Author: Aman Sen, KIIT Law School, KIIT DU

“….even if there be delegation, parliamentary control over delegated legislation should be a living continuity as a constitutional necessity.”

In this fast-moving world, there’s no denying that giving administrative authorities the power to make rules, what we call delegated legislation, has become a bit of a necessity. It’s a way for them to handle all the tricky, day-to-day stuff that lawmakers might not have the time or expertise to sort out. But then again, doesn’t this give the executive branch too much power? Some might just say it’s common sense, Parliament can’t keep up with how quickly everything’s changing. Yet others argue that it puts too much power in the hands of the executive, sidestepping the role of the legislature.

When Parliament hands over its law-making powers, it still tries to keep a watchful eye on how they’re used. This is called parliamentary control. They check up on it through all sorts of ways – procedural and substantive reviews, legislative scrutiny, and even judicial oversight. Parliament does this to make sure those who are supposed to just apply the law don’t end up making it in ways they shouldn’t.

Justice P.B. Mukherjee once said something interesting. He observed that delegated legislation may act as a shield for administrators and a convenient excuse for legislators to avoid detailed lawmaking. So, is it really a problem or not? Well, yes and no. It depends on how closely Parliament keeps an eye on things. And Parliament has to do this because if they don’t, who will?

This article takes a closer look at how Parliament actually keeps tabs on all this delegated law-making. 

Keywords: delegated legislation, parliamentary control, executive power, legislative oversight, democratic accountability

In the ever-busy world, the load of governance is becoming heavier every day, and the legislature just can’t keep up with every little thing. So, it’s hard to hand off some of those law-making tasks to the executive. This idea, this passing along of power, is what we call delegated legislation. Some might say it’s the magic bullet; others might see it as a slippery slope.

In plain terms, delegated legislation means letting someone below the legislature make rules. Parliament puts out the big ideas, the skeleton, if you like, and lets the executive add the meat to the bones. But then again, if you think about it, isn’t that just the legislature doing its job in a different way? Or is it the legislature stepping back from its duty altogether?

Here’s the thing- by giving these powers away, Parliament has to be very careful, like a parent letting go of a bicycle but still holding the seat, just in case. There’s always the worry that the executive might ride off in the wrong direction, ignoring Parliament’s intent. So, Parliament has to keep watch. It has to make sure the executive’s new rules stay inside the lines Parliament drew.

In practice, the courts have spoken up about this a lot. Take the Supreme Court’s view in Lohia Machines Ltd. v. Union of India,  it said Parliament has the job of making sure rule-making authorities don’t go overboard. In that same breath, it called parliamentary control a “legislative veto”, allowing Parliament to hold the rule-making accountable and criticize any overreach or abuse of delegated power. So, Parliament can slam the brakes if the executive starts to wander.

But wait, didn’t Justice KrishnaIyer also say in  Avinder Singh v. State of Punjab, that oversight should be a never-ending job? He did. He also said that, in real life, this control is more of a theory than a practice. So maybe Parliament’s oversight is a great idea, but it doesn’t always work the way it should. Or does it? Maybe it’s somewhere in between - working sometimes, failing sometimes, but always a part of how laws get made.

That’s how delegated legislation keeps the wheels of Indian governance turning, sometimes smooth, sometimes bumpy, but always moving forward, even when the ride is a little rough.

In India, it’s the legislature that grants the executive the power to make rules, and it’s meant to watch how that power is used. Or at least, that’s the idea. Sometimes the legislature might not watch as closely as it should, and sometimes it steps in firmly. Ultimately, the responsibility to ensure those delegated powers are used properly always rests with the legislature, even if it sometimes seems like they’re too busy to check every single thing.

A. MEMORANDUM ON DELEGATION

When it comes to keeping an eye on delegated legislation, the very first checkpoint is when the delegation itself is put forward. Now, you'd think it’s just a simple proposal, but actually, there’s a strict rule, according to parliamentary rules Any bill that wants to delegate law-making powers has to come with a memorandum. This isn’t just a casual note, it has to explain what exactly is being delegated, how far those powers reach, and whether this kind of delegation is something rare or just a normal part of how things work. Surprisingly, or maybe not, the Lok Sabha Committee on Subordinate Legislation also insists this memorandum isn’t optional; it should be mandatory.

You might expect this memorandum to be dry, but actually, it’s quite detailed - it tells you what parts of the law these delegated rules will touch, who exactly gets these powers, and how they’re supposed to use them. You’d imagine that such a document would make MPs feel confident about what they’re approving. Yet, sometimes, despite all this, questions and doubts linger.

The Speaker can also send the bill off to the Committee on Subordinate Legislation for a closer look when things appear to be complicated. This committee doesn’t just skim through; it digs deep into what’s being delegated, making sure no stone is left unturned. One might say this extra step is just bureaucracy slowing things down, but then again, without it, the powers might run wild.

So, by insisting on this kind of detailed explanation and adding layers of oversight, Parliament tries to keep delegated powers on a tight leash. They want to be sure those powers don’t go beyond what was originally intended, all while making sure there’s enough scrutiny to keep things transparent. Or maybe it’s just a way to make everyone feel they’re in control, even when some decisions slip through the cracks.

B. LAYING PROCEDURE

Once the rules are crafted, the next important step in the legislative chain is what we call the “laying procedure.” The Supreme Court, in the case of Atlas Cycle Industries Ltd. v. State of Haryana, pointed out that there are three distinct ways this laying can happen, each reflecting a different level of control that the Legislature wants to hold. What are these? Well, they’re basically:

1. Laying without further procedures.

2. Laying subject to affirmative resolution.

3. Laying subject to negative resolution.

To make sure the Legislature keeps a close eye on delegated legislation, so it doesn’t run wild, the rules usually have to be “laid before” the Legislature. That’s the big check on giving too much power away. And these variations in the laying procedure look like this:

1. First, the simplest way is to just show the Legislature the rules after they’re made, no questions asked. This is just to keep everyone in the loop, making sure the lawmakers know what the executive branch is up to when it creates these detailed rules under various laws. It’s like a heads-up, nothing more.

2. Second, sometimes the rules need the explicit “approval” from both Houses before they can take effect, this is called laying with an affirmative resolution. For instance, take Article 352 of the Constitution, a national emergency declaration must be shown to both Houses of Parliament, and it automatically ends in a month unless both Houses say “yes, keep it going.” Likewise, under Article 356, when the Central Government steps in to run a State, that proclamation has to be laid before Parliament and will lapse after two months unless Parliament gives its consent. But here’s the twist, sometimes the law says the rules have to be laid down before they come into force, and they only become law once Parliament agrees. This draft-stage laying with affirmative resolution isn’t common in India, though. It really depends on what the parent law says. Some laws, like the Salaries and Allowances of Ministers Act, 1952, or the Essential Services Maintenance Act, 1968, do use it. And the Rajya Sabha’s Committee on Subordinate Legislation thinks this affirmative approach would actually make Parliament’s supervision stronger and more meaningful.

3. Thirdly, there’s the “laying with negative resolution” method. Here, the rules come into effect immediately, but they still have to be laid before Parliament after the fact. If Parliament doesn’t like them, it can annul or change the rules. And as soon as Parliament does that, the annulment or change kicks in right away, the rules either get scrapped or altered on the spot. This is the more usual method in central laws nowadays, with a pretty standard approach to how it’s done. Now, although this process is often treated as more of a guideline (directory) than a strict rule (mandatory), legal scholar Pearce argues otherwise. He says Parliament’s review is so crucial to lawmaking that the laying procedure shouldn’t be just a box-ticking exercise; it ought to be a must-do, a firm step, not something to be skipped or brushed aside.

C. LAYING PROCEDURE AND ITS NON-EXEMPTION FROM JUDICIAL REVIEW

Though laying the rules before Parliament is a procedural step, it does not grant these delegated laws any kind of automatic protection from judicial scrutiny. To say that simply putting the regulations on the table means they are valid is misleading, because if they go beyond what the law allows, courts can still step in and say, “Nope, this is not okay.”

The judiciary has the authority to look closely at delegated legislation and check whether it respects the limits set by the original law that gave power to make those rules. It’s been clearly established in many court cases that just because a notification must be laid before Parliament, the courts are not barred from reviewing it. Indeed, the Supreme Court has repeatedly pointed out that the requirement to lay regulations before the Legislature does not magically turn these regulations into statutory laws or give them extra protection.

Therefore, if the rules step outside the bounds set by the statute or ignore the required procedures, the courts can and will, disregard them if they are challenged. 

D.PARLIAMENTARY COMMITTEES

Parliamentary control is further exercised through two committees on subordinate legislation, one in each House. The Lok Sabha Committee on Subordinate Legislation, which started working back in 1953, is a bit older than the Rajya Sabha’s committee that began in 1964. This formation made it easier to keep an eye on rules made by the government. These committees automatically look into the rules that come up before Parliament when they’re officially presented. They’re supposed to see if the rules are made in the right way, if they’re sticking to the purpose for which Parliament gave them the power. Or maybe, they’re just meant to make sure nothing is done in a way Parliament didn’t allow. But at the same time, you might say they’re not just watchdogs, they’re also guides, showing how delegated power should be handled. Yet, some might argue that’s overstating their role.

These committees look at a bunch of points:

• Whether the order laid down before the House is in accordance with the general object of the Constitution or the Act in the wake of which it is made;

• Whether the matter contained in it should have rather been dealt with in an Act of Parliament;

• Whether it contains an imposition of tax;

• Whether it bars jurisdiction of the Courts, directly or indirectly;

• Whether it involves expenditure from the Consolidated Fund of India or the public revenues;

• Whether it has made some strange or unforeseen use of the power conferred by the Constitution or the Act pursuant to which it is made;

• Whether its laying before the Parliament or publication was unjustifiably delayed;Whether it gives retrospective effect to any of the provisions with regard to which the Constitution or the Parent Act does not empower it; and

• Whether its form or structures requires further detailing for some apparent reason.

E. CONSULTATION OF INTERESTS

In today’s world, “Consultation of Interests” is a fresh, democratic idea in how governments control rules made by others. You see, when rules are made that affect everyday people, it’s only fair they get a chance to speak up. This back-and-forth creates a more human touch, which brings in people’s opinions so rules aren’t just cold and distant.

Now, in some ways, this seems like a perfect way to keep rule-makers honest. But wait, it’s not always so simple. Sometimes the law says people have to be consulted. Other times, it says they don’t. Strange, isn’t it? Actually, not so strange when you think about how complicated governments can be.

Look at the Aruna Roy v. Union of IndiaHere the court said, unless the law says so, there’s no need to ask what people think. Yet, in the Rajnarain’s case, the court said, if the law says to let people object, then it must be done. It’s a dance between fairness and efficiency, where Parliament can’t check everything, so the public’s voice fills in.

In the end, this dance of listening and rule-making is all about balancing what’s practical and what’s right. Or maybe it’s about giving people a say. Or maybe it’s just another layer of confusion. Either way, consultation makes sure the rules aren’t just for the rule-makers.

The Committee on Subordinate Legislation has been talking a lot about how to tighten Parliament’s control over the rules that come from it. They said, no, insisted, that the courts should still be able to look at these rules and question them if needed. But then again, maybe they meant that rules should just stick to their boundaries, without any outside poking. Actually, maybe they meant both things at once.

They were also clear: no taxes or new charges should come from these rules. That’s Parliament’s job, not for anyone else. Yet, maybe sometimes it’s okay if rules just fill in a few gaps, but only if Parliament says so. Wait, maybe that’s going too far.

They said the words in these rules must be plain and easy, so no one’s left guessing. Or maybe they meant the words should be full of meaning but not heavy on legal-speak. Unless that’s confusing, in which case it shouldn’t be.

They also said rules shouldn’t  be applied retroactively. Unless the parent law says so, of course. And rules can’t single out any group for worse treatment. Unless… no, actually, there is no unless there.

Above all, they want Parliament to stay the boss: clear plans, no funny business, no going beyond what’s allowed. And rules shouldn’t take forever, six months after the main law kicks in is enough. Or too much? Hard to say.

They want committees to really watch over this. They also said: let’s have a single law to make sure everyone does things the same way. That’s the heart of it, keeping rules fair, clear, and within reach of democracy.

“Power in a democratic society requires control, and the greater the power, the more need for control. How to vest power sufficient to the purposes in view and maintain adequate control without crippling authority is one of the historic dilemmas of popular government.”

• L.D. White.

Balancing authority and accountability in today’s governance is no easy feat. When it comes to delegated legislation in India, this balance becomes all the more important. Sure, delegated legislation is necessary, Parliament can’t possibly manage every tiny detail, so the executive steps in to fill the gaps. But here’s the catch: between 1973 and 1977, the executive churned out over 25,000 rules, while Parliament passed just about 300 statutes. That’s a massive difference, raising the question, how do we keep such power from spinning out of control?

There are safeguards, yes. Yet, ironically, they often end up gathering dust rather than keeping things in check. India’s quasi-federal setup and the fuzzy lines between legislative and executive powers only add to the problem. So, if Parliament doesn’t watch closely, who will? Strengthening parliamentary committees is a good start, maybe even bringing in experts to help them. And wouldn’t a law like the UK’s Statutory Instruments Act, which demands rules be formally presented before Parliament, make things clearer and fairer?

On the other hand, relying too much on Parliament could slow things down, maybe even choke the efficiency delegated legislation promises. But then again, if accountability is sacrificed, what’s the point? Ultimately, for democracy to work, Parliament needs to step up and keep a firm hand on delegated legislation, not just leaving it to courts or the executive. Only then can we truly say the people’s voice is heard, even in the small print of laws.

• Amanat Raza, Delegated legislation in India, iPleaders (June 5, 2025, 08:53 PM), https://blog.ipleaders.in/delegated-legislation-in-india/#.

•  D.C Pearce, Delegated Legislation in Australia and New Zealand, (6th ed. 1977).

• Hemant More, Parliamentary Control Over Delegated Legislation, The Legal Quotient, (June 5, 2025, 09:10), https://thelegalquotient.com/administrative-law/parliamentary-control/2386/.

• Pankhuri Swarnim ,Judicial, Legislative and Other Controls over Delegated Legislation in India, INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES, Vol.3, 1362, 1369-1371, (2020).

• Rules of Procedure & Conduct of Business in Lok Sabha, Rule 317 – 322 (India); Rules of Procedure & Conduct of Business in the Council of States (Rajya Sabha), Rule 204 – 212 (India).