Association of Secretaries General of Parliaments
MR. Shumsher K. SHERIFF
Rajya Sabha (Council of States), Parliament of India
“Parliamentary Control over Subordinate Legislation in India”
The Constitution of India came into effect in 1950 and embodies the unity of India which is a land of diversity. There is geographical, linguistic, religious, social and political diversity of a billion strong population that constitutes one sixth of all humanity.
An ancient civilization that now firmly stands as a democracy in the comity of nations since its independence in 1947 from colonial rule, the Republic has reposed faith in the parliamentary system of governance. The Parliament of India is bicameral in nature and is the supreme legislative institution. It consists of the Council of States (Rajya Sabha), the House of the People (Lok Sabha) and the President of the Republic.1
The Constitution provides for separation of powers between the legislature, executive and judiciary. In so far as delegated legislation in the Indian context is concerned this goes by different names like rules, regulations, schemes, bye-laws, orders, circulars, ordinances, statutes and notifications, etc. All these are known as subordinate legislation.2 All subordinate legislation framed under the Act have the same force of law. The powers of statutory bodies are derived, controlled and restricted by the statutes which create them and rules and regulations framed thereunder. The term 'subordinate legislation’ is interchangeable with the term ‘delegated legislation’ and accordingly, the expression ‘subordinate legislation’ is used in this paper.
In the present paper, an attempt has been made to delineate the following aspects of parliamentary control over subordinate legislation in India with particular reference to the Rajya Sabha:
Scope and Growth of Subordinate Legislation;
Mechanism and Efficacy of Parliamentary Control over Subordinate Legislation; and
Challenges and the Way Ahead.
Scope and growth of subordinate legislation
In India, it is a well settled principle that subordinate legislation per se is imperative and pragmatic. However, its scope is limited to the extent of delegation provided in the parent Act. A framework of subordinate legislation recognizes that legislation is the prerogative of the legislature and it cannot abdicate its legislative authority by making excessive delegation of legislative power to the executive. Conversely, the executive is also not entitled to arrogate to itself the powers which are not delegated by the legislature.
The Supreme Court of India, in numerous cases, has observed that unlimited right of delegation is not inherent in the legislative power itself. The Court in one of the cases opined, “Burdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation."3
As can be discerned from the above observations, there is a limitation on delegation of power as the legislature cannot delegate its essential functions. Essential function involves laying down the policy of the law and enacting that policy into binding rule of conduct.4 These functions also include the power to repeal or modify a law, retrospective application of rules, the power to modify the parent statute, power to tax or levy any cess or penalty and where the delegating statute itself is ultra vires of the Constitution of India, the rules made under such statute also become unconstitutional. The delegate on whom the power to make subordinate legislation is conferred cannot further delegate that power.
The legitimacy of delegation entirely depends upon its being used as an ancillary measure which the legislature considers to be necessary for purpose of exercising its legislative powers effectively and completely.5 The subordinate authority must do so within the framework of law which makes the delegation, and such subordinate legislation has to be consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law. The Supreme Court has said that such subordinate legislation has not only to be consistent with the parent Act; it should also be consistent with any other Acts passed by Parliament or state legislatures. The Court in a judgment delivered in 2005 observed, 'We are not oblivious of the fact that framing of rules is not an executive act; there cannot be any doubt whatsoever that such subordinate legislation must be framed strictly in consonance with the legislative intent as reflected in the rule making power.'6
Subordinate legislation has evolved over the years and its most significant developments have taken place after India’s Independence. In the formative years of our Republic, we undertook the task of national reconstruction and produced extensive legislation in keeping with the imperatives of a welfare state. With economic liberalization in the 1990’s, there has been a steady growth of legislation concerning the economic sector. Besides, the reason behind this growth is the rapidly evolving nature and complexity of modern day governance. With the emergence of regulatory regimes and public corporations as powerful arms of Government, the number of regulations further increased as the executive was unable to keep pace with the specialized and highly technical character of their activities. All these, have propelled the growth of subordinate legislation in India. In India, a parent Act may have one or many subordinate legislation. There is no statutory bar in this regard. There are many parent Acts, which require several subordinate legislation. It is, therefore, not surprising that in India as many as 60,000 statutory instruments were made during the last six decades.
Mechanism and efficacy of parliamentary
control over subordinate legislation
The power to enact laws is a primary function of Parliaments across the world. However, Parliaments frequently enact legislations containing provisions which empower the executive government or statutory bodies to make rules and regulations having the effect of law. Though such legislations are made by the executive yet, a system of parliamentary control is available to lend legitimacy to such legislations. In fact, parliamentary control is integral to the very principle of subordinate legislation. Various legislatures have devised their own legislative scrutiny mechanisms. The system of parliamentary scrutiny of delegated legislation which includes varied aspects such as pre-rule making scrutiny, publication of rules, laying before the legislature, committee scrutiny, amendment and modification of rules and procedure for final approval by the legislature, as prevalent in some of the Commonwealth countries such as UK, Canada, Australia and South Africa, is given in Annexure I. The system of subordinate legislation is available in most of the democratic countries with parliamentary system. However, they are grappling with the issue of putting in place an effective system of parliamentary control over subordinate legislation.
Much like other Parliaments, parliamentary control of subordinate legislation in India is well recognised. There is a well-laid out structure and procedure followed in the Indian Parliament about the scrutiny of subordinate legislation. Subordinate legislation must conform exactly to the power delegated by the legislature. Therefore, it is incumbent upon the legislature to ensure that the legislative power so delegated to the executive is exercised in right earnest to administer the statute. As such, legislative supervision and control are inherent in the framework of subordinate legislation so as to hold the executive to account for the abuse and over-reach of its powers. Justice Benjamin Cardozo famously stated that Legislature cannot delegate ‘uncanalized and uncontrolled power’, the power delegated must not be unconfined and vagrant, but must be canalized within banks that keep it from overflowing.7 Delegated legislation, therefore, has the potential to be used in ways which Parliament had not anticipated when it conferred the power through an Act of Parliament.
The overview of the Indian system is mentioned below:
(a) All the Bills introduced in a House are generally referred to the respective Department-related Parliamentary Standing Committee. There are 24 such Committees and every Ministry and Department of the Government is associated with one or the other Committees. Once the Bill has been referred to a Committee, it examines the Bill in its entirety. There is Memorandum of Subordinate Legislation attached to a Bill determining scope of delegation. The Committee discusses and debates the provisions relating to delegation of powers to subordinate authorities. If the Committee feels that there are elements of excessive delegation of powers and the matters delegated so should be clearly and unambiguously delineated in the parent Act, it can recommend accordingly.8
(b) After the report of the Committee is laid on the Table of the House, the Bill is further taken up for consideration and passing by the House. During this second reading also Members can raise the question of scope of delegation.9 This happens in many a Bill.
(c) Mandatory laying of subordinate legislation on the Table of the House is an important element of parliamentary control. All orders framed under an Act are to be laid on the Table so that the House gets an opportunity to see whether the instruments so laid are in order. An important effect of bringing the subordinate legislation before the House is that it gives the Members the right to move a Motion for modification or annulment of the concerned subordinate legislation. This is generally contained in the parent Act itself.
(d) Before 1971, laying of rules, regulations or orders were not mandatory as the concerned Acts did not have any provisions for laying. In 1971, the Committee on Subordinate Legislation (CoSL) of both the Houses felt the need to incorporate a laying formula10 in all the existing Acts to have better parliamentary control over subordinate legislation. The formula stated that all the subordinate legislation framed under the Act will be laid on the Table for 30 sitting days11 during which Members are entitled to move a motion of modification or annulment. The Committee also directed Government to include this provision in all future legislations to bring the subordinate legislation within parliamentary control. Thereafter, the Government passed a Delegated Legislation Provisions (Amendment) Act in 198312 to include this provision in all the existing Acts. Significantly, states in India also followed suit to include this provision in all their Acts by passing Delegated Provisions (Amendment) Bills in their respective state legislatures.
(e) Another important feature has been the laying of notifications in draft stage itself thereby providing an opportunity to the House to state its objections even before these notifications come into effect. This is being followed in some of the enactments where stakeholders’ consultation is mandated.
The Committees on Subordinate Legislation of both the Houses provide the institutional mechanism to deal with subordinate legislation. The CoSL, Rajya Sabha 13 was established in 1964, while in the Lok Sabha, it was set up in 1953. The Committee has the mandate to scrutinizing all subordination legislation and reporting to the House whether the powers to make these rules, regulations, bye-laws, schemes or other statutory instruments conferred by the Constitution or delegated by Parliament have been properly exercised within such conferment or delegation, as the case may be.
The CoSL scrutinizes all the Acts passed in a calendar year to see how many of them have subordinate legislation making provisions. Ordinarily, all subordinate legislation has to be framed as soon as possible but in no case later than six months.14 If the Ministry wants to take more time, it has to request the Chairman of the Committee on Subordinate Legislation for grant of more time.15
In India, subordinate legislation framed in pursuance of an Act or the Constitution of India come into effect after it is published in the Official Gazette. However, another important aspect is to lay the rules, regulations, bye-laws, ordinances, etc. on the Table of the House and thereby giving it wider publicity. Ideally, the subordinate legislation should be brought before the Parliament in the session immediately following its notification. If, however, there is a delay on the part of administrative Ministry, a delay statement16 indicating the reasons for the delay has to be laid before Parliament.
In a recent development the CoSL, Rajya Sabha, keeping in view the inordinate delay in both framing of subordinate legislation contemplated under the parent Act and also in bringing it before Parliament, decided to summon all the Ministries/Departments along with the concerned statutory organizations under them in a phased manner to gain insight into the reasons for such delays and to find solutions if any. This ongoing exercise has proved to be quite effective as it helped expedite the process of framing of stalled subordinate legislation and also helped the Committee understand the problems and difficulties faced by the Ministries.
In matters concerning scrutiny of subordinate legislation the CoSL, Rajya Sabha since its constitution has taken some important initiatives to exercise control over subordinate legislation. The initiatives include:
Publishing all such notifications in the official Gazette;17
Laying of statutory rules and orders in case the state is under President’s Rule;18
Setting time line for framing of subordinate legislation within six months;19
Providing mandatory provisions that in all existing and future legislations, the subordinate legislation are to be laid on the Table of House for thirty sitting days and the right to modification is extended to one additional Session immediately following the Session in which the period of 30 days is completed;20
Setting time line for action to be taken by Ministries on the recommendations of the Committee;21
Seeking permission of the Committee in case of delay in framing or laying of rules;22
Laying of all the orders framed either under Constitution or any statute;23
Posting of subordinate legislation on the websites of Ministries;24
Appending delay statement if framing or laying is delayed;25
Using proper format and precise language while framing rules and regulations;26
Challenges and the way ahead
Most often it is seen that legislative policy in the form of an Act passed by Parliament consists of few sections and pages while subordinate legislation framed therein run into numerous pages. To mention a few examples, the Electricity Act, 2003 has 134 pages while regulations made under this Act run into more than 900 pages and still counting. Similarly, the Environment Protection Act, 1986 has got 26 sections covering a meagre 15 pages while under this legislation, 260 notifications running into more than 1000 pages have been issued and laid on the Table of the House. Likewise, there are several Acts which have been passed in skeletal form while subordinate legislation made thereunder are quite voluminous. This poses a great challenge for effective parliamentary oversight.
Some of the important challenges in the area of scrutiny of sub-ordinate legislation are given below:
Reluctance of the Government to bring the relevant facts before the Committee;
Giving partial or ambiguous information;
Withholding full information on policies and programmes on which proper subordinate legislation needs to be framed;
Difficulties being faced in scrutinizing the subordinate legislation, which are increasingly complex and technical in nature;
Absence of a centralized system to account for subordinate legislation, due to which the Government tend to frame certain rules and regulations in pursuance of Act and do not lay them to avoid scrutiny by Parliament; and
Delay in framing and laying of subordinate legislation.
In addition to all these, international ramifications of subordinate legislation have posed formidable challenges. Rules and regulations have been framed in pursuance of international treaties. There are many international treaties and conventions in the field of trade, finance, environment and human rights which require consequential amendments or stand alone legislations to be made by national Government along with corresponding subordinate legislation, which remain out of purview of scrutiny and control of Parliament. Multinational companies are also occupying considerable space in the field of subordinate legislation concerning areas of banking insurance, petroleum sector, power pharmaceuticals and consumer goods sector impacting day to day lives of common people. Rules and regulations pertaining to their domain areas pose a challenge to parliamentary scrutiny.
In a democracy, Parliament enjoys an overriding responsibility to ensure that the subordinate legislation framed by the executive is consistent with the legislative intent. Effective parliamentary control is the defining feature of a credible system of subordinate legislation. It gives an opportunity both to the legislature and the executive to develop a creative interface in matters of formulation of a policy and its implementation. Given the scheme of parliamentary scrutiny of subordinate legislation in India, it can be said with a measure of certainty that subordinate legislation is integral to the legislature’s role as supreme law making body. The Supreme Court of India has pronounced this in unequivocal terms in a case27, “Legislature cannot efface itself. It cannot delegate the plenary or the essential legislative functions; even if there be delegation, parliamentary control over delegated legislation should be a living continuity as a constitutional necessity”. Further, the Court added: “The legislature is the master of policy and if the delegate is free to switch policy it may be usurpation of legislative power itself”.28
Today, we live in a world that is rapidly changing. With this the content and contour of national legislations are also changing. International obligations are invariably binding the states to comply with international law and commitments made or agreed to by them. As such, issues like global finance, movement of people across national boundaries, terrorism, climate change, sustainable development goals, to name a few have blurred the distinction between ‘national’ and ‘international’. It is against this backdrop, I would like this august body to reflect as to how effective is the system of delegated legislation in individual parliaments in respect of legislations having international ramifications.