Procedural control of delegated legislation
Procedural control of delegated legislation
Procedural control in delegated legislation is established because it is not possible for the parliament to exercise effective control over delegated legislation. There are certain safeguards that are necessary to keep a constant watch over the exercise of power by the executive or administrative authorities. Procedural control means the guidelines that are given in the parent act that need to be followed by the authorities while making the rules. These guidelines can be mandatory or directory in nature. In cases where the guidelines provided are mandatory in nature, the rules then become invalid on the ground of noncompliance with the prescribed procedure. If the given guidelines are directory in nature, such rules will not be considered as invalid. The question whether the procedural requirements are mandatory or directory shall be examined by determining the various factors such as the nature of the subject matter to be regulated, the object of the legislation and the provisions placed in the body of the act. In India, the question of control on rule-making power engaged the attention of the Parliament. Under the Rule of Procedure and Conduct of Business of the House of the People provision has been made for a Committee which is called 'Committee on Subordinate Legislation'.
Procedural Control mechanisms in India mainly include: -
1. Prior consultation of interest to be affected by the proposed delegated legislation There is not general procedure that is laid down regarding the prior consultation of interests in India. Words such as “the power to make rules shall be subject to the conditions of previous publication” are inserted in the Parent Act in the situations where the prior consultation is necessary.. A draft is made before the enforcement so that the individuals who would get affected the most by the framed guidelines can express their opinion on the matter From the point of view of the general citizens, this is the most beneficial safeguard against the dangers of misuse of the delegated legislation. The main object of this is to ensure the participation of affected interests to present their own case and to enable the administration to have a first-hand idea of the problems and conditions of the field in which delegated legislation is being contemplated.
2. Prior publicity of the rules and regulations The prior publication of rules and regulations has been adopted in India as a practice wherever it has been deemed necessary. According to Section 23 of General Clauses Act, 1897, the authority shall publish the draft rules for information of affected interests in such manner as it deems sufficient.
3. Publication of the delegated legislation The term publication refers to the act of publishing something and offering the notice to the public for the scrutiny. As per the maxim “ignorantia juris non excusat” which means that the ignorance of law is no excuse, no person can claim the ignorance or an individual no knowing the law as an excuse. This maxim can be only applied when the public is made aware of the existence of such a law and this can be done by the means of publication. The publication of the rules of delegated legislation is considered as mandatory for the same above-mentioned reason . Adequate coverage of delegated laws is important to ensure that the affected parties can determine law with the absolute certainty. Furthermore, the rules and regulations should not come as a surprise and should therefore, not bring with them hardships that would naturally result from such practice. There should be a sort of transparency in the laws that are made and the general citizen should be aware of the laws that are made, so that no offence is committed by the people. The publication in India is done in the official gazette of India so that the people are aware of the same. If there is any specified mode mentioned in the parent act, the same shall be followed thoroughly.
In the case of Union of India v M/s. Ganesh Das Bhojraj , it was said by the court that publication in the Official Gazette is the established practice for bringing a rule or subordinate legislation to the notice of the people.
It is essential to publicize the delegated legislation so that the people are not caught wrong on the foot in the ignorance of the rules applicable to them in the given situation. The system of publication ought to be such that delegated legislation is not only made known to the people, but it is also easy to locate as and when necessary.
- See M.P.Jain, Parliamentry Control of Delegated Legislation in India, 1964 Public Law 33, 152.
- AIR 2000 SC 1102
- Referred from the e-copy of Keli Vakil, Procedural Deviance of Delegated Legislation from Parent Act downloaded from http://ssrn.com/abstract=1877247