Arushi Anthwal
Maharashtra National Law University, Mumbai
With an expansion in the functions of the modern welfare state the law making power is often delegated to executive organs to meet emergencies, contingencies or to deal with technical subject matter etc. In this view, is the representation of the people compromised by such delegation? To ensure that this question is answered in the negative, the legislature exercises certain control on executive law making which is discussed below:
Control Mechanisms available with the Legislature to control Executive Law-making:
- CONTROL BY MEMORANDUM OF DELEGATION—
In the Indian parliamentary democracy, the executive is as it is implicitly responsible to the legislature therefore the first mechanism is a general control exercised by the legislature by virtue of their power to make the bill that proposes delegated legislation and the consequent discussion on such bill as well as the delegation provision that ensues in the house before such bill is passed. Under the rules of procedure of both Houses of Parliament “A Bill involving proposals for the delegation of legislative power shall further be accompanied by a memorandum explaining such proposals and drawing attention to their scope and stating also whether they are of normal or exceptional character.”[1]
This way the members can effectively discuss the necessity and extent of delegation and raise relevant questions in case of objections.
- CONTROL BY LAYING ON THE TABLE—
As the name suggests the idea is to have the rules or regulations framed by the executive to be first laid before the parliament prior to their effect. This was the legislature is informed what the rules are and also provides an opportunity to question and criticize specifics of these rules. This may be called simple laying. In India the laying procedure is followed as per the directions of the parent act and accordingly there can be other types of laying such as: Laying with immediate effect but subject to annulment (rules are laid in draft and can be annulled by a resolution of a House. The legitimacy of delegated legislation precedes, not follows) & Laying in draft subject to affirmative resolution (The rules come into operation when the houses pass a resolution affirming them.)
- INDIRECT CONTROL THROUGH COMMITTEE ON SUBORDINATE LEGISLATION—
For both houses of the parliament, “There shall be a Committee on Subordinate Legislation to scrutinize and report to the House whether the powers to make regulations, rules, subrules, bye-laws etc., conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation.”[2] The Speaker may also refer to the committee a bill specifying provisions for delegation to the executive so that the same may be examined.[3]
Such a committee scrutinizes to ensure that, the delegated legislation is in accord with the provisions of the Constitution and the parent act, it does not contain matter that will be more properly dealt with by the parent act, whether it imposes any taxation, whether it bars the jurisdiction of the court, no retrospective effect is given to any provision without express power to do so, there is no unjustifiable delay in publication or laying etc.[4]
Adequacy of the Control mechanisms:
In the Indian context it is essential to consider how far these mechanisms would be effective given that the executive already enjoys a majority in the parliament, which may affect the possibility of any extensive critical debate on such rules framed. Moreover, all the above three mechanisms may prove to be ineffective in case of lack of a strong opposition in the parliament. Laying not being mandatory and the parliament sometimes lacking the time and expertise to control the administrative laws may leave scope for enhanced bureaucratic powers fostered by politics.
Thus, it can be said that currently the mechanisms available are not sufficient and as effective as maybe expected in the light of countries like U.K. where there is a dedicated Statutory Instruments Act, 1946 which provides for uniform rules with regard to how statutory instruments are to be laid and published. It also relies extensively on laying procedure. Such uniformity brings about clarity in terms of the procedure to be followed. Thus, such a separate legislation along with an attempt to strengthen the role of scrutinizing committees that can help de-politicize the control process can help improve the legislative control mechanisms in India and make them truly sufficient to deal with delegated legislation.
Speculations of Legislative Assertion:
Parliamentary scrutiny is part of the essence of a democracy that aims to foster and reflect the will of the people. To this extent, the legislative scrutiny of delegated legislation cannot be called an assertion however, in practical terms extensive scrutiny may cause hindrance in the very purposes for which the matter was delegated in the first place and for this purpose, one may resort to the American style of administrative rule making under the provisions of the Administrative procedure Act, 1946 which invites public participation in rule making reflecting the purest form of democracy as well as makes room for subjection to judicial review. Such a practice may help curb any ill-disposed allegations of legislative assertion.
REFERENCES:
[1] Rules of Procedure and Conduct of Business in Lok Sabha , Rule 70; Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), Rule 65.
[2] Rules of Procedure and Conduct of Business in Lok Sabha , Rule 317; Rajya Sabha, Rule 204
[3] Direction by the Speaker of the Lok Sabha, 103A
[4] Rules of Procedure and Conduct of Business in Lok Sabha , Rule 320; Rajya Sabha, Rule 209
