2. Essential Services Maintenance Act, 1968

An example of laying with an affirmative vote is to be found in Water (Prevention and

Control of Pollution) Cess Act, 1977. S.3 of the Act impose a cess on every scheduled
industry.

S. 16(2) provides that a notification amending the Schedule shall be laid before both the
Houses of Parliament and the Central Government shall seek approval of the Parliament to
the notification by a resolution within 15 days. In the instant case, the notification was laid
but no resolution passed by the House approving the same. Accordingly the Supreme Court
ruled that the notification did not become effective in the absence of approval of the two
Houses13 and the Schedule was never amended and the cess levied on the concerned industry
was invalid.

The procedure by way of laying with an affirmative resolution is thus regarded as

mandatory.

The Rajya Sabha Committee on Subordinate Legislation is of the opinion that the affirmative
procedure would make parliamentary control more effective and meaningful. The committee
recommended that it was highly desirable to follow such a procedure where the rule-making
power may:

13
Chairman, H.P. State Pollution Control Board v. National Hydroelectric Power Corp., AIR 2001 SC 2512.
The decision has been criticized in Prohibition and Excise Suptd. A.P. v. Toddy Toppers Co-op Society AIR
2004 SC 658 pp 667, 668 and it has been observed that it “must be confined to the fact of the matter obtaining
therein”
 a) Trespass unduly on personal rights and liberties;
b) Infringe the rule of law and the rules of natural justice;
c) Impose or increase taxation, fees or charges;
d) Lay down a policy not clearly identifiable in the enabling Act or make a departure in
policy;
e) Involve considerations of special importance (e.g. powers to create new varieties of
criminal offence of a serious nature)

Negative Procedure
This formula envisages that the legislature may annul the draft rules laid before it. Now a
days, the laying formula occurs more frequently in the Central statutes and a standard
formula has been evolved for this purpose. It is as follows:

“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 the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree 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.”

Highlights of this formula:

i. Formula requires rules to be laid before each House of Parliament as soon as possible.
There is no time frame within which the rules are to be laid before the House after
promulgation
ii. The laying procedure envisaged is laying with a negative resolution.
iii. The rules are to be laid for 30 session days. This period may be comprised in one session
or in two or more successive sessions.
iv. Before the expiry of the session immediately following the session or the successive
sessions aforesaid, if both Houses agree, they can make any modifications in the rules or
even annul them.
v. The rules come into force as soon as they are made and the laying procedure takes effect
thereafter.14

14
On laying procedure and its advantages see Thanmal v. Union of India, AIR 1959 Raj 206
 vi. If any modification is made in the rules, or they are annulled, by the House then the rules
operate in the modified form or be of no effect, in the future.
vii. If they are annulled then they will cease to exist from the date of annulment
viii. The rules can be annulled or modified only when both Houses agree.
ix. In this formula, the initiative to move resolution to annul or modify the rules has to be
taken by the members of the House. The Government is under no obligation to take
initiative in this regard.
x. In this “laying” formula, there is no time-frame within which the rules have to be laid
before the Houses after their promulgation. The phraseology used is “as soon as may be”
after the rules are made. In practice, often the rules are laid long after they are made. This
reduces the effectiveness of the parliamentary control over delegated legislation.

The laying formula as contained above is regarded as being directory in nature and not
mandatory.15

This standardized laying formula is now found practically in each Central statute enacted by
Parliament.

The earliest instance of laying procedure in India can be traced to Immigration Act, 1922.
Between 1929 to 1939 only three Acts made provisions for laying, namely, the Insurance
Act, 1938, Agriculture Products Act, 1938, and the Motor Vehicles Act, 1939. After a gap of
five years, the Central Excise Act and the Salt Act, 1944 and the Indian Aircraft Act, 1944
made provisions that the rules framed thereunder must be laid on the table of the House.

Only in a few Acts, i.e. Insurance Act, 1938 and the Aircraft Act, 1944 provision was made
for laying subject to a negative resolution. The negative resolution procedure differs from its
counterpart in England as, in India, it includes the power of modification also.16

Members can raise within the limits of parliamentary procedure, such discussion as is possible over the rules
and criticize illegal or extravagant use of rule-making power. Members can also prescribe for the repeal of
statutory provision under which obnoxious rules are made and revoking of those rules.
In Britain however, the general rule is that a statutory instrument is to be laid before Parliament prior to its
coming into operation. A proviso lays down the procedure to be adopted in such a case: See, S. 4 (1) of the
Statutory Instruments Act, 1946. The laying procedure in that country has been formalized and systemized by
this statute.
In Bharat Hari Singhania v EWT AIR 1994 SC 1355 (para 25) it was held that the requirement of laying before
the House is one form of parliamentary control. Indeed the rules are effective as soon as they are made and
published.
15
Prohibition & Excise SUPDT v. Toddy Toppers Co-op Society (2003) 12 SCC 738 laying down of sub
ordinate legislation held as directory
16
See S. 5(3)(1) of Muslim Women’s (Protection of Rights on Divorce) Act, 1986 and S.26 of Employees’
Provident Fund Act, 1986
Three other Acts, namely, Representation of the People Act, 1951, Indian Services Act, 1951
and Indian Development and Regulation Act, 1951 contain the right of only the modification
of the rule and not annulment. The period during which the rules can be modified varies from
seven days to one month. It may be noted that in England this is a uniform period of 40 days.
The Indian Tariff (Amendment) Act, 1950 provides an illustration where rules are made
subject to laying with affirmative resolution.

By the Delegated Legislation Provisions (Amendment) Act, 1983 our Parliament has
amended 50 Indian statutes and inserted provisions for laying before the State legislatures
and Parliament where there were no such provisions and in other instance provided for
annulment or modification within a specified period.

A typical laying clause reads as follows-

“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 the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree 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.”

In Atlas Cycle Industries Ltd17 the Supreme Court noticed that there are three different laying
clauses which assume different forms depending on the degree of control which the
legislature may like to exercise namely-

(i) Laying without further procedures

(ii) Laying subject to negative resolution

(iii) Laying subject to affirmative resolution

The court observed that the use of the word shall is not conclusive or decisive of the matter
and the court has to ascertain the intent of legislature which is the determining factor. Two
considerations according to the court are relevant:

17
Atlas Cycle Industries Ltd. v. State of Haryana (1979) 2 SCC 196, para 21, p. 203: AIR 1979 SC 1149
1. Absence of a provision for contingency of a particular provision not being complied with
and;

2. Serious general inconvenience and prejudice likely to result to general public if the act is
declared invalid for non-compliance with the provision.

LEGALITY OF LAYING
In a simple laying formula, failure to lay the rules does not affect their legal validity. Even if
the statutory provision says that “rules shall be laid”, it remains directory. The use of the
word “shall” does not make it mandatory. 18 Nevertheless the responsibility remains.
Regulations made under the All India Services Act, 1951 were not laid before Parliament for
several years. To remedy the omission, Parliament passed the All India Services Regulations
(Indemnity) Act, 1975 to indemnify the Government and its officials from all consequences
arising out of omission to pay.

Reasons to support the view that laying provisions are mandatory viz, laying provision forms
part of the general publication requirement; requirement is an exercise by the Legislature of
its right to check the action of its legislative delegate.

LEGAL CONSEQUENCES OF NON-COMPLIANCE WITH THE LAYING PROVISIONS

In England the provisions of Section 4(2) of the Statutory Instruments Act, 1946 makes the
laying provision mandatory for the validation of statutory instruments. 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.

In Narendra Kumar v. Union of India,19 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,20 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 because of World
War II emergency. The rules were placed during the second session. Court held that the rules
18
Jan Mohammad Noor Mohammad v. State of Gujarat, AIR 1966 SC 385
19
Narendra Kumar v. Union of India 1960 SCR (2) 375
20
Jan Mohammad Noor Mohammad v. State of Gujarat, AIR 1966 SC 385
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.

In the absence of any general law in India regulating laying procedure, the Scrutiny
Committee made the following suggestions:

(i) All Acts of Parliament should uniformly require that rules be laid on the Table of
the House “as soon as possible”.
(ii) The laying period should uniformly be thirty days from the date of final
publication of rules; and
(iii) The rule will be subject to such modifications as the House may like to make.21

LEGALITY OF LAYING BEFORE STATE GOVERNMENT WHEN POWER IS CONFERRED BY

CENTRAL STATUTE
Many Central Statutes enacted either under the Union List of the Seventh Schedule or the
Concurrent List of that Schedule confer rulemaking power on the State Governments. This
has raised the power of laying of such rules. The Lok Sabha Committee has examined the
question in detail. The Committee has realized the difficulty of placing such rules before the
Parliament because the Central Government or the Minister of the department concerned has
no responsibility in framing these rules, and thus no purpose would be served by the
Parliament discussing those rules. The Committee felt that such rules should be laid before
the State Legislature concerned.

From point of view of legality of such laying before the State Legislature, the Committee
made a distinction between those Central Acts which fell under the Concurrent List and those
which came under the Union List. As regards the former, the Committee found that there
could be three alternatives:

a. The State Legislature could make a provision in its rules of procedure;

b. The Speaker of the State Legislature could issue a direction to the State Committee on
Subordinate Legislation to examine these rules; and

21
See Thakker, C.K.: ADMINISTRATIVE LAW, (1992), Eastern Book Company, p. 152
c. A provision could be made in all the Central Acts concerned requiring that the rules made
by the State Government be laid before the State Legislature.

The Committee preferred the last alternative.

As regards Acts falling in the Union List, problems requiring rules laid before the State
Legislature as the power has been delegated to the State Government and not the Legislature.
The Committee however felt that there would be no constitutional impropriety if such rules
are laid before the State Legislature and are examined by its Committee on Subordinate
Legislation. Further the Committee was of the view that even if the rules are laid before the
State Legislature, it is only the State Government and not the Legislature which will have the
power to modify the rules.

The Committee has pleaded for laying not only of rules but also other delegated legislations
like notifications, regulations, bye-laws etc. whether promulgated by the Central Government
or by any other authority under a central act. For instance, the Customs Act, 1962 and the
Central Excises and Salt Act, 1944 empower the Central Government to promulgate rules and
notifications. The former Act provides for laying of rules and certain notifications, but the
latter Act only provide for laying of rules. The Committee took the view that all notifications
under both the statutes are to be laid.

According to the direction of the Speaker, the Committee may examine all legislative orders
framed by the Executive under the Constitution, or a statute whether laid on the table of the
House or not.22

Inspite of laying, legislative orders are hardly discussed in the House, except when it is a case
of laying with an affirmative resolution. The laying requirement is directory when laying is
not coupled with the requirement of passing affirmative resolution by the House.

LAYING PROCEDURE AND JUDICIAL REVIEW

Laying procedure does not exclude judicial review of delegated legislation. Laying of rules
has no effect on their legal validity. It confers no sanctity or immunity and has no impact on
the doctrine of ultra vires. When rules are required to be laid before the Legislature they
continue to remain subject to the ultra vires doctrine.

22
Direction 103, Directions by the Speaker Lok Sabha 65 (3rd Ed., 1980)
Laying of rules does not make them valid if they are ultra vires the statute under which they
are made, and does not prevent the courts from scrutinizing the rules vis-à-vis the relevant
statute. In Hukam Chand23 while declaring that the rules could not be made with retrospective
effect, the Supreme Court also ruled that laying requirement could not confer validity on such
rules.

The mere fact that a notification is required to be laid before Parliament makes no difference
as regards the jurisdiction of the Court to pronounce on its validity. 24 The reason is that the
Legislature does not probe into the question of legality of rules; the courts do. While
legislature looks into the merits of the rules, or the policy underlying the rules in question, a
court probes in to the legality thereof, i.e. whether the rules fall within the parameters of the
enabling provision.

This proposition has been accepted by the Supreme Court in a number of cases.25 The Court
has observed in this connection:26

“The fact that the regulations…when made have to be laid down before the Legislature
concerned does not confer any more sanctity or immunity as though they are statutory
provisions themselves. Consequently, when the power to make regulations is confined to
certain limits and made to flow in a well defined canal with stipulated banks, those actually
made or shown and found to be not made within its confines but outside them, the courts are
bound to ignore them when the question for their enforcement arises…”

In some cases,27,while assessing the validity of the statutory provision impugned on the
ground of excessive delegation, the Supreme Court has also taken into account a laying
procedure and allowing the House to suggest modifications therein provided in the relevant
statute to uphold its validity. This judicial approach is based on the premise that such a
provision indicates that Parliament has not abdicated its powers and Control of Parliament
was “sufficient to check any transgression of permissible limits of delegated legislation by
the delegate.”28

23
Hukam Chand v. Union of India, AIR 1972 SC 2427
24
Dai-Ichi Karkaria Ltd. v. Union of India, AIR 2000 SC 1741
25
Indian Express v. Union of India, AIR 1986 SC 515
26
Bharatidasan University v. All India Council for Technical Education, AIR 2001 SC 2861, Also, R v. H.M.
Treasury ex p. Smedley Wade, Administrative Law, 870 (VI Ed)
27
Delhi Cloth and General Mills Co. Ltd., AIR 1983 SC 512; JAIN, CASES, I, 216; Lohia Machines Ltd. v.
Union of India, AIR 1985 SC 421
28
Quarry Owners’ Association v. State of Bihar AIR 2000 SC 2870
SR Bommai v. Union of India29 in the context of Art. 356 of the Constitution which provides
for laying with an affirmative vote. A Presidential proclamation under Article 356 has to be
laid before and approved by the two Houses of Parliament to remain in force after two
months. The question was whether the validity of a proclamation can be questioned in a court
after its approval by the two Houses? Answering in the affirmative, the Court ruled that “if
the proclamation is invalid, it does not stand validated because it is approved by the
Parliament.” “Judicial Review is in no way inhibited by the fact that rules or regulations have
been laid before Parliament and approved.”

FAILURE TO LAY IN UK AND INDIA

In England, in Bailley v. Wiliamson30, the condition of laying was held directory. However
the situation has changed after passing of the Statutory Instruments Act, 1946 and in R. v.
Sheer Metal craft31, the court held that delegated legislation becomes valid only after it was
laid before the parliament.

In India, Express Newspaper (P) Ltd. v. Union of India 32 Supreme Court observed by way of
obiter dicta that the provision regarding laying was mandatory. But in In re Kerala Education
Bill, 1957,33 the Supreme Court observed, “After the rules are laid before the Legislative
Assembly, they may be altered or amended and it is then that the rules as amended become
effective.

Indirect Control Mechanism

PARLIAMENTARY COMMITTEES
Parliamentary control is further exercised through two Committees on subordinate
legislation, one in each House.34 The Lok Sabha Committee on Subordinate Legislation is
older than the Rajya Sabha Committee on Subordinate Legislation. The former was
established in 1953, and the latter in 1964.

The need for the same was felt because mere laying of rules before a House would not be of
much efficacy unless some method is evolved to scrutinize the rules so laid. House, being
pressed for time cannot exercise the supervisory function over delegated legislation itself.

29
SR Bommai v. Union of India AIR 1994 SC 1918
30
Bailley v. Wiliamson (1873) 8 KB 118
31
R. v. Sheer Metal craft (1954) 1 QB 586
32
Express Newspaper (P) Ltd. v. Union of India AIR 1958 SC 578
33
In re Kerala Education Bill, 1957 AIR 1958 SC 956
34
Lok Sabha Rules 317-322; Rajya Sabha Rules 204-212
Also, individual members are not adequately equipped to carry on a scrutiny of the massive
and complicated delegated legislation. Some organized effort was necessary so that there
might be some kind of automatic scrutiny of delegated legislation on behalf of the House.
With this objective in view, the two Houses in India have set up the Committees on
subordinate legislation.35

The Committees on subordinate legislation in India have been established on the model of the
British Committee.

 Lok Sabha Committee consists of 15 members, appointed by the Speaker for a year, so
that it represents all political parties in the House in proportion to their respective
strengths. The Chairman is usually a member of the opposition, and ministers are
debarred from the Committee‟s membership.
 Rajya Sabha Committee also consists of 15 members who are nominated by the Chairman
of the Rajya Sabha. The Chairman of the Committee is also appointed by the Chairman of
the House. There is no prohibition in a Minister becoming a member of the Rajya Sabha
Committee. The Committee is to hold office until a new Committee is nominated

Tradition of the Committees is that all the decisions are arrived at unanimously.

Each Committee is to scrutinize orders laid before the House and consider the following in
relation to each other:36

1. Whether the order is in accord with the general object of the Constitution or the Act
pursuant to which it is made;
2. Whether it contains matter which in the opinion of the Committee should more properly
be dealt with in an Act of Parliament;
3. Whether it contains imposition of any tax;
4. Whether it directly or indirectly bars jurisdiction of the courts;
5. Whether it gives retrospective effect to any of the provisions in respect of which the
Constitution or the Act does not expressly give any such power;
6. Whether it involves expenditure from the Consolidated Fund of India or the public
revenues;

35
In Britain, in 1944, the Select Committee on Statutory Instruments was established in the House of Commons.
Since 1973, a Joint Committee on Statutory Instruments of both Houses has been established.
36
Rule 320 of the Lok Sabha Rules, Rule 209 of the Rules of Procedure and Conduct of Business in Rajya
Sabha
 7. Whether it appears to make some unusual or unexpected use of the powers conferred by
the Constitution or the Act pursuant to which it is made;
8. Whether there appears to have been unjustifiable delay in its publication or the laying of
it before the Parliament; and
9. Whether for any reason its form or purport calls for any elucidation.

Each committee places its reports before the respective House. The Committee may report,
along with the grounds, its views that rules may be annulled wholly or in part or amended in
any respect.

The reports of the Committee are not discussed in the House but the Government gives due
weight to the views of the Committee and seeks to implement the suggestions made therein.
The reports are very instructive and informative.37

Some of the suggestions made by the Committees and improvements made as a result
thereof, are noted below:

i. The present day laying formula has come into vogue because of the Lok Sabha
Committee’s efforts.
ii. The Committees have constantly objected to delays in laying before Parliament after they
are made. They have insisted that the rules be laid before the Houses as soon as possible
after they are made. It is one of the specific functions of the Committees to take note of
any unjustifiable delay in laying rules before the Parliament.
iii. The Committees do not take kindly to the attempts made to curtail judicial review through
rules and have constantly advocated the principle that a substantive provisions excluding
jurisdiction of courts, if thought necessary should be made through Parliament and not by
subordinate legislation.
iv. The Committees have objected to the vesting of the final power of interpretation of rules
in the rule-making authority.
v. Taken the view that a financial levy, whether tax, fee or any other charge should be
imposed by a statute and not by rules.
vi. Have criticized some rules on the ground of using complicated language or containing
ambiguities.

37
Kashyap, Subhash C. “A New Parliamentary Initiative: Subject-Based Standing Committees of
Parliament.” Economic and Political Weekly, vol. 25, no. 40, 1990, pp. 2273–2279. JSTOR, JSTOR,
www.jstor.org/stable/4396842 (last accessed on November 05, 2018 at 21:00 hrs IST)
vii. Committees have taken objection to giving retrospective operation to the rules unless
expressly conferred by the Parent legislation.
viii. Pointed out that certain provisions made through rules be better made through an Act of
Parliament.

Illustration: The Lok Sabha Committee has objected to delegation of rule-making power to
the Government to make rules regarding allowances to the Ministries under the Salaries and
Allowances of Ministers Act, 1952, on the ground that it amounts to ministers legislating for
themselves.

Illustration: The Rajya Sabha Committee has taken objection to a rule conferring on an
authority all the powers of a civil court. The conferment of powers of court on an authority
being a matter of substantive law, it should be provided in the statute itself and not in the
rules made under it.

Committees function is not to criticize or formulate policies embodied in the rules, or to

review them on merits; their task is to scrutinize application of policy, its forms and its
results. Such a restriction is imposed because of the fear that the Committees consisting of
party men, may divide on party lines on policy matters which might compromise their
efficacy.

ix. Committees have often insisted on the necessities of providing procedural safeguards in
the rules against abuse of administrative powers. Insisted on observance of principles of
natural justice.
x. A general power to the Committees to bring to the notice of the respective House any
matter relating to an order which in its opinion deserves the notice of the House. They
have commented on the delay in making rules under several Acts.
xi. Lok Sabha Committee has also suggested ways and means of publication of rules in the
Gazette of India with a view to make it easy and convenient to the people to locate them.
(Even when the parent act did not insist on the publication of rules)

“Delegated legislation ought not only to be certain but also certainable”

Parliamentary Control Over Delegated Legislation in UK

In the UK, much delegated legislation takes the form of “statutory instruments”. 38 There is a
drafting manual, and annual volumes of statutory instruments are published. The parent act
may give either house the power to disallow a statutory instrument, but there is a reluctance
in the Lords to press matters to a division. This is probably because, when the Lords defeated
the Southern Rhodesia (United Nations Sanctions) Order 1968, there was a proposal to
remove the Lords’ power of veto. Their Lordships have not since then attempted to defeat a
statutory instrument.39

In England the technique of laying is very extensively used because the administrative
delegation is subject to the supervision of the parliament under the Statutory Instruments Act,
1946, which prescribes a timetable. The most common form of provision provides that the
delegated legislation comes into immediate effect but is subject to annulment by an adverse
resolution of either House.40

The UK also occasionally uses an unusual type of affirmative resolution, under which a
delegated instrument comes into immediate effect but must be approved by an affirmative
resolution of each house within 40 days.

The procedure of the House of Commons for handling such affirmative resolutions is hardly
satisfactory. The debate is brief, not more than one and a half hours. It often takes place
before the statutory instruments committee has made its report, and the committee chair
sometimes does not even have the opportunity to speak. The system in the Lords is better, for
at least they have the committee report before the debate is held.

There are two parliamentary committees dealing with statutory instruments, a joint committee
of seven Lords and seven MPs, and a separate Commons select committee (made up of the
seven MPs on the joint committee) to deal with instruments involving taxation or money,
over which the Lords have no power. The chair of the joint committee is traditionally a
member of the opposition. The legal advice to the committees is provided by parliamentary
officers, who are responsible to the Speaker, not the government.
38
Nicholas Winterton, „Procedural Reform‟, The Parliamentarian, vol. LXXXI, no. 3, 2000, p. 14.
39
S. A. de Smith. “Delegated Legislation in England.” The Western Political Quarterly, vol. 2, no. 4, 1949, pp.
514–526. JSTOR, JSTOR, www.jstor.org/stable/442972 (last accessed on November 02, 2018 at 19:00 hrs IST)
40
Laxmikanth, Public Administration, Tata MC-Graw-Hill Education, p. 212, available on
<http://books.google.co.in/books?
id=9JcCVqJ14gC&dq=is+parliamentary+control+over+delegated+legislation+effective&source=gbs_navlinks_
s>,
There are two significant omissions in the standing committee’s power. The committee is not
empowered to report instruments which trespass unduly on rights and liberties, a provision
which is common in other parliaments. The second omission is that the committee is not
empowered to report on the merits of the instrument or on the policy behind it, even to the
extent of suggesting that the subject matter is too important to be done by delegated
legislation, and should be debated by the Parliament as an amendment to the act.

Parliamentary Control Over Delegated Legislation in USA

In U.S.A., the control of the Congress over delegated legislation is highly limited because
neither is the technique of “laying” extensively used nor is there any Congressional
Committee to scrutinise it. It is regulated by the Reorganization Acts of 1939 to 1969.41

Problems associated with Parliamentary Control over Delegated

Legislation in India

Criticism of Laying

Various criticisms leveled at the process of laying in India are:

 Court has placed an undue emphasis on the laying procedure which is informational in
nature. It triggers no automatic control mechanism in the legislature.
 Even as an informational mechanism, its efficacy is doubtful.
 If an affirmative vote is needed in the House to effectuate the rules, the Government will
take the necessary step to effectuate the same. But if the laying is coupled with a negative
vote, it is inconceivable that the Government will let the House negative the rules made
by the government. Court has attributed an exaggerated importance to the laying
provision.

Shortcoming of Committees

One of the major grievances with committees is that they do not go into questions of merit or
policy underlying the delegated legislation, and that the area of Administrative policy making
is largely immune from the Committees’ scrutiny. Policy is made today by Administration

41
“‘Laying on the Table’. A Device for Legislative Control over Delegated Powers.” Harvard Law Review, vol.
65, no. 4, 1952, pp. 637–648. JSTOR, JSTOR, www.jstor.org/stable/1336767 (last accessed on November 02,
2018 at 17:00 hrs IST)
 through its power to make rules and the Legislature cannot always effectively scrutinize such
policies.

Effectiveness of Parliamentary Control in India, USA and UK

Is Parliamentary control really effective? Let us see the practical relevance of the
Parliamentary Control mechanisms over delegated legislation as it exists in three different
jurisdictions.

Effectiveness of Control in India

The legislative control over administration in parliamentary countries like India is more
theoretical than practical. In reality, the control is not that effective as it ought to be. The
following factors are responsible for the ineffectiveness of parliamentary control over
delegated legislation in India:

(i) The Parliament has neither time nor expertise to control the administration which has
grown in volume as well as complexity.
(ii) The legislative leadership lies with the executive and it plays a significant role in
formulating policies.
(iii) The very size of the Parliament is too large and unmanageable to be effective.
(iv) The majority support enjoyed by the executive in the Parliament reduces the possibility of
effective criticism.
(v) The growth of delegated legislation reduced the role of Parliament in making detailed
laws and increased the powers of bureaucracy.
(vi) Parliament’s control is sporadic, general and mostly political in nature.
(vii) Lack of strong and steady opposition in the Parliament have also contributed to the
ineffectiveness of legislative control over administration in India.
(viii) There is no automatic machinery for the effective scrutiny on behalf of the Parliament as
a whole; and the quantity and complexity are such that it is no longer possible to rely on
such scrutiny.

Effectiveness of Control in UK

In England the technique of laying is very extensively used because the administrative
delegation is subject to the supervision of the parliament under the Statutory Instruments Act,
1946, which prescribes a timetable. The most common form of provision provides that the
delegated legislation comes into immediate effect but is subject to annulment by an adverse
resolution of either House.

Effectiveness of Control in U.S.A

In U.S.A., the techniques which are used in England are not extensively used nor there any
special committee to scrutinise the same. Therefore, the control of the congress over
delegated legislation is highly limited. There are certain recommendations made which are as
follows:42

1. The limits which has been prescribed for the law making power which parliament intends
to confer on a minister should always be expressly defined in clear language by the
statute which confers it and when discretion in conferred, its limit should be defined with
equal clearness.
2. The use of “Henry VIII Clause” conferring power on a minister to modify the provisions
of acts of parliament should be abandoned in all and should not be permitted by
parliament.
3. This clause should never be used except for the purpose of bringing an act into operation
and should be subject to time limit of one year from the date of passing of act.
4. The use of the clauses which are designed to exclude the jurisdiction of the courts to
enquire into the question of legality of a regulation or order should be abandoned in all
cases.
5. Enabling act should contain express provision that the rules made there under would be
subject to such modifications as the house may like to make.

Recommendations by Committee on Subordinate Legislation

The need and importance of subordinate legislation has been underlined by the Supreme
Court in the Gwalior Rayon Mills Mfg. (Wing.) Co. Ltd. v. Asst. Commissioner of Sales Tax
and Others43 thus:

“Most of the modern socio-economic legislations passed by the legislature lay down the
guiding principles and the legislative policy. The legislatures because of limitation imposed
upon by the time factor hardly go into matters of detail. Provision is, therefore, made for

42
Geoffrey Philip Wilson, Cases and materials on Constitutional and Administrative law, 1976 pg 362
43
Gwalior Rayon Mills Mfg. (Wing.) Co. Ltd. v. Asst. Commissioner of Sales Tax and Others AIR 1974 SC 1660
(1667)
 delegated legislation to obtain flexibility, elasticity, expedition and opportunity for
experimentation. The practice of empowering the executive to make subordinate legislation
within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a
modern welfare State.”

The Committee on Subordinate Legislation has made the following recommendation in order
to streamline the process of delegated legislation in India. The same are reproduced below as:

(i) Power of judicial review should not be taken away or curtailed by rules.
(ii) A financial levy or tax should not be imposed by rules.
(iii) Language of the rules should be simple and clear and not complicated or ambiguous.
(iv) 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.
(v) 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.
(vi) Discriminatory rules should not be framed by the administration.
(vii) Rules should not travel beyond the rule-making power conferred by the parent act.
(viii) There should not be inordinate delay in making of rules by the administration.
(ix) The final authority of interpretation of rules should not be with the administration.
(x) Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has proved to be a fairly
effective body in properly examining and effectively improving upon delegated legislation in
India. Sir Cecil Carr aptly remarks: “It is evidently a vigorous and independent body.”

Therefore, legislature in essence, exercises its control over the delegated legislation or the
rule-making power by these two methods: namely, ‘laying’ procedure and via Scrutiny
committees.

Conclusion and Suggestions

After analysing the role of delegated legislation it can be said that delegated legislation has
come to stay and the ground reality of its existence and continuance in the present legal
system cannot be ignored. With the growing nations and more functions to be performed by
the legislation and thereby delegating its functions to the executive is equally grave to be
taken into consideration. It is therefore, of utmost importance that there should be proper
control on exercise of legislative power by the executive. There are certain safeguards which
are laid down to be followed which operate at two levels: firstly, when legislature is
delegating such power in favour of executive; and secondly, there should be ‘control
mechanism’ so that the power is not abused by the executive. Further, it can be said that the
safeguards which are laid down can be efficiently followed when the legislature lay down
certain policy and perform essential legislative functions. If this is not done, then the
consequences will be bad. But as stated, even where the delegation is legal and lawful, there
should be ‘control mechanism’ to ensure proper exercise of power by the executive.

It is important to note that in a country like America which has strict separation of powers
thereby making parliamentary control a mere fiction in accordance to their constitution. In the
similar way, India with a quasi federal structure and the separation of power, failed to realise
the significance and effectiveness of parliamentary control as a check on excessive
delegation. The parliamentary controls in England are most effectively utilized and have
great functioning throughout the system because it is done in a non-political atmosphere with
the uniform law which scrutinizes it. Many recommendations which are made in the Statutory
Instruments Act, 1946 are being followed by India. Thus, India should learn from this and
strive to move away from dreams of individual power to realizing the value of true
democracy. In India, if the parliamentary control of administration rule making is to be made
a living continuity and be strengthened as the Statutory Instruments Act, 1946, it is necessary
to enhance the role of committees of parliament and a separate law should be made regarding
that. The control which is exercised i.e. direct general control and direct special control can
be both effectively utilized both in their own field which can thus be helpful for avoiding
future litigation and harassment to the people of our democracy. Further, the court on which
the parliamentary proceedings are much dependent are caught in the web of lack of uniform
laws as they decide cases differently on different principles. In that case, judiciary too has
failed to give a clear direction. 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
this, it is the parliament who should take active interest and control in order to reduce
pressure on judiciary by not merely dependent on judiciary and keep alive the doctrine
separation of power without clogging the wheels the government

The parliamentary control over delegated legislation it can be said that it is considered as
weak, undeveloped in the present legal system. Though recommendations are made which
would have an impact in near future. The reasons which are there for its weakness is that of
too much dependence on the court for every single matter, lack of legal skills with the
parliamentarians etc.

If in India parliamentary control over delegated legislation is to be made a living continuity, it

is necessary that the role of the committees of the Parliament must 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 be supplemented by a specialised official
body to make the vigilance of delegated legislation more effective. Besides this other
measures should be taken to strengthen the control of Parliament over delegated legislation.

Thus it was seen that Parliamentary control over delegated legislation in USA and India is not
as effective as in UK, however, steps have been taken to enhance the control mechanisms in
both these nations, which is a positive development.

Concluding Remarks:

Thus we can conclude by stating that:

1. Based on the case laws discussed above and observation of the day to day affairs it would
be reasonable to say that the legislative controls over delegated legislation have been
reduced to mere formalities. There is however, some positive aspect to it i.e. the working
of the committees. Therefore, the parliamentary control over delegated legislation in India
is limited merely to theory and has little or no practical relevance.
2. On the basis of the cases discussed above and moving ahead with the knowledge that the
parliamentary control over delegated legislation in India is limited merely to theory and
has little or no practical relevance has been approved, it becomes imperative that, a statute
be passed on similar lines to the Statutory Instruments Act, 1946 of the UK, so that
Parliamentary control over delegated legislation is not reduced to merely a formality.
Therefore, an assumption by many legislators that a statute akin to the Statutory
Instruments Act, 1946 of UK or some other practical measure would help in enhancing
the effectiveness of parliamentary control over delegated legislation, does indeed have a
justification.