ACKNOWLEDGEMENTS

“I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and groups. I would like to express my sincere thanks to
all of them.

On the successful completion of this project, I would like to thank my respected mentor, my
Administrative Law Teachers, Dr. V.K. Pathak and Dr. Chandra Nath Singh who despite
all of his pre-occupations, provided me all the assistance I needed for the accomplishment of
this project and guided me while I tread on the tenebrous boulevard of ignorance. Had it not
been for his support I wouldn’t be able to grasp the cognizance of something as enthralling as
on which helped me to learn and relearn, to explore and re-explore my knowledge of torts.

I would like to convey my gratitude towards my friends and batch mates who have rendered
me their valuable time and without them this project would not have been in present shape and
form.

No work is complete with solo endeavor, neither is mine. I thank each and every non-teaching
staff of this. I thank him profusely for providing me this engrossing topic to work Faculty of
Law, BHU for their unconditional support and infinitum. I would also like to convey my thanks
to the Library Staff of BHU.

Last but not the least; I especially thank my Parents who have given me a chance to study in
this esteemed University, a heaven for overall development.”

PRAJWAL SHUKLA

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 LIST OF CASES

Sr. No. CASE NAME CITATION Page No.

1. Agricultural Market Committee vs. Shalimar (1997) 5 SCC 516 4

Chemical Works

2. Avinder Singh vs. State of Punjab (1979) 1 SCC 137 5, 9

3. Field vs. Clark AIR 1945 PC 48 6
4. King Emperor vs. Benoari Lal Sarma 36 L Ed 294: 143 7
US 649, 692
(1891)

5. A.K. Roy vs. State of Punjab (1986) 4 SCC 326 8

6. State vs. Amir Chand AIR 1953 Punjab I 8

7. ESI vs. T. Abdul Razak (1996) 4 SCC 708 8

8. M. Chandru vs. Chennai Metropolitan (2009) 4 SCC 72 8

Development Authority

9. Narendra Kumar v. Union of India AIR 1960 SC 430 13

10. Jan Mohammad v. State of Gujarat AIR 1966 SC 385 13

11. Hukam chand vs. Union of India (1972) 2 SCC 601 13

12. Atlas Cycle Industries Ltd. vs State of Haryana (1979) 2 SCC 196 13
13. Daiichi Sankyo Co. Ltd. vs. Jayaram Chigurupati (2010) 7 SCC 449 16

14. Hindustan Zinc Ltd. vs. A.P. SEB (1991) 9 SCC 299 18

15. State of Orissa vs. Sridhar Kumar (1985) 3 SCC 697 18

16. Harla vs. State of Rajasthan AIR 1951 SC 467 18

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 TABLE OF CONTENTS

Sr. No. TITLE Page No.

1. INTRODUCTION 4

2. NEED FOR DELEGATED LEGISATION 5

3. CLASSIFICATION OF DELEGATED LEGISLATION 6-9

 Title-Based Classification
 Discretion-Based Classification
 Authority-Based Classification
 Nature-Based Classification

4. CONTROL MECHANISM OVER DELEGATED 9

LEGISLATION

5. PARLIAMENTARY CONTROL 9-15

 Direct General Control
 Direct Special Control
 Indirect Control

6. PROCEDURAL CONTROL 16-18

 Drafting
 Antenatal Publicity
 Consultation with affected persons
 Postnatal Publicity

7. CONCLUSION 19

8. BIBLIOGRAPHY 20

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 INTRODUCTION

With the growth of the administrative process in the 20th century, administrative rule-making
or delegated legislation has assumed tremendous proportions an importance. Today, the bulk
of the law which governs people comes not from the legislature but from the chambers of
administrators. The fact is that the direct legislation of Parliament is not complete, unless it is
read with the help of rules and regulations framed thereunder; otherwise by itself t becomes
misleading.

In the present day context of free market economy, there has been a tremendous growth of
administrative and regulatory forces which has made outsourcing of law-making power to the
administrative authorities a compulsive necessity. Therefore, legislature limits its functions to
merely laying down policies and guidelines of the law, outsourcing all ancillary law-making
power to the administrative authorities to make law relevant to the needs of the people.

The term “delegated legislation” is difficult to define. However, if defined, in a simple way,
delegated legislation refers to all law-making which takes place outside the legislature and is
generally expressed as rules, regulations, bye-laws, orders, schemes, directions or notifications,
etc. Salmond defines delegated legislation as “that which proceeds from any authority other
than the sovereign power and is, therefore, dependent for its continued existence and validity
on some superior or supreme authority”1. The term delegated legislation may be used in two
senses, firstly, as the exercise of law-making power by the administrative authority delegated
to it by the legislature; or secondly, the actual exercise of law-making power itself in the forms
of rules and regulations, etc.2

Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by
Parliament, delegated legislation also came to be made by Parliament. Going back into Henry
VIII was given extensive powers to legislate by proclamations. This proves the fact that there
was and will always be the need for delegated legislation. The exigencies of the modern state,
especially social and economic reforms, have given rise to delegated legislation on a large
scale, so much so that a reasonable fear arises among the people that they are being ruled by
bureaucracy.3

1
Salmond, Jurisprudence (12th Edn.) 116.
2
Jain and Jain, Principles of Administrative Law (1986) 26.
3
Agricultural Market Committee vs. Shalimar Chemical Works, (1997) 5 SCC 516.

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NEED FOR ADMINISTRATIVE RULE-MAKING OR DELEGATED LEGISLATION

The Indian Parliament enacted from period 1973 to 1977 a total of 302 laws; as against this the
total number of statutory orders and rules passed in the same period was approximately 25,4144.
The modern trend is that Parliament passes only a skeletal legislation. A classic example may
be the Imports and Exports (Control) Act, 1947 which contains only eight sections to provide
through the rule-making power delegated to it under legislation and delegates the whole power
to the administrative agencies to regulate the whole complex mechanism of imports and
exports. The examples may be multiplied. This trend brings us to the need of the phenomenon
of delegated legislation.

The factors leading to the growth of administrative rule-making may be particularized as

follows:

 Legislation on ever-widening fronts of a modern welfare and service state is not

possible without the technique of delegation. It is trite but correct to say that even if
today Parliament sits all the 365 days in a year and all the 24 hours, it may not give
that quantity and quality of law which is required for proper functioning of a modern
government.
 Today, legislation has become highly technical because of the complexities of a
modern government. Therefore, it is convenient for the legislature to confine itself to
policy statements only and leave the law-making sequence to the administrative
agencies.
 In situations where crisis legislation is needed to meet emergent situations,
administrative rule-making is a necessity because the ordinary law-making process is
overburdened with constitutional and administrative technicalities and involves delay.
 In some situation it is not necessary that the law must not be known to anybody till it
comes into operation. For example, in case of importance of restrictions on private
ownership, it is necessary that the law must be kept secret till it comes into immediate
operation, otherwise people could arrange their property rights in such a manner as to
defeat the purpose of the law.
 Where government action involves discretion, i.e. expansion of public utility services,
administrative rule-making is the only valid proposition.

4
Working paper presented by Professor Upendra Baxi, quoted in Avinder Singh vs. State of Punjab, (1979) 1
SCC 137.

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 CLASSIFICATION OF DELEGATED LEGISLATION

Administrative rule-making in India is commonly expressed by the term “statutory rules and
orders”. However, this classification is not exhaustive as it appears in other forms also, i.e.
regulation, notification, bye-law, scheme and direction. The classification of administrative
rule-making can be done under various heads:

 Title-based classification
 Discretion-based classification i.e. Conditional Legislation
 Authority-based classification i.e. Sub-delegation Legislation
 Nature-based classification i.e. Exceptional Delegation Legislation

TITLE-BASED CLASSIFICATION

The title-based classification appears in the form of Rules, Regulations, Orders, Bye-laws,
Directions, Schemes, etc.

DISCRETION-BASED CLASSIFICATION

Another classification of delegated legislation may be based on discretion vested in rule-

making authority. On the basis of “discretion”, administrative rule-making may be classified
into subordinate and contingent or conditional legislation. This classification is linked with the
leading case of Field vs. Clark5, where the impugned Act authorized the President by
proclamation to suspend the operation of an Act, permitting free introduction into the US of
certain products, upon his finding that the duties imposed upon the products of the US were
reciprocally unequal and unreasonable. The US SC upheld the validity of the Act on the ground
that the President is a mere agent of the Congress to ascertain and declare the contingency upon
which the will of the Congress will prevail. The court further held that the Congress cannot
delegate its power to make a law, but it can make a law to delegate the power to determine
some factors or state of things upon which law intends to make its own action depend.

Therefore, contingent or conditional legislation may be defined as a statute that provides

control but specifies that they are to go into effect only when a given administrative authority
finds the existence of conditions defined in the statute itself. In subordinate legislation, the
process consists of the discretionary elaboration of rules and regulations. The distinction
between the two is of “discretion”. Contingent or conditional legislation is fact-finding and

5
36 L Ed 294: 143 US 649, 692 (1891).

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subordinate legislation is discretionary. In conditional legislation, the gun and the gunpowder
is provided by the legislature and the administrative authority is only required to pull the
trigger, but in subordinate legislation the administrative authority is to manufacture gunpowder
also.

In King Emperor vs. Benoari Lal Sarma6, the Privy Council for the first time upheld the validity
of the Governor General’s Ordinance of special courts, which had delegated the power to
extend the duration of the ordinance on provincial governments in case of an emergency, on
the ground of conditional legislation. The PC observed that it was a piece of conditional
legislation as the legislation was complete and what had been delegated was the power to apply
the Act on the fulfilment of certain conditions.

Conditional Legislation is classified into three categories:

 Statute enacted by legislature, future applicability to a given area left to the subjective
satisfaction of the delegate as to the conditions indicating the proper time for that
purpose;
 Act enforced, but power to withdraw the same from operation in a given area or in given
case delegated to be exercised on subjective satisfaction or objective satisfaction of the
delegate as to the existence of requisite condition precedent; and
 Power exercisable upon the delegate’s satisfaction on objective facts by a class of
persons seeking benefit of the exercise of such power to deprive the rival class of
persons of statutory benefits.

AUTHORITY-BASED CLASSIFICATION

Another classification is based on the position of the authority making rules. Sometimes the
rule-making authority delegates to itself, or to some other subordinate authority, a further
power to issue rules; such exercise of rule-making power is known as sub-delegated legislation.
Rule-making authority cannot delegate its power unless the power of delegation is contained
in the enabling Act. The maxim “delegatus non potest delegare” indicates that sub-delegation
of power is normally not allowable though the legislature can always provide for it. Courts
have always taken the position that sub-delegation is invalid unless authorized by the parent
Act.

6
AIR 1945 PC 48.

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A classic illustration is A.K. Roy vs. State of Punjab7. In this case, the power to initiate
prosecution for offences under section 20(i) of the Prevention of Food Adulteration Act, 1954
had been given to the State Governments. The Act had not authorized sub-delegation of power.
Nevertheless, under Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958, the
power of prosecution was delegated to Food Inspector. The court held sub-delegation as ultra
vires the parent Act. In State vs. Amir Chand8, the court further held that authorization of sub-
delegation must be express, it cannot be inferred.

In the case of ESI vs. T. Abdul Razak9, under the Employees’ State Insurance (Central) Rules,
1950, Rule 16(2) had provided for two types of sub-delegations: (I) Director General was
empowered to delegate the powers conferred on him by the said rules; (2) Director General
was further empowered to delegate his powers and duties under any resolution of the
corporation or the standing committee. The court held the sub-delegation in the second case as
invalid on the ground that conferment of powers and duties under a resolution of the
corporation could be by way of delegation to the corporation, and empowering the Director
General to further delegate such powers is impermissible. Thus, if power to delegate rule-
making power is obtained by the authority by its own rule-making, it will not be valid if not
authorized by the parent Act.10

NATURE-BASED CLASSIFICATION

Classification of administrative rule-making may also be based on the nature and extent of
delegation. The Committee on Ministers’ Powers distinguished two types of parliamentary
delegation:

(I) Normal Delegation

(a) Positive- Where the limits of delegation are clearly defined in the enabling
Act.
(b) Negative- Where power delegated does not include power to do certain things,
i.e. legislate on matters of policy.
(II) Exceptional Delegation- Instances of exceptional Delegation may be:
(a) Power to legislate on matters of principal policy.
(b) Power to amend Acts of Parliament of existing law.

7
(1986) 4 SCC 326.
8
AIR 1953 Punjab I.
9
(1996) 4 SCC 708.
10
M. Chandru vs. Chennai Metropolitan Development Authority, (2009) 4 SCC 72.

8|Page
 (c) Power conferring such a wide discretion that it is almost impossible to know
the limits.
(d) Power to make rules without being challenged in a court of law.

CONTROL MECHANISM OVER DELEGATED LEGISLATION:

PARLIAMENTARY AND PROCEDURAL CONTROL

The control mechanism of administrative rule-making comprises three components, namely,

parliamentary control, procedural control, and judicial control. This project work deeply
analysis the first two controlling measures of administrative rule-making.

 PARLIAMEMTARY CONTROL

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
necessity.11 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.

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 generalized
standard of control also being broad, judicial control has shrunk, raising the desirability and
the necessity of parliamentary control.

With regard to the control of the legislature over delegated legislation, M.P. Jain states12:
“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

11
Avinder Singh vs. State of Punjab (1979) 1 SCC 137.
12
M.P. JAIN’s Principle of Administrative Law.

9|Page
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 scrutinize 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.

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-making is implicit as a normal

constitutional function because the executive is responsible to the Parliament. There are three
types of control exercised:

(1) Direct General Control

Direct but general control over delegated legislation is exercised:

(a) through the 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 can 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 Conduct of Business in Lok Sabha;

(c) through moving resolutions and notices in the House;

(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;

10 | P a g e
(e) through private Member’s Bill seeking modifications in the parent Act, or through a debate
at a time of discussion on the address by the President to the joint session of Parliament,
Members may discuss delegation.

(2) Direct special control

This control mechanism is exercised through the technique of “laying” on the table of the
House rules and regulations framed by the administrative authority. The notable use of this
technique was made in the Reorganization Acts of 1939 to 1969, which authorised the US
President to reorganise the executive government by administrative rule-making. In England
the technique of laying is very extensively used because all the administrative rule-making is
subject to the supervision of Parliament under the Statutory Instruments Act, 1946 which
prescribes 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.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required
to be laid before Parliament after being made, a copy shall be laid before each House before
the legislation comes into operation . However, if it is essential that it should come into
operation before the copies are laid, it may so operate but notification shall be sent to the Lord
Chancellor and the Speaker of the House of Commons explaining why the copies were not laid
beforehand. Under Section 6 of the Statutory Instruments Act, 1946, the draft of any statutory
instrument should be laid before the parliament.

Laying on Table

In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the
Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as
to what all rules have been made by the executive authorities in exercise of delegated
legislation, secondly, it provides a forum to the legislators to question or challenge the rules
made or proposed to be made.

Types of ‘Laying’

The Select Committee on delegated Legislation summarised the laying procedure under
following heads: -

11 | P a g e
  Laying with no further direction: - In this type of laying the rules and regulations come
into effect as soon as they are laid. It is simply to inform the House about the rules and
regulations.
 Laying with immediate effect but subject to annulment: - Here the rules and regulations
come into operation as soon as they are laid before the Parliament. However, they cease
to operate when disapproved by the Parliament.
 Laying subject to negative resolution: - In this process the rules come into effect as
soon as they are laid before the Parliament, but shall cease to have effect if annulled by
a resolution of the House.
 Laying subject to affirmative resolution: - This technique takes two forms: firstly, that
the rules shall have no effect or force unless approved by a resolution of each House of
Parliament, secondly, that the rules shall cease to have effect unless approved by an
affirmative resolution.
 Laying in draft subject to negative resolution: - Such a provision provides that when
any Act contains provision for this type of laying the draft rules shall be placed on the
table of the House and shall come into force after forty days from the date of laying
unless disapproved before that period.
 Laying in draft subject to affirmative resolution: - In this type of laying the instruments
or draft rules shall have no effect unless approved by the House.

In India, there is no statutory provision requiring ‘laying of’ of all delegated legislation. 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.13

13
C.K. THAKKER, Administrative Law (Eastern Book Company 1992) 152.

12 | P a g e
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 India14, 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 Gujarat15, 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 remained
valid because the legislature did not provide that the non-laying at its first session would make
the rules invalid.

This decision may not be considered as a deviation from the Narendra Kumar rule because of
the very special circumstances attending the case. This becomes clear from the decision of the
Supreme Court in Hukam chand vs. Union of India16. In this case, Section 40 of the Displaced
Persons (Compensation) Act, 1954 empowered the Central Government to make rules and
required them to be placed before Parliament subject to a negative resolution. The government
added an Explanation to Rule 49 and gave it retrospective operation under which non-urban
land could be allotted to displaced persons. The SC held that out of the three recognized types
of laying, it comes in the second category which is a mandatory provision of the law. Therefore,
the rules were struck down as ultra vires the powers of the administrative agency.

In Atlas Cycle Industries Ltd. vs State of Haryana17, the Supreme Court, however, held the
impugned provision of law which provided that every order by the Central Government or its
officer or authority “shall be laid before both Houses of Parliament as soon as may be after it

14
AIR 1960 SC 430.
15
IR 1966 SC 385.
16
(1972) 2 SCC 601.
17
(1979) 2 SCC 196.

13 | P a g e
is made” as merely directory and did not make “laying” a condition precedent to the making of
the order. According to the court, the word “shall” in Section 3(6) of the Essential Commodities
Act, 1955 is not conclusive and decisive of the matter, and the court is to determine the “true
intention” of the legislature. Section 3(6) provides for simple laying in which Parliament has
no power either to approve or disapprove the order. Therefore, simple laying is merely directory
and non-laying would not make the order void. 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.

(3) Indirect control

Indirect control is exercised by Parliament through its Committees. With a view to strengthen
Parliamentary control over delegated legislation, Scrutiny Committees were established. In UK
and India, there are Standing Committees of Parliament to scrutinise delegated legislation. In
the USA, on the other hand, there is no equivalent to such committees, the responsibility being
diffused. The responsibility is shared but a host of committees – standing committees in each
House of Congress, committees on government operation in each house, and some other joint
bodies like the committee on atomic energy. In England, the Select Committee on Statutory
Instruments was established by the House of Commons in 1944. In 1950, the Law Minister
made a suggestion for the establishment of a Committee of the House on the pattern of the
Select Committee on Statutory Instruments, 1944, to examine delegated legislation and bring
to the notice of the House whether administrative rule-making has exceeded the intention of
the Parliament or has departed from it or has affected any fundamental principle.

Such a committee known as the Committee on Subordinate Legislation of Lok Sabha was
appointed on December 1, 1953 . The main functions of the Committee are to examine: (i)
whether the rules are in accordance with the general object of the Act, (ii) whether the rules
contain any matter which could more properly be dealt with in the Act, (iii) whether it is
retrospective, (iv) whether it directly or indirectly bars the jurisdiction of the court, and
questions alike. The Committee has between 1953 and 1961, scrutinized about 5300 orders and
rules has submitted 19 reports. There is also a similar Committee of the Rajya Sabha which
was constituted in 1964. It discharges functions similar to the Lok Sabha Committee.

14 | P a g e
Recommendations by the committee on subordinate delegation

The Committee on Subordinate Legislation has made the following recommendation in order
to streamline the process of delegated legislation in India.

(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.

15 | P a g e
  PROCEDURAL CONTROL

Parliamentary control over administrative rule-making is admittedly weak because legislators

are sometimes innocent of legal skills. A constant search, therefore, is on for an alternative
mechanism which, besides providing effective vigil over administrative rule-making, can
guarantee effective people participation for better social communication, acceptance and
effectively of the rules.

Procedural control mechanism has the potential to meet the abovenoted requirements for
allowing specific audit of rules by those for whose consumption they are made. Procedural
control mechanism operates in following components:

 Drafting.
 Antenatal publicity.
 Consultation with affected persons.
 Post-natal publicity.

Drafting

The drafting of delegated legislation by an expert draftsman who is, at the same time, in a
position to advise whether the proposed rules and regulation are intra-vires is obviously a
valuable safeguard. The Committee on Sub-ordinate Legislation in India rightly recommended
that the language of rules should be simple and clear and not ambiguous. In Daiichi Sankyo
Co. Ltd. vs. Jayaram Chigurupati18, the apex court emphasised that “Object and Reason
Clause” must be introduced in delegated legislation, as it would help in proper interpretation
of administrative rule-making.

Antenatal Publicity

Sometimes the Enabling or Parent Act provides for the publication of the proposed delegated
legislation. It is called antecedent publicity or prior or previous publicity. Whether
such publication is necessary or not depends on the Enabling or Patent Act. The purpose of th
eAnte-natal publication is to give the general public an opportunity to raise their objections,
make their representation and to give their suggestion so that it can be incorporated, before the
delegated legislation attains its final form.

18
(2010) 7 SCC 449.

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In India there is no separate law governing the procedure of administrative rule-making, and
the parent Act may or may not provide for procedural requirement. However, in some cases
the parent Acts have provided for antenatal publicity. Section 15 of the Central Tea Board Act,
1949, Section 30(3) of the Chartered Accountants Act, 1949 and Section 43 of the Co-operative
Societies Act, 1912 may be cited as examples where it was provided that the rules must first
be published in draft form to give an opportunity to the people to have their say in the rule-
making.

Antenatal publicity required by the enabling Act attracts the application of Section 23 of the
General Clauses Act, 1897 which requires:

 that the rules be published in draft form in the Gazette;

 that objections and suggestions be invited by a specific date mentioned therein;
 that those objections and suggestions are considered by the rule making authority.

In US, Section 4 of the Federal Administrative Procedure Act, 1946 provides for the publication
of proposed rules in the Federal Register. The agency concerned must then afford an
opportunity to the interested persons to participate in the administrative rule-making through
submission of written data, views or arguments, with or without opportunity of being heard
orally.

In Britain, unlike in the US, the emphasis is on informal procedural requirements. The original
rules of antenatal publicity and prior consultation laid down in Rules Publication Act, 1893
have been repealed by the Statutory Instruments Act, 1946 which now provides for the
publication of rules. In England, the law contains no general requirement for antecedent
publicity or any right to hearing. However, in individual cases, Parliament may provide for
antenatal publicity and prior consultation; for example, The Factories Act, 1961.

Consultation with Affected Persons

In India there is no general law which provides for prior consultation with affected persons
before rules and regulations are framed by administrative authorities. Therefore, the provision
of prior consultation is sometimes provided in the enabling Act itself. Section 16(5) of the
Electricity (Supply) Act, 1948 makes provision for consultation with the State Electricity
Consultative Council before raising tariffs. The Supreme Court in Hindustan Zinc Ltd. vs. A.P.

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SEB19, held that failure to consult does not render the exercise of power invalid because
consultation with the council has not been made mandatory.

Postnatal Publicity

Post-natal publicity may be taken to mean publication of the subordinate or delegated

legislation after being fully framed, but before being put into operation. A
fundamental principle of law is that ignorance of law is no excuse. But this principle can be
applied only when the laws are accessible to the public. The post-natal publication is necessary
to enable the public to have access to the laws.

In India, there is no general law prescribing the mode of publication of rules; therefore, the
practice of publication differs from statute to statute. In some case the statute lays down that
the rules must be published in the Official Gazette, but in other cases the administrative
authority is left free to choose its own mode of publication.

If a statutory provision requires publication of any notice for the benefit of those who are likely
to be affected thereby but the language of notice is not prescribed, it is reasonable to expect
that the language of the notice would be the local language and the mode of publication will be
a local newspaper. Therefore, the Supreme Court in State of Orissa vs. Sridhar Kumar20,
quashed the publication which had been made in a local newspaper but not in the local
language.

The Supreme Court in Harla vs. State of Rajasthan21, has held that a law cannot be enforced
unless published. In this case Jaipur Opium Act, 1923 was enacted which was never published
in any form. One Harla was prosecuted for the contravention of this law because he was in
possession of opium in more quantity than prescribed. The court held that rules of natural
justice demand that the laws be published before they are enforced.

In England, Section 3 of the Statutory Instruments Act, 1946 provides that the rules shall not
come into force unless published.

19
(1991) 9 SCC 299.
20
(1985) 3 SCC 697.
21
AIR 1951 SC 467.

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 CONCLUSION

On a concluding note I can say that the delegated legislation is important in the wake of the
rise in the number of legislations and technicalities involved. But at the same time with the rise
in delegated legislation, the need to control it also arises because with the increase in the
delegation of power also increases the chance of the abuse of power. The judicial control apart
from the legislative and procedural control is the way how the delegation of power can be
controlled. Thus, the delegated legislation can be questioned on the grounds of substantive ultra
vires and on the ground of the constitutionality of the parent act and the delegated legislation.
The latter can also be challenged on the ground of its being unreasonable and arbitrary.

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 BIBLIOGRAPHY

BOOKS REFERRED-

 Massey I.P., Administrative Law, (7th Edn. 2008).

 Takwani C.K. (2007) Lectures on Administrative Law, Eastern Book Company,
Lucknow.
 Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, 6th Edn., Vol II,
Wadhwa Nagpur.

WEBLINKS-

https://blog.ipleaders.in/analysis-concept-delegated-legislation/

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2758065

http://www.legalservicesindia.com/article/2421/Delegated-Legislation-Development-and-
Parliamentary-Control.html

https://indiankanoon.org/search/?formInput=delegated+legislation

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