Control of delegated legislation: parliamentary, procedural and judicial

1. Parliamentary control

The rule-making power comes from Parliament, so Parliament has the first responsibility to see it is not misused. In India this is weak in practice but it has two parts.

(a) Direct control at the stage of delegation. When the Bill is debated, members can question whether the delegation is necessary and how wide it is. Bills that delegate power must carry a memorandum explaining the delegation, under the Rules of Procedure of the Lok Sabha.

(b) Laying. Most statutes require rules to be laid before each House. The standard Indian clause requires every rule to be laid before each House for thirty days while it is in session, and provides that if both Houses agree to modify or annul it, it will have effect only in the modified form or be of no effect, without prejudice to anything previously done. Laying takes three forms:

• simple laying: the rules are laid for information, and take effect regardless;
• negative resolution: the rules take effect on laying or on making, but can be annulled or modified by resolution (the usual Indian form);
• affirmative resolution: the rules have no effect, or cease to have effect, unless approved by resolution. Used for important matters such as taxation.

Is laying mandatory? In Atlas Cycle Industries Ltd. v. State of Haryana, 1978 INSC 195, (1979) 2 SCC 196, the Court held that the requirement in section 3(6) of the Essential Commodities Act, 1955 that orders be laid before Parliament was directory, so that failure to lay did not invalidate the order. Whether laying is mandatory depends on the language and object of the provision; where the rule is to have no effect until approved, it is plainly mandatory.

(c) Committees on Subordinate Legislation. The Lok Sabha set up its Committee in 1953 and the Rajya Sabha in 1964. The Committee examines whether rules are within the Act, whether they make unusual or unexpected use of the power, whether they impose a tax, bar the jurisdiction of courts or have retrospective effect not authorised by the Act, whether there has been unjustifiable delay in publication or laying, and whether the drafting is clear. Its reports are recommendations, but Ministries generally act on them. It is the most effective form of parliamentary scrutiny because it works through detail rather than debate.

2. Procedural control

Publication. A law must be published before it can bind. In Harla v. State of Rajasthan, 1951 INSC 42, AIR 1951 SC 467, the Jaipur Opium Act was passed by a council of ministers in 1923 but never published. The Court held that natural justice requires that before a law can become operative it must be promulgated or published, so that people know what it is. A person convicted under it was set free.

Previous publication. Where an Act requires rules to be made “after previous publication”, section 23 of the General Clauses Act, 1897 applies: a draft must be published for the information of persons likely to be affected, with a notice of the date on or after which it will be taken into consideration, and the authority must consider objections and suggestions received before that date. Publication of the final rule in the Official Gazette is then conclusive proof that it has been duly made.

Consultation. Some Acts require consultation with named bodies (for example, a statutory board or the Public Service Commission). Whether failure to consult invalidates the rule depends on whether the requirement is mandatory or directory.

3. Judicial control

Delegated legislation is open to challenge on more grounds than a statute. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, 1984 INSC 231, (1985) 1 SCC 641, Venkataramiah J. said that subordinate legislation may be questioned on any ground on which a statute can be questioned, and in addition on the ground that it does not conform to the statute under which it is made, that it is repugnant to other laws, or that it is manifestly arbitrary, though not on the ground of mere unreasonableness in the sense applied to administrative action. The grounds:

• Ultra vires the Constitution: the parent Act itself is unconstitutional (excessive delegation, lack of competence) or the rule violates a fundamental right.
• Substantive ultra vires the parent Act: the rule goes beyond the power conferred, or conflicts with a provision of the Act.
• Procedural ultra vires: a mandatory procedure (publication, consultation, laying where mandatory) was not followed.
• Manifest arbitrariness or unreasonableness: a rule may be struck down if it is so unreasonable that no reasonable authority could have made it. The Court is slower to apply this to rules made by a representative body.
• Mala fides: rarely established, but a ground.

4. Exclusion of judicial review

Statutes sometimes try to protect rules from challenge. Two common forms:

• “Shall have effect as if enacted in this Act.” In England, Institute of Patent Agents v. Lockwood (House of Lords, 1894) treated such rules as immune, but Minister of Health v. R., ex parte Yaffe (House of Lords, 1931) held that the clause protects only rules that are within the Act. In India, State of U.P. v. Babu Ram Upadhya, 1960 INSC 221, AIR 1961 SC 751, held that rules made under a statute are to be treated as if contained in the Act, but they must still be consistent with it; if they are inconsistent, the Act prevails.
• “Publication in the Gazette shall be conclusive evidence that the rules have been duly made.” This shuts out inquiry into procedure, but not a challenge that the rule is beyond the Act or unconstitutional.

In India no clause can exclude review on constitutional grounds, because judicial review under Articles 32 and 226 is part of the basic structure. The note on Judicial review (Constitutional Law I) covers that.

5. Problem

A statute required the Director of an APMC to pre-publish a draft notification affecting farmers in the Official Gazette and also in a Kannada newspaper. The Director published it only in the Gazette. Is the notification valid? (January 2026)

Issue. Whether the requirement of publication in a Kannada newspaper is mandatory, so that its breach invalidates the notification.

Law. Where a statute prescribes the manner of previous publication, that manner must be followed (section 23 of the General Clauses Act, 1897, and the statute itself). A requirement is mandatory where its object would be defeated by non-compliance. In Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra, 1975 INSC 181, (1975) 2 SCC 482, on almost identical facts under the Gujarat agricultural produce markets law, the Supreme Court held that the requirement to publish the notification in Gujarati in a local newspaper was mandatory: its purpose was to tell the farmers and traders affected, who would not read the Gazette, so that they could object. Publication in the Gazette alone did not satisfy it.

Application. The Kannada newspaper requirement exists to reach the farmers of the area, who are the persons affected and who are given the right to object. The Gazette does not reach them. Non-compliance defeats the very purpose of pre-publication.

Conclusion. The requirement is mandatory and the notification is invalid. The Director must publish the draft afresh in the Kannada newspaper, receive objections and then issue the final notification.

How this is examined

Essays: “Discuss the different forms of legislative control over delegated legislation” (January 2026) and “Explain how Parliament exercises control over delegated legislation” (June 2025). For these, section 1 is the core; add a paragraph on the Committee's terms of reference and end with its weaknesses (lack of time, technical rules, negative laying rarely used). Judicial control and exclusion of review appear as essays or notes. The APMC problem above is set as written; cite Govindlal and Harla.