BPSC Judicial Services Administrative Law notes pdf in English

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Administrative Law of India Question Answer

INDIRECT CONTROL/ SCRUNITY COMMITTEES
Object: As discussed above, laying on the table has not always been held to be mandatory. Even if that requirement is complied with, mere laying of rules before Parliament would not be of much use, unless the rules were properly studied and scrutinized. And, therefore, with a view to strengthening Parliamentary control over delegated legislation, Scrutiny Committees are established. In India, there are two Scrutiny Committees:
1) the Lok Sabha Committee on Subordinate Legislation
2) the Rajya Sabha Committee on Subordinate Legislation
This control is exercised by Parliament through its committee. In 1950 the law minister made a suggestion for the establishment of committee of the House on the pattern of the select committee on Statutory Instruments, 1944 to examine delegated legislation and bring to the notice of the house weather administrative rulemaking has exceeded the intention of the Parliament or has departed from it or has affected any fundamental norm for principal. Such committee known as committee on subordinate legislation of Lok Sabha was appointed on 1st December 1953 the committee consisted of 15 members nominated by the speaker for a period of 1 year, the chairman is appointed by the speaker from amongst the members. If the deputy speaker happens to be member then he shall act as chairman. In England, the healthy tradition is that the leader of the opposition is always appointed as chairman. The committee has the power to appoint subcommittees and refer any matter for its concentration. It also has the power to compel the attendance of any person and to compel the production of documents and records. The powers of the Indian committees are much wider than its counterpart. In England, the committee can only ask government departments to send memos or to depute a person to appear before it as witness.
According to rule 223 of Lok Sabha rules of procedure, the main function of the
committee shall be to examine the following:
1. Whether the rules are in accordance with the general object of the act.
2. Whether the rules contain any matter which could more properly be dealt with in the Act.
3. Whether it contains imposition of tax.
109
4. Whether it directly or indirectly bars the jurisdiction of the court.
5. Whether it is retrospective.
6. Whether it involves expenditure from the consolidated fund.
7. Whether there has been any justifiable delay in the publication for laying.
8. Weather, for any reason, it requires further elucidation. This committee has between 1953 and 1961 scrutinized about 5300 Orders and rules, and has submitted 19 reports. There is also a similar committee of the Rajya Sabha which was constituted in 1964. It discharges functions similar to the Lok Sabha committee. The committee on subordinate legislation has made the following recommendations in order to streamline the process of delegated legislation in India:
1. Power of Judicial review should not be taken away or curtailed by the rules.
2. A financial Levy or tax should not be imposed by rules.
3. Language of the rules should be simple and clear and not complicated or ambiguous.
4. Rules should not be given retrospective operation, unless such a power has been expressly conferred by the parent Act, as they may prejudicially affect the vested rights of a person.
5. Legislative policy must be formulated by the legislature and laid down in the statute, and power to supply details may be left to the executive, and can be worked out through the rules made by the administration.
6. Sub delegation in very wide language is improper and some safeguards must be provided before a delegate is allowed to sab delegate his authority to another functionary.
7. Discriminatory rules should not be framed by the administration.
8. Rules should not travel beyond the rule making power conferred by the parent Act.
9. They should not be in ordinate delay in making rules by the administration.
10. The defects pointed out to the administration should be declared as soon as possible.
11. The rules framed by the administration and required to be laid before the house by the parent Act should be late before Parliament as soon as possible, and whenever there is inordinate delay, an explanatory note giving the reasons for such delay should be appended to the rules so laid.
12. The final authority for interpretation of rules should not be with the administration.
13. Rules should contain short titles explanatory notes, references to earlier amendments for convenience of location, ready references and proper understanding.
14. Sufficient publicity should be given to the statutory rules and orders. In India parliamentary control of Administrative rulemaking is to be made a living continuity as a constitutional necessity, it is necessary that the role of the committees of Parliament must be strengthened, and a separate law like the statutory Instruments Act 1946, 110 providing for uniform Rules of laying and Publication, must be passed. The committee may be supplemented by a specialised official body to make the Vigilance of Administrative rulemaking
more effective.

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Administrative Law of India Question Answer

ADVANTAGES AND DISADVANTAGES OF THE DELEGATED LEGISLATION.

I. ADVANTAGES OF THE DELEGATED LEGISLATION:

Delegated legislation in the modern welfare state has certain advantages which can be broadly summarised as follows
1. Modern legislators are crowded legislative and other activity do not have time to provide for details, therefore, delegated legislation frees the legislature from concern with details and thus enables it to concentrate its attention upon the enactment of the fundamentals of a policy.
2. Since rules are more easily amended then statutes, it becomes easier to correct mistakes and to meet changing conditions if the difficulty concerns details rather than the basic policy. Thus, delegated legislation brings flexibility to legislation.
3. Modern legislation often deals with the matters of highly technical nature. The members of the Legislature may not have the expert knowledge that is necessary for providing the technical details. Delegated legislation can provide such expert knowledge as is necessary.
4. The administrator is the person who has intimate contact with the problems covered under the legislation. Therefore, if details of working out the policy of the legislation are left to be framed by the administrator, he can, by trial and error, work out the specific regulations best calculated to attain the statutory objectives.
5. In the absence of delegated legislation it is possible that the discretion given to the administration will be very wide. Therefore, it is much better to regulate the discretion given by the statutory generalities by framing specific and concrete rules.
6. In certain circumstances the coming into effect of a particular legislation may be made dependent upon the fulfilment of certain conditions. In such circumstances, given power to the administration to bring into effect a particular legislation may be very useful.
7. In emergencies such as war, serious strikes and economic crisis, there would often not be time to pass an Act, of legislation even if the legislature was in session. Quite often, such a legislature may not be in session. In such circumstances, the rule making powers under an Act laying down broad policies may be very useful. For example, the rule making powers given under the Defence
of India Act, 1962, were very useful in regulating the various aspects of the life of the nation with
a view to promoting defence measures.

II. DISADVANTAGES OF THE DELEGATED LEGISLATION

Disadvantages of delegated legislation are as follows

1. No Parliament deliberation: the essence of a democratic form of government is that the law passed by the legislature is the outcome of the collective wisdom of the representatives. It is in the celebration of the Parliament and the consequent action and reaction of opinion that makes a lot more acceptable to a community. But, in the case of delegated legislation, the rules are framed in
the ante-Chambers of the bureaucrat. Therefore, the benefit of parliamentary deliberation is completely denied to the such rule making process.
2. Public opinion cannot influence: in modern legislative procedure, the draft of a bill is published and is open for public examination and criticism. Therefore bye, Parliament can benefit by public criticism. In Delegated legislation, such prior publicity may not be always possible, and therefore, the process can benefit by the public criticism.
3. Private knowledge often denied: the modern system of administration of justice according to law is mostly based on the fiction that everyone is presumed to know the law. Everyone is presuming to know the law because law is certain and is a form which can be easily known. But, in the case of delegated legislation, there may not be either adequate publicity or the clear form of legislation. Further, the vast bulk of rules framed under various statutory enactments make it almost impossible for an ordinary citizen to know the rules.

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