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Procedural Control in Delegated Legislation: Administrative Law LLM I Semester

Procedural control in delegated legislation refers to the guidelines that the parent act provides for administrative authorities to follow when making rules. These guidelines can be mandatory or directory. If mandatory, rules made in contravention are invalid; if directory, they remain valid. In India, key procedural controls include: 1) Prior consultation of affected interests on proposed rules. 2) Prior publicity of rules through publication of drafts. 3) Publication of final rules in official gazettes to ensure transparency and prevent ignorance of the law being used as an excuse.

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554 views4 pages

Procedural Control in Delegated Legislation: Administrative Law LLM I Semester

Procedural control in delegated legislation refers to the guidelines that the parent act provides for administrative authorities to follow when making rules. These guidelines can be mandatory or directory. If mandatory, rules made in contravention are invalid; if directory, they remain valid. In India, key procedural controls include: 1) Prior consultation of affected interests on proposed rules. 2) Prior publicity of rules through publication of drafts. 3) Publication of final rules in official gazettes to ensure transparency and prevent ignorance of the law being used as an excuse.

Uploaded by

ShashikantSauravBarnwal
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Administrative Law

LLM I Semester

Procedural control in 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'.
Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
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
Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
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

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]
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.

Shashikant Saurav

Asst. Prof. of Law, IILS

[email protected]

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