PARLIAMENTARY CONTROL OVER ADMINISTRATIVE RULE MAKING

Divyani Swamy,

Christ Academy Institute of Law

ABSTRACT

This research paper delves into the realm of delegated legislation, examining its nature, parliamentary control mechanisms, and factors contributing to its rapid growth. The study compares the parliamentary control systems in India, England, and the USA, exploring their effectiveness and highlighting distinctive approaches. The research aims to evaluate the oversight mechanisms, investigating how well they ensure accountability and adherence to legislative intent. The paper concludes by emphasizing the need for robust control mechanisms to uphold the integrity of legislative authority and ensure responsible rule-making.

INTRODUCTION

Delegated legislation is generally a type of law made by the executive authority as per the powers conferred to them by the primary authority to execute, implement, and administer the requirements of the primary authority. It can be said that it is the law made by any person or authority under the power of parliament. It is also known as subordinate legislation in administrative law. It allows the bodies beneath the primary authority or legislature to make laws according to the requirement.

STATEMENT OF PROBLEM

Exploring the effectiveness of parliamentary control over administrative rule-making in various forms, Investigating the factors influencing the rapid growth critically evaluating whether the existing parliamentary control mechanisms are truly effective in ensuring accountability and oversight need to be checked to understand how the delegated legislation works.

RELEVANCE OF STUDY

This study is a significant endeavor to understand the control of Delegated Legislation based on how the legislative keeps check on the power and how it is effective on the legislative functions performed by the administrative authority.

OBJECTIVES

To understand the various forms of parliamentary control over delegated legislation and compare it with that of England and the USA

HYPOTHESIS STATMENT

The effectiveness of parliamentary control mechanisms over delegated legislation is influenced by contextual factors and the diverse legislative landscapes of different countries

RESEARCH QUESTIONS

1. What are the factors responsible for the rapid growth of delegated legislation?

2. Whether parliamentary control over delegated legislation is effective?

FINDINGS

"The act of entrusting another with authority or empowering another to act as an agent or representative" is how Black's Law Dictionary defines "delegation." For instance, Contractual Duties Delegation.

The phrase "Doctrine of Delegation" is further defined by the dictionary as follows: "The Principle limiting Legislature's ability to transfer its legislative power to another Governmental Branch, especially the Executive Branch" (based on the Separation of Powers Concept).

"Legislation that derives from any authority other than the Sovereign Power in a state and that depends on some superior or supreme authority for its continued existence and validity" is the definition of "subordinate legislation."

"This well-established principle is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted," is the definition of the principle of delegated legislation.

Parliamentary Control over Administration: A Comparative Analysis

What parliamentary control over the administration means, is quite different from a strict scrutiny of governmental activities. It comprises of exercising authority rather than power, giving counsel rather than making decisions, giving constructive criticism without hindering actions, maintaining safety instead of initiating activities and being open instead of being close-mouthed.

In a parliamentary democracy, the major role that is played by parliament is to make laws. However, it is also its right and duty as the principal to supervise the way the executive branch, exercising agency on behalf of the principal, performs its tasks assigned to it as its principal. If the legislature of a country choose to devolve part of its legislative power to the executive, it becomes the duty of the legislature to regulate the lawful usage of the given power, its performance, and to prevent its improper, unlawful or improper usage by the administration.

In the United States, one of the important rules which must not be violated is the Non-Delegation doctrine, according to which Congress cannot delegate the legislative power to the President. The U. S. Constitution provides that task to the courts and not Congress, most particularly, the Congress itself has expressed its intent for the courts to so act. Therefore, power delegated to the Minister is beyond the control of Congress with no body or channel, such as the “laying” method or the Congressional Committee to check on the same.

On the other hand, in England, there is substantial Parliament influence over the administrative rules making because of legal notion of Parliamentary Sovereignty. This power is performed under the Statutory Instruments Act of 1946 and checked by the Select Committee on Statutory Instruments. Parliamentary oversight in England is probably best perform when it is most apolitical, when the politics of partisanship does not constrain its operations.

After the publication of Lord Hewart’s critical work titled “The New Despotism,” a massive investigation was carried out which resulted in understanding that delegated legislation is both imperative and inescapable. The situation is that according to the Statutory Instruments Act of 1946 administrative delegation is done subject to the prescribed time frames and it is done by the Parliament. One typical standard provides that delegated legislation may come into force on the date that it is made but also allows either House of Parliament to abrogate it by passing a vote of censure. On the other hand, the growth of the administrative law in the United States was at first stagnated and there was no consideration given to it as an exceptional branch of the law. However, it went through metamorphosis to be acknowledged as the ‘fourth arm’ of the government. The situation regarding the role of administrative law in America intensified in 1933 when a special committee was created to study the role of judiciary in controlling the agencies, and the result of this led to passage of the Administrative Procedure Act in 1946.Based on the comparative analysis of the American and the German models of legislative oversight of administrative rule-making, it can be seen that in the US the focus is made on the different branches’ interrelationships and check and balances while in Germany the emphasis is placed on the organizational structure and functions of the legislative branch together with the principles of the rule of law and separation of powers.

Since the Parliament is the executive's superior, parliamentary oversight of administrative rule-making is implied in India's constitution. Three different kinds of control are used:

• Direct control

The first means of parliamentary control of delegated legislation takes place at the time of passing the enabling act. The above-staged proceedings in Parliament provides rather a broad and direct form of oversight at this stage.In India, for this objective some of the practices adopted involve; debating on delegating bill where the members analyse the significant, range, manner, and kind of delegation and the particular authority to which powers are being delegated. Furthermore, there is Rule 59 of the Procedure and Conduct of Business in Lok Sabha that gives any member the right to ask questions regarding any aspect of legislative delegation and further, if an answer is not satisfactory he or she may demand to have a discussion on the matter.The other methods that are also used are reducing expenditure during the vote on the grants or presenting private member bill with a view to amending the parent act. There are also occasion for debates on delegation during the President’s speech to the joint session of the Parliament.Even though such mechanisms exist then in both India and the U. K., such methods are rarely used mainly because it is not a common practice or practice that has developed from out of conventional norms. However, a list of scholars stress that these methods should be used much more often and should be properly applied to eliminate the abuses of the delegated legislative power in its initial stage.[i]

• Direct special control

As for the ways to retain the legislative supervision, there have been various proposals due to the new demand for the public’s authority over the broadening range of administrative activities. One of these is ‘laying on the table’ which involves transferring of administrative ‘legislation’ made easy due to delegated authority to the legislature for ratification. To have this oversight system operational, rules and regulations are brought to the legislative chamber. A good example of how this approach was applied could be observed in the Reorganization Acts enacted between 1939 and 1969, which granted the President the power to restructure the departments of the executive branch by using the former’s administrative rules. In the United Kingdom the “laying” method is used while the Statutory Instruments Act of 1946 requires all administrative decisions to be laid before Parliament. This type of delegated legislation can normally take effect as soon as it is made but it may be revoked by a resolution of either house.By doing this, the interests of the public have been protected from shenanigans of the executive government and other administrative bodies to exercise administrative discretion in an uncontrolled manner.[ii]

· Laying on a Table

The most common wealth countries’ legislative process contains a step that is called “laying on the table”. This procedure accomplishes two functions: it informs the legislature on the regulations made by the executive arms and presents them a platform to review, analyze or express their concern or opinion on existing or new regulations. The Consequences for the law if the laying provisions are broken: The Consequences for the law if the laying provisions are broken: In India, the consequences that follow violation of the laying restrictions differ depending on whether or not the provisions of the enabling Act are directory ones. In Narendra Kumar v. Union of India the hon’ble Supreme Court has held that Clause 4 of the Non-Ferrous Control Order, 1958 is unconstitutional and, therefore, ultra vires unless it is made under section 3(5) of the Essential Commodities Act, 1955, which gives power to the central government to frame rules for regulating and controlling the supply, distribution, acquisition and consumption of essential commodities with certain. While in Jan Mohammad v. State of Gujarat, the court does deviate from this trend and does accept the firing from the accused’s Jeep. Section 26(5) in the Bombay Agricultural Produce Markets Act, 1939 comprised of a laying provision. However, owing to the World War II emergency, the Provincial legislature was not sitting when the rules that were need to be made under the Act was to be presented. In the second session the rules where established. The lack of the provision in the legislature that stated that the rules would become invalid due to non-laying during the first meeting led the court to conclude that, the regulations were still lawfully. Such rules could not have been formulated by the administrative authority without adhering to the requirement of laying even though the requirement of laying is just directory and not necessary and thus, the mode of rule-making having been broken, such rules would not be acceptable. In an attempt to streamline the delegated legislation in India, the Committee on Subordinate Legislation has the following factors to do the needful recommendations.

Overall, the Committee's functioning is satisfactory, and it has shown to be a rather competent body in thoroughly reviewing and efficiently enhancing India's delegated laws. With perfect timing, Sir Cecil Carr says, "It is a vigorous and independent body. "Consequently, the legislature uses the "laying" mechanism and scrutiny committees to exercise its control over the delegated legislation or rule-making authority. The issue that must be considered, though, is how well these two strategies work to provide oversight and control over delegated legislation.

b. the factors responsible for the rapid growth of delegated legislation are-

Pressure on Parliament: There are more and more state-related activities that call for legislation, and the Parliament cannot possibly dedicate enough time to each one of them. To address this, the Parliament has created policies that give the executive branch the authority to enact appropriate legislation.

Technicality: Members of Parliament are not always qualified to discuss some subjects that call for technicality and necessitate the expertise of professionals in certain sectors. Experts are therefore granted these powers to handle technological issues of gas, atomic energy, pharmaceuticals, etc.

Flexibility: Some provisions must be introduced to an enactment since the Parliament is unable to account for every scenario when adopting legislation. But in addition to being a laborious process, the amending process moves extremely slowly. As a result, the delegated legislation process aids the executive authority in crafting laws that are appropriate for the circumstances. They have a major role in the formation of legislation when it comes to bank rates, policy regulation, etc.

Emergency: The legislative branch is unable to act quickly to address a situation when it arises. The only available remedy in such a situation is delegated legislation. Therefore, the executives have additional authority to handle situations during times of war or other national catastrophes.

Modern management is complicated. There is a need to move toward new reforms and give more authority to various agencies on certain specific and appropriate occasions due to the growing complexity of modern administration and the state's expanded engagement in the economic and social spheres. To ensure that a policy is implemented and that prompt action can be taken, the administration must be given sufficient authority, especially in a nation like Bangladesh where control over private commerce, company, or property may need to be enforced.

In parliamentary systems like India's, the legislature often holds less real power over the executive branch, and its oversight is not as effective as it ideally should be. The inefficiency in parliamentary supervision of delegated legislation in India can be attributed to several factors:

1. Increased Administration Complexity: The scale and complexity of administration have expanded, leaving Parliament with insufficient time and expertise to monitor it effectively.

2. Executive Dominance in Legislation: The executive not only controls the legislative process but is also deeply involved in policy formulation, limiting the legislature's ability to provide oversight.

3. Parliament's Size and Functionality: The sheer size of Parliament makes it difficult to manage and renders it less effective in fulfilling its oversight role.

4. Lack of Constructive Criticism: The executive's majority support in Parliament reduces the likelihood of meaningful scrutiny or criticism.

5. Diminished Legislative Capacity: As delegated legislation has become more prevalent, Parliament's capacity to enact detailed laws has decreased, leading to greater authority for the bureaucracy.

6. Broad and Political Authority: The authority of Parliament is generally loose, broad, and largely political in nature, further weakening its control.

7. Weak Opposition: The absence of a strong and consistent opposition in Parliament further undermines legislative oversight over the administration.

8. Overwhelming Workload: The volume and complexity of work have grown to such an extent that Parliament can no longer rely on routine mechanisms for effective supervision.

The passage states that any administrative action must align with the considerations outlined in the relevant statute and should not be based on unrelated or irrelevant factors. In the case of Ram Manohar Lohia v. Bihar[iii], the petitioner was detained under the Defence of India Rules, 1962, on the grounds that his actions were detrimental to the maintenance of "law and order." However, the rules only permitted detention for the purpose of preventing the disruption of "public order." The court invalidated the detention order, noting that "law and order" is a broader concept than "public order," and the two are not interchangeable.

Srilal Shav v. State of West Bengal-a preventive detention order was issued against a person mainly on the ground that he had stolen railway property. He had documents in his possession to prove his bona fide and to prove that he had purchased the goods in the open market. A criminal case filed against him was dropped and the mentioned preventive detention was passed in its place. The order was held to be bad by the court. This is a typical case in which for no apparent reason a person who could easily be prosecuted under the punitive laws is being preventively detained.[iv]

(iii) The Parliament is simply too big and uncontrollably big to be useful.

(iv) The likelihood of constructive criticism is diminished by the executive's parliamentary majority backing.

(v) As delegated legislation grew, Parliament's ability to enact comprehensive laws decreased and the bureaucracy's authority increased.

(vi) The authority of Parliament is loose, broad, and primarily political.

(vii) Another factor contributing to the inefficiency of legislative oversight over administration in India is the absence of robust and consistent opposition in the Parliament.

(viii) The amount and complexity of the work have become so great that the Parliament as a whole can no longer rely on automatic mechanisms for effective inspection.

CONCLUSION

The comparative analysis of parliamentary control over delegated legislation in India, England, and the USA reveals key differences due to their unique constitutional frameworks. In India, despite various control measures, effective parliamentary oversight is limited by the complexity of governance, lack of expertise, and heavy workload. England offers a more structured and transparent system, aided by the Statutory Instruments Act of 1946 and the Select Committee on Statutory Instruments. The USA, with its separation of powers, relies on judicial review rather than direct parliamentary scrutiny. The study emphasizes the need for continuous evaluation and enhancement of oversight mechanisms to ensure accountability, transparency, and the protection of democratic principles.

BIBLIOGRAPHY

· N.C. Chatterjee, Control over the Legislative Powers of the Administration, 1 J. Indian L. Inst. 1958.

· Prabhu Datta Sharma, Parliamentary Control Over Administration in India, 37 Indian Pol. Sci. Ass’n 1976.

· Pragati Shukla, Parliamentary Control On Administrative Law Making in India, Scribd, https://www.scribd.com (last visited July 25, 2024).

· Rules of Procedure and Conduct of Business in Lok Sabha (15th ed. 2014).

· Statutory Instrument Act, 1946.

· Essential Commodities Act, 1955.

· AIR 430, 1960 SCR (2) 375.

· AIR 385, 1966 SCR (1) 505.

· AIR 393, 1975.

· AIR 181, 1952 SCR 612, AIR 1952 SC 181, 54 Bom. L.R. 525.

· Parliamentary Control Over Administration in India, De Facto IAS, https://www.defactolaw.in (last visited Aug. 6, 2024).

· Prateek Patel, Effectiveness of Control Over Legislative Functions Of Administrative Bodies, Legal Service India, https://www.legalserviceindia.com/legal/article-3424-effectiveness-of-control-over-legislative-functions-of-administrative-bodies.html (last visited Aug. 6, 2024).

REFERENCES

[i]  Parliamentary Control of Administrative Rule Making, Law Teacher, https://www.lawteacher.net (last visited on 24th July ,2024)

[ii] Amit Raj Agrawal, Direct Special Control on Administrative Rulemaking in India: Laying Procedure and Its Types, Scribd, https://www.scribd.com (last visited on 24th July,2024)

[iii] 1966 AIR  740

[iv] 1975 AIR 393